Some federal judges think that they do not have much to learn from legal academics. At the very least, though, perhaps these judges could learn from legal academics some fruitful ways to learn from other judges. A good start down that road could begin with a recent article by Marin Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, in the Duke Law Journal.
In Mechanics, Levy offers a descriptive, analytical, and normative examination of case management practices in the federal circuit courts of appeals. These practices guide determinations about, among other things, “whether a case will receive oral argument or be decided solely on the briefs, whether its disposition will be drafted by judges and their law clerks or by staff attorneys, and whether it will be resolved by a published opinion or an unpublished, non-binding order.” Levy describes significant variations in these and other case management practices among the circuits that she has studied in depth. (P. 317.) For example, staff attorneys are heavily involved in screening cases for oral argument in the D.C., First, and Fourth Circuits, but “play almost no role in screening” in the Second and Third Circuits. (P. 339.) To pick another example, in the Fourth Circuit, only 13.1% of cases terminated on the merits have oral argument, whereas close to half of all such cases in the D.C. Circuit receive hearings. (Pp. 359-60.) Continue reading "Procedural Values and the Mechanics of Federal Appeals"
How and why do workers join unions? These most basic questions remain the source of significant academic and policy debate. Over the past two decades, unions, employers, and scholars have refocused on the importance of organizing and, in turn, the law relating to employee representational choice. The Employee Free Choice Act—currently in legislative limbo—would dramatically change the current structure by allowing unions to collect signature cards from a majority of the workers to be represented. Under the current system, however, unions must provide signature cards from at least thirty percent of the employees in order to move on to a secret ballot election. In the campaign period before the election, both parties are allowed to press their case vigorously—within limits. In a notable turn of phrase, the NLRB endeavors to establish “laboratory conditions” during the campaign period in order to determine the “uninhibited desires” of employees. General Shoe Corp., 77 N.L.R.B. 124, 127 (1948). As it turns out, establishing laboratory conditions is largely confined to a series of prohibitions: no threats, no bribes, no racially inflammatory speech. There is no obligation to insure that employees have the information they need to make a proper decision.
In Communication Breakdown, Professor Hirsch takes a new and compelling angle on this regulatory approach. While recognizing the importance of protections against coercion, he argues that the law has thus far overlooked the importance of positive employee discourse. He makes his case systematically. First, Hirsch marshals economic and psychological concepts to support the critical role of discourse in group cooperation. Using the work of scholars such as Olson, Ostrom, Axelrod, and Bar-Tal, Hirsch convincingly demonstrates how communication of information between interested parties is a critical catalyst to collective action. Without communication, parties cannot identify and evaluate collective interests or develop a plan of concerted action. Information-packed communication exchange—which Hirsch calls “discourse”—must be protected and even encouraged in order for employees to determine whether they would benefit from unionization. Continue reading "Ramble On: How Workplace Rights Depend On Employee Conversations"
Sandra L. Rierson, The Myth and Reality of Dilution
, 2012 Duke L. & Tech. Rev
. __ (forthcoming), available at SSRN
It’s become almost passé to decry our federal trademark dilution laws. The laws – first passed in 1995 and amended in 2006 – protect “famous trademarks” against uses that are likely to dilute their distinctiveness, without regard to any confusion among consumers or competition between the parties. Early critics warned that passage of the anti-dilution statute marked a turning point in trademark law: by giving famous trademark holders rights against even non-confusing uses of their marks, the law created “property”-like rights in trademarks. The initial commentary on the statute focused mainly on the costs associated with this increasingly absolutist approach to trademark rights.
After several years of witnessing the dilution laws in action, however, the nature of the commentary has shifted. Scholars have gone from a state of wary watchfulness to one of bemused head-scratching, as they have unpacked the theoretical underpinnings of the doctrine and observed its treatment in the courts. Dilution laws, it turns out, are a solution in search of a problem, and have had little practical effect. We have learned that consumers can handle linguistic clutter, so the supposed harm from dilution – the gradual whittling away of a mark’s distinctiveness – lacks empirical support. We’ve heard that the fear of famous trademark holders – that third parties have an incentive to adopt their mark in entirely unrelated markets – defies reality, in which businesses have little interest in replicating someone else’s utterly irrelevant mark. And we’ve been told that the dilution claim has made virtually no difference in the outcome of trademark litigation. No doubt because good old-fashioned trademark law gives owners rights to prevent uses in widely disparate markets, the owners of famous trademarks didn’t need this new statute to protect them against use of their marks even on unrelated products. Continue reading "Trademark Dilution and Corporate Personhood"
In our field, there are a few articles that every academic, even practitioners, should read for an understanding of modern administrative law: the so-called seminal works. In my opinion, Professor Thomas Merrill’s latest article—Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law—should be added to this list. In his article, Professor Merrill examines the historical development of the appellate review model as applied to administrative adjudication, and while this choice for judicial review was not inevitable, it has had wide-ranging consequences. Professor Merrill’s article explores both the origins and consequences of this model to explain, in part, why the Supreme Court “never seriously grappled with” the constitutionality of administrative adjudication. With this Article, Professor Merrell aims to explain and, perhaps, reignite the age-old question: “How … do we square adjudication on a mass scale by administrative agencies with text of Article III?”
In the first half of the Article, Professor Merrill details the adoption of the appellate review model in the administrative context and concludes that the adoption of this model explains why the Supreme Court so readily accepted agency adjudication. Prior to the twentieth century, courts either reviewed administrators’ actions pursuant to the prerogative writs (e.g., mandamus and habeas corpus) or did not review these actions at all. Yet, around the turn of the century, the courts adopted the appellate review model, which allowed agencies and courts to share decisional authority. Specifically, the appellate review model of judicial review, which mirrors the relationship between appellate and trial courts in civil litigation, has three salient features. First, a reviewing court decides appeals using only the evidentiary record generated below; if more evidence is needed, the court remands the case. Second, the appropriate standard of review varies according to whether the issue falls within the area of expertise of the reviewing court (law) or the lower tribunal (facts). Lastly, the law-fact distinction is the key variable for dividing judicial competence. Continue reading "The Appellate Review Model of Agency Adjudications"
Much recent scholarship on financial regulatory reform since the global financial crisis critiques the substance of new standards and rules. For this paper (the draft is dated September 2011) Kimberly Krawiec chose to examine the process which produces rules of financial regulation (this is the sausage-making of the paper’s title). The current administration, like governments of other countries, has emphasized the importance of transparency and open government and of opening up decision-making to citizen participation, so an academic study like this paper, which examines citizen participation in rule-making, is timely and important.
The paper’s case study is of the Volcker rule, which restricts proprietary trading and ownership interests in hedge funds and private equity funds by banking entities. Professor Krawiec chose to focus on the Volcker rule because it “had the potential to illuminate questions of whose voice gets heard on a major issue of financial reform as the sausage is really getting made”. The Dodd-Frank Act left significant discretion to regulators with respect to the details of this rule (and others): key terms and the contours of the exceptions to the bans are not clearly defined. Professor Krawiec explains that the exceptions were a necessary component of a compromise between those who thought that Dodd-Frank should do more to rein in large financial institutions and those who were sympathetic to complaints from financial institutions. She also points out that much of the trading the Volcker rule explicitly permits shares objective characteristics with proprietary trading, such that the motive for the trading is the distinguishing characteristic. Continue reading "Open Government and the Implementation of the Dodd-Frank Act"
Zev J. Eigen and Adam Seth Litwin, A Bicephalous Model of Procedural Justice and Workplace Dispute Resolution,
Northwestern Law & Econ Research Paper No. 11-21,
available at SSRN
Much has been written about arbitration of employment disputes in the nonunion sector. Much of this literature is theoretical and declamatory, rarely involving an examination of actual institutional arrangements, outcomes and perceptions. Some work has been done on outcomes in nonunion arbitrations, but these are hobbled by the inability to track the path different claims may take, including withdrawal and settlement. Employee perceptions have been studied in the union sector, but almost nothing has been done in nonunion companies, and certainly nothing that is able to provide a direct measure of innovations in alternative dispute resolution (“ADR”) systems in a given workplace.
Armed with a Ph.D. in Management from the Sloan School at MIT, his J.D. degree from Cornell, and management labor-side experience at Twentieth Century Fox and several law firms, Zev Eigen of Northwestern University School of Law is uniquely positioned and likely to improve this state of affairs in the study of the nonunion workplace. Eigen understands economics and the importance of revealed behavior but he is equally sensitive to the insights of psychologists like my colleague Tom Tyler. Perceptions of fairness affect behaviors, which have feedback effects for each other. Continue reading "Understanding ADR in the Non-Union Workplace"
How is it that people of wildly varying politics come together in viewing homophobic bullying in schools as an urgent problem? With whom does tackling homophobic bullying through a law-and-order paradigm make us allies? What forms of systemic homophobia, at home and in schools, does a focus on individual bullies obscure? What assumptions about queer adolescents’ sexuality and agency underwrite campaigns against homophobic bullying? Why is it so much easier to crack down on bullies in school than it is to talk openly about sex?
The strength of Daniel Monk’s article is that he shows convincingly that people committed to fighting homophobia can and should ask these questions. His interest is the “conditions of possibility” that have constructed homophobic bullying, discursively, as “a legitimate object of social concern within civil society.” Monk identifies the key discourses that have converged so as to legitimate concern about homophobic bullying. He also explores the political investments that underlie them and the responses to bullying grounded in penal or criminal law. Continue reading "The Problem of Bullying"
In the large and ever-growing category of articles I wish I’d written, the latest entry is Rick Pildes’s withering critique of a standard line about the Supreme Court. The standard line holds – roughly speaking, and its imprecision is one of the article’s main points – that the Court “cannot and does not stray too far from ‘majoritarian views’ …. If the Court does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far.” (p. 105). In the context of the Court’s recent Citizens United decision, Pildes exposes the ambiguity and fragility of this view.
Pildes traces the thesis of a majoritarian Court back as far as a book by Dean Alfange in 1937, although the same claims were clearly articulated by James Bryce in his neglected classic The American Commonwealth, first published in 1889. Whatever its origins, the thesis is usually associated with Robert Dahl’s classic 1957 article, which Pildes contrasts with the nearly contemporaneous identification of the “countermajoritarian difficulty” in Alexander Bickel’s 1962 book on the Court. Pildes argues that later commentators have taken the Dahl article and run too far with it, overreacting against a romanticized image of the Court as heroic guarantor of minority and individual rights. Thus Pildes offers a partial rehabilitation of Bickel as against, not Dahl himself, but rather Dahl’s successors. Continue reading "The Short-Run Inelasticity of Constitutional Law"
Two years ago I had an opportunity to attend the “Future(s) of Professional Services Programme” organized by Harvard Law School and Oxford Said Business School. It was a terrific conference in many respects, not least for its interdisciplinarity, bringing together scholars from business and law whose work focused on professional service firms. As a lawyer studying law firms in the context of globalization, the insight of the business scholars was enlightening: by placing law firms in the larger context of professional service firms and by bringing the framework of management and strategy to bear on the study of law firms, legal scholars gain a new perspective from seeing the same picture from a different vantage point.
In truth, conversations with law firm leaders and others that have informed my own work on globalization and the legal profession indicate that decisions about law firm globalization and strategy are neither so clean nor logical as some of the management and strategy school research suggests. Rather, law firms’ activities with regard to globalization often are as much reactive and opportunistic as strategic. Nonetheless, the analysis of the business school scholars reflects the reality of regulation outside of the US, in that regulators involved in international as well as foreign regulation of their domestic legal profession increasingly are not trained as lawyers and have little incentive to treat lawyers particularly differently than other professional service providers (see, for example, Laurel Terry, The Future Regulation of the Legal Profession: The Impact of Treating the Legal Profession as “Service Providers”). Continue reading "The Benefit of an Exterior View: Looking at Lawyers from an Outsider’s Perspective"
Martha Albertson Fineman, The Vulnerable Subject and the Responsive State
, 60 Emory L. J.
251 (2010), available at SSRN
Have philosophers of the liberal political order been correct in their understandings of the human condition? Moral arguments for liberalism have sometimes been difficult to separate from a standpoint from which liberal order appears as the archetype for social order generally: the human condition in its most exalted and successful form. Certain features of the Kantian legacy have provided much intellectual nourishment for liberal thinkers. Kant tells us: sapere aude! Lean not on others, but become autonomous! Neo-conservatives have seized upon this aspect of Kant’s thought, celebrating liberal society’s facilitation of the autonomous agent. Socialists, forced to engage with a liberal order that has triumphed over their deepest dreams, have emphasized a different dimension of Kant’s legacy, centring upon his ideas of equality and of justice.
Taking as its starting point ideas of equal protection under the United States Constitution, Martha Fineman’s article offers a criticism of recent writing in liberal theory for failing to understand the human condition in the right way. The most pressing characteristic of the subject of liberal politics is not autonomy, but vulnerability. One might say that neo-conservatives and those on the liberal left have misunderstood the nature of human vulnerability. For conservatives, vulnerability is connected with unfreedom. Full of ideals of personal liberty, they insist that as the state increases its organization of the welfare of the private sphere, people will become less resilient. Individuals must learn to stand on their own two feet if society is not to produce a class of dependent people. They have a point. Individuals will only become masters of their situation if they are allowed to create their own arrangements. Human freedom is a more ingenious solver of problems than the government’s legislative schemes. But liberal society itself does not equal the defeat of acquisitive and competitive instincts in human nature. Indeed, liberal society is unimaginable without a market that is also free to operate in uneven and cruel ways. The same neo-conservative philosophies thus also increase vulnerability, leading many to curse the inhumanity of a faceless system (the market) which remains harshly indifferent to their needs. Continue reading "The Human Condition And the Liberal Order"
Deborah Tuerkheimer, Judging Sex, 97 Cornell Law Review (forthcoming 2012), available on SSRN.
Professor’s Tuerkheimer’s article, Judging Sex is a valuable addition to the debate about where the line should be drawn when balancing the privacy of complainants in rape cases against the evidentiary and constitutional dimensions implicit in the right to present a criminal defense. She approaches the long-standing controversy with fresh eyes, arguing that any probative value imputed to sexual pattern evidence of complaining witnesses in an earlier era is clearly inapplicable in light of current sexual mores, thereby exposing the only basis for permitting such evidence as an inappropriate reliance on views of morality and sexual deviancy that no longer ring true. As a result, she presents a strictly evidentiary analysis of probative value (Rule 401) and prejudice (Rule 403), rather than falling back on the policy justifications for rape shields, which encourage rape reporting by protecting complainants from being subjected to detailed, embarrassing and often humiliating questions about their sexual histories.
Admittedly, rape shields also assume that the probative value of sexual history is low, and therefore make a categorical determination that the probative value of the evidence is substantially outweighed by considerations of complainant privacy and prejudice to the state when jurors refuse to convict because “she asked for it.” However, even today some rape shields permit sexual pattern evidence of the “alleged victim,” and interpretation of the Federal Rape Shield’s “exception” for constitutionally required evidence occasionally reaches the same result on the grounds that promiscuity, whether by numbers or types of sexual encounters, tells us something about consent in the current incident. By debunking the probative value of sexual pattern evidence, Tuerkheimer demonstrates that in the modern sexual environment, pattern evidence should only be admitted rarely when employing the probative value/prejudice (401/403) analysis. This conclusion also suggests that the Confrontation Clause would rarely require the admission of such evidence. Continue reading "Excluding Sexual Pattern Evidence of Rape Complainants When the Defense is Consent"
Katie R. Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law
, __ Minn. L. Rev.
__ (forthcoming 2011), available at SSRN
One might question the wisdom of a young, not-yet-on-the-market, scholar basically arguing that most of us in her field—including me—have been wrong in important ways. But wise or not, Katie Eyer’s article, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law (forthcoming in the Minnesota Law Review) is a remarkable piece of research and exposition. She has an ability to deal with complicated issues in a lucid and spritely prose style. I almost enjoyed being informed how wrong I was!
Katie’s a Research Scholar at Penn and her piece starts with the conventional wisdom of 21st century employment discrimination law: there’s a lot of bias out there, maybe mostly of the unconscious type, but, in any event, pretty pervasive. While scholars like myself have proposed ways to deal with this reality insofar as federal judges are concerned, Katie suggests a deeper problem: “most people in most factual circumstances are unwilling to make robust attributions to discrimination.” Continue reading "Barking Up the Wrong Tree: The Antidiscrimination Project and Public Perceptions"
Browne C. Lewis, Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously
, 60 Case W. Res. L. Rev.
1159 (2009-2010), available at SSRN
“Procreation is no longer left to the living” proclaims Professor Browne Lewis in this essay entitled Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously. (P. 1159) She explores three legal issues that have resulted from posthumous reproduction. Specifically she addresses the issues of parentage, procreative freedom, and probate. Professor Lewis examines the steps that must be taken to identify the legal parents of posthumously conceived children. She further discusses the rights of the deceased gamete providers. Finally, she focuses on the inheritance rights of these posthumously conceived children.
In the not so distant past, a fertile man and woman needed to have sexual intercourse to create a baby. A traditional family consisted of a husband, wife and their children. The children were either the biological children of the husband and wife or their adopted children. A child who was born into a marital union was considered legitimate and one born outside of the marriage was illegitimate. Reproductive technology has altered the American family. Intercourse is no longer necessary to create a baby. Although reproductive technology has resulted in many medical miracles, the legal community has been slow to respond to the medical advancements. Further, the legal community must deal with mistakes that inevitably occur. Continue reading "Unforeseen Consequences of Post-Mortem Procreation"
Robin West’s new book on “normative jurisprudence” should have an immense and lasting effect on American discourse about the law. This volume should be important for two reasons and in two senses of the word should: first, because Professor West has great authority in the American legal academy as an early and much-admired proponent of feminist jurisprudence, law and literature, and critical legal studies; and second, because she is in this volume on almost every point and in almost every way correct about the purpose, value, and nature of jurisprudence and the law.
I distinguish two senses of the word “should” in this way because the central argument West makes is that although both the “is” (predictions about existing power and authority) and the “ought” (justice) matter in understanding the path of American jurisprudence, the latter is more important, and much overlooked. West calls for a renewed “normative jurisprudence”, by which she means a jurisprudence dedicated to studying not primarily what the law is, but what it ought to be — how to make the law more just. Continue reading "The Province of Jurisprudence Determined"
Felix T. Wu, Collateral Censorship and the Limits of Intermediary Immunity
, 87 Notre Dame L. Rev. 101
(2011), available at SSRN
“Section 230” contains the single most important provision in all of Internet law:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Felix Wu’s Collateral Censorship and the Limits of Intermediary Immunity — his first article as a law professor — offers a perceptive new interpretation of this enigmatic sentence. It has always been clear that Section 230 protects intermediaries — the Googles, Facebooks, Comcasts, and bloggers of the world — from being held liable for user-generated content. But consensus in the core gives way to controversy in the penumbra: just how far does or should the immunity reach? Continue reading "Undiplomatic Immunity"
Media Piracy in Emerging Economies (Joseph Karaganis, ed., 2011).
For those of us who study intellectual property law or the relationship between law and the Internet, these are interesting times. So interesting, in fact, that it is difficult to keep up and to have a real sense for how the activities regulated by intellectual property law are evolving around the world. Now, thanks to Joseph Karaganis and the team of researchers whose efforts he has coordinated to produce Media Piracy in Emerging Economies (“MPEE”), we have a much clearer picture about how interesting, and puzzling, the times in which we live really are.
A little background. It is no secret that economic globalization and developments in digital technologies are interrelated but independent forces shaping the character and quality of human life around the globe. These forces have pulled the industries in the United States, Europe and Japan that produce capital-intensive film, music, software, video games and related media in different directions. Globalization has led to increased market access for media goods produced by these industries, but the growth of digital networks and related technologies have undermined these industries’ traditional production and distribution practices. To manage these divergent forces, media industry executives have invested heavily in influencing intellectual property law and policy. Continue reading "Access to Global Media in Middle and Low Income Countries: A Responsible Study"
Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.” The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth. John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers. In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding of separation of powers in the United States requires a more nuanced view of the subject than either extreme is willing to undertake. In my view, Manning’s article is the best published American law review article about separation of powers. It states a coherent theory of separation of powers clearly and elegantly, and it explains, just as clearly and elegantly, exactly why separation of powers extremists on both sides are wrong. The only problem I have with the article is that at the time I first read it in draft, I was working on my own separation of powers article, and Manning stole, improved and expanded upon much of my thunder.
There is too much of value in this article to capture in a brief review, so I focus on two aspects, namely Manning’s disagreement with the extremes in separation of powers and the middle way that Manning charts, based on his view that separation of powers in the United States embodies a constitutional compromise. Along the way, I explain what Manning means by “ordinary interpretation” and how that differs from the interpretive methods employed by separation of powers extremists on both sides. Continue reading "Separation of Powers and the Middle Way"
Over the past decade in Canada, and particularly over the past five years, we have seen an increase in the number of prosecutions of nondisclosure of HIV status. Most of these cases are prosecuted as aggravated sexual assault, our most serious sexual offence, punishable by life imprisonment. Unlike sexual assault generally, there has been a dearth of literature in Canada addressing this issue from the perspective of its impact on women.
This is an exceptionally difficult issue for the feminist legal movement. On the one hand, prosecutions of nondisclosure could be seen as protecting the sexual autonomy of women who are often the victims of men who fail to disclose their HIV-positive status. Expanding the notion of fraud negating consent could be seen as empowering women to choose the circumstances in which they consent to sexual activity. However, women are also potential accused persons in these cases. Sex workers, immigrant women and poor women may be particularly at risk of criminalization for failure to disclose. Recently a 17 year old girl in Edmonton was named publicly and charged with aggravated sexual assault for not disclosing her status to two men. Rates of HIV are increasing in young women in Canada and we need to ask whether criminalization, in the long run, will protect women from HIV or further marginalize and isolate this already highly stigmatized group. Continue reading "The Impact of the Criminalization of HIV Non Disclosure on Women"
Ashutosh Avinash Bhagwat, Details: Specific Facts and the First Amendment
(2011), available at SSRN
Imagine two speech scenarios. In the first, a noted scientist publishes a paper offering specific, detailed, and accurate empirical evidence concerning the genetic structure of a rare and fatal disease. Few people suffer from the disease, and even fewer will understand the paper, but it represents a great leap forward in understanding the underlying nature of the disease. The paper does, however, include patient information that is supposed to be confidential under federal privacy laws. In the second, a newspaper published a letter to the editor by a local crank charging that the climate change movement is a worldwide conspiracy in which scientists are deliberately lying to the public. The letter is a poorly supported rant. Which speech deserves greater protection under the First Amendment?
Although he would offer some protection to both, Ashutosh Bhagwat argues, in a new working paper, Details: Specific Facts and the First Amendment, that the second speech—the false, unhelpful work of what Holmes would have called a “poor and puny anonymity”—deserves more protection than the paper that may revolutionize understanding and treatment of a variety of genetically based disorders, a Nobel Prize in waiting. His answer is not outrageous, and some may find it unsurprising. But even recognizing that the question exists is important. Continue reading "“Living Turned Inside Out”: True Facts and the First Amendment"
As is abundantly clear from the Supreme Court’s June 2011 decision in Stern v. Marshall, the debate over the propriety of non-Article III federal adjudication tends to reduce to the classical divide between separation-of-powers formalists and functionalists. Thus, Chief Justice Roberts’s opinion for the 5-4 majority, in the course of holding that non-Article III bankruptcy courts could not constitutionally exercise jurisdiction over certain kinds of state-law counterclaims, repeatedly trumpeted the need zealously to protect Article III prerogatives from even the smallest encroachment. In contrast, Justice Breyer’s dissent harped on the real-world efficiency that such adjudication promoted, criticizing the majority for failing to appreciate how much its decision would likely slow down (and further complicate) bankruptcy litigation by requiring the intervention of district courts before final judgment in a far greater number of cases. As Breyer explained, “a constitutionally required game of jurisdictional ping-pong between courts would lead to inefficiency, increased cost, delay, and needless additional suffering among those faced with bankruptcy.”
For those, like Justice Breyer, who are taken by the functional case for non-Article III adjudication, Lawrence Baum’s new book, Specializing the Courts, couldn’t come at a better time. Indeed, although Baum’s monograph consciously sidesteps the debate over the constitutionality of non-Article III adjudication, there are obvious—if not compelling—parallels between his comprehensive treatment of the causes and consequences (and pros and cons) of judicial specialization and the functional case for at least most non-Article III federal courts. Continue reading "Judicial Specialization and the Functional Case for Non-Article III Courts"
David Hasen, Tax Neutrality and Tax Amenities
, __ Fla. Tax Rev.
__ (forthcoming 2011), available at SSRN
As with many areas of law, a canon of sorts has grown up around the field of international taxation. Pursuant to this canon, income disappearing “through the cracks” of the international taxing regime, and the resulting loss of tax revenue, has been singled out as one of the single largest problem plaguing the international fiscal order. This has led to concerted efforts to recapture this disappearing tax base through multiple types of enforcement or punishment, most famously through a blacklist campaign led by the OECD against so-called uncooperative tax havens.
What may surprise some, however, is that this canon appears to rest primarily on a single, somewhat dated, premise arising from the public finance literature: that of tax “neutrality” – or the idea that the tax law should not change where and how capital invests around the world as compared to what would occur absent taxes. Neutrality, it was argued, was the sine qua non of the international tax regime in that it would prevent “distortions” to international capital flows, thus maximizing worldwide efficiency; increased worldwide efficiency would mean increased worldwide growth, making all countries better off – the supposed common goal of all. Given that neutrality would benefit the entire worldwide tax regime, the argument went, it was appropriate or even necessary to punish countries which did not adopt “neutral” policies in their tax laws as well. Even critics of this approach seemed to base their analysis in neutrality terms, effectively ceding the battleground before a shot was fired. Continue reading "Taking Sovereignty Seriously"
For over a century, the default job-termination rule in the private sector of the United States has been at-will employment, under which an employer can discharge its employees for any reason, good or bad, or for no reason at all. Although the common law as well as state and federal statutory law has chipped away at this default rule, at-will remains the default standard in every U.S. state except Montana, which has adopted a just-cause discharge standard. These default rules—at-will and just cause—have framed the legal debate over what role the law should play in regulating individual job security.
Professor Arnow-Richman astutely observes that this debate has been framed too narrowly. She notes that a “just cause rule provides only a weak cause of action to … those workers who can prove in court that they were fired for purely arbitrary reasons.” After all, job insecurity has been on the rise. The unemployment rate for the past three or four years has risen dramatically from 4.4 percent in December 2006 to a high of 10.1 percent in October 2009, with a current unemployment rate hovering at 9.1 percent. Given the “profound” changes in the employment paradigm over the past half-century, which includes a rise in short-term and contingent labor, and given that today’s workers are most likely to lose their job for economic reasons—a good reason—then perhaps we need “a fundamental shift in the goals and focus of employment termination law.” Continue reading "Just Notice: A Paradigm-Shifting Solution to Economic Dismissals"
The implications of determinism have long bedeviled our responsibility practices. If one starts with the premise that human beings are not “uncaused causers” but rather are comprised of beliefs, desires, values, and reasons that are themselves unchosen, then one begins to wonder how we can be responsible for our actions. Although compatibilists believe that responsibility is possible even if determinism is true, hard determinists believe that we are determined and that blame and punishment cannot be reconciled with that fact. Because individuals do not choose who and what they are, hard determinists maintain our current punishment practices are completely unjustified as criminals do not – indeed, cannot – deserve to be punished.
Enter Saul Smilanksy. In his marvelously playful and thoroughly convincing article, Smilansky questions exactly what will happen in a hard deterministic world. The answer may surprise you – punishment will have to give way to “funishment.” Continue reading "Does Hard Determinism Require “Funishment” Instead of Punishment?"
Should charitable trusts be perpetual and should such philanthropy benefit from generous tax subsidies? Professor Ray D. Madoff of Boston College Law School addresses what are perhaps the most fundamental questions of charitable trust law in a surprisingly accessible and engaging article. The article reads less like legal scholarship and more like a good story, perhaps owing to the fact that it relies upon her book, Immortality and the Law (Yale Univ. Press 2010).
Professor Madoff opens with a character sketch of Leona Helmsly, the “queen of mean,” who harnessed the tax benefits supporting philanthropy to fund an eight-billion-dollar trust for the benefit of dogs (in addition to funding a comfortable twelve-million-dollar fund for her own aggressive terrier). She explains the role of tax expenditures in supporting such donations and invites her reader to question whether the benefits from such a system are worth its costs. Continue reading "The Big Questions of Philanthropy Law in a Delightful Snack-Size Portion"
Scott Dodson, Hybridizing Jurisdiction
, 99 Calif. L. Rev. __
(forthcoming 2011), available on SSRN
; Scott Dodson, Mandatory Rules
, 61 Stan. L. Rev.
I recall quite clearly when, as a rookie law professor some years back, it occurred to me to wonder why we accorded so much weight to questions of jurisdiction. What was so special about making sure the amount in controversy really exceeded the statutory threshold or that the citizens, apparently from different states, were really so? Why regard jurisdiction as an especially favored defense; one that the courts must raise on their own motion and that the parties may mount at any time, even for the first time on appeal or when they have consented to the court’s jurisdiction or have invoked it themselves? What about the well-known waste of resources associated with jurisdictional failure? In my search for better understanding, I approached a senior colleague who explained that some things were just too well settled to question. After kicking the issue around for a while, I moved on to another project, concluding that jurisdiction was (as Mark Twain reportedly observed) too various for me.
Happily, at least for those who (like me) enjoy a good jurisdictional puzzle, others have decided to tackle the varieties of jurisdictional experience. In fact, over the past ten years or so, a group of mostly junior scholars have done much to broaden our understanding of the nature of jurisdiction. Instead of thinking of jurisdiction as a monolith, as I did, these scholars have taught us to think of jurisdiction more as a bundle of sticks (to borrow that construct from our property colleagues). Jurisdiction may have a number of different legal characteristics and not all of them need to apply to all issues that touch the power or ability of a court to adjudicate a claim. Merits and jurisdiction, though placed in separate boxes by jurisdiction casebooks, often blend in practice. Continue reading "Rethinking Jurisdictionality"
The GW Center for Law, Economics & Finance, under the leadership of the redoubtable Lisa Fairfax, last spring held its first Junior Faculty Business and Financial Law Workshop. I was one of the old fogies called in to do commentary. It was a successful event. The papers were strong and I was glad of the opportunity to acquaint myself with their authors.
One of the papers has loomed particularly large in the memory—From Graham-Leach-Bliley to Dodd-Frank: The Unfulfilled Promise of Section 23A of the Federal Reserve Act, by Professor Saule T. Omarova of North Carolina Law. Continue reading "Into the Heart of Darkness"
Milton C. Regan, Jr. Taxes and Death: The Rise and Demise of an American Law Firm, in
Austin Sarat, ed., Law Firms, Legal Culture, and Legal Practice,
52 Stud. in Law, Politics, and Society
107 (special issue) (2010), available at SSRN.
Milton Regan has chronicled the troubled times of law firms before in Eat What You Kill: The Fall of a Wall Street Lawyer (2004). On both occasions the firms appear to have undergone profound changes in culture that have eventually destabilized them and either wrought dire consequences for the lawyers or caused the death of the firm. Regan is a methodical obituarist.
He ascribes two underlying causes to these cultural shifts. One is the tenuous hold a law firm has on its share of the market. Lawyers might move taking clients with them or new specialist firms might aggressively shift into an established market drawing business away from others. The firm’s mix of top quality work may get diluted with less valued work. The second is the organizational dynamics of the law firm. Law firms operate under continuing centrifugal forces as practice groups proliferate and new rainmakers join putting management in the position of persuading and cajoling others to stay. Emmanuel Lazega refers to these factions as composing a Montesquieu structure of interlocking competing networks. And there is the everpresent problem of ethical fading—lawyers inured to certain liminal behaviours—when lawyers may no longer realize how their behaviour may be characterized. There are two absences in Regan’s analysis: one is the role of regulation and its interaction with ethics and the other is the rise and domination of the professional services firm. Continue reading "When Law Firms Forget Their Culture…"
Mary D. Fan, Beyond Budget-Cut Criminal Justice
, 90 N.C. L. Rev.
__ (2011-2012, forthcoming), available at SSRN
The effect of budget cuts on criminal justice systems seems obvious enough. Shrunken police departments result in low enforcement priorities (or non-enforcement) for non-violent offenses. Fiscally constrained prosecutorial resources mean that some offenses will be ignored rather than prosecuted. But what of prisons? Certainly many prison systems around the country have suffered similar fates as police departments and prosecutor’s offices: attempting to do the same (or more) with less. In many states, prisoners have faced even harsher conditions of confinement, including overcrowding, reduced medical attention, and fewer resources for substance abuse treatment and job training.
Yet as Mary D. Fan observes in her timely and thought-provoking Beyond Budget-Cut Criminal Justice, the economic downturn of the past few years has yielded an unexpected result: the emergence of certain penal reforms that were once thought to be politically impossible. Many criminal justice scholars have lamented the steady rise of incarceration rates in the United States; we imprison people at a higher rate than any other country in the world. This “incarceration stagnation,” as Fan puts it, continues despite a well-documented crime drop in the 1990s, evidence of diminishing gains as incarceration rates continue upward, and public opinion polls suggesting that a primary focus on incapacitation (rather than rehabilitation and alternatives to imprisonment) may be misguided. Public officials have typically avoided serious solutions to the incarceration crisis, for fear of appearing “soft on crime,” and suffering the electoral consequences. The recent recession, however, has created opportunities for legislators facing budget emergencies to explore and propose a variety of reforms. Continue reading "Can Fiscal Crises Change Our Incarceration Problem? Maybe."
Last fall, the New York Times reported that in the halls of academia, studying culture was no longer, like Lord Voldemort, “that which must not be named.” Culture was officially back on the poverty research agenda. According to the story, much of this newfound respectability had come courtesy of William Julius Wilson, the Harvard scholar who has long argued on both culture and structure fronts. In 2009, Wilson published a book, More Than Just Race, in which he marshaled the best of sociological research to argue that both structural barriers and cultural impediments keep poor people of color trapped in poverty. In the end, Wilson concluded that the structures of racism and the globalizing economy matter far more than the cultural behavior that conservatives love to blame. But in the essay that this review focuses on, Wilson focuses less on which trumps which. Instead, he makes a strong case for a “unified framework” to integrate both structure and culture.
If I might put the argument in a stylized form, Wilson shows in essence that structure and culture are related to each other in a positive feedback loop, in which structure shapes culture, and culture in turn shapes and contributes to structure. So for example, Wilson points out the way in which segregation and a globalizing economy produce informal illegal economies, in which the “code of the street” and distrust of the police become commonplace cultural norms as rational responses to illegality and isolation. These codes of the street and their accompanying frameworks of meaning—distrust of the police, for example–contribute in turn to the perpetuation of segregation and diminished access to jobs. And the cycle goes round and round. In integrating structure and culture into one analytical framework, Wilson continues to make a strong case (as he has for twenty years) that the study of culture should enjoy full respectability in the academy. It seems left academics are finally listening. Continue reading "Structure and/or Culture"
Martha T. McCluskey, How the ‘Unintended Consequences’ Story Promotes Unjust Intent and Impact
, 21 La Raza L.J. __
(Forthcoming 2011), available at SSRN
One of the more unnerving aspects of the recent financial crisis is the speedy recovery of those large financial firms that survived the crash. Gifted with eye-watering sums of virtually free credit and liberated from the ‘toxic’ assets that their financial engineering created, global financial firms such as Goldman Sachs reported higher than ever earnings in 2009 and 2010. Elsewhere in the economy, the prospects of recovery are remote and receding. The reframing of the crisis as ‘fiscal’ rather than ‘financial’ has forced sovereign countries to take out unsustainable loans in order to appease their bondholders. Jobs, pensions, and public services have been slashed in the US and across Europe. US homes are being lost to foreclosures at an extraordinary rate (some reports estimating up to 10-13 million foreclosures) as the consequences of the crisis continue to rip through the economy. Compounding the direct dispossession of those whose homes are taken, foreclosure actions blight entire neighborhoods, exerting yet more pressure on whatever little equity in their homes residents may have sheltered from the predatory lenders.
The juxtaposition of business as usual on Wall Street and in the City of London with the destruction of homes, livelihoods and other means of economic security of workers and the unwaged, pensioners and children in the US and Europe shows that neoliberalism’s project of robbing the poor to give to the rich has survived the crisis, gathering strength in its wake. Martha McCluskey’s illuminating working paper, How the ‘Unintended Consequences’ Story Promotes Unjust Intent and Impact, analyses the persistence of upward redistribution in policy making and asks how one of its key supporting narratives can be resisted. The paper provides an excellent overview of the crisis for equality theorists who are not specialists in the intricacies of neoliberal “financialization”. It explains some of the decisions within financial firms–and by some regulators–that created the crisis; and vividly illustrates the devastating impact of those decisions on US communities, particularly Communities of Colour. McCluskey uses the example of the financial crisis effectively to illustrate the argument that the “unintended consequences” narratives in policy discussions about egalitarian regulation serves to rationalize the legal underpinnings of upwardly redistributive measures and perpetuates “the ideology that law is powerless to disrupt a naturalized order of inequality outside of law” (P. 9). Continue reading "Home Truths About Unintended Consequences"
Julie E. Cohen, Copyright as Property in the Post-Industrial Economy: A Research Agenda
, 2011 Wisc. L. Rev.
141, available at SSRN
Copyright law in the United States has traditionally been justified in both economic and property-based terms. In order to incentivize the socially optimal amount of creativity, the story goes, we grant to authors a certain bundle of rights over the work they create for a limited (although significant) period of time. Without this incentive, copyists, who need only to recoup the cost of copying and not the cost of production, would undermine the creator’s opportunity to profit from the work. The story thus assumes that commercial exploitation of creative work is the natural (and desired) end of the creative process and that some form of legal entitlement is needed as a means to that end. The focus thus shifts to the work itself: If the work demonstrates the required originality and modicum of creativity, and is fixed in a tangible medium of expression, it qualifies for copyright protection, regardless of the truth of the incentive narrative.
The longevity of the economic narrative derives, in part, from the identity of the players in the early copyright debates, in which printers and stationers were the primary agitators for increased rights over creative works and individual authors merely useful characters to make more human the arguments. But as various commentators have noted over the years, the economic story can be told only by some creators. We can assume, for example, that if Disney or Random House or Atlantic Records were not able to turn a profit from the creative works they bring to market, they would soon be out of the business. But for others, creativity stories are not tales of buying and selling; they are tales of emotion, passion, and inspiration, of creating without being motivated by commercial exploitation. Such artists are not completely indifferent to how their work is used – they might, for example, very much care about getting credit for their work so as to build their reputational, if not economic, capital. But the traditional copyright narrative, which assumes commercialization, does not map well onto the motivations and interests that these artists demonstrate. We might, therefore, ask whether the Constitution’s goal of “promot[ing] the progress of Science” would be better achieved by focusing less on whether a work is copyrightable and more on the interests of those involved in distributing that work to the public. Continue reading "Copyright’s New Narrative"
Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space
, 125 Harv. L. Rev.
____ (Forthcoming 2012), available at SSRN
Areas of fragmented and overlapping delegations of power to administrative agencies are common today. For example, fifteen federal agencies play roles in the American food safety arena. Similarly, twelve different agencies deal with exports, and numerous agencies regulate the financial sector, including the SEC, CFTC, OCC, FHA, FDIC, OTS and the Federal Reserve. In addition, as President Obama recently quipped during a State of the Union Address, we have one agency (the Department of the Interior) that is in charge of salmon while they are in fresh water, but a different one (the Department of Commerce) that handles them when they are in saltwater.
Despite the prevalence of these sorts of overlapping delegations in the regulatory arena, legal scholars generally have approached administrative law through a single-agency lens. In a forthcoming Harvard Law Review article titled Agency Coordination in Shared Regulatory Space, Professors Jody Freeman and Jim Rossi seek to change this picture. Specifically, Professors Freeman and Rossi depart from what they call the “single-agency focus that is so foundational to administrative law” by offering the “first comprehensive discussion in the legal literature of the problem of fragmented and overlapping delegations of power by Congress to administrative agencies.” Continue reading "Coordinating Agencies"
The great recession has hit state and local governments nationwide very hard. Many have turned to the unions that represent their employees for wage, benefits and work rule concessions in an effort to reduce expenditures. When they have been unable to secure such concessions, they have resorted to unilateral action abrogating their collective bargaining agreements. Their actions have taken many forms. Some are redressable under the contract’s grievance and arbitration procedures or in unfair labor practice proceedings before the state public sector labor relations agency. However, in many cases such redress is not available, leaving the only avenue an action alleging an unconstitutional impairment of contract.
Stephen Befort‘s article, “Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause,” tackles head on the extremely important and timely topic of when unilateral modifications of public employee collective bargaining agreements in response to fiscal crises constitute an unconstitutional impairment of contract. Befort first provides a brief background on the development of public sector labor law and public sector collective bargaining. He observes that where unilateral modification of public employees’ collective bargaining agreements is accomplished through legislation, public sector labor relations acts are of little utility because the legislature is not the employer. Consequently, the only generally available avenue of contest is under the Contract Clause of the Constitution. Befort then provides useful and detailed background to the development of Contract Clause jurisprudence in general. Continue reading "The Impairment of Public Sector Collective Bargaining Agreements"
David Strauss has written an elegant and compelling book, the distillation of his work on constitutional interpretation over the last decade or more. His argument is at once positive and normative. Strauss argues that most U.S. constitutional interpretation – and some of the most important and foundational of the Supreme Court’s constitutional decisions – can only be understood as a form of common law adjudication, developed over time based on practice and precedent far more than on constitutional text. As a normative matter, Strauss argues that living constitutionalism, developed and constrained through the methods of common law adjudication, is a superior approach to interpreting the Constitution than is originalism. Those not familiar with Strauss’ work should read the book; those who are will still enjoy the concision and insight with which his prior articles have been distilled.
The first two chapters include his attack on originalism and his defense of the virtues of common law constitutional adjudication. The attack on originalism synthesizes critiques of the impossibility, and undesirability, of the kind of “constraint” imposed by originalism’s commitment to interpreting in light of specific original understandings, including the difficulty of reconstruction, the challenges of “translation” and the democratic challenge of giving controlling force to the original understandings of an instrument intended for present governance. Moderate originalism, he argues, in its appeal to general principles diminishes the key feature of constraint that originalism’s proponents emphasize. Continue reading "Constitutional Change and Living Trees"
Brent T. White, Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies
, 43 Cornell Int’l L.J.
307 (2010), available at SSRN
One prevailing idea is that democracy, which fosters economic development, requires the rule of law. In other words, the rule of law will remedy the economic woes of emerging democracies. Another prevailing idea is that juries are antithetical to the rule of law. Because foreign companies are less likely to invest in a country with juries, which do not follow the law, emerging democracies should not establish juries. Brent White boldly questions both of these ideas in his article Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies.
White’s proposal comes at a time in the United States—the country with the most extensive jury trial right—when juries are in decline, with jury trials occurring in approximately only 2% of criminal cases and 1% of civil cases. So, you might ask, if juries do not seem necessary in an established democracy, why should juries be the answer in emerging democracies? Continue reading "Juries and Emerging Democracies"
Martin D. Begleiter, Son of the Trust Code – The Iowa Trust Code after Ten Years
, 59 Drake L. Rev
. 265 (2011), available on SSRN
Back in 2001, Professor Martin Begleiter published an article analyzing the drafting and revision of Iowa’s comprehensive new Trust Code, of which he was a primary author. A decade later, Professor Begleiter has released a follow-up work, Son of the Trust Code—The Iowa Trust Code after Ten Years. This new article chronicles the evolution of the Iowa Trust Code during its first decade of operation, discussing both legislative amendments and judicial pronouncements. Professor Begleiter’s new work, like his former one, not only offers a fascinating look into the legislative and judicial processes but provides invaluable lessons for other states which have recently adopted, or are considering adoption, of the Uniform Trust Code or other comprehensive legislation regulating trusts.
Three factors combine to give Begleiter’s article national relevance and enduring significance. First, his subject matter is vitally important. The promulgation of the Uniform Trust Code (“UTC”) gets my vote as being the most significant trust law development of the 21st Century. Enacted in approximately half of the states, and under consideration in numerous others, the UTC has reinforced timeless principles of trust law while revolutionizing others — generating robust scholarly debate among its many supporters and detractors. The Iowa Code, however, is not an enactment of the UTC. Rather, while it often parallels the UTC, the Iowa Trust Code was developed through an independent drafting process. Accordingly, studying the Iowa Trust Code offers an opportunity to compare and contrast Iowa’s approaches to crucial issues with the UTC’s approaches to those same issues. Continue reading "Father of the Iowa Trust Code"
Robert K. Vischer , Big Law and the Marginalization of Trust
, 25 GEORGETOWN J. LEGAL ETHICS ____ (forthcoming 2011), available at SSRN
In many respects, law practice involves a brave new work of global lawyering. On a daily basis, lawyers from Main Street to Wall Street represent clients with transnational legal needs. At the same time, lawyers face pressure to reduce the costs of delivering legal services. Cost containment initiatives include outsourcing legal work to subcontractors who provide services at a lower cost. Whether legal work is sent to Indiana or India, outsourcing results in less personal connections between clients and the lawyers who originally were retained to handle the representation. Increasingly, in-house counsel unbundle the corporation’s legal work, dividing the work among numerous law firms rather than relying on one firm to meet needs on a full-service basis. For many, these trends threaten the very fabric of the trust relationship between clients and their attorneys. In his forthcoming article, Big Law and the Marginalization of Trust, Professor Robert Vischer examines the role of trust in the current climate and economic reality of global lawyers. As the title suggests, the article considers whether trust is a casualty of the trends in the structure, operation, and regulation of law firms. Rather than simply declaring trust dead, Professor Vischer persuasively explains why trust is of vital importance to lawyers, the clients we serve, and society.
The article is particularly interesting in providing context for understanding the concept of trust and the role it plays in professional relationships. Professor Vischer starts by discussing the nature of trust and the difference between cognitive and affective trust, referring to the definition of trust as a “state of mind that enables its possessor to be willing to make herself vulnerable to another—that is to rely on another despite a positive risk that the other will act in a way that can harm the trustor.” (quoting A Cognitive Theory of Trust by Claire A. Hill and Erin Ann O’Hara). The discussion of vulnerability is particularly timely given that a few experts have urged the 2020 Ethics Commission to consider adopting separate ethics rules to regulate large law firms that represent sophisticated clients who can presumably protect themselves and are therefore not vulnerable. This relates to Professor Vischer’s observation that different potential clients may require different degrees and manifestations of trust. Continue reading "Trust in the World of the Global Lawyer"
It is so very lucky that Sarah Woo chose to write Regulatory Bankruptcy: How Bank Regulation Causes Firesales as one article, not the four it could have been. When she died this summer, the legal academy lost a truly original thinker and careful researcher who asked the right questions—and had the knowledge, insight, and judgment to answer them. It is a huge loss.
Regulatory Bankruptcy is the rare article that finds smart answers to interesting questions, which also happen to be good answers to very important questions. The project occupies the intersection of bankruptcy, financial regulation, risk management, and crisis response, and makes theoretical and empirical contributions to each of these fields. I especially appreciate the way in which it helps flesh out the under-studied relationship between law and macroeconomic policy. Continue reading "Vision and Loss"
In her hilarious book Bossypants (which is another thing I like lots but alas, falls outside my mandate), Tina Fey reveals some insider knowledge about the male-dominated world of Saturday Night Live: “Male comedy writers piss in cups. Also, they like to pretend to rape each other. It’s . . . Don’t worry about it. It’s harmless, actually.”
I had that anecdote in mind as I began preparing to write this review of Kim Buchanan’s article. Then, in a moment of synchronicity, two days before I actually sat down at my computer to write, I ran across this joke in a free humor magazine, the kind printed on newsprint and assembled to support advertisements for local businesses in small rural towns. I apologize in advance for its offensiveness, but it completely makes my – and Buchanan’s – point. Continue reading "Violence Against Men: In Prison and Out"
While histories of the United States are just beginning to creep into the 1980s, Daniel Rodgers has produced a panoptic intellectual history that takes his readers into the twenty-first century. As someone who came of age in what Rodgers compellingly titles the “age of fracture,” I found it disconcerting to read about my own intellectual development in a history book. Okay, what I really mean is that it made me feel old. But I suspect that it would make Rodgers happy to learn that his book stretched out and rematerialized time for this reader. After all, coursing through the book is dismay at how the abstraction of time and discounting of history has impoverished everything from economic to political theory. In other words, his book is, in part, a historian’s lament, and it should appeal to historians for this reason alone. The Age of Fracture is also a meditation on the causes of America’s current tattered social welfare state, a capstone to the story begun by Rodgers in his equally breathtaking Atlantic Crossings: Social Politics in a Progressive Age (1998). Legal historians should take particular interest in the book. It places in historical context a number of trends in legal thought, from law and economics to originalism.
Rodgers argues that during the closing decades of the twentieth century, liberals’ and conservatives’ concepts of power, time, identity, wealth, and community fragmented, becoming thinner, smaller, and more malleable. Individual choices replaced historical and structural forces as explanatory variables. Rodgers deftly interweaves trends from across the political spectrum. He argues that the Foucauldian turn among leftist academics was of a piece with conservatives’ embrace of rational choice theory (both trends dematerialized power). Colorblind constitutionalism, Rodgers also contends, shared implications with black intellectuals’ “celebration of paradox, improvisation, and hybridity” in 1990s race theory (both discounted the heavy hand of the past in shaping the present). (140) Continue reading "Legal History as American Intellectual History"
The recent shuttering of Borders reminded us all of the huge competitive advantages that online merchants enjoy over brick-and-mortar retailers. Foremost among these advantages is the ability to exploit Quill Corporation v. North Dakota, 504 U.S. 298 (1992), and avoid collecting use tax on sales so as to achieve a practical 5 to 10% price advantage. Quill held that a state could require use tax collection only from a seller with a “physical presence” in the state. Michael Mazerov’s Amazon’s Arguments Against Collecting Sales Tax Do Not Withstand Scrutiny (2010) presents a complete analysis of the issues here. (An earlier version was published at 54 State Tax Notes 728 (2009).)
Mr. Mazerov carefully dissects all of the arguments against taxation using Amazon as a case study. He starts by looking at the argument that multistate tax collection would unduly burden interstate sellers. He points out that Amazon already collects tax in every state of the union but one for customers like Target. Amazon even collects value added taxes on foreign sales. Supporting U.S. states presumably would require only “the flip of a (software) switch.” Continue reading "Online Retailers’ Tax-Free Lunches"
Scott J. Shapiro, Legality
(Belknap Press 2011).
Scott Shapiro’s splendid new book offers a novel theory of the nature of law: legal systems are essentially systems for complex, impersonal social planning, and legal norms are plans. The book provides a new perspective on law, which is both refreshing and fruitful. By thinking about the origins, purposes, and essential features of plans, we gain insight into law. A significant side benefit is that the book connects law to topics in contemporary philosophy of action.
Legality has more virtues than I can discuss here. To begin with, although the book is a highly original contribution to the philosophy of law, it presupposes relatively little background. It is also extremely clearly and engagingly written. The book would therefore make a superb text for a law school, advanced undergraduate, or graduate course. And, because Shapiro frames the issues in new ways, even those portions of the book that introduce and discuss familiar positions and issues provide much food for thought for specialists as well as the more general reader. Continue reading "Law Through the Prism of Planning"
Scott J. Shapiro, Legality
(Belknap Press 2011).
Analytical jurisprudence has a peculiar status in American law schools to say nothing of philosophy departments. Most law professors find it an utterly inscrutable or arid project. More generous souls have the vague impression that it is important and like that one or two of their colleagues engage in it, but their gentle forbearance is not to be mistaken for interest. Even those steeped in the subject are often discouraged by the increasing narrowness of the “What is Law” question. It takes a good deal of squinting to see the live question surrounding the nuanced positions on the extent to which morality determines whether something can be considered law; that is, the “validity conditions of a legal system.”
Against this rather gloomy landscape, Scott Shapiro has introduced an illuminating new book, Legality. Though there are few who are as knowledgeable about analytical jurisprudence as Shapiro, his book is admirable not for its attempt to dazzle with intricacies. Rather, Shapiro’s work is laudable because it makes accessible decades of debate in modern jurisprudence while still providing a novel contribution. Most importantly, Shapiro revives the heartbeat of the debate, showing why it matters and synchronizing it with legal issues recognizable to those outside of the small world of analytical jurisprudence. This accessibility means that those who know this debate will find the preliminaries unnecessarily long, a quarter of an already rather long book. Yet, it is no small thing that Shapiro manages to explain half a century of thick debate in a way that interested audiences of lawyers, and perhaps more immediately relevant, undergraduates and law students can understand its contours. Speaking for the many professors who have shied away from teaching the subject, Shapiro’s book makes one reconsider the profitability of reintroducing this debate in the classroom. Continue reading "Planning Ahead! (in Jurisprudence)"
Julie Nice, How Equality Constitutes Liberty: The Alignment of
CLS v. Martinez, 38 Hastings Const. L.Q.
631 (2011), available at SSRN
The controversial decision of the United States Supreme Court last year in Christian Legal Society v. Martinez involved a dispute at Hastings College of Law. On one side, the College of Law applied its blanket nondiscrimination policy as a prerequisite for recognition of student groups. On the other side, the student organization Christian Legal Society, backed by the national organization, argued that a nondiscrimination policy that included sexual orientation infringed on its religious freedom. Thus, the case can be easily understood as just another battle in the continuing war between equality (for sexual minorities) and liberty (of religious freedom) fought on the field of various First Amendment doctrines. Too much of what I’ve read about the case succumbs to this reductive reading.
Professor Julie Nice, of the University of San Francisco School of Law, resists the easy renditions. Her article is refreshing because she engages the theories, the doctrines, and the politics with equal urgency and depth. It is also invigorating in its accessibility: Nice’s language does not obfuscate or overwhelm. Moreover, while the article centers on a single case and was written for a symposium on CLS v. Martinez held by the Hastings Constitutional Law Quarterly, it looks backwards and forwards as well as sideways to illuminate the notions of “equality” and “discrimination.” Continue reading "Battle of Hastings"
Empirical studies of IP that measure the effect of IP on innovation are difficult to pull off. The cleanest way to measure the effect of IP on innovation would be to run a controlled experiment in a laboratory setting: take two similarly situated groups of innovators, subject one group to a regime of exclusive rights and the other to a public-domain regime, and then sit back and watch the differences that evolve in the two groups. Unfortunately for economists, innovators cannot be treated like laboratory rats, so actively creating the control group that is required to measure the effect of IP on innovation ranges from the difficult, indirect, and expensive to the impossible. We usually have to make educated guesses about counterfactual scenarios: we just do not know for sure what would have happened if a real-world IP regime had not existed or had existed in a different form.
In her working paper of July, 2010 titled Intellectual Property Rights and Innovation: Evidence from the Human Genome (available as NBER working paper no. 16213), Professor Heidi L. Williams, an economist at MIT, overcomes the inability of scientists to create an experimental control group by identifying a rare natural experiment—a situation in which the real world provides two similarly situated groups, one of which is subject to an IP regime and one of which is not. In Williams’ words, “[t]he contribution of this paper is to identify an empirical context in which there is variation in IP across a relatively large group of ex ante similar technologies, and to trace out the impacts of IP . . . .” (P. 1.) Continue reading "Of Gene Sequences and IP’s Ex Post Incentives: An Empirical Measurement of the Effect of “Celera’s IP”"
Jotwell is taking a short summer break.
Posting will resume on Tuesday, September 6, 2011.
See you then.
Wendy Wagner, Katherine Barnes & Lisa Peters, Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Emission Standards
, 63 Admin. L. Rev.
99 (2011), available at SSRN
Wendy Wagner, Katherine Barnes, and Lisa Peters provide a wealth of data and insights with respect to the rulemaking process in this well-researched and well-written article. They engaged in intensive empirical analysis of the ninety rulemakings in which EPA issued air toxic emission standards. For each of the rulemakings they studied three stages of the decision making process—pre-NPRM, notice and comment period, and period after issuance of a final rule.
I cannot do justice to the authors’ excellent discussion of their methodology and the implications of their findings. I will instead simply recite some of their most important findings in the hope that my summary of some of their findings will induce everyone to read this important article with care. Continue reading "What Actually Happens in a Rulemaking?"
In this comprehensive article, the authors address the effects of Congress’ reinstatement, on December 17, 2010, of the estate tax and the generation skipping transfer tax. The authors first analyze how the reinstatement presents certain election out and document construction problems, and then they propose disclaimers and family settlement agreements as possible solutions.
The authors have two election out problems: First, tax-sensitive language in documents may be difficult to interpret because estate or GST taxes may not have been applicable on the date of the decedent’s death in 2010–possibly even without regard to any retroactivity. (P. 592.) Second, the personal representative of the estate of a decedent who died in 2010 must decide whether to elect out of the estate tax regime (and therefore into the carryover basis regime for income tax purposes) or to allow the default estate tax regime to apply. (P. 592.) The tax results under both scenarios must be compared, including reviewing the “calculation of the net appreciation in each asset, the character of the gain on the sale of each asset, the tax rate applicable to the gain on the sale of each asset, when each asset is likely to be sold and whether tax benefits exist that might reduce the tax on such sales, and how the modified carryover basis rules will apply to these assets” as well as related factors such as passive losses and partnership interests. (P. 595.) Continue reading "Disclaimers and Family Settlement Agreements as Possible Solutions to Election Out and Document Construction Problems"
Dr. Christopher Decker and Professor George Yarrow are economists at the Regulatory Policy Institute, Oxford, who were commissioned to consider the “case for regulation” and the role of professions in the legal services market in the UK. Their report appears at a time when the professions in England and Wales are in the midst of a quiet revolution, precipitated by the Legal Services Act 2007 (LSA). The Act places a range of professional groups, from the mainstream solicitors and barristers to the more esoteric trade marks and patent agents, under the purview of the Legal Services Board (LSB), an “oversight regulator.” This means that the professions retain a large measure of regulatory control, over ethics and education for example, but that they, and the LSB, must pursue statutory objectives.
While much of the theory that Decker and Yarrow refer to is familiar to scholars of the legal professions, in Rick Abel’s work for example, it is valuable for scholars of professions and legal services to see the argument through the prism of another discipline. The report is accessible to those without an economics background and might therefore provide a better foundation for dialogue between lawyers, economists and others than presently exists. This potential to stimulate debate is not purely parochial. Although the report uses examples of the practices of the English professions, the general approach is an “in principle” analysis of the rationale for regulation. Such a study might undermine the basis of legal professionalism, but it might also doubt the rationale for regulation per se, even public regulation by an oversight regulator. Decker and Yarrow do not disappoint in this regard, but also point to the limits of economic analysis in answering the questions they were posed. Continue reading "How To Regulate the Legal Services Market? Starting From First Principles."
Works of pure theory in Anglophone European internet law scholarship are fairly rare, and those that exist often come from scholars whose background is in a field other than traditional law, e.g. sociology, politics or criminology. While some of this work is excellent, it may lack a full understanding both of the nuances of legal analysis and the realities of commercial legal culture. For all these reasons, it is to be warmly welcomed that in what one might call the second stage of his distinguished career, Chris Reed, one of Europe’s leading researchers into the more commercial and practical aspects of internet law, has decided to turn his years of experience in helping both draft and critique European internet and e-commerce laws towards theorising how to regulate for the on-line world, in the form of a series of pieces which so far include Taking Sides on Net Neutrality, The Law of Unintended Consequences–embedded models in IT regulation and more recently, How to Make Bad Law: Lessons from Cyberspace. The latest of these pieces (which are destined eventually to form a book on regulation, I believe) appeared in late 2010 and takes on the near cliché of internet law that “what is legal offline should also be legal online,” or more formally, the principle of equivalence. While it is something of a kneejerk assumption in many domains, notably freedom of speech, that this approach is axiomatically mandatory, Reed dissects the desirability, applicability and most interestingly perhaps, the failures of the principle in the context of the history of (mainly European) internet regulation.
Reed defines equivalence as a starting point as “an approach in which all laws and regulations should, so far as possible, be equivalent online and offline. In other words, the same legal principles should regulate an online technology activity as those which applied to the equivalent offline technology activity.” Reed’s first point is that this should not be confused with the similarly-popular notion of technology neutrality. “Technology neutrality addresses the choice between the available substantive rules which could be used to implement … legal principles,” while equivalence, in his view, is about choosing those legal principles for regulating the online world in the first place. Equivalence therefore takes precedence in the regulatory toolkit and is arguably the more important issue to get right. Reed also muses as to whether a distinction is needed between “technology indifference”–which is an “attempt … to define a rule in such a way that it applies equally well to the activity whatever technology is used to undertake it” and a concept he does not name but I will call technology non-discrimination which is “a legislative aim that the rules should not discriminate between technologies and should continue to apply effectively even if new technologies are developed.” A good example of problematic regulation which might have been elucidated by applying these concepts lies in the recent controversial redrafting of the part of the EU Privacy and Electronic Communications Directive dealing with cookies (art 5(3)), where despite frequent claims to technology-neutrality the results have been nothing of the kind either initially or after reform. Continue reading "Regulating Cyberspace: Can Online Ever Equal Offline?"
It may not be the most headline-grabbing issue on the Supreme Court’s docket. But it has occupied more of the Court’s attention during the past half-decade than abortion, affirmative action, the Commerce Clause, or the Second Amendment. It is 28 U.S.C § 1447(d)’s command that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” This apparent ban on appellate review has generated an awkward line of cases, beginning with Thermtron Products v. Hermansdorfer in the 1970s, which struggle to determine when § 1447(d) “means what it says.” In the Court’s most recent decisions on the issue, several Justices have penned separate opinions voicing their frustration with current doctrine. Enter Jim Pfander and his recent article Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court. Pfander expertly diagnoses what is wrong with the jurisprudence surrounding § 1447(d) and, more importantly, offers a new solution to this long-standing puzzle.
Here is the crux of the dilemma: the text of § 1447(d) forbids appellate review of a district court order remanding a case to state court. Period. Full stop. No exceptions. In Thermtron, however, the Court circumvented this ban on review by reading § 1447(d) as applying only to remands based on grounds specified in § 1447(c). The Thermtron exception is hard to justify as an interpretive matter given the text of § 1447(d). Perhaps more troublingly, it is functionally misguided. It means that § 1447(d) does forbid an appeal if the remand is based on a lack of federal subject-matter jurisdiction—a ground that is specified in § 1447(c)—even though the scope of federal subject-matter jurisdiction can be a very significant issue, both for the parties to a particular case and for our judicial system as a whole. Yet Thermtron permits review for issues of far less significance and impact—such as a district court’s discretionary decision whether to remand state law claims after all federal claims have been resolved—because such remands are not governed by § 1447(c). The problem has been compounded, as Pfander points out, by the Supreme Court’s holding in Quackenbush v. Allstate that a remand order was a “final decision” for purposes of 28 U.S.C. § 1291. While Thermtron contemplated that remand orders qualifying for its judicially-created exception to § 1447(d) would still have to meet the heightened showing required for a writ of mandamus, Quackenbush has been read to make such orders appealable as of right. Continue reading "A New Solution to an Old Problem: Section 1447(d) and Appellate Review of Remand Orders"
Mira Ganor, The Power to Issue Stock
(2011), available at SSRN
Every state corporation statute authorizes the board of directors to issue stock. While one could imagine arguments for allocating this authority to the shareholders, the board of directors is better positioned to respond quickly to financing needs or to provide stock as a motivation for employees. Nevertheless, whenever the board of directors is given an important power, we must be attentive to the potential for abuse. In her new article, The Power to Issue Stock, Mira Ganor reveals various ways in which directors may pursue their own interests at the expense of a majority of the shareholders or thwart the veto power of minority shareholders through the issuance of stock.
Stock issuances are important in Ganor’s account of corporate governance because of the possibility of voting dilution, which occurs when an existing shareholder owns a smaller ownership interest after a new stock issuance. For example, assume that an investor owned one million shares of common stock in Company A, equal to a 25% ownership interest (i.e., the investor owned one million of four million shares outstanding). If Company A subsequently proposed to sell another one million shares to a new investor, the existing investor would see her ownership interest decline from 25% to 20% (she would own one million of five million shares outstanding). Continue reading "Stock Issuances and Managerial Agency Costs"
What does sport have to do with jurisprudence? Not a great deal, one might think. To be sure, particular sports, like legal systems, are rule-governed practices. This commonality and the relative simplicity of sports makes them useful as a source of examples that might be deployed to explain more complex legal-theoretical ideas.
Philosophers of law and legal theorists commonly use sports examples in just this way. Most famously, H.L.A. Hart used examples from games and sport both in criticizing other views about the nature of law and in clarifying his own distinctive view. In his critique of Austin’s command theory of law, for example, Hart invoked the scoring rules of a game as he explained why nullification under the power-conferring rules common to modern legal systems cannot be assimilated to sanctions under duty-imposing rules. (H. L. A. Hart, The Concept of Law). And he adverted to chess and cricket to explain one of his most distinctive theses—that rules, and so law, have an “internal aspect.” Chess players, he observed, do not merely have “habits of moving the Queen in the same way,” which an external observer might record. In addition, “they have a reflective critical attitude to this pattern of behavior: they regard it as a standard for all who play the game.” Continue reading "Playing by the Rules"
David Doorey, Decentring Labor Law
(June 14, 2010), available on SSRN
There is a cadre of terrific Canadian labor and employment scholars, many of whom have received insufficient recognition in the U.S. As a group, these scholars bring interesting and sharp insights into the general problems of employment law not only in Canada but also around the world. They are much better versed in U.S. law than we generally are about Canadian law. Their insights are particularly useful for us since Canada and the U.S. share the basic “Wagner” model of union-management law. Among a long list of Canadian scholars, I want to focus on David Doorey, Professor of Labour and Employment Law, York University. His current piece on decentring workplace law is clever, bold, and interesting. He synthesizes a considerable range of theory, from the U.S. and elsewhere, to support a very provocative proposal.
The background for his article is the continuing decline of union membership which, with only a couple of exceptions–the Scandinavian countries and, curiously, China–is a worldwide phenomenon. With economic globalization reducing the significance of separate national economies and the laws of nation-states tied to the regulation of those economies, the decline should be no surprise because unionism and labor law are paradigmatically national. Other factors, especially the ideological rejection of unionization by management, also play an important role in the decline. There is, of course, a tremendous amount of interesting and valuable scholarship addressing the situation and frequently calling for reforms aimed at reversing that trend. The now failed Employee Free Choice Act (“EFCA”) was considered to be justified on the basis that it would help shift the momentum away from decline. The EFCA has been the subject of considerable scholarship, much of it aimed at evaluating its potential for turning momentum towards greater union density. (For what it is worth, my view is that EFCA would make only a marginal difference because, the decline in unionism being worldwide, it has to be based on much more than the weaknesses of the NLRA to protect the right of workers to organize.) Continue reading "New Governance, Decentring & Unionization as the Default Option"
William W. Van Alstyne, Clashing Visions of a “Living” Constitution
, CATO Supreme Court Review 2011
(Forthcoming Sept. 2011), available at SSRN
Can a constitution “live”? Is the alternative to a “living” constitution reinterpreted and modernized by judges a “dead” constitution hopelessly out of touch with modern realities? William Van Alstyne, in Clashing Visions of a “Living” Constitution critiques (nay, mocks) several schools of living constitutionalism and sets out what he believes is the one true path to a living constitution. This essay is lively, insightful, irreverent and makes an important, if not wholly novel, set of points. It reminds me anew why I have recommended Van Alstyne’s “critical guides” to Marbury and McCardle to Constitutional Law students for years.
The essay (originally a lecture) opens with musings on confirmation hearings for Supreme Court justices and the proper scope of judicial constitutional review. Acknowledging that there are many schools of constitutional interpretation, Van Alstyne looks at various schools associated with the notion that the United States Constitution is a “living” constitution. He examines non-interpretivists’ (non-original interpretivists’s? ) efforts to “free us from the despair of textual uncertainty” and “the tyranny of-and-the-futility-of endlessly-contestable history.” Continue reading "Cambian Rings of Constitutional Amendment"
In Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, authors Janet Halley (Harvard) and Kerry Rittich (Toronto) offer a compelling way to think about the doctrinal areas which for so many of us are handy ways of defining our area of scholarship. The problem is that these “areas” are often less than helpful when trying to define the legal context of equality problems, and they are a positive danger when we move on to consider law reform options. Halley and Rittich take on these problems as they relate to “family law”.
Let me start by saying that even on its own terms, this article is fundamentally about equality questions. Halley and Rittich are clear that family law is about “distributional outcomes” (P. 755) and that the legally constituted family is closely linked to market distributions, even if those links are often masked. They argue that the family should be recognized as an “economic unit” and not only as an “affective unit”. The authors encapsulate this idea in their use of the term, “economic family,” signaling that they would put “the family and the market, family law and contract, back into contiguity” (P. 758), resisting the claim that the “economic character of the family” has disappeared in modern and postmodern times. Key to this resistance is accepting that the household is (still) a critical economic unit. Continue reading "Tracing the Roots of Inequalities: Why Scholars Need to Widen their Nets"
L. Song Richardson
, Arrest Efficiency and the Fourth Amendment
, 95 Minn. L. Rev.
__ (forthcoming 2011), available at SSRN
He was a widely respected leader in his class, courted by some of Washington DC’s top law firms. Though a student, he already had a book of potential business top sports lawyers salivated over, plus a post working in the Senate for the summer. He was the kind of student who listened carefully when others spoke rather than speak often, but when he did speak people listened because the insights were often illuminating.
On the roadways, however, he was just another black man, driving as carefully as possible because he was a black man on the freeway. He was stopped anyway for unknown reasons, ordered out of the car, frisked like a criminal on the side of the road, and waved on his way when the roving search yielded nothing. He wondered what recourse he had to realize the protection of the criminal procedure rights we were studying, the standards that say you cannot be stopped without reasonable articulable suspicion of a crime, that you cannot be frisked without reasonable articulable suspicion that you pose a danger to officers. Continue reading "Subconscious Impact"
Is tax law universal, or does it vary according to the legal and general culture of the country in question? What happens when tax norms developed in one context are moved or “transplanted” into another? Two scholars, one writing about a small country and one about a very big one, have endeavored to provide an answer.
The small country project is by Assaf Likhovski and concerns the income tax in pre-State Israel (or if one prefers, Israel and Palestine), specifically, the era of the British Mandate (1923-48). During this period the British—who still controlled a substantial portion of the world’s land and population—imported an essentially uniform, “one size fits all” income tax code to Palestine and other colonial territories. But of course, it didn’t work out that way: the peculiarities of the Middle East, which ranged from unique or at least different business forms to what might be called a diffident attitude toward paying taxes, rendered the system quite different in practice than it would have been in Britain, India, or another location. Particularly interesting was the imposition (or more properly, the attempt to impose) a uniform system on the country’s Jewish and Arab populations: the Jews feared that their Western-style economic arrangements would provide a juicier revenue target than the Arabs’ more traditional (and often noncash) transactions, so that the tax issue became yet another source of distrust between the two communities. There is an irony here, in that the Jewish community’s superior tax-raising capacity was ultimately to prove an advantage in the 1948 and later wars with neighboring Arabs; but that is another story. Continue reading "Tax Law and Culture: Big Countries and One Small One"
Amnon Lehavi, Judicial Review of Judicial Lawmaking
, 96 Minn. L. Rev.
(forthcoming 2011), available at SSRN
To what extent is a court just another lawmaker in our governmental structure? Professor Amnon Lehavi argues that the U.S Supreme Court has given a surprising answer in a surprising place: Stop the Beach Renourishment Inc. v. Florida Dept. of Envtl. Protection. The question in Stop the Beach was whether a decision of the Florida Supreme Court altering state property law deprived property owners of their rights in violation of the Fifth and Fourteenth Amendments. The U.S. Supreme Court held that it did not, but four justices expressly recognized that a judicial decision could constitute an unconstitutional taking. Lehavi contends that the case is significant beyond its ramifications for constitutional property law: four justices would treat state courts as lawmakers, indistinguishable from legislatures in this context. As Justice Scalia wrote: “It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat . . . the particular state actor is irrelevent.”
Lehavi considers the implications of this view. For example, Lehavi asks, if state courts are lawmakers, are they entitled to the same sort of judicial deference as legislators and agencies? Specifically, should the U.S. Supreme Court engage in deferential review of their determinations rather than more aggressive de no review? If so, should the same doctrines apply or apply in the same manner? Lehavi observes many of those doctrines are adapted for legislatures or agencies, such as the regulatory taking doctrine. Consider Penn-Central’s three-prong test, which asks a reviewing court to consider: (1) the economic impact of the regulation on the claimant;” (2) “the extent to which the regulation has interfered with distinct investment-backed expectations;” and (3) the character of the governmental action.” Lehavi notes that the third prong is awkward. In some cases, the Court has examined whether the invasion is part of a broader governmental program adjusting benefits and burdens among citizens. But courts do not maintain such programs. Perhaps, then, substantive due process supplies the proper analysis, asking whether the invasion is effective at achieving some legislative public purpose. Courts have been understandably deferential to legislatures and judges on the means-ends connection. But, Lehavi inquires, should they maintain the same posture for state courts? Continue reading "The Judicial Playing Field: Courts as Lawmakers"
Among scholars who study the legal profession, perhaps no one else has travelled as far as Yves Dezalay and Bryant G. Garth. They have studied international commercial arbitration across continents, they have investigated the political struggles between lawyers and economists in four Latin American states, and now their new book, Asian Legal Revivals, covers the history of lawyers and the state in almost ten different Asian countries. No matter if you like their findings or not, we must admire the effort required to bring together such a large variety of national and historical contexts to develop a general theory of lawyers in relation to the market and the state.
The theoretical contribution of this book to the scholarship on lawyers and politics is significant. In the vast academic literature on the legal profession, the relationship between lawyers and the state has been, oddly, inadequately theorized despite many good efforts in this direction in the 1980-1990s. By this book and their previous study on Latin America, The Internationalization of Palace Wars, Dezalay and Garth have outlined a relatively coherent theory of lawyers and the state. Following Pierre Bourdieu, particularly his flexible and inclusive concept of capital, the authors argue that lawyers do not necessarily seek market monopoly or take political action based on their professional ideology, but form various types of relations with the state based on their social and legal capital–they could serve as clerks, mediators, or spokespersons in different political contexts. Continue reading "Art Collectors or Archeologists?"
Barbara Welke’s Law and Borders of Belonging in the Long Nineteenth Century United States provides an elegant synthesis of the existing literature on rights and citizenship while also delivering a challenging and original argument of its own. Welke manages this difficult feat by incorporating a wide range of scholarship, beyond the field of legal history, into her analysis. She then uses that historiographical base to recast the progressive narrative of legal change, which posits a steady extension of rights to previously excluded groups and a consequent expansion in the meaning and reach of citizenship. Instead, she argues that there was firm commitment to conceptions of rights and citizenship that privileged the status of white men at the expense of other, marginalized people. The book is part of the series, The Cambridge History of Law in America, edited by Christopher Tomlins and Michael Grossberg. One of the series’ goals is to provide an accessible introduction to the material, with an eye toward classroom use. Law and the Borders of Belonging will be a useful teaching tool because its narrative is so gracefully constructed. But it would be a shame to leave this book to students because it also makes such an important contribution to nineteenth-century legal history.
Law and the Borders of Belonging uncouples rights from citizenship. In so doing, Welke draws on recent scholarship in legal history. But her analysis moves in different directions because of her background in feminist theory, women’s history, and the literature on race, ethnicity, and disability. By separating rights and citizenship, Welke is distinguishing between the positive claims that individuals can make on the state through the legal system and the various demands that the state can make on individuals. Women in the nineteenth century, for instance, did not have the full array of individual rights even though they were citizens. For them and for other Americans who were not white and male, as Welke argues, citizenship implied only responsibilities, restrictions, and regulations. The acquisition of rights resulted not in citizenship, but in legal personhood. Citizenship, however, still gave meaning to legal personhood, because rights, alone, did not always guarantee the state’s protection or support. Continue reading "The Legal Borders of the United States"
Although this article appears to be about the permissibility of aggressive anticrime measures, it really concerns particularism in ethical theory.
Three strikes laws, zero tolerance policies, and the like have been criticized for violating nonconsequentialist restrictions on punishment. According to this criticism, when the state sentences a former felon to 25 years in prison for stealing three golf clubs, see Ewing v. California, it acts improperly because it imposes a sentence more severe than the defendant deserves for the crimes he has committed. That such a restriction on punishment exists, it is claimed, can be shown by considering telishment (short for “teleological punishment”), in which the government intentionally punishes someone it knows to be innocent because crime will thereby be prevented. Although telishment would, ex hypothesi, have good consequences, it is nevertheless wrong. And so–-proceeding according to what Brand-Ballard calls a generalization argument–-punishment under three strikes laws must also be wrong, for it shares all morally relevant intrinsic features with telishment. Both, after all, impose a quantum of undeserved harm. Continue reading "Particularism, Telishment, and Three Strikes Laws"
Tristin Green, The Future of Systemic Disparate Treatment Law
, 32 Berkeley J. of Employment & Labor Law
__ (forthcoming 2011), available on SSRN
On June 20, 2011, the Supreme Court issued a decision in what has been billed as the largest employment discrimination case in U.S. history: Wal-Mart v. Dukes. The case was a class action against Wal-Mart, the country’s largest private employer, for pay and promotion decisions that discriminated on the basis of sex, and the class consists of every woman who currently works for the company or who formerly did, going back to 1998. Estimates of the number of class members range from about 500,000 to 1.6 million. The numbers are what tended to make headlines, were to some extent the focus of Wal-Mart’s defense, and played a large role in the Court’s decision. But those numbers were driven in large part by the sheer size of the company. Some have suggested that Wal-Mart is arguing that it is “too big to sue,” the newest variation of “too big to fail.” To the extent that Wal-Mart’s size contributed to the Court’s conclusion that the causes of any injuries were too complex for those allegedly injured to constitute a class, the Court agreed.
What was at stake in the case was more than just the interests of the women or the interests of Wal-Mart. At stake was the future of class actions to redress harm from mass injuries and the future of systemic discrimination cases. That is why Tristin Green’s article, The Future of Systemic Disparate Treatment Law, 32 Berkeley Journal of Employment & Labor Law __ (forthcoming 2011), currently available on SSRN, is such a welcome addition to the discussion of the theory of systemic discrimination. Tristin, Noah Zatz, Richard Ford, Melissa Hart, and Michael Selmi will all contribute articles to a symposium issue on the subject, but Tristin’s was the first article to be made publicly available. Continue reading "Context Matters in Systemic Disparate Treatment Theory"
Perhaps Herbert Wechsler needs no introduction, no expression of appreciation. He did, after all, leave an indelible mark on three bodies of law: criminal law, constitutional law, and the law of federal jurisdiction. He served as the third director of the American Law Institute, shepherding an important collection of Restatements through the process of drafting and approval. Also in his director’s role, he played a central role in the ALI Study of the Division of Jurisdiction Between State and Federal Courts (1969), which occupies a place on my federal courts bookshelf alongside the 1953 casebook Wechsler wrote with Henry Hart.
But despite his many contributions to legal scholarship, Wechsler’s reputation these days might appear to depend on two articles: 1959’s Toward Neutral Principles of Constitutional Law and 1953’s The Political Safeguards of Federalism. The first has suffered from its criticism of the Supreme Court’s decision in Brown v. Board of Education, which comes as close as one can these days to academic apostasy. The second contributed an enduring idea to the canon of constitutional law, but one that may have fallen temporarily from grace with the rise of the judicially enforced federalism of the Rehnquist Court.
I want to focus instead on Wechsler’s 1948 article, Federal Jurisdiction and the Revision of the Judicial Code. I find myself returning to the article for a number of reasons. To begin with, the choices of the 1948 revisers and codifiers remain very much a part of our jurisdictional law over sixty years on, as do Wechsler’s criticisms of those choices. In addition, the article has the remarkable Wechslerian ability to identify doctrinal and statutory rough patches and foresee new departures in jurisdictional law. Indeed, a surprising number of Wechsler’s suggestions have been written into the law of federal jurisdiction, either by Congress or the Supreme Court, thus underscoring the power of scholarship as a tool of effective law reform. Wechsler managed to accomplish all this in thirty pages, deploying a gift for concision we should all envy. Continue reading "Legal Scholarship and Law Reform"
Robert Cooter and Neil Siegel’s Collective Action Federalism is probably the most important academic article on constitutional federalism in several years. Cooter is one of the world’s leading law and economics scholars. Unfortunately, his work has not gotten the attention it deserves from constitutional theorists. Siegel is a leading constitutional law scholar in his own right.
In Collective Action Federalism, Cooter and Siegel argue that the congressional powers enumerated in Article I, Section 8 of the Constitution should be interpreted in light of the goal of giving Congress the authority it needs to address collective action problems among the states. A collective action problem arises when members of a group want a good, but have little or no incentive to contribute to its production, because they can instead try to free ride on the efforts of others. This is likely to occur in cases where the good in question is a “public good” for the group in question, one for which there is no way to prevent group members from consuming it even if they have not contributed to its provision. Continue reading "Federalism and Collective Action"
Thomas P. Gallanis, The Flexible Family in Three Dimensions
, 28 Law & Ineq
. 291 (2010), available on SSRN
No small amount of ink has been spilled on the problems created by the clash between law’s dated vision of the traditional family and the social realities of the diverse and complicated modern family. This piece, written for a University of Minnesota symposium, Family Values: Law and the Modern American Family, is a refreshingly concise essay that makes normative claims about how law should respond to most significant change in the family form: the dramatic rise in nonmarital cohabitation among not only heterosexual couples, but also couples of the same-sex and adults who share a care, but not a romantic, bond. Gallanis answers the question “to what extent should there be room in our law for a family outside marriage” with three claims: (1) non-marital cohabitation merits recognition and support in law; (2) given American mobility, relationship statuses should be universally portable across state lines; and (3) the law should do more to protect family units–however constituted–against third parties, as opposed to worrying only about their obligations to one another. It is this last point that gives rise to the third dimension alluded to in the title.
Gallanis begins by traversing some familiar ground on the treatment of non-marital cohabitants and same-sex couples. Although courts began in the 1970s to recognize contractual economic claims by one cohabitant against the other, those “Marvin rights” have turned out to provide very anemic protection to the weaker or more dependent party. Slightly later, some states moved to create quasi-marital, status-based rights for cohabitants, a shift endorsed by the American Law Institute’s Principles of the Law of Family Dissolution. And later still, same-sex couples got in on the action, earning status-based rights in various American and foreign jurisdictions, with great variation by jurisdiction in the particular status available and the rights and obligations accompanying it. Continue reading "The Family as an Economic Unit"
Today we inaugurate a new Jotwell section on Equality Law, edited by Dean Kim Brooks of the Dalhousie University – Schulich School of Law and Professor Sonia Lawrence, Director, Institute for Feminist Legal Studies York University – Osgoode Hall Law School. Together they have recruited a stellar team of Contributing Editors.
The first posting in the Equality section is Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System by Dean Kim Brooks.
We intend to continue to add other new sections in the coming months. Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.
Long overdue, in 2010 Canada ratified the United Nations Convention on the Rights of Persons with Disabilities. (The United States has yet to ratify the Convention.) While countries can ratify conventions at the international level, it is often the case that only in translation to our domestic, sometimes even local, contexts do we see the real effects of our commitments.
Judge Anne Derrick’s piece, a report on the death of Howard Hyde ordered by Nova Scotia’s Minister of Justice, pushes at the boundaries of what most of us would consider scholarship; yet, it is the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months. It provides a marvellous illustration of the values reflected in the Convention played out against one very specific set of facts. Continue reading "Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System"
In her groundbreaking book, Danielle McGuire chronicles an untold story of how criminal investigations and prosecutions in rape cases helped to ignite and shape the civil rights movement. Contrary to the now familiar stories of cases like the Scottsboro boys or Emmet Till—cases in which the law failed to protect the lives of black men in courts and in their communities, McGuire writes about the prosecution of rape and sexual assault committed against black women. As a historian, McGuire focuses on two important aspects of these criminal cases. First, the cases served as bellwethers for the social and political rights of black women. Second, they involved some of the earliest attempts to organize and mobilize churches and political groups in the fight for civil rights.
These cases are valuable to criminal law scholars as well. They expose the deep connection between civil and human rights for women, on the one hand, and for the criminal law’s capacity to protect their bodily integrity, on the other. In other words, one important test of freedom for women everywhere—and in this case for black women—is the ability to walk “at the dark of end of the street” under protection of law. The notion that civil rights for women were connected to the criminal law’s protection of women’s bodies was understood early by black women activists. McGuire makes the point that the struggle to bring rape and sexual assault cases to justice has been an important, if underexplored, aspect of the civil rights movement. Continue reading "Rape Prosecutions and the Civil Rights Movement"
Some books are years ahead of their time, while others are stale before they are printed. The Trouble with Billionaires, which was published last September, was almost perfectly timed, hitting the bookshelves just as we became aware of the increasing influence of a handful of billionaires on the political system in the United States. Although the authors are Canadian (McQuaig a journalist, and Brooks one of the top tax academics in the world), they perfectly captured the current political moment in the U.S. The super-wealthy now truly run the show, and they are less shy than ever about doing so.
Given the time delays in publishing, the substantive work on this book was completed months before it had become clear that the Koch brothers, the billionaire brothers who made their fortune with bare-knuckled tactics in the coal industry, had engaged in a full-on effort – successful, as it turned out – to buy the U.S. mid-term elections. Indeed, even though the book is based on careful research about political influence by billionaires, the Kochs’ names do not even appear in the book’s index. The book’s title, in retrospect, could have been: The Trouble With Billionaires is That Too Many of Them Act Like the Koch Brothers. Continue reading "Should We Tax the Rich, or Leave Them Alone?"
So-called nonlegislative rules, rules adopted as interpretative rules or statements of policy without notice and comment, have posed problems for courts and scholars for a number of years. In addition to myself, in recent years professors Robert Anthony, Peter Strauss, Elizabeth Magill, Nina Mendelson, Donald Elliott, Jacob Gersen, Ronald Levin, and John Manning have all attempted to bring coherence to the questions raised by nonlegislative rules.
Everyone agrees that agencies must be able to issue certain interpretations and policy statements, generically guidances, without having to follow the notice-and-comment process applicable to legislative rules. On the other hand, everyone also agrees that agencies can abuse the ability to avoid notice and comment rulemaking through invocation of the exceptions for “interpretative rules” and “general statements of policy.” How to police the line between those rules requiring notice and comment and those that do not is what has stymied courts and commentators. Now there are two more attempts in this regard, and while both are worthwhile additions to the field, Professor Seidenfeld seems to this author to come closest to hitting the mark. Continue reading "The Dilemma of Nonlegislative Rules"
Here is one way of describing the ethical challenge facing contemporary lawyers:
Traditionally, professions transcended the seller-customer relation because they met the challenge of moral difficulties, including evil, and emerged not only unscathed but triumphant. Today, legal professionals, fearing they cannot resist, let alone control, the moral pollution around them, retreat into technical virtuosity and specialized expertise. Cleanliness has become the aspiration of the profession. Lawyers seek purity by defining their cases and their work solely in terms of the abstract norms of professional knowledge. At the same time, they argue that to do anything else is dangerous and potentially immoral. To be anything other than a supplier of technical information is to dominate clients. At its best, it is paternalistic. At worst, it is power mongering. The claim is that there is no ethical way for the lawyer to meet moral difficulties. (PP. 158-9.)
It is as apposite a criticism of corporate lawyers-and their abdication from ethical commitment-today as it was in 1984 when it was first written. The paragraph is found near the end of Professor Rob Rosen’s book on lawyers in corporate decision-making that has recently appeared as part of an initiative to publish “influential” unpublished doctoral theses-in this case from UC Berkeley’s sociology department. What an excellent choice for such a series! Although Rosen has drawn on and published parts of the thesis in journal articles, it is a real treat to have the whole thesis now readily available, and with a Foreword by Professor Sung Hui Kim. Continue reading "A Newly Published Classic on the Ethics and Sociology of Corporate Lawyers’ Work"
Tomiko Brown-Nagin’s Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement is an exceptional work of legal history. It is at once emotionally moving, richly detailed, and consistently insightful in its exploration of the varieties of ways in which law and social activism intersect. In this “ground-level view of legal history,” a diverse collection of black activists in Atlanta—lawyers and non-lawyers, elites and non-elites, men and women, young and old—take center stage. Brown-Nagin carefully chronicles the experiences of these local people, showing how they struggled not only with those who sought to defend Jim Crow, but also oftentimes with each another. At the same time, Courage to Dissent connects the local story to developments that swept across the national legal and constitutional landscape during the civil rights era. One of Brown-Nagin’s great accomplishments in this book is to convey the subtleties of the shifting tensions and alliances within black Atlanta’s activist community between the 1940s and 1970s, to connect this local story to the national scene, and to do all this in a narrative that is engaging and powerful.
In previously published articles, Brown-Nagin has made important contributions to our understanding of the dynamics of civil rights activism and litigation. The central theme of much of this work has been an exploration of the persistent yet constantly evolving divisions within the African American community on civil rights goals and tactics, with a particular emphasis on the role of lawyers and litigation in creating and challenging these intra-racial divisions. These articles not only explode simplistic assumptions that there was a monolithic African American community united behind the NAACP’s Legal Defense Fund (LDF) as it pursued its historic litigation battle against Jim Crow, they also identified a more complex matrix of fissures and tensions within black society than had previously been recognized. Continue reading "The Pragmatic Civil Rights Movement in Atlanta"
Sandra F. Sperino, Rethinking Discrimination Law
(forthcoming Mich. L. Rev. 2011), available on SSRN
Employment discrimination law is a big, confusing mess. That probably doesn’t come as a shock to most readers of this site. The discrimination literature is filled with attempts to vilify, clarify, or unify the existing law in this area. In her forthcoming article, Rethinking Employment Discrimination Law, Professor Sandra F. Sperino displays little interest in doing either of the latter. But she’s also clearly interested in doing more than just vilifying the existing state of affairs.
Sperino begins by noting the development of the familiar frameworks or rubrics that courts use to evaluate discrimination claims. Of course, we are talking about McDonnell Douglas, Griggs, et al. She argues that “discrimination analysis has been reduced to a rote sorting process,” with the result being that “the key question in modern discrimination cases is often whether the plaintiff can cram his or her facts into a recognized structure and not whether the facts establish discrimination.” (P. 2.) This approach raises at least two problems. First, it results in a huge expenditure of (arguably wasted) time and effort on the part of judges, lawyers, and litigants. Second – and the problem Sperino primarily focuses on – is that the approach results in courts failing to recognize or even consider new theories of discrimination. In other words, by focusing so heavily on the frameworks themselves, courts have lost sight of what discrimination law is supposed to be about and what the frameworks were theoretically designed to accomplish. Continue reading "Rethinking the Giant Mess that is Employment Discrimination Law"
I. Bennett Capers, Real Rape Too
, 99 Calif. L. Rev.
(forthcoming, 2011), available at SSRN
I had just finished teaching the rape unit to my first year criminal law class when my colleague Rachel Barkow brought I. Bennett Capers’ Real Rape Too to my attention. I know that opinions about whether and how to teach rape vary dramatically amongst faculty members, but for several reasons I have always been committed to teaching it and to encouraging candid classroom discussions. However, one of the interesting things about teaching a topic about which social conventions are still in flux is that increasingly I find myself unintentionally steering the class to the debates of my own youth. Having graduated in the early to mid-nineties, I came of age in the twilight of “no means no” and Take Back the Night. Date rape had gained recognition as “real rape,” but “roofies” were sufficiently unfamiliar that President Clinton had not yet signed the first federal date rape drug law. Understandings about sexuality, too, were still evolving. TV’s “Friends” was considered a pathbreaking show because it depicted a group of male and female friends living together and hanging out in a (mostly platonic) way that felt very familiar to my generation but at times baffled our parents. Gay pride was a common feature on campuses, but few of my peers had been openly out in high school and a “don’t ask, don’t tell” military policy was still considered progressive. And when Ellen DeGeneres came out on her show in 1997, it was still a big media event.
Of course, the students I teach now are already of a different era. They grew up hearing public discussions about the President receiving oral sex from an intern in the oval office, learned that celebrity can be reached by the “leak” of a sex tape, and laughed at bawdy gay sex jokes on “Will and Grace.” They can have “it’s complicated” Facebook statuses, personal experience with “sexting,” and be active in gay marriage debates. And it doesn’t stop there: in the coming years, I’ll encounter a generation that as children flipped through Ellen and Portia’s beautiful wedding photos on the cover of People magazine, heard Senator Scott Brown publicly reveal his childhood sexual abuse, watched Kurt and Blaine’s big, very real kiss on “Glee,” and, if novelist Gary Shteyngart is to be believed, unselfconsciously wear transparent pants. Continue reading "Rethinking Rape"
James Edelman, When Do Fiduciary Duties Arise?
, 126 Law Q. Rev.
302 (2010), available at SSRN
Observers with a transatlantic lens will readily notice that law professors in England take legal doctrine seriously. At the elite law faculties in Cambridge, Oxford, and London, the sophisticated study of doctrine thrives and is highly respected. The contrast with the modern legal academy in the United States is striking. For example, how many U.S. law professors write or teach in the field of restitution? The American Law Institute has just completed a remarkable Restatement (Third) of the Law of Restitution and Unjust Enrichment, yet the subject is largely, though not entirely, absent from our classrooms and student-edited law reviews. And restitution is not the only example. Consider the trenchant observations of Professor John Langbein:
Legal doctrinal writing [in the United States has]… declined precipitously. A good way to see what has happened is simply to compare the law reviews for then and now. I recently had occasion to check something in the 1967-1968 Yale Law Journal, where I noticed a three-part article on federal tax liens. I think you’d probably have to establish your own law review today in order to publish a three-part article on tax liens. The current diet in the leading journals is mostly high falutin’ constitutional law and theory, gender and racial issues, and law-and-economics. Doctrinal analysis is disfavored, and a good rule of thumb is that the ‘better’ the journal the less doctrinal scholarship it will publish.
A fascinating English study of doctrine recently crossed my desk: James Edelman’s article on “When Do Fiduciary Duties Arise?” It appeared in the prestigious and peer-edited Law Quarterly Review. The author teaches at Oxford, where he is Professor of the Law of Obligations. (If only donors to U.S. law schools would endow such chairs!) Continue reading "Fiduciary Obligations: Why and When?"
Derek E. Bambauer, Conundrum
, 96 Minn. L. Rev.
____ (forthcoming 2012), available at SSRN
It is rare to find satisfying cybersecurity scholarship. This is not the fault of the talented scholars who have written in this field. I am a fan of the work of many who have tried to lead us to legal and geopolitical solutions to the problems of viruses, worms, botnets, cyberwar, and cyberterrorism. But these individuals have had their considerable talents stymied by cybersecurity’s fundamental knowledge problems. To make a useful contribution, an author must understand technical concepts famous for their complexity, from TCP/IP to BGP, and be able to untangle complex relationships like the ones between the FBI and NSA and the United States and China. Even worse, cybersecurity scholars can never know whether they have the details right, because these topics are shrouded in layers of official and de facto secrecy.
For these reasons, I have never felt entirely satisfied by a single work about cybersecurity, at least not until now. Derek Bambauer has written a fine article about this topic entitled Conundrum, available on SSRN and forthcoming in the Minnesota Law Review. This useful article points the way to a more interesting and more useful new way forward for cybersecurity scholarship and discourse. Continue reading "Cybersecurity through Information Theory"
David Fagundes, Talk Derby to Me: Emergent Intellectual Property Norms Governing Roller Derby Pseudonyms
(forthcoming Tex. L. Rev.
), available at SSRN
The orthodox justification for patent and copyright laws, at least in the United States, is utilitarian: that is, both sets of legal rules are premised on the theory that only by rewarding creators with special property rights can we ensure that creations get created.
Viewed in the abstract, who could argue otherwise? Both technological innovations and artistic works are often difficult to create but easy to copy. Absent strong property rights, copyists will free ride on the efforts of creators. This, in turn, discourages investment in new inventions and creations. In short, copying stifles innovation – and therefore innovation requires legal intervention in the form of property rights. Right? Continue reading "What Can Roller Derby Girls Teach Us About IP Law? (Answer: More Than You Think)"
Jeffrey A. Segal, Chad Westerland & Stefanie A. Lindquist, Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model
, 55 Am. J. of Poli. Sci. 89
For decades now, scholars have debated whether the Supreme Court takes into account the preferences and likely action of the contemporaneous Congress when it interprets federal statutes. Forcefully represented by Jeffrey A. Segal & Harold J. Spaeth (2002), attitudinalists argue that the Justices vote on the basis of their ideological attitudes vis-à-vis the facts of cases. Period. As they famously declared, “Rehnquist voted the way he does because he was extremely conservative; Marshall voted the way he did because he was extremely liberal.” Congressional preferences have little role to play in this analysis (and besides, as Segal  demonstrated, the legislative process almost never constrains the Justices from voting sincerely). Spiller (with various co-authors), Knight, and I have taken exception to this account (e.g., Bergara, Richman & Spiller 2003; Gely & Spiller 1990; Spiller & Gely 1992; Epstein & Knight 1998). To us, policy-seeking Justices must engage in “dynamic” statutory interpretation (Eskridge 1991). If they do not, they run the risk of Congress overriding their decisions—in which case their least favored interpretation may become law.
Debates over the nature of statutory interpretation will inevitably continue. Where less controversy exists is over constitutional interpretation. Many scholars argue that the Supreme Court need not pay too much attention to Congress when it interprets the Constitution because (1) Congress can’t override its constitutional decisions by a simple majority and (2) other weapons to attack the Court (e.g., jurisdiction stripping, impeachment, budget reductions) are almost never deployed. But ”many” is not all. Meernik & Ignagni (1997), for example, partially refute (1). Their data show that while the Court may say that Congress can’t overturn constitutional decisions, Congress isn’t listening. Between 1954 and 1990, it overturned about forty constitutional decisions by statute. As for (2), Knight, Martin, and I (2001) have made the case that Congress almost never needs to punish the Court precisely because the Justices attend to congressional preferences and interpret accordingly. Continue reading "Congress, the Supreme Court, and Constitutional Interpretation"
Ellen Aprill, Regulating the Political Speech of Noncharitable Exempt Organizations After
Citizens United, Loyola-LA Legal Studies Paper No. 2010-57 (2010), available at SSRN
Tax Law and Election Law are now unlikely bedfellows. Political campaigning is often conducted through tax-exempt entities, and the tax code has become an important mechanism for regulating political campaign entities. Ellen Aprill, in her recent article entitled Regulating the Political Speech of Noncharitable Exempt Organizations After Citizens United, explores the constitutionality of regulating tax-exempt organizations post the Supreme Court’s recent decision in Citizens United, which overturned existing rules prohibiting corporations from making contributions to political campaigns. Aprill points out that dicta in Citizens United could provide justification for overturning some of the provisions regulating tax-exempt entities and their involvement in political campaigns. In this piece, Aprill concludes that those provisions are constitutional, and suggests some further regulation that would strengthen some existing weakness in the current regulatory scheme.
Aprill starts with a discussion of the current regulatory framework that applies to tax-exempt organizations. In short, the Code provides certain limitations on the campaign and lobbying activities of tax-exempt organizations. Courts and scholars have generally justified these regulations based on the notion that an entity was not entitled to tax-exempt status and that Congress therefore had the power to define the contours of the tax-exemption. Thus, 501(c)(3) organizations (mainly charities and educational institutions) can be prohibited from intervening in a political campaign, 501(c)(4) social welfare organizations must have social welfare as their tax-exempt purpose, and 527 political organizations can be required to disclose contributions and expenditures. While some scholars have questioned these regulations, I, and others, and in my view the Supreme Court, have upheld these types of regulations. Language in Citizens United indicating that the Congress cannot condition corporate status on a prohibition on campaign contributions by corporations calls into question the constitutionality of the restrictions on tax-exempt organizations. If Congress cannot condition corporate status on a corporation’s agreement not to make political contributions, then can Congress place restrictions on the political activities of tax-exempt organizations as a condition of their qualifying for exempt status. Continue reading "The Constitutionality of Campaign Restrictions on Non-Profit Organizations after Citizens United"
Because books chapters tend to get less exposure, scholars and policymakers might easily miss this provocative revisitation of the substance-procedure distinction in criminal cases. Don Dripps begins his new look at this issue by recasting the traditional procedural dyad—usually dubbed inquisitorialism and adversarialism—into three distinct categories—rationalist, pluralist and reductionist. For Dripps, rationalism, which comes closest to the usual view of the European continent’s inquisitorial process, is “the rational discovery of the historical facts and the logical application of the substantive law to the facts so found.” Pluralism, more closely associated with the Anglo-American adversarial system, assumes that rationalism is just one of many values the criminal justice system might hope to achieve and generally not even the most important. Reductionism is the idea that “the substance-procedure distinction is illusory” because the applicable procedural structure allows decision-makers to ignore or at least minimize the influence of offense definitions and sentencing rules. (Pp. 410-11).
Using these categories Dripps examines the oft-discussed phenomenon of convergence, the fact that criminal systems around the world are slowly moving toward one another, with European systems in particular increasing lay participation and the use of exclusionary rules. From Dripps’ theoretical perspective, that movement is not surprising; rationalism and pluralism, he says, are much more compatible than is commonly thought. That is because either type of system will depart from a pure truth-finding mission if that mission “conflicts with the legality principle’s prohibition of extra-judicial institutional violence” or “conflicts with an extrinsic value that is very important and can be accommodated with minor damage to material proof.” (Pp. 422-23). Under the first exception, even the privilege against self-incrimination can be accepted by a rationalist to the extent it is understood as a means of ensuring that coercive interrogation practices do not become the principal means of gathering evidence. Other evidentiary limitations—the journalist privilege, the ability of witnesses to claim a right to silence, the courts’ authority to exclude an alleged sex offense victim’s sexual history—all protect important interests, usually without preventing the state or the defense from getting at the truth in some other way, and thus might be acceptable to rationalists, as well as pluralists, under the second exception. At the same time, pluralism’s commitment to all-lay decision-makers does not clearly undermine the search for truth. And its willingness to exclude illegally seized evidence, which does compromise that search, is counter-balanced by the pervasiveness of plea bargaining, which is in part the result of exclusionary pressures and features an inquisitorial bureaucrat (the prosecutor) who is only rarely subject to an“appeal” (to the jury), thus providing further evidence of convergence. Continue reading "Reducing Reductionism"
How do we structure an agency to be independent? Not surprisingly, the answer to that question depends on what we want the agency to be independent from. The traditional legal view, exemplified most recently by the Supreme Court’s decision in Free Enterprise Fund v. PCAOB, is that Congress intends independent agencies to be independent of the President and it achieves this goal primarily by imposing limiting the President’s power of removal. Not so fast, say Rachel Barkow, Lisa Bressman, and Robert Thompson. In two separate recent articles—one written before the Court handed down its decision and one after—these scholars argue that agency independence means both more and less than independence from the President.
Barkow begins her article by arguing that what often has motivated creation of independent agencies is not presidential insulation but fear of agency capture, which she defines as the desire to protect an agency from one-sided political pressure from the well-financed industry interests that the agency regulates. Barkow then assesses how well traditional indicia of independence—such as removal, multimember heads, bipartisan requirements, and exemption from OIRA regulatory review—help to limit capture. She concludes that these features provide important insulation but are often not sufficient to create an adequate buffer against one-sided interest group pressure. Instead, Barkow emphasizes the value of other structural mechanisms that have received less attention in discussions of agency independence: guaranteed agency funding, substantive expertise requirements and revolving door limits, relationships with other agencies and the states, and an agency’s ability to independently gather and disseminate information, provide congressional testimony, and represent itself in court. According to Barkow, these insulating features may be particularly helpful in equalizing the pressure that interest groups can otherwise bring to bear. Continue reading "Designing Agency Independence"
As an ethnographer I subscribe to Everett Hughes’s view:
I am suspicious of any method said to be the one and only. But among the methods I would recommend is the intensive, penetrating look with an imagination as lively and as sociological as it can be made. One of my basic assumptions is that if one quite clearly sees something happen once, it is almost certain to have happened again and again. The burden of proof is on those who claim a thing once seen is an exception; if they look hard, they may find it everywhere, although with some interesting differences in each case.
It is ethnography that enables us to go inside the black box. It is surprising then that the world of law is often neglected in the ethnographic milieu. Anthropologists engaged with it while studying kinship and exchange systems, seeming to take Durkheim’s idea that contract was at the base of the social division of labor. Yet one of the central features of the law is the court which is an alienating environment. Continue reading "The Micro-Sociology of Lawyers’ Actions"
This month, I would like to draw legal historians’ attention to an intriguing book, the late Cornelia Vismann’s Files: Law and Media Technology. Vismann (1961 – 2010) was a German legal historian and media theorist whose work needs, in my view, to be far better known among American legal scholars. I had the privilege of meeting Vismann once, years ago, at a conference in Cleveland. It was hard not to be impressed by her brilliance.
At its most basic, Files provides a history of, well, files: those ubiquitous, daunting, overwhelming, often crushingly tedious accompanists of law. Fiction has concerned itself occasionally with files—one thinks of famous works by Kafka and Melville—but academics (especially legal academics) have not often done so. We think of law in all kinds of ways—as a system of ideas, as a form of politics, as a means of exercising power, as a way of shaping social practice, as the troubled realization of justice—but not enough in terms of its materiality, its existence as sheaves of papers inserted into folders, as a forest of folders. And yet, for much of its history, law has been unimaginable without files of one kind or another. Continue reading "Law’s Materials"
In this brief companion piece to his longer work, “The Correspondence of Contract and Promise,” Jody Kraus displays how a “personal sovereignty” account of individual autonomy can explain the ability of individuals to impose moral obligations on themselves.
Contract Theory has become increasingly focused on the related issues of the philosophical foundations of promising, and the relationship between promise and contract. As Kraus points out in his longer Columbia Law Review piece (“Correspondence”), one cannot reach any conclusions about whether contract law deviates from the morality of promising until one determines the source and extent of the moral obligation of promising.
One view in the area has been that the normative force of promises comes from the social practices and conventions which a community established to make an act of promising sufficient to impose an obligation on the promisor. Kraus notes that Joseph Raz appears to argue that individuals have the power to create normative obligations through promising, because it would be valuable for them to be able to do so. (128) As Kraus discusses in “Personal Sovereignty,” views like these have elicited the skeptical response that one cannot simply create a moral obligation out of thin air. For these skeptics, neither the presence of a social practice or convention nor the claim that the ability to be able to bind oneself would be a good thing, could be sufficient to allow individuals to create new obligations in this way. The skeptics continue, whether a promise creates an obligation depends on some other more basic axiom of moral philosophy (e.g., for the consequentialist, whether keeping this promise will increase overall social utility). Continue reading "Creating Norms"
David J. Doorey, In Defense of Transnational Domestic Labor Regulation
, 43 Vand. J. Transnat’l L.
953 (2010), available at SSRN.
In his new paper, In Defense of Transnational Domestic Labor Regulation, Professor David Doorey has written a meticulously footnoted and researched article on an important issue that is increasingly facing modern democratic economies: to what extent should such countries seek to use their influence to improve labor practices in economically-developing countries? As Doorey explains, the answer is not as simple as merely deciding you want a labor side agreement to the latest free trade agreement. No, in addition to more formal legislative enactments, Doorey thoroughly explains the developing trend of using techniques which exist outside of formal state action, but nevertheless serve to influence and regulate working conditions and employer-employee relationships in third-world countries. Examples of this “de-centered legal orientation” range from nongovernmental organizations (NGOs) monitoring and investigating multi-national corporations (MNCs), industry-led initiatives seeking to eliminate sweatshops, and consumer boycotts of MNCs that employ abusive labor practices. Doorey explains that these types of non-state activities are here to stay and the central issue is whether these informal practices can be put to good use to advance progressive labor policies in third-world countries.
The topic is complex and Doorey should be congratulated for bringing his impressive transnational labor law knowledge to bear on this area of law. It is certainly a must-read paper for anyone who is seriously engaged with workplace issues in the global economy. For instance, Doorey exhaustively reviews the literature in favor of, and against, using legislation that harnesses the power of these more informal practices to push foreign third-world countries to develop more worker-friendly labor policy in their countries. Nevertheless, one is left with at least two compelling questions after reading this thoughtful paper: (1) Will the more informal, new governance-influenced practices which Doorey seeks to harness really lead to the necessary workplace changes that workers’ rights advocates seek in developing countries?; and (2) Given the troubling labor situation in “developed” countries, should such countries not focus more on their own shortcomings when it comes to workers’ rights in order to gain more credibility with nations around the world? Continue reading "New Governance of the Transnational Variety: Can Transnational Domestic Labor Regulation Harness the Power of Private Legal Regulation?"
Palma Joy Strand, Inheriting Inequality: Wealth, Race and the Laws of Succession
, 89 Oregon L. Rev.
453 (2010), available at SSRN
In her recent article, Inheriting Inequality: Wealth, Race and the Laws of Succession, Palma Joy Strand unpacks the connection between social mobility and inherited wealth. She situates this discussion within the broader picture of the increasing gap between rich and poor in the United States. Strand isolates the role of race in that trend and she argues that the transmission of inherited wealth, as much if not more than income levels, is a dominant predictor of whether a family will move between classes in American society. Her goal is to develop a theory of the relationship between inheritance and the reproduction of our economic structure. It is an ambitious goal and Strand makes substantial steps toward it in this article.
Strand first presents the data on the increasing inequality of overall wealth accumulation in this country, noting the distinction between “income” and “wealth.” She defines the former as the inflow of resources over time offset by outflows to cover expenses and the latter as accumulated assets most often accrued within the family. Strand cites sociologist Seymour Spilerman for the proposition that “even modest levels of wealth have the ability to “cushion” families, particularly low-income families from economic shocks such as illness or job loss” and that wealth levels are correlated with educational achievement and well-being. With this data, Strand lays the foundation for her argument that we must reform inheritance laws because they have a disparately negative impact on the accumulation of wealth in certain kinds of families. Continue reading "The Impact of Race and Inherited Wealth on Social Mobility"
Donald C. Langevoort, Chasing the Greased Pig Down Wall Street: A Gatekeeper’s Guide to the Psychology, Culture and Ethics of Financial Risk-taking
, Cornell L. Rev
. (forthcoming), available at SSRN.
Donald Langevoort demonstrates, again, his ability not only to do behavioral economics but also to reframe it by placing actors in organizational contexts and relations. Behavioral economics, sharing economics’ methodological individualism, analyzes biases and cognitive heuristics in regards to individual risk taking. More broadly, social psychology investigates decision effects that result from affects, visceral and cultural factors, as well as pressures toward or against groups and authority. For example, Solomon Asch emphasized that people make decisions in public differently than they would in private, based on their impressions of others, and seeking legitimacy. Langevoort presents research that builds on Asch, for example the finding that in the presence of an audience, facing rivals, with time pressure to make a mark, individual motivation may shift from goal attainment to an obsession with winning at all costs. Such work not only uncovers other sources of bias, but also it reframes the subject as decision-making rather than only risk-taking. In “the ‘competitive arousal’ model of decision making,” the actor doesn’t engage in risk analysis, rather other motivations and models engage the actor. For some it is Tversky or Asch. Langevoort learns and masters work in both traditions, and more.
Langevoort’s subjects are the decisions that led to the Global Financial Crisis (GFC) and what gatekeepers need to learn from it. A principal-agent approach to the GFC demands explaining excessive risk-taking by theoretically risk-averse employees (invested in and frightened of losing their jobs). Although he has proffered other explanations, in this article, Langevoort focuses on the firm’s shaping of actor’s understandings and motivations. A principal-agent approach normally addresses the design of appropriate contracts, incentives, compensation and monitoring systems. In this article, Langevoort focuses on understanding the firm’s organizational culture. Continue reading "Inviting both Amos Tversky and Solomon Asch: It’s not all Casino Capitalism"
The abstract of the piece lays out the author’s thesis very cleanly and clearly in a single sentence: “… [E]ven though Facebook users have privacy options to control who sees what content, this Article concludes that every single one of Facebook‘s 133 million active users in the United States lack a reasonable expectation of privacy from government surveillance of virtually all of their online activity.” Semitsu begins the piece by explaining the social and political importance of Facebook in a compelling way. To take just one example, he observes a huge percentage of matrimonial lawyers have used or faced evidence found on social networking sites in during divorce proceedings. He then explains that while people may use the privacy controls that Facebook provides them in ways that successfully mediates the information exchanges they have with other private citizens or with commercial entities, these controls have no meaning vis a vis the government. This is because literal application of the Third Party Doctrine means Facebook users can’t have a reasonable expectation of privacy in anything they post. And potentially pertinent provisions of the Electronic Communications Privacy Act may not even apply to Facebook-based communications. Therefore, as Semitsu cogently explains, “though Facebook has been justifiably criticized for its weak and shifting privacy rules, even if it adopted the strongest and clearest policies possible, its users would still lack reasonable expectations of privacy under federal law.”
Semitsu evaluates Facebook’s architecture, its evolving approaches to user privacy, noting that Facebook users may misunderstand their actual ability to delete their accounts or keep information confidential, and that many decline to take advantage of the privacy tools that are available to them. He observes that the situation is pretty similar at other social networking sites as well. Then he launches into an extended elucidation of how the government uses Facebook as an investigative tool. He compellingly illustrates the non-piddling possibilities by explaining how a campus police officer used Facebook to become a whiz at apprehending a University of Illinois student observed urinating in public. Facebook was deployed by law enforcement not because the crime was significant but because it is a fast, cheap and easy way to identify those suspected of extremely minor infractions, who might not have even been pursued if more resources were necessary to bring him to justice. Continue reading "Facebook and the Fourth Amendment: Expecting Any Privacy May Be Unreasonable"
Courts Law Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Adam Steinman
Professor of Law
Seton Hall University School of Law
Professor Howard M. Wasserman
Associate Professor of Law
Florida International University College of Law Continue reading "Meet the Editors"
Today we inaugurate a new Jotwell section on Courts Law, edited by Professor Howard M. Wasserman of Florida International University College of Law and Professor Adam Steinman of Seton Hall University School of Law. Together they have recruited a stellar team of Contributing Editors.
The first posting in the Courts Law section is Evidence Meets Civil Procedure by Howard M. Wasserman. Expect other new sections in the coming months.
Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.
Michael S. Pardo, Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation
, 51 B.C L. Rev. 1451
Perhaps the highest praise for any piece of scholarship is “I wish I had thought of that.” As someone who writes in civil procedure and dabbles in evidence, that was my reaction to Michael Pardo’s Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation. Pardo, for arguably the first time, links non-trial dispositive procedures in civil litigation (Dismissal for Failure to State a Claim, Summary Judgment, and Judgment as a Matter of Law) to the underlying law of evidence that would control the claim at trial. The result is a theory of “procedural accuracy,” under which evidentiary proof rules (especially as to burden and standard of persuasion) inform and provide content to the operation of dispositive procedures, ensuring that those devices produce procedural outcomes that align with the outcomes and policies dictated by evidentiary proof rules. By drawing these links, Pardo both justifies the use of non-trial dispositive procedure and shows how those procedures should properly function.
Courts and commentators have largely ignored this procedure-evidence link. Perhaps this is another by-product of the “disappearing trial.” Because civil actions, especially in federal court, so rarely get to trial (in 2009, trial began in approximately 3 % of civil cases, which actually represented a slight increase from a few years prior), the tendency is not to think about civil actions or civil procedure in trial terms, but only in terms of dispositive non-trial procedure. There has been no systematic effort to link the ordinary operation of dispositive procedure to the controlling evidentiary standards. The Supreme Court has twice drawn these connections.
This is the gap that Pardo fills. Continue reading "Evidence Meets Civil Procedure"
Jan Wouters and Katrien Meuwissen, Global Tax Governance: Work in Progress
?, Leuven Center for Global Governance Studies, Working Paper No. 59 (Feb. 2011), available at SSRN
The international financial crisis has captured the attention of legal scholars across many fields. By virtue of the “international” dimension of the crisis – a function of both its scale and the interconnectedness of commercial and financial flows – specific focus has been directed to the role of international organizations, bodies, and agencies in preventing (or failing to prevent) the crisis. But underlying this attention to international organizations remain a host of unanswered questions about the ways in which states and organizations navigate issues of power, influence, priorities, and resources. A recent working paper by Jan Wouters and Katrien Meuwissen, Global Tax Governance: Work in Progress?, begins the process of linking financial concerns, interlocking international organizations, and related tax policy. The paper offers a window onto the landscape of major actors exercising influence in the current global economic environment and the differing ways in which they advocate on tax policy.
The paper argues that following the 2008 financial crisis fiscal sustainability emerged as a central goal worldwide, and that in addition to domestic measures, countries pursued policies on a global, more coordinated scale. Tax policy was considered crucial to national efforts to take control of the fiscal arena — and coordination was considered essential to successful tax policy. Wouters and Meuwissen ultimately conclude that “no single international forum can be accepted as a fully effective and legitimate global tax policy-maker.” Urging that we may be witnessing a developing global tax governance, the authors nonetheless caution that “integrat[ion] [of] standards into binding agreements is necessary to translate ‘governance’ into ‘law.’” But how exactly does this coordination and policy development take place within and among organizations? Continue reading "Understanding the International Players with the Potential to Shape Global Fiscal Policy"
Rick Su, Local Fragmentation as Immigration Regulation
, 47 Hous. L. Rev.
367 (2010), available at SSRN
The borders of immigration law are incredibly porous. Although immigration law, strictly defined, encompasses the rules that govern the terms of admission into and exclusion or expulsion from the country, immigration law is in fact inextricably intertwined with a whole host of other legal regimes. This includes obvious examples like naturalization and alienage laws, as well as labor law, criminal law and economic policy. But it also includes a host of less obvious candidates.
In his recent article in the Houston Law Review, Rick Su examines an area of law that is not often thought about in conjunction with immigration law: local government law. The connection between immigration law and local government law is not intuitive. Since the late Nineteenth Century, courts have found that the national government has the exclusive power to regulate immigration law, and that Congress’ power to enact immigration legislation is plenary. States and localities, therefore, must limit their own efforts to regulate immigration to areas of the law that are not preempted by Congress’ fairly comprehensive immigration regulation. Although state and local governments recently have played a larger role in enforcing federal immigration law than has historically been the case, courts generally have rejected efforts on the part of states and localities to directly regulate immigration through their own laws. This can be seen in the largely unsuccessful efforts of localities like Hazelton, Pennsylvania and states like Arizona to pass immigration-related ordinances that withstand constitutional scrutiny. Continue reading "Who Controls Immigration Policy?"
Having taught some version of “separation of powers law” since 1982, I think I can say with some certainty that few problems of democratic accountability are more vexing than the general subject of “intelligence oversight.” For half a century, scandal after scandal has exposed an intelligence apparatus that is too often unreliable and susceptible to gross abuse.
Against this background, one might be forgiven a certain amount of pessimism for the future of reform. But it is not as if we are lacking for ideas. Samuel Rascoff’s article, Domesticating Intelligence, 83 S. Cal. L. Rev. 575 (2010), takes an especially thoughtful and creative approach with regard to domestic intelligence gathering, basically urging the application of familiar administrative law principles to achieve both “full compliance with the law, but also intelligence that is accurate, efficient, and useful to policymakers.” Professor Rascoff’s core argument is that “an expansive approach to cost-benefit analysis that [he refers] to as rationality review, judicial review, and public participation made possible by increased transparency ought to play significant roles in reconfiguring the governance of domestic intelligence.” Taking administrative law into this unaccustomed domain is an important scholarly contribution. Continue reading "Strengthening Intelligence Through Administrative Law"
This terrific book, coloured hot pink, has a black-and-white photograph of the Toronto Women’s Court on its cover. The photograph is filled with a lot of men, at least a dozen, all wearing suits, and only two women. Where were the women lawyers, women judges, women clerks and bailiffs, not to mention the female defendants who occasioned the gathering of all this officialdom? The court had a male judge for its first eight years. The small number of women in the photograph and the initial lack of a female judge points to the same kind of contradiction Amanda Glasbeek’s book is most concerned to highlight, namely, the way that this movement to create a female-friendly space for the “right” kind of woman (young ones who had temporarily lost their moral compass and needed to be protected) ended up mostly coercing, disciplining, and punishing a very different kind of woman (e.g. older veterans with persistent drinking problems who were deemed effectively non-reformable).
The maternal feminists who brought the court into existence and eventually got their female magistrate, Margaret Patterson, to preside over it, are subjected to the kind of discussion that leaves no doubt in one’s mind about the kind of reform they intended and achieved, not one with a paradoxical or unintended outcome for some women but one, Glasbeek argues, that did precisely what was intended, namely, “to separate the erring from the hardened, the daughters from the daughters of the night, and the women in need of protection from the women from whom the city needed protecting” (p.176). It was “an ideal reflection of the politics of the middle-class, white feminists of the TLCW [the Toronto Local Council of Women]” (p. 13). These women were moralistic, usually racist, and used the law to further a state-sponsored evangelical mission. Patterson herself, a physician by training, had been a missionary in colonial India who worked with the Indian army on venereal disease (p. 38). This pretty much says it all: “sexually active women [were] a moral and physical danger” (p. 155). Continue reading "Feminized not Feminist Justice at the Toronto Women’s Court"
Michael Stokes Paulsen, Our Perfect, Perfect Constitution
, Constitutional Commentary
(forthcoming 2011), available at SSRN
At the AALS conference this year, I was stung by a criticism a friend launched at Jotwell. Our mission, of course, is to bring the attention of busy readers to articles that the editors think are well worth the time. Well and good—but, this critic observed, most Jotwell reviewers pick articles they not only like, but agree with. They amount to statements that an article is good because it agrees with the reviewer’s own priors.
This is a natural human tendency, of course, but it’s still an apt criticism. A journal devoted to “Things We Like (Lots)” will be more interesting if the “Thing We Like” turns out to be something other than “Myself.” Suitably chastened, I have found my work for Jotwell significantly hampered. I would hate to be accused of writing these reviews as a form of amour propre. Vast numbers of articles that I have enjoyed in recent weeks have been rejected as review subjects because they have the unfortunate tendency to conform to my own (utterly sound) views on constitutional law. I have been searching for just the right piece: one that is enjoyable, interesting, and wrong. Thankfully, Michael Stokes Paulsen has come to my rescue.
Paulsen’s short and biting piece, Our Perfect, Perfect Constitution, is a model of its genre: constitutional scholarship as satire. (It is quite possible that most constitutional scholarship falls into this genre, although usually unwittingly.) Paulsen writes that he, like most constitutional scholars, has fallen into “a peculiar and aggressive strain of Stockholm Syndrome.” (P. 1.) After decades of criticizing the work of the courts, he writes, “I have, finally, succumbed. I now believe that everything in the U.S. Constitution is perfect. More than that, I have come around to the understanding that every Supreme Court interpretation of the Constitution is perfect as well.” (P. 1.) His job, then, is not to rewrite the Constitution as such, but to “update” it “to reflect, perfectly, the Supreme Court’s perfect interpretations of it.” (P. 1.) And so he does, in what he labels a “pocket part” that includes “not only what the Constitution says but also what it really means” according to the Supreme Court. (P. 1.) Continue reading "The Constitution’s Pocket Part"
Ellen Yaroshefsky, Foreword
to Symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really Works?
, 31 Cardozo L. Rev.
1943 (June 2010), available at SSRN
For years, Ellen Yaroshefsky of Cardozo Law School has been one of the leading scholars in the U.S. on issues related to legal ethics and the criminal defense system. In an era in which legal scholars are sometimes accused of writing theoretical works that are of little practical use, she has a track record of successful applied scholarship. Her voice has made a difference. For example, after working on the issue in New York, Ellen Yaroshefsky and Fordham Professor Bruce Green signed the report from the ABA Committee on Ethics, Gideon and Professionalism that recommended that ABA the Section on Criminal Justice sponsor a resolution in the ABA House of Delegates to add Rules of Professional Conduct 3.8(g) and (h). The resulting resolution, which was supported by a number of entities, was adopted. As a result, ABA Model Rule 3.8 now imposes disclosure duties on prosecutors who know of “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted” and requires prosecutors to “seek to remedy the conviction” if they have clear and convincing evidence that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit. This ABA Model Rule change has led to a number of concrete state rule changes that impose new duties on prosecutors. As of January 2011, two states had adopted the proposed revisions to Rule 3.8, three states had adopted a modified version of Rules 3.8(g) and (h), and eleven jurisdictions were studying the ABA resolution and report. I predict that many of these jurisdictions are likely to adopt Rules 3.8(g) and (h), which is what the relevant entity in my home state of Pennsylvania recently recommended.
The 2010 Cardozo Symposium entitled “New Perspectives on Brady and Other Disclosure Obligations: What Really Works” is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law. Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system. This is a broader problem than one might realize. For example, in 2010, the International Bar Association, the Organization of Economic Cooperation and Development, and the United Nations Office on Drugs and Crime jointly developed a survey on “Risks and Threats of Corruption in the Legal Profession.” The Survey was distributed to IBA member and 642 professionals from 95 countries responded. Although the Survey cautioned that its results might not be statistically significant, it also stated that the Survey represented “a first attempt to shed light” on issues that included the legal profession’s perception of corruption in their own jurisdiction. Nearly half of the respondents stated that corruption was an issue in the legal profession in their own jurisdiction. Approximately 20% of the responding lawyers from the U.S. and Canada thought corruption was an issue in the legal profession in their country. (This contrasts with approximately 15% of lawyers in Australasia, 32% of lawyers in the EU, and 90% of lawyers in the Commonwealth of Independent States.) Continue reading "Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases"
Globalization has produced transnational legal phenomena in need of theorizing. From this observation flow several questions about transnational legal phenomena such as private legal orders (e.g., ICANN, UDRP, Bernstein (1992) on diamonds), federal norms (e.g., EU law), international law that is not the product of treaties (e.g., lex mercatoria or the norms produced by the WTO appellate body), soft law and international arbitration (ADR). How should legal theorists make sense of these disparate yet related phenomena?
If we are to theorize these phenomena, what form should such theorizing take? This is the question taken up by Calliess and Renner. As they see it, the answer to the question of “global governance” is a mixture or blend of legal theory/jurisprudence and social science (here law and social norms). Each approach asks a different question. From the point of view of legal theory, the question is “analytical” (their word): how to differentiate legal from non-legal norms? Thus stated, the question is familiar to analytically minded legal theorists. The second dimension is advanced in the form of a challenge, which they state thus: “[T]he most pressing demand on contemporary jurisprudence is to make legal concepts compatible with those of the social sciences without at the same time losing sight of the very own purpose of legal thinking, i.e., the normative analysis of legal structures.” (p. 262) Continue reading "Transnational Law"
Susan Grover & Kimberley Piro, Consider the Source: When the Harasser is the Boss, 79 Fordham L. Rev. 499 (2010).
In Consider the Source: When the Harasser is the Boss, Professor Susan Grover and Kimberley Piro raise a crucial point that should inform the always-evolving jurisprudence of sexual harassment. They argue that the identity of a sexual harasser as a supervisor or a coworker should be, but is currently not, a central consideration in the determination of whether actionable sexual harassment occurred. The article recounts the Supreme Court’s requirement that actionable harassment needs to be, among other things, “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Despite this requirement, the article observes, most sexual harassment jurisprudence fails to factor in the distinction between supervisory and other types of harassment, like coworker harassment, when ascertaining whether a victim’s abuse is grave enough to warrant being deemed actionable harassment.
Courts adjudicating sexual harassment cases are required to factor in the totality of the circumstances surrounding the interactions at issue, focusing on the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Lower courts nationwide, however, have repeatedly refused to find actionable harassment where the abuse was quite severe or quite pervasive. The article notes insightfully that “[t]he crucial question of the harasser’s supervisory status has been one casualty of the courts’ disinclination to apply a true totality of the circumstances test.” (P. 507.) Continue reading "Surveying the Damage"
A cursory perusal of Richard Hyland’s Gifts: A Study in Comparative Law (2009) reveals a massive work of such erudition that the twenty years Hyland admits he devoted to it seems neither surprising nor, indeed, unreasonable. Gifts not only manages to do yeoman’s work for the practicing attorney—providing six chapters that survey the essential aspects of the substantive law of gifts in three common law and five civil law jurisdictions—but this work is likely to change the terms of future discussion about the gift among comparativists and other scholars in the humanities and social sciences. Demanding though this work is, however, the material remains thoroughly accessible. Written in prose that is a model of concise lucidity, the work will engage someone who picks it up and reads a section or two. But the book is ultimately a page-turner and anyone who absorbs one section is likely to succumb to its richness and turn to the beginning, reading the book as it ultimately demands to be read—from cover to cover.
The bulk of the work consists of six chapters that survey the law in the common law jurisdictions of England, the United States, and India, as well as the civil law jurisdictions of Germany, Italy, Spain, France, and Belgium. In addition, Hyland frequently gilds the lily with Roman, medieval, and early modern antecedents, especially where the law encompasses exception layered upon exception, only explicable—Hyland argues—as the excrescence of centuries of legislative tweaking. Continue reading "Deep Irony — The Law of the Gift"
Kenneth Ayotte & David A. Skeel, Jr., Bankruptcy or Bailouts?
, 35 J. Corp. L.
469 (2010), available at SSRN
As we try to learn the right lessons from the 2008 financial crisis, a debate has emerged as to the merits of bailouts versus bankruptcy. Although the chaotic days when Lehman and AIG were failing are starting to fade into financial history, ongoing news on European bailouts reminds us that this debate is still very much alive. Bankruptcy or Bailouts by Kenneth Ayotte and David Skeel, provides an excellent Law and Finance discussion that unpacks the key issues of moral hazard underlying rescues of financial institutions and the systemic risk considerations. They identify cases where bankruptcy has been surprisingly effective, discuss how it avoids various distortions resulting from bailouts, and challenges the common view that Chapter 11 bankruptcy is an inappropriate vehicle for resolving distress in financial institutions.
This article confronts head-on the difficulties in this area – the difficult choices for policymakers, and the difficulty in establishing causality between past events (e.g., the Lehman filing and the AIG bailout) and the volatility and illiquidity in the market. As Ayotte and Skeel remarked, questions such as whether a Lehman rescue loan could have reduced the severity of the financial crisis that followed are “impossible to answer with certainty.” (P. 490.) They then proceed to present some data, which provides us reason to be skeptical about the conventional wisdom that Lehman’s Chapter 11 filing was the singular cause of the resulting credit crunch. Continue reading "Bankruptcy 2.0 versus Bailouts"
David Fagundes, Property Rhetoric and the Public Domain, 94 Minn. L. Rev. 652 (2010).
Are patents and copyrights “property,” and does it matter? While the question is not new in the field, David Fagundes provides a fresh perspective, arguing persuasively that the question should be understood as rhetorical rather than ontological, and that, yes, it does matter. In Property Rhetoric and the Public Domain, Professor Fagundes aims to build upon the work of scholars working in a tradition he labels the “social discourse of property” to reorient the use of property rhetoric with respect to “intellectual property” away from a solely private rights understanding of property. By doing so, he argues, advocates for a positive conception of the public domain will be better equipped to blunt the force of property rhetoric deployed to expand the subject matter, scope or duration of copyrights and patents.
This article follows a prior piece, Crystals in the Public Domain, 50 B. C. L. Rev. 139 (2009), in which he argues that ex ante uncertainty about user rights in copyright is a significant problem that could best be addressed by clearer boundaries between private and public rights in copyright law. While that argument addresses the functional advantages of clearer public rights to use another’s copyrighted expression, this piece argues that there are significant rhetorical advantages to a more clearly defined public domain in copyright law. In his words, “[b]y framing their concern about the public domain as a concern about preserving public property (rather than simply resisting property), actors concerned about this issue can restore balance to this debate.” (P. 701.) Continue reading "The Public Domain Through Property’s Lens"
Writing for Festschriften is an art. A Festschrift author must pay tribute without being trite; advance our knowledge in an area without being presumptuous; and engage an audience beyond the scholar about whose work the Festschriften is focused. No small feat.
For a model of the genre, look no further than Richard Vann’s The History of Royalties in Tax Treaties 1921 – 61: Why?, which was published in a collection of essays in honour of John Tiley, one of the UK’s great tax scholars. Although the essays were published in 2008, I suspect that Vann’s chapter will only get its due now that he has posted the abstract on SSRN. (One of my longstanding frustrations with book publishers is their reluctance to permit authors to post chapters on line in full. This chapter is a case in point. It deserves a wider audience than it will receive.) Continue reading "Festschrift on a Festschriften: The Why of the Royalty Provision in Tax Treaties"
Modern immigration law is built upon a specific historical foundation: the efforts of lawmakers to exclude Chinese immigrants from the country in the late nineteenth century. Remarkably, all of the early cases affirming the constitutionality of Chinese Exclusion are still good law. Based on this jurisprudence, Congress has “plenary power,” free of judicial oversight, over the substance of laws seeking either to exclude migrants or to deport them. Hypothetically speaking, if Congress were today to pass a law declaring that people of Middle Eastern heritage would not be admitted into the country, it would not face constitutional scrutiny (unless, of course, the Court decided to overturn the Chinese Exclusion Case). Plenary power has served to insulate immigration law not only from equal protection norms, as the above example demonstrates, but also from other constitutional challenges, including those to retroactive lawmaking. To provide just one example, a legal permanent resident today can be detained and deported for a misdemeanor crime committed decades ago that was not a deportable crime at the time she committed it.
Scholars have critiqued the disconnect between immigration regulation and constitutional norms using a variety of methodologies. Rarely, however, has legal history been among them. The reasons for this are varied, but one of the primary ones is the relative silence of the Constitution on matters of immigration. The Constitution does not explicitly refer to immigration at all, and the Framers did not expressly discuss immigration policy. This has led to a widely-held assumption that there is not much to learn from the Founding Era to guide Congress and the courts in decisions about modern immigration regulation. In their article, Reclaiming the Immigration Constitution, James Pfander and Theresa Wardon effectively challenge this assumption. They do so using the most persuasive tools of legal history: in-depth, nuanced research into a rich and little-discussed trove of primary source material. Continue reading "Immigration and the Constitution: A New Historical Interpretation"
Susan Grover & Kimberley Piro, Consider The Source: When the Harasser Is the Boss
, 79 Fordham L. Rev.
499 (2010), available on SSRN
In their excellent essay, Susan Grover and Kimberley Piro propose that courts explicitly consider whether a harasser is the target’s co-worker or the target’s supervisor in deciding whether harassment is sufficiently severe or pervasive to constitute actionable harassment under Title VII. Grover and Piro argue that the same harassment will have a different effect on a reasonable employee – a core part of determining if the harassment is severe or pervasive – depending on whether the harasser is the target’s co-worker or the target’s supervisor. The key point – that a supervisor’s direct power over an employee makes criticism or harassment from a supervisor much more harmful to the target’s employment than the same behavior by a co-worker – is virtually unassailable.
The essay identifies an important doctrinal issue. However, its power is it that it raises a practical issue relevant to many workplace harassment disputes and considers how courts ought to address the practical issue through existing doctrine. Rather than create an exotic problem and suggest that courts alter doctrine to address it, the essay makes a very precise point and offers a real prescription for addressing the point. The prescription can be incorporated very easily by courts into their analyses of current harassment cases because it does not require the extension, alteration or reinterpretation of Supreme Court doctrine. The authors implicitly suggest that courts should already be taking the status of the harasser into account when evaluating the severity or pervasiveness of the subject harassment because doing so is already consistent with the Supreme Court’s Title VII doctrine. That may not be the flashiest legal scholarship, but it is very important and worthy of note as a TILL (Thing I Like Lots). Continue reading "Encouraging Courts to Think Practically About Workplace Harassment"
Suzanne Le Mire, Testing Times: In-House Counsel and Independence
14 Legal Ethics
(forthcoming 2011), available at SSRN
Particularly for those of us who live in Europe, Suzanne Le Mire’s new paper on in-house counsel independence is an interesting addition to the existing literature. In September 2010, the European Court of Justice (ECJ) gave its final ruling in the Akzo Nobel Chemicals and Akcros Chemicals v Commission test case regarding the availability of legal privilege for corporate counsel in relation to European Union competition investigations. In the course of its judgment, the Court made some fairly forthright assertions about the lack of independence of in-house lawyers – notwithstanding that the lawyer at the centre of the case was a member of their country’s national bar association.
While the controversial ECJ judgment is discussed in Le Mire’s paper, the case is not central to the issue she wishes to discuss. Instead, Le Mire goes back to first principles: in her introduction, she briefly discusses the pros and cons for companies employing independent in-house counsel – what are the specific challenges those lawyers face? what are their advantages? Here, Le Mire cites Lewis A Kornhauser when she argues that that “independence is not a goal in itself, but a pathway to another goal, such as credibility, or breadth of knowledge”. Continue reading "Evaluating the Independence of In-House Counsel – Making Sense of Judicial Pronouncements"
For election law and statutory interpretation junkies, there’s a nifty student note in the Yale Law and Policy Review by Zachary Hudson on how to construe the products of direct democracy. (In the interest of full disclosure, I should note that I played no role in supervising the paper).
As I teach my students in election law, judges always face a dilemma when trying to figure out what an initiative means. Initiatives are often vaguely worded and lacking in detail. And the usual tools courts deploy to deal with vague texts in the legislative context – like legislative reports – aren’t as helpful here. Even when an initiative is accompanied by a handbook or the like, there’s no guarantee that the voters read it before they cast a ballot. And judges are often reluctant to look to advertisements, media coverage, or surveys as evidence of the voters’ intent, as these inquiries seem pretty far afield from the usual assessments involved in judicial review. Finally, we all know it’s hard to figure out Congress’ intent because Congress is “a they, not an it” (when you talk about “congressional intent,” you are really trying to capture the views of many legislators with vastly different motivations). Needless to say, it is even harder to figure out the intent of the multitude we call “the people.” Continue reading "A Private Law Insight into a Public Law Problem?"
Stephen Holmes, In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror
, 97 Calif. L. Rev. 301
(2009), available at SSRN
Many thinkers have combined a high regard for the rule of law with a negative view of it. This is only an apparent, verbal, paradox. For it is common to understand the rule of law as good, less for what it enables and creates than for what it might prevent. On this interpretation, the point of law is to block and limit the possibility of unruly power, to curb and restrain power’s exercise. This is not a new view. Recall Bracton’s revealing metaphor from the thirteenth century, of law as ‘the bridle of power,’ by which a just king, as distinct from a ‘tyrant,’ must ‘temper his power.’ The characteristics most associated with law changed over the centuries, particularly moving from custom to legislation, and with those changes went different conceptions of what the law needed to be like to do its proper work. However, the identification of the rule of law’s purpose with constraint endured. And it still does. Where the rule of law is commended, it is typically for what it rules out rather than what it rules in; what it restrains and prevents, rather than what it generates and encourages to flourish.
That is not the only way of viewing the rule of law, however, and arguably not the best. Jeremy Waldron has recently criticized views of constitutionalism according to which “[e]verything is seen through the lens of restraint and limitation,” and has insisted on the empowering role and potential of constitutional provisions. Similar points might be made about the rule of law. Stephen Holmes has long stressed the empowering consequences of law; what, in contrast to the more common negative conception, he calls “positive constitutionalism”. Appropriately configured laws, on this view, provide “enabling constraints.”. Continue reading "Jurisprudence for Emergencies"
I admit to being old-fashioned enough to like well-done doctrinal articles. Especially ones that upset conventional wisdom – the courts, the agencies, and the law reviews – by suggesting that, not to put too fine a point on it, everybody’s wrong. Doctrinally. Such is Frank Menetrez’s piece Employee Status and the Concept of Control in Federal Employment Discrimination Law, 63 SMU L. Rev. 137 (2010). Frank doesn’t appear to be in the academy at the moment, but we could use more scholars like him.
Admittedly, I came to the piece with pretty low expectations – agency, control, what new could be said? It turns out, plenty. Frank’s target is the notion that someone can’t be an employer and an employee at the same time, which explains why cases like Clackamas Gastroenterology Associates, P.C. v. Wells turn on whether the doctor-owners were “really” owners (in which case they were employers and, for the Court, couldn’t also be employees). Continue reading "When Employee = Employer"
Natasha Affolder, The Market for Treaties
, 11 Chicago J. Int’l L.
159 (2010), available at SSRN
The transnational transmission of risk is increasingly visible as a subject of policy debate, from transnational terrorism to global warming, from food safety to the financial crisis. These risk transmissions involve more fundamental security risks: for example, the global financial crisis has led to violent protests; low-lying states are threatened by rising water levels; populations facing issues of food security also have implications for security and stability more generally. As these risks become increasingly recognized, international and transnational law, and also international standards, are increasingly relevant to US-based businesses. Private firms are affected when states enact and propose rules to address risks to global security, such as the SEC’s recent proposals for disclosures about the use of conflict minerals.
Our standard model of the impact of treaties (and agreements setting non-binding standards such as those developed by the Basel Committee) on non-state actors involves implementation through domestic legislation. However, in this article Natasha Affolder argues that corporations engage with environmental treaty norms in ways that this standard model fails to reflect. Instead, corporations interact with treaty norms directly and via the transnational standard-setting process. Thus, she challenges the traditional model of treaty implementation and the usual separation between public international lawyers and scholars of private governance. At the same time her article has implications for those of us who study the legal environment within which businesses operate, and illustrates a complex set of interactions between governmental and non-governmental bodies around environmental regulation and practices. Continue reading "When Corporations Translate Treaties"
David Zaring first makes two contributions to the growing empirical literature on judicial review of agency actions and then suggests a dramatic change in doctrine in light of his findings. Based on a study of 226 cases, Zaring found that courts uphold about 70% of agency actions when they apply either the substantial evidence test or the arbitrary and capricious test to agency findings of fact. He then combined his study with over a dozen other empirical studies of judicial review of agency actions to create a meta study of 5081 cases.
In his meta study, Zaring found that courts at all levels uphold about 70% of agency actions no matter what doctrine a court applies. Since choice of review doctrine has no apparent effect on the outcome of a case in which a court reviews an agency action, Zaring argued that courts should simplify review doctrine by replacing the six tests courts now apply with a single simple test—a court should uphold any reasonable agency action. Continue reading "Should Review Doctrine Be Simplified or Restated?"
Lauren Benton is well-known as one of the leading scholars exploring the relationship between law and colonialism in a world history perspective. Her prize-winning 2002 monograph, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900, rested on the considered belief that early modern and modern empires were everywhere marked by significant legal pluralism. Yet legal pluralism took different forms. Early European settlements in the Americas, Africa and Asia began with a “multicentric legal order;” a robust pluralism characterized by multiple systems of law and tensions among semi-autonomous European and indigenous jurisdictions, associations, and corporations exercising their own prerogatives. “Legal jockeying” among settlers and between Europeans and indigenous leaders invited the colonial state to assume a superintending role over competing private and quasi-governmental jurisdictions. A “state centered legal pluralism” thus emerged in many areas of the world.
The purpose of the book was not to better illuminate the history of a particular country or region. The book was problem-driven: at the center was the transition from multicentric to state-centered legal pluralism. Her expert deployment of case studies from four continents raised the stakes, suggesting the importance of a phenomenon that recurred in empires throughout the world. Her global perspective also allowed her to identify the causes of the transition, an endeavor harder to do and perhaps less convincing when confined to one country or empire.
Benton’s methodological commitments, along with her customary imagination and erudition, are on display in her new monograph, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900. She rethinks the relationship between law, geography, and jurisdictional politics in European overseas empires using a wide range of case studies drawn from the French, Portuguese and especially the Spanish and British empires between the fifteenth and nineteenth centuries. Her global approach allows her to contest two well-established narratives in imperial and legal history. To begin with, historians commonly assume that European empires wished to assert control over distinct territories defined by maps. Imperial administrators gradually, with fits and starts, enhanced the ground-level effectiveness and geographical reach of their rule. But Benton’s close look at geography and jurisdictional politics calls into question this familiar story about the “rationalization of space” (p. xii). Though empires claimed territory defined by charters and treaties, they typically controlled “narrow bands, or corridors, and . . . enclaves and irregular zones around them.”(p. 2) These “lumpy” empires were made up of nodes and pathways—sea lanes, trading posts, missions, towns, and garrisons—each maintaining uncertain and changing legal relations to the metropole. Imperial authority was patchy: strongest in corridors and enclaves and weaker elsewhere. Continue reading "A Global History of Law, Empire, and Geography"
Today we inaugurate a new Jotwell section on Legal History, edited by Prof. Kunal Parker of the University of Miami School of Law and Christopher Schmidt of the Chicago-Kent College of Law. Together they have recruited a stellar team of Contributing Editors.
The first posting in the Legal History section is A Global History of Law, Empire, and Geography by Richard Ross. Expect other new sections in the coming months. Please get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.
Aya Gruber, A Redistributive Theory of Criminal Law
, 52 Wm. & Mary L. Rev. 1
(2010), available at SSRN
Every time I teach a course in which the role of victims in the criminal justice system comes up, I find myself explaining to my students that crime victims and their families have played a prominent role in the system only since the 1980’s—that it wasn’t always thus. For my students, the reference is akin to a mention of the role of counsel at British common law—something that happened a long time ago and probably won’t be on the exam. In one sense this reaction is accurate—the role of victims in the system is firmly entrenched both in law and in the public perception. The problem is that while the role of victims expands, criminal justice theory stays frozen in the pre-victims’ rights era, with little attention to where victims fit into the adversarial framework or the goals of punishment.
Should victims have a say on whether the defendant is charged with a crime, or on the seriousness of the charges? Should the families of murder victims weigh in on whether the death penalty is warranted? Who should prevail in a conflict between prosecutor and victim, or between the needs of victims and the rights of defendants? What should happen when victims are divided on charging or sentencing issues? It’s hard to give any good answer to those practical questions in the absence of a theory of victims’ role in the criminal process.
Criminal law continues to stick to the standard story that we punish to deter, to exact just deserts or to incapacitate. All these rationales center on what the defendant deserves or on protecting society as a whole. Where the welfare of individual victims fits into that story is rarely specified. Although retributivist scholars have grappled with the question, they’ve had a hard time linking a theory of just deserts with a satisfying account of how much say a particular victim should have over the fate of the offender. Victim-centered goals end up wedged uneasily into retributive frameworks.
Aya Gruber’s article, A Redistributive Theory of Criminal Law, is a bracingly provocative examination of the theoretical bases for victim-centered changes in the law. Continue reading "One Solution to the Enigma of Victims’ Rights Theory"
John Briton & Scott McLean, Lawyer Regulation, Consciousness Raising, and Social Science
(summary in Geo. J. Legal Ethics
, forthcoming 2011); Christine Parker & Lyn Aitken, The Queensland “Workplace Culture Check”: Learning from Reflection on Ethics Inside Law Firms
(Geo. J. Legal Ethics
, forthcoming 2011).
The American Bar Association Ethics 20-20 Commission should pay some serious attention to Australia. With the Legal Services Act 2007 slated to come into full effect on October 6, 2011, with the licensing of Alternative Business Structures for law practice in England and Wales, all eyes—well, some keen eyes, anyway—have been on the U.K. and its establishment of a regulatory framework for these new organizational forms. But Australia has been regulating “alternative business structures” since 2001, when New South Wales became the first state to allow incorporated law practices (ILPs). Australia’s National Legal Profession Model Bill 2006 includes provisions allowing law firms to have non-lawyer directors and shareholders, and Australia, so far, has the only experience regulating publicly listed law firms. Australia,therefore, has a head start in thinking about the regulation of law practice organizations, whether they be traditional partnerships or alternative, corporate, forms.
Perhaps the most laudable feature of the emerging Australian model is its emphasis on law firm self-assessment and the collaboration this engenders between regulators, researchers, and firms. This collaboration was on full display at the 2010 International Legal Ethics Conference, in a pair of papers analyzing the data on law firm self-assessment, one from a regulatory and the other from a research perspective. Continue reading "Queensland Law Firms Partner with Regulators and Researchers to Improve Firms’ Ethical Culture"
Catherine T. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions
, 51 B.C. L. Rev. 279
Things we like (lots): Irony.
In 1973, the Supreme Court gave us McDonnell Douglas, the ubiquitous framework for proving discrimination under disparate treatment statutes such as Title VII. McDonnell Douglas has been widely criticized – often for good reason. McDonnell Douglas places the full burden of proving discriminatory causation on the party least equipped to prove it: the plaintiff. Additionally, most courts have read McDonnell Douglas as requiring but-for causation for liability, which provides an unjustified windfall to defendants in many cases where multiple motives are at play. Yet, despite these flaws, McDonnell Douglas does one thing well: It allows us to ascribe unsavory, and possibly discriminatory, motives to defendants who dissemble – those who provide non-credible reasons for their actions.
There are alternatives to McDonnell Douglas, including the Court’s 1989 Price Waterhouse framework. Price Waterhouse, too, was vulnerable to criticism. But at least that case permitted burden-shifting on the issue of causation. Yet, in Gross, the Court repudiated Price Waterhouse – at least in ADEA cases. In such cases, the Court held, plaintiffs bear the full burden of proving but-for causation.
In her new article, Catherine Struve questions the Court’s motives in Gross. And she does so using a pretext analysis that is deliciously reminiscent of a McDonnell Douglas pretext analysis. Continue reading "Hoisted by their own Petard: Struve Applies Pretext Analysis to the Court, Finds Justices’ Motives Questionable"
Deborah Hellman, Money Talks but it Isn’t Speech
, 95 Minn. L. Rev.
— (forthcoming 2011), available at SSRN
Is there anything new to say about the constitutionality of campaign finance regulation? Well, actually, there is, and Deborah Hellman says it in her fine new article “Money Talks but It Isn’t Speech.” The significance of Hellman’s article extends beyond the vexed yet tired issue of campaign finance, however. Her work is an important intervention in a central – perhaps the central – problem in modern constitutional law.
To understand what that problem is, we need a brief and necessarily crude overview of twentieth century constitutional history. During the first third of the century, civil liberty rights, to the extent that they existed at all, were closely linked to property and market rights. The reigning ideology treated both as within a private sphere. Liberty was defined as the absence of government intervention, and, at least in principle, there was no distinction between free markets in goods and free markets in speech, both of which were judicially protected by limits on the political branches. Continue reading "Speech and Markets"
Christoph Engel & Michael Kurschilgen, Fairness Ex Ante and Ex Post: An Experimental Test of the German “Bestseller Paragraph,”
available at SSRN
It is often said that in the late 20th century, the legal academy took an “empirical” turn with the rise of law and economics. But the word “empirical” is not quite right as a characterization of the direction in which law and economics has nudged the legal academic literature.
Much of law and economics, especially in its early years, involved the application of (often very basic) economic theory to an expanding list of legal issues. The aim was to use an abstract form of economics to reform legal doctrine. That work was more theoretical than empirical, but that isn’t meant as a criticism – many areas of legal doctrine were so badly theorized that even basic economic interventions yielded up valuable insights. Continue reading "IP Law and the New Experimental Empiricism"
Jonathan Zittrain, Ubiquitous Human Computing, Phil. Trans. R. Soc. A, vol. 366 no. 1881 3813-3821 (28 October 2008).
A banana usually sells for about 30 cents. On average, the plantation owner gets 5 of those cents; the shipper, 4 cents; the importer/ripener, 7 cents; and the retailer, 13 cents. That leaves one penny for the worker who picked the banana. Fruit economics helps drive the politics of “banana republics:” as the unpaid laborers and netizens at Wikipedia note, such countries are “politically unstable,” “dependent upon” commoditized crops, and “ruled by a small, self-elected, [and] wealthy . . . clique.” Oligarchs at the top set the direction of society; workers merely play the roles assigned them. Truth doesn’t matter much; as Paul Krugman noted, one political party promised voters to save money on gasoline by “building highways that ran only downhill.”
Commentators have begun to wonder if the United States is becoming a banana republic. Nicholas Kristof concludes that “You no longer need to travel to distant and dangerous countries to observe . . . rapacious inequality. We now have it right here at home.” Chronicling endless financial industry shenanigans, critical finance blogger Yves Smith seems to label every third post “banana republic.”
Wasn’t the internet supposed to solve these problems? Wouldn’t a “wealth of networks” guarantee opportunity for all, as prediction markets unearthed the “wisdom of crowds?” It turns out that the net, while mitigating some forms of inequality in the US, is accelerating others. Jonathan Zittrain’s essay “Ubiquitous Human Computing” examines a future of “minds for sale,” where an atomized mass of knowledge workers bid for bite-sized “human intelligence tasks.” Zittrain explores some positive aspects of the new digital dispensation, but the larger lesson is clear: without serious legal interventions, an expansive global workforce will be scrambling for these jobs by “racing to the bottom” of privacy and wage standards. This review explains Zittrain’s perspective, applauds his effort to shift the agenda of internet law, and argues that trends untouched on in Zittrain’s essay make his argument all the more urgent. Continue reading "Banana Republic.com"
Marc Spindelman, Essay, Sexuality’s Law, 20 Colum. J. Gender & L. (forthcoming 2011).
Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.
Professor Spindelman begins his essay with a legal puzzle: why is it that out of the thousands of men who have been infected with HIV through consensual sex with another man who failed to disclose his HIV status, almost none have sought to use the law’s tools so as to seek redress for the injuries done to them? The transmission of disease through sex might be intentional, reckless, or negligent, and in any event, occasioned without the informed or knowing assumption of the risk by the person infected. Yet we see virtually no criminal prosecutions for homicide when this occurs intentionally, and almost no civil awards of damages when it occurs recklessly or negligently. Why? Why have gay men not turned to the law to seek redress against other gay men who harm them, and often kill them, by not disclosing their HIV status in the course of consensual sex? Continue reading "Sex/Power/Law"
In her 1996 article, The Myth of Testamentary Freedom, Melanie Leslie argues that “many courts do not exalt testamentary freedom above all other principles” and “are as committed to ensuring that testators devise their estates in accordance with prevailing normative views as they are to effectuating testamentary intent.” I have always agreed with this statement, but Bernie D. Jones’s new book, Fathers of Conscience: Mixed Race Inheritance in the Antebellum South (Univ. of Georgia Press 2009), challenges this assertion. In her analysis of appellate cases from the antebellum era, Jones tells the story of white male slaveholders who used trusts and estates law to grant freedom and/or property to their enslaved mixed-race children and their mothers, thereby circumventing the law of slavery. These testators were counting on judges to exalt testamentary freedom above the law, especially in states where slaveholders’ ability to manumit during their lifetime was quite limited.
Although miscegenation was prohibited in the antebellum South, many white men had sexual relations (sometimes consensual, sometimes not) with female slaves and lived openly with Black women and the children they bore. Despite strong disapproval, there was little that society could do to punish privileged white men who breached social norms. However, these men did more than breach social norms when they sought to grant freedom, property, and the legal rights that follow, to mixed-race children and their mothers; their behavior threatened the institution of slavery itself. Continue reading "Wills, Slavery, and Wealth"
John Armour et al., Law and Financial Development: What We Are Learning from Time-series Evidence
(2010), at SSRN
In the late 1990s, Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert W. Vishny (“LLSV”) launched a research project examining connections between legal rules governing investor protection and economic development. Working on the assumption that legal rules could be measured and quantified, LLSV purported to demonstrate that common law countries were more protective of outside investors – and, thus, more hospitable to economic development – than civil law countries. In the ensuing years, LLSV and other economists have expanded and refined their work, constructing the grandly named Legal Origins Theory, which holds that legal systems are important determinants of economic development. The influence of Legal Origins Theory is not confined to economics journals, but may be seen in policy reforms through the World Bank’s Doing Business reports.
While many legal scholars have dismissed this work because of its naïve assumptions about law and legal change, especially in early papers, a group of legal scholars at Cambridge University – led by Simon Deakin, John Armour, and Ajit Singh – took Legal Origins Theory seriously. Embracing the assumption that legal rules could be measured and quantified (“leximetrics”), the Cambridge Group produced legally sophisticated datasets on shareholder protection, creditor protection, and labor regulation. In Law and Financial Development: What We Are Learning from Time-series Evidence, published as part of a recent symposium on Legal Origins Theory in the BYU Law Review, four members of the Cambridge Group take stock of what we have learned from those datasets and chart some new directions for future research. Continue reading "Taking Legal Origins Theory Seriously"
D. Aaron Lacy, Represent: Hip Hop Culture, the NBA Dress Code, and Employment Discrimination
available at SSRN
Over 20 years ago, Detroit Piston Dennis Rodman ignited a firestorm of controversy by saying that if Larry Bird were white he would be considered “just another player.” Pistons star Isiah Thomas was dragooned into explaining this remark during a broadcast of an NBA Finals game. While acknowledging that Bird was a superstar, Thomas made the broader point that race mattered in perceptions of NBA players. White players were labeled “smart and hardworking,” black players were “naturally talented.” Later in that same Finals series I heard a broadcaster describe a Lakers lineup (of all black players) as “thoroughbreds.”
Race has long been significant in sports, today perhaps nowhere as much as in the NBA. Yet discrimination scholars have largely overlooked this fertile field. Stepping into the breach, D. Aaron Lacy has written a provocative and worthwhile piece on a modern symptom of racial anxiety in NBA employment: the NBA dress code. Continue reading "Does the NBA’s Dress Code Violate Title VII?"