That the Constitution ensures that private property will not be taken by the government except for a public use and then only with just compensation is one of those principles learned in high school civics class. But, what is this “property” covered by the Fifth Amendment? It is not defined in the Constitution; rather the Supreme Court has stated that the term finds its contours and limits in state law, not under the federal constitution, and then only that which has been recognized and affirmed over the ages by custom, state statutes and judicial pronouncements.
Legal theorists often say that property is about the power of exclusion, by an “owner,” that is, one who holds “title,” as acquired through various established ways—voluntary transfer, inheritance, adverse possession. There are, to be sure, respected alternative theories recognizing property “rights” which are not necessarily founded on “ownership”—such as personhood and expectations and reliance on government benefits. In a recent article, Professor Yxta Maya Murray, describes a novel theory of property held by residents of Boyle Heights, a Los Angeles neighborhood, which she calls the “Boyle Heights property jurisprudence” that appears grounded in their collective experiences in the community. Continue reading "“Takings” from the Community"
Tracy A. Thomas, Leveling Down Gender Equality, 42 Harv. Women’s L.J. 177 (2019).
Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.” Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.
Morales-Santana was decided in the second year of the Trump administration and in the wake of its anti-immigration policy. Born in 1962 in the Dominican Republic to an unwed American citizen father of Puerto Rican origin and a Dominican Republic citizen mother, the plaintiff Luis Morales-Santana had lived in the United States since he was thirteen. The INA’s requirement of derivative citizenship for children born overseas to one American citizen parent in effect at Morales-Santana’s birth adopted a gender- and marital-status-based distinction by setting a longer physical presence requirement for citizen fathers and shorter physical presence requirement for unwed citizen mothers. Morales-Santana was not qualified for citizenship because his father had failed to meet the INA’s physical presence requirement for unwed fathers by a matter of days, and was to be deported as a non-citizen with several convictions. His father, however, would have satisfied, if female, the lesser stringent requirement for unwed citizen mothers to transfer derivative citizenship. Morales-Santana claimed that the INA’s gender-based distinction was a violation of gender equality, and requested that the rule for unwed citizen mothers be applied to him and that he be granted American citizenship. Continue reading "Equality for Whom? The Curious Case of RBG’s Equality and Morales-Santana’s Nationality"
Corporate law has a short historical memory. One result is that conceptual battles that go nowhere get refought, as a look at much of the literature generated in the wake of Citizens United will confirm. There are a few historical classics in the academic literature though. The lead publication in this short stack is Harold Marsh’s Are Directors Trustees? Conflicts of Interest and Corporate Morality, published in The Business Lawyer in 1966. Marsh told a stark story about the decline of the duty of loyalty, which he said went from flat prohibition of self-dealing transactions in 1880 to a general permission subject to judicial fairness review in 1960. Norwood Beveridge challenged Marsh’s description of the early period in a couple of papers published in the 1990s, but the Marsh account has held its place.
Now comes LSE’s (London School of Economics) David Kershaw with a masterful comparative history of corporate fiduciary law in the United States and the United Kingdom, The Foundations of Anglo-American Corporate Fiduciary Law. (The book’s introduction is posted here.) Kershaw seconds Beveridge and dispatches Marsh in a splendid account. The comparison holds the key. Yes, the UK had a prohibition that could be relaxed with a shareholder vote, a prohibition that found its way into the law of a number of US states. But what worked in the UK proved dysfunctional in the US. The conceptual framework of UK corporation law came from partnership, while the US framework came from legislated incorporations. Where the UK had default rules, the US had mandates, with the result that the self-dealing prohibition really was a prohibition here where it was not in the UK. Meanwhile, many states never adopted it and, analogizing to trust law, let officers and directors contract with the company subject to approval by a disinterested director majority. Continue reading "Corporate Law as Law"
At last—an article that squarely confronts the unquestioned authority of nation states to exclude economic migrants, and that moves the discussion beyond the red cape of open borders. Tendayi Achiume deconstructs the stone foundations of sovereignty in her ambitious and thought-provoking article, Migration as Decolonization.
Above the fever pitch of international debate surrounding global migration, one truth seems unassailable: that it is the prerogative of the sovereign state to exclude economic migrants. Faced with this unbreachable barrier, the battle around immigration moves elsewhere, pitched instead around how broadly to define the categories of those privileged to cross international borders—which citizens, residents, workers, humanitarian refuge-seekers, among others. Separated from the sound and fury of this debate is a silence around when purely economic migrants—“those who enter the territory of a foreign state in order to pursue better life outcomes”—have any legal claim to cross borders.
Achiume’s thesis is that the process of decolonization, which is ensnared in inequitable neocolonial relationships, must continue through the right of individual self-determination through economic migration. This right has boundaries. It belongs to individuals from nations subjected to the inequity-producing rules and institutions of colonization, who seek to better themselves within nations that hold “colonial advantage” over the country from which the individual originates. The journey to this conclusion takes three moves. Continue reading "Crowd-Sourcing Decolonization"
Francis E. McGovern & William B. Rubenstein, The Negotiating Class: A Cooperative Approach to Class Actions Involving Large Stakeholders, Duke L. Sch. Pub. L. & Legal Theory Series No. 2019-41
(June 13, 2019), available at SSRN
A common criticism of modern academic legal writing is its lack of usefulness in the real world of practice. A common criticism of writing directed toward solving workaday legal problems is its lack of theoretical sophistication. Neither of these criticisms can be levied against the new paper by Francis McGovern, a Special Master in the National Prescription Opiate Litigation multidistrict litigation (MDL), and William Rubenstein, a consulting expert to the MDL court. The paper is dazzlingly conceived, and Judge Dan Polster, who is presiding over the Opiate MDL, has employed the proposal and its reasoning to find a solution to one of today’s most intractable mass torts.
The proposal harnesses Rule 23 to a new purpose: to create a class action designed specifically to negotiate a settlement. Today class actions are certified to litigate claims and, more controversially, to settle them. But this proposal is different. It forms a class around a specific settlement structure, in advance of negotiating the settlement itself; in effect, without knowing whether the defendants will settle or for how much, the class agrees about how the proceeds of a possible settlement will be distributed among class members. Class members have a right to opt out once the structure is known, so those dissatisfied with the proposed distribution plan may exit and the defendants may know in advance of negotiations what the binding effect of the settlement will be. Should a settlement be achieved, class members, who at this point will know what their share of the settlement will be, then vote to approve or reject the settlement, with approval requiring the favorable vote of a supermajority. Class members also retain rights to object to the settlement before the judge decides whether to approve it. Continue reading "The Negotiation Class Action"
Richard Abel is the most prolific, as well as the most eminent, scholar of legal professions. Among many other books, he has written a detailed and moving study of the handful of courageous South African lawyers who challenged the apartheid regime. He has unearthed documents from lawyer disciplinary proceedings to uncover new lessons about lawyer deviance. And he has now completed two massive volumes on the Bush and Obama Administration’s anti-terrorism policies in the wake of the 9/11 attacks, the legal means employed to carry them out, and the legal responses to them. Law’s Wars deals with detention of suspected terrorists at the Iraqi prison of Abu Ghraib and at Guantanamo Bay, interrogation, electronic surveillance, and law of war on the battlefields of Iraq and Afghanistan. Law’s Trials covers many of the legal proceedings resulting from counter-terrorist measures: criminal prosecutions in ordinary courts, military commissions, and courts-martial (of U.S. personnel), and the various legal challenges to all of the above, such as habeas corpus petitions, civil damages actions, and civil liberties complaints.
The books are intended to be comprehensive, and they are. The genre that they most resemble is that of reports of Truth Commissions established after mass atrocities to give a meticulous account of events, perpetrators, and victims, to ensure that a record is made and that collective memory of events is preserved as an instruction and warning to later generations. See, e.g., Report of the Chilean National Commission on Truth and Reconciliation. Those reports, however, are typically the product of multi-member bodies employing large research staffs. Rick Abel is just one tireless, persistent Recording Angel. His chapters relate every relevant incident—in every relevant detail—of the events he covers, including not only records of proceedings and official reports, but contemporary comments by administration officials, politicians, leading newspapers, academics, and NGOs. His prose is undramatic yet sharp and crisp; the sentences as lucid as pebbles dropped into a clear mountain stream. For the most part, he adopts the role of objective reporter, but in concluding sections to every chapter, he discloses his own analysis and his own judgments. Continue reading "Lawfare in the “War on Terror”"
In an era when refugees prize crossing American borders – and when political debates turn on whether to build a “beautiful wall” to stop them – we learn in Under the Starry Flag about a time that the United States lacked the power it has today to alter the citizenship of migrants. Lucy Salyer’s fine monograph tells a story of Irish emigration to the U.S. in British and American law and politics. We learn that the great migrations across the Atlantic in the nineteenth century occurred in something of a legal vacuum. Nobody was quite sure what the consequences of such migration would be. Even if migrants naturalized as American citizens, Britain and other European powers denied that their former subjects had severed their obligations to the homeland. If migrants returned to visit family, they were liable to arrest for failure to serve in the military, for example. If they returned and sought to foment rebellion, they were subject to prosecution for treason. Most people didn’t know this; others learned the hard way.
The Irish immigrants studied here were caught in the crosshairs. They already objected strenuously to the discrimination they suffered at the hands of American snobs (think, “no Irish need apply”) in the nineteenth century. They dreamed of sticking it to elite Bostonians and New Yorkers. But most of all, they hated the English. They became entangled in transatlantic diplomatic crises that they milked for publicity and personal celebrity. They were unlikely heroes, untutored in the many ways that their actions had crossed tacit boundaries and stirred already troubled waters. But they were stubborn, brave (for the most part), and idealistic. The reader is forced into grudging admiration. Continue reading "A Diplomatic Nightmare and the Growth of American Sovereignty"
The seminal scholarship of H.L.A. Hart still looms large over much of jurisprudence. There are countless commentaries, challenges, exegeses, celebrations, and elaborations on offer. For this reason, it takes an incisive mind to add to Hart’s account. That is precisely what Philip Pettit does. His recent article takes a careful look at one aspect of Hart’s Concept of Law that is often mentioned in passing, sometimes criticized, but never carefully retraced and fleshed out: his genealogy of law.
In his article, Social Norms and the Internal Point of View: An Elaboration of Hart’s Genealogy, Pettit takes on some of the lingering questions surrounding Hart’s genealogy. How do primary rules arise? Are they any different from customs, habits, or other forms of convergent behavior? What, exactly, constitutes the internal point of view? If one acts in conformance with a community out of fear for social sanctions, can one be said to occupy the internal point of view? Perhaps most importantly–what, exactly, does Hart’s origin story of law tell us about the distinctions between law and custom, norm and habit? Pettit takes us through each of these questions as he reconstructs a genealogical account of how pre-normative society (“Prenormitania”) could be imagined to have evolved into Hart’s pre-legal society (“Normitania”). This sheds new light onto Hart’s own genealogy, which of course takes Normitania as a given and focuses on how it develops into a legal society (“Lexitania”). Continue reading "The Internal Point of View Restored"
Courtney G. Joslin, Autonomy in the Family
, 66 UCLA L. Rev.
912 (2019), available at SSRN
What is the role of autonomy (choice) in American marriage law, and what should it be? This question is salient for topics like the proper treatment of premarital and marital agreements, but, as Courtney Joslin points out in her article, Autonomy in the Family, it also has clear importance for the proper treatment of non-marital cohabitants.
As Joslin reports, the basic contemporary approach to the legal treatment of cohabitation follows some variation of the 1976 California case of Marvin v. Marvin. That case authorized the enforcement of express and implied agreements between cohabitants, no longer treating all such agreements as unenforceable because they contradict public policy. However, as the author sums up, Marvin basically treated cohabitants as legal strangers, parties who can enter into agreements altering their rights and obligations to one another but are not required to do so. One justification offered for this approach centers on autonomy: because it is open to couples to marry, those who do not marry should be seen as having “chosen” to avoid the reciprocal duties that come with marriage, as well as the equitable sharing of property and the possible alimony claims that are available to spouses upon divorce, unless they agree otherwise. Continue reading "Family Choices"
We have long understood that people have a right to repair what they own, but this right to repair is under siege. A new article by Leah Chan Grinvald and Ofer Tur-Sinai explains how IP rules are inhibiting these repair rights and why laws protecting the right to repair are necessary and justifiable. As I explain below, authors Grinvald and Tur-Sinai describe the growing right to repair movement pushing for legislation to protect the right to repair and show how intellectual property laws should facilitate not interfere with consumers rights to repair what they own. The authors also propose a theoretical framework through which they analyze the intellectual property doctrine as enabling rather than inhibiting of consumer rights..
The right of repair problem is easy to identify and touches many aspects of everyday life. Our coffee machines break and, because certain components are protected by patent and copyright, this relatively simply machine cannot be fixed except by the manufacturer, who charges as much as the machine itself to replace the part. Automobile repairs performed only by “authorized dealers” preserve warranty agreements and are enforced through trademark law as well as patent law. These kinds of restrictions make the market for repairs tightly controlled and expensive, sometimes entirely foreclosed, pushing consumers to buy new products instead of fixing old ones. The restrictions benefit manufacturers and their business partners. But it hurts consumers and repair shops and contributes to substantial amounts of waste inhibiting efforts at reversing devasting climate change. Continue reading "Right of Repair in the Digital Economy"
The search for the precursors to contemporary mass incarceration in the U.S. has become one of the great legal, historical, and sociological debates of our times. Many of us have focused on two particular arcs of penal history in tracing the genealogy of mass incarceration. One is associated with the birth of the penitentiary and the police in the first third of the 19th century in the context of emerging capitalism (both slavery and free labor in the U.S.). From this perspective, mass incarceration has always been a part of the DNA of America’s form of racial capitalism. The other locates the genesis much closer to our own time in the political and economic crises of the late 20th century associated with the neoliberal transformation of the U.S. economy.
Laura Appleman’s article, Deviancy, Dependency and Disability, makes a convincing case for adding a third arc of history: one that focuses on the eugenic period of the early and mid 20th century as a crucial precursor for mass incarceration and that offers a comprehensive treatment of the eugenic influence on criminal justice policy and what she calls its “long tail.” Eugenics refers specifically to efforts to improve society by regulating births, but it also applies to a much broader range of policies influenced by core beliefs that many of the worst social problems facing America could be solved by segregating, sterilizing, or even eliminating the physically, mentally, and morally disabled. Appleman’s article builds on recent work of historians which has underscored the radical nature of America’s embrace of eugenic thinking and its enduring significance in fields like immigration, drug and alcohol policy, and criminal statistics. Continue reading "The Long Tail of Eugenics"