Aug 10, 2016 Eli WaldLegal Profession
A lawyer, states the American Bar Association Model Rules of Professional Conduct, is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Preamble ¶ 1 (2016). Yet in contrast with the many rules that define the role of lawyers as representatives of clients and the handful of rules that deal with lawyers as officers of the legal system, the rules have little to say about the role of lawyers as public citizens. Only one comment is directly on point, explaining that “[a]s a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” Id. ¶ 6. What the special responsibility lawyers have for the quality of justice is and how they are to go about improving the administration of justice are questions mostly left unaddressed by the rules.
Scholars of the legal profession have long complained about this significant omission, and their call for infusing the role of lawyers as public citizens with actual content, has been answered by a public intellectual, Ta-Nehisi Coates, in his book Between the World and Me, which any lawyer interested in improving the quality of justice in the United States must read. That Mr. Coates should provide a foundation for a much needed discussion about the role of lawyers as public citizens is surprising, both because the author is not a lawyer, and because the book does not mention lawyers even once. Nonetheless, Between the World and Me is nothing short of a compelling call for arms, a wake-up call for members of the legal profession. Continue reading "Where Are the Lawyers?"
Aug 9, 2016 Bethany BergerLexNative Peoples Law
In the concentration camps of the Holocaust, a pink triangle marked gay men’s uniforms to indicate why they had been singled out for imprisonment and death. Beginning in the 1970s, LGBT activists reclaimed the pink triangle, transforming it into a symbol of pride and a demand for respect. Like the Nazi use of the pink triangle, the US Supreme Court’s 1903 decision in Lone Wolf v. Hitchcock represents some of the worst oppression of tribal nations in the United States. Rejecting a challenge to involuntary allotment of tribal lands, Lone Wolf declared that the United States had “plenary power” over Indian tribes, and this power was a “political one, not subject to be controlled by the judicial department of the government.” The case was immediately decried as the Dred Scott for Indians, but unlike Dred Scott, much of Lone Wolf remains good law.
In her provocative new paper, Plenary Power, Political Questions, and Sovereignty in Indian Tribes, Michalyn Steele argues for a partial reclaiming of the plenary power and political question doctrines announced in Lone Wolf and other cases. As Steele notes, the doctrines have been “roundly, and rightly” criticized as leaving tribes “vulnerable to unchecked political whim.” In the limited form Steele proposes, however, the doctrines may be a useful check to what she calls the “heads I win, tails you lose” bind tribes face in the courts today. Continue reading "Reclaiming Lone Wolf?"
Aug 8, 2016 Serena MayeriLegal History
Katherine Turk’s elegantly written, deftly argued study of Title VII’s first half-century spotlights working-class women’s distinctive legal activism, deepening our understanding of the promise and limitations of American antidiscrimination law in an era of increasing income and wealth inequality. Using fine-grained case studies as emblematic of larger themes, Turk takes us deep into ground-level campaigns and controversies in a diverse array of workplaces, organizations, and government agencies, from the New York Times and the National Organization for Women (NOW) to municipal employees’ unions to hospitals and hotels where women and men struggled for better and fairer conditions for all workers. Working women built cross-class and interracial coalitions with labor and feminist organizations to fight for pay equity, comparable worth, higher safety standards and workplace protections, paid family and medical leave, occupational mobility, and accommodation of family responsibilities.
Equality on Trial documents how the expansive visions of workplace justice that animated workers and their advocates collided with formidable obstacles: class divisions among women, gender divides among workers, declines in union density and power, conservative counter-mobilizations against civil rights enforcement, and a neoliberal politics that elevated individual opportunity over structural reform. The result is a class-stratified world of gender and work, in which privileged women enjoy the limited benefits of formal equal treatment while their working-class counterparts languish in low-wage, contingent jobs where sex equality means the right to be treated as poorly as men. Elite women gained access to white-collar male-dominated occupations, but failed to unsettle the expectation that the ideal worker outsource all reproductive labor to unpaid spouses or underpaid domestic help. Working-class women, Turk contends, benefited little from the paltry concessions feminists won in the late twentieth century: stingy, unpaid family leave for which many low-income women are ineligible and few can afford to take; desexualized but hardly de-gendered working environments; equal pay for equal (but not comparable) work; freedom from pregnancy discrimination without an entitlement to accommodation; the right to work under the same dangerous and soul-crushing conditions as men. Continue reading "The Lost Promise of Title VII"
Aug 5, 2016 Barbara LevenbookJurisprudence
William Baude & Stephen E. Sachs,
The Law of Interpretation, 130
Harv. L. Rev. (forthcoming 2017), available at
SSRN.
“Interpretation,” as used by Baude and Sachs, names the process that starts with legal texts and ends with their contribution to antecedent law. This is not the same activity as uncovering full linguistic meaning (though this may be necessary to determine legal contribution), nor is it extending or repairing antecedent law.
This article presents Baude and Sachs’s case that system-specific law governs interpretation of legal texts. In short, the positive law in particular legal systems generates interpretive principles that shape the legal content established by statutes (and constitutional provisions). The authors’ view rejects any theory of law or legal interpretation that insists, on conceptual grounds, that the materials for interpretation are common to legal systems or that mandates a standard of interpretation for parts of our system (e.g., the Constitution) based on conceptual claims alone (such as “the purpose” of a written constitution). Some of the examples Baude and Sachs offer of system-relative legal standards that I find plausible as governing interpretation are: the Dictionary Act, the “repeal-revival rule” of 1 U.S.C. section 108 (according to which new repeals don’t automatically revive old statutes), the general savings statute (according to which repeal does not erase liabilities arising under the old statute), and some traditional canons of interpretation such as the “Mens Rea Canon” and the presumption against retroactivity. Continue reading "Taking Interpretive Statutes Seriously"
Aug 4, 2016 David FagundesIntellectual Property Law
Patrick Goold,
Unbundling the ‘Tort’ of Copyright Infringement, 102
Va. L. Rev. (forthcoming 2016), available at
SSRN.
What kind of legal wrong is copyright infringement? Scholars tend to unreflectively regard copyright infringement as a tort. In his elegant and insightful recent article, Unbundling the ‘Tort’ of Copyright Infringement, Patrick Goold complicates this received wisdom by applying rigorous conceptual analysis to a body of law—copyright—that is rarely analyzed in those terms. In so doing, Goold invites us to see copyright law in a new and more nuanced light, and also seeks to show that courts’ purportedly scattered approach to infringement may not be so incoherent after all.
The central premise of Goold’s article is simple: the orthodox view of copyright infringement as a single tort mischaracterizes how courts actually resolve infringement cases. Calling on Prosser’s classic disaggregation of privacy into a “gallery of torts,” Goold identifies five different “copy-torts”: consumer copying, competitor copying, expressive privacy invasion, artistic reputation injury, and breach of creative control. Each of these different copy-torts, Goold argues, reflects the distinct interests that courts seek to vindicate using copyright law. Continue reading "The Plural Tort Structure of Copyright Law"
Aug 3, 2016 Christina S. HoHealth Law
Lisa Forman,
Can Minimum Core Obligations Survive a Reasonableness Standard of Review Under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights?, 47
Ottawa L. Rev. (forthcoming), available at
SSRN.
The U.S. legal discourse on health rights is impoverished, neglected, and underinformed. The right to health is reflexively dismissed as one of the affirmative rights that our tradition of negative liberties renders irrelevant. And there (I exaggerate only slightly) conversation stops. But when we inspect this conversation-stopper, it is based on overgeneralization. The truth is more fact-dependent. Lisa Forman, in Can Minimum Core Obligations Survive a Reasonableness Standard of Review Under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights? (forthcoming in the Ottawa Law Review), gives us a window into the granular.
Managing to adjudicate an “unwieldy” health right
Although the right to health, as a right of the economic, social, and cultural variety, is often thought to be a right to some affirmative state provision rather than a negative liberty from state action, this assumption is belied by laws in the U.S. that can function as negative rights to health. For instance, some laws protect private use of plant varieties relating to essential foodstuffs against enforcement of government-granted monopolies, or provide procedural rights for a health impact assessment prior to government action that harms health. Those examples reveal statutes or regulations that restrict governmental power to infringe on individuals’ right to health. Nevertheless, once labeled as “positive rights,” health rights frequently assume a reputation as unmanageable. Forman voices this conventional wisdom succinctly: the realization of the right to health, under this skeptical view, “requir[es] extensive state action and resources, so that judicial enforcement would reallocate budgets and alter social policy, breaching the appropriate democratic separation of powers and wreck[ing] budgets.” And yet, jurisdictions outside the U.S. manage to adjudicate such rights day in and day out, handling them just as the legal system treats all kinds of other unmanageable questions, by generating thick, fact-rich jurisprudence. Continue reading "An Internationally Justiciable Right"
Aug 2, 2016 Camille Gear RichFamily Law
Last year, Obergefell v. Hodges seized center stage as many family law scholars began evaluating the implications of the Supreme Court’s decision recognizing gay Americans’ constitutional right to marry. Other scholars, however, remained more interested in exploring the inverse phenomenon: the decreasing relevance of marriage and married life for many Americans. Specifically, research shows that many poor and working class Americans no longer find marriage to be a precondition for romantic relationships or parenthood. This group of Americans has formed what Huntington calls “postmarital families.” In her wonderful article, Postmarital Family Law: A Legal Structure for Nonmarital Families, Huntington explores the legal implications of this dramatic cultural shift.
Huntington begins by rendering visible the bifurcated world we currently inhabit now that marriage is no longer the institution that constitutively defines all families. One group of Americans, a relatively wealthier group, lives in marital families; the other, composed of less financially secure individuals, has formed nonmarital, or “postmarital,” family units. Yet family law, she argues, still treats all families as though they are marital families. As a consequence, “postmarital” families are forced to navigate ossified legal presumptions, ill-fitting rules, and institutional structures designed around marriage. Huntington’s discussion successfully renders visible postmarital families’ specific, unique dynamics and further reveals the way existing family law aggravates these families’ special vulnerabilities. She also shows how family law—its legal norms and institutions—must evolve to address postmarital families’ unique problems. Continue reading "Adventures in Co-Parenting: Charting a Course for Postmarital Families"
Aug 1, 2016 Nick J. SciulloEquality
There are many reasons to like Jayne Huckerby’s most recent article, and many different ways to incorporate this work into your reading and classes. The article has appeal to feminist, international law, national security, and peace studies. There are several things this article does that I like lots. At its most basic level, it’s a helpful reminder of where feminisms stand on or in relation to the complex terrorism and counter-terrorism terrain. Huckerby takes an exhaustive review of the literature, in the best sense of the phrase, presenting scholars with copious notes detailing discussions in law reviews, peer-reviewed journals of allied fields, books, U.N. and U.S. government reports, and the popular press. Anyone eager to learn more about gender, feminisms, and international law, or to write a syllabus, would do well to comb her notes.
Huckerby’s writing is crisp, giving readers gems of legal thought like:
[A] post-9/11 account of women’s victimhood also tends to focus unduly on women’s experiences at the hands of non-State actors (terrorists), rather than to illuminate ways in which State counter-terrorism policies have also undermined women’s rights or to address a more complicated picture of victimhood whereby women often feel squeezed between terror and anti-terror.
(P. 557) (citations omitted). Continue reading "Squeezedness and Feminisms in the Age of Counterterrorism"
Jul 29, 2016 Daithí Mac SíthighTechnology Law
Lachlan Urquhart & Tom Rodden,
A Legal Turn in Human Computer Interaction? Towards ‘Regulation by Design’ for the Internet of Things (2016), available at
SSRN.
Ten years have passed since the second edition of Lawrence Lessig’s Code; John Perry Barlow’s A Declaration of the Independence of Cyberspace, in turn, came ten years before that. In their working paper A Legal Turn in Human Computer Interaction?, doctoral researcher Lachlan Urquhart (with a background in law) and computing professor Tom Rodden, both based at the University of Nottingham in England, make an avowedly post-Lessig case for greater engagement between the cyberlaw concept of regulation and the field of human-computer interaction (HCI).
Their work is prompted by the growing interest in “privacy by design” (PbD). First the subject of discussion and recommendation, it has taken on a more solid form in recent years, through legislative changes such as the EU’s new General Data Protection Regulation. An area where PbD seems particularly promising is the second prompt for this working paper, namely the so-called “Internet of Things” and the emergence of various technologies, often for use in a domestic setting, which prompt a reconsideration of the relationship between privacy and technological developments. Continue reading "My Favourite Things: The Promise of Regulation by Design"
Jul 28, 2016 William BaudeConstitutional Law
- Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Am. Legal Studies 95 (2016), available at SSRN
- Seth Barrett Tillman, Originalism & the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014), available at SSRN
Everybody should read the Constitution. But some of us find more in its text than others. In a series of underappreciated pieces, Professor Seth Barrett Tillman may have found an intricate and startlingly coherent set of principles about government structure — as well as a reminder to take the Constitution’s words more seriously than we do.
Much of the Constitution (especially the original 1789 document) deals with structure. It creates government institutions, defines their powers, and regulates their membership. In the course of doing so, many of the Constitution’s provisions deal with individuals who hold government office – officers. Indeed, if you start ticking off references to “office” and “officers” as you read through the Constitution, you may notice two things: There are a lot of them, and many of them are phrased differently. Continue reading "Constitutional Officers: A Very Close Reading"
