CRN 28- New Legal Realism
Schedule of Events
Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War, Mark Graber
Thu, 6/6: 10:00 AM – 11:45 AM
Author Meets Reader (AMR) Session
Hyatt Regency Denver at Colorado Convention Center , Room: Mineral G
In contemporary constitutional politics, Section 1 of the Fourteenth Amendment-which includes the citizenship, privileges and immunities, due process, and equal protection clauses-is the star of the show. But this was not the focus for the Republican members of the Thirty-Ninth Congress. Their interest was instead in Sections 2, 3, and 4. Today we tend to think the purpose of the Fourteenth Amendment was to protect persons of color. But the Republicans engaged in Reconstruction saw its purpose as preventing “rebel rule” by punishing treason and rewarding loyalty, particularly the loyalty of white men who remained faithful to the Union during the Civil War. In Punish Treason, Reward Loyalty, Graber breaks new ground researching Reconstruction, the Fourteenth Amendment, and constitutionalism.
Author: Mark Graber, University of Maryland
Chair: Rebecca Zietlow, University of Toledo
Reader(s):
Charlton Copeland, University of Miami
Malcolm Feeley, University of California, Berkeley
Doni Gewirtzman, New York Law School
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Access to Justice, Inequality, Class, and Difference
Thu, 6/6: 12:45 PM – 2:30 PM
Paper Session
Hyatt Regency Denver at Colorado Convention Center
Room: Mineral G
This session explores barriers to equal outcomes, access, and engagement in the development of law.
Chair/Discussant: Emily Taylor Poppe, University of California, Irvine School of Law
Presentations:
Administrative Law, Federal Agency Rulemaking, and Public Engagement: Conceptualizing Limits on “Democratizing” the Bureaucracy
Proposal: The Administrative Procedure Act (APA) established procedural standards for the vast majority of executive branch agencies. Among the APA’s formative purposes-and a recurring feature of the obligations it imposed-was promoting public engagement in federal regulatory processes. For both “formal” and “informal” rulemakings, the APA requires agencies to give notice whenever considering new or amended rules. For “informal” rulemakings, notice comes with a “comment” period during which the public is invited to weigh in on proposals while they are still under development. Thus, the APA not merely includes informational and transparency elements, but also provides everyday Americans with opportunities for direct participation.
Various social scientists and jurists have characterized the Act’s standardization of procedures as an effort to “democratize” opaque institutions. If making agencies more accessible and responsive to the public was a key motive, though, the first few decades of implementation produced rather mixed results. Since the 1980s, its initial aims have increasingly seemed unfulfilled, if not betrayed.
Today, critical scholarship often characterizes agencies as “technocratic,” with threadbare civil-service staffs besieged by external pressures and deteriorating outcomes, particularly for vulnerable groups. Even among critics, however, interventions from other actors-especially in the executive-remain under-theorized, largely ignoring part of the APA’s original mandate: participatory democracy. This paper begins to bridge these gaps, explaining how recent presidential intercessions have tried to maintain tight control over agencies, including circumscribing which substantive outcomes are even possible. This paper argues that such circumscription is in itself a “problem” for and of democracy, drawing on textual evidence from housing-related rulemaking records in the immediate aftermath of the 2008 financial crisis.
Presenter: Andy Carr, The New School for Social Research
Democratic Revolution in Contract Law: Questioning the Traditional Foundations From an Agonistic Perspective (for Philosophy and Legal Theory)
Proposal: Legal norms distribute rights and responsibilities between individuals according to their social roles in different factual scenarios. Through law, state power is used to enforce this coordination of social action. By burdening people in certain positions with responsibilities, while freeing others through rights, the law inevitably (dis)empowers social groups. In democratic states, this use of state power is legitimized through popular sovereignty. In structurally diverse and unequal societies, however, constructing a legitimate democratic consensus remains a fiction. While deliberative theories aim to overcome conflict by forging a common will, an agonistic theory of democracy acknowledges the undesirable character of such a homogenizing end game as it inevitably disempowers social groups with dissenting voices that develop over time. Instead, agonism advocates the legal maintenance of healthy conflict between social groups to provide the necessary input for the democratic machinery to maintain its legitimizing role.
Agonistic theory has made inroads in legal areas traditionally framed as ‘public’. ‘Private’ contract law, however, is largely uncharted terrain from an agonistic perspective. Just as other types of law, contract law coordinates a specific type of social interaction: a contractual one. While traditional or foundational theories of contract law ‘objectively’ naturalize or reify the meaning of contractual social roles, a democratic approach to contract law recognizes how contract law equally uses state power to enforce social action and (materially) (dis)empower social groups. In this paper, I use agonism to conceptualize and legitimize contract law. First, I will lay out the theoretical framework of agonism while grounding it in constitutional theory and practice. Next, I will use this lens to deconstruct the traditional normative frameworks of contract law before providing a normative reconstruction of a legitimate agonistic contract law.
Presenter: Camille Van Peteghem, KU Leuven
Everyone for Himself: The Preemptive Negotiation on Overtime Pay
Proposal: While it is intuitively understood that overtime pay can be difficult to receive due to the financial costs it incurs, this article argues that the challenge of obtaining mandatory overtime pay goes beyond financial considerations. It’s not about the difficulty of getting it; rather, it is more likely that workers does not want it anymore.
This situation arises from the complex interplay of autonomous restraints before requesting overtime, resulting from the shadow of employer powers and the preemptive negotiations among supervisors and staff. To be more specific, the widespread signaling effect of applying overtime pay shapes a workplace legal consciousness of non-overtime pay arrangements based on individual class interests.
This article strives to prove the theory above by initiating an online survey to detect the reality in the Taiwan workplace, and is able to support the theory with objective evidence.
Furthermore, this article intends to echo the legal consciousness scholarships and participate in the discussion of relational legal consciousness. Workplace overtime serves as a good example because the shaping of overtime avoidance and preemptive negotiation will only appear when all of the factors from the employer, the supervisor, and the staff are construed relationally.
Presenter: Bo-Shone Fu, National Taipei University Law School
Functional and Multi-Parenthood in Kinship Families: A Kentucky Case Study
Proposal: An increasing number of family law scholars and policymakers are reconsidering traditional parenthood laws, favoring a shift towards functional definitions of parenthood. This approach grants individuals who have nurtured a parent-child bond a legal parent status, irrespective of biological or marital ties. Such proposals also consider the possibility of a child having more than two parents. Although most literature on this topic is forward-looking and normative, celebrating functional and multi-parenthood for its inclusivity, this essay offers a differing perspective through a Kentucky case study.
Kentucky is notable because the proportion of children in kinship families there significantly exceeds the national average. Moreover, its robust statutory, administrative, and case law on nonparent custody employs a functional standard and allows multiple adults to share legal and physical custody of a child.
Drawing from court cases, administrative rules, and professional interviews, this essay sheds light on the functional and multi-parenthood law in action. Kentucky’s laws in this domain have, since the mid-1990s, evolved from a combination of the grandparents’ rights movement and the push to privatize child welfare. Contrary to the prevailing belief that functional and multi-parenthood laws simply “meet the families where they are,” this study underscores the role of the legal system in the very formation of kinship families. Often, these families arise after invasive interventions by child protective service agencies. Even in the absence of direct CPS involvement, functional and multi-parenthood laws rarely provide solutions to the challenges these families face, such as substance use, poverty, incarceration, or a mix of these issues. Worse still, these laws introduce additional problems for the families by complicating family dynamics, imposing unpaid care responsibilities on kinship caregivers, and undermining the custody rights of biological parents.
Presenter: Rama Kim, Harvard Law School
Legal Actuation
Proposal: Individuals routinely engage in instrumental transactional legal behavior, from generating tax returns to signing leases to negotiating employment terms. While some individuals undertake these activities equipped with the skills, knowledge, and capacity to behave strategically, others do not. In this article, we introduce the concept of legal actuation to describe this legal behavior and theorize its role as a source of inequality under the law. Using estate planning as an empirical example, we consider how variation in legal actuation may serve to reproduce economic inequalities and investigate the role of legal socialization, knowledge, and capability as mechanisms of advantage. In doing so, we draw attention to an understudied dimension of everyday legal behavior that has important implications for equal justice and the relationship between law and inequality.
Presenter: Emily Taylor Poppe, University of California, Irvine School of Law
Non-Presenting Co-Author: Megan Bea, University of Wisconsin-Madison
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Governance, Regulation, and the State
Fri, 6/7: 12:45 PM – 2:30 PM
Hyatt Regency Denver at Colorado Convention Center
Room: Mineral G
This session explores current and emerging challenges to the administration, study, and development of law resulting from rapid social and technological change.
Chair/Discussant: Riaz Tejani, University of Redlands
Presentations:
Cleaning Up Legal Authority
Proposal: Legal ambiguity has been a central concern for modes of legal interpretation and underlies much of sociolegal scholarship. Despite the centrality of legal ambiguity to the practice and study of the law, past attempts to conceptualize legal ambiguity have been incoherent. Today, there is an array of competing ontological beliefs about ambiguity’s role in the nature of the law and a dizzy portfolio of euphemisms and analogies for making sense of how legal ambiguity acts as a means for efficiency, sluggishness, overreach, incompetence, and ambivalence. Moreover, legal ambiguity has been a constant quality of the legal language, a dynamic variable reflecting social change (dichotomous or continuous), a setting or field for extrajudicial resolutions, a status of legal persons, and a mechanism for changing temporalities. Certainly, there have been profound insights. We argue, however, that legal ambiguity has remained underdetermined despite its central importance. This article is the first systematic attempt to make sense of legal ambiguity as a concept. We survey the rich insights into how legal ambiguity has been used and detail the antinomies within these competing conceptions. We then argue that the otherwise irresolvable features demonstrate the fundamental social quality of legal ambiguity, that instances of legal ambiguity reflect entropy arising when public understandings or expectations of the law and the law, with its associated institutions, become discordant. The systematic understanding of legal ambiguity as a dynamic, social epiphenomena provides exciting opportunities for synthesizing siloed research programs and opens new areas for future scholarship.
Presenter: Connor Strobel, University of Chicago
Political Disinformation in the Anthropocene
Proposal: The Anthropocene is the name scientists have given to our current epoch, which references the influence of human activity on earth. Adopted as a theoretical tool across disciples, social scientists employ the term to address political and socioeconomic problems and the symptoms of global inequalities. Meanwhile, legal scholars have employed the term to address the environmental harms of human agency and to examine how normative frameworks must fundamentally change in the times ahead. While often examined in the context of environmental concerns, recent scholarship also notes that democracies across the globe are experiencing rapid decay, as populist leaders are frequently climate change deniers. The Anthropocene has thus come to represent the convergence of our global environmental and political crises.
Within the Anthropocene, disinformation is a persistent cause of concern. The spread of misleading information about matters such as the COVID-19 pandemic and climate change pose threats to alleviating the harms of each. By creating collective uncertainty about the pandemic, climate change, and a host of other societal ills, disinformation undermines public trust in government institutions and adversely affects the frayed relationship these institutions have with vulnerable populations. Yet, attempting to curb the harms of disinformation implicates concerns over free speech, which in turn implicates broader concerns over the sustenance liberal democracies.
This Article examines disinformation and speech within the context of the Anthropocene. It asks, if democracies are going to survive political disinformation in the Anthropocene, how might they adapt? And what will they look like in the future? By drawing from the relevant Anthropocene theory across law and the social sciences and exploring how other countries cope with similar issues of disinformation and speech, it concludes by offering suggestions for mitigating political disinformation in the Anthropocene.
Presenter: Jeffrey Omari, Gonzaga University School of Law
Purdue Pharma and Moral Bankruptcy: Rethinking Responses to Corporate Malevolence
Proposal: Purdue Pharma, maker of OxyContin, is a prime example of a morally bankrupt corporation – its wrongdoing pervasive or central to the corporation’s operations, its actions causing grave harm, and yet the courts seem incapable of responding to its depravity. This article uses Purdue as a case study to develop the concept of moral bankruptcy and consider its implication. Purdue is responsible for a serious moral failing – the triggering of an epidemic – but it finds itself in a bankruptcy court, a system designed for financial bankruptcy. If it were not for its wrongful actions, it would have never incurred the massive tort liability that led it to chapter 11 bankruptcy, but the bankruptcy court is not empowered to find facts and make determinations of right or wrong in the way a criminal or civil court usually is.
The article describes Purdue’s path through bankruptcy, describing the process by reference to the documents filed on the bankruptcy court’s docket. In addition to pleadings and orders, it takes advantage of another set of data made public through the case, letters from victims and other stakeholders sent to the bankruptcy judge. It describes the recoveries that will be made and the changes to the company that will come into effect as a result of the bankruptcy case. Drawing on lessons from Purdue’s chapter 11 process, the sentiments expressed in the letters, and literature on chapter 11 in practice, the article then makes the case for a new system, one designed to address moral, rather than financial, bankruptcy. After imagining how a moral bankruptcy process might operate, the article provides theoretical grounding for the concept in responsive law and republican theory, and addresses concerns that a system of moral bankruptcy would constitute a corporate death penalty that needlessly punishes innocent shareholders.
Presenter: Meredith Edelman, Monash Business School
The Digital Turn in the Study of Law and Society
Proposal: The study of Law and Society has been a vital source for our contextual understanding of the law as applied to its subjects, and also in relation to other knowledge fields. In following the main currents of societal life, the study of Law and Society has considered a diverse range of social encounters with law, and most recently, has also gone digital. The digital turn in the study of Law and Society is exemplified by a growing body of literature on law in a digital society and can be observed at the societal level in the changing landscape of our social interactions, our changing perceptions of time, scale, and space, and our new-found sources of (digital) knowledge, power, and control. Society, it seems, has undergone a digital transformation and so too has our research methodologies. This digital turn in research methodologies is not only an inevitable consequence of the digital transformation of our subject matter – i.e. Society and Law – it is also the product of digital transformation itself. Based on a scoping review of Law and Society literature, the impact of this digital turn in the study of Law and Society is traced and theorised with reference to the essential categories of context and identity. These categories are not only central to most Law and Society scholarship, but are also increasingly and fundamentally being altered by the uptake and integration of advanced digital technologies in all aspects of our daily lives. While this digital turn is not susceptible to a simple, linear proclamation through which its arrival, development, and future course can be predicted and explained, this paper aims to provide, at the very least, a comprehensive source and critical reflection of the digital turn in the study of Law and Society and its methodologies. The potential impact of this digital turn for the future of Law and Society scholarship will also be considered.
Presenter: Andra le Roux-Kemp, Lincoln Law School, University of Lincoln
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Big Money Unleashed: The Campaign to Deregulate Election Spending
Fri, 6/7: 2:45 PM – 4:30 PM
Author Meets Reader (AMR) Session
Hyatt Regency Denver at Colorado Convention Center
Room: Mineral G
Americans across party lines believe that public policy is rigged in favor of those who wield big money in elections. Yet legislators are limited in addressing these concerns by Supreme Court decisions holding that campaign finance regulations violate the First Amendment. This book argues that our current impasse is the result of a long-term process involving many players. The justices played critical roles–but so did lawyers, advocacy groups, patrons, and the networks through which these actors coordinated strategy and held the Court accountable. Drawing from interviews, public records, and archival materials, the book chronicles how these actors borrowed a litigation strategy pioneered by the NAACP to dismantle racial segregation and used it to advance a very different type of cause. Panelists will comment and explore implications.
Author: Ann Southworth, University of California, Irvine
Chair: Scott Cummings, University of California, Los Angeles
Reader(s): Charles Epp, University of Kansas
Robin Stryker, Purdue University
Eli Wald, University of Denver