Showing papers by "Georgetown University Law Center published in 1996"

Shades of Freedom: Racial Politics and Presumptions of the American Legal Process

Abstract: In Shades of Freedom, A. Leon Higginbotham provides a magisterial account of the interaction between the law and racial oppression in America from colonial times to the present. The issue of racial inferiority is central to this volume, as Higginbotham documents how early white perceptions of black inferiority slowly became codified into law. In Shades of Freedom, a noted scholar and a celebrated jurist offers a work of magnificent scope, insight, and passion. Ranging from the earliest colonial times to the present, it is a superb work of history and a mirror to the American soul.

Under Fire: The New Consensus on the Second Amendment

Abstract: This article first rebuts charges made in Gun Crazy, an article which asserts that the near-unanimous consensus supporting the individual rights view of the Second Amendment among historians and legal scholars is the result of a sinister concerted effort by pro-gun professors and fellow travelers. Compelling textual, structural, historical, and criminological evidence supports the new consensus. The article then examines the merits of the interpretation proffered by opponents of an individual right to keep and bear arms: the militia-centric conception of the Second Amendment. Textual, historical, and structural considerations all argue against such an interpretation. Finally, the issue that is really motivating those who reject an individual rights interpretation in favor of a militia-centric conception of the Second Amendment is identified: the allegedly adverse effect of gun ownership on public safety.

Can a 'Dumb Ass Woman' Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment Harassing Speech

Abstract: Sandra Bundy may have guessed that her new job with the District of Columbia Department of Corrections would be a challenge. What she may not have expected was that she would have to meet the challenge under very different conditions than those faced by her male coworkers. Ms. Bundy's work was continually interrupted by one of her supervisors, who kept calling her into his office and forcing her to listen to his theories about how women ride horses to obtain sexual gratification. He repeatedly asked Ms. Bundy to come home with him in order to view his collection of pictures and books on this topic. Another supervisor repeatedly propositioned her, asking her to come with him to a motel or on a trip to the Bahamas.None of Ms. Bundy's male counterparts, in contrast, had to listen to their boss's sexual fantasies and proposals. When Ms. Bundy tried to remove this gender-based obstacle to her job performance by reporting it to a third supervisor and pleading for help, he only exacerbated the problem, telling her that "any man in his right mind would want to rape you," and asking her to have sex with him.Ms. Bundy successfully sued the Department of Corrections for sexual harassment in violation of Title VII, the federal statute outlawing workplace discrimination.The implicit holding of the Bundy case ― that speech alone can create a discriminatory hostile work environment ― went unquestioned for many years. Recently, however, defense attorneys have challenged the constitutionality of this principle, arguing that a prohibition on discriminatory workplace expression violates harassers' First Amendment rights.

Toward A "Due Foundation" for the Separation of Powers: The Federalist Papers as Political Narrative

Abstract: During the past quarter century, lawyers have become strangely comfortable with descriptions of our government's structure that would, to an untutored ear, speak contradiction. We are quite satisfied to say that governmental powers are separate and shared, departments distinct and overlapping, functions autonomous and interdependent. We have settled into these contradictions as we would a roomy chair: talking this way is no longer controversial but taken for granted, uttered with a knowing wink, perceived as the starting point of sophisticated analysis. A not "entirely separate," but "entirely free," set of departments is the only way we can think about the separation of powers anymore. Indeed, the Supreme Court has even managed to convince itself that these "cancelling quotations" best describe historical understandings.Exhausted by this discourse of cancellation, we cling to reminders of the importance of the separation of power. On a regular basis, we invoke Madison's words from The Federalist that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many,...may justly be pronounced the very definition of tyranny." Repeated so often, however, the words have almost lost their meaning. If we step back and repeat them, we find Madison's statement oddly exaggerated. We live in a world in which the very "tyranny" Madison decries has become banal: daily, the departments each perform legislative, executive, and judicial functions without inspiring the slightest public outcry against "tyranny."This article argues that these fragmentary and contradictory understandings depend upon a partial, but serious, misunderstanding of the very idea of separated powers. Every time we use the term "separation of powers," we invoke a common, yet tacit, narrative of power--a narrative constructed upon the idea of legal authority: we imagine the executive, judicial, and legislative powers divided and neatly arranged among the departments. In this article, the author explores the implications of a different narrative of power, one based on the idea that power is as much constituted by the political relationships the Constitution creates as by the legal authority it bestows. She argues that the separation of political power is as, if not more, vital to the continued separation of our governmental institutions as the separation of any particular function or the allocation of any particular legal authority.

Constitutional Fictions and Meritocratic Success Stories

Abstract: L.H. LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even when they are riddled with inaccuracies, may state deep truths about our world, and accurate recitations of historical events may be either intentionally or unintentionally misleading in the extreme. According to LaRue, the Supreme Court engages in a form of storytelling or myth-making that goes beyond the inevitably partial narratives of fact and precedent. The Supreme Court also tells stories about our collective past - our political and social history - to support the results for which it argues. Nevertheless, LaRue makes clear that criticism of this sort is not his mission. He believes that the Court's misreadings and mistellings of the historical record, like courts' misreadings of fact and precedent, are inevitable and not altogether undesirable. In his book, LaRue shows that the Court uses these stories, which are most assuredly about our past, not so much to tell us the truth about that past, but to establish what might be thought of as foundational myths which then render our constitutional law persuasive. It is therefore a mistake to criticize or even praise these judicially created stories solely by reference to their historical accuracy. Rather - and precisely because they are fiction (or myth), and in some sense are written and intended to be taken as such - they should be evaluated as fiction (or myth). We need ask of these stories not whether they are historically accurate but whether they are true or false as stories, whether they illuminate something important about our lives that the complexities, ambiguities, and uncertainties of historical truth would obscure. This Essay has three parts. In the first part, I will provide a somewhat different account to the question at the heart of LaRue's book: the nature of the "truth" about our society that a judicially authored "story" might possess when that story purports to be about our past, but actually departs in significant particulars from historical fact. In the second part of this Essay, I examine some of the costs attached to this general practice both on and off the Court." In the third and final part of this Essay, I will explore one sort of more or less true story used by the Supreme Court to buttress its affirmative action jurisprudence.

Substantive Tax Equity and Adjusting the Income Tax for Regional Cost of Living Differences

Abstract: Substantial variations in the cost of living among regions in the United States are a major impediment to achieving a fair and equitable income tax system. Geographic cost of living differences arise because of disparities in the consumption power of income in different regions. Although the current Federal income tax system sometimes reflects and adjusts for changes in the cost of living over time (by indexing for inflation), it does not account for geographic cost of living variations - the Internal Revenue Code treats each dollar of income the same no matter where it is earned. The underlying premise of this paper is that fairness is a goal of an income tax system. A system of taxation based upon fairness - i.e., ability to pay - must be apportioned based upon a taxpayer's power to consume. The presence of liquidity and ease of transferability does not mean that money a uniform value. It is inequitable to apply a uniform system of taxation in different regions across the United States when money does not have uniform consumption power. Taxpayers whose consumption power differs have different abilities to pay (regardless of whether these taxpayers have the same nominal dollars of income). Money income, therefore, must be adjusted for regional cost of living differences to ensure that it represents the taxpayer's power to consume. Therefore, in order to achieve horizontal equity, taxpayers with similar power to consume should be taxed the same, regardless of where they live.

The 'Midnight Assassination Law' and Minnesota's Anti-Death Penalty Movement, 1849-1911

Abstract: This article traces the history of Minnesota's anti-death penalty movement and the 1889 Minnesota law - dubbed by contemporaries as the "midnight assassination law" - requiring private, nighttime executions. That law, authored by Minnesota legislator John Day Smith, restricted the number of execution spectators, prohibited newspapers from printing any execution details, and provided that only the fact of the execution could be lawfully printed. Also commonly referred to as the "John Day Smith law," this Minnesota statute was challenged as being unconstitutional by Minnesota newspapers after those newspapers printed details of a botched hanging and were charged with violating the law. The article discusses how Minnesota's "midnight assassination law" affected the state's abolitionist movement and influenced America's death penalty debate. In particular, the article recounts how two court decisions upholding the constitutionality of the law - one by the Minnesota Supreme Court and one by the United States Supreme Court - contributed to the rise of private, nighttime executions in America.

The Lost Law Professor

Abstract: Of all the groups of thinkers left homeless by the parcelling out of the boundless intellectual domain of the Victorian gentleman, few have felt their loss more keenly than full-time law professors in the United States. Of course, scholars in other fields have sometimes fretted over the costs of the professionalization of their discipline, and several have recently mourned the passing of the public intellectual. In law, however, such anxieties have been endemic. One source of these worries is the unusual, if not unique, dependence of the law schools, in comparison with other university departments, on a powerful and independent profession that never fully relinquished the production of expert knowledge in the field. Compared with the lay consumers of intellectual activity in other disciplines, judges and lawyers are remarkably confident in their assessments of the value of legal scholarship and the quality of legal education. Within the last decade their concerns have acquired a broad audience through widely noted articles and symposia and vigorously argued bar association reports. Such critiques from beyond the legal academy would not have acquired their present force were it not for divisions among the law professors themselves. Rare is the law faculty that agrees on the audience for legal scholarship or its place in the mission of their school, and even scholars who write for other scholars often find themselves on either side of an intellectual divide, separated by their growing sophistication in one or another of the social sciences or humanities, with no shared disciplinary competence to bridge the chasm. In many cases this extralegal expertise was self-acquired, but often the interdisciplinarians became what they are after extensive peri-

Issue Sequencing and Summary Disposition in an Efficient Legal Process

Abstract: This paper provides a conceptual framework for analyzing the impact of imperfect information on decision making. It goes without saying that rules that economize on information must not excessively sacrifice the accuracy of the outcome. On the other hand, gathering information is never costless. Accordingly, optimal rules will depend on the value of gathering additional information -- i.e. the social costs of reducing the incidence and magnitude of error. Statistical decision theory provides a formal methodology for developing optimal rules for gathering information. Building upon a well established economics literature, we treat the gathering of information as a stopping problem. The optimal stopping rule has the property that additional information is gathered only if the marginal value of the information exceeds the marginal cost of the information. In this paper, we formulate a multi-stage decision model of efficient procedure that incorporates these various elements. We determine for the optimal summary disposition standards that minimize the sum of information and error costs. We also determine the efficient sequence in which legal and factual issues are evaluated. We take into account the potential for replacing information gathering with presumption at an earlier stage. We also take into account the potential for grants of summary disposition for the plaintiff as well as for the defendant. Finally, we analyze the interaction between the full information standard and the use of summary disposition. We demonstrate five basic results. First, we derive optimal standards for summary disposition. We show how those standards depend on the cost of information, the weights of the issues in determining the overall merits of the case, and the initial degree of uncertainty regarding the issues, that is, the strength of the fact finder's initial presumptions. Second, we derive results on the optimal sequencing of issues. These results elucidate the type of issues that are most appropriate for summary disposition and what type more appropriately would be tried on the merits on the basis of a fuller record. Third, we establish that it generally is optimal for summary disposition to be two-sided. That is, plaintiffs as well as defendants should be able to be granted summary disposition on a particular issue. Fourth, we establish that there are two stages at which it is optimal to consider summary disposition. One stage occurs early in the process before detailed case specific facts on any issues are generated. The other stage occurs after facts have been gathered on some but not all of the relevant issues. Fifth, we establish that it generally is optimal for legal standards based on full information to be relative standards, in which issues are balanced, rather than separate absolute standards for each issue.

Invisible Victims: A Comparison of Melville's Bartleby the Scrivener and Glaspell's A Jury of Her Peers

Abstract: Somehow, by some process, some of the pains and suffering we sustain in life become cognizable legal injuries: if we are hurt through the defamatory utterances of others, we might seek compensation; if we suffer a whiplash in an automobile accident when we're rear-ended on the road, we might seek compensation for the pain we're put in; if we lose profits we might have made but for the interference of some third party with a contract we've entered, we might recover that loss. Other pains, although concededly injurious, and even concededly "caused" by some blameworthy individual or entity, are not cognizable. Still others are also concededly injurious, but nevertheless not cognizable because they were not in fact caused by a culpable individual.There is, however, another type of suffering – another "category" of harms – toward which the law stands in a quite different relationship. As a number of critical legal scholars have argued, some of the sufferings of daily life – some of the harms individually sustained – are not simply not compensated by our positive law, but their very existence is aggressively denied, trivialized, disguised or legitimated by our legal rhetoric. These harms tend, not coincidentally, to be the byproduct of institutions, social systems, and structures of belief which overwhelming serve the interests of powerful individuals, groups or subcommunities.Although law does not cause these harms it is complicit in the process by which they become "legitimate" – an accepted part of the terrain of daily living – and hence become invisible, often even to the individuals who sustain them. Particularly from a perspective internal to the legal system, such harms can be extremely hard to discern.In this article, I hope to take this Thomasian claim one step further. I will argue that two short novellas, Herman Melville's "Bardeby the Scrivener" – which Thomas does discuss and Susan Glaspell's "A Jury of Her Peers" – which he does not – not only seek to articulate and give voice to the victims of such legitimated harms in the way Thomas suggests, but that they also quite directly concern the process of legitimation itself. Thus, legitimation, as well as the invisible pains that are legitimated, is the subject matter of both stories. Both stories do indeed aim to make more visible the suffering of two groups of people in classically liberal societies: in "Bartleby," employees in certain kinds of labor markets, who bear the brunt of the pain of alienating and commodifying the products of labor, and in "Jury of Her Peers," wives in traditional, patriarchal marriages, who bear the weight of the institutionalized loneliness, abuse and injustice that such marriages often entail. What both novellas, each written by astute and critical professional legal observers, aim to show is the way in which law masks or obfuscates this suffering. Both novellas, in short, aim to depict the "process of legitimation."