Monthly Archives: May 2024
May 31, 2024 William SmileyLegal History
Refugees, it seems, are scary. The movement of people fleeing violence and oppression attracts sympathy, but increasingly also fear. We hear talk of “carnage” and “chaos” at the US border as Central Americans flee political violence; the EU agrees to limit asylum-seekers; the UK plans to deport all asylum-seekers to Rwanda; in last year’s Turkish election, both President Erdoğan and his challenger promised to send home millions of Syrian refugees. Amidst these challenges to the global refugee regime, many turn to its founding documents, dating to the aftermath of World War II. Scholars of humanitarianism suggest the system’s roots lie a quarter-century earlier, in American and Western European responses to the collapse of the Romanov, Habsburg, and Ottoman Empires. In either case, the emergence of a legal regime for managing refugees is seen as driven by western, and particularly Christian, sympathies and solidarities. Vladimir Hamed-Troyansky’s new book challenges that view, arguing that as early as the 1850s, the Ottoman Empire—a state ruled by Muslims and often seen as outside the European world—“created its own nonwestern and nonsecular system of categorizing, sheltering, and resettling refugees.” (P. 3.)
Hamed-Troyansky makes this argument as part of a larger study of the immense migration (over a million people) of North Caucasian Muslims from the Russian Empire to the Ottoman Empire in the late nineteenth century. As the Russians consolidated their control over the Caucasus Mountains, they drove out many of the Muslims who lived there. In particular, the Circassians/Adyghe were extirpated so thoroughly that some have termed it a genocide. Most of these refugees fled to the Ottoman Empire, which responded by creating a legal and bureaucratic system to aid them and resettle them on its lands, from the Balkans to Jordan. Over the following decades, as the Ottoman Empire contracted, the North Caucasians were joined by many more Muslim refugees who fled (or were expelled from) the newly independent states of the Balkans. To tell this story, Hamed-Troyansky relies on a breathtaking diversity and depth of sources: twenty-three archives across ten countries, private papers and letters, and even interviews. He tells stories of imperial politics, local bureaucratic management, urban socioeconomic changes, and family microhistories. Continue reading "Between Asylum and Atrocity"
May 30, 2024 Thomas BustamanteJurisprudence
Some influential philosophers believe that law does not give us any “real” reasons for action. Like games, fashion, and etiquette–we are told–law guides our behavior only in a weak and uninteresting way. It provides “formal,” rather than “robust” reasons for action. Legal philosophers should, therefore, find a better use of their time, by turning their attention to more relevant subjects, like morality and metaethics. This claim is not just a second-order assertion to entertain academics in philosophy seminars, but a consequential practical point. If you accept it, you may think that law possesses neither “practical” nor or “influential” authority, but only, if any, a sort of “theoretical” authority: law sometimes gives us reasons to believe in “the truth (or falsity) of deontic propositions, but it does not give reasons for action.” The only role law can play is an epistemic role: law can point at some action when we do not know exactly what to do. Even in that case, however, it only gives us reasons when we do not feel the need to deliberate carefully or think too hard. The law is given and we think fast when we think about law. The law might help us “do the thinking” when we are lazy or the matter at stake is not serious enough, but it cannot alter the actual balance of reasons. If you face a true ethical challenge or a serious practical dilemma, you’d better turn to morality instead of law.
Some nice books on the rule of law recently resisted these thoughts. It has been argued, for instance, that this mindset does not “take the law seriously” because it neglects a fundamental interpretive dimension of law, and that it fails because it disregards the law’s ethical role in our communal lives. These and other intriguing philosophical works grew under the influence of Jeremy Waldron’s contributions to the rule of law, which are spread over a sea of papers that only a very diligent researcher could recollect. I am happy that he has now published some of these works in a coherent and well-organized collection. Waldron’s scholarship on the rule of law displays even more subtly and depth when these works are read together. Continue reading "Legal Judgment as a Serious Matter"
May 29, 2024 Pamela SamuelsonIntellectual Property Law
Paul R. Gugliuzza & Mark A. Lemley, Myths and Reality of Patent Law at the Supreme Court, 104 B.U. L. Rev. 891 (2024).
Gugliuzza and Lemley have produced an important contribution to the literature about the Supreme Court’s engagement with patent law issues over a forty-year period since 1982. That was the year that the Court of Appeals for the Federal Circuit (CAFC) began having exclusive appellate court jurisdiction over patent cases. Their article considers whether certain tenets of the conventional wisdom about the Supreme Court’s patent cases are myths or reality.
Does the Court distrust the CAFC? Has the Court’s rather large volume of patent cases (62 since 1982) had major impacts on patent law? Does the Office of the Solicitor General (OSG) always get its way in patent cases? Conventional wisdom would answer all three questions in the affirmative. Gugliuzza and Lemley conclude that the conventional wisdom is correct in some respects, but not so much in other respects. Continue reading "Reviewing Four Decades of Supreme Court Patent Decisions"
May 28, 2024 Kevin CopeInternational & Comparative Law
The recent special issue of International Journal of Migration and Border Studies, “Comparative Migration Law: Methods, Debates and New Frontiers,” features a diverse set of perspectives on the study of migration law. This jot specifically covers Daniel Ghezelbash’s excellent contribution to the issue, Legal transfers of migration law: the case for an interdisciplinary approach.
The article argues for a more expansive dialogue between legal scholarship and other disciplines to fully capture the intricacies of contemporary migration policy transfers. As Ghezelbash notes, legal transfers (also known as diffusion, transplants, borrowing, migration, or translation, among other things) involve the movement of a law between countries. The field’s pioneer was Alan Watson; in 1974, he controversially described “legal borrowing” as perhaps the most significant source of legal change, especially in the Western world. Whatever its validity as to other fields, Ghezelbash agrees that migration is a particularly fertile field for legal transfers, for two main reasons: (1) the interconnectedness of migration laws (in that, like trade in goods and services, a migration act necessarily implicates at least two, and usually many more, countries) and (2) the shared constraints faced by states in designing migration laws under international law. Continue reading "Borrowing Immigration Law"
May 27, 2024 Rebecca ZietlowConstitutional Law
Jill Wieber Lens, Fetal Life Hypocrisies (unpublished draft 2024).
The United States Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, rejecting a constitutional right to choose an abortion, has laid bare the landscape of the inequality in reproductive rights and health care in this country. In Fetal Life Hypocrises, Jill Wieber Lens questions the foundational justification for state bans on abortions, that banning abortions will promote fetal life. Lens argues that both the antiabortion and proabortion movements have failed to recognize the millions of fetal deaths that are not caused by abortions. State bans on abortion are unlikely to significantly reduce the number of abortions nationally. However, they will likely increase fetal deaths, the legal term for miscarriages and stillbirths, pregnancy losses before and after 20 weeks, respectively. Moreover, the women who are most likely to lose their pregnancies are those who had the least protection under the previous Roe/ Casey regime—people of color and poor people of all races. The Dobbs ruling forces advocates for reproductive rights to re-theorize constitutional claims for rights and provides an opportunity for a widespread campaign for reproductive justice.
As reproductive justice advocates have been arguing for years, even before Dobbs millions of people lacked control over their reproductive lives. The individual liberty based right to choose an abortion identified by the Court in Roe was woefully inadequate to achieving reproductive rights for many people, especially women of color and low-income women of all races. Most notably, the Supreme Court held that neither the states nor the federal government were obligated to pay for abortion services, so that people who are dependent on the state for their health care lacked access to abortions well before Dobbs. Advocates in the reproductive justice movement point out that throughout our history, people of color have lacked not only the right to choose not to have a child, but also the right to choose to have a child, and to raise that child and parent her with dignity. Continue reading "Questioning the foundation of Dobbs"
May 24, 2024 Carl ColemanHealth Law
Rebecca Haw Allensworth & Cathal T. Gallagher,
Doctors Playing Lawyers, Vand. L. Rsch. Paper No. 23-42, available at
SSRN (Aug. 9, 2023).
In Doctors Playing Lawyers, Rebecca Haw Allensworth and Cathal T. Gallagher argue that professional disciplinary systems are “in a state of crisis” (P. 7.) Clear evidence of misconduct is often “ignored or tolerated.” (P. 3.) Despite their ostensible mission to protect the public from incompetent and unethical behavior, boards “systematically fail to identify and stop dangerous professional practice.” (P. 7.)
A key reason for this problem, they argue, is that disciplinary boards are made up primarily of members of the regulated professions. This results in two problems. First, by nature, “self-disciplinarians” are likely to over-identify with the accused (P. 7). Second, except in the system of lawyer discipline, professionals serving on disciplinary boards typically lack any expertise or training in investigation or adjudication. Instead, they are “peers who take a few days out of their busy professional lives to moonlight as self-regulators,” usually with “very little in the way of standards or law to apply, other than to do discipline in the name of the ‘health, safety and welfare’ of the people of their state.” (P. 5.) What results is a haphazard process of “casual, collegial decisions,” rather than a rigorous application of the rules to the facts of the case. (P. 7.) It is therefore not surprising that disciplinary boards exhibit a “high level of variability and inconsistency” in the way they react to allegations misconduct, even within the same profession in the same state. (P. 38.) Continue reading "A Comparative Law Analysis of Professional Disciplinary Systems: What Can Tennessee Learn from the U.K.?"
May 23, 2024 Philomila TsoukalaFamily Law
Since Dobbs was decided, abortion rights advocates have been nervously looking around the legal landscape wondering what doctrinal domino is likely to fall next. At this very charged moment, Professors Dov Fox and Jill Wieber Lens bravely chose to write about the downsides of legally underestimating the ravages of reproductive loss post-conception. In their recent article, Valuing Reproductive Loss, they offer the first empirical study of jury awards in tort cases on reproductive loss, which they define as ranging from mismanaged embryos in the IVF context all the way to mismanaged pregnancies, including early miscarriages and late term stillbirths. The authors suggest that the legal system is not treating prenatal life in a coherent manner and hypothesize that racial and class biases may have a lot to do with the resulting awards in the cases they analyze. They also offer a normative framework for valuing such losses in the tort context, one that they hope will promote reproductive justice, but also bring doctrinal coherence to the treatment of reproductive loss.
Valuing Reproductive Loss starts with a striking example of seeming doctrinal incoherence. A couple in Texas lose their son, whom they had already named “Adam” in utero, at forty weeks of gestation because of a negligent delay in proper birth care. Texas law deems Adam to be an “unborn child,” but his parents cannot recover for his wrongful death. Texas law does not allow medical malpractice claims when the malpractice causes the death of an unborn child. Had the doctor in question been accused of performing an abortion even at five weeks of gestation, the doctor involved would have faced serious criminal consequences, ranging from a hefty monetary fine to significant time in prison. However, when it is time for the parents to claim compensation for the loss of a full-term baby via medical malpractice, the state blocks them from doing so, at least if what they want is compensation for the fetus as a separate individual. The gestating person can recover compensation for their own bodily injury, as though the lost fetus were another limb, despite the law’s panegyric characterization of the fetus as an “unborn child.” Taking it one step further, the authors highlight that if the loss of the embryo had happened in vitro, via the negligent destruction of someone’s embryos because of a clinic’s freezer malfunction, the would-be parents would only be able to seek compensation for their loss through the category of destruction to personal property. Similar inconsistencies can be found in states that allow abortion, where fetuses are also sometimes recognized as persons in the context of a wrongful death suit, while at other times they are merely described as body parts. Professors Fox and Lens thus show that reproductive loss is ridden with inconsistency, with a fetus being a lost limb in one case and a deceased person in the next and cases varying within but also between states. Continue reading "How much is the lost chance to reproduce worth?"
May 22, 2024 Michael YuTrusts & Estates
Goldburn Maynard & David Gamage,
Wage Enslavement: How the Tax System Holds Back Historically Disadvantaged Groups of Americans, 110
KY. L.J. 665 (2021-2022), available at
SSRN (Mar. 28, 2024).
In their article, Professors Goldburn Maynard and David Gamage call for reform of the U.S. tax system, specifically identifying the phenomenon of “wage enslavement” and then arguing that it is a “central injustice of our tax system.” (P. 691.) Professors Maynard and Gamage argue that the problem of wage enslavement should be recognized as central to the pursuit of tax justice and to the “deeply connected” pursuit of racial justice, and they further contend that only by addressing wage enslavement “can we effectively promote a more just future of shared prosperity for all Americans.” (P. 692.)
What is “wage enslavement”? The term, as Professors Maynard and Gamage use it, refers to the means whereby the existing tax system (“‘by heavily taxing wage and salary incomes, and only lightly taxing the returns to owning wealth’”) inhibits historically disadvantaged groups from building wealth or from catching up with historically more privileged groups. Such inhibiting effects then trap many members of historically disadvantaged groups into a cycle of dependence on tax-disfavored wage and salary incomes because of the difficulty they encounter in earning enough wages to cover all living expenses and, further, in starting to build wealth. (Pp. 666-67.) The Professors clarify, “Of course, by calling this phenomenon “wage enslavement,” we do not mean to imply that this is an injustice at anywhere near the level of true, literal slavery.” (P. 667.) Continue reading "Towards Tax and Racial and Equal Justice"
May 21, 2024 Maneesha DeckhaEquality
Equality and patent law may seem to make strange bedfellows. Convincing analyses exist though of how legal definitions related to science and innovation and patents themselves have fostered domestic inequalities as well as global health disparities. Concerns about the intra-human inequities that patent law produces are pressing ones. Still, in remaining anthropocentrically-bound by presuming that only humans can be inventors, these concerns miss the full scope of patent law’s inequality quotient. Laura A. Foster’s recent article Plants as Inventors: Interrogating Human Exceptionalism within Narratives of Law and Vegetal Life refreshingly takes up the inventive capacity of plants themselves as knowledge producers.
Foster seeks to correct her own human-focused examination of patent law’s role in elevating Western science at the expense of Indigenous knowledges in her 2017 book Reinventing Hoodia: Peoples, Plants and Patents in South Africa. With her 2023 article Plants as Inventors, Foster brings attention to plants, and patent law’s role in subordinating them, through telling stories about plants that pivot on the “binary logic of human exceptionalism” (P. 228). The article provides an engaging and instructive analysis inspired by what Foster terms “a vegetal feminist approach” (P. 229). Continue reading "Planting Equality"
May 20, 2024 Samuel ShawCriminal Law
Judges holding bail hearings in urban and suburban courthouses dispense “stranger justice.” All they know of the defendant before them is in the court file. For rural judges, it’s different. Enmeshed in a “density of acquaintanceships,” they’re likely to “have personal information external to the court record about many defendants … .” (P. 187). So far, so good: more information should lead to better-informed bail determinations. But the other side of the coin is that rural defendants have access to fewer bail administration services, like substance use counseling, monitoring, and bail bonding. More knowledge and fewer resources means that a rural judge might know exactly what a defendant needs to ensure their safe return to the community and subsequent appearance at trial – and yet be unable to provide it.
That is the core contention of Jordan Gross’s Pre-Trial Justice in Out-of-the-Way Places – Including Rural Communities in the Bail Reform Conversation. The article interrogates whether national frameworks for bail reform fit rural Montana communities. But quietly, it’s more ambitious than that. The article assesses the proposals of the Uniform Law Commission’s Pretrial Release and Detention Act (UPRDA) as applied to rural Montana. In the process, it reveals the frailty of “Uniform” anything in the context of bail reform. It also models a better way forward: courthouse-by-courthouse solutions sensitive to local conditions. Bail reform, we learn, is not generalizable. Gross’s approach holds promise for jurisdictions both urban and rural – but it will be resource-intensive. Continue reading "Localizing Bail Reform: Rural Montana and Beyond"
