Minding American Law

Every law student worth her salt has read, or at least heard of, Oliver Wendell Holmes and The Common Law.1 His formulation of the reasonable man (or, as we call it now, reasonable person) standard structures the foundation of the law school curriculum. Susanna Blumenthal’s Law and the Modern Mind sheds light on a curious figure lurking behind that reasonable man – the “default legal person,” a phrase of Blumenthal’s creation. The default legal person standard, the determination whether people were mentally competent and thus legally responsible, “stood at the borderline of legal capacity, identifying those who were properly exempted from the rules of law that were applicable to everyone else.” (P. 12.) This quirky character “effectively delimited the universe of capable individuals who could be made subject to the prescriptive authority of the reasonable man…. [He] was supposed to remain at the margins of the common law, standing for the presumption of sanity that, jurists expected, would be warranted in most cases.” (Id.) On the one side lay rationality and legal responsibility; on the other, madness and legal exoneration. It was up to jurists, with the aid of mental health doctors, to discern the difference between the two, and therein lies the project of Blumenthal’s book.

When scholars have examined the mind and the law, they have largely centered their investigations upon the criminal law and the lurid, sensational insane murderer. Blumenthal turns our attention instead to private law, where mental capacity suits were “a common occurrence.” (P. 10.) While these cases were less bloody than their criminal law counterparts, they nonetheless spilled over the pages of the press, created voluminous records, and tied judges in evidentiary knots. Continue reading "Minding American Law"

 
 

The Devil is in the Details

Christopher J. Walker, Legislating in the Shadows, 165 U. Pa. L. Rev. (forthcoming 2016), available at SSRN.

It generally starts with a phone call. A Congressional staffer might ring up a federal agency and request the agency’s assistance in thrashing out the details of a new law. Usually, there’s already a working draft of the law; more rarely, the staffer just has parameters or specifications in mind for how the final law ultimately ought to look and what it ought to accomplish. Depending on the situation, the agency might send back a redlined mark-up of the draft bill, or else write a draft of the law from scratch. As the bill wends its way through Congress, the agency hovers on the sidelines, red pen in hand, ready and willing to offer additional technical drafting assistance as needed. The entirety of the exchange between staffer and agency—the request, the response, and any follow-ups—remains informal, off-the-record, undocumented, and confidential, hidden from view from the White House, from OMB, and (needless to say) from the public.

This is the zone of “Legislating in the Shadows” that Christopher J. Walker brings into the light in his thought-provoking forthcoming article. This article builds upon Professor Walker’s recent empirical study for the Administrative Conference of the United States (ACUS), which generated a list of recommendations that ACUS adopted in December 2015. In “Legislating in the Shadows,” Professor Walker moves from description to assessment and critique, deftly distilling from his findings their most pointed—and sometimes disquieting—implications for the doctrines of administrative law and statutory interpretation. Continue reading "The Devil is in the Details"

 
 

Improvising the Future of Worker Mobilization

Michael M. Oswalt, Improvisational Unionism, 104 Calif. L. Rev. 597 (2016).

Massive nationwide mobilization of low-wage workers and their advocates (mainly since 2012, though preceded by the nationwide “Day Without an Immigrant” one-day strikes in 2006 and 2007) has spurred recent changes in state and local labor standards: increases in the minimum wage to fifteen dollars an hour, paid sick leave, and measures to address wage theft, abusive scheduling practices, and misclassification of employees as independent contractors. As Michael Oswalt explains in Improvisational Unionism, the fast food, Fight for 15, and Walmart strikes did not produce bargaining leverage, but instead something possibly more difficult to conjure: public awareness and a sense among workers that something could be and should be done.

The article explains how these one-day strikes were different from many of the labor strikes since the Depression. Some were initiated by a single employee who was angry at poor working conditions and lack of respect, some were inspired by news and social media coverage of protests elsewhere, and some were the result of organizing by community groups; unions only later began to lend support. Workers acted collectively and with the support of unions, yet the workers and the unions both knew that the unions hadn’t a prayer of representing them for purposes of collective bargaining. It is unclear whether this activism – what Oswalt, with his penchant for catchy phrases, calls organizing by unions, but not union organizing – will result in any lasting change beyond the state and local minimum wage increases. But what is clear is that labor unrest is once again a part of the contemporary debate even as its form and goals have altered quite significantly since the strikes of the post-WWII period through the death of the strike in the early 1990s. Continue reading "Improvising the Future of Worker Mobilization"

 
 

Designing Delusion Doctrine

Joshua C. Tate, Personal Reality: Delusion in Law and Science, 49 Conn. L. Rev. __ (forthcoming 2017), available at SSRN.

In Personal Reality, Professor Tate takes us on a wide-ranging tour through cases of delusional testators, empirical psychological studies, and assorted doctrinal reform proposals. This is all in the service of figuring out what to do with the insane delusion doctrine, which gives rise to cases with colorful facts but also judicial applications that raise red flags. In the end, Tate presents us with his solution: transforming the insane delusion doctrine from a sword for will contestants into a shield for will proponents. This is a clever and useful contribution to the lively debate over this doctrine, and this article is a must-read for those intrigued by this area of trusts and estates law.

The article starts with a history of the insane delusion doctrine. Beginning in the early 1800s, the legal doctrine developed concurrently with the scientific concept of monomania, or an irrationally held false belief on one subject that coexists alongside an otherwise rational mind. For example, in the case of Dew v. Clark, a testator believed that his daughter was from infancy an agent of Satan despite her being by all accounts of good character; he otherwise did not possess any other peculiar beliefs. If such a delusion affects the disposition in a will, as the court found that it did in that case, the delusion can lead to the will’s invalidation. The doctrine was not limited to the estates and trusts context, but its development in the realm of contract law took a different path. There, the legal realists made it a primary target, claiming that it was just a proxy for fairness determinations, which should be made explicit. As a result, the doctrine was eventually phased out and replaced with an inquiry geared towards assessing the fairness of the contractual transaction and the effects of undoing it. Continue reading "Designing Delusion Doctrine"

 
 

A Duty To Sell Life-Saving Medicine?

William M. Janssen, A “Duty” To Continue Selling Medicines, 40 Am. J. of Law & Med. 330 (2014), available at SSRN.

Imagine that you have a rare, life-threatening medical condition. You are prescribed a drug that is critical to your survival. You thrive on the prescribed drug and your health improves significantly. However, only one company manufacturers this drug. Unfortunately, due to contamination during the production process, the manufacturer experiences inventory shortages. As a result, you cannot get prescriptions filled as ordered by your doctor, and your health deteriorates rapidly. Does the drug company have a legal duty to continue selling you the prescribed medicine? And, if the manufacturer’s negligence caused the inventory shortage, can you sue the company for tort-based damages? Professor William M. Janssen tackles these intriguing questions in his recent article, A “Duty” To Continue Selling Medicines.

I was fascinated by the dilemma that Janssen lays out in his article. He begins his exploration of the legal duty question with a compelling and heart-wrenching tale. In 2004, a Salt Lake City man was diagnosed with a rare, life-threatening disease, but he thrived after receiving a biological enzyme replacement therapy. In 2010, however, the biologic manufacturer reduced its inventory in order to make space available to produce a different therapy. At around the same time, a virus struck the manufacturing facility, contaminating the product, and in addition, the biologic was somehow contaminated during the production process with tiny pieces of steel, rubber, and fiber. These events led to a shortage of the drug, and the Utah patient received only 70% of his prescribed dosage. When he died, his widow brought suit alleging that the manufacturer failed to use reasonable care to ensure an adequate supply of the biologic. Her claim failed in court based on the finding that the manufacturer had no legal duty to continue to supply the drug. Specifically, the Utah court rejected the widow’s argument that the manufacturer engaged in affirmative wrongdoing by allowing the biologic to become contaminated by the virus, and thereby creating a drug shortage. Rather, the court found that the alleged medicine shortage was merely a failure to act (nonfeasance), and therefore, tort law did not provide a remedy. Continue reading "A Duty To Sell Life-Saving Medicine?"

 
 

Trojan Horse, or Merely a Mask for the Costume Ball?

Edward Kleinbard, The Trojan Horse of Corporate Integration, 152 Tax Notes 957 (Aug. 15, 2016), available at SSRN.

Edward Kleinbard’s The Trojan Horse of Corporate Integration critiques the U.S. Senate Finance Committee’s current proposal for corporate integration. This is an important read for those who have not yet come to grips with the forces at play in contemporary tax policy. Kleinbard refers to these forces as the “political economy agenda” behind the proposal. That agenda has as much to do with appearances relating to tax liabilities as it does with any cash actually being paid.

Most tax policy analysis has historically assumed that it is the amount of tax that is actually paid that matters most. Taxes paid are resources that are no longer available to the private sector; taxes not paid are not available to the public sector. At bottom, the tax policy challenge has usually been seen as balancing the deadweight losses that are inevitable with resources taken away from the private sector with the market failures associated with leaving deployment of all resources in private hands. This view of the impact of taxes is all well and good for economists to theorize about, but does not capture very much of the political decisions taking place in the real world about the type of taxation that should be adopted. Continue reading "Trojan Horse, or Merely a Mask for the Costume Ball?"

 
 

Reconfiguring Property Theory and Legal Rules in the Sharing Economy

Shelly Kreiczer-Levy, Consumption Property in the Sharing Economy, 43 Pepp. L. Rev. 61 (2015).

In this moment of the sharing economy, Shelly Kreiczer-Levy explores why we can no longer think in terms of the traditional categories of private and public or neatly divide objects purchased for personal consumption and property intended for commercial exchange. The lines between these fundamental categories are being dissolved.

The effect is profound and wide-ranging. With the dissolution of boundaries comes the need to revise legal rules and doctrines germane to the regulation and functioning of an economy in which sharing is the norm rather than an occasional aberration. Property law and theory are at the heart of this project of revision and are central to Kreiczer-Levy’s analysis. Continue reading "Reconfiguring Property Theory and Legal Rules in the Sharing Economy"

 
 

Recognizing Disgust, Repudiating Exile

Sara K. Rankin, The Influence of Exile, 76 Md. L. Rev. (forthcoming 2016), available at SSRN.

The discourse of poverty law in the United States is on the rise. Following the Great Recession of December 2007 to June 2009, the odd yet telling disparagement of “law and poverty” by the late Antonin Scalia in September 2008, and the Occupy Wall Street protests that erupted into public consciousness in September 2011, poverty law scholars have published three new casebooks, organized a new series of conferences hosted by law schools in California, Washington, and Washington, D.C., contributed to the theme for other ongoing conferences such as ClassCrits (Toward A Critical Legal Analysis of Economic Inequality), and assembled in well-attended panels at the annual meeting of the Association of American Law Schools.

In The Influence of Exile, Sara K. Rankin, associate professor of law and director of the Homeless Rights Advocacy Project of the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law, contributes to that discourse by theorizing “the influence of exile”—the well-documented drive to exclude disfavored groups of people by restricting their rights to access and occupy public space. (Pp. 1-2.) The influence of exile has taken myriad forms throughout United States history (e.g., Slave Codes, Black Codes, anti-miscegenation laws, and Jim Crow regimes; Asian exclusion laws, Mexican “repatriation” campaigns, and Anti-Okie laws; redlining regulations, policies, and practices; and “Sundown Town” policies and practices), but Rankin argues persuasively that the influence of exile perseverates today in a distinctive “social-spatial segregation [that] further entrenches stereotyping, misunderstanding, and the stigmatization of marginalized groups.” (P. 11.) Her article abounds with insights into these matters. Here I discuss three of them—the visible poor; sociolegal control of public space; and disgust, affect, and ideology. Continue reading "Recognizing Disgust, Repudiating Exile"

 
 

Bringing in the Jury

From the milk carton graphic on the cover to the blurb by Dallas Mavericks owner Mark Cuban, Suja Thomas’s The Missing American Jury is not your typical, staid academic monograph. Indeed, although neither the punchline nor the stridency will come as a surprise to those familiar with her prior work (including my personal favorite—Why Summary Judgment Is Unconstitutional, an article that spawned an entire symposium), the book is a far more powerful, elegant, and concise explication of her long-held view of the unfortunate (and inappropriate) demise of the criminal, civil, and grand juries in contemporary American litigation. More than that, it is also a call for a systemic restoration of the jury, one grounded in a proper appreciation of the structural constitutional role juries were meant to play vis-à-vis the legislative, executive, and even judicial branches of government.

There is simply no denying Thomas’s descriptive claim. At the Founding, juries decided all but the most minor criminal cases. But by 1962, jury trials accounted for only 8.2% of cases tried in federal court. And by 2013, that number had more than halved, dropping to 3.6%. The numbers in state courts are even more bleak—and, in most cases, come on top of the absence of grand juries. And in civil cases, as will surprise absolutely no one, juries decided only 5.5% of federal cases in 1962—and 0.8% by 2013. There are lots of explanations, obvious and otherwise, for these trends. But whereas conventional narratives of the jury’s demise have emphasized the inefficiency, cost, incompetence, and inaccuracy of the jury, the real culprits, Thomas argues, are each of the branches of government, which have “seized the domain of the jury.” As Thomas explains, “the executive charges, convicts, and sentences, despite juries indicting, sentencing, and convicting in the past. The legislature can set damages, although only the jury historically had that power. The judiciary circumvents juries by resolving cases via mechanisms such as the motion to dismiss, summary judgment, judgment of acquittal, and judgment as a matter of law, procedures nonexistent at our Constitution’s founding.” And all of this is on top of what Thomas consciously excludes from her discussion, the move (sanctioned, if not affirmatively encouraged, by all three branches) toward non-trial settlement—whether through plea bargains in the criminal context or alternative dispute resolution in the civil context. Continue reading "Bringing in the Jury"

 
 

The Crimes of Punishment

Crook County: Racism and Injustice in America’s Largest Criminal Court, by Nicole Gonzalez Van Cleve, is a call to action. “Go,” she writes in her conclusion. “Go to the courts. Bear witness to what attorneys and judges do and bear witness en masse. Don’t let them show you trials, sensationalized murder cases, or heroic acts of litigation. Go as an everyday person, wearing jeans, hoodies, and the like, and take some field notes and some court-watching forms while you are at it.” (P. 189.) And then, she writes, act. Vote based on what you see, serve on juries, take pro bono cases, and “slow down the ceremonial charade.” (P. 190.) Nothing less, she says, will help us turn the islands of racial punishment that comprise the nation’s courtrooms into parts of a just system of law.

As that suggests, Van Cleve has written a stark criticism of the criminal courts at the start of the twenty-first century. Her focus is on Cook County, specifically the felony courts at 26th and California, in Chicago. But the book condemns state criminal courts more generally. Her ethnographic study, based on a thousand hours of interviews and observations conducted by students and court watchers, describes the familiar elements of the modern criminal justice system—plea bargains, inadequate representation—but also highlights recurring moments of racial degradation and racist assumptions at the hands of court personnel, moments that Van Cleve argues distort nearly every interaction in the courts. Continue reading "The Crimes of Punishment"

 
 

More Data in the Debate on Colorblind Justice

A new book by Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court, does for criminal courts what cameras have done for police brutality. African-Americans and Latinos have been sharing their stories for decades about the terror of police harassment and brutality in their daily lives. Despite these claims, the notion of unarmed men being unreasonably and pretextually stopped, brutally beaten, and even shot unnecessarily, were regularly denied, minimized, or justified by police. At best, these instances were believed to be rare or accidental in what has been branded as our new “colorblind” or “transracial” society. In this colorblind world, discrimination—if and when it existed—was structural and unintentional. Law enforcement were not agents of racial discrimination but were trying to do a difficult job in an imperfect system. Citizen bystanders armed with cellphone cameras and police department regulations requiring officers to wear cameras have changed our perceptions in ways that personal voices and narratives by the victims themselves never did.

Similarly, racial discrimination in the criminal justice system is not a new claim. The racially disparate “outputs” of the criminal justice system—the grossly disproportional incarceration and criminal supervision rates of people of color—are impossible to ignore. In the face of alarming statistics, scholars, activists, and social critics alike have turned to explanations of structural and unintended racism. The myriad explanations put forth by critics are varied, but most have one thing in common: they support the notion that the legal decisionmakers tend to be colorblind. If racism exists, it exists outside of the criminal justice system and can be blamed on structural inequalities such as poverty and unemployment in communities of color, sentencing guidelines, racial profiling by law enforcement, or ineffective legal representation. One common explanation has been that the criminal justice system is impacted by race discrimination and inequality in other areas of society like education, housing, and healthcare, but that the criminal justice system does not itself produce racial disparity. The explanation that has lost traction over the last several years is the notion that individual professionals in the criminal courts behave in racially biased ways: that they treat black and Latino defendants differently from whites as a response to their race. With good reason, we have been reluctant to point the finger at the well-meaning and well-trained professionals in our criminal courts. This is not the type of claim one should make without proof. Continue reading "More Data in the Debate on Colorblind Justice"