More Just, More Efficient Workplace Regulation

Hiba Hafiz, Interagency Coordination on Labor Regulation, 6 Admin. L. Rev. Accord 199 (2021).

Dozens of administrative agencies regulate American workplaces. Yet, those agencies often fail to coordinate to their full potential, leaving workers and employers without efficient and just labor market regulation. For example, consider the 2015 memorandum of understanding (MOU) between the EEOC and the DOJ’s Civil Rights Division regarding ADA and GINA charges against state and local governments, which clarifies the jurisdiction of the respective agencies, but fails to establish a mechanism for sharing information between them. On the other hand, the MOU between the DOL and the DOJ regarding criminal prosecutions of workplace safety laws from the same year establishes an information-sharing mechanism, but fails to coordinate interagency investigation and enforcement efforts. Neither commits to interagency consultations, compliance reviews, or research initiatives.

Should they? How are federal labor market regulators coordinating, and what might ideal coordination look like? Professor Hiba Hafiz’s new essay, Interagency Coordination on Labor Regulation, answers those questions with the support of untold legal histories, administrative law doctrine, and a remarkable empirical analysis. She assesses how these regulators coordinate in haphazard, ineffective ways—like long-time business partners slowly hammering out, over the span of decades, how to best work together when they could have sat down and established the framework for an efficient working relationship years earlier. Having explicated the problem, she concludes by identifying some best practices and offering a normative proposal for agencies to benchmark the effectiveness of their coordinating efforts. In my estimation, Hafiz’s essay is that rare piece that not only identifies a problem that has not been given proper attention, but also proposes a salve that would make regulation more just and more efficient at the same time. Continue reading "More Just, More Efficient Workplace Regulation"

New Developments in Fifteenth-Century Ottoman Trust Law and the Fate of the Hagia Sophia

The Hagia Sophia Case, Recent Case: Daniștay, Onuncu Daire [Council of State, Tenth Chamber] Matter No. 2016/16015, Decision No. 2020/2595, July 2, 2020, 134 Harv. L. Rev. 1278 (2021).

English legal historian Frederic William Maitland declared in the late 19th century, “[i]f we were asked what is the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence I cannot think [of] any better answer . . . than . . . the development from century to century of the trust idea.”1 Maitland, indeed, had good reason to applaud the innovation of trust law. But his claim of English exceptionalism may have been a bit immodest.

As beautifully recounted in an unattributed student case note,2 English legal tradition is not alone in recognizing beneficial ownership, the concept that underlies the enduring ingenuity of trust law. The Hagia Sophia Case: Turkey’s Highest Administrative Court Annuls Ataturk’s 1934 Decision Converting the Hagia Sophia into Museum, reveals that the validity of a fifteenth-century Islamic charitable trust emerged in 2020 as a pivotal question on appeal to Turkey’s highest administrative court. In that case, the petitioner sought to invalidate the conversion of one of Istanbul’s famous landmarks, the Hagia Sophia, from an active mosque into a public museum. Continue reading "New Developments in Fifteenth-Century Ottoman Trust Law and the Fate of the Hagia Sophia"

Data-Driven Procedural Inequality

Danya Shocair Reda, Producing Procedural Inequality Through the Empirical Turn, 94 U. Colo. L. Rev. __ (forthcoming, 2023), available at SSRN.

Data is all the fashion, not just in the legal academy and other academic disciplines, but in our daily lives. We have been glued to COVID-19 statistics to make decisions about whether to wear masks, send our kids to school, or take that rescheduled trip. While these graphs and statistics have been helpful, they have not been without controversy. The pandemic has brought into full relief how data can be manipulated, misunderstood, and even misleading.

Danya Reda’s Producing Procedural Inequality Through the Empirical Turn questions and critiques how data is gathered and used in another important context—the federal civil rulemaking process. Reda’s prior work has contributed to how we think about the civil justice system and the rules that govern it. She has shown that elite lawyers and judges constructed and marshalled a cost-and-delay narrative that affects the civil rulemaking process. She has interrogated the effect of casting the rulemaking process as political. In this article, Reda takes her critique a step further by arguing that the rulemakers’ attempts at neutrality—and their attempts to keep the process “neutral” using data—distort the rulemaking process and deepen systemic inequality. Continue reading "Data-Driven Procedural Inequality"

Confronting Surveillance

Amanda Levendowski, Resisting Face Surveillance with Copyright Law, 100 N. C. L. Rev. __ (forthcoming, 2022), available at SSRN.

One prevailing feature of technological development is that it is not sui generis. Rather, new technologies often mirror or reflect societal anxieties and prejudices. This is true for surveillance technologies, including those used for facial recognition. Although the practice of facial recognition might be positioned as a type of convincing evidence useful for identifying an individual, the fact remains that racial and gender biases can limit its efficacy.. Scholars such as as Timnit Gebru and Joy Buolawmini have shown through empirical evidence that facial recognition systems, which are often trained on limited data, display stunningly biased inaccuracy. The two AI researchers reviewed the performance of facial analysis algorithms across four “intersectional subgroups” of males or females featuring lighter or darker skin. They made the startling discoveries that the algorithms performed better when determining the gender of men as opposed to women, and that, darker faces were most likely to be misidentified.

In her path-breaking article, Resisting Face Surveillance with Copyright Law, Professor Amanda Levendowski identifies these harms and others, and advocates for the proactive use of copyright infringement suits to curb the use of photographs as part of automated facial surveillance systems. First, Levendowski illustrates why the greater misidentification of darker faces by algorithmic systems is a problem of great concern. Levendowski shares the story of Robert Julian Borchak Williams who was placed under arrest in front of his home and in view of his family. A surveillance photograph had been used to algorithmically identify him.. However, once the photograph was compared to the actual person of Mr. Williams, it was obvious that he had been misidentified. The only explanation Mr. Williams got was, “The computer must have gotten it wrong.” The sad reality is that Williams’ case is not unique, there are many more stories of Black men being wrongfully arrested based on misidentification by AI systems. Given the glacial creep of federal legislation to regulate face surveillance, Levendowski advocates for turning to the copyright tools she believes we already have. Continue reading "Confronting Surveillance"

Autonomy as Corporeal, Not Just Cognitive

Megan S. Wright, Resuscitating Consent, 63 Bos. Coll. L. Rev. 887 (2022).

Contemporary discussions of the law and ethics of informed consent to medical treatment tend to focus on the process of information communication, including the scope of the disclosures physicians are required to make, and the ability of patients to truly understand those disclosures and integrate them into their medical decision-making. Without dismissing the importance of communication and understanding in securing consent to treatment, Prof. Megan Wright’s article, Resuscitating Consent, directs the reader’s attention to a fundamental concept that seems to have been overlooked as the law and practice of informed consent have developed. Namely, that the principle of patient autonomy upon which informed consent doctrine is based has a corporeal – not just cognitive – component.

Prof. Wright wisely reminds readers that respect for bodily integrity was a foundational principle in the development of autonomy-based legal protections for patients. However, evidence suggests that health care providers in acute care hospitals are willing to violate this principle by imposing medical treatment against contemporaneous patient objections. Prof. Wright argues that all patients – not just those deemed to have decision-making capacity – have an absolute right to refuse treatment as a matter of bodily autonomy. “[P]atients,” according to Prof. Wright, “continue to have bodily integrity interests that should be respected even if they acquire decisional impairments and are deemed incapable of autonomy understood as capacity for rationality.” Contemporary U.S. law, however, fails to adequately protect these interests, and this article offers several compelling recommendations for addressing this issue. Continue reading "Autonomy as Corporeal, Not Just Cognitive"

The International Tax System is There to Achieve Justice

Allison Christians & Laurens van Apeldoorn, Tax Cooperation in an Unjust World (2021).

I love everything about this book book, Tax Cooperation in an Unjust World, by Allison Christians and Laurens van Apeldoorn. It’s short, it’s readable, there’s no mystery about the point (and the authors don’t belabour it), and it’s important.

The main claim: our international tax system has justice at its heart. And when we fail to attend to its justice consequences, we enable states with great wealth to “facilitate[] and feed[] off continued human suffering.” (P. 1.) Continue reading "The International Tax System is There to Achieve Justice"

The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions

In his recently published book, Regulatory Takings After Knick, Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes, David Callies supplies an instructive overview of the Supreme Court’s framework for analyzing regulatory takings challenges. In so doing, he turns his attention to one of the most significant land use decisions in decades, Knick v. Township of Scott, Pennsylvania.

Nearly 100 years after its Pennsylvania Coal v. Mahon decision, the Court in Knick overruled a portion of the ripeness test for takings claims it established in Williamson Co. v. Hamilton Bank in 1985. The Knick decision eliminated the ripeness hurdle, pursuant to which, a landowner had to litigate an inverse condemnation claim in state court and have the court deny just compensation before suing in federal court. Knick left in place the finality requirement from Williamson Co., which requires a litigant to obtain a final decision from the relevant government entity before bringing a takings claim. Continue reading "The Impact of Knick on Regulatory Takings and Those Pesky Lucas Exceptions"

Zoom Arbitration

Amy J. Schmitz, Arbitration in the Age of COVID: Examining Arbitration’s Move Online, 22 Cardozo J. Conflict Resol. 245 (2021).

It’s already cliché, but worth saying anyway: The pandemic has shaken the entire legal industry. Much has been written about how the “new normal” has upended court systems, client advocacy, lawyer training, and so much more. From senior partners managing their firms virtually, to nervous 1Ls taking their introductory courses over Zoom, no corner of our tradition-bound profession has been spared from disruption.

But one slice of the industry was better prepared than most. In her comprehensive article in the Cardozo Journal of Conflict Resolution, Arbitration in the Age of COVID, Professor Amy J. Schmitz describes how private dispute resolution has met this moment. She also identifies important unresolved issues that scholars and practitioners must address as the legal world adapts to virtual adjudication. Continue reading "Zoom Arbitration"

Weaponizing The Law and the Cost of Lawyers in Intimate Partner Violence Actions

Across the world, millions of women experiencing violence and coercive control by an intimate partner turn to the law for help. Lawyers1 and justice systems ill-equipped to deal with this complex issue are often accused of missing, and even compounding, harms. Heather Douglas’s Women, Intimate Partner Violence, and the Law documents her study of this phenomenon. Her book is based on the results of a four-year study in which she conducted up to three interviews (n =178 interviews in total) with 65 female survivors of intimate partner violence (IPV) in Australia. Douglas sought survivors of differing backgrounds. All of the women Douglas interviewed had experienced a range of abuse from their partners, with 85% experiencing physical violence, and all some form of emotional or psychological abuse. For most of the women, the abuse continued after they left their partners, often during the study and in their interactions within the legal system. Financial abuse through actions that compound the cost of accessing the law emerges as a key theme.

Applying a feminist methodology, the book tells extended stories of women experiencing IPV. Through the perspectives of these women, the book provides a comprehensive overview of the system they encounter (child protection services, policing, courts, lawyers, and judges). The system-wide insights of this very well researched book cannot be canvassed here. Rather, this review considers the IPV survivors’ perspectives on Australian lawyers’ work. Douglas’s longitudinal approach provides an opportunity to hear how the women “construct their narratives about their interaction with the legal system and its actors and how this changes over time.” (P. 13.) What we read are “journeys [that] were harrowing, long, and expensive” (P. 2) and stories that illustrate the “messiness of the law.” (P. 6.) For example, Alex (not her real name) carefully recorded that she was required to attend civil and criminal courts on 31 occasions over a 6-month period. (P. 65.) The trauma experienced by Alex and many other women is exacerbated by the actions of their partner in filing unmeritorious applications, appeals or causing excessive delays through adjournments. The interviewees saw these as tactics motivated by a wish to control and abuse–“The courtroom is his playground,” Sandra said. (P. 166.) Douglas describes this as the “weaponization” of the legal system. (P. 182.) Continue reading "Weaponizing The Law and the Cost of Lawyers in Intimate Partner Violence Actions"

Interjurisdictional Abortion Wars in the Post-Roe Era

David S. Cohen, Greer Donley, and Rachel Rebouche, The New Abortion Battleground, 122 Col. L. Rev. __ (forthcoming 2022), available at SSRN.

The Supreme Court appears poised to overrule fifty years of precedent holding that pre-viability prohibitions on abortion are unconstitutional. In a leaked draft opinion of Dobbs v. Jackson Women’s Health Organization, Justice Alito proclaims that Roe v. Wade and Planned Parenthood v. Casey must be overruled and abortion left to the states to regulate. During oral argument in Dobbs, Justice Kavanaugh suggested that overturning Roe would return the Court to a position of “neutrality” on abortion. Justice Kavanaugh’s assertion falls in line with claims by anti-abortion jurists that reversing Roe would simplify abortion law by returning the issue to the states and getting the federal courts out of the hot-button issue of abortion.

In their draft article The New Abortion Battleground, forthcoming in the Columbia Law Review, David Cohen, Greer Donley, and Rachel Rebouche thoroughly disprove the notion that abortion law will become simpler if and when the Court overturns Roe. Given increasingly pitched polarization between red and blue states, the authors show how the abortion wars will continue in the federal courts—but will shift from constitutional battles over fundamental rights to liberty and equality to fights over principles of federalism and interstate comity raised by interjurisdictional conflicts between states and between the federal government and the states. The article is a must read for scholars and legal advocates preparing for the aftermath of the Supreme Court’s decision in Dobbs.
Continue reading "Interjurisdictional Abortion Wars in the Post-Roe Era"

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