The Lawless Workplace

Law is simultaneously at the center and the periphery of Premilla Nadasen’s engaging study of the domestic workers’ movement of the 1960s and 1970s. The absence of regulation made the household a largely lawless space in which the shadow of the law—and of the civil rights movement—nevertheless loomed large. Though not primarily a legal history, Household Workers Unite highlights how the law’s limitations can foster collective action in sometimes surprising ways. Beyond the reach of New Deal legislation and of labor and employment regulation generally, the African American women who dominated the ranks of household laborers for much of the twentieth century campaigned not only for legal rights but for material and dignitary benefits beyond the law, pioneering new organizing strategies that paved the way for the twenty-first century labor movement.

The power of storytelling is central both to Nadasen’s book and to the legal and extralegal activism of the women she profiles therein. In spare, accessible prose, Nadasen introduces little-known characters who made history: Dorothy Bolden, a civil rights and economic justice activist who used city bus lines as an organizing site; Geraldine Roberts of Cleveland, Ohio, whose functional illiteracy did not stop her from launching one of the first domestic workers’ organizations; Josephine Hulett, a household worker in Youngstown, Ohio who mediated between local workers’ rights groups and the National Committee on Household Employment (NCHE); Edith Barksdale Sloan, the granddaughter of a domestic workers who became a lawyer and activist who facilitated the formation of the first national organization of household workers; Carolyn Reed, who used money earned from her household labor to gain financial and emotional independence from a loveless adoptive family and later became a national organizer and head of the NCHE.  Better-known figures such as civil rights icon Rosa Parks, Women’s Bureau head Esther Peterson, National Council for Negro Women leader Dorothy Height, and Representative Shirley Chisholm also make appearances, but it is household workers themselves whose stories rightfully dominate this thoughtful, often riveting narrative. Continue reading "The Lawless Workplace"

Law and Theory of Human Action

John Hyman, Action, Knowledge, & Will (Oxford Univ. Press, 2015).

Every once in a while a book comes along that completely changes the way scholars think about their field. In the realm of what is referred to as “Action Theory,” Elizabeth Anscombe’s Intention was such a book. Together with Ludwig Wittgenstein and Gilbert Ryle, Elizabeth Anscombe pioneered a revolution in philosophical thought that replaced the Cartesian paradigm of inner reflection with an emphasis on thought and meaning grounded in intersubjective practices and public criteria of meaning.

John Hyman works in the tradition of analytic philosophy of mind just described. His previous work has been in aesthetics (he is Professor of Aesthetics at Oxford) but, over the years, he has developed a position in action theory that is informed by the work of philosophers in the tradition mentioned above. In the book under review, Hyman works through the work of the philosophers just mentioned and advances a new way of thinking about human agency. His book should be of special interest to lawyers as it contains illuminating discussions of many topics found in law (e.g., will, action, act and knowledge). Continue reading "Law and Theory of Human Action"

Developing a Matrix for Intellectual Property as Subject of International Law

Intellectual property disputes implicating diverse and seemingly unrelated international legal regimes have become more frequent, acrimonious, and high-stakes. This trend has spawned an enormous academic literature endeavoring to rationalize the approach various interpretive authorities take to intellectual property disputes. Graeme Austin and Larry Helfer’s Human Rights and Intellectual Property offered a framework by which to resolve claims for or against intellectual property protection based on human rights arguments; Susy Frankel has extensively assessed the application of customary international rules of interpretation in furtherance of a rationalizing approach to complex IP conflicts; and Jerry Reichman, Paul Uhlir, and Tom Dedeurwaerdere have developed comprehensive approaches to questions arising at the intersection of international research efforts and potential IP-related obstacles. Edited volumes by Margo Bagley and Ruth OkedijiCarlos Correa and Xuan LiDaniel GervaisShubha Ghosh and Robin Paul MalloyChristopher May and Susan Sell, and Peter Yu similarly provide useful and targeted analyses of discrete IP-areas (e.g. patent and copyright) to particular contexts (e.g. development, disability, and innovation). The aforementioned works are by no means exhaustive but it is fair to say that none attempts to undertake the quite complex, more comprehensive question of intellectual property law as a fragmented part of the broader international legal order.

Enter Henning Grosse Ruse-Khan’s The Protection of Intellectual Property in International Law. Ruse-Khan, University Lecturer and Fellow at King’s College, Cambridge applies the broader theoretical elaboration of international law’s fragmentation to intellectual property disputes so as to provide a more comprehensive approach to issues raised by intellectual property’s overlap with discordant international legal regimes other scholars have tackled through narrower lenses. (P. 4.) This book is one I like a lot, and I hope others active in the study and shaping of international intellectual property law do as well. Intellectual property, Ruse-Khan reminds us, was a forerunner of the kind of fragmentation more systematically analyzed by the International Law Commission after 2006: “IP is . . . addressed, from diverse perspec­tives, in the United Nations Organization for Education, Science and Culture and the Food and Agriculture Organization of the United Nations as well as in the context of the Convention on Biological Diversity and the World Health Organization” even before trade and investment started playing their inevitably influential role. (P. 8.) Continue reading "Developing a Matrix for Intellectual Property as Subject of International Law"

Sometimes, Information Wants to be Expensive

Jonathan M. Barnett, Three Quasi-Fallacies in the Conventional Understanding of Intellectual Property, 12 J.L. Econ. & Pol’y 1 (2016), available at SSRN.

In the last twenty years or so, numerous IP scholars have questioned – indeed, many have vigorously doubted – the need for robust intellectual property rights in order to generate significant incentives to spur innovative and creative activity. In an incisive analysis, Jonathan Barnett offers an important riposte to what he views as the now “conventional wisdom” that society would be better off with much-diminished IP rights.

To do so, he dispels what he considers three key assumptions – so-called quasi-fallacies – underlying the wisdom of IP minimalism. Instead of simply resorting to a conclusory “property-rights-are-valuable” mode of critique, Barnett develops his compelling, economically grounded arguments using a variety of original case studies, data, and theoretical insights. Instead of attacking hypothetical strawmen, Barnett directly confronts the empirical claims of the minimalist camp. Continue reading "Sometimes, Information Wants to be Expensive"

Federal Funding with State Flexibility: A Timely Look at Federalism and Health Care Reform

Nicholas Bagley, Federalism and the End of Obamacare, 127 Yale L.J. F. 1 (2017).

In our era of increasingly divisive politics and fiery rhetoric, particularly around Obamacare and efforts to repeal it, Nicholas Bagley’s article, Federalism and the End of Obamacare, is a rare treat. It is a thoughtful, balanced look at the arguments for the respective roles of federal and state governments should play in the financing and regulation of health care.

Professor Bagley’s article makes three key points that are highly relevant to the current debate about the future of Obamacare: First, only the federal government has the fiscal capacity to fund health care; second, states should be granted significant flexibility in regulating their health care markets, even if that means that they’ll sometimes get it wrong; and third, current reform proposals do not empower states, but rather take power away from the states by deregulating (and defunding) health care. Continue reading "Federal Funding with State Flexibility: A Timely Look at Federalism and Health Care Reform"

The Libertarian First Amendment, the Shifting Apostrophe, and the One-Way Ratchet

In Expanding the Periphery and Threatening the Core, Morgan Weiland tells a story of how the First Amendment has slipped its moorings: how the Supreme Court, through its holdings in commercial speech and corporate campaign finance regulation cases, has decoupled the individual’s right to expression from the reasons for protecting that right; and how the libertarian turn in First Amendment theory, which devalues any interference with the flow of any information for any reason, has fused together protections for corporate and individual speech in a way that abandons First Amendment first principles. Weiland’s article also details the costs of First Amendment agnosticism—in a world where any regulation of speech affronts the informational rights of every listener, the State is powerless to distinguish between kinds of speakers or the quality of speech.

Weiland’s claim that First Amendment theory, properly oriented, should place primacy on listeners’ rights over the rights of speakers goes back to Justice White’s seminal line in 1967’s Red Lion that “it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount,” as well as to Jerome Barron’s work around the same time, which called for government interventions in the speech market because of its First Amendment-derived obligation to promote the public’s “adequate opportunity for discussion” of issues of public concern.1  Drawing upon the argument that expressive rights are functionally collective in nature, Weiland’s article makes an important contribution to First Amendment literature by detailing how far the modern Court has strayed from this baseline. Continue reading "The Libertarian First Amendment, the Shifting Apostrophe, and the One-Way Ratchet"

Putting the Bathroom Debate to Rest

Ruth Colker, Public Restrooms: Flipping the Default Rules, 78 Ohio St. L. J. (forthcoming, 2017), available at SSRN.

The site of toilets as a social justice struggle is at least as old as plumbing. Biological necessity and the unacceptability (and often criminalization) of public urination or defecation led to “restrooms” being made widely available. Public toilets– meaning any facility outside the home and including commercial, work, and educational places–are a necessity if one wants to travel, engage in business, be employed, or pursue an education. But while bodily requirements are almost universal, public toilets have been less democratic. At one time, many restroom facilities bore racially restrictive signs. Economic class divisions explicitly and implicitly sorted people. Access to toilets for people with disabilities has been uneven. And restrooms continue to be designated by gendered symbols announcing sex-segregated usage.

Professor Ruth Colker, an established authority in gender, sexuality, and disability law, intervenes in the current debate surrounding sex-segregated restrooms and suggests an elegantly simple solution. This solution sidesteps the convoluted machinations that have recently suffused the problem. Continue reading "Putting the Bathroom Debate to Rest"

Inspecting Big Data’s Warheads

“Welcome to the dark side of Big Data,” growls the last line of the first chapter of Cathy O’Neil’s recent book, Weapons of Math Destruction: How Big Data Increases Inequality and Threatens Democracy. As that sentence (and that subtitle) suggest, this is not a subtle book. O’Neil chronicles harms from the widespread use of machine learning and other big data systems in our society. O’Neil is convinced that something ominous and harmful is afoot, and she lays out a bill of particulars listing dozens of convincing examples.

This is a book that I like (lots) because we need outspoken and authoritative chroniclers of the downsides of big data decisionmaking. It advances a carefully articulated and well-supported argument, delivered with urgency and passion. For readers yearning for a balanced look at both the benefits and the costs of our increasingly automated society, however, keep searching. Continue reading "Inspecting Big Data’s Warheads"

Color Coded Criminal Procedure— Exploring How Law Enables Racism, Disparate Treatment, Violence

Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017), available at SSRN.

Why is it so easy for police to kill Black people?

The answer to this question is urgent in light of ongoing police violence across the country. Virulent videos of Blacks subjected to police aggression have spread nationwide by phones, computers, TVs and tablets. These troubling, yet spectacular visuals, have pulled the covers back to allow mainstream America to see the dark and ruthless nature of law enforcement. Unarmed Blacks have senselessly died by strangling, tasing, and shooting in the back at the hands of police. Recently reported was an unarmed man shot despite his being on the ground with hands raised in surrender. Another was reportedly killed despite lawfully carrying a firearm. The ample proof of police wrongdoing raises alarming flags about the status quo, where police killing of Blacks is prevalent and successful prosecution of police is not. Continue reading "Color Coded Criminal Procedure— Exploring How Law Enables Racism, Disparate Treatment, Violence"

On Gender Disparity and Dialogue

Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017), available at SSRN.

Jennifer Mika’s essay examining the scarcity of women arguing before the Supreme Court is a valuable contribution to a growing literature tracking gender disparities at all stages of the legal profession. Research has examined disparities in the way men and women experience the law school classroom, interact with professors, obtain clerkships, make partner at private firms, enter academia, gain tenure, and leave the profession altogether. Mika has made several contributions to this area of research.

In her latest work, Mika’s findings are stark. She draws upon two original data sets: one including every attorney who argued before the Supreme Court during the 2015-2016 term; the other including every attorney who has argued more than once in any term since 2010. During the 2015-2016 term, of the 117 people who argued before the Supreme Court, only 20 were women, or 17%. And since 2010, only 15 of 80 advocates who argued more than one case before the Supreme Court, or 19%, were women. Continue reading "On Gender Disparity and Dialogue"