Following “the Dobbs leak,” I re-read Suzanna Sherry’s Our Kardashian Court (and How to Fix it). The piece is, sadly, prescient in discussing our broken Supreme Court. Her diagnosis of the Court’s dysfunction—cults of personality—rings truer following the leak than any Presidential Commission’s report. Her prescription—statutorily mandating that rulings be communicated in per curiam opinions without concurrences, dissents, or vote counts—rings more achievable than court-packing or its derivations do. Further, her piece—more than any I have grappled with for some time—caused me to reflect more deeply upon what the rule of law means in a profession dominated by legal-realist jurisprudence. I urge you to give this piece a read soon.
It is no secret that the Court suffers from greater legitimacy concerns and internal dysfunction than in the past. Many have proffered structural causes and solutions for these concerns. Sherry argues that we should focus on the celebrity status of the Justices as an important causal factor in these breakdowns. The Court is now “Keeping Up with the Kardashians Justices.” That is the problem, in her view. Continue reading "Justice As Celebrity"
“Why does our system pressure innocent people into pleading guilty?” (P. 5)
When people think about how the criminal justice system works, they might think about a trial in a courthouse, with a judge, jury, lawyers, and a defendant trying to beat the case. While this might have been the expectation of the framers, or indeed how criminal justice worked at some times and in some cases, things are very different for most people encountering the system today. Rather than enforce constitutional rights to ensure justice is carried out, what happens today is pure injustice, characterized by individuals pleading guilty to crimes they did not commit, prosecutors leveraging powers and discretion against defendants, and judges and defense counsel who sometimes seem more interested in cutting and approving deals than seeing justice upheld. Rather than arriving at the truth, the system is obsessed with efficiency, with disposing of one case and moving on to the next. The reason innocent people are pressured to plead guilty, asserts Carissa Byrne Hessick, is “because everyone is pressured into pleading guilty. Ours is a system of pressure and pleas, not truth and trials.” (P. 5.)
Hessick’s Punishment Without Trial—Why Plea Bargaining is a Bad Deal argues our system is now designed to impose punishment without trial—a fundamental change to the very foundations of the criminal justice system. The book boldly calls out the constitutional sacrifices made in the name of expediency—and there are lots of them. For example, it is common for prosecutors and judges to impose a “trial penalty” on defendants, by which they give more favorable deals to those who plead guilty and free up the court of having to conduct a trial. In contrast, the defendant who goes to trial can expect to be charged with more crimes and more serious crimes, and handed longer sentences. The penalty effectively punishes a defendant for exercising the constitutional right to a trial by jury, which undermines the very purpose of having the right. But the possibility of more punishment isn’t the only pressure. The system of pretrial detention pushes people to admit guilt too: Continue reading "Bargaining Away the Constitution"
Wisdom sometimes is best recognized by a traveler. In Delaware’s Fiduciary Imagination: Going Privates and Lord Eldon’s Reprise, Professor David Kershaw of the London School of Economics revisits cases that we know very well, putting them in the context of British decisions, and elicits a distinction that appears obvious, yet comes as a bit of a surprise: There is a distinction between abuse of power and abuse of influence. These are two ideal types of the “source of obligation” for fiduciaries
Abuse of power flows from the grant of power to the fiduciary. Abuse of influence flows from the limited consent of the beneficiary. For example, controlling shareholders were once understood as being able to abuse their corporate powers. Today, it is more common to focus on how they can “threaten the minority to say ‘yes.’” Duties to creditors follow from influence over them near the debtor’s insolvency but do not flow from an abuse of corporate powers. Continue reading "Bringing the Fiduciary Back In"
Chaumtoli Huq, Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anticapitalist Lawyering
, 35 J. Civ. Rts. & Econ. Dev.
__ (forthcoming 2022), available at SSRN
Professor Chaumtoli Huq’s recently posted Article, Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anticapitalist Lawyering, provides an accessible and insightful map for engaging with and applying theories of racial capitalism in a first year Contracts law course. Her Article is a powerful testament to the idea that critical legal thinking skills are good legal practice skills. Asking questions informed by racial capitalism enables us to better articulate in the classroom how the law that builds and reinforces capitalism is not (only) racially exploitative through one-off instances of discrimination, but rather throughout the very foundations of labor, property, contract, and corporate jurisprudence.
The Article deftly demonstrates the pedagogy of a racial capitalism-informed contracts law analysis. Huq presents several critical concepts, including “praxis” and “racial capitalism,” in accessible language while also explaining their relevance for legal education. In describing racial capitalism as “the mutual interdependence of racism and capitalism, a form of capitalism that relies on and is maintained by the exploitation and reproduction of racial differences” (P. 5), she draws from Ruth Wilson Gilmore, Cedric Robinson, Robin D. G. Kelley, Claudia Jones, and others, explaining the under-appreciation of Jones’ and other Black feminist insights in academic literature along the way. She describes the relevance of racial capitalism for contract law thus:
Racial capitalism provides an important through-line for students to understand how racial inequalities are reproduced in the present and the law’s role in this reproduction. As essentially a political- economic theory, it is particularly useful to draw connections between legal doctrine and the market economy. It stands in contra- distinction to the dominant classical and neoclassical economic theory embedded in contract doctrine. (P. 10.) Continue reading "Seeing Contract Law through Racial Capitalism"
On June 17, 2017, a small group of queer Black trans protesters and allies blocked my hometown’s pride parade. The plan was to “silently block the [Stonewall Columbus Pride] parade for seven minutes to hold space for Black and brown queer and trans people.” The seven minutes corresponded to the seven bullets police officer Jeronimo Yanez fired at Philando Castile at close range, killing him, an act Yanez was charged for, but acquitted of the day before Columbus Pride. Nothing like those seven bullet minutes passed before Columbus police swiftly and forcefully stopped the protest, arresting “four Black queer and trans folks” on various charges. Those arrested became famous as the “Black Pride 4.”
Five years later, the Black Pride 4’s protest—along with pride-timed and other protests elsewhere, and marches, conversations, and community work in their wake—has precipitated a reckoning in Columbus’s and other LGBTQ communities across the nation. LGBTQ individuals and leaders—not themselves queer, Black, or trans—and many LGBTQ organizations are finally grappling with the violent realities and material privations queer Black trans people regularly suffer, along with whether and how to center queer Black trans people and their liberation as key to LGBTQ politics.
Despite the path the Black Pride 4’s 2017 Columbus Pride protest has forged inside LGBTQ communities, it has not generated widespread academic engagement—yet. Zane McNeill and Kyra Smith’s Whose Pride Is This Anyway? The Quare Performance of the #Black Pride 4 promises to help change that. Continue reading "LGBTQIA+ Pride, 2022: The Story of the Columbus, Ohio #BlackPride4, Five Years On"
Rebecca Stone, Private Liability without Wrongdoing
, __ U. Toronto L.J.
__ (forthcoming 2022), available at SSRN
(Oct. 19, 2021 draft).
Rebecca Stone’s fascinating and superb Private Liability without Wrongdoing addresses a fundamental question: What is the relationship between moral wrongdoing and private law liability?
On the face of it, moral wrongdoing is neither necessary nor sufficient for private law liability in common law jurisdictions.
Not necessary, one might think, because exacting, objective, “reasonable person” standards result in liability when the legal duty-bearer could not have acted otherwise. Further, private law rights and duties are insensitive to background distributive injustice. Therefore, one might think that if a homeless person agrees to pay a high rent to a wealthy landlord for shelter, the homeless person would not morally wrong the landlord if the person breached the legal duty created by the agreement.
And, less disputably perhaps, moral wrongdoing is insufficient: adultery is plausibly morally wrong, but, these days, does not attract private law liability. Consider, too, the wrong of failing to conduct the easy rescue of a drowning stranger because of a concern for spoiling one’s new shoes. Such an omission is generally not actionable in the private law of common law jurisdictions.
How should a philosopher of private law respond to these facts? Continue reading "Liability without Wrongdoing"
Sure, we all know about Ex parte Young, the 1908 Supreme Court precedent that stands broadly for the proposition that plaintiffs can, without any express statutory cause of action, invoke a form of “nonstatutory review” to sue government officials to enjoin unconstitutional actions. But familiarity has not brought clarity regarding this cornerstone of judicial control of official action. Questions have lingered for a century regarding Ex parte Young’s evasion of the 11th Amendment, the source of its cause of action, its proper scope, and its jurisdictional basis. In just the last year, Ex parte Young made a surprisingly large splash in the news for a 113-year-old federal courts decision as the justices have sharply disputed its parameters in the challenge to Texas’s six-week ban on abortions that culiminated in Whole Woman’s Health v. Jackson (2021). The scope of the federal courts’ equitable power associated with Ex parte Young remains remarkably unsettled.
The Supreme Court has told us that, to determine the scope of the federal courts’ equitable powers, we should look to history—and especially to the English High Court of Chancery circa 1789. In their richly detailed and fascinating article, The Common Law Origins of Ex parte Young, Professor James Pfander and Jacob Wentzel contend that important and influential scholarship, consistent with this guidance, has deployed a narrow form of “equitable originalism” that threatens to unduly limit judicial power to issue injunctive relief to stop constitutional violations. Continue reading "Whence Ex parte Young?"
Pat K. Chew’s Hiding Sexual Harassment: Myths and Realities exhorts the reader to view sex discrimination’s and sexual harassment’s invisibility as being among their most nefarious attributes. This piece is convincing and thought-provoking. As the #MeToo movement hits a crossroads, this article deserves to be centered in the literature, and in any discussion of workplace sex discrimination and sexual harassment.
The article is organized as a series of myths: “Sex discrimination is no longer prevalent,” “Sexual harassment is no longer prevalent,” and “Sexual harassers are stopped and punished,” and upon reflection, it does appear that these are still widely-held societal beliefs. By probing into why these beliefs persist despite so much evidence to the contrary and into how they operate to obscure and amplify the harm caused by sex discrimination and sexual harassment, this piece yields a novel angle from which to confront these problems. Continue reading "Behind the Myths: Paving the Way for Real Redress of Sexual Harassment and Sex Discrimination in the Workplace"
David Horton & Reid Kress Weisbord, Heir Hunting
, 169 U. Pa. L. Rev.
Heir hunting. This slightly ominous term refers to the practice of sophisticated individuals and companies scouring probate filings, conducting genealogical research, and contracting with heirs of intestate decedents to provide help with probate proceedings in exchange for a cut of their inheritance. The practice originated in 1850s England before crossing over to the United States, and despite the prevalence of heir hunting, its legal treatment is murky at best. Academic scholars have failed to give it the attention its longevity would seem to warrant. Professors David Horton and Reid Kress Weisbord rectify this neglect and seek to understand the reality of heir hunting through an empirical study of San Francisco County probate filings. The professors’ findings guide their critique of heir hunting, and they propose legislation that provides a time and place for the practice in the present day and mitigates the serious harms it can cause.
The legal history of heir hunting is complex. Courts initially invalidated heir hunting contracts under the doctrine of champerty, which prohibits a third party from pursuing another’s legal claim. However, courts did not always employ the same logic when they struck down these contracts. Some courts voided the contracts because they encouraged litigation, and others pointed to heir hunters’ meddling with the duties of actual estate administrators. To make sense of these discrepancies, Professors Horton and Weisbord distinguish the differences in court opinions with two ideas: the “litigiousness” theory of champerty and the “interference” theory of champerty. Continue reading "The Double-Edged Sword of Hunting Heirs"
Rachel Sachs, The Accidental Innovation Policymakers
, __ Duke L.J.
_ (March 27, 2022 draft, forthcoming 2022), available at SSRN.
Innovation policy is hard. Getting it right requires balancing incentives for developers, consumer access, rewards for later innovators, safety concerns, and other factors. This balance is vitally important and wickedly difficult—even when it’s the focus of concerted, careful, informed effort. How well should we expect it to go when innovation policy is made by accident?
Enter The Accidental Innovation Policymakers, an illuminating new project by Professor Rachel Sachs. Sachs persuasively shows how Congress has repeatedly made substantial changes to innovation policy, seemingly without talking about, seriously considering, or even recognizing that it is doing so. There’s an asymmetry to this accident, and it favors industry. When Congress wants to directly promote innovation, it explicitly gives rewards to the biomedical industry. When Congress focuses on other matters such as patient finances and happens to increase the rewards for biomedical innovation by embiggening the market, no one mentions it. But when Congress, focusing on patient finances, tries to rein in prices and thus decrease prices for industry, drugmakers scream bloody murder and claim that the engines of progress will grind to a halt. This legislative dynamic is off-kilter. It demands understanding and options for fixes. Sachs provides both. Continue reading "Congressional Myopia in Biomedical Innovation Policy"