Monthly Archives: February 2011

Immigration and the Constitution: A New Historical Interpretation

Modern immigration law is built upon a specific historical foundation: the efforts of lawmakers to exclude Chinese immigrants from the country in the late nineteenth century.  Remarkably, all of the early cases affirming the constitutionality of Chinese Exclusion are still good law.  Based on this jurisprudence, Congress has “plenary power,” free of judicial oversight, over the substance of laws seeking either to exclude migrants or to deport them.  Hypothetically speaking, if Congress were today to pass a law declaring that people of Middle Eastern heritage would not be admitted into the country, it would not face constitutional scrutiny (unless, of course, the Court decided to overturn the Chinese Exclusion Case).  Plenary power has served to insulate immigration law not only from equal protection norms, as the above example demonstrates, but also from other constitutional challenges, including those to retroactive lawmaking.  To provide just one example, a legal permanent resident today can be detained and deported for a misdemeanor crime committed decades ago that was not a deportable crime at the time she committed it.

Scholars have critiqued the disconnect between immigration regulation and constitutional norms using a variety of methodologies.  Rarely, however, has legal history been among them.  The reasons for this are varied, but one of the primary ones is the relative silence of the Constitution on matters of immigration.  The Constitution does not explicitly refer to immigration at all, and the Framers did not expressly discuss immigration policy.  This has led to a widely-held assumption that there is not much to learn from the Founding Era to guide Congress and the courts in decisions about modern immigration regulation.  In their article, Reclaiming the Immigration Constitution, James Pfander and Theresa Wardon effectively challenge this assumption.  They do so using the most persuasive tools of legal history: in-depth, nuanced research into a rich and little-discussed trove of primary source material. Continue reading "Immigration and the Constitution: A New Historical Interpretation"

Encouraging Courts to Think Practically About Workplace Harassment

Susan Grover & Kimberley Piro, Consider The Source:  When the Harasser Is the Boss, 79 Fordham L. Rev. 499 (2010), available on SSRN.

In their excellent essay, Susan Grover and Kimberley Piro propose that courts explicitly consider whether a harasser is the target’s co-worker or the target’s supervisor in deciding whether harassment is sufficiently severe or pervasive to constitute actionable harassment under Title VII.  Grover and Piro argue that the same harassment will have a different effect on a reasonable employee – a core part of determining if the harassment is severe or pervasive – depending on whether the harasser is the target’s co-worker or the target’s supervisor.  The key point – that a supervisor’s direct power over an employee makes criticism or harassment from a supervisor much more harmful to the target’s employment than the same behavior by a co-worker – is virtually unassailable.

The essay identifies an important doctrinal issue.  However, its power is it that it raises a practical issue relevant to many workplace harassment disputes and considers how courts ought to address the practical issue through existing doctrine.  Rather than create an exotic problem and suggest that courts alter doctrine to address it, the essay makes a very precise point and offers a real prescription for addressing the point.   The prescription can be incorporated very easily by courts into their analyses of current harassment cases because it does not require the extension, alteration or reinterpretation of Supreme Court doctrine.  The authors implicitly suggest that courts should already be taking the status of the harasser into account when evaluating the severity or pervasiveness of the subject harassment because doing so is already consistent with the Supreme Court’s Title VII doctrine.  That may not be the flashiest legal scholarship, but it is very important and worthy of note as a TILL (Thing I Like Lots). Continue reading "Encouraging Courts to Think Practically About Workplace Harassment"

Evaluating the Independence of In-House Counsel – Making Sense of Judicial Pronouncements

Suzanne Le Mire, Testing Times: In-House Counsel and Independence, 14 Legal Ethics (forthcoming 2011), available at SSRN.

Particularly for those of us who live in Europe, Suzanne Le Mire’s new paper on in-house counsel independence is an interesting addition to the existing literature. In September 2010, the European Court of Justice (ECJ) gave its final ruling in the Akzo Nobel Chemicals and Akcros Chemicals v Commission test case regarding the availability of legal privilege for corporate counsel in relation to European Union competition investigations. In the course of its judgment, the Court made some fairly forthright assertions about the lack of independence of in-house lawyers – notwithstanding that the lawyer at the centre of the case was a member of their country’s national bar association.

While the controversial ECJ judgment is discussed in Le Mire’s paper, the case is not central to the issue she wishes to discuss. Instead, Le Mire goes back to first principles: in her introduction, she briefly discusses the pros and cons for companies employing independent in-house counsel – what are the specific challenges those lawyers face? what are their advantages? Here, Le Mire cites Lewis A Kornhauser when she argues that that “independence is not a goal in itself, but a pathway to another goal, such as credibility, or breadth of knowledge”. Continue reading "Evaluating the Independence of In-House Counsel – Making Sense of Judicial Pronouncements"

A Private Law Insight into a Public Law Problem?

D. Zachary Hudson, Interpreting the Products of Direct Democracy, 28 Yale Law & Policy Review 223 (2009).

For election law and statutory interpretation junkies, there’s a nifty student note in the Yale Law and Policy Review by Zachary Hudson on how to construe the products of direct democracy.  (In the interest of full disclosure, I should note that I played no role in supervising the paper).

As I teach my students in election law, judges always face a dilemma when trying to figure out what an initiative means.   Initiatives are often vaguely worded and lacking in detail.  And the usual tools courts deploy to deal with vague texts in the legislative context – like legislative reports – aren’t as helpful here.  Even when an initiative is accompanied by a handbook or the like, there’s no guarantee that the voters read it before they cast a ballot.  And judges are often reluctant to look to advertisements, media coverage, or surveys as evidence of the voters’ intent, as these inquiries seem pretty far afield from the usual assessments involved in judicial review.  Finally, we all know it’s hard to figure out Congress’ intent because Congress is “a they, not an it” (when you talk about “congressional intent,” you are really trying to capture the views of many legislators with vastly different motivations).  Needless to say, it is even harder to figure out the intent of the multitude we call “the people.” Continue reading "A Private Law Insight into a Public Law Problem?"

Jurisprudence for Emergencies

Stephen Holmes, In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror, 97 Calif. L. Rev. 301 (2009), available at SSRN.

Many thinkers have combined a high regard for the rule of law with a negative view of it. This is only an apparent, verbal, paradox. For it is common to understand the rule of law as good, less for what it enables and creates than for what it might prevent. On this interpretation, the point of law is to block and limit the possibility of unruly power, to curb and restrain power’s exercise.  This is not a new view. Recall Bracton’s revealing metaphor from the thirteenth century, of law as ‘the bridle of power,’ by which a just king, as distinct from a ‘tyrant,’ must ‘temper his power.’  The characteristics most associated with law changed over the centuries, particularly moving from custom to legislation, and with those changes went different conceptions of what the law needed to be like to do its proper work. However, the identification of the rule of law’s purpose with constraint endured. And it still does. Where the rule of law is commended, it is typically for what it rules out rather than what it rules in; what it restrains and prevents, rather than what it generates and encourages to flourish.

That is not the only way of viewing the rule of law, however, and arguably not the best. Jeremy Waldron has recently criticized views of constitutionalism according to which “[e]verything is seen through the lens of restraint and limitation,”1 and has insisted on the empowering role and potential of constitutional provisions. Similar points might be made about the rule of law. Stephen Holmes has long stressed the empowering consequences of law; what, in contrast to the more common negative conception, he calls “positive constitutionalism”2. Appropriately configured laws, on this view, provide “enabling constraints.”3. Continue reading "Jurisprudence for Emergencies"

When Employee = Employer

I admit to being old-fashioned enough to like well-done doctrinal articles. Especially ones that upset conventional wisdom – the courts, the agencies, and the law reviews – by suggesting that, not to put too fine a point on it, everybody’s wrong. Doctrinally. Such is Frank Menetrez’s piece Employee Status and the Concept of Control in Federal Employment Discrimination Law, 63 SMU L. Rev. 137 (2010). Frank doesn’t appear to be in the academy at the moment, but we could use more scholars like him.

Admittedly, I came to the piece with pretty low expectations – agency, control, what new could be said?  It turns out, plenty. Frank’s target is the notion that someone can’t be an employer and an employee at the same time, which explains why cases like Clackamas Gastroenterology Associates, P.C. v. Wells turn on whether the doctor-owners were “really” owners (in which case they were employers and, for the Court, couldn’t also be employees). Continue reading "When Employee = Employer"

When Corporations Translate Treaties

Natasha Affolder, The Market for Treaties, 11 Chicago J. Int’l L. 159 (2010), available at SSRN.

The transnational transmission of risk is increasingly visible as a subject of policy debate, from transnational terrorism to global warming, from food safety to the financial crisis.  These risk transmissions involve more fundamental security risks: for example, the global financial crisis has led to violent protests; low-lying states are threatened by rising water levels; populations facing issues of food security also have implications for security and stability more generally.  As these risks become increasingly recognized, international and transnational law, and also international standards, are increasingly relevant to US-based businesses. Private firms are affected when states enact and propose rules to address risks to global security, such as the SEC’s recent proposals for disclosures about the use of conflict minerals.

Our standard model of the impact of treaties (and agreements setting non-binding standards such as those developed by the Basel Committee) on non-state actors involves implementation through domestic legislation.  However, in this article Natasha Affolder argues that corporations engage with environmental treaty norms in ways that this standard model fails to reflect.  Instead, corporations interact with treaty norms directly and via the transnational standard-setting process.  Thus, she challenges the traditional model of treaty implementation and the usual separation between public international lawyers and scholars of private governance.  At the same time her article has implications for those of us who study the legal environment within which businesses operate, and illustrates a complex set of interactions between governmental and non-governmental bodies around environmental regulation and practices. Continue reading "When Corporations Translate Treaties"

Should Review Doctrine Be Simplified or Restated?

David Zaring, Reasonable Agencies, 96 Va. L. Rev. 2317 (2010).

David Zaring first makes two contributions to the growing empirical literature on judicial review of agency actions and then suggests a dramatic change in doctrine in light of his findings. Based on a study of 226 cases, Zaring found that courts uphold about 70% of agency actions when they apply either the substantial evidence test or the arbitrary and capricious test to agency findings of fact. He then combined his study with over a dozen other empirical studies of judicial review of agency actions to create a meta study of 5081 cases.

In his meta study, Zaring found that courts at all levels uphold about 70% of agency actions no matter what doctrine a court applies. Since choice of review doctrine has no apparent effect on the outcome of a case in which a court reviews an agency action, Zaring argued that courts should simplify review doctrine by replacing the six tests courts now apply with a single simple test—a court should uphold any reasonable agency action. Continue reading "Should Review Doctrine Be Simplified or Restated?"

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