Yearly Archives: 2023
Sep 1, 2023 Leslie KendrickTorts
Gregory Keating,
Irreparable Injury and the Limits of the Law of Torts in 2
Oxford Studies in Private Legal Theory 185 (Paul B. Miller & John Oberdiek eds. 2023), available at
SSRN (Dec. 8, 2022).
Gregory Keating’s absorbing and insightful new article, “Irreparable Injury and the Limits of the Law of Torts,” surveys familiar territory from a distinctive vantage. As he does in his recent book, Reasonableness and Risk, Keating invites us to reconsider the fundamentals of what tort law is for and what reasonable care looks like. In this paper, he presents these questions through a central motivating problem: reparation is one of the central goals of tort (some would say its only goal), but in many cases, “tort reparation is not fully up to its assigned task.” (P. 1.) In particular, serious physical injury and death are two harms that tortious wrongdoing may inflict but the tort system cannot repair.
Keating argues that this problem finds its clearest expression in cases of premature death. (P. 3.) He observes that common-law tort failed to address the death of plaintiffs at all, and to the extent that tort suits address it today, they do so through statutory survival and wrongful death actions. (Pp. 4-5.) Even then, generally speaking, neither action compensates for the specific harm that occupies Keating: the harm of no longer being alive. Survival and wrongful death actions may account for financial resources lost on account of tortious premature death, and loved ones may receive recompense for their own emotional harms, but hedonic damages—damages for pain and suffering or loss of enjoyment of life—are generally available only for the period in which an injured plaintiff was alive. They are not typically awarded to the dead. (P. 5.) Continue reading "What If a Moral Theory of Tort Requires Deterrence?"
Aug 31, 2023 Geovanna MedelProperty
Today’s dominant narratives of American advancement present urbanization as progress and rural America as a wasteland. The misconception of rural decay helps rationalize rampant labor and resource exploitation and slows the nation’s ability to respond to national challenges including climate change, housing inequality, and finite natural resources.
In Rural America as a Commons, Ann Eisenberg advocates reconceptualizing rural America as a common resource (“the commons”), belonging to everyone in America, including the urban majority. She adeptly centers key questions at the heart of this contentious relationship: Does rural distress warrant urban intervention and why should urbanites care? Continue reading "Rurality for All: Reconceptualizing America"
Aug 30, 2023 Scott Skinner-ThompsonTechnology Law
Brenda Dvoskin,
Speaking Back to Sexual Privacy Invasions, 98
Wash. L. Rev. __ (forthcoming 2023), available at
SSRN (March 6, 2023).
Thanks in part to the ardent work of dedicated activists and scholars, there is a growing body of law and industry self-regulation governing violations of individuals’ sexual privacy, such as the unconsented distribution of another’s intimate images online. In her thoughtful piece, Speaking Back to Sexual Privacy Invasions, scholar Brenda Dvoskin powerfully argues that a key example of such regulation—many internet platforms’ self-imposed total ban on nudity—goes too far and is in many ways counterproductive to the goals of sexual privacy. As Dvoskin explains in her effort to deepen sexual privacy legal theory and make its application more consistent with its professed values of fostering (consensual) sexual expression, any effort to completely abate the harms flowing from sexual privacy violations requires not just preventing unconsented disclosures ex ante, “but also transforming the meaning of public representations of sexuality.”
Dvoskin argues that one of the principal harms flowing from unconsented disclosures originates in the social stigma associated with nudity. If self-authorized nudity became more commonplace via deregulation, the social harm of having one’s body seen might be decreased (albeit not eliminated). Put succinctly by Dvoskin, “[p]ublic representations of sex are an essential tool to destabilize the meaning of unwanted exposures and, in turn, reduce the harms experienced by victims of privacy losses.” As conceptualized by Dvoskin, diminishing the negative social meaning ascribed to nudity reduces the power of privacy invaders to inflict any harm and, in that view, is an intervention that more fully captures feminism’s emancipatory potential. Continue reading "Sexuality’s Promise for Sexual Privacy"
Aug 29, 2023 Adam ThimmeschTax Law
The fiscal federalism literature has long recognized that the mobility of capital and labor counsel toward the use of benefits taxes, like property taxes and fees, at local levels to avoid distortions in the location and amount of economic activity. The strength of this accepted wisdom on tax assignment has changed slightly since the so-called “first-generation theory” of fiscal federalism, but the general notion remains strong that local jurisdictions should not impose income taxes on local business activity, because of the risk of losing tax base. And in an era where workers and businesses are more mobile than ever, a tax on local workforces and business income would seem to be on a particularly poor footing.
In The Surprisingly Strong Case for Local Income Taxes in the Era of Increased Remote Work, Erin Scharff and Darien Shanske provide a compelling counter narrative to this accepted wisdom. In doing so, Scharff and Shanske contribute significantly to the fiscal federalism literature and to the current debates about how the ease with which labor and capital can move in the modern world should shape how governments fund their operations, both within the United States and globally. Continue reading "Taxing the Value of Being Together"
Aug 28, 2023 Nick AllardLegal History
For months I have been carrying, wherever I take my briefcase, a captivating new book of American constitutional history and analysis which offers a brilliant lens for examining American federalism. That is because whenever time permits, I want to read, reread, and think about the book’s meticulous, original, deep research and the illuminating insights that the author has packed neatly within his single volume. My near constant companion has been Christian Fritz’s fascinating and exquisitely timely Monitoring American Federalism: The History of State Legislative Resistance. His book addresses in a fresh and comprehensive way the great unsolved conundrum of the founding of our republic: how America’s unprecedented theory of a federal system of dual sovereigns, involving national and state governments which are both empowered by the citizens of overlapping geographies, can and should work in practice.
Monitoring American Federalism is a rich source that likely will become an essential text about the distribution and exercise of constitutional powers for scholars and educators who are experts in the subject matter. Yet it also is accessible to a broader audience of readers, including those who wish to be better informed while navigating real contemporary questions about balancing federal and state power. This latest book by Professor Fritz, in my opinion, is a must-read for those interested in examining, questioning, teaching, judging, upholding, and more fully grasping the constantly evolving complexity of our brilliantly conceived but flawed, cantilevered, self-correcting constitutional democratic form of limited representative government, a model of government which depends upon the informed consent of the governed. Continue reading "The Unfinished Symphony of American Federalism"
Aug 14, 2023 A. Michael FroomkinJotwell
Jotwell is taking a short summer break. We’ll be back on Monday, Aug. 28. However, even while we’re on break, we’ll be accepting submissions, editing them, and updating various technical parts of the site.
Meanwhile, this is good time to ask you to please help support Jotwell; your donation, however small, helps demonstrate the breadth of support for the enterprise. Also a reminder that you can subscribe to Jotwell and receive the full text of all postings either via RSS or via email.
If you like Jotwell, share — help us find more readers. Tell a friend about Jotwell. And if you are an academic reader, please consider recommending Jotwell to your students. We have a Jotwell Orientation Flyer for students that you can print out and post, or perhaps even hand out at Orientation.
See you in two weeks, when we start the new academic year.
Aug 11, 2023 Kristina NiedringhausLexLibrarianship and Legal Technology
Any law librarian who works with the public or teaches no- or low-cost legal research, or any attorney or law student using free resources to conduct research understands the wide gap in usability between fee-paid databases and most free, open-access legal resources. Focusing on statutory code research, Professor Darvil’s article, Increasing Access to Justice by Improving Usability of Statutory Code Websites, examines the need not just for access to statutory codes, but providing the information in a way that allows the user to find the law they need. Through the lens of website usability standards, Professor Darvil assesses state code websites and provides recommendations for how those websites can improve usability. Many states have created “Access to Justice” initiatives and commissions aiming to improve citizen access and experience with the legal system. Professor Darvil’s recommendations provide excellent guidance for those interested in improving the research experience and access to the law for everyone, including those without access to fee-based databases such as Lexis or Westlaw.
Inevitably, my legal research students are, at some point in the semester, treated to my soapbox speech about how equitable access to the legal system rests on the ability of any citizen, regardless of means, to access the law they are obligated to live under. If states care about access to justice issues, logically they must care about how they provide access to the law. Professor Darvil’s article provides an excellent discussion of the access to justice issues endemic in a legal system in which, particularly on the civil side, many litigants are self-represented and how those litigants are impacted, frequently negatively, by their inability to find the law. Continue reading "Access to Justice Requires Usability, Not Just Open Access"
Aug 10, 2023 Nora Freeman EngstromLegal Profession
In Should Prosecutors Be Expected To Rectify Wrongful Convictions?, Bruce Green makes a compelling argument for why the titular question should be answered with a resounding “yes.”
To understand what is at stake, it’s best to start with a few statistics:
The National Registry of Exonerations identifies more than 3,000 wrongly convicted individuals who have been exonerated since 1989—likely a tiny fraction of the innocent men and women who have been made to serve time. Black individuals are up to 19 times more likely to be wrongly convicted of certain crimes than their white counterparts. Also chilling, “official misconduct”—most often involving the concealment of exculpatory evidence by prosecutors or their investigators—is present around 40% of the time. Continue reading "Innocence, Integrity, and Rule Reform"
Aug 9, 2023 Barbara LevenbookJurisprudence
Many readers are aware that arguments by Ronald Dworkin (in particular, his argument from theoretical disagreement) and by various persons claiming that social practices cannot be normative challenge the idea that law is founded on a social convention. More than forty years ago, Gerald Postema attempted to meet these objections with a Humean-Lewisian account of foundational legal convention. Marcin Matczak contends that another, virtually overlooked, and radically different account of conventions can surmount these objections. That account can be found in the works of Ruth Millikan. Millikan’s account, he argues, can ground a foundational-convention theory of law while avoiding the pitfalls of a Lewisian account of conventions.
Matczak’s first and most developed point is that, using Millikan, arguments from the contestability of conventions (i.e., from disagreement) do not undermine the claim that legal systems rest on a foundational convention for recognition of valid law. This conclusion follows from three surprising features of Millikan’s account of conventions: (a) neither universal nor general compliance is required for a type of convention suitable for law, (b) participants need not have mutual expectations, know others’ intentions and preferences, or be aware of the purpose of a convention, and (c) conventions do not set prescriptive rules governing future conduct. These three features fly in the face of a number of orthodoxies about conventions in general or legal conventions in particular. Nonetheless, I find them appealing. Continue reading "A New Way to Rescue the Idea that Law Has a Foundational Convention"
Aug 8, 2023 Michael W. CarrollIntellectual Property Law
Within the field of intellectual property law, there are not too many legal or economic developments that would qualify for an event study. But, on July 1, 2021, such an event occurred when a new rule issued by the National Collegiate Athletic Association (NCAA) took effect. Prior to that date, intercollegiate athletes were prohibited from exercising their right of publicity or any other rights in their name, image, or likeness (NIL) to endorse products, services, or businesses in a commercial manner. Under the rule change, these athletes, numbering nearly 500,000 at the time, suddenly became free to license or otherwise use their NIL rights commercially, and a new market was suddenly born.
In The NIL Glass Ceiling, Professor Boston explains how the market for intercollegiate NIL rights has quickly evolved in a way that provides these athletes with long-denied revenue but with disparate outcomes for athletes who identify as men or women. She argues that these disparities are problematic both because female athletes should be entitled to a greater share of the revenue in this market and because these disparities send an unwelcome message to female athletes about the state of gender equity in intercollegiate athletics and in the workplace. She argues that more gender-equal outcomes could arise if schools were subject to scrutiny under Title IX, applicable Department of Education regulations under Title IX, and NCAA rules that govern certain third-party support for intercollegiate athletic programs in the case of disparities in NIL revenues paid by certain third parties directly to athletes. Continue reading "Gender Equity in the Market for Collegiate Name, Image, and Likeness Rights"
