The Legal Profession Must Confront Its Role in Slavery

Acknowledging and discussing the modern citation of slave cases is a first step. The Citing Slavery Project provides a database of slave cases and the modern cases that continue to cite them as precedent. American slavery generated thousands of legal disputes. Lawyers legitimized slavery by fitting cases involving enslaved people into standard legal categories. The law of slavery became an important part of American law. Such support from lawyers helped slave commerce function. American courts directly participated in slave commerce, frequently auctioning enslaved people to satisfy debts. These sales even took place on courthouse steps. Courthouse auctions forcibly separated families. They helped enslavers to concentrate economic power. After emancipation, lawyers continued to treat slave cases as good law. They even enforced debts based on contracts for enslaved people. The failure of the legal profession to grapple with its role in the law of slavery is a failure of transitional justice. Lawyers have obscured their role in slavery by never fully acknowledging it. Today, American judges and lawyers continue to cite slave cases for fundamental legal propositions. These citation practices cause serious harm and reveal the legal profession’s ethical limitations.Justin Simard, assistant professor, Michigan State University College of Law, has research that studies the modern citation of slavery and will present on this topic

At What Cost: Medicare’s Cost- Saving Measures in Skilled Nursing Facilities and Their Impact on Vulnerable Populations

As the highest spender of health care in the world, the United States continues to look for ways to reduce its spending. As the main health insurance provider for the elderly and disabled, Medicare shares this mission. Unfortunately, some of Medicare’s cost-saving initiatives in one of its most critical care settings, Skilled Nursing Facilities, cause disproportionately negative impacts on vulnerable populations. This Note analyzes three of Medicare’s cost-saving measures in Skilled Nursing Facilities, namely value-based purchasing programs, the twenty-day limit on full coverage, and the practical matter provision. This Note highlights how these measures have a disparate negative effect on the most vulnerable populations, and then recommends solutions to mitigate these outcomes while still allowing overall cost savings for patients and the government

Discriminating Alignment in the Innovation Sphere

Contracts play an important role in innovation. As a result, some. scholars have proposed theories highlighting contract provisions as devices that can serve to informally enforce agreements and build trust between parties. Others emphasize the hierarchical provisions between firms to promote efficiency. Yet another group views these agreements as a mechanism to institutionalize learning and protect property interests. This Article offers a new theory. To understand a firm’s contractual choices and governance, we must look at how the same provisions in different contracts may have distinct meanings or operate differently in different contexts. So, scholars must give context to these contracts by evaluating how specific industries utilize these provisions in different ways. Separate industries may use the same provisions––like information sharing, for example––within their contracts, but they will pair these provisions with different clauses or private strategies, resulting in different governance choices. This Article looks at two areas––the manufacturing and biopharma industries­­––because these fields use collaborative agreements with similar provisions and suggests that the same provisions actually work in very different ways. The theory of discriminating alignment suggests that parties within these two industries use contractual and other strategy choices differently in order to meet their separate goals in a cost minimizing way. This Article reaches this conclusion based on qualitative interviews to learn about how participants in the biopharma industry use provisions and understand them. It draws on prior empirical work and scholarship to analyze how the same provisions operate differently within the manufacturing industry. It concludes that the same contract provisions operate differently in manufacturing and biopharma, leading to a divergence in governance choices. In manufacturing, where relational sanctions are possible, parties can combine informal enforcement with formal provisions to achieve their goals. This is consistent with a “braiding theory” of formal and informal enforcement. By contrast, biopharma parties have a joint interest in collaborating early on to achieve profits and success, which renders informal enforcement unhelpful. Biopharma uses formal provisions––including information transfer provisions––because they are the best means of facilitating a successful complex project. However, when the interests of parties within biopharma diverge, property provisions take over. This Article echoes Professor Macaulay’s view that to to understand governance within a specific industry, the industry must be analyzed using qualitative interviews

Climate Liberalism and Decarbonization

Existing climate policy goals require dramatic and rapid reductions in greenhouse gas emissions. Achieving such reductions within the desired time frame is a tremendous challenge, particularly through conventional regulatory approaches. The conventional approach to environmental problems is to treat such problems as “market failures” that can be corrected by government intervention, such as through regulation. Such approaches are constrained by various sources of government failure that are exacerbated by the scale and scope of the problem. The knowledge problem, administrative transaction costs, and limits on regulatory throughput capacity all hamper the use of traditional regulatory tools to address the problem of climate change. An alternative approach to environmental problems views such problems not as “market failures” but as a failure to have markets in relevant contexts. This approach counsels looking for ways to extend market institutions to cover environmental resources and encourage decentralized, spontaneous responses to price signals as a means of encouraging environmentally desirable behavior. Such approaches have been successful at helping to address many environmental concerns and at encouraging net dematerialization in advanced market economies. These experiences offer lessons for how to more effectively encourage decarbonization and address climate change. Among other things, they suggest a greater emphasis on the conditions that foster innovation and a greater reliance on fiscal tools than on regulatory interventions. This Essay was prepared for the 2024 Iowa Law Review Symposium, “The Economic Implications of Climate Change.

Decision-Making Supports and Cognitive Decline

For persons with a range of cognitive disabilities, supported decision-making, rooted in a human rights approach to disability, has emerged as a tool that permits them to make legally binding decisions and avoid guardianship. As supported decision-making policy has evolved in the United States, state statutes have primarily focused on formal agreements through which individuals can designate trusted supporters to assist in obtaining information, processing that information, and communicating a decision. This Article argues that supported decision-making has promise for preserving the autonomy of persons living with dementia, but that the model of a supported decisionmaking agreement embodied in the state statutes does not fully address the circumstances of those experiencing cognitive decline. The different context requires a different and broader range of supports for decisionmaking. The Article proposes supplemental policy interventions to be more responsive to the needs of people experiencing cognitive decline. These include developing a values-based planning process that combines supported decision-making with advance directives, promoting enhanced guardianship diversion services, and more explicitly requiring decisionmakin

Causation’s Due Process Dimensions

For decades, courts have grappled with the tension between compensating victims of mass harms and maintaining fairness to defendants when causation is difficult to prove. This Article argues that the Supreme Court’s due process jurisprudence provides a relevant framework for navigating this tension. We contend that the Court over the last three decades has established a consistent due process approach in punitive damages and personal jurisdiction cases, which is rooted in antecedents tracing to the nineteenth century and relies on a nexus of interests that balances individual rights, state interests, and federalism concerns. This framework, we argue, has significant implications for evaluating the constitutionality of tort doctrines like market-share liability and innovator liability, which challenge traditional notions of causation. Our analysis reveals that these doctrines may be vulnerable in some applications to constitutional challenge under the Court’s modern due process approach. We trace the evolution of the Court’s jurisprudence, demonstrating how it emphasizes the relationship between plaintiff’s harm, defendant’s conduct, and the forum state’s interest. Applying this framework to market-share and innovator liability, we suggest that causation itself may have constitutional dimensions. This finding has far-reaching implications for mass tort litigation and could reshape how courts approach cases involving multiple actors and attenuated chains of causation. By bridging the gap between due process jurisprudence and tort law, this Article offers a new perspective on longstanding debates about liability in complex cases and provides a roadmap for courts navigating these challenging waters

Evaluating Hospital Procedures for Authorizing Emergency Abortion with Nadia Sawicki

Evaluating Hospital Procedures for Authorizing Emergency Abortion: All states that have banned or restricted abortion after the Supreme Court’s decision in Dobbs v. Jackson Women\u27s Health offer some exception for abortions that are medically necessary to save a patient’s life during an emergency. However, the internal procedures for reviewing and approving requests for emergency abortion vary dramatically from institution to institution. In some hospitals, the treating physician can make this judgment on their own; in others, an ethics committee must review the decision; in others, hospital counsel may impose limits on physicians’ authority to terminate pregnancy. Sawicki will offer insights as to how well each of these decision-making procedures balance patient safety, clinical standards of care, medical ethics and legal risk, with the goal of encouraging hospital attorneys and health care providers to thoughtfully select approaches that best meet their patients’ needs

Your Car is Killing You: Reducing Traffic to Promote Healthy Communities

In the United States, cars contribute to a bevy of health problems, constituting a large cost to U.S. taxpayers who must subsidize the medical treatment that stems from them. This Note explores solutions to this health problem by attempting to minimize the number of cars in urban spaces. In particular, it looks at reworking statutory funding strategies for bicycle lanes, calls for using certain types of bicycle lanes that will lead to wider utilization, and advocates for rezoning urban areas to promote density

Injunctive Restraint

Preliminary injunctions against government action have evolved from extraordinary remedies into routine instruments of political contestation, with both Republican and Democratic administrations finding their initiatives halted by nationwide judicial orders. These injunctions serve vital functions in our constitutional system—preventing irreparable harm to fundamental rights and providing necessary checks on executive power in an era of congressional gridlock. Yet their increasing use has generated legitimate institutional concerns, particularly when a single district judge, often selected through strategic forum shopping, can unilaterally suspend national policies of significant importance. This Article examines this tension between the necessary role of nationwide injunctions in protecting constitutional rights and the threat that current practices may pose to judicial legitimacy and consistent governance. The Article evaluates two proposed reforms: requiring substantial security bonds and reviving three-judge district courts for nationwide injunction cases. It demonstrates that increasing bond requirements would create unacceptable financial barriers to judicial review, particularly for vulnerable plaintiffs seeking to vindicate constitutional rights. By contrast, a modernized three-judge court system—structured with targeted jurisdiction, modified appellate review, and technological enhancements—offers a promising institutional solution that addresses judge-shopping concerns without impeding access to justice. Drawing on historical experience and contemporary needs, this Article proposes a balanced approach that preserves the essential function of preliminary injunctions as a check on government overreach while enhancing their deliberative legitimacy and reducing their most partisan applications. This manuscript is to be published in Volume 63.1 of the Harvard Journal on Legislation and may not be copied without the Journal’s written permission