Monthly Archives: May 2021

There Is No International Legal Order Beyond Capitalism

Ntina Tzouvala, Capitalism as Civilisation (2020).

In recent decades, a new wave of critical literature highlighted how the concept of “civilization” emerged in the 19thcentury as a rubric to judge countries as worthy (or not) of admission to the European order of international law. Today this scholarship is commonly referred to as the “historical turn” in international legal scholarship. Much of this literature explored the problematic racialized origins of the term “civilized,” as well as its persistent impact on international law today. In this context, Ntina Tzouvala’s Capitalism as Civilisation presents a next-generation interpretation of the legacy of “civilization” of international law today.

Tzouvala’s book is ambitious on a number of fronts. She approaches “civilization” not as a singular term but as an argumentative pattern driven by an oscillation between what she calls the “logic of improvement” and the “logic of biology.” “Improvement” here refers to international law’s embrace of progressive universalism, and “biology” refers to assertions of immutable cultural difference. While these ideas are seemingly at odds, Tzouvala emphasizes how these dual logics exist in productive tension. Together, they kept those once deemed “uncivilized” as perpetual objects of needed reform and irresolvable incompatibility.

But Capitalism as Civilisation is even more ambitious than simply providing this new framing of the now well-established “historical turn.” The book can be read as a generational statement about what critical scholarship on international law should and can be. Within a single volume it attempts to provide a convincing synthesis of core tensions in the field, if not in critical scholarship more generally. With care and confidence, Tzouvala’s aims to integrate material analysis into the predominately discursive and deconstructive focus of her critical predecessors on the indeterminacy of international law. Continue reading "There Is No International Legal Order Beyond Capitalism"

Understanding Bentham’s Theories of Meaning and Publicity

Professor Gerald Postema’s new book, Utility, Publicity and Rights, offers a brilliant set of essays on Jeremy Bentham’s jurisprudence, complementing his previous works. In Jeremy Bentham and the Common Law Tradition, Postema departed from received interpretations that misread Bentham in two ways: first, decoupling Bentham’s normative moral and political theory from his jurisprudence and failing to explain the foundational role of utility in his account of the nature of law; second, underestimating the impact of Bentham’s legal positivism in practical reasoning and adjudication.1

Like his previous work, Postema’s new book is a major contribution to the pursuit of integrity in Bentham’s jurisprudence. One of its merits is that it not only builds on the principle of utility but also unpacks two less known while no less foundational doctrines in Bentham’s philosophical system: his theory of meaning and his psychological theory.2 The book is divided in two parts. The first focuses on Bentham’s basic philosophical commitments. Chapter 1 introduces his account of language, epistemology, and ontology, offering a quasi-pragmatist interpretation of his theory of meaning. Chapter 2 turns to Bentham’s psychological theory to single out the self-regarding interests and social motives that can play a role in one’s individual and social life. The rest of the first part discusses Bentham’s utilitarian theory of value, with special reference to his expressivist meta-ethics (chapter 3), his theory of publicity (chapter 4), his account of equality (chapter 5), and the role of universal interests in Bentham’s moral and political theory (chapter 6). Postema describes these elements as integral parts of the meaning of utility, which play a foundational role in understanding the specific topics of the second part. Continue reading "Understanding Bentham’s Theories of Meaning and Publicity"

The Quotidian and Constitutive Practice of Police Brutality Against Indigenous People

In Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine Sherene Razack gives voice to the settler colonial violence perpetrated against Loreal Tsingine, a 27-year-old Navajo women who was shot and killed by Austin Shipley. Shipley, a white male police officer, claimed he was trying to apprehend her for alleged shoplifting. The article, which is brilliantly and compellingly written (as is typical of all of Professor Razack’s work) makes several claims. Most centrally, however, she asserts that racial terror – a violence done at both structural and individual levels – is at the very heart of the settler colonial project. In the North American context, the aim of the settler colonial project is the erasure, or in Razack’s words the annihilation, of Indigenous peoples in the interests of white settlement and prosperity. It is a state sponsored and centuries-old endeavour manifested through, for example, land and resource dispossession, cultural genocide, legal discrimination, the carceral state, and the destruction of the social, physical and political infrastructures that serve Indigenous peoples health and safety. Razack begins her analysis by reminding us that settler colonialism is an ongoing project, one that requires the continual imposition of racial terror.

Racial terror, Razack explains, maintains white supremacy and protects white entitlement, but also reassures today’s white settler subject that the imagined threat of racial otherness is contained. Settler colonialism is premised on the extraction not only of resources and lands but also through “everyday extractive relationships” that consolidate white superiority, among other things, by violating and annihilating Indigenous bodies. (P. 2.) Through a detailed excavation of the psychic underpinnings of the settler state, Razack reveals the way in which white identity is constituted through the continual reification of Indigenous peoples as a threat to ‘the community’. She writes, “[p]olice shootings of Indigenous people and the legal response to police use of force (along with everyday settler violence) are a part of the racial terror that is a central part of settler colonialism.” (P. 1.) Continue reading "The Quotidian and Constitutive Practice of Police Brutality Against Indigenous People"

Pizza, Pasta, and Gelato: The Legal Construction of “Made in Italy”

  • Jorge L. Esquirol, Credit Supports for Italian Specialty Products: The Case of Prosciutto and Long-Aged Cheese, 14 FIU L. Rev. 589 (2021).
  • Tomaso Ferrando, Gangmastering Passata: Multi-Territoriality of the Food System and the Legal Construction of Cheap Labor Behind the Globalized Italian Tomato, 14 FIU L. Rev. 521 (2021).
  • Helena Alviar García, Italian Coffee: Retelling the Story, 14 FIU L. Rev. 443 (2021).
  • Michele Graziadei, The Making of an Iconic Cheese: Mozzarella Di Bufala Campana D.O.P., 14 FIU L. Rev. 615 (2021).
  • Fernanda G. Nicola & Gino Scaccia, It’s All About the Pasta: Protectionism, Liberalization, and the Challenge for Quality and Sustainability of Made in Italy, 14 FIU L. Rev. 479 (2021).

In 2020, Jorge Esquirol organized a magnifico symposium, “Made in Italy: The Law of Food, Wine and Design,” dissecting the laws that support the “Made in Italy” branding for the country’s most valued and globally exported products: espresso, mozzarella, olive oil, Parmigiano, pasta, prosciutto, tomatoes, wine, as well as design and fashion. This jot focuses on food.

Was your mouth watering just reading this list? Perusing the volume will both deepen and question your appreciation for Italian foods. You will learn fascinating facts about their histories, cultural valence, production conditions, consumption patterns, and regulation. All humans eat and most participate in the global trade of food, yet foodways (eating and culinary practices) continue to be tied to personal, cultural, and national identities. The collection of articles contributes to the burgeoning scholarship on international and comparative food law. Jotwell does not usually publish reviews of symposia, but this compendium is most powerful when taken in its entirety.  It is not any individual story of food, but it is the collection that is remarkable. Read as products of law, these foodstuffs raise deep and troubling issues of imperialism, unequal trade between North and South, labor exploitation, animal abuse, and environmental degradation. Continue reading "Pizza, Pasta, and Gelato: The Legal Construction of “Made in Italy”"

The Roads Not Taken in the Forest of Family Trees

In Queering Family Trees, Sandra Patton-Imani explores parenthood at the intersection of race, class, and sexual orientation during the period from the 1990s until the Supreme Court’s landmark decision in Obergefell v. Hodges.1 This short period of time witnessed dramatic shifts regarding same-sex relationship recognition and adoption at the local, state, and federal levels, culminating in the legalization of same-sex marriage. In Patton-Imani’s exploration, same-sex marriage is only one fragment of the larger story of family policy, which involves welfare, immigration, and adoption policies.

Patton-Imani’s historical exploration is unique in that it is built on over one hundred ethnographic interviews with African American, Latina, Native American, Asian American, and white lesbian mothers living in different states, in a range of socioeconomic circumstances, all of whom were in the process of building their families during this time period. Through these women’s narratives, we learn of the varied ways through which they formed their families, faced their daily challenges, and struggled to protect their family relationships and to gain benefits and rights that heteronormative families routinely enjoy. Continue reading "The Roads Not Taken in the Forest of Family Trees"

Fourth Amendment Subjectivity and Its Undetermined Utility

Orin S. Kerr, The Questionable Objectivity of Fourth Amendment Law, 99 Tex. L. Rev. 447 (2021).

The Supreme Court stresses that the tests governing the Fourth Amendment are objective ones, looking to what reasonable officers would do and eschewing examination of the actual officers’ subjective mental states. The Court has stated that this is because the law is not concerned with the officer’s “state of mind, but the objective effect of his actions.”1 In this characteristically incisive article, Professor Orin Kerr provides good reason to doubt the Court’s rhetoric. Kerr shows that the Court regularly looks to the subjective states of government officials in deciding the propriety of law enforcement conduct. Such subjective tests pepper the Fourth Amendment jurisprudence, regarding searches, seizures, their reasonableness, and their constitutional remedies.

That’s not always a bad thing, according to Kerr. Nor is it always a good thing. Subjective tests can help us create narrow, more tailored rules that serve law enforcement benefits and protect our civil liberties. But that’s highly dependent on their reliability; indeed, when we can’t accurately determine officials’ mental states, these tests are manipulable and can do serious harm. Figuring out when they work is a tough task, but Kerr provides us with useful guidance. Continue reading "Fourth Amendment Subjectivity and Its Undetermined Utility"

Why Shareholder Primacy Persists

Dorothy Lund & Elizabeth Pollman, The Corporate Governance Machine, 122 Colum. L. Rev. (forthcoming, 2021), available at SSRN.

Indictments of shareholder primacy have grown increasingly common. Confronted with the pressing challenges of climate change, structural racism, and the spread of disinformation, legal scholars are revisiting the timeworn question of the purpose of a corporation and its standard answer: to maximize shareholder wealth. For the most part, this discussion has rigidly centered on the role of corporate law. Do cases like Dodge v. Ford and eBay v. Newmark require corporations to have a shareholder-oriented purpose? Is shareholderism the inevitable consequence of laws that place the power to elect corporate directors in the hands of shareholders alone?

Dorothy Lund and Elizabeth Pollman’s thought-provoking new article, The Corporate Governance Machine,1 reminds us however that shareholder primacy is actually the product of a complex system, of which the law is just one component. The “corporate governance machine,” as they define it, is the “governance system in the United States composed of law, markets, and culture that orients corporate decision-making toward shareholders.” Lund and Pollman argue that law may in fact “be the least important” force propelling this machine in its current direction. Market players, such as proxy advisors, stock exchanges, and ratings agencies, as well as entities that propagate cultural norms, such as professional education and media institutions, bear substantial responsibility for amplifying and reinforcing shareholder primacy. Continue reading "Why Shareholder Primacy Persists"

Procedural Evolution in Multidistrict Litigation

Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. __ (forthcoming, 2021), available at SSRN.

Modern litigation often operates at a larger scale than rulemakers envisioned when the Federal Rules of Civil Procedure (FRCP) debuted in 1938. The FRCP’s architects recognized that aggregation would pose challenges. But they could not foresee the specific adjustments that would be necessary to process novel claim clusters catalyzed by advances in technology, market organization, and substantive law. Amendments to the FRCP and the promulgation of nonbinding guidelines—including by the Federal Judicial Center, American Law Institute, and Bolch Judicial Institute—have addressed the expanding scale of litigation. But aggregate litigation evolves faster than rules and best practices manuals can adapt. When the litigation frontier moves beyond the shadow of existing guidance, emergent procedures can seem unsettling and unjustified. Yet these procedures shape outcomes in cases implicating significant public policy interests.

This high-stakes gap between procedural design and procedural reality is the focus of Abbe Gluck and Elizabeth Chamblee Burch’s forthcoming article on multidistrict litigation (MDL). Their key insight is that a body of “MDL common law” has developed from the accretion of procedural innovations in large-scale cases. Each new MDL shares features with prior MDLs while adding novel quirks. The shared features enable judges to borrow procedures from prior MDLs, while the quirks generate new procedures that become precedent for future MDLs. Over time, judicial responses to quirks replicate and ossify into common law, such that “the exception becomes the norm.”

Many ordinary MDL procedures are unusual in traditional litigation. Gluck and Burch cite numerous examples of how MDL exceptionalism circumvents traditional constraints on judicial discretion, including transsubstantivity, litigant consent, choice of law rules, and respect for parallel state litigation. Collectively, these exceptions foster what the authors call “the MDL Paradox.” The paradox arises because the statutory framework detailing how MDLs should operate is inconsistent with the common law framework governing how they actually operate. In theory, MDLs provide an alternative to class actions that preserves the “individual” character of each constituent case. But in practice, MDLs replicate the “centralized” approach of class litigation without the attendant safeguards. Continue reading "Procedural Evolution in Multidistrict Litigation"

Contract Law v. Tort Law

Zahra Takhshid, Assumption of Risk in Consumer Contracts and the Distraction of Unconscionability, 42 Cardozo L. Rev. __ (forthcoming, 2021), available at SSRN.

It has been a while since many of us have been able to attend the gym. Yet, before Covid-19, those committed to working out in this setting were kindly asked (read: required) to sign a contract that released the business operating the fitness facility from liability for any injury that might occur while using the premises. Accordingly, if an injury happened due to the business’ negligence, its defense against tort-based liability was contractual: it relied on the exculpatory clause that the user signed before the user was hurt. If the user took legal action, courts faced a Hamlet-style dilemma: to enforce or not to enforce the contract that was designed to prevent the operation of tort law. On the one hand, as we all know and as Danielle Hart has empirically shown, courts are heavily inclined to enforce contracts. On the other, at stake are bodily injuries that the business could have probably prevented if only it had exercised more caution.

In her forthcoming article, Assumption of Risk in Consumer Contracts and the Distraction of Unconscionability, Zahra Takhshid importantly focuses on this tension between contract law and tort law and pays particular attention to recreational activities in the commercial sphere that have resulted in bodily injuries. She opens with the unfortunate story of Gina Stelluti, a woman who suffered long-term injuries because an instructor of a spinning class she took for the first time neglected to secure her bicycle’s handlebars. The New Jersey Supreme Court upheld an exculpatory clause signed by Stelluti in which she released the gym from liability for negligence. This court clarified that only gross negligence—as opposed to the gym’s ordinary negligence—might have justified invalidating the exculpatory clause. For Stelluti, that meant no compensation. Continue reading "Contract Law v. Tort Law"

Third Party Standing Is Not for Sissies

Curtis Bradley & Ernest Young, Unpacking Third Party Standing, __ Yale L. J. __ (forthcoming), available at SSRN.

Justice Scalia once famously said: “Administrative Law is not for sissies.” His colorful rhetoric undoubtedly was based on the combination of opacity, complexity, ambiguity, and internal inconsistency that characterizes the field of administrative law. The law governing third party standing has similar characteristics. Curtis Bradley and Ernest Young do an excellent job of “unpacking” third party standing in Unpacking Third Party Standing, but it too would not be a good candidate for casual reading by “sissies.” I have read it twice now, and I am far short of having a complete understanding of the intricate analysis in the article. The quality of the analysis is so good, however, that I plan to read it several more times.

The article is extremely ambitious. It is an attempt to “unpack” and explain a doctrine that many fine scholars have been unable to explain in a coherent manner. The reasoning the Supreme Court has used when it has addressed the doctrine is often inconsistent, unhelpful, and incomplete. The authors attribute the failure of the Court and scholars to describe and explain the doctrine in a coherent manner to their attempt to describe it as a single doctrine. Continue reading "Third Party Standing Is Not for Sissies"

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