Monthly Archives: November 2021
Nov 17, 2021 Carole SilverLegal Profession
For many—perhaps most—law students, law school is hard and stressful; legal practice is similarly experienced by many lawyers. The stress of these environments can act as an incubator for mental health problems, which often are buried by lawyers and law students, occasionally surfacing in stories of anxiety, substance abuse, addiction, depression and suicide, among other things. At the same time, however, law students report high levels of satisfaction with law school and their career decision, as do lawyers, which complicates understanding the mental health trend. This paradox calls for new thinking about mental illness in law school and the profession, which Kathryne Young’s article, Understanding the Social and Cognitive Processes in Law School That Create Unhealthy Lawyers (Understanding Unhealthy Lawyers), pursues. It offers a different lens for understanding these issues by directing attention to how the organizational policies and structure of legal education negatively impact law students’ well-being and, ultimately, their mental health.
Young is particularly well qualified to address this topic, having written a popular book on law student happiness (How to be Sort of Happy in Law School (2018)). But while the book is a how-to for students, Understanding Unhealthy Lawyers frames the wellness and mental health problem in relation to the organizational structure of law school, and invites law schools and faculty members to reconsider certain longstanding and widespread policies and practices in legal education. Continue reading "Rethinking Fundamentals? Law School and Mental Health"
Nov 16, 2021 Anders WalkerLegal History
Is capitalism good? A growing number of historians suggest no, particularly scholars affiliated with the New History of Capitalism, a trending field with close ties to Harvard and a deep interest in locating slavery at the center of the American experience. However, historian Woody Holton strums a more positive chord in his recent essay, “The Capitalist Constitution,” part of a larger anthology edited by Sven Beckert and Christine Desan styled American Capitalism: New Histories. Holton reminds us that the Framers’ anti-democratic interest in finance may not have been a bad thing, laying the foundations for a dynamic market economy that would propel the United States forward for the next two centuries.
Interested in the “actual motivations” that brought the founders to Philadelphia in 1787, Holton focuses on two compelling, if understudied concerns: an interest in preventing states from printing paper money and a related interest in preventing states from enacting legislation that impaired contracts. Both measures, on their face, seem rather obscure. Neither bore directly on the question of slavery. Nor did they relate to the reasons generally thought to have prompted the call for a robust, national Constitution: including the inadequacies generally associated with the Articles of Confederation. Continue reading "When Private Equity Serves the Public Good: Woody Holton’s “Capitalist Constitution”"
Nov 15, 2021 Gilberto MorbachJurisprudence
Gerald J. Postema,
Constitutional Norms—Erosion, Sabotage and Response, __
Ratio Juris__ (forthcoming, 2021), available at
SSRN.
How should we respond to the different challenges that threaten democracy and the rule of law today? To talk of we here, to state that a response is our response, is to understand that while “[t]he claim of an inclusive ‘ours’ may look like a pious fiction, . . . well-functioning democratic polities work to make it credible.” (P. 4.) This is part of what Gerald Postema takes a healthy constitutional democracy to be, in his discussion on Constitutional Norms—Erosion, Sabotage and Response. This is not rhetoric, but part of the argument itself: the very acknowledgment of new challenges to democracy and the rule of law as challenges is something that depends on what we what we take democracy and the rule of law to mean. After all, “unlike their predecessors, contemporary aspiring authoritarians pay striking attention to the forms of law.” (P. 1.) To be sure, strictly formal conceptions of democracy and legality do not necessarily entail approval of regimes that take the forms of law as mere tools for political power; but since our real-world classifications and labels ultimately hinge on the way we interpret these concepts, these thin conceptions can easily lead us to conclude that “illiberal democracies” are democracies nonetheless; that while we may dislike it, the striking attention of contemporary aspiring authoritarians to the forms of law suffice to show that the rule of law is morally neutral.
Professor Postema does not take the rule of law to be just a framework of general, public norms, nor does he take democracy to be a mode of delegating power to whoever wins more votes. His account of democracy is that of a constitution — a set of institutions by which power is constituted, exercised, constrained, and tempered, as Martin Krygier would put it — to be valued — and recognised as such — for its respect for deeper principles of political morality (not just instrumentally) and for the environment it upholds: an environment of reciprocity between citizens as co-members of a polity. In that sense, democracy properly so called is not only government through law; it is also government subject to law’s rule. This is why Professor Postema’s account of the rule of law is directly related. While the ideals of the rule of law and democracy are “conceptually distinct”, they are “functionally intertwined” — democracy so defined depends on the rule of law, on a conception of the rule of law by which it is, more than government through a system of rules derived from a rule of recognition, an ideal that promises “protection and recourse against the arbitrary exercise of power through the distinct instrumentalities of the law.” (P. 5.) Continue reading "Constitutional Norms And Law’s Rule: Responding To The Subversion Of Democracy"
Nov 12, 2021 Laura Pedraza-FariñaIntellectual Property Law
At the heart of Professor Liza Vertinsky’s excellent article, Pharmaceutical (Re)Capture, lies a persistent paradox: Although the U.S. innovation ecosystem is one of the most sophisticated and advanced in the world, its technological prowess has not resulted in broadly distributed public health benefits. On the contrary, the U.S. experiences some of the highest spending in biomedical innovation, but some of the poorest health outcomes as compared with other developed countries.
Historians of medicine call the belief that the societal path to better health lies in technological interventions a “biomedical approach to health.” This approach has profoundly influenced global and U.S. health care policy in the twenty-first century. An alternative, “sociomedical,” approach looks at expensive, high-technology innovations with a certain degree of skepticism, prioritizing instead broad access to low-cost, low-technology primary health care. Biomedical approaches, however, have eclipsed global and domestic sociomedical practices. Continue reading "Impacts of Pharmaceutical Capture on Public Health Outcomes"
Nov 11, 2021 Rosalind DixonInternational & Comparative Law
In his brilliant new book, The Collapse of Constitutional Remedies, Aziz Huq tells the tale of two eras for constitutional remedies in the US: a mid-century moment in which the Supreme Court created a new, expansive remedial architecture, and a late-century moment of remedial retrenchment. In the mid-twentieth century, Huq notes, the Court developed a “comprehensive” and “robust” four-part remedial architecture, involving injunctions, habeas relief, damages and the exclusion of evidence. (Pp. 87-97.) From the 1970’s onwards, the Court began to hollow out the force of these remedies, by erecting a range of barriers to their availability, including the need to show an “obvious wrong”, various immunity doctrines and evidentiary barriers. (Pp. 5-6, 103-32.) Huq also notes the way in which this retrenchment has occurred selectively, along two different ‘tracks’: one track, involving structural challenges based on federalism and separation of powers principles, has largely seen the availability of constitutional remedies hold steady; and another track, involving individuals’ claims to protection from state violence, has witnessed a large-scale retreat. (Pp. 16, 134.)
Huq further notes the immense consequences of this selective retreat: the continued availability of remedies in structural cases has made it harder to advance social state objectives or preserve the infrastructural state, whereas the retreat of remedies in other cases has made it harder to challenge the despotic state. (Pp. 15-16.) In America today, as in the pre and post-Civil War era, the despotic state also bears disproportionately on the poor and racial minorities. Failing to curb the despotic state, therefore, is part of why we see a current crisis of racial injustice and violence in America. Another part is failing to uphold and enable the infrastructural state to enact the programs and regulations necessary to achieve racial and economic justice. (P. 8.) Continue reading "Reconceptualizing Constitutional Remedies"
Nov 10, 2021 Medha MakhloufHealth Law
At the time of this writing, there is widespread public consciousness of both racial health disparities, owing to the COVID-19 pandemic, and the problems of racialized policing in the United States, owing to a wave of protests of police killings of Black people. In a timely new article, Professor Ji Seon Song masterfully explores the relationship between inequitable access to health care and policing by analyzing whether and how criminal procedure doctrine protects patients in hospital emergency rooms (ERs) from harmful police practices.
Professor Song’s primary field of interest is criminal law, not health law—but that, I suggest, is one of the reasons why health law scholars and others interested in health policy should give it a read. This, an article primarily analyzing a criminal law issue, provides new and valuable insights about primary interests and status relationships in health care. Though debates about the coherency and scope of health law as a field are ongoing, most health law scholars are concerned with a fairly discrete set of primary interests and status relationships. Among these are the unique vulnerability of patients during a therapeutic transition, the duty of care that medical professionals owe to vulnerable patients, and the persistence of inequities in access to health care by race and class. Professor Song touches on each of these interests in her analysis of the criminal procedure doctrine governing police investigations. As someone who seeks to provide valuable insights about the intersection of health and immigration laws to the community of health law scholars, this type of scholarship is of particular interest to me, and I appreciated the opportunity to review this piece and provide feedback to Professor Song before it was published. Continue reading "Compounding Vulnerability: Hospital Emergency Rooms as Sites Of Race- And Class-Based Police Surveillance"
Nov 9, 2021 Dara E. PurvisFamily Law
This year, the law journals at the University of Michigan Law School published a collective joint special issue focusing on racism and the law. One essay included in the volume, selected and edited by the Michigan Journal of Race and the Law, was Colleen Campbell’s Medical Violence, Obstetric Racism, and the Limits of Informed Consent for Black Women. Professor Campbell’s essay concisely describes and explains how, as she puts it, “Black women are simultaneously overmedicalized and medically neglected” in obstetrics. Physicians see Black women as innately high-risk, so that they are overmedicalized by disproportionately common surgical interventions during pregnancy and birth. At the same time, racism that continues to devalue Black lives leads medical professionals to disregard Black women’s choices and agency around their reproductive health. In both cases, the ability of Black women to determine or even consent to their medical treatment is undermined.
Professor Campbell’s project is an ambitious one, as she traces treatment of Black women by the medical establishment in the context of obstetrics from the exploitation of enslaved women to higher rates of Black maternal mortality today, and she ably synthesizes the works of a wide range of scholars and literatures to do so. In the earliest days of “professionalized” gynecology, white male physicians took over a practice that had been largely conducted by women such as midwives. One way that the field became professionalized and masculinized was by greater reliance on surgical procedures. And a key, disturbing part of the development of surgical procedures was surgical experimentation on enslaved women, the most extreme example of medical violence in Campbell’s account. Campbell points to the example of James Marion Sims, considered the father of modern gynecology through his surgical treatment of fistulas, who operated on conscious and unanesthetized enslaved women. Adding insult to unfathomable injury, Sims described enslaved women with no choice or control over what happened to their bodies as happily consenting to these procedures, and relied on the racist belief that Black people did not feel pain the way that white people did to justify not using anesthesia. Continue reading "Obstetric Racism and the Limits of Family Law Reform"
Nov 8, 2021 Kim BrooksEquality
This edited collection came to press as many of us around the world “went home”. Spring (Canadian spring, at least) 2020 had become unfamiliarly quiet. There was so little traffic on the streets that I could hear the ice-maker in our fridge on the main floor producing ice even though my bedroom (on the second floor) door was closed.
Despite the quiet, those work-from-home days were chaotic and exhausting. My days were filled with one zoom meeting after another. As the Dean of a Faculty, I found myself making endless and ostensibly urgent and important decisions, only to change those decisions the next day. I imagined someone watching me “at work”. They would have watched a middle-aged woman, hunched over a small Ikea desk in the corner of her bedroom sitting quietly, but staring intensely, at a laptop screen for hours, periodically yelling loudly at the screen. My days were both filled with others and yet isolating and alienating. Continue reading "The Timing is Perfect for Revolutionary Feminisms"
Nov 5, 2021 Jessica M. EaglinCriminal Law
Algorithmic risk assessments, offered as a means to improve decision-making by standardizing the prediction of an individual’s future behavior, present myriad challenges in criminal administration. The tools are inscrutable. The tools are discriminatory. What is to be done? One popular solution is public participation in the design and adoption of actuarial risk assessments. Though not a panacea, jurisdictions across the country – from New York City to Sacramento – are passing or considering laws that require public oversight in the adoption of actuarial risk assessments.
In her article, The Democratizing Potential of Algorithms?, forthcoming in the Connecticut Law Review, Ngozi Okidegbe challenges the assumption that these kinds of initiatives can resolve one of the most deep-seated critiques of pretrial algorithms – their racialized effect on marginalized people disproportionately subject to the carceral state. To the contrary, she argues that such efforts threaten to exacerbate the problem. Because her article questions the compatibility of the algorithmic project with racial justice in a novel way, it is a must read for scholars interested in criminal legal reforms. Continue reading "Debunking the Myth of Democratized Algorithms in Criminal Administration"
Nov 4, 2021 James E. PfanderCourts Law
Samuel L. Bray & Paul Miller,
Getting Into Equity, 97
Notre Dame L. Rev. __ (forthcoming, 2022), available at
SSRN.
I write to offer three cheers for Getting Into Equity, a rumination on the distinctive manner in which litigants invoke law and equity. To get into law, the authors explain, one asserts a cause of action, rooted in a Roman law conception of redress for a violation of one’s rights. To get into equity, the suitor provides a narrative account of a grievance that raises an equity in her favor. Equity may act in relatively predictable ways, but it remains fundamentally discretionary in the hands of judges or chancellors who have been asked to correct an injustice. The authors persuasively argue that the distinction has survived (if barely) the fusion of law and equity in the Federal Rules of Civil Procedure.
One immediate takeaway (as my students like to say) seems straightforward: judges asked to do equity must conduct a more flexible, less rule-bound assessment of the nature of the grievance and should not insist on codified causes of action. That may suggest that the failure of Congress to create a statutory right to sue in favor of the United States should not prove fatal to its suit for injunctive relief against enforcement of the Texas anti-abortion statute, SB8. Rather, the extraordinary nature of SB8’s enforcement regime and the apparent inadequacy of remedies at law for doctors who face a string of potential bounty-hunter proceedings might justify equitable intervention absent any statutory (or prior precedential) authority. Continue reading "Recovering Equity"
