Yearly Archives: 2023
Dec 20, 2023 Anita KrishnakumarLexLegislation
Jesse M. Cross,
The Fair Notice Fiction, 75
Ala. L. Rev. __ (2023) available at
SSRN (April 21, 2023).
In The Fair Notice Fiction, Professor Jesse Cross provides a much-needed deep dive into one of modern textualism’s core tenets—that giving statutes their ordinary meaning puts people on notice about their legal obligations and therefore promotes the rule of law value of fair notice to the public. The claim to promote fair notice is one that textualism long has asserted, but it has taken on a new importance in the last few years as textualist Justices have come to dominate the modern Court and to loudly proclaim their commitment to identifying a statute’s “original public meaning.”
The Fair Notice Fiction seeks to debunk this core textualist justification. Professor Cross’ central critique is that the idea of providing fair notice to the public through statutory text has always been a fiction—for at least two reasons. First, in the modern era, the reading of statutory text is a “language game accessible only to legal elites.” (P. 1.) Second, throughout most of history, literacy has been low, texts have been scarce, and language barriers have abounded—even in those early democracies often touted as providing fair notice of statutory meaning to the public. Continue reading "Undermining the Fair Notice Rationale for Textualism"
Dec 19, 2023 Sean CoyleJurisprudence
This lively and concise article surveys aspects of the philosophy of corrective (classically, commutative) justice in the domain of the Law of Torts, specifically the law of negligence. It begins by outlining the central problem: that the lawyer’s concepts of equality, principle and right do not seem relatable to the moral concepts most readily attributive to citizens, those of virtue, value and good. In a beautiful analytical movement, the author demonstrates that such divisions are merely apparent, not real. In doing so, the article connects this theme to that of moral luck: the idea that we may not, in fact, be in control of the consequences of our action such, that it is, at least, problematic to ascribe legal responsibility to our negligent actions.
The idea is not new: it reaches back certainly to Aristotle’s treatment of virtue in the Nicomachean Ethics, where he observes that virtue is insufficient for happiness, for a person needs a degree of good fortune to ensure that their efforts are rewarded, and a cursed though virtuous person cannot be described as happy. This relates to the multiple possibilities within which each person moves, sometimes fortunately, sometimes not. The law of negligence represents an intervention into these situations, based not on the form of the will of the acting person, but on external freedom (borrowing terms from Kant). A few sentences are worth quoting in detail:
For corrective justice theorists, Kant’s idea of external freedom provides the normative foundation for the losses and gains that are the outcome of human interaction, and normatively grounds the restoration of these losses and gains. Because your movements and actions have undermined my choices, because in the exercise of your external freedom you have undermined mine, it is justifiable for the judge to restore this inequality and exercise coercion via the law. In other words, the illegitimate use of your force on me justifies law’s force on you. (P. 107.)
The law of negligence thus obliterates the problem of moral luck by suppressing it: it considers external freedom to be the only relevant issue facing the law, to the exclusion of the question of will. The law is essentially retrospective as it looks backward to what has already happened. Continue reading "Negligence and Civil Maturity"
Dec 18, 2023 Christophe GeigerIntellectual Property Law
As the first empirical evidence is published on the consequences of Generative AI systems on labor markets, broad anxiety is felt from creator communities on the effects of this technology on their income streams. Consequently, the question of how to deal with Generative AI from a copyright law perspective is gaining a lot of attention globally. Several lawsuits have been filed in the US by creators against AI operators and the first attempts to legislate that matter have already been introduced at the national level. The EU is currently finalizing an ambitious regulation package called the “AI Act” with important implications for its copyright regime, in particular the implementation of transparency obligations concerning copyright-protected works used to train the AI algorithms. In this context, Martin Senftleben’s new article Generative AI and Author Remuneration is particularly timely and proposes a very inspiring reflection on what could be the way forward regarding copyright reforms in this field.
One of Senftleben’s main concerns is to find a workable approach not to disincentivize AI innovation while at the same time creating new revenue streams for “flesh and blood authors” to secure remunerations that will improve their working and living conditions. Indeed, the starting point of the author is that:
the increasing sophistication of AI systems will inevitably disrupt the market for human literary and artistic works. Generative AI systems provide literary and artistic outputs much faster and cheaper. It is therefore foreseeable that human authors will be exposed to substitution effects. They may lose income as they are replaced by machines in sectors ranging from journalism and writing to music and visual arts. Continue reading "To Pay or Not to Pay (for Training Generative AI), That is the Question"
Dec 15, 2023 Rosalind DixonInternational & Comparative Law
Rarely has a book by a constitutional lawyer had such timeliness: Julie Suk’s monograph, After Misogyny: How the Law Fails Women and What to Do About It, talks about the ways in which women often do too much, and men too little, to sustain the life, work, and health of others.
In 2023, the same message is all around us. Anna Funder’s 2023 much lauded book, Wifedom: Mrs Orwell’s Invisible Life, tells the story of how George Orwell’s literary corpus was built on the back of the contributions of his wife, Eileen O’Shaughnessy, and yet those contributions were consistently minimized by Orwell himself and others writing about his work.
The new mini-series The Change, on the UK’s channel 4, gives a humorous though still highly pointed account of what Suk argues is core to misogyny, namely: the “overentitlement and overempowerment” of men compared to women. The protagonist of The Change, Linda, has spent decades carefully recording the amount of time she spends on household work (to the second), and when she turns 50, she decides that the lack of recognition of that work within the family calls for change, including a well-earned sabbatical from wifedom.
What distinguishes After Misogyny from these parallel accounts of sexism or misogyny is that Suk is a leading comparative constitutional scholar, and a central argument of the book is that constitutional norms offer an important resource in responding to this problem. Continue reading "Towards a Constitutionalism of Care"
Dec 14, 2023 Fred O. Smith, Jr.Courts Law
Federal judges, when deciding on separation-of-powers issues, are not neutral referees in our three-part federal system; they are participants in it. This key observation forms the foundation of Payvand Ahdout’s article. Expanding on this insight, Ahdout argues that in resolving disputes, federal judges frequently refrain from forcing high-ranking federal officials to perform specific actions. She terms this “separation-of-powers avoidance,” a strategy evident in various legal situations, including executive privilege and congressional power to issue subpoenas and file lawsuits. She identifies three categories of separation-of-powers avoidance: embedded avoidance, process avoidance, and fortified avoidance.
In the “embedded model,” courts approach and interpret legal doctrines with an emphasis on circumventing separation-of-powers conflicts. This approach is exemplified by the Supreme Court’s handling of a discovery dispute in Cheney v. U.S. District Court. An organization called Judicial Watch sued the Vice President Dick Cheney under the Federal Advisory Committee Act, seeking information about the newly formed National Energy Policy Development Group. The district court issued discovery orders requiring the Vice President and other high-ranking executive branch officials to disclose information about the group. But Cheney resisted. Without explicitly invoking executive privilege, he petitioned the D.C. Circuit for a writ of mandamus to stop the district court from requiring the disclosure. The D.C. Circuit ruled against Cheney, reasoning that the executive branch must assert executive privilege explicitly to protect itself from discovery. But the Supreme Court reversed, urging against needless constitutional confrontations between the branches. In so doing, it interpreted discovery requirements through the lens of separation-of-powers. Continue reading "Balancing Act: The Federal Judiciary as Both Arbiter and Participant Constitutional Structure"
Dec 13, 2023 Ann E. TweedyEquality
Jessica A. Shoemaker,
Re-Placing Property, 94
Univ. Chi. L. Rev. __ (forthcoming, 2024), available at
SSRN (Aug. 31, 2023).
In Re-Placing Property, Jessica A. Shoemaker demonstrates the extent to which our legal rules about property have allowed real property ownership to become, in many cases, paradoxically completely divorced from place attachment. Drawing from disciplines such as geography and sociology, Shoemaker defines “place attachment” as “a ‘sense of belonging, loyalty, or affection that a person feels for one or more places.’” (P. 15, quoting A Dictionary of Human Geography (Oxford 2013)). With real property increasingly owned by people who have little or no connection to the land itself, including absentee heirs and distant investors who often simply own shares of property through an investment fund, local communities bear the costs of these absentee owners’ choices. Consequently, early American ideals that, at least in theory, favored egalitarian access to ownership and that “reward[ed] productive improvement and agrarian stewardship,” (P. 4), are now being trampled to accommodate elitist ownership patterns that in some ways mirror feudalism. (Pp. 20, 60.)
Professor Shoemaker avoids romanticizing the past by highlighting the fact that “we tend to erase” Indigenous histories of land possession “in favor of a simplified story of American expansion . . . .” (P. 4.) Thus, Shoemaker is not using the past as it actually played out as a model so much as demonstrating that our traditional ideals of access to property ownership, however unevenly and unfairly applied in the past, are undermined by the modern reality that land is becoming increasingly commodified by the rich to the detriment of working-class and middle-class families and individuals, many of whom can no longer afford to buy homes or own farms because prices are being driven up—in some cases by distant investors, many of whom are foreign, and in other cases, particularly with respect to farms, because land is tied up in “hereditary family dynasties.” (P. 60.) Continue reading "Reorienting American Real Property to its Egalitarian Goals"
Dec 12, 2023 Caroline BradleyCorporate Law
Quinn Curtis, Mark C. Weidemaier, & Mitu Gulati,
Green Bonds, Empty Promises (February 6, 2023). Virginia Public Law and Legal Theory Research Paper No. 2023-14, Virginia Law and Economics Research Paper No. 2023-05, UNC Legal Studies Research Paper No. 4350209. Available at
SSRN.
Climate change adaptation (moving towards net zero by shifting to renewable energy and changing behaviors so that we produce fewer greenhouse gas emissions) and mitigation (building resilience in the face of the impacts of climate change) are expensive, and must be paid for somehow. Policy-makers accept that climate change mitigation and adaptation require co-operation between public authorities and private business, and a combination of public and private finance. Green bonds promise to be a component of addressing this need for financing, as well as the interests of investors who want to invest in sustainability. But do they really do this? The urgency of the need to address climate change, together with our reliance on private finance as an important part of the proposed solution, means that this is a really important question. In order to address climate change, green bonds should finance green or sustainable activities, and, preferably, activities that would not otherwise be funded.
In Green Bonds, Empty Promises, Quinn Curtis, Mark C. Weidemaier, and Mitu Gulati present the results of their study of a dataset of green bonds issued between 2012 and 2022 and of interviews with market participants. The authors say that in credible green bonds they would expect to see mechanisms to increase the cost of non-compliance, but, instead, they find “a concerning lack of enforceable promises” (P. 56.) They find some language of commitment in more than half of the bonds in the dataset, although they state that, for varying reasons, they are likely to be overstating the extent to which issuers make firm green commitments (e.g. pp. 17,19). But even where green promises are made, they are not backed up by the usual enforcement mechanisms: none of the bonds in the sample “expressly makes it an event of default for the issuer to fail to live up to its green promises.”(P. 24.) In addition, the authors find that green bonds are evolving away from enforceability over time, now including disclaimers excluding a failure to comply with green promises from the application of a catch-all events of default provision and disclaimers of any duty to pursue green objectives. Continue reading "Unpacking Green Bonds"
Dec 11, 2023 Mae KuykendallConstitutional Law
In African Founders: How Enslaved People Expanded American Ideals, David Hackett Fischer provides a comprehensive survey of African contributions to Americanism at its most aspirational. Fischer gives particulars of knowledge and skills advanced by Africans in the United States and prized by white people in various regional economies. His primary argument, though, is that Africans in bondage, and their descendants, as a result of their unique American experience, formed “a very powerful idea of equity for all, cast in a distinctive moral calculus that rose from the experience of human bondage.” He summarizes: “Africans both slave and free have long reflected on a deep moral paradox in America, between the continuing horror of race slavery and persistence of racial injustice on the one hand, and the hope of expanding ideals of human rights, social Justice, the rule of law, and dreams of liberty and freedom.”
Professor Fischer’s quest to name the African founding of America adopts a deeply empirical commitment that resists white ignorance and can inspire a broad critique of the American jurisprudential and popular attachment to lazy thinking, especially when race is the topic. The book provides a deep refutation of the reasoning process that has produced today’s climate of white resentment of Black visibility (ban on race studies), public role (attacks on prosecutors and judges), and access to all of American life (threats to corporations on hiring and resistance to housing integration). Continue reading "African Founders and Zero-Sum Games in American Culture and the Supreme Court’s Capitalist (White) Imagination"
Dec 8, 2023 Jessica Lind MantelHealth Law
Erin C. Fuse Brown & Mark A. Hall,
Private Equity and the Corporatization of Health Care, 76
Stan. L. Rev. __ (forthcoming, 2024); GSU L. Studies Rsch. Paper, available at
SSRN.
The corporatization of medicine is not new. As Paul Starr masterfully documented in his historical account of American medicine, throughout the 20th Century various private organizations pursued bureaucratic control over the delivery of healthcare. Initially, the medical profession was largely successful in resisting efforts to corporatize healthcare. Several decades of mergers, acquisitions and corporate alliances, however, have firmly entrenched corporate ownership in American healthcare. In their article Private Equity and the Corporatization of Health Care, Erin Fuse Brown and Mark Hall explore the latest chapter of this trend—the acquisition of physician practices by private equity (PE) firms.
An aging population, advancements in medical technology and drug therapies, and other factors have fueled tremendous growth in the health care sector, which today comprises one-sixth of the U.S. economy. As the healthcare sector has expanded, private equity (PE) investors have recognized health care organizations as potential sources for profit-making. In Part I of their article, Fuse Brown and Hall explain that this PE incursion into health care is a particularly aggressive form of corporate investment. When PE firms target physician practices, they assume control over practices’ business strategies and downgrade physician ownership to minority status. This leaves acquired physician practices no longer governed by health professionals with ethical obligations that put patients’ medical needs before profits. Moreover, PE’s goal of boosting profitability leads to a focus on quick fixes and practices designed to maximize revenue rather than long-term operational changes that would enhance the quality and efficiency of care. Continue reading "Safeguarding the Healthcare System from Private Equity’s Potential Abuses"
Dec 7, 2023 Ayelet Blecher-PrigatFamily Law
On the surface, Jennifer Hendricks’s Essentially a Mother is a book about the law of pregnancy and parenthood. On a deeper level, however, it is an especially timely tour de force, which reestablishes the importance of relational feminism as a critical theory that offers valuable insights and lessons for today’s scholars and activists.
Hendricks takes readers on a comprehensive yet concise academic journey across the legal debate over sex equality and accommodations of pregnancy in the workplace; changes in the status of unwed genetic fathers as legal parents under various circumstances; the Constitutional rights of parents over their children; the laws that govern and regulate surrogacy; and finally, abortion. Along the way, Hendricks provides a theoretical overview of the schools of thought that shaped feminist jurisprudence. Continue reading "Why Relational Feminists were Right"
