Jul 2, 2014 Camille Gear RichFamily Law
In her new book, According to Our Hearts, Rhinelander v. Rhinelander and the Law of the Interracial Family, Angela Onwuachi-Willig brilliantly deconstructs and challenges the norm of the monoracial family — the idea that “normal” families are and indeed should be produced by heterosexual single-race couples. As Onwuachi-Willig explains, this norm fundamentally shapes American legal and social relations, including marriage and family formation. The social and legal challenges created by the norm of the monoracial family have long been a theme of Onwuachi-Willig’s work, but According to Our Hearts charts new territory by more clearly demonstrating the connection between racial formation and family formation. As a consequence, the book is destined to find fans among family law scholars, race discrimination scholars, and even lay readers interested in better understanding the role family connections play in triggering race discrimination.
Onwuachi-Willig uses the tragic love story of Alice Jones and Leonard “Kip” Rhinelander as a window into three key themes that she believes continue to inform discussions of the multiracial family today. The first theme, “interraciality,” allows us to explore the role that cross-racial family relationships play in triggering race discrimination. She argues that the study of race discrimination has largely neglected discrimination’s relational component. This relational component posits that discrimination may be triggered by others’ concerns about cross-racial intimate contact or family relations, rather than a single individual’s apparent racial status. The second theme is an examination of the fluid nature of racial identity in multiracial family units. Onwuachi-Willig explores the questions of power that emerge when the individual’s interest in defining her racial identity is juxtaposed against the competing interests of family members, the community, and the state. The book’s third, and perhaps most important theme is the racial hierarchy that exists between various types of interracial families, with black-white unions being the most disfavored. Onwuachi-Willig bravely takes on this hierarchy and deftly illuminates the hierarchy’s material and social consequences. Specifically, she suggests that the special disfavor saved for black-white marriages, particularly those involving black women and white men, ensures that wealth does not easily transfer through marriage and inheritance from white hands into black ones. Continue reading "Desegregating the Heart"
Jul 1, 2014 Steve GoldLexEnvironmental Law
Environmental law strives to improve the relation of Homo sapiens to the ecosystems that support human life and all other life on earth. Ever since Darwin we have known that just as each species affects its environment, the environment pushes back, exerting selective pressure in favor of adaptive variations. Evolution is the long-run product of ecology. At its best, environmental law puts this understanding to work in the service of people and nature. And yet, Professor Nicholas Robinson observes, the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law.
In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant. Continue reading "A Legal Beagle’s Voyage"
Jun 30, 2014 Ted SichelmanIntellectual Property Law
A recent American Bar Association “Corporate Counsel” seminar styled itself as “The Uncertain Arena: Claims for Damages and Injunctive Relief in the Unpredictable World of IP Litigation.” The seminar began by recounting the seemingly surprising, $1 billion-plus damage awards in the patent infringement actions, Carnegie Mellon v. Marvell Technology, Apple v. Samsung, and Monsanto v. DuPont. These blockbuster awards stand in stark contrast to the usual awards of $20 million or less in a typical case.
By and large, in-house counsel have chalked up much of these differences to the luck of the draw. Such a sentiment is all-too-common not only among practitioners, but also among policymakers and academics. No less than the eminent IP scholar Mark Lemley has remarked, “Patent damages are unpredictable because the criteria most commonly used are imprecise and difficult to apply.”
Mazzeo, Hillel, and Zyontz make an impressive contribution to the literature by casting substantial doubt on such views. Specifically, in their recent empirical study of district court patent infringement judgments between 1995 and 2008, they show that patent damages can be explained in a large part by a fairly small number of patent-, litigant-, and court-related factors. Continue reading "Are Patent Damages Uncertain?"
Jun 27, 2014 Nicola BarkerEquality
There appears to be a certain irony in writing in the Equality Section about a book produced by a group called “Against Equality”. But while their name may initially create an image of a reactionary conservative group trying to stem the tide of progressive social change, their agenda is to highlight and critique the inherent conservatism of the apparently liberal “gay rights” claims of equal marriage, equal military service, and equal protection under the law in the form of hate crime statutes. There is a great deal of feminist and queer scholarship making similar points but it has been too easy for gay rights campaigning groups, such as the deeply conservative Human Rights Campaign in the US, to by-pass any real engagement with this scholarship, much of which is inaccessible to the general public due to expensive paywalls. With this anthology, which includes both activist and academic writers, the Against Equality collective seeks to “be sure that our voices of resistance are not erased and written out of history“.
The anthology brings together three books, previously self-published: Against Equality: Queer Critiques of Gay Marriage (2010); Against Equality: Don’t Ask to Fight Their Wars (2011); and Against Equality: Prisons Will Not Protect You (2012). In each volume Conrad brings together a diverse collection of essays drawn from a variety of sources from zines, to blogs, to Facebook posts, and journal articles. Some of these contributions would already be familiar to an academic audience, others may not be, but all are interesting and impassioned refutations of a liberal reformist agenda that fails to properly challenge the underlying economic as well as gender, race, and class power structures. Continue reading "Against Equality"
Jun 25, 2014 Nathan CortezHealth Law
The massive stimulus bill of 2009 included the HITECH Act, by which Congress pledged roughly $30 billion to encourage providers to adopt electronic health records and other health information technologies (HIT). The bill cited a long list of familiar but elusive policy goals—improve health care quality, reduce medical errors, reduce health disparities, control costs, reduce inefficiencies, improve public health, promote competition, increase consumer choice. If the health policy literature had a fantasy genre, the HITECH Act solving our health system’s problems through a new nationwide HIT infrastructure would feature prominently.
But a few years later, as Nicolas Terry observes, and “HIT still appears to be a large rock that only a few dedicated converts are pushing up a steep and expensive hill.” Why is that? Why wouldn’t our lumbering, dysfunctional, and fantastically expensive health care system be transformed by information technology like so many other industries? Doesn’t our health care system practically beg for the efficiencies of information technology? Terry’s article, Information Technology’s Failure to Disrupt Health Care, tries to answer these questions. Continue reading "Can Information Technology Save Health Care?"
Jun 24, 2014 Mary FanCriminal Law
If you seek inspiration in these times of debilitating negativity toward the law and lawyers, read Gilbert King’s Devil in the Grove. A student who represents the best in the law’s future gave me the book. The gift was far greater than the bound pages or the pleasure of an engrossing weekend. It was a renewal of awe at what the law and lawyers can do to rescue people and change hardened minds and hearts in atmospheres of fear, loathing, and violence.
After Devil in the Grove has inspired you with its excellent history of our recent past, I recommend reading works by two outstanding junior scholars, Allegra M. McLeod and Daniel I. Morales, who are imagining our future. What I love about all three works are the accounts of how law can save as well as destroy and the lessons about how to change mindsets, not just the laws on the books. Continue reading "Violence, Yearning, and Hope"
Jun 23, 2014 Elizabeth ThornburgCourts Law
Gillian K. Hadfield & Dan Ryan,
Democracy, Courts and the Information Order, 54
European J. of Sociology 67 (2013), available at
SSRN.
Discovery has a bad name, and the reason for that is something of a mystery. It certainly isn’t careful empirical evidence. Decades of research have consistently demonstrated that discovery is used appropriately and that in the vast majority of cases its costs are proportionate to the stakes in the lawsuit. Most recently, the Federal Judicial Center’s 2009 study of thousands of closed cases (chosen to maximize the likelihood of discovery) found that at the median, the reported costs of discovery, including attorney’s fees, was just 1.6% of stakes of the case for plaintiffs and only 3.3% for defendants. Discovery’s benefits are harder to quantify, but mutual access to relevant information surely leads to case outcomes that more accurately reflect legal norms. Yet the Advisory Committee on the Civil Rules is once again proposing rule amendments that would limit discovery.
The public discovery debate focuses almost entirely on the instrumental value of discovery to litigants. There are, however, other significant reasons for using the power of courts to compel information exchange. Judicial process as process is crucial to the legitimacy of the legal system because citizens must perceive it to be trustworthy and fair. Hadfield and Ryan’s Democracy, Courts, and the Information Order articulates how the discovery process is fundamental to American democracy: civil courts serve as a place where litigants are formally treated as equals in their ability to demand the sharing of relevant information, even from entities with far more political or economic power in society. The experience of participating in the discovery process is thus part of the “phenomenology of democracy”– the lived experience of being treated as an equal among equals. (P. 88-89.) Continue reading "Discovery and Democracy"
Jun 20, 2014 Cristie FordCorporate Law
The value of interdisciplinary work is on display in this article by two Dutch policy scholars: the subject matter is accounting rules for financial instruments, but it spans public policy and regulation in a way that is also of interest to scholars of law and regulation. (Full disclosure: I am an editor of Regulation & Governance, though I was not involved in this article’s editorial process.)
Mügge and Stellinga discuss the choice between the two main accounting standards (fair value accounting, or FVA, and historical cost accounting, or HCA), across three policy-making moments between 1997 and 2013, in terms of two dominant explanatory theories for policy change—neither of which turns out to be convincing. What emerges is a sense of how accounting regulators, specifically the EU’s Accounting and Regulatory Committee (ARC), put in place unstable sets of accounting standards for financial instruments that were neither exactly what banks wanted, nor what the International Accounting Standards Board (IASB) as standard-setter wanted. Nor is this simply a case of a regulator ‘splitting the baby’ between competing interest groups. Continue reading "Drama and Consequence in Accounting Standards Choice (Seriously)"
Jun 18, 2014 Mark KendeConstitutional Law
Deborah N. Pearlstein,
Law at the End of War, 99
Minn. L. Rev. — (forthcoming 2014), available at
SSRN.
The United States has formally fought a “war on terror” since 9/11, but a key question is whether it will ever end. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), for example, the U.S. Supreme Court essentially pronounced that enemy combatants in Guantanamo could be held for the “duration of hostilities.” It is not clear, however, when that will occur, especially since the war is principally against a non-state group, Al Qaeda, bent on terrorizing the U.S. for as long as the group survives. As Professor Deborah Pearlstein shows in her important new article, Law at the End of War, U.S. Supreme Court decisions contain language that has been interpreted to mean that when a war ends is a political question. Marshaling U.S. Supreme Court precedents, international law, the related law of armed conflict, and public policy interests, Pearlstein argues persuasively to the contrary.
One of Pearlstein’s central arguments is that the judiciary has long been willing to decide when a war has ceased. These determinations have major legal consequences, since war triggers the applicability of important statutes and conventions. For example, she counters conventional views regarding The Prize Cases, 67 U.S. 635 (1863), where the question was whether President Lincoln had the “right” to impose a naval blockade on southern ports after the Confederacy attacked Fort Sumter in 1861. While the Court said it “must be governed by the decisions and acts of the political department of the Government” on the question of “what degree of force the crisis demands,” she convincingly asserts that this simply means Lincoln had the power to decide to shoot back. The Court did not exclude itself from deciding whether war existed in light of the President’s actions. Indeed, the Court rejected executive branch arguments that it must abstain from such assessments, as a matter of international law, unless Congress formally declared war. Continue reading "The Battle Between Law and War"
Jun 17, 2014 Peter ShaneAdministrative Law
Jason Marisam,
The President’s Agency Selection Powers, 65
Admin. L. Rev. 821 (2013), available at
SSRN.
Jason Marisam’s recent article on what he calls presidential “agency selection powers,” The President’s Agency Selection Powers, 65 Admin. L. Rev. 821 (2013), provides new insight into a president’s capacity to shape regulatory policy even without relying on a so-called “unitary executive” reading of the Constitution.
Should a history of arcane legal debates ever be written, perhaps authors will mark the so-called “unitary executive” debate as one of the strangest. Technically, the controversy centers on whether the President is constitutionally entitled to dictate how all other executive branch officials exercise whatever discretionary functions are vested in them by statute. I have argued that the Constitution embodies no such principle. On the other hand, scholars as otherwise unalike as Steve Calabresi and Cass Sunstein have urged—on originalist and nonoriginalist grounds, respectively—to the contrary.
This sounds like a big deal, and it is—in principle. But the main significance of the doctrine is primarily its potential impact on the ethos of executive power. If the small-“u” unitarians are right, then executive officers are likely to attend as diligently to the president’s policy preferences as they do the laws enacted by Congress. In contrast, my negative response to the question is intended as an institutionally potent reminder that much of what the executive is allowed to do is entirely at Congress’s sufferance. Administrative power under this view ought to be exercised in a conscientious, well-reasoned way, as attentive to law as to politics. Any Administration’s view of the “unitary executive” theory is likely to be an important mood-setting device for governance, pointing in one direction or the other. Continue reading "Unifying the Not-So-Unitary Executive"
