May 3, 2023 Doron DorfmanEquality
Andrew Gilden,
The Queer Limits of Revenge Porn, 64
B.C. L. Rev. __ (forthcoming, 2023), available at
SSRN (Sept. 21, 2022 draft).
The law has a strange relationship with gay sex. Courts and legislators often manage simultaneously to ignore the realities of gay sexual expression, on the one hand, yet treat it differently from heterosexual sex on the other. Even when striking down the Texas sodomy law and expanding constitutional protection to same-sex, nonmarital sexual relations in Lawrence v. Texas, the Supreme Court constructed a narrative of a deep emotional bond between the couple at the heart of the case when in reality, the couple was not in a longstanding romantic relationship. As a few scholars pointed out, the Court seems to ignore the possibility that it was simply a hook-up, which nevertheless deserves as much protection as consensual sex in a committed relationship does. When presenting the court with the marriage equality cases, United States v. Windsor and Obergefell v. Hodges, lawyers went to great lengths to desexualize same sex relationships, making them easier for the court to swallow. And as I have recently showed empirically, in both the law and the public’s eye, gay sex with preventive measures against HIV is still deemed more dangerous than unprotected heterosexual sex is.
In his fabulously queer and highly significant article The Queer Limits of Revenge Porn, Andrew Gilden provides yet another example of such gay sex exceptionalism in the legal realm. Gilden exposes how even the feminist project to legally protect sexual privacy misses the mark when it comes to sexual norms in the LGBTQ community. Revenge porn, referring to the nonconsensual distribution of sexual images, has become a household term in the age of social media. Twenty-nine states now have criminal legislation prohibiting revenge porn. These laws, however, explicitly exclude images of voluntary nudity or sexual expression in “public” and “commercial” settings. (P. 21.) Continue reading "Revenge Porn Laws and Gay Sex Exceptionalism"
May 2, 2023 Jonathan SimonCriminal Law
In the age of mass incarceration, the prison has cast a shadow not only on our nation and many of its most vulnerable communities, but quite literally on our legal imagination. In her forthcoming Cal Law Review article, Rights Violations as Punishment, Professor Kate Weisburd of George Washington University Law takes a big step toward dispelling some of that shadow by confronting us with the shockingly thin jurisprudential basis on which courts have accepted a virtual constitutional geo-fence around not only prisons but the communities where people on electronic devices are monitored.
So what is punishment today? Yes, you will say, imprisonment, jail, some very few executions, and a great many community supervision sanctions. But this is an incomplete view. As Weisburd’s title indicates, those forms surround a vast stripping of some of the most valued rights defining citizenship. Not just the right to liberty and political participation which have some constitutional textual basis (in the 5th and 14th Amendments), but 1st Amendment rights to expression, association, and religious freedom, 4th and 5th Amendment rights to domestic privacy, freedom from coerced testimony, and access to counsel, and perhaps most strikingly 14th Amendment substantive due process rights to personal autonomy (or what’s left of it) and parenting. Nor is this only for those actually locked up, a major part of this article’s value is in documenting just how thoroughly these non-incarcerative sanctions are laced with rights cancellations. Continue reading "Punishment as Rights Violation"
May 1, 2023 Adam N. SteinmanCourts Law
For every right, there is a remedy. This venerable principle is found both in ancient languages (“ubi jus, ibi remedium”) and on pages of our own judicial canon so foundational that they call to us from a bygone typographical era (“it is a general and indifputable rule, that where there is a legal right, there is alfo a legal remedy by fuit or action at law, whenever that right is invaded.”). When federal constitutional rights are violated, however, the path to a meaningful remedy is often impassible. Criminal defendants whose state court convictions were tainted by constitutional violations must navigate myriad obstacles to federal habeas relief, particularly those that Congress imposed in the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). For those who suffer constitutional violations in other contexts and seek relief in federal court under § 1983, qualified immunity, the Eleventh Amendment, limits on municipal liability, and various procedural restrictions can block relief regardless of their claims’ substantive merit.
Two excellent articles offer ways to fix the current state of affairs. Brandon Garrett and Kaitlin Phillips propose changes to AEDPA and other doctrines governing habeas corpus petitions in federal court. Alex Reinert, Joanna Schwartz, and Jim Pfander examine how state and local laws can improve the enforcement of federal civil rights. In both pieces, the authors deploy their deep scholarly expertise to provide concrete, practical, thoughtful, well-crafted proposals that deserve careful attention from academics, advocates, lawmakers, and anyone else interested in these important issues. Continue reading "Fix It"
Apr 28, 2023 Hila KerenContracts
Gregory Klass & Tess Wilkinson-Ryan,
Gender and Deception: Moral Perceptions and Legal Responses, 117
Nw. U. L. Rev. __, forthcoming 2023, Jan. 20 2023 draft available at
SSRN.
Is caveat emptor indeed “a rule for he and not for she”? This is only one of the excellent questions raised by co-authors Gregory Klass and Tess Wilkinson-Ryan in their recent symposium contribution Gender and Deception. The question is induced by classical casebook entries that seem to reflect an increased judicial willingness to protect women from market deception. Recall, for example, the many “Arthur Murray cases” in which franchised dance studios around the country made exuberant profits from making elderly women with no dancing experience believe that they are only a few more lessons away from becoming professional dancers. However, to the extent such a gender-based approach exists (which is unclear at best), it often comes with a price not only for male buyers. Too often, as the co-authors importantly remind readers, intervention on behalf of deceived women seems to reflect and perpetuate gender biases regarding their capabilities—disrespectfully portraying them as gullible.
Given those implications, Klass and Wilkinson-Ryan delved into the relationship between gender and market deceit armed with exciting empirical tools. They designed three vignette-based studies that, in their words, “focus on common moral attitudes toward deception.” The authors report that the first study yielded the most significant results. This study tested the moral judgments of online-survey takers regarding a simple transaction between two individuals: a seller and a buyer of a used kitchen table. The deceiving party presented the table as an antique and sold it to the deceived buyer for $500, although the table was bought in a big box store, such as Target or Walmart, and was worth only $200. Participants identifying themselves as men, women, or nonbinary (counted with women), were asked to consider three different levels of buyer’s misrepresentation (implied, nondisclosure, and explicit lie) and ranked how ethical they were on a 1 to 7 scale. Continue reading "Gender and Marketplace Morality"
Apr 27, 2023 Jonathan FeingoldConstitutional Law
“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.
Of course, “constitutional law” is not some independent and self-executing thing. It is little more than what five Supreme Court Justices say the Constitution means. We might, accordingly, reframe the opening question and instead ask: Has the Supreme Court been faithful to the Constitution? Hasbrouck offers a bold response. Since at least the fall of the Civil War, the Supreme Court’s race jurisprudence has been defined by constitutional infidelity. Hasbrouck views the Constitution as an antiracist document that holds the “tools of abolition democracy.” For the antiracists and abolitionists in the room, Hasbrouck has a message: The Constitution is on our side. Do not misread constitutional law for the Constitution. And to reclaim constitutional law, we must first reclaim the Constitution. Continue reading "The Problem is the Court, Not the Constitution"
Apr 26, 2023 Michael E HerzAdministrative Law
Daniel Farber,
Inequality and Regulation: Designing Rules to Address Race, Poverty, and Environmental Justice, __
Am. J. L. & Equality __ (forthcoming 2023), August 1, 2022 draft available at
SSRN.
In the last few years, law schools and law professors have given new attention to how questions of race can be interwoven into courses that are not explicitly about race. Much has been written about how to do so in both first-year and upper-level courses, and, from all reports, the law school classroom has meaningfully changed. My sense, though it is completely impressionistic and unscientific, is that the typical Administrative Law course may have changed less than many others. It seems fair to say, at least, that there has not developed a standard suite of topics that a professor wanting to integrate questions of race and racism might include. (Though for those interested, the 2020 Symposium on Racism in Administrative Law on the Notice & Comment blog is a very useful place to start.)
Daniel Farber’s Inequality and Regulation will be of enormous value to those looking for an entrée for discussing race and Administrative Law. Moreover, wholly apart from its relevance to the classroom, it is an important substantive contribution regarding the role of race, and of poverty, in regulatory policymaking. And it tackles these thorny topics in a highly readable fashion, with a minimum of jargon, obfuscation, and, relatively speaking, citations. (Were it in a student-edited Law Review, the editors would have been pretty grumpy about the above-the-line to below-the-line ratio. It may be one advantage of faculty-edited journals is a refreshing rejection of the citation addiction (or fetish).) Continue reading "Harm Egalitarianism"
Apr 25, 2023 Kerri Lynn StoneWork Law
In Workplace Anonymity, Professor Jayne Ressler takes on the intersection of two critical workplace issues: toxic work environments and employee privacy. Citing workplace toxicity in the form of harassment, abuse, wage theft, and risk exposure among other things, Professor Ressler notes the failures of agencies like the Department of Labor, the Equal Employment Opportunity Commission, and the Occupational Safety and Health Administration, as well as government agencies and labor unions, to redress much of the toxicity that has fueled what has come to be known as the “Great Resignation” as the nation reeled from the pandemic.
The piece posits that fear of retaliation engenders a culture of silence around abuse and sets about examining reporting mechanisms. Ressler seeks to complement the suggestion of legal scholarship that employer access to certain private employee information be curbed, with a proposal “that uses information restrictions to report and document workplace misconduct ex post,” and proposes “anonymous reporting mechanisms concerning workplace misconduct” that would facilitate workplace redress and reform without the threat of retaliation. (P. 1497.) Continue reading "Keeping Confidences: Where Workplace Abuse and Privacy Protection Intersect"
Apr 24, 2023 Katheleen GuzmanTrusts & Estates
Scholarship brings variety. Complex constructions that drag readers through thickets; subtle and sublime ones suggesting some knowing inner ring; irony with head feints that leave the reader thunderstruck when the rug is pulled – each form can delight, with the best scholarship inviting others into the mind (if not heart) of its author. Reading this sort of piece can feel a bit like a temporary possession, every bit as exhausting as its writing may have been.
Richard Ausness pulls no such punches. In These Are a Few of My Least Favorite Things, he squares up unafraid to take down assorted aspects of the 1990 Revised Uniform Probate Code with an approach that is rapid but measured and always direct. There is much to be said for writing that inspires readers to see brand new things. But there is also something thrilling about seeing the same old things anew. Continue reading "When The Dog Bites"
Apr 21, 2023 Shelley Ross SaxerProperty
Professor Richard C. Schragger’s article, The Perils of Land Use Deregulation, provides a cautionary tale as to whether land use reform by state legislative preemption will backfire in the attempt to provide more affordable housing. Efforts to address the housing crisis have focused on state preemptive legislation to combat NIMBYism (“Not in My Backyard”) and local land use controls by using market reforms to speak to the perceived housing shortage.
The affordable housing crisis has generated calls for land use reform in response to claims that exclusionary zoning (for example, single-family housing codes and discriminatory practices by localities) exists at the base of this crisis. With the vigorous ongoing debate about the supply-side solution to housing demand, it is not clear whether upzoning, which may reduce market rate housing prices marginally, will produce affordable housing.
State regulation adopting a market-based solution could potentially reduce localities’ power to address economic inequality. Schragger challenges the conventional wisdom, supported by the YIMBY (“Yes in My Backyard”) movement that the state or possibly the federal government should preempt local regulations that interfere with market-rate housing construction. Continue reading "Land Use Deregulation and Affordable Housing"
Apr 20, 2023 Jennifer WrigginsTorts
Allyson Gold,
Insuring Justice, 101
N.C.L. Rev. __ (forthcoming, 2023), available at
SSRN.
Allyson Gold’s excellent article, Insuring Justice, shows that when low-income tenants suffer personal injuries caused by substandard housing conditions, the torts system fails them and protects negligent landlords. While the negligence cause of action applies to landlords’ actions and omissions in theory, low-income tenants face multiple barriers to successful negligence claims against landlords for their injuries. A chief barrier is the lack of liability insurance for landlords. This long-overdue article is the first to examine liability insurance for landlords, particularly for those who rent to low-income tenants.
Prof. Gold brings extensive knowledge of issues and problems facing low-income tenants as well as of insurance, and tort law, to bear in discussing liability for injuries caused by substandard housing. Why, Prof. Gold asks, do lawmakers require Airbnb landlords to have liability insurance for short-terms rentals to tourists, yet they do not require that landlords renting to long-term tenants carry liability insurance? She shows that this disparity is neither inevitable nor justifiable. Continue reading "Injured Tenants, Uninsured Landlords, and a Proposal for Mandatory Landlord Insurance"
