Monthly Archives: June 2022

Challenging Home Court Advantage

John Coyle & Katherine Richardson, Enforcing Inbound Forum Selection Clauses in State Court, 53 Ariz. St. L.J. 65 (2021).

As national and international commerce move increasingly to online platforms – which themselves tie together nearly every corner of the globe – the problem of dispute resolution when business goes awry or products cause injury has moved to a central position for scholars of private law, both domestic and international.  In their careful and important work, Enforcing Inbound Forum Selection Clauses in State Court, John Coyle and Katherine Richardson address an important aspect of this problem: “inbound” forum selection clauses, i.e. those that require adjudication in the forum where the lawsuit is filed. Coyle and Richardson distinguish “inbound” forum selection clauses from “outbound” forum selection clauses – those that require adjudication in another forum. This distinction, they rightly note, is often missed by federal district courts and it is critical for analysis under Fed. R. Civ. P. 4(k), which in essence makes federal district court jurisdiction coextensive with the general law of personal jurisdiction of the state in which the federal district court sits (itself a quirk of political dynamics in the U.S. federal system).   This article is one I like a lot, and I hope others active in the study and shaping of private international law do as well.

In addition to the important distinction they highlight in the law governing forum selection clauses – inbound and outbound – Coyle and Richardson undertake a heroic effort to 1) map the legal terrain of state law governing inbound forum selection clauses (there are four general regimes, with a majority of states following the approach adopted by the U.S. Supreme Court in The Bremen v. Zapata Off-Shore Co. concluding forum selection clauses are broadly enforceable absent an extraordinary showing of unreasonableness or unfairness); 2) describe the unfairness that results from current treatment (they begin the article with Google’s standard terms that require adjudication in Santa Clara County, California); and 3) propose solutions based on the size and sophistication of the party disadvantaged by the inbound forum selection clause. Continue reading "Challenging Home Court Advantage"

Racism in the Valuation of Disease and the Distribution of Lifesaving Treatments

Matiangai Sirleaf, Racial Valuation of Diseases, 67 UCLA L. Rev. 1820 (2021).

The genomic age showed that race is not genetic; it is only a social construct. More specifically, the genome between humans is 99.5%-99.9% identical; the 0.1%-0.5% variation between any two unrelated individuals is greatest between individuals in the same local population; and there are no identifiable continental or racial genomic clusters. Thus, the connection of disease and race is not about science; rather it is a way to support a system of racial hierarchy that devalues the lives of racial and ethnic minority individuals.

The racialization of disease to support a racial hierarchy is not new, as Professor Matiangai Sirleaf discusses in her article, Racial Valuation of Diseases, and does not happen in a vacuum. The United States government and colonial forces have long used laws to limit the rights of racial and ethnic minority individuals based on the racialization of disease. As one example, Professor Sirleaf cites the 1882 Chinese Exclusion Act, which “prevented Chinese laborers from immigrating to the United States in part based on biases and stereotypes that they were more likely to carry cholera and smallpox.” Similarly, Haitian people seeking refuge in the United States were linked to having HIV/AIDS and denied access in 2021. Continue reading "Racism in the Valuation of Disease and the Distribution of Lifesaving Treatments"

Let Kids be Kids

In the introduction to her book, Kristin Henning writes: “We live in a society that is uniquely afraid of Black children.” (P. xv.) The Rage of Innocence shows just what that means for Black children – and the rest of us.

In bleak chapters, Henning examines the criminalization of Black youth. A chapter contrasting the experiences of white and Black American adolescents sets the table. The next three chapters examine how “play,” clothing and hip-hop, and sexuality transform into markers of crime. A set of chapters examining policing-based activities follows, while the penultimate two chapters explore the “dehumanization” of Black children and Black families. Henning shows how the police and school “resource officers” treat the normal behaviors of childhood, when exhibited by Black children, as illegal activities while the same behaviors of white children are unnoticed – or rewarded. She starts almost every chapter with the story of a particular child or youth, and then embeds those stories in social science data and legal analysis that back up and illustrate her point. Continue reading "Let Kids be Kids"

The Constitution Is Just What Happens to How We Talk about It

Alex Schwartz, The Changing Concepts of the Constitution, _ Oxf. J. Leg. Stud. _(forthcoming 2022), available at SSRN.

American readers, especially those of a textualist or originalist persuasion, will likely be familiar with the idea of corpus linguistics. As one well-known article promoting its use explains, it involves searching “for patterns in meaning and usage in large databases of actual written language” in order to clarify the meaning of legal texts that would otherwise be ambiguous or vague. But can techniques involving computer analysis of text help us understand unwritten rules―say, the United Kingdom’s constitution?

In his article, The Changing Concepts of the Constitution, Alex Schwartz sets out to do just that. Using big-data wizardry, Schwartz explores the way in which members of the UK Parliament speak about the constitution and about constitutional concepts such as parliamentary sovereignty, human rights, and the rule of law, and discerns changes in their use over time. The exercise is enlightening both to those studying the UK constitution itself and also, I submit, to those who are interested in the project of understanding constitutions, in all their diversity. Continue reading "The Constitution Is Just What Happens to How We Talk about It"

Justice As Celebrity

Suzanna Sherry, Our Kardashian Court (and How to Fix it), 106 Iowa L. Rev. 181 (2020).

Following “the Dobbs leak,” I re-read Suzanna Sherry’s Our Kardashian Court (and How to Fix it). The piece is, sadly, prescient in discussing our broken Supreme Court. Her diagnosis of the Court’s dysfunction—cults of personality—rings truer following the leak than any Presidential Commission’s report. Her prescription—statutorily mandating that rulings be communicated in per curiam opinions without concurrences, dissents, or vote counts—rings more achievable than court-packing or its derivations do. Further, her piece—more than any I have grappled with for some time—caused me to reflect more deeply upon what the rule of law means in a profession dominated by legal-realist jurisprudence. I urge you to give this piece a read soon.

It is no secret that the Court suffers from greater legitimacy concerns and internal dysfunction than in the past. Many have proffered structural causes and solutions for these concerns. Sherry argues that we should focus on the celebrity status of the Justices as an important causal factor in these breakdowns. The Court is now “Keeping Up with the Kardashians Justices.” That is the problem, in her view. Continue reading "Justice As Celebrity"

Bargaining Away the Constitution

Why does our system pressure innocent people into pleading guilty?” (P. 5)

When people think about how the criminal justice system works, they might think about a trial in a courthouse, with a judge, jury, lawyers, and a defendant trying to beat the case. While this might have been the expectation of the framers, or indeed how criminal justice worked at some times and in some cases, things are very different for most people encountering the system today. Rather than enforce constitutional rights to ensure justice is carried out, what happens today is pure injustice, characterized by individuals pleading guilty to crimes they did not commit, prosecutors leveraging powers and discretion against defendants, and judges and defense counsel who sometimes seem more interested in cutting and approving deals than seeing justice upheld. Rather than arriving at the truth, the system is obsessed with efficiency, with disposing of one case and moving on to the next. The reason innocent people are pressured to plead guilty, asserts Carissa Byrne Hessick, is “because everyone is pressured into pleading guilty. Ours is a system of pressure and pleas, not truth and trials.” (P. 5.)

Hessick’s Punishment Without Trial—Why Plea Bargaining is a Bad Deal argues our system is now designed to impose punishment without trial—a fundamental change to the very foundations of the criminal justice system. The book boldly calls out the constitutional sacrifices made in the name of expediency—and there are lots of them. For example, it is common for prosecutors and judges to impose a “trial penalty” on defendants, by which they give more favorable deals to those who plead guilty and free up the court of having to conduct a trial. In contrast, the defendant who goes to trial can expect to be charged with more crimes and more serious crimes, and handed longer sentences. The penalty effectively punishes a defendant for exercising the constitutional right to a trial by jury, which undermines the very purpose of having the right. But the possibility of more punishment isn’t the only pressure. The system of pretrial detention pushes people to admit guilt too: Continue reading "Bargaining Away the Constitution"

Bringing the Fiduciary Back In

Wisdom sometimes is best recognized by a traveler. In Delaware’s Fiduciary Imagination: Going Privates and Lord Eldon’s Reprise, Professor David Kershaw of the London School of Economics revisits cases that we know very well, putting them in the context of British decisions, and elicits a distinction that appears obvious, yet comes as a bit of a surprise: There is a distinction between abuse of power and abuse of influence. These are two ideal types of the “source of obligation” for fiduciaries

Abuse of power flows from the grant of power to the fiduciary. Abuse of influence flows from the limited consent of the beneficiary. For example, controlling shareholders were once understood as being able to abuse their corporate powers. Today, it is more common to focus on how they can “threaten the minority to say ‘yes.’” Duties to creditors follow from influence over them near the debtor’s insolvency but do not flow from an abuse of corporate powers. Continue reading "Bringing the Fiduciary Back In"

Seeing Contract Law through Racial Capitalism

Chaumtoli Huq, Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anticapitalist Lawyering, 35 J. Civ. Rts. & Econ. Dev. __ (forthcoming 2022), available at SSRN.

Professor Chaumtoli Huq’s recently posted Article, Integrating a Racial Capitalism Framework into First-Year Contracts: A Pathway to Anticapitalist Lawyering, provides an accessible and insightful map for engaging with and applying theories of racial capitalism in a first year Contracts law course. Her Article is a powerful testament to the idea that critical legal thinking skills are good legal practice skills. Asking questions informed by racial capitalism enables us to better articulate in the classroom how the law that builds and reinforces capitalism is not (only) racially exploitative through one-off instances of discrimination, but rather throughout the very foundations of labor, property, contract, and corporate jurisprudence.

The Article deftly demonstrates the pedagogy of a racial capitalism-informed contracts law analysis. Huq presents several critical concepts, including “praxis” and “racial capitalism,” in accessible language while also explaining their relevance for legal education. In describing racial capitalism as “the mutual interdependence of racism and capitalism, a form of capitalism that relies on and is maintained by the exploitation and reproduction of racial differences” (P. 5), she draws from Ruth Wilson Gilmore, Cedric Robinson, Robin D. G. Kelley, Claudia Jones, and others, explaining the under-appreciation of Jones’ and other Black feminist insights in academic literature along the way. She describes the relevance of racial capitalism for contract law thus:

Racial capitalism provides an important through-line for students to understand how racial inequalities are reproduced in the present and the law’s role in this reproduction. As essentially a political- economic theory, it is particularly useful to draw connections between legal doctrine and the market economy. It stands in contra- distinction to the dominant classical and neoclassical economic theory embedded in contract doctrine. (P. 10.) Continue reading "Seeing Contract Law through Racial Capitalism"

LGBTQIA+ Pride, 2022: The Story of the Columbus, Ohio #BlackPride4, Five Years On

Zane McNeill & Kyra Smith, Whose Pride Is This Anyway? The Quare Performance of #Black Pride4in The Palgrave Handbook of Queer and Trans Feminisms in Contemporary Performance 203 (T. Rosenberg, et al., eds., 2021).

On June 17, 2017, a small group of queer Black trans protesters and allies blocked my hometown’s pride parade. The plan was to “silently block[] the [Stonewall Columbus Pride] parade for seven minutes to hold space for Black and brown queer and trans people.” The seven minutes corresponded to the seven bullets police officer Jeronimo Yanez fired at Philando Castile at close range, killing him, an act Yanez was charged for, but acquitted of the day before Columbus Pride. Nothing like those seven bullet minutes passed before Columbus police swiftly and forcefully stopped the protest, arresting “four Black queer and trans folks” on various charges. Those arrested became famous as the “Black Pride 4.”

Five years later, the Black Pride 4’s protest—along with pride-timed and other protests elsewhere, and marches, conversations, and community work in their wake—has precipitated a reckoning in Columbus’s and other LGBTQ communities across the nation. LGBTQ individuals and leaders—not themselves queer, Black, or trans—and many LGBTQ organizations are finally grappling with the violent realities and material privations queer Black trans people regularly suffer, along with whether and how to center queer Black trans people and their liberation as key to LGBTQ politics.

Despite the path the Black Pride 4’s 2017 Columbus Pride protest has forged inside LGBTQ communities, it has not generated widespread academic engagement—yet. Zane McNeill and Kyra Smith’s Whose Pride Is This Anyway? The Quare Performance of the #Black Pride 4 promises to help change that. Continue reading "LGBTQIA+ Pride, 2022: The Story of the Columbus, Ohio #BlackPride4, Five Years On"

Liability without Wrongdoing

Rebecca Stone, Private Liability without Wrongdoing, __ U. Toronto L.J. __ (forthcoming 2022), available at SSRN (Oct. 19, 2021 draft).

Rebecca Stone’s fascinating and superb Private Liability without Wrongdoing addresses a fundamental question: What is the relationship between moral wrongdoing and private law liability?

On the face of it, moral wrongdoing is neither necessary nor sufficient for private law liability in common law jurisdictions.

Not necessary, one might think, because exacting, objective, “reasonable person” standards result in liability when the legal duty-bearer could not have acted otherwise. Further, private law rights and duties are insensitive to background distributive injustice. Therefore, one might think that if a homeless person agrees to pay a high rent to a wealthy landlord for shelter, the homeless person would not morally wrong the landlord if the person breached the legal duty created by the agreement.

And, less disputably perhaps, moral wrongdoing is insufficient: adultery is plausibly morally wrong, but, these days, does not attract private law liability. Consider, too, the wrong of failing to conduct the easy rescue of a drowning stranger because of a concern for spoiling one’s new shoes. Such an omission is generally not actionable in the private law of common law jurisdictions.

How should a philosopher of private law respond to these facts? Continue reading "Liability without Wrongdoing"

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