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"


Jonathan Zittrain, Ubiquitous Human Computing, Phil. Trans. R. Soc. A, vol. 366 no. 1881 3813-3821  (28 October 2008).

A banana usually sells for about 30 cents.  On average, the plantation owner gets 5 of those cents; the shipper, 4 cents; the importer/ripener, 7 cents; and the retailer, 13 cents.  That leaves one penny for the worker who picked the banana.  Fruit economics helps drive the politics of “banana republics:” as the unpaid laborers and netizens at Wikipedia note, such countries are “politically unstable,” “dependent upon” commoditized crops, and “ruled by a small, self-elected, [and] wealthy . . . clique.”  Oligarchs at the top set the direction of society; workers merely play the roles assigned them.  Truth doesn’t matter much; as Paul Krugman noted, one political party promised voters to save money on gasoline by “building highways that ran only downhill.”

Commentators have begun to wonder if the United States is becoming a banana republic.  Nicholas Kristof concludes that “You no longer need to travel to distant and dangerous countries to observe . . . rapacious inequality. We now have it right here at home.”  Chronicling endless financial industry shenanigans, critical finance blogger Yves Smith seems to label every third post “banana republic.”

Wasn’t the internet supposed to solve these problems? Wouldn’t a “wealth of networks” guarantee opportunity for all, as prediction markets unearthed the “wisdom of crowds?”  It turns out that the net, while mitigating some forms of inequality in the US, is accelerating others.  Jonathan Zittrain’s essay “Ubiquitous Human Computing” examines a future of “minds for sale,” where an atomized mass of knowledge workers bid for bite-sized “human intelligence tasks.”  Zittrain explores some positive aspects of the new digital dispensation, but the larger lesson is clear: without serious legal interventions, an expansive global workforce will be scrambling for these jobs by “racing to the bottom” of privacy and wage standards.  This review explains Zittrain’s perspective, applauds his effort to shift the agenda of internet law, and argues that trends untouched on in Zittrain’s essay make his argument all the more urgent. Continue reading "Banana"


Marc Spindelman, Essay, Sexuality’s Law,  20 Colum. J. Gender & L. (forthcoming 2011).

Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.

Professor Spindelman begins his essay with a legal puzzle: why is it that out of the thousands of men who have been infected with HIV through consensual sex with another man who failed to disclose his HIV status, almost none have sought to use the law’s tools so as to seek redress for the injuries done to them?  The transmission of disease through sex might be intentional, reckless, or negligent, and in any event, occasioned without the informed or knowing assumption of the risk by the person infected.  Yet we see virtually no criminal prosecutions for homicide when this occurs intentionally, and almost no civil awards of damages when it occurs recklessly or negligently.  Why?  Why have gay men not turned to the law to seek redress against other gay men who harm them, and often kill them, by not disclosing their HIV status in the course of consensual sex? Continue reading "Sex/Power/Law"

Wills, Slavery, and Wealth

Bernie D. Jones, Fathers of Conscience:  Mixed Race Inheritance in the Antebellum South (Univ. of Georgia Press 2009).

In her 1996 article, The Myth of Testamentary Freedom, Melanie Leslie argues that “many courts do not exalt testamentary freedom above all other principles” and “are as committed to ensuring that testators devise their estates in accordance with prevailing normative views as they are to effectuating testamentary intent.”   I have always agreed with this statement, but Bernie D. Joness new book, Fathers of Conscience:  Mixed Race Inheritance in the Antebellum South (Univ. of Georgia Press 2009), challenges this assertion.  In her analysis of appellate cases from the antebellum era, Jones tells the story of white male slaveholders who used trusts and estates law to grant freedom and/or property to their enslaved mixed-race children and their mothers, thereby circumventing the law of slavery.  These testators were counting on judges to exalt testamentary freedom above the law, especially in states where slaveholders’ ability to manumit during their lifetime was quite limited.

Although miscegenation was prohibited in the antebellum South, many white men had sexual relations (sometimes consensual, sometimes not) with female slaves and lived openly with Black women and the children they bore.  Despite strong disapproval, there was little that society could do to punish privileged white men who breached social norms.  However, these men did more than breach social norms when they sought to grant freedom, property, and the legal rights that follow, to mixed-race children and their mothers; their behavior threatened the institution of slavery itself. Continue reading "Wills, Slavery, and Wealth"

Taking Legal Origins Theory Seriously

John Armour et al., Law and Financial Development: What We Are Learning from Time-series Evidence (2010), at SSRN.

In the late 1990s, Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert W. Vishny (“LLSV”) launched a research project examining connections between legal rules governing investor protection and economic development. Working on the assumption that legal rules could be measured and quantified, LLSV purported to demonstrate that common law countries were more protective of outside investors – and, thus, more hospitable to economic development – than civil law countries. In the ensuing years, LLSV and other economists have expanded and refined their work, constructing the grandly named Legal Origins Theory, which holds that legal systems are important determinants of economic development. The influence of Legal Origins Theory is not confined to economics journals, but may be seen in policy reforms through the World Bank’s Doing Business reports.

While many legal scholars have dismissed this work because of its naïve assumptions about law and legal change, especially in early papers, a group of legal scholars at Cambridge University – led by Simon Deakin, John Armour, and Ajit Singh – took Legal Origins Theory seriously. Embracing the assumption that legal rules could be measured and quantified (“leximetrics”), the Cambridge Group produced legally sophisticated datasets on shareholder protection, creditor protection, and labor regulation. In Law and Financial Development: What We Are Learning from Time-series Evidence, published as part of a recent symposium on Legal Origins Theory in the BYU Law Review, four members of the Cambridge Group take stock of what we have learned from those datasets and chart some new directions for future research. Continue reading "Taking Legal Origins Theory Seriously"

Does the NBA’s Dress Code Violate Title VII?

D. Aaron Lacy, Represent: Hip Hop Culture, the NBA Dress Code, and Employment Discrimination (2010), available at SSRN.

Over 20 years ago, Detroit Piston Dennis Rodman ignited a firestorm of controversy by saying that if Larry Bird were white he would be considered “just another player.”  Pistons star Isiah Thomas was dragooned into explaining this remark during a broadcast of an NBA Finals game. While acknowledging that Bird was a superstar, Thomas made the broader point that race mattered in perceptions of NBA players.  White players were labeled “smart and hardworking,” black players were “naturally talented.”  Later in that same Finals series I heard a broadcaster describe a Lakers lineup (of all black players) as “thoroughbreds.”

Race has long been significant in sports, today perhaps nowhere as much as in the NBA.  Yet discrimination scholars have largely overlooked this fertile field.  Stepping into the breach, D. Aaron Lacy has written a provocative and worthwhile piece on a modern symptom of racial anxiety in NBA employment: the NBA dress code. Continue reading "Does the NBA’s Dress Code Violate Title VII?"