Apr 5, 2011 Michael Froomkincourtslaw
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.
Although gentle critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details.
Reviews need not be written in a particularly formal manner. Contributors should feel free to write in a manner that will be understandable to scholars, practitioners, and even non-lawyers.
Ordinarily, a Jotwell contribution will
- be between 500-1000 words;
- focus on one work, ideally a recent article, but a discussion of a recent book is also welcome;
- begin with a hyperlink to the original work — in order to make the conversation as inclusive as possible, there is a strong preference for reviews to focus on scholarly works that can be found online without using a subscription service such as Westlaw or Lexis. That said, reviews of articles that are not freely available online, and also of very recent books, are also welcome.
Initially, Jotwell particularly seeks contributions relating to:
We also have a Classics section limited to reviews of works more than 50 years old. We intend to add more sections in the coming months.
References
Authors are responsible for the content and cite-checking of their own articles. Jotwell editors and staff may make editorial suggestions, and may alter the formatting to conform to the house style, but the author remains the final authority on content appearing under his or her name.
- Please keep citations to a minimum.
- Please include a hyperlink, if possible, to any works referenced.
- Textual citations are preferred. Endnotes, with hyperlinks, are allowed if your HTML skills extend that far.
- Authors are welcome to follow The Bluebook: A Uniform System of Citation (19th ed. 2010), or the The Redbook: A Manual on Legal Style (2d Ed.) or indeed to adopt any other citation form which makes it easy to find the work cited.
Technical
Jotwell publishes in HTML, which is a very simple text format and which does not lend itself to footnotes; textual citations are much preferred.
Contributors should email their article, in plain text, in HTML, or in a common wordprocessor format (Open Office, WordPerfect, or Word) to jotwell@gmail.com and we will forward the article to the appropriate Section Editors. Or you may, if you prefer, contact the appropriate Section Editors directly.
Apr 5, 2011 Michael Froomkincourtslaw
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.
Jotwell fills that gap. We are not be afraid to be laudatory, nor do we give points for scoring them. Rather, we challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We aim to be positive without apology.
Tell us what we ought to read!
How It Works
Jotwell is organized in sections, each reflecting a subject area of legal specialization. Each section, with its own url of the form sectionname.jotwell.com, is managed by a pair of Section Editors who have independent editorial control over that section. The Section Editors are also be responsible for selecting a team of ten or more Contributing Editors. Each of these editors commits to writing at least one Jotwell essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Our aim is to have at least one contribution appear in each section every month, although we won’t object to more. Section Editors will also be responsible for approving unsolicited essays for publication.
For the legal omnivore, the ‘front page’ at Jotwell.com contains the first part of every essay appearing elsewhere on the site. Links take you to the full version in the individual sections. There, articles are open to comments from readers.
The Details
Learn more about Jotwell:
Apr 4, 2011 Peter Shaneadlaw
Having taught some version of “separation of powers law” since 1982, I think I can say with some certainty that few problems of democratic accountability are more vexing than the general subject of “intelligence oversight.” For half a century, scandal after scandal has exposed an intelligence apparatus that is too often unreliable and susceptible to gross abuse.
Against this background, one might be forgiven a certain amount of pessimism for the future of reform. But it is not as if we are lacking for ideas. Samuel Rascoff’s article, Domesticating Intelligence, 83 S. Cal. L. Rev. 575 (2010), takes an especially thoughtful and creative approach with regard to domestic intelligence gathering, basically urging the application of familiar administrative law principles to achieve both “full compliance with the law, but also intelligence that is accurate, efficient, and useful to policymakers.” Professor Rascoff’s core argument is that “an expansive approach to cost-benefit analysis that [he refers] to as rationality review, judicial review, and public participation made possible by increased transparency ought to play significant roles in reconfiguring the governance of domestic intelligence.” Taking administrative law into this unaccustomed domain is an important scholarly contribution.
Professor Rascoff’s article begins by showing how the structures currently in place for preventing intelligence abuse are poorly positioned to do so, and how intelligence gathering operates with little prospect for either judicial review or meaningful day-to-day operational oversight. But, in a move that ought to be taken as a significant conceptual breakthrough, Professor Rascoff argues that the business of intelligence oversight has also been afflicted by a critical conceptual misdirection. That is, intelligence gathering has been thought of as something akin to criminal law enforcement, and reform efforts have focused on “on the prevention of illegality and the politicization of” the process. What Professor Rascoff urges is that domestic intelligence gathering be viewed as a form of quintessential administrative activity – namely, risk assessment – and that a governance regime ought to be developed for this administrative activity that aims not just to prevent abuse, but actually to produce good administration, i.e., good intelligence.
Insofar as Professor Rascoff’s governance regime relies on processes internal to the intelligence community, there is a real kinship between his approach and the “bureaucratic justice” framework within which Professor Mashaw urged us in the 1980s to understand and reform the activity of social security adjudication. Having myself deployed the Mashaw framework in recommending reforms for one familiar aspect of domestic intelligence – namely, the use of antiterrorist watch lists – I can only applaud Professor Rascoff’s essential insight (beautifully captured in his title). That is, we may not need to create exotic approaches to intelligence reform if we understand intelligence as part and parcel of the administrative state and apply, to its governance, carefully tailored tools of the sort we use to maintain the legality and effectiveness of other administrative activity.
Although it is impossible in a few words to do justice to Professor Rascoff’s multifaceted argument, I can highlight the core of his approach to each of the three key tools he recommends. First, he would have the Office of the Director of National Intelligence subject programs of domestic surveillance to a kind of rigorous cost-benefit analysis he calls “rationality review.” According to Professor Rascoff, “[R]ationality review would help promote more accurate and cost-effective intelligence. Second, and somewhat more controversially, … rationality review may actually prove to be a more effective tool for the protection of basic rights than the current governance regime. Third, … rationality review will help supply the methodological foundations of a centralized regulatory review process in the intelligence sphere akin to the role that OIRA has come to play in the regulatory state.”
Second, he would have internal rationality review policed by the courts: “At some regular interval after an agency has implemented a particular intelligence program (following successful rationality review), a court should review the agency’s program for fidelity to the agency’s own stated (and previously approved) objectives. In focusing on how the agency has implemented the intelligence program in practice, a court could determine whether, in view of empirical evidence, the actual costs and benefits of the program are roughly in line with those that were anticipated prior to the program’s implementation. Even more basically, the court could determine whether the agency was remaining true to the stated goals and limitations of the program’s mandate.”
Third, he would subject the regulation of intelligence gathering to some form of increased public input. Professor Rascoff mentions both the interest group vetting of the 2008 Attorney General’s Guidelines for Domestic FBI Operations and the prospect of external expert peer review of intelligence as suggesting possible directions. The core idea would be to subject the regulation of intelligence to something like the kind of pluralistic evaluation that is made possible in principle by the requirement of a public comment period for most agency regulations.
Serious questions obviously loom about all of this. I have previously been critical of what I think may already be our overreliance on cost-benefit analysis in more conventional contexts. Although Professor Rascoff offers many useful insights into how it might be designed in the intelligence context, his framework does not purport to offer a completely clear blueprint. Likewise, with regard to public input, the endorsement in principle falls short of a precise operational prescription. His discussion of judicial review does not address questions of standing and whether review of the kind he recommends is consistent with the role of Article III courts. And then, looming over all these recommendations is the obvious question: would they actually make a difference in improving agency performance and reducing actual abuse?
Nonetheless, Professor Rascoff’s article frames beautifully what ought to be a productive new discussion about the future of intelligence governance. Agency efficacy, accountability and fidelity to law are foundational themes in administrative law. Deploying administrative law insights to help strengthen intelligence gathering and keep it within legal confines is a compelling project that Professor Rascoff has launched with real – I have to say it – intelligence.
Mar 31, 2011 Angela Fernandezlegalhist
This terrific book, coloured hot pink, has a black-and-white photograph of the Toronto Women’s Court on its cover. The photograph is filled with a lot of men, at least a dozen, all wearing suits, and only two women. Where were the women lawyers, women judges, women clerks and bailiffs, not to mention the female defendants who occasioned the gathering of all this officialdom? The court had a male judge for its first eight years. The small number of women in the photograph and the initial lack of a female judge points to the same kind of contradiction Amanda Glasbeek’s book is most concerned to highlight, namely, the way that this movement to create a female-friendly space for the “right” kind of woman (young ones who had temporarily lost their moral compass and needed to be protected) ended up mostly coercing, disciplining, and punishing a very different kind of woman (e.g. older veterans with persistent drinking problems who were deemed effectively non-reformable).
The maternal feminists who brought the court into existence and eventually got their female magistrate, Margaret Patterson, to preside over it, are subjected to the kind of discussion that leaves no doubt in one’s mind about the kind of reform they intended and achieved, not one with a paradoxical or unintended outcome for some women but one, Glasbeek argues, that did precisely what was intended, namely, “to separate the erring from the hardened, the daughters from the daughters of the night, and the women in need of protection from the women from whom the city needed protecting” (p.176). It was “an ideal reflection of the politics of the middle-class, white feminists of the TLCW [the Toronto Local Council of Women]” (p. 13). These women were moralistic, usually racist, and used the law to further a state-sponsored evangelical mission. Patterson herself, a physician by training, had been a missionary in colonial India who worked with the Indian army on venereal disease (p. 38). This pretty much says it all: “sexually active women [were] a moral and physical danger” (p. 155).
Glasbeek shows that while the court might have brought a gentle “maternal” touch to the treatment of some young women, if they had the right kind of family background and could show the requisite contrition in something like a first-time shoplifting offence or a border-line vagrancy charge (e.g. being out late at night in the company of men), it slammed women defendants who challenged its authority (see Chapter 6 for dramatic examples of this) and brought down straight-forward coercive power on repeat offenders who were among the poorest and most marginalized (see Chapter 3). Most women charged with drunkenness, for instance, were over the age of thirty-five, overwhelmingly Roman Catholic, and worked as prostitutes from time to time (p. 120). It probably treated them more harshly than the regular system would have (see pp. 43-44, 150). The special “maternal” treatment women were supposed to receive did not work on the recidivists and indeed the coercion of “bad” women in the women’s court, those who did not comply or act appropriately deferential, “raised the possibility that feminized justice was unjust” (p. 170).
Patterson and the TLCW (was this acronym supposed to connote “tender, loving, care”?) argued that a separate court for women was needed in order to protect women from the prying eyes of men in the ordinary police courts, noisy, smelly places where women (at least the right kind of woman) would feel uncomfortable. Unsavoury men, they claimed, would attend and take down the names of women who appeared, marking down their length of sentence, meeting them when they came out of jail, and taking them down a road of immorality and vice (p. 2). The need to protect women from predatory men was also invoked in similar projects elsewhere, e.g. the establishment of a Women’s Court in Los Angeles (p. 33) and separate night courts for women in New York City (p. 34). This concern sounds a lot like a boogeyman from stock-in-trade white slavery arguments. Surely, institutionally and administratively, more minor measures than the establishment of a separate court for women could have been used to deal with this problem. And, indeed, it is probably telling that the standing committee of the TLCW most involved with the Women’s Court, the “Equal Moral Standard” committee had been called the “Equal Moral Standard and Prevention of Traffic in Women” committee in 1914 (p. 57).
Glasbeek has produced an extremely interesting and thought-provoking study for anyone interested in issues related to women-in-the-law, especially those related to women judges and whether they make a difference, the history of female crime and criminology, and generally good law-and-society legal history. My sense is that there was a period of time when feminist or feminist-friendly academics felt it was some kind of betrayal of path-breaking feminists to point out just how outrageous some of these early initiatives were. See, for example, Glasbeek’s discussion of what counted in this court’s estimation as “occasional prostitution” (see p. 97-98) or what could happen to you if you were arrested for petting in the park on a date (see p. 101). However, outrageous is not a characterization Glasbeek would use, as she is always very careful in the book to outline the logic of maternal feminist ideology without dismissing it outright. I take it that the choice in the title reflects Glasbeek’s judgment at the end of the day, feminized justice not feminist justice. This is far from anyone’s ideal feminist justice even if it was the (deeply flawed) product of the feminists of its day.
Mar 28, 2011 Paul Horwitzconlaw
Michael Stokes Paulsen,
Our Perfect, Perfect Constitution,
Constitutional Commentary (forthcoming 2011), available at
SSRN.
At the AALS conference this year, I was stung by a criticism a friend launched at Jotwell. Our mission, of course, is to bring the attention of busy readers to articles that the editors think are well worth the time. Well and good—but, this critic observed, most Jotwell reviewers pick articles they not only like, but agree with. They amount to statements that an article is good because it agrees with the reviewer’s own priors.
This is a natural human tendency, of course, but it’s still an apt criticism. A journal devoted to “Things We Like (Lots)” will be more interesting if the “Thing We Like” turns out to be something other than “Myself.” Suitably chastened, I have found my work for Jotwell significantly hampered. I would hate to be accused of writing these reviews as a form of amour propre. Vast numbers of articles that I have enjoyed in recent weeks have been rejected as review subjects because they have the unfortunate tendency to conform to my own (utterly sound) views on constitutional law. I have been searching for just the right piece: one that is enjoyable, interesting, and wrong. Thankfully, Michael Stokes Paulsen has come to my rescue.
Paulsen’s short and biting piece, Our Perfect, Perfect Constitution, is a model of its genre: constitutional scholarship as satire. (It is quite possible that most constitutional scholarship falls into this genre, although usually unwittingly.) Paulsen writes that he, like most constitutional scholars, has fallen into “a peculiar and aggressive strain of Stockholm Syndrome.” (P. 1.) After decades of criticizing the work of the courts, he writes, “I have, finally, succumbed. I now believe that everything in the U.S. Constitution is perfect. More than that, I have come around to the understanding that every Supreme Court interpretation of the Constitution is perfect as well.” (P. 1.) His job, then, is not to rewrite the Constitution as such, but to “update” it “to reflect, perfectly, the Supreme Court’s perfect interpretations of it.” (P. 1.) And so he does, in what he labels a “pocket part” that includes “not only what the Constitution says but also what it really means” according to the Supreme Court. (P. 1.)
Paulsen’s conforming amendments are generally well-chosen and amusing, if a little sour. Here are some examples. He writes: “Article I, Section 1, Clause 1 is amended to delete the words ‘herein granted.’ It shall hereafter read: “All legislative powers shall be vested in a Congress of the United States.” (P. 2.) He adds: “The Tenth Article of Amendment to this Constitution is repealed.” (P. 2.) And: “The doctrine of stare decisis being fundamental to the rule of law, to public perceptions of the integrity of the Supreme Court, and to stability, predictability and reliability, [the] Supreme Court shall always adhere to its prior constitutional decisions, except when it decides not to do so.” (P. 5.) He clarifies the Free Exercise Clause: “Government may destroy Native American traditional religious holy sites in America, without thereby burdening the free exercise of site-specific Native American religious observance, because we stole their land fair and square.” (P. 7.) And the Establishment Clause: “This Constitution shall be construed to forbid the display on government property of Christmas nativity scene displays depicting the birth of Jesus, unless the display includes elves and a talking wishing well.” (P. 8.)
Constitutional scholars and law students alike will recognize these and other examples, which of course are not so much a list of amendments as a bill of particulars. Like many constitutional law teachers, I devote at least one class early in the semester to a detailed examination of the text of the Constitution; and like most of my colleagues, I tell my students that this will be virtually the last time we devote much attention to the text, as opposed to the centuries of glosses the Supreme Court has put on the text. Paulsen’s short article is a lovely illustration of this phenomenon. It would be excellent assigned reading at the end of the semester, to remind students (and professors) of just how much of their time has been devoted to the Supreme Court Reports, and how little to the constitutional text itself. The pungency with which Paulsen’s satire offers this reminder is ample reason to recommend it.
That’s not to say I agree with it. In demonstrating how little the Constitution, as we understand it today, has to do with what he apparently sees as its barer and simpler meaning, Paulsen evidently means to suggest to readers that the only question left is whether to laugh or cry. I don’t see why either is required. One hardly need believe that either the Constitution or the Supreme Court’s glosses on it are perfect to think it unexceptional, even banal, that the document must be interpreted, and that those interpretations will involve a mix of history, tradition, policy, and politics. Only a naïf would be shocked—shocked!—to learn that constitutional law, like war, is politics by other means. The voice of the naïf—Paulsen’s voice, in this piece—is, of course, the voice of satire. But satire is the beginning of wisdom, not its end.
And at times it is difficult to discern what lies beneath the satire. If ours is neither a “perfect” nor a “perfect, perfect Constitution,” what does Paulsen think the proper interpretation of the text demands? It is, as far as I can tell, sometimes textualist, sometimes originalist, sometimes policy-driven, and sometimes none of the above. Paulsen mocks the Supreme Court’s decision in Employment Division v. Smith for permitting laws penalizing the exercise of religion provided that “they are cast in facially neutral terms”—a criticism I share—but without demonstrating that the Free Exercise Clause means, or is meant to mean, something else. He derides free speech jurisprudence for protecting flag burning while permitting the enjoining of protests outside abortion clinics, but doesn’t say which understanding is better as a matter of text or history. He criticizes the Supreme Court’s Equal Protection Clause jurisprudence for not categorically banning race-based distinctions, but without any acknowledgment of the historical pedigree supporting ameliorative race-based distinctions. He thinks the Court is wrong not to enforce broad semi-textual postulates like those of limited and enumerated congressional power and reserved state power, but equally wrong to enforce broad semi-textual postulates like “liberty.” And he is selective in his examples. A satire on constitutional interpretation that devotes hundreds of words to abortion and not one to the Eleventh Amendment is an oddly unbalanced one.
I am struck by one last irony. The view implied in this satirical piece seems to be that the Supreme Court, with our complicity, has rendered our Constitution ridiculous by offering endless glosses intended to make it “perfect,” when we could have either remained loyal to the text or amended it by duly authorized means. But Paulsen has written elsewhere that the Constitution ought to be interpreted according to a “meta-rule of construction,” vested in the Executive Branch with some judicial oversight, that is intended to preserve “the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions.” Michael Stokes Paulson, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1257-58 (2004). There “simply must,” he has written, “be power in the national government to preserve the constitutional order; it is inconceivable that the Framers would have neglected such considerations.” Id. (Fans of The Princess Bride will doubtless remember what was said there about the word “inconceivable.”) So it is apparently ridiculous to think our Constitution is perfect, except when it isn’t; ridiculous to think we couldn’t use Article V to improve the Constitution, except when we needn’t bother; and ridiculous to give one constitutional actor primary responsibility for seeing to the Constitution’s perfectability, unless that actor is the President. Like most of us, Paulsen hates “perfect” constitutions—sometimes.
Don’t get me wrong: I do like this article. I’m grateful to Paulsen for a witty, if bitter, reminder of just how much of a potential gulf there is between our Constitution and our constitutional law, and for the reminder that whatever else we might call this process, “perfect” is the wrong word. I’m doubly grateful to him for helping Jotwell to stymie its critics. It is possible to like an article while thinking it is wrong—lots.
Mar 24, 2011 Laurel Terrylegalpro
Ellen Yaroshefsky,
Foreword to Symposium,
New Perspectives on Brady and Other Disclosure Obligations: What Really Works?, 31
Cardozo L. Rev. 1943 (June 2010),
available at SSRN.
For years, Ellen Yaroshefsky of Cardozo Law School has been one of the leading scholars in the U.S. on issues related to legal ethics and the criminal defense system. In an era in which legal scholars are sometimes accused of writing theoretical works that are of little practical use, she has a track record of successful applied scholarship. Her voice has made a difference. For example, after working on the issue in New York, Ellen Yaroshefsky and Fordham Professor Bruce Green signed the report from the ABA Committee on Ethics, Gideon and Professionalism that recommended that ABA the Section on Criminal Justice sponsor a resolution in the ABA House of Delegates to add Rules of Professional Conduct 3.8(g) and (h). The resulting resolution, which was supported by a number of entities, was adopted. As a result, ABA Model Rule 3.8 now imposes disclosure duties on prosecutors who know of “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted” and requires prosecutors to “seek to remedy the conviction” if they have clear and convincing evidence that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit. This ABA Model Rule change has led to a number of concrete state rule changes that impose new duties on prosecutors. As of January 2011, two states had adopted the proposed revisions to Rule 3.8, three states had adopted a modified version of Rules 3.8(g) and (h), and eleven jurisdictions were studying the ABA resolution and report. I predict that many of these jurisdictions are likely to adopt Rules 3.8(g) and (h), which is what the relevant entity in my home state of Pennsylvania recently recommended.
The 2010 Cardozo Symposium entitled “New Perspectives on Brady and Other Disclosure Obligations: What Really Works” is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law. Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system. This is a broader problem than one might realize. For example, in 2010, the International Bar Association, the Organization of Economic Cooperation and Development, and the United Nations Office on Drugs and Crime jointly developed a survey on “Risks and Threats of Corruption in the Legal Profession.” The Survey was distributed to IBA member and 642 professionals from 95 countries responded. Although the Survey cautioned that its results might not be statistically significant, it also stated that the Survey represented “a first attempt to shed light” on issues that included the legal profession’s perception of corruption in their own jurisdiction. Nearly half of the respondents stated that corruption was an issue in the legal profession in their own jurisdiction. Approximately 20% of the responding lawyers from the U.S. and Canada thought corruption was an issue in the legal profession in their country. (This contrasts with approximately 15% of lawyers in Australasia, 32% of lawyers in the EU, and 90% of lawyers in the Commonwealth of Independent States.)
As a member of the U.S. legal profession, I found the survey results quite disheartening since they showed that lawyers in more than fifteen jurisdictions found that corruption was less of a problem for their legal profession than did U.S. lawyers. (Lawyers from 20 jurisdictions (including the U.K.) believed that corruption was more of a problem than did U.S. lawyers.) The Cardozo Symposium is important because it represents a positive effort to remedy problems in our legal system that might undermine societal confidence in the rule of law. All members of society, but especially the legal profession, have a large stake in this effort. So even if you don’t read anything else in the entire Symposium, you owe it to yourself to read Professor Yaroshefsky’s twelve page Foreword which summarizes the Symposium contributions.
Professor Yaroshefsky’s Foreword begins by pointing to several high-publicity cases that involved the failure to disclose fundamental exculpatory evidence to the defense, including the reversal of the prosecution of Senator Ted Stevens that led the U.S. Department of Justice (DOJ) to undertake an examination of its disclosure policies and practices. The Symposium was based on the premise that there is a lack of clarity about the meaning of the U.S. constitutional “Brady obligation,” which requires prosecutors to disclose exculpatory evidence to the defense counsel and a lack of clarity about the timing requirements for this disclosure obligation. The Foreword observed that prosecutors and defense counsel also disagree on the scope of the problem and that empirical research is difficult. Accordingly, the Symposium’s goal was to shift the conversation from individual, blame-based rhetoric to one of working in concert to examine systemic change that would improve the disclosure process.
As the Foreword explains, seven organizations co-sponsored the Symposium, including three law schools, the National District Attorneys’ Association, the National Association of Criminal Defense Lawyers, the ABA, and the Justice Center of the New York County Lawyers’ Association. The sponsors sought the attendance and participation of prosecutors, judges, defense lawyers, and academics from throughout the country. The organizers asked the speakers to offer ideas from their discipline and practice areas on how to improve–and what lessons could be adapted to–the disclosure processes of the criminal justice system. Professor Yaroshefsky’s Foreword summarizes the remarks by the six morning speakers and four afternoon speakers, who were a diverse, interdisciplinary group that included two district attorneys, one defense counsel, and experts in medical errors, cognitive psychology, information management in police practices, organizational and psychology assessment tools, institutional design, and education and metrics of evaluation. Although the Foreword explains that both the morning and the afternoon session were following by responses from a panel that included prosecutors, defense counsel and judges, it did not summarize those panel remarks. It did, however, summarize – albeit briefly – the remarks of Manhattan District Attorney-elect Cyrus Vance and the reports of the six Working Groups, which sought to develop “best practices” on the topics of prosecutorial disclosure obligations and practices, the disclosure process, training and supervision, systems and culture, internal regulation, and external regulation. Finally, the Foreword presents the highlights of thoughtful articles by Rachel E. Barkow, Alafair S. Burke, Lawton Cummings, Bruce Green, Daniel S. Medwed, and Barry Scheck. And you get all of this in only twelve pages! Even if you do not study criminal justice issues, you should read the Foreword in order to develop a better appreciation of issues that are critical to the rule of law and to see additional examples of how systemic, ex-ante approaches (analogous to those described by other Jotwell contributors) can be used when designing legal systems and rules.
Mar 21, 2011 Dennis Pattersonjuris
Globalization has produced transnational legal phenomena in need of theorizing. From this observation flow several questions about transnational legal phenomena such as private legal orders (e.g., ICANN, UDRP, Bernstein (1992) on diamonds), federal norms (e.g., EU law), international law that is not the product of treaties (e.g., lex mercatoria or the norms produced by the WTO appellate body), soft law and international arbitration (ADR). How should legal theorists make sense of these disparate yet related phenomena?
If we are to theorize these phenomena, what form should such theorizing take? This is the question taken up by Calliess and Renner. As they see it, the answer to the question of “global governance” is a mixture or blend of legal theory/jurisprudence and social science (here law and social norms). Each approach asks a different question. From the point of view of legal theory, the question is “analytical” (their word): how to differentiate legal from non-legal norms? Thus stated, the question is familiar to analytically minded legal theorists. The second dimension is advanced in the form of a challenge, which they state thus: “[T]he most pressing demand on contemporary jurisprudence is to make legal concepts compatible with those of the social sciences without at the same time losing sight of the very own purpose of legal thinking, i.e., the normative analysis of legal structures.” (p. 262)
There exists a distinct tension between social science approaches to law and more traditional jurisprudential (think Kelsen 1945 or Hart 1997) accounts of the nature of law. The law and social norms approaches (e.g., Macaulay 1963; Bernstein 1992; Williamson 2005) stress the “interrelatedness or even interchangeability of legal and social norms.” (p. 264) In a sense, the social science perspective sees the world as “norms all the way down,” with law enjoying no special place in the whirl of normativity. Calliess and Renner think the emphasis on social science, particularly the exclusion of an analytical framework for law, misses a central feature of legal norms, that of its rationality (Fried 1981).
How to integrate these two perspectives? The authors look to Systems Theory (Luhmann 2004 and Teubner 2004), embracing a functionalist account of legal norms that motivates their theory of law as an evolutionary normative system. The job of law is to stabilize expectations. The “governance” in “global governance” is accomplished in law through self-referential stabilization which results from two factors: (1) an impartial dispute resolution procedure, and (2) the publication of past decisions.
Calliess and Renner are right about the need to integrate traditional jurisprudential approaches to law with the tools of social science. Law arises beyond the nation state. We may be able to explain why transnational legal phenomena arise (the answer is globalization) but it remains unclear how best to theorize these new phenomena as “law.” This is the next big challenge in legal theory. This article is not perfect in its explication of an analytical account of the nature of law. But Calliess and Renner are asking the right questions. Their attempts to answer these questions are worth close consideration
References:
Bernstein, Lisa, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. Leg. Stud. 115–57 (1992)
Fried, Charles E., The Artificial Reason of the Law or: What Lawyers Know, 60 Tex. L. Rev. 35–58 (1981).
Hart, H.L.A., The Concept of Law ( Clarendon rev. ed., 1st ed. 1961).
Kelsen, Hans, General Theory of Law and the State (A. Wedberg ed., Harvard University Press 1945).
Luhmann, Niklas, Law as a Social System (K.A. Ziegert trans., Oxford, 2004, 1st ed. in German 1993.)
Macaulay, Stewart, Non-Contractual Relations in Business: A Preliminary Study, 55 Am. Soc. Rev. 86–104 (1963).
Teubner, Gunther, Societal Constitutionalism: Alternatives to State-centred Constitutional Theory? in Transnational Governance and Constitutionalism 3-28 (C. Joerges, I.-J. Sand, and G. Teubner ed., Oxford: Hart, 2004).
Williamson, Oliver E., The Economics of Governance, 95 Am. Econ. Rev. 1-18 (2005).
Mar 17, 2011 Kerri Stoneworklaw
Susan Grover & Kimberley Piro, Consider the Source: When the Harasser is the Boss, 79 Fordham L. Rev. 499 (2010).
In Consider the Source: When the Harasser is the Boss, Professor Susan Grover and Kimberley Piro raise a crucial point that should inform the always-evolving jurisprudence of sexual harassment. They argue that the identity of a sexual harasser as a supervisor or a coworker should be, but is currently not, a central consideration in the determination of whether actionable sexual harassment occurred. The article recounts the Supreme Court’s requirement that actionable harassment needs to be, among other things, “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Despite this requirement, the article observes, most sexual harassment jurisprudence fails to factor in the distinction between supervisory and other types of harassment, like coworker harassment, when ascertaining whether a victim’s abuse is grave enough to warrant being deemed actionable harassment.
Courts adjudicating sexual harassment cases are required to factor in the totality of the circumstances surrounding the interactions at issue, focusing on the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Lower courts nationwide, however, have repeatedly refused to find actionable harassment where the abuse was quite severe or quite pervasive. The article notes insightfully that “[t]he crucial question of the harasser’s supervisory status has been one casualty of the courts’ disinclination to apply a true totality of the circumstances test.” (P. 507.)
To be sure, the delineation between supervisors as harassers and coworkers as harassers is clear and marked in the context of agency liability determinations. Supervisory harassment engenders automatic employer liability, absent the availability or applicability of an affirmative defense, whereas coworker harassment only does so where there is employer negligence in identifying and correcting the problem. However, the article incisively points out, the initial determination that the complained-of abuse qualifies as actionable harassment should take its source into account, but fails to. Most useful is a survey the authors provide of cases in which supervisory harassment that should, by all accounts, be deemed severe or pervasive, is not. While the facts in these cases are most egregious, the result of their being deemed nonmeritorious is apparently commonplace. Moreover, the courts’ indifference to the identity of the perpetrator of the harassment is evident as they do things like relying upon precedent that deals with coworker harassment cases when adjudicating the issue of severity or pervasiveness in supervisory harassment cases.
The point raised here is powerful and wholly logical—and yet it has been overlooked by judges over time and across jurisdictions. The same taunting and abuse that may fall short of demonstrably and sufficiently altering a plaintiff’s terms and conditions of employment almost invariably intones an additional message of threatening hostility when it comes from a supervisor. Even more compelling, but overlooked by courts, is the critical difference in severity between being physically assaulted by a coworker and being physically attacked by a supervisor.
Structuring their argument around what they term the three primary sources of exacerbation of supervisory, as opposed to coworker harassment – power differential, authority/fiduciary factors, and locus in the hierarchy – Grover and Piro submit that ultimately, the ability of a supervisor to assess, evaluate, reward, and discipline a subordinate invariably tinges any abuse that he inflicts with a level of perniciousness not found in coworker abuse. Considering a supervisor’s unique and demonstrated ability to have an impact upon both a subordinate’s reputation and professional self image, coupled with the subordinate’s need to have regular and positive contact with his or her supervisor, conspire to further render a harasser’s identity crucial in discerning the severity and the pervasiveness of abuse. The authors further posit that because a supervisor sets the tone in a given workplace, abuse at his hands will likely be emulated by others and viewed as ratification of others’ mistreatment of his target. Again, the ubiquity of one’s supervisor renders his abuse more pernicious than it would otherwise be. As an assumed fiduciary and role model in the workplace, each of the supervisor’s words and actions is imbued with magnified significance and power.
Moreover, both research data and common sense bolster the assertion that victims experience harassment at the hands of a supervisor differently than they experience it at the hands of a coworker, with most supervisory harassment victims left feeling more debilitated and more reluctant to confront the perpetrator and protest the treatment. The authors conclude that charged with evaluating the totality of the circumstances in ascertaining the presence of actionable harassment, the only way truly to assess a victim’s total experience is to factor in the “special power that supervisors possess to harm subordinates.” (P. 513.) In terms of pervasiveness, a supervisor’s influence and control over the physical workplace and over an employee’s terms and conditions of employment render his abuse nothing short of pervasive to his employee target, who cannot escape or ignore the reach of his words and actions, in both a literal and a figurative sense.
Thus, the article submits, harasser identification should be given a central role, if not primacy, in both the analysis as to whether actionable harassment occurred and that as to whether liability may be properly imputed to the defendant employer. It is scholarship like this article that makes the sharp and nuanced points needed to refine and advance jurisprudence in the always-evolving area of employment discrimination jurisprudence. All too often, poor results are reached in cases because blanket assumptions about the content of relevant frameworks or analyses rest unchallenged or unexamined. Provocative exhortations like those contained in this article are needed to impel judges to be more thoughtful and to come to more just determinations.
Mar 14, 2011 Iris Goodwintrustest
A cursory perusal of Richard Hyland’s Gifts: A Study in Comparative Law (2009) reveals a massive work of such erudition that the twenty years Hyland admits he devoted to it seems neither surprising nor, indeed, unreasonable. Gifts not only manages to do yeoman’s work for the practicing attorney—providing six chapters that survey the essential aspects of the substantive law of gifts in three common law and five civil law jurisdictions—but this work is likely to change the terms of future discussion about the gift among comparativists and other scholars in the humanities and social sciences. Demanding though this work is, however, the material remains thoroughly accessible. Written in prose that is a model of concise lucidity, the work will engage someone who picks it up and reads a section or two. But the book is ultimately a page-turner and anyone who absorbs one section is likely to succumb to its richness and turn to the beginning, reading the book as it ultimately demands to be read—from cover to cover.
The bulk of the work consists of six chapters that survey the law in the common law jurisdictions of England, the United States, and India, as well as the civil law jurisdictions of Germany, Italy, Spain, France, and Belgium. In addition, Hyland frequently gilds the lily with Roman, medieval, and early modern antecedents, especially where the law encompasses exception layered upon exception, only explicable—Hyland argues—as the excrescence of centuries of legislative tweaking.
Notwithstanding the richness of these chapters on the substantive law, however, it is Hyland’s first chapter—“The Context of Gift Law”—that lends intellectual force to the substantive material and ultimately makes the work compelling. Whether in the common law or the various civil law regimes examined in this ambitious work, the law of gifts, Hyland points out, is little more than a litany of case-specific judgments that “boil down” to a maze of rules and exceptions. The incoherence, indeed the irony, that permeates the substantive law invites application of a sophisticated comparativist methodology to render the law intelligible. Rising to the challenge, Hyland takes up the mantel of Marchel Mauss. The ground-breaking 1924 monograph, Essai sur le don (translated as The Gift (1954[/note], maintained that the gift is parasitic upon numerous social institutions. Embracing Mauss, Hyland assembles massive research to argue that gift giving is above all a social practice that, like language, emanates from the social bedrock fully formed. Born independently of the law and flourishing outside of it, gift giving is not easily subsumed within any legal rubric.
But Hyland goes further. By his reckoning, not only does the practice of gift giving have little need of the law, but the law that is ultimately brought to bear on it—the private law—is ill-suited to the subject. The private law is devised to facilitate market-related activities with the prototypical transaction being an explicit, rationally self-interested quid pro quo, cognized in a contract. Unsurprisingly, then, the private law subsumes the gift as an afterthought, defined maladroitly, usually by reference to the contract—often as that social interaction that fails to qualify as a contract (for example, under the common law, where a gift is a transfer that lacks consideration).
Western gift law can then be understood only as a critique of gift giving. The law can offer only the perspective of individual self-interest on activities embedded in the web of social custom. For anyone interested in the law of gifts, all that can be said is that, for any Western legal regime, the gift serves as a Rorschach test with respect to certain fundamental values: “The way each system chooses to order gift giving, and especially the extent to which it favors or restricts the process, speaks to that system’s understanding of gratuitous action and its vision of social relationship.”
Hyland leaves the reader hanging in one significant respect, however — that is, in whether gift giving ultimately serves the common good. In the final analysis, Hyland’s interest in the gift is in its role—both as a challenge and an opportunity— vis-à-vis the private law. His hope is that insight into the law of gifts will propel the private law forward, into an era in which it will transcend its role as the primary vehicle by which the normative foundations of the market are secured. What is missing in a work that is otherwise a masterpiece of comparative law scholarship, however, is a clear articulation of the role of the gift, beyond serving as a midwife in the freeing of the private law. Indeed, this book contains more than an undercurrent of an idea that the gift must always confound the law. What Hyland does not address is whether a practice that gives voice to personal predilections, validates the idiosyncratic, and lends legitimacy to private orderings must always push back against all but the most libertarian legal order.
In the face of this extraordinary scholarly and erudite book, however, such concerns are mere afterthoughts emanating from the penumbra of the work. What Hyland makes very clear is that neither the true value of the gift nor the essential attributes of different types of gifts can be discerned until we disencumber the gift from the shackles of quid-pro-quo jurisprudence. At this stage in the development of what Hyland terms “the collective fabric of justification,” however, we only can congratulate him on twenty years well spent and thank him for the judicious application of his time and talent.
Mar 10, 2011 Sarah Woocorp
Kenneth Ayotte & David A. Skeel, Jr.,
Bankruptcy or Bailouts?, 35
J. Corp. L. 469 (2010),
available at SSRN.
As we try to learn the right lessons from the 2008 financial crisis, a debate has emerged as to the merits of bailouts versus bankruptcy. Although the chaotic days when Lehman and AIG were failing are starting to fade into financial history, ongoing news on European bailouts reminds us that this debate is still very much alive. Bankruptcy or Bailouts by Kenneth Ayotte and David Skeel, provides an excellent Law and Finance discussion that unpacks the key issues of moral hazard underlying rescues of financial institutions and the systemic risk considerations. They identify cases where bankruptcy has been surprisingly effective, discuss how it avoids various distortions resulting from bailouts, and challenges the common view that Chapter 11 bankruptcy is an inappropriate vehicle for resolving distress in financial institutions.
This article confronts head-on the difficulties in this area – the difficult choices for policymakers, and the difficulty in establishing causality between past events (e.g., the Lehman filing and the AIG bailout) and the volatility and illiquidity in the market. As Ayotte and Skeel remarked, questions such as whether a Lehman rescue loan could have reduced the severity of the financial crisis that followed are “impossible to answer with certainty.” (P. 490.) They then proceed to present some data, which provides us reason to be skeptical about the conventional wisdom that Lehman’s Chapter 11 filing was the singular cause of the resulting credit crunch.
Given these difficulties, it is interesting to contrast this article with another recent paper, In Defence of Bailouts, by Adam Levitin, where systemic risk is described in terms of political accountability and legitimacy. It appears that Ayotte and Skeel differed from Levitin on whether moral hazard and systemic risk are minimized (or can be minimized) in a bailout versus in bankruptcy. In particular, Levitin argued that a bankruptcy court may not be capable of deciding upon (and enforcing) the politically acceptable distributional outcome, especially if there are systemic implications. This is consistent with what George Akerlof and Robert Shiller opined in Animal Spirits (2009) – that the creditors’ focus in bankruptcy proceedings is mainly on the institution in question and there needs to be a reconsideration of bankruptcy law to take special account of the fact that the public has an interest in such distress situations.
Nonetheless, the article by Ayotte and Skeel has complicated the usual assumption that nothing good can come from the bankruptcy of a large financial institution through an examination of the firm-specific costs, corporate governance distortions, and downsides of the prompt corrective action approach by regulators. They have made a convincing argument that the bankruptcy regime should play a role in resolving financial institution distress with a handful of changes, especially those pertaining to derivatives. There is, however, an open issue that we are reminded of by their article: the 900,000 derivative contracts to which Lehman was a counterparty. An issue, seldom discussed in this debate but one that can affect our assessment of the choice between bankruptcy and bailouts, is the extent of public disclosure in bankruptcy, as compared to bailouts. Just as a bank’s supervisory CAMELS ratings are kept confidential to prevent a bank’s customers and investors from losing confidence and potentially mounting a bank run, significant counterparty exposures to financial institutions disclosed in bankruptcy dockets could have spillover effects in terms of affecting market confidence in these counterparty institutions.
Flexibility and open-mindedness would seem to be the best course, and this is a recurring theme in this article. Ayotte and Skeel have adopted a realistic position in stating that “[i]f regulators conclude that systemic risk concerns are so great that intervention is necessary, [regulators] could use an intermediate strategy of allowing the firm to file for bankruptcy, while selectively guaranteeing certain ‘dangerous’ liabilities as an alternative to a rescue loan.” (P. 491.) At the end of the day, Ayotte and Skeel are essentially advocating Bankruptcy 2.0, where there may be pockets of government intervention alongside the bankruptcy regime, as opposed to the oft-cited view of bailouts without bankruptcy being an inevitable part of modern financial markets.
