Yearly Archives: 2021

The Shadow of Abortion

Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harvard L. Rev. 308 (2020).

In her insightful Comment on June Medical Services L.L.C. v. Russo1 in the Harvard Law Review’s Supreme Court Issue, Professor Melissa Murray uncovers the “complicated and constitutive relationship between the Court’s approach to stare decisis and its abortion-related jurisprudence.” (P. 312.) She shows not only that stare decisis principles structure the Court’s abortion jurisprudence, but also that conflict over the abortion right shapes the Court’s approach to stare decisis. In this sense, Murray persuasively demonstrates how abortion casts a long shadow over other bodies of law, not least of which is the trans-substantive question of stare decisis.

Murray’s perspective invites us to appreciate how the abortion conflict provides a template for other struggles, both inside and outside the courts. Without saying so explicitly, her analysis helps us to make sense of ongoing contestation over the meaning and reach of Obergefell v. Hodges,2 the Supreme Court’s 2015 landmark decision recognizing same-sex couples’ constitutional right to marry. Even as same-sex couples exercise the right to marry nationwide, opponents of LGBTQ equality are seeking to narrow and limit the decision’s reach—without asking the Court to expressly overrule it. They rely, often expressly, on the campaign against abortion rights as a model. Continue reading "The Shadow of Abortion"

Taking Theory Out of a Participatory Cul-De-Sac

Jeff Pojanowski, Reevaluating Legal Theory, 130 Yale L. J. 1300 (forthcoming, 2021), available at SSRN.

Reevaluating Legal Theory, by Jeff Pojanowski, is a review essay on Julie Dickson’s work on indirectly evaluative legal theory takes in her 2001 book, Evaluation and Legal Theory, and her subsequent writing on the topic. More than this, it situates Dickson’s work within wider jurisprudential debates, preceding and continuing after her contributions. The essay amounts to a detailed guide through the terrain of jurisprudential methodology, which is both informative and stimulating, both cautious and boldly innovative. The reader is invited on a journey to be undertaken with less than favourable weather conditions, taking place under the menacing clouds gathering from the positivist/anti-positivist conflict. The route has been selected not so much as to feature moments of breathtaking vistas, as to require the reader to trudge through disappointing locations which have not lived up to their proclaimed attractions. We have to confront a dead end, or cul-de-sac (Pp. 1300, 1306), as well as admitting to being on the road to nowhere. (P. 1324.) Disappointing as this may be, one has to admire the instructive commentary accompanying each mis-step along the journey. Ultimately, this prepares us for the promise of a brighter destination, which holds out the hope of delivering what previous stopping points have failed to deliver.

Pojanowski characterizes what Dickson has sought to achieve by her indirectly evaluative approach as a dilemma for her: in reconciling within a concept of law “features of law that are (a) necessary or essential to all legal systems, based on (b) what those subject to the legal system find important and significant about law (c) without imposing a morally evaluative filter on those important and significant theoretical necessities.” (P. 1313.) At the heart of this dilemma is the need to bridge the contingent, relativistic, or particularistic perceptions discoverable at (b) with the universal features required at (a). (Pp. 1315, 1320, 1307, 1322.) This is exacerbated by a tension, or even outright conflict, between the participant perception and the theorist perception of what features are significant at (b). (Pp. 1317 n.86, 1319, 1323, 1328.) There is no easy fix available to the theorist so as to be able to impose uniformity on the range of participant perceptions of those features. Continue reading "Taking Theory Out of a Participatory Cul-De-Sac"

Should the Rules Committees be Remade?

Brooke D. Coleman, #SoWhiteMostlyMale: Federal Procedural Rulemaking Committees, 68 UCLA L. Rev. Disc. 370 (2020).

Federal Rules Committees hold significant power. For example, a recent amendment to the Federal Rules of Civil Procedure that was approved by the Civil Rules Committee narrowed the scope of discovery—which of course, may affect the outcome of a case. In the rulemaking process, each Committee decides whether a proposed rule is considered and votes on whether to adopt it. While other bodies stand in the way of a rule becoming law (proposed amendments can be blocked by the Supreme Court or Congress), almost invariably a rule becomes law once a Committee adopts the rule.

This is why Professor Brooke Coleman’s article is so important. She analyzed all Committee memberships over its approximately 80-year history. She found 94% of the Committee membership has been white. 81% has been men. Perhaps the current Committees are much more representative, but Professor Coleman shows that is not the case. White people continue to constitute an inordinately high percentage of the committee at 92% and the Committees are largely male at 62%. Continue reading "Should the Rules Committees be Remade?"

Dynamism and Real Property Taxes, Who Knew?

Andrew T. Hayashi, Dynamic Property Taxes and Racial Gentrification (Dec. 23, 2020), available at SSRN.

In his article, Dynamic Property Taxes and Racial Gentrification, Professor Andrew Hayashi makes the compelling case that dynamic real property tax regimes, under which gentrifying neighborhoods are taxed at a lower rate than non-gentrifying neighborhoods, encourage racial gentrification and raise challenging, previously ignored, distributional questions. (P. 20.) To put it more plainly, dynamic property taxes are real property taxes that depend upon a property’s history of values so that two properties worth exactly the same amount today, could be taxed at different rates if the properties’ values evolved in different ways over time.

As an initial matter, Hayashi’s work makes a valuable contribution to understanding just what “gentrification” is and how it affects individuals and communities. Many years ago, I attended a meeting with a mixed group of law professors and planning professors. It was there, for the first time, that I became aware that in some corners of the academy, “gentrification” is a bad word and always a bad word. Continue reading "Dynamism and Real Property Taxes, Who Knew?"

From the Ivory Tower to the Judicial Trenches: Are We Bridging the Divide?

Most in legal academia would consider citation of their law review article in a judicial opinion an honor. However, most probably also remember Chief Justice Roberts’ 2011 comment that an article about “the influence of Immanuel Kant on evidentiary approaches in Eighteenth Century Bulgaria or something…isn’t of much help to the bar.” The Chief Justice’s comment may leave you wondering how often judicial opinions have cited law review articles and what factors might make your article into a rare unicorn. Mr. Detweiler answers these questions and more in May It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals.

Mr. Detweiler has compiled a list of state and federal court citations to legal academic journals from 1945-2018 and mapped them as a proportion of all reported opinions and by total number annually. He tracks the ebb and flow of citations through the years and makes interesting observations about what may influence increases and decreases in citation frequency. But he doesn’t stop there. His research then compares citation frequency from 1970-2018 of articles in Harvard Law Review and Yale Law Journal with flagship journals from sample schools in each tier of the U.S. News rankings. The article also includes a scan of the history of academic law journals, the first citations of journals, and the explosive growth of journals starting in the 1970s. Continue reading "From the Ivory Tower to the Judicial Trenches: Are We Bridging the Divide?"

Feeling Dirty: Emotional Taint and Use of Emotion as an English Criminal Barrister

In studies of the legal profession, we examine what lawyers do within and to the justice system in which they work in specific and conceptual ways. We also consider what the work does to lawyers. And, as many have noted, these two are intertwined and bi-directional. Clare Gumby and Anna Carline provide a fascinating perspective on this relationship by applying affect theory to the results of their interviews with criminal attorneys working on rape cases in England. The study reports on findings from 39 interviews with barristers1 from across England who defend or prosecute rape cases (the vast majority of whom regularly act in both capacities).

Gumby and Carline explain the theory they use to understand their results:

Affect is used to describe emotions (e.g., anger and fear) but also encompasses bodily sensations (e.g., shame, guilt and excitement) and other ineffable feelings and senses. These may be positive or negative, fleeting or sustained, experienced consciously and unconsciously and may sit outside of language in terms of being able to articulate. Here, we use affect theory, with its focus on relationality and embodiment, to understand how barristers can be transformed by their work and aim to move jurors—recognizing the body’s capacity to affect and be affected.

Defending or prosecuting in criminal prosecutions alleging sexual violence evokes emotions in us all. “Outsiders think all of it sounds pretty awful,” says one barrister. Sociological studies of occupations “that society views as unpleasant, disgusting or morally questionable” have been considered against a socially constructed idea of “dirty work.” Gumby and Carline adopt this lens to understand criminal lawyers’ construction of their own work. Specifically, they consider acting in rape cases as dirty work for its association with predominantly female victims as sexually tainted according to persistent gendered conceptions, working with those accused of socially stigmatised offending, combative adversarial styles and getting “physically dirty” where there is a necessity of proximity to “blood, semen and vomit and in the most extreme cases, death and decay.” Continue reading "Feeling Dirty: Emotional Taint and Use of Emotion as an English Criminal Barrister"

A New and Challenging History of Nat Turner and His Rebellion

Christopher Tomlins’s new book, In the Matter of Nat Turner: A Speculative History, is a tour de force. It retells the history of Nat Turner’s famous rebellion with a focus on Turner’s religious motivations. The book begins by explaining the shortcomings of previous accounts of Turner, attempting to reconstruct what might have motivated Turner to decide in August 1831 to lead a group of fellow slaves on a campaign in Southampton, Virginia, “to rise up and kill all the white people.” Tomlins’s book shows how historical speculation and conjecture can be done in a way that is nonetheless solidly grounded in biblical, philosophical, anthropological, and historical context. The book is about Turner, yes, but insofar as it demonstrates the approach—call it “grounded speculation”—it is also a reflection on history itself and what to do as a historian when the historical event you are interested in is simultaneously under-documented and over-interpreted.

Tomlins begins by outlining the problems with two widely-relied upon accounts of the Turner Rebellion, both titled The Confessions of Nat Turner, which co-opted Turner in the service of other agendas. First, there was the contemporary account given by white county lawyer Thomas Ruffin Gray to whom Turner confessed while in prison awaiting trial. Gray produced a very complicated text about which Tomlins writes, “[it] is undoubtedly evidentiary, but evidence of what?” (P. 31.) What follows is a very nuanced reading of the work and what can and cannot be inferred from it. Continue reading "A New and Challenging History of Nat Turner and His Rebellion"

A Bold Take on Copyright Implications of Text & Data Mining

Michael W. Carroll, Copyright and the Progress of Science: Why Text and Data Mining Is Lawful, 53 UC Davis L. Rev. 893 (2020).

Professor Carroll is not the first copyright scholar to have asserted that text and data mining (TDM) is and should be lawful as a matter of copyright law (and he probably won’t be the last).1 The hook that pulled me through the 72 pages of his excellent article was the introduction’s announced intention to explain why use of TDM tools to run searches on digital repositories of infringing copies of copyrighted works do not infringe, at least as a matter of U.S. copyright law.

Text and data mining is a multi-stage technical process by which researchers compile and refine large quantities of text and other data so that it can be processed with statistical software to detect patterns that would be difficult or impossible for a human to perceive without the aid of the machine. The article considers the legality of TDM using SciHub as an exemplar. SciHub is a well-known repository of vast quantities of the scientific journal literature. Many scientists want to do TDM research using SciHub, but courts have held that that database is infringing. Although SciHub has more than once been forced to shut down, it has re-emerged every time and can still be found on the Internet. Continue reading "A Bold Take on Copyright Implications of Text & Data Mining"

Delaware’s Place in the World

William J. Moon, Delaware’s Global Competitiveness (Jan. 30, 2021), available at SSRN.

Post-election headlines that Delaware is finally “on the map” after “centuries of obscurity” are anathema to corporate law scholars. Delaware has long been at the center of US corporate law. US corporations may choose where they organize, untethered to their physical location. This creates the tantalizing – and much-studied – possibility of a market for corporate law. In many accounts Delaware dominates that market, with the majority of Fortune 500 companies organized in the state. But the market for corporate charters is not just a domestic US market. It is also a global market. And in the context of that market, Delaware is not doing so well. In Delaware’s Global Competitiveness, Professor William Moon studies the place of Delaware corporate law in the world.

Moon steps into a crowded field, against the backdrop of decades of articles about the reasons for Delaware’s dominance, debunking or promoting or explaining the market for corporate law. But Delaware’s Global Competitiveness and Moon’s recent companion article Delaware’s New Competition fill a key gap. As Moon points out, the discussion of Delaware’s corporate dominance has almost entirely neglected the global scope. Continue reading "Delaware’s Place in the World"

Illuminating The Problems of Electricity Regulation

Shelley Welton, Rethinking Grid Governance for the Climate Change Era, Calif. L. Rev. (forthcoming 2021), available at SSRN.

Energy law today should be everyone’s concern, and especially the concern of administrative law scholars. Scientists report that we are in a climate emergency. Policymakers agree that the electricity sector will be vital to the clean energy transition. A functional electric grid is also a public good that cannot be taken for granted, as the recent disaster in Texas underscores. State and federal agencies, in partnership with their sibling branches, will play a pivotal role in administering the energy solutions the nation adopts. It is an administrative law problem for the ages.

Yet the field of energy law can be an impenetrable slog (I say this as a once and future teacher of the class). Really grappling with energy administration requires excavating dense layers of complex science and technology, unusual regulatory structures, and endless insiders’ terminology to reveal the important problems that lie beneath. Professor Shelley Welton is here to help. In a series of articles, she has elegantly translated the core dilemmas of the clean energy transition. Problems that seemed hyper-technical emerge as familiar administrative law issues of accountability, institutional design, and allocations of power among public and private entities. I’ll focus on one article, Rethinking Grid Governance for the Climate Change Era, but I recommend the entire series, available on SSRN. Continue reading "Illuminating The Problems of Electricity Regulation"

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