Family Courts as Criminal Courts: A Story of Origins

Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN.

The question of the relationship between criminal law and family law has been amply explored in recent years, the seemingly neat separation between the fields coming under repeated challenge.1 Scholars have tackled the question from a variety of different perspectives: showing us how criminal law can function as family law for a specific section of the population, obliterating in the process basic family law assumptions about privacy and autonomy;2 or demonstrating the ways in which family law and criminal law have always operated in tandem to enforce specific sexual mores or ideals of intimacy.3 In Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, Elisabeth Katz contributes to this body of scholarship in a way that has the potential to unmoor contemporary assumptions about the civil nature of family court jurisdiction.

In this carefully researched and thoughtfully written piece of legal history, Katz concentrates on the history of family courts and their jurisdiction especially in the first half of the twentieth century. Adding a plethora of original sources to the historical literature on domestic relations courts,4 Katz highlights aspects of this history that had perhaps gone underappreciated inside family law.5 At their inception, some of the most influential domestic relations courts in the country focused heavily on the criminal prosecution of nonsupport cases and no one at the turn of the twentieth century would have thought of domestic relations courts as anything other than a branch of the criminal courts. More importantly, Katz argues that criminal jurisdiction over non-support cases continued to be at the core of family courts’ expansive jurisdiction, even as states strategically recharacterized the nature of these courts as civil in order to give judges more flexibility without the necessity of criminal law protections. Continue reading "Family Courts as Criminal Courts: A Story of Origins"

Exclusionary Equality: France’s State-Feminism and Its Other Women

Darren Rosenblum, Sex Quotas and Burkini Bans92 Tul. L. Rev. 469 (2017).

Feminism in the Global North began as a critical social movement emphasizing the societal oppression and exclusion of women and the inadequacies of the patriarchal state. Since the 1960s, it has evolved into a fragmented constellation of groups and theoretical positions often with deep divergences and seemingly intractable disagreements. One of these disagreements has been about feminism’s relationship to the state. Some feminists have traditionally been uncomfortable with and wary of institutional political power. And for good reason. Alliances with a patriarchal state produces only limited success with considerable costs. Other feminists have taken the position that we must take what we can get. In order to improve the lives of women, we must engage the state—become insiders and change the structure from within.

Regardless of how feminists orient to the state, most commonly recognize that state-alliances invariably result in mixed results often with unintended and undesired consequences. Often the gains benefit elite women at the expense of minorities. Furthermore, engagement with the state and the use of state power can present problems if one takes the position that generally feminism is a politics and a project that promotes liberation and equality. For example, the critical feminist literature on mass incarceration points out that the use of criminal law and state apparatus has resulted in the disproportionate incarceration of men of color. This has resulted in serious consequence for women by destroying many families and communities of color. Furthermore, gender neutral applications of criminal law have sometimes led to the policing of women themselves.1

Darren Rosenblum’s essay, Sex Quotas and Burkini Bans, is part of this critical literature raising important questions about feminist alliances with and uses of state power in France. Rosenblum’s article adds to the literature by exploring state uses of and, indeed, promulgation of a “state feminism.” Rosenblum traces the feminist movement for equal political representation (Parité). With the passage of Parité giving women a 50% quota, the state absorbed the “feminist interest in sex difference and women’s equality” making it a core state value. And then, as Rosenblum shows, these ideas “disappear in plain sight.” (P. 470.) The state, having incorporated a feminist position on equality, used it to exclude certain categories of women. Continue reading "Exclusionary Equality: France’s State-Feminism and Its Other Women"

Jotwell Winter Break 2018

Jotwell will be taking a short Winter break. Jotting should resume on Monday, Jan 7, 2019.

Happy Holidays! Thank you for reading, and for your support.

PS. Jotwell carries no advertising, so we would very much appreciate if you could make a small holiday donation. The University of Miami School of Law is Jotwell’s host and main supporter, but having tangible signs that our readers value us is important. Even a few dollars can matter a great deal. Thanks!  Continue reading "Jotwell Winter Break 2018"

Corporate Responsibility: The Duty to Rescue and Access to Medicine

Rebecca E. Wolitz, A Corporate Duty to Rescue: Biopharmaceutical Companies and Access to Medications, 94 Indiana L.J. __ (forthcoming 2019), available at SSRN.

For far too many Americans, prices of pharmaceutical medications pose a major threat to access and, ultimately, wellness. Indeed, drug costs in the United States pose a problem fraught with challenges, one that has led scholars to focus on achieving a lasting regulatory solution. None has been forthcoming. Given the intractability of the problem, creative solutions that go beyond attempting to devise the perfect recipe of governmental intervention are welcome additions to the legal scholarship. In this vein, a particularly creative new article seeks to investigate whether biopharmaceutical companies owe an ethical duty to provide their medications to those who cannot afford them.

In A Corporate Duty to Rescue: Biopharmaceutical Companies and Access to Medications, Rebecca Wolitz grapples with this question. In her piece, Professor Wolitz presents a complete and critical analysis of the structure, enforceability, and workability of a “corporate duty to rescue” (CDTR). Defining a CDTR as the “application of a moral duty to rescue to for-profit companies” regarding access to their products, Wolitz’s analysis is significant, kicking off a conversation that should precede any “self-regulatory changes [corporations] justifiably could be urged to implement.” Indeed, as she notes, “a CDTR is particularly interesting as it offers a moral foundation for corporate self-regulation.” Continue reading "Corporate Responsibility: The Duty to Rescue and Access to Medicine"

Practice Makes Perfect

Approximately four years ago, the Federal Advisory Committee on Civil Rules established a subcommittee to reform Federal Rule of Civil Procedure 23, the class action rule. The subcommittee engaged in a meticulous review of various class action practices, focusing on such controversial issues as cy pres awards, bad faith objectors, and class action settlements. The subcommittee’s work resulted in the Advisory Committee adopting a package of amendments to Rule 23, which went into effect on December 1, 2018. A good overview of the amendments can be found here.

Anticipating passage of these amendments, the Bolch Judicial Institute at Duke Law School assembled an all-star team of class action practitioners and experts to draft a compilation of “guidelines and best practices.” Because the amendments “codify emerging or best practices of courts,” the goal of the publication is to “add detail to the general guidance provided in the amended rule.” The publication has all the attributes of a great resource—it is concise while remaining crystal clear. Continue reading "Practice Makes Perfect"

Of Constitutions and Concertos

Kevin Toh, Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation, in Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Lisa Crawford, Patrick Emerton, & Dale Smith, eds., 2018), available at SSRN.

Kevin Toh’s Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation offers a fresh and lucid discussion of the relationship between constitutional interpretation and musical performance. Toh is by no means the first scholar to have observed the connection between the two pursuits: Jerome Frank, Richard Posner, Sanford Levinson and Jack Balkin, and others have noted and analyzed the shared nature of the challenges that judges and musicians confront. But Toh’s article, written in honor of the Australian philosopher Jeff Goldsworthy, offers a welcome contribution to this intriguing line of inquiry, mining the music-law analogy for rich and revealing insights about the values of authenticity and fidelity as they apply to both of these interpretive endeavors.

Toh begins his discussion by highlighting an oft-analyzed issue within the philosophy of music—namely, that of the “ontological status” of musical works (P. 3.) When we talk about songs, sonatas, symphonies, and the like, what exactly are the objects to which we refer? Toh dismisses the possibility that a musical work is equivalent to the physical score that demarcates it. (Scores, after all, can be annotated, shredded, or left at home, and that is hardly true as to a “cantata” or “concerto.”) He also rejects the possibility that a musical work equates to a “score-type”—an abstract representation of the score’s particular instructions (P. 3.) Score-types often fail to specify important components of a musical performance, including components that are “important enough to be considered nonoptional if the performances are to count as performances of the relevant works” (P. 4.) And he further rejects the possibility of treating the musical work as equivalent to the “meaning” of the score, where the score’s meaning is understood to be the performance that the score as a whole prescribes (P. 5.) This conception too, Toh argues, fails to acknowledge the fundamental incompleteness of the score’s demands. Plodding through the notes on a page is not the same thing as performing the piece. A “true” and “authentic” version of the piece requires phrasings, voicings, dynamics, and other expressive elements that the score does not always convey. Continue reading "Of Constitutions and Concertos"

Should Courts Punish Government Officials for Contempt?

Nicholas R. Parrillo, The Endgame of Administrative Law:  Governmental Disobedience and the Judicial Contempt Power, 131 Harv. L. Rev. 1055 (2018).

What happens when a federal court issues a definitive order to a federal agency and the agency takes a how-many-divisions-does-the-Pope-have position in response? The answer that comes to mind is that the court can find the agency or its officials in civil or criminal contempt. But when is that finding available, how often is it used, what sanctions are attached to it, and what is their effect?

Nicholas Parrillo answers those questions in this comprehensive and carefully reasoned article. He collects (using a methodology described in an on-line appendix) all the records of federal court opinions “in which contempt against a federal agency was considered at all seriously” and all the records of district court docket sheets “in which a contempt motion was made…against a federal agency.” (P. 696.) After analyzing the results, Professor Parrillo concludes that while district courts are willing to issue contempt findings against federal agencies and officials, appellate courts almost invariably reverse any sanctions attached to such findings. But he also finds that the appellate courts reverse on case-specific grounds that do not challenge the authority of courts to impose sanctions for contempt, and that findings of contempt, even without sanctions, can operate effectively through a shaming mechanism. This article provides unique and valuable documentation about contempt, the “endgame of administrative law” and an obviously important element of our legal system. In addition, it contains major implications about the nature of the appellate process and about the normative force of law itself. Continue reading "Should Courts Punish Government Officials for Contempt?"

On Contract Law’s Increasing Distortionary Effect on Substantive Trade Secret Law and How to Stop It

Deepa Varadarajan, The Trade Secret-Contract Interface, 103 Iowa L. Rev. 1543 (2018).

Trade secret law and contract law have a complicated relationship. Every subject of commerce is extensively privately regulated by contracts. Intellectual property is distinct from other things of value, because it provides exclusive rights to its owners, and burdens others with corresponding responsibilities to others. Yet unlike trade secret’s intellectual property cousins copyright and trademark, there is no state or federal public register of trade secret interests to give potential infringers notice of a trade secret. What’s more, trade secret rights are relational, that is, liability for disclosure of a trade secret based on the context and expectations of the owner and the discloser. Therefore in trade secret law, unlike other intellectual property, contracts frequently are key evidence of the substance of the trade secret and the standard of behavior required for former employees to avoid infringing trade secrets.

In The Trade Secret-Contract Interface Professor Deepa Varadarajan argues contract law should not be used to undermine the policy reason the law grants companies intellectual property in trade secrets—to promote the progress of science and the useful arts. And yet, as she chronicles in the article, contract law has increasingly been used to do just that in an economy where some of the most valuable assets are trade secrets, including algorithms and databases. She writes: “Contracts’ centrality to trade secret law provides putative owners ample opportunity to define—and overstate—the boundaries of their trade secret rights, particularly to employees. Trade secret’s intersection with contract law poses particular threats to employee mobility—as employee non-competes and non-disclosure provisions can deter employees from starting new jobs and competition enterprises.” (P. 1547.) Continue reading "On Contract Law’s Increasing Distortionary Effect on Substantive Trade Secret Law and How to Stop It"

Plus Ça Change: A Century-Old Removal For Cause

Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691 (2018).

Lots of ink has been spilled over when Congress can give federal officials for-cause protection. One would think that a necessary antecedent to that discussion would be a determination of exactly what for-cause protection entails. What isinefficiency, neglect of duty, or malfeasance in office”? Yet no one knows; the debate over the permissibility of that restriction proceeds in blissful uncertainty as to its scope.

The reason no one knows is that (almost) no President has ever tried to fire someone for specified shortcomings amounting to “cause.” Until reading Professor Bamzai’s article, I would not have included the parenthetical “almost.” In the best-known instances of a president removing an official with for-cause protections—Shurtleff, Myers, Humphrey’s Executor, Wiener—the president did not claim cause existed; he took the position that cause was not necessary. It is often asserted, with only the tiniest of hedges, that no president has ever fired anyone after a hearing and for cause. But it turns out that at the very end of his term President Taft did just that. This article is the engaging account of that overlooked event. Continue reading "Plus Ça Change: A Century-Old Removal For Cause"

Fighting Jim Crow, Chapter 517

Thomas Ward Frampton, The Jim Crow Jury, 71 Vand. L. Rev. 1593 (2018), available at SSRN.

This article challenges the practice of non-unanimous criminal jury verdicts in Louisiana.  In a certain sense, the article was irrelevant, moot, by the time it saw print. This is not because, say, it was about an election that was already over, or made an argument that the courts had definitively rejected. Instead, the claim in this paper was so factually, legally and historically compelling that even in draft form it spurred concrete action; thanks in part to this paper, the policy it analyzed was both declared unconstitutional by a court, and repealed by the voters.

The article carefully recounts the history of the substantial elimination of African Americans from juries in Louisiana after Reconstruction. African Americans were, of course, a major part of the population of most of the former Confederate states, and amounted to a majority in Louisiana, Mississippi, and South Carolina. As Frederick Douglass wrote, “the liberties of the American people” depended on “the Jury-box” as well as “the Ballot-box,” if allowed to serve on juries, there was the danger that African American defendants would get a fair hearing, and that Whites (and White officials) accused of crimes against African Americans could be convicted. These were risks that White supremacists could not accept. Continue reading "Fighting Jim Crow, Chapter 517"

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