Monthly Archives: February 2023
Feb 28, 2023 Kevin CopeInternational & Comparative Law
Much of traditional international law scholarship takes law as exogenous. That is, it starts with the law as enacted, and analyzes the morality or consequences of the law, or it makes a case for changing it to achieve more just results. But researchers over the last couple of decades have increasingly used the methods of international relations to tackle traditional questions of international law. Now, questions relevant to international lawyers are increasingly taken up by political scientists. Yet, due in part to the respective fields’ differing languages and methods, a sizeable gulf remains between them.
Studies like Sheppard and von Stein’s excellent article, Attitudes and Action in International Refugee Policy: Evidence from Australia, recently published in the journal International Organization, are helping to bring the two fields closer. Continue reading "How Refugee Norms Can Influence the Public"
Feb 27, 2023 Rebecca ZietlowConstitutional Law
Bradley Rebeiro,
Douglass’s Constitutional Citizenship, __
Geo. J. L. & Pub. Pol’y __, (forthcoming 2023), available at
SSRN.
Frederick Douglass was a monumental presence in the antebellum era, a leader in the antislavery movement, and an essential figure in the Reconstruction Era. Until now, however, legal scholars have largely neglected to plumb the depth and breadth of his philosophical works. In Douglass’s Constitutional Citizenship, Bradley Rebeiro presents Douglass as not only a skilled political strategist, but also a sophisticated philosopher who articulated a detailed theory about the link between citizenship and fundamental rights.
According to Rebeiro, Douglass adopted a broad vision of citizenship rights to support his argument that Black people were part of “the People” protected by the United States Constitution. Rebeiro explains, “The Constitution’s Preamble set out a citizenship worthy of one’s allegiance and devotion, if only the Union were to embrace fully the promise of its own aspirations as articulated in the Declaration of Independence and reimagined in the Gettysburg address.” In Dred Scott v. Sandford, the United States Supreme Court reached the opposite conclusion. By contrast, Douglass’ writings provided a blueprint for the full emancipation of enslaved people. It was this emancipatory project—one that entailed not only the end of enslavement, but inclusion as equal citizens in the national polity—that eventually animated the Reconstruction Congress. Continue reading "Belonging, Community and Allegiance: Frederick Douglass’s Theory of Citizenship"
Feb 24, 2023 Suja A. ThomasCourts Law
They do justice differently in the UK. Although the United States based its constitutional right to a jury trial on the right in England, the right to a jury trial no longer exists in England in most civil cases including employment discrimination cases. For employment discrimination disputes, a three-person panel consisting of a judge, a lay person from the employee side and a lay person from the employer side decide the matter. The Tribunal decisions are published in an online searchable repository. This database is the subject of this excellent article, which examines the reason for and problems with such a publicly available searchable vehicle. In addition to giving us the opportunity to learn about this database, the article also leads us to compare the present US system to the UK’s.
The authors recognize that the rule of law there requires open justice, which in turn compels publication of judgments. This is also compelled by statute and related to the common law right of access to the courts. For over five years, Employment Tribunal decisions from England, Scotland, and Wales have been published online and thus been easily accessible to the public including employers. The database has been accessed by, among others, researchers and private companies. Continue reading "Can the US Learn from Open Justice in UK Employment Tribunals?"
Feb 23, 2023 Sarah BursteinIntellectual Property Law
Jake Linford, Justin Sevier & Allyson Willis,
Trademark Tarnishmyths (Aug. 6, 2022), available at
SSRN.
Federal trademark law now protects certain marks against “tarnishment.” If a mark is associated with “bad” things such as drugs or sex, the theory goes, that may harm the seller’s reputation and dilute the mark’s “commercial magnetism.” The theory sounds plausible enough, in theory. But what if that is not how it works in practice?
In Trademark Tarnishmyths, Linford, Sevier, and Willis add to the growing literature that empirically tests this theory of trademark tarnishment. The authors conducted two experiments in which famous marks were associated with sex, drugs, or sacrilege. The authors assert that theirs is “the first test of whether drug-related and sacrilegious uses tarnish appropriated marks, in two separate studies.” (P. 9.) Continue reading "Do Sex and Drug Associations Tarnish or Burnish Trademark Reputations?"
Feb 22, 2023 Douglas NeJaimeFamily Law
Clare Huntington, Pragmatic Family Law, __ Harv. L. Rev. __(forthcoming 2023).
About two-thirds of states in the U.S. have functional parent doctrines—doctrines that extend at least some parental rights and obligations to an individual based on developing a parent-child bond and parenting the child, regardless of a biological or legal tie to the child. Progressive parentage reforms that dislodge parental recognition from traditional preoccupations with marriage and biology have in recent years spread in states controlled by Democrats, primarily in the Northeast and on the West Coast. Yet, the map of jurisdictions with functional parent doctrines does not look like the electoral college map in the 2020 presidential election. Instead, functional parent doctrines exist in Connecticut and Kentucky, New Jersey and Nebraska, Washington and West Virginia.
The story of functional parent doctrines is not anomalous. Other important interventions in the family—from the legalization of gestational surrogacy arrangements to the passage of Pregnant Workers’ Fairness Acts to the funding of universal pre-K programs—appear to defy the red-blue divide of contemporary America. Why have reforms of this kind—reforms that implicate divisive questions of reproduction, parenthood, gender, and sexuality—seemingly skirted the country’s hyper-polarization? In her forthcoming article, Pragmatic Family Law, Clare Huntington offers an answer: a pragmatic approach to lawmaking and adjudication. Across a range of family law issues, Huntington argues, “judges, legislators, administrators, and others are largely setting aside abstract ideals and political ideology and instead focusing on whether a doctrine or policy promotes core aspects of family and child wellbeing[.]” (P. 3.) Relying on “experience-based learning [and] empirical evidence,” decisionmakers are developing “context-specific solutions” that meet families where they are. (P. 4.) Continue reading "How to Solve Problems for Families"
Feb 21, 2023 Shelby D. GreenProperty
As Professor M. Carol Rose so famously wrote years ago, the law of property is about “crystals and mud.” In Professor Lee Anne Fennell’s view, there is perhaps no muddier area than the law of takings, and made even more so by Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021).
In this 2021 case, the U.S. Supreme Court ruled that a state regulation that gave union organizers access to agricultural worksites for up to three hours per day for 120 days per year, effected a per se taking by physical invasion. Just as we thought we had understood the broad types of takings, according to Professor Fennell, the Court devised “a new per se takings contraption…throwing physical impositions on owners into it wholesale, along with bewildering means of possible extrication.” (P. 3.) Continue reading "Reconfiguring the Escape Rooms for a Clearer Path to Takings"
Feb 20, 2023 Myrisha LewisHealth Law
As scholars and the public consider the extensive consequences of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, Professor Khiara Bridges’ article, The Dysgenic State: Environmental Injustice and Disability-Selective Abortion Bans, published shortly before Dobbs was released, adds another important lens to that analysis. Her article identifies and explains the “dysgenic state.” While the eugenic state was motivated by a desire to eradicate what it classified as “disability,” the dysgenic state fails to protect its citizenry from environmental toxins and compels its citizens to give birth to children whose health is impaired by those toxins. Further, environmental toxins have disproportionate impacts on people of color and individuals of lower socioeconomic status, and after controlling for socioeconomic status or class, “people of color are more likely to be exposed to environmental harms in their communities.”
There is significant scholarship on the impacts of abortion restrictions, especially scholarship emphasizing its restrictions on low-income individuals and people of color. Professor Bridges discusses these hurdles and abortion restrictions more broadly, as well as adds an additional perspective on these matters. The Article focuses on the role of reason-based abortion bans specifically, namely race-selective, sex-selective, and disability-selective bans. Continue reading "The Enduring Goals of the Eugenics Movement: The Connection Between Environmental Harm, Disability, and State-Reduction of Reproductive Rights"
Feb 17, 2023 Eric J. MillerCriminal Law
Lahny Silva,
The Trap Chronicles, Vol. 2: A Call to Reconsider “Risk” in Federal Supervised Release, 82
Maryland L. Rev. _ (forthcoming 2023), available at
SSRN.
It is a truism that, in the United States, powers and resources—often called “capabilities”—are not spread equally across people and groups. It is equally plain that individual vulnerabilities—incapabilities (or disabilities, broadly conceived)—become magnified when that individual is a member of a group targeted for special attention through criminal processes. For the most part, recent attention has been directed at the ways in which policing and imprisonment enforces oppression on the basis of group membership, rather than as magnifying individual vulnerabilities. Perhaps that explains why one of the blind spots of much criminal procedure writing and the current abolition movement are those carceral institutions, including the institution of probation, that exist outside the police and the prison. Centering probation reveals some of the ways in which individual powers and resources are disrupted through both group membership and institutional oppression.
One of the few places in which the issues surrounding probation, parole, and supervised release get something of an airing is in the context of low-level criminal courts as described by some of the recent “misdemeanor” scholars, and has been described for years more by problem-solving-court scholars (of whom Professor Lahny Silva is one). Professor Silva’s more recent articles have more directly critiqued the rules and practices that govern federal probation and reentry in the context of the War on Drugs. In The Trap Chronicles, Vol. 2: A Call to Reconsider “Risk” in Federal Supervised Release, Professor Lahny Silva distinguishes between approaches that treat probation as a form of risk management and as a form of resource management. Continue reading "Trapped in the Probation Net"
Feb 16, 2023 Omari SimmonsCorporate Law
Atinuke O. Adediran,
Disclosing Corporate Diversity, 109
Virginia L. Rev. __ (forthcoming 2023), available at
SSRN.
Atinuke Adediran’s insightful article, Disclosing Corporate Diversity, advances the contemporary discussion by examining the legacy and limitations of extant and proposed corporate diversity disclosure approaches. She proposes an alternative diversity disclosure regime based on more comprehensive statistical and forward-looking elements to inspire tangible changes.
Over 50 years ago, Ralph Nader and a group of Washington lawyers challenged General Motors Company (GM) over such critical concerns as product safety, environmental impact, and diversity. The 1970 Project on Corporate Responsibility sought shareholder approval of several resolutions. One would have expanded the board to include three directors nominated by constituent groups of employees and consumers. Another would have required GM to publish information on its auto safety, pollution control, and minority hiring policies. Continue reading "Improving Diversity Disclosures"
Feb 15, 2023 David HoffmanContracts
Keith Hylton,
Waivers (2022), available at
SSRN.
There is nothing more worth celebrating than articles you learn from even when you think they are wrong from soup to nuts. Keith Hylton’s new draft, Waivers, is that kind of piece for me. In the paper, Professor Hylton considers waivers, which as Professor Bob Hillman once described, are “crazy stuff.” They aren’t necessarily contracts and need no consideration; they extinguish legal rights with the lightest of touches, but can be retracted just as easily, except when they can’t; and they are subject to a policing regime that varies considerably between states and across time. Is waiver x enforceable can be one of the most difficult questions for contract and tort jurists to answer. And yet, as the Waiver Society Project has illustrated, waivers are increasingly ubiquitous. We need clear thinking about this phenomenon, and Waivers is therefore a paper I like lots, even though I reject its premises, analysis and conclusion.
The Article summarizes some of the skeptical law on waivers, and the scholarly worries which helps to justify it. It’s fair to say that Professor Hylton, as a practicing legal economist, is not convinced by claims that waivers are bad for the rule of law, create externalities that can’t be managed, undermine democratic control over the lawmaking power, or reduce individuals’ dignity. But he does summarize those complaints lucidly and fairly. He then offers a defense of waivers that starts by first providing the ideal case—fully informed consumers—and then a more realistic one. The argument that will be of most use to you, I suspect, is his claim that waivers (which can stand in for other kinds of boilerplate) have social value even when they are unread, unknown and adhesive. As he says, firms will benefit from waivers regardless of whether consumers know what they’ve lost; in competitive markets waivers thus can be assumed to result from consumer choices between products based on price, and maximize social welfare. Continue reading "Waivers Are Some Crazy Stuff"
