Yearly Archives: 2020
Apr 20, 2020 Brooke D. ColemanCourts Law
I love being a JOTWELL contributor, but I am going to be real with you. Writing a Jot in the midst of a pandemic is fraught. I sit at my computer, often paralyzed, while questions run through my mind, such as: How do I write about the latest and greatest law review article as if everything around us is normal? How do I conjure the energy to focus on great scholarship when in the back of my mind I am just, well, worried?
I do not have many answers right now. But I do know one thing for sure: This community that we have built—scholars who have a deep interest in justice and how it works within our civil court system—is an amazing one. I have watched with awe as you have taught your classes, written your work, and kept things going with amazing grace. I am grateful for all of you and I am honored to be a part of your world.
So, in this Jot, I am going to do something a little different. One idea behind JOTWELL was to be something of a time saver. Each Jot draws attention to a great piece of legal scholarship. Given the reality of our current time constraints, I want to focus your attention on a new University of Chicago Legal Forum, Law in the Era of #MeToo. The online forum includes several great pieces. One notable inclusion is Judge Diane P. Wood’s Sexual Harassment Litigation with a Dose of Reality. Continue reading "The Real World"
Apr 17, 2020 Edward RubinJurisprudence
Although we have made substantial progress since the late nineteenth century in supervising the process by which sausages are made, we have failed to make any significant progress in supervising the procedures used by legislatures. Stephen Gardbaum recommends that we remedy this situation. He argues that courts should use the Due Process Clause to review the procedures by which laws are enacted, as well as reviewing the substance of the enactments. His title indicates that he is building on the path-breaking article by Hans Linde, Due Process of Lawmaking, published more than forty years ago. Professor Gardbaum breathes new life into the idea and invites us to think about a promising and innovative means of improving our much-troubled system of government.
Procedural due process, Professor Gardbaum argues, demands that all branches of government–legislative, executive and judicial–follow constitutional decision-making procedures in addition to reaching constitutionally acceptable results. The applicability of this principle to executive and judicial decisions is unchallenged, but the prevailing view is that it does not apply to legislation. Perhaps this is because legislation is promulgated by popularly-elected officials and thus regarded, contrary to Burke, as an act of will rather than an act of reason. Professor Gardbaum doesn’t challenge this view; his point is that actions carrying out the will of the legislators can also suffer from procedural defects that demand attention and correction. He offers two examples: if legislators decide between alternative proposals by flipping a coin, and if they enact legislation in return for campaign contributions. These examples reflect two general categories of procedural defects: legislating without sufficient reasons and legislating for the wrong reasons. Professor Gardbaum refers to the first category at several points. It includes a failure to state the rationale for a statute, the failure to provide any empirical basis for it, or the failure to subject it to open consideration and debate. But the primary focus of his article is on the second category–legislating on the basis of the wrong reasons, and specifically ones that are wrong because they are corrupt. Continue reading "Should Courts Strike Down Improperly-Enacted Law?"
Apr 16, 2020 Christopher J. BuccafuscoIntellectual Property Law
Nicholson Price II,
The Costs of Novelty, __
Colum. L. Rev. __ (forthcoming 2020), available at
SSRN.
Patents exist to promote the progress of innovation, but a wealth of recent scholarship has demonstrated the ways in which patents influence the pace and direction of innovation in potentially problematic ways. The prospect of patent protection may cause innovators to focus on particular kinds of solutions to problems over others (i.e., those that can be patented), and it can cause researchers to focus on solving certain kinds of problems over others (e.g., those that offer the greatest opportunities for financial returns). In his new essay, Nicholson Price II describes another way in which patent law doctrines encourage certain kinds of innovations—“differentiating” innovations—over others—“deepening” or “exploring” innovations.
Borrowing insights from research on cumulative innovation and product differentiation, Price develops a taxonomy of different innovation strategies that researchers might adopt. They might focus on developing richer knowledge about existing technologies. Price calls this “deepening” innovation. Or, researchers might seek to take a large step beyond the existing field of knowledge. This is “exploring” innovation. Finally, researchers might opt for a middle strategy that does not produce substantial differences from existing approaches. These “differentiating” innovations do not take the great leaps that exploring innovations do, and nor are they intended to enrich our knowledge of existing solutions. Continue reading "The Price of Novelty and the Novelty of Price"
Apr 15, 2020 Mathilde CohenInternational & Comparative Law
Did you know that only two beverages, water and milk, were allowed during the recent impeachment trial at the Senate? Iselin Gambert would be unsurprised by the sight of senators gulping down glasses of milk while considering whether the President should be convicted of treason, bribery, or other high crimes and misdemeanors. Indeed, her fascinating article, Got Mylk?: The Disruptive Possibilities of Plant Milk, tells you everything you always wanted to know about the social and legal meaning of milk in the United States and the European Union, brilliantly dissecting the ongoing battle over the use of the word “milk.”
Plant milk has rapidly grown in popularity among consumers in recent years while cow’s milk sales have languished. Yet, in both jurisdictions, the word milk is narrowly defined as the mammary secretion of an animal. In principle, it cannot be used to label oat, rice, soy, and other plant-based drinks. As Gambert notes, “[d]espite the fact that plant milk has been called ‘milk’ for thousands of years by cultures across the globe, dairy milk advocates have been waging a war against plant milk for the last several decades, fighting legal, legislative, regulatory, linguistic, and cultural battles over not only the very word ‘milk’ but also over the cultural space it occupies.” In 2017, Wisconsin senator Tammy Baldwin introduced the Dairy Pride Act, which would update the U.S. Code’s section on “misbranded food” to prohibit plant-based products from using terms such as “milk,” “yogurt,” or “cheese” on their labels. The same year, the European Court of Justice ruled that plant-based products are prohibited from using the word “milk” in their labels or marketing. Continue reading "Of Food, Words, and Law—Does It Matter What We Call Milk (and Meat)?"
Apr 14, 2020 David OrentlicherHealth Law
There are many reasons to reject deductibles, co-payments, and other ways in which insured patients are expected to pay out-of-pocket when they receive health care. In particular, as former FDA Commissioner Scott Gottlieb has observed, “sick people aren’t supposed to be subsidizing the healthy.” But as Gottlieb recognized, that’s exactly what out-of-pocket payments entail. Unlike insurance premiums which spread the cost of health care across both healthy and sick, deductibles and co-payments are paid primarily by those who are sick.
In Exposed, Christopher Robertson discusses this flaw and the many other deficiencies in patient cost-sharing. As he documents, cost-sharing rests on misguided (though prominent) economic thinking, ignores key concerns of moral theory, and persists despite solid empirical evidence of its ineffectiveness. Designed to eliminate wasteful spending, cost-sharing often leads the sick to forego valuable health care. For example, one study found that doubling the co-payments for prescription drugs decreased medication use and increased emergency department visits and hospital stays for patients with diabetes or asthma. Similarly, when patients have high-deductible health plans, those with lower incomes reduce their emergency department visits not only for low-value care but also for high-value care. Continue reading "The Failure of Patient Cost-Sharing"
Apr 13, 2020 Naomi R. CahnFamily Law
Deborah A. Widiss,
The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia, __
Comp. Lab. L. & Pol’y J. __ (forthcoming, 2020), available at
SSRN.
In the mid-1980s, Professor Wendy Williams posed “equality’s riddle”: does pregnancy result in women being unequal, thus needing special workplace protections, or should pregnancy be treated the “same” as other workplace conditions? The essence of the riddle concerns the best way to promote sex equality, more specifically whether pregnancy requires accommodation or whether it can be handled in the same manner as other physical conditions.
In her article, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia, Professor Deborah Widiss updates the dilemma Williams posed by examining the impact on sex equality of the differing approaches of paid parental, bonding leave laws in the United States and Australia. Spoiler alert: the article compellingly shows that the riddle has not yet been solved. While the U.S. approach may foster formal equality, the Australian approach may result in more overall time spent in caretaking. Continue reading "The Paradox of Parental Leave"
Apr 10, 2020 Ann E. TweedyEquality
Bethany Berger’s article Savage Equalities is an excellent exploration of the importance and varied meaning of equality in the context of tribal rights and Federal Indian Law. Berger carefully evaluates the various types of equality claims that are levied in relation to tribes, including the idea that recognition of tribal sovereignty creates special rights for tribes that denigrate the equality rights of non-Indians (or even, according to some formulations, Indians), the idea that recognition of tribal sovereignty is necessary to foster equal treatment of tribes and tribal citizens, and finally the concern that Indian tribes’ governmental actions sometimes violate their own citizens’ rights to equality. She traces the prevalence and deployment of these ideas through the tortuous history of the federal government’s relationship to tribes, showing how, for example, the idea of unfair “special rights” for tribes was used during particularly dark periods of federal-tribal relations such as the allotment period, when the idea purportedly justified harming tribes by unlawfully taking their property. The taking of tribal property at the time was deemed necessary to level the playing field for individual non-Indians who were seen as unfairly lacking these special rights.
Berger similarly traces the understanding of the right to tribal sovereignty as rooted in, and necessary for, equality through more positive periods of history, and she additionally identifies instances where individuals under tribal jurisdiction have been denied their rights to equality at the hands of tribal governments. Continue reading "Reconciling Competing Claims to Equality Relating to Tribal Governments and Native and Non-Native Individuals"
Apr 9, 2020 Suja A. ThomasCourts Law
People with low salaries recover less frequently for their claims against their employers than those with larger salaries. The problems include that lawyers lack the incentive to take these cases. They have less to gain monetarily, and the costs can even exceed the recovery. Professor Green tells us that low income individuals with wage and hour claims in small claims courts face these difficulties and more—indeed “wage theft” and it is theft condoned by the courts.
Professor Green opens her insightful article with a story about a case that her clinic tried. An hourly employee worked approximately 12 hours a day and was paid around $5 an hour. When she brought a wage and hour case in small claims court asserting $2500 in lost income, the court rejected the claim, concluding there was a simple contract between the worker and the employer—which had not been breached. The appellate court asked more questions and concluded that the wage and hour laws had been violated—awarding her $2,500. Continue reading "The Wild, Wild West for Low Wage Workers with Wage and Hour Claims"
Apr 8, 2020 Maartje van der WoudeCriminal Law
With immigration and border control as issues dominating public and political discourse worldwide, it is no surprise that a lot of scholarship addresses these issues. Through various theoretical lenses, scholars across the globe are trying to make sense of the upsurge of nationalistic and punitive legal and policy measures that cater to keeping out the unwanted “other” who could threaten national security or the economy. A new field even seems to be emerging: that of Border Criminology. The field is bringing together criminologists, criminal justice scholars, legal sociologists, and many others working on matters of penal power and immigration control. Weber and McCulloch’s article demonstrates the diversity and the interdisciplinary nature of this emerging field. Ironically, it also illustrates the importance of theoretical integration and looking over disciplinary boundaries to understand the processes and practices of bordering.
In their article, Weber and McCulloch address three main theoretical lenses (to be further) explored by scholars of border criminology. They highlight how these three lenses aim to understand different aspects of immigration and border control, as well as how further integration of these lenses can lead to deeper knowledge of the dynamics and the dialectics of the how, why, and when of immigration and border management. The three lenses they address are: Juliet Stumpf’s “crimmigration” thesis (2006), Mary Bosworth and Mhairi Guild’s adaptation of the “new penology” perspective to the politics of border control (2008), and Susanne Krasmann’s critique of Gunther Jakobs’s “enemy penology” thesis (2007). Continue reading "Theorizing Mobility"
Apr 7, 2020 Robert RosenCorporate Law
Yuval Feldman, Adi Libson and Gideon Parchomovsky,
Corporate Law for Good People, 115
Nw. U. L. Rev. (2020), available at
SSRN.Corporate law has incorporated some of the sociology of organizations. Often, this is by incorporating the concept of an organization having a culture. The organization’s culture organizes thought by individuals within the organization both by incorporating norms of satisficing and stimulating groupthink. In compliance, “tone at the top” is thought to be necessary. And, the concept of the organization shaping decisions within it explains why pervasiveness replaces mens rea for corporate criminal liability.
For many, organizational sociology is too vague. After all, in 1949, Clyde Kluckhohn demonstrated 73 different meanings that are attached to the concept of “culture.” Although the effects of organizations are apparent, the mechanisms by which organized experience frames individual decision-making are more difficult to understand. This is especially true in a culture, like ours, that prizes the self-determination of individuals. Continue reading "From Group-Think to Thinking about Groups"
