Yearly Archives: 2022
May 13, 2022 Brooke D. ColemanCourts Law
Danya Shocair Reda,
Producing Procedural Inequality Through the Empirical Turn, 94
U. Colo. L. Rev. __ (forthcoming, 2023), available at
SSRN.
Data is all the fashion, not just in the legal academy and other academic disciplines, but in our daily lives. We have been glued to COVID-19 statistics to make decisions about whether to wear masks, send our kids to school, or take that rescheduled trip. While these graphs and statistics have been helpful, they have not been without controversy. The pandemic has brought into full relief how data can be manipulated, misunderstood, and even misleading.
Danya Reda’s Producing Procedural Inequality Through the Empirical Turn questions and critiques how data is gathered and used in another important context—the federal civil rulemaking process. Reda’s prior work has contributed to how we think about the civil justice system and the rules that govern it. She has shown that elite lawyers and judges constructed and marshalled a cost-and-delay narrative that affects the civil rulemaking process. She has interrogated the effect of casting the rulemaking process as political. In this article, Reda takes her critique a step further by arguing that the rulemakers’ attempts at neutrality—and their attempts to keep the process “neutral” using data—distort the rulemaking process and deepen systemic inequality. Continue reading "Data-Driven Procedural Inequality"
May 12, 2022 Ifeoma AjunwaTechnology Law
Amanda Levendowski,
Resisting Face Surveillance with Copyright Law, 100
N. C. L. Rev. __ (forthcoming, 2022), available at
SSRN.
One prevailing feature of technological development is that it is not sui generis. Rather, new technologies often mirror or reflect societal anxieties and prejudices. This is true for surveillance technologies, including those used for facial recognition. Although the practice of facial recognition might be positioned as a type of convincing evidence useful for identifying an individual, the fact remains that racial and gender biases can limit its efficacy.. Scholars such as as Timnit Gebru and Joy Buolawmini have shown through empirical evidence that facial recognition systems, which are often trained on limited data, display stunningly biased inaccuracy. The two AI researchers reviewed the performance of facial analysis algorithms across four “intersectional subgroups” of males or females featuring lighter or darker skin. They made the startling discoveries that the algorithms performed better when determining the gender of men as opposed to women, and that, darker faces were most likely to be misidentified.
In her path-breaking article, Resisting Face Surveillance with Copyright Law, Professor Amanda Levendowski identifies these harms and others, and advocates for the proactive use of copyright infringement suits to curb the use of photographs as part of automated facial surveillance systems. First, Levendowski illustrates why the greater misidentification of darker faces by algorithmic systems is a problem of great concern. Levendowski shares the story of Robert Julian Borchak Williams who was placed under arrest in front of his home and in view of his family. A surveillance photograph had been used to algorithmically identify him.. However, once the photograph was compared to the actual person of Mr. Williams, it was obvious that he had been misidentified. The only explanation Mr. Williams got was, “The computer must have gotten it wrong.” The sad reality is that Williams’ case is not unique, there are many more stories of Black men being wrongfully arrested based on misidentification by AI systems. Given the glacial creep of federal legislation to regulate face surveillance, Levendowski advocates for turning to the copyright tools she believes we already have. Continue reading "Confronting Surveillance"
May 11, 2022 Nadia SawickiHealth Law
Contemporary discussions of the law and ethics of informed consent to medical treatment tend to focus on the process of information communication, including the scope of the disclosures physicians are required to make, and the ability of patients to truly understand those disclosures and integrate them into their medical decision-making. Without dismissing the importance of communication and understanding in securing consent to treatment, Prof. Megan Wright’s article, Resuscitating Consent, directs the reader’s attention to a fundamental concept that seems to have been overlooked as the law and practice of informed consent have developed. Namely, that the principle of patient autonomy upon which informed consent doctrine is based has a corporeal – not just cognitive – component.
Prof. Wright wisely reminds readers that respect for bodily integrity was a foundational principle in the development of autonomy-based legal protections for patients. However, evidence suggests that health care providers in acute care hospitals are willing to violate this principle by imposing medical treatment against contemporaneous patient objections. Prof. Wright argues that all patients – not just those deemed to have decision-making capacity – have an absolute right to refuse treatment as a matter of bodily autonomy. “[P]atients,” according to Prof. Wright, “continue to have bodily integrity interests that should be respected even if they acquire decisional impairments and are deemed incapable of autonomy understood as capacity for rationality.” Contemporary U.S. law, however, fails to adequately protect these interests, and this article offers several compelling recommendations for addressing this issue. Continue reading "Autonomy as Corporeal, Not Just Cognitive"
May 10, 2022 Kim BrooksTax Law
I love everything about this book book, Tax Cooperation in an Unjust World, by Allison Christians and Laurens van Apeldoorn. It’s short, it’s readable, there’s no mystery about the point (and the authors don’t belabour it), and it’s important.
The main claim: our international tax system has justice at its heart. And when we fail to attend to its justice consequences, we enable states with great wealth to “facilitate[] and feed[] off continued human suffering.” (P. 1.) Continue reading "The International Tax System is There to Achieve Justice"
May 9, 2022 Shelley Ross SaxerProperty
In his recently published book, Regulatory Takings After Knick, Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes, David Callies supplies an instructive overview of the Supreme Court’s framework for analyzing regulatory takings challenges. In so doing, he turns his attention to one of the most significant land use decisions in decades, Knick v. Township of Scott, Pennsylvania.
Nearly 100 years after its Pennsylvania Coal v. Mahon decision, the Court in Knick overruled a portion of the ripeness test for takings claims it established in Williamson Co. v. Hamilton Bank in 1985. The Knick decision eliminated the ripeness hurdle, pursuant to which, a landowner had to litigate an inverse condemnation claim in state court and have the court deny just compensation before suing in federal court. Knick left in place the finality requirement from Williamson Co., which requires a litigant to obtain a final decision from the relevant government entity before bringing a takings claim. Continue reading "The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions"
May 6, 2022 Brian FarkasLexInternational Arbitration
It’s already cliché, but worth saying anyway: The pandemic has shaken the entire legal industry. Much has been written about how the “new normal” has upended court systems, client advocacy, lawyer training, and so much more. From senior partners managing their firms virtually, to nervous 1Ls taking their introductory courses over Zoom, no corner of our tradition-bound profession has been spared from disruption.
But one slice of the industry was better prepared than most. In her comprehensive article in the Cardozo Journal of Conflict Resolution, Arbitration in the Age of COVID, Professor Amy J. Schmitz describes how private dispute resolution has met this moment. She also identifies important unresolved issues that scholars and practitioners must address as the legal world adapts to virtual adjudication. Continue reading "Zoom Arbitration"
May 5, 2022 Francesca BartlettLegal Profession
Across the world, millions of women experiencing violence and coercive control by an intimate partner turn to the law for help. Lawyers and justice systems ill-equipped to deal with this complex issue are often accused of missing, and even compounding, harms. Heather Douglas’s Women, Intimate Partner Violence, and the Law documents her study of this phenomenon. Her book is based on the results of a four-year study in which she conducted up to three interviews (n =178 interviews in total) with 65 female survivors of intimate partner violence (IPV) in Australia. Douglas sought survivors of differing backgrounds. All of the women Douglas interviewed had experienced a range of abuse from their partners, with 85% experiencing physical violence, and all some form of emotional or psychological abuse. For most of the women, the abuse continued after they left their partners, often during the study and in their interactions within the legal system. Financial abuse through actions that compound the cost of accessing the law emerges as a key theme.
Applying a feminist methodology, the book tells extended stories of women experiencing IPV. Through the perspectives of these women, the book provides a comprehensive overview of the system they encounter (child protection services, policing, courts, lawyers, and judges). The system-wide insights of this very well researched book cannot be canvassed here. Rather, this review considers the IPV survivors’ perspectives on Australian lawyers’ work. Douglas’s longitudinal approach provides an opportunity to hear how the women “construct their narratives about their interaction with the legal system and its actors and how this changes over time.” (P. 13.) What we read are “journeys [that] were harrowing, long, and expensive” (P. 2) and stories that illustrate the “messiness of the law.” (P. 6.) For example, Alex (not her real name) carefully recorded that she was required to attend civil and criminal courts on 31 occasions over a 6-month period. (P. 65.) The trauma experienced by Alex and many other women is exacerbated by the actions of their partner in filing unmeritorious applications, appeals or causing excessive delays through adjournments. The interviewees saw these as tactics motivated by a wish to control and abuse–“The courtroom is his playground,” Sandra said. (P. 166.) Douglas describes this as the “weaponization” of the legal system. (P. 182.) Continue reading "Weaponizing The Law and the Cost of Lawyers in Intimate Partner Violence Actions"
May 4, 2022 Maya ManianConstitutional Law
David S. Cohen, Greer Donley, and Rachel Rebouche,
The New Abortion Battleground, 122
Col. L. Rev. __ (forthcoming 2022), available at
SSRN.
The Supreme Court appears poised to overrule fifty years of precedent holding that pre-viability prohibitions on abortion are unconstitutional. In a leaked draft opinion of Dobbs v. Jackson Women’s Health Organization, Justice Alito proclaims that Roe v. Wade and Planned Parenthood v. Casey must be overruled and abortion left to the states to regulate. During oral argument in Dobbs, Justice Kavanaugh suggested that overturning Roe would return the Court to a position of “neutrality” on abortion. Justice Kavanaugh’s assertion falls in line with claims by anti-abortion jurists that reversing Roe would simplify abortion law by returning the issue to the states and getting the federal courts out of the hot-button issue of abortion.
In their draft article The New Abortion Battleground, forthcoming in the Columbia Law Review, David Cohen, Greer Donley, and Rachel Rebouche thoroughly disprove the notion that abortion law will become simpler if and when the Court overturns Roe. Given increasingly pitched polarization between red and blue states, the authors show how the abortion wars will continue in the federal courts—but will shift from constitutional battles over fundamental rights to liberty and equality to fights over principles of federalism and interstate comity raised by interjurisdictional conflicts between states and between the federal government and the states. The article is a must read for scholars and legal advocates preparing for the aftermath of the Supreme Court’s decision in Dobbs.
Continue reading "Interjurisdictional Abortion Wars in the Post-Roe Era"
May 3, 2022 Taisu ZhangLegal History
In more ways, than one, Henry Smith’s Equity as Meta-Law is an awkward fit for JOTWELL: the site, as I have long understood it, has an implicit focus on the work of emerging scholars, not very well-established ones. Moreover, the article does not easily fit into any of the subfields that JOTWELL disaggregates legal scholarship into: on the one hand, while there is quite a bit of legal history in the article, its ultimate goals are arguably more normative than explanatory or descriptive. On the other hand, it is much more historically oriented than mainstream jurisprudence, including mainstream law and economics theory. Substantively, its subject matter—equity—inevitably takes it on a tour of multiple legal domains, ranging from property to torts to contracts to procedure, but commits it to none. The best categorization of the article is probably “private law theory,” but there is no JOTWELL classification for that.
Nonetheless, the article deserves some discussion in these (web)pages simply because it is probably the most important article on private law to come out in the past few years, and will likely set the stage for numerous rounds of discussion and extrapolation in the years to come. It is one of those foundational articles that only come around once every so often. Continue reading "Meta-Law Institutions and Substantive Predictability"
May 2, 2022 Maris KöpckeJurisprudence
Perhaps it was the French Revolution that set it free. Since then, it haunts constitutional thought. It lures writers through a dubious promise of democratic credentials. It looms large in recent accounts of constitutional legitimacy. They have sought to “domesticate” (Pp. 796, 803; also P. 810) the beast by subjecting it to liberal and democratic constraints. But the beast resists such domestication, argues the paper. Appeal to constituent power as the source of constitutional legitimacy is deeply at odds with constitutionalism’s commitments to rights and the rule of law. One cannot both have the cake and eat it. It is either will or reason at the foundations of law. Such is the tension the author confronts us with.
This rich and insightful piece elicits reflection on a host of fundamental questions of legal and political theory. It will interest you whether you are concerned with the limits of democracy, the bootstrapping character of basic legal rules, principles of constitutionalism, or even the nature of self-determination and autonomy. It is accessible without specialist knowledge of constitutional theory. The work is more revolutionary than its title suggests. Crudely put, “Inherent Constraints on Constituent Power” argues that there are no inherent constraints on constituent power, and provides reason to think that there is no constituent power either. Let me explain. Continue reading "The Beast of Constituent Power"
