Category Archives: Readings

Two Great Essays at Jotwell

I try not to use this blog to promote my other projects too often for fear of becoming a broken record.  But sometimes I cannot resist.

Over at Jotwell we’ve been publishing a whole lot of interesting reviews of recent scholarship relevant to the law, and I could be bragging about it every week.  But the two most recent essays have been particularly extraordinary, and I recommend them to everyone.

Sex/Power/Law is Robin West‘s review, for our Jurisprudence section, of Marc Spindelman, Essay, Sexuality’s Law,  20 Colum. J. Gender & L. (forthcoming 2011). It begins like this:

Marc Spindelman’s essay Sexuality’s Law, forthcoming in the Columbia Journal of Gender and Law, is one of the most extraordinary pieces of legal writing on the interrelations of law, culture and sexuality to appear in a law journal in well over a decade, perhaps much longer.

It ends with:

This is writing that matters, that serves truth, that responds to injury, and that restores one’s faith in the legal academy; this is what legal scholarship can be.

And the stuff in between is well worth your time.

Banana Republic.Com is Frank Pasquale‘s review, for our Cyberlaw section, of Jonathan Zittrain, Ubiquitous Human Computing, Phil. Trans. R. Soc. A, vol. 366 no. 1881 3813-3821 (28 October 2008):

Wasn’t the internet supposed to solve these problems? Wouldn’t a “wealth of networks” guarantee opportunity for all, as prediction markets unearthed the “wisdom of crowds?”  It turns out that the net, while mitigating some forms of inequality in the US, is accelerating others.  Jonathan Zittrain’s essay “Ubiquitous Human Computing” examines a future of “minds for sale,” where an atomized mass of knowledge workers bid for bite-sized “human intelligence tasks.”  Zittrain explores some positive aspects of the new digital dispensation, but the larger lesson is clear: without serious legal interventions, an expansive global workforce will be scrambling for these jobs by “racing to the bottom” of privacy and wage standards.  This review explains Zittrain’s perspective, applauds his effort to shift the agenda of internet law, and argues that trends untouched on in Zittrain’s essay make his argument all the more urgent.

This review is a little longer than our usual fare, but it’s a rollicking read about a very important subject.

Posted in Law: Internet Law, Legal Philosophy, Readings | Leave a comment

I So Don’t Do This Networking Stuff

How to Save the World, a blog I generally like, has a repulsive essay, The Ten Keys To Effective Networking.

The item is repulsive in part because it credibly argues that careers are furthered by treating people as means rather then ends, by selling yourself in a soundbite, and the display and exchange of favors. I’m fine with the exchange of favors stuff — I’m not that much of an ivory tower guy — and I understand that there are times in life when you have to sell. But the idea that you “prune your networks” (abandon people who are not useful), and “understand that every conversation is an implicit contract” (nothing can be abstractly interesting?) is just too much like what I least liked about living in Washington D.C.

And yes, there are a bunch of neat people I’ve met over the years that I wish I kept up with. Life just gets in the way.

[Original draft 3/21/2004. As part of my blog redesign, I’ve been going through draft blog posts that somehow never made it to publication. This is one of them.]

2010: I was reminded of this last night: we went to a very swanky law school event at an large and quite elegant home some small ways south of here. The guest list was studded with important people and large donors.   I didn’t recognize many of them, and ran away from one of the few I did — a right-wing local congressperson — since it seemed like an occasion where I should be polite.   We spoke to a few people we knew.  We went home.

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Elves are from Europe, Mortals from Cleveland

ElfpunkEurope and Faerie [Update: link fixed] suggests that “the entire genre of elfpunk is really about the way intelligent and sympathetic Europeans and Americans view each other today.”

There’s at least enough truth in this proposed metaphor about modern fantasy with elves and cities to make a very entertaining blog entry, even if I’m not 100% certain — well, not even 50% certain — as to which of the elves-at-the-gates books I’ve read for which this sort of works qualify as elfpunk.

(spotted via 0xDECAFBAD).

[Original draft 3/29/2004. As part of my blog redesign, I’ve been going through draft blog posts that somehow never made it to publication. This is one of them.]

2010: I should have deleted this one, but I love the title.

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Well, He Should Have Said It

Edmund BurkeThere is a web page devoted to tracking down the source of the quote “All that is necessary for the triumph of evil is that good men do nothing” (or words to that effect). It is pretty amazing.

[Original draft 10/30/2009.  In preparation for my blog redesign, I found draft blog posts that somehow never made it to publication. This is one of them.]

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Delusion Points

Worth Reading: Stephen M. Walt, Delusion Points in Foreign Policy.

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A Good Source of Bad Advice

Michael Swanwick (the imaginative writer) used to have a website on which he offered Bad Advice:

Most writing columns offer sound and useful advice to new writers, so they can accelerate the process by which they become successful, well-paid professionals. Unca Mike don't play that. My advice is designed to cut new talent off at the knees and thus keep down the number of writers I have to compete against. Multiply your adjectives! Insult the editor! Submit your writing questions here, and I'll provide you with the answers that other writers won't.

And he delivers! Or rather, he seems to have delivered up until about 2007, when he downgraded to blogging and started giving good advice. (There was a little blip in 2009, but just the one.) At least he gives awards.

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SSRN: Legal Studies Research Paper Series University Of Miami School Of Law Vol. 3, No. 7

I’m the ‘editor’ of this august working paper series, so I think I’ll reprint issues here. Some good reading if you are so inclined.

SSRN: Legal Studies Research Paper Series
University Of Miami School Of Law
Vol. 3, No. 7

Table of Contents

Irreconcilable Differences? The Troubled Marriage of Science and Law

Susan Haack, University of Miami – School of Law, University of Miami – Department of Philosophy

A ‘Pay or Play’ Experiment to Improve Children’s Educational Television

Lili Levi, University of Miami – School of Law

Rhetoric and the Regulation of the Global Financial Markets in a Time of Crisis: The Regulation of Credit Ratings

Caroline M. Bradley, University of Miami – School of Law

Toward a True Elements Test: Taylor and the Categorical Analysis of Crimes in Immigration Law

Rebecca A. Sharpless, University of Miami – School of Law

Discovering Identity in Civil Procedure

Anthony Victor Alfieri, University of Miami – School of Law


“Irreconcilable Differences? The Troubled Marriage of Science and Law” Free Download

Law and Contemporary Problems, Vol. 72, No. 1, 2009
University of Miami Legal Studies Research Paper No. 2009-22

SUSAN HAACK, University of Miami – School of Law, University of Miami – Department of Philosophy

Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes virtually the entire market for certain fields of forensic science and for certain psychiatric specialties. Because of its adversarial character, the law tends to draw in scientists who are more willing than most to give an opinion on less-than-overwhelming evidence; and the more often such a witness testifies, the more unbudgeably confident he may become in his opinion. Legal rules can make it impossible to bring potentially useful scientific information to light, and the legal penchant for “indicia” and the like can transform scientific subtleties into legal shibboleths. And because of its concern for precedent, and the desideratum of finality, the law sometimes lags behind scientific advances.

“A ‘Pay or Play’ Experiment to Improve Children’s Educational Television” Free Download

University of Miami Legal Studies Research Paper No. 2009-23

LILI LEVI, University of Miami – School of Law

This Article addresses both the constitutionality and the efficacy of the FCC’s current rules that require broadcasters to air children’s educational programming. It argues that, even though the rules would probably pass muster under the First Amendment, they should nevertheless be substantially revised. Empirical studies show mixed results, with substantial amounts of educationally insufficient programming. This is predictable – attributable to broadcaster incentives, limits on the FCC’s enforcement capacities, and audience factors. Instead, the Article advises a turn away from programming mandates. It proposes a ‘pay or play’ approach that allows broadcasters to pay a fee to a fund for high-quality public television children’s programming, or to air such programming themselves, or to choose a combination of the two. The Article details some specific suggestions designed to limit both broadcaster game-playing and FCC content-intrusiveness under such a scheme. Ultimately, however, it calls for a ventilation of ‘pay or play’ models in a public rulemaking proceeding. Such an inquiry might well result in a negotiated compromise. In time, its efficacy could be assessed by comparing the resulting programming to what was aired under the more traditional regulatory approach of the past decade.

“Rhetoric and the Regulation of the Global Financial Markets in a Time of Crisis: The Regulation of Credit Ratings” Free Download

Transnational Law & Contemporary Problems, Forthcoming
University of Miami Legal Studies Research Paper No. 2009-24

CAROLINE M. BRADLEY, University of Miami – School of Law

The market for credit ratings is a transnational market dominated by a small number of credit rating agencies (CRAs). The article examines how CRAs have used market protection rhetoric and harmonization rhetoric during the crisis in the financial markets. As criticisms of pre-crisis financial regulation proliferated one might have expected CRAs to be less forceful in their resort to market protection rhetoric. CRAs’ lobbying strategies have evolved as discussions about the broader future of financial regulation have evolved, and they have conceded a greater role for regulation in 2009 than they had before the crisis, but they continue to emphasize, with some success, that as a global business they should not be subjected to different rules in different jurisdictions, and to insist that the core of their methodological approaches to rating should be unregulated.

“Toward a True Elements Test: Taylor and the Categorical Analysis of Crimes in Immigration Law” Free Download

University of Miami Law Review, Vol. 62, No. 4, 2008
University of Miami Legal Studies Research Paper No. 2009-25

REBECCA A. SHARPLESS, University of Miami – School of Law

When determining the legal effect of a conviction under immigration law, adjudicators claim to apply a uniform, federal standard that prohibits fact finding regarding the underlying circumstances that gave rise to the conviction. This categorical analysis of crimes is firmly rooted in all levels of administrative and federal court case law. Yet fundamental confusion exists concerning what it means to apply a categorical approach to evaluating when a criminal conviction is of a type that triggers deportation. This article demonstrates that a source of this confusion is a misunderstanding of the nature of a conviction and the difference between a fact necessarily decided to establish an element of the crime and an extraneous fact that appears in the record of conviction. This confusion has undermined the well-settled principle that immigration adjudicators lack the authority to determine the facts underlying a conviction when deportation depends on a conviction rather than conduct.

This article argues that that only defensible rule for analyzing whether a conviction falls within a ground of deportation is a true elements test – a test that characterizes a conviction based solely on facts decided in the prior criminal proceeding to establish guilt. Any deviation from this rule incorrectly permits immigration judges to make independent findings of fact regarding the manner in which a crime was committed.

This article analyzes immigration agency decisions as well as federal court decisions, focusing on the immigration and criminal sentencing jurisprudence of the U.S. Supreme Court and Eleventh Circuit Court of Appeals.

“Discovering Identity in Civil Procedure” Free Download

Southern California Law Review, Vol. 83, 2010
University of Miami Legal Studies Research Paper No. 2009-26

ANTHONY VICTOR ALFIERI, University of Miami – School of Law

This essay explores the story of Floride Norelus, an undocumented Haitian immigrant, her civil rights lawyers, and the judges who didn’t believe them. The backdrop for Norelus’s story comes out of Ariela J. Gross’s new book What Blood Won’t Tell: A History of Race on Trial in America. In What Blood Won’t Tell, Gross, an elegant historian and eloquent storyteller, enlarges an already distinguished body of work on slavery, race, and antebellum trials to investigate the changing meaning of identity in law and litigation. Bridging the study of law and culture, she constructs or rather reconstructs identity – both race and gender – from the artifacts of local knowledge expressed in social performance and scientific expertise. Gross points to two “key moments” in the twentieth century American history of racial and gender identity occurring initially when “racial identity trials shifted from more routine adjudications of ancestry to intense contests about science and performance,” and subsequently when jingoist and nativist movements ignited “efforts to define the boundaries of citizenship racially.”

During these moments, she notes, the forum for the “determination” of racial identity moved to the local courthouse, “a key arena through-out the nineteenth century for struggles over identity.” At local courthouses, Gross explains, trials of racial and gender identity “reverberated through American culture.” Indeed, for Gross and others, the “cultural arena” of a courthouse and the “legal case” at stake “could fix the identity of an individual or an entire national group with a conclusiveness that was hard to overturn.” Because of its cultural import, Gross argues, “law has been a crucial institution in the process of creating racial meaning at every level.” Both trials and trial transcripts, she observes, disclose “glimpses of ordinary people’s, as well as lower-level legal actors’ understandings of legal and racial categories and of their own places in the racial hierarchy.” Race trials, Gross emphasizes, “brought to the surface conflicting understandings of identity latent in culture, and brought into confrontation everyday ways of understanding race with definitions that fit into the official, well-articulated racial ideology that supported the maintenance of slavery and post war racial hierarchy.” Witnesses, lawyers, and litigants entangled in this cultural conflict “learned to tell stories that resonated with juries” and judges; in doing so, they actively participated in “the day-to-day creation of race.”

This Essay extends Gross’s historical scrutiny of identity trials to contemporary civil rights debates over the construction of race in law and litigation. The Essay is divided into three parts. Part II maps Gross’s analysis of racial identity trials, explicating her notions of racialized common sense and performance. Part III examines the trial and appellate litigation in Floride Norelus’s civil rights case. Part IV considers alternative approaches to civil rights litigation embodied in identity performance and empowerment strategies.

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