Monthly Archives: July 2024
Jul 17, 2024 Naomi R. CahnFamily Law
Catherine Smith,
“Children’s Equality Law” in the Age of Parents’ Rights, 71
Kan. L. Rev. 539 (2023), available in draft at
SSRN (April 21, 2023).
When I teach canonical parentage and child custody cases such as Michael H. v. Gerald D. or Troxel v. Granville, I ask the class what they know about Victoria or Isabelle and Natalie Troxel. Students are often a little startled to hear the names of the children at the core of these cases, and we then discuss how rarely the children’s actual interests are addressed. The cases are framed as battles between adults over their rights to the child; even though Victoria asserted her own liberty and equal protection claims, the Michael H Court was highly dismissive of them.
Catherine Smith has been working to change that situation. Along with Northwestern Pritzker School of Law Associate Dean Robin Walker Sterling and George State College of Law Professor Tanya Washington, Smith has received a grant of over $2 million to fund a new project, The Advancement for Children’s Constitutional Rights Consortium. One goal is to develop a new casebook, Children and the Constitution, which will focus on children’s rights in the constitutional law canon. Professor Smith’s article, “Children’s Equality Law” in the Age of Parents’ Rights, provides insight into some core aspects of what this revisioning of the constitutional canon might involve. The article notes that, while one conception of children’s rights could include both liberty and equal protection rights, an even “broader conceptualization could invoke a panoply of young people’s social and civil rights.” Continue reading "Building the Constitutional Canon for Children’s Rights"
Jul 16, 2024 Da LinCorporate Law
How can we better understand the scope of inequity and track its evolution?
By any metric, gender gaps are ubiquitous within senior ranks of the legal profession. Women have outnumbered men in law schools since 2016 but represent only 20% of all equity partners at multi-tier law firms, are 2 to 3 times more likely than male faculty to occupy non-tenure track and interim dean positions, and make up only 12 to 22% of those who have argued before the U.S. Supreme Court over the past decade. Yet these figures, although striking, don’t capture the full scope of the inequality. Qualitative studies consistently reveal, for instance, that female attorneys have different professional experiences than their male counterparts, exit the profession earlier, and face greater obstacles advancing in their careers.
The persistence of gender and racial inequities in the legal profession is not new, nor are questions surrounding their causes, effects, and potential solutions. But a recent article, Gender and the Social Structure of Exclusion in U.S. Corporate Law, by Afra Afsharipour and Matthew Jennejohn offers an intriguing avenue to better answers. Continue reading "Network Effects"
Jul 15, 2024 Sheldon EvansCriminal Law
Esther Hong,
The Age of Creativity and Crime (May 6, 2024), available at
SSRN.
There is a thin line between creativity and crime. In an era of scholarship where there is a deluge of books, articles, and commentary on mass incarceration, prosecutors, policing, and the nuances of crime and social justice, Professor Esther Hong dares to be creative. Hong skillfully weaves together the criminal sociology of Émile Durkheim with modern neuroscience and legal standards to persuasively argue that creativity and criminality often overlap. She explores what that means for the overcriminalization of youth and the insatiable human pursuit of progress.
In The Age of Creativity and Crime, Hong is taking a path less traveled that lies at the intersection of sociology, child development, science, and criminology. And the payoff is incredibly worthwhile. In the piece, Hong argues that there are aspects of criminal law that set arbitrary boundaries between positive creativity and negative criminal activity. She does this by relying on the sociological literature that has found many links between the character traits of creativity and those of criminality. People that fall into the “creative” or “criminal” category both refuse to follow set norms, have a distrust of authority, and tend to think outside of the box to solve common problems. How much difference is there between a person who expresses their artistic creativity by splashing art on a canvas when compared to a similar artist splashing art on the side of a commercial building? One is considered a positive creative influence, while the other is criminalized as a defendant creating blight. Hong’s contribution is to highlight the similar character traits shared by those acting on the spectrum of what society considers as positive progress versus what society considers as criminal harm. Continue reading "Getting Creative on Crime Policy"
Jul 12, 2024 Pamela BookmanCourts Law
Gerald S. Dickinson,
Judicial Laboratories, ___
U. Pa. J. of Const. L __ (forthcoming, 2025), available at
SSRN (June 18, 2024).
State courts contain multitudes. This is true within a particular state court system. Several states have multiple trial courts—New York, one of the largest court systems in the world, famously has eleven—handling a wide variety of matters. It is also true across state courts and state court systems throughout the country. State supreme courts are increasingly in the spotlight as the keepers of state substantive law on important issues such as abortion and election law. But states’ various approaches to court procedures and courts’ structural role in democracy have received less attention.
This is why I like Jerry Dickinson’s work on state courts as laboratories of democracy. He urges us to see state courts not only as interpreters of law and articulators of rights (and thereby developers of public policy), but also as places for experimentation in procedure and institutional design. Readers of this blog know that procedure and court structure matter. The delay of a trial date or the justiciability of an issue in one court as opposed to another can have significant consequences for our law and our democracy. In state or federal courts, individual judges can make procedural determinations or a panel of judges can interpret law. Continue reading "State Courts as Laboratories of Structure, Procedure, and Democracy"
Jul 11, 2024 Caprice RobertsLexRemedies
Monica Haymond,
Intervention and Universal Remedies,
91 U. Chi. L. Rev. __ (forthcoming, 2024), available at
SSRN (Feb. 1, 2024).
National injunction litigation in public law cases is prevalent, controversial, and important. Universal remedies such as national injunctions are increasingly prominent in high-profile cases. The availability and shape of such remedies always matter to the parties, but the effect on nonparties is another key consideration. Much scholarly attention exists on the efficacy of such relief, but gaps in the literature remain. Professor Haymond fills a gap on the unexpected role of intervenors on these bold remedies. Her recent work, Intervention and Universal Remedies, offers provocative, detailed data that demonstrates significant consequences of intervenors on litigation seeking national injunctions. Ultimately, this rigorous examination reveals how the treatment of intervenors has immense impact and warrants deeper attention.
Professor Haymond examines over 500 national injunction cases to reveal that an unexpected, outsider participant has an outsized effect on outcomes. Her study uncovers that intervention in such suits is “commonly sought, often contested, unpredictably obtained, and enormously consequential.” (P. 6.) Professor Haymond poses an important question: What if the federal rules governing such high-stakes litigation no longer protect the values they were designed to serve? The Federal Rule of Civil Procedure covering intervenors is Rule 24, and its purpose is threefold: “to secure a meaningful opportunity for affected nonparties to participate in cases affecting their interests, to enhance judicial efficiency, and to safeguard some measure of party control.” (P. 6.) Yet Professor Haymond concludes that intervention practice in national injunction cases effectively does not advance those values. Continue reading "Universal Remedies and the Consequential Roles of Intervenors and Judicial Discretion"
Jul 10, 2024 Orit GanContracts
Inequality of bargaining power between parties is a significant concern in contract law. Parties are not always equal, and negotiations may occur under conditions of power imbalance, impacting the contract terms.
A fascinating new article by Rebecca Stone explores which determinants of inequalities of bargaining power between contracting parties should be legally relevant.
The article begins by defining bargaining power as the party’s ability to ensure that the contract terms serve their own objectives. Inequality of bargaining power means that one party possesses a greater ability to do so than the other. Bargaining power is influenced by factors both within the party’s control (such as their interest in the contract) and outside their control (such as the actions of the other party and social conditions), as well as by objective factors (such as the market) and the parties’ perceptions (such as a party’s beliefs regarding the other party’s interests). Continue reading "Contract Law and Inequality"
Jul 9, 2024 Pat GudridgeConstitutional Law
Neither fish nor fowl? Canons of statutory interpretation seem to exist in a liminal space. They react to statutory language, for example, without obviously fitting “inside” any singled-out statute particular authorization. Maybe canons are expressions of judicial statecraft—ad hoc implementations of adjudicative norms, rather than primary legal instruments. We still remember Brandeis and Frankfurter and Bickel, don’t we? Even so, we ought to want to know where canons come from.
Anyone aware of the well-established textualist turn in statutory and constitutional interpretation these days likely recognizes that textualisms and canons don’t always mix well. The controversy lies mainly with substantive canons. These are treated as somehow associated with the Constitution, not simply investigatory abbreviations or cues for the reader of the statute.
Well-put analyses are readily at hand. Professors Eidelson and Stephenson call attention to two writers in particular. John Manning wrote extensively on these questions, beginning around the turn of the century and running through fifteen prolific years, until he enlisted or was drafted into administrative service. His studies were and are clear, thoughtful, and well-elaborated: skeptical of quick conclusions, attentive to the virtues of close readings of both statutes and constitutional passages, and ready to work through possible tensions and reconciliations. Manning’s writing is very easy to applaud. Eidelson and Stephenson also focus heavily on a lengthy, well-done article published by then-Professor Amy Coney Barrett in 2010. Continue reading "One or Many More or Less"
Jul 8, 2024 Jodi ShortAdministrative Law
Catherine Baylin Duryea,
Emergency Oversight (May 20, 2024), available at
SSRN.
To ward off the dread that engulfs me when I contemplate the Court’s anti-administrative decisions and agenda, I love to read what amounts to regulatory fan fiction. Once, there was a time when administrative agencies roamed the earth, controlling the U.S. economy in minute detail. This was not just a rhetorical flourish or some feared dystopia lying down the treacherous slippery slope of judicial deference to agencies. It was life. What was that like? How did we survive it? Could it happen again?
Catherine Duryea’s article, Emergency Oversight, delivers these pleasures and more. Duryea analyzes the Emergency Court of Appeals (ECA), a specialized court that operated from 1942-1961 with exclusive jurisdiction to adjudicate challenges to price and rent regulations promulgated by the Office of Price Administration (OPA). OPA administered an extensive system of price and rent control regulations during WWII to thwart wartime inflation and ensure adequate wartime production. These regulations were promulgated under statutory authority delegating to the OPA’s Price Administrator the power to set maximum prices at a level that would “be generally fair and equitable,” giving “due consideration” to prices as they existed during a specified baseline time period. OPA regulations touched every aspect of American life during the war, “from what people ate for breakfast to what clothes they wore” (P. 13), to what rent they could charge for use of a refurbished outhouse. OPA had civil and criminal authority to enforce its price regulations. Continue reading "Through the Looking Glass: A Shared Vision for Economic Regulation"
Jul 5, 2024 Michael C. DuffWork Law
In Adding Insult To Injury: How Kansas’s $155,000 Cap On Permanent Total Disability Benefits Sets Up Injured Kansas Workers For A Lifetime of Hardship, author Gabrielle Stein effectively explodes the fiction that a workers’ compensation “grand bargain” continues to exist in Kansas. Workers injured in the workplace in the United States because of the conduct of their employers—whether negligent or innocent—are limited to state-based statutory benefit recoveries in lieu of tort damages.
The exchange of benefits for damages is often imagined to be a grand bargain in which workers give up full legal damages in exchange for extremely limited statutory workers’ compensation benefits consisting of indemnity wage benefits and payment for medical expenses. This insulates employers from tort liability and is supposed to also inure to the benefit of employees, whose tort claims might be difficult to establish and might otherwise be subject to an “unholy trinity” of affirmative negligence defenses abrogating a negligence claim: contributory negligence, assumption of the risk, and the fellow-servant rule.
Of course, the unholy trinity would be ineffective to bar negligence claims under current law in all but four American states—which have since the mid-twentieth century moved on from “absolute” defenses to a comparative negligence system—so the conceptual underpinnings of workers’ compensation have been seriously undermined (if not rendered irrational). But Ms. Stein additionally shows that any pretense that the workers’ compensation bargain is at least adequate is silly in Kansas given an indemnity cap of $155,000 for a permanent total disability claim. Continue reading "The Enduring Myth of the Adequacy of the Workers’ Compensation “Grand Bargain”"
Jul 4, 2024 Goldburn MaynardTrusts & Estates
Culture plays a major role in estate planning, whether we like it or not. Whereas the law of wills and trusts allows for vast testamentary freedom, millions of Americans, either because they want to avoid talking about death or because they do not have the resources to hire an estate planner, fail to avail themselves of these instruments. Some of the gaps have been filled by other nonprobate transfers like joint bank accounts and life insurance. A simple signature allows one to pass on assets at death using those forms of transfer. But outside of trusts, these nonprobate transfers do not cover all property and do not provide the flexibility of a will. The gap between what the testator wants and what society provides is particularly important if cultural norms prevent the individual from engaging in planning. In a recent article, Shui Sum Lau, a litigation attorney, considers how Asian cultural values can shape end-of-life and estate planning decisions.
According to Lau, Asian cultural values make Asian Americans the ethnic group most likely to support elderly relatives. For example, many Asian-Americans feel compelled to ensure the physical and mental wellbeing of their parents. Because elder care requires time and resources, we can assume that end-of-life planning would at least lower some of the decisionmaking burdens in these delicate circumstances. After all, deciding on life-saving care close to the end of a relative’s life can be extremely stressful for family members. Unfortunately, as Lau underscores, in many Asian cultures, discussions of death are taboo and often avoided, thus leaving children to make uncomfortable decisions on their incapacitated parents’ behalf because they refused to plan in advance. Continue reading "Cultural Lessons for Estate Planners"
