Monthly Archives: June 2019

Cow Protection in India is Not About Cows, Not About Protection

Scholars of comparative constitutional law and animal law alike have recently recognized what has been called comparative constitutional animal protection. One country with a strong constitutional commitment is India, as exemplified by Art. 51A (“It shall be the duty of every citizen of India—(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures …”) and Art. 48 (“The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”).

And yet, paradoxically, this is not all good news for the animals. And not all good news for India’s human citizens, either. The politics of cow protection in India, and in particular the prohibition on the slaughter of cows that exists in most of the Indian states, are complex, and anyone seeking to understand the place of cows in Indian society will not find any easy answers. And yet for years, I have been looking, unsuccessfully, for a publication that examines the cow slaughter ban from all angles and brings out the many complexities that I knew must be lurking under the surface of the constitutional language. That is, looking unsuccessfully until now. Yamini Narayanan’s article, Cow Protection as ‘Casteised Speciesism’: Sacralisation, Commercialisation and Politicisation, does everything that I had hoped I might find and much more—it is brilliant, beautifully written, and essential reading for anyone interested in animal law, animal rights, the regulation of milk, India’s caste system, cow protection, the Hindu religion, and speciesism generally—well as comparative analyses of all of these areas. Continue reading "Cow Protection in India is Not About Cows, Not About Protection"

A Case for Legal History

Laura F. Edwards, Sarah Allingham’s Sheet and Other Lessons from Legal History, 38 J. of the Early Republic 121 (2018).

Making a case for the value of legal history on a forum dedicated to the study and celebration of the field might seem unnecessary, but Laura Edwards’s historiographical essay in the Spring 2018 Journal of the Early Republic (JER) is too good not to bring to the attention of legal scholars.

Edwards not only makes the case for the importance of the study of legal history as more than a subfield within larger explorations of the era of the early republic, but also illuminates (or, for legal historians reading the piece, reinforces) just how complicated “the law” was and the role it played in people’s everyday lives. “Law was not the authority to which people deferred,” she insists. “It was the authority they made. As such, it is impossible to understand the early republic without it.” (P. 147.) While these contentions might seem obvious to historians of the law, there is much to gain for specialists and non-specialists alike by reading—and teaching—Edwards’s notable article. Continue reading "A Case for Legal History"

The Semantics and Pragmatics of Legal Statements

Stephen Finlay & David Plunkett, Quasi-Expressivism about Statements of Law: A Hartian Theory, in 3 Oxford Studies in Philosophy of Law 49 (John Gardner, Leslie Green & Brian Leiter eds., 2018).

When people talk about the law what, if anything, are they talking about? What do their sentences mean? Much of the philosophy of law has revolved around this question. In this essay, Finlay and Plunkett offer a novel answer—and a plausible reading of the answer proposed by the foremost Anglophone philosopher of law, H.L.A. Hart.

In The Concept of Law, Hart draws a distinction between external and internal legal statements. External legal statements describe people’s beliefs, attitudes, and behavior concerning legal standards. An example is “In England, they accept as law what the Queen in Parliament commands.” Internal legal statements (ILSs), by contrast, apply legal standards and usually put their conclusions using normative language.1 An example is “You (legally) ought not drive over 55 m.p.h.”. Continue reading "The Semantics and Pragmatics of Legal Statements"

Little Clicks, Big Consequences

Brett Frischmann & Evan Selinger, Re-Engineering Humanity (2018).

The unique qualities of digital contracts—weightless, easily duplicable—have made them ubiquitous and much longer than their paper counterparts. Consequently, they are everywhere and accordingly, nobody reads them. Yet, courts have consistently argued that digital or “wrap” contracts (shrinkwrap, clickwrap, browsewrap, etc.) are just like paper contracts and that the same doctrinal rules should apply.1 Sure, tech giants like Facebook and Google use wrap contracts to vacuum our data under the guise of consent, and companies have used them to impose onerous one-sided clauses, but isn’t that just the same old “lack of consumer bargaining power in a capitalist society” problem that we’ve always had dressed up in digital form? It’s not like digital contracts will lead to the end of civilization as we know it—or will they? In Chapter 6 of their fascinating, original book, Re-Engineering Humanity, Brett Frischmannn and Evan Selinger argue that ubiquitous, digital contracts may have profound negative consequences for humanity.

It may seem an odd choice to select a non-contract specific book for a contracts section JOT, and even more so to focus specifically on a particular chapter in that book. Even though Re-Engineering Humanity is about more than contracts, it is also and importantly about contracts. Frischmann and Selinger argue that contracts are doing something much more sinister than implementing one-sided bargains and deleting our rights with a click. They argue that contracts are actually erasing our humanity and turning us into simple machines. Continue reading "Little Clicks, Big Consequences"

The Costs of Market Allegiance in Health Care

Allison K. Hoffman, Health Care’s Market Bureaucracy, 66 UCLA Law Rev. __ (forthcoming, 2019), available at SSRN.

Nearly all politically viable solutions for the health system’s ills over the last four decades have been market-based solutions aimed at harnessing the competitive pressures of the market to produce better outcomes at lower cost while preserving individual choice. In Health Care’s Market Bureaucracy, Professor Allison Hoffman reviews the empirical evidence of the effectiveness of such policies in three primary areas – the market for health insurance, the market for medical care from the patient/demand-side, and the market for medical care from the provider/supply-side. She then systematically breaks down both the costs of insisting on a market-based approach to health care and the illusory nature of individual choice within such approaches.

There are, of course, many health law and policy scholars who believe a market-based health system is not a normatively desirable approach to health care. But what makes this article so powerful is that it takes on market-based theorists on their own terms, analyzing the evidence of whether and to what extent the market has delivered desired results. The article is valuable, in part, simply because it takes a holistic view of market-based health policy. But more specifically, it makes three important contributions to the literature. First, it brings attention to the enormous costs associated with a commitment to maintaining health care markets, both in terms of financial costs and policy bandwidth. Second, it provides a clear-eyed examination of what individual choice can and cannot accomplish in a market-based health system. And finally, it acknowledges that relying on market-based solutions allows all of us to avoid the hard choices we know must be made in allocating scarce health care resources. Continue reading "The Costs of Market Allegiance in Health Care"

Shifting the Paradigm: Power, Rights and Equality in Constitutional Law

Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787 (2019).

Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.

Reading Blackhawk’s article is itself a potent reminder of just how little of the legal history of Native Americans’ relationship to the U.S. government is taught in conventional constitutional law classes. Although the cases and practices she describes in many instances have deeply informed our modern constitutional understandings—of the treaty power, the war power, the plenary power doctrine, and others—most will be unfamiliar to those outside of the federal Indian law field. Unlike Dred Scott, Plessy, Brown, and others, no similar canon or anti-canon of federal Indian law cases forms a common vocabulary for our understanding of the Constitution’s basic principles.

As Blackhawk’s article makes clear, our neglect of the federal Indian law paradigm is not only a matter of erasing from public memory our nation’s brutal history of colonialism and the subordination of Native peoples (though it is that too). Rather, as Blackhawk puts it, “Scholars, practitioners, and courts draw…on paradigm cases and model examples in the stories we tell about the Constitution and how constitutional law works. It is through these stories that we convey and discuss questions of constitutional theory and that we build our constitutional canon and anti-canon.” (P. 1804.) Continue reading "Shifting the Paradigm: Power, Rights and Equality in Constitutional Law"

The Space In Between

Naomi R. Cahn, Revisiting Revocation upon Divorce?, 103 Iowa L. Rev. 1880 (2018).

Professor Naomi Cahn undersells her recent Iowa Law Review article, Revisiting Revocation upon Divorce? (Revisiting Revocation), when she concludes it by saying that “this Article contributes to the ongoing conversations about the relationship between decedents’ intent, formality, and function in trusts and estates law.” (P. 1949.) While Revisiting Revocation surely makes the contribution that Cahn describes, it also does considerably more. In revisiting the increasingly common and expanding state rule that divorce revokes any transfers of probate (and sometimes non-probate) (P. 1887)) assets to a former spouse as well as to a former spouse’s family members, (P. 1886) Cahn contributes to the growing literature on the legal “spaces in between” two binaries in the areas of intimate and family life. Other scholars, including Cahn, have investigated the legal spaces in between (or outside of) the perceived extremes of marriage and non-marriage1 and of male and female.2 Here, Cahn devotes her attention instead to the legal space in between the perceived extremes of marriage and divorce. In so doing, Cahn sheds light on one of the lesser-known—but tremendously important—ways in which the law treats marriage as a relationship that differs in kind from other species of relationships and as an event that differs in kind from other life events.

The main subject of Revisiting Revocation is the rule that “a final divorce settlement or annulment of a marriage revokes all provisions in the will in favor of the former spouse.” (P. 1886.) Adopted “in almost all U.S. states,”((P. 1886) the revocation upon divorce rule has expanded over time, applying in some states today to probate as well as to nonprobate transfers and covering even “the ex-spouse’s family members.” (P. 1887.) The rule assumes that while I might like my sister-in-law enough to include her in my will while I am married to her sister, my testamentary benevolence vanishes upon divorce, which apparently severs all property ties between certain individuals that arise through marriage. (An interesting counter-example in this regard is incest law, which in some states continues to apply to affinity-based relationships even when the very reason for the incest prohibition—marriage—goes away through either divorce or death).3 While technically a rebuttable presumption, Cahn shows that the revocation upon divorce rule is “rarely rebutted” (P. 1891) in most states and “appears virtually irrebutable” (P. 1889) in some. She tells the story of Jesse and Virginia Lee Suiters, who were married for forty-one years (and separated pursuant to a separation agreement for the last ten of those years). (Pp. 1889-90.) Jesse Suiters died shortly after the couple divorced, and his will, which was drafted while Jesse and Virginia Lee were separated (and had been for seven years), devised his residuary estate to “Virginia Lee Suiters.”(P. 1889.) Nevertheless, because of the state’s revocation rule, a Maryland court declared that Virginia Lee was not an eligible beneficiary of Jesse’s residuary estate. (P. 1889.) Cahn tells similar stories where courts have applied their state revocation upon divorce rules in ways that “rendered the decedent’s intent irrelevant.” (P. 1890.) Continue reading "The Space In Between"

Equality at Breakfast: Confronting the Patriarchal Whiteness of “Dairy Pride”

Iselin Gambert and Tobias Linné, Got Mylk?: The Disruptive Possibilities of Plant Milk, 84 Brook. L. Rev. __ (forthcoming 2019), available on SSRN.

It’s time to consider whether the milk on our cereal or granola, or in our coffee or tea, is an agent of inequality. Gambert and Linné in their compelling article, Got Mylk?: The disruptive possibilities of plant milk, confront “Dairy Pride” and argue that it operates as a tool of oppression along several axes. They use multiple lenses of equality including capitalism, speciesism, sexism, and racism to analyze milk as reality and symbol.

Perhaps the most obvious equality lens they discuss is the capitalist one of big business and consumers. The so-called “Milk Wars” arise from a Food and Drug Administration (FDA) regulation that defines milk only as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” (P. 5.) This excludes all forms of plant milk that have been in use for centuries such as soymilk, coconut milk, and various forms of nut milk, as well as goat and sheep milk. The increasing popularity of plant-based milk has led to FDA warning letters and some lawsuits seeking to stop plant-based milk from using the term “milk.” The proposed DAIRY PRIDE Act (“Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese to Promote Regular Intake of Dairy Everyday” Act), broadens the definition of milk as derived from “hooved mammals,” but would mandate more severe restrictions on the use of the word “milk” in plant-based contexts. (P. 20.) Meanwhile, as Gambert and Linné explain, in Europe litigation over “post-milk” oat beverages such as the Swedish dairy industry suing the “Oatly” company, have perhaps made oat drinks more popular. The comparative United States and European discussions are a marked strength of the article. (P. 40.) Continue reading "Equality at Breakfast: Confronting the Patriarchal Whiteness of “Dairy Pride”"

The Next Steps in Criminal Justice Reform

A number of books and articles have taken aim at America’s mass incarceration debacle. Smart Decarceration, a multi-author edited volume, assumes that the tide has turned. As the editors point out in the first chapter, several states have begun depopulating their prisons, eliminating mandatory minima, and creating more alternatives to prison, a movement sometimes dubbed “Smart Sentencing.” Smart Decarceration is about the sequel. Authored by academics with degrees in criminology, sociology, history, public health and social work, as well as by leaders in community organization, practicing lawyers, pastors, and formerly incarcerated individuals, this book is devoted to picturing what optimal decarceration should look like.

The diverse perspectives provided in Smart Decarceration ensure a nuanced, multi-disciplinary treatment of that issue. But there is also an overriding agenda, perhaps best summarized by Kathryn Bocanegra in her chapter, when she states that “exclusively focusing on reducing prison populations without considering the sustainability of such an effort is potentially dangerous.” (P. 115.) Continue reading "The Next Steps in Criminal Justice Reform"

Vice-Presidents in Charge of Going to Jail

Stavros Gadinis and Amelia Miazad, The Hidden Power of Compliance (Feb. 14, 2018), available at SSRN.

In business and government, today, bureaucrat is a pejorative. Bureaucracy rather than being a mark of rationality is sneered at. Multi-disciplinary project teams, flat hierarchies and “intrapreneurship” are what corporate consultants prescribe. At least since Thatcher and Reagan, market mechanisms have been praised as superior to the civil service.

Yet, corporate legal regulation can only think in bureaucratic forms. In Europe, the GDPR requires a new C-suite member, the Chief Data Officer. In the U.S., executive, legislative and judicial actions, well described in this article, have resulted in “the explosive growth of compliance departments.” (P. 7.) In legal regulation, authority is vested at the top and liability at the top is thought to ensure compliance. As scandals occur because those at the top failed to confront problems, the law envisions new staffs being created so that the top of the bureaucracy can issue orders resolving the problems. Previous work has been skeptical of whether the development of compliance departments will lead to actual compliance. Gadinis and Miazad report on various law review articles in which “the harshest critics view compliance as a box-checking exercise, too formalistic.” (P. 2.) Others complain that those in the department won’t be able to “supervise their superiors.” (P. 2.) In other words, they will be inferior bureaucrats. Without being explicit about it, often using agency-cost theory, these law review articles apply the critique of bureaucracy so prevalent in our culture to criticize the organizational technique of compliance departments.

Gadinis and Miazad cut through these critiques and argue that the principal function of compliance departments is to put red flags in front of the board. One might quibble with this approach by emphasizing the educational function of compliance departments, improving how lower-level employees exercise their powers. But, in consonance with corporate law’s emphasis on power at the top, Gadinis and Miazad propose that whoever leads the compliance department (sometimes a Chief Legal Officer, but increasingly a Chief Compliance Officer) be in the C-suite and have clear lines of authority to communicate to the board. The threat of liability, they assume, will incentivize chief compliance officers to report to the board. Continue reading "Vice-Presidents in Charge of Going to Jail"

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