A Brave and Honest Examination of the Complexity of a Feminist Defence Ethos

Abbe Smith, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, 53 Am. Crim. L. Rev. (forthcoming 2016).

Reading the work of those writing from a different perspective has been productive to the development of my own thinking. Abbe Smith’s forthcoming article, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, is no exception. Like her other scholarship, Representing Rapists is impeccably written, thoughtful, and well reasoned. What makes this work exceptional is its brutal honesty. With its steadfast transparency and willing self-reflection, the article is downright brave.

Abbe Smith, a well known legal ethicist and criminal lawyer, has committed much of her professional attention to theorizing and defending the need for unmitigated zeal in the representation of the criminally accused – including, of course, those accused of sexual offences. With a view to better protecting sexual assault complainants, I have dedicated a lot of scholarly attention in the last few years to developing feminist arguments in support of the ethical limits on defence lawyers who represent clients accused of sexual offences. Where our perspectives likely differ most is with respect to the cross-examination of sexual assault complainants. Continue reading "A Brave and Honest Examination of the Complexity of a Feminist Defence Ethos"

 
 

Context Shouldn’t be Everything: Online Libel and Evolving Standards of Liability

RonNell Anderson Jones & Lyrissa Barnett Lidsky, Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World, Va. J. Soc. Pol’y & L. (forthcoming 2016), available at SSRN.

Though it can be uplifting and life affirming to read law review articles written by people you almost always agree with, better cerebral benefits are usually obtained from reading the writings of people who challenge your ideas and force you to reconsider your views a bit. Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World by Lyrissa Barnett Lidsky and RonNell Andersen Jones, forthcoming in the Virginia Journal of Social Policy and the Law, is an engaging article that taught me a lot about the state of online defamation litigation.

Both co-authors tend to be more libertarian about the First Amendment than I am, so I always learn a lot from reading their scholarship. I also appreciate their clear and accessible writing. The older I become, the less patience I have for tangled prose, poor organization and conclusions so thick with ambiguity you have to eat them with a fork. Though the previous sentence reflects my exercise of the opinion privilege, the bad writers responsible will remain unnamed, due to the actual malice that infuses those words. (A good companion piece to this excellent article is The Death of Slander by Leslie Yalof Garfield.) Continue reading "Context Shouldn’t be Everything: Online Libel and Evolving Standards of Liability"

 
 

Bringing Values Back

Cecilia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. 101 (2015).

To build coalitions on controversial issues where worldviews collide, you have to search for common or at least less contentious ground. Disagree on the rights and wrongs of the death penalty? Rather than moral head-butting over abolitionist legislation, let’s talk instead about the millions of extra taxpayer dollars spent on trying to attain capital sentences that may never be carried out. Disagree on whether mass incarceration is a moral and humanitarian crisis or sound safety protection? Rather than shouting past each other, let’s talk instead about a common denominator of concerns over the crippling costs to taxpayers of paying for overstuffed prisons. Money talk may bridge impasses and offer a seemingly more neutral way out of the morass of competing worldviews.

Similarly, now that there is a historic convergence of interests around decarceration, concerns over the perils of releasing prisoners and recidivism risks are addressed by the promise of scientific selection. Evidence-based is a hot buzzword in everything from medicine to corrections. The appeal and authority of the notion of evidence-based practices is the promise of an objective rigorously evaluated foundation to justify decisions. Evidence-based corrections reassures communities and the nation that risks will be managed scientifically and costs and benefits meticulously balanced.

Cecilia Klingele’s new article offers an excellent guide to the proliferation of evidence-based practices in the correctional context. She argues that while many evidence-based approaches aim to offer smarter alternatives to mass incarceration and reinvigorate rehabilitationism, the practices may also perpetuate and extend a culture of control. Most intriguingly, Klingele calls for a return to values and normativity. Continue reading "Bringing Values Back"

 
 

Process Failure on the Road to Obergefell

Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016), available at SSRN.

In The Process of Marriage Equality, Josh Blackman and Howard Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.

The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it. Continue reading "Process Failure on the Road to Obergefell"

 
 

A Right to Participate in the Electoral Process

Robert Yablon, Voting, Spending, and the Right to Participate, available at SSRN.

In McCutcheon v. FEC, Chief Justice Roberts described campaign contributions as a form of participation in electoral politics. His plurality opinion invalidating aggregate limits on contributions to federal candidates concluded that “[c]onstituents have the right to support candidates who share their views and concerns” and that representatives’ responsiveness to such concerns “is key to the very concept of self-governance through elected officials.” As commentators quickly noticed, there was something curious about this paean to democratic representation: the “constituents” the Chief Justice described were not eligible to vote for most of the candidates they were funding. They were not, in other words, constituents in the usual sense. Was this a mere “oops”? A deliberate, if subtle, move to reshape campaign finance law? Something else?

Robert Yablon’s insightful new article, Voting, Spending, and the Right to Participate, offers a fresh approach to this conundrum. Rather than dismiss McCutcheon’s arguments about political participation as rhetoric or subterfuge, Yablon engages the opinion’s suggestion that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders,” a right that may be exercised through the franchise or through monetary contributions. What would it mean, he asks, for our disparate law concerning voting and spending to instead conceptualize both as forms of participation in the electoral process? Continue reading "A Right to Participate in the Electoral Process"

 
 

Rethinking Parties and Politics in Administrative Law

Michael A. Livermore, Political Parties and Presidential Oversight, 67 Al. L. Rev. 45 (2015).

Ever since courts have recognized the legitimacy of political influence on agency policymaking, scholars have struggled to formulate a model of Administrative Law that describes an appropriate balance between such influence and agency expertise. The current reigning consensus – the Presidential Control Model – fails to satisfy many critics, especially in light of recent Presidential assertions of greater and greater power over the apparatus of administrative government. More recently, the heightened partisanship of federal government has added to concerns that presidential control does not assure that the administrative state is sufficiently responsive to the general polity and the public interest. Thus, it is surprising that up until now few scholars have explicitly analyzed the role of political parties in the operation of the federal administrative state, and none have tried to use the workings of contemporary parties to formulate a normative account of how politics should inform agency policymaking. Political Parties and Presidential Oversight by Michael Livermore takes a large and impressive first step to fill that analytic vacuum.

Livermore begins by reviewing the replacement of the local, patronage-driven party system that existed prior to the Kennedy Administration, with the modern national, professional and programmatically driven party system. He then summarizes arguments that the modern party system, along with candidate-centered politics, will drive Presidential elections towards candidates that implement the policy preferences of the majority or, more precisely, the median voter. Livermore rejects the candidate-centered model because Presidents do not seem to implement unifying policy agendas that reflect the position of the median voter. He therefore reinvigorates a theory of “responsible party government.” Continue reading "Rethinking Parties and Politics in Administrative Law"

 
 

Dismissing Discrimination

David Schraub, Dismissal (2016), available at SSRN.

In a recent article in The New York Times Magazine, sociologist Alice Goffman – author of an award-winning book that followed a group of African-American men in Philadelphia over six years – addressed accusations that her book presents an implausible account of police practices. When the magazine reporter sought corroboration from the police themselves about certain of these alleged practices, Goffman challenged the notion that “[t]he way to validate the claims in the book is by getting officials who are white men in power to corroborate them.” She continued, “The point of the book is for people who are written off and delegitimated to describe their own lives and to speak for themselves about the reality they face, and this is a reality that goes absolutely against the narratives of officials or middle-class people. So finding ‘legitimate’ people to validate the claims – it feels wrong to me on just about every level.”

In his new article, Dismissal, David Schraub takes aim at exactly the phenomenon that Goffman describes: the act of dismissal, by which “the interpretive frames proffered by [a] claimant [are portrayed] as illegitimate and the testimonial offerings of the claimant as irrational.” (p. 28.) (To be clear, neither Schraub nor this review engage with the substance of the criticisms of Goffman’s work, but rather to use her comments about corroboration and validation as a jumping-off point. Schraub does not discuss Goffman in his article.) Schraub is concerned both with courts’ dismissal of novel legal claims under Federal Rule of Civil Procedure 12(b), and with dismissal in its broader sense, “a decision (in any deliberative context) to dispense with a proffered claim prior to considering its merits.” (p. 3.) Continue reading "Dismissing Discrimination"

 
 

Shades of Discrimination Brought to Light

Nancy Leong, Negative Identity, 88 S. Cal. L. Rev. 1357 (2015).

Justice Kennedy raised some hackles when he said in Obergefell v. Hodges that “[m]arriage responds to the universal fear that a lonely person might cry out only to find no one there.” Some wondered how Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor—one widowed, one never married, and one long-single—must have felt to sign on to an opinion grouping them together with other souls “condemned to live in loneliness.” Others criticized the opinion’s rhetoric as unnecessarily demeaning to life outside of marriage. Justice Kennedy’s disparagement of single life might have been lamentable, but it usefully highlights a common experience of those who do not participate in the social institutions—sex, partnership, organized religion, and child-rearing—that society deems fundamental. Such individuals often find themselves the targets of marginalization, animus, or unfair treatment under the law.

In her thought-provoking article, Negative Identity, Nancy Leong brings together several of these identities—atheist, asexual, single, and childfree—and builds a case for their protection. Identity is a complicated subject and Leong takes care to define and defend her categories. Leong uses the term “negative identity” to refer to those identities marked by indifference or antipathy to something that much of society views as fundamental. These identities are negative in terms of opposition but not in terms of absence: the childfree, for example, do not merely lack children; they have chosen not to have children based on emotional commitments, personal and professional freedom, environmentalism, or simply a desire to allocate personal resources to other causes. By defining the term in this way, Leong means to distinguish between those who have affirmatively taken on these identities from those with only passing affiliation with these identities. That is, the term is intended to distinguish between those who consciously choose to forego sex and those who are celibate because they are between intimate relationships. Likewise, “negative identity” focuses on those who have chosen to forego parenthood from those who may desire children, but who have not yet acted upon these desires or been successful in their attempts at parenthood. Continue reading "Shades of Discrimination Brought to Light"

 
 

Reviving the Dead Hand After Repeal of the Rule Against Perpetuities

Reid Kress Weisbord, Trust Term Extension, 67 Fla. L. Rev. 73 (2015).

Over the past few decades, most states have repealed the Rule Against Perpetuities or significantly extended the time period during which trusts may continue to exist. As a result of these changes, estate planners frequently attempt to extend the terms of trusts that were originally created to comply with the Rule Against Perpetuities. They primarily do this through modification doctrines, such as equitable deviation.

In this article, Dean Reid Kress Weisbord argues against the use of modification doctrines to extend the duration of trusts beyond the Rule Against Perpetuities period that was in effect when the trust was created. In addition, he recommends that the drafters of the Uniform Trust Code (the “UTC”) modify the UTC to clarify that modification doctrines do not permit the addition of beneficiaries to the trust who were not identified in the original trust instrument. Continue reading "Reviving the Dead Hand After Repeal of the Rule Against Perpetuities"

 
 

Boilerplate and the Boundary Between Contract and Tort

Margaret Jane Radin’s latest work, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law and a companion article and book chapter interrogate how now-ubiquitous fine print buried deep in consumer contracts affects the rights of ordinary Americans. This boilerplate can take many forms. It includes “extravagant exculpatory clauses,” choice-of-law provisions, and waivers of consequential damages. Frequently, and perhaps most importantly, it also includes agreements to arbitrate—and, in so doing, entails consent to eliminate the background protections we take for granted, including juries, reasonable filing fees, rights of appeal, rules of evidence, the ability to join with similarly aggrieved individuals, and stare decisis. Radin finds this fine print deeply troubling. She argues that, considered in tandem, these contractual terms make certain remedies for transgressions practically unavailable and thereby undermine individual autonomy, degrade democratic principles, and, ultimately, subvert the rule of law.

Because Radin is a contracts scholar—and her recent work is, on the face of it, about contract law—it would be easy for those of us who traffic in tort to miss the scholarship’s significance. That would be a mistake. Continue reading "Boilerplate and the Boundary Between Contract and Tort"

 
 

Practice Makes Perfect: Weaving Together the Fabric of the Virtuous Biller

Randy D. Gordon & Nancy B. Rapoport, Virtuous Billing, 16 Nev. L.J. 698 (2015).

During the holiday season, I think of Santa evaluating who is naughty and nice. Like Santa, senior lawyers in law firms make end-of-the-year determinations when deciding on bonuses, salary increases, promotions, and distributions. Unlike Santa who judges the character of children on his list, law firm partners may focus more on objective measures of worth. In law firms this often amounts to billable hours collected and business generated. In firms, new lawyers quickly learn what is valued within the organization and many shape their conduct to maximize their income and promotion possibilities. As explained by Eliyah Goldratt, the Israeli physicist and management consultant, “Tell me how you measure me and I will tell you how I will behave.”1

In their recent article, Virtuous Billing, Randy D. Gordon and Nancy B. Rapoport, recognize the role of incentives and performance management in law firms. The authors examine firm conduct and billing practices through the lens of virtue ethics. I especially like the article and commend it to you because it provides positive recommendations on steps that firm leaders and other interested parties can take to improve the quality of work for clients and the quality of life of lawyers. Continue reading "Practice Makes Perfect: Weaving Together the Fabric of the Virtuous Biller"