Monthly Archives: November 2022
Nov 16, 2022 Larissa KatzJurisprudence
Aziz Huq,
Property Against Legality: Takings after Cedar Point, 109
Virginia L. Rev. __ (forthcoming 2023), available at
SSRN.
There is a nearly universal assumption in contemporary property theory that clearly defining property rights in terms of exclusion enhances rule of law virtues of clarity, stability and predictability. And there is a corresponding assumption that a rival account, according to which property is a malleable bundle of rights, undermines those same values. Judicial discretion is the main target of this prevailing view: a bundle of rights approach invites courts to configure the content of the “bundle” of rights in socially optimal ways. While there is much to be said for engineering property rights to advance social goals, this can be said against it: it leaves participants in the legal order—litigants, potential trespassers or buyers, even judges—in the dark about what the relevant rights and duties are.
In Property Against Legality, Aziz Huq provides doctrinal and theoretical grounds to doubt this dominant assumption: a stronger right to exclude, he argues, may erode legality. (P. 42.) His point of departure is a recent US Supreme Court case, Cedar Point Nursery v. Hassid. Cedar Point concerned the constitutionality of a California “take access” regulation allowing union organizers to approach agricultural workers on company property three times a day. (P. 16.) The Court concluded that “take access” legislation was an appropriation of the right to exclude third parties—a taking per se. Much of Huq’s article provides a close analysis of Cedar Point itself, which he characterizes as a sharp break from settled takings law. (Id.) He argues that the decision puts property and legality in conflict for two related reasons: (1) it undermines the methodological foundations of takings doctrine by deviating from “ordinary meaning,” (P. 20) “original understandings,” (Pp. 22-23) and “applicable precedent;” (P. 26) and (2) it will lead to more arbitrary power in future, by expanding judicial discretion and enhancing arbitrary private power to decide matters affecting the core interests of other people. Continue reading "When Property and Legality Diverge"
Nov 15, 2022 Jessica SilbeyIntellectual Property Law
Professor Kara Swanson’s latest article is a remarkable example of legal historical scholarship that excavates stories from the past to illuminate the present. It is chock full of archival evidence and historical analysis that explains gaps and silences in the United States patent registry as evidence of marginalized inventors–particularly Black women–who should be named inventors but are not.
The article is arresting reading for anyone interested in antebellum history, intellectual property, and the intersection of racism and sexism in law. Mostly, I am grateful to Professor Swanson for doing the obviously very hard work of digging through archives, reading microfiche, and scouring other primary and secondary sources for what she calls the “whispers” of Black women inventors of our past whose stories need to be told to change the narrative of U.S. inventorship. Continue reading "Centering Black Women in Patent History"
Nov 14, 2022 Anthony ColangeloInternational & Comparative Law
Anyone familiar with the work of William Dodge and Chimène Keitner will expect nothing less than an expert, precise, and innovative piece of scholarship that deftly explains and advances the law. And so it goes with A Roadmap for Foreign Official Immunity Cases in U.S. Courts.
The authors join forces to both explain the doctrine of foreign official immunity and propose sensible and workable rules for courts to follow against a messy doctrinal background left in the wake of Samantar v. Yousuf, where the Supreme Court held that the Foreign Sovereign Immunity Act (FSIA) does not regulate suits against foreign officials; rather, such suits are governed by the common law, which includes international law. Continue reading "Solving the Puzzle of Foreign Official Immunity"
Nov 11, 2022 Medha MakhloufHealth Law
Shefali Milczarek-Desai,
Opening the Pandemic Portal to Re-Imagine Paid Sick Leave for Immigrant Workers, 111
Calif. L. Rev. __ (forthcoming 2023), available at
SSRN.
The COVID-19 pandemic shone a light on the critical role to the nation’s economy of noncitizen workers performing frontline, essential, low-wage jobs. In this forthcoming article, Shefali Milczarek-Desai focuses on the failure of workers’ rights laws to protect the interests of the “brown collar workforce,” thereby exacerbating individual and public health risks during the pandemic. To remedy this problem, she proposes to reframe paid sick leave as more than just a workplace right; rather, it should be considered a strategy to promote the health and safety of the entire population.
Professor Milczarek-Desai’s work is a timely exploration of a complex issue at the intersection of immigration law and labor and employment law, which is informed by her practice in the Workers’ Rights Clinic at the University of Arizona’s James E. Rogers College of Law. Although numerous other scholars have written about the mistreatment of undocumented noncitizens in the workplace, she notes that no prior proposal addresses the root cause of the problem: that noncitizen workers are considered noncitizens first, workers second. They are “impossible subjects” in our society—vital to America’s success, yet often outside the law’s protection. Her work raises important questions about who gets left behind in a workers’ rights-based framework. Continue reading "Paid Sick Leave and Health Justice"
Nov 10, 2022 Aníbal Rosario-LebrónFamily Law
Courtney G. Joslin & Douglas NeJaime,
How Parenthood Functions, __
Colum. L. Rev. __ (forthcoming 2023), available at
SSRN.
For some time now, legal scholars have been writing about the panoply of diverse family forms such as single parents, post-divorce, blended, and LGTBQ+ families. We use these “modern” arrangements as a gateway into discussing how families actually work, how far the law is from reflecting that reality, and how social changes in family formation challenge norms about gender, sexuality, and the nuclear family. Only on a few occasions, however, do we find in the legal literature an article that empirically tests our assumptions about how the law reflects family reality and how effectively a legal institution regulates such reality. Courtney Joslin and Douglas NeJaime’s How Parenthood Functions does precisely that.
In their forthcoming article, the authors survey 669 electronically reported judicial decisions (almost all of which are appellate decisions) from every United States jurisdiction with a functional parent doctrine. They define functional parenthood as legal institutions that grant parental rights to a person based on their conduct of having functioned as a parent (e.g., de facto parentage, in loco parentis, psychological parenthood, or presumed parentage based on holding out a child as one’s own). Their study includes cases decided under common law, equitable, and statutory grounds that treat functional parents as legal parents or grant them partial parental rights. The authors exclude from their data set cases arising under third-party custody and visitation statutes that do not require proof of a parent-child relationship or parenting behavior; doctrines that turn on a person’s status in relation to the legal parent to grant rights (e.g., marital presumptions or right to visitation based on the status as a grandparent or stepparent); and assisted reproduction statutes that recognize people as parents (both married and unmarried) based on their intent to be parents. Continue reading "Functional Reality"
Nov 9, 2022 Charles A. SullivanWork Law
Keith Cunningham-Parmeter,
Discrimination by Algorithm: Employer Accountability for Biased Customer Reviews, 70
UCLA L. Rev. __ (forthcoming 2023), available at
SSRN.
Among the things I like a lot are articles that make me question my original take on a topic. That is certainly true of Keith Cunningham-Parmeter’s Discrimination by Algorithm: Employer Accountability for Biased Customer Reviews. Some of his points are familiar (customer biases are pervasive and, employers, while paying lip service to antidiscrimination values, don’t deploy meaningful strategies to counteract such biased reviews). Others are increasingly accepted (such biases threaten to have more and more concrete employment consequences as technology allows them to be aggregated and acted upon in real time).
But I found most interesting Cunningham-Parmeter’s arguments as to how an employer might be liable for acting on customer reviews it knows (or could know) were discriminatory. And how an employer could avoid such liability but still retain the benefits of customer feedback. I’m not sure I’m totally persuaded on either point, but I gained a much better understanding of the dimensions of the problem and doctrinal challenges dealing with it under current law. Continue reading "When Customers Become Bosses"
Nov 9, 2022 Erez AloniEquality
Ido Katri,
Transitions in Sex Reclassification Law, 70
UCLA L. Rev. __ (forthcoming), available in draft at
SSRN.
Our legal identity is formed in the immediate aftermath of our birth. Markers are given to us that denote our names, our hometown, and, crucially, our sex. On the basis of our genitalia at birth, we are assigned an M or F and launched into the world with a slew of expectations as to gender identity and expression.
Clashing with this weight of normative expectations forces transgender people (including non-binary and all other people whose gender identity or expression does not conform to their assigned-at-birth sex) into a public admission that they inhabit the wrong bodies. That is, that the identity that they have come to understand and nurtured does not correlate to the one assigned to them at birth. Aligning the two is the work of sex reclassification, the process through which a non-cisgender person applies to change their legal sex in their official state documents (e.g., IDs, birth certificate). This is an area of rapid doctrinal change in the US and the world at large, with an increasing embrace of self-identification: a legal framework for reclassification that is grounded in the applicant’s self-experience of gender and in the autonomous right to determine gender identity.
Into this explosion of legislative change, steps in Ido Katri, whose forthcoming article, Transitions in Sex Reclassification Law, accomplishes two important goals. First, it tracks the doctrinal and normative shifts in US approaches to sex reclassification and organizes an ambitious review of fifty states’ legislation into an easy-to-follow taxonomy. Second, it challenges the basic assumption underpinning reclassification laws and questions why we assign sex at birth at all. What if there were no “wrong bodies”? Continue reading "Calling Off Classification"
Nov 8, 2022 Aila HossLexNative Peoples Law
Neoshia Roemer,
The Indian Child Welfare Act as Reproductive Justice, 103
Boston U. L. Rev. __ (forthcoming 2023), available at
SSRN.
The abolishment of a fundamental right in the recent Dobbs v. Jackson Women’s Health Organization decision sent a shock through communities across the country, including Indian country. Abortion access specifically, and reproductive health generally, has always been limited for Indigenous people. The Dobbs decision will make it worse.
In her forthcoming article, The Indian Child Welfare Act as Reproductive Justice, Professor Neoshia Roemer considers the impact of Dobbs alongside the potential gutting of the Indian Child Welfare Act (ICWA) in Brackeen v. Haaland. She shrewdly notes that limited access to reproductive healthcare without protections for Tribal rights puts Indian children and Indigenous cultures in jeopardy. Continue reading "Protecting the Indian Child Welfare Act After Dobbs"
Nov 8, 2022 Aya GruberCriminal Law
Guyora Binder and Ekow Yankah’s fascinating new article is essential reading for anyone seeking a deep understanding of the legacy of the massive protests in the wake of George Floyd’s killing. The article reveals that a primary achievement—perhaps the primary achievement—of the agitation, Derek Chauvin’s murder conviction, may not be the racial justice victory people widely believe it to be.
The racial justice uprisings of Summer 2020 constituted the single largest worldwide protest in history. Although the sociopolitical factors underlying the eruption of activism were legion, from the ascendence of Trumpian white nationalism to the rampant health infrastructure inequities that helped Covid to devastate communities of color, it was a single nine minute viral video that galvanized the historical moment. What brought the world into the streets was the heart-wrenching video of Derek Chauvin, hands casually in his pockets, calmly—one might even say professionally—training his knee on the neck of George Floyd, who lay prone and dying and cried out for his mother. In those minutes, the world began to see the police not as the superhero criminal interdictors of ingrained American cultural mythology but as the foot soldiers of the forever war against the poor, minorities, and dissenters. The brutal conduct of the militarized police units tasked with “keeping the peace” during the protests further solidified this notion of the police as violence purveyors rather than interrupters. Continue reading "Criminal “Justice” as Racial Justice?"
Nov 7, 2022 Alexander Boni-SaenzTrusts & Estates
One of the ramifications of the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization is the significant uncertainty it has created about the legal status of various reproductive technologies, given that many states will regulate abortion in ways that impact those technologies as well. In Reimagining Postmortem Conception, Professor Kristine Knaplund provides a comprehensive snapshot of the pre-Dobbs legal landscape regarding postmortem conception using reproductive technology and its effect on inheritance law. This 50-state survey provides an interesting example of the variety of regulatory strategies that can evolve in a contested legal area as well as the difficulties that such a patchwork might entail. For those interested in trusts and estates, family law, and health law, it will be an invaluable read.
Knaplund starts by surveying the current social and legal landscape. Opinion surveys indicate that a majority of Americans support postmortem conception, and that number rises if the decedent consented. On the ground, a small but growing number of people are cryopreserving sperm, ova, and embryos for the purpose of having children in the future, possibly including after death. Further, there have been increasing requests for gamete retrieval from spouses who are recently deceased or exist in a vegetative state. While public sentiment regarding postmortem conception has been trending toward higher levels of approval, states have lacked uniformity in their regulatory response and, in particular, have failed to agree on the impact of postmortem conception on inheritance rights. Twenty-four states have addressed the inheritance question directly, with all but one establishing that postmortem children can inherit from a predeceased parent if certain conditions are met. The other twenty-six states take wildly varying approaches, with courts looking to parentage law or other statutes for clues to solve this legal question.
Posthumous children present two challenges for inheritance law. First, how can lawmakers ensure the orderly administration of estates, given that reproductive material can be stored for years or decades before being used? Second, how can courts determine whether the deceased prospective parent consented to the use of that reproductive material? Continue reading "Posthumous Reproduction and Inheritance Law"
