Circumventing Procedure in Eviction Court

Nicole Summers, Civil Probation (Aug. 3, 2021), available at SSRN.

Although 98% of cases in the United States are filed in state courts, it has become common to lament the lack of state-court-focused scholarship. Statements such as “staggeringly little legal scholarship focuses on state courts and judges” and “[w]e know astonishingly little about [state courts]” abound. A recent jot highlighted an article calling for more attention on “the actual,” not just “the ideal,” in procedural due process.

Luckily these tides are changing. Nicole Summers is an important member of an emerging vanguard here to help.

Summers studies eviction courts from the ground up. In her latest article, Civil Probation, she not only provides invaluable empirical data about the real workings of eviction courts, but she contextualizes her findings in theories that enhance our understanding of state civil courts generally and eviction courts in particular. (See also her earlier study of NYC housing court.) Continue reading "Circumventing Procedure in Eviction Court"

Decolonizing Criminology and Its Relevance to Understand the Birth of the Prison in Latin America.

Libardo José Ariza and Fernando León Tamayo Arboleda, El cuerpo de los condenados. Cárcel y violencia en América Latina (The Body of the Convicted. Prisons and Violence in Latin America), 73 Revista de Estudios Sociales 83 (2020).

In criminology we are used to reading brief and ‘filtered versions’ of the history of the prison. Despite recent works that provide useful summaries (Rubin, 2019),1 our main knowledge about the emergence of the prison still comes foremost from the liberal or ‘Whig’ histories or from revisionist accounts (represented by Rothman, Foucault, and in a distant third place on the podium Spierenburg, Rusche and Kirkheimer, Ignatieff, and Melossi and Pavarini). The liberal version asserts that the emergence of the prison was the product of the ‘Enlightenment’ in the eighteenth century, and that this new form of punishment was a progressive triumph of humanitarian ideals which opposed corporal punishments and public executions. The revisionist version questions this benevolent explanation and, in the most influential Foucauldian version, declares that prison is also a cruel but ‘hidden’ punishment addressed to the soul (instead of the body), with the goal of disciplining and creating ‘docile bodies’, and destined not to punish less but better. Both the liberal and the revisionist versions have also been subject to criticism. Ariza and Tamayo’s paper El cuerpo de los condenados. Cárcel y Violencia en America Latina (The Body of the Convicted. Prisons and Violence in Latin America) provides a good example why both accounts need to be reconsidered.

As so often happens in criminology, and in general in the social sciences, our accounts derive mainly from the countries that produce them, the US, and the UK. In the social sciences, this generally means that even in Spain we explain the history of prison comparing ‘the system of Auburn and Philadelphia’. This is logical, to a certain extent, because the main scholarship has been developed there. However, this sometimes misleads us because the chronology of the birth of the prison, its principal ideas and influences, and also finally the main actors might obviously be more diverse in different countries. In her fascinating paper Mary Gibson (2011) summarizes the birth of the prison in three other continents to explain that not all countries followed the sources or tempos of the birth of the penitentiary. There are countries where the emergence of the prison ‘was introduced by a colonial government (Vietnam, Africa), by indigenous rulers under imperialist pressure from Western powers (China, Japan), or by postcolonial leaders (Peru).’2 This literature produced from the margins allows us to capture new elements surrounding the origin of the prison institution, like racism, European imperialism, the brutal pre-modern conditions of the prison, and the substitution of less violent punishments existing in these societies before the prison, composing a more complete picture of the birth of the prison. Continue reading "Decolonizing Criminology and Its Relevance to Understand the Birth of the Prison in Latin America."

Reconstructing the Meaning of “Fair Value” in the Wake of Appraisal Arbitrage

Robert Miller, Stock Market Value and Deal Value in Appraisal Proceedings, 96 Notre Dame L. Rev. 1403 (2021), available at SSRN.

Delaware’s law of appraisal rights has been in an uproar since hedge fund arbitrageurs showed up in the Chancery Court fifteen or so years ago as appraisal petitioners. The shock led to minor changes in the statute and extensive changes in the caselaw. Responsive commentaries continue to appear with regularity. Professor Robert Miller takes a fresh look at the situation in Stock Market Value and Deal Value in Appraisal Proceedings. His paper is well worth a look.

I need to back up those fifteen years in order to frame the paper. Appraisal arbitrage really changed the game. All of a sudden a notoriously plaintiff-unfriendly legal remedy became a play space for Wall Street smart money looking for Alpha. The arbs worked the system by cooking up persuasive discounted cash flow (DCF) valuations that came in above the merger price. Shareholder advocates saw much to like in this development. The Delaware bar and judiciary, along with most of the rest of the establishment, saw things differently. The bar pushed through some minor revisions of the statute through the legislature, but those were not enough to stop the show. Continue reading "Reconstructing the Meaning of “Fair Value” in the Wake of Appraisal Arbitrage"

The Accuracy of Economic Analysis of Contract Interpretation

Omer Pelled & Ohad Somech, The Value of Accuracy in Contract Interpretation (Aug. 5, 2021), available at SSRN.

In the past twenty years or so, the new formalism, led mostly by legal economists, has been quite influential in contract theory. Focusing on commercial transactions between sophisticated firms, leading scholars have questioned the courts’ competence to accurately determine the parties’ intentions and called for a textualist approach to contract interpretation (see, e.g., Schwartz & Scott 2000; 2003).

Two common responses to the new formalism are to deny that economic efficiency is the only value underlying contract interpretation, even in commercial contracts, and to shift attention from negotiated, commercial transactions to standard-form and consumer contracts. In The Value of Accuracy in Contract Interpretation, Omer Pelled and Ohad Somech take a different route. They convincingly criticize one of Schwartz & Scott’s key arguments on the latters’ own terms, thereby casting doubt on the accuracy of mainstream economic analysis of contract interpretation even in bespoke commercial transactions between sophisticated parties. Continue reading "The Accuracy of Economic Analysis of Contract Interpretation"

Immigration Law’s “Shadow Dockets”

Shalini Bhargava Ray, Immigration Law’s Arbitrariness Problem, 121 Colum. L. Rev. 2049 (2021), available at SSRN.

The “law in books” is often not the same thing as the “law in action.” And in administrative law, the reason for that disjoint is often because some agency has decided to interpret, apply, or enforce the written law in a way that changes its on-the-ground meaning. In immigration law, the “law in books”—the Immigration and Nationality Act—takes a hard line on violators: it “specifies deportation as the sanction for nearly all transgressions of immigration law, no matter how minor, and regardless of the personal circumstances of the immigrant” (P. 3.) But when we look at how that law is applied, a different picture comes into view—“a system of shadow sanctions” (P. 4) that takes the place of deportation for vast numbers of noncitizens.

Shalini Bhargava Ray maps and critiques this “shadow”1 world of immigration law in an absorbing recent article, Immigration Law’s Arbitrariness Problem. In the article, Professor Ray sets out how the immigration bureaucracy stops, or indefinitely postpones, the issuance and execution of huge numbers of removal orders through the use of various administrative devices, including deferred action, administrative closure, and orders of supervision (P. 4.) She then explains the problematic feature of these discretionary tools as a rule-of-law matter: though these shadow sanctions mitigate the harshness of deportation, they are still doled out in an entirely opaque and often arbitrary way. Continue reading "Immigration Law’s “Shadow Dockets”"

What If I Told You That Employer Power Is a Legal Construct

Gali Racabi, Abolish the Employer Prerogative, Unleash Work Law, 43 Berkley J. Emp. & Lab. L. __ (forthcoming), available at SSRN.

What is an “employer,” and what can it do? And what role does law play in answering those questions? In this understated yet radical new piece—Abolish the Employer Prerogative, Unleash Work Law—Gali Racabi analyzes the law’s basic concepts for governing the workplace. Digging deep into the substratum of the law’s framework, he excavates the idea of the “employer prerogative”: namely, that the employer’s designated representatives have “the legal authority to make unilateral decisions in the workplace.” (P. 4.) Racabi’s simple proposal is to end this prerogative and consider alternative ways of allocating workplace power. His concept is both simple and staggering: a complete reorganization of the governance of firms within our economy.

Abolishing the Employer’s Prerogative is centered on a notion that is so much a part of our common cultural and economic understandings that it may even take a moment to realize what it is. Our economy delegates control over economic activity and decision-making to individual firms. Firms are a little hard to define, as they are economic (and not scientific) phenomena, but essentially they are the businesses that we work for, buy from, and contract with when engaging in our economic lives. We rely on firms to organize our behavior such that we can carry on extensive, long-lasting economic engagements within the rubric of a firm, rather than simply a market. The theory of the firm has proven a useful yet frustrating subfield of economics, as economic methodologies have not always proven suitable for the subtle, complex intricacies of interpersonal cooperation and competition that are contained within the firm. Continue reading "What If I Told You That Employer Power Is a Legal Construct"

Don’t Forget About the Fakes

Reid Kress Weisbord & David Horton, Inheritance Forgery, 69 Duke L. J. 855 (2020).

In the Estates textbook I use, most of the will execution cases involve testators whose clear intent is unrealized because they bungled strict execution requirements. The Uniform Probate Code and the Restatement (Third) of Property: Wills and Other Donative Transfers—mainstays in any Estates class—are drafted to minimize the possibility of formal requirements interfering with testator intent. Reis Kress Weisbord and David Horton’s Inheritance Forgery is a counter-narrative that demonstrates how forgery remains a real and substantial risk of which the law must take account.

Weisbord and Horton argue that “counterfeit donative instruments are a serious problem.” (P. 855.) They focus on three donative transfers: wills, deeds, and life insurance beneficiary designations. To explore the prevalence of forged wills, the authors conduct empirical research in Alameda County, California. In a dataset consisting of every matter on the probate court’s docket in a one-year period, ten percent of will contests involved a forgery claim. (P. 876.) To document the forgery risk with deeds, the authors examine reported opinions since 2000, grand jury reports, and journalistic accounts of cases that were never litigated. As Weisbord and Horton explain, “these cases and stories share a common thread: deed forgers tend to prey on property that is owned by a decedent’s estate.” (P. 883.) To demonstrate that courts “routinely preside[] over claims that a life insurance form was falsified or fabricated,” the authors study reported opinions since 2000. (P. 889.) This empirical works reveals the extent to which forgery threatens the integrity of donative transfers. Continue reading "Don’t Forget About the Fakes"

Seeing Negligence for What It Is

Nicolas Cornell, Looking and Seeing, in New Conversations in Philosophy, Law & Politics (Ruth Chang & Amia Srinivasan eds., forthcoming), available at SSRN.

1Ls are often taught that the tort of negligence differs from its counterpart in morality by not requiring blameworthy or culpable misconduct. As Holmes famously put it, whereas “the courts of Heaven” will make allowances for the defects of a “hasty and awkward” person, no such generosity is extended to defendants facing a negligence suit in a common law court. But is it correct to suppose that the moral wrong of negligence necessarily involves culpability or blame? In his marvelous essay Looking and Seeing, Professor Nico Cornell engages an array of recent work in the moral philosophy of negligence to argue, in effect, that Heaven’s courts are as demanding as their earthly counterparts.

Cornell begins with a discussion of Moore v. Dashiell, a run-of-the-mill, mid-twentieth century negligence suit. On a clear, dry day, Dashiell, driving his car, stopped to pick up two hitchhikers: Moore and a friend. Shortly thereafter, with Dashiell driving at a lawful speed on a straight and level road, the car struck a large mule. Moore was seriously injured and sued. At trial, Dashiell testified that, just before the collision, he was turning the dial on his car radio to find a station, but was looking at the road as he did. (There was no point in looking at the radio, he explained, because its markings did not accurately identify the wavelengths at which stations’ signals would be picked up.) He further testified that he saw two cars approaching from the other direction, but never saw the mule. Dashiell’s testimony notwithstanding, verdict was entered for Moore and the Maryland Supreme Court affirmed. Continue reading "Seeing Negligence for What It Is"

The Hotel California Effect: The Future of E.U. Data Protection Influence in the U.K.

Paul M. Schwartz, The Data Privacy Law of Brexit: Theories of Preference Change, 22(2) Theoretical Inquires in Law 111 (2021).

The tension between the forces of nationalism and globalism has reached its peak with the United Kingdom’s decision to break with the European Union. This dramatic move continues to impact countless economic sectors and, more importantly, the lives of many citizens. Yet all is calm on the data protection front. The U.K. has decided to continue applying the E.U.’s strict GDPR. In this timely and intriguing article, Paul Schwartz strives to explain why this happened, as well predict what’s next for data protection and the British Isles.

GDPR is a four-letter word. Its strict rules and heavy fines have changed the world of data protection forever. Ninety-nine articles, one hundred and seventy-three recitals, thousands of pages of commentary, and the many millions of dollars spent preparing for it only tell us part of the story. Now that the U.K. can escape the grasp of this vast and overarching regulatory framework, why hasn’t it “checked out”? Rather, just a few days prior to Brexit, the U.K. adopted a local law which is almost identical to the GDPR. This outcome is especially surprising to me personally, as I have argued that the GDPR substantially encumbers innovation in the age of big data (although it is quite possible I was wrong). Continue reading "The Hotel California Effect: The Future of E.U. Data Protection Influence in the U.K."

The Dream of Property Professors

Michael Heller & James Salzman, Mine! How the Hidden Rules of Ownership Control Our Lives (2021).

Michael Heller and James Salzman’s new book, Mine! How the Hidden Rules of Ownership Control Our Lives, is a dream come true for property professors.

I suspect that many of us have moments when we think to ourselves, “wow, this stuff is really interesting,” imagining that property law could somehow be of general interest. Too often that dream is killed when the eyes of non-lawyers, including family members, start to glaze over when they hear words like rule against perpetuities or trademark. Heller and Salzman have succeeded in making the stories property professors tell the stuff of a bestseller. They retell many of the standard classroom or analytical stories in a way that is both interesting to the general public and somehow worthy of broad discussion. Continue reading "The Dream of Property Professors"

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