Monthly Archives: March 2022

Taking Up the Challenge: A Roadmap for Studying the Effectiveness of Mandatory Continuing Legal Education

Rima Sirota, Can Continuing Legal Education Pass the Test? Empirical Lessons from the Medical World, Notre Dame J. L., Ethics & Pub. Pol’y (forthcoming 2022), available at Georgetown Scholarly Commons.

Mandatory continuing legal education (MCLE) is one of the most ubiquitous regulatory measures aimed at ensuring continuing lawyer competence.1 It is also one of the most critiqued. Over the past several decades, many lawyers and academics have argued that MCLE should be reformed, if not abolished. While MCLE requirements have so far largely withstood these attacks, recently, lawyer regulators seem to have developed a new appetite for doing things differently. A recent international survey of approaches to lawyer continuing competence observed, “lawyer regulators around the world have sought to improve the ability of CPD [continuing professional development] to improve competence in a number of different ways, increasingly moving away from a generic durational requirement.”2

In light of these developments, Rima Sirota’s article, Can Continuing Legal Education Pass the Test? Empirical Lessons from the Medical World, is a timely contribution to the literature on lawyer regulation. Speaking of the American context, Sirota argues that “the mandatory CLE system in its current state is indefensible” given its high costs and the lack of empirical evidence suggesting that CLE leads to improved lawyer competence. (P. 3.) While others have previously made this general point,3 Sirota’s contribution stands out for her call to the legal profession “to take up the empirical challenge” of measuring CLE outcomes and her provision of a roadmap on how this could be done. (P. 45.) Moreover, the comparative approach taken by Sirota, which looks to the medical profession’s approach to continuing education for potential insights, provides a fresh take on long-standing concerns about MCLE in the legal profession. Continue reading "Taking Up the Challenge: A Roadmap for Studying the Effectiveness of Mandatory Continuing Legal Education"

Beyond “Affirmative Action”: Hierarchical Inclusion in 1960s Israel

We usually consider affirmative action (or to use the current Hebrew term, “corrective discrimination”) as a vehicle for correcting historical wrongs and achieving greater social equality. Ofra Bloch’s Hierarchical Inclusion, however, reminds us that these are not essential elements of the practices we have come to characterize as “affirmative action.” More importantly, as a historical reality this has not always been the case. Examining the Israeli example during the state’s first two decades (1948-1968), Bloch demonstrates how affirmative action in Israel was animated by very different motives. In the process, she also complicates the conventional wisdom regarding the Israeli state’s treatment of its Arab minority during the 1950s and 1960s, a period frequently referred to as “the military regime.” Whereas most have focused on armed oppression which characterized this era and property dispossession, Bloch shows how the subordination of Israel’s Arab population was often far more subtle.

Most accounts of affirmative action in Israel begin in the 1990s. Bloch, however, shows how this policy came about far earlier. Mining never before explored files from the Israeli State Archives, the Knesset (Israeli Parliament) Archive and the Labor Movement Archive, Bloch is able to trace the overlooked motives that led the Israeli government to try integrating its Arab population into the workforce (in white and blue collar jobs, in both the private and public sectors) and into higher education. Rather than resting exclusively on egalitarian ideals, the efforts were geared primarily towards four other instrumentalist objectives: maintaining security by ensuring social stability; advancing Israel’s economic prosperity; gaining international legitimacy; and courting the Arab vote. Continue reading "Beyond “Affirmative Action”: Hierarchical Inclusion in 1960s Israel"

Jurisprudence Reevaluated

Jeff Pojanowski, Reevaluating Legal Theory 130 Yale L. J. 1458 (2021).

In Reevaluating Legal Theory, Jeff Pojanowski addresses a central question of jurisprudence, that of whether a careful theory of what the law is, involves value judgments concerning what the law ought to be. (P. 1460.) In various forms, this question has been asked by philosophers from the beginning of the Western intellectual tradition. Thus, for example, Aquinas considers whether a law that is judged to be unjust (out of reasonable order) can continue to bind in conscience due to the normal authority of legal commands (Summa Theologiae I-II.95.2c; 92.1 ad 4; 96.4c). His answer is subtle and complex. Pojanowski’s article is similarly subtle and complex, and makes many useful points, though as indicated below, some of these could be taken further in future work.

Pojanowski’s article begins with a brief survey of recent responses to the central question by Oxonian philosophers, but his interest is primarily in the work of Julie Dickson. Dickson argued that the key to the controversy about the nature of law lies not in contrasting evaluation and description (i.e. that laws can be described without any evaluation), but in distinguishing types of evaluation: some evaluation (that centring upon the participants in a legal system in evaluating what is significant or important to them) is necessary, as distinct from moral evaluation, which is not. Pojanowski argues that such debates about the ‘dividing line between jurisprudence and normative philosophy’ (P. 1464: but does this not capitulate already to the positivist position?) actually turn upon broader moral considerations of ‘what is good for persons’ and ‘competing ways of thinking about society’, thus revealing something of our moral and metaphysical commitments. (Id.) Continue reading "Jurisprudence Reevaluated"

What We Think About When We Think About Ownership

Aaron Perzanowski, Consumer Perceptions of the Right to Repair, 96 Ind. L.J. 361 (2021).

Property scholars have long noted a gulf between the way laypeople think about ownership and how property law actually works.1 This gulf has widened in the digital age, as our beliefs about what we own and what ownership means have not kept pace with our complicated relationships with digital goods. Consider, for example, the furor that arose a decade ago when it emerged that Apple insisted that iTunes users did not own purchased music files outright but had only a lifetime license to use them.

In a sparkling essay, Aaron Perzanowski explores the distance between the perception and reality of ownership in the context of the emergent right to repair. Traditionally, we expected to be freely able to repair physical items we own, whether a book with a torn cover or a car with a leaking fuel line. But how does this expectation translate in the digital setting? The question, Professor Perzanowski shows, is an important and complicated one. Continue reading "What We Think About When We Think About Ownership"

Empathy as Pragmatism: Facing the Challenges of Globalization in a Polarized World

I am not predisposed to scholarship written in an idealistic register. For many contemporary thinkers—in most any field—greater insight into modern political trends gravitationally pulls one toward cynicism. Some of this very cynicism encircles debates in international law that question whether idealism itself has been unwittingly complicit in bringing about the world of ever-growing inequality and retreating democratization now often centerpiece in global legal scholarship.

As such, I was not predisposed to like Six Faces of Globalization: Who Wins, Who Loses, and Why It Matters. I had long read with interest the scholarship of its two authors, Anthea Roberts and Nicolas Lamp, whose previous work has rarely been overtly optimistic about the international legal order. But Six Faces is an idealistic book to its very core and premise. Moreover, in working through a book of great ambition and intellectual agility, it is invariable to find points of disagreement, even discomfort, among its diverse insights. Yet, what is most striking about Six Faces is that throughout you can feel the authors’ dedication to finding a constructive way to be publicly facing international academics when most public spaces are thoroughly polarized and rife with contempt. It is in this reading that I found it both provocative and challenging. Continue reading "Empathy as Pragmatism: Facing the Challenges of Globalization in a Polarized World"

An Unapologetically Inconsistent Enforcement Regime

Jacob Elberg, Health Care Fraud Means Never Having to Say You’re Sorry, 96 Wash. L. Rev. 371 (2021).

Fraud is a major problem in American health care. It costs American taxpayers and patients from about $70 to $234 billion annually, which accounts for between three and ten percent of total health spending in the United States. It is an area that would be benefited by serious legal scholarly focus and inquiry, and well served by well-supported and implementable policy suggestions based on empirical data. Professor Jacob Elberg, through his serious and important work in this space, has provided just that in his most recently-published piece Health Care Fraud Means Never Having to Say You’re Sorry. Here, Elberg again shows why he is a leading voice in health care fraud and abuse scholarship.

The piece focuses on the civil federal False Claims Act (FCA), a major tool for the federal government that imposes major civil penalties against health care fraud defendants. As has been argued before, use of the FCA and its draconian penalties overwhelmingly leads to settlement, which—without courts’ review of the government’s theory of liability—can stunt the development of the FCA itself. In addition to the lack of meaningful judicial review in these matters, defendants often deny any wrongdoing as they settle FCA allegations, leaving the public and other defendants in the dark about whether the allegations had merit or drew a settlement simply because of expediency or the risk or cost of litigation. As Professor Elberg says, this has “fueled a cost-of-doing-business narrative in which health care entities are required periodically to pay inconsequential settlements to the government regardless of their conduct.” Continue reading "An Unapologetically Inconsistent Enforcement Regime"

An Institute of One’s Own: Polly Bunting’s “Messy Experiment” of Helping Women Navigate Work-Family Conflict

In 1960, Mary (“Polly”) Ingraham Bunting, newly-appointed President of Radcliffe College, wrote an essay for The New York Times Magazine to encourage applications to the new Radcliffe Institute for Independent Study. In the essay, Bunting connected the Institute’s goal of ending the “waste of highly talented, educated womanpower” to helping women as well as to better realizing America’s “heritage” and “aspirations.” The Institute would help “intellectually displaced women”—mothers whose homemaking and childcare responsibilities had interrupted their careers—get back on track through a financial stipend of up to $3,000, access to Harvard’s library resources, a private office, and formal and informal exchange.

As Maggie Doherty recounts in her engaging book, The Equivalents: A Story of Art, Female Friendship, and Liberation in the 1960s, Bunting, a microbiologist and educator, first conceived this “messy experiment” in “a national war room populated almost entirely by men”: she served on a Cold War-era committee formed by the National Science Foundation after the Soviet Union’s launch of Sputnik to study education in the U.S. and steer more resources and students into science and engineering. (Pp. 58-59.) Publicity for the Institute echoed Cold War rhetoric about the national risk of not utilizing women’s talents, but also stressed the risk to families and marriages: “This sense of stagnation can become a malignant factor even in the best of marriages . . . when the gifted woman must spend her time inventing ways to employ herself mentally and failing, or only half-succeeding, may turn against the marriage itself in sheer frustration.” (P. 68.) If this rhetoric brings to mind Betty Friedan’s famous articulation of “the problem that has no name,” in The Feminine Mystique, it may be because Bunting and Friedan initially planned to collaborate on the book. However, the collaboration ended because Bunting resisted Friedan’s approach of viewing the dynamic “in terms of men against women,” instead of (as Bunting perceived it) a “climate of unexpectation” about women’s roles “in which both men and women were trapped”: that women could not have both family and career so that any pursuit of intellectual goals would be at a cost to their personal lives. (Pp. 63, 65.) Bunting viewed the Institute as a way to change that climate. (P. 63.) Continue reading "An Institute of One’s Own: Polly Bunting’s “Messy Experiment” of Helping Women Navigate Work-Family Conflict"

Facilitating the Information-Forcing Function of Tort Law

Elizabeth Chamblee Burch & Alexandra D. Lahav, Information for the Common Good in Mass Torts, 70 DePaul L. Rev. 345 (2021).

Most believe that tort law, at its root, is about dollars and cents. The defendant pays; the plaintiff pockets a specified sum. It is through this financial transfer that tort law’s broader aims—deterrence and compensation—are achieved. Yet, in Information for the Common Good in Mass Torts, recently published as part of the twenty-sixth annual Clifford Symposium, Elizabeth Chamblee Burch and Alexandra D. Lahav complicate that simple story. In the piece, Burch and Lahav argue that, besides damages, tort law very often involves the transfer of something just as valuable if less quantifiable: information.

To see tort litigation as a source of information is to see tort through a different lens. Seen through this lens, in fact, much of what we know—or think we know—about what tort law does or how it works becomes subject to reexamination. Continue reading "Facilitating the Information-Forcing Function of Tort Law"

“Order Without Law” in Discovery

Edith Beerdsen, Discovery Culture (Mar. 14, 2022), available at SSRN.

Discovery drives U.S. civil litigation but rarely grabs the public’s attention. Recent high-profile cases offer exceptions to this rule. In 2022, MyPillow CEO Mike Lindell’s refusal to participate in the discovery process in the $1.3 billion defamation claim brought against him by Dominion Voting System made national news. A few months earlier, Remington Arms garnered major media coverage after it produced thousands of cartoons, emojis, and other seemingly irrelevant images in response to a document request in the lawsuit brought by ten families of victims in the Sandy Hook shooting tragedy. These aggressively unlawful discovery machinations might simply demonstrate disregard for the rule of law in these contentious times. But civil discovery’s time in the shadows also might embolden parties’ misbehavior.

In Discovery Culture, Edith Beerdsen argues that discovery is primarily an extralegal practice governed by the informal norms of the legal community, which can explain Lindell and Remington’s behavior and more. Beerdsen explores this phenomenon and how it interacts with formal legal authorities to influence parties’ decisions about what discovery requests are reasonable, when to cooperate, and when to seek the court’s intervention. Beerdsen’s descriptive and theoretical accounts of how discovery functions greatly add to the study of American civil litigation. Continue reading "“Order Without Law” in Discovery"

Jotwell Spring Break 2022

Having taken an abbreviated winter break, we’re awarding ourselves a compensatory week off in Spring. Who doesn’t want a Spring Break in Miami?

I and the Jotwell Student Editors — Claire Chatellier, Bridget Dye, and Allison M Paquin — wish our readers in and outside Ukraine safety and good health. Posting will resume on March 21st. See you then!

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