Friday, August 31, 2007

Leib on Democracy and Criminal Juries Worldwide

Ethan Leib has posted an article that surveys jury processes in the more populous democratic nations. The article is titled "A Comparison of Criminal Jury Decision Rules in Democratic Countries" and will appear in Volume 5 of the Ohio State Journal of Criminal Law (2008). Here is the abstract:

In this age of renewed interest in comparative constitutionalism and more focused attention on the legal regimes of foreign democracies, it is astonishingly difficult to learn about other countries' jury systems. There is no central, short, and easily-accessible English source to which scholars and policymakers interested in how the criminal jury functions worldwide can turn for basic facts about the jury systems in use in democratic countries. This paper hopes to fill that gap in part by furnishing jury system information about the twenty-eight democracies (excluding the United States) that have been consistently democratic since at least the early 1990s and have a population of five million or more (with allowance for Mexico and South Africa).

Here is the link:

Leib on Critiques of Deliberative Democracy

Ethan Leib has posted a review of Diana C. Mutz's Hearing the Other Side (Cambridge Univ. Press, 2006) and Andrew Perrin's Citizen Speak (University of Chicago Press, 2006), both of which critique the idea of deliberative democracy. Ethan's review appears in Volume 5 of Perspectives on Politics (2007).

Here's the link:

Monday, August 27, 2007

Lee on the Morality of Warrantless Wiretapping

Evan Lee has posted a paper tentatively titled, "Does Warrantless Wiretapping Violate Moral Rights?," to be published in the San Diego Law Review. An earlier version of the paper was delivered at a conference on "Informational Privacy and Moral Rights," sponsored by the Institute for Law and Philosophy at the University of San Diego. Here is the abstract:

The controversy over the Bush Administration's warrantless wiretapping program will not disappear any time soon. Legislators, policymakers, and academics should be thinking about whether and under what circumstances such surveillance should be illegal. A major factor in that decision is the moral status of such wiretapping. This essay, written for a symposium on moral rights to informational privacy, argues that two key determinants in the morality of warrantless wiretapping are (1) whether the subjects of the surveillance are known terrorists; and (2) whether the wiretapping is part of a pre-emptive surveillance program, or instead whether government operatives actually know of concrete facts indicating that warrantless wiretapping is necessary on the present occasion to save innocent lives. Although the secrecy of the Bush Administration program's precise application prevents definitive moral evaluation, it seems likely that significant aspects of the program have violated moral rights.

Here is the link:

Saturday, August 25, 2007

Current Colloquium and Workshop Schedule -- Fall 2007

Here is the current schedule for faculty colloquia and workshops, subject to revision:

Monday, Aug. 20, 12:40-1:30: Jules Lobel, Professor, University of Pittsburgh

Wednesday, Aug. 29, 12:40-1:30: David Faigman, Distinguished Professor

Wednesday, Sept. 5, 12:40-1:30: Beth Hillman, Visiting Professor (Rutgers, Camden)

Monday, Sept. 10, 3:40-4:30: Joel Paul, Professor of Law

Wednesday, Sept. 19, 12:40-1:30: William Dodge, Professor of Law

Monday, Sept. 24, 12:40-1:30: Scott Sundby, Sydney and Frances Lewis Professor of Law, Washington & Lee

Wednesday, Oct. 3, 12:40-1:30: Aaron Rappaport, Professor of Law

Tuesday, Oct. 9, 12:40-1:30: Paul Carrington, Professor and former Dean, Duke Law School

Wednesday, Oct. 17, 12:40-1:30: Chimene Keitner, Associate Professor

Monday, Nov. 26, 3:40-4:30: Adam Scales, Visiting Professor (Washington & Lee)

Friday, August 24, 2007

Massey on Prophylaxis in Fourteenth Amendment Enforcement

Calvin Massey has posted an article exploring the type and degree of prophylaxis that Congress should be allowed in enforcing the 14th Amendment. The article is called "Two Zones of Prophylaxis: The Scope of the Fourteenth Amendment Enforcement Power," and will be published in the George Washington Law Review. Here is the abstract:

The Supreme Court has limited congressional power to enforce the Fourteenth Amendment to remedial actions, but has acknowledged that prevention of constitutional injuries is remedial. To control the boundaries of this remedial power, the Court limits Congress to regulations that are congruent with the identified constitutional wrong it seeks to prevent and proportional to the extent of that injury. The meaning of congruence and proportionality has been fleshed out almost entirely in the context of congressional attempts to abrogate state sovereign immunity. In that context, those terms require evidence that states have been engaged in a pattern of unconstitutional behavior and that the prohibited state behavior is closely connected to the constitutional wrong. In practice, the Court requires less evidence and permits a looser fit between the remedy and the wrong when the prohibited state behavior is presumed to be unconstitutional. The Court has intimated that Congress may have even greater freedom to prevent constitutional injury when abrogation of state sovereign immunity is not at issue. If this is so, the meaning of congruence and proportionality must differ from the abrogation context. The central concern of abrogation of state sovereign immunity is protection of the sovereignty of the states and autonomous state governance by preservation of the public fisc. Those concerns become of lesser importance when abrogation is not at issue, and federalism issues become of much greater significance. The principal federalism issue is interpreting the enforcement power in such a way that Congress is unable to use it as a general police power. Courts should defer to congressional judgments about the scope of the enforcement power when, in a non-abrogation context, a significant portion of the state conduct it regulates materially interferes with an inchoate constitutional right. For this purpose, an inchoate constitutional right is either (1) a claimed right that has yet to be recognized by the Supreme Court as deserving of any form of heightened judicial scrutiny, but which has been widely and repeatedly treated as a plausible constitutional right by multiple sources within our constitutional culture, including decisions of state and lower federal courts, repeated dicta in opinions of the Supreme Court, legislative debate, learned commentary, and popular opinion, or (2) a legislative application of an existing judicially recognized right that has not yet been determined by the Court to be within or without the existing right, but which Congress has found, by adequate evidence, to be within the existing judicially recognized right. Such a standard, while inherently loose, would allow Congress wide latitude to prevent constitutional injuries, even when the conduct Congress regulates is presumptively in compliance with the Fourteenth Amendment, but would not permit Congress to assume a general police power. This standard is consistent with the underlying rationale of City of Boerne v. Flores, which recognized the prophylactic aspect of the enforcement power, even as it repudiated the extremely deferential McCulloch-derived test of Katzenbach v. Morgan, which permitted Congress independently to define the content of the constitutional rights it chooses to enforce. Congressional ability to identify and enforce constitutional rights before their recognition as such by the judiciary would be bounded by judicial, legislative, academic, and popular voices in the constitutional culture, and would be subject to judicial control to ensure that nascent constitutional rights recognized by Congress actually have a strong impetus for recognition within our constitutional culture.

Here is the link:

Massey on Governmental Purpose in Constitutional Analysis

Calvin Massey is about to publish an important article on what place government purpose ought to occupy in constitutional analysis. The article is called "The Role of Governmental Purpose in Constitutional Judicial Review," and it will appear in Vol. 59 of the South Carolina Law Review. Here is the abstract:

The purpose of governmental action is sometimes highly relevant to judicial determination of its constitutional validity, and sometimes completely irrelevant. Why? Even when purpose is relevant, the method of ascertaining purpose is highly variable. Why? When should governmental purpose be relevant to assessment of the constitutional validity of its action? What method should courts use to determine purpose? This article grapples with these questions by first distinguishing between purpose and motive, a distinction that the Supreme Court frequently elides, then examining what the Court has done, and proposing what the Court should do. The Court's consideration of purpose is unguided by any discernible principle, although the stringency of the applicable level of review has some influence upon the relevance of purpose. The Court's method of determining purpose is equally unguided. Purpose is sometimes derived from statutory text, sometimes from the effects of the action, sometimes from hypothesis, and sometimes from inferences of motive, and these varying methods are largely untethered from the applicable level of review. Although purpose inquiry is necessary to tiered scrutiny the Court should focus primarily on the effects of government action. When the chosen means are ineffective to accomplish a forbidden purpose, courts should ignore purpose, except in cases of intangible stigmatic injury or when courts are incapable of assessing effectiveness. When the effects of government action are constitutionally suspicious but no forbidden purpose is evident, courts should liberally permit challengers to offer proof of an illegitimate purpose or motive in order to sift effects that are unintended byproducts of lawful action from those that are produced by an occult bad purpose or motive. Facial challenges should always involve scrutiny of purpose, because the effects are generally speculative, either because such challenges are brought before implementation of the measure or it so squelches protected activity that as-applied challenges are unlikely to occur. Within minimal scrutiny, when the effect of governmental action is divorced from the government's stated or conceivable purposes, the action should be treated as irrational. Within heightened scrutiny courts should consider purpose with greater care, examining the face of the statute or its application for evidence of a forbidden purpose. Evidence of legislative motive should be used quite sparingly, if at all, due to the extreme difficulty of identifying a singular motive for the action of a deliberative body. This proposal implies that a number of areas of constitutional doctrine should be reconsidered or abandoned. Aspects of free expression, equal protection, substantive due process, and the religion clauses are called into question. The author hopes to spark debate on these matters, rather than offer the final word.

Here is the SSRN link:

Wednesday, August 22, 2007

Knapp on Strict Scrutiny of Individual Contracts

Chuck Knapp has just published an article entitled, "Opting Out or Copping Out? An Argument for Strict Scrutiny of Individual Contracts," which was part of a symposium called "Contracting Out of the Uniform Commercial Code." Chuck's article is concerned not so much with the specific topic of contracting out of the UCC, but with the more general issue of whether and to what extent stronger contracting parties should be free to impose on weaker ones contractual terms of various kinds, up to and including terms intended to deprive the weaker party of what would otherwise be its right of recourse to rules of law that would otherwise apply, to litigate in forums that would otherwise have jurisdiction and competence, and indeed to have legal recourse in any court of law at all. Building on many of the themes sounded in his earlier article on "mandatory arbitration" clauses ("Taking Contracts Private: The Quiet Revolution in Contract Law," 71 Fordham L. Rev. 761 (2002)), this article concentrates on the imbalance of bargaining power ordinarily existing between commercial entities (typically corporations) and flesh-and-blood individuals (either as consumers of goods and services or as sellers of their labor), and it argues for a kind of "strict scrutiny" of such contracts by the courts. The cite is 40 Loyola L. A. L. Rev. 95 (2006). (Trust me, it was just now published.)

Friday, August 17, 2007

Leib on Criminal Justice and Family Ties

Ethan Leib (and his co-authors, Dan Markel of Florida State and Jennifer Collins of Wake Forest) have just published an article in the University of Illinois Law Review critiquing the many benefits dispensed by the criminal justice system on the basis of family ties. Here is the abstract:

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome. When the presumption is overcome, we urge distributing the benefit on terms that are neutral to family status, if possible, with a focus instead on functions served by established relationships of care-giving responsibility.

Here's the link:
Or, if you prefer to see it in published format:

Scales on Assaultive Dentistry for Profit

Visiting Professor Adam Scales has posted this two-part FindLaw column on the bizarre case of a dentist who assaulted a patient and ended up recovering $1 million from his insurer:

Warning: Don't read this if you have a dental appointment any time soon!

Wang on Insider Trading

Bill Wang's paper on insider trading has just made SSRN's top ten list for downloads in the category of "Corporate Law: Securities Law." The paper consists of the introductory chapter to Bill's two-volume treatise, Insider Trading (PLI 2d ed., 2006) (co-authored with Marc Steinberg of SMU). Here's the link: Congratulations, Bill!

Bisharat on the Boycott of Israel

George Bisharat's op-ed in the S.F. Chronicle on why Israel should be boycotted is here:

Whether you agree or disagree, it's a conversation starter!

Thursday, August 16, 2007

Carrillo on Adjustable Rate Mortgages

Jo Carrillo has posted a working paper currently titled, "Dangerous Loans: Adjustable Rate Mortgages and Class Action Rescission Claims Under the Truth in Lending Act." The paper has already been picked up by CNN Money! Here is the abstract:

Housing prices do not always go up, interest rates do not always stay down, borrowers cannot always refinance, and physical shelter can be lost for not making mortgage payments. Were our cars as dangerous as the new mortgage products on the market, we might all be injured or dead. Still, lenders claim that innovative lending products enhance consumer access to credit. They believe increased access to credit democratizes the housing market. And they insist - against a growing body of evidence - that option adjustable rate mortgages, though untested, are safe financial products.

But reality is setting in. Option ARMs can be dangerous to consumers, if not ruinous, in the perfect financial storm. When an option ARM product adjusts upward, what was once affordable can become unmanageably expensive. Imagine charging $331,200 - the median mortgage owed by buyers in default in California in April of 2007 - on an adjustable rate credit card charging 11% APR and rising. Now add your current credit card debt to that amount, and the ordinary expenses of living. For many consumers, the result is bankruptcy or rescission. Indeed, lawsuits are in the works as thousands upon thousands of consumers realize that the loan that lured them with promises of low monthly payments has left them even more mired in mortgage debt than before.

This article analyzes and places into market context three recent consumer class action lawsuits that were brought under Section 1635 of the federal Truth in Lending Act (TILA). TILA allows for class action lawsuits for damages under Section 1640, but TILA is silent on whether classwide rescission claims are permissible under Section 1635. On the legal side, whether a class seeking rescission can be certified will depend on how courts interpret Section 1635. On the economic side, it will depend on how access to credit issues are framed.

Here's the link:

Hazard on Making Law in Mass Societies

Geoff Hazard isolates what he considers to be the most significant characteristics of mass justice: (1) political "distance" between legislative policymaking and adjudicative administration of justice; (2) dominance of "technicality" over "morality" in legal rules; (3) estrangement among professional participants in administration of justice; (4) impersonality of the adjudicative process itself, including a tendency to technicality; (5) the burden of quantity of caseload on quality of justice; and (6) statistical dimensions of "justice" in mass justice. The cite is 67 La. L. Rev. 1103 (2007).

Friday, August 10, 2007

The World According to Hastings

This is the blog of the Associate Dean for Research at the University of California, Hastings College of the Law. It will be used to introduce new scholarship by Hastings faculty.