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How to Use the Restatement of Consumer Contracts: A Guide for Judges
Get PDFIn the absence of major legislation or regulatory action, U.S. consumers will continue to look to courts and the common law for protection when businesses engage in unfair and deceptive contracting practices. In May 2022, the American Law Association approved the Restatement of the Law, Consumer Contracts. This new Restatement provides a valuable resource for courts tasked with deciding the legal effects of standard terms that businesses draft and consumers do not read. This essay identifies six pieces of the new Restatement we believe courts should pay special attention to and discusses the importance of each. It also charts several ways courts might go beyond the new Restatement to protect consumers against abusive contracting practices. Unless and until legislators and regulators step in, U.S. courts should continue to reshape the common law to address risks that new technologies of contracting create
High Theory in Chinese Law
Get PDFThe most contested question in the study of Chinese law is also its most enduring one: How should we characterize China’s legal system? In recent years, scholars have advanced numerous theories to explain Chinese law. Some have emphasized legality; others have stressed order; still others have described the system as dual or multi-faceted.
This Essay contributes a set of meta-theoretical insights to these discussions. It argues that the preceding debates would benefit from reflecting on the general qualities that make theories good, with special attention to the analytic costs and benefits of different modes of theorizing. It distinguishes between monist theories about legal systems that rely on a single construct and pluralist theories that rely on multiple constructs. Monist theories excel in their economy, coherence, testability, and generativity, as well as in their heuristic and prismatic properties. But they are, as a class, less able to achieve the explanatory breadth and depth of pluralist theories and are more vulnerable to subtler epistemological biases. Pluralist theories, in contrast, tend to explain more but generate less through their attention to nuance and exception.
There are analytic payoffs to recognizing these differences—payoffs for the rigor of internal debates, the strengthening of specific arguments, our interpretation of theoretical trends, and our theorizing about legal systems generally, including American law. More prescriptively, these findings lean in favor of theoretical heterogeneity, where modes of theory are keyed to particular purposes and contexts as well as larger disciplinary and political trends
\u3ci\u3eBrown v. Board of Education\u3c/i\u3e: Enduring Caste and American Betrayal
Get PDFThis article reflects on the role of residential caste in reproducing school segregation and how the Supreme Court betrays the equality principles of Brown by applying a colorblind constitutionalism that renders so-called de facto residential caste, and subsequent school segregation, acceptable.
During the seven-decade Great Migration of the 20th century, northern cities deployed policies to create an architecture of inequality in which African Americans and white Americans did not live in the same neighborhoods. While the Fair Housing Act of 1968 rendered intentional discrimination in housing markets illegal, and the Court also ruled against forms of intentional housing discrimination, the ostensibly race-neutral habits of residential caste continue unabated throughout the nation. In the 21st century, public and private institutions reify poverty-free and poverty-concentrated spaces through three anti-Black, though facially neutral practices: boundary maintenance, opportunity hoarding, and stereotype-driven surveillance. The two most persistent types of neighborhoods are affluent, majority-white, high-opportunity areas and at the other extreme, majority-minority “hoods” of concentrated poverty that are chronically under-resourced. This residential dynamic and the Court’s allegiance to a colorblind understanding of Brown and the Fourteenth Amendment result in separate and unequal schools and worse outcomes for children of color.
Contrary to the vision of Brown in which the common public school is the site of shared, pluralistic learning and inculcation of common values of citizenship, the article also summarizes the political weaponization of Brown and conservative legislative assaults on public education. The article concludes that our best hope of overcoming residential caste and creating well-resourced, integrated public schools is continuing to build and support local laboratories of multiracial democracy that reject the pathologizing of those trapped in communities of concentrated poverty
The President’s Authority over Cross-Border Data Flows
Get PDFThis Article reveals a surprising expansion of presidential authority to control goods and services available in the United States because of the information flows that they entail. Such authority is grounded in laws focused on protecting national security, here with respect to foreign surveillance and propaganda. But broad executive powers over our information infrastructure raises significant concerns with respect to core American values of free expression and due process. Worries about unfettered foreign access to data should be coupled with worries about unfettered executive control over our information services and technologies
\u3ci\u3eHachette v. Internet Archive\u3c/i\u3e: How and Why the Courts Broke Copyright
Get PDFThe exclusive rights of copyright owners have always been overbroad which, if read literally, would make many common activities illegal (e.g., reading a book during library story hour, making a mixed tape, etc). What has prevented overreach is a social contract. The public at large has been tolerant of copyright’s broad grant of rights because of the understanding that the rights would be exercised only in very limited circumstances. The rights were not intended to empower copyright owners to undermine the overwhelming number of reasonable uses of copyrighted works that make society productive. For centuries, rightsholders and courts have generally abided by the contract, the former in showing restraint in suing against reasonable uses and courts by permitting reasonable uses through the application of fair use.
Hachette breaks that contract by holding that a buyer of a work receives no greater deference in use than someone who has not purchased the work. Instead of the right to use the content purchased consistent with the number of copies purchased, a purchaser may now use what they have purchased only in ways that have no commercial alternative. Never before Hachette has it been possible to claim market harm without proving that the number of copies used exceeded the number of copies paid for. On September 4th, that changed and eliminated the unspoken protections for reasonable use that society has long relied upon.
This paper will explain why and how the appellate court’s decision in Hachette broke copyright’s social contract. Part I discusses why the social contract is necessary for copyright to retain its legitimacy. Part II looks at how human nature, mental shortcuts, and novelty interact in copyright, creating an environment with constantly increasing pressure to ignore the social contract. Part III analyzes the decision in Hachette, points out the facts that the Court missed, and illustrates how the exclusion of these facts led to the Court’s breaking of copyright’s social contract. Part IV considers possible ways to counter the breach
How Is Access to Legal Resources and Advocacy Foundational to Health Justice?
Get PDFHealth justice as a movement incorporates research about how to more effectively leverage law, policy, and institutions to dismantle inequitable power distributions and accompanying patterns of marginalization that are root causes of health inequity. Legal advocacy is key to health justice because it addresses patients’ health-harming legal needs in housing, public benefits, employment, education, immigration, domestic violence, and other areas of law. In medical-legal partnerships, lawyers and clinicians are uniquely positioned to jointly identify and remove legal barriers to patients’ health, advocate for structural reform, and build community power
Creditor Courts
Get PDFOne of the largest institutional creditors in the United States is perhaps the most unexpected: the criminal court system. Each year, creditor courts collect more than $15 billion in revenues from criminal defendants. These fees are the lifeblood of the modern criminal legal system.
In this Article, we shed new light on the legal and economic framework under which myriad stakeholders operate in these creditor courts. By analyzing new survey data from clerks of court and 102 contracts with debt collection agencies in Florida, we provide general insights how creditor courts distort incentives and teem with conflicts of interest. These inefficiencies regularly disrupt the financial stability of the judiciary as well as the lives of the largely indigent criminal defendants who remain indebted to this system.
As we show, legislators, clerks of court, and the judiciary writ large subject criminal defendants to unconstrained coercion through the use of so-called “user fees.” Leveraging campaign finance data and publicly available litigation material, we also find suggestive evidence of possible quid pro quo rewards between collection agencies assigned to collect debt on behalf of courts and the clerks of court tasked with administering them. We argue that state constitutional reforms that eliminate creditor courts and mandate courts be funded from general state revenues are the only meaningful ways to permanently redress the social costs generated by criminal monetary sanctions
Breaking the Rules
Get PDF“Breaking the Rules” is a legal research and writing assignment that I crafted for students completing their first year of law school. The assignment honors new students’ desire for skills that will allow them to effectively challenge the status quo of settled but discriminatory legal rules. Part I of this article is an essay that contextualizes and explains the assignment; Part II provides the assignment itself
The Future Scope of the Character Evidence Prohibition: The Contextual Statutory Construction Argument that Could Finally Force the Policy Discussion
Get PDFThe general prohibition of character evidence is one of the most important doctrines in American Evidence law. Since the Supreme Court has held that the Eighth Amendment forbids status offenses in adult prosecutions, the doctrine has constitutional overtones. Federal Rule of Evidence 404(b) applies the prohibition to evidence of an accused’s other crimes and wrongs. Since such evidence can be inflammatory and the Rule’s limits sometimes confusing, Rule 404(b) generates more published opinions than any other provision of the Federal Rules of Evidence. Although the prohibition extends beyond other crimes, most of the controversy swirls around the Rule’s application to evidence of an accused’s uncharged crimes.
As a 2023 United Kingdom Law Commission report points out, that country has abandoned a rigid, formal character prohibition and allows trial judges to balance the probative value of specific acts evidence against the incidental probative dangers of the evidence. The American Federal Rules of Evidence do not go that far, but in sexual assault and child abuse cases Rules 413-15 carve out exceptions to the character prohibition. Many leading American commentators have contended that the United States should move farther in the direction of narrowing the prohibition. In 2021, drawing on the work of previous commentators, Professor Steven Goode published an article making a persuasive case that federal courts ought to admit highly probative evidence of very specific propensities. However, Rule 404(b) seems to stand in the way of doing so.
In early 2023, the lead author of this article and a coauthor published an article discussing the admission of prior racist acts in hate crime prosecutions. To a degree the article dovetails with Professor Goode’s contention; the article develops an argument that if adopted, could move American character law in the direction Professor Goode favors. The 2023 article presents seven different “gateways” for introducing evidence of prior racist acts. One potential gateway is of special importance in the current Age of Statutes. That gateway is a novel contextual statutory construction argument: Since Federal Rule 404(a) governing reputation and opinion character evidence states the general prohibition as applying to “character trait[s]” as well as “character” but Rule 404(b) governing specific acts testimony mentions only “character,” proof of a specific character trait could be considered a permissible purpose under Rule 404(b).
This is essentially a contextual statutory construction argument. This is the textualist era. In this era contextual arguments based on related statutes carry special force. Textualists maintain that extrinsic legislative history materials are entitled to less weight because they are subject to manipulation by special interest groups and lack the force of law. Unlike those materials, contextual provisions enjoy the force of law; and assigning considerable weight to such provisions does not raise separation of powers concerns.
The authors of the 2023 article do not describe themselves as textualists or suggest that a court may embrace their argument only if the court subscribes to textualism. However, the reality is that today textualism is clearly the dominant school of statutory interpretation, especially in federal court. Hence, the purpose of this article is to present a textualist analysis of the contextual statutory construction argument regarding the character/character trait distinction. The article reviews the pertinent text, contextual provisions, and extrinsic materials: the Advisory Committee Notes to Rules 404-05, 413-15, and 608-09.
The contextual argument is certainly viable. Rule 404(a) is a salient part of the context for interpreting Rule 404(b); the two provisions are very close together in the same Rule. However, there are other parts of the context, other related statutes; and a close examination of the wording of those statutes reveals that the drafters used “character” and “character trait” loosely in those provisions. The same inconsistent use of the terms is evident in the pertinent Notes. Thus, it cannot be said definitively whether by omitting “character trait” in 404(b) the drafters intended to signal that character trait evidence is admissible under 404(b).
The textualist analysis of the contextual argument demonstrates that one of the root causes of the present uncertainty about the scope of Rule 404’s character prohibition is a larger problem, namely, the loose usage in the pertinent Rules and Notes. The present article therefore identifies two possible courses of action for the Rules Advisory Committee. One is to provide working definitions of the terms, “character” and “character trait.” Commentators vary in their understanding of those terms; but given the inconsistent usage in the wording of the Federal Rules and the Notes, that variation is expectable. A second option would be for the Committee to invite a wider discussion of the policy issues that make the scope of the character prohibition such a controversial issue. The combination of Professor Goode’s 2021 article, the 2023 United Kingdom Law Commission report, and the recent 2023 article makes this an opportune time for that discussion. To be sure, resolving those issues would not be easy. However, in light of the enormous amount of time that the courts devote to disputes over Rule 404(b), addressing those fundamental issues might be worth the effort. If any Federal Rule deserves a hard look by the Committee, it is Rule 404(b)
Western Feminism Before and After October 7
Get PDFIn this interview, I provide my view on the state of Western feminism before and after the assault on Gaza. The interview includes discussion of the various strands of emergent feminisms in the West and some of their offshoots as they appear in Palestine in the context of Israeli colonialism and resistance to it