Mar 27, 2025 John C.P. GoldbergTorts
Matteo Godi,
Section 1983: A Strict Liability Statutory Tort, 113
Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (Aug. 13, 2024).
The federal civil rights law known as 42 U.S.C. § 1983 has garnered vast attention from the legal academy, including recent wide-ranging discussions of its qualified immunity defense. In his interesting article, Section 1983: A Strict Liability Statutory Tort, Matteo Godi addresses a more basic question, namely: what are the elements of a Section 1983 claim? Intriguingly, he maintains that the statute is best interpreted to hold officials strictly liable.
Section 1983 empowers individuals to seek redress from state officials (and certain others) for violating their federal constitutional rights. Under prevailing Supreme Court precedent, the statute does not specify a uniform liability standard. Instead, different standards apply depending on the right allegedly violated. For example, to prove an Equal Protection violation, the plaintiff must demonstrate intentional discrimination. Meanwhile, an inmate alleging an Eighth Amendment violation might have to prove maliciousness (for claims of excessive force) or deliberate indifference (for claims of unsafe conditions of confinement). Notably, in all applications the statute is understood to require conduct falling below some standard of conduct, i.e., legal fault.
According to Godi, this reading of the statute is fundamentally mistaken. As a matter of sound interpretation and normative theory, he claims, Section 1983 should be read to impose a single rule of strict liability. Thus, on his account, an inmate denied adequate medical treatment should be able to establish a constitutional tort simply by proving harm attributable to the denial, irrespective of whether the harm was intentionally or carelessly inflicted. Continue reading "The Rights and Wrongs of Constitutional Torts"
Mar 26, 2025 Tal ZarskyTechnology Law
There seems to be a budding consensus among tech pundits and stakeholders: The EU has solidified its role as a leader in one ICT sector—regulation. EU regulation is a growing industry in itself. However, such regulation may not necessarily be beneficial for business and technological progress. Professor Bradford, a leading expert on EU law and its international influence, agrees with the first two statements, but not necessarily with the third. She challenges (and ultimately rejects) the intuitive argument that excessive ICT regulation is responsible for the EU’s innovation lag in this sector. In making her claim, she maps out the many impediments to ICT innovation in Europe, identifying numerous factors beyond the content of regulation – such as its complexity, as well as underdeveloped capital markets, unfitting insolvency laws and the inability to attract and retain talent. Or, to paraphrase J.F.K.: Bradford explains that the EU’s ICT innovation failure has many fathers. Bradford thus argues that the link between regulation and the lack of innovation is weak and that there is no real lesson here for U.S. regulators and lawmakers contemplating tech-related policy.
To illustrate the weak connection between innovation and regulation, Bradford begins the article by outlining the U.S.’s centrality in the ICT sector. She highlights the dominant brands like Google, Meta, Microsoft, Amazon, and Apple that shape contemporary life and discourse, as well as the extraordinary wealth these firms have amassed. The article then examines the U.S.’s tech-friendly regulatory environment, particularly the relative immunity provided by Section 230 of the Communications Decency Act (as part of broader notion of promoting free speech) and the absence of comprehensive federal privacy legislation. Continue reading "EU ICT: A Tale of Regulation, Innovation (?), Causation (?) and Frustration (!)"
Mar 25, 2025 Adam ThimmeschTax Law
The immense wealth being accumulated by U.S. technology companies and their owners has been apparent for some time, and events during and since the last presidential election have put this reality firmly in the spotlight. Wealth is power, and innovative data practices have allowed for a great concentration of that power among a few key companies and individuals. In Valuing Social Data, Amanda Parsons and Salomé Viljoen provide a timely analysis of this new market reality and help us to think about how our legal systems might better respond. Their article is timely and incredibly useful both for those new to thinking about the data economy and for those looking for new frameworks to address wealth and power disparities in modern society.
Parsons and Viljoen’s article is situated within a broader literature addressing the challenges created by the collection, use, and sale of data in today’s world. Companies operating in this new economy have been able to obtain powerful market positions both through their innovation and by operating outside the scope of existing regulatory regimes—tax systems included. Parsons and Viljoen explain that issue and provide useful terms and taxonomies to better understand and discuss potential responses. Continue reading "Data, Value, and Power in the Digital Age"
Mar 24, 2025 William SmileyLegal History
The last two decades have seen a boom in scholarship on law and empire—a boom that owes much to the work of Lauren Benton, through her books Law and Colonial Cultures (2001) and Search for Sovereignty (2009). Now Benton broadens her lens to look at the longue durée history of law and war across, and even beyond, European empires, in They Called It Peace. Her book is a wonderful survey of the interplay of legal ideas and violence in European empires from the early modern era to the present. Benton focuses our attention on “small wars,” or “violence at the threshold of war and peace” (P. 8), which was “chronic, and repeating” across the world (P. 4). Rather than exceptions to the rule, she argues, small wars were the rule. And while small in scale, they could be both brutal and decisive, even leading to massacres and extermination.
Benton draws on examples from multiple empires—French, British, Portuguese, and Spanish—and different modes of conquest, both seaborne and land-based. We go from the Indian Ocean to Uruguay to the Pacific Northwest to Polynesia to Mexico to the Coromandel coast to Reconquista Spain to Jamaica. And we travel from the early modern period to the 19th century while also entering into conversation with modern dilemmas of violence—questions of “force short of war” like the US War on Terror, or “special military operations” like Russia’s invasion of Ukraine. Continue reading "Small Wars, Big Law"
Mar 21, 2025 Suja A. ThomasCourts Law
I feel like I am late to the party. Years ago, in 2017, Tonja Jacobi and Dylan Schweers wrote an influential article showing female Supreme Court Justices were disproportionately interrupted by male Justices and advocates. Fortunately, because Professor Jacobi sent me an old school hard copy of her newest article, I am now aware of her previous work and her new article co-authored with Matthew Sag. This new piece examines how, if at all, the atmosphere has changed at the Supreme Court. The short answer is some is the same. Some is different.
In the first article, Professor Jacobi and Schweers discovered a historical increase in interruptions since the 1990s and also that there was a gendered aspect to interruptions. Between 2004 and 2015, female Supreme Court Justices were interrupted up to three times as much as their male colleagues. After this first study was released, the Supreme Court actually made some change to its oral argument structure. Among other changes, during oral argument, each Justice has dedicated time to engage with advocates. Continue reading "Increasing Interventions by Chief Justice Roberts to Address Increasing Interruptions in Oral Argument"
Mar 20, 2025 Shelley Ross SaxerProperty
Jessica L. Asbridge,
Fines, Forfeitures, and Federalism, 111
Va. L. Rev. __ (forthcoming, 2025), available at
SSRN (Feb. 29, 2024).
Government has abused its authority with respect to discretionary fines and forfeitures that serve as a significant source of revenue for federal, state, and local governments and have a disproportionate impact on poor and disadvantaged communities. Similarly, local government abuses have occurred in land use regulation when the government seeks to obtain private property in exchange for granting a permit by requiring either a physical or monetary exaction. Professor Jessica Asbridge’s new article, Fines, Forfeitures, and Federalism, brings together these two seemingly unrelated areas of potential government abuse—exactions and discretionary fines and forfeitures.
The exactions doctrine allows the government to condition its approval of a permit it could otherwise deny so long as there is “nexus” and “rough proportionality” between the property the government demands in exchange for the permit and the adverse effects caused by the applicant’s project proposal. This higher level of scrutiny applied to exactions protects property developers against abusive government officials acting to extort as much revenue as possible to devote to community infrastructure. Professor Asbridge’s work suggests that heightened scrutiny is appropriate for both exactions requiring payments to the government in land use regulation in exchange for permission to develop and discretionary fines and forfeitures for state and local code violations. Continue reading "Penalties, Payments, and Power"
Mar 19, 2025 Ann E. TweedyEquality
In Flattening Breast Cancer by Removing the Breasts: Protecting a Woman’s Right to Choose Reconstruction of an Aesthetic Flat Chest After a Mastectomy, Amelia Landenberger centers the experiences of women who carry a genetic predisposition for breast cancer (namely the BRCA1 gene). The article argues that these women should have the option of aesthetic flat chest reconstruction, along with other breast reconstruction options. To vindicate this option as a legal right, Landenberger argues for a broad interpretation of the Women’s Health and Cancer Rights Act of 1998 (WHCRA). The WHCRA is an under-researched federal statute that prevents insurance companies from denying coverage for breast reconstruction after mastectomies. Landenberger maintains it should be read to require coverage for aesthetic flat chest reconstruction when preferred by a patient. Landeberger’s article contributes to the sphere of equality scholarship by centering the experiences of a little-understood group—those who carry the BRAC1 gene—and by bringing to light a little-understood problem, namely difficulty accessing aesthetic flat chest reconstruction.
Landenberger’s article is illuminating in several important respects. First, Landenberger centers the experiences of high-risk women, who are termed “previvors,” for a practical reason, namely because, when they choose mastectomies as a preventative measure, such women have a full-range of options available for reconstruction (whereas the reconstruction options of some breast cancer patients may be more limited). (Pp. 1201-02.) Nonetheless, this approach is a powerful one. Landenberger explains the astronomical risks that these previvors have of becoming afflicted with breast cancer—a 55% to 72% chance, and she further describes the liminal space that such women occupy—the space between sickness and wellness. She also relates that, for many such women, breast cancer is “not merely a hypothetical future,” but it is also “a part of their past,” as many have lost mothers, grandmothers, and/or aunts to breast cancer. (P. 1204.) Continue reading "Supporting the Full Suite of Reconstruction Options Under the Women’s Health and Cancer Rights Act of 1998"
Mar 18, 2025 Aila HossLexNative Peoples Law
Nothing ruins my appetite for research and commentary on elections and politicians more than a presidential election. Civic duty and guilt keep me engaged, albeit begrudgingly. So, when my initial intrigue in picking up Professor Elizabeth Reese’s recent article, Tribal Representation, and Assimilative Colonialism, turned into captivation, I knew this piece was something I had to share.
Tribes have been exercising their authority as sovereign nations since time immemorial. Tribal sovereignty is an inherent authority that originates from a social contract between a government and its citizens. It predates the United States and colonial governments. Although colonization and genocide diminished Indigenous populations and impeded Tribal governments, Tribes persisted. Today, Tribes occupy a unique status in the United States. They maintain their nationhood while being part of the American family of governments—federal, state, local, and territorial. Continue reading "Tribal Representation in American Democracy"
Mar 17, 2025 Carole SilverLegal Profession
International students have been a significant presence on U.S. campuses and in U.S. law schools for decades. They have accounted for 5% or more of overall enrollment in U.S. higher education each year since 2015 (with the exception of the 1st year of the pandemic) and 3% or more since 1992. While trends in the law school context are difficult to discern (more about this below), it is clear that international students have been an important element in U.S. legal education since at least the late-1990s, when schools began to increase the number and size of degree programs aimed at international students. Between 2012 and 2021, for example, nearly 60,000 unique individuals obtained a visa to study in an ABA-approved law school. It is not clear what impact the second Trump administration will have on this dynamic, particularly because of visa delays and uncertainty about OPT, but the rhetoric against international individuals in the first Trump administration did not substantially dampen mobility into the U.S. for law school until the pandemic.
While law schools and universities have grown reliant on the contributions of international students to the intellectual life of their institutions, to their financial well-being and to their global reputations, there is very little understanding of the identities and experiences of these students, including where they’re from, who pays for their education, their bar exam aspirations (much less results) and even the number of international students studying in particular law schools.
Kathryn Hendley and Alexander Straka aim to shed light on these issues in their new article, International Students from the Perspective of U.S. Law Schools. The article analyzes data they collected from 81 law schools during the spring of 2019 (that is, just as law schools and universities were shifting to online classes because of COVID) by surveying the administrators managing international students. (P. 61.) Their focus is on international students enrolled in LLM and other non-JD degree programs as well as non-degree students such as visitors. (P. 68.) The LLM remains the degree program that attracts the largest share of international students. Hendley and Straka found that “[w]ell over half [of the responding law schools] told us that…[LLM programs] accounted for 80 percent or more of their foreign students.” Continue reading "Who’s Here? How U.S. Law Schools Understand Their International Students"
Mar 14, 2025 Lisa Larrimore OuelletteIntellectual Property Law
Doni Bloomfield,
Intellectual Antiproperty: Export Controls and the Transformation of IP (Jan. 13, 2025), available at
SSRN.
Intellectual property laws are government policies to encourage the creation and dissemination of information. But there are also laws allowing the U.S. government to suppress IP-protected technical knowledge, and Doni Bloomfield’s insightful article argues that IP scholars should pay more attention to these forms of “intellectual antiproperty.” Just as intellectual property laws allow innovators to capture some positive externalities of their efforts, Bloomfield argues that intellectual antiproperty laws address some of the negative externalities—at least as they relate to national security. And with increasing global competition between the U.S. and Chinese governments, these laws are likely to grow in importance.
Bloomfield focuses on two legal channels of information suppression, which cover information protected under trade secret law and patent law. First, U.S. export-control laws allow the State and Commerce Departments to restrict transfers of thousands of categories of proprietary U.S. technologies. For example, these agencies can bar a U.S. firm from sharing covered information with non-U.S. employees within the United States. The U.S. government has even claimed authority over extraterritorial sales involving U.S. know-how, such as fining an Irish firm for selling disk drives to China. Second, the Invention Secrecy Act allows the U.S. Patent and Trademark Office to impose secrecy orders on patent applications that pose a national-security risk, including to restrict use to classified contexts or to bar disclosure altogether. Continue reading "Government Suppression of IP"
