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American Law in the New Global Conflict
Get PDFThis Article surveys how a growing rivalry between the United States and China is changing the American legal system. It argues that U.S.-China conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed ties to a geopolitical adversary. But there has also been a modest expansion in rights where advocates have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times fostered executive overreach, interbranch agreement, and interparty consensus. Legal-culturally, it has in places evinced a decline in legal rationality. Although these developments do not rival the excesses of America’s wartime past, they evoke that past and may, over time, replay it. The Article provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in times of conflict, and reflects on what comes next in the new global conflict, and how best to shape it
Bridging Silos: Environmental and Reproductive Justice in the Climate Crisis
Get PDFThe climate crisis is a perilous yet underexamined example of the intersection of environmental injustice and reproductive injustice. The physical manifestations of the climate crisis affect key elements of reproductive justice: women’s rights to have children, to not have children, and to parent children in healthy, sustainable communities. Reams of studies document climate disaster-driven gender violence, loss of access to healthcare and reproductive services, as well as direct and deadly health effects of climate change on maternal health, fetal development, infants, and children. Despite these profound impacts, the environmental and reproductive justice movements remain largely siloed, particularly in the legal community.
This Article makes two interventions into existing legal scholarship. First, the Article identifies an intersectional nexus of hazard between environmental and reproductive justice, which is especially acute for women of color living in under-resourced communities. It argues that environmental injustices in the context of the climate crisis undermine reproductive justice. Second, the Article explores how the movements can align strands of their advocacy and suggests how advocates can leverage various legal and policy strategies to mitigate these intersectional injustices. It argues for a ground-up approach based on community power-building and interdisciplinary cooperation, which can inform legal and policy solutions at scale. Collective action to foster health and dignity has never been more urgent, as climate change harms escalate, maternal health deteriorates, and the Supreme Court issues decisions shredding reproductive autonomy and circumscribing environmental regulatory authority
Political Affirmative Action
Get PDFIn the Supreme Court’s most recent affirmative action decision—Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College—the Court wrongly continued to believe that it has a role to play in determining the constitutionality of affirmative action. Where the Constitution lacks a legal standard that is sufficiently precise to provide meaningful constraint on the exercise of judicial discretion, questions concerning proper interpretation of that standard are what Marbury v. Madison deemed to be “in their nature political” and therefore “only politically examinable.” In such cases, the Constitution simply means what the political branches of government say it means, so there is no basis for the Supreme Court to declare a representative branch interpretation unconstitutional. The contemporary Supreme Court itself recognized this need for judicial deference in its 2019 Rucho v. Common Cause decision, when it declined to rule on the constitutionality of partisan gerrymandering. Although the challengers there argued that the Equal Protection Clause made partisan gerrymandering unconstitutional, the Court held that the Equal Protection Clause’s lack of judicially manageable standards was enough to render the constitutional challenge a nonjusticiable political question.
Under the doctrine of separation of powers, the same Equal Protection Clause that rendered partisan gerrymandering nonjusticiable should also have rendered challenges to majoritarian affirmative action programs nonjusticiable. But the Supreme Court has gerrymandered its justiciability rules in a way that vests the Court with the precise political and ideological discretion that Marbury\u27s political question doctrine was intended to guard against. And the Court\u27s selective application of its justiciability rules has, in turn, enabled the Court to gerrymander its substantive law of affirmative action, in a way that ironically makes the Equal Protection Clause itself a doctrinal tool that an ideologically motivated Supreme Court can use to facilitate discrimination against racial minorities.
Since the Supreme Court first considered the constitutionality of racial affirmative action in the 1970s, the Court has adopted ambiguous and inconsistent interpretations of the Equal Protection Clause. Sometimes the Court upheld challenged affirmative action programs, and sometimes it held affirmative action programs to be unconstitutional violations of equal protection. But because neither the language nor the original meaning of the Equal Protection Clause has changed since its adoption, those inconsistent interpretations themselves attest to the doctrinal imprecision of the equal protection standard. That imprecision is further highlighted by the divergent interpretations of the majority, concurring, and dissenting opinions in the Court\u27s SFFA case. But those interpretive inconsistencies are not the product of mere judicial inattention. Rather, they emanate from the subjective, and ultimately normative, nature of “equality” itself
Hatch-Waxman’s Renegades
Get PDFNo intellectual property rights impact society more forcefully than patents on pharmaceuticals. But as a practical matter, only a handful of jurists resolve disputes involving them. Two neighboring federal districts, Delaware and New Jersey, adjudicate the vast majority of patent contests between brand-name drug companies and generic manufacturers. And in contrast to Eastern Texas, which has been persistently derided as a renegade jurisdiction, the authority of the mid-Atlantic courts has seldom been questioned. The complex workings of the Hatch-Waxman Act, the compromise legislation that governs pharmaceutical patent litigation, go a long way to explaining such distinct shareholder reactions to highly similar judicial behaviors.
Yet the dominance of Delaware and New Jersey in pharmaceutical patent litigation may have come to an end. A recent decision of the U.S. Court of Appeals for the Federal Circuit, Valeant v. Mylan, has narrowed the rules for venue in Hatch-Waxman cases. We are now poised to see multiple, parallel trials involving the same patented pharmaceutical proceeding in courts across the country.
The new order of pharmaceutical patent litigation affords an opportunity to reconsider an intellectual property environment that aims to promote pharmaceutical innovation but also increase public access to medications. Venue determinations are puzzling in pharmaceutical patent cases due to a concept originating within the Hatch-Waxman Act, the tort of “artificial” infringement. Artificial infringement occurs when a manufacturer petitions the federal government to obtain permission to market a generic drug. But the federal government both issues patents, and awards regulatory approval to sell a drug, with effect across the entire nation. Congress gave no thought towards situating artificial infringement at a certain place, and judicial efforts to do so have amounted to a facile and strained exercise.
Venue is not artificial infringement’s only problem. Artificial infringement also creates disconnects with personal jurisdiction principles, incorporates obsolete remedial provisions, and fails to comply with the international commitments of the United States. Courts should instead recognize their authority to accept declaratory judgment actions to resolve pharmaceutical patent infringement cases, with legislative abolition of artificial infringement presenting another, preferred possibility
Convergence by Design: Who Contracts and the Plural Purposes of Contract Law
Get PDFA theory is robustly pluralist if it maintains that law is justified by multiple independent nonordered principles. Some have argued that robustly pluralist theories are deficient because they can provide no practical guidance when those principles conflict. The objection is misplaced when applied to pluralist theories of contract law.
This article demonstrates the possibility of a robustly pluralist and practically relevant theory of contract law by modeling a multipurpose law of contract. Five simple models are constructed to illustrate several purposes a contract law might serve, depending on preferences of the populace (self-interested utility maximizers, a preference for sharing, a preference for keeping morally binding promises) and the circumstances of exchange (one-off transactions, repeat play, reputation). Those models are then combined to explore how a contract law can be designed to serve several independent nonordered purposes at once with a focus on three doctrinal questions: rules of formation with respect to intent to contract, the choice between textualist and contextualist interpretation, and remedies.
The models suggest several reasons to think a robustly pluralist and practically relevant contract theory is possible. It is enough to resolve conflicts between principles on the level of rules, not case outcomes. The principles that animate contract law are relatively indeterminate in their practical prescriptions, making it easier to find a compromise among them. The practical implications of many principles depend on empirical facts about which we have limited knowledge, softening their prescriptive claims. Because the social interests in enforcement partly depend on who contracts and the circumstances of contracting, lawmakers can tailor rules to fit those interests. Default terms often enable balancing contract law’s duty-imposing and power-conferring functions. And the altering rules that govern what parties must do to avoid a default can take also account of the otherwise conflicting functions of contract law. The upshot of the analysis is a pluralist theory of contract, but an argument for the possibility of a robustly pluralist theory that also provides practical guidance through convergence by design
Advancing Racial Justice through Civil and Criminal Academic Medical-Legal Partnerships
Get PDFThe medical-legal partnership (MLP) model, which brings attorneys and healthcare partners together to remove legal barriers to health, is a growing approach to addressing unmet civil legal needs. But MLPs are less prevalent in criminal defense settings, where they also have the potential to advance both health and legal justice. In fact, grave racial health inequities are deeply intertwined with both civil and criminal injustice. In both spheres, health justice is racial justice. Building on the experiences of the authors in their respective civil and criminal law school clinics at Georgetown University in Washington, D.C., this Article argues that academic medical-legal partnerships provide a unique vehicle for advancing racial justice by training future leaders in law and healthcare to understand, address, and dismantle intertwined health inequities and injustice across both civil and criminal legal systems
Antitrust Worker Protections: Rejecting Multi-Market Balancing as a Justification for Anticompetitive Harms to Workers
Get PDFAnticompetitive conduct toward upstream trading partners may have the effect of benefiting downstream consumers even as the conduct harms the firms’ workers or suppliers. Defendants may attempt to justify their upstream conduct—and may rely on the ancillary restraints doctrine in doing so—on the grounds that the restraints create efficiencies benefitting ` purchasers, rather than focusing solely on the impact of the restraint on the workers or suppliers in the upstream market. Such balancing of harms against out-of-market benefits achieved by a different group should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers. This type of out-of-market balancing is not supported by either economic analysis or the basic goals of the antitrust laws. Antitrust’s consumer welfare prescription properly protects the trading partner participants (e.g., workers) in any relevant market who are harmed by anticompetitive restraints. Doctrinal and practical considerations weigh against allowing that protection to be traded against out-of-market benefits flowing to other groups. This proposition flows both ways; putting aside antitrust exemptions, it is similarly inconsistent with antitrust doctrine to permit firms to coordinate in ways that harm downstream purchasers, based on a purported justification that this purchaser harm is offset by the out-of-market benefits to the workers. We conclude that in all cases, multi-market balancing that treats out-market-benefits as cognizable justifications for the restraints on workers or other input suppliers should be rejected. However, since courts sometimes may not agree in limited circumstances such as two-sided platforms, we also briefly discuss how and in what circumstances such balancing might be undertaken. We apply this analysis to a series of real and hypothetical scenarios that raise paradigmatic issues involving these potential conflicting effects as they relate to workers. We also apply our analysis to a likely post-Alston case attacking the NCAA restraints on non-education payments to student-athletes, in light of the points made in Justice Kavanaugh’s concurrence in Alston
The Paradoxes of a Unified Judicial Philosophy: An Empirical Study of the New Supreme Court, 2020-2022
Get PDFThe 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile in the courts’ opinions. History appears in at least one opinion in a majority of cases and in a significant minority of unanimous cases, text is the end of the matter. However, there is also cause for worry. We found significant evidence of what Prof. Adrian Vermeule (2022) has called “disruption,” meaning that history and text are used to disrupt prior doctrines despite claims that originalism seeks stability and neutrality. Call this the “disruption” paradox. Similarly, we found that the self-described textualist Justices—presumably the best textualists in the world—do not agree upon the text most of the time. And when they disagree about text, they end up doing what they say that they should not do, engaging in policy reasoning. Call this the “consequentialist paradox.” The paper argues that proponents and critics of the court\u27s new interpretive philosophy should seek to resolve these quandaries
Brief for Former and Current Law Library Directors, Professors, and Academics as Amici Curiae in Support of Defendant-Appellant
Get PDFThe Copyright Act and libraries have a shared purpose: to spread knowledge to the public. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 574 (1994) (noting the purpose of copyright is “[t]o promote the Progress of Science and useful Arts”). Libraries rely on balanced, careful application of the fair use balancing test to achieve that purpose. Amici respectfully submit that the District Court\u27s decision collapsed copyright law\u27s multi-part fair-use balancing test into a theory focused primarily on economics. Amici further respectfully submit that the District Court\u27s fair-use analysis was broadly applied to Internet Archive\u27s (IA) activities without distinguishing between the many different types of uses of digitized materials at issue in this case.
The result in this case and the implication for future ones is that not only libraries\u27 various CDL programs but also their other longstanding, customarily permitted activities to distribute knowledge to the public could be considered commercial activities that violate copyright. A library offering standard services to connect the public to authors\u27 works, such as public read-aloud hours, while also conducting usual non-profit activities such as inviting donations through its website could suddenly be targeted for copyright infringement.
In support of the IA, amici respectfully submit that this Court should vacate and remand so: (1) the District Court can separately analyze each of the actual uses of the works at issue in this case under the fair use balancing test and carefully restrict their analysis and holding to those actual uses; and (2) the District Court can appropriately weigh access to knowledge and public interest in the fair use balancing test.
Amici address three points to help the Court\u27s consideration of this case. First, the District Court did not conduct the required work-by-work analysis to determine fair use and failed to account for and appropriately distinguish multiple distinct uses of digitized materials which have differing methods, purposes, and impact. Second, the District Court\u27s analysis drastically expands the definition of commerciality in the fair use balancing test. This expansion will chill many previously legitimate fair uses including by libraries as part of their mission to spread knowledge to the public. Third, this expansion of commerciality overrides the purpose of the initial Copyright Act to promote the spread of knowledge. It also counters the Copyright Act\u27s text and Congress\u27 intention to broadly define fair use to require it to be determined based on each use\u27s particular circumstances
Roe v Wade’s 50th Anniversary: New Legal Frontiers for Safeguarding Reproductive Freedoms
No full textAt the 50th anniversary of Roe v Wade, the nation is seeking new legal frontiers to safeguard reproductive freedoms. In Dobbs v Jackson Women’s Health Organization, the Supreme Court overturned the landmark ruling, thus eliminating a national right to abortion before viability. Key federal strategies to address this ruling include expanding access to medication abortions and emergency abortion services. Federal conscience protections for health workers balance nondiscriminatory access to abortion services. Ballot initiatives and courts are seeking to protect reproductive rights under state constitutions. At stake is whether pregnant people can access essential services, with significant consequences for autonomy, dignity, health, and emotional well-being