Law Commons^™

Care Work, Gender Equality, And Abortion: Lessons From Comparative Feminist Constitutionalism, Linda C. Mcclain

Faculty Scholarship

Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It (2023).

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment …

Beyond More Accurate Algorithms: Takeaways From Mccleskey Revisited, Ngozi Okidegbe

Faculty Scholarship

McCleskey v. Kemp¹ operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration.² By restricting the use of statistical evidence in equal protection challenges, McCleskey stifled the power of the discriminatory intent doctrine to combat the colorblind racism emanating from facially neutral criminal law statutes and governmental actions.³ But what if McCleskey had been decided differently? Given that Washington v. Davis⁴ held that the challenged law or governmental action had to be “traced to a discriminatory racial purpose,”⁵ could McCleskey have articulated an approach to equal protection doctrine …

The Role Of Departments In The Design Of The Federal Government, Jack M. Beermann

Faculty Scholarship

Reviewing Blake Emerson,The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller, 38 Yale J. Reg. 90 (2021)

Adherents to the unitary executive theory, which posits that the Constitution grants the President complete and absolute control over the execution of the law, claim that their view is required by the text of the Constitution, especially Article II’s vesting clause which proclaims that the “Executive Power shall be vested in a President of the United States of America.” As Justice Scalia put it, “this does not mean some of the executive power, but all of the …

Four Privacy Stories And Two Hard Cases, A Comment On Skinner-Thompson's Privacy At The Margins, Jessica Silbey

Faculty Scholarship

Scott Skinner-Thompson's new book, Privacy at the Margins, is what I would call a "fourth-generation" study of privacy law. Privacy's contours and justifications have been debated over the course of the twentieth century, first to establish it as a matter deserving legal protection (roughly the first half of the twentieth century), ² then to iterate its various common law and constitutional variations (starting in the 1960s), ³ and since the computer and internet revolution of the 1990s, to reevaluate privacy's growing importance but waning presence in the digitally-networked age.⁴ The third-generation of privacy scholarship has been a fast-growing area …

Nondelegation And Originalism, Jack M. Beermann

Faculty Scholarship

Originalism certainly isn’t what it used to be. From a fringe theory with few adherents it has, in recent decades, become the dominant conservative legal weapon deployed against nearly every liberal legal development since the dawn of the twentieth century, particularly the acceptance of the administrative state and the delegation of rulemaking power to agencies. Professor Kurt Eggert’s recent article adds to the mounting evidence that originalism is not a credible legal theory especially when deployed against Congress’s choices concerning the proper structure of the regulatory state.

Recovering Feminist Lessons From The Past For A Less Carceral Future, Aziza Ahmed

Faculty Scholarship

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 Bi-Partisan Enabling Of Presidential Power: A Review Of David Driesen's The Specter Of Dictatorship: Judicial Enabling Of Presidential Power (2021), Jed Handelsman Shugerman

Faculty Scholarship

In "The Specter of Dictatorship: Judicial Enabling of Presidential Power," David Driesen questions the unitary executive theory and other doctrines of unchecked executive power. He offers primarily a critique of purposivism, a mix of original public meaning and more recent history illuminating those purposes: the Founders’ anti-tyranny purpose and then the rise of European tyranny from Nazi Germany to contemporary Hungary, Turkey, and Poland.

This review first focuses on Driesen’s approach to Congress: He identifies the broad congressional delegation of powers to the president as a source of expansive executive power, but he does not entertain that doctrines of deference …

Corporate Personhood And The History Of The Rights Of Corporations: A Reflection On Adam Winkler’S Book We The Corporations: How American Businesses Won Their Civil Rights, Jack M. Beermann

Faculty Scholarship

Adam Winkler’s book We the Corporations: How American Businesses Won Their Civil Rights is an impressive work on several different levels. Because so much of the development of American constitutional law over the centuries has involved businesses, the book is a nearly comprehensive legal history of federal constitutional law. It certainly would be worthwhile reading for anyone interested in the constitutionality of economic regulation in the United States, spanning the controversies over the first and second Banks of the United States, through the Lochner era and present-day clashes over corporate campaign spending, and religiously-based exemptions to generally applicable laws such …

The Role Of The Courts In Creating Racial Identity In Early New Orleans, Jack M. Beermann

Faculty Scholarship

Reviewing Kenneth R. Aslakson, Making Race in the Courtroom: The Legal Construction of Three Races in Early New Orleans (New York University Press 2014).

The racial history of New Orleans is unique among American cities, as is Louisiana's among the history of American states. In the antebellum period, there were more free people of color in New Orleans than in any other city in the South, and free people of color lived, and often prospered, throughout Louisiana. The presence of so many free people of color in New Orleans, and Louisiana more generally, arose from many factors, including the consequences …

Book Review: The Color Of Our Shame: Race And Justice In Our Time, By Christopher J. Lebron, David B. Lyons

Faculty Scholarship

Ideal theory seeks to identify the basic conditions of social justice but does not tell us how to achieve them. Christopher Lebron’s important new book The Color of Our Shame is a philosophically enterprising venture in non-ideal theory, suggesting how we might bring about racial equality in America. A reader who is passingly familiar with civil rights developments of the 1950s and 1960s might imagine that racial inequality is a disappearing vestige of past discrimination; so an essential step in Christopher Lebron’s argument is to establish that racial inequality remains a grave issue half a century later. That task is …

Looking For Mr. (Or Ms.) Rights, Jack M. Beermann

Shorter Faculty Works

I am on the prowl. It’s 1 a.m. and I’ve been looking for Mr. (or Ms.) Rights all night. I’ve been hanging out in every Article of the Constitution of the United States and I have been deep into the pages of the United States Reports and the Federal Reporter. Oh, I have found plenty of negative rights, like the right to be free from cruel and unusual punishment and the right not to be twice placed in jeopardy for the same criminal act. But I need something more positive in my life. I want those things that make a …

Internalizing The Costs Of Employment Law Violations, Michael C. Harper

Faculty Scholarship

David Weil’s new book on the fragmenting of internal labor markets in many American industries, The Fissured Workplace, should be read by all who wish to understand how the challenges to enforcing laws designed to protect American workers have become greater as the institutional structures and processes through which American businesses produce and deliver goods and services have continued to evolve. This book should be read not primarily because President Obama last year nominated Weil, a Boston University School of Management Professor, to head the Wage and Hour Division of the Department of Labor or because the book includes several …

The Uncertain Impact Of Wal-Mart V. Dukes, Michael Harper

Faculty Scholarship

It has been less than two years since the Supreme Court’s controversial decision in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). During this short period the Court’s opinion has been interpreted by numerous lower courts. It also, not surprisingly, has been the subject of a substantial amount of commentary in law reviews and numerous proposals for legislative reform to restore a promise of class action challenges to employment discrimination that the Dukes decision allegedly shattered. Drawing from this commentary, I would choose these two very different articles as useful guides for tracking the impact of Dukes on employment discrimination class …

Placing British Employment Law In Context, Michael Harper

Faculty Scholarship

It is probably fair to generalize that the best American legal scholarship in the fields of labor, employment, and employment discrimination law has found little inspiration in the study of comparative law. Hugh Collins’s analytic and insightful but succinct overview of British employment law — republished in 2010 in a second edition to account for significant developments in response to European Union law — should teach any perceptive American reader that this need not be the case. This two hundred sixty page volume demonstrates that studying how other developed countries have addressed common issues presented by the employment relationship …

The Politics Of Medicaid, Nicole Huberfeld

Faculty Scholarship

Medicaid is the word on everyone's lips, not only because of the budgetary crisis many states are suffering, but also because the Supreme Court will decide two major cases regarding Medicaid this term, each of which has the potential to significantly alter the course of this long-standing safety net as well as the constitutional principles undergirding the program. Medicaid is a federal program that was intended to mainstream the very poor into the healthcare system by providing states with matching federal funds for particular expenditures on and provision of medical care. Without Medicaid, tens of millions of Americans would be …

Conceptualizing Disability Discrimination, Michael C. Harper

Faculty Scholarship

In a series of law review articles written over the past decade, Professor Bagenstos has established himself as the preeminent academic voice on disability discrimination law. Indeed, the transferable utility of the conceptual insights developed and applied in these articles, in my view, warrants a claim for Bagenstos as the most important scholar of the decade in the general field of employment discrimination law. Anyone with a serious intellectual interest in discrimination law who has not read Bagenstos’s articles should take the occasion of the publication of this pithy and trenchant little volume to familiarize themselves with Bagenstos’s analysis of …

Review Of Outlawed Pigs: Law, Religion, And Culture In Israel, Pnina Lahav

Faculty Scholarship

In "Safe Treyf' (http://soc.qc.cuny.edu/Staff/levine/SAFE-TREYF.pdf), Gaye Tuchman and Harry G. Levine explain how Chinese Food helped New York Jews overcome the Jewish Taboo on eating pork. Chinese Food "disguises the tabooed ingredients by cutting, chopping, and mincing them.... [It] could be adopted by rebellious Jews because the forbidden substances were so disguised that dishes did not reflexively repulse and so undermine their ability to rebel." Daphne Barak-Erez, a professor at the faculty of law at Tel Aviv University, has written a fine book in which she looks at the history of the pork taboo-but from the perspective of Israeli Jews.

This …

Reviews In Medical Ethics: Stumbling On Options: A Review Of Readings In Comparative Health Law & Ethics, Frances H. Miller

Faculty Scholarship

Thanks to a series of storms sweeping up the eastern seaboard for three days, I found myself with four fivehour flight delays and two completely unrelated books in my briefcase. One of the books was the second edition of Professor Tim Jost's Readings in Comparative Health Law & Ethics,' which I was reviewing for this publication. The second was Daniel Gilbert's Stumbling on Happiness,² which someone - no doubt thinking I could use a little wisdom on the subject - had given me for my birthday. I did not mind the delays, for they gave me time …

The U.S. Supreme Court And Medical Ethics: From Contraception To Managed Health Care, George J. Annas

Faculty Scholarship

Review of The U.S. Supreme Court and Medical Ethics: From Contraception to Managed Health Care (2004) by Bryan Hilliard

Insecure Retirement Income, Wrongful Plan Administration And Other Employee Benefits Woes -- Evaluating Erisa At Age Thirty, Maria O'Brien

Faculty Scholarship

Book Review of The Employee Retirement Income Security Act of 1974: A Political History by James A. Wooten.

Goeres and the many other recent cases like it¹⁰ are remarkable after Mertens and Great West, both for the persistence of the ERISA plaintiff's bar in trying to find ways to obtain make-whole relief in egregious cases and for the continued refusal of Congress to amend ERISA to provide adequate make-whole remedies."¹¹ A patently unjust and inefficient legal regime continues to replicate itself again and again. Conduct that clearly constitutes breach of fiduciary duty, negligent plan administration or worse, …

Why Don’T Doctors & Lawyers (Strangers In The Night) Get Their Act Together?, Frances H. Miller

Faculty Scholarship

Health care in America is an expensive, complicated, inefficient, tangled mess – everybody says so. Patients decry its complexity, health care executives bemoan its lack of coherence, physicians plead for universal coverage to simplify their lives so they can just get on with taking care of patients, and everyone complains about health care costs. The best health care in the world is theoretically available here, but we deliver and pay for it in some of the world’s worst ways. Occam’s razor (“Among competing hypotheses, favor the simplest one”) is of little help here. There are no simple hypotheses – everything …

The Law's Many Bodies, And The Manuscript Tradition In English Legal History, David J. Seipp

Faculty Scholarship

Sir John Baker's recent book The Law's Two Bodies supplies a happy occasion to celebrate and reflect on Professor Baker's unique place within the field of English legal history today

Students beginning their study of this subject can well imagine the long history of the English common law as an hourglass. The wide upper chamber of the hourglass is the rich, complex, intricate medieval law of the Year Books. The wide bottom chamber is the equally rich, complex, intricate but very different caselaw of the modem age. The narrow neck of the hourglass can be imagined as the mind of …

"Rights Revolutions And Counter-Revolutions" Book Note, Jed Handelsman Shugerman

Faculty Scholarship

The rise of rights talk is a subject that has gripped academia in recent years. Many historians of modem America are now searching for the origins of the rights revolution and the feverish use of rights arguments on the left and on the right. Two recent works of legal history tackle one part of this question with trailblazing interpretations, focusing on left-wing rights discourse and the successes of the civil rights movement. Both books offer compelling and well-written narratives of post-war legal issues, and they present innovative arguments that this revolution began in response to global crises.¹ Richard Primus's …

The Rich Have More Money, George J. Annas

Faculty Scholarship

Review of Ethics, Equity and Health for All, by Z. Bankowski, J. H. Bryant, and J. Gallagher, eds. (Geneva: CIOMS, 1997)

The Chosen People In Our Wilderness, Susan P. Koniak

Faculty Scholarship

Strangers there are among us, practicing with weapons for something they believe might come - something some of them believe should come. Militia men, patriots, self-proclaimed true Americans. Chosen people. What are we, members of the power elite, the academy, the legal intelligentsia - the other chosen people - to make of them? Sideshow freaks may titillate even a scholar, but they rarely, if ever, inform. Is there more here?

Along with the authors of Gathering Storm and Rural Radicals, I believe there is. Neither of these books sets out to convince lawyers or law professors in particular that …

Personal Narratives And Racial Distinctiveness In The Legal Academy, Maria O'Brien

Faculty Scholarship

A small group of legal academicians is embroiled in yet another debate that, to the uninitiated at least, appears to have little or nothing to do with "the law." ¹ This time the issue is the ideology of legal writing style-that is, does a growing, unique body of legal scholarship that draws on the personal experiences of minority faculty and, arguably, reflects the racial oppression these scholars have suffered, produce "distinct normative insights?" ² Professor Patricia Williams of the University of Wisconsin clearly believes that it does.

In her new book, The Alchemy of Race and Rights,³ which is …

Love And Chicken Soup For Free: Goldstein's Mother-Love And Abortion, Elizabeth B. Clark

Publications

In 1904 the Carnegie Hero Fund Commission set out its criteria for awarding medals for heroism: an unpaid actor must have voluntarily risked life and limb to rescue a victim to whom he or she was unrelated by any family tie. Such behavior toward family members was expected. In these days of perilous family life the performance of obligations associated with ongoing family relations is no longer taken for granted but has taken on new, heroic dimensions. The volunteer mother, who renders her services to her child amply and without reward, is the hero of Robert Goldstein's new book, Mother-Love …

Contract Law As A System Of Values Book Review, Jack M. Beermann

Faculty Scholarship

Contract law has changed dramatically since the heyday of free contract ideology. The false conflict in the cases and literature between facilitation of market transactions and regulation to achieve social aims has been transcended, largely due to the realization that social aims are behind all of contract law. In place of this false conflict, new questions about the values advanced through contract law have been posed. Contract theory needs an account of the values underlying doctrines that were previously justified (wrongly) as means to effectuate the intent of the parties. Hugh Collins has given us such an account in his …

Crises? What Crisis?, Jack M. Beermann

Faculty Scholarship

Bureaucracy is a favorite target for criticism from the left and the right. Bureaucratization of an organization is claimed to cause excessive reliance upon rigid rules or the absence of rules altogether.' Few people want to be part of a large bureaucracy and fewer still want to depend on a bureaucracy for important benefits or policymaking. In recent years, the business of the federal judiciary has increased dramatically. Congress has attempted to meet the rising caseload by increasing the number of federal judges and assistants. As the federal court system becomes more and more like administrative bureaucracies, the question has …

Parents' Rights And Juvenile Court Jurisdiction: A Review Of Before The Best Interests Of The Child, Stanley Z. Fisher

Faculty Scholarship

This new book¹ by the authors of Beyond the Best Interests of the Child² also makes a major contribution to the field of family law. Concentrating this time on the subject of child neglect and abuse, the authors mount a powerful attack on state intrusion into families under current child protection laws. Like Beyond the Best Interests, this book has attracted wide attention and provoked intense controversy. It should be read by all those concerned about the law's impact on children and families.