Jul 26, 2024 Scott CummingsLegal Profession
Ann Southworth is a pioneering scholar of the conservative legal movement. Her 2008 book, Lawyers of the Right: Professionalizing the Conservative Coalition, offered path-breaking insights into the evolution of the movement, charting its origins, features, and fractures. Her new book, Big Money Unleashed: The Campaign to Deregulate Election Spending, is a worthy—and timely—successor that explores one facet of what the movement has achieved. In it, Southworth examines the decades-long legal campaign to transform the First Amendment into a vehicle to enable unfettered corporate influence in politics. This campaign culminated in the 2010 Supreme Court case, Citizens United v. FEC, which gave corporations the right to spend unlimited amounts on candidates for political office, overruling precedent to strike down a critical provision of the Bipartisan Campaign Reform Act 2002 (BCRA), otherwise known as the McCain-Feingold law.
Southworth’s aim is not to explain or defend the doctrine resulting from this campaign, but rather to uncover the “process that generated” it. (P. 2.) She does so by analyzing “how lawyers and other key actors worked with the justices to create that law, borrowing a litigation strategy pioneered by the NAACP Legal Defense Fund to dismantle racial segregation and using it to advance a very different type of cause.” (P. 2.) Southworth mobilizes a trove of primary research, which includes data on the political alignments and financial supporters of organizations filing briefs in Roberts Court campaign finance cases (Citizens United (2010), Arizona Free Enterprise Club v. Bennett (2011), and McCutcheon v. FEC (2014)), language analysis of arguments in briefs filed in twelve Supreme Court cases since the 1970s, and interviews with fifty-two lawyers who participated on both sides of the campaign. It is a testament to Southworth’s careful scholarship and status as a scholar both sides respect that she was able to gain access to lawyers on this deeply polarizing political issue. Continue reading "How the Conservative Legal Movement Gave First Amendment Rights to Corporations—and Why It Matters Now"
Jul 25, 2024 Aliza BloomCriminal Law
Criminal law scholars have long been concerned with the system’s pervasive harms to race and class-subjugated communities, and more recently they observe the subordinating functions of criminal law and procedure. In their fascinating new study, G. Ben Cohen, Justin B. Levinson, and Koichi Hioki present data on the connection between race and group-imposed liability. Their paper critiquing the racially disparate application of felony murder and accomplice liability supplements this conversation with empirical findings that racial bias affects perceptions of who is acting alone versus in concert with others. I believe that these psychological findings are also relevant to discretionary policing. Just as implicit racial bias affects courts and juries’ application of felony murder and accomplice liability, it affects the assumption of group liability in police decisions to surveil, approach, interrogate and arrest young people associating in groups in public spaces.
Cohen, Levinson and Hioki address the operation of racial bias in homicide doctrine. First, they detail the pervasive critiques of felony murder and accomplice liability, which “sit at the fulcrum of the criminal legal system’s false promise of individualized moral culpability.” These doctrines eliminate a prosecutor’s need to prove either of the core elements of murder: that the individual committed the act (actus reus) or that they intended to do so (mens rea). Courts engage in a problematic inquiry where intent and action are inferred, providing fertile grounds for racial bias. The Court grappled with felony murder but ultimately found that even the death penalty does not violate the Eighth or Fourteenth Amendments where a person, without intent to kill, had a “major participation in the felony committed, combined with reckless indifference to human life.” And despite the fact that accomplice liability undermines fundamental notions of individualized guilt, it has become a powerful tool, especially for statutes defining offenses based on group affiliations including gang enforcement, and RICO charges. As the authors explain, prosecuting people for felony murder and accomplice liability addresses a problem that does not exist because accomplices are already punished for their actual crimes. Continue reading "Assuming Collective Criminality in Policing"
Jul 24, 2024 David FagundesIntellectual Property Law
Andres Sawicki,
The Law of Creativity?, __
Cornell L. Rev. __ (forthcoming 2025), available at
SSRN (Aug. 28, 2023).
If you jostle an IP scholar awake in the middle of the night and ask them, “What is the canonical justification for copyright and patent,” the first thing they’ll say is, “What the hell are you doing in my bedroom?” But the second thing they’ll say is, “Limited exclusive rights in works of authorship and inventions are necessary to preserve incentives to create them.” Or as Samuel Johnson more bluntly put it, “No man but a blockhead ever wrote, but for money.”
Everyone knows that this is the received wisdom. But strangely, at the same time, no one actually believes it. Intuitive counterexamples to Johnson’s “blockhead” comment are easy to conjure. Authors often produce content with zero expectation of remuneration simply because they have something to say and want to share it with others. Scientists engage in pure research because they want to contribute to how we understand the world (and also because they are paid a salary, by universities, or drug companies, etc.). Developers produce innovations not only to become the next Uber or Google but to improve others’ lives and for the love of making stuff. Continue reading "Samuel Johnson Was a Blockhead"
Jul 23, 2024 Jedidiah KronckeInternational & Comparative Law
J. Benton Heath,
Economic Sanctions as Legal Ordering, __
Mich. J. of Int’l. L. __ (forthcoming, 2024), available at
SSRN (Jan. 31, 2024).
The issue of economic sanctions has become a near routine aspect of the contemporary news cycle. While many such regimes are now decades old, the enactment and modification of sanctions has become the most pervasive form of coercion practiced among modern nation-states. In his article Economic Sanctions as Legal Ordering (hereinafter ESLO), J. Benton Heath confronts the contemporary normalization of sanctions with a decisively unsettling transnational intervention: the role of early 20th century Chinese consumer boycotts in stimulating many elements now taken for granted in modern sanction regimes. In recovering the force of this neglected precedent, Heath helps us better understand what is and isn’t new about the recent intensification of economic sanctions while also providing a powerful example of the increasingly undeniable necessity of transnationalizing how we understand the origins of contemporary international legal developments.
Heath’s central argument in ESLO is that the largely civil-society-led Chinese consumer boycotts that emerged at the beginning of the 20th century were what he calls an “insurgent legal ordering.” This insurgency was organized beyond the bounds of what the modern international legal order took to be its unit of analysis—the nation-state—and over four decades its accomplishments shaped how economic warfare came to be legally disciplined. The importance of this pre-World War II provocation joins an increasingly wide range of scholarship as to how Chinese actors and arenas were far more central to the development of the modern international legal order than has been historically recognized. Heath here combines a synthesis of existing works on Chinese boycotts with original archival research into how the force of these boycotts were interpreted by the dominant architects of the evolving early 20th-century international legal order. Continue reading "Taming Legal Insurgency: An Unruly Counter-History of Economic Sanctions"
Jul 22, 2024 Natsu Taylor SaitoEquality
In her very timely Imperialism and Black Dissent, Nina Farnia proposes that the jurisprudence of political speech and association is best explained not by abstract principles of constitutional law but by a context in which domestic movements intersect with the global projection of American political and military power. Using case studies from four phases of racial resistance in the United States—Black Communism, the Civil Rights Movement, the Black Power movement, and the Movement for Black Lives—she disrupts the commonly accepted narrative that both First Amendment jurisprudence and the state’s targeting of particular ideologies are “colorblind” processes.
For Farnia, “[b]ecause domestic security in the United States necessarily involves the management and suppression of racialized rebellion and radical dissent, national security ideology and the First Amendment cannot be decoupled.” (P. 403, emphasis added.) What’s interesting here is not the fraught relationship between individual rights and collective security—we’ve circled that rock often enough since 9/11—but Farnia’s thoughtful and detailed discussion of the interplay of ideological and racial repression. Continue reading "Ghosted? Race, Repression, and The First Amendment"
Jul 19, 2024 Brian FarkasLexInternational Arbitration
If you ask most practitioners to describe the rules of evidence in arbitration, they’re likely to respond with three words: the Wild West. Recent scholarship by Henry Zhuhao Wang peeks into the black box of arbitral hearings to expand—and complicate—our understanding of this untamed landscape.
When I teach arbitration, I bring a prop to one of the class sessions: an evidence textbook. I ask how many have taken a course on evidence. About three-quarters of the students’ hands shoot up. I ask them to look at the book as I hold it above my head. Notice its thickness. Its height. Its weight. The hard cover and thin pages. I ask them to remember the feeling of schlepping it to class. I ask them to remember the rules. The exceptions to the rules. The exceptions to the exceptions. Continue reading "Evidence in Arbitration: Should the Wild West be Tamed?"
Jul 18, 2024 Zack BuckHealth Law
Legal scholarship frequently deals with the theoretical: a scholar identifies an interesting legal problem or inconsistency, and by applying an incisive legal analysis, attempts to solve it. This is the typical process of the legal academic. This endeavor and type of legal scholarship and focus is important, and may even be prescient, but—to echo a well-worn critique—it may often lack real-world and immediate practical effect.
This is not the case for Professor Jessica Mantel, who, colleagues know, is an important voice within health law scholarship, and is well-known for her clarifying work on health care finance topics in an era of dynamic change. Her work is grounded in practical import. Professor Mantel shows her range through her recent work, exemplified by Age is More Than Just a Number: A Legal and Ethical Defense of Age-Based Triage Protocols. This work is particularly important in a world and a field that has been pressure-tested and scrambled following the COVID-19 pandemic. Continue reading "Implementing Age-Related Triage Protocols"
Jul 17, 2024 Naomi R. CahnFamily Law
Catherine Smith,
“Children’s Equality Law” in the Age of Parents’ Rights, 71
Kan. L. Rev. 539 (2023), available in draft at
SSRN (April 21, 2023).
When I teach canonical parentage and child custody cases such as Michael H. v. Gerald D. or Troxel v. Granville, I ask the class what they know about Victoria or Isabelle and Natalie Troxel. Students are often a little startled to hear the names of the children at the core of these cases, and we then discuss how rarely the children’s actual interests are addressed. The cases are framed as battles between adults over their rights to the child; even though Victoria asserted her own liberty and equal protection claims, the Michael H Court was highly dismissive of them.
Catherine Smith has been working to change that situation. Along with Northwestern Pritzker School of Law Associate Dean Robin Walker Sterling and George State College of Law Professor Tanya Washington, Smith has received a grant of over $2 million to fund a new project, The Advancement for Children’s Constitutional Rights Consortium. One goal is to develop a new casebook, Children and the Constitution, which will focus on children’s rights in the constitutional law canon. Professor Smith’s article, “Children’s Equality Law” in the Age of Parents’ Rights, provides insight into some core aspects of what this revisioning of the constitutional canon might involve. The article notes that, while one conception of children’s rights could include both liberty and equal protection rights, an even “broader conceptualization could invoke a panoply of young people’s social and civil rights.” Continue reading "Building the Constitutional Canon for Children’s Rights"
Jul 16, 2024 Da LinCorporate Law
How can we better understand the scope of inequity and track its evolution?
By any metric, gender gaps are ubiquitous within senior ranks of the legal profession. Women have outnumbered men in law schools since 2016 but represent only 20% of all equity partners at multi-tier law firms, are 2 to 3 times more likely than male faculty to occupy non-tenure track and interim dean positions, and make up only 12 to 22% of those who have argued before the U.S. Supreme Court over the past decade. Yet these figures, although striking, don’t capture the full scope of the inequality. Qualitative studies consistently reveal, for instance, that female attorneys have different professional experiences than their male counterparts, exit the profession earlier, and face greater obstacles advancing in their careers.
The persistence of gender and racial inequities in the legal profession is not new, nor are questions surrounding their causes, effects, and potential solutions. But a recent article, Gender and the Social Structure of Exclusion in U.S. Corporate Law, by Afra Afsharipour and Matthew Jennejohn offers an intriguing avenue to better answers. Continue reading "Network Effects"
Jul 15, 2024 Sheldon EvansCriminal Law
Esther Hong,
The Age of Creativity and Crime (May 6, 2024), available at
SSRN.
There is a thin line between creativity and crime. In an era of scholarship where there is a deluge of books, articles, and commentary on mass incarceration, prosecutors, policing, and the nuances of crime and social justice, Professor Esther Hong dares to be creative. Hong skillfully weaves together the criminal sociology of Émile Durkheim with modern neuroscience and legal standards to persuasively argue that creativity and criminality often overlap. She explores what that means for the overcriminalization of youth and the insatiable human pursuit of progress.
In The Age of Creativity and Crime, Hong is taking a path less traveled that lies at the intersection of sociology, child development, science, and criminology. And the payoff is incredibly worthwhile. In the piece, Hong argues that there are aspects of criminal law that set arbitrary boundaries between positive creativity and negative criminal activity. She does this by relying on the sociological literature that has found many links between the character traits of creativity and those of criminality. People that fall into the “creative” or “criminal” category both refuse to follow set norms, have a distrust of authority, and tend to think outside of the box to solve common problems. How much difference is there between a person who expresses their artistic creativity by splashing art on a canvas when compared to a similar artist splashing art on the side of a commercial building? One is considered a positive creative influence, while the other is criminalized as a defendant creating blight. Hong’s contribution is to highlight the similar character traits shared by those acting on the spectrum of what society considers as positive progress versus what society considers as criminal harm. Continue reading "Getting Creative on Crime Policy"
