Monthly Archives: May 2011

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The Pragmatic Civil Rights Movement in Atlanta

Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (Oxford University Press, 2011).

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"

 
 

Rethinking the Giant Mess that is Employment Discrimination Law

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"

 
 

Rethinking Rape

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"

 
 

Fiduciary Obligations: Why and When?

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.1

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?"

 
 

Cybersecurity through Information Theory

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"

 
 

What Can Roller Derby Girls Teach Us About IP Law? (Answer: More Than You Think)

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)"

 
 

Congress, the Supreme Court, and Constitutional Interpretation

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 (2011).

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 [1997] 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"

 
 

The Constitutionality of Campaign Restrictions on Non-Profit Organizations after Citizens United

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"

 
 

Reducing Reductionism

Donald A. Dripps, The Substance-Procedure Relationship in Criminal Law, in Philosophical Foundations of Criminal Law (Antony Duff & Stuart Green eds., Oxford University Press, 2011).

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"

 
 

Designing Agency Independence

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"