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Criminal Law\u27s Hidden Consensus
Get PDFAmerican criminal law is facing a crisis of meaning. On one hand, the “traditional school” invokes the archetype of the violent criminal—a murderer, rapist, or thief—who must be prosecuted and punished. On the other hand, the “critical school” invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law minimalism. It shows that, in fact, both schools share a hidden consensus: redressing wrongs. For the traditional camp, the wrong is harmful human conduct. For the critical camp, the wrong is the criminal legal system.
Furthermore, such consensus extends to deep, shared values in American society. It includes fair elections, public integrity, and law enforcement equity—counterintuitively, evident in polarized debates about prosecution of January 6th insurrectionists, Congressman George Santos and Senator Robert Menendez, and Officer Derek Chauvin. Thus, criminal law is not and should not be confined to the archetypes of the murderer or low-level drug offender—it also concerns itself with the election insurrectionist, corrupt politician, and deadly police officer. Finally and prescriptively, this Article will show that this hidden consensus is both a sword and shield for the existing system, guiding us toward a justification for criminal law minimalism
Abortion Politics and the Rise of Movement Jurists
Get PDFThis Article employs the Supreme Court\u27s decision in Dobbs v. Jackson Women\u27s Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena.
In this Article, we focus on one type of judge ascendant in the current constitutional moment: the movement jurist. Although movement judges are not new, they are more visible and influential today than in recent years. In fact, identifying this kind of figure - who is already shaped by movement beliefs or shares social experiences making such a person open to non-establishment constitutional perspectives - has emerged as a potent supplement to older methods of entrenching mobilized legal knowledge and political beliefs. By peering behind the Dobbs decision and offering fresh context, we present a new set of analytical terminology for understanding the touchpoints between law, institutions, and politics. Along the way, we offer a corrective to what are often uncritical calls for more movement jurists.
Judging involves its own institutional imperatives and purposes, many of which are at odds with social activism. There are reasons why we might want judges under certain circumstances to pay attention to movements, and we discuss what some of those institution-enhancing and constitution-interpreting reasons might be. But there are risks as well. Movement judges need not be committed to any particular vision of justice or democracy or even interpretive methodology - as Dobbs plainly shows, it is more accurate to identify movement judges by their constitutional politics and social networks rather than by party affiliation.
We describe the characteristics of movement judges so their legal output can be evaluated with this crucial context in mind. Adopting a historical and institutional perspective, we point to some benefits that can come from having the occasional movement figure join the judiciary. But we also offer some words of caution about corresponding tradeoffs when too many movement figures appear within a single organization like the Supreme Court
The Limits of Diplomacy by Treaty: Evidence from China’s Bilateral Investment Treaty Program
No full textThe web of over 3000 Bilateral Investment Treaties (“BITs”) is the primary body of international law regulating cross-border investments. Research suggests that these treaties may have had a limited impact on promoting new investments, but that they still may have helped to improve countries\u27 political relationships. In this paper, we document that this pattern was reversed for one of the most prolific signers of BITs: China. Using a stacked-event research design, we find that Chinese BITs are associated with an increase in Bilateral Foreign Direct Investment Flows but a divergence in voting patterns at the United Nations. We then explore two explanations for why the Chinese BIT program led to increased investment while also producing foreign policy divergence: that the domestic political costs of economic engagement with China push countries away, and that there are offsetting international pressures that have stronger pulls than China\u27s efforts. We find no support for the domestic political costs explanation, but we do find evidence that the countries that received increased aid from the United States after signing a Chinese BIT had greater foreign policy divergence with China
The Chicago School’s Coasean Incoherence
Get PDFThis comment traces the divergent legal academic interpretations of the Chicago School\u27s Ronald Coase and where their influence lands--revealing the law’s inconsistent conception of just what a corporation is or should be. By following Alyssa Battistoni\u27s investigation of the origin of the externality, we can see the late 60s and early 1970s as a pivotal era. People were waking up to the collective costs of industrialization and pushing back against corporate power. Against this democratic wave, the writings of the Chicago School worked to separate one human person into her different roles in the economy—consumer, worker, shareholder. They used the law to solidify the divergent interests of these roles, even as they preached the gospel of shareholder democracy and personal choice. The law and economics movement helped to argue for limiting the choices and political power of shareholders over corporations, simultaneously as they insisted that profit maximizing was for the shareholders. This comment argues for the resurrection of pre-neoliberal legal conceptions of the corporation as a moral entity and a locus for political change in our fight against the climate crisis
Opening Brief for Plaintiff-Appellant, Roe v. Marshall University Board of Governors
Get PDFIssues Presented:
Title IX prohibits schools from responding with deliberate indifference to student-on-student sexual harassment that interferes with, or threatens to interfere with, a victim’s education. It also prohibits schools from retaliating against students who engage in Title IX protected activity, such as reporting an assault. Here, another Marshall student sexually assaulted Roe at an offcampus residence near Marshall’s campus. Roe reported the assault and other instances of student-on-student relationship abuse. In the assault’s aftermath, Roe missed classes and limited her time on campus because she was afraid of encountering her assailant. Her grades suffered. Marshall did not address the student-on-student harassment using its Title IX procedures, grant Roe appropriate supportive measures, or inform her that a no-contact order against her assailant remained in effect. Instead, it shunted her report to its student-conduct office, investigated her, and punished her purportedly for engaging in underage drinking on the day she was assaulted.
This appeal presents two issues: Whether a reasonable juror could conclude that Marshall violated Title IX by responding to student-on-student sexual harassment with deliberate indifference. Whether a reasonable juror could conclude that Marshall violated Title IX by retaliating against Roe for reporting student-on-student sexual harassment and aiding in the investigation of her assailant
Critical Race Theory as Legal Epistemic Justice
Get PDF“Critical Thinking: Not Critical Race Theory” and “Teach Truth: Not CRT,” proclaimed the front and back of a T-shirt on a fellow traveler passing in the airport. I was startled by the blatant misconceptions. The core pursuits of critical race theory (“CRT”) are to think critically, discover truth, and diversify knowledge about race and racism. Although I was aware of then-President Trump’s executive order barring federal diversity training and bills modeled after it, nothing had prepared me for the realization that my academic subfield had become so widely criticized that it was now the subject of T-shirt slogans. A few years earlier, very few individuals outside of law schools, and possibly education graduate schools, had heard the term “critical race theory.” Suddenly, there were people who had never even read a CRT article, or any legal scholarship, who thought that CRT was an imminent threat to education, society, and the nation. This fear and disdain for CRT are unwarranted and stem from a deliberate, unethical, and politically motivated effort to censor and undermine knowledge.
For the past few years, I have pondered: Why attack an academic subfield of law? Why attack CRT now? It cannot be a coincidence that curricular and book bans on CRT followed the 2020 Black Lives Matter uprising and national racial reckoning where CRT conceptualizations and vocabulary started being discussed in everyday life and chanted during protests. Anti-CRT efforts are crafted to resist antiracist social change. And the goals, strategies, and tactics of such efforts are highly epistemic in nature.1 Simply put: these attacks on CRT are attacks on knowledge. CRT is misrepresented and halted, often preemptively, in elementary, secondary, and higher education to prevent knowing, understanding, and dissemination of knowledge about race, racism, and other systems of subordination—knowledge that supports social movements and consequent antiracist legal reform. While scholarship has highlighted the epistemic injustice of these attacks,2 the epistemic justice of CRT, particularly its commitment and potential to advance legal epistemic justice, has not been examined.
This Essay explores CRT bans as instances of epistemic injustice and CRT as a powerful example of a legal epistemic justice endeavor. Part I provides an overview of CRT, outlines the various attacks against it, and examines some of the motivations behind these attacks. Part II explains how these attacks and efforts to silence CRT amount to epistemic injustice, homing in on a particularly pernicious form: “legal hermeneutical injustice.” Part III suggests a definition for “systemic hermeneutical justice” and examines how CRT constitutes a leading endeavor toward legal hermeneutical justice. This Essay seeks to prompt further scholarly inquiry into legal epistemic injustice and stimulate our collective imagination on how epistemic justice can be achieved in the law and beyond
The Economics of Labor Law
No full textIn terms familiar to economists, this book provides a positive theory of labor law and dissects the fundamental theoretical issues that shape labor law doctrine. It investigates the deep economic tensions influencing judicial opinions in labor law, and how these can predict the outcomes of relevant legal doctrine and determine whether it accomplishes its regulatory goals.Keith Hylton explores major philosophical approaches in the labor movement as well as the economic pressures that have impacted the growth of unions and the evolution of labor law. Hylton examines core issues including union organization, labor bargaining, labor law successorship, and the interaction between labor and antitrust laws. He questions whether the decline of unions will change employment and labor laws, and whether it is possible for the law to reverse or slow the decline in private sector union density. The central thesis of the book is that much of labor law doctrine is economically efficient, minimizing the costs of the bargaining relationship between the employer and the union.The Economics of Labor Law is an invaluable resource for students and scholars of labor and employment law, and law and economics. Practitioners will also benefit from its detailed account of how economics can provide a more solid foundation for labor law doctrines.https://scholarship.law.bu.edu/books/1374/thumbnail.jp
Reply Brief for Plaintiff-Appellant Brandon Velez
Get PDFDefendants don’t want to face the evidence, including video footage, that shows them escalating a traffic stop in front of Velez’s home to a forceful arrest because Velez exercised his First Amendment rights. So, instead of dealing with the record directly, Defendants rely entirely on the district court’s (improper) view of the record, which on appeal from that court’s grant of summary judgment is subject to this Court’s de novo review. Besides ignoring the evidence that favors Velez, Defendants leave unaddressed this Court’s key cases, citing only precedent in which officers confronted wildly different circumstances from those presented here.
When genuine disputes of material fact are resolved in Velez’s favor, the facts left are these: Defendants followed Velez home and then arrested him by grabbing, punching, and tasing him after he criticized them for opening his car door without warning and tried to record the traffic stop. They then contrived various, implausible justifications for the arrest. And the record shows that they had received no training on managing individuals’ efforts to exercise First Amendment rights during traffic stops.
Applying binding precedent to those facts, Defendants violated Velez’s clearly established rights under the Fourth Amendment and state law. The Court should thus reverse the district court’s grant of summary judgment to Defendants and remand for tria
Health Law and Democracy
Get PDFCurrent political divisions are destabilizing existing laws affecting the health field. Major changes in the field of health law have one thing in common: changes in who holds political power ‒ Congress and state legislatures, governors, presidents, judges, and agency officials. The laws that structure financial, economic, educational, and health care systems, environmental conditions, and civil society are primarily the product of elections that populate our political institutions. These structural determinants of health in turn create laws that influence how ‒ and how well ‒ we live and whether our society functions fairly under the rule of law. Thus, who gets elected matters a great deal to the health and safety of Americans. At the same time, changes in health laws resulting from elections may reveal shifts in the structures underlying our legal and economic systems and whether those shifts support or weaken principles of justice and the rule of law
The Thrusts and Parries of Policy Arguments
Get PDFAnyone who has ever put forward a policy proposal has heard the response, “if it ain’t broke, don’t fix it.” But despite the ubiquity of this attack on policy proposals, there has been little sustained inquiry into how the attack works and how it can be defended. The goal of this Article is to identify policy attacks like this, and to show their underlying logical structure, and how they function to attack policy proposals. The Article demonstrates this approach by considering three generic attacks on policy proposals, which I refer to as ain’t broke attacks, partial framing attacks, and dollar in the street attacks. But these are just three particular ways that policy proposals can be attacked. To capture a broader set of policy attacks, the Article puts forward a general model of policy proposals, and the premises that they rely on. Since all policy proposals rely on these premises, all policy proposals can be undermined by rebutting these premises. The Article demonstrates the application of these attacks on three particular kinds of policy proposals: cost-benefit policy proposals, proposals for mandatory arrangements, and, what I refer to as Goldilocks proposals.
By showing the thrusts and parries by which policy arguments can be attacked and defended, the Article aims to improve policy arguments. Modeling the structure of policy arguments abstracted from their particular contexts allows us to analyze them more deeply, and to amplify the benefits of that analysis for a broader set of applications. Identifying and labeling potential attacks on policy proposals facilitates responses to those proposals by others, and also allows authors to better defend against such attacks. Better policy arguments, both for and against, mean better policy debates, and therefore, better policy