Jun 28, 2022 Naomi R. CahnFamily Law
In the introduction to her book, Kristin Henning writes: “We live in a society that is uniquely afraid of Black children.” (P. xv.) The Rage of Innocence shows just what that means for Black children – and the rest of us.
In bleak chapters, Henning examines the criminalization of Black youth. A chapter contrasting the experiences of white and Black American adolescents sets the table. The next three chapters examine how “play,” clothing and hip-hop, and sexuality transform into markers of crime. A set of chapters examining policing-based activities follows, while the penultimate two chapters explore the “dehumanization” of Black children and Black families. Henning shows how the police and school “resource officers” treat the normal behaviors of childhood, when exhibited by Black children, as illegal activities while the same behaviors of white children are unnoticed – or rewarded. She starts almost every chapter with the story of a particular child or youth, and then embeds those stories in social science data and legal analysis that back up and illustrate her point. Continue reading "Let Kids be Kids"
Jun 27, 2022 Leonid SirotaConstitutional Law
Alex Schwartz,
The Changing Concepts of the Constitution, _
Oxf. J. Leg. Stud. _(forthcoming 2022), available at
SSRN.
American readers, especially those of a textualist or originalist persuasion, will likely be familiar with the idea of corpus linguistics. As one well-known article promoting its use explains, it involves searching “for patterns in meaning and usage in large databases of actual written language” in order to clarify the meaning of legal texts that would otherwise be ambiguous or vague. But can techniques involving computer analysis of text help us understand unwritten rules―say, the United Kingdom’s constitution?
In his article, The Changing Concepts of the Constitution, Alex Schwartz sets out to do just that. Using big-data wizardry, Schwartz explores the way in which members of the UK Parliament speak about the constitution and about constitutional concepts such as parliamentary sovereignty, human rights, and the rule of law, and discerns changes in their use over time. The exercise is enlightening both to those studying the UK constitution itself and also, I submit, to those who are interested in the project of understanding constitutions, in all their diversity. Continue reading "The Constitution Is Just What Happens to How We Talk about It"
Jun 24, 2022 Lumen N. MulliganCourts Law
Following “the Dobbs leak,” I re-read Suzanna Sherry’s Our Kardashian Court (and How to Fix it). The piece is, sadly, prescient in discussing our broken Supreme Court. Her diagnosis of the Court’s dysfunction—cults of personality—rings truer following the leak than any Presidential Commission’s report. Her prescription—statutorily mandating that rulings be communicated in per curiam opinions without concurrences, dissents, or vote counts—rings more achievable than court-packing or its derivations do. Further, her piece—more than any I have grappled with for some time—caused me to reflect more deeply upon what the rule of law means in a profession dominated by legal-realist jurisprudence. I urge you to give this piece a read soon.
It is no secret that the Court suffers from greater legitimacy concerns and internal dysfunction than in the past. Many have proffered structural causes and solutions for these concerns. Sherry argues that we should focus on the celebrity status of the Justices as an important causal factor in these breakdowns. The Court is now “Keeping Up with the Kardashians Justices.” That is the problem, in her view. Continue reading "Justice As Celebrity"
Jun 23, 2022 SpearItCriminal Law
“Why does our system pressure innocent people into pleading guilty?” (P. 5)
When people think about how the criminal justice system works, they might think about a trial in a courthouse, with a judge, jury, lawyers, and a defendant trying to beat the case. While this might have been the expectation of the framers, or indeed how criminal justice worked at some times and in some cases, things are very different for most people encountering the system today. Rather than enforce constitutional rights to ensure justice is carried out, what happens today is pure injustice, characterized by individuals pleading guilty to crimes they did not commit, prosecutors leveraging powers and discretion against defendants, and judges and defense counsel who sometimes seem more interested in cutting and approving deals than seeing justice upheld. Rather than arriving at the truth, the system is obsessed with efficiency, with disposing of one case and moving on to the next. The reason innocent people are pressured to plead guilty, asserts Carissa Byrne Hessick, is “because everyone is pressured into pleading guilty. Ours is a system of pressure and pleas, not truth and trials.” (P. 5.)
Hessick’s Punishment Without Trial—Why Plea Bargaining is a Bad Deal argues our system is now designed to impose punishment without trial—a fundamental change to the very foundations of the criminal justice system. The book boldly calls out the constitutional sacrifices made in the name of expediency—and there are lots of them. For example, it is common for prosecutors and judges to impose a “trial penalty” on defendants, by which they give more favorable deals to those who plead guilty and free up the court of having to conduct a trial. In contrast, the defendant who goes to trial can expect to be charged with more crimes and more serious crimes, and handed longer sentences. The penalty effectively punishes a defendant for exercising the constitutional right to a trial by jury, which undermines the very purpose of having the right. But the possibility of more punishment isn’t the only pressure. The system of pretrial detention pushes people to admit guilt too: Continue reading "Bargaining Away the Constitution"
Jun 22, 2022 Robert RosenCorporate Law
Wisdom sometimes is best recognized by a traveler. In Delaware’s Fiduciary Imagination: Going Privates and Lord Eldon’s Reprise, Professor David Kershaw of the London School of Economics revisits cases that we know very well, putting them in the context of British decisions, and elicits a distinction that appears obvious, yet comes as a bit of a surprise: There is a distinction between abuse of power and abuse of influence. These are two ideal types of the “source of obligation” for fiduciaries
Abuse of power flows from the grant of power to the fiduciary. Abuse of influence flows from the limited consent of the beneficiary. For example, controlling shareholders were once understood as being able to abuse their corporate powers. Today, it is more common to focus on how they can “threaten the minority to say ‘yes.’” Duties to creditors follow from influence over them near the debtor’s insolvency but do not flow from an abuse of corporate powers. Continue reading "Bringing the Fiduciary Back In"
Jun 21, 2022 Priya S. GuptaContracts
Chaumtoli Huq,
Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anticapitalist Lawyering,
35 J. Civ. Rts. & Econ. Dev. __ (forthcoming 2022), available at
SSRN.
Professor Chaumtoli Huq’s recently posted Article, Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anticapitalist Lawyering, provides an accessible and insightful map for engaging with and applying theories of racial capitalism in a first year Contracts law course. Her Article is a powerful testament to the idea that critical legal thinking skills are good legal practice skills. Asking questions informed by racial capitalism enables us to better articulate in the classroom how the law that builds and reinforces capitalism is not (only) racially exploitative through one-off instances of discrimination, but rather throughout the very foundations of labor, property, contract, and corporate jurisprudence.
The Article deftly demonstrates the pedagogy of a racial capitalism-informed contracts law analysis. Huq presents several critical concepts, including “praxis” and “racial capitalism,” in accessible language while also explaining their relevance for legal education. In describing racial capitalism as “the mutual interdependence of racism and capitalism, a form of capitalism that relies on and is maintained by the exploitation and reproduction of racial differences” (P. 5), she draws from Ruth Wilson Gilmore, Cedric Robinson, Robin D. G. Kelley, Claudia Jones, and others, explaining the under-appreciation of Jones’ and other Black feminist insights in academic literature along the way. She describes the relevance of racial capitalism for contract law thus:
Racial capitalism provides an important through-line for students to understand how racial inequalities are reproduced in the present and the law’s role in this reproduction. As essentially a political- economic theory, it is particularly useful to draw connections between legal doctrine and the market economy. It stands in contra- distinction to the dominant classical and neoclassical economic theory embedded in contract doctrine. (P. 10.) Continue reading "Seeing Contract Law through Racial Capitalism"
Jun 20, 2022 Marc SpindelmanEquality
On June 17, 2017, a small group of queer Black trans protesters and allies blocked my hometown’s pride parade. The plan was to “silently block[] the [Stonewall Columbus Pride] parade for seven minutes to hold space for Black and brown queer and trans people.” The seven minutes corresponded to the seven bullets police officer Jeronimo Yanez fired at Philando Castile at close range, killing him, an act Yanez was charged for, but acquitted of the day before Columbus Pride. Nothing like those seven bullet minutes passed before Columbus police swiftly and forcefully stopped the protest, arresting “four Black queer and trans folks” on various charges. Those arrested became famous as the “Black Pride 4.”
Five years later, the Black Pride 4’s protest—along with pride-timed and other protests elsewhere, and marches, conversations, and community work in their wake—has precipitated a reckoning in Columbus’s and other LGBTQ communities across the nation. LGBTQ individuals and leaders—not themselves queer, Black, or trans—and many LGBTQ organizations are finally grappling with the violent realities and material privations queer Black trans people regularly suffer, along with whether and how to center queer Black trans people and their liberation as key to LGBTQ politics.
Despite the path the Black Pride 4’s 2017 Columbus Pride protest has forged inside LGBTQ communities, it has not generated widespread academic engagement—yet. Zane McNeill and Kyra Smith’s Whose Pride Is This Anyway? The Quare Performance of the #Black Pride 4 promises to help change that. Continue reading "LGBTQIA+ Pride, 2022: The Story of the Columbus, Ohio #BlackPride4, Five Years On"
Jun 17, 2022 Sandy SteelTorts
Rebecca Stone,
Private Liability without Wrongdoing, __
U. Toronto L.J. __ (forthcoming 2022), available at
SSRN (Oct. 19, 2021 draft).
Rebecca Stone’s fascinating and superb Private Liability without Wrongdoing addresses a fundamental question: What is the relationship between moral wrongdoing and private law liability?
On the face of it, moral wrongdoing is neither necessary nor sufficient for private law liability in common law jurisdictions.
Not necessary, one might think, because exacting, objective, “reasonable person” standards result in liability when the legal duty-bearer could not have acted otherwise. Further, private law rights and duties are insensitive to background distributive injustice. Therefore, one might think that if a homeless person agrees to pay a high rent to a wealthy landlord for shelter, the homeless person would not morally wrong the landlord if the person breached the legal duty created by the agreement.
And, less disputably perhaps, moral wrongdoing is insufficient: adultery is plausibly morally wrong, but, these days, does not attract private law liability. Consider, too, the wrong of failing to conduct the easy rescue of a drowning stranger because of a concern for spoiling one’s new shoes. Such an omission is generally not actionable in the private law of common law jurisdictions.
How should a philosopher of private law respond to these facts? Continue reading "Liability without Wrongdoing"
Jun 16, 2022 Richard MurphyAdministrative Law
Sure, we all know about Ex parte Young, the 1908 Supreme Court precedent that stands broadly for the proposition that plaintiffs can, without any express statutory cause of action, invoke a form of “nonstatutory review” to sue government officials to enjoin unconstitutional actions. But familiarity has not brought clarity regarding this cornerstone of judicial control of official action. Questions have lingered for a century regarding Ex parte Young’s evasion of the 11th Amendment, the source of its cause of action, its proper scope, and its jurisdictional basis. In just the last year, Ex parte Young made a surprisingly large splash in the news for a 113-year-old federal courts decision as the justices have sharply disputed its parameters in the challenge to Texas’s six-week ban on abortions that culiminated in Whole Woman’s Health v. Jackson (2021). The scope of the federal courts’ equitable power associated with Ex parte Young remains remarkably unsettled.
The Supreme Court has told us that, to determine the scope of the federal courts’ equitable powers, we should look to history—and especially to the English High Court of Chancery circa 1789. In their richly detailed and fascinating article, The Common Law Origins of Ex parte Young, Professor James Pfander and Jacob Wentzel contend that important and influential scholarship, consistent with this guidance, has deployed a narrow form of “equitable originalism” that threatens to unduly limit judicial power to issue injunctive relief to stop constitutional violations. Continue reading "Whence Ex parte Young?"
Jun 15, 2022 Kerri Lynn StoneWork Law
Pat K. Chew’s Hiding Sexual Harassment: Myths and Realities exhorts the reader to view sex discrimination’s and sexual harassment’s invisibility as being among their most nefarious attributes. This piece is convincing and thought-provoking. As the #MeToo movement hits a crossroads, this article deserves to be centered in the literature, and in any discussion of workplace sex discrimination and sexual harassment.
The article is organized as a series of myths: “Sex discrimination is no longer prevalent,” “Sexual harassment is no longer prevalent,” and “Sexual harassers are stopped and punished,” and upon reflection, it does appear that these are still widely-held societal beliefs. By probing into why these beliefs persist despite so much evidence to the contrary and into how they operate to obscure and amplify the harm caused by sex discrimination and sexual harassment, this piece yields a novel angle from which to confront these problems. Continue reading "Behind the Myths: Paving the Way for Real Redress of Sexual Harassment and Sex Discrimination in the Workplace"
