Oct 13, 2021 Anthony ColangeloInternational & Comparative Law
The Evans have done it again. After redefining the legal and analytical concept of jus cogens (peremptory norms of international law) as a species of fiduciary duty the state owes to human beings within its control in A Fiduciary Theory of Jus Cogens, Evan J. Criddle and Evan Fox-Decent have taken their novel thinking to tackle the extraordinarily urgent issue of non-refoulement under international law in the midst of the COVID-19 pandemic in their recent article The Authority of International Refugee Law.
Non-refoulement is the international legal duty to refrain from returning refugees to territories where they face a serious risk of persecution. While international law firmly places the duty of non-refoulement into the jus cogens camp in some scenarios, such as where the refugee faces a substantial risk of torture, positive and customary law are more ambivalent in other areas. For example, the Convention Relating to the Status of Refugees explicitly allows states to deny protection on a case-by-case basis when “there are reasonable grounds for regarding [a particular refugee] as a danger to the security of the country.” This hesitancy to formally and absolutely prohibit non-refoulement in positive international law raises serious obstacles for Criddle and Fox-Decent’s argument that non-refoulement should be considered a jus cogens norm, for a key feature of such norms is that they are non-derogable. Similarly, the very practice they seek to criticize—refoulement based on COVID-19—reflects a degree of state practice, undercutting the formation of customary international law. Continue reading "Non-refoulement as a Peremptory Norm of International Law (Jus Cogens) in the Age of COVID-19"
Oct 12, 2021 Jennifer OlivaHealth Law
Dr. Carl Hart’s Drug Use for Grown-Ups: Chasing Liberty in the Land of Fear opens with a controversial admission. The Columbia University Ziff Professor of Psychology declares that he is “an unapologetic drug user” and, consequently, “a happier and better person.” Dr. Hart urges “responsible” adults to “come out of the closet” about their recreational drug use and its myriad beneficial impacts.
Two important contentions animate Drug Use for Grown-Ups. The first is the widely accepted notion among experts that America’s long-standing criminalization of certain drugs, grounded in their anti-scientific demonization and racialization, is the crux of our problem. Simply stated, our never-ending war on drugs, which has resulted in our country’s unenviable distinction as global mass incarcerator, is an expensive and racist failure. Dr. Hart aptly characterizes American drug policy as a “monstrous, incoherent mess.” Few drug policy experts would disagree. Continue reading "Coming Out of the Drug-Use Closet"
Oct 11, 2021 Courtney CahillFamily Law
Noah Kazis opens his new article Fair Housing for a Non-Sexist City with an ambitious question: “What would a non-sexist city be like?” (P. 1684). America’s “built environment,” Kazis explains, is a stubbornly sexist one. (P. 1687.) Examples abound. Women—as both child-care users and child-care workers—are economically burdened because of land use restrictions on in-home day care in residential areas. (Pp. 1710-20.) Men—as the predominant users of economically-desirable shared housing models—are rendered homeless because of building code and zoning restrictions on single room occupancy units. (Pp. 1720-35.) Women and men—as partners—fall into traditional sex roles (that redound to the financial detriment of both) because of land use restrictions that make it harder for a parent (traditionally the woman) to be at home for children in one area and at work for a high-paying job in another. (Pp. 1735-45.) Kazis uses these examples—among others—to illustrate the problem his article targets: the entrenchment of Victorian America’s separate spheres ideology in today’s material landscape.
Fair Housing is a treasure trove of facts that will interest scholars of family law and of gender relations, including the fact that “[t]en percent of the gender pay gap between husbands and wives without children can be attributed to commute variables” (P. 1739), and the fact that cities historically excluded apartment houses and boarding “hotels” from residential areas in order “to preserve the ‘character and quality of manhood and womanhood.’” (P. 1726.) However, one of the most interesting facts that Fair Housing unearths is that neither litigants nor enforcement agencies have used the Fair Housing Act—a federal law dedicated to ensuring fair housing, after all—to challenge our built environment’s housing and land use practices; nor have scholars dedicated much attention to sexism in our material and architectural ecosystem. Kazis’s aim in Fair Housing is not so much to explain why that is so as to elaborate on what role the FHA might play moving forward. To that end, Fair Housing offers concrete examples and explanations of the ways in which the FHA can facilitate “fair housing for a non-sexist city” through its relatively robust disparate impact theory of liability and its statutorily unique provision requiring state and local governments to “affirmatively further” fair housing (P. 1692.) Continue reading "Fair Housing for a Non-Sexist Household"
Oct 8, 2021 Helen NortonConstitutional Law
RonNell Andersen Jones & Sonja R. West,
The U.S. Supreme Court’s Characterizations of the Press: An Empirical Study (August 10, 2021), available at
SSRN.
An independent judiciary and an independent press are two of the institutions most often associated with a constitutional democracy’s commitment to public accountability. Two of our most thoughtful Press Clause scholars—RonNell Andersen Jones and Sonja West—set out to document what the former (more specifically, the Supreme Court) says about the latter (the press), and how that has changed over time. What they found is both fascinating and disquieting.
Worried about “the fragile and deteriorating relationship between the press and the government” and what that means for the protection of press freedom, Jones and West identified every reference to the press made by any Supreme Court Justice in any opinion since 1784. They then coded each reference by content (e.g., whether the Justice addressed the press’s trustworthiness, the press’s impact on reputation and privacy, its value, its constitutional protection, and more) and by tone (i.e., whether the Justice’s reference reflected a positive, negative, or neutral characterization of the press).
This is impressive empirical work—work that has generated a rich data set that the authors will continue to mine in future scholarship (where, for instance, they plan to consider what the Court’s rhetoric means for the public’s perception of the Court, and what this in turn might mean for the protection of press freedom). Continue reading "How The Supreme Court Talks About the Press (and Why We Should Care)"
Oct 7, 2021 Aya GruberCriminal Law
Karen Pita Loor,
The Expressive Fourth Amendment, 94
S. Calif. L. Rev. __ (forthcoming, 2021), available on
SSRN.
For over a year, protests and police brutality have been at the forefront of the public mind. In the summer of 2020, people were horrified by the images of officers arriving in armored bearcats, donning military battle gear, lodging projectiles of banned chemical weapons at peaceful Black Lives Matter protesters and walls of moms, and even engaging in dictatorship-style “disappearances.” Those protests, 25 million strong and admirably nonviolent, were themselves a reaction to the police brutality which took George Floyd’s life and was captured in a wrenching viral video. Last summer, there was a clear right-left divide on the desirability and propriety of heavy-handed protest policing tactics. The violent images moved many on the left to call for the defunding, disarming, and even dismantling of police forces. But many on the right felt police were entirely too restrained and offered as evidence the Seattle “CHOP” zone—the apotheosis of anarchic dystopia for conservatives. Then came 1/6 and the storming of the U.S. Capitol, and it was liberals decrying the police’s restraint in handling the pro-Trump rally-turned-riot.
For decades, scholars of policing and criminal procedure have wrestled with the issue of police use of force against protesters. In recent years, and especially after the Ferguson protests, there has been a virtual consensus among legal scholars that the Fourth Amendment use-of-force framework established in Graham v. Connor is entirely too permissive of police violence against protesters—and everyone else. Experts have called for doctrinal reforms ranging from altering Graham’s test for excessiveness to eliminating the qualified immunity doctrine. Also since Ferguson, a number of scholars have weighed in on the First Amendment implications of protest policing, arguing that police management tactics were not mere time, place, and manner restrictions, but serious infringements on free speech. For the most part, these Fourth and First Amendment critiques of protest policing have been siloed: either reform Fourth Amendment law to make it harder for police to use force on anyone or broaden First Amendment speech protections for protesters. In The Expressive Fourth Amendment, Professor Karen Pita Loor offers an important, novel intervention to the ongoing discussions of protest policing. Continue reading "The Fourth Amendment’s Forgotten Free-Speech Dimensions"
Oct 6, 2021 Steve VladeckCourts Law
Jonathan R. Siegel,
Habeas, History, and Hermeneutics, (August 6, 2021), available in draft at
SSRN.
Habeas is hard. Even among law professors—indeed, even among law professors whose teaching and writing includes habeas—the statutes and doctrines governing collateral post-conviction review in the federal courts have become so complicated and convoluted that there is a temptation to skip it in the Federal Courts syllabus (and, I dare say, to gloss over any paper the title of which includes the h-word). Whether you are a habeas scholar or not, though, you should make an exception for Jonathan Siegel’s forthcoming essay.
Siegel’s paper centers on Edwards v. Vannoy—by far the Supreme Court’s most important habeas decision from its October 2020 Term—and explains why even those of us who have paid attention to it have missed what really matters. In the process, we have missed ominous portents of the future of the current Court’s approach to post-conviction habeas—and of how the current Supreme Court decontextualizes older rulings and statutes to rewrite history and to free itself from the strictures that proper understandings would impose. Siegel’s paper is equal parts trenchant and terrifying, and it is a must-read even for those who do not know, to this point in the review, what Edwards was actually about. Continue reading "Hiding Behind Habeas’s Hardness"
Oct 5, 2021 Christine AbelyCorporate Law
Peter Molk and D. Daniel Sokol’s recent article The Challenges of Nonprofit Governance addresses a less-examined area of the governance literature: namely, the governance of nonprofit organizations. As the authors note, nonprofit governance failures have made the news in the past few years, as with, for example, the allegations against the National Rifle Association for self-dealing and fraud, or those against the University of Southern California related to sexual assault, discrimination, and corrupt admissions dealings. This article fills a notable gap in the governance literature by addressing important differences between corporate and nonprofit governance mechanisms; discussing currently available methods to monitor nonprofit activities, as well as the shortcomings of those approaches; and proposing solutions to promote more robust oversight and to better safeguard the interests of the nonprofit stakeholders and beneficiaries, as well as those of the general public.
Molk and Sokol identify several issues inherent in and unique to nonprofit governance. State attorneys general are usually tasked with nonprofit oversight. The authors note that such monitoring is often hampered by a lack of resources, as well as a dearth of required financial disclosures that could be used to evaluate nonprofits’ fiscal health. The authors attribute these shortcomings to the structural flaw that nonprofits may operate in numerous states, but that the mission of an individual state attorney general centers primarily around the protection of citizens of only its own state. As such, a problem of the commons arises whereby the resulting observed level of enforcement is less than would be optimal, but no one state attorney general has sufficient incentive to increase enforcement to detect wrongdoing outside of its own jurisdiction. Continue reading "The Governance of Nonprofit Organizations"
Oct 4, 2021 Shawn BayernContracts
Babette Boliek,
Upgrading Unconscionability: A Common Law Ally for a Digital World, __
Md. L. Rev. __ (forthcoming, 2021), available at
SSRN.
Professor Babette Boliek makes two important contributions in Upgrading Unconscionability: A Common Law Ally for a Digital World before even reaching the article’s normative argument.
First, the article challenges what has become a surprisingly prevalent bit of supposed wisdom among commentators on contract law: that the doctrine of unconscionability barely exists and that nobody should take it seriously—or, as Professor Boliek puts it, that “the application of unconscionability is so rare that it is the last refuge of fools.” The pessimistic view of unconscionability’s role may confuse a paucity of rules about unconscionability with a paucity of cases (or more generally with a lack of importance of the doctrine). It is true that unconscionability is a vague doctrine. Even its statutory formulations in US law tend not to supply clear definitions; for example, the Uniform Commercial Code provides general rules that let courts respond to “unconscionable” contracts (see U.C.C. § 2-302), but never defines the term. But while that may make it hard to apply unconscionability on a Contracts exam, it doesn’t mean the doctrine of unconscionability isn’t important. Indeed, if the purpose of the rule is simply to give courts flexibility to prevent the worst abuses of contract-related processes or the most oppressive contracting outcomes, the doctrine needn’t be specific, and pinning it down too tightly may limit the doctrine’s ability to respond flexibly to abuses. Continue reading "The Exaggerated Rumors of the Death of Unconscionability"
Oct 1, 2021 Wendy Anne BachLexPoverty Law
Just a quick warning—Armando Lara-Millán’s Redistributing the Poor: Jails, Hospitals, and the Crisis of Law and Fiscal Austerity is a depressing read, particularly, for those of us who have, at some time in our poverty law careers, litigated class actions. It’s not as if we did not know, when, for example, negotiating compliance benchmarks for institutional defendants (jails, public housing agencies, welfare departments, public hospitals…), either that the purpose of those benchmarks could be easily evaded or that our lawsuit might result in pulling resources away from another need. But knowing this abstractly, and earnestly planning against it, is one thing and reading a book that exquisitely describes how legal pressure often does little more than redistribute pain, is an entirely another.
Lara-Millán is a sociologist. In Redistributing the Poor, he challenges fundamental narratives at the heart of a significant branch of socio-legal scholarship. He suggests that the overarching recent U.S. historical narrative that many of us assume is true–that we are seeing the results of “overinvestment in criminal justice and underinvestment in public health”—fundamentally misunderstands the way the United States governs the poor. “In short, the idea of redistributing the poor draws attention to how states agencies circulate people between different institutional spaces in such a way that generates revenue for some agencies, cuts costs for others, and projects illusions that services have been legally rendered.” (P. vii.) Continue reading "Legal Compliance, Categorization and the Disappearing of Suffering"
Sep 30, 2021 Eli NachmanyAdministrative Law
This summer, Dædalus, the Journal of the American Academy of the Arts and Sciences, turned its focus to public administration and the regulatory state. Mark Tushnet served as the Summer 2021 Dædalus Issue’s Guest Editor, compiling essays from leading lights of administrative law like Cass Sunstein, Aaron Nielson, and Judge Neomi Rao. Professor Nielson’s piece, Deconstruction (Not Destruction), is the latest work in a line of scholarly literature that acknowledges the growing libertarian discomfort with perceived excesses of administrative governance (perhaps best embodied in the scholarship of Professor Philip Hamburger and the jurisprudence of Justice Neil Gorsuch) and proposes an alternative path forward for regulatory state skeptics. Some other such works include Professor Jeff Pojanowski’s 2020 Harvard Law Review article Neoclassical Administrative Law and Professors Sunstein and Adrian Vermeule’s new book Law and Leviathan.
Conceding at the beginning of the essay that “[t]he Supreme Court is not about to declare most of the federal government unconstitutional,” Professor Nielson is nevertheless sympathetic to the idea that today’s administrative-centric federal model presents serious issues. Professor Nielson’s thesis proceeds from the premise that, in the context of administrative law, commentators typically associate the word “deconstruction” with former White House Chief Strategist Stephen Bannon’s assertion that the Trump Administration sought to “deconstruct”—read: destroy—the administrative state. Professor Nielson takes a step back and reinterprets deconstruction in the “more technical sense of examining the administrative state to identify where theory and reality diverge and what can be done to fix it.” This reconsideration, Professor Nielson argues, is long overdue; to the extent that the federal government has constructed the administrative state over the last century or so, Professor Nielson proposes deconstruction as a way of rigorously interrogating the theories and assumptions underlying said efforts. Continue reading "A Second Look at the Administrative State: Deconstruction as Reassessment"
