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Conflict, Consistency and the Role of Conventional Morality in Judicial Decision-Making
No full textVol. 34-1Cardozo defends a pragmatic approach to judicial decision-making. Judges should apply and develop legal rules with an eye toward their social function. “Public policy” at this stage of decision-making theoretically could be rooted in a social scientific exercise or some other direct attempt to come up with the optimal rule.
Cardozo instead directs judges to conventional morality. Conventional morality is an unlikely solution given the specter of inconsistency that it raises. But in the disagreement and conflict about conventional morality that seem to render it unstable lie the resources for self-correction over time. Judicial decision-making is inevitably inconsistent to some degree, no matter how judges try to fill in gaps after traditional decision-making criteria run out. Alternatives like custom, culture and attempts to decipher the “best rule” directly, do not link law with public discourse. Looking to conventional morality allows that judicial decisions, if not aligned, form a progressive arc over time
Cardozo and the Nature of the Equitable Process
No full textVol. 34-1Benjamin Cardozo is associated with the common law, equity, judicial decision-making, and with a characteristic kind of proto-Realism. And in his day he was the most prominent expositor of the law of New York, a jurisdiction that had led the way in the merger of law and equity. So it is with equity. Equity pervades Cardozo’s work as a theme of the law and as a problem in judicial theory, in both his theoretical writings and in his decisions. In The Nature of the Judicial Process, Cardozo invokes equity when introducing the problem of reconciling the need for both certainty and flexibility in the law. And equity plays a large role in the modes of judicial decision-making he identifies—the philosophical, the historical, the customary, and the policy-oriented. This last, or sociological, method is the “arbiter” of the others in a way suggestive of equity’s role as meta-law. Because this approach to equity could only emerge from its application, it is not surprising that cases in the area of equity would receive his special attention as a judge. Most clearly in some headline equity cases but going far beyond them, Cardozo’s vision for the integration of equity and law was functional rather than primarily jurisdictional. Equity for Cardozo both kept the law to a high moral standard and supplemented and corrected the law in limited circumstances. Sometimes Cardozo’s reformulation of equity in this functional sense reformed the law so subtly as to be easy to miss. Seen in the light of later full-blown Legal Realism, Cardozo’s equity is easily mistaken for a version of Realism in its rhetoric but disappointingly cautious in its results. Cardozo’s equity was a genuine path not taken and one that perhaps still could bring equity into the modern age
Fairness and Contestability in the Digital Markets Act
No full textAccording to the managerial strategy literature, a, if not the, key to large profits is the creation of “moats” that protect firms from competition. Firms with market power create moats to maintain that power, and there exist strong incentives to develop new technologies that allow for broader and deeper moats. On the other hand, from a broader societal perspective, and particularly from the perspective of consumers, these moats often are harmful: they surround customers and deny them the opportunity to purchase from competitors. As a result, consumers suffer from the high prices and/or low quality imposed by the incumbent firm, whose incentives to provide the amount and type of innovation desired by consumers are decreased
The Market for Corporate Criminals
No full textVol. 40:520This Article identifies problems and opportunities at the intersection of mergers and acquisitions (M&A) and corporate crime and compliance. In M&A, criminal successor liability is of particular importance, because it is quantitatively less predictable and qualitatively more threatening to buyers than successor liability in tort or contract. Private successor liability requires a buyer to bear bounded economic costs, which can in turn be reallocated to sellers via the contracting process. Criminal successor liability, however, threatens a buyer with non-indemnifiable and potentially ruinous punishment for another firm’s wrongful acts.
This threat may inhibit the marketability of businesses that have criminal exposure, creating social cost in the form of inefficient allocations of corporate control. Such a result would be unfortunate because M&A could instead be a lever for promoting compliance. Yet criminal successor liability undermines this possibility and, in turn, the public’s interest in compliance. To countervail these problems, this Article proposes new prosecutorial policies that, through better-targeted sanctions and compliance-enhancing mergers, would promote M&A markets, deter corporate crime, and foster corporate reform
At the Crossroads of Theory and Practice
No full textVol. 34.2:98This special issue fittingly concludes with mediations from a diverse group of advocates and practitioners on what relationship exists—or should exist—between feminist legal theory, on the one hand, and the practice of legal advocacy, on the other. Focusing on how feminist prerogatives guide how movements make use of, or eschew, the law, the writers whose advocacy
is showcased in this section explore how and to what degree feminist legal theory has taken up the actual practice of law and advocacy as a site for intervention or the advancement of gender justice. Conversely, these four practitioners—two attorneys, one sex work policy advocate, one self-identified “non-attorney legal advocate,” and none of them law professors—
also reflect on their own experiences of feminist lawyering and advocacy, considering to what degree their own praxis reflects, engages, or refuses the myriad insights and political priorities emphasized in feminist legal theory, as a body of thought. Across the three pieces, there are multiple points of convergence and divergence, but where these writers and advocates agree is
around the fact that process, in movement lawyering work, is every bit as important as product. In other words, as authors BeKura Shabazz and Lisa Sangoi write, the question of “how social change is achieved is just as important as the social change that is achieved.
Cardozo’s Literary Precedents
No full textVol. 34-1Benjamin Cardozo penned his essay “Law and Literature” long before the field of law and literature took off in the 1970s.1 The piece, which furnishes a typology of judicial styles, has become a classic early example of engagement with the intersection of the two areas.2 “Law and Literature” fits squarely within what is now called the genre of “law as literature,” considering the literary attributes of legal writing.3 Reading it, one might never imagine that Cardozo had also considered works of fiction in depth. Indeed, few know of his early study of literature, including his heretofore unpublished undergraduate paper on novelist George Eliot.4 Although this earlier work does not touch on law explicitly, it demonstrates the emergence of Cardozo’s concerns with duty, causation, and responsibility even before he became a judge, presaging the account of morality furnished in The Nature of the Judicial Process. It also helps to flesh out the reasons why, as he claims in “Law and Literature,” style is so significant
The Second Amendment on Board: Public and Private Historical Traditions of Firearm Regulation
No full textJudge William E. Miller Prize
R. Siegel, J. Balkin, G. Torres
For the best paper concerning the Bill of RightsIn New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme
Court reaffirmed that laws prohibiting the carrying of firearms in sensitive
places were presumptively constitutional. Since Bruen, several states and the
District of Columbia have defended their sensitive-place laws by analogizing
to historical statutes regulating firearms in other places, like schools and
government buildings. Many judges, scholars, and litigants appear to have
assumed that only statutes can count as evidence of the nation’s historical
tradition of firearm regulation.
This Note is the first expansive account since Bruen to challenge this
assumption. It argues that courts should consider sources of analogical
precedent outside of formal lawmaking when applying the Court’s Second
Amendment jurisprudence. Taking public transportation as a case study, the
Note surveys rules and regulations promulgated by railroad corporations in
the nineteenth century and argues that these sources reveal an historical
tradition of regulating firearm carriage on public transportation.
Bruen expressly permits courts to engage in more nuanced analogical
reasoning when dealing with unprecedented concerns or dramatic changes.
One such change is the shift in state capacity that has placed sites that were
previously privately or quasi-publicly operated before the twentieth century
under public control in the twenty-first century. As in the case of schools,
which the Court has already deemed sensitive, a substantial portion of the
nation’s transportation infrastructure in the nineteenth century was not
entirely publicly owned and operated. This case study instructs that courts
and litigants can best honor Bruen’s history-based test by considering all of
the nation’s history of firearm regulation
Feminist Legal Theory and Praxis after Dobbs: Science, Politics, and Expertise
No full textVol. 34.2:48Fifty years ago, in Roe v. Wade, Justice Blackmun set into motion the idea that abortion should be a decision between a woman and her doctor. That idea traveled from the Supreme Court decision to popular discourse; with it, came the notion that when it comes to reproduction, medical experts are a key part of women’s liberation. In Dobbs v. Jackson Women’s Health Organization, the court ignored the role of experts and threw the question of who should decide when and how a person has an abortion to the people. In my essay for this symposium issue dedicated to feminist legal praxis, I will argue that contestation around medical and epidemiological evidence will continue to shape the abortion debates despite the Supreme Court’s recent
decision. Reproductive rights advocates need to continue to pay close attention to new battles occurring in the register of evidence, medicine, and expertise. Doing so will require reproductive rights advocates to examine purportedly neutral scientific and expert-based justifications in the legal regulation of the practice of medicine and medication more closely. This
will create new and necessary avenues for legal advocacy, including challenging when and where legal institutions legitimate misinformation about abortion or limit access to abortion based on science and evidence. In taking on questions of expertise and evidence, abortion rights advocates can learn from the overlapping movement to end racial bias in medicine and
medical technology
ZEROING IN ON NET-ZERO: FROM SOFT LAW TO HARD LAW IN CORPORATE CLIMATE CHANGE PLEDGES
No full textOne hundred and ninety-seven nations endorsed a target of net-zero greenhouse gas (GHG) emissions by midcentury in the 2021 Glasgow Climate Pact. As countries around the world haue begun to develop their plans for deep decarbonization, it has become euident that the private sector will need to deliver much of what is required for the transition to an environmentally sustainable economy. The commitment to net-zero emissions by the year 2050 has therefore cascaded to the corporate world, leading hundreds of major companies to make their own net-zero GHG pledges. What constitutes a meaningful net-zero corporate pledge, however, remains unclear-and what must be done to implement these commitments remains similarly opaque. In the absence of regulatory mandates, corporate pledges could become little more than empty optimism and may harm companies' reputations if perceived to be greenwashing. But while governments have long dithered, other stakeholders-notably investors, consumers, NGOs, and the media-are scrutinizing corporate net-zero commitments and pressing companies to explain their climate strategies, business transformation intentions, investment plans, and reporting schedules in search of credible metrics, methodologies, and interim targets. This Article explains why the scramble to make sense of corporate net-zero emissions targets matters-arguing that these pledges may emerge as a critical point of leverage in the effort to transition toward a sustainable economy, especially in the absence of comprehensive government climate change policies. It provides an analytical framework to highlight what net-zero pledges could-and should-mean. It identifies key considerations and challenges that must be addressed in corporate GHG reduction strategies. And it documents how stakeholder demands for more robust disclosure regarding corporate net-zero pledges, as part of a broader push for more rigorous Environmental, Social, and Governance performance reporting, might establish de facto global climate change rules for major companies-creating a self-regulatory soft law" structure of emissions reduction guidelines and incentives anticipating future regulation and government action
The Purloined Debtor: Edgar Allan Poe’s Bankruptcy in Law and Letters
No full textVol. 34:2This Article represents the first interdisciplinary case study of Edgar Allan Poe’s bankruptcy as an inflection point in the legal and cultural history of debt. Although Poe hardly leaps to mind for portrayals of legal procedure, much of his oeuvre reveals a terror of legal process as an interstitial principle. The anxiety around identity in Poe’s work reveals an ongoing struggle between an individual subject and two opposing yet equally degenerate legal statuses: possession and indebtedness. This opposition renders a distinct form of legal process legible in these texts: the then-emerging law of bankruptcy. Poe declared bankruptcy at a unique moment in American legal history, where for thirteen months in the early 1840s, America had a debtor-focused bankruptcy law under which a bankrupt could seek protection. Poe’s case, read alongside his literary output, reveals both legal and narrative contradictions at the heart of bankruptcy, which the 1841 Act did a poor job of resolving. On the one hand, bankruptcy reframes the identity of the debtor, who becomes the object of a quasi-inquisitorial process. On the other, bankruptcy restores some degree of material agency to the debtor as a subject, often at the expense of creditors