Monthly Archives: July 2011

New Governance, Decentring & Unionization as the Default Option

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"

Cambian Rings of Constitutional Amendment

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"

Tracing the Roots of Inequalities: Why Scholars Need to Widen their Nets

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"

Subconscious Impact

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"

Tax Law and Culture: Big Countries and One Small One

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"

The Judicial Playing Field: Courts as Lawmakers

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.1 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.”2

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"

Art Collectors or Archeologists?

Yves Dezalay and Bryant G. Garth, Asian Legal Revivals: Lawyers in the Shadow of Empire (University of Chicago Press 2009).

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?"

The Legal Borders of the United States

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"