Monthly Archives: June 2011

Particularism, Telishment, and Three Strikes Laws

Jeffrey Brand-Ballard, Innocents Lost: Proportional Sentencing and the Paradox of Collateral Damage, 15 Legal Theory 67 (2009).

Although this article appears to be about the permissibility of aggressive anticrime measures, it really concerns particularism in ethical theory.

Three strikes laws, zero tolerance policies, and the like have been criticized for violating nonconsequentialist restrictions on punishment. According to this criticism, when the state sentences a former felon to 25 years in prison for stealing three golf clubs, see Ewing v. California, it acts improperly because it imposes a sentence more severe than the defendant deserves for the crimes he has committed. That such a restriction on punishment exists, it is claimed, can be shown by considering telishment (short for “teleological punishment”), in which the government intentionally punishes someone it knows to be innocent because crime will thereby be prevented. Although telishment would, ex hypothesi, have good consequences, it is nevertheless wrong. And so–-proceeding according to what Brand-Ballard calls a generalization argument–-punishment under three strikes laws must also be wrong, for it shares all morally relevant intrinsic features with telishment. Both, after all, impose a quantum of undeserved harm. Continue reading "Particularism, Telishment, and Three Strikes Laws"

Context Matters in Systemic Disparate Treatment Theory

Tristin Green, The Future of Systemic Disparate Treatment Law, 32 Berkeley J. of Employment & Labor Law __ (forthcoming 2011), available on SSRN.

On June 20, 2011, the Supreme Court issued a decision in what has been billed as the largest employment discrimination case in U.S. history: Wal-Mart v. Dukes. The case was a class action against Wal-Mart, the country’s largest private employer, for pay and promotion decisions that discriminated on the basis of sex, and the class consists of every woman who currently works for the company or who formerly did, going back to 1998. Estimates of the number of class members range from about 500,000 to 1.6 million. The numbers are what tended to make headlines, were to some extent the focus of Wal-Mart’s defense, and played a large role in the Court’s decision. But those numbers were driven in large part by the sheer size of the company. Some have suggested that Wal-Mart is arguing that it is “too big to sue,” the newest variation of “too big to fail.” To the extent that Wal-Mart’s size contributed to the Court’s conclusion that the causes of any injuries were too complex for those allegedly injured to constitute a class, the Court agreed.

What was at stake in the case was more than just the interests of the women or the interests of Wal-Mart. At stake was the future of class actions to redress harm from mass injuries and the future of systemic discrimination cases. That is why Tristin Green’s article, The Future of Systemic Disparate Treatment Law, 32 Berkeley Journal of Employment & Labor Law __ (forthcoming 2011), currently available on SSRN, is such a welcome addition to the discussion of the theory of systemic discrimination. Tristin, Noah Zatz, Richard Ford, Melissa Hart, and Michael Selmi will all contribute articles to a symposium issue on the subject, but Tristin’s was the first article to be made publicly available. Continue reading "Context Matters in Systemic Disparate Treatment Theory"

Legal Scholarship and Law Reform

Herbert Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Probs. 216 (1948).

Perhaps Herbert Wechsler needs no introduction, no expression of appreciation.  He did, after all, leave an indelible mark on three bodies of law:  criminal law, constitutional law, and the law of federal jurisdiction.  He served as the third director of the American Law Institute, shepherding an important collection of Restatements through the process of drafting and approval.  Also in his director’s role, he played a central role in the ALI Study of the Division of Jurisdiction Between State and Federal Courts (1969), which occupies a place on my federal courts bookshelf alongside the 1953 casebook Wechsler wrote with Henry Hart.

But despite his many contributions to legal scholarship, Wechsler’s reputation these days might appear to depend on two articles: 1959’s Toward Neutral Principles of Constitutional Law and 1953’s The Political Safeguards of Federalism. The first has suffered from its criticism of the Supreme Court’s decision in Brown v. Board of Education, which comes as close as one can these days to academic apostasy.  The second contributed an enduring idea to the canon of constitutional law, but one that may have fallen temporarily from grace with the rise of the judicially enforced federalism of the Rehnquist Court.

I want to focus instead on Wechsler’s 1948 article, Federal Jurisdiction and the Revision of the Judicial Code.  I find myself returning to the article for a number of reasons.  To begin with, the choices of the 1948 revisers and codifiers remain very much a part of our jurisdictional law over sixty years on, as do Wechsler’s criticisms of those choices.  In addition, the article has the remarkable Wechslerian ability to identify doctrinal and statutory rough patches and foresee new departures in jurisdictional law.  Indeed, a surprising number of Wechsler’s suggestions have been written into the law of federal jurisdiction, either by Congress or the Supreme Court, thus underscoring the power of scholarship as a tool of effective law reform.  Wechsler managed to accomplish all this in thirty pages, deploying a gift for concision we should all envy. Continue reading "Legal Scholarship and Law Reform"

Legal Scholarship and Law Reform

Herbert Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Probs. 216 (1948).

Perhaps Herbert Wechsler needs no introduction, no expression of appreciation.  He did, after all, leave an indelible mark on three bodies of law:  criminal law, constitutional law, and the law of federal jurisdiction.  He served as the third director of the American Law Institute, shepherding an important collection of Restatements through the process of drafting and approval.  Also in his director’s role, he played a central role in the ALI Study of the Division of Jurisdiction Between State and Federal Courts (1969), which occupies a place on my federal courts bookshelf alongside the 1953 casebook Wechsler wrote with Henry Hart.

But despite his many contributions to legal scholarship, Wechsler’s reputation these days might appear to depend on two articles: 1959’s Toward Neutral Principles of Constitutional Law and 1953’s The Political Safeguards of Federalism. The first has suffered from its criticism of the Supreme Court’s decision in Brown v. Board of Education, which comes as close as one can these days to academic apostasy.  The second contributed an enduring idea to the canon of constitutional law, but one that may have fallen temporarily from grace with the rise of the judicially enforced federalism of the Rehnquist Court.

I want to focus instead on Wechsler’s 1948 article, Federal Jurisdiction and the Revision of the Judicial Code.  I find myself returning to the article for a number of reasons.  To begin with, the choices of the 1948 revisers and codifiers remain very much a part of our jurisdictional law over sixty years on, as do Wechsler’s criticisms of those choices.  In addition, the article has the remarkable Wechslerian ability to identify doctrinal and statutory rough patches and foresee new departures in jurisdictional law.  Indeed, a surprising number of Wechsler’s suggestions have been written into the law of federal jurisdiction, either by Congress or the Supreme Court, thus underscoring the power of scholarship as a tool of effective law reform.  Wechsler managed to accomplish all this in thirty pages, deploying a gift for concision we should all envy. Continue reading "Legal Scholarship and Law Reform"

Federalism and Collective Action

Robert Cooter & Neil Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stanford L. Rev. 115 (2010).

Robert Cooter and Neil Siegel’s Collective Action Federalism is probably the most important academic article on constitutional federalism in several years. Cooter is one of the world’s leading law and economics scholars. Unfortunately, his work has not gotten the attention it deserves from constitutional theorists. Siegel is a leading constitutional law scholar in his own right.

In Collective Action Federalism, Cooter and Siegel argue that the congressional powers  enumerated in Article I, Section 8 of the Constitution should be interpreted in light of the goal of giving Congress the authority it needs to address collective action problems among the states. A collective action problem arises when members of a group want  a good, but have little or no incentive to contribute to its production, because they can instead try to free ride on  the efforts of others. This is likely to occur in cases where the good in question is a  “public good” for the group in question, one for which there is no way to prevent group members from consuming it even if they have not contributed to its provision. Continue reading "Federalism and Collective Action"

The Family as an Economic Unit

Thomas P. Gallanis, The Flexible Family in Three Dimensions, 28 Law & Ineq. 291 (2010), available on SSRN.

No small amount of ink has been spilled on the problems created by the clash between law’s dated vision of the traditional family and the social realities of the diverse and complicated modern family.  This piece, written for a University of Minnesota symposium, Family Values: Law and the Modern American Family, is a refreshingly concise essay that makes normative claims about how law should respond to most significant change in the family form: the dramatic rise in nonmarital cohabitation among not only heterosexual couples, but also couples of the same-sex and adults who share a care, but not a romantic, bond.  Gallanis answers the question “to what extent should there be room in our law for a family outside marriage” with three claims: (1) non-marital cohabitation merits recognition and support in law; (2) given American mobility, relationship statuses should be universally portable across state lines; and (3) the law should do more to protect family units–however constituted–against third parties, as opposed to worrying only about their obligations to one another.  It is this last point that gives rise to the third dimension alluded to in the title.

Gallanis begins by traversing some familiar ground on the treatment of non-marital cohabitants and same-sex couples. Although courts began in the 1970s to recognize contractual economic claims by one cohabitant against the other, those “Marvin rights” have turned out to provide very anemic protection to the weaker or more dependent party.  Slightly later, some states moved to create quasi-marital, status-based rights for cohabitants, a shift endorsed by the American Law Institute’s Principles of the Law of Family Dissolution.  And later still, same-sex couples got in on the action, earning status-based rights in various American and foreign jurisdictions, with great variation by jurisdiction in the particular status available and the rights and obligations accompanying it. Continue reading "The Family as an Economic Unit"

New Jotwell Section: Equality Law

Today we inaugurate a new Jotwell section on Equality Law, edited by Dean Kim Brooks of the Dalhousie University – Schulich School of Law and Professor Sonia Lawrence, Director, Institute for Feminist Legal Studies York University – Osgoode Hall Law School. Together they have recruited a stellar team of Contributing Editors.

The first posting in the Equality section is Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System by Dean Kim Brooks.

We intend to continue to add other new sections in the coming months. Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System

Anne Derrick, In the Matter of a Fatality Inquiry Regarding the Death of Howard Hyde, Report pursuant to the Fatality Investigations Act (2010).

Long overdue, in 2010 Canada ratified the United Nations Convention on the Rights of Persons with Disabilities.  (The United States has yet to ratify the Convention.)  While countries can ratify conventions at the international level, it is often the case that only in translation to our domestic, sometimes even local, contexts do we see the real effects of our commitments.

Judge Anne Derrick’s piece, a report on the death of Howard Hyde ordered by Nova Scotia’s Minister of Justice, pushes at the boundaries of what most of us would consider scholarship; yet, it is the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months.  It provides a marvellous illustration of the values reflected in the Convention played out against one very specific set of facts. Continue reading "Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System"