Jun 4, 2021 Brian FarkasLexInternational Arbitration
Once upon a time, litigators faced a clear choice among competing dispute resolution procedures. You could litigate. You could arbitrate. Or you could mediate. Early generations of dispute resolution scholars imagined these processes as being wholly distinct. Frank Sander, during the famed 1976 Pound Conference, envisioned a “multi-door courthouse” where disputes could be neatly grouped—with the ease of a Harry Potter-esque sorting hat—into the most appropriate resolution mechanism.
Over the past couple decades, these once-discrete processes have become more muddled. This is particularly true for complex commercial and international disputes. Processes converge and exist parallel to one another across jurisdictions. Parties may litigate the scope of an arbitration clause or the enforceability of an award. They may mediate one branch of a dispute while arbitrating another. They may also mix and match aspects of each procedure with blended processes like “med-arb” or “arb-med.”
Domestic and international court systems have both responded to, and shaped, this complicated reality. Pamela Bookman is among the clearest analysts of these trends in judicial innovation. Her new piece, Arbitral Courts, analyzes exactly what its title suggests: public courts that adopt many of the features of private arbitration. Oxymoron? Maybe. New reality? Definitely. Continue reading "Is an “Arbitral Court” an Oxymoron?"
Jun 3, 2021 Susan FortneyLegal Profession
In 1999, then-Professor Patrick Schlitz published a provocative article called On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession. Drawing on anecdotal accounts and empirical data, the article examined the perplexing issue of lawyer dissatisfaction. After discussing the explanations for why many lawyers are unhappy and unhealthy, Schlitz recommended strategies for lawyers pursuing career paths in practice settings where they can thrive and practice ethically.
Fast forward 20 years, to the results of an empirical study conducted by Professors Stephen Tang, Vivien Holmes, and Tony Foley and discussed in their article, Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers. This article examines the role ethical climate plays in influencing ethics and the connection between perceived ethicality and lawyer satisfaction. With heightened concern related to lawyer well-being and remote work, I commend the authors for conducting an ambitious study and urge you to read their article to learn more about their findings and recommendations. Continue reading "Why Ethical Climate Matters in Newly Admitted Lawyers’ Workplaces: An Empirical Examination of Ethical Climate, Job Satisfaction, and Lawyer Wellbeing"
Jun 2, 2021 Michael GoodyearIntellectual Property Law
In the past sixteen years, copyright law has undergone important changes. Court have issued major decisions, such as Skidmore v. Led Zeppelin, which clarified the Ninth Circuit’s substantial similarity test and rejected the inverse ratio rule, and Capitol Records, LLC v. Vimeo, LLC, in which the Second Circuit elucidated a more concrete red flag knowledge standard for purposes of the Digital Millennium Copyright Act. Significant new copyright legislation, in the form of the Music Modernization Act, has also been promulgated. And during this period, fair use jurisprudence has also continued to grow apace. Many of the cases that are now considered copyright law canon for students, academics, and practitioners alike were decided during this period, including Bill Graham Archives v. Dorling Kindersley, Ltd., Perfect 10, Inc. v. Amazon.com, Inc., Cariou v. Prince, and Authors Guild, Inc. v. Google, Inc. Barton Beebe’s recent article analyzing fair use opinions from 1978 to 2019 thus provides a welcome update to his earlier work that covered fair use cases from 1978 through 2005.
Both Beebe’s original article and this update use statistical analyses of all the fair use opinions issued during the period to draw conclusions about how judges have applied the four fair use factors and their subparts. Beebe’s earlier work provided an important statistical analysis baseline for anyone wanting to understand, modify, or improve fair use. This long-awaited update will no doubt prove useful in providing the most recent data on fair use determinations to those in the copyright space. Continue reading "Tracking Change and Continuity in Twenty-First Century Copyright Fair Use"
Jun 1, 2021 Amy MonahanHealth Law
Proposals to allow individuals to buy into a public health insurance program such as Medicare have been circulating for over a decade and have been the subject of much academic work. In The Private Option, Professor Brendan Maher offers an important addition to that literature by exploring how the competition between public and private payors that is inherent in public option proposals is likely to play out with respect to three key functions of health insurance: risk bearing, cost control, and ensuring quality care. It is a careful, highly readable, and non-ideological piece of scholarship that should be helpful to a range of stakeholders – from students trying to understand how health insurance markets function to policymakers trying to weigh the benefits of current health reform proposals. While not Pollyanna-ish, the article is ultimately hopeful, making an underappreciated case for the public option by explaining how competitive pressure from a public payor might result in better private health insurance options.
The article begins by explaining the various roles that health insurers play in the United States, focusing on three primary functions: risk-bearing, cost control, and encouraging quality care. The remainder of the article is devoted to evaluating how private payors might behave in a world in which they must compete against a public option. This evaluation is accomplished by assessing the comparative advantages of public and private payors with respect to the three primary functions of insurers previously identified. With respect to risk-bearing, the article unsurprisingly concludes that public payors have an enormous advantage over private payors. Indeed, Maher admits, if insurers were solely serving a risk-bearing function, no private payor could effectively compete with the government. As a result, it is unlikely that a public option would create genuine competition with respect to the risk-bearing function of insurance. Continue reading "Understanding the Competitive Effects of a Public Option"
May 31, 2021 Jedidiah KronckeLegal History
In recent decades, a new wave of critical literature highlighted how the concept of “civilization” emerged in the 19thcentury as a rubric to judge countries as worthy (or not) of admission to the European order of international law. Today this scholarship is commonly referred to as the “historical turn” in international legal scholarship. Much of this literature explored the problematic racialized origins of the term “civilized,” as well as its persistent impact on international law today. In this context, Ntina Tzouvala’s Capitalism as Civilisation presents a next-generation interpretation of the legacy of “civilization” of international law today.
Tzouvala’s book is ambitious on a number of fronts. She approaches “civilization” not as a singular term but as an argumentative pattern driven by an oscillation between what she calls the “logic of improvement” and the “logic of biology.” “Improvement” here refers to international law’s embrace of progressive universalism, and “biology” refers to assertions of immutable cultural difference. While these ideas are seemingly at odds, Tzouvala emphasizes how these dual logics exist in productive tension. Together, they kept those once deemed “uncivilized” as perpetual objects of needed reform and irresolvable incompatibility.
But Capitalism as Civilisation is even more ambitious than simply providing this new framing of the now well-established “historical turn.” The book can be read as a generational statement about what critical scholarship on international law should and can be. Within a single volume it attempts to provide a convincing synthesis of core tensions in the field, if not in critical scholarship more generally. With care and confidence, Tzouvala’s aims to integrate material analysis into the predominately discursive and deconstructive focus of her critical predecessors on the indeterminacy of international law. Continue reading "There Is No International Legal Order Beyond Capitalism"
May 28, 2021 Thomas BustamanteJurisprudence
Professor Gerald Postema’s new book, Utility, Publicity and Rights, offers a brilliant set of essays on Jeremy Bentham’s jurisprudence, complementing his previous works. In Jeremy Bentham and the Common Law Tradition, Postema departed from received interpretations that misread Bentham in two ways: first, decoupling Bentham’s normative moral and political theory from his jurisprudence and failing to explain the foundational role of utility in his account of the nature of law; second, underestimating the impact of Bentham’s legal positivism in practical reasoning and adjudication.
Like his previous work, Postema’s new book is a major contribution to the pursuit of integrity in Bentham’s jurisprudence. One of its merits is that it not only builds on the principle of utility but also unpacks two less known while no less foundational doctrines in Bentham’s philosophical system: his theory of meaning and his psychological theory. The book is divided in two parts. The first focuses on Bentham’s basic philosophical commitments. Chapter 1 introduces his account of language, epistemology, and ontology, offering a quasi-pragmatist interpretation of his theory of meaning. Chapter 2 turns to Bentham’s psychological theory to single out the self-regarding interests and social motives that can play a role in one’s individual and social life. The rest of the first part discusses Bentham’s utilitarian theory of value, with special reference to his expressivist meta-ethics (chapter 3), his theory of publicity (chapter 4), his account of equality (chapter 5), and the role of universal interests in Bentham’s moral and political theory (chapter 6). Postema describes these elements as integral parts of the meaning of utility, which play a foundational role in understanding the specific topics of the second part. Continue reading "Understanding Bentham’s Theories of Meaning and Publicity"
May 27, 2021 Elaine CraigEquality
In Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine Sherene Razack gives voice to the settler colonial violence perpetrated against Loreal Tsingine, a 27-year-old Navajo women who was shot and killed by Austin Shipley. Shipley, a white male police officer, claimed he was trying to apprehend her for alleged shoplifting. The article, which is brilliantly and compellingly written (as is typical of all of Professor Razack’s work) makes several claims. Most centrally, however, she asserts that racial terror – a violence done at both structural and individual levels – is at the very heart of the settler colonial project. In the North American context, the aim of the settler colonial project is the erasure, or in Razack’s words the annihilation, of Indigenous peoples in the interests of white settlement and prosperity. It is a state sponsored and centuries-old endeavour manifested through, for example, land and resource dispossession, cultural genocide, legal discrimination, the carceral state, and the destruction of the social, physical and political infrastructures that serve Indigenous peoples health and safety. Razack begins her analysis by reminding us that settler colonialism is an ongoing project, one that requires the continual imposition of racial terror.
Racial terror, Razack explains, maintains white supremacy and protects white entitlement, but also reassures today’s white settler subject that the imagined threat of racial otherness is contained. Settler colonialism is premised on the extraction not only of resources and lands but also through “everyday extractive relationships” that consolidate white superiority, among other things, by violating and annihilating Indigenous bodies. (P. 2.) Through a detailed excavation of the psychic underpinnings of the settler state, Razack reveals the way in which white identity is constituted through the continual reification of Indigenous peoples as a threat to ‘the community’. She writes, “[p]olice shootings of Indigenous people and the legal response to police use of force (along with everyday settler violence) are a part of the racial terror that is a central part of settler colonialism.” (P. 1.) Continue reading "The Quotidian and Constitutive Practice of Police Brutality Against Indigenous People"
May 26, 2021 Mathilde CohenInternational & Comparative Law
- Jorge L. Esquirol, Credit Supports for Italian Specialty Products: The Case of Prosciutto and Long-Aged Cheese, 14 FIU L. Rev. 589 (2021).
- Tomaso Ferrando, Gangmastering Passata: Multi-Territoriality of the Food System and the Legal Construction of Cheap Labor Behind the Globalized Italian Tomato, 14 FIU L. Rev. 521 (2021).
- Helena Alviar García, Italian Coffee: Retelling the Story, 14 FIU L. Rev. 443 (2021).
- Michele Graziadei, The Making of an Iconic Cheese: Mozzarella Di Bufala Campana D.O.P., 14 FIU L. Rev. 615 (2021).
- Fernanda G. Nicola & Gino Scaccia, It’s All About the Pasta: Protectionism, Liberalization, and the Challenge for Quality and Sustainability of Made in Italy, 14 FIU L. Rev. 479 (2021).
In 2020, Jorge Esquirol organized a magnifico symposium, “Made in Italy: The Law of Food, Wine and Design,” dissecting the laws that support the “Made in Italy” branding for the country’s most valued and globally exported products: espresso, mozzarella, olive oil, Parmigiano, pasta, prosciutto, tomatoes, wine, as well as design and fashion. This jot focuses on food.
Was your mouth watering just reading this list? Perusing the volume will both deepen and question your appreciation for Italian foods. You will learn fascinating facts about their histories, cultural valence, production conditions, consumption patterns, and regulation. All humans eat and most participate in the global trade of food, yet foodways (eating and culinary practices) continue to be tied to personal, cultural, and national identities. The collection of articles contributes to the burgeoning scholarship on international and comparative food law. Jotwell does not usually publish reviews of symposia, but this compendium is most powerful when taken in its entirety. It is not any individual story of food, but it is the collection that is remarkable. Read as products of law, these foodstuffs raise deep and troubling issues of imperialism, unequal trade between North and South, labor exploitation, animal abuse, and environmental degradation. Continue reading "Pizza, Pasta, and Gelato: The Legal Construction of “Made in Italy”"
May 25, 2021 Ayelet Blecher-PrigatFamily Law
In Queering Family Trees, Sandra Patton-Imani explores parenthood at the intersection of race, class, and sexual orientation during the period from the 1990s until the Supreme Court’s landmark decision in Obergefell v. Hodges. This short period of time witnessed dramatic shifts regarding same-sex relationship recognition and adoption at the local, state, and federal levels, culminating in the legalization of same-sex marriage. In Patton-Imani’s exploration, same-sex marriage is only one fragment of the larger story of family policy, which involves welfare, immigration, and adoption policies.
Patton-Imani’s historical exploration is unique in that it is built on over one hundred ethnographic interviews with African American, Latina, Native American, Asian American, and white lesbian mothers living in different states, in a range of socioeconomic circumstances, all of whom were in the process of building their families during this time period. Through these women’s narratives, we learn of the varied ways through which they formed their families, faced their daily challenges, and struggled to protect their family relationships and to gain benefits and rights that heteronormative families routinely enjoy. Continue reading "The Roads Not Taken in the Forest of Family Trees"
May 24, 2021 Guha KrishnamurthiCriminal Law
The Supreme Court stresses that the tests governing the Fourth Amendment are objective ones, looking to what reasonable officers would do and eschewing examination of the actual officers’ subjective mental states. The Court has stated that this is because the law is not concerned with the officer’s “state of mind, but the objective effect of his actions.” In this characteristically incisive article, Professor Orin Kerr provides good reason to doubt the Court’s rhetoric. Kerr shows that the Court regularly looks to the subjective states of government officials in deciding the propriety of law enforcement conduct. Such subjective tests pepper the Fourth Amendment jurisprudence, regarding searches, seizures, their reasonableness, and their constitutional remedies.
That’s not always a bad thing, according to Kerr. Nor is it always a good thing. Subjective tests can help us create narrow, more tailored rules that serve law enforcement benefits and protect our civil liberties. But that’s highly dependent on their reliability; indeed, when we can’t accurately determine officials’ mental states, these tests are manipulable and can do serious harm. Figuring out when they work is a tough task, but Kerr provides us with useful guidance. Continue reading "Fourth Amendment Subjectivity and Its Undetermined Utility"
