Monthly Archives: February 2022

Civil Procedure for Lawyerless Courts

Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. __ (forthcoming, 2022), available at SSRN.

Law students often perceive civil procedure as the first-year subject that is least accessible to nonlawyers. Before law school, students signed contracts, owned property, monitored criminal trials, encountered torts, and invoked the Constitution. But civil procedure teems with novel concepts, mysterious rites, and unfamiliar vocabulary. These features beguile students into viewing civil procedure as a realm in which only lawyers tread. The case method reinforces this misperception by focusing on published opinions arising from litigation between represented parties. The misperception persists after graduation and influences how lawyers conceptualize the field of civil procedure.

Unfortunately, focusing on how procedure shapes opportunities for lawyers obscures the large volume of civil cases in which at least one party does not have a lawyer. A growing literature explores the implications of failing to adapt lawyer-centric procedural ideals to “lawyerless” adjudication. Scholars have analyzed state courts in which cases routinely proceed without lawyers (such as family courts) or in which represented parties sue unrepresented parties (such as housing courts). These courts affect millions of vulnerable people in traumatic circumstances. Yet procedures in many lawyerless courts fail to account for the practical consequences of self-representation within a nominally adversarial system. The ensuing risk of injustice has led commentators to propose a wide variety of reforms. Pamela Bookman and Colleen Shanahan’s A Tale of Two Civil Procedures looks beyond “fixing” specific procedures. The Article focuses instead on removing obstacles to understanding what is broken. A critical obstacle is that commentators often frame the field of civil procedure in a way that obscures the importance of lawyerless adjudication. The Article suggests reframing the field to directly engage with distinctions between “lawyered” and “lawyerless” courts. Bookman and Shanahan contend that this approach will make descriptive accounts of civil procedure more precise, normative discussions more nuanced, and reform proposals more effective. Continue reading "Civil Procedure for Lawyerless Courts"

Why is it So Hard to Reduce the Wealth Gap? Cognitive Bias May Be Partly to Blame

Joshua Conrad Jackson & Keith Payne, Cognitive Barriers to Reducing Income Inequality, 12 Soc. Psych. & Personality Sci 687 (2021).

The problem of income inequality is well-documented. And for those who support greater income redistribution, the current state of affairs is bleak. Proposals for a wealth tax or heavier taxation of capital income appear to have stalled, and little progress has been made towards meaningful reform measures that would shrink wealth and/or income gaps.

So what gives? We already know part of the story. Progressive tax proposals, such as mark-to-market taxation, tend to be complex, which in turn makes them harder to sell to politicians and the public. Similarly, reform measures like a wealth tax face criticism that they would be too hard to administer. Yet adding to these problems appears to be a general indifference, if not outright lack of support, from the public. This is puzzling because, given the evidence that only a very small percent of Americans holds most of the nation’s wealth, a lot of people would benefit from wealth or income redistribution. So why isn’t there more popular support for redistributive tax policies? A recent empirical study offers compelling evidence of another major barrier to reform: our irrational, subjective beliefs about where we fall on the income distribution. Continue reading "Why is it So Hard to Reduce the Wealth Gap? Cognitive Bias May Be Partly to Blame"

Honor Among Thieves: US Property Law, Conquest, and Slavery

In the most powerful and important article I have read in years, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, Professor K-Sue Park blows the cover off American property law to show the central role played by historic expropriation and commodification of Native lands and Black persons.

Conquest of land and enslavement of people make up a small or nonexistent part of most first-year property law courses. But without these two organizing principles, the property course in U.S. law schools seems disjointed and oddly Anglicized. Professor Park explains this lack of cohesion as resulting from persistent erasure of two of U.S. property law’s most foundational aspects: conquest and slavery.

Park’s work has helped to publicize the stubborn impacts of past and present racial injustices in America. Over the past year, this increasing awareness of systemic racial bias has sparked an angry backlash. As Park puts it, “[w]e are in the midst of an ongoing fight over competing versions of U.S. history.”1 Continue reading "Honor Among Thieves: US Property Law, Conquest, and Slavery"

Why Don’t Policymakers Speak Out About Migrants?

Ava Ayers, Missing Immigrants in the Rhetoric of Sanctuary, 2021 Wis. L. Rev. 473 (2021), available at SSRN.

Ava Ayers asks us to think about a hypothetical policy that says, “We must protect our children from violent crime because children are key drivers of economic well-being.” Professor Ayers aptly describes this language as “creepy.” Why, then, do politicians often discuss immigration by emphasizing what migrants can do for us, rather than in terms that recognize the agency, rights, and intrinsic value of individual migrants? While the effects of immigration are a legitimate concern, the rhetoric of politicians often leans on a transactional approach to immigration, rather than one based on moral grounds. While the reluctance to highlight what is best for migrants may be understandable given political calculations, Professor Ayers pushes us to think about what is lost by ignoring opportunities to say that undocumented individuals matter, that they are a part of the community, and that they are worthy of the concern of public leaders. Professor Ayers’ approach focuses on the way that policy reflects “attitudes about the value of human beings.” The law is about more than just consequences.

In Missing Immigrants in the Rhetoric of Sanctuary, Professor Ayers examines the rhetoric used by local and state policymakers when crafting sanctuary policies. While “sanctuary” has no strict definition, it generally refers to policies that resist immigration enforcement or policies that withhold state and local cooperation with immigration enforcement. Some sanctuary policies involve active resistance, while others are more passive. All sanctuary policies are meant to protect individual noncitizens. But, as Professor Ayers has found, the justifications for sanctuary policies are at times expressed in language that emphasizes what sanctuary policies can achieve for those who are not at risk of deportation. In other words, policymakers, at times, do not make those who will benefit from a sanctuary policy the center of their rhetoric. Continue reading "Why Don’t Policymakers Speak Out About Migrants?"

Designing Rituals in the World of Virtual Courts

Meredith Rossner, Remote Rituals In Virtual Courts, 48  J. L. & Soc’y 334 (2021).

In a Tai Chi exercise, two people stand face to face, each with one palm outstretched an inch or two apart. One person moves their hand and the other seeks to follow it wordlessly. The exercise is designed to produce a feeling of the energy flowing mysteriously between two people. I was reminded of this exercise when reading Meredith Rossner’s article on remote courts which moves deftly between the sociology of co-presence, ritual, and entrainment, which is “the synchronization of mutual attention, emotion, and behaviour,”1 to test the potential of virtual justice.

Rossner argues virtual courts can “translate,” improve, and sometimes “completely reimagine” court ritual. The article illustrates some paths to be taken between tech evangelism and traditionalism. It shows how thoughtful and well-researched court design can (sometimes) allow remote justice to emulate and improve upon physical courtrooms. Material and symbolic court rituals can be translated into virtual contexts in ways more egalitarian and inclusive than the austere grandeur of higher courts and the dilapidated functionalism of everyday courts. Continue reading "Designing Rituals in the World of Virtual Courts"

Henry Bergh, the American Society for the Prevention of Cruelty to Animals, and the Horse

Henry Bergh was the founder of New York’s American Society for the Prevention of Cruelty to Animals (ASPCA), the first U.S. animal rights organization established in 1886. The title of Ernest Freeberg’s new book, A Traitor to His Species, refers to the public perception of Bergh as no friend to humanity. Those who Bergh did battle with, “teamsters and turtle dealers, circus managers and cockfighters, butchers and surgeons,” defensively asked “Why did Bergh hate humanity so?” Why was he such “a traitor to his own species”? (P. 5.) Freeberg does little to deflect the image of Bergh as “a fanatic who cared more for animals than he did for humans.” (P. 29.) To the extent that this is a stereotype of animal activists (i.e. as misanthropes), one might wish Freeberg had engaged with that view of Bergh a little more critically. However, Freeberg’s Bergh, declared by one newspaper to be a “public pest,” was “perhaps,” according to Freeberg, “a necessary one.” (P. 21.) Certainly, “[t]he vivid tales of his confrontation on the streets of New York made him one of the city’s celebrities.” (P. 22.) Many different animals were featured in Bergh’s campaigns; however one stood out, the one Bergh was most concerned about and which caused him to take up the animal cause in the first place: the horse.

A Traitor to His Species begins with the following line: “Few pictures of a late nineteenth-century American city street lack a horse.” (P. 1.) Relatively elderly (fifty-three) and wealthy when he came to start caring about the treatment of animals, Bergh was deeply moved by the abuse of carriage horses he witnessed in St. Petersburg during a brief time spent in Russia as a diplomat. Freeberg says that it “provoked in him [Bergh] something like a conversion experience.” (P. 8; see also Pp. 24-25.) Freeberg also tells us that a large bequest for the ASPCA later came from a wealthy fur trapper, Louis Bonard, who gave a deathbed donation motivated by the fear that “he would soon be reincarnated as a carriage horse.” (P. 116.) Continue reading "Henry Bergh, the American Society for the Prevention of Cruelty to Animals, and the Horse"

Disagreement about Law and Morality: Empirical Results and the Meta-Problem of Jurisprudence

There are some views in philosophy that have the reputation of being intuitive or widely held. One such view is legal positivism. The positivist maintains that what fundamentally determines the legality of rules is purely social facts—for example, people’s acceptance of the rule—and, moreover, that the moral wickedness of a rule does not necessarily diminish its legality. Positivism is standardly assumed to be more intuitive and widely accepted than competing, non-positivist views.1 But the basis for this assumption is rarely (if ever) made explicit. Until recently, there has been very little empirical work investigating general intuitions about law’s nature. Two recent studies, however, report results that challenge the conventional wisdom about convergence and controversy in jurisprudence.

In The Folk Concept of Law: Law is Intrinsically Moral, Brian Flanagan & Ivar Hannikainen test whether the “folk” concept of law is more compatible with positivism or non-positivism. They surveyed 390 college students, who had not yet taken any courses in legal philosophy, about their willingness to attribute legality to rules that, while socially accepted in a hypothetical jurisdiction, are morally wicked. In one of their experiments, F&H presented subjects with a society called “Figuria” where citizens are law-abiding and follow a constitution that “assigns unfettered legislative power to an elected assembly and omits any mention of individual rights.” The assembly, prompted by a belief in white supremacy, passes a statute banning interracial marriage. Subjects were asked to indicate their level of agreement with various statements regarding the statute’s legality, including “there is a sense in which [the statute] is clearly a law” and “ultimately, when you think about what it really means to be a law, you would have to say that [the statute] is not truly a law.” They report the following results: Continue reading "Disagreement about Law and Morality: Empirical Results and the Meta-Problem of Jurisprudence"

Prior Art in Copyright

Joseph P. Fishman & Kristelia García, Authoring Prior Art, 75 Vand. L. Rev. __ (forthcoming 2022), available at SSRN.

Patent and copyright law share what the Supreme Court calls a “historic kinship”: they both grant exclusive rights under the IP Clause to incentivize production of new knowledge goods. But they implement this goal through very different doctrinal frameworks, including different roles for “prior art”—all the information that existed before the innovation at issue. Patent validity crucially depends on whether an invention is new and nonobvious compared to the prior art. In contrast, it doesn’t matter if a copyrighted work is similar to earlier works as long as it wasn’t actually copied from them. Copyright treatises unquestioningly assert that the formal prior art analysis of patent law has had no place in blackletter copyright doctrine.

The doctrinal trend identified in a new article by Joseph Fishman and Kristelia García, Authoring Prior Art, is thus interesting and surprising: in at least some recent copyright music cases, judges are looking at prior art. One judge even dismissed an infringement claim for “failing to consider prior art,” rendering the comparison between the original and infringing works “legally deficient.” Another dismissed a claim because the plaintiff’s expert report lacked “any information about prior art,” whereas the defendant’s expert cited three earlier songs with similar expressive qualities. Identifying this trend would be valuable on its own, but Fishman and García go further in tracing the source of this development to the influence of a small set of musicologist expert witnesses. Continue reading "Prior Art in Copyright"

The Depth of Liminal Space: Liminal Labor Law

Michael Oswalt, Liminal Labor Law, 110 Cal. L. Rev. __ (forthcoming, 2022), available at SSRN.

As a labor law scholar of a certain age, it is increasingly rare for me to encounter takes on unions and the National Labor Relations Act (NLRA) that provide a new theoretical framework that generates fresh and important insights. I am happy to say that this article does both. Imaginative in its conception and convincing in its details, Liminal Labor Law is a fascinating contribution to the field.

The article applies the social anthropology concept of “liminal” spaces—being “in between”—to labor law, and it does so in multiple ways. While the article describes the “liminal” concept in depth, for purposes here, consider Oswalt’s observation that “a certain vitality or even creativity can spring from middles and intermediacies . . . although labor law’s in-betweenness reflects a seriously defective regime, the gaps may also contribute to the labor movement’s perseverance and adaptability over time.” Labor law doctrines, because they so often shift dramatically depending on which political party controls the National Labor Relations Board, are in an “in between” state. Also, certain actors in the labor law world are in such a state, often because of shifting rules. For example, the law alternately describes university graduate assistants as primarily “students,” outside the coverage and concerns of the National Labor Relations Act (NLRA), or, conversely, as sufficiently “employees” to justify NLRA coverage. Most broadly, the COVID-19 pandemic has put the world of employment and worker responses to employment in an “in between state.” While not all attempts to apply theoretical concepts from fields outside law to legal scholarship are successful, this article is. The use of “liminal” theory illuminates both the shifting and often contradictory commands of labor law rules and polices and the practical and creative responses to this by players in the field. Continue reading "The Depth of Liminal Space: Liminal Labor Law"

A Tribute That Turns One Inside-Out

Comparative and international law scholarship places legal doctrines in context. Whether that context is helpful often depends upon one’s own disciplinary and normative commitments. Professor Fei-Hsien Wang’s Pirates and Publishers: A Social History of Copyright in Modern China challenges the view that a historic distrust of property rights undermines current efforts to import intellectual property law to the People’s Republic of China. The historical context she narrates is the main reason why this book is one I like lots. Even more pleasing is how Professor Wang’s book provides a new comparative and international context for understanding the possibilities for interdisciplinary scholarship itself.

Interdisciplinary context can fail, we are reminded, when it obscures the evolution of legal institutions. Professors Shyamkrishna Balganesh and Taisu Zhang make this point in their review of Professor Wang’s book by bringing to the foreground a critique from legal internalism. As they explain, legal internalism “refers to the internal point of view that regular participants in a legal practice usually develop toward it that sees it as normative, epistemologically self-contained, and logically coherent.”1 According to Balganesh and Zhang, Professor Wang’s social history of copyright overemphasizes social context and does not pay adequate attention to the evolving logic of legal doctrines, courts, and legal institutions. The Balganesh-Zhang review is also a work I like lots. In fact, the interplay of the book and the review increases my enjoyment of each, highlighting the importance of both the external contexts for and internal logic of copyright.2 Continue reading "A Tribute That Turns One Inside-Out"

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