Monthly Archives: May 2012

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Crime in Suriname

The November 2011 issue of the Law and History Review is devoted to an illuminating symposium on new directions in the study of slavery, edited by Rebecca Scott.  The symposium includes an amazing article by Natalie Davis.  Since this is a blog devoted to enthusiasms, indulge me as I indulge myself.

I am a historian today in large part because of Natalie Zemon Davis.  Back 44 years ago, as an undergraduate at Carleton College, I had just decided that I would try to be a music major because I had decided, in my naiveté, that historians were boring people.  And then I was talked into going to hear a visiting speaker — a Professor Davis from Toronto — who made sixteenth century strikes in Lyons sound so fascinating and who, unlike anyone I had heard to that point, took her audience into the process of thinking reflexively about history. I was hooked.  I changed my major. Continue reading "Crime in Suriname"

 
 

Plausibility Pleading and Employment Discrimination

Charles A. Sullivan, Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011), available at SSRN

In a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons.  As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal?  Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.

But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime?  Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read.  It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena.  Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective. Continue reading "Plausibility Pleading and Employment Discrimination"

 
 

A Tax Scholar’s Take on Legal Education Reform

Bradley T. Borden & Robert J. Rhee, The Law School Firm, 63 S.C. L.Rev. 1 (2011).

Students are graduating from law school with unprecedented amounts of debt and are confronting an uncertain job market. Editorials in the New York Times condemn law schools for failing to teach lawyering. The 2007 Carnegie Report calls for law schools to increase skills and professionalism training so that law school graduates can be better prepared for practice. And the ABA is considering revisions to the law school accreditation standards that would increase the emphasis on what students learn, rather than on what we teach.

By now, we are all familiar with the many criticisms of legal education. Given this backdrop, I want to highlight a tax academic’s scholarship, not on tax law, but rather on the broader topic of legal education reform. Brad Borden, a prolific scholar in the field of partnership and real estate taxation, is the co-author (together with Robert Rhee) of The Law School Firm. The article suggests an alternate model for legal education that could better connect law schools with law practice. Continue reading "A Tax Scholar’s Take on Legal Education Reform"

 
 

Using the NLRA to Nip Anticipatory Retaliation in the Bud

Michael C. Duff, New Nip in the Bud:  Does the Obama Board’s Preemptive Strike Doctrine Enhance Tactical Employment Law Strategies?, (forthcoming Employee Rights and Employment Policy Journal), available at SSRN.

I’m still fascinated by employment retaliation cases.  Not so much traditional labor law.  I’ve generally lost interest.  But Michael C. Duff’s forthcoming essay on the possible implications of the National Labor Relations Board’s decision in Parexel International serves as a reminder to me (and others) that the NLRA might still have some role to play in addressing retaliation even in non-union workplaces.

Parexel involved an employee who claimed she was fired for complaining about what she believed was employer favoritism on the basis of nationality.  Her complaint was internal, the workplace was non-union, and she had not yet mentioned her concerns about favoritism to her co-workers, let alone sought to rally their support.  These facts take the case outside the range of the typical charge of interfering with the right to engage in concerted activities.  Moreover, as Duff chronicles, existing Board precedent was only somewhat helpful to the employee’s claim that she had been fired for exercising her right to engage in protected concerted activity.  Yet, the Board found the employer had violated by Section 8(a)(1) of the NLRA by seeking to prevent protected concerted activity.  In other words, the employer violated the Act by trying to nip concerted activity in the bud. Continue reading "Using the NLRA to Nip Anticipatory Retaliation in the Bud"

 
 

Dueling Visions of the Social Security Disability Adjudicatory System

The Social Security Administration’s administrative appeals system is touted as one of largest administrative judicial systems in the world.  No one claims it is one of the best.  Professor Richard Pierce, writing in the Cato Institute’s Regulation magazine, proclaims that it is seriously broken, and he has suggestions for how to fix it.  One might say radical suggestions.  Dubin and Rains, writing an Issue Brief for the American Constitution Society, take issue with Pierce, rebutting his assertions and defending the basic system as it is, warts and all.  One might believe that publications of the Cato Institute and the American Constitution Society would be hopelessly biased, and of course they do represent different views of the American polity, but to read these two pieces, whatever your political inclinations, will inform you about one of the most important issues in administrative law – how to deal with a mass administrative justice system that seems to be running amok.

To establish that the system is broken, Pierce provides statistics on the increase in disability determinations, the total cost involved in paying for disabled workers, and the role that pain and other non-objective causes of disability play in the increase in disability findings.  Pierce’s theme is that the use of administrative law judges and formal adjudication to re-decide what professionals determined on the basis of paper records is responsible for the breakdown, because their use is needlessly inefficient, results in non-uniform determinations, is skewed in favor of granting benefits, and is unconstitutional to boot.  Why use formal hearing adjudication for what is basically a medical determination?  Pierce suggests that the justification is to allow ALJs to assess the credibility of the claimants on the basis of their demeanor, but he then cites to an important law review article, Olin Wellborn, Demeanor, 76 Cornell L. Rev. 1075 (1991), that concludes that empirical evidence suggests that one cannot determine truthfulness (or falsity) on the basis of demeanor.  Ipso Facto: we don’t need formal adjudications for disability determinations.  The fact that there are wide disparities between ALJs in the outcomes of cases suggests that the hearings are not accurate determinations of the truth.  Moreover, under the current system, the claimant, usually represented by counsel, appears before an ALJ who, according to judicial decisions, is supposed to aid the claimant in making his case, but there is no one to represent the “other side.”  This hopelessly skews the system.  Finally, Pierce argues from the recent case of Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S.Ct. 3138 (2010) that having ALJs decide these cases is unconstitutional because they can only be removed for cause by persons who also can only be removed for cause, violating the prohibition announced in that case on limiting the President’s ability to remove an officer by creating a double for-cause removal system.  Although he provides several possible responses to the problem, his apparently preferred suggestion is simply to eliminate the ALJ review altogether, using the funds saved to review the continued eligibility of current beneficiaries. Continue reading "Dueling Visions of the Social Security Disability Adjudicatory System"

 
 

Rationalizing Heuristics

Mark Kelman, The Heuristics Debate (Oxford 2011).

Many readers are aware of the field of law and behavioral economics, which adopts insights from cognitive psychology to examine and critique prescriptions of rational choice theory for law and policy.  For those seeking a wider understanding of the background, cognitive psychology scholarship has an excellent resource in Professor Mark Kelman’s new book.  As its title suggests, the book synthesizes academic research on the use of heuristics in individual decision making.  Here, I summarize the book, putting out tantalizing teasers to encourage you to read this important volume as well laying out some of its implications for jurisprudence and legal policy.

In addition to the book, I recommend the Stanford Law School symposium devoted to Professor Kelman’s book that you can watch on YouTube after a judicious search of “heuristics debate Stanford.”  But it would be an error to take a short cut and not read the book as well. Continue reading "Rationalizing Heuristics"

 
 

The Pretense of Necessity in Constitutional Theory

Andrew B. Coan, The Irrelevance of Writtenness in Constitutional Interpretation, 158 U. Pa. L. Rev. 1025 (2010).

Good legal advocacy often involves characterizing hard cases as if they were easy, and describing indeterminate precedents or statutory provisions so as to imply that they clearly point in the direction of the advocate’s preferred outcome. And because the great majority of normative or prescriptive legal scholarship is committed by individuals trained and proficient as legal advocates, much of the scholarly output of the legal academy shares the same characteristic. Outcomes that are chosen are claimed to be compelled, and prescriptions that are desired are treated as inevitable. And because advocates whose favored outcomes rest on debated moral or political premises are reluctant to acknowledge the contested nature of the assumptions that drive their outcomes, it is common to see outcomes that are thought to be normatively desirable couched in the language of inevitability, and outcomes thought to be normatively undesirable described as impossible or simply logically flawed.

These pathologies are nowhere more apparent than in the domain of normative constitutional theory, where normative arguments and premises are frequently concealed in the language of linguistic, legal, or institutional necessity. A useful corrective has been provided by Andrew Coan, who attempts, with considerable success, to show that masking morally and politically normative theories of constitutional interpretation in the supposed nature of language itself, or in the inescapable implications of having a written constitution, is largely flawed. Continue reading "The Pretense of Necessity in Constitutional Theory"

 
 

What’s in a Name? The Value of That Which We Call Attribution

Christopher Jon Sprigman, Christopher Buccafusco, & Zachary Burns, Valuing Attribution and Publication in Intellectual Property (Va L. & Econ. Rev Research Paper No. 2012-02), available at SSRN.

We all like to get credit where credit is due, but how much is it really worth to us? In another installment of their provocative series of IP experiments, Sprigman and Buccafusco team up with Burns to test that question specifically in the context of online photography.

The setup is similar to their past papers – subjects are given the opportunity to sell their chance at winning a prize in a creativity contest. The amount they are willing to sell for stands as a proxy for how much they think their IP might be worth. In the past, these experiments demonstrated a tendency for those who owned IP to fall prey to an “endowment effect” and those who created the IP to a “creativity effect,” both of which artificially inflated subjects’ perceptions of the IP’s value, thus leading to market inefficiencies and higher transaction costs. Sprigman and Buccafusco then argued that this differential supports the use of liability rules over property rules for IP, as liability rules tend to mitigate the costs incurred from such irrational holdouts. Continue reading "What’s in a Name? The Value of That Which We Call Attribution"

 
 

Police Discretion? It’s the Department, Stupid.

Nirej Sekhon, Redistributive Policing, 101 J. Crim. L. & Criminol. 1171 (2012).

For observers of the police, an arrest is a black hole of decision-making.  I don’t mean the official reason for an arrest, since a legal basis can almost always be found in the vast criminal codes of most American jurisdictions.  Rather, the mystery lies in the “real” reason for the arrest, this particular exercise of police discretion.  Why this person, and not that one?  Why an arrest, rather than a citation, a warning, or ignoring the problem?  Why arrest on this street corner, and not another one?  Even if you could interview the arresting officer, it’s unlikely you’d get the full story.  Good policing usually involves a mix of training, street smarts, and experienced-based hunches.  Unsurprisingly, defendants often challenge the bases of these choices.  Those police discretion cases that have been decided by the Supreme Court are striking in two respects.  First, the Court has decided to curb police discretion only in the broadest sense; if any substantive law permits arrest, so too does the Fourth Amendment.  Second, as Nirej Sekhon points out in his article Redistributive Policing, the Court has focused nearly exclusively on the individual officer.  Yet it is police departments, which mandate policies and manage their rank and file, that deserve equal attention and, when warranted, blame.

The role of police departments in shaping arrest decisions is considerable.  While top brass can’t micromanage a cop’s split second judgment on the beat, police administrators can set priorities and dictate changes that have enormous practical consequences.  A familiar example is the implementation of quality of life policing in New York City in the early 1990s.  With William Bratton newly installed as the head of the New York City Transit Police, Transit cops tackled the rampant crime and disorder of the city’s subways with a radically different approach.  Transit cops–and later those in the NYPD–were directed to enforce misdemeanor laws that they had previously dismissed as minor, such as public urination, fare evasion, and public drinking.  To hear the NYPD tell it, this was the beginning of the city’s Cinderella story that led to a dramatic crime drop and transformed grimy dens of vice like Times Square into tourist destinations worthy of Disneyland. Continue reading "Police Discretion? It’s the Department, Stupid."

 
 

No Conflict About this Non-Essentialist Reading

Karen Knop, Ralf Michaels and Annelise Riles, From Multiculturalism to Technique:  Feminism, Culture and the Conflict of Laws Style, 64 Stan. L. Rev. 589  (2012).

This engaging article is motivated by the complexity of framing (forget resolving) concepts of culture, by concerns that at least some feminists have become bogged down in their efforts to theorize veiling, clitoridectomy, and polygamy, among myriad other issues, and by a commitment to reasoning from law.  In addition, deep into the piece, the authors explicitly state that they chose the direction of the piece in part to highlight that feminists tend to prioritize culture and leave unaddressed the role of economics in constructing tensions, identities, and concerns.  Even if the article wasn’t so nicely written, even if it didn’t hold hints of something very interesting and hopeful, I would have been captivated by these motivations.

The authors drive the piece in surprising directions.  Part I outlines feminism’s engagement with culture as concept.  Part II situates a specific dispute (although in stylized form) that gives rise to a “clash” of cultures.  Part III illustrates how the technique of conflict of laws assists in reasoning through the particular dispute.  Part IV addresses possible objections and in Part V the authors argue that the approach delineated provides an intellectual style that might be adopted by feminists or cultural theorists.

Four reasons to read the piece… Continue reading "No Conflict About this Non-Essentialist Reading"

 
 

Making the Case for Soft Law

Chris Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century (Cambridge University Press 2012).

Every once in a while I read something and say to myself “this one’s a keeper” in the sense that it goes to the shelf to be drawn on again as an important source of knowledge.  This book earned that status early in the read and it earned it again and again as the read went on.  Indeed, I may be this book’s ideal reader for the very reason that I’m a domestic business law academic.  To be sure, the book follows from and addresses a number of international law literatures and so addresses itself in the first instance to the international legal cohort, both to international law writ large and the group’s business and financial subset.  But the learning curve is much steeper for me than for those primary addressees.  Here we find the whole cast of international financial characters–bankers, cops, securities and insurance regulators, auditors, politicians, bureaucrats, technocrats, and their international and domestic organizations–all carefully and neatly laid out with their histories, structures, and outputs juxtaposed and categorized.  My revelation lay not in the fact that I’d never heard of them (although I must admit that one or two were new to me), but in the fact that my institutional knowledge was full of holes, particularly as regards the book’s comparison to other, treaty-based international organizations.

When I picked up the book I wrote down three general observations, touchstone points to assist in evaluation.  They are:

  1. Globalization implies downward regulatory pressure.
  2. Soft law will always disappoint you.
  3. Reputational sanctions are unreliable.

First, globalization and downward regulatory pressure.  More particularly, what’s the interface between the book’s account and regulatory competition–race to the top, race to the bottom, law as product, or whatever you want to call it?  In fact, there’s not much in the book about downward competitive pressure.  It’s more a background factor that pops up on the screen when pertinent.  Even so, I think it’s an important part of what the book is about.  I think back fifteen years or so to a discourse that posed international regulatory competition as against international regulatory co-ordination. The competition side of the binary was heavily theorized where the co-ordination side was not.  The competition side drew on economic theory going back to Tiebout and had negative things to say about co-ordination, which it cast as rent seeking.  There wasn’t a whole lot on the coordination side.  Since then international lawyers have been slowly filling in the picture.  This is where I locate the book.  For me it fills in the empty set with an exhaustive description of the international co-ordinative effort.  Theory can now start over. Continue reading "Making the Case for Soft Law"

 
 

Adopting a “Child-Centric” Model of Paternity for Nonmarital Children

Camille M. Davidson, Mother’s Baby, Father’s Maybe!– Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father? 22 Colum. J. Gender & L. 531 (2011), available at SSRN.

One of the most important and interesting conversations among inheritance law scholars has been the role genetic connection should play in establishing parentage and rendering a nonmarital child eligible to inherit from her father.  The advent of easy and reliable genetic testing has crystallized the issue and focused scholars on which paradigm we should adopt now that we no longer need “surrogate” rules in intestacy statutes, e.g., acknowledgement by a putative nonmarital father, to help establish whether a child is likely that man’s child.   There is a spectrum in terms of potential paradigms, running from a purely genetic model at one end where a DNA test establishing paternity would make a nonmarital child eligible to inherit even if she had no relationship with her father to a purely functional approach where the father’s behavior and intent would be the linchpin of whether the child is eligible to inherit, regardless of her genetic connection.  I would characterize the former  model as a “child-centric” model where the interests of the nonmarital child trump that of the father and his other marital children since the nonmarital child does not have to rely on the father to take any affirmative action like acknowledgement in order for the child to be eligible to inherit.

In her recent article Mother’s Baby, Father’s Maybe!-Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father?, Camille Davidson argues for the adoption of such a child-centric model of establishing paternity in the area of inheritance law. She highlights some of the historical antecedents of our current patchwork of state laws on defining paternity.  Davidson also adopts a comparative lens in evaluating how states should embrace the genetic connection between a nonmarital child and her father as dispositive of not only of paternity but of her eligibility to inherit from him.  In so doing, Davidson makes a compelling argument for this approach and adds an important voice to the academic conversation in this area of inheritance law. Continue reading "Adopting a “Child-Centric” Model of Paternity for Nonmarital Children"

 
 

The Jim Crow Foundations of Agricultural Governance

Kimberley S. Johnson, Racial Orders, Congress, and the Agricultural Welfare State, 1865-1940, 25 Studies in American Political Development 143 (Oct. 2011).

Kimberley S. Johnson’s recent article, “Racial Orders, Congress, and the Agricultural Welfare State, 1865-1940,” is part of a valuable turn evident in recent scholarship on governance in the twentieth century. Bringing together politics and race to understand agricultural policies and institutions, Johnson asks, “[w]hen does race matter; and how does race matter when thinking about the shaping of the American state?” (P. 144) The answer? Race has shaped agricultural policy in some surprising and not-so-surprising ways.

In her study of the “agricultural welfare state,” Johnson examines the shifting ways in which the federal government provided farmers with services and subsidies in the decades following the Civil War. Responding to scholarship centered on interest group relations and partisan politics, Johnson stresses the importance of considering the political machinations involved in agricultural policy in the specific historical context in which these programs were designed and implemented. She describes in detail the numerous agricultural programs that came out of Congress in the years before the New Deal, and examines how their design and implementation occurred against a backdrop of legalized white supremacy in the rural South. The segregated nature of Southern agriculture combined with the power of Southern Democrats in Congress meant that national agricultural programs reflected the assumptions and preferences of powerful southern interests in maintaining racial hierarchies and allowed local authorities significant discretion in the distribution of assistance. Although the federal government consistently acknowledged its role in protecting farmers from economic dislocation, racial calculations, she argues, destroyed early on any possibility that the federal government would establish universal agricultural benefits as a matter of right. Continue reading "The Jim Crow Foundations of Agricultural Governance"