Indigenous Peoples, Liberal Democracies and Public Reasoning

Duncan Ivison’s Can Liberal States Accommodate Indigenous Peoples? opens with the following questions: “Can liberal democracy accommodate the claims of Indigenous peoples? More precisely: can it do so justly?” (P. 12.) Ivison’s text is a rigorous and elegant response to these questions and essential reading for all who grapple with the circumstances of Indigenous peoples in contexts of “settler colonialism.” (P. 13.)

In the first chapter, Ivison identifies two key features of this form of colonialism. First, it involves “seizure and control of territory” that is justified by reference to “ideologies of civilizational and racial superiority and the denigration of Indigenous political institutions, philosophies, cultural practices and ways of life.” (P. 13.) Second, this process of “political domination and dispossession of territory” is “ongoing” and not a mere remnant of history. (Pp. 13-14.) Continue reading "Indigenous Peoples, Liberal Democracies and Public Reasoning"

Bundle and Conquer

The lack of affordable housing in our nation’s most generative cities is an ongoing tragedy. The cause is hardly mysterious: incumbent residents—homeowners, sometimes joined by renters—artificially suppress housing supply by blocking development. The result reflects neither the verdict of free markets nor the outcome of democratic processes, but rather political and regulatory dynamics that are powerfully and systematically skewed against change.

In their new article, Professors Roderick Hills and David Schleicher dust off what might seem like just another wonky policy tool, the transferable development right (TDR), and repurpose it as a coalition-building device that can help unstack the political deck to facilitate development. Continue reading "Bundle and Conquer"

No Laughing Matter

Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Review 1423 (2019).

Few would mistake One First Street for a comedy club. Sure, it may be hard to get a ticket sometimes, but at least there’s no two-drink minimum once you get in. Am I right? Is this thing on?

But seriously, folks. For years now, some Supreme Court aficionados have taken a particular interest in oral argument humor. Jay Wexler’s @SCOTUSHUMOR Twitter account keeps regular stats on how often each Justice triggers [LAUGHTER] in an argument transcript. (He was on this beat before Twitter existed, in fact.) Wexler’s laughter rankings garnered a full Adam Liptak article in the New York Times, and Justice Breyer referred to them in a speech last Fall.

This all may seem like something on the lighter side of the Court-watching world, but it’s not immune from rigorous quantitative analysis. And that is exactly what Tonja Jacobi and Matthew Sag bring to bear in their fascinating article. They created a database of every argument transcript over a 63-year period, identifying more than 9000 incidents of laughter. They devised a method to account for the delay between a laughter-inducing event and the point at which “the laughter reaches the threshold of disruption that causes the court reporter to make a note of it.” (Comedy is all about timing, after all.) They deployed several approaches to the denominator problem, measuring laughter rates on a per-argument basis and as a function of each “speech event” and even the number of words spoken. And they cleansed the data of those instances where “laughter” lurks in less jovial words like “manslaughter.” Continue reading "No Laughing Matter"

Towards a Unified Theory of ADR

Andrew B. Mamo, Three Ways of Looking at Dispute Resolution, 54 Wake Forest L. Rev. 1399 (2019), available at SSRN.

Advocates of alternative dispute resolution (ADR) often talk about the “ADR Movement” as if it were…well…an actual movement. We know what the phrase means, or at least we think we do. Since the 1970s, the popularity of extra-judicial mechanisms for conflict resolution–arbitration, mediation, negotiation, and restorative justice–has risen sharply. Over the same period, these procedures have become highly professionalized areas of study and practice. But is there a coherent “ADR Movement,” with a capital “M,” based upon a unified legal philosophy?

Not so much. In his comprehensive article, Three Ways of Looking at Dispute Resolution, Andrew Mamo carefully unravels the divergent philosophical strains that have supported the expansion of ADR over the past half-century. He explains the history of ADR against the broader backdrop of American legal and political history. Continue reading "Towards a Unified Theory of ADR"

Reframing Rural Private Practice Work

Hannah Haksgaard, Rural Practice as Public Interest Work, 71 Maine L. Rev. 209 (2019).

The splendors of rural America outnumber the stalks of wheat that spill down the Great Plains, the time-worn, sleepy peaks of Appalachia, the saguaro cacti whose sunbaked resolve outlasts generations of western settlers. Indeed, approximately 97 percent of U.S. land is within rural counties, capturing wonders throughout this nation’s countryside. But while a large swatch of America preserves the pastoral, one aspect is noticeably absent from this bucolic ideal: lawyers.

In Rural Practice as Public Interest Work, Hannah Haksgaard first establishes that there is a profound lack of rural lawyers, especially when compared to the “glut of lawyers in urban areas.” (P. 213.) Such a dearth exacerbates rural residents’ inability to access justice and to satisfy crucial legal needs. Essentially, Haksgaard asserts, there is a need for every type of attorney in rural areas: prosecutors, public defenders, immigration attorneys, divorce lawyers, bankruptcy lawyers, trusts and estate lawyers, and many more. Continue reading "Reframing Rural Private Practice Work"

A Critical History of the Complicity of International Law

Despite ideological use of terms like “free market,” people are not free to leave capitalism: capitalism is socially compulsory. Ideologists of capitalism sometimes mask this reality by trying to render capitalism the entirety of our conceptual horizon, so that it becomes impossible to think outside of capitalism. When that happens, capitalism comes to be taken for granted rather than treated as a historically contingent and socially-imposed set of constraints. One of the things that history can do is to examine when capitalism arose and how it became compulsory. Rose Parfitt’s new book is precisely this kind of critical history.

This book centers on Italy’s invasion of Ethiopia in 1935 and the ways it has been understood in international law since the end of World War Two. The invasion has been typically treated as a failure of law, as Parfitt demonstrates in a survey of scholarship by historians and international law scholars. The League of Nations let the invasion happen, the typical account goes, and the League’s failure to act must inform the creation and practice of better international legal institutions. Parfitt argues, however, that the legal facilitation of Italy’s annexation of Ethiopia did not arise from particular qualities of the League but from elements of international law more broadly. The force of the argument is that present international law is not so fundamentally different from the League of Nations after all. As Parfitt underlines, the world has witnessed many invasions since the Ethiopian crisis, under what is ostensibly a very different organization of international law and set of institutions. The typical narrative of Italy’s invasion, Parfitt argues, has defended rather than prevented military actions, especially by the US and European countries against formerly colonized countries. Parfitt thus argues that there is far more continuity between the League of Nations era and more recent international law than the typical story admits. She further argues that claims to strong differences between the League and present institutions end up inadvertently offering rhetorical support to war. Continue reading "A Critical History of the Complicity of International Law"

The Impact of Ban-the-Box Measures

Dallan Flake, Do Ban-the-Box-Laws Really Work?, 104 Iowa L. Rev. 1079 (2019).

I haven’t taught the basic Employment Law survey course in a few years, so I was updating my class notes relating to the kinds of pre-employment screening measures that many employers use. The casebook had a note about so-called ban-the-box measures—state laws that require employers to remove questions about criminal histories from a job application. I decided to do a little research into the subject when – lo and behold – I stumbled across one of those articles that helps an instructor add some value to the class while simultaneously making a practical contribution to the scholarship in the field.

Do Ban-the-Box-Laws Really Work? by Dallen Flake takes a look at the practical effect of ban-the-box laws. The article begins with an overview of the rise in these types of measures in recent years and the different approaches that the measures take. The ban-the-box laws reflect a recognition of the difficulties that those with arrest and conviction records often face in seeking to find employment. Much like the Americans with Disabilities Act’s prohibition on disability-related inquiries at the pre-offer stage, ban-the-box measures delay the ability of employers to inquire about an applicant’s criminal history. As Flake explains, “The hope is that an employer will be more likely to hire an ex-offender if it evaluates a candidate’s qualifications for the position before discovering the applicant’s criminal record.” (P. 1084.) Continue reading "The Impact of Ban-the-Box Measures"

Greenberg Got it Wrong: What Legal Practice Does and Does Not Reveal About Legal Content

There is a default theory of legal content that many legal positivists – and non-positivists – accept. It is that the legal contents of texts, or of authoritative pronouncements in general, are, or match, their full (that is, pragmatically-enriched) linguistic contents. Nine years ago, Mark Greenberg published an influential article called The Standard Picture and Its Discontents, attacking what he called the “Standard Picture” predominant among legal theorists. The aforementioned default theory of legal content is one of what Greenberg called the Standard Picture’s “prongs.” Among Greenberg’s objections to this theory, which is sometimes referred to as a “communicative content theory” of law, is that it cannot account for aspects of familiar legal practice.1 Dale Smith refers to this type of objection as a “practice-based objection.” (He notes that Greenberg is not the only legal theorist to raise a practice-based objection to the communicative content theory.) Practice-based objections, from Greenberg and others, depict an apparent gap between communicative content and legal content. This gap is especially troublesome for many theorists of statutory legal content. In particular, the gap poses a problem for anyone attracted to the idea that statutes are communications from the legislature and ought to be understood and applied the way ordinary communications are.

In this intriguing article, Smith is both friend to a communicative content theory and foe. He is a friend by demonstrating, again and again, how practice-based objections raised so far can be accommodated by such a theory. But he turns foe with his consideration of the practice of using what he refers to as “retrospectively operating modifier laws.” His thesis is that practice-based objections to date are not fatal to a communicative content theory of law, but that there is a practice-based objection that may be. Continue reading "Greenberg Got it Wrong: What Legal Practice Does and Does Not Reveal About Legal Content"

Fixing Informational Asymmetry Through Trademark Search

Amanda Levendowski, Trademarks as Surveillance Transparency, 36 Berkeley Tech. L. J. __ (forthcoming 2021), available at SSRN.

I call this paper a “Levendowski special.” It follows the signature format of much of Professor Levendowski’s prior work which, as in the latest article, recruits a legal tool typically aimed at one set of problems for the purpose of cleverly addressing a different set of problems. Her past articles harnessed copyright law to “fix artificial intelligence’s implicit bias” (2018) and to “combat revenge porn.” (2014). This paper draws on Professor Levendowski’s expertise working in private practice as a trademark attorney to address the problem of surveillance technology opacity. It is a primer on how to investigate trademark filings for hard-to-access information about surveillance technologies.

Levendowski laments and hopes to provide a partial solution to the informational asymmetry between law enforcement and the public about surveillance technologies. Private companies create surveillance technology – doorbell cameras, facial recognition tools, license plate readers – which are frequently used by law enforcement and embedded in communities. Community members are often unaware of the networks of surveillance until years later. Professor Levendowski explains that journalists and regulators often have difficulty investigating or tracking these surveillance tools because of weak or misaligned disclosure regimes. Continue reading "Fixing Informational Asymmetry Through Trademark Search"

Addressing the Tension between Discrimination Law and Pandemic Clinical Triage Protocols

  • Samuel R. Bagenstos, May Hospitals Withhold Ventilators from COVID-19 Patients with Pre-Existing Disabilities? Notes on the Law and Ethics of Disability-Based Medical Rationing, 130 Yale L. J. Forum __ (forthcoming, 2020), available at SSRN.
  • Deborah Hellman & Kate Nicholson, Rationing and Disability in a State of Crisis (Apr. 16, 2020), available at SSRN.

With the COVID-19 pandemic wreaking havoc in health care systems around the world, many jurisdictions have recently drafted or dusted off old clinical care triage protocols to facilitate decision-making when surges in infection rates overwhelm hospitals’ Intensive Care Units (ICUs). Not surprisingly, most of these policies reflect a utilitarian approach. Law and ethics policies generally endorse the notion that a pandemic or other large-scale threat to society requires efficient action by governments, which may involve a curtailing of individual rights. A growing chorus of academic commentators and human rights organizations have voiced concern that the focus on ‘saving the most lives’ embedded in triage policies, and particularly how these policies hope to achieve this, clashes with discrimination law, and particularly the rights of people with disabilities. Of a near-tsunami of blogs, op-eds, and commentaries in the legal, bioethics, and medical literature, forthcoming law articles by Samuel R. Bagenstos, and Deborah Hellman and Kate Nicholson stand out for how they discuss what the demands of equity imposed by discrimination law require, and how they each give us some idea of what accommodation in clinical triage protocol policies could look like.

Triage protocols are intended to solve the clash of commitments among physicians, when they are no longer able to give all patients the care they would normally feel duty-bound to provide. They introduce selection criteria for access to care (particularly ventilators, which I will focus on later), explicitly based on concepts of utility, fairness, proportionality, and reciprocity; and also decision-making procedures built around triage committees. Triage protocols deal with life and death decisions, or a least with who will receive an albeit limited chance of survival, since survival rates of those put on a ventilator for COVID19 appear troublingly low. The disability community has raised particular concerns about those protocols that mention specific disabilities as disqualifying conditions. These concerns flow from a historical experience with deprioritization and broad problems of equitable access to health care; concerns that have been heightened by the disproportionate impact of the pandemic. But even protocols claiming to be purely based on clinical prognoses and prediction of mortality have come under scrutiny because of their disproportionate impact on people with disabilities and other disadvantaged groups. Continue reading "Addressing the Tension between Discrimination Law and Pandemic Clinical Triage Protocols"

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