Aug 5, 2022 Rebecca RoipheLegal Profession
Part of what makes David Luban so masterful is his ability to pose a critical question. After reading the first few sentences of his article, Complicity and Lesser Evils: A Tale of Two Lawyers, I immediately wanted the answer. Should lawyers participate in a corrupt or evil regime? Should they try to use their power to mitigate the damage or should they run in the opposite direction, knowing that obedience is support so no matter what they does they will end up responsible for the evil result? The answer to this question matters not only to give government lawyers guidance in the unlikely event that an evil regime takes over, but also to deepen understanding of the role of government lawyers in normal(ish) times.
Another thing that makes Luban so talented as a lawyer, academic, and philosopher is his ability to tell a story. Rather than answering the question he poses with philosophical rumination alone, he recounts the story of two lawyers who worked in the Third Reich. Some questions are hard to answer with logic and reason, citations to cases, or philosophical principle. This is one of them. The result of the story is that, when Luban does return to moral philosophy, its practical import is so clear, its human side so vivid that one hardly notices that it is, in fact, philosophy. Continue reading "Is Obedience Always Support? Government Lawyers in Evil Regimes"
Aug 4, 2022 Michelle McKinleyLegal History
Freedom with Local Bonds: Custom and Manumission in the Age of Emancipation examines the ways in which claims to freedom were interpreted by judges who drew on local custom in contested manumission suits in 19th century Santiago de Cuba. Slavery scholars have long examined manumission in Cuba (known as coartación) as the practice of paying for one’s freedom with fixed instalments and terms agreed upon by both the enslaved and enslaver. Drawing on the Roman law concept of peculium, enslaved people could earn wages and pay a portion of these towards their purchase price. Coartación was one strategy that created a status of conditional freedom. Other manumission strategies included promissory notes of freedom for terms of service, typically conveyed through testament at death and at baptism. Notwithstanding this plurality, Chira shows that coartación accounted for 75% of the manumissions in Santiago de Cuba during the 19th century. Because these were arrangements that stretched over considerable periods of time, the legal status of conditionally freed people was often nebulous and dependent on local customary interpretations of freedom contracts. Although the enforcement of manumission contracts was ultimately a legal matter, Chira shows that jurists depended heavily on local custom to rule in the cases she examines.
The article examines the local bonds, community ties, landholding patterns, and economic exchanges that manumission depended on—given its relatively sparse doctrinal or formalist treatment in the law. In so doing, Chira pushes us to “consider an alternative genealogy of freedom ideologies in the 19th century.” (P. 950.) Cuba was one of the last two nations to abolish slavery in 1886. The aftermath of the Haitian Revolution unfolded simultaneously with the voracious global demand for sugar for mass consumption. As such, 19th century Cuba experienced plantocracy expansion, black repression, and dependence on enslaved labor for sugar. This scenario would not have created the propitious conditions for manumission. Yet as Chira shows, enslaved people had been pursuing individual paths to freedom through the courts throughout the century. In fact, free people of color represented one-third of the population in Santiago de Cuba, and nearly half of its landholdings were owned by free people of color. (P. 959.) As Chira notes, numbers like these tell one story, but they also reveal very little about “the vexed dynamics of manumission.” (Id.) Continue reading "Freedom by Custom: Vernacular Legalisms in Nineteenth-Century Cuba"
Aug 3, 2022 Barbara LevenbookJurisprudence
In this book, The Making of Constitutional Democracy: From Creation to Application of Law, Paolo Sandro has done what few in recent common law scholarship have attempted: presented a persuasive case for the interconnection between some issues in high legal theory and democratic legitimacy. His excursion into legal theory is needed to argue against, among others, Kelsen, legal realists, critical legal scholars, and interpretivists that there is a meaningful distinction between law-applying and law-creation and that the former is not always the latter. But these points are also pivotal to democratic theory. His case, briefly put, is this: if there is only constant creation of meaning in legal processes, then there is no such thing as applying the (ex ante) law, and law could not fulfil its function of conduct guidance in complex societies. Also, there would be no way that people rule themselves, even through their representatives, for whatever is legislated or democratically created does not (ex ante) determine the results of individual cases. So there could be no real collective autonomy, undercutting democratic legitimacy.
Sandro is discussing law-application not only by officials, but by private law subjects as well. The book is a real learning experience. If you have accepted some of mainstream legal or political thinking, get ready to have several of your received ideas challenged on a sophisticated level. Continue reading "(Almost) Everything You Always Wanted to Know on Legal Theory, Democratic Theory, and their Connection"
Aug 2, 2022 Jaclyn NeoInternational & Comparative Law
When one reads Franz Kafka’s The Trial, one is constantly struck by an uneasy sense of alienation and the weight of dehumanization that arises from the absurdity of the rules-based world that K. finds himself in. The slavish application of those rules by often faceless, compassionless, and definitely empathy-less bureaucrats fills the pages with dread. In this bureaucratic world, the personal is eliminated and replaced by the “tyranny of distance” between individuals and the state. Scholars like Cary Coglianese rightly point to the continuing need for human empathy within the system. In similar vein, Sofia Ranchordás’ new article, Empathy in the Digital Administrative State, captures this dehumanizing condition of bureaucratic distance and situates it within the modern digital context – where digitalization of the bureaucratic state, and the pursuit of efficiency crowds out empathy in administrative decision-making. Her critique is that “[w]hen digital technology is used as an intermediary for rights, law is often automatically applied without any room for empathy, regardless of the circumstances experienced by citizens.” This means that even small errors, which in the past may have been easily corrected or waived by an empathetic bureaucrat, may be amplified in effect under a digitized system which may impose significant (sometimes insurmountable) human costs for rectification.
Drawing from two scandals in the Netherlands and the United States, Ranchordás illustrates how administrative decisions made through algorithms, without the mediation of a human decision-maker, can result in severe injustice, some of which may be irreversible. In the case of the Netherlands, this was a fiasco under its childcare benefits scheme which affected more than twenty thousand families. Drawing on large databases and computational algorithms, the Dutch tax authorities wrongly accused citizens of fraudulently claiming child allowance since 2012. Demands were made for the repayment of tens of thousands of euros, causing severe financial hardship that spiralled into homelessness, divorce, and/or bankruptcy, with some even losing parental rights due to their inability to care for their children anymore. As Ranchordás points out, some of the charges were triggered by minor administrative errors, and what made it worse was that affected citizens were not able to navigate the complex bureaucratic systems or defend themselves before public bodies. Continue reading "Transforming Digital Bureaucracy with Administrative Empathy"
Aug 1, 2022 Christopher J. BuccafuscoIntellectual Property Law
In their new paper, From Trade Secrecy to Seclusion, Charles Tait Graves and Sonia Katyal have performed a monumental service for researchers interested in the ways that firms and governments have leveraged trade secret and confidentiality laws to prevent the disclosure of large swathes of information. I describe Graves and Katyal’s effort as monumental not just for its scholarly value, but also for its breadth (and length). They catalog an enormous variety of “increasingly aggressive attempts to use the law to shield information from the public eye that either does not fall within the traditional, market-competitive ambit of trade secrecy at all, or that faces a strong public interest for at least some degree of disclosure.”
Examples abound, from Merck’s attempts to shield data on the harms of its drug Vioxx, to the unwillingness of manufacturers of voting machines and criminal justice algorithms to share their source code, to employers’ claims that employee diversity and salary data are confidential trade secrets. In these and other examples, Graves and Katyal demonstrate how firms have pushed trade secrecy law beyond its traditional bounds of promoting innovation by preventing unfair competition. Coupled with the considerable deference that the government shows to corporations faced with FOIA requests, these efforts, they argue, are creating an “all-purpose seclusion doctrine.” Continue reading "Synthesizing Seclusion Law"
Jul 29, 2022 David OrentlicherHealth Law
With the Supreme Court’s rejection of a constitutional right to abortion in the United States, it is instructive to look overseas for lessons from other countries that have restricted abortion rights. In a fascinating account, How Abortion Laws Do and Don’t Work, Michelle Oberman considers the Israeli experience and what we might learn from a nation that enacted a criminal ban on abortion in 1977.
In Israel, abortion is a crime unless it is approved by a “pregnancy termination committee.” Each three-person committee must include two doctors and a nurse or social worker, at least one member of the committee must be a woman, and the law specifies grounds upon which the committee may approve an abortion. Such an approach is similar to state laws in the pre-Roe era, and in the new post-Dobbs world, many states have decided to criminalize abortions, with different approaches on exceptions and the process to decide whether a pregnant patient can invoke an exception. Continue reading "Restrictions on Abortion from a Comparative Perspective"
Jul 28, 2022 Albertina AntogniniFamily Law
Who owns one’s body? What kinds of intimate activities generate value? These questions appear in a number of discrete family law subjects, like whether to remunerate housework, or to compensate surrogacy, but they also shape the very existence of family law as a field, defined by opposition to the exchanges that take place in the market. This opposition, it turns out, is illusory: while legal rules construct the family as a site of altruism and affection, they also explicitly and routinely recognize economic exchanges. Indeed, family law is deeply implicated in the project of determining what has quantifiable value, who gets to decide, and who benefits as a result.
Emily Ratajkowski’s My Body provides a nuanced, deeply personal, and unexpectedly moving take on these core questions. Her book — part-memoir, part-cultural critique — struck me as relevant for family law scholars and teachers for its treatment of the gendered ways one can lay claim to one’s body; the precarious boundary between professional and personal relationships, or between “work” and everything else; and the double-edged sword of commodification. Continue reading "Whose Body?"
Jul 27, 2022 Doron DorfmanEquality
One of the most significant questions of recent years is who gets (rather than who should get) a seat at the table, meaning who is allowed to partake in formal decision-making processes on law and policies, specifically when those pertain to minority groups. A recent example of these discussions was the appointment of Justice Ketanji Brown Jackson, the first Black woman to serve on the Supreme Court. Although supporters of this nomination emphasized why “representation matters,” others opposed President Biden’s January 2020 statement that he would nominate a Black woman to the bench to replace Justice Stephen Breyer.
Anna Offit’s recent article, Benevolent Exclusion, discusses the question of representation in decision-making in a context in which lay participation is most often used in the legal realm, that is, trial by jury. The article shines a light on income- and wealth-based juror exclusion describing how “the process by which ordinary people are empaneled as jurors is one that is stacked, at every turn, against the poor.” (P. 625.) With an eye toward intersectionality, Offit points out how despite the elimination of property ownership as a condition to serve on the jury in the 1960s, a policy put in place as a tool to exclude Black people and women, along with legislative efforts such as the Jury Selection and Service Act of 1968, juries today still have a representation problem. Blanket exemptions for caregivers, for example, can result in gender imbalanced venires. And economic biases have been shown to constitute the greatest remaining impediment to Black peoples’ participation on juries. (P. 624.) Continue reading "A Seat at the Table: The Case of Indigent Jurors"
Jul 26, 2022 Christopher SloboginCriminal Law
Sarah Brayne, Predict and Surveil: Data, Discretion, and the Future of Policing (2021).
For those of us law professors who write about policing, sociologists have been a real boon. From the pathbreaking work of scholars like Jerome Skolnick and Michael Brown to the more recent research of Monica Bell and Issa Kohler-Hausmann, these trained observers and interlocutors of human and institutional behavior, who usually obtain much of their knowledge by embedding themselves in the criminal system, have provided law professors with extremely valuable insights about how things actually work. One of the newer sociologists to join this group is Sarah Brayne, an Associate Professor of Sociology at the University of Texas.
In her book Predict and Surveil, Professor Brayne paints a detailed portrait of how the Los Angeles Police Department (LAPD) uses big data and, in doing so, gives us a glimpse of what policing might look like in the future. The third-largest police department in the country, the LAPD has been at the forefront of the move toward predictive policing, the use of fusion centers, programs that compile detailed data about police-citizen interactions, and reliance on private companies to help make sense of all the information collected by police and other agencies. Over the course of five years, Professor Brayne’s research into these practices involved ride-a-longs in patrol cars and helicopters, dialogues with all tiers of the LAPD’s hierarchy, interviews with people in federal agencies and technology firms, deep dives into LAPD archives, and trawling the data the department uses for its investigations. (Pp. 7-8.) Continue reading "The Sociology of Big Data Policing"
Jul 25, 2022 Da LinCorporate Law
Corporate governance debates tend to dismiss “Main Street” individual investors as irrelevant. The traditional archetype of the corporation presumes that individual shareholders are apathetic because they own small stakes and confront collective action challenges. In the modern corporate landscape, individual shareholders are overshadowed by their institutional counterparts, who hold near-majority stakes in most public companies. Stories about individual investors tend to highlight their idiosyncratic goals or their distracting irrationality. Think of Charles Pillsbury, who bought a single share of Honeywell in order to campaign to end Honeywell’s munitions production for the Vietnam War. Or the recent meme stock craze, which was widely reported to be driven by “amateur” investors trading on social media hype instead of corporate fundamentals.
But there are important exceptions to this generalization, as Kobi Kastiel and Yaron Nili remind us in their article, The Giant Shadow of Corporate Gadflies. The article brings to the fore the underappreciated role that “corporate gadflies” play in promoting good corporate governance (at least from a shareholder-centric perspective). Kastiel and Nili describe gadflies as “small, ‘pesky’ individual shareholders who are engaged in the submission of massive numbers of shareholder proposals.” There are just a handful of gadflies in existence today, including William and Kenneth Steiner, John Chevedden, the Rossi family, and the husband-and-wife team of James Ritchie and Myra Young. Continue reading "Not All Retail Investors Are Passive"
