Feb 19, 2025 Howard M. WassermanCourts Law
Paul Schiff Berman,
The Future of Jurisdiction, 102
Wash. U. L. Rev. __ (forthcoming, 2025), available at
SSRN (Mar. 22, 2024).
Personal jurisdiction sits in a state of flux. A decade-and-a-half of renewed Supreme Court engagement—with another case on the way this Term—has changed some things, failed to clarify longstanding uncertainty, and sowed new confusion. The originalist turn has reached personal jurisdiction, with arguments for returning to our jurisdictional origins.
Paul Schiff Berman predicts The Future of Jurisdiction. He places the current era in an historic evolution of American society and jurisdictional doctrine and revises jurisdictional rules to better fit the needs and reality of the 21st century. He offers four key insights a about personal jurisdiction; those insights lay the foundation for his new approach. Continue reading "A New Approach to Personal Jurisdiction"
Feb 18, 2025 Andrea BoyackProperty
Ezra Rosser,
Progress and the Taking of Indigenous Land, 85
Ohio St. L.J. __ (forthcoming, 2024), available at
BePress (Jan. 1, 2024).
Property is both “freedom” and “theft.” Takings jurisprudence in the United States evokes both these paradigms, sometimes justifying and sometimes condemning the exercise of eminent domain. For example, in the now-infamous 2005 case of Kelo v. City of New London, a divided Supreme Court barely upheld a government taking of a home to promote economic development. Twenty years prior, a unanimous Supreme Court easily upheld a government taking of Hawai’ian land for economic purposes in Hawaii Housing Authority v. Midkiff. Interestingly, although widespread public outrage in response to the taking of Suzette Kelo’s “little pink house” has raged since 2005, the taking upheld in Midkiff continues to be shrugged off as economically justified. Why the difference?
Professor Ezra Rosser’s forthcoming article, Progress and the Taking of Indigenous Land, reframes the United States Supreme Court 1984 holding in Midkiff to better explore the property tensions in takings law by placing the case in its broader context. Although the Courts opinion speaks in terms of market competition, the taking at issue pertained to land (‘āina) held by and for the benefit of native Hawai’ians. Rosser’s reconsideration of Midkiff importantly re-situates the case—and takings law in general—within the long and troubling history of indigenous property dispossession in the United States. Continue reading "‘Āina Lost: Modern Justifications for Native Property Theft"
Feb 17, 2025 Betsy FisherLexImmigration
When is a citizen stateless? This is not a children’s joke with a clever punchline; living with an entitlement to but without recognition as a citizen is the lived experience of untold numbers of people globally. It is also a matter of scholarly debate: are such individuals, entitled to nationality but unrecognized by their state, stateless? Or are they merely de facto stateless? Some have argued that such individuals are stateless, and that the term de facto statelessness is unhelpful. These scholars can point to the international definition of statelessness as someone ‘not considered as a national by any State under the operation of its law.’ The argument goes, if someone is entitled to nationality, but not considered as a national, they are stateless, full stop. Others point to the 1954 Convention’s failure to protect de facto stateless people as proof of its inadequacy to protect people without state protection.
Ghost Citizens joins this conversation, noting Prof. Jamie Chai Yun Liew’s view ‘that the legal fact of being conferred citizenship is important. As such, persons should be considered stateless until they are legally recognized as a citizen.’ But her monograph pushes further, arguing that we must also explore why the state determines who is a citizen to start with. Here, she joins the theoretical contributions arguing that genuine links to a state should establish a stateless person’s claim to citizenship. Continue reading "Stateless Citizens and State Authority"
Feb 14, 2025 Sam F. HalabiInternational & Comparative Law
In the wake of President Trump’s shocking announcement that he favors the U.S. “take over the Gaza Strip and…own it” and hopes to resettle the Gazan Palestinian population elsewhere, not only the global diplomatic community but also scholars of the region have been given a renewed focus on how the topic of Gaza and its people will be understood, analyzed, and treated. It is fortunate then that Ilan Pappe, long one of the most important scholars of the Israel/Palestine conflict, has provided an essential resource on the expanding discipline of Palestine Studies. Writing in the UCLA Law Review—the campus was one of the most important venues for activism related to Gaza over the course of 2023-24—Pappe not only traces the origin of Palestine Studies as it emerged through academic journals like the Journal of Palestine Studies and the Jerusalem Quarterly, but also how programs and academic chairs are now proliferating in Canada, the UK, the US and elsewhere.
Pappe’s article, Palestine Studies: An Activist Academic Field, is one I like a lot and I hope others seeking greater understanding of Palestine and Palestinian people do as well. Pappe’s story itself is fascinating—he was born in Haifa, educated at the Hebrew University, and served in the IDF before attending the University of Oxford where, like other prominent Middle Eastern historians who studied alongside Albert Hourani, he developed an approach to research that emphasized a comprehensive approach to primary and secondary sources. He eventually became a so-called “New Historian”—one of a number of Israeli academics who, working from records then newly-released from Israel’s state archives, challenged conventional narratives about the origin of the state and have argued that Israel was established through violent and orchestrated mass expulsion of Palestinians. Pappe himself writes from Exeter in a kind of self-exile, departing from the University of Haifa after advocating the boycott of Israeli cultural institutions. Continue reading "The Expanding Discipline of Palestine Studies"
Feb 13, 2025 André den ExterHealth Law
Commissions Régionales De Contrôle De L’euthanasie,
Jaarverslag (2023).
The Regional Euthanasia Review Committees (RERCs) in the Netherlands are required by statute to report annually on euthanasia and physician-assisted suicide (PAS) procedures carried out in the Netherlands. The general conclusion of the latest periodic evaluation was that euthanasia and PAS procedures are generally carried out with great care. It also concluded that the degree of willingness among physicians to report euthanasia remains high. Apart from these general observations, the report provides valuable information about euthanasia and PAS practice in the Netherlands, as well as how RTEs fulfill their statutory task of reviewing notified cases.
Understanding the Dutch practice requires some further explanation of the legal setting, i.e. Termination of Life on Request and Assisted Suicide Act (‘the Act’). Though euthanasia and PAS remain criminal offenses, physicians are released from liability if the statutory due care criteria are met and the act is reported to an RERC. Requests for euthanasia or PAS typically come from patients experiencing unbearable suffering with no prospect of improvement, who see these options as the only escape. All requests for euthanasia or PAS must be made earnestly and with full conviction. However, patients do not have an absolute right to euthanasia, and doctors have no duty to accept the patient’s request to perform it. Continue reading "Euthanasia Review Report: What is Happening in The Netherlands?"
Feb 12, 2025 Alma DiamondJurisprudence
Thomas Adams,
Criteria of Validity, __
Mod. L. Rev. __ (forthcoming 2025), available at
SSRN (Oct. 14, 2024).
My father used to announce weekly household chore assignments on Sundays. The five of us agreed about the relative burdens: tidying the living room was a prized assignment, and washing the dishes bordered on punishment. Our family had an unarticulated sense of propriety in chore assignments, and challenges were common. In those Sunday debates, we were evaluating chore assignments in light of family norms defining the proper use of the assignment power: that it distributed burdens fairly, for example. None of us were enterprising enough to ever question the existence of a particular chore assignment, but if we had, the matter would be resolved by the family norms defining the existence conditions for chore assignments: that my father had uttered it on a Sunday, and so on. This latter matter would be different from the first: the question of how the chore assignment power is constituted is distinct from the question of how it is properly exercised. If we ever lost sight of this distinction, we would end up confusing the norms that govern chore assignments with the norms that constitute the assignment power. We would find ourselves making exactly the kind of jurisprudential mistake Thomas Adams adeptly identifies and resolves in his new article, Criteria of Validity.
The interminable debate between inclusive and exclusive positivism is supposedly about the possibility of moral principles forming part of the conditions on the validity of legal rules. Adams incisively points us to the difference between formal and substantive conditions. He argues that while exclusive positivists correctly identify the formal nature of the conditions on validity, inclusive positivists correctly identify the moral character of many of the substantive conditions on the lawfulness of existing enactments. Both sides ignore the crucial distinction between the conditions on a legal rule’s existence and conditions on its lawfulness, leading each to its own mistakes. Adams helpfully defuses much of the debate. In so doing, he also highlights a regrettably neglected distinction between two senses of “fundamentality” in our constitutional discourse: the formal enumeration of lawmaking powers is not the same thing as the substantive regulation of those powers. Continue reading "Clarifying Legal Validity"
Feb 11, 2025 Sarah FackrellIntellectual Property Law
Imagine for a moment that you are a law student. You are interested in intellectual property law but you don’t qualify to sit for the patent bar. You know that means you can’t do patent prosecution work. You’re not too worried about that because you’re more interested in trademark or copyright work anyway. But still you wonder: How can you concisely convey your professional interests to your professors, peers, and potential employers? One common answer is to use the phrase “soft IP.”
As Amanda Levendowski points out, “soft IP” is frequently used to distinguish trademark and copyright law from patent law (despite longstanding criticism from Eric Goldman). But, she argues, this phrase “reflects implicit biases against copyright and trademark doctrine and practitioners.” (P. 102.) Levendowski demonstrates that the phrase “offers no conceptual, doctrinal, historical, operational, definitional, or practical clarity.” (P. 109.) So, she asks: “What’s so soft about ‘soft IP’?” (P. 102.) One answer, she suggests, is that the fields of copyright and trademark law tend to be associated with women: Continue reading "Patent Law: What, Like it’s Hard?"
Feb 10, 2025 Josh Gupta-KaganFamily Law
When the Supreme Court, in Brackeen v. Haaland, upheld the Indian Child Welfare Act (ICWA)—federal legislation making it harder for child family regulation (a.k.a. child protection) agencies to separate Indigenous children from their parents—it centered Congress’s effort to remedy a long history of unwarranted separations of Indigenous families. That is how Justice Barrett began her majority opinion, and Justice Gorsuch significantly expanded on the point. Barrett and Gorsuch’s historical narrative focuses on past harms done and Congress’s remedy—ICWA. Even in Gorsuch’s more detailed telling, the role of Indigenous political and legal activism is at most implied. Laura Briggs offers a necessary and important addendum, making explicit that implied history. The complete story, which Briggs begins to tell, leaves a different impression, both about the future of ICWA and the efforts to transform the family regulation system more broadly.
Justice Gorsuch’s Brackeen concurrence recites the ugly history of state family regulation systems’ and private individuals’ “mass removal of Indian children from their families” in the mid-20th century, a practice which built on “a much older policy of removing Indian children from their families,” and which collectively “had devastating effects on children and parents alike.” Thirty-five pages of painfully detailed history of the victimization of Indigenous families follows, leading to the legal conclusion: “ICWA must stand” as a perfectly lawful action to preserve tribal sovereignty. Gorsuch concludes that federal regulation of affairs with Indigenous nations remains appropriate – even in family law, an area generally left to states – because “state intrusions on tribal authority” had happened for far too long and with devastating impact on Indigenous families and communities. As important as Justice Gorsuch’s concurrence is, Briggs explains how there is more to the story. Continue reading "Completing ICWA’s History"
Feb 7, 2025 Doron DorfmanEquality
Healthcare settings have long been sites where minoritized patients have needed to fight to receive adequate quality of care. The recent debates about physicians not wearing masks in hospitals and clinics to protect immunocompromised and vulnerable patients is only the latest example of systemic failures allowing such health-related injustices to appear.
For decades, legal scholars have been discussing the promise and shortcomings of tort law as an avenue to bring about social change and promote equality. In her important and novel article Biased but Reasonable, Maytal Gilboa discusses how one avenue to address health-related injustices—using tort law, specifically medical malpractice (professional negligence)—fails Black patients. Continue reading "How Tort Law Thwarts the Fight Against Biased Healthcare"
Feb 6, 2025 Ari WaldmanTechnology Law
Over a year before the Supreme Court’s conservative supermajority overturned Roe v. Wade, the Texas legislature passed SB 8, which banned all abortions after six weeks. At the time, fetal heartbeat laws like SB 8 were invalid because Roe and its progeny prohibited the use of state power to prohibit access to abortion services pre-viability. So Republicans in the Texas legislature, supported by the work of anti-abortion movement lawyers, came up with a workaround. SB 8 deputized private citizens to surveil on the state’s behalf and authorized them to bring private civil lawsuits against anyone who provided or facilitated an abortion after six weeks. SB 8 is a perfect and heinous example of what Sarah Brayne, Sarah Lageson, and Karen Levy call “surveillance deputies.”
In Surveillance Deputies: When Ordinary People Surveil for the State, Brayne, Lageson, and Levy define surveillance deputies as “ordinary people us[ing] their labor and economic resources to engage in surveillance activities on behalf of the state.” From one perspective, surveillance deputies are paradigmatic of the engaged citizen: “If you see something, say something” is not, in this understanding, a McCarthyite or totalitarian slogan encouraging tattling and ratting on neighbors. Instead, it’s a message about what constitutes good citizenship. Good citizens speak up and keep everyone safe. From another perspective, however, surveillance deputies are decidedly sinister. The connection between speaking up and keeping everyone safe implies that those listening to surveillance deputies have the best interests of citizens in mind. That is far from a sure thing. Surveillance deputies expand the power of the state and sometimes do so for the mere sociopathic reward of seeing someone else harmed. Continue reading "State Surveillance, But From the Ground Up"
