Education Moulds

Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense

Edited by Marie-Claire Foblets and Alison Dundes Renteln

As individuals travel across borders, societies have become more and more pluralistic. The result of increased migration is the interaction among cultural communities and inevitably clashes between state law and customary law. These cultural conflicts have given rise to a new multicultural jurisprudence. In this volume scholars grapple with the immense challenges judges are currently experiencing everywhere. To what extent can and should courts accommodate litigants’ requests by taking their cultural backgrounds into account?

This collection brings together powerful examples of the cultural defense in many countries in Western Europe, North America, and elsewhere. It shows the ubiquity of this defense, contrary to the mistaken impression that it has been invoked principally in the United States. This book makes the case for undertaking studies of the use of the cultural defense in jurisdictions all over the world where this has not been previously documented. Many of the chapters concentrate on criminal cases including homicide in the context of honour crimes, provocation based on ‘loss of face’ or witchcraft killings. Some deal with other areas of law such as asylum jurisprudence, family law and housing policy. They show in concrete cases how cultural claims have arisen and how legal systems wrestle with these arguments. It is clear that judges have had considerable difficulty handling many of the cultural claims. The authors demonstrate persuasively the need to reconsider the proper use of cultural evidence in legal proceedings. Those interested in the ways in which expertise influences the disposition of cases will find this book compelling.

Alison Dundes Renteln is a Professor of Political Science and Anthropology at the University of Southern California.

Marie-Claire Foblets is Professor Ordinarius of Law and Anthropology at the Universities of Leuven, Brussels and Antwerp in Belgium.

Source: Lawrence Solum

George C. Thomas III (Rutgers, The State University of New Jersey – School of Law-Newark) has posted Newspapers and the Fourteenth Amendment: What Did the American Public Know About Section 1? on SSRN. Here is the abstract:

For over sixty years scholars have debated whether Section 1 of the Fourteenth Amendment “incorporated” the Bill of Rights guarantees and thus made them enforceable against the states. Recently, the debate has turned to what the state legislators might have known when they ratified the amendment. In this paper, presented at the University of San Diego Law School on January 7, George Thomas discusses the body of evidence already available and then presents new evidence gathered from a search of newspaper archives for the period 1865 to 1869. He discovered one newspaper article that clearly makes the incorporation case and three others that offer lesser degrees of support for the proposition that educated men of the era were aware that Section 1 included the Bill of Rights. But 96% of the articles that discussed “privileges” and “immunities” gave no hint of a connection with the Bill of Rights.

I saw Thomas present this paper back in January. Recommended.

For my take, see Incorporation and Originalist Theory

Source: Lawrence Solum

Paul M. Schwartz (UC Berkeley School of Law) has posted Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes' Jorde Lecture (California Law Review, Vol. 97, No. 407, 2009) on SSRN. Here is the abstract:

This Essay responds to Stephen Holmes’ Jorde Lecture, which was
delivered at Boalt Hall on November 5, 2007. It builds on his model of
“public liberty” by discussing how private liberty, and information
privacy in particular, is a precondition for public liberty. For
Holmes, private liberty is largely a negative right – a right to be
free from governmental interference. In contrast, this Essay considers
privacy to be an element of public rights. Participation in a democracy
requires individuals to have an underlying capacity for
self-determination, which requires some personal privacy.

This Essay analyzes a number of Holmesian concepts through the
lens of the recent amendment of the Foreign Intelligence Surveillance
Act (FISA). In Part I, I describe the background of FISA, the National
Security Agency’s (NSA) warrantless surveillance program in violation
of this statute, and the amendments to this law in the Protect America
Act of 2007, a short term statutory “fix” that has expired, and the
FISA Amendments Act of 2008, which remains in effect.

In Part II, I turn to an analysis of the challenges to private and
public liberty posed by the NSA’s surveillance. I organize this Part
around three topics: (1) past wisdom as codified in law; (2) the impact
of secrecy on government behavior; and (3) institutional lessons. As we
shall see, a Holmesian search for the wisdom previously collected in
law proves quite difficult. FISA regulated some aspects of intelligence
gathering and left the intelligence community entirely free to engage
in others. Over time, moreover, technological innovations and altered
national security concerns transformed the implications of the past
policy landscape. As a result, the toughest questions, which concern
surveillance of foreign-to-domestic communications, do not receive an
easy answer from the past.

Regarding the impact of secrecy on government behavior, the analysis
is, at least initially, more straightforward. As Holmes discusses, the
Bush administration was adept at keeping secrets not only from the
public and other branches of government, but from itself. It is also
striking how little Congress knew about NSA activities while amending
FISA. The larger lessons, however, prove yet more complicated: strong
structural and political factors are likely to limit the involvement of
Congress and courts in this area. This Essay concludes by confronting
these institutional lessons and evaluating elements of a response that
would improve the government’s performance by crafting new
informational and deliberative structures for it.

Source: Lawrence Solum

Philip A. Wells (New York University School of Law) has posted iPolicing on SSRN. Here is the abstract:

In this post-broken windows crime-fighting landscape, new crime-fighting techniques must not only make cities safer, but also more trusting of their police departments. This paper proposes an estimated 106 million solutions to these needs, found in pockets across America: the cellular telephone.

These popular devices – equipped with audio, visual, and global positioning system (“GPS”) recording potential – pose an enormous technological opportunity for urban policing. Since these camera phones routinely capture major events that impact public safety – ranging from natural disasters to petty crime and police brutality – police should harness citizen multimedia through a voluntary “iPolicing” upload system, where ordinary citizens can e-mail police departments with emergent data. This sort of 9-1-1 e-mail system, modeled after the Cable News Network (“CNN”) “iReport” program, would help police react quickly and allocate existing policing resources more efficiently.

More importantly, however, a public iPolicing system would allow citizens to digitally participate in the policing process. As iPolice, citizens can take an active stake in the safety of their neighborhoods, foster interaction and communication between police and the constituents they serve, and begin mending the broken legitimacy of police departments. In a sense, iPolicing democratizes the policing process, making everyone a digital detective in their community, encouraging more citizens to participate in the law enforcement process. In doing so, iPolicing amplifies the finite resources of law enforcement and avoids the undesirable trade-off between security and legitimacy in post-broken windows cities across America.

A very intriguing student piece.

Source: Lawrence Solum

Lucian A. Bebchuk (Harvard University – Harvard Law School) has posted Buying Troubled Assets (Yale Journal on Regulation) on SSRN. Here is the abstract:

This paper analyzes how government intervention in the market for banks’ troubled assets is best designed, and also uses this analysis to evaluate the public-private investment program announced by the U.S. government in March 2009. I begin by presenting the case for using government funds to restart the market for troubled assets. I then discuss the advantages of providing government capital to competing privately managed funds, a strategy I have advocated in past work, and I outline the key elements that such a plan should include.

Based on this analysis, I propose three improvements to the government’s current plan:

• Introducing a competitive mechanism that would ensure that the government’s subsidy to participating private parties is kept at a minimum;
• Redesigning the plan to provide such private parties with incentives aligned with those of taxpayers rather than highly skewed incentives to overpay for troubled assets; and
• Precluding banks that hold significant amounts of troubled assets from participating as managers or private investors in funds set up under the program.

The proposed changes would address most of the concerns that have been raised by critics of the administration’s program. In particular, they would reduce costs to taxpayers, prevent excessive and unnecessary gains by private parties, and produce market prices that can be relied on for valuing assets that remain on banks’ books.

Source: Lawrence Solum

Patrick Joseph Borchers (Creighton University School of Law) has posted The Conflict of Laws and Boumediene V. Bush (Creighton Law Review, Vol. 42, No. 1, 2008) on SSRN. Here is the abstract:

The Supreme Court's 2008 decision extending the constitutional right of habeas corpus to non-citizen detainees held at Guantanamo Bay is a remarkable decision on many levels. Although the Supreme Court had previously held to a mostly sovereignty based, territorial methodology for determining whether U.S. constitutional rights would be extended extraterritorially, latent in the Court's jurisprudence had long been a strain of the "personal law" principle. That personal law principle was the analytical basis for reorientation of U.S. conflicts law away from territoriality to interest analysis. In Boumediene v. Bush, the Court was required to confront the competing territoriality and personal law strands of its jurisprudence. Its attempt to reconcile the two into a "functional" test mimics the same struggle that U.S. courts have had for the last four decades trying to accommodate those competing concerns on conflict of laws. Thus, this article argues that the Supreme Court's decision is best understood as a conflict-of-laws decision.

Source: Lawrence Solum

Theodore Eisenberg, Michael Heise, and Martin T. Wells (Cornell University – School of Law) have posted Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court’S Decision in Exxon Shipping Co. v. Baker
on SSRN. Here is the abstract:

Exxon Shipping Co. v. Baker acknowledged what virtually all methodologically sound punitive damages research shows. The Supreme Court relied in part on an article by the present authors and others to state that empirical studies undercut the most audible criticism of punitive damages and that no mass of runaway punitive awards existed. Paradoxically, the Court simultaneously expressed concern about jury predictability based on a high mean and standard deviation in the punitive-compensatory ratio published in our article. The Court therefore reduced a $2.5 billion punitive award relating to the Exxon Valdez oil spill to $500 million to implement a 1:1 punitive-compensatory ratio and stated that “the constitutional outer limit may well be 1:1.” This article shows that our empirical findings relied on by the Court do not support the unpredictability concern or widely applying the limiting ratio. The high mean and standard deviation are artifacts of not accounting for the key variable that explains punitive awards – the compensatory award.  Stratifying the mean and standard deviation of the punitive-compensatory ratio by the level of the compensatory award shows that the ratio is reasonably stable in high award cases and significantly and explicably more variable in low award cases. Basing doctrine on summary statistics that combine these heterogenous distributions is not statistically supportable. The award reduction in Exxon Shipping may have promoted consistency with other high compensatory award cases but the 1:1 principle the case hints at is not statistically supportable across the broad range of compensatory awards, and could contribute to an inability to tailor punitive awards to the facts and circumstances of particular cases.

Highly recommended.

Source: Lawrence Solum

George H. Taylor (University of Pittsburgh – School of Law) has posted The Distinctiveness of Legal Hermeneutics (RICOEUR ACROSS THE DISCIPLINES, Scott Davidson ed., The Continuum International Publishing Group, December 2009) on SSRN. Here is the abstract:

In the larger field of hermeneutics, legal hermeneutics is characteristically described as exemplary. While I detail ways in which legal hermeneutics is paradigmatic – particularly in its immersion in application to new cases – more generally I argue that its insights are more regional. I contend in particular that Paul Ricoeur’s hermeneutics offers much to refine the insights of legal hermeneutics, but the discreteness of the field of legal interpretation requires refinement of Ricoeur’s own theory.

The chapter proceeds in three steps. First, I briefly review the main themes of Ricoeur’s hermeneutics, particularly his emphasis on the semantic autonomy of the text, and draw upon examples from the American legal context that generally support and extend the significance of Ricoeur’s insight. Second, I turn to the limitations of Ricoeur’s general hermeneutics as applied to American legal interpretation. The author of the legal text does retain a significance in legal interpretation that is not required in other fields. Because a legal author – a legislature or court – requires obedience to the terms of a text it promulgates, its expression is limited to the range of its legitimate authority. Third, I show how the law can act as an exemplary form of hermeneutics in its attention to the application of meaning to particular circumstances. As Gadamer anticipated and as Ricoeur more expansively details, legal hermeneutics here does offer insights into a more general hermeneutics in its imaginative correlation between meaning and application.

Source: Lawrence Solum

Andrew Ralph Blair-Stanek has posted Understanding Bell Atlantic v. Twombly as Mathews v. Eldridge Applied to Discovery (Florida Law Review, Vol. 62, 2010) on SSRN. Here is the abstract:

The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous “plausibility” standard. This Article argues that Twombly was not revolutionary but simply part of the Court’s ever-expanding application of the familiar three-factor Mathews v. Eldridge test. Misused discovery can deprive litigants of property and liberty interests, and in some cases Mathews requires the safeguard of dismissing the complaint. This Article’s insight explains Twombly’s origins and structure, while also suggesting a source for lower courts to draw on in developing post-Twombly jurisprudence.

I read this note by a current law clerk with great interest–creative, provocative, and illuminating. It raises some very interesting questions:

–If discovery burdens on defendants compel the Twombly rule, what is the constitutional implication of discovery burdens on plaintiffs and third parties?

–What are the implications of the Seventh Amendment right to a jury trial for the application of Matthews to the question whether you get to a jury? Does this analysis in this article imply that extensive/expensive discovery is unconstitutional unless it is accompanied by strict pleading rules? How can that be reconciled with equity practice at the time the Due Process Clause was adopted at the end of the Eighteenth Century?

–Does the availability of a hearing to contest the burdensome discovery satisfy the Matthews test?

Source: Lawrence Solum

Over at Truth on the Market, Geoffrey Manne & Josh Wright have organized an online symposium entitled Section 2 and the Section 2 Report: Perspectives and Evidence. Here is a list of participants:

Surf over to TOTM for details.

Source: Lawrence Solum