Apr 19, 2023 Nicholson PriceTechnology Law
Janet Freilich,
Government Misinformation Platforms, __
U. Pa. L. Rev. __(forthcoming 2023), draft available at
SSRN (Feb. 27 2023).
Where does trusted information come from? In a world of misinformation, where everyone is skeptical of everything, at least we can rely on expert, authoritative government agencies like the Environmental Protection Agency, the Centers for Disease Control, the Patent Office, and the Food and Drug Administration, right? Right!?
Not so fast, Professor Janet Freilich persuasively but depressingly argues in the smart, eye-opening, “why didn’t I think of that” Government Misinformation Platforms. Freilich’s central point is fairly straightforward (although the article is rich with nuance and detail): We usually laud the government’s sharing of information because government-provided information is usually pretty trustworthy and useful for all kinds of things, and because transparency is usually a good goal. There’s a whole law (the Freedom of Information Act) about getting government to share information on request, supplemented by various transparency efforts. But there are also many government-run platforms that share information that the government itself didn’t produce—and in fact, that share unvetted, frequently incorrect, sometimes deliberately misleading information. When people see information on these platforms and think “government information = trustworthy,” then the problems start. Continue reading "Trust, Trustworthiness, and Misinformation Shared by the Government"
Apr 18, 2023 Jon ChoiTax Law
Brian D. Galle & Stephen E. Shay,
Admin Law and the Crisis of Tax Administration, __
N.C. L. Rev. __ (forthcoming 2023), draft available at
SSRN (Jan. 27, 2023).
Tax regulations and subregulatory guidance abound with apparent giveaways to taxpayers, favorable interpretations with little or no statutory justification. Examples include the check-the-box rules, the waiver of 382(l)(5) net operate loss carryforward limitations during the financial crisis, and many more. On the other hand, it’s hard to think of cases where Treasury or the IRS has deviated from the statute at taxpayers’ expense. The typical explanation for this asymmetry is standing doctrine: if my tax bill is too high because of an agency rule, I can sue the government, but if it’s too low, nobody can sue to raise it. Now, a terrific new article by Brian Galle and Stephen Shay considers the implications of this “tilt against revenue” for administrative law.
Galle and Shay bring a fresh perspective to the classic debate on administrative tax exceptionalism. They suggest that the tilt against revenue cuts against the formalist, anti-exceptionalist position (most famously promoted by Kristin Hickman) that tax regulations should follow the same procedural rules that apply to all other regulations. Instead, they suggest that courts should counter-act the tilt against revenue by applying administrative law requirements more leniently to Treasury and the IRS. Continue reading "The Case for a Tilt Toward Revenue in Tax Administration"
Apr 17, 2023 Francesca BartlettLegal Profession
The “baby boomers” of the English-speaking West are those born from the late 1940s to early 1960s, and, as the name suggests, there were a lot of them. Despite their advancing age, and recent COVID-19 threats, this generation remains the second-most numerous in the USA. In Australia—the subject of Angela Melville, Valerie Caines and Marcus Walker’s paper—the same generation dwarfed all others until very recently.Consequently, there are many aging lawyers leading to what has been described as an impending “senior tsunami.”
Melville, Caines, and Walker provide an analysis of the available data on the Australian legal profession to trace a range of intersecting concerns around its aging profession. This is the first analysis of its kind in Australia, and it is a clear and nuanced examination with some sensible recommendations. The study reflects the findings of the first and second Joint Committee on Aging Lawyers established by the National Organisation of Bar Counsel and the Association of Professional Responsibility Lawyers (NOBC-APRL), which noted:
there is a great number of lawyers with tremendous experience, insight and wisdom that can be shared with newer members of the bar. These same lawyers can devote themselves to valuable public service and improvement of the profession. The bad news is that there is an ever increasing risk of more lawyers with age-related impairments and insufficient preparation for transitioning away from practice before a crisis forces that transition. Continue reading "The Complex Picture of Aging Lawyers"
Apr 14, 2023 André den ExterHealth Law
Most lawyers will not be acquainted with the concept of Health Technology Assessment (HTA), although it is now considered a key instrument in health policy decision-making in Europe. It is also a potentially controversial concept as it reviews the cost-effectiveness of health technologies taking into account resource constraints. HTA has been defined as “a multidisciplinary process that uses explicit methods to determine the value of health technology at different points in its lifecycle.” Its purpose is “to inform decision-making to promote an equitable, efficient, and high-quality health system.”
HTA can be used as a policy instrument to decide whether a social insurance policy will cover a new health technology—whether a therapy, medicine, or device. HTA is not restricted to Europe. It has been applied in other parts of the world and is supported by the World Health Organization. One may ask, what’s in it for lawyers? Since HTA decision-making has health policy implications concerning the availability and accessibility of new medical technologies for all, it has human rights implications with respect to the right to health care.
This dissertation questions the role of law and the right to health care. It is grounded in the idea that international law regarding rights to health care can contribute to formulating standards for implementing health policies. The author argues that the role of law is not restricted to procedural issues such as transparency, but also more substantive criteria, including non-discrimination, maximum available resources, progressive realization, and international cooperation. Bottini Filho describes this as “applying the human rights-based approach” (HRBA) in HTA decision-making. The result of that approach, according to the author “should be an accountable process not only to distribute resources but also to create them and thus avoid unnecessary [health care] rationing.” For those who believe health care rationing is inappropriate and that health care is not a social good, a rather bizarre outcome. Continue reading "Health Care Decision-Making and the Law"
Apr 13, 2023 Brooke D. ColemanCourts Law
The authors of Racial Capitalism in the Civil Courts bring together two underexamined areas of civil procedure scholarship—the state civil court system and race. Using the theory of racial capitalism as a lens, the authors argue that state courts, by design and effect, entrench the inequality upon which capitalism relies. Instead of providing a respite from injustice, state civil courts function by processes in opposition to traditional conceptions of fair procedures. For example, most individual defendants are without representation while the corporate plaintiffs have lawyers; there is little or no discovery; and there are high rates of default judgments. Moreover, racialized litigants bear the brunt of state court processes and their shortcomings. The authors argue that this perversion of justice is no accident but is instead by design.
In the wake of 2020’s racial reckoning, scholars have paid more attention to how race impacts the civil legal system. But much of the scholarship to date has focused on impact—how race drives one’s experience of the civil legal system through lack of access, how one is treated within the system, or how racial discrimination claims are adjudicated. Unlike the deep literature on the criminal legal system, which examines how systems of oppression—including the institution of slavery—have characterized the system’s development, no robust studies examine how the civil legal system entrenches racial inequities. Continue reading "State Civil Courts of Racial Oppression"
Apr 12, 2023 Jaya Ramji-NogalesLexImmigration
Scholarly examinations of sanctuary for immigrants tend to focus on destination states in the Global North, where the concept implicates support for the immediate needs of immigrants in a specific location—such as a church, or throughout a city—and in some cases policy advocacy efforts. Few scholars writing in the Global North have explored how this concept translates to the Global South, where most migration and transit occurs, and where a substantial amount of work is happening to support migrants despite the more profound costs to those residing in countries with more limited resources. Alexandra Délano Alonso offers the reader a shift in the epistemology of migration, taking us to locations in the Global South where this work is taking place. In Sanctuary in Countries of Origin: A Transnational Perspectives, she investigates the concept of sanctuary through a case study of her home country of Mexico, determining that the term is an uneasy fit and that the practice of sanctuary is more transformative in the Mexican context.
Délano begins with an examination of historical sanctuary practices in Mexico, noting that, much like in the United States, the main actors have been migrant shelters, churches, and community organizations, but that Mexicans are more likely to use the terms hospitality, shelter, and welcome to describe the support offered to migrants. Given that the Spanish definition of sanctuary tends to focus narrowly on religious spaces, she questions its political power in popular discourse. Délano also asks the key question about sanctuary that Mexicans raised in response to the Central American caravans in 2018, namely, whether sanctuary can exist in a location that is unsafe and under-resourced even for locals. She also explores the complexity and contradiction in the political discourse around these caravans, noting an about-face between governments, from a discourse of hospitality for asylum seekers to the assertion just a few months later that Mexico is not a sanctuary or a “country of open doors” by the administration of Andrés Manuel López Obrador. Continue reading "Whither Sanctuary? Shifting the Sites of Knowledge Production"
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?"
