Gauging Genetic Privacy

James W. Hazel & Christopher Slobogin, “World of Difference”? Law Enforcement, Genetic Data, and the Fourth Amendment, 70 Duke L.J. 705 (2021).

Human beings leave trails of genetic data wherever we go. We unavoidably leave genetic traces on the doorknobs we touch, the items we handle, the bottles and cups we drink from, and the detritus we throw away. We also leave a trail of genetic data with the physicians we visit, who may order genetic analysis to help treat a cancer or to assist a couple in assessing their pre-conception genetic risks. Our genetic data, often but not always shorn of obvious identifiers, may be repurposed for research use. If we seek to learn about our ancestry, we may send a DNA sample to a consumer genetics service, like 23andMe, or share the resulting data on a cross-service platform like GEDmatch. If we are arrested or convicted of a crime, we may be compelled to give a DNA sample for perpetual inclusion in an official law-enforcement database. Law enforcement might use each of these trails of genetic data to learn about or identify us—or our genetic relatives.

Should law enforcement be permitted to make use of each and every one of these forms of genetic data, consistent with the Fourth Amendment of the U.S. Constitution? That is the question that motivates James W. Hazel and Christopher Slobogin’s recent article, “World of Difference”? Law Enforcement, Genetic Data, and the Fourth Amendment. Hazel and Slobogin take an empirical approach to the Fourth Amendment inquiry, reporting results of a survey of more than 1500 respondents and probing which types of data access respondents deemed “intrusive” or treading upon an “expectation of privacy.” Their findings indicate that the public often perceives police access to genetic data sources as highly intrusive, even where traditional Fourth Amendment doctrine might not. As Hazel and Slobogin put it, “our subjects appeared to focus on the location of the information, not its provenance or content.” That is, intrusiveness turns more on who holds the data, rather than on how it was first collected or analyzed. Hazel and Slobogin conclude that their findings “support an argument in favor of judicial authorization both when police access nongovernmental genetic databases and when police collect DNA from individuals who have not yet been arrested.” Continue reading "Gauging Genetic Privacy"

Getting Real About Procedure: Changing How We Think, Write and Teach About American Civil Procedure

Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021).

It is time to do a gut check about the nature of civil procedure and due process in the United States. Much of the discourse among law proceduralists is divorced from the reality of how most Americans experience the court system, if they participate at all. With less than two percent of all civil cases brought in the federal courts, procedural scholars are being challenged to do some soul searching about our pedagogy and curriculum—largely centered on the federal civil system. The common proceduralist gaze falls on Supreme Court precedent and the Federal Rules of Civil Procedure—highbrow loci ripe for analysis.

But this focus misses the mark, argues Norman Spaulding in The Ideal and the Actual in Procedural Due Process. He flags that this perspective is “idealized, abstract, and ossified,” unconnected to the way things actually work. This myopia not only calls into question the relevance of much current civil process pedagogy, but has serious repercussions for the vulnerable and marginalized. Continue reading "Getting Real About Procedure: Changing How We Think, Write and Teach About American Civil Procedure"

Relating – Equally – Through Property

Hanoch Dagan, A Liberal Theory of Property (2021).

For anyone seeking a rational and convincing justification for private property, Hanoch Dagan’s newly published book, A Liberal Theory of Property, is a compelling read. The book provides an ideal – even utopian – vision of property ownership, arguing that such ownership is, and can only be, legitimate if it is “premised on a fundamental commitment to autonomy as self-determination or self-authorship.This commitment explains and justifies both the private authority that characterizes all property types and their inherent limitations.” (P. xii.) At the same time, the book provides many highly pragmatic descriptions of how property law actually functions to promote and protect self-authorship, as well as prescriptions for how to revise property law to accomplish this function more fully.

Thus, the book is not only a fascinating read for property law professors and political philosophy diehards, but it is a (perhaps surprisingly) valuable read for those who engage in lawmaking and law practice and who want to think about the practical legal value and limits of property ownership. Continue reading "Relating – Equally – Through Property"

Habeas, Hail Mary, And the Hook and Ladder

Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159 (2021).

Time ticks away. You have one shot downfield. If you don’t score a touchdown, the game’s over. Which play should you call? A Hail Mary pass into the end zone, reducing the game’s outcome to a lone, long-shot attempt? Or perhaps a trick play—a conceit from the back of the playbook with a colorful name like flea-flicker, fumblerooski, or Statue of Liberty—requiring you to avoid a series of tackles in an unlikely bid to run the ball to victory? In other words, would you rather face nearly impossible odds once or even odds a half dozen times?

Winning review of a state criminal conviction in federal court requires a higher-stakes and less fair version of the same choice among long shots. First, a criminal defendant can appeal directly to the highest civil authority by petitioning the U.S. Supreme Court for certiorari. But these prayers for relief, like Hail Marys, most often go unanswered. Second, a defendant can petition a federal district court for a writ of habeas corpus. But like the flea-flicker or the hook-and-ladder, federal habeas involves avoiding many procedural obstacles. Finally, a defendant could choose a hybrid: file a habeas-like petition for postconviction review in state court, and hope that the Supreme Court will grant certiorari after state courts deny relief. At first blush, this hybrid approach seems to combine the challenges faced by its alternatives, because to succeed it must hurdle many procedural obstacles and then complete a desperate, Hail Mary pass. Yet in Direct Collateral Review, a dazzling tour through both postconviction doctrinal weeds and high habeas theory, Payvand Ahdout shows that this hybrid approach has promise for individual criminal defendants and the development of constitutional doctrine. There are even substantial benefits for judicial federalism, because the Supreme Court can supervise the application of federal rights in state courts without undermining the presumption of parity between federal and state trial courts. Continue reading "Habeas, Hail Mary, And the Hook and Ladder"

Is an “Arbitral Court” an Oxymoron?

Pamela K. Bookman, Arbitral Courts, 62 Va. J. Int’l L. 161 (2021).

Once upon a time, litigators faced a clear choice among competing dispute resolution procedures. You could litigate. You could arbitrate. Or you could mediate. Early generations of dispute resolution scholars imagined these processes as being wholly distinct. Frank Sander, during the famed 1976 Pound Conference, envisioned a “multi-door courthouse” where disputes could be neatly grouped—with the ease of a Harry Potter-esque sorting hat—into the most appropriate resolution mechanism.

Over the past couple decades, these once-discrete processes have become more muddled. This is particularly true for complex commercial and international disputes. Processes converge and exist parallel to one another across jurisdictions. Parties may litigate the scope of an arbitration clause or the enforceability of an award. They may mediate one branch of a dispute while arbitrating another. They may also mix and match aspects of each procedure with blended processes like “med-arb” or “arb-med.”

Domestic and international court systems have both responded to, and shaped, this complicated reality. Pamela Bookman is among the clearest analysts of these trends in judicial innovation. Her new piece, Arbitral Courts, analyzes exactly what its title suggests: public courts that adopt many of the features of private arbitration. Oxymoron? Maybe. New reality? Definitely. Continue reading "Is an “Arbitral Court” an Oxymoron?"

Why Ethical Climate Matters in Newly Admitted Lawyers’ Workplaces: An Empirical Examination of Ethical Climate, Job Satisfaction, and Lawyer Wellbeing

Stephen Tang, Vivien Holmes, and Tony Foley, Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers, 33 Geo. J. Legal Ethics 1035 (2020).

In 1999, then-Professor Patrick Schlitz published a provocative article called On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession.2

Fast forward 20 years, to the results of an empirical study conducted by Professors Stephen Tang, Vivien Holmes, and Tony Foley and discussed in their article, Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers. This article examines the role ethical climate plays in influencing ethics and the connection between perceived ethicality and lawyer satisfaction. With heightened concern related to lawyer well-being and remote work, I commend the authors for conducting an ambitious study and urge you to read their article to learn more about their findings and recommendations. Continue reading "Why Ethical Climate Matters in Newly Admitted Lawyers’ Workplaces: An Empirical Examination of Ethical Climate, Job Satisfaction, and Lawyer Wellbeing"

Tracking Change and Continuity in Twenty-First Century Copyright Fair Use

Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions Updated, 1978-2019, 10 N.Y.U. J. Intell. Prop. & Ent. L. 1 (2020).

In the past sixteen years, copyright law has undergone important changes. Court have issued major decisions, such as Skidmore v. Led Zeppelin, which clarified the Ninth Circuit’s substantial similarity test and rejected the inverse ratio rule, and Capitol Records, LLC v. Vimeo, LLC, in which the Second Circuit elucidated a more concrete red flag knowledge standard for purposes of the Digital Millennium Copyright Act. Significant new copyright legislation, in the form of the Music Modernization Act, has also been promulgated. And during this period, fair use jurisprudence has also continued to grow apace. Many of the cases that are now considered copyright law canon for students, academics, and practitioners alike were decided during this period, including Bill Graham Archives v. Dorling Kindersley, Ltd., Perfect 10, Inc. v. Amazon.com, Inc., Cariou v. Prince, and Authors Guild, Inc. v. Google, Inc. Barton Beebe’s recent article analyzing fair use opinions from 1978 to 2019 thus provides a welcome update to his earlier work that covered fair use cases from 1978 through 2005.

Both Beebe’s original article and this update use statistical analyses of all the fair use opinions issued during the period to draw conclusions about how judges have applied the four fair use factors and their subparts. Beebe’s earlier work provided an important statistical analysis baseline for anyone wanting to understand, modify, or improve fair use. This long-awaited update will no doubt prove useful in providing the most recent data on fair use determinations to those in the copyright space. Continue reading "Tracking Change and Continuity in Twenty-First Century Copyright Fair Use"

Understanding the Competitive Effects of a Public Option

Brendan S. Maher, The Private Option, 2020 Mich. St. L. Rev. 1043 (2021).

Proposals to allow individuals to buy into a public health insurance program such as Medicare have been circulating for over a decade and have been the subject of much academic work. In The Private Option, Professor Brendan Maher offers an important addition to that literature by exploring how the competition between public and private payors that is inherent in public option proposals is likely to play out with respect to three key functions of health insurance: risk bearing, cost control, and ensuring quality care. It is a careful, highly readable, and non-ideological piece of scholarship that should be helpful to a range of stakeholders – from students trying to understand how health insurance markets function to policymakers trying to weigh the benefits of current health reform proposals. While not Pollyanna-ish, the article is ultimately hopeful, making an underappreciated case for the public option by explaining how competitive pressure from a public payor might result in better private health insurance options.

The article begins by explaining the various roles that health insurers play in the United States, focusing on three primary functions: risk-bearing, cost control, and encouraging quality care. The remainder of the article is devoted to evaluating how private payors might behave in a world in which they must compete against a public option. This evaluation is accomplished by assessing the comparative advantages of public and private payors with respect to the three primary functions of insurers previously identified. With respect to risk-bearing, the article unsurprisingly concludes that public payors have an enormous advantage over private payors. Indeed, Maher admits, if insurers were solely serving a risk-bearing function, no private payor could effectively compete with the government. As a result, it is unlikely that a public option would create genuine competition with respect to the risk-bearing function of insurance. Continue reading "Understanding the Competitive Effects of a Public Option"

There Is No International Legal Order Beyond Capitalism

Ntina Tzouvala, Capitalism as Civilisation (2020).

In recent decades, a new wave of critical literature highlighted how the concept of “civilization” emerged in the 19thcentury as a rubric to judge countries as worthy (or not) of admission to the European order of international law. Today this scholarship is commonly referred to as the “historical turn” in international legal scholarship. Much of this literature explored the problematic racialized origins of the term “civilized,” as well as its persistent impact on international law today. In this context, Ntina Tzouvala’s Capitalism as Civilisation presents a next-generation interpretation of the legacy of “civilization” of international law today.

Tzouvala’s book is ambitious on a number of fronts. She approaches “civilization” not as a singular term but as an argumentative pattern driven by an oscillation between what she calls the “logic of improvement” and the “logic of biology.” “Improvement” here refers to international law’s embrace of progressive universalism, and “biology” refers to assertions of immutable cultural difference. While these ideas are seemingly at odds, Tzouvala emphasizes how these dual logics exist in productive tension. Together, they kept those once deemed “uncivilized” as perpetual objects of needed reform and irresolvable incompatibility.

But Capitalism as Civilisation is even more ambitious than simply providing this new framing of the now well-established “historical turn.” The book can be read as a generational statement about what critical scholarship on international law should and can be. Within a single volume it attempts to provide a convincing synthesis of core tensions in the field, if not in critical scholarship more generally. With care and confidence, Tzouvala’s aims to integrate material analysis into the predominately discursive and deconstructive focus of her critical predecessors on the indeterminacy of international law. Continue reading "There Is No International Legal Order Beyond Capitalism"

Understanding Bentham’s Theories of Meaning and Publicity

Professor Gerald Postema’s new book, Utility, Publicity and Rights, offers a brilliant set of essays on Jeremy Bentham’s jurisprudence, complementing his previous works. In Jeremy Bentham and the Common Law Tradition, Postema departed from received interpretations that misread Bentham in two ways: first, decoupling Bentham’s normative moral and political theory from his jurisprudence and failing to explain the foundational role of utility in his account of the nature of law; second, underestimating the impact of Bentham’s legal positivism in practical reasoning and adjudication.1

Like his previous work, Postema’s new book is a major contribution to the pursuit of integrity in Bentham’s jurisprudence. One of its merits is that it not only builds on the principle of utility but also unpacks two less known while no less foundational doctrines in Bentham’s philosophical system: his theory of meaning and his psychological theory.2 The book is divided in two parts. The first focuses on Bentham’s basic philosophical commitments. Chapter 1 introduces his account of language, epistemology, and ontology, offering a quasi-pragmatist interpretation of his theory of meaning. Chapter 2 turns to Bentham’s psychological theory to single out the self-regarding interests and social motives that can play a role in one’s individual and social life. The rest of the first part discusses Bentham’s utilitarian theory of value, with special reference to his expressivist meta-ethics (chapter 3), his theory of publicity (chapter 4), his account of equality (chapter 5), and the role of universal interests in Bentham’s moral and political theory (chapter 6). Postema describes these elements as integral parts of the meaning of utility, which play a foundational role in understanding the specific topics of the second part. Continue reading "Understanding Bentham’s Theories of Meaning and Publicity"

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