Mar 4, 2021 Roger M. MichalskiCourts Law
As the saying goes, we live in partisan times. This makes it easy to succumb to the delicious allure of Manichean partisanship. Legal scholars are not immune from this temptation. Some identify with one side or the other, advocate for one party or the other, espouse one political agenda or the other. But this moment urges us to think about the role of legal academics in a civic discourse. What is our function? How can we contribute to make the important discussions happening around the country more productive, informed, lasting, inclusive, reasonable, and effective? At a time when the legitimacy of many other institutions is seriously questioned, what is our role in shaping how people view lawyers, courts, and the rule of law?
I thought of these themes when reading Symeon Symeonides’s Choice of Law in the American Courts in 2020. It is the 30th time that Symeonides has canvassed developments in conflict of laws doctrine and summarized the year’s developments in the field. The stated purpose is “to inform, rather than to advocate.” To do so, Symeonides casts a wide initial net, reading hundreds of cases that touch upon conflict of laws topics. Year after year. The surveys highlight key developments in the field, as well as broader trends. This is an immense amount of work and provides a significant benefit to many scholars, practitioners, and judges. The survey also represents a different model of legal scholarship than the standard law article fare, providing food for thought about the many roles of legal scholars. Continue reading "Conflict Scholarship in Partisan Times"
Mar 3, 2021 Edward RubinConstitutional Law
Toni Massaro & Helen Norton,
Free Speech and Democracy: A Primer for 21st Century Reformers (Dec. 15, 2020), available on
SSRN.
There has been a long-standing belief that more speech produces more freedom, and that a governmental regime is democratic to the extent that governmental control of speech is minimized. Recent developments have called these beliefs into question, however. Justice Brandeis may have said that sunlight is the best of disinfectants, but Donald Trump has given disinfectants a bad name, and cast doubt as well on their metaphorical referents through his unceasing falsehoods and his flirtation with or embrace of Russian internet disinformation. He is out of office, but his shenanigans are in fact examples of much more extensive dilemma that remains with us today. In a recent article I like lots, Toni Massaro and Helen Norton confront this dilemma and offer possible responses.
The problem, as the authors note, is that speech has been weaponized by a toxic mixture of new technology and extreme partisanship. The internet in particular, as a source of information that people increasingly rely upon, is less a marketplace of ideas and more a means of inducing people to buy into defective reports and harmful attitudes, by overwhelming them with input or misleading them with subliminal messages. Instead of addressing this problem, a conservative Supreme Court has weaponized free speech doctrine by treating government efforts to regulate defective products and harmful substances as an intrusion on the free speech rights of those who sell these products and substances in the actual marketplace. By thus overlooking serious threats to speech and instituting counter-productive protections, the Court has created a serious mismatch between real dangers and existing doctrine. Continue reading "Protecting Free Speech from Itself"
Mar 2, 2021 Asanga WelikalaInternational & Comparative Law
The Brexit referendum result in June 2016 brought to the boil a cauldron of constitutional politics that had been simmering since the piecemeal New Labour reforms of the 1990s. Those reforms were undertaken as a programme of constitutional modernisation in improving the legal protection of individual rights and in establishing asymmetric devolved institutions at the peripheries of the Union. Despite some radical rhetoric at the time, it was, in both style and substance, a very British kind of reform – incremental, pragmatic, careful to preserve a cherished narrative of historical continuity, and dismissive of theoretical grand designs. They were meant to be practical solutions to practical problems, which would enable the constitution to change sufficiently in order to carry on as successfully as ever before.
Except that this was not how it turned out. The changes to the regime of rights protection turned out to be, for some at least, a cultural revolution through the judicialisation of politics. The institutionalisation of democratically elected loci of popular sovereignty at the sub-state level turned out to be difficult to reconcile with the principle of the legislative supremacy of the Crown-in-Parliament upon which the rest of the unwritten constitution still rested. The judicialisation of rights protection and multilevel governance were both reforms that presumed UK membership in the European Union in perpetuity. When Leave won the Brexit referendum largely through English votes and against majorities for Remain in Scotland and Northern Ireland, these debates and especially the question of the UK’s continued territorial integrity have become engulfed in flames of passionate rhetoric and deep divisions. All of a sudden, the UK constitutional settlement finds itself in a very un-British place. Continue reading "The Constitutional Codification Debate in the United Kingdom"
Mar 1, 2021 Ruqaiijah YearbyHealth Law
Lindsay F. Wiley,
Democratizing the Law of Social Distancing, 20
Yale J. of Health Policy, L. & Ethics __ (2020), available at
SSRN.
Prior to the COVID-19 pandemic, U.S. emergency preparedness laws and plans to prevent, detect, manage, and contain the spread of communicable disease targeted individual actions, rather than community mitigation efforts. For example, the Model State Emergency Health Powers Act and state emergency preparedness laws concentrated on detecting, managing, and containing the spread of an infectious disease, in part, through the medical examination, testing, isolation, and quarantine of individuals. This began to change when Congress amended the Public Health Service Act in 2002 to provide states with financial support and strategies to prepare for and respond to public health emergencies. By 2004, the Centers for Disease Control and Prevention began to use the term social distancing as a way to describe a strategy to stop the community spread of disease.
Yet, as Professor Lindsay Wiley discusses in Democratizing the Law of Social Distancing, social distancing was not widely implemented as a community containment strategy until the COVID-19 pandemic. Many states have begun to incorporate community mitigation efforts, such as stay-at-home/lockdown, mask, and social distancing orders, into emergency preparedness laws and plans to contain the community spread of COVID-19. These efforts have resulted in slowing the spread of COVID-19 in most communities. However, not only have the laws met with resistance from the public and the courts, but also these community mitigation efforts have not been effective in slowing the spread of COIVD-19 in racial and ethnic minority communities. Continue reading "Democratizing, Protecting, and Supporting Communities: Improving the Government’s Pandemic Response"
Feb 26, 2021 Linda C. McClainFamily Law
Saidiya Hartman opens her powerful and lyrical Wayward Lives, Beautiful Experiments: Intimate Histories of Social Upheaval with an epigraph from Harlem Renaissance author Nella Larsen’s Quicksand: “She was, she knew, in a queer indefinite way, a disturbing factor.” As I read Hartman’s brilliant narrative recreation of the voices, words, and intimate lives of “young black women,” at the turn of the twentieth century, as they sought “to create autonomous and beautiful lives, to escape the new forms of servitude awaiting them, and to live as if they were free” (P. xiii), another Harlem Renaissance novel came to mind: Jessie Redmon Fauset’s Plum Bun: A Novel Without a Moral (1929). The desire to live free also preoccupies Angela Murray, the young Black woman whose own intimate history and experiments in living are at the center of Plum Bun. While Murray has more economic and family resources and class privilege than the young Black women whose lives Hartman makes palpably and poignantly real to readers, this fictional heroine and these women alike perceive the bar that “the color line” poses—at every turn— to living “as if” free. “Freedom!” is the most frequent “note” in the “melody of living” of which Angela dreams, and she perceives that “[c]olour or rather the lack of it seemed . . . the one absolute prerequisite” to that dream life and to the “difference between freedom and fetters.” (Fauset 13, 137.)
The “fetters” created by the color line’s racial caste system constrain yet fuel the subjects of Hartman’s narrative: young Black women on a quest to rebel and “live free” in the decades between 1890 and 1935, in New York City and Philadelphia. To construct her dazzling portraits of those “wayward” lives, Hartman uses a method of “close narration” by attempting to “inhabit the intimate dimensions” of those lives and place “the voice of narrator and character in inseparable relation.” (Hartman, P. xiii) She draws on “a vast range of archival materials” to “convey the sensory experience of the city and to capture the rich landscape of black social life.” Such archival sources treat these young women as “a problem,” and include “the journals of rent collectors; surveys and monographs of sociologists; trial transcripts; slum photographs; reports of vice investigators, social workers, and parole officers; interviews with psychiatrists and psychologists; and prison case files.” (P. xiv.) Countering that diagnosis, Hartman insists on the beauty of these experiments in trying to live free, arguing that these “young black women in open rebellion” show “utopian longings” and provide “an intimate chronicle of black radicalism;” such radicalism included “free” motherhood, intimate partnerships outside of marriage, and “queer and outlaw passions.” (P. xv.) As the archives reveal, the regulatory apparatus of governmental and quasi-governmental officials labelled and punished these young Black women for their supposed deviance from marital, gender, and sexual norms. Continue reading "A Radical, Subaltern Chorus: Saidiya Hartman’s Album of Rebellious Young Black Women"
Feb 25, 2021 Dorothy BrownTax Law
Jeremy Bearer-Friend,
Should the IRS Know Your Race? The Challenge of Colorblind Tax Data (Nov. 18, 2020), available on
SSRN.
The summer of 2020 opened the eyes of many to the concept of systemic racism, and some even started looking in unlikely places – like tax law. Senator Sherrod Brown (D-Ohio) acknowledged in a June 2020 hearing that “Congress writes the tax laws. If there are ways that our current tax code exacerbates racial inequity, then it’s our job to fix it.”
Senator Brown’s articulated vision will be difficult to achieve because the Internal Revenue Service (“IRS”) does not collect or publish statistics by race. I confirmed this fact in a telephone interview with an IRS employee when I was writing one of my first pieces about systemic racism and tax policy over two decades ago. I was most interested in the distribution question – whether or not taxpayers were treated differently by race. (The answer is yes — they are treated differently. I write about this in a forthcoming book, The Whiteness of Wealth: How the Tax System Impoverishes Black Americans—And How We Can Fix It.) But equally important questions were asked and answered by George Washington University Associate Professor of Law Jeremy Bearer-Friend, in his article: Should the IRS Know Your Race? The Challenge of Colorblind Tax Data. Continue reading "Race and Tax: Colorblind No More"
Feb 24, 2021 Alexandra NatapoffCriminal Law
When I was a public defender in Baltimore, I often observed a chasm between my Black clients’ and neighbors’ experiences with police and White perceptions of policing. Baltimore is infamous for its longstanding racial segregation—spatial, cultural and political. As a result, the everyday realities of policing in Black neighborhoods were largely invisible to White Baltimoreans (including judges, prosecutors and jurors) which fostered a kind of White blindness, sometimes genuine but often willful and disrespectful. That, among other things, permitted egregious forms of police corruption to persist, since accurate Black reports of police misconduct were commonly dismissed as implausible or wildly exaggerated.
I was reminded of this lesson by the wave of horrified White reactions to the video of George Floyd’s murder and to other videos of police aggression against Black people. White blindness made these videos more surprising; Black Americans have been experiencing and reporting discriminatory police violence for decades. It crystallized for me how White blindness to Black experiences is a deep, enabling feature of our segregated criminal system. It also made me wonder, perhaps too hopefully, whether this new, terrible video evidence might be understood as performing a kind of informational anti-segregation work in criminal justice culture and politics. Monica Bell’s insightful article Anti-Segregation Policing is the starting point for anyone interested in such questions. Continue reading "Desegregating Our Perceptions of Police"
Feb 23, 2021 Omari SimmonsCorporate Law
William Moon’s thought-provoking recent paper, Delaware’s New Competition, examines whether there exists an international market for corporate law. Moon’s paper captures a trend in which certain offshore jurisdictions are emerging as corporate lawmakers and attracting publicly traded firms. Specifically, the paper analyzes how a small group of island nations, or “havens”, are developing legal infrastructures that attract public companies. It explores how and why foreign nations might compete for a market share of “American” corporations.
Paper’s Central Findings
Moon’s paper moves beyond the domestic charter competition narrative centered on Delaware to explore its international and comparative dimensions. The popular view of offshore incorporation is that it is largely driven by tax considerations. (Pp. 1417–18.) Moon considers another aspect of the jurisdictional product bundle: corporate law. Continue reading "Corporate Law in Paradise"
Feb 22, 2021 Jack BeermannAdministrative Law
Janet Freilich,
Ignoring Information Quality, __
Fordham L.R. __ (forthcoming 2021),
available at SSRN.
Complaints about the patent system are legion. Critics complain that it is too easy to get a patent, that it is too easy to challenge an existing patent, that many patent denials are rationally inexplicable, that aggressive enforcement of patents stifles innovation, that patent trolls abuse the system to extort money from innocent users of widespread technology, and that inventors leverage modest modifications of existing patents to extend the patent period beyond intended legislative limits. While Janet Freilich’s forthcoming article, Ignoring Information Quality, may not reveal the root of all patent evil, it illuminates an important problem in the U.S. patent system, namely that patent examiners rely on low quality information to make their ever-important decisions on patentability. This, according to Professor Freilich, leads examiners to grant patents based on dubious claims that undercut, rather than further, patent law’s purpose of encouraging useful innovation and to reject deserving patents based on an incorrect understanding of background information.
The attentive reader may wonder why this is an administrative law jot rather than an intellectual property one. The answer is simple—the Patent and Trademark Office (PTO), the agency that grants patents, is an administrative agency, and thus Professor Freilich’s article is a case study in the importance of high quality information across the spectrum of administrative law. Information quality problems like those that plague the patent system exist in many corners of administrative law where sensible policy decisions and predictions are possible only in light of high quality information. Professor Freilich’s paper shines a light on a problem in the patent system that is similar to problems that have been noticed in administrative rulemaking, where mountains of comments may overwhelm the capacity of agencies to separate the wheat from the chaff and in adjudications where subjects of administrative action in areas such as immigration enforcement may lack the capacity or knowledge to gather and present the facts relevant to their cases. Continue reading "Patent Fake News"
Feb 19, 2021 Lauren ScholzContracts
First year teachers of common law subjects describe the common law system with a little bit of romanticism. Through the aggregation of many court opinions, and through learning from variant approaches in different states’ jurisdictions, a process of reflective equilibrium finds legal rules that make sense as applied to diverse fact patterns and that reflect ongoing changes in technology and social mores. The status of each state’s supreme court as the final arbiter of questions of common law features keenly in Louis Brandeis’s oft-quoted characterization of the states as “laboratories of democracy.” Writing with Samuel Warren, Louis Brandeis famously declared that “the common law, in its eternal youth, grows to meet the new demands of society.”
As Samuel Issacharoff and Florencia Marotta-Wurgler’s important new paper The Hollowed Out Common Law shows, changes in procedure and surrounding law have caused the common law of contracts not to function as it has in the past. Specifically, they argue that there has been a dearth of doctrinal elaboration and robustness in the burgeoning domain of online contracting over the past three decades. They document several shifts in law and legal practice that has led to the decline in number and refinement of analysis in these consumer contracting cases. As Brandeis’s comments show, the pressure on common law judges to develop doctrine comes from contrasting apex state supreme court opinions, and the consideration of a variety of novel fact patterns by all courts. Yet Issacharoff and Marotta-Wurgler’s study shows two shifts against the creation of a robust common law of contracts (1) state supreme courts are no longer the dominant voice in consumer contract law and (2) a depressed number of consumer contract cases are decided on their merits before any court. I will address their contributions on each of these points in turn. Continue reading "Arrested Development: The Decline of Legality in Consumer Contract Law"
