Sep 16, 2022 Reuel SchillerLegal History
I’m sitting at our kitchen table in Brooklyn. It’s the mid-1970s. I’m not sure how the subject of Pittsburgh’s air quality came up, but my mother, who I’m sure had never been to Pittsburgh, was quick with an anecdote. “Did you know that Breyers Ice Cream doesn’t sell its famous vanilla bean ice cream there? People won’t buy it because they think the flecks of vanilla are little particles of coal dust that have gotten in their ice cream.” My mother was a notorious fabulist, and a morning spent poking around the internet suggests that this story was made up. Nonetheless, it lodged in my ten-year-old brain, shaping my image not just of Pittsburgh, but of the entire rustbelt. Imagine my surprise, fifteen years later, when I spent ten days there as a paralegal for a giant New York law firm, reviewing documents in our client’s offices, high up in the U.S. Steel Building. Not only did the air quality seem fine, but the city had all the accoutrements of late-1980s yuppie affluence: attorneys bedecked in pink tailored shirts and absurd shoulder pads, valet dry cleaning, Au Bon Pains everywhere, and all those damn flourless chocolate tortes.
I have no doubt that Gabriel Winant, the author of The Next Shift: The Fall of Industry and the Rise of Health Care in Rust Belt America, would be able to guess the type of product our client produced. It was a pharmaceutical company. At the center of Winant’s fantastic book is the question suggested by my brief encounter with Pittsburgh: how did it change from the quintessential industrial city to one with an economy sustained by healthcare and all its associated businesses? Of course, lurking not far under the surface of that question is a more fundamental one. How did large swaths of the American economy move from high wage, unionized industries that grew the white middle class to service industries with polarized wage structures that have generated economic inequality, particularly along racial and gendered lines? Continue reading "Law and the Structure of the New Working Class"
Sep 15, 2022 Robin KarJurisprudence
Many philosophers of the private law could profit from a close read of a new article by Professor Larissa Katz entitled Equitable Remedies: Protecting “What We Have Coming to Us.” The article draws a distinction between “what is ours” (the content of which is defined by various bodies of private law like property and contract, according to Katz) and “what we have coming to us” (which is, roughly, what we would have if we were to have full access to what is ours, without obstruction, diversion, or expropriation from anyone with notice).
According to Katz, private law obligates parties to respect what is ours, in part by offering legal remedies that allow us to hold others accountable to pay for losses associated with their failures to meet those obligations. Private law gives us normative powers, which can help us define what is ours, thus helping us to plan our lives and exercise our liberties. There is, however, always a gap between what is ours and what we have coming to us because enjoyment of what is ours sometimes depends on how others act or exercise their normative powers. This gap cannot always be closed by standard legal remedies, insofar as they only compensate for losses. Professor Katz’s thesis is that many equitable remedies from diverse areas of private law can be understood in a unified manner as seeking to close that gap by preventing others (sometimes even third parties who are not subject to standard legal remedies) from obstructing, diverting, or expropriating what is ours, thereby protecting what we have coming to us. Continue reading "An Interest In What We Have Coming to Us"
Sep 14, 2022 Michael W. CarrollIntellectual Property Law
In a memorable skit on Saturday Night Live, Pete Davidson-as-Eminem inquires about what a non-fungible token (“NFT”) is and why they are selling for so much money. In this succinct article, The Treachery of Images: Non-Fungible Tokens and Copyright, Professor Guadamuz admirably answers the first question and explains why the second one is a puzzle. With respect to the market for NFTs, he explains why those using copyright law to capture the economic value in this emerging market often misunderstand how distinct the exclusive rights under copyright are from ownership of a non-fungible token on a blockchain.
Based in the United Kingdom, Professor Guadamuz applies U.K. copyright law to determine whether and when the process of creating and selling an NFT may (or may not) implicate copyright rights. For the most part, this analysis tracks with that under U.S. law, but to readers based in the United States, this aspect of the article also yields some comparative insights about when and why the differences between U.S. and U.K. copyright law may matter. Continue reading "Owning Metadata: Dispelling Copyright Misunderstandings About NFTs"
Sep 13, 2022 Ann E. TweedyEquality
Cree author Billy-Ray Belcourt’s A History of My Brief Body is a visceral and devastating account of the effects of colonialism and anti-queer animus on one’s body and psyche. A memoir in the form of a series of essays, the book engagingly sets forth vignettes from the author’s life interspersed with a meta-analysis of how instances of oppression—both personally experienced and witnessed—spring from colonialism and anti-queer animus, which operate as a combined axis of oppression or separately depending on the circumstances.
As a poet and as a non-Native scholar of tribal law and federal Indian law, I am constantly trying to better understand the effects of colonialism. Belcourt’s analysis is unique in the way that it melds personal experiences with discourses of philosophy and literary criticism and in its unflinchingness and insistence on truth and accountability. I highly recommend this book for anyone that wants to understand the effects of colonialism or anti-queer animus in the Americas. While Belcourt is Canadian, I found that the work very much resonated with my understandings of colonialism and anti-queer animus in the United States as well. Continue reading "Colonialism and Anti-Queer Animus in Fisheye and Macro Focus"
Sep 12, 2022 Maureen CarrollCourts Law
Recent legal scholarship has shed needed light on the vast universe of litigation that occurs without lawyers. Large majorities of civil litigants lack representation, even in weighty matters such as eviction and termination of parental rights, raising a host of issues worthy of scholarly attention. For example, one recent article has examined racial and gendered effects of the lack of constitutionally guaranteed counsel in civil matters, and another has shown that judges tend not to reduce the complexity of the proceedings for the benefit of unrepresented parties.
In Judging Without a J.D., Sara Greene and Kristen Renberg add an important dimension to this discussion by examining the phenomenon of judges who have no legal training before they take the bench. Thirty-two states allow a person without a law degree to become a judge, including seventeen that allow non-lawyer judges to adjudicate eviction cases. Because of the high rates of pro se litigation, many litigants in these states “experience a courtroom in which often no one, not even the judge, is aware of the law.” Worse, some find that “the one person in the courtroom who is aware of the law is the attorney for the more powerful party (such as a landlord).” Continue reading "Non-Lawyer Judges in Devalued Courts"
Sep 9, 2022 Erin F. DelaneyInternational & Comparative Law
As we begin a new semester, during what seems to be a never-ending pandemic, with cultural and political tensions high, it is reinvigorating and humbling to be reminded of the privilege and responsibility we hold as members of the academy. In articles that dovetail beautifully, both Vicki Jackson and Elisabeth Alber highlight the influence and role of universities as institutions central to “both the democratic and the constitutionalist components of democratic constitutionalism” (Jackson at 159) and, in some circumstances, to the development of “positive peace,” or a “harmonised integrated society” itself (Alber at 53).
In her article, Knowledge Institutions in Constitutional Democracies, Vicki Jackson defines knowledge institutions broadly, including universities, the free press, certain government administrative offices, NGOs, and even courts and legislatures, in some instances. If, in the words of Tom Ginsburg and Aziz Huq, “the practical operation of liberal democracy requires a shared epistemic foundation,” then that epistemic base (or capacity) must be protected; if governments withhold or distort information to produce “correlated, population-wide errors,” democracy itself is at risk. Threats—whether political, economic, technological, or social—must be identified and addressed. Jackson is careful to note that legal protections to “secur[e] the foundations of knowledge institutions” (P. 163) are likely to vary depending on the institution in question. But she calls for close attention to the “knowledge ecosystem” of any individual state as something requiring “constitutional protection and effective self-monitoring” (P. 162), outlining many open questions and thus a robust research agenda for scholars. (Pp. 219-21.) Jackson’s article reminds comparative constitutional scholars to engage with the foundational functional underpinnings of constitutionalism—a call that requires contextualized and nuanced analysis. Continue reading "Scientia Instituta Potentia Est"
Sep 8, 2022 Amy MonahanHealth Law
Matthew B. Lawrence,
Medicare “Bankruptcy”, 63
B.C.L. Rev. __ (forthcoming 2022), Oct. 7, 2021 draft available at
SSRN.
Medicare’s hospital insurance trust fund is projected to reach insolvency by 2026. While looming insolvency is, in a sense, nothing new for Medicare – the hospital trust fund has been within six years of insolvency five times in the last five decades – it has never been closer to insolvency than it is now. In response to prior threats of Medicare insolvency, Congress has always acted to avoid such crises. Yet, as Professor Lawrence explains in Medicare “Bankruptcy”, today’s Congress may be unwilling or unable to do anything more than a short-term fix at best. At worst, Washington’s extreme polarization may create a situation where even politically sacred Medicare runs out of funds.
Medicare “Bankruptcy” makes two key contributions to the literature on Medicare reform. First, it provides a detailed examination of the many legal and practical issues that would be raised by Medicare trust fund insolvency. Second, it proposes a more rational approach to periodic threats of Medicare insolvency than simply crisis/short-term patch/repeat. By setting out the rules for Medicare bankruptcy in law in advance, Professor Lawrence argues, insolvency will be less harmful, less likely, and more likely to promote compromise and cost control. Continue reading "Understanding (and Avoiding) Medicare Insolvency"
Sep 7, 2022 Dara E. PurvisFamily Law
Michael J. Higdon,
Common Law Divorce, __
Ala. L. Rev. __ (forthcoming 2022), available at
SSRN.
Every semester I teach family law, I spend a few minutes contradicting my students’ instincts about common law marriage. Most students have a vague idea of common law marriage and joke about cohabiting friends being common law married. A regular part of my introduction of common law marriage is thus to explain that it is increasingly uncommon, discuss the important functions that the formalities of marriage serve, and emphasize that even in states that do allow the creation of new common law marriages, those spouses must seek a formal divorce should their relationship end. This last requirement–that all divorces be formalized–seemed so obvious a principle that I had never questioned it. That is, I had never questioned it until I read Michael Higdon’s article Common Law Divorce.
Professor Higdon’s main focus is on a small but significant group of married couples who have decided to end their relationship but who cannot easily or practically access divorce. This population, comprising about fifteen percent of separations, informally and permanently separate without ever legally divorcing. Professor Higdon outlines a number of factors that may be in play: lack of resources to access the court system, lower likelihood of remarriage and thus lower incentives to finalize their separation through divorce, and difficulty affording and navigating the formalities of divorce without legal advice. Such couples tend to be members of groups that have difficulty accessing the legal system in other contexts: disproportionately nonwhite and poor. Professor Higdon focuses on this group to argue that easier, even informal, methods of ending a marriage not only serve the interests of the people, but also the interests of the state. Continue reading "Why Not Common Law Divorce?"
Sep 6, 2022 Jennifer ChaconCriminal Law
The use of electronic surveillance and dataveillance in policing are topics of ever-increasing interest. In the pages of JOTWELL, Chris Slobogin recently provided a helpful introduction to Sarah Brayne’s Predict and Surveil, which represents an important contribution to this field of study. In this post, I want to celebrate Ana Muñiz’s contribution to this growing body of work: her latest book, Borderland Circuitry: Immigration Surveillance in the United States and Beyond.
While Brayne focuses on the LAPD, Muñiz initially trains her scholarly gaze on the practices of the Department of Homeland Security (DHS), and particularly Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). She explores the surveillance and information sharing practices that these agencies pursue as part of their efforts to identify and remove alleged gang members and “criminal aliens,” which is the term the federal government uses to describe “a noncitizen who has had contact with the US criminal justice system.” (P. 15.) Of course, her research quickly extends right back to agencies like the LAPD and other law enforcement agencies, whose labeling and surveillance practices shape, and are shaped by, federal immigration enforcement prerogatives. Continue reading "Border Wounds"
Sep 5, 2022 Tom C.W. LinCorporate Law
Ofer Eldar & Gabriel Rauterberg,
Is Corporate Law Nonpartisan?, __
Wis. L. Rev. __ (forthcoming 2023), available at
SSRN.
America is beset with partisan politics. The brinkmanship, dysfunction, and policies that emanate from political partisanship touch so much of American life, law, and society. Increasingly and prominently, businesses have been drawn into partisan debates on issues like gender equality, gun violence, reproductive rights, racial justice, and climate change. Many executives, investors, employees, activists, and other stakeholders now expect American businesses to play an active role in addressing many of society’s toughest challenges in the face of political institutions that too often seem too partisan to meaningfully confront those challenges. In response to a new wave of corporate social activism, national and local political leaders have both admonished and applauded businesses for their attempts to address social issues.
This new wave of corporate social activism has prompted many important questions and reexaminations of core issues at the critical intersection of business, law, and politics. One such foundational question is political partisanship’s impact on corporate law.
In a forthcoming article, Is Corporate Law Nonpartisan?, Professors Ofer Eldar and Gabriel Rauterberg offer an in-depth, fair minded examination of partisanship’s effects on corporate law and corporate lawmaking. Through a thoughtful study, that carefully weaves quantitative and qualitive analyses, the article offers a persuasive explanation of how partisanship may have contributed to key differences in state corporate laws and how safeguards against partisanship have contributed to Delaware’s sustained dominance in the competition for corporate charters. Continue reading "Partisanship and Corporate Law"
