Wednesday, April 20, 2016
Robert Douglas (Labor Arbitrator) and his son Jeffrey Douglas (Melzer, Lipp and Goldstein) just published an important article in the Hofstra Labor and Employment Law Journal which explores the erroneous analysis utilized by Chief Justice Burger in the Griggs v. Power decision. The Griggs Fable Ignored: The Far-Reaching Impact of a False Premise Download Douglas-Final This article is well worth a read.
According to the authors, Chief Justice Burger misinterpreted the fable analogy he utilized in the decision. As the authors state:
In the landmark decision of Griggs v. Duke Power Co., the United States Supreme Court expanded the scope of employment discrimination law under Title VII of the Civil Rights Act of 1964 (Civil Rights Act) by adopting, authorizing, and endorsing disparate impact1 as an independent cause of action in addition to the preexisting disparate treatment theory of discrimination.2 In the critical paragraph in the opinion of the Court, Chief Justice Burger used the fable of The Fox and the Stork as an analogy to explain the Court’s expanded definition of employment discrimination.3 For over forty years, many legal scholars
have analyzed and criticized the Court’s then activist role in creating disparate impact, however, not a single scholar has recognized the importance of examining the Court’s manipulative and incorrect interpretation of the pivotal fable.4 The Chief Justice’s cunning use of the fable enabled the Court to create the legal fiction of disparate impact under the Civil Rights Act.5 In the context of the undetected false premise of Griggs, Congress codified the disparate impact theory in the Civil Rights Act of 1991—twenty years after the Griggs decision.
Mitchell H. Rubinstein
Wednesday, February 24, 2016
Professor Michael Duff (Wyoming Law School) writes to inform us that he has recently posted on SSRN his new piece "Worse than Pirates or Prussian Chancellors: A State's Authority to Opt-Out of the Quid Pro Quo.", 17 Marq. Ben. & Soc. Wel. L. Rev (Summer 2016 Forthcoming). The abstract provides:
Privatization of public law dispute resolution in workplaces has been under intense scrutiny in the context of arbitration. Another kind of workplace dispute privatization is presently underway, or under serious consideration, in several states. In connection with state workers’ compensation statutes, one state has implemented, and others are considering, a dispute resolution model in which employers are explicitly authorized to opt out of coverage. “Alternative benefit plans,” created under such statutes, permit employers to, among other things, unilaterally and without limitation designate private fact-finders, whose conclusions are subject to highly deferential judicial review. This model is arbitration on steroids. While there may be doubts in some quarters about the neutrality of arbitrators, reasonable doubts about the loyalties of an employer-appointed fact-finder are inevitable. Such a design would mark a decisive break with the quid pro quo/Grand Bargain of the early twentieth century, and there is a risk of some states getting caught up in a “race to the bottom,” where states not recognizing a right to a remedy for physical injury become havens of low-cost labor, and thus exert pressure on states that safeguard traditional rights to follow suit. The Supreme Court may be forced to intimate an opinion on the constitutional right to a remedy for personal, and especially physical, injury (whether within or outside of the workplace). The Court has not squarely addressed the issue since 1917, when it decided New York Cent. R. Co. v. White, a case originally upholding the constitutionality of workers’ compensation systems. In White, the Court hinted, but did not clearly establish, that the right to a remedy for physical injury may not be abolished without substitution of a reasonable remedy.
Mitchell H. Rubinstein
Tuesday, November 17, 2015
On Friday, November 2o, the Ohio State Law Journal is hosting "The History and Future of Election Law." According to their website:
There will be four panels: (1) The History and Future of Redistricting and Gerrymanders, (2) The History and Future of Campaign Finance, (3) The History and Future of Voting Rules and (4) The History and Future of Election Law Generally.
New York University Law Review, Volume 90, No. 4, includes articles and essays from the symposium, "Testing the Constitution," including:
- Forward: Testing the Constitution (Lee Epstein, Barry Friedman & Geoffrey R. Stone)
- Testing Shaw v. Reno: Do Majority-Minority Districts Cause Expressive Harms? (Stephen Ansolabehere & Nathaniel Persily)
- Rhetoric and Reality: Testing the Harm of Campaign Spending (Rebecca L. Brown & Andrew D. Martin)
- Measuring That Chilling Effect (Brandice Canes-Wrone & Michael C. Dorf)
- The Decision to Depart (or Not) From Constitutional Precedent: An Empirical Study of the Roberts Court (Lee Epstein, William M. Landes & Adam Liptak)
- Testing the Marketplace of Idea (Daniel E. Ho & Frederick Schauer)
- Litigating State Interests: Attorneys General as Amici (Margaret H. Lemos & Kevin M. Quinn)
- Student Notes and Comments
The University of Illinois Law Review, Volume 2015, No. 5, features a symposium, "Choice-of-Law Methodology: Fifty Years After Brainerd Currie," and other articles:
- Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements (A. Michael Froomkin)
- Re-Assembling Labor (Marion Crain, John Inazu)
- The Choice-of-Law Revolution Fifty Years After Currie: An End and a Beginning (Symeon C. Symeonides)
- Multistate Justice: Better Law, Comity and Fairness in the Conflict of Laws (Joseph William Singer)
- Remembering Brainerd Currie (Herma Hill Kay)
- Hard Cases, Single Factor Theories, and a Second Look at the Restatement 2D of Conflicts (Lea Brilmayer)
- A Radically Transformed Restatement for Conflicts (Louise Weinberg)
- Eurpoean Conflicts Law After the American "Revolution" - Comparative Notes (Peter Hay)
- Student Notes.
The University of Pennsylvania Law Review, Volume 164, No. 1, includes:
- A National Study of Access to Counsel in Immigration Court (Ingrid V. Eagly and Steven Shafer)
- Toward a Pigouvian State (Jonathan S. Masur and Eric A. Posner)
- Anti-Trust in Zero-Price Markets: Foundations (John M. Newman)
- Time to Drop the Infield Fly Rule and End a Common Law Anomaly (Andrew J. Guilford and Joel Mallord)
- Student Comments
Thursday, November 12, 2015
Harvard Law Review, Volume 129, No. 1, features The Supreme Court 2014 Term, including:
- Does the Constitution Mean What it Says (David A. Strauss)
- Imperfect Statutes, Imperfect Courts: Understanding Congress's Plan in the Era of Unorthodox Lawmaking (Abbe R. Gluck)
- Zivotofsky II as Precedent in the Executive Branch (Jack Goldsmith)
- A New Birth of Freedom?: Obergefell v. Hodges (Kenky Yoshino)
- Leading Cases
The Harvard Law Review Forum includes responses from Richard H. Fallon, Richard T. Lazurus, Hon. Richard A. Posner and Lawrence Tribe.
Northwestern University Law Review, Volume 109, N0. 4, includes:
- Purposivism in the Executive Branch: How Agencies Interpret Statutes (Kevin M. Stack)
- Remote Adjudication in Immigration (Ingrid M. Eagley)
- Student Notes and Comments
Saturday, October 31, 2015
South Texas Law Review, Volume 56, No. 3 (Spring 2015) includes:
- The Limits of Consent: Voluntary Dismissals, Appeals of Class Certification Denials, and Some Article III Problems (William P. Barnette)
- Just Visiting: Health Care Liability Claims and Nonpatient Injuries in a Health Care Setting (Brandon Beck)
- Licensed to Steal: Texas Private Property Towing Regulation and Consumer Remedies (Brian E. Walters, David M. Walters, Jennifer Shamas)
- Everything is Presumed in Texas: Analyzing teh Application of the Presumption Against Preemption (Benjamin Walther)
Yale Law Journal, Volume 125, No. 1 (October 2015) includes:
- Against Immutability (Jessica A. Clarke)
- The President and Immigration Law Redux (Adam B. Cox & Cristina M. Rodríguez)
- Which Way to Nudge: Uncovering Preferences in the Behavioral Age (Jacob Goldin)
- Student Notes, Comments
Thursday, October 29, 2015
Friday, October 23, 2015
Fordham Law Review, October 2015 (Vol. 84, No. 1) includes six articles by Fordham faculty on the United States Supreme Court's June 2015 Obergfell v. Hodges decision and other articles:
- Perspectives on Marriage Equality and the Supreme Court (The Editors)
- The Power of Dignity (Elizabeth B. Cooper)
- Obergefell's Conservatism: Reifying Familial Fronts (Clare Huntington)
- Roberts, Kennedy and teh Subtle Differences that Matter in Obergefell (Joseph Landau)
- Hail Marriage and Farewell (Ethan J. Leib)
- Race, Dignity, and the Right to Marry (R. A. Lenhart
- Up from Marriage: Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage Equality (Catherine Powell)
- Procedural Triage (Matthew J. B. Lawrence)
- The Sum of its Parts: The Lawyer-Client Relationship in Initial Public Offernings (Jeremy R. McLane)
- Student Notes
The New York Journal of Law & Business (Vol. 11, No. 4) includes:
- Proceedings of the 2014 Fall Conference: The Future of Class Action Litigation: A View from the Consumer Class
- Introductory Note (Peter L. Zimroth)
- Welcoming Remarks (Zimroth, Dean Trevor W. Morrison)
- Panel 1: The Current State of Consumer Class Action
- Panel 2: Reforming the Consumer Class Action
- Panel 3: Alternatives to the Consumer Class Action
- Panel 4: Roundtable Discussion: Consumer Class Actions and the Future of the Class Action
- Panel 5: Keynote Address: The Hon. Alex Kozinski, Chief Judge, U. S. Court of Appeals for the Ninth Circuit.
- Article: An Empirical Look at Consumer Class Actions (Brian T. Fitzpatrick & Robert C. Gilbert
- Student Comments
Virginia Law Review, October 2015 (Vol. 101, No. 6) includes:
- Patent Trolls and Preemption (Paul R. Gugliuzza)
- Corporate Inversions and the Unbundling of Regulatory Competition (Eric L. Talley)
- Taming Title Loans (Ryan Baasch)
Thursday, October 15, 2015
Jason Mazzone at Balkinization reports a call for papers for a two-day symposium to be held in april 2016, titled, "Constitutional History: Comparative Perspective." The symposium is sponsored by the University of Illinois Law Review and others. Click here for Mazzone's full post.
Wednesday, October 14, 2015
Tuesday, October 13, 2015
California Law Review, Volume 103, No. 5, (October 2015) includes:
- Waiving Disqualification: When Do Securities Violators Receive a Reprieve? (Urska Velikonja);
- Stare Decisis in the Second-Best World (Randy J. Kozel);
- Regulating Sex Work: Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor (Adrienne D. Davis); and
- Marital Supremacy and the Constitution of the Nonmarital Family (Serena Mayeri); and
- Two Student Comments.
Georgetown Law Journal, Volume 103, No. 6, includes:
- Cognative Cleansing: Experimental Psychology and the Exclusionary Rule (Avani Mehta Sood);
- Admin (Elizabeth F. Emens);
- Patent Conflicts (Tejas N. Narechania); and
- Three Student Comments.
Michigan State Law Review, Volume 2015, No. 2, includes articles from a symposia on net neutrality, including:
- Is There Anything New to Say About Network Neutrality? (Adam Candeub);
- Aereo: From Working Around Copyright to Thinking About Cable Box (Annemarie Brady);
- Aereo and the Problem of Machine Volition (Bruce E. Boyden);
- Defining the Limits of the Application of the Statutory Experimental Use Exception Within the Agricultural Biotechnology Industry (Jennifer Carter-Johnson);
- Agricultural Biotechnology: Drawing on International Law to Promote Progress (J. Janewa Osei-Tutu);
- Regulatory Competitive Shelters as Incentives for Innovation in Agrobiotech (Yaniv Heled)
- Living with Monsanto (Daryl Lim);
- Net Neutrality: Something Old; Something New (Justin (Gus) Hurwitz);
- The Risks and Rewards of Network Neutrality Under Sec. 706 (John Blevins);
- What's New in the Network Neutrality Debate (Rob Frieden);
- Patent Pledges: Between Public Domain and Market Exclusivity (Jorge L. Contreras);
- The Right to Innovate (Andrew W. Torrence & Eric von Hipple);
- Incongruities of Real and Intellectual Property: Economic Concepts in Patent Policy and Practice (Thomas D. Jeitschko); and
- Leaps, Metes, and Bounds: Innovation Law and its Logistics (James Ming Chen).
South Texas Law Review, Volume 56, No. 2, includes:
- Challenging Class Certification at the Pleading Stage: What Rule Should Govern and What Standard Should Apply? (Timothy A. Daniels);
- To Quote or Not To Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda (Maureen Johnson); and
- Law Firm Copying and Fair Use: An Examination of Different Purpose and Fair Use Markets (D. R. Jones).
- Three Student Comments
Monday, October 12, 2015
There are three law review symposia being held this week -- two in Detroit and one in Manhattan (NY). They are:
On Thursday, October 15, the Cardoza Law Review is hosting "Ten Years the Chief: Examining a Decade of John Roberts on the Supreme Court" at the law school campus. The symposia includes four panels covering John Roberts and Constitutional Interpretation, John Roberts and the Judicial Process, The Administrative Role of the Chief Justice, and John Roberts and Statutory Interpretation. For more information, including how to RSVP, click here.
The Wayne Law Review will host its Fall Symposium, "Corporate Counsel as Gatekeepers" at the law school campus in midtown Detroit. The symposium includes an in-house counsel panel, an academic panel and a practitioner panel. Tony West, former associate U.S. attorney general and general counsel for PepsiCo, is scheduled to provide the keynote address. For more information, click here.
Also, the Detroit Mercy Law Review is hosting its Fall Symposium, "The Public Trust Doctrine: An Ancient Tool for Protecting the Great Lakes from New Hazards" at the law school's campus in downtown Detroit. The law review's website shows six participants on the program.
Monday, September 28, 2015
The New York Law School Law Review is hosting a symposium, "Storming the Court: 25 Years After H. C. C. v. Sale" on October 16 at the law school's Events Center. This description comes from the Law Review's website:
In the early 1990s, well before the War on Terror, Guantanamo Bay served as a detention camp for three hundred HIV-positive refugees who had fled a military coup in Haiti. In a remarkable human rights case chronicled in the book Storming the Court (Scribner) by Brandt Goldstein, law students at Yale and their professor, Harold Koh – himself the son of refugees – sued the U.S. government for the Haitians’ freedom. The case, which ultimately involved Kenneth Starr, the Justice Department, the Pentagon, and Presidents George H.W. Bush and Bill Clinton, went to trial in federal court in Brooklyn, resulting in the Haitians’ release – and the first ruling in history that aliens held at Guantanamo are entitled to constitutional due process.
Almost 25 years later, with Guantanamo still looming large in the legal and foreign policy landscape, this symposium brings together the judge in the case, the Honorable Sterling Johnson, Jr. (E.D.N.Y.), as well as Professor Harold Koh (former Legal Adviser at the State Department), government attorneys, human rights lawyers and advocates, private practitioners, and seven of the most prominent former students (now all human rights advocates, lawyers and/or academics themselves) to explore the enduring impact of this extraordinary litigation.
Monday, September 14, 2015
The Minnesota Law Review will host its Fall Symposium, "Standing on the Shoulders of Giants: Celebrating 100 Volumes of the Minnesota Law Review," on October 2 at Walter F. Mondale Hall on the law school campus. Daniel Farber (Cal-Berkeley) will give the keynote address. Symposium topics include "The Right to Counsel," "Strict Liability," "The Fourth Amendment," and "Critical Race Theory and the Supreme Court." Click here for more information.
Tuesday, September 8, 2015
University of Illinois Law Review has published an online symposium with four essays in response to Alexander Tsesis's book, Free Speech Constitutionalism. The essays are collected in the most recent issue of the journal's online companion, Slip Opinions. Contributors are Mark A. Graber, David S. Han, Helen Norton and Margot E. Kaminsky.
Sunday, September 6, 2015
Friday, September 4, 2015
Richard Carlson (South Texas) has posted, "A Child's Right to a Family versus a State's Right to Institutionalize the Child," on SSRN. Carlson's article explores tension in the United Nations Convention on the Rights of the Child between institutionalization and family placement as options for children without parents or guardians. Carlson acknowledges the Convention adopts a "child's best interest" standard toward placement and embraces the benefits of raising children in a "family environment." However, Carlson argues that the Convention's grant of broad discretion to states to institutionalize children, "cannot be squared with a 'child’s best interests,' the 'family environment' ideal or modern child development theory.
Carlson's abstract reads:
Convention on the Rights of the Child (CRC), declares that a child has the right to be raised in a "family environment." Nevertheless, the CRC grants states the discretion to institutionalize children who are without functioning families. States have this discretion because the CRC does not require states to arrange, facilitate, or even allow for child placement in a permanent, substitute family. In this article, I describe this contradiction in international law -- a child's right a family environment versus the state's discretion to institutionalize the child -- and I explore the possible reasons for the contradiction. A chief reason for the contradiction is anxiety about intercountry adoption. I propose some ways to resolve the contradiction and to pave the way for the creation of a true right to a family, including by placement in a permanent substitute family.
Thursday, September 3, 2015
Cass Sunstein (Harvard) has posted his essay, "In Praise of Law Reviews (And Jargon-Filled, Academic Writing)," on SSRN. The abstract reads:
Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”
Sunstein's essay is forthcoming in the Michigan Law Review.
Friday, July 24, 2015
Professor Cynthia Bond writes to request that law professors answer a survey about popular culture in the law school classroom. A cover letter from Professor Bond and a link to her survey are below.
Mitchell H. Rubinstein
Greetings Law Teacher Colleagues:
I am working on an article this summer on uses of popular culture in the law school classroom. I am defining popularculture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).
To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area. If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:
Thanks in advance for your time and have a wonderful rest of summer!
The John Marshall Law School
Wednesday, May 13, 2015
I am fascinated how new technology challenges existing legal and judicial ethics rules and canons. An article forthcoming in University of Illinois Law Review, written by Eric Goldman and Angel Reyes, III titled, "Regulation of Lawyers’ Use of Competitive Keyword Advertising" addresses just such an issue. Here is the abstract:
Lawyers have enthusiastically embraced search engine advertisements triggered by consumers’ keywords, but the legal community remains sharply divided about the propriety of buying keyword ads triggered by the names of rival lawyers or law firms (“competitive keyword advertising”). This Essay surveys the regulation of competitive keyword advertising by lawyers and concludes that such practices are both beneficial for consumers and legitimate under existing U.S. law - except in North Carolina, which adopted an anachronistic and regressive ethics opinion that should be reconsidered.
The article is available at SSRN here. Josh King, blogging at Socially Awkward, describes competitive keyword advertising this way: "1. “Buy” the name of your competitor from Google.; 2. When potential clients search Google for that competitor, your ad appears. 3. Profit!!" That's easier to understand, I guess, though I imagine there must be something more between steps 2 and 3.
Hat Tip to Carolyn Elfant at My Shingle, who offers her own take on the practice.