Oct 16, 2023 Helen NortonConstitutional Law
When (if ever) should we decline to apply longstanding First Amendment doctrine to technologies and practices unknown to, and unknowable by, the 20th-century Court that developed that doctrine? This question requires us to consider whether and when 21st-century expressive technologies are distinguishable from—or instead analogous to—older forms of expression in meaningful ways. As Genevieve Lakier observed in a related context, “analogies will prove useful only to the extent they are used thoughtfully, to illuminate the similarities and dissimilarities that matter for the purposes of the law.”
As courts and legislatures engage with such analogical questions with growing intensity, their high stakes become increasingly clear. Examples include the debate—now before the Supreme Court—as to whether social media platforms’ content moderation practices are (or are not) similar to the curatorial discretion exercised by newspaper editors, such that they do (or don’t) deserve the same First Amendment protections. So too are courts and policymakers now struggling with whether the products of artificial intelligence (including, but not limited to, chatGPT) are similar to or meaningfully different from human expression for First Amendment purposes (consider, for example, here, here, and here). Continue reading "Reconsidering the Public Square"
Oct 13, 2023 Amy MonahanHealth Law
Valarie Blake,
The Freedom Premium,
WVU Coll. of L. Rsch. Paper, No. 2023-010 (forthcoming), available at
SSRN (Mar. 13, 2023).
In the United States, universal health care is frequently derided as anti-American and liberty-infringing. In The Freedom Premium, Professor Valarie Blake turns this argument on its head by systematically exploring the ways in which our fragmented system of health care coverage influences the fundamental life choices of Americans – where and how much they work, when or if they marry or divorce, and where and with whom they live. Our current approach to health care coverage, she argues, unduly constrains these personal choices and, if freedom is a primary consideration, universal coverage is the answer.
To make this provocative argument, Professor Blake begins by establishing what she terms the “freedom premium” imposed by our system of health care finance, for both means-tested public programs and employer-sponsored insurance (ESI). The freedom premium refers to the incentives embedded in the eligibility provisions and coverage terms of a particular source of health care coverage that influence core social choices. Rather than relying solely on statutory terms to establish the relevant freedom premia, Blake interviews nearly two dozen individuals who have directly grappled with these and other trade-offs inherent in obtaining health coverage. Professor Blake finds, perhaps not surprisingly, that public programs tend to impose the most significant freedom premia on participants, primarily in the areas of work and marriage. Continue reading "Freedom and Health Care"
Oct 12, 2023 Rachel RebouchéFamily Law
Meghan M. Boone & Benjamin J. McMichael, Reproductive Objectification, __
Minn. L. Rev. __ (forthcoming 2023) available at
SSRN (August 25, 2023).
Meghan Boone and Benjamin McMichael’s forthcoming article, Reproductive Objectification, blends theoretical and empirical methods to argue that fetal personhood laws, in objectifying pregnant people, correlate with increased rates of intimate partner violence and violence against women. The authors examine three types of laws – feticide laws, advanced directive laws that override the wishes of pregnant patients, and civil commitment of pregnant people. By pulling three types of law together under the ambit of fetal personhood, the authors begin their piece with the insight that personhood laws are far reaching and longstanding. Boone and McMichael summarize their main points in this way:
First, if fetuses are full, legal people, and the law cannot comprehend “two physical bodies” that “occupy the same place at the same time,” then the potentially pregnant person must not truly be a person – but something else. Next, if potentially pregnant people are not fully human – not legal subjects – then they are instead objects or reproductive vessels. Finally, if potentially pregnant people are objectified as reproductive vessels, then they are vulnerable to the same types of violence that all dehumanized and objectified people have been subject to across time and history. (Pp. 15-16.) Continue reading "Fetal Personhood as Violence"
Oct 11, 2023 Erez AloniEquality
A tidal wave of anti-trans legislation is washing over the United States and across the world. The Trans Legislation Tracker reports over 566 anti-trans bills were introduced in the US in 2023 alone, with 80 passed and over 350 still active. The restrictions take the form of barriers to healthcare access, legal recognition, education, bathrooms, athletics, and openly existing as transgender in public schools. Advocates increasingly justify these measures as necessary to defend cisgender women and girls. As one example, the Preventing Violence Against Female Inmates Act of 2023, a bill introduced to the US Senate, would require that prisoners be housed based on their sex assigned at birth. Introduced by male senators only, Senator Tom Cotton claimed it “protects incarcerated women from rape and crimes,” since housing “men ‘identifying’ as women with females puts them at risk.” This strategy of cis men pushing legislation that purportedly shields cis women from harm now features prominently in lawmaking globally.
In their compelling essay, Cis-Woman-Protective Arguments, Chan Tov McNamarah names this rationale “cis-woman protective” (CWP) reasoning and exposes its flaws. McNamarah reveals the ubiquity of CWP arguments across domains, tracing their oppressive history steeped in gender inequality and paternalism, faulty logic, and actual harm to cis women through stereotyping. Continue reading "Gender Bullies in Feminist Costumes"
Oct 10, 2023 Maartje van der WoudeCriminal Law
As a (socio-)legal scholar interested in the world of borders and migration, I always feel rather inapt when people ask me about the ‘technological dimension’ of bordering. This dimension, although extremely central and crucial to understanding current day bordering practices both from a legal and an empirical point of view, seems to be an area that requires specific expertise that I do not have. Therefore, I am always on the lookout for articles to fill in this gap. Finding Valeria Ferraris’ article that not only touches upon the legal and technological aspects of the digitization of borders in Europe but that also reflects upon this development through a more sociological lens felt like finding a little gem that allowed me to feel updated on this ever-moving and developing sub-area of border studies. And, as is often the case, the article shows how, for legal scholars, it is also crucial to get an insider view and understanding of the workings of the law in practice. With developments in the world of data and technology moving so rapidly, it is important to keep track on whether the law – and in particular legal protection – is moving at a similar speed.
The article brings together the author’s multiple year-studies of the transformation of border control practices into practices driven by data processing and guided by all sorts of technologies. The article adds to that existing line of research an interesting new take on the concept of border performativity as used by Wonders in her 2006 publication Global flows, semi-permeable borders and new channels of inequality: border crossers and border performativity. As Ferraris explains, while citing Wonders, the concept of border performativity aims to ‘explain how borders are not only geographically constituted, but are socially constructed via the performance of various state actors in an elaborate dance with ordinary people who seek freedom of movement and identification. This dance is not only choreographed by state policies and laws, but it is also increasingly shaped by larger global forces’(P. 5, citing Wonders 2006: 64). Whereas the notion of border performativity has been used and reflected upon by various scholars working in the ever-expanding domain of border and migration studies, Ferraris adds to the existing literature by investigating ‘how data transforms both the State and the migrants’ border performance’ (P. 5). Continue reading "Europe’s Technology-Driven Borderscape"
Oct 9, 2023 Howard M. WassermanCourts Law
Much has been written (and reviewed) about the modern Supreme Court’s legitimacy and about reforming or restructuring the Court to pull it from this crisis.
Benjamin Johnson identifies a century-old power-grab as an overlooked cause for this crisis: Congress made the Court’s appellate jurisdiction almost entirely by discretionary writ of certiorari in 1925 and the Court within less than a decade arrogated power to use certiorari to select and decide discrete legal questions rather than to hear and resolve entire cases. The resulting system is not inherent in the “judicial power” granted in Article III, not authorized by statutory text, and not intended by Congress; in fact, it contradicts the Justices’ representations in lobbying Congress to eliminate mandatory jurisdiction. By asking and answering specific constitutional questions of its unilateral choosing, the Court “no longer decides cases,” in turn undermining its role as an appellate court and the logical and policy bases for its role as (final?) constitutional arbiter. Continue reading "Questioning Selection, The Supreme Court, and Legitimacy"
Oct 6, 2023 Bill BrattonCorporate Law
We in business law tend to be creatures of the law reviews. Good new books don’t come along very often. When one does appear, it is doubly welcome. A History of Securities Law in the Supreme Court, by A.C. Pritchard and Robert B. Thompson, recently published by Oxford Press, is that rare, good book. It is absolutely, doubly welcome.
Pritchard and Thompson present every one of what turns out to be 134 cases. For the reader it is a bit like taking a law school course—the material goes case by case. This may not sound enticing, but please believe me when I say that it is, for the authors are master teachers. It is just that the medium is the written word rather than an oral presentation. Excellent writing is called for and Pritchard and Thompson answer the call. This book is fun to read. Continue reading "Securities at the Supremes"
Oct 5, 2023 Robert HillmanContracts
Yehonatan Givati, Yotam Kaplan, and Yair Listokin,
Excuse 2.0, __
Cornell L. Rev ___ (forthcoming), available at
SSRN (June 1, 2023).
Excuse 2.0 is worth a careful read. The article supports contract law’s current treatment of the impossibility, impracticability and frustration doctrines despite the authors’ conclusion that these excuse doctrines are “notoriously vague.” In fact, according to the authors, this is exactly what we want and should expect of law that excuses promisors from their contract obligations in the face of what the authors refer to as systematic risk. Although the authors concede that “[m]ost risks fall on a spectrum between purely idiosyncratic and purely systematic,” (P. 21) the latter risk, the authors explain, affects populations, such as pandemics and wars whereas idiosyncratic risk impacts only individuals, such as the risk of fire to a promisor’s premises. An important thesis of the article is that in systematic risk situations ambiguous excuse law promotes compromise and loss sharing that lessens economic havoc in the long-term, such as bankruptcies.
The authors reason that when promisors cannot perform “through no fault of their own,” (P. 28) in the face of uninsurable risks such as a pandemic, excuse doctrine reduces the costs of breakdown to both parties, neither of which can bear the risk on their own. If the law that determines obligations of the parties in such situations is ambiguous, the authors argue, renegotiation, not lawsuits, is the likely result. “In such a situation, the parties will probably settle, to avoid the uncertainty associated with trial, and the costly process of litigation…[T]he payment they will agree on in their settlement…will reflect the uncertainty of the legal outcome.” (P. 33.) Continue reading "Excuse 2.0: A Macroeconomic Model of Contract Excuse"
Oct 4, 2023 Christopher WalkerAdministrative Law
Emily Chertoff,
Violence in the Administrative State, 112
Calif. L. Rev. __ (forthcoming 2024), available at
SSRN.
With all the changes swirling in administrative law, one trend seems to be getting less attention than perhaps it should: the death of regulatory exceptionalism in administrative law. For decades, many regulatory fields—such as tax, intellectual property, and antitrust—viewed themselves as exceptional, such that the normal rules of the road in administrative law do not apply. The Supreme Court and the lower courts have increasingly rejected such exceptionalism in many regulatory contexts, emphasizing that the Administrative Procedure Act (APA) and related administrative law doctrines are the default rules unless Congress has clearly chosen to depart from them by statute in a particular regulatory context.
Immigration exceptionalism, however, remains a puzzle. Not because administrative law does not apply. It does. But, as Jill Family has detailed, Congress has departed from the APA defaults in many respects. As a constitutional and interpretive matter, moreover, immigration regulation operates against the backdrop of the plenary power doctrine. As more administrative law scholars have turned to immigration law (and vice versa), deeper insights have emerged to better situate immigration regulation in the modern administrative state. Immigration law scholars and newer voices in administrative law have played a critical role in moving the field forward. Here, I want to highlight one such newer voice, Emily Chertoff, whose article Violence in the Administrative State makes a promising contribution. Continue reading "Revisiting Immigration Exceptionalism in Administrative Law"
Oct 3, 2023 Charles A. SullivanWork Law
Camilla A. Hrdy & Christopher B. Seaman,
Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, 133
Yale L. J. __ (forthcoming 2023), available at
SSRN (Mar. 15, 2023).
Over the last decade or so, there have been remarkable developments in the law’s approach to employee noncompetition agreements (NCAs). After years of little movement, many states have recently restricted noncompetes (for example, by barring them entirely for lower-compensated workers), while a few jurisdictions (including Massachusetts, D.C., and Minnesota) have taken more dramatic steps to rein in their use. And further change may be in the offing, including the Uniform Law Commission’s (ULC) proposed Uniform Restrictive Employment Agreement Act, the Federal Trade Commission’s proposed rulemaking that would largely bar NCAs, and the National Labor Relations Board’s challenge to using noncompetes for covered workers.
But not everyone realizes that these changes may reach contract terms beyond those formally phrased in terms of restricting a worker’s post-employment competition. Indeed, both the ULC and the FTC actions would reach contracts framed as barring disclosure of confidential information when such an agreement has effects similar to those of a noncompete. Continue reading "Turning NDAs into NCAs"
