Oct 2, 2023 Anders WalkerLegal History
Pekka Hämäläinen has written a startling book. Building on his earlier histories of the Lakota and Comanche, Hämäläinen’s Indigenous Continent tells the entire saga of Native America, recasting it not as a story of dispossession and defeat, but resistance and – amazingly – resurgence. The story is counterintuitive, a story not simply of white genocide and plunder but also of Indian power and influence, a story of a complicated group of peoples who fought against Europeans for over 400 years, and fight on today.
Beginning his story in 11,000 BC, Hämäläinen traces Native Americans back to Asia, showing how large groups of people left for North America by traveling across land bridges and along kelp highways. Such people formed large, centralized civilizations in places like the Colorado Plateau and the Mississippi River Valley, fostering large-scale agriculture, developing political/religious elites, and constructing massive monuments.
Then came climate change. Continue reading "Complicated Continent: Pekka Hämäläinen and the History of Native America"
Sep 29, 2023 Gregory KeatingTorts
In On Rawlsian Contractualism and the Private Law, David Blankfein-Tabachnick and Kevin Kordana, Professors at Michigan State and Virginia Law Schools, respectively, argue that we are witnessing a fundamental shift in the way that legal scholars think about private law. “[N]ot long ago,” they tell us, “the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. . .. The conventional, indeed, the nearly universal view of Rawlsianism—the overwhelmingly dominant theory of liberalism and distributive justice—was that the private law lies beyond the scope of Rawls’s two principles of justice.” (P. 1657.) Now, private law scholars—in tort, but also in contract—are coming to think that these bodies of law are parts of what Rawls called “the basic structure of society.” Or so Blankfein-Tabachnick and Kordana argue, citing to, and drawing upon, the work of a dozen or so legal scholars, themselves (and myself) included.
Their paper makes an important contribution because the shift that they spot and argue for promises to reorient private law theory in a valuable way. Insisting on the “privateness” of private law threatens to trivialize fundamental legal fields. Blankfein-Tabachnick and Kordana are quite right to insist that contract, property, and tort engage fundamental questions of power and justice and that theories of private law must engage these questions. And turning private law theory in this direction might breed fruitful interaction with very different kinds of tort scholarship, such as the “social justice tort theory,” championed by Martha Chamallas and Sarah Swan. That scholarship, too, insists that tort law articulates basic terms of social interaction and therefore does (or fails to do) “social justice.” Continue reading "Shifting the Paradigm in Private Law Theory"
Sep 28, 2023 Rebecca CrootofTechnology Law
Jennifer Cobbe, Michael Veale & Jatinder Singh,
Understanding Accountability in Algorithmic Supply Chains (May 22, 2023), available at
Arxiv.
Most proposed regulations for algorithmic accountability mechanisms have a common feature: they assume that there is a regulatory target with the power to control the system’s inputs, structure, or outputs. Maybe it’s the algorithm’s creator, or the vendor, or the deployer—but surely there’s an entity that can be held to account!
In Understanding Accountability in Algorithmic Supply Chains, Jennifer Cobbe, Michael Veale, and Jatinder Singh upend that assumption. In ten tightly but accessibly written pages, they detail how there is often no single entity that may be legitimately held accountable for an algorithmic conclusion. This is partially due to the “many hands” problem that has already spurred arguments for strict liability or enterprise liability for algorithmic systems. But designing a governance regime is also difficult, the authors argue, because of how algorithmic systems are structured. The authors use the “supply chain” metaphor to capture the fact that these systems are comprised of multiple actors with shifting interdependencies and shared control, contributing varied data and changing elements of the infrastructure, all while data flows in multiple directions simultaneously. The difficulty in regulating algorithmic systems is not just that it is hard to identify which of many entities is the cheapest cost avoider or the one that can be fairly held accountable; instead, it may be impossible to identify which entity or even which combination of entities is causally responsible for any given output. Continue reading "Algorithmic Accountability is Even Harder Than You Thought"
Sep 27, 2023 Daniel ShaviroTax Law
Bradford DeLong’s career opus, Slouching Towards Utopia, is a very long – although, in my view, consistently illuminating and entertaining – work of economic history that only very briefly, for a few pages here and there, touches on the history of taxation. Why, then, do I regard it as offering a highly suitable subject for a Jotwell Tax column?
The broader answer to this question is that historical context is vital to understanding tax (like other) institutions and ideas and yet often is ignored, other than by tax historians. The narrower answer, illustrating this broad proposition, pertains to the particular context of the great intellectual shifts that have occurred over the last thirty-plus years, not just in legal academic thinking, including in tax, but in American intellectual and political life more generally. Continue reading "The Rise (And Fall?) of Neoliberalism In Tax"
Sep 26, 2023 Serena WilliamsProperty
Brandon M. Weiss,
Corporate Consolidation of Rental Housing & The Case for National Rent Stabilization, 101
Wash. U. L.R. __ (forthcoming, 2023), available at
SSRN (May 27, 2023).
Professor Brandon Weiss in his article, Corporate Consolidation of Rental Housing & The Case for National Rent Stabilization, posits that the increasing ownership of rental units by corporate landlords will only worsen an uncertain rental market, with more tenants threatened with eviction or living in poor quality units. As one policy option, he argues for federal incentives to promote the passage of rent stabilization laws.
When signing a lease, a tenant may initially believe that a landlord is a landlord – that it does not matter whether the rental unit is owned by an individual or by a corporate entity. The rent must be paid regardless of who is receiving it. However, that perception may not be accurate. Corporate landlords may more often seek to defer maintenance, raise the rent, or evict tenants. Continue reading "A Different Kind of Landlord"
Sep 25, 2023 Jill FamilyLex
Hundreds of thousands of individuals relied on the Deferred Action for Childhood Arrivals (DACA) policy in making major life decisions, such as where to live and whether to invest in higher education. The policy promised some without legal immigration status a chance to remain in the United States with work authorization. If certain criteria were met, the Department of Homeland Security would consider whether to grant a type of prosecutorial discretion called deferred action. DACA was created through a guidance memorandum. Then Secretary of Homeland Security Janet Napolitano issued a 2012 memo to her department explaining the details of the policy, and then the agency implemented it. In 2017, the Trump administration attempted to end DACA by issuing another memo. In 2020, the Supreme Court concluded that President Trump’s attempt to end DACA was unlawful. The Court reached that conclusion in part because the Trump administration failed to adequately consider the reliance interests of DACA beneficiaries in determining to end the policy.
In her article Administrative Reliance, Professor Damon-Feng dives into the reliance phenomenon in administrative law. One administration develops a policy, many rely on it, and then the next administration changes course. Should reliance interests matter when courts review the change of course? If so, how much, and why? Professor Damon-Feng concludes, based on her examination of the implicated values, that the Supreme Court should adopt a more purposeful and disciplined approach to considering reliance interests. Continue reading "Making Judicial Review of Reliance More Reliable"
Sep 22, 2023 Sida LiuLegal Profession
In The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe, Tommaso Pavone provides a paradigm-shifting perspective on the roles of judges and lawyers in the development of the European Union’s legal system. Unlike many works in the legal profession literature that portray judges as the dominant figures and lawyers as subordinate, Pavone presents a compelling argument that lawyers, in fact, took the lead in constructing the laws and regulations of the European Union. Using 353 interviews with legal professionals across Italy, Germany, and France, as well as participant observation in national courts, Pavone offers a richly detailed account of how lawyers shaped the legal construction of the European Union.
Pavone’s book challenges the widely held belief, especially among Anglo-American scholars, that judges enjoy a high degree of autonomy and direct power to make law. In contrast to their common law counterparts, continental European judges are described in the book as legal bureaucrats who are occupied with routine tasks and face significant internal and external controls from the judiciary and other branches of the state apparatus. Pavone’s extensive interviews and fine-grained ethnographic accounts reveal that European judges were generally uninterested in legal innovation, particularly when it comes to the application of EU rules in the early years of the European Union. This finding contradicts the mainstream “judicial empowerment” thesis in the international law literature, which posits that the construction and dissemination of EU law were primarily the result of European judges’ judicial innovation. This is a key contribution of the first half of the book, shedding new light on the limited role of judges in the construction of the EU legal system. Continue reading "The Silent Heroes of European Legal Integration"
Sep 21, 2023 Maris KöpckeJurisprudence
Some recent debates in general jurisprudence concern so-called moral impact theories of law, chiefly in the version proposed by Mark Greenberg. Greenberg’s theory has both staunch supporters and fierce critics. There are also a good number of scholars who look on these debates with perplexity and some dismay. Greenberg provocatively portrays law as the moral impact of institutional action. He presents his moral impact formula as the “legally correct” way to figure out the law’s content on the part of practitioners. His proposal has attracted some fine scholarship denouncing ambiguities within the account, and inconsistencies between the account and legal practice.
Watson’s piece takes these concerns a valuable step further. He argues that Greenberg’s theory distorts not only what practitioners count as law, but also how they reason to that effect. This is the kind of contribution from which one can learn, positively, about legal reasoning and practice, rather than just, negatively, where someone else goes wrong. Continue reading "On Moral Impact and Legal Practice"
Sep 20, 2023 Alexandra RobertsIntellectual Property Law
Michael Mattioli,
Conjuring the Flag: The Problem of Implied Government Endorsements, 83
Md. L. Rev. __ (forthcoming, 2024), available on
SSRN (Feb. 22, 2023).
When shoppers see “Now FDA approved!” on a bottle of Excedrin, does it make them more likely to select that option over a competing product? Will consumers choose a brand of dietary supplement marketed as a “patented blend” over one that doesn’t make patent claims?
In Conjuring the Flag: The Problem of Implied Government Endorsements, Michael Mattioli argues that advertisers use claims about intellectual property and regulatory approvals to mislead consumers about their products’ quality, safety, efficacy, or legitimacy. By reference to or use of the US Patent and Trademark Office or the Food & Drug Administration, advertisers borrow those agencies’ halos to imply that branded products from bugspray to hairspray to nasal spray are superior to competitors’ versions. Mattioli cites survey evidence finding most consumers interpret government stamps of approval like “FDA-approved” and “patented” as endorsements of quality. In Conjuring the Flag, he amasses data on the different ways advertisers reference agency or IP approval to appeal to consumers, highlights why that strategy is misleading, and proposes ways FTC could curb it. Continue reading "Name-Dropping Government Agencies in Advertising"
Sep 19, 2023 Hoi KongInternational & Comparative Law
Kristen Rundle is one of the world’s leading theorists of the rule of law. Revisiting the Rule of Law , evidences her extraordinary command of the theoretical literature, her deep familiarity with public law developments around the world, and the characteristic clarity that she brings to complex debates. Revisiting the Rule of Law is a tour d’horizon that is accessible to newcomers to those debates and enlightening to those who are well-versed in them.
Part I surveys methods by which the rule of law is theorized. Rundle begins by describing a series of recurrent themes in the literature. The first is that the rule of law has legal and political dimensions. As a political idea, the rule of law requires that “the rulers and the ruled, the government and the governed—must each be subordinate to the demands of law” (P. 5). By contrast, the legal dimension of the rule of law focuses “on how the institutions and procedures of a legal system constitute, express and sustain” (P. 5) this relationship of mutual subordination to the law. Part I then moves onto other classic themes in the rule of law literature: the meaning and significance of arbitrary power; the contrast between the rule of law and rule by law; the rule of law’s status as an ideal; and the essentially contested nature of the concept of the rule of law. Continue reading "Rundle on the Rule of Law"
