Looking Intersectionally and Seeing Structural Bias

Every day, across the criminal justice system, state and private actors wield discretion in making decisions: Is a girl standing before a police officer, prosecutor, child welfare official, or social worker a victim in need of protection or a perpetrator, in need of punishment? Does she need harsh correction or gentle, resource-rich protection? Is she a prostitute or is she a victim of trafficking? In (E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors, Priscilla Ocen presents compelling data suggesting that these discretionary decisions open a door to the exercise of implicit bias and lead to devastating outcomes, disproportionately removing Black girls from the realm of protection embodied by anti-trafficking laws and placing them squarely in the hands of the punitive mechanisms of the juvenile justice system. These facts are tremendously important but, sadly, not surprising. They only add to the wealth of information definitively establishing the disproportionate negative outcomes for Black women, men, boys, and girls in the social welfare, child welfare, criminal, and juvenile justice systems.

While the statistics are jarring, the important questions to ask are causal: Given that Black girls are disproportionately vulnerable to exploitation and disproportionately victimized, why, as a society, do we tolerate them being disproportionately punished? Why are they not, as both the data and intersectionality theory might suggest they should be, at the very center of our efforts to protect girls? Continue reading "Looking Intersectionally and Seeing Structural Bias"

 
 

How Do Lawyers’ Expertise Matter in Ordinary Litigation?

Lawyers play important roles in litigation. To scholars and law practitioners, this statement sounds almost like a truism. To be sure, if millions of people pay hefty fees to retain lawyers in litigation, then the expertise that these lawyers possess and the services that they provide must be valuable. However, which part of lawyers’ expertise makes a bigger difference in ordinary litigation? Their knowledge of the law? Their familiarity with legal procedures? The social networks and relations that they develop with others? Or the symbolic power of their licensing and professional credentials? In the scholarship on the legal profession, all these aspects of lawyers’ expertise have been investigated through case studies and ethnographic work, such as Sarat & Felstiner’s (1995) work on how divorce lawyers control and construct their clients, Herbert M. Kritzer’s (2004) analysis of contingency fee lawyers as gatekeepers of the justice system, Mather, McEwen, and Maiman’s (2001) study on the collegial community of divorce lawyers, and so on. Nevertheless, there had been little systematic effort to test the effects of lawyers’ expertise in ordinary litigation using statistical methods and meta-data, until Rebecca L. Sandefur’s 2015 article Elements of Professional Expertise in the American Sociological Review.

In this article, Sandefur distinguishes between two types of expertise, substantive and relational, following Barley’s (1996) definitions. Substantive expertise is “concerned with professions’ peculiar categories and theoretical frameworks,” including “understanding both substantive law – statutes, doctrines, legal principles, and relevant past cases – and legal procedures.” (P. 911.) By contrast, relational expertise involves understanding “how to navigate the relationships involved in getting the work done” and “the social distribution of knowledge and discretion in the actual relationships through which professional work takes place.” (P. 911.) Whereas substantive expertise is “abstract” and “principled,” relational expertise is “situated” and “contextual.” (P. 911.) Both at are work in the practice of lawyers and other professionals, though relational expertise probably plays a bigger role in the work of lawyers than that of doctors or engineers given the strong relational nature of legal work. Continue reading "How Do Lawyers’ Expertise Matter in Ordinary Litigation?"

 
 

Common Law in the Age of Arbitration

Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016).

Judge-made law is dynamic. Rules adapt to innovations in technology, trends in human behavior and markets, and nascent theories that unsettle previously entrenched approaches to a problem. Even when a rule’s basic elements are stable, the accretion of new decisions can lead to subtly different formulations, caveats, and corollaries. Observers might therefore assume that doctrine in any given field will evolve for as long as affected actors are creative and litigious.

But even litigious actors cannot instigate changes to judge-made rules if litigation cannot lead to new judicial opinions. Myriam Gilles proposes a thought experiment to illustrate this possibility in her new article. Suppose that all cases in field X were suddenly shunted to arbitration, such that courts had no further opportunity to write opinions expounding on the law of X. Further suppose that choice-of-law provisions required arbitrators to apply judge-made rules governing X and that arbitrators would not write detailed opinions explaining their decisions (or that their opinions would be inaccessible to nonparties). In this hypothetical regime, the common law of X would stagnate. Doctrine would remain on the books as a source of guidance for arbitrators addressing the idiosyncrasies of individual cases. But those idiosyncrasies would no longer be catalysts for refining the publicly articulated rules that arbitrators apply. Judge-made law would shape outcomes, yet outcomes would not reshape the law. Continue reading "Common Law in the Age of Arbitration"

 
 

Law, Legend, and Forgotten Histories of Survivance

In 2016, legal history is a capacious field – one with a catholic view of what counts as law and a willingness to find legal significance in a wide range of places. Katrina Jagodinsky’s Legal Codes and Talking Trees challenges legal historians to be even more inclusive, especially in the voices we seek to hear and the sources we mine. By pairing underused state and territorial court records with oral histories, legends, local newspaper records, and intricate genealogical research, Jagodinsky offers an all-too-rare glimpse of the experiences and perspectives of Indigenous women in the nineteenth and early twentieth centuries, as they navigated formal legal systems that were not their own.

Legal Codes and Talking Trees centers on the legal encounters of six Indigenous women in “borderlands” communities, spaces marked by competing territorial claims, overlapping legal jurisdictions, and mixed populations. Three of the cases come from the Sonoran Southwest (encompassing parts of present-day Arizona, California, and Northwest Mexico) and three from the Puget Sound region (including parts of present-day Washington and British Columbia). Jagodinsky selected these two regions because of the different approaches that white settlers took to the Indigenous populations there. But when it came to Indigenous women’s “bodies, progeny, and lands,” she discovered “remarkably similar demands from [American] citizen men and women” (P. 11). Continue reading "Law, Legend, and Forgotten Histories of Survivance"

 
 

Whistling for the Dog in Affirmative Action

Reviewing Khiara Bridges, The Deserving Poor, The Undeserving Poor and Class-Based Affirmative Action, 66 Emory L.J. (forthcoming 2017), available at SSRN.

The link between race and class inequality is a hot topic. The top two anti-establishment movements of the year are Black Lives Matter and Bernie Democrats, and the relationship between them is complicated. In addition, Donald Trump has built a campaign appealing to white middle- and working-class voters by blowing the racism dog whistle. Figuring out why those voters continue to support Trump despite (or because of) his racism is the question of the hour on my Facebook feed.

Which is why I was excited to see Khiara Bridges’ latest paper on class-based affirmative action (from here on, I’ll call it “class-based AA”) pop up in my inbox. Far from the heat of the election, Bridges has written a wonderful article that explores the race-class divide among supporters of affirmative action. In this paper, Bridges argues that class-based AA enjoys widespread bipartisan support because its beneficiaries are white. More specifically, she argues that continuing support for class-based AA depends on differentiating between poor whites as people who deserve to benefit from class-based AA and undeserving poor people of color, who should not. Indeed, she concludes, support for class-based AA might well dry up if people of color were to become class-based AA’s primary beneficiaries. Continue reading "Whistling for the Dog in Affirmative Action"

 
 

The Cruel Optimism of Human Rights and Legal Justice

Cyra Choudhury

Cyra Choudhury

In her article Precarious Desires and Ungrievable Lives: Human Rights and Postcolonial Critiques of Legal Justice, Ratna Kapur argues that for the vast majority of subordinated peoples, faith in international human rights and, indeed, in law as a vehicle to achieve equality, recognition, and redress for harm has often been misplaced. For sexual subalterns in particular, liberal legal institutions and laws are part of and promulgate a heterosexist normative order that constantly refashions these precarious desires and their justice claims into conformity with that order. Kapur suggests that instead of investing our energies as activists in law, we should rethink our notions of justice by moving away from the constraints of liberal legalism to more affective and postcolonial registers.

There are three points that make this article particularly important and a welcome addition to the critical literature on international human rights. First, it asks us to question whether human rights activism and the law are the best, let alone only, mode of engagement for subordinated populations. Second, it directs our attention to that which is often lacking in law in general and international law in particular: the affective, lived experiences of the subject of rights. In particular, for LGBT people, the article makes visible the uncomfortable and cruel optimism of human rights in an already dominant heteronormative order. And it reminds of the postcolonial critique of liberalism and liberal rationality. Continue reading "The Cruel Optimism of Human Rights and Legal Justice"

 
 

Speaking from the Grave. Should Copyright Listen?

Eva E. Subotnik, Artistic Control After Death, 92 Wash. L. Rev. (forthcoming 2017), available at SSRN.

Should authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review).

Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s integration into artistic or literary culture, under the law, heirs and literary estates have the power to exercise control over the work’s continued use and dissemination. Continue reading "Speaking from the Grave. Should Copyright Listen?"

 
 

The Case for Integrating Health Care and Social Services

Elizabeth H. Bradley & Lauren A. Taylor, The American Health Care Paradox: Why Spending More is Getting Us Less (2013).

Although the U.S. spends far more per person on medical care than any other nation, the results have been less than impressive. Relative to other developed nations, the U.S. consistently performs worse on a wide range of health measures, including infant mortality, premature deaths, life expectancy, and prevalence of heart disease, diabetes, and other chronic illnesses. Many health care experts have pointed to inefficiencies in our health care system as the cause for this paradox. Bradley and Taylor identify another culprit — too little attention to the social, environmental, and behavioral factors that impact health.

The book begins with a summary of the authors’ previous research comparing spending on health care and social services among OECD countries. This research found that when spending on health care is combined with spending on social services, the U.S only ranks in the middle of OECD countries. More importantly, the U.S. is an outlier when comparing the ratio of a nation’s social to health spending, with the U.S. allocating a far greater share of its gross domestic product to health care than to social services. This suggests that the U.S. is shortchanging the social services that help people live healthier lives, including public health, housing, education, community safety, and income support. The authors’ conclusion finds support in their recently published study comparing state spending, Variation in Heath Outcomes: The Role of Spending on Social Services, Public Health, and Health Care, 2000-09, 35 Health Affairs 760 (May 2016), which found that states with a higher ratio of social to health spending had better health outcomes. Chapter 3 of the book brings the data to life by profiling three individuals who incurred significant (and expensive) health problems when their social and behavioral health needs went unmet. Continue reading "The Case for Integrating Health Care and Social Services"

 
 

Inconsistency, Marriage Equality, and Legal Change by Stealth

Cynthia Godsoe, Adopting the Gay Family, 90 Tul. L. Rev. 311 (2015).

Obergefell v. Hodges and the cases that preceded it present a perplexing paradox. On the one hand, opponents of marriage equality vigorously argued that marriage should be limited to opposite-sex couples in the interest of children, as traditional marital families offered the optimal setting for childrearing. On the other hand, most of the opponents’ home states placed foster children with LGBTQ foster parents and allowed LGBTQ individuals to adopt children. On the surface, these conflicting impulses might simply have resulted from the confusion of multiple actors and advocates at different levels of government. In the insightful hands of Cynthia Godsoe, however, these contradictions disrupt traditional narratives of marriage equality and legal reform, demonstrate the power of quiet intersectionalism and coalitions, and illustrate how diverse family structures can drive social change.

In Adopting the Gay Family, Godsoe delves into the disparate treatment of gay parenthood and gay marriage to show how adoption became a “stealth path” to marriage equality. As she explains, from the beginning, the push for gay adoption relied on a coalition of vulnerable groups. In the 1970s, unable to find homes for teenagers “with homosexual tendencies,” a few jurisdictions turned to gay and lesbian adoptive parents to take in children that the rest of society rejected. Similarly, in the 1980s, adoption agencies confronting the challenges of placing HIV-positive babies affirmatively sought LGBTQ adoptive and foster parents. Continue reading "Inconsistency, Marriage Equality, and Legal Change by Stealth"

 
 

Taking the Classroom Beyond the Building’s Walls

John Borrows, Outsider Education: Indigenous Law and Land-Based Learning, 32 Windsor Yearbook on Access to Justice (forthcoming 2016).

John Borrows is a lead actor in the cast that makes it worth being part of the play of life. He’s always thoughtful and interesting; his scholarship thick with love. And I love reading his work.

In Outsider Education he appears as himself – teasing the reader with an introductory paragraph that leaves you wondering if he’s going to make an argument for old school legal education by apprenticeship, then turning the whole thing on its head. It’s not an argument for white men training white men in book-heavy chambers over sherry; it’s a reminder that Indigenous legal education in North America prior to European arrival kicks it even more old school. Continue reading "Taking the Classroom Beyond the Building’s Walls"

 
 

Noticing, and Commenting on, Settlements

Courtney R. McVean & Justin R. Pidot, Environmental Settlements and Administrative Law, 39 Harv. Envtl. L. Rev. 191 (2015).

As a wet-behind-the-ears lawyer in the U.S. Justice Department’s Environmental Enforcement Section, I tried two cases to judgment in my first three years of practice. During fifteen years at the DOJ thereafter, almost every case I touched – including some during a brief stint as an appellate lawyer – settled. So this succinctly-titled article immediately caught my eye.

In Environmental Settlements and Administrative Law, Courtney McVean and Justin Pidot focus not on enforcement litigation but on how the federal government settles cases in which agencies are sued for allegedly violating environmental statutes. McVean (a 2014 graduate of the University of Denver Sturm College of Law) and Pidot (a former DOJ attorney who was then an Assistant Professor at Denver) consider the persistent criticism that the Executive Branch’s settlement practices make policy in ways that violate administrative law norms. Their careful analysis concludes that most environmental settlements are consistent with the procedural constraints of administrative law and that existing judicial review mechanisms are adequate to correct the occasional settlements that overreach. Continue reading "Noticing, and Commenting on, Settlements"