Yearly Archives: 2022
Dec 16, 2022 Chao-Ju ChenEquality
Racial justice in education and LGBTQ equality are on the chopping block as the Court is reviewing two affirmative action cases against Harvard University and the University of North Carolina on the ground of racial discrimination and a LGBTQ rights case challenging Colorado’s anti-discrimination statute on the ground of free speech at the intersection of religious liberty. Conventional wisdom places the blame for the regression of equality and civil rights on the Court’s conservative super-majority. This is the same super-majority that infamously wielded its power to roll back abortion rights in Dobbs v. Jackson Women’s Health Organization. Indeed, the Court’s taste for hot-button issues is a testament to the conservative super-majority’s willingness to align itself with the conservative movement’s legal/constitutional agenda. Liberals’ and equality movements’ resentment of the Court’s ambitious conservativism is well-founded.
For Osamudia James, more is to blame for the current constitutional threats to legal equality. The equality gains that many celebrate and endeavor to protect – racial desegregation in Brown v. Board of Education and the recognition of same-sex marriage in Obergefell v. Hodges – came with a built-in weakness that led to the entrenchment, rather than disruption, of inequality. Through her elaboration on the “relational obstacles” on the road to racial justice and LGBTQ equality, James identifies the paradox situation: due to the failure to address the superordinate status of white people and straight men and heterosexual couples, equality movements and courts have produced “equality-promoting” doctrines that not only undercut the wins but also preserve “paths for the status-threatened to reinstate or reaffirm superordinate positioning” (P, 202) that would, finally, leave their old hierarchies in place. Consequently, equality’s drag is the unfortunate and unintended byproduct of equality wins. The increasing racial segregation of public schools and retrenchment of LGBTQ rights can only be attributed partly to the conservative movement because equality movements’ litigation strategies and advocacy also have a role to play. Continue reading "Preservation through Transformation: How and Why Equality Litigation and Movements Have Failed to Dismantle Status Hierarchies"
Dec 15, 2022 Jill FamilyLexImmigration
An immigration lawyer’s work is rarely easy. The outcomes are high stakes, and the statutes are complex and harsh. The law is unstable because immigration law relies heavily on shifting agency memos. Backlogs and case completion times seem only to multiply. Clients understandably are on edge, and lawyers try to help them comprehend a maddening system. Immigration law is a challenging practice area, no matter who occupies the White House. During the Trump administration, however, the executive branch made things especially difficult as it focused its power on grinding the system to a halt.
In the midst of the Trump administration, asylum lawyers participated in a survey administered by Professors Lindsay Harris and Hillary Mellinger. Harris and Mellinger’s main finding is high levels of burnout and secondary traumatic stress among the asylum attorneys who responded to the survey. These attorneys scored higher, meaning more burnout, than social workers, hospital doctors, nurses, prison wardens, and immigration judges. In Asylum Attorney Burnout and Secondary Trauma, Harris and Mellinger report their methods and findings, and make recommendations for alleviating the status quo. Continue reading "The Immigration Lawyers are Not “Alright”"
Dec 14, 2022 Felipe JiménezJurisprudence
Courtney M. Cox,
The Uncertain Judge, 90
U. Chi. L. Rev. __ (forthcoming 2023), available at
SSRN.
The received wisdom about adjudication is that all a conscientious judge needs to decide a dispute is a sound grasp of the facts of the case, sufficient knowledge of the applicable legal materials, and a theory of adjudication to go with them. In The Uncertain Judge, Courtney Cox argues that this received wisdom is incomplete. At least in some instances, she claims, (i) judges might be uncertain about whether their preferred theory of adjudication is correct, and (ii) different theories of adjudication would lead to inconsistent outcomes. In such a situation, judges face a problem of normative uncertainty.
This problem, as Professor Cox argues, is a “meta-problem.” As long as we believe judges can be coherently criticized in certain ways, the problem is real, whatever theory of adjudication or jurisprudential view we think is correct. The problem, as she writes, “floats on top” of first-order jurisprudential debates. (P. 3.) And, as she argues, in the circumstances of normative uncertainty, the judge cannot simply stick to their guns and insist on their preferred theory, precisely because they are aware of the possibility that it might be the wrong theory. Continue reading "Inescapable Uncertainty and the Judicial Role"
Dec 13, 2022 Hoi KongInternational & Comparative Law
Jeremy Waldron,
Denouncing Dobbs and Opposing Judicial Review, NYU School of Law, Public Law Research Paper No. 22-39 (2022), available at
SSRN.
Professor Jeremy Waldron is perhaps the world’s most influential critic of what he calls “strong judicial review of legislation” (SJRL). (P. 1.) This form of judicial review—found paradigmatically in the United States—gives to courts the final say on the constitutionality of laws that are subject to judicial review. Now, a court in a system of SJRL will, on occasion, decide a case in a way that a critic of SJRL will disagree with. How should such a critic respond to this situation? That is the question that Professor Waldron answers in Denouncing Dobbs and Opposing Judicial Review (Denouncing Dobbs). This SSRN paper (written after the draft opinion of Dobbs v Jackson Women’s Health was leaked but before the decision was published) is a rich exploration of issues in constitutional theory and an enormous contribution to the comparative constitutional law literature.
I begin and end this review with some remarks about Professor Waldron’s contribution to the field of comparative constitutional law. Comparative constitutional law scholars often contrast SJRL with what Professor Waldron calls “weak judicial review of legislation” (WJRL). (P. 7.) Professor Waldron illustrates this contrast through a discussion of the different institutional consequences that would flow from, on the one hand, a court finding a law to be cruel in a system of SJRL (the United States), and, on the other hand, courts arriving at the same finding in systems of WJRL (in the UK and New Zealand). Professor Waldron writes:
In the United States, a finding that a legislated punishment is cruel (and unusual) will lead to the legislation being struck down. In Britain, that finding (or a similar finding that a given legislated punishment is “inhuman”) may lead to a Declaration of Incompatibility, which is likely to be followed by a legislative amendment. In New Zealand, such a finding may lead judges to strain for an interpretation (often a pretty distant one), which is consistent with [section 9 of] the NZ Bill of Rights Act. (Pp. 7-8.) Continue reading "Democratic Constitutionalism"
Dec 12, 2022 David FagundesIntellectual Property Law
James Grimmelmann & A. Jason Windawi,
Blockchains as Infrastructure and Semicommons, __
Wm. & Mary L. Rev. __ (forthcoming 2023), available at
SSRN.
In popular culture, blockchains (to the extent they are understood at all) are associated with cryptocurrency, and following the crypto crash of 2022, increasingly dismissed as part of a classic asset bubble. But legal scholars are more sanguine. They tout the potential of blockchain, or, more prosaically, “distributed ledgers,” to transform private law, from contracts to securities to property. Blockchains are hoaxes or panaceas depending on which source you consult.
James Grimmelmann and A. Jason Windawi’s sparkling essay, Blockchains as Infrastructure and Semicommons, charts a path between these two extremes. It does so by calling attention not to what blockchains can do for law, but rather by focusing on the novel question of what legal theory can tell us about how blockchains work. The essay leverages two influential notions from property—infrastructure and the semicommons—to deliver insights about blockchains as well as an object lesson in the value of looking at distributed ledgers through the lens of legal theory. Continue reading "Blockchains as Technosocial Systems"
Dec 9, 2022 Christina S. HoHealth Law
One source of the cognitive dissonance we feel these days comes from the near-constant demands for individual freedom juxtaposed with the equally pervasive evidence of deep craving for community. Voices from inside and outside the reactionary right invoke autonomy against masking, personal choice in vaccination, and the right to fend off others with guns. This exhausted political rhetoric of liberty disavows any obligations toward one another and threatens bitter backlash against any pro-social claim. This is the discourse we hear, the words on the surface. However, when we look at people’s revealed preferences, we see a different picture. And that is exactly what Wendy Epstein, Christopher Robertson, and their coauthors in their new article, Can Moral Framing Drive Insurance Enrollment in the United States, call us to attend to in health insurance markets. Instead of defaulting to the assumption that we must speak to our selfish fallen selves, we may do better to assume each others’ better generous selves when it comes to, of all things, advertising insurance.
Indeed as the anxieties of this atomized, isolated, every-tub-on-its-own-bottom mentality yawn before us, I find it curious that we don’t see Americans scattering to the winds, toward various individual, idiosyncratic courses of action. If anything, we are all gravitating toward our tribes—ever more polarized communities to be sure, but communities nonetheless. I’m reminded of an earlier quote about the Trump political phenomenon: “It’s Möbius strip politics, Trumpism’s defining oxymoron: a populist elite, a mass movement of “free thinkers” all thinking the same thing.” Continue reading "Health Insurance Sales Pitch: We Are Our Best Selves"
Dec 8, 2022 Josh Gupta-KaganFamily Law
Tarek Z. Ismail,
Family Policing and the Fourth Amendment, 111 Calif. L. Rev. __ (forthcoming 2023),
available at SSRN.
Every year, Child Protective Service (CPS) agencies investigate about 3 million families around the country for alleged neglect or abuse of their children. Under agency policies, all of those millions of investigations include searches of families’ homes. CPS investigators knock on the door (usually unannounced), look in every room of the house, open kitchen cabinets, sometimes inspect children’s bodies, and generally look for any evidence of child maltreatment. Yet CPS agencies rarely seek a warrant, and typically act as if that is unnecessary. (P. 18 & n.86.)
In Family Policing and the Fourth Amendment, Tarek Ismail aptly explains why, notwithstanding current practice, the Fourth Amendment’s normal warrant and probable cause requirements actually do apply to CPS home searches. Nothing in the Fourth Amendment’s text is limited to police investigations, but the Supreme Court has established some exceptions to when a warrant is required for searches beyond criminal investigations. For example, the Court has permitted dragnet searches of every home in any area without individualized suspicion when those searches are limited in nature to meet a public need such as enforcing housing safety codes. (Pp. 23-26.) But the Court has never carved out an exception for CPS searches, which begin with allegations to a state child protection hotline that a specific parent (or guardian) is neglecting or abusing their children. (Pp. 47-49.) And CPS searches are quite invasive, featuring inspections of “a family’s most intimate spaces – their bedrooms, bathrooms and kitchen cabinets.” (P. 55.) Continue reading "Ending CPS home searches’ evasion of the Fourth Amendment"
Dec 7, 2022 Roger M. MichalskiCourts Law
Electronic filing has been a mainstay of federal practice for twenty years. It makes filing more convenient and cheaper than regular mail or personal delivery. The Federal Judicial Center (“FJC”) learned from federal clerks of court that pro se litigants sometimes can use the federal courts’ Case Management/Electronic Case Files (CM/ECF) system and sometimes not. In response to a request by the federal rules committee’s working group on pro se electronic filing, the FJC conducted this study of where, when, and how pro se litigants can electronically file.
The FJC reached out to seventy-nine [out of 190] clerks of court, all but one of whom agreed to participate in [the] study. Using “loosely structured interview[s]” the FJC asked each a range of questions, including whether pro se litigants, prisoners, and unrepresented bankruptcy filers (e.g. pro se creditors) can file electronically; what they must do to become electronic filers; whether pro se litigants can initiate cases directly in CM/ECF; whether the court ever accepts filings by email, fax, or electronic drop box; signature requirements; the existence, location, and use of physical drop boxes; and how they time-stamp drop box items.
The main contribution of this article is to provide a richly textured, nuanced, nitty-gritty account of electronic filings by pro se litigants. It takes time and care to examine the differences between submitting a document to a court and filing a document; between initiating a case and filing in an existing case; between NextGen CM/ECF and previous generation CM/ECF; among civil, criminal, and bankruptcy cases; and between prisoner and non-prisoner pro se litigants. Continue reading "The Swift Completion of Their Appointed Rounds"
Dec 6, 2022 Elizabeth JohCriminal Law
It’s 2022. A patient arrives at an emergency room and says she needs care for an unexpected miscarriage. During her intake procedures, a nurse, suspecting that the miscarriage was the result of a self-managed abortion, calls over a police officer there accompanying another patient. Nearly all abortions are now illegal in the state. When the police officer starts to ask questions, the patient says she wants to consult a lawyer. The nurse, now treating the patient, suggests it would be “best” if she answered the questions. So she does.
This hypothetical isn’t part of Cops in Scrubs, a recent article by Ji Seon Song, but it very well could be. As Song has written about before, the emergency room and the hospital bed are not usually thought of as places for policing, but they should be. Police routinely spend time in places where people in situations of extreme vulnerability sometimes find themselves also targets of criminal investigation. And doctors and nurses frequently act as willing partners to the police. That is a problem, as Song points out, because their positions of authority and expertise blur the lines of aid and coercion for patients who find out they are also suspects. Continue reading "Healthcare as Policing"
Dec 5, 2022 Eyal ZamirContracts
Much of contract law—including the doctrines pertaining to contract formation and to defects in the contracting process (such as mistake and duress)—revolves around the question of whether the parties have expressed a valid will or consent. Drawing the line between valid and invalid consent preoccupies other spheres of law as well, such as tort law (for example, in the context of consent to a medical treatment) and criminal law (e.g., the distinction between voluntary sex and rape).
In contract law, special challenges are posed by the fact that nowadays the great majority of contracts (some would say 95% to 99% of the written contracts) are made through standard forms, where one party—be it a consumer or a commercial customer—does not meaningfully participate in setting the terms of the transaction. In fact, practically no one reads the terms of the standard forms before expressing his or her consent. This is true not only when signing a form in a bank or a store (where reading the contract before signing it may upset the people waiting in line), but also when contracting online in the comfort of one’s home or office (Bakos, Marotta-Wurgler and Trossen 2014). Not only people do not actually read contracts before signing or clicking their consent; even if they wanted to, there is practically no way they could read all the contracts and other types of information they are constantly bombarded with by commercial firms, governmental agencies, and other institutions (Ben-Shahar and Schneider 2014).
How can legal policymakers, including courts, hold that people consent to terms that they do not (and practically cannot) read before making the contract? Joanna Demaree-Cotton and Roseanna Sommers’ experimental study in Autonomy and the Folk Concept of Valid Consent may provide an interesting answer to this lingering question. The authors distinguish between people’s capacity to make free and autonomous decisions, and the exercise of this capacity. Even when people have the capacity to rationally make a decision that reflects their true will, they do not always use this capacity. Should a consent given by a person who has the capacity to make a free and autonomous decision be considered valid, or should it be considered valid only if the person has actually exercised that capacity? Continue reading "Commonsense Consent and Contract Law"
