Monthly Archives: July 2021

Urban Constitutionalism

Ran Hirschl’s City, State: Constitutionalism and the Megacity (hereafter, City, State) addresses a significant gap in the constitutional law literature. Cities are economically, politically and culturally important and their importance will only grow. (P. 8.) Yet, Hirschl argues, constitutional theory and practice have not kept pace. Constitutional law scholarship does not have the “conceptual language and constitutional categories” (P. 10.) to account for the rise of cities. And constitutional orders typically assign cities a subordinate status, “as ‘creatures of the state’, fully submerged within the Westphalian constitutional framework, and assigned limited administrative local governance authority.” (P. 10.) City, State diagnoses this neglect and offers proposals for how constitutional orders can address it.

The Introduction sets the stage for the arguments that follow. Hirschl describes the rise of cities and the policy challenges posed by this rise. Among the most striking trends he identifies is the change in percentage of the world’s population who live in cities: “In 1800, 3% of the world’s population lived in cities. In 1950, less than 30% did; by 1990 43% of us were city dwellers. By 2019, this proportion has grown to 56%.” (P. 1.) Seventy percent of the world’s population is projected to live in cities by 2050. (P. 2.) These raw numbers tell only part of the story. The distribution of growth is uneven: “about 9 of every 10 urban dwellers since 1960 reside in Asia, Africa or Latin America.” (P. 4.) The rise of megacities—defined variously as cities with more than 5 or 10 million—has been similarly vertiginous. In 1950 New York was the only city in the world with a population of 1 million. By 2018, 33 cities had populations of at least 10 million. And studies predict that there will be cities with populations of 50–100 million in the next century. (P. 6–7.) These demographic changes create policy challenges. In today’s cities, poverty is concentrated and extreme, public health is threatened, and the environment degraded. (P. 5.) Hirschl further identifies problems that flow from cities’ “constitutional non-status,” including deficits in democratic representation and an absence of jurisdictional autonomy. (P. 9.) Continue reading "Urban Constitutionalism"

Profiting Off Infringement

Kristelia Garcia, Monetizing Infringement, 54 U.C. Davis L. Rev. 265 (2020).

It’s hard to imagine people tolerating intentional violations of their physical autonomy, never mind seeking to monetize such behaviors. But as Kristelia García argues in her new essay, Monetizing Infringement, many copyright owners find this strategy appealing.

According to copyright’s standard narrative, infringement reduces the returns to creative effort and, thus, undermines authors’ incentives to produce new works. Here, however, García “destabilizes long-held but problematic assumptions about the interplay between copyright law’s purported goals and its treatment of infringement by challenging the received wisdom that rightsholders are necessarily anti-infringement.” (P. 270.)

Building on work by Tim Wu, Dave Fagundes, and Rebecca Tushnet, among others, García catalogues three distinct forms of monetizing copyright infringement across a variety of creative domains: (1) profitable infringement, in which infringement results in income for the rightsholder; (2) remedial infringement, in which infringement mitigates a worse outcome for the rightsholder; and (3) promotional infringement, in which infringement amounts to valuable and cost-efficient promotion for the rightsholder’s content. Continue reading "Profiting Off Infringement"

Stopping the Sale of Cigarettes

Micah Berman, Tobacco Litigation, E-Cigarettes, and the Cigarette Endgame, 13 Ne. U. L. Rev. 219 (2021).

If tort litigation could help drive asbestos and other dangerous products from the market, might it also do so for cigarettes? For several decades, that has been the hope of scholars such as Richard Daynard and other advocates. In Tobacco Litigation, E-Cigarettes, and the Cigarette Endgame, Micah Berman provides a blueprint for the elimination of cigarette sales in the United States.

As Berman observes, “under general principles of tort law, if a less harmful ‘reasonable alternative design’ of a product is available, then the more harmful version is deemed to be defectively designed and cannot be sold without liability for the harm it causes.” E-cigarettes would seem to be a less harmful, reasonable alternative design to traditional cigarettes. Continue reading "Stopping the Sale of Cigarettes"

Toiling–and Not Toiling: Law, Gender, Class, and Unemployment

In the early days of the pandemic, the unemployment rate reached close to 15% , and the number of families that had at least one unemployed person doubled, to almost 10%. Those unemployment rates vary by race and gender: Black and Hispanic families were more likely to have one unemployed person than white or Asian families, and, several months into the pandemic, the US Census reported that women were more than twice as likely as men not to be working because of child care issues.

These statistics suggest profound impacts on the family. Enter sociologist Sarah Damaske’s new book, The Tolls of Uncertainty: How Privilege and the Guilt Gap Shape Unemployment in America (2021). The Tolls of Uncertainty explores the intersections between unemployment and family obligation through interviews with 100 people in urban and rural Pennsylvania. Damaske debunks various myths about the unemployed, such as that they are lazy or clearly differ from the employed, and shows that although men may face expectations to be the breadwinners, ”women appear to bear much higher levels of guilt and shame for losing their jobs.” (P. 14.) And the book proposes policies that support not just the unemployed but also their families. Continue reading "Toiling–and Not Toiling: Law, Gender, Class, and Unemployment"

Asking the Right Questions about Police—and Scholarly—Expertise

Anna Lvovsky, Rethinking Police Expertise, 131 Yale LJ. __ (forthcoming 2021), available at SSRN.

Recently, an outstanding anonymized article and exemplar of a law journal student editor’s peer review request landed in my inbox. This reflection covers both the article and the peer review request from the Yale Law Journal because they capture salutary trends in legal scholarship. The article is Police Expertise, which I learned only after submitting my peer review, is by Professor Anna Lvovsky. It tackles an important issue for practice as well as criminal procedure scholarship—deference to asserted police expertise. The peer review request asked astute questions, three of which should be asked more often for such scholarship: (1) whether the author’s account accurately tracks actual practice on the ground, (2) whether the key theoretical labels and distinctions make coherent useful sense, and (3) whether the theorizing is likely to have ramifications in practice, not just scholarship.1

In this time of an acute crisis of trust in law enforcement, the topic of expertise is important—and apparently hot. Within about a week, I received peer review requests from two different leading journals with two different anonymized articles about the issue. The timing was fortuitous—it was about the time I had to select excellent scholarship to feature for this Jot. Professor Lvovsky’s article illuminates this issue, which has sparked debates in scholarship and practice, from a fresh perspective, and with outstanding research that goes well beyond easily accessible, published sources. Lvovsky’s Police Expertise, now forthcoming in the Yale Law Journal, examines the seemingly counterintuitive emphasis on police expertise by the defense rather than the prosecution, and to attack rather than to seek judicial deference to police claims. Continue reading "Asking the Right Questions about Police—and Scholarly—Expertise"

Corporate Social Measures

  • Paul Brest & Colleen Honigsberg, Measuring Corporate Virtue—And Vice, in Frontiers in Social Innovation (Neil Malhotra ed., forthcoming 2021), available at SSRN.
  • Veronica Root Martinez & Gina-Gail S. Fletcher, Equality Metrics, 130 Yale L.J. Forum 869 (2021).

Many of today’s investors are not just seeking positive financial returns. They are also seeking positive social impact. Not surprisingly, businesses and entrepreneurs have responded in kind with numerous investment offerings, corporate initiatives, and business ventures to promote social benefit. This shift in capital markets and corporate governance is perhaps most reflected in the incredible growth of environmental, social, and governance (ESG) investments and the increasing activism of America’s largest companies on some of the most pressing social issues of our time.

This shift away from pure profit-seeking towards profit-seeking plus social impact has been the subject of much debate. Less debatable is the sustained and significant nature of this sea change. One critical question that arises in the discussions surrounding this development is how best to compare and measure the efficacy of corporate actions for the betterment of society.

Two engaging, recent articles offer sensible approaches to addressing this critical question. The first article, Measuring Corporate Virtue—and Vice by Professors Paul Brest and Colleen Honigsberg presents a comprehensive general construct for benchmarking ESG performance. The second article, Equality Metrics by Professors Veronica Root Martinez and Gina-Gail S. Fletcher provides a more targeted proposal to address the specific problem of racial inequity in businesses. Each of these articles is distinct in their subject and scope of focus, but both fundamentally share the belief that business can play an important and more effective role in addressing certain social challenges. Continue reading "Corporate Social Measures"

A Rule Against Fun

Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at SSRN.

In recent months, federal judicial opinions have criticized “schlocky Star Wars sequels” or called circuit case law “a hot mess.”  They have fondly recalled “[w]hen painter-turned-inventor Samuel Morse sent the first telegraph message” or sarcastically used expressions like “presto!” or “voila.” And they have sustained decades-long criminal sentences by writing: “tl;dr . . . . we affirm the whole kit and caboodle.” In different ways, these opinions are having a bit of fun. And what could be wrong with that?

Quite a lot, argues Nina Varsava in a bracing and timely paper on judicial rhetoric. The piece takes aim at opinions that are literary, witty, or entertaining—precisely the traits that, she argues, are often held in high regard. Part of Varsava’s argument overlaps with familiar debates about legal narrative and storytelling, but she goes in unexpected directions. Continue reading "A Rule Against Fun"

Black Lines of Credit Matter

Mehrsa Baradaran, Jim Crow Credit, 9 UC Irvine L. Rev. 887 (2019).

Mehrsa Baradaran makes an outstanding contribution to the literature on de jure, systemic racial bias and lays a foundation for reparations in the context of consumer credit in Jim Crow Credit. Drawing from and building on her two Harvard U. Press books, How the Other Half Banks (2018) and The Color of Money (2017), Baradaran documents the systematic subsidization of white borrowers–and thus the creation of the white, suburban middle class–in the New Deal and subsequent 20th century government programs that brought us today’s home mortgages, credit cards, and predatory lending practices such as payday lending. Bottom line up front: in credit as elsewhere the haves come out ahead. The surprise is how the federal government subsidized this enormous giveaway to create a white, suburban middle class at the expense of urban and African-American communities.

In bumper sticker form, Baradaran’s message is that Black lines of credit matter. Just as driving or jogging while Black too often proves fatal, borrowing while Black harms Black lives by imposing financial and other injuries that white borrowers are much less likely to suffer. Perhaps most galling–and akin to criminal defendants funding mass incarceration through fees and fines–is that African Americans taxpayers helped fund the U.S subsidies to white borrowers via mortgages and later, credit cards. The compound interest resulting from those subsidies explains a good amount of today’s income inequality: whites enjoy 10 times the wealth of African-Americans, and measured in quasi-liquid assets like retirement accounts, that inequity jumps to a jaw-dropping 100 times more wealth.1 Continue reading "Black Lines of Credit Matter"

The Excluded Muddle

David E. Pozen & Adam M. Samaha, Anti-Modalities, 119 Mich. L. Rev. 729 (2021).

A specter is haunting modern American legal scholarship—the specter of branding.

Whether it is a marketplace of ideas or just a marketplace, legal scholarship today overflows with neologisms, “I call this”-es, and other efforts to hawk our wares to law review editors and, perhaps, other scholars.1 Useful at times, branding is often unnecessary or silly. It routinely announces a purportedly un-noticed phenomenon that in reality fills whole library shelves. (One awaits with resignation the inevitable article proclaiming, “I call this activity, in which two parties reach a binding and often memorialized exchange of promises, agreementification. It urgently deserves closer study.”) Given the frequency with which legal scholars treat as “new” arguments or observations that were old before they were born but lie outside Westlaw’s reach, branding often involves neither new wine nor new bottles, but old wine in old bottles with a new label slapped on. It is bad enough if these efforts are cynical, worse if they are not, and perhaps worse still when they are a bit of both. We might call this the Late Capitalism-ization of legal scholarship.

With that cheerful preface, it is a pleasure to see a new label2 that actually performs a useful service, spotlighting something we might otherwise neglect. It is doubly pleasing because the article neither celebrates nor condemns what it labels. It walks us through the phenomenon with a proper sense of its nuances and its costs and benefits. Written by David Pozen and Adam Samaha, Anti-Modalities exemplifies the difference between a meaningful scholarly label and a mere marketing gambit. Continue reading "The Excluded Muddle"

Our Joy: An Inclusive Right of Enjoyment in Property and Contract Law

Nancy Leong, Enjoyed by White Citizens, 108 Geo. L. J. __ (forthcoming, 2021), available at SSRN. 

I recall being confused by how the average 1L Property course treated the “important” property provisions. I was struck that we spent all of our time on the 5th Amendment clause that required compensation by the government for the “taking” of private property by the government. But we did not cover the 13th Amendment, which eliminated slavery, thus impacting the property rights of (predominately) white citizens.

Why were we not talking about the 13th Amendment and the supporting legislation, §1981 and §1982 of the Civil Rights Act of 1866, which granted property rights to freed blacks? What did it mean in these statutes that all persons should have the “same right” of property as that “enjoyed by white citizens”?

Nancy Leong’s Enjoyed by White Citizens seeks to solve that mystery. In the process, she helps us better understand the meaning of property rights as a general matter and illuminates the role of property rights rhetoric in struggles for civil rights and against privileged caste status. Continue reading "Our Joy: An Inclusive Right of Enjoyment in Property and Contract Law"

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