Jul 25, 2023 Natalie RamTechnology Law
In April 2023, the State of Idaho enacted legislation making it a felony to help a minor obtain an abortion (or medication to induce abortion) by “recruiting, harboring, or transporting the pregnant minor within this state.” With more than a third of U.S. states having severely restricted or outright prohibited access to abortion within state borders, Idaho has now turned its attention to making it more difficult for at least some of its citizens to travel out of state to obtain abortion care. The legislation explicitly rejects as a defense that the provider of abortion services is in another state. Abortion care is not the only type of healthcare service that has raised interjurisdictional conflicts. As of April 2023, at least thirteen states have banned some or all gender affirming care for minors. In some states, government officials have attempted to define gender affirming care as child abuse, which would arguably support removing resident children from parental custody even if the contested care were sought beyond the state’s borders.
In response, other states have enacted legislation intended to shield patients, providers, and others who facilitate care that is lawful within that state from being prosecuted or sued elsewhere. Connecticut, which was the first state to enact such protections, largely prohibits healthcare providers from turning over abortion records in out of state legal proceedings without the patient’s explicit consent and bars state judicial authorities from issuing subpoenas related to reproductive services unless there is an equivalent cause of action under Connecticut law.
Yet, as Carly Zubrzycki demonstrates in her new article The Abortion Interoperability Trap, laws like Connecticut’s “miss[] a crucial piece of the puzzle: medical records are widely shared across state lines to facilitate patient care.” As Zubrzycki explains, these new state laws designed to protect reproductive and gender affirming care “are generally limited to preventing providers and other covered parties from directly sharing information in formal proceedings.” They do not prevent, and indeed often explicitly permit, sharing of patient records across state lines for purposes of patient care. The result is that these statutes largely fail to provide the protection they tout. “The reason is simple: in-state providers subject to a safe-haven law will, in the ordinary course of business as their patients seek care in other states, share medical records with out-of-state providers who are not subject to that law and who can therefore easily be asked to hand over the records in litigation.” This gap between what abortion-protective laws promise and what they genuinely offer is what Zubrzycki calls abortion’s “interoperability trap.” In this timely and insightful article, Zubrzycki offers not just a diagnosis but refreshingly practical solutions. Her work is already having a practical and important impact. Continue reading "Generating Genuine Data Protection"
Jul 24, 2023 Nicole Stelle GarnettProperty
Patrick E. Reidy, C.S.C.,
Sacred Easements, __
Va. L. Rev. __ (forthcoming), available at
SSRN (June 26, 2023).
Patrick Reidy’s forthcoming article, Sacred Easements, explores whether private law—and in particular the law of property, rather than public law, might provide a more effective means of protecting indigenous sacred sites. In particular, he explores whether tribes employ the law of servitudes—specifically easements—and common law rules respecting custom to secure access to (and protection) of their sacred sites.
Native Americans’ efforts to employ the traditional public law tools of religious liberty protection—for example, the First Amendment’s Free Exercise Clause, the Religious Freedom Restoration Act, and the Religious Land Use and Institutionalized Persons Act—to shield their sacred sites from desecration usually fall short. Continue reading "Can Property Law Protect Indigenous Sacred Sites?"
Jul 21, 2023 Maximo LangerCriminal Law
Trevor George Gardner, Rethinking Racial Equity in Criminal Procedure, 171 U. Pa. L. Rev. __ (forthcoming 2023).
After decades of a one-way ratchet towards more punitive criminal law policies that disproportionality punished African Americans, reform and transformative agendas have gained some momentum in the United States. Between 2010 and 2020 the combined state and federal imprisonment rate decreased 28%. After many years of having the largest incarceration per capita in the world, as of January 2023, the United States ranks fifth in the world, according to some sources. In 2007, the incarceration rate per 100,000 of Black people was 1,143, while in 2020 it was 662. This reduction of 42% was larger than the 35% reduction for all groups in the same period.
However, as Professor Gardner documents in his article, Rethinking Racial Equity in Criminal Procedure, deep racial disparities in the American criminal legal system remain. African Americans continue to be killed by the police, stopped, arrested, jailed, and incarcerated at higher rates than white Americans. In his piece, Gardner critically and lucidly discusses the two main ongoing efforts to advance racial equity within criminal procedures: the reform platform and the abolition platform. Continue reading "Racial Equity, Reform, and Abolition in the American Criminal Legal System"
Jul 20, 2023 Reid WeisbordTrusts & Estates
Some cultures revere their elders. Ours does not. Ageism is illegal in certain contexts but remains far too prevalent in modern discourse, often imbued with sexism. Elder abuse and financial exploitation of older persons are on the rise. Even respected voices from the medical community have begun to question the social utility of longevity: At age 57, bioethicist Ezekiel Emmanuel controversially declared that he would refuse life-extending medical treatment in his elder years because he does not believe most people “continue to be active and engaged and actually creative past 75.” Dr. Emmanuel acknowledged the existence of outliers, but his gloomy claim about elder productivity is certainly contestable. Surely you can think of senior “outliers” in your own life. My mother, for instance, began practicing law in 1970 and still enjoys maintaining a full caseload with enough work to overwhelm any first-year associate. I clerked for similarly inspirational federal judges who heard and continue to hear cases in their late 80s. But even conceding that productivity declines with age, I hope most readers would agree that respect, dignity, and fairness under the law should never hinge on one’s economic or creative output.
In Family Law for the One-Hundred-Year Life, Naomi Cahn, Clare Huntington, and Elizabeth Scott cast away tired platitudes about the elderly by presenting a bold new vision for autonomy and care in old age. The Article breaks new ground by unflinchingly confronting family law’s failure to serve the needs and preferences of elderly populations, including the growing number of centenarians. The authors argue that “the fundamental problem—conceptually and practically—is that family law is designed for younger people, facilitating child rearing and helping spouses pool resources to build a life together.” That design, in turn, overlooks critical family dynamics that change in old age, i.e., when parent-child caregiving roles reverse, when older persons spend down their savings rather than accumulate new wealth, and when single seniors enter new companionships with estate plans that would be frustrated by marital defaults that presume “financial interdependence.” Continue reading "Inheritance Law for Centenarians"
Jul 19, 2023 Michael C. DuffWork Law
Stephanie Bornstein’s illuminating article, Confronting the Racial Pay Gap, performs an almost shockingly useful math exercise for legal theorists. First, Professor Bornstein recounts statistics on the racial disparities between White families and families of color. “Recent estimates show the median net worth of an average White family is nearly ten times that of an average Black family” (in 2016, $171,000 compared to $17,100) “and nearly seven times that of the average Latinx family” (in 2019, $142,180 as compared to $20,765). (P. 1405.) She observes that “despite gains in the perceived social and economic status of Black and Latinx Americans, racial wealth gaps are worse than they were thirty years ago.” (P. 1416.)
Professor Bornstein then highlights the astounding details of the racial pay gap. Using the metric of comparing only workers who work full-time, year-round, in 2019, the average Black worker earned 73.5 cents and the average Latinx worker earned 74.6 cents on the dollar to the average White worker. While there was some improvement prior to 2000, these racial pay gaps are now larger than they were four decades ago. Before commenting upon some of the underlying findings in this global result, I want to pause here to consider what these two conclusions tell us in particular about the economic dynamics at play in White/Black relations in the United States. Here comes the math. White families have ten times the wealth that Black families possess and the gap cannot be closed with wages. Continue reading "Taking Seriously the Implications of the Racial Wage Gap"
Jul 18, 2023 Christopher J. RobinetteTorts
Alexandra D. Lahav,
A Revisionist History of Products Liability (Jan. 9, 2023), available at
SSRN.
The story of the rise and fall of privity of contract in products liability is familiar to all torts scholars. William Prosser even labeled privity a “citadel” and wrote two significant law review articles discussing in martial terms the assault upon and fall of the citadel of privity. The story is simple. In an 1842 English case, Winterbottom v. Wright, Lord Abinger held that an injured passenger could not sue the manufacturer of the allegedly defective stagecoach that injured him because the coach was provided under contract to the passenger’s employer, not to him. Abinger invoked floodgates by reasoning, “There is no privity of contract between these parties…Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue…” Id. The rule migrated to the United States, where courts held that, even though Winterbottom sued in contract, privity prevented plaintiffs from recovering for products injuries in negligence cases. In 1916, however, Judge Cardozo in MacPherson v. Buick Motor Co. ended the reign of privity by holding that a plaintiff injured by an allegedly defective automobile that he purchased from a retailer could sue the manufacturer directly.
But the story is false. Such is the argument of Professor Alexandra Lahav in her compelling new article. Instead, Lahav insists that the doctrinal rule for producers of injurious products in the United States in the nineteenth century was negligence liability. Continue reading "The Citadel as Sandcastle"
Jul 17, 2023 Seth EndoCourts Law
It is perfectly understandable why so many lawyers believe civil procedure is a slog. For litigators, their first experiences as attorneys involve plodding through thousands of near-identical documents to respond to a discovery request or consulting Rule 6 to determine when a response to a motion was due (remember not to include the last day of the period if it is Saturday, Sunday, or legal holiday!). But civil procedure raises big normative issues too. A wave of articles and symposia have taken aim at the civil justice gap, examining everything from the split between lawyerless and lawyered courts to the demographic composition of unrepresented litigants to using technology to reform service of process. Building on Rebecca Sandefur’s foundational work, Kathryne Young and Katie Billings apply insights from sociology to both enhance and implicitly challenge the existing access-to-justice literature.
Young and Billings’ initial framing highlights their cross-discipline expertise as they note that the cost of the civil justice gap goes beyond economics. They recognize that the stakes include a tax on time, stress, and other emotional tolls that lead to mental and physical health problems. And these harms are not uncommon—about half of U.S. households include a member with a problem actionable under civil law. Continue reading "Deepening Our Understanding of the Who’s of the A2J Crisis"
Jul 14, 2023 Neil H. BuchananTax Law
Why are gender and unpaid work issues continually marginalized in tax policy analysis? After all, feminist legal theorists have spent at least two generations trying to address questions that should be at the center of any analysis of government policy, no matter one’s political priors. People who want to turn the clock back to a 1950’s-style gendered hierarchy, for example, surely would want to know that their version of utopia (which, to be clear, I find positively dystopian) cannot possibly be created without understanding how government taxation and spending policies change people’s decisions about marriage and divorce, child-bearing and -rearing, the challenges of poverty (both sudden and chronic), and so on. Progressives are typically more aware of those connections, but somehow the “tax is different” mantra prevents many people from seeing that gender justice and tax justice are inseparable.
Miranda Stewart, a professor of tax law at the University of Melbourne, has long carried on important work to bring these issues to the fore. Her latest book, Tax & Government in the 21st Century, is a masterwork that covers the full range of issues that confront us, from savings and wealth, to corporate and business taxation, to the global digital economy, and every important issue in between. She builds her book on historical and philosophical foundations, discussing Adam Smith and the interactive development and evolution of states and capitalism (of various varieties). Confronted with a veritable buffet table of enticing potential topics to savor in this short review, I find that her most profound contribution (among many) is in Chapter 5, “Tax, Work, and Family.” Continue reading "Gender Issues in the Modern Tax State"
Jul 13, 2023 Bethany BergerLexNative Peoples Law
Debates over Founding Era constitutional understandings proliferate in scholarship and litigation. The understandings examined, however, are almost exclusively those of the white men who either drafted the constitution or could vote on its ratification. In We the (Native) People?, Professor Gregory Ablavsky and doctoral candidate Tanner Allread broaden this focus, uncovering what Indigenous people said and thought about the Constitution’s meaning. Like Mary Bilder’s recent article on the influence of Cherokee, Chickasaw, and Choctaw delegations’ visits to the constitutional convention in 1787, and earlier works by Robert Clinton, Maggie Blackhawk, and Ablavsky himself, the article confirms the influence of tribal actions on the Constitution and its interpretation. But in foregrounding Indigenous people’s perspectives, Ablavsky and Allread open a new window on those actions as well as on constitutional history and law.
The first contribution of the article is to identify pre-constitutional tribal-settler diplomacy as an important backdrop against which the Constitution was drafted and understood. As scholars like Robert Williams and Colin Calloway have shown, established rules, shaped by both Indigenous and English traditions, governed this diplomacy. These practices included both accepted rituals and norms of negotiation, reciprocity, and ongoing relationships that the English violated at their peril. Ablavsky and Allread dub this body of rules the “diplomatic constitution,” invoking the times’ definition of constitution as the practices, institutions, and discourses that disciplined governmental power. Influential founders, they show, like George Washington, Ben Franklin, James Madison, James Monroe, and Thomas Jefferson, would all have been familiar with this diplomatic constitution from their own experiences at negotiations with tribal nations. Continue reading "Expanding the Constitutional Lens"
Jul 13, 2023 Allison Brownell TirresLegal History
What did indigenous peoples think of the Constitution at the time of its drafting and in the first decades following ratification? This is the intriguing question at the heart of a compelling new article by Gregory Ablavsky and W. Tanner Allread. The answers they provide to this question turn constitutional history in a new direction: rather than considering the relationship of Native peoples to the Constitution through the perspectives of Anglo-American drafters, we are asked to listen to the voices of Native peoples themselves as they scrutinized and debated the new Constitution and then eventually utilized it, despite their misgivings, to try to defend their rights to property and sovereignty. The article makes a strong case for expanding our definition of constitutional discourse to include the reactions and engagement of Native peoples, many of whom were well aware of the legal sea changes afoot during the Founding Era and were concerned about the impact of those changes on their communities.
Ablavsky and Allread are straightforward about their aims. They are interested not only in shedding light on the evidence of constitutional discourse – which they draw primarily from research on several well-known Native nations in the South, Midwest and Northeast – but also convincing readers of the broader theoretical and methodological payoff. As they write, “The goal is less to offer a definitive account than to provide proof of concept: to show that we can, in fact, incorporate these voices into our constitutional histories.” (P. 248.) Ultimately, the authors deliver on their promise, encouraging us to move outside of rigid formulations and consider the wider reach of constitutional discourse. Continue reading "Constitutional History in the Middle Ground and Beyond: Indigenous Perspectives"
