Monthly Archives: June 2023
Jun 16, 2023 P. T. BabieProperty
Timothy M. Mulvaney and Joseph William Singer,
Essential Property, 107
Minn. L Rev. 101 (2022).
Society is impossible without inequality.
–Napoleon Bonaparte, Emperor of the French
Is it personal choice or the society in which we live that creates unequal distributions of wealth? In Essential Property, Timothy M. Mulvaney and Joseph William Singer agree with the Emperor of the French: the source of inequality lies in the state, or, more precisely, its laws, including private property.
This observation confirms an intuitive sense that in its very essence, private property is both inequality and, that fact notwithstanding, it is not soon to disappear. Too much depends on it. And, frankly, not only is it deeply ingrained in our liberal world, but also very possibly in our DNA. While eliminating private property’s inequality might be impossible, Mulvaney and Singer argue that we can look for ways to reconfigure it so as to reduce its unequal distributions. Continue reading "What Property Makes Us"
Jun 15, 2023 Juliet StumpfLexImmigration
Keeping secrets is so middle school.
When the secret is law, though, the problems mature and proliferate. Faiza Sayed’s The Immigration Shadow Docket uncovers a nest of secret law in the Board of Immigration Appeals (BIA)’s practice of deciding almost 100% of its cases as unpublished, nonprecedential decisions. These decisions are available to government lawyers but not to immigrants or their lawyers, and that makes steam come out of my head.
The BIA decides about 30,000 cases each year, but publishes only 30 of them. Those published decisions are authored either by three-member panels, or by the Board en banc, and they lay out the legal reasoning and findings of the Board. The few published decisions are accessible to the public and citable.
The remaining tens of thousands of decisions of immigration cases are issued by single members of the Board. Sayed calls this the “immigration shadow docket.” The vast majority are summary affirmances and orders, and they cannot be cited as precedent—at least, not by advocates for immigrants. In practice, however, government attorneys and immigration judges access them and cite them in briefs and decisions. Thus, the steam. Continue reading "America’s Secret Immigration Law"
Jun 14, 2023 Veronica Root MartinezLegal Profession
Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law
Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals, __
Harv. L. Rev. __, (forthcoming), available at
SSRN (Feb. 17, 2023).
Once upon a time, when I was a 2L at the University of Chicago, every student who wanted to clerk had to first meet with a professor on the clerkship committee. In anticipation for this meeting, my fellow students and I were required to identify a list of fifty judges that we were interested in applying to clerk for. The professor then provided advice and guidance on that list and each individual student’s likelihood of success of obtaining a clerkship based on the list presented.
I remember my meeting with the professor well. I was very frightened that he might tell me I didn’t have a chance at clerking, and I really wanted to clerk. My fear was, thankfully, unfounded, as he provided me with reasoned advice about the list of judges I had presented him with. My list, I think, may have looked different than that of some of my classmates because I had included every Black federal appellate court judge in the country. I specifically asked the professor about a few of these Black judges, and I remember him saying something like the following: “Most of the Black clerks in this country are hired by Black judges. Apply to them all.” Continue reading "A Better Understanding of How to Improve Demographic Diversity in Federal Appellate Law Clerk Hiring"
Jun 14, 2023 Veronica Root MartinezLegal Profession
Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law
Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals, __
Harv. L. Rev. __, (forthcoming), available at
SSRN (Feb. 17, 2023).
Once upon a time, when I was a 2L at the University of Chicago, every student who wanted to clerk had to first meet with a professor on the clerkship committee. In anticipation for this meeting, my fellow students and I were required to identify a list of fifty judges that we were interested in applying to clerk for. The professor then provided advice and guidance on that list and each individual student’s likelihood of success of obtaining a clerkship based on the list presented.
I remember my meeting with the professor well. I was very frightened that he might tell me I didn’t have a chance at clerking, and I really wanted to clerk. My fear was, thankfully, unfounded, as he provided me with reasoned advice about the list of judges I had presented him with. My list, I think, may have looked different than that of some of my classmates because I had included every Black federal appellate court judge in the country. I specifically asked the professor about a few of these Black judges, and I remember him saying something like the following: “Most of the Black clerks in this country are hired by Black judges. Apply to them all.” Continue reading "A Better Understanding of How to Improve Demographic Diversity in Federal Appellate Law Clerk Hiring"
Jun 13, 2023 Pamela BookmanCourts Law
Justin Weinstein-Tull,
Traffic Courts, 112
Cal. L. Rev. __ (forthcoming, 2024), available at
SSRN (June 11, 2023).
If you (the elite readers of this blog) have ever represented yourself in court, it may have been in traffic court. You know this is a court, and you likely brought (or tried to bring) your lawyerly skills to bear. But in the process, you may or may not have been aware that almost 50% of all cases across the country are filed in traffic court and that this lowest level of justice also provides many people’s closest interaction with the state and the justice system. Yet few of us who study courts think much about traffic courts. Even the recent wave of excellent literature on state and local civil courts (such as contributions to this symposium jotted here, here, and here) often put these courts to the side.
Justin Weinstein-Tull ends this side-lining of traffic courts with a wonderful new article that uses a mixed-methods approach to present a vivid picture of the justice, and injustice, in traffic courts. Weinstein-Tull has conducted 50-state surveys, interviewed traffic court judges, and even sat through the three-day training necessary to become a traffic-court judge in Arizona. The result is an informative and thought-provoking exploration of the courts that many of us interact with, that oversee people’s most likely interactions with the police—at traffic stops—but about which we know so little. Continue reading "Traffic Courts and Civil(?) Justice"
Jun 12, 2023 Jedidiah KronckeLegal History
In the contemporary moment, discussions of international law are difficult to disengage from questions regarding the role of China. Some cast China as a new, revolutionary force set to upend or hasten the demise of the post-World War II order. Others cast China as a binding force for exactly the same order, especially in contrast to the noticeable retreat of its dominant architect, the United States. Moreover, the Chinese Communist Party actively brands its particular engagement with international law as a defining part of its own system of governance—often casting itself in equally contradictory terms as both stalwart and revolutionary.
Such diverse viewpoints draw upon their own versions of the history of international law, both in and outside of China. Ryan Mitchell’s Recentering the World lays out this history—and its relationship to many of these contemporary claims—with China center stage in the development of international law since the mid-19th century. Mitchell does so by synthesizing novel multilingual archival research with a global view of cutting-edge international legal scholarship. Continue reading "Is Chinese International Law Chinese?"
Jun 9, 2023 Thomas BustamanteJurisprudence
At the outset of The Proof, in a passage that grasps the spirit of the book, Frederick Schauer writes:
It would be nice if there were world peace and nonfat bacon, but wishing won’t make it so. … Leaving to others questions about how we or the government ought to act, this book is an attempt to provide some insight into how we do – and, yes, should – confront the factual questions and controversies that are all around us. (P. 4.)
Schauer’s intriguing book analyzes a vast range of subjects related to the practice of giving and evaluating evidence, covering topics such as probability analysis, burdens of proof, statistics, testimony, lie detection, expert evidence, and scientific evidence in criminal law. But only two of the topics covered in the book will occupy my attention now: his hybrid theory of evidence, and his concern about motivated reasoning.
Let us begin with the general account of evidence provided in chapters one and two. A central concern of the book is the need to distinguish between “empirical reality” and “what some or many people prefer or wish that empirical reality to be.” (P. 1.) Evidence matters only for those who want to make sense of this distinction, and who worry about getting the truth of some matter. Evidence is what provides “a justification, or warrant, as philosophers are prone to put it, for believing that something is true – or false.” (Pp. 4-5.) It is, therefore, the “prerequisite for judgments of truth (and falsity)” about anything. (P. 5.) Continue reading "On the Value of Distrusting Ourselves"
Jun 7, 2023 Christopher J. BuccafuscoIntellectual Property Law
In trademark litigation, consumer surveys can determine a number of important doctrinal questions, including the most important one: whether consumers are likely to be confused into thinking that the defendant’s product was made or licensed by the plaintiff. Recently, scholars have questioned the validity and reliability of standard trademark surveys, suggesting that they are easy to manipulate and biased in favor of one party or the other. Wouldn’t it be great, then, if there was a reliable way to determine whether a survey was biased or not? Using neuroscientific imaging, an interdisciplinary group of researchers (including law professor, Mark Bartholomew) has proposed just such a possibility in a new paper, From Scanner to Court: A Neuroscientifically Informed “Reasonable Person” Test of Trademark Infringement.
Trademark surveys can suffer from a number of flaws. They may be explicitly biased in favor of one party or another, for example, by describing the defendant as a “copycat” or the plaintiff as a “trademark bully.” They may exhibit more subtle biases in how they frame questions about similarity and confusion. And, finally, survey participants always know the nature of the survey they are taking, so participants may exhibit “demand effects,” providing what they anticipate are the surveyor’s desired answers rather than their true responses. Continue reading "Can Neuroscience Fix Trademark Surveys?"
Jun 7, 2023 Sam F. HalabiInternational & Comparative Law
As the entire universe of speech, commerce, warfare, and living (Meta’s steep but so far unavailing investments notwithstanding) moves into cyberspace, tying together nearly every corner of the globe, the problem of governing the burgeoning world of virtual interactions and their real-life effects (or alleged effects) has become critical. In his careful and important essay, Section 230 and the International Law of Facebook, Anupam Chander elaborates the critical role of Section 230 of the 1996 Telecommunications Act, what Jeff Kosseff calls the 26 words that created the internet, as the cornerstone protection for a governance regime that prioritizes the flow of ideas and information over one that would “strengthen the hand of those around the world who seek to impose liability for either permitting speech or curbing speech.” (P. 396.)
Stated simply, Section 230 bars liability for those hosting (although they generally must not contribute to) content made available through the internet. Chander’s argument is nuanced. His primary thesis is objective in nature: Section 230’s legal effect is global and far-reaching, finding its way into bilateral and multilateral treaties and shaping adjudication over the responsibility of content hosts in both U.S. and foreign courts. Yet it is the normative elements of the essay that provide the most force, providing a stark—even nightmarish—scenario should Congress, as some members of the chamber have threatened, retreat from Section 230’s essential protections. Continue reading "The 26 Words Legislating Speech on the World Wide Web"
Jun 6, 2023 Albertina AntogniniFamily Law
Yiran Zhang,
The Care Bureaucracy, 99
Ind. L.J. __ (forthcoming 2023-24),
available at SSRN (May 17, 2023).
Whether and how to value caretaking is one of family law’s intractable questions. The California Court of Appeal in Borelli v. Brusseau provides one well-known and widely-taught answer: “even if few things are left that cannot command a price, marital support remains one of them.” Borelli refuses to uphold an oral contract alleged by Grace Brusseau to take care of her husband at home after he suffered a stroke, in exchange for certain property. The court reasons that the contract lacked consideration because the duty of mutual support undergirding the marital relation meant she was already required to provide such care. Thus, the personal services Grace furnished “for the decedent in his home, for the duration of his illness, thereby avoiding the need for him to move to a rest home or convalescent hospital” were rendered for free. “[I]n the majority’s view,” Justice Poché details in dissent, the spouse “had a pre-existing or pre-contract nondelegable duty to clean the bedpans herself.”
Borelli’s outcome is largely unexceptional. The law routinely undervalues, if not entirely devalues, care provided in the context of an intimate, familial relationship. As it turns out, this is not unique to family law. Yiran Zhang’s article, The Care Bureaucracy, cogently shows how endemic the undervaluation of care is, despite beginning from a different premise – namely, that caretaking is work, the economic value of which the government has recognized through Medicaid, “the largest payer in long-term care” and “the most significant driver of the recent trend toward home-based long-term care.” (Pp. 11-12.) That is, even where there is some consensus that the provision of care is necessary and compensable, and even where that care might be undertaken by a non-family member, current regulation falls woefully short in capturing its full extent and assessing its value. The Care Bureaucracy covers a wealth of topics, including issues related to poverty law, employment law, and health care law; this family law Jot focuses on the paper’s intricate, pragmatic, and imbricated discussions of how care is regulated – to the detriment of those who give and receive it. Continue reading "The Persistent Failure to Value Care"
