Jan 23, 2024 André den ExterHealth Law
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"
Jan 22, 2024 Chao-Ju ChenEquality
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 2018 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"
Jan 19, 2024 Lyrissa B. LidskyConstitutional Law
Keith Whittington’s new article, Professorial Speech, The First Amendment, and Legislative Restrictions on Classroom Discussions, is a timely response to the growing body of “anti-woke/anti-Critical Race Theory” legislation and legislative proposals that aim to drive certain types of discussions of race, gender, and other controversial topics out of state university classrooms. The clarity of Whittington’s style makes complex doctrines easy to understand for educated, non-expert readers, and his careful extrapolation from existing First Amendment doctrines and principles fills an important gap in the law. Overall, the article meets the high bar it sets for itself by staking out “a new argument for protecting from legislative interference how faculty at state universities teach their courses.”
The article has five important components. First, Whittington identifies the threat recent legislative proposals pose to academic freedom, especially to freedom in state university classrooms. For readers well-versed in an area of study, the “backdrop” section of an article is usually its least valuable contribution. Here, however, the article’s “backdrop” section makes an important contribution by demonstrating the scope and scale of current legislative efforts to suppress curricular speech in state universities. Whittington is not exaggerating when he calls these new proposals an “unprecedented wave of legislative proposals aimed at curtailing teaching and discussing controversial topics relating to race and gender in state university classrooms.” It is impossible to read this section without being struck by the sheer number of laws proposed and passed to drive certain ideas out of college classrooms. These laws are the product of concerted efforts to “restrict[ ] the topics and perspectives that a professor may discuss or advance while performing his or her instructional duties.” These concerted efforts have already induced universities “to curtail programmatic and instructional activities that might incense state politicians.” And this is just the beginning. Continue reading "The First Amendment and Professorial Classroom Speech"
Jan 18, 2024 Elena LarrauriCriminal Law
The paper I am reviewing is noticeable because it focuses on “open prisons.” Generally, prison scholars tend to speak and write about “prisons,” and when comparing among countries, the comparison tends to be limited to imprisonment rates. In some rare cases the sentence length is also discussed. In their article Contrasts in freedom: Comparing the experiences of imprisonment in open and closed prisons in England and Wales and Norway, authors Kristian Mjåland, Julie Laursen, Anna Schliehe and Simon Larmour expand the discussion by addressing the type of prisons. I welcome this opportunity to talk about open prisons.
The paper sets out to determine if open and closed prisons share the same basic characteristics, or if, on the contrary, one could defend that open prisons are experienced as less harmful. In order to answer this question, the paper uses 728 interviews to find out prisoners’ subjective experience of being imprisoned in Norway or England and Wales in an open or closed prison. The paper also explores the use and functions of open prisons in both countries. Continue reading "Open Prisons: For a Less Harmful Prison"
Jan 17, 2024 Linda S. MullenixCourts Law
Bryan Lammon,
Manufactured Finality, 69
Vill. L. Rev. ___ (forthcoming, 2024), available at
SSRN (Sept. 14, 2023).
In the great restructuring of first year civil procedure courses during the 1990s, one of many topics to fall victim to civil procedure triage was the final judgment rule and doctrines of appellate jurisdiction. Historically, the Supreme Court was highly engaged with the final judgment rule. During the 1980s the Court — seemingly obsessed with the collateral order doctrine — issued new decisions nearly every year concerning whether various court orders fell within this judicially created exception to the final judgment rule. But then the guns of the collateral order doctrine fell silent. For nearly four decades the Court did not consider the rule and its exceptions until Microsoft Corp. v. Baker in 2017.
In Manufacturing Finality, Bryan Lammon resuscitates academic discussion of the final judgment rule and the new inroads on interlocutory appeals presented by Microsoft. Making passing reference to statutory exceptions in Rule 54(b) and 28 U.S.C. § 1292(b) and no mention of the collateral order doctrine or mandamus, Lammon focuses on the finality that the Microsoft plaintiffs unsuccessfully sought to manufacture, which Lammon characterizes as the new “hot topic” in procedure. Continue reading "Not the Final Word or Judgment on Manufactured Finality"
Jan 16, 2024 Aditi BagchiContracts
In her beautifully written article, Borrowing and Belonging, Abbye Atkinson argues that, because consumption is central to dignity in American culture, bankruptcy rules should be altered to promote the restoration of debtors’ dignity. At present, she argues, the rules of bankruptcy strip debtors of dignity even as they purport to offer a “fresh start”. (P. 1369.)
In the first part of her article, Professor Atkinson reviews the literature arguing that consumption has a distinctive cultural significance in American life. It is key to full participation in a common way of life, and is perceived as essential to full citizenship. In the next part, Atkinson describes the present bankruptcy regime as requiring an exchange of dignity for relief, a trade that she argues is inconsistent with the idea of consumption-as-dignity that seems to fuel the credit economy to begin with. She points to rules that mandate publicity regarding a debtor’s finances and rules that effectively restrict access to future credit. Finally, she argues for an alternative model of personal bankruptcy that “disentangles relief from ostracism”. (P. 1378.) Continue reading "Reforming Bankruptcy to Promote Debtor Agency"
Jan 15, 2024 Mila SohoniAdministrative Law
Adam Crews,
The Executive Power of the Federal Courts, 56
Ariz. St. L.J. __ (forthcoming 2024), available at
SSRN (September 5, 2023).
As I write this Jot, it’s entry-level hiring season. Scores of exciting candidates are crisscrossing the country to present new papers, eat dinners, and tour campuses and neighborhoods. Over the years, I have come to observe that there are a few things that a candidate can reliably bet will occur during a job talk at my law school. Someone will point out your paper’s relevance to some completely unexpected area of law, or vice versa. Someone’s phone will ring while you are speaking—to the rest of the faculty’s collective mortification—and then be immediately, furiously silenced. And—if you are talking about a subject in constitutional law, administrative law, or federal courts—someone will probably ask you something about how your paper relates to INS v. Chadha.
Chadha is a staple touchpoint because it tees up a fundamental definitional conundrum that all three fields grapple with in various ways: what counts as executive power, or judicial power, or legislative power, in our system of government? If our legal system is one of separation of powers, it would seem to be important to know which is which. Yet, in the fashion of an ancient parable, the opinions in Chadha reach different answers concerning how to characterize the particular type of action at issue in that case. To the Court, an action by a house of Congress to veto a suspension of deportation seemed “essentially legislative in purpose and effect,” and therefore subject to bicameralism and presentment requirements. But, as Justice White pointed out, the Court’s opinion also characterized the suspension of deportation as an executive power; if that is the case, then why isn’t an action that merely blocks that suspension therefore an exercise of executive power, too? Justice Powell, for his part, saw things another way entirely: it was “clearly adjudicatory,” he wrote, for a house of Congress to decide whether or not Jagdish Chadha should or should not be deported. So Chadha was very much on my mind as I read The Executive Power of the Federal Courts, an interesting new paper by Adam Crews. Continue reading "Whose Power is it Anyway?"
Jan 12, 2024 Charlotte CraneTax Law
The recent work of David Weisbach and Daniel Hemel, including the Legal Envelope Theorem, engages with traditional questions about tax systems in important new ways. Legal tax scholarship has long explored the interactions between tax law and taxpayer behavior and has often used intuitions from economics in doing so. But only haphazardly has this work touched on the effects of nontax institutions on the functioning of tax systems. The Legal Envelope Theorem looks at these interactions in very deliberate ways.
At the risk of oversimplifying, Weisbach and Hemel’s thesis is that changes in non-tax legal rules and institutions that at first might appear to be undesirable can be desirable when their effects on tax systems are taken into account. More precisely, a nontax change that makes almost no change in overall well-being can make a significant after-tax increase in overall well-being if the non-tax change increases taxable income, increases collection of taxes, or increases potential for redistribution. Continue reading "Identifying and Exploiting the Relationship between Legal Rules and Tax Systems"
Jan 11, 2024 Melissa MortazaviLegal Profession
Milan Markovic,
Charging Abortion, __
Fordham L. Rev. __ (forthcoming, 2024), available at
SSRN (September 13, 2023).
While Americans today are often starkly divided, they appear oddly unified in their general skepticism of American legal institutions. What was once countercultural is mainstream, as anti-establishment sentiment against “the system,” once reserved for hippies, is the common rallying cry of protesters and political leaders alike.
Enter Milan Markovic’s article, Charging Abortion, which makes a simple, unpopular, and therefore courageous point: maybe parts of the system can (and do) work. More specifically, this article makes the case that prosecutorial ethics can work to provide a thoughtful rubric to exercise principled discretion in difficult situations. Taking up the hot button issue of abortion (now in a post-Dobbs world,) Markovic tries to puzzle through a fundamental question: how should prosecutors opposed to criminalizing abortion individually do their jobs in anti-abortion states? Continue reading "A Radical Assertion"
Jan 10, 2024 Joseph SlaterWork Law
Jeffrey M. Hirsch,
Labor Law’s Impact on the Post-Dobbs
Workplace, UNC Legal Stud. Rsch. Paper No. 4557256, available at
SSRN (Aug. 30, 2023).
Dobbs v. Jackson Women’s Health Organization, 579 U.S. 2228 (2022), meant that the ability to choose an abortion was no longer a right protected under the U.S. Constitution. Instantly, pre-existing bans or extreme limits on abortion in some states went back into effect, and other states adopted new bans and restrictions. This is likely not news to readers of this blog. What likely will be news—and useful news at that—is that labor law may help both unionized and non-unionized workers fight for and achieve abortion-related benefits at the workplace. Jeffrey Hirsch’s Labor Law’s Impact on the Post-Dobbs Workplace is a timely, informative, and well-balanced approach to this issue that I recommend to anyone interested in the intersection of workplace rights and reproductive rights.
Hirsch starts by noting that “[a]ccess to abortion and other health care depends on employers to an unappreciated degree.” That’s because most health insurance is provided by employers. Further, employer policies involving leave and scheduling can also affect abortion access. Continue reading "Labor Law and Reproductive Rights"
