Yearly Archives: 2021
Law Schools and the Carceral State
Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631 (2020).
About ten years ago, I was teaching substantive criminal law, and I had a mini-revelation. When it comes to mass incarceration, I was part of the problem. Literally hundreds of lawyers had passed through my criminal law class by then. Some of them were prosecutors, and they were (and are) participating in the project of mass incarceration, adding bodies to the prisons and jails of this country, one person at a time. They are generally smart, decent and thoughtful people, trying to do justice in the context of particular cases in front of them, but they are doing so within a system that is not actually designed to deliver just outcomes. In so doing, they are helping to perpetuate that system. Reflecting on my own role, I had the distinct sense that I had not done enough to provide them with the critical tools they would need to understand and grapple with the realities of their jobs. I was perpetuating that system, too.
Since that time, I have engaged in a painstaking, incremental process of redesigning my substantive criminal law class. The process is still ongoing. Alice Ristroph’s article The Curriculum of the Carceral State, which is both an intellectual history and a practical guide, offers important guidance for me, and for others engaged in this reconstruction process. Continue reading "Law Schools and the Carceral State"
People With Disabilities and the Right to “Live in the World”: The Fourth Amendment and Police Violence, Coercion and Control
Jamelia Morgan, Disability’s Fourth Amendment, 122 Colum. L. Rev. __ (forthcoming, 2022), available at SSRN.
At the end of 2018, USA Today published a list of “normal” activities that had recently prompted calls to the police when Black people engaged in them. The list, which highlighted a series of viral incidents in which white people had wrongly called the police on Black people engaging in everyday activities, included incidents like police calls over Black people barbecuing at a park, sitting in a Starbucks, and mowing lawns. Many of these incidents rightly generated public outrage—and in some instances material consequences—for those who had wrongly sought police intervention. By presenting a list of the “normal, everyday” activities which resulted in police calls when Black people engaged in them, the story highlighted the role that racism plays in what public conduct is perceived as criminal.
Jamelia Morgan’s Disability’s Fourth Amendment invites us to go further and interrogate the ways in which “normal” itself—and associated understandings of what is “reasonable” policing—produce presumptions of criminality when mapped onto disabled “bodyminds” (a term that Morgan borrows from disability studies scholar Sami Schalk). Morgan argues that by failing to account adequately for disability, Fourth Amendment doctrine under-protects people with disabilities, subjecting them to a greater likelihood of stops, searches, seizures, and excessive force. Most troublingly, Prof. Morgan compellingly makes the case that many of the very indicia used to justify police action (including the use of force) under the Fourth Amendment overlap with physical, mental, and behavioral manifestations of disability. Continue reading "People With Disabilities and the Right to “Live in the World”: The Fourth Amendment and Police Violence, Coercion and Control"
The Paths to Comprehensive Entity Liability in Constitutional Litigation
Proferred solutions to the problem of police misconduct have coalesced around qualified immunity—government officials (not only police officers, although that has been the focus of the current political moment) cannot be liable for damages unless it was clearly established by judicial precedent that the officer’s conduct violated the Constitution, such that all reasonable officers would have known their conduct was unlawful. Scholars, justices, judges, and members of Congress have argued for eliminating the defense. And qualified immunity makes an easy target for reform by reference to cases involving prisoners locked in cells containing raw sewage or officers who stole cash and coins while executing a search warrant.
Katherine Mims Crocker offers a different approach. In two related articles that connect to a broader “panoramic view” of the system of constitutional-tort litigation—Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity and Qualified Immunity, Sovereign Immunity, and Systemic Reform—Crocker argues that the key to government accountability for constitutional wrongs lies in eliminating sovereign immunity and expanding the liability of government entities, rather than a pinpoint focus on eliminating qualified immunity (although she agrees the latter should happen). Continue reading "The Paths to Comprehensive Entity Liability in Constitutional Litigation"
If a Will is Never Probated, does it Make a Sound?
Katheleen Guzman, Wills Speak, 85 Brook. L. Rev. 647 (2020).
Interim Dean (Dean) Katheleen Guzman explores the pre-death relevance of a will by determining whether or when a will speaks. She analyzes the legal consequences of a validly executed will before death and the potential property rights of devisees of the will. The focus and thesis of the article reminded me of the adage, “if the tree falls forest and no one hears, does it make a sound?” In translation, I thought, “Does a will make a sound (have a legal effect) if it is never probated?”
As professors, we typically teach that wills are testamentary documents that have no effect until after the death of a testator and probate by the court. Dean Guzman challenges this perspective of the law by exploring the pre-death effect of a will. First, she makes a distinction between property rights and expectancies by comparing deeds to wills. While adding a name to a deed makes a present transfer of property, adding a name to a will may transfer property in the future. Because the will does not currently transfer property, the named devisee has an expectancy, which is not the equivalent of a present or future property interest. Continue reading "If a Will is Never Probated, does it Make a Sound?"
Leaving the Horse and Buggy Days of Limited Recovery for Economic Loss
Catherine M. Sharkey, Public Nuisance as Modern Business Tort: A New Unified Framework for Liability for Economic Harms, 70 DePaul L. Rev. __ (forthcoming, 2021), available at SSRN.
More than a hundred years ago, in Mitchell v. Rochester Railway Co., 151 N.Y. 107, 108 (1896), New York’s highest Court denied recovery to a plaintiff who had being negligently charged by a team of horses. Although the plaintiff was rendered unconscious and suffered a miscarriage, the Court held that she could not recover for “mere fright.” The court excluded recovery even though the team of horses “came so close to the plaintiff that she stood between the horses’ heads when they were stopped.” (P. 108.) The court reasoned: cases had not historically allowed recovery for fright or shock; if recovery were established “it would naturally result in a flood of litigation… a wide field would be opened for fictitious or speculative claims”; and “damages were too remote.” Today, notwithstanding these historical worries, most authorities would permit recovery on the Mitchell line of facts.
In her important article, Public Nuisance as a Modern Business Tort: A New Unified Framework for Liability for Economic Harms, Professor Cathy Sharkey invites readers to question whether nonliability for economic loss, and courts’ similar rationales, should also go the way of horse and buggy. Sharkey suggests “the calculus may be shifting in an age of global financial crises, escalation of digital and informational harms, and growing sense that societal harms of the 21st century involve risky conduct leading to purely financial harms.” (P. 3.) In particular, Sharkey focuses her attention on the public nuisance tort. Are authorities right to specifically permit liability in public nuisance cases while generally limiting liability for negligently caused economic loss? Are they right to focus on liability limitation as their exclusive policy concern in both the public nuisance and economic loss space? Continue reading "Leaving the Horse and Buggy Days of Limited Recovery for Economic Loss"
Race and Class in Tax Policy Scholarship
Isabel Wilkerson, Caste: The Origins of Our Discontents (2020).
Too much of a good thing can sometimes be not so good. A case in point is reliance on optimal income tax scholarship, dating back to James Mirrlees’ Nobel Prize-winning work, to treat the generally assumed declining marginal utility of income as the only reason (apart from egalitarian preferences) for favoring progressive tax and other fiscal policies. As I wrote in a recent book (Literature and Inequality): “Declining marginal utility is important, but it falls far short of capturing the full significance and effects of … inequality in human society. We are not just isolated consumers, growing increasingly more sated as we fill up on pizza slices, or ever more jaded as we push further towards the frontiers of fine living. Rather, we are an intensely social species, and often a rivalrous one, prone to measuring ourselves in terms of others, and often directly against others.” On that ground, if one believes (as I do) that extreme high-end inequality has pervasive adverse effects, one may reasonably support imposing tax burdens on the rich going well beyond those that would be deemed to have a positive net effect if one were focusing solely on the marginal utility of own consumption and leisure.
So far, so good. But while evaluating issues of class, tax scholars (myself included) have often given far too little distinct attention to issues of race. Poisonously entwined though class and race are in the United States, it has become ever clearer that “racial disparities [are not just] … economic inequalities in disguise.” Thus, we should not think that “if we address class issues, we can fix racism.”
Like class issues, race issues show both the inadequacy of declining marginal utility from own consumption as a full psychological (or normative) model, and the importance of status considerations to social behavior and preferences. Racism is not just about animus, but also about the impulse to feel that one is better than other people. Understanding the impact and implications of racial, no less than class, inequality requires a broad sociological inquiry. For U.S. racism today, I know of no better recently published starting point to such an inquiry than Isabel Wilkerson’s Caste: The Origins of Our Discontents. Continue reading "Race and Class in Tax Policy Scholarship"
Liar Up
Jeremy Waldron, Damned Lies (Mar. 4, 2021), available on SSRN.
Among the damage left in the wake of the Trump administration is the degradation of truth. Of course, Donald Trump is not the first president to lie. He has, however, been successful in his assault on many institutions that Americans trust to deliver facts. Trump’s lies about the election results not only left many of his supporters with a false view of reality, but also cast doubt on election officials, courts, and procedures designed to verify the votes. In his new essay, Damned Lies, Jeremy Waldron helps dissect and categorize lies. In the process, he illustrates the complex relationship lawyers have to truth. If Trump damaged democracy with his disregard for facts, what about the lawyers by his side? Should they be disciplined or simply condemned for their part? Waldron does not answer these questions but he provides those of us who are interested in them with a sophisticated way to approach the problem.
Waldron’s essay seeks to answer the central question, what makes a lie particularly toxic in public life. What, in his words, makes it a “damned lie”? Of course, there is a legal question lurking beneath his excursion into moral philosophy: What sort of lies should our legal system tolerate? Do lawyers have a greater obligation to the truth than others? When, if ever, is it okay for lawyers to lie? Continue reading "Liar Up"
Law and (Which?) Entrepreneurship
Magnus Henrekson and Tino Sanandaji, Measuring Entrepreneurship: Do Established Metrics Capture Schumpeterian Entrepreneurship?, 44 Entrepreneurship Theory & Prac. 733 (2020).
We often hear that entrepreneurship is important to the economy. But what exactly is “entrepreneurship”? There is a broad and growing literature connecting institutions with entrepreneurship in the fields of law, economics, finance, and business generally. Legal scholars in this field typically focus on the role of “law” and treat “entrepreneurship” as a taken-for-granted concept that does not need any discussion. Yet, it is important to recognize that researchers in the broader non-legal literature on the relationship between institutions and entrepreneurship have been struggling to define and measure “entrepreneurship.” Empirical research that measures entrepreneurship inaccurately may lead to flawed conclusions including legal policy recommendations.
In their article, Measuring Entrepreneurship: Do Established Metrics Capture Schumpeterian Entrepreneurship?, Henrekson and Sanandaji evaluate different country-level measures of entrepreneurship and find that virtually all the widely-used metrics fail to capture high-impact Schumpeterian entrepreneurship – the kind of entrepreneurship that policymakers hope for. Continue reading "Law and (Which?) Entrepreneurship"
Gendered Culture and Pricing Bias
Renée B. Adams, Roman Kräussl, Marco A. Navone, and Patrick Verwijmeren, Gendered Prices (Dec. 10, 2020), available at SSRN.
We know prices are neither gender neutral nor race neutral. Prices reflect not only factors such as quality but also bias. Thirty years ago, Ian Ayers demonstrated, in a pioneering study, that Chicago retail car dealerships systematically offered substantially better prices on identical cars to white men than they did to both Black men and women and to white women.
In a more recent study, Tamar Kricheli-Katz and Tali Regev showed that women sellers on eBay obtained a smaller number of bids and lower final prices in auctions for both used and new products. While the former study addressed the prices women buyers paid, the latter study addressed the prices women sellers were paid. These studies were conducted nearly 25 years apart from one another, and examined different merchandise. However, in both cases (and in many other similar studies) gender had an impact on the prices, and men got better deals than women as both buyers and sellers.
Gendered Prices, a new study by Adams, Kräussl, Navone and Verwijmeren explores gender bias in the pricing of artwork. The authors examined a sample of 1.9 million transactions conducted at more than 68,000 auctions for 69,189 individual artists in 49 countries from 1970 to 2016. This sample was taken from Blouin Art Sales Index, the largest database of artwork, and was limited to paintings only. This sample showed that auction prices for paintings by female artists were significantly lower than prices for paintings by male artists. The mean transaction price for male artists was around US $50,480, while the mean price for female artists was only US $29,235, meaning that the discount for paintings by women was 42.1%. When excluding mega-transactions (above one million dollars), the discount dropped from 33.1% in the 1970s to below 22% after 2000 (and to 8.4% after 2010). Continue reading "Gendered Culture and Pricing Bias"
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