Jurisdictional Synergies in the Caribbean

Rising threats to judicial independence—in Hungary, Poland, and elsewhere around the world—are putting into stark relief the political and institutional challenges faced by “the weakest branch.” It is more important than ever to think seriously about how courts gain and maintain the legitimacy necessary for effective authority; how they develop and retain their independence; and whether judicial design might provide insights or answers.

In Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies, Salvatore Caserta and Mikael Rask Madsen shed new light on these questions through the experiences of the Caribbean Court of Justice (CCJ). In addition to providing a helpful exposition on the creation and early development of the CCJ, the Article explores the elements of judicial design that have contributed to the CCJ’s growing authority and legitimacy. The most engrossing analysis is that anticipated by the title: the CCJ’s “unique double jurisdiction,” which results in “two relatively different constituencies and operational contexts” yet has created important synergies for judicial empowerment. Continue reading "Jurisdictional Synergies in the Caribbean"

#MeToo Justice

Lesley Wexler, Jennifer Robbennolt & Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice, available at SSRN.

Do we really need to hear more about #MeToo or have we reached the point of saturation? Given the subject of my review, it should come as no surprise that I think there is more to say. What might be a surprise, however, is that I also believe we are approaching saturation. Exhibit A is the backlash that is already in full swing. Overexposure could be bad for #MeToo, but I do not think it will be. The culture of harassment, abuse, and diminishment in which women have existed and continue to exist requires nothing short of a counter-saturation. I say bring it on.

This is where this important article by Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy comes in. The authors interrogate what justice might look like for this historic movement. They conclude that the concept of transitional justice (with some nods to principles of restorative justice) holds great promise. While individualized justice is critical, the authors argue that #MeToo should also pursue and achieve systemic change. The authors land on transitional justice, but caution that its promise will be realized only if two things happen. It must include and address the most marginalized women, and it should take a holistic view of what types of changes will lead to societal transformation. Continue reading "#MeToo Justice"

Perspectives on the Right to Exclude and the Dilemma of Climate Change

Katrina M. Wyman, Limiting the National Right to Exclude, 72 U. Miami L. Rev. 425 (2018).

As the United States Supreme Court said in 1979 and restated in 1982 and then restated again in 2002, “‘the right to exclude others’ is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’”1 Just as the bundle of sticks metaphor has become ubiquitous and virtually indispensable to the definition of real property, so too has the right to exclude become essential to the idea of the assemblage of rights and things that constitute real property. Katrina M. Wyman, in her article Limiting the National Right to Exclude, challenges her reader “to rethink the robustness of the right to exclude that states currently enjoy” against the challenges to human mobility that she believes climate change will generate for millions of people. (P. 459.)

Regardless of one’s position regarding climate change, Wyman draws her reader into a compelling “what if” conversation. What if the earth’s physical environment is changing such that, in a relatively short period of time, land that is currently inhabited will become uninhabitable, either because of sea level rise or because of increasingly high temperatures? How should we understand the prospects of individuals and cultures that become dispossessed under such scenarios? Continue reading "Perspectives on the Right to Exclude and the Dilemma of Climate Change"

Arbitration in Moderation

Stephen J. Ware, The Centrist Case for Enforcing Adhesive Arbitration Agreements, 23 Harv. Neg. L. Rev. 29 (2018).

Moderation isn’t always sexy. The spotlight usually favors powerful progressives and committed conservatives. Politically aligned scholarship makes for pithier titles, punchier abstracts, and perhaps wider readership from likeminded academics and policymakers. Voices from the center are easily drowned out by the rattling din on the ideological edges.

Stephen Ware’s The Centrist Case for Enforcing Adhesive Arbitration Agreements is a welcome exception. This readable exposition of the politics of arbitration law makes the case that the best cure for arbitration’s ailments is found at the political center. This article is Ware’s third in a three-part series on this topic.1 Jurisprudence on both the left and the right, he argues, leaves doctrinally incoherent or incomplete solutions. Continue reading "Arbitration in Moderation"

Minding the Gap: Access to Justice Over the Years

Deborah L. Rhode and Scott Cummings, Access to Justice: Looking Back, Thinking Ahead, 30 Geo. J. Legal Ethics 485 (2017), available at SSRN.

In Access to Justice: Looking Back, Thinking Ahead, Deborah L. Rhode and Scott Cummings—two giants in the field—take stock of where we are when it comes to access to civil justice in the United States. Not content merely to offer an anodyne retrospective, they then use the opportunity to outline a bold agenda for future progress.

Rhode and Cummings begin their inquiry by assessing the scope of the problem. But, in so doing, they confront the same dismal paucity of reliable data that’s afflicted this inquiry for decades. As Rebecca Sandefur has bluntly put it: “[A]t present, we have no idea of the actual volume of legal need, and no idea of the actual volume of unmet legal need.” While the Legal Services Corporation (LSC) reports that “over four-fifths of the legal needs of the poor remain unmet,” it is hard to know whether that is true, as even identifying what a “legal need” is or isn’t is surprisingly difficult. (P. 487.) Many situations raise legal issues, have legal consequences, or pose legal risks, but how do we know whether any given situation is one of true legal need that can only be handled by someone with bona fide legal expertise? Worse, how do we assess those situations based on lay people’s sometimes hazy recollections, often long after the fact? Continue reading "Minding the Gap: Access to Justice Over the Years"

Recovering and Revitalizing Economic Citizenship in American Law

K. Sabeel Rahman, Democracy Against Domination (2016).

Scholars from a variety of disciplines have begun to explore what they see as the lost virtues of political economy. In its broadest conception, this term is meant to capture the basic truism that any study of politics or economics should reflect their mutually constitutive character. A renewed interest in political economy and the law further reflects the same mutuality among law, politics, and economics. Central to such renewal is a claim that analytically segregating these fields leads to analysis that is both descriptively inaccurate and has powerful and troubling normative consequences.

Sabeel Rahman’s Democracy Against Domination is a leading example of a new generation of scholarship that demonstrates both the descriptive and normative promise of law and political economy. Rahman’s mission in the book is to reinfuse debates on financial regulation with overt concern for democratic participation and to recover an ethos that sees American economic and political citizenship as inextricably intertwined. Rahman’s history traces how this ethos was lost over the course of the twentieth century, and in doing so produces a sustained historical inquiry about how we arrive at what is considered “normal” or inevitable about legal regulation. Domination’s chapters follow the pattern of presenting a modern problematic in regulation and then demonstrating how contemporary responses are both democratically impoverished and historically contingent. The aim of the endeavor is to argue that fields of law that have been exorcised of any referent to democratic values, notably antitrust and administrative law, need to be reopened and remade. The alternative is to face pressing issues of inequality with an ultimately ineffective set of regulatory responses. Continue reading "Recovering and Revitalizing Economic Citizenship in American Law"

When Social Norms for Innovation Don’t Maximize Social Welfare

Stephanie Bair & Laura Pedraza-Fariña, Anti-Innovation Norms, 112 Nw. U. L. Rev. 1069 (2018).

For more than a decade, intellectual property scholars have demonstrated how informal social norms can efficiently substitute for formal legal protections to promote creativity and innovation. Now come Stephanie Bair and Laura Pedraza-Fariña to show that social norms can have a less happy effect. In some instances, they argue, informal social norms may impede innovation. Their forthcoming article, Anti-Innovation Norms, explores a selection of these and what might be done about them.

According to the standard economic story, IP rights exist to solve a public goods problem. In the absence of IP rights, rampant copying would reduce the ability of creators to recoup their investments, and society would face underinvestment in new works and inventions. IP rights solve this problem by enabling creators to charge supramarginal prices for those works and inventions. Although IP rights are costly, they produce net benefits by encouraging creativity that we wouldn’t otherwise have. Continue reading "When Social Norms for Innovation Don’t Maximize Social Welfare"

Undoing Hellerstedt

The Supreme Court’s 2016 decision in Whole Women’s Health v. Hellerstedt1 has been widely heralded as a victory for reproductive rights. There, a 5-3 majority of the Court struck down two provisions of H.B. 2, the abortion bill that then-Senator Wendy Davis famously tried to filibuster in 2013. One of the challenged provisions required abortion providers to have admitting privileges at local hospitals, while the other required abortion clinics to be outfitted as ambulatory surgical centers. According to H.B. 2’s proponents, both measures were designed to protect women’s health. Opponents of the bill countered that the two measures would effectively shutter the majority of abortion clinics in Texas, which has roughly 5.4 million women of reproductive age.2

In the end, Hellerstedt did not prevent the closure of the clinics. Indeed, when the admitting privileges provision went into effect, it caused more than half of the clinics in the state to close.3 Instead, Hellerstedt is seen as a victory because the Court affirmed a woman’s constitutional right to choose an abortion, and in so doing, provided more guidance for determining whether and how that right has been unconstitutionally infringed. Under the undue burden standard announced in 1992’s Planned Parenthood v. Casey,4 lawmakers bear the burden of showing that a challenged abortion regulation does not unduly burden the right to abortion by placing a substantial obstacle in the path of women seeking to terminate their pregnancies. As the Court explained in Casey, “the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”5 Continue reading "Undoing Hellerstedt"

It Can’t Happen Here, Has It?

Adam Przeworski, Why Bother With Elections? (2018).

This concise and lucid book “is a summary of our current collective understanding of the method by which some societies decide who would govern them.…” (P. VIII.) The author is a professor of politics and economics at NYU, and an esteemed authority in the field of political economy. The book could not be timelier: many of us simply cannot understand how elections got us to where we are now. Bafflement can beget both anger and apathy. Much of the collective social-scientific understanding Przeworski relates will be deflating even for those who have already cast aside illusions. Nonetheless, he urges us to keep on bothering.

The book begins with a reminder that “elections are a modern phenomenon.” (P. 13.) The first national legislative election was held in 1788, to the United States Congress. Since then, elections have become an almost universal norm: today, “all but a handful of countries have legislatures elected by universal [qualified] suffrage and chief executives either elected in popular elections or indirectly by elected parliaments.” (P. 17.) The elections boom was accompanied by, and surely to some degree motivated by, the Rousseavian aspiration to reconcile humankind’s innate freedom with the fact that coercive government is here to stay. This yearning for self-government finds its expression in the rituals of popular elections. Continue reading "It Can’t Happen Here, Has It?"

Milk’s Global Rise: A Case Study to Illuminate the Transspecies Violence of Law and Colonialism

Mathilde Cohen, Animal Colonialism: The Case of Milk, 111 Am. J. Int’l L. Unbound 267 (2017), available at SSRN.

Many progressive scholars and advocates on the Left presume that the animal rights movement is culturally imperialist (at least in its American and Canadian iterations).1 This presumption holds steadfast in spite of the considerable scholarship, notably originating in ecofeminist thought, demonstrating the multiple ideological, discursive, and material links between human and nonhuman animal oppression advanced through dominant Western epistemologies and political, social, economic, and legal orders.2 Or, put differently, in many ways, arguments highlighting what is wrong with animal commodification and exploitation often indict Western worldviews on animals rather than seek to extend such worldviews elsewhere.

Why this presumption nonetheless persists is a complex issue. Certainly, one reason is the real and imagined whiteness of the movement (again, in its American and Canadian iterations). A further reason may be the related insufficient adoption of an intersectionalist ethic in high-profile animal rights campaigns where animal injustice is disconnected from human injustices. The perception can then flow that those who care about equality for animals do not care about vulnerable (often racialized and indigenous) humans.3

Most legal scholarship on animals in the United States does not embrace an intersectionalist orientation when discussing injustice against animals. To the extent the dearth of intersectional analysis in animal law scholarship fuels the association of animal rights with cultural imperialism, Mathilde Cohen’s Animal Colonialism: The Case of Milk is a very welcome corrective. Her short yet informative analysis about milk’s global rise compellingly illustrates the transspecies nature of law’s violence and ensuing inequalities. Specifically, Cohen shows how Eurocentric international law and trade, European dietary and legal norms in relation to animals, and European and American modernist discourses championing cow’s milk over traditional breastfeeding and maternal care occasioned a global rise of the human consumption of cow’s milk that was pivotal to empire-building throughout the world. This entailed devastating harms for colonized peoples and animals both. Continue reading "Milk’s Global Rise: A Case Study to Illuminate the Transspecies Violence of Law and Colonialism"