Yearly Archives: 2022
Apr 27, 2022 Mathilde CohenInternational & Comparative Law
E. Tendayi Achiume,
Racial Borders, __
Geo. L. J. __ (forthcoming, 2022), available at
SSRN.
If you are a citizen of North America, Europe, Australia, or New Zealand, chances are that before the onset of the pandemic you rarely had to think twice before crossing a border. Armed with your passport and a smile, the world was wide open to you. Yet, since March 2020 you may have encountered for the first time what it means for a border to be closed—or barely open—to you. E. Tendayi Achiume’s pathbreaking new Article, Racial Borders, powerfully evinces how this experience is racialized given the asymmetry between the hyper-mobility of some compared to the enforced immobility of the majority of the world’s population, as echoed in the bell hooks quote wrapping up her analysis, “[f]rom certain standpoints, to travel is to encounter the terrorizing force of white supremacy.” Achiume concludes by emphasizing that the issue of racial borders is not primarily an immigration problem but rather one that implicates our international legal order and its fundamental inequities.
What is a national border? What is a territorial border? Achiume uses “the term ‘racial borders’ to refer to territorial and political border regimes that disparately curtail movement (mobility) and political incorporation (membership) based on race and sustain international migration and mobility as racial privileges.” Continue reading "Borders and Race as Intertwined Forms of Exclusion"
Apr 26, 2022 Emma CaveHealth Law
Law and Legacy in Medical Jurisprudence: Essays in Honour of Graeme Laurie, edited by Edward Dove and Niamh Nic Shuibhne, includes 18 essays that explore legacy in its various forms, and in various contexts, drawing on the many impacts and innovations to date of medical jurisprudence pioneer, Graeme Laurie.
The volume does three things particularly well. Firstly, it serves as a Festschrift honouring a great scholar. Laurie recently stepped down from the Chair of Medical Jurisprudence at the University of Edinburgh to pursue other projects. His intellectual legacy is profound, and whilst he has written on almost every medical law issue he is particularly well known for his work on liminality, human tissue, genetic privacy and information governance, and his co-authored text book on medical law. His contribution to the next generation of scholars is equally impressive, and fortunately is set to continue in his role of Professorial Fellow. Continue reading "Laurie’s Legacy"
Apr 25, 2022 Kaiponanea MatsumuraFamily Law
Jeffrey Rachlinski and Andrew Wistrich begin their article, Benevolent Sexism in Judges, with an epigraph that, in its pithiness, cannot be improved upon: “The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.” Perhaps the most infamous proof of this claim can be found in Justice Joseph Bradley’s concurring opinion in Bradwell v. Illinois, which points to “the natural and proper timidity and delicacy which belongs to the female sex,” as well as her “paramount destiny . . . to fulfil the noble and benign offices of wife and mother,” as reasons to deny Myra Bradwell a license to practice law in Illinois. The stereotypes that women are natural caregivers, more nurturing and attentive to their children than men, persist to this day, undergirding unequal treatment in the workplace, burdening nonconforming individuals, and discounting efforts of men who are excellent parents.
In some instances, however, these same stereotypes may favor women. Rachlinski and Wistrich set out to test this phenomenon, which they term “benevolent sexism.” They study whether judges are affected by gender bias in two contexts where women regularly experience better outcomes than men: child custody disputes and criminal sentencing. Judges are supposed to be impartial in their decisions and are typically forbidden from relying on gender when determining outcomes. The confirmation of gender bias would therefore be an important (albeit unsurprising) finding. Continue reading "Judging in the Shadow of Gender"
Apr 22, 2022 Martha ErtmanContracts
Fred O. Smith, Jr.’s complex and ambitious article On Time, (In)Equality, and Death wakes us up to what we owe the dead, especially the dead who have suffered mass, systemic horrors such as slavery. The article dexterously ties a relatively niche doctrinal area — legal rights and duties regarding dead bodies — to the monumental and pressing question of what we who live owe to the dead and their descendants. His core contention is that the living act as trustees for the dead, not just as individual embodiments of their lineal relations. Moreover, we violate our duty as trustees when we fail to hold and curate society’s collective memory to also honor evolving norms of equality and anti-subordination.
Bottom line: Our generation is complicit in harms of past generations unless we recognize and remedy mass horrors. While he discusses harms caused by both slavery and the colonization of Indigenous peoples, this Jotwell piece focuses on slavery. Continue reading "Debt(s) We Owe the Dead as Reparations"
Apr 21, 2022 Maneesha DeckhaEquality
If pressed to answer the question “Why are humans equal?” or “What grounds our equality in liberal legal orders?”, the answers might run from the circular (“our common humanity”), to the sacred and unprovable (“human dignity”), to the universally posited but untrue (“our capacity to reason”). Despite the dissatisfying nature of these conventional responses, many of us do persist in believing in human equality and also approve of its exalted conceptual stature in our legal systems. Yet, if we take a closer look at equality’s Lockean foundations in the common law, as Jishnu Guha-Majumdar would have us do in his novel article, Lyons, and Tygers, and Wolves: Oh My!: Human Equality and the “Dominion Covenant” in Locke’s Two Treatises, we might have to question the presumed benign nature of the idea of human equality. Guha-Majumdar asks us to consider that our equality jurisprudence, derived as it still is from Locke’s liberal humanism, is premised on something highly unequal, and indeed violent and tyrannical: the domination of nonhuman animals.
The title of Guha-Mujamdar’s article evokes a scene in the 1939 Hollywood film classic, The Wizard of Oz where Dorothy, the Scarecrow, and the Tin Man link arms and chant a verse (“Lions, and tigers, and bears! Oh My!”) to express their fear of who they may encounter as they make their way through a dark forest on their way to Oz. Of course, the lion they do end up meeting is soon exposed as lacking the courage seen by humans to be characteristic of male lions to do anyone harm; this is then one of the character “flaws” that propel the foursome onward to ask the Wizard for help (with Toto, of course, alongside them). The verse though reminds us of the threat posed by “predator” animals. It is this threat that Guha-Majumdar claims gives rise to “a dominion covenant” between all humans, God, and nonhumans that is central to Lockean liberalism. Continue reading "Equality’s Animal Problem: Normalizing Domination and Enabling Racism with Locke"
Apr 20, 2022 Aziza AhmedCriminal Law
In a moment when mass incarceration, police reform, and abolition are dominating national headlines, Aya Gruber’s book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, takes on one of the most complicated questions of the politics of policing and incarceration: gender violence. Her book provides a history of the uncomfortable relationship between the carceral state and feminist organizing to end violence against women. And, it offers a path forward that begins to address mistakes of the past by reigniting those modes of feminism focused on poverty, welfare, and race that were sidelined with the rise of what is now called “carceral feminism.”
Gruber begins her book by connecting the dots between the anti-sexual violence activism of the 19th century and today. In doing so, Gruber centers the role of race in structuring how imaginaries of sexual exploitation and violence occur. The voices of dominant groups (including white feminists) constructed the larger social narrative of sexual violence. Their ideas of sexual exploitation were shaped by the racialized ideas undergirding the political economy of the time, including the anti-immigrant sentiments of Chinese exclusion and the racist ideologies wrapped into slavery. Continue reading "Recovering Feminist Lessons from the Past for a Less Carceral Future"
Apr 19, 2022 Sergio J. CamposCourts Law
“Staffers, staffers, staffers.” That is the number one rule of congressional testimony. To provide some context: U.S. senators and representatives are elected to represent large constituencies with diverse and often conflicting interests. To respond to constituent concerns, Congresspersons rely upon their staff to help them understand complex issues. The key in congressional testimony is not to convince the Congressperson but the staffers of the rightness of your position. It is advice that proceduralists like me appreciate.
Myriam Gilles is adept at talking to staffers, as demonstrated by two examples of her submitted congressional testimony that I like lots. The first (“Justice Restored”) concerns the Forced Arbitration Injustice Repeal (“FAIR”) Act, a house bill that would prohibit forced arbitration in a number of consumer and employment settings. The second (“Silenced”) concerns the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which recently became law and prohibits arbitration agreements involving claims of sexual assault or sexual harassment. Continue reading "Talking the Talk to Walk the Walk"
Apr 18, 2022 Christopher M. BrunerCorporate Law
As efforts to improve the sustainability of corporate operations advance, growing attention has naturally turned to the form and degree of sustainability-related disclosures that large publicly traded companies are required to make. Various constituencies, including institutional investors, have increasingly demanded robust disclosures of information related to a range of environmental, social, and governance issues impacted by corporate activities. These matters are typically lumped together as “ESG disclosure” in capital-market parlance, and the U.S. Securities and Exchange Commission (SEC) has recognized the need for reform.
However, a host of vexing issues complicate such reform efforts. These include the degree to which current disclosure rules already reach such issues; the extent of reforms that could be pursued within the SEC’s market-oriented statutory mandate and financially driven conception of materiality; and – most significantly – the efficacy of disclosure-based regulation as a means of addressing complex global challenges like climate change. Modernizing ESG Disclosure, a recent paper by Virginia Harper Ho, tackles these weighty and interrelated challenges, providing detailed and nuanced analyses of where we stand, what the SEC could do within the current framework, and the more fundamental statutory reforms that would be required to produce an ESG disclosure regime more substantially contributing to the overarching goal of corporate sustainability. Continue reading "ESG and the SEC"
Apr 15, 2022 Mark KendeConstitutional Law
Professor David Han addresses the question of how technological change is having an impact on constitutional rights interpretation. He focuses on the Fourth Amendment and the First Amendment. His central thesis is that the rule-based approach employed by the Supreme Court in these areas no longer functions adequately. The Court has long justified its reliance on a categorical interpretive modality on the ground that it has many advantages, such as clarity, predictability, history, and formalism. Han argues that despite these ostensible benefits, the rule-based approach cannot accommodate the rapid pace of technological change. His arguments are quite persuasive, with only a few exceptions.
Regarding the Fourth Amendment, he draws a dichotomy between older law enforcement methods and new, more constant forms of modern surveillance. The Court has found that newer mechanisms such as the GPS, mass tracking, and data analysis break old barriers and clearly violate privacy interests. These modern tools make monitoring “relatively easy and cheap.” By contrast, beepers, bank records, logs, and pen registers are not nearly as effective. Han relies heavily on Orin Kerr’s view of the Fourth Amendment and new technology, encompassed in the flexible concept of an “equilibrium adjustment” approach. In other words, as the privacy invasion becomes more serious, the need to protect Fourth Amendment rights increases. See United States v. Jones, 565 U.S. 400 (2012) (GPS); Carpenter v. United States, 138 S. Ct. 2206 (2018) (cell phone pings). These Court decisions therefore found Fourth Amendment violations. Continue reading "Loose Constitutional Interpretation for a Changing Technological World"
Apr 14, 2022 Deborah DinnerLegal History
Caley Horan ends her compelling new history with a description of two divergent imaginaries about insurance. In 1914, philosopher Joyce Royce gave an address at Berkeley, in which he described his utopian vision for a global insurance community. Cooperation among the world’s nations might insure for a multiplicity of hazards, from war to natural disasters, and foster international solidarity in the process. In 1955, author Frederik Pohl offered wrote a novel that offered a far more cynical, dystopian view of insurance. Preferred Risk depicted a corporate entity that insured every conceivable risk—but only for those classified as meritorious. Those deemed “uninsurables” struggled to survive on the margins. In Insurance Era: Risk, Governance, and the Privatization of Security in Postwar America, Horan explains how these conceptions of insurance have competed in modern U.S. history and why, by the twenty-first century, we are much further from Royce’s vision and closer to Pohl’s.
By examining the second half of the twentieth century and synthesizing the study of multiple types of insurance, Horanmakes an important contribution to a growing literature on insurance history. Insurance Era also makes a potentially dry subject come vibrantly alive by situating economic ideas in their cultural contexts and weaving legal and social theory into the historical narrative. Horan’s clear and beautiful language propels her readers through her deep dive into the archive of insurance operations and excavation of complicated actuarial concepts. Ultimately, she shows how private insurance taught Americans to conceive of themselves and others in actuarial terms, transformed the built environment, fractured social identities, and deepened socio-economic inequalities. Continue reading "Actuarial Logic and American Social Life"
