Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb, Supreme Court Practice
(11th ed. 2019).
Seventy years ago, Robert L. Stern and Eugene Gressman published the first edition of Supreme Court Practice, intended “to set forth in a single volume . . . as close as possible to everything, outside of the field of substantive law, that a lawyer would want to know in handling a case in the Supreme Court.” For generations, the treatise (known most commonly as “Stern and Gressman”) was an indispensable staple on every Supreme Court practitioner’s bookshelf (and, rumor has it, the bookshelves of more than a few Justices). The new and improved eleventh edition—published late last year and authored by the late Stephen M. Shapiro (to whom it is dedicated), Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb—drives home why: For an institution governed as much by formal and informal norms as it is by rules and statutes (for instance, the settled—but unwritten—understanding that it takes four Justices to grant a writ of certiorari), an accurate, accessible guide to both the written and unwritten rules of the road was an obvious necessity.
More than that, the authors of SCP were (and remain) in an open and behind-the-scenes dialogue with the Supreme Court Clerk’s Office and the Justices themselves. Questions raised in earlier editions have provoked formal and informal rule changes at the Court, and the editions, in turn, have attempted to keep up with formal and informal developments at One First Street. Indeed, a cursory search for citations to the treatise in reported Supreme Court opinions returns 90 hits, from 1957 to this summer. Simply put, SCP has become more than just a practitioner’s guide; it has become a font of institutional knowledge for an institution that is, notoriously, anything but transparent. And it is a one-stop shop for those trying to figure out all kinds of arcane but potentially significant historical tidbits—such as the last time a Justice heard oral argument in chambers (“apparently” in 1980). In that sense, SCPhas become a necessity for students and scholars of the Court as well. Continue reading "Bringing the Supreme Court Out of the Shadows"
In Regulating Mass Prosecution, Irene Joe seeks to shift the framework for assessing the causes of and solutions to mass incarceration, by spotlighting the role of prosecutors and their ethical duties to maintain fairness, loyalty, and competence. The core thrust of Joe’s argument is that prosecutors should be understood to have ethical limits on the pursuit of charges against defendants based on the systemic impact of charging decisions in producing public defender case overload. Moving beyond well-rehearsed arguments about the prosecutor’s duty to seek “justice,” Joe adopts a systematic ethical approach, focusing on the “role that the prosecutor plays in creating” the caseload crisis (P. 1183). She thereby makes a novel link between the ethics of prosecution and that of public defense, illuminating the “cumulative effect that . . . discretionary charging decisions have on the public defender’s ability to provide ethical and professional representation.” (P. 1184.) Having made this link, she then turns to the ethics rules as “a sword and a shield for reformist prosecutors to use in addressing the caseload crisis in indigent defense.” (P. 1184.)
In her ethics analysis, Joe is mindful of the deeply complex nature of the prosecutor’s charging decision: an exercise of discretion in which the prosecutor determines to pursue charges supported by probable cause. As Joe points out, in making this decision, a prosecutor is generally motivated to act by the duty to advance the interests of justice, but other factors sometimes creep in, such as implicit bias or the prosecutor’s self-interest in achieving a high “win” rate or currying favor with the judge. Where Joe fundamentally departs from convention is by showing how individual charging decisions permit prosecutors to shape “the size and scope of the criminal justice system,” thereby placing the public defender in a “reactive” posture, unable to adequately control his or her caseload—and thus undermining defendants’ access to justice. Joe recognizes, of course, that prosecutors do not deal exclusively with public defenders, whose work focuses on the representation of indigent defendants constitutionally entitled to counsel. What Joe wants us to appreciate is that prosecutorial discretion, by affecting the aggregate number of cases in the system, has particular impacts on the caseloads of public defenders, who must take cases assigned to them in this expanding system and are heavily overburdened. Continue reading "Are Prosecutors Ethically Responsible for Producing Defender Overload?"
Anyone who has done archival research has grappled with someone else’s file organization—are the papers you seek filed chronologically? By correspondent? By topic? By some other method inscrutable to the outsider? Does the filing system reflect the thinking of your research subject, of a secretary or clerk, or of a later archivist seeking to impose order on chaos? Finally, will the files actually contain the documents you’re hoping to find? Two recent articles take seriously the prosaic technologies of file storage, on the one hand, and file destruction, on the other, explicating the history of the tabbed file folder, the filing cabinet, and the paper shredder. These technologies are crucial to the contemporaneous operation of the bureaucratic process, and, of course, silently shape how we write history from those files.
Craig Robertson’s article, Granular Certainty, The Vertical Filing Cabinet, and the Transformation of Files, examines the role that the tabbed file folder and the file cabinet played in organizing and enabling modern corporate capitalism. As Robertson notes, scholars thinking about bureaucracy and influenced by Max Weber have long considered the development of the circulating case file to be a key moment in bureaucratization. Here, Robertson focuses on how the specific mechanics of the file storage process—office workers collecting loose documents in a file folder, securely storing the folder in a vertical cabinet, and later quickly finding that folder among dozens or hundreds of other ones—contributed not just to business efficiency but also to a conception of “information” as many discrete units rather than as a body of knowledge. Continue reading "What Do We Do with All of This Paper?"
Köpcke’s Legal Validity — The Fabric of Justice is an extremely rich and significant book which displays the excellent analytical and philosophical gifts of its author. It is, to my knowledge, the first book-length treatment of its subject, and contains much food for thought, and comfort, especially for hard and soft positivists. It is a manifesto for neither of those arguments, but its central topic, legal validity, is a preoccupation of both. But its treatment of its other central topic, justice, provides numerous arguments that are of keen interest for natural lawyers. The book, then, puts new ideas onto the table that promise to help break new ground in existing debates about the nature of law.
This brief review cannot hope to mention, even in passing, all of the many insights and lines of argument contained in the book, and, where necessary, simplifies points that are in fact very complex. Furthermore, since this is a review of what the reviewer likes about the book, it will for the most part refrain from intellectual criticism of some of the book’s arguments. I shall, however, raise parenthetical questions. (These are friendly questions. I do not suggest that these questions particularly disturb the author’s account, merely that they are raised by that account.) Continue reading "Brief Notes on Validity and Justice"
Dev Saif Gangjee, Trade Marks and Innovation?
, in Trademark Law and Theory II: Reform of Trademark Law
(Edward Elgar), (forthcoming), available at SSRN
In his soon-to-be-published chapter Trade Marks and Innovation?, Dev Gangjee brings needed critical analysis to a growing body of recent research that focuses on the relationship between trademarks and innovation. As Gangjee notes, the claims of this research challenge traditional understandings about trademark law. The “stable consensus,” Gangjee describes, has been that “trade mark law had nothing to do with innovation, the ‘ordinary trade mark [having] no necessary relation to invention or discovery.’” But what if it does?
Trademark law has “nothing to do with innovation” in the sense that eligibility for trademark protection doesn’t consider the mark’s relation to innovation. Marks are eligible for trademark protection, as the Supreme Court held in 1879, because of their source-indicating capacities, not because of any “novelty, invention, discovery, or any work of the brain.” Indeed, the fact that trademark law protects only source indication traditionally has been used as justification for the potentially perpetual rights that a trademark bestows. Continue reading "Innovating Trademark Theory"
In 2020, the World Bank published the 17th annual Doing Business Report (DBR), openly tying it to salutary reforms in the 190 nations the report evaluates across a range of regulatory arenas. Academic inspiration for the DBR is routinely linked to the “legal origins” argument which classically claimed that countries with common law legal heritage perform better economically—most acutely by favoring creditors and minority corporate shareholders. Together, the DBR and legal origins scholarship (LOS) have enjoyed a mutually-reinforcing success leading to thousands of academic citations and numerous induced reforms across the globe.
Yet, the success of the DBR/LOS juggernaut is matched by comparative law scholars’ equally vigorous critiques of its systemic deficiencies. New iterations of such rejoinders are recurrently juxtaposed with comparative law scholars’ longstanding lament regarding the marginality of their perspectives in many international reform agendas. For all the intellectual energy devoted to this debate over the past two decades, Dan Puchniak and Umakanth Varottil’s Related Party Transactions in Commonwealth Asia now stands out as the clarion critique of the DBR/LOS approach. Continue reading "Intransigent Indices and the Laments of Comparative Law: Why Legal Origins Won’t Die"
Medha D. Makhlouf, Laboratories of Exclusion: Medicaid, Federalism & Immigrants
, 95 N.Y.U. L. Rev.
__ (2020), available at SSRN
The allocation of public health authority in the United States across more than 2,000 federal, state and local government departments has produced a decentralized, disjointed response to the novel coronavirus disease 2019 (COVID-19). The COVID-19 pandemic also lays bare the vast inequalities in health based on race, ethnicity, and income, and how limited access to health care for some can adversely impact the many. This has brought increased attention to our federalist form of government and the merits of dividing power in the health care arena between a national government and states. Broader health care reform debates about the Affordable Care Act, a public health insurance option, and single payor raise similar questions about federalism’s role in health policy.
Medha Makhlouf’s forthcoming article, Laboratories of Exclusion: Medicaid, Federalism & Immigrants, adds an important and timely contribution to this discussion by providing an in-depth study of federalism’s role in shaping state policies on immigrant eligibility for Medicaid. The article shows how Medicaid’s cooperative federalism structure has not only failed to produce one of the cited benefits of federalism ─ better policy outcomes from state experimentation and innovation ─ but has encouraged the opposite ─ policies that favor the exclusion of immigrants from Medicaid and weaken national health policy goals. Moreover, the article shows how federalism can frustrate national policies that seek greater health equity and even exacerbate existing health inequalities. Continue reading "Federalism and Health Care: Lessons from State Policies on Immigrants’ Eligibility for Medicaid"
B. Jessie Hill, The Geography of Abortion Rights
, _ Geo. L.J.
_ (forthcoming 2021), available at SSRN
In The Geography of Abortion Rights, Professor B. Jessie Hill provides a novel, timely mapping of the “geographic dimension of abortion restrictions.” (P. 4.) Some restrictions rely on borders to serve as actual barriers, such as laws that attempt to restrict adults from transporting young people across state lines for abortion services. The effects of other laws, which force clinics to close, fix the borders of “abortion deserts” around which patients travel hundreds of miles to reach the nearest provider. Still other laws, such as medically-unnecessary ultrasounds, trespass bodily borders by requiring “visual and narrative mapping of physical spaces within the woman’s body.” (P. 5.)
In all and more of these examples, Hill argues that “regulating place is a way of subtly drawing lines of social exclusion and inclusion and re-inscribing social inequality.” (P. 6.) By this, she suggests that states, under the guise of protecting a patient’s health and safety, use law to demarcate borders that marginalize abortion care. The effects are uneven and regional, and the burdens of inaccessible care fall hardest on people who already find complying with state restrictions costly and difficult. Continue reading "Borders as Burdens"
Fifteen years ago, U.S. legal scholarship treated central banks like the neglected stepchildren of bank regulation and administrative law: hardly anyone wrote about them, and no one who did not work for them seemed to care. The financial crisis that began in 2007 put the Federal Reserve, the Bank of England, and the European Central Bank in the middle of national and global crisis response strategies, and instantly made central banks the center of attention in a rich and fast-growing legal literature that continues to attract exciting new scholars.
Nonetheless, ceding central banks to economists for so long turned out to be costly: lawyers have spent much of the last decade fleshing out the underlying assumptions and basic terms of the debate, and deciding whether and how to assimilate economists’ theories of central banking into their own. The foundational question of distribution—how central banks’ monetary policy and financial stability activities distribute resources and allocate losses from crises among constituents—has lingered especially awkwardly over this area.
The slightly-stylized standard view associates distribution with fiscal policy, politics and legislatures. In this view, monetary and financial stability policies of the sort conducted by central banks do not distribute: they are for everyone at once, no one in particular, and best left to independent technocrats. This standard view is increasingly at odds with public perceptions of central banks as purveyors of bailouts for the few and peanuts for the rest. The disjunction can become a big political problem, freshly salient in the face of the multi-trillion-dollar response to the COVID-19 pandemic. The pandemic response again put central banks at the center, and took me back to Nadav Orian Peer’s pre-pandemic article situating the Federal Reserve at the intersection of political battles over corporate concentration, regional and sectoral development and, of course, money. Continue reading "Central Banks’ Distribution, Revisited"
Stephen Rushin & Roger Michalski, Police Funding
, 72 Fla. L. Rev.
For eight minutes and forty-six seconds, Derek Chauvin pinned George Floyd’s neck to the ground outside of the Minneapolis Cup Foods on Chicago Avenue. Floyd’s shocking death, captured on a bystander’s cellphone video, led to criminal charges against Chauvin and the three other officers involved in the arrest. Floyd’s death also catalyzed thousands of protests around the United States and the world, and to the rallying cry of “defund the police.” These three words are memorable, but what do they mean? It depends whom you ask. For some, “defund the police” means reallocating some of the non-criminal duties that have become the responsibility of the police–think of outreach to the homeless and the mentally ill–to other non-police community service providers. For others, it is less a literal command and more a call to reimagine the objectives of street policing. And for some, it is indeed about police abolition.
But if we take these calls seriously and literally, they aim to reduce police department budgets as a method of reform. Unlike close analyses of the Fourth Amendment or legislative responses, police budgets usually escape the attention of legal scholarship. But in Police Funding, Stephen Rushin and Roger Michalski have presciently raised this issue as a topic of serious study. Police reform advocates calling for “defunding the police” should pay attention to the important observations the authors raise in their timely article. And one of the article’s central arguments is especially relevant after George Floyd’s death: that adequate funding should be seen as a prerequisite for accountable, democratic, and professional policing. Continue reading "What If “Defunding The Police” Makes Policing Worse?"