July 15th, 2010
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Kerri Stone | Worklaw
Kerri Stone
Professor Danielle Citron has authored an important piece that calls for the condemnation of cyber gender harassment. Often downplayed or minimized, this problem, according to Citron, is merely the most recent iteration of abuse perpetrated against women, but inadequately documented, discouraged, and combated. Like domestic violence and sexual harassment before it, cyber gender harassment is in danger of being underestimated until too much harm has already been conferred upon the personal and professional dignity, access, and safety of women everywhere. Decrying the law’s failure to identify the harms that uniquely target and affect women, Citron laments the transmission of a signal by the law that the oppression of women through this kind of abuse is somehow tolerable. Citron is one of the foremost and earliest scholars to call for a cyber civil rights agenda that would explicitly identify cyber harassment as gender discrimination. Her emphasis on the uniqueness of the harm that flows to women from a practice that while abhorrent, might typically be regarded as gender neutral, is of particular note, and her admonition that the law ought to educate society about this harm to effect societal reform is powerful.
This piece builds on a previous work of Citron’s, Cyber Civil Rights, 89 BULR 61 (2009), which examined the ways in which the law acts to deter and penalize online abuse. Citron now calls upon the law to recognize the unique harms that cyber harassment confers on women as individuals and as a protected class, as well as to root out and to eradicate this phenomenon. As examples of online harassment directed against women, Citron discusses, among others, cyber threats, depictions of violence against women, the publication of victims’ personal information, and attacks launched against feminist blogs and websites. She recalls the disproportionate number of female victims of this harassment and the very frequent implication of female victims’ genders by their explicit mention in the taunts and threats of harassers. As to what should be done about this problem, Citron suggests that extant civil rights legislation can be employed to fill in some of the compensatory and other gaps left open by traditional criminal and tort remedies for cyber harassment. Indeed, invoking caselaw from the 1960s, she boldly posits that Title VII of the Civil Rights Act of 1964 can be invoked when attackers and harassers prevent women from making a living on the basis of their sex. Continue reading "Policing the new Frontier of Workplace Discrimination"
Alice Ristroph,
How (not) to Think Like a Punisher, 61
Fla. L. Rev. 727 (2009), available at
SSRN.
Aya Gruber
As an undergraduate philosophy student, Kantian metaphysics rocked my world. Kant’s account of human cognition as a priori and synthetic and his forging of complex epistemological theory from that metaphysical observation were like poetry to me. Further, Kant’s ethical theory seemed like the only one based on more than just an arbitrary first principles or a posteriori human instincts about right and wrong. Rather, Kant based his moral imperative on noncontradiction, which itself comes from the necessary conditions of cognition. What could be more reasonable than a moral program based on metaphysical observations about the human condition? Accordingly, I embraced retributivism with an almost zealous fervor. It was so clean―as logical as the symmetric property of equality: Punishment should be given to those who deserve it. Thus, those who deserve it should be punished.
As I moved from undergrad to law school to the public defender’s office to academia, I continued to be a Kantian. I continued to believe that the very notion of justice was embodied in the principle that we punish those who deserve it as much as they deserve. I attributed the mass injustice of the American penal system to the retributive failings of criminal justice actors. In short, moved by political concerns, legislators, prosecutors, and judges supported severe sentences, despite the fact that most thoughtful people could recognize that such sentences were undeserved. If only these state actors could be better retributivists, the problems of disproportionate sentencing and skyrocketing prison population would be solved. Continue reading "The False Promise of Retributive Proportionality"
Michael Green
Anglophone philosophy of law is remarkably focused on one book – The Concept of Law by H.L.A. Hart. This may be a mistake. It is hard to imagine a single book – much less an introductory work for undergraduates written almost fifty years ago – playing a comparable role in, say, the philosophy of language or mind. But given that The Concept of Law does occupy such an important place in the philosophy of law, it is all the more important to get what Hart said in the book right. Julie Dickson’s recent article does, in a way that has importance for the field more generally.
Hart argued that at the foundation of each legal system there is a practice among officials of enforcing norms only if they satisfy certain ultimate criteria. For example, in England officials enforce norms only if they can be traced back to the Queen-in-Parliament. Hart calls these enforcement criteria the rule of recognition for the legal system. Continue reading "Against the Conventionalist Turn in Legal Theory: Dickson on Hart on the Rule of Recognition"
M. Elizabeth Magill and Adrian Vermeule,
Allocating Power Within Agencies,
Yale L.J. (forthcoming), available at
SSRN.
Michael E Herz
The central concern of administrative law is how to control agency discretion. Agencies are handed enormous authority, and administrative law consists primarily – indeed, almost exclusively – of a set of doctrines designed to inform, curb, or enable other actors to oversee discretionary agency actions. Administrative law is preoccupied with establishing procedures to prevent agency abuse and designing oversight by non-agency players – the President, Congress, private stakeholders, and, most obviously, the judiciary. All the core doctrines of administrative law are generally understood as implementing basic decisions regarding institutional choice: who does what? How should power be divided up amongst these institutions?
In Allocating Powers Within Agencies, Elizabeth Magill and Adrian Vermeule convincingly argue that in operation core administrative law doctrines are not only about institutional choice but also institutional design. That is, they do not merely allocate authority between agencies and other actors; they also have important consequences for who does what within agencies, for how the institution is designed. The paper elegantly reviews a number of familiar doctrines and explains the impact they have on how power is allocated within agencies. The article’s title seems to portend a discussion of how to go about constructing agency organizational charts. In fact, the article is not about such conscious allocation of responsibility at all. Rather, it explains how doctrines established without consideration for their impact on internal agency operations do in fact significantly affect how power is allocated within agencies. It thus makes an explicit and implicit plea that these impacts be thought through rather than incidental and haphazard. Continue reading "Institutional Design by Default"
T.P. Gallanis,
Death by Disaster: Anglo-American Presumptions, 1766-2006, in
The Law of Presumptions: Essays in Comparative Legal History (R.H. Helmholz & W. David H. Sellar eds., 2009), available at
SSRN.
Joshua C. Tate
The problem of simultaneous death has troubled inheritance law for many centuries. If a common accident kills both Mother and Son, and Mother’s will names Son as her primary devisee, does Mother’s property pass through Son’s estate to his heirs? Or does it pass instead to the person next in line under Mother’s will?
American teachers of trusts and estates know where to look for the answer to this question: a statute. Since the mid-twentieth century, widely adopted uniform acts have attempted to solve the puzzle of simultaneous death by establishing a presumption of survivorship. Yet this was not always the case. In his new article, “Death by Disaster: Anglo-American Presumptions, 1766-2006,” Thomas Gallanis explores the history of the Anglo-American law of simultaneous death from the eighteenth century to the present day. A modern lawyer may be surprised to learn that, for much of its history, the common law made no effort to establish legal presumptions to deal with the problem of simultaneous death. In addition, the statutory presumptions that were eventually adopted in England are quite different from their contemporary American counterparts. Continue reading "Inheritance and Presumptions"
June 28th, 2010
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Craig M. Boise | Tax
M. F. de Wilde,
Some Thoughts on a Fair Allocation of Corporate Tax in a Globalizing Economy, 38
Intertax 281 (2010) (abstract at
Scholars Portal).
Craig M. Boise
Tax scholarship produced abroad frequently offers a unique perspective on the same knotty domestic and foreign tax issues with which we wrestle here in the United States. A case in point is the recent article from Maarten de Wilde of Utrecht University, the Netherlands, which combines original thinking with elements of Dutch tax law in proposing a solution to perhaps the most perplexing problem in taxation today; namely, how to allocate the right to tax income between and among competing, sovereign jurisdictions, each of which asserts legitimate residence–or source–based claims to tax the global income of multinational enterprises (MNEs).
The current formula for global tax allocation attempts to assign a source to business income that reflects the physical location in which the income was produced. As de Wilde observes, however, the formula was developed in the 1920s, when there were far fewer MNEs, Europe was decades away from being economically integrated, and technological advances had not produced “e-commerce” and the bewildering array of intangible assets and financial products that are an integral part of the global economy and that have become increasingly difficult to source. Complicating the essential sourcing problem are state tax systems that are not only internally inconsistent in their treatment of income from domestic and foreign transactions, but also differ among one another in their choice of rates, taxable units, tax bases, treatment of deductions, definitions of particular entities, and a host of other matters. As a result, much business income is either subjected to double taxation, or to the extent MNEs are able to successfully arbitrage the differences among tax systems, no income taxation at all. Continue reading "Slicing the Global Tax Pie"
Jason Schultz
Patent lawyers, like many of our kind, are obsessed with classifications, determinations, and definitions: is a patent claim a true invention or is it part of the prior art? Is it an abstract idea or a specific method? Does it claim a means or a function? In fact, the very notion of intellectual “property” is premised on the idea that we can discern one category of things from another in order to establish metes and bounds and enforce exclusion.
No patent classification schema has been more controversial in recent years than that applied to patent litigation plaintiffs that do not make, use, sell or offer for sale a product or service. Are they trolls or investors? Are they rent-seekers or research incubators? Are they pests or pioneers? Such rhetoric has filled essays, academic articles, courtrooms and legislative halls without much actual evidence to support one characterization versus another. Continue reading "Finding a Place for Data in the Patent Troll Debate"
Robert F. Williams, The Law of American State Constitutions (Oxford University Press: 2009).
Pat Gudridge
Robert Williams, who teaches at the Rutgers-Camden Law School, is a long-time and very distinguished laborer in the field of state constitutional law – really, both a pioneer and a leader. His book looks, at first glance, to be a grand summing up, an attempt at magisterial synthesis. But it is in fact much better than that.
The table of contents tells the story. Continue reading "There There? Does State Constitutional Law Exist?"
June 17th, 2010
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Marcia L. McCormick | Worklaw
Marcia L. McCormick
Discrimination in employment on the basis of race, color, national origin, sex, and religion has been against the law since 1964, and while norms have certainly changed in that time, the number of allegations of discrimination in the workplace grows every year, suggesting that something is still not right. Figuring out what is a messy question, which is why studies of enforcement and interpretations of Title VII are so welcome to those of us interested in this area.
Margaret Lemos’s current article is no exception. Although the paper focuses mostly on an important gap in the administrative law literature—that is, even though there has been much written on why Congress delegates and how it chooses to delegate at all, very little has been written on how Congress chooses what institution to delegate power to and how to shape that delegation—it also reveals important data about enforcing Title VII, in large part because that statute provides her case study. Moreover, to the extent that so much of the employment discrimination literature focuses on issues concerning the substance of the law or lack thereof, a study of who is making that law fills an important gap in this literature as well. Continue reading "Enforcement and Institutions"
Carole Silver
In the 1970s, during the rise of what was then known as the women’s movement, one popular T-shirt proclaimed: “I haven’t come a long way, and I’m not a baby.” It was a clever riposte to a high-profile cigarette ad campaign of the era that linked smoking and feminism. That T-shirt slogan is one that female lawyers at large firms today might want to adopt as their own.1
In his new article, Eli Wald sheds light on why women in BigLaw have not yet come “a long way.” He explains that large law firms have adopted a professional ideology of hypercompetitiveness, which has transformed the firms into sites where the opportunity to pursue a balanced life is, by definition, completely absent. This is “bad news for women lawyers and for the prospect of greater gender equality in the legal profession.”2 (P. 2287). In fact, it’s bad news for everyone: according to Joyce Sterling and Nancy Reichman, in the same symposium, “the long hours are taking their toll on male associates as well,” which is confirmed also by Dau-Schmidt et al in the Michigan alumni study. Continue reading "Women and BigLaw: a New Look at the Problem"
Larry Alexander and Kimberly Kessler Ferzan (with Stephen Morse),
Crime and Culpability, Cambridge University Press (2009).
Margareth Etienne
In their important book on criminal law theory, Crime and Culpability, authors Larry Alexander, Kim Ferzan, and Stephen Morse, vigorously and deftly defend the view that criminal liability should turn solely on moral culpability. They argue that an actor’s moral culpability is based on her acts and the moral significance of her intent to commit certain acts with the knowledge that those acts unleash risks. As the authors divorce “resulting harm” from the culpability equation, they provide a useful glimpse of a criminal law system focused squarely on the actor’s choice to engage in risky acts. Their theory of culpability is not novel but their full sweep application of it here paints quite a picture—one with unusual results, as noted below. This book is both thought-provoking and thoughtfully written. It is hard to put down, at least figuratively. Like any worthwhile read, aspects of the authors’ arguments continue to haunt its reader long after the arguments seemed to have been put to rest.
Alexander, Ferzan and Morse begin their book with the odd concession that “criminal law’s purpose is the prevention of harm” and that the norms of conduct embodied in criminal law “exist for that purpose.” (P.17.) This is odd only because as retributivists, they disavow the importance of harm in assessing criminal culpability. Their “choice” theory of criminal law—a theory finding culpability in the choices we make that unjustly jeopardize the interests of others rather than in the results of those choices—leads to some curious results. Perhaps most notably, they argue for the elimination of negligent crimes on the ground that those offenses do not demonstrate an insufficient concern to the protected interests of others. They would also eliminate the line between offenses and defenses—that is the distinction between the prima facie elements of a charge and its exceptions or defeaters. In addition, they seek to do away with incomplete attempts (and the attendant substantial step formulations), as well as complicity, contending that only the unjustifiable risks that the actor himself unleashes beyond his control count toward culpability. As if all this weren’t sufficiently radical, the authors also propose designing a criminal code with no list of crimes or wrongs (e.g., rape, murder, robbery), but rather one where a finding of criminality rests on a generic finding of unjustifiable risk creation. In essence, there is so much fodder for comment and discussion in Crime and Culpability that one hardly knows where to begin. Continue reading "An Intriguing Thought Experiment on Culpability"
