Monthly Archives: April 2019
Donald L. Kochan, The [Takings] Keepings Clause: An Analysis of Framing Effects From Labeling Constitutional Rights,
45 Fla. St. U. L. Rev.
__ (forthcoming), available at SSRN
“What’s in a name?
That which we call a rose
By any other name would smell as sweet.”
These words might ring true for William Shakespeare’s tragic lovers, Romeo and Juliette, but not so much so for the takings clause in the Fifth Amendment of the United States Constitution. In his compelling new article, The [Takings] Keepings Clause: An Analysis of Framing Effects From Labeling Constitutional Rights, Professor Donald L. Kochan employs interdisciplinary research from the fields of linguistics, psychology, and business product advertising to remind his reader that the words we use to label (or frame) constitutional rights do, in fact, matter.
The majority of regulatory takings challenges are brought under either the categorical takings test articulated by the Supreme Court in Lucas v. South Carolina Coastal Councilor or the three-part balancing test the Court applied in Penn Central Transportation Co. v. New York City. Property owners hardly ever win takings claims under either of these regulatory takings frameworks. Continue reading "What’s in a Name? Apparently a Lot"
Law Clerks for Workplace Accountability, Public Comment
On The Judicial Conference of the United States’ Proposed Changes to the Code of Conduct for U.S. Judges and Judicial Conduct & Disability Rules.
In 2017, United States District Court Judge Lynn H. Hughes of the Southern District of Texas mused, “It was a lot simpler when you guys wore dark suits, white shirts and navy ties… We didn’t let girls do it in the old days.” The Assistant U.S. Attorney appearing before Judge Hughes that day, Tina Ansari, believed Hughes’ comments were aimed at her, something Hughes disputes. The Fifth Circuit reversed the judge’s merits decision in Ansari’s case. It also scolded the judge for his courtroom remarks, calling them “demeaning, inappropriate and beneath the dignity of a federal judge.”
Fast forward to 2019. Judge Hughes summarily dismissed Ansari from his court. She appeared in his court four days later. Again, without explanation, he dismissed her. His reason? Judge Hughes—still smarting from the Fifth Circuit’s comments—explained that “Ms. Ansari is not welcome here because her ability and integrity are inadequate.”
This story may sound like an unusual example of one female lawyer’s unfortunate experience with one federal judge. I and many other women are here to tell you it is not. Undoubtedly, plenty of members of the judiciary have positive and respectful relationships with the women with whom they work. At the same time, as with any profession, the federal judiciary is not immune to sexual harassment, gender discrimination, and complicity in an environment that creates fertile ground for those behaviors. Recently approved changes to the Code of Conduct for U.S. Judges and Disability Rules represent a recent effort to improve the judicial workplace for women. Important Public Comment from Law Clerks for Workplace Accountability (“LCWA”) represent the kind of tenacity necessary to ensure real change takes place. Continue reading "Accountability Requires Tenacity"
Every law student is told repeatedly to check that the cases they are relying on are still “good” law. They may even be told that not using a citator such as Shepard’s, KeyCite, or BCite could be malpractice and multiple ethics cases would support that claim. But how reliable are the results returned by these systems?
Paul Hellyer has published the surprising results of an important study investigating this question. Hellyer looked at 357 citing relationships that one or more of these three citators labeled as negative. “Out of these, all three citators agree that there was negative treatment only 53 times. This means that in 85% of these citing relationships, the three citators do not agree on whether there was negative treatment.” (P. 464.) Some of the differentiation between systems could be attributed to one system incorrectly marking a relationship as negative when it is not. This might be considered a less egregious mistake if one presumes that the researcher would review the flagged case and find no negative treatment, although it is a costly mistake in a field where time matters. However, Hellyer accounts for the false positive (or negative, in this case) problem and the results of his study are distressing. Continue reading "Is it a “Good” Case? Can You Rely on BCite, KeyCite, and Shepard’s to Tell You?"
An implicit, if not often explicit, premise of the cluster of work often identified as “law and development” is that there are distinct spheres of legal reform activities in countries deemed “developing” and in those that have reached the status of “developed.” Many critiques of these presumptions have raised concerns about cultural politics and empirical verification. And while most acknowledge that institutions matter, making use of this insight has generated more ideological heat than practical certainty. Especially in these darker days of democratic backsliding and growing authoritarianism, grappling with the tangled past of efforts to advise or orient national legal reform projects has left many with the question of “what now?”
Mariana Prado and Michael Trebilcock’s new monograph, Institutional Bypasses, takes on this challenge by articulating a more procedural, methodological answer to this question, “what now?,” in lieu of advancing a renewed host of substantive best practices. In line with their recent field-leading publications, Prado and Trebilcock use the concept of the institutional bypass to model the empirically-committed experimentalism they have come to champion by presenting legal reform as an iterative learning process squarely aimed at avoiding the pitfalls of past efforts. Continue reading "Bypassing Intransigent Legal Institutions"
In July 2018, the State Bar of California authorized the formation of a Task Force on Access Through Innovation of Legal Services. This Task Force has been asked to identify possible regulatory changes to enhance the delivery of, and access to, legal services. It will address three broad topics: 1) the definition of unauthorized practice of law; 2) lawyer marketing, advertising, partnership, and fee-splitting rules; and 3) non-lawyer ownership and investment. The first sentence of the Task Force Fact Sheet states that “Too many Californians needing legal services cannot afford an attorney or don’t have meaningful access.” The second sentence of the Fact Sheet cites a 2018 Legal Market Landscape Report that was commissioned by the State Bar of California and written by Professor Bill Henderson.
Professor Henderson’s 2018 Legal Market Landscape Report is a document that all lawyers should read. It is jam-packed with data, and it provides the grounding for California’s ongoing conversations regarding the proper scope of lawyer regulation. Moreover, much of the information in the Report is not California-specific and thus is of interest to anyone who is concerned about access to legal services and the proper scope of lawyer regulation. Continue reading "Back to the Future (Again) Regarding the Regulation of Legal Services"
The interface between law and neuroscience has been a continuing source of interest for lawyers and philosophers. Many scholars have hailed developments in neuroscience as singularly transformative for our understanding of human agency. Further—it is argued—once we understand human agency from the neuronal point of view, we will be forced to alter the ways in which our practices of responsibility—especially law—regulate human conduct.
In the view of some scholars, claims for the transformative impact of neuroscientific developments on law are overblown. Taken to an extreme, those who trumpet the transformative effects of neuroscience on law have sometimes been found to suffer from the malady Stephen Morse labels “Brain Overclaim Syndrome.” Labelling the syndrome a “cognitive pathology,” Morse argues that claims made by those in the grip of the pathology make claims that cannot be conceptually or empirically sustained.
The authors of this provocative and interesting book make strong claims for the importance of neuroscience for our practices of responsibility. Their strongest conceptual claim is one they make often. In fact, the claim is the central thesis of their book. When it comes to responsibility assessment, the authors argue that the brain itself—specifically its executive functions—are “the seat of human responsibility.” (P. viii.) Continue reading "The Neuroscience of Responsibility"
Abhishek Nagaraj & Imke Reimers, Digitization and the Demand for Physical Works: Evidence from the Google Books Project
(2019), available at SSRN
From 2004 until 2009, the Google Books Project (GBP) digitized thousands of books from the collection of Harvard University’s library and made them available online. According to Google and proponents of the GBP, digitization would introduce readers to books that they otherwise couldn’t find or obtain, increasing access to and interest in the digitized works. But according to some authors and publishers, the creation of free digital copies would usurp the demand for print copies, undermining an important industry. This dispute was at the heart of a decade of litigation over GBP’s legality. After all of that, who was right?
According to a recent empirical study by economists Abhishek Nagaraj and Imke Reimers, the answer is: both of them. The paper, Digitization and the Demand for Physical Works: Evidence from the Google Books Project, combines data from several sources to reveal some key features about the effects of digitization on dead-tree versions of books. The story they tell suggests that neither of the simple narratives is entirely correct. Continue reading "Discovery, Cannibalization, or Both: How Digitization Affects Demand for Physical Copies"
Leora Eisenstadt, Data Analytics and the Erosion of the Work/Non-Work Divide
, __ Am. Bus. L.J.
__ (forthcoming 2019), available at SSRN.
Much has been written in recent years about how technology that is designed to make us all better connected has blurred the line between work and non-work time. For example, in an age in which many non-exempt workers check work email after work hours, on vacation, or on sick leave, defense lawyers have warned their clients about the potential for claims for overtime pay pursuant to the Fair Labor Standards Act (FLSA). Likewise, much has been written about the erosion of employee privacy in an age in which employers increasingly have the ability to use new technology to monitor their employees’ activities.
Professor Leora Eisenstadt’s forthcoming article, Data Analytics and the Erosion of the Work/Non-Work Divide, discusses these same issues, but with a focus on how the ability of employers to collect employees’ off-duty data impacts the erosion of the work/non-work divide. The article examines employers’ “non-transparent use of data analytics to monitor employee behavior, thoughts, and emotions when they are not working and [their ability] to use this data to make decisions about their workplace success” (P. 18). Continue reading "Erosions of the Work/Non-Work Divide"
Discussions of limits on women’s reproductive choice these days most often focus on legislative efforts to curtail that choice by narrowly limiting abortion access. Sofia Yakren’s new article reminds us that medical malfeasance in failing to provide accurate information about the fetus may also limit a woman’s choice regarding her pregnancy. Yakren’s article considers how tort law’s existing remedy for that malfeasance—the “wrongful birth” cause of action—is anti-therapeutic, harming the woman who seeks redress (and potentially her child) and stigmatizing people with disabilities. Drawing on legal scholarship, disability studies, feminist theory, psychological research, and journalistic accounts, the article is an important read for those interested in bioethics, torts, and feminist or disability studies.
Reproductive torts are sometimes characterized as embodying an inevitable tension between the interests of a disabled child (and disability advocates more broadly) and the interests of a woman (and feminists more broadly), but Yakren resists that smooth path. Her article criticizes how existing wrongful birth jurisprudence requires a mother to claim in court that, had she received accurate information from her doctor prenatally, she would have terminated her pregnancy. According to Yakren, this requirement leads to mothers being blamed and shamed—by courts and the media—for cold-heartedly rejecting their disabled children and being criticized—by disability advocates—for stigmatizing disabled lives as harmful. Yakren’s goal is to “shift blame from mothers to the legal system.” (P. 583.) In other words, the problem is not that mothers are cold-hearted, it is that the legal system forces them to act that way to recover resources needed for child rearing. To accomplish this goal, she offers a nuanced and contextual consideration of the emotional and financial experiences of plaintiff-mothers. Continue reading "Righting Wrongful Birth"
Camille Gear Rich, Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child
, __ Minnesota L. Rev.
__ (forthcoming, 2019), available at SSRN
“But not yet have we solved the incantation of this whiteness, and learned why it appeals with such power to the soul; and more strange and far more portentous—why, as we have seen, it is at once the most meaning symbol of spiritual things, nay, the very veil of the Christian’s Deity; and yet should be as it is, the intensifying agent in things the most appalling to mankind.” —Herman Melville
Consider this breezy narrative published a few years ago in the New York Times: “I chose my son by clicking and unclicking a series of boxes, not unlike online dating. Some days, I’d scroll through all of the redheads. Other days, all of the Jude Law look-alikes….There was no easy way for me to choose from so many flawless (but relatively indistinguishable) men, particularly when this choice would have such a profound impact on both my life and my child’s. [¶] One of them looked like Tom Brady and had a Ph.D. I added him to my cart.” Stories like this are increasingly commonplace and seemingly innocuous. That is, until something goes wrong. For Jennifer Cramblett, that moment came when, already pregnant, she decided to order more sperm from a sperm bank so that, down the road, she and her partner could give their baby a biologically related sibling. While on the phone placing her order, she encountered a mixup regarding the donor’s identification number: did Cramblett really mean donor number 380, not 330, the receptionist asked? Did Cramblett request an African American donor? Cramblett replied, “‘No, why would I do that? My partner and I are Caucasian.’” As it dawned on her that she was likely pregnant with a mixed-race child, Cramblett’s “excitement and anticipation of her pregnancy was replaced with anger, disappointment and fear.” Cramblett ultimately sued the sperm bank alleging harms stemming from the sperm bank’s racial mistake.
Cramblett’s personal misfortune reveals an unremarked trait shared by the pool of “flawless,” “relatively indistinguishable,” Jude-Law- and Tom-Brady-like sperm donors in the New York Times story: their whiteness. Some people may see nothing wrong with the practice of selecting sperm or eggs because of the perceived race of the donor. Others may be troubled by the prospect of racially motivated gamete selection but view it as an unfortunate side effect of respecting individual autonomy. In her thoughtful and provocative new article, Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child, Professor Camille Gear Rich challenges these views. She uses Cramblett’s lawsuit against the sperm bank as a jumping-off point to show how the Assisted Reproductive Technology (“ART”) market packages race and produces the discriminatory preferences that ultimately lead to racial subordination. By detailing the market framework for the exercise of supposedly private preferences, Rich calls attention to the ways in which the law can subsidize or alternatively dismantle private discrimination. Continue reading "Purchasing Race; or, The Pursuit of White Sperm and Eggs"