Education Moulds

Martha T. McCluskey (University at Buffalo – Law School) has posted Constitutionalizing Class Inequality: Due Process in State Farm (Buffalo Law Review, Vol. 56, pp. 1035-1057, 2008) on SSRN. Here is the abstract:

This essay takes a step toward building a story of economic class in U.S. constitutional law, as part of a special essay issue of the Buffalo Law Review developed from a series of workshops titled ClassCrits: Toward a Critical Analysis of Economic Inequality, sponsored by the Baldy Center for Law and Social Policy at the University at Buffalo. The essay focuses on the 2003 U.S. Supreme Court decision in State Farm Mutual Insurance Co. v. Campbell, one of a series of recent cases using the due process clause of the 14th Amendment to limit punitive damage awards against corporate defendants in tort litigation.

Many scholars analyzing economic inequality and the constitution have focused on the overt substantive questions of fundamental economic rights or equal protection for people in poverty. Instead, I argue that some of the most important doctrinal action on questions of economic class in the Constitution takes place under the rubric of procedure. First, class inequality is constitutionalized by casting substantive protections for wealthy capital owners in a procedural guise, as narrow technicalities or as neutral formal principles. Second, class inequality is constitutionalized by recasting basic procedural protections for the non-wealthy into illegitimate and anti-democratic claims to substantive rights.

On the surface, the State Farm case seems to present a fairly narrow doctrinal issue concerning punitive damages that generally seems marginal to general discussions of Constitutional economic equality rights. But beneath the narrow doctrinal issue lie assumptions about economic class that have broader implications. State Farm covertly revives the Lochner era ideology that fundamental procedural fairness requires insulating organized capital interests from government accountability or constraint. Even though U.S. doctrine has emphatically rejected the idea of heightened scrutiny for economic policies treating workers or the poor unequally, the State Farm decision surreptitiously adopts a “strict scrutiny” approach to examining economic harm to large businesses. Finally, the State Farm decision constitutionalizes class inequality by interpreting conscious class opposition to wealthy capital owners as fundamentally arbitrary and irrational.

Source: Lawrence Solum

Carter Dillard (Loyola University New Orleans) has posted Child Welfare and Future Persons
on SSRN. Here is the abstract:

While ethicists have delved deep into the rights and wrongs of procreating, lawyers have had little to say about the matter, stymied by practical concerns, the tendency of the law to ignore prospective children and their interests, and the misperception that a fundamental rights boundary absolutely forbids state intervention. But recently a small door has opened in this wall between law and ethics: as courts faced with having to repeatedly remove abused and neglected children from parents adjudged unfit have issued temporary no-procreation orders. As precedent builds and the possibility of ex ante regulation of procreation and parenthood grows, a moral and legal debate is developing over what duties prospective parents owe their future children and the society with which those children will interact. But increasingly the debate is a muddle of inapposite and conflicting state probation and constitutional law in search of statutory guidance. This Article attempts to cut through it, and to state the intermediate-level principle at its core:

A prospective parent has a moral and legal duty to be fit when he or she has a child, one arising from or creating correlative claim-rights shared by the state and prospective children, and a prospective parent has no liberty to have a child until he or she is fit.

Source: Lawrence Solum

M. Todd Henderson (University of Chicago – Law School) has posted The Nanny Corporation and the Market for Paternalism on SSRN. Here is the abstract:

Individuals in common pools-employees in firms, shareholders in firms, individuals in insurance plans, and citizens in a jurisdiction-want the managers of those common pools to act paternalistically toward other individuals, because this lowers the costs of being in the pool. The nanny state, which bans smoking in public places and imposes innumerable sin taxes, and the nanny corporation, which is starting to force employees to be more healthy, are simply responding to this demand. These two can thought of as competing in the "market for paternalism" to deliver paternalism to individuals that demand it.

Where nannyism is inevitable, as it is in a world in which others pay, the question then becomes which of the two sources of nanny rules – the state or the firm – is the most efficient supplier of paternalism. This essay describes numerous reasons why corporate nannies are superior to their state analogs in some cases. For instance, corporate policies are subjected to more instantaneous feedback from labor markets, which reduces overreaching but also helps solve information problems in ways likely to reduce the sum of decision and error costs.

There is, however, no theory under which the state or firm will always be superior at imposing nanny limitations on behavior. Because of this, we might expect firms to supply nanny rules when it is efficient for them to do so, say because of better monitoring, lower agency costs, or the like, and not to do so when government rules could be supplied at lower cost for a given efficacy level. The problem, however, is that there are government rules, regulations, statutes, constitutional provisions, and case law that may distort the market from efficiency. This essay makes the case for corporate nannyism and shows how government regulation may be biased without justification in favor of the nanny state.

And from the paper:

A final potential objection is the question of whether the potentially
corrosive impacts of nannyism on individual and social wellbeing that have been
documented are worse in the corporate or political context. Immanuel Kant
described the potential dark side of nannyism in his 1784 essay, “An Answer to
the Question: ‘What is Enlightment?’”132 Kant argued that the objects of
nannyism were living in a perpetual state of “immaturity,” which in turn created
a caste of “guardians” who would act opportunistically and to the detriment of the
governed. The end result was a society of “docile creatures” and “autocratic
despotism and profiteering or power-grabbing oppression.”133 Kant’s critique is
in accord with latter criticisms of collectivism by F.A. Hayek and others.134 But it
applies not only in cases of mass nannyism, but also in microcases, like at the
firm level.

And a bit further on:

There is reason to believe, however, that the nanny state will be worse at
creating docile bodies than the nanny corporation. For one, the state has a
monopoly on physical violence, and therefore individuals that violate state nanny
rules can have their liberty infringed. Although if calibrated correctly, this
increased punishment might simply provide additional deterrence at lower cost
than firms can provide, this result is highly dependent on getting the nanny rules
right. There are, for example, many examples of individuals being jailed for
violating state nanny regulations that seem to represent the influence of those
with political power more than efficient cost internalization methods.137
In choosing the lesser of two evils—worker sheep or citizen sheep—another
reason to favor corporate nannyism is that there are participation benefits in
public life that might be corroded by excessive nannyism by governments. In
other words, a democratic government may rely more heavily on having informed
constituents who are used to educating themselves and making reasoned
decisions than firms. This is because the fear of overextension that Kant worried
about is less likely to come to pass in the corporate context. In addition, the
barriers to adoption are much lower in the case of firms, while the market check
is lower in the case of the government. So if we want lots of nanny rules with
discipline, we should, ceteris paribis, choose corporations as the favored deliverer
of paternalism in the market.

Fascinating & creative paper.  Highly recommended.

Henderson's paper is focused on a positive account, although he does have some very interesting things to say about the normative questions.  His discussion of Kant (quoted) above points to an interesting convergence of aretaic and deontological normative theory.  On the surface, one might think that a virtue-centered (aretaic) theory of legislation would approve of "Nannyism" (certainly not the most neutral descriptor!).  And there is a sense in which this is correct: virtue jurisprudence (in its NeoAristotelian) variant holds that the central end of law is human flourishing understood as lives of social and rational activity in accord with the human excellences (or virtues).  This means that one of the central purposes of the system of social organization (including both government and the economic system) should be to create conditions under which citizens will acquire the virtues–and for children, this includes "parentalism" in both its literal and figurative senses.  But for adults, it is not clear that pervasive parentalism reinforces (rather than undermines) the virtues.  As Kant argues, parentalism may undermine various intellectual and moral capacities.  To put it more colloquially, forbidding vice may undermine virtue.

Read Henderson!

Source: Lawrence Solum

Jeremy A. Blumenthal (Syracuse University – College of Law) has posted Legal Claims as Private Property: Implications for Eminent Domain (Hastings Constitutional Law Quarterly, 2009) on SSRN. Here is the abstract:

May the government use eminent domain to take a private citizen’s right to sue? May the government take a citizen’s right to sue and exercise it — or even take the right to sue or a lawsuit and deliberately not exercise it? Even more controversial, may the government use eminent domain to condemn your legal claim and, consistent with its broad powers as delineated in Kelo, transfer that claim to another private party to pursue (or not)? In this Article I explore these questions, examining the Takings Clause implications of considering the right to sue as private property. I show that legal claims are private property for constitutional purposes; I show that government conduct of this sort would likely be acceptable as a “public purpose;” and I discuss what sort of “just compensation” might be appropriate when the government takes a private citizen’s lawsuit. Throughout, I discuss various policy implications of considering legal claims as private property.

Source: Lawrence Solum

Allison Brownell Tirres (DePaul University College of Law) has posted Lawyers and Legal Borderlands on SSRN. Here is the abstract:

This article explores the role of the legal profession in urban development along the U.S.-Mexico border in the nineteenth century. It argues that lawyers, through their tripartite roles as land brokers, boosters, and social engineers, were one of the primary forces in social and legal transformation during this period. Drawing from research on one particular border town, that of El Paso, Texas, this article counters prior scholarship that has largely either underplayed the role of lawyers in western development all together, or treated them merely as instruments of capitalists and cattle ranchers. Lawyers in El Paso had a direct role in the conversion of El Paso from an isolated, frontier community to a burgeoning border metropolis. A key part of this change was the shift from a cooperative multiethnic community – where Anglo Americans, Mexican Americans, and Tigua Indians shared in the governance of the county and the disposition of the law – to one that was dominated by Anglo Americans only. This article demonstrates that as El Paso became more connected to other metropolitan areas, to state and federal governments, and to transnational commercial networks, it simultaneously became profoundly more stratified by race and national identity. By looking to El Paso's legal history and the changes in its legal culture during this time of transition, we can see how deeply involved were local lawyers not just in economic growth but also in racial and cultural boundary-drawing. These findings have repercussions for how we understand both the role of the legal profession and the mechanics of urban growth and development during the nineteenth century.

Source: Lawrence Solum

Stephanie Plotin has posted Legal Scholarship, Electronic Publishing, and Open Access: Transformation or Steadfast Stagnation? (Law Library Journal, Vol. 101, p. 31, 2009) on SSRN. Here is the abstract:

This article uses a social shaping of technology perspective, which studies the complex interactions between technology and the culture of a discipline, to investigate the evolution of legal scholarship in the digital age, and to determine how the open access movement has influenced various forms of legal scholarship, particularly law reviews, their online companions, and legal blogs.

I just read this. Useful.

If I might get on my soapbox for a few seconds, institutional encouragement for open access should be a priority for every faculty.

Source: Lawrence Solum

Cambridge University Press has published Constitutional Rights in Two Worlds, South Africa and the
United States (Cambridge, 2009).  Here is a description:

The South African Constitutional Court has issued internationally
prominent decisions abolishing the death penalty, enforcing
socio-economic rights, allowing gay marriage and promoting equality.
These decisions are striking given the country's Apartheid past and the
absence of a grand human rights tradition. By contrast, the U.S. Supreme
Court has generally ruled more conservatively on similar questions. This
book examines the Constitutional Court in detail to determine how it has
functioned during South Africa's transition and compares its rulings to
those of the U.S. Supreme Court on similar rights issues. The book also
analyzes the scholarly debate about the Constitutional Court taking place
in South Africa. It furthermore addresses the arguments of those
international scholars who have suggested that constitutional courts do
not generally bring about social change. In the end, the book highlights
a transformative pragmatic method of constitutional interpretation, a
method the U.S. Supreme Court could employ.

And the table of contents:

1. Introduction; 2. History and background; 3.
Death penalty; 4. Gender equality; 5. Gay rights; 6. Affirmative action;
7. Freedom of expression; 8. Freedom of religion; 9. Socio-economic
rights; 10. Final thoughts.

And from the reviews:

"This book provides a perceptive examination
and critique of important areas of the jurisprudence of the South African
Constitutional Court. Professor Kende uses the South African decisions as
a prism for examining the case law of courts of other democratic nations
and especially the United States Supreme Court. It provides important new
insights into many areas of concern to scholars, judges, practitioners
and students."
–Richard J.Goldstone, Former Justice of the South African
Constitutional Court

"A fascinating, original, and genuinely important book,
illuminating not only the South Africa and American Constitutions, but
constitutional theory and practice in general. Indispensable
reading."
–Cass R. Sunstein, Felix Frankfurter Professor of Law, Harvard Law
School.

Source: Lawrence Solum

Paul H. Edelman (Vanderbilt University School of Law) has posted A Derivatives Market in Legal Academia (12 Green Bag 2d 157 (2009)) on SSRN. Here is the abstract:

Building on the success of derivatives markets in the financial arena, I show how similar markets can be used to hedge risk in legal academia. Prudent use of these markets will generate cash, mitigate errors in hiring, and increase the academic prestige of law schools. In short, they can do for legal academia what they have already done to the financial world.

And from the paper:

Consider the problem of High-theory Law School (HLS). It is
about to hire the BSC, but there is uncertainty as to whether he will
write anything that might burnish the HLS brand. On the other side
is Our Little Sisters of the Poor Law School (OLSPLS), which de-
sires to advance its scholarly profile but is unable to hire any candi-
dates who are likely to do so. Suppose that HLS bought a put from
OLSPLS for the writing of the BSC. If the papers that the BSC
writes are not very good, HLS can ship them off with any citation
counts, page counts, etc., now credited to OLSPLS. OLSPLS
makes some money on the front end and, even if the put is exer-
cised, gets credited for some scholarship that it would not likely get
any other way. HLS is protected from low quality work for a small
price. The downside risk to HLS of hiring the BSC is hedged, and
OLSPLS potentially gets some exposure that it would never see
otherwise.

Unfortunately, Edelman fails to specify the mechanism for the transfer of scholarship on an institutional basis–but we can easily imagine the adoption of the basic model of the film industry–where films are owned by firms rather the authors (auteurs).  This suggests the possibility of the emergence of a new model within the law school, with some faculty members assuming a role analogous to the "producer" in the film industry.  Producers would assemble teams consisting of specialists.  Such a team might consist of a doctrinalist, a normative theorist, an empiricist, a modeler, a data assembler, a cite checker, and a writer (and of course, some writers would specialize in rewrites that punched up the "market value" of the article).  Each team would have a project director, who would coordinate the tasks of team members.  Rather than a byline, published scholarship would be accompanied by a set of credits, e.g.:

Source: Lawrence Solum

Stephen C. N. Lilley has posted Suboptimal Executive Privilege on SSRN.  Here is the abstract:

Calls for political, rather than judicial, resolution of executive privilege disputes between the political branches of the federal government have become routine. This preference, however, lacks a theoretical basis in the existing literature even though executive privilege disputes give practical definition to the interaction of presidential secrecy and congressional authority. This Article offers the first comprehensive theoretical account and comparison of political and judicial resolution of executive privilege disputes between the political branches. It explains that both methods for resolving these executive privilege disputes are likely to produce constitutionally acceptable, but suboptimal, outcomes. Political resolution of these disputes is constitutionally valid but leaves room for improvement. Judicial involvement in executive privilege disputes between the political branches threatens the legitimacy of courts and their judgments. This and other concerns deprive courts of a convincing argument that they provide outcomes to executive privilege disputes that are constitutionally preferable to those reached by the political process. Courts conceivably could address those legitimacy concerns by sitting as courts of constitutional equity or doctrinalizing their discretion to entertain executive privilege disputes between the political branches. Such dramatic changes appear unwise and highly unlikely. A nondoctrinalized prudential discretion to entertain select executive privilege disputes between the branches appears likely to endure. This does not preclude all improvement, however. Courts can change their doctrine to encourage more productive negotiations between the political branches and thus improve upon suboptimal outcomes.

Source: Lawrence Solum

Robert M. Bloom (Boston College – Law School) has posted Border Searches in the Age of Terrorism
(Mississippi Law Journal, Vol. 78, 2008) on SSRN.  Here is the abstract:

This article will first explore the history of border searches. It will look to the reorganization of the border enforcement apparatus resulting from 9/11 as well as the intersection of the Fourth Amendment and border searches generally. Then, it will analyze the Supreme Court’s last statement on border searches in the Flores-Montano27 decision, including what impact this decision has had on the lower courts. Finally, the article will focus on Fourth Amendment cases involving terrorism concerns after 9/11, as a means of drawing some conclusions about the effect the emerging emphasis on terrorism and national security concerns will likely have on border searches in this post-9/11 world.

Source: Lawrence Solum