Jun 24, 2024 Nadia SawickiHealth Law
Dov Fox and Jill Wieber Lens’ 2023 prescient article, Valuing Reproductive Loss, could not have arrived at a more important time. In February 2024, the Alabama Supreme Court held that a state law permitting parents to recover for the wrongful death of a minor child also protects cryopreserved in vitro embryos. The case sparked vigorous nationwide debate about its implications for access to medical services like assisted reproductive technology and abortion. Broader debates like these are absolutely essential, but according to Fox and Lens, they risk crowding out the core question posed in the Alabama lawsuit and many others: What legal remedies should be available to intended parents when a defendant’s wrongful conduct results in the loss of their desired child before birth? Fox and Lens tackle this challenging issue head-on, and directly counter the narrative that rights to abortion will inevitably be jeopardized by legal recognition of reproductive loss.
This article reports on the results of the authors’ empirical study of jury verdicts in cases brought by intended parents who have suffered losses as a result of mishandled embryos, mismanaged pregnancies, or general negligence (for example, a car accident that causes a miscarriage). They find “wildly erratic outcomes” that do not correlate with the factors one might think are most likely to impact damages awards–such as the plaintiff’s age at the time of loss, the gestational age of the fetus, the type of legal action brought, or the nature of the defendant’s wrongdoing. Instead, they suggest that the outcomes in these reproductive loss cases may be driven by jurors’ unconscious biases about race and class, about who qualifies as a “deserving parent,” and about whether a child is truly “wanted.” To counter these biases and the resulting disparities in damage awards, the authors present a novel and more principled framework for valuing reproductive loss in civil litigation. Continue reading "A Principled Approach to Damages in Pregnancy Loss and Beyond"
Jun 21, 2024 Albertina AntogniniFamily Law
This Fall in my Family Law class, a student emailed me a Saturday Night Live clip after our discussion of Dobbs v. Jackson Women’s Health Organization. It is a Weekend Update skit, where Kate MacKinnon plays Justice Amy Coney Barrett, who is being interviewed by the anchor, Colin Jost. Throughout the interview, MacKinnon—as Justice Barrett—keeps repeating various iterations of “Do the nine. Just do the nine and pop it.” The “nine” refers to the nine months (or 40 weeks) of gestation; the “pop it” refers to the act of giving birth. The reason the clip is funny, in a tragic sort of way, and the reason my student shared it with me, is because MacKinnon’s breezy directives perfectly capture Dobbs’s complete failure to acknowledge any of the physical facts of pregnancy and birth. Later that semester, during the section of our course that addresses how the law accommodates pregnancy, another student sent me a TV advertisement made by Frida, a company that sells products for new parents. The ad shows a woman postpartum, waking up in the middle of the night to pee. It is intimate and matter-of-fact. Anyone who has given birth, or has been with someone who has given birth, will immediately recognize the hospital-issued mesh underwear, the extra-long cotton pads, the peri bottle filled with lukewarm water. The ad made headlines for being rejected for a spot during the 2020 Oscars ceremony. In an email, the Academy of Motion Picture Arts and Sciences suggested that Frida offer “a kinder, more gentle portrayal of postpartum.” The student sent me the ad to follow up on our class discussion about how the experience of birth, and what immediately follows, is so rarely depicted.
Gestation, pregnancy, and birth, along with the bodies that house these and other life processes, are mostly missing from the laws that regulate them. This is why Kate Clancy’s book, Period: The Real Story of Menstruation, is such vital reading. Put simply, “[b]odies matter.” (P. 182.) They matter in myriad ways that are neither obvious nor straightforward. The principal lesson Clancy’s book offers family law scholars is methodological—she provides us with tools to help identify how alleged facts about bodies and bodily activities are often better understood as judgments that are made as a matter of science or, as the case may be, as a matter of law. Continue reading "Against Normalizing Bodies"
Jun 20, 2024 Wendy WagnerAdministrative Law
Is the bureaucracy a deep state run by unaccountable bureaucrats? Most of us in administrative law think not, but when push comes to shove, we must concede that we have precious little idea of how agency staff operate on the ground to fulfill their statutory commands.
In The Accountable Bureaucrat, Anya Bernstein & Cristina Rodríguez (hereinafter B&R) step into this void and, in a manner reminiscent of the big reveal in the Wizard of Oz, expose the “man behind the curtain.” By asking the bureaucrats themselves how they transform “abstract statutes into concrete rules that govern conduct” (P. 1679), the authors make significant advances in our understanding of this important, but rarely studied world of bureaucratic discretion. Armed with a pre-prepared list of questions that structure their open-ended interviews, the authors (Bernstein holds a PHD in anthropology) canvass thirty-nine current and former employees (both political and career) from eleven different agencies, ranging from the Department of Homeland Security to the Environmental Protection Agency. (Pp. 1685-86.) B&R then code the transcripts and notes with a detailed rubric in search of patterns and behaviors that cut across the different regulatory programs. Continue reading "How Do Bureaucrats Exercise Policymaking Discretion? A Glimpse Inside the Black Box"
Jun 19, 2024 Leonid SirotaConstitutional Law
Chief Justice John Roberts (in)famously parodied the gap between the interests of judges and practising lawyers and those of academics by suggesting that the latter were unaccountably preoccupied by “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.” One law professor even jokingly took him up on the suggestion. But the real trouble, comparative constitutional scholar Aileen Kavanagh might say, is that constitutional law scholars would not even be interested in 18th-century Bulgaria. Categorical imperatives, sure; the people for whom they are to serve as universal laws, not so much.
Kavanagh wants to change that: she wants us “to ‘keep it real’ in constitutional theory.” Too much constitutional scholarship, she argues, is inattentive to the real world, to the flesh-and-blood individuals who inhabit it, and above all to the institutions that govern it. It busies itself with propounding normative theories derived, at best, from highly stylized models of reality, and disdains “mere” description of how things actually work. That’s not good enough, Kavanagh argues. Because “[t]he normative depends on the descriptive to a large degree…, constitutional theorists of all stripes would benefit from submitting their theories to a rigorous reality-check.” This is, it may be worth emphasizing, a concern with and an argument about scholarship, not adjudication. At most, as is noted below, more reality-based academic work may prove more useful to the courts than its more abstract counterpart. Continue reading "A Real Useful Reminder"
Jun 18, 2024 Christopher J. BuccafuscoIntellectual Property Law
Peter Karol,
What’s The Use? The Structural Flaw Undermining Warhol v. Goldsmith, __
J. Copyright Soc’y __ (forthcoming, 2024), available at
SSRN (Dec. 13, 2023).
Virtually no one in the scholarly community is happy with the Supreme Court’s 2023 decision in Andy Warhol Foundation v. Goldsmith. The case produced aggressive majority and dissenting opinions by justices whom we normally think of as well aligned: Justice Sotomayor writing for the majority, and Justice Kagan writing in dissent. Peter Karol’s recent article shows that the opinions generated more heat than they did light, because the two Justices fundamentally misunderstood the case, the law, or both. This leaves the case’s precedential value deeply in doubt.
The case pitted the Andy Warhol Foundation (AWF), a nonprofit organization created after Warhol’s death to license uses of his artwork, against Lynn Goldsmith, a photographer who took a photo of the musician Prince in 1981. In 1984, Goldsmith’s licensing agency granted Vanity Fair a license to use the photograph as an artist reference for a story that would appear in the magazine. Vanity Fair then commissioned Warhol to create an image to illustrate a story about Prince. Warhol (and/or his team) created 16 images based on the Goldsmith photo (the Prince Series), one of which was used by Vanity Fair. Then, when Prince died, Condé Nast contacted AWF about licensing one of the Prince Series prints for a commemorative issue, which it published in 2016. Condé Nast chose a different Warhol work depicting Prince for the cover of that issue. Continue reading "The Textualist Supreme Court Misreads the Copyright Act Once Again"
Jun 17, 2024 Christopher SloboginCriminal Law
By now, the great American incarceration tragedy is old news, as are most ideas about what to do about it. But then along comes this book, Excessive Punishment: How the Justice System Creates Mass Incarceration, edited by Lauren-Brooke Eisen, a former prosecutor and journalist who is now senior director of the Justice Program at the Brennan Center for Justice. Consisting of 38 chapters by 38 authors, along with an introduction by Eisen, the book provides a refreshingly informative and often inspiring take on our incarceration problem. It is refreshing because each chapter is very short (all are under 10 pages once the notes are taken out) and written in punchy, concise language shorn of scholarese. It is informative because, even for someone like me who has written quite a bit about the topic, new insights abound, if only because the authors include not just law professors, but sociologists, criminologists, defense attorneys, prosecutors, directors of advocacy and research entities, investigative journalists, federal and state officials, and a number of formerly incarcerated individuals. It is inspiring because, while all of the authors offer searing diagnoses of our obsession with punitiveness, they also provide bracing stories of people resisting it or provocative means of undermining its consequences.
If there is one central message in the book, it is that our system is far too harsh, for a variety of reasons. Eisen’s introduction argues that “[i]ncarceration has become about neither rehabilitation nor holding people accountable. Instead, it has become about retribution.” (P. 2.) Jonathan Simon agrees, writing that “[t]he appeal of accountability, of paying a debt to society, is supposed to be reintegration[,] in reality, it has usually meant the opposite—sanctions into perpetuity.” (P. 21.) Jeremy Travis and Bruce Western, in the book’s final chapter, put it this way: “The great injustice of the punitive posture of contemporary criminal justice [is] to attribute a superabundance of moral agency to those who, by virtue of economic, demographic and social disadvantage, often had the fewest choices to make.” (P. 339.) Backing up this point, Lenore Anderson points to research finding that even victims, many of whom know their perpetrators, prefer rehabilitation over punishment (P. 30.) Peggy McGarry starkly concludes that “we seem to be content to waste the lives of those who have broken the law.” (P. 258.) Continue reading "The Many Colors of Punitiveness"
Jun 14, 2024 Seth EndoCourts Law
Recent debates over reforming civil litigation frequently involve questions about the use of empirical data, the value of critical approaches, and the access-to-justice gap (especially as it relates to pro se litigants). Roger Michalski and Andrew Hammond’s Mapping the Civil Justice Gap in Federal Court marries these themes, using judicial data to uncover the collective identity of pro se litigants through an exercise of critical cartography (i.e., creating maps that detect and challenge social relations of power which “create and perpetuate inequality and inequity”).
Understanding the demographics of pro se litigants is both practically and conceptually important. In 2021, more than 100,000 cases involved pro se parties, comprising more than 25% of the non-prisoner civil docket in federal courts. These litigants must navigate a system built for lawyers, raising meaningful policy and legal questions that are largely being addressed in the dark. Continue reading "De-Othering Pro Se Litigants"
Jun 13, 2024 Matteo GattiCorporate Law
Roberto Tallarita’s recent Harvard Business Review article, “AI Is Testing the Limits of Corporate Governance,” insightfully discusses the upheaval at OpenAI last November, when its CEO, Sam Altman, was temporarily ousted by the board, a move quickly reversed to thwart his potential departure to Microsoft with key team members.
Tallarita’s piece showcases the inadequacies of traditional corporate governance mechanisms in managing the unique challenges posed by artificial intelligence (AI). His evaluation of the OpenAI board actions is based on two key observations. He asserts that conventional corporate governance design is ill-equipped to mitigate the existential risks associated with AI. This shortcoming arises from a fundamental clash between the pursuit of profit and societal goals. In scenarios where financial incentives are as compelling as they have been for a disruptive entity like OpenAI, profit motives are likely to take precedence. Notably, OpenAI diverged from typical governance by securing investments for an entity fully controlled by a nonprofit, a rare approach in the tech sector. Continue reading "What Corporate Governance for AI?"
Jun 12, 2024 Martha ErtmanContracts
Danielle D’Onfro’s article Contract-Wrapped Property, provides a new lens to understand—and counter—sham consent in clickwrap and browse wrap agreements. Judicial treatment of constructive notice as assent in online agreements, of course, greatly benefits huge companies like Amazon, Google, and AT & T at the expense of everyone else, especially consumers. The big take away of Contract-Wrapped Property is that attorneys and judges unwittingly protect a long-prohibited type of property interest—equitable servitudes in chattels—when they enforce clauses limits on liability against downstream buyers that were not parties to the original contract. According to D’Onfro, these decisions endanger the very foundations of private ordering such as ownership itself and also could undermine product liability doctrine.
Contract-Wrapped Property makes a tremendous contribution to our understandings of private ordering. By exposing this threat to previously stable property doctrine and the policies behind it, D’Onfro’s article issues a wake-up call to how doctrinal developments in contracts can upset what she calls the “private law equilibrium” between contract, property, and tort law. Continue reading "Inequitable Servitudes: Property Law Shield Against Contractual Excesses"
Jun 11, 2024 Cesar Rosado MarzánWork Law
“Do me a favor, just get your union guys, your leaders to endorse me. And I’ll take care of the rest … your current negotiations don’t mean as much as you think.” Donald Trump speaking to striking autoworkers in Michigan.
Today’s U.S. labor law scholarship typically asserts a broken or dead discipline. With a mere 6% of private sector workers in unions or covered by collective bargaining agreements, labor law appears irrelevant to most workers. Scholars thus try to come up with ideas to rebuild labor law through novel interpretations of statutory texts or through statutory reform, such as the Employee Free Choice Act and the Pro Act. While attempts to breathe new life to U.S. labor law via legal reform is important, sometimes it makes sense to reflect on how labor law as a political project came to being, how it lost its luster, and how to rebuild it. Democracy at Work: Contract, Status and Post-Industrial Justice, by Ruth Dukes and Wolfgang Streeck, a law professor and a sociologist, respectively, draws on this this tradition anchored in political economy and the social sciences.
Labor Law as Part of a Political Project
According to the authors, labor law was an essential part of a 20th century project aiming to build an entirely new political economy (P. 6). They highlight the work of American socio-legal scholar, Phillippe Selznick and German legal scholar, Hugo Sinzheimer, to explain how labor law played a key role in reconstructing institutions to sustain a bigger project for “industrial democracy.” Continue reading "Constituting Labor as an Institution for Democracy"
