Monthly Archives: January 2011

A Global History of Law, Empire, and Geography

Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 (Cambridge: Cambridge University Press, 2010).

Lauren Benton is well-known as one of the leading scholars exploring the relationship between law and colonialism in a world history perspective.  Her prize-winning 2002 monograph, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900, rested on the considered belief that early modern and modern empires were everywhere marked by significant legal pluralism.  Yet legal pluralism took different forms.  Early European settlements in the Americas, Africa and Asia began with a “multicentric legal order;” a robust pluralism characterized by multiple systems of law and tensions among semi-autonomous European and indigenous jurisdictions, associations, and corporations exercising their own prerogatives.  “Legal jockeying” among settlers and between Europeans and indigenous leaders invited the colonial state to assume a superintending role over competing private and quasi-governmental jurisdictions.  A “state centered legal pluralism” thus emerged in many areas of the world.

The purpose of the book was not to better illuminate the history of a particular country or region.  The book was problem-driven: at the center was the transition from multicentric to state-centered legal pluralism.  Her expert deployment of case studies from four continents raised the stakes, suggesting the importance of a phenomenon that recurred in empires throughout the world.  Her global perspective also allowed her to identify the causes of the transition, an endeavor harder to do and perhaps less convincing when confined to one country or empire.

Benton’s methodological commitments, along with her customary imagination and erudition, are on display in her new monograph, A Search for Sovereignty: Law and Geography in European Empires, 1400-1900.  She rethinks the relationship between law, geography, and jurisdictional politics in European overseas empires using a wide range of case studies drawn from the French, Portuguese and especially the Spanish and British empires between the fifteenth and nineteenth centuries.  Her global approach allows her to contest two well-established narratives in imperial and legal history.  To begin with, historians commonly assume that European empires wished to assert control over distinct territories defined by maps.  Imperial administrators gradually, with fits and starts, enhanced the ground-level effectiveness and geographical reach of their rule.  But Benton’s close look at geography and jurisdictional politics calls into question this familiar story about the “rationalization of space” (p. xii).  Though empires claimed territory defined by charters and treaties, they typically controlled “narrow bands, or corridors, and . . . enclaves and irregular zones around them.”(p. 2)  These “lumpy” empires were made up of nodes and pathways—sea lanes, trading posts, missions, towns, and garrisons—each maintaining uncertain and changing legal relations to the metropole.  Imperial authority was patchy: strongest in corridors and enclaves and weaker elsewhere. Continue reading "A Global History of Law, Empire, and Geography"

New Jotwell Section: Legal History

Today we inaugurate a new Jotwell section on Legal History, edited by Prof. Kunal Parker of the University of Miami School of Law and Christopher Schmidt of the Chicago-Kent College of Law. Together they have recruited a stellar team of Contributing Editors.

The first posting in the Legal History section is A Global History of Law, Empire, and Geography by Richard Ross. Expect other new sections in the coming months. Please get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

One Solution to the Enigma of Victims’ Rights Theory

Aya Gruber, A Redistributive Theory of Criminal Law, 52 Wm. & Mary L. Rev. 1 (2010), available at SSRN.

Every time I teach a course in which the role of victims in the criminal justice system comes up, I find myself explaining to my students that crime victims and their families have played a prominent role in the system only since the 1980’s—that it wasn’t always thus.  For my students, the reference is akin to a mention of the role of counsel at British common law—something that happened a long time ago and probably won’t be on the exam.   In one sense this reaction is accurate—the role of victims in the system is firmly entrenched both in law and in the public perception.   The problem is that while the role of victims expands, criminal justice theory stays frozen in the pre-victims’ rights era, with little attention to where victims fit into the adversarial framework or the goals of punishment.

Should victims have a say on whether the defendant is charged with a crime, or on the seriousness of the charges? Should the families of murder victims weigh in on whether the death penalty is warranted? Who should prevail in a conflict between prosecutor and victim, or between the needs of victims and the rights of defendants? What should happen when victims are divided on charging or sentencing issues?  It’s hard to give any good answer to those practical questions in the absence of a theory of victims’ role in the criminal process.

Criminal law continues to stick to the standard story that we punish to deter, to exact just deserts or to incapacitate. All these rationales center on what the defendant deserves or on protecting society as a whole. Where the welfare of individual victims fits into that story is rarely specified.  Although retributivist scholars have grappled with the question, they’ve had a hard time linking a theory of just deserts with a satisfying account of how much say a particular victim should have over the fate of the offender.  Victim-centered goals end up wedged uneasily into retributive frameworks.

Aya Gruber’s article, A Redistributive Theory of Criminal Law, is a bracingly provocative examination of the theoretical bases for victim-centered changes in the law. Continue reading "One Solution to the Enigma of Victims’ Rights Theory"

Queensland Law Firms Partner with Regulators and Researchers to Improve Firms’ Ethical Culture

John Briton & Scott McLean, Lawyer Regulation, Consciousness Raising, and Social Science (summary in Geo. J.  Legal Ethics, forthcoming 2011); Christine Parker & Lyn Aitken, The Queensland “Workplace Culture Check”: Learning from Reflection on Ethics Inside Law Firms (Geo. J.  Legal Ethics, forthcoming 2011).

The American Bar Association Ethics 20-20 Commission should pay some serious attention to Australia. With the Legal Services Act 2007 slated to come into full effect on October 6, 2011, with the licensing of Alternative Business Structures for law practice in England and Wales, all eyes—well, some keen eyes, anyway—have been on the U.K. and its establishment of a regulatory framework for these new organizational forms.  But Australia has been regulating “alternative business structures” since 2001, when New South Wales became the first state to allow incorporated law practices (ILPs). Australia’s National Legal Profession Model Bill 2006 includes provisions allowing law firms to have non-lawyer directors and shareholders, and Australia, so far, has the only experience regulating publicly listed law firms. Australia,therefore, has a head start in thinking about the regulation of law practice organizations, whether they be traditional partnerships or alternative, corporate, forms.

Perhaps the most laudable feature of the emerging Australian model is its emphasis on law firm self-assessment and the collaboration this engenders between regulators, researchers, and firms. This collaboration was on full display at the 2010 International Legal Ethics Conference, in a pair of papers analyzing the data on law firm self-assessment, one from a regulatory and the other from a research perspective. Continue reading "Queensland Law Firms Partner with Regulators and Researchers to Improve Firms’ Ethical Culture"

Hoisted by their own Petard: Struve Applies Pretext Analysis to the Court, Finds Justices’ Motives Questionable

Catherine T. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 51 B.C. L. Rev. 279 (2010).

Things we like (lots): Irony.

In 1973, the Supreme Court gave us McDonnell Douglas, the ubiquitous framework for proving discrimination under disparate treatment statutes such as Title VII.  McDonnell Douglas has been widely criticized – often for good reason.  McDonnell Douglas places the full burden of proving discriminatory causation on the party least equipped to prove it: the plaintiff.  Additionally, most courts have read McDonnell Douglas as requiring but-for causation for liability, which provides an unjustified windfall to defendants in many cases where multiple motives are at play.  Yet, despite these flaws, McDonnell Douglas does one thing well:  It allows us to ascribe unsavory, and possibly discriminatory, motives to defendants who dissemble – those who provide non-credible reasons for their actions.

There are alternatives to McDonnell Douglas, including the Court’s 1989 Price Waterhouse framework.  Price Waterhouse, too, was vulnerable to criticism.  But at least that case permitted burden-shifting on the issue of causation.  Yet, in Gross, the Court repudiated Price Waterhouse – at least in ADEA cases.  In such cases, the Court held, plaintiffs bear the full burden of proving but-for causation.

In her new article, Catherine Struve questions the Court’s motives in Gross.  And she does so using a pretext analysis that is deliciously reminiscent of a McDonnell Douglas pretext analysis. Continue reading "Hoisted by their own Petard: Struve Applies Pretext Analysis to the Court, Finds Justices’ Motives Questionable"

Speech and Markets

Deborah Hellman, Money Talks but it Isn’t Speech, 95 Minn. L. Rev. — (forthcoming 2011), available at SSRN.

Is there anything new to say about the constitutionality of campaign finance regulation?  Well, actually, there is, and Deborah Hellman says it in her fine new article “Money Talks but It Isn’t Speech.” The significance of Hellman’s article extends beyond the vexed yet tired issue of campaign finance, however.  Her work is an important intervention in a central – perhaps the central – problem in modern constitutional law.

To understand what that problem is, we need a brief and necessarily crude overview of twentieth century constitutional history.  During the first third of the century, civil liberty rights, to the extent that they existed at all, were closely linked to property and market rights.  The reigning ideology treated both as within a private sphere. Liberty was defined as the absence of government intervention, and, at least in principle, there was no distinction between free markets in goods and free markets in speech, both of which were judicially protected by limits on the political branches. Continue reading "Speech and Markets"

IP Law and the New Experimental Empiricism

Christoph Engel & Michael Kurschilgen, Fairness Ex Ante and Ex Post: An Experimental Test of the German “Bestseller Paragraph,” available at SSRN.

It is often said that in the late 20th century, the legal academy took an “empirical” turn with the rise of law and economics.  But the word “empirical” is not quite right as a characterization of the direction in which law and economics has nudged the legal academic literature.

Much of law and economics, especially in its early years, involved the application of (often very basic) economic theory to an expanding list of legal issues.  The aim was to use an abstract form of economics to reform legal doctrine.  That work was more theoretical than empirical, but that isn’t meant as a criticism – many areas of legal doctrine were so badly theorized that even basic economic interventions yielded up valuable insights. Continue reading "IP Law and the New Experimental Empiricism"