Monthly Archives: September 2017

Regulations Hinder Mobility and the National Economy

David Schleicher, Stuck! The Law and Economics of Residential Stability, 127 Yale L.J. (forthcoming, 2017), available at SSRN.

The principal goal of local zoning has been to assure existing residents a stable and comfortable community in which, above all, home values would be protected. In recent years, scholars have focused on whether this cozy arrangement fosters class-based and racial exclusion, and whether it detracts from a sustainable environment. Yet, some leading economists suggest an additional concern—that restrictive local land use and other regulations harm the national economy. In a new article, David Schleicher performs an important service in analyzing, from a legal and public policy perspective, why people are “stuck” in place.

Schleicher’s title reflects his main points that rates of interstate mobility are falling even though people often get better job opportunities when they move, and that this lack of mobility harms the national economy as well as the individuals involved. Continue reading "Regulations Hinder Mobility and the National Economy"

The Trouble with Qualified Immunity

William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. (forthcoming 2018), available at SSRN.

Is Qualified Immunity Unlawful? This is the ambitious question that Will Baude tackles in a forthcoming article in the California Law Review. When plaintiffs file damages suits under § 1983 against government officials who violate federal rights acting “under color” of state law, they must overcome the defense of qualified immunity. That doctrine protects government officials from damages claims unless they violate clearly established law that a reasonable person would have known. The Court has emphasized that this is a high standard, protecting all but the “plainly incompetent and those who knowingly violate the law.”

While qualified immunity appears nowhere in § 1983’s text, its lawfulness tends to go unchallenged both in scholarship and in cases. Until now. Baude’s article interrogates the legal justifications for qualified immunity and finds them wanting. Neither text nor history is sufficient to sustain this highly consequential doctrine. He begins with the text, stressing the statute’s language, which purports to hold “[e]very person” liable who violates federal rights while acting under color of state law. Continue reading "The Trouble with Qualified Immunity"

To Authorize Sex with Oneself via Proxy or Advance Directive

Alexander A. Boni-Saenz, Sexual Advance Directives, 68 Ala. L. Rev. 1 (2016), available at SSRN.

May an individual consent to sex in advance of incapacity (or intoxication)? Can an individual consent prospectively to intercourse? Should we only recognize consent given contemporaneously with the sexual act? These are straightforward questions which reside within core human needs and autonomy, yet few have considered them in the elder law context. Consensual sex has been explicated by juries, lawmakers, and scholars with practically endless variations, but a temporal dimension to sexual consent has not.

A sexual advance directive might read: “I hereby consent to vaginal intercourse with my spouse upon and during my incapacity.” Advance directives are statutorily authorized for healthcare. What about for sex? Professor Boni-Saenz makes a convincing case for answering “yes!” in Sexual Advance Directives. An individual facing dementia may want to continue to have sex with her partner even after dementia has diminished or destroyed her capacity. If prospective sexual consent is invalid, her partner would be guilty of rape for an act of penetration with her even if she had unambiguously extended pre-incapacity consent. Continue reading "To Authorize Sex with Oneself via Proxy or Advance Directive"

Politicizing the Bar Exam 

Rachel E. Stern, Political Reliability and the Chinese Bar Exam, 43 J. L. & Soc. 506 (2016).

The bar exam has rarely been of great interest to legal scholars. Although its format and pass rate vary substantially across countries and jurisdictions, it is often dismissed as merely a qualifying exam aimed at “controlling the production of producers,” as Richard L. Abel argues in his seminal book American Lawyers. Even in Japan, where the bar exam pass rate used to be as low as 2-3%, most discussions contemplating reform have focused on whether or not it is desirable to increase the number of lawyers. Although many law professors have taken the exam—and some, famously, have flunked it—there seems to be little scholarly interest in understanding its content.

This is why Rachel E. Stern’s new study on how China politicized its bar exam is both refreshing and insightful. In the process of researching Chinese law, Stern keenly observed a phenomenon that most other researchers took for granted. In particular, over the past decade, a number of “political questions” have been inserted into the National Judicial Examination—China’s unified bar exam for judges, procurators, and lawyers. These questions are not aimed at testing the test-takers’ legal knowledge or technical expertise but, rather, their understanding of the “socialist rule of law and the correct role of the Chinese Communist Party (CCP)” (P. 507), which are only remotely related to legal issues or the structure of the legal system. Although the political questions account for merely a small percentage of all exam questions, given the exam’s relatively low pass rate (only 11% in 2013), most test-takers still take them seriously. Continue reading "Politicizing the Bar Exam "

The History of the Administrative Petition: Dispatches from the Lost World of Administrative Law

Daniel Carpenter, On the Emergence of the Administrative Petition: Innovations in Nineteenth-Century Indigenous North America, in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw 349 (Nicholas R. Parrillo ed., 2017).

“#DearBetsy,” tweeted civil rights activist Alexandra Brodsky on July 6, 2017, “Rescinding Title IX guidance moves us backwards when we desperately need progress in ending campus sexual violence.” The hashtag linked the message to many others, including personal accounts of sexual assault and also (contrary to original intentions) demands for greater protections for the accused. All these missives are aimed directly at Secretary of Education Betsy DeVos.1 And they are fascinating, for they suggest a regulatory landscape different from the one we teach in law school—a landscape in which savvy use of social media may be as important as the Administrative Procedure Act and in which people who lack conventional markers of influence demand the ear of top administrators. Fortunately, we have an excellent resource for understanding this landscape: a crop of historical work on petitions to government administrators. A particularly enlightening example is political scientist Daniel Carpenter’s contribution to Administrative Law from the Inside Out, On the Emergence of the Administrative Petition.

My first encounter with this vein of research was legal historian Kristin Collins’ work on military widows and their petitions for public pensions in the nineteenth century.2 More recently, through a draft article by legal scholar Maggie McKinley, I learned of the North American Petitions Project, a collaborative effort to digitize hundreds of thousands of petitions to government officials between the colonial era and the mid-twentieth century. McKinley uses this data to tell a story about petitioning Congress and how such activity helped give rise to the modern administrative state.3 By contrast, Carpenter—who is a co-principal investigator on the North American Petitions Project and has been at the forefront of digitization efforts—starts this particular chapter in the administrative realm. Drawing on original archival research, as well as on the work of historians Tiya Miles, Laurence Hauptman, and others, Carpenter reminds legal scholars that well before the formation of the Interstate Commerce Commission and other “modern” regulatory bodies, “thousands upon thousands of groups, organizations, and individuals petitioned administrative agencies both formally and informally.” (P. 350.) Carpenter then digs into a striking feature of this early body of petitions: “indigenous North Americans petitioned administrative agencies as much or more than any other population.” (P. 351.) Continue reading "The History of the Administrative Petition: Dispatches from the Lost World of Administrative Law"

A Note to Readers

Hurricane Irma is bearing down on Miami, and as a result there is a good chance that Jotwell’s University of Miami-based staff will lose power and thus internet access. We’ve queued up some posts for the coming week, but as our server move is only partially complete there is a chance that some sections may be unavailable for considerable periods of time. Please bear with us if that happens.

The Ends of Jurisprudence: A Guide to the Perplexed

David Plunkett and Scott Shapiro, Law, Morality, and Everything Else: General Jurisprudence as a Branch of Meta-Normative Inquiry, 127 Ethics (forthcoming, 2017), available at SSRN.

This article is a guide to the perplexed about general jurisprudence. Many people assume that general jurisprudence is either entirely devoted to answering the question, “What is the nature of law?” or at least centered on that question. That is, they think that general jurisprudence is devoted to, or centered on, a metaphysical question. The most famous recent debate about this metaphysical question is the Hart-Dworkin debate, which many legal theorists find frustrating, sterile, or deeply confused (at least in its presuppositions). As a consequence, there is a tendency among some to abandon this debate, turning to matters they regard as outside of general jurisprudence. Plunkett and Shapiro provide a more capacious understanding of the enterprise, according to which general jurisprudence, which concerns law in general, is not limited to, and may not be centered on, metaphysics. From their elegant, precise, clear and compelling account, it follows that those who think they should abandon general jurisprudence may not have reason to do so, and those who think they are abandoning general jurisprudence might not be doing so. For example, theorists who (a) think it is a universal truth about law that it has legislation and (b) give an account of the meaning of statutes are actually engaged in general jurisprudence.

Plunkett and Shapiro’s thesis is that general jurisprudence comprises investigation in a number of philosophical fields – metaphysics, of course, but also philosophy of mind, philosophy of language, and epistemology. These investigations are unified by a comprehensive explanatory project. That project is to show how, in the words of the authors, universal “legal thought, talk, and reality fit into [the wider] reality.” A theorist may enter this project at any point, may do only some of this work, but it remains true that this theorist is engaged in general jurisprudence. Continue reading "The Ends of Jurisprudence: A Guide to the Perplexed"

Copyright Law and the Utility of Style

Christopher Buccafusco & Jeanne C. Fromer, Fashion’s Function in Intellectual Property Law, 93 Notre Dame L. Rev. (forthcoming 2017), available at SSRN.

Copyright is meant to protect artistic and literary works (books, paintings, sculptures, poems, songs, etc.) against copying. Copyright is not, however, meant to protect useful things – that is the job of patent law. A lot of useful things, however, are also pretty (and the other way around). Think about attractive kitchen appliances, or apparel, or furniture, or dining utensils, or indeed just about any artifact of industrial design. A well-designed ladies’ dress can keep its wearer warm, but most consumers probably value it primarily for its style. Does copyright protect the design of the dress? Or does the dress’s utility rule it out of copyright?

Christopher Buccafusco of Cardozo Law and Jeanne Fromer of the NYU School of Law have written a fascinating take on this question, titled Fashion’s Function in Intellectual Property Law, forthcoming in the Notre Dame Law Review, and available here. I liked the Buccafusco/Fromer article a lot, so much so that I wish the Supreme Court had paid more attention to it in its decision in Star Athletica, L.L.C. v. Varsity Brands, Inc., a recent case in which the Court established a test for determining whether particular pictorial, graphic, or sculptural (“PGS”) elements of useful articles are “separable” from the article’s useful function, and thus copyrightable. Buccafusco and Fromer presented the article’s arguments to the Court in a terrific amicus brief, which you can find here. Continue reading "Copyright Law and the Utility of Style"

Buddhism, Law and Comparative Law: the (Rebecca) French Connection 

Rebecca R. French, What is Buddhist Law? Opening Ideas, 64 Buffalo L. Rev. 833 (2015), available at SSRN.

Professor Rebecca Redwood French’s What is Buddhist Law? Opening Ideas is a major contribution to the nascent field of Buddhist legal studies and has the potential to advance our thinking about comparative law. In this review, I will highlight the article’s significance to these two areas of study.

Professor French notes that although there is significant writing on the legal dimensions of the Christian, Jewish, Islamic and Hindu religious traditions, little has been written on “legal concepts in the Buddhist tradition.” (P. 834.) Perhaps most significantly for readers of this blog, she points out that although some Buddhism scholars have written on “the Buddhist Law Code … very few have written on it from a legal vantage point.” (P. 834, note 3.) As the author of several important works in the field (including, On Buddhism and Natural Law  8 J. Comp. L. 141 (2013-2014)), as co-editor (with Professor Mark A. Nathan) of the collection entitled Buddhism and Law: An Introduction (2014) and as editor of the journal Buddhism, Law and Society, Professor French has done much to fill this gap. Continue reading "Buddhism, Law and Comparative Law: the (Rebecca) French Connection "

A Must-Read on Health Care Nudges

Nudging Health: Health Law and Behavioral Economics (I. Glenn Cohen, Holly Fernandez Lynch & Christopher T. Robertson eds., 2016).

Nudging Health: Health Law and Behavioral Economics is essential reading for anyone interesting in moving the health reform ball forward. The insights are especially important amid United States lawmakers’ persistent emphasis on individual responsibility and market-based solutions for health care. In their edited volume, esteemed authors I. Glenn Cohen, Holly Fernandez Lynch, and Christopher T. Robertson draw together canonical threads of legal theory, applying them to timely, essential health law and policy topics. The forty-five essays included in Nudging Health explore various ways that behavioral science may be applied to nudge health law and policy in the direction of better health and better health care spending. The book builds on a deep and provocative foundation of earlier scholars, including Kenneth Arrow, Cass Sunstein, and Richard Thaler.

Anyone who has spent even a little time around health law and policy is well aware that neoclassical economic models fail to accurately depict modern health care. Viewed through that lens, health care is a highly imperfect market, as Kenneth Arrow’s timeless 1963 essay, Uncertainty and the Welfare Economics of Medical Care, describes. Arrow accurately depicts a market characterized by, among other features: the uncertain nature of demand for health care; imperfect information and information asymmetries between buyers (patients) and sellers (health care providers); distorted trust, or fiduciary, relationships between health care providers and patients; barriers to entry and other supply limits on medical care; and third-party payment (insurance) leading to moral hazard and pooling of unequal risks. Continue reading "A Must-Read on Health Care Nudges"