Aug 14, 2023 A. Michael FroomkinJotwell
Jotwell is taking a short summer break. We’ll be back on Monday, Aug. 28. However, even while we’re on break, we’ll be accepting submissions, editing them, and updating various technical parts of the site.
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Aug 11, 2023 Kristina NiedringhausLexLibrarianship and Legal Technology
Any law librarian who works with the public or teaches no- or low-cost legal research, or any attorney or law student using free resources to conduct research understands the wide gap in usability between fee-paid databases and most free, open-access legal resources. Focusing on statutory code research, Professor Darvil’s article, Increasing Access to Justice by Improving Usability of Statutory Code Websites, examines the need not just for access to statutory codes, but providing the information in a way that allows the user to find the law they need. Through the lens of website usability standards, Professor Darvil assesses state code websites and provides recommendations for how those websites can improve usability. Many states have created “Access to Justice” initiatives and commissions aiming to improve citizen access and experience with the legal system. Professor Darvil’s recommendations provide excellent guidance for those interested in improving the research experience and access to the law for everyone, including those without access to fee-based databases such as Lexis or Westlaw.
Inevitably, my legal research students are, at some point in the semester, treated to my soapbox speech about how equitable access to the legal system rests on the ability of any citizen, regardless of means, to access the law they are obligated to live under. If states care about access to justice issues, logically they must care about how they provide access to the law. Professor Darvil’s article provides an excellent discussion of the access to justice issues endemic in a legal system in which, particularly on the civil side, many litigants are self-represented and how those litigants are impacted, frequently negatively, by their inability to find the law. Continue reading "Access to Justice Requires Usability, Not Just Open Access"
Aug 10, 2023 Nora Freeman EngstromLegal Profession
In Should Prosecutors Be Expected To Rectify Wrongful Convictions?, Bruce Green makes a compelling argument for why the titular question should be answered with a resounding “yes.”
To understand what is at stake, it’s best to start with a few statistics:
The National Registry of Exonerations identifies more than 3,000 wrongly convicted individuals who have been exonerated since 1989—likely a tiny fraction of the innocent men and women who have been made to serve time. Black individuals are up to 19 times more likely to be wrongly convicted of certain crimes than their white counterparts. Also chilling, “official misconduct”—most often involving the concealment of exculpatory evidence by prosecutors or their investigators—is present around 40% of the time. Continue reading "Innocence, Integrity, and Rule Reform"
Aug 9, 2023 Barbara LevenbookJurisprudence
Many readers are aware that arguments by Ronald Dworkin (in particular, his argument from theoretical disagreement) and by various persons claiming that social practices cannot be normative challenge the idea that law is founded on a social convention. More than forty years ago, Gerald Postema attempted to meet these objections with a Humean-Lewisian account of foundational legal convention. Marcin Matczak contends that another, virtually overlooked, and radically different account of conventions can surmount these objections. That account can be found in the works of Ruth Millikan. Millikan’s account, he argues, can ground a foundational-convention theory of law while avoiding the pitfalls of a Lewisian account of conventions.
Matczak’s first and most developed point is that, using Millikan, arguments from the contestability of conventions (i.e., from disagreement) do not undermine the claim that legal systems rest on a foundational convention for recognition of valid law. This conclusion follows from three surprising features of Millikan’s account of conventions: (a) neither universal nor general compliance is required for a type of convention suitable for law, (b) participants need not have mutual expectations, know others’ intentions and preferences, or be aware of the purpose of a convention, and (c) conventions do not set prescriptive rules governing future conduct. These three features fly in the face of a number of orthodoxies about conventions in general or legal conventions in particular. Nonetheless, I find them appealing. Continue reading "A New Way to Rescue the Idea that Law Has a Foundational Convention"
Aug 8, 2023 Michael W. CarrollIntellectual Property Law
Within the field of intellectual property law, there are not too many legal or economic developments that would qualify for an event study. But, on July 1, 2021, such an event occurred when a new rule issued by the National Collegiate Athletic Association (NCAA) took effect. Prior to that date, intercollegiate athletes were prohibited from exercising their right of publicity or any other rights in their name, image, or likeness (NIL) to endorse products, services, or businesses in a commercial manner. Under the rule change, these athletes, numbering nearly 500,000 at the time, suddenly became free to license or otherwise use their NIL rights commercially, and a new market was suddenly born.
In The NIL Glass Ceiling, Professor Boston explains how the market for intercollegiate NIL rights has quickly evolved in a way that provides these athletes with long-denied revenue but with disparate outcomes for athletes who identify as men or women. She argues that these disparities are problematic both because female athletes should be entitled to a greater share of the revenue in this market and because these disparities send an unwelcome message to female athletes about the state of gender equity in intercollegiate athletics and in the workplace. She argues that more gender-equal outcomes could arise if schools were subject to scrutiny under Title IX, applicable Department of Education regulations under Title IX, and NCAA rules that govern certain third-party support for intercollegiate athletic programs in the case of disparities in NIL revenues paid by certain third parties directly to athletes. Continue reading "Gender Equity in the Market for Collegiate Name, Image, and Likeness Rights"
Aug 7, 2023 Verity WinshipInternational & Comparative Law
Kish Parella,
International Law in the Boardroom, 108
Cornell L. Rev. __ (forthcoming, 2023), available at
SSRN (Oct. 31, 2022).
The Trump Administration provided a natural experiment in international law when it withdrew from state-level commitments to international law regimes. In the wake of this move, while the national government rejected international norms, big corporations continued to comply. Their compliance challenged long-standing assumptions about the centrality of states in enforcing international law. International Law in the Boardroom takes an important step towards understanding this puzzle: it unpacks how corporations institutionalize compliance with international norms. It then articulates how this analysis of the mechanics can help corporate compliance become even more widespread, a particularly laudable goal in a world where state commitments may swing with political change.
The article investigates what large companies have done by taking a case-study approach. It identifies contexts where the “state pathway” was weak–climate change, human rights and sustainable development–then examines the actions of large companies within sectors tied to each particular area. For example, when examining climate change, the author analyzed three large companies in the energy sector and three more “industrials.” (§ III.A.) Continue reading "Corporate Pathways for International Law"
Aug 4, 2023 Nadia SawickiHealth Law
One of the most salient criticisms of the majority opinion in Dobbs v. Jackson Women’s Health Organization is its failure to give any consideration to the very real physical risks of pregnancy and childbirth. As Justices Breyer, Sotomayor, and Kagan’s dissent recognized, even the most uncomplicated pregnancies “impose[] significant strain on the body, unavoidably involving significant physiological change and excruciating pain.” The majority’s oversight of this critical fact is even more striking given that the rates of maternal morbidity and mortality in the U.S. are abysmal compared to other developed countries, and are furthermore inequitably distributed by race.
Francesca Laguardia’s excellent article, Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Rhetoric, offers an insightful perspective on this glaring omission of the lived reality of pregnancy in judicial rhetoric. In light of Laguardia’s findings, the approach taken in Dobbs must be viewed not as an anomalous oversight, but rather as a natural extension of a long history of judicial disregard for the physical consequences of pregnancy and childbirth. When courts in abortion cases weight the state’s interest in fetal life against a pregnant patient’s right to bodily autonomy, they inevitably express concern for fetal pain and dignity, but are notably silent about the physiological consequences and dangers of pregnancy – including preeclampsia, gestational diabetes, vaginal and perineal tearing, the pain of labor, hemorrhaging, and postpartum depression. For scholars seeking to understand how the rhetoric of abortion jurisprudence contributes to the erasure of women’s voices, Laguardia’s article is required reading. Continue reading "Pregnancy, Childbirth, Pain and…Silence"
Aug 3, 2023 Dara E. PurvisFamily Law
It can be difficult to imagine today, but in 2015 when Obergefell v. Hodges was decided, it seemed to many people that LGBTQ equality was nearly won, at least as to family law. Some employers, courts, and state legislatures even rolled back programs or protections for LGBTQ couples on the logic that those couples could marry and no longer needed things like domestic partnerships that replaced some of the legal benefits of marriage. Such optimism as to the impact of marriage equality was unfounded, of course, and in today’s political climate seems laughably naive. Marriage equality did not signal victory of LGBTQ equality generally, nor did it even eliminate different legal treatment of LGBTQ families, as Susan Hazeldean incisively demonstrates in Illegitimate Parents. Professor Hazeldean provides a comprehensive explanation of one of the starkest differences remaining in family law: unmarried same-sex couples are not recognized as legal parents in many circumstances where unmarried different-sex couples are.
As Hazeldean traces in her article, post-Obergefell optimism even convinced many judges. One particularly pointed example Hazeldean provides is a Kentucky court of appeal judge, who argued that choosing not to marry should be understood as effectively waiving parentage claims even to a child that the unmarried partner raised from birth. (P. 1599.) But as Hazeldean shows with a fifty-state survey of parentage laws, states vary wildly in how much protection they give parental relationships linking both members of unmarried same-sex couples and their children. In most states, Hazeldean points out, marriage is the only way for both members of the couple to establish a legal parent/child relationship. Continue reading "Unmarried Same-Sex Parents: Obergefell’s Failure and Promise"
Aug 2, 2023 Paul HorwitzConstitutional Law
At least at this moment, one will find no uses of the word “scholactivism” in the Secondary Sources database on Westlaw. Yet readers encountering this neologism here will have little difficulty getting the gist of the word. They will have seen similar terms, like “scholar-activist” or “engaged scholarship.” They may believe the academy is increasingly welcoming of such approaches. They certainly know that in the United States, scholars of this stripe increasingly are targets for legislative interference. But they won’t puzzle over the word itself. That suggests a question worth examining. This is exactly what Oxford’s Tarunabh Khaitan has done, in an excellent article, along with a subsequent response to critics.
Although scholactivism is celebrated by some, Khaitan voices reasons for concern. His take is striking. It’s not the standard argument for “value neutrality in scholarship or pedagogy.” It has no specific political valence. And although it assumes a particular “role morality” for scholars centered on a devotion to “truth” and “knowledge,” it acknowledges that “every human activity—including scholarship—is permeated by power.” Neither, however, does Khaitan proceed by drawing a line between “good” and “bad” scholarship based on its outputs. Rather, he focuses on a motive-based account of scholactivism, and suggests that even scholactivism’s supporters should reject it for “instrumental reasons.” Continue reading "Constitutional Scholactivism, Foreign and Domestic"
Aug 1, 2023 Natsu Taylor SaitoEquality
Property, as we have come to know and protect it, is dispossession. This is the heart of Sherally Munshi’s Dispossession: An American Property Law Tradition, a carefully researched and richly nuanced piece that’s brilliant in the simplicity and clarity of its message. As Munshi illustrates, what appears as property from a vantage point of privilege may be understood equally validly as dispossession and this implies that the injustices associated with commodification and inequitable distribution cannot be redressed except from below. Not only from the perspective of those most dispossessed, but also, quite literally, from the ground up.
“The property law canon is full of forgetting.” (P. 1031.) Munshi’s stated intent is to develop a counternarrative of dispossession utilizing what we’ve learned from critical race theory as well as studies of settler colonialism and racial capitalism. Dispossession develops this narrative beautifully, enriching both property and critical theory by incorporating equity-minded insights from contemporary Indigenous and Black activists who counter the “uplifting narrative of national progress and racial redemption” that legal discourse and education promote and perpetuate. (P. 1031.) Continue reading "Property, Viewed From Below"
