Yearly Archives: 2019

Gandhis of the Deep State

Jennifer Nou, Civil Servant Disobedience, 94 Chi.-Kent L. Rev. 349 (2019).

It is a truism that agency organizational charts are at least in part aspirational or idealized. The political appointees at the top lack perfect control over the career employees beneath them in the hierarchy. When all are rowing in the same direction, such agency costs matter little and may go unnoticed. But suppose they are not. What if they barely perceive themselves as in the same boat?

Right now, in many or most federal agencies, it seems that the always present gap between political and career officials is extraordinarily, perhaps unprecedentedly, wide. We see calls for and examples of outright defiance. The historical moment raises the question: Can direct disobedience by agency rank and file ever be justified?

Here, in Civil Servant Disobedience, Jennifer Nou offers an answer. Continue reading "Gandhis of the Deep State"

Coercion in Labor Law: A Fresh Perspective

Michael M. Oswalt, The Content of Coercion, 52 U.C. Davis L. Rev. 1585 (2019).

The National Labor Relations Act (NLRA) prohibits employers and labor organizations from coercing others in several respects. Section 8(a) (1) prohibits employers from coercing employees with respect to their right to engage in concerted activity for mutual aid and protection and to refrain from such activity. Section 8(b)(1)(A) prohibits labor organizations similarly and Section 8(b)(4) prohibits labor organizations from coercing any person with one of four prohibited objects, the most significant being forcing that person to cease doing business with another person, i.e. engage in a secondary boycott. But the NLRA does not define coercion and the National Labor Relations Board (NLRB) and courts have made mostly intuitive judgments about what is coercive. In The Content of Coercion, Michael Oswalt seeks a path to an empirical basis for analyzing whether employer or labor organization conduct is coercive. Although I disagree with several of Oswalt’s conclusions for labor law doctrine, I admire this work for its path-breaking analysis.

Oswalt observes that the NLRA began as the union-supportive Wagner Act but was counterbalanced by the employer-friendly Taft-Hartley amendments. The result was a “fundamentally hybridized statute that protects the right to freely choose [whether to organize] as it also defends the right to freely meddle [in that choice], setting the stage for a conundrum that has haunted labor law ever since: how much free speech is too much for free choice?” (P. 1592.) The answer is when speech becomes coercive because coercion overcomes rational decision making. But, lacking a definition of coercion, the NLRB has resorted to analytical shortcuts. Threats over which a party has control are coercive but predictions of what could happen, absent other unfair labor practices, are not. Picketing is coercive but hand-billing is not. Continue reading "Coercion in Labor Law: A Fresh Perspective"

Layering Property, Disseminating Knowledge

Ruth L. Okediji, A Tiered Approach to Traditional Knowledge, 58 Washburn L. J. 271 (2019).

Presented as the Foulsten Siefken Lecture at Washburn Law School, Professor Okediji’s article, A Tiered Approach to Traditional Knowledge, has implications beyond its focus on traditional knowledge. That’s why it is an article I like lots, as we say in these pages. Its publication in the Washburn Law Journal was accompanied by several thoughtful commentaries, which along with the principal article form a valuable symposium. I like the commentaries a lot too. But I will focus on the main course rather than the tempting side dishes.

Traditional knowledge consists of know-how passed on within local communities carrying forth understandings about healing, cooking, and other fruitful uses of the natural environment. Traditional knowledge is different from traditional cultural heritage, which consists of folklore and artifacts that convey communal interpretations about the world. A common issue raised by both traditional knowledge and traditional cultural heritage is whether their content should in some sense be owned either for the purposes of commercial exploitation or for preservation. Since the legal and political issues are different for the two categories, authors tend to narrow their attention to one or the other. Here, Professor Okediji focuses on traditional knowledge. Continue reading "Layering Property, Disseminating Knowledge"

Should Government Compensate Street Gangs for the Loss of “Identity Property?”

Frank Rudy Cooper reminds us that, “We are born unable to protect ourselves, we become feeble with age, we must fear natural disasters, and our social institutions might work against us.”1  Vulnerability is the inescapable condition of all humankind that compels us to construct various means of mitigating that vulnerability through “resilience.” The creation and accumulation of property is one of the ways in which we buffer ourselves against our own fragile natures and the threatening forces of the world around us.

In her recent article, Professor Lua Kamál Yuille confronts vulnerability and property-centered modes of resilience in a compelling reframing of the modern street gang as a creator of “identity property.” (P. 467.)

We know that gangs fill institutional and societal gaps, replacing family, school, and work. Yuille, however, explores this gap-filling role through the lens of Martha Albertson Fineman’s “vulnerability theory.” She situates the gang’s creation and maintenance of its “identity property” firmly in the milieu of “resilience”—“the accumulation of sufficient resources to allow individuals to confront, adapt to, ameliorate, compensate for, or contain vulnerability.” (P. 475.) Continue reading "Should Government Compensate Street Gangs for the Loss of “Identity Property?”"

Abortion, Motherhood, and Donald Trump

Yuvonne Lindgren, Trump’s Angry White Women: Motherhood, Nationalism, and Abortion, __Hofstra L. Rev. __ (forthcoming, 2019), available at SSRN.

In June, columnist E. Jean Carroll added her name to the list of women who have alleged that President Donald Trump sexually assaulted them, describing him raping her in the dressing room of a department store over two decades ago. In response, Trump said that Carroll was “not my type.” The controversy revived a discussion from the 2016 election asking how a man with multiple credible allegations of sexual assault, recorded on audio boasting that he grabbed women “by the pussy,” received a significant proportion of women’s votes— according to exit polls, fifty-two percent of the votes of white women.

In Trump’s Angry White Women: Motherhood, Nationalism, and Abortion, forthcoming in the Hofstra Law Review, Yvonne Lindgren provides a fascinating explanation rooted in the fights around abortion. She traces a shift in the anti-abortion movement’s tactics after Roe v. Wade to focus on protecting a specific traditional vision of white motherhood through to today’s political and legal conflicts. In her telling, this change in anti-abortion rhetoric laid the groundwork for modern conservative arguments that claim white nationalist motherhood as their standard in broader culture wars. Lindgren’s argument is not only persuasive in its own right, but also helps to explain other movements in the law to limit women’s autonomy within the family and promote a narrow idea of appropriate motherhood. Continue reading "Abortion, Motherhood, and Donald Trump"

Two Chapters in the GIGO Mess Epic

There are two problems with cost-benefit models for environmental policymaking: the model inputs and the model outputs. This is not exactly news. Researchers and reporters have documented honest overestimates of regulatory costs, honest undercounts of regulatory benefits, and dishonest attempts to cook the cost-benefit books.1 The authors of the articles reviewed here avoid such easy targets. Instead, they strike at the heart of the welfarist policymaking preference that promotes and privileges cost-benefit analysis.

Richard Revesz challenges the orthodoxy that distributional effects should not motivate regulatory choices. Bernard Harcourt assails the myth that cost-benefit analysis offers an objective motivation for regulatory choices. Continue reading "Two Chapters in the GIGO Mess Epic"

Learning from Others: The U.S. Legal Profession and Comparative Law

Over the past fifty years, the study of the legal profession has become a robust and exciting field, featuring rich doctrinal, empirical and theoretical inquiries as well as interdisciplinary insights. The growing body of scholarship includes globe-spanning comparative studies, ranging from the past and present of somewhat similar common law systems (several recent jots have covered fascinating regulatory trends and de-regulation developments in the UK), to more distinct legal professions.1

Samuel Levine’s two-volume book, Jewish Law and American Law—A Comparative Study, makes an important contribution to comparative law studies of criminal and constitutional law (volume 1), and analyses of law and narrative, legal history and law and public policy (volume 2). Lawyers, law students, and scholars of the legal profession are likely to be particularly interested in Section Five of volume 1, consisting of five chapters comparing the Jewish and U.S. legal systems. In a concise and enlightening fashion, Professor Levine explores numerous legal profession topics, offering contextual insights and raising ideas for future analysis. Continue reading "Learning from Others: The U.S. Legal Profession and Comparative Law"

What is the Moral Problem with Private Tyranny? Is Contract to Blame?

Both of the first two chapters of this new edited volume–The Contractualisation of Labour Law by John Gardner and Is the Contract of Employment Illiberal? by Hugh Collins—grapple with the structure of employment relationships and how they relate to their legal form. (We are lucky to have had another important recent treatment of this question by Elizabeth Anderson in Private Government (2017).)

John Gardner does not ask precisely the question of my title, but he does offer an answer to it. Gardner is primarily critical of a trend toward what he sees as the contractualization of labour, which he regards of a more general trend toward the contractualization of relationships generally. Tracing our obligations back to contract, he argues, tends to lead us to think that our contracts are the reason we owe other people what we owe them. We also tend to look at our contracts as the fountains of obligation, rather than the nature of our relationships with other people. Continue reading "What is the Moral Problem with Private Tyranny? Is Contract to Blame?"

A Normative Sociological Jurisprudence

A sure sign of a terrific book is that various readers can agree that it is illuminating and impressive but identify different aspects of the book as its most insightful and important elements. Contrasting positive reactions are a testament to the richness of a book. That is what struck me upon reading Sean Coyle’s JOTWELL review of Roger Cotterrell’s Sociological Jurisprudence.1 I second Coyle’s praise for this “very interesting, thought-provoking, and beautifully written book.” And I concur with his assertion that all jurisprudents will profit from reading it.

This review provides an account of what makes Cotterrell’s sociological jurisprudence so different from other contemporary jurisprudential works. While Coyle’s title, “A New Jurisprudence?,” suggests that Cotterrell has a novel take on jurisprudence, he does not explain precisely what makes it new. That is what I focus on in this review. I encourage readers to examine Coyle’s review. He concisely describes the three-part structure of the book—the role of the jurist, transnational regulation, and legal values in sociological perspective—while raising probing questions about each part. I will therefore forego providing a descriptive overview of the book. Continue reading "A Normative Sociological Jurisprudence"

The Center Cannot Hold

Evan Thomas, First: Sandra Day O’Connor (2019).

At the end of the Supreme Court’s October 2010 Term, George Washington University law professor (now President and CEO of the National Constitution Center) Jeffrey Rosen wrote a pointed essay for The Atlantic titled Why I Miss Sandra Day O’Connor. Justice O’Connor retired from the Court in January 2006, and Rosen was writing to bemoan the sharp conservative turn that he believed the Court had taken over the five years since Justice Samuel Alito had been confirmed as her successor. Although Rosen had strongly criticized O’Connor’s “pragmatic, split-the-difference jurisprudence while she was on the Court,” the utility of that approach—and the centrism it bespoke—had not only become increasingly clear in hindsight, but its absence in cases such as Citizens United v. FEC had become increasingly noticeable, and, to Rosen, distressing.

Eight years later, at the end of the Court’s first Term with its new, solidified five-Justice conservative majority, Evan Thomas’s breezy, thoughtful, and incisive new biography of Justice O’Connor leaves the same impression. The monograph, which the Justice authorized and in which she and her family encouraged colleagues and clerks to cooperate, is more than just a recounting of the high (and lower) points of Justice O’Connor’s remarkable (and remarkably well-documented) life and career and an engaging study of the first woman appointed to the highest Court in the land. It is also an elegy—for a moment in the political life of the country and in the perception (and internal politics) of the Supreme Court that has clearly passed. Exactly 100 years after William Butler Yeats warned that “the centre cannot hold,” Thomas’s volume is not just an accessible “intimate portrait” of someone who, in his words, “is easy to caricature and harder to understand;” it is a powerful reminder of the increasingly forgotten virtues of moderation, compromise, and civility—not just within the marble halls of One First Street, but on Main Street, as well. Continue reading "The Center Cannot Hold"

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