Monthly Archives: December 2017

Jotwell Winter Break 2017

Jotwell will be taking a short Winter break. Jotting should resume on Monday, Jan 8, 2018.

As usual, we will be doing some technical work over the break, so it is possible that the site may be unavailable for occasional, and one hopes brief, random periods. But we’ll be back.

Happy Holidays! Thank you for reading, and for your support.

PS. Jotwell carries no advertising, so we would very much appreciate if you could make a small (or, dare we suggest, larger) holiday donation. Thanks! Continue reading "Jotwell Winter Break 2017"

Partisan Intent

Constitutional debates about gerrymandering often start from the premise that redistricting bodies may pursue overtly partisan goals. The Court’s fractured decision in Vieth v. Jubelirer offers support for this idea: Justice Scalia’s plurality opinion characterized “partisan districting” as a “lawful and common practice,” conceding only that an “excessive injection of politics is unlawful.” Justice Kennedy’s concurrence in the judgment similarly noted that “[a] determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied” and that any workable test for evaluating a partisan gerrymander must be capable of “measuring the particular burden a given partisan classification imposes on representational rights.”1 Even Justices Souter and Ginsburg, though rejecting the outcome in Vieth, were willing to concede that “some intent to gain political advantage is inescapable whenever political bodies devise a district plan” and that “the issue is one of how much is too much.” It is therefore not surprising that much of the post-Vieth commentary and case law has taken this point for granted: to the extent there might be a “judicially manageable standard” for adjudicating partisan gerrymandering claims, that standard must be capable of distinguishing between the merely partisan gerrymander (which the Constitution permits) and the excessively partisan gerrymander (which the Constitution condemns). Such a standard, in other words, must answer the question of “how much is too much.”

In their recent, respective articles, Professors Michael Kang and Justin Levitt resist this framing of the inquiry. Rather than attempt to ask “how much” partisanship is “too much” partisanship, each author would instead ask whether a particular type of partisanship has infected the redistricting process (K. 354; L. 2). Thus, as Levitt puts it, the law of partisan gerrymandering should make it clear that “public action undertaken in order to disfavor citizens because of their party affiliation is not merely a species of normal politics, but impermissible in any degree” (L. 37). And Kang similarly maintains that courts ought expressly to “identify partisan purpose as constitutionally illegitimate” (K. 373). Both authors thus propose inquiries that would treat the presence of forbidden partisan intent as an independently sufficient basis for invalidating a legislative redistricting scheme. Continue reading "Partisan Intent"

Doing Away With Battery Law

Stephen D. Sugarman, Restating the Tort of Battery (Sept. 19, 2017), UC Berkeley Public Law Research Paper, available at SSRN.

Steve Sugarman is one of contemporary tort law’s leading figures, and one feature of his career which stands out is that he is willing to challenge modern orthodoxy. As the title of his classic 1985 article, Doing Away With Tort Law suggests, Sugarman is willing to recommend sweeping changes to private law. In Restating the Tort of Battery, Sugarman offers a proposal almost as radical as his 1985 proposal to get rid of tort law. Although he doesn’t say he wants to get rid of battery, once he is finished “restating” it, it is hard to see what is left of it. In this essay, I will not engage directly with Sugarman’s proposal, but I will try to describe its motivation and determine its limits – which, I believe, are not as easy to find as Sugarman may believe.

Sugarman thinks that the Reporters for the Restatement of the Law, Third, Torts: Intentional Torts to Persons have done the best that could be done given the job they were asked to do. The Reporters were asked by the American Law Institute to restate the law of intentional torts, including battery. Sugarman believes that the project is based on a false assumption, which is that there is a separate branch of tort law called “battery”. This is, Sugarman thinks, no longer true, if it were ever true. The truth is, if we were to restate the case law as it exists in 2017, we would see that all of our battery law that deals with harmful batteries can really be explained as instances of the same legal principles that explain liability for physical harm due to negligence. Continue reading "Doing Away With Battery Law"

The Federal-Tribal Relationship: The View from the Executive Branch

Kevin K. Washburn, What the Future Holds: The Changing Landscape of Federal Indian Policy, 130 Harv. L. Rev. F. 200 (2017).

In 2016, many thousands of Native people and their supporters traveled from across the country to protest construction of the Dakota Access Pipeline in North Dakota. It was the greatest display of unified Indian activism since the standoffs at Alcatraz and Wounded Knee. While Dakota Access set dogs on the protesters and North Dakota almost enacted a statute that would immunize those injuring protesters from liability, the federal government had a role as well. Because the pipeline ran over a section of federally-owned land, the U.S. had to grant an easement to build it, and needed to consider the impact on the Standing Rock Sioux, including sacred sites, drinking water, and treaty rights, before doing so. In the waning days of the Obama Administration, the EPA determined that it had not sufficiently considered all factors, and decided to delay the permit. In the first few days of the Trump Administration, the EPA reversed, ruling that the pipeline could go forward. After the pipeline was built (and already had its first leaks), a federal district court held that the U.S. had not sufficiently considered treaty rights and environmental concerns. But the court refused to halt the pipeline while considering the remedy, so gas continues to flow, and small leaks continue to occur.

As at Standing Rock, the federal government has tremendous power over the things most important to Native people. Five decades into the self-determination era, tribes still depend on the federal government to approve, regulate, or fund what tribes do with their businesses, land, natural resources, sacred sites, and police and social welfare services. The administration of this federal role is in these matters is far from the common law doctrines that occupy most Indian law professors. Not so for Professor Kevin Washburn. Washburn recently returned to academia after several years as the Assistant Secretary of Indian Affairs, where he struggled first hand with the factors governing federal decision-making. What the Future Holds: The Changing Landscape of Federal Indian Policy benefits from this experience with an unusually nuanced and informed perspective on the federal administration of the federal-tribal relationship. Continue reading "The Federal-Tribal Relationship: The View from the Executive Branch"

The Return of Habits

Sylvie Delacroix, Law and Habits, 37 Oxford J. of Legal Stud. 660 (2017), available at SSRN.

The article begins by considering two theses from H.L.A Hart: thesis 1) a legal system can be based on official acceptance alone; thesis 2) such a system is particularly conducive to a society that is deplorably sheeplike. The author argues that (2) is correct but (1) is unhelpful or wrong. Hart spells out the sheeplike tendency when he speaks of ‘an unreflecting inherited or traditional attitude, or the mere wish to do as others do.’ The author wants to interrogate the idea of “acceptance”, and to switch the focus from social practices to the habits (patterns of repeated behaviour) that underpin the practices. Hart, it is said, sought to bridge the gap between habits as a social fact and law as social rules, by the concept of acceptance.

The author states that an “emphasis on the necessity to grow out of the habitual through critical reasoning translates a key assumption that structures all non-naturalist accounts of ethical agency: there is a fundamental discontinuity between the natural and the ethical.” She defends a type of moral naturalism that gives a central place to habit. For, quoting Hans Fink, “nature is never mere nature.” There follows an interesting account of the position of habits (or social facts) in the philosophy of thinkers such as Railton, McDowell and Leiter. In short, the account “highlight[s] the extent to which one’s understanding of habit reflects one’s meta-ethical understanding of agency.” For example, if one’s notion of autonomy requires “transcending one’s causal environment,” then habits “belong firmly to the province of sociology.” On the other hand, a naturalist interpretation of human agency will regard habits not only as conditioning but as enabling “normative choices.” Hart himself maintained an “agnostic meta-ethical position” in which he utilized habits only as a means of more clearly opposing them to rule-governed practices. Continue reading "The Return of Habits"

Citizens, Aliens, and the Architecture of Exclusion

Over the past few decades, historians have enriched our understanding of the concept and experience of citizenship in United States history. The historiography shares some common features. Narratives of citizenship and immigration tend to be progressive: that is, they demonstrate the ever-widening circle of inclusion of “others” over time (think, for example, of histories of married women’s property rights, the civil rights movement, or the immigration acts from 1924 to 1965). Despite this commonality, for the most part, histories of citizenship and immigration have really been histories of citizenship or immigration: even though these terms are usually uttered together as a phrase, the scholarship tends to be divided into those who study “second-class citizens” – that is, those who were born in the United States but excluded from various rights and obligations, including racial and ethnic minorities and women – and those who study the foreign-born.

Kunal Parker’s compelling book, Making Foreigners: Immigration and Citizenship Law in America, 1600-2000, upends the division that is commonplace in the study of citizenship “or” immigrants. He challenges what he perceives as a false dichotomy between foreigners and non-foreigners in the extant literature. His central claim is that histories of citizenship and immigration are tightly linked: that territorial insiders and territorial outsiders – that is, those born here and those not – have been subjected to similar processes of regulation, rejection, exclusion, and removal throughout American history. As he writes, at various points in our history, women, blacks, Native Americans, Asian Americans, and Latino Americans have all been “rendered foreign,” sharing more in common with territorial outsiders – or so-called “aliens” – than with those who were native-born. In other words, the experience of foreignness was not limited to those who were foreign-born. Parker is not the first to demonstrate the interconnectedness of territorial outsiders and insiders, but his book provides a comprehensive frame, making the most successful argument to date for this reconceptualization. Continue reading "Citizens, Aliens, and the Architecture of Exclusion"

A Compelling Case for a General Theory of Contracts

Robin Kar, Contract as Empowerment, 83 U. Chi. L. Rev. 759 (2016).

Contract in the common law lacks a unifying theory. In this article, Robin Kar offers an intriguing descriptive and normative theory of “contract as empowerment” to explain and harmonize the relationships of core contract doctrines such as consideration, the expectancy damage default rule, and fairness rules such as unconscionability. The result is a highly coherent, aesthetically pleasing, and jurisprudentially compelling account of contract that sets the stage for what promises to be an important scholarly project.

Typically, I read articles propounding new general theories of contract with a jaundiced eye. Contract law has long resisted a true general theory because the body of what Kar refers to as “true contract”—e.g., excluding other theories of obligation such as promissory estoppel and restitution—suffers from a schizophrenia that extolls private autonomy on the one hand while demanding deference to communitarian interests on the other. Many scholars have attempted to justify the institution of contract law on the basis of economics, the morality of promising, reliance, fairness, autonomy, consent, and a host of other contenders for the Sauronian theory that rules all contract doctrines. But each attempt fails to establish a general theory that harmonizes contract because contract doctrines appear to serve so many different and incompatible goals. Thus, theories of contract that work well for some aspects of contract crash in heaping wrecks upon the shoals of others that serve countervailing goals. Continue reading "A Compelling Case for a General Theory of Contracts"

Furthering Civic Engagement in the Environmental Arena

The Environmental Law Institute & the American Bar Association’s Civil Rights and Social Justice Section, Environmental Protection in the Trump Era (2017).

Since January 2017, the news headlines have been screaming about one administrative law issue after another—everything from the Congressional Review Act to regulatory rollbacks, from Executive Orders to agency enforcement priorities. These news headlines have quite understandably prompted a flood of questions about what the law does, and does not, allow the president and others within the Executive Branch to do. For example, can a president use an Executive Order to unilaterally revoke an agency rule that is already on the books? Or, at an even more basic level, what exactly is an Executive Order?

Notably, it is not just those in the legal profession who are asking these sorts of questions. Rather, the 2016 election made many members of the public hungry to learn more about how our government works and what constraints the law places on executive power. This is where Environmental Protection in the Trump Era, a new e-book published jointly by the Environmental Law Institute and the American Bar Association’s Civil Rights and Social Justice Section, comes into play. The book, which is free for any member of the public to download, aims to further the public’s “understanding of the legal mechanisms that the White House, federal agencies, and Congress are using to change the regulatory approach to environmental, natural resources, and health and safety protections.” Continue reading "Furthering Civic Engagement in the Environmental Arena"

When Does Healthcare Ethics Consultation Constitute the Practice of Law?

Anya E. R. Prince & Arlene M. Davis, Navigating Professional Norms in an Interprofessional Environment: The ‘Practice’ of Healthcare Ethics Committees, 15 Conn. Pub. Int. L.J. 115 (2016), available at SSRN.

Following the New Jersey Supreme Court’s endorsement of healthcare ethics committees (HCECs) in its 1976 decision, In the Matter of Karen Quinlan, HCECs have become ubiquitous features of health care institutions throughout the United States. In addition to developing policies and providing education about ethical issues in medicine, HCECs play a central role in resolving ethical conflicts related to the care of particular patients. While most HCECs do not purport to issue binding determinations, the manner in which they frame ethical issues and present options for consideration can have significant impacts on how disputes are resolved.

In a thoughtful and comprehensive article published in the Connecticut Public Interest Law Journal, Anya Prince and Arlene Davis consider “whether participation in ethics consultations could be considered the practice of law.” The consequences of characterizing ethics consultations as a type of legal practice are potentially significant. Non-attorney HCEC members, or attorney members who are not licensed in the HCEC’s jurisdiction, could be subject to civil or criminal penalties for the unauthorized practice of law. Even attorneys who are licensed in the HCEC’s jurisdiction might run into problems when serving as HCEC members, as they might find it difficult to comply with professional legal obligations “that may be at odds with the expectations and professional rules of the ethics committee itself.” Continue reading "When Does Healthcare Ethics Consultation Constitute the Practice of Law?"

A Prescription for Overcoming Gender Inequity in Complex Litigation: An Idea Whose Time Has Come

Brooke D. Coleman, A Legal Fempire?: Women in Complex Civil Litigation, 93 Ind. L.J. (forthcoming), available at SSRN.

If ever there was a right time to discuss gender inequity in the legal profession, it is now. With a daily deluge of examples of how women are objectified, degraded, and undervalued in the workplace, Brooke Coleman’s A Legal Fempire?: Women in Complex Civil Litigation comes at a perfect time. It is a welcome and timely exposé of how a slice of the legal profession—the Multi-District Litigation (MDL) world—illustrates the acute and ongoing systemic problem of gender inequity and the modest progress that has been made over time to address it. Coleman does an excellent job of shining a light on this serious contemporary issue without sugarcoating or whitewashing it, while simultaneously crediting the Gender Bias Task Force movement for its historical contributions and making proposals for going forward.

Coleman’s article was an easy pick as a work I loved reading and one I highly recommend to law teachers, law students, and the legal profession in general. Her work reaches into many corners—complex litigation, feminism, employment law, ethics, social science—and is accessible in its content and tenor. She navigates the topic of gender inequity in the legal profession with both sensitivity and unapologetic dissatisfaction with the current state of affairs. In sum, Coleman’s article should be required reading for 1Ls today, as a part of the prescription for attacking gender inequity in the legal profession. Continue reading "A Prescription for Overcoming Gender Inequity in Complex Litigation: An Idea Whose Time Has Come"