Monthly Archives: September 2022
Sep 19, 2022 Elizabeth ChamblissLegal Profession
Do lawyers engage in racial discrimination in client selection? This is the primary question Brian Libgober asks in his article, Getting a Lawyer While Black: A Field Experiment. The article presents a series of field experiments testing private practitioners’ responses to emails from potential clients with Black- and white-sounding names. In the first experiment, based on a sample of 96 criminal lawyers in California, the response rate to emails from Black-sounding clients seeking DUI representation was 19%, compared to 40% for white-sounding clients. (P. 76.) The quality of lawyers’ responses also varied in response to the client race signal. For instance, in response to otherwise identical requests, “Brad McCarthy” received an email describing California law, how it applied to his case, and possible legal strategies, whereas “Darnell Jackson” received one that said only “who referred you?” and another that said “Call our office at XXX-XXX-4DUI for an appointment. YOU HAVE JUST TEN DAYS TO CHALLENGE YOUR SUSPENSION.” (P. 78.)
Though race was the primary factor of interest, the first experiment also found significant differences in lawyers’ responses to client gender, with men receiving 50% more responses than women (37.5% versus 23%) and white men receiving the highest percentage of responses (50%). (PP. 76-77.) Interestingly, signals about client income (around $40,000 versus $80,000) were not significant in the overall sample; however, signaling higher income was significantly harmful for women. The response rate for higher-income women was only 16%, tied for lowest with Black women and Black, lower-income clients. (P. 77.) These income effects are “hard to view as a rational response to incentives.” (P. 79.) The lawyers in the first sample were “mostly white and male.” (Pp. 77-78.) Continue reading "Darnell, Latoya, Brad, and Laurie: Lawyers’ Responses to Email Requests for Representation"
Sep 19, 2022 Elizabeth ChamblissLegal Profession
Do lawyers engage in racial discrimination in client selection? This is the primary question Brian Libgober asks in his article, Getting a Lawyer While Black: A Field Experiment. The article presents a series of field experiments testing private practitioners’ responses to emails from potential clients with Black- and white-sounding names. In the first experiment, based on a sample of 96 criminal lawyers in California, the response rate to emails from Black-sounding clients seeking DUI representation was 19%, compared to 40% for white-sounding clients. (P. 76.) The quality of lawyers’ responses also varied in response to the client race signal. For instance, in response to otherwise identical requests, “Brad McCarthy” received an email describing California law, how it applied to his case, and possible legal strategies, whereas “Darnell Jackson” received one that said only “who referred you?” and another that said “Call our office at XXX-XXX-4DUI for an appointment. YOU HAVE JUST TEN DAYS TO CHALLENGE YOUR SUSPENSION.” (P. 78.)
Though race was the primary factor of interest, the first experiment also found significant differences in lawyers’ responses to client gender, with men receiving 50% more responses than women (37.5% versus 23%) and white men receiving the highest percentage of responses (50%). (PP. 76-77.) Interestingly, signals about client income (around $40,000 versus $80,000) were not significant in the overall sample; however, signaling higher income was significantly harmful for women. The response rate for higher-income women was only 16%, tied for lowest with Black women and Black, lower-income clients. (P. 77.) These income effects are “hard to view as a rational response to incentives.” (P. 79.) The lawyers in the first sample were “mostly white and male.” (Pp. 77-78.) Continue reading "Darnell, Latoya, Brad, and Laurie: Lawyers’ Responses to Email Requests for Representation"
Sep 16, 2022 Reuel SchillerLegal History
I’m sitting at our kitchen table in Brooklyn. It’s the mid-1970s. I’m not sure how the subject of Pittsburgh’s air quality came up, but my mother, who I’m sure had never been to Pittsburgh, was quick with an anecdote. “Did you know that Breyers Ice Cream doesn’t sell its famous vanilla bean ice cream there? People won’t buy it because they think the flecks of vanilla are little particles of coal dust that have gotten in their ice cream.” My mother was a notorious fabulist, and a morning spent poking around the internet suggests that this story was made up. Nonetheless, it lodged in my ten-year-old brain, shaping my image not just of Pittsburgh, but of the entire rustbelt. Imagine my surprise, fifteen years later, when I spent ten days there as a paralegal for a giant New York law firm, reviewing documents in our client’s offices, high up in the U.S. Steel Building. Not only did the air quality seem fine, but the city had all the accoutrements of late-1980s yuppie affluence: attorneys bedecked in pink tailored shirts and absurd shoulder pads, valet dry cleaning, Au Bon Pains everywhere, and all those damn flourless chocolate tortes.
I have no doubt that Gabriel Winant, the author of The Next Shift: The Fall of Industry and the Rise of Health Care in Rust Belt America, would be able to guess the type of product our client produced. It was a pharmaceutical company. At the center of Winant’s fantastic book is the question suggested by my brief encounter with Pittsburgh: how did it change from the quintessential industrial city to one with an economy sustained by healthcare and all its associated businesses? Of course, lurking not far under the surface of that question is a more fundamental one. How did large swaths of the American economy move from high wage, unionized industries that grew the white middle class to service industries with polarized wage structures that have generated economic inequality, particularly along racial and gendered lines? Continue reading "Law and the Structure of the New Working Class"
Sep 15, 2022 Robin KarJurisprudence
Many philosophers of the private law could profit from a close read of a new article by Professor Larissa Katz entitled Equitable Remedies: Protecting “What We Have Coming to Us.” The article draws a distinction between “what is ours” (the content of which is defined by various bodies of private law like property and contract, according to Katz) and “what we have coming to us” (which is, roughly, what we would have if we were to have full access to what is ours, without obstruction, diversion, or expropriation from anyone with notice).
According to Katz, private law obligates parties to respect what is ours, in part by offering legal remedies that allow us to hold others accountable to pay for losses associated with their failures to meet those obligations. Private law gives us normative powers, which can help us define what is ours, thus helping us to plan our lives and exercise our liberties. There is, however, always a gap between what is ours and what we have coming to us because enjoyment of what is ours sometimes depends on how others act or exercise their normative powers. This gap cannot always be closed by standard legal remedies, insofar as they only compensate for losses. Professor Katz’s thesis is that many equitable remedies from diverse areas of private law can be understood in a unified manner as seeking to close that gap by preventing others (sometimes even third parties who are not subject to standard legal remedies) from obstructing, diverting, or expropriating what is ours, thereby protecting what we have coming to us. Continue reading "An Interest In What We Have Coming to Us"
Sep 14, 2022 Michael W. CarrollIntellectual Property Law
In a memorable skit on Saturday Night Live, Pete Davidson-as-Eminem inquires about what a non-fungible token (“NFT”) is and why they are selling for so much money. In this succinct article, The Treachery of Images: Non-Fungible Tokens and Copyright, Professor Guadamuz admirably answers the first question and explains why the second one is a puzzle. With respect to the market for NFTs, he explains why those using copyright law to capture the economic value in this emerging market often misunderstand how distinct the exclusive rights under copyright are from ownership of a non-fungible token on a blockchain.
Based in the United Kingdom, Professor Guadamuz applies U.K. copyright law to determine whether and when the process of creating and selling an NFT may (or may not) implicate copyright rights. For the most part, this analysis tracks with that under U.S. law, but to readers based in the United States, this aspect of the article also yields some comparative insights about when and why the differences between U.S. and U.K. copyright law may matter. Continue reading "Owning Metadata: Dispelling Copyright Misunderstandings About NFTs"
Sep 13, 2022 Ann E. TweedyEquality
Cree author Billy-Ray Belcourt’s A History of My Brief Body is a visceral and devastating account of the effects of colonialism and anti-queer animus on one’s body and psyche. A memoir in the form of a series of essays, the book engagingly sets forth vignettes from the author’s life interspersed with a meta-analysis of how instances of oppression—both personally experienced and witnessed—spring from colonialism and anti-queer animus, which operate as a combined axis of oppression or separately depending on the circumstances.
As a poet and as a non-Native scholar of tribal law and federal Indian law, I am constantly trying to better understand the effects of colonialism. Belcourt’s analysis is unique in the way that it melds personal experiences with discourses of philosophy and literary criticism and in its unflinchingness and insistence on truth and accountability. I highly recommend this book for anyone that wants to understand the effects of colonialism or anti-queer animus in the Americas. While Belcourt is Canadian, I found that the work very much resonated with my understandings of colonialism and anti-queer animus in the United States as well. Continue reading "Colonialism and Anti-Queer Animus in Fisheye and Macro Focus"
Sep 12, 2022 Maureen CarrollCourts Law
Recent legal scholarship has shed needed light on the vast universe of litigation that occurs without lawyers. Large majorities of civil litigants lack representation, even in weighty matters such as eviction and termination of parental rights, raising a host of issues worthy of scholarly attention. For example, one recent article has examined racial and gendered effects of the lack of constitutionally guaranteed counsel in civil matters, and another has shown that judges tend not to reduce the complexity of the proceedings for the benefit of unrepresented parties.
In Judging Without a J.D., Sara Greene and Kristen Renberg add an important dimension to this discussion by examining the phenomenon of judges who have no legal training before they take the bench. Thirty-two states allow a person without a law degree to become a judge, including seventeen that allow non-lawyer judges to adjudicate eviction cases. Because of the high rates of pro se litigation, many litigants in these states “experience a courtroom in which often no one, not even the judge, is aware of the law.” Worse, some find that “the one person in the courtroom who is aware of the law is the attorney for the more powerful party (such as a landlord).” Continue reading "Non-Lawyer Judges in Devalued Courts"
Sep 11, 2022 Michael Froomkinzetasec
If you are seeing this post, zetasec.jotwell.com is on the new server.
The post New Server appeared first on Jotwell: Zeta-Section. Continue reading "New Server"
Sep 10, 2022 JotwellJotwell
DNS is pointing to Nexcess.
Sep 9, 2022 Erin F. DelaneyInternational & Comparative Law
As we begin a new semester, during what seems to be a never-ending pandemic, with cultural and political tensions high, it is reinvigorating and humbling to be reminded of the privilege and responsibility we hold as members of the academy. In articles that dovetail beautifully, both Vicki Jackson and Elisabeth Alber highlight the influence and role of universities as institutions central to “both the democratic and the constitutionalist components of democratic constitutionalism” (Jackson at 159) and, in some circumstances, to the development of “positive peace,” or a “harmonised integrated society” itself (Alber at 53).
In her article, Knowledge Institutions in Constitutional Democracies, Vicki Jackson defines knowledge institutions broadly, including universities, the free press, certain government administrative offices, NGOs, and even courts and legislatures, in some instances. If, in the words of Tom Ginsburg and Aziz Huq, “the practical operation of liberal democracy requires a shared epistemic foundation,” then that epistemic base (or capacity) must be protected; if governments withhold or distort information to produce “correlated, population-wide errors,” democracy itself is at risk. Threats—whether political, economic, technological, or social—must be identified and addressed. Jackson is careful to note that legal protections to “secur[e] the foundations of knowledge institutions” (P. 163) are likely to vary depending on the institution in question. But she calls for close attention to the “knowledge ecosystem” of any individual state as something requiring “constitutional protection and effective self-monitoring” (P. 162), outlining many open questions and thus a robust research agenda for scholars. (Pp. 219-21.) Jackson’s article reminds comparative constitutional scholars to engage with the foundational functional underpinnings of constitutionalism—a call that requires contextualized and nuanced analysis. Continue reading "Scientia Instituta Potentia Est"
