Monthly Archives: May 2019

William’s World: An Essay About the History of Just Price

Reading Professor William Boyd’s fine piece, Just Price, Public Utility, and the Long History of Economic Regulation in America, I couldn’t help but think of Jostein Gaardner’s international bestselling novel Sophie’s World. To be clear, there’s no teenage girl in Boyd’s essay receiving letters from a mysterious stranger that enlighten her on the history of philosophy (or, in Boyd’s case, economic regulation). But, like Gaardner, Boyd does an outstanding job of bringing to life and making accessible what many might otherwise consider a dense, perhaps even tedious subject matter—the history of price regulation. And unlike Gaardner, Boyd manages to do so with remarkably little sacrifice in breadth and depth of coverage.

Professor Boyd’s essay takes readers on an intriguing journey through time, tracing the doctrine of “just price” all the way back to the Aristotelian concept of corrective justice, devoted to preserving equality in exchange, commonly understood as an arithmetic proportion around a mean. From ancient Greece, readers are guided to medieval Italy where Thomas Aquinas and other Scholastics expanded Aristotle’s framing into the notion of commutative justice, a construct intended to encompass the full range of voluntary and involuntary interpersonal relationships, including but not limited to economic exchange. Continue reading "William’s World: An Essay About the History of Just Price"

Properly Restating the Law of Consumer Contracting

In May 2019 the ALI is scheduled a vote on the 5th Draft Restatement of the Law of Consumer Contracts (“5th Draft Restatement”), a project that seeks to help courts balance the integrity of contract doctrine and commercial reality. Two recent empirical studies in the Yale Journal on Regulation have convinced me that the ALI Council should click “pause” on its adoption because the 5th Draft seems more like a normative statement of what the law should be than a restatement of the common law of contracts in this area.

The two, related articles are  Gregory Klass, Empiricism and Privacy Policies in the Restatement of Consumer Contract Law, 36 Yale J. on Reg. 45 (2019) (“Klass article), and Adam Levitin et al., The Faulty Foundation of the Draft Restatement of Consumer Contracts, 36 Yale J. on Reg. 447 (2019) (“Faulty Foundation”). This Jotwell essay focuses on the Levitin article, but readers interested in when a privacy policy is a contract should check out the Klass article. Continue reading "Properly Restating the Law of Consumer Contracting"

Are Make Believe Juries as Good for Prosecutors as Real Ones?

Anna Offit, Prosecuting in the Shadow of the Jury, 133 Nw. U. L. Rev. _ (forthcoming, 2019), available at SSRN.

Scholars often speculate about how prosecutors exercise their vast discretion. Most of these critics make well-founded conclusions based on educated guesses about how prosecutors make the critical decisions that affect the fate of individual defendants and more broadly shape the community and legal system as a whole. In Prosecuting in the Shadow of the Jury, Anna Offit conjures a rare bird—empirical evidence about how prosecutors make discretionary decisions. Her evidence shows that prosecutors frequently make decisions by invoking a hypothetical juror to test arguments and assess the fairness of their proposed actions.

Professor Offit bases her conclusions on 133 interviews with Assistant United States Attorneys over a five year period of time. Her work offers unique insight into the way prosecutors think and reason through their cases.  She finds that prosecutors frequently consider the “jury appeal” of witnesses and evidence when they decide whether or not to charge an individual with a crime. By doing so, the prosecutor projects common sense sources of concern onto a hypothetical juror. For example, a slew of questions by confused grand jurors often lead Offit’s interviewees to consider difficulties in proving the case to an actual jury down the line. In assessing their police officer and cooperating witnesses’ credibility, the prosecutors frequently consider whether a juror would believe the witness. In doing so, they absolve themselves of the responsibility of criticizing their own witnesses by projecting their concerns on the imagined juror. Freeing themselves to be aggressive advocates and reasoned critics at the same time, this method ensures that prosecutors consider not only weaknesses in their cases, but also fairness and equity. They look at their cases not only through their own eyes but also through the eyes of a skeptical observer. Continue reading "Are Make Believe Juries as Good for Prosecutors as Real Ones?"

Law and Public History: The Legal History of Memory Regulation in Twentieth-Century Europe

The United States is in the midst of a memory war. Every month brings a new political and legal dispute over how our nation should portray its past in its public spaces. At the center of this struggle are the myriad of Confederate war memorials that dot the South.  Southern localities and educational institutions have tried to remove these memorials. State legislatures have fought back, passing “heritage protection laws” that prohibit their removal or alteration. As the horrific events that took place in Charlottesville in 2017 demonstrated, the notion that this conflict over interpreting our nation’s past as a “war” is not always metaphorical. Nor are these fights over Confederate statuary the only battles in this war. From the content of high school textbooks to the identity of college mascots, we are constantly engaged in skirmishes in memory wars, as activists, policy-makers, and politicians deploy law and political advocacy to shape how we understand contentious events in our nation’s past, be they the Civil War, westward expansion, or the decision to drop the atomic bomb.

Nikolay Koposov’s compelling, encyclopedic history of the regulation of historical memory in Europe, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia, is a must read for anyone determined to think deeply about these battles over how the past should be remembered. At its center is a fascinating story about the relationship among law, history, and public memory. Memory Laws, Memory Wars recounts the emergence of the regulation of historical memory in Europe. This story starts in Western Europe in the early 1980s when West Germany and France considered legislation criminalizing Holocaust denial. These attempts came to fruition in 1990, when France enacted the Gassyot Act. That law imposed a one year prison term and a 45,000 Euro fine on people who publically disputed the existence or dimensions of the Holocaust – the crimes against humanity that were defined by the Nuremburg Tribunal at the end of World War II.

During the 1990s, this sort of law spread throughout the European Union. This spread was marked by two changes. First, the number of historical events that fell within the ambit of these laws expanded. Historical assessments of the Armenian genocide, fascist repression in Spain, the violent legacy of European colonialism, and Europe’s role in the slave trade were all made subject to state regulation. Second, the administrative mechanisms deployed to regulate memory became more diverse. Though most Western European countries maintained criminal sanctions for Holocaust denial, as the palate of problematic histories expanded, different counties regulated them differently, often in a less punitive manner: curricular requirements in schools, or simple acknowledgements and apologies by culpable nations.

The collapse of the Soviet Union and the eastward expansion of the European Union generated another dramatic change in memory regulation. As Eastern European countries gained autonomy, they brought the evils of Soviet domination into the ambit of memory regulations. Denial of Stalinist atrocities was placed on a par with Holocaust denialism and thus subjected to criminal sanction in Eastern Europe. More significantly, the expansion of memory laws to Eastern Europe saw a frightening shift in their emphasis. The original wave of memory laws that sprang from Western Europe’s encounter with the Holocaust were premised on the idea of repentance: our nation did something horrible and only by preserving the memory of that horror can we ensure that we don’t err again.  Memory regulation in the East, however, focused on the denial of responsibility for evil acts. These laws were designed to “promote nationalist mythology” by shifting “the blame for historical injustices entirely to others” (Pp. 308-309). Thus, Turkey criminalized references to the Armenian Genocide, Russia criminalized criticism of Soviet acts during the Second World War, Poland prohibited assertions that “the Polish nation” was complicit in the Holocaust, and Hungary whitewashed the fascist antecedents of its current regime by criminalizing claims that Hungarian anti-Soviet fascists were anything other than heroic freedom fighters. The confessions of national culpability that defined the initial set of memory laws had been replaced by laws that criminalized “the denial of other nations’ misdeeds” in order to promote reactionary nationalism based on “self-victimization” (P. 305).

This thumbnail description of Koposov’s narrative doesn’t do justice to the complexity of this story and subtlety with which he tells it. He effortlessly takes the reader through the fiendishly complex political history of post-Cold War Eastern Europe, demonstrating how different attempts at nation-building yielded different types of memory regulation. He details the changing sentiments of Western European intellectuals, who initially supported the criminalization of Holocaust denial, but then adopted a considerably more libertarian approach to speech regulation as the utility of memory regulation to illiberal regimes in Eastern Europe became apparent. Finally, he recounts the relationship between the lost possibility of a liberal, democratic post-Soviet Russia and the profoundly sinister turn that memory law and politics took as Vladimir Putin consolidated power in the first decade of the twenty-first century. Continue reading "Law and Public History: The Legal History of Memory Regulation in Twentieth-Century Europe"

Repackaging Normativity

Triantafyllos Gkouvas, The Metric Approach to Legal Normativity, Unpacking Normativity (2018).

The subject of legal normativity has attracted a great deal of attention recently. The collection in which Tria Gkouvas’s chapter appears does much to display the variety of perspectives, themes and issues that inform the current debate. Or, perhaps, current debates, given that a number of positions being expounded here and in other works on normativity over recent years tend to fix the normativity debate with a particular character prior to making a contribution to it. Gkouvas’s chapter is particularly stimulating in seeking to develop an approach that cuts across different perspectives and joins together different roles of normativity in what he presents as a “standard of normative robustness.” (P. 17.)

This approach is styled the “metric approach” precisely because it can be used to measure the normative robustness of quite different legal theories. It offers to do this by concentrating on “the Nexus space of reason-giving facts,” (P. 18) in which the different roles of action-guidance, evaluation of action, and explanation of action cohere in a single fact (Pp. 18-19). Gkouvas’s notion of Nexus is borrowed from Joseph Raz’s use of the term in From Normativity to Responsibility to indicate the connection between the normative force of a fact and its explanatory potential in a normative/explanatory nexus. Gkouvas amplifies this nexus as covering the three normative roles just mentioned of guidance, evaluation, and explanation; corresponding to “three distinct component functions (metaphysical, evaluative and explanatory).” (P. 18.) Continue reading "Repackaging Normativity"

Bearing Witness as Researchers in the Pursuit of Equality

Kathryn Gillespie, The Cow with Eartag #1389 (2018).

Most academics who care about substantive equality accept that ideologies and attendant violence about which lives matter in society and which lives don’t cause devastation and trauma to individuals and communities. Many of us write about such suffering in our work so that others can learn about it and push for law reform and social change. But how exactly we as academics can bear witness to this suffering in the course of our equality-inspired, change-seeking research and writing is not a frequent point of discussion. But it should be, especially when the suffering we write about is chronic, of staggering magnitude, largely incommunicable, and sanctioned by law.

Anyone looking for an excellent example of how to bear witness to ongoing violence as a researcher—and learning along the way about the structural violence inherent to the dairy industry—should pick up Kathryn Gillespie’s The Cow with Eartag #1389. In it, feminist and critical animal studies geographer Gillespie eloquently bears witness to the massive yet mundane suffering engendered by the human appropriation of cows’ milk. Gillespie deeply cares about the plight of all farmed animals and the vulnerable humans exploited in agriculture, but has chosen to focus her critical lens on the dairy industry. She aptly defends her focus noting that milk is a substance produced by an industry whose workings “is obscured from public knowledge”, but is a product so normalized for humans to drink that “many well-educated and thoughtful people” are “surprised to discover that a cow has to be regularly impregnated to produce milk” (P. 14). Continue reading "Bearing Witness as Researchers in the Pursuit of Equality"

Empathy, Democracy, and the Rule of Law

Kiel Brennan-Marquez & Stephen E. Henderson, Artificial Intelligence and Role-Reversible Judgment, __ J. of Crim. L. and Criminology __ (forthcoming), available at SSRN.

Are some types of robotic judging so troubling that they simply should not occur? In Artificial Intelligence and Role-Reversible Judgment, Kiel Brennan-Marquez and Stephen E. Henderson say yes, confronting an increasingly urgent question. They illuminate dangers inherent in the automation of judgment, rooting their analysis in a deep understanding of classic jurisprudence on the rule of law.

Automation and standardization via software and data have become a regulative ideal for many legal scholars. The more bias and arbitrariness emerge in legal systems, the more their would-be perfecters seek the pristine clarity of rules so clear and detailed that they can specify the circumstances of their own application. The end-point here would be a robotic judge, pre-programmed (and updated via machine learning) to apply the law to any situation that may emerge, calculating optimal penalties and awards via some all-commensurating logic of maximized social welfare.

Too many “algorithmic accountability” reformers, meanwhile, are in general either unaware of this grand vision of a legal singularity, or acquiescent in it. They want to use better data to inform legal automation, and to audit it for bias. The more foundational question is less often asked: Does the robo-judge not simply present problems of faulty algorithms and biased or inaccurate data, but something more fundamental—a challenge to human dignity? Continue reading "Empathy, Democracy, and the Rule of Law"

Is Personal Jurisdiction Constitutionally Self-Enacting?

A. Benjamin Spencer, The Territorial Reach of Federal Courts, __ Fla. L. Rev. __ (forthcoming 2019), available at SSRN.

Federal Rule of Civil Procedure 4(k) generally limits the scope of a federal district court’s personal jurisdiction to that of the state in which it sits. We have this paralleling of state- and federal-court personal jurisdiction despite the fact that the Fourteenth Amendment limits only the states’ exercise of personal jurisdiction while it is the Fifth Amendment that presumptively regulates the federal exercise of that same power. Building upon this distinction, Benjamin Spencer, in his dual role as a preeminent procedural scholar and member of the Judicial Conference Advisory Committee on Civil Rules, argues that we should decouple federal and state court personal jurisdiction doctrine. You should give this short, but thought-provoking, essay a read not only because Spencer is one of the top proceduralists writing today, but because you could well be working with his revised Rule 4(k) soon.

Spencer defends a radical redrafting of Rule 4(k), suggesting as follows: “All process other than a subpoena may be served anywhere within the territorial limits of United States. Nothing in these Rules limits the personal jurisdiction of a district court.” Under his proposal, federal courts would take personal jurisdiction by engaging in an International Shoe analysis that focuses upon contacts with the nation as a whole—not merely contacts with the state in which the federal court sits, as is the case under current practice. Continue reading "Is Personal Jurisdiction Constitutionally Self-Enacting?"

Rightless Remedies

Stephen A. Smith, Rights-Threats, Wrongs and Injustices: The Common Law Causes of Action, 27 N.Z.U.L. Rev. 1033 (2017), available at SSRN.

It is a familiar quip that a right without a remedy is no right at all. A recent article by Stephen A. Smith shows, however, that there is such a thing as a remedy with no right—something I might call a “rightless remedy.” In Rights-Threats, Wrongs and Injustices: The Common Law Causes of Action, Smith explicates a category of judicial orders (i.e., remedies) that are not tied to any underlying legal right or wrong. In doing so, Smith tells us something important about both rights and remedies.

To appreciate Smith’s insights, it is first important to understand his taxonomy. The phrase “cause of action” can mean many things, but to Smith and other scholars writing in this area, a “cause of action” is a set of facts that justify a judicially-administered remedy. Understood as such, a cause of action is not necessarily co-extensive with substantive law. The substantive law contains instructions for citizens (e.g., “do not hit others,”) but cause-of-action law (sometimes called “remedial law”) contains instructions for courts (e.g. “if a person proves to you that she has been hit, order the hitter to pay her damages”). Causes of action will usually track the substantive law closely, and for that reason we often take it for granted that, where a wrong has been committed, a court will issue a remedy. But there are certainly situations in which remedial law does not authorize judicial intervention, even when a wrong has been committed (such as, for example, when a court declines to issue an injunction because it will impose an undue hardship on the defendant). Far less common (or even ignored until Smith showed otherwise) are situations in which a remedy issues where no wrong has been committed—but that is an issue we will get to in a bit. Continue reading "Rightless Remedies"

Understanding ICOs: In Code We (Shouldn’t) Trust?

Shaanan Cohney, David A. Hoffman, Jeremy Sklaroff, & David A. Wishnick, Coin-Operated Capitalism, Columbia L. Rev. (forthcoming 2019), available at SSRN.

So-called “initial coin offerings,” or ICOs, are the new IPOs. In the last two years, ICOs became one of the hottest new investment opportunities in the rapidly growing market for crypto-assets—and one of the hottest topics of discussion among policy-makers and capital markets experts. Just like everything else that belongs in the general category of “fintech,” ICOs are fascinating and mysterious to most of us, legal scholars. What exactly are these “tokens” or “coins” that are being sold to investors in lieu of the traditional shares and bonds? Are they investment contracts, products, or club membership cards? Are they money? Should they be regulated, and under what set of rules? These are just some of the questions the acronym “ICO” triggers in the lawyer’s restless mind.

In a new article, cleverly titled Coin-Operated Capitalism, a team of authors with varying expertise (including a computer scientist and a scholar of contract law) explain ICOs by using an example of Coca-Cola raising money for its network of vending machines by issuing tokens to be used for purchasing cans of coke from those machines. Unlike the imaginary Coca-Cola project, however, ICOs involve purely digital “tokens” and “machines” that reside on blockchains and are embodied in software codes. As the authors explain, the key forms of this software—known as “smart contracts”—are encoded “if-X-then-Y” rules that govern the functionality of specific tokens sold in individual ICOs. To many ICO (and, more generally, crypto-tech) enthusiasts, this fully automated functioning of the issuer-investor relationship is a great virtue: by eliminating the need to trust humans, smart contracts supposedly eliminate the possibility of fraud or other misbehavior by company managers and insiders enjoying significant informational advantages over outside investors. In this techno-utopian narrative, there should be no need for legally mandated disclosures, regulatory oversight, or court enforcement of investors’ rights: the software code would simply deliver the results intended by the contracting parties, in an impeccably efficient and transparent manner. Continue reading "Understanding ICOs: In Code We (Shouldn’t) Trust?"

The Power of Police Unions

  • Stephen Rushin, Police Disciplinary Appeals, 167 U. Pa. L. Rev. __ (forthcoming, 2019), available at SSRN.
  • Dhammika Dharmapala, Richard H. McAdams, and John Rappaport, Collective Bargaining and Police Misconduct, available at SSRN.

While riding with officers, conducting interviews and coding policies for my forthcoming book, Camera Power: Proof, Policing, Privacy and Audiovisual Big Data, I was struck by the influence of police unions—or lack of a strong union—in shaping body camera recording policies and limits on using the video to evaluate and discipline officers. Delving into the literature on police unions, I was impressed to read the work of prolific professors using innovative methods to systematically collect and analyze data on the influence of police unions. I would like to spotlight two recent important empirical studies on police unions.

Analyzing a large dataset of police union contracts, Stephen Rushin’s latest article illuminates how collectively bargained protections in the police disciplinary appeals process can impede efforts to address potentially problematic officers. The findings are particularly disturbing and compelling when read in conjunction with an important new study by Dhammika Dharmapala, Richard H. McAdams and John Rappaport. This dream team of interdisciplinary scholars offers the first quasi-experimental evidence that conferring collective bargaining rights on sheriffs’ deputies is associated with about a 45% increase in violent incidents. Continue reading "The Power of Police Unions"