National Parks, Inc.

Sarah Light, National Parks, Incorporated, 169 U. Pa. L. Rev. 33 (2020).

Any law review article that name-checks the Doritos Locos Taco warrants a read. But National Parks, Incorporated, by Sarah Light, does much more. The article presents a grounded inquiry into the nature of publicness that is fascinating in its own right and that tackles timely questions about the boundaries of the state at a time when they are being vigorously contested. Specifically, this article: presents a history of private enterprise on public lands to illustrate the tension between public interests and commercial interests that has been present since the inception of the national park system; describes how this tension has evolved and expanded in the modern political and economic context; and presents a framework for thinking about the value of publicness and where boundaries around private enterprise should be drawn to preserve it.

Light begins with an account of the political and legal history of the national parks, which was a pure delight for someone whose pandemic travel has consisted entirely of road trips to parks across the Western United States. More importantly, this part of the article reveals how the legislators, administrators, and activists instrumental in founding these institutions thought about the value of publicness in the parks and the threat posed to it by private, commercial interests. For them, in a nutshell, publicness was necessary to guard against two key harms associated with private property: exclusion and destruction. Publicness meant that any individual, of any means, could enjoy the natural splendor of the parks. And it meant that this natural beauty could not be consumed or defaced by profit-making enterprise. On top of these benefits to individuals, publicness also provided collective benefits. Committing public resources to park lands expressed the nation’s shared commitment to the values of preservation, equal access, and democracy through civic interaction among Americans from all different walks of life. Continue reading "National Parks, Inc."

Learning from Sex Workers: Lessons in Advocacy, Stigma, and Struggle

Yvette Butler, Aligned: Sex Workers’ Lessons for the Gig Economy, 26 Mich. J. Race & L. __ (forthcoming, 2021), available at SSRN.

Yvette Butler’s forthcoming article, Aligned: Sex Workers’ Lessons for the Gig Economy, is one of those pieces that sticks with you, that pops back into your head multiple times as you go about your day after reading it. This is because it is so packed full of framework-shifting insights about gig work, sex work, racial justice, gender justice, employment law, labor law, and worker solidarity, to name just a few of the topics it covers.

To paraphrase Professor Butler’s central insight, different types of work have different and complicated relationships with legal protections and with stigma. Sex workers have a long history of negotiating both legal status issues and stigma, and have much to offer gig workers in the way of strategy and solidarity lessons. Continue reading "Learning from Sex Workers: Lessons in Advocacy, Stigma, and Struggle"

Gauging Genetic Privacy

James W. Hazel & Christopher Slobogin, “World of Difference”? Law Enforcement, Genetic Data, and the Fourth Amendment, 70 Duke L.J. 705 (2021).

Human beings leave trails of genetic data wherever we go. We unavoidably leave genetic traces on the doorknobs we touch, the items we handle, the bottles and cups we drink from, and the detritus we throw away. We also leave a trail of genetic data with the physicians we visit, who may order genetic analysis to help treat a cancer or to assist a couple in assessing their pre-conception genetic risks. Our genetic data, often but not always shorn of obvious identifiers, may be repurposed for research use. If we seek to learn about our ancestry, we may send a DNA sample to a consumer genetics service, like 23andMe, or share the resulting data on a cross-service platform like GEDmatch. If we are arrested or convicted of a crime, we may be compelled to give a DNA sample for perpetual inclusion in an official law-enforcement database. Law enforcement might use each of these trails of genetic data to learn about or identify us—or our genetic relatives.

Should law enforcement be permitted to make use of each and every one of these forms of genetic data, consistent with the Fourth Amendment of the U.S. Constitution? That is the question that motivates James W. Hazel and Chris Slobogin’s recent article, “World of Difference”? Law Enforcement, Genetic Data, and the Fourth Amendment. Hazel and Slobogin take an empirical approach to the Fourth Amendment inquiry, reporting results of a survey of more than 1500 respondents and probing which types of data access respondents deemed “intrusive” or treading upon an “expectation of privacy.” Their findings indicate that the public often perceives police access to genetic data sources as highly intrusive, even where traditional Fourth Amendment doctrine might not. As Hazel and Slobogin put it, “our subjects appeared to focus on the location of the information, not its provenance or content.” That is, intrusiveness turns more on who holds the data, rather than on how it was first collected or analyzed. Hazel and Slobogin conclude that their findings “support an argument in favor of judicial authorization both when police access nongovernmental genetic databases and when police collect DNA from individuals who have not yet been arrested.” Continue reading "Gauging Genetic Privacy"

Getting Real About Procedure: Changing How We Think, Write and Teach About American Civil Procedure

Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021).

It is time to do a gut check about the nature of civil procedure and due process in the United States. Much of the discourse among law proceduralists is divorced from the reality of how most Americans experience the court system, if they participate at all. With less than two percent of all civil cases brought in the federal courts, procedural scholars are being challenged to do some soul searching about our pedagogy and curriculum—largely centered on the federal civil system. The common proceduralist gaze falls on Supreme Court precedent and the Federal Rules of Civil Procedure—highbrow loci ripe for analysis.

But this focus misses the mark, argues Norman Spaulding in The Ideal and the Actual in Procedural Due Process. He flags that this perspective is “idealized, abstract, and ossified,” unconnected to the way things actually work. This myopia not only calls into question the relevance of much current civil process pedagogy, but has serious repercussions for the vulnerable and marginalized. Continue reading "Getting Real About Procedure: Changing How We Think, Write and Teach About American Civil Procedure"

Relating – Equally – Through Property

Hanoch Dagan, A Liberal Theory of Property (2021).

For anyone seeking a rational and convincing justification for private property, Hanoch Dagan’s newly published book, A Liberal Theory of Property, is a compelling read. The book provides an ideal – even utopian – vision of property ownership, arguing that such ownership is, and can only be, legitimate if it is “premised on a fundamental commitment to autonomy as self-determination or self-authorship.This commitment explains and justifies both the private authority that characterizes all property types and their inherent limitations.” (P. xii.) At the same time, the book provides many highly pragmatic descriptions of how property law actually functions to promote and protect self-authorship, as well as prescriptions for how to revise property law to accomplish this function more fully.

Thus, the book is not only a fascinating read for property law professors and political philosophy diehards, but it is a (perhaps surprisingly) valuable read for those who engage in lawmaking and law practice and who want to think about the practical legal value and limits of property ownership. Continue reading "Relating – Equally – Through Property"

Habeas, Hail Mary, And the Hook and Ladder

Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159 (2021).

Time ticks away. You have one shot downfield. If you don’t score a touchdown, the game’s over. Which play should you call? A Hail Mary pass into the end zone, reducing the game’s outcome to a lone, long-shot attempt? Or perhaps a trick play—a conceit from the back of the playbook with a colorful name like flea-flicker, fumblerooski, or Statue of Liberty—requiring you to avoid a series of tackles in an unlikely bid to run the ball to victory? In other words, would you rather face nearly impossible odds once or even odds a half dozen times?

Winning review of a state criminal conviction in federal court requires a higher-stakes and less fair version of the same choice among long shots. First, a criminal defendant can appeal directly to the highest civil authority by petitioning the U.S. Supreme Court for certiorari. But these prayers for relief, like Hail Marys, most often go unanswered. Second, a defendant can petition a federal district court for a writ of habeas corpus. But like the flea-flicker or the hook-and-ladder, federal habeas involves avoiding many procedural obstacles. Finally, a defendant could choose a hybrid: file a habeas-like petition for postconviction review in state court, and hope that the Supreme Court will grant certiorari after state courts deny relief. At first blush, this hybrid approach seems to combine the challenges faced by its alternatives, because to succeed it must hurdle many procedural obstacles and then complete a desperate, Hail Mary pass. Yet in Direct Collateral Review, a dazzling tour through both postconviction doctrinal weeds and high habeas theory, Payvand Ahdout shows that this hybrid approach has promise for individual criminal defendants and the development of constitutional doctrine. There are even substantial benefits for judicial federalism, because the Supreme Court can supervise the application of federal rights in state courts without undermining the presumption of parity between federal and state trial courts. Continue reading "Habeas, Hail Mary, And the Hook and Ladder"

Is an “Arbitral Court” an Oxymoron?

Pamela K. Bookman, Arbitral Courts, 62 Va. J. Int’l L. 161 (2021).

Once upon a time, litigators faced a clear choice among competing dispute resolution procedures. You could litigate. You could arbitrate. Or you could mediate. Early generations of dispute resolution scholars imagined these processes as being wholly distinct. Frank Sander, during the famed 1976 Pound Conference, envisioned a “multi-door courthouse” where disputes could be neatly grouped—with the ease of a Harry Potter-esque sorting hat—into the most appropriate resolution mechanism.

Over the past couple decades, these once-discrete processes have become more muddled. This is particularly true for complex commercial and international disputes. Processes converge and exist parallel to one another across jurisdictions. Parties may litigate the scope of an arbitration clause or the enforceability of an award. They may mediate one branch of a dispute while arbitrating another. They may also mix and match aspects of each procedure with blended processes like “med-arb” or “arb-med.”

Domestic and international court systems have both responded to, and shaped, this complicated reality. Pamela Bookman is among the clearest analysts of these trends in judicial innovation. Her new piece, Arbitral Courts, analyzes exactly what its title suggests: public courts that adopt many of the features of private arbitration. Oxymoron? Maybe. New reality? Definitely. Continue reading "Is an “Arbitral Court” an Oxymoron?"

Why Ethical Climate Matters in Newly Admitted Lawyers’ Workplaces: An Empirical Examination of Ethical Climate, Job Satisfaction, and Lawyer Wellbeing

Stephen Tang, Vivien Holmes, and Tony Foley, Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers, 33 Geo. J. Legal Ethics 1035 (2020).

In 1999, then-Professor Patrick Schlitz published a provocative article called On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession.1 Drawing on anecdotal accounts and empirical data, the article examined the perplexing issue of lawyer dissatisfaction. After discussing the explanations for why many lawyers are unhappy and unhealthy, Schlitz recommended strategies for lawyers pursuing career paths in practice settings where they can thrive and practice ethically.2

Fast forward 20 years, to the results of an empirical study conducted by Professors Stephen Tang, Vivien Holmes, and Tony Foley and discussed in their article, Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers. This article examines the role ethical climate plays in influencing ethics and the connection between perceived ethicality and lawyer satisfaction. With heightened concern related to lawyer well-being and remote work, I commend the authors for conducting an ambitious study and urge you to read their article to learn more about their findings and recommendations. Continue reading "Why Ethical Climate Matters in Newly Admitted Lawyers’ Workplaces: An Empirical Examination of Ethical Climate, Job Satisfaction, and Lawyer Wellbeing"

Tracking Change and Continuity in Twenty-First Century Copyright Fair Use

Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions Updated, 1978-2019, 10 N.Y.U. J. Intell. Prop. & Ent. L. 1 (2020).

In the past sixteen years, copyright law has undergone important changes. Court have issued major decisions, such as Skidmore v. Led Zeppelin, which clarified the Ninth Circuit’s substantial similarity test and rejected the inverse ratio rule, and Capitol Records, LLC v. Vimeo, LLC, in which the Second Circuit elucidated a more concrete red flag knowledge standard for purposes of the Digital Millennium Copyright Act. Significant new copyright legislation, in the form of the Music Modernization Act, has also been promulgated. And during this period, fair use jurisprudence has also continued to grow apace. Many of the cases that are now considered copyright law canon for students, academics, and practitioners alike were decided during this period, including Bill Graham Archives v. Dorling Kindersley, Ltd., Perfect 10, Inc. v. Amazon.com, Inc., Cariou v. Prince, and Authors Guild, Inc. v. Google, Inc. Barton Beebe’s recent article analyzing fair use opinions from 1978 to 2019 thus provides a welcome update to his earlier work that covered fair use cases from 1978 through 2005.

Both Beebe’s original article and this update use statistical analyses of all the fair use opinions issued during the period to draw conclusions about how judges have applied the four fair use factors and their subparts. Beebe’s earlier work provided an important statistical analysis baseline for anyone wanting to understand, modify, or improve fair use. This long-awaited update will no doubt prove useful in providing the most recent data on fair use determinations to those in the copyright space. Continue reading "Tracking Change and Continuity in Twenty-First Century Copyright Fair Use"

Understanding the Competitive Effects of a Public Option

Brendan S. Maher, The Private Option, 2020 Mich. St. L. Rev. 1043 (2021).

Proposals to allow individuals to buy into a public health insurance program such as Medicare have been circulating for over a decade and have been the subject of much academic work. In The Private Option, Professor Brendan Maher offers an important addition to that literature by exploring how the competition between public and private payors that is inherent in public option proposals is likely to play out with respect to three key functions of health insurance: risk bearing, cost control, and ensuring quality care. It is a careful, highly readable, and non-ideological piece of scholarship that should be helpful to a range of stakeholders – from students trying to understand how health insurance markets function to policymakers trying to weigh the benefits of current health reform proposals. While not Pollyanna-ish, the article is ultimately hopeful, making an underappreciated case for the public option by explaining how competitive pressure from a public payor might result in better private health insurance options.

The article begins by explaining the various roles that health insurers play in the United States, focusing on three primary functions: risk-bearing, cost control, and encouraging quality care. The remainder of the article is devoted to evaluating how private payors might behave in a world in which they must compete against a public option. This evaluation is accomplished by assessing the comparative advantages of public and private payors with respect to the three primary functions of insurers previously identified. With respect to risk-bearing, the article unsurprisingly concludes that public payors have an enormous advantage over private payors. Indeed, Maher admits, if insurers were solely serving a risk-bearing function, no private payor could effectively compete with the government. As a result, it is unlikely that a public option would create genuine competition with respect to the risk-bearing function of insurance. Continue reading "Understanding the Competitive Effects of a Public Option"

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