Monthly Archives: October 2022
Oct 20, 2022 Angela BanksLexImmigration
In September of 2021, Haitian migrants, attempting to return to a migrant camp in Del Rio, Texas, were met with U.S. Border Patrol agents on horseback with whips. The Haitian migrants had gone to Mexico to obtain food for their families, as there was insufficient food at the camp. Upon their return, Border Patrol agents attempted to push the Haitian migrants back across the Rio Grande to Mexico. One viral image showed a Border Patrol agent on horseback holding a whip and grabbing a Haitian migrant by the back of his shirt. Kit Johnson’s recent article, Women of Color in Immigration Enforcement, raises interesting questions about whether or not the growing number of women of color in immigration enforcement could positively impact the “use-of-force culture in the federal immigration enforcement context.” (P. 997.)
Johnson’s article introduces new demographic data about immigration enforcement officers that demonstrates that the majority of female immigration enforcement officers are women of color. In light of this new information, Johnson introduces a research agenda to examine the impact and experiences of women of color within immigration law enforcement. While scholars have explored the experience and impact of Latinx immigration enforcement officers, the experience and impact of women of color specifically has not been explored. Now that more granular demographic data is available, women of color can be the focus of analysis. Continue reading "Immigration Enforcement in the Twenty-First Century"
Oct 19, 2022 Laurel TerryLegal Profession
In 2021, when the chair of the International Bar Association’s International Trade in Legal Services Committee (IBA ITILS) recommended that our committee prepare an information paper on climate change, my first reaction was, “isn’t this a bit far afield from lawyer regulation and ITILS topics?” After reading the available resources, including Professor Flatt’s article entitled Disclosing the Danger: State Attorney Ethics Rules Meet Climate Change, I became convinced that climate change is relevant to lawyer regulation and that this is a topic that legal ethics and legal profession scholars need to keep on their radar screens.
Professor Flatt, who is primarily an environmental law scholar, serves as the Co-Director of the University of Houston Law Center’s Environment, Energy, and Natural Resources Center. Disclosing the Danger reviews recent climate change developments and provides legal ethics scholars with important perspectives about the intersection of climate change and lawyer regulation issues. Continue reading "Is Climate Change Really a Lawyer Regulation Issue?"
Oct 18, 2022 Anders WalkerLegal History
Nicholas Guyatt, The Hated Cage: An American Tragedy in Britain’s Most Terrifying Prison (2022).
Nicholas Guyatt’s new book The Hated Cage tells the riveting tale of an English prison named Dartmoor that held thousands of Americans captive during the War of 1812. That war, once dismissed as a folly, has drawn increasing scholarly interest over the past decade, leading historians like Alan Taylor, Donald Hickey, and Nicole Eustace to posit that it was central to American nation-building at the time. Guyatt adds to this tale, taking us far across the Atlantic to a dreary dungeon where thousands of Americans found themselves constructing their own society from within the confines of cold granite walls.
The story is fascinating. Guyatt provides a glimpse into early 19th century penology and brings to life the chaotic world of trans-Atlantic navigation during the Early Republic when American sailors, many of them privateers, skirted British blockades and hunted British merchant vessels from the Caribbean to the French coast. England, conversely, struggled to find space for all the Americans that it captured with its massive, omnipresent navy. To meet said demand, England built Dartmoor Prison, an impressive penal complex in the Duchy of Cornwall. Continue reading "“Was Every Prisoner a Loyal American?”: The Startling Tale of The Hated Cage"
Oct 17, 2022 Brian BixJurisprudence
Paul Miller offers a manifesto for an approach to private law—more precisely, for theories of doctrinal areas within private law–that is both traditional and quite new. In his new article, The New Formalism in Private Law, he names the approach, “New Private Law Theory” (and I will follow his practice of abbreviating it “NPL”). It is grounded on a rejection of the sort of reductive, cynical, and skeptical approaches to law and legal rules associated with American Legal Realism, and it promotes a more internal (less instrumental) understanding of law.
Miller offers the following as the essential positive claim of NPL. “[P]rivate law contributes to the law’s wider essential function: providing practically reasonable normative guidance to its addressees through authoritative resolution of conflict and coordination issues that face a political community, thereby enabling the community to realize its aspirations to legality.” (P. 178, emphasis omitted.) NPL focuses on both form and substance, and on both the institutional nature and the normative claims of (private) law: i.e., that “legal systems are historically iterated, constructed normative systems, and that these systems claim practical authority over their addressees.” (P. 179.) Continue reading "The New Formalism"
Oct 14, 2022 Graeme DinwoodieIntellectual Property Law
In recent years, the Trademark Trial and Appeal Board has increasingly relied on the so-called “failure to function” doctrine to reject applications to register marks suffering from a number of quite different deficiencies. But all these varied deficiencies are said to prevent the putative marks from identifying the source of the products to which they are affixed, that is to say, from functioning as marks. The doctrine’s flexibility (and perhaps its opaqueness) has caused many scholars (most notably, Alexandra Roberts) to embrace its capacity both to reconfigure what they perceive as unduly generous approaches to trademark registration and to ensure that validity determinations take account of the context in which marks are used.
In Failure to Function and Trademark Law’s Outermost Bound, an excellent law review note, Lucas Daniel Cuatrecasas carefully and critically catalogues the different strands of failure to function case law at the TTAB, demonstrates the inconsistencies in its application by the Board, and offers a creative reform that highlights the under-appreciated multivalence of trademark law. Cuatrecasas’ organization, and careful dissection, of TTAB decisions on the doctrine is invaluable. But the reform proposal that derives from this analysis is even more illuminating. Continue reading "Making Failure To Function A Normative Assessment"
Oct 13, 2022 Katharine YoungInternational & Comparative Law
The political and conceptual disagreements of the past are never quite buried; their excavation can do much to inform the present. So much is true in human rights, as demonstrated by an illuminating new collection on Social Rights and the Politics of Obligation in History, edited by Steven L.B. Jensen and Charles Walton. The book draws out the debates and positions taken with respect to economic and social rights, from a long history of medieval Christendom in Europe to indigenous peoples in South America and Africa, and to the 20th century attempts at international distillation exemplified by the Universal Declaration of Human Rights, the human rights treaties, and beyond. This broad history is accompanied by a complex understanding of obligation – religious, moral, cultural, social, legal–which helps deepen our understanding of human rights.
The thesis of the book, with sixteen robust and varied chapters, is twofold. First, the history of human rights has been distorted by the neat chronology of generations, whereby “second generation” rights to social security, education, food, health care, housing, and labor protections, succeeded the first generation of civil and political rights, with only the initial generation offering a mature, serious, and enforceable version of what gets to be labelled human rights. (Later environmental and collective rights have often been termed the “third generation” of human rights, with even more distance; a “fourth generation”, focused on new technologies, has also been posited.) Here, the contributors contest both the chronology and the neat categorizations themselves. Continue reading "Social Rights and the Morals of History"
Oct 12, 2022 Edward DoveHealth Law
In their recently published article entitled Confidentiality and Public Interest Disclosure, Paul Snelling and Oliver Quick make a persuasive case for how existing healthcare professional regulation in the UK fails to provide clear standards regarding when the duty of confidentiality may lawfully be set aside on the basis of public interest. This regulatory lacuna should trouble patients and the broader public alike. It creates uncertainty for professionals engaged in the health practices a patient may encounter, and it clearly is of concern to professionals, too: Snelling and Quick note that the British Medical Association (the registered trade union for doctors in the UK) has received more queries relating to confidentiality than other areas of ethical concern.
What is going on here, and how do Snelling and Quick advance their observation to point out such problematic anomalies in the healthcare regulatory environment? In what follows, I summarise and engage with their approach and key findings, concluding with several thoughts about future research paths to further explore how and why guidance for healthcare professionals suffers from poor quality, at least insofar as it concerns confidentiality. Continue reading "Under What Circumstances May a Healthcare Professional Disclose Patient Information in the Public Interest? Few Answers to be Found in Guidance for Healthcare Professionals"
Oct 11, 2022 Kali MurrayEquality
Renee Nicole Allen’s From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy is an important law review article. From Academic Freedom performs three valuable functions.
First, Allen outlines how legal institutions seek “to cancel” black women law professors by failing to legitimize them as public figures within the law school. Allen identifies what she terms “tools of cancellation” including dysfunctional benevolence and intentional microaggressions, as well as the responses of self-silencing and sidelining that black women law professors employ to navigate these tools of cancellation. Allen consolidates existing scholarship on these subjects. What makes From Academic Freedom powerful is the ways she employs these novel frames together to describe how these actions work together to silence black women law professors.
As Allen describes this process of cancellation, she then introduces her second innovation, her claim that law school functions as a white space that enforces white norms. Here, I want to place Allen’s work squarely within the burgeoning field of property, race and the law. Recent property theory has engaged a broad, multi-disciplinary theory in legal geography, sociology, history, psychology, with space, which can broadly be described as an abstract way to describe the physical dimension or characteristics of a location, and place, by contrast, consists of those spaces imbued with social meaning built through site-specific engagement and memory. Continue reading "All of Us Are Brave"
Oct 10, 2022 Linda S. MullenixCourts Law
William S. Dodge, Maggie Gardner, & Christopher A. Whytock,
The Many State Doctrines of Forum Non Conveniens, 72
Duke L.J. __ (forthcoming 2023), available at
SSRN.
If there is a topic in the whirlwind course that is now Civil Procedure that law professors give relatively short shrift to, it is the doctrine of forum non conveniens. Sandwiched among personal jurisdiction, venue, and subject matter jurisdiction, forum non conveniens is the fly-over country of procedure land. Procedure teachers typically have enough time to hit the highlights: Gulf Oil Co. v. Gilbert and Piper Aircraft v. Reyno. This cursory exploration of forum non conveniens usually ends with the passing observation that states, too, have their own doctrines of forum non conveniens.
Dodge, Gardner, and Whytock have undertaken the definitive study of state doctrines of forum non conveniens, which I view with no small degree of admiration. The authors are to be commended for delving into the largely ignored landscape of state procedural law, which is always a challenging task. Their study answers practically everything you might ever want to know about federal and state forum non conveniens and provides law professors with substantial data to voice something more than passing reference to state doctrines. More importantly, the authors locate their findings in a conversation about procedural federalism—how courts and rule makers spread procedural innovations throughout the state and federal systems through a process of diffusion. Continue reading "Deconstructing Forum Non Conveniens in the Context of Procedural Federalism"
Oct 7, 2022 Rachel RebouchéFamily Law
Laura T. Kessler,
Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law, 108
Cornell L. Rev. __ (forthcoming 2023), available at
SSRN.
Professor Laura Kessler’s new article, Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law, forthcoming in the Cornell Law Review, begins with the graphic and powerful retelling of five miscarriages. Her five miscarriages. She does not mince words; she does not, as she writes, believe that the experiences can “sound and look pretty.” (P. 1.) She soon reveals the reason for personal storytelling, which is to challenge the silence that surrounds pregnancy loss and to shine a light on this common yet often hidden experience.
Although there is copious scholarship on pregnancy and work, there is very little in the legal literature on miscarriage, specifically, and employment law. In mapping how the laws governing the workplace make miscarriage invisible, this article asks us both to see miscarriage as part of workers’ lives, demanding accommodation, as well as to think about how workplaces contribute to pregnancy loss. Below, I explore three important theoretical and practical contributions of the article before turning to the difficulty of defining pregnancy, miscarriage, and abortion. Continue reading "The Employment Law of Pregnancy Loss"
