Jotwell http://jotwell.com The Journal of Things We Like (Lots) Fri, 23 Jan 2015 11:30:51 +0000 en-US hourly 1 The Federalism Argument for Judicial Diversity http://courtslaw.jotwell.com/the-federalism-argument-for-judicial-diversity/ http://courtslaw.jotwell.com/the-federalism-argument-for-judicial-diversity/#comments Fri, 23 Jan 2015 11:30:51 +0000 http://courtslaw.jotwell.com/?p=738 Nancy Leong

For the past several years, commentators have discussed the importance of diversity in the federal judiciary. Yet in at least some respects the federal judiciary is becoming less diverse, not more. Consider the current Supreme Court. Five of the justices—Ruth Bader Ginsburg, Antonin Scalia, Samuel Alito, Sonia Sotomayor, and Elena Kagan—are from the Northeast, and two others—Chief Justice John [...]

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Sharon E. Rush, Federalism, Diversity, Equality, and Article III Judges: Geography, Identity, and Bias, 79 Mo. L. Rev. 119 (2014).

For the past several years, commentators have discussed the importance of diversity in the federal judiciary. Yet in at least some respects the federal judiciary is becoming less diverse, not more. Consider the current Supreme Court. Five of the justices—Ruth Bader Ginsburg, Antonin Scalia, Samuel Alito, Sonia Sotomayor, and Elena Kagan—are from the Northeast, and two others—Chief Justice John Roberts and Justice Clarence Thomas—went to law school on the East Coast and have spent the vast majority of their professional lives in Washington, D.C. Only Justices Stephen Breyer and Anthony Kennedy, who both grew up in California, are from the West Coast. We have no sitting justice from the Northwest or the Midwest, nor do we have a justice who assumed the bench directly from a position in the South.

To the ongoing conversation about diversity in the federal judiciary, Sharon Rush’s recent article offers an intriguing argument in favor of geographic diversity. She explains that the principles of federalism embedded in Article III favor consideration of geographic diversity in federal judicial appointments. Even the simple structure of the judiciary that we take for granted reflects the concern that different geographical regions are adequately represented: the circuits are designed by geography, each state has at least one federal district court judge, and no district combines multiple states. This organization, Rush persuasively explains, “is partly due to efficiency concerns, but is also a result of federalism and state participation in protecting individual liberties.” While Article III does not require this structure, its concern for federalism explains why the judiciary has been designed as it has. Continue reading "The Federalism Argument for Judicial Diversity"

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Cyber-Sexual Harassment http://juris.jotwell.com/cyber-sexual-harassment/ http://juris.jotwell.com/cyber-sexual-harassment/#comments Wed, 21 Jan 2015 11:30:08 +0000 http://juris.jotwell.com/?p=999 Robin West

Danielle Citron’s Hate Crimes in Cyberspace is a breakthrough book. It has been compared, and with good reason, to Catherine MacKinnon’s Sexual Harassment of Working Women. The book makes three major contributions. All are central to furthering the equality of women and men both in cyberspace and elsewhere.

First, Citron convincingly catalogues the range of harms, and their profundity, done to many women and some men by the sexual threats, [...]

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Danielle Citron, Hate Crimes in Cyberspace, Harvard University Press (2014).

Danielle Citron’s Hate Crimes in Cyberspace is a breakthrough book. It has been compared, and with good reason, to Catherine MacKinnon’s Sexual Harassment of Working Women. The book makes three major contributions. All are central to furthering the equality of women and men both in cyberspace and elsewhere.

First, Citron convincingly catalogues the range of harms, and their profundity, done to many women and some men by the sexual threats, the defamation, the revenge pornography, the stalking, and the sexual harassment and abuse, all of which is facilitated by the internet. Women who blog on virtually any topic, certainly on feminist or sexuality sites but also on technical software or engineering sites, or who simply have a presence in cyberspace in any of the various forms the medium permits, can be and frequently are targeted for extreme forms of vitriolic and sexualized assaults, not just from a few isolated and psychopathological bad apples, but by large groups of linked commentators, who quite intentionally and explicitly spread the cyber-hate through organized, networked technologies, and to virtually all corners of the cyberspace. The assaults threaten the victim and sometimes her family members—particularly younger sisters—with sexual injury, rape, dismemberment and murder, and are sometimes accompanied by personal information such as place of employment and addresses. The defamation comes in the form of claims that the victim is incompetent at her work or in her career, hyper-sexualized (e.g., that she enjoys sex with strangers, with home addresses included), or dishonest or fraudulent, which are spread widely, and are intended to professionally injure and humiliate the victim in her workplace or school, and prevent her advancement or hiring in her field. “Revenge pornography” refers to the publication for public consumption and without the victim’s permission of nude photos or videos which may have been made with the victim’s knowledge, but are then widely distributed for the express purpose of exacting revenge, usually because of a break-up. Stalking is in the form of constant harassment and surveillance on line, with the threat of it spilling over into offline stalking as well. The harassment and abuse take all of these forms as well as others: chat rooms created and dedicated to the destruction of the victim’s reputation, or to the expression of hate and sexual insults, or to the mounting of threats intended to intimidate or terrorize. Continue reading "Cyber-Sexual Harassment"

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Measuring Serendipity http://ip.jotwell.com/measuring-serendipity/ http://ip.jotwell.com/measuring-serendipity/#comments Tue, 20 Jan 2015 11:30:58 +0000 http://ip.jotwell.com/?p=680 Mark McKenna

“Serendipity, the notion that research in one area often leads to advances in another, as been a central idea in the economics of innovation and science and technology policy.” Yet, Bhaven Sampat argues, “serendipity is a hypothesis, not a fact,” and it therefore needs to be tested. So Sampat set out to do just that, designing an impressive study to measure serendipity in pharmaceutical research. In this context, Sampat [...]

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Bhaven N. Sampat, Serendipity (Mar. 8, 2014), available at SSRN.

“Serendipity, the notion that research in one area often leads to advances in another, has been a central idea in the economics of innovation and science and technology policy.” Yet, Bhaven Sampat argues, “serendipity is a hypothesis, not a fact,” and it therefore needs to be tested. So Sampat set out to do just that, designing an impressive study to measure serendipity in pharmaceutical research. In this context, Sampat defines serendipity in terms of cross-disease spillover: results are serendipitous when research that was originally funded for one purpose (to target a certain disease) turns out to be useful for another purpose (in the treatment of different diseases).

Sampat tests the serendipity hypothesis by comparing the disease foci of NIH grants to the research output from those grants. Because most of the NIH Institutes and Centers are explicitly disease-oriented, Sampat is able to compare the disease foci of the granting Institutes to the foci of publications that result from the grants, to citations to these publications in patents, and then to marketed drugs associated with those patents. Finally, Sampat focuses on the subset of drugs held by NIH researchers themselves (the Bayh Dole drugs). Publications, patents, and drugs with different disease foci than the granting Institute are deemed evidence in support of the serendipity hypothesis. Continue reading "Measuring Serendipity"

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Rhetoric and Clarity http://family.jotwell.com/rhetoric-and-clarity/ http://family.jotwell.com/rhetoric-and-clarity/#comments Mon, 19 Jan 2015 11:30:14 +0000 http://family.jotwell.com/?p=404 Brian Bix

In “Misused Concepts and Misguided Questions,” Jim Dwyer is working within an important tradition of thinkers (going back at least to George Orwell’s famous essay, “Politics and the English Language”) who correct the sloppy arguments, rhetoric, and terminology the rest of us make, to bring us collectively towards clearer moral and policy arguments. There is also more local and recent precedent [...]

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James G. Dwyer, Misused Concepts and Misguided Questions: Fundamental Confusions in Family Law Debates, 4 Int’l J. Jur. Fam. 239 (2013).

In “Misused Concepts and Misguided Questions,” Jim Dwyer is working within an important tradition of thinkers (going back at least to George Orwell’s famous essay, “Politics and the English Language”) who correct the sloppy arguments, rhetoric, and terminology the rest of us make, to bring us collectively towards clearer moral and policy arguments. There is also more local and recent precedent for this effort. In his critique of the misleading rhetoric of “government intervention,” Dwyer rightly notes (p. 239 n. 2) that he is making essentially the same point that Frances Olsen made in her famous 1985 article “The Myth of State Intervention in the Family,” 18 U. Mich. J. L. Reform 835 (1985). Family law scholarship can certainly use more of the sort of critique that Olsen and Dwyer bring.

Dwyer’s point (like Olsen’s earlier) is that it is wrong and misleading to view the policy choices relating to the regulation of families as being between “government intervention” and “non-intervention.” Government intervention in the family is inevitable, if only to set the baseline rights and duties of the individuals. Especially when one considers the prerogatives spouses have to one another, and the powers parents have over their children, it is hard to discern what “non-intervention” could mean. No government presence at all would entail a sort of Hobbesian world, the war of all against all. Instead, all interactions are regulated and constrained by basic rules creating criminal and civil sanctions for assault, fraud, robbery, rape, murder, etc. No one is suggesting that these “interventions” be removed. Continue reading "Rhetoric and Clarity"

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Entering the Spaces of Power http://equality.jotwell.com/entering-the-spaces-of-power/ http://equality.jotwell.com/entering-the-spaces-of-power/#comments Fri, 16 Jan 2015 11:30:20 +0000 http://equality.jotwell.com/?p=537 Davina Cooper

What has happened to the vocabulary of justification associated with the welfare state – that language of need, equality and social justice so crucial for anchoring and grounding public action? Have the terms of justification become appropriated and re-aligned, articulated to neoliberal concepts of entrepreneurship, discipline and waste, or simply abandoned? And does anything remain of a more progressive set [...]

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Janet Newman, Governing the present: activism, neoliberalism, and the problem of power and consent, 8 Crit. Pol. Stud. 133 (2014).

What has happened to the vocabulary of justification associated with the welfare state – that language of need, equality and social justice so crucial for anchoring and grounding public action? Have the terms of justification become appropriated and re-aligned, articulated to neoliberal concepts of entrepreneurship, discipline and waste, or simply abandoned? And does anything remain of a more progressive set of significations (or chains of meaning)?

In a thoughtful, wide-ranging and nuanced article, the eminent public governance scholar, Janet Newman, explores some ways of diagnosing the present, situating contemporary strategies of governing, in nations such as Britain, in relation to concerns about the securing and unsettling of political consent. What causes people to sign up to or acquiesce in current governance arrangements, and what challenges to this often reluctant acquiescence are posed, as nations struggle to define, mobilise and respond to political moments of ‘crisis’? Continue reading "Entering the Spaces of Power"

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Ending the “Correctional Free Lunch” http://crim.jotwell.com/ending-the-correctional-free-lunch/ http://crim.jotwell.com/ending-the-correctional-free-lunch/#comments Wed, 14 Jan 2015 11:30:37 +0000 http://crim.jotwell.com/?p=943 Jack Chin

Professor W. David Ball has outlined a fundamental pathology of American criminal justice policy and offered a solution. The problem is that states generally pay the full cost of imprisonment, but they do not decide who goes to prison. Instead, most police and prosecutors act at county levels or below. In an era where mandatory sentencing is common, every cop, prosecutor and judge can write any number [...]

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W. David Ball, Defunding State Prisons, 50 Crim. L. Bull. 1060 (2014).

Professor W. David Ball has outlined a fundamental pathology of American criminal justice policy and offered a solution. The problem is that states generally pay the full cost of imprisonment, but they do not decide who goes to prison. Instead, most police and prosecutors act at county levels or below. In an era where mandatory sentencing is common, every cop, prosecutor and judge can write any number of six- or seven-figure checks that someone else must pay. Thus, when a prosecutor makes a charging decision or makes a sentencing argument to a judge, no one involved need consider whether the cost of imprisonment represents a net benefit to society. A long sentence takes nothing from the budget of the judge and prosecutor, just as a short sentence or non-prison sentence does not preserve resources usable for something else. The state offers prosecutors and judges a choice: on the one hand, unlimited free prison; in the alternative, nothing.

The absence of a close connection between decisionmaker and funder might have been tolerable when prisons housed a far smaller share of the population, and the number of offenses in state penal codes were much fewer. But the United States has had record rates of imprisonment in recent years, for an array of crimes, a large number of which are not common law felonies or other traditional moral wrongs. Continue reading "Ending the “Correctional Free Lunch”"

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Putting the Summary Judgment Cart before the Bias Horse in Employment Discrimination Cases http://worklaw.jotwell.com/putting-the-summary-judgment-cart-before-the-bias-horse-in-employment-discrimination-cases/ http://worklaw.jotwell.com/putting-the-summary-judgment-cart-before-the-bias-horse-in-employment-discrimination-cases/#comments Tue, 13 Jan 2015 11:30:03 +0000 http://worklaw.jotwell.com/?p=743 Henry Chambers

In The Trouble with Torgerson: The Latest Effort to Summarily Adjudicate Employment Discrimination Cases, Professor Theresa M. Beiner challenges a relatively recent Eighth Circuit case, Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011), that argues that employment discrimination cases are no poorer candidates for summary judgment adjudication than other cases. Professor Beiner argues that employment [...]

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Theresa M. Beiner, The Trouble with Torgerson: The Latest Effort to Summarily Adjudicate Employment Discrimination Cases, 14 Nev. L.J. 673 (2014).

In The Trouble with Torgerson: The Latest Effort to Summarily Adjudicate Employment Discrimination Cases, Professor Theresa M. Beiner challenges a relatively recent Eighth Circuit case, Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011), that argues that employment discrimination cases are no poorer candidates for summary judgment adjudication than other cases. Professor Beiner argues that employment discrimination cases tend to be ill-suited for summary judgment because they usually involve intent issues, which are ill-suited for summary adjudication. In addition, they involve claims of discrimination, which can be more difficult to resolve on summary judgment than at trial because of issues related to implicit bias.

The article is a part of the Nevada Law Journal’s Symposium on the 50th Anniversary of Title VII. The entire symposium is worth a read, with contributions addressing subjects including harassment, retaliation, and employer policies on using employee criminal records. Indeed, some of the other articles also qualify as TWELL (things we love lots). Continue reading "Putting the Summary Judgment Cart before the Bias Horse in Employment Discrimination Cases"

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“They’re Coming to Get You, Barbara.” http://cyber.jotwell.com/theyre-coming-to-get-you-barbara/ http://cyber.jotwell.com/theyre-coming-to-get-you-barbara/#comments Mon, 12 Jan 2015 11:30:01 +0000 http://cyber.jotwell.com/?p=765 Michael Madison

Julie Cohen’s The Zombie First Amendment does not present itself as a piece of cyberlaw scholarship. It’s a treatment of information governance in the post-industrial, information age through the lens of constitutional law, with a broad range of potential applications—from information privacy to campaign finance reform to intellectual property law to network neutrality. In a sense, it’s a meta-cyberlaw paper. It’s not about [...]

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Julie Cohen, The Zombie First Amendment, 56 Wm. & Mary L. Rev. __ (forthcoming 2015), available at SSRN.

Julie Cohen’s The Zombie First Amendment does not present itself as a piece of cyberlaw scholarship. It’s a treatment of information governance in the post-industrial, information age through the lens of constitutional law, with a broad range of potential applications—from information privacy to campaign finance reform to intellectual property law to network neutrality. In a sense, it’s a meta-cyberlaw paper. It’s not about information technology, but about information as technology.

Any piece by Julie Cohen both demands and rewards a more careful reading than a brief review such as this one can offer. Brevity is today’s currency, however. Begin, then, with the following overview of her argument: Contemporary First Amendment jurisprudence, she argues, is a species of the walking dead, legal doctrine whose form gives the appearance of being a plausibly sentient and responsive entity but whose spirit, soul, and intelligence has been displaced by powers that answer to a different, seemingly unstoppable and almost technological logic. Contemporary information practices have eaten the First Amendment’s brain. Continue reading "“They’re Coming to Get You, Barbara.”"

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The Federal Courts Junior Scholars Workshop http://courtslaw.jotwell.com/the-federal-courts-junior-scholars-workshop/ http://courtslaw.jotwell.com/the-federal-courts-junior-scholars-workshop/#comments Fri, 09 Jan 2015 11:30:45 +0000 http://courtslaw.jotwell.com/?p=720 Mark Tushnet

This is an unusual entry for JOTWELL, because it presents an event rather than a published work of scholarship. But, I think, it’s appropriate for JOTWELL because the event is indeed something I liked (lots). The Federal Courts Junior Scholars Workshop, now an annual event, is representative of an important recent development in legal scholarship—the proliferation of venues for the presentation of work-in-progress by relatively junior scholars. They supplement faculty-organized research workshops, which typically involve the presentation by [...]

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Mark Tushnet

Mark Tushnet

This is an unusual entry for JOTWELL, because it presents an event rather than a published work of scholarship. But, I think, it’s appropriate for JOTWELL because the event is indeed something I liked (lots). The Federal Courts Junior Scholars Workshop, now an annual event, is representative of an important recent development in legal scholarship—the proliferation of venues for the presentation of work-in-progress by relatively junior scholars. They supplement faculty-organized research workshops, which typically involve the presentation by one scholar (not always junior) to a group of faculty and students at the host institution, but with few or no other junior scholars in the field present. Faculty-organized research workshops seem to me to operate on a catch-as-catch-can basis: the people in charge of the workshops contact people they know to locate scholars with work far enough along to be worth presenting. And, finally, these workshops are sometimes try-outs for permanent faculty appointments at the host institution.

The newer junior scholars workshops are different. They are usually, though not always, self-organized (the Harvard-Stanford-Yale junior faculty workshop is an exception, to which I’ll return) by younger scholars in the field. They seek submissions, usually abstracts, for the longer papers that will be presented at the workshop. My guess is that these workshops in their early years may not be all that selective, but as each workshop becomes established selectivity increases. These workshops have multiple purposes. First, at least in self-understanding and advertising, is giving junior scholars the opportunity to present their work before it is finished, to an informed audience whose comments might improve its quality. This is enhanced by the presence of senior faculty in the field as commenters. The senior faculty can sometimes become (unexpected) mentors for the junior faculty, and their commitment of time suggests that they might be available as outside reviewers in tenure and promotion processes. And, of course, the events build a community of junior faculty members in the field, particularly important to a junior faculty member who may be the only scholar in her field at her home institution. The host institution, which has to provide at least a modest subsidy for the workshop, gets some visibility in the legal academy as well. (This has some implications for issues of design, as I’ll note.) Continue reading "The Federal Courts Junior Scholars Workshop"

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Hypothesizing Regulatory Instability http://corp.jotwell.com/hypothesizing-regulatory-instability/ http://corp.jotwell.com/hypothesizing-regulatory-instability/#comments Wed, 07 Jan 2015 11:30:48 +0000 http://corp.jotwell.com/?p=662 Saule T. Omarova

Erik Gerding’s recent book, Law, Bubbles, and Financial Regulation, is an ambitious and fascinating project that seeks to explain how asset bubbles—a perennial staple of economic history—lead to and, in turn, are exacerbated by financial regulation. Gerding makes it clear from the outset that his goal is to move beyond “fixing immediate symptoms” of a financial crisis and try to uncover the fundamental factors that explain how disasters happen. To [...]

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Erik Gerding, Law, Bubbles, and Financial Regulation (2013).

Erik Gerding’s recent book, Law, Bubbles, and Financial Regulation, is an ambitious and fascinating project that seeks to explain how asset bubbles—a perennial staple of economic history—lead to and, in turn, are exacerbated by financial regulation. Gerding makes it clear from the outset that his goal is to move beyond “fixing immediate symptoms” of a financial crisis and try to uncover the fundamental factors that explain how disasters happen. To this end, he advances what he calls the Regulatory Instability Hypothesis, a conceptual framework for explaining how financial markets (traditionally, a realm of private ordering) and financial regulation (the public sphere) get locked into a deadly spiral leading to a crisis. Gerding identifies five key dynamics that define this interaction: the regulatory stimulus cycle, compliance rot, regulatory arbitrage frenzies, pro-cyclical regulation, and promoting of investment herding. His Regulatory Instability Hypothesis holds that these five distinct dynamics pose danger to financial stability by undermining laws and regulations designed to protect it.

In my opinion, one of the most interesting and novel elements of Gerding’s argument is his concept of the “regulatory stimulus cycle.” Various scholars before Gerding wrote about the multiple causes and consequences of various deregulation campaigns, including privatizations of previously public functions and repeal of specific laws viewed as constraining private markets. In the aftermath of the latest financial crisis, in particular, many were searching for specific legal mechanisms that enabled unsustainable growth in risk and leverage within the financial system in the pre-crisis decades. For example, some scholars argued that the latest crisis could be traced directly to the partial repeal of the Glass-Steagall Act in 1999 and/or the passage of the Commodity Futures Modernization Act of 2000—the two most significant deregulatory legislative acts in recent times. Others (including myself) have focused on specific regulatory or legislative actions enabling financial institutions to conduct business activities that fed the pre-crisis asset bubble. Continue reading "Hypothesizing Regulatory Instability"

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We Found Out That Counting Lizard Poop Is Not A Good Way To Count Lizards: Now What? http://adlaw.jotwell.com/we-found-out-that-counting-lizard-poop-is-not-a-good-way-to-count-lizards-now-what/ http://adlaw.jotwell.com/we-found-out-that-counting-lizard-poop-is-not-a-good-way-to-count-lizards-now-what/#comments Tue, 06 Jan 2015 11:30:37 +0000 http://adlaw.jotwell.com/?p=1021 Richard Murphy

Professor Vermeule has a knack for giving irresistible titles to articles that ask deep questions about administrative law—as demonstrated by the essay that is the subject of this little jot, Rationally Arbitrary Decisions (in Administrative Law). The apparent oxymoron grabs attention: Aren’t arbitrary decisions, by administrative-law hypothesis, irrational? Where reasoned decision-making stops, there arbitrariness begins, no?

There [...]

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Adrian Vermeule, Rationally Arbitrary Decisions (in Administrative Law), Harv. L. Sch. Pub. L. & Legal Theory Res. Paper Series (2013), available at SSRN.

Professor Vermeule has a knack for giving irresistible titles to articles that ask deep questions about administrative law—as demonstrated by the essay that is the subject of this little jot, Rationally Arbitrary Decisions (in Administrative Law). The apparent oxymoron grabs attention: Aren’t arbitrary decisions, by administrative-law hypothesis, irrational? Where reasoned decision-making stops, there arbitrariness begins, no?

There is a problem with this neat dichotomy. If you will forgive a tautology, a reasoned explanation for an action, if actually reasonable, shouldn’t depend on reasons that can’t reasonably be given. Sometimes, agencies must act, and they must do so in the teeth of genuine uncertainty. Embedded in the preceding claim is a distinction often drawn between risk and uncertainty. Risk allows for rational assignment of probabilities to outcomes (e.g., there is a 50% chance that a fair coin will turn up heads). Where genuine uncertainty exists, no such assignment of probabilities is possible—e.g., “[no] human actor … has any epistemic justification for attaching probabilities to events that may or may not occur eons in the future.” (P. 4.) When confronting uncertainty, “reasons run out and a relentless demand for further reason-giving becomes pathological.” (P. 2.) Continue reading "We Found Out That Counting Lizard Poop Is Not A Good Way To Count Lizards: Now What?"

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