Yearly Archives: 2018

Are Breastfeeding Protections Anti-Feminist?

Meghan Boone, Lactation Law, ___ Calif. L. Rev. ___ (forthcoming 2018), available at SSRN.

If one reason that women have been held back in the workforce is difficulty reconciling caregiving responsibilities and work-related duties, then one obvious method of reform should be to require employers to accommodate caregiving, particularly those forms of caregiving that are disproportionately or exclusively fulfilled by women. For example, because a typical full-time work schedule is not conducive to a new mother’s schedule of breastfeeding or pumping breast milk, many women are forced to prioritize work over breastfeeding. In response, both state and federal laws require employers of a certain size to accommodate new mothers returning from maternity leave by providing them with breaks and a suitably private area in the workplace to pump breast milk, allowing them to return to work and continue to feed their babies breast milk. Surely a win for feminism and facilitating women’s employment choices, right?

In her forthcoming article Lactation Law, Meghan Boone answers no, at least as such statutes are currently written. From the opening paragraphs, she poses a startlingly counterintuitive example of a Maine teacher whose child was stillborn. In the following days, she began lactating, an understandably traumatic process for someone mourning a stillbirth. As she grieved, she learned of nonprofit organizations that collected donated breast milk and distributed it to babies who would otherwise not be fed breast milk and decided to participate. The school where she worked, however, refused to accommodate her pumping breast milk because the Maine statute that required employers to accommodate lactation only applied to mothers nursing or pumping milk for their own children. Because the teacher’s breast milk would be donated to other babies, the school was not required to accommodate her desire to pump breast milk while she was at work. Continue reading "Are Breastfeeding Protections Anti-Feminist?"

Does Belief Beyond a Reasonable Doubt Require Unanimity Among Jurors?

Youngjae Lee, Reasonable Doubt and Disagreement, 23 Legal Theory 203 (2017).

Although in most states and in the federal system, the law’s answer to the title question is “yes,” Youngjae Lee’s answer—with a qualification it will take the rest of this jot to explain—is “no.” To be more precise, his answer, surprisingly, is that it depends on the issue that is liable to disagreement. Making certain assumptions, Lee argues that unanimity is the best rule to adopt for juries reaching decisions about empirical facts in criminal cases. In these circumstances, requiring unanimity among jurors is both most faithful to the beyond-the-reasonable-doubt requirement for conviction and most faithful to the justification of this requirement. But juries must make decisions on all of the elements of crimes (and sometimes on affirmative defenses, I might add); to do this, often juries must make decisions on issues that are at least partly evaluative. (Lee calls them “moral issues.”) Some of his examples come from the core of criminal law: rape (reasonable belief in consent or a reasonable expectation that defendant recognize lack of consent) or homicide (depraved-heart murder, reckless homicide, self-defense). For these decisions, Lee argues, unanimity is not the rule to adopt.

He arrives at these conclusions by assuming a principle of rationality that has lately attracted attention from epistemologists: the “equal weight view.” That view says that if there is disagreement among persons with equal cognitive capabilities and equal access to information (“epistemic peers”), each belief is equally reasonable, and so, has equal weight. Each person should adjust his belief in the direction of those with whom he or she disagrees. In a simple case of 11-1 disagreement where eleven have the highest confidence about the defendant’s guilt, the equal weight view requires that they lower their confidence. Under some circumstances, lowering by the eleven results in an insufficient average level of confidence among all the jurors—insufficient to satisfy the requirement of being beyond a reasonable doubt—so a unanimous verdict of not guilty should be reached. If the sole dissenter is not very confident in his opinion for acquittal, the average belief in the probability of guilt may remain high enough to satisfy the standard of beyond a reasonable doubt and so, a unanimous verdict of guilty should be reached. But not if the level of confidence satisfying the beyond-a-reasonable-doubt standard is very stringent. Then any amount of dissent regarding conviction leads on the equal weight view to acquittal. Continue reading "Does Belief Beyond a Reasonable Doubt Require Unanimity Among Jurors?"

Power to the People(s): Referendums in Deeply Divided Societies

Referendums have been used to decide divisive constitutional questions in polities around the world.  In some cases, the relevant divisions run deeply along ethnic and religious fault-lines and the polities have long histories of conflict. Joanne McEvoy’s 2018 article, Letting ‘The People(s)’ Decide: Peace Referendums and Power-Sharing Settlements, makes a significant contribution to the emerging literature on “peace referendums.” In what follows, I will highlight this contribution and argue that her text merits close attention from comparative constitutional law scholars.

At the outset of the article, McEvoy identifies her aims and underlines the high stakes involved when referendums are held in societies riven by conflict. She writes:

This article assesses the use of the referendum to legitimate power-sharing democracy in deeply divided societies. If we lack a full understanding of the dynamics of referendum design in transitions to power-sharing, minority groups may find themselves in a polity they perceive to be both illegitimate and in favour of the majority.  Further intracommunal antagonism and the risk of recurring conflict could threaten a fragile political bargain reached by elites.  Exploring the value of referendums is therefore important for the stability and legitimacy of peace-building. (P. 865.)

McEvoy situates her text in the extensive literature on power-sharing arrangements. Continue reading "Power to the People(s): Referendums in Deeply Divided Societies"

Decoupling Intellectual Property’s Incentive and Allocation Functions

Daniel J. Hemel & Lisa Larrimore Ouellette, Innovation Policy Pluralism, 128 Yale L. J. __ (forthcoming 2018), available at SSRN.

It’s rare for two JOTWELL editors to choose the same article to review. When that happens, it’s surely a sign of an “instant classic.” So even if you’ve read Kevin Collins’s laudatory jot of Daniel J. Hemel and Lisa Larrimore Ouellette’s superb piece a few months ago, you should read this one, too. And, if you didn’t read that review, you should definitely read this one.

If double coverage weren’t enough, three years ago, my jot reviewed Hemel and Ouellette’s brilliant article, Beyond the Patents-Prizes Debate. Besides explaining the importance of considering the full panoply of tools to incentivize innovation—such as patents, prizes, grants, and tax credits—Hemel and Ouellette showed that these tools could be decoupled and refashioned to create effectively new, mutant-like rights with potentially superior effects than in their “pure” form.

In this follow-up article, Hemel and Ouellette insightfully discern the broad theoretical ramifications of their previous IP reconstructions. Because Kevin Collins’s jot lucidly summarizes the expanse of the article’s exposition, I focus on the article’s most salient insight—namely, that IP’s “incentive” function is separable from its “allocation” function. Specifically, the “incentive” function refers to the market-based financial reward provided to innovators for producing an innovation (and here I elide the distinction between R & D-based “inventions” and commercialized “innovations”). The “allocation” function concerns the payment of a proprietary price by consumers (and intermediaries) to access innovations covered by IP rights. Continue reading "Decoupling Intellectual Property’s Incentive and Allocation Functions"

Jotwell 2018 Summer Break

Jotwell is taking a short summer break. Posting will resume on Monday, September 3. However, even while we’re on break, we’ll be accepting submissions, editing them, and updating various technical parts of the site.  We’ll also be planning our fall fundraiser, so this is good time to ask you to please help support Jotwell; give enough and we may not have to have do the fundraiser at all.

Jotwell Flyer

Click for full-size printable version

If you like Jotwell, share — help us find more readers. Tell a friend about Jotwell. And if you are an academic reader, please consider recommending Jotwell to your students. We have the 2018 edition of our Jotwell Orientation Flyer for students that you can print out and post, or perhaps even hand out at Orientation. 

See you in two weeks, when we start the new academic year.

Should the Right to Aid in Dying Include a Right to Euthanasia?

As more and more states legalize physician aid in dying, it appears that the acceptability of aid in dying turns on three critical requirements—that the patients be competent to make medical decisions, that they be terminally ill, and that they self-administer the lethal dose of medication. From Oregon to Hawaii, every state that has legalized aid in dying has included these three criteria for eligibility. But a report from Canada on that country’s experience with aid in dying suggests that only two of the three requirements may be needed.

The three basic requirements help ensure that patients really are suffering from a serious illness that is incurable and irreversible. They also help ensure that the desire for aid in dying reflects a genuine expression of self-determination rather than the irrational choice of someone suffering from mental illness. Controversial cases of aid in dying have involved patients who were no longer able to express their wishes or who appeared to need psychiatric care. Continue reading "Should the Right to Aid in Dying Include a Right to Euthanasia?"

The GDPR’s Version of Algorithmic Accountability

Lilian Edwards and Michael Veale, Slave to the Algorithm? Why a ‘Right to an Explanation’ is Probably Not the Remedy You are Looking For, 16 Duke L. & Tech. Rev. 18 (2017), available at SSRN.

Scholarship on whether and how to regulate algorithmic decision-making has been proliferating. It addresses how to prevent, or at least mitigate, error, bias and discrimination, and unfairness in algorithmic decisions with significant impacts on individuals. In the United States, this conversation largely takes place in a policy vacuum. There is no federal agency for algorithms. There is no algorithmic due process—no notice and opportunity to be heard—not for government decisions, nor for private companies’. There are—as of yet—no required algorithmic impact assessments (though there are some transparency requirements for government use). All we have is a tentative piece of proposed legislation, the FUTURE of AI Act, that would—gasp!—establish a committee to write a report to the Secretary of Commerce.

Europe, however, is a different story. The General Data Protection Regulation (GDPR) went into direct effect on EU Member States on May 25, 2018. It contains a hotly debated provision, Article 22, that may impose a version of due process on algorithmic decisions that have significant effects on individuals. For those looking to understand how the GDPR impacts algorithms, I recommend Lilian Edwards’ and Michael Veale’s Slave to the Algorithm? Why a ‘Right to an Explanation’ is Probably Not the Remedy You are Looking For. Edwards and Veale have written the near-comprehensive guide to how EU data protection law might affect algorithmic quality and accountability, beyond individualized due process. For U.S. scholars writing in this area, this article is a must-read. Continue reading "The GDPR’s Version of Algorithmic Accountability"

Prison Labor Through the Lens of International Trade

Lan Cao, Made in America: Race, Trade, and Prison Labor, available at SSRN.

Twenty years ago this September, over 3500 activists gathered in my home town of Berkeley, California, for a conference entitled “Critical Resistance: Beyond the Prison Industrial Complex.” Their purpose was to reject outright the project of criminal justice reform and to call instead for the complete abolition of prisons, jails, and other human cages.

Central to the argument for prison abolition is the notion that we law teachers mislead our students when we teach our students that the purpose of prisons and jails is to effect retribution, rehabilitation, incapacitation, and deterrence. Abolitionists argue (as do many contemporary academics) that incarceration is terrible at preventing and punishing criminality. Rather, prison responds to deeper political and economic needs. From a political perspective, the carceral system serves the purpose of social control: it expresses racism and helps produce “race;” it helps manage “surplus” populations made economically marginal by globalization and automation of production; and it establishes a new template for governance in the wake of the perceived failures of the 1960s welfare state.

Abolitionists often argue that prison serves an economic function as well. For example, Critical Resistance member Angela Davis says of the 1980s mass incarceration boom,

[A]s the U.S. prison system expanded, so did corporate involvement in construction, provision of goods and services, and use of prison labor. Because of the extent to which prison building and operation began to attract vast amounts of capital – from the construction industry to food and health care provision – in a way that recalled the emergence of the military industrial complex, we began to refer to a “prison industrial complex.”

Many contemporary scholars have offered evidence and argument to support abolitionists’ political theory of the carceral state—Michelle Alexander, Loïc Wacquant, Jonathan Simon, Marie Gottschalk, and others come to mind. But the assertion that a vast “prison industrial complex” (hereafter PIC) profits from incarceration is much less well supported by the evidence. Prisons and jails look much more like zones of “dead capital,” in Ruth Wilson Gilmore’s phrase: prisoners languish rather than work, new facilities fail to produce promised community jobs, and private prisons remain a relatively small part of the carceral system (although attorney general Jeff Sessions has recently given them a thumbs-up to expand). In Made in America: Race, Trade, and Prison Labor, however, Lan Cao provides some intriguing support for the economic part of the abolitionist case. Continue reading "Prison Labor Through the Lens of International Trade"

Why Military Justice Doesn’t Get Enough Academic Attention

The military justice system receives embarrassingly little attention from the legal academy in general and from legal scholarship in particular. Part of that may be the Supreme Court’s fault; it has been 35 years since Congress gave the Court direct appellate jurisdiction over the Court of Appeals for the Armed Forces (“CAAF”), the Article I court that sits atop the court-martial system. In that time, the Court has taken ten cases from CAAF—almost all of which, including Ortiz from this Term (which I argued on behalf of the Petitioner), have involved structural questions about the jurisdiction of military courts, the appointments of military judges, or both. There are compelling reasons why the Justices can and should take more (and more substantive) cases from CAAF, but there are important limits on their power to do so. Under current law, CAAF has discretion to choose which cases it hears (it has mandatory jurisdiction only in capital cases and those referred to CAAF by service-branch Judge Advocates General), and the Supreme Court can grant certiorari only if CAAF itself reviewed a court-martial appeal. As a result, a direct constitutional challenge to a criminal conviction cannot get to the Supreme Court if it arises from a court martial that CAAF does not review—the only context in the entire federal system today in which that is true. And as I have argued elsewhere, it is not because these cases are unimportant. Instead, “there are plenty of cases that the Court can take from CAAF but doesn’t, and there are even more cases that it can’t take but otherwise should.”

But the dearth of Supreme Court attention to the military justice system hardly explains the dearth of scholarship about it. After all, the Court has decided exactly one case arising out of the Guantánamo military commissions since they were established in November 2001, which have produced exactly eight convictions, all or parts of five of which have not survived appeal. Yet the pages of law reviews and legal monographs are replete with detailed analyses of the various disputes arising from those proceedings. Instead, the best that can be said about the paucity of good military justice scholarship is that, for whatever reason, there is not the same interest among non-military lawyers in the myriad substantive, procedural, and evidentiary issues that arise in the court-martial system. This is true even though that system has (1) increasingly focused its work on offenses that look less and less like the classic military offenses subjected to military justice at the Founding and that therefore increasingly raise legal questions of general applicability; and (2) recently undergone some of the most important and sweeping reforms since the enactment of the Uniform Code of Military Justice (UCMJ) in 1950. Instead, almost all of the best military justice scholarship these days has come from military lawyers—such as Captain Brittany Warren’s 2012 Military Law Review article.

The latest example is a 2016 article by Rodrigo M. Caruço, a Captain and lawyer in the U.S. Air Force Judge Advocate General’s corps, which offers a quantitative and qualitative assessment of the role of CAAF within the military justice system. As Caruço documents, CAAF both is, and sees itself as, “the supreme court of the military judicial system,” which is why Congress created its predecessor as part of the UCMJ. But rather than act like a “court of last resort,” CAAF “acts as an intermediate error-correction court…far too often.” Even though CAAF only conducts plenary review of approximately 40 convictions per year, Caruço’s quantitative analysis suggests that somewhere between half and 90% of its decisions in such cases entail little more than modest error correction. And because of the aforementioned limits on the Supreme Court’s appellate jurisdiction, the net effect is to dramatically reduce the incidence of “law declaration” within and without the military justice system. Instead, the overwhelming majority of cases (and issues) within the military justice system get no further than the intermediate appeals courts—the service-branch courts of criminal appeals—which themselves dispense of most appeals summarily. Continue reading "Why Military Justice Doesn’t Get Enough Academic Attention"

The Human Side of Markets

Too often when discussing matters of markets and finance, policymakers and scholars lose focus of the basic fact that people are at the core of markets and finance. It is people who move markets. It is people who generate supply and demand. It is people who need financing—for homes, for investments, for education, for healthcare, and other life decisions. Behind the faceless reams and terabytes of data are people who make up the fuels and gears of the marketplace. Behind the powerful models and promising technology that frequently dominate the contemporary financial markets are people. Properly recognizing the fact that people are at the heart of markets and finance is one of the critical keys to better understanding and harnessing the power of markets and finance.

Two illuminating new books, one by a legal scholar and one by a financial economist, delve into different noteworthy aspects of the human side of markets. Professor Mehrsa Baradaran of the University of Georgia School of Law recently published The Color of Money: Black Banks and the Racial Wealth Gap, a book that examines the long-lasting effects of racism, markets, and regulation on Black communities in the United States; and Professor Andrew Lo of the Massachusetts Institute of Technology’s Sloan School of Management recently published Adaptive Markets: Financial Evolution at the Speed of Thought, a book that offers a new and more human-oriented framework for thinking about markets. Each book is distinct in their areas of focus and scope, but they both share a fundamentally human-centered perspective about the promising and perilous roles of people in market and financial decisions. Continue reading "The Human Side of Markets"