Abolition Calling

  • Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 U.C.L.A. L. Rev. 1156 (2015).
  • Allegra M. McLeod, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, 8 Harvard Unbound 109 (2013), available at SSRN

Two recent articles by Professor Allegra M. McLeod, her 2013 essay, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, and her 2015 article, Prison Abolition and Grounded Justice, represent the most significant attention to the idea of prison abolition inside the legal academy for at least generation. The first builds toward the second, a powerful and broad gauge intervention in the current exciting moment of reform in criminal law and justice. Together they constitute some the most exciting new work on criminal justice I have read in sometime.

We stand at what increasingly seems like the most promising change point in decades in the criminal justice era. Academics, long out of the action find themselves facing two risks. If we too exuberantly carry forward the radical critique of criminal justice, at a time when the system seeks legitimacy from researchers, we may miss the opportunity to help build a more “evidence based” system and even contribute to an eventual public backlash in favor of a return to “get tough” punitive policies. The other risk is that we accept premature closure of the era of mass incarceration, embracing too many of presumptions about crime, high incarceration neighborhoods, and law enforcement competence that built and sustained the era of mass incarceration.   Professor McLeod’s essay and article are, along with the recent book Captured by Professor Marie Gottschalk of the University of Pennsylvania, Department of Political Science, the strongest efforts yet to push attention to the latter risk, of defining mass incarceration “down” in ways that will allow it to reshape and reformulate itself (perhaps into a system of mass probation or mass jailing). Continue reading "Abolition Calling"

 
 

Bringing Court Reasoning to the Surface

Elizabeth Y. McCuskey, Submerged Precedent, 16 NEV. L. J. __ (forthcoming 2016), available at SSRN.

In the modern age, there is no shortage of information. The internet and the tools it has inspired lead many—myself included—to feel overwhelmed by the sheer volume of what is out there. As a consequence, I came to Elizabeth McCuskey’s Submerged Precedent with some degree of skepticism. McCuskey, after all, argues that even more information—in the form of “submerged” district court opinions—should be made readily available. After reading this carefully researched and artfully written article, however, I am a believer. And I think you will be too.

First, what is “submerged precedent?” Although district courts do not create vertically or horizontally precedential opinions in the strictest sense, McCuskey argues that district court opinions contribute to how decisional law develops. She adopts a broad view of precedent—reaching any court opinion that provides reasoned arguments—which results in a large body of persuasive law. As McCuskey argues, however, the law can only be persuasive to the extent it is available to the parties, and consequently, to courts. This is where submersion comes into play. The question is which district court opinions are available and where. District court judges designate opinions that they deem to be particularly important as “published.” Those opinions then appear on Westlaw (or other legal databases such as Lexis, but for ease, I will refer to only Westlaw). Unpublished district court opinions may also appear on Westlaw, but only if the authoring judge designates them as “written opinions.” What remains “submerged” are reasoned decisions that do not carry these designations. Instead, they can only be found on databases such as PACER, which has limited search functionality and charges a fee for everything other than “written opinions,” or Bloomberg, which while more searchable, is quite expensive. These opinions constitute the submerged precedent about which McCuskey is concerned. Continue reading "Bringing Court Reasoning to the Surface"

 
 

Corporate Intent and Corporate Crime: A Matter of Inference

Mihailis Evangelos Diamantis, Corporate Criminal Minds, 91 Notre Dame L. Rev. ___ (forthcoming 2016), available at SSRN.

The Yates Memo emphasizes the need to fight corporate crime by imposing criminal liability on individual criminal perpetrators. But critiques of corporate deferred prosecution agreements and cascades of examples of corporate criminality involving crimes such as bribery, manipulation, tax evasion and sanctions-busting raise questions about criminal liability of corporations as well as the liability of individual wrongdoers. Whether sanctioning individuals or the corporations they work for would be more effective in achieving deterrence or vindicating society’s interest in ensuring legal compliance and sanctioning legal violations is an empirical question. But improving the rules about corporate criminality does not require abandoning efforts to sanction individual criminality.

The problem Mihailis Diamantis addresses in this article is not a new one: corporations may be subject to civil and criminal liability for their acts, but assigning criminal liability to a corporation depends on an “antiquated gimmick—respondeat superior,” which focuses on attribution of employees’ intent to the corporation, rather than on any real theory. Diamantis states that respondeat superior results in assigning criminal liability to corporations where the criminal acts resulted from the actions of a few rogue employees, and insulating the corporation from criminal liability inappropriately merely because no single employee has the requisite mens rea. He argues that whereas respondeat superior may have made sense as the basis for the attribution of mens rea in the context of small corporations it makes no sense in the context of large complex modern business enterprises. Corporate personhood may be a legal fiction, but it is one to which the law is committed, and therefore it is necessary to be able to identify the mental state of these fictional persons. Continue reading "Corporate Intent and Corporate Crime: A Matter of Inference"

 
 

The Perils of State Standing, Revisited

Alexander M. Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79 (1966).

For those who teach and write about the federal courts and/or constitutional law, Alexander Bickel’s 24-page review of how the Voting Rights Act fared in the Supreme Court – a lucid dissection of South Carolina v. Katzenbach, Harper v. Virginia State Board of Elections, and Katzenbach v. Morgan — would almost certainly be worth a read as a pure matter of historical (and academic) curiosity.

What’s particularly salient about Bickel’s analysis, though, is its contemporary relevance along at least two axes. First, it provides the outlines of a rejoinder to the Supreme Court’s 2013 conclusion that key provisions of the VRA are unconstitutional (for economy of space, I’ll leave this issue to the interested reader). Second, and, even more significantly, it makes perhaps the most emphatic argument against broad state standing in lawsuits challenging the scope of federal government policies — including Virginia’s rejected challenge to the Affordable Care Act’s individual mandate and Texas’s pending challenge to President Obama’s “deferred action” immigration policy. Thus, although no one needs convincing that Bickel was the first among equals, contemporary readers might benefit from this relatively short and less well-known piece of his. Continue reading "The Perils of State Standing, Revisited"

 
 

Too Much of a Good Thing

Jacob E. Gersen & Matthew C. Stephenson, Over-Accountability, 6 Journal of Legal Analysis 185 (2014).

Many an administrative law article ends with a simple and appealing recommendation: “just add accountability!” Accountability, along with institutional expertise and democratic legitimacy, is one of the key yardsticks that frames evaluations of the legal rules and institutions of the regulatory state. Why might judicial deference to agency interpretations of statutes be desirable? Because agencies are more politically accountable than courts. Why might privatization be worrisome? Because corporations are less accountable than agencies. Accountability, like motherhood and apple pie, is something we can all safely get behind.

Or is it? In Over-Accountability, Jacob Gersen and Matthew Stephenson look at the downsides of augmenting the accountability of political institutions. Lots of ways exist to add accountability to governmental decision-making: one could have more elections, or concentrate power in a “unitary” executive, or reduce the power of politically unaccountable Article III courts. As the authors point out, these and other such accountability-enhancing moves might actually have a surprising and perverse consequence: they might exacerbate bad behavior by the government. Continue reading "Too Much of a Good Thing"

 
 

The History, and Worrying Contemporary Relevance, of Anti-Trust Law for Non-Traditional Worker Organization

Sanjukta Paul, The Enduring Ambiguities of Antitrust Liability for Worker Collective Action, 47 Loy. U. Chi. L.J. ___ (forthcoming 2016), available at SSRN.

As someone interested both in the history of workplace law and in modern forms of worker organization, but not especially well-versed in antitrust law, I was delighted to read, and learned a lot from, Sanjukta Paul’s excellent article. The piece starts with a troubling suggestion I have not seen seriously addressed elsewhere: antitrust law could be used against workers engaged in collective action if those workers are not traditional employees: e.g., against low-wage independent contractors. After showing this is a legitimate concern, Paul provides a rich description of the history of antitrust law (including but not limited to the “labor exemption”). She then makes a convincing argument that while current antitrust law could be applied to such collective action, it should not be. While her history is ultimately aimed at a modern issue, this is not “law office history.” Indeed, her detailed discussion of the development of both antitrust and labor law (a rare combination) would be a worthwhile contribution to the historical literature by itself. Linking it to a modern question makes the piece even more valuable.

Paul starts with a vignette about a 1999 federal antitrust investigation into potential price-fixing by striking port truck drivers who were not “employees.”  This leads her to the early days of labor and antitrust. She argues that before the New Deal, courts “dominated by classicists who were concerned primarily with freedom of trade and contract, imported fundamentally hierarchical and coercive assumptions regarding workers” into the Sherman Act. (P. 2.) In so doing, the courts “relied upon status-based normative assumptions that violated their own freedom of contract principles.” (P. 2.) Worker collective action was thus presumptively illicit. The “labor exemption” the Supreme Court ultimately created in the 1940s was the exception, not the rule, and arguably might not apply to independent contractors. Continue reading "The History, and Worrying Contemporary Relevance, of Anti-Trust Law for Non-Traditional Worker Organization"

 
 

Mapping Chinese Trusts with a Patrimony Compass

Kai Lyu, Re-Clarifying China’s Trust Law: Characteristics and New Conceptual Basis36 Loy. L. A. Int’l & Comp. L. Rev. 447 (2015).

Kai Lyu explains some of the unique characteristics of Chinese trust law in Re-Clarifying China’s Trust Law: Characteristics and New Conceptual Basis. China’s civil law basis makes for a strange soil in which to transplant (and codify) a common law concept such as the law of trusts, which owes its origins to Medieval England. But other jurisdictions (Japan and South Korea, for example) have adopted trust law without generating the odd mutations that China has. What happened and how can one approach an understanding of the unique creation that is Chinese trust law?

The two principle unorthodoxies with trust law in China are the ambiguous title to the trust res and the almost unrestrained retained powers of a settlor that the 2001 trust act (enacted by the National People’s Congress after two false starts in 1996 and 2000) generated. Lyu grounds the thinking of the Chinese legislators in the law of contracts, and identifies how contract law falls short as a theory in explaining trusts, even—or perhaps especially—Chinese trusts. Instead, Lyu proposes, Roman law’s patrimony theory provides a lens for understanding the unique characteristics of Chinese trust law. Continue reading "Mapping Chinese Trusts with a Patrimony Compass"

 
 

Stealth Ways to Keep Tort Cases from African-American Juries

Donald G. Gifford & Brian M. Jones, “Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law,” __ Wash. & Lee L. Rev. __ (forthcoming 2016), available at SSRN.

What do Alabama, Maryland, North Carolina, Virginia, and Washington D.C. have in common? Answer: They all apply the doctrine of contributory negligence to tort cases. Indeed, they are the last five contributory negligence outposts; the rest of the United States has long since moved on to comparative fault regimes of one form or another.

They are, moreover, all located in the South. And according to Donald Gifford and Brian Jones, this is no coincidence.

In their provocative article, Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law, Gifford and Jones argue that certain states cling to contributory negligence and other “anti-plaintiff” tort doctrines to prevent cases from being decided by juries. The most worrisome aspect of their thesis is that this concerted effort to insulate cases from juries is most pronounced in Southern states whose major urban centers include significant African-American populations. Continue reading "Stealth Ways to Keep Tort Cases from African-American Juries"

 
 

Understanding Law by Doing Anthropological Fieldwork

Francis Snyder, The Contribution of Anthropology to Teaching Comparative and International Law in The Trials and Triumphs of Teaching Legal Anthropology in Europe (Marie-Claire Foblets, Gordon Woodman and Anthony Bradney eds., 2015), available at SSRN.

Empirical approaches to law are commonplace now, but once they were rare and occasionally looked down on by classically trained lawyers who favored doctrinal methods of analysis. Francis Snyder’s engaging paper on the contribution of anthropology to teaching comparative and international law raises questions and issues on empirical law. Economics and law is probably the best known and most widespread combination of social science and law, although law and society was the first entrant to this new academic field. Law imports many concepts and methods from sociology, psychology, history and others. And yet legal education still struggles with how to incorporate these other disciplines into its syllabus. How then is legal education affected by incursions from other fields? For American readers the research discussed by Snyder takes place outside the US although recent work on legal ethnography by Eve Darian-Smith, The Crisis in Legal Education: Embracing Ethnographic Approaches to Law brings it firmly back onshore.

Snyder came to anthropology indirectly, first as a political scientist interested in one-party government in Mali, second as a research assistant for a Chinese law professor, and thirdly in doing a PhD in Paris on comparative law and legal anthropology (p. 1). These early experiences fed through into his teaching of comparative law in Canada. It was while at Warwick, the home of law in context, that Snyder introduced the anthropological framework into EU law and its Common Agricultural Policy (CAP), the key common policy of the EEC. Instead of analysing rules and decisions, Snyder examined the formation of CAP from the ground up, how the different political actors negotiated with each other, and how the policy impacted on farmers and consumers. In extending this into food policy, students were required to negotiate, draft and apply rules in relation to the regulatory regime for lamb meat. This was part of Warwick’s drive to incorporate non-legal materials into legal subjects. (See the Law in Context series by CUP for further examples.) These approaches were reinforced by the tackling of bigger topics such as globalisation and China and establishing a new journal, the European Law Journal, which encouraged alternatives to black-letter law. Continue reading "Understanding Law by Doing Anthropological Fieldwork"

 
 

Tax Havens and the Rise of Inequality

Gabriel Zucman, The Hidden Wealth of Nations (2015).

Tax literature is bitterly divided on the role that tax havens play in global economy. The negative view of tax havens paints them as parasitic, poaching revenue from other jurisdictions. The positive view suggests that tax havens facilitate low-cost capital mobility, mitigating some of the distortive effects of taxation.

To date, this extensive scholarly debate has produced very little information on tax havens themselves. This is hardly surprising, since tax havens are well known to be secrecy jurisdictions. This aspect of tax havens forces scholars who write about them to resort to financial modeling or available country data – data which is rarely on point. Zucman’s book is a unique breed in this context. In order to address the role of tax havens in global economy, Zucman actually collects and interprets the necessary data. Zucman assesses the wealth held in tax havens based on a long lasting anomaly in public finance: that in the aggregate, more liabilities than assets are recorded on national balance sheets, as if a portion of global assets simply vanishes into thin air, or as Zucman put it: “were in part held by Mars.” Zucman meticulously collected macro-economic data of multiple jurisdictions, and discovered that roughly the same amount of assets missing from national balance sheets shows up as ownership interest in investment pooling vehicles (such as mutual funds) organized in tax havens. Continue reading "Tax Havens and the Rise of Inequality"

 
 

Property as a Vehicle of Inclusion to Promote Human Sociability

Daniel B. Kelly, The Right to Include, 63 Emory L.J. 857 (2014), available at SSRN.

Quite often, “private property” brings with it characterizations of individualism, isolation, and exclusion along with images of fences, gates, locks, boundaries, and barriers. In fact, a “keep out” sign has often been identified as a symbol for the essence of private property rights and their function. Professor Daniel B. Kelly reminds us that such images and characterizations miss a huge portion of the utility served by property law that fosters the capacity and motivation to hang a different sign—one that says “come on in.” Professor Kelly’s recent article, The Right to Include, 63 Emory L.J. 857 (2014), catalogs and analyzes the range of legal options available to owners to include others in the use, possession, and enjoyment of real property.

In recent property law literature, the “right to exclude” has gotten most of the ink. In fact, Kelly explains that, “[i]n delineating the bundle of rights that characterizes property, courts have not identified the right to include as a distinct attribute of ownership,” (P. 868) and most scholars have only hinted at the importance of this separate strand of rights within ownership. Professor Kelly’s work is a welcome rectification of this imbalance of affection. If indeed human beings are dependent on each other to survive and flourish, then finding ways to facilitate inclusiveness in relation to property is vital to nourishing our “interaction imperative.” Kelly thoroughly explores the rules and doctrines in property and related fields of law that have emerged to ignite inclusion and spur human sociability. Continue reading "Property as a Vehicle of Inclusion to Promote Human Sociability"