Monthly Archives: June 2024
Jun 28, 2024 Nora Freeman EngstromLegal Profession
In Ethics, Lawyering, and Regulation in a Time of Great Change: Field Notes from the (R)evolution, Lucian Pera depicts a profession caught in a storm of transformation, both driven by—and driving—the “twin factors” of economic and regulatory change. (P. 802.) In the midst of this rapidly shifting environment, and as some states (most notably, Utah and Arizona) relax their legal practice regulations while most others cling to the traditional rules, the two modes of regulation will invariably collide. In a timely and accessible piece, Pera maps this collision, unearths under-explored complexities, and offers tentative thoughts on a possible path forward.
At the center of Pera’s contribution is the alternative business structure (ABS), variously called nonlawyer ownership (NLO), corporate law practice, or multidisciplinary practice (MDP). Whatever term or abbreviation is used to describe it, in this arrangement, a nonlawyer-owned or nonlawyer-controlled entity offers legal services to consumers or customers. This form of practice flourished in the 1920s in the United States (until it was snuffed out by the bar), and it has been around for a while in the U.K. and Australia. But it is viewed skeptically (to put it mildly) in most states. Continue reading "When Worlds Collide: Mapping the Collision Between Lawyer Regulatory Regimes"
Jun 27, 2024 Reuel SchillerLegal History
Here’s a narrative jewel from Margot Canaday’s stunning new book Queer Career: Sexuality and Work in Modern America: Canaday is interviewing a queer woman who drove a cab in Buffalo during the years following World War II. Apparently, taxi driving was a common profession for lesbians at the time. In fact, the cabbie believed that half the drivers in the company were queer. “The owner liked to hire lesbians—it was a transient job, but lesbians tended to stay. ‘Got any friends?’ he would ask. ‘Send them in.’” It was the kind of job, the driver told Canaday, that allowed her to live life the way she wanted. The informal nature of the work gave her the flexibility to socialize in gay spaces and to present herself authentically without fear of reprisal at work. During her years as a driver “she wore pants, a shirt, and a binder to work.” (P. 83.)
If you’re anything like me—a reader familiar with the standard narrative of the development of postwar liberalism—this story is disorienting. Driving a cab in postwar Buffalo was a congenial profession for lesbians? So congenial that half the employees were queer? So congenial that the boss actively tried to recruit lesbian drivers? So congenial that drivers felt comfortable being out at work? Wasn’t this the era of the Lavender Scare, when rampant homophobia and government persecution drove queer Americans out of the workforce and deep into the closet? This story is just one of many convincing, counterintuitive pieces of evidence that substantiate Canaday’s central claim: When you look at the world of “queer careers” through the lens of the Lavender Scare, you don’t see the employment experiences of most gay and lesbian workers. In fact, when you closely examine these experiences, as Canaday has done with an unprecedented degree of detail, you see a very different story. You see that for many gay and lesbian workers, the workplace became less hospitable as the twentieth century wore on. Continue reading "Liberation Without Law: Queer Workers and the Limits of Legal Liberalism"
Jun 26, 2024 Bill WatsonJurisprudence
Francisco Javier Urbina,
Reasons for Interpretation (Feb. 9, 2024), available at
SSRN.
Debates over legal interpretation—like those between originalists and living constitutionalists or between textualists and purposivists—are intractable and long-running, with no end in sight. A recent and welcome development in these debates has been increased attention to the background question of how to choose an interpretive method. What kinds of facts or reasons count in favor of any interpretive method? Can a better understanding of the nature of law, language, or interpretation answer which interpretive method is correct or best? Can facts about a community’s law or legal practices do so? Or must we look instead to normative reasons, i.e., to moral, political, or other reasons that favor acting in some way?
Francisco Urbina’s article, Reasons for Interpretation adds to this growing literature on how to choose an interpretive method. His answer is simple: only normative reasons can ultimately justify an interpretive method. Defending an interpretive method therefore requires reference to things like which method best satisfies deontic constraints, advances democracy or the rule of law, or promotes other values. On the flip side, one cannot defend an interpretive method simply by appealing to facts about the nature of law, language, or interpretation, nor can one defend such a method simply by appealing to facts about our law or legal practices. These facts are relevant to interpretive choices only if and insofar as normative reasons make them so. Continue reading "How to Choose an Interpretive Method"
Jun 25, 2024 Verity WinshipInternational & Comparative Law
The US produces technology and the EU produces rules. This “division of labor” was encapsulated in this exchange: On the acquisition of then-Twitter, Elon Musk tweeted “the bird is freed.” An EU commissioner almost immediately responded (also on Twitter) that “In Europe, the bird will fly by our rules.” Anu Bradford’s article, Europe’s Digital Constitution, opens with this collision between US tech entrepreneurs and EU regulators. The specific example is in service of a much grander vision. Bradford argues that European tech regulation can be understood as a “constitution” that expresses a normative commitment to “fundamental rights,” democracy, and “fairness and distribution” (P. 10.)
Bradford’s super-power as a scholar is the ability to take something that has been recognized and analyzed in piecemeal form, and then to enlarge the framework and fundamentally shift how we talk about the area. Her foundational earlier work provided a way to articulate an unformed instinct and collection of examples into the “Brussels Effect,” which identified the global reach of EU law (elaborated in her 2015 article and 2020 book). Continue reading "Techno-Rights"
Jun 24, 2024 Nadia SawickiHealth Law
Dov Fox and Jill Wieber Lens’ 2023 prescient article, Valuing Reproductive Loss, could not have arrived at a more important time. In February 2024, the Alabama Supreme Court held that a state law permitting parents to recover for the wrongful death of a minor child also protects cryopreserved in vitro embryos. The case sparked vigorous nationwide debate about its implications for access to medical services like assisted reproductive technology and abortion. Broader debates like these are absolutely essential, but according to Fox and Lens, they risk crowding out the core question posed in the Alabama lawsuit and many others: What legal remedies should be available to intended parents when a defendant’s wrongful conduct results in the loss of their desired child before birth? Fox and Lens tackle this challenging issue head-on, and directly counter the narrative that rights to abortion will inevitably be jeopardized by legal recognition of reproductive loss.
This article reports on the results of the authors’ empirical study of jury verdicts in cases brought by intended parents who have suffered losses as a result of mishandled embryos, mismanaged pregnancies, or general negligence (for example, a car accident that causes a miscarriage). They find “wildly erratic outcomes” that do not correlate with the factors one might think are most likely to impact damages awards–such as the plaintiff’s age at the time of loss, the gestational age of the fetus, the type of legal action brought, or the nature of the defendant’s wrongdoing. Instead, they suggest that the outcomes in these reproductive loss cases may be driven by jurors’ unconscious biases about race and class, about who qualifies as a “deserving parent,” and about whether a child is truly “wanted.” To counter these biases and the resulting disparities in damage awards, the authors present a novel and more principled framework for valuing reproductive loss in civil litigation. Continue reading "A Principled Approach to Damages in Pregnancy Loss and Beyond"
Jun 21, 2024 Albertina AntogniniFamily Law
This Fall in my Family Law class, a student emailed me a Saturday Night Live clip after our discussion of Dobbs v. Jackson Women’s Health Organization. It is a Weekend Update skit, where Kate MacKinnon plays Justice Amy Coney Barrett, who is being interviewed by the anchor, Colin Jost. Throughout the interview, MacKinnon—as Justice Barrett—keeps repeating various iterations of “Do the nine. Just do the nine and pop it.” The “nine” refers to the nine months (or 40 weeks) of gestation; the “pop it” refers to the act of giving birth. The reason the clip is funny, in a tragic sort of way, and the reason my student shared it with me, is because MacKinnon’s breezy directives perfectly capture Dobbs’s complete failure to acknowledge any of the physical facts of pregnancy and birth. Later that semester, during the section of our course that addresses how the law accommodates pregnancy, another student sent me a TV advertisement made by Frida, a company that sells products for new parents. The ad shows a woman postpartum, waking up in the middle of the night to pee. It is intimate and matter-of-fact. Anyone who has given birth, or has been with someone who has given birth, will immediately recognize the hospital-issued mesh underwear, the extra-long cotton pads, the peri bottle filled with lukewarm water. The ad made headlines for being rejected for a spot during the 2020 Oscars ceremony. In an email, the Academy of Motion Picture Arts and Sciences suggested that Frida offer “a kinder, more gentle portrayal of postpartum.” The student sent me the ad to follow up on our class discussion about how the experience of birth, and what immediately follows, is so rarely depicted.
Gestation, pregnancy, and birth, along with the bodies that house these and other life processes, are mostly missing from the laws that regulate them. This is why Kate Clancy’s book, Period: The Real Story of Menstruation, is such vital reading. Put simply, “[b]odies matter.” (P. 182.) They matter in myriad ways that are neither obvious nor straightforward. The principal lesson Clancy’s book offers family law scholars is methodological—she provides us with tools to help identify how alleged facts about bodies and bodily activities are often better understood as judgments that are made as a matter of science or, as the case may be, as a matter of law. Continue reading "Against Normalizing Bodies"
Jun 20, 2024 Wendy WagnerAdministrative Law
Is the bureaucracy a deep state run by unaccountable bureaucrats? Most of us in administrative law think not, but when push comes to shove, we must concede that we have precious little idea of how agency staff operate on the ground to fulfill their statutory commands.
In The Accountable Bureaucrat, Anya Bernstein & Cristina Rodríguez (hereinafter B&R) step into this void and, in a manner reminiscent of the big reveal in the Wizard of Oz, expose the “man behind the curtain.” By asking the bureaucrats themselves how they transform “abstract statutes into concrete rules that govern conduct” (P. 1679), the authors make significant advances in our understanding of this important, but rarely studied world of bureaucratic discretion. Armed with a pre-prepared list of questions that structure their open-ended interviews, the authors (Bernstein holds a PHD in anthropology) canvass thirty-nine current and former employees (both political and career) from eleven different agencies, ranging from the Department of Homeland Security to the Environmental Protection Agency. (Pp. 1685-86.) B&R then code the transcripts and notes with a detailed rubric in search of patterns and behaviors that cut across the different regulatory programs. Continue reading "How Do Bureaucrats Exercise Policymaking Discretion? A Glimpse Inside the Black Box"
Jun 19, 2024 Leonid SirotaConstitutional Law
Chief Justice John Roberts (in)famously parodied the gap between the interests of judges and practising lawyers and those of academics by suggesting that the latter were unaccountably preoccupied by “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.” One law professor even jokingly took him up on the suggestion. But the real trouble, comparative constitutional scholar Aileen Kavanagh might say, is that constitutional law scholars would not even be interested in 18th-century Bulgaria. Categorical imperatives, sure; the people for whom they are to serve as universal laws, not so much.
Kavanagh wants to change that: she wants us “to ‘keep it real’ in constitutional theory.” Too much constitutional scholarship, she argues, is inattentive to the real world, to the flesh-and-blood individuals who inhabit it, and above all to the institutions that govern it. It busies itself with propounding normative theories derived, at best, from highly stylized models of reality, and disdains “mere” description of how things actually work. That’s not good enough, Kavanagh argues. Because “[t]he normative depends on the descriptive to a large degree…, constitutional theorists of all stripes would benefit from submitting their theories to a rigorous reality-check.” This is, it may be worth emphasizing, a concern with and an argument about scholarship, not adjudication. At most, as is noted below, more reality-based academic work may prove more useful to the courts than its more abstract counterpart. Continue reading "A Real Useful Reminder"
Jun 18, 2024 Christopher J. BuccafuscoIntellectual Property Law
Peter Karol,
What’s The Use? The Structural Flaw Undermining Warhol v. Goldsmith, __
J. Copyright Soc’y __ (forthcoming, 2024), available at
SSRN (Dec. 13, 2023).
Virtually no one in the scholarly community is happy with the Supreme Court’s 2023 decision in Andy Warhol Foundation v. Goldsmith. The case produced aggressive majority and dissenting opinions by justices whom we normally think of as well aligned: Justice Sotomayor writing for the majority, and Justice Kagan writing in dissent. Peter Karol’s recent article shows that the opinions generated more heat than they did light, because the two Justices fundamentally misunderstood the case, the law, or both. This leaves the case’s precedential value deeply in doubt.
The case pitted the Andy Warhol Foundation (AWF), a nonprofit organization created after Warhol’s death to license uses of his artwork, against Lynn Goldsmith, a photographer who took a photo of the musician Prince in 1981. In 1984, Goldsmith’s licensing agency granted Vanity Fair a license to use the photograph as an artist reference for a story that would appear in the magazine. Vanity Fair then commissioned Warhol to create an image to illustrate a story about Prince. Warhol (and/or his team) created 16 images based on the Goldsmith photo (the Prince Series), one of which was used by Vanity Fair. Then, when Prince died, Condé Nast contacted AWF about licensing one of the Prince Series prints for a commemorative issue, which it published in 2016. Condé Nast chose a different Warhol work depicting Prince for the cover of that issue. Continue reading "The Textualist Supreme Court Misreads the Copyright Act Once Again"
Jun 17, 2024 Christopher SloboginCriminal Law
By now, the great American incarceration tragedy is old news, as are most ideas about what to do about it. But then along comes this book, Excessive Punishment: How the Justice System Creates Mass Incarceration, edited by Lauren-Brooke Eisen, a former prosecutor and journalist who is now senior director of the Justice Program at the Brennan Center for Justice. Consisting of 38 chapters by 38 authors, along with an introduction by Eisen, the book provides a refreshingly informative and often inspiring take on our incarceration problem. It is refreshing because each chapter is very short (all are under 10 pages once the notes are taken out) and written in punchy, concise language shorn of scholarese. It is informative because, even for someone like me who has written quite a bit about the topic, new insights abound, if only because the authors include not just law professors, but sociologists, criminologists, defense attorneys, prosecutors, directors of advocacy and research entities, investigative journalists, federal and state officials, and a number of formerly incarcerated individuals. It is inspiring because, while all of the authors offer searing diagnoses of our obsession with punitiveness, they also provide bracing stories of people resisting it or provocative means of undermining its consequences.
If there is one central message in the book, it is that our system is far too harsh, for a variety of reasons. Eisen’s introduction argues that “[i]ncarceration has become about neither rehabilitation nor holding people accountable. Instead, it has become about retribution.” (P. 2.) Jonathan Simon agrees, writing that “[t]he appeal of accountability, of paying a debt to society, is supposed to be reintegration[,] in reality, it has usually meant the opposite—sanctions into perpetuity.” (P. 21.) Jeremy Travis and Bruce Western, in the book’s final chapter, put it this way: “The great injustice of the punitive posture of contemporary criminal justice [is] to attribute a superabundance of moral agency to those who, by virtue of economic, demographic and social disadvantage, often had the fewest choices to make.” (P. 339.) Backing up this point, Lenore Anderson points to research finding that even victims, many of whom know their perpetrators, prefer rehabilitation over punishment (P. 30.) Peggy McGarry starkly concludes that “we seem to be content to waste the lives of those who have broken the law.” (P. 258.) Continue reading "The Many Colors of Punitiveness"
