3320 research outputs found
Sort by
Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power
Get PDFThis Article tells an untold history of the American title registry—a colonial bureaucratic innovation that, though overlooked and understudied, constitutes one of the most fundamental elements of the U.S. property system today. Prior scholars have focused exclusively on its role in catalyzing property markets, while mostly ignoring their main sources in the colonies -- expropriated lands and enslaved people. This analysis centers the institution’s work of organizing and “proving” claims that were not only individual but collective, to affirm encroachments on tribal nations’ lands and scaffold colonies’ tenuous but growing political, jurisdictional power. In other words, American property and property institutions did not issue from sovereigns with established authority to govern a territory—as in the understanding drawn from European legal traditions—but rather preceded and ushered in colonial and U.S. sovereign title to Native homelands.
Using established scholarship on the colonies and original research on county-creation for the United States, this analysis presents new questions about how the legal infrastructure of property furthered conquest, and how the progression of conquest on the ground produced the national jurisdiction and real estate market. It shows that in the haphazard process toward the American title registry, colonists borrowed the English legal forms of the registry and county to remake them into local nuclei of colonial territorial expansion—the key governmental forms that drew settlers into Native nations’ territories and encouraged them to claim lands by reassuring them that those claims would become real property. The United States adopted this colonial approach to perfecting the Discovery claims it inherited or acquired from other Empires. The timed map of county creation— not the creation of territories, nor states, nor treaties— most accurately tracks where the United States grew its jurisdictional power, and when. For between its plans to invade and ability to govern lands-- between mere white entitlement and actual title—it created counties and registries, before transitional territories and often before obtaining Native cessions to the lands by treaty. In this way, counties came to underpin the national jurisdiction and the local institution of the registry became the common and continuous infrastructure for the entire national real estate market.
This history of the title registry underscores the conceptual and practical stakes of redressing the erasure of race from our understanding of legal institutions and legal development. In particular, it also challenges us to recognize less obvious ways that the legacies of conquest and enslavement survive to structure our landscape and lives. Race works to shape law and legal outcomes in different ways, including through the familiar dynamics of exclusion from institutional protections and benefits and the predatory risks of formal inclusion. But the registry’s history also illustrates a third phenomenon: legal innovation spurred by the willingness to view racial violence as an economic resource, or the development of new institutions and practices that may appear to be facially “race-neutral,” but promote the production of property value through the dehumanizing logic of race. The minimal, low-accountability design of the title registry encouraged the proliferation of market claims without authenticating them, prioritizing the collective goal of building jurisdictional power at the direct expense of Native and Black communities whose lands and people colonists rapaciously claimed as property for that ever-growing market. The result was an institution that continues to privilege the production of property value above all—above protecting individual property interests, and above sustaining homes, communities, and life, in ways that now affect us all
The WHO’s 75th anniversary: WHO at a pivotal moment in history
Get PDFThe World Health Organisation (WHO) was inaugurated in 1948 to bring the world together to ensure the highest attainable standard of health for all. Establishing health governance under the United Nations (UN), WHO was seen as the preeminent leader in public health, promoting a healthier world following the destruction of World War II and ensuring global solidarity to prevent disease and promote health. Its constitutional function would be ‘to act as the directing and coordinating authority on international health work’. Yet today, as the world commemorates WHO’s 75th anniversary, it faces a historic global health crisis, with governments presenting challenges to its institutional legitimacy and authority amid the ongoing COVID-19 pandemic. WHO governance in the coming years will define the future of the Organisation and, crucially, the health and well-being of billions of people across the globe. At this pivotal moment, WHO must learn critical lessons from its past and make fundamental reforms to become the Organisation it was meant to be. We propose reforms in WHO financing, governance, norms, human rights and equity that will lay a foundation for the next generation of global governance for health
Infrastructuring the Digital Public Sphere
Get PDFThe idea of a public sphere --a shared, ideologically neutral domain where ideas and arguments may be shared, encountered, and contested--serves as a powerful imaginary in legal and policy discourse, informing both assumptions about how public communication works and ideals to which inevitably imperfect realities are compared. In debates about feasible and legally permissible content governance mechanisms for digital platforms, the public sphere ideal has counseled attention to questions of ownership and control rather than to other, arguably more pressing questions about systemic configuration. This essay interrogates such debates through the lens of infrastructure, with particular reference to the ways that digital tracking and advertising infrastructures perform systemic content governance functions
Surveillance, State Secrets, and the Future of Constitutional Rights
Get PDFThe Supreme Court’s 2022 decision in Federal Bureau of Investigation v. Fazaga heralds a worrying trend. Over the past 15 years, as more information about how the government wields its foreign intelligence collection authorities on U.S. soil has become available, it has become clear that the government has repeatedly acted outside its constitutional and statutory limits, and at times, in flagrant disregard for judicial orders. As a result, dozens of cases challenging surveillance have been making their way through the courts. Unlike in prior eras, in certain cases it has become easier for litigants to establish an injury-in-fact in light of the information available and the programmatic nature of collection. In response, the government has crafted a new state secrets analysis, raised the privilege early in litigation to have suits dismissed, broadened its assertion to encompass entire categories of information, and claimed as an Article II constitutional power what for centuries has been a common law rule. Because of the government’s shift, what is now at stake is the possibility of any litigant to ever challenge illegal and unconstitutional surveillance. Fazaga represents the tip of the iceberg in terms of the risks to individual rights that would follow should the government ultimately prevail
Beyond the Watchdog: Using Law to Build Trust in the Press
Get PDFDeclining trust in the American press has been longstanding and corrosive—both to our information environment and to democracy. It is tempting to think that if journalists could just repeatedly and brilliantly play their key role—that of watchdog—it might be redemptive. But doubling down on the watchdog function holds risks in our polarized climate. Research shows that some conservatives recoil from watchdog journalism, finding it too cynical and politicized.
This essay argues that a different journalistic function—one that has received far less attention and adulation from judges and legal scholars—should be encouraged and amplified. This is the press’s role as a convenor and facilitator of the public square.
Traditionally, this public square has been synonymous with the marketplace of ideas—a space that the Supreme Court has called “uninhibited, robust, and wide-open” where debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks.” But a metaphorical public square for today’s flagging democracy—in which sharp attacks abound—needs to operate differently. For one, it needs to better take into account how to build trust, understanding, and what philosopher Robert Talisse calls “civic friendship.”
This essay investigates how the press might take up the role of architect, convener, facilitator, and even listener in what I call “public fora”—spaces not simply marked by debate but also by collaboration and deliberation. It looks at how law might help. It argues that with law’s backing, the press can build citizens’ trust in it by helping citizens to trust one another
Misrepresentation and Contract
Get PDFContract theorists naturally focus on the duty to perform. This chapter argues they should also pay attention to duties of candor in the contracting context. The most obvious example of such duties can be found in the misrepresentation defenses, which aim to ensure that contractual undertakings are sufficiently voluntary and to allocate the costs of defective consent. But other laws of deception, such as the torts of negligent misrepresentation and deceit, are also integral to the law of contracts. Separate liability in tort for both pre- and post-formation misrepresentations helps parties who mistrust one another determine whether an exchange is in their mutual interest and maximize the gains from it. Like liability for breach, these torts enable persons to engage in joint endeavors that might otherwise fail for lack of trust, thereby expanding their autonomy. Application of the misrepresentation torts in the contracting context also requires sensitivity to market norms that determine both when there is a misrepresentation and whether it is wrongful. If the goals of contract law include establishing socially desirable market structures and recognizing the distinctive moral relationships in them, laws of deception are essential to the project too. In these and other ways, duties of candor are as integral to contract law as is the duty to perform
Burden of Production in Merger Cases Litigating Divestiture Fixes: Amicus Brief
Get PDFIn this amicus brief to the D.C. District Court judge, Amy Berman Jackson, in the U.S. v Assa Abloy, we explain the legal and policy rationales for courts to place the burden of on the merging parties to produce sufficient evidence that the divestiture will preserve competition to rebut the anticompetitive structural presumption based on the market shares of the unremedied merger that was reported to the agencies in the Hart-Scott-Rodino filing
The Origins of Covid-19 — Why It Matters (and Why It Doesn’t)
Get PDFWhen Health emergencies arise, scientists seek to discover the cause — such as how a pathogen emerged and spread — because this knowledge can enhance our understanding of risks and strategies for prevention, preparedness, and mitigation. Yet well into the fourth year of the Covid-19 pandemic, intense political and scientific debates about its origins continue. The two major hypotheses are a natural zoonotic spillover, most likely occurring at the Huanan Seafood Wholesale Market, and a laboratory leak from the Wuhan Institute of Virology (WIV). It is worth examining the efforts to discover the origins of SARS-CoV-2, the political obstacles, and what the evidence tells us. This evidence can help clarify the virus’s evolutionary path. But regardless of the origins of the virus, there are steps the global community can take to reduce future pandemic threats
Recent Developments in Mandatory Arbitration Warfare: Winners and Losers (So Far) in Mass Arbitration
Get PDFMass arbitration has sent shock waves through the civil justice system and unnerved the defense bar. To see how quickly and dramatically this phenomenon has entered both the civil justice landscape and the public discourse, one need look no further than the January 2023 filings of hundreds of individual arbitration demands by former Twitter employees against Elon Musk, along with threats to file hundreds more—threats that were announced, no doubt intentionally, on Twitter itself. Plaintiffs are increasingly more aware of mass arbitration as a tool in their arsenal, and defendants are, perhaps for the first time in decades of mandatory arbitration warfare, on the defensive.
From 2018 to 2021, I conducted a large study of this relatively new phenomena and published the results. In Mass Arbitration, the first and only case study of the phenomenon, I detailed the history of mandatory arbitration warfare, whereby a coalition of defense-side interests waged a decades-long effort to retrench aggregate dispute resolution through arbitration agreements and class-action waivers imposed in contracts of adhesion. This mandatory arbitration warfare achieved nothing short of an arbitration revolution—it eliminated scores of legal claims across the civil landscape and saved corporations billions of dollars. Yet, just when everyone expected the defense interests to take a victory lap, prominent defendants started to abandon the hard-fought war against class actions and, instead, began to take refuge in them. The study chronicled the genesis of mass arbitration, the transformation of mandatory arbitration from a windfall for defendants to a weapon for the plaintiffs’ bar. Mass Arbitration concluded by capturing early responses from the defense coalition and offered predictions for the future of mass arbitration.
This Article updates and expands the original study of Mass Arbitration. Of course, mass arbitration is constantly evolving. Neither the initial study nor an updated analysis in 2023 here mean that investigation and study is complete. However, as with the initial study, this Article provides important snapshots of what is now one of the most substantial developments in the civil justice landscape.
Part I of this Article summarizes the rise of mandatory arbitration, the emergence of mass arbitration, and what my prior study identified as the key elements of the mass arbitration model. Part II updates and expands on the original study, with a particular focus on responses to the phenomenon that have emerged. Specifically, Part II catalogs and briefly analyzes an array of responses to mass arbitration that have arisen in the past two years—both those that were anticipated in the Mass Arbitration study and those unanticipated. Part III takes a step back and considers who, so far, can be described as “winners” and “losers” in the mass arbitration landscape. Among other things, taking this step back reveals arbitration warfare’s arbitrariness, which has important implications for claiming by way of mandatory arbitration in particular and in our civil justice system more generally
The Global Health and Care Worker Compact: Evidence Base and Policy Considerations
Get PDFBackground During the COVID-19 pandemic, and recognising the sacrifice of health and care workers alongside discrimination, violence, poor working conditions and other violations of their rights, health and safety, in 2021 the World Health Assembly requested WHO to develop a global health and care worker compact, building on existing normative documentation, to provide guidance to ‘protect health and care workers and safeguard their rights’.
Methods A review of existing international law and other normative documents was conducted. We manually searched five main sets of international instruments: (1) International Labour Organization conventions and recommendations; (2) WHO documents; (3) United Nations (UN) human rights treaties and related documents; (4) UN Security Council and General Assembly resolutions and (5) the Geneva Conventions and Additional Protocols. We included only legal or other normative documents with a global or regional focus directly addressing or relevant to health and care workers or workers overall.
Results More than 70 documents met our search criteria. Collectively, they fell into four domains, within which we identified 10 distinct areas: (1) preventing harm, encompassing (A) occupational hazards, (B) violence and harassment and (C) attacks in situations of fragility, conflict and violence; (2) inclusivity, encompassing (A) non-discrimination and equality; (3) providing support, encompassing (A) fair and equitable remuneration, (B) social protection and (C) enabling work environments and (4) safeguarding rights, encompassing (A) freedom of association and collective bargaining and (B) whistle-blower protections and freedom from retaliation.
Discussion A robust legal and policy framework exists for supporting health and care workers and safeguarding their rights. Specific human rights, the right to health overall, and other binding and non-binding legal documents provide firm grounding for the compact.
However, these existing commitments are not being fully met. Implementing the compact will require more effective governance mechanisms and new policies, in partnership with health and care workers themselves