Monthly Archives: February 2022
Feb 15, 2022 Shubha GhoshInternational & Comparative Law
Comparative and international law scholarship places legal doctrines in context. Whether that context is helpful often depends upon one’s own disciplinary and normative commitments. Professor Fei-Hsien Wang’s Pirates and Publishers: A Social History of Copyright in Modern China challenges the view that a historic distrust of property rights undermines current efforts to import intellectual property law to the People’s Republic of China. The historical context she narrates is the main reason why this book is one I like lots. Even more pleasing is how Professor Wang’s book provides a new comparative and international context for understanding the possibilities for interdisciplinary scholarship itself.
Interdisciplinary context can fail, we are reminded, when it obscures the evolution of legal institutions. Professors Shyamkrishna Balganesh and Taisu Zhang make this point in their review of Professor Wang’s book by bringing to the foreground a critique from legal internalism. As they explain, legal internalism “refers to the internal point of view that regular participants in a legal practice usually develop toward it that sees it as normative, epistemologically self-contained, and logically coherent.” According to Balganesh and Zhang, Professor Wang’s social history of copyright overemphasizes social context and does not pay adequate attention to the evolving logic of legal doctrines, courts, and legal institutions. The Balganesh-Zhang review is also a work I like lots. In fact, the interplay of the book and the review increases my enjoyment of each, highlighting the importance of both the external contexts for and internal logic of copyright. Continue reading "A Tribute That Turns One Inside-Out"
Feb 14, 2022 Carl ColemanHealth Law
Both legal and ethical frameworks governing the practice of medicine typically emphasize the importance of “putting patients first.” In a thoughtful new article, Richard Saver shows how this often-unquestioned maxim has allowed the medical profession to “too easily discount community health considerations.” (P. 926.) After identifying a variety of ways in which physicians’ patient-centered ethos has led to the “externalization of health risks to the general public” (P. 928), he offers suggestions for “making community physicians’ public health duties more cognizable and influential.” (P. 929.)
As Saver demonstrates, physicians sometimes use the mantra of putting patients first as a justification for actions that threaten community welfare. For example, when the COVID-19 pandemic worsened in March 2020, some physicians continued to perform elective surgical procedures, citing their duties to patients as a justification for ignoring public health advice to conserve hospital resources. Similarly, physicians have appealed to patient interests as a justification for ignoring public health guidance to limit the prescription of broad-spectrum antibiotics and, until recently, for prescribing large amounts of opioids despite the foreseeable risk that leftover pills would be diverted to non-patients. Physicians’ patient-centered orientation has also led them to resist calls to use medical encounters as an opportunity to promote public health messages. For example, while many medical groups have urged physicians to play a greater role in combatting gun violence, most physicians rarely talk to patients about firearms, perceiving such discussions “as beyond their professional scope of practice” and potentially damaging to the physician-patient relationship. (P. 964.) Continue reading "The Hidden Public Health Consequences of “Putting Patients First”"
Feb 11, 2022 Fred O. Smith, Jr.Courts Law
Danielle Keats Citron & Daniel J. Solove,
Privacy Harms, 102
B.U. L. Rev. _ (2022).
In Privacy Harms, Danielle Citron and Daniel Solove identify a central tension in the regulation of privacy in the United States. On one hand, federal law relies on litigation to address systemic depravations of privacy that, in the aggregate, compromise democracy, autonomy, and safety. On the other hand, federal litigation focuses on whether a specific litigant has experienced a concrete and particularized injury. Without demonstrating that the complainant has faced cognizable harm, there is no room to air the ways that undeterred, cumulative violations rip at the ties that bind us as a society.
The authors identify at least two ways that this judicial insistence on individualized injuries can facilitate systemic privacy harms.
Most directly, because courts sometimes fail to confer standing on plaintiffs for “mere” statutory violations, companies are sometimes not properly incentivized to comply with the law. The authors highlight the Supreme Court’s recent opinion in TransUnion v. Ramirez. Plaintiffs sued a credit reporting agency under the Fair Credit Reporting Act, alleging it wrongly accused them of being potential terrorists. The Court concluded that the plaintiffs were not harmed, and did not have standing, except in instances where the false information had been distributed to third parties. “No concrete harm, no standing,” the Court reasoned. Missing from this doctrinal picture is Congress’s systemic goal of encouraging credit reporting agencies to take reasonable steps to guard against inaccurate information on credit reports. Continue reading "No Harm, No Foul? Privacy Law and Judicial Remedies"
Feb 10, 2022 Josh Gupta-KaganFamily Law
Sarah H. Lorr,
Unaccommodated: How the ADA Fails Parents, 110
Calif. L. Rev. __ (forthcoming 2022), available at
SSRN.
The child protection legal system is supposed to work towards the reunification of parents and children in foster care through individualized services to help parents raise their children safely. But that legal system has long been criticized for frequent and severe invasions into the family integrity rights of parents with disabilities and their children, treating parental disabilities as grounds for permanent separation instead of individual characteristics to be accommodated. Several years ago, it seemed that the law was turning. In 2015, the U.S. Departments of Health and Human Services and Justice issued joint guidance stating that the Americans with Disabilities Act (ADA) applied to parents with disabilities in child protection cases. The joint guidance urged states to more effectively help reunify families with a disabled parent and prevent their separation in the first instance. A small number of state courts issued decisions requiring truly individualized accommodations for parents with disabilities. But those cases remain outliers. Sarah H. Lorr has done the child protection legal field an excellent service by outlining just how far it has left to go in her forthcoming article Unaccommodated: How the ADA Fails Parents.
Since the 2015 guidance, state courts have only inconsistently applied ADA protections to parents with foster care cases. Lorr documents how the largest set of reported state appellate decisions since the 2015 guidance “remain completely hostile to parents raising discrimination-based claims under the ADA,” (P. 38), often directly contradicting the federal guidance. (P. 39.) Nor do federal courts provide a meaningful remedy. As Lorr shows, a variety of doctrines – Rooker-Feldman, various abstention doctrines, and collateral estoppel – have made federal court vindication of the rights of parents with disabilities very difficult to obtain. (Pp. 40-49.) Continue reading "Accommodating Parents"
Feb 9, 2022 Pat GudridgeConstitutional Law
In their irrepressibly interesting essay, Samuel Bray and Paul Miller argue hard against the idea that notions of fiduciary duty writ large ought to be welcomed within the analytical apparatus of United States constitutional law. They worry about ensuing anachronism – indeed, repeatedly underscore this concern.
The 1787 constitution may be roughly contemporary with the law of trusts, for example. In the fiduciary notions we now try to group abstractly, however, much that is important dates from nineteenth and twentieth century developments – plainly coming too late to the party to figure as constitutional contemporaries. Bray and Miller concede that there is a very old practice of treating classical notions of loyalty and disinterest and the like as adding emphasis – maybe even urgency – to constitutional discussion. They do not deny the existence of Plato and Cicero, Locke and Hume, or their gangs of adherents. “But this language offers moral guidance and political wisdom,” they write, “not enforceable duties with remedies that can be awarded by courts.” (P. 1483.) Surely we can all agree with this. Plato and Benjamin Kaplan were and are in no way pursuing the same project. Bray and Miller lower their boom. Continue reading "Mere Metaphor Is Not the Big Game"
Feb 8, 2022 Donal NolanTorts
Negligence poses special challenges for legal scholars and practitioners. The broad sweep of the cause of action is made possible by reliance on concepts that operate at a high level of abstraction. This explains why negligence is so adaptable, and hence so adept at responding to new social problems. But the use of abstract concepts also poses problems of understanding, and produces high levels of doctrinal instability. Few areas of negligence law illustrate the difficulties more graphically than the issue generally referred to in the US as ‘proximate cause’, and in the Commonwealth as ‘remoteness’ or ‘scope of liability’.
When faced with the difficulties that beset proximate cause, it is tempting for the torts scholar to throw up her hands in despair, or to dismiss the need for conceptual analysis, on the ground that ‘It’s all policy anyway’. But Mark Geistfeld is having none of it, and in this article, Proximate Cause Untangled, he sets himself the tough task of ‘untangling’ the doctrine. His analysis is illuminating and thought-provoking, and provides a plausible explanation for key features, not only of American law, but of the law of many Commonwealth jurisdictions. And while his core thesis is straightforward, his argument is so richly layered that even readers who are not persuaded by that thesis are bound to find much of value in his contribution. Continue reading "Making Sense of Proximate Cause"
Feb 7, 2022 Eric J. MillerCriminal Law
Michelle Madden Dempsey is one of the foremost contemporary analytic philosophers of criminal law, someone whose work engages in deep and important ways with issues of power and oppression located in and expressed through the criminal process. In past work, she has explored the ways in which the institutional role of the prosecutor operates to entrench the victimization of survivors of sexual violence. Another line of inquiry, and one to which this work returns, is the nature of consent in the criminal law and in moral theory, especially consent to sexual relations.
In her article, Coercion, Consent, and Time, Dempsey engages with the #MeToo/#TimesUp movements to “provide conceptual tools for making sense of (and understanding the limits of) three distinct responses commonly offered by those accused of past sexual misconduct: ‘But that used to be okay!’ ‘But everybody used to think that was okay!” and ‘But that was so long ago!’” In separating out these three responses—the claims of justification (I was permitted to do it), of excuse (it was impermissible, but I reasonably believed I was permitted to do it), and of accountability (I knew it was wrong when I did it, but the so much time has passed that I cannot now be held to account)—Dempsey taps into important issues for criminal theory and law more generally. Of particular interest is Dempsey’s focus on the importance of the passage of time. Continue reading "Time’s Wounds: The Criminal Process’s Accounting for Past Wrongs"
Feb 4, 2022 James TierneyCorporate Law
Emily Winston,
Unequal Investment: A Regulatory Case Study,__
Cornell L. Rev. __ (forthcoming), available at
SSRN.
Between rising asset prices, high returns on investment, and yawning wealth gaps, the wealthiest equity investors have had a better run than most of us. What, if anything, is to be done about that? Should legal rules governing market structure reflect egalitarian commitments? Securities law scholars have considered this as an “investor protection” problem. A small but vocal line of thought has envisioned democratizing finance and reducing inequality by tinkering with legal rules like the “accredited investor” standard, or funds mediating access to private markets.
A largely unacknowledged assumption of this work is that egalitarian goals can be achieved by liberalizing access to risky financial assets. Professor Emily Winston’s article Unequal Investment: A Regulatory Case Study, forthcoming in Cornell Law Review, unpacks that assumption. She offers an important corrective to the intuition that fighting inequality involves loosening market-access restrictions and letting more investors share in the gains. Continue reading "Securities Law’s Effects on Wealth Inequality: The Case of Asymmetric Investment Opportunity"
Feb 3, 2022 Nancy KimContracts
Roseanna Sommers,
Contract Schemas (Jul. 8, 2021), available at
SSRN.
There are some things that we know about contracting behavior even without the benefit of empirical studies. Do we really need studies to prove that nobody clicks on a hyperlink to read Terms of Service when it is something that we ourselves have never done? Do we really need more empirical studies to show us that most people wouldn’t understand the fine print even if they did? It is our everyday experience that informs our understanding of contracting behavior, not necessarily our expertise or knowledge of doctrine.
But sometimes, our expertise may cloud our thinking so that we can no longer put ourselves in the shoes of the layperson, and what we assume about contracting behavior turns out to be wrong, incomplete, or misleading. For that reason, Roseanna Sommers’s article Contract Schemas should prove to be a useful resource for those who write on consumer contracts and consumer contracting behavior. Sommers’s article is a review of the literature involving “what ordinary people think is happening when they enter into contractual agreements.” (P. 2.) It reinforces what we may already have suspected about some things and reminds us that some of what we know and assume others know is, in fact, not universally known. Because Sommers includes somewhat obscure sources as well as more familiar studies, it is a useful overview of the literature of the psychology of consumer contracts for both newcomers and those already familiar with the field. Continue reading "Consumer Beliefs About Contracts"
Feb 2, 2022 Richard PierceAdministrative Law
Aram A. Gavoor & Steven A. Platt,
In Search of the Presumption of Regularity, __
Fla. L. Rev. __ (forthcoming 2022), available at
SSRN.
The Supreme Court has often invoked the presumption of regularity and its first cousin, the presumption of good faith. Taken together the two presumptions instruct courts to assume that the government has used the proper procedures to take an action that is properly motivated. Neither the Court nor scholars have engaged in any systematic effort to define the two presumptions, justify their existence, describe their scope and uses, or describe the evidence that is required to rebut the presumptions. Aram Gavoor and Steven Platt’s new article In Search of the Presumption of Regularity undertakes that task at a time when it is particularly important to understand the presumptions.
The Supreme Court often says that a court should apply the presumption of regularity and the presumption of good faith “except in the rare case” in which there is powerful extrinsic evidence of wrongdoing by the government. It is fair to question the Court’s characterization of the circumstances in which there is reason to doubt the applicability of the presumptions as “rare” today. Over the last few years, both the public and the courts have had many occasions to doubt the rarity of government actions that were taken without using proper procedures and for undisclosed inappropriate reasons. As I have detailed elsewhere, the Supreme Court has responded to this troubling trend by increasing the scope and intensity of the duty to engage in reasoned decision making, but it has not engaged in any systematic attempt to describe the presumptions, their justifications, their scope, or their effects. Continue reading "A Timely, Thorough, and Provocative Evaluation of the Presumption of Regularity"
