Aug 5, 2013 Allison TirresLegal History
Where does federal plenary power over immigration come from? For a long time now, scholars have pinpointed the definitive starting point in the 1889 Supreme Court case of Chae Chan Ping v. U.S. (aka The Chinese Exclusion Case), which announced that immigration control was “an incident of sovereignty” and thus a matter for Congressional—not state or judicial—power. In an excellent new article, historian Hidetaka Hirota challenges this basic assumption. He argues convincingly that federal plenary power arose not only from the Court’s reading of international and constitutional law, but also from a long history of state practices of migrant policing and control. The federal government took political, administrative, and procedural cues from the state immigration regimes that predated Chinese Exclusion, particularly those in the influential states of New York and Massachusetts.
Hirota is not the first to look at state immigration power. As he acknowledges, Gerald Neuman and Kunal Parker have done foundational work in this area, exploring the ways that state regulation of the poor and of fugitive slaves served as precursors to federal immigration control. Hirota’s focus is on the ways that states dealt with foreigners arriving from Europe in ports along the Atlantic coast. The border that mattered in this period was a coastal one, not a land border. With no modern visa system in place, state officials had no control over who would seek to land on their shores. Hirota recounts how the Atlantic seaboard states developed a comprehensive approach to preventing or limiting the migration of the poor, as well as removing them after entry if necessary. State officials created boards of immigration to oversee efforts and devised systems of bonds and taxes. Ship captains who brought passengers who were “likely to become permanently a public charge” had to supply bonds in the event that a passenger required poor relief. If the ship companies did not provide the bonds for those passengers, state officials would prohibit the passengers in question from landing. Ship companies would have to return the passengers to Europe on their own dime. States also charged a head tax (in lieu of bonds or in combination with them), which was a fee on all healthy passengers. This was used to offset the cost of receiving destitute passengers. Of course, these taxes would give rise to the Passenger Cases in 1849 and to Henderson v. New York in 1876. In combination, these cases greatly limited the states’ power to tax passengers, based on the Supreme Court’s interpretation of the Commerce Clause. Continue reading "The State Origins of Federal Plenary Power"
Aug 2, 2013 David FagundesIntellectual Property Law
Deepa Varadarajan,
Improvement Doctrines, 41
Geo. Mason L. Rev. (forthcoming 2014), available at
SSRN.
Scholars often debate whether intellectual property really is property at all. This is far more than just a descriptive inquiry. Asking how law regulates tangible and intangible goods differently can deliver valuable insights about the optimal governance of real property and chattels, patents and copyrights. Deepa Varadarajan’s engaging piece, Improvement Doctrines, forthcoming in the George Mason Law Review, represents an important contribution to the growing literature about what property and IP can help us learn about one another. Improvement Doctrines focuses on the fascinating but underappreciated body of doctrines in physical property law that favor—and sometimes entirely excuse—trespass and conversion that is done in good faith and that adds significant value to the res. Professor Varadarajan’s article then uses these improvement doctrines as a lens though which to analyze intellectual property’s relatively anemic attempts to take account of improving but unauthorized uses of patented inventions and copyrighted works of authorship. In so doing, Improvement Doctrines identifies and illuminates a series of fascinating problems that span both physical and intellectual property law.
Professor Varadarajan’s article begins with physical property’s improvement doctrines and moves into an investigation of unauthorized improvement in intellectual property law. In so doing, though, it neither assumes that tangible and intangible property law must mechanically mirror each other, nor insists that the differences between corporeal and incorporeal goods render any such extrapolations useless. Rather, Improvement Doctrines’ primary analytical driver is its thoughtful synthesis of the efficiency and equity rationales underlying ameliorative waste, accession, adverse possession, and mistaken improvement of land. This discussion alone yields a number of valuable insights, such as the creative point that adverse possession warrants categorization as an improvement doctrine even though its substantive law does not require enhancements to land. Continue reading "Unauthorized Improvement Across Property Law"
Jul 31, 2013 Nicole HuberfeldHealth Law
A wealth of formidable scholarship has weighed in on the constitutionality of the two aspects of the Patient Protection and Affordable Care Act that were at issue in NFIB v. Sebelius (which recently celebrated the anniversary of the historic decision), and so it can be hard to find a new perspective on either the statutory and constitutional aspects of the ACA. Nevertheless, Professor Rubin has furnished a fresh take by proposing that the ACA expresses a legislative interpretation of positive constitutional rights that articulates a right to healthcare in the United States.
The article begins by positing that the ACA faced an impassioned resistance movement because the law represents a sea change in the way we “think about American citizenship and the nature of our political community.” To prove this point, Rubin offers a consideration of the nature of the Constitution by working through its historical and philosophical origins. The first part may test the endurance of those not in the business of constitutional theory, but stick with it, because the payoff is a theory worth understanding—that the government serves the people, that a constitution is designed to be an instrument that implements the goals of the people, and that the goals of the people reveal themselves to be the “strengthening of the national government, liberty, and equality.” Importantly, this means that the Constitution must serve not only the people who drafted the text but also the subsequent generations bound by the original document’s terms. For this to be true, the meaning of the document cannot be fully understood at its drafting, because every generation will have a hand in its interpretation by acting pursuant to the principles of the document as they become meaningful in a given era. Rubin argues that this purposive view of the Constitution alters the constitutional significance of legislation, because legislation reveals the meaning of the constitution to the people living by the document in their time. Continue reading "Finding a Positive Right to Healthcare"
Jul 30, 2013 Marcia L. McCormickWork Law
Jessica A. Clarke, Inferring Desire, 63 Duke L.J. (forthcoming 2013), available at SSRN.
Fifteen years ago, the Supreme Court recognized that harassment between members of the same sex could be actionable under Title VII, in Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80 (1998). Prior to that case, lower courts had struggled to determine whether such intra-group harassment could be because of sex. In its decision, the Supreme Court identified several heuristics, or evidentiary shortcuts that could be used to support an inference that the harassment was because of sex, including that the harasser was gay. If the harasser were gay, we could infer that the harasser desired the plaintiff sexually, and could further infer that the harasser would not have treated a member of the opposite sex the way the harasser treated the plaintiff. Focusing on this heuristic, Jessica Clarke’s new article, Inferring Desire, is an important contribution to the literature on sex discrimination, not only in this context, but also more broadly. In the article, she studies all of the same-sex harassment cases that have resulted in opinions since Oncale was decided. The article’s primary focus is on the large number cases in which the courts attempt to infer the sexual orientation of the harasser as part of the analysis, focusing on desire to the exclusion of other ways to prove that the harassment is because of sex. Clarke’s study reveals that the courts seem to posit an idealized romantic version of same-sex desire that privileges heterosexuality and camouflages sexism.
The article begins by explaining how the sexual orientation and desire heuristics work. As Clarke notes, the Supreme Court defined the critical issue in sexual harassment cases to be “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” It further outlined some ways this could be proven including that proposals of sexual activity could demonstrate the different treatment if “there were credible evidence that the harasser was homosexual,” and thus presumably motivated by sexual desire that would operate differently on the sexes. Although this was not the only route to proof of sex-different treatment, Clarke found that courts had relied on desire in allowing plaintiffs to proceed past summary judgment more often than all other reasons combined. Moreover, the courts conflated homosexuality with desire in most of those cases, which meant that they often engaged in extended analysis of the sexual orientation of the harasser. Continue reading "The Trouble with Heuristics in Sexual Harassment Litigation"
Jul 29, 2013 Janet HalleyFamily Law
How do American law and culture accommodate the fact that old age is almost everyone’s fate, and that—though we know for sure that it ends at last in death—its course and the kinds of dependency it brings are so profoundly unpredictable and often categorically intense? In this brilliant, grimly humane page-turner of a book, Hendrik Hartog lays out three different historical periods marked by very different answers to this question.
Before the rise of a market economy in the middle of the nineteenth century, old people were cared for and died in their households, surrounded and aided by relatives and, if they had them, servants or slaves. But as the master/servant relation was replaced by employment in the rapidly industrializing private sphere, and as the household nuclearized into the husband/wife, parent/child family, this ready-to-hand supply of helpers dwindled, often disappearing entirely. In response to these changes, old people who had property started promising to bequeath it to children, other family members, and even housekeepers in exchange for their staying at home and devoting themselves to filling what we would now call the care gap. Continue reading "Elderlaw As Family Law"
Jul 26, 2013 Ruthann RobsonEquality
That we are still strategizing how to achieve gender equality—the equality of women’s constitutional and legal status, social and economic opportunities, and daily realities with those of men’s—is the perplexing truth at the heart of Penelope Andrews’ important book, From Cape Town to Kabul. Known for her work on South Africa and legal feminism, Andrews here posits questions about how gender equality can be achieved on a global scale. She offers no easy answers or totalizing theories, but proposes a notion of “conditional interdependence” as a method of situating women within their various cultures as a way to move forward with the project of equality. It’s a concept that could go far in resolving some of the thorniest arguments about “choice” and “autonomy” that permeate questions of women’s equality.
At its most hopeful, Andrews’ book presents the struggle for equality in South Africa as it was mounted against the Apartheid state, resulting in a new constitutional regime devoted to transformative law and politics. Andrews attributes the fact that this transformation included gender equality to a confluence of forces, but most importantly women’s participation. She suggests that the path chosen by South Africa is a model for many other nations, stressing that the involvement of women at all levels and phases is vital. Continue reading "The Global Problem of Women’s Equality"
Jul 24, 2013 Christopher SloboginCriminal Law
The recent revelations about the National Security Agency’s dragnet surveillance programs highlight three significant developments that have occurred in the national security domain in the past decade. First, the most significant foreign threats to national security are no longer nation-states but individuals armed with powerful weapons who operate independently of any country. Second, technology has vastly enhanced the government’s capacity to discover and prevent these threats. Third, technology has also both reduced individual privacy and conditioned people to surrender it without qualms.
These three developments, Simon Chesterman argues in One Nation Under Surveillance, mean that regulation of intelligence agencies needs to be rethought. While the traditional civil libertarian efforts to limit camera surveillance, data mining, biometric identification, and other types of intelligence gathering are “worthy,” he says, ultimately they are “doomed to failure because modern threats increasingly require that governments collect [such information], governments are increasingly able to collect it, and citizens increasingly accept that they will collect it.” Instead, Chesterman argues, governments should concentrate on regulating the use of the intelligence it collects, pursuant to publicly debated laws that provide a transparent framework for making decisions about how and when to disseminate the information obtained. As the subtitle suggests, this regime can be seen as a form of “social contract” in which citizens grant access to information about them in return for “a measure of increased security and the convenience of living in the modern world.” Continue reading "How Much Information Can Government Collect to Protect National Security?"
Jul 23, 2013 Paul HorwitzConstitutional Law
Ronald Dworkin’s death in February, at the age of 81, was surely a deep personal loss for those who knew and loved him, and marked the end of an epoch, an after-the-fact close to the late twentieth century, in liberal legal thought. The loss was of less moment, perhaps, to current work in constitutional law and theory. Dworkin’s missiles against the current Supreme Court, which continued to land in the pages of the New York Review of Books, were more than merely transatlantic missiles; they seemed to have been launched from another time and place altogether. Still, until the end, he wrote with grace, clarity, and an air of authority. I’m grateful that what appears to be his last major work was in one of my own areas of interest, the relationship between law and religion.
One of the bigger-picture theoretical questions that seems to have sparked renewed interest in this field is whether “religion”—whatever that is—is “special” for constitutional purposes. That question has been raised in a variety of ways. Chris Eisgruber and Larry Sager have asked, from an egalitarian perspective, whether religious claims can be set apart from claims of conscience. Both Brian Leiter and Micah Schwartzman have questioned from a philosophical perspective whether the distinctive treatment of religion is capable of coherent justification. Others, such as Caroline Mala Corbin and Nelson Tebbe, have approached things from a different but complementary position, asking whether nonbelievers are unfairly disadvantaged in the current legal regime. And religion’s specialness, as an intrinsic matter or for more earthbound legal purposes, has its defenders, too, prominent among them such writers as Michael McConnell and Andy Koppelman. It’s a question that certainly has an air of the abstract, but it has important implications for Religion Clause doctrine. Continue reading "The Sublime Dworkin"
Jul 22, 2013 Brian BixJurisprudence
Frederick Schauer,
On the Nature of the Nature of Law,
Archiv für Rechts- und Sozialphilosophie (ARSP), Vol. 98, pp. 457-467 (2012), available at
SSRN.
At the heart of analytical legal philosophy are theories about the nature of law. In recent decades, there has been a growing convergence around the conclusion that theories about the nature of law (like those of H.L.A. Hart and Joseph Raz) are conceptual analyses, determining the “essential” or “necessary” characteristics of the concept of law. (The debates about the proper way to understand theories about the nature of law are summarized in Brian Bix, Joseph Raz and Conceptual Analysis, APA Newsletter on Philosophy of Law, Vol. 6(2), Spring 2007, available at SSRN.) Against this background, Frederick Schauer, in a number of important recent articles, including On the Nature of the Nature of Law, has argued that legal theorists should focus more on “the typical truths” of law, even if this is different from the list of its “essential characteristics.”
To explain: the “essential” or “necessary” characteristics of law are those characteristics that make it “law,” the characteristics without which it would not be “law.” These characteristics will be present (by definition) in all legal systems, present, past, future, or hypothetical. Claims of which characteristics are “essential” or “necessary” are claims about our concepts, not (or at least not primarily) falsifiable claims about the world independent of those concepts. (The role of “necessity” in philosophy generally and in legal philosophy in particular is a large topic that would take us too far afield. I discuss the topic in Raz on Necessity, 22 Law and Philosophy 537 (2003), also available at SSRN.) Continue reading "The Nature of Law: Essential vs. Important"
Jul 19, 2013 Elizabeth DaleLegal History
When I was growing up in Chicago in the 1970s, I obsessed about Jane Jacobs’ Death and Life of Great American Cities (1961). The book captured much about what I loved about living in the city: The differences one discovered walking down that street instead of this one, the various faces a single block could present at different moments of the day, the way the little independent stores that sold small market journals or Asian specialties butted up against the more generic stores that sold the Snickers bars and Dr. Peppers that I lived on in high school. But there were also things about Chicago that the book did not address: The fact that there were areas not far from my home that I could not go into as a white teenager and other areas that my classmates could not go as teenaged blacks. The way that those spaces were defined as much by the city government’s decisions not to enforce laws or to fail to enforce laws equally, as they were by local preferences. The fact that Chicago’s neighborhoods, and the racial tensions between them, were defined as much by choices to ignore federal laws against redlining, racial steering, or housing discrimination as they were by community norms. And, finally Jacobs’ celebration of the local did not capture the extent to which the struggles over those problems were defined by national, and sometimes even international, debates.
I started reading Mariana Valverde’s recent book, Everyday Law on the Street: City Governance in an Age of Diversity (2012), a study of street-level urban governance in Toronto, because it promised a law and society alternative to Jacobs’ work. But while I came, so to speak, for the law and society recasting of Jacobs, I stayed for the reminders her work offers legal historians. Continue reading "Law And The City"
