Yearly Archives: 2009

Winter Break

Jotwell is taking a short winter break. Posting will resume early in January.

I am tremendously grateful to our authors and readers who together have made Jotwell’s launch such a great success. Thank you for reading, and for your support.

Democratizing Online Life via Cultural Infrastructure

Anthony Varona, Toward a Broadband Public Interest Standard, 61 Admin. L. Rev. 1 (2009), available at SSRN.

I was recently reading Bob Garfield’s book The Chaos Scenario, which describes the accelerating deterioration of old business models for mainstream media.  Garfield’s weekly podcast/radio show, On the Media, has meticulously documented the problems journalists, musicians, and news programs are encountering as content converges onto broadband-based intermediaries.  In the face of all these dramatic changes, what are legal scholars adding to the debate?

In cyber- and media law scholarship, Anthony Varona deserves special notice for integrating the two fields in his recent article “Toward a Broadband Public Interest Standard.”  Varona tries to revive an old and oft-neglected standard for broadcasting—the public interest—for the digital age.  In areas  where scholarship too often degenerates into arid formalism, libertarian rejectionism, and toothless jeremiads, Varona is a breath of fresh air.  He has articulated both a comprehensive justification for better broadband regulation and a method of achieving it.  The article is both a rigorous intervention into extant debates on network neutrality and importantly demonstrates (and helps remedy) the partiality and ideological character of many of those debates. Continue reading "Democratizing Online Life via Cultural Infrastructure"

Parallel Play: The Disconnect Between Criminal Procedure and Criminology Revisited

Eric J. Miller, Putting the Practice into Theory, 7 Ohio St. J. Crim. L. 31 (2009).

Susan Bandes

Susan Bandes

Criminal procedure and criminology have developed along oddly parallel tracks. Criminal procedure is rights-based and court-centric.  It cares about policing and crime control not as subjects in their own right, but as objects of constitutional limitation.  The field implicates the regulation of police behavior, but has traditionally paid little attention to police attitudes or police organizational culture.  It implicates crime control, but has paid little attention to the social, political and cultural context in which the criminal process unfolds.  This focus seems increasingly myopic.  Most of the promising innovations in police reform and crime control have little to do with judicial enforcement of constitutional rights. Continue reading "Parallel Play: The Disconnect Between Criminal Procedure and Criminology Revisited"

Taking the Literary Turn

Elliott Visconsi, Lines of Equity: Literature and the Origins of Law in Later Stuart England (Cornell University Press: 2008).

This is a book about the fictionalization of the origins of law in later Stuart England.  My focus is on crucial literary texts such as John Milton’s Paradise Lost and John Dryden’s Indian Emperour, works devoted to demanding of the audience a set of structured interpretive deliberations about the first principles of government, the charismatic utterance of law, and the transition from savagery to civility.  At the heart of such an intellectual program is the norm and practice of equity….  Equity is a moral principle (equal justice, fairness), an interpretive method (summoning the original intention or spirit of a law in order to judge fully particular acts or events), and a gesture of sovereign mercy (relaxing the rigorous letter of the law in order to ensure justice).  For the writers I study, equity is habit of thought that may be cultivated through fictional methods.  …  I take as given the claim … that in the later Stuart period, serious literary texts are a crucial language for the public constitution of the legal norms and conceptions of sovereignty, subjecthood, and political authority.  Moreover, I share the view that literary texts are often the most effective and lasting language for explaining and legitimating legal regimes.  (1-2)

This is a book I like a lot in part because of who – professionally – Elliott Visconsi is.  He wrote the book while an assistant professor of English.  Lines of Equity is careful tenure track work.  Visconsi announces right at the beginning (“I take as given”) that he is working within a field already mapped (naming and footnoting his predecessors in the passage I delete.)  And he was also an assistant professor of English at Yale – making his way, therefore, within one of the most established, celebrated, central English departments in American academia.  There is nothing radical, it appears – or not much – in Visconsi’s project.  Constitutional thinking is, apparently, a pretty much accepted starting point for exploring the organization and power of literary works. Professor Visconsi cheerfully announces on his Yale webpage that he will “spend a year studying US and comparative constitutional law at Yale Law School courtesy of a Mellon Foundation New Directions Fellowship.  The major focus of my current research touches on the cultural and legal history of the separation of church and state….” Continue reading "Taking the Literary Turn"

Tax Policies, Public Opinions

Andrea Louise Campbell, What Americans Think of Taxes, in The New Fiscal Sociology:  Taxation in Comparative and Historical Perspective (Isaac William Martin ET AL. eds., 2009).

Before reading Andrea Campbell’s recent book chapter, I relied mainly on two reference points for a mental framework of public opinion relating to taxes:  Donald Duck and Pat Soldano.  The famous Disney cartoon shorts from the 1940s aimed to convince a patriotic public that mass income taxes would help “Beat the Axis,” thus smoothing the transition from a class-based income tax.   Lobbyist and anti-estate tax crusader Pat Soldano, as Michael Graetz and Ian Shapiro tell it in their book Death by a Thousand Cuts, helped persuade America that repealing the estate tax would save hardworking family farms and businesses from the clutches of the federal government, making passage of the 2001 estate tax bill possible.   In my mental model, Donald Duck stood for effective pro-tax government propaganda.  Pat Soldano represented successful grassroots cultivation of anti-tax popular sentiment with the power to hold policymakers hostage, leaving them mainly with the escape hatch of debt financing.  But how did we get from Donald to Pat?

Campbell, a political scientist at MIT, gives a more comprehensive, empirical picture of the evolution of American public opinion on taxation.  She uses two data sources:  Gallup and other poll data, starting in 1939, and political communication such as presidential campaign speeches.  Her work suggests that “the dawn of mass taxation came with surprising calm,” with data such as 1943 Gallup poll results showing that 78 percent of respondents thought their annual federal income tax due was “fair.”  Campbell also traces increased public resistance to taxes starting in the late 1960s.  As she acknowledges, many developments contributed to this shift to anti-tax sentiment, including decreasing real after-tax income and growing public disapproval of government spending, for example on Vietnam and on social programs associated with racial divides.  She offers empirics to illustrate the trend, such as coded political speech data demonstrating a generally upward trend in the frequency with which taxes were mentioned starting in 1968.  The data extends to 2000 and later, and she includes an analysis of the increased correlation between a belief that one’s taxes are too high and a decision to vote for a Republican candidate for President in the 1990s, when other factors are held constant. Continue reading "Tax Policies, Public Opinions"

Exposing Criminal Procedure’s Hidden History

David Alan Sklansky, One Train May Hide Another: Katz, Stonewall, and the Secret Subtext of Criminal Procedure, 41 U.C. Davis L. Rev. 875 (2008).
Jack Chin

Jack Chin

David Alan Sklansky offers fascinating new insights into an old chestnut, Katz v. United States, 389 U.S. 347 (1967).  Katz is a worthy subject, because its rejection of the “trespass” test for searches in favor of the “reasonable expectation of privacy” framework apparently heralded a new scope for the Fourth Amendment.   The specific holding of Katz, that wiretapping constituted a search, overruled prior law and survives today.  Yet, as the cases after Katz developed, from open fields to wired informants, the results of the new test were the same as the old test.

Together, the great criminal procedure cases of the Warren Court read like a parade of vice straight out of Guys and Dolls: The possession of dirty paperbacks at issue in Mapp v. Ohio, 367 U.S. 643 (1961), the incipient stick-up artists of Terry v. Ohio, 392 U.S. 1 (1968), the Chinese opium dealers in Wong Sun v. United States, 371 U.S. 471 (1963), the bookmaker in Spinelli v. United States, 393 U.S. 410 (1969), and the L.A. bookie in Katz itself.  Sklansky proposes that with Katz, at least, this image is wrong; Katz was not only about bets and telephone booths.  The secret subtext of Katz was protection of gay men from police surveillance in public restroom stalls.  Sklansky advances a powerful circumstantial case that both pre-Katz jurisprudence involving gay men and the cultural context of “morals” policing of males might well have influenced the Court’s decision. Continue reading "Exposing Criminal Procedure’s Hidden History"

Why Exactly Are Jackson Pollock’s Paintings Shielded by the First Amendment?

Randall Bezanson, Art and Freedom of Speech (Urbana: University of Illinois Press, 2009). (Online Table of Contents.)

Suppose a suburban city council enacted an ordinance barring the display of any Alexander Calder stabiles or Jeff Koons “sculptures” in any place visible by the public, believing that Calders and Koonses are just ugly. I suspect that most people who know something about the Constitution would think that the city’s ordinance is an obvious violation of the First Amendment’s protection of freedom of speech. After all, we have it on the highest authority that the First Amendment “unquestionably shield[s]” Jackson Pollock’s paintings: If Pollock, a fortiori Koons, whose sculptures at least look like something.

People should check their wallets whenever the Supreme Court takes some proposition as unquestionable. Randall Bezanson shows why. Every route that you might take to explain why non-representational art is covered by the First Amendment leads to mind-bending problems, and rather rapidly places some other unquestionable proposition about free speech under pretty severe pressure. (Here “covered by the First Amendment” means something like “the First Amendment is relevant to assessing the constitutionality of regulation,” and should be distinguished from “protected by the First Amendment,” which means “can’t be regulated consistent with the First Amendment.”) What follows are some quite rambling thoughts provoked by reading Bezanson’s book. Continue reading "Why Exactly Are Jackson Pollock’s Paintings Shielded by the First Amendment?"

Call for Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call for Papers"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

Better (or Worse?) Risk Management Through Technology

Kenneth A. Bamberger, Technologies of Compliance: Risk and Regulation in a Digital Age, 88 Tex. L. Rev. (forthcoming 2010), available at SSRN.

The global financial crisis raises profound questions about how financial markets and the participants in those markets should be regulated. The scale of the crisis has meant that issues which are normally discussed only by technical experts now are the subject of public debate. However, much of this public debate (and even some academic debate) about the future of financial regulation seems to assume that introducing a few new national and transnational institutions and changing a few rules can make a significant difference. For this reason, Kenneth Bamberger’s article, Technologies of Compliance: Risk and Regulation in a Digital Age, forthcoming in the Texas Law Review, is essential reading. The article shows that it is necessary to think about the ways in which private and obscure technologies of compliance risk distorting financial regulation.

Over the last few years, and somewhat ironically given the crisis, financial regulation has evolved to emphasize risk management by financial firms. Regulators have identified many varieties of interconnected risks which financial firms should manage. But although the crisis illustrates weaknesses in how financial firms have in fact managed the risks involved in their businesses, risk management as a focus of regulation is clearly here to stay. The G20, most recently in the Leaders’ Statement from the Pittsburgh Summit, and the Basel Committee (for example in its revisions to the Basel II market risk framework) continue to emphasize the idea of risk management as a core component of financial regulation. Policy makers are advocating the development of more sophisticated domestic and transnational institutions for the management of systemic risk. Continue reading "Better (or Worse?) Risk Management Through Technology"

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