Out with the Old (Oaths): Lawyer Promises for a New Era

Lauren E. Bartlett, Human Rights and Lawyer’s Oaths, 37 Geo. J. of Legal Ethics 411 (2023).

What should new lawyers be required to promise, as a condition of entry into the legal profession? This inquiry raises existential questions about what it means to practice law. It can also prompt questions about the appropriate reach of lawyer regulation. Lawyer oaths—which are used to elicit promises from new lawyers in North America—should not be seen as merely symbolic and ceremonial (although they are certainly both these things). Lawyer oaths also intersect with core legal ethics questions. Thus, what is included in these oaths deserves our attention.

In Human Rights and Lawyer’s Oaths, Lauren Bartlett takes a deep dive into lawyer oaths, resulting in a comprehensive historical account of lawyer oaths in the United States, as well as a novel proposal for a way forward. In short, Bartlett contends that lawyer oaths can be “useful as a tool to build a dignified, respectful, and inclusive legal profession” but in order to function as such, “the unremarkable, irrelevant, inappropriate, discriminatory, and obsolete language in lawyer’s oaths must be removed and replaced by ethical guidance and aspiration” (P. 415). Bartlett points to human rights norms, specifically, as an optimal touchpoint for better aligning lawyer oaths with our current times. One potential benefit, according to Bartlett, is that human rights norms can point lawyers to more aspirational ethical and moral ideals than can be found in professional conduct codes, which tend to focus on minimum standards. Insofar as human rights norms transcend country borders and legal practice is increasingly globalized, Bartlett also argues that “legal ethics—and lawyer’s oaths in particular—should not stand out as separate from human rights”  (P. 437). Continue reading "Out with the Old (Oaths): Lawyer Promises for a New Era"

Rethinking Nature’s Rights

Mauricio Guim & Michael A. Livermore, Where Nature’s Rights Go Wrong, 107 Va.. L. Rev. 1347 (2021).

In When Nature’s Rights Go Wrong, Professors Mauricio Guim and Michael Livermore offer much needed analytical clarity to a significant, yet still understudied, field: rights of nature. After centuries of adopting a predominantly human-centric perspective, a more biocentric outlook is now coming to the fore.

Much like property rights, nature’s rights award control over clusters of natural resources. However, unlike traditional property rights, in the case of nature’s rights—as the name suggests—the right holders are non-human. What’s more, they tend to attach to a broader and more general natural entity, such as an ecosystem or a class of species, rather than a more crisply defined right-holder.

This carries profound implications for nature’s rights function and ability to achieve their environmental or climate-related goals. Analyzing nature’s rights is therefore especially important at present, as mounting evidence suggests our current legal mechanisms are insufficient to tackle the climate crisis. Continue reading "Rethinking Nature’s Rights"

Can We Build What We Need to Decarbonize Our Economy?

J.B. Ruhl & James E. Salzman, The Greens’ Dilemma: Building Tomorrow’s Climate Infrastructure Today, 73 Emory L.J. 1 (2023).

The Inflation Reduction Act (IRA), enacted by Congress in 2022, is by far the most significant piece of climate legislation enacted by Congress, despite (or perhaps because of) its name. The IRA provides billions of dollars of tax credits, subsidies, grants, and other support for the development and deployment of the technology we need to decarbonize our economy: electric vehicles, electric vehicle chargers, industrial-scale renewable energy, transmission lines to connect renewable energy sources to consumers, carbon capture technologies, and much, much more. Models indicate that the IRA will result in substantial progress towards decarbonizing the American economy. And the investment in decarbonization technology will not just have direct climate benefits. By creating economic investments that depend on decarbonization progress, the IRA can help build future political support for more progress on decarbonization down the road.

But while money is necessary to build all of this infrastructure that allows for decarbonization, it is not sufficient. The first three parts of Ruhl and Salzman’s The Green’s Dilemma: Building Tomorro’s Climate Infrastructure do a nice job of providing an overview of why. In the United States, constructing large-scale infrastructure–such as transmission lines or large renewable energy facilities, or obtaining the minerals we need for electric vehicle batteries–requires permits as well. Permits from federal, state, and local governments. Permits that can take months or years to obtain, and that can be subject to litigation that adds time and uncertainty. And ironically, many of those permits come from traditional environmental law: permits under the Clean Water Act or the Endangered Species Act, for instance. And for federal permits under other, non-environmental laws, the federal government is required to undertake environmental review pursuant to the National Environmental Policy Act (NEPA) before issuing the permit. And the delays caused by permitting are not just an issue of adding cost (and therefore reducing the climate benefits the US obtains for each dollar spent), though this is important. Perhaps even more important from the perspective of climate policy is that delay in implementation of decarbonization technology and infrastructure means we spend more time emitting more carbon into the atmosphere–when climate policy as it stands is a race against time. Continue reading "Can We Build What We Need to Decarbonize Our Economy?"

The Invention of the Abortionist

In the aftermath of Dobbs v. Jackson Women’s Health Organization, abortion is once again a crime in large swaths of the United States. Abortion opponents have taken a particularly keen interest in criminally punishing physicians and other abortion providers. Nicholas Syrett’s masterful study of the nation’s most famous “abortionist,” Madame Restell, is at once the story of a significant and poorly understood woman and an illuminating origin story of criminal abortion laws. Restell, née Anna Lohman, was born in England in 1812 immigrated to the United States, and became a single mother before at some point gaining medical training and reemerging as Madame Restell, an unapologetic and famous “female physician.”

Syrett offers a compelling portrait of Restell and the wide range of patients she served. The Trials of Madame Restell also tells the story of the reporters, anti-vice activists, and prosecutors who invented “Restell,” the abortionist who embodied a form of moral decay that her critics called “Restellism.” (P. 2, 58.) Syrett’s book brings to life the world of nineteenth-century New York. Yet despite—or perhaps because—Syrett’s story is deeply rooted within a particular time and place, The Trials of Madame Restell feels all too relevant to post-Dobbs America. Syrett captures the complexity of both pregnancy and its medical treatment, as well as the way that politicians, social movements, and prosecutors deliberately blind themselves to this nuance. Continue reading "The Invention of the Abortionist"

The Moral Practice Picture of Law

Scott Hershovitz, Law is a Moral Practice (2023).

Scott Hershovitz’s Law is a Moral Practice is an important and compelling contribution to general jurisprudence. It is also a delight to read, written in Hershovitz’s characteristically breezy and playful style, with anecdotes and examples throughout that illuminate and animate his picture of law in memorable ways. Readers will likely appreciate Hershovitz’s light argumentative touch. He encourages us to try out seeing law his way rather than insisting that law must be seen this way or that it is the only reasonable or useful way to see law.

On the moral practice picture—which is what Hershovitz invites us to call the theory of law he sets out in Law is a Moral Practice—law and morality are not separate normative systems. The rights and duties debated in court are moral rights and duties. It is thus the province of courts to answer moral questions. (P. 183.) And legal reasoning is a special kind of moral reasoning. Continue reading "The Moral Practice Picture of Law"

The Harm of “Nothing Burgers”

Kelley Fong, Investigating Families: Motherhood in the Shadow of Child Protective Services(2023).

Child protective services (CPS) agencies subject a wide scope of families to investigation, and the vast majority do not lead to family separations or family court cases. A 2017 study, for instance, showing that 37% of all children and 53% of Black children are the subject of CPS investigations in their childhoods, has now been cited hundreds of times. Kelley Fong’s new book, Investigating Families, is based on the months she spent embedded with CPS investigators responding to allegations that parents abused or (more often) neglected their children, and the interviews she conducted with both investigators and the parents who were investigated over the course of multiple years (Methodological Appendix, Pp. 213-40). Fong, a sociologist, found staff with largely good intentions thrust into an adversarial posture with families by a system that is astonishingly broad, harms the families it nominally seeks to help, and intertwines social services with social control of poor families.

Fong observes that a large number of CPS investigations involve situations where nobody thinks there is any real risk to child safety, especially not the CPS investigators at the center of the system. One investigator sees a new case as “a nothing burger” (P. 77). Another reflects on the need for schools to communicate better with families and not call CPS (P. 83). Another complains “some of the stuff we get is just ridiculous” (P. 86). Another “wasn’t particularly concerned” about new allegations (P. 133). A CPS administrator complains about the mass of unnecessary reports (Pp. 84-85). Indeed, nationally, CPS agencies “substantiate” (the term for when a CPS agency concludes after investigation that a parent neglected or abused a child) only 17.8% of allegations they respond to. Continue reading "The Harm of “Nothing Burgers”"

Free Riding as a Pro-Defendant Impulse

Michael Grynberg, Trademark Free Riders, 39 Berkeley Tech. L.J. __ (forthcoming, 2024), available on SSRN.

American trademark scholars have almost uniformly decried the role of free riding in calibrating the scope of trademark rights. They have argued that the language of “reaping where you have not sown”—to use the famous, but doctrinally discredited, agricultural metaphor of INS v. Associated Press in 1918—distorts trademark law and expands protection beyond that necessary to ensure consumers receive accurate information about the source of goods in the marketplace. Yet, there is a (relatively well-grounded) suspicion that, despite this almost universal scholarly condemnation, the impulse to protect mark owners against free riding remains a resilient force when courts decide trademark cases. If this suspicion is indeed sound, arguments for less expansive trademark rights that rest on the rejection of free riding as a relevant variable are destined to fail.

In Trademark Free Riders, Mike Grynberg brilliantly and persuasively outlines (with real panache) an alternative approach by which to advocate for less robust trademark rights. He assumes arguendo the reality of judicial attention to (and distaste for) free riding and articulates an approach to trademark law that uses the free riding of trademark owners to justify a less expansive scope of protection. That is to say, what happens when trademark owners reap where they have not sown? If courts are in fact sensitive to free-riding as a relevant consideration in allocating rights, might they not confine the scope of right when evidence of trademark owner free-riding is presented to them? Continue reading "Free Riding as a Pro-Defendant Impulse"

Criminal Law Meets Estates Law: Incarceration and Inheritance

Brittany L. Deitch, Estate to State: Pay-To-Stay Statutes and the Problematic Seizure of Inherited Property, 95 Univ. of Colo. L. Rev. __ (forthcoming 2024), available at SSRN (Mar. 20, 2023).

Criminal law scholars and estates and trusts scholars do not usually travel in similar circles. They do not typically attend the same conferences or read each other’s work. With the exception of the slayer rule, criminal law might even seem irrelevant to estates and trusts law. Yet, Brittany Deitch’s eye-opening article, Estate to State: Pay-To-Stay Statutes and the Problematic Seizure of Inherited Property, illustrates how criminal law and inheritance law intersect to deny currently and formerly incarcerated individuals the ability to inherit, thereby magnifying the racial and economic inequalities created by either criminal law or inheritance law alone.

Deitch’s article exposes the injustices of pay-to-stay laws—statutes that allow the government to seek reimbursement from currently or formerly incarcerated individuals for incarceration-related costs, ranging from medical care and transportation to room and board. Although forty-seven states have some form of pay-to-stay requirement, Deitch focuses on states that expressly allow the government to recover these costs from an inheritance, or that are silent on whether the government may seize inherited assets. In these states, the government may seize an incarcerated (or formerly incarcerated) person’s inheritance to recoup the costs it expended in connection with the distributee’s incarceration. Deitch argues that seizure of an inheritance in these cases infringes the decedent’s testamentary freedom and undermines intestacy law’s goal of preventing escheat. As she explains, a testator would not want assets intended for the benefit of their currently or formerly incarcerated family member or loved one to go to the state. When the decedent is intestate, she observes, seizure of property that would otherwise pass to heirs circumvents intestacy law’s aim of averting escheat whenever possible. Continue reading "Criminal Law Meets Estates Law: Incarceration and Inheritance"

Rationing Healthcare Innovations

Leonard Fleck is a well-known philosopher and ethicist who has written extensively on various ethical issues in health care, including healthcare rationing. Although he writes from a moral perspective, the topic is also relevant to health lawyers. Healthcare rationing, interpreted as the denial or delay of necessary medical care for non-medical reasons, raises serious issues of equal access to health care as a human right, informed consent and shared decision-making (SDM), well-known concepts in contemporary legal doctrine. Long waiting times and delays in medical treatment, substantial co-payments, or restrictions in health insurance access can be considered a form of de facto rationing, challenging the right to health care as a human right.

Fleck’s Precision Medicine and Distributive Justice: Wicked Problems for Democratic Deliberation discusses healthcare rationing in the context of new pharmaceutical innovations, including  precision medicine, targeted cancer therapies and immunotherapies. These are highly promising but costly drugs (ranging from $100,000 to $475,000 in total costs per treatment) mainly used with metastatic cancer, a terminal illness. Most patients with access to these drugs will gain only a few extra weeks or months of life (P. 11.) Is society willing to pay for each patient’s life-prolonging targeted therapy with marginal gains at general public expense? Continue reading "Rationing Healthcare Innovations"

The Perpetual Foreigners in Today’s America: How Colorblind Nationalism Produces Unequal Immigrants and Citizens

Ming Hsu Chen, Colorblind Nationalism and the Limits of Citizenship, 44 Cardozo L. Rev. 945 (2023), available at SSRN (Aug. 20, 2022).

Migrants have been crossing into U.S. borders for years in search of safety and employment. Since last year, the governors of Texas and Florida have offered “free rides” and “free flights” to send them to other cities, claiming that those who support welcoming immigrant policies should share the responsibility of caring for them. As Gaza faces a humanitarian catastrophe, former President Trump, whose Muslim ban was upheld by the Supreme Court in 20181 and overturned by President Biden in 2021, has recently vowed to expand the Muslim ban and bar Gaza refugees if he wins the presidency in 2024. The fate of the Deferred Action for Childhood Arrivals program will likely be decided for a third time by the Supreme Court, this time by a Court with a conservative super majority. As the U.S. moves into a post-pandemic phase, anti-Asian racism and violence continue to persist and spread.

Against this backdrop, many commentators blame white nationalism for xenophobia against Asians, Latinx, and Muslims, and see the granting of legal status to undocumented migrants and turning noncitizens into citizens as the key to their equality. Ming Hsu Chen, who recognized the paramount importance of access to formal citizenship for equality in her 2020 book Pursuing Citizenship in the Enforcement Era, finds this an insufficient explanation and solution to inequality. In Colorblind Nationalism and the Limits of Citizenship, she goes on to argue for the decentering of formal citizenship in the pursuit of equality, advocating for a new imagination of the relationship between race, citizenship, and membership that recognizes multi-layered membership. Bridging critical race theorists’ critique of colorblindness and critical immigration scholars’ critique of nationalism, she identifies the pivotal role of colorblind nationalism in producing inequality and shows how it “limits formal citizenship as an antidote for inequality.” (P. 950.) Continue reading "The Perpetual Foreigners in Today’s America: How Colorblind Nationalism Produces Unequal Immigrants and Citizens"

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