Oct 24, 2024 Rachel RebouchéFamily Law
Reva B. Siegel & Mary Ziegler,
Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, __
Yale L. J. __ (forthcoming), available at
SSRN (March 18, 2024).
In Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, Professors Reva Siegel and Mary Ziegler demonstrate how the anti-abortion movement’s effort to reinvent the Comstock Act (1873) as a national abortion ban lacks historical, legal, and democratic legitimacy.
The Act originated as an obscenity statute that criminalized “any article or thing designed or intended for the prevention of conception or procuring of abortion” or for “an indecent or immoral purpose.” Comstock revivalists, to borrow Siegel and Ziegler’s term, claim that the Act’s prohibition on mailing “any article or thing” bans the transit, in the U.S. mail, of all materials connected to abortion care—pills, equipment, or most anything else. Revivalists argue that courts should begin enforcing the Act to ban abortion nationwide, and some judges appear sympathetic to those arguments. In litigation described below, a federal district court and an appellate circuit court cited the Comstock Act in deciding to suspend FDA approval of medication abortion or to reimpose restrictions on it. Continue reading "The Radical Reinvention of the Comstock Act"
Oct 23, 2024 Maartje van der WoudeCriminal Law
In her article-based dissertation, Unravelling Unauthorized Migrants’ Legal Consciousness Processes, Mieke Kox provides a comprehensive and empathetic examination of the intricate relationships between unauthorized migrants and the legal systems that govern their lives. This work is a significant contribution to the field of crimmigration—a term that captures the intersection of criminal law and immigration law—highlighting the lived experiences of unauthorized migrants in the Netherlands. Legal scholars, particularly those focused on crimmigration, will find Kox’s ethnographic approach and insights invaluable for understanding the often-overlooked human dimensions of immigration law and enforcement.
Kox’s dissertation stands out for its unique ethnographic research, which sheds light on the personal and often harrowing experiences of unauthorized migrants. By documenting these experiences, Kox offers a critical perspective on how legal frameworks and immigration policies impact individuals on a daily basis. This perspective is crucial for legal scholars who aim to develop more humane and effective immigration policies. Kox’s work challenges the reader to consider the moral and ethical implications of current immigration laws and practices, making it an essential read for those engaged in the crimmigration debate. Continue reading "The Human Impact of Crimmigration"
Oct 22, 2024 Suzette M. MalveauxCourts Law
In the United States, we are taught from an early age that we have a “right to our day in court.” This right to access the civil justice system is drilled into many of us as a given, something as American as apple pie. Yet upon further reflection, it is clear that this proverbial right has been tempered by forced arbitration. Most workers and consumers across the country cannot be heard by a jury of their peers in a free, public, transparent forum subject to appellate review, procedural guardrails, and substantive rights. Instead, anyone wanting a job, cell phone, bank account, you name it, is forced to use a private dispute resolution system to challenge their employer, landlord, retailer, by themselves and in secrecy.
Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should also be exempt from compulsory arbitration. Continue reading "Leveling the Playing Field for Racial Justice in the Civil Litigation System"
Oct 21, 2024 Carlos BernalJurisprudence
Prof. Moore claims that the interpretations of the International Covenant on Civil and Political Rights by the Human Rights Committee, the body overseeing states’ compliance with that instrument, do not consistently follow the international law rules of treaty interpretation of the Vienna Convention of the Laws of the Treaties. Those rules command treaty bodies and states to interpret treaties according to the text’s ordinary meaning, while also considering context and purpose. Instead, the Committee plays an influential role by interpreting the Covenant in an evolutionary way, according to its own normative goals.
This practice is common among other human rights bodies, such as the Interamerican Human Rights Commission, and rapporteurs. This practice gives rise to a jurisprudential question, namely, about the nature of the human rights standards that treaty bodies and rapporteurs create by means of their normative interpretations. Continue reading "Treaty Interpretation at the Human Rights Committee: Reconciling International Law and Normativity"
Oct 18, 2024 Leah LitmanConstitutional Law
The Supreme Court’s recent opinion in Securities and Exchange Commission v. Jarkesy invalidated the SEC’s mechanism for adjudicating fraud claims seeking civil penalties on the ground that the adjudications violated the Seventh Amendment. To explain that conclusion, the Court invoked, among other sources…Baron de Montesquieu (who was quoted by Alexander Hamilton after all!) and William Blackstone. Debates about constitutional interpretation are often peppered with references to a few Enlightenment thinkers, such as Montesquieu, Blackstone, and John Locke. Indeed, even nonconstitutional interpretation debates are as well; in the Court’s recent decision overturning Chevron deference, Loper Bright Enterprises v. Raimondo, Justice Gorsuch worked in some references to Blackstone in his concurrence.
It’s this phenomenon (at least its constitutional variety) that Christopher Havasy, Joshua Macey, & Brian Richardson seek to inter in Against Political Theory in Constitutional Interpretation. The article first documents the prevalence of invoking thinkers such as Montesquieu, Locke, Blackstone, and Emmerich de Vattel in constitutional debates. The justifications for doing so are often a bit underspecified, but the authors focus on a particular type of Enlightenment-gesturing: the citation of “Enlightenment political theorists as authoritative guides to U.S. constitutional meaning,” or as having “probative value to discerning Founding-era constitutional meaning.” The framers and ratifiers cited and invoked these thinkers in constitutional debates, this argument goes. So if they thought Enlightenment political theory relevant to constitutional interpretation, then we should treat the Enlightenment political theory the Framers invoked as providing authoritative insight into their interpretations of the Constitution. Continue reading "Locke(d) in a Vicious Cycle"
Oct 17, 2024 Joan MacLeod HeminwayCorporate Law
The rise and dominance of institutional investors in public company stockholder profiles has increasingly shifted significant scholarly and popular attention toward those institutions and away from individual investors. Market factors periodically refocus attention on retail investors, however. One of those factors in recent years has been the meme stock phenomenon, which attracted widespread public attention in early 2021 when the common stock of GameStop Corp. and AMC Entertainment Holdings Inc. achieved record high public market prices. The continued salience of activist retail investors recently has been reinforced by a meme stock resurgence that has again put GameStop and AMC in the news.
The ongoing work of Professors Sergio Alberto Gramitto Ricci and Christina Sautter is helping to educate many audiences about legally significant demographics that shed light on current retail investors and their behaviors. Specifically, their joint work addresses ways in which investors’ behaviors have responded to the nearly universal availability of wireless access through a variety of ubiquitous devices (including especially cell phones). This broad-based wireless access has created a new cadre of “wireless investors” who collect and share investment information through social media and Internet applications and buy and sell securities through online trading platforms.
In Wireless Investors & Apathy Obsolescence, Gramitto Ricci and Sautter focus on the potential for wireless investors to overcome investor apathy. They describe that apathy and explain its genesis. They then illustrate why the advent of wireless investors may more optimally empower retail shareholders. Continue reading "Digital Engagement and the Retail Investor"
Oct 16, 2024 Eyal ZamirContracts
Scott Schanke, Gordon Burtch & Gautam Ray,
Digital Lyrebirds: Experimental Evidence that Voice-based Deep Fakes Influence Trust, __
Management Science __ (forthcoming), available at
SSRN (May 1, 2024).
The reviewed article describes an experiment in which an audio chatbot was either imbued with a random voice or with a clone of the participant’s voice, and the participant was either informed or not informed that they were communicating with a bot. It found that people tended to trust the bot more when it imitated their voice and that this effect was not influenced by whether or not participants were informed that their partner was a bot. While the article does not discuss any legal questions, it is submitted that it carries interesting implications for consumer law and regulation.
In recent decades, thousands of behavioral studies have documented numerous systematic and substantial deviations from the assumptions of economic rationality (Zamir & Teichman 2018). A very influential strand of scholarship has called for the use of behavioral insights not only to better understand deficiencies in human judgment and decision-making, but also as a means to mitigate those deficiencies through nudges—“low-cost, choice-preserving, behaviorally informed approaches to regulatory problems” (Sunstein 2014). While effective in some contexts, it has been persuasively argued that nudges are unlikely to be effective in business-to-consumer relationships, where firms are both able and motivated to undo their effect (Willis 2013). In fact, firms are quicker and more effective than legal policymakers at taking advantage of consumer heuristics and biases for their own interests. Unlike nudges, which aim to improve decision-making for the benefit of the decision-maker or society at large, sludges aim to benefit the entities that employ them. The proliferation of online transactions, the spread of personalized marketing techniques, and advancements in AI technology provide marketers with new opportunities to exploit consumer heuristics—and pose new challenges for legal policymakers. Continue reading "Hearing It in Your Own Voice: Audio Deepfake as a Marketing Technique"
Oct 15, 2024 Erez AloniEquality
In Andrew Sean Greer’s Pulitzer-winning novel Less, protagonist Arthur Less embarks on a global journey to avoid his younger ex-lover Freddie’s wedding. Through his adventures, Arthur grapples with his experiences as both the younger and older partner in age-gap relationships. This fictional journey resonates with the real-world dynamics explored in Tony Silva’s sociological study Daddies of a Different Kind: Sex and Romance Between Older and Younger Adult Gay Men. Silva examines these intergenerational relationships—especially common among same-sex male couples, who are more likely to have large age gaps than other types of pairings—and delves into the construction of the “daddy” identity, a role characterized by mentorship, age, and masculinity. His research offers a nuanced analysis of daddy-younger pairings, challenging stereotypes and revealing the emotional depth and cultural significance of these partnerships.
Silva’s research is built on the narratives of 39 men who identify as daddies and 26 younger men who were in relationships with age gaps of at least ten years. Importantly, all the interviewees were adults over 21, and the study exclusively focuses on relationships between adults. This distinction is crucial in avoiding harmful stereotypes, emphasizing instead the mutual emotional enrichment these partnerships often provide. Silva’s book seeks to answer several key questions: Why are gay men more open to such connections compared to heterosexuals or lesbian and bisexual women? What does it mean to be a “daddy,” including the forms of masculinity it involves? What is the quality of these relationships, and how do financial arrangements operate within these dynamics? Along the way, Silva addresses deeper themes such as LGBTQ+ culture, politics, nonmonogamy, and the fluid boundaries between friendship and kinship within the gay community. Continue reading "Queering Daddy Issues"
Oct 14, 2024 Margaret KwokaAdministrative Law
Most arms of government are subject to stringent transparency requirements in an effort to improve public accountability and, relatedly, public trust. For example, the Freedom of Information Act requires public access to most government records, and the Administrative Procedure Act requires agency explanations for final actions such as new regulations or adjudicatory decisions. By contrast, other powerful institutions in society, namely businesses and corporations, are required to reveal very little about their operations or publicly to justify their positions. Paradoxically, though, the public distrusts government far more than these opaque actors and believes government is incompetent, at best, and nefarious, at worst.
Shedding remarkable light on the underlying reason for this illogical result is a new article, The Submerged Administrative State, by Gabriel Scheffler and Daniel Walters. Scheffler and Walters persuasively argue that a significant contributing factor to the lack of public trust in government is that the work of administrative agencies is “submerged.” Some scholars have studied the incomprehensibility of government documents and disclosure to the public, while others (myself included) have examined the failures of transparency laws. What makes Scheffler and Walters’ approach to studying the visibility of government unique, though, is their ability to deftly amalgamate a variety of legal constraints, doctrines, and incentives that push agency work under the radar. Indeed, they convincingly demonstrate that this phenomenon works to the detriment of government by breeding distrust among the citizenry. Continue reading "Surfacing Agencies"
Oct 11, 2024 Charles A. SullivanWork Law
Good “outside the box” scholarship, even if not fully persuasive, can provide useful insights for those of us still stuck inside our boxes. And that’s a good description of Ryan H. Nelson’s An Employment Discrimination Class Action By Any Other Name. It offers a creative and engaging solution to the problem of mandatory, pre-employment arbitration agreements, even if I would not wager much that judges would approve it.
Any Other Name begins well inside the box with a dead-on, refreshingly-candid look at how the Supreme Court caused the decline of the employment discrimination class action. Although he names other culprits (including that Court’s pleading and class action decisions), Ryan mostly blames how the Supreme Court has read the Federal Arbitration Act (FAA) to eradicate class relief in any forum by validating express waivers of the right to proceed collectively either in court or before an arbitrator. He also traces the failure of direct doctrinal attacks on the FAA’s applicability to employment or the validity of particular arbitration agreements. In contrast, “relatively successful strategies” included public enforcement and qui tam actions. These approaches “accepted the validity and ubiquity of individual arbitration agreements but nevertheless found a way around them by litigating through nonworker real parties in interest” that never executed an agreement to arbitrate. (P. 1427.) That struck me as an important insight—not obvious but sensible once Ryan pointed it out! Continue reading "Avoiding the Federal Arbitration Act in Title VII Cases"
