Yearly Archives: 2016
Feb 10, 2016 Katharine BartlettFamily Law
A concern about the marriage equality movement is that it has reinforced the supremacy of marriage and detracted from the LGBT community’s broader agenda of family pluralism. In her stunning new work, Serena Mayeri describes a similar dynamic in the history of another civil rights movement—the movement to eliminate illegitimacy classifications. There, too, important civil rights were secured at the cost of achieving broader, more comprehensive legal reform on behalf of non-conforming families. The parallelism of these two movements is not random or fortuitous. Indeed, Mayeri’s work shows that the movements contributed to the same legacy of marital supremacy and that the loser in these two movements was the same: women, especially poor women and women of color, whose circumstances and desires put them outside the mainstream of traditional marriage.
Case by case, Mayeri takes us through the major litigation of the 1960s and 1970s that challenged illegitimacy classifications in Social Security benefits, inheritance rights, wrongful death claims, public assistance benefits, mandatory paternity disclosure rules, citizenship law, child support law, and employment bans against unmarried women. She shows that the illegitimacy challenges that succeeded (and many did not) did so because courts concluded that it was unfair to visit the sins of unmarried mothers upon their children. It was not that children were to be treated fairly along with their mothers; rather, they were to be rescued from the circumstances their mothers had created. Continue reading "The Low Road"
Feb 9, 2016 Margaret DaviesEquality
Manifesto for Living in the Anthropocene is notable for two reasons – it is published under a creative commons license with a publisher committed to innovation, and it is an optimistic book that attempts to prefigure a world in which life and research are undertaken more sustainably. (And it contains an actual manifesto!)
The first thing to like about this book, therefore, is its publisher, in particular its business model and its ethos. Punctum texts are freely available on the internet – readers can make a donation before accessing a title, but can also access them for free. Hard copies can also be ordered. The objective of punctum books is to challenge scholarly norms – its motto is ‘spontaneous acts of scholarly combustion’ and it describes itself as ‘dedicated to radically creative modes of intellectual inquiry and writing across a whimsical para-humanities assemblage. We specialize in neo-traditional and non-conventional scholarly work that productively twists and/or ignores academic norms.’ As academics become more critical about certain trends in traditional scholarly endeavor with its formalities and many constraints, there is a huge potential for new forms of more open-ended and innovative scholarship. Books published by punctum are short – novella length – making them ideal for conveying creative interventions succinctly, without getting bogged down in detail. Continue reading "Thinking for the Future"
Feb 8, 2016 Herbert LinTechnology Law
Kristen Eichensehr
, Cyber War & International Law Step Zero, 50 Tex. Int’l L.J. 355 (2015), available at
SSRN.
Kristen Eichensehr recently published a piece entitled Cyberwar & International Law Step Zero that describes an unfolding of events that is by now familiar to international lawyers contemplating the emergence of new military technologies. First, a new military technology X (where X has been drones, cyber weapons, nuclear weapons, lethal autonomous weapons) appears. Nations then ask the “step-zero” question — “does international law apply to the use or acquisition of X”? And the answer is inevitably, “yes, but in some ways existing international law needs to be tweaked to adjust for some of the novel characteristics of X.”
Eichensehr offers a compelling explanation for both the persistence of this question and the recurrent answer. Regarding persistence, she points out that for international law, unlike domestic law, the bound parties—nations—bind themselves consensually. For example, she writes that “The tradition of requiring state consent (or at least non-objection) to international law predisposes the international legal community to approach new issues from the ground up: When a new issue arises, the question is whether international law addresses the issue, because if there is no evidence that it does, then it does not.” In other words, asking the step-zero question is the first step in proceeding down a path that may result in a state’s opting out. Continue reading "International Law and Step-Zero: Going Beyond Cyberwar"
Feb 5, 2016 Jonathan SimonCriminal Law
- Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 U.C.L.A. L. Rev. 1156 (2015).
- Allegra M. McLeod, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, 8 Harvard Unbound 109 (2013), available at SSRN
Two recent articles by Professor Allegra M. McLeod, her 2013 essay, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, and her 2015 article, Prison Abolition and Grounded Justice, represent the most significant attention to the idea of prison abolition inside the legal academy for at least generation. The first builds toward the second, a powerful and broad gauge intervention in the current exciting moment of reform in criminal law and justice. Together they constitute some the most exciting new work on criminal justice I have read in sometime.
We stand at what increasingly seems like the most promising change point in decades in the criminal justice era. Academics, long out of the action find themselves facing two risks. If we too exuberantly carry forward the radical critique of criminal justice, at a time when the system seeks legitimacy from researchers, we may miss the opportunity to help build a more “evidence based” system and even contribute to an eventual public backlash in favor of a return to “get tough” punitive policies. The other risk is that we accept premature closure of the era of mass incarceration, embracing too many of presumptions about crime, high incarceration neighborhoods, and law enforcement competence that built and sustained the era of mass incarceration. Professor McLeod’s essay and article are, along with the recent book Captured by Professor Marie Gottschalk of the University of Pennsylvania, Department of Political Science, the strongest efforts yet to push attention to the latter risk, of defining mass incarceration “down” in ways that will allow it to reshape and reformulate itself (perhaps into a system of mass probation or mass jailing). Continue reading "Abolition Calling"
Feb 4, 2016 Brooke D. ColemanCourts Law
Elizabeth Y. McCuskey,
Submerged Precedent, 16
NEV. L. J. __ (forthcoming 2016), available at
SSRN.
In the modern age, there is no shortage of information. The internet and the tools it has inspired lead many—myself included—to feel overwhelmed by the sheer volume of what is out there. As a consequence, I came to Elizabeth McCuskey’s Submerged Precedent with some degree of skepticism. McCuskey, after all, argues that even more information—in the form of “submerged” district court opinions—should be made readily available. After reading this carefully researched and artfully written article, however, I am a believer. And I think you will be too.
First, what is “submerged precedent?” Although district courts do not create vertically or horizontally precedential opinions in the strictest sense, McCuskey argues that district court opinions contribute to how decisional law develops. She adopts a broad view of precedent—reaching any court opinion that provides reasoned arguments—which results in a large body of persuasive law. As McCuskey argues, however, the law can only be persuasive to the extent it is available to the parties, and consequently, to courts. This is where submersion comes into play. The question is which district court opinions are available and where. District court judges designate opinions that they deem to be particularly important as “published.” Those opinions then appear on Westlaw (or other legal databases such as Lexis, but for ease, I will refer to only Westlaw). Unpublished district court opinions may also appear on Westlaw, but only if the authoring judge designates them as “written opinions.” What remains “submerged” are reasoned decisions that do not carry these designations. Instead, they can only be found on databases such as PACER, which has limited search functionality and charges a fee for everything other than “written opinions,” or Bloomberg, which while more searchable, is quite expensive. These opinions constitute the submerged precedent about which McCuskey is concerned. Continue reading "Bringing Court Reasoning to the Surface"
Feb 3, 2016 Caroline BradleyCorporate Law
Mihailis Evangelos Diamantis,
Corporate Criminal Minds, 91
Notre Dame L. Rev. ___ (forthcoming 2016), available at
SSRN.
The Yates Memo emphasizes the need to fight corporate crime by imposing criminal liability on individual criminal perpetrators. But critiques of corporate deferred prosecution agreements and cascades of examples of corporate criminality involving crimes such as bribery, manipulation, tax evasion and sanctions-busting raise questions about criminal liability of corporations as well as the liability of individual wrongdoers. Whether sanctioning individuals or the corporations they work for would be more effective in achieving deterrence or vindicating society’s interest in ensuring legal compliance and sanctioning legal violations is an empirical question. But improving the rules about corporate criminality does not require abandoning efforts to sanction individual criminality.
The problem Mihailis Diamantis addresses in this article is not a new one: corporations may be subject to civil and criminal liability for their acts, but assigning criminal liability to a corporation depends on an “antiquated gimmick—respondeat superior,” which focuses on attribution of employees’ intent to the corporation, rather than on any real theory. Diamantis states that respondeat superior results in assigning criminal liability to corporations where the criminal acts resulted from the actions of a few rogue employees, and insulating the corporation from criminal liability inappropriately merely because no single employee has the requisite mens rea. He argues that whereas respondeat superior may have made sense as the basis for the attribution of mens rea in the context of small corporations it makes no sense in the context of large complex modern business enterprises. Corporate personhood may be a legal fiction, but it is one to which the law is committed, and therefore it is necessary to be able to identify the mental state of these fictional persons. Continue reading "Corporate Intent and Corporate Crime: A Matter of Inference"
Feb 2, 2016 Steve VladeckClassics
For those who teach and write about the federal courts and/or constitutional law, Alexander Bickel’s 24-page review of how the Voting Rights Act fared in the Supreme Court – a lucid dissection of South Carolina v. Katzenbach, Harper v. Virginia State Board of Elections, and Katzenbach v. Morgan — would almost certainly be worth a read as a pure matter of historical (and academic) curiosity.
What’s particularly salient about Bickel’s analysis, though, is its contemporary relevance along at least two axes. First, it provides the outlines of a rejoinder to the Supreme Court’s 2013 conclusion that key provisions of the VRA are unconstitutional (for economy of space, I’ll leave this issue to the interested reader). Second, and, even more significantly, it makes perhaps the most emphatic argument against broad state standing in lawsuits challenging the scope of federal government policies — including Virginia’s rejected challenge to the Affordable Care Act’s individual mandate and Texas’s pending challenge to President Obama’s “deferred action” immigration policy. Thus, although no one needs convincing that Bickel was the first among equals, contemporary readers might benefit from this relatively short and less well-known piece of his. Continue reading "The Perils of State Standing, Revisited"
Feb 1, 2016 Mila SohoniAdministrative Law
Jacob E. Gersen & Matthew C. Stephenson,
Over-Accountability, 6
Journal of Legal Analysis 185 (2014).
Many an administrative law article ends with a simple and appealing recommendation: “just add accountability!” Accountability, along with institutional expertise and democratic legitimacy, is one of the key yardsticks that frames evaluations of the legal rules and institutions of the regulatory state. Why might judicial deference to agency interpretations of statutes be desirable? Because agencies are more politically accountable than courts. Why might privatization be worrisome? Because corporations are less accountable than agencies. Accountability, like motherhood and apple pie, is something we can all safely get behind.
Or is it? In Over-Accountability, Jacob Gersen and Matthew Stephenson look at the downsides of augmenting the accountability of political institutions. Lots of ways exist to add accountability to governmental decision-making: one could have more elections, or concentrate power in a “unitary” executive, or reduce the power of politically unaccountable Article III courts. As the authors point out, these and other such accountability-enhancing moves might actually have a surprising and perverse consequence: they might exacerbate bad behavior by the government. Continue reading "Too Much of a Good Thing"
Jan 29, 2016 Joseph SlaterWork Law
Sanjukta Paul,
The Enduring Ambiguities of Antitrust Liability for Worker Collective Action, 47 Loy. U. Chi. L.J. ___ (forthcoming 2016), available at
SSRN.
As someone interested both in the history of workplace law and in modern forms of worker organization, but not especially well-versed in antitrust law, I was delighted to read, and learned a lot from, Sanjukta Paul’s excellent article. The piece starts with a troubling suggestion I have not seen seriously addressed elsewhere: antitrust law could be used against workers engaged in collective action if those workers are not traditional employees: e.g., against low-wage independent contractors. After showing this is a legitimate concern, Paul provides a rich description of the history of antitrust law (including but not limited to the “labor exemption”). She then makes a convincing argument that while current antitrust law could be applied to such collective action, it should not be. While her history is ultimately aimed at a modern issue, this is not “law office history.” Indeed, her detailed discussion of the development of both antitrust and labor law (a rare combination) would be a worthwhile contribution to the historical literature by itself. Linking it to a modern question makes the piece even more valuable.
Paul starts with a vignette about a 1999 federal antitrust investigation into potential price-fixing by striking port truck drivers who were not “employees.” This leads her to the early days of labor and antitrust. She argues that before the New Deal, courts “dominated by classicists who were concerned primarily with freedom of trade and contract, imported fundamentally hierarchical and coercive assumptions regarding workers” into the Sherman Act. (P. 2.) In so doing, the courts “relied upon status-based normative assumptions that violated their own freedom of contract principles.” (P. 2.) Worker collective action was thus presumptively illicit. The “labor exemption” the Supreme Court ultimately created in the 1940s was the exception, not the rule, and arguably might not apply to independent contractors. Continue reading "The History, and Worrying Contemporary Relevance, of Anti-Trust Law for Non-Traditional Worker Organization"
Jan 28, 2016 Tom SimmonsTrusts & Estates
Kai Lyu explains some of the unique characteristics of Chinese trust law in Re-Clarifying China’s Trust Law: Characteristics and New Conceptual Basis. China’s civil law basis makes for a strange soil in which to transplant (and codify) a common law concept such as the law of trusts, which owes its origins to Medieval England. But other jurisdictions (Japan and South Korea, for example) have adopted trust law without generating the odd mutations that China has. What happened and how can one approach an understanding of the unique creation that is Chinese trust law?
The two principle unorthodoxies with trust law in China are the ambiguous title to the trust res and the almost unrestrained retained powers of a settlor that the 2001 trust act (enacted by the National People’s Congress after two false starts in 1996 and 2000) generated. Lyu grounds the thinking of the Chinese legislators in the law of contracts, and identifies how contract law falls short as a theory in explaining trusts, even—or perhaps especially—Chinese trusts. Instead, Lyu proposes, Roman law’s patrimony theory provides a lens for understanding the unique characteristics of Chinese trust law. Continue reading "Mapping Chinese Trusts with a Patrimony Compass"
