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"
Mar 13, 2025 Mark KendeConstitutional Law
Ran Hirschl,
Comparative Constitutional Law: Reflections on a Field Transformed in
Redefining Comparative Constitutional Law: Essays for Mark Tushnet (Madhav Khosla & Vicki C. Jackson eds.,2024), available at
SSRN (Jan. 15, 2024).
“Retired” Harvard Law professor Mark Tushnet is legendary for the quality and quantity of his scholarship. Earlier in his career, he was a founder of the revolutionary Critical Legal Studies movement. Then in the 1990’s, he became a pioneer, reinvigorating the field of comparative constitutional law. This important book contains numerous chapters related to Tushnet’s legacy. Although the whole book is worthwhile, I want to give special attention to law and political science professor Ran Hirschl’s spectacular chapter on Tushnet and the evolving field of comparative constitutional law, Comparative Constitutional Law: Reflections on a Field Transformed.
Hirschl initially mentions some of Tushnet’s books and articles on comparative constitutional law. One of Tushnet’s key books is Advanced Introduction to Comparative Constitutional Law. His 1999 Yale Law Journal article on the possibilities of comparative constitutional law, evaluating the different ways in which “comparing constitutional experience elsewhere,” if undertaken in a “cautious and careful” manner, might allow one to “sometimes gain insights into the appropriate interpretation of the U.S. Constitution,” was noteworthy both for its bravura intellectual style—the section on bricolage was especially interesting—and for its critical examination of future directions for the field. Continue reading "Mark Tushnet, Comparativism, and Global South Third Generation Human Rights"
Mar 12, 2025 Michael GreenJurisprudence
There is renewed interest in the categorization of fundamental legal relations offered by Wesley Newcomb Hohfeld. McBride’s article is about the two problem children among the Hohfeldian relations—the liberty and, especially, the no-claim. Although his article is technical, it has significant consequences concerning our understanding of the nature of permissions (legal and moral).
Before introducing his argument—and the fascinating larger debate within which it is situated—a Hohfeldian primer is needed. Here is the Hohfeldian table of legal relations with the disambiguating terms that many Hohfeld scholars now use in brackets: Continue reading "No-Claims"
Mar 11, 2025 Mathilde CohenInternational & Comparative Law
Do you teach comparative law? If so, rejoice—your job just got a lot easier and more engaging with the publication of Comparative Law: Introduction to a Critical Practice by Fernanda Nicola and Günter Frankenberg. And if you don’t teach it, here’s a perfect excuse to dive into comparative legal studies: this textbook covers a broad range of topics, from property and administrative law to contracts, torts, and family law.
What sets it apart is its bold, critical approach to traditional comparative methodologies. It doesn’t just compare legal systems; it challenges the very assumptions, biases, and power structures embedded in legal comparison. The volume critiques comparative law as a discipline while also celebrating its richness, presenting its histories, internal debates, and evolution through a multi-disciplinary lens that draws on anthropology, feminist theory, political science, postcolonial theory, and sociology. Continue reading "A Critical Critique of Comparative Law"
Mar 10, 2025 Myrisha LewisHealth Law
Professor Alice Abrokwa’s article, Too Stubborn to Care for: The Impacts of Discrimination on Patient Noncompliance, focuses on a rarely acknowledged source of bias in the healthcare system: medical records. Although this bias may not be easily visible to the public, medical records can significantly impact the medical care that individuals receive, as well as eligibility for government benefits and the size of medical malpractice awards.
Professor Abrokwa begins her article by concisely telling the history of Elijah McClain’s interactions with law enforcement and emergency medical personnel, where he was labeled a “non-compliant person” during the interactions that eventually led to his death. As part of this story, she provides a quote from the City of Aurora’s investigative reportand recommendations in the aftermath of Elijah McLain’s death: “[I]mplicit biases can lead medical professionals to perceive Black patients as noncompliant and more resistant to pain, which can impact decisions regarding care to the detriment of Black Patients.” From there, she briefly outlines other instances where the labeling of patients in healthcare settings as “noncompliant” had significant detrimental impacts on their healthcare. Continue reading "The Overlooked Harms of Inaccurate and Biased Medical Records"
Mar 7, 2025 Linda C. McClainFamily Law
In 1973, before the Supreme Court decided Roe v. Wade, two members of a group of clergy committed to helping women receive abortion care stated: “every woman must possess the freedom, guaranteed by the U.S. Constitution, to follow her religious conscience in the determination of whether she will or will not bear a child.” Religious supporters of abortion access also cited the Establishment Clause: states were adopting, in a religiously diverse nation, a religious view about when life begins and how to value fetal and maternal life. These pre-Roe examples, Elizabeth Sepper argues in Free Exercise of Abortion, are part of a long history of recognizing the religious dimensions of abortion decisions. A significant post-Roe example is the initial success, in federal district court, of a free exercise challenge to the Hyde Amendment, which excluded most abortions from Medicaid coverage while funding all other pregnancy-related expenses. After hearing extensive testimony by religious authorities about religious teachings on abortion, Judge Dooling framed a woman’s abortion decision, when “medically necessary to her health” and exercised “in conformity with religious belief and teaching,” as “conscientious,” and doubly protected under the Due Process Clause and the First Amendment. However, the U.S. Supreme Court, in upholding the Hyde Amendment in Harris v. MacRae, avoided reaching the Free Exercise argument and rejected plaintiffs’ Establishment Clause argument.
Despite this history, Sepper argues that in popular representation and in the political arena, religion and abortion are typically viewed in stark opposition, with “the religious position on abortion” assumed to be “pro-life” or “anti-choice.” (P. 179.) However, since the Supreme Court’s 2022 decision in Dobbs v. Jackson’s Women’s Health Organization returned the issue of abortion to “the people and their elected representatives,” appeals to conscience and religion to challenge abortion bans have become more visible. These claims about religious liberty, “for the first time in many decades,” center women “as the relevant religious and moral agents” and “make visible what we once knew and were made to forget”: “that we undertake religious decisions—to have children, form a family, and end a pregnancy—consistent with conscience and religious faith.” (P. 180.) Continue reading "Reclaiming Abortion as a Moral—and Religious—Decision"
Mar 6, 2025 Jedidiah KronckeLegal History
Inherent in historical work is recovering aspects of the past lost to contemporary awareness. In her new book, Arbitrating Empire: United States Expansion and the Transformation of International Law, Allison Powers recovers one such aspect that has been more than passively forgotten—it was actively erased. Her target is a series of state-to-state arbitral claims commissions central to American international law during the country’s rise as a global power. Here Arbitrating Empire revises understandings of early international arbitration as an instrument of “civilized” non-violent dispute resolution by exposing its function as a legal technology of imperial power. Powers’s intervention is a powerful and persuasive addition to the rapidly expanding literature on the evolution of the legal forms used to project American power abroad while denying accountability for its violence. The initial history of American international arbitration, she shows, was governed by the imperative “to secure territory, wealth, and political power across the globe while disavowing charges of colonial aggression.” (P. 7.)
Arbitrating Empire centers on five different claims commissions from 1870-1930 tasked with resolving thousands of claims for damages incident to U.S. imperial expansion. In seven well-ordered, richly detailed chapters, Powers examines claims stemming from the Mexican-American War, the U.S. bombardment of Samoa, the Spanish-American War, land expropriations in the Panama Canal Zone, and the Mexican Revolution. Continue reading "Recovering an Erased Era of Early American Imperial Legal Experimentation"
Mar 5, 2025 Robin J. EffronCourts Law
The access-to-justice movement—comprised of lawyers, activists, and scholars—has traditionally focused on ensuring people have access to legal resources, tribunals, and lawyers to pursue remedies or mount defenses. As Kathryne Young says in Getting Help, the conventional approach asks: “How do we, as lawyers, serve those seeking help? How do we provide more legal services to lawyerless parties?” But this framework rests on two problematic assumptions: that people recognize their problems as legal in nature, and that the primary barrier to justice is a lack of affordable legal services. Young’s research exposes the error in both assumptions.
To explore this gap, Young conducted an empirical study using a nationally representative survey, gathering quantitative and qualitative data about how Americans approach complex problems with legal implications. Her findings reveal significant variations in how different demographics conceptualize legal problems, whom they trust, and what kinds of assistance they find valuable. These variations correlate with factors including race, gender, political affiliation, and religiosity, painting a nuanced picture of help-seeking behavior in legal contexts. Continue reading "From “Information” to “Advice” in the Provision of Legal Services"
Mar 4, 2025 Mary FanCriminal Law
Andrew Guthrie Ferguson,
Generative Suspicion and the Risks of AI-Assisted Police Reports (July 17, 2024), available at
SSRN.
Humans do not enjoy the vital drudgery of paperwork, including writing reports. Increasingly, people are turning to machine learning and artificial intelligence-powered products to produce reports. Students do it. Scientists do it. Doctors might do it. And police are starting to do it too, thanks to technology companies like Axon. One of the most prescient scholars of policing and technology, Andrew Guthrie Ferguson’s recent paper, Generative Suspicion and the Risks of AI-Assisted Police Reports, offers a fascinating overview of AI-generated police reports and the potential impact on criminal practice.
Police reports might seem like dull bureaucratic minutiae. But a police report can shape a person’s fate, from whether and what charges get filed, to the plea deal that is offered, and the sentence a defendant receives. One of the first items in a criminal case for a prosecutor or defense attorney to review, the police report shapes and constrains the narrative. The report defines victims and perpetrators, provides potential impeachment material for trial, and impacts the availability of defenses. The transformation of how police reports are generated is thus important, with potential systemic impacts. Continue reading "AI-Generated Police Reports"
Mar 3, 2025 Stacy-Ann ElvyTechnology Law
Increasingly, attorneys use various generative artificial intelligence (AI) tools in the practice of law. These tools purport to provide targeted answers to specific legal questions and they can be used to facilitate review and drafting of legal documents as well as aid in due diligence assignments, along with various other legal tasks. In response to the rapid rise of generative AI tools in the legal profession, state bar associations have published recommendations on the issue. For instance, in 2023, the California State Bar Association issued practical guidance to attorneys on generative AI in the legal profession. Florida followed suit by issuing an advisory opinion on the topic. Similarly, the American Bar Associationalso released a formal opinion on generative AI tools in 2024.
In her article, Rule 11 is No Match for Generative AI, Professor Jessica R. Gunder offers an impressive contribution to both the law-and-technology and civil procedure fields by exposing the limits of Federal Rule of Civil Procedure 11 in addressing “fictitious cases and false statements of law” that arise from attorneys’ use of generative AI. Gunder convincingly argues that although courts have used Rule 11 to sanction attorneys who fail to conduct sufficient legal research, Rule 11 cannot adequately regulate this behavior in the generative AI context. She goes on to contend that Rule 11’s inadequacies have likely led a growing number of courts to issue standing orders to directly address attorneys’ misuse of generative AI in legal proceedings. Continue reading "Federal Civil Litigation in the Age of Generative AI"
