Apr 6, 2018 Shelley Ross SaxerProperty
Maureen E. Brady,
The Damagings Clauses, 104
Va. L. Rev. (forthcoming 2018), available at
SSRN.
In her article, The Damagings Clauses, Professor Molly Brady comprehensively analyzes provisions known as “damagings clauses,” which twenty-seven states have enacted in their constitutions. Her work explains the history of their enactment, the courts’ interpretation of these clauses over time, and the potential for reenergizing these constitutional claims to address governmental damages and injuries to property owners that takings jurisprudence or the common law may not otherwise remedy.
Professor Brady’s stated goals for the article are to persuade readers that “there is a place for damagings within condemnation law, that this neglected constitutional provision has the capacity to address a confusing and undertheorized gap in the application of the compensation requirement, and that courts have lost sight of the language’s history in narrowly construing it.”
She has certainly persuaded this reader, and I encourage anyone working in eminent domain law, regulatory takings law, or property law to read this article. Continue reading "So What Are the “Damagings” Clauses and Why Do We Care?"
Apr 5, 2018 Tom SimmonsLexElder Law
John H. Langbein,
Absorbing South Australia’s Wills Act Dispensing Power in the United States: Emulation, Resistance, Expansion, 38
Adelaide L. Rev. 1 (2017), available at
SSRN.
Yale’s Professor Emeritus John Langbein, who introduced the harmless error idea to will formality requirements a few decades back, returns to the place where it all began in Absorbing South Australia’s Wills Act Power in the United States: Emulation, Resistance, Expansion. It began, legislatively speaking, in South Australia. In 1975, South Australia’s State Parliament enacted a statute validating wills with formality defects so long as it was proved that the decedent intended the document to be her will. This “dispensing power” idea soon infected other common law nations, including the United States. Now, a new chapter is being written as a fresh trend emerges: making bequests via electronic technology.
Following a concise review of the common law world’s absorption of Australia’s innovation, sustained through legislative activity, case law, and scholarship, Langbein turns to “a completely unforeseen development – the enforcement of so-called digital or electronic wills.” (P. 1.) A harmless error in the execution of a will should not result in invalidation if there is convincing evidence that the decedent truly intended the document in question to constitute her will. A defect in the “line of sight” or “conscious presence” requirements for witness attestation, for example, ought not to invoke intestacy where other evidence convinces us that the decedent was trying to make a valid will. Today, we are beginning to see a new variety of technically deficient wills – paperless ones. Is the harmless error doctrine equipped to deal with digitized bequests? Or is a new framework for electronic wills necessary? Langbein deftly considers these important questions in this compulsively readable reprinting of a lecture he delivered in Australia in 2017. Continue reading "Dispensing (With) Electronic Wills"
Apr 4, 2018 Elaine CraigEquality
Amanda Dale,
Gun Control and Women’s Rights in Context: Reflections of the Applicant on Barbra Schlifer Commemorative Clinic v Canada, 13
J.L. & Equal. 61 (2017), available at
HeinOnline.
In Gun Control and Women’s Rights in Context: Reflections of the Applicant on Barbra Schlifer Commemorative Clinic v Canada, Amanda Dale not only provides the reader with an embodied account of law that exemplifies the limits of legal discourse, she also offers a compelling (and disheartening) explication of how and why the Stephen Harper government’s repeal of the long-gun registry threatens the lives of women.
As Dale points out, gun control in Canada is different from that in the United States. Canadian gun control laws are, of course, much more robust. For example, restricted weapons, such as handguns, have been subject to gun control legislation, including a registry, since 1932. However, a Canadian registry for long guns (shotguns and rifles) was not put into place until 1995 – following a mass shooting in Montreal that engendered significant activism aimed at reducing violence against women. The shooter targeted women and said he was motivated by a hatred of feminists. Noting that most women are shot by people they know and that most domestic violence involving firearms involves legally owned shotguns and rifles, Dale explains the connection between the protection of women’s physical safety and the need for a long-gun registry. Continue reading "Women and Guns"
Apr 3, 2018 Andres GuadamuzTechnology Law
Bitcoin was created in 2009 by a member of a cryptography mailing list who goes under the pseudonym of Satoshi Nakamoto, and whose identity is still a mystery. The project was designed to become a decentralized, open source, cryptographic method of payment that uses a tamper-free, open ledger to store all transactions, also known as the blockchain. In a field that is replete with hype and shady operators, David Gerard’s book Attack of the 50 Foot Blockchain has become one of the most prominent and needed sceptical voices studying the phenomenon. Do not let the amusing title you deter you; this is a solid book filled with solid and thorough research that goes through all of the most important aspects of cryptocurrencies, and it is one of the most cited take-downs of the technology.
The book covers a wide range of topics on cryptocurrencies and blockchain, and does so in self-contained chapters that can be read almost independently. The book does not follow a strict chronological order. This structure actually makes the book entirely more readable and a delight from cover to cover, not only because of the interesting subject matter, but also because of Gerard’s wit and knowledge. Continue reading "New Kids on the Blockchain"
Apr 2, 2018 SpearItCriminal Law
Gabriel S. Mendlow,
The Elusive Object of Punishment (Draft, March 11, 2018), available at
SSRN.
In the adjudication of criminal law, judges tend to agree upon the elements that make up a given crime, but are less certain about exactly which element the law seeks to punish. For example, in child pornography possession statutes, it is difficult to determine the underlying transgression that is targeted by the punishment. Is it the act of possessing the images that is blameworthy or is there something else? And if so, what? Does the law actually seek to punish certain thoughts that the images engender – particularly to steer people away from thinking about children in a certain way? The closer one looks, the more one might suspect that the law is punishing thoughts about certain images. From this perspective, the crime of possession takes the shape of a thought crime more than anything else. However, this very state of mind—which might be the true object of punishment—is not even an element of the offense.
Gabriel S. Mendlow’s The Elusive Object of Punishment highlights such uncertainties in criminal law and how they might produce unfair punishment practices. As the author notes, these uncertainties “underlie an assortment of familiar disputes—over venue and vagueness and mens rea, over whether an offender’s sentence is proportionate to his offense, and over whether the offense itself is a legitimate object of punishment…Yet these disputes may hinge on deeper disagreements about the identity of the wrong a law punishes.” Through careful statutory analysis, Mendlow makes a powerful case that the object of punishment can be obscure and elusive, and that justice may suffer as a result. Continue reading "Why We Punish: Lessons in Indeterminacy"
Mar 30, 2018 Susan FortneyLegal Profession
Many professors reading this review teach professional responsibility courses. These courses cover the law of lawyering, commonly focusing on the ABA Model Rules of Professional Conduct. As revealed in a small survey that I conducted in 2011, many professors do not devote much attention to studying legal malpractice law. The survey revealed that an even smaller percentage cover legal malpractice insurance. As a result, the majority of law students likely graduate without the basic understanding of legal malpractice insurance and without considering the crucial role that insurance plays in a professional’s practice. Professors’ failure to discuss the role insurance plays in helping lawyers function as accountable professionals may contribute to the large number of lawyers who fail to carry legal malpractice insurance. From the standpoint of access to justice, uninsured lawyers may leave injured persons without a remedy because experienced malpractice counsel often decline to sue lawyers who do not carry insurance or have significant assets to cover a malpractice judgment or settlement.
Among practice settings, solo practitioners constitute the largest group of uninsured lawyers. Although some scholars have studied the role that insurance plays in affecting the conduct of lawyers in large firms, no one has studied the issues related to malpractice insurance and solo practice. That is why I especially liked Lawyers Going Bare and Clients Going Blind by Leslie C. Levin. The article provides a fascinating window into the world of uninsured solo lawyers. Continue reading "A Portrait of Uninsured Lawyers: Using Empirical Data to Enhance Public Protection"
Mar 29, 2018 Ezra MitchellCorporate Law
Mariana Pargendler,
How Universal is the Corporate Form? Reflections on the Dwindling of Corporate Attributes in Brazil (2017), available at
SSRN.
The proliferation of what might generally be called the convergence literature over the past several decades has brought new insights into the study of corporate governance. In particular, it has allowed scholars to identify and seek to understand diversities in corporate practices, despite what appears to be more or less unity of form.
Mariana Pargendler’s excellent new paper brings exciting insight to the conversation. Acknowledging the apparent universality of the core features of corporate law, she engages in a study of Brazilian law and its evolution over the past several decades to demonstrate that Brazilian courts and legislators have significantly diluted these elements. Significant diminution of the protection of limited liability, legal personality and capital lock-in, share transferability, delegated management, and ownership by investors are leading to a well-functioning but distinctly different concept of business enterprise, while continuing to appear to maintain most of the structural features of the corporate form. Whether this transformation eventually will result in new legislation creating a new form of business enterprise is anybody’s guess, and Pargendler sensibly notes the recency of these developments and the inability to predict where they go. Nevertheless, as she notes: “In some respects, Brazilian law is dream come true for progressive corporate law scholars … .” (P. 53.) Her facilitation of that dream is a welcome addition to the literature. Continue reading "A Dream Deferred?"
Mar 28, 2018 Brian BixJurisprudence
Stanley L. Paulson,
Metamorphosis in Hans Kelsen’s Legal Philosophy, 80
Modern L. Rev. 860 (2017), available at
SSRN.
Though Hans Kelsen is arguably the best-known and most influential legal philosopher of the 20th century world-wide, he is not especially well known among American scholars, and when his work is discussed in this country, it is often misunderstood. One scholar who has worked tirelessly for decades to make Kelsen better known and better understood on these shores is Stanley L. Paulson. He has (with the help of Bonnie Litschewski Paulson) translated Kelsen’s works, written numerous articles summarizing and evaluating Kelsen’s work, and translated and compiled other significant commentaries on Kelsen. Paulson’s most recent article, “Metamorphosis in Hans Kelsen’s Legal Philosophy,” (a) explains the neo-Kantian approach of most of Kelsen’s works (Pp. 876-880), (b) discerns certain weaknesses in the argument (Pp. 880-881, 893), and (c) investigates when and why Kelsen ultimately abandoned a neo-Kantian approach, and also changed his views about the application of logic to (legal) norms (Pp. 861-865, 882-892).
Anglo-American legal scholars are accustomed to a more empirical and pragmatic approach to philosophy in general, and to the study of law in particular, which is why H. L. A. Hart’s approach has been well received. What has made Kelsen’s works so difficult for us is that his best-known writings are grounded in a very different approach, one based on Kant’s transcendental argument. As Paulson explains, Kelsen’s neo-Kantian argument goes along the following lines: We need to ask what follows from the fact that we (or “legal science”) view the acts of officials as valid legal norms. The mystery is grounded in the fact that the actions of officials are in the empirical realm (facts about what legislators, judges, administrators, and other officials have done or said), while legal rules are in the normative (non-empirical) realm. A standard philosophical view is that normative conclusions cannot be derived from strictly empirical premises. Continue reading "The Transformation in Kelsen’s Last Works"
Mar 27, 2018 Mathilde CohenInternational & Comparative Law
Sherally Munshi,
Comparative Law and Decolonizing Critique, 65
Am. J. Comp. L. 207 (2017), available at
SSRN.
In her magisterial essay, Comparative Law and Decolonizing Critique, Sherally Munshi invites us to undertake a “decolonizing critique” of comparative law, which entails reflecting about “our responsibility towards and recognition of difference” and “the relevance of comparative study to the societal exigencies of our particular moment.” The occasion for the essay is a special issue of the American Journal of Comparative Law dedicated to Pierre Legrand’s book-length article Jameses at Play in which he identifies two irreconcilable strands of comparative legal studies—positivism and culturalism—advocating for the latter.
Munshi’s reading of Legrand is but a stepping stone for a momentous contribution to the debate over the raison d’être of comparative law. She proposes an “alternative approach” that “might play an important role in decolonizing and democratizing legal thought.” Her vision is one of a “broadly expanded comparative law, one that assumes a leading role in addressing an entrenched Eurocentrism in legal discourse while providing hospitable ground for a variety of critical and interdisciplinary projects, especially those that might join in the effort to decolonize higher education and to project alternative, more equitable forms of coexistence.” Continue reading "Decolonizing Comparative Law"
Mar 26, 2018 Eloise PasachoffAdministrative Law
Regionalism in America is having a renaissance—in conceptualizing the shared and competing interests of red, blue, and purple states; in developing new possibilities for governance across the country; and in administrative law scholarship. Into this mix comes Jessica Bulman-Pozen’s timely and thoughtful article, Our Regionalism. While we usually talk about “Our Federalism,” regionalism has in fact “shaped American government over the past century,” helping to define “how power flows to and within the federal government.” (Pp. 381-382.) In making this case and exploring how regionalism’s different governance forms have, over time, both expanded the federal bureaucracy and increased state power within federal programs, Bulman-Pozen’s work also helps frame the contemporary stakes for the American polity of “regionalism’s ‘bad twin,’ sectionalism.” (P. 380.)
After first offering a “stripped-down understanding” of the term “region”— “a subnational area encompassing all or part of multiple states” (P. 383) —the article begins with a helpful taxonomy that justifies Bulman-Pozen’s claim that “regional organization pervades state and federal administration.” (P. 388.) In her conception, regional governance has developed over time to encompass three main varieties. First is interstate collaboration, in which states band together to solve a common problem. The interstate compact, provided for by Article I, Section 10 of the Constitution, is the oldest and most common of this form of regional governance, but other types exist as well, including interstate agreements (less formal than compacts because they allow for unilateral withdrawal), and “the synchronized adoption of substantially similar laws” in neighboring states. (P. 387.) Continue reading "Regional Administration and the American Experiment"
