Apr 11, 2023 Sara MayeuxLegal History
Notwithstanding the title, The War on Drugs: A History, this illuminating book is not “a” history of “the” War on Drugs but an edited collection with a sampling of new research into the intertwined histories of drug regulation and criminalization, deregulation and decriminalization, both in the United States and around the world. To use the parlance of Jotwell, I like this book a lot.
But I am also writing this Jot because I worry that the title may mislead legal scholars into thinking that this is only a book for historians of criminal law or scholars of the “carceral state.” It certainly offers insights for those burgeoning subfields. But it contains a little something for everyone—well, everyone in the legal academy—whether they focus on the administrative state, on international law and foreign relations, or even on corporations. Indeed, one lesson reinforced by this book is that siloing the fields I just listed into separate scholarly communities, publications, and curriculums can hinder understanding of the various forms of relief and suffering, power and oppression, wealth and poverty produced by the drug trade and efforts to control that trade. Continue reading "Historicizing the War(s) on Drugs across National (and Disciplinary) Borders"
Apr 10, 2023 Courtney CahillFamily Law
Naomi Schoenbaum, Unsexing Breastfeeding, 107 Minn. L. Rev. 139 (2022).
Dissenting in the 1972 decision Stanley v. Illinois, Chief Justice Burger criticized the majority for suggesting that fathers and mothers were sometimes similarly situated when it came to nonmarital parenthood. “I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male’s often casual encounter,” said Burger. “Centuries of human experience buttress this view.” On Burger’s account, differential legal treatment of mothers and fathers was constitutionally sound because it reflected an obvious biological reality: that women had stronger attachments to children because only women carried, birthed, and nursed them. No matter that in 1972, the percentage of women who breastfed infants had “reached its nadir [of] 22%.” For Burger, breastfeeding was not just central to motherhood, but a constitutionally agreeable justification for sex discrimination—against men.
In Unsexing Breastfeeding, Professor Naomi Schoenbaum takes on the “centuries” of “common human experience” that assumes that breastfeeding is (1) exclusively biological, and (2) exclusively female. Schoenbaum shows that social practices have changed in the five decades since Burger’s 1972 dissent, with more than 80% of infants breastfeeding as of 2017 (P. 145 n.38), and that the law remains as tethered today as it was then to the idea that breastfeeding is—and should be—a female-only activity. For example, the Patient Protection and Affordable Care Act requires covered employers to offer lactation support services and breastfeeding education to women but not to men (P. 173). Similarly, the Family and Medical Leave Act grants mothers but not fathers workplace leave to attend breastfeeding-related appointments (P. 177). Moreover, state and federal public accommodation laws grant women but not men the right to breastfeed in public (P. 179). Likewise, hortatory policies like that of Florida celebrate breastfeeding as “an important and basic act of nurture which must be encouraged in the interests of maternal and child health and family values.” (Fla. State. Ann. Sec. 383.015 (1993) (emphasis added)) (P. 242). Continue reading "Unbundling Breastfeeding"
Apr 7, 2023 Maybell RomeroCriminal Law
In the opening of chapter two of Punishing Places: The Geography of Mass Imprisonment, Jessica T. Simes recounts the story of a group that dubbed themselves The Think Tank. This group, started in 1979 and comprised of incarcerated men at Green Haven prison in upstate New York, began conducting a study that would be seminal to understanding the connection between communities and prisons, and profoundly influential in understanding mass incarceration as an urban phenomenon. Using state assembly districts as the basis for their study, The Think Tank found that “approximately three-quarters of all incarcerated people in the late 1970s and 1980s in New York State hailed from Harlem, Manhattan’s Lower East Side, the South Bronx, South Jamaica, Bedford-Stuyvesant, Brownsville, and East New York in Brooklyn.” Understandably, this groundbreaking study lead sociologists, criminologists, and those who are influenced by their work to surmise that mass incarceration in the United States is an urban issue with an urban genesis. In Punishing Places, however, Simes aims to take “the Think Tank’s insights seriously” by “going wherever the data take us” to new views of mass incarceration and its relationship to communities outside of urban spaces.
Professor Simes uses data from the Massachusetts Department of Correction (MADOC) and interviews with social service providers (with several other sources, as well) to reveal a new pattern of mass incarceration that has shifted away from urban centers to small cities and suburbs, while continuing to disproportionately burden not just Black and Latino people who are incarcerated, but Black and Latino neighborhoods as well. Before diving into the data, however, Simes begins by describing the two prevailing perspectives in criminology and (urban) sociology that attempt to explain, now erroneously, why incarceration rates are highest in segregated urban neighborhoods. The social control perspective focuses on policing strategies and their fixation on the poor and minorities irrespective of crimes committed, while the urban inequality perspective takes the view that “rates of incarceration and violence are highest in neighborhoods of concentrated disadvantage.” Simes then attempts to unify both theories while also adding a new, spatial awareness beyond the usual focus on large cities. She explains that a unified theory combining social control with a more inclusive spatial awareness of inequality would better account for the movement of the concentration of mass imprisonment from urban neighborhoods to small cities. Continue reading "Geographies of Mass Incarceration"
Apr 6, 2023 Donald KochanProperty
Law sets the possibilities and reciprocal constraints within which human action can be incentivized, the benefits of exchange can be calculated, and conflicts can be resolved by a neutral arbiter in a predictable way. In these ways, law is operative on behavior. Law is not just a thing to be defined but instead can be defined by what it does.
In What Property Does, Professor Christopher Serkin reveals this insight by studying the services property law provides us for managing our relationships with others and with things. His article shifts the traditional baseline question. As he states, “Instead of asking what property is”—the question fielded in so much of property scholarship—his article “asks what property does.” (P. 893.)
Through dissection of several individual property doctrines, Serkin exposes a common, “underappreciated” purpose in the background of each—“protecting reliance on resources by favoring slow changes over fast ones in the evolution of property rights.” (P. 893.) Continue reading "Is What Property Is What Property Does?"
Apr 5, 2023 Emad AtiqJurisprudence
In criminal cases, the prosecution bears the burden of proving the defendant’s guilt “beyond a reasonable doubt” (“BRD”). But it is not entirely clear what this standard requires. Courts routinely strike down attempts by prosecutors and judges to define (say, in terms of degrees of confidence or the probability of guilt) what counts as reasonable doubt. Moreover, pure statistical evidence is often deemed insufficient for proof beyond a reasonable doubt, even when such evidence suggests an extremely high probability that the defendant is guilty. The BRD standard’s resistance to definition or quantification invites explanation.
Sarah Moss offers an intriguing account: proof beyond a reasonable doubt requires knowledge, and knowledge is similarly resistant to definition and comes apart from probable truth. Moss’s analysis touches on several aspects of legal proof in both criminal and civil trials, but I’ll focus my comments on two suggestions that struck me as especially promising. Continue reading "Standards of Proof, Statistical Evidence, and the Stakes"
Apr 5, 2023 Shubha GhoshInternational & Comparative Law
Many nation states have grappled with the questions raised by the use of artificial intelligence (AI) in administrative decision-making, law enforcement and criminal prosecution. National courts have addressed the use of data analytics for criminal sentencing. National legislatures have debated regulations limiting the use of machine learning for surveillance and profiling. But what role does international law play in the governance of existing and emerging artificial intelligence technologies? As of this writing, there are no international treaties providing guidance or imposing obligations on signatories in shaping the regulation of artificial intelligence. National law is the sole locus for containing artificial intelligence-based technologies.
Two essays published in the American Journal of International Law Unbound contribute to the neglected area of international law and artificial intelligence. Both look to international human rights law as the source of protections for liberty and equality in the encroaching technologies of machine learning, data analytics, and other software aided tools in the domains of law. Each however takes a different approach to integrating technology with traditional legal approaches in reining in unchecked uses of artificial intelligence. One author is skeptical of human rights law and its potentially luddite tendencies. The other author advocates for democratic values, as embodied in international human rights law, as providing the check for the deployment of new technologies. Because these two essays fill a longstanding gap in the scholarly literature on artificial intelligence and international law through contrasting yet complementary approaches, these are important works that I like lots. Continue reading "Artificial Intelligence, Human Rights, & Legal Judgment"
Apr 4, 2023 Lisa Larrimore OuelletteIntellectual Property Law
Nicholas A. Pairolero, Andrew A. Toole, Peter-Anthony Pappas, Charles A.W. deGrazia & Mike H.M. Teodorescu,
Closing the Gender Gap in Patenting: Evidence from a Randomized Control Trial at the USPTO (Nov. 1, 2022), available at
SSRN.
Inequality among innovators is a substantial social problem in terms of both equity and economic growth. For instance, Raj Chetty’s Opportunity Insights group has documented that if women, racial minorities, and low-income Americans invented at the same rate as high-income white men, then the rate of U.S. patenting would quadruple. They also note the glacial progress toward closing these gaps, such as the 118 years it will take to reach gender parity at the current rate.
These inequalities affect not only the rate of innovation, but also what kind of innovations are created—for example, all-female inventor teams are more likely to focus on women’s health. Unfortunately, the evidence base for policy interventions to reduce these innovation gaps remains depressingly shallow. Most policies are tested without a rigorous evaluation strategy or control group, making it difficult to determine whether they had any effect.
A new paper from the U.S. Patent and Trademark Office (USPTO), Closing the Gender Gap in Patenting: Evidence from a Randomized Control Trial at the USPTO, is a remarkable addition to this literature. For the first time ever, the USPTO has tested a policy intervention as a randomized experiment, allowing a credible evaluation of its effectiveness. Changes in patent policy have rarely been tested with any element of randomization and have never been tested previously by the USPTO itself. Even if this experiment had yielded null results, the effort would still have been laudable as a model for how agencies can assess the impact of a new policy and publicly disclose the results. But the experiment also documents that the intervention—a new program to help patent applicants without legal representation—led to a sizeable decrease in the gender patenting gap. Continue reading "Policy Experimentation to Address Inequality Among Innovators"
Apr 3, 2023 Emma CaveHealth Law
The International Committee of Medical Journal Editors (ICMJE) has set out guidance on the Conduct, Reporting, Editing and Publication of Scholarly Work in Medical Journals since 1978. The 2022 version recognises that “authorship confers credit and has important academic, social and financial implications” as well as implying “responsibility and accountability for published work.”
In Misuse of Co-authorship in Medical PhD Theses in Scandinavia: A Questionnaire Survey, published in the Journal of Academic Ethics, Gert Helgesson, Søren Holm, Lone Bredahl, Bjørn Hofmann and Niklas Juth survey the experiences and attitudes to authorship in Ph.D. theses in Denmark, Norway and Sweden. The article makes difficult but important reading. It points to a high level of acceptance and support for the ICMJE recommendations but a perpetuation of poor authorship practices. Continue reading "Ethical Co-Authorship"
Mar 31, 2023 James E. PfanderCourts Law
We have two reasons to welcome Heather Elliott’s paper on the Supreme Court’s original jurisdiction in state-party cases. First, she diagnoses and proposes a cure for what she describes as discrimination in the administration of the Court’s original docket. Second, she presents this paper as the opening salvo in an extended engagement with the Court’s original jurisdiction. Students of federal procedure and jurisdiction should attend to both developments.
As for the problem, the Supreme Court exercises discretion in deciding whether to allow one state to sue another state in the Court’s original jurisdiction. For example, the Court refused to allow pro-Trump Texas to docket an original suit to challenge the 2020 election results in pro-Biden states that certified electors in accordance with their states’ popular vote. Many welcomed the rejection of the Texas case, but Elliott invites us to consider the basis for rejection. Instead of allowing Texas to docket the case and then rejecting it for want of standing, the Court declined to allow docketing. Two Justices wrote separately to question whether the Court can properly exercise discretion in deciding when to allow the states to invoke its original jurisdiction, a jurisdiction conferred in Article III and often characterized as mandatory and self-executing. Continue reading "Inter-State Litigation on the Supreme Court’s Original Docket"
Mar 30, 2023 Mark KendeConstitutional Law
Alan Z. Rozenshtein & Jed Handelsman Shugerman,
January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution, 37
Const. Comment. (Forthcoming 2023), Jan. 21, 2023 draft available at
SSRN.
There can be no doubt that January 6, 2021, was one of the worst days in United States history. Outgoing President Donald Trump held a rally with supporters near the Capitol, urged them to keep “fighting” (the adverse election results and more), and sent them to illegally storm the barriers of the U.S. Congress. A Trump supporter lost her life, and numerous Capitol police and security officials were injured trying to defend the site. Many Trump supporters carried weapons but, miraculously, nobody in Congress was injured. Among the attackers were members of right wing extremist groups like the Proud Boys, who Trump encouraged.
One of the key questions in this tragic episode is whether the President himself committed a crime by engaging in inflammatory speech. The January 6 Congressional Committee has urged the U.S. Department of Justice to bring charges against Trump. But one legal defense that President Trump will employ is that the U.S. Constitution’s First Amendment protects his speech. Law professors Alan Z. Rozenshtein and Jed Shugerman answer the question of whether this defense should prevail in their impressive forthcoming article, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution. Continue reading "Former President Trump: Inflammatory Speaker or Criminal"
