Category Archives: TLR Vol. 95-5

Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City

By | TLR Vol. 95-5 | No Comments

At least since the early twentieth century, informal specialized prostitution courts have tried to double as social welfare agencies. For this reason, prostitution courts illustrate in particularly explicit ways how public welfare administration and criminal court administration share similar ideas and practices and how these ideas and practices reinvent themselves over time. Cohen’s Article traces three moments of prostitution court reform in New York City: the New York Women’s Court that opened in Manhattan in 1910, the Midtown Community Court that opened in Manhattan in 1993, and four new prostitution courts that opened in New York City in 2013. It examines how court reformers in each moment used informal procedure to promote social welfare, social control, and individual responsibility, and it ties each approach to changing conceptions of the American welfare state. Ultimately, the Article argues that the genealogy of prostitution courts illuminates for the present how court reformers are using the language of trauma to negotiate the welfare logics of today.

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Liberty in Loyalty: A Republican Theory of Fiduciary Law

By | TLR Vol. 95-5 | No Comments

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features. The normative foundations of fiduciary loyalty come into sharper focus when viewed through the lens of republican legal theory. Consistent with the republican tradition, the fiduciary duty of loyalty serves primarily to ensure that a fiduciary’s entrusted power does not compromise liberty by exposing her principal and beneficiaries to domination. The republican theory has significant advantages over previous theories of fiduciary law because it better explains and justifies the law’s traditional features, including the uncompromising requirements of fiduciary loyalty and the customary remedies of rescission, constructive trust, and disgorgement. Significantly, the republican theory arrives at a moment when American fiduciary law stands at a crossroads. In recent years, some politicians, judges, and legal scholars have worked to dismantle two central pillars of fiduciary loyalty: the categorical prohibition against unauthorized conflicts of interest and conflicts of duty (the no-conflict rule), and the requirement that fiduciaries relinquish unauthorized profits (the no-profit rule). The republican theory explains why these efforts to scale back the duty of loyalty should be resisted in the interest of safeguarding liberty.

Read More

How I Learned to Stop Worrying and Love Nudges

By | TLR Vol. 95-5 | No Comments

Rachlinski considers Cass R. Sunstein’s book—his most recent in a series on behavioral nudging—The Ethics of Influence: Government in the Age of Behavioral Science. Rachlinski views this entry by Sunstein as an effort to consolidate his responses to various ethical critiques of nudging, also known as “libertarian paternalism,” the core concept of which is to design environments in which people make choices so as to facilitate decisions that enhance well-being. The essence of the critiques levied against nudging is that “government should do more to educate its citizens to make well-informed choices, rather than simply structure the choice to guide them with a hidden benevolent hand.” This Book Review outlines such ethical critiques and considers Sunstein’s replies.

Read More

Is Mass Incarceration History?

By | TLR Vol. 95-5 | No Comments

Simon reviews Elizabeth Hinton’s book, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America, a study of federal crime policy from the Kennedy through Reagan Administrations that Simon dubs “the most telling example yet of this new history of the American carceral state.” Hinton draws on confidential memos and other materials from the National Archives and presidential libraries to “draw a far more precise picture than ever before of what national leaders believed they knew about crime and how they intended to act.” Simon finds that her account “confirms the centrality of political considerations to the shaping of mass incarceration urged by earlier studies, while giving us a much more detailed and pointed analysis of what those political considerations were.” The Book Review proceeds by examining the book’s major findings, before turning to Hinton’s historiographical contributions and her lessons to those who advocate for ending mass incarceration.

Read More

Criminal Convictions, and Those Who Are Still Left Behind

By | TLR Vol. 95-5 | No Comments

Crowell’s Note attempts to identify the problems created by discriminatory housing bars based on criminal convictions, the various reform efforts currently at work, and the potential inadequacies of the reforms based on the needs of those most at risk for recidivism. To that end, the Note begins by discussing the prevalence of housing discrimination in both the private and public housing sectors, before pulling from social science to demonstrate the effects of unstable housing or homelessness on individuals just released from jail or prison. The Note then outlinesthe various reform strategies that advocates are using to challenge these bars and discusses both the positive effects of these reforms and their failure to assist those most in need of relief, before finally attempting to identify potential solutions to bridge the gap between the limits of the ongoing reform efforts and the need to provide housing for individuals who have just been released back into society.

Read More

Damage Averaging—How the System Harms High-Value Claims

By | TLR Vol. 95-5 | No Comments

The disappearance of the American civil trial has paved the way for a new order of dispute resolution—one marked by alternatives such as arbitration, mediation, and, above all, settlement. Nowhere has that shift been seen more than in tort cases, where today less than 1% of all mass tort cases proceed to trial. As a consequence of the vast majority of mass tort cases being settled by agreement between the parties, allocation of the settlement proceeds has become a massive undertaking. When one or a small number of claimants settle with a defendant, it is relatively easy to determine how the proceeds of the settlement are to be split; it is far more difficult when a defendant establishes, for example, a $4.85 billion settlement fund for almost 50,000 claimants, as Merck & Co. did to settle nationwide multi-district litigation (MDL) over the drug Vioxx. As can be imagined, those claimants took Vioxx for various periods of time; had drastically diverse medical histories, employment opportunities, and family situations; and exhibited numerous other differences. To account for such factors, the individual settlement awards were based on the calculation of “points” pursuant to formulas, grids, and matrices. Such an allocation method, known as “damage averaging,” provides an efficient, objective, and equitable (both horizontally and vertically) system for apportioning settlement proceeds among claimants; however, it may inadequately compensate those claims which our legal system should value most—the high-value claims of the most seriously injured claimants.

In this Note, Kishinevsky further defines and explains damage averaging as well as investigates why high-value claims are likely undervalued under such a system, while, conversely, low-value claims are typically overvalued. He then explains why damage averaging use has greatly expanded in mass tort settlements and examine the benefits and negatives of a damage averaging allocation method, before discussing alternatives to damage averaging and presenting an argument for why damage averaging is the best current arrangement for the distribution of settlement proceeds. Finally, he recommends solutions to ensure that high-value claims are accurately valued—proposals that have the potential to reduce (or even eliminate) undervaluation of such claims and meaningfully improve the outcomes of damage-averaging apportionment.

Read More

Armed and Not Dangerous? A Mistaken Treatment of Firearms in Terry Analyses

By | TLR Vol. 95-5 | No Comments
Beginning with the Supreme Court’s decision in District of Columbia v. Heller in 2008, federal constitutional law has expanded to recognize constitutional protections for the individual possession of firearms. These new protections have profoundly affected Fourth Amendment law as well, as seen in the two-pronged analysis for conducting an investigatory stop pursuant to Terry v. Ohio. Particularly, police officers’ ability to use the first Terry prong to stop a person on suspicion of carrying an illegal firearm has been greatly weakened, and their ability to protect themselves from armed, suspected criminals using the second Terry prong has also been weakened, as the “blanket assumption” that those who carried firearms were dangerous has begun to crumble.

This Note analyzes the soundness of this trend towards treating “armed and dangerous” as two separate requirements in a Terry analysis. Wilkins’s main thesis is simple—that this trend is a horrible mistake. He argues that treating “armed and dangerous” as two separate requirements misinterprets the Supreme Court’s treatment of firearms and the “armed and dangerous” standard in Terry and other contexts, mistakenly uses state criminal law as a measure for dangerousness, and ignores the simple fact that guns are dangerous instruments used to kill people, including police officers.

Read More

Category Archives: TLR Vol. 95-5

Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City

By | TLR Vol. 95-5 | No Comments

At least since the early twentieth century, informal specialized prostitution courts have tried to double as social welfare agencies. For this reason, prostitution courts illustrate in particularly explicit ways how public welfare administration and criminal court administration share similar ideas and practices and how these ideas and practices reinvent themselves over time. Cohen’s Article traces three moments of prostitution court reform in New York City: the New York Women’s Court that opened in Manhattan in 1910, the Midtown Community Court that opened in Manhattan in 1993, and four new prostitution courts that opened in New York City in 2013. It examines how court reformers in each moment used informal procedure to promote social welfare, social control, and individual responsibility, and it ties each approach to changing conceptions of the American welfare state. Ultimately, the Article argues that the genealogy of prostitution courts illuminates for the present how court reformers are using the language of trauma to negotiate the welfare logics of today.

Read More

Liberty in Loyalty: A Republican Theory of Fiduciary Law

By | TLR Vol. 95-5 | No Comments

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features. The normative foundations of fiduciary loyalty come into sharper focus when viewed through the lens of republican legal theory. Consistent with the republican tradition, the fiduciary duty of loyalty serves primarily to ensure that a fiduciary’s entrusted power does not compromise liberty by exposing her principal and beneficiaries to domination. The republican theory has significant advantages over previous theories of fiduciary law because it better explains and justifies the law’s traditional features, including the uncompromising requirements of fiduciary loyalty and the customary remedies of rescission, constructive trust, and disgorgement. Significantly, the republican theory arrives at a moment when American fiduciary law stands at a crossroads. In recent years, some politicians, judges, and legal scholars have worked to dismantle two central pillars of fiduciary loyalty: the categorical prohibition against unauthorized conflicts of interest and conflicts of duty (the no-conflict rule), and the requirement that fiduciaries relinquish unauthorized profits (the no-profit rule). The republican theory explains why these efforts to scale back the duty of loyalty should be resisted in the interest of safeguarding liberty.

Read More

How I Learned to Stop Worrying and Love Nudges

By | TLR Vol. 95-5 | No Comments

Rachlinski considers Cass R. Sunstein’s book—his most recent in a series on behavioral nudging—The Ethics of Influence: Government in the Age of Behavioral Science. Rachlinski views this entry by Sunstein as an effort to consolidate his responses to various ethical critiques of nudging, also known as “libertarian paternalism,” the core concept of which is to design environments in which people make choices so as to facilitate decisions that enhance well-being. The essence of the critiques levied against nudging is that “government should do more to educate its citizens to make well-informed choices, rather than simply structure the choice to guide them with a hidden benevolent hand.” This Book Review outlines such ethical critiques and considers Sunstein’s replies.

Read More

Is Mass Incarceration History?

By | TLR Vol. 95-5 | No Comments

Simon reviews Elizabeth Hinton’s book, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America, a study of federal crime policy from the Kennedy through Reagan Administrations that Simon dubs “the most telling example yet of this new history of the American carceral state.” Hinton draws on confidential memos and other materials from the National Archives and presidential libraries to “draw a far more precise picture than ever before of what national leaders believed they knew about crime and how they intended to act.” Simon finds that her account “confirms the centrality of political considerations to the shaping of mass incarceration urged by earlier studies, while giving us a much more detailed and pointed analysis of what those political considerations were.” The Book Review proceeds by examining the book’s major findings, before turning to Hinton’s historiographical contributions and her lessons to those who advocate for ending mass incarceration.

Read More

Criminal Convictions, and Those Who Are Still Left Behind

By | TLR Vol. 95-5 | No Comments

Crowell’s Note attempts to identify the problems created by discriminatory housing bars based on criminal convictions, the various reform efforts currently at work, and the potential inadequacies of the reforms based on the needs of those most at risk for recidivism. To that end, the Note begins by discussing the prevalence of housing discrimination in both the private and public housing sectors, before pulling from social science to demonstrate the effects of unstable housing or homelessness on individuals just released from jail or prison. The Note then outlinesthe various reform strategies that advocates are using to challenge these bars and discusses both the positive effects of these reforms and their failure to assist those most in need of relief, before finally attempting to identify potential solutions to bridge the gap between the limits of the ongoing reform efforts and the need to provide housing for individuals who have just been released back into society.

Read More

Damage Averaging—How the System Harms High-Value Claims

By | TLR Vol. 95-5 | No Comments

The disappearance of the American civil trial has paved the way for a new order of dispute resolution—one marked by alternatives such as arbitration, mediation, and, above all, settlement. Nowhere has that shift been seen more than in tort cases, where today less than 1% of all mass tort cases proceed to trial. As a consequence of the vast majority of mass tort cases being settled by agreement between the parties, allocation of the settlement proceeds has become a massive undertaking. When one or a small number of claimants settle with a defendant, it is relatively easy to determine how the proceeds of the settlement are to be split; it is far more difficult when a defendant establishes, for example, a $4.85 billion settlement fund for almost 50,000 claimants, as Merck & Co. did to settle nationwide multi-district litigation (MDL) over the drug Vioxx. As can be imagined, those claimants took Vioxx for various periods of time; had drastically diverse medical histories, employment opportunities, and family situations; and exhibited numerous other differences. To account for such factors, the individual settlement awards were based on the calculation of “points” pursuant to formulas, grids, and matrices. Such an allocation method, known as “damage averaging,” provides an efficient, objective, and equitable (both horizontally and vertically) system for apportioning settlement proceeds among claimants; however, it may inadequately compensate those claims which our legal system should value most—the high-value claims of the most seriously injured claimants.

In this Note, Kishinevsky further defines and explains damage averaging as well as investigates why high-value claims are likely undervalued under such a system, while, conversely, low-value claims are typically overvalued. He then explains why damage averaging use has greatly expanded in mass tort settlements and examine the benefits and negatives of a damage averaging allocation method, before discussing alternatives to damage averaging and presenting an argument for why damage averaging is the best current arrangement for the distribution of settlement proceeds. Finally, he recommends solutions to ensure that high-value claims are accurately valued—proposals that have the potential to reduce (or even eliminate) undervaluation of such claims and meaningfully improve the outcomes of damage-averaging apportionment.

Read More

Armed and Not Dangerous? A Mistaken Treatment of Firearms in Terry Analyses

By | TLR Vol. 95-5 | No Comments
Beginning with the Supreme Court’s decision in District of Columbia v. Heller in 2008, federal constitutional law has expanded to recognize constitutional protections for the individual possession of firearms. These new protections have profoundly affected Fourth Amendment law as well, as seen in the two-pronged analysis for conducting an investigatory stop pursuant to Terry v. Ohio. Particularly, police officers’ ability to use the first Terry prong to stop a person on suspicion of carrying an illegal firearm has been greatly weakened, and their ability to protect themselves from armed, suspected criminals using the second Terry prong has also been weakened, as the “blanket assumption” that those who carried firearms were dangerous has begun to crumble.

This Note analyzes the soundness of this trend towards treating “armed and dangerous” as two separate requirements in a Terry analysis. Wilkins’s main thesis is simple—that this trend is a horrible mistake. He argues that treating “armed and dangerous” as two separate requirements misinterprets the Supreme Court’s treatment of firearms and the “armed and dangerous” standard in Terry and other contexts, mistakenly uses state criminal law as a measure for dangerousness, and ignores the simple fact that guns are dangerous instruments used to kill people, including police officers.

Read More