Yearly Archives: 2024
Nov 4, 2024 Christopher W. SchmidtLegal History
In The Taft Court: Making Law for a Divided Nation, 1921–1930, the latest addition to the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Robert Post offers a masterclass of legal analysis and historical scholarship. Admirers of Post’s scholarship will find in this book yet more evidence of his rare skill for illuminating the nuances of legal doctrine and identifying the social forces and ideas that explain and animate that doctrine. The Taft Court also gives Post an opportunity to demonstrate his equally admirable skill at synthesizing massive amounts of research material into an engaging and compelling historical narrative—no small an achievement for a volume that comes in at over 1500 pages.
How does he pull off the trick of making a lengthy, serious work of scholarship an inviting experience for the reader? It helps that Post writes so clearly, even when navigating complex areas of the law. He also leans into the biographies of the members of the Taft Court, crafting subtle, sensitive portraits of not only the famous justices, such as Holmes, William Howard Taft, and Louis Brandeis, but also the infamous (the irascible racist James McReynolds) and those who have been largely forgotten. No one is better than Post at the difficult task of connecting biography and jurisprudence. Continue reading "A New History of a Court Divided"
Nov 1, 2024 Sean CoyleJurisprudence
This brilliant and highly interesting essay examines the nature of polities that place central emphasis on the rule of law and thereby upon the language of rights, a language which “smothers and extinguishes” alternative forms of ordering. (P.553.) In doing so, the language of rights erodes its own foundations, leading to a society of no rights but instead of technocratic reasoning. Rights are peremptory. Simmonds describes the sharp distinction between human goods (e.g. it would be good to do x) with rights(I have a right to do x). The distinction is not metaphysical but the result of artifice that underpins our familiar form of association. (P.553.) This does not exclude those aspects of human flourishing that are better understood in terms of goods, values, or interests, where peremptory reasoning gives way to weighing and balancing. In setting out the issue in this way, Simmonds puts a significant new perspective upon arguments he has been advancing for some time: the relationship of rights to ordinary forms of human activity, the mutability of rights discourse, and a preference for the will theory of rights over the interest theory.
Simmonds is appalled by recent trends in constitutional law, which mistake the relative importance of rights for their peremptory force. Where such force is eliminated in favour of questions of importance or proportionality, the traditional hallmarks of legality and legitimacy are significantly eroded. (P.556.) Simmonds returns to this theme at a later point in the article. Continue reading "An Epoch of Rights"
Oct 31, 2024 I. India ThusiEquality
The Thirteenth Amendment provides, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Professor Adam Davidson examines the Thirteenth Amendment’s Except Clause in his article, Administrative Enslavement.
Recent attention to the harms of mass incarceration and mass criminalization has included scrutiny of the Except Clause with many critics concerned that it permits the enslavement of incarcerated people. However, Davidson’s critique is a little different than the more common, wholesale disavowal of this clause. Davidson examines how courts have interpreted this clause, critiquing their reimagination of forced labor as merely a prison administrative matter. Continue reading "The Administrative State of Slavery"
Oct 30, 2024 Rosalind DixonInternational & Comparative Law
In Unsealed Covers: A Decade of the Constitution, the Courts and the State, Gautam Bhatia provides a fascinating account of constitutional decision-making in India between 2014 and 2023. Building on his contributions to the Indian Constitutional Law and Philosophy Blog, Bhatia’s book offers a real-time account of cases involving the most pressing constitutional controversies in India during this period, and situates those cases in broader historical and institutional context.
Bhatia is a scholar but also an advocate, blogger, and close-up observer of Indian courts. Some might worry that this would lead to a lack of perspective on the relevant decisions and their longer-term influence on Indian constitutional law. But Bhatia is nothing if not far-sighted. He puts all the decisions discussed in the book in their broader historical context and offers insightful predictions about the future trajectory of constitutional law in a range of areas where the current doctrine is unsettled. For instance, he notes the split in lower courts on issues such as marital rape and restrictions on the wearing of the hijab (Pp. 113-31), suggesting that these issues will need to be resolved by the Court in the mid-term, and predicting—or at least hoping—that they will be resolved in favour of freedom and equality. He likewise explores current tensions in the Court’s jurisprudence relating to equality, and the battle between a substantive equality and exceptions-based view of provisions such as Art 16 of the Indian Constitution, before calling for a return to the more substantive vision articulated by the Supreme Court of India in State of Kerala v NM Thomas (1976) 2 SCC 310 (Pp. 133-34, 165.) Continue reading "A Court-Side View of the Indian Constitution"
Oct 29, 2024 Margo BagleyIntellectual Property Law
Jeanne Fromer & Mark McKenna,
Amazon’s Quiet Overhaul of the Trademark System, 113
Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (June 19, 2024).
“Yes! that’s it! that’s it!” Those were my words when I first saw the title of Jeanne Fromer & Mark McKenna’s paper, Amazon’s Quiet Overhaul of the Trademark System. I was sure that they had identified the culprit behind the seismic shifts in trademark law that I had sensed were taking place over the past several years. I was thrilled that they were going to put together the pieces, some of which I had personally encountered, of a bizarre and important puzzle. They did not disappoint.
Trademarks ostensibly exist to reduce consumer search costs and protect the goodwill brand owners generate in their source-identifying marks (as associated with particular goods or services). They do this by being distinctive, with fanciful (made-up words like “Exxon”) and arbitrary marks (e.g., “apple” for computers) receiving the strongest protection, and, along with suggestive marks (e.g., “Coppertone” for sunscreen), being deemed inherently distinctive, while descriptive marks (e.g., “Honey-baked Ham” for ham with a sweet glaze) may acquire distinctiveness. Generic terms, the common name for a product (e.g., “apple” for apples) are not protectible as trademarks, because other product sellers need to be able to use the common names of goods for their own products. This last restriction reflects trademark law’s concern with the preservation of competition in the marketplace. Continue reading "Fraud, Delays, and Nonsense (Marks) . . . Oh My!"
Oct 28, 2024 Maya ManianHealth Law
Robyn M. Powell,
Disabling Abortion Bans, 58
U.C. Davis L. Rev. __ (forthcoming), available at
SSRN (April 5, 2024).
In the U.S. Supreme Court’s recent decision in Moyle v. United States, the Court punted (until after the November 2024 election) on the question whether EMTALA (the Emergency Medical Treatment and Active Labor Act) preempts state abortion bans that fail to include an exception for emergency abortion care necessary to protect a pregnant patient’s health. EMTALA is a federal law mandating that hospitals receiving federal Medicare funds provide stabilizing treatment to protect a patient’s health for any individual arriving at an ER with an emergency medical condition. The ongoing litigation in Idaho, and other well-publicized cases in Texas, have spotlighted the public health crisis caused by post-Dobbs abortion restrictions especially with regard to health exceptions. Moyle leaves in place, at least for now, total bans on abortion without EMTALA’s protections in Texas and other states.
In her draft article, Disabling Abortion Bans, Robyn Powell focuses on the impact of stringent abortion bans on people with disabilities. She examines the adverse health effects of narrowly defined health exceptions, particularly on patients with chronic illnesses, including mental health conditions—serious health concerns that have been largely overlooked in litigation over health exceptions. While media attention has been primarily focused on women with urgent pregnancy complications unable to obtain emergency abortion care, less attention has been paid to individuals with chronic conditions or mental health issues who need abortion care but might not qualify for “emergency” abortion care under EMTALA or narrowly crafted health exceptions. Continue reading "Centering Disability Rights in Challenges to Abortion Bans"
Oct 25, 2024 Sarah WaldeckTrusts & Estates
In Confusing Cy Près, Christopher J. Ryan, Jr. examines judicial decision-making in cases involving proposed modifications to charitable trusts. Two doctrines permit modification: equitable deviation and cy près. Ryan uses a comprehensive data set—over 1,300 cases between the years of 1820 and 2019—to explore when courts are likely to apply the doctrines and, critically, when courts confuse them. His research reveals that courts routinely use equitable deviation when they should use cy près and, tantalizingly, suggests that the Uniform Trust Code is at least partially responsible. Ryan’s empirical work also sheds light on when courts are most likely to modify charitable trusts.
Doctrinally, equitable deviation and cy près are straightforward. Equitable deviation allows a court to modify the administrative terms of a trust—what Ryan describes as “the little details of how [the trust] is run and controlled.” (P. 30.) Cy près allows a court to modify “the dispositive and material terms of the trust (i.e., the purpose of the trust, the charitable cause the trust addresses, and the delivery of the trust assets to the intended beneficiaries).” (P. 30.) Both doctrines require a change in circumstances that negatively affects the trust. For equitable deviation, the change in circumstances must impair the functioning of the trust in a way that threatens the trust’s very purpose. For cy près, the change in circumstances must make the trust’s specific purpose impracticable, impossible, or illegal, and the settlor must have manifested a charitable intent that is more general than the specific purpose that has become unsustainable. Continue reading "Unexpected Twists in the Modification of Charitable Trusts"
Oct 24, 2024 Rachel RebouchéFamily Law
Reva B. Siegel & Mary Ziegler,
Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, __
Yale L. J. __ (forthcoming), available at
SSRN (March 18, 2024).
In Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, Professors Reva Siegel and Mary Ziegler demonstrate how the anti-abortion movement’s effort to reinvent the Comstock Act (1873) as a national abortion ban lacks historical, legal, and democratic legitimacy.
The Act originated as an obscenity statute that criminalized “any article or thing designed or intended for the prevention of conception or procuring of abortion” or for “an indecent or immoral purpose.” Comstock revivalists, to borrow Siegel and Ziegler’s term, claim that the Act’s prohibition on mailing “any article or thing” bans the transit, in the U.S. mail, of all materials connected to abortion care—pills, equipment, or most anything else. Revivalists argue that courts should begin enforcing the Act to ban abortion nationwide, and some judges appear sympathetic to those arguments. In litigation described below, a federal district court and an appellate circuit court cited the Comstock Act in deciding to suspend FDA approval of medication abortion or to reimpose restrictions on it. Continue reading "The Radical Reinvention of the Comstock Act"
Oct 23, 2024 Maartje van der WoudeCriminal Law
In her article-based dissertation, Unravelling Unauthorized Migrants’ Legal Consciousness Processes, Mieke Kox provides a comprehensive and empathetic examination of the intricate relationships between unauthorized migrants and the legal systems that govern their lives. This work is a significant contribution to the field of crimmigration—a term that captures the intersection of criminal law and immigration law—highlighting the lived experiences of unauthorized migrants in the Netherlands. Legal scholars, particularly those focused on crimmigration, will find Kox’s ethnographic approach and insights invaluable for understanding the often-overlooked human dimensions of immigration law and enforcement.
Kox’s dissertation stands out for its unique ethnographic research, which sheds light on the personal and often harrowing experiences of unauthorized migrants. By documenting these experiences, Kox offers a critical perspective on how legal frameworks and immigration policies impact individuals on a daily basis. This perspective is crucial for legal scholars who aim to develop more humane and effective immigration policies. Kox’s work challenges the reader to consider the moral and ethical implications of current immigration laws and practices, making it an essential read for those engaged in the crimmigration debate. Continue reading "The Human Impact of Crimmigration"
Oct 22, 2024 Suzette M. MalveauxCourts Law
In the United States, we are taught from an early age that we have a “right to our day in court.” This right to access the civil justice system is drilled into many of us as a given, something as American as apple pie. Yet upon further reflection, it is clear that this proverbial right has been tempered by forced arbitration. Most workers and consumers across the country cannot be heard by a jury of their peers in a free, public, transparent forum subject to appellate review, procedural guardrails, and substantive rights. Instead, anyone wanting a job, cell phone, bank account, you name it, is forced to use a private dispute resolution system to challenge their employer, landlord, retailer, by themselves and in secrecy.
Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should also be exempt from compulsory arbitration. Continue reading "Leveling the Playing Field for Racial Justice in the Civil Litigation System"
