Monthly Archives: December 2010

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Winter Break 2010

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

Happy Holidays! Thank you for reading, and for your support.

 
 

Is There A Judicial Path Out of Mass Incarceration?

Cecelia Klingele, Changing The Sentence Without Hiding The Truth:  Judicial Sentence Modification As A Promising Method Of Early Release, 52 Wm. & Mary L. Rev. 465 (2010), available at SSRN

American state prison systems face a problem equivalent to our once great manufacturing corporations with their unsustainable pension and health care promises to their workers and retirees.  In the case of our prison systems, the promises take the form of long and inflexible prison sentences that commit the states to funding the housing and health care of unprecedented numbers of prisoners for decades to come.  The costs of these promises, combined in many cases with the failure to provide capacity for healthcare delivery to predictably unhealthy populations, is now confronting the states, sometimes with the prodding of the federal courts, with the need to allocate an ever greater share of revenues to their correctional budgets.  In some states the share spent on prisons now exceeds that spent on higher education.  At a time of catastrophic revenue shortfalls because of the economic crisis, these costs are forcing many states for the first time in decades to consider ways to reduce prison populations. 

While this represents a sea change from nearly forty years of political consensus in support of increasing prison capacity and populations, the question of how to do it in a politically viable way now confronts state leaders with a great conundrum.  Unlike the manufacturing corporations that could use the bankruptcy process (or the threat thereof) to wring concessions from workers and retirees and thereby arrive at a sustainable level of liability, states seeking to reduce their incarceration commitments face the politically hazardous task of changing sentencing or parole laws after decades of telling voters that more prison time was necessary for public safety.

Cecilia Klingele’s article is one of the first law review articles I have encountered to directly address this new conundrum rather than treating sentencing policy from a universal and nonhistorical perspective.  Klingele has absorbed the lessons of the politics of penal populism and is seeking to develop legal strategies for dealing with it.  This article offers an incisive and convincing critique of the currently preferred path being taken by the states and offers a provocative and promising alternative.  Continue reading "Is There A Judicial Path Out of Mass Incarceration?"

 
 

Why Protect Falsity?

Frederick Schauer, Facts and the First Amendment, 57 UCLA L. Rev. 897 (2010).

Free speech theory has neglected – to the point where it is almost an embarrassment – the treatment of false statements of fact as such (that is, where they do not injure reputation).  The Supreme Court has declared that no First Amendment value attaches to false statements of fact – and that there is no such thing, under the First Amendment, as a false idea.  One reason for the theoretical neglect of false statements of fact may be that the examples that come to mind blend questions of fact and “ideas” (think of global warming and evolution).  Another reason may lie in the chilling-effect argument – that the First Amendment requires that statements themselves lacking First Amendment value, such as false statements of fact, sometimes be immunized from liability out of fear that imperfections in the system of imposing liability will lead speakers to refrain from making true statements because they are worried that a decision-maker might wrongly conclude that the statements were false.

Frederick Schauer’s Nimmer Lecture does some essential ground-clearing on the basic theoretical questions.  With his usual analytic care and clarity, Schauer distinguishes between basic facts and opinions, and defends the sensible anti-post-modern proposition that not all facts are socially constructed.  The latter is particularly important because there is an understandable tendency to pose questions about regulation of false statements of fact by imagining when the government might want to impose liability, and the usual answers, at least in the United States, do touch on issues where post-modern anxieties might be well-placed (again, think global warming and evolution and even Holocaust denial, though Schauer contends otherwise as to the last). Continue reading "Why Protect Falsity?"

 
 

The Truth Might Set Your Statutory Interpretation Free

H. Miles Foy III, On Judicial Discretion in Statutory Interpretation, 62 Admin. L. Rev. 291 (2010), available at SSRN.

There is something silly about Supreme Court decisions in which five justices explain that the conventional tools of statutory interpretation—e.g., legislative intent, objective textual meaning, and judicial rules for discerning and applying them—plainly indicate that a statute means A but the other four justices deploy the same tools to explain that the statute plainly means B.  After all, if the relevant meaning were all that clear, wouldn’t all nine of the extraordinarily capable legal minds on the Court come to quick agreement?  And isn’t their disagreement strong evidence that the statutory question has no pre-existing, determinate legal answer?   One might expect that under such circumstances, the rules of reasoned legal discourse would require justices to make remarks like, “Wow.  My dissenting colleagues’ arguments are really very good—they almost persuaded me—and I’m no pushover. But, on balance, I still think it is a better idea to choose interpretation A instead of B.”  Instead, the more usual practice is for both sides to insist that the other is just plain wrong.

In his elegant essay, Professor Foy suggests courts dispense with such nonsense and instead tell the truth.  Suppose, for instance, a judge determines that conventional tools of statutory interpretation do not compel a choice between readings A and B.  The judge happens to think that the world would be a better place were she to choose B.  Under the current rules of the game, the judge should write an opinion that tries to justify choosing B based solely on conventionally acceptable tools—which might include, say, old dictionaries.  This sort of exercise can generate judicial explanations that are strained, arbitrary, or untruthful.  According to Professor Foy, the judge should: (a) instead concede that interpretations A and B both seem pretty darn reasonable as a matter of conventional legal analysis, and then (b) truthfully explain whatever reasons of policy, equity, or justice moved the judge to choose one interpretation over the other.  In short, judges should admit that they must exercise discretion when choosing among reasonable interpretations of ambiguous statutes and then exercise that discretion as prudently and transparently as they can. Continue reading "The Truth Might Set Your Statutory Interpretation Free"

 
 

The More We Know, the More We Know We Don’t Know

Carole Silver, What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43 Akron L. Rev. 1009 (2010), available at HeinOnline.

Carole Silver is one of the scholars who actively researches and writes on the legal profession in the context of globalization.1  However, as Silver in this recent article reminds us, there still are many unexplored issues and unidentified data.  In this article, researchers will find an abundant source of research ideas.  Silver first stresses the significance of “sound empirical evidence” (p. 1014) for policy-makers when they formulate the regulatory framework.  She then goes on to identify the actors and activities to be investigated and the relevant data to be collected.  In addition, she also suggests possible organization(s) to house the research.

Although Silver writes from an American perspective, the research framework that she suggests, with relevant modifications/adjustments, can be adopted for other jurisdictions.  Similar data-collection and research conducted in the main economies and financial centers in the world—for example UK, Japan, China, Germany, Australia, Canada, Hong Kong, Singapore, France—will supplement each other and help in completing a reasonably comprehensive picture of the real situation of the legal services in the context of globalization. This will be useful for policy-making and enhance its credibility. Continue reading "The More We Know, the More We Know We Don’t Know"

 
 

Really Sticky Default Rules

Brishen Rogers, Toward Third-Party Liability for Wage Theft, 31 Berkeley J. Emp. & Lab. L. 1 (Winter 2010).

In the law of work, the hierarchy of legal authority – constitutions trump statutes trump common law – is frequently subverted by a common law that doesn’t seem to know its place.

Early efforts to supplant common law with statutory regulation frequently foundered when common law rules morphed into constitutional principles and forced contrary legislation to give way – most famously, when the right to fire “at will” achieved constitutional stature in the service of striking down state laws prohibiting the yellow-dog contract.  And the constitutionalized common law continues to this day to shape the regulation of work, most recently when the “at-will” rule reared its head to vanquish “class of one” equal protection claims for public employees. Continue reading "Really Sticky Default Rules"

 
 

Exploring Legitimacy in Internet Institutions

Jonathan Weinberg, Non-State Actors and Global Informal Governance — The Case of ICANN, in International Handbook on Informal Governance (Thomas Christiansen and Christine Neuhold eds., forthcoming 2011).

The organization of the Internet raises some profound and fundamental questions about the nature of law and social order, questions that legal scholars have tackled head-on only occasionally and incompletely.  If, as Lessig once argued, technical protocols effect a kind of “law” analogous to treaties, statutes, judgments, and administrative regulations, then by what standard should that “law” be regarded as legitimate and authoritative?  Comparable questions have been asked from time to time with regard to informal social norms that seem to operate online, and more frequently with respect to the private but apparently governmental institutions, particularly the Internet Corporation for Assigned Names and Numbers (ICANN), that have evolved over the last decade to govern the wilds of the Net.

Lawrence Lessig, in Code and Other Laws of Cyberspace, and later Michael Froomkin, in Habermas@discourse.net, chose to look at legitimacy in cyberspace from the perspective of normative political theory.  Jonathan Weinberg, in this chapter from the International Handbook on Informal Governance titled “Non-State Actors and Global Informal Governance – The Case of ICANN,”  steers clear of such normative judgments and instead approaches the task explicitly as one of sociological, or descriptive, legitimacy.  Legitimacy is important, as Weinberg, notes, in part because perceptions of an institution’s legitimacy powerfully impact willingness to comply with its commands or defer to its arrangements.  Though he does not argue the case explicitly, legitimacy is central to institutional authority.  Legitimacy and social order – online and off – go hand in hand. Continue reading "Exploring Legitimacy in Internet Institutions"

 
 

The Nature of Law and the Human Condition

Fernanda Pirie, Law Before Government: Ideology and Aspiration, 30 Oxford Journal of Legal Studies 207 (2010).

The question of the nature of law lies at the heart of jurisprudence. At the present day, the major sources of debate on the question revolve around acceptance or otherwise of ‘legal positivism’ and associated doctrines of analytical jurisprudence. Do we reveal the nature of law when we clarify the conceptual presuppositions of certain social practices? Must theories of the nature of law be ‘neutral’, ‘descriptive’ or ‘detached’? Or are social practices essentially ‘interpretive’, so that the nature of law is only revealed when it is expounded as the expression of a moral or political idea? How, indeed, are we to tell whether analytically pleasing distinctions (such as that between law and morality) genuinely clarify the nature of the object under investigation (law), rather than obscuring it? These debates are clearly capable of exerting their own fascination; but one might suspect them of diverting attention from the traditional concern of jurisprudence, which is to elucidate the nature of law as a social institution, and to throw light upon its place within the human condition. Such inquiries stimulate a specific interest in the significance of law as a distinctive type of social ordering. This is a dimension of understanding that is as lost upon modern critics of positivism as it is upon positivists themselves: for example, in his recent book Justice in Robes, Dworkin argues that philosophical significance attaches only to the substance of legal doctrine, there being no philosophically interesting issues relating to law as a social institution (Justice in Robes, Harvard, 2006, 2-3).

Pirie’s article is refreshing because it avoids the recent debates in favour of an investigation into the nature of law as a social and intellectual phenomenon. Law is not simply a set of practices or a body of norms, but an intellectual system (207). Her concern is to explore the idea of law in terms of its form. We might initially suppose that law can be defined in opposition to forms of negotiated order: a supposition that draws a close association between law and government. Is this anthropologically valid? According to Pirie, law is to be identified ‘neither by reference to the negotiation of order, nor by reference to government. It is, rather … identified by its expressive and aspirational qualities and its ideological claims to promote order and justice.’ (id.) The central question is then how law is different from other forms of ideological system (208). Continue reading "The Nature of Law and the Human Condition"

 
 

Charity Begins With The Gift Agreement: Keeping Intent Fluid

Charities have a legal duty to comply with the restrictions donors place on gifts. Most charities act in good faith and honor the conditions the donors place on the donations. Problems usually occur when internal or external events make it necessary for the charity to change the manner in which it is carrying out the donor’s intent. Persons objecting to those changes may go to court to prevent the charity from taking certain actions. The litigation does not benefit the charities or the donors. Professor Gary addresses this problem with a comprehensive and thought-provoking article. She starts with an explanation of charitable trust law and identifies the legal issues that can arise because donor intent is difficult to determine and to enforce.

Professor Gary starts the article discussing recent high profile cases involving disputes over donor restrictions on charitable gifts. The five cases Professor Gary highlights contain facts that are interesting enough to get the reader’s attention. By starting with illustrations of recent cases Professor Gary shows that the issues she examines in her article are timely and in need of resolution. Continue reading "Charity Begins With The Gift Agreement: Keeping Intent Fluid"

 
 

Brand or Anti-Brand?

Sonia K. Katyal, Stealth Marketing and Antibranding:  The Love that Dare Not Speak Its Name, 58 Buff. L. Rev. 795 (2010).

How many law review articles begin with a scene from Wayne’s World?  For Sonia Katyal, such an opening is par for the course.  Since she entered the scene a decade ago, Katyal’s scholarship has celebrated irreverence, and examined the ways in which the law tolerates, enables, and often discourages commentary on dominant culture, icons, and in this case, brands.  This essay – written for a symposium on advertising and the law at SUNY Buffalo Law School – continues the Katyal tradition.

In Stealth Marketing, Katyal takes up the question of whether and how the law should deal with the increasing convergence between speech from trademark holders and speech about trademark holders.  The essay picks up on a phenomenon that Ellen Goodman raised several years ago in her article, Stealth Marketing and Editorial Integrity, 85 Tex. L. Rev. 83 (2006).  Goodman’s piece had explored the various ways in which advertisers pay to slip their messages into communicative products, leaving consumers uncertain as to the objectivity or veracity of the content they consume.  Goodman’s inquiry focused on the extent to which the law can or should require disclosure when a business, advocacy organization, or even an arm of the government pays to have its messages incorporated into a third party’s communicative work. Continue reading "Brand or Anti-Brand?"

 
 

Just How Broad is the Tax Power?

Erik M. Jensen, The Individual Mandate and the Taxing Power, Case Research Paper Series In Legal Studies, Working Paper 2010-33 (September 2010), available at SSRN.

Even though it is Congress’s first enumerated power, appearing in the Constitution ahead of the power to regulate interstate commerce, the tax power doesn’t get much attention in court cases, law journals, or newspaper articles.  It is, however, the Constitution’s hidden giant.  The Constitution doesn’t express many limits on the scope of the tax power, other than the requirement that taxing (and spending) must be “for the General Welfare.”  And the Supreme Court has interpreted Congress’s tax power broadly, finding taxes constitutional even when they have regulatory effects that Congress could not have achieved directly under the Commerce Clause.

Constitutional scholars have been debating whether the individual mandate of the health care act, which inserts into the tax code a penalty that applies to certain people who fail to purchase private insurance, exceeds Congress’s power under the Commerce Clause.  Suits against the federal government in Virginia and Florida by the attorneys general of 20 states claim that the health care law—in particular the individual mandate—is unconstitutional because it exceeds Congress’s constitutionally enumerated powers. Continue reading "Just How Broad is the Tax Power?"