Did H.L.A. Hart, of All People, Neglect Power-Conferring Laws?

Matthew H. Kramer, Hart on Legal Powers as Legal Competences, 19 Univ. of Cambridge Fac. of L. Res. J. __ (2021), available at SSRN.

As Professor Matthew H. Kramer states at the beginning of his rigorous, insightful analysis, Hart on Legal Powers as Legal Competences, “[a]s virtually everyone among the ranks of present-day Anglophone legal philosophers is aware, one of the chief complaints about Austin by Hart was that the former theorist had disregarded and obscured the major role of power-conferring norms in the structures and operations of legal systems.” (P. 1.) Indeed, Austin’s preoccupation with duty-imposing laws contrasted with his neglect of laws that confer powers, and H.L.A. Hart started his own quest for an adequate concept of law by rejecting his predecessor’s mistake. But what if Hart himself was guilty of a similar sin, at least to some extent?

Before taking up on that challenge, Kramer goes on to explore in some detail (1) Hart’s critique of Austin — in his distinction between power-conferring and duty-imposing laws — and (2) possible rejoinders from Austin defenders. Continue reading "Did H.L.A. Hart, of All People, Neglect Power-Conferring Laws?"

A Positive Immigration Agenda for Racial Justice

Kevin Johnson, Bringing Racial Justice to Immigration Law, 116 Nw. U.L. Rev. 1 (2021).

Since the summer of 2020, Americans have been having more explicit discussions about racial hierarchy in the United States and the role of law enforcement in maintaining such hierarchy. Kevin Johnson’s forthcoming essay, Bringing Racial Justice to Immigration Law, brings that conversation to immigration law. Johnson argues that Congress, but ultimately the Supreme Court, needs to explicitly address the racial animus that has motivated the structure of immigration law in the United States. Through an examination of immigration history, the emergence of a robust immigrant rights movement, and the significant backlash from the Trump Administration, Johnson demonstrates that a positive agenda for immigration reform is required in order for the country to move towards a more just immigration system, rather than simply reverting to the pre-Trump immigration system, which was not a model for justice.

Johnson’s essay begins by mapping the racially discriminatory foundations of immigration law and the minimal role that courts have played in acknowledging and remedying such discrimination. The essay then discusses the emergence of the robust immigrant rights movement despite the fact that non-citizens are not eligible to vote. A response to the growth of the immigrant rights movement was a backlash by the Trump Administration. The next section of the essay explores the efforts undertaken by the Trump Administration to “maintain and reinforce the racial caste quality of the immigration system.” (P. 3.) The essay ends with an appreciation for the immigrant rights movement, and the claim that the goals sought by the movement will only be “meaningful, lasting, and truly transformative” if the Supreme Court jurisprudence shifts to require robust constitutional review of immigration laws and “allows the courts to serve as a check on racial animus.” (P. 3.) Continue reading "A Positive Immigration Agenda for Racial Justice"

PL on the DL: Domestic Violence Courts’ “Quiet Partnership” with Nonlawyer Advocates

Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan and Alyx Mark, Judges and the Deregulation of the Lawyer’s Monopoly, 89 Fordham L. Rev. 1315 (2021).

State supreme courts claim the exclusive, inherent authority to define and regulate the “practice of law.” Based on this authority, courts have enjoined as the unauthorized practice of law (UPL) all manner of potentially helpful legal assistance by nonlawyers, including counseling, advising, and assistance with documents, as well as representation in court. When it suits them, however, it turns out that trial courts accept extensive nonlawyer assistance behind the scenes, including nonlawyer counseling of clients, preparation of pleadings, and discrete courtside assistance. Courts may even encourage and institutionalize the role of nonlawyer advocates through designated workspace and workflows. But they like to keep it on the down low.

Of course, it is not the “unauthorized” practice of law if courts allow it. And courts’ claims to regulatory authority are strongest regarding who appears before them. But what are the implications of an unacknowledged nonlawyer assistance regime? This is the question posed by Jessica Steinberg and her comadres in their study of domestic violence courts’ “quiet partnership” with a “shadow network” of nonlawyer advocates “to substitute for the role counsel has traditionally played.” (P. 1316.) Continue reading "PL on the DL: Domestic Violence Courts’ “Quiet Partnership” with Nonlawyer Advocates"

The ‘Problem’ of Numbers

Gloria McCahon Whiting, Race, Slavery, and the Problem of Numbers in Early New England: A View from Probate Court, 77 Wm & Mary Q., 3d ser., 405 (2020).

In Race, Slavery, and the Problem of Numbers in Early New England: A View from Probate Court, Gloria McCahon Whiting makes significant contributions to the study of slavery in seventeenth- and eighteenth-century New England. She offers new insights into who made up that labor force, as well as into scholarly debates regarding the utility of quantitative analysis for historians of slavery.

Whiting examines volumes upon volumes of seventeenth- and eighteenth-century probate sources to better understand who lived and labored in Suffolk County, Massachusetts. In this, “the wealthiest and most populous county in New England,” Whiting argues that not only were indentured servants “supplanted early on by a near-complete reliance on African slavery,” but also that local Native populations “never provided a significant source of bound labor in the area.” (P. 407.) The first part of her argument is not one with which most scholars would take issue. Her assertion that local Native populations never made up a significant proportion of the enslaved labor force in the region, however, is more surprising. This argument challenges the scholarship of historians such as Margaret Newell, Wendy Warren, Jared Hardesty, and Linford Fisher, who have argued that large numbers of enslaved Natives played an important role in New England’s labor force well into the eighteenth century. Continue reading "The ‘Problem’ of Numbers"

Dirty Hands, Dead Patent?

Sean Seymore, Unclean Patents, 102 B.U. L. Rev. __ (forthcoming, 2022), available at SSRN.

The 2018 Federal Circuit Gilead Sciences v. Merck & Co.1 decision is one of the rare patent cases in which a court has applied the unclean hands doctrine to withhold a remedy for infringement. Sean Seymore used this case as a launching point for a deeper and more expansive reconception of the role of the unclean hands doctrine in patent law. He suggests that a range of pre-issuance malfeasance by the patentee, not just inequitable conduct before the USPTO, should preclude relief for the offending plaintiff against all defendants.

The doctrine of unclean hands is best known in patent law as the origin of the inequitable conduct defense, which renders patents obtained from the USPTO through materially deceptive behavior permanently unenforceable against anyone. Unclean hands, however, is both broader and narrower than inequitable conduct. It is not limited to misconduct in patent prosecution, but it only prevents the patentee from enforcing the patent against the particular defendant in the action involving the misconduct; other defendants are fair game. Continue reading "Dirty Hands, Dead Patent?"

Rethinking Responsibility for Refugees

T. Alexander Aleinikoff & Leah Zamore, Arc of Protection: Toward a New International Refugee Regime (2019).

T. Alexander Aleinikoff and Leah Zamore’s compact-but-ambitious new book, The Arc of Protection: Toward a New International Refugee Regime, seeks to transform the international refugee system by proposing a set of legal reforms centered on redistributing responsibility northward, increasing mobility, and better enforcing rights. The authors’ reform vision was developed through decades of research and practice experience.

The legal-political discourse on refugees in the United States focuses largely on disputes over quantities and definitions. How many refugees should be admitted each year: 50,000, 125,000, or (as in fiscal year 2018) 62? Should gang- and domestic-violence be considered persecution and thus valid grounds for asylum? The ways in which these issues are resolved can mean life or death for many displaced people. But even granting all of the reforms that domestic refugee advocates seek would protect only a small fraction of the world’s forcibly displaced. The great majority of the approximately 27 million refugees would still be trapped in poverty in the Global South – effectively confined to underfunded border camps or to urban areas – in either case, largely blocked from the formal economy and from effective redress of rights violations. Continue reading "Rethinking Responsibility for Refugees"

Health Equity Governance

Wendy Netter Epstein, A Legal Paradigm for the Health Inequity Crisis (Feb. 17, 2021), available on SSRN.

“It Shouldn’t Take a Pandemic,” read the title of an essay published several months into the COVID-19 pandemic. The bioethicist authors argued that, by focusing on moral issues relating to patient care, bioethics had “gone too small” and should be paying more attention to broader moral issues of injustice. Of course, anyone paying the slightest attention to the news over the past fifteen months has witnessed to how the pandemic has laid bare the greater suffering and death endured by people who are Black, Brown, Indigenous, poor, or disabled. The essayists point out that the inequity of poorer health and unevenly borne suffering is not new. Avoidable, and thus unjust, disparities in health, health care, and social determinants of health have been part of the health landscape in the U.S. seemingly forever, and efforts over the past decades have largely failed to dent them. Wendy Netter Epstein’s new article, A Legal Paradigm for the Health Inequity Crisis, argues that governance challenges offer one explanation for the lack of meaningful progress and suggests an approach to addressing those challenges. And she turns to an improbable chapter in health law’s history for her model: HIPAA Administrative Simplification.

By squarely focusing on how challenges in addressing health inequity are partly a governance problem, Epstein’s article makes a valuable contribution. It helps explain why health inequity has proven so intractable—it is embedded in a fragmented system where no single actor has “both adequate incentive and adequate wherewithal to create progress.” Problems of churn among various payers, the compartmentalization of government actors, and siloed funding for health and other issues are all part of this fragmentation. Currently, nothing supports, much less compels, these fragmented entities to undertake collective planning and action in pursuit of health equity. Continue reading "Health Equity Governance"

Bringing the Nineteenth Amendment Home

Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J.F. 450 (2020).

The Nineteenth Amendment promised to transform the Constitution as it did the content of equal citizenship. It has, however, done neither. Instead, as Reva Siegel explains in The Nineteenth Amendment and the Democratization of the Family, we narrowly understand “the Nineteenth Amendment as a rule prohibiting government from discriminating on the basis of sex in determining who can vote.” (P. 451.) This, Siegel compellingly argues, is an impoverishment of what the Nineteenth Amendment was meant to accomplish, and a depletion in how we define equality. The Nineteenth Amendment wrought change to the Constitution “not simply by adding voters, but by democratizing the family so that women could represent themselves in government.” (P. 451.) The quest for the vote, according to Siegel, was fundamentally a quest to restructure women’s role within the family.

It may come as no surprise that women’s participation in the polity – by eliminating the concept of virtual representation by the husband and head of the household – directly challenged traditional family roles. But lost to history is how the right to vote further implicated structural questions about voluntary motherhood, equal remuneration, and the valuation of work performed both within and outside of the household. We no longer recognize access to contraceptives, or joint property in marriage, as essential to the franchise. Nor do we incorporate the family into the constitutional framework of the Nineteenth Amendment. As such, “the history this Essay explores,” Siegel writes, “has played little role in shaping our law.” (P. 454.) Siegel addresses this erasure by reconstructing the debate over equal citizenship that the suffrage campaign began and examining the various ways recovering this forgotten history can impact our interpretation of the Constitution. In revealing exactly how the Nineteenth Amendment failed to resolve the problem of women’s access to full citizenship, Siegel shows us that it still could. Continue reading "Bringing the Nineteenth Amendment Home"

The Everyday Struggles of Disability Law

Elizabeth F. Emens, Disability Admin: The Invisible Costs of Being Disabled 105 Minn. L. Rev. 2329 (2021).

Recently, researchers and advocates have brought to light the extra financial costs of living with disabilities, or as some have called it the “crip tax.” They showcase the expenditures disabled people make because they have a disability, which are usually invested in necessities such as assistive technology, household accessibility renovation, service animal maintenance, or the purchase of special food due to dietary restrictions. These expenses are particularly onerous as this population has historically faced major barriers to entering and staying in the workforce, in addition to earning lower wages on average compared to their non-disabled peers.

In her excellent new article, Disability Admin: The Invisible Costs of Being Disabled, Liz Emens makes an important contribution to this discourse about the “taxes” imposed on individuals with disabilities. Emens exposes and conceptualizes other significant, yet non-financial, costs imposed on individuals with disabilities as they move through the non-disabled world. These costs are borne out of the incredible amount of time and mental energy people with disabilities exert on a daily basis while engaging with mundane tasks (like repeatedly explaining their needs to strangers, filling endless amount of forms, or constantly rearranging their routes so that they would be accessible), red tape, and the advocacy needed to exercise their rights. This is a type of labor which Emens calls “disability admin,” and is an extension of her work on “life admin.” Continue reading "The Everyday Struggles of Disability Law"

Law Schools and the Carceral State

Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631 (2020).

About ten years ago, I was teaching substantive criminal law, and I had a mini-revelation. When it comes to mass incarceration, I was part of the problem. Literally hundreds of lawyers had passed through my criminal law class by then. Some of them were prosecutors, and they were (and are) participating in the project of mass incarceration, adding bodies to the prisons and jails of this country, one person at a time. They are generally smart, decent and thoughtful people, trying to do justice in the context of particular cases in front of them, but they are doing so within a system that is not actually designed to deliver just outcomes. In so doing, they are helping to perpetuate that system. Reflecting on my own role, I had the distinct sense that I had not done enough to provide them with the critical tools they would need to understand and grapple with the realities of their jobs. I was perpetuating that system, too.

Since that time, I have engaged in a painstaking, incremental process of redesigning my substantive criminal law class. The process is still ongoing. Alice Ristroph’s article The Curriculum of the Carceral State, which is both an intellectual history and a practical guide, offers important guidance for me, and for others engaged in this reconstruction process. Continue reading "Law Schools and the Carceral State"

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