May 27, 2024 Rebecca ZietlowConstitutional Law
Jill Wieber Lens, Fetal Life Hypocrisies (unpublished draft 2024).
The United States Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, rejecting a constitutional right to choose an abortion, has laid bare the landscape of the inequality in reproductive rights and health care in this country. In Fetal Life Hypocrises, Jill Wieber Lens questions the foundational justification for state bans on abortions, that banning abortions will promote fetal life. Lens argues that both the antiabortion and proabortion movements have failed to recognize the millions of fetal deaths that are not caused by abortions. State bans on abortion are unlikely to significantly reduce the number of abortions nationally. However, they will likely increase fetal deaths, the legal term for miscarriages and stillbirths, pregnancy losses before and after 20 weeks, respectively. Moreover, the women who are most likely to lose their pregnancies are those who had the least protection under the previous Roe/ Casey regime—people of color and poor people of all races. The Dobbs ruling forces advocates for reproductive rights to re-theorize constitutional claims for rights and provides an opportunity for a widespread campaign for reproductive justice.
As reproductive justice advocates have been arguing for years, even before Dobbs millions of people lacked control over their reproductive lives. The individual liberty based right to choose an abortion identified by the Court in Roe was woefully inadequate to achieving reproductive rights for many people, especially women of color and low-income women of all races. Most notably, the Supreme Court held that neither the states nor the federal government were obligated to pay for abortion services, so that people who are dependent on the state for their health care lacked access to abortions well before Dobbs. Advocates in the reproductive justice movement point out that throughout our history, people of color have lacked not only the right to choose not to have a child, but also the right to choose to have a child, and to raise that child and parent her with dignity. Continue reading "Questioning the foundation of Dobbs"
May 24, 2024 Carl ColemanHealth Law
Rebecca Haw Allensworth & Cathal T. Gallagher,
Doctors Playing Lawyers, Vand. L. Rsch. Paper No. 23-42, available at
SSRN (Aug. 9, 2023).
In Doctors Playing Lawyers, Rebecca Haw Allensworth and Cathal T. Gallagher argue that professional disciplinary systems are “in a state of crisis” (P. 7.) Clear evidence of misconduct is often “ignored or tolerated.” (P. 3.) Despite their ostensible mission to protect the public from incompetent and unethical behavior, boards “systematically fail to identify and stop dangerous professional practice.” (P. 7.)
A key reason for this problem, they argue, is that disciplinary boards are made up primarily of members of the regulated professions. This results in two problems. First, by nature, “self-disciplinarians” are likely to over-identify with the accused (P. 7). Second, except in the system of lawyer discipline, professionals serving on disciplinary boards typically lack any expertise or training in investigation or adjudication. Instead, they are “peers who take a few days out of their busy professional lives to moonlight as self-regulators,” usually with “very little in the way of standards or law to apply, other than to do discipline in the name of the ‘health, safety and welfare’ of the people of their state.” (P. 5.) What results is a haphazard process of “casual, collegial decisions,” rather than a rigorous application of the rules to the facts of the case. (P. 7.) It is therefore not surprising that disciplinary boards exhibit a “high level of variability and inconsistency” in the way they react to allegations misconduct, even within the same profession in the same state. (P. 38.) Continue reading "A Comparative Law Analysis of Professional Disciplinary Systems: What Can Tennessee Learn from the U.K.?"
May 23, 2024 Philomila TsoukalaFamily Law
Since Dobbs was decided, abortion rights advocates have been nervously looking around the legal landscape wondering what doctrinal domino is likely to fall next. At this very charged moment, Professors Dov Fox and Jill Wieber Lens bravely chose to write about the downsides of legally underestimating the ravages of reproductive loss post-conception. In their recent article, Valuing Reproductive Loss, they offer the first empirical study of jury awards in tort cases on reproductive loss, which they define as ranging from mismanaged embryos in the IVF context all the way to mismanaged pregnancies, including early miscarriages and late term stillbirths. The authors suggest that the legal system is not treating prenatal life in a coherent manner and hypothesize that racial and class biases may have a lot to do with the resulting awards in the cases they analyze. They also offer a normative framework for valuing such losses in the tort context, one that they hope will promote reproductive justice, but also bring doctrinal coherence to the treatment of reproductive loss.
Valuing Reproductive Loss starts with a striking example of seeming doctrinal incoherence. A couple in Texas lose their son, whom they had already named “Adam” in utero, at forty weeks of gestation because of a negligent delay in proper birth care. Texas law deems Adam to be an “unborn child,” but his parents cannot recover for his wrongful death. Texas law does not allow medical malpractice claims when the malpractice causes the death of an unborn child. Had the doctor in question been accused of performing an abortion even at five weeks of gestation, the doctor involved would have faced serious criminal consequences, ranging from a hefty monetary fine to significant time in prison. However, when it is time for the parents to claim compensation for the loss of a full-term baby via medical malpractice, the state blocks them from doing so, at least if what they want is compensation for the fetus as a separate individual. The gestating person can recover compensation for their own bodily injury, as though the lost fetus were another limb, despite the law’s panegyric characterization of the fetus as an “unborn child.” Taking it one step further, the authors highlight that if the loss of the embryo had happened in vitro, via the negligent destruction of someone’s embryos because of a clinic’s freezer malfunction, the would-be parents would only be able to seek compensation for their loss through the category of destruction to personal property. Similar inconsistencies can be found in states that allow abortion, where fetuses are also sometimes recognized as persons in the context of a wrongful death suit, while at other times they are merely described as body parts. Professors Fox and Lens thus show that reproductive loss is ridden with inconsistency, with a fetus being a lost limb in one case and a deceased person in the next and cases varying within but also between states. Continue reading "How much is the lost chance to reproduce worth?"
May 22, 2024 Michael YuTrusts & Estates
Goldburn Maynard & David Gamage,
Wage Enslavement: How the Tax System Holds Back Historically Disadvantaged Groups of Americans, 110
KY. L.J. 665 (2021-2022), available at
SSRN (Mar. 28, 2024).
In their article, Professors Goldburn Maynard and David Gamage call for reform of the U.S. tax system, specifically identifying the phenomenon of “wage enslavement” and then arguing that it is a “central injustice of our tax system.” (P. 691.) Professors Maynard and Gamage argue that the problem of wage enslavement should be recognized as central to the pursuit of tax justice and to the “deeply connected” pursuit of racial justice, and they further contend that only by addressing wage enslavement “can we effectively promote a more just future of shared prosperity for all Americans.” (P. 692.)
What is “wage enslavement”? The term, as Professors Maynard and Gamage use it, refers to the means whereby the existing tax system (“‘by heavily taxing wage and salary incomes, and only lightly taxing the returns to owning wealth’”) inhibits historically disadvantaged groups from building wealth or from catching up with historically more privileged groups. Such inhibiting effects then trap many members of historically disadvantaged groups into a cycle of dependence on tax-disfavored wage and salary incomes because of the difficulty they encounter in earning enough wages to cover all living expenses and, further, in starting to build wealth. (Pp. 666-67.) The Professors clarify, “Of course, by calling this phenomenon “wage enslavement,” we do not mean to imply that this is an injustice at anywhere near the level of true, literal slavery.” (P. 667.) Continue reading "Towards Tax and Racial and Equal Justice"
May 21, 2024 Maneesha DeckhaEquality
Equality and patent law may seem to make strange bedfellows. Convincing analyses exist though of how legal definitions related to science and innovation and patents themselves have fostered domestic inequalities as well as global health disparities. Concerns about the intra-human inequities that patent law produces are pressing ones. Still, in remaining anthropocentrically-bound by presuming that only humans can be inventors, these concerns miss the full scope of patent law’s inequality quotient. Laura A. Foster’s recent article Plants as Inventors: Interrogating Human Exceptionalism within Narratives of Law and Vegetal Life refreshingly takes up the inventive capacity of plants themselves as knowledge producers.
Foster seeks to correct her own human-focused examination of patent law’s role in elevating Western science at the expense of Indigenous knowledges in her 2017 book Reinventing Hoodia: Peoples, Plants and Patents in South Africa. With her 2023 article Plants as Inventors, Foster brings attention to plants, and patent law’s role in subordinating them, through telling stories about plants that pivot on the “binary logic of human exceptionalism” (P. 228). The article provides an engaging and instructive analysis inspired by what Foster terms “a vegetal feminist approach” (P. 229). Continue reading "Planting Equality"
May 20, 2024 Samuel ShawCriminal Law
Judges holding bail hearings in urban and suburban courthouses dispense “stranger justice.” All they know of the defendant before them is in the court file. For rural judges, it’s different. Enmeshed in a “density of acquaintanceships,” they’re likely to “have personal information external to the court record about many defendants … .” (P. 187). So far, so good: more information should lead to better-informed bail determinations. But the other side of the coin is that rural defendants have access to fewer bail administration services, like substance use counseling, monitoring, and bail bonding. More knowledge and fewer resources means that a rural judge might know exactly what a defendant needs to ensure their safe return to the community and subsequent appearance at trial – and yet be unable to provide it.
That is the core contention of Jordan Gross’s Pre-Trial Justice in Out-of-the-Way Places – Including Rural Communities in the Bail Reform Conversation. The article interrogates whether national frameworks for bail reform fit rural Montana communities. But quietly, it’s more ambitious than that. The article assesses the proposals of the Uniform Law Commission’s Pretrial Release and Detention Act (UPRDA) as applied to rural Montana. In the process, it reveals the frailty of “Uniform” anything in the context of bail reform. It also models a better way forward: courthouse-by-courthouse solutions sensitive to local conditions. Bail reform, we learn, is not generalizable. Gross’s approach holds promise for jurisdictions both urban and rural – but it will be resource-intensive. Continue reading "Localizing Bail Reform: Rural Montana and Beyond"
May 17, 2024 Adam N. SteinmanCourts Law
When it comes to Supreme Court decisions on standing, the hits keep coming. Whether you view “hits” in the Casey Kasem sense or the Joe Louis sense may depend on your perspective. It seems like only yesterday that I posted a Jot about standing, and the Court has not let up—with more big decisions (like Murthy v. Missouri and the mifepristone case) on the way before the current Term draws to a close in June.
William Baude and Samuel Bray’s excellent article is not just about standing. It also is about remedies and other aspects of the judicial role. They recognize, of course, the inextricable relationship between standing and remedies; one element of Article III standing is redressability, after all. And they acknowledge—as others have—legitimate questions about whether current standards “have been cashed out in exactly the right places,” including whether they “should not be in a doctrine called or conceptualized as Article III standing, but instead should be handled by rules about causes of action, equitable jurisdiction, various civil procedure doctrines, and so on.” For Baude and Bray, the guiding principle should be this: “federal courts should be deciding only cases between the proper parties that result in proper relief.” Continue reading "Standing, Still"
May 16, 2024 Robert RosenCorporate Law
Some data show that the recent significant increase in board diversity is less well explained by NASDAQ and CA regulations than by the Black Lives Matter Movement. How did the BLM Movement against police behavior become a call for racial justice that reverberated in corporate boardrooms? More generally why do CEOs, boards, and managers (members of what C. Wright Mills would call the “power elite”) pursue (or want to appear to be pursuing) ESG policies? This article answers such questions by identifying the increasing power of some of the millennial generation — those born between 1981-1996 — as consumers, employees, and investors.
As the authors show “Social issues can become financial problem in short order.” (P. 304.) Their examples are Black Lives Matter, Me-Too and Climate Change. If this article were written today, they might discuss the Governors of Florida or Texas and index funds value-diversifying their funds ( e. g. Catholic faith-based investors), with the consequent loss in the index fund’s concentrated voting power. As the authors admit, “current views on ESG are polarized.” There is conflict within the power elite. The Millennial Corporation: Strong Stakeholders, Weak Managers reveals strategies for getting ESG into corporate action. Continue reading "Conflict within the Power Elites: Intra-Elite Politics and ESG"
May 15, 2024 Nora Freeman EngstromTorts
It’s no secret that, in recent years, third party litigation funding has become something of a lightning rod. The Chamber of Commerce, some in Congress, and various states have sought to rein in a rapidly growing industry. In Opaque Capital and Mass-Tort Financing, Samir D. Parikh calls attention to a newfangled form of litigation financing in mass-tort cases, which, he believes, threatens to distort outcomes and “push victims further away from financial recovery.” (P. 32.) In so doing, Parikh helpfully reminds us that there is still much to be understood about new forms of funding before plunging into reform.
Before turning to Parikh’s argument, it’s helpful to start with a bit of background.Third-party litigation funding (sometimes called TPLF, alternative litigation funding, or ALF), is an umbrella term that refers to various lawsuit funding mechanisms. Three main flavors of funding fall under this broader umbrella. Continue reading "Shining a Light on “Opaque Capital”"
May 14, 2024 Hila KerenContracts
Hanoch Dagan & Catherine L. Fisk,
Independent Contractors and The ABCs of Contract Law, __ Ariz. L. Rev. __ (forthcoming 2024), available at
SSRN (Oct. 23, 2023).
The notorious 1905 Supreme Court decision in Lochner v. New York has become a symbol of a clash between the State’s wish to protect people from inadequate working conditions and the freedom of businesses and workers to use contracts to regulate their relationships. While the protective regulation of the work arena has since become more prevalent and has been approved time and again by a post-Lochner Supreme Court, businesses on the hiring side have never ceased attempting to evade these regulations by using contracts and insisting on their enforcement in the name of the freedom of contact. Is contract law truly the nemesis of fair labor? Must it undermine workers’ minimum legal protections against a long list of evils such as safety hazards, exhaustive hours, meager pay, and discrimination?
Hanoch Dagan and Catherine Fisk’s forthcoming Article, Independent Contractors and The ABCs of Contract Law, answers those questions with a rigorous “no.” The UC Berkeley co-authors have combined their expertise in labor law (Fisk) and contract law (Dagan) to provide a powerful critique of the conventional belief that their respective fields collide. Their collaboration presents a compelling and, I would add, hopeful reconstruction of the relationship between workers’ rights and contracts. Continue reading "On Preventing the Abuse of Contracts"
