Sep 22, 2023 Sida LiuLegal Profession
In The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe, Tommaso Pavone provides a paradigm-shifting perspective on the roles of judges and lawyers in the development of the European Union’s legal system. Unlike many works in the legal profession literature that portray judges as the dominant figures and lawyers as subordinate, Pavone presents a compelling argument that lawyers, in fact, took the lead in constructing the laws and regulations of the European Union. Using 353 interviews with legal professionals across Italy, Germany, and France, as well as participant observation in national courts, Pavone offers a richly detailed account of how lawyers shaped the legal construction of the European Union.
Pavone’s book challenges the widely held belief, especially among Anglo-American scholars, that judges enjoy a high degree of autonomy and direct power to make law. In contrast to their common law counterparts, continental European judges are described in the book as legal bureaucrats who are occupied with routine tasks and face significant internal and external controls from the judiciary and other branches of the state apparatus. Pavone’s extensive interviews and fine-grained ethnographic accounts reveal that European judges were generally uninterested in legal innovation, particularly when it comes to the application of EU rules in the early years of the European Union. This finding contradicts the mainstream “judicial empowerment” thesis in the international law literature, which posits that the construction and dissemination of EU law were primarily the result of European judges’ judicial innovation. This is a key contribution of the first half of the book, shedding new light on the limited role of judges in the construction of the EU legal system. Continue reading "The Silent Heroes of European Legal Integration"
Sep 21, 2023 Maris KöpckeJurisprudence
Some recent debates in general jurisprudence concern so-called moral impact theories of law, chiefly in the version proposed by Mark Greenberg. Greenberg’s theory has both staunch supporters and fierce critics. There are also a good number of scholars who look on these debates with perplexity and some dismay. Greenberg provocatively portrays law as the moral impact of institutional action. He presents his moral impact formula as the “legally correct” way to figure out the law’s content on the part of practitioners. His proposal has attracted some fine scholarship denouncing ambiguities within the account, and inconsistencies between the account and legal practice.
Watson’s piece takes these concerns a valuable step further. He argues that Greenberg’s theory distorts not only what practitioners count as law, but also how they reason to that effect. This is the kind of contribution from which one can learn, positively, about legal reasoning and practice, rather than just, negatively, where someone else goes wrong. Continue reading "On Moral Impact and Legal Practice"
Sep 20, 2023 Alexandra RobertsIntellectual Property Law
Michael Mattioli,
Conjuring the Flag: The Problem of Implied Government Endorsements, 83
Md. L. Rev. __ (forthcoming, 2024), available on
SSRN (Feb. 22, 2023).
When shoppers see “Now FDA approved!” on a bottle of Excedrin, does it make them more likely to select that option over a competing product? Will consumers choose a brand of dietary supplement marketed as a “patented blend” over one that doesn’t make patent claims?
In Conjuring the Flag: The Problem of Implied Government Endorsements, Michael Mattioli argues that advertisers use claims about intellectual property and regulatory approvals to mislead consumers about their products’ quality, safety, efficacy, or legitimacy. By reference to or use of the US Patent and Trademark Office or the Food & Drug Administration, advertisers borrow those agencies’ halos to imply that branded products from bugspray to hairspray to nasal spray are superior to competitors’ versions. Mattioli cites survey evidence finding most consumers interpret government stamps of approval like “FDA-approved” and “patented” as endorsements of quality. In Conjuring the Flag, he amasses data on the different ways advertisers reference agency or IP approval to appeal to consumers, highlights why that strategy is misleading, and proposes ways FTC could curb it. Continue reading "Name-Dropping Government Agencies in Advertising"
Sep 19, 2023 Hoi KongInternational & Comparative Law
Kristen Rundle is one of the world’s leading theorists of the rule of law. Revisiting the Rule of Law , evidences her extraordinary command of the theoretical literature, her deep familiarity with public law developments around the world, and the characteristic clarity that she brings to complex debates. Revisiting the Rule of Law is a tour d’horizon that is accessible to newcomers to those debates and enlightening to those who are well-versed in them.
Part I surveys methods by which the rule of law is theorized. Rundle begins by describing a series of recurrent themes in the literature. The first is that the rule of law has legal and political dimensions. As a political idea, the rule of law requires that “the rulers and the ruled, the government and the governed—must each be subordinate to the demands of law” (P. 5). By contrast, the legal dimension of the rule of law focuses “on how the institutions and procedures of a legal system constitute, express and sustain” (P. 5) this relationship of mutual subordination to the law. Part I then moves onto other classic themes in the rule of law literature: the meaning and significance of arbitrary power; the contrast between the rule of law and rule by law; the rule of law’s status as an ideal; and the essentially contested nature of the concept of the rule of law. Continue reading "Rundle on the Rule of Law"
Sep 18, 2023 Linda C. McClainFamily Law
Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment also includes a sense that transformative political and constitutional change are necessary but difficult because (as Suk and Kate Shaw recently noted) Americans have “lost the habit and muscle memory of seeking formal constitutional change” —and because of problems like polarization, gerrymandering, and restrictions on voting. Drawing on her expertise in comparative constitutional law and gender equality, Suk offers “comparative lessons” from feminist lawmaking and constitutionalism elsewhere to help move the U.S. to a democratic constitutionalism that is post-patriarchy and post-misogyny. (Pp. 212-14.) In this review, I explore some of those lessons concerning governmental commitments to supporting care and gender equality and to fostering reproductive justice.
First, some explanation about Professor Suk’s title. “Misogyny” describes what “endures” after “patriarchy loses its force as law.” (P. 2.) “Patriarchy,” Suk explains, “was a set of legal rules that lost their validity when constitutional democracies committed to gender equality throughout the twentieth century.” (P. 3.) In the U.S., such rules included coverture marriage. Patriarchy’s demise, spurred by feminist advocacy, included the end of coverture as well as ratification of the Nineteenth Amendment, and other gains in formal equality. Misogyny, by contrast, is a “range of expectations and entitlements” that “maintain patriarchal gender relations.” (P. 2.) Moving beyond misogyny requires “the transformation of a society’s foundational norms and baseline entitlements,” including how law “enforces expectations of female forbearance, sacrifice, and pain—especially in matters of reproduction and care—for the benefit of men and the society they control.” Continue reading "Care Work, Gender Equality, and Abortion: Lessons from Comparative Feminist Constitutionalism"
Sep 15, 2023 Medha MakhloufHealth Law
Yiran Zhang,
The Care Bureaucracy, __
Indiana L.J. __ (forthcoming 2023), available at
SSRN.
I’ll never forget my first Medicaid Fair Hearing as a legal aid attorney. The issue was whether my client, who was quadriplegic, was approved for sufficient Personal Care Attendant (PCA) time to chew his food. My client had recently been hospitalized for two months with aspiration pneumonia, a life-threatening condition caused by food entering the airway. His doctors advised him to eat slower, so he requested an additional 15 minutes of PCA assistance with eating per meal. The state Medicaid agency denied his request. The reason? They characterized the activity—waiting for my client to chew—as “supervision,” a non-covered service under the PCA program, rather than assistance with eating. My client and I found this reasoning absurd. At the hearing, we argued that waiting for a person to finish chewing is a natural and necessary component of feeding a person. Thankfully, we won, but that early experience of having to “fight” for every minute of PCA time for my client left me with an unfavorable impression of the home care bureaucracy.
I was reminded of this experience while reading Yiran Zhang’s forthcoming article, which focuses on subsidized home care in the United States. Professor Zhang describes the home care system’s origin in poverty law programs and its associated hyper-regulatory structure designed to combat fraud. Professor Zhang explores the administrative burdens that this structure places on both those who receive care as well as their caregivers, the latter of whom are disproportionately low-income women of color and immigrant women. She proposes an alternative structure for the public home care system modeled on the Department of Veterans Affairs’ caregiver programs for veterans with service-related disabilities. Continue reading "Addressing the Harms of Bureaucratization in the Public Home Care System"
Sep 14, 2023 Jennifer ChaconCriminal Law
For many years now, I have looked to the work of Devon W. Carbado for guidance on how to read, understand, and teach Constitutional Criminal Procedure. In his latest book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Professor Carbado summarizes, expands upon, and refines many of the useful insights that he has offered to his readers over the past decade in his law review articles. This book is a readable introduction to the Fourth Amendment, and one that would be a great teaching tool in a Criminal Procedure class.
Unreasonable offers a systematic critique of the Supreme Court’s interpretation of the Fourth Amendment over the past fifty years. A central claim of the book is that conduct that is often described in popular discourse as “police misconduct” is, in fact, entirely within the legal bounds of constitutional criminal policing. Courts have interpreted the Fourth Amendment in ways that allow police to engage in intrusive, preemptive, and racially discriminatory policing practices. While Carbado does not discount the problem of police acting outside of the bounds of the law, his focus is on the many ways that unreasonable police conduct is promoted and encouraged by law. His goal is to articulate an alternative vision for the boundaries of constitutional policing. Continue reading "In Search of Reason"
Sep 13, 2023 I. India ThusiEquality
Maybell Romero,
“Ruined”, 111
Geo. L.J. 237 (2022).
In her article, “Ruined”, Maybell Romero adopts an autoethnographic methodology to examine the harms judges cause by using the adjective “ruined” to describe sexual assault victims.
Romero takes us to a sentencing hearing in Utah, where she was a prosecutor for rape and sexual assault cases, and recounts how a sentencing judge referred to the rape victim as “ruined.” This experience shook her. The description of a rape victim as ruined triggered her as someone who had also experienced rape. Was she too ruined?
By explicitly centering how her personal history shaped her as a legal insider within the criminal system (prosecutor), she makes transparent what so many legal scholars try to hide—that our experiences in life shape our experiences in law. What I mean by this is who we are as people affect how we interpret the law, examine the law, advocate within it. This simple fact might be unremarkable to scholars in the humanities or other disciplines, but it is disorienting for some legal scholars who embrace the appearance of objectivity even when the substance of their work reveals subjective premises and biases that they are unwilling to confront. Professor Romero avoids this trap. Her choice to adopt an autoethnographic methodology is honest. The article openly meditates on how she personally experienced the legal phenomenon of judges’ use of the word ruined and is an example of the value of express subjectivity in scholarship. I think personal experiences can add to the expertise that one has in a subject. Transparently acknowledging that our experiences affect us as legal insiders (law professors) allows for textured legal scholarship that is informed by experience rather than fabricated from ivory towers, or even worse, rationalized and cloaked with legal doctrine when it is in fact prompted and motivated by the author’s personal biases. Continue reading "Un-Marking Rape Victims"
Sep 12, 2023 Pat GudridgeConstitutional Law
In their issue this past May, the editors of the Harvard Law Review included a very useful, very provocative student note entitled “Romer Has It.” This brief essay, never overbearing, positions its readers to think hard again and again, to challenge, to consider alternative paths. The Note is not an AI thinking machine taking over work at hand. It is akin instead to spiritual exercising, to a series of sometimes startling declaratory prods. Ignatius Loyola “pumps you up!”
I react illustratively here.
Romer v. Evans was a 1996 Supreme Court decision announcing that a Colorado constitutional amendment violated the Fourteenth Amendment Equal Protection Clause. A popular initiative, the revision decreed that the state’s law could not incorporate civil or criminal remedies–-seemingly a very wide range-–responding to adverse conduct keyed to sexual orientation. Ten years earlier the Court had decided in Bowers v. Hardwick that federal notions of due process did not prohibit state laws criminalizing acts of “homosexual sodomy.” These acts were not constitutional concerns, Justice White wrote. Seven years after Romer, Lawrence v. Texas overruled Bowers, now depicting “homosexual sodomy” as a matter of personal privacy and constitutional liberty that Fourteenth Amendment due process norms indeed acknowledged. Subsequent decisions in federal and state courts led to Obergefell v. Hodges, Supreme Court recognition of same-sex marriages as due process-protected too. Lawrence and Obergefell looked like landmarks. Famously, Justice Kennedy wrote the Court’s majority opinions in Romer, Lawrence, and Obergefell. Justice Scalia dissented, famously too. Continue reading "Now and Then"
Sep 11, 2023 Suzette M. MalveauxCourts Law
Jamillah Bowman Williams,
Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming),
available at Geo. L. Fac. Publ’n and Other Works 2407(2021).
Recent social justice movements—such as #MeToo and Black Lives Matter—have pushed mainstream American society to reckon with the ubiquity and persistence of systemic sex-based and racial inequities. At the heart of the firestorm are Black women, whose identity at the intersection of sex and race often exposes them to pervasive, but also unique employment discrimination and sexual harassment. Jamillah Bowman Williams’s Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy stands out as an exceptional examination of the how courts deal with such “intersectional” claims.
“Intersectionality,” famously coined by Professor Kimberlé Crenshaw over three decades ago, recognizes that Black women may experience discrimination distinct from how white women or Black men experience discrimination. This concept is not new—the Fifth Circuit recognized it as early as 1980. The Equal Employment Opportunity Commission (EEOC)—the agency tasked with enforcement of the Title VII of the Civil Rights Act of 1964—explicitly recognizes Title VII’s coverage of intersectional claims. Black women are overrepresented among low-income, vulnerable workers, and subjected to pernicious stereotypes rooted in chattel slavery. Continue reading "The Future of Intersectionality in Employment Law"
