LEGAL HISTORY eJOURNAL

"The Stereotyped Offender: Domestic Violence and the Failure of Intervention" Free Download
Penn State Law Review, Vol. 120, No. 2, pp. 337-420, 2015
U of Colorado Law Legal Studies Research Paper No. 16-7

CAROLYN B. RAMSEY, University of Colorado Law School
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Scholars and battered women’s advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, and gay men; abuse is as common in same-sex relationships as in their heterosexual counterparts. Failure to take such factors into account perpetuates a one-dimensional image of the batterer as a controlling, heterosexual, male villain — a stereotype that impedes efforts to coordinate effective responses to domestic violence and entrenches gendered hierarchies that affect men, as well as women.

This Article begins by placing the feminist paradigm of the batterer in historical context. Although feminists transformed the dialogue about domestic violence by locating it in patriarchy and gender inequality, the offender stereotype that the Battered Women’s Movement used to spur a vigorous state response and that still drives domestic violence policy shares some limitations with earlier paradigms of the wife beater — the hot-headed sinner in Puritan New England or the drunken brute of Temperance discourse. Like these earlier stereotypes, the image of the coercive, controlling male batterer is too one-dimensional and too closely tied to other sociopolitical agendas to yield a practical approach to prevent domestic violence and change the behavior of its perpetrators.

Drawing on historical, sociological, and psychological materials, as well as insights from masculinities studies, this Article suggests limits to our understanding of those who commit intimate-partner abuse and to the laws and policies — especially court-mandated batterer intervention programs (“BIPs?) — currently in place. It presents an original analysis of 46 sets of state and local standards for BIPs to show that, although these standards are starting to be more inclusive, they still tend to impose a “one-size-fits-all? formula designed for heterosexual male offenders. The “one-size-fits-all? approach ignores crucial differences — not only in intimate-partner violence committed by women, as opposed to men, and homosexuals, as opposed to heterosexuals — but also between heterosexual male offenders and the types of abuse they inflict. Recognizing these differences would facilitate the effective tailoring of BIPs to achieve long-term behavioral change in a variety of participants. The Article concludes by offering preliminary suggestions for transforming pro-feminist interventions to encourage accountability and rehabilitation and to reduce recidivism without stereotyping domestic violence offenders.

"When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now" Free Download

W. ROBERT THOMAS, Cleary Gottlieb Steen & Hamilton LLP, University of Michigan Philosophy Department, University of Michigan Law School
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The Supreme Court concluded in 1909 that a corporation, like an individual, can be held criminally responsible for its misconduct. Yet even now, corporate-criminal liability has yet to overcome the same skeptical argument it faced then — and, for that matter, for centuries prior. The skeptic’s challenge appears as simple as it is persistent: Lacking a mind distinct and independent from its constitutive stakeholders, a corporation cannot produce the sorts of intentional attitudes needed to satisfy the law’s mens rea component. In other words, a corporation is straightforwardly incapable of satisfying one of criminal law’s most basic requirements. Accordingly, to the skeptic the very idea of corporate-criminal liability is, and always has been, pure nonsense.

Though it presents as a simple, common-sense challenge to a corporation’s ability to intend — criminally or otherwise — unpacking the skeptic’s critique quickly implicates profound considerations regarding the nature of personhood and proper methods of attribution. Animating the dispute between skeptics and proponents of corporate-criminal liability is a disagreement over how to evaluate personhood, and further how one’s conception of personhood licenses attributions of actions, attitudes, and ultimately responsibility to the entity in question. This brand of disagreement is nothing new: These themes recur throughout Western thought and extend far beyond corporate law, from Plato’s Phaedo to Boethius and Bartolus of Sassoferato, from Thomas Hobbes to John Locke. Given the intellectual lineage behind what is otherwise an ordinary policy disagreement, perhaps it should not be terribly surprising that skepticism about corporate-criminal liability was never put to rest.

I don’t expect that we can break this conceptual stalemate all at once, if at all, to solve the challenge facing corporate crime. More to the point, we don’t need to. As it turns out, in taking up this very dispute at the turn of the 20th century, courts and legislature sided with the proponents of corporate crime in a way that the skeptic cannot, or at least should not want to, unwind. The proponents of corporate-criminal liability did not just win the policy fight; they did so in a way that rendered the skeptic’s position incompatible with broader theoretical commitments that are now instrumental to the modern corporation.

This Article offers two contributions to the debate over corporate-criminal liability: one conceptual, and one practical. First, the same argument embraced by today’s skeptics was tried but rejected in the late 1800s, when the practice of holding corporations responsible first developed. Courts previously receptive to the skeptic’s reasoning abandoned the view — and more importantly, the relationship between personhood and attribution underwriting it — as increasingly untenable amidst a changing economic environment in which commercial corporations transformed from tiny, narrowly constrained, quasi-state entities to sprawling, sophisticated, dominant participants in the national marketplace. Meanwhile, the gradual embrace of corporate liability, both in tort and crime, is intimately connected to the simultaneous demotion of corporate law as a regulatory tool. The turn towards corporate-criminal liability thus reflects a broader abandonment both of a long-dominant conception of personhood and of an approach to corporate regulation rendered ineffective by the development of what has become the basis for our modern corporate law. In a slogan, corporations today are persons under the criminal law not because they have always been eligible, but rather because they became eligible.

Second, a clear theoretical understanding of how and why courts first held corporations criminally responsible has profound consequences for how and why we continue to hold them responsible today. Most directly, recognizing the conditions under which corporations became persons for the purposes of criminal law removes from contemporary debates one complaint with modern practice, and does so without having to resolve some deep metaphysical truth about the ultimate nature of personhood. Today’s skeptic of corporate capacities presupposes an outdated premise about how capacities should be attributed to a person, the abandonment of which is pivotal to creating and maintaining modern corporate law and today’s commercial corporation. Taking seriously the skeptic’s position, on this discovery, threatens to undermine the conceptual foundation integral to a regulatory framework making commercial corporations what they are today. In addition, taking seriously courts’ actual reasoning in holding corporations criminally responsible unearths both a method and rationale for continuing to do so, which is rooted in a constellation of fairness considerations towards individuals that, although mostly lost to history, nevertheless applies more strongly today than ever before. Commitment to this qualified anti-discrimination norm applies at least as powerfully today as it did a century ago: Far from being a once-excusably incoherent, now-superfluous practice, corporate-criminal liability has as much reason to exist today as it did upon inception.

"The Search for Authorization: Three Eras of the President's National Security Power" Free Download
Cambridge Companion to the United States Constitution, Forthcoming

ANDREW KENT, Fordham University School of Law
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JULIAN DAVIS MORTENSON, University of Michigan Law School
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The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims of direct constitutional authorization were strikingly modest, and their requests for (and compliance with the terms of) specific statutory and judicial instructions were strikingly precise.

Second, the Civil War. While the authorization principle still dominated as an organizing concept, the executive branch began to invoke very different sources of authority in the face of existential crisis. During the early republic, Presidents had sought national security authorization primarily in the contemporaneous acts of a then-sitting Congress. The Civil War period, by contrast, saw a dramatically increased tendency for the executive branch to respond by seeking authorization in the century-old terms of the Constitution. Predictably, these far more assertive claims triggered severe constitutional controversy.

By the end of the Cold War, the third period discussed here, that constitutional pressure had been alleviated. Essentially, the solution has been for Congress -- drawing on the legacy of the New Deal, World War II and the Cold War alike -- to enact a broad set of permanent and interlocking ex ante statutory authorizations, the collective effect of which is to charge the President with taking virtually any national security action that seems needful. Combined with aggressive statutory interpretation and a large standing military, these statutes have enabled presidents to take an extraordinarily wide range of significant national security measures without seeking particularized, contemporaneous authorization from any other constitutional actor.

The upshot is a constitutional arrangement that relies on remarkably open-ended statutory authorization to mitigate anxieties about both power and constraint -- about the risks of a disempowered presidency in a dangerous world, but also about the risks of letting presidents rely on abstract constitutional text as the sole basis for violent action. While these authorizations don’t purport to constrain the executive branch with anything like the specificity of statutory regimes in earlier eras, their nature as legislative enactments entails a more meaningful possibility of authoritative supervision and even revision via subsequent democratic enactment than the Constitution ever could.

"Framing Legal History: Competing Western Interpretations of Soviet Law" Free Download
Max Planck Institute for European Legal History Research Paper Series No. 2016-07

DOVILE SAGATIENE, Independent
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The article deals with the history of studying Soviet law in the West and presents different interpretations of Soviet law in English speaking literature in the last century.

"Power Enumeration and the Silences of Constitutional Federalism" Free Download
International Symposium on Constitutional Silence, Trinity College Dublin, August 31-September 1, 2016.

LAURENCE CLAUS, University of San Diego School of Law
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Enumerating power by subject is a familiar feature of federal constitutions that aspire to apportion power among governments. Long-serving federal constitutions seem to say a lot more about how power to govern their communities should be distributed among their governments than about how those governments should treat each other. Yet those texts come no closer to supplying actual answers to disputes about power distribution than they do to disputes about institutional independence. Power enumeration is indeterminate not merely because subjects of power are abstract, but because federal constitutions are silent about aboutness. Federal drafting conventions that resorted to the judiciary to enforce power enumeration seemed to assume that the range of rationally conceivable ways to decide whether laws are inside or outside specified subjects of power (the range of rationally conceivable tests of aboutness) would generally yield the same answers. The assumption is false; laws do not have single subjects. Laws are almost always susceptible of more than one characterization, almost always about more than one thing. Power enumeration defaults to constitutional dispute resolvers an open discretion to decide what to make of it, and an adjudicative necessity to develop a law of aboutness. In deciding disputes about power distribution, as surely as in deciding disputes about intergovernmental independence, constitutional courts have unavoidably responded to constitutional silence with court-created core constitutional law. That law of characterization has sometimes deferred to rational legislative judgment, and sometimes not.

Power enumeration was pioneered at the United States Constitution’s Philadelphia drafting convention against the wishes of key nationalist proponents of the Virginia Plan. Power enumeration was an initiative of localist delegates, who relied on a precedent that proved a poor fit for the compromise system that in fact emerged. Their precedent was the specification of subjects in treaties, and in particular the subject specification in the then-operative Articles of Confederation. Power distribution under the Articles was policed by the member states themselves, through their direct control of Congress. Under the localists’ New Jersey Plan, that would have stayed true, and required no judicial enforcement. The Connecticut Compromise maintained this localist vision by constituting the Senate as a true states’ house that resembled the existing Confederation Congress. Even after losing the final vote on the compromise, nationalist delegates bitterly opposed this outcome, until they realized that through a subtle and carefully-timed amendment they could make equal state representation in the Senate about the vocational interests of small-state political leaders rather than about preserving a federal balance. That amendment, which has received little analysis in the leading historical scholarship, turned the Senate back into the independent, elite institution that nationalists had wanted all along and stopped the Senate from becoming a reliable political safeguard of federalism. Immediately thereafter, the convention referred the task of enumerating Congress’s powers to a committee of detail. Edmund Randolph’s preliminary draft of the committee’s enumeration explicitly linked power enumeration to an arbitral role for the Supreme Court. Having adopted the New Jersey Plan’s vision of enumerated national powers but discarded that plan’s vision of a reliable political mechanism to keep Congress within those powers, the convention backed into depending on the courts to make power enumeration meaningful. Late in the convention’s life, delegates coalesced around explicitly committing to the Supreme Court jurisdiction to decide all cases arising under the Constitution.

Power enumeration affords constitutional courts adjudicative discretion that may be exercised to promote not only a federal balance, but individual rights too. Courts could read down constitutional delegations to legislatures so as not to reach valued liberties and not to permit invidious distinctions, much as some common law courts read down statutory delegations to executives. In this way, courts could vindicate the Founding-era Federalist claim that, for example, a law about interstate commerce cannot also be about freedom of speech. A constitutional court could construct a whole implied bill of rights to limit a government of enumerated powers.

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About this eJournal

This eJournal distributes working and accepted paper abstracts on the history of law and legal institutions, as well as other historical inquiries that relate to current legal issues.

Editor: Reva B. Siegel, Yale University

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Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Advisory Board

Legal History eJournal

KWAME ANTHONY APPIAH
Princeton University - Department of Philosophy

PETER PRESTON BROOKS
Andrew W. Mellon Foundation Scholar, Center for Human Values, Peter Brooks, Princeton University

JUDITH BUTLER
University of California, Berkeley

KIMBERLE CRENSHAW
Columbia Law School

HENRY LOUIS GATES
Harvard University - Department of African-American Studies

THOMAS C. GREY
Nelson Bowman Sweitzer & Marie B. Sweitzer Professor of Law, Stanford Law School

DONNA HARAWAY
University of California, Santa Cruz - History of Consciousness

DUNCAN KENNEDY
Harvard Law School

MARGARET JANE RADIN
Henry King Ransom Professor of Law, University of Michigan Law School

REVA B. SIEGEL
Nicholas deB. Katzenbach Professor of Law, Yale University - Law School

KENDALL THOMAS
Columbia Law School

IRIS MARION YOUNG
University of Chicago, Deceased , University of Chicago - Department of Political Science