Yearly Archives: 2010

Embattled Delaware

Mark J. Roe, Delaware’s Shrinking Half-Life, 62 Stan. L. Rev.125 (2009).

Poor Delaware.  The small state (45th in population and 49th in geographic size) is the dominant corporate law jurisdiction in the United States, and for decades the academic community has been fascinated with the reasons why.  Initially, scholars portrayed Delaware as the savvy champion of a fierce competition for corporate charters.  The quality of its courts, the richness of its case law, and the responsiveness of its legislature made Delaware the most attractive place to incorporate for US public companies.  When Marcel Kahan and Ehud Kamar’s wrote The Myth of State Competition in Corporate Law, 55 Stan. L. Rev. 679 (2002), the academic community’s view of Delaware had changed:  Delaware was not facing direct competition from other states, but rather winning by default.

More so than any other corporate law scholar, Mark Roe has tried to explain why Delaware still has much to fear.  Roe is well known for his argument, articulated in Delaware’s Politics, 118 Harv. L. Rev. 2491 (2005), that Delaware faces a competitive threat from the possibility of corporate governance regulation by the federal government.  Roe’s analysis, originally written in the wake of the Sarbanes-Oxley Act of 2002, has proven prescient with the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act last July, which introduced a host of significant corporate governance reforms for US public companies, including say-on-pay and proxy access. Continue reading "Embattled Delaware"

Exposing the Regulatory Reform Agenda of Large Law Firms

John Flood, The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation,  59 Current Sociology 2011, available at SSRN.

Lawyers and legal academics, especially in the US, have been very interested in the radical changes taking place to the regulation of the legal profession in England and Wales. These reforms will allow alternative “business structures” for law firms and put in place an independent “super-regulator” overseeing the legal profession. Similar reforms have already been instituted in Australia, generating their own share of interest. Much of the debate has focused on the possibilities of law firms incorporating and publicly listing their shares.  The most strident proponents of the new regulation welcome it as important economic innovation, while critics herald these developments as the collapse of the profession as we know it.

John Flood’s paper, “The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation”, forthcoming in Current Sociology and currently available on SSRN, provides a though-provoking analysis of how large law firms “are undermining, modifying, escaping and ultimately reconstructing professional regulation regimes.”  Flood’s paper was part of an excellent panel at the International Legal Ethics Conference in Stanford in July 2010, which included papers by Judith Maute and Andy Boon that also provided nuanced and sociologically insightful perspectives on the reforms overcoming the English legal profession. Continue reading "Exposing the Regulatory Reform Agenda of Large Law Firms"

Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies

Ellen Dannin, Hoffman Plastics as Labor Law—Equality at Last for Immigrant Workers?, 44 U.S.F. L. Rev. 393 (2009), available at SSRN.

In Marbury v. Madison, the Supreme Court early on affirmed as “indisputable” the rule “that where there is a legal right, there is also a legal remedy” and “that every right, when withheld, must have a remedy, and every injury its proper redress.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 William Blackstone, Commentaries *23, *109).

But while black letter law so instructs, employee status under the National Labor Relations Act does not always guarantee backpay to victims of unfair labor practices—or so explains Ellen Dannin in her well-documented review of the by now infamous labor-immigration case, Hoffman Plastics Compounds, Inc. v. N.LR.B., 535 U.S. 137 (2002).  Her article, which was part of the University of San Francisco’s symposium issue—The Evolving Definition of the Immigrant Worker: The Intersection Between Employment, Labor, and Human Rights Law—meticulously dissects the language of the Supreme Court’s opinion and the oral argument to show that Hoffman Plastics’ holding—that employers are not liable in backpay for violating the labor law rights of undocumented workers—is not an anomaly. Instead, it fits neatly into an historical trend of judicial amendments to the NLRA. Continue reading "Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies"

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?"