Yearly Archives: 2021
Jul 6, 2021 Elizabeth ChamblissLegal Profession
State supreme courts claim the exclusive, inherent authority to define and regulate the “practice of law.” Based on this authority, courts have enjoined as the unauthorized practice of law (UPL) all manner of potentially helpful legal assistance by nonlawyers, including counseling, advising, and assistance with documents, as well as representation in court. When it suits them, however, it turns out that trial courts accept extensive nonlawyer assistance behind the scenes, including nonlawyer counseling of clients, preparation of pleadings, and discrete courtside assistance. Courts may even encourage and institutionalize the role of nonlawyer advocates through designated workspace and workflows. But they like to keep it on the down low.
Of course, it is not the “unauthorized” practice of law if courts allow it. And courts’ claims to regulatory authority are strongest regarding who appears before them. But what are the implications of an unacknowledged nonlawyer assistance regime? This is the question posed by Jessica Steinberg and her comadres in their study of domestic violence courts’ “quiet partnership” with a “shadow network” of nonlawyer advocates “to substitute for the role counsel has traditionally played.” (P. 1316.) Continue reading "PL on the DL: Domestic Violence Courts’ “Quiet Partnership” with Nonlawyer Advocates"
Jul 5, 2021 Allison MadarLegal History
In Race, Slavery, and the Problem of Numbers in Early New England: A View from Probate Court, Gloria McCahon Whiting makes significant contributions to the study of slavery in seventeenth- and eighteenth-century New England. She offers new insights into who made up that labor force, as well as into scholarly debates regarding the utility of quantitative analysis for historians of slavery.
Whiting examines volumes upon volumes of seventeenth- and eighteenth-century probate sources to better understand who lived and labored in Suffolk County, Massachusetts. In this, “the wealthiest and most populous county in New England,” Whiting argues that not only were indentured servants “supplanted early on by a near-complete reliance on African slavery,” but also that local Native populations “never provided a significant source of bound labor in the area.” (P. 407.) The first part of her argument is not one with which most scholars would take issue. Her assertion that local Native populations never made up a significant proportion of the enslaved labor force in the region, however, is more surprising. This argument challenges the scholarship of historians such as Margaret Newell, Wendy Warren, Jared Hardesty, and Linford Fisher, who have argued that large numbers of enslaved Natives played an important role in New England’s labor force well into the eighteenth century. Continue reading "The ‘Problem’ of Numbers"
Jul 2, 2021 Margo BagleyIntellectual Property Law
Sean Seymore,
Unclean Patents, 102
B.U. L. Rev. __ (forthcoming, 2022), available at
SSRN.
The 2018 Federal Circuit Gilead Sciences v. Merck & Co. decision is one of the rare patent cases in which a court has applied the unclean hands doctrine to withhold a remedy for infringement. Sean Seymore used this case as a launching point for a deeper and more expansive reconception of the role of the unclean hands doctrine in patent law. He suggests that a range of pre-issuance malfeasance by the patentee, not just inequitable conduct before the USPTO, should preclude relief for the offending plaintiff against all defendants.
The doctrine of unclean hands is best known in patent law as the origin of the inequitable conduct defense, which renders patents obtained from the USPTO through materially deceptive behavior permanently unenforceable against anyone. Unclean hands, however, is both broader and narrower than inequitable conduct. It is not limited to misconduct in patent prosecution, but it only prevents the patentee from enforcing the patent against the particular defendant in the action involving the misconduct; other defendants are fair game. Continue reading "Dirty Hands, Dead Patent?"
Jul 1, 2021 Kevin CopeInternational & Comparative Law
T. Alexander Aleinikoff and Leah Zamore’s compact-but-ambitious new book, The Arc of Protection: Toward a New International Refugee Regime, seeks to transform the international refugee system by proposing a set of legal reforms centered on redistributing responsibility northward, increasing mobility, and better enforcing rights. The authors’ reform vision was developed through decades of research and practice experience.
The legal-political discourse on refugees in the United States focuses largely on disputes over quantities and definitions. How many refugees should be admitted each year: 50,000, 125,000, or (as in fiscal year 2018) 62? Should gang- and domestic-violence be considered persecution and thus valid grounds for asylum? The ways in which these issues are resolved can mean life or death for many displaced people. But even granting all of the reforms that domestic refugee advocates seek would protect only a small fraction of the world’s forcibly displaced. The great majority of the approximately 27 million refugees would still be trapped in poverty in the Global South – effectively confined to underfunded border camps or to urban areas – in either case, largely blocked from the formal economy and from effective redress of rights violations. Continue reading "Rethinking Responsibility for Refugees"
Jun 30, 2021 Mary CrossleyHealth Law
Wendy Netter Epstein,
A Legal Paradigm for the Health Inequity Crisis (Feb. 17, 2021), available on
SSRN.
“It Shouldn’t Take a Pandemic,” read the title of an essay published several months into the COVID-19 pandemic. The bioethicist authors argued that, by focusing on moral issues relating to patient care, bioethics had “gone too small” and should be paying more attention to broader moral issues of injustice. Of course, anyone paying the slightest attention to the news over the past fifteen months has witnessed to how the pandemic has laid bare the greater suffering and death endured by people who are Black, Brown, Indigenous, poor, or disabled. The essayists point out that the inequity of poorer health and unevenly borne suffering is not new. Avoidable, and thus unjust, disparities in health, health care, and social determinants of health have been part of the health landscape in the U.S. seemingly forever, and efforts over the past decades have largely failed to dent them. Wendy Netter Epstein’s new article, A Legal Paradigm for the Health Inequity Crisis, argues that governance challenges offer one explanation for the lack of meaningful progress and suggests an approach to addressing those challenges. And she turns to an improbable chapter in health law’s history for her model: HIPAA Administrative Simplification.
By squarely focusing on how challenges in addressing health inequity are partly a governance problem, Epstein’s article makes a valuable contribution. It helps explain why health inequity has proven so intractable—it is embedded in a fragmented system where no single actor has “both adequate incentive and adequate wherewithal to create progress.” Problems of churn among various payers, the compartmentalization of government actors, and siloed funding for health and other issues are all part of this fragmentation. Currently, nothing supports, much less compels, these fragmented entities to undertake collective planning and action in pursuit of health equity. Continue reading "Health Equity Governance"
Jun 29, 2021 Albertina AntogniniFamily Law
The Nineteenth Amendment promised to transform the Constitution as it did the content of equal citizenship. It has, however, done neither. Instead, as Reva Siegel explains in The Nineteenth Amendment and the Democratization of the Family, we narrowly understand “the Nineteenth Amendment as a rule prohibiting government from discriminating on the basis of sex in determining who can vote.” (P. 451.) This, Siegel compellingly argues, is an impoverishment of what the Nineteenth Amendment was meant to accomplish, and a depletion in how we define equality. The Nineteenth Amendment wrought change to the Constitution “not simply by adding voters, but by democratizing the family so that women could represent themselves in government.” (P. 451.) The quest for the vote, according to Siegel, was fundamentally a quest to restructure women’s role within the family.
It may come as no surprise that women’s participation in the polity – by eliminating the concept of virtual representation by the husband and head of the household – directly challenged traditional family roles. But lost to history is how the right to vote further implicated structural questions about voluntary motherhood, equal remuneration, and the valuation of work performed both within and outside of the household. We no longer recognize access to contraceptives, or joint property in marriage, as essential to the franchise. Nor do we incorporate the family into the constitutional framework of the Nineteenth Amendment. As such, “the history this Essay explores,” Siegel writes, “has played little role in shaping our law.” (P. 454.) Siegel addresses this erasure by reconstructing the debate over equal citizenship that the suffrage campaign began and examining the various ways recovering this forgotten history can impact our interpretation of the Constitution. In revealing exactly how the Nineteenth Amendment failed to resolve the problem of women’s access to full citizenship, Siegel shows us that it still could. Continue reading "Bringing the Nineteenth Amendment Home"
Jun 28, 2021 Doron DorfmanEquality
Recently, researchers and advocates have brought to light the extra financial costs of living with disabilities, or as some have called it the “crip tax.” They showcase the expenditures disabled people make because they have a disability, which are usually invested in necessities such as assistive technology, household accessibility renovation, service animal maintenance, or the purchase of special food due to dietary restrictions. These expenses are particularly onerous as this population has historically faced major barriers to entering and staying in the workforce, in addition to earning lower wages on average compared to their non-disabled peers.
In her excellent new article, Disability Admin: The Invisible Costs of Being Disabled, Liz Emens makes an important contribution to this discourse about the “taxes” imposed on individuals with disabilities. Emens exposes and conceptualizes other significant, yet non-financial, costs imposed on individuals with disabilities as they move through the non-disabled world. These costs are borne out of the incredible amount of time and mental energy people with disabilities exert on a daily basis while engaging with mundane tasks (like repeatedly explaining their needs to strangers, filling endless amount of forms, or constantly rearranging their routes so that they would be accessible), red tape, and the advocacy needed to exercise their rights. This is a type of labor which Emens calls “disability admin,” and is an extension of her work on “life admin.” Continue reading "The Everyday Struggles of Disability Law"
Jun 27, 2021 JotwellJotwell
Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.
For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from Jotwell or from any Jotwell section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.
The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.
Jun 27, 2021 JotwellTorts
Continue reading "Update of Jotwell Mailing Lists"Jun 27, 2021 JotwellEquality
Continue reading "Update of Jotwell Mailing Lists"
