Yearly Archives: 2022
Jul 12, 2022 Neil H. BuchananTax Law
Do the goals of fairness, equity, social justice, or other explicitly normative approaches to analyzing law and policy have any place at all in modern scholarship? Some scholars, especially those who approach the world from an orthodox economic viewpoint, have tended to reject categorically the very idea that such concepts should supplant their purportedly hard-headed analysis–an analysis that they hold out as being superior to supposedly “soft,” “sentimental,” “moralistic,” or “subjective” anti-orthodox approaches. Increasingly, however, equity-based analysis has at least been permitted as a component of most legal scholarly discussions. That itself is progress.
Even so, there continues to be a presumed distinction between self-styled “objective” approaches and the approaches of those who focus on inequality, domination, and other such fundamental questions of social justice. The familiar “equity-efficiency tradeoff” encapsulates this tension, the notion being that there are two distinct analytical categories that are not merely separate but in opposition to each other–-that is, the tradeoff says that we must sacrifice some efficiency if we desire greater equity, or instead that we must agree to doom more people to poverty if we seek to maximize efficiency. But is there a better approach? Happily yes, as Taxation and Law and Political Economy, by Professors Bearer-Friend, Glogower, Jurow Kleiman, and Wallace, clearly suggests. Continue reading "Bringing Law and Policy Back from the Black Hole of Efficiency-Based Analysis: Another Important Step Toward Refocusing on Justice"
Jul 11, 2022 Carol Necole BrownProperty
Noah M. Kazis,
Fair Housing, Unfair Housing, __
Wash. U. L. R. Online (forthcoming), available at
SSRN.
Walking across the parking lot from my law school to the annex building where my office is temporarily relocated, I spotted a trusted and dear colleague. She and I hugged and soon started talking about a sore topic for me, how my 1L property course was coming along. This is the second year I have been relegated to teaching my once four credit course as a two credit course. Just another one of the tragic consequences of Covid, I guess.
Only having two credits has meant that the discussion of many property topics, including housing law, has been truncated. In frustration, I uttered the words, “I’m just going to KISS it.” Her eyes widened as she inquired, “KISS it, what is that?” I replied, “I’m Going to Keep It Simple Stupid.” We looked at one another knowingly, we both laughed, and continued on our separate ways to our offices.
Soon thereafter, I came across Noah Kazis’ article, Fair Housing, Unfair Housing, in which he makes an insightful contribution to the seemingly intractable problem of unfair housing practices. Kazis’ thesis confirmed my weeks earlier conversation with my colleague; sometimes the best solution is found in keeping it simple. Continue reading "“KISS” It and Disrupt Unfair Housing"
Jul 8, 2022 Juliet StumpfLexImmigration
In immigration law, where the apex penalty is deportation, proportionality is absent. We tend to think of proportionality in punishment as requiring that the severity of a penalty track the severity of the offense, minus mitigating circumstances. The coin of the realm in immigration law is immigration status, so mitigating circumstances would in theory focus on the noncitizen’s particular qualities, such as length of residence in and ties to the United States. In Immigration Law’s Arbitrariness Problem, published in the Columbia Law Review, Shalini Bhargava Ray argues for sanctions better tailored to these considerations.
I like this article (lots) because for one thing, it challenges my own scholarship advocating for proportionality in immigration law and centralizing deportation as the sole immigration penalty. (I’m not alone. Angela Banks, Mike Wishnie, Maureen Sweeney, and Jason Cade (and others) have also proposed proportionality in deportation, and they’re no slouches). The article’s first contribution is to challenge the notion that proportionality is a fix for deportation’s ills. Proportionality proponents tend to point to the criminal justice system’s employment of proportionality in sentencing but, as Bhargava Ray observes, criminal law is replete with “overpunishment and overcriminalization” and so not a model of proportionality as path to justice. Besides, courts tend to hate the proportionality argument, which is why it tends to fail. Continue reading "Shining a Light on Shadow Sanctions"
Jul 7, 2022 W. Bradley WendelLegal Profession
Scott Cummings’s new book, An Equal Place: Lawyers in the Struggle for Los Angeles, tells five different stories illustrating the role of law and lawyers in securing goods such as economic justice, environmental protection, and the rights of immigrants, in the city of Los Angeles in the years following the 1992 riots. The book is organized around chapters providing comprehensive histories of these campaigns: Reforming sweatshop labor in the garment industry; contesting anti-solicitation ordinances that restricted the ability of mostly Latino day laborers to obtain employment; ensuring living-wage jobs in the wake of gentrification and community redevelopment projects; blocking the development of a Wal-Mart supercenter that would have undermined unionization in the grocery industry; and improving labor and environmental conditions for truck drivers at the Ports of Los Angeles and Long Beach.
In his most recent Netflix special, all-time-great comedian Chris Rock observes: “[W]hen you’re in a band, you have roles that you play in the band. Sometimes, you sing lead. And sometimes, you’re on tambourine. And if you’re on tambourine, play it right. Play it right. Play it with a . . . smile, because no one wants to see a mad tambourine player.” Rock uses this as an extended metaphor for relationships, but at the risk of wrenching it too far out of context, the comparison can also apply to the role of public interest lawyers in social movements. Some lawyers may aspire to be the lead singer, but the interests of justice may be better served by lawyers playing a supporting role, and playing it well. Continue reading "Lawyers Playing Tambourine"
Jul 7, 2022 W. Bradley WendelLegal Profession
Scott Cummings’s new book, An Equal Place: Lawyers in the Struggle for Los Angeles, tells five different stories illustrating the role of law and lawyers in securing goods such as economic justice, environmental protection, and the rights of immigrants, in the city of Los Angeles in the years following the 1992 riots. The book is organized around chapters providing comprehensive histories of these campaigns: Reforming sweatshop labor in the garment industry; contesting anti-solicitation ordinances that restricted the ability of mostly Latino day laborers to obtain employment; ensuring living-wage jobs in the wake of gentrification and community redevelopment projects; blocking the development of a Wal-Mart supercenter that would have undermined unionization in the grocery industry; and improving labor and environmental conditions for truck drivers at the Ports of Los Angeles and Long Beach.
In his most recent Netflix special, all-time-great comedian Chris Rock observes: “[W]hen you’re in a band, you have roles that you play in the band. Sometimes, you sing lead. And sometimes, you’re on tambourine. And if you’re on tambourine, play it right. Play it right. Play it with a . . . smile, because no one wants to see a mad tambourine player.” Rock uses this as an extended metaphor for relationships, but at the risk of wrenching it too far out of context, the comparison can also apply to the role of public interest lawyers in social movements. Some lawyers may aspire to be the lead singer, but the interests of justice may be better served by lawyers playing a supporting role, and playing it well. Continue reading "Lawyers Playing Tambourine"
Jul 6, 2022 Allison Brownell TirresLegal History
When assessing a canonical Supreme Court case, legal scholars often emphasize the road to the case and its decision, and then move on. It is the issuing of the decision that ends the discussion. But there is much to lose if we do not take seriously the aftermath of a case and ask how that decision translated into actual legal practice. This is the important work that Amanda Frost does in her article on the canonical 1898 case United States v. Wong Kim Ark, which upheld the Fourteenth Amendment’s guarantee of citizenship to those born on U.S. soil. The case is heralded as a moment of enlightenment amid a dark exclusionary era, but this article reveals a far more complicated legacy. Frost mines the archives to bring us the startling discovery that Wong Kim Ark’s citizenship was far from settled after the Court issued its decision, despite its unequivocal holding.
By Accident of Birth artfully weaves together multiple strands, including the legal history of birthright citizenship, the social history of Chinese Americans, and the family history of Wong Kim Ark, to shed new light on this landmark case. Wong Kim Ark’s personal and family history serve as the organizing frame for the article. Wong was born in San Francisco in 1870, just two years after Congress ratified the Fourteenth Amendment and twelve years before passing the first Chinese Exclusion Act. His parents lived in the U.S. legally for many years prior to his birth, but they – like other Chinese migrants and Chinese Americans—were commonly subjected to discriminatory state and local laws as well as vigilante violence. Continue reading "Contesting Birthright Citizenship: The Aftermath of Wong Kim Ark"
Jul 5, 2022 Thomas BustamanteJurisprudence
David Dyzenhaus, The Long Arc of Legality: Hobbes, Kelsen, Hart (2022).
David Dyzenhaus argued in the last paragraph of The Long Arc of Legality that, except for the rare cases where there is a need for a revolution, “our moral and legal lives are completely and utterly intertwined.” (P. 422.) But this apparently radical endorsement of natural law theory is nuanced because Dyzenhaus has only a pragmatic morality in mind. In agreement with Hart, he rejects the assumption that legal philosophers should choose between the metaethical positions of moral realism and emotivism (P. 370) and suggests, instead, that the law is a kind of “laboratory for the testing of moral ideals.” (P. 387.)
A distinctive and interesting part of Dyzenhaus’s contribution is his explanation of how that pragmatic morality relates to law. To understand the law’s authority, Dyzenhaus puts legal subjects, instead of officials, at the center of legal inquiry. Jurisprudence’s “first question” becomes the question that legal subjects are entitled to ask from the legal system’s internal point of view, that is, the question “But, how can that be the law for me?” (P. 2), which Bernard Williams described as the “Basic Legitimation Demand” of any political society. A modern state must satisfy that justificatory requirement because that is what shows that such state “wields authority, rather than sheer or unmediated coercive power, over those subject to its rule.” (P. 213.) Continue reading "Interpretive Authority and the Kelsenian Quest for Legality"
Jul 4, 2022 Natsu Taylor SaitoEquality
As teachers and scholars, we think a lot about how the world really works, what can be done to make it more equitable, and how to articulate coherent analyses that will be put to good use by others. For those of us who’ve been at it a while, it’s wonderful to hear from young scholars excited by something we wrote long ago—but it can be disheartening as well. After that initial relief that the piece hasn’t been swallowed by a black hole, the worry sets in. Why does decades-old work appear as fresh insight? Are we still circling the same old rock? Shouldn’t this intellectual project have evolved much further by now?
Then, along comes a gem like Raymond Magsaysay’s Asian Americans and Pacific Islanders and the Prison Industrial Complex. This somewhat prosaic title masks a beautifully written and artfully constructed exposé of the conceptual disappearance of Asian Americans and Pacific Islanders (“AAPIs”) in the criminal “justice” system. It is not, however, a “we, too, are oppressed” story. Rather, the brilliance of Magsaysay’s article lies in his use of critical race theory, Asian American jurisprudence, and the work of anti-colonial and indigenist scholars as well as prison abolitionists to highlight how the narratives of criminalized AAPI youth can undermine anti-Black racism and help us envision a future unconstrained by mass incarceration. Continue reading "Erasure: The Conceptual Disappearance of Criminalized Asian Americans and Pacific Islanders"
Jul 1, 2022 Christopher J. SprigmanIntellectual Property Law
Mark Bartholomew of the University at Buffalo School of Law recently published an article in the Notre Dame Law Review, Copyright and the Creative Process, which offers a fresh perspective on a central question in copyright law—what is “creativity?” Creativity is the thing that copyright law is meant to encourage. Copyright, in other words, is justified as a way of incentivizing creativity. But copyright law’s understanding of creativity is notably spare. The U.S. Copyright Act states that a work must be “original” in order to be protected. But the Act does not define originality, or situate it within the broader concept of “creativity.” The Supreme Court in its decision in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. was only a bit more forthcoming. Originality, the Feist Court made clear, does not require the sort of novelty that eligibility for patent protection does. Rather, what is required is only independent creation (i.e., that the work originate with the author, rather than being wholly copied from another), and that is “possess[es] some creative spark, no matter how crude, humble or obvious is might be.” Id. at 345 (internal quotations omitted).
Feist makes it clear that the standard is not demanding. It does not make clear, however, how to assess in borderline cases whether a work meets that low threshold and is creative enough to be protected. Copyright’s reticence on this point is, at minimum, a bit strange. Some have reacted by suggesting that we drop or at least de-emphasize creativity as an entry condition for copyright protection. Others have gone in the opposite direction, suggesting that the creativity standard be raised. But it’s difficult to know what to do with copyright’s creativity requirement, if anything, until we understand the concept better. Continue reading "What Can Neuroscience Teach Us About Copyright?"
Jun 30, 2022 Sam F. HalabiInternational & Comparative Law
As national and international commerce move increasingly to online platforms – which themselves tie together nearly every corner of the globe – the problem of dispute resolution when business goes awry or products cause injury has moved to a central position for scholars of private law, both domestic and international. In their careful and important work, Enforcing Inbound Forum Selection Clauses in State Court, John Coyle and Katherine Richardson address an important aspect of this problem: “inbound” forum selection clauses, i.e. those that require adjudication in the forum where the lawsuit is filed. Coyle and Richardson distinguish “inbound” forum selection clauses from “outbound” forum selection clauses – those that require adjudication in another forum. This distinction, they rightly note, is often missed by federal district courts and it is critical for analysis under Fed. R. Civ. P. 4(k), which in essence makes federal district court jurisdiction coextensive with the general law of personal jurisdiction of the state in which the federal district court sits (itself a quirk of political dynamics in the U.S. federal system). This article is one I like a lot, and I hope others active in the study and shaping of private international law do as well.
In addition to the important distinction they highlight in the law governing forum selection clauses – inbound and outbound – Coyle and Richardson undertake a heroic effort to 1) map the legal terrain of state law governing inbound forum selection clauses (there are four general regimes, with a majority of states following the approach adopted by the U.S. Supreme Court in The Bremen v. Zapata Off-Shore Co. concluding forum selection clauses are broadly enforceable absent an extraordinary showing of unreasonableness or unfairness); 2) describe the unfairness that results from current treatment (they begin the article with Google’s standard terms that require adjudication in Santa Clara County, California); and 3) propose solutions based on the size and sophistication of the party disadvantaged by the inbound forum selection clause. Continue reading "Challenging Home Court Advantage"
