Monthly Archives: June 2011

Particularism, Telishment, and Three Strikes Laws

Jeffrey Brand-Ballard, Innocents Lost: Proportional Sentencing and the Paradox of Collateral Damage, 15 Legal Theory 67 (2009).

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"

Context Matters in Systemic Disparate Treatment Theory

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"

Legal Scholarship and Law Reform

Herbert Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Probs. 216 (1948).

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"

Federalism and Collective Action

Robert Cooter & Neil Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stanford L. Rev. 115 (2010).

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"

The Family as an Economic Unit

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"

New Jotwell Section: Equality Law

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.

Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System

Anne Derrick, In the Matter of a Fatality Inquiry Regarding the Death of Howard Hyde, Report pursuant to the Fatality Investigations Act (2010).

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"

Rape Prosecutions and the Civil Rights Movement

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"

Should We Tax the Rich, or Leave Them Alone?

Linda McQuaig and Neil Brooks, The Trouble With Billionaires, (Viking Canada 2010).

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?"

The Dilemma of Nonlegislative Rules

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,1 in recent years professors Robert Anthony,2 Peter Strauss,3 Elizabeth Magill,4 Nina Mendelson,5 Donald Elliott,6 Jacob Gersen,7 Ronald Levin,8 and John Manning9 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"

A Newly Published Classic on the Ethics and Sociology of Corporate Lawyers’ Work

Robert E. Rosen, Lawyers in Corporate Decision-Making (Quid Pro Books 2010).

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"