Feb 23, 2024 Brian BixFamily Law
Kimberly D. Krawiec,
Gametes: Commodification and The Fertility Industry,
The Routledge Handbook of Commodification, Vida Panitch and Elodie Bertrand eds., (forthcoming 2024), available at
SSRN (Apr. 22 2023).
A growing number of couples and individuals use some combination of in vitro fertilization (IVF) clinics, egg donors, sperm donors, and gestational surrogates to have children. But these ways of helping the infertile have children have raised moral qualms. Kimberly D. Krawiec’s paper, Gametes: Commodification and The Fertility Industry, offers a concise and persuasive overview of one small part of the debate: moral objections that have been raised to egg donation and payments for egg donation.
As Krawiec notes elsewhere, “[t]he United States is unusual among most jurisdictions in that it permits a legal market in human eggs.” And as this paper elaborates, much of the regulation of compensation for egg donors has occurred in an indirect way. The vast majority (as of 2018, 86%) of IVF clinics were members of the Society for Assisted Reproductive Technology (SART) (P. 5). SART, in turn, required its clinic members to follow certain “best practices,” including the guidelines for egg donor compensation set by a different group, the American Society for Reproductive Medicine (ASRM) (P. 5). Continue reading "Egg Donation, Commodification, and Coercive Payments"
Feb 22, 2024 Sheila Vélez MartinezEquality
The book, Race and National Security, edited by Professor Matiangai V. S. Sirleaf, of the University of Maryland Francis King Carey School of Law, offers us a historic opportunity to change our political imaginary. This book delivers on its promise to “fully excavate[] the question of how race and racism relate to national security domestically, transnationally[,] and internationally.” In the words of Walter White, Executive Secretary of the National Association for the Advancement of Colored People (NAACP) from 1929–1955:
Race discrimination threatens our national security. We can no longer afford to let the most backward sections of our population endanger our country by persisting in discriminating practices. We must meet the challenge of our neighbors, not only because discrimination is immoral, but also because it is dangerous.
Although White’s critique continues to be true today, in the context of the broader conversation on national security, it is now clear that White’s focus on discrimination provides an insufficient framework. One of the many achievements of Race and National Security is that it centers a framework not of discrimination, but rather of racial justice, one that focuses on addressing institutional racism and anti-subordination. The growing general focus on racial justice, both on a national and a global scale, coupled with the continuous resistance against established racial norms, justifies the book’s deliberate examination of these issues and serves as the driving force behind this book. The authors contributing to the volume look at national security law as complicit in furthering systemic inequality from an anti-subordination positionality. They illustrate practices and policies that, whether by intent or effect, enforce the subjugated social status of historically oppressed communities within societies across the globe under the protective umbrella of national security. Thanks to their work, we are now able to draw interesting connections among the various ways these racial injustices work. Continue reading "The Intersection between Race and National Security"
Feb 21, 2024 Eric J. MillerCriminal Law
Reparations for the harmful impacts of policing on Black communities—and other communities of color—attracted attention when it became plank of Black Lives Matter founder Patrice Cullors’ demands for police and prison abolition. However, the Cullors remarks on reparations are more suggestive than definitive for a well-worked out reparations program. Into this void has stepped Professor Alexis Karteron, who recognizes that standard approaches to police accountability work primarily to provide individualized and episodic remedies, despite the police often harming whole communities through their assaults on identifiable individuals. Karteron argues that a reparations framework can contribute to developing community-wide and structural remedies. This reparations approach provides an important alternative to the individualized account of harm and redress familiar in criminal law theorizing, and highlights the special way that reparations can play a role in police accountability.
Karteron’s promotion of community-wide reparationist remedies builds on her discussion of other, more individualized forms of police accountability and their serious limitations. For example, Karteron identifies the serious drawbacks of constitutional tort claims under 42 U.S.C. §1983 and state law equivalents. These lawsuits focus on discrete police harms, one person at a time. The legal system presents often insurmountable informational, financial, and procedural hurdles. For example, state exhaustion requirements, usually under the state’s tort claims act legislation and federal constitutional law, may make it hard for a plaintiff to find counsel willing to represent a victim of police violence. Often, they also have a very short time period in which to secure counsel because of these exhaustion rules. Other legal doctrines, such as standing to bring suit and the statute of limitations, further operate to narrow access to the two major legal remedies: monetary damages and injunctive relief. At best, only direct victims who have suffered an “actual injury” receive compensation, while witnesses, family members, and other bystanders get nothing, even though they may be directly traumatized or otherwise impacted by police violence. To the extent that the community has a remedy through injunctive relief, the scope of injunctions is limited by doctrines disfavoring judicial oversight of the executive branch, and especially law enforcement. Continue reading "Imagining Healing and Accountability through Reparations for Police Violence"
Feb 20, 2024 Suja A. ThomasCourts Law
Thomas Frampton,
The First Black Jurors and the Integration of the American Jury, 24
N.Y.U. L. Rev. __ (forthcoming, 2024), available at
SSRN (Sept. 5, 2023).
Thomas Frampton’s article The First Black Jurors and the Integration of the American Jury reads like an exciting book giving us a new perspective on the first black jurors. It helps us better understand the jury as a democratic institution.
We know juries decide few cases—less than 1% of civil cases and less than 4% of criminal cases. And we are still trying to discover why. The question is complicated. At least one scholar has proffered that it may have to do with race—that as the jury has become more diverse, juries have disappeared.
This narrative makes Frampton’s article even more interesting. To understand more about whether diverse juries have led to fewer jury trials, we need to discover when and why juries became diverse. The answers to these questions also help us think about other important rights such as citizenship. Continue reading "Investigating the When and Why of the First Black Jurors"
Feb 19, 2024 Omari SimmonsCorporate Law
Nearly two-thirds of workers have access to an employer-sponsored retirement plan (P. 324.) Consequently, retirement security is a salient issue in US politics and corporate governance. BlackRock, Vanguard Group, and State Street, the three largest investment managers, who own about 20 percent of every company in the S&P 500 Index, offer a menu of mutual funds and other services for employer-sponsored retirement plans. (P. 308.) Institutional investors’ prominence and putative conflicts of interest are hot topics among scholars and regulators. (Pp. 307-21.)
Natalya Shnitser’s must-read article, The 401(k) Conundrum in Corporate Law, argues that these concerns and efforts, however well-intentioned, are based upon shaky theoretical foundations: (i) a description of how employer-sponsored retirement plan decisions are executed that does not reflect the evolution of plan governance and (ii) reliance on outdated information that fails to consider recent trends showing less biased voting decisions among fund managers. The article deftly captures the intersection of corporate governance and employee benefits law. Continue reading "Retiree Exploitation? Debunking the Retirement Business Theory"
Feb 16, 2024 Daniel BarnhizerContracts
Marietta Auer,
Bargaining with Giants and Immortals: Bargaining Power as the Core of Theorizing Inequality, __
L. & Contemp. Probs. __ (forthcoming)
, available at
SSRN (Aug. 28, 2023).
In this article, Marietta Auer, Director of the Max Planck Institute for Legal History and Legal Theory, takes a sophisticated and nuanced look at the role of unequal bargaining power as it relates to both economics and legal theory. From my own perspective as an unrepentant libertarian and capitalist, there is much in the article with which I disagree. However, Auer’s observations on the importance of bargaining power inequality, the relationship between law and markets in a [quasi-]capitalist economic and political system, and the futility of attempts to use law to redistribute bargaining power among market actors are insightful, creative, and require engagement by those working on the problem of bargaining power.
Auer’s analysis begins with a survey of both classical and neoclassical economic arguments regarding the neutrality of markets. According to Auer, under the classical conception of private law in relation to markets, “the ground rules of private law, in particular property and contract law, provide a politically neutral framework that enables market transactions among equals.” (P. 6.) While it is questionable whether and to what extent legal scholars and courts of the so-called formalist period in American law and jurisprudence actually adhered to the classical conception as described by the later American Legal Realists, the advent of American Legal Realism addressed the apparent disconnect between classical contract and property law versus practical economic realities in which facially neutral legal rules promoted exploitation and coercion in transactions affected by bargaining power disparities. As noted (with a big helping of judicial hubris) in what appears to be the first U.S. case to recognize explicitly the legal concept of inequality of bargaining power:
Our enlightened modern thought realizes that an equality of bargaining power between two such unequal parties [employees and employers] is impossible, and has attempted to equalize the balance through the labor unions and state regulation of industry; but old ideas die hard, and the pathways of progress are strewn with the fragments of legislation designed for this purpose but wrecked on the insistence of court after court that the state must not interfere with the ‘free right of contract.’ Continue reading "Maybe Odysseus Was a Capitalist?"
Feb 15, 2024 Felix MormannLexEnergy Law
Electricity is the lifeblood of America. Automotive manufacturing in Detroit, server farms in Silicon Valley, the heating and cooling of our homes, and the charging of our smart devices all depend on the availability of affordable and reliable electric service. Electricity, in other words, is as vital to our economy and lifestyle as the air we breathe is to our survival. At the same time, the way we generate, transmit, and use electric power directly impacts, often adversely so, the quality of our air and water, exacerbates global climate change, and causes deadly wildfires, among other societal impacts. Given the complexity of the electric grid and its many interactions with social welfare and the public interest, one might expect Public Utility Commissions (PUCs) to provide comprehensive oversight to address and regulate these interactions. Most do not.
In his excellent new article, Precautionary Ratemaking, professor Jonas Monast makes a compelling case for PUCs to become more proactive regulators of the wide-ranging risks associated with electric utilities’ actions. The article urges utility commissioners to interpret their regulatory mandate beyond the traditional confines of economic regulation and least-cost electric service to include risk analysis and management according to the precautionary principle that underpins much of modern environmental law. Continue reading "Public Utility Regulation Through the Lens of Risk Management"
Feb 14, 2024 Richard MurphyAdministrative Law
To start, please forgive a few preliminaries: The Constitution provides express instructions governing appointments of Officers of the United States but not about removals (other than by impeachment). Congress has often stepped into this gap by imposing limitations on the power of the President to remove agency officials. The Supreme Court upheld for-cause style limits on presidential removal authority from the New Deal up until the arrival of the Roberts Court. The Roberts Court, following a path blazed by Justice Scalia, adheres to the principle of the “unitary executive,” which holds that the power to remove agency officials is a necessary element of the “executive power” that Article II of the Constitution provides “shall be vested in a President.” Art. II, § 1, cl. 1. Accordingly, the Roberts Court has invalidated several statutory restrictions on presidential removal power in a series of high-profile cases. To support this embrace of the unitary executive, the Roberts Court has relied upon one precedent above all others, Myers v. United States, 272 U.S. 52 (1926). Chief Justice Roberts has characterized Myers as having “conducted an exhaustive examination of the First Congress’s determination in 1789, the views of the Framers and their contemporaries, historical practice, and our precedents up until that point.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020). This “exhaustive examination” conclusively demonstrated that the President’s “executive power” must include a general authority to remove executive officials. Id. at 2197-2198.
In their terrific article, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, Professors Katz and Rosenblum take a blowtorch to this reading of Myers. On their account, President—whoops, sorry, Chief Justice—Taft’s 72-page majority opinion in Myers did not provide an accurate, originalist report on the Framers’ eighteenth-century expectations regarding the power of the presidency. Rather, Chief Justice Taft constitutionalized a twentieth-century, Progressive vision of the President as “popular tribune and chief administrator.” (P. 8.) Myers thus provides an example of, gasp, “living constitutionalism.” (P. 19.) And so does the Roberts Courts’ twenty-first century deployment of Myers for its own, not-so-Progressive ends. Continue reading "Myers, We Hardly Knew Ye?"
Feb 13, 2024 Joseph SeinerWork Law
In The Causation Canon, Professor Sandra Sperino performs a superb analysis of the Supreme Court’s evolving analysis of causation standards. The piece carefully synthesizes the decisions in this area, identifying a new canon of statutory interpretation now used by the Court – coined by Professor Sperino as the “Causation Canon.”
The law with respect to causation has always been muddled. In the field of employment discrimination law and worklaw more generally, causation has persistently presented a tremendous burden to claimants in the field. While establishing causation in other areas of the law may often be much more straightforward, showing discriminatory employer intent can present a Herculean task. There are a variety of reasons for the difficulty, including that so much of the critical information in such cases often resides with the employer and can be notoriously difficult to uncover. Personnel files, worker emails, and other critical evidence may not be readily accessible to a worker who has been recently fired, or may be accessed only at substantial cost during discovery. Yet the law requires that causation be established to recover in most workplace cases, particularly with respect to disparate treatment employment discrimination claims.
Professor Sperino’s groundbreaking paper identifies the new way that the Supreme Court has approached statutory interpretation with respect to issues involving causal determinations. As she identifies the Court’s new doctrine, which has evolved over the past decade, “[w]hen a statute uses any language that might relate to factual cause, the Court will assume that Congress meant to require the plaintiff to establish ‘but-for’ cause.” (P.704.) Professor Sperino traces the doctrine back to 2013. Prior to this time, she notes that the Court looked at each statute individually in determining how to interpret factual cause in each matter. Over the past decade, however, the Court has looked at causation differently, assuming that the but-for requirement exists universally across statutes. Continue reading "The Supreme Court’s Evolving (and Dubious) View on Causation"
Feb 12, 2024 David HortonTrusts & Estates
- Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners, available at SSRN (Jan. 20, 2023).
- Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries, available at SSRN (Jan. 20, 2023).
Some of the most important rules in inheritance law may be out of date. Intestacy statutes distribute the assets of most decedents in the U.S. Because they provide an estate plan by default, they’re supposed to reflect majoritarian preferences. Many such laws, including the 1990 amendments to the Uniform Probate Code (“UPC”), favor ties of marriage and blood. Yet American families are rapidly evolving. Unmarried cohabitation is on the rise. Likewise, skyrocketing rates of divorce and remarriage mean that one child in six now lives in a “blended” family. Arguably, these shifts cast doubt on the Leave It to Beaver conservativism of traditional intestacy regimes.
Unfortunately, the intuition that intestacy statutes are archaic has long been just that—an intuition. There’s little reliable data about what people want to have happen to their property after they die.
Enter Yair Listokin and John Morley, who have posted a pair of sophisticated empirical studies about dispositive preferences on Social Science Research Network: A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners and A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries. Continue reading "Rich Data About Dispositive Preferences"
