Oct 5, 2017 Gregory KeatingTorts
Aaron James,
The Distinctive Significance of Systemic Risk, 30
Ratio Juris 239 (2017), available at
SSRN.
In one of his more famous aphorisms, Oliver Wendell Holmes remarked that “[o]ur law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like,” whereas “the torts with which our courts are kept busy to-day are mainly the incidents of certain well known businesses … railroads, factories, and the like.” In the 120 years since Holmes penned his remark, our social world has become ever more organized. Holmes wrote before the mass production of consumer products and before environmental harms on a global scale existed. Indeed, Holmes seems to have had in mind just one kind of systemic risk, namely, the repeat imposition of the same risk by an institution that repeats the same action over and over again. Railroads, for instance, run trains past the same intersections on a regular basis.
We are familiar with more advanced and diverse forms of systemic risk. Some products are characterized by risks that are present every time the product is used but that are responsible for physical harm only relatively rarely. Many product design defects are like this. The Ford Pinto gas tank is a case in point. The defective design was present in every Ford Pinto but its risks remained dormant until a car was involved in a collision. Other products impose unacceptable risks every time someone is exposed to them. Asbestos is the most notorious example. In still other cases, the independent actions of innumerable people coalesce into a critical mass and that critical mass imposes a major risk. Climate change is a case in point. It is surprising, then, that the distinctive issues raised by systemic risk imposition have received so little attention, and heartening to see that sophisticated political philosophers have now begun to pay them heed. In The Distinctive Significance of Systemic Risk, Aaron James, a political philosopher at the University of California at Irvine, zeros in on several of the thorniest moral issues presented by practices of systemic risk imposition. James is preoccupied with two questions. Continue reading "Is Systemic Risk Special?"
Oct 4, 2017 Eric J. MillerCriminal Law
Victims have recently assumed a privileged place within criminal justice policy. The criminal justice system has sought to promote victims’ rights, to provide the victims of crime meaningful opportunities to participate in the prosecution of cases. But in promoting victims’ rights, the criminal justice system sometimes loses track of victim’s duties. In seeking to shield victims from further physical or psychological harm from the criminal injuries visited upon them, we sometimes fail to press victims to step forward to resist those who would wrong them. That, at any rate, is the important argument advanced by Ashwini Vasanthakumar. Vasanthakumar builds upon other accounts of victim’s duties to argue that victims have a duty to resist their abusers. More powerfully, that duty to resist becomes, on occasion, a duty to assist other victims.
It’s worth putting Vasanthakumar in conversation with another scholar of victimhood—Michelle Dempsey—to elucidate the novelty of her position. Victims’ duties are not simply the mirror image of their rights. Victims may have a right to participate in prosecuting some criminal wrongdoer. But the duty to participate is one shared by all witnesses to injustice, whether victims or mere bystanders. (So argues Dempsey in her book Prosecuting Domestic Violence: A Philosophical Argument.) Vasanthakumar recognizes that one sort of victim duty is a dignity based one: by resisting her abuser, a victim restores her sense of self-worth. This type of resistance does belong to the victim in her role as victim: as Dempsey argues, “[b]y standing up for herself against…violence and abuse, [a victim] realizes a value which no one else can realize: a value grounded in self-respect, courage, selfmastery, refusal to be dominated, etc.” Other members of the community could choose to identify with the victim in accusing the abuser. But they cannot restore the victim’s dignity on her behalf. She must assert herself—even if it is with the community’s help—to realize the dignitarian values that come with the duty to resist. Continue reading "It Gets Worse Before It Gets Better: Victims’ Duties to Resist Injustice "
Oct 3, 2017 Christina S. HoHealth Law
Kimani Paul-Emile, Blackness as Disability, 106 Geo. L. J (forthcoming, 2017).
“This is how a myth becomes reality: how contingent social choices and practices can create the disabled subject.”
What counts as healthy and what counts as disability are not necessarily biologically determined, but rather can be socially constructed. Kimani Paul-Emile’s forthcoming paper, Blackness as Disability, calls our attention to this truth, and does so in a way that shows how our chosen constructions could not have higher stakes for any given individual, or for the fate of our collective life.
Any definition of health, even the most biomedical, depends on a conception of “normal” functioning, as I have written of before. Wendy Parmet puts it thus: “[T]he questions of whether the capacity to stay focused in a classroom or to see well at night are [part of normal functioning depend] . . . on what is expected in a given society of people and their interactions with their environment.” Continue reading "Mapping the Axis of Disability onto the Axis of Race: Can We Reclaim the Possibilities?"
Oct 2, 2017 Daithí Mac SíthighTechnology Law
Mirielle Hildebrandt,
Law as Computation in the Era of Artificial Legal Intelligence. Speaking Law to the Power of Statistics,
U. Toronto L. J. (2017), available at
SSRN.Mireille Hildebrandt’s forthcoming article is a companion piece to her Chorley Lecture of 2015. In the earlier piece, she highlights the relationship between the ‘deep structure of modern law’ and the printing press and written text – building on this a case concerning constitutional democracy and transparency, both in the world of print and the world of electronic data. In this new paper, the emphasis is on law as computation – as compared with law as information in the earlier lecture.
Machine learning is often discussed as an opportunity for legal practice and adjudication, but what will that mean? Hildebrandt highlights how machine learning in the context of law is primarily a simulation of human reasoning found in written legal text; one needs to identify how law is associated with ‘meaningful information’ rather than information simpliciter. Key concerns with applying machine learning in law include the catch-22 of deskilled lawyers becoming unable to verify a machine’s output, and various ways in which such systems can be opaque. Continue reading "The Answer to the Machine is in the Rule of Law?"
Sep 29, 2017 Shubha GhoshInternational & Comparative Law
Legal battlegrounds have moved into the genetic realm. From genetically modified seeds to the altered gene sequence for strawberries, to the patent disputes over isolated DNA sequences and data mining of genetic information, and the associated data generated from germplasm. The Supreme Court rejected a farmer’s claim against Monsanto to the right of reusing genetically modified seeds in 2013. Former employees are in a dispute with UC-Davis over the altered gene sequence for strawberries. Gene editing technologies are subject to patents of contested ownership, but soon may be more readily available. Monsanto loses some of its patent rights related to the BRCA1 gene and actively now seeks patents in data mining of genetic information. Data, genes, and law are in a predictable but perplexing confluence.
Professor Jerome Reichman is at the forefront of scholarship on this confluence with the publication of “Governing Digitally Integrated Genetic Resources, Data, and Literature: Global Intellectual Property Strategies for a Redesigned Microbial Research Commons,” coauthored with Dr. Paul F. Uhlir of the National Academy of Sciences and Professor Tom Dedeurwaerdere. A humble jot cannot do justice to a 650-page tome, but as far as Things We Like Lots, this book is up there. It should be on the shelf of scholars and policymakers dedicated to genetic research and its legal regulation. Continue reading "A Blueprint for the Global Microbial Commons"
Sep 28, 2017 Kevin C. WalshCourts Law
Article III extends “the judicial Power of the United States” to certain “cases” (defined largely by subject matter) and certain “controversies” (defined largely by parties). But why the different words? Does the distinctive terminology track a difference in legal meaning? Questions along this line seem to come up every time I teach about Article III. Finally, I have a concise but fairly comprehensive answer to offer if asked.
My answer now—and my (justified?) confidence in its correctness—comes from James Pfander and Daniel Birk. Their compact piece, Adverse Interests and Article III: A Reply, restates and defends against a powerful scholarly critic—Ann Woolhandler—an account they first advanced two years ago in Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction. Continue reading "Adversity and Non-Contentiousness"
Sep 27, 2017 Charles O'KelleyCorporate Law
Americans’ interest in the impact of corporations on society, always high, reached fever pitch with the Supreme Court decisions in Hobby Lobby and Citizens United, as reflected in the ongoing political and media dialogue about reforms necessary to protect or restore democracy. Believing that the historical assertions informing this debate are largely “claims about the history of corporations in the United States that are at best outdated, if not entirely lacking in historical foundation”, the Tobin Project supported new research on this topic, the results of which are now available in Naomi R. Lamoreaux & William J. Novak, Corporations and American Democracy (2017) (hereinafter “Lamoreaux & Novak”).
Lamoreaux & Novak contains the work of 16 scholars, organized as an introductory essay and ten chapters, which together provide a coherent and enlightening look at the nature of the corporation and corporate law from the founding of America to the present. At the same time, Lamoreaux & Novak also provides a provocative look at the nature of democracy, viewed in the context of the nation’s ongoing struggle over the proper relationship between corporations and government. Whether your interest lies in better understanding the corporation at the turn of the 19th century, in the early stages of the industrial revolution, during the pre-first-World-War reform era, in the early days of the New Deal, or as the corporation later evolved, Lamoreaux & Novak has something for you. For me, the highlight was Chapters 2 and 3, which provide a much needed clarification of the standard account of our understanding of the corporation as it evolved in the nineteenth century. Continue reading "Historicizing Corporations and Democracy"
Sep 26, 2017 Kaiponanea MatsumuraFamily Law
Scholars studying assisted reproductive technologies (ART) have long recognized its power to both challenge and reinscribe norms around reproduction and the family. In-vitro fertilization and surrogacy, for example, reveal that motherhood is not an inherently unitary construct, but is instead comprised of genetic, gestational, and affective ties. Scientific breakthroughs make it likely that, not too far in the future, technicians will be able to derive eggs and sperm from induced pluripotent stem cells, allowing them to create eggs from men and sperm from women. By decoupling sexual intercourse (and potentially biological sex itself) from reproduction, these past and future developments challenge foundational assumptions about the relationship between sex and the family. They have also expanded parenthood to people outside the traditional heterosexual dyad. But at the same time, ART fulfills the specific desire to create a genetic or biological parent-child relationship. It can therefore reinforce the mainstream ideologies of biogeneticism—belief in the importance, and even superiority, of biology and genetics in creating relationships and maintaining one’s identity—and repronormativity—the conceptualization of procreation as a biological imperative rather than a cultural preference.
It is this back edge of ART’s sword that Michael Boucai focuses on in his thoughtful article, Is Assisted Procreation an LGBT Right?. Boucai sheds light on the fact that in recent years, LGBT rights advocates have consistently argued that access to ART is an LGBT rights issue. The basic premise of argument is that LGBT individuals face special forms of infertility, whether hormonal/anatomical, or due to the nature of their intimate relationships. Barriers to ART, such as bans on remunerative surrogacy, therefore disproportionately burden the LGBT population, preventing full LGBT equality in parenthood. This embrace of ART troubles Boucai for several related reasons. First, advocates have largely ignored similar structural barriers to adoption facing members of the LGBT community. Second, arguments deployed in ART-focused advocacy tend to reify biological parenthood’s inordinate prestige by presuming that biological procreation is coextensive with family formation. The narrow focus on a fundamental right to procreate “carr[ies] a constant risk of glorifying biological reproduction at the expense of adoption,” while “invite[ing] judges to ensconce a preference for biological relationships in our family law and constitutional jurisprudence.” (Pp. 1123-1124). Continue reading "Reproducing Queer Kinship"
Sep 25, 2017 Helen NortonConstitutional Law
Suppose the United States elected a president with authoritarian tendencies. Imagine that the president regularly attacked and undermined institutions and individuals that sought to hold his administration accountable for its actions. Assume, for purposes of the hypothetical, that members of the President’s party controlled both the House and the Senate and saw little partisan self-interest in checking the executive branch. Just pretend.
Under those circumstances, where else might we turn for help in ensuring that our government remains accountable to us? In The Special Value of Public Employee Speech, Heidi Kitrosser reminds us that “government employees are crucial safety valves for protecting the people from abuse and incompetence, given their unique access to information and to a range of avenues for transmitting the same.” More specifically, she points out that the everyday heroism of public employees includes
the simple acts of employees doing their jobs conscientiously and in accordance with the norms of their professions. When employees engage in such behavior – for instance, when government auditors honestly and competently investigate and report in a manner consistent with professional auditing standards – they help to maintain consistency between the functions the government purports to perform and those that it actually performs. In this sense, public employees are potential barriers against government deception. They can disrupt government efforts to have it both ways by purporting publicly to provide a service while distorting the nature of that service. When they do this through their speech acts—for example, by reporting the results of budgetary analyses or scientific studies—they engage in speech of substantial First Amendment value. (Pp. 302-303).
In Garcetti v. Ceballos, however, the Supreme Court interpreted the First Amendment to offer no protection for public employees’ truthful speech in a broad range of circumstances—including their truthful reports of governmental lies and other misconduct. Rejecting a First Amendment challenge by a prosecutor disciplined for writing an internal memo that criticized a police affidavit as including serious misrepresentations, the Court held by a 5-4 vote that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In concluding that a government employer should remain free to assert “control over what the employer itself has commissioned or created,” the majority thus created a bright-line rule that treats public employees’ speech delivered pursuant to their official duties as speech that the government may restrain and punish without running afoul of the First Amendment. Continue reading "Checking the Government’s Deception Through Public Employee Speech"
Sep 22, 2017 Eboni NelsonContracts
Although contracts may not immediately come to mind when one considers measures by which to effectuate social change, Professor Patience Crowder effectively advocates for their usage in her recent article Impact Transaction: Lawyering for the Public Good through Collective Impact Agreements. Bringing to bear her considerable experience and knowledge of community economic development and nonprofit organizations, Professor Crowder argues that the utilization of written contracts, particularly collective impact agreements, can be a more effective strategy for achieving comprehensive social change than traditional efforts such as impact litigation, memorandums of understanding, and community benefits agreements. In so doing, she introduces “impact transaction” as a new theory for employing transactional advocacy to achieve large-scale social change.
Professor Crowder’s article begins with a detailed critique of traditional strategies used in social change lawyering and public interest arenas. With respect to impact litigation through which advocates seek to reform agencies and institutions by judicial adjudication, Professor Crowder identifies “narrowly defined scopes of applicability,” high monetary and nonmonetary costs, and the adversarial nature of litigation as disadvantages of this approach for achieving widespread social change. (P. 625.) In light of these and other shortcomings, she advocates for a transactional approach grounded in a collaborative collective agreement process “to address a particular social ill.” Such impact transaction, Professor Crowder argues, “can promote the public good in ways that transcend impact litigation.” (P. 629.) Continue reading "Contracting for the Public Good"
