Yearly Archives: 2023
Nov 8, 2023 Christina S. HoHealth Law
Wendy Parmet has a new book out, called Constitutional Contagion: COVID, the Courts, and Public Health. It is a long-awaited sequel of sorts to one of her earlier books, Populations, Public Health and the Law (2009). I mention this because, while COVID is the occasion for her argument, i.e., the circumstance that brings her point to the sharpest focus, the account is actually one she has been building for a long time, and its implications transcend the current crisis. At the most general level, Parmet argues for the health of the polity as not just one of but perhaps even the most central value that our laws exist to serve. In this newest volume, she surveys our Constitutional jurisprudence, re-centering our understanding of America’s foundational law in relation to its most fundamental material stakes.
Parmet’s argument proceeds with the sound, measured consideration that we know and trust from her body of work. Thus, she is perfectly within rights to distinguish her position from my maximalist gloss. But as an intemperate enthusiast of the Parmet project, I view her work as teeing up the claim that population health is part of the inner morality of law. Just as Lon Fuller found reciprocity, human agency, and a certain formal integrity to inhere in law, Parmet finds an additional substantive morality at the ground level of law’s project. As she says in her first book, “[P]ublic health is not simply a norm, but also a legal norm that should be embraced by and incorporated into the legal system.” (P. 52.) Continue reading "Is the Health of the People Part of the Inner Morality of Law?"
Nov 8, 2023 Aníbal Rosario-LebrónFamily Law
Words are, perhaps, the most powerful of human creations. Through words, we see and unsee. We celebrate and condemn. We build and destroy. And through words, we create and exert the power of the law. Lisa Washington’s Survived & Coerced: Epistemic Injustice in the Family Regulation System reminds us of this potent symbiotic relationship between words and the law.
Drawing from her experience as a public defender in New York City, Washington expounds in her article how the family regulation system (a.k.a. child welfare system) procures, fosters, and engages in epistemic injustice to reproduce and legitimize its purported goal of child safety whilst it serves as an arm of the carceral state to further marginalize women, the poor, and people of color. Epistemic injustice, coined in political philosophy by Miranda Fricker, attempts to depict the connection between power, oppression, and prejudice in the realms of knowledge production and reproduction. Fricker defines the concept as the unfair treatment of a person or a group in their capacity to know or describe their experiences. Such unfair treatment harms people in their capacity as knowers as they are subjugated by societal power structures expressed in stereotypical assumptions. The concept of epistemic injustice, thus, captures the long-discussed disparity by jurists, activists, and feminists such as Sojourner Truth that some voices, forms of knowledge, stories, and experiences are more audible, more important, easily believed, and heavily weighed than others. Continue reading "Law’s Power in Naming & Silencing"
Nov 7, 2023 Mark WeberEquality
People use disability metaphors all the time, from complaining about a “disabled bus” to remarking on the barrier to filing a claim due to a “legal disability.” In Disability as Metaphor in American Law, Doron Dorfman disapproves of the use of disability metaphors in general, and specifically challenges what he calls “disability frame advocacy.” Disability frame advocacy is the metaphorical use of the disability discrimination concept to argue that society should address disadvantages not associated with physical or mental impairment, but instead associated with poverty or other experiences or characteristics. Dorfman defines this term as “when scholars and advocates use disability rights frameworks and disability as [a] metaphor to advocate for resources, recognition, and redress for members of oppressed groups who do not live with disabilities.” (P. 1757.)
Examples of disability frame advocacy include invoking disability as a rhetorical device to argue for accommodations to make up for disadvantages imposed by structural racial inequality or discriminatory attitudes toward transgender persons, persons who use opioids, and people who are unhoused. (Pp. 1783-84.) These forms of discrimination may be “disabilities” in a metaphorical sense, but the disadvantages imposed differ from disadvantages that stem from social conditions relating to physical or mental impairment. Dorfman acknowledges that people who are discriminated against on the basis of race, who are impoverished, or who face other disadvantages in society may have claims for positive rights to support or accommodations. He nevertheless opposes using disability frame advocacy in this context to argue for the accommodations and other remedies. He contends that the rhetorical use of disability outside the disability context obscures the unique disadvantages imposed on people who have physical or mental impairments. Continue reading "Abandoning Metaphors and Reclaiming Impairment"
Nov 6, 2023 SpearItCriminal Law
When you think about why people are convicted of a crime, it seems absurd to say, “because there are bad people” or “because people do bad things.” Such responses, by themselves, would be an over-simplification that overlooks key contributors. For example, some might commit crimes due to the inability to feed oneself or one’s family. It is also true that some people confess to crimes they didn’t commit, often just to get out of the criminal system. Some people did nothing wrong at all and were wrongfully convicted. Similarly, mass incarceration defies any singular explanation.
In Mass Incarceration Nation, former prosecutor and law professor, Jeffrey Bellin, seeks to describe the primary factors that have brought us to this place in history. In the last few decades, the United States has become a world leader in incarceration, such that prison systems in places like Texas and California rank among the largest systems in the world. While explanations about mass incarceration proliferate, Bellin identifies multiple contributions through a more nuanced approach to understanding the problem. While many might consider race and class as the driving factors, as this work shows, the picture is more complicated. Continue reading "America’s Punishment Addiction Explained"
Nov 3, 2023 Jasminka KalajdzicCourts Law
Howard M. Erichson & Ethan J. Leib,
Class Action Settlements as Contracts?, 102
N.C. L. Rev. __ (forthcoming 2023), available on
SSRN.
For the traditional civil proceduralist and legal ethicist, much of class action law is fitting a square peg in a round hole. Few of the principles or rules developed in the context of bilateral relationships apply neatly in representative litigation. For example, rules of conduct are ill-suited to the sui generis relationship class attorneys enjoy with the lead plaintiff and with the class. Cy près remedies common in class settlements provide for relief – payment to a non-party – that the underlying substantive law does not authorize. The presence of absent class members complicates the doctrine of standing, while the opt-out system disrupts expectations of basic due process rights. Add to this list the class action settlement. Its unique nature has to date been undertheorized and underexplored, although the features that distinguish class actions from their two-party counterparts are more pronounced at settlement: a deal binds absent class members who had no power to instruct counsel and no say in the deal’s terms. In these circumstances, is a settlement agreement a “contract” and should disputes arising from the settlement be resolved by resort to strict contract law principles?
Howard Erichson and Ethan Leib challenge the prevailing paradigm of the class action settlement as a contract between parties. Their thesis is that a class settlement agreement is a particular sort of contract and a unique kind of court judgment; it requires its own interpretive framework, one that borrows from the law of contracts and the law of judgments. Their distinctive approach respects the role of the certifying court as protector of class members’ interests in a way that blind adherence to settlement-as-contract ignores. Continue reading "Breaching the Contract Paradigm"
Nov 2, 2023 Omri Ben-ShaharContracts
David A. Hoffman and Yonathan A. Arbel,
Generative Interpretation, 99
N.Y.U L. Rev. __ (forthcoming, 2024); U of Penn L. Sch., Pub. L. Rsch. Paper, available at
SSRN (Aug. 1, 2023).
The plain meaning rule is out of favor with contracts academia. There is so little to say about it, nothing to theorize, and even less to test students about. Plain meaning? It’s such an unintelligent concept. Scriptures, poems, literature, love letters—they all have subtle meanings that can be imagined and read between the lines. Why not contracts?
Luckily, California rescued the contract world from that slight. Its courts rejected the plain meaning rule! We too now have a job to do: speculate about the meaning of contracts. California and Foucault told us that there is no such thing as plain meaning of words, and so the meaning of the contract must be teased out not merely from the text but also from the context of the agreement. The so-called contextualist interpretation approach liberated our profession to develop surgical interpretation tools that advance various conceptions of what-the-parties-must-have-truly-intended. Precontractual conversations, relational norms, the parties’ interests and expectations, what not. So much richness beneath the text. Aside from a few dissenters, the contracts professoriate either ignores or deplores the plain meaning rule.
There is only one problem with this state of the art: it is divorced from the state of the law. American courts, by and large, regularly apply the plain meaning rule to interpret contracts. Words, courts strangely think, have meanings, and when common sense is not sufficient to discover that meaning dictionaries and treatises can help. Continue reading "Towards the End of Normative Interpretation of Contracts"
Nov 1, 2023 Thomas J. McSweeneyLegal History
Lorren Eldridge’s Law and the Medieval Village Community is a call to historians of English law to return to the study of local, community-generated customary law, a type of law that governed the lives of many of England’s people, but that has been pushed to the periphery in favor of the study of the common law. Eldridge presents the medieval village as a space where customary law was generated, a customary law that, while it was informed by the common law made in the king’s courts, differed from it in important respects.
Law and the Medieval Village Community is as much about the historiography of the village community as it is about its history, and Eldridge has a knack for making historical debate exciting and relevant. She tells the story of how scholars of English law, who once saw the village community as central to the history of English law (and indeed to contemporary legal theory), turned away from the village in the early twentieth century in favor of the records of the central royal courts. This shift proved enduring and has yielded a distorted picture of English law, generating a historiography that focuses on elite spaces and elite litigation to the exclusion of the law that was used and created in local communities. Continue reading "Looking Beyond the Common Law"
Oct 31, 2023 Deepa Das AcevedoWork Law
Employee Retirement Income Security Act (ERISA) attorneys and scholars are an enthusiastic bunch. They love (love) talking all things benefits, whether this means arcane legislative history or the minutiae of healthcare plans. ERISA folk especially love their statute, even though almost everyone else considers it too dry and far too complex—and even though they themselves often affectionately poke at it with names like the Every Ridiculous Idea Since Adam law. (This was my own ERISA professor’s personal favorite.)
Occasionally, as with Brendan Maher’s recent article, Pro-Choice Plans, the reason for all this enthusiasm becomes eye-wateringly obvious. ERISA affects aspects of life that everyone cares about deeply: what happens when we get sick, and what happens when we get old. As Maher points out, this means it also—if indirectly—affects abortion access. Continue reading "Know Your… Benefits"
Oct 30, 2023 Robert GordonLegal Profession
Michael Ariens has long been one of the best informed and most acute observers of the legal profession. His ambitious new book surveys the ethics of American lawyers from the Revolution to the present day. More precisely, it is a history of how lawyers talked about ethics in the nineteenth century, and of how lawyers and their organized associations, especially the American Bar Association, have tried to regulate ethics in the twentieth and twenty-first centuries. On these topics Ariens is extremely well-informed, and his footnotes are a comprehensive treasure trove of primary materials. He seems to have found almost every speech, tract, report, or regulation uttered by lawyers on the ethical principles that ought to define their professional identity, and on how lawyers actually live up, or fail to live up, to those principles.
Lawyers have always claimed to follow professional principles superior to their own commercial self-interest. In the early 19th century, Ariens says, American lawyers asserted that gentlemanly ideals of “honor” kept them from abusing clients or the public interest. Gradually talk of honor faded out, to be replaced with the more Protestant notion of individual “conscience” as the restraint on self-serving conduct. Lawyers deflected criticism onto scapegoats, blaming abuses such as meritless lawsuits or forensic trickery or defrauding clients on “pettifoggers”. Writers on legal ethics like David Hoffmann and George Sharswood advised lawyers to limit their zeal to avoid assisting injustice, deploring Lord Brougham’s famous advice that a lawyer must further a client’s interest to the utmost, heedless of harms to opposing interests or third parties. But, says Ariens, such strictures “did not match reality.” (P. 63). Lawyers argued they could be disbarred for bad behavior, but this rarely happened; a lawyer disbarred by one court could appear before another; and “neither the judiciary nor practicing lawyers showed much interest in disbarring venal lawyers to protect either the public or the profession’s claim to integrity during this time.” (P. 29). The public might be made uneasy by seeing famous advocates like Rufus Choate use courtroom wizardry to secure the acquittals of robbers and murderers, but lawyers assured their critics that such results were the unavoidable costs of assuring due process for everyone. Continue reading "A New History of Legal Ethics"
Oct 27, 2023 Anne Joseph O'ConnellAdministrative Law
Nicholas R. Bednar & David E. Lewis,
Presidential Investment in the Administrative State, Am. Pol. Sci. Rev., available at
Cambridge University Press (Mar. 13, 2023).
Presidents are quite popular in administrative law these days, from Elena Kagan’s classic article, Presidential Administration, to the Supreme Court’s fixation on presidential control in its growing Appointments Clause and removal docket. As legal scholars dissect and debate the doctrinal and normative implications of presidential attention in agency decision making, we could benefit from knowing more about how that involvement actually plays out.
In Presidential Investment in the Administrative State, Nicholas Bednar and David Lewis provide critical empirical lessons for how Presidents invest strategically (or not) in agency capacity, which encompasses “the ability of an agency to perform the tasks delegated to it.” They show that Presidents are not simply public administration savants—trying only “to ensure effective policy implementation and avoid failure.” And they demonstrate that Presidents are not pure partisans—“work[ing] to increase capacity in agencies implementing policies the president likes and decrease capacity in agencies implementing policies the president opposes.” The lessons are messier. Continue reading "Agency Capacity"
