Monthly Archives: February 2013

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Changes at Jotwell

• Brian Tamanaha has stepped down as co-Section Editor of the Jurisprudence Section but will remain a Contributing Editor; Robin Kar will be stepping up to co-edit the section with Brian Bix. Brian T. has been a great editor and he leaves the section in excellent shape and in capable hands.

• This week we rolled out version 1.3 of the Jotwell theme; few if any of the many changes under the hood should be visible to readers, but if you notice anything more odd or out-of-place than usual, please let us know.

• One major consequence of the new theme is that we will be able to have a group of mini-sections sharing virtual real estate in a new section we plan to call ‘Lex”. These mini-sections will provide a home for topics in law which, due to a smaller scholarly production, might not merit publishing a review every month. We’re only just starting to put this together – suggestions for topics we should cover and for people who might be managers of mini-sections are both welcome – so it likely will be a few months before this section debuts.

• Jotwell’s student editors will soon be graduating or heading off to other summer employment. Advertisements for a Miami Law student to serve as summer editor will be going up soon, but any Miami Law student who reads Jotwell and responded to this message would have an inside track.


Are Risks Wrong?

John Oberdiek, The Moral Significance of Risking, 18 Legal Theory 339 (2012).

In The Moral Significance of Risking, John Oberdiek offers a theory of why risk imposition is prima facie wrong.  Oberdiek admits that his argument will only be persuasive if he applies it to risk imposition in its purest form (what he calls “risking”).  Risking’s moral significance – if it has any – must be based on the imposition of the risk of harm, and not the harm itself. In other words, if risking is wrong, it shouldn’t matter in our evaluation of it that the risk of injury never ripened into an injury. Thus, second-order effects of risking on the victim, such as emotional distress, cannot justify the conclusion that risk-imposition is wrong. Similarly (although Oberdiek does not discuss this) instrumentalist accounts for imposing liability on the basis of risk obviously cannot explain why risking is wrong, given that risking is significant to an instrumentalist only to the extent that deterring it would result in the optimal level of harm.

Although Oberdiek claims that his article is about risk imposition from the perspective of moral philosophy, he is quite conscious of the fact that his argument, if accepted, would reshape debates in law, especially tort law. Further, he recognizes that establishing the fact that risking is wrong does not answer the question whether any particular act of risking should be condemned or should be the basis of a liability judgment.  His only point in this article is to say that risking is a prima facie wrong, and it may be the case that it is justified in many situations in the balance of reasons, or excused, or, in the case of private law, left unrecognized like other moral wrongs that do not generate liability. Continue reading "Are Risks Wrong?"


Embracing Queer Childrearing

Clifford Rosky, Fear of the Queer Child, 61 Buff. L. Rev. (forthcoming 2013), available at SSRN.

For the nascent lesbian and gay rights movement (before “queer” was repurposed), children and young adults were the most taboo of rights topics.  Gay rights meant sexual liberation, as popularized in films like “Cruising” and songs like the Village People’s “YMCA.”  Apart from Harvey Fierstein’s gay mama role in “Torch Song Trilogy,” queer parents were invisible.  Widespread allegations of “recruiting” young people led advocates to avoid discussions of queer influences on children.  As a gay youth activist in the mid-1980s, I remember the resistance and anxiety around gay youth issues within the national and local gay rights movement.  Even in the ensuing decades, advocates’ references to gay and lesbian parents defensively emphasized similarities to straight parenting.  Only recently have we begun to consider differences between queer and straight parents without a heterosexist lens.  Pop culture, from “Modern Family” to the “New Normal,” has recently given us a window for reconsideration, albeit one rife with bubble gum stereotypes.

Cliff Rosky avoids such traps with his latest work, Fear of the Queer Child.  There, he unpacks the long history of heterosexism in parenting and delineates its remnants.  In his previous work, Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homophobia, Rosky assessed judicial treatment of gay and lesbian parents though gender-differentiated stereotypes in custody and visitation cases.  There, his deft articulation of the interrelationship between sexual identity and gender stereotypes in the parenting context stood out as especially new.  His assertion was that gender – of the parent, the child and the judge – plays a dominant role in the elaboration of homophobic and heterosexist stereotypes about gay and lesbian parents.  The proof he deployed confirmed my long-held belief in the centrality of gender to heterosexism.  In particular, he found that “recruitment” was a charge levied against parents of sons, and explored how the male judges were more likely to adhere to stereotypes about gay and lesbian parents.  Like Father, Like Son avoided a facile identitarianism and did not get stuck in a lengthy refutation.  Fear of the Queer Child holds even more potential to affirm the positive and yes, different, nature of queer parenting. Continue reading "Embracing Queer Childrearing"


Obamacare and Lower-Income Workers

David Gamage, Perverse Incentives Arising From the Tax Provisions of Healthcare Reform: Why Further Reforms Are Needed to Prevent Avoidable Costs to Low- and Moderate-Income Workers, 65 Tax L. Rev. 669 (2013), available at SSRN.

What if Obamacare changes the patterns of lower-income work?  Murmurs in the news suggest that this is happening, for example through increased use of part-time schedules.  In his forthcoming article, David Gamage explains the powerful incentives that the Affordable Care Act (ACA) presents to employers to ensure that lower-income workers will be insured through public exchanges rather than employer-provided health insurance.  These incentives to differentiate apply for a huge number of employees, as they apply until households have income of between 2.25 and 3.5 times the poverty level.

Gamage supports the ACA, but argues that it presents lower-income workers and their employers with a catch-22.  If employers provide health insurance, workers will overpay for it.  But if employers do not provide health insurance, workers cannot access traditional full-time-with-benefits jobs. Continue reading "Obamacare and Lower-Income Workers"


Litigating Health Rights

Colleen Flood, Charter Rights and Health Care Funding: A Typology of Canadian Health Rights Litigation, 19 Annals Health L. 479 (2010).

When lawyers (or, at least, U.S.-trained lawyers) think of legal rights, they think of rights enforceable in courts.  While a “right to health” or “right to health care” is widely recognized in international legal conventions and national constitutions, judicial decisions effectuating these rights are quite uncommon.  Moreover, it is not altogether clear that litigation is the most effective approach to realizing these rights.

Colleen Flood is one of Canada’s leading health law professors.  In Charter Rights & Health Care Funding:  A Typology of Canadian Health Rights Litigation, (which appears both at 19 Annals of Health Law 479 (2010) and as a chapter in Grand Challenges in Health Law and Policy (Catherine Regis and Robert Kouri, eds., 2010), Professor Flood and Y.Y. Brandon Chen analyze health care rights litigation in Canada.  They identify several categories of cases in which health care rights have been asserted in Canadian courts, classifying the cases by whether the claim sought to establish a positive or negative right, was accepted or rejected by the court, and in fact succeeded or failed to establish the right the claimant asserted. Continue reading "Litigating Health Rights"


Family Matters: The Sexual Revolution in American Politics

Robert O. Self, All in the Family: The Realignment of American Democracy Since the 1960s (Farrar, Straus and Giroux, 2012).

After reading Robert Self’s ambitious new book, it is almost impossible to imagine a satisfying history of the last half-century of American politics that does not place gender, sexuality, and the family at the center of analysis. Self’s story begins at the dawn of the Kennedy Administration and ends with John Kerry’s 2004 presidential defeat but focuses primarily on the period between the mid-1960s and the mid-1980s, when radicals, liberals, and conservatives contested and transformed the meaning of family. The central trope of All in the Family is a shift in the reigning paradigm of American politics from “breadwinner liberalism” to “breadwinner conservatism.” Breadwinner liberalism, the organizing principle of the New Deal welfare state, promoted households headed by male breadwinners supporting dependent wives and children. Government policies—from Social Security to the tax code to military benefits to labor and employment regulations—shored up this family wage model of household political economy.

By the late 1960s, breadwinner liberalism was under siege from the left. Feminists challenged the idealization of domesticity and the primacy of homemaking and motherhood over gainful employment for women. Anti-war activists questioned the equation of bellicose masculinity with patriotic citizenship. The gay rights and gay liberation movements mobilized against cultural and political norms that violently repressed and pathologized homosexuality. These movements succeeded in unseating breadwinner liberalism, Self writes. But ideological fragmentation, economic scarcity, and vehement opposition prevented them from inventing a replacement. Instead, in the second half of the 1970s and into the 1980s, breadwinner conservatism filled the vacuum, fueled by antifeminism, anti-statism, homophobia, and the displacements of de-industrialization. This new breadwinner ideal—even less consonant with lived reality than it had been in the 1950s and 1960s—celebrated unfettered capitalism, denigrated government, and combated the uncertainties of post-industrial life with the unwavering conviction that not only countercultural permissiveness but liberal economic policies threatened social order. Abortion rights, feminism, the Equal Rights Amendment, the “homosexual agenda,” and “secular humanism” joined busing, affirmative action, and anti-war protesters as targets of rage and antipathy. Continue reading "Family Matters: The Sexual Revolution in American Politics"


Assessing How Lawyers Keep Their Own Houses Clean: Baseline Report on Outcomes-Focused Regulation

A fundamental tenet of lawyer regulation is that professionals should keep their own houses clean. The enactment of the Legal Services Act of 2007 (LSA) in the United Kingdom (UK) marked a significant shift in the approach to regulation of lawyer conduct. In addition to creating a new mechanism for handling consumer complaints, the LSA adopted a new regulatory regime that represented a radical departure from the traditional approach in which regulators prosecute complaints based on alleged rule violations. With the adoption of the LSA, lawyer regulation shifted to outcomes-focused regulation (OFR). OFR focuses on high level principles and outcomes that drive the provision of legal services.1 OFR requires an articulation of indicators to determine whether outcomes have been achieved.

In an effort to evaluate the new regulatory regime and how its effectiveness is being monitored, the Legal Services Board (LSB) in the UK conducted a comprehensive study of the legal services industry and regulation in England and Wales. The results of that study are set forth in a recent publication, Market Impacts of the Legal Services Act of 2007—Baseline Report (Final) 2012, (“Baseline Report”).2 Continue reading "Assessing How Lawyers Keep Their Own Houses Clean: Baseline Report on Outcomes-Focused Regulation"


Res Ipsa Loquitur & Employment Discrimination?

William Corbett, Unmasking a Pretext for Res Ipsa Loquitur:  A Proposal to Let Employment Discrimination Speak for Itself,  62 Am. U.L. Rev. — (forthcoming, 2013), available at SSRN.

In this article Professor William Corbett does an excellent job of explaining the “tortification” of discrimination law and how the McDonnell Douglas analysis can be viewed as a form of the res ipsa loquitur doctrine. Professor Corbett’s analysis of this issue provides a fresh look at a well-known tort doctrine, and its possible application to discrimination law.

In the first part of his article, Professor Corbett examines how employment discrimination has been transformed by tort law over time. He explains how, subsequent to the passage of Title VII, tort law has been “vigorously infused” into discrimination doctrine. Professor Corbett traces how this transformation has occurred over time — looking at how tort law principles can be found in Price Waterhouse v. Hopkins and section 1981a of the Civil Rights Act of 1991. He also demonstrates how the move toward tort law can be found in the types of claims being pursued by plaintiffs, as well as the limited availability of the class action mechanism for workforce victims. Finally, looking at a number of more recent Supreme Court cases, he shows how tort principles now play a major role in employment discrimination cases. Continue reading "Res Ipsa Loquitur & Employment Discrimination?"


Political Splits

Erik Swyngedouw, Interrogating post-democratization: Reclaiming egalitarian political spaces, 30(7) Political Geography 370 (2011).

Erik Swyngedouw’s exploration of the spacing of politics is embedded within a trajectory of work in political theory (and political philosophy) that asserts the specificity and distinctiveness of the political in the face of left politics’ conventional emphasis on the economy and domination. At the heart of this body of work is post-foundationalism – a philosophical project that recognizes the significance and necessity of ongoing moves to ground political and social order, while simultaneously refusing the notion of a pre-existing, non-contingent base or essence, whether derived from human nature, democracy, rights, justice, or the people.

Working within this framework, Swyngedouw’s article opens with a challenge: how to understand the coexistence and relationship between insurrectional political activism and violent discontent, on the one hand; and post-democratic, technocratic, consensus-based politics, on the other. Swyngedouw seeks to explore this tension through three moves: through the character of the post-political; the politics/political distinction in post-foundational thought; and the question of egalitarian political space. Continue reading "Political Splits"


Building the Federal Judiciary

Scholars working within the field of “Federal Courts” have, from the beginning, been concerned about the past and future of the federal courts as instruments of government. But the beginning of Federal Courts as a field was in the early 1950s, several decades after the Judiciary Act of 1891 created the intermediate circuit courts of appeals and almost three decades after the Judiciary Act of 1925 reconfigured the relationship between the Supreme Court and all other courts in the United States deciding questions of federal law. And the trajectory that the federal judiciary has traveled since that time has been relatively consistent. To the extent that this may have resulted in a failure to appreciate the forces that had already made the federal courts so powerful by the time Federal Courts came into its own, Justin Crowe’s recent book Building the Judiciary offers a helpful corrective.

Building the Judiciary seeks to answer questions about the puzzle of judicial institution building: “How did the federal judiciary in general, and the Supreme Court in particular, transcend its early limitations and become a powerful institution of American governance? How, in other words, did we move from a Court of political irrelevance to one of political centrality?” (P. 2) The book provides a “holistic historical narrative” that focuses on “‘architectonic’ politics: the politics of actors seeking to shape the structures of government in order to further their own interests.”(P. 6.) Crowe contrasts this focus with the “emphasis on judicial prerogative” that he attributes to a “prevailing but problematic ethos of judicial exceptionalism.” (P. 3.) The result of this ethos, Crowe contends, has been the neglect of important questions: “In seeking to understand how judges rule, we have largely neglected the conditions that have made it possible for judges to rule; in emphasizing how the judiciary acts upon politics, we have minimized the ways in which it is equally acted upon by politics.”(P. 5.) Continue reading "Building the Federal Judiciary"


The D.C. Circuit as “Hostile Stranger”

Bruce Kraus & Connor Raso, Rational Boundaries for SEC Cost-Benefit Analysis, 30 Yale J. on Reg. 2 (2013 forthcoming), available at SSRN.

A happy account of judicial review of agency action holds that courts and agencies enjoy a “partnership.” Judge Leventhal provided a classic statement:

[A]gencies and courts together constitute a “partnership” in furtherance of the public interest, and are “collaborative instrumentalities of justice.” The court is in a real sense part of the total administrative process, and not a hostile stranger to the office of first instance. Continue reading "The D.C. Circuit as “Hostile Stranger”"


Why Would the Social Behavior of Good Firms Improve and that of Bad Firms Worsen?

Brayden King & Mary-Hunter McDonnell, Good Firms, Good Targets: The Relationship Between Corporate Social Responsibility, Reputation, and Activist Targeting, in Corporate Social Responsibility in a Globalizing World (2012), available at SSRN.

The global financial crisis fueled public discontent with the economic and political outcomes of capitalist regimes. This caused a mistrust of large businesses, with outrage towards the multinational banking sector in particular. It is therefore no surprise that corporations are increasingly the targets of mass social protests. To take a few prominent examples, in the US, the Occupy Wall Street movement has been challenging the legitimacy of American capitalism, and demanding a deep transformation in the relationship between government, corporations, and the public. In Spain, against a background of skyrocketing unemployment rates, the 15-M Movement has been calling into question the distribution of political power and institutionalized corruption. At the same time, in Israel, unprecedented mass protests during the summer of 2011 called into question the excessive market power of conglomerates, the high cost of basic necessities, and the contraction of the welfare state. These instances of mass social protest pose a threat to corporations’ and public agencies’ legitimacy, reputation and smooth operations.

How do corporations respond to, and manage, the threats imposed by social activism, and what are the consequences of their strategies? One would expect, and indeed hope, that democratic pressures – i.e. social activism – would render irresponsible corporations more responsive to societal expectations and demands. And second, we would like to think that social activism is targeted at irresponsible firms, whereas socially responsive and responsible corporations are rewarded inasmuch as they are less likely to be targeted by activists. King and McDonnell investigate the latter expectation and find that precisely the opposite is true. Continue reading "Why Would the Social Behavior of Good Firms Improve and that of Bad Firms Worsen?"


Generals Can Sometimes Be More Pro-Democratic Than Politicians

Ozan O. Varol, The Democratic Coup d’État, 53 Harv. Int’l L.J. 292 (2012).

How do liberal democracies deal with threats to liberal constitutionalism, when those threats come from political parties willing to use the existing mechanisms of liberal constitutionalism to gain power–and then eliminate liberal constitutionalism? This question was a concern for scholars of constitutionalism several generations ago. More recently, the phenomenon has been captured in the slogan, “One person, one vote, one time,” associated with some positions taken at the first stage in a transition away from authoritarianism–though perhaps only to another form of authoritarianism. Transitional situations are one thing, though; established liberal democracies are another. The experience of Weimar Germany was taken as an illustration–perhaps inapt in detail but useful for thinking through the problem–of the use by antidemocratic forces of democratic means to attain power.

After World War Two Germany responded by embedding in its Basic Law the idea of militant democracy, developed during the war by the exile political theorist Karl Loewenstein. Many other nations have followed suit. Militant democracy extends to political parties the idea that nations can permissibly use force against subversive individuals. According to the idea of militant democracy, liberal democracies can permissibly ban antidemocratic political parties and deny their members the ability to serve in public positions, even in the bureaucracy (because they might use their discretion to favor their antidemocratic comrades). Militant democracy is constitutionalism’s resolution of the problem in political theory of whether and why we should tolerate the intolerant. And, like that problem, the one militant democracy addresses is difficult to resolve. Power-holders may well misdescribe political opposition as a threat to democracy itself, and seek to suppress political parties that are “merely” forceful opponents of their programs. Continue reading "Generals Can Sometimes Be More Pro-Democratic Than Politicians"


Adjudging The Heuristics Debate

Mark Kelman, The Heuristics Debate (Oxford 2011).

In his accessible and thoroughly enjoyable book The Heuristic Debate, Mark Kelman demonstrates for the benefit, primarily, of legal scholars and policy makers, that there is not just one, but there are two challenges, or alternatives, to the economists’ rational choice model of decision making that has so influenced law and policy over the last few decades, both of which come to us from the discipline of cognitive psychology, with one of which — objections coming from the “heuristics and biases” school — lawyers are largely familiar, but the second of which – those coming from the group Kelman labels the “fast and frugal school” –  we are not. But we should be. The second challenge, Kelman suggests, cuts quite a bit deeper than the first, and yields insights of relevance to both law and policy which are at right angles with those offered by rational choice theorists and the heuristics and biases school both. Mark first presents these two schools – heuristics and biases (hereinafter HB) and fast and frugal (hereinafter FF) — as participants in an intra-cognitive psychology debate, as that is how both schools originated, rather than as responses to the economists’ rational choice model of decision making, much less the latter’s deployment in law and policy. Nevertheless, and as Mark eventually argues, it’s also useful to understand both schools in their quite differing relations to the rational choice model of decision making with which they are both in conflict. (Mark calls the latter “rat choice” for purposes of brevity, but I won’t, I’ll call it RC instead.)

I’ll quickly summarize what I understand as the book’s most basic claims, then make a perhaps unwarranted inference, although I hope not, that will sharpen and recast the differences between them but also sharpen the differences of the fast and frugal school with both the heuristics and biases school and the rational choice school.  My basic claim is that it is those differences, between FF on the one hand, and both RC and HB, that have the potential to reframe fundamentally the place of rational choice in our conception of law, and our understanding of alternatives to it.  By contrast to those differences, and that challenge, the familiar challenges posed to RC by HB look much more like friendly amendments – provocative, thoughtful, and fun amendments, but amendments all the same.  In my concluding remarks I will aim to cast somewhat differently what I take to be the most imaginative and interesting but also the weakest part of Mark’s book, to wit the discussion of Holmes and Langdell as exemplars of HB and the FF schools respectively and then finish up with some quick remarks about the role of these models of cognition in legal scholarship and legal policy debates quite generally. Continue reading "Adjudging The Heuristics Debate"