Oct 20, 2023 Ezra RosserProperty
It is easy to forget that until recently, states paid bounties on the killing of a whole range of animals. In Property in Wolves, Professor Jack H.L. Whiteley explores the history of such bounties and of the ways such bounties subsidized particular forms of property ownership. His work is both eye-opening and provocative.
Anyone who has lived in rural parts of the mountainous west has witnessed the phenomena of a line of cars pulled onto the shoulder of the road, with excited occupants craning their necks or pulling out cameras to capture the sight of a wild animal walking nearby. Usually such sightings are limited to moose, elk, or bighorn sheep, but occasionally one can see a coyote, bobcat, or even a wolf. Such animals, joined by mountain lions, foxes, lynxes, and jaguars, among others, today are celebrated, painted onto the tail fin of Frontier Airlines’ planes, and often legally protected. Continue reading "Bounties for Animal Eradication as a Private Property Subsidy"
Oct 19, 2023 Paulo BarrozoJurisprudence
Samuel Moyn,
Reconstructing Critical Legal Studies, Yale L. Sch., Pub. L. Rsch. Paper (Aug. 4, 2023), available at
SSRN.
The CLS Movement thematized domination, contradiction, instability, interpretation, distribution, personal empowerment, interpersonal connections, and the claims of reason. Attitudinally, it had a 70s contrarian and (American) left temperament. Like all movements, networking rather than consistency was its core. Aware of the centrality of legal discourse and actors to social arrangements and outcomes, the movement sought transformative impacts beyond the privileged walls of law schools. CLS lasted as much as any movement can expect to, and it had important (especially pedagogical and curricular) successes.
That was the movement. What about CLS Theory? In Reconstructing Critical Legal Studies, Samuel Moyn offers a fast-paced and yet penetrating inventory of theoretical problems and approaches in order to recommend the “social theory of law” variant of CLS theory. Continue reading "What Critical Theory?"
Oct 18, 2023 Jessica SilbeyIntellectual Property Law
Andrew Gilden & Eva E. Subotnik,
Copyright’s Capacity Gap, 57
U.C. Davis L. Rev. __ (forthcoming, 2023), available at
SSRN (Aug. 9, 2023).
In this forthcoming article, Andrew Gilden and Eva Subotnik begin an important conversation about an underexplored area of copyright law. Their focus is copyright law’s inconsistent treatment of mental capacity. Under copyright law, copyright authors can produce valuable copyrighted work but those same authors may lack the legal capacity to make decisions about if, when, or how to exploit that work. For example, children and people with mental illness or disability can be copyright authors, but they cannot license that work (or refuse to license it) without a legally competent surrogate. The authors explain that this inconsistency leads to injustices for which they offer reforms.
The article starts with the engaging example of the Britney Spears’ 13-year conservatorship, controlled by her father, which from the age of 26 prevented her from making decisions about her life and career. All the while, Spears wrote and performed her songs, building a multimillion dollar portfolio over which she had no control. She was the author of her music, but she had no control over it because she lacked the legal capacity to form binding contracts, or so said a court. She resisted the conservatorship without success for over a decade. The article is full of many other such examples, including of teenage authors, elderly creators, and authors with mental illnesses. Continue reading "Copyright Fiduciaries: Problems and Solutions"
Oct 17, 2023 Shubha GhoshInternational & Comparative Law
Five years ago, I jotted here about The Internationalists, an engaging book from Professors Oona Hathaway and Scott Shapiro about the changing nature of war in the twentieth century. Professor Shapiro continues that inquiry in Fancy Bear Goes Phishing, published in May 2023. As some might tell from the word “phishing,” the book engages with hacking, a twenty-first century form of warfare with roots in the last decades of the twentieth. The book’s origins in his work with Hathaway are made clear in first pages: “Does cyberwar make a departure from traditional warfare, or are they both war, just with different weapons?” (P. 8). Shapiro worked in the software industry for several years after college before pursuing his JD and PhD in philosophy. He confesses that despite his initial confidence, delving into contemporary realities of software and cyberia, not to mention AI, made him realize that he “had slept through the revolution, only to wake up, several decades later, disoriented and clueless.” Nonetheless, his final product is a marvel to read, equal parts, computer science, philosophy, and law (both international and comparative), and a thing we should all like lots.
Consistent with its clever title, the book is well written and engaging. Five case studies are its foundation, and they rise above the anecdotal to the operatic and thought-provoking. Scott first tells us about the Morris Worm, let loose by a hapless Cornell graduate student Robert Morris, Jr., that brought down the Internet in 1988 and led to his conviction for hacking. We next meet the Dark Avenger, a Bulgarian hacker who, responding to a challenge from a cybersecurity researcher, devised a “mutating virus engine” that infected antivirus software. And what narrative of Internet woes would be complete without Paris Hilton, whose cellphone was hacked by an enthusiastic teenager, unleashing countless nude photos and a counterattack by Ms. Hilton against Lindsay Lohan? After entertaining us with the Hilton hack, Scott brings the eponymous Fancy Bear onto the stage with his leak of the infamous Hilary Clinton emails from the compromised servers of the Democratic National Committee. Finally, we learn about how a student’s attempt to erase his scores on the online game Minecraft, and perhaps also his Calculus grade, crashed the servers at Rutgers University. Continue reading "War By Some Other Name"
Oct 16, 2023 Helen NortonConstitutional Law
When (if ever) should we decline to apply longstanding First Amendment doctrine to technologies and practices unknown to, and unknowable by, the 20th-century Court that developed that doctrine? This question requires us to consider whether and when 21st-century expressive technologies are distinguishable from—or instead analogous to—older forms of expression in meaningful ways. As Genevieve Lakier observed in a related context, “analogies will prove useful only to the extent they are used thoughtfully, to illuminate the similarities and dissimilarities that matter for the purposes of the law.”
As courts and legislatures engage with such analogical questions with growing intensity, their high stakes become increasingly clear. Examples include the debate—now before the Supreme Court—as to whether social media platforms’ content moderation practices are (or are not) similar to the curatorial discretion exercised by newspaper editors, such that they do (or don’t) deserve the same First Amendment protections. So too are courts and policymakers now struggling with whether the products of artificial intelligence (including, but not limited to, chatGPT) are similar to or meaningfully different from human expression for First Amendment purposes (consider, for example, here, here, and here). Continue reading "Reconsidering the Public Square"
Oct 13, 2023 Amy MonahanHealth Law
Valarie Blake,
The Freedom Premium,
WVU Coll. of L. Rsch. Paper, No. 2023-010 (forthcoming), available at
SSRN (Mar. 13, 2023).
In the United States, universal health care is frequently derided as anti-American and liberty-infringing. In The Freedom Premium, Professor Valarie Blake turns this argument on its head by systematically exploring the ways in which our fragmented system of health care coverage influences the fundamental life choices of Americans – where and how much they work, when or if they marry or divorce, and where and with whom they live. Our current approach to health care coverage, she argues, unduly constrains these personal choices and, if freedom is a primary consideration, universal coverage is the answer.
To make this provocative argument, Professor Blake begins by establishing what she terms the “freedom premium” imposed by our system of health care finance, for both means-tested public programs and employer-sponsored insurance (ESI). The freedom premium refers to the incentives embedded in the eligibility provisions and coverage terms of a particular source of health care coverage that influence core social choices. Rather than relying solely on statutory terms to establish the relevant freedom premia, Blake interviews nearly two dozen individuals who have directly grappled with these and other trade-offs inherent in obtaining health coverage. Professor Blake finds, perhaps not surprisingly, that public programs tend to impose the most significant freedom premia on participants, primarily in the areas of work and marriage. Continue reading "Freedom and Health Care"
Oct 12, 2023 Rachel RebouchéFamily Law
Meghan M. Boone & Benjamin J. McMichael, Reproductive Objectification, __
Minn. L. Rev. __ (forthcoming 2023) available at
SSRN (August 25, 2023).
Meghan Boone and Benjamin McMichael’s forthcoming article, Reproductive Objectification, blends theoretical and empirical methods to argue that fetal personhood laws, in objectifying pregnant people, correlate with increased rates of intimate partner violence and violence against women. The authors examine three types of laws – feticide laws, advanced directive laws that override the wishes of pregnant patients, and civil commitment of pregnant people. By pulling three types of law together under the ambit of fetal personhood, the authors begin their piece with the insight that personhood laws are far reaching and longstanding. Boone and McMichael summarize their main points in this way:
First, if fetuses are full, legal people, and the law cannot comprehend “two physical bodies” that “occupy the same place at the same time,” then the potentially pregnant person must not truly be a person – but something else. Next, if potentially pregnant people are not fully human – not legal subjects – then they are instead objects or reproductive vessels. Finally, if potentially pregnant people are objectified as reproductive vessels, then they are vulnerable to the same types of violence that all dehumanized and objectified people have been subject to across time and history. (Pp. 15-16.) Continue reading "Fetal Personhood as Violence"
Oct 11, 2023 Erez AloniEquality
A tidal wave of anti-trans legislation is washing over the United States and across the world. The Trans Legislation Tracker reports over 566 anti-trans bills were introduced in the US in 2023 alone, with 80 passed and over 350 still active. The restrictions take the form of barriers to healthcare access, legal recognition, education, bathrooms, athletics, and openly existing as transgender in public schools. Advocates increasingly justify these measures as necessary to defend cisgender women and girls. As one example, the Preventing Violence Against Female Inmates Act of 2023, a bill introduced to the US Senate, would require that prisoners be housed based on their sex assigned at birth. Introduced by male senators only, Senator Tom Cotton claimed it “protects incarcerated women from rape and crimes,” since housing “men ‘identifying’ as women with females puts them at risk.” This strategy of cis men pushing legislation that purportedly shields cis women from harm now features prominently in lawmaking globally.
In their compelling essay, Cis-Woman-Protective Arguments, Chan Tov McNamarah names this rationale “cis-woman protective” (CWP) reasoning and exposes its flaws. McNamarah reveals the ubiquity of CWP arguments across domains, tracing their oppressive history steeped in gender inequality and paternalism, faulty logic, and actual harm to cis women through stereotyping. Continue reading "Gender Bullies in Feminist Costumes"
Oct 10, 2023 Maartje van der WoudeCriminal Law
As a (socio-)legal scholar interested in the world of borders and migration, I always feel rather inapt when people ask me about the ‘technological dimension’ of bordering. This dimension, although extremely central and crucial to understanding current day bordering practices both from a legal and an empirical point of view, seems to be an area that requires specific expertise that I do not have. Therefore, I am always on the lookout for articles to fill in this gap. Finding Valeria Ferraris’ article that not only touches upon the legal and technological aspects of the digitization of borders in Europe but that also reflects upon this development through a more sociological lens felt like finding a little gem that allowed me to feel updated on this ever-moving and developing sub-area of border studies. And, as is often the case, the article shows how, for legal scholars, it is also crucial to get an insider view and understanding of the workings of the law in practice. With developments in the world of data and technology moving so rapidly, it is important to keep track on whether the law – and in particular legal protection – is moving at a similar speed.
The article brings together the author’s multiple year-studies of the transformation of border control practices into practices driven by data processing and guided by all sorts of technologies. The article adds to that existing line of research an interesting new take on the concept of border performativity as used by Wonders in her 2006 publication Global flows, semi-permeable borders and new channels of inequality: border crossers and border performativity. As Ferraris explains, while citing Wonders, the concept of border performativity aims to ‘explain how borders are not only geographically constituted, but are socially constructed via the performance of various state actors in an elaborate dance with ordinary people who seek freedom of movement and identification. This dance is not only choreographed by state policies and laws, but it is also increasingly shaped by larger global forces’(P. 5, citing Wonders 2006: 64). Whereas the notion of border performativity has been used and reflected upon by various scholars working in the ever-expanding domain of border and migration studies, Ferraris adds to the existing literature by investigating ‘how data transforms both the State and the migrants’ border performance’ (P. 5). Continue reading "Europe’s Technology-Driven Borderscape"
Oct 9, 2023 Howard M. WassermanCourts Law
Much has been written (and reviewed) about the modern Supreme Court’s legitimacy and about reforming or restructuring the Court to pull it from this crisis.
Benjamin Johnson identifies a century-old power-grab as an overlooked cause for this crisis: Congress made the Court’s appellate jurisdiction almost entirely by discretionary writ of certiorari in 1925 and the Court within less than a decade arrogated power to use certiorari to select and decide discrete legal questions rather than to hear and resolve entire cases. The resulting system is not inherent in the “judicial power” granted in Article III, not authorized by statutory text, and not intended by Congress; in fact, it contradicts the Justices’ representations in lobbying Congress to eliminate mandatory jurisdiction. By asking and answering specific constitutional questions of its unilateral choosing, the Court “no longer decides cases,” in turn undermining its role as an appellate court and the logical and policy bases for its role as (final?) constitutional arbiter. Continue reading "Questioning Selection, The Supreme Court, and Legitimacy"
