The Story of Parenthood

Douglas NeJaime, The Nature of Parenthood, 126 Yale L.J. 2260 (2017).

Professor Douglas NeJaime’s article, The Nature of Parenthood, unites concepts, ideas, bodies of law, and legal subjects that have largely been viewed in isolation—until now. The “first comprehensive account of contemporary regulation of parental recognition in the context of ART [alternative reproductive technologies],” (p. 2270) The Nature of Parenthood brings into focus the similarities, connections, and dynamic relationships between and among things that scholars often consider separately: ART law and the law of unwed fatherhood; non-biological mothers in opposite-sex relationships and non-biological fathers in same-sex relationships; intended genetic mothers and unwed biological fathers; family law and constitutional law; past and present. Equal parts legal history, doctrinal and constitutional analysis, and legal reform, The Nature of Parenthood is a beautifully executed and orchestrated work that above all else spins an absorbing narrative of parenthood in the United States—one that defies clear distinctions among beginning, middle, and end.

Professor NeJaime’s principal objectives in The Nature of Parenthood are threefold: (1) to show that modern parentage law has “carri[ed] forward” (p. 2289) the past in ways that continue to exclude traditionally marginalized groups and to underappreciate parenthood’s social dimension; (2) to argue that the “legacies of exclusion embedded” (p. 2268) in modern parentage law are in conflict with many of the norms that have emerged from recent constitutional law and family law jurisprudence; and (3) to suggest reforms to family law and constitutional law (relating mainly to parentage) that better align both bodies of law with the values that have materialized from each, in fits and starts, over the last fifty to sixty years. Continue reading "The Story of Parenthood"

Do Civil Rights Remedies Deter Police Misconduct?

John Rappaport, How Private Insurers Regulate Public Police, 130 Harv. L. Rev. 1539 (2017).

Constitutional tort remedies, like their common law counterparts, are presumed to deter future violations. But the inference of deterrence depends, of course, on a number of sub-inferences that may not hold. For example, deterrence may not obtain if the officer is indemnified and therefore does not feel the personal sting of a money judgment. In a recent article, Professor Joanna Schwartz showed that officer indemnity is, in fact, nearly universal. But maybe deterrence might still obtain because the police department, which has to foot the bill of the indemnification agreement, will push its officers to obey the law. In another article, however, Professor Schwartz showed that this might not happen because most departments carry liability insurance and the cost of indemnification will often simply disappear into a budget line item for insurance. If officers are indemnified, and departments are insured against any loss, how will constitutional tort actions have any deterrent force? Schwartz suggested at the end of her article that one avenue for deterrence might be found within the operation of the insurance agreements themselves and that further study was needed.

Professor John Rappaport’s fantastic new article, How Private Insurers Regulate Public Police, fills that need, and does so splendidly. To study an issue like this, one must dive deep into the insurance industry itself, and that is exactly what Rappaport did. His article is based on “interviews with over thirty insurance industry representatives, civil rights litigators, municipal attorneys, police chiefs, consultants and more.” There is so much to th­e article that any summary will fail to do it justice, but briefly, Rappaport charts a chain of incentives that works as follows: police departments have an incentive to obtain liability insurance because it reduces risk. Insurance companies, in turn, have an incentive to reduce claims, thus increasing their profits. To reduce claims, insurance companies often encourage (or even require) education, training, accreditation, and other conditions that tend to improve officer compliance with the law, thus reducing claims. Departments have an incentive to follow insurance companies’ guidance on these matters not just because they need and want liability insurance, but also because doing so may reduce the cost of premiums and deductibles. Continue reading "Do Civil Rights Remedies Deter Police Misconduct?"

Resisting Attempts to Control the “Hyper-Fertile”

Maya Manian, The Story of Madrigal v. Quilligan: Coerced Sterilization of Mexican-American Women, in Reproductive Rights and Justice Stories (forthcoming 2019), available at SSRN.

The meaning of “success” in litigation challenging inequalities is at the core of Professor Maya Manian’s essay about the extensive effort to end sterilization of Mexican-American women at the Los Angeles County + USC Medical Center in the 1970s.

In one sense, the case of Madrigal v. Quilligan is a great victory. The federal judge who first heard the case issued a preliminary injunction directed at making the Spanish language consent forms understandable to patients. This judge then signed off on a settlement agreement between the Madrigal plaintiffs and the California Department of Health, approving California’s enhanced sterilization consent requirements, which themselves had been the product of lobbying and media efforts by Chicana activists. The United States Department of Health issued new guidelines requiring bilingual consent forms and instituting a federal monitoring program. The case “galvanized Chicana feminist activism” in ways that made it clear that a broader notion of “reproductive justice” was necessary: it should not be limited to the emphasis by white feminists on abortion and contraception but must also include abusive practices intended to limit reproduction by women of color and impoverished women. Continue reading "Resisting Attempts to Control the “Hyper-Fertile”"

Power-Lest it Should Be Forgotten

Yik Chan Chin and Changfeng Chen, Internet Governance: Exploration of Power Relationship1 Chinese Law eJournal 34 (2018).

There is a relatively new SSRN source I have found to be very useful: the Chinese Law e-Journal sponsored by the University of Hong Kong Faculty of Law (edited by Fu Hualing and Shitong Qiao, and thus referred to as Fu and Qiao, which appropriately might be translated as a “happy or blessed bridging”). This source is very broad with regard to the subjects it covers—many among them relating to Technology Law—and provides a valuable insight into how mainly but not exclusively Chinese researchers view developments in China and in the world.

Internet Governance: Exploration of Power Relationship, by Yik Chan Chin and Changfeng Chen, is included in this e-Journal, and was presented at the 2017 Giganet Symposium in Geneva in December last year. That symposium was held back to back (“Day Zero”) with the annual meeting of the Internet Governance Forum (IGF), a United Nations forum that sees itself as perhaps the example of a multistakeholder platform for governance. The paper looks at the reality of Internet governance in China, in search for a mechanism that comes close to the IGF’s multistakeholder model. It provides both a valuable account of the realities of Internet governance in China, and a method for thinking about what constitutes power in blends of multistakeholder and directive governance. Continue reading "Power-Lest it Should Be Forgotten"

Arrest, Guilt, and the Difference Between the Two

Anna Roberts, Arrests as Guilt, __ Ala L. Rev. __ (forthcoming 2018), available at SSRN.

We live in a world in which the most detailed information is used to identify and make judgments about us. Facebook wants to know whether you like grass, or a certain kind of wrestling. Google may sell advertisements based on searches for “chest pain.” But in the criminal justice world, we can be sloppy, and dangerously so. As Anna Roberts explains in her forthcoming article, Arrests as Guilt, there is a marked tendency to interpret the eleven million arrests made every year as findings of guilt. That is, we see that someone is arrested, and we conclude that the person is guilty of a crime. That assumption, made too often by journalists, academics, and the public, creates a host of problems.

Most of us can readily recall examples when media outlets appear to equate arrests with guilt. “Perp walks”—deliberately stigmatizing public displays of an arrested person—are common for notorious criminal cases. (Journalists paid considerable attention to the books carried by disgraced movie producer Harvey Weinstein when he recently surrendered at New York Police headquarters, for instance.) But more serious treatments of arrests suffer from the same problem too. Continue reading "Arrest, Guilt, and the Difference Between the Two"

Hail to the Chief Justice

Jeffrey Rosen, William Howard Taft (2018).

A bellicose politician is on the warpath. His target: the judiciary. On the stump, he mocks individual judges by name and castigates their rulings. The courts, he declares, should not stand in the way of the needs of the public, much less the energetic executive committed to bringing those needs to fruition. Faced with a hostile Congress, a shortage of judges, and no traditional avenue for self-advocacy, the courts are poorly equipped to respond to these attacks on their own. They need a champion on the outside who can make a case against popular passion and for the rule of law.

The story feels conspicuously modern, but it dates back more than a century. The populist demagogue? Theodore Roosevelt. The champion of the judiciary and the rule of law? William Howard Taft. Continue reading "Hail to the Chief Justice"

How Much Do You Really Know About Fraud?

How did mail fraud come to be a powerful, all-purpose statutory tool for pursuing financial fraud in the United States? How does financial fraud resemble and differ from other kinds of commercial fraud—false advertising, misrepresenting the qualities of goods or land, or making impossible promises a seller never intends to keep? And is there, as there seems to be, a connection between novelty and innovation—new markets, new products, new frontiers—and fraud?

Ed Balleisen’s new book, Fraud: An American History from Barnum to Madoff, examines fraud, writ large in America from the end of the civil war through the turn of the millennium. As anyone who knows Balleisen’s work would expect, Fraud is exceptionally researched, observant, thoughtful, and rendered in charming prose. Fraud spans the familiar legal silos to provide a sweeping history of different varieties of fraud, and their regulation. This is useful, and the book works because of Balleisen’s disciplined focus on his core questions—how fraud manifests, how regulatory anti-fraud strategies have evolved across time, how and when industry self-regulation has intervened to control it, and how judicial institutions and processes have influenced anti-fraud efforts. The book examines a recurring toggle between interventionist and laissez-faire regulatory approaches; the venerable, if inconsistent and imperfect, tradition of industry self-regulation; and the seemingly perennial link between influence (or lack thereof), and punishment (or lack thereof). It makes a remarkable contribution to our understanding of how fraud and its regulation have evolved thus far, and the conditions out of which our current regulatory models developed. Continue reading "How Much Do You Really Know About Fraud?"

Data Driven Contract Interpretation: Discovering “Plain Meaning” Through Quantitative Methods

Stephen C. Mouritsen, Contract Interpretation with Corpus Linguistics (Nov. 4, 2017), available at SSRN.

Interpretation of contractual text may be the most important task courts perform in contract disputes. It is also the least predictable. Courts fall back on archaic canons of interpretation and employ poorly defined and spongy concepts for eliciting the meaning of words. They sometimes use textual approaches, and other times admit extrinsic evidence to understand the context. As a result, contract interpretation is erratic, and the resolution of contract disputes becomes complex and costly.

Despite murmurs of judicial skepticism and mountains of academic criticism, the most commonly used criterion in contract interpretation is the “Plain Meaning Rule”—the idea that if the language is clear and unambiguous courts should not consider any extrinsic evidence. But how to tell if a word is susceptible to a single plain meaning? Is it enough to look at dictionaries or to invoke judicial imagination to determine the unambiguous plain meaning?

In my own work and teachings, I have been advocating for a shift towards a data-driven search for plain meaning. My recent article with Lior Strahilevitz proposed one such empirical interpretive method: using large surveys. Now, a major new contribution to this timely enterprise of data-driven interpretation is being proposed by Stephen Mouritsen. In an original and provocative article, Mouritsen introduces a method of interpretation based on empirical linguistics, and demonstrates—quite dramatically—the improvements it delivers relative to existing methods. Continue reading "Data Driven Contract Interpretation: Discovering “Plain Meaning” Through Quantitative Methods"

Putting Public Administration Back into Administrative Law

Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 Mich. L. Rev. 1239 (2017).

Declaring the administrative state “unlawful”—in other words, as consisting of agency efforts to evade constitutional restrictions—is all the rage these days. Despite the fact that these assertions condemn administrative undertakings (both their substance and variety), they sometimes overlook both the legislation governing agency actions and the agency policies that they categorically disparage. In Internal Administrative Law, Professors Gillian Metzger and Kevin Stack assert that “internal administrative law” is lawful by reminding us of its roots in public administration, with an argument that is based in the Administrative Procedure Act (APA) and that considers specific examples of administrative guidance. Given that it investigates a complex and sometimes opaque administrative framework, this piece also contributes to scholarship exploring the so-called “black box” of agency activity. The thoughtful execution and wide-ranging implications of this article make it a highly worthwhile read, and of a piece with Metzger and Stack’s respective bodies of work.

Metzger and Stack offer a fascinating conceptual account of the internal directives through which agencies and presidents manage, guide, and coordinate the civil service.  In addition, the authors assert that these forms fulfill the criteria of “law,” based both on the original expectations of the APA and on their own consistency with legal norms. For this reason, the authors argue, the prevailing doctrinal emphasis on the external enforcement of public administration, in addition to the general assumption that a policy must create a system of private rights and obligations to be considered law, denies the fundamentally law-like nature of internal administrative law. Continue reading "Putting Public Administration Back into Administrative Law"

Substantiated Answers to Important Questions About Sexual Harassment

Jill D. Weinberg and Laura Beth Nielson, What is Sexual Harassment? An Empirical Study of Perceptions of Ordinary People and Judges, 36 St. Louis U. Pub. L. Rev. 39 (2017).

While it is always fun to comb my files of recent scholarship to find things that I “like lots,” it was particularly delightful to come upon What is Sexual Harassment? An Empirical Study of Perceptions of Ordinary People and Judges by Jill D. Weinberg and Laura Beth Nielson. For one thing, it’s all in the title. If the #metoo movement and public discourse surrounding sexual abuse and harassment in and outside of the workplace have indicated anything, it has been that the future of the way that the law and society will handle sexual harassment and abuse lies in how it is perceived, both by ordinary people and by judges. The ways in which laws are written, interpreted, and applied, as well as how mechanisms outside of the legal system will work to combat this problem, will be entirely dependent on how the problem is perceived. Moreover, there is no better way to explore this problem than with an empirical study that can substantiate the observations made and the conclusions reached.

This study was propelled, as its authors recite, “by a series of empirical and normative questions,” like, for example, whether the judiciary and regular people perceive sexual harassment the same way; and whether one’s experiences and background dictate one’s detection of sexual harassment, among others. The study brings us to a better and more refined understanding of the factors that predicate where people locate for themselves the line between lawful and unlawful workplace behavior. The resulting article reports on the results of the survey-based study that aims to coordinate one’s attitudes and perceptions with one’s identity as well as professional and social situations. The article provides more than the results of the study, though. It walks its reader through a literature review on the subject of how people come to discern unlawful sexual harassment, as delineated distinctly from behavior within the parameters of the law. It also lays out, in a fair amount of detail, the research methodology employed by the researchers, as well as the results of the study and their implications. Finally, the authors explore the possibility of broadening the concept and definition of sexual harassment legally, in light of the way in which it seems to be construed and discerned by most people. Continue reading "Substantiated Answers to Important Questions About Sexual Harassment"

The New Uniform Parentage Act (2017) and Inheritance Law

Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 Yale L. J. F. 589 (2018).

Parentage is central to our status-based system of inheritance. Over the past twenty years, we’ve seen tremendous changes in how courts and legislatures approach the question of just who is a parent. We generally use the same legal definition of parentage for both family law and inheritance law, a definition derived in many states from the Uniform Parentage Act (UPA). Thus, Professor Courtney Joslin’s new article, Nurturing Parenthood Through the UPA (2017), is particularly salient for trusts and estates scholars.

In Obergefell v. Hodges, the United States Supreme Court held that states must allow same-sex couples to marry.1 But that decision didn’t address the myriad corollary questions that arose from marriage equality. These included questions like whether the marital presumption of parentage granted to “husbands” also applied to female spouses who were not the genetic parent of a child. Or whether such a nongenetic female spouse had the right to have her name automatically listed on a birth certificate. Those issues were largely put to rest in a relatively unheralded case, Pavan v. Smith, which was decided after Obergefell.2 Professor Joslin notes that, “In June 2017, the Supreme Court held in Pavan that Arkansas’s refusal to list a woman on the birth certificate of a child born to her same-sex spouse was inconsistent with its prior declaration in Obergefell.” And in McLaughlin v. Jones ex rel. Cty. of Pima, “the Arizona Supreme Court explained, under Arizona’s marital presumption, husbands were recognized as parents even if they were not biological parents.3 After Obergefell and Pavan, the court continued, that rule could not ‘be restricted only to opposite-sex couples.’” Continue reading "The New Uniform Parentage Act (2017) and Inheritance Law"