The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions

In his recently published book, Regulatory Takings After Knick, Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes, David Callies supplies an instructive overview of the Supreme Court’s framework for analyzing regulatory takings challenges. In so doing, he turns his attention to one of the most significant land use decisions in decades, Knick v. Township of Scott, Pennsylvania.

Nearly 100 years after its Pennsylvania Coal v. Mahon decision, the Court in Knick overruled a portion of the ripeness test for takings claims it established in Williamson Co. v. Hamilton Bank in 1985. The Knick decision eliminated the ripeness hurdle, pursuant to which, a landowner had to litigate an inverse condemnation claim in state court and have the court deny just compensation before suing in federal court. Knick left in place the finality requirement from Williamson Co., which requires a litigant to obtain a final decision from the relevant government entity before bringing a takings claim. Continue reading "The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions"

Zoom Arbitration

Amy J. Schmitz, Arbitration in the Age of COVID: Examining Arbitration’s Move Online, 22 Cardozo J. Conflict Resol. 245 (2021).

It’s already cliché, but worth saying anyway: The pandemic has shaken the entire legal industry. Much has been written about how the “new normal” has upended court systems, client advocacy, lawyer training, and so much more. From senior partners managing their firms virtually, to nervous 1Ls taking their introductory courses over Zoom, no corner of our tradition-bound profession has been spared from disruption.

But one slice of the industry was better prepared than most. In her comprehensive article in the Cardozo Journal of Conflict Resolution, Arbitration in the Age of COVID, Professor Amy J. Schmitz describes how private dispute resolution has met this moment. She also identifies important unresolved issues that scholars and practitioners must address as the legal world adapts to virtual adjudication. Continue reading "Zoom Arbitration"

Weaponizing The Law and the Cost of Lawyers in Intimate Partner Violence Actions

Across the world, millions of women experiencing violence and coercive control by an intimate partner turn to the law for help. Lawyers1 and justice systems ill-equipped to deal with this complex issue are often accused of missing, and even compounding, harms. Heather Douglas’s Women, Intimate Partner Violence, and the Law documents her study of this phenomenon. Her book is based on the results of a four-year study in which she conducted up to three interviews (n =178 interviews in total) with 65 female survivors of intimate partner violence (IPV) in Australia. Douglas sought survivors of differing backgrounds. All of the women Douglas interviewed had experienced a range of abuse from their partners, with 85% experiencing physical violence, and all some form of emotional or psychological abuse. For most of the women, the abuse continued after they left their partners, often during the study and in their interactions within the legal system. Financial abuse through actions that compound the cost of accessing the law emerges as a key theme.

Applying a feminist methodology, the book tells extended stories of women experiencing IPV. Through the perspectives of these women, the book provides a comprehensive overview of the system they encounter (child protection services, policing, courts, lawyers, and judges). The system-wide insights of this very well researched book cannot be canvassed here. Rather, this review considers the IPV survivors’ perspectives on Australian lawyers’ work. Douglas’s longitudinal approach provides an opportunity to hear how the women “construct their narratives about their interaction with the legal system and its actors and how this changes over time.” (P. 13.) What we read are “journeys [that] were harrowing, long, and expensive” (P. 2) and stories that illustrate the “messiness of the law.” (P. 6.) For example, Alex (not her real name) carefully recorded that she was required to attend civil and criminal courts on 31 occasions over a 6-month period. (P. 65.) The trauma experienced by Alex and many other women is exacerbated by the actions of their partner in filing unmeritorious applications, appeals or causing excessive delays through adjournments. The interviewees saw these as tactics motivated by a wish to control and abuse–“The courtroom is his playground,” Sandra said. (P. 166.) Douglas describes this as the “weaponization” of the legal system. (P. 182.) Continue reading "Weaponizing The Law and the Cost of Lawyers in Intimate Partner Violence Actions"

Interjurisdictional Abortion Wars in the Post-Roe Era

David S. Cohen, Greer Donley, and Rachel Rebouche, The New Abortion Battleground, 122 Col. L. Rev. __ (forthcoming 2022), available at SSRN.

The Supreme Court appears poised to overrule fifty years of precedent holding that pre-viability prohibitions on abortion are unconstitutional. In a leaked draft opinion of Dobbs v. Jackson Women’s Health Organization, Justice Alito proclaims that Roe v. Wade and Planned Parenthood v. Casey must be overruled and abortion left to the states to regulate. During oral argument in Dobbs, Justice Kavanaugh suggested that overturning Roe would return the Court to a position of “neutrality” on abortion. Justice Kavanaugh’s assertion falls in line with claims by anti-abortion jurists that reversing Roe would simplify abortion law by returning the issue to the states and getting the federal courts out of the hot-button issue of abortion.

In their draft article The New Abortion Battleground, forthcoming in the Columbia Law Review, David Cohen, Greer Donley, and Rachel Rebouche thoroughly disprove the notion that abortion law will become simpler if and when the Court overturns Roe. Given increasingly pitched polarization between red and blue states, the authors show how the abortion wars will continue in the federal courts—but will shift from constitutional battles over fundamental rights to liberty and equality to fights over principles of federalism and interstate comity raised by interjurisdictional conflicts between states and between the federal government and the states. The article is a must read for scholars and legal advocates preparing for the aftermath of the Supreme Court’s decision in Dobbs.
Continue reading "Interjurisdictional Abortion Wars in the Post-Roe Era"

Meta-Law Institutions and Substantive Predictability

Henry Smith, Equity as Meta-Law, 130 Yale L.J. 1050 (2021).

In more ways, than one, Henry Smith’s Equity as Meta-Law is an awkward fit for JOTWELL: the site, as I have long understood it, has an implicit focus on the work of emerging scholars, not very well-established ones. Moreover, the article does not easily fit into any of the subfields that JOTWELL disaggregates legal scholarship into: on the one hand, while there is quite a bit of legal history in the article, its ultimate goals are arguably more normative than explanatory or descriptive. On the other hand, it is much more historically oriented than mainstream jurisprudence, including mainstream law and economics theory. Substantively, its subject matter—equity—inevitably takes it on a tour of multiple legal domains, ranging from property to torts to contracts to procedure, but commits it to none. The best categorization of the article is probably “private law theory,” but there is no JOTWELL classification for that.

Nonetheless, the article deserves some discussion in these (web)pages simply because it is probably the most important article on private law to come out in the past few years, and will likely set the stage for numerous rounds of discussion and extrapolation in the years to come. It is one of those foundational articles that only come around once every so often. Continue reading "Meta-Law Institutions and Substantive Predictability"

The Beast of Constituent Power

George Duke, Inherent Constraints on Constituent Power, 40 Oxford J. Legal Stud. 795 (2020).

Perhaps it was the French Revolution that set it free. Since then, it haunts constitutional thought. It lures writers through a dubious promise of democratic credentials. It looms large in recent accounts of constitutional legitimacy. They have sought to “domesticate” (Pp. 796, 803; also P. 810) the beast by subjecting it to liberal and democratic constraints. But the beast resists such domestication, argues the paper. Appeal to constituent power as the source of constitutional legitimacy is deeply at odds with constitutionalism’s commitments to rights and the rule of law. One cannot both have the cake and eat it. It is either will or reason at the foundations of law. Such is the tension the author confronts us with.

This rich and insightful piece elicits reflection on a host of fundamental questions of legal and political theory. It will interest you whether you are concerned with the limits of democracy, the bootstrapping character of basic legal rules, principles of constitutionalism, or even the nature of self-determination and autonomy. It is accessible without specialist knowledge of constitutional theory. The work is more revolutionary than its title suggests. Crudely put, “Inherent Constraints on Constituent Power” argues that there are no inherent constraints on constituent power, and provides reason to think that there is no constituent power either. Let me explain. Continue reading "The Beast of Constituent Power"

The Role of Human Creativity in the Copyrightability of Artificial Intelligence-Generated Works

P. Bernt Hugenholtz & Joao Pedro Quintais, Copyright and Artificial Creation: Does EU Copyright Law Protect AI-Assisted Output?, 52 IIC – International Review of Intellectual Property and Competition Law 1190 (2021).

Do you believe in the human heart? I don’t mean simply the organ, obviously. I’m speaking in the poetic sense. The human heart. Do you think there is such a thing? Something that makes each of us special and individual?” This is a question put to Klara, the narrator of Kazuo Ishiguro’s novel Klara and the Sun, who is an “artificial friend”—an artificial intelligence (AI)-operated android- that, in a not-too-distant future imagined by the Nobel Prize winner for literature, is meant to replace companions for children.1

This philosophical question also lies at the heart of the question of the protectability by copyright of AI-generated outputs: Is there something in the human creative process that makes it unique and different from any output generated by a machine? And is the copyright system apt to incentivize and reward these moments of genius that generate new creative works and induces cultural enrichment?

In their article Copyright and Artificial Creation: Does EU Copyright Law Protect AI-Assisted Output?, Bernt Hugenholtz and Joao Pedro Quintais of the Institute for Information Law at the University of Amsterdam try to address this crucial issue from the perspective of the legal framework for copyright protection in the European Union (EU). Continue reading "The Role of Human Creativity in the Copyrightability of Artificial Intelligence-Generated Works"

Employer Accountability for Diversity Measures in a Time of Racial Reckoning

Veronica Root Martinez and Gina-Gail S. Fletcher as co-authors of a Yale Law Journal Forum essay, Equality Metrics, as well as Katrina Lee as an author of a Denver Law Review article, Discrimination as Anti-Ethical: Achieving Systemic Change in Large Law Firms, have 2021 papers that offer excellent reads and make important contributions to the discussion of ways to evaluate and hold employers accountable for their diversity commitments to their employees. In recognizing that employers have a responsibility to deliver results in response to their diversity commitments, the paper by Martinez & Fletcher and the paper by Lee both focus on transparency and accountability by seeking measurable means to determine diversity successes in the workplace.

Martinez and Fletcher focus on corporate entities of all types and Lee focuses on law firms. Both employer groups responded with increased diversity commitments and training efforts in support of the Black Lives Matter movement when heightened concerns about systemic racism arose after the senseless killing of George Floyd in July 2020. With the resulting backlash toward workplace diversity training after an Executive Order by President Trump and related initiatives, the importance of measuring diversity consequences became a key issue for 2021 that both papers seek to address. Continue reading "Employer Accountability for Diversity Measures in a Time of Racial Reckoning"

Borders and Race as Intertwined Forms of Exclusion

E. Tendayi Achiume, Racial Borders, __ Geo. L. J. __ (forthcoming, 2022), available at SSRN.

If you are a citizen of North America, Europe, Australia, or New Zealand, chances are that before the onset of the pandemic you rarely had to think twice before crossing a border. Armed with your passport and a smile, the world was wide open to you. Yet, since March 2020 you may have encountered for the first time what it means for a border to be closed—or barely open—to you. E. Tendayi Achiume’s pathbreaking new Article, Racial Borders, powerfully evinces how this experience is racialized given the asymmetry between the hyper-mobility of some compared to the enforced immobility of the majority of the world’s population, as echoed in the bell hooks quote wrapping up her analysis, “[f]rom certain standpoints, to travel is to encounter the terrorizing force of white supremacy.” Achiume concludes by emphasizing that the issue of racial borders is not primarily an immigration problem but rather one that implicates our international legal order and its fundamental inequities.

What is a national border? What is a territorial border? Achiume uses “the term ‘racial borders’ to refer to territorial and political border regimes that disparately curtail movement (mobility) and political incorporation (membership) based on race and sustain international migration and mobility as racial privileges.” Continue reading "Borders and Race as Intertwined Forms of Exclusion"

Laurie’s Legacy

Edward Dove and Niamh Nic Shuibhne (Eds), Law and Legacy in Medical Jurisprudence: Essays in Honour of Graeme Laurie (2021).

Law and Legacy in Medical Jurisprudence: Essays in Honour of Graeme Laurie, edited by Edward Dove and Niamh Nic Shuibhne, includes 18 essays that explore legacy in its various forms, and in various contexts, drawing on the many impacts and innovations to date of medical jurisprudence pioneer, Graeme Laurie.

The volume does three things particularly well. Firstly, it serves as a Festschrift honouring a great scholar. Laurie recently stepped down from the Chair of Medical Jurisprudence at the University of Edinburgh to pursue other projects. His intellectual legacy is profound, and whilst he has written on almost every medical law issue he is particularly well known for his work on liminality, human tissue, genetic privacy and information governance, and his co-authored text book on medical law. His contribution to the next generation of scholars is equally impressive, and fortunately is set to continue in his role of Professorial Fellow. Continue reading "Laurie’s Legacy"

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