Elizabeth Sepper & Deborah Dinner, Sex in Public
, 129 Yale L. J.
Advocates of equality breathed a sigh of relief when the Supreme Court issued its opinion in Bostock v. Clayton County, interpreting the word “sex” in Title VII to include employment discrimination based on gender identity and sexual orientation. Title VII is just one part of the sweeping and historic Civil Rights Act of 1964 (CRA), drafted primarily to help remedy the scourge of racial discrimination across various areas of public life. Representative Howard Smith inserted the word “sex” in Title VII towards the end of the drafting process, not as a means to sink the act (as the apocryphal story goes) but at the urging of feminist activists. Probably even more controversial than Title VII at the time of the CRA’s passage was Title II, prohibiting discrimination based on race, religion, or national origin in public accommodations. No lawmaker added “sex” to this provision, and it remains absent today in this provision of the statute.
Perhaps this absence helps to explain why legal historians have paid scant attention to the achievement of sex equality in public accommodation laws. Elizabeth Sepper and Deborah Dinner make a major corrective in their excellent article, Sex in Public. They present a broad-ranging and timely discussion of the wide variety of forms of sex-based discrimination in public life in the 1960s and 1970s. They recount the tireless efforts of feminist activists to dismantle these forms of sex segregation. Activists were motivated in part by a radical vision of sex integration that was never quite realized in the law. As the authors show, this recaptured vision has the potential to help to inform today’s fight for full inclusion of members of LGBTQ communities. Continue reading "Integrating Spaces: The Fight for Sex Equality in Public Accommodations"
Dan Priel, The Philosophy of Law for a Naturalist: An Introduction to Artificial Law Theory
, Osgoode Legal Studies Research Paper (June 12, 2020), available at SSRN
In this provocative article, Dan Priel offers a naturalist approach to thinking about law. This naturalist approach, in turn, leads to two ambitious lines of arguments: first, rejecting many traditional jurisprudential inquiries, and, second, providing a highly unconventional view about the relationship of morality and law.
Naturalism (not to be confused with “natural law theory”) has been defined in different ways. Early in the article, Priel offers a useful (if, as he notes, imprecise) summary: naturalism is the view that “explanation[s] of [human] actions should be continuous, and of the same kind as, explanation of the nonhuman part of nature.” (P. 2.) Naturalism within legal philosophy has, for some time, been associated with Brian Leiter. However, Priel criticizes Leiter’s approach as being little more than an argument for (existing) empirical work on law, while offering no tasks for legal philosophy. As will be noted, Priel agrees that naturalism rejects some traditional jurisprudential topics, but he believes that there remains room for, and, indeed, a need for, a distinctively naturalist jurisprudence. Continue reading "Dan Priel’s Naturalism"
Marketa Trimble, The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies
, 23 Lewis & Clark L. Rev.
501 (2019), available at SSRN
Intellectual property rights are territorial. Infringement claims—of unauthorized copying, making, selling, using—involving patents, copyrights, trademarks, or trade secrets are extraterritorial. Courts are also territorial, and their jurisdictional reach often limited by geography. So, what happens when a successful intellectual property claimant seeks to remedy the wrong in the courts? How do extraterritorial harms map onto the territorial limits of courts and rights? In The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies, Professor Marketa Trimble offers a powerful analytic assessment of these issues, introducing new conceptual vocabulary and policy solutions. For innovativeness in framing and addressing an issue, Professor Trimble’s article is one that I like lots for the reasons I jot below.
To concretize the issue, Equustek v. Google, [20180 10 W.W.R. 715 (Can.)], provides the exemplary case. In Canadian court, Equustek alleged that Datalink, a rival computer hardware company, had stolen its trade secrets. When Datalink refused to comply with a Canadian court order, the company’s corporate officer fled the country, never to be apprehended. Equustek then sought an order in Canadian court against Google, seeking to have the company remove Datalink from all global search results. The Canadian court ordered this global injunction. With this example, we see a complex dynamic of intellectual property litigation across global boundaries. Continue reading "Recognizing and Correcting a Discrepancy"
Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone & Stephen Fournier, The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions involving Disabled Mothers
, __ Yale L. & Pol’y Rev.
__ (forthcoming), available on SSRN
The right to parent is recognized by the Supreme Court as a fundamental right, but this right remains elusive for many groups, including parents with disabilities. The Americans with Disabilities Act (“ADA”), heralded as landmark legislation for people with disabilities, turned thirty this year. However, parents with disabilities are still not adequately protected by the ADA, especially when they are involved with the child welfare system. In a forthcoming article in the Yale Law & Policy Review, Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone, and Stephen Fournier use empirical data to demonstrate how the ADA is routinely ignored in parental termination decisions in the child welfare system and suggest ways to ensure that the parenting rights of people with disabilities are protected. The article analyzes results of an empirical study conducted by Robyn M. Powell as a part of her doctoral dissertation. It contextualizes the results of her empirical work with a rich discussion of disability law and policy. I found it striking how the authors demonstrate with data that parents with disabilities are denied a key tenet of reproductive justice, the right to parent with dignity.
The article describes how the legislative history of the ADA indicates that the ADA was designed to protect parents with disabilities, especially in child welfare proceedings. Title II of the ADA requires child welfare agencies and courts to abide by a host of requirements including: providing people with disabilities an equal opportunity to participate in services, programs, and activities; administering services, programs, and activities in the most integrated setting appropriate to the needs of people with disabilities; and not applying eligibility criteria that tend to screen out people with disabilities. The article notes that most importantly, the ADA requires child welfare agencies and courts to treat disabled people on a case-by-case basis, consistent with facts and objectives, and not based on stereotypes and generalizations about people with disabilities. Continue reading "Termination of Parental Rights of Mothers with Disabilities: The Role of the Americans with Disabilities Act"
In 1984, the McDonald’s Corporation obtained a federal trademark registration for the mark MICKEY D’S for restaurant services, claiming in its application that it had been using the mark for restaurant services since 1981. The specimens submitted with the application don’t appear to be available online, but specimens submitted in connection with maintenance activities consist of newspaper ads from local franchises, a national full-color ad that appeared in Jet magazine and Ebony magazine in 1982, and a photograph of a “Mickey D’s Dinner Box” available in some locations. Research suggests that the MICKEY D’s mark wasn’t the result of ad agency brainstorming but rather originated in the Black community in the United States as early as 1976. Its subsequent adoption and use in marketing by the McDonald’s Corporation may have been part of a strategy—as the 1982 specimens suggest—to promote the restaurant chain back to the community from which the name emerged. David Green, senior vice president for marketing at the McDonald’s Corporation, implied this, glibly, in a 1996 article in AdAge, writing that the company’s work with the Black-run advertising firm Burrell Communications gave McDonald’s “the highest share of the African-American market. Talk to anyone in the ‘hood, and they talk about Mickey D’s. We’ve become part of the vernacular.” Black consumers may have created “Mickey D’s,” but the federal trademark rights in the term now belong to McDonald’s.
The larger complicated relationship between McDonald’s and the Black community is the subject of Franchise: The Golden Arches in Black America, the excellent book by Marcia Chatelain, a professor of history and African American studies at Georgetown University. It’s a relationship that, in Chatelain’s telling, rests at the intersection of social change, economic development, and corporate profit, with seemingly contradictory valences. McDonald’s corporate practices were the subject of boycotts and protests at individual restaurants, but local franchises were also welcome sources of financial support for the communities in which they were located. The company took advantage of existing inequalities in various regions, including cheap land and a depressed labor force, and yet it also positioned itself as a source of employment and advancement for the Black community, particularly through its efforts to diversify its franchisee ranks in the wake of white franchisee flight in the 1960s. (Those franchise opportunities were not, however, often in economically prosperous neighborhoods). Continue reading "The Meaning of McDonald’s [®]"
In Access to Algorithms, Professor Bloch-Wehba unleashes both the First Amendment and FOIA (the Freedom of Information Act, along with its state counterparts) on algorithmic governance opacity. She argues that the law of access encompassed by FOIA and the free press clause can help promote a public debate of algorithmic decision-making by governments as well as provide avenues by which individuals–especially under-resourced individuals–might find redress for the sometimes catastrophic output of automated systems.
Algorithmic decision-making in the context of law enforcement (such as sentencing and bail) has been mapped by and Bloch-Wehba’s article touches on algorithmic criminal law determinations here as well. In addition, she unpacks algorithmic operations which affect government employees, specifically using “value-added assessments” to quantify teacher effectiveness, which has been challenged by teachers’ unions. But her attention to algorithmic denials of Medicaid benefits has heretofore received scant attention. Especially because elderly Medicaid applicants and recipients seeking long term care benefits are almost by definition under-resourced individuals, the opacity of algorithmic decision-making in this context deserves careful examination. But the very opacity of algorithmic operations which generate denials or reductions of public benefits presents a challenge for scholars as well as the citizens who bear the brunt of the automated decisions. Continue reading "Medicaid Algorithmic Opacity and a Transparent Solution"
Workplace wellness programs have received significant attention in the legal literature. These programs are premised on the idea that, rather than simply covering the cost of medical care, health plans should encourage enrollees to take affirmative steps to improve their health so that less medical care is needed. Such encouragement generally takes the form of financial incentives that are provided either for taking certain actions (like filling out a health risk assessment or undergoing a biometric health screening) or for achieving specific health outcomes (such as quitting tobacco or lowering cholesterol). An explicit motivation for such plans is that they can be a piece of the cost-containment puzzle, all while encouraging an otherwise laudable goal–improved health and less sickness. Yet these programs have been strongly criticized for potentially shifting health plan costs onto those least able to afford them. Many suspect that these programs do little more than reward those already engaged in health-enhancing behaviors and may in fact shift costs onto individuals who are sick, disabled, or low-income.
To date, most empirical studies of wellness programs have been observational–simply measuring differences in outcomes between those who voluntarily choose to participate in programs and those who do not, while attempting to control for various differences between groups. But such studies are of limited use in trying to establish whether it is wellness program participation that drives such outcomes. After all, it is highly plausible that only health-motivated individuals who have the capacity to participate in a wellness program opt to do so. In What do Workplace Wellness Programs do? Jones et al. present the results of the first-ever comprehensive randomized controlled trial of a workplace wellness program. Their findings suggest that wellness programs neither lower medical costs nor improve health outcomes or worker productivity. Instead, the study suggests that wellness programs may save an employer money by helping to recruit and retain healthier workers. Continue reading "The Profit-Maximizing Wellness Plan? Results from the First Comprehensive Randomized Controlled Trial of an Employer Wellness Program"
In July 2020, newspapers reported a study that ranked the United States as the second-worst country—after Mexico—to raise a family out of 35 OECD countries. The US failed, in particular, in the categories of cost to raise a family, time parents have to spend with their children, and safety as related to raising a family. Sadly, for families who struggle with this issue, this report held nothing surprising. The Free-Market Family (2020), by Maxine Eichner, affirms the study and adds much more. The book details, in a comprehensive and nuanced manner, the failure of the US to support its families. Eichner argues that over the past five decades the US has gradually adopted an extreme version of “free-market family policy,” in which the government’s role in helping families to care for their children, especially in their early years, is minimal. Families are sacrificed to the market’s mercy, juggling work and caregiving, in what becomes a mission impossible for all but the ultra-rich. The result is devastating: the well-being of most US families—measured across such standards as happiness, academic achievement, mental health, time to spend with family, and economic mobility—is significantly worse in comparison to other similar countries.
The Free-Market Family is mandatory reading for anyone who wants to understand how laissez-faire public policies fail most US families. Diligently and elegantly, Eichner maps and analyzes the various policies that contribute to this failure. One of the book’s primary strengths lies in the richness of disciplines, resources, and methodologies she engages—from history to political economy, from major news stories to economic data, from interviews with 39 parents to comparative policies across various nations. Together, the book provides a thorough and rigorous account of the policies that the US has embraced, including their political origins and their harm, and offers suggestions about how to correct them. Eichner’s style is crisp and delightful, making even her meticulous detailing of policies and data accessible to a broad audience without compromising the critical nuances of these issues. The personal narratives make the story less abstract, and are often very touching. Continue reading "“Free” Market Too Costly for US Families"
Don Herzog‘s new book exhorts its readers to face up to tough facts about the doctrine, purpose, and practice of sovereignty—and the irrelevance of that concept to legal argument. For anyone whose calling is to teach and develop the primary constitutional precepts aimed at taming state power—limiting it, dividing it, and making it accountable—Herzog’s book is a hair-raiser of a read, especially in light of the last four years of headlines. It is also a good text for anyone interested in political theory or constitutional doctrine.
In simple terms, sovereignty posits unitary, total command as a requirement to give us order. There must be one unaccountable source of law and of rules. Devised as a means of stopping bloody religious wars in Europe, and perhaps useful today where internal wars rage among sects, the idea has seen its time pass in liberal democracies. Sovereignty as an idea is no longer a means to resolve religious hatred without gore, but a problem of remnants here to make trouble. Unlike Mark Twain’s misreported departure, sovereignty’s death has been grossly underreported. Pronouncements of its obsolescence by the likes of St. George Tucker, Harold Laski, John Dewey, Hannah Arendt, and H.L. A. Hart (Pp. 265-68) have not had the clout to head off furtive moments of reliance on the classic theory. (P. xii.) Continue reading "Zombie Sovereignty: Dead Idea, Eternal Life?"
Justin Weinstein-Tull, The Structures of Local Courts
, _ U. Va. L. Rev.
_ (forthcoming 2020), available at SSRN
Most of the conversation about Kansas v. Glover considered the Fourth Amendment’s bearing on traffic stops. But one detail has gone unmentioned: Glover began in Kansas District Court, that state’s trial court. It then travelled to the Kansas Supreme Court, before finally arriving at the Supreme Court of the United States. This hardly seems noteworthy. After all, state supreme courts, along with federal courts of appeals, are among the most well-trodden paths to the Supreme Court, and those state cases must begin somewhere.
Yet Glover is, quite literally, a statistical outlier. As Justin Weinstein-Tull describes in The Structures of Local Courts, only 0.3% of local court cases—cases like Glover—litigated through trial receive a state supreme court opinion, and fewer still receive one from the United States Supreme Court. Their scarcity at the pinnacle of our judicial system belies their ubiquity throughout it. In 2015, for instance, 361,689 criminal and civil actions were filed in federal court, while 86.2 million (yes, million) were filed in local courts. Most legal disputes begin and end in local courts, yet they’re markedly absent from legal scholarship. This article fixes that. Weinstein-Tull provides a trenchant account of local courts, illustrating their structural diversity, revealing how a state–federal law latticework leaves them mostly free from oversight, interrogating our conception of their purpose, and imagining reforms and new lines of scholarly inquiry. Continue reading "Unshrouding Our Day-to-Day Courts"