Salt Blog

Martha T. McCluskey Nov. 9, 2010 Most Americans deserve a good economic spanking, says one commentary in a contemporary campaign to explicitly ground free market economics in religious morality (The Impending Economic Spanking).   Paul Krugman recently warned that the bipartisan embrace of austerity politics reflects a morality of self-flagellation more than economic logic (Mugged by the Moralizers). In legal academia, “social justice” tends to be discussed as a question of morals over economics.  Some advocates of Law and Economics have explained its value as a rigorous approach to the policy implications of law, turning debates about justice from abstract and subjective normative principles to more practical prediction and measurement of consequences. (Ulen 1992).   Going further, Kaplow and Shavell’s now-classic Fairness versus Welfare (2001) argues that individual well-being, based on empirically measurable and self-defined tastes and preferences, should be the sole measure of justice.  As law professor Oren Kerr remarked (in a 2008 posting to the Volokh Conspiracy blog), “’social justice’” is a keyword for the point of view that it is more important to work towards an equitable distribution of wealth than it is to foster maximum growth of wealth. Any mature person realizes that those are both laudable goals that cannot, unfortunately, be simultaneously realized.” Advocates of “social justice” tend to accept this framework, while defending the morality of equity over the individualistic and consequentialist goal of economic wealth-maximizing.

Written by Martha McCluskey Nov. 5, 2010 Why was the message of austerity so appealing to economically insecure voters in this week’s election?    A more intellectual version of this passionate opposition to social spending, regulation, and deficits has become conventional wisdom in legal academia, thanks in part to several decades of lavishly funded law-and-economics programs. The populist enthusiasm for austerity helps bring out a striking tension within the familiar efficiency-maximizing ideal of law-and-economics.   Efficiency is supposed to stand for increasing the size of the economic pie – for aggregate growth or maximization of resources (sometimes termed “welfare”) – as opposed to distribution of the economic pie (equity or fairness).   It teaches that soft-hearted liberals and progressives might want to spread the wealth around, based on our concern for some group of have-nots, but we will end up doing more harm than good to those have-nots if we don’t subject our compassion to a hard-nosed rationality that weighs the benefits of redistribution against the costs to growth.   If we choose policies aimed at equity for the have-nots over aggregate growth, we will end up with fewer resources to distribute, with the result of increasing the problem of have-nots.  So, the truly compassionate and moral – and rational – policy is to maximize overall growth, which should make it easier (and fairer) to spread the wealth around. Yet how does law-and-economics teach us to maximize growth?  Typically, by promoting austerity.

Written By Hazel Weiser Back in the days about which Tea Partiers seem naively nostalgic—the pre-Civil Rights 1960s, before the Beatles invasion, before JFK was assassinated—there was plenty of poverty in the United States.  OK, I’m making another reference to Mad Men, the AMC drama series that reveals the racist, sexist underbelly of post-World War II America.  (I can’t help myself, because Don Draper, played by handsome Jon Hamm, is falling apart stripping away the illusion of the perfection of those neat little suburban communities.) Back then  I recall the day I learned about pervasive poverty.  I was in the eighth grade, Miss Welch’s geography class.  She announced in her precise diction  (I can still hear her dentalized "t" in my head)  that 20% of the population of this country lived in poverty.  My arm shot up, I had to ask the question: Why?

by Margaret Martin Barry I was driving back from the rally for sanity, when I heard Andrea Seabrook's report on NPR.  I wrote a response to NPR and thought I would share and expand a little on the blog.  Seabrook called the rally odd.  I agree that there was time lost on what seemed to be no more than goofing around, but that in and of itself had a message Seabrook either did not understand or did not take the time to analyze.  One of the points that Jon Stewart and Stephen Colbert were making is that people are hungry to rally around something, anything that is contrary to the absurdities they are fed on a daily basis by the media and politicos, to the extent there is a difference. That Seabrook compared the rally to the Glenn Beck’s in terms of size, content and attendance, was simply inaccurate.  I can understand being innumerate, but a rough look at the Mall would have made clear that there were many times the number of people at this rally.  In terms of content, the message was respect for ideas, thoughtful dialogue and the hard work of developing one's ideas based on factual investigation and analysis.  That was 180 degrees from what Glenn Beck was trying to evangelize.  Furthermore, this rally in no way attempted to cynically co-opt the civil rights movement to preach the opposite. 

by andré douglas pond cummings Professor Timothy Canova at Chapman University School of Law has recently published “The Federal Reserve We Need” in The American Prospect.  Therein, Professor Canova details, painstakingly, the path that The Federal Reserve has taken from a governmental agency charged with safeguarding the…

Written by: Denise Roy I have a confession, and I’m more than a little nervous about making it, but here goes.  I am passionate about democracy.  Though often disheartened by the reality of democracy—in the name of which we have Prop 8 and the Tea Party—I remain enthralled with and buoyed by the idea and promise of democracy, convinced of its necessity in moving toward peace and justice. In my SALT blog posts this month, I will attempt to explain my faith in democracy as an instrument of justice despite all apparent evidence to the contrary. Now, what you and I understand when we think of “democracy” may well be quite different.  Though it might clarify to provide my working definition of democracy, I’m going to hold off until a later post to talk about the nature of democracy in more depth.  For now, suffice it to say that I am not talking about a passion for U.S. democracy or majority rule or any other particular version of “democracy” that exists in the real world or that serves as shorthand for a very complex, contextual and “essentially contested” concept.  Nor am I limiting my use of “democracy” to the governmental sphere.  Democracy’s relevance has much wider scope, extending beyond government to communities, organizations and even intimate relationships.  Says Walt Whitman: Did you, too, O friend, suppose democracy was only for elections, for politics, and for a party name? I say democracy is only of use there that it may pass on and come to its flower and fruit in manners, in the highest forms of interaction between [people], and their beliefs -- in religion, literature, colleges and schools -- democracy in all public and private life....

Posted by Lisa R. Pruitt A headline in today's NYT proclaims, "'Culture of Poverty,' Once an Academic Slur, Makes a Comeback." Journalist Patricia Cohen writes of a new (or renewed) academic turn to discussions of poverty in relation to culture, and she recalls a time when such discussions became politically incorrect. The reticence was a legacy of the ugly battles that erupted after Daniel Patrick Moynihan, then an assistant labor secretary in the Johnson administration, introduced the idea of a “culture of poverty” to the public in a startling 1965 report. Although Moynihan didn’t coin the phrase (that distinction belongs to the anthropologist Oscar Lewis), his description of the urban black family as caught in an inescapable “tangle of pathology” of unmarried mothers and welfare dependency was seen as attributing self-perpetuating moral deficiencies to black people, as if blaming them for their own misfortune.

Written by Joanna L. Grossman An appellate court in Florida recently struck down the state's ban on adoption by gays and lesbians (the only such law in the nation).  The Department of Children and Families announced last week that it will not appeal the ruling, but the state's attorney general, Bill McCollum, has authority to take the case to the Florida Supreme Court to defend the constitutionality of the statute. The law at issue, Fla. Stat. § 63.042(3), was enacted in 1977, as part of former Miss America and orange juice spokeswoman Anita Bryant's national campaign to "save our children" from homosexuals.  The law provides that "No person eligible to adopt under this statute may adopt if that person is a homosexual."  By interpretation the law was limited to "practicing" homosexuals, but it has been routinely invoked to deny petitions by gays and lesbians to adopt children, even in cases where the adults were already serving as foster parents to the children they sought to adopt. It seems improbable that this law could have survived the U.S. Supreme Court's ruling in Lawrence v. Texas (striking down a Texas law criminalizing same-sex sodomy on substantive due process grounds) and Romer v. Evans (striking down an anti-gay referendum in Colorado on equal protection grounds).  Yet, the Eleventh Circuit Court of Appeals upheld the law against a constitutional challenge in Lofton v. Secretary of the Department of Children and Family Services (2004).

Written By Hazel Weiser For those of us who adore Mad Men, the AMC series that snidely reveals the underbelly of a racist and gendered post-World War II America through a peek into the advertising business, this season is the best yet.  Don Draper, played by the incredibly handsome Jon Hamm, is falling apart: from alcohol, lies, and too many women.  He is divorced, living in a drab Greenwich Village apartment, and everything is catching up to him.  Why in a recent episode, he even threw up from drinking too much.  And now the advertising agency where he is creative director just lost the Lucky Strike cigarette account.  This might mean financial ruin for them all.  So what does Don do?  He takes out a full page ad in the New York Times announcing that the agency will no longer represent tobacco companies. To save the company, he pretends to have some ethics, but it’s really just about money. Although certainly not as handsome as Don Draper, Ward Connerly, the former member of the California Board of Regents and founder of American Civil Rights Initiative, is as slick as a Mad Man.  An African American businessman, Connerly has put together the campaign to end affirmative action by coopting the language of the civil rights movement.  The ACRI was behind efforts in California, Washington, Michigan, Florida, and Nebraska to ban affirmative action by claiming to be for civil rights.  Ms. Magazine published an expose about Ward Connerly in Winter 2008, revealing that he brought in $1.6 million in fees from ACRI in 2006, the last period documentation was available.

Written by Joanna Grossman As millions of young athletes hit the playing fields this fall, we should take stock of all the strides that have been made towards gender equity in athletics -- and all that could still be done.  A new book by Deborah Brake, University of Pittsburgh School of Law, does this brilliantly.  Getting in the Game: Title IX and the Women's Sports Revolution (NYU Press 2010) is a detailed, compelling, and readable account of Title IX and the ongoing quest for gender equity in sports. In the book, Brake considers Title IX's impact on athletics from its passage in 1972 through 2010.  An iconic law that has inspired everything from blogs, sit-ins, and t-shirt slogans to vicious backlash, Title IX is widely credited with opening the doors to the massive numbers of girls and women now participating in competitive sports.  Yet, few people fully understand the law's requirements, its enforcement mechanisms, or the extent to which it has succeeded in challenging the gender norms that have circumscribed women's opportunities as athletes and their place in society more generally.

Written by Deborah Post The push to deregulate tenure is justified by its advocates in several ways. In a prior post, I discussed one strategy the trivializing of faculty opposition which is characterized as “interest group politics” focused on “terms of employment.”  The role of faculty as managers of law schools is erased, usurped by decanal assertion of management expertise. The more powerful argument, at least where the lay public and a good portion of the legal practitioners are concerned, is the allegation that tenure prevents a dean and a school from removing faculty who are unproductive to make a place for new, young, industrious, creative faculty.  The spectre of a doddering faculty member who comes to school only to teach, riffling through pages as old as he or she, is powerful.  In its worst form, it suggests that law professors are the worst form of slackers, earning salaries completely disproportionate to the value they deliver to the law schools. Not only is this caricature unfair and misleading, but it is inaccurate to say that tenure means unproductive faculty must be retained and that tenure keeps schools from hiring new, young faculty.

Every now and then I have to turn off the news, totally, foregoing even my beloved The Daily Show with Jon Stewart. It’s my sanity break, imposed to give me a mental holiday from everything over which I feel helpless. This most recent interval without hyperbolic headlines brought to light a sad, new question: have we become ungovernable?

Written by Ezra Rosser This summer I decided to read up on the bailout and the origins of the economic crisis because, while I was aware of the broad strokes, I thought the near collapse of our financial sector was a topic that could have sufficiently lasting impact that it was worth learning more.  I read (in order): Lawrence MacDonald & Patrick Robinson, A Colossal Failure of Common Sense: The Inside Story of the Collapse of Lehman Brothers (2009); Michael Lewis, The Big Short: Inside the Doomsday Machine (2010); and Roger Lowenstein, The End of Wall Street (2010). I decided to read A Colossal Failure of Common Sense because I liked the cover, which features a great photo of the Wall St. bull.  But the common advice about buying a book for its cover held true in this case.  It is billed as an inside account, but the insider is not sufficiently powerful to have played much of a role and too often fails to recognize the larger problems at Lehman and similar banks.  The mortgage department is subject to scorn and hindsight-aided insults, while the successful trades of the author are celebrated for whole chapters.  What is missing is recognition that the gains in non-mortgage arms of Lehman and the gains and eventual losses in the mortgage and real estate arm were driven by the same tool: tremendous leverage.  The authors attribute the failure of Lehman largely to a distant CEO - Fuld - and while you leave the book convinced that a change in leadership would have helped pull Lehman back from real estate, I did not get the sense that that change alone would reduce the bank's exposure to the next bubble.  Mortgage brokers are described as flashy with fancy cars and big muscles, but the authors seem unaware of the irony of spending so much time describing the fancy meals and presents that Lehman executives lavished on well performing mid-level employees.  The culture of mortgage lenders at the height of the bubble described in the book could have been, but was not, a way for the primary author and Wall St. to look in the mirror.

Imagine for a moment that this is a march of Wall Street titans, other social elites and their pampered children, marching to show gratitude for having been rescued and bailed out, thanking the rest of us for shouldering the costs of their insane risk-taking. No, that’s not a sight we are likely to see.

Dr. Martin Luther King, Jr. observed in 1963 that "it is appalling that the most segregated hour of Christian America is eleven o'clock on Sunday morning."

Written by Ezra Rosser I have been thinking a lot recently about how lucky I am (a semester off from teaching helps!) and the way this influences or will influence my writing.  There is nothing new to the idea that professors, particularly law professors, may be biased in part by their privilege.  Jeffrey Harrison has a great blog dedicated entirely to "Class Bias in Higher Education" and Sarah Palin continues to criticize Obama as a law professor standing at a podium and not a commander-in-chief (Prof. Ogletree's interpretation of this insult is worth checking out).  The New York Times' recent article on "The End of Tenure," Sep. 3, 2010 also called attention to professorial privilege. The danger that privilege will cloud professors' policy recommendations was dramatically illustrated by a recent blog entry by a University of Chicago law professor criticizing the Obama plan to discontinue the Bush tax cuts for income about $250K that has gotten some media attention and inspired a great response by Michael O'Hare on his blog, www.samefacts.org: "The whining of the rich," Sep. 18, 2010 (links to the cached version of the entry are provided by O'Hare's entry).

Written by Jeannine Bell In an earlier blog, I complained that we never talk about class in law schools and compared the prevalence of talk about race to talk about class. While it’s true that race is discussed much more than class, I’d liked to focus…

by andré douglas pond cummings In a completely under the radar moment, a new law of considerable importance was passed by Congress and signed into law by President Obama last month.  The Fair Sentencing Act of 2010 was introduced by Senator Richard Durbin (D-IL) in March 2010 and signed into law by President Obama on August 3, 2010.  Before passage of the Fair Sentencing Act of 2010, defendants that possessed 5 grams of “crack” cocaine were sentenced to a mandatory minimum prison term of 5 years.  In contrast, a defendant possessing powder cocaine had to possess 500 grams of powder before the same 5-year mandatory minimum sentence would be triggered.  For more than 20 years, a 100:1 crack-powder sentencing disparity has existed in our nation’s federal legislation.  This disparity has literally devastated urban communities across the nation and has cost the U.S. government millions of dollars as federal and state prisons are overflowing with non-violent inmates, an overwhelming majority of which are African American. As an example of this devastating racial disparity, 80% of all defendants sentenced under federal crack cocaine laws in 2008 were African-American, and prison sentences for crack cocaine offenses averaged two years longer than those for powder cocaine.  As President Obama observed at the signing of the Fair Sentencing Act, the old sentencing regime was “fundamentally unfair.”  The Fair Sentencing Act of 2010 aims to “restore fairness to Federal cocaine sentencing,” by significantly reducing the crack-powder cocaine sentencing disparity from 100:1 to 18:1.  Today, a defendant must now possess 28 grams of crack cocaine (rather than 5 grams) before a 5-year mandatory minimum sentence is required. This difference represents an enormous practical effect, which is that this new threshold essentially eliminates the mandatory 5-year minimum for simple possession—most dealers and traffickers carry crack in amounts of 28 grams or more.

Written by Jeannine Bell Every year I’m approached by students who have an interest in public service.   Though I myself am quite public-service minded–I’ve spent some time working with nonprofits, I know several public interest lawyers and I believe fervently in doing this work, whenever I’m asked about this,…

Written by Ezra Rosser The New York Times recently published a story -- Norimitsu Onishi, Toiling Far From Home for Philippine Dreams, New York Times, Sept. 18, 2010 -- that gives me a chance, really an excuse, to blog about an issue that interests me a great deal: immigrant remittances.  The New York Times has to its credit covered this issue quite well.  Although slightly dated, a 2007 interactive graphic -- Snapshot: Global Migration -- includes eye-opening global maps of money sent home (the N.Y. Times' language, not mine) by immigrants, and the related percentage of GDP that amounts to for receiving countries.  Perhaps the most in depth Times article on the topic also focused on the Philippines and is a great place to start for those not familiar with the topic of immigrant remittances: Jason DeParle, A Good Provider Is One Who Leaves, New York Times, Apr. 22, 2007. The legal academy is in the midst of what optimistically might be called a mini-wave of writing on immigrant remittances.  Adam Feibelman has recently published, The Very Uneasy Case Against Remittances: An Ex Ante Perspective, 88 N.C. L. Rev. 1771 (2010).  That one article is enough for a mini-wave in this area considering how under-explored remittances have been by legal academics.  But Heather Hughes also has a book chapter on remittances coming out soon. My own article, Immigrant Remittances, 41 Conn. L. Rev. 1 (2008), is a bit older and is less technical than the book chapter and, given the newest article, perhaps could be characterized as The Uneasy Case For Remittances.  In it, I argue against what I call institutional capture of the remittance phenomenon.  The focus is on remittances to Latin America and in particular to El Salvador.  Remittances raise a number of questions about immigration, law and development, family law, and poverty alleviation...