Monthly Archives: February 2016

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Leviathan Had a Good War

Mariano-Florentino Cuellar, Administrative War, 82 Geo. Wash. L. Rev. 1343 (2014).

Some readers value an article for logical rigor, some for sound judgment, some for immediate utility, some for originality, and so on into N dimensions. (We may value more than one dimension, of course, but not “all of the above,” because the desirable traits may trade off against one another, at a frontier; no one piece can display all of them simultaneously and to a maximum degree). The peculiar excellence of richness is on display in Administrative War by Tino Cuellar, formerly of Stanford, now molted into a higher form of life as Justice Cuellar of the California Supreme Court. Cuellar recounts the history of the administrative state during the Second World War, and connects it to the surrounding political conflicts and developments in legal theory. There is no single thesis, no one-sentence nugget. Rather we are treated to a kind of legal-historical cornucopia. Cuellar’s story undermines conventional wisdom on a number of critical issues in administrative law. Let me attempt to lay out some of the wealth of interesting points that emerge.

1. The New Deal and the War. Cuellar’s basic narrative recounts the arc of the administrative state just before and during the Second World War. Administrative lawyers, particularly critics of the administrative state, still talk about “the New Deal” as though it were the moment when the Rule of Law gave way to the administrative state (and as though “the New Deal” were all one thing or era, as opposed to a pastiche of movements and developments). Distilling, synthesizing and translating-for-lawyers a library of background literature, Cuellar explains that the war, rather than the New Deal, represented the key “inflection point” in the growth of the administrative state. Furthermore, unlike World War I, which gave rise to a number of more or less temporary bureaucracies, the burgeoning administrative state was cemented into place during and by World War II, and by the odd political consensus that created the Administrative Procedure Act of 1946—a key legitimating mechanism for Leviathan. The pedagogical implication of all this is that the constitutional conflicts of the 1930s, which occupy so much space in public law courses, should at a minimum be supplemented and probably partly displaced by a study of the bureaucratic developments of the war years. Less time on the National Industrial Recovery Act (NIRA), which did not provide an enduring model for the American administrative state; more time on (entities like) the War Production Board (WPB) and the Office of Price Administration (OPA), which did. Continue reading "Leviathan Had a Good War"

 
 

Why Importing Employment Discrimination Causation Into Criminal Law is a Bad Idea

Leora F. Eisenstadt, Causation in Context, 36 Berkeley J. Emp. & Lab. L. 1 (2015), available at SSRN.

In Causation in Context, Professor Leora F. Eisenstadt harshly critiques Burrage v. United States, a case in which the Supreme Court imports some of its troublesome thinking on employment discrimination causation into a criminal law case. I like the article lots because it crosses two substantive areas and explains why causation, a tricky and core concept in both areas, does quite different work in each area. In the process, the article exposes the larger danger of misusing a powerful tool that judges, lawyers and law professors alike use – reasoning by analogy. Professor Eisenstadt implicitly suggests that reasoning by analogy is of little or no use if the court that is reasoning has an insufficient understanding of the underlying areas at issue and fails to recognize what makes the analogy inapt.  If a court wants to use an employment discrimination concept in a criminal law area, the court needs to understand why the concept has been used—and whether the concept has been misused—in the employment discrimination area before deploying it in the criminal law area.

In short, the article considers how the Supreme Court in Burrage imported the but-for causation principle – the notion that a factor does not cause a result if the result would have occurred in the absence of the factor – that has been become prevalent in the employment discrimination area into a criminal law case. In the process, a principle used to determine whether intentional discrimination caused an adverse job action is now used in a criminal case to determine whether the use of an illicit drug caused a victim’s death. The article discusses the Court’s mistake in finding a false equivalency between causation in criminal law and causation in employment discrimination law. The false equivalency not only triggered an inappropriate use of an employment discrimination causation standard in the criminal law case; it may trigger a broader assumption that a principle used in one area of the law can be borrowed and used in other areas of the law. That could create problems if courts import concepts from other areas of law into an already complex employment discrimination arena. Continue reading "Why Importing Employment Discrimination Causation Into Criminal Law is a Bad Idea"

 
 

Enforceability of Predispute Arbitration Provisions

Mary F. Radford, Predispute Arbitration Agreements Between Trustees and Financial Services Institutions: Are Beneficiaries Bound?, 40 ACTEC L. J. 273 (2014).

Disputes are a persistent reality of trust law and even the most meticulously-drafted and expertly-administered trust can be embroiled in litigation, often involving trust investments. In an effort to avoid litigation, many investment advisors and banks include in their routine account agreements, provisions requiring arbitration in the event of any dispute. When a trustee opens an account that contains a mandatory arbitration provision, are the beneficiaries also bound?

Professor Mary Radford delves deep into the practice, cases, and theory of predispute arbitration provisions. Her discerning and experienced eye expertly distills the essence of a trustee’s fiduciary responsibilities with the practical realities of investing in the 21st century. This article appealed to me because it offers a thoughtful, sophisticated, and wide-ranging look at an increasingly common provision. At a time that arbitration clauses are under review, the article connects trust law to the wider world; it is a good example of the law as “seamless web.” Continue reading "Enforceability of Predispute Arbitration Provisions"

 
 

What is Tax Scholarship, and Who Decides?

Shari Motro, Scholarship Against Desire27 Yale J. L. & Human. 115 (2015).

I typically begin my Federal Income Tax course discussing how tax is the one area of law that touches every aspect of life, from birth to death, from marriage to divorce, from retirement to child-care, and everything in between. Similarly, tax scholars write on topics ranging from same-sex marriage and the earned income tax credit, on the one hand, to carried interest and corporate inversions, on the other. By this point, my colleagues are surely tired of hearing me repeat how tax law has something meaningful to say about everything.

Given this incredible breadth and diversity of the tax law, why is it that most people think of tax scholarship primarily as number-crunching, or business planning, or law and economics? While I happen to be sympathetic to this point of view, primarily because it happens to coincide with my primary interests, why is it so often considered the standard for the best of tax scholarship? Continue reading "What is Tax Scholarship, and Who Decides?"

 
 

The Man, The Torts Legend

  • Christopher Robinette, The Prosser Letters: 1919-1948, 101 Iowa L. Rev. __  (forthcoming 2016), available at SSRN.
  • Kenneth S. Abraham & G. Edward White, Prosser and His Influence, 6 J. Tort Law 27 (2015), available at SSRN.

United States courts cited Dean Prosser’s hornbook on Torts more than 200 times over the course of 2015.  In that year, courts also cited Dean Prosser’s Restatement (Second) of Torts more a thousand times. Dean Prosser’s work shaped the law of Torts in the United States and continues to do so today, forty-three years after his death. Despite Prosser’s out-sized influence in the field, surprisingly few articles have been written about this founder of contemporary Tort law.

Two recent articles begin to fill that gap. Ken Abraham and Ted White tackle the subject of Prosser’s work and influence. Meanwhile, Chris Robinette uncovers the private correspondence of the man behind the law. Both the Abraham and White article and the Robinette article are insightful, a pleasure to read, and ultimately leave the reader ready to purchase the next chapter (Robinette reveals that part two is in the works). Continue reading "The Man, The Torts Legend"

 
 

A Way Forward: What’s Good and Bad about Legal Services Regulation in the United States and Canada?

North American legal services regulation has been slow to evolve. This reality is particularly apparent when one looks at the rest of the common law world. Take, for example, the radical changes over the last decade or so in the way English and Australian lawyers are governed: among other things, self-regulation has been turfed, as have tight restrictions on non-lawyer ownership. While it is still too early to evaluate the full effect of these and other reforms, they have led to some interesting developments, like publicly traded law firms and the regulation of law firms (as opposed to the regulation of individual lawyers only).

Having observed these changes abroad, many lawyers and academics have suggested that American and Canadian regulators ought to adopt similar reforms in response to modern practice realities. Indeed, to some extent, such changes are already afoot. Some prominent examples include the American Bar Association’s recent passage of a resolution that provides guidance to states if they choose to regulate non-traditional legal services providers and the fact that several Canadian provinces are considering, if not, implementing entity and/or compliance-based regulation (further discussion can be found here, here, and here). Notwithstanding these developments, others have argued that North American legal service regulation should hold firm in the face of dangerous foreign experiments. So who is right? Both and neither, according to a recent book by University of Windsor law professor Noel Semple. Continue reading "A Way Forward: What’s Good and Bad about Legal Services Regulation in the United States and Canada?"

 
 

Recapturing Water for Sustainability Through Redefinitions of Navigability and Ownership

Maureen Brady, Defining “Navigability”: Balancing State Court Flexibility and Private Rights in Waterways, 36 Cardozo L. Rev. 1415 (2015), available at SSRN.

More than 86,000 square miles of inland waterways traverse and meander throughout the United States. Since ancient times, navigable waterways were not subject to private ownership, but were reserved to the public under the public trust doctrine. In contrast, non-navigable waterways could be privately owned. While riparian and littoral rights are firmly fixed in the common law, what has proven to be more fluid is the definition of “navigability.”

In Defining “Navigability”: Balancing State Court Flexibility and Private Rights in Waterways, 36 Cardozo L. Rev. 1415 (2015), Maureen Brady explains that over the last two centuries, state courts have broadened the concept of navigability, and applied the new definitions to alter existing land titles. As a consequence, many non-navigable waterways have become navigable waterways, increasing public ownership and extinguishing private rights. Continue reading "Recapturing Water for Sustainability Through Redefinitions of Navigability and Ownership"

 
 

Environmental Law and Justice in the Anthropocene Era

Angela Harris, Vulnerability and Power in the Age of the Anthropocene, 6 Wash. & Lee J. Energy Climate & Env’t 96 (2014).

The future is the Anthropocene Epoch – or at least some geologists argue that human activities now dominate global systems like the oceans and climate in qualitatively different way in the past, justifying the identification of a new geological era. Certainly human impacts on climate change provide a strong example to support this claim. Legal scholars are only just now coming to terms with what (if any) significant implications the Anthropocene might have for our legal system.

One thing I particularly like about Angela Harris’ piece (Vulnerability and Power in the Age of the Anthropocene) is that it takes on the big question of whether and how the Anthropocene matters. Harris argues that the Anthropocene matters because in an era in which humans are changing global systems, there will be ongoing and major impacts on all humans, but especially the most vulnerable – in other words, changes in our global environment will have a particular salience for populations that have less political or economic power. After all, it is no accident that among the countries most vulnerable to the sea-level rise that is a product of climate change is Bangladesh, a poor and politically weak country where tens of millions of people may be displaced. As Harris notes, understanding how climate change affects those without political or economic political power is a key part of beginning a conversation about the relationship between the Anthropocene and critical legal theory. Continue reading "Environmental Law and Justice in the Anthropocene Era"

 
 

Legislating Medicine

Alena Allen, Dense Women, 76 Ohio St. L.J. 847 (2015).

When anecdotes trump data, health policy can become engulfed by bad science. Alena Allen eloquently captures the pitfalls of this phenomenon in her article, Dense Women, which provides a comprehensive normative and descriptive analysis of breast density notification statutes. To my knowledge, Allen is the first legal scholar to tackle this important issue. While breast density notification statutes vary by state, they each share a common goal: ensuring that physicians provide certain information to women who have dense breast tissue and directing women (to varying degrees) to speak to their doctors about further medical tests.

Breast density notification statutes were passed in response to heart-breaking stories of women who were diagnosed with breast cancer despite initially receiving negative mammogram results. One of the leading advocates is Nancy Cappello, who was diagnosed with breast cancer despite ten years of negative mammograms, and was eventually told that only an ultrasound could detect her cancer, given her dense tissue. Following a mastectomy, chemotherapy, radiation, and hormone treatment, Cappello began advocating for legislation mandating that physicians inform women when they have dense breasts. As Allen writes: “Their message is hard to resist. They are advocating to inform and empower women. They want to standardize, improve, and promote increased doctor-patient communication. Their message is so enticing that state legislatures across the country are listening.” In 2009, Connecticut (Cappello’s home state) became the first state to pass such a law, and twenty-three states have followed. (Legislation is pending in ten states, and a bill was recently introduced in the U.S. House of Representatives.). Continue reading "Legislating Medicine"

 
 

Coercion and the Conceptual Force of Law

Frederick Schauer, The Force of Law (Cambridge: Harvard University Press, 2015).

Some of the most difficult problems in legal and political philosophy concern the state’s use of coercive enforcement mechanisms. The problem of justifying state authority, for example, is an important moral problem precisely because the state characteristically employs enforcement mechanisms that coercively restrict the freedom of law subjects – coercion being presumptively problematic. Without such mechanisms, authority does no more than “tell people what to do” – a practice that seems presumptuous and rude but not one that would give rise to any serious moral problem that warrants a great deal of philosophical attention.

In The Force of Law, Frederick Schauer discusses a variety of problems that arise in legal theory because of the law’s characteristic use of coercive enforcement mechanisms. The book’s treatment of the role of coercion in law spans the entire spectrum of these philosophical problems, encompassing issues that are conceptual, normative, and empirically descriptive in character. It is an unrelentingly fascinating discussion that demonstrates Schauer’s impressive mastery of a literature on coercion that crosses many discipline lines. The book succeeds in bringing the problems associated with coercion back to the forefront of debates about the nature of law; it is, for this and many other reasons, a must-read. Continue reading "Coercion and the Conceptual Force of Law"

 
 

What Scope for Patented Designs?

Sarah Burstein, The Patented Design, 83 Tenn. L. Rev. ___ (forthcoming 2016), available at SSRN.

Ornamental designs of articles of manufacture have been patentable subject matter in the U.S. since 1842. About 400,000 such patents have issued in the years since the birth of this regime, two-thirds of which have been granted since 2000. Scholarly interest in design patents has historically been quite modest, but has been heating up lately. This is due in no small part to the epic battle between Apple and Samsung over Apple’s claim that Samsung’s phones infringed some of Apple’s design patents. Samsung has asked the Supreme Court to consider whether the designs at issue are really “ornamental” and thus properly covered by design patents. In addition, Samsung wants the Court to review the award to Apple of its total profits on the sales of the infringing phones in the amount of $399 million.

The Supreme Court has not reviewed a design patent law since 1894. The Court’s 1871 decision in Gorham v. White articulated a test for infringement that is still influential today. Gorham did not raise difficult issues of patent scope because the defendant in that had embodied a clearly ornamental patented design for silverware in directly competing products. Continue reading "What Scope for Patented Designs?"

 
 

‘Politics as Markets’ Goes Global

Comparative constitutional law is a field crowded with rich and complex ideas about the role of courts and judicial review in a democracy. Yet into this field has now come an important new argument, which is bound to make a distinctive impression on how constitutional scholars and political scientists around the world understand the positive origins, and normative functions, of judicial review in democratic settings: Samuel Issacharoff’s argument that constitutional courts around the world can and do play a valuable role in “democratic hedging.”

The idea of hedging of this kind arises in response to two basic threats: first, that within many democratic systems there are a range of antidemocratic actors who attempt to use the freedoms enshrined by constitutional democracy to launch an attack on its most basic institutions and stability, from within; and second, that in many new democracies in particular, there are often political elites that are so dominant that they effectively stifle the degree of political competition needed for true democracy, even in the most minimal sense. Continue reading "‘Politics as Markets’ Goes Global"

 
 

What We Do With Substantive Due Process

Jamal Greene, The Meming of Substantive Due Process,  31 Constitutional Commentary — (forthcoming 2016), available at SSRN.

In 1980, John Hart Ely pronounced substantive due process “a contradiction in terms—sort of like ‘green pastel redness.’” Today, the idea that substantive due process is an oxymoron has become commonplace. Professors of constitutional law teach that it is so; judges rehearse the criticism in their opinions. Of course, this hasn’t stopped courts from protecting substantive rights under the Due Process Clause. But they have generally responded to this critique by invoking stare decisis rather than building any kind of affirmative textual case for the doctrine. Just five years after Ely’s quip, the Supreme Court conceded that the substantive dimension of due process is not rooted in the language of the Constitution but is simply “the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.” This concession, among other things, has put supporters of the Court’s substantive due process rulings—particularly those vindicating sexual and reproductive rights—on the defensive. The idea that substantive due process is a contradiction in terms cloaks these rulings in illegitimacy. It suggests they are constitutionally unmoored, or worse yet, moored in an interpretation of the document that is fundamentally absurd.

In an excellent, thought-provoking new essay forthcoming in Constitutional Commentary, Jamal Greene shows that this particular critique of substantive due process became prominent only in the 1980s. Substantive due process had, of course, garnered criticism before then—especially during the Lochner era and on grounds that it enabled judges to engage in policymaking. But it was only in the 1980s, in the wake of decisions such as Griswold and Roe, that there was apparently a realization that the word “substantive” contradicts the word “process” in due process analysis—and that this contradiction undermines the validity of the Court’s substantive due process rulings. Greene shows that this realization coincided with the growth and expansion of a certain kind of originalism. The claim that “substantive due process” is inherently contradictory was actively promoted by conservative legal actors inside and outside the Reagan Justice Department. A substantial number of the judicial opinions—including the great majority of appellate opinions—that have attacked substantive due process on these grounds have been written by appointees of that department. Greene argues, in other words, that the claim that substantive due process is an oxymoron was fostered and spread as part of a political movement. The delegitimation of decisions such as Griswold and Roe was not a byproduct of the assertion that substantive due process is an oxymoron, but rather, its purpose. Continue reading "What We Do With Substantive Due Process"

 
 

The Low Road

Serena Mayeri, Marital Supremacy and the Constitution of the Nonmarital Family, 103 Calif. L. Rev. 1277 (2015).

A concern about the marriage equality movement is that it has reinforced the supremacy of marriage and detracted from the LGBT community’s broader agenda of family pluralism.1 In her stunning new work, Serena Mayeri describes a similar dynamic in the history of another civil rights movement—the movement to eliminate illegitimacy classifications. There, too, important civil rights were secured at the cost of achieving broader, more comprehensive legal reform on behalf of non-conforming families. The parallelism of these two movements is not random or fortuitous. Indeed, Mayeri’s work shows that the movements contributed to the same legacy of marital supremacy and that the loser in these two movements was the same: women, especially poor women and women of color, whose circumstances and desires put them outside the mainstream of traditional marriage.

Case by case, Mayeri takes us through the major litigation of the 1960s and 1970s that challenged illegitimacy classifications in Social Security benefits, inheritance rights, wrongful death claims, public assistance benefits, mandatory paternity disclosure rules, citizenship law, child support law, and employment bans against unmarried women. She shows that the illegitimacy challenges that succeeded (and many did not) did so because courts concluded that it was unfair to visit the sins of unmarried mothers upon their children. It was not that children were to be treated fairly along with their mothers; rather, they were to be rescued from the circumstances their mothers had created. Continue reading "The Low Road"

 
 

Thinking for the Future

Katherine Gibson, Deborah Bird Rose, & Ruth Fincher, Manifesto for Living in the Anthropocene (2015).

Manifesto for Living in the Anthropocene is notable for two reasons – it is published under a creative commons license with a publisher committed to innovation, and it is an optimistic book that attempts to prefigure a world in which life and research are undertaken more sustainably. (And it contains an actual manifesto!)

The first thing to like about this book, therefore, is its publisher, in particular its business model and its ethos. Punctum texts are freely available on the internet – readers can make a donation before accessing a title, but can also access them for free. Hard copies can also be ordered. The objective of punctum books is to challenge scholarly norms – its motto is ‘spontaneous acts of scholarly combustion’ and it describes itself as ‘dedicated to radically creative modes of intellectual inquiry and writing across a whimsical para-humanities assemblage. We specialize in neo-traditional and non-conventional scholarly work that productively twists and/or ignores academic norms.’1 As academics become more critical about certain trends in traditional scholarly endeavor with its formalities and many constraints, there is a huge potential for new forms of more open-ended and innovative scholarship. Books published by punctum are short – novella length – making them ideal for conveying creative interventions succinctly, without getting bogged down in detail. Continue reading "Thinking for the Future"

 
 

International Law and Step-Zero: Going Beyond Cyberwar

Kristen Eichensehr, Cyber War & International Law Step Zero, 50 Tex. Int’l L.J. 355 (2015), available at SSRN.

Kristen Eichensehr recently published a piece entitled Cyberwar & International Law Step Zero that describes an unfolding of events that is by now familiar to international lawyers contemplating the emergence of new military technologies. First, a new military technology X (where X has been drones, cyber weapons, nuclear weapons, lethal autonomous weapons) appears. Nations then ask the “step-zero” question — “does international law apply to the use or acquisition of X”? And the answer is inevitably, “yes, but in some ways existing international law needs to be tweaked to adjust for some of the novel characteristics of X.”

Eichensehr offers a compelling explanation for both the persistence of this question and the recurrent answer. Regarding persistence, she points out that for international law, unlike domestic law, the bound parties—nations—bind themselves consensually. For example, she writes that “The tradition of requiring state consent (or at least non-objection) to international law predisposes the international legal community to approach new issues from the ground up: When a new issue arises, the question is whether international law addresses the issue, because if there is no evidence that it does, then it does not.” In other words, asking the step-zero question is the first step in proceeding down a path that may result in a state’s opting out. Continue reading "International Law and Step-Zero: Going Beyond Cyberwar"

 
 

Abolition Calling

  • Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 U.C.L.A. L. Rev. 1156 (2015).
  • Allegra M. McLeod, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, 8 Harvard Unbound 109 (2013), available at SSRN

Two recent articles by Professor Allegra M. McLeod, her 2013 essay, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, and her 2015 article, Prison Abolition and Grounded Justice, represent the most significant attention to the idea of prison abolition inside the legal academy for at least generation. The first builds toward the second, a powerful and broad gauge intervention in the current exciting moment of reform in criminal law and justice. Together they constitute some the most exciting new work on criminal justice I have read in sometime.

We stand at what increasingly seems like the most promising change point in decades in the criminal justice era. Academics, long out of the action find themselves facing two risks. If we too exuberantly carry forward the radical critique of criminal justice, at a time when the system seeks legitimacy from researchers, we may miss the opportunity to help build a more “evidence based” system and even contribute to an eventual public backlash in favor of a return to “get tough” punitive policies. The other risk is that we accept premature closure of the era of mass incarceration, embracing too many of presumptions about crime, high incarceration neighborhoods, and law enforcement competence that built and sustained the era of mass incarceration.   Professor McLeod’s essay and article are, along with the recent book Captured by Professor Marie Gottschalk of the University of Pennsylvania, Department of Political Science, the strongest efforts yet to push attention to the latter risk, of defining mass incarceration “down” in ways that will allow it to reshape and reformulate itself (perhaps into a system of mass probation or mass jailing). Continue reading "Abolition Calling"

 
 

Bringing Court Reasoning to the Surface

Elizabeth Y. McCuskey, Submerged Precedent, 16 NEV. L. J. __ (forthcoming 2016), available at SSRN.

In the modern age, there is no shortage of information. The internet and the tools it has inspired lead many—myself included—to feel overwhelmed by the sheer volume of what is out there. As a consequence, I came to Elizabeth McCuskey’s Submerged Precedent with some degree of skepticism. McCuskey, after all, argues that even more information—in the form of “submerged” district court opinions—should be made readily available. After reading this carefully researched and artfully written article, however, I am a believer. And I think you will be too.

First, what is “submerged precedent?” Although district courts do not create vertically or horizontally precedential opinions in the strictest sense, McCuskey argues that district court opinions contribute to how decisional law develops. She adopts a broad view of precedent—reaching any court opinion that provides reasoned arguments—which results in a large body of persuasive law. As McCuskey argues, however, the law can only be persuasive to the extent it is available to the parties, and consequently, to courts. This is where submersion comes into play. The question is which district court opinions are available and where. District court judges designate opinions that they deem to be particularly important as “published.” Those opinions then appear on Westlaw (or other legal databases such as Lexis, but for ease, I will refer to only Westlaw). Unpublished district court opinions may also appear on Westlaw, but only if the authoring judge designates them as “written opinions.” What remains “submerged” are reasoned decisions that do not carry these designations. Instead, they can only be found on databases such as PACER, which has limited search functionality and charges a fee for everything other than “written opinions,” or Bloomberg, which while more searchable, is quite expensive. These opinions constitute the submerged precedent about which McCuskey is concerned. Continue reading "Bringing Court Reasoning to the Surface"

 
 

Corporate Intent and Corporate Crime: A Matter of Inference

Mihailis Evangelos Diamantis, Corporate Criminal Minds, 91 Notre Dame L. Rev. ___ (forthcoming 2016), available at SSRN.

The Yates Memo emphasizes the need to fight corporate crime by imposing criminal liability on individual criminal perpetrators. But critiques of corporate deferred prosecution agreements and cascades of examples of corporate criminality involving crimes such as bribery, manipulation, tax evasion and sanctions-busting raise questions about criminal liability of corporations as well as the liability of individual wrongdoers. Whether sanctioning individuals or the corporations they work for would be more effective in achieving deterrence or vindicating society’s interest in ensuring legal compliance and sanctioning legal violations is an empirical question. But improving the rules about corporate criminality does not require abandoning efforts to sanction individual criminality.

The problem Mihailis Diamantis addresses in this article is not a new one: corporations may be subject to civil and criminal liability for their acts, but assigning criminal liability to a corporation depends on an “antiquated gimmick—respondeat superior,” which focuses on attribution of employees’ intent to the corporation, rather than on any real theory. Diamantis states that respondeat superior results in assigning criminal liability to corporations where the criminal acts resulted from the actions of a few rogue employees, and insulating the corporation from criminal liability inappropriately merely because no single employee has the requisite mens rea. He argues that whereas respondeat superior may have made sense as the basis for the attribution of mens rea in the context of small corporations it makes no sense in the context of large complex modern business enterprises. Corporate personhood may be a legal fiction, but it is one to which the law is committed, and therefore it is necessary to be able to identify the mental state of these fictional persons. Continue reading "Corporate Intent and Corporate Crime: A Matter of Inference"

 
 

The Perils of State Standing, Revisited

Alexander M. Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79 (1966).

For those who teach and write about the federal courts and/or constitutional law, Alexander Bickel’s 24-page review of how the Voting Rights Act fared in the Supreme Court – a lucid dissection of South Carolina v. Katzenbach, Harper v. Virginia State Board of Elections, and Katzenbach v. Morgan — would almost certainly be worth a read as a pure matter of historical (and academic) curiosity.

What’s particularly salient about Bickel’s analysis, though, is its contemporary relevance along at least two axes. First, it provides the outlines of a rejoinder to the Supreme Court’s 2013 conclusion that key provisions of the VRA are unconstitutional (for economy of space, I’ll leave this issue to the interested reader). Second, and, even more significantly, it makes perhaps the most emphatic argument against broad state standing in lawsuits challenging the scope of federal government policies — including Virginia’s rejected challenge to the Affordable Care Act’s individual mandate and Texas’s pending challenge to President Obama’s “deferred action” immigration policy. Thus, although no one needs convincing that Bickel was the first among equals, contemporary readers might benefit from this relatively short and less well-known piece of his. Continue reading "The Perils of State Standing, Revisited"

 
 

Too Much of a Good Thing

Jacob E. Gersen & Matthew C. Stephenson, Over-Accountability, 6 Journal of Legal Analysis 185 (2014).

Many an administrative law article ends with a simple and appealing recommendation: “just add accountability!” Accountability, along with institutional expertise and democratic legitimacy, is one of the key yardsticks that frames evaluations of the legal rules and institutions of the regulatory state. Why might judicial deference to agency interpretations of statutes be desirable? Because agencies are more politically accountable than courts. Why might privatization be worrisome? Because corporations are less accountable than agencies. Accountability, like motherhood and apple pie, is something we can all safely get behind.

Or is it? In Over-Accountability, Jacob Gersen and Matthew Stephenson look at the downsides of augmenting the accountability of political institutions. Lots of ways exist to add accountability to governmental decision-making: one could have more elections, or concentrate power in a “unitary” executive, or reduce the power of politically unaccountable Article III courts. As the authors point out, these and other such accountability-enhancing moves might actually have a surprising and perverse consequence: they might exacerbate bad behavior by the government. Continue reading "Too Much of a Good Thing"