Yearly Archives: 2022
Jun 6, 2022 Melissa MortazaviLegal Profession
In today’s political climate, railing against the intellectual (not economic) elite has reached an anti-expertise fever pitch. It might be tempting in this climate to dismiss Benjamin Barton’s forthcoming book, The Credentialed Court: Inside the Cloistered Elite World of American Justice, as just another such diatribe. It is not. Instead, Barton’s book proves what scholars have long intuited: that while the Supreme Court facially appears more diverse than in the past, in other ways the court has rarely been so homogenous. Plus, it is such a juicy and delightful read you won’t feel like you’re reading for work.
Ben Barton’s book is a combination of straightforward data and entertaining storytelling. The first few chapters are a delicious highlights reel of the early Supreme Court appointees, full of colorful detail and choice tidbits—from a pro-football player to the story of a self-made immigrant who rocked the constitutional convention, won George Washington’s trust, and married into a prominent family – why it’s the stuff musicals are made of (hint: it’s not Alexander Hamilton)! Barton presents all this to argue that past Supreme Court Justices weren’t uniformly studious or bookish but zany, original, and more accomplished in other fields. Continue reading "Homogenous Diversity"
Jun 3, 2022 Kristina NiedringhausLexLibrarianship and Legal Technology
Law students and attorneys often wonder if it matters whether they use United States Code Service (USCS), a Matthew Bender publication also available on Lexis+, or United States Code Annotated (USCA), a Thomson Reuters publication also available on Westlaw Edge. In 1L legal research classes, I often field the question about what the differences are between the publications. “They are both the US Code, right?” is a common refrain. The traditional lore, passed on to law students, was that USCA strove to provide an annotation for every relevant case while USCS strove to provide annotations to the “best” cases. Accordingly, USCA was said to contain a greater number of annotations and USCS was more selective. I recall being taught this in law school. However, like much folklore, the foundations for this assertion are becoming lost with time and it is unclear whether this represents the current state of the two annotated codes. The product page for the print edition of USCA states that the set has “comprehensive case annotations.” Similarly, the product page for the print version of the USCS states that it is “the most comprehensive” set. We are left to determine for ourselves the meaning of “comprehensive.” We will talk more about this later, but it is important to note that USCS case annotations include administrative decisions while USCA case annotations do not.
Ms. Marcum’s research explores whether there is a significant difference between the annotations found in USCA and USCS. Does it matter which annotated code the researcher uses? Should a thorough researcher use both? Most people would expect some unique case annotations in each annotated code with a fair amount of overlap between the two sets. The surprising results were that out of 9164 case annotations for 23 statutes, 6748 of the annotations were unique to either USCS or USCA. Of the 9164 case annotations, 73.6% of them were unique and only listed in one of the annotated codes. Most researchers will be shocked by the small amount of overlap between the two publications. One could anticipate that this percentage would be statistically significant, and Ms. Marcum confirms this is true using a Wilcoxon T test. Continue reading "Checking Annotations in both USCS and USCA: Necessary or Redundant?"
Jun 2, 2022 Andrew HalpinJurisprudence
Often an article or essay proves valuable for the points it directly advances in promoting the author’s view on the subject matter it covers. Sometimes, additional value is produced because the piece indirectly stimulates fresh thinking on that subject matter, irrespective of whether following those novel lines of thought proves to be compatible with or at variance with the author’s own viewpoint. In these terms, Kevin Toh’s essay on Legal Positivism and Meta-Ethics in The Cambridge Companion to Legal Positivism provides double value.
Toh is directly concerned to raise a number of important points related to the different levels legal theory operates on, and how an appreciation of meta-ethics might inform our understanding of the relationships between these levels and the fruit that might yield. Meta-ethics may assist both by analogy (P. 566), and by contributing its own perspective on an appropriate delineation of morals so as to inform legal theory’s own preoccupation with the law/morality connection or divide (P. 570). That latter contribution is expanded by Toh into an endorsement of wider philosophical collaboration between different disciplines. And it is this use of “resources made available by other areas of philosophy and related empirical disciplines” (P. 570) that shapes Toh’s own tentative contribution to understanding the nature of law. (P. 581.) Continue reading "Taking Control With Meta"
Jun 1, 2022 Lyrissa B. LidskyConstitutional Law
In the past few years, a number of prominent voices—including then-candidate Donald Trump, Justice Clarence Thomas, Justice Neil Gorsuch, federal appeals court judge Lawrence Silberman, top Democratic election lawyer Marc Elias, and others—have called for the Supreme Court to reconsider its constitutionalization of defamation law that began with New York Times v. Sullivan. At first these voices seemed quixotic. But there is a growing debate among legal analysts about whether the constitutional parameters of defamation should be altered to strike a better balance between society’s interests in protecting individual reputation, safeguarding freedom of expression, and anchoring our public discourse in truth. Christina Tilley’s new article, (Re)Categorizing Defamation, enters this debate firmly on the side of tilting the playing field back toward plaintiffs, in the expectation that doing so will also help restore media credibility and provide United States citizens with the factual information we need to engage in democratic self-governance.
Although she expresses her prescription somewhat tentatively as merely a call for “reconsideration” of existing law, Tilley urges that defamation law should abandon fault-based liability in favor of a default regime of strict liability. Her rationales for this revolutionary call to return to the defamation law regime that existed prior to 1964 hinge crucially on her accounts of the role of agency in tort law, and the diminished level of “control” mainstream media have (or choose to exert) over their news product today. As she writes, “As publishers have ceded control over content production to in-house bot journalists and independent, amateur reporters, and have ceded control over content publication to platform algorithms, they no longer exercise the kind of control that justifies the use of a fault-based liability standard.” (P. 516.) Continue reading "Defamation Law Reform: A Tort Remedy for Ultrahazardous Words?"
May 31, 2022 Pamela SamuelsonIntellectual Property Law
Clark Asay,
An Empirical Study of Copyright’s Substantial Similarity Test, 13
UC Irvine L. Rev. __ (forthcoming, 2022), available at
SSRN.
Far fewer empirical studies in the intellectual property field have focused on copyrights than on patents. Each new entrant to this small field is, however, welcome. The latest offering by Clark Asay reports on his study of a random sample of 1005 judicial opinions assessing substantial similarity infringement analyses in 974 cases decided between 1978-2020. He coded for subject matters, rights in dispute, procedural postures, subtests, expert evidence, whether courts discussed copyright limitations, sources of authority, and outcomes.
Those of us who teach copyright law have long had the impression that substantial similarity analyses in the opinions we teach are a hot mess. Asay has now provided empirical evidence that this impression is mostly quite accurate. Continue reading "Surprising Results of a New Study of Copyright Substantial Similarity Analyses"
May 30, 2022 Verity WinshipInternational & Comparative Law
Is criminal prosecution a tool of foreign policy? Should it be? The US arrest of Huawei’s CFO and US indictments of Russian hackers, Venezuelan President Maduro, and others make these particularly timely and worthwhile questions. Steven Arrigg Koh’s article, The Criminalization of Foreign Relations, provides a response, ultimately arguing for a constrained role of “extraterritorial law enforcement policy” in foreign relations.
The article’s main move is to consider criminal actions as part of the classic list of foreign policy tools alongside “diplomacy, cooperation and association agreements, trade, economic sanctions, military force, and the use of foreign aid.” (P. 739.) The author then makes the case for a cabined and depoliticized use of the tactic. Criminal actions, he suggests, should be confined to contexts that take advantage of their basic characteristics: They are individualized, retrospective, involve lots of process, and have high stakes, with incarceration as a possible outcome. (Pp. 757–58.) And they are “adjudicated before a neutral branch of government in adherence to a broader rule of law.” (P. 758.) Continue reading "Law Enforcement as Foreign Policy"
May 27, 2022 Jay TidmarshCourts Law
Diego A. Zambrano,
Missing Discovery in Lawyerless Courts,
122 Colum. L. Rev. __ (forthcoming 2022), Jan. 5, 2022 draft available at
SSRN.
Because 98% of civil litigation occurs in state court, we procedure scholars can be criticized for our myopic focus on procedures in federal courts. An emerging body of scholarship is adjusting that perspective by telling us much more about what is occurring in state courts — and it is eye-opening. To pick a few examples, Pamela Bookman and Colleen Shanahan (reviewed here) have shown how, in contrast to “lawyered” federal courts, state courts are often “lawyerless courts” where at least one party is unrepresented. Daniel Wilf–Townsend samples state-court dockets and uncovers, among other nuggets, that ten corporations account for an astounding 24% of the 16 million annual state-court filings. If we are concerned about access to justice, we should heed the advice of Anna Carpenter, Jessica Steinberg, Colleen Shanahan, and Alyx Mark to do more empirical research and more theoretical analysis about the roles of lawyers and judges in the fluid and evolving world of state-court litigation.
Diego Zambrano takes on one piece of this task by exploring how discovery operates in state courts. Zambrano has become a distinctive voice on discovery. He has proposed seeing it as a regulatory tool (in contrast to the usual view that it is meant to aid in the accurate and fair adjudication or settlement of individual cases). His co-authored piece on the myriad ways in which parties can poison the well of technology-assisted review is required reading for anyone who hopes that artificial intelligence will harness and solve the problems of discovery in document-intensive litigation. In Missing Discovery, Zambrano examines how discovery plays out in some of the largest categories of state-court litigation, in which individual litigants are likely unrepresented: small-claims and debt-collection cases, landlord-tenant disputes, family matters, and appeals from agency decisions in areas such as workers’ comp or unemployment insurance. Continue reading "Discovery in State Courts"
May 26, 2022 André den ExterHealth Law
Every field of law has some comparative law studies, including health law. A search in the legal databases gives several hits using the keyword comparative health law; in other words, comparative law is ‘hot’. However, the comparison is often limited to a single topic (medical negligence, euthanasia, patients’ rights, etc.) and a limited number of jurisdictions. The added value of the Oxford Handbook of Comparative Health Law is the comprehensive nature of the study: a wide range of related topics within contemporary health law is addressed (regulating public health, health financing, health services and facilities, pharmaceuticals, the patient-provider relationship, new medical technologies, and end-of-life decision making). The editors opted for a so-called transatlantic approach, specifically comparing the United States and Europe. This choice is justified by the differences and similarities between the legal frameworks of health law in these regions. All in all, this is an ambitious project, partly because the legal rules can differ considerably between states and at the country level.
It is precisely the scope and quality of the legal comparison conducted that allows this Handbook to make a valuable contribution to the understanding and resolution of contemporary issues within health law. Mistakenly, health law issues are often approached exclusively as unique to the legal system in question, but the difference in manifestation does not make the issue any different in other jurisdictions. The question that needs to be asked first is why a particular legal rule is shaped differently in form and substance in different national jurisdictions. With respect to such explanatory research, as described by Dannemann: “Generally speaking, the (comparative) analysis should seek to explain differences and similarities as they arise from the description of the legal systems under consideration, so that whoever has predominantly found similarity, will predominantly have to explain similarity, whereas those who have predominantly found differences, will predominantly have to explain differences”. Continue reading "Health Law: A Transatlantic Dialogue"
May 25, 2022 Ayelet Blecher-PrigatFamily Law
Sean Hannon Williams,
DNA Dilemmas, __
Yale L. & Pol’y Rev. __ (forthcoming 2022), available at
SSRN.
The expansion of direct-to-consumer DNA tests and databases that retain vast DNA data enables almost unlimited access to genetic information and leads to situations in which people make surprising discoveries about their genetic origins. Sometimes people learn that a person who is identified on their birth certificate as their parent is not their genetic parent. Occasionally, people faced with such findings want the law to take account of this discovery, inter alia by amending their birth certificates. In DNA Dilemmas, Sean Hannon Williams uses such cases as a basis to kick off a provocative intellectual journey into the meaning of legal parentage and the relationship between self-identity and state recognition, and he offers fresh insights on these issues with broad implications for further research.
Williams first offers a new conceptual framework for post-majority parentage. Existing family law doctrines are largely focused on the parent-child relationship when the child is a minor, and in this context, the meaning of legal parentage is one of the most debated topics in legal scholarship today. Williams exhorts the law to recognize parentage beyond a child’s minority as a significant and distinct legal category that is grounded in different normative justifications and thus should be governed by different rules from those that apply during a child’s minority. Williams’s argument in this regard is powerful, since for all that the law focuses on parentage during the child’s minority, the reality is that the parent-child relationship generally lasts much longer after the child reaches adulthood than it does during the child’s minority. Continue reading "Parentage, Identity and DNA"
May 24, 2022 Very Fakeditor
Even before Juliet Stumpf coined the term “Crimmigration” in her 2006 article The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, scholars were developing a steady flow of legal and empirical scholarship focusing on a sharper demarcation and a better understanding of crimmigration – or the merger of crime control and migration control. From its initial strong focus on understanding the legal ramifications of the growing convergence between criminal law and immigration law, over time, the scope of the scholarship widened. Until recently, the main ‘actors’ in crimmigration research were either state-agents such as border guards, immigration officials, the legislature, the police, etc., or migrant communities that were subjected to and affected by crimmigration. Recently, by building on the notion of ‘crimes of solidarity’, NGO’s and activists defending immigrant rights have been introduced as actors subjected to crimmigration.
In their article Solidarity under siege: The crimmigration of activism(s) and protest against border control in Spain, López-Sala and Barbero are describing how, in Spain, repressive tactics are being employed against the state against various activists and immigrant-right initiatives. Their analysis paints a grim picture that unfortunately is illustrative of a European Union-wide development. In response to fears of mass migration to the European continent, many European states have formalized so-called crimes of solidarity, also referred to as ‘intolerable solidarity’. Interestingly enough, whereas this tendency in most European countries was sparked by the so-called 2015 ‘European Refugee Crisis’, the criminalization of activists in Spain predates the ‘crisis’ and is part of an earlier punitive turn that started about 30 years ago. As part of this punitive turn, (im)migration has been generically categorized as a source of ‘criminality’ that must be contained at the border and controlled within the territory. At the same time, rules were put in place to control and sometimes sanction various forms of social protest, as it was framed as a public disturbance. By tracing the legal history, the authors indeed paint a picture of an increasingly intolerant state that is putting various mechanisms in place to control (im)migration and to silence those protesting against the state’s laws and policies. These ‘gag’ laws seem to cover a range of criminal but mostly administrative measures, as the latter category requires far fewer guarantees for defendants, whereas police and the administration have certain privileges and can act with much greater discretion. Continue reading "Criminalizing Soidarity2"
