Yearly Archives: 2023
Mar 7, 2023 Sara BroninProperty
In recent years, communities across the United States have accelerated decisions to remove Confederate monuments. Many removals have been successfully completed with the cooperation of the property owner and public authorities. But others, especially in Southern states, have been more challenging. In nine states, “statue statutes” can prevent or inhibit any changes to Confederate monuments, even where the property owner (often, a local government) seeks removal.
Deborah R. Gerhardt’s Law in the Shadows of Confederate Monuments presents an enriching account of the tensions created by state statue statutes, and it offers a new idea to resolve them. Continue reading "The Long Shadow of Statue Statutes"
Mar 5, 2023 Steve GoldLexEnvironmental Law
“It’s obvious” is one of the all-time putdowns of a paper at a workshop. But like many putdowns, this one comes with a ready-made riposte: “If it’s so obvious,” the author might ask, “why hasn’t anyone said it before?”
Dave Owen willingly invites this exchange in the opening of The Negotiable Implementation of Environmental Law. The article begins with a hypothetical factory-siting scenario that to “many practicing environmental lawyers…would sound routine.” (P. 3.) What makes this familiar scenario interesting? The fact that negotiation helps define at least some of the legal obligations imposed by each of numerous implicated facets of environmental law. That fact, Owen persuasively argues, is under-appreciated in environmental law teaching, scholarship–and reform proposals.
In a broad yet specific survey of canonical environmental statutes, Owen describes the central role negotiation plays. He identifies statutory provisions that permit or encourage negotiation (such as CERCLA’s detailed provisions for Superfund remedial action agreements) as well as statutory gaps that might be filled by regulatory edict but leave room for possible negotiation (such as the Endangered Species Act’s requirement that an acceptable habitat conservation plan be included in incidental take permits). But he goes beyond the letter of the law to explain how negotiation affects environmental law in practice. For this, Owen relies heavily on snippets taken from 42 interviews with a range of environmental law practitioners. The interview methodology adds considerable credence to Owen’s description. Because the interviews are so important to his thesis, it is a bit frustrating, though understandable, that they are anonymous and labeled only with generic descriptions of the interviewees’ jobs. Nevertheless, the quotes from the interviews ring true, at least to this former government attorney. Continue reading "Sometimes the Truth Is Staring Us in the Face"
Mar 3, 2023 Amy SalyzynLegal Profession
- Cristie Ford & Quinn Ashkenazy, The Legal Innovation Sandbox, Am. J. Comp. L. (Forthcoming 2023), availible at SSRN.
- David Freeman Engstrom, Lucy Ricca, Graham Ambrose & Maddie Walsh, Legal Innovation After Reform: Evidence from Regulatory Change, Deborah L. Rhode Center for the Legal Profession, Stanford Law School (September 2022).
Legal innovation sandboxes have gained significant traction in North America over the last few years. In 2020, Utah was first to launch its legal regulatory sandbox and, in Canada, law societies in three provinces have subsequently launched sandbox initiatives in relatively quick succession (see, here, here and here). These developments follow earlier use of rule waivers and “innovation spaces” overseas by the Solicitors Regulation Authority (the regulator of solicitors in England and Wales) starting in 2016. All of this has taken place in the backdrop of sandbox use in other industries and professions, most notably in the financial technology (“fintech”) sector.
For readers not familiar with concept of a “sandbox”, the general idea is to offer opportunities for innovative providers to deliver services in a regulated industry in new ways. The sandbox model permits service delivery that would (or might) otherwise breach current rules due to, for example, a non-compliant business structure or means of delivery. Innovators generally participate in a pilot where they have the regulator’s permission to operate under certain specified conditions and with ongoing monitoring. Often, the regulator collects data during such pilots with the aim of informing future regulatory reform. Continue reading "What’s at Play? Learning about the Design and Impact of Legal Innovation Sandboxes"
Mar 2, 2023 Angela FernandezLegal History
Sierra Club v. Morton is a seminal 1972 U.S. Supreme Court case on standing, the essential procedural question of who has a legal right to initiate a lawsuit based on a plaintiff’s alleged injury traceable to a defendant’s unlawful conduct. Daniel Selmi’s new book provides a deep dive into the history and context of this famous case, showing that it was about much more than the majority decision’s denial of the Sierra Club’s standing. And it was not, as some have claimed, launched as a test case to establish standing for environmental groups or the entities themselves, the possibility William O. Douglas went into in his famous dissent dear to the hearts of those interested in the Rights of Nature.
The story begins in the mid-1960s with a decision by the Forest Service to allow the Disney Company to develop a ski resort in the Mineral King area of California’s Sierra Nevada mountains. The Sierra Club was initially supportive of the project. However, they turned against it, as younger members of the Board came to believe they should be protecting wilderness rather than facilitating its use and development, even for skiing, an important out-of-doors activity for Club members. Selmi emphasizes that the Club changed tack at a time when their odds of winning were slim to nil. They (surprisingly) won at trial before a judge who barely registered the standing question (P. 135) and then lost at the Supreme Court. Yet, the war was ultimately won when longstanding transportation issues (for example, expanding an existing road versus building a cog railway) could not be resolved, and political support for the project fell apart. Then, in 1978, Congress decided to make Mineral King part of Sequoia National Park. Continue reading "Environmental Law, Standing, and the History of Sierra Club v. Morton"
Mar 1, 2023 Sean CoyleJurisprudence
Eleanor Curran’s excellent book, Rethinking Rights, surveys the philosophy of legal rights, its history and current importance. The book’s purpose is “to examine the history of rights theory and the effects of that history and how it has been written, on how philosophers think about rights today….” (P. xiii.) Thus the book concerns, not a theory of rights, but a theory of rights theory. The book examines a number of modern theories of rights, in particular the analysis of rights due to WN Hohfeld. This analysis is employed as a means of investigating historical conceptions of rights, especially that of Hobbes; the author claims that the analysis at best only partially captures Hobbes’s sense of “‘right”. Whilst a proof of this would be an interesting philosophical result, the author does not explore until much later modern theories (of Nigel Simmonds and, perhaps, HLA Hart) which limit the Hohfeldian analysis to certain types of private law rights: Hohfeld’s analysis was never intended to capture all types of right, especially not those manifestations of rights-analysis that are premodern or early modern. Similarly, the author examines the two dominant theories of rights at the present day, the will theory and the interest theory, claiming that neither properly encompasses all kind of right. Though interest theorists and (to an extent) will theorists would resist such a claim, it could be argued that both theories represent particular regimentations of ordinary discourse about rights; rather than such theories failing to capture certain types of rights discourse (as the author suggests), there is an alternative explanation: that rights discourse itself is incoherent. Some discussion of such a possibility would have been welcome.
The main lines of argument in the first section of the book owe a debt to Brian Tierney, which is acknowledged in the Preface. And indeed the book’s second sentence repeats a history of rights propagated by Tierney, namely that the period from the late-medieval to early modernity is characterized by a shift from so-called “objective” right to the now more familiar “subjective” right. (Pp. xi, 4.) Much has been written which casts doubt upon this alleged shift, a version of subjective right appearing, for example, in Aquinas’s Summa Theologiae (II-II.57.1c) in the thirteenth century. (I do not personally subscribe to belief in the early modern origins of subjective rights; everything Grotius says of substance about rights is anticipated by Aquinas (Id. at IIII.57.1 ad 1)). The author understands the early modern writers, Hume in particular, to have “devastated” the philosophical justification of earlier doctrines of natural rights, a judgment not shared by a sizeable number of modern philosophers who expose the misunderstandings in Hume’s own premises (see Finnis, Natural Law & Natural Rights at 33-42). But a greater concern is the author’s tendency to regard Ockham, Aquinas, Grotius and Locke as belonging to a single and undifferentiated tradition, and thus for example to treat Locke as offering a “classical” theory of rights. (P. 6.) Such a classical theory is based on natural law, “which exists outside those it commands, and sets out what is morally right (and wrong)….” (P. 9.) This does not correspond to the natural law accounts of the major theorists, including Grotius and Locke, for whom natural law is not “outside” the person but is a “participation of natural law in the rational creature” (Aquinas, Summa Theologica at I-II.93.2c), and is not primarily concerned with right and wrong but with the good and the bad (Id. at III.94.2c). Continue reading "Rights Theories and Their Development"
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"
