Jun 13, 2011 Kim Brooksequality
Long overdue, in 2010 Canada ratified the United Nations Convention on the Rights of Persons with Disabilities. (The United States has yet to ratify the Convention.) While countries can ratify conventions at the international level, it is often the case that only in translation to our domestic, sometimes even local, contexts do we see the real effects of our commitments.
Judge Anne Derrick’s piece, a report on the death of Howard Hyde ordered by Nova Scotia’s Minister of Justice, pushes at the boundaries of what most of us would consider scholarship; yet, it is the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months. It provides a marvellous illustration of the values reflected in the Convention played out against one very specific set of facts.
Howard Hyde, who was experiencing a recurrence of his chronic schizophrenia, was arrested by the Halifax Regional Police on November 21, 2007, after assaulting his common law partner. Mr. Hyde tried to escape from the police when he was being booked. A conducted energy weapon was twice used to shock Mr. Hyde. After additional struggles, Mr. Hyde collapsed and stopped breathing. He was revived and taken to the hospital. After recovering at the hospital, Mr. Hyde was discharged once again to the police. Later in the day, he appeared in court and was remanded to a correctional facility for the evening. Mr. Hyde did not sleep that night.
On November 22, while being transported to court, Mr. Hyde attempted to escape from correctional officers. He was restrained in a cell by correctional officers and stopped breathing. He was pronounced dead at 8:43 a.m.
This is the story that gave rise to the inquiry and the subsequent inquiry report. Even in its simple telling, drawn from the Preface of the report, the terror that a man living with a mental illness must have felt through the whole ordeal, and the inadequacy of the institutional response to his needs, is apparent.
The report deserves to be read in its entirety – all 7 parts, 57 chapters, 462 pages. Rooted in the experience of one man, in one small corner of the world, the inquiry report demands broad readership.
Following a moving introduction and preface, the report reviews the factual narrative (Part II), outlines the cause and manner of death (Part III), addresses a range of issues that arise from the inquiry (Part IV), delineates the major findings (Part V), reviews changes since the time that Mr. Hyde died (Part VI), and provides for recommendations (Part VII) and a conclusion (Part VIII).
Let me highlight two aspects of the report, simply as a teaser. First, the report’s 80 recommendations are essential ground for equality scholars with an interest in policy-relevant scholarship. It might be noted that the recommendations appropriately do not focus on the assault of Mr. Hyde’s common law partner (although the need for appropriate accommodation for accused persons living with mental illnesses is underscored); rather, they are focused on the interaction between mental health and the criminal justice system. The recommendations cover everything from the importance of developing a provincial mental health strategy that ensures coordination of care, integration of services and supports, and monitors quality and outcomes (Recommendation 1) to implementing a diversion program, including pre-charge diversion, for accused persons with mental illness (Recommendation 10) to training police with an eye to the overarching purpose of the development of a culture of respect and empathy for persons with mental illness in the justice system (Recommendation 49).
Second, the report is beautifully written. Let me draw from the conclusion, which demonstrates more than ably the skill of the author and her ability to cut to the core of the issues before her:
At an immediate, fundamental level, what Mr. Hyde needed was human contact, reassurance and kindness. The evidence discloses how well he responded, even when somewhat agitated, to simple but effective interactions that incorporated these elements. Certain police officers, sheriffs and correctional officers were all successful in their interactions with Mr. Hyde utilizing approaches that were empathetic, respectful and caring. Even though he was acutely ill, Mr. Hyde was reassured and comforted “by talking to him.”3 Understanding this is to understand Mr. Hyde’s humanity and recognize in him, ourselves. (P. 388, footnotes removed)
I might conclude just by saying, briefly, something about the value of understanding this report as a form of scholarship. If the highest calling of scholarship is to reveal the truth of the world, and perhaps further to reason about what that truth should be, then this report fits within the core of that ambition. The report contributes to our knowledge about mental illness, the interaction between human beings experiencing a form of mental illness and the criminal justice system, and the potential to recognize and appreciate the fullness of the human experience. It is, in that regard, scholarship of discovery. In addition, Judge Derrick draws together diverse strands of evidence and weaves those together analytically, in a way that demonstrates the scholarship of integration. Finally, the report’s provision of thoughtful and detailed recommendations is exemplary of scholarship of application.
The report’s conclusion section opens with a quote from T.S. Eliot. It might be used to reveal the connection between the work of Judge Derrick in this report and the explorations we all take as scholars:
We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.
– T.S. Eliot
Jun 12, 2011 Michael Froomkinequality
Equality Law Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Kim Brooks
Dean and Weldon Professor of Law
Dalhousie University – Schulich School of Law
Professor Sonia Lawrence
Director, Institute for Feminist Legal Studies
York University – Osgoode Hall Law School
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Davina Cooper
University of Kent Law School
Professor Elaine Craig
Dalhousie University – Schulich School of Law
Professor Margaret Davies
Flinders University School of Law
Professor Katherine Franke
Director, Center for Gender and Sexuality Law
Columbia Law School
Professor Isabel Grant
University of British Columbia, Faculty of Law
Professor Robert Leckey
McGill University, Faculty of Law
Professor Val Napoleon
University of Alberta
Professor Camile Nelson
Suffolk University Law School
Professor Ruthann Robson
Professor of Law and University Distinguished Professor
City University of New York School of Law
Professor Toni Williams
University of Kent Law School
Jun 9, 2011 Margareth Etiennecrim
In her groundbreaking book, Danielle McGuire chronicles an untold story of how criminal investigations and prosecutions in rape cases helped to ignite and shape the civil rights movement. Contrary to the now familiar stories of cases like the Scottsboro boys or Emmet Till—cases in which the law failed to protect the lives of black men in courts and in their communities, McGuire writes about the prosecution of rape and sexual assault committed against black women. As a historian, McGuire focuses on two important aspects of these criminal cases. First, the cases served as bellwethers for the social and political rights of black women. Second, they involved some of the earliest attempts to organize and mobilize churches and political groups in the fight for civil rights.
These cases are valuable to criminal law scholars as well. They expose the deep connection between civil and human rights for women, on the one hand, and for the criminal law’s capacity to protect their bodily integrity, on the other. In other words, one important test of freedom for women everywhere—and in this case for black women—is the ability to walk “at the dark of end of the street” under protection of law. The notion that civil rights for women were connected to the criminal law’s protection of women’s bodies was understood early by black women activists. McGuire makes the point that the struggle to bring rape and sexual assault cases to justice has been an important, if underexplored, aspect of the civil rights movement.
Consider, for example, the 1944 rape and kidnapping case of Recy Taylor in Abbeville, Texas. Ms. Taylor, then a young married mother and sharecropper, was walking home from church accompanied by two other church members. Seven armed white men ordered her to get into a green Chevy alleging that they were deputized by the local sheriff to find her. They drove her into the woods where six of the men serially gang raped the sobbing Taylor. They then blindfolded her and abandoned her on the side of the highway where they left her to walk the long walk home. The twenty-four year old Taylor removed her blindfold and began toward home where she immediately reported the crime to her family and to the local sheriff. The men, some of whom were neighbors, were quickly identified. They confessed to having had sex with the disheveled and battered Taylor but said it was consensual.
As historian McGuire attests, the sexual abuse and exploitation of black women like Taylor by white men between Reconstruction and the civil rights movement was neither unusual nor undocumented. Black women did not keep secret their stories of victimization, and these stories soon became an important part of the politicization of black women activists and clubwomen. McGuire cites to activists like Ida B. Wells (noting in 1892 that the “rape of helpless Negro girls, which began in slavery days, still continues without reproof from church, state or press”); and Fannie Barrier Williams (lamenting the “shameful fact” that southern women remain “still unprotected”); and Anna Julia Cooper (describing black women’s “painful, patient, and silent toil… to gain title of the bodies of their daughters”).
What is new about McGuire’s book is the extent to which she shows how the struggle for the rule of law in criminal cases involving black female victims was an important and little know precursor of the civil rights movement. Recy Taylor’s case is once again instructive. A few days after Taylor’s abduction and rape, her family received a call from the then-president of the Montgomery chapter of the NAACP. He promised to send his best investigator to Abbeville, Alabama to investigate and champion the prosecution of Taylor’s assault. That investigator was Rosa Parks—an anti-rape activist later simplistically portrayed by civil rights historians as a tired old woman who spontaneously declined to relinquish her seat on a public bus.
As branch secretary of the NAACP, Rosa Parks was tasked with traveling throughout Alabama to document acts of brutality, intimidation and other incidents. Following her close involvement in the defense of the Scottsboro case, Parks became especially interested in interracial rape cases. Not only did she investigate and publicize the Recy Taylor case but she also garnered national support from labor unions, women’s groups and African American groups into what was called “the strongest campaign for equal rights to be seen in a decade.” (P. 13.)
McGuire’s book relies heavily on news articles, interviews and the investigative notes of lay criminal investigators like Rosa Parks. The stories McGuire gathers reveal a common pattern. White men (often claiming to act with the authority of law enforcement or as an employer offering a job) lured or forcibly abducted these women as they traveled or waited in public places. In addition to Recy Taylor, McGuire tells the stories of black women from all walks of life—young, old, married, single, maids, school teachers. She brings to life the tragic rape stories of black southern women like Mary Poole in North Carolina, Sadie Mae Gibson in Alabama, Rosa Lee Cherry in Arkansas, Lila Belle Carter in South Carolina, Nannie Strayhorn in Virginia, Ruby Atee Pigford in Mississippi. McGuire tells too of how each struggle for prosecution helped to ignite the civil rights movement throughout the South.
Jun 8, 2011 Michael Froomkinequality
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
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Jun 8, 2011 Michael Froomkinequality
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.
Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.
A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.
The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.
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Jun 6, 2011 Neil H. Buchanantax
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.
Other than being eerily prescient, however, what is so new about a book that deplores concentrations of wealth? Is it not standard fare on the political left (and even toward the center) to lament the increasing stratification of incomes in the U.S. and elsewhere? Actually, there is quite a bit of disagreement, even among American liberals, about these issues. As McQuaig and Brooks point out, some top American academics who identify as liberal/left have taken the position that the central issue in distributive justice is not actually distribution across the income spectrum, but only the eradication of poverty at the bottom of the heap. These thinkers argue that it is both unnecessary and unwise to expend political effort trying to rein in upper incomes, because our energies would be better spent trying to help the neediest among us.
This is a defensible position. If there were no serious problems facing non-rich people – that is, if we were confident that no one would die because she had to choose between putting food on the table or buying medicine, and that small changes in luck could not destroy peoples’ lives in a cascade of disasters linked to being forever on the edge of insolvency – then why would anyone care whether some people are doing extraordinarily better than everyone else? In those happy circumstances, we would not need to worry about the existence of the hyper-rich, even if we believed that every single one of them had accumulated their fortunes through “the ovarian lottery” (a term coined by multibillionaire Warren Buffett) or other dumb luck. Why begrudge other peoples’ good fortunes when no one is suffering because of them?
McQuaig and Brooks have an answer to that question, one that I find completely convincing. (They do not claim to be plowing new ground, of course. Who could hope to do so, on a subject as central to modern politics as distributive justice and tax policy?) They offer a reasoned, two-prong response to the question of why it is necessary to make the hyper-rich less rich, rather than simply making the poor no longer poor and the middle class no longer so vulnerable to disaster.
The first prong is that the wealthy are not content simply to enjoy their wealth, while leaving the rest of the world alone. They are able to affect politics to their advantage, and they are eager to do so. They affect politics explicitly, as when they give money directly to politicians, think tanks, and Astroturf political organizations. More insidiously, they also affect politics simply by being known to be willing to intervene. One definition of power, after all, is being able to get one’s way without expending any effort, or even needing to ask for what one wants. The hyper-rich have made sure that politicians know that some policies are unacceptable and unthinkable to the wealthy. The political class then makes sure that those unthinkable policies – should anyone be so gauche as to articulate them – are laughed or shouted out of the room. The book’s first chapter, “Return of the Plutocrats,” sets the stage for this sustained argument. The trouble with billionaires, then, is that they get what they want, and they have the means to do so in a way that makes it seem that they are not pulling the strings at all.
While the first prong of McQuaig and Brooks’s argument is that the rich can get what they want from the political system, which might seem obvious (at least, after one sets aside the idea that we are supposed to be living in a democracy), their second prong answers the less obvious follow-up question: Why do we think that the hyper-rich want things that are bad for the rest of us? In fact, as the authors point out, it might be logical to imagine that truly wealthy people will become less selfish as they get more of what they want, so that we might one day find ourselves in a pleasant equilibrium in which the billionaires ease up on the whip and allow the political system to benefit the less fortunate. This argument is also appealing because it seems to be a first cousin to the (almost certainly true) argument that democracies become less tolerant when their economies turn bad, with everyone fighting each other for the scraps. (This is certainly an apt description of the U.S. today.)
McQuaig and Brooks respond by simply pointing to the facts. Rather than seeing evidence of less self-serving political manipulation by the wealthy as they have become ever wealthier, we always and everywhere see them becoming more grasping, more shameless, and more ruthless. Political cultures might become more humane when the entire country is experiencing broad-based prosperity, but they become more brutal when the prosperity is controlled by a few plutocrats with bottomless appetites for wealth and power.
The book concludes with a bold list of redistributive policy prescriptions, none of which are currently thinkable in the U.S. (or, apparently, in many other countries). McQuaig and Brooks’s achievement lies in making the argument that extreme wealth will do all that it can to perpetuate itself, including making taxing the rich politically toxic. The answer is not to pretend that we can ignore the power of the wealthy. The only answer is to confront it.
Jun 3, 2011 William Funkadlaw
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, in recent years professors Robert Anthony, Peter Strauss, Elizabeth Magill, Nina Mendelson, Donald Elliott, Jacob Gersen, Ronald Levin, and John Manning 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.
Nonlegislative rules raise three distinct but interrelated problems. The first question, and the one that has probably received the greatest amount of attention, is how to determine whether a rule adopted without notice and comment is indeed an interpretative rule or statement of policy, or whether it is instead a legislative rule invalidly promulgated because it was not adopted following notice and comment. The second question is when should a nonlegislative rule be subject to preenforcement judicial review or, stated otherwise, whether a nonlegislative rule can be final and ripe for review. The third question is what deference should a policy or an interpretation of law in a nonlegislative rule receive from a reviewing court.
The questions are related, because how they are answered may greatly affect the incentives for an agency to utilize nonlegislative rules in place of a legislative rule. An agency almost always has the authority to issue a nonlegislative rule as a legislative rule, but given the existing statutory and non-statutory hurdles to adopting legislative rules and the relative ease with which regulated entities and regulatory beneficiaries can obtain preenforcement judicial review of legislative rules, there is already a bias in favor of using nonlegislative rules rather than legislative rules. If, however, an agency can both receive the same substantial deference to its interpretations and policies contained in nonlegislative rules as it can in legislative rules and avoid preenforcement judicial review of those nonlegislative rules, the agency will have an even greater incentive to substitute nonlegislative rules for legislative rules.
Both Franklin and Seidenfeld relate the history of the controversy and understand the interrelationship of the three questions. Both recognize the problem with the judicial doctrine that if a rule is legally binding it cannot be a nonlegislative rule: “difficult to apply consistently” (Franklin, P. 288) or “so confused that courts and commentators alike describe the doctrine as engulfed in smog.” (Seidenfeld, P. 14.) Franklin, however, sees his task to be the rebuttal of what he terms the “short cut” approach to dealing with this problem. As Franklin describes the short cut:
[R]ather than asking whether a challenged rule was designed to be legally binding in order to determine whether it must undergo notice and comment, courts should simply turn the question inside-out and ask whether the rule has undergone notice and comment in order to determine whether it can be legally binding…. No longer would a rule’s substantive nature dictate its procedural governance; instead, its procedural provenance would determine its substantive effect. (Franklin, P. 279.)
A number of commentators have argued for this approach, suggesting that substantive judicial review of nonlegislative rules, combined with the lesser deference generally accorded nonlegislative rules, provide a sufficient safeguard against agency abuse.
Franklin, however, questions this conclusion. For one, he doubts that agencies merit any difference between the deference received under Chevron or Skidmore as worth avoiding nonlegislative rulemaking. A recent article by Richard Pierce might support that conclusion, in which he surveys a number of empirical studies of judicial review of agency action, finding that “the choice of which doctrine to apply… is not an important determinant of outcomes in the Supreme Court or circuit courts.” Nevertheless, agencies still spend a lot of energy litigating in favor of Chevron versus Skidmore deference when the issue comes before a court. Perhaps more important, Franklin doubts the efficacy of substantive review of nonlegislative rules because often, perhaps overwhelmingly, the nonlegislative rules will escape any substantive review. Because of the hurdles imposed by courts to preenforcement review of nonlegislative rules, they are likely to be reviewed only in enforcement actions, but that assumes that a regulated entity will violate a nonlegislative rule. If the regulated community is sufficiently coerced into following the rule, it will never be tested. Equally important, if the nonlegislative rule favors the regulated community and it is the regulatory beneficiaries who wish to challenge the rule, the absence of preenforcement review will mean no review can ever take place. These gaping holes in the availability of substantive review of nonlegislative rules, Franklin believes, renders the check of substantive review an illusion.
Finally, as Franklin says, the “most fundamental” objection to the short cut is that it substitutes judicial review for public scrutiny and participation in making policy as reflected in the requirement for notice and comment. Franklin places a high value on public participation, but the Administrative Procedure Act only requires notice and comment in certain situations. Franklin seems to want to reach the same end the D.C. Circuit wanted to reach in its pre-Vermont Yankee line of cases requiring notice and comment for nonlegislative rules that had a substantial impact on persons. That is, if persons are to be adversely affected by a nonlegislative rule, they should be able to participate in the formulation of that rule. Of course, the APA’s response to persons adversely affected by agency action is to provide the ability to challenge the lawfulness of that action in court, not to comment on its formulation.
Franklin concludes by approving of the very inconsistency of judicial decisions that he acknowledged in the beginning. This inconsistency means that agencies are never sure how far they can go in making nonlegislative rules; to avoid judicial invalidation they will err on the side of restricting their output of nonlegislative rules and will have a greater incentive to adopt legislative rules that will be insulated from procedural invalidation. This assures greater public participation.
Seidenfeld’s article, although apparently written mostly before Franklin’s article was published, is a direct response to Franklin’s proposed solution – the status quo – as well to proposals made by Elizabeth Magill and Nina Mendelson. Seidenfeld clearly does not value public participation as highly as Franklin. Perhaps as a former regulator Seidenfeld appreciates what the literature overwhelmingly supports: that the formal public participation involved in the notice-and-comment process usually does not in fact have much influence on agency decision-making. Also, perhaps as a former regulator, Seidenfeld values more highly the importance of agencies being able to issue guidance documents without either the procedural hurdles of notice-and-comment rulemaking or the uncertainty of outcome resulting from ad hoc judicial review as to whether the guidance is an invalidly adopted legislative rule.
Seidenfeld’s solution is to adjust judicial doctrine to respond to the practical problems Franklin identifies with using the short cut. First, he endorses the short cut, that is, the use of substantive judicial review of nonlegislative rules in place of courts attempting to discern the procedural validity of such rules. He recognizes the limitations existing in current doctrine on preenforcement review of nonlegislative rules and would make appropriate changes to that doctrine to enable the substantive review to be a real “check” on potential agency abuse of the use of nonlegislative rules. Perhaps it would be more accurate to say that he suggests courts have been applying current doctrine incorrectly. For example, he points out that courts finding nonlegislative rules non-reviewable because they are not “final agency action” are really just wrong in their application of the finality doctrine, albeit they have some excuse because the Supreme Court has not been clear as to whether the second prong of finality doctrine actually requires the agency action to have binding legal consequences or whether it merely changes the legal landscape. He further argues that ripeness as appropriately applied should not bar review of most guidance documents that adversely affect either regulated entities or regulatory beneficiaries.
Finally, Seidenfeld addresses at some length an issue no one has previously dealt with precisely – how should substantive judicial review of an agency policy statement proceed in the absence of an administrative record to which outside parties had no opportunity to contribute. His answer is simple; courts should simply apply traditional “arbitrary and capricious review,” or stated another way, use a requirement of reasoned decision-making. That is, in essence his proposal would have courts review that agency’s nonlegislative rule on the basis of the information the agency had available to it when it adopted it, supplemented by a requirement that the agency provide a contemporaneous explanation for its action – both of which are standard, current practice for judicial review of agency action. And, Seidenfeld adds, drawing from the Court’s decision in Massachusetts v. EPA, where the Court was reviewing an agency action without a traditional administrative record, courts could, in assessing whether the agency had “considered the relevant factors,” also take into account what the agency should have known and considered. This might in some degree make up for the lack of third party input to the record.
With these modifications or clarifications to existing doctrine, Seidenfeld suggests the dilemma of nonlegislative rules can be solved. Whether he is right I expect will lead to further articles; whether the courts will adopt his suggestions I fear is as unlikely as the legislative solutions I proposed years ago.
Jun 1, 2011 Christine Parkerlegalpro
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.
In its time Rosen’s thesis was a groundbreaking piece of empirical sociological research and ethical analysis of the emerging phenomenon of inside counsel. It remains a “classic”-and still very timely-dissertation for two main reasons: First, the design of Rosen’s empirical research is instructive and challenging for those of us who are interesting in doing sociology of the legal profession. Second, the way that Rosen combines sound and creative empirical sociological research with ethical insight, critique and analysis using literature on both the legal profession and organizations is an inspiring model for those who want to do solid social science research and make a normative contribution as well.
As Rosen points out in his preface to the 2010 edition, the methodology remains “distinctive”. The focus is on inside counsel, but the unit of analysis for the research is not individual inside counsel or their organizations, as it has been in most other studies of inhouse and other corporate lawyers. Rosen more productively chooses specific legal cases-particular instances of advice provided to industrial corporations-as his unit of analysis. That is, his object of study is not the person in the role of inhouse counsel, but the work that they do for the corporation in connection with the external lawyer and business manager. His methodology (explained in the original preface to the dissertation) thus involved first interviewing a range of inside counsel about their work. On this basis he identifies a number of specific problems or cases where legal advice had been provided. He went on to identify both the external lawyers and internal business managers involved in each case and interview them. This process yielded 70 interviews-but as Rosen points out, it is not the “counting” that is important, it is the ability to understand the complexity of how legal tasks are understood and structured from the perspective of the three groups of actors most centrally involved in creating and prosecuting them: “From these interviews with different participants, three versions of the same events emerged. I was thus able to reconstruct the problems to analyze the behavior of and the constraints facing the various actors.” (P. x.)
The substance of Rosen’s work in each of the substantive chapters is therefore based on rich description of particular cases in specific organizations from the point of view of several participants with different roles and commitments in each case:
Rosen’s study is therefore not based on interview data consisting of abstract pietisms or self-serving reflections from lawyers alone:
I therefore abandoned a set formula with abstract questions and concentrated on tracing the ramifications of particular decisions. The lawyers, who are used to answering specific questions about a case, like those presented in a deposition, seemed grateful for this more concrete method. In addition to being encouraged to focus on specific decisions, the lawyers also were asked how other lawyers handled or would have handled the same issue. … [This] prodded the lawyers to talk both about their action and about their reasons for acting. (P. xi.)
On this basis he is able to tell us about real products and real companies and the various legal services that become relevant in every day organizational life and processes. We learn about hiring and firing, about tax and patents, what happens when a chemical company starts selling to a beauty products manufacturer rather than a steel company, and what happens when a vitamin supplement becomes popular for the wrong reasons. We also find out about power struggles between lawyers and managers, and managers and managers, and how they are resolved.
There is much for scholars of the legal profession and legal ethics to learn here. It is often too easy think we are doing “law and society” type analysis of lawyers’ ethics when we begin and end with the lawyers’ view of his or her working world. But in this study the focus is on the lawyer’s work itself which inevitably leads Rosen to examine the connections between lawyers and the world of people and things in their organization and outside of it. It is only in understanding these relations (not just the lawyer’s view of them) that we can get any grip on the ethical world of the corporate lawyer, since ethics by definition involves how a person responds and relates to other people and things. In studying corporate lawyers’ ethics the questions must be: whose interests and influences (which other corporate actors? which other lawyers? in what relationships to one another?) are brought into action in what ways (through what processes of engagement, persuasion, argument, or threat? using what justifications to themselves and to others?) and with what effects (on people and things inside and outside the organization) through corporate lawyers’ work? This is the question that Rosen unfolds for us in this wonderful research. It should challenge those of us who work in this area to build on Rosen’s work and go even further tracing the lawyer’s work through not only the client and the external lawyer hired for the client, but also the lawyers and clients on the other side in contracts, disputes and litigation, the judges and those ordinary customers and others who might ultimately have been affected directly or indirectly by what the lawyers and their clients do together.
Rosen’s sound micro-sociology of lawyers’ work forms a robust basis for his more normative task – “my search for the bases of civic good in corporate legal services” (P. vii.) His empirical work informs us about the constraints and opportunities that individual lawyers experience in choosing to be either “rule-formalists” or “responsibility consultants”. Rosen goes on to connect this micro-sociology to broader themes in the sociologies of the legal profession and organizations in a most enlightening way. Ultimately Rosen addresses the (erroneous in his opinion) view that “certain choices are questions of business not of law” (P. 140.) by showing-empirically and normatively-that “rather than a split, a continuum exists between law and business. The law is not merely the formal derivative of public political processes. Law is part of all social processes.” Indeed. This is a central theme of law and society research, and here is a book well worth reading for how it demonstrates the value (in both senses of the word) of law and society research on corporate lawyers’ ethics.
May 30, 2011 Christopher Schmidtlegalhist
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.
Courage to Dissent pursues these same themes, yet the long format of a book gives Brown-Nagin an opportunity to present a story that is both deeper and broader. The book is filled with fascinating details about the civil rights movement in Atlanta, including numerous terrific character sketches of its leading figures. The book also allows Brown-Nagin to present something of an intergenerational epic, with each generation of activists giving rise to new reform movements that both build off and critique choices and achievements of the previous generation.
At the heart of the book is the concept of “pragmatic civil rights.” Brown-Nagin introduces this useful term to describe the ways in which local civil rights actors developed their own vision of reform, which was often in tension with that of the national NAACP. “Pragmatism,” she explains, “privileged politics over litigation, placed a high value on economic security, and rejected the idea that integration (or even desegregation) and equality were one and the same.” Atlanta’s pragmatic civil rights leaders felt LDF lawyers were too tied to the courts. While they saw a role for litigation (many of Brown-Nagin’s pragmatists were, in fact, lawyers), they felt that LDF’s commitment to school desegregation suits did not always serve the larger cause of advancing racial equality. Pragmatists targeted a wide variety of issues, including not only schools but also voting, political empowerment, access to public accommodations, housing, and jobs. And they used whichever tools they found best suited to the task—litigation, lobbying, negotiation.
Brown-Nagin divides the era of the “long” civil rights movement, beginning in the 1940s and continuing into the 1970s, into three periods—three generations of civil rights activism each with its own distinctive intra-racial dynamics of class and ideological tensions. The first period focuses on local African American elites and their sometimes tense relationship with the national NAACP in the 1940s and 1950s as they sought to maintain their own commitment to more flexible and less ideological approaches to civil rights reform. The next period begins in dramatic fashion with the student sit-in movement of 1960. The rise of direct action protest obviously challenged the white power structure across the South. But in Atlanta and elsewhere the students who embraced these tactics also challenged the assumptions of the older generation of black civil rights leaders on both the local and national levels. This period also gave rise to an approach to grassroots civil rights lawyering in which activist-lawyers sought to break down the distinction between legal advocacy and social activism.
The third and final phase of civil rights activism in Brown-Nagin’s account begins in the early 1970s when a group of social welfare activists, whose ranks were populated largely by poor African American women, took on the new black establishment. The civil rights movement had opened up significant space in Atlanta politics for black voices, and by the 1970s the most powerful of these voices was a coalition of black middle-class professionals and sixties-era student activists who were now moving into the political mainstream. One of the points being pressed by this new black establishment was that the LDF’s uncompromising drive to integrate schools was misguided, and that the focus should be on ensuring black control over the schools, which would lead to improved educational opportunity. This in turn led to a new divide within the black community, since many poorer African Americans were unwilling to give up on the integrationist ideal. The justification for integration embraced by social welfare activists during this period was thoroughly pragmatic: integration was valuable because it offered the best way to lift up the most desperate of Atlanta’s black children.
Courage to Dissent is an exemplar of historical excavation and analysis. Through her case study of Atlanta during the long civil rights movement Brown-Nagin gives voice to strands of racial reformism previously overlooked or dismissed. This book is a truly impressive accomplishment.
May 27, 2011 Alex B. Longworklaw
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.
Sperino provides a few examples of this approach, including the unwillingness to even consider the possibility of recognizing a claim of negligent discrimination. The courts’ unrelenting focus on fitting a claim within existing frameworks, Sperino argues, has blinded courts to the possibility that discrimination occurs in a variety of ways.
Similar problems exist with respect to workplace retaliation law. There, courts spend too much time trying to define a plaintiff’s conduct by reference to the statutory terms used to define protected conduct (opposing unlawful conduct, participating in a proceeding, filing a complaint, etc.) rather than looking to the underlying concerns that led to the prohibitions on employer retaliation in the first place. All too often, the results are the unnecessary expenditure of effort on the part of all parties involved and the dismissal of claims involving employer conduct that should clearly be prohibited. But at least in the retaliation context, the courts’ tendencies are driven by the need not to stray too far from the statutory text. In the discrimination context, however, the fault lies primarily with the courts, which are responsible for having devised the existing frameworks to begin with. Congress certainly bears its share of the blame for its failure to unify the law in the field. But the frameworks were initially developed by the courts, and it is the courts’ rote application of these frameworks that is Sperino’s primary concern.
There is already a wealth of scholarship devoted to exploring how McDonnell Douglas can be reconciled with Price Waterhouse and Desert Palace and Gross and Griggs and, oh yeah, where do the ADEA and ADA fit in to all of this? Some of it is quite good. But I increasingly find myself caring less about employment discrimination law primarily because the area increasingly seems to be less about employment discrimination. Instead, it seems to be more about what Sperino calls “litigating by frameworks.” (P. 27.) Sperino’s article represents a much-needed call to return to first principles. Instead of trying to make sense of the jumble of law that we call employment discrimination law, Sperino suggests a simpler approach that would refocus courts on what should be the fundamental question in every case: whether an employee suffered an adverse employment action because of a protected trait.
