Monthly Archives: July 2017

Qui Custodiet Custodes? A Hard Look at International Arbitral Institutions

Arbitral institutions like to be discreet, and would perhaps be content if it were generally assumed that they perform a merely clerical and administrative function. Such a posture would be untenable. The tasks necessarily allocated to such bodies are central to any assessment of the legitimacy of the arbitral process. Given that commentators those looking for a soapbox seem to find it easy to have categorical opinions about arbitration, with an intensity inversely proportional to their acquaintance with facts, this is a welcome book, dispassionate but critical, which should allows its readers to bring greater discipline to their analysis—whatever may be their ideological predispositions.

Behind a deceptively bland title, Rémy Gerbay provides a conceptual framework which should allow evaluation of the international arbitral mechanism to be conducted with greater seriousness. A French scholar who has particularly cosmopolitan credentials, he holds degrees not only from his native country but also Switzerland, the United States, and the United Kingdom; and practicing licenses in the US and England. Now a lecturer at the School of International Arbitration at Queen Mary University of London, he had previously distinguished himself as a young Deputy Registrar of the London Court of International Arbitration—an experience which allows him to write with authority and meaningful perspectives on this subject. Continue reading "Qui Custodiet Custodes? A Hard Look at International Arbitral Institutions"

Just Confidentiality

William H. Simon, Attorney-Client ConfidentialityGeo. J. Legal Ethics (forthcoming, 2017), available at SSRN.

In a concise and elegant essay, titled Attorney-Client Confidentiality: A Critical Analysis, William H. Simon offers a compelling justice-based critique of the doctrine of confidentiality. Defined broadly to encompass all “information related to the representation” of a client, the traditional doctrine, dubbed by Simon “strong” confidentiality (p. 1), forbids disclosure unless narrow exceptions apply (see Rule 1.6). Challenging both the expanse of the doctrine and its categorical posture, Simon instead advances what he calls “moderate confidentiality”—a duty that would “mandate preservation of confidentiality except where disclosure is clearly necessary to avert substantial injustice.” As Simon explains:

The moderate duty is sensitive to context and demands complex judgment on the part of the lawyer. In every case where confidentiality threatens to work injustice, the lawyer must weigh the value of client loyalty against the competing harm disclosure would avert. By contrast, the strong confidentiality of current doctrine is more categorical in form and seems designed to minimize judgment. Once there is a presumptively confidential communication, the lawyer is directed to consult a list of exceptions. If there is no relevant exception, confidentiality prevails over competing considerations, no matter how weighty they are. (P. 2.)

In so doing, Simon first rejects the two common justifications for strong confidentiality: the notion that strong confidentiality is needed to foster trust in the attorney-client relationship, which in turn makes the representation more effective, and the vindication of law and legal rights. Both justifications are codified in comment 2 to Rule 1.6. The comment reads in relevant part, “[confidentiality] contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively,” and adds that “[a]lmost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct.” (Rule 1.6, cmt 2.) Continue reading "Just Confidentiality"

Healthism in the Current Political Climate

Jessica L. Roberts & Elizabeth Weeks Leonard, What Is (and Isn’t) Healthism, 50 Ga. L. Rev. 833 (2016), available at SSRN.

As we are all aware, the current political time is one of great upheaval and unsureness in numerous areas, with health care and the health care system repeatedly taking center stage. The change in the presidential administration coupled with the Republican majority in both houses of Congress have led to many new approaches to the health care system being proposed, debated, hurriedly being voted on, amended, withdrawn, and subjected to a hot and passionate debate. As this is going on, recent polling has made it clear that a significant percentage of the voting population in this country had no or minimal understanding about how health care laws affect them and their loved ones, leading to a pattern of voting in the 2016 elections that often appeared to be against voters’ self-interest.

As we grapple with analyzing and communicating the ramifications of proposed changes, the analytic approach to assessing the effect of health care policy delineated in Roberts’ and Weeks Leonard’s article, What is (and isn’t) Healthism, has much to offer in a climate wildly different than the one in which it was written. Healthism, as this article and a forthcoming book define it, is a form of discrimination based on a person’s health status. As the article states in the introduction, the passage of the Affordable Care Act in 2010 created significant protections for persons with health problems. For example, that law prevents discrimination in the health insurance market against those with preexisting conditions. Taking the question of disparate treatment further, the authors consider the possibility that a person’s health status could be the basis for disparate treatment in a number of other areas, such as employment and the provision of services, privileges, or opportunities. In light of the possibility of multiple arenas for this type of discrimination, the article asks when, if at all, the law should intervene to protect persons from these wrongs, and then presents a framework for answering that question. Continue reading "Healthism in the Current Political Climate"

Found in the Archive

Richard Chused and Wendy Williams, Gendered Law in American History (2016).

Every major dimension of contemporary American family law underwent transformation in the 19th Century. Indeed, I have argued at considerable length that American family law was invented in the 19th Century. 1 Many of the most difficult and intractable legal issues in the field carry 19th Century legal rules, doctrines, ideologies, debates, and practices forward to the present. Some of these vestigial aspects of 19th Century family law emerge in a slurry of semi-congealed elements that took shape then and have stayed in play despite major transformations in the field since; others persist in their 19th Century form, albeit with more contemporary contents. It’s impossible to work in contemporary American family law without asking oneself, again and again, what did happen with this issue or that in the transformative-yet-reactionary 19th Century?

But for those of us who are not legal historians, answering that question is very hard work. There are plenty of classics to turn to, from Michael Grossberg’s Governing the Hearth to Hendrik Hartog’s Some Day All This Will Be Yours2 But a new resource offers a comprehensive, elegantly curated collection of primary documents that shed light on a range of the most important themes: Gendered Law in American History by Richard Chused and Wendy Williams. This rich resource—more than 1200 pages—is ideal summer reading for family law enthusiasts! Continue reading "Found in the Archive"

Democracy’s Golden Rules

These are interesting times to be an historian of democracy. Historians are beginning to explore the myriad ways that people outside of and even within political officialdom have pressed their claims for recognition, respect, and inclusion in politics, governance, and society. This work is steadily reshaping our understanding of the historical relationships between law, democracy, and the state. At the same time, we have witnessed recently the emergence of a politics that appears to many to have up-ended many of our ideas and practices of democracy. Political ethics of virulent self-aggrandizement, relentless short-term thinking, and total retaliation, in particular, are increasingly prominent. In this moment of heightened attention the question persists: what is democracy?

Too often we reduce democracy to principles like majoritarianism, egalitarianism, or to institutions like voting and elections. In Toward Democracy, James Kloppenberg refuses to be cabined by reductionist or essentialist conceptions of democracy. Instead, his focus is on how Western thinkers developed an ethical (as opposed to an institutional) framework for democracy, a set of “principles” and “premises” which, he claims, grew out of Christianity. These ethics form a dissonant political harmony that makes democracy a fragile political experiment, containing both the highest aspirations of humanity and the seeds for their betrayal. Continue reading "Democracy’s Golden Rules"

Was Foucault a Liberal and Should We Care?

Foucault and Rights is intriguing and impressive at two levels: one exegetic; the other political. They can only be separated analytically, and they overlap and are interwoven in this book, but beyond a brief characterization of the exegetical virtues of the work, I will focus on politics, for two reasons. The first is simply that I am not a specialist on Foucault’s oeuvre. So I will not pretend to provide for Golder what he does so well for Foucault: an immanent exegetical critique. I will just say that Foucault and Rights is a masterly account and meticulous excavation of some of the deeper layers of Michel Foucault’s thought, postulating and persuasively arguing for underlying coherences in the face of apparent surface inconsistencies. It is exemplary immanent critique: immanent because the aim is primarily to explore the internal theoretical resources of Foucault’s thought to situate what he has to say about rights; and critique in a classical sense that does not immediately imply disagreement, still less hostility but is compatible with deeply sympathetic archaeological recovery and reconstruction; to use Golder’s phrase from another context, ‘critical affirmation’. The exegesis is assured, authoritative, intimately versed.

A second reason to think separately about the political concerns of this work is that they are important and unconcealed motivators – not determinants but motivators – of the interpretation Golder arrives at. For Foucault’s late invocations of rights present not merely an apparent problem of intellectual coherence, given his early critiques of what many have taken to be the metaphysical grounds of liberalism generally, and rights talk more specifically, but an apparent source of both political embarrassment to adepts and disciples of the earlier Foucault, and unembarrassed glee mixed with Schadenfreude to erstwhile liberal critics, who are pleased he had come to his senses at last.

People of a certain age, and alas I am one, might have a feeling of déjà vu all over again, confronted with this predicament. We have been here before. There was Althusser’s strenuous and Stalinist insistence on an ‘epistemological break’ in Marx’s thought, to avoid being sucked into his political embarrassing critical philosophy. Later, and at the darkest extreme, they will remember the discomfort of many of Heidegger’s philosophical admirers or those of Paul de Man, when their political allegiances were revealed. Altogether less sinister, and closer to our subject, is the furore that that doyen of Marxist historians, E.P.Thompson, caused when in Whigs and Hunters, a book which for 258 of its 269 pages would have raised no controversy on the Marx-inspired Left, ended with an eloquent paean to the rule of law as a ‘cultural achievement of universal significance’. There would not have been much of a fuss, or even notice, if Hayek had written such a coda, but it was deeply disquieting to many who considered themselves to have been on Thompson’s team. Many of his erstwhile supporters found these eleven pages in a life’s work inexplicable, and if explicable unforgivable. He had gone over to the Dark Side. My own feelings in 1976 were a bit different. I became fond of Thompson precisely at that time, and for that reason, and have remained so. Reading Golder’s account, it’s beginning to happen again with Foucault. Continue reading "Was Foucault a Liberal and Should We Care?"

Private No More: Exposing the Praxis of Comparative Law for What It Is

I liked Privacy Revisited, not the least because Ronald Krotoszynski’s book – both explicitly and implicitly – lays bare and grapples with comparative law’s thorniest methodological problems. It is inspiring to see a colleague struggling so honestly and openly with these issues.

This might sound like curious praise. After all, this is a book about privacy law in a variety of jurisdictions and I have not said that what I most appreciate about Privacy Revisited is its masterful treatment of that confounding subject.  The reason for this is that Krotoszynski’s sweeping survey of privacy law in the United States, Canada, South Africa, the United Kingdom, and the European Court of Human Rights is as knotty as the subject itself. Continue reading "Private No More: Exposing the Praxis of Comparative Law for What It Is"

Courtesy Without Copyright

It is now a familiar point that positive law accounts for only part of the systems that regulate human behavior. Robert Ellickson’s cornerstone treatise, Order Without Law, showed how closely-knit groups construct norm-based rule structures that govern behavior more efficiently than state-created law. In the past decade or so, scholars have investigated a number of areas in which individuals engaged in creative production similarly opt for norm-based systems in lieu of copyright or trademark law.

Professor Robert Spoo’s recent article, Courtesy Paratexts: Informal Publishing Norms and the Copyright Vacuum in Nineteenth-Century America, represents a fascinating and important contribution to this growing literature. Spoo’s article harkens back to the mid- and late 1800s, a time when foreign authors received no copyright protection in the United States. In the absence of formal legal protection for foreign authors’ works, domestic publishers created a series of agreements with each other that the first house to print copies of a foreign author’s novel would be able to do so without competition—even in the absence of enforceable copyright law. These informal agreements were expressed and furthered to a large extent by courtesy paratexts: Brief written passages in the front matter of a book in which the book’s author would affirm that the publisher was acting within the courtesy of the trade to print their work, and exhorting readers to buy only authorized editions to assure the author and publisher alike their fair remuneration. Continue reading "Courtesy Without Copyright"

Disruptive Platforms

Orly Lobel, The Law of the Platform, 101 Minn. L. Rev. 87 (2016), available at SSRN.

Until recently, the law of the online platform involved intermediary liability for online content and safe harbors like CDA §230 or DMCA §512. The recent rise of online service platforms, a/k/a the “Uberization of everything,” has challenged this model. What Orly Lobel calls the “platform economy”—which includes the delivery of services (see Task Rabbit), the sharing of assets (see Airbnb), and more—has led to new laws, doctrinal adjustments, and big questions. What happens when the internet meets the localized, physical world? Are these platforms newly disruptive, or old issues in new wrapping? And how do we best design regulations for technological change? The Law of the Platform will appeal to those looking for thoughtful discussion of these questions. It will also appeal, more practically, to those searching for an encyclopedic overview of the fast-developing law in this area, from permitting requirements to employment law to zoning.

Lobel argues that the platform economy represents the “third generation of the Internet”: built on online platforms, but affecting offline service markets. Unlike the first generation of the Web, which connected us to information through search engines, or the second generation, which disrupted publishing, news, music, and retail, the third generation is characterized by “transforming the service economy, allowing greater access to offline exchanges for lower prices.” The platforms do not themselves own the physical assets or hire the labor to which they provide access. Instead, they sell access and information—and desperately try to avoid labels like “employer” or “bank” that might lead to regulation. Lobel maps a number of these digital platforms to their physical world counterparts: Airbnb and VRBO to hotels; Parking Panda to parking sites; Uber and Lyft to taxis; and EatWith to restaurants. Continue reading "Disruptive Platforms"

Secrets and Lies in the History of US Adjudication

Amalia Kessler’s book, The Invention of American Exceptionalism, is a rich history of American procedural development. The book, which is meticulously researched, sets procedural developments in their political context, and is an excellent example of a social history of law. She describes the relationship between 19th-century procedural developments and struggles over both capitalism and race. She traces English influences on our history, such as the development of equity practice, and French influences, such as the Freedmen Bureau Courts, which were inspired by French conciliation courts. Among other things, Kessler unearths the American equity tradition and with it fights over judicial power versus lawyer (and jury) power, as well as the development of lawyering as we know it today.  There is too much in the book for me to adequately summarize it, so instead I will offer two vignettes from the book, the first conceptual and the second a narrative, both focused on the antebellum history of equity.

The first, conceptual, vignette describes the requirements of historic equity procedure and helps us understand our own practices by making them strange to us. Indeed, one of the best things about reading a historical study such as this is learning to understand our world in new ways by comparing it with a past understood on its own terms. So it is with the story of equity and the judicial search for truth. The modern cliché is that there was never a better test of truth than the cross examination. This idea, Kessler shows, was invented in the first decades of the nineteenth century by lawyers seeking to show their value to clients and to society. In equity practice at that time, a very different view of how to get to the truth prevailed: the truth would be best obtained in secret, without the pressures of the parties bearing down on witnesses to alter their stories. Continue reading "Secrets and Lies in the History of US Adjudication"

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