Monthly Archives: April 2016

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A Right to Participate in the Electoral Process

Robert Yablon, Voting, Spending, and the Right to Participate, available at SSRN.

In McCutcheon v. FEC, Chief Justice Roberts described campaign contributions as a form of participation in electoral politics. His plurality opinion invalidating aggregate limits on contributions to federal candidates concluded that “[c]onstituents have the right to support candidates who share their views and concerns” and that representatives’ responsiveness to such concerns “is key to the very concept of self-governance through elected officials.” As commentators quickly noticed, there was something curious about this paean to democratic representation: the “constituents” the Chief Justice described were not eligible to vote for most of the candidates they were funding. They were not, in other words, constituents in the usual sense. Was this a mere “oops”? A deliberate, if subtle, move to reshape campaign finance law? Something else?

Robert Yablon’s insightful new article, Voting, Spending, and the Right to Participate, offers a fresh approach to this conundrum. Rather than dismiss McCutcheon’s arguments about political participation as rhetoric or subterfuge, Yablon engages the opinion’s suggestion that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders,” a right that may be exercised through the franchise or through monetary contributions. What would it mean, he asks, for our disparate law concerning voting and spending to instead conceptualize both as forms of participation in the electoral process? Continue reading "A Right to Participate in the Electoral Process"

 
 

Rethinking Parties and Politics in Administrative Law

Michael A. Livermore, Political Parties and Presidential Oversight, 67 Al. L. Rev. 45 (2015).

Ever since courts have recognized the legitimacy of political influence on agency policymaking, scholars have struggled to formulate a model of Administrative Law that describes an appropriate balance between such influence and agency expertise. The current reigning consensus – the Presidential Control Model – fails to satisfy many critics, especially in light of recent Presidential assertions of greater and greater power over the apparatus of administrative government. More recently, the heightened partisanship of federal government has added to concerns that presidential control does not assure that the administrative state is sufficiently responsive to the general polity and the public interest. Thus, it is surprising that up until now few scholars have explicitly analyzed the role of political parties in the operation of the federal administrative state, and none have tried to use the workings of contemporary parties to formulate a normative account of how politics should inform agency policymaking. Political Parties and Presidential Oversight by Michael Livermore takes a large and impressive first step to fill that analytic vacuum.

Livermore begins by reviewing the replacement of the local, patronage-driven party system that existed prior to the Kennedy Administration, with the modern national, professional and programmatically driven party system. He then summarizes arguments that the modern party system, along with candidate-centered politics, will drive Presidential elections towards candidates that implement the policy preferences of the majority or, more precisely, the median voter. Livermore rejects the candidate-centered model because Presidents do not seem to implement unifying policy agendas that reflect the position of the median voter. He therefore reinvigorates a theory of “responsible party government.” Continue reading "Rethinking Parties and Politics in Administrative Law"

 
 

Dismissing Discrimination

David Schraub, Dismissal (2016), available at SSRN.

In a recent article in The New York Times Magazine, sociologist Alice Goffman – author of an award-winning book that followed a group of African-American men in Philadelphia over six years – addressed accusations that her book presents an implausible account of police practices. When the magazine reporter sought corroboration from the police themselves about certain of these alleged practices, Goffman challenged the notion that “[t]he way to validate the claims in the book is by getting officials who are white men in power to corroborate them.” She continued, “The point of the book is for people who are written off and delegitimated to describe their own lives and to speak for themselves about the reality they face, and this is a reality that goes absolutely against the narratives of officials or middle-class people. So finding ‘legitimate’ people to validate the claims – it feels wrong to me on just about every level.”

In his new article, Dismissal, David Schraub takes aim at exactly the phenomenon that Goffman describes: the act of dismissal, by which “the interpretive frames proffered by [a] claimant [are portrayed] as illegitimate and the testimonial offerings of the claimant as irrational.” (p. 28.) (To be clear, neither Schraub nor this review engage with the substance of the criticisms of Goffman’s work, but rather to use her comments about corroboration and validation as a jumping-off point. Schraub does not discuss Goffman in his article.) Schraub is concerned both with courts’ dismissal of novel legal claims under Federal Rule of Civil Procedure 12(b), and with dismissal in its broader sense, “a decision (in any deliberative context) to dispense with a proffered claim prior to considering its merits.” (p. 3.) Continue reading "Dismissing Discrimination"

 
 

Shades of Discrimination Brought to Light

Nancy Leong, Negative Identity, 88 S. Cal. L. Rev. 1357 (2015).

Justice Kennedy raised some hackles when he said in Obergefell v. Hodges that “[m]arriage responds to the universal fear that a lonely person might cry out only to find no one there.” Some wondered how Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor—one widowed, one never married, and one long-single—must have felt to sign on to an opinion grouping them together with other souls “condemned to live in loneliness.” Others criticized the opinion’s rhetoric as unnecessarily demeaning to life outside of marriage. Justice Kennedy’s disparagement of single life might have been lamentable, but it usefully highlights a common experience of those who do not participate in the social institutions—sex, partnership, organized religion, and child-rearing—that society deems fundamental. Such individuals often find themselves the targets of marginalization, animus, or unfair treatment under the law.

In her thought-provoking article, Negative Identity, Nancy Leong brings together several of these identities—atheist, asexual, single, and childfree—and builds a case for their protection. Identity is a complicated subject and Leong takes care to define and defend her categories. Leong uses the term “negative identity” to refer to those identities marked by indifference or antipathy to something that much of society views as fundamental. These identities are negative in terms of opposition but not in terms of absence: the childfree, for example, do not merely lack children; they have chosen not to have children based on emotional commitments, personal and professional freedom, environmentalism, or simply a desire to allocate personal resources to other causes. By defining the term in this way, Leong means to distinguish between those who have affirmatively taken on these identities from those with only passing affiliation with these identities. That is, the term is intended to distinguish between those who consciously choose to forego sex and those who are celibate because they are between intimate relationships. Likewise, “negative identity” focuses on those who have chosen to forego parenthood from those who may desire children, but who have not yet acted upon these desires or been successful in their attempts at parenthood. Continue reading "Shades of Discrimination Brought to Light"

 
 

Reviving the Dead Hand After Repeal of the Rule Against Perpetuities

Reid Kress Weisbord, Trust Term Extension, 67 Fla. L. Rev. 73 (2015).

Over the past few decades, most states have repealed the Rule Against Perpetuities or significantly extended the time period during which trusts may continue to exist. As a result of these changes, estate planners frequently attempt to extend the terms of trusts that were originally created to comply with the Rule Against Perpetuities. They primarily do this through modification doctrines, such as equitable deviation.

In this article, Dean Reid Kress Weisbord argues against the use of modification doctrines to extend the duration of trusts beyond the Rule Against Perpetuities period that was in effect when the trust was created. In addition, he recommends that the drafters of the Uniform Trust Code (the “UTC”) modify the UTC to clarify that modification doctrines do not permit the addition of beneficiaries to the trust who were not identified in the original trust instrument. Continue reading "Reviving the Dead Hand After Repeal of the Rule Against Perpetuities"

 
 

Boilerplate and the Boundary Between Contract and Tort

Margaret Jane Radin’s latest work, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law and a companion article and book chapter interrogate how now-ubiquitous fine print buried deep in consumer contracts affects the rights of ordinary Americans. This boilerplate can take many forms. It includes “extravagant exculpatory clauses,” choice-of-law provisions, and waivers of consequential damages. Frequently, and perhaps most importantly, it also includes agreements to arbitrate—and, in so doing, entails consent to eliminate the background protections we take for granted, including juries, reasonable filing fees, rights of appeal, rules of evidence, the ability to join with similarly aggrieved individuals, and stare decisis. Radin finds this fine print deeply troubling. She argues that, considered in tandem, these contractual terms make certain remedies for transgressions practically unavailable and thereby undermine individual autonomy, degrade democratic principles, and, ultimately, subvert the rule of law.

Because Radin is a contracts scholar—and her recent work is, on the face of it, about contract law—it would be easy for those of us who traffic in tort to miss the scholarship’s significance. That would be a mistake. Continue reading "Boilerplate and the Boundary Between Contract and Tort"

 
 

Practice Makes Perfect: Weaving Together the Fabric of the Virtuous Biller

Randy D. Gordon & Nancy B. Rapoport, Virtuous Billing, 16 Nev. L.J. 698 (2015).

During the holiday season, I think of Santa evaluating who is naughty and nice. Like Santa, senior lawyers in law firms make end-of-the-year determinations when deciding on bonuses, salary increases, promotions, and distributions. Unlike Santa who judges the character of children on his list, law firm partners may focus more on objective measures of worth. In law firms this often amounts to billable hours collected and business generated. In firms, new lawyers quickly learn what is valued within the organization and many shape their conduct to maximize their income and promotion possibilities. As explained by Eliyah Goldratt, the Israeli physicist and management consultant, “Tell me how you measure me and I will tell you how I will behave.”1

In their recent article, Virtuous Billing, Randy D. Gordon and Nancy B. Rapoport, recognize the role of incentives and performance management in law firms. The authors examine firm conduct and billing practices through the lens of virtue ethics. I especially like the article and commend it to you because it provides positive recommendations on steps that firm leaders and other interested parties can take to improve the quality of work for clients and the quality of life of lawyers. Continue reading "Practice Makes Perfect: Weaving Together the Fabric of the Virtuous Biller"

 
 

It’s Time To Revisit The Tax Treatment of Working Childcare Costs

Shannon Weeks McCormack, Over-Taxing the Working Family: Uncle Sam and the Childcare Squeeze, 114 Mich. L. Rev. ___ (2015), available at SSRN.

Childcare costs have soared in recent years while wages remain stagnant. To make matters worse, relief by provided by the tax code is extremely limited. Parents may be able to claim a tax credit for a portion of their childcare costs and may be able to divert limited funds to a pretax flexible spending account. But in many cases, these tax benefits capture only a minor portion of parents’ costs. It is no surprise, then, that with an election year upon us, a number of proposals to expand the current childcare tax credit have resurfaced in recent months. These proposals echo years of debate over whether the tax system discourages work by secondary earners and treats working parents unfairly vis-à-vis their non-parent counterparts.

But current proposals to modestly expand the childcare credit will make only a small dent in working parents’ childcare costs. Recognizing the inadequacy of such an approach, Shannon Weeks McCormack proposes a more fundamental reform in her forthcoming article, Over-Taxing the Working Family: Uncle Sam and the Childcare Squeeze. The childcare tax credit, she argues, should be replaced with an above-the-line deduction for childcare expenses that is not subject to phase-outs or dollar limitations. In essence, Weeks McCormack calls for according childcare expenses the same treatment as deductible trade or business expenses. Continue reading "It’s Time To Revisit The Tax Treatment of Working Childcare Costs"

 
 

Can “Legitimate Expectations” Ever be “Rights”?

Florian Dupuy & Pierre-Marie Dupuy, What to Expect from Legitimate Expectations? A Critical Appraisal and Look into the Future of the ‘Legitimate Expectations’ Doctrine in International Investment Law, in Festschrift Ahmed Sadek El-Kosheri: From the Arab World to the Globalization of International Law 273-298 (Mohamed Abdel Raouf, Philippe Leboulanger, & Nassib G. Ziadé eds., Kluwer 2015).

The trouble with the amiable practice of collections of essays in honor of admired scholars is that they are so often published in a stand-alone volume rather than in journals of record, with the result that they may be lost to all but initiates who happen to know of its existence. In the just-published Festschrift for Professor Ahmed Kosheri, the preeminent Egyptian international lawyer of his generation, this pearl of an essay deserves a better fate. It addresses fundamental issues with respect to the degree of legal stability to which a foreign investment is entitled from a host state in light of the instruments applicable to its entry, and suggests broad guidelines to resolve the hesitations of the caselaw to date.

The authors are a father-son team of French authors, each exceptionally erudite and polyglot. Florian, the son, holds degrees from three major law faculties (Paris, Humboldt, and Cambridge). In 2007, he presented a thesis for joint recognition by Paris (Panthéon-Assas) and Humboldt which is of direct relevance to this joint contribution, entitled La protection de l’attente légitime des parties au contrat – Étude de droit international des investissements à la lumière du droit comparé. Pierre-Marie has for long been one of the bright stars on the firmament of international legal scholars and prominent among the lawyers who practice before the International Court of Justice. He has also served as arbitrator on tribunals deciding important disputes between states and foreign investors arising under bilateral investment treaties and thus applying the law referred to in their title. Continue reading "Can “Legitimate Expectations” Ever be “Rights”?"

 
 

Can Property Principles Save International Law?

Joseph Blocher & G. Mitu Gulati, A Market for Sovereign Control, Duke L.J. (forthcoming 2016), available at SSRN.

International law currently finds itself in a bit of a jam.  The time-honored principle of territorial integrity grants nations near-absolute control over their borders. Central governments, for example, routinely reject boundary changes proposed by neighboring states or internal secessionist movements. At the same time, however, the increasingly relevant principle of self-determination demands that all peoples have the opportunity to choose their own national affiliations, govern themselves, and develop free political institutions.

What happens when these two doctrines come into tension?  When does the desire for self-determination and the search for better governance trump the inviolability of international borders? And how should the international community respond when a local region seeks to escape an unjust parent country?

In a new article, Joseph Blocher and Mitu Gulati propose an audacious solution to this defining quandry of modern international relations. Blocher and Gulati attempt to solve the problem of international boundary disputes and increase good governance by introducing property theory into the arena of international law.  The crux of their idea is that a nation’s control over its borders should become subject to a liability rule rather than a property rule if it discriminates against one of its constituent regions. Continue reading "Can Property Principles Save International Law?"

 
 

Did Public Interest Lawyers Undermine the New Deal Order?

Paul Sabin, Environmental Law and the End of the New Deal Order, 33 Law & Hist. Rev. 965 (2015).

Paul Sabin’s recent article puts elite liberal lawyers at the center of the story of the demise of the “New Deal order” – that “period of time between the 1930s and 1970s when the federal government, in close partnership with business and labor organizations, greatly expanded its coordination of the national economy and individual industries, as well as its development of natural resources and public infrastructure projects.” (P. 969.) Sabin draws on a wealth of oral histories, interviews, and archival materials to provide an engaging history of public interest environmental lawyers and organizations – including the Environmental Defense Fund, the Center for Law and Social Policy, the Natural Resources Defense Council, and the Sierra Club Legal Defense Fund. These lawyers and law firms challenged New Deal assumptions; in doing so, Sabin argues, they were as key to the fracturing of New Deal-style liberalism as its conservative critics.

Sabin describes how environmental lawyers, like other public interest lawyers in the 1960s, were inspired by the successes of the NAACP and ACLU in using litigation for social change. And while they shared Americans’ growing distrust of government action in the Vietnam War era, they were also specifically influenced by the mid-century critique of administrative governance as slow, rule-bound, unresponsive, and/or corrupt. Agreeing that the New Deal agencies tasked with protecting the public interest had failed to do so, environmental lawyers pointed specifically to the ways in which Americans and their environment were harmed by federal officials’ pursuit of centralized planning and economic growth. These elite lawyers with stellar credentials, who three decades earlier might have pursued their interest in public service through jobs at the agencies and commissions, now sought to become an external check on agency governance. Continue reading "Did Public Interest Lawyers Undermine the New Deal Order?"

 
 

Rethinking Civil Settlement

J.J. Prescott and Kathryn E. Spier, A Comprehensive Theory of Civil Settlement, N.Y.U. L. Rev. (forthcoming 2016), available at SSRN.

How should we understand settlement in civil litigation? In A Comprehensive Theory of Civil Settlement, J.J. Prescott and Kathryn Spier rethink civil settlement and take a significant step forward in the scholarly conversation about this topic. Generally, settlement has been understood as an alternative to a judicial disposition in the case. In this view, settlement is a zero-sum event from a systemic standpoint. (Of course, the parties negotiating a settlement may split the differences between them and both receive gains, but I am speaking of the court’s perspective here.) Prescott and Spier provide a new way of thinking about settlement as a continuum rather than as an either/or event that ends the dispute. At one end of the continuum is litigation according to the default procedural and substantive rules. On the other end is the termination of the dispute with an agreement. In between are many smaller agreements that parties can, and do, reach in moving toward resolution of their dispute. In explaining the implications of this insight, this article ties together disparate scholarship in a neat way. They support their argument with evidence from a sample of cases in New York’s summary jury trial docket.

The first step in their analysis is to define a settlement. Prescott and Spier define settlement as any agreement between the parties that improves their position in the litigation by some combination of (1) reducing adjudication costs, (2) mitigating losses due to risk, or (3) maximizing ex ante returns. This agreement need not end the litigation. A high-low agreement, for example, sets a range for the outcome of the case because the parties agree that regardless of what the adjudicator decides, they will set a cap and a floor to the damages. Still, the case goes to trial. In the binary view, a high-low agreement does not count as a settlement, but it is an agreement between the parties that mitigates losses due to risk. Prescott and Spier categorize partial settlements (that is, settlements that are on the continuum between no agreement and resolution) into three types: award-modification agreements, issue-modification agreements, and procedure-modification agreements. Continue reading "Rethinking Civil Settlement"

 
 

Comparing Milks

Yoriko Otomo, The Gentle Cannibal: The Rise and Fall of Lawful Milk, 40 Austl. Fem. L. J. 215 (2014).

In her splendid article, The Gentle Cannibal: The Rise and Fall of Lawful Milk, SOAS, University of London Lecturer in Law Yoriko Otomo tackles the fascinating subject of state control over milk production in three jurisdictions—France, England, and India—which all embraced milk at some point in their history as an essential food to support their nation, both nutritionally and economically. She shows that in these countries, law shaped and promoted the commercialization of cow’s milk, shifting the locus of milk production from the domestic sphere to the industrial and negatively impacting rates of breastfeeding.

Why analyze a substance as seemingly local as milk from a comparative legal perspective? Otomo argues that “milk feeding — through the control of both the ‘flow’ of breastmilk and of cow’s milk — undertakes the juridical work of drawing consumers into a regulatory and ideological system, making them lawful subjects.” In other words, milk production and regulation have historically been intertwined with the development of the law and political economy of the modern nation state. Otomo’s three cases in point are: the nineteenth century French regulation of the wet nursing profession, which brought the state into the domestic sphere; the rise and fall of the English Milk Marketing Boards in the twentieth century, which ensured standardized milk prices and increased dairy consumption across the United Kingdom; and postcolonial India’s “White Revolution” in the 1970-90s, which transformed India into the world’s largest milk producer. Continue reading "Comparing Milks"

 
 

How Do Creators Respond to Risk?

Andres Sawicki, Risky IP , Univ. of Miami Legal Research Paper No, 16-18 (2016), available at SSRN.

Intellectual property laws govern activities that are inherently risky. Authors and inventors can only estimate the consumer demand for their contributions. And many creative activities run the risk of infringing existing IP rights. Accordingly, it is essential for policymakers and scholars to understand how creators think about risk.

To date, most people who have written about IP law and risk have assumed that creators will be risk averse. In a new paper, Andres Sawicki challenges these accounts and argues that the kinds of people that IP law typically regulates—creative people—tend to be risk seeking. Accordingly, where others saw the risk inherent in IP as a problem, Sawicki sees it as potentially beneficial. Continue reading "How Do Creators Respond to Risk?"

 
 

The Value and Limits of Free Exercise Doctrinalism

  • Frederick Mark Gedicks, Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, G.W. L. Rev. (forthcoming, 2016), available at SSRN.
  • Michael A. Helfand, Identifying Substantial Burdens, U. Ill. L. Rev. (forthcoming, 2016), available at SSRN.

In recent years, a lot of the best and most interesting scholarship on law and religion has been on the theoretical side. A good deal of thought and ink has been spent, for example, asking whether religion is “special” for purposes of constitutional law, or whether there is not (or no longer) a sufficient or justifiable distinction between religious beliefs and other closely held beliefs. Certainly that question can have a powerful payoff in the law, but for the most part writers addressing that question have treated it at a higher level of abstraction, and acknowledged that the question might be viewed differently and answered more prosaically with the specific text, history, and jurisprudence of the United States Constitution in mind.

Now, it appears, we are back to doctrine—and, more specifically, free exercise doctrine, whether constitutional or, and perhaps especially, statutory. The two pieces discussed here—Frederick Mark Gedicks’s Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, and Michael A. Helfand’s Identifying Substantial Burdens—are fine examples of the phenomenon. Continue reading "The Value and Limits of Free Exercise Doctrinalism"

 
 

Rights, Virtues, and Natural Law

John Finnis, Grounding Human Rights in Natural Law, 60 Am. J. Juris. 199 (2015).

Of the many reviews and critical notices that greeted the publication of Natural Law and Natural Rights [NLNR] in 1980, one of the most influential, and thus far unchallenged, was that by the distinguished American theologian Ernest Fortin, entitled The New Rights Theory and the Natural Law. In it, Fortin set out many of the principal criticisms that readers oppose to NLNR’s doctrines to this day: the book’s appearance of distance from traditional Aristotelian-Thomist concerns and modes of explanation; its focus on natural right in place of natural law (and the differences between the two concepts); the absence of the virtues from the book’s moral philosophy; its apparent surrender to liberal individualism.

In the years since 1980, John Finnis has amplified — sometimes considerably — upon these matters, including in the 2011 ‘Postscript’ to the second edition of NLNR, but until now had not directly replied to Fortin’s review. This long essay incorporates that reply. Whilst that Postscript served as an opportunity to comment upon and clarify the intention of many of the book’s passages, the present essay is closer in character to the ‘Postscript’ written by Hart for the second edition of The Concept of Law, focusing on the position of one critic in particular. Continue reading "Rights, Virtues, and Natural Law"

 
 

The Judiciary’s Role in Hard (Health Care) Cases

Neal Devins, Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government, 69 Vand. L. Rev. _ (forthcoming 2016), available at SSRN.

On March 2d, the US Supreme Court heard oral arguments in Whole Woman’s Health v. Hellerstedt, which will determine whether “TRAP laws” (targeted regulation of abortion providers) impose an unconstitutional undue burden on access to abortion, a medical or surgical procedure accessed by approximately one-third of US women of reproductive age. The Texas laws at issue require doctors who provide abortions to have admitting privileges in a hospital within 30 miles of their clinic, and abortion clinics that would otherwise operate like doctors’ offices are required to adhere to extensive ambulatory surgery center licensure requirements. The cumulative effect of these laws would be to leave 25% of Texas’s clinics operating — ten clinics for the state that is the second largest in land mass and population in the US. This opinion could decide whether the constitution protects a merely theoretical right to access abortion rather than a right that can actually be exercised by women across all parts of the nation. In Rethinking Judicial Minimalism, Professor Devins analyzes how this precipice has been reached from a judicial process and political perspective and reconsiders judicial minimalism as the superior procedural approach for contentious cases.

Planned Parenthood v. Casey and Roe v. Wade are the two key decisions interpreting the Due Process Clause to protect women seeking abortions from prohibitive state regulation. In Professor Devins’ view, Roe was a “maximalist” decision that worked legislatively by creating a formal regulatory structure, and Casey was a “minimalist” decision that correctly discarded Roe’s “trimester framework” and allowed states to follow the vaguer “undue burden” standard, which meant that states could regulate abortion if they did not place substantial obstacles in the path of a woman seeking an abortion. Professor Devins notes that the minimalist approach to judicial power that he has advocated seemed the best mechanism for allowing the deliberative democratic process to reach policy compromises on hard questions. In the wake of Roe and Casey, many notable scholars and jurists (including Justice Ginsburg) agreed that states should have reached their own conclusions without the Court crafting a decision that delineated how and when states could regulate the abortion procedure, thereby usurping states’ deliberative and political processes. Continue reading "The Judiciary’s Role in Hard (Health Care) Cases"

 
 

Un-“Civilized”: On the Criminalization of Raced and Gendered Poverty through Child Support Enforcement

Tonya L. Brito, David J. Pate Jr., and Jia-Hui Stefanie Wong, “I Do for My Kids”: Negotiating Race and Racial Inequality in Family Court, 83 Fordham L. Rev. 3027 (2015).

“I Do for My Kids” is a timely and thoughtful empirical exploration of racialized access to justice issues with within family courts. Why then, one might ask, should it provide the basis for a jot in the area of criminal law? The answer has to do with the punitive means some jurisdictions are utilizing to enforce the payment of child support obligations.

Using original research, including in-person, ethnographic observations and interviews at multiple sites, the authors detail how “[c]ivil incarceration pursuant to an order of contempt is commonly used as a remedy to enforce child support orders against indigent noncustodial parents.” (P. 3035.) In this work, Professor Brito and her co-investigators, paint a riveting but disturbing portrait of how low-income—and typically black—fathers must negotiate the demands of law and identity within the space of child support enforcement hearings. Continue reading "Un-“Civilized”: On the Criminalization of Raced and Gendered Poverty through Child Support Enforcement"

 
 

Contextualizing the Harms Caused by Appropriation of Indians’ Intangible Cultural Property

Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of (Cultural) Appropriation, Tex. L. Rev. (forthcoming 2016), available at SSRN.

Laguna Pueblo writer and critic Paula Gunn Allen has argued that “[t]he American Indian poet is particularly bereft of listeners.” This is due to the fact that she “has difficulty locating readers/listeners who can comprehend the significance of her work, even when she is being as clear and direct as she can be, because . . . differences in experience and meaning assigned to events create an almost impossible barrier.”1 It occurred to me in reading and Angela Riley and Kristen Carpenter’s “Owning Red: A Theory of (Cultural) Appropriation,” that Indians face similar problems in telling the story of the harms caused by cultural appropriation, particularly those harms relating to intangible aspects of Native identity.

To non-Indians raised on tales of Wild West cowboy and Indian skirmishes and myths of generous Pilgrims who shared their bounty with Indians during the first Thanksgiving—and particularly to white Americans cloaked in racial privilege—fashion designers’ appropriation of Native dress and beer companies’ use of the names of deceased Indian heroes may seem innocuous—or even—as is sometimes argued—like genuine homage. Professors Carpenter and Riley provide the backstory needed to comprehend and contextualize these harms. They also offer compelling ideas for a solution. Most importantly, they show how contemporary appropriations of Native identities are part and parcel of a history of disrespect of Native property rights, including the right to cultural identity—and further that It is because of this colonial history of never-ending loss that non-Indian Americans so often fail to perceive the losses caused by appropriation. And conversely, it is precisely because of this history that the losses caused by appropriation are so devastating to Native peoples and individuals. Continue reading "Contextualizing the Harms Caused by Appropriation of Indians’ Intangible Cultural Property"

 
 

Innovation & Equality: An Uneasy Relationship

Olivier Sylvain, Network Equality, 67 Hastings L.J. 443 (2016), available at SSRN.

From the halls of Congress to the cocktail parties of Davos, “innovation” is celebrated as the central rationale for Internet policy. Whatever its utility decades ago, the term is now overused, a conceptual melange that tries to make up in capaciousness what it lacks in rigor. Fortunately, legal scholars are developing more granular accounts of the positive effects of sociotechnical developments. Olivier Sylvain’s Network Equality is a refreshing reminder that Internet policy is more complex than innovation maximization. Sylvain carefully documents how access disparities interfere with the internet’s potential to provide equal opportunity.

Network Equality makes a critical contribution to communications law scholarship because it questions the fundamental terms of the last twenty years of debates in the area. For at least that long, key internet policymakers have assumed what Sylvain calls the “trickle-down theory of Internet innovation”—that if policymakers incentivized more innovation at the edge of the network, that would in the end redound to the benefit of all, since increased economic activity online would lead to better and cheaper infrastructure. Now that once-“edge” firms like Facebook are rich enough to propose to dictate the terms of access themselves, this old frame for “net neutrality” appears creaky, outdated, even obsolete. Sylvain proposes a nuanced set of policy aims to replace it. Continue reading "Innovation & Equality: An Uneasy Relationship"

 
 

Why Directors Don’t Direct

Adam Badawi, Influence Costs and the Scope of Board Authority, 39 Iowa J. Corp. L. 675 (2014), available at SSRN.

Over four score years ago, William O. Douglas told us that directors don’t direct. Since then, there have been multiple attempts to enable directors to direct the corporations they nominally manage, often by proposing or mandating changes in the composition of the board. Directors’ backgrounds, biases, opportunism and group behaviors have been diagnosed as both the cause and cure to the problem of director inaction.

Rather than examining directors, Adam Badawi shifts attention to those outside the board to explain why it is in the interest of the business that directors don’t direct. His focus is not on coalitions within the board, but on lobbying of the board by others in the corporation. So that these other interests don’t spend their time attempting to influence the board (and instead concentrate on activities more profitable to the business), it is essential that boards exercise little of the authority they possess. By delegating authority to management, boards constrain the investment management makes in lobbying the board. Continue reading "Why Directors Don’t Direct"