Oct 13, 2022 Katharine YoungInternational & Comparative Law
The political and conceptual disagreements of the past are never quite buried; their excavation can do much to inform the present. So much is true in human rights, as demonstrated by an illuminating new collection on Social Rights and the Politics of Obligation in History, edited by Steven L.B. Jensen and Charles Walton. The book draws out the debates and positions taken with respect to economic and social rights, from a long history of medieval Christendom in Europe to indigenous peoples in South America and Africa, and to the 20th century attempts at international distillation exemplified by the Universal Declaration of Human Rights, the human rights treaties, and beyond. This broad history is accompanied by a complex understanding of obligation – religious, moral, cultural, social, legal–which helps deepen our understanding of human rights.
The thesis of the book, with sixteen robust and varied chapters, is twofold. First, the history of human rights has been distorted by the neat chronology of generations, whereby “second generation” rights to social security, education, food, health care, housing, and labor protections, succeeded the first generation of civil and political rights, with only the initial generation offering a mature, serious, and enforceable version of what gets to be labelled human rights. (Later environmental and collective rights have often been termed the “third generation” of human rights, with even more distance; a “fourth generation”, focused on new technologies, has also been posited.) Here, the contributors contest both the chronology and the neat categorizations themselves. Continue reading "Social Rights and the Morals of History"
Oct 12, 2022 Edward DoveHealth Law
In their recently published article entitled Confidentiality and Public Interest Disclosure, Paul Snelling and Oliver Quick make a persuasive case for how existing healthcare professional regulation in the UK fails to provide clear standards regarding when the duty of confidentiality may lawfully be set aside on the basis of public interest. This regulatory lacuna should trouble patients and the broader public alike. It creates uncertainty for professionals engaged in the health practices a patient may encounter, and it clearly is of concern to professionals, too: Snelling and Quick note that the British Medical Association (the registered trade union for doctors in the UK) has received more queries relating to confidentiality than other areas of ethical concern.
What is going on here, and how do Snelling and Quick advance their observation to point out such problematic anomalies in the healthcare regulatory environment? In what follows, I summarise and engage with their approach and key findings, concluding with several thoughts about future research paths to further explore how and why guidance for healthcare professionals suffers from poor quality, at least insofar as it concerns confidentiality. Continue reading "Under What Circumstances May a Healthcare Professional Disclose Patient Information in the Public Interest? Few Answers to be Found in Guidance for Healthcare Professionals"
Oct 11, 2022 Kali MurrayEquality
Renee Nicole Allen’s From Academic Freedom to Cancel Culture: Silencing Black Women in the Legal Academy is an important law review article. From Academic Freedom performs three valuable functions.
First, Allen outlines how legal institutions seek “to cancel” black women law professors by failing to legitimize them as public figures within the law school. Allen identifies what she terms “tools of cancellation” including dysfunctional benevolence and intentional microaggressions, as well as the responses of self-silencing and sidelining that black women law professors employ to navigate these tools of cancellation. Allen consolidates existing scholarship on these subjects. What makes From Academic Freedom powerful is the ways she employs these novel frames together to describe how these actions work together to silence black women law professors.
As Allen describes this process of cancellation, she then introduces her second innovation, her claim that law school functions as a white space that enforces white norms. Here, I want to place Allen’s work squarely within the burgeoning field of property, race and the law. Recent property theory has engaged a broad, multi-disciplinary theory in legal geography, sociology, history, psychology, with space, which can broadly be described as an abstract way to describe the physical dimension or characteristics of a location, and place, by contrast, consists of those spaces imbued with social meaning built through site-specific engagement and memory. Continue reading "All of Us Are Brave"
Oct 10, 2022 Linda S. MullenixCourts Law
William S. Dodge, Maggie Gardner, & Christopher A. Whytock,
The Many State Doctrines of Forum Non Conveniens, 72
Duke L.J. __ (forthcoming 2023), available at
SSRN.
If there is a topic in the whirlwind course that is now Civil Procedure that law professors give relatively short shrift to, it is the doctrine of forum non conveniens. Sandwiched among personal jurisdiction, venue, and subject matter jurisdiction, forum non conveniens is the fly-over country of procedure land. Procedure teachers typically have enough time to hit the highlights: Gulf Oil Co. v. Gilbert and Piper Aircraft v. Reyno. This cursory exploration of forum non conveniens usually ends with the passing observation that states, too, have their own doctrines of forum non conveniens.
Dodge, Gardner, and Whytock have undertaken the definitive study of state doctrines of forum non conveniens, which I view with no small degree of admiration. The authors are to be commended for delving into the largely ignored landscape of state procedural law, which is always a challenging task. Their study answers practically everything you might ever want to know about federal and state forum non conveniens and provides law professors with substantial data to voice something more than passing reference to state doctrines. More importantly, the authors locate their findings in a conversation about procedural federalism—how courts and rule makers spread procedural innovations throughout the state and federal systems through a process of diffusion. Continue reading "Deconstructing Forum Non Conveniens in the Context of Procedural Federalism"
Oct 7, 2022 Rachel RebouchéFamily Law
Laura T. Kessler,
Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law, 108
Cornell L. Rev. __ (forthcoming 2023), available at
SSRN.
Professor Laura Kessler’s new article, Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law, forthcoming in the Cornell Law Review, begins with the graphic and powerful retelling of five miscarriages. Her five miscarriages. She does not mince words; she does not, as she writes, believe that the experiences can “sound and look pretty.” (P. 1.) She soon reveals the reason for personal storytelling, which is to challenge the silence that surrounds pregnancy loss and to shine a light on this common yet often hidden experience.
Although there is copious scholarship on pregnancy and work, there is very little in the legal literature on miscarriage, specifically, and employment law. In mapping how the laws governing the workplace make miscarriage invisible, this article asks us both to see miscarriage as part of workers’ lives, demanding accommodation, as well as to think about how workplaces contribute to pregnancy loss. Below, I explore three important theoretical and practical contributions of the article before turning to the difficulty of defining pregnancy, miscarriage, and abortion. Continue reading "The Employment Law of Pregnancy Loss"
Oct 6, 2022 Jessica M. EaglinCriminal Law
Fanna Gamal,
The Miseducation of Carceral Reform, 69
UCLA L. Rev. _ (forthcoming 2022), available at
SSRN.
Educate, don’t incarcerate. Schools, not prisons.
The call to invest in institutions of care, not prisons and carceral surveillance has grown in popularity in legal and policy circles in recent years. But how should we spend our money to build a world that is safe and equitable for all? A popular response centers on schools. In her forthcoming article,The Miseducation of Carceral Reform, Fanna Gamal critiques this popular response. She contends that there is nothing inherently benevolent about investment in schools over prison. Yet if we take seriously the idea of reinvestment beyond that conceptual confine, we might begin to imagine a transformative pathway forward. Because her work challenges readers to confront the shortcomings in an underlying assumption central to criminal legal reform efforts in recent years, this article is a must-read for anyone curious about the connection between criminal legal reform and education in the era of mass incarceration. Continue reading "Reimagining Reinvestment"
Oct 5, 2022 Bill BrattonCorporate Law
Mark Roe,
Corporate Purpose and Corporate Competition,
Euro. Corp. Governance Inst. (forthcoming 2023), available at
SSRN.
There has been a subtle shift in the standard academic account of shareholder primacy. The touchstone citation for shareholder primacy used to be Jensen and Meckling’s famous 1976 paper on the theory of the firm. This has been displaced by Milton Friedman’s equally famous takedown of corporate social responsibility in 1970 on the pages of the Sunday New York Times. The shift in the citation pattern follows a shift in the leading discussion points. Where people once worried that agency costs were burning up billions of dollars of shareholder value, now, with agency cost containment and the emergence of ESG investing along with movement towards social welfare enhancement as corporate purpose, shareholders sacrifice their own returns for the greater good (or at least make gestures in that direction). A formidable task results for academic corporate law. It needs to reconstruct its own paradigm to explain and justify this turn to social responsibility. Friedman as a result emerges as the fundamental theory-giver rather than as a “but cf.” cite in a footnote describing corporate social responsibility as a related but irrelevant policy discussion.
Friedman’s New York Times essay expanded on a handful of pages in his book on political economy, Capitalism and Freedom, first published in 1962. We there come across a structural observation heretofore missing in discussions about ESG, corporate purpose, and the voting habits of institutional shareholders. Friedman turned to CSR in a chapter on monopoly, observing that the manager of a corporate entity operating as a pure competitor had no room to worry about CSR. The managers of a producer possessing monopoly power, in contrast, had rents to dispose of and allocative choices to make. CSR concerns are thereby conceptually tied to and perhaps limited by market power.
It is a powerful point. Kudos to Mark Roe for bringing it to bear on today’s governance discussion in his forthcoming article, Corporate Purpose and Corporate Competition. Continue reading "The Complicated Business of Corporate Purpose"
Oct 4, 2022 Robert HillmanContracts
Adam J. Levitin,
Not Your Keys, Not Your Coins: Unpriced Credit Risk in Cryptocurrency, 101
Tex. L. Rev. _ (forthcoming 2022), available at
SSRN.
Not Your Keys, Not Your Coins: Unpriced Credit Risk in Cryptocurrency, by Professor Adam J. Levitin, is a must read for anyone writing about or just interested in (or even trying to understand) the world of digital currency. The article is filled with important information and explanations about cryptocurrency, cryptocurrency exchanges, the language and meaning of investor agreements, and current and proposed regulation. The article nonetheless has a particular concern: It focuses on the risks investors face if a cryptocurrency exchange, which not only facilitates trades between sellers and buyers, but also serves as custodian for their cryptocurrency, becomes insolvent. Such an issue, the article points out, likely escapes many investors passively holding their cryptocurrencies in such a custodial account (hence the title’s reference to “unpriced credit risk”). Although no U.S. exchange has yet filed for bankruptcy, the article posits its inevitability in part because of the likelihood of exchange hacking or poor exchange investment strategies. In fact, as I write this JOT, cryptocurrency values are plummeting, raising questions about their future.
Although Not Your Keys discusses an assortment of exchange account arrangements, the article focuses on a particular common one: Cryptocurrency is held in a custodial account, but for various reasons well documented in the article, the exchange has exclusive access to the cryptocurrency and comingles the asset with other investors’ holdings. Further, the custodial account may “lull customers with misleading language about ‘ownership’ and ‘title.’”(P. 52.) In such instances, investors face an insolvency risk possibly unknown to them. The bankruptcy court may treat the co-mingled cryptocurrency as the property of the exchange, with investors holding only a general creditor contract right. This is crucial because in such circumstances, customers must compete with all unsecured creditors of the bankrupt exchange after secured creditors and others with priority rights have taken assets off the top. Continue reading "Cryptocurrency Custodial Arrangements: A Red Flag"
Oct 3, 2022 Helen NortonConstitutional Law
At a time when it’s all too easy to dump on the press, it may be surprising to find press law scholar Erin Carroll, a former journalist herself, adding to the criticism. Yet in News as Surveillance, a symposium essay, she illuminates “how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well.”
21st-century technologies now empower platforms to collect and aggregate information about us, and then to use this information to influence our choices to their own advantage, and in ways that we would resist if we were aware of their efforts. More specifically, platforms’ surveillance of our reading habits and preferences enables them to design and deploy interfaces that change our decisions about when to buy, click on, read, or forward specific content. Informed by data surveillance and fine-tuned through A-B testing, these interfaces can double, triple, even quadruple our willingness to accept online offers and requests. Continue reading "The Press’s Responsibilities as a First Amendment Institution"
Sep 30, 2022 Jodi ShortAdministrative Law
A “politics of care” has gained prominence in policy advocacy responses to the pandemic and the broad social and economic displacements and inequities it has caused and revealed. Policies such as universal preschool, funding for childcare facilities, tax credits for child and elder care, criminal justice reform, addressing systemic racism, and rebuilding of public infrastructure have been justified as ways to recognize that caregiving, which allows us all to survive, grow, and flourish, is a primary public value. Indeed, on the precipice of winning the presidency, Joe Biden embraced a vision of the President’s responsibility that includes a “duty of care for all Americans.”
In Public Care in Public Law: Structure, Procedure, and Purpose, Blake Emerson seeks to translate the growing resonance of the “politics of care” into an animating principle of public law, grounding U.S. statutory, administrative, and constitutional law in a legal principle of public care that obligates public officials to attend to the needs and values of those they govern. Emerson’s account is both descriptive and normative. He makes the case that the public care principle can be found in existing statutory, administrative, and constitutional law. And his project in this piece is to foreground that principle and claim its essential primacy. Continue reading "Legalizing the Politics of Care: The Search for the Moral Foundations of Administrative Law"
