Nov 22, 2024 Marin K. LevyCourts Law
Rachel Bayefsky,
Judicial Institutionalism, 109
Cornell L. Rev. __ (forthcoming 2024), available at
SSRN (Feb. 12, 2024).
For much of his tenure as Chief Justice, John G. Roberts has been described as an “institutionalist.” It has been so common to see the word associated with the Chief as to almost be his epithet. (Homer gave us “the man of twists and turns, Odysseus” and the modern Court gave us “the institutionalist, John Roberts.”) But October Term 2023 has prompted a discussion of whether the label still fits. And beyond that, we may wonder if there are any others at One First Street (see, e.g., Justice Elena Kagan) to whom the descriptor applies.
But before we can engage in a meaningful conversation about whether any members of the current Court are institutionalists, we must address what we mean in using the term. We might share a general sense that the word denotes taking account of the interests of one’s court when deciding a case—but what interests, exactly? And should we be for institutionalism or against it? Or, to put a finer point on it, when should institutional considerations (however defined) eclipse one’s own independent judgment of how a case should be decided? Enter Rachel Bayefsky’s forthcoming article—Judicial Institutionalism—at just the right moment. Continue reading "(In Defense of) Judicial Institutionalism"
Nov 21, 2024 Michael Froomkinzetasec
Not John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).
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Why do we use it? It is a long established fact that a reader will be distracted by the readable content of a page when looking at its layout. The point of using Lorem Ipsum is that it has a more-or-less normal distribution of letters, as opposed to using ‘Content here, content here’, making it look like readable English. Many desktop publishing packages and web page editors now use Lorem Ipsum as their default model text, and a search for ‘lorem ipsum’ will uncover many web sites still in their infancy. Various versions have evolved over the years, sometimes by accident, sometimes on purpose (injected humour and the like). Continue reading "3rd FWP Test–After Upgrade to WP 6.7.1"
Nov 21, 2024 Jessica Lind MantelHealth Law
Trust between patients and providers, and in the healthcare system at large, is essential for effective care delivery and positive health outcomes. Yet today’s complex healthcare landscape poses significant challenges to cultivating and maintaining this trust. In her thought-provoking essay Building Trust in Health Care Through Regulation and Payment Systems, Professor Katrice Bridges Copeland offers an insightful examination of the government’s crucial role in building and maintaining trust through its dual roles of regulator-enforcer and participant-payer.
Copeland explores the intricate interplay between trust and regulation, enforcement, and payment policies, demonstrating how government actions profoundly shape trust in healthcare. For instance, the ongoing shift towards value-based payment (VBP) models promises to revolutionize healthcare delivery and could be a tool to increase trust as it moves providers away from being rewarded for quantity over quality. But it also introduces new complexities in maintaining trust, particularly as it might incentivize providers to do things like improperly manipulate quality data to maximize compensation. Copeland makes a persuasive case for modernizing the healthcare fraud and abuse laws to address the unique risks posed by VBP and ensure patient trust in the new healthcare landscape. Continue reading "Building Trust: Reforming Fraud Laws for a Changing Healthcare System"
Nov 20, 2024 Aníbal Rosario-LebrónFamily Law
Nila Bala,
Parent-Child Privilege as Resistance, ___
B.C. L. Rev. ___ (forthcoming), available at
SSRN (Feb. 2, 2024).
The Rules of Evidence have been increasingly criticized for serving as a tool to maintain patriarchy and White supremacy. Scholars have shown how rules such as relevance, excited utterance, character for untruthfulness, rape shield, or credibility discounting promote gender oppression. Similarly, they have uncovered how unregulated evidence, character evidence, and prior convictions have contributed to the carceral state and racial and economic inequality. Recently, however, two articles have come out advocating that instead of abolishing or reforming rules, we adopt new ones, specifically a new privilege, in the realms of pregnancy termination (Aziz Z. Huq & Rebecca Wexler) and children’s rights (Nila Bala).
Huq and Wexler advocate for a privilege to shield abortion-relevant data from “warrants, subpoenas, court orders, and judicial proceedings” to counteract the elimination of a federal abortion right after Dobbs. Bala goes even further, arguing for creating a testimonial and confidential child-parent privilege including digital and written communications not only to protect minors and parents against gender-affirming care and abortion criminal prosecutions but also in any other criminal, juvenile, or civil context. In addition to its broader application, Bala’s proposal struck me the most because her justification for creating the rule rests on a privileging resistance framework. In The History of Sexuality, Foucault observed that “[w]here there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power.” Bala’s forthcoming article greatly exemplifies this axiom. Continue reading "Privileging Resistance"
Nov 19, 2024 Michael Froomkinzetasec
Lorem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the industry’s standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only five centuries, but also the leap into electronic typesetting, remaining essentially unchanged. It was popularised in the 1960s with the release of Letraset sheets containing Lorem Ipsum passages, and more recently with desktop publishing software like Aldus PageMaker including versions of Lorem Ipsum.
Why do we use it? It is a long established fact that a reader will be distracted by the readable content of a page when looking at its layout. The point of using Lorem Ipsum is that it has a more-or-less normal distribution of letters, as opposed to using ‘Content here, content here’, making it look like readable English. Many desktop publishing packages and web page editors now use Lorem Ipsum as their default model text, and a search for ‘lorem ipsum’ will uncover many web sites still in their infancy. Various versions have evolved over the years, sometimes by accident, sometimes on purpose (injected humour and the like). Continue reading "2nd FWP Test 1/19/24 — After WP Upgrade"
Nov 19, 2024 Michael Froomkinzetasec
Lorem Ipsum is simply dummy text of the printing and typesetting industry. Lorem Ipsum has been the industry’s standard dummy text ever since the 1500s, when an unknown printer took a galley of type and scrambled it to make a type specimen book. It has survived not only five centuries, but also the leap into electronic typesetting, remaining essentially unchanged. It was popularised in the 1960s with the release of Letraset sheets containing Lorem Ipsum passages, and more recently with desktop publishing software like Aldus PageMaker including versions of Lorem Ipsum.
Why do we use it? It is a long established fact that a reader will be distracted by the readable content of a page when looking at its layout. The point of using Lorem Ipsum is that it has a more-or-less normal distribution of letters, as opposed to using ‘Content here, content here’, making it look like readable English. Many desktop publishing packages and web page editors now use Lorem Ipsum as their default model text, and a search for ‘lorem ipsum’ will uncover many web sites still in their infancy. Various versions have evolved over the years, sometimes by accident, sometimes on purpose (injected humour and the like). Continue reading "FWP Test Nov. 19, 2024"
Nov 19, 2024 Jessica M. EaglinCriminal Law
It is easy to privilege certain kinds of “doing” in law. From constitutional law and the courts to statutory mandates and the legislature, these are highly visible examples of law in action. As such, their effect and import are deeply studied, and criminal law is no different. Yet there are so many ways to “do” and interact with criminal law, a key takeaway from Jocelyn Simonson’s book, Radical Acts of Justice: How Ordinary People Are Dismantling Mass Incarceration. Because her book encourages us all to expand our understanding of “doing” law, this book is a must read for scholars of criminal law and beyond.
Simonson’s book critically centers collective action by “everyday” people in and around the criminal legal system. She argues that certain categories of collective action cumulate as examples where groups of people not ordinarily considered to be doing criminal law are “resisting mass incarceration in their neighborhoods, counties, and states.” To understand these collective actions as radical forms of contestation, Simonson describes three key concepts—justice, safety, and the people—as the ideological foundation for mass incarceration in the United States. She defines traditional notions of justice as “finding and punishing individuals who have committed wrongs or engaged in disorderly behavior.” Safety is often construed the removal of those individuals from society by labeling them as criminal. Finally, the people tends to connote a good or neutral public that excludes both those accused of crimes and those resistant to mass incarceration. Together, these concepts constitute a series of ideas and assumptions that run beneath the operation of the criminal process and legitimize mass incarceration as status quo. Though these concepts are not always stated outright, they represent a “worldview” that, according to Simonson, “serves to uphold and disguise a system of oppression.” Continue reading "“Doing” Criminal Law Differently"
Nov 18, 2024 Shawn BayernContracts
Yonathan A. Arbel,
The Readability of Contracts: Big Data Analysis, 21
J. Empirical Legal Stud. __ (forthcoming, 2024), available at
SSRN (Jan. 01, 2023).
Probably all law professors, even textualists, have experienced frustrations with overly rigid applications of supposed rules about language. For example, they’ve encountered editors who require that all contractions be spelled out or replace every instance of the word “like” with “such as” regardless of whether the substitution makes sense in context. Editing like that serves formalistic assumptions about the readability and professionalism of text and usually rests on various “myths” or outdated conceptions about language. Similarly, many professors, even formalists, have encountered and been frustrated by institutional “metrics” that reduce rich, substantive endeavors (like education) to rigid and formalistic abstractions (“learning outcomes” or test scores).
In a critique at least broadly sensitive to the same kinds of frustrations, Yonathan Arbel’s recent draft article, The Readability of Contracts: Big Data Analysis, studies the Plain Language Movement, which has influenced language in such documents as consumer contracts and medical disclosures. Professor Arbel’s legal focus in the draft is on consumer contracts, and his point is not, of course, that language in consumer contracts should be unreadable. Instead, it is a sharp critique—backed both with analytical insight and with significant data—against formalized metrics of notions like readability. Continue reading "Consumer Contracts Have Many Problems, but “Readability” May Not Be One"
Nov 15, 2024 Tom C.W. LinCorporate Law
Many businesses today are subjected to a myriad of regulations. In order to ensure compliance with the large and dynamic bodies of federal, state, and local rules, many businesses create internal policies and systems to facilitate adherence to the law. However, such policies and systems exist in a dynamic marketplace filled with resource constraints and other business considerations. So, how do corporate managers construct internal compliance policies for their firms? What rules and regulations do they prioritize? How do they design internal systems to reflect the realities of law and enforcement?
In a recent article, Strategic Compliance, Professor Geeyoung Min offers a sharp and insightful perspective on these questions and more. Through an astute and deep analysis of a hand-collected dataset of corporate policies on insider trading and related party transactions from companies making up the Standard and Poor’s (S&P) 500 index, Professor Min reveals the policy customizations that occur at the firm level. Specifically, she reveals how firms customize internal policies on insider trading and related party transaction, oscillating between stringency and leniency. These revelations illuminate, inform, and interrupt conventional understandings about corporate compliance and internal policies. Continue reading "Compliance and Strategic Corporate Policies"
Nov 14, 2024 Deepa Das AcevedoWork Law
Yiran Zhang,
Home as Non-Workplace, __
B.U. L. Rev. __ (forthcoming), available at
SSRN (Mar. 11, 2024).
Everyone reading this jot likely has a story about how the home/office divide collapsed for them in 2020. (I have several.) But even among work law scholars, there aren’t too many of us who do more than periodically gripe about the divide’s demise. (I don’t.)
To be sure, we all understand that domestic labor is undervalued, underpaid, and insufficiently protected. But what about domestic space? Specifically, what about domestic space that is no longer, or no longer only, domestic? Yiran Zhang’s forthcoming article, Home as Non-Workplace, gives us a timely and comprehensive way to think about the home/office divide and what it does, could, and should mean for work regulation. Continue reading "This Place is My Workplace… This Place is Your Workplace…"
