Yearly Archives: 2018
Feb 9, 2018 Marin K. LevyCourts Law
Daniel Epps & William Ortman,
The Lottery Docket, 116
Mich. L. Rev. (forthcoming 2018), available at
SSRN.
Every year thousands of parties ask the Supreme Court to hear their cases. Every year the Court disappoints the vast majority of them, selecting only about one percent of cert petitions. And every year scholars decry the Court’s choices—arguing that the Justices have taken too few cases and not even the most important ones at that. One can imagine the Justices turning to each other at conference and lamenting, “Everyone’s a critic!” But have we been raising the right sorts of criticisms? The Lottery Docket, by Daniel Epps and William Ortman, suggests not so much.
In this thoughtful piece, Epps and Ortman challenge both convention and conventional wisdom around case selection at the Court. The Justices fail to take the right cases not because (or not just because) they incorrectly identify which ones are important, as so much scholarship has stated, but precisely because they miss ones that are unimportant. By selecting and then deciding cases based on such factors as whether a given issue has resulted in a circuit split and attracted sufficient attention from amici, the Court has a distorted view of the legal landscape and thus how its decisions might affect parties and the courts below. Epps and Ortman’s elegant solution to the problem is to supplement the Court’s current docket with some randomly drawn cases from the courts of appeals—a “lottery docket.” Continue reading "Redesigning the Cert Process"
Feb 8, 2018 Sarah Barringer GordonConstitutional Law
Most likely, Tisa Wenger’s new book Religious Freedom: The Contested History of an American Ideal is not on many law professors’ reading lists. But for anyone who is interested in issues of church and state, race, and American empire, it should be. Wenger has uncovered a powerful collection of movements, legal claims, and government interference in religious life in the early twentieth century. Many of us have either never heard of them, or have not understood how crucial they were to religion’s role in public policy and (occasionally) resistance to government power. This is not a book written by a legal expert: the terms “disestablishment” and “free exercise” don’t appear here. But it is full of constitutional claims and legal conflict, as well as a careful examination of the incentives for invoking religious freedom.
Religious Freedom is in some ways a continuation of Wenger’s first book. In We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom, Wenger argued that Pueblo Indians successfully deployed the language of religious freedom in the 1920s to protect their dances from white interference. In the process, Wenger maintained, they subtly changed how they understood their own practice, buying into a division between what counts as religious and what is secular. Continue reading "The Problem with Religious Freedom"
Feb 7, 2018 Ezra RosserProperty
Property scholars have neither forgotten nor ignored the government’s role in creating and furthering racial segregation. Scholars have written extensive work on redlining, racially restrictive covenants, the siting of public housing in minority poor communities, and the resistance of wealthier white towns to affordable housing.
Nevertheless, Richard Rothstein’s book, The Color of Law, should be required reading for property scholars and students. Beautifully written, the book is packed with new details and stories that illustrate the many ways government—at the local, state, and federal levels—denied African-Americans equal access to space and property. Continue reading "Property, Race, Segregation, and the State"
Feb 6, 2018 Mary ZieglerLegal History
The law delivers uneven benefits for the protagonists of Daniel K. Williams’ masterful study of the early decades of the pro-life movement. Williams chronicles the transformation in the 1960s of what had been a religious crusade against contraception and abortion into a secular, rights-based cause that also appealed to some left-leaning Catholics and Protestants. Williams argues that antiabortion activists invested more in legal strategies after the Supreme Court’s decision in Roe v. Wade. Leaders of the movement became preoccupied with a constitutional amendment overturning Roe. Entanglement with law ultimately undercut demands for material benefits that some pro-lifers believed women required to have a real reproductive choice.
Williams first takes readers into the poorly understood years of early pro-life activism when “the campaign against abortion was almost inseparable from the Catholic Church’s fight against contraception.” (P. 4.) By studying the predominantly religious and medical debates that dominated the 1930s and 1940s, Defenders of the Unborn recovers a mostly lost prehistory of the abortion battle. At this time, as Williams shows, debate often turned not on the meaning of the Constitution but on the medical need for abortion and the religious beliefs of those opposed to it. Williams also traces the origins of now-ubiquitous comparisons of abortion and the Holocaust to this period.
As Williams’ story moves into the 1950s and 1960s, the antiabortion movement often relied on law and lawyers. Defenders of the Unborn digs deep into early debates about abortion reform in California when Walter Trinkaus, a lawyer representing the California Conference of Catholic Hospitals, argued that legal disputes should turn on whether the fetus was a person. Although it was far from evident at the time, Trinkaus’ argument would soon come to define those who for the first time identified themselves as part of a social movement. Continue reading "The Costs of Constitutional Principle"
Feb 5, 2018 Jedidiah KronckeInternational & Comparative Law
In late October of 2017, China’s central leader Xi Jinping gave a speech in which he expressed a renewed campaign to “sinicize” religious practice under greater Party control. This call is part of a long history of ambivalence, repression and bureaucratization that has characterized the uneasy practice of religion under China’s formally atheist single-party state. But it this tactic of bureaucratization that most eludes outside understandings of the regulation of religion in China.
Into this relative void, Matthew Erie’s China and Islam: The Prophet, the Party, and Law presents a model of the contribution that legal ethnography can make to understanding not only the regulation of social life in contemporary China but also to a myriad of critical issues constituting the multi-faceted relationship of Islam to contemporary nation-states. As both a socio-legal and comparative inquiry, Erie’s ethnographic and scholarly investment over the better part of decade has produced a rich empirical account that speaks in a wide range of theoretical and disciplinary registers and offers value for an equally wide range of readers. Continue reading "Muslim China: Regulating Religious Resistance and Cooptation"
Feb 2, 2018 Philomila TsoukalaFamily Law
Domenico Starnone,
Ties (translated by Jhumpa Lahiri, 2017).
“Happy families are all alike; every unhappy family is unhappy in its own way.”
(Come on, you know who said this)
Family law, in the limited way we have construed it over the last eighty years or so, deals almost entirely in unhappy families. When the law comes in it is separation, divorce, or restraining order time, custody determination, child support, abuse and neglect time. Happy memories are in the past, and the only thing that remains is an accounting, whose apparent aim is to make possible a—legally—bearable life in the future.
Yet family law tries to defy Tolstoy’s observations about unhappy families. It attempts to categorize and systematize types of unhappiness, put them in boxes to make them manageable by judicial or administrative fiat. The attempt, no matter how necessary, often proves to be just that, an attempt, incomplete and even incoherent. The messy incommensurability of intimate relations often forces family law to crack at the doctrinal seams, allowing infinite variations of family unhappiness to burst out without much hope of systematic categorization or containment. How else can we grapple with the “best interests of the child” standard, for example, with its grand gesture towards certainty and a concurrent knowing wink about the impossibility of predicting the future? Even the past, theoretically more knowable than the future, flickers in and out of focus in doctrinal vehicles as mysterious as “irretrievable breakdown,” which—inevitably—become the equivalent to a judicial rubber stamp on a decision already made, rather than a coherent description of a set of events in the world. Continue reading "The Ties that Bind—and Cut"
Feb 1, 2018 Toni WilliamsEquality
My reading of Deliberating Racial Justice: Toward Racially Democratic Crime Control (Chap. 18 of The Routledge Handbook of Criminal Justice Ethics) came about because of a research project about the role of law in implementing inclusionary practices. That project focuses on practices intended to overcome exclusion in specific parts of society in Latin America and Europe, but as Ward and Hanink observe, historical practices of exclusion, and their legacies, appear everywhere: “Worldwide, racial and ethnic group domination of legal authority—through legislation, within courts, in policing, and among influential associations—has proven a fundamental mechanism of oppression and domination, that is, a practical means by which groups defined by race have been denied self-realisation and societal participation.” (P. 283.)
With these words, the authors neatly pinpoint the problem — the injustices — that strategies and policies intended to remedy racial oppression and advance racial equality must address. In the body of this well-crafted essay, the authors critically examine one familiar response to racial oppression, “representation,” looking in particular at its capacity to change existing practices of domination through legal authority and to enable self-realisation and societal participation regardless of race. They situate their examination of this topic in the specific context of crime control administration in the United States of America. However, the paper’s exploration of how representation is typically implemented, exposure of the limitations of mainstream approaches, and advocacy of a more substantive model of “deliberative representation” as a means to advance racial justice gives the paper significance outside the United States and beyond criminal justice. Continue reading "Now What? Substantive Racial Justice in Turbulent Times"
Jan 31, 2018 Mila SohoniAdministrative Law
Katherine Shaw,
Beyond the Bully Pulpit: Presidential Speech in the Courts, 96
Tex. L. Rev. 71 (2017), available at
SSRN.
President Donald Trump is a loquacious man. He speaks at rallies, he speaks at interviews, he speaks at press conferences, he speaks in addresses to Congress, and—nearly every day—he speaks on Twitter. Sometimes, he speaks about his own speech, as when, at a recent rally in Phoenix, Arizona, he quoted at length, though with notable omissions, from his own earlier statements concerning the recent events in Charlottesville, Virginia, where a woman was killed at a protest by neo-Nazis and white nationalists.
In her recently published article, Beyond the Bully Pulpit: Presidential Speech in the Courts, Professor Kate Shaw examines the phenomenon of presidential speech and explains how the courts should treat presidential statements in the course of deciding cases that challenge executive-branch action. Her article has already (and rightly) enjoyed a fair share of the limelight; Professor Shaw’s work on presidential speech was featured in the New Yorker and in the National Law Journal. She also wrote an op-ed on presidential speech in the New York Times earlier this summer. So, while this Jot comes late to the party, I hope it will persuade administrative law scholars who haven’t yet encountered this article that it is still well worth a read. Public presidential statements aimed at influencing agency behavior are an increasingly important facet of “presidential administration,” in the phrase coined by then-Professor Elena Kagan in her famous article. And while Professor Shaw’s discussion ranges far beyond the words of the sitting President, this article is especially salient nowadays, when the headlines are often consumed with reporting and dissecting President Trump’s every utterance. Continue reading "Did He Really Just Say That?"
Jan 30, 2018 Tess Wilkinson-RyanContracts
Who is best suited to police unfair terms—the market, the judiciary, or the legislature? Williams vs. Walker-Thomas Furniture has long been offered as a cautionary tale, but in her 2014 article, legal historian Anne Fleming takes on the standard narrative of judicial overreach and recasts the relationships among institutional actors in a reform movement.
In 1965, Judge Skelly Wright ruled that Ora Lee Williams’s contract to pay for furniture on a pro rata installment plan was subject to review for unconscionability—a moment of judicial activism that was later blamed for the decline and stagnation of the doctrine of unconscionability. Fleming pushes back against the standard narrative that Williams created a backlash against Wright’s ‘law of the poor’ – according to that simplistic story, “Judges ended up hurting the very people they were trying to help. In the face of incisive criticism, judicial enthusiasm for the doctrine of unconscionability quickly faded.” (Pp. 1387-1388.) Fleming’s argument reframes the Williams decision within a broader context of judicial, legislative, and popular pressure, tracing the revival of unconscionability back to the Uniform Commercial Code, enacted in Washington, D.C. in 1963. In the Williams case, Judge Skelly Wright announced that the UCC’s unconscionability provision in 2-302 was “declaratory of the common law” and ordered the trial court to apply the doctrine on remand. Critics have characterized the Williams case as a short-lived moment of “judicial enthusiasm” soon replaced by more effective legislative action. Fleming argues that consumer protective legislation was enacted not to replace judicial review of unfair terms, but to complement it. The Williams transaction was of course at the center of the litigation with Walker-Thomas furniture, but her situation was also repeatedly invoked in consumer credit policymaking deliberations. “[T]he Williams litigation brought together a coalition of reformers, who pressured Congress to adopt a new set of rules for policing installment sales.” (P. 1438.) Continue reading "“You Are Asking Me About Reading Things I Never Had to Read”: Consumer Contracting in Historical Context"
Jan 29, 2018 Jonathan SimonCriminal Law
Sara Mayeux,
The Idea of ‘The Criminal Justice System’,
Am. J. Crim. L. (forthcoming 2018), available at
SSRN.
Do you want to reform the criminal justice system? Maybe with new evidence-based practices? Or maybe you doubt the word ‘justice’ is appropriate and you would like to shrink the criminal system more generally? Good luck, because, to paraphrase an old anarchist poster from London that used to hang on my wall in high school, “whoever you voted for, the system got in.” In short, almost all of us return repetitively to the idea, the metaphor really, that the criminal process is or at least can aspire to be a system. It may be time, in the aftermath of mass incarceration, to not only reform, and shrink American crime control institutions (or the carceral state if you prefer), but to (use a horrible malapropism, forgive me George Orwell) de-systematize it.
Mayeux’s enlightening essay provides us a genealogy of the rise of system thinking over criminal justice thinking. The idea that all things natural and artificial can usefully be thought of as systems (and creation a complete system) goes back to the Enlightenment at least. Modern sociology, in its mid-century rise to national prominence, promoted the idea of a social system, inside of which functioned numerous sub-systems. After the war systems theory took off in the operations research wing of engineering where, spurred by the tremendous numbers of bombs dropped and planes built and destroyed during World War II (Mayeux skips these details), the idea of breaking down processes into their essential elements and studying their flow and interaction took hold. This thinking seeded in business schools in the 1950s and came back to government with Robert MacNamara in the 1960s. Continue reading "Time to Re-think the Idea of System"
