William Smiley

Mustafa Aksakal’s new book, The War that Made the Middle East, offers a pointed and relatively succinct (182 pages) reconsideration of the First World War in that region. It comes at a timely moment, amidst wars across the region, and with the foundations of international law and international order deeply cracked, if not collapsing. In Aksakal’s telling, the First World War caused a similar breakdown. The avarice of Britain and France, and the countervailing ruthlessness of the Unionist cabal which controlled the Ottoman Empire, broke and remade the Middle East—not only through war, famine, and destruction, but by changing political and legal visions.

I found myself most engaged by the prominent, if unadvertised, role that law—both domestic and international—plays in Aksakal’s story. In 1908, Ottoman subjects from many diverse communities—Christians, Jews, and Muslims, speakers of Turkish, Arabic, Greek, Armenian, Ladino, and more—launched a popular revolution to transform the empire into a constitutional monarchy (reviving a constitution that had first been promulgated, then promptly abrogated, in 1876). Two elections were held before the war. To be sure, many subjects were oppressed and discontented, and visions for Ottoman reform abounded—but almost always within the frame of constitutional empire. Greek, Armenian, Arab, and Jewish activists sought democracy, equality, decentralization, or autonomy (on this point, see also Aimee Genell’s brilliant new book Empire by Law) within the empire. Continue reading "War, Empire, and Authoritarianism in the Middle East"

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Andrew Halpin

In their essay, Bridges Between Realism and Formalism, introducing a special symposium issue of the American Journal of Jurisprudence, Andrew Gold and Thilo Kuntz provide a clear and helpful survey of the impressive array of contributions, with a stimulating variety of perspectives on the relationship between Realism and Formalism. More than this, the authors produce an illuminating commentary on the ways these differing perspectives might be related and offer suggestions for possible directions for future research.

The contributions to the symposium are considered in two sections of the essay. In Section I, Gold and Kuntz emphasize the role of legal concepts and the possibility of change to those concepts, drawing on Natasha Sarna and Kevin Tobia’s empiricist study of “reasonableness” (Pp. 123-24), Andrew Gold and Henry Smith’s portayal of the mechanisms of conceptual change in the law (P. 124), Shyamkrishna Balganesh and Taisu Zhang’s account of how legal reasoning can employ concepts so as to integrate internal and external considerations on the development of the law (Pp. 124-25), and Thilo Kuntz’s employment of artifact theory to provide an explanation of how legal change is possible, but with constraints upon judicial activism. (P. 125.) Continue reading "Realism or Formalism or Both?"

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Michael W. Carroll

Trademark law in the United States requires use of a mark in commerce as the basis for both acquisition and infringement of exclusive rights. This requirement is justified, in part, as a way of focusing trademark on its core purpose—protecting the mark owner’s goodwill that arises from such use. Most of the rest of the world relies on the formality of registration as the basis for protection. How did the law in the United States take this nearly-unique evolutionary path? In her extensively-researched article, Professor Barbara Lauriat succeeds in correcting the record about this question by lengthening the relevant historical period to at least the sixteenth century in England and by showing that commercial goodwill had an established recognition in both business practice and in common law as a business’s residual asset distinct from its trademarks.

Lauriat makes a number of contributions to the literature. First, she provides a tantalizing account of the not-always coherent legal treatment of goodwill as a distinct form of intangible property. Second, she argues that understanding this history informs how judges in the nineteenth and early twentieth centuries incorporated protection for goodwill with trademark protection in the United States. Third, by providing a comparative lens, she shows how trademark law in the United States and the United Kingdom share ancestral roots but took quite different evolutionary paths. Last, she argues that even though the registration-based protection for marks in the United Kingdom treats them as personal property that can be assigned separate from a business’s goodwill, the scope of protection in the United Kingdom can be constrained, and is likely to be narrower than in the United States, because the suppleness of a use-based conception of protection has enabled courts to extend protection beyond trademark law’s traditional scope. Continue reading "Distinguishing the Historical Roots of Goodwill From Trademark Law’s Origins"

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Kathleen Claussen

International standards are ubiquitous in our everyday lives, but the legal literature spends little time analyzing them. The design of USB cables and chargers is a good example, as are paper size, Wi-Fi and Bluetooth specifications, credit card shape, and barcode geometry. Each of these is regulated by an international standard that countries and businesses have adopted across the global marketplace. International travelers sometimes bemoan the lack of an international standard: if your trip takes you to the United Kingdom, France, and Switzerland, you need three types of adapters for your electronics, despite not having traveled all that far.

Although the proliferation of electrical outlet types may not pose immense geopolitical strife, the race to design new standards and get them adopted is different. In their forthcoming work, Soft Power, Hard Standards: How strong is the ‘Brussels Effect’ in international standards?, Lucian Cernat and Hannah Preuss bring new data to analyze who is winning. Continue reading "International Regulatory Geopolitics"

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Amy Monahan

Ever since health insurers began engaging in utilization review, consumers have expressed frustration and anger over the process. Decades ago when HMOs were widespread, the frustration and anger tended to be directed toward the faceless bureaucrats or “bean counters” who were overruling the patient’s treating physician. Today, as Professor Oliva establishes in her article, Regulating Healthcare Coverage Algorithms in the Shadow of ERISA, coverage denials are often generated by a proprietary AI rather than a human reviewer. These coverage algorithms process prior authorization requests and claims at a speed no human could match, trained on data optimized for cost containment, shielded from scrutiny by trade secret claims, and subject to essentially no regulatory oversight.

When algorithmic coverage denials are combined with ERISA’s notoriously limited remedies and broad preemption of state law, consumers find themselves in a Kafka-esque situation with limited ability to obtain the coverage to which they are entitled. And this situation is not rare. As Professor Oliva’s article carefully explains, one recent survey found that 84% of health insurers utilize AI or machine learning, with most using these tools for utilization management and prior authorization. Further, some widely-used coverage algorithms are alleged in litigation filings to have overturn rates of ninety percent on appeal. Continue reading "An Innovative Solution for Robo-Denials"

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Shayak Sarkar

Family law scholars examine caregiving’s formal and informal systems. Literatures in both economics and law have relatedly tried to document who provides care for children and older and chosen family members, how, and on what terms, and the consequences those arrangements have on other family members’ (especially women’s) engagements outside the home. Tradeoffs emerge: how do we preserve access to care without sacrificing quality (broadly defined)?

In this spirit, Luis Faundez and Manisha Padi focus on childcare, carefully examining California’s daycare licensing regimes and how standards enforcement affects childcare facilities. Their study draws upon an increasingly popular method of data analysis in the law and economics field: exploiting the fact that officials enforce the same laws with significantly different standards and severity. Continue reading "Regulating Paid Childcare"

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Maneesha Deckha

In jurisdictions around the world, constitutions are held up as venerable national texts available to strike down legislation and government action offending basic societal commitments. Constitutions are seen as forces of good and not just due to their explicit rights-granting provisions, but also the unwritten principles courts have held them to house. But similar to how law schools and other educational institutions have “hidden curricula” that can subvert an institution’s formal written principles of inclusivity and equality, recognizing unwritten constitutional provisions can cut in different directions. Specifically, how might they undermine more formal equality provisions?

In The Unwritten Constitution and the More-than-Human World, Jessica Eisen considers the case of the Canadian Constitution, which many regard as a model for equality and justice due to both its written and unwritten commitments. Eisen’s article provides a valuable corrective to the sense of the implicit goodness of the Canadian Constitution. It illuminates the “ignominious” (P. 571) unwritten principles that “shap(e) constitutional praxis even as they are ignored, denied, or repudiated by actors within the system.” (P. 553.) Continue reading "Pursuing Interspecies Justice in the Shadows"

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Alma Magaña

In Marisol Orihuela’s The Lawyer’s Quandary: Client-Center Lawyering in the Treatment Paradigm, we get an in-depth discussion about the dilemma criminal defense lawyers face when they are counseling individuals with atypical decision-making capacity. Specifically, Orihuela focuses on individuals with personality conditions who need to decide if they want to enter mandated treatment in lieu of prison. The lawyer’s role, she writes, “requires a candid and honest assessment of how best a client might achieve the client’s goals in their legal matter.” However, systemic flaws regarding accessibility to treatment for personality conditions, coupled with decision-making impairments caused by such conditions lead to an impasse. What is the lawyer supposed to say or do?

Legal ethical rules and lawyering models do not provide clear solutions. This article offers a thorough first step toward filling this gap. Further, Orihuela’s treatment of this kernel of an issue generates a much broader critique of the criminal legal system by highlighting systemic flaws and raising concerns about the fairness of criminal proceedings for individuals with personality conditions. Among the ways it does this is by demonstrating the limits of incremental reform in indigent criminal defense and by underscoring that the law and those in power consistently fail to consider, let alone accommodate, poor and disabled people. Continue reading "Counseling at the Edge of Decisional Autonomy"

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Sergio J. Campos

Any serious study of civil procedure in the United States should learn from other procedural systems. Comparative study has a number of advantages. It can provide insights about alternatives. It can shed light on beneficial features of our own procedural system that we take for granted. And it can generate questions for further study.

In Hyrniak’s Erosion: Summary Judgment in Ontario, Suzanne E. Chiodo, Gerard J. Kennedy, & Alyssa King conduct an insightful and nuanced empirical study of summary judgment motions in Ontario provincial courts (the equivalent of state courts in the United States). The motivation for the study is a tension between two views of summary judgment. The first, endorsed by the Supreme Court of Canada in Hryniak v. Mauldin (2014), views summary judgment as a vehicle for increasing access to justice by reducing the costs of litigation. The central idea is that the amount of procedure should be “proportional” to the case, and in some lower-stake cases providing a full trial would be a form of “undue process,” raising costs and discouraging plaintiffs from filing suit. The second, endorsed by the Ontario Court of Appeals, discourages summary judgment because such motions are themselves costly and can hinder the “full appreciation of the evidence and issues” needed to resolve a case. Continue reading "Learning from Others: Summary Judgment in Canada"

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Robert Hillman

Arbitration in Name Only seeks to resolve the many issues generated by current-day arbitration agreements between a business drafter and consumers or employees.  The author, Myriam Gilles, observes that under the Supreme Court’s interpretation of the Federal Arbitration Act (FAA),¹ courts generally enforce such agreements even though the terms call for arbitration heavily in favor of the business drafter, provide for cumbersome procedures, and allow for unilateral modification  and termination by the business.  Such terms negate “arbitration’s definitional core,” the article points out, which consists of neutrality, “procedural minimalism,” and mutuality of obligation.

The article ably fills out the meaning of each characteristic of arbitration’s core mentioned above. In part, neutrality means the absence of a stake by the adjudicator on one side or the other.  Procedural minimalism means that the procedure must be “streamlined,” “informal,” and not “cumbersome,” thereby ensuring the efficiency of the process. Mutuality means that both parties are bound, not that one party has the unilateral right to change or terminate the arbitration agreement at will. Continue reading "What is in a Label? The Problem of Imitation Agreements to Arbitrate"

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