Yearly Archives: 2018
Nov 12, 2018 Ezra RosserProperty
The issue of who should own federal public lands is often an issue that raises the temperature of politics and protest, especially in the western United States. Greg Ablavsky’s recent article gives us a historical analysis that provides some important answers to these questions.
In 2014, the federal government attempted to halt illegal cattle grazing on lands controlled by the Bureau of Land Management (BLM). For two decades, Cliven Bundy, a Nevada rancher, used the land and refused to pay the BLM grazing fees. But federal enforcement was blocked by armed supporters and private militia members who agreed with Bundy that the federal public lands are unlawful infringements on the rights of states and ranchers.
Two years later, a militia group led by Ammon Bundy, Cliven Bundy’s son, seized federal buildings in the Malheur National Wildlife Refuge in Oregon. The occupation, fueled by antagonism to federal land management and control, lasted 41 days.
Federal public lands are especially significant in western states where the United States owns 47 percent of all land. The belief that public land properly belongs to either the states or to people living nearby is often grounded on assertions that federal ownership is somehow unconstitutional.
According to this theory, land within each state belongs to the state and there is no legal or historical basis for federal land holdings. Gregory Ablavsky’s wonderful legal history article, The Rise of Federal Title, buries such arguments. It also puts an exclamation mark on one of the most important lessons of property law: that governmental recognition of title is fundamental to property ownership. Continue reading "The Messy Core: Federal Supremacy and Property Recognition"
Nov 9, 2018 Wendy Anne BachLexPoverty Law
Amna Akbar’s latest article takes sharp aim at the collectively constrained imagination of current legal scholarship and liberal reform agendas focused on the criminal legal system. And rightly so. She demonstrates that, with notable exceptions, we are mired, and almost lost, in our collective belief that the problems of the criminal legal system are problems of bad actors, bad seeds, and badly-implemented laws. She shows us that so many of the solutions we cling to will do nothing to address the systemic violence so prevalent in poor communities of color. She warns that answers do not lie in “investing even-handedness to law or the police…restoring criminal justice to some imaginary constitutional or pre-raced status quo,…[or] increasing resources for community policing.” (P. 105.) Instead the goal is transformative: to “[shrink] the space of governance now reserved for policing, surveillance, and mass incarceration; and fundamentally [transform] the relationship among state, market and society.” (P. 104.)
Despite this searing and far-reaching indictment of a wide swath of scholarship and advocacy, Akbar forgoes calling for either shame or despair. There is no time for either. Instead, by centering the radical, positive, and, love-inspired visions of the Movement for Black Lives and foregrounding their vision of “a world in which Black and other communities of color can thrive” (P. 120), Akbar offers hope. Continue reading "Hope"
Nov 8, 2018 Carole SilverLegal Profession
Diversity, Hierarchy, and Fit in Legal Careers: Insights from Fifteen Years of Qualitative Interviews is a new article by Bryant Garth and Joyce Sterling about the challenges for diverse lawyers (here meaning women and non-whites) in navigating career paths that lead to satisfaction and success. This is a popular topic. Garth and Sterling’s article stands out because it speaks both to the broad scale difficulties reflected in frustratingly slow progress on an organizational level, and to the particular contexts that frame the experiences, opportunities, and choices of individual lawyers hoping to find fulfillment in their careers.
The article begins with a rich discussion of various theoretical approaches that scholars have used to explain the failure in the profession — and particularly with regard to the ranks of positions of power and influence in the largest and most elite law firms — to reflect the increasing diversity of law school graduating classes. Garth and Sterling begin by explaining the “capital assets theory,” which grounds their work: Continue reading "Diversity, Golf, and the Rules of the (Legal Career) Game"
Nov 7, 2018 Joanna GrisingerLegal History
In the The War Against Chinese Restaurants, Gabriel J. Chin and John Ormonde describe how state and local actors in the late nineteenth and early twentieth centuries used legal tools to try to drive Chinese restaurants out of business. Chin and Ormonde describe a wide array of legislative, regulatory, and prosecutorial activity targeting Chinese-owned restaurants—some of it successful, some not—and argue that these local (but often nationally coordinated) efforts demonstrate white Americans’ intertwined concerns about work, immigration, urbanization, gender, and ethnicity in this era. And these concerns, once moved to the national stage, motivated Congress in 1917 and 1924 to ban almost all immigration from Asia.
Why did Chinese restaurants come in for particular scrutiny? Restaurants were among the very few business opportunities available to Chinese workers in the United States in the late nineteenth century; white lawmakers and union officials relied on restrictive licensing laws and pervasive anti-Chinese prejudice to bar Chinese workers from most jobs. Small businesses like restaurants and laundries, however, offered a path to economic independence. The history of racially discriminatory regulation of laundries is familiar to readers of Yick Wo v. Hopkins; here Chin and Ormonde describe how restaurants were similarly targeted. Chinese restaurants succeeded by offering a popular product and paying their workers less than the market standard. White restaurant owners opposed such restaurants’ success; so too did white male workers and their unions, who resisted competition from underpaid workers and resented Chinese workers’ success even in this limited market segment. Calls for boycotts failed, so, as the authors note, “[s]ince there was no law reserving the food business to whites, the unions sought to create one.” (P. 698.) White men looked to the state to drive these restaurants out of business, demanding police raids, employment restrictions, licensing laws, and zoning rules. Continue reading "Restaurants and Regulation"
Nov 6, 2018 Jessica SilbeyIntellectual Property Law
Rebecca Curtin,
Zombie Cinderella and the Undead Public Domain,
86 Tenn. L. Rev. __ (forthcoming 2018), available at
SSRN.
Professor Curtin’s article, Zombie Cinderella and the Undead Public Domain, takes a recent case from the Trademark Trial and Appeal Board (TTAB) as the basis for an argument that trademark doctrine needs stronger protection against the exclusive commercial appropriation of characters that are in the public domain. In that case, a doll manufacturer sought to register the term “Zombie Cinderella” for a doll that was zombie-ish and princess-like. The examiner refused registration because the term “Zombie Cinderella” for this kind of doll was confusingly similar to the mark for Walt Disney’s Cinderella doll. Although the TTAB overturned the examiner’s “refusal to register” determination, it did so because it said Disney’s mark is a conceptually weak source indicator of “Disney” for dolls. This leaves open the possibility that Disney could build a stronger association between its mark and its dolls and eventually monopolize the term “Cinderella” as a mark for princess dolls. Professor Curtin’s article argues that leaving this opportunity open would be bad policy and should be precluded under a proper application of trademark law.
There are several aspects of this article that make it worth reading. First, it is a deep dive into a single case at the PTO, teaching readers about trademark registration and appeals from adverse rulings. The article reads as a compact case history from beginning to end. It appropriately balances the technical aspects of trademark practice with conceptual dimensions of trademark theory, such as aesthetic functionality (a doctrine that bars trademark protection for design and word elements that confer a non-reputationally-related advantage on the trademark holder). Second, drawing from her scholarly expertise in literary history, Professor Curtin provides rich and appropriately expansive details about Cinderella’s provenance as a character dating from 1558. The cultural history alone makes this article a joy to read, as Professor Curtin traces the Cinderella character forward to the 1899 Georges Melies’ film Cinderella and backward to a ninth century Chinese folk tale. This sets up the issue of what Disney can properly claim to own of the character’s name (as a trademark for its own princess doll toy) after the 1950 release of its film Cinderella. Continue reading "The Costs of Trademarking Dolls"
Nov 5, 2018 Marin K. LevyCourts Law
Richard Re,
Beyond the Marks
Rule,
132 Harv. L. Rev. __ (forthcoming 2019), available at
SSRN.
What is the nature of precedent? How is it made and how can it eventually be unmade? If anyone knows, it is Richard Re at UCLA School of Law. Re has been doing the academy and the judiciary a service in recent years by writing several articles and a scholarly amicus brief on the foundational question of how certain opinions come to bind others. Beyond the Marks Rule is his latest offering in this rich area, and it does not disappoint.
Beyond Marks begins with what one might call the “less-than-five problem.” Generally, the Supreme Court creates binding precedent when a majority of the Justices supports a single rule of decision. Under the “majority rule,” if five Justices sign on to Rule A and four Justices sign on to Rule B, Rule A becomes the holding of the Court and binds the lower courts thereafter. But occasionally the Supreme Court does not merely split but fractures, leaving us in a world of, say, 4-1-4 (in which five Justices agree on an outcome, but only four agree on a rule explaining the outcome and one relies on alternative reasoning). What to do in such a situation? One could imagine concluding that an opinion without a majority is an opinion without precedential effect. But at the moment we are bound to conclude otherwise, thanks to Marks v. United States. Continue reading "Construing Precedent"
Nov 2, 2018 Jaime KingHealth Law
William M. Sage,
Explaining America’s Spendthrift Health Care System: The Enduring Effects of Public Regulation on Private Competition,
Healthcare Finance (forthcoming 2019), available at
SSRN.
Do you ever wonder why our healthcare system costs double that of many other industrialized nations, yet the health of Americans is faltering? Why has our healthcare not progressed in terms of safety, efficiency, affordability, or equity in the last 20 years? In his forthcoming chapter in Healthcare Finance, Bill Sage argues that rather than the failings of partisan politics or corporate greed, our nation’s healthcare system struggles to provide quality care for a reasonable price in large part due to an inefficient legal infrastructure that hinders competition and distorts the collective investment in population health. Specifically, Sage critiques “the accumulation of laws, regulations, self-regulatory practices, and financial subsidies which locks US health care into inefficient, unfair patterns and practices.”
What follows in this impressively short, yet comprehensive, chapter is a description of how shifts in our understanding of the cost drivers in healthcare and the resultant healthcare reform efforts have created an inextricable web of laws and regulations that make healthcare so complicated and expensive. Beginning with the Affordable Care Act (ACA), Sage details the key provisions that sought to address the challenges facing health and healthcare in the US in 2010. He then points out that the ACA’s approach to national reform reflected a major shift in expert understanding of the US healthcare system in the past 20 years, and that the “dramatic implications of this new knowledge are not explicitly acknowledged in public policy debates.” The ACA’s policies transitioned the dominant health reform paradigm from one of a “three-legged stool” of tradeoffs between cost quality and access to the Triple Aim which sought policies that improved population health, improved the patient experience, and reduced costs simultaneously. This new paradigm captured the attention and focus of policymakers, telling them that eliminating “waste, fraud, and abuse” could improve healthcare quality and reduce costs. Under this paradigm, the fix could come from curbing overutilization, promoting efficiency, and expanding preventive care. Continue reading "How the Law Contributes to Our Ever-Rising Health Care Costs"
Nov 1, 2018 Brian BixFamily Law
Emily J. Stolzenberg,
The New Family Freedom, 59
B.C. L. Rev. 1983 (2018), available at
SSRN.
Emily Stolzenberg’s excellent article, The New Family Freedom, outlines the tension within American society in general, and American family law in particular, between protecting individual choice (autonomy), on one hand, and having private (rather than collective) responsibility for dependency, on the other.
Choice and privatized dependency can conflict: if individuals are responsible for others only when, and to the extent that, they so choose, many dependent persons will not be adequately cared for. As Stolzenberg points out, the conflict between the two principles may be strongest when considering parental obligation, cohabitation, and alimony.
In what the author describes as “strict liability for sex” (P. 2007), fathers have been held subject to child support duties even where conception arose from statutory rape or significant fraud. Even putting aside those extreme cases, the dependency principle would support imposing parental obligations arising from a sort of tort analysis in which men “assume of the risk” (P. 2008) for any children resulting from having sex. Choice – whether through voluntary intercourse, the decision to use IVF or surrogacy (Pp. 2013-14), or voluntary paternity affidavits (P. 2014) – is characterized and offered as the grounds for imposing parental obligations, not as a justification for opting out. It is, as Stolzenberg characterizes it (P. 2013), a “one-way ratchet.” In this area of family law, the imperative to support dependent children overrides in part the autonomy interests of adults. Continue reading "Need, Dependency, and Choice"
Oct 31, 2018 Sonia LawrenceEquality
In her summer 2018 article in Feminist Legal Studies, Silvana Tapia Tapia takes a close look at a fundamental concern for many contemporary feminists – the ways in which penal expansion under neoliberalism was a “feminist-sponsored” reform project, one which feminist movements took up while ignoring, neglecting or rejecting more redistributive efforts. Tapia Tapia’s exploration takes place in Ecuador, in 2012 – and Ecuador, part of Latin America’s “pink tide,” explicitly rejected neoliberalism in 2007. The Ecuadorian constitution of 2008 had “unprecedented constitutional provisions.” One of these, “Sumak Kawsay, the indigenous approach to community life, as a fundamental principle” could support alternatives to carcerality in Andean justice, among other “counter hegemonic” possibilities. In this “post-neoliberal” environment, Tapia Tapia asks, what is the relationship of feminist interventions in criminal law to feminist alignment with redistributive claims in law and politics?
Beginning with a discussion of current scholarship on “carceral feminism” and “governance feminism,” Tapia Tapia outlines the argument that penal expansion operates to shift resources away from redistribution, that it has become transnational via human rights based discourses, and that it is fundamentally punitive. She reads scholars like Elizabeth Bernstein, Janet Halley and Prabha Kotiswaran as positing a link between carceral feminism and a neoliberal form of feminism, but in reading the Ecuadorian ”post-neoliberal” context, she finds that “many feminists demanding criminalization are strongly committed to a redistributive agenda.” (P. 6.) Why and how, Tapia Tapia asks, do Ecuadorian feminists who are operating in a post-neoliberal context, and a context in which the constitutional framework embraces a plurality of sources of law (“Andean Constitutionalism”), continue to support criminalization? Continue reading "Planning for a Post Neoliberal Future"
Oct 30, 2018 Rosalind DixonInternational & Comparative Law
The last year has seen the publication of a range of impressive books on the decline of democracy worldwide. One of the absolute best among these is undoubtedly the new book by Aziz Huq and Tom Ginsburg, How to Save a Constitutional Democracy.
The book has four key strengths, some common to other books in this genre – but which few others can claim to have in as full a measure. Continue reading "How to Save Democracy?"
