Monthly Archives: May 2018

Literary Play at the Inns of Court and Early Modern Legal Professionalization

The Inns of Court have long interested legal historians, particularly those who study the history of the legal profession. The fact that the Inns were sites of tremendous literary activity is not something that receives a lot of attention in the older legal histories of the Inns (e.g., those written by legal historians such as John Baker and Wilfred Prest). Scholars who do focus on the literary aspects of the Inns tend to be interested in those literary dimensions rather than the law, a tendency that Jessica Winston avoids by focusing squarely on legal professionalization and its link to literary activity. Winston’s book argues that the interconnections among literature, law, and politics at the Inns of Court are best explained by the increase in law-related positions in the growing administrative state in early modern England and the connection contemporaries made between literary skills and fitness for these jobs. Lawyers at Play elegantly traces the way that a group of individual men at the Inns in the 1550s and 1560s used the skills they learned at grammar school in poetry-writing and in translating plays and other works to recommend themselves for those new positions. Rather than focusing on the literary stars of the Inns from the 1590s and 1600s such as William Shakespeare, Winston shifts the focus to an earlier time period. These relatively unknown individuals, unknown at least to those who are not literary scholars of Renaissance England, set the stage, as it were.

When explaining why lawyers-in-training lived cheek by jowl with those pursuing drama and poetry, other scholars have tended to satisfy themselves with ideas about what London generally was like during the height of the Inns. So, for instance, Phillip Finkelpearl, author of an excellent book on the important playwright John Marston who lived at Middle Temple in the 1590s, focuses on the fact that a severe housing shortage in London led poets like John Donne and playwrights like Marston to live alongside those pursuing a legal education at the Inns.1 The lusty and lively environment of Elizabethan London, it is conjectured, led/misled many of those would-be lawyers into literary pastimes, for example, attending and participating in elaborate revels and masques—some written by Shakespeare. Continue reading "Literary Play at the Inns of Court and Early Modern Legal Professionalization"

The Turn to Pluralist Jurisprudence

Nicole Roughan and Andrew Halpin, In Pursuit of Pluralist Jurisprudence (2017).

Jurisprudence usually changes gradually and imperceptibly, with large-scale shifts recognizable only with the benefit of hindsight. Seldom does it occur that a single piece signals a dramatic turn in the field. A prime example of a transformation-signaling piece is Karl Llewellyn’s A Realistic Jurisprudence—the Next Stop,1 announcing the emergence of legal realism. Llewellyn’s article did not itself produce the transformation; rather, he identified a generational shift in jurisprudential thought that was already taking place, and he sought to bring attention to this shift and the themes around which it revolved. The article (and its follow-up, Some Realism About Realism: Responding to Dean Pound2) served to crystallize and give a label to what theretofore had been an inchoate development. Following this article, legal realism would be criticized, debated, and elaborated. A new school of jurisprudential thought thus was born.

In Pursuit of Pluralist Jurisprudence (2017), edited by Nicole Roughan and Andrew Halpin, might turn out to be another transformation-signaling piece in jurisprudence, though its impact will not be known until a generation has passed. There are several reasons to think it might achieve this stature.  For one, like Llewellyn’s piece, this book has a catchy descriptive title that dubs the nascent field “pluralist jurisprudence.” Furthermore, the volume contains ambitious original essays by established, as well as rising, jurisprudential figures from different parts of the world: Nicole Roughan and Andrew Halpin (Introduction and The Promises and Pursuits of Pluralist Jurisprudence), Roger Cotterrell (Do Lawyers Need a Theory of Legal Pluralism?), Maksymilian Del Mar (Legal Reasoning in Pluralist Jurisprudence), Cormac Mac Amhlaigh (Pluralising Constitutional Pluralism), Ralf Michaels (Law and Recognition—Toward a Relational Concept of Law), Sanne Takema (The Many Uses of Law), Joseph Raz (Why the State?), Detlef von Daniels (A Genealogical Perspective on Pluralist Jurisprudence), Stefan Sciaraffa (Two Conceptions of Pluralist Jurisprudence), Neil Walker (The Gap Between Global Law and Global Justice), Margaret Davies (Plural Pluralities of Law), Kirsten Anker (Postcolonial Jurisprudence and the Pluralist Turn), and Martin Krygier (Legal Pluralism and the Value of the Rule of Law). As their titles indicate, the essays cover a range of topics in relation to legal pluralism. Continue reading "The Turn to Pluralist Jurisprudence"

Does Copyright Have a Framing Problem?

Margot E. Kaminski & Guy A. Rub, Copyright’s Framing Problem, 64 UCLA L. Rev. 1102 (2017).

Numerous provisions of the Copyright Act of 1976 (“1976 Act”) use the term “work” as a key referent for determining copyrightability, ownership, scope of rights, limitations on scope, and remedies. Yet, Congress did not provide a general-purpose definition of what counts as a “work,” even though it defined a plethora of arguably much less important terms. When the parties in litigation explicitly or implicitly disagree about the fundamental issue of what the plaintiff’s or defendant’s work is, what is a court to do?

This is a big and important question. While Kaminski and Rub do not provide a full response, they do frame the problem and illustrate how it plays out in many contexts. They demonstrate that courts have considerable flexibility in how to define the relevant work. Sometimes, courts use this flexibility to “zoom in” on particular facets of, for example, a design on a carpet that mixes public domain and original elements. Other times they “zoom out” to consider a work’s total concept and feel. Courts rarely defend their framing of the relevant work, and when they do, they do not use a shared set of criteria to justify their choices. Continue reading "Does Copyright Have a Framing Problem?"

Medical Assistance in Dying Laws and the Therapeutic Relevance of Hope in the Mental Health Context

Thomas Blikshavn, Tonje Lossius Husum, and Morten Magelssen, Four Reasons Why Assisted Dying Should Not Be Offered for Depression,14 J. of Bioeth. Inq. 151-157 (2017).

Most jurisdictions that have legalized some form of Medical Assistance in Dying (MAD), the term now in vogue that includes Physician Assisted Suicide (PAS) and Euthanasia, have done so only for those who are terminally ill or more broadly, close to dying a natural death. In the few jurisdictions that provide broader access, including for mental illness, in particular Belgium and the Netherlands, the growth of the ‘psychiatric euthanasia’ practice in the last five years has faced particular controversy. Yet, some bioethicists and health law scholars argue that other jurisdictions, including in the US and Canada, should follow their example. They tend to build their argument around paradigm cases of patients with “treatment-resistant depression” (TRD), for which, so they argue, there is no hope of recovery. Not providing access to people with TRD, they put forward, is discriminatory and forces people to either suffer indefinitely or to commit suicide in horrible circumstances.

In Four Reasons Why Assisted Dying Should Not Be Offered for Depression, Thomas Blikshavn, Tonje Lossius Husum, and Morten Magelssen provide an exemplary interdisciplinary and sophisticated response. Although their paper focuses on TRD, many of their points are relevant for the broader mental health context. The paper stands out for its thoughtful reflection on the real-life clinical context in which this practice will play out. Inviting us to reflect on how policymaking needs to account for the complex nature of mental illness and the unique mental health care setting, the paper reveals the dangers of basing sweeping policy changes on well-constructed theoretical arguments that are disconnected from the complex clinical and social context in which they will operate. Continue reading "Medical Assistance in Dying Laws and the Therapeutic Relevance of Hope in the Mental Health Context"

Family Law’s Democratic Foundations

Sean Hannon Williams, Divorce All the Way Down: Local Voice and Family Law’s Democratic Deficit, 98 B.U. L. Rev. 579 (2018)

For decades, scholars have heaped scorn on family law’s open-ended legal standards like “equitable” distribution or the “best interests” of the child.1 The prevailing view is that such standards are indeterminate because they call on judges to weigh competing values in the absence of social consensus or to make impossible predictions.2 They therefore invite—in fact, require—judges to make decisions that resonate with their personal preferences or experiences.3 Laypeople appear to be in full agreement. Virtually every person I’ve known who has gone through a divorce has a story about the trial judge who “screwed” him or her by imposing values inconsistent with that person’s own.

But despite this virtually universal dissatisfaction, attempts to replace these standards with clearer rules or guidelines have largely failed. Scholars have offered convincing explanations for why this failure has been inevitable: people simply do not agree on the values that family law doctrines should reflect; state legislators shy away from controversial substantive positions on family law matters; and interest-group mobilization makes it easier to defeat, rather than to pass, proposed legislation. Continue reading "Family Law’s Democratic Foundations"

Illuminating Societal Stereotyping of Bisexuals and the Need for Strategies to Reduce Stigmatization

Despite the fact that bisexuals are, by most counts, the largest sexual minority group in the United States, they remain woefully under-researched and under-theorized. This invisibility in the realm of research and scholarship may be tied to the fact that bisexual programs and organizations receive only a minuscule amount of funding compared to either gay or lesbian organizations. As one study noted, over a forty-year period, bisexual programs and organizations received less than 0.3% of the funding awarded to their gay or lesbian counterparts. See Anthony Bowen, Forty Years of LGBTQ Philanthropy: 1970–2010 33 (2012). Furthermore, bisexuals face alarming physical and mental health disparities—including higher levels of mood and anxiety disorders and of suicidal ideation—compared to individuals of other sexual orientations, which may well be a consequence of the fact that bisexuality is stigmatized by both heterosexual and homosexual communities.

This background of invisibility and stigmatization helps illustrate the importance of Brian Dodge et al.’s Attitudes Toward Bisexual Men and Women Among a Nationally Representative Probability Sample of Adults in the United States, published in the journal PLoS ONE. The article—and the study on which it is based—fills an important gap in the existing research on bisexuality as to prevailing societal attitudes toward bisexuals and the persistence of common stereotypes of this group, despite the considerable advances in societal attitudes towards gays and lesbians. Continue reading "Illuminating Societal Stereotyping of Bisexuals and the Need for Strategies to Reduce Stigmatization"

Chevron as Remedy

Andrew F. Hessick, Remedial Chevron, 96 N.C. L. Rev __ (forthcoming 2018), available at SSRN.

What’s not to love about a remedies approach to solving an Administrative Law problem? Professor Andrew Hessick’s forthcoming article, Remedial Chevron, aims to do just that. Critics of Chevron deference assert its foundation is shaky. Still, Chevron deference underlies countless judicial decisions. Originalists and textualists challenge Chevron’s legality under the Constitution, the Administrative Procedures Act (APA), and nondelegation doctrine. Two sitting Supreme Court justices call for its demise. Professor Hessick views these threats as dangerous and seeks to save Chevron through reinterpretation. He pragmatically alters tack to overcome formalist objections by reformulating our existing conception of Chevron to a “Remedial Chevron”—a constraint on the court’s remedial authority. The article’s goal is to save Chevron from peril and retain useful purposes. Courts would not be bound to agency interpretation but instead conduct de novo review of the law. This de novo power would be limited to the authority to vacate an agency determination only if it were unreasonable.

The reason the challenges pose threats to the continued vitality of Chevron, according to Professor Hessick, is that the logical conclusion to the legal challenges is that Chevron cannot stand. Professor Hessick seeks to avoid this conclusion and proposes a reconceptualization in order to save Chevron. Underlying his argument is a commitment to retaining the functional advantages of Chevron within the administrative system and to maintaining certainty and stability of agency regulation and adjudications. Continue reading "Chevron as Remedy"

An Argument for the Coherence of Privacy Law

William McGeveran, Privacy and Data Protection Law (2016).

William McGeveran’s new casebook on Privacy and Data Protection Law announces the death of the “death march” that anyone who has ever taught or taken a course in Information Privacy Law has encountered. The death march is the slog in the second half of the semester through a series of similar-but-not-identical federal sectoral statutory regimes, each given just one day of instruction, such as the Privacy Act, FCRA, HIPAA, Gramm Leach Bliley, and FERPA. Professors asked to cover so much substantive law beyond their area of scholarly focus (nobody can focus on all of these) usually resort to choosing only two or three. Even then, the coverage tends to be cursory and unsatisfying.

The death march points to a larger problem: information privacy law doesn’t really exist. At best, privacy law is an assemblage of barely related bits and pieces. The typical privacy course covers constitutional law, a little European Union data protection, a tiny bit of tort, some state law, and the death march of federal statutes. The styles of legal practice covered run the gamut from criminal prosecution and defense, to civil litigation, regulatory practice, corporate governance, and beyond. To justify placing so much in one course, we try futilely to bind together these bits and pieces through broad themes such as harm, social norms, expectations of privacy, and technological change.

My long-held doubt about the coherence of privacy law has led me to teach the course a bit apologetically, feeling like a fraud for pretending to find connections where there are almost none. I’m pleased to report that my belief isn’t universally held: McGeveran’s compelling new casebook is built on the idea that privacy law can be rationalized into a coherent area of practice and pedagogy, one it presents in an organized and tightly woven structure. Continue reading "An Argument for the Coherence of Privacy Law"

Human Rights Litigation and the States

Seth Davis and Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018).

It has been almost forty years since the Second Circuit’s landmark decision in Filártiga v. Peña-Irala, which opened the door to human rights litigation in U.S. federal courts under the Alien Tort Statute (ATS). That statute—a creature of the first Judiciary Act in 1789—authorizes federal subject-matter jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” ATS litigation flourished in the decades following Filártiga, but more recently the Supreme Court has imposed new obstacles. In Sosa, the Court limited the scope of the federal common law cause of action that allows plaintiffs to assert violations of international law under the ATS. In Kiobel, the Court imported a presumption against extraterritoriality into ATS litigation, requiring that such claims “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.” And this Term, in Jesner v. Arab Bank, the Court immunized foreign corporations from liability under the ATS. (WNYC’s More Perfect released a terrific podcast on the ATS following the Jesner oral argument last October.)

If federal law and federal courts are less receptive to actions seeking remedies for human rights violations, what about the states? That is the crucial question that Seth Davis and Chris Whytock tackle in their excellent article. They persuasively argue that state courts and state law can play a role in this context, and that the Supreme Court’s restrictive decisions on questions of federal law do not automatically foreclose more sympathetic approaches at the state level. Continue reading "Human Rights Litigation and the States"

Talking Out of Both Sides of Your Mouth

James W. Coleman, How Cheap is Corporate Talk:? Comparing Companies’ Comments on Regulations with Their Securities Disclosures, 40 Harv. Envtl. L. Rev. 47 (2016), abridged in 47 ELR 16081 (August 2017).

It doesn’t take masses of data or high-powered statistics to generate important results. It takes a good question. James Coleman asks one and thoroughly massages it for insight.

Corporations exercise their speech in multiple audiences. Marketing addresses consumers. The Human Resources Department addresses employees. Coleman focuses on corporate speech to the SEC and the EPA about the proposed Renewable Fuel Standard between 2009 and 2013.

The number of corporations whose statements in the rule-making procedure and in their annual reports can be compared are small. In 2009, Professor Coleman studied 33 corporations and only 11 in 2013. The small number is not as significant as the lessons we learn when we compare what is said to these two audiences. Continue reading "Talking Out of Both Sides of Your Mouth"

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