Monthly Archives: March 2011
This terrific book, coloured hot pink, has a black-and-white photograph of the Toronto Women’s Court on its cover. The photograph is filled with a lot of men, at least a dozen, all wearing suits, and only two women. Where were the women lawyers, women judges, women clerks and bailiffs, not to mention the female defendants who occasioned the gathering of all this officialdom? The court had a male judge for its first eight years. The small number of women in the photograph and the initial lack of a female judge points to the same kind of contradiction Amanda Glasbeek’s book is most concerned to highlight, namely, the way that this movement to create a female-friendly space for the “right” kind of woman (young ones who had temporarily lost their moral compass and needed to be protected) ended up mostly coercing, disciplining, and punishing a very different kind of woman (e.g. older veterans with persistent drinking problems who were deemed effectively non-reformable).
The maternal feminists who brought the court into existence and eventually got their female magistrate, Margaret Patterson, to preside over it, are subjected to the kind of discussion that leaves no doubt in one’s mind about the kind of reform they intended and achieved, not one with a paradoxical or unintended outcome for some women but one, Glasbeek argues, that did precisely what was intended, namely, “to separate the erring from the hardened, the daughters from the daughters of the night, and the women in need of protection from the women from whom the city needed protecting” (p.176). It was “an ideal reflection of the politics of the middle-class, white feminists of the TLCW [the Toronto Local Council of Women]” (p. 13). These women were moralistic, usually racist, and used the law to further a state-sponsored evangelical mission. Patterson herself, a physician by training, had been a missionary in colonial India who worked with the Indian army on venereal disease (p. 38). This pretty much says it all: “sexually active women [were] a moral and physical danger” (p. 155). Continue reading "Feminized not Feminist Justice at the Toronto Women’s Court"
Michael Stokes Paulsen, Our Perfect, Perfect Constitution
, Constitutional Commentary
(forthcoming 2011), available at SSRN
At the AALS conference this year, I was stung by a criticism a friend launched at Jotwell. Our mission, of course, is to bring the attention of busy readers to articles that the editors think are well worth the time. Well and good—but, this critic observed, most Jotwell reviewers pick articles they not only like, but agree with. They amount to statements that an article is good because it agrees with the reviewer’s own priors.
This is a natural human tendency, of course, but it’s still an apt criticism. A journal devoted to “Things We Like (Lots)” will be more interesting if the “Thing We Like” turns out to be something other than “Myself.” Suitably chastened, I have found my work for Jotwell significantly hampered. I would hate to be accused of writing these reviews as a form of amour propre. Vast numbers of articles that I have enjoyed in recent weeks have been rejected as review subjects because they have the unfortunate tendency to conform to my own (utterly sound) views on constitutional law. I have been searching for just the right piece: one that is enjoyable, interesting, and wrong. Thankfully, Michael Stokes Paulsen has come to my rescue.
Paulsen’s short and biting piece, Our Perfect, Perfect Constitution, is a model of its genre: constitutional scholarship as satire. (It is quite possible that most constitutional scholarship falls into this genre, although usually unwittingly.) Paulsen writes that he, like most constitutional scholars, has fallen into “a peculiar and aggressive strain of Stockholm Syndrome.” (P. 1.) After decades of criticizing the work of the courts, he writes, “I have, finally, succumbed. I now believe that everything in the U.S. Constitution is perfect. More than that, I have come around to the understanding that every Supreme Court interpretation of the Constitution is perfect as well.” (P. 1.) His job, then, is not to rewrite the Constitution as such, but to “update” it “to reflect, perfectly, the Supreme Court’s perfect interpretations of it.” (P. 1.) And so he does, in what he labels a “pocket part” that includes “not only what the Constitution says but also what it really means” according to the Supreme Court. (P. 1.) Continue reading "The Constitution’s Pocket Part"
Ellen Yaroshefsky, Foreword
to Symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really Works?
, 31 Cardozo L. Rev.
1943 (June 2010), available at SSRN
For years, Ellen Yaroshefsky of Cardozo Law School has been one of the leading scholars in the U.S. on issues related to legal ethics and the criminal defense system. In an era in which legal scholars are sometimes accused of writing theoretical works that are of little practical use, she has a track record of successful applied scholarship. Her voice has made a difference. For example, after working on the issue in New York, Ellen Yaroshefsky and Fordham Professor Bruce Green signed the report from the ABA Committee on Ethics, Gideon and Professionalism that recommended that ABA the Section on Criminal Justice sponsor a resolution in the ABA House of Delegates to add Rules of Professional Conduct 3.8(g) and (h). The resulting resolution, which was supported by a number of entities, was adopted. As a result, ABA Model Rule 3.8 now imposes disclosure duties on prosecutors who know of “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted” and requires prosecutors to “seek to remedy the conviction” if they have clear and convincing evidence that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit. This ABA Model Rule change has led to a number of concrete state rule changes that impose new duties on prosecutors. As of January 2011, two states had adopted the proposed revisions to Rule 3.8, three states had adopted a modified version of Rules 3.8(g) and (h), and eleven jurisdictions were studying the ABA resolution and report. I predict that many of these jurisdictions are likely to adopt Rules 3.8(g) and (h), which is what the relevant entity in my home state of Pennsylvania recently recommended.
The 2010 Cardozo Symposium entitled “New Perspectives on Brady and Other Disclosure Obligations: What Really Works” is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law. Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system. This is a broader problem than one might realize. For example, in 2010, the International Bar Association, the Organization of Economic Cooperation and Development, and the United Nations Office on Drugs and Crime jointly developed a survey on “Risks and Threats of Corruption in the Legal Profession.” The Survey was distributed to IBA member and 642 professionals from 95 countries responded. Although the Survey cautioned that its results might not be statistically significant, it also stated that the Survey represented “a first attempt to shed light” on issues that included the legal profession’s perception of corruption in their own jurisdiction. Nearly half of the respondents stated that corruption was an issue in the legal profession in their own jurisdiction. Approximately 20% of the responding lawyers from the U.S. and Canada thought corruption was an issue in the legal profession in their country. (This contrasts with approximately 15% of lawyers in Australasia, 32% of lawyers in the EU, and 90% of lawyers in the Commonwealth of Independent States.) Continue reading "Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases"
Globalization has produced transnational legal phenomena in need of theorizing. From this observation flow several questions about transnational legal phenomena such as private legal orders (e.g., ICANN, UDRP, Bernstein (1992) on diamonds), federal norms (e.g., EU law), international law that is not the product of treaties (e.g., lex mercatoria or the norms produced by the WTO appellate body), soft law and international arbitration (ADR). How should legal theorists make sense of these disparate yet related phenomena?
If we are to theorize these phenomena, what form should such theorizing take? This is the question taken up by Calliess and Renner. As they see it, the answer to the question of “global governance” is a mixture or blend of legal theory/jurisprudence and social science (here law and social norms). Each approach asks a different question. From the point of view of legal theory, the question is “analytical” (their word): how to differentiate legal from non-legal norms? Thus stated, the question is familiar to analytically minded legal theorists. The second dimension is advanced in the form of a challenge, which they state thus: “[T]he most pressing demand on contemporary jurisprudence is to make legal concepts compatible with those of the social sciences without at the same time losing sight of the very own purpose of legal thinking, i.e., the normative analysis of legal structures.” (p. 262) Continue reading "Transnational Law"
Susan Grover & Kimberley Piro, Consider the Source: When the Harasser is the Boss, 79 Fordham L. Rev. 499 (2010).
In Consider the Source: When the Harasser is the Boss, Professor Susan Grover and Kimberley Piro raise a crucial point that should inform the always-evolving jurisprudence of sexual harassment. They argue that the identity of a sexual harasser as a supervisor or a coworker should be, but is currently not, a central consideration in the determination of whether actionable sexual harassment occurred. The article recounts the Supreme Court’s requirement that actionable harassment needs to be, among other things, “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Despite this requirement, the article observes, most sexual harassment jurisprudence fails to factor in the distinction between supervisory and other types of harassment, like coworker harassment, when ascertaining whether a victim’s abuse is grave enough to warrant being deemed actionable harassment.
Courts adjudicating sexual harassment cases are required to factor in the totality of the circumstances surrounding the interactions at issue, focusing on the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Lower courts nationwide, however, have repeatedly refused to find actionable harassment where the abuse was quite severe or quite pervasive. The article notes insightfully that “[t]he crucial question of the harasser’s supervisory status has been one casualty of the courts’ disinclination to apply a true totality of the circumstances test.” (P. 507.) Continue reading "Surveying the Damage"
A cursory perusal of Richard Hyland’s Gifts: A Study in Comparative Law (2009) reveals a massive work of such erudition that the twenty years Hyland admits he devoted to it seems neither surprising nor, indeed, unreasonable. Gifts not only manages to do yeoman’s work for the practicing attorney—providing six chapters that survey the essential aspects of the substantive law of gifts in three common law and five civil law jurisdictions—but this work is likely to change the terms of future discussion about the gift among comparativists and other scholars in the humanities and social sciences. Demanding though this work is, however, the material remains thoroughly accessible. Written in prose that is a model of concise lucidity, the work will engage someone who picks it up and reads a section or two. But the book is ultimately a page-turner and anyone who absorbs one section is likely to succumb to its richness and turn to the beginning, reading the book as it ultimately demands to be read—from cover to cover.
The bulk of the work consists of six chapters that survey the law in the common law jurisdictions of England, the United States, and India, as well as the civil law jurisdictions of Germany, Italy, Spain, France, and Belgium. In addition, Hyland frequently gilds the lily with Roman, medieval, and early modern antecedents, especially where the law encompasses exception layered upon exception, only explicable—Hyland argues—as the excrescence of centuries of legislative tweaking. Continue reading "Deep Irony — The Law of the Gift"
Kenneth Ayotte & David A. Skeel, Jr., Bankruptcy or Bailouts?
, 35 J. Corp. L.
469 (2010), available at SSRN
As we try to learn the right lessons from the 2008 financial crisis, a debate has emerged as to the merits of bailouts versus bankruptcy. Although the chaotic days when Lehman and AIG were failing are starting to fade into financial history, ongoing news on European bailouts reminds us that this debate is still very much alive. Bankruptcy or Bailouts by Kenneth Ayotte and David Skeel, provides an excellent Law and Finance discussion that unpacks the key issues of moral hazard underlying rescues of financial institutions and the systemic risk considerations. They identify cases where bankruptcy has been surprisingly effective, discuss how it avoids various distortions resulting from bailouts, and challenges the common view that Chapter 11 bankruptcy is an inappropriate vehicle for resolving distress in financial institutions.
This article confronts head-on the difficulties in this area – the difficult choices for policymakers, and the difficulty in establishing causality between past events (e.g., the Lehman filing and the AIG bailout) and the volatility and illiquidity in the market. As Ayotte and Skeel remarked, questions such as whether a Lehman rescue loan could have reduced the severity of the financial crisis that followed are “impossible to answer with certainty.” (P. 490.) They then proceed to present some data, which provides us reason to be skeptical about the conventional wisdom that Lehman’s Chapter 11 filing was the singular cause of the resulting credit crunch. Continue reading "Bankruptcy 2.0 versus Bailouts"
David Fagundes, Property Rhetoric and the Public Domain, 94 Minn. L. Rev. 652 (2010).
Are patents and copyrights “property,” and does it matter? While the question is not new in the field, David Fagundes provides a fresh perspective, arguing persuasively that the question should be understood as rhetorical rather than ontological, and that, yes, it does matter. In Property Rhetoric and the Public Domain, Professor Fagundes aims to build upon the work of scholars working in a tradition he labels the “social discourse of property” to reorient the use of property rhetoric with respect to “intellectual property” away from a solely private rights understanding of property. By doing so, he argues, advocates for a positive conception of the public domain will be better equipped to blunt the force of property rhetoric deployed to expand the subject matter, scope or duration of copyrights and patents.
This article follows a prior piece, Crystals in the Public Domain, 50 B. C. L. Rev. 139 (2009), in which he argues that ex ante uncertainty about user rights in copyright is a significant problem that could best be addressed by clearer boundaries between private and public rights in copyright law. While that argument addresses the functional advantages of clearer public rights to use another’s copyrighted expression, this piece argues that there are significant rhetorical advantages to a more clearly defined public domain in copyright law. In his words, “[b]y framing their concern about the public domain as a concern about preserving public property (rather than simply resisting property), actors concerned about this issue can restore balance to this debate.” (P. 701.) Continue reading "The Public Domain Through Property’s Lens"
Writing for Festschriften is an art. A Festschrift author must pay tribute without being trite; advance our knowledge in an area without being presumptuous; and engage an audience beyond the scholar about whose work the Festschriften is focused. No small feat.
For a model of the genre, look no further than Richard Vann’s The History of Royalties in Tax Treaties 1921 – 61: Why?, which was published in a collection of essays in honour of John Tiley, one of the UK’s great tax scholars. Although the essays were published in 2008, I suspect that Vann’s chapter will only get its due now that he has posted the abstract on SSRN. (One of my longstanding frustrations with book publishers is their reluctance to permit authors to post chapters on line in full. This chapter is a case in point. It deserves a wider audience than it will receive.) Continue reading "Festschrift on a Festschriften: The Why of the Royalty Provision in Tax Treaties"