Lawfare in the “War on Terror”

Richard Abel is the most prolific, as well as the most eminent, scholar of legal professions. Among many other books, he has written a detailed and moving study of the handful of courageous South African lawyers who challenged the apartheid regime. He has unearthed documents from lawyer disciplinary proceedings to uncover new lessons about lawyer deviance. And he has now completed two massive volumes on the Bush and Obama Administration’s anti-terrorism policies in the wake of the 9/11 attacks, the legal means employed to carry them out, and the legal responses to them. Law’s Wars deals with detention of suspected terrorists at the Iraqi prison of Abu Ghraib and at Guantanamo Bay, interrogation, electronic surveillance, and law of war on the battlefields of Iraq and Afghanistan. Law’s Trials covers many of the legal proceedings resulting from counter-terrorist measures: criminal prosecutions in ordinary courts, military commissions, and courts-martial (of U.S. personnel), and the various legal challenges to all of the above, such as habeas corpus petitions, civil damages actions, and civil liberties complaints.

The books are intended to be comprehensive, and they are. The genre that they most resemble is that of reports of Truth Commissions established after mass atrocities to give a meticulous account of events, perpetrators, and victims, to ensure that a record is made and that collective memory of events is preserved as an instruction and warning to later generations. See, e.g., Report of the Chilean National Commission on Truth and Reconciliation. Those reports, however, are typically the product of multi-member bodies employing large research staffs. Rick Abel is just one tireless, persistent Recording Angel. His chapters relate every relevant incident—in every relevant detail—of the events he covers, including not only records of proceedings and official reports, but contemporary comments by administration officials, politicians, leading newspapers, academics, and NGOs. His prose is undramatic yet sharp and crisp; the sentences as lucid as pebbles dropped into a clear mountain stream. For the most part, he adopts the role of objective reporter, but in concluding sections to every chapter, he discloses his own analysis and his own judgments. Continue reading "Lawfare in the “War on Terror”"

A Diplomatic Nightmare and the Growth of American Sovereignty

In an era when refugees prize crossing American borders – and when political debates turn on whether to build a “beautiful wall” to stop them – we learn in Under the Starry Flag about a time that the United States lacked the power it has today to alter the citizenship of migrants. Lucy Salyer’s fine monograph tells a story of Irish emigration to the U.S. in British and American law and politics. We learn that the great migrations across the Atlantic in the nineteenth century occurred in something of a legal vacuum. Nobody was quite sure what the consequences of such migration would be. Even if migrants naturalized as American citizens, Britain and other European powers denied that their former subjects had severed their obligations to the homeland. If migrants returned to visit family, they were liable to arrest for failure to serve in the military, for example. If they returned and sought to foment rebellion, they were subject to prosecution for treason. Most people didn’t know this; others learned the hard way.

The Irish immigrants studied here were caught in the crosshairs.  They already objected strenuously to the discrimination they suffered at the hands of American snobs (think, “no Irish need apply”) in the nineteenth century. They dreamed of sticking it to elite Bostonians and New Yorkers. But most of all, they hated the English. They became entangled in transatlantic diplomatic crises that they milked for publicity and personal celebrity. They were unlikely heroes, untutored in the many ways that their actions had crossed tacit boundaries and stirred already troubled waters. But they were stubborn, brave (for the most part), and idealistic. The reader is forced into grudging admiration. Continue reading "A Diplomatic Nightmare and the Growth of American Sovereignty"

The Internal Point of View Restored

The seminal scholarship of H.L.A. Hart still looms large over much of jurisprudence. There are countless commentaries, challenges, exegeses, celebrations, and elaborations on offer. For this reason, it takes an incisive mind to add to Hart’s account. That is precisely what Philip Pettit does. His recent article takes a careful look at one aspect of Hart’s Concept of Law that is often mentioned in passing, sometimes criticized, but never carefully retraced and fleshed out: his genealogy of law.

In his article, Social Norms and the Internal Point of View: An Elaboration of Hart’s Genealogy, Pettit takes on some of the lingering questions surrounding Hart’s genealogy. How do primary rules arise? Are they any different from customs, habits, or other forms of convergent behavior? What, exactly, constitutes the internal point of view? If one acts in conformance with a community out of fear for social sanctions, can one be said to occupy the internal point of view? Perhaps most importantly–what, exactly, does Hart’s origin story of law tell us about the distinctions between law and custom, norm and habit? Pettit takes us through each of these questions as he reconstructs a genealogical account of how pre-normative society (“Prenormitania”) could be imagined to have evolved into Hart’s pre-legal society (“Normitania”). This sheds new light onto Hart’s own genealogy, which of course takes Normitania as a given and focuses on how it develops into a legal society (“Lexitania”). Continue reading "The Internal Point of View Restored"

Family Choices

Courtney G. Joslin, Autonomy in the Family, 66 UCLA L. Rev. 912 (2019), available at SSRN.

What is the role of autonomy (choice) in American marriage law, and what should it be? This question is salient for topics like the proper treatment of premarital and marital agreements, but, as Courtney Joslin points out in her article, Autonomy in the Family, it also has clear importance for the proper treatment of non-marital cohabitants.

As Joslin reports, the basic contemporary approach to the legal treatment of cohabitation follows some variation of the 1976 California case of Marvin v. Marvin. That case authorized the enforcement of express and implied agreements between cohabitants, no longer treating all such agreements as unenforceable because they contradict public policy.1 However, as the author sums up, Marvin basically treated cohabitants as legal strangers, parties who can enter into agreements altering their rights and obligations to one another but are not required to do so. One justification offered for this approach centers on autonomy: because it is open to couples to marry, those who do not marry should be seen as having “chosen” to avoid the reciprocal duties that come with marriage, as well as the equitable sharing of property and the possible alimony claims that are available to spouses upon divorce, unless they agree otherwise. Continue reading "Family Choices"

Right of Repair in the Digital Economy

Leah Chan Grinvald and Ofer Tur-Sinai, Intellectual Property Law and the Right to Repair, 88 Fordham L. Rev. 63 (2019).

We have long understood that people have a right to repair what they own, but this right to repair is under siege. A new article by Leah Chan Grinvald and Ofer Tur-Sinai explains how IP rules are inhibiting these repair rights and why laws protecting the right to repair are necessary and justifiable. As I explain below, authors Grinvald and Tur-Sinai describe the growing right to repair movement pushing for legislation to protect the right to repair and show how intellectual property laws should facilitate not interfere with consumers rights to repair what they own. The authors also propose a theoretical framework through which they analyze the intellectual property doctrine as enabling rather than inhibiting of consumer rights..

The right of repair problem is easy to identify and touches many aspects of everyday life. Our coffee machines break and, because certain components are protected by patent and copyright, this relatively simply machine cannot be fixed except by the manufacturer, who charges as much as the machine itself to replace the part. Automobile repairs performed only by “authorized dealers” preserve warranty agreements and are enforced through trademark law as well as patent law. These kinds of restrictions  make the market for repairs tightly controlled and expensive, sometimes entirely foreclosed, pushing consumers to buy new products instead of fixing old ones. The restrictions benefit manufacturers and their business partners. But it hurts consumers and repair shops and contributes to substantial amounts of waste inhibiting efforts at reversing devasting climate change. Continue reading "Right of Repair in the Digital Economy"

The Long Tail of Eugenics

The search for the precursors to contemporary mass incarceration in the U.S. has become one of the great legal, historical, and sociological debates of our times. Many of us have focused on two particular arcs of penal history in tracing the genealogy of mass incarceration. One is associated with the birth of the penitentiary and the police in the first third of the 19th century in the context of emerging capitalism (both slavery and free labor in the U.S.). From this perspective, mass incarceration has always been a part of the DNA of America’s form of racial capitalism. The other locates the genesis much closer to our own time in the political and economic crises of the late 20th century associated with the neoliberal transformation of the U.S. economy.

Laura Appleman’s article, Deviancy, Dependency and Disability, makes a convincing case for adding a third arc of history: one that focuses on the eugenic period of the early and mid 20th century as a crucial precursor for mass incarceration and that offers a comprehensive treatment of the eugenic influence on criminal justice policy and what she calls its “long tail.” Eugenics refers specifically to efforts to improve society by regulating births, but it also applies to a much broader range of policies influenced by core beliefs that many of the worst social problems facing America could be solved by segregating, sterilizing, or even eliminating the physically, mentally, and morally disabled. Appleman’s article builds on recent work of historians which has underscored the radical nature of America’s embrace of eugenic thinking and its enduring significance in fields like immigration, drug and alcohol policy, and criminal statistics. Continue reading "The Long Tail of Eugenics"

Crowdsourcing Plain Meaning

James A. Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Ind. L.J. __ (forthcoming 2019), available at SSRN.

Employment discrimination doctrine is a mess, and one of the messiest parts concerns causation. Problems with causation have been the focal point of many articles in recent years, often in response to the “tortification” of employment discrimination law. You might think that there is nothing more to say, and that we’re just stuck with the mess. But James Macleod’s article, Ordinary Causation: A Study in Experimental Statutory Interpretation has persuaded me that neither is true.

In this article, Professor Macleod breathes fresh life into interpretation of Title VII by using the  tools of experimental philosophy to explore the meaning of “because of” and other statutory causal language. What better way to determine the ordinary public meaning of a phrase, particularly a phrase in context, than to survey a representative sample of the population, ask whether a particular result was because of the reason described in the statute, and then share that information publicly? Professor Macleod did just that, and his article makes a case for this approach and then reports on his results. Continue reading "Crowdsourcing Plain Meaning"

Saving Constitutional Democracy from the Right (and the Left)

Tom Ginsburg and Aziz Z. Huq, How to Save a Constitutional Democracy (2018).

The challenges of democratic backsliding and institutional resilience have recently exploded onto the agenda of research scholarship across the social sciences, especially in world and economic history, comparative politics, and constitutional law. Tom Ginsburg and Aziz Z. Huq’s How to Save a Constitutional Democracy is one of the most lucid and authoritative accounts in this increasingly crowded yet scholastically sophisticated field.

As with many other such recent treatments, the catalyst for the book has been the election of President Trump in the United States, and many others like him in varying degrees and styles of strong leadership across the world. The challenge these leaders pose for established assumptions about the nature of political order are fundamental, the book argues, and not simply a transient choice of ordinary democratic competition. In varying degrees, these leaders and the movements they lead challenge the values of political liberty and cultural pluralism, the principle of government limited by laws of general application, and the norms of behaviour that flow from the distinction between political power and legal authority. Continue reading "Saving Constitutional Democracy from the Right (and the Left)"

Individual Choice and Health Disparities: A Fallacy of Relevance

Angela P. Harris & Aysha Pamukcu, The New Civil Rights of Health: A New Approach to Challenging Structural Inequality, 66 UCLA L. Rev. __ (forthcoming 2019), available at SSRN.

As of 2018, health disparities cost the U.S. $93 billion in excess medical costs and $42 billion in lost productivity per year. Since 1985, the federal government has recognized that there are health disparities, yet research and programs addressing these problems have focused on individual choice, ignoring the significance of structural inequality. Even when the government announced that health disparities were caused by the social determinants of health (SDOH), which are outside an individual’s control, it focused on solutions concerning individual choice. In The New Civil Rights of Health, Professor Angela Harris and Aysha Pamukcu argue that in order to address health disparities, we must understand that individual choice is limited by structural inequalities caused by subordination, “a set of policies, practices, traditions, norms, definitions, cultural stories, and explanations that function to systematically hold down one social group to the benefit of another social group.”

Subordination, particularly racial subordination, limits individual choice and control over access to health-promoting opportunities and resources. To address subordination and end health disparities, the authors suggest a partnership between public health advocates trying to address the SDOH and civil rights advocates trying to address structural inequality. Building on the work of other public health and critical race scholars, Harris and Pamukcu discuss the limitations of public health and civil rights laws to address subordination and propose a new “civil rights of health” that builds on the “health justice framework” to address subordination, which leads to health disparities. By adopting this new “civil rights of health,” advocates can help educate policymakers and the public about the health effects of subordination, create new legal tools for challenging subordination, and ultimately reduce or eliminate unjust health disparities. Continue reading "Individual Choice and Health Disparities: A Fallacy of Relevance"

Is Greed Good? Mega-Fees in Securities Fraud Class Action Mega-Settlements

Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions, NYU Law and Economics Research Paper No. 19-31 (July 15, 2019), available at SSRN.

Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard have authored a provocative empirical study of attorney fee awards in securities fraud class actions. Complementing an existing array of studies, they focus on the subset of mega-settlements—those in excess of  $100 million dollars—such as the $186.5 million fee award in a securities action against Petroleo Brasileiro SA, in which the plaintiffs’ attorneys claimed to have worked 324,307 hours on the litigation to obtain a $3 billion settlement. Their conclusions are certain to provoke discussion, if not strenuous dissent: namely, that the lure of mega-fees in certain securities cases induces many lead counsel to make work, rather than to work hard.

The authors situate their study in the reforms Congress envisioned in enacting the Private Securities Litigation Reform Act of 1995 (“PSLRA”). This legislation limited fee awards in securities class actions to a “reasonable” percentage of the settlement. The study included every securities class action filed in federal court between 2005 and 2016, a total of 1719 cases, comparing fee requests and awards in the highest-stakes cases with those in other securities class actions. The authors wanted to test whether attorneys were investing more time in high-stakes cases and if the needs of these cases drove the expenditure of additional time or merely rove the desire to justify a higher fee award. Continue reading "Is Greed Good? Mega-Fees in Securities Fraud Class Action Mega-Settlements"

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