Social Justice

Written by Lisa R. Pruitt I've thought about vote buying a lot over the course of my life.   I'm not talking about how corporations and other affluent actors donate money to campaigns in hopes of swaying legislators' votes, or even lower-scale political patronage type activity.  I'm talking about the phenomenon at the individual level in what is arguably its most base and disturbing form:  The payment and acceptance of cold hard cash for one's vote in a particular political race or slate of races. I've been thinking about vote buying again lately because I discussed it a bit in this recent essay and because a friend from Kentucky mentioned that, in the wake of the state's May 18 primary, federal investigations into vote buying are underway in several counties in the Eastern part of the state.  (Read some  news coverage of those investigations here and here.  Also, here's another interesting Kentucky story from earlier this decade.) My interest in vote buying goes back to my childhood.  My father was involved in vote buying in the rural Arkansas county where I grew up, and he was quite open it.  I recall rather vividly one election night when he and other local men gathered at our kitchen table with the paper ballots cast that day.   If memory serves me well, they were checking to see if various people had, in fact, voted as they had been paid to do.   This was in the 1970s and 1980s in rural Arkansas, where people still cast paper ballots; in fact, I think they still do in Newton County.  My father was a life-long Democrat who bought votes on behalf of the party's local candidates, but the local Republicans engaged in the practice, too.  Indeed, the Newton County Judge (in Arkansas, the county judge is the chief elected administrative officer) was convicted of vote buying in the late 1980s and spent some time in federal prison.  U.S. v. Campbell, 845 F.2d 782 (8th Cir. 1988).

Written by Lisa R. Pruitt I started writing about rural people and places in relation to the law a few years ago, motivated in part by their near total absence from legal scholarship.  I grew up in a very rural corner of Arkansas, where most of my family of origin still lives, and it struck me that lives like theirs (and formerly mine) were largely unseen and unacknowledged by legal actors at scales other than the most local (and sometimes even by those, e.g, the Sheriff). Rural residents comprise nearly 20% of our nation's population,but they are a forgotten fifth whose lives are in many ways different to what has become a presumptive but rarely expressed urban norm in legal scholarship. (Fellow blogger Katie Porter's work on bankruptcy in rural contexts is an important exception). Parthenon General Store in Parthenon, Arkansas, which is not a census designated place; a town with a post office but with no wikipedia entry. I started studying the legal relevance of rurality about a decade ago, and I have found so much to say that I have published only within the sub-discipline I call "law and rural livelihoods" since 2006.   I expect to spend the rest of my career exploring rural people as legal subjects and rural places as context, even if it means writing my way into the very obscurity associated with rurality itself. It is not surprising, then, that as a consumer of legal scholarship I find myself looking for rural people, for acknowledgment of rural difference, rural context, rural society.  Of course, rural-urban difference is not relevant to every legal issue or every piece of legal scholarship, but from time to time I come across a law review article that seems to cry out for some acknowledgment of rurality.   That happened last week when I saw on ssrn.com an essay by Jonas Lerman titled "Food Fights and Food Rights:  Legislating the 'Delicious Revolution.'"  Lerman's abstract states in part:

Written by Lisa R. Pruitt Anyone who is following the debate about immigration and its reform in the United States is familiar with rhetoric disputing what America's core values are as a means of supporting the competing visions for who gets to be an American--or, at least, who gets to be in America legally.   Those opposing immigration talk about how the newcomers are changing America too much.  Those in favor of more lax immigration laws remind us that the United States has always been a nation of immigrants. Nowhere is this debate being waged more vigorously than in what might be thought of as America's heartland.  I was reminded of that fact this morning when I read that 57% of voters in Fremont, Nebraska, population 25,576, voted in favor of an ordinance that will "banish illegal immigrants from jobs and rental homes."  One of the things that makes the Fremont ordinance unusual among anti-immigrant activity by smallish local governments is that residents demanded this referendum--taking the matter all the way to the Nebraska Supreme Court--after city officials voted against such an ordinance.  Interestingly, the primary reason that the city's political leaders opposed the ordinance appears to be the litigation it is likely to prompt--litigation the municipality can hardly afford.  Read more here and here.

Written by Lisa R. Pruitt In addition to being acronyms most of us had never heard before two different disasters brought them to our attention in April, the Minerals Management Service (MMS) and the Mine Safety and Health Administration (MSHA) are both examples of apparent regulatory failure. The MSHA and its failings attracted public scrutiny in the wake of the Upper Big Branch mine explosion on April 5, an accident that took the lives of 29 miners.  Turns out, the Upper Big Branch Mine (UBB) had long been on MSHA's radar screen as a bad actor.  In December 2007, the MSHA, a division of the Dept. of Labor, noted that the mine had been cited for 204 serious and significant violations in the past two years, a rate about twice the national average.  MSHA warned the mine's owner, Massey Energy, that  it had a potential "pattern of violations," a designation that would have permitted MSHA to close the mine each time it found a significant violation.  While Massey cleaned up its act enough in the months following that warning letter to avoid the "pattern of violations" scrutiny and consequences, it nevertheless continued to accumulate violations.  After the rate of violations decreased in 2008, they again accelerated.  One news report indicates that, in March 2010 alone, the MSHA cited the UBB mine 53 times.  Another indicates 515 citations at UBB in 2009.  Analysis by New York Times reporters indicates that one of the problems with the MSHA was not its failure to watch Massey, but rather a huge backlog of appeals by mining companies challenging citations.  According to the NYT, one in four MSHA citations are now appealed, which has resulted in a 18,000 pending appeals and $210 million in contested penalties.  Massey alone appealed 37 of the 50 citations it received for serious violations in 2009.  Read more here, here and here.

Written by Angela Harris When I was in college, there was a button that some of us took to wearing.  It was green (I seem to remember) and the message it bore was "59¢."  It recorded the fact that, on average, for every dollar a man made a woman made fifty-nine cents. I was reminded of that button after attending the AALS Mid-Year Workshop on "'Post-Racial' Civil Rights Law, Politics, and Legal Education: New and Old Colorlines in the Age of Obama," last week in New York City.  There, Professor Florence Roisman called our attention to a report released in May by the Institute on Assets and Social Policy (IASP) at Brandeis University. According to this report, between 1984 and 2007 the racial wealth gap between black households and white households increased fourfold: from $20,000 in 1984 to $95,000. As Thomas Shapiro (who leads IASP) and Melvin Oliver explained in their important book, Black Wealth/White Wealth, this wealth gap is different from the income gap my friends and I protested in college. Income is, for most people, their paycheck; it pays the mortgage or the rent, buys groceries, goes toward the car payment, and disappears by the end of the month. Wealth -- or "assets" in the IASP parlance -- is money that sticks around, gaining in value; it allows people not just to get by but to invest in the future: to "pursue an education, buy a home, start a business, live securely in retirement, and weather economic challenges of unemployment, illness, or disaster."

Written by Katie Porter One of the great lessons of consumer law is the gap between the law on the books and the law of the land. Recent activity around public benefits illustrates this phenomenon. Under federal law, a variety of public benefits, such as social security disability payments,…

Written by Jessica Silbey This past semester, while teaching constitutional law, a student (also a male US Marine) asked if I would be interested in hosting a panel with some female marines (his colleagues) to discuss the combat exclusion for women. Of course, I said yes. It was a fantastic panel. Two women -- very different in their experience in the military and in life -- with very similar perspectives on the combat exclusion: it sucks. When faced with the "reasons" for the exclusion, the only one that rang true for these women was that the male marines would be derelict in their duty of fighting smartly and protecting wisely because they would be preoccupied with protecting the women marines. So, we summarized, women are excluded from full service to their country (what I consider a stigma symbolizing less than full citizenship) because of men's shortcomings.

Written by Angela Harris On this Memorial Day, I want to remember someone who is not an American, but who lived and died for ideals that continue to shape the lives of people around the globe. I am thinking about Jan Smuts. In a recent book, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations, Mark Mazower notes that for the men who conceived of and built the League of Nations following the First World War, internationalism meant less a world of democratic nation-states, and more an idealized version of the British Empire. The objective of the League of Nations, in Mazower's words, was a "liberal world order that would be compatible with empire and Anglo-American hegemony for decades to come." The League of Nations died, and the United Nations was born. But Mazower identifies important continuities.  Jan Smuts is one. As prime minister of South Africa, Smuts acted as a conduit between Woodrow Wilson and British officials in London when the League was being formed. He also helped draft the preamble to the United Nations charter. That text speaks of "the dignity and worth of the human person," "the equal rights of men and women and of nations large and small,"  and, most importantly, of "fundamental human rights."

Written by Angela Harris What might "law and economics" look like if its economics were based on the actually-existing economy? On Monday and Tuesday of this week, the University at Buffalo Law School moved to answer this question with a workshop entitled "Rethinking Economics and Law After the Great Recession." The workshop was organized by the "class-crits," a small group of American legal scholars (I count myself as one) who bring the insights of critical legal scholarship to the study of the interrelationships among market and state institutions. Sponsored by the Baldy Center for Law and Social Policy, an internationally recognized institute at the University at Buffalo that supports the interdisciplinary study of law and social institutions, this year's class-crits meeting brought legal scholars together with "heterodox" economists. The results were inspiring, exciting -- and subversive.

Gypsy, pictured here, has since healed and is happily homed by those who rescued her. Written by: Tucker Culbertson If a picture costs a thousand wounds should that speech be free? If answering “Yes” stokes a market, causing thousands more such wounds, should we answer “Yes”? This is about dog fighting videos. By a vote of 8 to 1, the Supreme Court recently struck down a federal law which criminalized some commercial depictions of cruelty to animals.  Justice Alito’s lone dissent says most of what needs to be said about what’s wrong with the majority opinion.  I’ve written this post only to emphasize that the Court, and most commentary, has buried the real headline.

Written by:  Angela Harris "Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns -- the ones we don't know we don't know." As the oil slick spreading across the Gulf of Mexico reaches, reportedly, the size of Puerto Rico, and BP continues to attempt to take the responsibility but not the blame, we can recall Donald Rumsfeld's words. Bill McKibben would like to add one important fact to our store of known knowns: The planet Earth we used to know is gone.

Written by:  Angela Harris There were maybe twenty of them. One or two women beamed encouragingly as I stood up. I love the ones who support you: open faces that track your face, smiles and nods, puzzled looks when they get lost. But the bodies of the ones who drew my attention were rigid and tight. Arms folded over chests. Gazes studiously focused on nothing. I was there with my black face and my assigned readings to talk to this colleague's criminal procedure class about race and space.

Written by: Karla McKanders If Arizona's passing the immigration law on Friday is a measure of our nation's racial sensibilities, our country has a long way to go.  Our country has a long history of racial discrimination towards minority groups, including Latino immigrants. In the 1800s, Congress passed the Chinese exclusion laws barring persons of  Chinese descent from immigrating to the United States and implementing forced labor for those who violated the laws. California instigated the passing of discriminatory and racist exclusion laws. In the early twentieth century, states also passed alien land laws which barred ownership of property by non-citizens. These laws were targeted at Japanese immigrants who, as non-whites were barred from becoming citizens. In 1965, in the wake of the Civil Rights Movement, the Immigration Act was passed which abolished all racial quotas and racial considerations from influencing whether a person could immigrate to the United States. Our world is also all too familiar with the apartheid laws that excluded racial minorities in South Africa. In 1950, South Africa passed the Population Registration Act which formalized racial classifications and required all persons over eighteen to carry an identity card, specifying their racial group. All civil, political and economic rights were extended to persons based on the racial category in which they belonged. The Pass Laws required persons to produce a passport like document stating the person’s race. The penalty for failure to produce an identity card resulted in detention until the subject’s identity was verified. These laws may seem like a thing of the past, however, on Friday, Arizona passed Senate Bill 1070.  This law permits police officers and other state agencies to identify, prosecute and attempt to deport undocumented immigrants. The law would allow the police to detain people they reasonably suspect are in the country without authorization and makes it a criminal offense for not carrying immigration documents. Residents can also sue cities if they believe the law is not being enforced. In addition, “[t]he law creates new immigration crimes and penalties inconsistent with those in federal law, asserts sweeping authority to detain and transport persons suspected of violating civil immigration laws and prohibits speech and other expressive activity by persons seeking work.” Arizona Governor Jan Brewer claims that the law is in reaction to the federal government’s unwillingness to pass comprehensive immigration legislation and that the states have to enact and enforce their own immigration laws.

Written by:  Karla McKanders Shortly after health care reform passed, Republicans stated that there will be no cooperation with Democrats for the rest of the year.  Specifically, John McCain stated “There will be no cooperation for the rest of the year. They [Democrats] have poisoned the well in what they’ve done and how they’ve done it.” In addition, Republican Senator Lindsey Graham, stated that he was withdrawing support of an outline for joint immigration bill with Democratic Senator Charles Schumer.  The joint bill proposed a pathway citizenship for undocumented immigrants by establishing biometric Social Security cards to ensure that illegal workers cannot get jobs; strengthening border security and interior enforcement; creating a process for admitting temporary workers; holding employers accountable for hiring undocumented workers; and implementing a tough but fair path to legalization for those already here. Graham echoed McCain’s sentiment that the passage of the health care bill “poisoned the well” of bipartisanship diminishing all hopes of cooperation on immigration reform. On the eve of health care reform, on March 21, 2010, many immigrant's rights advocates descended on the mall in Washington, D.C. to advocate for Congress to start discussions on immigration reform. More immigration rallies are being planned across the country to get Obama to place immigration reform on the Administration’s Agenda.

Written by:  Deborah Post Last week we learned that Jim Perdue,  Chairman of Perdue Foods Inc., spoke to Maryland legislators on behalf of the small farmers he claimed would be forced out of business if the environmental law clinic at University of Maryland Law School is allowed to sue Perdue and one of its growers.  I was familiar with Perdue's relationship with small farmers.  Some years ago -- in 1998, to be precise -- I wrote a contracts exam using the pleadings filed in Monk v. Perdue Farms, Inc., 12 F. Supp.2d 508 (D.Md. 1998),  by plaintiff's attorney, Roger L. Gregory, then partner in the firm of Wilder and Gregory, now judge on the Fourth Circuit Court of Appeals. Monk was a case about racial discrimination. Several black farmers alleged that they were not accorded the same treatment under the terms of Perdue's standard form contract as white farmers.  In that respect, the Monk case bore some resemblance to Reid v. Key Bank of Southern Maine, Inc., 821 F.2d 9 (1st Cir. 1987), a case I cover in contracts when I teach students about the implied duty of good faith. Mr. Reid was the only borrower at the bank to have his line of credit cut off, his note accelerated, his collateral seized without the bank officers first calling him in to the bank for a meeting.  Reid is still mentioned in other casebooks in notes about lender liability or the subjective test for good faith, but these notes appear to sidestep the issues of race and motive altogether.  The relationship between motive, malice and racial prejudice is admittedly somewhat ambiguous in Reid because the jury found there was no racial discrimination by the bank.  Nevertheless, Reid is still a case that calls attention on the disparate treatment one black businessman received and the inferences that could be drawn from that fact.