Jan 18, 2024 Elena LarrauriCriminal Law
The paper I am reviewing is noticeable because it focuses on “open prisons.” Generally, prison scholars tend to speak and write about “prisons,” and when comparing among countries, the comparison tends to be limited to imprisonment rates. In some rare cases the sentence length is also discussed. In their article Contrasts in freedom: Comparing the experiences of imprisonment in open and closed prisons in England and Wales and Norway, authors Kristian Mjåland, Julie Laursen, Anna Schliehe and Simon Larmour expand the discussion by addressing the type of prisons. I welcome this opportunity to talk about open prisons.
The paper sets out to determine if open and closed prisons share the same basic characteristics, or if, on the contrary, one could defend that open prisons are experienced as less harmful. In order to answer this question, the paper uses 728 interviews to find out prisoners’ subjective experience of being imprisoned in Norway or England and Wales in an open or closed prison. The paper also explores the use and functions of open prisons in both countries. Continue reading "Open Prisons: For a Less Harmful Prison"
Jan 17, 2024 Linda S. MullenixCourts Law
Bryan Lammon,
Manufactured Finality, 69
Vill. L. Rev. ___ (forthcoming, 2024), available at
SSRN (Sept. 14, 2023).
In the great restructuring of first year civil procedure courses during the 1990s, one of many topics to fall victim to civil procedure triage was the final judgment rule and doctrines of appellate jurisdiction. Historically, the Supreme Court was highly engaged with the final judgment rule. During the 1980s the Court — seemingly obsessed with the collateral order doctrine — issued new decisions nearly every year concerning whether various court orders fell within this judicially created exception to the final judgment rule. But then the guns of the collateral order doctrine fell silent. For nearly four decades the Court did not consider the rule and its exceptions until Microsoft Corp. v. Baker in 2017.
In Manufacturing Finality, Bryan Lammon resuscitates academic discussion of the final judgment rule and the new inroads on interlocutory appeals presented by Microsoft. Making passing reference to statutory exceptions in Rule 54(b) and 28 U.S.C. § 1292(b) and no mention of the collateral order doctrine or mandamus, Lammon focuses on the finality that the Microsoft plaintiffs unsuccessfully sought to manufacture, which Lammon characterizes as the new “hot topic” in procedure. Continue reading "Not the Final Word or Judgment on Manufactured Finality"
Jan 16, 2024 Aditi BagchiContracts
In her beautifully written article, Borrowing and Belonging, Abbye Atkinson argues that, because consumption is central to dignity in American culture, bankruptcy rules should be altered to promote the restoration of debtors’ dignity. At present, she argues, the rules of bankruptcy strip debtors of dignity even as they purport to offer a “fresh start”. (P. 1369.)
In the first part of her article, Professor Atkinson reviews the literature arguing that consumption has a distinctive cultural significance in American life. It is key to full participation in a common way of life, and is perceived as essential to full citizenship. In the next part, Atkinson describes the present bankruptcy regime as requiring an exchange of dignity for relief, a trade that she argues is inconsistent with the idea of consumption-as-dignity that seems to fuel the credit economy to begin with. She points to rules that mandate publicity regarding a debtor’s finances and rules that effectively restrict access to future credit. Finally, she argues for an alternative model of personal bankruptcy that “disentangles relief from ostracism”. (P. 1378.) Continue reading "Reforming Bankruptcy to Promote Debtor Agency"
Jan 15, 2024 Mila SohoniAdministrative Law
Adam Crews,
The Executive Power of the Federal Courts, 56
Ariz. St. L.J. __ (forthcoming 2024), available at
SSRN (September 5, 2023).
As I write this Jot, it’s entry-level hiring season. Scores of exciting candidates are crisscrossing the country to present new papers, eat dinners, and tour campuses and neighborhoods. Over the years, I have come to observe that there are a few things that a candidate can reliably bet will occur during a job talk at my law school. Someone will point out your paper’s relevance to some completely unexpected area of law, or vice versa. Someone’s phone will ring while you are speaking—to the rest of the faculty’s collective mortification—and then be immediately, furiously silenced. And—if you are talking about a subject in constitutional law, administrative law, or federal courts—someone will probably ask you something about how your paper relates to INS v. Chadha.
Chadha is a staple touchpoint because it tees up a fundamental definitional conundrum that all three fields grapple with in various ways: what counts as executive power, or judicial power, or legislative power, in our system of government? If our legal system is one of separation of powers, it would seem to be important to know which is which. Yet, in the fashion of an ancient parable, the opinions in Chadha reach different answers concerning how to characterize the particular type of action at issue in that case. To the Court, an action by a house of Congress to veto a suspension of deportation seemed “essentially legislative in purpose and effect,” and therefore subject to bicameralism and presentment requirements. But, as Justice White pointed out, the Court’s opinion also characterized the suspension of deportation as an executive power; if that is the case, then why isn’t an action that merely blocks that suspension therefore an exercise of executive power, too? Justice Powell, for his part, saw things another way entirely: it was “clearly adjudicatory,” he wrote, for a house of Congress to decide whether or not Jagdish Chadha should or should not be deported. So Chadha was very much on my mind as I read The Executive Power of the Federal Courts, an interesting new paper by Adam Crews. Continue reading "Whose Power is it Anyway?"
Jan 12, 2024 Charlotte CraneTax Law
The recent work of David Weisbach and Daniel Hemel, including the Legal Envelope Theorem, engages with traditional questions about tax systems in important new ways. Legal tax scholarship has long explored the interactions between tax law and taxpayer behavior and has often used intuitions from economics in doing so. But only haphazardly has this work touched on the effects of nontax institutions on the functioning of tax systems. The Legal Envelope Theorem looks at these interactions in very deliberate ways.
At the risk of oversimplifying, Weisbach and Hemel’s thesis is that changes in non-tax legal rules and institutions that at first might appear to be undesirable can be desirable when their effects on tax systems are taken into account. More precisely, a nontax change that makes almost no change in overall well-being can make a significant after-tax increase in overall well-being if the non-tax change increases taxable income, increases collection of taxes, or increases potential for redistribution. Continue reading "Identifying and Exploiting the Relationship between Legal Rules and Tax Systems"
Jan 11, 2024 Melissa MortazaviLegal Profession
Milan Markovic,
Charging Abortion, __
Fordham L. Rev. __ (forthcoming, 2024), available at
SSRN (September 13, 2023).
While Americans today are often starkly divided, they appear oddly unified in their general skepticism of American legal institutions. What was once countercultural is mainstream, as anti-establishment sentiment against “the system,” once reserved for hippies, is the common rallying cry of protesters and political leaders alike.
Enter Milan Markovic’s article, Charging Abortion, which makes a simple, unpopular, and therefore courageous point: maybe parts of the system can (and do) work. More specifically, this article makes the case that prosecutorial ethics can work to provide a thoughtful rubric to exercise principled discretion in difficult situations. Taking up the hot button issue of abortion (now in a post-Dobbs world,) Markovic tries to puzzle through a fundamental question: how should prosecutors opposed to criminalizing abortion individually do their jobs in anti-abortion states? Continue reading "A Radical Assertion"
Jan 10, 2024 Joseph SlaterWork Law
Jeffrey M. Hirsch,
Labor Law’s Impact on the Post-Dobbs
Workplace, UNC Legal Stud. Rsch. Paper No. 4557256, available at
SSRN (Aug. 30, 2023).
Dobbs v. Jackson Women’s Health Organization, 579 U.S. 2228 (2022), meant that the ability to choose an abortion was no longer a right protected under the U.S. Constitution. Instantly, pre-existing bans or extreme limits on abortion in some states went back into effect, and other states adopted new bans and restrictions. This is likely not news to readers of this blog. What likely will be news—and useful news at that—is that labor law may help both unionized and non-unionized workers fight for and achieve abortion-related benefits at the workplace. Jeffrey Hirsch’s Labor Law’s Impact on the Post-Dobbs Workplace is a timely, informative, and well-balanced approach to this issue that I recommend to anyone interested in the intersection of workplace rights and reproductive rights.
Hirsch starts by noting that “[a]ccess to abortion and other health care depends on employers to an unappreciated degree.” That’s because most health insurance is provided by employers. Further, employer policies involving leave and scheduling can also affect abortion access. Continue reading "Labor Law and Reproductive Rights"
Jan 9, 2024 Alexander Boni-SaenzTrusts & Estates
We stand at the precipice of a major transfer of wealth: in the coming years, trillions of dollars will pass through the inheritance system to the next generation from millions of decedents. Potential beneficiaries may be tempted to engage in wrongdoing to alter or accelerate these transfers to their own benefit. In Crimes Against Probate, Kevin Bennardo and Mark Glover focus on one such type of wrongdoing: interference with wills. Whether it is through undue influence or fraud, will forgery or will suppression, the inheritance system must deal with this threat to the testator’s donative wishes.
Bennardo and Glover argue that the current legal regime does not adequately deter this type of misconduct, and they provide two major contributions to the literature. First, they offer a clever reconceptualization of the misconduct at issue as evidentiary rather than proprietary in nature. Second, they supply a concrete reform proposal, which is a new criminal offense of intentional or willful interference with probate. Scholars of both criminal law and trusts and estates will have much to learn from this cross-cutting piece of legal scholarship. Continue reading "Crimheritance Law?"
Jan 8, 2024 Ellen BublickTorts
If one party argues that another is guilty of negligence for breathing air, no court should allow that claim or defense. Why not? A court might say that breathing air is not negligent in the breach sense—it is reasonable to breathe (everyone does it) and, at least for now, its benefits outweigh its costs. Another way that a court could reject the breathing-air contention would be to say that the breathing party has “no duty” not to breathe. By saying that the party has no duty, the court would recognize an entitlement in the breather. When courts recognize that actors enjoy some entitlements in their daily lives, they cannot avoid deciding which entitlements come with the parties to court, when parties should have those entitlements, and with respect to whom they should apply.
In Professor Eugene Volokh’s important article, The Right to Defy Criminal Demands, Volokh makes the powerful claim that in both civil and criminal cases, courts implicitly do, and explicitly should, “protect defiance of criminal demands against legal liability even when such defiance can increase the risk that the criminal will harm third parties.” (P. 416.) The issue is one of principle. Volokh calls it a “right,” though in a Hohfeldian sense it may be a privilege/liberty or no-duty rule. Continue reading "The Rights That Come With Us to Court: No-Duty Rules for the Victims of Crime and Criminal Threats"
Jan 5, 2024 Stacy-Ann ElvyTechnology Law
Schools increasingly use various technologies to monitor and collect information about students. The COVID-19 pandemic, which led to a large number of school closures and a transition to online learning, has also raised alarming questions about student privacy. For instance, virtual software used during remote exams to monitor students can scan students’ bedrooms, collect data from the microphones and cameras of students’ computers, and discern students’ keystrokes. In her article, The Private Life of Education, Professor Fanna Gamal makes a noteworthy contribution to scholarship in the privacy law and education law fields by highlighting embedded assumptions and significant shortcomings in privacy law governing student data. In doing so, she advances existing debates on the legal conception of information privacy. Gamal argues that student privacy laws’ immoderate focus on nondisclosure of students’ data outside of the school context fails to effectively consider the various ways in which schools can serve as the primary perpetrators of student privacy violations. She further contends that schools’ data practices may have disproportionate negative implications for members of historically marginalized groups, such as disabled and low-income students.
Gamal expertly critiques the provisions of the Family Educational Rights and Privacy Act (FERPA). She argues that FERPA’s excessive focus on the prohibition of data disclosures outside of schools spuriously assumes that schools should, by default, receive treatment as privacy protectors that act in the best interest of students’ privacy. Gamal aptly acknowledges that FERPA’s heavy reliance on non-disclosure is not unique to American privacy law. However, after unpacking the legal conception of student data privacy, Gamal goes on to convincingly argue that student data privacy law also assumes that students do not have a significant privacy interest in “data creation, collection and recording.” (P. 1319.) Continue reading "Centering Educational Institutions as Potential Sources of Student Privacy Violations"
