Monthly Archives: December 2016

Recognizing Disgust, Repudiating Exile

Sara K. Rankin, The Influence of Exile, 76 Md. L. Rev. (forthcoming 2016), available at SSRN.

The discourse of poverty law in the United States is on the rise. Following the Great Recession of December 2007 to June 2009, the odd yet telling disparagement of “law and poverty” by the late Antonin Scalia in September 2008, and the Occupy Wall Street protests that erupted into public consciousness in September 2011, poverty law scholars have published three new casebooks, organized a new series of conferences hosted by law schools in California, Washington, and Washington, D.C., contributed to the theme for other ongoing conferences such as ClassCrits (Toward A Critical Legal Analysis of Economic Inequality), and assembled in well-attended panels at the annual meeting of the Association of American Law Schools.

In The Influence of Exile, Sara K. Rankin, associate professor of law and director of the Homeless Rights Advocacy Project of the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law, contributes to that discourse by theorizing “the influence of exile”—the well-documented drive to exclude disfavored groups of people by restricting their rights to access and occupy public space. (Pp. 1-2.) The influence of exile has taken myriad forms throughout United States history (e.g., Slave Codes, Black Codes, anti-miscegenation laws, and Jim Crow regimes; Asian exclusion laws, Mexican “repatriation” campaigns, and Anti-Okie laws; redlining regulations, policies, and practices; and “Sundown Town” policies and practices), but Rankin argues persuasively that the influence of exile perseverates today in a distinctive “social-spatial segregation [that] further entrenches stereotyping, misunderstanding, and the stigmatization of marginalized groups.” (P. 11.) Her article abounds with insights into these matters. Here I discuss three of them—the visible poor; sociolegal control of public space; and disgust, affect, and ideology. Continue reading "Recognizing Disgust, Repudiating Exile"

Recognizing Disgust, Repudiating Exile

Sara K. Rankin, The Influence of Exile, 76 Md. L. Rev. (forthcoming 2016), available at SSRN.

The discourse of poverty law in the United States is on the rise. Following the Great Recession of December 2007 to June 2009, the odd yet telling disparagement of “law and poverty” by the late Antonin Scalia in September 2008, and the Occupy Wall Street protests that erupted into public consciousness in September 2011, poverty law scholars have published three new casebooks, organized a new series of conferences hosted by law schools in California, Washington, and Washington, D.C., contributed to the theme for other ongoing conferences such as ClassCrits (Toward A Critical Legal Analysis of Economic Inequality), and assembled in well-attended panels at the annual meeting of the Association of American Law Schools.

In The Influence of Exile, Sara K. Rankin, associate professor of law and director of the Homeless Rights Advocacy Project of the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law, contributes to that discourse by theorizing “the influence of exile”—the well-documented drive to exclude disfavored groups of people by restricting their rights to access and occupy public space. (Pp. 1-2.) The influence of exile has taken myriad forms throughout United States history (e.g., Slave Codes, Black Codes, anti-miscegenation laws, and Jim Crow regimes; Asian exclusion laws, Mexican “repatriation” campaigns, and Anti-Okie laws; redlining regulations, policies, and practices; and “Sundown Town” policies and practices), but Rankin argues persuasively that the influence of exile perseverates today in a distinctive “social-spatial segregation [that] further entrenches stereotyping, misunderstanding, and the stigmatization of marginalized groups.” (P. 11.) Her article abounds with insights into these matters. Here I discuss three of them—the visible poor; sociolegal control of public space; and disgust, affect, and ideology. Continue reading "Recognizing Disgust, Repudiating Exile"

Chevron’s Origin Story

Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. (forthcoming 2017), available at SSRN.

In his concurrence in Perez v. Mortgage Bankers, Justice Scalia reiterated his historical justification for Chevron deference (first articulated in his Mead dissent): “the rule of Chevron, if it did not comport with the [Administrative Procedure Act], at least was in conformity with the long history of judicial review of executive action, where ‘[s]tatutory ambiguities . . . were left to reasonable resolution by the Executive.’” In a must-read article forthcoming in the Yale Law Journal, Aditya Bamzai casts serious doubt on Justice Scalia’s (and many others’) understanding of Chevron’s origin story.1

There is so much to like about this article, and one should really read the full article. But I’ll highlight four main takeaways. Continue reading "Chevron’s Origin Story"

Chevron’s Origin Story

Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. (forthcoming 2017), available at SSRN.

In his concurrence in Perez v. Mortgage Bankers, Justice Scalia reiterated his historical justification for Chevron deference (first articulated in his Mead dissent): “the rule of Chevron, if it did not comport with the [Administrative Procedure Act], at least was in conformity with the long history of judicial review of executive action, where ‘[s]tatutory ambiguities . . . were left to reasonable resolution by the Executive.’” In a must-read article forthcoming in the Yale Law Journal, Aditya Bamzai casts serious doubt on Justice Scalia’s (and many others’) understanding of Chevron’s origin story.1

There is so much to like about this article, and one should really read the full article. But I’ll highlight four main takeaways. Continue reading "Chevron’s Origin Story"

Chevron’s Origin Story

Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. (forthcoming 2017), available at SSRN.

In his concurrence in Perez v. Mortgage Bankers, Justice Scalia reiterated his historical justification for Chevron deference (first articulated in his Mead dissent): “the rule of Chevron, if it did not comport with the [Administrative Procedure Act], at least was in conformity with the long history of judicial review of executive action, where ‘[s]tatutory ambiguities . . . were left to reasonable resolution by the Executive.’” In a must-read article forthcoming in the Yale Law Journal, Aditya Bamzai casts serious doubt on Justice Scalia’s (and many others’) understanding of Chevron’s origin story.1

There is so much to like about this article, and one should really read the full article. But I’ll highlight four main takeaways. Continue reading "Chevron’s Origin Story"

Testing Feed Template from Zeta3

**UPDATE**: Lorem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the industry’s standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only five centuries, but also the leap into electronic typesetting, remaining essentially unchanged. It was popularised in the 1960s with the release of Letraset sheets containing Lorem Ipsum passages, and more recently with desktop publishing software like Aldus PageMaker including versions of Lorem Ipsum

Testing Feed Template from Zeta3

**UPDATE**: Lorem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the industry’s standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only five centuries, but also the leap into electronic typesetting, remaining essentially unchanged. It was popularised in the 1960s with the release of Letraset sheets containing Lorem Ipsum passages, and more recently with desktop publishing software like Aldus PageMaker including versions of Lorem Ipsum

Discovery Costs and Default Rules

Brian T. Fitzpatrick & Cameron T. Norris, One-Way Fee Shifting After Summary Judgment (2016), available on SSRN.

In One-Way Fee Shifting After Summary Judgment, Brian Fitzpatrick and his student, Cameron Norris, address what has been the dominant impulse in federal procedural reform for the past thirty-five years: reducing cost and delay in civil litigation.

The most recent effort to curb litigation expense — the 2015 amendments to the Federal Rules of Civil Procedure that, among other things, sought to invigorate the concept of proportional discovery expenditures that had first found its way into the Rules in 1983 — has been widely criticized as feckless. Switching the proportionality requirement from (principally) Federal Rule 26(b)(2) to (principally) Federal Rule 26(b)(1) and then eliminating “subject matter” discovery seem to be little more than moving the deck chairs on the Titanic, given that judges have no more tools in 2016 to determine whether discovery is proportional than they had in prior years, and “subject matter” discovery was minimal at best. Continue reading "Discovery Costs and Default Rules"

Copyright Law’s Origin Stories

Shyamkrishna Balganesh, The Questionable Origins of the Copyright Infringement Analysis, 68 Stan. L. Rev. 791 (2016).

One particularly engaging genre of legal scholarship is the deep historical dive into an appellate opinion that has become a classic in a field. In volumes such as Torts Stories, Contracts Stories, and Intellectual Property Stories, scholars resurrect the history leading to landmark cases: the cast of characters involved in the dispute, the lower court wrangling that led to the more famous appeal, the aftermath of the case, and the lasting impact of the court’s opinion.

While we must constantly remind ourselves that each case we analyze or teach involves real individuals with real disputes that affected real lives, there is a certain fictional quality to these stories precisely because the judicial opinion is the lead character. Judicial opinions can never be more than an abstract, a description of events that then becomes the accepted narrative. Paul Robert Cohen’s expletive-bearing jacket was expression serving an “emotive function,” according to the Court, not an “absurd and immature antic,” as the dissent would have it, and that made all the difference. Opinions have authors, and authors are necessarily engaged in a project of crafting narratives with a result in mind.

Yet knowing more about how an opinion came to be does give us a richer understanding of its context and, perhaps, some guidance on how to interpret the opinion going forward. This is the project that Shyamkrishna Balganesh undertakes in his compelling and entertaining article The Questionable Origins of the Copyright Infringement Analysis. Continue reading "Copyright Law’s Origin Stories"

Copyright Law’s Origin Stories

Shyamkrishna Balganesh, The Questionable Origins of the Copyright Infringement Analysis, 68 Stan. L. Rev. 791 (2016).

One particularly engaging genre of legal scholarship is the deep historical dive into an appellate opinion that has become a classic in a field. In volumes such as Torts Stories, Contracts Stories, and Intellectual Property Stories, scholars resurrect the history leading to landmark cases: the cast of characters involved in the dispute, the lower court wrangling that led to the more famous appeal, the aftermath of the case, and the lasting impact of the court’s opinion.

While we must constantly remind ourselves that each case we analyze or teach involves real individuals with real disputes that affected real lives, there is a certain fictional quality to these stories precisely because the judicial opinion is the lead character. Judicial opinions can never be more than an abstract, a description of events that then becomes the accepted narrative. Paul Robert Cohen’s expletive-bearing jacket was expression serving an “emotive function,” according to the Court, not an “absurd and immature antic,” as the dissent would have it, and that made all the difference. Opinions have authors, and authors are necessarily engaged in a project of crafting narratives with a result in mind.

Yet knowing more about how an opinion came to be does give us a richer understanding of its context and, perhaps, some guidance on how to interpret the opinion going forward. This is the project that Shyamkrishna Balganesh undertakes in his compelling and entertaining article The Questionable Origins of the Copyright Infringement Analysis. Continue reading "Copyright Law’s Origin Stories"

Mapping the Fault Lines of Normative Constitutional Theory

Andrew Coan, The Foundations of Constitutional Theory, Arizona Legal Studies Discussion Paper No. 16-24 (2016), available at SSRN.

How should courts decide constitutional cases? The question has been a long-time favorite of judges and scholars, who have defined, developed, and defended a variety of approaches to the project of constitutional adjudication. Some such approaches privilege the “original public meaning” of the constitutional text; others emphasize judicial precedent; others require close attention to moral considerations; others focus on welfare maximization; others place weight on majoritarian preferences; others look to social movements; others privilege representation reinforcement; and countless others require a complex weighing of these and other factors against one another. When it comes to the application and development of constitutional law, different theorists think that different types of considerations should guide the decision-making inquiry to different degrees, and a great deal of constitutional scholarship centers on the question of how these various considerations should bring themselves to bear on the resolution of constitutional cases.

But the disagreements among constitutional theorists run deeper than the question of how to decide cases; scholars also disagree about how to evaluate the merits of a given decision-making approach. One cannot defend one’s preferred method of constitutional adjudication without identifying reasons why that method is preferable to others. And to identify these reasons, one must have an account of what a successful approach to constitutional adjudication achieves. Should we value methodologies that consistently produce substantively desirable judicial outcomes? Should we value methodologies that best reflect the Constitution’s status as written law ratified by “We the People”? Should we value methodologies that constrain the power of unelected judges? Should we value methodologies that adhere to conventional understandings of “what the law is”? And so on. Different approaches to constitutional decision-making will look more or less attractive depending on the criteria against which we evaluate them. And different people favor different approaches in part because they disagree as to what those criteria should be.

Andrew Coan’s illuminating new article is about this second set of questions—questions that go to what Coan calls the “normative foundations” of constitutional theory. These questions, as Coan readily concedes, are by no means unfamiliar to constitutional lawyers; scholars routinely identify criteria for evaluating a decision-making methodology and, in the course of doing so, have very often set out to defend the relevance of the criteria they use. But what Coan’s article aims to provide is a systematic examination of the competing sets of “first principles” from which different theories of constitutional decision-making begin. Coan’s goal, in other words, is to survey the existing landscape of normative constitutional theory with an eye toward describing and evaluating the various types of reasons and arguments that constitutional theorists regard as relevant to the choice among decision-making methodologies. Continue reading "Mapping the Fault Lines of Normative Constitutional Theory"