May 4, 2024 Michael Froomkinzetasec
Gráinne de Búrca, Rosalind Dixon, & Marcela Prieto Rudolphy, Engendering the Legal Academy, 22 Int’l J. Const. L. __ (forthcoming, 2023).
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 "Feedpress test May 4, 2024"
May 3, 2024 Eli WaldLegal Profession
One of my favorite “classes” at law school was not a class at all. Once a week, along with dozens of other seemingly busy law students, I would head to Pound Hall to hear eminent international law professor Joseph Weiler lead an informal bible reading group. Two aspects of the reading group were especially intriguing: the analysis of the Old Testament from the perspective of “thinking like a lawyer” and the group’s inclusivity. All were welcomed and no prior knowledge or experience was required. The only thing one was expected to do was read the weekly portion ahead of the gathering. The reading group carried no credit and yet regularly it was standing room only. People attended because it was a fun intellectual exercise. It was a highlight of my days at Harvard Law School.
Daphne Barak-Erez’s new book, Biblical Judgments, reminds me of the old law school reading group. Barak-Erez invites readers to “think about law and legal institutions by a rereading of the Hebrew Bible,” revisiting hidden assumptions underlying, and testing correlations to, contemporary legal systems. (P. 1). The manuscript explores excerpts from the Old Testament to illuminate contemporary challenges confronted by lawyers in six areas of law practice: law and government, judging and judges, human rights and social justice, criminal law, private law, and family and inheritance. My favorite section is Part III, dealing with individual rights and social justice. It tackles topics such as discrimination, harassment, and racism, not shying away from acknowledging the limitations of pursuing social justice back in Old Testament times and—in what is one of the book’s important takeaways—now. Turning to the old text, Barak-Erez effectively mines new, refreshing, and often surprising insights, compelling readers to revisit and rethink their own perspectives and convictions. The analysis of the principle of “an eye for an eye,” (pp. 247-48), is a typical gem, arguing persuasively that retribution is not only a justification for imposing liability but also at the same time a call for proportionality and limiting the scope of liability. Continue reading "Biblical Insights for Lawyers"
May 2, 2024 Anders WalkerLegal History
Edward J. Larson will probably be banned in Florida. His new book, American Inheritance: Liberty and Slavery in the Birth of a Nation, 1765-1795, plunges headfirst into a roiling debate over America’s racist origins, a debate that splashed across Internet platforms five years ago when The New York Times Magazine published The 1619 Project, a collection of hard-hitting essays on America’s anti-Black past. Headed by investigative journalist Nikole Hannah-Jones, the project claimed that the true founding of the United States was 1619, the year the first Africans arrived in British North America, and that the true story of the United States was – and remains – one of relentless racism against Black people. Even the Revolution, argued Hannah-Jones, was motivated by a racist desire to preserve slavery.
Hannah-Jones received mixed reviews for her polemic from historians, but she captivated progressive audiences with a national speaking tour, a Hulu documentary, and a “1619 Curriculum” for public schools. Conservatives countered with their own “1776 Project” (sponsored by the Trump White House) and a Senate bill aimed at “Saving American History” sponsored by Tom Cotton, Marsha Blackburn, and others. “The 1619 Project is based on false narrative,” declared Senator Blackburn, “and a stack of lies about our country.”
Into this “partisan minefield,” as he puts it, steps Larson, a Pulitzer Prize-winning historian and law professor who takes up many of the points made by The 1619 Project and elaborates on them by deftly weaving together an array of familiar secondary sources and not-so-familiar primary ones. Out of this comes a frank look at just how prevalent racial prejudice was in America during the late 18th Century, both North and South. For example, Larson provides us with a startling look at the racial views of Benjamin Franklin, a Framer who did not own enslaved people but nevertheless imagined that America would be better off without Blacks. “Why increase Sons of Africa,” complained Franklin, “by Planting them in America [?]” Continue reading "Original Glue: The Role of Race at America’s Founding"
May 1, 2024 Andrew HalpinJurisprudence
The common practice of teaching law students the rules of precedent is a misguided one, if we take seriously what María Beatriz Arriagada has to say in her article in a recent issue of Ratio Juris. In “The Two Faces of Precedent: A Hohfeldian Look,” Arriagada offers a radical alternative to the conventional portrayal of precedent as a system of regulative rules.
Arriagada’s article stimulates and provokes across a range of issues. Commencing with a preliminary reflection on the nature of analytical legal philosophy/theory (Pp. 25-26), she offers a number of insights to challenge assumptions made on the way the practice of binding precedent works, in developing her own structural analysis of precedent. At the same time, Arriagada draws on a sophisticated understanding of the Hohfeldian analytical scheme in her efforts to bring precision to a detailed analysis of the actual workings of precedent. Continue reading "The Powers of Precedent"
Apr 30, 2024 Steve GoldLexEnvironmental Law
When young people accusingly complain that my generation unfairly saddled them with the problem of climate change, I like to remind them that my contemporaries and immediate forebears advocated for, enacted, and implemented–indeed, invented–modern environmental law in this country. However true it is that we failed to protect our heirs from climate change, we are bequeathing them a world that is demonstrably cleaner and healthier than it would have been absent the spate of environmental lawmaking that began in 1970.
In the articles reviewed here, two lions of the founding era, each writing with a younger co-author, remind us that the success of U.S. environmental law remains incomplete. Climate change, these articles point out, is not the only environmental problem of global scale and massive if unpredictable consequence–nor the only problem that environmental law has been unable to solve. Robert Adler and Carina Wells take on the law’s failure to deal with pollution from plastics. Mark Nevitt and Robert Percival tackle the law’s feeble response to PFAS (per- and poly- fluoroalkylated substances). We who once pondered the limits to growth must now confront the limits to law. Or at least the limits to existing U.S. environmental laws. Continue reading "The Limits to Law(s)"
Apr 29, 2024 Lisa Larrimore OuelletteIntellectual Property Law
Nikola Datzov & Jason Rantanen,
Predictable Unpredictability , __ Iowa L. Rev. (forthcoming 2024), available at
SSRN (Feb. 26, 2024).
It is hard to think of a patent doctrine—or indeed any doctrine in IP law as a whole—that has received more critical attention over the past decade than patentable subject matter. In a series of four cases from 2010 to 2014, the Supreme Court sparked an ongoing controversy by imposing sharp limits on patenting inventions such as medical diagnostics, human genes, software, and business methods. In the wake of these decisions, an invention may be groundbreaking and important, but nonetheless unpatentable if it falls into the Court’s implicit exceptions to patent eligibility for “laws of nature,” “natural phenomena,” and “abstract ideas.” Under the “Alice/Mayo” test, if a patent claim is “directed to” one of these ineligible concepts, it is patentable only if it also contains an “inventive concept” such that the claim “amounts to significantly more” than a patent on the ineligible concept.
These subject matter limits led to a barrage of criticism, much of which focused on the test’s unpredictability. The criticisms have come from judges, academics, practitioners, the DOJ, and even memes. Bipartisan legislation has been repeatedly introduced to address the “confused, constricted, and unclear” law. Senators have also tasked the USPTO with collecting public comments on the issue.
Yet, according to a new draft article by Nikola Datzov and Jason Rantanen, the narrative of unpredictability is on “shaky empirical ground.” Surprisingly, they argue that over the past decade, disputes about patentable subject matter have been more predictable than disputes about other patent doctrines. Datzov and Rantanen analyzed all patent eligibility decisions by the Federal Circuit between 2012 through 2022. This court hears appeals both from all district court patent litigation and from decisions by examiners at the USPTO. They found that the Federal Circuit not only affirmed lower tribunals almost 90% of the time, but also almost always affirmed on the same basis. These cases also involved fewer dissents than on other patent law issues. The authors are not arguing that the Alice/Mayo test is easy to apply, or that it is necessarily good policy. But their results should shift the focus of the ongoing patentable subject matter debates. Continue reading "The Surprising Predictability of Patent Eligibility"
Apr 29, 2024 Doron DorfmanEquality
In recent years, and certainly since Dobbs v. Jackson Women’s Health, grave concerns about reproductive rights have proliferated. While most of the discussion has been focused on attacks on the right to end a pregnancy and the child welfare system, other issues that fall within the umbrella of the reproductive justice movement also deserve serious attention. One of those aspects is “birth justice.”
In their canonical book Reproductive Justice: An Introduction, Lorretta Ross and Ricky Solinger acknowledge that “all people giving birth are entitled to safe, dignified, and compassionate health care” (p. 85). They view birth justice, defined as “the right to give birth with whom, where, when, and how a person chooses,” as a subset of reproductive justice (p. 96). Birth justice is an issue of equality specifically considering that maternal mortality rates of Black women are 2.6 times than those of white women. Yet, the role that the law plays in ensuring birth justice remains underexplored in the legal literature on reproductive justice. Elizabeth Kukura’s exciting work works to fill this gap in the literature while at the same time situating birth justice within the health law literature. Continue reading "Dealing with Doulas: Birth Justice, Delivery Room Conflicts, and the Rigidity of the Health Care System"
Apr 26, 2024 Bethany BergerLexNative Peoples Law
During Elouise Cobell’s campaign against federal management of Indian trust accounts, she learned that the U.S. did all sorts of things with the money. In the 1970s, for example, trust funds went to bailing out New York City and the Chrysler Company. Meanwhile, Native beneficiaries of the accounts couldn’t get payouts to rebuild destroyed homes or care for ill loved ones. And the records of who the accounts belonged to and what should be in them were out-of-date, kept in garbage bags and dilapidated boxes, destroyed by water and gnawed by rodents.
The history of federal Indian trust funds might be seen as simply another example of bureaucratic mismanagement and lack of concern for Indigenous property. But Emilie Connolly’s research shows that it is something more. In, Fiduciary Colonialism: Annuities and Native Dispossession in the Early United States, Professor Connolly examines the early history of such trust accounts to show that their creation and management was itself a tool of colonial domination. By holding and gradually paying out moneys owed to tribes, the United States could achieve expropriation without expensive wars, encourage tribal dependence, and invest the funds to finance further dispossession. As Connolly writes, “[a]nnuities and trust funds anchored . . . a mode of territorial acquisition and population management carried out through the expansion of administrative control over Native peoples’ wealth.” (P. 227.) Continue reading "Twisted Trust"
Apr 25, 2024 Jade CraigCourts Law
Aliza Shatzman, the founder of the Legal Accountability Project (LAP) and the author of The Clerkships Whisper Network, has kicked off a national conversation about the clerkship experience and lack of accountability for judges who mistreat their law clerks. It is important to continue to refine the information available to law students and alumni considering applying for clerkships. The many people who have great clerkship experiences should describe those experiences “in the rosiest of terms.” But referencing Charles Dickens’ A Tale of Two Cities, Shatzman identifies the paradox: “the best of circumstances, the worst of circumstances.” A clerkship lives at the extremes – if it is very good, it is wonderful and a blessing, and if it goes very badly, it can be the worst work experience one has ever endured. The work environment often revolves around one person – the judge.
Mistreatment does not affect all clerks equally, but may vary with the personal identity of the clerk. Some difficult work environments make it difficult for the employee to disentangle the mistake from the employer’s negative or abusive reaction. The employee starts to believe that perhaps it is their fault or they deserved the mistreatment. An employer who is a serial abuser often suggests the employee deserves the mistreatment, avoiding accountability for their actions or their part in the conflict. The first reaction for many employees is to internalize the criticism and blame themselves, deterring them from reporting the experience. Continue reading "The Uneven Impact of Mistreatment on Law Clerks"
Apr 24, 2024 Sam F. HalabiInternational & Comparative Law
As I have long argued, intellectual property represents a neglected dimension of the global structures affecting equity and redistribution, and I welcome a new volume dedicated to this essential nexus of law and justice, The Cambridge Handbook of Intellectual Property and Social Justice edited by Steven Jamar and Lateef Mtima. Although maintaining a general focus on intellectual property and social justice topics arising in the context of the United States, the volume includes a valuable section on “Intellectual Property Social Justice in Global Perspective” focusing on gender and development disparities. Featuring chapters from Zehra Betul Ayranci, J. Janewa Osei-Tutu, Mariana Bernal Fandiño, Marcela Palacio Puerta, and Metka Potočnik, Jamar and Mtima provide scholars of intellectual property and social justice one of the most important resources to date on how the control of access to innovation, images, and compositions both exacerbates inequality but also how those same intellectual property protections maybe restructured to ameliorate it.
This book is one I like a lot, and I hope others active in the study and shaping of intellectual property do as well. It is perhaps the most comprehensive volume on the juxtaposition of intellectual property and social justice—many scholars including myself analyze the socially beneficial and pernicious effects of current intellectual property approaches, but far fewer characterize them in such a specific way. Jamar and Mtima and their contributors have offered novel and creative recommendations to advance social justice through intellectual property. Indeed, Madhavi Sunder brings this point home in a particularly compelling way in her chapter on Intellectual Property After George Floyd. Continue reading "Rethinking Intellectual Property and Social Justice – A Rich Resource with Comparative Lessons"
