Month: November 2022

From the Northwestern University Law Review:

The Northwestern University Law Review will hold a winter exclusive cycle, accepting submissions from December 1, 2022 to January 6, 2023. Manuscripts submitted by January 6 will receive a decision by January 28, 2023.

Interested authors should submit their manuscripts to the Northwestern University Law Review via Scholastica, though there are supplemental terms that accompany winter exclusive cycle submissions. To begin, authors who submit through our winter-exclusive track agree to withhold their Article from submission to any other publication until receiving a final decision from the Northwestern University Law Review. Moreover, participating authors agree to accept a publication offer, should one be extended. In addition to a complete manuscript, we ask that authors submit (1) a cover letter that includes your name, Article title, word count, phone number, and email address and (2) a CV or résumé.

Additional information may be found on our Scholastica page. However, please contact Senior Articles Editor Regan Seckel at [email protected] if you have questions regarding the Winter Exclusive Cycle.

Posted by Sarah Lawsky on November 4, 2022 at 09:54 AM

Third Circuit Judge Stephanos Bibas warned of “judges gone wild” in a speech before Harvard Fed Soc. He called out “the show off, [for whom] it seems to be all about the judge’s musings, even the judge’s ambitions to be notice.” Jonathan Adler comments.

Coincidentally, Eleventh Circuit Judge Adalberto Jordan presented FIU’s Judicial Lecture on Wednesday. The conversation turned to writing style and when a “turn of phrase” is warranted and useful. As an example, Jordan wrote the majority opinion declaring invalid Florida’s “Docs v. Glocks” law prohibiting doctors from inquiring about the presence of guns in their patients’ homes. Speaking of the plaintiffs’ reasonable fear of discipline, he wrote that doctors “who are looking down the barrel of the Board’s disciplinary gun, are not required to guess whether the chamber is loaded.” Is that showing off and playing to Twitter? Or is it good writing? Is the answer, as Jordan added, you can’t force it or overdo it?

Update: Richard Bales (Northern Kentucky) shares a piece he wrote some time ago on prudence in using references–use references and in ways that are self-explanatory and remember that the point is to “lead your reader to a deeper understanding of your topic-not to impress the judge with your wit or your knowledge of cultural arcana.”

Posted by Howard Wasserman on November 3, 2022 at 11:28 AM

Today in my innovation seminar we are thinking about FemTech – the field of research, entrepreneurship, and technology innovation addressing women’s health – and beyond – issues. FemTech is growing, and there has never been a more exciting, and at the same time, challenging moment to use technology to correct the gender health and research gaps . As a new report shows, clinical trials too often are based on unrepresentative groups and data. Technology can help us study and track and learn about patterns and solutions to health issues, but of course technology can also serve to monitor women’s reproductive choices in illegitimate ways. We are reading today for class this, and I assigned a listen to this excellent podcast, https://femtechfocus.org/podcast/

Any examples of successful or much needed FemTech innovation most welcome! Here at University of San Diego we are also starting a local accelerator FemTech innovation engine.

Posted by Orly Lobel on November 2, 2022 at 04:29 PM

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Any examples of successful, or much needed FemTech innovation most welcome!

Posted by: Wordle today | Aug 21, 2023 6:10:18 AM

In addition, femtech companies offer products for general health conditions, such as osteoporosis, that affect women disproportionately or differently than males.

Posted by: dinosaur game | Apr 25, 2023 12:09:50 AM

Here’s a very serious problem women’s health problem.

Fortunately for us lawyers, it can be better solved with litigation than technology.

A recent major study found that Black babies are nearly three times more likely to die if cared for by White specialists than Black ones – not because Black babies are less healthy, or more prone to various diseases, receive different parental care, or for similar reasons. It’s apparently the care provided by two different types of doctors.

Fortunately, an unusual if not unique statute makes it possible to attack this problem in the District of Columbia. See, e.g.:

Are White Doctors Killing Black Babies? – Lawsuit Possible in DC; Black Newborns 3 Times More Likely to Die Under White Doctors‘ Care – Study https://bit.ly/3DZjIGw

Posted by: John Banzhaf | Nov 3, 2022 3:32:31 PM

Houston Law Review has published Solving the Procedural Puzzles of the Texas Heartbeat Act and Its Imitators: New York TImes v. Sullivan as Historical Analogue, Rocky and my third piece in this series. This argues that the events leading to NYT v. Sullivan–a campaign of private civil litigation designed to chill conduct through costly litigation and liability–offer an historical analogue for SB8 and the imitators popping up in other states and on other issues. We do not defend or support what Sullivan and other Southern officials did in the early 1960s. The point is that it did not require offensive litigation or special procedures in federal court; the Times could and did defend in state court and pursue (successfully) their constitutional rights defensively. And those ordinary processes are available for current controversies.

Here is the abstract:

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive private enforcement mechanism to other disfavored-but-protected activities, seeking to impose private civil liability.

This Article—the third in a series unpacking the procedural puzzles of S.B. 8 and its imitators—considers the historical analogue of New York Times v. Sullivan, the Court’s foundational modern free speech case. New York Times arose out of a southern campaign to use state defamation law and private civil litigation to silence media outlets from reporting on Jim Crow and the Civil Rights Movement. That southern litigation campaign and S.B. 8 supporters shared a goal—deter locally unpopular but constitutionally protected activity through threat of hundreds of lawsuits and devastating civil liability and monetary exposure. But the defendants in New York Times could not and did not go to federal court ahead of any private lawsuit or seek to functionally enjoin the state’s trial courts. The Times litigated the First Amendment defensively, with successful review to the Supreme Court of the United States. Contrary to the views and concerns of critics of S.B. 8 and new copycats, rights holders can follow the same process to challenge the substantive validity of privately enforced laws. The history of New York Times shows the way.

Posted by Howard Wasserman on November 2, 2022 at 09:31 AM

I have a short piece, related to my new book The Equality Machine, and current research – a law review article called the The Law of AI for Good, this week in Time called The Problem With Too Much Data Privacy.

Here is a taste:

Privacy has long dominated our social and legal debates about technology. The Federal Trade Commission and other central regulators aim to strengthen protections against the collection of personal data. Data minimization is the default set in Europe by the GDPR and a new bill before U.S. Congress, The American Data Privacy and Protection Act, similarly seeks to further privacy’s primacy.

Privacy is important when it protects people against harmful surveillance and public disclosure of personal information. But privacy is just one of our democratic society’s many values, and prohibiting safe and equitable data collection can conflict with other equally valuable social goals. While we have always faced difficult choices between competing values—safety, health, access, freedom of expression and equality—advances in technology make it increasingly possible for data to be anonymized and secured to balance individual interests with the public good. Privileging privacy, instead of openly acknowledging the need to balance privacy with fuller and representative data collection, obscures the many ways in which data is a public good. Too much privacy—just like too little privacy—can undermine the ways we can use information for progressive change.

Posted by Orly Lobel on November 1, 2022 at 04:27 PM

The following post is by Suzanna Sherry (emerita at Vanderbilt and friend of the blog).

On Monday, the U.S. Supreme Court heard oral arguments about the legality of affirmative action. Some time before the end of June, the Court may well hold that it is illegal – either under the Constitution, a federal statute, or both – for colleges and universities to use race as a factor in deciding which students to admit. Conservatives hope, and liberals fear, that this will mean the end of affirmative action in educational institutions.

It won’t. Elite colleges and universities will quickly adapt, changing their admissions policies to achieve their goal of a racially diverse student body while purporting to be race-neutral. It will take only three easy steps.

Step one: Make the submission of SAT or ACT scores optional (some universities have already done so). This will break the applicants for admission into two pools. One, the test-submission pool, will consist of students who earned high scores on the tests. It will be almost entirely white and Asian-American. The other, the no-submission pool, will consist of students who either did poorly on the tests, or did not take a test because they feared they would do poorly. This second pool will contain applicants of all races and ethnicities.

Step two: Establish criteria for admission from each pool. For the test-submission pool, the criteria will presumably be the traditional ones: test scores, high school grades, recommendation letters, and interviews. For the no-submission pool, the criteria will sound good, but they will be vague and infinitely malleable: drive to succeed, the ability to overcome obstacles, a commitment to making the world a better place, and the like. And, surprise, surprise, it will turn out that Black and Hispanic applicants meet these criteria more frequently that white applicants do, at least according to the admissions officers’ evaluations.

So the students admitted from the submission-pool will be almost all white or Asian-American. The largest percentage of students admitted from the no-submission pool will be Blacks and Hispanics, who are currently being admitted through affirmative action program. Admittees from this pool might also include applicants with other desirable attributes, such as offspring of alumni or big donors or celebrities, royalty from around the world, and the occasional prize-winning oboist desperately needed by the school’s orchestra.

Step three: Determine the distribution of students who will be admitted from each pool. This can be a fixed percentage (60% from one pool and 40% from the other), or a minimum or maximum (at least 40% from one pool, which is the same as no more than 60% from the other pool). The distribution can be stated as a goal – which allows some deviation – or as a mandatory result of the admissions process.

It might take a year or two to get the criteria and the distribution just right. But in short order, these elite colleges and universities will have the same racial distribution that they do now. And because there will be two separate pools and no objective criteria by which to compare applicants in the no-submission pool, there will be no way to prove that race played any role deciding who gets admitted.

Posted by Howard Wasserman on November 1, 2022 at 09:31 AM