Category: Jurisprudence

10

BRIGHT IDEAS: Deborah Rhode’s The Beauty Bias

Oxford University Press has just published Professor Deborah L. Rhode’s newest book, The Beauty Bias: The Injustice of Appearance in Life and Law. I got my copy from Amazon on Friday and enjoyed every moment reading it over the weekend.  The book is  illuminating and important: it explores the often unacknowledged, yet pervasive, discrimination against people, particularly women, who don’t conform to mainstream notions of beauty and appearance.   Professor Deborah Rhode is the Ernest W. McFarland Professor of Law at Stanford Law School.   She is the one of the country’s leading scholars in legal ethics and gender.  Professor Rhode is incredibly prolific: she has written over 20 books and countless articles.  She is the director of the Stanford Center on the Legal Profession and a columnist for the National Law Journal.  Before joining the Stanford Law faculty, she was a law clerk for Supreme Court Justice Thurgood Marshall.

Lucky for CoOp readers, I had a chance to interview Professor Rhode about The Beauty Bias.  I reproduce our conversation below:

DC:  What prompted you to write this book?

DR:  It partly started with shoes.  I have always viewed women’s footwear design as a haven for closet misogynists;  so much of what they produce is so dysfunctional for its primary purpose—comfortable walking.  Yet in many contexts, including my years as Chair of the American Bar Association’s Commission on Women in the Profession, I was struck by how often some of the nation’s most prominent,  powerful, and otherwise sensible women were hobbling about  in what we described in high school as “killer shoes.”  They were stranded in cab lines and late for meetings — held back both literally and figuratively — because of shoes.  And inconvenience is the least of the problems. High heels are a major contributor to serious back and foot problems, and four-fifths of women eventually experience such difficulties. A growing percentage are even willing to undergo foot surgery to fit into their designer footwear. I was sufficiently irritated to write an op for the New York Times and it triggered more of a response than probably anything I’ve ever published.

That experience underscored a question  I had long puzzled over.   Of all the inequities that the contemporary women’s movement has targeted, why have those related to appearance shown among the least improvement?  Half of American women report unhappiness with how they look, a figure greater than a quarter century ago. In a country where large percentages of the population can’t afford basic health care, cosmetic surgery is the fastest growing specialty. Our global investment in appearance is over  200 billion, and millions of individuals, particularly women, are paying a huge cost not just in money but in time,  physical health, and psychological well-being.  Discrimination based on appearance, especially weight, is among the most common forms of bias; it is much more frequent and equally arbitrary as many forms of discrimination that are now unlawful. But except in a few jurisdictions, bias based on appearance  is perfectly legal.

DC:  How does this fit into your broader scholarship?

DR:  As a legal academic with a particular interest in  gender equality,  I wanted a better understanding of where our preoccupation with appearance comes from, what costs it imposes, and what could we do about it from a policy perspective.  I’ve always been interested in the gap between our aspirations and achievements  involving social justice in general and women’s rights in particular.  Appearance raises those issues and provides a window on questions involving the law’s capacities and constraints in producing social change. Appearance discrimination has also attracted relatively little public or scholarly attention, and part of the problem  is that so few individuals realize that we have a serious problem.  This project offered the chance to provide the first comprehensive overview of the law in this area, and new  research on the experience  of  the few jurisdictions that explicitly prohibit some form of appearance discrimination.  And because I’m always interested in connecting research to practice,  I tried to write in a way that will be interesting and accessible to a broad public and policy audience.

DC:  Are you hopeful that we might combat this bias?

DR:  I’m optimistic about reform but not naive about what stands in the way. The importance of attractiveness is deeply rooted, and the economic stakes in its pursuit are enormous.  But the costs of  our preoccupation with appearance are also considerable and could be much more fully appreciated.   Many individuals realize that it hurts to be beautiful, but few  realize how much and how many billions are squandered in worthless or unhealthful cosmetic and weight reduction efforts. And even fewer of us realize how much it hurts not to be beautiful, or to conform to culturally prescribed norms that are much more demanding for women than men, and that compound disadvantages based on race, class and ethnicity.  Most Americans have bumped up against some aspect of the problem and might be energized to do something if they came to see this as not just an individual problem but a social injustice and cultural challenge. Read More

4

Frankness About Activist Judges

Professor Geoffrey Stone calls for frankness in discussing what judges in our country do. Focusing on federal constitutional law, he explains that the notion of judges as “umpires,” calling balls and strikes, is usually disingenuous.

Much federal constitutional text is not self-defining so engaging with those parts must be “active.”  Political operators are responsible for misleading a public discourse suggesting the deceptive notion that “liberal” judges are “activists” who “make up the law” while “conservative” judges simply “apply the law.”

This canard is not limited to federal constitutional law and is revealed clearly in a prominent recent opinion written by conservative Judge Frank Easterbrook.   Easterbrook faced a 40-year old statute setting a “fiduciary” standard to certain fee arrangements of mutual fund advisers.

Disregarding the statute’s plain text and meaning, and decades of uniform judicial interpretation, Easterbrook went out of his way to declare that, in his judgment, that statute is bad policy.  In a start of judicial activism, he made up a new definition of the word fiduciary, to mean making disclosure and “playing no tricks,” however outrageous the fees may be.

Read More

10

Rationalizing Law

For quite a long time, extensive empirical work in psychology, sociology, and behavioral economics has been revealing that many of the law’s most cherished rules are faulty.  They are based upon mistaken assumptions about human behavior.  They are often flat out wrong.  And yet they persist.

The work of Daniel Kahneman and Amos Tversky has shown that the human mind operates with all sorts of biases and heuristics that lead to systematic errors in judgment and perception.  As Dan Ariely put it in a recent work, Predictably Irrational (2008): “[W]e are not only irrational, but predictably irrational . . . our irrationality happens the same way, again and again.” (p. xx).  Richard Thaler and Cass Sunstein describe many of these systematic blunders in human judgment in their book, Nudge (2008).

As these studies increasingly make their way into legal scholarship, they are proving that many existing legal rules don’t work as they should.  And this is more than a mere normative critique.  The rules just fail because people don’t act or think the way the law thinks they ought to.  In fact, what we’re learning about the way people act and think is often counterintuitive.  It is hard to grasp and hard to deal with.

This research should be undermining many legal rules at their very foundations.  Yet the legal rules don’t seem to be shaken despite their foundations being annihilated.

In many domains, when something is proven flat wrong, it is confronted and dealt with.  If evidence shows that bleeding the patient isn’t a good cure for disease, then we move on and stop doing it.  But in law, if the evidence shows that a rule doesn’t work, what’s the response?  Often, it is to just accept the evidence with a grin and continue on.  If science were like law, we’d be talking about how the earth is round yet continuing to behave as if it were flat.

Read More

0

Trial By Battle and the Civil War

Recently I came across a great article by Cynthia Nicoletti entitled “The American Civil War as a Trial by Battle.” (28 Law & Hist. Rev. 71 (2010)).  Trial by battle was one the dispute resolution mechanisms used under the early common-law writ system (basically, the litigants or their champions fought in single combat and the winner won the suit).  The theory behind this was that God would ensure that justice would prevail (presumably based on a preponderance of the evidence, but who knows what He uses).

While this system eventually fell out of favor and was replaced by jury trial, the Civil War was often described as a trial by battle on the issue of secession.  This served the interests of both sides in the conflict. Southerners claimed that their legal reasoning was right–they just lost on the battlefield. Northerners used the metaphor because it showed that their victory was God’s will.  Indeed, Lincoln alluded to this idea in his Second Inaugural:

“If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”

4

Book Review: Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy

Arthur Ripstein Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press; October 15, 2009; $49.95)

Though Kant has been enjoying significant critical attention in moral and political philosophy since Rawls published A Theory of Justice almost 40 years ago, Kant’s ideas have only rarely been defended as a whole. The chief problem with Kant’s view, one which Rawls shared with Kant’s immediate successor Hegel, is that the notion of the categorical imperative is essentially too abstract and must be given a more concrete grounding. Constructivism was to be the way of doing this. Rawls thus rejected Kant’s metaphysical argument for morality and replaced it with an intuitive account of our own deep intuitions about justice, to be brought out by the procedure of the original position, later to be refined by the reflective equilibrium. Thus Kantian autonomy was to be cashed out in terms of respect for persons.

Arthur Ripstein, though broadly sympathetic to Rawls’s project, believes that the formal theory of right underlying Kant’s account of law in the Doctrine of Right (the first book of Kant’s Metaphysics of Morals 1797) is not only worth preserving, but worth championing. Ripstein’s excellent book thus proposes a comprehensive reading of Kant’s legal and political philosophy which insists that we can indeed build up a coherent system of rights from the simple idea of the innate right of humanity. Philosophically speaking, such an approach would reestablish a strong link between natural rights and positive rights and hence would go some way toward solving the vexing questions left open by Kant’s moral writings as well since the doctrine of right could then be used to make more concrete that very system.

The relation between Kant’s famous categorical imperative and the Metaphysics of Morals’ innate right of humanity is shadowy. While Ripstein does not attempt to vindicate the categorical imperative, he does provide an interesting argument through which to understand the relation between the categorical imperative and the universal principle of right (the principle which the innate right of humanity is based on, see below). The central problem to be resolved here is the relation between autonomy in morality and coercion in law. For, while the categorical imperative rejects all forms of coercion (and deception), the principle of right requires coercion. How can these two principles be made coherent without, for instance, reducing right to an instrument of the categorical imperative, something akin to Rousseau’s ill-understood idea that the state can force us to be free.

Read More

2

SCOTUS Chides Posner/Easterbrook in Jones v. Harris

In a gentle rebuke to two famous academic judges, Richard Posner and Frank Easterbrook, today the US Supreme Court told them a debate they were airing in a recent case was not for federal judges but for Congress.

The Court, in Jones v. Harris, unanimously vacated as erroneous Easterbrook’s opinion that went out of its way to disagree with well-settled judicial interpretations of a relatively simple federal statute. Posner’s contending opinion engaged directly with the economic and market theories on which Easterbrook drew, both judges wrongly making debate out of the wisdom rather than the meaning of the statute.

The statute says an adviser to mutual funds is “deemed to be a fiduciary with respect to the receipt of compensation for services.”   For thirty years, virtually all federal courts take that to mean adviser fees cannot be so disproportionate to services rendered as to indicate lack of an arms-length sort of bargain.    Testing that requires considering all relevant factors.

The Court affirmed that interpretation and test as correct, in an opinion written by Justice Samuel Alito. Easterbrook erred when instead saying the fiduciary duty language required only that advisers disclose fees and that no other factor is relevant. The Court indicates that his dissertation on competition in the mutual fund industry and theories of market behavior is irrelevant to federal court business in the case.

Posner’s opinion, in the form of a dissent from the Circuit’s refusal to rehear the case en banc, engaged Easterbrook directly on economic theories and views of market efficacy, including debating empirical academic studies reaching opposite conclusions. The Supreme Court rebuked both, saying their job was to apply the statute not debate its wisdom. Read More

0

Traditional v. Economic Analysis and Cardozo v. Posner

Scholars continue to debate the merits of traditional legal analysis compared to contemporary economic analysis of law. Each has virtues and both pose trade-offs. Adding to the extensive discourse, now available on SSRN is my new article probing the comparative appeal of these two approaches.

I offer a novel approach to the longstanding debate. I focus on judicial opinions of Benjamin Cardozo and Richard Posner. I use the context of tort law, where economic analysis has enjoyed most impressive success. I chose these two judges because their opinions appear more often than any other judge’s in current torts casebooks and they epitomize the competing methods.

My analysis led me to conclude that Cardozo’s traditional approach has the better of Posner’s economic approach. I would be delighted to hear criticism of the paper and its conclusions.

0

William Prosser and the Privacy Torts

I recently posted on SSRN a draft of my forthcoming article (with Professor Neil M. Richards of Washington University School of Law).  The piece is called Prosser’s Privacy Law: A Mixed Legacy, 98 California Law Review __ (forthcoming 2010).  It was written as part of a symposium “Prosser’s Privacy at 50.”

By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century.  And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today.  His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles in privacy law.

For this symposium, Neil and I examined Prosser’s influence and concluded that his legacy was mixed.  Here’s the abstract of our paper:

This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.

Comments are welcome.

0

Rethinking Free Speech and Civil Liability

I’ve been meaning to announce, but keep forgetting to get around to it, that my article with Neil Richards was recently published — Rethinking Free Speech and Civil Liability, 109 Columbia Law Review 1650 (2009).  Here’s the abstract:

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech.

Both of these rules are widely-accepted. However, there is a major problem – in a large range of situations, the rules collide. Tort, contract, and property law overlap significantly, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability. Surprisingly, few scholars and jurists have recognized or grappled with this problem.

The conflict between the two rules is vividly illustrated by the law of confidentiality. People routinely assume express or implied duties not to disclose another’s personal information. Does the First Amendment apply to these duties of confidentiality? Should it? More generally, in cases where speech results in civil liability, which rule should apply, and when? The law currently fails to provide a coherent test and rationale for when the Sullivan or Cohen rule should govern. In this article, Professors Daniel J. Solove and Neil M. Richards contend that the existing doctrine and theories are inadequate to resolve this conflict. They propose a new theory, one that focuses on the nature of the government power involved.

In Columbia Law Review’s Sidebar, Professor Timothy Zick has a very thoughtful response piece entitled “Duty-Defining Power” and the First Amendment’s Civil Domain.