Bargaining in the Shadow of (Confusing) Law: The Case of Surrogacy Contracts

Rachel Rebouché, Contracting Pregnancy, 105 Iowa L. Rev. 1591 (2020).

The literature on surrogacy regulation has recently taken a turn towards a more pragmatic understanding of the field. Scholars have attempted to describe surrogacy regulation as it already exists and analyze the different interests involved, under conditions of legal fragmentation and uncertainty.1 Rachel Rebouché’s Contracting Pregnancy is an important contribution in this vein.

The article contributes several advances to our knowledge of surrogacy contracts in action. First, Rebouché analyzes statutory developments alongside standard terms included in surrogacy contracts. Doing so allows her to notice a tension between the law on the books and the law in action. The newest statutes attempt to balance the interests of intended parents and surrogates, recognizing parentage for the former, while safeguarding the surrogate’s autonomy interests, by emphasizing that decisions about termination ultimately reside with the surrogate. Lawyers involved in the drafting process, however, regularly include language “that contradicts state efforts to level the playing field for parties.” (P. 1596.) Rebouché finds this recurrent tension between state statutes and contractual language in the areas of pre-pregnancy genetic testing, prenatal screening and testing, lifestyle decisions during pregnancy, and abortion. In other words, the contracts that lawyers draft regularly try to vest intended parents with decision-making power over these areas, against the backdrop of a statutory (and constitutional) framework that vests that authority on the surrogate. Continue reading "Bargaining in the Shadow of (Confusing) Law: The Case of Surrogacy Contracts"

A Lively Conversation on Trans Legal Change

Samuel Singer & Ido Katri, Guest Editors, Special Issue: On the Margins of Trans Legal Change, 35 Can. J. of L. and Soc’y 147 (2020).

If you’re having one of those days where you feel like change may never come; here’s a fabulous volume for you. This special issue of the Canadian Journal of Law and Society centres the lives of trans people, grapples with daily experiences of exclusion and discrimination, and claims new shared ground for legal change in ways that requires us to de-centre law. It is exciting work.

The collection of articles addresses all manner of cites of legal contest—from employment law to human rights, to education law, to health law. As a collection it is neither rigidly theorized nor staunchly pragmatic. Instead, the articles, many of them authored collaboratively, acknowledge theoretical foundations and legacies, and seek to build from those foundations while still keeping the real lives of trans people in sharp view. And while the collection is ground-breaking as a venue for a collective conversation about trans legal change, it makes no claims to be definitive or comprehensive. Each article both stands independently as a contribution rooted in a specific set of experiences and legal frames and weaves with the other contributions to form a coherent, but of course incomplete, whole. The collection is a conversational moment: it results from an effort to bring together a growing number of Canadian trans scholars, activists, and allies in dialogue and to let things unfold from there. Continue reading "A Lively Conversation on Trans Legal Change"

Treating Cognitive Harms in Contract Seriously

Jeffrey L. Harrison, Duress and Undue Influence in Contract Law as Cognitive Trespass, 98 Neb. L. Rev. 970 (2020).

In this article, Jeffrey Harrison addresses the very real problem of contract law’s capacity to control wrongful conduct that deprives individuals of a meaningful ability to withhold consent. Specifically, for certain types of duress and undue influence, the remedies available under contract incentivize wrongful conduct against an apparently weaker party. Professor Harrison provides an insightful analysis of the situations in which contract promotes such absurd results and makes a convincing argument in favor of treating certain types of duress and undue influence as an independent tort in order to access the deterrence value of punitive damages.

Duress and undue influence are problematic for contract law in the sense that both defenses attempt to address the fundamental basis of contract in voluntary consent of both parties to the proposed bargain. Where there is no consent, there can be no contract. Continue reading "Treating Cognitive Harms in Contract Seriously"

Race, Generation and Custodial Citizenship: The Great Decoupling of Crime and Criminal Justice

Vesla M. Weaver, Andrew Papachristos & Michael Zanger-Tishler, The Great Decoupling: The Disconnection Between Criminal Offending and Experience of Arrest Across Two Cohorts, 5 The Russell Sage Found. J. of the Soc. Sci. 89 (2019).

In a 2016 dissent, Justice Sonya Sotomayor described Americans becoming mere “subjects of a carceral state” as a result of repeated Supreme Court decisions broadening the power of the police to stop and to arrest people under the Fourth Amendment. In a powerful new empirical article, The Great Decoupling, Social scientist Vesla Weaver and coauthors have developed stunning empirical evidence of what it means exactly to be what they similarly call a “custodial citizen,” and who is likely to become one. In earlier work with Amy Lerman, Vesla Weaver defined the difference between being defined as a criminal offender by the state’s response to your “behavior” and simply being “‘defined by [your] relationship to the state;’ a relationship predicated more on who one is than what one has done.” In most criminal law and criminology work we presume that the institutions of justice are concerned with “criminal offenders” (a term I normally avoid myself) but Weaver and colleagues strongly suggest it is as “custodial citizens” that the police, and perhaps other justice agencies, look at young people, and especially young Black people.

The authors leverage a unique data source (the National Longitudinal Survey of Youth) that captures self-reported criminal behavior as well as criminal justice contact among advanced juveniles (generally considered by criminologists the most crime prone and most likely to be targeted by police) to examine a question shockingly understudied in both criminology and criminal law: what is the relationship between criminal behavior and criminal justice contact. With a few noteworthy exceptions (Elizabeth Hinton’s recent book being one), many, even critics of mass incarceration (like this one), have tended to assume that what varies in periods of punitive expansion (like the forty year long one that may have ended in the past decade) is the state’s response to criminal conduct (or at least suspect criminal conduct). Regardless of whether one supports aggressive enforcement and punishment policies, almost everyone assumes that there is at least a close relationship between crime and contact. Indeed, in a decently functioning justice system as the authors put it “contact should follow conduct” regardless of how aggressively so. But it turns out it ain’t so, and especially if you are Black. (Their data did not yield meaningful comparison of White-Latinx participants in the surveys.) Even more interestingly the authors leverage two waves of this study that capture similarly aged people in years that reflect the beginning (1979) and the peak of the great punitive turn of the late 20th century. Continue reading "Race, Generation and Custodial Citizenship: The Great Decoupling of Crime and Criminal Justice"

“I have seen the future…” “And it works?”

David E. Pozen, Eric L. Talley & Julian Nyarko, A Computational Analysis of Constitutional Polarization, 105 Cornell L. Rev. 1 (2019).

The moment is at hand. No longer self-consciously experimental, computational analysis now comes to constitutional law in an ambitious effort pursued by David Pozen, prominent in the field at Columbia; his Van Halen-like colleague Eric Talley, known especially perhaps for his law and economics theorizing and his corporate and contract law investigations – and Julian Nyarko, newly arrived at Stanford as a practicing computationalist interested first of all in contract law. Their project takes up the question of polarization and its pertinence constitutionally, an issue that has become more prominent in the past few years.

The effort at one level is straightforward. It turns out that all remarks made by members of Congress, on both the House and Senate side, dating from 1873 to 2016, now exist in a collected, computer analyzable form. What might we learn if we read all these speeches? We can’t, of course – too much to know, too much information to acquire and think through, even if we read quickly rather than carefully. Machines read too, assimilating many more documents much faster. But they read their way – sorting words, counting uses, noticing conjoint and disjoint patternings, and the like. We need to know what we know, therefore, when we read machine-reading results. Pozen, Talley, and Nyarko show us how they assembled their mechanism and the decisions they had to make in order to ready their computer for work. These decisions become a sort of pedigree. Continue reading "“I have seen the future…” “And it works?”"

Defending “Universal Vacatur” — Nationwide Injunctions for Administrative Law Nuts

Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121 (2020).

The nationwide injunction has seized the imagination of courts and law professors in recent years. Not surprisingly, JOTWELL’s pages screens have given it extensive attention. Recent jots have described important work by Samuel Bray (twice), Amanda Frost (also twice), Russell Weaver, and Alan Trammell that attacks, defends, or theorizes nationwide (or “universal”) injunctions. Jack Beermann, in praising Bray and Frost, did have one complaint: “As an administrative law nut, I wish they both grappled more with the meaning of the APA’s instruction that reviewing courts should ‘hold unlawful and set aside’ unlawful agency action.” Mila Sohoni has now filled that void. Sohoni convincingly shows that there just can be no question that in the Administrative Procedure Act Congress authorized—indeed, indicated a preference for and established a presumption in favor of—nationwide relief when a court finds a regulation defective. When APA § 706(2) authorizes a reviewing court to “set aside” an agency rule, it means exactly that.

In 2018, Attorney General Jeff Sessions distributed Litigation Guidelines instructing civil litigators in the Department of Justice (DOJ) to oppose universal injunctions always and everywhere. The memo’s seven sections gave seven reasons why such relief was beyond the pale, including the assertion that it was unconstitutional. Section VII was headed: “In APA Cases: Universal Vacatur is not Contemplated by the APA.” Sohoni’s article resoundingly contradicts this assertion. Continue reading "Defending “Universal Vacatur” — Nationwide Injunctions for Administrative Law Nuts"

Machine Monitoring of Workers: A Brave New Workplace

Richard A. Bales and Katherine V.W. Stone, The Invisible Web at Work: Artificial Intelligence and Electronic Surveillance in the Workplace, 41 Berkeley J. Emp. & Lab. L. 1 (2020).

In their article, The Invisible Web at Work: Artificial Intelligence and Electronic Surveillance in the Workplace, Professors Bales and Stone argue that illegitimate employer uses of artificial intelligence (“AI”) in the workplace may largely outweigh legitimate uses, creating a potentially problematic, but not necessarily unlawful, encroachment on human workers’ rights. The article is divided into three main sections. First, it comprehensively describes the numerous ways in which employers are utilizing AI to transform traditional managerial prerogatives. Second, it analyzes possible workers’ rights violations, concluding that existing law is unlikely fully to protect those rights. Third, it presents areas for future reform. The article concludes with an ominous observation: “companies are collecting unfathomable quantities of data on workers that will significantly tilt the balance of workplace power in favor of employers at workers’ expense.” (P. 62.)

Section I comprehensively surveys employers’ ubiquitous use of AI to transform traditional managerial prerogatives. The authors note that employers “utilize a dizzying array of electronic mechanisms—including trackers, listening devices, surveillance cameras, metabolism monitors, and wearable technology—to watch their workers, measure their performance, avoid disruption, and identify shirking, theft, or waste.” (P. 4.) While these mechanisms may serve legitimate employer goals, they often allow managers to “observe each worker’s every movement, both inside and outside the workplace, and during and after working hours.” (Id.) Moreover, AI algorithms can transform collected data “into a permanent electronic resume that companies are using to track and assess current workers,” and which “could potentially be shared among companies as workers move around the boundaryless workplace from job to job.” (Id.) This “invisible electronic web threatens to invade worker privacy, deter unionization, enable subtle forms of employer blackballing, exacerbate employment discrimination, render unions ineffective, and obliterate the protections of the labor laws.” (Id.) Continue reading "Machine Monitoring of Workers: A Brave New Workplace"

The Multiple Faces of Textualism

Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265 (2020).

In her wonderfully-titled article, Which Textualism?, Tara Leigh Grove uses the recently decided Bostock v. Clayton County case to highlight a truth about statutory interpretation theory that scholars have largely ignored: Textualism is not a monolithic interpretive approach, but one that contains multiple competing strands. This observation is long overdue, and Bostock is an excellent vehicle for exploring its implications, given that the three separate opinions issued by the Court all claimed to employ a textualist interpretive approach—while reaching different outcomes.

Which Textualism? begins by differentiating between what Grove calls “formalistic textualism,” on the one hand, and “flexible textualism,” on the other—and uses this frame to discuss “some real, but underappreciated, disputes among textualists” regarding the universe of interpretive tools and resources courts should avail themselves of when interpreting statutes. Specifically, Grove argues that “formalistic textualism” authorizes interpreters to apply only a “closed set” of normative canons, whereas “flexible textualism” allows interpreters to consult a much wider range of canons, such as the absurdity doctrine, that invite considerable judicial discretion. Continue reading "The Multiple Faces of Textualism"

Beware of Strangers Bearing Gifts

Joshua Knobe, Scott J. Shapiro, Proximate Cause Explained: An Essay in Experimental Jurisprudence, 88 U. Chi. L. Rev __ (forthcoming, 2021) available at SSRN.

A familiar rhetorical trope in modern advocacy is: “Imagine if visitors from outer space were observing x; how would they describe it?” The payoff of this exercise is to get the audience to see that the view proposed by the speaker, while superficially unfamiliar, is actually more perceptive than the conventional understanding of the practice at issue. The subtext is that only with the benefit of insights gleaned from a great distance (or an unusual perspective) can those immersed in a practice truly understand it.

I could not help but think of this trope while reading Knobe and Shapiro’s fascinating—if at times frustrating—paper on proximate cause. Of course, they are not space aliens; they are both philosophers and one (Shapiro) is a law professor as well. But neither specializes in tort law, and by their own admission they are leveraging their distance from the conventional discourse of torts scholars and judges to arrive at insights that have otherwise eluded those of us immersed in the practice. Continue reading "Beware of Strangers Bearing Gifts"

No Machines in the Garden

Rebecca Crootof & BJ Ard, Structuring TechLaw, __ Harv. J.L. & Tech. __, (forthcoming, 2020), available at SSRN.

A decade ago, I mused about the implications and limits of what was then called “cyberlaw.” By that time, scholars had spent roughly 15 years experiencing the internet and speculating that a new jurisprudential era had dawned in its wake. The dialogue between the speculators and their critics was famously encapsulated in a pair of journal articles. Lawrence Lessig celebrated the transformative potential of what we used to call “cyberspace” for law. Judge Frank Easterbrook insisted on the continuing utility of existing law in solving cyber-problems. The latter’s pejorative characterization of cyberlaw as “law of the horse” has endured as a metonym for the idea that law ought not to be tailored too specifically to social problems prompted by some exotic new device.

It turns out, as I mused, that Lessig and Easterbrook and others in their respective camps were arguing on the wrong ground. Cyberspace and cyberlaw pointed the way to an integrative jurisprudential project, in which novel technologies and their uses motivate a larger rethinking of the roles and purposes of law, rather than a jurisprudence of exception (Lessig) or a jurisprudence of tradition (Easterbrook). But it has taken some time for elements of an integrative project to emerge. Rebecca Crootof and BJ Ard, in Structuring Techlaw, are among those who are now building in that direction and away from scholars’ efforts to justify legal exceptionalism in response to various metaphorical horses – among them algorithmic decision making, data analytics, robotics, autonomous vehicles, 3D printing, recombinant DNA, genome editing, and synthetic biology. Their story is not, however, primarily one of power, ideology, markets, social norms, or technological affordances. Julie Cohen, among others, has taken that approach. Structuring Techlaw is resolutely and therefore usefully positivist. The law and legal methods still matter, as such. The law itself can be adapted, reformed, and perhaps transformed. Continue reading "No Machines in the Garden"

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