Repackaging Normativity

Triantafyllos Gkouvas, The Metric Approach to Legal Normativity, Unpacking Normativity (2018).

The subject of legal normativity has attracted a great deal of attention recently. The collection in which Tria Gkouvas’s chapter appears does much to display the variety of perspectives, themes and issues that inform the current debate. Or, perhaps, current debates, given that a number of positions being expounded here and in other works on normativity over recent years tend to fix the normativity debate with a particular character prior to making a contribution to it. Gkouvas’s chapter is particularly stimulating in seeking to develop an approach that cuts across different perspectives and joins together different roles of normativity in what he presents as a “standard of normative robustness.” (P. 17.)

This approach is styled the “metric approach” precisely because it can be used to measure the normative robustness of quite different legal theories. It offers to do this by concentrating on “the Nexus space of reason-giving facts,” (P. 18) in which the different roles of action-guidance, evaluation of action, and explanation of action cohere in a single fact (Pp. 18-19). Gkouvas’s notion of Nexus is borrowed from Joseph Raz’s use of the term in From Normativity to Responsibility to indicate the connection between the normative force of a fact and its explanatory potential in a normative/explanatory nexus. Gkouvas amplifies this nexus as covering the three normative roles just mentioned of guidance, evaluation, and explanation; corresponding to “three distinct component functions (metaphysical, evaluative and explanatory).” (P. 18.) Continue reading "Repackaging Normativity"

Bearing Witness as Researchers in the Pursuit of Equality

Kathryn Gillespie, The Cow with Eartag #1389 (2018).

Most academics who care about substantive equality accept that ideologies and attendant violence about which lives matter in society and which lives don’t cause devastation and trauma to individuals and communities. Many of us write about such suffering in our work so that others can learn about it and push for law reform and social change. But how exactly we as academics can bear witness to this suffering in the course of our equality-inspired, change-seeking research and writing is not a frequent point of discussion. But it should be, especially when the suffering we write about is chronic, of staggering magnitude, largely incommunicable, and sanctioned by law.

Anyone looking for an excellent example of how to bear witness to ongoing violence as a researcher—and learning along the way about the structural violence inherent to the dairy industry—should pick up Kathryn Gillespie’s The Cow with Eartag #1389. In it, feminist and critical animal studies geographer Gillespie eloquently bears witness to the massive yet mundane suffering engendered by the human appropriation of cows’ milk. Gillespie deeply cares about the plight of all farmed animals and the vulnerable humans exploited in agriculture, but has chosen to focus her critical lens on the dairy industry. She aptly defends her focus noting that milk is a substance produced by an industry whose workings “is obscured from public knowledge”, but is a product so normalized for humans to drink that “many well-educated and thoughtful people” are “surprised to discover that a cow has to be regularly impregnated to produce milk” (P. 14). Continue reading "Bearing Witness as Researchers in the Pursuit of Equality"

Empathy, Democracy, and the Rule of Law

Kiel Brennan-Marquez & Stephen E. Henderson, Artificial Intelligence and Role-Reversible Judgment, __ J. of Crim. L. and Criminology __ (forthcoming), available at SSRN.

Are some types of robotic judging so troubling that they simply should not occur? In Artificial Intelligence and Role-Reversible Judgment, Kiel Brennan-Marquez and Stephen E. Henderson say yes, confronting an increasingly urgent question. They illuminate dangers inherent in the automation of judgment, rooting their analysis in a deep understanding of classic jurisprudence on the rule of law.

Automation and standardization via software and data have become a regulative ideal for many legal scholars. The more bias and arbitrariness emerge in legal systems, the more their would-be perfecters seek the pristine clarity of rules so clear and detailed that they can specify the circumstances of their own application. The end-point here would be a robotic judge, pre-programmed (and updated via machine learning) to apply the law to any situation that may emerge, calculating optimal penalties and awards via some all-commensurating logic of maximized social welfare.

Too many “algorithmic accountability” reformers, meanwhile, are in general either unaware of this grand vision of a legal singularity, or acquiescent in it. They want to use better data to inform legal automation, and to audit it for bias. The more foundational question is less often asked: Does the robo-judge not simply present problems of faulty algorithms and biased or inaccurate data, but something more fundamental—a challenge to human dignity? Continue reading "Empathy, Democracy, and the Rule of Law"

Is Personal Jurisdiction Constitutionally Self-Enacting?

A. Benjamin Spencer, The Territorial Reach of Federal Courts, __ Fla. L. Rev. __ (forthcoming 2019), available at SSRN.

Federal Rule of Civil Procedure 4(k) generally limits the scope of a federal district court’s personal jurisdiction to that of the state in which it sits. We have this paralleling of state- and federal-court personal jurisdiction despite the fact that the Fourteenth Amendment limits only the states’ exercise of personal jurisdiction while it is the Fifth Amendment that presumptively regulates the federal exercise of that same power. Building upon this distinction, Benjamin Spencer, in his dual role as a preeminent procedural scholar and member of the Judicial Conference Advisory Committee on Civil Rules, argues that we should decouple federal and state court personal jurisdiction doctrine. You should give this short, but thought-provoking, essay a read not only because Spencer is one of the top proceduralists writing today, but because you could well be working with his revised Rule 4(k) soon.

Spencer defends a radical redrafting of Rule 4(k), suggesting as follows: “All process other than a subpoena may be served anywhere within the territorial limits of United States. Nothing in these Rules limits the personal jurisdiction of a district court.” Under his proposal, federal courts would take personal jurisdiction by engaging in an International Shoe analysis that focuses upon contacts with the nation as a whole—not merely contacts with the state in which the federal court sits, as is the case under current practice. Continue reading "Is Personal Jurisdiction Constitutionally Self-Enacting?"

Rightless Remedies

Stephen A. Smith, Rights-Threats, Wrongs and Injustices: The Common Law Causes of Action, 27 N.Z.U.L. Rev. 1033 (2017), available at SSRN.

It is a familiar quip that a right without a remedy is no right at all. A recent article by Stephen A. Smith shows, however, that there is such a thing as a remedy with no right—something I might call a “rightless remedy.” In Rights-Threats, Wrongs and Injustices: The Common Law Causes of Action, Smith explicates a category of judicial orders (i.e., remedies) that are not tied to any underlying legal right or wrong. In doing so, Smith tells us something important about both rights and remedies.

To appreciate Smith’s insights, it is first important to understand his taxonomy. The phrase “cause of action” can mean many things, but to Smith and other scholars writing in this area, a “cause of action” is a set of facts that justify a judicially-administered remedy. Understood as such, a cause of action is not necessarily co-extensive with substantive law. The substantive law contains instructions for citizens (e.g., “do not hit others,”) but cause-of-action law (sometimes called “remedial law”) contains instructions for courts (e.g. “if a person proves to you that she has been hit, order the hitter to pay her damages”). Causes of action will usually track the substantive law closely, and for that reason we often take it for granted that, where a wrong has been committed, a court will issue a remedy. But there are certainly situations in which remedial law does not authorize judicial intervention, even when a wrong has been committed (such as, for example, when a court declines to issue an injunction because it will impose an undue hardship on the defendant). Far less common (or even ignored until Smith showed otherwise) are situations in which a remedy issues where no wrong has been committed—but that is an issue we will get to in a bit. Continue reading "Rightless Remedies"

The Power of Police Unions

  • Stephen Rushin, Police Disciplinary Appeals, 167 U. Pa. L. Rev. __ (forthcoming, 2019), available at SSRN.
  • Dhammika Dharmapala, Richard H. McAdams, and John Rappaport, Collective Bargaining and Police Misconduct, available at SSRN.

While riding with officers, conducting interviews and coding policies for my forthcoming book, Camera Power: Proof, Policing, Privacy and Audiovisual Big Data, I was struck by the influence of police unions—or lack of a strong union—in shaping body camera recording policies and limits on using the video to evaluate and discipline officers. Delving into the literature on police unions, I was impressed to read the work of prolific professors using innovative methods to systematically collect and analyze data on the influence of police unions. I would like to spotlight two recent important empirical studies on police unions.

Analyzing a large dataset of police union contracts, Stephen Rushin’s latest article illuminates how collectively bargained protections in the police disciplinary appeals process can impede efforts to address potentially problematic officers. The findings are particularly disturbing and compelling when read in conjunction with an important new study by Dhammika Dharmapala, Richard H. McAdams and John Rappaport. This dream team of interdisciplinary scholars offers the first quasi-experimental evidence that conferring collective bargaining rights on sheriffs’ deputies is associated with about a 45% increase in violent incidents. Continue reading "The Power of Police Unions"

Understanding ICOs: In Code We (Shouldn’t) Trust?

Shaanan Cohney, David A. Hoffman, Jeremy Sklaroff, & David A. Wishnick, Coin-Operated Capitalism, Columbia L. Rev. (forthcoming 2019), available at SSRN.

So-called “initial coin offerings,” or ICOs, are the new IPOs. In the last two years, ICOs became one of the hottest new investment opportunities in the rapidly growing market for crypto-assets—and one of the hottest topics of discussion among policy-makers and capital markets experts. Just like everything else that belongs in the general category of “fintech,” ICOs are fascinating and mysterious to most of us, legal scholars. What exactly are these “tokens” or “coins” that are being sold to investors in lieu of the traditional shares and bonds? Are they investment contracts, products, or club membership cards? Are they money? Should they be regulated, and under what set of rules? These are just some of the questions the acronym “ICO” triggers in the lawyer’s restless mind.

In a new article, cleverly titled Coin-Operated Capitalism, a team of authors with varying expertise (including a computer scientist and a scholar of contract law) explain ICOs by using an example of Coca-Cola raising money for its network of vending machines by issuing tokens to be used for purchasing cans of coke from those machines. Unlike the imaginary Coca-Cola project, however, ICOs involve purely digital “tokens” and “machines” that reside on blockchains and are embodied in software codes. As the authors explain, the key forms of this software—known as “smart contracts”—are encoded “if-X-then-Y” rules that govern the functionality of specific tokens sold in individual ICOs. To many ICO (and, more generally, crypto-tech) enthusiasts, this fully automated functioning of the issuer-investor relationship is a great virtue: by eliminating the need to trust humans, smart contracts supposedly eliminate the possibility of fraud or other misbehavior by company managers and insiders enjoying significant informational advantages over outside investors. In this techno-utopian narrative, there should be no need for legally mandated disclosures, regulatory oversight, or court enforcement of investors’ rights: the software code would simply deliver the results intended by the contracting parties, in an impeccably efficient and transparent manner. Continue reading "Understanding ICOs: In Code We (Shouldn’t) Trust?"

An Empirical Assessment of the Likely Impact of the International Provisions of the TCJA

Dhammika Dharmapala, The Consequences of the TCJA’s International Provisions: Lessons from Existing Research, CESifo Working Paper No. 7249 (Oct. 31, 2018), available at SSRN.

The international provisions of the Internal Revenue Code are among its least well understood. Public Law 115-97, known informally as the “Tax Cut and Jobs Act” (TCJA), made significant changes to those provisions. One of the best evidence-based articles exploring the likely effects of those changes is Dhammika DharmapalaThe Consequences of the TCJA’s International Provisions: Lessons from Existing Research, CESifo Working Paper No. 7249, a second version of which was posted on SSRN in late October. In it, Dharmapala reviews the existing econometric literature and uses that literature to project the likely long-term consequences of those changes. Anyone interested in international tax policy will benefit from working through his evidence and conclusions.

Although Dharmapala initially defines his task in broad terms—“to review the most important of these new international tax provisions and to discuss their potential consequences, drawing on existing scholarly literature”—he ultimately narrows his focus to ownership distortions, distortions that implicate what is known in the literature as “capital ownership neutrality.” He does not, for example, explore generally the likely effects of TCJA on incentives to offshore business operations or incentives to income-shift within a consolidated group. Instead, he notes that pre-TCJA, (1) “US MNCs [multinational corporations] [were] disfavored as vehicles for global portfolio investment” and (2) “the US tax imposed upon the repatriation of dividends created an incentive to delay repatriation, and led to the accumulation of cash holdings…in foreign affiliates,” and asks whether the new changes are likely to ameliorate or exacerbate these distortions. Continue reading "An Empirical Assessment of the Likely Impact of the International Provisions of the TCJA"

Data Processing Detective Story

Caleb Nelson, “Standing” and Remedial Rights in Administrative Law, 105 Va. L. Rev. __ (forthcoming 2019), available at SSRN.

After the slog of teaching constitutional standing—Lujan, Massachusetts, Freedom from Religion, Akins, Spokeo, and the rest of that crowd—it is always a relief to get to statutory standing. “Here’s the deal,” I say to the class, “statutory standing is just a matter of finding a statutory right of action to challenge agency action. You can find that ticket to judicial review in many enabling acts. But the most important one for our purposes is the APA’s right of action established by 5 U.S.C. §§ 701-706. Section 702 says you can use that right of action so long as you have ‘suffer[ed] legal wrong because of agency action, or [have been] adversely affected or aggrieved by agency action within the meaning of a relevant statute.’ The Supreme Court has told us that a plaintiff can qualify under the ‘adversely affected or aggrieved’ prong of § 702 by claiming that agency action has harmed interests that ‘arguably’ fall within the ‘zone of interests’ protected by a statute or constitutional provision that the plaintiff asserts the agency action has violated. And the Supreme Court has also told us, a whole bunch of times, that this arguably-within-the-zone test for invoking the APA’s right of action is super-easy to satisfy.”

Thanks to reading Caleb Nelson’s splendid article, “Standing” and Remedial Rights in Administrative Law, I see that things are not so simple as I thought. The major project of Professor Nelson’s article is to explain how the consensus understanding of the expansive reach of remedial rights under the APA evolved from a profound misreading of the source of the arguably-within-the-zone test, Justice Douglas’s opinion for the Supreme Court in Association of Data Processing Service Organizations v. Camp. The upshot of Professor Nelson’s analysis is that Data Processing, properly understood, does not stand for the proposition that satisfying the arguably-within-the-zone test is enough for a plaintiff with constitutional standing to invoke the APA’s right of action. To get to this conclusion, Professor Nelson takes a deep dive into the evolution of standing doctrine during the middle half of the twentieth century. The result is a terrifically lucid and engaging account, filled with telling details—notably including Professor Nelson’s recounting, based on both published opinions and internal correspondence, of the doctrinal duel between Justice Douglas and Justice Brennan over the framework for standing in Data Processing and its companion case Barlow v. Collins. (Pp. 37-52.) Continue reading "Data Processing Detective Story"

A Fresh Look at the Workplace Rules for Franchisors

Andrew Elmore, Franchise Regulation for the Fissured Economy, 86 Geo. Wash. L. Rev. 59 (2018).

An often forgotten area of employment law is the role played by millions of employees working for franchise stores across the country. In his new paper, Franchise Regulation for the Fissured Economy, Professor Andrew Elmore tackles this important area of the workplace, addressing the current standards that govern these workers. Professor Elmore notes the very serious problem of noncompliance in this area with basic employment law, and explains some of the causes that have resulted in this problem.

The franchisee/franchisor relationship is relatively straightforward, as franchisors generally license trademarks to the franchisees. Problematically, in the workplace context, the courts (as a general matter) have failed to consider franchisees as joint employers, which has done little to discourage individual stores from taking unlawful employment actions. While the existing scholarship has focused on the problem of addressing employment law issues arising from subcontractors under the joint employer doctrine, Professor Elmore’s piece takes a different approach. His work proposes that, with respect to franchisors, we should not look to the traditional joint employer test to enhance compliance with employment law. This test does not fit neatly with the construct of most franchise relationships, as the definition of control is currently applied far too narrowly to reach many of the individual stores. In light of this consideration, liability standards must be considered that identify the more unique role franchisors play in the current economy. Continue reading "A Fresh Look at the Workplace Rules for Franchisors"

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