Monthly Archives: October 2013

Breaking The Silence: Prison, Child Welfare And The Systemic Oppression Of Black Women

Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. Rev. 1474 (2012).

Dorothy Roberts has previously written about the impact of widespread incarceration on black families, including the damage to social networks, the distortion of social norms, and the destruction of social citizenship. She has also written extensively about the child welfare system’s injuries to African-American families. In her latest article, Prison, Foster Care and the Systemic Punishment of Black Mothers, Roberts weaves together these two systems and analyzes how they intersect and converge, not only in the lives of African-American families, but particularly in the lives of poor black mothers. Roberts extends her analysis to show how the two systems naturalize social inequality and blame black women for the same inequality that the systems create. In doing so, Roberts exposes a pernicious cycle in which stereotypes about black female criminality and irresponsibility legitimate government intervention. The destructive effects of government intervention, in turn, reinforce those stereotypes.

As Roberts explains, other scholars (including Roberts herself) have exposed prisons and the child welfare system as instruments for social management and racial oppression, particular in African-American communities. Sociologist Loic Waquant, for example, includes mass incarceration within the long line of “peculiar institutions” that have subordinated African Americans, including slavery, Jim Crow, and urban ghettos.1 And legal scholar Michelle Alexander has argued that the mass incarceration of African-Americans functions like a modern day Jim Crow caste system by permanently excluding a large percentage of the African-American community from mainstream social and economic realms.2 While recognizing the importance of this scholarship, Roberts explains that it overlooks incarcerated women. This oversight is unfortunate, as the population of black women incarcerated for drug offenses exploded by 828% from 1986 to 1991. Continue reading "Breaking The Silence: Prison, Child Welfare And The Systemic Oppression Of Black Women"

Help in Deconstructing the Zimmerman Acquittal: The Suspicion Heuristic

L. Song Richardson & Phillip Atiba Goff, Self-Defense and the Suspicion Heuristic, 98 Iowa L.R. 293 (2012).

I like the article Self-Defense and the Suspicion Heuristic; consistent with Jotwell’s tagline, I like it lots. The timing of this short review is apt. The Zimmerman verdict was recently rendered. It is still fresh in our minds, protests are taking place across the United States, President Obama has delivered a landmark speech on race in America, reflecting that, “Trayvon Martin could have been me . . . .” Self-Defense and the Suspicion Heuristic is an important work that lends insight into thought processes that could have led both to the killing of Travyon Martin and the verdict of acquittal.

This Iowa Law Review article, authored by a law professor (Richardson) and social psychologist (Goff), explores the subtle “mental processes [that] can conspire to produce racially discriminatory behaviors.” (P. 295.) In attempting to disabuse the reader of the assumption that Mr. Zimmerman must have been a bigot or a racist, meaning a conscious discriminator, Richardson and Goff elucidate predictable and pervasive unconscious racialized psychological processes that “warp the perceptions of even the most egalitarian of individuals.” (P. 295.) They call for “a new legal and theoretical framework that can account for these biases—one that does not rely upon the fiction of the objective decision-maker or the scapegoat of the consciously biased actor.” (P. 295.) Tapping the mind sciences to illuminate unconscious psychological processing that “can lead to systematic errors in judgment about criminality,” the authors introduce “the suspicion heuristic.” They employ this heuristic, which is defined as a “mental shortcut that often leads to systemic errors in determining who is and is not suspicious” (P. 297) to interrogate reasonableness determinations in self-defense doctrine. Continue reading "Help in Deconstructing the Zimmerman Acquittal: The Suspicion Heuristic"

The Limits of Even the Most Powerful Theories, or Why Tax Really Is Different

Alex Raskolnivok, Accepting the Limits of Tax Law and Economics, 99 Cornell L. Rev. 523 (2013).

What are the criteria according to which tax base design should proceed? In Accepting the Limits of Tax Law and Economics, Alex Raskolnikov cogently reminds us not to rely too heavily on the approaches associated with tax law and economics, even if we find the approaches of law and economics in other contexts appealing.

Until early in the last century, there was little room for theory, economic or otherwise, in tax base design. The blunt practicalities of tax collection left little room for taxes that were not focused on highly visible and measurable activities. The development of economic theory, and its application to legal rules in the framework of “law and economics,” has shifted the focus from what can be collected to what should be collected (and from what can fairly be collected given the constraints of politics) to what can efficiently be collected, meaning in general with as little adverse effects on market activities as possible. In Accepting the Limits of Tax Law and Economics, Alex Raskolnikov outlines the reasons tax designers cannot rely solely—and probably not even primarily—on the methods of law and economics. Continue reading "The Limits of Even the Most Powerful Theories, or Why Tax Really Is Different"

Lessons Learned from International Prosecutions of Sex Crimes

Sex Violence as an International Crime: Interdisciplinary Approaches (Anne Marie de Brouwer, Charlotte Ku, Renée Römkens & Larissa van den Herik eds., 2013).

It has been nearly twenty years since crimes of sexual violence were prosecuted in international tribunals explicitly as crimes against humanity. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set the stage for how such crimes were to be understood as a matter of substantive criminal law and how they were to be prosecuted as a matter of procedural criminal law. These tribunals also left many unanswered questions to be determined by future courts in future cases. A recent book, Sexual Violence as an International Crime: Interdisciplinary Approaches, is a compilation of articles and essays by scholars, lawyers, professionals and others who have had a front-row view of these prosecutions. Its editors—Anne Marie de Brouwer, Charlotte Ku (who in the interest of full disclosure, is a colleague of mine), Renée Römkens and Larissa van den Herik—have undertaken the task of assembling a volume in the wake of “two decades of experience prosecuting crimes of sexual violence” in order to “assess the work that has been done with a view to understanding the next steps that need to need to be taken.” (P.8.) The volume’s contributors acknowledge some of the key milestones reached in the prosecution of sexual and gender-based violence, expose important failures, and forecast future challenges. (P. 8.)

The lessons learned from these early cases and subsequent cases address elemental definitions of crimes including the contextualization of consent in sexual assault against a backdrop of structural disempowerment or the inclusion of men and boys as victims of sexual violence; the use of conspiracy theories to prosecute not only the direct perpetrators of sexual violence, but also those further removed within the operational structure. They offer an assessment of practices developed in the investigation, reporting and analysis of data including the value of social scientific methods in meeting evidentiary burdens of fact and in understanding the impact of the harm on communities and individuals. The authors also explore the increasing sensitivities to victim-related concerns including evidentiary rules excluding evidence of past sexual conduct; privacy issues raised in the collection and documentation of medical and personal data; efforts to prevent the re-victimization of the victims by the criminal justice process itself. Continue reading "Lessons Learned from International Prosecutions of Sex Crimes"

James Wilson, the Committee of Detail, and the Federal Judiciary

William Ewald, The Committee of Detail, 28 Const. Comment. 197 (2012).

We know far too little about James Wilson, the Scottish-born and -educated lawyer who played a central role in framing the Constitution as a delegate from Pennsylvania and later served as Associate Justice of the Supreme Court.  Wilson was hounded to an early grave in 1798, after financial reversals landed him in debtor’s prison.  That ignominious end seems to have cast a long shadow, obscuring his earlier career as lawyer, judge, and statesman.  Happily, however, William Ewald has embarked on an intellectual biography of Wilson that will doubtless do much to restore the reputation of this most nationalist of founding fathers.

One interesting chapter of that biography has just appeared in article form.  It focuses, as the title suggests, on the work of the Pennsylvania Convention’s Committee of Detail.  Wilson was one of five members of that Committee, named in July 1787 to prepare a draft Constitution that reflected the Convention’s deliberations to that point.  Much of what we know about the Committee’s work comes from the text of Wilson’s own drafts of the Constitution.  We can watch provisions evolve and take shape as the product of a deliberative process of which we have no other record. Continue reading "James Wilson, the Committee of Detail, and the Federal Judiciary"

Cyber Finance Considered

Tom C.W. Lin, The New Investor, 60 UCLA L. Rev. 768 (2013).

Tom C.W. Lin’s The New Investor is well worth a read.  It’s about algorithmic trading, high-frequency-trading, flash crashes, and cyber attacks, and how they happen to be, could be, should be, and shouldn’t be changing our thinking about investment and securities regulation.  I picked the paper up from the top of the stack of papers in my office due to feelings of insecurity.  Yes, I had read the financial press with more than usual attention in the wake of the flash crash and had done some homework on dark pools, but I still had the sense I was missing something that others had managed to assimilate.  So I eagerly accepted this paper’s offer of a knowledgeable overview.

I am pleased to report that I was better informed than I had feared.  At the same time, the paper taught me all sorts of stuff  I was glad to learn.  The lesson was a pleasure.  The writing is excellent, the scope broad, the organization intelligent, and the tone measured.  But what about the policy bottom line?  A full and appropriate range of warnings emerges from the paper’s report of technical shortcomings.  There’s also a succinct review of structural regulatory shortcomings.  At the same time,  Professor Lin likes this stuff more than he fears it.  The “new investor” is a function of artificial intelligence, which in turn follows from mathematical inputs. The paper compares the new investor categorically to the rational actor investor of orthodox financial economics and the behaviorally challenged investor of recent academic fashion, and the new investor emerges from the comparison looking pretty good. Continue reading "Cyber Finance Considered"

SCOTUS Masks

Cass R. Sunstein, Constitutional Personae (preliminary draft July 25, 2013), available at SSRN.

Several years ago, I attended an AALS program featuring Cass Sunstein as a panelist. He spoke last, about an hour into the session. The moderator introduced him to knowing laughter by announcing, “Our last presenter is Cass Sunstein, who has just written another book . . . while he has been waiting to speak this morning.” Sunstein is an original, provocative thinker and a remarkably prolific writer: the kind of scholar who shuttles from the University of Chicago to Harvard University, the kind of public intellectual who takes time off to run OIRA (Office of Information and Regulatory Affairs) in the Obama Administration.

Sunstein writes—a lot!—about administrative law and constitutional law. In my own field, constitutional law, Sunstein always delivers intriguing insights. He does it again in this draft article. Conceptual articles like this one remind me of the economic models I studied in college: they are abstracted from reality but help us to better understand it. The SSRN version I read is clearly a draft and still has some way to go. (I wonder if any of his other fans occasionally get the feeling that Sunstein sometimes lets go of his pieces too soon.) Continue reading "SCOTUS Masks"

Remedying Structural Separation-of-Powers Violations

Kent H. Barnett, To the Victor Goes the Toil—Remedies for Regulated Parties in Separation-of-Powers Litigation, 92 N.C.L. Rev. (forthcoming, 2014), available at SSRN.

This coming Term, the U.S. Supreme Court is set to decide National Labor Relations Board v. Noel Canning, a case involving the constitutionality of the President using his recess appointment power to fill various vacancies on the National Labor Relations Board (NLRB). Unless the Court ducks the issues presented in the case, Noel Canning promises to become yet another important case in a string of recent decisions involving structural challenges to federal administrative agencies—challenges that have sought to limit agencies’ power based upon the Appointments Clause, the President’s recess appointment power, the President’s general Article II powers, and the judiciary’s Article III powers. For example, in 2010 in Free Enterprise Fund v. Public Company Accounting Oversight Board the Court held that the dual for-cause restrictions placed on removal of members of the Public Company Accounting Oversight Board (PCAOB) violated separation-of-powers principles. Similarly, in 2011 in Stern v. Marshall the Court held that a non-Article III bankruptcy court could not constitutionally enter a final judgment on a state-law tortious interference counterclaim.

Even though significant attention has been given to the constitutional merits of these and other recent cases, exceedingly little attention has been given by litigants, the courts and scholars to a subsidiary question lurking in the background of the cases: What should the proper remedy be when separation-of-powers violations are found to exist in the structures of federal administrative agencies? Professor Kent Barnett, an assistant professor at the University of Georgia School of Law, quite perceptively identifies this little-noticed question and begins to try to answer it in a forthcoming article titled To the Victor Goes the Toil—Remedies for Regulated Parties in Separation-of-Powers Litigation, which is soon to be published in the North Carolina Law Review. Given that the Noel Canning case is looming on the Court’s docket and various other structural challenges have been brought challenging the newly-formed Consumer Financial Protection Bureau (CFPB), Professor Barnett’s article is extremely timely. Indeed, it is a “must read” for courts and litigants involved in structural separation-of-powers cases as well as constitutional and administrative law scholars. Continue reading "Remedying Structural Separation-of-Powers Violations"

What Happened to the “Standard Employment Contract” and What Are Some Countries Doing About It?

Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (Katherine V.W. Stone & Harry Arthurs eds., 2013).

This book is the result of a project funded by the Russell Sage Foundation that brought all of the contributors together in September 2010 in the outstanding setting of Bellagio, Italy. The contributors were an all-star group of 22 academics and practitioners from around the world. Ten are from law, five from industrial relations, and the rest from various social sciences and business. Despite the idyllic setting for their work, the result of their collaboration is a collection of papers that work very well together to focus on significant development in the world of work, the rise and fall of what they call the “standard employment contract” (SEC). After the end of World War II and until sometime in the 1990s, a large percentage of workers in most of the developed countries had SECs. They had an array of job rights including “decent wages, protections against unfair treatment at work, social insurance provided by the state or the employer and, notably, some degree of job security.” While not all workers had them, SECs “became one of the pillars of the postwar economic system.” The system was the basis of the creation of a substantial middle class made up of workers, mostly male, in large manufacturing enterprises.

What is also made clear is that, while SECs had been the norm, the factors that produced them were substantially different among these different countries. Some SEC systems were driven by legislative mandate, while others, like those in the United States, were the result of labor markets internal to individual enterprises where the mutual expectation of long term employment created an incentive for both the employer and its workers to invest in firm specific skills. While perhaps procrustean, the developed Organisation for Economic Co-operation and Developement (OECD) countries are based on three broad economic traditions— “liberal” market oriented societies like the United States and the United Kingdom; “corporatist” countries in continental Europe like France and Germany, in which the government sits at the bargaining table with labor and management; and “Nordic” social-market economies like Sweden and Denmark that have universal and extensive social benefits with significant wealth redistribution through taxation. Continue reading "What Happened to the “Standard Employment Contract” and What Are Some Countries Doing About It?"