Law Commons^™

"Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality", Kate Andrias, Benjamin I. Sachs

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This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …

Second Redemption, Third Reconstruction, Richard A. Primus

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In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …

Further Reflections On Antitrust And Wealth Inequality, Daniel A. Crane

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Since I have already published a lengthy academic article on antitrust and wealth inequality, I have the freedom of using this piece to present the key arguments unvarnished by dense citations or technical details (readers interested in those things should consult my earlier article) and to respond to some of the criticisms of my article that have since been levied. My thesis, before and now, is this: claims that antitrust enforcement advances income or wealth progressivity are overstated and rest on simplistic and unrealistic understandings of how antitrust actually operates. While some enforcement actions may generate progressive results, others will …

Equality Adds Quality: On Upgrading Higher Education And Research In The Field Of Law, Susanne Baer

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Much has been attempted, and many pro1ects are still underway aimed at achieving equality in higher education and research. Today, the key argument to demand and support the integration of gender in academia is that equality is indeed about the quality on which academic work is supposed to be based. Although more or less national political, social and cultural contexts matter as much as academic environments, regarding higher education and research, the integration of gender into the field of law seems particularly interesting. Faculties of law enjoy a certain standing and status, are closely connected to power and politics, and …

The New Labor Law, Kate Andrias

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Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …

Antitrust And Wealth Inequality, Daniel Crane

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In recent years, progressive public intellectuals and prominent scholars have asserted that monopoly power lies at the root of wealth inequality and that increases in antitrust enforcement are necessary to stem its rising tide. This claim is misguided. Exercises of market power have complex, crosscutting effects that undermine the generality of the monopoly regressivity claim. Contrary to what the regressivity critics assume, wealthy shareholders and senior corporate executives do not capture the preponderance of monopoly rents. Such profits are broadly shared within and dissipated outside the firm. Further, many of the subjects of antitrust law are middle-class professionals, sole proprietors, …

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

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After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

The Difference A Justice May Make: Remarks At The Symposium For Justice Ruth Bader Ginsburg, Suzanne Baer

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First, I will briefly summarize the state of the art of equality law in Germany today. A distinct dimension of this story from a European Union member state is that we are not just theorizing postnational constitutionalism these days, but that we live it already, since law is not anymore isolated as national but needs to be seen in the context of transnational migration and multinational regimes. Second, I turn to a key feature and key challenge in and to equality law today. It is what I have called the triangle of fundamental rights, referring to the three most prominent …

Traveling Concepts: Substantive Equality On The Road, Susanne Baer

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Ideas travel. Even legal concepts migrate on the globe. However, it is a contested issue whether migration is a good idea. We may enjoy traveling ourselves, but many people in the world of law are somewhat worried if we take legal baggage along. Some claim that legal baggage never arrives at its destination and challenge the very possibility of what some call a legal transplant. Others claim that we already live in transnational legal contexts, while still others claim that migration occurs, and that modifies each legal concept on the road in rather significant ways, which may render the project …

The Basic Law At 60 - Equality And Difference: A Proposal For The Guest List To The Birthday Party, Susanne Baer

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The German constitution, named "Basic Law", has proven to work although many did not believe in it when it was framed. Others emphasize desiderata. Sabine Berghahn commented at the 50th birthday that it has developed "far too slowly and [some] has even gone completely wrong." ' Jutta Limbach, former President of the Federal Constitutional Court, observed that constitutional history was "anything but regal, but very difficult and full of obstacles. '' 2 Former Chancellor Willy Brandt famously called the constitution "a snail on thin ice." So what is missing when we analyze the Basic Law, and what should be finally …

A Closer Look At Law: Human Rights As Multi-Level Sites Of Struggles Over Multi-Dimensional Equality, Susanne Baer

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In many societies, deep conflicts arise around religious matters, and around equality. Often, religious collectives demand the right to self-determination of issues considered - by them - to be their own, and these demands collide with individual rights to, again, religious freedom. These are thus conflicts of religion v. religion. Then, collective religious freedom tends to become an obligation for all those who are defined as belonging to the collective, which carries the problem that mostly elites define its meaning and they silence dissent. Usually, such obligations are also unequal relating to gender, with different regimes for women and for …

Constitutional Expectations, Richard A. Primus

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The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …

Servitude, Liberté Et Citoyenneté Dans Le Monde Atlantique Des Xviiie Et Xixe Siècles: Rosalie De Nation Poulard…, Rebecca J. Scott, Jean Hebrard

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On December 4, 1867, the ninth day of the convention to write a new post-Civil War constitution for the state of Louisiana, delegate Edouard Tinchant rose to propose that the convention should provide “for the legal protection in this State of all women” in their civil rights, “without distinction of race or color, or without reference to their previous condition.” Tinchant’s proposal plunged the convention into additional debates ranging from voting rights and equal protection to recognition of conjugal relationships not formalized by marriage.

This article explores the genesis of Tinchant’s conceptions of citizenship and women’s rights through three generations …

Public Rights, Social Equality, And The Conceptual Roots Of The Plessy Challenge, Rebecca J. Scott

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This Article argues that the test case that gave rise to the 1896 decision in Plessy v. Ferguson is best understood as part of a wellestablished, cosmopolitan tradition of anticaste activism in Louisiana rather than as a quixotic effort that contradicted nineteenth-century ideas of the boundaries of citizens' rights. By drawing a dividing line between civil and political rights, on the one hand, and social rights, on the other, the Supreme Court construed challenges to segregation as claims to a "social equality" that was beyond the scope of judicially cognizable rights. The Louisiana constitutional convention of 1867-68, however, had defined …

Les Papiers De La Liberté: Une Mère Africaine Et Ses Enfants À L'Époque De La Révolution Haïtienne, Rebecca Scott, Jean M. Hebrard

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During the Louisiana Constitutional Convention of 1867-1868, the young Edouard Tinchant proposed measures to protect the civil rights of women. He suggested that the State adopt legal measures to allow all women, regardless of race or color, to more easily bring complaints in the event of a breach of a marriage promise. He also proposed additional measures to prevent women from being forced into “concubinage” against their will. While that constitutional Convention was open to men of color and guaranteed a number of the rights for which Tinchant and his friends were fighting, the assembly did not adopt his propositions …

Another Tocqueville, Donald J. Herzog

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Time for a true confession: I'm skeptical of predictions in social and political life. Talk of causal generalizations and Hempel's covering laws strikes me as science fiction and fantasy in drag; talk of the unfolding of the immanent logic of modernity makes me dyspeptic. I usually think that structural considerations are context, not cause, and that weird combinations of stray contingencies explain what happens. Worse, now I'm called on to predict how political theorists will be discussing democracy ten years hence. Images of herding cats and Brownian motion come to mind. Nonetheless, duty calls. I dust off my crystal ball …

Se Battre Our Ses Droits Écritures, Litiges Et Discrimination Raciale En Louisiane (1888-1899), Rebecca J. Scott

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Title in English: Fighting for public rights: writing, lawsuits and racial segregation in Louisiana (1888-1889).

This article explores the links between the fight against compulsory racial segregation and the day–to–day operation of the law in nineteenth century Louisiana. Using the figure of Louis A. Martinet, one of the organizers of the test case that yielded the U.S. Supreme Court decision Plessy v. Ferguson, the essay argues that Martinet’s role as notary reflects the central importance to the community of color of questions of public standing and written records. The article also identifies the concepts of "public rights" and "public liberties" …

Civilizing The Natives: Marriage In Post-Apartheid South Africa, David L. Chambers

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South Africa is a land of many cultures. For several hundred years, British and Afrikaaner whites controlled the country, systematically manipulating black people to the whites' advantage. For the most part, however, whites tolerated the continuation within black communities of traditional marriage practices that white Christians considered uncivilized. In 1994, South Africa changed governments. A black majority Parliament came to power, adopting a consitution dedicated to equality and human dignity. Four years later, Parliament adopted a new marriage law that, though permitting some of the external trappings of the traditional marriage system to continue, eliminated by law much of the …

An Epilogue To The Age Of Pound, Thomas A. Green

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Doubts about the reality of criminal offenders' autonomy have sometimes played a role in the movement to abolish, or greatly reduce the reach of, the sanction of capital punishment.

Freedom And Criminal Responsibility In The Age Of Pound: An Essay On Criminal Justice, Thomas A. Green

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The concept of freedom has two main aspects: political liberty and freedom of the will. I am concerned here with the latter, although - as these two aspects of freedom are not entirely unrelated to each other - I shall touch also on the former. Enough has been written from a philosophical perspective on the relationship between free will and the law that it is not easy to justify yet another such undertaking. But there may still be room for some informal observations on the manner in which doubts about the concept of freedom of the will affected discussion of …

Art Of Judgement In Planned Parenthood V. Casey, James Boyd White

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This article was excerpted and abridged with permission from a chapter in Professor White's recent book Acts of Hope: Creating Authority in Literature, Law, and Politics. In the book, he explores the nature of authority in various cultural contexts. Here he examines the Joint Opinion in Planned Parenthood v. Casey, which has been attacked both from the right, on the grounds that it tried to keep Roe v. Wade alive, and from the left, on the grounds that it significantly weakens the force of that case. Professor White, by contrast, admires it greatly, and in this chapter explains …

Democratic Credentials, Donald J. Herzog

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We've made a mistake, urges Bruce Ackerman. We've failed to notice, or have forgotten, that ours is a dualist democracy: ordinary representatives passing their statutes are in fact the democratic inferiors of We the People, who at rare junctures appear on the scene and affirm new constitutional principles. (Actually, he claims in passing that we have a three-track democracy.)' Dwelling lovingly on dualism, Ackerman doesn't quite forget to discuss democracy, but he comes close. I want to raise some questions about the democratic credentials of Ackerman's view. Not, perhaps, the ones he anticipates. So I don't mean to argue that …

Authority And Value: Reflections On Raz's Morality Of Freedom, Donald H. Regan

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Joseph Raz's The Morality of Freedom1 is full of subtle, original, and thought provoking arguments. It also manifests abundantly Raz's philosophical good sense and sensitivity to the complexities of the moral life. These are reasons enough to class it with the handful of genuinely important books whose appearance in the last two decades has constituted a renaissance in political philosophy. But in my opinion, Raz has another, and even stronger claim on our attention: He comes closer to the truth about political morality than anyone has for nearly a century. (Possibly much longer, but we need not attempt to decide …

Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel

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I start in Section I of this Article with an examination of the first major theme of the criminal procedure decisions of the Warren Court, the selective incorporation of Bill of Rights' guarantees into the due process clause of the fourteenth amendment. My conclusion is that the selective incorporation principle, which provided the doctrinal basis for many of the "liberal" decisions of the Warren Court, remains firmly established today under the Burger Court. Section II of the Article then analyzes the theme of equality and the role it played in Warren Court decisions in the criminal procedure area. It is …

Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow

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Controversy continues unabated over the question left unresolved by DeFunis v. Odegaard: whether in its admissions process a state law school may accord preferential treatment to certain racial and ethnic minorities. In the pages of two journals published by the University of Chicago, Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government. Neither position, in my judgment, adequately confronts the …

Has The Court Left The Attorney General Behind? The Bazelon-Katzenbach Letters On Poverty, Equality, And The Administration Of Criminal Justice, Yale Kamisar

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Distribution of the first preliminary draft of the proposed American Law Institute Model Code of Pre-Arraignment Procedure last June touched off a brisk exchange of letters between Chief Judge David Bazelon of the United States Court of Appeals for the District of Columbia Circuit, who maintained that the proposed code left a good deal to be desired, and Attorney General Nicholas deB. Katzenbach, who, although he did not explicitly treat any provision of the preliminary draft, sharply challenged the conception of equality underlying Bazelon's criticism of it. By now, both the code, and the Bazelon-Katzenbach correspondence which it evoked, are …

Mutuality In Specific Performance, Edgar N. Durfee

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Prior to the present century, the subject of mutuality in specific performance was an unsolved puzzle. The decisions of the courts were in the main wise, but the attempts both of courts and text writers to formulate a statement of the principle governing these decisions were far from happy. After two centuries of litigation and discussion, the current formula was that the remedy must be mutual, must be equally available to both parties. The worst fault of this formula was its plausibility. Equality is equity, and perfect equality between the parties to a contract is not attained unless remedies are …