Monthly Archives: August 2016

The Lost Promise of Title VII

Katherine Turk’s elegantly written, deftly argued study of Title VII’s first half-century spotlights working-class women’s distinctive legal activism, deepening our understanding of the promise and limitations of American antidiscrimination law in an era of increasing income and wealth inequality. Using fine-grained case studies as emblematic of larger themes, Turk takes us deep into ground-level campaigns and controversies in a diverse array of workplaces, organizations, and government agencies, from the New York Times and the National Organization for Women (NOW) to municipal employees’ unions to hospitals and hotels where women and men struggled for better and fairer conditions for all workers. Working women built cross-class and interracial coalitions with labor and feminist organizations to fight for pay equity, comparable worth, higher safety standards and workplace protections, paid family and medical leave, occupational mobility, and accommodation of family responsibilities.

Equality on Trial documents how the expansive visions of workplace justice that animated workers and their advocates collided with formidable obstacles: class divisions among women, gender divides among workers, declines in union density and power, conservative counter-mobilizations against civil rights enforcement, and a neoliberal politics that elevated individual opportunity over structural reform. The result is a class-stratified world of gender and work, in which privileged women enjoy the limited benefits of formal equal treatment while their working-class counterparts languish in low-wage, contingent jobs where sex equality means the right to be treated as poorly as men. Elite women gained access to white-collar male-dominated occupations, but failed to unsettle the expectation that the ideal worker outsource all reproductive labor to unpaid spouses or underpaid domestic help. Working-class women, Turk contends, benefited little from the paltry concessions feminists won in the late twentieth century: stingy, unpaid family leave for which many low-income women are ineligible and few can afford to take; desexualized but hardly de-gendered working environments; equal pay for equal (but not comparable) work; freedom from pregnancy discrimination without an entitlement to accommodation; the right to work under the same dangerous and soul-crushing conditions as men. Continue reading "The Lost Promise of Title VII"

Taking Interpretive Statutes Seriously

William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. (forthcoming 2017), available at SSRN.

“Interpretation,” as used by Baude and Sachs, names the process that starts with legal texts and ends with their contribution to antecedent law. This is not the same activity as uncovering full linguistic meaning (though this may be necessary to determine legal contribution), nor is it extending or repairing antecedent law.

This article presents Baude and Sachs’s case that system-specific law governs interpretation of legal texts. In short, the positive law in particular legal systems generates interpretive principles that shape the legal content established by statutes (and constitutional provisions). The authors’ view rejects any theory of law or legal interpretation that insists, on conceptual grounds, that the materials for interpretation are common to legal systems or that mandates a standard of interpretation for parts of our system (e.g., the Constitution) based on conceptual claims alone (such as “the purpose” of a written constitution). Some of the examples Baude and Sachs offer of system-relative legal standards that I find plausible as governing interpretation are: the Dictionary Act, the “repeal-revival rule” of 1 U.S.C. section 108 (according to which new repeals don’t automatically revive old statutes), the general savings statute (according to which repeal does not erase liabilities arising under the old statute), and some traditional canons of interpretation such as the “Mens Rea Canon” and the presumption against retroactivity. Continue reading "Taking Interpretive Statutes Seriously"

The Plural Tort Structure of Copyright Law

Patrick Goold, Unbundling the ‘Tort’ of Copyright Infringement, 102 Va. L. Rev. (forthcoming 2016), available at SSRN.

What kind of legal wrong is copyright infringement? Scholars tend to unreflectively regard copyright infringement as a tort. In his elegant and insightful recent article, Unbundling the ‘Tort’ of Copyright Infringement, Patrick Goold complicates this received wisdom by applying rigorous conceptual analysis to a body of law—copyright—that is rarely analyzed in those terms. In so doing, Goold invites us to see copyright law in a new and more nuanced light, and also seeks to show that courts’ purportedly scattered approach to infringement may not be so incoherent after all.

The central premise of Goold’s article is simple: the orthodox view of copyright infringement as a single tort mischaracterizes how courts actually resolve infringement cases. Calling on Prosser’s classic disaggregation of privacy into a “gallery of torts,” Goold identifies five different “copy-torts”: consumer copying, competitor copying, expressive privacy invasion, artistic reputation injury, and breach of creative control. Each of these different copy-torts, Goold argues, reflects the distinct interests that courts seek to vindicate using copyright law. Continue reading "The Plural Tort Structure of Copyright Law"

An Internationally Justiciable Right

Lisa Forman, Can Minimum Core Obligations Survive a Reasonableness Standard of Review Under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights?, 47 Ottawa L. Rev. (forthcoming), available at SSRN.

The U.S. legal discourse on health rights is impoverished, neglected, and underinformed. The right to health is reflexively dismissed as one of the affirmative rights that our tradition of negative liberties renders irrelevant. And there (I exaggerate only slightly) conversation stops. But when we inspect this conversation-stopper, it is based on overgeneralization. The truth is more fact-dependent. Lisa Forman, in Can Minimum Core Obligations Survive a Reasonableness Standard of Review Under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights? (forthcoming in the Ottawa Law Review), gives us a window into the granular.

Managing to adjudicate an “unwieldy” health right

Although the right to health, as a right of the economic, social, and cultural variety, is often thought to be a right to some affirmative state provision rather than a negative liberty from state action, this assumption is belied by laws in the U.S. that can function as negative rights to health. For instance, some laws protect private use of plant varieties relating to essential foodstuffs against enforcement of government-granted monopolies, or provide procedural rights for a health impact assessment prior to government action that harms health. Those examples reveal statutes or regulations that restrict governmental power to infringe on individuals’ right to health. Nevertheless, once labeled as “positive rights,” health rights frequently assume a reputation as unmanageable. Forman voices this conventional wisdom succinctly: the realization of the right to health, under this skeptical view, “requir[es] extensive state action and resources, so that judicial enforcement would reallocate budgets and alter social policy, breaching the appropriate democratic separation of powers and wreck[ing] budgets.” And yet, jurisdictions outside the U.S. manage to adjudicate such rights day in and day out, handling them just as the legal system treats all kinds of other unmanageable questions, by generating thick, fact-rich jurisprudence. Continue reading "An Internationally Justiciable Right"

Adventures in Co-Parenting: Charting a Course for Postmarital Families

Clare Huntington, Postmarital Family Law: A Legal Structure for Nonmarital Families, 67 Stan. L. Rev. 167 (2015).

Last year, Obergefell v. Hodges seized center stage as many family law scholars began evaluating the implications of the Supreme Court’s decision recognizing gay Americans’ constitutional right to marry. Other scholars, however, remained more interested in exploring the inverse phenomenon: the decreasing relevance of marriage and married life for many Americans. Specifically, research shows that many poor and working class Americans no longer find marriage to be a precondition for romantic relationships or parenthood. This group of Americans has formed what Huntington calls “postmarital families.” In her wonderful article, Postmarital Family Law: A Legal Structure for Nonmarital Families, Huntington explores the legal implications of this dramatic cultural shift.

Huntington begins by rendering visible the bifurcated world we currently inhabit now that marriage is no longer the institution that constitutively defines all families. One group of Americans, a relatively wealthier group, lives in marital families; the other, composed of less financially secure individuals, has formed nonmarital, or “postmarital,” family units. Yet family law, she argues, still treats all families as though they are marital families. As a consequence, “postmarital” families are forced to navigate ossified legal presumptions, ill-fitting rules, and institutional structures designed around marriage. Huntington’s discussion successfully renders visible postmarital families’ specific, unique dynamics and further reveals the way existing family law aggravates these families’ special vulnerabilities. She also shows how family law—its legal norms and institutions—must evolve to address postmarital families’ unique problems. Continue reading "Adventures in Co-Parenting: Charting a Course for Postmarital Families"

Squeezedness and Feminisms in the Age of Counterterrorism

Jayne Huckerby, Feminism and International Law in the Post-9/11 Era, 39 Fordham Int’l L.J. 533 (2016).

There are many reasons to like Jayne Huckerby’s most recent article, and many different ways to incorporate this work into your reading and classes. The article has appeal to feminist, international law, national security, and peace studies. There are several things this article does that I like lots. At its most basic level, it’s a helpful reminder of where feminisms stand on or in relation to the complex terrorism and counter-terrorism terrain. Huckerby takes an exhaustive review of the literature, in the best sense of the phrase, presenting scholars with copious notes detailing discussions in law reviews, peer-reviewed journals of allied fields, books, U.N. and U.S. government reports, and the popular press. Anyone eager to learn more about gender, feminisms, and international law, or to write a syllabus, would do well to comb her notes.

Huckerby’s writing is crisp, giving readers gems of legal thought like:

[A] post-9/11 account of women’s victimhood also tends to focus unduly on women’s experiences at the hands of non-State actors (terrorists), rather than to illuminate ways in which State counter-terrorism policies have also undermined women’s rights or to address a more complicated picture of victimhood whereby women often feel squeezed between terror and anti-terror.

(P. 557) (citations omitted). Continue reading "Squeezedness and Feminisms in the Age of Counterterrorism"