Monthly Archives: September 2020

Is Resilience Resilient?

Robert L. Fischman, Letting Go of Stability: Resilience and Environmental Law, 94 Ind. L.J. 689 (2019).

All it took was a frequently lethal, highly infectious, globally distributed virus. In anxious self-protection, Homo sapiens drastically curtailed the planet-altering behaviors we call “economic activity.” The non-human parts of our ecosystems responded. Above cities, toxic and murky air cleared. Fossil fuel extraction sputtered; greenhouse gas emissions slowed. Wild animals returned to places from which they had long been exiled. Birds singing for mates vied more with each other and less with the drone of humanity. Even Earth’s own seismic rumbling sounded more distinctly against a diminished background of people’s percussive pounding.

The pandemic pause accomplished, however briefly, results that have eluded all the world’s environmental policy makers. These results reminded us just how tight the correlation is between the human economy and human environmental impact–and, by negative implication, exploded the myth that “sustainability” can be a pragmatic and achievable goal of environmental law. The Earth has shown that to sustain normal levels of human population and economic growth, ecosystems must absorb massive, deeply disruptive, perturbations. In Letting Go of Stability, Professor Robert Fischman rejects the sustainability shibboleth and thoughtfully explores the potential of resilience, rather than sustainability, to provide a conceptual anchor for environmental law in the decades ahead. Continue reading "Is Resilience Resilient?"

Situating the Tax Law:  Exceptions, Not Exceptionalism

Alice Abreu & Richard Greenstein, Tax: Different, Not Exceptional, 71 Admin L. Rev. 663 (2019).

Level-headed approaches are rare in discussions of how the administration of tax law should fit into the larger body of administrative law. Alice Abreu and Richard Greenstein’s Tax: Different, Not Exceptional is one of those rare exceptions. All too often, advocates have portrayed the question as having an all or nothing answer, coded as whether tax is “exceptional.” If yes, then the norms of administrative law don’t apply; if no, then they all apply. (And, for many, if these norms all apply, the vast bulk of the work product of the Treasury and the IRS is tainted and should be questioned by the courts.) Abreu and Greenstein persuasively point out that this approach is simply useless.

Careful observers should always have appreciated that neither position is supported by the existing statutory framework. For some aspects of tax administration, there are exceptions in the Administrative Procedure Act itself, and additional exceptions are provided in other titles of the United States Code. But as Abreu and Greenstein point out with reference to Sorites Paradox, a heap of exceptions is often only just that, a heap of discrete exceptions. Even if each of those exceptions is well-founded, they do not necessarily mean anything about the other items that could be removed from the pile, or even about the nature of the pile itself. The questions that remain, given this reality, relate to how these discrete exceptions should be interpreted, and whether these exceptions have any implications for items not covered by their specifics. Tax: Different should go a long way toward establishing this approach to answering these administrative law questions. Continue reading "Situating the Tax Law:  Exceptions, Not Exceptionalism"

Masters of the Code

I teach at a school most of whose graduates take jobs, at least for a few years, as associates in one of the 100 largest corporate law firms. Until their first stint as summer clerks, and even for some time thereafter, most of them know very little about the work firm lawyers do. Law schools don’t do much to enlighten them on these matters. Scholarly treatments of the social effects of business lawyering are rare. We have, of course, plenty of scholarship on substantive fields of business law – corporate law, tax, securities, intellectual property, and so forth. Sometimes practitioners come into our classrooms to help students understand how to structure corporate deals, such as a merger or initial public offering.  These are useful forms of training, but not much help if we are trying to understand the social and economic contributions of corporate lawyers. What is their role in society? What value do they add or as their critics would ask, subtract? Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality, identifies both the positive and the negative in their work.

The business lawyers I habitually talk to tend to respond rather vaguely to questions about their social functions. They identify themselves as among the professionals in the legal-and-financial-services industry like accountants, underwriters, or insurers who provide technical services to implement business decisions and deals of their clients. “We grease the wheels of capitalism” is a common phrase, or, as a law firm partner interviewing me for a job once put it, “We are the pants pressers for American business.” This formula identifies the lawyers’ role as auxiliary to the real movers and shakers, the entrepreneurs and investment bankers and managers of capital. Other business lawyers describe their job primarily as that of risk-managers: they help their clients identify sources of “legal risk,” such as potential adverse litigation, or regulatory and tax consequences of decisions. Competent risk managers, of course, aren’t just doom-and-gloom merchants: they try to help their clients structure their dealings so as facilitate their taking “good risks” and to avoid or minimize “bad risks.” Still others – often litigators – identify corporate lawyers with the classic paradigm of the libertarian champion of the free market, or the heroic defense lawyer resisting the authoritarian state and the greedy faux-populist plaintiffs’ bar. Rather less flattering accounts are sometimes heard from businesspeople who cast lawyers as operators of a vast protection racket, creators of dense complex webs of regulation that their expensive technical skills are then required to navigate. Continue reading "Masters of the Code"

Stay (Faraway, So Close!) in Touch with Civil Procedure

The current global pandemic continues to disrupt our lives. But the pandemic has also inspired some pleasant surprises in the legal profession, ranging from humorous ways of engaging with law students to inventive ways of improving access to justice.

I want to highlight a particularly pleasant surprise for civil procedure scholars—the Civil Procedure Unavailability Workshop (the “Workshop”), a virtual workshop organized by Suzanna Sherry and Adam Steinman that has met weekly this summer and will continue monthly in the fall. (Full disclosure—Adam Steinman is the co-editor of the Courts section of JOTWELL, and I presented at the Workshop in early June). A full list of previous and upcoming presentations can be found here. Continue reading "Stay (Faraway, So Close!) in Touch with Civil Procedure"

Tear It All Down: Highways as Racist Monuments

Deborah N. Archer, “White Men’s Roads Through Black Men’s Homes”: Advancing Racial Equity Through Highway Reconstruction, __ Vanderbilt L. Rev. __ (forthcoming, 2020), available at SSRN.

In recent months, citizens and elected officials around the country have been tearing down or ordering the removal of monuments that symbolize white supremacy and subjugation.1 While many of the targeted monuments are statues of people who supported or espoused racist ideologies, another set of more innocuous monuments to racial segregation still stand: America’s Highways.

In her forthcoming article, “White Men’s Roads Through Black Men’s Homes”: Advancing Racial Equity Through Highway Reconstruction, Professor Deborah N. Archer examines the way that the U.S. highway system served as a tool of segregation, both destroying and isolating Black communities. Continue reading "Tear It All Down: Highways as Racist Monuments"

Integrating Spaces: The Fight for Sex Equality in Public Accommodations

Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L. J. 78 (2019).

Advocates of equality breathed a sigh of relief when the Supreme Court issued its opinion in Bostock v. Clayton County, interpreting the word “sex” in Title VII to include employment discrimination based on gender identity and sexual orientation. Title VII is just one part of the sweeping and historic Civil Rights Act of 1964 (CRA), drafted primarily to help remedy the scourge of racial discrimination across various areas of public life. Representative Howard Smith inserted the word “sex” in Title VII towards the end of the drafting process, not as a means to sink the act (as the apocryphal story goes) but at the urging of feminist activists.1 Probably even more controversial than Title VII at the time of the CRA’s passage was Title II, prohibiting discrimination based on race, religion, or national origin in public accommodations. No lawmaker added “sex” to this provision, and it remains absent today in this provision of the statute.

Perhaps this absence helps to explain why legal historians have paid scant attention to the achievement of sex equality in public accommodation laws. Elizabeth Sepper and Deborah Dinner make a major corrective in their excellent article, Sex in Public. They present a broad-ranging and timely discussion of the wide variety of forms of sex-based discrimination in public life in the 1960s and 1970s. They recount the tireless efforts of feminist activists to dismantle these forms of sex segregation. Activists were motivated in part by a radical vision of sex integration that was never quite realized in the law. As the authors show, this recaptured vision has the potential to help to inform today’s fight for full inclusion of members of LGBTQ communities. Continue reading "Integrating Spaces: The Fight for Sex Equality in Public Accommodations"

Dan Priel’s Naturalism

Dan Priel, The Philosophy of Law for a Naturalist: An Introduction to Artificial Law Theory, Osgoode Legal Studies Research Paper (June 12, 2020), available at SSRN.

In this provocative article, Dan Priel offers a naturalist approach to thinking about law. This naturalist approach, in turn, leads to two ambitious lines of arguments: first, rejecting many traditional jurisprudential inquiries, and, second, providing a highly unconventional view about the relationship of morality and law.

Naturalism (not to be confused with “natural law theory”) has been defined in different ways. Early in the article, Priel offers a useful (if, as he notes, imprecise) summary: naturalism is the view that “explanation[s] of [human] actions should be continuous, and of the same kind as, explanation of the nonhuman part of nature.” (P. 2.) Naturalism within legal philosophy has, for some time, been associated with Brian Leiter. However, Priel criticizes Leiter’s approach as being little more than an argument for (existing) empirical work on law, while offering no tasks for legal philosophy. As will be noted, Priel agrees that naturalism rejects some traditional jurisprudential topics, but he believes that there remains room for, and, indeed, a need for, a distinctively naturalist jurisprudence. Continue reading "Dan Priel’s Naturalism"

Recognizing and Correcting a Discrepancy

Marketa Trimble, The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies, 23 Lewis & Clark L. Rev. 501 (2019), available at SSRN.

Intellectual property rights are territorial. Infringement claims—of unauthorized copying, making, selling, using—involving patents, copyrights, trademarks, or trade secrets are extraterritorial. Courts are also territorial, and their jurisdictional reach often limited by geography. So, what happens when a successful intellectual property claimant seeks to remedy the wrong in the courts? How do extraterritorial harms map onto the territorial limits of courts and rights? In The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies, Professor Marketa Trimble offers a powerful analytic assessment of these issues, introducing new conceptual vocabulary and policy solutions. For innovativeness in framing and addressing an issue, Professor Trimble’s article is one that I like lots for the reasons I jot below.

To concretize the issue, Equustek v. Google, [20180 10 W.W.R. 715 (Can.)], provides the exemplary case. In Canadian court, Equustek alleged that Datalink, a rival computer hardware company, had stolen its trade secrets. When Datalink refused to comply with a Canadian court order, the company’s corporate officer fled the country, never to be apprehended. Equustek then sought an order in Canadian court against Google, seeking to have the company remove Datalink from all global search results. The Canadian court ordered this global injunction. With this example, we see a complex dynamic of intellectual property litigation across global boundaries. Continue reading "Recognizing and Correcting a Discrepancy"

Termination of Parental Rights of Mothers with Disabilities: The Role of the Americans with Disabilities Act

Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone & Stephen Fournier, The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions involving Disabled Mothers, __ Yale L. & Pol’y Rev. __ (forthcoming), available on SSRN.

The right to parent is recognized by the Supreme Court as a fundamental right, but this right remains elusive for many groups, including parents with disabilities. The Americans with Disabilities Act (“ADA”), heralded as landmark legislation for people with disabilities, turned thirty this year. However, parents with disabilities are still not adequately protected by the ADA, especially when they are involved with the child welfare system. In a forthcoming article in the Yale Law & Policy Review, Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone, and Stephen Fournier use empirical data to demonstrate how the ADA is routinely ignored in parental termination decisions in the child welfare system and suggest ways to ensure that the parenting rights of people with disabilities are protected. The article analyzes results of an empirical study conducted by Robyn M. Powell as a part of her doctoral dissertation. It contextualizes the results of her empirical work with a rich discussion of disability law and policy. I found it striking how the authors demonstrate with data that parents with disabilities are denied a key tenet of reproductive justice, the right to parent with dignity.

The article describes how the legislative history of the ADA indicates that the ADA was designed to protect parents with disabilities, especially in child welfare proceedings. Title II of the ADA requires child welfare agencies and courts to abide by a host of requirements including: providing people with disabilities an equal opportunity to participate in services, programs, and activities; administering services, programs, and activities in the most integrated setting appropriate to the needs of people with disabilities; and not applying eligibility criteria that tend to screen out people with disabilities. The article notes that most importantly, the ADA requires child welfare agencies and courts to treat disabled people on a case-by-case basis, consistent with facts and objectives, and not based on stereotypes and generalizations about people with disabilities. Continue reading "Termination of Parental Rights of Mothers with Disabilities: The Role of the Americans with Disabilities Act"

The Meaning of McDonald’s [®]

In 1984, the McDonald’s Corporation obtained a federal trademark registration for the mark MICKEY D’S for restaurant services, stating in its application that it had been using the mark since 1981. Research suggests, however, that the MICKEY D’S mark wasn’t the result of ad agency brainstorming but instead originated in the Black community in the United States as early as 1976. The McDonald’s Corporation’s subsequent adoption and use of the mark seems to have been part of a strategy to promote the restaurant chain back to the community from which the name emerged. (Specimens submitted in connection with maintenance activities include a national full-color ad that appeared in Jet and Ebony magazines in 1982.) David Green, senior vice president for marketing at the McDonald’s Corporation, implied this, glibly, in a 1996 article in AdAge, writing that the company’s work with the Black-run advertising firm Burrell Communications gave McDonald’s “the highest share of the African-American market. Talk to anyone in the ’hood, and they talk about Mickey D’s. We’ve become part of the vernacular.” Black consumers may have created “Mickey D’s,” but the federal trademark rights in the term now belong to McDonald’s.

The larger complicated relationship between McDonald’s and the Black community is the subject of Franchise: The Golden Arches in Black America, the excellent book by Marcia Chatelain, a professor of history and African American studies at Georgetown University. It’s a relationship that, in Chatelain’s telling, rests at the intersection of social change, economic development, and corporate profit, with seemingly contradictory valences. The company’s corporate practices were the subject of boycotts and protests at individual restaurants, but local franchises were also welcome sources of financial support for the communities in which they were located. The company took advantage of existing inequalities in various regions, including cheap land and a depressed labor force, and yet it also positioned itself as a source of employment and advancement for the Black community, particularly through its efforts to diversify its franchisee ranks in the wake of white franchisee flight in the 1960s. (Those franchise opportunities were not, however, often in economically prosperous neighborhoods.) Continue reading "The Meaning of McDonald’s [®]"

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