- 50th Anniversary
- Online Edition
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- Donahue Lecture Series
Anyone with a Hotmail or Yahoo account is well acquainted with the inconvenience and irritation of e-mail inboxes brimming with unwanted offers of opportunities to earn thousands while working from the comfort of home, ways to improve sexual stamina, or miracle weight-loss pills. Spam, the common term for unsolicited commercial e-mail, has plagued both computer-savvy and technologically-challenged individuals. Most users quickly learn to identify and delete junk e-mail. Although some spammers have devised sophisticated techniques to disguise the true nature of their messages, most spam is relatively simple for recipients to spot and discard. In the workplace, spam is more problematic because it interferes with productivity. To account for this issue, businesses are forced to invest in expensive screening programs that filter the offensive material, while funneling through legitimate messages.
In response to the inefficiency of sorting genuine constituent e-mail from spam, many congressional members began implementing “logic game” software to facilitate the organization of legitimate messages and block unwanted e-mail. The “logic game” is an additional filter apart from protections previously in place. After completing a webform with contact information and selecting a pre-approved issue, the logic-puzzle feature further compels the correspondent to solve a simple math equation. These logic puzzles are CAPTCHA filters, similar to those used on commercial Web sites such as Ticketmaster or Paypal, which deter automated registration and ensure that the e-mailers are human and not computers with distorted text only humans can decode. CAPTCHAs, named as an acronym for Completely Automated Public Turing Test to Tell Computers and Humans Apart, are automatically generated tests designed to allow humans to pass and computer programs to fail. . . .
It is an honor to be a part of this symposium, but I have to admit that I am a little embarrassed by its title. I have certainly never thought of myself as a “public intellectual.” And to whatever limited extent I may fit the definition the organizers had in mind, so do many others of much greater distinction. Even in my own little corner of labor and employment law—union democracy law—I share the public intellectual podium, figuratively at least, with Alan Hyde of Rutgers Law School, and with my law school classmate, Chicago labor lawyer and writer, Tom Geoghegan, among others.
Nevertheless, I appreciate the opportunity to write about the cause to which I have devoted a good part of my career both inside and outside the halls of academia: the struggle to make the labor movement more democratic and more responsive to its members. After a brief explanation of how I became involved in the union democracy movement, this article will highlight some of the reasons why I believe union democracy is such an important cause. It will then explain why the role of public intellectuals is particularly important for the cause of union democracy, and will conclude with a description of some of the ways my work in the area of union democracy has enhanced my teaching and scholarship. . . .
Section 601(a) of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act (INA) definition of “refugee” to include victims of coercive family-planning policies. In the 1997 decision In re C-Y-Z-, the Board of Immigration Appeals (BIA) interpreted section 601(a) to extend protection to the victim’s spouse, offering automatic refugee status to both individuals. Since then, circuit courts have disagreed over whether C-Y-Z-’s holding also extends automatic asylum to the victim’s common-law spouse, unmarried partner, or fiancé. In Shi Liang Lin v. U.S. Dep’t of Justice, the Second Circuit Court of Appeals considered whether section 601(a) confers automatic refugee status on a victim’s unmarried partner. The Second Circuit not only declined to impute automatic refugee status to a victim’s unmarried partner, but also abrogated C-Y-Z- as applied to a victim’s legal spouse. The court held that neither the victim’s spouse nor unmarried partner are per se refugees, and that to obtain asylum, such applicants must demonstrate their own persecution under China’s coercive policies. . . .
The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures by the government. The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.” If, however, a person consents to a search by a government agent, no Fourth Amendment violation occurs. In Johnston v. Tampa Sports Authority, the Eleventh Circuit considered whether a football game spectator consented to a pat-down search by presenting himself at the stadium entrance. The court held the spectator voluntarily consented to the pat-down search because he was aware of the search policy and continued to seek admission into the stadium. . . .
At least since the Legal Realists’ early twentieth-century critique, legal theorists have struggled to understand the relationship between law and reason. Other disciplines can help with that project. The longstanding trend toward economic analysis is one well-developed approach. Recent scholarship looks to both economics and psychology to analyze the law of risk. In this article, I use anthropological theories of ritual and magic to reconsider the role of doctrinal reasoning and formal procedure in adjudication and adjudication’s role in social change. I argue that aspects of law regarded as irrational “magic” may contribute to adjudication’s social effects and meaning.
The idea that law has something in common with magic is not new. In the 1920s and 1930s, the American Legal Realists expressed their critique of legal rationality by complaining that judges practice “legal magic.” According to the Realists, legal outcomes were actually determined by judges’ individual preferences and ideology. Traditional legal methods—precedential hierarchies, doctrinal formulas, and procedural rules—were nothing but “magic solving words,” “word ritual,” and “legal myth” that obscured the real reasons for court decisions. Although the most important Realist writings were produced some seventy years ago, they exert a powerful continuing influence. Today’s ascendant economic approach to legal analysis is a Realist descendent. And while little has been written about the Realists’ analysis of legal magic, references to “talismanic” legal reasoning and “magic words” crop up with some regularity in case law to this day. Moreover, a few scholars have recently begun again to recognize the connections among law, magic, and ritual. . . .
Real estate agents are the principal facilitators in modern real estate transactions. As prospective buyers and sellers become more technologically savvy and desirous of information, however, they increasingly turn to Internet-based services to search for or market available properties. “For-Sale-By-Owner” (FSBO) websites allow sellers to advertise or “list” properties in online databases that permit buyers to register to obtain property information. FSBO websites offer low, flat-fee rates, in contrast to the percentage commissions typically sought by real estate agents.
Though reduced closing costs are enticing to consumers, licensed agents take exception to the breadth of services offered by these websites. REALTOR® groups insist that the stringent legal and ethical standards to which licensed real estate brokers must adhere are routinely violated by FSBO websites. They contend that the personalized services and advice certain websites provide belie their purported indifference to the transactional outcome, and thus should comply with the statutory licensing requirements. In response, some websites protest that licensing statute definitions are overinclusive and the corresponding restrictions impermissibly interfere with their ability to communicate. . . .
Publicly traded firms, in the wake of the Enron and WorldCom collapses, face increased scrutiny from the Department of Justice, the SEC, state attorneys general, an active plaintiff’s bar, stock exchanges, and the 2002 Sarbanes-Oxley Act (Sarbanes). Firms increasingly face shareholder challenges demanding increased power over executive compensation, merger and acquisition decisions, and directorial elections. While substantive state law traditionally governed the internal workings of corporations, since 2002 Congress, federal courts, and the SEC have deliberately—and sometimes with good reason—intruded into these state law areas. The resulting increase in compliance costs, coupled with expanding areas of liability for directors, and uncertainty over the federal government’s often ad hoc rulemaking is forcing an increasing number of executives and public firms to explore the benefits of going private, and simultaneously pricing some private firms out of the United States’ public markets altogether. Unprecedentedly diffuse ownership in today’s public capital markets makes those markets’ retention of firms and top executives critical to America’s long-term economic health.
Federal courts have aided Sarbanes’ intrusions into state corporate law by creating, enforcing, and broadly interpreting new rules that effectively supplant well-established state corporate law. Though SEC officials recognize that state law theoretically controls corporate governance, its leadership recently suggested that the SEC “empower investors” by creating new federally mandated directorial duties beyond substantive fiduciary duties developed over centuries of state common-law evolution. Despite recognizing the excruciatingly high costs of compliance for small firms, SEC officials seem intent on creating duties based on social benefits and a “culture of compliance” among public companies. Federal courts, however, at times check the SEC when it overreaches and fails to consider the economic consequences of its actions while acting in the name of corporate governance. Indeed, Stoneridge Investment Partners, L.L.C. v. Scientific-Atlanta, Inc. suggests that the Supreme Court will not give in to political and institutional advocates of far-reaching reforms where Congress has not expressly authorized such regulation. . . .
The accession of Deng Xiaoping to leadership in China after the death of Mao Zedong in 1978 provided the impetus for the revival of China’s legal system. That commitment to build a rule of law has contributed to China’s current phenomenal growth. More recently, China’s entry into the World Trade Organization required a commitment to transparency in the lawmaking process, procedures for challenging administrative action, and judicial independence. This article will attempt to assess the progress of a part of that project: the creation, virtually from scratch, of a trained legal profession over the past thirty years.
The Western notion of enforcing one’s legal rights through litigation does not sit well with the Chinese. Not only is the concept of a legal right a foreign concept, but the pursuit of self-interest through adverse litigation is at odds with the paramount virtue of social harmony. It is difficult for the average Chinese person to conceive of a court as other than a place where bad people go or where bad things happen to people at the hands of government. The topdown view of law as an instrument of government with citizens as the objects of legal regulation remains influential in China today. Courts generally do not welcome litigation and often try to discourage it. Far more than in many other systems, the Chinese legal system is willing to forgo the enforcement of rights when other pressing values seem to be at stake, to the point where it might be more accurate to say that the system recognizes interests more than rights. . . .
When I was trying to come up with a topic for the Donahue Lecture and Essay, my law clerks suggested that I focus on the unintended complications that appellate courts sometimes impose on district judges. From guest sittings on the Court of Appeals, I have learned that appellate judges approach cases and legal issues differently from trial court judges. Trial level judges have busy civil and criminal dockets to move, so we tend to favor practical—rather than elegantly theoretical—solutions to the problems we face. The practical considerations of case management, however, are not always taken into account in appellate decisions. When the rules that are handed down are difficult or time-consuming to implement, they can adversely affect the administration of justice at the nisi prius level.
We have all heard of the law of unintended consequences. More than a few recent appellate decisions have brought in their wake unanticipated (and, I am sure, unintended) consequences for the management of cases in trial courts, to the prejudice of litigants and the consternation of the judges who must put the decisions into practice. . . .
For more information about Judge McMahon’s Donahue Lecture (which served as the basis for this article) please click here.
I want to thank the Section on Labor Relations and Employment Law, specifically David Yamada and the other organizers of this panel, for choosing the theme that brings us here today. The idea that people who teach and write about the employment relationship might have something special to offer as public intellectuals is both a compliment and a challenge.
The particular project I will discuss is my work on a film called Morristown: In the Air and Sun, released in 2007 after the labor of almost a decade. During that time, I worked closely with Anne Lewis, the independent filmmaker who created the documentary. Now, she and I are up to our elbows in the distribution phase of the effort. I will share below several stories about how the project came to be and what lessons one might take from it as to possible productive roles for public intellectuals. Before beginning that discussion, however, I want to set out some things about the larger perspective I bring to this work, a move that I hope will better equip readers both to question and to understand what follows.
I take myself to be a partisan in what I view as a momentous battle going on in our country and in the world over how we are going to order our economic and political affairs, whose interests will be taken into account, where our resources ought to flow, what values and priorities ought to guide our steps, and who will participate in making important decisions about the rules of the game. I do not see this as a simple battle driven by a single set of issues, nor one in which all the good is on one side and all the evil on another. . . .