Yearly Archives: 2021
Feb 8, 2021 Amy SalyzynLegal Profession
Lawyers need to be competent. No one would disagree with this simple fact. More contentious is the question of how to ensure that lawyers are, in fact, competent. On the pre-entry side of things, controversies have frequently erupted over law school curricula and bar exams. In the area of post-entry competence, recent years have seen lively discussions about how best to measure and ensure good lawyering. Within this dynamic context, Pooja Parmar’s recent article Reconciliation and Ethical Lawyering: Some Thoughts on Cultural Competence is an important contribution to the growing scholarly literature on what it means to be a competent lawyer in the 21st century.
The focus of Parmar’s article is the Canadian legal profession’s response to the Calls to Action by the Truth and Reconciliation Commission of Canada (“TRC”). More specifically, Parmar focuses on the “particularly noticeable” attention given “to cultural competence or skills generally associated with the idea.” (P. 532.) For example, in response to the TRC Calls to Action, the Law Society of Alberta and the Law Society of British Columbia have both now instituted mandatory Indigenous cultural competence training for all lawyers. Continue reading "Reconciliation and the Limits of Cultural Competence"
Feb 5, 2021 Kunal ParkerLegal History
Henry M. Cowles has written an absolutely brilliant book that traces the history of the idea of “the scientific method” from Darwin to Dewey. Although Cowles’ intended audience is historians of science, the book has important and tantalizing implications for those interested more generally in the twentieth-century modernist turn to method, process, procedure, and technique. This is a turn that American legal historians will recognize in the massive emphasis on procedure and process that marked twentieth-century American legal thought, beginning with the rise of the administrative state in the early twentieth century and reaching its apogee with the Legal Process School in the 1950s and 1960s.
The conventional account of the modernist turn to method runs as follows. Around 1900, thinkers in diverse realms of Euro-American intellectual life—ranging from law to literature, mathematics to music, physics to painting—became newly aware of the rickety scaffolding propping up their disciplines and endeavors. What were once deemed established truths, unassailable rationalities, given moralities, and transcendental aesthetic norms suddenly seemed spurious, the product of nothing but history, the tottering fabrications of fallible men. In the American legal context, this moment is exemplified in the scholarly writings, addresses, and judicial opinions of Oliver Wendell Holmes, Jr. The modernist moment was famously disorienting, simultaneously frightening and challenging, at once fraught with promise and uncertainty. Old moorings had come undone. How was one to make sense of the world? How was one to proceed? Continue reading "The Pleasures of Method"
Feb 4, 2021 Pamela BookmanCourts Law
Alyssa King,
Global Civil Procedure, __ Harv. Int’l. L. J. __ (forthcoming 2021), available at
SSRN.
Remember when civil procedure was making headlines? Dozens of courts relied on familiar procedures to dismiss meritless lawsuits lacking proof or factual support. The Supreme Court dashed President Trump’s hopes of a judicial reversal of fortune by relying on standing to reject Texas’s attempt to have the Court exercise original jurisdiction over its suit against Pennsylvania and other states. While Trump and his affiliates complained that cases were being dismissed based on “technicalities,” those dismayed by Trump’s attempt to subvert the election rejoiced that civil procedure did its basic job of protecting justice.
These recent events—and more recent ones—provide a striking backdrop for Alyssa King’s Global Civil Procedure. Surveying procedural developments in litigation and arbitration around the world, King reveals an overlapping consensus in how institutions handle civil dispute resolution. She demonstrates a growing consensus on what procedure governs civil dispute resolution around the world but cautions that this seeming harmony conceals fundamental disagreements over what procedure is for, and thus differences in what procedure can and should do in different political contexts. Continue reading "Procedure Here, There, and Everywhere"
Feb 3, 2021 Larissa KatzJurisprudence
In my last year of law school, through the dark days of an Alberta winter, I read a book about property law by a young professor visiting from England. It was a dazzling book, brilliant and witty, learned and ambitious. It made clear that the idea of property was the proper subject of philosophical inquiry, something both obvious and marvelous that would repay close attention. That book, The Idea of Property in Law (1997), and its author, James Penner, have stood as a source of inspiration for property theorists (myself included) ever since. Now almost twenty-five years later, James Penner has revisited that account of property in a new book, the aptly-named, Property Rights: A Re-Examination.
What was so striking about The Idea of Property in Law, then and now? The first is its attempt to account for property in terms of its two essential features: the excludability of others from the object of the property right (the thing) and the separability of the thing from its owner. The second is its attempt to reconcile the idea of property as a right to a thing with the idea of property as a correlative jural relation. Penner insisted that property was both relational and a right to a thing and indeed that the relationality of property depended on its thingness. His claim was that the thing (the res) mediates between the duties of non-owners and the rights of owners. Property rights are correlative, on Penner’s account. Unlike other private law rights, they depend on the mediating role of things to achieve that correlativity. An owner may enter into any number of direct, personal relationships with others, individuals who become that owner’s tenants, licensees, buyers. But the owner’s relationship with everyone else is on a different footing, Penner pointed out. They may have no personal relationship with the owner at all: Their relationship to him is only “through his property” and that relationship is regulated by a general duty not to interfere with the property of others. (1997, P. 27.) Continue reading "Beyond Exclusion"
Feb 2, 2021 Christophe GeigerIntellectual Property Law
Martin Husovec,
The Essence of Intellectual Property Rights under Art 17(2) of the EU Charter, 20
German L. J. 840 (2019), available at
SSRN.
The complex interface between intellectual property and fundamental rights is a fascinating field for research which has attracted considerable scholarly attention in the last decades. U.S. IP scholars are well aware of fundamental rights under the U.S. Constitution. The European Union has “constitutionalized” IP rights as well as fundamental freedoms in the Charter of Fundamental Rights of the EU placing them at the very top of the hierarchy of norms.
In The Essence of Intellectual Property Rights under Art 17(2) of the EU Charter, Martin Husovec explores the constitutional notion of the “essence of rights”—according to which any fundamental right has an inviolable core that needs to remain untouched (or only touched with very strong justifications) from any legislative activity—in order to determine if Art. 17(2) of the EU Charter includes a notion of essence of IP rights. If so, this would have profound consequences for legislators as it could prevent changes made by them to the IP legal framework, or at least make them very difficult. In particular, this question has high relevance in the situation where a legislator, after empirical analysis and assessment of the merits of a particular IP right, would decide to legislate it away because of its incapacity to deliver its promises. Continue reading "Can IP Rights Be Freely Reformed, Limited or Repealed, or Are There Restrictions Resulting From Constitutional Theory and Fundamental Rights?"
Feb 1, 2021 Katharine YoungInternational & Comparative Law
Matiangai Sirleaf, Racial Valuation of Diseases, 68 UCLA L. Rev. __ (forthcoming 2021).
The Covid-19 pandemic has impacted all of us, but not all of us equally. Far from acting as the great leveller, the disease that itself does not discriminate has revealed and exacerbated startling health disparities across the United States and globally. The early disaggregation of data indicated that Covid-19 mortality rates were more than double in Black populations than in White populations in the U.S., and were one and a half times as high, nationwide, in Latinx, and Indigenous populations. Infection rates, by population group, were also higher. The disparities of the global spread added further complexities. Now, as the Covid-19 vaccine has been developed in record speed, the challenge of distribution must incorporate facts about public health disparities alongside questions of prioritization. Two big questions loom: how much do our concepts of distributive justice and global justice incorporate racial justice? And how much should they?
Matiangai Sirleaf has given us a vocabulary, and a theoretical framework, to grapple with these issues. In her forthcoming article, Racial Valuation of Disease, she examines both the hierarchical valuation of racial groups in the context of disease, and the distributional consequences of that valuation. In developing the concept of racial valuation, she borrows from frameworks developed within critical race theory (CRT) and Third World Approaches to International Law (TWAIL), such as racial capitalism, intersectionality, “whiteness as property”, “interest convergence”, racial stratification, neocolonialism, and racial empathy gaps. These concepts, pioneered by Cedric Robinson, Kimberlé Crenshaw, Cheryl Harris, Derrick Bell, Robert E. Washington, amongst others, point out how past acts of violence, such as slavery, colonialism, and Jim Crow, continue to manifest in facially neutral policies and apparently color-blind laws. A powerful inverse of the moral valuation demanded by the Black Lives Matter movement, the racial valuation of disease provides a background to Covid-19 that demands a close reading – and that should help to provoke an array of structural, institutional and intellectual responses. Continue reading "Disease, Distribution and Race in the Time of Covid-19"
Jan 29, 2021 Saule T. OmarovaCorporate Law
History is the key to understanding U.S. banking law and regulation. History also repeats itself. Professor Art Wilmarth’s new book sheds new light on these oft-repeated propositions. It tells a multi-layered, richly textured story of how the rise of U.S. universal banks – diversified financial conglomerates clustered around publicly-backed banks – led both to the Great Depression of the 1930s and the Great Recession of the post-2008 era. On that basis, it makes a case for breaking up today’s universal banks and shadow banks and reestablishing the legal wall separating banking from the capital markets.
The book has been eagerly anticipated by all of us in the banking law and financial regulation academic community. Professor Wilmarth has devoted much of his long and fruitful scholarly career to studying the dysfunctional effects of excessive conglomeration in the U.S. banking sector. His knowledge of the subject is unparalleled (as some of us often joke, Art has probably forgotten more banking law than we will ever manage to learn!). Taming the Megabanks brings all of that immense knowledge into a compelling narrative of a decades-long process that gave us today’s corporate behemoths: Citigroup, JPMorgan, Bank of America, and a few other familiar names. Continue reading "A Case for Breaking the Money Trust"
Jan 28, 2021 Zack BuckHealth Law
Health law is complicated, unruly, and maybe even incoherent. It lacks a simple universally understood narrative of what, exactly, it is. On top of this complicated foundation, legal and policy reforms have taken effect over recent years with dizzying speed, only to be challenged, carved back, or reversed in later years. Annually, it seems that the whole field of health law hinges on some major case or dramatic legislative effort. The previous year’s class syllabus is never reusable. And it has even humbled our president, as he recently told us what we all already knew: it is unbelievably complex. Seemingly in vain, health law scholars and legal academics search for a unifying theme. But maybe this so-called bug is truly a feature, and its disjointedness may present us with many open lines of scholarly inquiry, giving us all lots of room to run.
That’s why articles that are able to tell a story about the development of health law and about reasoned cause-and-effect of legal and policy development, are so helpful to the field and those of us who work within it. Drawing on historical analysis, interacting with a breadth of previous scholars’ work, and pulling together a simple but edifying story about the development of health law is The Dynamism of Health Law: Expanded Insurance Coverage As the Engine of Regulatory Reform, by Gabriel Scheffler. Continue reading "In Search of Health Law Coherence"
Jan 27, 2021 Christine BartholomewCourts Law
Bryan Lammon,
An Empirical Study of Class-Action Appeals (2020), available at
SSRN.
Modern class-action scholarship needs more myth-busting. Class-action narratives—for and against aggregate litigation—have spurred decades of procedural reform, from the 2005 Class Action Fairness Act to amendments to Federal Rule of Civil Procedure 23. Scholarship rarely interrogates whether the reality of class-action practice aligns with these narratives. This leaves a potential gulf between scholarship and practice. Bryan Lammon’s An Empirical Study of Class-Action Appeals contributes to the growing body of research aimed at bridging this gap.
In this work in progress, Lammon debunks myths about class-action appeals. The function of Rule 23(f) is clear enough: it permits interlocutory review of class-certification decisions, creating a carve out to the final judgment rule. Certification is a pivotal procedural point in the life of a class action. If a case is not certified, its value is limited to the damages sought by the named class representatives. If it is certified, the value of the case jumps to cover all potential class members.
Since its enactment in 1997, however, Rule 23(f) has been somewhat of an enigma. While the rule’s function and rationale are straightforward, its potential impact on certification is murkier. As Lammon details, Rule 23 engenders discontent from both plaintiffs and defendants. Plaintiffs fear the rule advantages defendants by increasing the reversal of certification decisions. On the other hand, “[d]efense-side interests contend that the courts are inconsistent in applying Rule 23(f) and that the rule insufficiently protects defendants from the pressure to settle.” Continue reading "The Reality of Class-Action Appeals"
Jan 26, 2021 Philomila TsoukalaFamily Law
The literature on surrogacy regulation has recently taken a turn towards a more pragmatic understanding of the field. Scholars have attempted to describe surrogacy regulation as it already exists and analyze the different interests involved, under conditions of legal fragmentation and uncertainty. Rachel Rebouché’s Contracting Pregnancy is an important contribution in this vein.
The article contributes several advances to our knowledge of surrogacy contracts in action. First, Rebouché analyzes statutory developments alongside standard terms included in surrogacy contracts. Doing so allows her to notice a tension between the law on the books and the law in action. The newest statutes attempt to balance the interests of intended parents and surrogates, recognizing parentage for the former, while safeguarding the surrogate’s autonomy interests, by emphasizing that decisions about termination ultimately reside with the surrogate. Lawyers involved in the drafting process, however, regularly include language “that contradicts state efforts to level the playing field for parties.” (P. 1596.) Rebouché finds this recurrent tension between state statutes and contractual language in the areas of pre-pregnancy genetic testing, prenatal screening and testing, lifestyle decisions during pregnancy, and abortion. In other words, the contracts that lawyers draft regularly try to vest intended parents with decision-making power over these areas, against the backdrop of a statutory (and constitutional) framework that vests that authority on the surrogate. Continue reading "Bargaining in the Shadow of (Confusing) Law: The Case of Surrogacy Contracts"
