Category Archives: Jotwell
Jul 9, 2012 Allison TirresJotwellLegal History
Recently, thousands of people participated in the forty-seventh anniversary of the historic 1965 marches from Selma to Montgomery. Now, as in 1965, voting rights were front and center: marchers protested against the recent passage of restrictive voting laws in many states, arguing that such provisions disproportionately disenfranchise voters of color. This was familiar ground for civil rights organizers in the South. This year, however, there was a new theme: immigrant rights. Those marching joined in opposition to Alabama’s H.B. 56, which targets undocumented immigrants in the state. The tone, as recounted by Trymaine Lee for the Huffington Post, was one of solidarity: marchers commented on the shared struggle and shared aims of those of African, Asian and Latin American descent, of citizens and non-citizens.
Alabama is in a new phase of its own civil rights history, but this multiracial rights frontier itself is not new. The deep South now grapples with issues of inter-group coalition building that were at the forefront in California more than a half-century ago. In his impressive new book, The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978, Mark Brilliant demonstrates that California experienced the challenges and rewards of “multiracial civil rights making” starting in the 1940s. (p. 12.) He chronicles the post-World War II struggles for civil rights of African Americans, Asian Americans and Mexican Americans, as they attempted to dismantle segregation and legislate antidiscrimination. In its diverse population, California was not an outlier in the history of civil rights but rather the vanguard. Continue reading "Is Alabama the New California? Civil Rights History through a Multiracial Lens"
Jul 5, 2012 Eli WaldJotwellLegal Profession
Everyday Injustice is an empirical study of Latino and Latina attorneys. The book examines the lawyers’ cultural, socioeconomic and family backgrounds: it compares and contrasts their law school experiences, socialization into the profession, career paths and ideological and professional commitments with that of their non-Latino peers; it explores the intersection of racial, class, gender and professional identities; and it documents the political leanings, activities and political values of Latino and Latina attorneys. Everyday Justice investigates shared perceptions and experiences of negative stereotyping encountered by Latino and Latina attorneys as well as their sense of marginalization and professional isolation. It is a rich and revealing account of the professional lives of minority lawyers striving to overcome discrimination in a profession purporting to adhere to the highest standards of equality.
The book represents an important addition to the scholarship of the legal profession. As the profession continues to struggle, notwithstanding its increased diversity, with persistent under-representation of women and minority lawyers within its elite ranks, growing scholarly attention has been given to the experiences of gender, racial and class minorities. To date, however, insufficient attention has been paid to the experiences of the fastest growing ethnic minority group in the United States, Latinos and Latinas. Moreover, following recent US Supreme Court decisions that have eroded affirmative action policies, placed procedural limitations on Title VII litigation, and restricted avenues for recovery, some commentators have expressed concern that the Court’s emphasis on the impact of affirmative action on African-Americans and Caucasians, its focus on intentional past discrimination and its inattention to Latinos, and implicit discrimination might cause it to prematurely strike down affirmative action policies altogether. Exploring in great detail the professional lives of Latino lawyers, including their discriminatory experiences, Everyday Injustice is especially important and timely and provides a rich and detailed context against which the wisdom of affirmative action policies as well as other diversity measures may be evaluated on an informed basis. Continue reading "Mechanisms of Discrimination"
Jul 2, 2012 Janet WalkerCourts LawJotwell
It is surprising what you can learn by watching the next generation coming of age. In this way, lawyers in the United States can gain much from following the experiences of the Canadian legal community as it climbs the steep learning curve needed to formulate the parameters and protocols for complex litigation.
Civil litigation and the structure of the legal profession in Canada do not pretend to challenge American exceptionalism. There are important differences between the two legal systems. But they have enough in common that academics and others in the U.S. can gain useful insight into class actions practice by hearing how Canadians are currently struggling to meet the kinds of challenges that have long been the subject of debate in the U.S. In this fine article, Jasminka Kalajdzic explores a new subject, at least for Canadian lawyers: the special ethical concerns that arise for counsel in class actions. Continue reading "Ethical Lawyering in the Clientless World of Class Actions in Canada"
Jun 28, 2012 Marcia L. McCormickJotwellWork Law
Sandra F. Sperino,
Discrimination Statutes, The Common Law, and Proximate Cause, 2013
U. Illinois L. Rev. 1 (forthcoming 2013)
available at SSRN.
As courts increasingly import principles from common law torts into discrimination cases, Sandra Sperino’s new article, Discrimination Statutes, The Common Law, and Proximate Cause, is a welcome addition to a growing body of work pushing back against this trend. Her focus is on the Supreme Court’s recent forays into proximate cause in connection with federal employment statutes. Laying out the problems of the proximate cause doctrine and the features of statutory protections from employment discrimination, Sperino demonstrates that importing proximate cause is undesirable and an obstacle to enforcing Congress’ careful balance in enacting these statutes.
The article begins by describing what proximate cause is. Although the theoretical underpinnings of proximate cause are notoriously muddled, Sperino demonstrates that in a variety of ways, the doctrine appears to limit the reach of particular torts, depending on the type of tort at issue. As she notes, proximate cause is applied primarily in negligence actions in situations with multiple physical causes, where a potential plaintiff is far removed from the conduct of the defendant, or as a way to define the policy goals of the underlying cause of action. For intentional torts, proximate cause plays a much more limited role, in part because the actor’s state of mind makes the actor more blameworthy, and we are willing to extend liability farther. Continue reading "Dis-torting Discrimination Law"
Jun 27, 2012 JotwellJotwell
I’m pleased to announce that three distinguished scholars have agreed to become Jotwell Section Editors.
- Paul Horwitz of the University of Alabama School of Law has stepped up from Contributing Editor to Section Editor in the Constitutional Law section.
- Eli Wald of the University of Denver, Sturm College of Law, has joined the Legal Profession section as a Section Editor, replacing Tanina Rostain, who continues as a Contributing Editor.
- Leigh Osofsky of the University of Miami School of Law has joined the Tax section, replacing George Mundstock.
Jun 25, 2012 Gillian MetzgerAdministrative LawJotwell
In Deference and Dialogue in Administrative Law, Emily Meazell takes up the topic of serial administrative law litigation. These repeated rounds of challenges and remands, which Meazell finds are particularly prevalent in contexts of risk regulation, provide a new lens on court-agency relationships. Meazell closely reviews several instances of such litigation, spanning topics as diverse as endangered species, potential workplace carcinogens, and financial qualifications of nuclear plant operators. She argues that such close examination reveals a process of dialogue, with agencies ultimately (if not immediately) responding to judicial concerns and courts in turn acknowledging administrative responses.
According to Meazell, serial litigation merits attention because it demonstrates that judicial review may not function as we think it does. In particular, Meazell flags two features of serial litigation that deserve particular note. The first is that agencies frequently considered new information and evidence on remand, even though that might entail greater effort and new rounds of notice and comment. She argues that serial litigation thus can provide an opportunity for agencies to refine their analyses and gain greater expertise over time. The second is that, despite their initial sometimes stern rejections of agency determinations, courts often ultimately took quite a deferential stance. From this Meazell concludes that, when viewed over the long lifetime of some of this litigation, hard look review resembles more the soft look of constitutional rationality review than the more searching scrutiny administrative law cases and scholarship claim it to be. Continue reading "Serial Litigation in Administrative Law: What Can Repeat Cases Tell Us About Judicial Review?"
Jun 21, 2012 Cary FedermanJotwellJurisprudence
The law, Stanley Fish has written, “wishes to have a formal existence.” . By formal, Fish meant self-contained, autonomous, and self-declaring. In other words, the law wants to deny license to the interpreters of the law to seek recourse outside the law, to the tenets of philosophy and psychology, and to the facts of social scientific research. Of course, the law does not, because it cannot, succeed in preventing lawyers, or those from other disciplines, from rendering judgments about psychological processes or behavior. Tort law relies on economics and economics relies either on moral philosophy or psychology to ground its understanding of human behavior. The same is true for criminal law, and it is especially true in insanity cases. What the law wants – if it is acceptable to speak of the law without subjects but with intent – is to control the production of legal meaning.
Janice Nadler and Mary Hunter-McDonnell have written a provocative and insightful essay that explores the limits of the law’s formalism by focusing on how non-lawyers actually perceive guilt and assign blame. They are less interested in saying that certain people, contrary to the law’s instructions in criminal trials, combine assessments of guilt with perceptions of bad character. Rather, they say that to be in a position of judgment over another requires that one’s mental processes leap over the law’s formalism and merge guilt with character assessment. Indeed, they go further and suggest that any character information that jurors have which they perceive to be negative influences the corresponding interpretation of the action under review. If these studies can be replicated over time (and Nadler and McDonnell cite other literature to this effect), then policymakers need to address the implications of this study. Continue reading "Judging Guilt by the Content of their Character"
Jun 18, 2012 Ilya SominConstitutional LawJotwell
Logan Everett Sawyer III,
Creating Hammer v. Dagenhart, Wm. & Mary Bill Rts. J. (forthcoming)
available at SSRN.
The Supreme Court’s decision in Hammer v. Dagenhart, 247 U.S. 251 (1918) is one of the most reviled judicial rulings in American history. The ruling struck down a federal law banning the interstate transportation of goods produced in factories employing child labor, holding that it exceeded Congress’ authority under the Commerce Clause. Right from the start, critics denounced Hammer as an unprincipled decision with awful real-world consequences, an attempt to legislate “laissez-faire” ideology form the bench. To this day, the case is often invoked to discredit efforts to enforce limits on the commerce power. Several critics have recently used analogies to Hammer to attack the case challenging the individual health insurance purchase mandate.
Logan Sawyer’s excellent article, Creating Hammer v. Dagenhart, is an important challenge to the conventional wisdom about Hammer. Sawyer questions the long-dominant view that the ruling lacked a basis in precedent, and demonstrates convincingly that it was not the product of “laissez-faire” thinking. Continue reading "Federalism and Child Labor Revisited"
Jun 14, 2012 Chris BuccafuscoIntellectual Property LawJotwell
Last semester, I taught Comparative Intellectual Property Law in London, and I enjoyed the opportunity to think about different ways of structuring IP regimes. One of the more interesting differences is the use of jury trials in U.S.intellectual property litigation. Other countries are much less likely to have juries pass on such questions as the obviousness of an invention, the confusion created by different trademarks, or the similarity of two copyrighted works.
Whether juries are capable of making these determinations is ultimately an empirical question, and it is one that Jamie Lund from St. Mary’s University School of Law has sought to answer. Her recently posted paper on the “lay listener” test in music composition copyright cases suggests that our trust in juries may be poorly placed. I like her article, An Empirical Examination of the Lay Listener Test in Music Composition Copyright Infringement, lots. Continue reading "The Same Old Song?"
Jun 11, 2012 Ruthann RobsonEqualityJotwell
Nina W. Chernoff,
Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, Hastings L.J. (forthcoming 2012),
available on SSRN.
Americans know that there is something wrong with a guilty verdict rendered by “an all-white jury.” But translating that something into a constitutional issue, never mind a constitutional right, is not straightforward. Indeed, it has become downright complicated and, as Nina Chernoff argues, totally wrong.
Often, the first impulse when faced with the “all white jury” problem is to conceptualize the problem as one of equality. It seems discriminatory–unequal–when the person on trial is a member of a racial minority and is not “represented” on the jury. And indeed, this may violate the Equal Protection Clause of the Fourteenth Amendment. But not necessarily. The Equal Protection Clause, as presently construed in American constitutional doctrine, generally requires discriminatory intent. On the other hand, persons accused of crimes are afforded rights in the Bill of Rights that are not grounded in equality, but in fairness. The Framers of the Constitution, most of whom had committed the crime of treason during the Revolutionary War, were quite invested in fairness of process. For example, the Sixth Amendment guaranteeing an accused person assistance of counsel, confrontation of the witnesses against one, and a speedy and public trial. The Sixth Amendment also guarantees an “impartial jury.” In common parlance, this is a “jury one one’s peers.” In constitutional doctrine, it requires that the jury members be “drawn from a fair cross-section of the community.” Continue reading "Equality vs. Fairness"
