May 17, 2023 Gregory M. SteinProperty
Professor Gerald Korngold has written a useful, thorough, and persuasive argument for the expanded use of land value capture, or LVC. His report is published by the Lincoln Institute of Land Policy, an organization that has long supported the economic work of Henry George.
George argued that real estate investors should profit from the fruits of their own labors but not those of the community. This means that these investors may benefit from the increased value of their improvements and additions to the land but not from land appreciation brought about by external factors. Increases in land value caused by the community should be recaptured by the community. Continue reading "Land Value Capture in the Modern Context"
May 16, 2023 Caprice RobertsLexRemedies
Katherine Mims Crocker,
Constitutional Rights, Remedies & Transsubstantivity, 110
Va. L. Rev. __(forthcoming 2024), available at
SSRN.
Faith in judicial decision-making is waning to say the least. Intense skepticism and criticism reign the day. Charges of unbridled power grabs abound, whether one decries the erosion of stare decisis or applauds perceived course corrections in constitutional law and remedies. All recognize victories may be fleeting as we increasingly unmoor from judicial norms and doctrines of restraint. Perceptions of more overt partisanship and consequential decision-making do not uplift the role of Article III judges or align with judicial independence. Is all hope lost? If one wishes to understand and improve the judiciary, Professor Katherine Mims Crocker’s article, Constitutional Rights, Remedies & Transsubstantivity, is for you.
Professor Crocker argues that federal courts should provide comparable options for securing remedies for discrete constitutional wrongs. The promotion of generality and neutrality to foster consistent application across distinct substantive areas is part of the transsubstantivity paradigm. The article’s focus is constitutional remedies—specifically, doctrines for preventing or punishing encroachments of constitutional rights or, when proper, remedies effectuating constitutional rights. And this moment in history poses an ideal opportunity to recenter on the transsubstantivity paradigm given its apolitical nature. Continue reading "Towards an Improved Judiciary—Decisionmaking Consistency on Constitutional Remedies"
May 15, 2023 Allan ErbsenCourts Law
Diego A. Zambrano,
The Unwritten Norms of Civil Procedure, 118
Nw. U. L. Rev. __ (forthcoming 2023), available at
SSRN (Feb. 20, 2023).
Civil procedure professors frequently experience the following classroom scenario. The professor asks a bright and well-prepared student to explain how lawyers and judges should react to a given set of facts. The student has parsed the relevant rules and analyzed opinions that interpret the rules. Drawing on this knowledge, the student articulates factors that will guide discretion. But the professor interjects that some of the student’s plausible assumptions are inconsistent with the reality of civil litigation. For example, lawyers often are reluctant to file certain kinds of motions that seem sensible, and judges often are reluctant to grant certain kinds of motions that seem compelling. Similarly, lawyers might pursue successful strategies that rules seem to foreclose, and judges might innovate in ways that rules do not contemplate. The student then asks how lawyers are supposed to know when to take rules and doctrines at face value, and when to surmise that atextual norms will supersede. Answering that query about the relationship between procedural law and procedural norms requires wading into murky waters.
Diego Zambrano navigates the murky intersection between law and norms in his forthcoming article, The Unwritten Norms of Civil Procedure. He contends that civil procedure scholars have not embraced a central insight of the law and society literature as systematically as scholars in other fields. That literature has repeatedly demonstrated that atextual norms can cause law in action to diverge from law on the books. Although civil procedure scholars have developed this insight in many specific contexts, they have not created what Zambrano calls a “trans-procedural” account of norms that aggregates lessons from distinct contexts. Zambrano’s article explains why a trans-procedural account would help scholars describe civil procedure more accurately and reform it more effectively. Continue reading "Normalizing Procedural Norms"
May 12, 2023 W. Bradley WendelLegal Profession
Andrew Perlman has made legal technology one of the themes of his successful deanship at Suffolk University Law School. He has also taken national leadership roles on law and technology issues, as the chief reporter of the ABA’s Commission on Ethics 20/20, with the charge of modernizing the Model Rules in light of globalization and digital technology, and as vice chair of the ABA Commission on the Future of Legal Services. He was selected as the inaugural chair of the governing council of the ABA’s Center for Innovation. Dean Perlman is therefore ideally positioned . . . to be replaced by a robot.
Many law professors have been playing around with ChatGPT, a chatbot released in November 2022. The developer, Open AI, an artificial intelligence research company, describes the chatbot on its website: ”We’ve trained a model called ChatGPT which interacts in a conversational way. The dialogue format makes it possible for ChatGPT to answer follow-up questions, admit its mistakes, challenge incorrect premises, and reject inappropriate requests.” One tweet, reproduced in an article on the technology, showed the output in response to the prompt, “Write a biblical verse in the style of the King James Bible explaining how to remove a peanut butter sandwich from a VCR.” I doubt that most humans – even a pretty good humor writer – could have done better. Anyone who follows law professors on Twitter has seen academics having a field day inputting their law school exams into ChatGPT or asking hard questions about technical areas of law to try to stump the system. In most cases, the chatbot has performed astonishingly well, providing not only technically correct answers but also demonstrating facility with style and rhetoric. ore ominously, a technology company CEO and a legal scholar had ChatGPT take the multiple-choice portion of the bar exam, the MBE, using the study questions published by the National Conference of Bar Examiners. The chatbot was correct on 50.3% of the questions, as compared with an average of 68% for human test-takers, and would have earned passing scores on the Torts and Evidence portions of the exam. Continue reading "The ChatBots are Coming!"
May 11, 2023 Christopher W. SchmidtLegal History
While working my way through Brad Snyder’s terrific new book, Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment, I found myself spending inordinate amounts of time admiring his endnotes. There are a lot of them to admire (almost 200 pages worth); they are clear and precise, and they allow the reader to peek behind the curtain and appreciate the stunning amount of research that went into creating this biography.
Frankfurter left behind a massive paper trail. He was a prodigious writer of articles, books, memos, and letters. He was also a lifelong cultivator of relationships with the kinds of people who were themselves energetic writers. The book’s endnotes tell the story of the years Snyder spent reading Frankfurter’s published works, interviewing people who knew him, and scouring the voluminous collections of Frankfurter’s papers and scores of archives around the country. This book, the first comprehensive biography of one of the most important figures in twentieth-century American law, is a major achievement. Continue reading "Felix Frankfurter Reconsidered"
May 10, 2023 Andrew HalpinJurisprudence
In his contribution to an academic event described as “Serious Fun: A conference with & around Schlegel!” Charles Barzun manages to meet all three expectations. Entitled The Tale of Two Harts; A Schlegelian Dialectic, Barzun’s article in the 2021 Buffalo Law Review delivers a number of serious reflections, combines them with some appropriate hilarity, and turns to the event’s honorand as an authoritative guide.
The serious stuff encompasses a comparative study of the influences of the two Harts (Henry and Herbert), an inquiry into the impact of prevailing intellectual culture on scholarship and how it is received, and an appraisal of disciplines (legal and other). It extends to a radical suggestion for legal education, observations on the CLS movement and legal historians, and constructing an academic profile. The fun is two-edged. Ultimately an invitation to have fun in one’s academic inquiries, it turns at times to poking fun at those who take themselves too seriously in their scholarly endeavours. That can easily be turned back as an injunction not to take oneself too seriously. Here too the honorand is taken to provide helpful guidance on striking the right balance.
The appeal of this article lies in the stimulating variety of topics covered and the way in which it weaves them together. The central idea to which much of the discussion returns is the “Essential Dilemma”. Barzun explains this as the problem of reconciling our “subjective” common-sense view of the world with an “objective” scientific view (P. 21). He considers that both Harts grapple with this dilemma. On one level, Henry Hart in The Legal Process is found to be pushing the objective scientific side in regarding “law as a ‘prudential’ or ‘judgmatical’ science” (P. 26), while Herbert Hart in The Concept of Law appears to be favouring the subjective side in advancing the “internal point of view” of the law (Pp. 15-16, 25). Continue reading "Hart Surgery"
May 9, 2023 Christopher J. SprigmanIntellectual Property Law
Klaus Ackermann, Wendy A. Bradley & Jack Francis Cameron,
Avengers Assemble! When Digital Piracy Increases Box Office Demand (June 30, 2020), available at
SSRN.
Does piracy of creative goods such as movies, books, or songs reduce paid demand for those goods? This seemingly straightforward question has proven surprisingly difficult to answer in the real world.
Piracy may draw away customers who might otherwise have paid. But it’s also possible that consumers of pirated copies are, by and large, not people who would have paid to consume if they couldn’t get access for free. Piracy may also help spread the word about a good movie, book, or song. This sort of informal advertising might drive up paid consumption, even if some people who would have paid are lost to piracy. It’s also possible that some combination of all these things might happen, with uncertain net results. Continue reading "The Complex Effects of Piracy on the Movie Industry"
May 8, 2023 Jedidiah KronckeInternational & Comparative Law
In 1972, Laura Nader published her generationally influential article, “Up the Anthropologist.” The motivation for Nader’s intervention was borne partly out of her experience with students who felt daunted by the prospect of studying powerful social elites—what has now become popularly known as “studying up.” As a pioneering legal anthropologist, for Nader this often involved the study of law, especially elite lawyers. Nader outlined many of the opportunities and demands that would face anthropologists and others who sought to use ethnographic methods to study those who could articulate and promote their own representations in public, and actively limit researcher access to their workplaces.
Fifty years after Nader’s intervention, Dimitri van den Meerssche’s The World Bank’s Lawyers: The Life of International Law as Institutional Practice tackles this task of “studying up” at perhaps one of the most singularly powerful international institutions—the World Bank. Van Den Meerssche takes up this particular challenge when all of the barriers Nader identified early on have only intensified. Not only is the Bank fully enmeshed in the defense of its own public image, but it is fully aware of the possibility that researchers could take any access as an opportunity to construct their own critical narratives
Van Den Meerssche has thus produced a fascinating analysis of how to study such an institution under these constraints, as well as a meditation on what critique of international institutions should look like. What he produces is not a traditional ethnography but, as Nader presaged, a creative empirical study that takes advantage of the Bank’s own complexity to dive deeply into the daily world in which the Bank’s lawyers operate. Continue reading "The World Bank’s Many Worlds of the Rule of Law(yering)"
May 5, 2023 Kaiponanea MatsumuraFamily Law
I have sometimes wondered whether it matters that the experiences of Asian Americans are nowhere to be found in the family law canon. This omission should be surprising. People from Asia have been skirting the shores of the Americas since the 17th Century. Within two decades of California becoming a state, people from Asia, mostly men from China, made up 25% of the entire work force and played a crucial role in developing the state’s infrastructure. These men, and others in western states, soon faced anti-miscegenation and immigration laws designed to prevent them from marrying and producing American-born children—laws concerning the bread and butter of family law. People from Asia or of Asian descent, some 22.4 million of them, are now the fastest growing minority group in the United States, largely because of family preferences in immigration law. Surely, I have told myself in passing, these and other developments should fit into the story we teach about family regulation. Surely, too, there are legal interventions that could strengthen Asian families or validate their shared experiences. But soon after I begin considering the possibilities, I am waylaid with doubts: What, if anything, are those shared experiences and values, and are they worth preserving, here? And would anyone, even Asian Americans themselves, really care about these stories?
The Loneliest Americans, by New York Times staff writer Jay Caspian Kang, is an epistemology of these ambivalences. Asia, Kang explains, means nothing to the immigrant from Korea, who finds little in common with people from countries like the Philippines or China. (P. 59.) Additionally, the highly skilled workers and their descendants who arrived after the Hart-Celler Act of 1965 (which replaced national origin-based immigration with a preference system favoring family reunification and skilled workers) have at best a tenuous, mostly imagined connection to the exclusion, lynchings, discrimination, and interment experienced by earlier Asian laborers and their descendants. (P. 57.) Above all, Kang provocatively argues, the upwardly mobile contingent of post-Hart-Celler Asian Americans are not invested in an Asian American identity because they hold onto the belief that it is possible on some level to assimilate into whiteness: thus, they hollow out Asian Americanness from the inside. Continue reading "Nothing, Nowhere, Not Right Now"
May 4, 2023 Trudo LemmensHealth Law
Determining what is reliable evidence seems particularly politicized and contentious in the context of physician-assisted-suicide [PAS] and euthanasia. In jurisdictions where its legalization is debated, opponents often illustrate critical interpretations of official, largely self-reported data with media-reported cases, which legalization advocates tend to trivialize as “anecdotes.”
Prior to Canada’s rapidly expanded euthanasia practice, data and media reports in Belgium and the Netherlands, which have euthanasia laws going back to 2002, used to be at the center of this debate. Official review committees in those countries rarely if ever identify serious problems with a practice that now involves around 3% (Belgium) to 5% (Netherlands) of overall deaths. Some legalization advocates see this as a confirmation of the practice’s safety. The “not-guilty” jury-verdict in the only Belgian criminal trial ever launched against doctors for their involvement in a reported euthanasia case could be seen as a vindication of the claim that even in the contentious context of mental illness, the system works. In Improving Control over Euthanasia of Persons with Psychiatric Illness: Lessons from the first Belgian Criminal Case Concerning Euthanasia, Belgian scholars Marc De Hert, Sien Loos, Sigrid Sterckx, Eric Thys and Kristoff Van Assche convincingly show us why this is wrong. Continue reading "What Counts as Evidence? A Uniquely Valuable Analysis of a Belgian Criminal Case Involving Euthanasia"
