Monthly Archives: August 2012

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Jotwell Summer Break

Jotwell is taking a short summer break.

Posting will resume on Tuesday, September 4. We will be posting more frequently during the academic year.

Thank you for reading — now tell a friend about Jotwell. And if you are an academic reader, please consider recommending Jotwell to your students.


SCOTUS in Focus: Two Takes on Cameras in the Federal Courts

• Nancy S. Marder, The Conundrum of Cameras in the Courtroom, ___ Ariz. St. L. Rev. ___ (forthcoming 2012), available at SSRN.
• Lisa T. McElroy, Cameras at the Supreme Court: A Rhetorical Analysis, ___ BYU L. Rev. ___ (forthcoming 2012), available at SSRN.

Television cameras in the courtroom probably have been debated since there have been cameras to bring into the courtroom, with periodic spikes in attention around high-profile cases–O.J. Simpson’s criminal trial or Bush v. Gore or this term’s Supreme Court arguments on the Affordable Care Act. In the past two decades, a communications revolution has turned that occasional spike in attention into a constant drumbeat. More attention from more outlets is focused on the federal courts, particularly the Supreme Court. And video is ever-more accessible, as people can watch on a multitude of devices in a multitude of places, and ever-less obtrusive, so courtroom actors can easily be recorded without knowing it.

Yet, as Nancy Marder puts it, “the revolution has been stopped cold at the steps to the U.S. federal courthouse.” And the Justices themselves have erected and manned the barricades–rejecting calls for more open and immediate coverage of oral arguments in the obviously unique ACA cases, fighting Congress over who wields power to decide whether to allow cameras, and even jumping into disputes over cameras in the lower federal courts in high-profile cases. Continue reading "SCOTUS in Focus: Two Takes on Cameras in the Federal Courts"


Expanding Our Vision — and the Law’s Coverage — to Include “Marginal Workers”

A strange tension exists in U.S. labor and employment law.  On one hand, the number of laws granting rights to employees has increased considerably in recent decades.  On the other hand, many have argued that these laws have fallen far short of their expected goals and have failed to adequately protect a significant number of workers.  In Marginal Workers, Ruben Garcia goes further than any previous work in describing the various ways in which these laws fail to protect some of the most vulnerable workers in the country.

Marginal workers are those who “fall through the margins of different laws that are supposed to protect them, but lack the political power to fix the holes in the legislation.”  (p. 4).  This includes, among others, immigrant workers in post-Hoffman Plastics limbo, temporary workers, noncitizens, and a variety of low-wage workers who are covered by statutes (including the FLSA, Title VII, and the NLRA) but often get inadequate protection from them.  This includes, but is not limited to, those who should be covered by the statute, but who have been improperly classified as independent contractors or as exempt from the FLSA or NLRA.  The default “employment at-will” rule means that even at best, employment laws are a “patchwork quilt with some rather large holes.” (p. 6). Continue reading "Expanding Our Vision — and the Law’s Coverage — to Include “Marginal Workers”"


What Do We Want from Open Government – and What the Heck is “Open Government”?

• Harlan Yu & David G. Robinson, The New Ambiguity of “Open Government”, 59 UCLA L. Rev. Disc. 178 (2012).
• Jennifer Shkabatur, Transparency With(out) Accountability: The Effects of the Internet on the Administrative State, 31 Yale L & Pol. Rev. — (forthcoming), available at SSRN.

Jotwell prefers that its contributors “like” one piece of scholarship at a time.  But (a) I have to atone for submitting my contribution late, and (b) the two manuscripts that have caught my fancy most recently are wonderfully complementary and deserve to be attended to jointly.

Literally from Day One, a welcome mantra of the Obama Administration has been “open government,” to which the Administration has variously linked the adjectives, “transparent,” “participatory,” and “collaborative.”  As both conceptualized and practiced, however, the very idea of “open government” is highly ambiguous.  Even its arguably most straightforward aspiration – transparency – is rife with uncertainties.  Two important steps forward in understanding the Obama open government “moment” are The New Ambiguity of “Open Government”, by Princeton doctoral student Harlan Yu and Yale law student David G. Robinson, forthcoming in Discourse, the online journal of the UCLA Law Review, and Transparency With(out) Accountability: The Effects of the Internet on the Administrative State, by Jennifer Shkabatur, an SJD candidate at Harvard Law School, forthcoming in Vol. 31, No. 1, of the Yale Law & Policy Review.  Each is a significant contribution to a much undertheorized domain. Continue reading "What Do We Want from Open Government – and What the Heck is “Open Government”?"


The Mounting Challenge to Assertions About “The Nature of Law”

•  Brian Leiter, The Demarcation Problem in Jurisprudence: A New Case for Skepticism, 32 OJLS 1 (2011).
•  Dennis Patterson, Alexy on Necessity in Law and Morals, 25 Ratio Juris 47 (2012) available at SSRN.
•  Frederick Schauer, On the Nature of the Nature of Law (2011) available at SSRN.

A number of prominent contemporary legal philosophers identify as their central task the search for the necessary features of the nature of law. Joseph Raz writes, “The general theory of law is universal for it consists of claims about the nature of law, and about all legal systems, and about the nature of adjudication, legislation, and legal reasoning, wherever they may be and whatever they might be. Moreover, its claims, if true, are necessarily true.”1. Scott Shapiro’s Legality is an extended treatment of the nature of law: “When asking about the nature of law…we want to know which properties law necessarily possess in virtue of being an instance of law[.]”2.

Along similar lines, Julie Dickson insists that a general theory of law must “consist of propositions about the law which are necessarily true, as opposed to merely contingently, true,” because “only necessarily true propositions about law will be capable of explaining the nature of law.”3. This search for the nature of law is not limited to legal positivists. Anti-positivist Robert Alexy pursues the same project (though contesting their answers): “Thus, for the question, ‘What is the nature of law?’ one may substitute the question “What are the necessary properties of law?”….Essential or necessary properties of law are those properties without which law would not be law.”4.

The most puzzling aspect of this project is not the answers these various theorists produce in the pursuit of their quest but the assumption upon which it hinges: that law has a nature. Prior to embarking on a search for the nature of law one would think that the first order of business is to set forth an argument establishing that law has a nature. Without such an account, it is unclear what is being sought or whether there is something to be found. Despite the apparent necessity to tackle this preliminary question, theorists who pursue this aim have heretofore largely assumed it.5. Continue reading "The Mounting Challenge to Assertions About “The Nature of Law”"


Why We Need a Progressive Account of Violence

James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev., 101 (2012).

It seems fair to say that in current criminal law and criminology discourse, Jim Crow analogies are all the rage. The dialogue, and especially Michelle Alexander’s book, The New Jim Crow, is an important and necessary intervention in the national conversation about crime and punishment. Alexander’s book makes the case that the modern U.S. criminal system operates to impose de jure and de facto second class citizenship on African Americans in a strikingly similar manner to Jim-Crow-era laws. The New Jim Crow has received an enormous amount of publicity and has successfully inserted questions of racial hierarchy into what are often insular debates over dessert, deterrence, and appropriate crime management. As much as the Jim Crow dialogue illuminates often ignored or deliberately down-played racial aspects of the U.S. penal state it, like all analogies, is an imperfect comparison. It therefore has a tendency to obscure other factors important to the understanding and critique of mass incarceration—factors like cultural discourses of violence that transcend race, the relationship between incarceration and class and labor, and the role of criminal law in perpetuating and maintaining neoliberal political and economic structures.

This is where James Forman Jr.’s article comes in. In a move that many of his friends and colleagues viewed as head-scratching, Forman, a staunch critic of the American carceral state, decided to set forth a critique of the Jim Crow critique of mass incarceration. Many progressives have a strong instinct that they should stand by the Jim Crow narrative, especially now that it is gaining so much traction. Despite this, Forman makes the case that understanding the limits of the analogy explains why the racial critique of mass incarceration, which has existed for decades, has not succeeded in radically changing support for tough-on-crime measures, even among many African Americans. Forman also argues that concentrating solely on a reductionist racial picture of the criminal system deflects attention from the many other ways that system reflects and reproduces social inequality. In the article, Forman lists six objections to the analogy, but here I want to concentrate on two larger themes of his paper, antiessentialism and accounting for violence. Continue reading "Why We Need a Progressive Account of Violence"


Structural, not Substantive, Due Process

Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672 (2012).

Great scholarship in American constitutional law ranges from the conceptually original to the historically meticulous.  The most cited articles of all time contain far more of the former than the latter. This year’s scholarship contains a rare piece that is both conceptually groundbreaking and a deep historical dive.  An article of interest to multiple audiences, Nathan Chapman and Michael McConnell’s Due Process as Separation of Powers merits kudos from both conceptualists and historicists.

Chapman and McConnell note that due process, the “oldest phrase and the oldest idea in our Constitution,” has, perversely, become “the most unrecognizable in modern interpretation,” a phrase used to “subvert the separation of powers” by giving courts “a super-legislative power to change rather than enforce and interpret the law.”

The authors demonstrate that Fifth and Fourteenth Amendment due process, when applied by courts to constrain legislative power, had a very specific original meaning lost to both the judiciary and modern readers. This meaning is contrary to recent scholarly conclusions that (1) due process only applies to judicial process, (2) substantive due process enables judicial review of legislative policy choices violating judicial notions of property or liberty, even under proper procedures, and (3) substantive due process is contemplated under the Fourteenth but not the Fifth Amendment. Continue reading "Structural, not Substantive, Due Process"