Yearly Archives: 2012
Apr 9, 2012 Kerri StoneJotwellWork Law
Scholars who opine on issues of workplace discrimination know that the lifeblood of their scholarship is the work of those who conduct studies that capture and document the phenomena about which they write. Those researchers who conduct such studies with an informed eye toward the law are thus invaluable to employment discrimination scholars, and it was with great interest that I read Gender Harassment: Broadening our Understanding of Sex-Based Harassment at Work by Emily A. Leskinen, Lilia M. Cortina, and Dana B. Kabat, 35 Law & Hum. Behav. 25 (2011). The study, in the authors’ own words, seeks to “challenge[] the common legal and organizational practice of privileging sexual advance forms of sex-based harassment, while neglecting gender harassment.”
Citing to eminent scholars who have contended that gender harassment should be subsumed within the broader category of cognizable sexual harassment, the authors explain that gender harassment has been defined as “a form of hostile environment harassment that appears to be motivated by hostility toward individuals who violate gender ideals rather than by desire for those who meet them.” Simply put, it is “hostility that is devoid of sexual interest.” Proffering some much needed empirical support for the notion that gender harassment is at least as deleterious, if not more so, than its actionable counterpart, the authors advance ideas that may not have entered cultural consciousness, but that need to be properly understood by legislators, judges, advocates, scholars, and all others who shape and affect the law of workplace discrimination. So, for example, the authors’ research enables them to posit that sexual harassment, in what they call “traditionally male domains,” mostly consists of gender harassment absent any sexual advances. This compelling finding necessitates a shift in the popular conception of what sex-based harassment in the workplace truly looks like. Moreover, the authors’ research enables them to posit that the negative personal and professional impact of gender harassment in the workplace on women is immense. Continue reading "Documenting What Really Goes on in the Workplace"
Apr 6, 2012 Christina BurnettJotwellLegal History
Rose Cuison Villazor,
The Other Loving
: Uncovering the Federal Government’s Racial Regulation of Marriage,
86 N.Y.U. L. Rev. 1361 (2011).
Legal historians: Find a window to read Rose Cuison Villazor’s “The Other Loving,” published in the NYU Law Review last fall. Although Villazor, Associate Professor of Law at Hofstra, does not identify primarily as a legal historian, she has written more than one historical work well worth a read. An earlier article examined alien land laws in the United States, telling the story of Oyama v. California (1948), which held unconstitutional a provision of California’s Alien Land Law that discriminated against owners of property bought by parents who were ineligible to become U.S. citizens. This more recent article, in turn, explores how immigration, citizenship, and military statutes and regulations in the period around World War II interacted to produce federal anti-miscegenation law, with both domestic and extraterritorial effects. Carefully researched and engagingly written, Villazor’s article seeks to challenge the conventional view that legal restrictions on marriage have traditionally been the sole domain of state, not federal, law—with implications for historical scholarship and for current political debates.
Villazor opens the piece with the story of Helene and John Bouiss, a half-Japanese, half-German woman and her white American husband, who in the spring of 1946 arrived in Seattle, Washington aboard a military ship, having been married at sea by the captain days earlier. Despite the passage of the so-called War Brides Act the year before, officials stopped Helene at the border on the ground that immigration law prohibited the entry of persons ineligible to become U.S. citizens. At the time, U.S. law put citizenship off-limits to persons identified as belonging to certain racial and ethnic groups, including Japanese. Helene, a Swedish citizen on the basis of a prior marriage, was a person of “mixed racial blood,” including that of a citizenship-ineligible group, in the eyes of the relevant immigration regulations; she was therefore covered by the prohibition. Her marriage to a U.S. citizen soldier honorably discharged from the military did not help; nor did the Ninth Circuit Court of Appeals, which upheld the exclusion. (The case never made it to the U.S. Supreme Court.) Continue reading "Love and War"
Apr 4, 2012 Dennis PattersonJotwellJurisprudence
Jan Smits, “A Radical View of Legal Pluralism” in Leone Niglia, ed,
Pluralism and European Private Law (Oxford, 2012), available on
SSRN.
Legal Pluralism is both a phenomenon and a response to that phenomenon. We live in a world with a plurality of legal orders. There are municipal legal systems and international law. These are the most familiar forms of law, the most comfortable types of legal orders. Then there are international or “supranational” legal orders like the European Union. Finally, there are private and transnational legal orders that traverse the boundaries both of “law” and the very notion of a “system” (think of Lex Mercatoria or Sports law).
Jan Smits has been writing about legal pluralism for some time. His work is always interesting. This chapter is both intelligent and provocative because Smits takes legal pluralism to a new place and gives it a dimension no one has yet considered. Continue reading "Pluralism Reimagined"
Apr 2, 2012 Laurel TerryJotwellLegal Profession
Australia is the home to some of the world’s most interesting and provocative legal profession developments. For example, Australian jurisdictions were among the first jurisdictions to permit nonlawyer ownership of law firms. Not long thereafter, the Australian regulatory scheme was amended to permit outside investment in law firms. As a result, Australia became the site of the world’s first publicly traded law firm. Australia has been on the forefront of other lawyer regulation developments such as the proactive use of ex ante systems of regulation.
As commentators and jurisdictions elsewhere discuss and debate the proper scope of lawyer regulation, many look to Australia’s experiences in the hopes that they will provide valuable information and lessons. Those actively following the Australian developments include the American Bar Association (ABA), the UK Legal Services Board, and the Solicitors Regulation Authority (SRA), which is the front-line regulator for solicitors in England and Wales. Continue reading "Regulation and Theory: What Does Reality Have to Do With It?"
Mar 30, 2012 Paul HorwitzConstitutional LawJotwell
Randall P. Bezanson,
Whither Freedom of the Press?,
Iowa L. Rev. (forthcoming), available at
SSRN.
Randy Bezanson’s recent short piece, Whither Freedom of the Press?, is an instructive example of how to get around an obstacle—two obstacles, really. The first is the Supreme Court’s opinion in Citizens United v. FEC, 130 S. Ct. 876 (2010). In the course of striking down a law prohibiting the direct use of corporate or union treasury funds for electioneering communications, the Court stated that “the institutional press has [no] constitutional privilege beyond that of other speakers.”
The second obstacle is actually more formidable. In a recent article in the University of Pennslyvania Law Review, Freedom of the Press as an Industry, or for the Press as a Technology?: From the Framing to Today, Eugene Volokh takes on the view of some writers, including Justice Stevens in his dissent in Citizens United, that the Press Clause of the First Amendment provides some form of protection to the press as an “industry” or institution. Volokh argues that the Press Clause protects the press only “as a technology”—that it secures only “the right of every person to use communications technology,” and grants no special privileges to the professional or institutional press as such. Skillfully marshaling extensive historical sources, Volokh concludes that the evidence “point[s] powerfully toward the press-as-technology reading” of the Press Clause, “under which all users of mass communications technologies have the same freedom of the press” and journalists qua journalists have no unique privileges. Continue reading "Defending Freedom of the Press as an Institutional Guarantee: A Guide in Dealing With Historical and Jurisprudential Obstacle Courses"
Mar 28, 2012 Solangel MaldonadoJotwellTrusts & Estates
I have never had a pet (yes, very sad), so I must admit that in my Estates & Trusts course, I covered the cases involving gifts to pets with some amusement. After reading Frances Foster’s provocative article, Should Pets Inherit?, I will never teach those cases in quite the same way again. Building on many scholars’ (including her own) critiques of U.S. inheritance law’s focus on relationships based on blood, adoption, or marriage to the exclusion on those based on caregiving and affection, Professor Foster expands the universe of beings who should inherit to include non-human family members—pets.
Professor Foster briefly summarizes the rich literature showing that U.S. inheritance law excludes many people Americans consider nearest and dearest to them, including nonmarital partners, friends, and individuals with whom they share a de facto parent-child relationship. As a result, inheritance law often conflicts with and defeats decedents’ wishes to provide for individuals with whom they shared affectionate and supportive relationships. She points out that the law’s exaltation of family status over affection and support is so entrenched that attempts to give property to persons the law does not consider “family” are deemed “unnatural.” In my opinion, many would find few bequests more “unnatural” than dispositions to a pet, which the law deems to be property and as such, cannot inherit under the common law. As Professor Foster points out, bequests to a pet may be used as evidence of testamentary incapacity. After all, who in their right mind would leave property to a pet? However, Professor Foster persuasively demonstrates that given the vast majority of pet owners’ inclusion of their pets in their definition of family and their desire to provide for their pets after they pass, the law should allow and facilitate inheritance by pets. Continue reading "Protecting the True Objects of Decedent’s Bounty—Pets Included"
Mar 26, 2012 Brooke D. ColemanCourts LawJotwell
David Marcus,
When Rules are Rules: The Federal Rules of Civil Procedure and Institutions in Legal Interpretation,
__ Utah L. Rev. __ (forthcoming), available on
SSRN.
The debate over how best to interpret legal text is not limited to the Constitution and controversial statutes, although the expansive literature about interpretation in those contexts might lead one to think that is the case. There are plenty of other legal texts to argue about, and David Marcus’s article, When Rules are Rules: The Federal Rules of Civil Procedure and Institutions in Legal Interpretation, focuses on none other than the Federal Rules of Civil Procedure. Shocking as it may seem (maybe because we are all kicking ourselves that we did not notice this first), there is not much written about how judges should interpret the Rules. Moreover, recent Supreme Court decisions, namely Bell Atlantic v. Twombly and Ashcroft v. Iqbal, demonstrate that reasonable people can disagree about how best to interpret even the most basic and simply-stated Rules. What’s missing is a unified theory of how judges should interpret the Federal Rules, and Marcus’s article is here to save the day.
Marcus puts forward a theory of rule interpretation that respects the unique nature of how the Federal Rules of Civil Procedure came to be and how they continue to evolve. The old adage of a parent loving each of her children equally—and appreciating their differences—applies here. The rules are one of many “textual” children, and they cannot be interpreted as an agency regulation or a constitutional provision might be. Continue reading "Interpreting the Federal Rules of Civil Procedure"
Mar 23, 2012 Henry ChambersJotwellWork Law
In Wal-Mart Matters, 46 Wake Forest L. Rev. 95 (2011), Lesley Wexler challenges the law and economic orthodoxy that suggests that inefficient employment discrimination tends to be driven out of the marketplace. The typical rationale is that employers who discriminate will have higher costs of production based on their inefficient discrimination and will necessarily be less competitive than their competitors. Professor Wexler describes how systematic sexual discrimination can exist indefinitely even when an employer’s successful business model focuses almost exclusively on efficiency and providing the lowest cost goods in the marketpalce. Wal-Mart Matters is an article that I like lots because it discusses employment discrimination and law and economics in challenging a point of orthodoxy and explaining why the orthodoxy may not be convincing or correct in a particular situation. To be clear, the article is not an exhaustive treatment of the issues and does not appear intended to be. However, it makes the reader think about how a theoretical point regarding markets may not work as well as expected in a real-world market. The subject matter is of particular interest to me because I teach employment discrimination and have taught law and economics. However, the article ought to be of interest to a wide variety of law professors and legal commentators.
The article is timely, but its title is a little unfortunate. Given the article’s timing, its title may suggest to some that it is about the Wal-Mart litigation that was decided by the Supreme Court this past year. Though Wal-Mart and its practices are at the core of this article, the litigation is only a point of departure. Rather than analyze the substance of the class action against Wal-Mart, Professor Wexler asks that the reader assume that the allegations of sex discrimination in pay and promotion that are at the core of the litigation are supported or supportable. Professor Wexler then examines how a widespread practice of seemingly irrational sex discrimination could exist at Wal-Mart given law and economics principles that claim that irrational discrimination will be driven out of the marketplace and given that Wal-Mart appears to follow a practice that focuses on efficiency as a business model. Continue reading "A Drive for Efficiency May Not Drive Inefficient Discrimination From the Marketplace"
Mar 21, 2012 Mark SeidenfeldAdministrative LawJotwell
Francesca Bignami, From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law, 59 Am. J. Comp. L. 859 (2011).
Administrative law scholars in the United States who seek to borrow ideas from approaches tried by other liberal democracies face a substantial problem: each country’s government is structured differently. There is no recognized metric for evaluating how administrative law will play out in a state with a different structure of government. The lack of such a metric is especially troubling as governments seek to take advantage of flexible regulatory approaches that harness the knowledge and incentives of stakeholders in the regulatory process. A fascinating article, “From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law,” by Professor Francesca Bignami, provides a first stab at providing such a metric.
Professor Bignami criticizes the traditional characterization of administrative law, as “organization of public administration” and “judicial review of administrative action,” for its inability to “engage with contemporary debates on the desirability and future possibilities of administrative law.” To surmount this inability, Bignami begins to “develop . . . a comparative framework by recasting administrative law as an accountability network of rules and procedures through which civil servants are embedded in their liberal democratic societies.”Bignami breaks down the concepts of accountability network into four sets of relations: those between civil servants and elected officials, organized interests, the courts and the general public, respectively. The accountability network description is “well equipped to capture such phenomena in administrative governance as: the political objectives of the bureaucracy; the role of organized interests in providing new mechanisms of regulatory control, and the ability of the public to hold the bureaucracy accountable. Continue reading "In Praise of a Comparativist Rubric for Administrative Law"
Mar 19, 2012 Andrew TaslitzCriminal LawJotwell
Stephanos Bibas, The Machinery of Criminal Justice (Oxford Univ. Press, 2012).
Ordinarily I would use space in Jotwell to bring attention to up-and-coming scholars. The author whose work I praise here, however – Stephanos Bibas – arrived long ago. But Bibas’s new book, The Machinery of Criminal Justice, is so humane and thoughtful an analysis of the reforms needed in our criminal justice system that I find myself drawn to giving him still more good press. I do not agree with every jot-and-tittle of his analysis nor every recommendation for reform that he makes. But his vision is a powerful one, he defends it with clarity and grace, and every idea he expresses is capable of starting an important conversation. Bibas’s argument turns on three central ideas: (1) the system pretends to a mechanistic efficiency deaf to the emotions and meaningful expressions that undergird any sound system of criminal justice; (2) lawyers and other experts have hijacked the system to serve their own needs, displacing defendants, victims, and even judges; and (3) the political forces at work are skewed toward undue penal harshness and elite control rather than adequately balanced by informed lay participation.
Emotions
Bibas argues that our system undervalues positive emotions and distorts negative ones. The positive emotions that are undervalued are remorse, apology, and forgiveness. The negative ones that are distorted are the retributive emotions. Continue reading "Tinkering with the Machinery of Justice"
