Jotwell - The Journal of Things We Like (Lots)

The Pretense of Necessity in Constitutional Theory

May 16th, 2012 | Frederick Schauer | Constitutional Law

Andrew B. Coan, The Irrelevance of Writtenness in Constitutional Interpretation, 158 U. Pa. L. Rev. 1025 (2010).

Good legal advocacy often involves characterizing hard cases as if they were easy, and describing indeterminate precedents or statutory provisions so as to imply that they clearly point in the direction of the advocate’s preferred outcome. And because the great majority of normative or prescriptive legal scholarship is committed by individuals trained and proficient as legal advocates, much of the scholarly output of the legal academy shares the same characteristic. Outcomes that are chosen are claimed to be compelled, and prescriptions that are desired are treated as inevitable. And because advocates whose favored outcomes rest on debated moral or political premises are reluctant to acknowledge the contested nature of the assumptions that drive their outcomes, it is common to see outcomes that are thought to be normatively desirable couched in the language of inevitability, and outcomes thought to be normatively undesirable described as impossible or simply logically flawed.

These pathologies are nowhere more apparent than in the domain of normative constitutional theory, where normative arguments and premises are frequently concealed in the language of linguistic, legal, or institutional necessity. A useful corrective has been provided by Andrew Coan, who attempts, with considerable success, to show that masking morally and politically normative theories of constitutional interpretation in the supposed nature of language itself, or in the inescapable implications of having a written constitution, is largely flawed. Continue reading "The Pretense of Necessity in Constitutional Theory"

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What’s in a Name? The Value of That Which We Call Attribution

May 14th, 2012 | Jason Schultz | Intellectual Property

Christopher Jon Sprigman, Christopher Buccafusco, & Zachary Burns, Valuing Attribution and Publication in Intellectual Property (Va L. & Econ. Rev Research Paper No. 2012-02), available at SSRN.

Jason Schultz

We all like to get credit where credit is due, but how much is it really worth to us? In another installment of their provocative series of IP experiments, Sprigman and Buccafusco team up with Burns to test that question specifically in the context of online photography.

The setup is similar to their past papers – subjects are given the opportunity to sell their chance at winning a prize in a creativity contest. The amount they are willing to sell for stands as a proxy for how much they think their IP might be worth. In the past, these experiments demonstrated a tendency for those who owned IP to fall prey to an “endowment effect” and those who created the IP to a “creativity effect,” both of which artificially inflated subjects’ perceptions of the IP’s value, thus leading to market inefficiencies and higher transaction costs. Sprigman and Buccafusco then argued that this differential supports the use of liability rules over property rules for IP, as liability rules tend to mitigate the costs incurred from such irrational holdouts. Continue reading "What’s in a Name? The Value of That Which We Call Attribution"

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Police Discretion? It’s the Department, Stupid.

May 11th, 2012 | Elizabeth Joh | Criminal Law

Nirej Sekhon, Redistributive Policing, 101 J. Crim. L. & Criminol. 1171 (2012).

Elizabeth Joh

For observers of the police, an arrest is a black hole of decision-making. I don’t mean the official reason for an arrest, since a legal basis can almost always be found in the vast criminal codes of most American jurisdictions. Rather, the mystery lies in the “real” reason for the arrest, this particular exercise of police discretion. Why this person, and not that one? Why an arrest, rather than a citation, a warning, or ignoring the problem? Why arrest on this street corner, and not another one? Even if you could interview the arresting officer, it’s unlikely you’d get the full story. Good policing usually involves a mix of training, street smarts, and experienced-based hunches. Unsurprisingly, defendants often challenge the bases of these choices. Those police discretion cases that have been decided by the Supreme Court are striking in two respects. First, the Court has decided to curb police discretion only in the broadest sense; if any substantive law permits arrest, so too does the Fourth Amendment. Second, as Nirej Sekhon points out in his article Redistributive Policing, the Court has focused nearly exclusively on the individual officer. Yet it is police departments, which mandate policies and manage their rank and file, that deserve equal attention and, when warranted, blame.

The role of police departments in shaping arrest decisions is considerable. While top brass can’t micromanage a cop’s split second judgment on the beat, police administrators can set priorities and dictate changes that have enormous practical consequences. A familiar example is the implementation of quality of life policing in New York City in the early 1990s. With William Bratton newly installed as the head of the New York City Transit Police, Transit cops tackled the rampant crime and disorder of the city’s subways with a radically different approach. Transit cops–and later those in the NYPD–were directed to enforce misdemeanor laws that they had previously dismissed as minor, such as public urination, fare evasion, and public drinking. To hear the NYPD tell it, this was the beginning of the city’s Cinderella story that led to a dramatic crime drop and transformed grimy dens of vice like Times Square into tourist destinations worthy of Disneyland. Continue reading "Police Discretion? It’s the Department, Stupid."

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No Conflict About this Non-Essentialist Reading

May 9th, 2012 | Kim Brooks | Equality

Karen Knop, Ralf Michaels and Annelise Riles, From Multiculturalism to Technique: Feminism, Culture and the Conflict of Laws Style, 64 Stan. L. Rev. 589 (2012).

Kim Brooks

This engaging article is motivated by the complexity of framing (forget resolving) concepts of culture, by concerns that at least some feminists have become bogged down in their efforts to theorize veiling, clitoridectomy, and polygamy, among myriad other issues, and by a commitment to reasoning from law. In addition, deep into the piece, the authors explicitly state that they chose the direction of the piece in part to highlight that feminists tend to prioritize culture and leave unaddressed the role of economics in constructing tensions, identities, and concerns. Even if the article wasn’t so nicely written, even if it didn’t hold hints of something very interesting and hopeful, I would have been captivated by these motivations.

The authors drive the piece in surprising directions. Part I outlines feminism’s engagement with culture as concept. Part II situates a specific dispute (although in stylized form) that gives rise to a “clash” of cultures. Part III illustrates how the technique of conflict of laws assists in reasoning through the particular dispute. Part IV addresses possible objections and in Part V the authors argue that the approach delineated provides an intellectual style that might be adopted by feminists or cultural theorists.

Four reasons to read the piece… Continue reading "No Conflict About this Non-Essentialist Reading"

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Making the Case for Soft Law

May 7th, 2012 | Bill Bratton | Corporate Law

Chris Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century (Cambridge University Press 2012).

Bill Bratton

Every once in a while I read something and say to myself “this one’s a keeper” in the sense that it goes to the shelf to be drawn on again as an important source of knowledge. This book earned that status early in the read and it earned it again and again as the read went on. Indeed, I may be this book’s ideal reader for the very reason that I’m a domestic business law academic. To be sure, the book follows from and addresses a number of international law literatures and so addresses itself in the first instance to the international legal cohort, both to international law writ large and the group’s business and financial subset. But the learning curve is much steeper for me than for those primary addressees. Here we find the whole cast of international financial characters–bankers, cops, securities and insurance regulators, auditors, politicians, bureaucrats, technocrats, and their international and domestic organizations–all carefully and neatly laid out with their histories, structures, and outputs juxtaposed and categorized. My revelation lay not in the fact that I’d never heard of them (although I must admit that one or two were new to me), but in the fact that my institutional knowledge was full of holes, particularly as regards the book’s comparison to other, treaty-based international organizations.

When I picked up the book I wrote down three general observations, touchstone points to assist in evaluation. They are:

Globalization implies downward regulatory pressure.
Soft law will always disappoint you.
Reputational sanctions are unreliable.

First, globalization and downward regulatory pressure. More particularly, what’s the interface between the book’s account and regulatory competition–race to the top, race to the bottom, law as product, or whatever you want to call it? In fact, there’s not much in the book about downward competitive pressure. It’s more a background factor that pops up on the screen when pertinent. Even so, I think it’s an important part of what the book is about. I think back fifteen years or so to a discourse that posed international regulatory competition as against international regulatory co-ordination. The competition side of the binary was heavily theorized where the co-ordination side was not. The competition side drew on economic theory going back to Tiebout and had negative things to say about co-ordination, which it cast as rent seeking. There wasn’t a whole lot on the coordination side. Since then international lawyers have been slowly filling in the picture. This is where I locate the book. For me it fills in the empty set with an exhaustive description of the international co-ordinative effort. Theory can now start over. Continue reading "Making the Case for Soft Law"

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Adopting a “Child-Centric” Model of Paternity for Nonmarital Children

May 4th, 2012 | Paula Monopoli | Trusts & Estates

Camille M. Davidson, Mother’s Baby, Father’s Maybe!– Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father? 22 Colum. J. Gender & L. 531 (2011), available at SSRN.

Paula Monopoli

One of the most important and interesting conversations among inheritance law scholars has been the role genetic connection should play in establishing parentage and rendering a nonmarital child eligible to inherit from her father. The advent of easy and reliable genetic testing has crystallized the issue and focused scholars on which paradigm we should adopt now that we no longer need “surrogate” rules in intestacy statutes, e.g., acknowledgement by a putative nonmarital father, to help establish whether a child is likely that man’s child. There is a spectrum in terms of potential paradigms, running from a purely genetic model at one end where a DNA test establishing paternity would make a nonmarital child eligible to inherit even if she had no relationship with her father to a purely functional approach where the father’s behavior and intent would be the linchpin of whether the child is eligible to inherit, regardless of her genetic connection. I would characterize the former model as a “child-centric” model where the interests of the nonmarital child trump that of the father and his other marital children since the nonmarital child does not have to rely on the father to take any affirmative action like acknowledgement in order for the child to be eligible to inherit.

In her recent article Mother’s Baby, Father’s Maybe!-Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father?, Camille Davidson argues for the adoption of such a child-centric model of establishing paternity in the area of inheritance law. She highlights some of the historical antecedents of our current patchwork of state laws on defining paternity. Davidson also adopts a comparative lens in evaluating how states should embrace the genetic connection between a nonmarital child and her father as dispositive of not only of paternity but of her eligibility to inherit from him. In so doing, Davidson makes a compelling argument for this approach and adds an important voice to the academic conversation in this area of inheritance law. Continue reading "Adopting a “Child-Centric” Model of Paternity for Nonmarital Children"

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The Jim Crow Foundations of Agricultural Governance

May 2nd, 2012 | Joanna Grisinger | Legal History

Kimberley S. Johnson, Racial Orders, Congress, and the Agricultural Welfare State, 1865-1940, 25 Studies in American Political Development 143 (Oct. 2011).

Joanna Grisinger

Kimberley S. Johnson’s recent article, “Racial Orders, Congress, and the Agricultural Welfare State, 1865-1940,” is part of a valuable turn evident in recent scholarship on governance in the twentieth century. Bringing together politics and race to understand agricultural policies and institutions, Johnson asks, “[w]hen does race matter; and how does race matter when thinking about the shaping of the American state?” (P. 144) The answer? Race has shaped agricultural policy in some surprising and not-so-surprising ways.

In her study of the “agricultural welfare state,” Johnson examines the shifting ways in which the federal government provided farmers with services and subsidies in the decades following the Civil War. Responding to scholarship centered on interest group relations and partisan politics, Johnson stresses the importance of considering the political machinations involved in agricultural policy in the specific historical context in which these programs were designed and implemented. She describes in detail the numerous agricultural programs that came out of Congress in the years before the New Deal, and examines how their design and implementation occurred against a backdrop of legalized white supremacy in the rural South. The segregated nature of Southern agriculture combined with the power of Southern Democrats in Congress meant that national agricultural programs reflected the assumptions and preferences of powerful southern interests in maintaining racial hierarchies and allowed local authorities significant discretion in the distribution of assistance. Although the federal government consistently acknowledged its role in protecting farmers from economic dislocation, racial calculations, she argues, destroyed early on any possibility that the federal government would establish universal agricultural benefits as a matter of right. Continue reading "The Jim Crow Foundations of Agricultural Governance"

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Striking Out Specious Claims in Mass Tort Global Settlements

April 30th, 2012 | Sergio J. Campos | Courts Law

S. Todd Brown, Specious Claims and Global Settlements, 42 U. Memphis L. Rev. (forthcoming 2012), available at SSRN.

Sergio J. Campos

The late Richard Nagareda once noted that global settlements in mass tort litigation present a “Field of Dreams” problem – “if you build it, they will come.” In the movie, people came to the Iowa baseball field in the corn fields because it was “money they had, but peace they lacked.” The opposite is true in mass tort litigation. In most cases, multinational corporations and plaintiffs’ firms with large inventories of claims typically achieve peace through a global settlement resolving all of the victims’ claims. It is money that the individual victims lack, and it is why the victims consistently come in droves, many with claims that are specious at best.

In his excellent article Specious Claims and Global Settlements, Todd Brown examines three comprehensive settlements in mass tort litigation to identify the cause of the “Field of Dreams” problem. He contends at the outset that the problem is caused by more than adverse selection, in which asymmetries in information allow plaintiffs with dubious claims to try to collect. (P. 20.) Instead, Brown provocatively argues that the problem arises from how the parties define what a compensable claim is in negotiating the settlement, using the settlement to “supplant[] tort law with a negotiated grid for compensation.” (P. 23.) Brown shows that the parties negotiating the settlement define grids because they only care about the size of the settlement, not the distribution of the proceeds. But by failing to establish more accurate distribution procedures, global settlements allow a thousand specious claims to bloom. Continue reading "Striking Out Specious Claims in Mass Tort Global Settlements"

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Toward Real Criminal Justice

April 27th, 2012 | Christopher Slobogin | Criminal Law

William Stuntz, The Collapse of American Criminal Justice (Harvard University Press, 2011).

Christopher Slobogin

William Stuntz, who died last year, was the preeminent criminal procedure scholar of his generation. His early work on criminal procedure doctrine was breathtakingly insightful, providing deep explanations of the Court’s decisions and new ways of thinking about the law of search and seizure, interrogation, plea bargaining and sentencing. His recent book, The Collapse of American Criminal Justice, weaves together his earlier doctrinal perspectives with brilliant analysis of criminological data, legal and cultural history, and the sociology of criminal justice, all in an effort to explain why our criminal justice system suffers from unnecessary mass incarceration, horrendously long sentences, racially imbalanced charging and sentencing, and a host of other flaws.

Stuntz attributes the current state of affairs to a number of factors, not all of which are obvious. He is particularly bothered by the loss of local influence over crime policies. He argues that until the mid-twentieth century police, prosecutors, juries and judges were very responsive to the community and that, outside the South, this attention to local morés resulted in a relatively lenient, non-discriminatory punishment regime. Today, in contrast, police and prosecutors are more distant from their polity, most cases do not go to trial (making them invisible to the public), and when cases do go to trial juries and judges have much less flexibility in imposing punishment, all of which contributes to more punitive outcomes. Continue reading "Toward Real Criminal Justice"

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Womb as Wedge: What We Can Learn from Revisiting the Political History of the Abortion Controversy in the US

April 25th, 2012 | Sonia Lawrence | Equality

Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011), available at SSRN.

Sonia Lawrence

Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?

This is delightfully, smugly, self-satisfying. It is neither analytic nor strategic. And when, inevitably it seems, our relatively open access to abortion (as Carol Sanger has called it, the “luxury of legality”) starts to be challenged, it might leave us rather less than prepared. Greenhouse and Siegel’s article illustrates how a slow burn, not the blast of Roe v. Wade, led to the bitter struggle over reproductive rights in the U.S. today. Continue reading "Womb as Wedge: What We Can Learn from Revisiting the Political History of the Abortion Controversy in the US"

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Labor Speech is Corporate Speech

April 23rd, 2012 | Matt Bodie | Worklaw

Charlotte Garden, Citizens, United and Citizens United: The Future of Labor Speech Rights, 53 William & Mary L. Rev. 1 (2011).
Benjamin I. Sachs, Unions, Corporations, and Political Opt-Out Rights after Citizens United, 112 Colum. L. Rev. (forthcoming 2012), available at SSRN.

Matt Bodie

Citizens United remains in the public consciousness long past the normal half-life for a Supreme Court decision. The notion that “corporations are people” has become a punch line in a variety of contexts—proof of the absurdity of the Court’s opinion. While the decision itself simply freed corporations from the constraint of political action committees in their election-related spending, it has engendered continued outrage and cynicism at both the political process and corporations themselves. The fact that the opinion extended these rights to unions, as well, has received much less attention. Perhaps more importantly, the decision has ramifications for the future of corporate and union political activity that are yet to be fully developed. Two labor law scholars explore these ramifications in articles seeking to extend the principles of Citizens United to familiar labor law doctrines, with creative and thought-provoking results.

For Charlotte Garden, the Citizens United decision offers the opportunity to extend the argument she began in an early article¹: namely, that union speech deserves greater constitutional protection. In her Citizens, United piece, Garden uses the opinion as a springboard for reconsidering two significant restrictions on union speech: the prohibitions on union secondary activity and the objection rights of employees covered by union security clauses. She argues that the distinction between “public-issue” picketing and boycotts (by groups such as the Westboro Baptist Church) and “economic” picketing and boycotts (by unions) is vulnerable in light of Citizen United, which held that the corporation’s motive is irrelevant to First Amendment protection. Because both corporations and unions cannot be stopped from engaging in political speech, Garden suggests that union campaigns may be protected if they take on more public-interested oriented themes. And she also points out that since Citizens United overrode the concerns of objecting shareholders to corporate political speech, that opinion undercuts the protections for employees who object to paying union dues that fund political speech. Although acknowledging that the analogy is “not an exact one,” Garden argues that protecting union objectors but not shareholder objectors is a tough distinction to maintain, given that in both cases speech rights are pitted against administrative burdens, but with differing results. Continue reading "Labor Speech is Corporate Speech"

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