Monthly Archives: October 2010

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Regulating Constitutional Law

There is considerable overlap between administrative law and constitutional law. The appointment of particular agency leaders without Senate confirmation, ex parte communication between an agency and interested persons in a rulemaking process, and the type and timing of a hearing used in terminating a government benefit, for example, can raise constitutional issues. These topics generally receive some attention, at least in the academic literature and at times in the courts.

Sophia Lee’s exceptional article, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, turns our attention from these more conventional explorations of the overlap to “regulatory agencies’ interpretation and implementation of constitutional law,” what Lee terms “administrative constitutionalism.” The article compares the contrasting responses of the Federal Communications Commission and the Federal Power Commission to pressure to use the state action doctrine to enact and enforce employment policies aimed at furthering equal employment by race, sex, and ethnicity, mainly in the 1960s and 1970s. The FCC did implement equal employment rules, largely independent of direct presidential or congressional influence, while the FPC did not. Continue reading "Regulating Constitutional Law"

 
 

The Small-c constitution, Circa 1925

Herbert W. Horwill, The Usages of the American Constitution (1925).

A great deal of recent work distinguishes the small-c constitution from the Constitution.  The latter is the written document, whereas the former is an amorphous and ever-changing body of constitutional norms, customs, and traditions – “constitutional conventions,” to use the umbrella term that Commonwealth lawyers have developed to talk about unwritten constitutions.  The recent work on small-c constitutionalism, however, has almost invariably neglected a classic and illuminating book on constitutional conventions in the United States: Horwill’s Usages of the American Constitution.  A “neglected classic” sounds like an oxymoron, but Horwill’s book is proof that such a thing can exist.

Horwill was an English writer who lived and traveled in America and reported upon its natives and their curious customs for an audience in the Old World; his book thus falls into a genre defined by Tocqueville and Bryce.  Because the past is another country, many of the constitutional usages that Horwill discussed in 1925 seem exotic today.  In the 19th century, there was apparently a constitutional convention that the President should not travel outside the territory of the United States during his term of office.  The convention was sufficiently powerful, Horwill relates, that presidents would meet their Mexican counterparts half-way across a bridge over the Rio Grande.  Woodrow Wilson shattered the convention with his extended stay in Paris after the First World War, and it has now vanished from view altogether. Continue reading "The Small-c constitution, Circa 1925"

 
 

New Jotwell Section: Classics

Jotwell is an online journal devoted to reviews of the great recent writing related to the law that top scholars in the field believe deserves a wide readership.

The Classics section, however, is a little different: it provides a home for the occasional review of classic works of law, especially those unjustly neglected.  (To qualify as a ‘classic’ for this purpose the work must have been published at least 50 years before the review.)  Unlike Jotwell’s other sections, the Classics Section doesn’t have a board of editors, nor will we attempt a regular publication schedule.   We’ll publish something appropriate only if and when someone is moved to write it.

 
 

Mirror, Mirror on the Wall, Is China’s Trust the Fairest of All?

Frances Foster, American Trust Law in a Chinese Mirror, 94 Minn. L. Rev. 602 (2010).

The People’s Republic of China officially adopted the Western notion of a trust on April 28, 2001, and scholars are now pondering the likely long-term impact on individuals, institutions, and cultural norms in that ancestor-venerating, socialist, civil-law system.  Most of the scholarship is coming from inside China, of course, and the common theme is the need to “nativize” the transplanted trust in order for it to thrive, or at least do no harm, in its new environment.  One Chinese scholar has described the process as “absorbing what is useful and discarding what is not.”

In American Trust Law in a Chinese Mirror, Professor Frances Foster combines impressive trust-law credentials with fluency in Chinese language to unveil and explain a robust and intelligent critique of the so-called American trust.  What makes this article particularly fascinating is Professor Foster’s focus on the implications of this critique to the evolution of trust law in the United States.  As she explains, “legal transplants can provide a mirror for donor countries to see flaws in their own systems and new directions for reform.” Continue reading "Mirror, Mirror on the Wall, Is China’s Trust the Fairest of All?"

 
 

Governing Through Sex Crimes?

Corey Rayburn Yung, The Emerging Criminal War Against Sex Offenders (2009, forthcoming Harvard Civil Rights- Civil Liberties Law Review), available at SSRN.

Twenty years or so ago, when I was a baby law professor, I asked a senior critical legal studies scholar for promising areas to write about, and he warned me against taking up criminal law. The problem with criminal law and procedure for a critical thinker, he told me, is that it arrives pre-deconstructed, so to speak. No room for the kind of clever unveiling of buried fundamental contradictions that, one hoped, would be rewarded with tenure. Whether one adopted the political theory language of Carl Schmitt’s “state of exception” or the sociological language of Albert Cohen’s theory of “moral indignation,” American criminal law and procedure, like American Indian law, was driven by extra-doctrinal pressures that were painfully obvious to all.

Twenty years later, this is still true. And a lot of criminal law and procedure scholarship is incredibly boring for this reason: It pretends that doctrinal craft and/or moral theory actually matter. The work that isn’t boring, however, situates criminal law and procedure in its cultural and political context; and the article I like a lot this month is an excellent example, providing a useful guide to an ongoing crisis in American law and culture. Continue reading "Governing Through Sex Crimes?"

 
 

A Neglected Strand of Retributivism

Jeremy Waldron, Lex Talionis, 34 Ariz. L. Rev. 25 (1992).

Although Jeremy Waldron’s article on the lex talionis is not as recent as most of the other writings covered by JOTWELL, I came upon it only a couple of years ago.  I feel that it should be discussed here, because it has not received as much attention as it deserves within the philosophy of criminal law.

Retributivism as a philosophy of punishment has emerged in a multitude of forms, but virtually every retributivist maintains that punishments should fit the just deserts of offenders. That abstract idea has been cashed out with somewhat more concrete principles, each of which is itself in need of cashing out.  Many retributivists invoke the notion of commensurateness, as they contend that the severity of any punishment should match the seriousness of the crime(s) for which the punishment is imposed.  Commensurateness, a cardinal property, consists in quantitative equivalence.  Many retributivists additionally or alternatively rely on the notion of proportionality, as they contend that any differences in the severity of punishments should be correlated with differences in the gravity of the crimes for which the punishments are imposed.  Proportionality, an ordinal property, consists in an alignment between two sets of quantitative gradations. Continue reading "A Neglected Strand of Retributivism"

 
 

Conceptualizing Comparative Labour Law

Roger Blanpain, Memoirs: What Can I Do For You? (Vanden Broele 2009).

Back in the day, comparative law as taught in most U.S. law schools meant a comparison at quite the abstract level of the civil law and common law systems. While still interesting and valuable, that rather limited approach has been bolstered by approaches that look to specific areas of law within those two more general legal systems. Within the current thrust of comparative scholarship, there are two schools. One is to start with an area or subject of law and then find and compare the laws of the different countries on that particular subject. The second approach is to start with a country and then find the particular subject of interest so that it can be better understood within the specific context of that country.

A problem with the first approach is that it is formalist. Looking at the laws so abstractly leaves them decontextualized. The “law in action” in any particular country may be surprisingly different from what the words suggest or what those words mean in action in different jurisdictions. The second approach emphasizes the significance of context: the culture, politics and economy of the countries examined. With that base, then a specific law or area of the law can be much more completely understood. An example will show the difference between the two approaches. Utilizing the first approach in trying to learn about the Mexican Constitution, you would read it and, based on the language, would predict that the governmental structure in Mexico is much like that in the U.S. because the Mexican Constitution was modeled on our Constitution. Both are organized horizontally at the national level with a separation of powers structure and vertically with a federal system. The second approach would look at the Mexican Constitution in action and conclude that the governmental structures of the two countries have been quite different, notwithstanding the similarity in the structure supposedly established in the two constitutions. At least until the turn into the 21st Century, governmental power in Mexico was essentially concentrated in the hands of one person, the President, who was in effect a term limited absolute monarch. Continue reading "Conceptualizing Comparative Labour Law"

 
 

Imperfect Principals and Lobbyist Agency Costs

Matthew Stephenson and Howell Jackson, Essay, Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. Legis. 1 (2010).

One of the secrets to scholarly success is picking interesting topics.  It also helps if your analysis makes an interesting topic even more interesting.  That’s exactly what Matthew Stephenson and Howell Jackson have done in their essay Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. Legis. 1 (2010).  In this well-written and engaging essay, Stephenson and Jackson describe how principal-agent problems manifest themselves in the lobbying context and hypothesize on how these manifestations might affect public policy outcomes.

Wherever there are principals and agents, there are principal-agent problems, but the lobbying context is not one that readily comes to mind as infected by a serious problem.  Lamenting that principal-agent problems in the lobbying context have not received the attention they deserve, Stephenson and Jackson demonstrate that lobbyists are far from perfect agents and that the principal-agent slack in the relationship has serious consequences for lobbying’s public policy outcomes. Continue reading "Imperfect Principals and Lobbyist Agency Costs"

 
 

Good Faith Scholarship

Joseph Michael Reagle Jr., Good Faith Collaboration: The Culture of Wikipedia (MIT Press, 2010).

There is a distinctive NYU School of Internet studies: philosophically careful, intellectually critical, rich in detail, and humanely empathetic. Its unofficial dean is Helen “values in design” Nissenbaum; her colleagues and students have included Siva Vaidhyanathan, Michael Zimmer, Gabriella Coleman, Alexander Galloway, and Gaia Bernstein. Almost none of them are lawyers (Seton Hall’s Bernstein being the notable exception), but their work speaks to those of us who are.

One of the most recent additions to the NYU School is Joseph Reagle, who received his Ph.D. in Media, Culture, and Communications in 2008 and is now a fellow at Harvard’s Berkman Center. His new book, Good Faith Collaboration: The Culture of Wikipedia (MIT Press, 2010) is an ethnography of Wikipedia, a modest, beautiful book that analyzes the site’s “good faith collaborative culture.” Reagle offers an extended reading of how this culture emerges from the interplay of ideology, technology, and social practice. Continue reading "Good Faith Scholarship"

 
 

Estate Taxation of Reversions

F. Philip Manns, Jr., New Reasons to Remember the Estate Taxation of Reversions, 44 Real Prop. Tr. & Est. L.J. 323 (2009), available at BePress.

Professor F. Philip Manns, Jr.’s article, “New Reasons to Remember the Estate Tax of Reversions,” might have been cheekily (but not inappropriately) titled, “Everything You Really Need to Know about the Estate Tax of Reversions.” A reversion, per Professor Manns, “exists whenever a transferor transfers less than all she owns.” (footnote 12 at P. 327.) In its first main part, the article focuses on how a reversion can arise not only from the transferor’s intent but also from inartful drafting and even by statute or common law decision; in its second main part, the article addresses the gift and estate tax treatment of reversions (however they are created).

Among the many strengths of the article, perhaps its most significant contribution to the existing literature is Professor Manns’ detailed explanation of how to calculate, for purposes of Internal Revenue Code sections 2033 and 2037, the value of a transferor’s reversion. Professor Manns indicates that “no case law, administrative pronouncement, or commentary instructs people how to make such calculations.” (P. 354.) Many sources address the calculations by referring the reader to Revenue Ruling 76-178, 1976-1 CB 273. But that Revenue Ruling merely gives answers without any explanation. In his article, Professor Manns explains the required “probability theory and life contingency actuarial mathematics” (P. 354.) and then impressively provides sample calculations showing all of his work. Continue reading "Estate Taxation of Reversions"

 
 

Shining the Light on Negligence

George Sher, Who Knew?  Responsibility Without Awareness (Oxford University Press, 2009).

I’m no fan of punishing the negligent.  Here are a few reasons.  First, when a negligent actor fails to notice, remember, and the like, she lacks the requisite control over her failure.  Her consciousness is not directed to the risk, and thus, she can control her failures only indirectly by, say, taking a prior action to remember.  Second, the reasonable person strikes me as a worrisome construct.  How do you craft the idealized vantage point?  Third, because we are always forgetting, failing to notice, or underestimating risks all the time, these behaviors exhibit no moral defect.  These failures have myriad causes, including the lack of background beliefs, momentary or permanent incapacities, or lack of motivation.  And, we need arguments for why those prior failures are blameworthy.  Notably, although some criminal law theorists defend punishing the negligent, almost no one wants to punish every actor who falls below some objective standard.  Rather, proponents often seek to narrow negligence’s reach to only the “culpably indifferent” and not the stupid and the clumsy.  Yet, we are not given a fair basis for drawing this distinction.

Enter “Who Knew?”  George Sher’s book defends that we can be responsible without being aware.  Although I do not believe that this book ultimately undermines my concerns about punishing the negligent, it refines the state of the debate.  It is beautifully argued and carefully constructed.  Criminal law theorists truly ought to read this book.     Continue reading "Shining the Light on Negligence"

 
 

“When Is Using a Firearm Not Really?” — An Eminent Philosopher of Language Helps Us Decide

Philosophers of law and philosophers of language used to hang out together more.  H.L.A. Hart spent Saturday mornings over at J.L. Austin’s in the 1950s and 60s, hashing out questions of meaning and usage with Paul Grice.  Hans Kelsen did not think much of Wittgenstein, but in the 1920s he chummed around with Moritz Schlick, Otto Neurath, and other members of the celebrated Wiener Kreis, the Vienna Circle of philosophers who were making the analysis of language a foreground concern.  But, as the twentieth century wore on, practitioners of the two specialties wandered apart.  For thirty years on, legal philosophers have tended to dwell on somewhat inward debates over legal positivisms and postscripts thereto, while philosophers of language have been on a great hunt for a semantics of natural languages generally, which has led them to investigate things like naming, reference, and the truth conditions of modal and counterfactual statements.  True, the philosophers of law have tried to keep up with the philosophers of language; but, the philosophers of language with the philosophers of law?  Not so much.  There’s no shortage of legal philosophy that purports to say what philosophers of language would say about law, but next to nothing directly from philosophers of language about law.  Are we legal philosophers getting it right?

The silence from the other side of the table made me uneasy.  So I was excited to run across this essay by Scott Soames.  Soames is Director of the School of Philosophy at USC, where he can lunch with Andrei Marmor, the distinguished philosopher of law.  The essay is the concluding chapter of the first volume of Soames’s collected essays, most of which have to do with technical topics in philosophy of language.  The Introduction to the volume is a useful preliminary survey of his views of such things as why linguistic structures aren’t likely to map onto the psychological substructures of linguistic competence, and the respective roles of semantics and pragmatics, as reflected in his “least common denominator” view of semantic content.  At the end of the Introduction, Soames pauses to reminisce: Continue reading "“When Is Using a Firearm Not Really?” — An Eminent Philosopher of Language Helps Us Decide"

 
 

The Road to Virtual Equality?

Miriam A. Cherry, A Taxonomy of Virtual Work, 44 Ga. L. Rev. __ (forthcoming 2010), available at SSRN.

What if there was no “place” in the “law of the workplace?”  In her article A Taxonomy of Virtual Work, forthcoming in the Georgia Law Review, Professor Miriam Cherry asks this provocative question, considering the ways in which the law might change to keep pace with the changing realities of work, including virtual realities.  In so doing, Cherry writes an important, cutting-edge piece that helps to ignite a much needed conversation on how law may not only keep up with changing forms of discrimination but also the changing worlds in which discrimination may occur.

The increasing prevalence of what Cherry terms “virtual work” has profound implications for labor and employment law.  As Cherry describes, millions of people worldwide supplement their incomes, entertain themselves, or do both simultaneously by meeting with fellow employees in virtual worlds such as Second Life, solving complicated problems on websites like Innocentive, or casually “clicking” to make money for simple tasks on Amazon.com’s Mechanical Turk.  Cherry argues that these activities are far more than “games” or “pastimes,” and that these “virtual jobs” allow many to work in cyberspace to pay their rent in reality.  Because she is seeking to classify all of the ways that technology influences worklaw, Cherry discusses whistleblowing, harassment, and disability law.  In more depth, she also treats the issues of minimum wage protections, virtual unionization, and employment discrimination in cyberspace. Continue reading "The Road to Virtual Equality?"