Monthly Archives: October 2017

Questioning the Queue

Katharine G. Young, Rights and Queues: On Distributive Contests in the Modern State, 55 Colum. J. of Transnat’l L. 65 (2016).

A queue, whether it takes the form of a line or a list, is one of the simplest and most familiar algorithms for allocating scarce resources. It is also a tool of social control, a metaphor, and a powerful framing device, as Katharine Young incisively demonstrates in Rights and Queues: On Distributive Contests in the Modern State.1

Young focuses on the way that the queue interacts with rights or—more broadly—entitlements. One of her central examples involves the allocation of public housing in South Africa. Though highly contextualized, Young’s analysis resonates with concerns about housing and social welfare policy elsewhere, including in the United States. Young’s emphasis on the political and rhetorical work performed by the queue is an eye-opening complement to other recent treatments of queues in property law.2 Continue reading "Questioning the Queue"

Protecting the Right to Family Life in Immigration Law

Kerry Abrams, Family Reunification and the Security State (forthcoming, 2017), available at SSRN.

Many Americans believe that one of the functions of United States immigration law is to facilitate family reunification. For example, the idea that if a non-citizen marries a United States citizen that person can reside in the United States with their U.S. citizen spouse. Yet another function of U.S. immigration law is border control to protect national security. Consequently, if the United States government deems a non-citizen a security threat, regardless of their relationship to a U.S. citizen, that non-citizen could be denied entry to the United States. The relationship between these two immigration law functions—family reunification and national security—has varied throughout American history.

Kerry Abrams’ forthcoming article, Family Reunification and the Security State, provides a framework for understanding the “shifting and complex relationship” between these two immigration law functions. (P. 1.) Professor Abrams identifies three periods of U.S. history in which the relationship between these two immigration law functions has varied. During the age of the unitary family there was little tension between the two immigration law functions, and family unity was paramount. In the subsequent age of security, the State’s concern about national security threats increased and family reunification was subordinated to border control. We are currently in the age of balancing in which family rights are viewed as individual constitutional rights that must be balanced with the State’s interest in border control. The implications of these shifts are highly visible today as citizens challenge President Trump’s executive order limiting migration from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen based on their interest in family reunification. Continue reading "Protecting the Right to Family Life in Immigration Law"

Three Strikes for Copyright

Abhishek Nagaraj, Does Copyright Affect Reuse? Evidence from Google Books and Wikipedia, Mgmt. Sci. (forthcoming 2017), available at

How should copyright law change to take account of the internet? Should copyright expand to plug the internet’s leakiness and protect content that the internet would otherwise make more freely available? Or, should copyright relax its strict liability regime given diverse and productive reuses in the internet age and the benefits networked diffusion provides users and second-generation creators? Answering these questions depends on what we think copyright is for and how it is used and confronted by creators and audiences. In a new article studying these questions in the very focused setting of Wikipedia articles about baseball and baseball players (there are more than you might imagine!), Professor Abhishek Nagaraj demonstrates that where production of new knowledge depends on pre-existing information, strong copyright law can reduce both the quality and quantity of new content.

Professor Nagaraj studies the intersection of digital access and information diffusion. In the paper reviewed here, Nagaraj takes advantage of the lack of automatic renewal of copyrighted works published before 1964, rendering many to the public domain, to estimate the effect of access to public domain material on the quality of Wikipedia pages. His findings both confirm other studies in this area and raise new lines of inquiry. Continue reading "Three Strikes for Copyright"

Enquiring Minds Want to Know: What Law Governs Forum Selection Clauses?

Symeon C. Symeonides, What Law Governs Forum Selection Clauses, 78 La. L. Rev. (forthcoming 2018), available at SSRN.

I can think of no better person to answer the burning question, “What law governs forum selection clauses?” than the inestimable Symeon C. Symeonides, of conflict-of-laws fame. Symeonides has stepped into the breach to assist civil procedure and federal courts professors everywhere with an exhausting analysis of how to resolve the problems relating to applicable law as it applies to contractual forum selection clauses.

Some may remember that the Supreme Court in Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas avoided (or evaded) this fundamental question. Instead, focusing on proper procedure, the Court held that a forum selection clause is appropriately enforced through a venue transfer motion under 28 U.S.C. § 1404(a).

Having resolved this vexing procedural issue, the Court left unanswered an array of irksome foundational questions. In the final analysis the Court’s entire Atlantic Marine edifice was erected on the premise that the forum selection clause in that case was valid. In footnote 5, the Court simply noted that “[its] analysis presuppose[d] a contractually valid forum-selection clause.”

Atlantic Marine proceeds from a presupposition of validity, which invites the question of how to decide if a forum selection clause is, in fact, valid. At a minimum, three legitimate questions arise: (1) what body of law applies to evaluate the validity and enforceability of a forum selection clause? (2) what court should make that determination? and (3) when should that determination be made? The analysis is further complicated depending on whether or not the contract also contains a choice-of-law provision. A choice-of-law provision might point to the application of a law other than the law of the plaintiff’s chosen forum. In such cases, as a matter of first instance, does the plaintiff’s chosen forum apply its own law to determine the validity and enforceability of the clauses, or does the choice-of-law provision compel interpretation of validity and enforceability based on the contractual forum’s law? Does the answer to this question vary depending on whether the court’s authority is based on admiralty, federal question, or diversity jurisdiction? And, if the threshold dispute centers on the validity and enforceability of choice-of-law and forum selection clauses, why should another forum’s law govern these questions? Continue reading "Enquiring Minds Want to Know: What Law Governs Forum Selection Clauses?"

Over and Under-Policing: Thoughts on Remedying Shooter Bias

Using the fatal shooting of Laquan McDonald by Chicago police officer Jason Van Dyke as the starting point, this article seeks to address the common articulation of fear by police officers in the wake of such fatalities. Initially highlighting the question of why an unarmed teenager who did “not appear to be threatening anyone” (P. 145) was shot a total of sixteen times, Professor Lee addresses the data, which are officially underreported, on the number of fatal shootings that occur annually in the United States. Despite the lack of official data, the article notes that, “nongovernmental sources … indicate that the actual number of persons killed by police is probably double [the reported figure of 420 fatal encounters with police annually.]” (P. 146-47.)

Turning to focus on the disparate number of Black individuals who are shot and killed by police, Prof. Lee notes that, despite constituting only six percent of the U.S. population, “Black men accounted for approximately forty percent of the total number of unarmed individuals shot and killed by police.” (P. 149.) This is the central problem that Lee seeks to address. She makes two proposals, which are based on the failures of perception that often take place in such encounters. Continue reading "Over and Under-Policing: Thoughts on Remedying Shooter Bias"

Against Babbitry: What Legal History and Practical Leadership can Tell us about Lawyers’ Ethics

Robert W. Gordon, The Return of the Lawyer-Statesman?, 69 Stanford L. Rev. 1731 (2017).

Reading Robert W. Gordon’s Essay The Return of the Lawyer-Statesman? on Ben W. Heineman Jr.’s book, The Inside Counsel Revolution (an introduction and link to the book can be found here) reminded me of three virtues. One is of the review essay, the ability to luxuriate in another’s work and allow it to be seen through one’s own ideas. This is something I confess I have never attempted, fearing the reflex to critique or the urge to self-publicize would surface too strongly. The second is of the need to return to familiar but central ideas. Gordon has written on the themes in this essay many times before (see for example, Corporate Law Practice as a Public Calling and A New Role for Lawyers: The Corporate Counselor after Enron). His arguments are the more elegant for it and, importantly, our reading of Heineman is more rewarding too. But the third is the one that struck me most forcefully, which is the wisdom to be gained from well-told legal history.

The central virtue of Gordon’s essay is the historical contextualization of Heineman’ book. Gordon gives us a taut, rich, and informative narrative on the importance of political context. In seeking to answer whether General Counsel can be both [business] partner and [public] guardian as Heineman puts it, we are reminded how we have been here before: the tensions in the General Counsel role—and their currently high status in corporate affairs – are not peculiarly modern. Most importantly we also see how lawyers’ ethics are shaped by far larger forces than law schools and bar associations. So the influence of inter-war industrial relations, Reagonomics, the politics of corporate leaders, and latter day skepticism of the corporation post-financial crash may all play a role. Continue reading "Against Babbitry: What Legal History and Practical Leadership can Tell us about Lawyers’ Ethics"

Administrative Constitutionalism in Immigration Law

Kristin A. Collins, Bureaucracy as the Border: Administrative Law and the Citizen Family, 66 Duke L.J. 1727 (2017).

Kristin A. Collins’s recent article ties together “two foundational ‘borders of belonging’ in American law: the rules that determine family membership and the rules that determine political membership.” (P. 1730.) More specifically, Collins, in a case study of the evolution of derivative citizenship, demonstrates how immigration administrators fashioned rules to guide their own decisionmaking in this area and embedded those rules in statutes and legal precedents.

Collins pushes back against the all too common idea that immigration administration is more lawless and discretionary than regulation at the economic regulatory agencies that are the usual focus of scholarship on the administrative state. Instead, Collins observes immigration officials engaged in the same kind of “administrative constitutionalism” practiced by bureaucrats elsewhere. Continue reading "Administrative Constitutionalism in Immigration Law"

Law as a Social Artifact

Luka Burazin, Can There be an Artifact Theory of Law?, 29 Ratio Juris 385 (2016), available at SSRN.

It seems clear that, on any plausible general theory of law, the institutions and content of law are manufactured by human beings for the purpose of regulating human behavior and are, thus, properly understood as social artifacts. Positivism, of course, is committed to the idea that the existence and content of law owes entirely to human social activity. But it is not unreasonable to think that law is an artifact on even the strongest natural law view. According to this view, the law consists of those properly enacted norms that conform to objective moral requirements. Although there are, thus, necessary moral constraints on what counts as law, it nonetheless seems reasonable to characterize law, on this view, as an artifact. The construction and operation of more familiar concrete artifacts, such as clocks, are constrained by laws of physics yet are paradigmatically artifacts; the situation seems not much different, from the standpoint of legal theory, with socially constructed law that is constrained by moral norms.

Despite its conspicuous theoretical significance, the artifactual nature of law has not, until comparatively recently, received a great deal of attention from legal theorists. In Can There be an Artifact Theory of Law, Luka Burazin sets out to remedy this omission by giving a brief outline of an artifact theory of law. Burazin attempts to identify the implications of the claim that law is an artifact, as well as sketch what an adequate “artifact theory of law” might look like. Burazin’s analysis in this excellent paper is concerned only with law qua legal system (as opposed to law qua norm) presumably because the normative output of an institutional artifact, like a legal system, must also be artifacts. Continue reading "Law as a Social Artifact"

Is Systemic Risk Special?

Aaron James, The Distinctive Significance of Systemic Risk, 30 Ratio Juris 239 (2017), available at SSRN.

In one of his more famous aphorisms, Oliver Wendell Holmes remarked that “[o]ur law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like,” whereas “the torts with which our courts are kept busy to-day are mainly the incidents of certain well known businesses … railroads, factories, and the like.”1 In the 120 years since Holmes penned his remark, our social world has become ever more organized. Holmes wrote before the mass production of consumer products and before environmental harms on a global scale existed. Indeed, Holmes seems to have had in mind just one kind of systemic risk, namely, the repeat imposition of the same risk by an institution that repeats the same action over and over again. Railroads, for instance, run trains past the same intersections on a regular basis.

We are familiar with more advanced and diverse forms of systemic risk. Some products are characterized by risks that are present every time the product is used but that are responsible for physical harm only relatively rarely. Many product design defects are like this. The Ford Pinto gas tank is a case in point. The defective design was present in every Ford Pinto but its risks remained dormant until a car was involved in a collision. Other products impose unacceptable risks every time someone is exposed to them. Asbestos is the most notorious example. In still other cases, the independent actions of innumerable people coalesce into a critical mass and that critical mass imposes a major risk. Climate change is a case in point. It is surprising, then, that the distinctive issues raised by systemic risk imposition have received so little attention, and heartening to see that sophisticated political philosophers have now begun to pay them heed. In The Distinctive Significance of Systemic Risk, Aaron James, a political philosopher at the University of California at Irvine, zeros in on several of the thorniest moral issues presented by practices of systemic risk imposition. James is preoccupied with two questions. Continue reading "Is Systemic Risk Special?"

It Gets Worse Before It Gets Better: Victims’ Duties to Resist Injustice 

Ashwini Vasanthakumar, Epistemic Privilege and Victims’ Duties to Resist their Oppression, J. Applied Phil. (forthcoming).

Victims have recently assumed a privileged place within criminal justice policy. The criminal justice system has sought to promote victims’ rights, to provide the victims of crime meaningful opportunities to participate in the prosecution of cases. But in promoting victims’ rights, the criminal justice system sometimes loses track of victim’s duties. In seeking to shield victims from further physical or psychological harm from the criminal injuries visited upon them, we sometimes fail to press victims to step forward to resist those who would wrong them. That, at any rate, is the important argument advanced by Ashwini Vasanthakumar. Vasanthakumar builds upon other accounts of victim’s duties to argue that victims have a duty to resist their abusers. More powerfully, that duty to resist becomes, on occasion, a duty to assist other victims.

It’s worth putting Vasanthakumar in conversation with another scholar of victimhood—Michelle Dempsey—to elucidate the novelty of her position. Victims’ duties are not simply the mirror image of their rights. Victims may have a right to participate in prosecuting some criminal wrongdoer. But the duty to participate is one shared by all witnesses to injustice, whether victims or mere bystanders. (So argues Dempsey in her book Prosecuting Domestic Violence: A Philosophical Argument.) Vasanthakumar recognizes that one sort of victim duty is a dignity based one: by resisting her abuser, a victim restores her sense of self-worth. This type of resistance does belong to the victim in her role as victim: as Dempsey argues, “[b]y standing up for herself against…violence and abuse, [a victim] realizes a value which no one else can realize: a value grounded in self-respect, courage, selfmastery, refusal to be dominated, etc.” Other members of the community could choose to identify with the victim in accusing the abuser. But they cannot restore the victim’s dignity on her behalf. She must assert herself—even if it is with the community’s help—to realize the dignitarian values that come with the duty to resist. Continue reading "It Gets Worse Before It Gets Better: Victims’ Duties to Resist Injustice "

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