Monthly Archives: June 2016

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Undocumented Migrants and International Law

Jaya Ramji-Nogales, “The Right to Have Rights”: Undocumented Migrants and State Protection, 63 Kan. L. Rev. 1045 (2015).

International human rights are often described as universal rights. The universality of this legal regime leads many people to view it as an appropriate resource for addressing the plight of undocumented migrants. Yet the legal protections provided within the international human rights regime are often unavailable to undocumented migrants, or the rights that are most important to them are not protected. International and immigration law scholars rarely acknowledge these limitations, which makes Professor Jaya Ramji-Nogales’ article such an important oorontribution. “The Right to Have Rights”: Undocumented Migrants and State Protection provides an excellent analysis of the limits of international human rights law in protecting undocumented migrants.

Two of the central challenges that undocumented migrants face are vulnerability within their states of residence due to their limited “recourse against exploitation due to fear of deportation” and “the rupture of family and community ties through deportation.” (P. 1050.) The rights to territorial security (by which Ramji-Nogales means the right to remain in one’s state of residence), family unity, and the absence of discrimination due to immigration status are important rights for addressing undocumented migrants’ central challenges. Continue reading "Undocumented Migrants and International Law"

 
 

Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality

David Marcus, The Public Interest Class Action, 104 Geo. L.J. 777 (2016).

Scholars, lawyers, and litigants struggle to understand the class action landscape that has evolved over the past five decades and has sharply contracted more recently. Seminal rulings such as Wal-Mart v. Dukes and its progeny in the lower courts have sown division and analytical confusion over the meaning and normative value of this obstructionist shift in jurisprudence. In The Public Interest Class Action, David Marcus dives into this morass, examining one slice of this jurisprudential retrenchment and its varied implications—class action procedure in public interest litigation, litigation brought against government officials and agencies for injunctive relief.

Marcus’s focus on structural-reform cases against public actors illustrates how most of the policy concerns animating class certification retrenchment are unjustified, misplaced, and dangerous to enforcement of constitutional rights. Much of the academic critique has centered around the role of monetary interests in aggregation—a distortion and distraction for understanding the public interest class action. The casualties of this misalignment are vulnerable populations such as foster children, prisoners, and students with disabilities, who have historically successfully sought structural remedies through aggregate litigation. Marcus speaks directly to judges chewing on how to approach class-certification motions and counsels them to manage structural reform litigation, not destroy it. Marcus puts retrenchment advocates to their proof, concluding that they have failed to prove how public interest class actions pose policy problems that can be rectified by Rule 23 obstructionism. Continue reading "Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality"

 
 

Data Mistakes and Data Justice

Wayne A. Logan & Andrew Guthrie Ferguson, Policing Criminal Justice Data 101 Minn. L. Rev. (forthcoming 2016).

In criminal justice circles, “big data” is the new buzzword: police departments are experimenting with the application of computer algorithms to vast amounts of digitized data to predict the future geographic location of crimes, to identify those people likely to become involved in gun violence, and to assess future criminality for the purpose of setting bond amounts and determining sentences. It turns out, though, that algorithms have problems. They can reflect the biases and choices of the humans who create them. They can also be plain wrong.

Besides algorithms, there is a more basic problem. The data itself can contain countless mistakes, inaccuracies, and discrepancies. While the wrong address, the invalid warrant, and the mistakenly recorded conviction don’t sound like particularly new problems (they aren’t), they represent an urgent but overlooked issue in our information-dependent world. This data determines how the government distinguishes between the dangerous and the low-risk, those who should be arrested and those who should be left alone. However, as Wayne Logan and Andrew Ferguson point out in their insightful and important article, Policing Criminal Justice Data, this “small data” is too often dead wrong. To make matters worse, there is little incentive for government agencies—at any level—to care. Their discussion is a must-read for anyone interested in the increasingly important role of information distribution and control in criminal justice. Continue reading "Data Mistakes and Data Justice"

 
 

Star Wars, Science Fiction and the Constitution

Cass R. Sunstein, The World According to Star Wars (2016).

Cass Sunstein is one of America’s leading legal scholars. Both his work generally and his book about Star Wars specifically have attracted enormous attention from both academics and the general public. But one theme of his new book, The World According to Star Wars, highlights an area that is often neglected: the depiction of constitutional issues in science fiction and fantasy.

Both legal scholars and other commentators on law and public policy would do well to pay more attention to this subject. Far more people watch science fiction movies and read science fiction books than pay attention to serious nonfiction commentary on political and constitutional issues. Whether we like it or not, these products may well have an impact on public attitudes, a possibility supported by some social science research.1 They also often reflect the concerns of their time. Continue reading "Star Wars, Science Fiction and the Constitution"

 
 

Thinking About Monitoring

Veronica Root, Modern-Day Monitorships, 33 Yale J. on Reg. 109 (forthcoming 2016), available at SSRN.

The study of organizational compliance is now proliferating in American law schools. Over the past decade, new courses, new programs, and new scholarship have focused increasing attention on this area. In recognition of the importance of organizational compliance as a free-standing field of inquiry, the American Law Institute has launched the drafting of Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations. This project – and the work it inspires – should advance our understanding of a framework for thinking about organizational compliance. Veronica Root’s work on monitorships, including her most recent piece on Modern-Day Monitorships, is a meaningful contribution to one piece of that framework.

Much of the existing work on organizational compliance focuses on “gatekeepers,” which reassure the public that a corporation is complying with its obligations. Professor Root has focused her scholarship on the enforcement side, helping us to understand the special role of “monitors,” which enter the scene after a compliance failure is manifest.1 The role of monitors is to investigate wrongdoing and make recommendations for future compliance. In her most recent article, Root describes “modern-day monitorships” and argues for a more nuanced understanding of these important enforcement institutions. Continue reading "Thinking About Monitoring"

 
 

Saving Auer

Cass R. Sunstein and Adrian Vermeule, The Unbearable Rightness of Auer, U. Chi. L. Rev. (forthcoming 2016), available at SSRN.

In 1945 the Supreme Court decided the case of Bowles v. Seminole Rock & Sand Co., in which it stated without citation to precedent or other explanation that, when the meaning of the words in an agency’s regulation are in doubt, “the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Over the years, this language has been often quoted by the Supreme Court, including in 1997 by Justice Antonin Scalia in Auer v. Robbins. Subsequently, courts and commentators have usually referred to this doctrine as Auer deference, and until recently the doctrine generally occasioned little discussion in the courts except in some cases where there was a suggestion of a possible exception from the doctrine when the regulation in question was itself hopelessly vague. But recently, there has been a frontal attack on the Auer doctrine led by the late Justice Scalia and Justice Thomas and apparently viewed sympathetically by Justice Alito and the Chief Justice. Moreover, leaders in the House and Senate have introduced a bill essentially to overrule Auer.

Now come Professors Sunstein and Vermeule in The Unbearable Rightness of Auer to take up the cudgel in defense of Auer. Their article is the starting point for any further discussion of the Auer doctrine.  Continue reading "Saving Auer"

 
 

Making Sense of Mid-Term Modifications of At-Will Employment Contracts

Rachel Arnow-Richman, Modifying At-Will Employment Contracts, 57 B.C. L. Rev. (forthcoming 2016), available at SSRN.

I’m always pleasantly surprised when I stumble across a piece of scholarship that seeks to solve a doctrinal puzzle in the law. I’m even more pleasantly surprised when the puzzle in question is one that I’ve puzzled over myself. And I’m really pleasantly surprised when the author offers a convincing solution to the puzzle. Those are but three reasons why I like Rachel Arnow-Richman’s article Modifying At-Will Employment Contracts.

Arnow-Richman’s article explores the contractual enforceability of what she calls “mid-term modifications,” a set of non-negotiable contract terms offered by an employer after the start of an at-will employment relationship.  These mid-term modifications often involve new terms that are less favorable to an employee, such as covenants not-to-compete or reduced benefits. The situation presents the type of conflict of competing interests that makes employment law so fascinating. Employees, whose employment status is already tenuous under the at-will employment rule, obviously want to be able to rely on “the deal” as to the terms and conditions of their employment when they first started to work. For their part, employers may have a legitimate need for flexibility in responding to changed circumstances. The law is then asked to produce an equitable solution to the conflict when an employer seeks to alter the deal after the relationship has commenced. But as Arnow-Richman demonstrates, “the common law has developed neither a coherent legal framework for analyzing mid-term modifications, nor a cogent theoretical basis for understanding existing doctrine.” (P. 3.) Continue reading "Making Sense of Mid-Term Modifications of At-Will Employment Contracts"

 
 

Bystanders v. Bullies

Sarah L. Swan, Bystander Interventions, 2015 Wis. L. Rev. 975 (2015).

The Stanford rape case has given new prominence to the role of bystanders in sexual assault cases. Many have heralded the actions of the two Swedish graduate students who intervened to stop the sexual assault of an unconscious woman and forcibly detain her attacker until police arrived. However, in the world of tort law, attitudes towards bystanders and bystander intervention are ambivalent, at best.

To begin with, one of the most enduring tort doctrines is the no-duty-to-rescue rule. Its protection is so broad that it shields the most callous persons who refuse to provide assistance, even if they could easily prevent a serious injury to another at little risk to themselves. Bystanders, we are told, are under no legal obligation to act and are allowed to remain passive in the face of suffering and simply go about their own business. As an expression of fundamental values of personal autonomy and individualism, letting bystanders off the hook can appear natural and appropriate. Even the term “bystander” itself suggests lack of involvement and lack of interest. In Bystander Interventions, Sarah Swan cuts against this narrative, exploring the new world of bystander intervention strategies and making the case for reforming tort doctrine and other bodies of law to encourage “active” bystanders. Continue reading "Bystanders v. Bullies"

 
 

Do Something! Sins of Omission in Property Law

Property often seems like a force field, a socially protected clearing in which an owner can act (within specified bounds) or do nothing at all. On this account, property is institutionalized noninterference. Trouble arises, we are given to understand, only when someone—an owner, an outsider, or the government—does something that impinges on someone else’s entitlements. The pervasive language of exclusion and encroachment, of boundaries defended and breached, cultivates the perception that property law operates to constrain action, not to compel it.

Two recent articles challenge the idea that property law is, or should be, complacent about inactivity. Nadav Shoked’s piece, The Duty to Maintain, examines the affirmative obligations that law routinely places on owners and finds them to be normatively well-grounded. And in Passive Takings, Christopher Serkin suggests that there are circumstances in which government should be subject to takings liability for passivity as well as for action. Each of these pieces emphasizes the contingent and interdependent nature of property interests, and each highlights the weakness and ultimate incoherence of using a line between acts and omissions to determine the duties owed by and to owners. Continue reading "Do Something! Sins of Omission in Property Law"

 
 

Can Prosecutors Be Both Coach and Referee?

Eric Fish, Prosecutorial Constitutionalism, S. Cal. L. Rev. (forthcoming 2016), available at SSRN.

In his intriguing new article, Prosecutorial Constitutionalism, Eric Fish develops a theory about when prosecutors ought to act as public officials, interpreting the Constitution as a judge would do, and when they should serve as advocates seeking a conviction or the maximum punishment possible. He concludes that when the adversary system fails, prosecutors should assume the role of judges. They should act according to their own interpretation of the Constitution, as other public officials are expected to do.

When prosecutors are in full control of the criminal justice process, as in plea bargaining or charging, the adversary checks are absent, and prosecutors should interpret and apply the Constitution to protect defendants’ rights. Similarly, when judges under-enforce constitutional norms out of procedural or structural concerns like separation of powers, the prosecutor should serve as a guardian of defendants’ rights rather than their adversary. In other moments when the system is functioning as a proper check, prosecutors should be free to pursue convictions and high sentences with zeal. Continue reading "Can Prosecutors Be Both Coach and Referee?"

 
 

Justifying the Law-Equity Divide

Samuel Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016).

The division between law and equity has a long and important history in Anglo-American jurisprudence, and one whose effects continue to resonate in American courts to this day. Indeed, whenever I teach remedies, I tell my students that this is an area of law where history still matters—that if they want to understand the difference between legal and equitable remedies, and to know the types of remedies that their clients might be entitled to in a given case, they need to be at least somewhat familiar with the history of the contest between the English courts of law and the Court of Chancery, which was responsible for developing and administering the rules of equity. Why? Because it was the battle over jurisdictional turf that took place between these courts hundreds of years ago that gave rise to a rule (i.e., the irreparable injury rule) that still operates whenever judges are called upon to decide whether an aggrieved party is entitled to an equitable remedy. Specifically, the irreparable injury rule requires that an aggrieved party seeking an equitable remedy (e.g., specific performance of a contract) must show that there is no adequate legal remedy (e.g., money damages) to put it in the position it would have occupied had the wrongdoer not committed its wrong (e.g., breach of contract).

Apart from this history, however, one wonders whether the irreparable injury rule (specifically), or the division between legal and equitable remedies (more generally), can be justified along more functional lines. Many commentators believe that it cannot. Professor Douglas Laycock, for instance, in strong and colorful language, has argued that “[a] rule designed to preserve the jurisdictional boundaries between two courts that have long been merged should die unless it serves some modern purpose.”1 In fact, Laycock has even claimed that the rule is largely dead, being more honored in the breach than in the observance.2 But if this is true, one may ask (as my students sometimes do), why do professors still teach the irreparable injury rule, and why do courts still invoke it whenever a plaintiff seeks an equitable remedy? And, perhaps more importantly, since courts of law and equity have long been merged in most jurisdictions, what justification (outside of tradition) can there be for continuing to distinguish between legal and equitable remedies in such a manner? It is in providing an answer to these tough and persistent questions that Samuel Bray’s article, The System of Equitable Remedies, makes an important contribution to the field. Continue reading "Justifying the Law-Equity Divide"

 
 

Staying Power of Equity

Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016).

Let equity lure you with its sirens. Equity, first developed by the Court of Chancery, is vital to the law of remedies. It affects a range of rights, remedies, and defenses from public to private disputes. It cannot be forgotten, ignored, or fully merged. The trend, however, is to streamline equity. For example, Douglas Laycock has argued we should move beyond the law-equity divide, and Doug Rendleman has advocated fusion and functionalism for reasons that I separately have acknowledged: equity generates friction and confusion, especially regarding restitution and unjust enrichment. Sam Bray’s The System of Equitable Remedies refutes this movement. Bray instead argues that equity remains distinct from law and comprises its own system that is pervasive, rational, and useful.

I agree: equity is alive and well in America. It is not simply federal and state constitutional rights to jury trials keeping the divide relevant. Federal and state courts keep equity in play in statutory and common-law cases—from ERISA to contracts, environmental law to trade secrets, and beyond. Equity soldiers on, despite law schools’ dropping the Equity course and despite the merger of law and equity in almost all courts and the Rules of Civil Procedure. Complete merger remains elusive. Where law fails or falls short, the pull of equity is greatest. Equitable remedies are key where money substitutes provide inadequate protection. Bray bluntly states the need: “There must be some way for courts to compel action or non-action.” Overall, Bray’s work requires readers to stop and think before dismantling the distinct system of equity. Continue reading "Staying Power of Equity"

 
 

Don’t Delegate This Reading

James R. Hines Jr. & Kyle D. Logue, Delegating Tax, 114 Mich. L. Review 235 (2015).

In modern regulatory states, the theoretically firm lines dividing the legislative, executive, and judicial branches of government are increasingly blurred. Teasing out how to design and enforce effective regulation has become a major preoccupation of scholars and policymakers in every area of law.

Delegating Tax, an article by the talented James R. Hines Jr. and Kyle D. Logue, is wonderful reading in that light. The article contrasts the reluctance of Congress to delegate the lawmaking authority of the IRS and Treasury in the tax area with Congress’ increasing willingness to delegate that authority to other federal administrative agencies. The authors make the case for great delegation in the tax area, noting the potential for the executive branch to draw on greater expertise and to respond more quickly. Continue reading "Don’t Delegate This Reading"

 
 

Linguistic Theory, Gender Schemas and Wills

Karen Sneddon, Not Your Mother’s Will: Gender, Language, and Wills, 98 Marq. L. Rev. 1535 (2015).

Language matters. In her recent article, Not Your Mother’s Will: Gender, Language, and Wills, Karen Sneddon details just how much language matters in the context of wills and trusts. In a comprehensive review of linguistic theory and its intersection with inheritance law, Sneddon illuminates how will clauses and trust structures reflect gender schemas about men and women.

Sneddon first lays a foundation for her hypothesis that will drafting reflects masculine and feminine roles and norms by acquainting the reader with basic linguistic theory. She notes that wills are one of the most personal and oldest forms of legal writing. Sneddon goes on to introduce the concept of androcentrism as a driver of language-based gender norms. Phrases that focus on men as the typical and women as the atypical mirror what Sneddon describes as the remnants of patrimony. Cultures perform and reproduce gender through language. Using terms like “executor” and “executrix” implies that the latter is the less important variation on the central role. Interestingly, Sneddon asserts that prior to the nineteenth century there were fewer gender distinctions in language and actually more female executors. She suggests that the rise of Victorian ideals relating to the delicate nature of womanhood may have contributed to this shift away from women performing such public duties and that the increase in the gendered form “executrix” reflects those societal changes. Continue reading "Linguistic Theory, Gender Schemas and Wills"

 
 

The Art of Promise and Power of Contract

Dori Kimel, Promise, Contract, Personal Autonomy, and the Freedom to Change One’s Mind, in Philosophical Foundations of Contract Law 96 (Klass, Letsas & Saprai eds., 2015).

For philosophers of private law, a central puzzle is to explain how people’s voluntary acts of promising and contracting can produce genuine obligations. One popular class of answers points to personal autonomy—or the capacity, real or hypothetical, to bind one’s will through free acts of self-legislation. For those who believe in personal autonomy and its value, there may seem to be relatively few puzzles about promise or contract. Indeed, promise and contract might seem to offer easy cases.

These initial impressions can, however, be misleading. Whether promise and contract can be grounded in concern for personal autonomy will ultimately depend on what personal autonomy is, why it is valuable, and how promise and contract work. While autonomy-based accounts of promise and contract have proven enormously popular in the legal literature, this popularity has not always been matched by sufficiently close attention to these foundational questions. One of the things I appreciate most about Dori Kimel’s work in Personal Autonomy and Change of Mind in Promise and Contract is that he offers an uncommonly rich description of personal autonomy and its value. Rather than exaggerating the ease with which personal autonomy can be used to explain various details of promise and contract, Kimel faces the difficulties head on. Continue reading "The Art of Promise and Power of Contract"

 
 

The Turn to Procedure

Daniel Ernst’s book, Tocqueville’s Nightmare: The Administrative State in America, is a significant addition to the growing literature on the history of the administrative state. However, it also compels a rethinking of the received historiography of twentieth century American legal thought. It is to the latter contribution that I will devote this brief review.

When Alexis de Tocqueville visited the United States in the 1830s, he observed that the country—in contrast to the states of continental Europe–had very little in the way of centralized bureaucracy. This, for Tocqueville, was a good thing: powerful centralized bureaucracies threatened a significant abridgment of democracy in a country as diverse and spread out as the United States. The “Tocqueville’s nightmare” of Ernst’s title refers, then, to the situation in which too much power might become vested in the hands of bureaucrats unanswerable to the people. Continue reading "The Turn to Procedure"

 
 

Copyright’s Interpretive Turn

Zahr Said, Reforming Copyright Interpretation, 28 Harv. J. of L. & Tech. 469 (2015).

Zahr Said’s Reforming Copyright Interpretation puts its finger on an important, yet little studied, aspect of copyright law: judicial interpretation. It pushes the ball quite a bit by providing a descriptive taxonomy of courts’ interpretive approaches in copyright law, advancing and defending an interpretive approach that it considers best overall, and applying and exemplifying its framework and arguments with a good number of cases while situating it all within a larger body of law and literature scholarship. For me, that’s tons of progress in one article, and the reason why I like it lots.

In resolving copyright disputes, judges must make interpretive decisions. Decisions regarding interpretation are often outcome-relevant – for example, when they lead a judge to decide whether an issue is a matter of law or fact or whether expert testimony may be admitted or not. These decisions can also be outcome-determinative – for example, when a judge makes an interpretive decision that resolves a case on summary judgment or finds an allegedly infringing use to be fair. The interpretive judgment that these decisions involve often flies under readers’ radars. Said draws our attention to judges’ interpretive choices and to the systemic effect that they have, or could have if they were to be conducted appropriately, on copyright law. Continue reading "Copyright’s Interpretive Turn"

 
 

Health Insurance as Innovation Incentive

Rachel Sachs, Prizing Insurance: Prescription Drug Insurance as Innovation Incentive, 30 Harv. J. of L. and Tech. (forthcoming 2016), available at SSRN.

In Prizing Insurance: Prescription Drug Insurance as Innovation Incentive, Rachel Sachs brings together the often disparate worlds of intellectual property theory and health insurance design, to argue that prescription drug insurance could be structured to offer a better incentive for pharmaceutical companies to develop drugs that treat conditions primarily affecting low-income Americans. Typically, health insurance design is evaluated from an access and utilization perspective. Professor Sachs suggests we should broaden that view, at least when it comes to drug coverage, to evaluate the effect insurance coverage has on research and development incentives.

To make her point, Professor Sachs works through the example of the innovation incentives for drugs that would be primarily prescribed to low-income populations in the U.S., such as those that would treat various tropical diseases. While there are many factors that influence the development of drugs, one of those incentives is financial. And when it comes to diseases that affect primarily low-income individuals, the financial analysis disfavors significant innovation investment. After all, if the population to be treated is either uninsured or covered through only Medicaid, the “prize” for developing a treatment may be insufficient to support investment. Medicaid arguably contributes to this lack of incentive given its relatively low payment rates for pharmaceuticals, which are significantly below other market payers in the U.S. The novel argument Professor Sachs makes is that insurance design could be modified to help achieve socially desirable innovation that the market would not otherwise reward. Continue reading "Health Insurance as Innovation Incentive"

 
 

Hackney Reviews Judge Weinstein on Torts

James R. Hackney, Jr., Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, 64 DePaul L. R. 2 (2014), available at SSRN.

Professor James Hackney’s recent review of Judge Jack Weinstein’s work on the bench, Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History, is well worth reading. He draws interesting parallels between Weinstein’s approach to resolving mass tort disputes, described in his book Individual Justice in Mass Tort Litigation and reflected in several of his opinions, and Guido Calabresi’s theories of tort law, set out most prominently in The Costs of Accidents. Hackney makes a compelling case that their views are more similar than most scholars recognize.

At first the connection between Calabresi and Weinstein seemed a bit of a stretch to me. I’ve read Calabresi’s The Costs of Accidents many times and it has always struck me to be a primarily normative vision of the tort system, full of considerations that have proved to be enormously influential to tort theorists, but of somewhat limited value to judges. For example, the argument that negligence doctrine should be abolished and replaced by strict liability is a theory that most judges would have difficulty putting into practice. This is also confirmed by Judge Friendly’s reluctance to rely on a normative theory based entirely on Calabresi, and put forward by the plaintiff, as a justification for expanding vicarious liability in Ira S. Bushy & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968). Continue reading "Hackney Reviews Judge Weinstein on Torts"

 
 

On Marriage Equality and Transformation Through Preservation

Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185 (2016).

For nearly as long as same-sex couples have been pressing for marriage equality, progressive legal commentators have been engaged in a robust debate over the desirability of making marriage the main focus—indeed, a focus—of the gay rights movement. Some in this conversation view same-sex marriage as radical, an institution capable of disrupting the links between biology and gender that have long structured marital parenthood.1 Others view it as regressivist, an institution bound to co-opt individuals who choose to organize their lives outside of marriage and one that betrays earlier family law advocacy on behalf of nontraditional parents by valorizing the link between marriage and parentage.2 For many in this latter camp, same-sex marriage is a normatively repressive “straight”-jacket (pun intended).

In Marriage Equality and the New Parenthood, Douglas NeJaime aims to unsettle the second of these views, but in the process destabilizes them both. He does so by foregrounding the legal relationship between marriage and parenthood before, during, and after the nationwide push for marriage equality. Neither completely radical nor completely reactionary, marriage equality, NeJaime shows, is the product of progressive family law pluralism, which itself was the product of a vision of marriage that was in some respects traditional. Even more, NeJaime argues that marriage equality will produce—and already has produced—the pluralistic family law from which it springs, and will likely reverberate well beyond the confines of outlying groups like sexual minorities given its potential to erode the legal priority of marriage, an institution that is already in decline for many. On this masterful telling, marriage equality is at once radical margin and less-radical center. Continue reading "On Marriage Equality and Transformation Through Preservation"

 
 

Not Complicit, but Inadequate: Looking at the Concurrent Rise of Human Rights and Neoliberalism

Samuel Moyn, A Powerless Companion: Human Rights in the Age of Neoliberalism, 77 L. and Contemporary Problems 147 (2014).

Lately I’ve been hoping that the sense of impending doom I feel at the lengthening list of things-that-are-worse-than-they-used-to-be might be at least somewhat mitigated if I could only identify the way(s) in which that list could be boiled down to one – okay, maybe two or even three – big thing(s). Neoliberalism lurks as a strong contender, hence a search for articles I like – lots – that trace this approach, whether at the macro, mezzo, or micro level. There are many such articles, but what I’ve chosen to highlight here is from Vol. 77 of Law and Contemporary Problems, a special edition on law and neoliberalism. Guest Editors Jedediah Purdy and David Singh Grewal explain, with charming delicacy, in their introductory essay, “….the term ‘neoliberalism’ may be unfamiliar to some American legal audiences…[but] it is a common part of the scholarly lexicons of many disciplines and is widely used elsewhere in the world, notably in Latin America and Europe.” (Assuming they are right, here is an attempt at Neoliberalism in a Nutshell:  In contrast to the more social-liberal approaches many Western governments followed just after World War II, neoliberalism emphasises the withdrawal of the state in favour of laissez-faire, market based organization, with characteristic policies aimed at privatization, deregulation, and elimination of social benefits regimes). Purdy and Grewal go on, step by step, to build the case for legal scholars in the US to pay some attention to neoliberalism as a phenomenon and a zone of scholarship.

The piece I’m talking about here is Samuel Moyn’s A Powerless Companion: Human Rights in the Age of Neoliberalism (it occurs to me that the title might not help you understand why I thought this would assist my sense of impending doom). In this piece, Moyn considers three themes – global capitalism, the human rights paradigm, and rising economic inequality. He describes the simultaneous burgeoning of the first two in the 1970’s, and the relatively more recent availability of empirical data that document the third – all noted by numerous other scholars – before arguing that the “crucial connection” between human rights and neoliberalism “is a missed connection: precisely because the human rights revolution has at its most ambitious dedicated itself to establishing a normative and actual floor for protection, it has failed to respond to—or even allowed for recognizing— neoliberalism’s obliteration of the ceiling on inequality.” (P. 151.) He positions his insights as in between Marxist and mainstream, concluding in part that there is no point berating human rights for this failure to engage – rather, human rights should be encouraged to keep out of this zone, lest it be seen as a collaborator. (Id.) Continue reading "Not Complicit, but Inadequate: Looking at the Concurrent Rise of Human Rights and Neoliberalism"

 
 

How to Win (at Least) Time in the Information Power Game

Finn Brunton & Helen Nissenbaum, Obfuscation: A User’s Guide for Privacy and Protest (MIT Press 2015).

This book is about using data noise to make your personal information less easily digestible by privacy-consuming systems.

This book is a necessary book because it presents hopeful tactics and strategies for privacy defense at a time when—in spite of half a century of debates about (electronic) privacy laws, regulations and court decisions, best practices and privacy enhancing technologies—we seem to be living in a state of privacy resignation. Continue reading "How to Win (at Least) Time in the Information Power Game"

 
 

The Definition of Suspicion in an Era of Modern Policing

Jane Bambauer, Hassle, 113 Mich. L. Rev. 461 (2015).

Every Fourth Amendment scholar is familiar with the concept of “individualized suspicion.” The classic example comes from Terry v. Ohio, where Officer McFadden watched two men walk up and down in front of a storefront numerous times, consult with another individual, and then return to checking out the storefront. The Supreme Court held that, while McFadden did not have probable cause for arrest, he had a “particularized” belief that the three men were up to no good and thus could stop them and, when they gave unsatisfactory answers about their activity, frisk them as well.

That type of case is often contrasted with what are sometimes called “suspicionless” searches and seizures. The classic example of that type of police action is the license or sobriety checkpoint that stops individuals who drive up to it. The Court has indicated that such seizures are permissible despite the absence of suspicion that any particular driver seized has an expired license or is drunk, as long as the police stop everyone who comes to the checkpoint or rely on neutral criteria in deciding whom to stop (such as whether the car occupies a pre-selected position in line). Continue reading "The Definition of Suspicion in an Era of Modern Policing"

 
 

The Irrepressible Myth of SCOTUS

Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016).

In The Case Against the Supreme Court, Erwin Chemerinsky explains why he is disappointed in the Supreme Court and its failure to function as it is designed—as a countermajoritarian check on society’s worst majoritarian impulses, protecting individual rights from popular encroachment and offering a venue to minorities shut out of success in the political process. Commenting on the book, Corinna Lain argues that the source of Chemerinsky’s disappointment is his expectation that this is the Court’s function. And, she argues, the source of that expectation is the Supreme Court itself. On Lain’s telling, every case in which the Court is perceived to have “failed” in its countermajoritarian role actually reflects the Court’s success in furthering the story (I might label it a “myth”) of what it does, what it should be, and what many scholars (I would put myself in this group) hope and expect it to be.

Lain focuses on three cases routinely disparaged as judicial failures–Plessy v. Ferguson (upholding segregated railroad cars and, by extension, Jim Crow laws), Buck v. Bell (upholding forced sterilization programs), and Korematsu v. United States (upholding the exclusion of people of Japanese ancestry from the West Coast). All are uniformly recognized today as among the most grievous examples of the Court failing to protect individual rights and vulnerable minorities. Continue reading "The Irrepressible Myth of SCOTUS"