Pantouflage, Revolving Doors, and Space Travelers

What would you call it when a former government official joins a corporate law firm? This is commonly known as revolving doors between market and politics in the United States but, in France, it has a different name: pantouflage. As Antoine Vauchez and Pierre France explain in their book The Neoliberal Republic: Corporate Lawyers, Statecraft, and the Making of Public-Private France, pantouflage “bears a different meaning than revolving doors as it does not imply moving back and forth but rather a departure from the public sector.” (P. 55.) Such a departure of professionals from the public sector is also a familiar scene in other countries, such as China, where hundreds of mid-career judges, procurators, and other state officials leave their government or judicial posts to become lawyers in private firms every year.1

Most existing studies on these professionals traveling between the public and private sectors emphasize either the personal benefits that they get from their “political embeddedness” or the economic consequences of their brokerage between state and market for their clients.2 Vauchez and France also observe similar dynamics in France, yet the focus of their book is on the structural consequences of pantouflage, namely, the blurring of the “border between public and private.” (P. 132.) Drawing on Michael Walzer’s theory of normative social differentiation,3 which proposes that the democratic space is made possible by the separation of the public sphere from other social , the authors argue that “the blurring of the public-private dividing line…calls into question the very conditions in which the public interest is defined.” (Pp. 132-133.) They even pose the question of whether the rise of pantouflage since the 1990s has punched “a black hole in democracy.” (P. 117.) Continue reading "Pantouflage, Revolving Doors, and Space Travelers"

Standing for Something More: Respect and Article III

Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L. J. 1263 (2021).

The last Supreme Court Term featured a bumper crop of important decisions on standing, justiciability, and remedies. The outcomes were not monolithic. Some were sympathetic to those seeking access to judicial remedies in federal court, while others seemed to erect significant barriers—even in stark defiance of the express will of the federal government’s two other branches. The Court’s recent pronouncements also reveal sharp divides among the justices about issues at the heart of what they and the rest of the federal judiciary actually do: determine whether and when parties are entitled to judicial remedies.

Against this backdrop, Rachel Bayefsky’s article offers an especially timely and valuable contribution. Bayefsky identifies and critiques what she calls the “circumscribed” approach to the remedial authority of federal courts. At the core of this approach is a presumption that judicial remedies address solely the parties’ material circumstances. As Bayefsky shows, this vision undergirds the Court’s (or at least some justices’) attitudes on a range of issues—whether parties have Article III standing to sue in federal court, whether an offer of complete relief to a class representative can thwart a class action by mooting the representative’s individual claims, whether suits seeking only nominal damages may proceed in federal court, whether a party has “prevail[ed]” such that they are entitled to attorney fees, and whether injunctive relief for unconstitutional conduct may extend “nationwide.” For these issues, the circumscribed theory threatens to restrict or burden access to the federal courts and the power of those courts to remedy legal violations. And the circumscribed approach often acts as a matter of constitutional law—dictating the scope of Article III’s “case or controversy” requirement in a way that shuts the doors to federal courts. Continue reading "Standing for Something More: Respect and Article III"

Institutions, “Indian-ness,” and ICWA Implementation

Hana E. Brown, Who Is an Indian Child: Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States, 85 Am. Soc. Review 776 (2020), available at SAGE.

The Indian Child Welfare Act (ICWA) is under attack,1 and legal scholars (including me) have written much about it. But being lawyers, we typically focus on judicial decisions, and within that set, on decisions with precedential impact. That makes sociologist Hana Brown’s Who Is an Indian Child: Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States a welcome intervention. By examining the different ways that social workers, state courts, and federal judges apply ICWA’s “Indian child” definition, Brown provides valuable insights not just on ICWA, but on race-making generally and the importance of institutional context in translating law into practice.

To be covered by ICWA, a child must be an Indian child as the statute defines it. The definition rests on tribal citizenship: a child must be either enrolled in a tribe, or be eligible for enrollment and have a biological parent who is enrolled. 25 U.S.C. § 1903(4). But social workers and courts have applied the definition through a racial lens and excluded children from coverage because they were not racially Indian enough. Exclusion denies children, families, and tribes ICWA’s protections for family preservation and tribal sovereignty. Continue reading "Institutions, “Indian-ness,” and ICWA Implementation"

What Does Civil-Rights History Have to Say About Abortion?

Jennifer Holland’s well-researched, captivating history will open a new chapter in historiographic debates about the pro-life movement’s roots—and about the racial politics of abortion. Focusing on antiabortion organizing in the Four Corners region of the United States (an area encompassing all or part of Colorado, Utah, Arizona, and New Mexico), Tiny You explores how abortion became (and remained) the defining political issue for social conservatives. Holland offers a provocative look at the long shadow cast by civil rights law on so many of our debates, exploring how conservative social movements have laid claim to those traditions in profoundly consequential ways.

In recent years, historians of the 1960s and 1970s have documented how abortion foes redefined their cause as a quintessentially legal, rather than religious, cause. The movement successfully leveraged the strategies of the civil rights movement to justify restrictions and outright bans on abortion. Pro-lifers relied on the rhetoric of civil rights in the political and legal arena. In court, pro-life attorneys invoked race-discrimination jurisprudence, pointing to the Equal Protection Clause to establish unborn children as a protected minority. Some scholars suggest that pro-lifers’ turn to civil rights was both sincere and transformative. What had been a Catholic movement won allies with different political perspectives and religious backgrounds. In the late 1960s and early 1970s, some secular activists, Mormons, Orthodox Jews, and mainline Protestants had joined the movement. By the 1980s, evangelical Protestants, even those opposed to busing and key planks of the civil-rights agenda, joined the movement in increasing numbers. By moving away from explicitly Catholic arguments—and by playing down opposition to contraception—abortion foes built a more religiously diverse movement. All the while, as pro-lifers painted their struggle as a fight for civil rights, the movement remained predominantly white. Continue reading "What Does Civil-Rights History Have to Say About Abortion?"

Acknowledging Contract Law’s Contributions to Racial Inequities

Danielle Kie Hart, Contract Law & Racial Inequality: A Primer, 21-05 Sw. L. Sch. Res. Paper 1 (2021), available at SSRN.

For nearly a year and a half, our country has been in the grips of a global pandemic. Covid-19 has exposed and exacerbated racial and economic inequities that have plagued our society for centuries. As we have grappled with the dual pandemics of Covid-19 and systemic racism, there has been a renewed focus on interrogating historical and current practices that have contributed to the inequalities that many communities of color experience.  In her recent thought-provoking essay Contract Law & Racial Inequality: A Primer, Professor Danielle Kie Hart examines the role that contract law has played in creating, maintaining, and perpetuating such inequities. She argues that acknowledgement of this role is critical if America is to become a more equitable society.

Professor Hart begins her essay by detailing the medical and economic harms that members of Latinx, Black, indigenous and immigrant communities have disproportionately experienced during the pandemic. Death rates, job and wage loss, and housing and food insecurity were proportionately higher for communities of color, and, generally speaking, such communities did not share in the increases in wealth that occurred during the pandemic. According to Professor Hart, this disparate reality can be explained, in part, by the historical and present operation of contracts and contract law in our society. Continue reading "Acknowledging Contract Law’s Contributions to Racial Inequities"

One Less Reason to Believe There is A Moral Duty to Obey the Law

Hasan Dindjer, The New Legal Anti-Positivism, 26 Leg. Theory 181 (2020), available at Cambridge University Press.

Law claims supremacy in determining behavior; officials act as if law subjects have moral obligations to do what the law requires them to do. However, it has proven notoriously difficult to defend the idea that there is a general moral duty to obey the law, even in a democracy. Traditional arguments in political philosophy using general considerations have run into a number of difficulties. Recently, hope of bypassing those difficulties has come from what Dindjer calls the “one-system view” of law presented by a new school of anti-positivism. As Dindjer interprets this view, it holds that legal norms and moral norms belong to the same normative system.1 It follows that a legal obligation just is a kind of moral obligation; and so, there is always a moral duty to obey the law. (The one-system view applies to other legal incidents as well, such as legal powers and legal privileges.)

Dindjer sets out to show that the one-system view of law so understood is untenable by finding counterexamples in familiar legal content or, in some cases, possible legal content. Unlike traditional critics of anti-positivism, Dindjer does not simply trot out legal requirements that are egregiously evil and laws that are outrageously unjust; in fact, he rarely mentions them. Many of his exemplar laws are morally flawed, but in subtle and familiar ways. Sometimes they are flawed only at the periphery because of over-inclusiveness. Continue reading "One Less Reason to Believe There is A Moral Duty to Obey the Law"

On Pointe: The Right of Children to Explore their Gender Identity

Marie-Amelie George, Exploring Identity, 54 Fam. L. Q. __ (Forthcoming, 2021), available at SSRN.

I recently came across a pilot podcast series from Scottish Ballet called Scottish Ballet’s Half Hour Call. The premise of the podcast is to discuss how ballet and ballet companies fit the world we currently live in. In the second episode, dedicated to masculinity in ballet, Myles Thatcher (choreographer and dancer at San Francisco Ballet) shared a story that made me think of Professor M.A. George’s captivating latest article, Exploring Identity.

Thatcher relates how exciting it was that while he was choreographing a piece for Ballet22 (twodos), a body type, gender identity, and race inclusive company that performs dances that break gender normative traditions, he started looking at pointe shoes in a new way. Even though he has been aware that gender exists beyond the binary, that collaboration made him realize that “a pointe shoe is not a gender object.” Transcending ballet’s common binary understanding of gender opened up for Thatcher new avenues of creativity and experimentation in his choreography. Continue reading "On Pointe: The Right of Children to Explore their Gender Identity"

Judging Gender

Increasingly, courts in the United States and Canada are called to rule on parental disputes about the gender identity and expression of children. Often in the background of a custody dispute, courts are faced with the task of deciding what parental arrangement is better to support the gender identity/expression journey of a young child. In the classic case, one parent encourages the gender exploration of the child and the other objects, often also accusing the supportive parent of putting ideas about gender nonconformity into the child’s head. This new terrain raises serious questions about gender, equity, and the best interests of the child. And, of course, both in the U.S. and Canada, cases are often accompanied by wide media coverage and politics that try to drag this situation into the culture wars.

To the rescue arrive two excellent and original articles, one from Canada, Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts, and the second from the U.S, Exploring Identity. They are not the same, but they tackle similar questions. Each is valuable, and together they provide rich and largely missing context that can guide courts, litigants, and policymakers when they navigate these relatively new and complex cases. They provide clear analyses of relevant terminology, science, doctrine, and caselaw, and each makes specific policy recommendations. Continue reading "Judging Gender"

“Trademark, Labor Law, and Antitrust, Oh my!”

Hiba Hafiz, The Brand Defense, 43 Berkeley J. Emp. & Lab. L. __ (forthcoming, 2022), available at SSRN.

I am allergic to antitrust law, but after reading Hiba Hafiz’s recent article, I understand that my aversion is problematic. This paper combines an analysis of trademark law, labor law, and antitrust law to explain how employers exploit trademark law protections and defenses to control labor markets and underpay and under-protect workers. For most IP lawyers and professors, this article will open our minds to some collateral effects of trademark law’s consumer protection rationale on other areas of law with important consequences for economic and social policies.

The Brand Defense says it “takes a systemic view of intellectual property, antitrust and work law,” which means reading it demands keeping several balls in the air and following their interacting paths. It is worth the effort. Here are three paths the article’s argument follows. Continue reading "“Trademark, Labor Law, and Antitrust, Oh my!”"

Empire’s Residue

Paul F. Scott, The Privy Council and the constitutional legacies of Empire, 71 N. Ireland Legal Q. 261 (2020).

On July 1, 1997, sovereignty over Hong Kong was transferred from the United Kingdom to the People’s Republic of China, and, so the story goes, the sun finally set on the British Empire. Except it didn’t. As Paul Scott masterfully explicates in The Privy Council and the constitutional legacies of Empire, the Empire endures, both in terms of ongoing control over Overseas Territories unlikely to become independent, and in the retention of formal mechanisms of constitutional governance which hide this imperial residue from the domestic constitutional order.

Scott’s article is part of a symposium edition of the Northern Ireland Legal Quarterly, entitled “The Constitutional Legacies of Empire.” This broader project is of a piece with comparative and global constitutionalism’s increased—and important—focus on colonialism and decolonization. For example, in an editorial in March 2020, the editors of Global Constitutionalism charged constitutional scholars to “decolonise constitutional law” through “a commitment to analyzing the colonial legacy in constitutional formation, the contemporary rights regime, and international public law, from both theoretical and historical perspectives.” Scott turns a critical eye on the British constitution itself and calls for a reckoning “with the legacy, and indeed the ongoing reality, of the British Empire.” Continue reading "Empire’s Residue"

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