May 13, 2024 Kristina NiedringhausLexLibrarianship and Legal Technology
I usually avoid articles about generational differences because they too often veer into the “kids these days” territory. However, from her opening quote and introduction, I suspect that Prof. Schlinck and I have similar feelings about those types of articles. As she writes, “After all, if complaints about the younger generation’s “tyranniz[ing] their teachers” (referencing a quote from Plato, or someone) dates back to ancient Greece, then it may be time to see our students as occupying a glass half full.” (P. 272.) Prof. Schlinck’s article, OK, Zoomer: Teaching Legal Research to Gen Z, provides a brief explanation of generational theory before exploring aspects of Gen Z’s “peer personality.” She then translates those generational traits into pedagogical strategies for optimizing legal research instruction for today’s typical law student. While the suggested techniques are discussed in the context of research instruction, most of them can be extrapolated to other subjects and will be useful for teaching a variety of law school courses.
Prof. Schlinck’s article outlines ten pedagogical tactics that respond to the generational traits of Gen Z. Continue reading "Gen Z in the Legal Research Classroom"
May 10, 2024 Jack BeermannAdministrative Law
Did you ever wonder how it came to be that people suspected of immigration violations are subject to arrest without a judicially issued warrant? That executive branch immigration enforcement officers themselves have the authority to issue enforceable arrest warrants? And further, how it came to be that alleged immigration law violators can be held in prolonged detention without a probable cause hearing before a neutral magistrate of any kind?
When I first encountered this set of related issues, I quickly learned the conventional wisdom, that based on a longstanding tradition and Supreme Court approval, immigration law is an exception to the Fourth Amendment’s requirements that only judicial officers can issue arrest warrants and that in cases of warrantless arrest, the arrestee must be brought before a neutral judicial officer within a reasonable amount of time, normally not to exceed 48 hours. Professor Lindsay Nash’s excellent recent article Inventing Deportation Arrests reveals, through meticulous historical and doctrinal analysis, that the conventional understanding is built on shaky legal and historical ground and is subject to serious abuse. The article is very well written and enlightening on an important subject that I suspect has been somewhat opaque to most scholars of administrative law. Continue reading "The Dubious Validity of the System of Deportation Arrests"
May 9, 2024 Kerri Lynn StoneWork Law
I have always been intrigued by the adjudication of workplace retaliation claims by U.S. courts. The act of retaliation itself, and the myriad ways that it is accomplished, is interesting because it can be subtle, “served cold” (delayed), or barely perceptible. With that in mind, I recommend to you Daiquiri J. Steele’s Rationing Retaliation Claims. In this piece, Professor Steele thoughtfully takes on the issue of the U.S. Supreme Court’s “fear of opening the floodgates” of litigation when it comes to retaliation claims in the employment context. Professor Steele concludes that this fear is “overstated and misplaced,” a conclusion that I think is correct, and is also thoughtfully reached and well researched. This makes her piece a great contribution to the current discourse on this most important topic.
Professor Steele argues persuasively that rather than sounding the alarm when it comes to the uptick in retaliation claims filed by employees, we should be paying heed to them, as they are a sign of intra-organizational conflict. Significantly, Professor Steele notes, these claims are properly surging, because, as her research documents, the practice of retaliation is surging. Moreover, according to Professor Steele, “considerations of judicial economy are particularly misplaced in workplace retaliation cases,” because it is precisely the anti-retaliation statutory mechanisms and provisions that give civil rights statutes any teeth, so to speak, and enable plaintiffs to even think about coming forward to vindicate their rights without being intimidated. Continue reading "An Intelligent Call for a Mandate of Broad Judicial Construction When it Comes to Antiretaliation Claims"
May 8, 2024 Katheleen GuzmanTrusts & Estates
Richard Storrow, Reviving Revival in the Law of Wills, 55 Tex. Tech L. Rev. 501 (2023).
I am embarrassed to admit the time it took for me to realize that words beginning with the Latin prefix “re” generally denote something done over again: move and remove; solve and resolve; cognize and recognize. Relatedly, I’ve sometimes struggled with the concepts of two negatives equaling a positive, or whether “the enemy of my enemy” was (really) my friend.
In Reviving Revival in the Law of Wills, Professor Richard Storrow suffers no such problems. In addressing one of the more confounding doctrines of wills law–determining how to interpret the estate plan of a testator who executes a first will, follows it with a second valid instrument that fully or partially revokes the first, and later yet revokes the second will or codicil by physical act–he couples double-done and double-negative concepts to make and defend the straightforward proposition that revoking a revocation should equal revival. Indeed, by reminding readers of the ambulatory nature of wills – “the anchor grounding testators’ understanding that they can later change the testamentary plans they make today” – he makes and defends a more subtle point: that “the problem with revival doctrine is not so much one of testamentary intent but of testamentary expectation.” The act of revoking the second will, or the codicil, ought to restore the first will because a testator would expect that it does. This should surprise no one who holds to the notion that no will speaks until the death of its maker. But, Prof. Storrow intimates, it might surprise many readers to know that under modern doctrine, wills indeed speak immediately upon execution, perhaps most loudly to revoke any that had been written before. As such, Prof. Storrow’s article simultaneously revisits old doctrines with an eye toward clarifying them while also contemplating new and original theories of will . Continue reading "Double Negatives/Coming Around Again"
May 7, 2024 Nicholson PriceTechnology Law
Artificial intelligence (AI) is moving increasingly rapidly into health care (as indeed into everything else). But it has problems there (as indeed everywhere else!). What’s to be done, in particular, about the deeply embedded biases along racial and other lines that permeate the whole world of health and, as such, are likely to be encoded in AI?
Khiara Bridges gives an answer that seems mild but carries roots of revolution. In Race in the Machine: Racial Disparities in Health and Medical AI, she argues that informed consent is a key lever to pull in fighting these racial disparities. But not because informed consent—at present, mostly a formality, a begrudging nod to autonomy—will fix the problem in its current state. Instead, Bridges argues, informed consent, beefed up and focused on conveying the brutal truth about encoded racial disparities, can form the foundation for revolutionary social changes in health care, health, and beyond. Curious? Read on! Continue reading "Can Informed Consent Solve AI Bias?"
May 6, 2024 Gregory M. SteinProperty
Many of America’s large coastal cities are prospering. Large, industrial rust-belt cities have struggled in recent decades, but some have begun to recover, making up for lost factories and shrinking populations with high-tech jobs that attract younger workers. But what about small to midsize industrial cities – places like Youngstown, Dayton, Trenton, and Harrisburg?
In their new report, Greening America’s Smaller Legacy Cities, Joseph Schilling, Catherine Tumber, and Gabi Velasco make the case that an equitable and sustainable low-carbon future is essential for smaller and midsize legacy cities to thrive. The path to this type of “green regeneration,” they suggest, requires a focus on three areas: (1) climate resilience; (2) environmental justice and equity; and (3) green economic development. Continue reading "A Low-Carbon Future for America’s Smaller Legacy Cities"
May 3, 2024 Eli WaldLegal Profession
One of my favorite “classes” at law school was not a class at all. Once a week, along with dozens of other seemingly busy law students, I would head to Pound Hall to hear eminent international law professor Joseph Weiler lead an informal bible reading group. Two aspects of the reading group were especially intriguing: the analysis of the Old Testament from the perspective of “thinking like a lawyer” and the group’s inclusivity. All were welcomed and no prior knowledge or experience was required. The only thing one was expected to do was read the weekly portion ahead of the gathering. The reading group carried no credit and yet regularly it was standing room only. People attended because it was a fun intellectual exercise. It was a highlight of my days at Harvard Law School.
Daphne Barak-Erez’s new book, Biblical Judgments, reminds me of the old law school reading group. Barak-Erez invites readers to “think about law and legal institutions by a rereading of the Hebrew Bible,” revisiting hidden assumptions underlying, and testing correlations to, contemporary legal systems. (P. 1). The manuscript explores excerpts from the Old Testament to illuminate contemporary challenges confronted by lawyers in six areas of law practice: law and government, judging and judges, human rights and social justice, criminal law, private law, and family and inheritance. My favorite section is Part III, dealing with individual rights and social justice. It tackles topics such as discrimination, harassment, and racism, not shying away from acknowledging the limitations of pursuing social justice back in Old Testament times and—in what is one of the book’s important takeaways—now. Turning to the old text, Barak-Erez effectively mines new, refreshing, and often surprising insights, compelling readers to revisit and rethink their own perspectives and convictions. The analysis of the principle of “an eye for an eye,” (pp. 247-48), is a typical gem, arguing persuasively that retribution is not only a justification for imposing liability but also at the same time a call for proportionality and limiting the scope of liability. Continue reading "Biblical Insights for Lawyers"
May 2, 2024 Anders WalkerLegal History
Edward J. Larson will probably be banned in Florida. His new book, American Inheritance: Liberty and Slavery in the Birth of a Nation, 1765-1795, plunges headfirst into a roiling debate over America’s racist origins, a debate that splashed across Internet platforms five years ago when The New York Times Magazine published The 1619 Project, a collection of hard-hitting essays on America’s anti-Black past. Headed by investigative journalist Nikole Hannah-Jones, the project claimed that the true founding of the United States was 1619, the year the first Africans arrived in British North America, and that the true story of the United States was – and remains – one of relentless racism against Black people. Even the Revolution, argued Hannah-Jones, was motivated by a racist desire to preserve slavery.
Hannah-Jones received mixed reviews for her polemic from historians, but she captivated progressive audiences with a national speaking tour, a Hulu documentary, and a “1619 Curriculum” for public schools. Conservatives countered with their own “1776 Project” (sponsored by the Trump White House) and a Senate bill aimed at “Saving American History” sponsored by Tom Cotton, Marsha Blackburn, and others. “The 1619 Project is based on false narrative,” declared Senator Blackburn, “and a stack of lies about our country.”
Into this “partisan minefield,” as he puts it, steps Larson, a Pulitzer Prize-winning historian and law professor who takes up many of the points made by The 1619 Project and elaborates on them by deftly weaving together an array of familiar secondary sources and not-so-familiar primary ones. Out of this comes a frank look at just how prevalent racial prejudice was in America during the late 18th Century, both North and South. For example, Larson provides us with a startling look at the racial views of Benjamin Franklin, a Framer who did not own enslaved people but nevertheless imagined that America would be better off without Blacks. “Why increase Sons of Africa,” complained Franklin, “by Planting them in America [?]” Continue reading "Original Glue: The Role of Race at America’s Founding"
May 1, 2024 Andrew HalpinJurisprudence
The common practice of teaching law students the rules of precedent is a misguided one, if we take seriously what María Beatriz Arriagada has to say in her article in a recent issue of Ratio Juris. In “The Two Faces of Precedent: A Hohfeldian Look,” Arriagada offers a radical alternative to the conventional portrayal of precedent as a system of regulative rules.
Arriagada’s article stimulates and provokes across a range of issues. Commencing with a preliminary reflection on the nature of analytical legal philosophy/theory (Pp. 25-26), she offers a number of insights to challenge assumptions made on the way the practice of binding precedent works, in developing her own structural analysis of precedent. At the same time, Arriagada draws on a sophisticated understanding of the Hohfeldian analytical scheme in her efforts to bring precision to a detailed analysis of the actual workings of precedent. Continue reading "The Powers of Precedent"
Apr 30, 2024 Steve GoldLexEnvironmental Law
When young people accusingly complain that my generation unfairly saddled them with the problem of climate change, I like to remind them that my contemporaries and immediate forebears advocated for, enacted, and implemented–indeed, invented–modern environmental law in this country. However true it is that we failed to protect our heirs from climate change, we are bequeathing them a world that is demonstrably cleaner and healthier than it would have been absent the spate of environmental lawmaking that began in 1970.
In the articles reviewed here, two lions of the founding era, each writing with a younger co-author, remind us that the success of U.S. environmental law remains incomplete. Climate change, these articles point out, is not the only environmental problem of global scale and massive if unpredictable consequence–nor the only problem that environmental law has been unable to solve. Robert Adler and Carina Wells take on the law’s failure to deal with pollution from plastics. Mark Nevitt and Robert Percival tackle the law’s feeble response to PFAS (per- and poly- fluoroalkylated substances). We who once pondered the limits to growth must now confront the limits to law. Or at least the limits to existing U.S. environmental laws. Continue reading "The Limits to Law(s)"
