Monthly Archives: December 2009

Winter Break

Jotwell is taking a short winter break. Posting will resume early in January.

I am tremendously grateful to our authors and readers who together have made Jotwell’s launch such a great success. Thank you for reading, and for your support.

Democratizing Online Life via Cultural Infrastructure

Anthony Varona, Toward a Broadband Public Interest Standard, 61 Admin. L. Rev. 1 (2009), available at SSRN.

I was recently reading Bob Garfield’s book The Chaos Scenario, which describes the accelerating deterioration of old business models for mainstream media.  Garfield’s weekly podcast/radio show, On the Media, has meticulously documented the problems journalists, musicians, and news programs are encountering as content converges onto broadband-based intermediaries.  In the face of all these dramatic changes, what are legal scholars adding to the debate?

In cyber- and media law scholarship, Anthony Varona deserves special notice for integrating the two fields in his recent article “Toward a Broadband Public Interest Standard.”  Varona tries to revive an old and oft-neglected standard for broadcasting—the public interest—for the digital age.  In areas  where scholarship too often degenerates into arid formalism, libertarian rejectionism, and toothless jeremiads, Varona is a breath of fresh air.  He has articulated both a comprehensive justification for better broadband regulation and a method of achieving it.  The article is both a rigorous intervention into extant debates on network neutrality and importantly demonstrates (and helps remedy) the partiality and ideological character of many of those debates. Continue reading "Democratizing Online Life via Cultural Infrastructure"

Parallel Play: The Disconnect Between Criminal Procedure and Criminology Revisited

Eric J. Miller, Putting the Practice into Theory, 7 Ohio St. J. Crim. L. 31 (2009).

Susan Bandes

Susan Bandes

Criminal procedure and criminology have developed along oddly parallel tracks. Criminal procedure is rights-based and court-centric.  It cares about policing and crime control not as subjects in their own right, but as objects of constitutional limitation.  The field implicates the regulation of police behavior, but has traditionally paid little attention to police attitudes or police organizational culture.  It implicates crime control, but has paid little attention to the social, political and cultural context in which the criminal process unfolds.  This focus seems increasingly myopic.  Most of the promising innovations in police reform and crime control have little to do with judicial enforcement of constitutional rights. Continue reading "Parallel Play: The Disconnect Between Criminal Procedure and Criminology Revisited"

Taking the Literary Turn

Elliott Visconsi, Lines of Equity: Literature and the Origins of Law in Later Stuart England (Cornell University Press: 2008).

This is a book about the fictionalization of the origins of law in later Stuart England.  My focus is on crucial literary texts such as John Milton’s Paradise Lost and John Dryden’s Indian Emperour, works devoted to demanding of the audience a set of structured interpretive deliberations about the first principles of government, the charismatic utterance of law, and the transition from savagery to civility.  At the heart of such an intellectual program is the norm and practice of equity….  Equity is a moral principle (equal justice, fairness), an interpretive method (summoning the original intention or spirit of a law in order to judge fully particular acts or events), and a gesture of sovereign mercy (relaxing the rigorous letter of the law in order to ensure justice).  For the writers I study, equity is habit of thought that may be cultivated through fictional methods.  …  I take as given the claim … that in the later Stuart period, serious literary texts are a crucial language for the public constitution of the legal norms and conceptions of sovereignty, subjecthood, and political authority.  Moreover, I share the view that literary texts are often the most effective and lasting language for explaining and legitimating legal regimes.  (1-2)

This is a book I like a lot in part because of who – professionally – Elliott Visconsi is.  He wrote the book while an assistant professor of English.  Lines of Equity is careful tenure track work.  Visconsi announces right at the beginning (“I take as given”) that he is working within a field already mapped (naming and footnoting his predecessors in the passage I delete.)  And he was also an assistant professor of English at Yale – making his way, therefore, within one of the most established, celebrated, central English departments in American academia.  There is nothing radical, it appears – or not much – in Visconsi’s project.  Constitutional thinking is, apparently, a pretty much accepted starting point for exploring the organization and power of literary works. Professor Visconsi cheerfully announces on his Yale webpage that he will “spend a year studying US and comparative constitutional law at Yale Law School courtesy of a Mellon Foundation New Directions Fellowship.  The major focus of my current research touches on the cultural and legal history of the separation of church and state….” Continue reading "Taking the Literary Turn"

Tax Policies, Public Opinions

Andrea Louise Campbell, What Americans Think of Taxes, in The New Fiscal Sociology:  Taxation in Comparative and Historical Perspective (Isaac William Martin ET AL. eds., 2009).

Before reading Andrea Campbell’s recent book chapter, I relied mainly on two reference points for a mental framework of public opinion relating to taxes:  Donald Duck and Pat Soldano.  The famous Disney cartoon shorts from the 1940s aimed to convince a patriotic public that mass income taxes would help “Beat the Axis,” thus smoothing the transition from a class-based income tax.   Lobbyist and anti-estate tax crusader Pat Soldano, as Michael Graetz and Ian Shapiro tell it in their book Death by a Thousand Cuts, helped persuade America that repealing the estate tax would save hardworking family farms and businesses from the clutches of the federal government, making passage of the 2001 estate tax bill possible.   In my mental model, Donald Duck stood for effective pro-tax government propaganda.  Pat Soldano represented successful grassroots cultivation of anti-tax popular sentiment with the power to hold policymakers hostage, leaving them mainly with the escape hatch of debt financing.  But how did we get from Donald to Pat?

Campbell, a political scientist at MIT, gives a more comprehensive, empirical picture of the evolution of American public opinion on taxation.  She uses two data sources:  Gallup and other poll data, starting in 1939, and political communication such as presidential campaign speeches.  Her work suggests that “the dawn of mass taxation came with surprising calm,” with data such as 1943 Gallup poll results showing that 78 percent of respondents thought their annual federal income tax due was “fair.”  Campbell also traces increased public resistance to taxes starting in the late 1960s.  As she acknowledges, many developments contributed to this shift to anti-tax sentiment, including decreasing real after-tax income and growing public disapproval of government spending, for example on Vietnam and on social programs associated with racial divides.  She offers empirics to illustrate the trend, such as coded political speech data demonstrating a generally upward trend in the frequency with which taxes were mentioned starting in 1968.  The data extends to 2000 and later, and she includes an analysis of the increased correlation between a belief that one’s taxes are too high and a decision to vote for a Republican candidate for President in the 1990s, when other factors are held constant. Continue reading "Tax Policies, Public Opinions"

Exposing Criminal Procedure’s Hidden History

David Alan Sklansky, One Train May Hide Another: Katz, Stonewall, and the Secret Subtext of Criminal Procedure, 41 U.C. Davis L. Rev. 875 (2008).
Jack Chin

Jack Chin

David Alan Sklansky offers fascinating new insights into an old chestnut, Katz v. United States, 389 U.S. 347 (1967).  Katz is a worthy subject, because its rejection of the “trespass” test for searches in favor of the “reasonable expectation of privacy” framework apparently heralded a new scope for the Fourth Amendment.   The specific holding of Katz, that wiretapping constituted a search, overruled prior law and survives today.  Yet, as the cases after Katz developed, from open fields to wired informants, the results of the new test were the same as the old test.

Together, the great criminal procedure cases of the Warren Court read like a parade of vice straight out of Guys and Dolls: The possession of dirty paperbacks at issue in Mapp v. Ohio, 367 U.S. 643 (1961), the incipient stick-up artists of Terry v. Ohio, 392 U.S. 1 (1968), the Chinese opium dealers in Wong Sun v. United States, 371 U.S. 471 (1963), the bookmaker in Spinelli v. United States, 393 U.S. 410 (1969), and the L.A. bookie in Katz itself.  Sklansky proposes that with Katz, at least, this image is wrong; Katz was not only about bets and telephone booths.  The secret subtext of Katz was protection of gay men from police surveillance in public restroom stalls.  Sklansky advances a powerful circumstantial case that both pre-Katz jurisprudence involving gay men and the cultural context of “morals” policing of males might well have influenced the Court’s decision. Continue reading "Exposing Criminal Procedure’s Hidden History"