Susan Morse

Does the Seventh Amendment provide a taxpayer with the right to a jury before the government imposes tax penalties? This issue is live at the Tax Court, at Courts of Appeals, and at the Supreme Court. Fortunately, the tax literature includes two entries on this topic, one by Professor Steve Johnson and another by Professor Bryan Camp. Both are somewhat skeptical about a jury trial requirement, thought they emphasize different aspects of the question. Their work should illuminate the conversation, and inform the litigation.

Few thought tax penalties attracted jury rights prior to the 2024 Supreme Court decision in Jarkesy v. Securities and Exchange Commission. But after the Court decided that jury rights attached to securities fraud penalties, an analogous question arose in tax. A cert petition is pending in Hirsch v. U.S. Tax Court, where the Eleventh Circuit refused petitioner’s request for a writ of mandamus on the grounds that the Tax Court had unconstitutionally denied them a jury trial. Tax practitioners are following Hirsch closely. Continue reading "Jury Rights in Civil Tax Cases??"

The post Jury Rights in Civil Tax Cases?? appeared first on Jotwell.

Anita Bernstein

In 2019 the phrase “a world designed for men” saw print when the Brazilian-English activist Caroline Criado Perez put it into the subtitle of a book. Criado Perez may not have been the first to notice the pattern of extraordinary unfairness documented in Invisible Women: Exposing Data Bias in a World Designed for Men but she wrote the most devastating report on the phenomenon I’ve ever seen, and I have been paying attention. Products Liability in a World Designed for Men by Melissa F. Wasserman connects this problem of gendered “who benefits? who pays?” with a careful, well-argued, and scientifically informed call for law reform.

The neutral-on-the-surface biases favoring men that Professor Wasserman examines in this article fit within design defect as a subset of products liability doctrine. The category may seem narrow. It’s not. Products Liability in a World Designed for Men takes 52 pages to document the issue it addresses, review the governing law, and offer recommendations. Limited space rather than any lack of urgent examples, I am sure, shortened what Professor Wasserman shares here. Continue reading "Male Supremacy as a Products Liability Defect"

The post Male Supremacy as a Products Liability Defect appeared first on Jotwell.

Ezra Rosser

Professor Heather Abraham’s new Article, Sheltering Discrimination: Fourth Amendment Challenges to Voucher Inspections, embodies the sort of practical, important work that often comes out of the clinical trenches. The Article focuses on what Professor Abraham describes as a second-generation effort by landlords to avoid renting to low-income tenants whose rent is partly covered by a housing voucher. As the Article notes, landlords in recent years have had some success arguing that laws prohibiting source-of-income (SOI) discrimination violate their privacy rights when such laws are combined with the inspection regimes that accompany vouchers. Through careful doctrinal analysis, Professor Abraham convincingly pushes back on this Fourth Amendment claim while also suggesting reasons other tenant-side arguments are likely to fail.

What stands out about the Article is how forward-looking it is. In recent years, SOI laws have proliferated such that Professor Abraham reports that “at least 24 states and 150 localities have banned SOI discrimination,” which protects “approximately 60% of all Housing Choice Voucher (HCV) voucher holders nationwide.” (P. 5.) In areas without SOI laws, landlords are free to openly state that they will not accept vouchers. But in areas with SOI laws, landlords have had to be creative. One emerging argument is that because of the inspection regime built into voucher programs—typically involving a pre-tenancy inspection and the possibility of subsequent inspections of both the premise and related written and electronic documents—SOI laws are unconstitutional. This Fourth Amendment-based challenge is gaining traction; a few courts have bought this privacy argument and have sided with landlords on their facial challenges to SOI laws. Sheltering Discrimination offers practitioners a roadmap for responding to such claims. Continue reading "Do Landlord Privacy Rights Trump Voucher Inspections?"

The post Do Landlord Privacy Rights Trump Voucher Inspections? appeared first on Jotwell.

Abdurrahman Atçil

In his famous 1957 Oliver Wendell Holmes Lecture at Harvard, the renowned British legal philosopher H. L. A. Hart presented a vision of law as a system of rules validated through institutional procedures and not dependent on moral merit for their validity. Later that year, his American colleague Lon Fuller countered that only an “inner morality” imbues law with its binding force; normative statements lacking moral merit do not qualify as law. This debate, states Allan C. Hutchinson in Hart, Fuller, and Everything After, defined the agenda of Anglo-American jurisprudence for decades afterward; but, closely bound up with the historical and intellectual conditions of its day, he argues, it offers a poor framework for discussing the diversity of legal practices beyond the postwar liberal societies of Britain and the United States. As an historian of Ottoman law, I’m inclined to agree.

One of the great challenges that historians in fields like mine face is the difficulty of connecting the literature on modern legal theory with the normative worlds of societies far different from the ones that figures like Hart and Fuller addressed. By unpacking the seemingly timeless questions at the center of the Hart–Fuller debate, Hutchinson instead presents law as an ongoing social activity shaped by interpretation, institutional practices, and political and moral struggles. In doing so, he makes legal theory speak to these other worlds, and thereby makes it more useful for a much broader audience. Continue reading "Legal Theory, Law, and Politics: Making Theory Useful"

The post Legal Theory, Law, and Politics: Making Theory Useful appeared first on Jotwell.

Albertina Antognini

Law has mostly dealt with unmarried couples by adopting a wait-and-see approach. Rather than states passing legislation ex ante, courts address issues that arise ex post. Among the most commonly litigated questions is property ownership – where courts are asked to sort out who owns what and who owes what to whom. While much scholarship has considered how law should distribute such property, there is precious little information on what cohabitants themselves want. John Morley and Yair Listokin’s article, What Should You Owe Your Ex? A Survey of Attitudes About the Law of Married and Cohabiting Relationships, provides a timely and important intervention, offering an empirical assessment of what cohabiting couples, as compared to married couples, desire when their relationship ends.

Morley and Listokin thus seek to fill a gap not primarily in law (although that too), but in knowledge: “We bring these wishes into focus by directly asking people in a systematic way for the first time what they want for themselves.” (P. 37.) To do so, they surveyed a nationally representative sample of around 3,000 American adults, half of whom were married and half of whom lived with a partner in a nonmarital relationship. Continue reading "Who Wants What?"

The post Who Wants What? appeared first on Jotwell.

Nina Varsava

In Sustaining Stare Decisis as a Post-Merits Determination, Peter Povilonis offers an insightful and novel analysis of the U.S. Supreme Court’s stare decisis jurisprudence. He characterizes stare decisis as a procedural doctrine that, in its proper form, is separate from merits determinations. Just as some doctrines, including statutes of limitations and jurisdiction, are pre-merits matters, stare decisis, Povilonis argues, is meant to be a purely post-merits analysis.

This means that, in the horizontal context, stare decisis has effect if and only if the Court first determines that the precedent at issue is erroneous (or assumes for the sake of argument that it is erroneous, e.g., because the Justices disagree about that): the analysis “comes subsequent to a determination on the merits” (P. 671). The important upshot is that, once the Court makes the merits determination and moves on to the stare decisis inquiry, it can’t go back to re-assess the merits or improve the holding of the precedent. That, argues Povilonis, would be inconsistent with the post-merits methodology of stare decisis. Continue reading "Post-Merits Stare Decisis"

The post Post-Merits Stare Decisis appeared first on Jotwell.

Erin F. Delaney

Earlier this year, Jimmy Lai, a pro-democracy advocate in Hong Kong and a critic of China, was sentenced to 20 years in prison after being convicted of colluding with foreign forces and publishing seditious material in violation of the Beijing-originated National Security Law of 2020.  Attentive observers would have seen the writing on the wall for Lai in 2022, when British lawyer Tim Owen KC was not allowed to join the case in his defense.

In his fascinating article, Globetrotting Advocates: Foreign Barristers in Hong Kong Courts, Trevor T.W. Wan explores the history and practice of ad hoc admissions of foreign barristers to the courts of Hong Kong, and in so doing highlights the way in which the practice, once understood as a benefit to Hong Kong, is now seen as presenting an increasing threat to Beijing’s national security agenda. Continue reading "Litigation in the Shadows of Empires"

The post Litigation in the Shadows of Empires appeared first on Jotwell.

Christopher J. Sprigman

For several decades now, a debate about whether or how to regulate cultural appropriation, especially of indigenous creations, has been brewing at the edges of American IP scholarship. This topic has, however, never really broken through—that is, it has never surfaced as an issue that captures the attention of the field in the U.S. as a whole. It is heartening to read recent contributions to the literature from scholars including Margo Bagley, Sonia Katyal and Angela Riley, Jessica Kisser, Ruth Okediji, Michael Goodyear, Trevor Reed, and Aman Gebru who recommend some form (often narrow) of protection against cultural appropriation and/or the unauthorized use of traditional knowledge. Another smaller recent legal literature raises questions about such protections (including noting weaknesses in the normative case for legal rules to restrict cultural appropriation).

Of these many worthy contributions, I especially want to praise Aman Gebru’s article Remediating Cultural Appropriation. Gebru provides three invaluable services to the literature on cultural appropriation. The first is a careful articulation of the various possible harms and benefits of cultural appropriation. This analysis is fair-minded and inclusive, reviewing and critically assessing the literature that fills out both sides of the ledger. Second, Gebru proposes a taxonomy to assess varieties of cultural appropriation claims with particular focus on two factors: the cultural symbol’s level of “diffusion” (i.e., is the element shared by other cultures, or is it strongly identified with a single originating culture?) and the extent to which the use is commercial in nature. Continue reading "What Should IP Law Do (if Anything) About Cultural Appropriation?"

The post What Should IP Law Do (if Anything) About Cultural Appropriation? appeared first on Jotwell.

André den Exter

Caught in Language. The importance of speech and language therapy for the Youth Justice System is the result of a PhD research project examining how juveniles with speech, language, and communication needs participate in the criminal justice system. The research’s findings have important implications for health law, including informed consent and shared decision-making in health care.

The research focuses on combining different perspectives, including criminal law, speech therapy, and health law, also known as forensic speech therapy (science involving speech and language disorders, providing testimony in legal cases on diagnoses, treatment protocols, and patient prognoses). This multidisciplinary approach, combined with the unique findings, makes this book highly relevant to legal professionals in law enforcement, the judiciary, and juvenile care institutions in the Netherlands and abroad. The book’s bilingual approach makes it accessible for non-Dutch readers. For most lawyers, forensic speech therapy is currently uncharted territory. It is a relatively new discipline, primarily known in common-law countries such as Australia and the United Kingdom. Continue reading "Speech Therapy and Juveniles: What’s in it for Health Law?"

The post Speech Therapy and Juveniles: What’s in it for Health Law? appeared first on Jotwell.

Luke Herrine

We have become inured to a world of surveillance so pervasive it would make the Stasi blush. Much of this infrastructure is built on our nominal consent in the guise of consumption choices. We carry around tracking and recording devices in the form of “phones” because they also contain navigation tools, music libraries, messages with our intimates, games, cameras, and a huge variety of other tools to make our lives more convenient and connected. We accept that our online lives will be monitored, not always thinking of it, because doing so makes it possible to provide many services for free and makes it easier to find things and people that fit one’s idiosyncrasies. And, as brick-and-mortar stores close and more people stay in touch with each other through networked communication devices, it is increasingly difficult to live one’s life without “opting into” a surveillance architecture. Many (most?) of us would rather that the conveniences and connectivities of modern life not be connected to a network of surveillance—especially as the second Trump administration knits together these networks of commercial surveillance even more closely with state surveillance and repression–but we find ourselves feeling powerless to do much about it.

We association most of the modern infrastructure of nominally opt-in surveillance with the rise of Big Tech, but  as Nakita Cuttino’s new article The Presumption of Creditworthiness reminds us, before Big Tech came credit reporting. Over the second half of the Twentieth Century, credit reporting agencies developed the basic approach of collecting data that businesses had on their customers without customer consent and compiling into files that other businesses and law enforcement agencies could buy. Once Fair Isaac Corp. developed its initial credit scoring model, the credit reporting industry also became the first to sell its data to firms with proprietary models that could be used to automate customer evaluation and, eventually, to segment consumer markets (and to target vulnerable customers with the most predatory deals). And as consumer credit became a core part of American life, the data collected by these companies became increasingly valuable for all kinds of businesses (employers, landlords, insurance companies) and the difficulty of opting out of the surveillance dragnet became increasingly high. Continue reading "How Mass Surveillance Imposes Penalties on the Unsurveilled"

The post How Mass Surveillance Imposes Penalties on the Unsurveilled appeared first on Jotwell.