Sep 5, 2024 Anita KrishnakumarLexLegislation
Margaret H. Lemos & Deborah A. Widiss,
The Solicitor General, Consistency, and Credibility, 100
Notre Dame L. Rev. __ (forthcoming, 2024), available at
SSRN (March, 25, 2024).
In The Solicitor General, Consistency, and Credibility, Professors Maggie Lemos and Deborah Widiss provide an eye-opening deep dive into an increasingly common—and oft-criticized—practice engaged in by the Solicitor General’s Office (OSG): rejecting a legal argument that was offered on behalf of the United States in prior litigation. Such flip-flops by the SG’s office have received considerable attention in recent years, as shifts in presidential administrations have produced a number of high-profile reversals that have, at times, garnered open criticism from the U.S. Supreme Court. The conventional wisdom posits that such OSG reversals are undesirable and pose a threat to the SG’s credibility with the Court. Lemos & Widiss seek to turn that wisdom on its head, arguing that there are often good reasons for the OSG to reverse course and urging courts to make a more nuanced assessment of the circumstances surrounding a reversal before deeming it problematic.
In order to better understand how and why the SG’s office engages in litigation flips, the authors compiled an original dataset of 130 cases dating from 1892 to the close of the Court’s 2022 Term that contained such reversals. Their goal was to provide both a descriptive account of litigation flips and a normative argument for why (and when) the Court’s skepticism of such flips is itself problematic. To that end, the authors offer the following taxonomy, or categories, of OSG flips: (1) flips that are due to changes in presidential administration; (2) flips that result from the fact that the government often wears “two hats”–such that it may have taken one position in litigation involving one agency, and a different position in litigation involving a different agency or that it may have been acting as an employer in one lawsuit but as a regulator in a later lawsuit; (3) flips that arise as a result of changed factual or legal developments, including on-the-ground experience with the relevant legal regime, or intervening changes in statutes, regulations, or judicial interpretations; or (4) flips that result simply from “zealous advocacy”—or efforts to obtain the best possible outcome for the client in a particular case. Continue reading "When the Solicitor General’s Office Flip-Flops"
Sep 4, 2024 Alexandra RobertsIntellectual Property Law
Dustin Marlan, Tertium Quid
Unveiled: Trade Dress and Service Design, 58
U.C. Davis L. Rev. __ (forthcoming, 2024/2025), available at
SSRN (March 11, 2024).
In an oft-quoted moment in the Supreme Court’s Wal-Mart v. Samara opinion, Justice Scalia articulated three types of trade dress: product packaging, which can be protectable from its earliest use if deemed inherently distinctive; product design, which is only ever protectable upon a showing of secondary meaning; and a third category, “some tertium quid that is akin to product packaging,” which is also capable of being inherently distinctive. As Professor Dustin Marlan sees it, Scalia coined the phrase to save face. He “needed a conceptual mechanism for distinguishing restaurant décor (previously held capable of inherent distinctiveness [in Two Pesos]) from product design (now considered incapable of such [in Wal-Mart]), without overruling the previous Two Pesos holding outright.” In so doing, Scalia conflated trade dress for services with product packaging in a way that has sowed confusion since 2000.
So what exactly is a tertium quid—Latin for “third thing”—and why should trade dress in that category be treated as capable of inherent distinctiveness? And how have courts perpetuated the vague, amorphous idea of tertium quid for more than 24 years without any real interrogation? Continue reading "Service Dress: Trademark Law’s Secret Third Thing"
Sep 3, 2024 Brian BixJurisprudence
The place of legal normativity in legal philosophy is distinctive and strange: there is a widely shared (though not universally shared) view that theories about the nature of law should “explain legal normativity,” but there is sharp disagreement regarding both what “legal normativity” entails and what it would mean to “explain” it. In Shadows or Forgeries? Explaining Legal Normativity, Alma Diamond offers a helpful overview of the current literature, along with a radically different approach to the issue.
In the first part of the article, Diamond explores the three different understandings of “legal normativity” currently prevalent in the jurisprudential literature: (1) the view that law gives its subjects (“real” or “robust”) reasons for action; (2) the observation that legal language implies that law gives subjects reasons for action; and (3) the idea that law must be the sort of thing that is capable of giving reasons for action, and/or that law, by its nature, implicitly claims to give us reasons. One can see that in all three alternative approaches, the focal point is a focus on reasons for action: whether the law gives us reasons, whether it purports to give us reasons, or what follows from its being the kind of thing that might give us reasons. After Diamond provides a detailed overview and critique of the three alternatives, she argues that all three approaches “take for granted that the appropriate explanatory primitive is the notion of a ‘robust’ reason for action.” (P. 64.) Continue reading "In Search of Legal Normativity"
Sep 2, 2024 Shubha GhoshInternational & Comparative Law
As antitrust goes through a resurgence in the United States with a revived appeal to Justice Louis Brandeis, it is worth looking across the ocean to see what can be learned from competition law and policy in the European Union. Professor Pablo Ibáñez Colomo’s The New EU Competition Law provides a deep dive with much refreshing insight into the directions competition law can and should take. Professor Ibáñez Colomo is with the London School of Economics and Ordinary Member of the UK Competition Appeal Tribunal. His book is a masterwork for scholars and students of competition law and theory. It is an understatement to say I like it lots, but I certainly do and much more.
What makes EU Competition Law new is the implementation of Regulation 1/2003 which gives the European Commission, the executive arm of the Union, authority to coordinate with national competition authorities to share documents and information, paper and digital, to pursue claims of anticompetitive activities within the European market. This new development has facilitated several competition law decisions from the European Court of Justice (ECJ), the judicial arm of the Union. One important authority granted under Reg 1/2003 is the power to impose fines on companies found to be in violation of competition law. The new prong supplements traditional competition law established under sections 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Section 101 outlaws agreements and anticompetitive practices (analogous to Section One of the Sherman Act). Section 102 outlaws abusive behavior by companies with a dominant position (analogous to Section Two of the Sherman Act). Continue reading "Competing Competition Laws: What the United States Can Learn From the European Union"
Aug 16, 2024 Medha MakhloufHealth Law
When I was growing up, every two years or so, my family would spend the summer in India, from where my parents immigrated to the United States. For many hours on those long, hot days, when our cousins were at school or work, my bookish siblings and I read whatever we could find around the house that was printed in English: musty paperbacks of The Famous Five and The Hardy Boys, women’s magazines like Femina, and every page of any English-language newspaper – including the matrimonial ads. We were children raised in the United States, so we cackled over the frequent use of the word “homely” to describe women who were purportedly good at domestic labor and at ads that described suitors as having “no vices.” However, among the bewildering array of “biodata” listed in these ads were descriptors of skin tone: “very fair,” “fair” or “wheatish” (never “toffee,” “chestnut,” or “dark”). The Matrimonial section is where I first encountered the idea of skin color as social capital. My understanding of the societal conflation of light skin tone with beauty was reinforced in the ubiquitous ads (in magazines, on television and billboards) for Fair & Lovely, a skin-lightening cream. These ads featured the biggest Bollywood stars who, in the “after” images, had skin so light it would meet Victorian beauty ideals.
I recalled these experiences as I read Collen Campbell’s recently published article, which uses, as a case study, the under-regulation of skin-lightening creams to illustrate the need for intersectionality analyses in U.S. food and drug law. Safety concerns about cosmetics have been trivialized in food and drug law because of its “characterization as a superficial beautifying agent and its feminization, since women are its primary consumers.” Beauty products whose primary consumers are women of color are even more neglected, leaving these consumers more vulnerable to toxic exposures and compounding existing health disparities. Continue reading "Regulating Skin Lightening Products: A Case Study of Structural Forces Shaping Inequities in Health"
Aug 15, 2024 Dara E. PurvisFamily Law
If you do not read as much about celebrity gossip as I do, you likely missed recent news that Shiloh Jolie-Pitt, the child of actors Angelina Jolie and Brad Pitt, filed to remove “Pitt” from her name within days of her eighteenth birthday. The split between Jolie and Pitt was sparked by an alleged incident of domestic violence and several of Jolie’s other children have already informally dropped “Pitt” from their names, so the petition itself is unsurprising. Also unsurprising, however, is that every article I saw about the name change petition included Brad Pitt in the headline—so no matter what her legal name will be, Shiloh will continue to be identified as Brad Pitt’s daughter.
But what if she could also petition to sever that link? The story reminded me of a fascinating article published last year by Sean Hannon Williams arguing that adult children should have exit rights from the parent/child relationship and mapping out several versions of what that exit might look like. Professor Williams uses a less sensational but more concrete example to illustrate the need for exit rights; an acquaintance raised by an abusive mother used an adult adoption to sever her legal relationship with her biological mother. Williams points out that the adult adoption was only possible because the woman’s stepmother was willing to become a replacement legal mother—in the absence of someone willing to take on that legal status, his acquaintance would have no ability to legally separate herself from her biological mother. He asks why adult children should be “trapped in a legal relationship that they never consented to,” (P. 668) and spends the rest of his article outlining the why and how of exit rights for adult children. Continue reading "Family Law Exit Rights: A Provocatively Slippery Slope"
Aug 14, 2024 Aya GruberCriminal Law
U.S. foreign policy was built on a foundation of sexual conservatism. This is Eva Payne’s bold thesis, which at first blush seems to afford an outsized role to sexual politics in global policy. Yet upon reflection, it makes perfect sense that there is an international manifestation of America’s well-documented domestic intertwining of “sexuality and statecraft.” Scholars of global law and policy have long recognized the phenomenon of “American exceptionalism,” which is the nation’s Janus-faced self-representation as a uniquely exemplary nation that need not accept international consensus or law and also a world leader with a prominent role to play in collective global affairs. Scholars of American sexuality and sexual regulation have demonstrated how U.S. authorities’ preoccupation with dangerous sexuality shaped criminal and family law, border policies, the contours of the public street, and the federal policing apparatus. Indeed, the mutually constitutive relationship between American-style sex-aversion and the American penal state is the topic of my forthcoming book The Crime of Sex. Payne, a historian, brings together these two seemingly disparate subjects of legal and historical analysis—international relations and sexual regulation—and demonstrates their interconnectedness through an eminently readable chronological tale based on painstakingly detailed historical, legal, and archival research.
The story begins roughly in the mid-nineteenth century, when the America of mostly rural sprawl began to more resemble its urban British and continental counterparts, and the cities brought with them a flourishing sexual culture. Britain and France had long wrestled with how to approach commercial sex, the least offensive term for which was “prostitution.” All three governments were particularly concerned with syphilis, which sexist state officials blamed exclusively on the “filthy” and “fallen” women. Accordingly, authorities singularly focused on controlling prostitutes as the solution to the pressing public health problem. In Europe, authorities favored the regulation model, a quite dystopian system where women bought licenses to work in commercial sex, and their funds lined the pockets of corrupt bureaucrats and paid for compulsory testing, quarantine, and painful invasive and ineffective treatments. Poor women, women of color, and victims of settler colonialism, like the Indian women under British rule, endured the worst treatment by police and public health officials. Continue reading "American Sexual Exceptionalism"
Aug 13, 2024 Ann LiptonCorporate Law
Hilary J. Allen,
Interest Rates, Venture Capital, and Financial Stability, __
U. Ill. L. Rev. __ (forthcoming), available at
SSRN (March 8, 2024).
The last decade has seen a transformation in patterns of corporate organization. Enabled by loosened restrictions on private capital raising, venture capital firms have fueled the creation of a new ecosystem of large, privately held “unicorn” companies that are so well capitalized that they have not sought to access the public markets. That shift has been accompanied by a host of new questions about optimal governance arrangements, fiduciary obligations, the positive externalities of securities disclosure, fraud prevention, the role of shareholder agreements, and the disciplining effect of the capital markets.
In her new paper, Interest Rates, Venture Capital, and Financial Stability, forthcoming in the Illinois Law Review, Professor Hilary Allen adds a new question: what are the risks to financial stability? Allen claims that low interest rates fueled the growth of venture capital, which is itself prone to inflating bubbles and exacerbating panics. She ultimately argues that financial regulators need to be more attuned to unexpected places where funding tends to flow during periods of accommodative monetary policy. Continue reading "Venture Capital and Financial Stability"
Aug 12, 2024 Robert HillmanContracts
Kimberly D. Krawiec, Nathan B. Oman,
The Case for Specific Performance of Personal Service Contracts, 110
Iowa L. Rev. __ (forthcoming, 2025), available at
SSRN (May 17, 2024).
Professors Krawiec and Oman’s insightful new article caught my eye, having myself challenged various contract remedial rules in my research and writing over the years. The title of the Professors’ article made me wonder, however, whether the authors can convince readers that the seemingly inviolate rule against specific performance of personal service contracts should be overturned. But it turns out that the call for specific performance in the article actually applies to a quite limited set of personal service contracts, with the rule against specific performance still governing most such contracts. Despite the title, the authors have a good explanation for why their more narrow thesis is important: Personal service contracts that should be subject to specific performance are “legally and economically significant.” (P. 58.)
Early on, the authors clarify that their goal is to show that specific performance should not be ruled out and the general rules governing equitable remedies should apply if the breaching employee is wealthy, sophisticated, and money damages are incalculable or insufficient to make the employer whole. Further, courts should consider specific performance only when a reasonable substitute employee is not available. In addition, specific performance would only apply if the parties agreed to the remedy in their contract and would never apply if the employee had little bargaining power nor to contracts with at-will employees (the latter for obvious reasons). Finally, the duration of a specific performance order would be limited to one year or less. Thus, the authors would target for specific performance fixed-term contracts between employers and employees such as sports figures, entertainers, and teachers, and even in these instances the typical flexible rules of equitable remedies would apply so that specific performance would not be automatic. Continue reading "The Case Against Static Contract Remedies"
Aug 9, 2024 Jaya Ramji-NogalesLexImmigration
Immigration law as a field of scholarly inquiry is largely critical of the status quo, with much of the literature describing inequities authorized by law and implemented through policy. An increasing number of these works foreground the work that race performs in perpetrating and perpetuating injustice in the immigration system. Yet there remains a profound silence around the question of blackness in migration. Modern Migrations, Black Interrogations begins to dismantle that silence, presenting the reader with “the unasked question” in the field of migration studies. (P.1.) This critique of antiblackness upends existing assumptions and presents important new directions for scholarly inquiry in immigration law.
As the Introduction to this edited volume explains, blackness should be the starting point for any study of mobility. But we cannot just “add blackness and stir”; the editors insist that we must begin by interrogating the antiblackness at the heart of the U.S. immigration system. (P. 11.) It is only through this more profound inquiry that we can begin to understand all borders and bordering processes, and to combat the antiblack violence enabled and obscured by the vast silence that greets questions of blackness and mobility. (Pp. 1, 14). Continue reading "Dismantling Silence Around Blackness and Mobility"
