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Murderous Mothers & Gentle Judges: Paternalism, Patriarchy, and Infanticide
No full textAnne, a 20-year-old trainee nurse in England, became pregnant by a U.S. serviceman who had returned to the States. When she visited her parents in Ireland for her annual holiday, she knew she was pregnant and due to give birth. On the day of the birth, she felt unwell and remained in bed, secretly giving birth alone that evening in her bedroom. She admitted that she killed her infant moments after the birth: Immediately after the baby was born I baptized it. I did not know whether it was a male or a female baby. I was not sure whether it was dead or alive. I tied a small green ribbon around the baby's neck tightly and then wrapped it in a kilt skirt and placed it in my large suitcase-a blue-grey fibre case-that was in my bedroom. The baby did not scream. Afterwards, she went to a stream behind her house where she washed herself and rolled the afterbirth in some newspaper. She returned to bed and remained there all night. When she got up the next morning, she collapsed on the floor, and medical attention was sought. She was charged with murder but at the preliminary hearing at the District Court the charge was reduced to infanticide. She was convicted of infanticide at the Circuit Criminal Court. The trial judge, stating that he "felt sorry for her" but that he also had a "duty to protect the public," sentenced her to "six months imprisonment, suspended on her entering into recognizances to be of good behavior for five years.
Beyond Nudging: Debiasing Consumers Through Mixed Framing
No full textThe consumer-protection literature can be divided into two camps: laissez-faire libertarianism and paternalism. Paternalism, as advanced by behavioral law and economics, calls for nudging consumers toward their utility-maximizing preference. Laissez-faire libertarianism, instead, calls for relying on rational-choice theory and the free market to allocate consumer goods. Although each camp presents the other as its diametric opponent, this Note shows that this dichotomy is overstated. Neither camp is incompatible with the other, nor infallible on its own. Through an original behavioral study, this Note reveals flaws in the fundamental assumptions of both camps: that no information can be conveyed neutrally (behavioral law and economics) and that consumer-oriented regulation diminishes autonomy (rational-choice theory). It does so by focusing on an understudied form of consumer-protection regulation: mixed framing. Legal scholars and regulators have largely ignored this phenomenon, yet it offers a more robust and actionable regulatory approach than the existing literature and one that is distinct from both paternalism and libertarianism. By examining the case study of food-safety regulations, this Note sketches the analytic and normative case for why regulators should embrace mixed framing. Using a process of debiasing through mixed framing, agencies can promulgate rules that minimize the risk of deceptive advertising tactics and maximize the provision of neutral and complete information—without running afoul of the First Amendment or falling into paternalistic restrictions on autonomy
State Courts and Constitutional Structure
No full textIn a famous 1977 article, Justice William Brennan called on state courts to interpret the individual-rights provisions of their state constitutions more expansively than analogous federal guarantees. Over the years, state constitutions have served as the foundation for important individual-rights decisions, yet their provisions remain unfamiliar to and often ignored by lawyers, scholars, and judges. In an insightful new book, 51 Imperfect Solutions: The Making of American Constitutional Law, Judge Jeffrey Sutton renews Justice Brennan’s call for judicial federalism but recasts it in a number of important ways. Most significantly, he invites us to understand state constitutionalism not solely or primarily as a liberal ratchet, but instead as a structural feature of our governmental system that modulates the timing, process, and substance of individual-rights enforcement. The conventional focus on the federal judiciary as the principal locus of rights innovation, he explains, does not accord with our constitutional history and disserves both state and federal courts. Urging greater balance between state and federal courts in protecting individual rights, Judge Sutton treats state constitutionalism as a mechanism for channeling constitutional debate in a diverse democracy and mitigating the risks of winner-take-all decision-making by the U.S. Supreme Court
Beyond Fragmentation: On International Law's Integrationist Forces
No full textWhat is a country to do when international law presents it with two conflicting yet binding norms? This question has been haunting international law scholars for the past two decades. It has arisen with particular fervor in the context of the proliferation of international legal regimes and, specifically, international tribunals since the 1990s
Bigotry in Time: Race, Sexual Orientation, and Gender
No full textIn a classic 1997 essay, Professor Reva Siegel focuses on how status hierarchies persist even as they are challenged, as the rules and reasons used to justify such hierarchies change through contestation-a phenomenon she labels "preservation-through-transformation." 1 Siegel begins from an important temporal observation, noting that "we often express judgments about subordinating practices of the past as if they were timeless truths."' But, she argues, condemning past practices of injustice can have the effect of legitimizing current practices. Because these past practices are now universally condemned, they cannot look so similar to current practices that are subject to dispute and debate.
Siegel's insight helps us to make sense of the role of bigotry in contemporary struggles over LGBT equality. Society now confidently condemns past practices of racial inequality-specifically segregation-as animated by bigotry. But this retrospective judgment fuels arguments of those who today oppose LGBT equality. Opponents of same-sex marriage and LGBT antidiscrimination law invoke bigotry in two related ways: First, they argue that, by comparing contemporary forms of LGBT inequality to past forms of racial subordination that have been universally repudiated, those supporting LGBT equality have unfairly cast their opponents as bigots. Second, they assert that by refusing to credit or make space for reasonable and sincerely held beliefs opposing same sex marriage, those supporting LGBT equality are themselves the bigots.
Fortunately, Siegel suggests an approach to inequality that applies lessons from the past to controversies in the present without viewing understandings that emerged from past struggles as timeless truths. Past practices were fiercely debated before their repudiation, so we must acknowledge that "[t]hat which we retrospectively judge evil was once justified as reasonable."' As Siegel instructs, "[i]f we reconstruct the grounds on which our predecessors justified subordinating practices of the past, we may be in a better position to evaluate contested practices in the present."8 In her deeply engaging manuscript, Who's the Bigot: Conflicts over Marriage and Civil Rights Law, Professor Linda McClain does just that-and, in the process, gives us a more clear-eyed assessment of the role that bigotry plays in struggles over inequality
Resisting the Inter-American Human Rights System
No full textIn a decision that shocked the inter-American human rights world, the Argentinean Supreme Court in February 2017 refused to comply with an InterAmerican Court of Human Rights decision ordering it to revoke a domestic judgment. At issue was a case in which Argentina's Supreme Court had affirmed a civil judgment that found two journalists liable for defamation for publishing stories about an unacknowledged child of former President Carlos Menem in 2001. Ten years later, the Inter-American Court found that the Argentinean Supreme Court's affirmation of the civil judgment against the journalists violated the journalists' right to freedom of expression under the American Convention on Human Rights-the region's core human rights treaty. The InterAmerican Court ordered Argentina's Supreme Court to "revoke the decision in its entirety." In 2016, Argentina's president asked the Supreme Court to comply with the Inter-American Court's decision and revoke the 2001 ruling, but the Supreme Court declined to do so, arguing that the Inter-American Court lacked the authority to order the revocation of a domestic judgment
Cold Corpses, Hot News, and Dead IP: The Reasons for and Consequences of a Legal Status of No-Property
No full textA strange feature of Anglo-American law is that human dead bodies do not legally belong to anyone, except insofar as a time limited "quasi-property" right permits descendants to bury the body of a deceased relative. But dead bodies are not alone in the
realm of no-property. There are other matters, too, that are also un-ownable in principle, particularly those relating to intellectual
efforts. Some of these efforts and achievements cannot become intellectual property (IP) at all, and others lose property status
after the expiration of their IP terms; I refer to all these as NIPs (for "non-IP").
Unlike intellectual matters, which do not deteriorate with use, corpses are finite objects, and finite objects are generally subject to overuse if left in open access. One might think that human remains are unlikely to suffer overuse, not only because of their disturbing character, but also because any value they have is limited to a small number of persons, especially descendants. But in fact, for several centuries, third parties have found increasing use value in human remains, first for anatomy lessons and, more recently for medical transplantation and research.
How is the lack of property explained in the case of dead bodies on one hand and NIPs on the other? Is there any relationship between what seem to be very different kinds of subject matter? This Article examines a set of standard reasons why some things cannot be owned and argues that despite some differences, there are also unexpected parallels between NIPs and corpses with respect to their no-property status.
A standard theory of property argues that property rights evolve in things as those things become increasingly valuable. While the law halts formal property both for corpses and for NIPs, both have great value for some parties. Thus, perhaps more disturbingly, there are also parallels between the ways that interested parties attempt to evade the no-property status of corpses on the one hand and NIPs on the other. While propertization is not the only answer to these evasions, it may be that corpses are becoming more propertized, while IP is becoming less so
GINA, Big Data, and the Future of Employee Privacy
No full textThreats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. We argue that the Genetic Information Nondiscrimination Act (GINA) offers a blueprint for preventing employers from breaching employee privacy. GINA has faced significant criticism since its enactment in 2008: commentators have dismissed the law as ill-conceived, unnecessary, and ineffective. While we concede that GINA may have failed to alleviate anxieties about medical genetic testing, we assert that it has unappreciated value as an employee-privacy statute. In the era of big data, protections for employee privacy are more pressing than protections against genetic discrimination. Instead of failed legislation, GINA could represent the future of employment law
