Property Governance Through Resistance: Subversive Property Explores Progressive Potential for Property Outsiders to Re-create Spaces of Belonging and Propriety

Research exploring the intersections of law, property, and society through jurisdictional and international lenses has flourished in the last decade in response to a pressing need for analytical insights into the property problems that dominate much of our current political discourse. Debates about access to places and spaces, linked to a concern around “who belongs” in our countries, in our communities, and in public spaces and private places, raise important questions about the role that property plays in enabling exclusion or inclusion, particularly for marginalised “outsiders.”

Against this backdrop, Sarah Keenan’s new book has come along at a crucial moment. It offers an insightful analysis into how property rules prevent marginalised or outsider groups from developing a sense of belonging in places that are dominated by, and governed through, an insider norm. Continue reading "Property Governance Through Resistance: Subversive Property Explores Progressive Potential for Property Outsiders to Re-create Spaces of Belonging and Propriety"

 
 

Toward a Universal Understanding of the Value of Legal Research Education

Learning the substantive law has always been the foundation of a legal education. As job prospects for attorneys tightened, a focus on practitioner skills began trending in legal education. There is an expectation that law schools will produce practice-ready attorneys. Despite this expectation, why are Johnny and Jane unable to research?

Professor Caroline L. Osborne’s research findings have confirmed what many legal educators surmise about the state of legal research education. Her findings demonstrate that legal research education is undervalued in law schools. “For those involved in legal education, the goal is to provide students with the tools they need to succeed . . . . ” (P. 407.) In a carpenter’s arena, the value of the hammer is universally understood. The value of legal research as an essential tool of the legal trade, on the other hand, is not well understood in legal education. This lack of understanding persists, despite the MacCrate report and its ilk, codified ethical obligations of attorneys, and promulgated research competency standards. With this in mind, Professor Osborne presents each contributing factor to the devaluation of legal research education so that the reader is equipped to ponder solutions. Continue reading "Toward a Universal Understanding of the Value of Legal Research Education"

 
 

Faustian Bargain? American State Formation and the Crisis of Legitimacy

As a field, legal history has long been centrally concerned with the patterns and trajectories of American political development and state formation. In his recent book, Liberty and Coercion: The Paradox of American Government from the Founding to the Present (Princeton University Press, 2015), Gary Gerstle offers a compact and highly readable synthesis of the long arc of the battles over the idea of a strong and central American state, from the constitutional founding through recent clashes between the Obama administration and the Tea Party. Gerstle and his work are of course well-known in the field. In this new book, he offers a cautionary narrative about this long process of state formation, and how it has set in place pathologies that fuel recurring crises of governance and legitimacy.

The central premise of the book is that there is a fundamental tension baked into the legal and constitutional structure of American government: the congenital unease with a powerful state on the one hand (“liberty”) and the starting premise of unchecked “police power” on the part of state governments (“coercion”) on the other. A powerful federal state was, in theory, at odds with both of these principles, endowed with specific enumerated powers in the Constitution rather than general police powers, and restrained by both constitutional and normative commitments to individual liberty. Law and the Supreme Court play a central role in Gerstle’s narrative, as the source of the original constraints on expansive federal power—and thus the key arena in which statebuilders had to innovate forms of modern, centralized governance that could navigate these tensions between liberty and coercion. In Gerstle’s account, the federal government gained its modern powers only in response to a trio of crises that prompted shifts in the basic structure of governance: the Great Depression, the “total war” mobilization of World War II, and the civil rights movement. As a result, the federal government suddenly found itself possessing a degree of fiscal and legal authority previously unknown in the early republic. Continue reading "Faustian Bargain? American State Formation and the Crisis of Legitimacy"

 
 

Eight Is Enough

In February 2016, shortly after the death of Justice Antonin Scalia, progressives, including progressive law professors, salivated at the prospects for the Supreme Court. President Barack Obama would fill a vacancy (the third of his presidency and the same number Reagan had appointed), shifting a 5-4 conservative Court to a 5-4 liberal Court. And with the expected election of Hillary Clinton to potentially replace three Justices who were 78-years-old or older, a 6-3 liberal Court—unseen since the 1962-68 heyday of the Warren Court—seemed possible. Visions of vigorous liberal constitutionalism, especially on “Culture War” issues, danced in the heads of constitutional scholars and advocates.

It was not to be, of course. Those dreams died in stages, with first the success of Senate Republicans’ 300-day inaction on President Obama’s nomination of Merrick Garland, then Donald Trump’s unexpected election in November 2016, then his January 2017 nomination of Tenth Circuit Judge Neil Gorsuch to fill the vacancy.

Although a self-described progressive, Eric Segall spent this interregnum attempting to steer the conversation and the political process in a different direction. In Eight Justices Are Enough (a paper I read and commented on in draft), the culmination of a series of op-eds, blog posts, and talks, Segall argues that Congress should permanently establish the status quo since Scalia’s death that may continue for the duration of the current Term: An eight-Justice Court, evenly divided between Democratic and Republican appointees. Each seat would be designated (or at least understood) as “belonging” to that party and to be filled by a nominee of that same party, regardless of the appointing President. In essence, Segall argues, the Supreme Court should be staffed the same way as the Federal Election Commission or the Court of Appeals for the Armed Forces (a non-Article III court). Continue reading "Eight Is Enough"

 
 

A Revival of Historic Jurisprudence?

  • Dan Priel, Holmes’s ‘Path of the Law’ as Non-Analytic Jurisprudence, 35 Univ. Queensland L.J. 57 (2016), available at SSRN.
  • Markus D. Dubber, New Historical Jurisprudence: Legal History as Critical Analysis of Law, 2 Critical Analysis of Law 1 (2015), available at SSRN.

Of late there has been a notable burst of attention to the interaction between history and legal theory generally, and historical jurisprudence specifically. This includes a symposium in the Virginia Law Review last year on Jurisprudence and (Its) History, and a forthcoming book, Law in Theory and Jurisprudence, both with contributions from prominent scholars. What makes this noteworthy is that decades ago historical jurisprudence itself was consigned to the dustbins of history. As Brian Bix declares in his leading Jurisprudence text, “historical jurisprudence has largely disappeared.”

Historical jurisprudence emerged in the nineteenth century in the influential writings of Friedrich von Savigny and Henry Maine. It revolved around the insight that law evolves over time in connection with surrounding social, cultural, economic, political, and technological influences. Law at any moment in any place is the cumulative product of the history of its society (including interaction with external influences).1 At the turn of the twentieth century, historical jurisprudence and legal positivism were the two main rival branches of jurisprudence, with natural law theory a distant third. Writing in 1906, prominent American jurist Melville Bigelow observed, “Two distinct schools have in succession held the field, more or less, of legal education in English and American law, the analytical of Bentham and Austin and the historical school.” Soon after Bigelow uttered these words, however, historical jurisprudence seemingly expired, not to be heard from again—until now. Dan Priel’s Holmes’s ‘Path of the Law’ as Non-Analytic Jurisprudence and Markus Dubber’s New Historical Jurisprudence: Legal History as Critical Analysis of Law explicitly advocate a revival of historical jurisprudence. Continue reading "A Revival of Historic Jurisprudence?"

 
 

Justice Breyer’s Radically Pragmatic approach to Transnational Law

Justice Stephen Breyer, The Court and the World (2016).

Justice Stephen Breyer’s The Court and the World (also the basis of his Jorde lecture) [hereinafter TCW] is an important book. Every legal scholar should read it, because it makes the case, clearly and compellingly, that international, comparative and transnational law are increasingly central to the fabric of American legal practice.

At the heart of TCW are two central concepts: “foreign” and “interdependence.” The basic argument of the book, illustrated through many examples, is the claim that the “foreign” is of increasing relevance to the Supreme Court because of the increasing “interdependence” of the United States to other jurisdictions. I want to suggest that TCW sets out two different accounts of what foreign and interdependence are, and hence, two distinct senses of how they are interrelated. Continue reading "Justice Breyer’s Radically Pragmatic approach to Transnational Law"

 
 

Getting to Grips with Discrimination

Deborah Hellman, Two Concepts of Discrimination, 102 Virginia L. Rev. 895 (2016), available at SSRN.

Since the mid-1970s, the Supreme Court has insisted with increasing fervor upon an anticlassification norm as the central principle of Equal Protection law. In the past decade, alternative legal solutions to inequality have emerged as competitors with the anticlassification norm. In 2009, the late Justice Scalia observed, in his concurrence in Ricci v. DeStefano, that the disparate impact theory of liability available under Title VII of the 1964 Civil Rights Act required employers to categorize by race. Given the priority of colorblindness, Justice Scalia observed, it might therefore fall afoul of the Equal Protection Clause. Two basic instruments for racial equality—both a part of the federal statutory law of antidiscrimination for a half century—suddenly seemed in collision course. This conflict is at the heart of Deborah Hellman’s excellent new article.

The conflict between anticlassification and disparate impact has receded more recently. In a June 2015 decision interpreting the Fair Housing Act, Justice Kennedy brokered an uneasy truce. Yet the pressing and fundamental theoretical question raised by Justice Scalia’s Ricci concurrence has not dissipated: How is it that anticlassification and disparate impact can both purport to mitigate racial discrimination, and yet conflict? Is the disagreement a divergence of tactics—a question of whether one thinks one can get beyond race without accounting for race? Is it the result of a divide between ideal and nonideal theory? Or does it represent a more profound divide over the nature and substance of equality? Continue reading "Getting to Grips with Discrimination"

 
 

Whittling Away at Trademark Law’s Notions of Harm

In recent decades, numerous scholars have challenged trademark law’s various conceptions of harm. Unlike copyright and patent law, trademark law positions itself as a harm-avoidance regime, rather than a mechanism for capturing economic rents. At least under the dominant theoretical model, the law seeks to promote competition by ensuring the accuracy and reliability of source-indicating symbols in markets. In practice, however, the harm narrative often breaks down under scrutiny. Recent articles have taken issue with the assorted harms that trademark law purports to prevent. From dilution by blurring to “irrelevant” confusion, critics have argued that at least some of the injuries targeted by trademark law are illusory.

In What Can Harm the Reputation of a Trademark?, Michael Handler adds to this literature with a critical look at dilution by tarnishment. Tarnishment, defined in the Lanham Act as “association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark,” explicitly addresses itself to harm. On its face, it requires not only proof of some association between the famous mark and the diluting one, but a demonstrable risk that the challenged use is likely to harm the famous mark’s reputation. Yet courts have suggested (and some have held) that they will presume such a risk when marks resembling famous ones appear on unsavory products. Tarnishment, in other words, assumes that creating a mental association between a famous mark and some distasteful product can sully the trademark’s reputation, even when consumers realize that there’s no relationship between the two parties. Handler questions that presumption. In particular, he “quer[ies] whether this form of dilution – to the extent it encompasses conduct beyond the boundaries of the traditional, confusion-based, trademark infringement action – is, in fact, a ‘harm’ of which the law should take cognizance.” Continue reading "Whittling Away at Trademark Law’s Notions of Harm"

 
 

Reconciling the First Amendment with the Regulation of Professional-Client Communications

Claudia E. Haupt, Unprofessional Advice, 19 U. Pa. J. Const. L. (forthcoming 2017), available at SSRN.

The application of First Amendment principles to professional speech raises a seemingly irresolvable challenge. On the one hand, a core First Amendment principle is that government should not discriminate against speech based solely on its content. On the other hand, it is well settled that physicians and other professionals can be subject to malpractice liability for giving “unprofessional” advice—despite the fact that doing so depends precisely on the sort of content discrimination that the First Amendment normally does not allow. In light of this discrepancy, some have suggested that professional-client interactions should be treated as an exception to normal First Amendment principles, in order to preserve the law’s ability to protect clients from unprofessional advice.

Rejecting that approach, Claudia Haupt’s forthcoming article, Unprofessional Advice, argues that efforts to limit unprofessional advice are entirely consistent with “the claim that “[p]rofessional speech should receive robust First Amendment protection.” The article builds on Haupt’s previous work, Professional Speech, which set out a comprehensive theoretical and doctrinal framework for understanding professional speech. Taken together, the two pieces provide a coherent and convincing approach to resolving several ongoing policy debates. Continue reading "Reconciling the First Amendment with the Regulation of Professional-Client Communications"

 
 

Criminal Law’s Borders

When a sanction as massive and punitive as deportation is triggered by a criminal sentence, it is all but inevitable that the system responsible for processing and administering the criminal sentence will be transformed by its proximity to this substantial “collateral” effect. Mona Lynch’s Backpacking the Border: The Intersection of Drug and Immigration Prosecutions in a High Volume U.S. Court, provides new and important insights into the nature and degree of this transformative effect. In her Backpacking article, she illustrates how drug prosecutions in one high-volume U.S. district court along the southern border have ceased to be driven by the presumptive goal of deterring and punishing drug crimes at all; instead, they operate almost entirely in the service of migration control objectives. “[I]mmigration policy has become so criminalized here that the immigrant status rather than criminal status of the defendants in drug cases drives the adjudicatory logics and practices.” (P. 5.)

Lynch’s article is the product of a comparative qualitative field research study that she conducted in four federal district court jurisdictions around the United States. She conducted in-depth interviews and engaged in direct observation of court proceedings, “supplemented by analysis of social artifacts and secondary source data.” (P. 5.) Her particular interest was finding out how drug cases are selected and adjudicated in the federal court system, and her focus was on legal process rather than legal outcomes. By analyzing four distinct jurisdictions, she hoped to see how local courtroom actors in distinct contexts “conceptualize and shape outcomes.” Id. This particular paper draws from her work in “the Southwestern district,” which is one of the highest-volume federal district courts in the country, which has a caseload of primarily drug and immigration crimes. While she noted local variations in all four of the districts she studied, “all three of the non-border districts had modes of adjudicating cases that bore resemblance to each other and that diverged considerably from” the southwestern border district that she studied. (P. 6.) Continue reading "Criminal Law’s Borders"