Monthly Archives: January 2021

The Multiple Faces of Textualism

Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265 (2020).

In her wonderfully-titled article, Which Textualism?, Tara Leigh Grove uses the recently decided Bostock v. Clayton County case to highlight a truth about statutory interpretation theory that scholars have largely ignored: Textualism is not a monolithic interpretive approach, but one that contains multiple competing strands. This observation is long overdue, and Bostock is an excellent vehicle for exploring its implications, given that the three separate opinions issued by the Court all claimed to employ a textualist interpretive approach—while reaching different outcomes.

Which Textualism? begins by differentiating between what Grove calls “formalistic textualism,” on the one hand, and “flexible textualism,” on the other—and uses this frame to discuss “some real, but underappreciated, disputes among textualists” regarding the universe of interpretive tools and resources courts should avail themselves of when interpreting statutes. Specifically, Grove argues that “formalistic textualism” authorizes interpreters to apply only a “closed set” of normative canons, whereas “flexible textualism” allows interpreters to consult a much wider range of canons, such as the absurdity doctrine, that invite considerable judicial discretion. Continue reading "The Multiple Faces of Textualism"

Beware of Strangers Bearing Gifts

Joshua Knobe, Scott J. Shapiro, Proximate Cause Explained: An Essay in Experimental Jurisprudence, 88 U. Chi. L. Rev __ (forthcoming, 2021) available at SSRN.

A familiar rhetorical trope in modern advocacy is: “Imagine if visitors from outer space were observing x; how would they describe it?” The payoff of this exercise is to get the audience to see that the view proposed by the speaker, while superficially unfamiliar, is actually more perceptive than the conventional understanding of the practice at issue. The subtext is that only with the benefit of insights gleaned from a great distance (or an unusual perspective) can those immersed in a practice truly understand it.

I could not help but think of this trope while reading Knobe and Shapiro’s fascinating—if at times frustrating—paper on proximate cause. Of course, they are not space aliens; they are both philosophers and one (Shapiro) is a law professor as well. But neither specializes in tort law, and by their own admission they are leveraging their distance from the conventional discourse of torts scholars and judges to arrive at insights that have otherwise eluded those of us immersed in the practice. Continue reading "Beware of Strangers Bearing Gifts"

No Machines in the Garden

Rebecca Crootof & BJ Ard, Structuring TechLaw, __ Harv. J.L. & Tech. __, (forthcoming, 2020), available at SSRN.

A decade ago, I mused about the implications and limits of what was then called “cyberlaw.” By that time, scholars had spent roughly 15 years experiencing the internet and speculating that a new jurisprudential era had dawned in its wake. The dialogue between the speculators and their critics was famously encapsulated in a pair of journal articles. Lawrence Lessig celebrated the transformative potential of what we used to call “cyberspace” for law. Judge Frank Easterbrook insisted on the continuing utility of existing law in solving cyber-problems. The latter’s pejorative characterization of cyberlaw as “law of the horse” has endured as a metonym for the idea that law ought not to be tailored too specifically to social problems prompted by some exotic new device.

It turns out, as I mused, that Lessig and Easterbrook and others in their respective camps were arguing on the wrong ground. Cyberspace and cyberlaw pointed the way to an integrative jurisprudential project, in which novel technologies and their uses motivate a larger rethinking of the roles and purposes of law, rather than a jurisprudence of exception (Lessig) or a jurisprudence of tradition (Easterbrook). But it has taken some time for elements of an integrative project to emerge. Rebecca Crootof and BJ Ard, in Structuring Techlaw, are among those who are now building in that direction and away from scholars’ efforts to justify legal exceptionalism in response to various metaphorical horses – among them algorithmic decision making, data analytics, robotics, autonomous vehicles, 3D printing, recombinant DNA, genome editing, and synthetic biology. Their story is not, however, primarily one of power, ideology, markets, social norms, or technological affordances. Julie Cohen, among others, has taken that approach. Structuring Techlaw is resolutely and therefore usefully positivist. The law and legal methods still matter, as such. The law itself can be adapted, reformed, and perhaps transformed. Continue reading "No Machines in the Garden"

The Upside of Investigating Taxpayers’ Approaches to the Downside Risks of Tax Law Change

Heather M. Field’s Tax MACs: A Study of M&A Termination Rights Triggered by Material Adverse Changes in Law presents information and insights about tax-specific material adverse change provisions in publicly filed mergers and acquisitions (M&A) agreements from May 2014–May 2019. Field identified and primarily focused on 13 agreements with “Tax MAC Out” provisions, meaning that these agreements provided an exit right that could be exercised unilaterally because of adverse tax law changes. Field also located 6 agreements that contained express Tax MAC provisions but that did not provide a unilateral ability to exit; most in this group were in the form of requiring the parties to work to address the tax change through restructuring, with termination expressly not following from an inability to complete such restructuring.

The article highlights the bespoke nature of Tax MAC provisions; while Field found that some boilerplate language recurred, there were also substantial differences among the agreements, and the article suggests explanations for the variability, tied to specific instances of difference. As Field notes, the heterogeneity suggests ample “opportunities for nuanced bargaining and value-added lawyering.” Continue reading "The Upside of Investigating Taxpayers’ Approaches to the Downside Risks of Tax Law Change"

Thinking Big in Thinking Small: Are Tiny Homes the Solution to Our Housing Crisis?

Lisa T. Alexander, Community in Property: Lessons From Tiny Homes Villages, 104 Minn. L. Rev. 385 (2019).

Our nation’s housing situation gets worse by the day. Even before the pandemic, subprime lending, exclusionary zoning, and modern-day redlining forced millions of households into unstable, unsafe, or unaffordable living situations. Now, with the pandemic wiping away jobs, we appear to be on the verge of an unprecedented national housing crisis that will start when the evictions and mortgage relief end. We need creative solutions now more than ever.

That’s why Lisa Alexander’s most recent law review article, Community in Property: Lessons from Tiny Homes Villages, is such a timely, significant contribution. Her work focuses on “tiny homes,” which she defines as being units of 400 square feet or less. Continue reading "Thinking Big in Thinking Small: Are Tiny Homes the Solution to Our Housing Crisis?"

Inequality in the Legal Academy – Gaining Insight into the Unequal Profession

In the wake of the killing of George Floyd, many U.S. law schools published messages supporting social justice and anti-racism, including promoting the role of law schools in educating students to become agents for change.1 These statements were generally outward-facing, aimed at addressing the experiences of people of color in communities and organizations outside of the schools. But internally, law schools reflect the racial and gender hierarchies permeating the legal profession and society generally, and this in turn frames their role in shaping future lawyers’ perceptions about who belongs in the legal profession. The faculty exerts an overarching influence on this question of belonging both through its own composition and in the language and agenda communicated through teaching.2

Meera Deo explores these dynamics in her book, Unequal Profession, which focuses on women of color law professors. By capturing the voices of this particular group of law professors and contextualizing them in an organizational and comparative context, the book makes a crucial contribution to understanding the divide between the experiences and career paths characteristic of women of color and those of their colleagues.3 Continue reading "Inequality in the Legal Academy – Gaining Insight into the Unequal Profession"

Why We Die: The Metaphysics of Death in French West Africa

As the parent of a very curious four-year-old, I am accustomed to being asked the question “why?” about every statement I make. Specifically, I have recently been asked to explain why people die, and what happens to them once they do. In her article When Dead Bodies Talk: Colonial and Ritual Autopsies in French-Ruled Africa (1918–1945) Ruth Ginio explores the cultural underpinnings of how we approach such questions and the kinds of answers we find satisfying. Ginio begins the article with a revealing exchange in Nii Ayikwei Parkes’s 2009 novel, Tail of the Blue Bird. Parkes, a Ghanaian author, tells the story of Kayo, a young Westernized Ghanaian forensic pathologist, who is sent to a secluded village to examine an unidentified body to determine whether a murder had taken place. A local hunter by the name of Opanyin interrogates the visitor about his peculiar profession:

‘You explain deaths?’
‘Yes.’ Kayo’s tone was defiant.
‘Then, tell me, why do people die?’
‘Because they are old, or sick, or someone attacked them. I don’t know.’
‘Then you can’t explain deaths.’
‘Opanyin, that is my job. It is part of what I do.’
‘I am a hunter. I kill beasts so I can eat, but I know they don’t die because I shoot them or trap them; that is how they die but is not why they die.’ Continue reading "Why We Die: The Metaphysics of Death in French West Africa"

A Non-Frivolous Challenge to Frivolous Defenses

Thomas D. Russell, Frivolous Defenses (Aug. 17, 2020), available at SSRN.

From the mid-1980s through the turn of the twenty-first century, tort reform advocates, corporate entities, politicians, and lobbyists have raged about an alleged plague of frivolous lawsuits clogging state and federal dockets. In what perhaps might be characterized as revenge of the plaintiffs’ bar, Thomas Russell has turned the table and written the first systematic study of frivolous defenses. This provocative article, which has raised the ire of insurance defense attorneys, is worth reading as a compelling counterpoint to the frivolous lawsuit narrative.

Russell is a torts professor and plaintiffs’ attorney in Colorado. Based on his experience representing plaintiffs in auto accident litigation, Russell concluded that “Sometime after the first-year civil procedure course, insurance defense lawyers learn to ignore the rules of civil procedure when filing answers to lawsuits.” In handling client cases, insurance defense attorneys repeatedly frustrated Russell with the paucity of their responses to the averments in his complaints. Trial judges frustrated Russell by denying his motions concerning the inadequacy of defense responses.

Russell anchors his discussion in Nora Freeman Engstrom’s scholarship on “settlement mills.” He notes that Engstrom’s scholarship demonstrates how plaintiffs’ lawyers participating in settlement mills engage in routinized practices, conduct little factual investigation, and take shortcuts to achieve the quick settlement of small cases. Russell’s article crosses from the plaintiffs’ side of the docket to examine the work of insurance defense lawyers in auto accident lawsuits who respond by filing boilerplate, largely non-responsive answers to plaintiffs’ averments. As titillating as studies of plaintiffs’ lawyers may be, additional study of the plaintiffs’ side without a correlative look into defense work perpetuates a distorted view of tort litigation. His study of insurance defense practices is intended to provide this balance. Continue reading "A Non-Frivolous Challenge to Frivolous Defenses"

How to Thwart Biopiracy

Aman Gebru, Patents, Disclosure, and Biopiracy, 96 Denv. U.L. Rev. 535 (2019), available at SSRN.

A new patent application claims to have invented a process for using turmeric to “augment the healing process of chronic and acute wounds.” Unbeknownst to the patent examiner, this spice has been used for this purpose—for centuries—in India. Because the process isn’t new, it shouldn’t be patentable. But what if the patent examiner doesn’t know about that longstanding prior use?

Because traditional knowledge (TK) isn’t typically found in the sources of information that patent examiners can easily access—such as other patents or printed publications—an applicant may be able to get a patent for something they didn’t invent. Or the patent they get may cover significantly more than whatever refinements or improvements the applicant actually did invent.

Indeed, in the real-life case alluded to above, a U.S. patent did issue. When the fact that turmeric had been long used to treat wounds in India was brought to the attention of the U.S. Patent & Trademark Office (USPTO), the patent was ruled invalid. But for a time, there was a U.S. patent covering this old technology.

If we don’t want patents like this to issue, we need to get better information to U.S. patent examiners. But how can we do that? In Patents, Disclosure, and Biopiracy, Aman Gebru argues that patent applicants should be required to disclose their use of genetic resources or traditional knowledge. This article is noteworthy for its detailed examination of how such a requirement could fit into U.S. patent law, even without legislation. Also noteworthy is its use of law-and-economics arguments for this position rather than the more conventional approaches that have relied on equity and distributive justice arguments. Continue reading "How to Thwart Biopiracy"

Visibly Fragile America

Etienne C. Toussaint, Of American Fragility: Public Rituals, Human Rights, and The End of Invisible Man, 52 Colum. Hum. Rts. L. Rev. __ (forthcoming, 2021).

Focusing on Black American lives during the Covid-19 pandemic of 2020, UDC Law Professor Etienne C. Toussaint’s latest article is a tour de force, which provocatively yet persuasively argues that U.S. history, law, and society iteratively reconstitute socioeconomic inequality through “collective rituals of white supremacy that both create and reconstitute anti-Black racism and redeem white privilege.” (P. 5.) For Toussaint, the catastrophe of pandemic illuminates the fragility of U.S. democracy in two significant ways: not only has the pandemic unmasked “the adverse impact of decades of inequitable laws and public policies in low-income Black communities across the United States[,]” but it has also spotlighted “America’s racially biased, violent, and supervisory policing culture[.]” (P. 3.)

These themes are well-known to scholars of Critical Race Theory (CRT) and poverty law in the United States. Toussaint’s contribution feels exciting and noteworthy because of his skillful synthesis of multiple literatures within legal scholarship and across the disciplines, including inter alia, anthropological theory on rituals; critiques of rights-based discourse (domestic and international) for reifying abstract liberal ideologies of equality, liberty, and universalism; and an adroit evaluation of Martha Fineman’s theory of human vulnerability (and Amartya Sen’s theory of development as freedom) in light of the collective experience of Black Americans under white supremacy. Continue reading "Visibly Fragile America"

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