May 9, 2012 Kim BrooksEqualityJotwell
This engaging article is motivated by the complexity of framing (forget resolving) concepts of culture, by concerns that at least some feminists have become bogged down in their efforts to theorize veiling, clitoridectomy, and polygamy, among myriad other issues, and by a commitment to reasoning from law. In addition, deep into the piece, the authors explicitly state that they chose the direction of the piece in part to highlight that feminists tend to prioritize culture and leave unaddressed the role of economics in constructing tensions, identities, and concerns. Even if the article wasn’t so nicely written, even if it didn’t hold hints of something very interesting and hopeful, I would have been captivated by these motivations.
The authors drive the piece in surprising directions. Part I outlines feminism’s engagement with culture as concept. Part II situates a specific dispute (although in stylized form) that gives rise to a “clash” of cultures. Part III illustrates how the technique of conflict of laws assists in reasoning through the particular dispute. Part IV addresses possible objections and in Part V the authors argue that the approach delineated provides an intellectual style that might be adopted by feminists or cultural theorists.
Four reasons to read the piece… Continue reading "No Conflict About this Non-Essentialist Reading"
May 7, 2012 Bill BrattonCorporate LawJotwell
Chris Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century (Cambridge University Press 2012).
Every once in a while I read something and say to myself “this one’s a keeper” in the sense that it goes to the shelf to be drawn on again as an important source of knowledge. This book earned that status early in the read and it earned it again and again as the read went on. Indeed, I may be this book’s ideal reader for the very reason that I’m a domestic business law academic. To be sure, the book follows from and addresses a number of international law literatures and so addresses itself in the first instance to the international legal cohort, both to international law writ large and the group’s business and financial subset. But the learning curve is much steeper for me than for those primary addressees. Here we find the whole cast of international financial characters–bankers, cops, securities and insurance regulators, auditors, politicians, bureaucrats, technocrats, and their international and domestic organizations–all carefully and neatly laid out with their histories, structures, and outputs juxtaposed and categorized. My revelation lay not in the fact that I’d never heard of them (although I must admit that one or two were new to me), but in the fact that my institutional knowledge was full of holes, particularly as regards the book’s comparison to other, treaty-based international organizations.
When I picked up the book I wrote down three general observations, touchstone points to assist in evaluation. They are:
- Globalization implies downward regulatory pressure.
- Soft law will always disappoint you.
- Reputational sanctions are unreliable.
First, globalization and downward regulatory pressure. More particularly, what’s the interface between the book’s account and regulatory competition–race to the top, race to the bottom, law as product, or whatever you want to call it? In fact, there’s not much in the book about downward competitive pressure. It’s more a background factor that pops up on the screen when pertinent. Even so, I think it’s an important part of what the book is about. I think back fifteen years or so to a discourse that posed international regulatory competition as against international regulatory co-ordination. The competition side of the binary was heavily theorized where the co-ordination side was not. The competition side drew on economic theory going back to Tiebout and had negative things to say about co-ordination, which it cast as rent seeking. There wasn’t a whole lot on the coordination side. Since then international lawyers have been slowly filling in the picture. This is where I locate the book. For me it fills in the empty set with an exhaustive description of the international co-ordinative effort. Theory can now start over. Continue reading "Making the Case for Soft Law"
May 4, 2012 Paula MonopoliJotwellTrusts & Estates
Camille M. Davidson,
Mother’s Baby, Father’s Maybe!– Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father? 22
Colum. J. Gender & L. 531 (2011), a
vailable at SSRN.
One of the most important and interesting conversations among inheritance law scholars has been the role genetic connection should play in establishing parentage and rendering a nonmarital child eligible to inherit from her father. The advent of easy and reliable genetic testing has crystallized the issue and focused scholars on which paradigm we should adopt now that we no longer need “surrogate” rules in intestacy statutes, e.g., acknowledgement by a putative nonmarital father, to help establish whether a child is likely that man’s child. There is a spectrum in terms of potential paradigms, running from a purely genetic model at one end where a DNA test establishing paternity would make a nonmarital child eligible to inherit even if she had no relationship with her father to a purely functional approach where the father’s behavior and intent would be the linchpin of whether the child is eligible to inherit, regardless of her genetic connection. I would characterize the former model as a “child-centric” model where the interests of the nonmarital child trump that of the father and his other marital children since the nonmarital child does not have to rely on the father to take any affirmative action like acknowledgement in order for the child to be eligible to inherit.
In her recent article Mother’s Baby, Father’s Maybe!-Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father?, Camille Davidson argues for the adoption of such a child-centric model of establishing paternity in the area of inheritance law. She highlights some of the historical antecedents of our current patchwork of state laws on defining paternity. Davidson also adopts a comparative lens in evaluating how states should embrace the genetic connection between a nonmarital child and her father as dispositive of not only of paternity but of her eligibility to inherit from him. In so doing, Davidson makes a compelling argument for this approach and adds an important voice to the academic conversation in this area of inheritance law. Continue reading "Adopting a “Child-Centric” Model of Paternity for Nonmarital Children"
May 2, 2012 Joanna GrisingerJotwellLegal History
Kimberley S. Johnson’s recent article, “Racial Orders, Congress, and the Agricultural Welfare State, 1865-1940,” is part of a valuable turn evident in recent scholarship on governance in the twentieth century. Bringing together politics and race to understand agricultural policies and institutions, Johnson asks, “[w]hen does race matter; and how does race matter when thinking about the shaping of the American state?” (P. 144) The answer? Race has shaped agricultural policy in some surprising and not-so-surprising ways.
In her study of the “agricultural welfare state,” Johnson examines the shifting ways in which the federal government provided farmers with services and subsidies in the decades following the Civil War. Responding to scholarship centered on interest group relations and partisan politics, Johnson stresses the importance of considering the political machinations involved in agricultural policy in the specific historical context in which these programs were designed and implemented. She describes in detail the numerous agricultural programs that came out of Congress in the years before the New Deal, and examines how their design and implementation occurred against a backdrop of legalized white supremacy in the rural South. The segregated nature of Southern agriculture combined with the power of Southern Democrats in Congress meant that national agricultural programs reflected the assumptions and preferences of powerful southern interests in maintaining racial hierarchies and allowed local authorities significant discretion in the distribution of assistance. Although the federal government consistently acknowledged its role in protecting farmers from economic dislocation, racial calculations, she argues, destroyed early on any possibility that the federal government would establish universal agricultural benefits as a matter of right. Continue reading "The Jim Crow Foundations of Agricultural Governance"
Apr 30, 2012 Sergio J. CamposCourts Law
S. Todd Brown,
Specious Claims and Global Settlements, 42
U. Memphis L. Rev. (forthcoming 2012), available at
SSRN.
The late Richard Nagareda once noted that global settlements in mass tort litigation present a “Field of Dreams” problem – “if you build it, they will come.” In the movie, people came to the Iowa baseball field in the corn fields because it was “money they had, but peace they lacked.” The opposite is true in mass tort litigation. In most cases, multinational corporations and plaintiffs’ firms with large inventories of claims typically achieve peace through a global settlement resolving all of the victims’ claims. It is money that the individual victims lack, and it is why the victims consistently come in droves, many with claims that are specious at best.
In his excellent article Specious Claims and Global Settlements, Todd Brown examines three comprehensive settlements in mass tort litigation to identify the cause of the “Field of Dreams” problem. He contends at the outset that the problem is caused by more than adverse selection, in which asymmetries in information allow plaintiffs with dubious claims to try to collect. (P. 20.) Instead, Brown provocatively argues that the problem arises from how the parties define what a compensable claim is in negotiating the settlement, using the settlement to “supplant[] tort law with a negotiated grid for compensation.” (P. 23.) Brown shows that the parties negotiating the settlement define grids because they only care about the size of the settlement, not the distribution of the proceeds. But by failing to establish more accurate distribution procedures, global settlements allow a thousand specious claims to bloom. Continue reading "Striking Out Specious Claims in Mass Tort Global Settlements"
Apr 27, 2012 Christopher SloboginCriminal LawJotwell
William Stuntz, The Collapse of American Criminal Justice (Harvard University Press, 2011).
William Stuntz, who died last year, was the preeminent criminal procedure scholar of his generation. His early work on criminal procedure doctrine was breathtakingly insightful, providing deep explanations of the Court’s decisions and new ways of thinking about the law of search and seizure, interrogation, plea bargaining and sentencing. His recent book, The Collapse of American Criminal Justice, weaves together his earlier doctrinal perspectives with brilliant analysis of criminological data, legal and cultural history, and the sociology of criminal justice, all in an effort to explain why our criminal justice system suffers from unnecessary mass incarceration, horrendously long sentences, racially imbalanced charging and sentencing, and a host of other flaws.
Stuntz attributes the current state of affairs to a number of factors, not all of which are obvious. He is particularly bothered by the loss of local influence over crime policies. He argues that until the mid-twentieth century police, prosecutors, juries and judges were very responsive to the community and that, outside the South, this attention to local morés resulted in a relatively lenient, non-discriminatory punishment regime. Today, in contrast, police and prosecutors are more distant from their polity, most cases do not go to trial (making them invisible to the public), and when cases do go to trial juries and judges have much less flexibility in imposing punishment, all of which contributes to more punitive outcomes. Continue reading "Toward Real Criminal Justice"
Apr 25, 2012 Sonia LawrenceEqualityJotwell
Linda Greenhouse and Reva Siegel, Before (and After)
Roe v.
Wade: New Questions about Backlash, 120
Yale L.J. 2028 (2011), available at
SSRN.
Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?
This is delightfully, smugly, self-satisfying. It is neither analytic nor strategic. And when, inevitably it seems, our relatively open access to abortion (as Carol Sanger has called it, the “luxury of legality”) starts to be challenged, it might leave us rather less than prepared. Greenhouse and Siegel’s article illustrates how a slow burn, not the blast of Roe v. Wade, led to the bitter struggle over reproductive rights in the U.S. today. Continue reading "Womb as Wedge: What We Can Learn from Revisiting the Political History of the Abortion Controversy in the US"
Apr 23, 2012 Matt BodieJotwellWork Law
Citizens United remains in the public consciousness long past the normal half-life for a Supreme Court decision. The notion that “corporations are people” has become a punch line in a variety of contexts—proof of the absurdity of the Court’s opinion. While the decision itself simply freed corporations from the constraint of political action committees in their election-related spending, it has engendered continued outrage and cynicism at both the political process and corporations themselves. The fact that the opinion extended these rights to unions, as well, has received much less attention. Perhaps more importantly, the decision has ramifications for the future of corporate and union political activity that are yet to be fully developed. Two labor law scholars explore these ramifications in articles seeking to extend the principles of Citizens United to familiar labor law doctrines, with creative and thought-provoking results.
For Charlotte Garden, the Citizens United decision offers the opportunity to extend the argument she began in an early article: namely, that union speech deserves greater constitutional protection. In her Citizens, United piece, Garden uses the opinion as a springboard for reconsidering two significant restrictions on union speech: the prohibitions on union secondary activity and the objection rights of employees covered by union security clauses. She argues that the distinction between “public-issue” picketing and boycotts (by groups such as the Westboro Baptist Church) and “economic” picketing and boycotts (by unions) is vulnerable in light of Citizen United, which held that the corporation’s motive is irrelevant to First Amendment protection. Because both corporations and unions cannot be stopped from engaging in political speech, Garden suggests that union campaigns may be protected if they take on more public-interested oriented themes. And she also points out that since Citizens United overrode the concerns of objecting shareholders to corporate political speech, that opinion undercuts the protections for employees who object to paying union dues that fund political speech. Although acknowledging that the analogy is “not an exact one,” Garden argues that protecting union objectors but not shareholder objectors is a tough distinction to maintain, given that in both cases speech rights are pitted against administrative burdens, but with differing results. Continue reading "Labor Speech is Corporate Speech"
Apr 20, 2012 Gerry BeyerJotwellTrusts & Estates
Kristine Knaplund’s well-written and researched article, Synthetic Cells, Synthetic Life, and Inheritance, discusses the legal and regulatory implications of new advances in synthetic biology that may one day lead to the creation of synthetic human gametes or embryos that are made without the use of existing genetic materials. The article first discusses the current state of assisted reproduction in the United States and the various techniques that are currently available for individuals with fertility problems. Next the article examines the existing regulations that may apply synthetic gametes and either encourage or prohibit research in this area. Finally, the article tackles the question of who will be the legal parents of a child created using synthetic gametes.
Prof. Knaplund notes that assisted reproduction is “big business” in the United States, with the exchange of eggs (ova) alone being worth $4.5 billion in the United States. The use of in vitro fertilization, where the egg and sperm are joined in a Petri dish and later implanted in a woman’s uterus, was first successfully used in 1978 and since then over 3 million babies have been born worldwide using assisted reproduction technologies (“ART”). Cryopreservation (freezing) of sperm, ova and embryos is commonly used today and preimplantation genetic diagnosis is used to screen for certain genetic or chromosomal diseases. If a synthetic sperm or ovum were created, the user could select for genetic characteristics that are not present in the intended parents. Continue reading "Artificial life but real inheritance?"
Apr 18, 2012 Erin MurphyCriminal LawJotwell
Alexandra Natapoff,
Misdemeanors, 85 S. Cal. L. Rev. (2012) (forthcoming).
Mass incarceration is much in the news lately, and rightly so. With a prison population that surpasses that of the gulags during the reign of Stalin (not to mention the world’s highest incarceration rate — four times the average), it is fair to say that “[t]he scale and the brutality of our prisons … are the moral scandal of American life.” (Adam Gopnik, New Yorker, Jan. 30, 2012). And yet, Alexandra Natapoff’s new article, Misdemeanors, strikingly reminds us that there may still be some competition for that title. Prisoners may own the criminal justice system, but there is still plenty to be said about the millions of renters who spend just an evening or two in its company every year.
Gaining purchase on those transient offenders is no simple feat. Although there is respectable data about felony charges and dispositions in the United States, it is virtually impossible to discern what happens in low level courts. I know this to be true from my own experience: in 2009, I published an article titled Manufacturing Crime that attempted to document the vibrancy of charging what I termed “obstinacy offenses.” In focusing on crimes like “failure to appear,” “false statements,” and “dissuading a witness,” particularly at the state level, I tried to demonstrate that a new breed of process crime was emerging, one intended to penalize simple slights against the justice system itself rather than legitimate efforts to obstruct justice. In the course of researching that article, however, time and again I encountered a shocking dearth of information about minor offenses. At best, all I could marshal was anecdotal or small-scale empirical evidence from a single jurisdiction.
Professor Alexandra Natapoff, wrestling the same problem, comes out much farther ahead. She starts her article by observing that there are roughly ten times as many misdemeanor prosecutions per year than felony cases filed; in 2008, roughly 80% of the over 21 million criminal cases filed in state courts were for misdemeanor offenses. She adds that 13 million people cycle through local jails per year, and that roughly 60% of the jail population at any time are held pre-conviction. In the end, though, she is vexed by the same lack of information: she would like to report even a statistic as simple as how many misdemeanor convictions are entered each year (not to mention for what types of crimes, and carrying what sentences), but lamentably such data is lacking. Luckily, the object of her paper is less to document the exact nature of misdemeanor offenses than to present a compelling case that “petty” crimes deserve our care. Indeed, she argues that “[t]he casual attitude toward petty convictions in general…is exquisitely expressed by the fact that the criminal system often fails to count them.” Continue reading "The Other Carceral State"
