Call for Papers
Continue reading "Call for Papers"Jotwell Mission Statement
Continue reading "Jotwell Mission Statement"Jotwell Mission Statement
Continue reading "Jotwell Mission Statement"Should We Tax the Rich, or Leave Them Alone?
Linda McQuaig and Neil Brooks, The Trouble With Billionaires, (Viking Canada 2010).
Some books are years ahead of their time, while others are stale before they are printed. The Trouble with Billionaires, which was published last September, was almost perfectly timed, hitting the bookshelves just as we became aware of the increasing influence of a handful of billionaires on the political system in the United States. Although the authors are Canadian (McQuaig a journalist, and Brooks one of the top tax academics in the world), they perfectly captured the current political moment in the U.S. The super-wealthy now truly run the show, and they are less shy than ever about doing so.
Given the time delays in publishing, the substantive work on this book was completed months before it had become clear that the Koch brothers, the billionaire brothers who made their fortune with bare-knuckled tactics in the coal industry, had engaged in a full-on effort – successful, as it turned out – to buy the U.S. mid-term elections. Indeed, even though the book is based on careful research about political influence by billionaires, the Kochs’ names do not even appear in the book’s index. The book’s title, in retrospect, could have been: The Trouble With Billionaires is That Too Many of Them Act Like the Koch Brothers. Continue reading "Should We Tax the Rich, or Leave Them Alone?"
The Dilemma of Nonlegislative Rules
- David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 Yale L. J. 277 (2010).
- Mark Seidenfeld, Substituting Substantive for Procedural Reiew of Guidance Documents (FSU College of Law, Public Law Research Paper No. 479, 2011), available at SSRN.
So-called nonlegislative rules, rules adopted as interpretative rules or statements of policy without notice and comment, have posed problems for courts and scholars for a number of years. In addition to myself,1 in recent years professors Robert Anthony,2 Peter Strauss,3 Elizabeth Magill,4 Nina Mendelson,5 Donald Elliott,6 Jacob Gersen,7 Ronald Levin,8 and John Manning9 have all attempted to bring coherence to the questions raised by nonlegislative rules.
Everyone agrees that agencies must be able to issue certain interpretations and policy statements, generically guidances, without having to follow the notice-and-comment process applicable to legislative rules. On the other hand, everyone also agrees that agencies can abuse the ability to avoid notice and comment rulemaking through invocation of the exceptions for “interpretative rules” and “general statements of policy.” How to police the line between those rules requiring notice and comment and those that do not is what has stymied courts and commentators. Now there are two more attempts in this regard, and while both are worthwhile additions to the field, Professor Seidenfeld seems to this author to come closest to hitting the mark. Continue reading "The Dilemma of Nonlegislative Rules"
A Newly Published Classic on the Ethics and Sociology of Corporate Lawyers’ Work
Robert E. Rosen, Lawyers in Corporate Decision-Making (Quid Pro Books 2010).
Here is one way of describing the ethical challenge facing contemporary lawyers:
Traditionally, professions transcended the seller-customer relation because they met the challenge of moral difficulties, including evil, and emerged not only unscathed but triumphant. Today, legal professionals, fearing they cannot resist, let alone control, the moral pollution around them, retreat into technical virtuosity and specialized expertise. Cleanliness has become the aspiration of the profession. Lawyers seek purity by defining their cases and their work solely in terms of the abstract norms of professional knowledge. At the same time, they argue that to do anything else is dangerous and potentially immoral. To be anything other than a supplier of technical information is to dominate clients. At its best, it is paternalistic. At worst, it is power mongering. The claim is that there is no ethical way for the lawyer to meet moral difficulties. (PP. 158-9.)
It is as apposite a criticism of corporate lawyers-and their abdication from ethical commitment-today as it was in 1984 when it was first written. The paragraph is found near the end of Professor Rob Rosen’s book on lawyers in corporate decision-making that has recently appeared as part of an initiative to publish “influential” unpublished doctoral theses-in this case from UC Berkeley’s sociology department. What an excellent choice for such a series! Although Rosen has drawn on and published parts of the thesis in journal articles, it is a real treat to have the whole thesis now readily available, and with a Foreword by Professor Sung Hui Kim. Continue reading "A Newly Published Classic on the Ethics and Sociology of Corporate Lawyers’ Work"
The Pragmatic Civil Rights Movement in Atlanta
Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (Oxford University Press, 2011).
Tomiko Brown-Nagin’s Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement is an exceptional work of legal history. It is at once emotionally moving, richly detailed, and consistently insightful in its exploration of the varieties of ways in which law and social activism intersect. In this “ground-level view of legal history,” a diverse collection of black activists in Atlanta—lawyers and non-lawyers, elites and non-elites, men and women, young and old—take center stage. Brown-Nagin carefully chronicles the experiences of these local people, showing how they struggled not only with those who sought to defend Jim Crow, but also oftentimes with each another. At the same time, Courage to Dissent connects the local story to developments that swept across the national legal and constitutional landscape during the civil rights era. One of Brown-Nagin’s great accomplishments in this book is to convey the subtleties of the shifting tensions and alliances within black Atlanta’s activist community between the 1940s and 1970s, to connect this local story to the national scene, and to do all this in a narrative that is engaging and powerful.
In previously published articles, Brown-Nagin has made important contributions to our understanding of the dynamics of civil rights activism and litigation. The central theme of much of this work has been an exploration of the persistent yet constantly evolving divisions within the African American community on civil rights goals and tactics, with a particular emphasis on the role of lawyers and litigation in creating and challenging these intra-racial divisions. These articles not only explode simplistic assumptions that there was a monolithic African American community united behind the NAACP’s Legal Defense Fund (LDF) as it pursued its historic litigation battle against Jim Crow, they also identified a more complex matrix of fissures and tensions within black society than had previously been recognized. Continue reading "The Pragmatic Civil Rights Movement in Atlanta"
Rethinking the Giant Mess that is Employment Discrimination Law
Sandra F. Sperino, Rethinking Discrimination Law (forthcoming Mich. L. Rev. 2011), available on SSRN.
Employment discrimination law is a big, confusing mess. That probably doesn’t come as a shock to most readers of this site. The discrimination literature is filled with attempts to vilify, clarify, or unify the existing law in this area. In her forthcoming article, Rethinking Employment Discrimination Law, Professor Sandra F. Sperino displays little interest in doing either of the latter. But she’s also clearly interested in doing more than just vilifying the existing state of affairs.
Sperino begins by noting the development of the familiar frameworks or rubrics that courts use to evaluate discrimination claims. Of course, we are talking about McDonnell Douglas, Griggs, et al. She argues that “discrimination analysis has been reduced to a rote sorting process,” with the result being that “the key question in modern discrimination cases is often whether the plaintiff can cram his or her facts into a recognized structure and not whether the facts establish discrimination.” (P. 2.) This approach raises at least two problems. First, it results in a huge expenditure of (arguably wasted) time and effort on the part of judges, lawyers, and litigants. Second – and the problem Sperino primarily focuses on – is that the approach results in courts failing to recognize or even consider new theories of discrimination. In other words, by focusing so heavily on the frameworks themselves, courts have lost sight of what discrimination law is supposed to be about and what the frameworks were theoretically designed to accomplish. Continue reading "Rethinking the Giant Mess that is Employment Discrimination Law"
Rethinking Rape
I. Bennett Capers, Real Rape Too, 99 Calif. L. Rev. (forthcoming, 2011), available at SSRN.
I had just finished teaching the rape unit to my first year criminal law class when my colleague Rachel Barkow brought I. Bennett Capers’ Real Rape Too to my attention. I know that opinions about whether and how to teach rape vary dramatically amongst faculty members, but for several reasons I have always been committed to teaching it and to encouraging candid classroom discussions. However, one of the interesting things about teaching a topic about which social conventions are still in flux is that increasingly I find myself unintentionally steering the class to the debates of my own youth. Having graduated in the early to mid-nineties, I came of age in the twilight of “no means no” and Take Back the Night. Date rape had gained recognition as “real rape,” but “roofies” were sufficiently unfamiliar that President Clinton had not yet signed the first federal date rape drug law. Understandings about sexuality, too, were still evolving. TV’s “Friends” was considered a pathbreaking show because it depicted a group of male and female friends living together and hanging out in a (mostly platonic) way that felt very familiar to my generation but at times baffled our parents. Gay pride was a common feature on campuses, but few of my peers had been openly out in high school and a “don’t ask, don’t tell” military policy was still considered progressive. And when Ellen DeGeneres came out on her show in 1997, it was still a big media event.
Of course, the students I teach now are already of a different era. They grew up hearing public discussions about the President receiving oral sex from an intern in the oval office, learned that celebrity can be reached by the “leak” of a sex tape, and laughed at bawdy gay sex jokes on “Will and Grace.” They can have “it’s complicated” Facebook statuses, personal experience with “sexting,” and be active in gay marriage debates. And it doesn’t stop there: in the coming years, I’ll encounter a generation that as children flipped through Ellen and Portia’s beautiful wedding photos on the cover of People magazine, heard Senator Scott Brown publicly reveal his childhood sexual abuse, watched Kurt and Blaine’s big, very real kiss on “Glee,” and, if novelist Gary Shteyngart is to be believed, unselfconsciously wear transparent pants. Continue reading "Rethinking Rape"
Sponsored by
JOTWELL: THE JOURNAL OF THINGS WE LIKE (LOTS) ISSN 2330-1295 (ONLINE)
Jotwell is indexed on HeinOnline
Jotwell is indexed on HeinOnline
Authors retain copyright to their articles, but have given us a non-exclusive license to publish it under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License which gives readers certain rights to non-commercial re-use with proper attribution; authors also permit JOTWELL to include their work in commercial compilations.