Nov 7, 2024 Roger M. MichalskiCourts Law
Alexandra D. Lahav, Peter Siegelman, Charlotte Alexander, & Nathan Dahlberg,
No Adjudication (July 29, 2024), available at
SSRN.
Much has been written about the inaccessibility of court data. State courts are a mixed bag, but most state dockets are difficult to study. Tribal courts are even more heterogenous. The federal system provides reasonable top-level data but makes large-n studies of litigation activity tricky and costly. Commercial solutions are often pricey, incomplete, or both. The dearth of good data has been a massive impediment to the “democratization” of empirical studies in civil procedure. Scholars without significant research budgets or special connections have been stymied from answering the many empirical questions we all have about the day-to-day work of courts.
It is in this context that No Adjudication shines. Many civil procedure teachers have a sense of how many cases terminate early and without much fuss. Few can offer more than anecdotes when students inquire about specifics. No Adjudication fills that gap in important ways. Continue reading "Democratizing Dockets"
Nov 6, 2024 Sarah SchindlerProperty
In recent years, some states have attempted to address the U.S. housing crisis by pulling certain aspects of zoning control that affect housing supply away from local governments. In a few states, this preemption focuses on eliminating or limiting single-family zoning, while in others it more narrowly eliminates limits on accessory dwelling units (“ADUs”). State preemption has shown some promise (and also faced some legal challenges). Some land use scholars have questioned whether changing zoning laws is enough to address housing supply and affordability because much single family housing in the U.S. is within neighborhoods that are governed by covenants, conditions, and restrictions (“CC&Rs”). Those CC&Rs often mirror or go further than the local zoning code when it comes to restrictions on density, height, and residential use.
Ken Stahl’s new article addresses this concern head-on using examples from California which has both preempted local zoning and begun to limit or override certain CC&Rs. Stahl considers whether property owners have a viable claim under the Fifth Amendment Takings Clause when the state overrides CC&Rs so that owners can no longer rely on or enforce these restrictive covenants. Continue reading "States May do Away with Single Family Zoning, But What About the Covenants?"
Nov 5, 2024 Wendy Anne BachLexPoverty Law
For those who care about the scope and effectiveness of America’s federal safety net, the last two years have been disappointing. To be frank, it’s always been disappointing, but this time we were naïve enough to get our hopes up. In the wake of the pandemic we saw, and loudly celebrated, significant expansions and reforms. Even more loudly, we touted the harms prevented, and the surely incontrovertible good that resulted for poor families and poor children and called for many of those reforms to become permanent. First among many, in this category, was the brief restructuring and expansion of Child Tax Credit, which significantly broadened both the size and reach of this benefit, reducing child poverty down to historic lows. That change, along with significant expansions to unemployment benefits, Medicaid, and housing and food assistance, dramatically altered and expanded the reach of the federal safety net. There were flaws, mistakes, and holes no doubt, but overall, the extent and effect of assistance reform was breathtaking. Despite the clear positive effect of these policies and despite significant political investment by center/left policy organizations and the Biden administration, in large part attempts to make these changes permanent failed.
The authors of the article celebrated in this jot, Andrew Hammond, Ariel Jurow Kleiman and Gabriel Scheffler, have written previously in 2020 in How the Covid-19 Pandemic Has and Should Reshape the American Safety Net. In their latest piece, the authors engage in a crucial post-mortem analysis, and identify and propose a potentially highly effective solution to a key post-failure question: “the next time there is an opportunity to strengthen anti-poverty programs, what should Congress do?” Their answer, while perhaps not as lofty as the sweeping vision of those who hoped that the pandemic reforms would translate into a far broader and more universally-oriented system of support, provides a workable, effective, responsive and, potentially more resilient set of mechanisms for reform the next time opportunity calls. Continue reading "Rethinking Federal Strategy After Disappointment"
Nov 4, 2024 Christopher W. SchmidtLegal History
In The Taft Court: Making Law for a Divided Nation, 1921–1930, the latest addition to the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Robert Post offers a masterclass of legal analysis and historical scholarship. Admirers of Post’s scholarship will find in this book yet more evidence of his rare skill for illuminating the nuances of legal doctrine and identifying the social forces and ideas that explain and animate that doctrine. The Taft Court also gives Post an opportunity to demonstrate his equally admirable skill at synthesizing massive amounts of research material into an engaging and compelling historical narrative—no small an achievement for a volume that comes in at over 1500 pages.
How does he pull off the trick of making a lengthy, serious work of scholarship an inviting experience for the reader? It helps that Post writes so clearly, even when navigating complex areas of the law. He also leans into the biographies of the members of the Taft Court, crafting subtle, sensitive portraits of not only the famous justices, such as Holmes, William Howard Taft, and Louis Brandeis, but also the infamous (the irascible racist James McReynolds) and those who have been largely forgotten. No one is better than Post at the difficult task of connecting biography and jurisprudence. Continue reading "A New History of a Court Divided"
Nov 1, 2024 Sean CoyleJurisprudence
This brilliant and highly interesting essay examines the nature of polities that place central emphasis on the rule of law and thereby upon the language of rights, a language which “smothers and extinguishes” alternative forms of ordering. (P.553.) In doing so, the language of rights erodes its own foundations, leading to a society of no rights but instead of technocratic reasoning. Rights are peremptory. Simmonds describes the sharp distinction between human goods (e.g. it would be good to do x) with rights(I have a right to do x). The distinction is not metaphysical but the result of artifice that underpins our familiar form of association. (P.553.) This does not exclude those aspects of human flourishing that are better understood in terms of goods, values, or interests, where peremptory reasoning gives way to weighing and balancing. In setting out the issue in this way, Simmonds puts a significant new perspective upon arguments he has been advancing for some time: the relationship of rights to ordinary forms of human activity, the mutability of rights discourse, and a preference for the will theory of rights over the interest theory.
Simmonds is appalled by recent trends in constitutional law, which mistake the relative importance of rights for their peremptory force. Where such force is eliminated in favour of questions of importance or proportionality, the traditional hallmarks of legality and legitimacy are significantly eroded. (P.556.) Simmonds returns to this theme at a later point in the article. Continue reading "An Epoch of Rights"
Oct 31, 2024 I. India ThusiEquality
The Thirteenth Amendment provides, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Professor Adam Davidson examines the Thirteenth Amendment’s Except Clause in his article, Administrative Enslavement.
Recent attention to the harms of mass incarceration and mass criminalization has included scrutiny of the Except Clause with many critics concerned that it permits the enslavement of incarcerated people. However, Davidson’s critique is a little different than the more common, wholesale disavowal of this clause. Davidson examines how courts have interpreted this clause, critiquing their reimagination of forced labor as merely a prison administrative matter. Continue reading "The Administrative State of Slavery"
Oct 30, 2024 Rosalind DixonInternational & Comparative Law
In Unsealed Covers: A Decade of the Constitution, the Courts and the State, Gautam Bhatia provides a fascinating account of constitutional decision-making in India between 2014 and 2023. Building on his contributions to the Indian Constitutional Law and Philosophy Blog, Bhatia’s book offers a real-time account of cases involving the most pressing constitutional controversies in India during this period, and situates those cases in broader historical and institutional context.
Bhatia is a scholar but also an advocate, blogger, and close-up observer of Indian courts. Some might worry that this would lead to a lack of perspective on the relevant decisions and their longer-term influence on Indian constitutional law. But Bhatia is nothing if not far-sighted. He puts all the decisions discussed in the book in their broader historical context and offers insightful predictions about the future trajectory of constitutional law in a range of areas where the current doctrine is unsettled. For instance, he notes the split in lower courts on issues such as marital rape and restrictions on the wearing of the hijab (Pp. 113-31), suggesting that these issues will need to be resolved by the Court in the mid-term, and predicting—or at least hoping—that they will be resolved in favour of freedom and equality. He likewise explores current tensions in the Court’s jurisprudence relating to equality, and the battle between a substantive equality and exceptions-based view of provisions such as Art 16 of the Indian Constitution, before calling for a return to the more substantive vision articulated by the Supreme Court of India in State of Kerala v NM Thomas (1976) 2 SCC 310 (Pp. 133-34, 165.) Continue reading "A Court-Side View of the Indian Constitution"
Oct 29, 2024 Margo BagleyIntellectual Property Law
Jeanne Fromer & Mark McKenna,
Amazon’s Quiet Overhaul of the Trademark System, 113
Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (June 19, 2024).
“Yes! that’s it! that’s it!” Those were my words when I first saw the title of Jeanne Fromer & Mark McKenna’s paper, Amazon’s Quiet Overhaul of the Trademark System. I was sure that they had identified the culprit behind the seismic shifts in trademark law that I had sensed were taking place over the past several years. I was thrilled that they were going to put together the pieces, some of which I had personally encountered, of a bizarre and important puzzle. They did not disappoint.
Trademarks ostensibly exist to reduce consumer search costs and protect the goodwill brand owners generate in their source-identifying marks (as associated with particular goods or services). They do this by being distinctive, with fanciful (made-up words like “Exxon”) and arbitrary marks (e.g., “apple” for computers) receiving the strongest protection, and, along with suggestive marks (e.g., “Coppertone” for sunscreen), being deemed inherently distinctive, while descriptive marks (e.g., “Honey-baked Ham” for ham with a sweet glaze) may acquire distinctiveness. Generic terms, the common name for a product (e.g., “apple” for apples) are not protectible as trademarks, because other product sellers need to be able to use the common names of goods for their own products. This last restriction reflects trademark law’s concern with the preservation of competition in the marketplace. Continue reading "Fraud, Delays, and Nonsense (Marks) . . . Oh My!"
Oct 28, 2024 Maya ManianHealth Law
Robyn M. Powell,
Disabling Abortion Bans, 58
U.C. Davis L. Rev. __ (forthcoming), available at
SSRN (April 5, 2024).
In the U.S. Supreme Court’s recent decision in Moyle v. United States, the Court punted (until after the November 2024 election) on the question whether EMTALA (the Emergency Medical Treatment and Active Labor Act) preempts state abortion bans that fail to include an exception for emergency abortion care necessary to protect a pregnant patient’s health. EMTALA is a federal law mandating that hospitals receiving federal Medicare funds provide stabilizing treatment to protect a patient’s health for any individual arriving at an ER with an emergency medical condition. The ongoing litigation in Idaho, and other well-publicized cases in Texas, have spotlighted the public health crisis caused by post-Dobbs abortion restrictions especially with regard to health exceptions. Moyle leaves in place, at least for now, total bans on abortion without EMTALA’s protections in Texas and other states.
In her draft article, Disabling Abortion Bans, Robyn Powell focuses on the impact of stringent abortion bans on people with disabilities. She examines the adverse health effects of narrowly defined health exceptions, particularly on patients with chronic illnesses, including mental health conditions—serious health concerns that have been largely overlooked in litigation over health exceptions. While media attention has been primarily focused on women with urgent pregnancy complications unable to obtain emergency abortion care, less attention has been paid to individuals with chronic conditions or mental health issues who need abortion care but might not qualify for “emergency” abortion care under EMTALA or narrowly crafted health exceptions. Continue reading "Centering Disability Rights in Challenges to Abortion Bans"
Oct 25, 2024 Sarah WaldeckTrusts & Estates
In Confusing Cy Près, Christopher J. Ryan, Jr. examines judicial decision-making in cases involving proposed modifications to charitable trusts. Two doctrines permit modification: equitable deviation and cy près. Ryan uses a comprehensive data set—over 1,300 cases between the years of 1820 and 2019—to explore when courts are likely to apply the doctrines and, critically, when courts confuse them. His research reveals that courts routinely use equitable deviation when they should use cy près and, tantalizingly, suggests that the Uniform Trust Code is at least partially responsible. Ryan’s empirical work also sheds light on when courts are most likely to modify charitable trusts.
Doctrinally, equitable deviation and cy près are straightforward. Equitable deviation allows a court to modify the administrative terms of a trust—what Ryan describes as “the little details of how [the trust] is run and controlled.” (P. 30.) Cy près allows a court to modify “the dispositive and material terms of the trust (i.e., the purpose of the trust, the charitable cause the trust addresses, and the delivery of the trust assets to the intended beneficiaries).” (P. 30.) Both doctrines require a change in circumstances that negatively affects the trust. For equitable deviation, the change in circumstances must impair the functioning of the trust in a way that threatens the trust’s very purpose. For cy près, the change in circumstances must make the trust’s specific purpose impracticable, impossible, or illegal, and the settlor must have manifested a charitable intent that is more general than the specific purpose that has become unsustainable. Continue reading "Unexpected Twists in the Modification of Charitable Trusts"
