Monthly Archives: June 2011

Rape Prosecutions and the Civil Rights Movement

In her groundbreaking book, Danielle McGuire chronicles an untold story of how criminal investigations and prosecutions in rape cases helped to ignite and shape the civil rights movement.  Contrary to the now familiar stories of cases like the Scottsboro boys or Emmet Till—cases in which the law failed to protect the lives of black men in courts and in their communities, McGuire writes about the prosecution of rape and sexual assault committed against black women.  As a historian, McGuire focuses on two important aspects of these criminal cases.  First, the cases served as bellwethers for the social and political rights of black women.  Second, they involved some of the earliest attempts to organize and mobilize churches and political groups in the fight for civil rights.

These cases are valuable to criminal law scholars as well.  They expose the deep connection between civil and human rights for women, on the one hand, and for the criminal law’s capacity to protect their bodily integrity, on the other. In other words, one important test of freedom for women everywhere—and in this case for black women—is the ability to walk “at the dark of end of the street” under protection of law.  The notion that civil rights for women were connected to the criminal law’s protection of women’s bodies was understood early by black women activists.  McGuire makes the point that the struggle to bring rape and sexual assault cases to justice has been an important, if underexplored, aspect of the civil rights movement. Continue reading "Rape Prosecutions and the Civil Rights Movement"

Should We Tax the Rich, or Leave Them Alone?

Linda McQuaig and Neil Brooks, The Trouble With Billionaires, (Viking Canada 2010).

Some books are years ahead of their time, while others are stale before they are printed.  The Trouble with Billionaires, which was published last September, was almost perfectly timed, hitting the bookshelves just as we became aware of the increasing influence of a handful of billionaires on the political system in the United States.  Although the authors are Canadian (McQuaig a journalist, and Brooks one of the top tax academics in the world), they perfectly captured the current political moment in the U.S.  The super-wealthy now truly run the show, and they are less shy than ever about doing so.

Given the time delays in publishing, the substantive work on this book was completed months before it had become clear that the Koch brothers, the billionaire brothers who made their fortune with bare-knuckled tactics in the coal industry, had engaged in a full-on effort – successful, as it turned out – to buy the U.S. mid-term elections.  Indeed, even though the book is based on careful research about political influence by billionaires, the Kochs’ names do not even appear in the book’s index.  The book’s title, in retrospect, could have been: The Trouble With Billionaires is That Too Many of Them Act Like the Koch Brothers. Continue reading "Should We Tax the Rich, or Leave Them Alone?"

The Dilemma of Nonlegislative Rules

So-called nonlegislative rules, rules adopted as interpretative rules or statements of policy without notice and comment, have posed problems for courts and scholars for a number of years. In addition to myself,1 in recent years professors Robert Anthony,2 Peter Strauss,3 Elizabeth Magill,4 Nina Mendelson,5 Donald Elliott,6 Jacob Gersen,7 Ronald Levin,8 and John Manning9 have all attempted to bring coherence to the questions raised by nonlegislative rules.

Everyone agrees that agencies must be able to issue certain interpretations and policy statements, generically guidances, without having to follow the notice-and-comment process applicable to legislative rules. On the other hand, everyone also agrees that agencies can abuse the ability to avoid notice and comment rulemaking through invocation of the exceptions for “interpretative rules” and “general statements of policy.”  How to police the line between those rules requiring notice and comment and those that do not is what has stymied courts and commentators. Now there are two more attempts in this regard, and while both are worthwhile additions to the field, Professor Seidenfeld seems to this author to come closest to hitting the mark. Continue reading "The Dilemma of Nonlegislative Rules"

A Newly Published Classic on the Ethics and Sociology of Corporate Lawyers’ Work

Robert E. Rosen, Lawyers in Corporate Decision-Making (Quid Pro Books 2010).

Here is one way of describing the ethical challenge facing contemporary lawyers:

Traditionally, professions transcended the seller-customer relation because they met the challenge of moral difficulties, including evil, and emerged not only unscathed but triumphant. Today, legal professionals, fearing they cannot resist, let alone control, the moral pollution around them, retreat into technical virtuosity and specialized expertise. Cleanliness has become the aspiration of the profession. Lawyers seek purity by defining their cases and their work solely in terms of the abstract norms of professional knowledge. At the same time, they argue that to do anything else is dangerous and potentially immoral. To be anything other than a supplier of technical information is to dominate clients. At its best, it is paternalistic. At worst, it is power mongering. The claim is that there is no ethical way for the lawyer to meet moral difficulties. (PP. 158-9.)

It is as apposite a criticism of corporate lawyers-and their abdication from ethical commitment-today as it was in 1984 when it was first written. The paragraph is found near the end of Professor Rob Rosen’s book on lawyers in corporate decision-making that has recently appeared as part of an initiative to publish “influential” unpublished doctoral theses-in this case from UC Berkeley’s sociology department. What an excellent choice for such a series! Although Rosen has drawn on and published parts of the thesis in journal articles, it is a real treat to have the whole thesis now readily available, and with a Foreword by Professor Sung Hui Kim. Continue reading "A Newly Published Classic on the Ethics and Sociology of Corporate Lawyers’ Work"