Monthly Archives: January 2023
Jan 31, 2023 Mary ZieglerLegal History
In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Brett Kavanaugh expressed hope that reversing Roe v. Wade would help deescalate the national abortion conflict. Instead, the months following the decision have opened a new front in the war over reproduction, one in which states have not only criminalized abortion but also explored unprecedented and possibly unconstitutional methods of enforcing criminal laws. Alicia Gutierrez-Romine’s timely, meticulous study of the world of criminal abortion in California offers a powerful glimpse of where we might be heading next. Gutierrez-Romine carefully documents familiar inequities facing low-income and primarily nonwhite patients caught up in criminal investigations, but her book adds to our understanding of the workings of criminal abortion by focusing on a wider cast of characters, especially those facing prosecution for performing or aiding and abetting abortion and providers, including doctors and midwives of color, whose stories are less well known.
Historians such as Leslie Reagan have established that after states criminalized pre-quickening abortion in the later nineteenth century, criminal prosecutions were the exception rather than the rule, at least before the 1940s, and most often took place when a pregnant patient died to medical negligence. Gutierrez-Romine adds nuance to this narrative, exploring the different fates of abortion providers of different races, sexes, and professional statuses. At least at times, status helped to shield white male doctors from the harshest effects of criminal abortion laws—and allowed them to effectively advocate for reform when they did face prosecution. By contrast, physicians of color and midwives faced more scrutiny from the press, from jurors, and from prosecutors. Gutierrez-Romine paints a compelling picture of a system of unequal justice that may closely resemble one emerging in the post-Roe era. Continue reading "The Past and Present of Criminal Abortion"
Jan 30, 2023 Cary C. FranklinConstitutional Law
Richard Schragger & Micah Schwartzman,
Religious Freedom and Abortion,
__ Iowa L. Rev. __ (forthcoming 2023), availible at
SSRN.
Since Dobbs came down, I have given many talks and talked with many journalists about abortion law, and the one topic that always arises is religion. People are aware that the Roberts Court has been deeply solicitous toward religious claimants seeking exemptions from various laws—almost always religious conservatives who refuse to provide services to LGBTQ people, obey COVID restrictions, or provide health plans that cover contraception. People often ask about the prospect of using these expansive protections to secure exemptions from abortion bans for people motivated by religious commitments to seek or provide abortions. Sometimes they ask about using the Establishment Clause to argue that abortion bans are religiously motivated and endorse a religious doctrine many Americans don’t share. People asking these questions are generally optimistic. Sometimes, that optimism is coupled with a certain satisfaction that the Court has painted itself into a corner: the Justices may have expanded protections for religious people in cases involving conservative Christians, but surely, they are now compeled to extend those protections to religious liberals as well.
Richard Schragger’s and Micah Schwartzman’s new article, Religious Freedom and Abortion, provides sharp and insightful analysis of these questions. The article examines recent establishment and free exercise decisions and shows that, in many cases, religious liberals who do not subscribe to conservative Christian conceptions of when life begins or who have religious motivations for seeking or providing abortions should prevail under the Court’s new doctrines. But, the article argues, to think such claimants will prevail is to misunderstand the politics of the Roberts Court’s First Amendment jurisprudence—and the fact that it’s politics all the way down. Continue reading "Religious Liberty for Some"
Jan 27, 2023 Aliza ShatzmanCourts Law
Jeremy Fogel, Mary Hoopes, & Goodwin Liu,
Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals (Nov. 30, 2022), available at
SSRN.
Diversity among judges affects diversity among law clerks. If what gets measured gets managed, California Supreme Court Justice Goodwin Liu opined at a recent Berkeley Judicial Institute event, the dearth of law clerk demographic data has precluded the federal judiciary from making strides toward diversifying appellate chambers. How diverse is the law clerk population? Not very, according to recent survey data by the National Association for Law Placement (NALP). The lack of diversity in one of the legal community’s coveted circles has implications not just for judicial decision-making, but also for the future of the legal profession. As we consider who rises to and through the profession—including to and through the judiciary—diversifying the profession starts with diversifying clerkship hires.
In Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals, retired Federal District Judge Jeremy Fogel, Mary Hoopes, and Liu provide readers with a rare window into one aspect of the opaque clerkship application process: circuit judges’ attitudes about and practices toward hiring diverse clerks. Relying on their relationships and stature as judges (and former clerks), the researchers collect candid insights about judges’ hiring decisions. Under the cloak of anonymity, judges explained that “There’s no monopoly over brains or qualifications; it’s a question of opportunity,” and “Diversity doesn’t mean a diminution in quality; it just means you have to be willing to look in non-traditional areas.” Continue reading "Diverse Judges and Their Diverse Clerks: A Rare Window into Appellate Law Clerk Hiring"
Jan 26, 2023 Anna GelpernCorporate Law
Corporate finance and public finance have a history of sharing market infrastructure, legal forms, and colorful terms (as when an infamous distressed debt trader used “United States’ security” to mean junk). The history of sharing invites reasoning by analogy, which often morphs into genealogy and positions 19th century London as the primordial soup for today’s market institutions. It is a sensible research strategy—London was and is a fruitful place—but formal similarities sometimes obscure critical context and alternative genealogies, leaving lawyers to ponder apparently meaningless clauses and pointless transactional techniques. Enter historians.
Marc Flandreau has a large body of solo and co-authored work about the London Stock Exchange, whose dominant market position and evolving governance practices over the course of the 19th century backstopped financial globalization, colonial expansion, and economic development. Two of Flandreau’s recent papers resonate in particularly intriguing ways with contemporary challenges. Both deal with the problem of inter-creditor equity and seemingly ineffectual contracts. This review will focus on the first, more developed paper. The second is mentioned briefly in closing—” target=”_blank” rel=”noopener noreferrer”>watch this space. Continue reading "All the Roads to the Stock Exchange"
Jan 25, 2023 Edward RubinJurisprudence
David M. Driesen,
Does the Separation of Powers Justify the Major Questions Doctrine? (2022), available at
SSRN.
The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.
The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an institution, and that any ruling it issues about the powers of other institutions must take account its own exercise of power as well. This is, to some extent, your father’s jurisprudence, a basic insight of the Legal Process School that dominated public law scholarship in the decades following World War II. It often serves as a background consideration upon which flashier modern arguments can be built, but there is a crucial difference between assimilating an important insight and forgetting about it. The Court would be well advised to note Professor Driesen’s reminder. Continue reading "A Major Answer To The Major Questions Doctrine"
Jan 24, 2023 Laura Pedraza-FariñaIntellectual Property Law
Janet Freilich & Sepehr Shahshahani,
Measuring Follow-On Innovation (Feb. 20, 2022), available at
SSRN.
Ask any patent law student why we have a patent system, and they are likely to answer that patent law addresses a fundamental market failure: the free-riding by non-inventors on the inventions of others. A patent holder’s right to exclude others from making and using her patented invention addresses free-riding directly, restoring ex ante incentives to invest in innovation. But in solving the free-riding problem, patents create a second-order problem—one that is inextricably linked to the dynamics of innovation itself. Because all knowledge, and therefore all innovation, is cumulative, patents make innovations that build upon a patented feature more costly for parties other than the inventor, who must license an invention if they are to build upon it.
The problem of “follow-on” innovation has long preoccupied both economists and legal scholars. In their excellent paper, Measuring Follow-On Innovation, Janet Freilich and Sepehr Shahshahani contribute to this debate by bringing together both a deep understanding of patent law doctrine and precise econometrics research. In so doing, they make important contributions not only to the empirical literature, but also to our current theoretical thinking about the impact of patents on follow-on innovation. Continue reading "How Do Patents Influence Cumulative Innovation?"
Jan 23, 2023 Sheila Vélez MartinezEquality
Despite our long historical presence, there is a general sociolegal invisibility of Latina/os in the United States. As with other traditionally subordinated communities within this country, the combination of longstanding occupancy and persistent marginality has fueled an increasing number of contemporary Latina/o legal scholars to engage with and try to define the contours of what it means to be Latino in the United States, as well as questions of what is our place/space now and in the future of this nation, which, as the author highlights, “thinks of itself as the conscience of the world.”
Inventing Latinos by Professor Laura Gomez is an invaluable contribution to the growing literature on Latino studies because it not only tackles the question of how Latinos came to be in the context of the United States but also looks forward and asks: “What is at stake?” and “What is to be done?” This book is important because it looks for the answers to these questions by interrogating the complicity of colonialism, imperialism, and white supremacy in inventing and maintaining hierarchies of ethnicity and race as a central part of the American project. Continue reading "How Latinos Came to Be, What Is at Stake, and What Is to Be Done"
Jan 20, 2023 Rosalind DixonInternational & Comparative Law
In his important new book, The Law as a Conversation Among Equals, Roberto Gargarella offers a new vision for both democratic politics and democratic constitutionalism. Politics, Gargarella argues, should be more both egalitarian and participatory, and premised on a form of grassroots “conversation among equals” rather than elite Schumpeterian-style competition or bargaining. Constitutionalism, in turn, should do more to enable and encourage this kind of participatory politics – through citizen assemblies as key part of a process of constitutional design and amendment, and “dialogic” models of judicial review that encourage and empower democratic participation.
Why? The current disillusion with democracy, Gargarella argues, is driven by a fundamental desire for – and indeed expectation of – voice and participation on the part of citizens, when current democratic and constitutional models remain largely non-participatory in nature. This mismatch has grown over time and is now in urgent need of redress if we are to restore faith in the democratic constitutional project. Continue reading "Conversation or Competition Among Equals"
Jan 19, 2023 Jessica Lind MantelHealth Law
Jaime S. King, Alexandra D. Montague, Daniel Arnold & Thomas L. Greaney,
Antitrust’s Healthcare Conundrum: Cross-Market Mergers and the Rise of the System of Power, __
Hastings L. J. __ (forthcoming 2023) available at
SSRN.
In Antitrust’s Healthcare Conundrum: Cross-Market Mergers and the Rise of the System of Power, Jamie King, Alexandra Montague, Daniel Arnold, and Thomas Greaney highlight a significant gap in federal and state antitrust enforcement policy─the growing market power of healthcare systems than span multiple local geographic markets. Although antitrust enforcers have long assumed that mergers and acquisitions among providers competing in different geographic markets pose little threat to competition, the authors persuasively argue that this assumption is wrong. To support antitrust enforcement in this area, the article proposes an initial framework for cross-market merger analysis that draws upon the insights from antitrust caselaw, guidance documents from American and European Union antitrust agencies, and economic and legal scholarship.
In their review of lessons learned from conglomerate mergers outside of the health care context, the authors identify two key factors suggestive of anticompetitive effects. First, the merger creates linkages between the markets served by the merging entities when their products or services are related or complementary and can be packaged together for sale to a common customer. Second, when significant, those linkages can generate pricing power that allows one or more of the merged entities to raise prices. The article then examines how cross-sector health mergers across geographic markets can create linkages that satisfy these conditions. Continue reading "Challenging Anticompetitive Cross-Market Health Mergers"
Jan 18, 2023 Brian BixFamily Law
Rachel Rebouché,
Bargaining about Birth: Surrogacy Contracts During a Pandemic, 100
Washington University Law Review (forthcoming, 2023), available at
SSRN.
The United States is an outlier among other nations on the matter of surrogacy. While other countries are cutting back on the practice (not allowing payments to surrogates beyond compensation for expenses, allowing use only by intended parents from their own countries, or prohibiting it entirely), the trend in the United States is in the other direction: more states authorizing surrogacy and enforcing surrogacy agreements, and more states authorizing commercial surrogacy (i.e., payments to surrogates beyond their expenses), with only a few states putting residential restrictions on who can use the process. In Bargaining about Birth: Surrogacy Contracts During a Pandemic, Rachel Rebouché reports that 47 states, “either through statute or case law” (P. 6, footnote omitted), authorize surrogacy. This article, and Rebouché’s previous work, artfully explore the way that surrogacy is a practice that depends on a mixture of legal and extralegal norms.
The particular focus of the article is on how surrogacy practice was affected by the pandemic, with surrogates and intended parents negotiating restrictions on travel and potential disagreements regarding inoculation and isolation. On the whole, though, the particular complications of COVID are presented primarily as examples of more general truths about how surrogacy works. Continue reading "Divergences Between Surrogacy Law and Practice"
