Monthly Archives: December 2013

Punishing Taxpayers for Erroneous Convictions

Andrew Chongseh Kim, Beyond Finality: How Making Criminal Judgments Less Final Can Further the Interests of Finality, 2014 Utah L. Rev. (forthcoming), available at SSRN.

Appellate courts often adjudicate as if prison is free. While no doubt many judges and justices are concerned with the accuracy and fairness of the convictions they review, at least to a degree, they also make economic judgments as if the costs at issue were principally borne by the judiciary. Criminal defendants can lose appeals not because their claims are meritless, but because the issue was not timely or sufficiently raised below; courts affirm in the face of error on considerations of judicial economy or avoidance of further proceedings which would not have been necessary had the issue been raised in a timely manner.1

A court-focused analysis of costs might have been reasonable in an era when prison populations were much smaller and probationary sentences were available for almost every offense. Today, however, at issue in almost every criminal appeal is whether to affirm the issuance of a six- or even seven-figure check, paid not by the judiciary but by the taxpapers. Professor Andrew Chongseh Kim’s paper suggests that courts have been looking at the economics through the wrong end of the telescope. Continue reading "Punishing Taxpayers for Erroneous Convictions"

Managing Global Supply Chains: Coca Cola and Sugar in Brazil

Salo V. Coslovsky & Richard M. Locke, Parallel Paths to Enforcement: Private Compliance, Public Regulation, and Labor Standards in the Brazilian Sugar Sector, 41 Pol & Soc 496 (2013), available at SSRN.

An article in the Wall Street Journal in June 2013 described supply chain management as “The Hot New M.B.A.” The Whitman School of Management at Syracuse University says it has been focusing on supply chain issues since 1919, and says that now “[s]upply chain managers very often hold the key to corporate profitability.” But as well as managing supply chains from the perspective of efficiency, corporations also need to manage their legal and reputation risks, especially when their supply chains are global. Transnational corporations manage these risks by developing and monitoring compliance with their own codes of conduct. At the same time the states where producers and manufacturers operate have, and are developing, their own regulatory regimes.

In a special issue of Politics & Society on regulation in Latin America, Salo Coslovsky and Richard Locke examine interactions between private codes and public regulation focusing on Coca-Cola’s management of working conditions in its sugar supply chain in Brazil. As the authors point out, working conditions in the sugar production industry have generally not been good: sugar production inherently involves hard work in hot climates, and large and politically connected family firms are involved in sugar production in Brazil. Recent events illustrate that focusing on working conditions does not tell the whole story: in October 2013 Oxfam published a report which argued that increasing demand for sugar was encouraging large companies to displace poor sugar farmers. Coca-Cola promptly promised to take action to protect land rights of farmers in sugar-producing areas. Nevertheless, Coslovsky and Locke describe an interaction between private and public regulatory regimes that improves working conditions for sugar producers. And it is the interaction that matters: public regulation and Coca-Cola’s efforts combine to help workers. Continue reading "Managing Global Supply Chains: Coca Cola and Sugar in Brazil"

Can “Semi-Procedural Review” Help Solve the Problems of Constitutional Theory?

Ittai Bar-Siman-Tov, Semi-Procedural Review, 6 Legisprudence 271 (Dec. 2012), available at SSRN.

The most famous problem in American constitutional law is the counter-majoritarian dilemma, which asserts that it’s troubling for an unelected U.S. Supreme Court to invalidate duly enacted laws. In a journal article, Semiprocedural Judicial Review, Israeli legal scholar Ittai Bar-Simon-Tov makes an important contribution to the scholarly debate over this dilemma, drawing partly on the jurisprudence of several national and trans-national courts. This global focus distinguishes his article from some similar earlier work by American law professor Dan Coenen. Tov’s theory preserves judicial review but also promotes deliberative democracy.

The article starts with evidence that various courts have found laws unconstitutional, or illegal, because the laws were adopted without sufficient deliberation, public consultation, legislative findings, notice, or other procedural protections. The author himself does not reject substantive review, but he argues that examining a law’s procedural context should also determine legality, especially when courts are engaged in proportionality analysis (e.g. the balancing of the state’s interest versus the individual’s burden). This addition of procedural to substantive review minimizes the counter-majoritarian dilemma by fostering thicker democratic processes. Continue reading "Can “Semi-Procedural Review” Help Solve the Problems of Constitutional Theory?"

Soft Institutional Design

Margo Schlanger, Offices of Goodness: Influence Without Authority in Federal Agencies, U. Mich. Pub. L. Res. Paper No. 353 (September 9, 2013), available at SSRN.

Margo Schlanger is a law professor at Michigan well-known for her work on prisons, structural reform litigation, and civil liberties, but not (yet) on administrative law as such. Perhaps for precisely that reason, she has given us here a novel, plausible and important account of a new species of administrative institution, one that administrative lawyers have heretofore failed to describe in general terms. A “new” species not in the sense that the species is new to the world, of course, but in the sense that it is newly identified by theory. Field zoologists discover species or traits of species that complicate or overturn established theoretical taxonomies; W.H. Caldwell famously proved that the platypus is a mammal that nonetheless lays eggs (“monotremes oviparous, ovum meroblastic”—so ran the immortal telegram). Likewise, field research on institutional design in the wild often does more for the progress of knowledge than a dozen nth-decimal refinements on whiteboard models of administrative interaction.

The novel institutional form here is the “Office of Goodness,” an office embedded within a larger agency and tasked with promoting or enforcing an extrinsic value that is orthogonal to the agency’s mission, or even one that constrains the agency’s mission. Schlanger headed the Office of Civil Rights and Civil Liberties embedded within the Department of Homeland Security from 2010 to 2012, and she draws upon her personal experiences with the effort to temper the imperatives of security by a measure of attention to liberty and security. But there are no war stories here, only informed illustrations of the larger theme. And Schlanger identifies similar offices from elsewhere in the government. Continue reading "Soft Institutional Design"

I’m Shocked, Shocked To Find that Politics Is Going on in Here

Charles J. Morris, How the National Labor Relations Act Was Stolen and How it Can Be Recovered: Taft-Hartey Revisionism and the National Labor Relations Board’s Appointment Process, 33 Berkeley J. Emp. & Lab. L. 1 (2012), available at SSRN.

Charles J. Morris, Professor Emeritus at Southern Methodist University Dedman School of Law, is a giant in the field of labor law. After graduating from Columbia Law School in 1948, he practiced in Dallas, Texas, for just shy of 20 years before receiving an academic appointment at SMU, where he taught for about a quarter-century, from 1967 until his retirement in 1991. During his first year in teaching, Professor Morris began service as a labor arbitrator. In 1978 President Carter appointed Morris to serve on the Federal Services Impasse Panel (FSIP), a post he held until 1983. Despite his retirement, Morris has remained an active scholar. Indeed, Cornell University Press published his magnum opus, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace in 2005, a book that earned him a place on the Right-to-Work’s Ten Most Wanted list.

In other words, Professor Morris is an active 90-year-old with a plethora of institutional knowledge about the Act. He started law school when the National Labor Relations Act (NLRA) was the Wagner Act. He graduated from law school after the passage of Taft-Hartley. He practiced law for two decades before teaching labor law for another quarter-century. He has been involved in labor-dispute resolution as an arbitrator and as a member of the FSIP. His labor law scholarship spans five decades. He has lived through almost the entire history of modern labor law. So when he writes about the subject that puzzles all labor scholars—why is union density so low—those in his field should at least consider his thoughts. Continue reading "I’m Shocked, Shocked To Find that Politics Is Going on in Here"