There has been a recent resurgence of interest in class in legal scholarship. This development might have been predictable. Inequality in America has grown sharply over the past two decades. Working people face job tenure insecurity, massive shifts in work structures, and heavy debt. Indigent families have begun experiencing the termination of assistance from the state. Revelations of corporate wrongdoing highlight the power of wealth. But the new interest in class is not rooted primarily in concern with the conditions of low wage workers or the unemployed. Rather, it is a new twist on the topic of race. Out of social discomfort and legal challenges to affirmative action, judges and scholars are seeking a way to confront inequality without confronting race.
Class is important in its own right, but in the United States people usually do not talk much about it. The term is unfamiliar, packed with many different meanings, and uncomfortably radical. In law and popular discourse, the figure of the white working class person has appeared in recent years as the symbol for the need to end or change affirmative action. A searching examination of interest in white working people requires a closer look at class and the social construction of race. The concept of class seems tame only in comparison to the volatility of the discourse on race. It only remains tame if it is understood through a simplistic notion of individual status and divorced from conflict and from consciousness of shared interest among oppressed people – in other words, from groups and relationships of power.
Are Internet advertisers trespassing on our computers? The question arises due to the increasing reliance upon cookie technology by Internet advertising firms as the primary means to match online ads with the specific interests and characteristics of individual Internet users.
It seems that whenever we visit a Web site, we are barraged with an increasing number of blinking banner advertisements hocking products and services of every imaginable sort. More than sixty billion advertisements per month are carefully selected for us and sent to our computers by a single Internet advertising firm, DoubleClick, Inc. In order to increase the effectiveness of the ads, DoubleClick deposits small text files or “cookies” on our computers in addition to sending us the banner advertisements. Like most other Internet advertisers, DoubleClick uses cookie files to collect and maintain detailed consumer profiles that reflect the online practices, preferences and other personal characteristics of each individual who surfs the Web. Based on those detailed consumer profiles, DoubleClick places on the pages of affiliated sites various banner advertisements of client companies that target the specific interests of individuals who happen to visit any DoubleClick affiliated site. Since its inception, DoubleClick alone has placed billions of targeted banner advertisements for client companies on sites across the Internet and some estimate that those ads have been viewed by a majority of all Internet users. To date, DoubleClick has compiled perhaps as many as 100 million user profiles in its databases and, with more than 11,000 affiliated commercial Web sites, DoubleClick remains the largest Internet advertising firm in the world.
Was Justice Scalia’s vote in the Boy Scouts case judicially straight? For years he has championed the view that a general conduct law not specifically directed at First Amendment interests does not implicate the First Amendment even if it happens to restrict First Amendment activity in some of its applications. Thus, when Oregon evenhandedly enforced its drug-control law against religious and nonreligious uses of peyote, Scalia maintained that the First Amendment was not implicated, and when Indiana evenhandedly enforced its public indecency law against expressive and nonexpressive public nudity, he took the same position. But in the Boy Scouts case, when New Jersey evenhandedly enforced its civil rights law against expressive as well as nonexpressive discrimination, Scalia not only thought that the law implicated the First Amendment, but he also provided the fifth vote to invalidate it as applied.
When the Court handed down its decision in Boy Scouts, one could fairly have wondered whether Scalia’s dissent was missing. Since the civil rights law at issue could have been characterized as a general law not directed at First Amendment interests, Scalia’s decision to join the majority opinion invalidating the law’s enforcement on First Amendment grounds appeared to conflict with the First Amendment philosophy he developed in Employment Division v. Smith, Barnes v. Glen Theatre, Inc., and similar cases. In what may be called his Smith jurisprudence, Scalia has maintained that, so far as the regulation of conduct is concerned, heightened judicial scrutiny should be reserved for circumstances in which a law specifically targets First Amendment interests for disfavored treatment. Otherwise, accommodation of those interests should ordinarily be left to the political process. Scalia did not seem to adhere to that philosophy in Boy Scouts.
Our law has no mind of its own. In times past, we have fancied law a product of the Deity, and we are still apt to depict it as something transcendent, or even broodingly omnipresent, if not divine. Some of our lawmakers maintain a tradition of donning garments befitting oracles when they utter their pronouncements. Needless to say, the reality is that rules flow out of the pens of mortal persons beneath the impressive robes, persons who must bend their mental efforts to many complex problems and tasks, all competing for their attention.
Half a century ago, the late Herbert Simon developed the theory of “bounded rationality” in connection with human decisionmaking. His insight was that the cognitive resources (like other resources) of human beings are finite and, accordingly, must be rationed. Whether consciously or unconsciously, we all have to make hard choices about how to allocate our intellectual energies. We cope with cognitive deficits, Simon and his students elaborated, in a variety of ways—for example, by searching selectively through the exponential ramifications of our analysis; by settling on decisions that we find sufficiently good, even if not necessarily best; and by developing mental short-cuts (dubbed heuristics) to simplify cognitive tasks, thereby allowing us to arrive at decisions in a more frugal manner.
As Russia and other formerly socialist states construct market economies, the appearance of strong securities markets remains an unfulfilled expectation. Notwithstanding broad privatization of state-owned enterprises and the elimination of industrial subsidies – essential precursors to demand for capital-raising securities markets – stock markets in Central and Eastern Europe remain illiquid, inefficient, and unreliable.
Strong securities markets do not, it seems, neatly follow from the welfare-maximizing behavior of individuals and institutions. Nor can the appearance of securities markets be effectively dictated by government decree. Post-communist securities market transition therefore presents a puzzle: Do markets emerge, or must they be created?
From Volume 76, Number 2 (January 2003) This Article discusses a survey on limited liability companies (LLCs) to […]
New crimes require new thinking about regulation. Because of computerization and globalization, today’s world faces new crimes and new ways of committing old crimes. Because of the interconnectedness of our global financial markets, this evolving criminal activity has unprecedented power to wreak havoc on every aspect of modern life. Law enforcement has no choice but to respond effectively.
One aspect of this new thinking is revising our concept of crime. Complex, economic wrongdoing is difficult to categorize as criminal primarily because it is enormously difficult to prove the high level of mens rea traditionally and appropriately required in criminal law. Proving this requisite mental state by the heightened burden required in criminal cases is even more difficult. Moreover, even when proof of criminal intent beyond a reasonable doubt is possible, conducting the investigation and proving a case by these standards is so expensive and time-intensive for both the executive and judicial branches that the costs often outweigh any benefit achieved. Lastly, imposing the criminal sanction of imprisonment on defendants whose wrongdoing, however destructive to society, may be malum prohibitum, is morally and practically questionable for a criminal justice system and is often economically inefficient.
Mediation—the process through which a third party neutral assists parties in reaching their own agreement—has achieved a prominence in our legal system that belies its youth. Earlier in the twentieth century, the use of mediation was limited almost entirely to small disputes (which did not justify the expense of litigation) and labor disputes (which required quick resolution in order to avoid costly strikes and shutdowns.) By contrast, mediation today is touted for disputes of all sizes and in all areas of the law, including probate, family, commercial lending and business, criminal, employment discrimination, environmental, legal malpractice, medical malpractice, and maritime law. Indeed, such is the enthusiasm for mediation, that one is hard pressed to find a legal area in which mediation is not actively encouraged. Despite such broad encouragement, its success varies widely in different fields of law. While in some areas of law it has achieved dominance, in others its development has been far slower. Two areas where this disparity is particularly puzzling are divorce and will contests.
In 1976, Professor Hans A. Linde published his pathbreaking paper, Due Process of Lawmaking. That article focused attention on a subject of subtlety and importance: To what extent should the processes by which laws are enacted affect their validity under seemingly substantive constitutional provisions like the First Amendment and the Equal Protection Clause?
In response to the September 11, 2001 terrorist attacks, the chorus of those arguing that international law cannot serve as an effective tool in the fight against terrorism has grown. In fact, one might say that September 11 has swelled the ranks of international relations realists, who view international law primarily as a cover for strategic interests and thereby as lacking any independent bite. According to this view, for the United States to comply with the letter of international law would be to don a straight-jacket that would hamper efforts to protect national and international security. Instead, because of the serious nature of the threat, ordinary rules should be bent, if acknowledged at all. This type of thinking has even spilled over into domestic law. Anyone who harps too much on the need for law at best is naive and at worst aids and abets terrorists.
This resurgent realism with respect to international law has taken several forms. Some have argued that the United States need not pay overly precise attention to international law in its military response to the attacks. Others have suggested that the detention of captured terrorism suspects is not, or should not be, governed by international law. And still others have suggested that the United States need not comply with the principles established under international law in prosecuting individual terrorists.