As readers may have heard, the National Conference of Bar Examiners (NCBE) recently approved the preliminary recommendations of its Testing Task Force and is committed to developing “the next generation of the bar exam.” What readers may not know, however, is that the NCBE is not alone in its endeavor to consider licensing requirements: regulators elsewhere in the world, including in Canada, are also examining the issue of admissions requirements and how they should evaluate lawyer competence. As the NCBE develops its “next generation” bar exam and as U.S. jurisdictions decide whether and how to change their admissions rules, stakeholders may find it thought-provoking to consider the excellent report that Jordan Furlong produced for the lawyer regulatory body in the province of Alberta, Canada. This report is entitled Lawyer Licensing and Competence in Alberta.
Similar to the preliminary recommendations recently adopted by the NCBE, and the reports on which the NCBE’s action was based, the Alberta Lawyer Licensing and Competence report examines what lawyer “competence” means, how it could be fostered and measured, and the proper role of the regulator. Although Lawyer Licensing and Competence was written for Canadian regulators, it provides insights that may prove useful to U.S. lawyer regulation stakeholders on issues related to lawyer competence, the role of a regulator, legal education, and the NCBE’s January 2021 decision to develop the next generation of the bar exam. Continue reading "Rethinking Admissions Requirements: It’s a Global Phenomenon"
I have no doubt that most Jotwell readers—particularly readers of its legal history section—remember sitting in their U.S. History class, learning the accepted narrative of “The Coming of the Civil War.” The Missouri Compromise. Check. The Mexican War. Check. The Wilmot Proviso. Check. The Compromise of 1850. Check. The Kansas-Nebraska Act. Check. The Dred Scott case. Double check for the audience of this review, I’d bet. The Lincoln-Douglas debates, Harpers Ferry, Lincoln’s election, Fort Sumter. Check, check, check, and check. Many of us enjoyed this story of the political and legal maneuvering that shaped the conflict between freedom and slavery. What our eighteen-year-old selves probably didn’t notice was that the story focused primarily on the federal government. We also probably assumed that freedom and slavery were the only two statuses available to Americans in the years leading up to the Civil War.
Kate Masur’s marvelous Until Justice Be Done shows us otherwise. Indeed, she recounts a very different series of events—stories of the fight for the rights of free Black Americans at the state and local level for the hundred years between the Revolutionary War and the end of Reconstruction. This “first civil rights movement” runs alongside the traditional story of sectionalism and slavery, intersecting with it and explaining it in ways that a myopic focus on the federal government and political conflict over slavery do not. Indeed, after reading Until Justice Be Done, the standard narrative seems thinner and less substantial than it once was. Knowing what was left out, you can’t look at the sectional conflict, the Civil War, and Reconstruction in the same way again. Continue reading "The Civil Rights Movement You Haven’t Heard Of"
Brian Leiter, Critical Remarks on Shapiro’s Legality and the ‘Grounding Turn’ in Recent Jurisprudence
(October 15, 2020), available at SSRN
There are two overlapping complaints often offered about contemporary jurisprudence: the first is that it is too much aimed at an audience of (other) philosophers rather than an audience of legal practitioners; the second is that it is too dependent on advanced theory to be accessible to the average lawyer and legal academic. Brian Leiter’s recent SSRN post, Critical Remarks on Shapiro’s Legality and the ‘Grounding Turn’ in Recent Jurisprudence (which he indicates may become part of a forthcoming monograph (P. 1)), offers a response relevant to the second concern, and perhaps the first as well.
Leiter’s basic argument is that Scott Shapiro’s influential work, Legality, reflects an unfortunate turning away from H. L. A. Hart’s basic insights about law and theorizing about law, and towards unnecessary metaphysics. In Legality, Shapiro put forward a “planning theory” of law. Leiter’s critique of the book goes not only to that substantive result, but also to Shapiro’s methodological approach. In part, Leiter’s objection is a variation of one he has offered a number of times before: that Shapiro purports to be offering a conceptual analysis of law, and Leiter believes that this is a faulty methodology (for philosophy in general, and legal philosophy in particular). (Pp. 5-8.) Continue reading "Against Jurisprudence’s New Metaphysical Focus"
Ran Hirschl’s City, State: Constitutionalism and the Megacity (hereafter, City, State) addresses a significant gap in the constitutional law literature. Cities are economically, politically and culturally important and their importance will only grow. (P. 8.) Yet, Hirschl argues, constitutional theory and practice have not kept pace. Constitutional law scholarship does not have the “conceptual language and constitutional categories” (P. 10.) to account for the rise of cities. And constitutional orders typically assign cities a subordinate status, “as ‘creatures of the state’, fully submerged within the Westphalian constitutional framework, and assigned limited administrative local governance authority.” (P. 10.) City, State diagnoses this neglect and offers proposals for how constitutional orders can address it.
The Introduction sets the stage for the arguments that follow. Hirschl describes the rise of cities and the policy challenges posed by this rise. Among the most striking trends he identifies is the change in percentage of the world’s population who live in cities: “In 1800, 3% of the world’s population lived in cities. In 1950, less than 30% did; by 1990 43% of us were city dwellers. By 2019, this proportion has grown to 56%.” (P. 1.) Seventy percent of the world’s population is projected to live in cities by 2050. (P. 2.) These raw numbers tell only part of the story. The distribution of growth is uneven: “about 9 of every 10 urban dwellers since 1960 reside in Asia, Africa or Latin America.” (P. 4.) The rise of megacities—defined variously as cities with more than 5 or 10 million—has been similarly vertiginous. In 1950 New York was the only city in the world with a population of 1 million. By 2018, 33 cities had populations of at least 10 million. And studies predict that there will be cities with populations of 50–100 million in the next century. (P. 6–7.) These demographic changes create policy challenges. In today’s cities, poverty is concentrated and extreme, public health is threatened, and the environment degraded. (P. 5.) Hirschl further identifies problems that flow from cities’ “constitutional non-status,” including deficits in democratic representation and an absence of jurisdictional autonomy. (P. 9.) Continue reading "Urban Constitutionalism"
It’s hard to imagine people tolerating intentional violations of their physical autonomy, never mind seeking to monetize such behaviors. But as Kristelia García argues in her new essay, Monetizing Infringement, many copyright owners find this strategy appealing.
According to copyright’s standard narrative, infringement reduces the returns to creative effort and, thus, undermines authors’ incentives to produce new works. Here, however, García “destabilizes long-held but problematic assumptions about the interplay between copyright law’s purported goals and its treatment of infringement by challenging the received wisdom that rightsholders are necessarily anti-infringement.” (P. 270.)
Building on work by Tim Wu, Dave Fagundes, and Rebecca Tushnet, among others, García catalogues three distinct forms of monetizing copyright infringement across a variety of creative domains: (1) profitable infringement, in which infringement results in income for the rightsholder; (2) remedial infringement, in which infringement mitigates a worse outcome for the rightsholder; and (3) promotional infringement, in which infringement amounts to valuable and cost-efficient promotion for the rightsholder’s content. Continue reading "Profiting Off Infringement"
If tort litigation could help drive asbestos and other dangerous products from the market, might it also do so for cigarettes? For several decades, that has been the hope of scholars such as Richard Daynard and other advocates. In Tobacco Litigation, E-Cigarettes, and the Cigarette Endgame, Micah Berman provides a blueprint for the elimination of cigarette sales in the United States.
As Berman observes, “under general principles of tort law, if a less harmful ‘reasonable alternative design’ of a product is available, then the more harmful version is deemed to be defectively designed and cannot be sold without liability for the harm it causes.” E-cigarettes would seem to be a less harmful, reasonable alternative design to traditional cigarettes. Continue reading "Stopping the Sale of Cigarettes"
In the early days of the pandemic, the unemployment rate reached close to 15% , and the number of families that had at least one unemployed person doubled, to almost 10%. Those unemployment rates vary by race and gender: Black and Hispanic families were more likely to have one unemployed person than white or Asian families, and, several months into the pandemic, the US Census reported that women were more than twice as likely as men not to be working because of child care issues.
These statistics suggest profound impacts on the family. Enter sociologist Sarah Damaske’s new book, The Tolls of Uncertainty: How Privilege and the Guilt Gap Shape Unemployment in America (2021). The Tolls of Uncertainty explores the intersections between unemployment and family obligation through interviews with 100 people in urban and rural Pennsylvania. Damaske debunks various myths about the unemployed, such as that they are lazy or clearly differ from the employed, and shows that although men may face expectations to be the breadwinners, ”women appear to bear much higher levels of guilt and shame for losing their jobs.” (P. 14.) And the book proposes policies that support not just the unemployed but also their families. Continue reading "Toiling–and Not Toiling: Law, Gender, Class, and Unemployment"
Anna Lvovsky, Rethinking Police Expertise
, 131 Yale LJ.
__ (forthcoming 2021), available at SSRN
Recently, an outstanding anonymized article and exemplar of a law journal student editor’s peer review request landed in my inbox. This reflection covers both the article and the peer review request from the Yale Law Journal because they capture salutary trends in legal scholarship. The article is Police Expertise, which I learned only after submitting my peer review, is by Professor Anna Lvovsky. It tackles an important issue for practice as well as criminal procedure scholarship—deference to asserted police expertise. The peer review request asked astute questions, three of which should be asked more often for such scholarship: (1) whether the author’s account accurately tracks actual practice on the ground, (2) whether the key theoretical labels and distinctions make coherent useful sense, and (3) whether the theorizing is likely to have ramifications in practice, not just scholarship.
In this time of an acute crisis of trust in law enforcement, the topic of expertise is important—and apparently hot. Within about a week, I received peer review requests from two different leading journals with two different anonymized articles about the issue. The timing was fortuitous—it was about the time I had to select excellent scholarship to feature for this Jot. Professor Lvovsky’s article illuminates this issue, which has sparked debates in scholarship and practice, from a fresh perspective, and with outstanding research that goes well beyond easily accessible, published sources. Lvovsky’s Police Expertise, now forthcoming in the Yale Law Journal, examines the seemingly counterintuitive emphasis on police expertise by the defense rather than the prosecution, and to attack rather than to seek judicial deference to police claims. Continue reading "Asking the Right Questions about Police—and Scholarly—Expertise"
- Paul Brest & Colleen Honigsberg, Measuring Corporate Virtue—And Vice, in Frontiers in Social Innovation (Neil Malhotra ed., forthcoming 2021), available at SSRN.
- Veronica Root Martinez & Gina-Gail S. Fletcher, Equality Metrics, 130 Yale L.J. Forum 869 (2021).
Many of today’s investors are not just seeking positive financial returns. They are also seeking positive social impact. Not surprisingly, businesses and entrepreneurs have responded in kind with numerous investment offerings, corporate initiatives, and business ventures to promote social benefit. This shift in capital markets and corporate governance is perhaps most reflected in the incredible growth of environmental, social, and governance (ESG) investments and the increasing activism of America’s largest companies on some of the most pressing social issues of our time.
This shift away from pure profit-seeking towards profit-seeking plus social impact has been the subject of much debate. Less debatable is the sustained and significant nature of this sea change. One critical question that arises in the discussions surrounding this development is how best to compare and measure the efficacy of corporate actions for the betterment of society.
Two engaging, recent articles offer sensible approaches to addressing this critical question. The first article, Measuring Corporate Virtue—and Vice by Professors Paul Brest and Colleen Honigsberg presents a comprehensive general construct for benchmarking ESG performance. The second article, Equality Metrics by Professors Veronica Root Martinez and Gina-Gail S. Fletcher provides a more targeted proposal to address the specific problem of racial inequity in businesses. Each of these articles is distinct in their subject and scope of focus, but both fundamentally share the belief that business can play an important and more effective role in addressing certain social challenges. Continue reading "Corporate Social Measures"
Nina Varsava, Professional Irresponsibility and Judicial Opinions
, __ Hous. L. Rev.
__ (forthcoming, 2021), available at SSRN
In recent months, federal judicial opinions have criticized “schlocky Star Wars sequels” or called circuit case law “a hot mess.” They have fondly recalled “[w]hen painter-turned-inventor Samuel Morse sent the first telegraph message” or sarcastically used expressions like “presto!” or “voila.” And they have sustained decades-long criminal sentences by writing: “tl;dr . . . . we affirm the whole kit and caboodle.” In different ways, these opinions are having a bit of fun. And what could be wrong with that?
Quite a lot, argues Nina Varsava in a bracing and timely paper on judicial rhetoric. The piece takes aim at opinions that are literary, witty, or entertaining—precisely the traits that, she argues, are often held in high regard. Part of Varsava’s argument overlaps with familiar debates about legal narrative and storytelling, but she goes in unexpected directions. Continue reading "A Rule Against Fun"