Monthly Archives: September 2024
Sep 30, 2024 Allison Brownell TirresLegal History
Dov Fox & Mary Ziegler,
The Lost History of “History and Tradition,
” 98
S. Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (May 5, 2024).
With its decision in Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overruled five decades of precedent guaranteeing a constitutional right to abortion, on the basis that such right was not supported by “history and tradition.” The Court has utilized this same rationale in other recent high-profile, and highly controversial, rulings. Conservatives on the Court claim that the lens of “history and tradition” is neutral, objective, and apolitical, unlike other modes of constitutional interpretation.
Many constitutional law scholars and legal historians are skeptical, to put it mildly, of the “history and tradition” approach. They argue that this method is just as susceptible to subjectivity and political manipulation. After all, whose history will one take into account, and what traditions? When does the historical query begin, and when does it end? The Court’s conservative turn has spurred a proliferation of scholarly work that challenges or seeks to reframe the judiciary’s use of history in constitutional interpretation. In a thought-provoking addition to this canon, Dov Fox and Mary Ziegler ask us to consider the history of the “history and tradition” test itself, to fascinating result. In The Lost History of “History and Tradition,” they demonstrate how the Court’s recent formulation of the test is just that: an intentional reframing of an interpretive tool that, in various forms, has been used by courts at least since the late nineteenth century. Continue reading "Entrenched or Evolving? “History and Tradition” in Constitutional Jurisprudence"
Sep 27, 2024 Jessica SilbeyIntellectual Property Law
Guy Rub,
Reimagining Digital Libraries, 113
Geo. L.J. __ (forthcoming, 2024), available at
SSRN (Feb. 19, 2024).
Do you ever wonder how it is that libraries can lend books repeatedly, while copyright owners (e.g., book authors) are granted the exclusive right to distribute their copyrighted works? Or how publishers make money selling books at retail prices when a person can resell books (or buy used books) for much less (hello Amazon Used Books for under a dollar!)? The reason is because of copyright’s “first sale” doctrine, 17 U.S.C. § 109, codifying the common law’s exhaustion principle, which says owners of lawfully made copies are allowed to dispose of those copies without regard to copyright law. In other words: the right to distribute is “exhausted” with the first sale. This means we can resell, lend, or give away our books. What we can’t do is make copies of them.
And that is where the concept of “digital lending” runs headlong into copyright law. When libraries buy books, they can lend them without restrictions. When libraries lend e-books, those e-books come with contractual provisions limiting their lending in substantial ways because reading an e-book requires making a copy, which is not exhausted by the first sale doctrine. As the Supreme Court has said (in the patent context, which has a similar first sale principle): “exhaustion applies only to the particular item sold, and not to reproductions.” Continue reading "How Do You Like your Books?"
Sep 26, 2024 Amy MonahanHealth Law
The Affordable Care Act (the “ACA”) has had a somewhat tortured existence since its enactment in 2010. In The Ghosts of the Affordable Care Act, Professor Gabriel Scheffler tells the compelling story of the various ways in which this massive piece of social legislation has been scaled back or repealed by either Congress or the courts, and begins to offer an explanation of why the legislation was vulnerable to such attacks. More specifically, the article takes on the conventional wisdom that social programs, once enacted, are incredibly difficult to dismantle—a phenomenon commonly referred to as entrenchment. In place of this traditional story, the article makes the case for “enactment-entrenchment tradeoffs.” Professor Scheffler argues that, at least in the case of the ACA, lawmakers were forced to make the law more vulnerable to future amendment or repeal in order to ensure its passage. The article not only produces a compelling historical account of the ACA’s travails, but also offers important lessons for anyone interested in social policy change through the federal legislative process.
The article begins by cataloging the various post-enactment repeals and retrenchments of the ACA’s original terms. Some of these are well known, such as the Supreme Court decision in NFIB v. Sebelius, which made the Medicaid expansion optional for states. But others have received much less attention outside of health policy circles—such as the repeal of the Cadillac Tax and the Independent Payment Advisory Board. Some lived such a short and inconsequential life that even health policy scholars are likely to have forgotten they were ever included in the first place (I am looking at you, CLASS Act). Seeing these changes catalogued in a single place presents a compelling picture of just how much the ACA has changed between 2010 and the present day. Continue reading "A Postmortem on the ACA"
Sep 25, 2024 Catherine SmithFamily Law
Toni Morrison’s Nobel Prize winning novel, The Bluest Eye, and Maia Kobabe’s Gender Queer: A Memoir, topped the list of the 2022-2023 school year’s banned books. Certain groups of parents invoke their rights to restrict their children’s access to viewpoints different from their own about history, race, gender identity, and reproductive health. Anne Dailey’s important article, In Loco Reipublicae, provides a different take: parents should have a constitutional duty to their children to expose them to ideas outside the home to prepare them for democratic citizenship.
In a salute to children’s rights, In Loco Reipublicae claims a new middle ground in a constitutional framework that has far too long abdicated to parents a “unique and near-absolute custodial authority for children’s citizenship rights.” (P. 428.) According to Professor Dailey, an expansive parental rights doctrine limits young people’s exercise of their own rights because it fails to recognize that parents have constitutional duties to their children. The article turns to children’s well-established First Amendment right to exposure to the “marketplace of ideas” as an opening salvo and a means to illustrate what could be a paradigm-shifting parental obligation to steward children on the path to becoming independent rights-holders. (P. 426.) Continue reading "In Loco Reipublicae and the Parental Duty to Expose Children to Ideas Outside the Home"
Sep 24, 2024 Elizabeth ChamblissLegal Profession
It is an exciting time for access to justice and access to justice research. Jurisdictions around the country are experimenting with new models for expanding access to legal assistance by training nonlawyer advocates and advisors to provide limited legal services in areas of high unmet need. Such models range from for-profit programs for specially trained paralegals to not-for-profit community-based programs using a variety of staffing models. Research on such programs is growing and becoming more organized, rigorous, and impactful. Finally, after decades of resistance to new categories of providers, regulators are beginning to pay attention to evidence about the limits of the lawyer-only model and possible benefits of expansion.
The question now is, how are these programs working? And what should be the criteria for assessment? How might we move beyond case-by-case, after-the-fact program assessment based on the number of intakes and outcomes and incidents of demonstrable harm, toward a more robust, comparative framework for research? Two new articles tackle these questions by proposing specific evaluative criteria, measurement strategies, and sources of data to guide researchers and policymakers in program evaluation and design. Continue reading "Evidence-Based Innovation: Criteria for Evaluating Lay Legal Assistance Programs"
Sep 23, 2024 Jennifer ChaconCriminal Law
Recent scholarship raises important questions about the rights of children in schools, about the links between schools and punitive government systems, and about how the distributive choices around education impose systemic, racialized harm. With their article The Law of Disposable Children: Interrogations in Schools, Tonja Jacobi and Riley Clafton take this conversation deep into the realm of criminal procedure, opening a window into harmful practices in school-based interrogations. The authors reveal just how vulnerable students are to coercive interrogation tactics when they are in schools and how little protection the law provides them.
The article begins with an overview of the generally impoverished state of Miranda protections, explaining the many ways the Court has limited scope of those protections in the years since the case was decided. It also contains a discussion of the Court’s recognition of the need for special protections for young people in J.D.B. v. North Carolina, the 2011 decision holding that the age of the person subject to government interrogation is a relevant factor in determining whether an individual was in custody and therefore entitled to Miranda’s protections. The authors’ discussion acknowledges the many ways that existing constitutional doctrine offers insufficient protections against coercive interrogations, especially for young people. They note that “[n]ot only is there is no Supreme Court precedent laying out any special protections for schoolchildren to protect them from coercive interrogations—as opposed to custody—there has never even been an explicit ruling by the Court detailing what standards govern the interrogations of schoolchildren or whether they are even afforded the constitutionally required minimum protections of Miranda in the school context.” Continue reading "Asking Questions"
Sep 20, 2024 Allan ErbsenCourts Law
Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Austin Peters, & Aaron Schaffer-Neitz,
Secrecy by Stipulation, 74
Duke L.J. __ (forthcoming, 2024), available at
SSRN (April 29, 2024).
Stipulated motions can be more troubling than they seem. The cooperation that leads to stipulations is a beguiling reprieve from the combativeness of litigation. Parties constantly file contested motions raising vexing questions that require judges to pick winners and losers. In contrast, stipulated motions appear simple and enable win-win outcomes. Busy judges might be tempted to grant these stipulated motions without much thought. Minimal scrutiny is tolerable if an order truly is win-win for everyone who the order affects. But if the order has collateral consequences, then a win for the parties can impose a troubling loss on the public. Rulemakers recognize that private and public interests do not always align and craft procedures to manage the incongruity. For example, Federal Rule of Civil Procedure 26(c)(1) requires judges to police self-interested parties seeking protective orders. Even if the parties agree that information obtained though discovery should remain private, judges must find “good cause” before shielding information from the public. The rule gives judges discretion to protect trade secrets and personal data while enabling disclosure of threats to public health and safety.
Secrecy by Stipulation reveals that the “good cause” requirement often fails to prevent dubious protective orders. When parties stipulate that secrecy will facilitate discovery, courts are reluctant to disrupt the agreement. The authors—Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Austin Peters, and Aaron Schaffer-Neitz—acknowledge that prior scholarship has considered the potential harms of protective orders and the need for careful judicial scrutiny. Many commentators believe that judges are side-stepping the “good cause” standard. However, a lack of data has hindered efforts to assess the frequency of stipulated protective orders and the intensity of judicial review. Critics of secrecy have relied on anecdotal accounts and empirical studies with limited scope. This evidence has not convinced rulemakers that judges are departing from the requirements of Rule 26(c)(1). Proposed reforms therefore have failed to gain traction. Continue reading "Protecting the Public from Protective Orders"
Sep 19, 2024 Evan BernickConstitutional Law
Joel Alicea,
Constitutional Theory and the Problem of Disagreement, 173
U. Pa. L. Rev. __ (forthcoming, 2024), available at
SSRN (February 27, 2024).
Joel Alicea wants to make the world a better place with constitutional theory and thinks that you should, too. More specifically: In choosing how to interpret a constitution, you ought to consult moral views which you believe to be correct, while making room for widespread social practices which aren’t entirely consistent with those views. It’s a testament to Alicea’s intellect, prudence, and rhetoric that readers are likely to be persuaded. His paper, Constitutional Theory and the Problem of Disagreement, feels less like an argument than a friendly conversation from which truth gradually but inexorably emerges.
Call to mind Raphael’s The School of Athens, depicting Aristotle and Plato in conversation. Plato gestures up, Aristotle gestures down. Both philosophers are perfectionists who believe that politics should be organized around an objective account of human flourishing. But one has his head in the realm of Forms and the other takes a more grounded approach. Alicea follows Aristotle. Continue reading "Imperfectionist Constitutional Theory"
Sep 18, 2024 Ellen BublickTorts
Of the tens of thousands of reported civil cases in Westlaw’s torts database, would it surprise you that a mere 34 opinions in the set use the word “vulva”? Even then, the term is often mentioned only as a quote from a statute, regulation, or expert testimony, or used with reference to non-human animals (baby mink). 74 cases mention the term “oocyte or ovum.” 578 mention the word “vagina.” These small numbers exist alongside 5,954 published civil cases in the database that mention “rape” or “sexual assault.” Courts use terms related to male anatomy more often than their female analogues, but only two to three times more often.
Into this gap concerning bodies and sexuality, Professor Anita Bernstein has consciously “chosen to feel inspired by this silence in the discourse.” (P. 239.) If you are feeling squeamish already, I feel your pain. We law professors, judges and lawyers are a pretty staid bunch. When Bernstein first made her unabashed presentation about semen and products liability (in that order) to a packed audience of lawyers and law professors, I will admit to wincing just a bit. Until, that is, I thought more about the strength of Bernstein’s topic and her candor, as well as the importance of precise language when addressing it. In a world of AI and big data, euphemisms such as “privates” and “reproductive tissue” (some actual substitutes in opinions and scholarship) will prevent detection, understanding and study of legal subjects that relate to sexual anatomy. Worse still, the comfortable route of skipping unmentionable topics altogether neglects needed judicial and academic scrutiny. Continue reading "Mentioning the Unmentionable Parts of Tort Law: Responding to Silence with Discourse"
Sep 17, 2024 Atinuke AdediranCorporate Law
Are corporations responsible for addressing racial inequality? In a timely and compelling examination of corporate race relations during the civil rights movement and current corporate processes and decision-making on race, Gina-Gail S. Fletcher and H. Timothy Lovelace, Jr. argue in their article, Corporate Racial Responsibility, that corporations are responsible for addressing racial inequality because they have historically been inescapably involved in it.
The authors’ historical exploration of race and corporate relations is an important contribution to scholarship. The authors show that corporate engagement in race is not new. It extends back to the time of slavery and became much more extensive during the civil rights movement. As the authors document, sit-ins at hotels, restaurants, and other segregated businesses were catalysts for the civil rights movement.
Businesses were drawn to voluntary desegregation, which was woefully unsuccessful as evidenced by accounts in cities like Birmingham, Alabama and Atlanta, Georgia. It was not until the passage of Title II of the Civil Rights Act of 1964, mandating that businesses desegregate, that change began to occur. The authors explain that this is compelling evidence that mandates succeed while voluntary action, a form of corporate social responsibility, does not. Continue reading "Civil Rights Meets Corporate Governance"
