Yearly Archives: 2021
Newly released census data reveals that our rural places continue to shrink. The recent Intergovernmental Panel on Climate Change (IPCC) report cements that climate change is widespread and intensifying. The pandemic has hit hard in rural places, with outbreaks centered around slaughterhouses, which predominantly employ people of color. At the same time, the country as a whole is reckoning with issues of racial justice.
All of these issues surface in Professor Jessica Shoemaker’s latest article, Fee Simple Failures: Rural Landscapes and Race. The forthcoming article examines ways that property law has created and perpetuated serious problems with the rural agricultural land tenure system. Continue reading "Rethinking the Fee Simple in Rural America"
Luke Norris, Neoliberal Civil Procedure
, 12 U. C. Irvine L. Rev.
___ (forthcoming, 2022), available at SSRN
In discussing federal rulemaking, civil procedure teachers have long pointed out prevailing norms of impartiality and neutrality. But most understand that the promise of neutral rules, as applied, often falls short of these aspirational goals. This realization prompts students to think beyond case outcomes and to reflect on the interests that courts serve by their judicial decisions. Commentators have analyzed the Court’s embedded political preferences, centering on the Court’s pro-corporate and anti-plaintiff bias that denies access to justice and “closes the courthouse doors.”
In Neoliberal Civil Procedure, Luke Norris pursues this enquiry, setting forth a sophisticated explanation grounded in neoliberal economic theory. His general themes and conclusions are the same as the “access to justice” crowd: that the way in which the Court has interpreted procedural rules has placed barriers to citizens seeking to vindicate rights in civil litigation. Norris endeavors to move the discussion beyond the simple incantation that the Court is pro-corporate and anti-plaintiff. Instead, Norris explains how neoliberalism has become a prevailing model in the Court’s application of procedural rules. Continue reading "Recasting the Corporate Bias of Civil Procedure: A Neoliberal Theory"
Structural forces, including workplace organization and policies, are a documented cause of inequality. These forces disproportionately burden and therefore contribute to the underrepresentation of women and lawyers of color in positions of power and influence, systematically reproducing the male, Caucasian hierarchy atop BigLaw’s equity partners. The lingering impact of these structural forces—counteracting the effectiveness of diversity, inclusiveness, and equity initiatives—has been a problem for BigLaw leadership for years. But what if, contrary to conventional wisdom, structural forces can instead increase—or at least not disadvantage—equality? In Accidental Feminism, winner of the American Sociological Association’s Distinguished Book Award from the Sociology of Law Section, University of California at Irvine law professor Swethaa Ballakrishnen explores this very intriguing question.
Presenting original empirical work collected in 2011-15, Ballakrishnen documents how, without adopting well-intentioned equality policies, India’s elite large law firms have become “accidental” feminist organizations featuring gender parity in their senior and equity partner ranks. According to the book, this surprising development was the result of a confluence of circumstances, “structural conditions that fortuitously have come together to create environments of emancipation for . . . women lawyers.” (P. 2.) First is organizational novelty: India’s elite law firms are, relatively speaking, young institutions, relying on a neoliberal attorney workforce educated in progressive law schools. Thus both the lawyers and the law firms are comparatively open-minded, even supportive of gender equality in the workplace. The second condition is globalization complete with an influx of capital and increased international demand for Indian legal services. Third and relatedly, accidental feminism depends on a receptive interactional global audience – India’s BigLaw are locally organized institutions doing work for global entity clients. Fourth, these conditions are all taking place in a particular cultural moment of close-knit family units and a caste-dependent labor force, which supplies women (and men) equity partners with affordable housework and childcare support system. Hence, Ballakrishnen establishes that India’s BigLaw’s feminism was accidental but not random. Continue reading "Accidental Equality"
Mia Bay’s fantastic new book, Traveling Black, is both a richly detailed history of travel and transportation from the late nineteenth century to the 1960s that centers the experiences of Black travelers, and a deeply researched history of resistance to discrimination that brings to light those travelers’ active and ongoing efforts to demand equal treatment.
Bay keeps the focus on Black travelers throughout, explaining in granular detail all of the ways in which one’s experience of travel depended on one’s race. The first several chapters each focus on a single form of travel—railroad, car, bus, and airline. In each chapter, Bay offers detailed descriptions of how formal and informal restrictions imposed by white lawmakers and business owners affected where and how Black travelers were able to ride, drive, wait, eat, drink and sleep. One notable strength of Traveling Black is Bay’s ability to tell a national story about multiple kinds of transportation while also directing readers’ attention to how the “complex pastiche of law and custom created racial rules that were too inconsistent to be easily followed—or endured.” (P. 8.) Practices differed by region, by state, and by city. Some of the discrimination, segregation, and exclusion she describes was a matter of individual discretion or business practice or local custom. Airlines, for example, created “a variety of unobtrusive approaches to discouraging Black passengers—which never ended up in court.” (P. 210.) In other areas these practices were supported by formal laws requiring segregation and empowering transportation workers as enforcement agents. Continue reading "Fighting Racism in Travel and Transportation"
The language of private law is the language of rights, duties, and obligations. There is a long tradition of thought that interprets that language as the reflection of private law’s foundations, and that therefore reads judicial and legal discourse about private rights as the reflection of deeper, pre-legal rights that private law institutions recognize and enforce. This leap from private law discourse to private law’s foundations must be somehow explained. There must be some reason that explains, in other words, the connection between the rights and obligations that private lawyers talk about and our moral rights and obligations. One strategy goes this way: in the state of nature, we have certain rights that we are free to enforce against others. When we enter civil society, we can no longer enforce those rights at will, because the state claims the monopoly of the legitimate use of coercion. As a consequence, a morally decent state has the obligation to give us, as private agents, a substitutive mechanism to seek redress for rights violations in conditions of civil society.
In a careful and powerful article, On the Moral Necessity of Tort Law: The Fairness Argument, Sandy Steel calls this idea the “fairness argument.” In Steel’s reconstruction, the fairness argument basically claims that, because (i) citizens have been deprived of certain pre-legal moral enforcement rights by the state; (ii) citizens are morally entitled to a substitute for those rights from the state; and (iii) the morally required substitute for those rights is tort law, the state has a pro tanto duty to establish tort law whenever direct personal enforcement of citizens’ rights has been prohibited. (P. 195.) Steel does a great job of reconstructing the argument and offering its best version, but ultimately he believes—on the basis of four general objections—that the fairness argument cannot justify anything more than a very minimal tort law. Continue reading "False Necessity and the Political Morality of Tort Law"
- Cathay Y. N. Smith, Weaponizing Copyright (May 2, 2021), 35 Harv. J. L. & Tech. __ (forthcoming, 2021), available at SSRN.
- Cathay Y. N. Smith, Copyright Silencing, 106 Cornell L. Rev. Online 71 (2021).
In two related pieces, Professor Cathay Y. N. Smith revisits the issue of plaintiffs using the threat value of copyright law to advance claims or interests other than protecting the value of original expression. As she documents, these threats appear to be on the rise in response to the growth of the internet and social media, the lack of coherent privacy law in the United States, and the comparatively powerful array of remedies copyright offers copyright owners.
This review focuses on the larger argument in Weaponizing Copyright, which generalizes from, and incorporates much of the argument from, Copyright Silencing. In it, Professor Smith has three overarching goals: (1) to expose the growing prevalence of “weaponizing” copyright; (2) to explain why copyright is more attractive than other bodies of law to achieve these non-traditional enforcement objectives; and (3) to argue that some non-traditional uses of copyright are justified while many others are not. Continue reading "The Threat Value of Copyright Law"
The Evans have done it again. After redefining the legal and analytical concept of jus cogens (peremptory norms of international law) as a species of fiduciary duty the state owes to human beings within its control in A Fiduciary Theory of Jus Cogens, Evan J. Criddle and Evan Fox-Decent have taken their novel thinking to tackle the extraordinarily urgent issue of non-refoulement under international law in the midst of the COVID-19 pandemic in their recent article The Authority of International Refugee Law.
Non-refoulement is the international legal duty to refrain from returning refugees to territories where they face a serious risk of persecution. While international law firmly places the duty of non-refoulement into the jus cogens camp in some scenarios, such as where the refugee faces a substantial risk of torture, positive and customary law are more ambivalent in other areas. For example, the Convention Relating to the Status of Refugees explicitly allows states to deny protection on a case-by-case basis when “there are reasonable grounds for regarding [a particular refugee] as a danger to the security of the country.” This hesitancy to formally and absolutely prohibit non-refoulement in positive international law raises serious obstacles for Criddle and Fox-Decent’s argument that non-refoulement should be considered a jus cogens norm, for a key feature of such norms is that they are non-derogable. Similarly, the very practice they seek to criticize—refoulement based on COVID-19—reflects a degree of state practice, undercutting the formation of customary international law. Continue reading "Non-refoulement as a Peremptory Norm of International Law (Jus Cogens) in the Age of COVID-19"
Dr. Carl Hart’s Drug Use for Grown-Ups: Chasing Liberty in the Land of Fear opens with a controversial admission. The Columbia University Ziff Professor of Psychology declares that he is “an unapologetic drug user” and, consequently, “a happier and better person.” Dr. Hart urges “responsible” adults to “come out of the closet” about their recreational drug use and its myriad beneficial impacts.
Two important contentions animate Drug Use for Grown-Ups. The first is the widely accepted notion among experts that America’s long-standing criminalization of certain drugs, grounded in their anti-scientific demonization and racialization, is the crux of our problem. Simply stated, our never-ending war on drugs, which has resulted in our country’s unenviable distinction as global mass incarcerator, is an expensive and racist failure. Dr. Hart aptly characterizes American drug policy as a “monstrous, incoherent mess.” Few drug policy experts would disagree. Continue reading "Coming Out of the Drug-Use Closet"
Noah Kazis opens his new article Fair Housing for a Non-Sexist City with an ambitious question: “What would a non-sexist city be like?” (P. 1684). America’s “built environment,” Kazis explains, is a stubbornly sexist one. (P. 1687.) Examples abound. Women—as both child-care users and child-care workers—are economically burdened because of land use restrictions on in-home day care in residential areas. (Pp. 1710-20.) Men—as the predominant users of economically-desirable shared housing models—are rendered homeless because of building code and zoning restrictions on single room occupancy units. (Pp. 1720-35.) Women and men—as partners—fall into traditional sex roles (that redound to the financial detriment of both) because of land use restrictions that make it harder for a parent (traditionally the woman) to be at home for children in one area and at work for a high-paying job in another. (Pp. 1735-45.) Kazis uses these examples—among others—to illustrate the problem his article targets: the entrenchment of Victorian America’s separate spheres ideology in today’s material landscape.
Fair Housing is a treasure trove of facts that will interest scholars of family law and of gender relations, including the fact that “[t]en percent of the gender pay gap between husbands and wives without children can be attributed to commute variables” (P. 1739), and the fact that cities historically excluded apartment houses and boarding “hotels” from residential areas in order “to preserve the ‘character and quality of manhood and womanhood.’” (P. 1726.) However, one of the most interesting facts that Fair Housing unearths is that neither litigants nor enforcement agencies have used the Fair Housing Act—a federal law dedicated to ensuring fair housing, after all—to challenge our built environment’s housing and land use practices; nor have scholars dedicated much attention to sexism in our material and architectural ecosystem. Kazis’s aim in Fair Housing is not so much to explain why that is so as to elaborate on what role the FHA might play moving forward. To that end, Fair Housing offers concrete examples and explanations of the ways in which the FHA can facilitate “fair housing for a non-sexist city” through its relatively robust disparate impact theory of liability and its statutorily unique provision requiring state and local governments to “affirmatively further” fair housing (P. 1692.) Continue reading "Fair Housing for a Non-Sexist Household"
RonNell Andersen Jones & Sonja R. West, The U.S. Supreme Court’s Characterizations of the Press: An Empirical Study
(August 10, 2021), available at SSRN
An independent judiciary and an independent press are two of the institutions most often associated with a constitutional democracy’s commitment to public accountability. Two of our most thoughtful Press Clause scholars—RonNell Andersen Jones and Sonja West—set out to document what the former (more specifically, the Supreme Court) says about the latter (the press), and how that has changed over time. What they found is both fascinating and disquieting.
Worried about “the fragile and deteriorating relationship between the press and the government” and what that means for the protection of press freedom, Jones and West identified every reference to the press made by any Supreme Court Justice in any opinion since 1784. They then coded each reference by content (e.g., whether the Justice addressed the press’s trustworthiness, the press’s impact on reputation and privacy, its value, its constitutional protection, and more) and by tone (i.e., whether the Justice’s reference reflected a positive, negative, or neutral characterization of the press).
This is impressive empirical work—work that has generated a rich data set that the authors will continue to mine in future scholarship (where, for instance, they plan to consider what the Court’s rhetoric means for the public’s perception of the Court, and what this in turn might mean for the protection of press freedom). Continue reading "How The Supreme Court Talks About the Press (and Why We Should Care)"