Jan 12, 2011 Robin WestJurisprudence
Marc Spindelman, Essay, Sexuality’s Law, 20 Colum. J. Gender & L. (forthcoming 2011).
Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.
Professor Spindelman begins his essay with a legal puzzle: why is it that out of the thousands of men who have been infected with HIV through consensual sex with another man who failed to disclose his HIV status, almost none have sought to use the law’s tools so as to seek redress for the injuries done to them? The transmission of disease through sex might be intentional, reckless, or negligent, and in any event, occasioned without the informed or knowing assumption of the risk by the person infected. Yet we see virtually no criminal prosecutions for homicide when this occurs intentionally, and almost no civil awards of damages when it occurs recklessly or negligently. Why? Why have gay men not turned to the law to seek redress against other gay men who harm them, and often kill them, by not disclosing their HIV status in the course of consensual sex? Continue reading "Sex/Power/Law"
Jan 10, 2011 Solangel MaldonadoTrusts & Estates
In her 1996 article, The Myth of Testamentary Freedom, Melanie Leslie argues that “many courts do not exalt testamentary freedom above all other principles” and “are as committed to ensuring that testators devise their estates in accordance with prevailing normative views as they are to effectuating testamentary intent.” I have always agreed with this statement, but Bernie D. Jones’s new book, Fathers of Conscience: Mixed Race Inheritance in the Antebellum South (Univ. of Georgia Press 2009), challenges this assertion. In her analysis of appellate cases from the antebellum era, Jones tells the story of white male slaveholders who used trusts and estates law to grant freedom and/or property to their enslaved mixed-race children and their mothers, thereby circumventing the law of slavery. These testators were counting on judges to exalt testamentary freedom above the law, especially in states where slaveholders’ ability to manumit during their lifetime was quite limited.
Although miscegenation was prohibited in the antebellum South, many white men had sexual relations (sometimes consensual, sometimes not) with female slaves and lived openly with Black women and the children they bore. Despite strong disapproval, there was little that society could do to punish privileged white men who breached social norms. However, these men did more than breach social norms when they sought to grant freedom, property, and the legal rights that follow, to mixed-race children and their mothers; their behavior threatened the institution of slavery itself. Continue reading "Wills, Slavery, and Wealth"
Jan 7, 2011 D. Gordon SmithCorporate Law
John Armour et al.,
Law and Financial Development: What We Are Learning from Time-series Evidence (2010), at
SSRN.
In the late 1990s, Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert W. Vishny (“LLSV”) launched a research project examining connections between legal rules governing investor protection and economic development. Working on the assumption that legal rules could be measured and quantified, LLSV purported to demonstrate that common law countries were more protective of outside investors – and, thus, more hospitable to economic development – than civil law countries. In the ensuing years, LLSV and other economists have expanded and refined their work, constructing the grandly named Legal Origins Theory, which holds that legal systems are important determinants of economic development. The influence of Legal Origins Theory is not confined to economics journals, but may be seen in policy reforms through the World Bank’s Doing Business reports.
While many legal scholars have dismissed this work because of its naïve assumptions about law and legal change, especially in early papers, a group of legal scholars at Cambridge University – led by Simon Deakin, John Armour, and Ajit Singh – took Legal Origins Theory seriously. Embracing the assumption that legal rules could be measured and quantified (“leximetrics”), the Cambridge Group produced legally sophisticated datasets on shareholder protection, creditor protection, and labor regulation. In Law and Financial Development: What We Are Learning from Time-series Evidence, published as part of a recent symposium on Legal Origins Theory in the BYU Law Review, four members of the Cambridge Group take stock of what we have learned from those datasets and chart some new directions for future research. Continue reading "Taking Legal Origins Theory Seriously"
Jan 5, 2011 Joseph SlaterWork Law
D. Aaron Lacy,
Represent: Hip Hop Culture, the NBA Dress Code, and Employment Discrimination (2010),
available at
SSRN.
Over 20 years ago, Detroit Piston Dennis Rodman ignited a firestorm of controversy by saying that if Larry Bird were white he would be considered “just another player.” Pistons star Isiah Thomas was dragooned into explaining this remark during a broadcast of an NBA Finals game. While acknowledging that Bird was a superstar, Thomas made the broader point that race mattered in perceptions of NBA players. White players were labeled “smart and hardworking,” black players were “naturally talented.” Later in that same Finals series I heard a broadcaster describe a Lakers lineup (of all black players) as “thoroughbreds.”
Race has long been significant in sports, today perhaps nowhere as much as in the NBA. Yet discrimination scholars have largely overlooked this fertile field. Stepping into the breach, D. Aaron Lacy has written a provocative and worthwhile piece on a modern symptom of racial anxiety in NBA employment: the NBA dress code. Continue reading "Does the NBA’s Dress Code Violate Title VII?"
Dec 24, 2010 JotwellJotwell
Jotwell is taking a short winter break. Posting will resume early in January.
Happy Holidays! Thank you for reading, and for your support.
Dec 22, 2010 Jonathan SimonCriminal Law
Cecelia Klingele,
Changing The Sentence Without Hiding The Truth: Judicial Sentence Modification As A Promising Method Of Early Release, 52
Wm. & Mary L. Rev. 465 (2010), available at
SSRN.
American state prison systems face a problem equivalent to our once great manufacturing corporations with their unsustainable pension and health care promises to their workers and retirees. In the case of our prison systems, the promises take the form of long and inflexible prison sentences that commit the states to funding the housing and health care of unprecedented numbers of prisoners for decades to come. The costs of these promises, combined in many cases with the failure to provide capacity for healthcare delivery to predictably unhealthy populations, is now confronting the states, sometimes with the prodding of the federal courts, with the need to allocate an ever greater share of revenues to their correctional budgets. In some states the share spent on prisons now exceeds that spent on higher education. At a time of catastrophic revenue shortfalls because of the economic crisis, these costs are forcing many states for the first time in decades to consider ways to reduce prison populations.
While this represents a sea change from nearly forty years of political consensus in support of increasing prison capacity and populations, the question of how to do it in a politically viable way now confronts state leaders with a great conundrum. Unlike the manufacturing corporations that could use the bankruptcy process (or the threat thereof) to wring concessions from workers and retirees and thereby arrive at a sustainable level of liability, states seeking to reduce their incarceration commitments face the politically hazardous task of changing sentencing or parole laws after decades of telling voters that more prison time was necessary for public safety.
Cecilia Klingele’s article is one of the first law review articles I have encountered to directly address this new conundrum rather than treating sentencing policy from a universal and nonhistorical perspective. Klingele has absorbed the lessons of the politics of penal populism and is seeking to develop legal strategies for dealing with it. This article offers an incisive and convincing critique of the currently preferred path being taken by the states and offers a provocative and promising alternative. Continue reading "Is There A Judicial Path Out of Mass Incarceration?"
Dec 20, 2010 Mark TushnetConstitutional Law
Free speech theory has neglected – to the point where it is almost an embarrassment – the treatment of false statements of fact as such (that is, where they do not injure reputation). The Supreme Court has declared that no First Amendment value attaches to false statements of fact – and that there is no such thing, under the First Amendment, as a false idea. One reason for the theoretical neglect of false statements of fact may be that the examples that come to mind blend questions of fact and “ideas” (think of global warming and evolution). Another reason may lie in the chilling-effect argument – that the First Amendment requires that statements themselves lacking First Amendment value, such as false statements of fact, sometimes be immunized from liability out of fear that imperfections in the system of imposing liability will lead speakers to refrain from making true statements because they are worried that a decision-maker might wrongly conclude that the statements were false.
Frederick Schauer’s Nimmer Lecture does some essential ground-clearing on the basic theoretical questions. With his usual analytic care and clarity, Schauer distinguishes between basic facts and opinions, and defends the sensible anti-post-modern proposition that not all facts are socially constructed. The latter is particularly important because there is an understandable tendency to pose questions about regulation of false statements of fact by imagining when the government might want to impose liability, and the usual answers, at least in the United States, do touch on issues where post-modern anxieties might be well-placed (again, think global warming and evolution and even Holocaust denial, though Schauer contends otherwise as to the last). Continue reading "Why Protect Falsity?"
Dec 17, 2010 Richard MurphyAdministrative Law
H. Miles Foy III,
On Judicial Discretion in Statutory Interpretation, 62
Admin. L. Rev. 291 (2010),
available at SSRN.
There is something silly about Supreme Court decisions in which five justices explain that the conventional tools of statutory interpretation—e.g., legislative intent, objective textual meaning, and judicial rules for discerning and applying them—plainly indicate that a statute means A but the other four justices deploy the same tools to explain that the statute plainly means B. After all, if the relevant meaning were all that clear, wouldn’t all nine of the extraordinarily capable legal minds on the Court come to quick agreement? And isn’t their disagreement strong evidence that the statutory question has no pre-existing, determinate legal answer? One might expect that under such circumstances, the rules of reasoned legal discourse would require justices to make remarks like, “Wow. My dissenting colleagues’ arguments are really very good—they almost persuaded me—and I’m no pushover. But, on balance, I still think it is a better idea to choose interpretation A instead of B.” Instead, the more usual practice is for both sides to insist that the other is just plain wrong.
In his elegant essay, Professor Foy suggests courts dispense with such nonsense and instead tell the truth. Suppose, for instance, a judge determines that conventional tools of statutory interpretation do not compel a choice between readings A and B. The judge happens to think that the world would be a better place were she to choose B. Under the current rules of the game, the judge should write an opinion that tries to justify choosing B based solely on conventionally acceptable tools—which might include, say, old dictionaries. This sort of exercise can generate judicial explanations that are strained, arbitrary, or untruthful. According to Professor Foy, the judge should: (a) instead concede that interpretations A and B both seem pretty darn reasonable as a matter of conventional legal analysis, and then (b) truthfully explain whatever reasons of policy, equity, or justice moved the judge to choose one interpretation over the other. In short, judges should admit that they must exercise discretion when choosing among reasonable interpretations of ambiguous statutes and then exercise that discretion as prudently and transparently as they can. Continue reading "The Truth Might Set Your Statutory Interpretation Free"
Dec 15, 2010 Kay-Wah ChanLegal Profession
Carole Silver,
What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43
Akron L. Rev. 1009 (2010), available at
HeinOnline.
Carole Silver is one of the scholars who actively researches and writes on the legal profession in the context of globalization. However, as Silver in this recent article reminds us, there still are many unexplored issues and unidentified data. In this article, researchers will find an abundant source of research ideas. Silver first stresses the significance of “sound empirical evidence” (p. 1014) for policy-makers when they formulate the regulatory framework. She then goes on to identify the actors and activities to be investigated and the relevant data to be collected. In addition, she also suggests possible organization(s) to house the research.
Although Silver writes from an American perspective, the research framework that she suggests, with relevant modifications/adjustments, can be adopted for other jurisdictions. Similar data-collection and research conducted in the main economies and financial centers in the world—for example UK, Japan, China, Germany, Australia, Canada, Hong Kong, Singapore, France—will supplement each other and help in completing a reasonably comprehensive picture of the real situation of the legal services in the context of globalization. This will be useful for policy-making and enhance its credibility. Continue reading "The More We Know, the More We Know We Don’t Know"
Dec 13, 2010 Michael FischlWork Law
Brishen Rogers, Toward Third-Party Liability for Wage Theft, 31 Berkeley J. Emp. & Lab. L. 1 (Winter 2010).
In the law of work, the hierarchy of legal authority – constitutions trump statutes trump common law – is frequently subverted by a common law that doesn’t seem to know its place.
Early efforts to supplant common law with statutory regulation frequently foundered when common law rules morphed into constitutional principles and forced contrary legislation to give way – most famously, when the right to fire “at will” achieved constitutional stature in the service of striking down state laws prohibiting the yellow-dog contract. And the constitutionalized common law continues to this day to shape the regulation of work, most recently when the “at-will” rule reared its head to vanquish “class of one” equal protection claims for public employees. Continue reading "Really Sticky Default Rules"
