Yearly Archives: 2016

Worth More Than a Thousand Words

Sherally Munshi, “You Will See My Family Became So American”: Toward a Minor Comparativism, 63 Am. J. Comp. L. 655 (2015), available at SSRN.

Sherally Munshi has written a thoughtful and moving article about the relationship among race, citizenship, immigration, and the visual imagery of assimilation and difference. In “You Will See My Family Became So American,” she tells the story of Dinshah Ghadiali, a Parsi Zoroastrian born and raised in India who immigrated to the United States in 1911, became a U.S. citizen in 1917, and prevailed over the federal government’s effort to strip him of that citizenship in 1932. Along with Ghadiali himself—proud American, soldier, erstwhile inventor, political activist, and all in all memorable character with a larger-than-life personality—the protagonists in the story are a striking series of photographs Ghadiali submitted into evidence in his denaturalization trial. Munshi’s bold and ranging exploration of a variety of themes in the legal history of race, citizenship, and immigration culminates in a close reading of these photographs, in which she shows how the images reveal the tension between the “effortful displays of Americanization… and unwitting disclosures of racial identity.” (P. 693.)

Munshi frames her discussion with a central doctrinal precedent and a proposed theoretical framework. The precedent is the Supreme Court’s decision in Thind v. United States, which in 1923 held that Bhaghat Singh Thind, “a high caste Hindu, of full Indian blood, born [in] India” was not “a white person” under the naturalization laws. Along with the previous year’s Ozawa v. United States (1922), which had held the same with respect to a Japanese man, Takao Ozawa (though with different reasoning—more on that below), the decision in Thind gave rise to efforts to denaturalize some who had become citizens before the decisions but were deemed ineligible afterwards, and formed the basis for Ghadiali’s (unsuccessful) denaturalization trial. Continue reading "Worth More Than a Thousand Words"

American Legal Ethics: Federalized, Privatized …Commercialized?

Renee Newman Knake, The Commercialization of Legal Ethics, 29 Geo. J. Legal Ethics 715 (2016), available at SSRN.

Previous scholarship has shown us how legal ethics in America has become “federalized” and “privatized.”1 In a recent essay in the Georgetown Journal of Legal Ethics, Renee Newman Knake outlines another modern phenomenon: the “commercialization” of legal ethics. Reading this piece, it becomes clear that the significant complexity now characterizing the regulatory environment for legal services in the United States, with state bars, courts, federal agencies and clients all now playing a role, shows no signs of waning.

Professor Knake’s essay focusses on two types of “profit-driven” entities: (1) legal services providers, described as “entities and individuals serving legal needs without the same training and authorization traditionally required of state-licensed attorneys”; and (2) lawyer ratings companies. The essay aims “to provoke consideration about the proliferation [of these two types of entities] in an effort to determine whether and how this phenomenon ought to inform the ways regulatory authorities conceptualize and implement legal ethics rules.” In relation to both types of entities, Professor Knake suggests that a mix of optimism and caution is warranted. She notes the promise of such entities filling some long-standing access to justice gaps while observing that careful study is warranted to measure the actual impact of their increasing presence. Continue reading "American Legal Ethics: Federalized, Privatized …Commercialized?"

Brink on Dworkin’s Originalism

David O. Brink, Originalism and Constructive Interpretation (Univ. of San Diego Legal Studies Research Paper No. 14-167, 2014).

What was Ronald Dworkin’s relationship to constitutional originalism? One might think that Dworkin rejected originalism. After all, he famously advocated a normative approach to constitutional interpretation—indeed, a “moral reading” of the Constitution—an approach seemingly at odds with the historical approach favored by originalists. Moreover, he was explicitly critical of appeals to the intentions of the framers; in particular, he was critical of appeals to the framers’ expected applications of constitutional provisions. The latter criticism figured centrally in his commentary on Justice Antonin Scalia’s Tanner Lectures, A Matter of Interpretation. But in Originalism and Constructive Interpretation, David Brink offers a novel interpretation of Dworkin, arguing that, in fact, Dworkin subscribed to a version of originalism. This originalism differs markedly, however, from Scalia’s form of originalism, as well as from other contemporary versions of originalism. For what Dworkin advocated was an originalism of principle.

Brink’s defense of his interpretation of Dworkin proceeds in roughly three stages. The first stage defends a view of the semantics of legal norms, claiming that Dworkin (who defended the determinacy of law) would need something like this view in order to respond successfully to H.L.A. Hart’s argument for legal indeterminacy in hard cases. Hart argued that legal rules are formulated in general terms, that general terms are “open textured” (with a core determinate meaning, and an indeterminate periphery), and that for this reason, hard cases are legally indeterminate: they must be decided by an exercise of judicial discretion. As Brink depicts Hart’s semantic assumptions, Hart assumes that the meaning of language in a legal norm is determinate as long as the meaning and extension of its terms is uncontroversial. Where there is disagreement about criteria for the application of a term or about its extension, the term’s meaning is indeterminate. Continue reading "Brink on Dworkin’s Originalism"

Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design

Mila Versteeg & Emily Zackin, Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design, Am. Pol. Sci. Rev. (forthcoming 2016), available at SSRN.

In their recent paper in the American Political Science ReviewVersteeg and Zackin offer an important contribution to evolving debates on constitutional design, convergence and diffusion. They suggest that, far from being the only model in circulation in global constitutional thinking, the US constitutional model of highly abstract and entrenched constitutionalism is in fact no longer even the dominant model: at a US state level, and globally, a quite different model of very specific and flexible constitutionalism is in the ascendancy. This model blurs the line between constitutions and ordinary legislation. It also reflects a quite different kind of thinking about the relationship between constitutions, democracy, and the people: rather than empowering courts to interpret vague or abstract constitutional guarantees, and entrenching those decisions against repeal by ordinary democratic majorities, Versteeg and Zackin suggest that this model seeks to constrain courts, legislators and executive actors to act in line with the preferences of a majority of citizens.

In this sense, it represents a quite different take on traditional understandings of democracy and distrust: it is the expression of a form of popular distrust of elite institutions generally, rather than more particularized distrust of legislators of the kinds such as John Hart Ely envisaged.1 Versteeg and Zackin further argue that there is a close logical relationship in this context between a preference for constitutional specificity and flexibility: specific constitutions may help popular majorities control elite actors, but they are also more likely to require active updating by citizens themselves, rather than elite actors. As I have also suggested in prior work, whatever the scope for courts and legislators to update of a constitutional standard by way of ‘common law interpretation’,2 or polycentric forms of interpretation,3 there is far less scope to apply such approaches to more specific rule-like constitutional provisions.4 Continue reading "Constitutions Un-entrenched: Toward an Alternative Theory of Constitutional Design"

Registration and its Discontents

Rebecca Tushnet, Registering Disagreement: Registration in Modern American Trademark Law, 130 Harv. L. Rev. (forthcoming), available at SSRN.

Much work has been done on the theoretical foundations of trademark law generally, but very little on trademark registration specifically (at least in the U.S.). The reason is that, for most of the last fifty years, courts have been telling us that, with a few exceptions, registration really doesn’t matter. Courts evaluate the validity of an unregistered mark under essentially the same standards as registered marks, and they use the same likelihood-of-confusion analysis to determine infringement.

But it turns out to be hard to maintain a rule that registration means nothing when the Lanham Act clearly was intended to create some substantive rights that did not previously exist. It’s also difficult to ignore the elaborate regulatory apparatus the PTO has constructed to evaluate applications to register – one that includes detailed rules about the format in which a mark is claimed and the goods and services are described, and that provides for administrative proceedings to oppose or cancel registrations. Why would any of that exist, and why would companies spend so much time and money dealing with registration, if it was meaningless?

So, not surprisingly, registration does sometimes matter to courts – indeed, in its recent B&B Hardware decision, the Supreme Court described it as significant. But how is it significant, and when? As Rebecca Tushnet wonderfully demonstrates in her terrific new article Registering Disagreement: Registration in Modern American Trademark Law, there is no consistent answer to that question, because trademark law has no theory of registration. Continue reading "Registration and its Discontents"

Yes, Cross-Market Hospital Mergers Can Really Drive Up Costs

Leemore S. Dafny, Katherine Ho & Robin S. Lee, The Price Effects of Cross-Market Hospital Mergers (NBER Working Paper No. w22106, 2016).

The Price Effects of Cross-Market Hospital Mergers, by economists Leemore S. Dafny, Kate Ho, and Robin S. Lee is a must-read for anyone interested in healthcare price and competition. Now, don’t get scared off by the fancy equations and economic terms like “concavity”—there is more than enough substance in plain English to make this paper accessible to an interested non-economist. The paper provides a missing link in current antitrust enforcement efforts by providing both theoretical and empirical evidence demonstrating that cross-market mergers can harm competition in ways that could violate both state and federal antitrust laws. Despite anecdotal claims to the contrary, antitrust enforcers have argued for years that cross-market mergers could not drive up the price of healthcare. Yet, we have continued to see significant consolidation in the healthcare system, both within and across geographic and product markets, along with the price increases that tend to accompany that consolidation.

Cross-market mergers have gone entirely without scrutiny from federal and state antitrust enforcers, who have argued that causes of action based on such mergers lack both a theoretical and empirical basis. However, a handful of scholars and international regulators—e.g. Vistnes & Sarafides and the European Commission—have begun to argue more forcefully that cross-market mergers can drive up costs even in markets that lack overlapping product and geographic markets, by creating what they call “portfolio power.” But, until now, there has been a lack of empirical evidence to demonstrate that cross-market hospital consolidation could drive up costs. Continue reading "Yes, Cross-Market Hospital Mergers Can Really Drive Up Costs"

Scalia’s Jurisdiction

Fred O. Smith, Jr., Undemocratic Restraint, UC Berkeley Public Law Research Paper (2016), available at SSRN.

Chief Justice John Marshall once veered toward tautology in asserting that the Supreme Court “must take jurisdiction, if it should.” In context, Marshall seemed to be saying that the Court’s jurisdiction is properly set by actors other than itself, such as Congress or the Constitution’s drafters and ratifiers. Marshall therefore concluded that for the Court to either “decline the exercise of jurisdiction which is given,” or “usurp that which is not given,” would equally “be treason to the constitution.”

Yet the Court is often called on to construe the amorphous jurisdictional provisions of the Constitution, as well as federal statutes, and those efforts frequently require new, difficult judgments. So discretion has a way of working its way into even the most staunchly formalist efforts to ascertain federal jurisdiction, as most famously argued in a seminal paper by David Shapiro over thirty years ago. Continue reading "Scalia’s Jurisdiction"

Responding to Economic Inequality: The Place of Race

Olatunde C.A. Johnson, Inclusion, Exclusion, and the “New” Economic Inequality, 94 Tex. L. Rev. 1647 (2016).

Inclusion, Exclusion, and the “New” Economic Inequality by Olatunde C.A. Johnson (hereinafter The “New” Economic Inequality) addresses key questions that have arisen in this difficult era of austerity, retrenchment, and increased economic insecurity in rich countries. These questions include: where does racial inequality fit in the high-profile discourse about the (re)discovery of economic inequality? And, in a world of extreme and growing economic inequality, what kinds of inclusionary practices contribute to remedying racial inequality?

I read this article because I’m working on a research project1 about the role of law in implementing inclusionary practices. This project concerns inclusionary practices in Europe and Latin America, while The “New” Economic Inequality focuses on the legal customs, traditions, and remedial instruments of the United States. Fortunately, the article’s critical analyses of the limitations of historic “remedies” for racial inequalities in the U.S. and of the absence of race from much of the contemporary discourses of economic inequality are of broader significance, as are the article’s insights into the importance of place-centred remedies to struggles for racial equality. Continue reading "Responding to Economic Inequality: The Place of Race"

Rendering the Community, and the Constitution, Incomprehensible Through Police Training

The Supreme Court has increasingly relied upon the concepts of professionalism and police training when regulating police conduct under the Fourth Amendment. For the most part, however, academic interest in how the police are trained to select, encounter, seize, and search individuals on the street has remained anemic. Even the recent scholarship on implicit bias training is primarily oriented towards prescribing rather than reviewing current practices. Nancy Marcus’s article is a welcome antidote to this large gap in our legal knowledge.

Police training plays an important role in current Fourth Amendment doctrine. Since the early 1980s, the Supreme Court has engaged in the continuous, albeit intermittent, deregulation of policing. That deregulation consists in replacing external, judicial scrutiny of lots of police activity on the street with the internal review of subordinates by superior officers in each the many hundreds of police departments around the country. The Court’s deregulatory jurisprudence, which often centers around attacks on the exclusionary rule and its underlying rationale, reached its apogee in the 2006 case, Hudson v. Michigan. In Hudson, Justice Scalia, writing for the majority, insisted that:

we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been wide-ranging reforms in the education, training, and supervision of police officers.…Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline.

Unfortunately, Justice Scalia relied on a single sentence in a single page in a single source for his evidence of training reform. Anyone who has studied—or tried to study—police training knows how disingenuous the Court’s statement was: police training is almost as fragmented as policing itself. Marcus’s article goes further: she demonstrates just how wrong Justice Scalia was to assume that police training tracks the Fourth Amendment’s demands. Continue reading "Rendering the Community, and the Constitution, Incomprehensible Through Police Training"

Introducing U.S. Law

Robert H. Klonoff, Introduction to the Study of U.S. Law (2016).

Teaching an introductory course on United States Law to foreign students is a challenging task, regardless of whether it is done in a U.S. law school as part of an LL.M. program or in a course taught abroad. LL.M. programs usually provide one such course each academic year. Some of these courses use material randomly assembled by the teachers and assigned to the class. Others use published casebooks, most of which are outdated or otherwise unsatisfactory, too synthetic to achieve their stated goal, lacking a unitary vision, and devoid of informative comparative angles.

Robert Klonoff’s Introduction to the Study of U.S. Law is the most updated, thorough, and precise text on the subject currently available. The first true “U.S. Law” casebook for foreign students and designed in the U.S. law school tradition, it embarks on its mission with intriguing comparative law angles, addressing questions that a foreigner might raise when first confronting U.S. law. Overall, the casebook offers a solid, engaging, and effective guide to the study of the pillars of the U.S. legal system. The selection of topics, the organization, and the clearly stated analysis make the book an effective tool for any foreign lawyer interested in taking the bar exam in the United States. But it is so much more than that. Continue reading "Introducing U.S. Law"