Yearly Archives: 2018
Apr 26, 2018 W.A. EdmundsonJurisprudence
This concise and lucid book “is a summary of our current collective understanding of the method by which some societies decide who would govern them.…” (P. VIII.) The author is a professor of politics and economics at NYU, and an esteemed authority in the field of political economy. The book could not be timelier: many of us simply cannot understand how elections got us to where we are now. Bafflement can beget both anger and apathy. Much of the collective social-scientific understanding Przeworski relates will be deflating even for those who have already cast aside illusions. Nonetheless, he urges us to keep on bothering.
The book begins with a reminder that “elections are a modern phenomenon.” (P. 13.) The first national legislative election was held in 1788, to the United States Congress. Since then, elections have become an almost universal norm: today, “all but a handful of countries have legislatures elected by universal [qualified] suffrage and chief executives either elected in popular elections or indirectly by elected parliaments.” (P. 17.) The elections boom was accompanied by, and surely to some degree motivated by, the Rousseavian aspiration to reconcile humankind’s innate freedom with the fact that coercive government is here to stay. This yearning for self-government finds its expression in the rituals of popular elections. Continue reading "It Can’t Happen Here, Has It?"
Apr 25, 2018 Maneesha DeckhaEquality
Mathilde Cohen,
Animal Colonialism: The Case of Milk, 111
Am. J. Int’l L. Unbound 267 (2017), available at
SSRN.
Many progressive scholars and advocates on the Left presume that the animal rights movement is culturally imperialist (at least in its American and Canadian iterations). This presumption holds steadfast in spite of the considerable scholarship, notably originating in ecofeminist thought, demonstrating the multiple ideological, discursive, and material links between human and nonhuman animal oppression advanced through dominant Western epistemologies and political, social, economic, and legal orders. Or, put differently, in many ways, arguments highlighting what is wrong with animal commodification and exploitation often indict Western worldviews on animals rather than seek to extend such worldviews elsewhere.
Why this presumption nonetheless persists is a complex issue. Certainly, one reason is the real and imagined whiteness of the movement (again, in its American and Canadian iterations). A further reason may be the related insufficient adoption of an intersectionalist ethic in high-profile animal rights campaigns where animal injustice is disconnected from human injustices. The perception can then flow that those who care about equality for animals do not care about vulnerable (often racialized and indigenous) humans.
Most legal scholarship on animals in the United States does not embrace an intersectionalist orientation when discussing injustice against animals. To the extent the dearth of intersectional analysis in animal law scholarship fuels the association of animal rights with cultural imperialism, Mathilde Cohen’s Animal Colonialism: The Case of Milk is a very welcome corrective. Her short yet informative analysis about milk’s global rise compellingly illustrates the transspecies nature of law’s violence and ensuing inequalities. Specifically, Cohen shows how Eurocentric international law and trade, European dietary and legal norms in relation to animals, and European and American modernist discourses championing cow’s milk over traditional breastfeeding and maternal care occasioned a global rise of the human consumption of cow’s milk that was pivotal to empire-building throughout the world. This entailed devastating harms for colonized peoples and animals both. Continue reading "Milk’s Global Rise: A Case Study to Illuminate the Transspecies Violence of Law and Colonialism"
Apr 24, 2018 Christopher SloboginCriminal Law
Anyone interested in American criminal justice has to wonder why we have so many more people in prison—in absolute as well as relative terms—than the western half of the European continent, the part of the world most readily comparable to us. This book, consisting of eleven chapters by eminent criminal law scholars, criminologists and political scientists, provides both a detailed look at how U.S. punishment is different and an insightful analysis of why that might be so. While many chapters in the book describe previously declared positions of the authors, there is also much that is new in the book, particularly with respect to non-prison sanctions; whether veterans of the field or newcomers to it, readers should find this collection of the area’s leading scholars extremely useful. As the primary Reporter for the recently complete revisions to the Model Penal Code’s sentencing provisions and director of the Robina Institute of Criminal Law and Criminal Justice at Minnesota Law School, editor Kevin Reitz is ideally situated to bring this impressive compendium of material together.
In the opening chapter, Reitz lays out the reason for the book, describing the well-known American mass punishment phenomenon in ways that present the problem in a new light. For instance, he notes that the U.S. would have to release 1.8 million inmates simply to achieve the same imprisonment rate as England and Wales, western Europe’s leader in per capita imprisonment. Whether the focus is long-term confinement, the use of probation and parole, or the imposition of collateral consequences, Reitz notes, we “beat” all western European countries hands-down. Continue reading "How and Why is the American Punishment System “Exceptional”?"
Apr 23, 2018 Lumen N. MulliganCourts Law
JOTWELL readers do not need me to tell them that Scott Dodson is a leading voice in jurisdiction and procedure. His most recent article, as we have come to expect, meaningfully contributes to the contemporary discussion concerning the proper, and perhaps competing, roles for the Supreme Court and the Civil Rules Advisory Committee in interpreting the Federal Rules of Civil Procedure. Dodson calls for the Rules Committee to take a more active amicus curiae role in Civil Rules cases, suggesting that such an approach can substantially improve the reasoning and resolution of such cases without marginalizing the Court’s adjudicatory role.
Dodson succinctly lays out the current state of affairs in which the Court is largely divorced from the Civil Rules promulgation process, despite nominally overseeing it. This state of affairs has led to the current situation in which the Rules Committee takes exclusive ownership over the Rules drafting process, while the Court takes exclusive ownership over interpreting the Rules. As a result, the Court and the Rules Committee engage in their respective tasks without consulting the other. Continue reading "More Amicus Briefing?"
Apr 20, 2018 Omari SimmonsCorporate Law
Elizabeth Pollman & Jordan M. Barry,
Regulatory Entrepreneurship, 90
S. Cal. L. Rev. 383 (2017), available at
SSRN.
Regulatory Entrepreneurship by Elizabeth Pollman and Jordan Barry provides a must-read thought provoking descriptive account of how certain companies influence and shape regulation in the modern economy. In short, “regulatory entrepreneurship” describes companies’ attempts to dismantle, weaken, and exploit gray areas in the preexisting regulatory architecture that impede a particular line of business. With clear illustrations the article sheds new light on the tactics employed by some of today’s fastest growing companies such as Uber and Airbnb to surmount regulatory obstacles.
Article’s Findings
The article distinguishes regulatory entrepreneurship (“RE”) from more reactive traditional modes of corporate political activism and lobbying where companies insulate themselves from competition and protect existing profit centers. In the traditional context, the article asserts that changing the law is not necessarily material to a company’s overarching business plan and usually constitutes a relatively small part of their overall operations and focus. By contrast “regulatory entrepreneurship” is more proactive and central to a company’s overarching business strategy and viability. Continue reading "Corporate Political Activism 5.0"
Apr 19, 2018 Mark KendeConstitutional Law
David Landau,
Legal Pragmatism and Comparative Constitutional Law, in
Elgar Handbook on Comparative Constitutional Theory (forthcoming 2018), available at
SSRN.
Law is a practical field. It resolves concrete disputes. Constitutional law, however, is often thought of as more theoretical than practical. For example, a common current debate in constitutional interpretation is between originalism and living constitutionalism. Both have been advocated and criticized to death. Thus, Thomas Colby and Peter Smith have argued that originalism does not consist of one overarching theory, and that it leaves many questions unanswered. Self-proclaimed originalists disagree on some major issues and acknowledge that courts must often “construct” the right answers. But William van Alstyne has emphasized that living constitutionalists also have “clashing visions.”
It is therefore a breath of fresh air to read David Landau’s forthcoming book chapter, “Legal Pragmatism and Comparative Constitutional Law.” Eschewing these sorts of rehearsed debates between theories that each contain their own brand of formalism, Landau argues that legal pragmatism is an especially useful approach to interpreting the United States Constitution. It requires judges to acknowledge the indeterminacy of constitutional interpretation, to appreciate the importance of focusing on the detailed factual, empirical, and other contextual elements of the constitutional issues presented, and to achieve the best result possible using the toolkit provided by the law, and other “eclectic” criteria. Landau also shows that pragmatism is useful in comparative constitutional law, rather than seeing it as a uniquely American approach. Continue reading "Pragmatist Constitutionalism in Comparative Perspective"
Apr 18, 2018 Felix MormannLexEnergy Law
Shelley Welton,
Clean Electrification, 88
U. Colo. L. Rev. 571 (2017), available at
SSRN.
Climate change has made the timely decarbonization of the electric grid a top priority for policymakers in the United States and across the globe. In the absence of a meaningful price on carbon, net metering, tax credits, and other incentive programs dominate the low-carbon policy landscape. Critics of clean energy incentives have long argued that government should not engage in the business of picking winners and losers among competing technologies. With her thoughtful article, Clean Electrification, Professor Shelley Welton reminds us that public policy support for a low-carbon energy economy has disparate impacts not only on technologies but also on ratepayers, utilities, and other stakeholders.
U.S. policymakers increasingly seek to enlist ratepayers in the war on carbon, harnessing technology innovation to turn previously passive electricity customers into active partners in grid decarbonization efforts. This vision of a “participatory grid” rests on smart appliances, rooftop solar, energy storage, and other technologies capable of empowering ratepayers to more actively manage their energy consumption, generation, and other grid interactions. Access to these technologies and, hence, to the benefits of active grid participation, however, comes at considerable cost raising concerns over the vision’s implications for distributional equity, as evidenced by “solar fairness” debates across the country. Continue reading "Clean Electricity for the People by the People"
Apr 17, 2018 Frank PasqualeTechnology Law
There is a remarkable body of work on the US government’s burgeoning array of high-tech surveillance programs. As Dana Priest and Bill Arkin revealed in their Top Secret America series, there are hundreds of entities which enjoy access to troves of data on US citizens. Ever since the Snowden revelations, this extraordinary power to collate data points about individuals has caused unease among scholars, civil libertarians, and virtually any citizen with a sense of how badly wrong supposedly data-driven decision-making can go.
In Big Data Blacklisting, Margaret Hu comprehensively demonstrates just how well-founded that suspicion is. She shows the high stakes of governmental classifications: No Work, No Vote, No Fly, and No Citizenship lists are among her examples. Persons blackballed by such lists often have no real recourse—they end up trapped in useless intra-agency appeals under the exhaustion doctrine, or stonewalled from discovering the true foundations of the classification by state secrecy and trade secrecy laws. The result is a Kafkaesque affront to basic principles of transparency and due process. Continue reading "Black Box Stigmatic Harms (and how to Stop Them)"
Apr 16, 2018 Michael E HerzAdministrative Law
Ronald Levin,
Rulemaking and the Guidance Exception, 70
Admin. L. Rev. (forthcoming 2018), available at
SSRN.
The late, great Kenneth Culp Davis was known for many things, but humility was not among them. He knew the answers; he knew them better than did the Supreme Court; and he knew that he knew them. So it is remarkable that there was a problem in administrative law he found “baffling.” That was the distinction between legislative rules, interpretive rules, and statements of policy.
Interpretive rules and statements of policy are now generally labeled “guidance documents,” although that term does not appear in the Administrative Procedure Act. (At least not yet. Indicative of the attention and controversy that surround them, the Senate version of the pending Regulatory Accountability Act would amend the APA to define and attempt to constrain the use of “guidance.”) Agency reliance on guidance documents has led to two related controversies. One is normative and empirical: is the phenomenon an instance of responsible and helpful governance or, rather, an abusive end-run around notice-and-comment requirements? The other is doctrinal: how can one tell what’s a legislative rule and what’s a guidance document? The distinction matters, because the former are subject to the APA’s notice-and-comment requirements and the latter are not. Yet the courts have been as baffled as K.C. Davis, unable to construct a coherent and manageable body of law. Umpteen pages of law review commentary have not improved matters, and the recent politicization of the debate has only compounded the confusion and disarray. Continue reading "Once More Unto the Breach, Dear Friends — Levin on the Guidance Exception"
Apr 13, 2018 Gerry W. BeyerTrusts & Estates
Mark Glover,
Freedom of Inheritance, 2017
Utah L. Rev. 283 (2017), available at
SSRN.
Policymakers have long focused on the freedom of disposition, the ability of donors to decide how their property should be distributed. These decisions are almost at the complete discretion of the donor. The donee, on the other hand, has a much smaller role in the process. The donee’s only real decision is deciding whether to accept or reject the donor’s gift. This choice is termed the freedom of inheritance. While the freedom of disposition is well understood, the freedom of inheritance has not been explored to the same extent.
Prof. Mark Glover’s article, Freedom of Inheritance, justifies the need to recognize the freedom of inheritance and how policymakers need to facilitate the freedom of inheritance for donees. Prof. Glover explains the importance, mechanics, and rationales behind the freedom of disposition. He then conducts parallel explanations for the freedom of inheritance. The article also analyzes how the freedom of inheritance aids the utility for both the donee and the donor. Prof. Glover delineates how the donee may be better prepared to handle the disposition of the donor’s property post-mortem with specific examples. Finally, the article emphasizes how to best facilitate the freedom of inheritance in contrast with the freedom of disposition. Continue reading "Uncaging the Donee’s Freedom"
