Recent UW Law Faculty Scholarship: Standing for Elections in State Courts; White-on-Black Crime: Revisiting the Convict Leasing Narrative; Function Versus Consequence in Restraint of Trade Analysis; and Judicial Biography of Australian Justice, Sir Gerard Brennan Book Review

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

Election-related litigation is soaring. Litigants regularly challenge every aspect of an election cycle, from who can vote to how votes are cast and counted to the certification of results. Courts have thrown out many of these lawsuits on standing grounds. Given the requirements of traditional federal standing doctrine—including the requirement of individualized injury rather than generalized grievances—these dismissals are at least plausible in federal court.

But most election-related lawsuits today are filed in state court, where standing doctrine is and should be different. State courts are not bound by Article III of the U.S. Constitution, have constitutional commitments to democracy and open courts, and typically have more flexible justiciability doctrines. This Essay urges state courts to build on that foundation through a presumptively permissive approach to election standing. State courts fulfill their judicial role by redressing rather than avoiding threats to state-level democracy. And deciding election-related lawsuits on the merits serves important functions of stability, certainty, and finality, as well as confidence in election outcomes.

To be sure, the surge in election-related litigation is suboptimal, and some share of the lawsuits are meritless or brought in bad faith. Our argument is simply that standing doctrine is not the best tool for rejecting these lawsuits. The Essay describes other techniques that courts can use to deal with abusive or burdensome litigation without undermining the openness that is foundational to state judicial systems.

Between 1880 and 1915, the Southern criminal legal system enslaved and re-enslaved legally emancipated Black persons. Under the conventional account of this period, the law facilitated and legitimatized these practices, however odious and racially discriminatory. This view—one that critiques as it accepts the legality of the system—provides an explanation for a significant number of cases in which a Black person was convicted and sent to forced labor.

And yet, there is growing evidence that many convictions were not facilitated by law but rather the result of criminal conspiracies to traffic Black victims. County-level arrest data indicates “convictions” occurred in lockstep with the labor demands of businesses that contracted with local state actors. Numerous personal accounts from victims and their families indicate that arrests occurred in the absence of any criminal suspicion. This empirical data suggests many Black “convicts” were instead victims of human trafficking. Because completing these White-on-Black crimes required coordination among multiple parties, a criminal conspiracy was formed that implicated White participants in kidnapping, false imprisonment, perjury, peonage, reckless endangerment, and reckless homicide.

This Essay examines archival evidence that suggests the criminal trafficking of Black men was a common, if not widespread, practice between 1880 to 1915. Under this alternative view the term “convict leasing” is over-inclusive and mislabels these victims of human trafficking. Under the alternative view the historical Black crime rate is not only inflated but fabricated; conversely, the historical White crime rate omits a significant amount of criminal activity. This alternative view centers the criminal conduct of White beneficiaries, inviting a close accounting of their crimes and ill-gotten gains.

The conventional interpretation of the Sherman Act’s prohibition of agreements in restraint of trade is, at best, ambiguous and uncertain. Conduct such as price fixing among competitors is per se illegal, except when it is not. Although the stated basis for the distinction is unclear, the function of the agreement embodying the restraint explains the apparently conflicting results. Regrettably, courts and commentators usually employ this conventional classification framework that focuses on desirability of the putative consequences of specific agreements. These categories have intuitive appeal but lack substantive coherence. In contrast, the functional approach focuses on the nature of the agreement in restraint of trade itself. The core of this approach is the distinction between naked and ancillary restraints. The policy goal is the preservation of the market process rather than a primary concern for the consequences of specific restraints on any measure of economic welfare. It is the thesis of this essay that the functional approach provides a better method to explain and predict the results of specific cases. It is more consistent with the language and meaning of the Sherman Act. It is also a better method for the analysis of restraints of trade. Because, like the conventional framework, the functional approach necessarily must employ presumptions, its normative merit is contingent on the scope and application of those presumptions.

This is a book review in interview format with me interviewing the book’s author, Jeffrey Fitzgerald. The book is a judicial biography of the famous and influential Australian jurist, Sir Gerard Brennan. Largely in chronological sequence, the book also identifies cross-cutting themes such as the evolution of his jurisprudence over time.

My questions are designed to highlight issues that have parallels in American law, thus introducing the book to American readers. A second focus is the interaction of law and society. Law and society issues pervade the book because it is a longitudinal account of the judge’s encounters with important legal issues that arose in a changing Australian society, his influence on that society, and the corresponding evolution of his jurisprudence. It is law as both a dependent and independent variable, a classic law and society formulation. The judge’s decisions and jurisprudence operate as “constitutive law,” reflecting both the influence of society on law and its influence on society while remaining relatively autonomous from both. Former U.S. Supreme Court Justice Steven Breyer’s recent exposition of judicial “pragmatism” is congruent with the jurisprudence of Justice Brennan.

The paper has eight parts with questions and answers as sub-parts: (1) the book and Brennan’s career; (2) constitutional law, federalism, separation of powers, judicial review; (3) civil rights, aboriginal people’s rights, racial discrimination, and other rights; (4) impact on other areas of law (e.g., torts, contracts, criminal law); (5) Brennan’s principles of jurisprudence (6) the High Court, its divisions, and politics (7) personal, family, and professional life; (8) conclusion: mutual influence of law and society.

For the full text of these works and additional scholarship from UW Law faculty and staff, visit the University of Wisconsin Law School Legal Studies Research Paper Series on SSRN. A free email subscription is available at the top right of the page.