Category: Legal Theory

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What’s Theory Got To Do With It? Contract Social Responsibility (Part 5)

Prior posts have developed the claim that contract is being used to achieve “social responsibility,” e.g., protecting labor-rights and the environment in supply chain contracts, and preventing racial discrimination in “inclusion riders.”  Assuming parties contract for social responsibility (“KSR”), what might legal theory say about it?

An important strain of contract scholars (“contractualists”) would start from a micro-economic analysis, and ask whether KSR should qualify as “rational” market behavior.  Consider, for example, Schwartz and Scott’s influential statement of contract theory.  Their “affirmative claim” is that “contract law should facilitate the efforts of contracting parties to maximize the joint gains (the “contractual surplus”) from transactions.”

I confess at the outset that I think this mode of analysis can be powerful.  But I am not sure how well it works with KSR, which is what I want to talk about here.

Contractualists, per S&S, might argue that KSR “maximizes joint gains” because it cashes in good publicity, avoids losses, or both.  As observed in prior posts, “doing good” apparently has market appeal, leading to “fair trade,” “green sourcing,” and so on.  Moreover, at least in the supply chain context, it appears that buyers may contractually shift losses to parties that violate KSR terms.  These and similar features of KSR might well maximize welfare.  To this extent, contractualist analysis would account for KSR.

So far, so good.  But there’s a problem.  Schwartz and Scott continue:

The[ir] theory’s negative claim is that contract law should do nothing else. . . . [T]he state should choose the rules that regulate commercial transactions according to the criterion of welfare maximization. . . . A simple categorization of the universe of bargaining transactions will clarify the domain of our theory. A transaction involves a seller (whether of goods or services) and a buyer.

That is, contractualism assumes that contract is private, pre-political, and bilateral (that is, between two parties).  But KSR challenges each of those assumptions. Read More

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Why is Business Law Education So Bad?  Value-Creation by Law Professors

The question posed in the title of this post—why is business law education so bad?—was first asked in a famous and provocative 1984 paper by Stanford law professor Ronald Gilson, Value Creation by Lawyers.

That paper is best known for developing a micro-economic answer to a different—but ultimately related—question: Why would anybody pay for business transactional lawyering?  And, if no one would (or should) pay for those services, why should anyone pay (or be paid) to learn (or teach) them?

The price of bad education

Although the questions are not new, they have become more important as technology and markets transform the practice and study of law.

Gilson argued that there was an economic explanation: lawyers produce and verify information that brings the deal price closer to a hypothetical “true” market value.

Although this question—and Gilson’s answer—have received the most attention, Gilson also had important observations about legal education.  Boiled down, he suggested that law schools should: (1) expose students to the actual transactions in which they were likely to participate; and (2) teach them a legal theory that would help to explain both why these transactions occurred, and why (and how) lawyers would add value by performing services in them.

When Gilson wrote this, law schools struggled with both because, among other things, most legal academics had little transactional experience.  In the more than thirty years since Value Creation, however, law schools have exploded with courses that achieve the first goal, exposure.  It would be difficult today to find a law school that did not offer some form of skills training to prepare law students for careers as business lawyers.  A large and growing literature describes in exquisite detail how to design and teach these courses.

Yet, so far as I can tell, neither the courses nor the literature engage the second half of the problem as Gilson framed it, legal theory. (I put to one side clinics, which have their own literature, as well as skills supplements for traditional classes).  Rather, they focus on “transactional skills” qua skills, such as drafting and negotiating—admittedly vital functions—without considering how legal theory might explain, explore, enhance or critique them.  They have taken half of Gilson’s recommendation and declared victory.

This is a problem for two reasons. First, it seems indifferent (perhaps hostile) to the role that legal theory and scholarship could play here.  Transactional skills literature reads as a series of “recipes,” how-to-get-to-yes-guides insensible to the possibility that, in many deals, “no” may be better the answer. Read More

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UCLA Law Review Vol. 64, Issue 6

Volume 64, Issue 6 (December 2017)
Articles

Inner-City Anti-Poverty Campaigns Anthony V. Alfieri 1374
Movement Lawyers in the Fight for Immigrant Rights Sameer M. Ashar 1464
From Stop and Frisk to Shoot and Kill: Terry v. Ohio’s Pathway to Police Violence Devon W. Carbado 1508
The Puzzle of Social Movements in American Legal Theory Scott L. Cummings 1554
Varieties of Constitutional Experience: Democracy and the Marriage Equality Campaign Nan D. Hunter 1662
Community in Conflict: Same-Sex Marriage and Backlash Reva B. Siegel 1728

 

Comments

Rebellious Social Movement Lawyering Against Traffic Court Debt Veryl Pow 1770
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Calling All SCOTUS Clerks: Illuminating New Book on the Fourth Amendment and Its Original Meaning as a Guide for Carpenter

On June 5, 2017, the Supreme Court announced that it will review United States v. Carpenter, a case involving long-term, retrospective tracking of a person’s movements using information generated by his cell phone. As EFF’s Andrew Crocker and Jennifer Lynch write, “This is very exciting news in the world of digital privacy. With Carpenter, the Court has an opportunity to continue its recent pattern of applying Fourth Amendment protections to sensitive digital data. It may also limit or even reevaluate the so-called ‘Third Party Doctrine,’ which the government relies on to justify warrantless tracking and surveillance in a variety of contexts.”

SCOTUS clerks will surely be reading much Fourth Amendment literature and caselaw in preparation for their work on the Carpenter case. I’d like to nominate David Gray’s brilliant addition to the canon The Fourth Amendment in an Age of Surveillance (Cambridge University Press 2017).

From the book jacket:

The Fourth Amendment is facing a crisis. New and emerging surveillance technologies allow government agents to track us wherever we go, to monitor our activities online and offline, and to gather massive amounts of information relating to our financial transactions, communications, and social contacts. In addition, traditional police methods like stop-and-frisk have grown out of control, subjecting hundreds of thousands of innocent citizens to routine searches and seizures. In this work, David Gray uncovers the original meaning of the Fourth Amendment to reveal how its historical guarantees of collective security against threats of ‘unreasonable searches and seizures’ can provide concrete solutions to the current crisis. This important work should be read by anyone concerned with the ongoing viability of one of the most important constitutional rights in an age of increasing government surveillance.

Here is a video of Prof. Gray talking about the book: https://www.youtube.com/watch?v=pHUNRndaYIo

 

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Symposium on Carol Sanger’s “About Abortion”: Introduction & Commentaries

What follows is an online symposium concerning Professor Carol Sanger’s latest book, About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017) (table of contents here). Links to the Introduction and Commentaries are set out below.

Related

Professor Carol Sanger

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Journal of Legal Education — Interview with Judge Harry T. Edwards on Legal Scholarship

Judge Harry T. Edwards

Judge Harry T. Edwards

The latest issue of the Journal of Legal Education is out and contains, among other things, my question-and-answer interview with Judge Harry T. Edwards on the topic of legal scholarship. The interview is prefaced with a short biographical profile of the Judge and closes with a bibliography of all his published works.

Among other things, the interview contains the Judge’s responses to some of those who have commented on his writings on legal scholarship (17 articles), including Judge Richard Posner, Dean Erwin Chemerinsky, and Professors Michael Dorf,  Lee Petherbridge, Pierre Schlag, and David L. Schwartz.

Here are a few excerpts [brackets added]:

  • [The only African-American] When I entered the University of Michigan Law School in 1962, I was the only African American in my class. I graduated very high in my law school class, earning a number of honors for academic achievement. Nevertheless, when I finished law school, many major law firms to which I applied for jobs rejected me. I was told quite frankly by some of the hiring partners that, despite my strong academic record, the firms would not hire a Negro. It was only when my white mentor, Michigan law Professor Russell Smith, pressed on my behalf that I received a job offer from a major Chicago law firm.
  • [Best kind of legal writing] In my view, “legal writing” at its best is precise, carefully reasoned, and well-supported (by both facts and governing principles). It should not be meandering, pointless, frivolous, or pedantic.
  • [Addressing law’s purpose] There are still law professors who express disdain for the practice of law, and offer no concrete proposals for reform. In my view, this is unacceptable. In constructing a vision of legal education, I agree with Professor J.B. White, who once wrote that, in order for legal academic work “to be of value to the law it is essential that the work in question express interest in, and respect for, the possibilities of what lawyers . . . do.” This means that a good body of legal scholarship must address law’s purpose of serving society. Not all legal scholarship, but a good body of it.
  • [Abstract scholarship] There is certainly value in some abstract scholarship. I have never doubted this. But it should not be preferred over other forms of scholarship. In order for legal scholarship to be relevant outside the legal academy, law professors should balance abstract scholarship with scholarly works that are of interest and use to lawyers, legislators, judges, and regulators who serve society through legal arguments, decision-making, regulatory initiatives, and enforcement actions. In other words, law schools, law reviews, and legal scholars should do a better job in producing scholarship that is of interest and use to wider audiences in society.
  • [Theory-laden articles] Law review editors have come to understand the law schools’ preferences for obscure philosophical and theory-laden material, in part because they have received so many articles of this stripe in recent years. And the law reviews have accommodated these forms of scholarship, largely without protest.
  • [Blogs] The worry that I have with law blogs (as with many Internet sites that purport to report and comment on the news) is that they sometimes report and comment too quickly on judicial decisions. As a result, blogs do not always capture the important nuances of an opinion or the precedent that underlies the decision.
  • [Gulf between academy & the profession] Unless law schools ensure that their faculties reflect a real balance of talent—i.e., including professors with strengths in both concrete and abstract scholarship and teaching—the current gulf between the profession and the academy will continue to grow and become even more distressing.
  • [Hitting a nerve] The reactions from the bench, bar, and academy [concerning my article “The Growing Disjunction Between Legal Education and the Legal Profession“] were more than anything I ever anticipated. One of my former colleagues at the University of Michigan Law School, who will remain unnamed, sent me a funny and poignant letter which said something like: “Obviously, you hit a nerve. And what is so amusing is that the members of the academy cannot simply dismiss your critique because you are a member of the academy and know what goes on in our ranks.”
  •       → There is more, much more, to our interview, so go here for the entire exchange. ←  

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Writing as a career and passion

As a young scholar the desire to be read, invited to conferences, and cited is strong; but how to obtain these glories is unclear. Should one write and have faith that good work will be found? Or is there more to do? The New Republic’s recent review by Sam Sacks of two short story collections offers two benefits; it suggests two collections and looks at the ongoing tension between professional versus artistic creation. Exploring this tension should help answer what to do as a scholar.

The first collection, The Unprofessionals, edited by Lorin Stein comes from the Paris Review, and according to Sacks “defines itself against the emergence of a hyper-professionalized breed of fiction writer.” Sacks points to the editor’s preface which criticizes the trend of young authors’ using social media to self-promote and as the editor put it “to think of themselves as professionals: to write long and network hard.” Stein’s work is “a kind of elite artist’s colony whose sole mandate is the refinement of craft.” In contrast, Sacks offers New American Stories. Sacks calls its editor Ben Marcus “an emissary for a wide range of writers on the margins of the mainstream.” Thus according to Sacks, “Stein is an editor charged with elevating the few from the many, Marcus has emerged as an emissary for a wide range of writers on the margins of the mainstream.” As Sacks says, “If The Unprofessionals is like a beautifully unified concept album, New American Stories is, to use Marcus’s analogy, a mixtape.” Sacks hits notes that matter to academics as professionals, when he talks of politics.

As Sacks offers:

Two anthologies, two visions of American fiction: one exclusive, one eclectic; one that seals its ears to the clamor of the industry, one that takes inspiration from the chorus of voices being published. The second vision has the stronger sense of political purpose. Many new writers want to be read and discussed by a large audience, to be noticed by prize committees, to take an active part in the cultural conversation—all activities of the so-called professional—not because, contrary to Stein’s opinion, they’re out for money, but because this kind of recognition is central to the politics of their writing.

Much the same could be said of scholarship. There can be the current in-crowd orthodoxy that has a certain style and approach. It can be exclusive and seem to anoint stars. There can also be the out-crowd with its orthodoxy and anointed but that seek to challenge the status quo just as Sacks says, “The stories in Marcus’s anthology reflect the interest many new writers have in rearranging social hierarchies and redefining terms of normalcy.” Sacks further helps understand the politics when he discusses an essay by Parul Sehgal. Seghal looked at a novel that used a new form and said the project and style was “less a performance of alienation than a passionate effort at reconciliation.” Thus according to Sacks, the goal of writers such as those in the Unprofessionals, “writers traditionally left outside of the conversation” is “to be recognized as professionals.” If professional means one’s ideas have been taken mainstream (and in Portlandia parlance “you are so over”), I think Sacks sums up where scholars hope to be too. Challenging current ideas and scopes of concerns can be lonely. As one finds a community to work with and the work gains traction, the work may go mainstream. At that point, enjoy the ride. The newbies will come to show you what you missed. But there is more to it than being professional. As Sacks goes through the authors in the collection, you get a sense of what might matter depending on what you like to read or how you want to be challenged. At the very least you get a list of names to ponder and pursue. But his key point applies to scholars too.

Sacks saves his highest praise for Denis Johnson, “Johnson could be in Stein’s anthology as well as Marcus’s (he’s appeared in The Paris Review repeatedly over the years).” And here is the key:

But that just means that he’s achieved the aim of all writers: He’s transcended categorization. It no longer makes any difference how you label him—professional or unprofessional—since he’s written fiction good enough to outlive him.

Somethings never change.

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Centralizers: Uber vs the Others (Lyft, Didi Kuaidi, Ola, and GrabTaxi)

Uber is looking to raise more than $2 billion; Lyft, Didi Kuaidi, Ola, and GrabTaxi have formed a global alliance to counter Uber. Where or where is the disruptive scrappy tech savior? Answer: It existed briefly and the next phase is with us. In The New Steam: On Digitization, Decentralization, and Disruption I argued that [T]his era of disruption and decentralization will likely pass and new winners, who will look much like firms of old, will emerge, if they have not already.” I was building on the ideas Gerard Magliocca and I explored in our work on 3D printing. Although some technologies have helped decentralize production and distribution, to think that centralized players would all go away or new ones not emerge is a mistake. I was focused on safety, stability, liability and insights from Douglass North.

As I said in the paper:

Douglass North captures a paradox that goes with transaction costs. Greater specialization, division of labor, and a large market increase transaction costs, because the shift to impersonal transactions demands higher costs to: 1) measure the valuable dimensions of a good or service; 2) protect individual property rights; 3) enforce agreements; and 4) integrate the dispersed knowledge of society.26 Standardized weights and measures, effective laws and enforcement, and institutions and organizations that integrate knowledge emerge, but the “dramatic increase in the overall costs of transacting” is “more than offset by dramatic decreases in production costs.” Digitization forces us to revisit these issues.

Uber’s success and the response of the other players raises another point. Although I think that society will favor centralized players in the long run, because that allows for some regulation; the process of centralization may also occur for simpler reasons. When one big player starts to break away from the pack, the rest may co-operate or consolidate to keep pace. There may be one winer or a handful. Either way, as Seattle now allows Uber and Lyft drivers to unionize and calls for more regulation continue, the former disruptors will be seen as the new centralized power and treated as such. The reasons offered for that treatment are what draw my interest and where legal theory has and will see some action.

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Can We Tolerate Tolerance?  

This is the third in a series of occasional short essays about free speech in America. Earlier installments can be found here and here.

We live in a tolerant society. Of course, that is an exaggeration. But when it comes to so many flashpoint issues – ranging from blasphemy to race-hate speech – we are far more tolerant than almost all other nations, so much so that we are routinely criticized for being too tolerant. It is our badge of honor . . . and dishonor.

Professor Mark Lilla

Professor Mark Lilla

Mindful of the events in France and Denmark earlier this year, I wonder: Will we continue to tolerate toleration if our world takes a terrible turn? My question has less to do with what is being tagged as the “terrorist’s veto” than with a more complex problem, and one therefore even more difficult to resolve. This problem occurred to me when I first read an eye-opening essay by Mark Lilla in the New York Review of Books, an essay entitled “France on Fire.” Here is a very brief excerpt:

“For the past quarter-century a political and intellectual culture war over the place of Islam in French society has been bubbling along, and every few years some event — a student wears a burka to school, riots erupt in a poor neighborhood, a mosque is attacked, the National Front wins a local election — renews hostilities.”

I want to extrapolate from that essay (at once insightful and provocative) in order to outline a phenomenon that may be hurling our way, a phenomenon related to toleration and dissident speech.

Before I do, however, let turn to the glorious side of the toleration equation by way of a well-known case, West Virginia State Board of Education v. Barnette (1943). Recall the Jehovah’s Witnesses’ flag-salute case, the one with that liberty-inspiring majority opinion by Justice Robert Jackson. In words that should be fixed in every lawmaker’s consciousness, Jackson declared: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” The judgment in that case affirming First Amendment freedom is all the more amazing given that it was rendered in wartime and involved a religious sect that was then very much hated in various quarters of American society. (See Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000).)

The (Hypothetical) Problem

Against that backdrop, imagine the following scenario. Assume that the editors of a respectable libertarian magazine elected to publish several satirical cartoons of the Prophet Muhammad in order to make a First Amendment point and to take a stand against the “terrorist’s veto.” Assume thereafter that the Charlie Hebdo incident replayed itself in Cincinnati (the headquarters of my hypothetical magazine). Ten people who work for the magazine are murdered and two Muslim extremists take credit. Both of the terrorists are later killed in a shootout with police that also results in the deaths of two local police officers.

Here is where I begin to extrapolate from Professor Lilla’s essay. Now assume the following additional scenarios, replete with a few quotations from the Lilla essay”

  1. The Governor of Ohio calls for a moment of mourning with heads bowed on the day following the tragedy (say, the time is 11:00 a.m.);
  2. A “noticeable number” of Muslim public high school students in Cincinnati refuse, on religious and political grounds, to bow their heads;
  3. “And not only that. Some [tell] their teachers that the victims got what they deserved because no one should be allowed to mock the Prophet”;
  4. “Others celebrate the killers on social media, and circulate rumors that the entire crisis was manufactured by the government and/or Zionist agents”; and
  5. The parents (some of whom work for state and local governments) of some of these Muslim-American students speak openly (though not at work) to defend their children and endorse the positions they took.

Note that the Muslim-Americans in the above scenarios were otherwise peaceful and law abiding. And some Muslim-American leaders sought to counteract the messages of the violent extremists among them. That said, let me stir the pot a bit more with a few more scenarios and related questions:

  1. So far as government entities are involved, how far are we willing to go to accommodate (culturally, statutorily, and constitutionally) the religious views of the more observant and separatist Muslim-Americans who harbor what we would see as extreme views concerning homosexuality, female purity, and Jews and Israel?
  2. Finally, let me again from quote Professor Lilla to raise a final question: Some “students and their parents demand separate swimming hours or refuse to let their children go on school trips where the sexes might mix. . . . There are fathers who won’t shake hands with female teachers, or let their wives speak alone to male teachers. There are cases of children refusing to sing, or dance, or learn an instrument, or draw a face, or use a mathematical symbol that resembles a cross. The question of dress and social mixing has led to the abandonment of gym classes in many places. Children also feel emboldened to refuse to read authors or books that they find religiously unacceptable: Rousseau, Molière, and Madame Bovary. Certain subjects are taboo: evolution, sex ed, the Shoah. As one father told a teacher, ‘I forbid you to mention Jesus to my son.’” Does our commitment to religious freedom extend that far so as to accommodate the genuine religious views of those who hold them?

Let me be clear: I do not mean to demean Muslim-Americans as a class, nor do I wish to be understood as saying the above scenarios mirror the sentiments of most Muslim-Americans . I trust they are not. Then again, I may disagree with some of them, and sometimes vigorously, on several of the issues flagged above. But I also believe in toleration, and the ever-present need to be sensitive to the plight of minorities of all ideological, political, and religious stripes.

So where does that leave us?

Testing Our Tolerance Read More

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UCLA Law Review Vol. 62, Issue 3

Volume 62, Issue 3 (March 2015)
Articles

Fixing Public Sector Finances: The Accounting and Reporting Lever James Naughton & Holger Spamann 572
Less Enforcement, More Compliance: Rethinking Unauthorized Migration Emily Ryo 622
Decriminalization, Police Authority, and Routine Traffic Stops Jordan Blair Woods 672

 

Comments

Not Whether Machines Think, But Whether Men Do Jane Stack 760
Fighting for a Place Called Home: Litigation Strategies for Challenging Gentrification Hannah Weinstein 794