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A Comment on Markovits\u27s Welfare Economics and Antitrust
Get PDFI criticize two features of the new book by Richard Markovits. One is the notion that ethics or moral judgments should be part of our analysis of antitrust. The other is the notion that market definition is incoherent
Commentary on Chy Lung v. Freeman
Get PDFThis chapter is a contribution to the forthcoming volume of Rewritten Immigration Opinions to be published by Cambridge University Press. It offers commentary on the rewritten opinion in Chy Lung v. Freeman, 92 U.S. 275 (1875), authored by Professor Stewart Chang.
In Chy Lung, the Supreme Court struck down a patently racist and gendered California law, allowing allowed state officials to exclude Chinese women suspected of being “lewd” and “debauched” from the United States. In the decision, Justice Samuel Miller, writing for the unanimous Supreme Court, expressed grave concerns about potential abuses of power by immigration officials, and he ultimately found that the federal government—not states—had the authority to make laws governing immigration and foreign relations. The opinion, however, did little to curtail anti-Chinese bias. In the wake of the decision, Congress passed the Page Act in 1875, permitting immigration officials to exclude Chinese women on similar grounds and anti-Chinese bias informed federal immigration law for decades.
This commentary examines the legacy of the Chy Lung decision. It also engages with Professor Chang’s rewritten opinion, one that grounds its analysis in equal protection and due process, to re-envision rights discourse at the border
Feminist Legal Theory and Praxis after Dobbs: Science, Politics, and Expertise
Get PDFFifty years ago, in Roe v. Wade, Justice Blackmun set into motion the idea that abortion should be a decision between a woman and her doctor.\u27 That idea traveled from the Supreme Court decision to popular discourse; with it, came the notion that when it comes to reproduction, medical experts are a key part of women\u27s liberation. In Dobbs v. Jackson Women\u27s Health Organization, the court ignored the role of experts and threw the question of who should decide when and how a person has an abortion to the people. In my essay for this symposium issue dedicated to feminist legal praxis, I will argue that contestation around medical and epidemiological evidence will continue to shape the abortion debates despite the Supreme Court\u27s recent decision. Reproductive rights advocates need to continue to pay close attention to new battles occurring in the register of evidence, medicine, and expertise. Doing so will require reproductive rights advocates to examine purportedly neutral scientific and expert-based justifications in the legal regulation of the practice of medicine and medication more closely.2 This will create new and necessary avenues for legal advocacy, including challenging when and where legal institutions legitimate misinformation about abortion or limit access to abortion based on science and evidence. In taking on questions of expertise and evidence, abortion rights advocates can learn from the overlapping movement to end racial bias in medicine and medical technology
The Problem is the Court, Not the Constitution
Get PDF“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow
Reply Brief for Petitioner, Ferguson v. America
Get PDFThe Government concedes that the circuits are divided over whether 28 U.S.C. § 2255 limits a district court’s discretion in reviewing 18 U.S.C. § 3582(c)(1)(A) motions. And because it cannot dispute that this issue is cleanly presented, unaffected by the Sentencing Commission’s policy statement, and exceptionally important, it instead rewrites the question presented. The Government’s effort to replace a question about the relationship (if any) between Section 3582(c)(1)(A) and Section 2255 with one about whether the district court abused its discretion should be rejected, and with it the Government’s attempt to gloss over the intractable circuit split, its misguided argument about the import of the Sentencing Commission’s amended policy statement, and its faulty merits analysis.
Ferguson is serving a 30-year sentence for something he was never convicted of. According to the Government, this serious injustice is “ordinary,” BIO 12, thus lacking the gravity of other circumstances that courts and the Sentencing Commission recognize as extraordinary-and-compelling reasons for a sentence reduction. We disagree. But the salient point is that neither the Fourth Circuit nor the district court considered whether Ferguson’s non-medical circumstances are extraordinary and compelling because they held that arguments related to legal errors are categorically excluded from consideration under Section 3582(c)(1)(A) by Section 2255. Until that issue is resolved, Ferguson and other deserving individuals seeking relief under the First Step Act will continue to be denied sentence reductions. This Court should grant review now
\u3cem\u3eBilski\u3c/em\u3e and the Information Age a Decade Later
Get PDFIn the years from State Street in 1999 to Alice in 2014, legal scholars vigorously debated whether patents should be used to incentivize the invention of business methods. That attention has waned just as economists have produced important new research on the topic, and just as artificial intelligence and cloud computing are changing the nature of business method innovation. This chapter rejoins the debate and concludes that the case for patent protection of business methods is weaker now than it was a decade ago
Foreword
Get PDFMost of us think we are familiar with graffiti – lettering on trains or graphic images on walls that follow us as we walk by. But Enrico Bonadio’s new book on graffiti and street art opens a door to more complex and nuanced worlds of artists and their communities. The focus is on everyday creators of graffiti and street art. Built from nearly 100 interviews and hundreds of hours of observation, the book is filled with the voices of artists and vivid details of their plein air studios and interactions. Also present in the book is the author, who weaves the artists’ accounts of their practices with his voice and reactions as he experiences excitement and awe at the people he meets and art he witnesses being made. This is a special kind of book of scholarship; it is ethnographic and legal. And it is also colorful, funny, and enlightening.In this short foreword, I could not adequately summarize the book’s rich detail, and I would feel neglectful choosing only a few artists on which to focus. I will instead highlight some of the productive tensions around which the book is framed, a kind of stage-setting for the book’s unfolding. I will also situate the book within intellectual property scholarship more generally, celebrating its methodological and reformist perspective on the study of copyright and the evolving place of copyright law in the 21st century
POV: Yes, Filling Out the Race Box on Forms Is Tiresome, but Here’s Why It Matters
Get PDFFilling out your race and ethnicity on a form may feel tiresome, and even uncomfortable. You have been checking these boxes for years, as has everyone else, and the questions may seem irrelevant.
“What does race have to do with my doctor’s appointment?” you might ask. Or a form may be inaccurate: “I’m Middle Eastern, why don’t I get a box to check?” Perhaps it feels intrusive: “How is this information going to be used?” And you may wonder, “Why are we always talking about race?”
The truth is, we need to keep talking about race. Even more than we currently do.
This isn’t because race tells us anything about how people think or act; it doesn’t. Race is not a fixed, biological fact but rather a social and power construct. We need to talk about it because we need to root out racism. We need to understand and document how people’s lived experiences differ based on how they are racialized
Major Questions and an Emergency Question Doctrine: The Biden Student Debt Case Study of Pretextual Abuse of Emergency Powers
Get PDFThe major question doctrine tries to address one problem, the Imperial Executive, by escalating another, the Imperial Judiciary. This article proposes a solution, with the Biden Student Debt Waiver as a case study: An “emergency question” doctrine.
This emergency questions doctrine would apply when the executive relies on a statutory emergency clause or invokes an emergency in its application of a statutory provision. As a matter of statutory interpretation, the emergency question doctrine would follow the two most important steps of the major question approach: 1) relying on purpose and context to clarify and limit the scope of open-ended emergency texts; 2) no Chevron deference. However, MQD’s step 3, the clear statement rule, is generally a problematic new substantive canon loading the dice, in Scalia\u27s terms. A “clear statement” rule for emergency responses is especially inappropriate – and even dangerous – given the unpredictability of emergencies and the necessarily open-ended texts in emergency clauses. Instead, as a check on pretextual uses or overbroad abuses, courts should focus on whether the means fit the emergency ends.
This approach addresses two problems: First, a narrow textual argument based on the word “emergency” gives too much latitude to the executive branch; a purposive approach (focusing on context and means-ends matching, with no Chevron deference) is sufficient to cabin the word “emergency” and limit executive power. Second, it would provide a meaningful category of cases where the logic of the major questions doctrine should apply, as a meaningful way to cabin the major questions doctrine.
This solution is a coherent middle stage of the Major Question cases:
MQD 1.0, the Good Purposive MQD (2000-2015), a common-sense emphasis purposivism over narrow textualism in major cases; and a wise exception to Chevron deference;
MQD 2.0, a Good Emergency MQD (2021-active) can be understood best as an emergency question doctrine, a check against the overbroad use, the pretextual use, or abuse of the Covid emergency;
MQD 3.0, the Bad Anti-Major Canon MQD (2022-active), the requirement of a super-clear-statement rule for any “major” policy, a substantive canon of a presumption against significant executive actions.
The emergency question doctrine makes sense MQD 1.0 and 2.0, and it limits (and even appropriately sidelines) MQD 3.0’s danger of imperial judicial expansion and its danger of weakening the executive’s capacity to address emergencies
Employee Retirement Income Security Act (ERISA): Toward a Reasonable and Coherent Framework
No full textFew federal statutes have as direct an impact on the lives of average Americans as the Employee Retirement Income Security Act (ERISA).1 The obscure but complicated 1974 statute regulates nearly every employterm ee’s health insurance, group life insurance, pension, long-and short- disability coverage, and numerous other work- based benefits. It created a regulatory regime that has not been fully effective at protecting employees by ensuring that employers keep retirement- related promises. Ruth Bader Ginsburg’s principal contribution to ERISA jurisprudence was a pragmatic sensibility consistently grounded in basic fairness for plan participants (employees and their dependents), with a strong distaste for unpredictable, distorted, or peculiar outcomes.
When Ginsburg ascended to the Supreme Court in 1993, the Court was grappling with myriad issues presented by this poorly drafted statute. Health care was relatively affordable in 1974,2 but by 1993 health care costs in the United States were rising rapidly.3 By the mid 1990s, employer- sponsored health insurance litigation was accelerating in both federal and state courts. And ERISA, which was crafted primarily to ad1974 dress defects in the pre- world of defined benefit pension plans,4 was repeatedly scrutinized during efforts to resolve the battles that ensued when plan sponsors simultaneously confronted longer lifespans and dramatic increases in health care costs and life- saving technology.5 Plan participants wanted and needed more, while employers scrambled to reduce, offload, and/or exclude costs. This dynamic environment triggered important cases before the Court