Monthly Archives: June 2012

Dis-torting Discrimination Law

Sandra F. Sperino, Discrimination Statutes, The Common Law, and Proximate Cause, 2013 U. Illinois L. Rev. 1 (forthcoming 2013) available at SSRN.

As courts increasingly import principles from common law torts into discrimination cases, Sandra Sperino’s new article, Discrimination Statutes, The Common Law, and Proximate Cause, is a welcome addition to a growing body of work pushing back against this trend. Her focus is on the Supreme Court’s recent forays into proximate cause in connection with federal employment statutes. Laying out the problems of the proximate cause doctrine and the features of statutory protections from employment discrimination, Sperino demonstrates that importing proximate cause is undesirable and an obstacle to enforcing Congress’ careful balance in enacting these statutes.

The article begins by describing what proximate cause is. Although the theoretical underpinnings of proximate cause are notoriously muddled, Sperino demonstrates that in a variety of ways, the doctrine appears to limit the reach of particular torts, depending on the type of tort at issue. As she notes, proximate cause is applied primarily in negligence actions in situations with multiple physical causes, where a potential plaintiff is far removed from the conduct of the defendant, or as a way to define the policy goals of the underlying cause of action. For intentional torts, proximate cause plays a much more limited role, in part because the actor’s state of mind makes the actor more blameworthy, and we are willing to extend liability farther. Continue reading "Dis-torting Discrimination Law"

New Section Editors

I’m pleased to announce that three distinguished scholars have agreed to become Jotwell Section Editors.

  • Paul Horwitz of the University of Alabama School of Law has stepped up from Contributing Editor to Section Editor in the Constitutional Law section.
  • Eli Wald of the University of Denver, Sturm College of Law, has joined the Legal Profession section as a Section Editor, replacing Tanina Rostain, who continues as a Contributing Editor.
  • Leigh Osofsky of the University of Miami School of Law has joined the Tax section, replacing George Mundstock.

Serial Litigation in Administrative Law: What Can Repeat Cases Tell Us About Judicial Review?

Emily Hammond Meazell, Deference and Dialogue in Administrative Law, 111 Colum. L. Rev. 1722 (2011).

In Deference and Dialogue in Administrative Law, Emily Meazell takes up the topic of serial administrative law litigation.  These repeated rounds of challenges and remands, which Meazell finds are particularly prevalent in contexts of risk regulation, provide a new lens on court-agency relationships.  Meazell closely reviews several instances of such litigation, spanning topics as diverse as endangered species, potential workplace carcinogens, and financial qualifications of nuclear plant operators.  She argues that such close examination reveals a process of dialogue, with agencies ultimately (if not immediately) responding to judicial concerns and courts in turn acknowledging administrative responses.

According to Meazell, serial litigation merits attention because it demonstrates that judicial review may not function as we think it does.  In particular, Meazell flags two features of serial litigation that deserve particular note.  The first is that agencies frequently considered new information and evidence on remand, even though that might entail greater effort and new rounds of notice and comment.  She argues that serial litigation thus can provide an opportunity for agencies to refine their analyses and gain greater expertise over time.   The second is that, despite their initial sometimes stern rejections of agency determinations, courts often ultimately took quite a deferential stance. From this Meazell concludes that, when viewed over the long lifetime of some of this litigation, hard look review resembles more the soft look of constitutional rationality review than the more searching scrutiny administrative law cases and scholarship claim it to be. Continue reading "Serial Litigation in Administrative Law: What Can Repeat Cases Tell Us About Judicial Review?"

Judging Guilt by the Content of their Character

Janice Nadler & Mary-Hunter McDonnell, Moral Character, Motive, and the Psychology of Blame, 97 Cornell L. Rev. 255 (2012).

The law, Stanley Fish has written, “wishes to have a formal existence.” 1. By formal, Fish meant self-contained, autonomous, and self-declaring. In other words, the law wants to deny license to the interpreters of the law to seek recourse outside the law, to the tenets of philosophy and psychology, and to the facts of social scientific research. Of course, the law does not, because it cannot, succeed in preventing lawyers, or those from other disciplines, from rendering judgments about psychological processes or behavior. Tort law relies on economics and economics relies either on moral philosophy or psychology to ground its understanding of human behavior. The same is true for criminal law, and it is especially true in insanity cases. What the law wants – if it is acceptable to speak of the law without subjects but with intent – is to control the production of legal meaning.

Janice Nadler and Mary Hunter-McDonnell have written a provocative and insightful essay that explores the limits of the law’s formalism by focusing on how non-lawyers actually perceive guilt and assign blame. They are less interested in saying that certain people, contrary to the law’s instructions in criminal trials, combine assessments of guilt with perceptions of bad character. Rather, they say that to be in a position of judgment over another requires that one’s mental processes leap over the law’s formalism and merge guilt with character assessment. Indeed, they go further and suggest that any character information that jurors have which they perceive to be negative influences the corresponding interpretation of the action under review. If these studies can be replicated over time (and Nadler and McDonnell cite other literature to this effect), then policymakers need to address the implications of this study. Continue reading "Judging Guilt by the Content of their Character"

Federalism and Child Labor Revisited

Logan Everett Sawyer III, Creating Hammer v. Dagenhart, Wm. & Mary Bill Rts. J. (forthcoming) available at SSRN.

The Supreme Court’s decision in Hammer v. Dagenhart, 247 U.S. 251 (1918) is one of the most reviled judicial rulings in American history. The ruling struck down a federal law banning the interstate transportation of goods produced in factories employing child labor, holding that it exceeded Congress’ authority under the Commerce Clause. Right from the start, critics denounced Hammer as an unprincipled decision with awful real-world consequences, an attempt to legislate “laissez-faire” ideology form the bench. To this day, the case is often invoked to discredit efforts to enforce limits on the commerce power. Several critics have recently used analogies to Hammer to attack the case challenging the individual health insurance purchase mandate.

Logan Sawyer’s excellent article, Creating Hammer v. Dagenhart, is an important challenge to the conventional wisdom about Hammer. Sawyer questions the long-dominant view that the ruling lacked a basis in precedent, and demonstrates convincingly that it was not the product of “laissez-faire” thinking. Continue reading "Federalism and Child Labor Revisited"

The Same Old Song?

Last semester, I taught Comparative Intellectual Property Law in London, and I enjoyed the opportunity to think about different ways of structuring IP regimes. One of the more interesting differences is the use of jury trials in U.S.intellectual property litigation. Other countries are much less likely to have juries pass on such questions as the obviousness of an invention, the confusion created by different trademarks, or the similarity of two copyrighted works.

Whether juries are capable of making these determinations is ultimately an empirical question, and it is one that Jamie Lund from St. Mary’s University School of Law has sought to answer. Her recently posted paper on the “lay listener” test in music composition copyright cases suggests that our trust in juries may be poorly placed. I like her article, An Empirical Examination of the Lay Listener Test in Music Composition Copyright Infringement, lots. Continue reading "The Same Old Song?"

Equality vs. Fairness

Nina W. Chernoff, Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, Hastings L.J. (forthcoming 2012), available on SSRN.

Americans know that there is something wrong with a guilty verdict rendered by “an all-white jury.”  But translating that something into a constitutional issue, never mind a constitutional right, is not straightforward. Indeed, it has become downright complicated and, as Nina Chernoff argues, totally wrong.

Often, the first impulse when faced with the “all white jury” problem is to conceptualize the problem as one of equality.  It seems discriminatory–unequal–when the person on trial is a member of a racial minority and is not “represented” on the jury.  And indeed, this may violate the Equal Protection Clause of the Fourteenth Amendment.  But not necessarily.  The Equal Protection Clause, as presently construed in American constitutional doctrine, generally requires discriminatory intent.  On the other hand, persons accused of crimes are afforded rights in the Bill of Rights that are not grounded in equality, but in fairness. The Framers of the Constitution, most of whom had committed the crime of treason during the Revolutionary War, were quite invested in fairness of process. For example, the Sixth Amendment guaranteeing an accused person assistance of counsel, confrontation of the witnesses against one, and a speedy and public trial.  The Sixth Amendment also guarantees an “impartial jury.”  In common parlance, this is a “jury one one’s peers.”  In constitutional doctrine, it requires that the jury members be “drawn from a fair cross-section of the community.” Continue reading "Equality vs. Fairness"

A Radical Perspective on the Mundane

Annelise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (University of Chicago Press, 2011).

What if it turned out that much of the crucial work that law does in the world operates in a register that is not captured by most legal scholarship? What makes legal reasoning and legal technique so resilient and so abidingly “legitimate,” even while other forms of expert knowledge, like those underpinning government fiscal policy, quantitative risk modeling, and the rational actor model unravel (as they did in the midst of the recent financial crisis)? How much of the work of building and maintaining global governance is accomplished under the radar, by the routinized practices of law – and to what extent can grand political ambition leverage these underappreciated tools in the service of its own ends? These are the challenging questions that Annelise Riles poses in this rich and elegantly-written book. For those not familiar with her argument, it merits serious attention.

The focus of Riles’s book is contracts for collateral. Riles spent years conducting field work and follow-up studies in the Japanese derivatives markets, tracking daily back office routines underlying collateral contracts. Riles argues that the legal construction of collateral is interesting for two reasons. The first is the curious fact that at the height of the recent financial crisis, when the great conceptual edifices of international finance shook, collateral – the very notion of it, its enforceability and its legitimacy – was never seriously questioned. In her words, “collateral seems to have survived the tectonic shifts in market ideologies of the last few years with its reputation intact when so much else of what once was unquestionable dogma – free markets, self-regulation, the innate brilliance and rationality of derivatives traders – now seems like a quaint mythology from a strange other world” (page 1). The book is partly devoted to trying to understand just what it is about collateral contracts that makes them so robust. She suggests, provocatively, that the wonder is not that the financial system broke down in fall 2008; the wonder is that it ever operated at all, across time zones, across differing institutional processes and national contexts, across technical glitches, and across the logistical complexities of global markets. The book is full of surprising and counterintuitive examples of the important role that legal technique plays in that system. Continue reading "A Radical Perspective on the Mundane"

For Love or Money? Legal Treatment of Golddiggers

Ruth Sarah Lee, A Legal Analysis of Romantic Gifts, Harvard John M. Olin Fellow’s Discussion Paper No. 43 (2012).

Under what circumstances should courts permit a donor to undo what appears to be a completed gift – particularly when the gift is embedded in a real or imagined romantic relationship?  After surveying existing law, Ruth Sarah Lee concludes that traditional doctrine does not adequately deter donees from subtly misleading donors into making generous gifts that the donor would never make if the donee had been honest about his or her intentions.  Although the article’s focus is on a subspecies of lifetime gifts, its conclusions suggest possible application to testamentary gifts, and to how courts might approach doctrines of undue influence and tortious interference.

Although the conventional wisdom is that gifts are gestures of altruism, love, or kindness, that conventional wisdom does little to explain why a donor makes particular gifts.  Much recent scholarship recognizes that gift-giving helps build relationships, in part by enhancing trust between donor and donee.  Gifts, particularly gifts that require the donor to learn about the donee’s individual preferences, or gifts that are particularly expensive, perform an important signaling function:  they indicate to the donee that the donor has an interest in a long-term relationship.  As Ms. Lee points out, “[i]f the donor expected only a short-term relationship with the donee, he would not expect enough in return, in terms of affection or trust, for the gift to be worth its cost.”   If gifts were freely revocable, they would lose that signaling advantage, because the donor would not be making the same sort of commitment to a relationship with the donee.  Nevertheless, as Ms. Lee indicates, engagement gifts are routinely treated as revocable at the donor’s behest if the marriage does not occur.  Courts invoke either the theory that the gift was conditioned on occurrence of the marriage, or that the theory that the gift was given only as consideration for the marriage. Continue reading "For Love or Money? Legal Treatment of Golddiggers"

Summer Publishing Schedule — and New Sections Coming Soon

Jotwell moves to its summer publishing schedule this week. Reviews will post on Mondays and Thursdays during June, July, and August (with a short annual summer break at the end of August).

We’ll return to a more frequent publication schedule when the new academic year begins in September.

In the next few months we’ll also be adding three new sections: Family Law, Health Law, and Torts, with still more to follow in the future.

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