Jan 7, 2021 Binyamin BlumLegal History
As the parent of a very curious four-year-old, I am accustomed to being asked the question “why?” about every statement I make. Specifically, I have recently been asked to explain why people die, and what happens to them once they do. In her article When Dead Bodies Talk: Colonial and Ritual Autopsies in French-Ruled Africa (1918–1945) Ruth Ginio explores the cultural underpinnings of how we approach such questions and the kinds of answers we find satisfying. Ginio begins the article with a revealing exchange in Nii Ayikwei Parkes’s 2009 novel, Tail of the Blue Bird. Parkes, a Ghanaian author, tells the story of Kayo, a young Westernized Ghanaian forensic pathologist, who is sent to a secluded village to examine an unidentified body to determine whether a murder had taken place. A local hunter by the name of Opanyin interrogates the visitor about his peculiar profession:
‘You explain deaths?’
‘Yes.’ Kayo’s tone was defiant.
‘Then, tell me, why do people die?’
‘Because they are old, or sick, or someone attacked them. I don’t know.’
‘Then you can’t explain deaths.’
‘Opanyin, that is my job. It is part of what I do.’
‘I am a hunter. I kill beasts so I can eat, but I know they don’t die because I shoot them or trap them; that is how they die but is not why they die.’ Continue reading "Why We Die: The Metaphysics of Death in French West Africa"
Jan 6, 2021 Linda S. MullenixCourts Law
Thomas D. Russell,
Frivolous Defenses (Aug. 17, 2020), available at
SSRN.
From the mid-1980s through the turn of the twenty-first century, tort reform advocates, corporate entities, politicians, and lobbyists have raged about an alleged plague of frivolous lawsuits clogging state and federal dockets. In what perhaps might be characterized as revenge of the plaintiffs’ bar, Thomas Russell has turned the table and written the first systematic study of frivolous defenses. This provocative article, which has raised the ire of insurance defense attorneys, is worth reading as a compelling counterpoint to the frivolous lawsuit narrative.
Russell is a torts professor and plaintiffs’ attorney in Colorado. Based on his experience representing plaintiffs in auto accident litigation, Russell concluded that “Sometime after the first-year civil procedure course, insurance defense lawyers learn to ignore the rules of civil procedure when filing answers to lawsuits.” In handling client cases, insurance defense attorneys repeatedly frustrated Russell with the paucity of their responses to the averments in his complaints. Trial judges frustrated Russell by denying his motions concerning the inadequacy of defense responses.
Russell anchors his discussion in Nora Freeman Engstrom’s scholarship on “settlement mills.” He notes that Engstrom’s scholarship demonstrates how plaintiffs’ lawyers participating in settlement mills engage in routinized practices, conduct little factual investigation, and take shortcuts to achieve the quick settlement of small cases. Russell’s article crosses from the plaintiffs’ side of the docket to examine the work of insurance defense lawyers in auto accident lawsuits who respond by filing boilerplate, largely non-responsive answers to plaintiffs’ averments. As titillating as studies of plaintiffs’ lawyers may be, additional study of the plaintiffs’ side without a correlative look into defense work perpetuates a distorted view of tort litigation. His study of insurance defense practices is intended to provide this balance. Continue reading "A Non-Frivolous Challenge to Frivolous Defenses"
Jan 5, 2021 Sarah BursteinIntellectual Property Law
Aman Gebru,
Patents, Disclosure, and Biopiracy, 96
Denv. U.L. Rev. 535 (2019), available at
SSRN.
A new patent application claims to have invented a process for using turmeric to “augment the healing process of chronic and acute wounds.” Unbeknownst to the patent examiner, this spice has been used for this purpose—for centuries—in India. Because the process isn’t new, it shouldn’t be patentable. But what if the patent examiner doesn’t know about that longstanding prior use?
Because traditional knowledge (TK) isn’t typically found in the sources of information that patent examiners can easily access—such as other patents or printed publications—an applicant may be able to get a patent for something they didn’t invent. Or the patent they get may cover significantly more than whatever refinements or improvements the applicant actually did invent.
Indeed, in the real-life case alluded to above, a U.S. patent did issue. When the fact that turmeric had been long used to treat wounds in India was brought to the attention of the U.S. Patent & Trademark Office (USPTO), the patent was ruled invalid. But for a time, there was a U.S. patent covering this old technology.
If we don’t want patents like this to issue, we need to get better information to U.S. patent examiners. But how can we do that? In Patents, Disclosure, and Biopiracy, Aman Gebru argues that patent applicants should be required to disclose their use of genetic resources or traditional knowledge. This article is noteworthy for its detailed examination of how such a requirement could fit into U.S. patent law, even without legislation. Also noteworthy is its use of law-and-economics arguments for this position rather than the more conventional approaches that have relied on equity and distributive justice arguments. Continue reading "How to Thwart Biopiracy"
Jan 4, 2021 Marc-Tizoc GonzálezLexPoverty Law
Focusing on Black American lives during the Covid-19 pandemic of 2020, UDC Law Professor Etienne C. Toussaint’s latest article is a tour de force, which provocatively yet persuasively argues that U.S. history, law, and society iteratively reconstitute socioeconomic inequality through “collective rituals of white supremacy that both create and reconstitute anti-Black racism and redeem white privilege.” (P. 5.) For Toussaint, the catastrophe of pandemic illuminates the fragility of U.S. democracy in two significant ways: not only has the pandemic unmasked “the adverse impact of decades of inequitable laws and public policies in low-income Black communities across the United States[,]” but it has also spotlighted “America’s racially biased, violent, and supervisory policing culture[.]” (P. 3.)
These themes are well-known to scholars of Critical Race Theory (CRT) and poverty law in the United States. Toussaint’s contribution feels exciting and noteworthy because of his skillful synthesis of multiple literatures within legal scholarship and across the disciplines, including inter alia, anthropological theory on rituals; critiques of rights-based discourse (domestic and international) for reifying abstract liberal ideologies of equality, liberty, and universalism; and an adroit evaluation of Martha Fineman’s theory of human vulnerability (and Amartya Sen’s theory of development as freedom) in light of the collective experience of Black Americans under white supremacy. Continue reading "Visibly Fragile America"
Dec 21, 2020 A. Michael FroomkinJotwell
Jotwell will be taking a short Winter break. Jotting should resume on Monday, Jan 4, 2021.
This has been a uniquely difficult year for everyone. I and the Jotwell Student Editors — Claire Chatellier, Bridget Dye, and Allison M Paquin — all wish our readers a happier 2021.
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Dec 18, 2020 Charles O'KelleyCorporate Law
Sarah C. Hann,
Corporate Governance and the Feminization of Capital (Dec. 8, 2020), available at
SSRN.
In her working paper, Corporate Governance and the Feminization of Capital, Sarah C. Haan unearths the lost history of female shareholding and the crucial role gender bias and stereotypical depictions of women may have played in the creation of a corporate law system and ideology that promoted managerialism—to the benefit of white males. From the beginning of the twentieth century to the start of the Great Depression, corresponding with the rapid rise to dominance of the modern corporation, women had grown from an insignificant portion of the nation’s stockholders to a majority in many publicly traded firms; by the mid-1950s women were a numerical majority of all owners of publicly-traded stock. In the two decades before the Great Depression, reformers worried about the looming influence of the emerging modern corporation, and many advocated protecting and reinforcing shareholder power as the appropriate antidote.
The Great Market Crash of 1929 and the election of Franklin Roosevelt in November of 1932 provided the crisis and the opportunity to remodel corporate governance. However, rather than increasing the shareholder governance role, corporate theorists and policymakers preferred laws and legal institutions that fostered and supported managerialism. Haan convincingly argues that the path taken corresponded with gender-biased beliefs concerning the capabilities and appropriate roles of men and women, and that Berle and Means’ The Modern Corporation and Private Property (“The Modern Corporation”), published in the summer of 1932, played and continues to play a central role in how corporate law is theorized and understood. Continue reading "The Lost History of Women Stockholders and the Modern Corporation"
Dec 17, 2020 Rosalind DixonInternational & Comparative Law
Constitutional democracy is under threat worldwide, including in Asia itself. Witness the banning of the political opposition in Cambodia, the ongoing role of the military in Thailand, or the actual and threatened expansion of executive authority in the Philippines. These trends also parallel broader patterns of democratic backsliding or erosion across the globe. Identifying ways in which courts can effectively help counter these trends is thus of enormous value in 2020, and beyond.
In her important new book, Constitutional Statecraft in Asian Courts, Yvonne Tew provides just such an account: she argues that courts in Asia – and specifically in common law, South-East Asian countries such as Malaysia and Singapore — can and should play a greater role in both helping build and protect resilient constitutional democratic systems. Continue reading "Building a more Perfect Democracy in Asia: A Realistic Theory of Courts as Democracy Protectors and Promoters?"
Dec 16, 2020 Paul HorwitzConstitutional Law
For reasons that remain mysterious, the past four years or so have seen a distinct rise in interest among public law scholars in the concept of “office” and surrounding ideas. What is an office, precisely? Is its defining feature one of powers—or of duties? What is the relationship between the office and the person occupying it? Do the powers and duties connected to that office inhere in the office, the officer, or some mixture of both? Can an officer speak for him- or herself, or is that speech always “official?” What is the relationship between office, officer, and the oath of office? Does the idea of fiduciary duty illuminate such questions, or obscure them? Of course these questions have a long pedigree. But since roughly 2017, this broad topic has seen a distinct upturn in scholarly work. One hopes it is not temporary or expedient.
Scholarly work on the question of office can take different approaches—legal or political, practical or theoretical. It can attain a level of abstraction that may yield general insights but few prescriptions—this is my own preferred sin—or give very precise recommendations that are hard to tie firmly to the legal, historical, or philosophical materials. (This is one way, in my view, to read a recent critique of “fiduciary constitutionalism,” even if one thinks the concept is worth exploring.) If one wants to avoid one or the other extreme, one had better be willing to live with tension and ambivalence. That position makes many law professors uncomfortable, given their own normative inclinations and the political and professional incentives that drive them. But it can be achieved—and beautifully, at that. Such is the case with Professor Daphna Renan’s recent article, The President’s Two Bodies. Continue reading "The Two-Body Problem"
Dec 15, 2020 Richard MurphyAdministrative Law
Nicholas R. Parrillo,
A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 131
Yale L.J. (forthcoming 2021),
available at SSRN.
Not so long ago, teaching the nondelegation doctrine in Administrative Law class was straightforward. Assign students an excerpt from Whitman v. American Trucking Association. Maybe add a bit of Justice Scalia’s dissent in Mistretta. Discuss the emptiness of the intelligible-principle principle. Everyone in class agrees that, whether you like it or not, a nondelegation doctrine that can accommodate delegations to act in the “public interest” or set “fair and equitable” prices does not do very much to limit the scope of the modern regulatory state.
But change has been in the air for several years—as most clearly demonstrated by Gundy v. United States (2019). As readers of this website will likely recall, the Court in Gundy addressed a nondelegation challenge to the Sex Offender Registration and Notification Act (SORNA), which requires sex offenders to register before completing their sentences of imprisonment. Barring time travel, this requirement would have been hard to apply to persons who had completed their sentences before SORNA’s enactment. To deal with them, SORNA delegated to the Attorney General the authority to “specify the applicability” of registration requirements and to “prescribe rules for registration.” Justice Kagan, writing for a controlling plurality, found sufficient constraints in SORNA’s text, purpose, and history to reject the nondelegation challenge. Just as about a century’s worth of the Court’s precedents might lead one to expect. Continue reading "The Nondelegation Doctrine and a Deep Dive Into Federal Taxation of Real Estate in 1798 That You Didn’t Even Know You Needed"
Dec 14, 2020 Carl ColemanHealth Law
Gun violence in the United States has become a public health crisis, with an average of 100 Americans killed by firearms every day. If any other product caused this many deaths, it would almost certainly be subject to extensive regulation. However, efforts to regulate firearms are often stymied by claims that they violate individuals’ Second Amendment rights. In A Public Health Law Path for Second Amendment Jurisprudence, Michael Ulrich explains why this absolutist interpretation of the Second Amendment is inconsistent with longstanding constitutional principles. In so doing, he demonstrates that it is possible to respect the Second Amendment as an important constitutional value without stripping governments of the authority to regulate firearms in the interest of public health.
Ulrich begins with an overview of the Supreme Court’s two primary Second Amendment cases, District of Columbia v. Heller and McDonald v. City of Chicago. He concludes that those cases definitively resolved only three specific issues: First, that the Second Amendment protects an individual’s right to keep and bear arms; second, that the right is not unlimited; and third, that the right does not extend to “dangerous and unusual weapons.” Beyond those general conclusions, the decisions provide little clarity as to how courts should analyze regulations that implicate Second Amendment rights. Continue reading "Reconciling a Public Health Approach to Gun Violence and Second Amendment Rights"
