Yearly Archives: 2024
Mar 6, 2024 Andrea BoyackProperty
John Infranca’s recent article, Singling Out Single-Family Zoning, recounts and critiques the foundational legal arguments underlying the advent and dominance of single-family zoning. His insightful framing of this historical perspective is especially valuable in the context of today’s debates about the impacts and future of single-family zoning.
A century ago, localities, land use professionals, and lawyers innovated zoning systems that created protected enclaves for single-family detached homes, isolating these residences from multifamily residential, commercial, and industrial uses. In the 1920s, courts considered and ultimately upheld such land use schemes in opinions that include the seminal 1926 Supreme Court decision of Village of Euclid v. Ambler Realty. Once U.S. courts generally accepted that single-family zoning was a valid exercise of a municipality’s police power, this type of zoning proliferated throughout the country, becoming the unique and defining feature of American land use. But the ubiquity of single-family zoning in the United States obscures its legally questionable foundation. Continue reading "One Hundred Years of Solitude: A Reconsideration of Single-Family Zoning"
Mar 5, 2024 Aila HossLexNative Peoples Law
Professor Troy Andrade chronicles the distressing hundred-year history of the Hawaiian Homes Commission Act in his article, Belated Justice: The Failures and Promise of the Hawaiian Homes Commission Act, published in the American Indian Law Review. This history is marked by racism, the indulging of non-Native business interests, and political retaliation. Professor Andrade describes it as “the journey of a people forced to demand, decade after decade, what they were entitled to by law.”
Prior to European contact, Native Hawaiian social and political structures were based on chiefdoms with communal land ownership and management. European contact, the Western-backed establishment of the Kingdom of Hawai’i, and American colonization disrupted traditional land systems and displaced Native Hawaiians from their homelands. The United States has acknowledged that the annexation of Hawai’i as a territory included the transfer of lands from Native Hawaiians without consent or compensation. Continue reading "Native Hawaiian Homelands for Native Hawaiians"
Mar 4, 2024 Christine BartholomewCourts Law
The 118th Congress has pursued a robust investigatory agenda, probing topics from the origins of COVID-19 to Hunter Biden to “greed in the pharmaceutical industry.” Such investigations are hardly new. But the future utility of such investigations may depend on a cryptic aside made by Chief Justice Roberts in the Court’s 2020 decision in Trump v. Mazars. Roberts stated that recipients of congressional subpoenas “have long been understood to retain common law and constitutional privileges,” including the ability to assert the attorney-client privilege. Scholars have spilled significant ink over the significance—if any—of this statement. In House Rules: Congress and the Attorney-Client Privilege, David Rapallo examines how to best understand Roberts’s statement. In doing so, he delves into an underexamined corner of evidence scholarship: the application of privileges outside of judicial proceedings.
Mazars did not involve an assertion of privilege. Consequently, as Rapallo explains, some scholars dismiss Roberts’ statement as “nothing more than erroneous and ill-informed dictum.” Others view the statement as affording subpoena recipients absolute protection for attorney-client communications, representing a “sweeping change.” It would mean the judiciary—not Congress—decides the evidentiary rules that apply to congressional investigations. While Roberts discussed only the attorney-client privilege, continuing down that road could require Congress to recognize other privileges or evidentiary rules rooted in common law.
Rapallo threads these two extremes by suggesting a third path to understand Roberts’ statement: “[r]ecipients of congressional subpoenas who are compelled to produce information to Congress retain their right to assert the attorney-client privilege in other venues.” For those versed primarily in how privileges work in judicial proceedings, the notion that the attorney-client privilege may not apply to all investigatory proceedings may seem surprising. But Rapallo makes a compelling case from a somewhat surprising starting point: separation of powers. Continue reading "The Attorney-Client Privilege Goes to Washington"
Mar 1, 2024 Taisu ZhangLegal History
There is a traditional narrative about law and legality that scholars have told, in various forms, since the late nineteenth century. In this telling, generalized, formal law emerged as an institutional response to sociopolitical flattening and socioeconomic distancing. As societies transitioned from “status to contract,” abandoning traditional hierarchies in favor of ideals of individual equality, formal equality before the law became more attractive.
Similarly, as economic activities expanded beyond the horizon of closely knit social networks, the institutional need for stranger-oriented transactions and collaboration created immense demand for formal legal institutions that supplied uniformity and reliability across highly diverse socioeconomic terrain. Correspondingly, new ideas of “law,” “legality,” and “the rule of law” emerged.
What has too often been missing from these narratives is a compelling account of the transition itself: how socioeconomic need translated into concrete political, intellectual, institutional change. The idea that demand produces supply over the long term may well be correct, but the specific mechanisms of that supply nonetheless deserve careful study, not least because it tends to affect the final institutional product in both form and substance.
In Redefining the Rule of Law: An Eighteenth-Century Case Study, Christian R. Burset provides a precisely argued, expertly documented, and intellectually sophisticated account of one such mechanism. Through an examination of legal-political dialogue in the eighteenth-century British empire, Burset demonstrates that the specific experience of colonialism generated much of the intellectual and political energy behind modern “rule of law” ideals that have gained both dialogical and institutional dominance in the Anglosphere. Continue reading "Empire of the Rule of Law"
Feb 29, 2024 Gilberto MorbachJurisprudence
“What could there be but amiability between two nice Jewish boys from Providence, Rhode Island?”
Those were the words of Stanley Fish during one of Ronald Dworkin’s seminars at NYU, to which he was invited by a fierce intellectual opponent: Dworkin himself. The episode is recalled by Professor Fish in an interview conducted by Thomas Bustamante and Margaret Martin, editors of New Essays on the Fish-Dworkin Debate—an excellent collection of essays dedicated to the (still neglected) exchange between Dworkin and Fish. When I say ‘neglected’, I say so because this book, recently published by Hart Publishing, is the first volume entirely dedicated to this debate that still carries important implications in contemporary jurisprudence (in contemporary philosophy tout court, I would say), from matters that range from interpretation and objectivity to the very enterprise of theorising itself. The interview—impressively illuminating and fun to read, one should add—finishes the volume and is preceded by 19 chapters divided in four parts. Continue reading "Still engaging: The Fish–Dworkin Debate"
Feb 28, 2024 Kristelia GarcíaIntellectual Property Law
Rachel Landy, Downstreaming, 65 B.C. L. Rev. ___ (forthcoming, 2024).
Commentators have long raised the alarm about over-consolidation in the entertainment industries and the resulting barriers to entry seen in the downstream market. One line of scholarship identifies copyright law as a lever that policymakers might use to promote new entry into the copyright industries. Another looks to antitrust law to alternately break up, or prevent, over-consolidation. Some scholars have suggested utilizing both copyright and antitrust. Still others, myself among them, have expressed skepticism in the ability of either copyright or antitrust to effectively remedy the problem, and instead hope to borrow regulatory ideas from other contexts.
In an engaging new article, Rachel Landy takes a fresh look at the challenge of over-consolidation and power in the music industry, and proposes two novel approaches—tax and mandated transparency—for restoring competition and encouraging market entry in the streaming music space. Continue reading "Taxing Collusion"
Feb 27, 2024 Erin F. DelaneyInternational & Comparative Law
Harshan Kumarasingham,
The Historical Constitution,
in 1
The Cambridge Constitutional History of the United Kingdom (Peter Cane & H. Kumarasingham eds., 2023).
There is much to like in the new two volume Cambridge Constitutional History of the United Kingdom, a masterful compendium of theory and history from leading scholars, covering everything from King Æthelred the Unready to Liz Truss (similarly unready). As a comparative matter, however, it is Harshan Kumarasingham’s excellent opening chapter The Historical Constitution, that resonates with current debates in the United States.
As the U.S. Supreme Court falls further and further in thrall to history, with its attending assumptions of neutrality, certainty, and truth, it is illuminating to read about constitutional history in the United Kingdom. Kumarasingham recognizes that “[a]ll constitutions rely on history” (P. 3), but in his telling, history is acknowledged both as constitutive of the British constitution and as a political construct. The candor is refreshing. Continue reading "Constitutional History and the Historical Constitution"
Feb 26, 2024 Myrisha LewisHealth Law
The first two sentences of the abstract for Leah R. Fowler’s & Michael R. Ulrich’s Femtechnodystopia are stunning but accurate: “Reproductive rights, as we have long understood them, are dead. But while history seems to be moving backward, technology moves relentlessly forward.” (P. 1233.)
The law often trails behind technology, especially reproductive technology. Femtechnodystopia focuses on fertility awareness-based contraception and proception apps and how these apps, which can enable users to take control over their reproductive lives, can, in a post-Dobbs world, be (legally) dangerous to users. After discussing the many benefits and perils of Femtech, Professors Fowler and Ulrich argue that there are three key criteria that Femtech must satisfy in order to avoid a potential dystopian future: “apps must be accurate, the data they contain must be kept private and secure, and the consumer must be aware of their risks and limitations.” (P. 1240.) Continue reading "Digital Reproductive Privacy in a Post-Dobbs World"
Feb 23, 2024 Brian BixFamily Law
Kimberly D. Krawiec,
Gametes: Commodification and The Fertility Industry,
The Routledge Handbook of Commodification, Vida Panitch and Elodie Bertrand eds., (forthcoming 2024), available at
SSRN (Apr. 22 2023).
A growing number of couples and individuals use some combination of in vitro fertilization (IVF) clinics, egg donors, sperm donors, and gestational surrogates to have children. But these ways of helping the infertile have children have raised moral qualms. Kimberly D. Krawiec’s paper, Gametes: Commodification and The Fertility Industry, offers a concise and persuasive overview of one small part of the debate: moral objections that have been raised to egg donation and payments for egg donation.
As Krawiec notes elsewhere, “[t]he United States is unusual among most jurisdictions in that it permits a legal market in human eggs.” And as this paper elaborates, much of the regulation of compensation for egg donors has occurred in an indirect way. The vast majority (as of 2018, 86%) of IVF clinics were members of the Society for Assisted Reproductive Technology (SART) (P. 5). SART, in turn, required its clinic members to follow certain “best practices,” including the guidelines for egg donor compensation set by a different group, the American Society for Reproductive Medicine (ASRM) (P. 5). Continue reading "Egg Donation, Commodification, and Coercive Payments"
Feb 22, 2024 Sheila Vélez MartinezEquality
The book, Race and National Security, edited by Professor Matiangai V. S. Sirleaf, of the University of Maryland Francis King Carey School of Law, offers us a historic opportunity to change our political imaginary. This book delivers on its promise to “fully excavate[] the question of how race and racism relate to national security domestically, transnationally[,] and internationally.” In the words of Walter White, Executive Secretary of the National Association for the Advancement of Colored People (NAACP) from 1929–1955:
Race discrimination threatens our national security. We can no longer afford to let the most backward sections of our population endanger our country by persisting in discriminating practices. We must meet the challenge of our neighbors, not only because discrimination is immoral, but also because it is dangerous.
Although White’s critique continues to be true today, in the context of the broader conversation on national security, it is now clear that White’s focus on discrimination provides an insufficient framework. One of the many achievements of Race and National Security is that it centers a framework not of discrimination, but rather of racial justice, one that focuses on addressing institutional racism and anti-subordination. The growing general focus on racial justice, both on a national and a global scale, coupled with the continuous resistance against established racial norms, justifies the book’s deliberate examination of these issues and serves as the driving force behind this book. The authors contributing to the volume look at national security law as complicit in furthering systemic inequality from an anti-subordination positionality. They illustrate practices and policies that, whether by intent or effect, enforce the subjugated social status of historically oppressed communities within societies across the globe under the protective umbrella of national security. Thanks to their work, we are now able to draw interesting connections among the various ways these racial injustices work. Continue reading "The Intersection between Race and National Security"
