Apr 2, 2024 Shelby D. GreenProperty
Chief Justice John Marshall’s opinion in Johnson v. M’Intosh is often taken as the source of some foundational principles in property law. Indeed, it is often the first case, alternating with the fox and hunter, appearing in many textbooks.
The essential points of the case are that discovery is a basis for acquiring property and that Indian tribes held only the right of occupancy of their lands, which could be extinguished at any time at the leisure of the federal government, but in no case did they hold the power to alienate any interest. Professor Sheila Simon, in Johnson v. M’Intosh: 200 Years of Racism that Runs with the Land, offers some compelling reasons why we should not celebrate either the case or Marshall. Continue reading "Contriving a Controversy: The Value of Land in Johnson v. M’Intosh"
Apr 1, 2024 Jedidiah KronckeLegal History
There is an oddity to the place of constitutional law in the modern American legal academy. Law faculties invariably have multiple scholars devoted to its study, it is considered a core curricular course, and, yet most law graduates will never directly practice it any form. There have been debates about its pedagogical merits—revolving around assumptions that the Constitution is not just the foundational document structuring our legal system but has also always served as its deepest reservoir for exploring our most critical collective challenges. As such, constitutional scholarship sits atop an implicit hierarchy of legal inquiry shaping the litigation that putatively confronts, and resolves, the most pressing issues of our day. In turn, the Supreme Court is worthy of center stage in the social production of legal intellectual prestige.
In his mid-career opus, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, Aziz Rana attempts to deconstruct this and other such elevations of modern constitutionalism in American society. Most fundamentally, he seeks to denaturalize this state of “constitutional veneration” in which the legal academy is but one facet of the broader American embrace of “creedal constitutionalism.” The near deification of constitutional law, the Supreme Court, and the Constitution as core elements of American identity, Rana argues, is a relative novelty in American history. Every element of our current reverential preoccupation with the Constitution, whether in the legal academy or in our larger social politics, simply did not exist for most of the nation’s collective history. Continue reading "America’s Constitutional Self-Sabotage: Escaping the Constraints of Imperial Accommodation"
Mar 29, 2024 Mark KendeConstitutional Law
During the hagiography surrounding the Bicentennial of the U.S. Constitution, Justice Thurgood Marshall dissented. For Marshall, the Constitution could only be celebrated as “a living document.” The original document, and “the government it devised,” was “defective from the start.” Marshall’s words were literally as well as figuratively true, in his view: the document’s flaws began with its preamble and its woefully underinclusive understanding of “We the People.”
Joy Milligan and Bertrall Ross’s recent article, We (Who Are Not) the People: Diversifying Constitutional Interpretation Regarding Fundamental Rights, proceeds from the same premise. “We were never the people,” the article begins arrestingly. Women, minorities, Native Americans, and slaves were irrelevant. The Constitution has procedural and substantive deficiencies, which are “inherent in the document as well as the institutions and rights it creates,” a problem that constitutional theorists and interpreters still have not dealt with sufficiently. Continue reading "Diversifying Constitutional Interpretation Regarding Fundamental Rights"
Mar 28, 2024 Christopher J. SprigmanIntellectual Property Law
Oren Bracha,
The Work of Copyright in the Age of Machine Reproduction, available at
SSRN (Sept. 24, 2023).
In our modern communication environment, conventional wisdom very swiftly captures and narrows our channels of thought. This is due in no small part to the unceasing production of commentary, which means that every perspective on any important new issue is made available and explored (to use the digital age’s most lamentable neologism) in “real time.”
That is true already of the copyright debates around AI. In particular, it has already become conventional wisdom, and the starting point for discussion, that the use of datasets containing copyrighted works for purposes of training AI models involves reproduction of unauthorized copies of those works, and so is a prima facie infringement. The lawfulness of AI training, it is then said, can be established only by determining whether that activity constitutes fair use. Continue reading "Upsetting Conventional Wisdom of Copyright Scholarship in the Age of AI"
Mar 27, 2024 Mathilde CohenInternational & Comparative Law
The colonial origins of public international law are increasingly front and center of scholarly and political discussions in the field. In her insightful essay, Anne-Charlotte Martineau suggests that the supposed “private” nature of private international law also derives, in part, from extractive European colonialism. More often known as conflict of laws in the common law world, private international law governs the resolution of transnational disputes, focusing on issues such as jurisdiction, choice of law, and enforcement of judgments. Martineau recounts that from the middle of the sixteenth century, scholars of the so-called School of Salamanca—the intellectual movement led by Francisco de Vitoria that developed at the university of Salamanca in Spain—were mobilized to legitimize and facilitate enslavement and other violent practices by reconceptualizing the law of marriage.
Martineau’s piece is published as part of a symposium on the interrelation of the public and the private in international law, inspired by the work of late Canadian international law scholar Karen Knop. Martineau’s contribution constitutes a manifesto in its own right, calling for comparative and international law practitioners and scholars “to redress the invisibility of women in the history of international law” from an intersectional perspective. She builds upon Knop’s claim that “recuperating private international law as a lost side of international law can open up counter-disciplinary research on gender in the history of international law” to revisit a debate that arose in the 1540s. Jesuit missionaries in Brazil asked jurists and theologians associated with the School of Salamanca back in Europe to assess the validity of marriages among colonized peoples such as the Tupi people and among enslaved persons. The motivation was initially religious—if these unions were illegitimate under canon law, for example because they were consanguineous, polygamous, or temporary, spouses could not be baptized and converted to Catholicism. In the 1580s, the impetus became primarily economic and biopolitical—as sugar production prospered, European colonizers demanded an ever-growing workforce to exploit. The issue became whether enslaved people kidnapped from Angola and Indigenous people captured in the hinterland (sertão) to work on plantations could enter into second marriages given that they had been forcibly separated from their consorts back home. Continue reading "Is Private International Law Really Private? Gender and Colonialism in the History of Conflict of Laws"
Mar 26, 2024 Cynthia AlkonLexDispute Resolution
During the pandemic, courts in the United States, and around the world, experimented with online proceedings in both civil and criminal cases. The increasing use of online processes during this time focused attention on how moving away from in-person proceedings can change and alter our legal system and continues to raise difficult questions. Are online proceedings a good thing for justice? Can using more technology in our courts help to improve how our legal system works? Could more online proceedings make our courts more accessible and actually improve justice? These are key questions for anyone looking at dispute system design and how our criminal and civil court systems work. Mentovich, Prescott, and Rabinovich-Einy offer an intriguing look into the possibility of online processes to improve access to justice and legitimacy by examining parties’ perception of online processes in traffic cases.
Why traffic cases? Most people are un-represented in traffic cases and they are seen as minor. However, the authors observe that traffic cases can provide an “important insight into the consequences of the shift online for court legitimacy” (P. 191) for three reasons. First, traffic cases are a majority of online proceedings and they use written asynchronous communication, not video or other real-time interactions. Second, traffic cases are a majority of all court cases in the United States. Finally, these cases are cases of individuals directly confronting the government. What happens in traffic court impacts a significant number of people despite the low-stakes. Therefore, examining how traffic court participants who are using online processes perceive the process can give valuable insights. The authors conducted an empirical study of traffic court participants from online traffic proceedings between December 2019 and August 2020. The survey asked participants about their experience both with the online court proceeding and the legal system in general. Continue reading "Can Online Proceedings Bring Better Access to Justice?"
Mar 25, 2024 Reid WeisbordTrusts & Estates
David Horton,
Probate Standing, 122
Mich. L. Rev. __ (forthcoming 2024), availible at
SSRN (August 7, 2023).
Probate cases often arise from a complicated web of relationships between the decedent and family members, friends, caretakers, fiduciaries, and other parties. When the facts of a given case are especially complex, it is sometimes helpful to draw a visual diagram of the various relationships to better understand the dispute’s major fault lines: Whose interests are aligned? Whose interests are adverse? Which parties, if any, represent the interests of non-parties? Which parties are relevant to the dispute but did not enter an appearance? And finally, did any party enter an appearance but lack a legally sufficient connection to the dispute? In Probate Standing, Professor David Horton takes a deep dive into the latter question by expertly examining the important, though often overlooked, gatekeeping doctrine of probate standing. This Article breaks new ground, first, by identifying incoherent branches of the standing doctrine that undermine probate law’s bedrock policy of honoring testamentary intent and, second, by proposing sensible, minimally invasive reforms to clarify the standing rules in probate litigation.
The Article begins with a historical survey of Anglo-American common law from which Horton distills two alternative theories of probate standing: The “property theory” confers standing on anyone who can demonstrate a pecuniary stake in the probate matter. The “status theory,” in contrast, confers probate standing on intestate heirs to contest a decedent’s will. Horton explains that both theories are flawed. Under the property theory, for instance, an undue influencer can unfairly deprive a testator’s intestate heirs of standing to contest the will’s validity by procuring a series of unduly influenced wills because the contestant would have to (but might be unable to) contest every serial will to acquire a pecuniary interest as an intestate heir. Conversely, the status theory grants any intestate heir standing to contest a will’s validity even if the testator devised more than an intestate share to the heir, thus creating a judicial forum for estate litigation potentially motivated by emotion or revenge rather than by rational economic self-interest. Continue reading "Clarifying the Doctrine of Probate Standing"
Mar 22, 2024 Jonathan SimonCriminal Law
Katherine Becket, Monica Bell, and Forrest Stuart,
Beyond Harm Reduction Policing, in Drug Law Enforcement, Policing and Harm Reduction, (Mathew Bacon & Jack Spicer eds., 2022).
This short book chapter by three of America’s leading scholars of law, policing, and social inequality, Katherine Beckett, Monica Bell, and Forrest Stuart, may be easy to miss because of its publication in a specialized edited volume on drug policy, policing, and harm reduction, rather than the prominent law or sociology journals in which these authors frequently publish. That would be a shame however (thus this jot), because it packs some crucial insights about our current conjuncture in criminal justice reform in the United States, with major implications for how we consider the future.
First, it is a helpful corrective to the recent revisionist accounts of the war on drugs. These revisionist accounts have challenged what they take to be an exaggerated estimation of the significance of the war on drugs in producing mass incarceration by some of the most influential narratives on the latter. (I’m thinking here in particularly of John Pfaff’s very important book Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017) and its critique of Michelle Alexander’s a The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).) Pfaff corrects the shorthand logic that equates mass incarceration with the war on drugs by demonstrating that most drug sentences are short compared to those for violent or serious property crimes, and that sentences for drug crimes, especially possession, only accounts for a fraction of the growth in incarceration we experienced during the era of “mass incarceration” (the end of which we are still awaiting).
Beyond Harm Reduction Policing however is an important corrective to that corrective. It reminds us that regardless of its contribution to the overall incarceration rate, a punitive response to drug crimes beginning in the 1980s was one of the defining features of the punitive turn of the late 20th century, and one that had a particularly major impact on communities of color. Drug arrests, for example, grew more than fourfold between 1980 and 2006 (when they peaked). Such arrests did not mean that someone would end up in a cage. The growth in supervisory sentences was far greater, touching more than a million people a year at its peak compared with 400,000 with a sentence of incarceration in jail or prison. Nevertheless, each one of these sentences represented an exposure to physical control (and existential threat) by police officers, and at least a short exposure to jail in most cases. Continue reading "Don’t Dismiss the War On Drugs Too Fast"
Mar 21, 2024 Felipe JiménezJurisprudence
Argentina has a long tradition of excellent legal philosophers, including Carlos S. Nino, Carlos Alchourrón, and Eugenio Bulygin. Pablo Rapetti is part of a younger generation of Argentine legal philosophers that is continuing this rich tradition. This is one of his first scholarly works available in English.
In this paper, Rapetti confronts Ronald Dworkin’s Anti-Archimedeanism and its application to general jurisprudence. As Rapetti explains, Dworkin’s Anti-Archimedeanism is a rejection of the distinction between first-order normative language and second-order, neutral meta-languages we could use to explore the first-order language theoretically. In simple terms, it’s impossible to go “meta:” any debate about ethics, is a first-order moral debate. All metaethical theories occupy the same space as first-order moral theories. Continue reading "In Defense of Archimedes"
Mar 20, 2024 Trudo LemmensHealth Law
Canada’s euthanasia law and practice—which the federal parliament termed “medical assistance in dying,” resulting in the awkward acronym MAiD—continues to be a dominant theme in Canadian and international health law and bioethics scholarship. If MAiD had remained the “exceptional practice” the Canadian Supreme Court originally envisaged, the attention it receives would be perplexing. But ongoing legal expansion—mental health was scheduled to become a basis for MAiD in March 2024 but Parliament suspended this introduction at the last minute until at least 2027—and the staggering increase in the number of people who have died with a health care providers’ lethal injection, explain this attention. In less than 7 years, about 45,000 Canadians—13,241 in 2022 alone—have died by MAiD, more than 4% of all deaths. Quebec, the second largest province, has become the jurisdiction with the highest euthanasia practice in the world, with around 7% of people dying by MAID.
International parliamentary committees, policy makers, and commentators are increasingly paying attention. A new interdisciplinary volume in Springer’s International Library of Bioethics Series, Medical Assistance in Dying (MAiD) in Canada: Key Multidisciplinary Perspectives, edited by Jaro Kotalik and David W. Shannon, should help inform any jurisdiction contemplating some form of legalization. With 31 chapters by experts in law, medicine, social science, philosophy, and bioethics, as well as practitioners and community advocates, the book provides unique, explicitly critical perspectives on various aspects of Canadian MAiD law, policy, and practice. Continue reading "Taking the Lid Off Canada’s MAID Law and Practice"
