Apr 5, 2022 Shelby D. GreenProperty
Despite their solid, lifeless guise, monuments speak. But whose stories do they relate? Recently, there has been much debate about the role and purpose of monuments; which monuments or memorials deserve protection and which ones should be removed.
In We Are All Growing Old Together: Making Sense Of America’s Monument-Protection Laws, Professor Zachary Bray, aims to help us see that the views on these issues do not align nicely between North and South, conservative or progressive. Instead, the issue is much more multi-dimensional. Continue reading "Rethinking the Role and Values of Monuments"
Apr 4, 2022 Christine BartholomewCourts Law
Personal jurisdiction is one of those legal headscratchers. Courts and commentators assume that personal jurisdiction doctrine—which delimits where a defendant can face suit—is rooted in the due process clause, imposing a constitutional limit on the reach of state authority. This means courts usually find personal jurisdiction (1) where a defendant resides, (2) where it has sufficient “minimum contacts” that closely “relate to” the litigation, or (3) where it is physically served with process. But the Supreme Court has limited this last option—“tag jurisdiction”—to individuals, not corporations. In a great new article, Patrick Borchers offers a contrary view, decoupling personal jurisdiction from due process and concluding that states can constitutionally adopt long arm statutes permitting tag jurisdiction over corporations.
The Supreme Court has struggled to articulate a workable test for personal jurisdiction. So when Ford v. Montana, a products liability case, yielded a unanimous ruling last year, it generated attention. The majority found Ford’s significant contacts relating to its car business—such as selling and servicing its cars in the forum state—sufficed for personal jurisdiction, even though the individual vehicles involved in the accidents were originally purchased elsewhere. As Anya Bernstein and I have explained, Ford clarifies that, for personal jurisdiction purposes, a defendant’s contacts with the forum state need not give rise to the particular cause of action; it is enough for the defendant’s state contacts to relate to the lawsuit’s “underlying controversy.” Continue reading "A Post Minimum Contacts World"
Apr 1, 2022 Anita KrishnakumarLexLegislation
In Legal Corpus Linguistics and the Half-Empirical Attitude, Professor Anya Bernstein provides an illuminating and forceful critique of the claim that corpus linguistics—the study of patterns of language usage across a wide array of English-language sources—should be used to “empirically” derive the ordinary meaning of words used in legal texts. Corpus linguistics has been a hot topic in statutory and constitutional interpretation for the past several years, as a growing number of judges, scholars, litigants, and amicus curiae have pressed for its use in cases that turn on the meaning of a legal term or phrase. Perhaps most notably, in an article titled Judging Ordinary Meaning Utah Supreme Court Associate Chief Justice Thomas R. Lee and his former law clerk Stephen Mouritsen have argued that the concept of “ordinary meaning” implicates empirical questions that the field of corpus linguistics is well-designed to answer—and have urged courts to “import [corpus linguistics] methods into the modern theory and practice of interpretation.”
Professor Bernstein’s thoughtful article astutely identifies several serious flaws with such an interpretive move, calling into question the push to use corpus linguistics to determine statutory or constitutional meaning and the effort to use corpus linguistics to add an empirical dimension to the search for ordinary meaning. Her central critique is that the use of corpus linguistics to determine the meaning of legal texts mismatches methods and goals. She contends, for example, that while corpus linguistics in linguistics makes an empirical claim to illuminate truths about how language in the corpus is used, the use of corpus linguistics in legal interpretation misuses empirical methods to make a normative claim—i.e., that the usage patterns identified through corpus analysis ought to influence the interpretation of legal texts. Bernstein labels this attempt to treat normative claims as empirical a “half-empirical” attitude. And she meticulously questions the assumptions underlying that claim. Continue reading "On the Perils of Using Corpus Linguistics to Interpret Statutes"
Mar 31, 2022 Amy SalyzynLegal Profession
Rima Sirota,
Can Continuing Legal Education Pass the Test? Empirical Lessons from the Medical World,
Notre Dame J. L., Ethics & Pub. Pol’y (forthcoming 2022), available at
Georgetown Scholarly Commons.
Mandatory continuing legal education (MCLE) is one of the most ubiquitous regulatory measures aimed at ensuring continuing lawyer competence. It is also one of the most critiqued. Over the past several decades, many lawyers and academics have argued that MCLE should be reformed, if not abolished. While MCLE requirements have so far largely withstood these attacks, recently, lawyer regulators seem to have developed a new appetite for doing things differently. A recent international survey of approaches to lawyer continuing competence observed, “lawyer regulators around the world have sought to improve the ability of CPD [continuing professional development] to improve competence in a number of different ways, increasingly moving away from a generic durational requirement.”
In light of these developments, Rima Sirota’s article, Can Continuing Legal Education Pass the Test? Empirical Lessons from the Medical World, is a timely contribution to the literature on lawyer regulation. Speaking of the American context, Sirota argues that “the mandatory CLE system in its current state is indefensible” given its high costs and the lack of empirical evidence suggesting that CLE leads to improved lawyer competence. (P. 3.) While others have previously made this general point, Sirota’s contribution stands out for her call to the legal profession “to take up the empirical challenge” of measuring CLE outcomes and her provision of a roadmap on how this could be done. (P. 45.) Moreover, the comparative approach taken by Sirota, which looks to the medical profession’s approach to continuing education for potential insights, provides a fresh take on long-standing concerns about MCLE in the legal profession. Continue reading "Taking Up the Challenge: A Roadmap for Studying the Effectiveness of Mandatory Continuing Legal Education"
Mar 31, 2022 Amy SalyzynLegal Profession
Rima Sirota,
Can Continuing Legal Education Pass the Test? Empirical Lessons from the Medical World,
Notre Dame J. L., Ethics & Pub. Pol’y (forthcoming 2022), available at
Georgetown Scholarly Commons.
Mandatory continuing legal education (MCLE) is one of the most ubiquitous regulatory measures aimed at ensuring continuing lawyer competence. It is also one of the most critiqued. Over the past several decades, many lawyers and academics have argued that MCLE should be reformed, if not abolished. While MCLE requirements have so far largely withstood these attacks, recently, lawyer regulators seem to have developed a new appetite for doing things differently. A recent international survey of approaches to lawyer continuing competence observed, “lawyer regulators around the world have sought to improve the ability of CPD [continuing professional development] to improve competence in a number of different ways, increasingly moving away from a generic durational requirement.”
In light of these developments, Rima Sirota’s article, Can Continuing Legal Education Pass the Test? Empirical Lessons from the Medical World, is a timely contribution to the literature on lawyer regulation. Speaking of the American context, Sirota argues that “the mandatory CLE system in its current state is indefensible” given its high costs and the lack of empirical evidence suggesting that CLE leads to improved lawyer competence. (P. 3.) While others have previously made this general point, Sirota’s contribution stands out for her call to the legal profession “to take up the empirical challenge” of measuring CLE outcomes and her provision of a roadmap on how this could be done. (P. 45.) Moreover, the comparative approach taken by Sirota, which looks to the medical profession’s approach to continuing education for potential insights, provides a fresh take on long-standing concerns about MCLE in the legal profession. Continue reading "Taking Up the Challenge: A Roadmap for Studying the Effectiveness of Mandatory Continuing Legal Education"
Mar 30, 2022 Binyamin BlumLegal History
We usually consider affirmative action (or to use the current Hebrew term, “corrective discrimination”) as a vehicle for correcting historical wrongs and achieving greater social equality. Ofra Bloch’s Hierarchical Inclusion, however, reminds us that these are not essential elements of the practices we have come to characterize as “affirmative action.” More importantly, as a historical reality this has not always been the case. Examining the Israeli example during the state’s first two decades (1948-1968), Bloch demonstrates how affirmative action in Israel was animated by very different motives. In the process, she also complicates the conventional wisdom regarding the Israeli state’s treatment of its Arab minority during the 1950s and 1960s, a period frequently referred to as “the military regime.” Whereas most have focused on armed oppression which characterized this era and property dispossession, Bloch shows how the subordination of Israel’s Arab population was often far more subtle.
Most accounts of affirmative action in Israel begin in the 1990s. Bloch, however, shows how this policy came about far earlier. Mining never before explored files from the Israeli State Archives, the Knesset (Israeli Parliament) Archive and the Labor Movement Archive, Bloch is able to trace the overlooked motives that led the Israeli government to try integrating its Arab population into the workforce (in white and blue collar jobs, in both the private and public sectors) and into higher education. Rather than resting exclusively on egalitarian ideals, the efforts were geared primarily towards four other instrumentalist objectives: maintaining security by ensuring social stability; advancing Israel’s economic prosperity; gaining international legitimacy; and courting the Arab vote. Continue reading "Beyond “Affirmative Action”: Hierarchical Inclusion in 1960s Israel"
Mar 29, 2022 Sean CoyleJurisprudence
In Reevaluating Legal Theory, Jeff Pojanowski addresses a central question of jurisprudence, that of whether a careful theory of what the law is, involves value judgments concerning what the law ought to be. (P. 1460.) In various forms, this question has been asked by philosophers from the beginning of the Western intellectual tradition. Thus, for example, Aquinas considers whether a law that is judged to be unjust (out of reasonable order) can continue to bind in conscience due to the normal authority of legal commands (Summa Theologiae I-II.95.2c; 92.1 ad 4; 96.4c). His answer is subtle and complex. Pojanowski’s article is similarly subtle and complex, and makes many useful points, though as indicated below, some of these could be taken further in future work.
Pojanowski’s article begins with a brief survey of recent responses to the central question by Oxonian philosophers, but his interest is primarily in the work of Julie Dickson. Dickson argued that the key to the controversy about the nature of law lies not in contrasting evaluation and description (i.e. that laws can be described without any evaluation), but in distinguishing types of evaluation: some evaluation (that centring upon the participants in a legal system in evaluating what is significant or important to them) is necessary, as distinct from moral evaluation, which is not. Pojanowski argues that such debates about the ‘dividing line between jurisprudence and normative philosophy’ (P. 1464: but does this not capitulate already to the positivist position?) actually turn upon broader moral considerations of ‘what is good for persons’ and ‘competing ways of thinking about society’, thus revealing something of our moral and metaphysical commitments. (Id.) Continue reading "Jurisprudence Reevaluated"
Mar 28, 2022 David FagundesIntellectual Property Law
Property scholars have long noted a gulf between the way laypeople think about ownership and how property law actually works. This gulf has widened in the digital age, as our beliefs about what we own and what ownership means have not kept pace with our complicated relationships with digital goods. Consider, for example, the furor that arose a decade ago when it emerged that Apple insisted that iTunes users did not own purchased music files outright but had only a lifetime license to use them.
In a sparkling essay, Aaron Perzanowski explores the distance between the perception and reality of ownership in the context of the emergent right to repair. Traditionally, we expected to be freely able to repair physical items we own, whether a book with a torn cover or a car with a leaking fuel line. But how does this expectation translate in the digital setting? The question, Professor Perzanowski shows, is an important and complicated one. Continue reading "What We Think About When We Think About Ownership"
Mar 25, 2022 Jedidiah KronckeInternational & Comparative Law
I am not predisposed to scholarship written in an idealistic register. For many contemporary thinkers—in most any field—greater insight into modern political trends gravitationally pulls one toward cynicism. Some of this very cynicism encircles debates in international law that question whether idealism itself has been unwittingly complicit in bringing about the world of ever-growing inequality and retreating democratization now often centerpiece in global legal scholarship.
As such, I was not predisposed to like Six Faces of Globalization: Who Wins, Who Loses, and Why It Matters. I had long read with interest the scholarship of its two authors, Anthea Roberts and Nicolas Lamp, whose previous work has rarely been overtly optimistic about the international legal order. But Six Faces is an idealistic book to its very core and premise. Moreover, in working through a book of great ambition and intellectual agility, it is invariable to find points of disagreement, even discomfort, among its diverse insights. Yet, what is most striking about Six Faces is that throughout you can feel the authors’ dedication to finding a constructive way to be publicly facing international academics when most public spaces are thoroughly polarized and rife with contempt. It is in this reading that I found it both provocative and challenging. Continue reading "Empathy as Pragmatism: Facing the Challenges of Globalization in a Polarized World"
Mar 24, 2022 Zack BuckHealth Law
Fraud is a major problem in American health care. It costs American taxpayers and patients from about $70 to $234 billion annually, which accounts for between three and ten percent of total health spending in the United States. It is an area that would be benefited by serious legal scholarly focus and inquiry, and well served by well-supported and implementable policy suggestions based on empirical data. Professor Jacob Elberg, through his serious and important work in this space, has provided just that in his most recently-published piece Health Care Fraud Means Never Having to Say You’re Sorry. Here, Elberg again shows why he is a leading voice in health care fraud and abuse scholarship.
The piece focuses on the civil federal False Claims Act (FCA), a major tool for the federal government that imposes major civil penalties against health care fraud defendants. As has been argued before, use of the FCA and its draconian penalties overwhelmingly leads to settlement, which—without courts’ review of the government’s theory of liability—can stunt the development of the FCA itself. In addition to the lack of meaningful judicial review in these matters, defendants often deny any wrongdoing as they settle FCA allegations, leaving the public and other defendants in the dark about whether the allegations had merit or drew a settlement simply because of expediency or the risk or cost of litigation. As Professor Elberg says, this has “fueled a cost-of-doing-business narrative in which health care entities are required periodically to pay inconsequential settlements to the government regardless of their conduct.” Continue reading "An Unapologetically Inconsistent Enforcement Regime"
