Monthly Archives: June 2013

The Truth About Empathy

Thomas B. Colby, In Defense of Judicial Empathy, 96 Minn. L. Rev. 1944 (2012).

President Obama was widely criticized when he stated that he viewed a “quality of empathy, of understanding and identifying with people’s hopes and struggles” as an essential attribute in a judge, one that he would look for in choosing Supreme Court justices and other federal judges. Conservative commentators attacked this as endorsing naked judicial activism, a call for more liberal judges running amok and deciding cases to suit their political preferences in favor of the “little guy” rather than based on “law.” Neither of the President’s Supreme Court nominees would openly endorse the empathy standard in their confirmation hearings, although Justice Kagan subtly defended the underlying idea, if not the terminology, at her confirmation hearing. And Republican members of Congress used the President’s words (or at least their (mis)interpretations of those words) to oppose his Supreme Court nominees.

With In Defense of Judicial Empathy, Thomas Colby undertakes the first comprehensive scholarly treatment and defense of the President’s arguments and of empathy as an essential and unavoidable component of good judicial decisionmaking. And he ties the centrality of empathy to broader debates over the judicial role. Continue reading "The Truth About Empathy"

(Same) Sex and the City

Luke A. Boso, Urban Bias, Rural Sexual Minorities, and the Courts, 60 UCLA L. Rev. 562 (2013), available at SSRN.

Places of transformation and constant activity, cities have always loomed large in the cultural imagination.  Clark Kent left the cornfields of Smallville for Metropolis, and in the process, discovered his true identity as Superman.  Carrie Bradshaw fled to New York City, where she discovered Manolo Blahniks and (after some false starts) true love.  The tale of escape from rural life to urban opportunity is not merely one that plays out in fantasies.  Instead, such migration accounts for large-scale demographic shifts in American society.  In the first half of the twentieth century, African Americans fled the racism and parochialism of small Southern towns for the (relative) freedom and opportunity of Northern and Western cities.

More recently, cities have figured prominently as sites of LGBT identification and acceptance.  Consider the popular “It Gets Better” campaign, which aims to combat the feelings of isolation and despair that LGBT youth often face.  Premised on the idea that coming out and assimilating into a welcoming LGBT community are integral for a happy adulthood, It Gets Better often assumes that LGBT persons seeking a “life worth living” will do so in the cosmopolitan confines of an urban metropolis.  Indeed, in one ad, Michael Bloomberg, the mayor of New York City, rolls out the welcome mat for LGBT youth.  “New York,” he advises, “has always been the place where anyone can go and be who they are supposed to be, regardless of ethnicity, religion, gender, or sexual identity.” Continue reading "(Same) Sex and the City"

Law As Unfinished Social Action

Sara Ahmed, On Being Included: Racism and Diversity in Institutional Life (Duke University Press, 2012).

After reading Presumed Incompetent: The Intersections of Race and Class for Women in Academia1 and attending the Symposium organized around the book by the Berkeley Journal of Gender, Law and Justice, I came home to find Sara Ahmed’s On Being Included: Racism and Diversity in Institutional Life waiting in my mailbox (this Jot is about On Being Included, although I’m quite prepared to say that I like Presumed Incompetent (lots) as well). The combination of these two books, both filled with personal stories and institutional insight, cracked my vision of my own place in the legal academy, and the “practice” of diversity, wide open. I read this work as a person who shares a (not surprising, really) number of experiences-as-academic with Ahmed. I read it just after reading the often deeply personal essays in Presumed Incompetent. I also read it as a person who has worked to avoid being noticed as “the problem” while trying to maintain a commitment to anti-racist work. These days, that means deep concern that my own strategies and efforts are nothing more than thinly veneered cooptation. All of these things, I think, amplified the impact of the book on me. But I still do not hesitate to recommend it to you, Jotwell reader.

On Being Included is a different kind of offering from a well-known Black British feminist, Professor in Race and Cultural Studies at Goldsmiths (University of London), whose work draws on feminist theory, queer theory, critical race theory and post colonialism. She writes, “It develops my earlier arguments about ‘stranger making’ by thinking more concretely about institutional spaces…” (P. 3.) The book is a study of “diversity” as work inside institutions of higher education. Unlike most of her other work, this one developed out of an empirical study she undertook with a team (read the Introduction for the description of how this happened). Ahmed’s interviews, her personal connection to the subject matter (her presence is part of how her institution does diversity (P. 153), and she has done ‘diversity work” there as well), and her linking of empirical and theoretical insights make this a deeply engaging read. Continue reading "Law As Unfinished Social Action"

Physician Heal Thyself: Whither the Police and Prosecutor in the Tale of Forensic Science Gone Wrong?

On February 15 of this year, the Department of Justice and the National Institute of Standards and Technology in the Department of Commerce announced their partnership in forming a National Commission on Forensic Science (the Commission). The aim of the Commission is to develop “a framework for coordination across forensic disciplines under federal leadership” and to establish national standards for forensic scientists. Both critics and defenders of forensic science in the criminal justice system largely applauded the announcement. Jennifer Laurin, however, probably let out a sigh.

That’s because Laurin’s important new article, Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight, challenges the assumption that fixing the nation’s crime laboratory problem will in turn solve its integrity-of-forensic-evidence problems. Instead, Laurin identifies the analysis of crime scene evidence as but one small part of a greater chain of events that starts when forensic evidence comes into existence and ends with its appearance at trial in a criminal case. Before evidence ever gets seen in a lab, in other words, it must first be collected, preserved, and submitted. And, after submission, evidence may only be as useful as prosecutors allow it to be, for instance via explicit requests for testing, receptiveness to the results that are generated, or timely disclosure and access during discovery prior to trial. Yet, she laments, these critical moments have evaded significant scrutiny even though upstream users of forensic science—police and prosecutors—“… select priorities, initiate investigations, collect and submit evidence, choose investigative techniques, and charge and plead cases in ways that have critical and systematic, though poorly understood, influences on the accuracy of forensic analysis and the integrity of its application in criminal cases” (p. 1055). Continue reading "Physician Heal Thyself: Whither the Police and Prosecutor in the Tale of Forensic Science Gone Wrong?"

Regulating Financial Innovation

Niamh Moloney, The Legacy Effects of the Financial Crisis on Regulatory Design in the EU, in Eilís Ferran, Niamh Moloney, Jennifer G. Hill & John C. Coffee, Jr., The Regulatory Aftermath of the Global Financial Crisis (International Corporate Law and Financial Market Regulation Series, Cambridge University Press, 2012).

Books sometimes occupy a different ecological niche in legal scholarship than do articles. The fact that books are the main scholarly medium in the UK, while articles dominate in the US, imposes an unfortunate hurdle to communication. Differences in legal regimes and regulatory structures exacerbate the problem. Readers unfamiliar with another jurisdiction’s regime may not be able to appreciate the rich comparative insights that come from evaluating different treatments of shared post-financial crisis regulatory challenges. One of the benefits of a website like Jotwell is that it can help bridge the gaps imposed by geography, institutional structure, and medium, and potentially enlarge the audience for important work that otherwise does not appear online.

Niamh Moloney’s chapter in this book is exceptional in the degree to which it considers financial regulation in terms of regulatory design, as evaluated prospectively. (In the book’s first chapter, coauthor Eilis Ferran lucidly covers existing financial regulatory reforms in the EU. Coauthors Jennifer Hill and Jack Coffee also provide thoughtful chapters, respectively covering why Australia fared relatively well through the financial crisis, and the political economy of Dodd-Frank in the US.) Continue reading "Regulating Financial Innovation"

State Boundaries and Constitutional Limits

Clyde S. Spillenger, Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, UCLA School of Law Research Paper No. 12-01 (February 15, 2012), available at SSRN.

Most constitutional law scholars pay no attention to the field of conflicts of law. Conflicts governs the law of multi-jurisdictional litigation—like which state’s law to apply when a railroad worker is injured on a train from Alabama to Mississippi, or whether a marriage in one state will be recognized in another, or how to enforce a court’s ruling against assets or people in another state. And as those examples might suggest, it can frequently seem like a technical adjunct to civil procedure.

Yet conflicts questions frequently do interact with constitutional law principles of federalism. One example is the doctrine of “extraterritoriality”—the limits on a state’s ability to regulate stuff that takes place somewhere else. Territoriality is a basic premise of the federal system; everybody knows that the New York legislature can’t just sit down and rewrite all of the laws of New Jersey. This seems like a common-sense requirement of our constitutional structure.  But as Clyde Spillenger demonstrates in Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, the nature and source of this principle is misunderstood today. Continue reading "State Boundaries and Constitutional Limits"

Public Agencies Going Private

Jon D. Michaels, Privatization’s Progeny, 101 Georgetown Law Journal (forthcoming 2013), available at SSRN.

Administrative law loves binaries. There are executive agencies and independent regulatory commissions. There are federal bureaucratic organizations and state entities. There are public agencies and private firms. In recent years, scholars have examined organizations from different sides of a “boundary” working together – for instance, executive agencies and private firms in the new governance literature and separate federal and state agencies in federalism work. There is little discussion, however, on organizations essentially operating at or near the boundary.

Jon Michaels’s previous work has focused on national security agencies turning outward from the public sphere, specifically using government contracting, for classic government tasks. In his forthcoming piece, Privatization’s Progeny, Michaels turns inward, exploring how privatization is reshaping a wider class of public institutions themselves, through “the marketization of bureaucracy” and “government by bounty.” Continue reading "Public Agencies Going Private"

How Should Judges Spend Their Time?

Marin K. Levy, Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals, 81 Geo. Wash. L. Rev. 401 (2013), available at SSRN.

The federal appellate caseload has grown from 73 cases per active judgeship in 1950 to 330 cases today. Scholars have criticized the heavy caseload and the techniques that appellate judges have developed to manage it, such as using staff attorneys and issuing unpublished opinions. Such techniques, they have argued, create a “bifurcated” system of justice with a “separate and unequal” track for certain types of cases, such as immigration cases, cases with pro se parties, social security cases, and certain types of criminal cases. They advocate systemic reforms that would alleviate this disparate treatment.

In her recent article, Judicial Attention as a Scarce Resource, Marin Levy undertakes a different task from that of scholars calling for systemic reform. While she does not necessarily dispute the need for such reform, she takes as her premise that, in the short term, the judicial system will remain relatively unchanged. Her project, then, is to examine how well judges are working within current constraints and to consider how their work might be improved. Continue reading "How Should Judges Spend Their Time?"

More Hair-Raising Decisions, and How Professor Wendy Greene Combs Through Their Flaws

D. Wendy Greene, Black Women Can’t Have Blonde Hair . . . in the Workplace, 14 J. Gender Race & Just. 405 (2011), available at SSRN.

If you are looking for an interesting and timely employment discrimination article to read, please consider Black Women Can’t Have Blonde Hair . . . in the Workplace, by Professor Wendy Greene of Cumberland, Samford University, School of Law. In that article, Professor Greene builds upon the work that she began in her article Title VII: What’s Hair (and Other Race Based Characteristics) Got to Do With It1 where she argued that characteristics that are commonly associated with a particular racial or ethnic group should fall under Title VII’s current protected categories of race, color, and national origin. Professor Greene also builds upon a seminal work in Critical Race Theory, A Hair Piece: Perspectives on the Intersection of Race and Gender2, which was written by Professor Paulette Caldwell of New York University School of Law more than twenty years ago.

In A Hair Piece, Professor Caldwell used the case Rogers v. American Airlines to expose the ways in which employer grooming codes can be used to discriminate against black women at the intersection of race and gender. In Rogers, a black female employee of American Airlines filed a lawsuit under Title VII, arguing that her employer discriminated against “her as a woman, and more specifically, a black woman” through a grooming policy that prohibited employees who had customer contact from wearing all-braided hairstyles. In dismissing Rogers’s claims based on American Airlines’s appearance grooming regulations, the district court provided two basic reasons for its decision (without actually ever addressing the plaintiff’s intersectional discrimination claim): (1) that the challenged appearance code did “not regulate on the basis of any immutable characteristic” and (2) that the challenged policy applied equally to both races and sexes. Professor Caldwell astutely argued that the flaw in Rogers was that it rested upon the premise that racism and sexism existed and operated separately and independently from each other. Continue reading "More Hair-Raising Decisions, and How Professor Wendy Greene Combs Through Their Flaws"

Should a History of Spousal Abuse Serve As A Presumptive Bar To Inheritance?

Spivack, Carla, Let’s Get Serious: Spousal Abuse Should Bar Inheritance, 90 Or. L. Rev.  247 (2011).

When I read the title there were three questions that came to mind right away. First, I was curious how to determine the type of abuse that would serve as a presumptive bar.  Next, I was curious how this presumptive bar would apply to wills and/or other forms of inheritance.  Finally, I wondered what mechanism would be in place to prevent this proposal from being used to usurp a woman’s decision to transfer her own property the way she desires.

Professor Spivak answers the first question by proposing a presumptive bar to inheritance to an abusive spouse because it provides an opportunity to expand existing laws.  The existing laws already provide a presumptive bar to inheritance to perpetrators of elder and child abuse of the decedent.  Including spousal abuse as a barrier to inheritance sends the message that spousal abuse is just as an important public policy stance to deny an unjust enrichment to abusers as the others categories of abuse.  As a policy matter I agree that perpetrators of spousal abuse should not be permitted to inherit in cases where systemic abuse exists.  As a practical matter I envisioned this would be tougher to regulate because there are different types of abuse and how should abuse be defined for this limited purpose. Continue reading "Should a History of Spousal Abuse Serve As A Presumptive Bar To Inheritance?"

Late-Night Law Firms

Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev.  805 (2011).

Every year, I ask the students in my torts class whether any of them came to law school because they wanted to practice tort law. So far, only one has said yes. And she planned to join her father’s personal injury practice, so that was something of a special case.

This is not surprising. An awful lot of my students do not know what tort law is, at least not at the start. And those that know what tort law is tend to associate it with the lawyers that advertise on late-night television. Though most first-year students do not know what they want to do, they do know that they do not want to be one of those lawyers, whom they take to occupy the bottom rung of a profession that is not held in all that high esteem anyway. It is a constant struggle to get my students to see that there is more to tort law than those late-night lawyers.

But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court.  They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are worth. And perhaps most important, they increase access to justice, offering representation to clients with meritorious claims who would otherwise not seek lawyers or find ones willing to pursue their low-value claims. Continue reading "Late-Night Law Firms"

The Real Legal Realism

Karl N. Llewellyn, The Theory of Rules, edited and with an introduction by Frederick Schauer (Univ. of Chicago Press, 2011).

Llewellyn began this book in 1938 in response to mischaracterizations of his views about legal rules. After working on it for two years, he set it aside unfinished. Mouldering for decades among the rest of Llewellyn’s papers at the University of Chicago, it has finally been published, with a masterful introduction and set of notes by Fred Schauer.  Although the book offers many valuable insights about what this prominent legal realist thought about legal rules, my emphasis here will be on how it might help put to rest two persistent misreadings of the realists.

The first is that the realists believed in global legal indeterminacy—that they thought legal rules can never (or only rarely) give judges sufficient guidance to come to a particular decision. This misreading is evident in H.L.A. Hart’s critique of “rule skepticism” in Chapter VII of The Concept of Law. The Theory of Rules is a useful corrective, for Llewellyn repeatedly insists that legal rules can, and often do, meaningfully instruct judges about how cases should be decided (e.g., Pp. 40-41, 46-47). What is more, he identifies the likely source of the mistaken view that the law is globally indeterminate—the tendency of legal scholars to concentrate on cases that make it to appellate review. (P. 47.) Here Llewellyn’s book supports Brian Leiter’s reading of the realists, for Leiter has argued tirelessly that the realists were not global legal indeterminists (e.g., Pp. 19-20 of Naturalizing Jurisprudence). Continue reading "The Real Legal Realism"

“Creative Destruction” and the Legal Services & Legal Education Markets

Ray Worthy Campbell, Rethinking Regulation And Innovation in The U.S. Legal Services Market, 9 N.Y.U. J.L. & Bus. 1 (Fall 2012).

If you are like me, you have started to notice—more and more frequently—expressions such as “creative destruction,” “creative disruption,” “disruptive innovation,” and “positive disruption.” Two recent examples include the TEDxCHANGE 2013 event held in April in Seattle which had the theme of Positive Disruption and a January 2013 Harvard Business Review blog entry entitled Creative Destruction Visits the Legal Profession. These terms have also appeared in conferences (see Panel 1) and talks at places such as Georgetown and Harvard law schools and in blog posts by higher education leaders, legal academics such as Bruce Kobayashi, and legal consultants such as Jordan Furlong (see here and here [legal education] and here, here, and here [legal services]). Disruptive innovation has been a prominent theme in the award-winning LawWithoutWalls program, which was founded by Michele DeStefano and Michael Bossone from University of Miami School of Law and in the ReInvent Law Laboratory, which is a creation of Michigan State Professors Dan Katz and Renee Knake.

During the past five years, as I have noticed more and more people using expressions such as “creative destruction,” I wondered what class or book I had missed since the speakers all seemed to know much more about this topic than I did. For this reason, I was particularly pleased to read Professor Ray Campbell’s new article entitled Rethinking Regulation and Innovation in The U.S. Legal Services Market because it provided the historical and theoretical background behind these expressions and because it gave me a new way to think about changes taking place in the legal services and legal education markets. Continue reading "“Creative Destruction” and the Legal Services & Legal Education Markets"

Property and (Not “vs.”) the State

Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (Harvard University Press, 2013).

One of my favorite cases is Shelley v. Kraemer (1948), which held that racially restrictive covenants (restrictions barring a racial or ethnic group(s) from owning a home in a particular neighborhood) were unenforceable. In fact, I use this case, along with State v. Mann, Commonwealth v. Alger, and Johnson v. M’Intosh, to help frame my Property course. I use Alger and Johnson to get my students to think about the statist dimensions of property. I then bring in Shelley to explore the relationship between courts and the state, pushing them to see how a judicial decision concerning property rights is an allocation of those rights by the state. Richard Brooks and Carol Rose’s book, Saving the Neighborhood, is a wonderful doctrinal history of Shelley that both confirms and complicates the story I tell my students. More importantly for this piece, it also complicates our understanding of an important period in American legal history.

Saving the Neighborhood charts the rise, fall, and curious persistence of racially restrictive covenants. What particularly grabs Brooks and Rose’s attention is Shelley’s failure to eradicate these covenants. Their persistence is illustrated dramatically by the discovery during Justice Rehnquist’s confirmation hearings for Chief Justice that he owned properties subject to racial covenants (pp. 1-2). This persistence leads Brooks and Rose to an exploration of the relationship between law and social norms. They argue that the covenants’ utility was more about signaling to both insiders and outsiders who was desirable as a neighbor than it was about enforceability. Covenants assured those already within the neighborhood, while warning out racial others who might want to move into it. Continue reading "Property and (Not “vs.”) the State"

Taxation and the Family: The Next Generation

• Anne Alstott, Updating the Welfare State: Marriage, the Income Tax, and Social Security in the Age of the New Individualism, Tax L. Rev. (forthcoming, 2013) available at SSRN.
• Shari Motro, Preglimony, 63 Stan. L. Rev. 647 (2011).

The tax treatment of marriage, children, and the family unit has attracted increasing attention in the past few years. The most dramatic example is the same sex or “gay marriage” phenomenon, where academics—Patricia Cain and Anthony Infanti come particularly to mind—have frequently anticipated real-world developments. But taxation of heterosexual couples is stuck in a similar time warp, and scholars have been no less aggressive in trying to catch up.

Two authors in particular have done provocative work in this area.  The first, Anne Alstott, has a long track record: her book “No Exit” describes the unique phenomenon that is motherhood and the need for tax, spending, and social policies to recognize that uniqueness.  In a more recent article, “Updating the Welfare State: Marriage, The Income Tax, and Social Security in the Age of the New Individualism,” Alstott focuses specifically on the tax component.  She argues that, because of the overall decline in marriage and the concentration of marriage among higher-income groups, it is no longer appropriate to organize the taxation of families around the existence of the marriage relationship. The most obvious implication is that joint returns should be repealed and replaced with separate, individual returns or (more ambitiously) with combined returns for households whether or not organized by marriage. The social security system would likewise be amended to replace spousal benefits with a system that emphasized caregiver relationships.  Many additional portions of tax and nontax law would require similar adjustment: Alstott does not purport to provide a complete list but rather to focus attention on the paradigm shift from which these changes would flow. Continue reading "Taxation and the Family: The Next Generation"