Legal Theory Blog

Sullivan on Widiss on Gross v. FBL Financial Services

Charles A. Sullivan (Seton Hall University - School of Law) has posted The Curious Incident of Gross and the Significance of Congress's Failure to Bark (Texas Law Review, Vol. 90 , 2012) on SSRN. Here is the abstract:

This Response to Professor Deborah Widiss's Texas Law Review article, Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, is generally sympathetic to Widiss's concerns but cautions that she may be according Gross v. FBL Financial Services too much weight. Gross held that an amendment to Title VII liberalizing that statute's causation standard did not apply to the Age Discrimination in Employment Act.

Professor Widiss sees Gross as potentially creating a presumption that a congressional override of one statute requires related but unamended statutes to be interpreted differently than the amended enactment. While I agree that such a rule would be problematic, I argue that not only is Gross a deeply flawed decision unlikely to carry much precedential heft outside the situation it addressed but also that Professor Widiss underestimates the significance of a key limiting fact: the statute that amended Title VII to dilute the causation requirement also amended the ADEA, albeit in another respect. Surely, it is easier to infer in this setting an intent not to coordinate Title VII and ADEA causation standards than it would be had the Age Act never been addressed at all.

More generally, while I share Professor Widiss's preference for a more nuanced approach to statutory interpretation than the current Court manifests, I argue that courts should be hesitant to draw inferences from congressional silence since, Sherlock Holmes to the contrary notwithstanding, dogs don't bark for a lot of reasons.

Harcourt on Punitive Preventive Justice

Bernard E. Harcourt (University of Chicago - Law School) has posted Punitive Preventive Justice: A Critique (Forthcoming in Andrew Ashworth and Lucia Zedner, eds., PREVENTIVE JUSTICE, Oxford University Press., University of Chicago Institute for Law & Economics Olin Research Paper No. 599, U of Chicago, Public Law Working Paper No. 386) on SSRN. Here is the abstract:

This book chapter critically examines punitive preventive measures, such as preventive detention for dangerous individuals, stop-and-frisks on the street, and order-maintenance policing. After reviewing the traditional concern expressed about punitive preventive practices, the chapter investigates the empirical evidence in support of such measures, concluding that the purported need for these measures is, on balance, factually overstated and generally unproven. But the empirical problems foreground a deeper theoretical difficulty with punitive preventive justice, namely that the modern approach to punitive prevention relies predominantly on economic cost-benefit analytic methods that effectively displace political debate and contestation. Like earlier punitive preventive interventions — such as eugenics or phrenology — the modern approach is grounded on technical, scientific knowledge that privileges efficiency over most other political values and, in the process, tends to displace politics. The modern approach claims to be objective, apolitical, and neutral; it claims to be merely pursuing the most efficient policy option given an agreed-upon narrow objective. But it inevitably reintroduces political values and choices in its outputs. The approach also obfuscates criticism by making it harder for the layman to identify the political values embedded in the technical models. In the end, it insidiously degrades the public sphere and masks political redistribution. For these reasons, the chapter argues against punitive preventive justice.

Contreras & on Open Access Publishing & the Developing World

Jorge L. Contreras (American University - Washington College of Law) has posted Open Access Scientific Publishing and the Developing World (Antony's International Review 8 (no. 1) (2012): 43-69) on SSRN. Here is the abstract:

Responding to rapid and steep increases in the cost of scientific journals, a growing number of scholars and librarians have advocated “open access” (OA) to the scientific literature. OA publishing models are having a significant impact on the dissemination of scientific information. Despite the success of these initiatives, their impact on researchers in the developing world is uncertain. This article analyses major OA approaches adopted in the industrialized world (so-called Green OA, Gold OA, and OA mandates, as well as non-OA information philanthropy) as they relate to the consumption and production of research in the developing world. The article concludes that while the consumption of scientific literature by developing world researchers is likely to be significantly enhanced through such programs, promoting the production of research in the developing world requires additional measures. These could include the introduction of better South-focused journal indexing systems that identify high-quality journals published in the developing world, coupled with the adjustment of academic norms to reward publication in such journals. Financial models must also be developed to decrease the reliance by institutions in the developing world on information philanthropy and to level the playing field between OA journals in industrialized and developing countries.

Madison on "Madisonian" Fair Use

Michael J. Madison (University of Pittsburgh - School of Law) has posted Madisonian Fair Use (Cardozo Arts & Entertainment Law Journal, Vol. 30, No. 39, p. 101, 2012) on SSRN. Here is the abstract:

This short essay reflects on developments in the law, scholarship, and practice of fair use since the publication in 2004 of an earlier article on patterns in fair use practice and adjudication. It synthesizes many of those developments in the idea of “Madisonian” fair use, borrowing the separation of powers metaphor from James Madison’s work on the US Constitution and applying it, lightly and in a preliminary way, to copyright.

Cute title, Michael!

Recommended.

Afilalo, Patterson, & Purnhagen on the Market-State & European Legal Culture

Ari Afilalo (Rutgers University - School of Law), Dennis Patterson (European University Institute; Rutgers University School of Law, Camden; Swansea University School of Law), & Kai Purnhagen have posted Statecraft, the Market State and the Development of European Legal Culture on SSRN. Here is the abstract:

We consider whether the theory of the market-state can explain the features of a common European legal culture. Our thesis is that there is an extant EU legal culture, one which developed through the Europeanisation of law. The distinct European feature of this legal culture is the enforcement of market-state features in EU law. The concept of legal culture needs to be untied from a communitarian view by which culture “provides this group with its identity by establishing internal coherence and external difference, as well as relative consistency over time”. Culture hence needs to be viewed through a decentralized lens. As a nation-state heritage, EU law has developed a legal culture which does not follow purely market-state rationales, but rather balances these rationales against nation-state features such as human rights.

Highly recommended.

Raban on Capitalism, Liberalism, and Privacy

Ofer Raban (University of Oregon - School of Law) has posted Capitalism, Liberalism, and the Right to Privacy (Tulane Law Review, Vol. 86) on SSRN. Here is the abstract:

The constitutional right to privacy is a doctrinal mess. The United States Supreme Court appears incapable of articulating a coherent underpinning to this important line of cases, or - more likely - is simply unwilling to do so. And yet there is an obvious candidate for that job: the philosophy of liberalism. But liberalism is a notoriously complicated and contested philosophy. Thus, this Article proposes a succinct and functional articulation of liberalism, which it pursues through an analogy with the more familiar theory of capitalism. The Article then applies the ensuing framework to Supreme Court cases dealing with the right to privacy. As we shall see, the Court’s failure to follow liberal principles lies at the heart of its inconsistencies. Greater understanding of liberalism, and greater willingness to respect this political theory so deeply rooted in American history and tradition, could bring much needed coherence to this body of constitutional law.

Joy & McMunigal on Contingent Reward Plans for Prosecutors

Peter A. Joy and Kevin C. McMunigal (Washington University in Saint Louis - School of Law and Case Western Reserve University School of Law) has posted Contingent Rewards for Prosecutors? (ABA Criminal Justice, Fall 2011) on SSRN. Here is the abstract:

This column explores whether contingent reward plans for prosecutors are ethical. After weighing arguments in favor and against such plans, the column concludes that rewards for prosecutors contingent on trial convictions are unsound.

Greene on Fourteenth Amendment Originalism

Jamal Greene (Columbia University - Law School) has posted Fourteenth Amendment Originalism (Maryland Law Review, Forthcoming) on SSRN. Here is the abstract:

This essay, part of a symposium on Jack Balkin's Constitutional Redemption and Sanford Levinson's Constitutional Faith, seeks to explain the curious disregard many originalists show toward the Fourteenth Amendment. On common originalist premises, analysis of the text, history, and structure of the Fourteenth Amendment should predominate in discussions of incorporated rights, in affirmative action cases, and in federalism disputes, and yet originalist interventions into such discussions tend to minimize the amendment and Reconstruction-era history more generally. This essay suggests that the Fourteenth Amendment and Reconstruction represent less usable history than the Founding for several reasons: the Reconstruction amendments were largely failures in their own time; the open-ended language of the Fourteenth Amendment is not well-suited to settlement of modern controversies; and the Reconstruction era holds an awkward and contested place within our national memory. These limitations are consistent with the notion that originalism in practice is as much an ethical as a hermeneutic project.

Highly recommended.

Buchanan & Trubek on Public Interest Lawyering

Ruth Buchanan and Louise G. Trubek (Osgoode Hall Law School - York University and University of Wisconsin Law School) have posted Resistances and Possibilities: A Critical and Practical Look at Public Interest Lawyering (19 N.Y.U. Review of Law and Social Change) on SSRN. Here is the abstract:

In this article, we attempt to illustrate the “critical lawyering” perspective in three ways: first, by identifying some aspects of the traditional approaches to public interest lawyering rejected by the critical lawyers; second, by providing an overview of the critical lawyer’s constructive vision; and third, by recounting the stories of two new practitioners as they negotiate difficult transitions from traditional to critical lawyering approaches. We then make a number of observations regarding the matrix of personal, professional, and practical obstacles faced by public interest practitioners who seek to radically change their approach and realize the transformative potential of the critical lawyering vision. We seek both to advance critical lawyering as a viable alternative to traditional public interest practice and to explore the practical difficulties of its realization. We hope that this article may both inspire practitioners of public interest law to begin to rethink their own practices, as well as contribute to an emerging body of scholarship by examining some of the practical barriers to the realization of the critical lawyering vision.

Feinstein on Random Committee Assignments for the U.S. Congress

Brian D. Feinstein (Harvard Law School) has posted Congressional Government Rebooted: Randomized Committee Assignments & Legislative Capacity on SSRN. Here is the abstract:

Congress’s stature and relative role in governance are in the midst of a long-term decline. To mitigate this trend, this article proposes a novel change to the branch’s institutional design: replacing the current committee assignment system with the random assignment of members to committees. I argue that this reform would greatly enhance Congress’s internal capacity, altering the roles that party organizations, expert or deliberative committees, interest groups, and political minorities play in the policymaking process. Random committee assignment could also impact Congress-Court dynamics, encouraging greater use of legislative history in statutory interpretation and promoting a more deferential judicial posture in assessing the constitutionality of statutes. Finally, random assignment could facilitate greater congressional involvement in administration, particularly concerning committee oversight of executive agencies and use of the post-Chadha legislative veto.

Very interesting & recommended.