May 3, 2022 Taisu ZhangLegal History
In more ways, than one, Henry Smith’s Equity as Meta-Law is an awkward fit for JOTWELL: the site, as I have long understood it, has an implicit focus on the work of emerging scholars, not very well-established ones. Moreover, the article does not easily fit into any of the subfields that JOTWELL disaggregates legal scholarship into: on the one hand, while there is quite a bit of legal history in the article, its ultimate goals are arguably more normative than explanatory or descriptive. On the other hand, it is much more historically oriented than mainstream jurisprudence, including mainstream law and economics theory. Substantively, its subject matter—equity—inevitably takes it on a tour of multiple legal domains, ranging from property to torts to contracts to procedure, but commits it to none. The best categorization of the article is probably “private law theory,” but there is no JOTWELL classification for that.
Nonetheless, the article deserves some discussion in these (web)pages simply because it is probably the most important article on private law to come out in the past few years, and will likely set the stage for numerous rounds of discussion and extrapolation in the years to come. It is one of those foundational articles that only come around once every so often. Continue reading "Meta-Law Institutions and Substantive Predictability"
May 2, 2022 Maris KöpckeJurisprudence
Perhaps it was the French Revolution that set it free. Since then, it haunts constitutional thought. It lures writers through a dubious promise of democratic credentials. It looms large in recent accounts of constitutional legitimacy. They have sought to “domesticate” (Pp. 796, 803; also P. 810) the beast by subjecting it to liberal and democratic constraints. But the beast resists such domestication, argues the paper. Appeal to constituent power as the source of constitutional legitimacy is deeply at odds with constitutionalism’s commitments to rights and the rule of law. One cannot both have the cake and eat it. It is either will or reason at the foundations of law. Such is the tension the author confronts us with.
This rich and insightful piece elicits reflection on a host of fundamental questions of legal and political theory. It will interest you whether you are concerned with the limits of democracy, the bootstrapping character of basic legal rules, principles of constitutionalism, or even the nature of self-determination and autonomy. It is accessible without specialist knowledge of constitutional theory. The work is more revolutionary than its title suggests. Crudely put, “Inherent Constraints on Constituent Power” argues that there are no inherent constraints on constituent power, and provides reason to think that there is no constituent power either. Let me explain. Continue reading "The Beast of Constituent Power"
Apr 29, 2022 Christophe GeigerIntellectual Property Law
Do you believe in the human heart? I don’t mean simply the organ, obviously. I’m speaking in the poetic sense. The human heart. Do you think there is such a thing? Something that makes each of us special and individual?” This is a question put to Klara, the narrator of Kazuo Ishiguro’s novel Klara and the Sun, who is an “artificial friend”—an artificial intelligence (AI)-operated android- that, in a not-too-distant future imagined by the Nobel Prize winner for literature, is meant to replace companions for children.
This philosophical question also lies at the heart of the question of the protectability by copyright of AI-generated outputs: Is there something in the human creative process that makes it unique and different from any output generated by a machine? And is the copyright system apt to incentivize and reward these moments of genius that generate new creative works and induces cultural enrichment?
In their article Copyright and Artificial Creation: Does EU Copyright Law Protect AI-Assisted Output?, Bernt Hugenholtz and Joao Pedro Quintais of the Institute for Information Law at the University of Amsterdam try to address this crucial issue from the perspective of the legal framework for copyright protection in the European Union (EU). Continue reading "The Role of Human Creativity in the Copyrightability of Artificial Intelligence-Generated Works"
Apr 28, 2022 Michael Z. GreenWork Law
Veronica Root Martinez and Gina-Gail S. Fletcher as co-authors of a Yale Law Journal Forum essay, Equality Metrics, as well as Katrina Lee as an author of a Denver Law Review article, Discrimination as Anti-Ethical: Achieving Systemic Change in Large Law Firms, have 2021 papers that offer excellent reads and make important contributions to the discussion of ways to evaluate and hold employers accountable for their diversity commitments to their employees. In recognizing that employers have a responsibility to deliver results in response to their diversity commitments, the paper by Martinez & Fletcher and the paper by Lee both focus on transparency and accountability by seeking measurable means to determine diversity successes in the workplace.
Martinez and Fletcher focus on corporate entities of all types and Lee focuses on law firms. Both employer groups responded with increased diversity commitments and training efforts in support of the Black Lives Matter movement when heightened concerns about systemic racism arose after the senseless killing of George Floyd in July 2020. With the resulting backlash toward workplace diversity training after an Executive Order by President Trump and related initiatives, the importance of measuring diversity consequences became a key issue for 2021 that both papers seek to address. Continue reading "Employer Accountability for Diversity Measures in a Time of Racial Reckoning"
Apr 27, 2022 Mathilde CohenInternational & Comparative Law
E. Tendayi Achiume,
Racial Borders, __
Geo. L. J. __ (forthcoming, 2022), available at
SSRN.
If you are a citizen of North America, Europe, Australia, or New Zealand, chances are that before the onset of the pandemic you rarely had to think twice before crossing a border. Armed with your passport and a smile, the world was wide open to you. Yet, since March 2020 you may have encountered for the first time what it means for a border to be closed—or barely open—to you. E. Tendayi Achiume’s pathbreaking new Article, Racial Borders, powerfully evinces how this experience is racialized given the asymmetry between the hyper-mobility of some compared to the enforced immobility of the majority of the world’s population, as echoed in the bell hooks quote wrapping up her analysis, “[f]rom certain standpoints, to travel is to encounter the terrorizing force of white supremacy.” Achiume concludes by emphasizing that the issue of racial borders is not primarily an immigration problem but rather one that implicates our international legal order and its fundamental inequities.
What is a national border? What is a territorial border? Achiume uses “the term ‘racial borders’ to refer to territorial and political border regimes that disparately curtail movement (mobility) and political incorporation (membership) based on race and sustain international migration and mobility as racial privileges.” Continue reading "Borders and Race as Intertwined Forms of Exclusion"
Apr 26, 2022 Emma CaveHealth Law
Law and Legacy in Medical Jurisprudence: Essays in Honour of Graeme Laurie, edited by Edward Dove and Niamh Nic Shuibhne, includes 18 essays that explore legacy in its various forms, and in various contexts, drawing on the many impacts and innovations to date of medical jurisprudence pioneer, Graeme Laurie.
The volume does three things particularly well. Firstly, it serves as a Festschrift honouring a great scholar. Laurie recently stepped down from the Chair of Medical Jurisprudence at the University of Edinburgh to pursue other projects. His intellectual legacy is profound, and whilst he has written on almost every medical law issue he is particularly well known for his work on liminality, human tissue, genetic privacy and information governance, and his co-authored text book on medical law. His contribution to the next generation of scholars is equally impressive, and fortunately is set to continue in his role of Professorial Fellow. Continue reading "Laurie’s Legacy"
Apr 25, 2022 Kaiponanea MatsumuraFamily Law
Jeffrey Rachlinski and Andrew Wistrich begin their article, Benevolent Sexism in Judges, with an epigraph that, in its pithiness, cannot be improved upon: “The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.” Perhaps the most infamous proof of this claim can be found in Justice Joseph Bradley’s concurring opinion in Bradwell v. Illinois, which points to “the natural and proper timidity and delicacy which belongs to the female sex,” as well as her “paramount destiny . . . to fulfil the noble and benign offices of wife and mother,” as reasons to deny Myra Bradwell a license to practice law in Illinois. The stereotypes that women are natural caregivers, more nurturing and attentive to their children than men, persist to this day, undergirding unequal treatment in the workplace, burdening nonconforming individuals, and discounting efforts of men who are excellent parents.
In some instances, however, these same stereotypes may favor women. Rachlinski and Wistrich set out to test this phenomenon, which they term “benevolent sexism.” They study whether judges are affected by gender bias in two contexts where women regularly experience better outcomes than men: child custody disputes and criminal sentencing. Judges are supposed to be impartial in their decisions and are typically forbidden from relying on gender when determining outcomes. The confirmation of gender bias would therefore be an important (albeit unsurprising) finding. Continue reading "Judging in the Shadow of Gender"
Apr 22, 2022 Martha ErtmanContracts
Fred O. Smith, Jr.’s complex and ambitious article On Time, (In)Equality, and Death wakes us up to what we owe the dead, especially the dead who have suffered mass, systemic horrors such as slavery. The article dexterously ties a relatively niche doctrinal area — legal rights and duties regarding dead bodies — to the monumental and pressing question of what we who live owe to the dead and their descendants. His core contention is that the living act as trustees for the dead, not just as individual embodiments of their lineal relations. Moreover, we violate our duty as trustees when we fail to hold and curate society’s collective memory to also honor evolving norms of equality and anti-subordination.
Bottom line: Our generation is complicit in harms of past generations unless we recognize and remedy mass horrors. While he discusses harms caused by both slavery and the colonization of Indigenous peoples, this Jotwell piece focuses on slavery. Continue reading "Debt(s) We Owe the Dead as Reparations"
Apr 21, 2022 Maneesha DeckhaEquality
If pressed to answer the question “Why are humans equal?” or “What grounds our equality in liberal legal orders?”, the answers might run from the circular (“our common humanity”), to the sacred and unprovable (“human dignity”), to the universally posited but untrue (“our capacity to reason”). Despite the dissatisfying nature of these conventional responses, many of us do persist in believing in human equality and also approve of its exalted conceptual stature in our legal systems. Yet, if we take a closer look at equality’s Lockean foundations in the common law, as Jishnu Guha-Majumdar would have us do in his novel article, Lyons, and Tygers, and Wolves: Oh My!: Human Equality and the “Dominion Covenant” in Locke’s Two Treatises, we might have to question the presumed benign nature of the idea of human equality. Guha-Majumdar asks us to consider that our equality jurisprudence, derived as it still is from Locke’s liberal humanism, is premised on something highly unequal, and indeed violent and tyrannical: the domination of nonhuman animals.
The title of Guha-Mujamdar’s article evokes a scene in the 1939 Hollywood film classic, The Wizard of Oz where Dorothy, the Scarecrow, and the Tin Man link arms and chant a verse (“Lions, and tigers, and bears! Oh My!”) to express their fear of who they may encounter as they make their way through a dark forest on their way to Oz. Of course, the lion they do end up meeting is soon exposed as lacking the courage seen by humans to be characteristic of male lions to do anyone harm; this is then one of the character “flaws” that propel the foursome onward to ask the Wizard for help (with Toto, of course, alongside them). The verse though reminds us of the threat posed by “predator” animals. It is this threat that Guha-Majumdar claims gives rise to “a dominion covenant” between all humans, God, and nonhumans that is central to Lockean liberalism. Continue reading "Equality’s Animal Problem: Normalizing Domination and Enabling Racism with Locke"
Apr 20, 2022 Aziza AhmedCriminal Law
In a moment when mass incarceration, police reform, and abolition are dominating national headlines, Aya Gruber’s book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, takes on one of the most complicated questions of the politics of policing and incarceration: gender violence. Her book provides a history of the uncomfortable relationship between the carceral state and feminist organizing to end violence against women. And, it offers a path forward that begins to address mistakes of the past by reigniting those modes of feminism focused on poverty, welfare, and race that were sidelined with the rise of what is now called “carceral feminism.”
Gruber begins her book by connecting the dots between the anti-sexual violence activism of the 19th century and today. In doing so, Gruber centers the role of race in structuring how imaginaries of sexual exploitation and violence occur. The voices of dominant groups (including white feminists) constructed the larger social narrative of sexual violence. Their ideas of sexual exploitation were shaped by the racialized ideas undergirding the political economy of the time, including the anti-immigrant sentiments of Chinese exclusion and the racist ideologies wrapped into slavery. Continue reading "Recovering Feminist Lessons from the Past for a Less Carceral Future"
