Yearly Archives: 2023
Aug 3, 2023 Dara E. PurvisFamily Law
It can be difficult to imagine today, but in 2015 when Obergefell v. Hodges was decided, it seemed to many people that LGBTQ equality was nearly won, at least as to family law. Some employers, courts, and state legislatures even rolled back programs or protections for LGBTQ couples on the logic that those couples could marry and no longer needed things like domestic partnerships that replaced some of the legal benefits of marriage. Such optimism as to the impact of marriage equality was unfounded, of course, and in today’s political climate seems laughably naive. Marriage equality did not signal victory of LGBTQ equality generally, nor did it even eliminate different legal treatment of LGBTQ families, as Susan Hazeldean incisively demonstrates in Illegitimate Parents. Professor Hazeldean provides a comprehensive explanation of one of the starkest differences remaining in family law: unmarried same-sex couples are not recognized as legal parents in many circumstances where unmarried different-sex couples are.
As Hazeldean traces in her article, post-Obergefell optimism even convinced many judges. One particularly pointed example Hazeldean provides is a Kentucky court of appeal judge, who argued that choosing not to marry should be understood as effectively waiving parentage claims even to a child that the unmarried partner raised from birth. (P. 1599.) But as Hazeldean shows with a fifty-state survey of parentage laws, states vary wildly in how much protection they give parental relationships linking both members of unmarried same-sex couples and their children. In most states, Hazeldean points out, marriage is the only way for both members of the couple to establish a legal parent/child relationship. Continue reading "Unmarried Same-Sex Parents: Obergefell’s Failure and Promise"
Aug 2, 2023 Paul HorwitzConstitutional Law
At least at this moment, one will find no uses of the word “scholactivism” in the Secondary Sources database on Westlaw. Yet readers encountering this neologism here will have little difficulty getting the gist of the word. They will have seen similar terms, like “scholar-activist” or “engaged scholarship.” They may believe the academy is increasingly welcoming of such approaches. They certainly know that in the United States, scholars of this stripe increasingly are targets for legislative interference. But they won’t puzzle over the word itself. That suggests a question worth examining. This is exactly what Oxford’s Tarunabh Khaitan has done, in an excellent article, along with a subsequent response to critics.
Although scholactivism is celebrated by some, Khaitan voices reasons for concern. His take is striking. It’s not the standard argument for “value neutrality in scholarship or pedagogy.” It has no specific political valence. And although it assumes a particular “role morality” for scholars centered on a devotion to “truth” and “knowledge,” it acknowledges that “every human activity—including scholarship—is permeated by power.” Neither, however, does Khaitan proceed by drawing a line between “good” and “bad” scholarship based on its outputs. Rather, he focuses on a motive-based account of scholactivism, and suggests that even scholactivism’s supporters should reject it for “instrumental reasons.” Continue reading "Constitutional Scholactivism, Foreign and Domestic"
Aug 1, 2023 Natsu Taylor SaitoEquality
Property, as we have come to know and protect it, is dispossession. This is the heart of Sherally Munshi’s Dispossession: An American Property Law Tradition, a carefully researched and richly nuanced piece that’s brilliant in the simplicity and clarity of its message. As Munshi illustrates, what appears as property from a vantage point of privilege may be understood equally validly as dispossession and this implies that the injustices associated with commodification and inequitable distribution cannot be redressed except from below. Not only from the perspective of those most dispossessed, but also, quite literally, from the ground up.
“The property law canon is full of forgetting.” (P. 1031.) Munshi’s stated intent is to develop a counternarrative of dispossession utilizing what we’ve learned from critical race theory as well as studies of settler colonialism and racial capitalism. Dispossession develops this narrative beautifully, enriching both property and critical theory by incorporating equity-minded insights from contemporary Indigenous and Black activists who counter the “uplifting narrative of national progress and racial redemption” that legal discourse and education promote and perpetuate. (P. 1031.) Continue reading "Property, Viewed From Below"
Jul 31, 2023 Tom C.W. LinCorporate Law
Pamela Foohey & Christopher K. Odinet,
Silencing Litigation Through Bankruptcy, 109
Va. L. Rev. __ (forthcoming 2023), available at
SSRN (February 20, 2023).
It is often said that crisis reveals character. In adversity, an individual’s values and integrity are tested and brought into the light – to shrink or steel in the crucible of calamity and conflict. Perhaps the same can be said of corporations and corporate governance in crisis.
In a forthcoming article, Silencing Litigation Through Bankruptcy, Professors Pamela Foohey and Christopher Odinet offer an insightful, critical view of how some corporations have responded to crisis by using bankruptcy law to silence survivors, exacerbate injuries, and hurt the public in the face of significant litigation. Through a thoughtful examination of businesses and other organizations using the bankruptcy code as a sword to cruelly suppress rather than a shield to carefully reorganize, the article makes a persuasive case for rethinking and reforming legal and business practices during crisis. In doing so, the article informs, expands, and challenges the ways one thinks about corporate governance. Continue reading "Litigation and Corporate Social Bankruptcy"
Jul 28, 2023 Aditi BagchiContracts
One might be tempted to think that status-based relationships were displaced by contract in modern societies, in the way that Henry Maine suggested over fifty years ago. However, it is now also understood that many specific kinds of relationships are governed by their own rules, even if some elements of voluntary agreement are present. For example, even if one chooses to get married and to marry a particular person, many of the surrounding rules are outside of the parties’ control. Employers and employees choose not only their contractual partners but also most of the critical terms of the employment relationship; but the state imposes a variety of mandatory terms and prohibits others. In these contexts, status-based rules sharply delimit the application of general contract rules. We have paid relatively less attention to how status informs the affirmative application of general contract law, even though there are a variety of doctrines internal to contract that apply “special rules” to tenants, consumers, insured, franchisees, and many others.
In his insightful recent article, Unifying Status and Contract, Kaiponanea Matsumura corrects this neglect. He shows that contract law is responsive to vulnerability in a variety of specific kinds of relationships, and not just ones that we associate with separate bodies of law. He offers illustrative detail on three kinds of relationships: cohabiting partners, contractors and subcontractors, and online service retailers and their customers. He shows how courts balance traditional contract-law considerations of morality and efficiency differently in each context. The most important facts about each relationship that inform special treatment are those that speak to the power balance between the parties. Continue reading "Why Does Status Matter in Contract?"
Jul 27, 2023 Michael GreenJurisprudence
Fernanda Pirie’s Beyond Pluralism: A Descriptive Approach to Non-State Law offers a nuanced and well-reasoned assessment of the movement — among those we can call legal pluralists — to expand the concept of law to include non-state forms of social ordering. Legal pluralists are a heterogenous group and it is dangerous to make any generalizations. But Pirie has certainly identified a theme among some legal pluralists. She has two main arguments, one critical and the other constructive.Her critical argument is that legal pluralists’ conceptual project is largely motivated by normative concerns — “to counter colonialism and its legacies, and to highlight ways in which states disregard the rights and interests of Indigenous people” — that are independent of the descriptive aims of legal theory, which is “simply to clarify what law is and does.” (P. 2.) Her constructive argument is to offer — as an alternative to the pluralists’ normative concept of law — her own descriptive concept, based on a sophisticated method of conceptual analysis. Like the pluralists’ concept, her concept encompasses non-state law, but in a more limited fashion.
Let me start by offering my own (admittedly lengthy) version of the critical argument, before adding her nuance. The law of the United States has done a bad job accommodating Native American forms of social ordering. But broadening the concept of law won’t change American law practices. All it will do is redescribe as law the forms of social ordering that American law practices ignore. Indeed, there is reason to believe that conceptual reform would frustrate the pluralists’ goals. To reform American law — or even to identify it as a set of standards to be ignored or resisted — one needs to focus on what is, in fact, American law. The pluralists’ broader concept of law interferes with that focus. Continue reading "Normative and Descriptive Legal Pluralism"
Jul 26, 2023 Jodi ShortAdministrative Law
Jed H. Shugerman,
Freehold Offices vs. “Despotic Displacement”: Why Article II “Executive Power” Did Not Include Removal (Jul. 25, 2023) available at
SSRN.
Originalist scholars have been hard at work to backfill justifications for the Roberts Court’s pronouncement in Seila Law of an indefeasible presidential power to remove executive branch officers (a prominent recent example is Aditya Bamzai and Saikrishna Bangalore Prakash, The Executive Power of Removal). Unable to point to constitutional language authorizing (much less requiring) presidential removal, purported originalists have located this power provisionally in Article II’s broad grant of “The executive Power” to the President based in part on the argument that executive power, as understood by the Founders, undeniably encompasses the power to remove executive officers at will.
Into this consequential debate wades Jed Shugerman, with Freehold Offices vs. “Despotic Displacement”: Why Article II “Executive Power” Did Not Include Removal. Shugerman persuasively demonstrates that there was no general rule of indefeasible executive removal power prior to and at the founding. Instead, there was a mix of office types—from cabinet-level officers who served at the pleasure of the king, to patronage offices usually held at the pleasure of the patron officer, to offices that were bought and sold as unremovable freehold property (a practice known as venality). The article itself is a tour de force, presenting extensive evidence to support this office hybridity claim and responding point-by-point to existing and anticipated counterarguments by unitary executive theorists. And it is but one installment in a larger project to debunk unitary/originalist claims about the President’s removal power (which also includes The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity and an extensive Appendix to this article cataloguing Unitary Executive Theorists’ misuse of historical sources). This brief post will touch on only a sliver of Shugerman’s intricate argument and extensive evidence, which I encourage all to read for themselves. Continue reading "In Search of the Presidential Removal Power: What Venality (Offices as Property) Tells Us About the Constitutional Dogs that Did Not Bark and the Howling Hounds of Bureaucratic Accountability"
Jul 25, 2023 Beth Tucker Long
Gráinne de Búrca, Rosalind Dixon, & Marcela Prieto Rudolphy, Engendering the Legal Academy, 22 Int’l J. Const. L. __ (forthcoming, 2023).
Here is some more text. Continue reading "test post"
Jul 25, 2023 Natalie RamTechnology Law
In April 2023, the State of Idaho enacted legislation making it a felony to help a minor obtain an abortion (or medication to induce abortion) by “recruiting, harboring, or transporting the pregnant minor within this state.” With more than a third of U.S. states having severely restricted or outright prohibited access to abortion within state borders, Idaho has now turned its attention to making it more difficult for at least some of its citizens to travel out of state to obtain abortion care. The legislation explicitly rejects as a defense that the provider of abortion services is in another state. Abortion care is not the only type of healthcare service that has raised interjurisdictional conflicts. As of April 2023, at least thirteen states have banned some or all gender affirming care for minors. In some states, government officials have attempted to define gender affirming care as child abuse, which would arguably support removing resident children from parental custody even if the contested care were sought beyond the state’s borders.
In response, other states have enacted legislation intended to shield patients, providers, and others who facilitate care that is lawful within that state from being prosecuted or sued elsewhere. Connecticut, which was the first state to enact such protections, largely prohibits healthcare providers from turning over abortion records in out of state legal proceedings without the patient’s explicit consent and bars state judicial authorities from issuing subpoenas related to reproductive services unless there is an equivalent cause of action under Connecticut law.
Yet, as Carly Zubrzycki demonstrates in her new article The Abortion Interoperability Trap, laws like Connecticut’s “miss[] a crucial piece of the puzzle: medical records are widely shared across state lines to facilitate patient care.” As Zubrzycki explains, these new state laws designed to protect reproductive and gender affirming care “are generally limited to preventing providers and other covered parties from directly sharing information in formal proceedings.” They do not prevent, and indeed often explicitly permit, sharing of patient records across state lines for purposes of patient care. The result is that these statutes largely fail to provide the protection they tout. “The reason is simple: in-state providers subject to a safe-haven law will, in the ordinary course of business as their patients seek care in other states, share medical records with out-of-state providers who are not subject to that law and who can therefore easily be asked to hand over the records in litigation.” This gap between what abortion-protective laws promise and what they genuinely offer is what Zubrzycki calls abortion’s “interoperability trap.” In this timely and insightful article, Zubrzycki offers not just a diagnosis but refreshingly practical solutions. Her work is already having a practical and important impact. Continue reading "Generating Genuine Data Protection"
Jul 24, 2023 Nicole Stelle GarnettProperty
Patrick E. Reidy, C.S.C.,
Sacred Easements, __
Va. L. Rev. __ (forthcoming), available at
SSRN (June 26, 2023).
Patrick Reidy’s forthcoming article, Sacred Easements, explores whether private law—and in particular the law of property, rather than public law, might provide a more effective means of protecting indigenous sacred sites. In particular, he explores whether tribes employ the law of servitudes—specifically easements—and common law rules respecting custom to secure access to (and protection) of their sacred sites.
Native Americans’ efforts to employ the traditional public law tools of religious liberty protection—for example, the First Amendment’s Free Exercise Clause, the Religious Freedom Restoration Act, and the Religious Land Use and Institutionalized Persons Act—to shield their sacred sites from desecration usually fall short. Continue reading "Can Property Law Protect Indigenous Sacred Sites?"
