Yearly Archives: 2011

Procedural Values and the Mechanics of Federal Appeals

Some federal judges think that they do not have much to learn from legal academics. At the very least, though, perhaps these judges could learn from legal academics some fruitful ways to learn from other judges. A good start down that road could begin with a recent article by Marin Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, in the Duke Law Journal.

In Mechanics, Levy offers a descriptive, analytical, and normative examination of case management practices in the federal circuit courts of appeals. These practices guide determinations about, among other things, “whether a case will receive oral argument or be decided solely on the briefs, whether its disposition will be drafted by judges and their law clerks or by staff attorneys, and whether it will be resolved by a published opinion or an unpublished, non-binding order.” Levy describes significant variations in these and other case management practices among the circuits that she has studied in depth. (P. 317.) For example, staff attorneys are heavily involved in screening cases for oral argument in the D.C., First, and Fourth Circuits, but “play almost no role in screening” in the Second and Third Circuits. (P. 339.) To pick another example, in the Fourth Circuit, only 13.1% of cases terminated on the merits have oral argument, whereas close to half of all such cases in the D.C. Circuit receive hearings. (Pp. 359-60.) Continue reading "Procedural Values and the Mechanics of Federal Appeals"

Ramble On: How Workplace Rights Depend On Employee Conversations

How and why do workers join unions?  These most basic questions remain the source of significant academic and policy debate.  Over the past two decades, unions, employers, and scholars have refocused on the importance of organizing and, in turn, the law relating to employee representational choice.  The Employee Free Choice Act—currently in legislative limbo—would dramatically change the current structure by allowing unions to collect signature cards from a majority of the workers to be represented.  Under the current system, however, unions must provide signature cards from at least thirty percent of the employees in order to move on to a secret ballot election.  In the campaign period before the election, both parties are allowed to press their case vigorously—within limits.  In a notable turn of phrase, the NLRB endeavors to establish “laboratory conditions” during the campaign period in order to determine the “uninhibited desires” of employees.  General Shoe Corp., 77 N.L.R.B. 124, 127 (1948).  As it turns out, establishing laboratory conditions is largely confined to a series of prohibitions: no threats, no bribes, no racially inflammatory speech.  There is no obligation to insure that employees have the information they need to make a proper decision.

In Communication Breakdown, Professor Hirsch takes a new and compelling angle on this regulatory approach.  While recognizing the importance of protections against coercion, he argues that the law has thus far overlooked the importance of positive employee discourse.  He makes his case systematically.  First, Hirsch marshals economic and psychological concepts to support the critical role of discourse in group cooperation.  Using the work of scholars such as Olson, Ostrom, Axelrod, and Bar-Tal, Hirsch convincingly demonstrates how communication of information between interested parties is a critical catalyst to collective action.  Without communication, parties cannot identify and evaluate collective interests or develop a plan of concerted action.  Information-packed communication exchange—which Hirsch calls “discourse”—must be protected and even encouraged in order for employees to determine whether they would benefit from unionization. Continue reading "Ramble On: How Workplace Rights Depend On Employee Conversations"

Trademark Dilution and Corporate Personhood

Sandra L. Rierson, The Myth and Reality of Dilution, 2012 Duke L. & Tech. Rev. __ (forthcoming), available at SSRN

It’s become almost passé to decry our federal trademark dilution laws.  The laws – first passed in 1995 and amended in 2006 – protect “famous trademarks” against uses that are likely to dilute their distinctiveness, without regard to any confusion among consumers or competition between the parties.  Early critics warned that passage of the anti-dilution statute marked a turning point in trademark law:  by giving famous trademark holders rights against even non-confusing uses of their marks, the law created “property”-like rights in trademarks.  The initial commentary on the statute focused mainly on the costs associated with this increasingly absolutist approach to trademark rights.

After several years of witnessing the dilution laws in action, however, the nature of the commentary has shifted.  Scholars have gone from a state of wary watchfulness to one of bemused head-scratching, as they have unpacked the theoretical underpinnings of the doctrine and observed its treatment in the courts.  Dilution laws, it turns out, are a solution in search of a problem, and have had little practical effect.  We have learned that consumers can handle linguistic clutter, so the supposed harm from dilution – the gradual whittling away of a mark’s distinctiveness – lacks empirical support.  We’ve heard that the fear of famous trademark holders – that third parties have an incentive to adopt their mark in entirely unrelated markets – defies reality, in which businesses have little interest in replicating someone else’s utterly irrelevant mark.  And we’ve been told that the dilution claim has made virtually no difference in the outcome of trademark litigation.  No doubt because good old-fashioned trademark law gives owners rights to prevent uses in widely disparate markets, the owners of famous trademarks didn’t need this new statute to protect them against use of their marks even on unrelated products. Continue reading "Trademark Dilution and Corporate Personhood"

The Appellate Review Model of Agency Adjudications

In our field, there are a few articles that every academic, even practitioners, should read for an understanding of modern administrative law: the so-called seminal works.1 In my opinion, Professor Thomas Merrill’s latest article—Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law—should be added to this list. In his article, Professor Merrill examines the historical development of the appellate review model as applied to administrative adjudication, and while this choice for judicial review was not inevitable, it has had wide-ranging consequences. Professor Merrill’s article explores both the origins and consequences of this model to explain, in part, why the Supreme Court “never seriously grappled with” the constitutionality of administrative adjudication. With this Article, Professor Merrell aims to explain and, perhaps, reignite the age-old question: “How … do we square adjudication on a mass scale by administrative agencies with text of Article III?”

In the first half of the Article, Professor Merrill details the adoption of the appellate review model in the administrative context and concludes that the adoption of this model explains why the Supreme Court so readily accepted agency adjudication. Prior to the twentieth century, courts either reviewed administrators’ actions pursuant to the prerogative writs (e.g., mandamus and habeas corpus) or did not review these actions at all. Yet, around the turn of the century, the courts adopted the appellate review model, which allowed agencies and courts to share decisional authority. Specifically, the appellate review model of judicial review, which mirrors the relationship between appellate and trial courts in civil litigation, has three salient features. First, a reviewing court decides appeals using only the evidentiary record generated below; if more evidence is needed, the court remands the case. Second, the appropriate standard of review varies according to whether the issue falls within the area of expertise of the reviewing court (law) or the lower tribunal (facts). Lastly, the law-fact distinction is the key variable for dividing judicial competence. Continue reading "The Appellate Review Model of Agency Adjudications"

Open Government and the Implementation of the Dodd-Frank Act

Kimberly D. Krawiec, Don’t ‘Screw Joe the Plummer’: The Sausage-Making of Financial Reform (2011), available at Duke Law Scholarship Repository.

Much recent scholarship on financial regulatory reform since the global financial crisis critiques the substance of new standards and rules. For this paper (the draft is dated September 2011) Kimberly Krawiec chose to examine the process which produces rules of financial regulation (this is the sausage-making of the paper’s title). The current administration, like governments of other countries, has emphasized the importance of transparency and open government and of opening up decision-making to citizen participation, so an academic study like this paper, which examines citizen participation in rule-making, is timely and important.

The paper’s case study is of the Volcker rule, which restricts proprietary trading and ownership interests in hedge funds and private equity funds by banking entities. Professor Krawiec chose to focus on the Volcker rule because it “had the potential to illuminate questions of whose voice gets heard on a major issue of financial reform as the sausage is really getting made”. The Dodd-Frank Act left significant discretion to regulators with respect to the details of this rule (and others): key terms and the contours of the exceptions to the bans are not clearly defined. Professor Krawiec explains that the exceptions were a necessary component of a compromise between those who thought that Dodd-Frank should do more to rein in large financial institutions and those who were sympathetic to complaints from financial institutions. She also points out that much of the trading the Volcker rule explicitly permits shares objective characteristics with proprietary trading, such that the motive for the trading is the distinguishing characteristic. Continue reading "Open Government and the Implementation of the Dodd-Frank Act"

Understanding ADR in the Non-Union Workplace

Zev J. Eigen and Adam Seth Litwin, A Bicephalous Model of Procedural Justice and Workplace Dispute Resolution, Northwestern Law & Econ Research Paper No. 11-21, available at SSRN.

Much has been written about arbitration of employment disputes in the nonunion sector.  Much of this literature is theoretical and declamatory, rarely involving an examination of actual institutional arrangements, outcomes and perceptions.1 Some work has been done on outcomes in nonunion arbitrations, but these are hobbled by the inability to track the path different claims may take, including withdrawal and settlement.2 Employee perceptions have been studied in the union sector, but almost nothing has been done in nonunion companies, and certainly nothing that is able to provide a direct measure of innovations in alternative dispute resolution (“ADR”)  systems in a given workplace.

Armed with a Ph.D. in Management from the Sloan School at MIT, his J.D. degree from Cornell, and management labor-side experience at Twentieth Century Fox and several  law firms,  Zev Eigen of  Northwestern University School of Law is uniquely positioned and likely to improve this state of affairs in the study of the nonunion workplace.   Eigen understands economics and the importance of revealed behavior but he is equally sensitive to the insights of psychologists like my colleague Tom Tyler. Perceptions of fairness affect behaviors, which have feedback effects for each other. Continue reading "Understanding ADR in the Non-Union Workplace"

The Problem of Bullying

Daniel Monk, Challenging Homophobic Bullying in Schools: The Politics of Progress, 7 (2) Int’l J. L. Context 181 (2011).

How is it that people of wildly varying politics come together in viewing homophobic bullying in schools as an urgent problem? With whom does tackling homophobic bullying through a law-and-order paradigm make us allies? What forms of systemic homophobia, at home and in schools, does a focus on individual bullies obscure? What assumptions about queer adolescents’ sexuality and agency underwrite campaigns against homophobic bullying? Why is it so much easier to crack down on bullies in school than it is to talk openly about sex?

The strength of Daniel Monk’s article is that he shows convincingly that people committed to fighting homophobia can and should ask these questions. His interest is the “conditions of possibility” that have constructed homophobic bullying, discursively, as “a legitimate object of social concern within civil society.” Monk identifies the key discourses that have converged so as to legitimate concern about homophobic bullying. He also explores the political investments that underlie them and the responses to bullying grounded in penal or criminal law. Continue reading "The Problem of Bullying"

The Short-Run Inelasticity of Constitutional Law

Richard H. Pildes, Is the Supreme Court a ‘Majoritarian’ Institution?, 2010 Sup. Ct. Rev. 103 (2010).

In the large and ever-growing category of articles I wish I’d written, the latest entry is Rick Pildes’s withering critique of a standard line about the Supreme Court.  The standard line holds – roughly speaking, and its imprecision is one of the article’s main points – that the Court “cannot and does not stray too far from ‘majoritarian views’ ….  If the Court does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far.” (p. 105).  In the context of the Court’s recent Citizens United decision, Pildes exposes the ambiguity and fragility of this view.

Pildes traces the thesis of a majoritarian Court back as far as a book by Dean Alfange in 1937, although the same claims were clearly articulated by James Bryce in his neglected classic The American Commonwealth, first published in 1889.  Whatever its origins, the thesis is usually associated with Robert Dahl’s classic 1957 article, which Pildes contrasts with the nearly contemporaneous identification of the “countermajoritarian difficulty” in Alexander Bickel’s 1962 book on the Court.  Pildes argues that later commentators have taken the Dahl article and run too far with it, overreacting against a romanticized image of the Court as heroic guarantor of minority and individual rights.  Thus Pildes offers a partial rehabilitation of Bickel as against, not Dahl himself, but rather Dahl’s successors. Continue reading "The Short-Run Inelasticity of Constitutional Law"

The Benefit of an Exterior View: Looking at Lawyers from an Outsider’s Perspective

Susan Segal-Horn and Alison Dean, The Rise of Super-Elite Law Firms: Towards Global Strategies, 31 Serv. Indus. J. 195 (2011).

Two years ago I had an opportunity to attend the “Future(s) of Professional Services Programme” organized by Harvard Law School and Oxford Said Business School.  It was a terrific conference in many respects, not least for its interdisciplinarity, bringing together scholars from business and law whose work focused on professional service firms. As a lawyer studying law firms in the context of globalization, the insight of the business scholars was enlightening: by placing law firms in the larger context of professional service firms and by bringing the framework of management and strategy to bear on the study of law firms, legal scholars gain a new perspective from seeing the same picture from a different vantage point.

In truth, conversations with law firm leaders and others that have informed my own work on globalization and the legal profession indicate that decisions about law firm globalization and strategy are neither so clean nor logical as some of the management and strategy school research suggests. Rather, law firms’ activities with regard to globalization often are as much reactive and opportunistic as strategic. Nonetheless, the analysis of the business school scholars reflects the reality of regulation outside of the US, in that regulators involved in international as well as foreign regulation of their domestic legal profession increasingly are not trained as lawyers and have little incentive to treat lawyers particularly differently than other professional service providers (see, for example, Laurel Terry, The Future Regulation of the Legal Profession: The Impact of Treating the Legal Profession as “Service Providers). Continue reading "The Benefit of an Exterior View: Looking at Lawyers from an Outsider’s Perspective"

The Human Condition And the Liberal Order

Martha Albertson Fineman, The Vulnerable Subject and the Responsive State, 60 Emory L. J. 251 (2010), available at SSRN.

Have philosophers of the liberal political order been correct in their understandings of the human condition? Moral arguments for liberalism have sometimes been difficult to separate from a standpoint from which liberal order appears as the archetype for social order generally: the human condition in its most exalted and successful form. Certain features of the Kantian legacy have provided much intellectual nourishment for liberal thinkers. Kant tells us: sapere aude! Lean not on others, but become autonomous! Neo-conservatives have seized upon this aspect of Kant’s thought, celebrating liberal society’s facilitation of the autonomous agent. Socialists, forced to engage with a liberal order that has triumphed over their deepest dreams, have emphasized a different dimension of Kant’s legacy, centring upon his ideas of equality and of justice.

Taking as its starting point ideas of equal protection under the United States Constitution, Martha Fineman’s article offers a criticism of recent writing in liberal theory for failing to understand the human condition in the right way. The most pressing characteristic of the subject of liberal politics is not autonomy, but vulnerability. One might say that neo-conservatives and those on the liberal left have misunderstood the nature of human vulnerability. For conservatives, vulnerability is connected with unfreedom. Full of ideals of personal liberty, they insist that as the state increases its organization of the welfare of the private sphere, people will become less resilient. Individuals must learn to stand on their own two feet if society is not to produce a class of dependent people. They have a point. Individuals will only become masters of their situation if they are allowed to create their own arrangements. Human freedom is a more ingenious solver of problems than the government’s legislative schemes. But liberal society itself does not equal the defeat of acquisitive and competitive instincts in human nature. Indeed, liberal society is unimaginable without a market that is also free to operate in uneven and cruel ways. The same neo-conservative philosophies thus also increase vulnerability, leading many to curse the inhumanity of a faceless system (the market) which remains harshly indifferent to their needs. Continue reading "The Human Condition And the Liberal Order"

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