The Attorney-Client Privilege Goes to Washington

David Rapallo, House Rules: Congress and the Attorney-Client Privilege, 100 Wash. U. L. Rev. 455 (2022).

The 118th Congress has pursued a robust investigatory agenda, probing topics from the origins of COVID-19 to Hunter Biden to “greed in the pharmaceutical industry.” Such investigations are hardly new. But the future utility of such investigations may depend on a cryptic aside made by Chief Justice Roberts in the Court’s 2020 decision in Trump v. Mazars. Roberts stated that recipients of congressional subpoenas “have long been understood to retain common law and constitutional privileges,” including the ability to assert the attorney-client privilege. Scholars have spilled significant ink over the significance—if any—of this statement. In House Rules: Congress and the Attorney-Client Privilege, David Rapallo examines how to best understand Roberts’s statement. In doing so, he delves into an underexamined corner of evidence scholarship: the application of privileges outside of judicial proceedings.

Mazars did not involve an assertion of privilege. Consequently, as Rapallo explains, some scholars dismiss Roberts’ statement as “nothing more than erroneous and ill-informed dictum.” Others view the statement as affording subpoena recipients absolute protection for attorney-client communications, representing a “sweeping change.” It would mean the judiciary—not Congress—decides the evidentiary rules that apply to congressional investigations. While Roberts discussed only the attorney-client privilege, continuing down that road could require Congress to recognize other privileges or evidentiary rules rooted in common law.

Rapallo threads these two extremes by suggesting a third path to understand Roberts’ statement: “[r]ecipients of congressional subpoenas who are compelled to produce information to Congress retain their right to assert the attorney-client privilege in other venues.” For those versed primarily in how privileges work in judicial proceedings, the notion that the attorney-client privilege may not apply to all investigatory proceedings may seem surprising. But Rapallo makes a compelling case from a somewhat surprising starting point: separation of powers. Continue reading "The Attorney-Client Privilege Goes to Washington"

Empire of the Rule of Law

Christian R. Burset, Redefining the Rule of Law: An Eighteenth-Century Case Study, 70 Am. J. Compara. L. 657 (2022).

There is a traditional narrative about law and legality that scholars have told, in various forms, since the late nineteenth century.1 In this telling, generalized, formal law emerged as an institutional response to sociopolitical flattening and socioeconomic distancing. As societies transitioned from “status to contract,” abandoning traditional hierarchies in favor of ideals of individual equality, formal equality before the law became more attractive.

Similarly, as economic activities expanded beyond the horizon of closely knit social networks, the institutional need for stranger-oriented transactions and collaboration created immense demand for formal legal institutions that supplied uniformity and reliability across highly diverse socioeconomic terrain.2 Correspondingly, new ideas of “law,” “legality,” and “the rule of law” emerged.

What has too often been missing from these narratives is a compelling account of the transition itself: how socioeconomic need translated into concrete political, intellectual, institutional change. The idea that demand produces supply over the long term may well be correct, but the specific mechanisms of that supply nonetheless deserve careful study, not least because it tends to affect the final institutional product in both form and substance.

In Redefining the Rule of Law: An Eighteenth-Century Case Study, Christian R. Burset provides a precisely argued, expertly documented, and intellectually sophisticated account of one such mechanism. Through an examination of legal-political dialogue in the eighteenth-century British empire, Burset demonstrates that the specific experience of colonialism generated much of the intellectual and political energy behind modern “rule of law” ideals that have gained both dialogical and institutional dominance in the Anglosphere. Continue reading "Empire of the Rule of Law"

Still engaging: The Fish–Dworkin Debate

New Essays on the Fish-Dworkin Debate (Thomas Bustamante & Margaret Martin eds., 2023).

“What could there be but amiability between two nice Jewish boys from Providence, Rhode Island?”

Those were the words of Stanley Fish during one of Ronald Dworkin’s seminars at NYU, to which he was invited by a fierce intellectual opponent: Dworkin himself. The episode is recalled by Professor Fish in an interview conducted by Thomas Bustamante and Margaret Martin, editors of New Essays on the Fish-Dworkin Debate—an excellent collection of essays dedicated to the (still neglected) exchange between Dworkin and Fish. When I say ‘neglected’, I say so because this book, recently published by Hart Publishing, is the first volume entirely dedicated to this debate that still carries important implications in contemporary jurisprudence (in contemporary philosophy tout court, I would say), from matters that range from interpretation and objectivity to the very enterprise of theorising itself. The interview—impressively illuminating and fun to read, one should add—finishes the volume and is preceded by 19 chapters divided in four parts. Continue reading "Still engaging: The Fish–Dworkin Debate"

Taxing Collusion

Rachel Landy, Downstreaming, 65 B.C. L. Rev. ___ (forthcoming, 2024).

Commentators have long raised the alarm about over-consolidation in the entertainment industries and the resulting barriers to entry seen in the downstream market. One line of scholarship identifies copyright law as a lever that policymakers might use to promote new entry into the copyright industries. Another looks to antitrust law to alternately break up, or prevent, over-consolidation. Some scholars have suggested utilizing both copyright and antitrust. Still others, myself among them, have expressed skepticism in the ability of either copyright or antitrust to effectively remedy the problem, and instead hope to borrow regulatory ideas from other contexts.

In an engaging new article, Rachel Landy takes a fresh look at the challenge of over-consolidation and power in the music industry, and proposes two novel approaches­­—tax and mandated transparency—for restoring competition and encouraging market entry in the streaming music space. Continue reading "Taxing Collusion"

Constitutional History and the Historical Constitution

Harshan Kumarasingham, The Historical Constitution, in 1 The Cambridge Constitutional History of the United Kingdom (Peter Cane & H. Kumarasingham eds., 2023).

There is much to like in the new two volume Cambridge Constitutional History of the United Kingdom, a masterful compendium of theory and history from leading scholars, covering everything from King Æthelred the Unready to Liz Truss (similarly unready).1 As a comparative matter, however, it is Harshan Kumarasingham’s excellent opening chapter The Historical Constitution, that resonates with current debates in the United States.

As the U.S. Supreme Court falls further and further in thrall to history, with its attending assumptions of neutrality, certainty, and truth, it is illuminating to read about constitutional history in the United Kingdom. Kumarasingham recognizes that “[a]ll constitutions rely on history” (P. 3), but in his telling, history is acknowledged both as constitutive of the British constitution and as a political construct. The candor is refreshing. Continue reading "Constitutional History and the Historical Constitution"

Digital Reproductive Privacy in a Post-Dobbs World

Leah R. Fowler & Michael R. Ulrich, Femtechnodystopia, 75 Stan. L. Rev. 1233 (2023).

The first two sentences of the abstract for Leah R. Fowler’s & Michael R. Ulrich’s Femtechnodystopia are stunning but accurate: “Reproductive rights, as we have long understood them, are dead. But while history seems to be moving backward, technology moves relentlessly forward.” (P. 1233.)

The law often trails behind technology, especially reproductive technology. Femtechnodystopia focuses on fertility awareness-based contraception and proception apps and how these apps, which can enable users to take control over their reproductive lives, can, in a post-Dobbs world, be (legally) dangerous to users. After discussing the many benefits and perils of Femtech, Professors Fowler and Ulrich argue that there are three key criteria that Femtech must satisfy in order to avoid a potential dystopian future: “apps must be accurate, the data they contain must be kept private and secure, and the consumer must be aware of their risks and limitations.” (P. 1240.) Continue reading "Digital Reproductive Privacy in a Post-Dobbs World"

Egg Donation, Commodification, and Coercive Payments

Kimberly D. Krawiec, Gametes: Commodification and The Fertility Industry, The Routledge Handbook of Commodification, Vida Panitch and Elodie Bertrand eds., (forthcoming 2024), available at SSRN (Apr. 22 2023).

A growing number of couples and individuals use some combination of in vitro fertilization (IVF) clinics, egg donors,1 sperm donors, and gestational surrogates to have children. But these ways of helping the infertile have children have raised moral qualms. Kimberly D. Krawiec’s paper, Gametes: Commodification and The Fertility Industry, offers a concise and persuasive overview of one small part of the debate: moral objections that have been raised to egg donation and payments for egg donation.

As Krawiec notes elsewhere, “[t]he United States is unusual among most jurisdictions in that it permits a legal market in human eggs.”2 And as this paper elaborates, much of the regulation of compensation for egg donors has occurred in an indirect way. The vast majority (as of 2018, 86%) of IVF clinics were members of the Society for Assisted Reproductive Technology (SART) (P. 5). SART, in turn, required its clinic members to follow certain “best practices,” including the guidelines for egg donor compensation set by a different group, the American Society for Reproductive Medicine (ASRM) (P. 5). Continue reading "Egg Donation, Commodification, and Coercive Payments"

The Intersection between Race and National Security

Matiangai V. S. Sirleaf, Race and National Security (2023).

The book, Race and National Security, edited by Professor Matiangai V. S. Sirleaf, of the University of Maryland Francis King Carey School of Law, offers us a historic opportunity to change our political imaginary. This book delivers on its promise to “fully excavate[] the question of how race and racism relate to national security domestically, transnationally[,] and internationally.” In the words of Walter White, Executive Secretary of the National Association for the Advancement of Colored People (NAACP) from 1929–1955:

Race discrimination threatens our national security. We can no longer afford to let the most backward sections of our population endanger our country by persisting in discriminating practices. We must meet the challenge of our neighbors, not only because discrimination is immoral, but also because it is dangerous.

Although White’s critique continues to be true today, in the context of the broader conversation on national security, it is now clear that White’s focus on discrimination provides an insufficient framework. One of the many achievements of Race and National Security is that it centers a framework not of discrimination, but rather of racial justice, one that focuses on addressing institutional racism and anti-subordination. The growing general focus on racial justice, both on a national and a global scale, coupled with the continuous resistance against established racial norms, justifies the book’s deliberate examination of these issues and serves as the driving force behind this book. The authors contributing to the volume look at national security law as complicit in furthering systemic inequality from an anti-subordination positionality. They illustrate practices and policies that, whether by intent or effect, enforce the subjugated social status of historically oppressed communities within societies across the globe under the protective umbrella of national security. Thanks to their work, we are now able to draw interesting connections among the various ways these racial injustices work. Continue reading "The Intersection between Race and National Security"

Imagining Healing and Accountability through Reparations for Police Violence

Alexis Karteron, Reparations for Police Violence, 45 N.Y.U. Rev. L. & Soc. Change 405 (2021).

Reparations for the harmful impacts of policing on Black communities—and other communities of color—attracted attention when it became plank of Black Lives Matter founder Patrice Cullors’ demands for police and prison abolition. However, the Cullors remarks on reparations are more suggestive than definitive for a well-worked out reparations program. Into this void has stepped Professor Alexis Karteron, who recognizes that standard approaches to police accountability work primarily to provide individualized and episodic remedies, despite the police often harming whole communities through their assaults on identifiable individuals. Karteron argues that a reparations framework can contribute to developing community-wide and structural remedies. This reparations approach provides an important alternative to the individualized account of harm and redress familiar in criminal law theorizing, and highlights the special way that reparations can play a role in police accountability.

Karteron’s promotion of community-wide reparationist remedies builds on her discussion of other, more individualized forms of police accountability and their serious limitations. For example, Karteron identifies the serious drawbacks of constitutional tort claims under 42 U.S.C. §1983 and state law equivalents. These lawsuits focus on discrete police harms, one person at a time. The legal system presents often insurmountable informational, financial, and procedural hurdles. For example, state exhaustion requirements, usually under the state’s tort claims act legislation and federal constitutional law, may make it hard for a plaintiff to find counsel willing to represent a victim of police violence. Often, they also have a very short time period in which to secure counsel because of these exhaustion rules. Other legal doctrines, such as standing to bring suit and the statute of limitations, further operate to narrow access to the two major legal remedies: monetary damages and injunctive relief. At best, only direct victims who have suffered an “actual injury” receive compensation, while witnesses, family members, and other bystanders get nothing, even though they may be directly traumatized or otherwise impacted by police violence. To the extent that the community has a remedy through injunctive relief, the scope of injunctions is limited by doctrines disfavoring judicial oversight of the executive branch, and especially law enforcement. Continue reading "Imagining Healing and Accountability through Reparations for Police Violence"

Investigating the When and Why of the First Black Jurors

Thomas Frampton, The First Black Jurors and the Integration of the American Jury, 24 N.Y.U. L. Rev. __ (forthcoming, 2024), available at SSRN (Sept. 5, 2023).

Thomas Frampton’s article The First Black Jurors and the Integration of the American Jury reads like an exciting book giving us a new perspective on the first black jurors. It helps us better understand the jury as a democratic institution.

We know juries decide few cases—less than 1% of civil cases and less than 4% of criminal cases. And we are still trying to discover why. The question is complicated. At least one scholar has proffered that it may have to do with race—that as the jury has become more diverse, juries have disappeared.

This narrative makes Frampton’s article even more interesting. To understand more about whether diverse juries have led to fewer jury trials, we need to discover when and why juries became diverse. The answers to these questions also help us think about other important rights such as citizenship. Continue reading "Investigating the When and Why of the First Black Jurors"

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