We’re having some intermittent, random, issues with Jotwell’s server, and as a result the Jotwell family of web sites may be slow at times until we resolve them. Some services, especially the special formatting for mobile devices, likely will be turned off during some of testing periods, but we will bring tham all back once things return to normal.
Meanwhile, while debugging is going on, if the site is down or slow, please try again later in the day.
• Brian Tamanaha has stepped down as co-Section Editor of the Jurisprudence Section but will remain a Contributing Editor; Robin Kar will be stepping up to co-edit the section with Brian Bix. Brian T. has been a great editor and he leaves the section in excellent shape and in capable hands.
• This week we rolled out version 1.3 of the Jotwell theme; few if any of the many changes under the hood should be visible to readers, but if you notice anything more odd or out-of-place than usual, please let us know.
• One major consequence of the new theme is that we will be able to have a group of mini-sections sharing virtual real estate in a new section we plan to call ‘Lex”. These mini-sections will provide a home for topics in law which, due to a smaller scholarly production, might not merit publishing a review every month. We’re only just starting to put this together – suggestions for topics we should cover and for people who might be managers of mini-sections are both welcome – so it likely will be a few months before this section debuts.
• Jotwell’s student editors will soon be graduating or heading off to other summer employment. Advertisements for a Miami Law student to serve as summer editor will be going up soon, but any Miami Law student who reads Jotwell and responded to this message would have an inside track.
Jotwell is taking a short winter break. Posting will resume Monday, January 7, 2013.
Happy Holidays! Thank you for reading, and for your support.
Richard H. Pildes & Samuel Issacharoff, Targeted Warfare: Individuating Enemy Responsibility
, New York University School of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 12-40, available at SSRN.
President Obama is a Nobel Peace Prize winner. He also orders missile strikes from drones against targeted individuals in Pakistan, Yemen, and Somalia. According to some vocal critics, such extra-judicial killing makes President Obama a murderer.
This conclusion rests in large part on the premise that the United States is not, properly speaking, in an armed conflict with al Qaeda, the Taliban, and associated forces. As such, the laws and norms of international human rights law (IHRL) and civil law enforcement should apply. Absent exigent circumstances, this legal regime expects judicial authorization of the use of lethal force. President Obama is not a judge, so, when he authorizes a killing, he commits murder. The picture looks different if we concede that the laws of armed conflict (LOAC) apply to the drone strikes. This legal regime requires an attacker to take feasible precautions to ensure that a target is legitimate but does not require judicial authorization for attacks. Continue reading "An Evolving Administrative Law of Targeted Warfare (and the Power of Londoner/BiMetallic)"
Legal academics who write about norms risk becoming armchair anthropologists. But the armchair is precisely the place anthropologists avoid; good ethnography cannot be done alone. As one of my college professors said, “The specific antidote to bullshit is field work.”
E. Gabriella Coleman has spent much of her career doing field work with a computer. Her first monograph, Coding Freedom: The Ethics and Aesthetics of Hacking, is based on an extended study of free software programmers. She lurked on their email lists, hung out in their IRC chat rooms, went to their conferences (she even helped organize one herself), and spent countless hours simply talking with them about their work. The result is a fascinating study of a community substantially defined by its tense engagement with law. (More recently, she has been closely observing the anarchic carnival-esque collective paradoxically known as Anonymous, with equally fascinating results. Continue reading "If Code Is Law, Then Coders Are Lawyers"
Robert Hockett, It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery
, 18 Stan. J. L. Bus. & Fin.
(forthcoming 2012) available at SSRN
It is quite rare to come across a law review article that offers not only a theoretical diagnosis of a major socio-economic problem but also a plan for solving that problem in practice. Putting forward a real, well-reasoned, and detailed policy proposal is always an act of scholarly courage, which inevitably exposes the author to all kinds of criticism. This is especially true where the proposal targets a complex issue in which stakes are high, arguments are heavily ideology-driven, and powerful special interests dominate the agenda. Robert Hockett’s recent essay takes on precisely such a controversial issue: the nation’s continuing problem with underwater mortgages. Since it was posted on SSRN several months ago, this essay has been making serious waves in policy-making circles (and earning its author no love from Wall Street).
Hockett starts with an incisive diagnosis of the root causes and structural dynamics of the mortgage crisis plaguing the nation since 2007. Five years after the bursting of the latest real estate bubble, mortgage debt overhang continues to be one of the primary factors impeding broad economic recovery in the U.S. and, consequently, globally. As Hockett argues, underwater mortgages – or loans on which the homeowner owes more than the current market value of the house – function as the principal drag on the U.S. housing market and the entire economy. Homeowners whose mortgages are underwater default at accelerating rates, leading to mass foreclosure, property degradation, and consequent asset devaluation. Moreover, such homeowners also don’t spend their money on purchases of goods, which depresses the consumer demand that is so vital to a robust economic recovery. According to Hockett, as of the beginning of this year, nearly a quarter of all mortgages in the U.S. were underwater, with an even higher concentration of underwater loans in certain especially hard-hit counties and cities. In effect, these are the loans that, while not technically in default, teeter on the edge of the abyss – and the more of them fall, the wider that abyss gets. Hockett argues that the only practical long-term solution to this problem is to write down the principal on underwater mortgages to post-bust market value levels. That would effectively force the necessary adjustment in asset values and erase the crippling legacy of the pre-2007 real estate bubble. Continue reading "An Unexpected Remedy: Eminent Domain as a Potential Solution to the Mortgage Crisis"
Stephen R. Perry, Political Authority and Political Obligation
in 2 Oxford Studies In the Philosophy of Law
(Leslie Green & Brian Leiter eds., forthcoming 2012) (Univ. of Pennsylvania School of Law, Public Law Reseach Paper No. 12-37, forthcoming) available at SSRN
A right to rule is the mark of a legitimate state or, put differently, of legitimate political authority. The correlate of this right to rule is a general duty, borne by all within a relevant territory, to obey the law laid down by the state – all of the laws, whatever their content. The right to rule excludes any right on the part of citizens to “pick and choose” which among the laws that apply to them to obey. The duty is a defeasible one, which must yield in case the duty-bearer is so circumstanced that a great evil could be avoided only by disobeying the law’s command. But, extraordinary cases aside, the general duty prevails. Such is the traditional view that this paper wants to reorient.
One problem with the traditional view is that it encourages the assumption that there is an acid test of state legitimacy: is there or is there not a general duty to obey? The legitimacy of political authority is thus tied to the existence of a general duty that there is good reason to doubt. The general duty dignifies silly regulations and fussy requirements that it seems morally innocent to ignore. Moreover, each of the theories that have traditionally been marshaled to justify such a general duty of obedience – gratitude, consent, tacit consent, hypothetical consent, fair play, necessity, expertise, association – come up short. On the traditional view, legitimacy can be established by establishing the general duty, and it can be rejected if the general duty lacks a persuasive ground. Continue reading "Perry on Powers"
Joseph Sanders, Matthew B. Kugler, John M. Darley and Lawrence M. Solan, Torts as (Only) Wrongs? An Empirical Perspective
(Brooklyn Law School, Legal Studies Paper No 302, 2012) available at SSRN
A long-enduring question in tort scholarship concerns the purpose of tort law. One camp, anchored by the powerful scholarship of John Goldberg and Ben Zipursky, argues that tort is a law of fault and wrongs, and strict liability is sort of that weird cousin no one likes to talk about much.
In a compelling new sociological study, however, Joseph Sanders tests the idea of tort as wrongs (and only wrongs), and adds to the scholarly debate about tort’s rationales. Sanders persuasively argues that—far from being “at the margin of tort law” —from the public’s perspective, strict liability reigns supreme. In four discrete studies, Sanders assessed whether the public believes fault or wrongdoing is a requirement for tort liability. His thoughtful article presents some surprising findings that should have those of us in the academy taking another look at the purpose of tort law. Continue reading "A Preference for Strict Liability?"
Today we inaugurate a new Jotwell section on Health Law, edited by Associate Dean Kathleen Boozang of Seton Hall Law and Professor Elizabeth Weeks Leonard of The University of Georgia School of Law. Together they have recruited a stellar team of Contributing Editors.
The first posting in the Health Law section is Can the Power of the FDA Be Reprised? by Kathleen Boozang.
Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.
A bad news lawyer story is nothing new. As Deborah Rhode keenly observed over ten years ago: if one listens to the critics, it is easy to get the impression that “lawyers belong to a profession permanently in decline.” Current Canadian headlines only affirm Rhode’s observation. On a near-daily basis, we are gloomily advised of a spate of lawyerly crises. Ongoing problems with access to justice, lawyer incivility, lack of diversity and, most recently, shortages in articling (mandatory apprenticeship) positions, all loom large. Reading the newspaper can be demoralizing to newcomers and seasoned practitioners alike.
The recently published collection of essays in Why Good Lawyers Matter provides a timely counterweight to some of this doom and gloom. To be sure, there are real, pressing problems facing the Canadian legal profession. Thankfully, Why Good Lawyers Matter does not ignore this reality. Rather than “offer an apology” for the legal profession, the central idea behind Why Good Lawyers Matter is “to provide a well-informed and accessible reflection on what lawyers should do and why.” The result is a colorful array of thoughtful ruminations on the topic of lawyering. Continue reading "Good Lawyers, Gone Good?"
In 1959, Wisconsin became the first state to grant collective-bargaining rights to its public workers. The next half-century witnessed the rise of public-sector unions. As union density declined in the private sector, it increased in the public sector such that, by 2010, 7.6 million public-sector employees belonged to a union as compared with 7.1 million private-sector union workers. Many celebrated the public-sector union as the big success story. The fortune of public-sector unions and their members seemed, however, to turn on a dime with the 2010 mid-term elections. The past two years have witnessed some of the most pernicious attacks on public employees and their unions in the past half-century. Too contrived to be ironic, among the first and most virulent of these attacks began in Wisconsin.
Here’s where Professor Joseph Slater’s latest article, Public Sector Labor Law in the Age of Obama, begins. Professor Slater tackles four big issues: (1) recent political attacks resulting in legislative changes in the context of the current economic crisis and debate over public employee pensions; (2) bargaining and legal issues created by the current economic crisis; (3) the debate over whether and to what extent certain categories of employees (specifically Transportation Security Administration employees, police, and firefighters) should have collective-bargaining rights; and (4) the Missouri state constitutional requirement that employees have a right to bargain collectively. Continue reading "Public-Sector Unions, Public Employees: May You Live in Interesting Times"