Jan 20, 2012 W.A. EdmundsonJotwellJurisprudence
Law is related both to morality and to convention. Differently related, surely. But how, exactly? That should be easier to explain if we could say how morality and convention are related to each other. But how easy is that?
Even as children, almost all of us understand the difference between saying that something is wrong, and saying that something “just isn’t done around here.” We would say that rape is wrong no matter how commonly it occurs; but we wouldn’t say that passing the decanter of port to the right was wrong even if we found out that, where we happened to be, doing so breaches a hallowed custom. Not wrong, strictly speaking, anyway, if we mean morally wrong. We all understand the difference, at least until we’re asked to explain it. (“And which kind are legal judgments?” –one might wonder: see answer below.) Continue reading "Law in the Neighborhood of Morality and Convention"
Jan 18, 2012 Joseph SeinerWork Law
In Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court substantially altered the pleading standard for civil litigants. To proceed with a civil claim, plaintiffs must now allege enough facts in the complaint to state a “plausible” claim for relief. In her article, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, Professor Suzette Malveaux superbly discusses how these recent cases have had a particularly dramatic impact on civil rights litigation. The impact of Iqbal on this area of the law is often overlooked, and she does an excellent job of explaining how the plausibility standard will impact these litigants.
In her Article, Professor Malveaux begins by critiquing the Iqbal case, highlighting some of the many problems with this decision. She notes that the Iqbal Court failed to consider the allegations in the case “as a whole,” that in practicality it is often difficult to separate out conclusory from nonconclusory assertions as the decision requires, and that the standard adopted by the Court appears to be a “probability test” rather than a plausibility inquiry. (P. 81-83.) She further accuses the Court of endorsing “judicial fact-finding” at the early stages of the proceedings. (P. 84.) Continue reading "Plausibility, Civil Rights, and Discovery"
Jan 13, 2012 Davina CooperEqualityJotwell
Amongst those who favor equality, there is, it might be said, a reluctance to confront its norms, premises and institutional tendencies. Yet, as a discourse and governance project, it is at least arguable that equality bears (or embraces) conventions of calculation, orderliness, categorization, legitimacy (as a precondition for equality or its result), boundaries and top-down assumptions of implementation and accomplishment. Unsurprisingly, critiques of equality, particularly more anarchist ones, tend to prefer difference, freedom, anti-identity politics, an aesthetic of non-equivalence, and open-ended non-institutional action.
Nail’s (2010) article, invested in building a new radical praxis, poses a way through and between these constructed polarities. While Nail doesn’t address equality directly, the issues he explores are hugely important to thinking more openly, and reflexively, about equality within the context of a radical change politics. At the heart of Thomas Nail’s article is the claim that radical politics needs to rebalance its focus; the almost exhaustive interest in cataloguing and pouring over what is wrong in the present needs to be supplemented more fully with greater interest in the social renewal posed by contemporary social experiments. Continue reading "Thinking About Post-Anarchism"
Jan 13, 2012 Edward RubinAdministrative Law
Rachel Barkow,
Insulating Agencies: Avoiding Capture Through Institutional Design, available at
SSRN.One of the most interesting areas of current administrative law and political science scholarship is the attention being devoted to the design of administrative agencies. Some of this work is empirical, and much of it is interdisciplinary, the two buzz words for contemporary cutting edge scholarship in this area, and so many other areas as well. But the real source of this work’s value and promise –and an underlying source of both its empirical and interdisciplinary character– is that it takes law seriously without viewing it from the judicial perspective. The political science scholarship, such as David Epstein & Sharyn O’Halloran, Delegating Powers (1999) and David Lewis, Presidents and the Politics of Agency Design (2003), has begun to free itself from the idea that only politics matters, and looks at the way that legal structures, having been generated by politics, affect the governmental process. The legal scholarship, such as Lisa Schultz Bressman & Robert Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599 (2010) and Jacob Gersen, Designing Agencies: Public Choice and Public Law, in Daniel Farber & Joseph O’Connell, eds., Research Handbook on Public Choice and Public Law (2010), has begun to free itself from the idea that law is to be defined, or at least perceived, through judicial decisions, and looks at the way that it shapes, and is shaped by, executive and legislative actors.
Rachel Barkow’s Insulating Agencies: Avoiding Capture Through Institutional Design, exemplifies this approach. Barkow’s topic is agency independence, but she does not address the tired question of whether such independence offends the Constitution, either in its entirety or in its details. Not only does she ignore the old chestnuts of judicial doctrine in this area, such as Myers v. U.S., 272 U.S. 52 (1926) and Humphrey’s Executor v. U.S., 295 U.S. 602 (1935) but she resolutely resists having anything to say about the recently decided bit of Roberts Court weirdness, Free Enterprise Fund v. PCAOB, 561 U.S. ____(2010) (the aptly nicknamed Peekaboo case). Instead of the children’s game of discussing constitutional limits on the administrative apparatus, her concern is the basic, and extremely serious question of why we want agencies to be independent of political control and how we achieve that goal. Continue reading "New Ideas for Agency Design"
Jan 11, 2012 Richard MoorheadJotwellLegal Profession
Christine Parker, Robert Rosen & Vibeke Lehmann Nielsen,
The Two Faces of Lawyers: Professional Ethics and Business Compliance With Regulation, 22
Georgetown Journal of Legal Ethics 201-248 (2009), available at
SSRN.
In the glamorous/murky/elite/financially rewarding world of commercial law is it clients or lawyers who are the bad guys? Put another way, does business corrupt law or do lawyers corrupt business? This is the question that lies at the heart of Parker, Rosen and Nielsen’s paper. Since the Savings and Loan scandals via WorldCom, Enron and latterly UK’s own Hackgate, corporate wrongdoing is often accompanied by the question, Where were the lawyers? And as Big Law turns increasingly, well, ‘big’, the “is law a business or a profession” question is posed increasingly nostalgically, usually with deliberate exaggeration and answered only with speculation rather than evidence. It is refreshing, therefore, to report on a study which is deals with the relationship between law and business empirically and with imagination which also deals with conceptually important questions.
Indeed, it is a central premise of professionalism that lawyers that they apply their specialist knowledge in the public interest. That is lawyers should act to encourage lawfulness on the part of their clients. They should encourage compliance. Professional ethics courses tend to concentrate on the idea that it is a Holmesian ‘bad man’ client that pushes lawyers into ethically grey areas. In particular that client (usually a businessman or criminal defendant–sometimes both) exploits a lawyer’s duty to zealously defend their client’s interests. Corporate clients, as sophisticated players, with deep pockets and repeat business on offer, are able, so the theory goes, to corrupt their lawyer’s into finding ways of playing the system to the client’s advantage. In simple terms the theory is lawyers good/clients + markets bad. And, of course, markets win. Parker and her colleagues ask the question: Is this an empirically testable proposition? And, once tested, is it an accurate proposition which is borne out by the evidence? For those of you with short attention spans the answers are yes it’s testable and no, it’s not an accurate proposition. Continue reading "Lawyers v. Businessmen: Where Are the Bad Men?"
Jan 9, 2012 Anne-Marie RhodesTrusts & Estates
In 2009, the Illinois Supreme Court upheld a decedent’s right to make a gift with a religious restriction, the “Jewish Clause.” Estate of Feinberg was extensively reported, bitterly litigated, and placed a white-hot spotlight on gifts with restrictive or discriminatory conditions attached. In Some Arguments Against Discriminatory Gifts and Trusts, 31 Oxford J. Legal Stud. 303 (2011), Matthew Harding presents arguments to eliminate the freedom to discriminate in the disposition of property, whether for charitable or private purposes. Harding’s primarily-UK focus and philosophical arguments offer a wider and refreshing view of this public policy debate. The end result is a sharpened understanding of our own system.
Harding’s thesis is that the common law can and should develop to eliminate the freedom to discriminate in the disposition of property by gift or trust, whether for charitable or private purposes. He rejects the counterargument of a donor’s personal autonomy. Harding divides his article into two equal parts: Can the common law prohibit discriminatory gifts and, should the common law do so? Continue reading "Philosophizing about Discriminatory Gifts"
Jan 6, 2012 Louis Michael SeidmanConstitutional LawJotwell
Presidents of the United States do not unilaterally extend their term of office, jail all their opponents, or rule by decree. The Supreme Court does not (or at least does not usually) declare its favored candidate to be President. Congress does not abolish the Supreme Court or create an official religion. Why not?
In an important new article, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011), Daryl Levinson reminds us that these familiar facts about our world are deeply perplexing and that the usual explanations for them are manifestly inadequate. Continue reading "Parchment and Obligation"
Jan 4, 2012 Michael MadisonJotwellTechnology Law
Marketa Trimble,
The Future of Cybertravel: Legal Implications of the Evasion of Geolocation,
22 Fordham Intell. Prop. Media & Ent. L.J, (forthcoming 2012), available on
SSRN.
Fifteen years ago, David Post and David Johnson published what some still regard as the seminal paper of cyberlaw scholarship: Law and Borders: The Rise of Law in Cyberspace. Post and Johnson argued that because cyberspace was defined, in a way, by the very absence of territoriality, cyberspace should be governed by laws and lawmakers not tied in traditional ways to territorial states. That paper provoked a reply, Against Cyberanarchy, by Jack Goldsmith, and those two positions – “cyberspace is different”; “no, it isn’t” — have pretty much defined the landscape of cyberlaw ever since. Later scholars have had little choice but to explore the implications and details of staking out intermediate positions. When and how does cyberspace differ, and what do we do about it?
Marketa Trimble’s article approaches this topic by revisiting a species of the territorial question that prompted Law and Borders. How can and should the law address behavior online by people who are physically located in one place but who wish to create or manage online identities in other places? Trimble calls this the challenge of “cybertravel,” a phenomenon that is hardly new but that has taken on renewed significance as Internet technologies (and governments) have caught up to the many ways in which cybertravelers can be in more than one place at a time. Continue reading "Law and Borders, Revisited"
Dec 21, 2011 Kevin C. WalshCourts Law
Some federal judges think that they do not have much to learn from legal academics. At the very least, though, perhaps these judges could learn from legal academics some fruitful ways to learn from other judges. A good start down that road could begin with a recent article by Marin Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, in the Duke Law Journal.
In Mechanics, Levy offers a descriptive, analytical, and normative examination of case management practices in the federal circuit courts of appeals. These practices guide determinations about, among other things, “whether a case will receive oral argument or be decided solely on the briefs, whether its disposition will be drafted by judges and their law clerks or by staff attorneys, and whether it will be resolved by a published opinion or an unpublished, non-binding order.” Levy describes significant variations in these and other case management practices among the circuits that she has studied in depth. (P. 317.) For example, staff attorneys are heavily involved in screening cases for oral argument in the D.C., First, and Fourth Circuits, but “play almost no role in screening” in the Second and Third Circuits. (P. 339.) To pick another example, in the Fourth Circuit, only 13.1% of cases terminated on the merits have oral argument, whereas close to half of all such cases in the D.C. Circuit receive hearings. (Pp. 359-60.) Continue reading "Procedural Values and the Mechanics of Federal Appeals"
Dec 19, 2011 Matt BodieWork Law
How and why do workers join unions? These most basic questions remain the source of significant academic and policy debate. Over the past two decades, unions, employers, and scholars have refocused on the importance of organizing and, in turn, the law relating to employee representational choice. The Employee Free Choice Act—currently in legislative limbo—would dramatically change the current structure by allowing unions to collect signature cards from a majority of the workers to be represented. Under the current system, however, unions must provide signature cards from at least thirty percent of the employees in order to move on to a secret ballot election. In the campaign period before the election, both parties are allowed to press their case vigorously—within limits. In a notable turn of phrase, the NLRB endeavors to establish “laboratory conditions” during the campaign period in order to determine the “uninhibited desires” of employees. General Shoe Corp., 77 N.L.R.B. 124, 127 (1948). As it turns out, establishing laboratory conditions is largely confined to a series of prohibitions: no threats, no bribes, no racially inflammatory speech. There is no obligation to insure that employees have the information they need to make a proper decision.
In Communication Breakdown, Professor Hirsch takes a new and compelling angle on this regulatory approach. While recognizing the importance of protections against coercion, he argues that the law has thus far overlooked the importance of positive employee discourse. He makes his case systematically. First, Hirsch marshals economic and psychological concepts to support the critical role of discourse in group cooperation. Using the work of scholars such as Olson, Ostrom, Axelrod, and Bar-Tal, Hirsch convincingly demonstrates how communication of information between interested parties is a critical catalyst to collective action. Without communication, parties cannot identify and evaluate collective interests or develop a plan of concerted action. Information-packed communication exchange—which Hirsch calls “discourse”—must be protected and even encouraged in order for employees to determine whether they would benefit from unionization. Continue reading "Ramble On: How Workplace Rights Depend On Employee Conversations"
