Monthly Archives: January 2012

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Access to Courts and the Democratic Order

In this comment on the Supreme Court’s October 2010 Term, Judith Resnik links together three cases – two of them among the Term’s blockbusters and a third that traveled beneath the radar screen – to explore issues of access to courts in modern America.  The blockbusters – AT&T Mobility LLC v. Concepcion, and Wal-Mart Stores, Inc. v. Dukes– have evident connections, as a host of commentators have already noted (and undoubtedly will continue to note in myriad forthcoming articles).  Concepcion held that the Federal Arbitration Act preempts a court’s ability to invalidate as unconscionable under state law consumer-contract clauses that required consumers to waive the right to obtain classwide arbitration.  Wal-Mart held that a class composed of female employees (perhaps as many as three million in total) could not be certified under Federal Rule of Civil Procedure 23.  In adopting constrictive views of Rule 23(a)’s “commonality” element and Rule 23(b)(2)’s injunctive-class-action element, Wal-Mart reduced the scope of federal class actions. But its holdings or dicta on a number of other points – requiring a “rigorous analysis” of Rule 23’s elements, suggesting a need for opt-out rights whenever class members seek monetary relief, and crushing the use of sampling methods to prove individual class members’ damages – have contributed equally to a sense that the Court has sounded the death knell for class actions.

Although too melodramatic a take-away from either Concepcion or Wal-Mart, the death-knell concern fits neatly into a storyline that has been building since the Class Action Fairness Act of 2005, as well as two cases in the October 2009 Term (Shady Grove Orthopedic Assocs. v. Allstate Insurance Co., and Stolt-Nielsen S. A. v. AnimalFeeds International Corp.): federal courts are exercising increasing control over the availability of class actions, whether in court or in arbitration.  And that storyline feeds into the larger storyline of an anti-consumer, anti-employee, pro-business Roberts Court. Continue reading "Access to Courts and the Democratic Order"

 
 

How Social Protest Infiltrates the Realm of Commercial Decision Making

The seminal socio-legal work of Neil Gunningham, Robert Kagan and Dorothy Thornton suggests that social activism is an important influence over firms’ inclination to comply with – and even exceed – regulatory environmental-protection requirements. They further acknowledge that corporations vary in their responsiveness to similar levels of societal pressure, and that the micro-mechanisms underlying this variation require further investigation. Similarly, a recent body of research in sociology and management investigates corporations’ responses to social protest. Yet, much of this literature investigates firms’ average or overall response to social protest, and not the variation among firms. The significance of Weber et al.’s article From Street to Suits: How the Anti-Biotech Movement Affected German Pharmaceutical Companies – stems from its focus on micro-level analysis of firms’ varied response to social protest.

Weber et al.’s research investigates “how external contestation manifests itself in the internal polity of organizations” (ibid, 109). Their empirical focus is on German pharmaceutical companies’ decisions to invest in the development of biotechnology given an anti-genetic social-movement activism during the 1980s. In order to answer this question, the authors collected press coverage, various primary documents, interviews and secondary sources and produced in-depth portrayal of the social movement and of the responses of six leading German pharmaceutical companies. Continue reading "How Social Protest Infiltrates the Realm of Commercial Decision Making"

 
 

Expanding the Canon

Devon W. Carbado and Cheryl I. Harris, Undocumented Criminal Procedure, 58 U.C.L.A. Law. Rev. 1543 (2011).

In most criminal procedure classes, Supreme Court cases focusing on immigration policing get short shrift.  Perhaps not coincidentally, much of the academic literature  – including the literature analyzing the role of race in policing – is also insufficiently attentive to relevant cases involving immigration policing.  In Undocumented Criminal Procedure, Devon W. Carbado and Cheryl I. Harris remind us of three important cases involving immigration policing, and highlight the ways in which these cases have structured the jurisprudential framework governing the role of race in “ordinary policing.”  Their efforts could not have come at a better time.

In December 2011, Assistant Attorney General Thomas E. Perez of the Civil Rights Division of the Department of Justice wrote a letter to Bill Montgomery, the County Attorney for Maricopa County, summarizing the results of a prolonged investigation of the Maricopa County Sheriff’s Office (MCSO).  The Department found “reasonable cause to believe that MCSO engages in a pattern or practice of unconstitutional policing.”  The letter continues:

Specifically, we find that MCSO, through the actions of its deputies, supervisory staff, and command staff, engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices….

That same month, the Civil Rights Division issued findings of similar misconduct by the East Haven police.  Deputy Assistant Attorney General Roy L. Austin Jr. stated: that the Department had found that:

[T]he East Haven Police Department engages in discriminatory policing against Latinos including:  targeting Latinos for discriminatory traffic enforcement; treating Latino drivers more harshly than non-Latino drivers after traffic stops; and intentionally and woefully failing to design and implement internal systems of control that would identify, track, and prevent such misconduct.   The pattern or practice of discriminatory policing that we observed is deeply rooted in the Police Department’s culture and substantially interferes with the ability of the Department to deliver services to the entire East Haven community.

The findings of these two investigations are deeply troubling.  Why is this happening? Continue reading "Expanding the Canon"

 
 

Political Oversight of Agency Decisionmaking

Nina A. Mendelson, Disclosing “Political” Oversight of Agency Decision Making, 108 Mich. L. Rev. 1127 (2010).

Administrative agencies are often said to possess (a) expertise and (b) accountability.  These are the attributes that Justice Stevens relied on in Chevron, for example, to justify judicial deference to agency “interpretation” that is really policymaking.  Both of these admirable characteristics are exaggerated, but neither is mythical.  What is to be done, however, when they conflict?

This is a recurrent question.  Whether and when agencies should be set up as independent commissions, the disagreement between the majority and the dissent in State Farm, much of the battle over regulatory review – all involved at least in part the question whether the president’s preferences, or “political” considerations, should trump the agency’s (expert) judgment.  One doctrinal locus of this dispute is the arbitrary and capricious test. Is it “reasoned decisionmaking” if an agency does something simply because the White House told it to?  State Farm and Massachusetts v. EPA suggest the answer is no.  Four, and arguably five, Justices in FCC v. Fox Televisions Stations  imply the answer may be yes, and a number of commentators – most recently, Kathryn Watts – have argued for judicial acceptance of political justifications for agency action. Continue reading "Political Oversight of Agency Decisionmaking"

 
 

Law in the Neighborhood of Morality and Convention

Nicholas Southwood, The Moral/Conventional Distinction, 120 Mind 761 (2011).

Law is related both to morality and to convention. Differently related, surely.  But how, exactly?  That should be easier to explain if we could say how morality and convention are related to each other.  But how easy is that?

Even as children, almost all of us understand the difference between saying that something is wrong, and saying that something “just isn’t done around here.”  We would say that rape is wrong no matter how commonly it occurs; but we wouldn’t say that passing the decanter of port to the right was wrong even if we found out that, where we happened to be, doing so breaches a hallowed custom.  Not wrong, strictly speaking, anyway, if we mean morally wrong.  We all understand the difference, at least until we’re asked to explain it.  (“And which kind are legal judgments?” –one might wonder: see answer below.) Continue reading "Law in the Neighborhood of Morality and Convention"

 
 

Plausibility, Civil Rights, and Discovery

In Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court substantially altered the pleading standard for civil litigants.  To proceed with a civil claim, plaintiffs must now allege enough facts in the complaint to state a “plausible” claim for relief. In her article, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, Professor Suzette Malveaux  superbly discusses how these recent cases have had a particularly dramatic impact on civil rights litigation.  The impact of Iqbal on this area of the law is often overlooked, and she does an excellent job of explaining how the plausibility standard will impact these litigants.

In her Article, Professor Malveaux begins by critiquing the Iqbal case, highlighting some of the many problems with this decision.  She notes that the Iqbal Court failed to consider the allegations in the case “as a whole,” that in practicality it is often difficult to separate out conclusory from nonconclusory assertions as the decision requires, and that the standard adopted by the Court appears to be a “probability test” rather than a plausibility inquiry. (P. 81-83.) She further accuses the Court of endorsing “judicial fact-finding” at the early stages of the proceedings. (P. 84.) Continue reading "Plausibility, Civil Rights, and Discovery"

 
 

Thinking About Post-Anarchism

Thomas Nail, ‘Constructivism and the Future Anterior of Radical Politics’, Anarchist Developments in Cultural Studies 2010: 1, 73-94

Amongst those who favor equality, there is, it might be said, a reluctance to confront its norms, premises and institutional tendencies. Yet, as a discourse and governance project, it is at least arguable that equality bears (or embraces) conventions of calculation, orderliness, categorization, legitimacy (as a precondition for equality or its result), boundaries and top-down assumptions of implementation and accomplishment. Unsurprisingly, critiques of equality, particularly more anarchist ones, tend to prefer difference, freedom, anti-identity politics, an aesthetic of non-equivalence, and open-ended non-institutional action.

Nail’s (2010) article, invested in building a new radical praxis, poses a way through and between these constructed polarities. While Nail doesn’t address equality directly, the issues he explores are hugely important to thinking more openly, and reflexively, about equality within the context of a radical change politics. At the heart of Thomas Nail’s article is the claim that radical politics needs to rebalance its focus; the almost exhaustive interest in cataloguing and pouring over what is wrong in the present needs to be supplemented more fully with greater interest in the social renewal posed by contemporary social experiments. Continue reading "Thinking About Post-Anarchism"

 
 

New Ideas for Agency Design

Rachel Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, available at SSRN.

One of the most interesting areas of current administrative law and political science scholarship is the attention being devoted to the design of administrative agencies. Some of this work is empirical, and much of it is interdisciplinary, the two buzz words for contemporary cutting edge scholarship in this area, and so many other areas as well. But the real source of this work’s value and promise –and an underlying source of both its empirical and interdisciplinary character– is that it takes law seriously without viewing it from the judicial perspective. The political science scholarship, such as David Epstein & Sharyn O’Halloran, Delegating Powers (1999) and David Lewis, Presidents and the Politics of Agency Design (2003), has begun to free itself from the idea that only politics matters, and looks at the way that legal structures, having been generated by politics, affect the governmental process. The legal scholarship, such as Lisa Schultz Bressman & Robert Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599 (2010) and Jacob Gersen, Designing Agencies: Public Choice and Public Law, in Daniel Farber & Joseph O’Connell, eds., Research Handbook on Public Choice and Public Law (2010), has begun to free itself from the idea that law is to be defined, or at least perceived, through judicial decisions, and looks at the way that it shapes, and is shaped by, executive and legislative actors.

Rachel Barkow’s Insulating Agencies: Avoiding Capture Through Institutional Design, exemplifies this approach. Barkow’s topic is agency independence, but she does not address the tired question of whether such independence offends the Constitution, either in its entirety or in its details. Not only does she ignore the old chestnuts of judicial doctrine in this area, such as Myers v. U.S., 272 U.S. 52 (1926) and Humphrey’s Executor v. U.S., 295 U.S. 602 (1935) but she resolutely resists having anything to say about the recently decided bit of Roberts Court weirdness, Free Enterprise Fund v. PCAOB, 561 U.S. ____(2010) (the aptly nicknamed Peekaboo case). Instead of the children’s game of discussing constitutional limits on the administrative apparatus, her concern is the basic, and extremely serious question of why we want agencies to be independent of political control and how we achieve that goal. Continue reading "New Ideas for Agency Design"

 
 

Lawyers v. Businessmen: Where Are the Bad Men?

Christine Parker, Robert Rosen & Vibeke Lehmann Nielsen, The Two Faces of Lawyers: Professional Ethics and Business Compliance With Regulation, 22 Georgetown Journal of Legal Ethics 201-248 (2009), available at SSRN.

In the glamorous/murky/elite/financially rewarding world of commercial law is it clients or lawyers who are the bad guys?  Put another way, does business corrupt law or do lawyers corrupt business?  This is the question that lies at the heart of Parker, Rosen and Nielsen’s paper.   Since the Savings and Loan scandals via WorldCom, Enron and latterly UK’s own Hackgate, corporate wrongdoing is often accompanied by the question, Where were the lawyers?  And as Big Law turns increasingly, well, ‘big’, the “is law a business or a profession” question is posed increasingly nostalgically, usually with deliberate exaggeration and answered only with speculation rather than evidence.  It is refreshing, therefore, to report on a study which is deals with the relationship between law and business empirically and with imagination which also deals with conceptually important questions.

Indeed, it is a central premise of professionalism that lawyers that they apply their specialist knowledge in the public interest.  That is lawyers should act to encourage lawfulness on the part of their clients.  They should encourage compliance.  Professional ethics courses tend to concentrate on the idea that it is a Holmesian ‘bad man’ client that pushes lawyers into ethically grey areas.  In particular that client (usually a businessman or criminal defendant–sometimes both) exploits a lawyer’s duty to zealously defend their client’s interests.  Corporate clients, as sophisticated players, with deep pockets and repeat business on offer, are able, so the theory goes, to corrupt their lawyer’s into finding ways of playing the system to the client’s advantage.  In simple terms the theory is lawyers good/clients + markets bad.  And, of course, markets win.  Parker and her colleagues ask the question: Is this an empirically testable proposition? And, once tested, is it an accurate proposition which is borne out by the evidence?  For those of you with short attention spans the answers are yes it’s testable and no, it’s not an accurate proposition. Continue reading "Lawyers v. Businessmen: Where Are the Bad Men?"

 
 

Philosophizing about Discriminatory Gifts

Matthew Harding, Some Arguments Against Discriminatory Gifts and Trusts, 31 Oxford J. Legal Stud. 303 (2011).

In 2009, the Illinois Supreme Court upheld a decedent’s right to make a gift with a religious restriction, the “Jewish Clause.”  Estate of Feinberg was extensively reported, bitterly litigated, and placed a white-hot spotlight on gifts with restrictive or discriminatory conditions attached.  In Some Arguments Against Discriminatory Gifts and Trusts, 31 Oxford J. Legal Stud. 303 (2011), Matthew Harding presents arguments to eliminate the freedom to discriminate in the disposition of property, whether for charitable or private purposes.  Harding’s primarily-UK focus and philosophical arguments offer a wider and refreshing view of this public policy debate.  The end result is a sharpened understanding of our own system.

Harding’s thesis is that the common law can and should develop to eliminate the freedom to discriminate in the disposition of property by gift or trust, whether for charitable or private purposes.  He rejects the counterargument of a donor’s personal autonomy.  Harding divides his article into two equal parts:  Can the common law prohibit discriminatory gifts and, should the common law do so? Continue reading "Philosophizing about Discriminatory Gifts"

 
 

Parchment and Obligation

Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011).

Presidents of the United States do not unilaterally extend their term of office, jail all their opponents, or rule by decree. The Supreme Court does not (or at least does not usually) declare its favored candidate to be President. Congress does not abolish the Supreme Court or create an official religion. Why not?

In an important new article, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011), Daryl Levinson reminds us that these familiar facts about our world are deeply perplexing and that the usual explanations for them are manifestly inadequate. Continue reading "Parchment and Obligation"

 
 

Law and Borders, Revisited

Marketa Trimble, The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, 22 Fordham Intell. Prop. Media & Ent. L.J, (forthcoming 2012), available on SSRN.

Fifteen years ago, David Post and David Johnson published what some still regard as the seminal paper of cyberlaw scholarship:  Law and Borders: The Rise of Law in Cyberspace.  Post and Johnson argued that because cyberspace was defined, in a way, by the very absence of territoriality, cyberspace should be governed by laws and lawmakers not tied in traditional ways to territorial states.  That paper provoked a reply, Against Cyberanarchy, by Jack Goldsmith, and those two positions – “cyberspace is different”; “no, it isn’t” — have pretty much defined the landscape of cyberlaw ever since.  Later scholars have had little choice but to explore the implications and details of staking out intermediate positions.  When and how does cyberspace differ, and what do we do about it?

Marketa Trimble’s article approaches this topic by revisiting a species of the territorial question that prompted Law and Borders.  How can and should the law address behavior online by people who are physically located in one place but who wish to create or manage online identities in other places?  Trimble calls this the challenge of “cybertravel,” a phenomenon that is hardly new but that has taken on renewed significance as Internet technologies (and governments) have caught up to the many ways in which cybertravelers can be in more than one place at a time. Continue reading "Law and Borders, Revisited"