Sep 11, 2018 Nicole Stelle GarnettProperty
Maureen E. Brady,
The Forgotten History of Metes and Bounds, 128
Yale L.J. __ (forthcoming, 2019), available at
SSRN.
A decade and a half ago, as a neophyte property teacher, I read Andro Linklater’s history of the surveying and distribution of land west of the Appalachian Mountains. The central animating principle in the book—Measuring America: How the United States was Shaped by the Greatest Land Sale in History (2002)—was simple, and seemingly self-evident: When it comes to surveying and selling land, straight lines are better than squiggly ones.
(I was less convinced by Linklater’s side effort to convince readers that the metric system is infinitely better than the imperial system, although his arguments on this front brought back fond memories of my elementary school teachers’ assurances that the United States would adopt the metric system by the year 2000.)
In the years since the publication of Linklater’s book, economists have amassed substantial evidence supporting his argument that the “grid” system of land demarcation employed by the federal government in the Northwest Territories and (for the most part) thereafter in the distribution of western lands is far more efficient than the older metes-and-bounds system used in the original thirteen colonies and other early states such as Tennessee and Kentucky. Continue reading "Metes and Bounds: A Revisionist History"
Sep 10, 2018 Jaya Ramji-NogalesLexImmigration
Under the Trump administration, each week brings a new attack on due process and on substantive protections for migrants. Sacred cows such as Temporary Protected Status for Salvadorans, which had been extended by Democratic and Republican administrations alike for the past two decades, are dispatched with alacrity. Attorney General Sessions appears intent on destroying the immigration adjudication system, demanding that immigration judges meet unrealistic case completion goals and reversal rates while limiting the resources available to the system. Migrants’ rights are a constant source of litigation, from highly anticipated Supreme Court judgments to battles fought through amicus briefs before the Attorney General.
Beyond the momentary relief of deft political satire, a comparative glimpse across the pond can provide helpful perspective on the situation at home. Vladislava Stoyanova’s forthcoming article reminds us that we are not the only nation facing populist movements that “exploit public anxieties over migration” in order to “curb[] immigration and restrict the rights of migrants.” Her rigorous and painstaking analysis of the European Court of Human Rights (ECtHR) decisions prompts analysis of larger philosophical questions about law’s paradoxical approach to migrants’ rights and offers a provocative new concept: populist judicial reasoning. Continue reading "Populist Judicial Reasoning"
Sep 7, 2018 Fred O. Smith, Jr.Courts Law
Aaron Tang,
Rethinking Political Power in Judicial Review, __
Cal. L. Rev. __, (forthcoming 2019), available at
SSRN.
Courts and commentators have long debated the proper role of judicial review in democracies, particularly the question of how deferential courts should be when determining whether to uphold legislation. Much constitutional adjudication is devoted to understanding phrases that are reasonably susceptible to various meanings, even when history and precedent are consulted. In those situations, how certain should jurists be that their interpretations of constitutional phrases or terms are correct before they vote to invalidate democratically enacted legislation?
At least two facts drive and complicate the answer to this question. First, we live in a land where the people purportedly govern themselves; there must be some limitations on the ability of unelected judges to invalidate legislation. Second, we live in a land where history has taught that, when left unchecked, elected officials sometimes trample individual rights and subjugate politically powerless minorities with impunity. Attentive to both of these facts, adherents of the political process theory of judicial review advocate for a judiciary that is deferential to politically accountable branches unless (1) the law undermines the capacity of citizens to make political change or (2) the law burdens a politically unpopular group. Under John Hart Ely’s traditional understanding of political process theory, when a law “clog[s] the channels of political change,” or targets a politically powerless group, this should increase courts’ readiness to invalidate a potentially unconstitutional law. Continue reading "The Politically Powerful and Judicial Review"
Sep 6, 2018 Dara E. PurvisFamily Law
Meghan Boone,
Lactation Law, ___
Calif. L. Rev. ___ (forthcoming 2018), available at
SSRN.
If one reason that women have been held back in the workforce is difficulty reconciling caregiving responsibilities and work-related duties, then one obvious method of reform should be to require employers to accommodate caregiving, particularly those forms of caregiving that are disproportionately or exclusively fulfilled by women. For example, because a typical full-time work schedule is not conducive to a new mother’s schedule of breastfeeding or pumping breast milk, many women are forced to prioritize work over breastfeeding. In response, both state and federal laws require employers of a certain size to accommodate new mothers returning from maternity leave by providing them with breaks and a suitably private area in the workplace to pump breast milk, allowing them to return to work and continue to feed their babies breast milk. Surely a win for feminism and facilitating women’s employment choices, right?
In her forthcoming article Lactation Law, Meghan Boone answers no, at least as such statutes are currently written. From the opening paragraphs, she poses a startlingly counterintuitive example of a Maine teacher whose child was stillborn. In the following days, she began lactating, an understandably traumatic process for someone mourning a stillbirth. As she grieved, she learned of nonprofit organizations that collected donated breast milk and distributed it to babies who would otherwise not be fed breast milk and decided to participate. The school where she worked, however, refused to accommodate her pumping breast milk because the Maine statute that required employers to accommodate lactation only applied to mothers nursing or pumping milk for their own children. Because the teacher’s breast milk would be donated to other babies, the school was not required to accommodate her desire to pump breast milk while she was at work. Continue reading "Are Breastfeeding Protections Anti-Feminist?"
Sep 5, 2018 Barbara LevenbookJurisprudence
Although in most states and in the federal system, the law’s answer to the title question is “yes,” Youngjae Lee’s answer—with a qualification it will take the rest of this jot to explain—is “no.” To be more precise, his answer, surprisingly, is that it depends on the issue that is liable to disagreement. Making certain assumptions, Lee argues that unanimity is the best rule to adopt for juries reaching decisions about empirical facts in criminal cases. In these circumstances, requiring unanimity among jurors is both most faithful to the beyond-the-reasonable-doubt requirement for conviction and most faithful to the justification of this requirement. But juries must make decisions on all of the elements of crimes (and sometimes on affirmative defenses, I might add); to do this, often juries must make decisions on issues that are at least partly evaluative. (Lee calls them “moral issues.”) Some of his examples come from the core of criminal law: rape (reasonable belief in consent or a reasonable expectation that defendant recognize lack of consent) or homicide (depraved-heart murder, reckless homicide, self-defense). For these decisions, Lee argues, unanimity is not the rule to adopt.
He arrives at these conclusions by assuming a principle of rationality that has lately attracted attention from epistemologists: the “equal weight view.” That view says that if there is disagreement among persons with equal cognitive capabilities and equal access to information (“epistemic peers”), each belief is equally reasonable, and so, has equal weight. Each person should adjust his belief in the direction of those with whom he or she disagrees. In a simple case of 11-1 disagreement where eleven have the highest confidence about the defendant’s guilt, the equal weight view requires that they lower their confidence. Under some circumstances, lowering by the eleven results in an insufficient average level of confidence among all the jurors—insufficient to satisfy the requirement of being beyond a reasonable doubt—so a unanimous verdict of not guilty should be reached. If the sole dissenter is not very confident in his opinion for acquittal, the average belief in the probability of guilt may remain high enough to satisfy the standard of beyond a reasonable doubt and so, a unanimous verdict of guilty should be reached. But not if the level of confidence satisfying the beyond-a-reasonable-doubt standard is very stringent. Then any amount of dissent regarding conviction leads on the equal weight view to acquittal. Continue reading "Does Belief Beyond a Reasonable Doubt Require Unanimity Among Jurors?"
Sep 4, 2018 Beth Tucker Longzetasec
Modified the tweet template after adding Yoast SEO and author Twitter handle with this post.
The post Modified Custom shortcode for wp to twitter appeared first on Jotwell: Zeta-Section. Continue reading "Modified Custom shortcode for wp to twitter"
Sep 4, 2018 Beth Tucker Longzetasec
This post update should show a smaller thumnbail author image. An alternate post update with minor tweak to the new filter. This is a new post for tweeting that uses a different profile image. Using a new filter to upload the author image (if it exists).
The post Wp to twitter test post appeared first on Jotwell: Zeta-Section. Continue reading "Wp to twitter test post"
Sep 4, 2018 Beth Tucker Longzetasec
This is the body of an updated tweet that uses a different profile image.
The post Testing image tweet appeared first on Jotwell: Zeta-Section. Continue reading "Testing image tweet"
Sep 4, 2018 Hoi KongInternational & Comparative Law
Referendums have been used to decide divisive constitutional questions in polities around the world. In some cases, the relevant divisions run deeply along ethnic and religious fault-lines and the polities have long histories of conflict. Joanne McEvoy’s 2018 article, Letting ‘The People(s)’ Decide: Peace Referendums and Power-Sharing Settlements, makes a significant contribution to the emerging literature on “peace referendums.” In what follows, I will highlight this contribution and argue that her text merits close attention from comparative constitutional law scholars.
At the outset of the article, McEvoy identifies her aims and underlines the high stakes involved when referendums are held in societies riven by conflict. She writes:
This article assesses the use of the referendum to legitimate power-sharing democracy in deeply divided societies. If we lack a full understanding of the dynamics of referendum design in transitions to power-sharing, minority groups may find themselves in a polity they perceive to be both illegitimate and in favour of the majority. Further intracommunal antagonism and the risk of recurring conflict could threaten a fragile political bargain reached by elites. Exploring the value of referendums is therefore important for the stability and legitimacy of peace-building. (P. 865.)
McEvoy situates her text in the extensive literature on power-sharing arrangements. Continue reading "Power to the People(s): Referendums in Deeply Divided Societies"
Sep 3, 2018 Ted SichelmanIntellectual Property Law
Daniel J. Hemel & Lisa Larrimore Ouellette,
Innovation Policy Pluralism, 128
Yale L. J. __ (forthcoming 2018), available at
SSRN.
It’s rare for two JOTWELL editors to choose the same article to review. When that happens, it’s surely a sign of an “instant classic.” So even if you’ve read Kevin Collins’s laudatory jot of Daniel J. Hemel and Lisa Larrimore Ouellette’s superb piece a few months ago, you should read this one, too. And, if you didn’t read that review, you should definitely read this one.
If double coverage weren’t enough, three years ago, my jot reviewed Hemel and Ouellette’s brilliant article, Beyond the Patents-Prizes Debate. Besides explaining the importance of considering the full panoply of tools to incentivize innovation—such as patents, prizes, grants, and tax credits—Hemel and Ouellette showed that these tools could be decoupled and refashioned to create effectively new, mutant-like rights with potentially superior effects than in their “pure” form.
In this follow-up article, Hemel and Ouellette insightfully discern the broad theoretical ramifications of their previous IP reconstructions. Because Kevin Collins’s jot lucidly summarizes the expanse of the article’s exposition, I focus on the article’s most salient insight—namely, that IP’s “incentive” function is separable from its “allocation” function. Specifically, the “incentive” function refers to the market-based financial reward provided to innovators for producing an innovation (and here I elide the distinction between R & D-based “inventions” and commercialized “innovations”). The “allocation” function concerns the payment of a proprietary price by consumers (and intermediaries) to access innovations covered by IP rights. Continue reading "Decoupling Intellectual Property’s Incentive and Allocation Functions"
