Yearly Archives: 2020
Köpcke’s Legal Validity — The Fabric of Justice is an extremely rich and significant book which displays the excellent analytical and philosophical gifts of its author. It is, to my knowledge, the first book-length treatment of its subject, and contains much food for thought, and comfort, especially for hard and soft positivists. It is a manifesto for neither of those arguments, but its central topic, legal validity, is a preoccupation of both. But its treatment of its other central topic, justice, provides numerous arguments that are of keen interest for natural lawyers. The book, then, puts new ideas onto the table that promise to help break new ground in existing debates about the nature of law.
This brief review cannot hope to mention, even in passing, all of the many insights and lines of argument contained in the book, and, where necessary, simplifies points that are in fact very complex. Furthermore, since this is a review of what the reviewer likes about the book, it will for the most part refrain from intellectual criticism of some of the book’s arguments. I shall, however, raise parenthetical questions. (These are friendly questions. I do not suggest that these questions particularly disturb the author’s account, merely that they are raised by that account.) Continue reading "Brief Notes on Validity and Justice"
Dev Saif Gangjee, Trade Marks and Innovation?
, in Trademark Law and Theory II: Reform of Trademark Law
(Edward Elgar), (forthcoming), available at SSRN
In his soon-to-be-published chapter Trade Marks and Innovation?, Dev Gangjee brings needed critical analysis to a growing body of recent research that focuses on the relationship between trademarks and innovation. As Gangjee notes, the claims of this research challenge traditional understandings about trademark law. The “stable consensus,” Gangjee describes, has been that “trade mark law had nothing to do with innovation, the ‘ordinary trade mark [having] no necessary relation to invention or discovery.’” But what if it does?
Trademark law has “nothing to do with innovation” in the sense that eligibility for trademark protection doesn’t consider the mark’s relation to innovation. Marks are eligible for trademark protection, as the Supreme Court held in 1879, because of their source-indicating capacities, not because of any “novelty, invention, discovery, or any work of the brain.” Indeed, the fact that trademark law protects only source indication traditionally has been used as justification for the potentially perpetual rights that a trademark bestows. Continue reading "Innovating Trademark Theory"
In 2020, the World Bank published the 17th annual Doing Business Report (DBR), openly tying it to salutary reforms in the 190 nations the report evaluates across a range of regulatory arenas. Academic inspiration for the DBR is routinely linked to the “legal origins” argument which classically claimed that countries with common law legal heritage perform better economically—most acutely by favoring creditors and minority corporate shareholders. Together, the DBR and legal origins scholarship (LOS) have enjoyed a mutually-reinforcing success leading to thousands of academic citations and numerous induced reforms across the globe.
Yet, the success of the DBR/LOS juggernaut is matched by comparative law scholars’ equally vigorous critiques of its systemic deficiencies. New iterations of such rejoinders are recurrently juxtaposed with comparative law scholars’ longstanding lament regarding the marginality of their perspectives in many international reform agendas. For all the intellectual energy devoted to this debate over the past two decades, Dan Puchniak and Umakanth Varottil’s Related Party Transactions in Commonwealth Asia now stands out as the clarion critique of the DBR/LOS approach. Continue reading "Intransigent Indices and the Laments of Comparative Law: Why Legal Origins Won’t Die"
Medha D. Makhlouf, Laboratories of Exclusion: Medicaid, Federalism & Immigrants
, 95 N.Y.U. L. Rev.
__ (2020), available at SSRN
The allocation of public health authority in the United States across more than 2,000 federal, state and local government departments has produced a decentralized, disjointed response to the novel coronavirus disease 2019 (COVID-19). The COVID-19 pandemic also lays bare the vast inequalities in health based on race, ethnicity, and income, and how limited access to health care for some can adversely impact the many. This has brought increased attention to our federalist form of government and the merits of dividing power in the health care arena between a national government and states. Broader health care reform debates about the Affordable Care Act, a public health insurance option, and single payor raise similar questions about federalism’s role in health policy.
Medha Makhlouf’s forthcoming article, Laboratories of Exclusion: Medicaid, Federalism & Immigrants, adds an important and timely contribution to this discussion by providing an in-depth study of federalism’s role in shaping state policies on immigrant eligibility for Medicaid. The article shows how Medicaid’s cooperative federalism structure has not only failed to produce one of the cited benefits of federalism ─ better policy outcomes from state experimentation and innovation ─ but has encouraged the opposite ─ policies that favor the exclusion of immigrants from Medicaid and weaken national health policy goals. Moreover, the article shows how federalism can frustrate national policies that seek greater health equity and even exacerbate existing health inequalities. Continue reading "Federalism and Health Care: Lessons from State Policies on Immigrants’ Eligibility for Medicaid"
B. Jessie Hill, The Geography of Abortion Rights
, _ Geo. L.J.
_ (forthcoming 2021), available at SSRN
In The Geography of Abortion Rights, Professor B. Jessie Hill provides a novel, timely mapping of the “geographic dimension of abortion restrictions.” (P. 4.) Some restrictions rely on borders to serve as actual barriers, such as laws that attempt to restrict adults from transporting young people across state lines for abortion services. The effects of other laws, which force clinics to close, fix the borders of “abortion deserts” around which patients travel hundreds of miles to reach the nearest provider. Still other laws, such as medically-unnecessary ultrasounds, trespass bodily borders by requiring “visual and narrative mapping of physical spaces within the woman’s body.” (P. 5.)
In all and more of these examples, Hill argues that “regulating place is a way of subtly drawing lines of social exclusion and inclusion and re-inscribing social inequality.” (P. 6.) By this, she suggests that states, under the guise of protecting a patient’s health and safety, use law to demarcate borders that marginalize abortion care. The effects are uneven and regional, and the burdens of inaccessible care fall hardest on people who already find complying with state restrictions costly and difficult. Continue reading "Borders as Burdens"
Fifteen years ago, U.S. legal scholarship treated central banks like the neglected stepchildren of bank regulation and administrative law: hardly anyone wrote about them, and no one who did not work for them seemed to care. The financial crisis that began in 2007 put the Federal Reserve, the Bank of England, and the European Central Bank in the middle of national and global crisis response strategies, and instantly made central banks the center of attention in a rich and fast-growing legal literature that continues to attract exciting new scholars.
Nonetheless, ceding central banks to economists for so long turned out to be costly: lawyers have spent much of the last decade fleshing out the underlying assumptions and basic terms of the debate, and deciding whether and how to assimilate economists’ theories of central banking into their own. The foundational question of distribution—how central banks’ monetary policy and financial stability activities distribute resources and allocate losses from crises among constituents—has lingered especially awkwardly over this area.
The slightly-stylized standard view associates distribution with fiscal policy, politics and legislatures. In this view, monetary and financial stability policies of the sort conducted by central banks do not distribute: they are for everyone at once, no one in particular, and best left to independent technocrats. This standard view is increasingly at odds with public perceptions of central banks as purveyors of bailouts for the few and peanuts for the rest. The disjunction can become a big political problem, freshly salient in the face of the multi-trillion-dollar response to the COVID-19 pandemic. The pandemic response again put central banks at the center, and took me back to Nadav Orian Peer’s pre-pandemic article situating the Federal Reserve at the intersection of political battles over corporate concentration, regional and sectoral development and, of course, money. Continue reading "Central Banks’ Distribution, Revisited"
Stephen Rushin & Roger Michalski, Police Funding
, 72 Fla. L. Rev.
For eight minutes and forty-six seconds, Derek Chauvin pinned George Floyd’s neck to the ground outside of the Minneapolis Cup Foods on Chicago Avenue. Floyd’s shocking death, captured on a bystander’s cellphone video, led to criminal charges against Chauvin and the three other officers involved in the arrest. Floyd’s death also catalyzed thousands of protests around the United States and the world, and to the rallying cry of “defund the police.” These three words are memorable, but what do they mean? It depends whom you ask. For some, “defund the police” means reallocating some of the non-criminal duties that have become the responsibility of the police–think of outreach to the homeless and the mentally ill–to other non-police community service providers. For others, it is less a literal command and more a call to reimagine the objectives of street policing. And for some, it is indeed about police abolition.
But if we take these calls seriously and literally, they aim to reduce police department budgets as a method of reform. Unlike close analyses of the Fourth Amendment or legislative responses, police budgets usually escape the attention of legal scholarship. But in Police Funding, Stephen Rushin and Roger Michalski have presciently raised this issue as a topic of serious study. Police reform advocates calling for “defunding the police” should pay attention to the important observations the authors raise in their timely article. And one of the article’s central arguments is especially relevant after George Floyd’s death: that adequate funding should be seen as a prerequisite for accountable, democratic, and professional policing. Continue reading "What If “Defunding The Police” Makes Policing Worse?"
The field of judicial administration has started to produce an embarrassment of riches. Many of the legal academy’s best young scholars are taking up critical issues related to how courts operate and how judges reach their decisions. Two forthcoming articles (and their authors), which take on the topic of non-binding authority, are perfect exemplars: Maggie Gardner’s Dangerous Citations and Merritt E. McAlister’s Missing Decisions.
As we know, courts cite to binding precedent in their opinions to support a particular point (e.g., the law on X is Y in Z jurisdiction). There are times, however, when courts cite to non-binding precedent, be it a published opinion from a court that cannot bind it or an unpublished opinion that binds no court. And we generally have assumptions about how this process works. First, that courts cite to non-binding authority sparingly and only when truly appropriate (e.g., for a persuasive point that is not well captured elsewhere). Second, that all decisions that a court might cite—including unpublished ones—can easily be accessed and assessed by the public. Gardner and McAlister challenge these assumptions in their respective articles. Continue reading "The Status of Non-Binding Authority"
The Law of Rescue connects aiding migrants to the body of law governing rescue generally. Professor Shalini Bhargava Ray proposes a new theoretical framework for the law of rescue based on her examination of prosecutions for migrant rescue. Her framework de-emphasizes economic interests and lifts up considerations of liberty and dignity.
While “[t]he law of rescue was not designed to express, promote, or protect the human dignity of beneficiaries or the liberty of rescuers,” (P. 623) Professor Ray argues that it should be redesigned to do so. Her new framework would balance three considerations: (1) the rescuer’s liberty to engage in the rescue; (2) the beneficiary’s need for rescue; and (3) the potential third-party harm flowing from a consensual rescue. Continue reading "Rescue Based in Liberty and Dignity"
David A. Hoffman and Cathy Hwang, The Social Cost of Contract
, __ Columbia L. Rev.
__ (forthcoming), available at SSRN
Almost ninety years ago, Morris Cohen taught us that the primary role of contract law is to place the enforcement mechanism of the state at the service of one party against the other (Cohen 1933, Pp. 585–86; see also Zamir 1997, Pp. 1777–78). Since enforcement of contracts entails the exercise of governmental powers and the use of public resources, contract law (like the rest of private law) is part of public law. This means that whatever the role played by freedom of contract, it cannot be the only principle that motivates the law. Contract law inevitably reflects public concerns, as well. Most obviously, it follows that whenever a contract creates substantial negative externalities—that is, whenever it adversely affects the well-being of other people—there are prima-facie grounds for curtailing freedom of contract (Zamir & Ayres 2020, Sec. 1.A). Examples of doctrines that serve this goal include the rules concerning illegal contracts, contracts against public policy, and various other mandatory rules.
As in past epidemics, COVID-19 creates situations in which the performance of contracts might adversely affect the public at large. These include contracts pertaining to events with many participants—such as weddings, funerals, and conferences—which may turn into super-spreading events. It also includes more mundane contracts, such as between universities and students, since attending ordinary classes may also result in spreading the disease. Performing such contracts may or may not be forbidden by law. Either way, one of the parties (typically, but not invariably, the customer) may wish to back out of it—in which case a legal dispute may arise. How should such disputes be resolved? What should we advise the parties to do in such circumstances? These questions lie at the heart of David Hoffman’s and Cathy Hwang’s highly recommended article, The Social Cost of Contract. Continue reading "Contracts in the Time of COVID-19"