St. Louis Matters! Walter Johnson Revisits the 27th City

Finally! After being relegated to the lower tiers of American cities, St. Louis emerges as the nexus of the American experience. This is the startling argument advanced by Walter Johnson in his new book The Broken Heart of America: St. Louis and the Violent History of the United States. Known for his work on slavery, Johnson broadens his gaze to include westward expansion, industrialization, de-industrialization, and even the present moment. St. Louis emerges at the fore mainly due to its location, a gateway to the West that was also a shipping point to the South, a “northern” state where slavery was allowed and where the Union Army launched its Indian campaigns. This latter fact is central, for it is the confluence of imperialism and racial subordination that fascinates Johnson, leading him to conclude that racism—whether embodied in the genocide of native peoples or the exploitation of black labor—lies at the heart of American history.

Legal historians will be interested in two facets of Johnson’s book. First, by moving the geographic focus from the East Coast to the Midwest, Johnson reduces the significance of Boston, New York, and Washington DC to American history. In so doing, of course, he also reduces the importance of the Supreme Court. Only two 19th Century opinions interest him, the Court’s ruling in Johnson v. M’Intosh that delegitimized Indian sovereignty claims and Dred Scott v. Sanford, that delegitimized black citizenship. Both rulings fit into Johnson’s larger analytic frame, which reads the history of capitalism through the lens of race, and specifically Cedric Robinson’s “racial capitalism,” which holds that racism is inextricable from free enterprise, and that without racial subordination capitalism would cease to exist. Continue reading "St. Louis Matters! Walter Johnson Revisits the 27th City"

The Mother of All Subsidies

“Capital = Asset + Coding” is the axiom that serves as Katherina Pistor’s tool of analysis, to lay bare the role of law in the history of capitalism. An asset can be anything—a plot of ground, a machine, an idea, a debt, a sequence of molecules—but an asset becomes capital when, but only when, it has been “coded,” that is, when it has been endowed with specific modules of legal protection: she calls them priority, durability, universality, and convertibility.

Pistor, the Edwin B. Parker Professor of Comparative Law and Director of the Center on Global Legal Transformation at Columbia Law School, laments that “economists … have clung to the notion that capital is a physical input, one of the two factors of production, when in fact, capital has never been about a thing, but always about its legal coding; never just about input and output, but always about the ability to capture and monetize expected returns.” (P. 116.) Her book has won awards already, including two “best books” citations from the Financial Times. The financial press is taking heed, and legal academics should, too. This wonderful book is destined to inform the difficult way ahead, as global capitalism’s second crisis in a dozen years overwhelms us. Continue reading "The Mother of All Subsidies"

Rediscovering Patents’ and Copyrights’ Common Origins Story

Joseph Fishman, Originality’s Other Path, 109 Cal. L. Rev. __ (forthcoming, 2021), available at SSRN.

It is something of a received dogma among intellectual property scholars that, despite their common goal of incentivizing creativity, the copyright and patent regimes achieve this goal through wildly divergent legal structures. Professor Joseph Fishman’s excellent piece, Originality’s Other Path, sets out to question this dogma.

As I often describe these twin systems to my Intellectual Property (IP) students, they are in many ways mirror images of each other: patent law demands much more from inventors up-front—a patentable invention must represent a significant creative leap from prior technology—while copyright grants protection more indiscriminately to any artistic work possessing a modicum of creativity. Once an inventor clears this higher patentability hurdle, however, she is in possession of a powerful sword against anyone who would seek to practice her invention. Copyright, on the other hand, makes up for its more indiscriminate grant of protection by creating many safety valves for would-be infringers: independent creators are not liable for copyright infringement, and (owing to the fair use doctrine) neither are those who, although borrowing from copyrighted works, manage to sufficiently transform those works. Thus, although the Supreme Court has spoken of a “historic kinship” between patent and copyright law, to the trained observer, this kinship has always seemed to begin and end with their shared goals. And, whether by design or by historical accident, these divergent structures are generally taken to be a good thing. After all, what could be more fittingly different than two legal regimes designed to incentivize two radically different domains—two cultures, even, as C.P. Snow famously put it1 —of human creativity?

In Originality’s Other Path, Professor Fishman unearths a line of copyright cases stretching back to the 1800s that reveal a now-forgotten common origins story of patentability and copyrightability thresholds. In the process, he pushes us to reconsider whether the boundaries between “art” and “technology” are as immutable as C.P. Snow would have us believe or, as scholars in science and technology studies have long argued, they are instead fragile and porous. In turn, recognizing hidden kinships between art and technology opens the door for a more fruitful—and more deliberate—cross-pollination between patent and copyright law. Continue reading "Rediscovering Patents’ and Copyrights’ Common Origins Story"

Making Amends by Amendment: Women’s Equality and Equal Rights in the U.S.

Julie Suk, We the Women (2020).

The constitutional politics of gender equality are never static – the pendulum appears in constant motion the world over, and no less for the US. As protections of equality and non-discrimination are now given in all but three of the world’s constitutions, and as women’s rights are given direct expression in 24, the constitutionalist promise of gender equality has appeared to be on a global upswing. And yet these trends are not everywhere the same. Indeed, with the tributes flowing in for the late, great and notorious Justice Ruth Bader Ginsburg last month, both for her legacy to global constitutionalism as well as to US constitutional law, the robust protections of gender equality in the US seem ever more fragile. It becomes vital to understand that legacy, and other feminist achievements, outside of US Supreme Court doctrine.

Enter Julie Suk’s wonderful new book, We the Women: The Unstoppable Mothers of the Equal Rights Amendment. In this carefully researched and extraordinarily well-timed intervention, Suk documents the historical trajectory, and the current import, of the Equal Rights Amendment (the ‘ERA’) in the US. The amendment requires that the “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”. By 1977, a total of thirty-five states had ratified the ERA, falling short of the three-fourths of the states prescribed by Article V. Yet despite this failure, the ERA (and with it, the second-wave feminist movement), received “de facto” support via constitutional interpretation of the Fourteenth Amendment. The constitutional politics, however, does not end there. In recent years, a wide range of feminist supporters have worked to formalize – and remove the judicial authorship of – this protection. In January 2020, after intense mobilization of feminist advocates in many places, Virginia became the 38th state to ratify the ERA. The constitutional status of the ERA is now a legal puzzle before several courts, who must address the question of both the legal effect of its apparent rescission by several states, as well as the status of its seven-year legislative deadline for passage. Continue reading "Making Amends by Amendment: Women’s Equality and Equal Rights in the U.S."

The Corporation as Regulatory Partition and the Veil Peeking Exception

Mariana Pargendler, Veil Peeking: The Corporation As a Nexus for Regulation, _ U. Pa. L. Rev. _ (forthcoming), available at SSRN.

It is time to retire the term “veil piercing” from debates about corporate rights. Scholars have been drawn to the veil piercing language because of the tendency of courts to ignore the separate legal personality of a corporation when determining whether it may assert a particular constitutional or statutory right. For example, in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court looked to the religious beliefs of the shareholders in allowing the corporation to claim protection under the Religious Freedom Restoration Act. Yet cases like Hobby Lobby, in which shareholders assert a corporate right to avoid an otherwise applicable law or regulation, are quite different from veil piercing cases in which creditors seek to access shareholder assets in satisfaction of a corporation’s debt. These deviations from following the general rule of “corporate separateness” are analytically and functionally distinct.

In her forthcoming article, Veil Peeking: The Corporation As a Nexus for Regulation, Professor Mariana Pargendler gives us new language for discussing the variety of circumstances in which the law looks behind the corporation or disregards its separate legal personality. Pargendler starts by reviewing the concept of asset partitioning as an essential characteristic of the corporate form. Over the past two decades, distinguished scholars have illuminated the importance of asset partitioning for establishing the key corporate features of entity shielding, limited liability, and capital lock-in. But, as Pargendler explains, the partitioning between the assets of the corporation and those of its shareholders is only one dimension of corporate separateness. Corporate legal personality also separates the legal or regulatory spheres of the corporation from its shareholders—she terms this “regulatory partitioning.” And when the general rule of separate legal or regulatory spheres is disregarded, and shareholder rights or detriments are imputed to the corporation, she calls this “veil peeking.”

The article is at once both creative and classic. It nimbly draws connections between diverse areas of law such as antitrust, discrimination, and tax, to observe a basic yet important characteristic of the corporate form: it exists in a separate legal sphere from its shareholders. That is, the legal rights, duties, privileges, and detriments of a shareholder are generally not projected onto the corporation, which instead has its own separate existence that functions as a nexus for regulation. Continue reading "The Corporation as Regulatory Partition and the Veil Peeking Exception"

Protecting the Health of the Elderly

Like other regions in the world, Europe is being confronted with major demographic changes through decreasing birth rates and an ageing population. Although one cannot deny the advantages of the increased life expectancy, the elderly are struggling with stereotypes and facing discrimination based on age. For instance, elderly people use healthcare services disproportionally compared to younger generations, and an ageing population will further increase healthcare costs. Also, in times of public health emergencies like the Covid-19 pandemic, there is an ongoing discussion on whether the elderly should be deprioritised for admission at intensive care units due to scarcity of ventilators.

Facing such challenges, Ageing, Ageism and the Law includes the outcomes of a research project on the consequences of ageism and the role of law (enacting, enforcing and changing laws) in fighting ageism in contemporary societies. Continue reading "Protecting the Health of the Elderly"

Rethinking National Injunctions

Russell L. Weaver, Nationwide Injunctions, 14 FIU L. Rev. 103 (2020).

In a delightful article recently published in the Florida International Law Review, Professor Russell Weaver has done a great service to us all by helpfully summarizing the current state of the law concerning nationwide injunctions, drawing on and summarizing recent scholarship and numerous cases in the field. His article should prove to be of great value to the practitioner and the professor alike and, given its length and clarity (at seventeen pages, Prof. Weaver’s article packs quite a punch), those teaching in the area may even consider assigning it to their students. I probably will, because although many of my students seem to grasp the logic of compensatory damages due to some exposure in their first-year contracts and torts classes, they often seem mystified, at least initially, when it comes to injunctions, which is to say nothing of nationwide injunctions!

Part of this mystery, it seems, stems from the fact that injunctions grew up in courts of equity, whereas damages (primarily) grew up in common law courts, and the first-year curriculum (outside of a few contracts cases on specific performance) largely focuses on the latter at the expense of the former. This means that although students are familiar with the idea that compensatory damages should generally try to return an injured party to the position it would have occupied but for the wrongful harm inflicted by the wrongdoer, they have a harder time understanding why an injunction should be issued before a wrongful harm has ever come to pass. But the difficulties do not stop here. Unlike damages, which can be measured in dollars, they also find measuring the “amount” of an injunction to be counterintuitive. In theory, a court should award the “amount” of injunction needed to prevent the plaintiff from suffering from a potential future wrongful harm. But even talking about injunctions in this way seems odd, for injunctions cannot be “counted” in the same way that dollars can, and therefore determining the proper scope of an injunctive remedy is incredibly difficult. Continue reading "Rethinking National Injunctions"

Beyond Predictions About Predictive Policing

Kate Robertson, Cynthia Khoo, and Yolanda Song, To Surveil and Predict: A Human Rights Analysis of Algorithmic Policing in Canada, Citizen Lab and International Human Rights Program, University of Toronto (2020).

To Surveil and Predict is longer than the usual Jotwell suggestion. The authors carefully document and then explore the rights implications of the use of algorithmic and predictive tools by police forces in Canada. They conclude with a series of recommendations focused on public policy. My recommendation here is focused on the method and the equality focused parts of the report, although I like it all–a lot.

First, method. The Report works to expose and explore something that’s only just starting up. So classic doctrinal methods–where are the cases?–are not going to work well. But some of the analysis is quite legal, running things through Canadian human rights and charter provisions. At the same time and contrary to much (also very good) early work in this sector, they do not spend much time speculating about potential future technologies. Instead, Robertson, Khoo and Song pursued information (inter alia) about what was happening “on the ground” through freedom of information (FOI) requests. One of the many aspects of their work that I like: they provide information about how these requests were received and negotiated. (P. 13; Appendix A.) FOI is a critically important tool for researching the administrative state. How the process plays out is usually connected to the quality, volume and nature of the information obtained, but the process of making requests (and receiving replies, or not) is rarely described in articles. In my view, discussion of how the FOI requests worked in context is a good reason for adding length to research reports and analysis. Continue reading "Beyond Predictions About Predictive Policing"

The Shield Behind The Badge

Rachel Moran, Contesting Police Credibility, 93 Wash. L. Rev. 1339 (2018).

We are in the midst of a massive national protest, comprised itself of a wave of local protests, against the very institution of the police, or at least the widespread overuse of that institution to engage in actions beyond the crime-fighting competence that they claim for themselves. The distinction matters, because if the goal is not to abolish the police completely, but to defund and refocus their activities, some type of police reform is still necessary. Our attitude to the police, and our ideas about local and national means to control of the police, will profoundly shape what sort of reform we endorse. Rachel Moran’s recent article, Contesting Police Credibility, argues that law enforcement oversight requires robust institutional measures to challenge, resist, and hold accountable the police when they inflict harm upon the public.

Moran reveals that accountability is not transparency. Transparency might demand that the police are open and public about the wrongdoers in their midst, and disseminate records of police misconduct. Accountability requires an adequate process by which to hold the police answerable when departments or individual officers are called out for wrongdoing. Professor Moran’s focus is the lack of effective internal and external mechanisms of accountability. This lack of accountability, when combined with evidence of police wrongdoing, ought to subvert the presumption of reliability that the criminal process—judges, prosecutors, and juries—extend to the police as public officials. This presumption ensures that when the police are challenged on the streets or in the courthouse, the criminal justice process defers to the police as providing the only credible version of events. Continue reading "The Shield Behind The Badge"

#Getyour$$now!: A New Plan for Class Action Notice and Administration

Amanda M. Rose,, __ U. Chi. L. Rev. __ (forthcoming 2020), available at SSRN.

It is easier than ever to notify class members of a proposed settlement and for class members to file claims. So why are participation rates so low in consumer class action settlements? This is one of the most important puzzles in modern complex litigation. With billions of dollars spent on class action litigation, a 9% participation rate in consumer class actions seems a dismal return on that collective investment, even accounting for the deterrent or quasi-punitive functions that a large settlement represents for the defendants. In her new essay, Amanda Rose offers a solution to this and other related problems of class action administration and transparency—have the federal government develop and administer a website, is an intriguing proposal that would centralize and standardize certain administrative aspects of class action litigation and settlement (notice, informational websites, claims processing, and claims distribution) that she identifies as barriers to higher class participation rates as well as to the overall transparency of individual actions and class action litigation. Rose’s key insight is that broader and cheaper notice are insufficient to induce broader class participation, even when the average class recovery is a non-trivial sum. Rather, consumers must absorb the costs of reading and understanding the notice and assuring themselves that it is not fraudulent. A federally sponsored website would leverage Americans’ trust in the federal government. The use of a common government database would further streamline both the notice and claims processes. Continue reading "#Getyour$$now!: A New Plan for Class Action Notice and Administration"

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