Monthly Archives: October 2010

Regulating Constitutional Law

There is considerable overlap between administrative law and constitutional law. The appointment of particular agency leaders without Senate confirmation, ex parte communication between an agency and interested persons in a rulemaking process, and the type and timing of a hearing used in terminating a government benefit, for example, can raise constitutional issues. These topics generally receive some attention, at least in the academic literature and at times in the courts.

Sophia Lee’s exceptional article, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, turns our attention from these more conventional explorations of the overlap to “regulatory agencies’ interpretation and implementation of constitutional law,” what Lee terms “administrative constitutionalism.” The article compares the contrasting responses of the Federal Communications Commission and the Federal Power Commission to pressure to use the state action doctrine to enact and enforce employment policies aimed at furthering equal employment by race, sex, and ethnicity, mainly in the 1960s and 1970s. The FCC did implement equal employment rules, largely independent of direct presidential or congressional influence, while the FPC did not. Continue reading "Regulating Constitutional Law"

The Small-c constitution, Circa 1925

Herbert W. Horwill, The Usages of the American Constitution (1925).

A great deal of recent work distinguishes the small-c constitution from the Constitution.  The latter is the written document, whereas the former is an amorphous and ever-changing body of constitutional norms, customs, and traditions – “constitutional conventions,” to use the umbrella term that Commonwealth lawyers have developed to talk about unwritten constitutions.  The recent work on small-c constitutionalism, however, has almost invariably neglected a classic and illuminating book on constitutional conventions in the United States: Horwill’s Usages of the American Constitution.  A “neglected classic” sounds like an oxymoron, but Horwill’s book is proof that such a thing can exist.

Horwill was an English writer who lived and traveled in America and reported upon its natives and their curious customs for an audience in the Old World; his book thus falls into a genre defined by Tocqueville and Bryce.  Because the past is another country, many of the constitutional usages that Horwill discussed in 1925 seem exotic today.  In the 19th century, there was apparently a constitutional convention that the President should not travel outside the territory of the United States during his term of office.  The convention was sufficiently powerful, Horwill relates, that presidents would meet their Mexican counterparts half-way across a bridge over the Rio Grande.  Woodrow Wilson shattered the convention with his extended stay in Paris after the First World War, and it has now vanished from view altogether. Continue reading "The Small-c constitution, Circa 1925"

The Small-c constitution, Circa 1925

Herbert W. Horwill, The Usages of the American Constitution (1925).

A great deal of recent work distinguishes the small-c constitution from the Constitution.  The latter is the written document, whereas the former is an amorphous and ever-changing body of constitutional norms, customs, and traditions – “constitutional conventions,” to use the umbrella term that Commonwealth lawyers have developed to talk about unwritten constitutions.  The recent work on small-c constitutionalism, however, has almost invariably neglected a classic and illuminating book on constitutional conventions in the United States: Horwill’s Usages of the American Constitution.  A “neglected classic” sounds like an oxymoron, but Horwill’s book is proof that such a thing can exist.

Horwill was an English writer who lived and traveled in America and reported upon its natives and their curious customs for an audience in the Old World; his book thus falls into a genre defined by Tocqueville and Bryce.  Because the past is another country, many of the constitutional usages that Horwill discussed in 1925 seem exotic today.  In the 19th century, there was apparently a constitutional convention that the President should not travel outside the territory of the United States during his term of office.  The convention was sufficiently powerful, Horwill relates, that presidents would meet their Mexican counterparts half-way across a bridge over the Rio Grande.  Woodrow Wilson shattered the convention with his extended stay in Paris after the First World War, and it has now vanished from view altogether. Continue reading "The Small-c constitution, Circa 1925"

New Jotwell Section: Classics

Jotwell is an online journal devoted to reviews of the great recent writing related to the law that top scholars in the field believe deserves a wide readership.

The Classics section, however, is a little different: it provides a home for the occasional review of classic works of law, especially those unjustly neglected.  (To qualify as a ‘classic’ for this purpose the work must have been published at least 50 years before the review.)  Unlike Jotwell’s other sections, the Classics Section doesn’t have a board of editors, nor will we attempt a regular publication schedule.   We’ll publish something appropriate only if and when someone is moved to write it.

New Jotwell Section: Classics

Jotwell is an online journal devoted to reviews of the great recent writing related to the law that top scholars in the field believe deserves a wide readership.

The Classics section, however, is a little different: it provides a home for the occasional review of classic works of law, especially those unjustly neglected.  (To qualify as a ‘classic’ for this purpose the work must have been published at least 50 years before the review.)  Unlike Jotwell’s other sections, the Classics Section doesn’t have a board of editors, nor will we attempt a regular publication schedule.   We’ll publish something appropriate only if and when someone is moved to write it.

Mirror, Mirror on the Wall, Is China’s Trust the Fairest of All?

Frances Foster, American Trust Law in a Chinese Mirror, 94 Minn. L. Rev. 602 (2010).

The People’s Republic of China officially adopted the Western notion of a trust on April 28, 2001, and scholars are now pondering the likely long-term impact on individuals, institutions, and cultural norms in that ancestor-venerating, socialist, civil-law system.  Most of the scholarship is coming from inside China, of course, and the common theme is the need to “nativize” the transplanted trust in order for it to thrive, or at least do no harm, in its new environment.  One Chinese scholar has described the process as “absorbing what is useful and discarding what is not.”

In American Trust Law in a Chinese Mirror, Professor Frances Foster combines impressive trust-law credentials with fluency in Chinese language to unveil and explain a robust and intelligent critique of the so-called American trust.  What makes this article particularly fascinating is Professor Foster’s focus on the implications of this critique to the evolution of trust law in the United States.  As she explains, “legal transplants can provide a mirror for donor countries to see flaws in their own systems and new directions for reform.” Continue reading "Mirror, Mirror on the Wall, Is China’s Trust the Fairest of All?"

Governing Through Sex Crimes?

Corey Rayburn Yung, The Emerging Criminal War Against Sex Offenders (2009, forthcoming Harvard Civil Rights- Civil Liberties Law Review), available at SSRN.

Twenty years or so ago, when I was a baby law professor, I asked a senior critical legal studies scholar for promising areas to write about, and he warned me against taking up criminal law. The problem with criminal law and procedure for a critical thinker, he told me, is that it arrives pre-deconstructed, so to speak. No room for the kind of clever unveiling of buried fundamental contradictions that, one hoped, would be rewarded with tenure. Whether one adopted the political theory language of Carl Schmitt’s “state of exception” or the sociological language of Albert Cohen’s theory of “moral indignation,” American criminal law and procedure, like American Indian law, was driven by extra-doctrinal pressures that were painfully obvious to all.

Twenty years later, this is still true. And a lot of criminal law and procedure scholarship is incredibly boring for this reason: It pretends that doctrinal craft and/or moral theory actually matter. The work that isn’t boring, however, situates criminal law and procedure in its cultural and political context; and the article I like a lot this month is an excellent example, providing a useful guide to an ongoing crisis in American law and culture. Continue reading "Governing Through Sex Crimes?"

A Neglected Strand of Retributivism

Jeremy Waldron, Lex Talionis, 34 Ariz. L. Rev. 25 (1992).

Although Jeremy Waldron’s article on the lex talionis is not as recent as most of the other writings covered by JOTWELL, I came upon it only a couple of years ago.  I feel that it should be discussed here, because it has not received as much attention as it deserves within the philosophy of criminal law.

Retributivism as a philosophy of punishment has emerged in a multitude of forms, but virtually every retributivist maintains that punishments should fit the just deserts of offenders. That abstract idea has been cashed out with somewhat more concrete principles, each of which is itself in need of cashing out.  Many retributivists invoke the notion of commensurateness, as they contend that the severity of any punishment should match the seriousness of the crime(s) for which the punishment is imposed.  Commensurateness, a cardinal property, consists in quantitative equivalence.  Many retributivists additionally or alternatively rely on the notion of proportionality, as they contend that any differences in the severity of punishments should be correlated with differences in the gravity of the crimes for which the punishments are imposed.  Proportionality, an ordinal property, consists in an alignment between two sets of quantitative gradations. Continue reading "A Neglected Strand of Retributivism"

Conceptualizing Comparative Labour Law

Roger Blanpain, Memoirs: What Can I Do For You? (Vanden Broele 2009).

Back in the day, comparative law as taught in most U.S. law schools meant a comparison at quite the abstract level of the civil law and common law systems. While still interesting and valuable, that rather limited approach has been bolstered by approaches that look to specific areas of law within those two more general legal systems. Within the current thrust of comparative scholarship, there are two schools. One is to start with an area or subject of law and then find and compare the laws of the different countries on that particular subject. The second approach is to start with a country and then find the particular subject of interest so that it can be better understood within the specific context of that country.

A problem with the first approach is that it is formalist. Looking at the laws so abstractly leaves them decontextualized. The “law in action” in any particular country may be surprisingly different from what the words suggest or what those words mean in action in different jurisdictions. The second approach emphasizes the significance of context: the culture, politics and economy of the countries examined. With that base, then a specific law or area of the law can be much more completely understood. An example will show the difference between the two approaches. Utilizing the first approach in trying to learn about the Mexican Constitution, you would read it and, based on the language, would predict that the governmental structure in Mexico is much like that in the U.S. because the Mexican Constitution was modeled on our Constitution. Both are organized horizontally at the national level with a separation of powers structure and vertically with a federal system. The second approach would look at the Mexican Constitution in action and conclude that the governmental structures of the two countries have been quite different, notwithstanding the similarity in the structure supposedly established in the two constitutions. At least until the turn into the 21st Century, governmental power in Mexico was essentially concentrated in the hands of one person, the President, who was in effect a term limited absolute monarch. Continue reading "Conceptualizing Comparative Labour Law"

Imperfect Principals and Lobbyist Agency Costs

Matthew Stephenson and Howell Jackson, Essay, Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. Legis. 1 (2010).

One of the secrets to scholarly success is picking interesting topics.  It also helps if your analysis makes an interesting topic even more interesting.  That’s exactly what Matthew Stephenson and Howell Jackson have done in their essay Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. Legis. 1 (2010).  In this well-written and engaging essay, Stephenson and Jackson describe how principal-agent problems manifest themselves in the lobbying context and hypothesize on how these manifestations might affect public policy outcomes.

Wherever there are principals and agents, there are principal-agent problems, but the lobbying context is not one that readily comes to mind as infected by a serious problem.  Lamenting that principal-agent problems in the lobbying context have not received the attention they deserve, Stephenson and Jackson demonstrate that lobbyists are far from perfect agents and that the principal-agent slack in the relationship has serious consequences for lobbying’s public policy outcomes. Continue reading "Imperfect Principals and Lobbyist Agency Costs"