Monthly Archives: July 2018
Kenneth S. Abraham and Robert L. Rabin, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era
, 105 Va. L. Rev.
__ (forthcoming 2019), available at SLS
Now that self-driving vehicles roam the roads and have already caused injury and death, many talented torts scholars are reviewing the role of tort law as a regulator of this new technology and as an insurer of its victims. In their recent article, Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era, the formidable duo of Ken Abraham and Robert Rabin join the inquiry. Abraham and Rabin write, “The new era of automated vehicles will eventually require a new legal regime that properly fits the radical new world of auto accidents.”
Having laid down this challenge—to fit a new legal regime to a new technological era—Abraham and Rabin assess both the anticipated challenges of self-driving vehicles and the appropriate tort law responses to them. The authors expect automobiles to evolve through a number of stages, beginning with vehicles that are driver controlled, progressing to vehicles that are machine-assisted, then transitioning to vehicles that are machine-controlled but driver-assisted, and culminating in vehicles that are fully machine-controlled. Abraham and Rabin welcome this evolution. They believe that “[a]ccident rates will decline precipitously, by some estimates as much as 80-90 percent.” (P. 2.) Yet they also believe that the transition to automated technology will be “long and uneven.” Abraham and Rabin foresee periods in which varied vehicles will coexist on the roadway—much as the horse and buggy ultimately, but not immediately, gave way to the automobile. Continue reading "When Cars are the Drivers: Tort Law in the Fourth Industrial Revolution"
Zachary Liscow, Is Efficiency Biased?
, __ U. of Chi. L. Rev.
__ (forthcoming), available at SSRN
In “Is Efficiency Biased?,” Zachary Liscow explores the canonic optimal tax claim—sometimes known as the “double distortion premise”—that non-tax rules should be structured efficiently, without regard to distributional consequences, and that tax and transfer rules should then be used to offset any resulting negative distributional consequences and make such further distributional adjustments as are necessary to maximize aggregate social welfare. This standard claim assumes that “if the tax system achieves the appropriate distribution of income, then the distributive impacts of non-tax policies do not matter.” Ultimately, claim proponents conclude, “everyone can be made better off through efficient non-tax policies, plus taxes and transfers.” The foregoing paraphrases are Liscow’s; for a defense of the claim itself, see Louis Kaplow & Steven Shavell, Should Legal Rules Favor the Poor? Clarifying the Role of Legal Rules and the Income Tax in Redistributing Income and Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income.
Liscow asks the reader to consider a different possibility: that for a variety of reasons the tax system may not actually achieve an optimal distribution of income. If so, Liscow notes, then policies consistent with the double distortion premise will not maximize aggregate social welfare—indeed, they may produce markedly suboptimal results. Part of the problem, he observes, is that efficient non-tax policies are not generally “legal entitlement neutral”—that is, equally likely to favor rich and poor. This follows from the fact that Kaldor-Hicks efficiency “measures the willingness to pay of the parties affected by a policy and then chooses the policy that maximizes the sum of the willingness to pay of those parties” and that the wealthy tend to be willing to pay more for public goods and other legal entitlements. Continue reading "A Challenge to Optimal Tax Orthodoxy"
James W. Ely, Jr., Buchanan and the Right to Acquire Property
, __ Cumberland L. Rev.
__ (forthcoming), available at SSRN
Can property rights really exist if we do not have a right to acquire property?
When we hear about debates over property rights, they are often about the claims of people who already own property. The focus is on how owners can use property and what regulations the state can place on the use of one’s property. We often lose sight of perhaps a more fundamental set of questions about how we protect, facilitate, and pave the way for earning the means for the acquisition of property.
Only if one can acquire property do any of those other questions even matter. We first need to ensure that people have an equal opportunity to acquire property and become owners. Property rights issues related to possession and use only becoming relevant thereafter. Professor James Ely’s recent work, Buchanan and the Right to Acquire Property, reveals this important lesson: the debate over what property owners can do with property is of little consequence if we do not first resolve the debate over whether individuals have a right to acquire property and how that right is supported. Continue reading "The Horse Before the Cart: The Necessity of the Right to Acquire Property to Property Rights"
One of the most important and interesting conversations among inheritance law scholars has been the role genetic connection should play in establishing parentage and rendering a nonmarital child eligible to inherit from her father. The advent of easy and reliable genetic testing has crystallized the issue and focused scholars on which paradigm we should adopt now that we no longer need “surrogate” rules in intestacy statutes, e.g., acknowledgement by a putative nonmarital father, to help establish whether a child is likely that man’s child. There is a spectrum in terms of potential paradigms, running from a purely genetic model at one end where a DNA test establishing paternity would make a nonmarital child eligible to inherit even if she had no relationship with her father to a purely functional approach where the father’s behavior and intent would be the linchpin of whether the child is eligible to inherit, regardless of her genetic connection. I would characterize the former model as a “child-centric” model where the interests of the nonmarital child trump that of the father and his other marital children since the nonmarital child does not have to rely on the father to take any affirmative action like acknowledgement in order for the child to be eligible to inherit.
In her recent article Mother’s Baby, Father’s Maybe!-Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father?, Camille Davidson argues for the adoption of such a child-centric model of establishing paternity in the area of inheritance law. She highlights some of the historical antecedents of our current patchwork of state laws on defining paternity. Davidson also adopts a comparative lens in evaluating how states should embrace the genetic connection between a nonmarital child and her father as dispositive of not only of paternity but of her eligibility to inherit from him. In so doing, Davidson makes a compelling argument for this approach and adds an important voice to the academic conversation in this area of inheritance law.
Davidson begins by noting the dramatically different results in eligibility for inheritance between some other countries and many states in the United States. She contrasts Iceland with North Carolina and notes that a nonmarital child would inherit in Iceland simply by virtue of establishing a genetic connection with her father. As Davidson correctly notes, this is not the case in many American states where a child would have to establish more – for example, that her father acknowledged her – in order to be eligible to inherit. She advocates for a uniform rule akin to the rule in Iceland where genetic connection alone would entitle that child to take her share of her father’s estate. This would be regardless of the father’s knowledge that the child even existed or despite behavior on his part that would indicate a lack of intent for a nonmarital child to inherit.
To support her argument, Davidson traces the history of United States Supreme Court jurisprudence as it establishes the parameters for states to enact statutes that apply different inheritance rules for children born inside and outside of wedlock. She then details the various state laws that govern intestacy and inheritance as applied to no marital children. These include statutes like that in North Carolina, which requires that a formal adjudication of paternity or the father must acknowledge the child in writing and file it with the court. Davidson attributes these requirements, in part, to the period during which slavery existed in this country. The slave masters, who were white, had both legitimate and non-legitimate families. Despite the genetic connection between the master and the nonmarital children who were slaves, they could not be heirs. She quotes from a 19th century Kentucky case in which the judge wrote, “the father of a slave is unknown to our law…”
Davidson argues that the inconsistent treatment of nonmarital children not only yields inconsistent results, it is also violative of the Equal Protection Clause. She notes that with the advent of easy DNA testing, there is no longer an arguable state interest in the orderly disposition of estates that the United States Supreme Court has found justifies different burdens in the past. I agree and have argued that the entire analytical framework of cases like Trimble and Lalli is undermined by the advances in such testing and that the cases warrant reconsideration.
I would like to see Davidson identify and grapple a bit more with the counter-arguments to the adoption of a model which provides that a pure genetic connection renders a nonmarital child eligible to inherit. Those counter-arguments have been made by scholars like Lee-ford Tritt who would adopt a purely functional approach to parentage and there are important counterpoints to the argument that Davidson makes that it is the interest of the nonmarital child which should trump those of the genetic father or his other children, even in cases where the father has not relationship with the child.
It would also be useful for Davidson to more fully address the sound arguments in favor of a child-centric paradigm. For example, such fathers can always opt out of the default rules and exclude nonmarital children by will. There are also different goals for establishing paternity for family law purposes, for example determining custody and child support, as opposed to those of inheritance law which is more focused on the reallocation of property post-death. I hope to see Davidson build on these arguments in future articles. In this article, Davidson contributes much to the ongoing conversation by once again staking out the ground for a child-centric model of parentage in inheritance law.
You Don’t Own Me is a colorful telling of the Bratz v. Barbie battle, a modern David and Goliath decade-long dispute fought by MGA Entertainment and toy giant Mattel. It is a story of competition, innovation and greed, economic espionage and corporate personalities larger than life, of creativity and its legal treatment, of dolls, and ultimately of American culture itself. In Professor Orly Lobel’s masterful hands this award-winning book effectively mixes legal analyses and business insights to offer a compelling read.
At the same time, if you dig a little deeper, You Don’t Own Me is also a fantastic account of the legal profession saga behind the toy story, examining the various roles legal actors–outside counsel, in-house lawyers, judges and jurors–played in the litigation, and their interactions with clients, related parties, and the general public. In particular, Part III, titled Warring Titans (Pp. 125-243), is a must read for lawyers and law students interested in contemporary law practice. Continue reading "The Legal Profession Saga Behind the Toy Story"
I am probably too early in my career to recognize a watershed piece of scholarship, but this sure seems like one to me. In her most recent article, Maggie McKinley traces the origins of the administrative state to the historical practice of petitioning Congress for relief, as protected by the Petition Clause of the First Amendment. She details how Congress afforded petitions important procedural protections, and tells the story of how Congress eventually “siphoned off” its responsibility for resolving these petitions to boards, commissions, and other ad hoc bodies that became the foundation of the modern administrative state. Her overarching thesis is that the petition process reveals a constitutional obligation originally located in Congress, and now located in the administrative state, to ensure individualized and meaningful participation in federal lawmaking.
This thesis is, among other things, a breath of fresh air in a heated yet stale debate about the constitutional validity of the administrative state. As Kristin Hickman recently surveyed for Jotwell, this debate has fixated for decades on whether or not we can assume the constitutional validity of the administrative state from either its existence or its practical necessity to modern life. McKinley offers what I think is a truly novel argument to this contest: that the constitutional basis for the administrative state is at least partly rooted in the First Amendment’s right to petition the government. Drawing on a wide range of sources from Founding-era practices to legal process theory, her insights will interest readers on all sides of this debate. Continue reading "Excavating Congress’s Relationship to the Administrative State"
Legal positivism—or one style of doing positivist legal theory—is dead. Of course, there are different types of legal positivists in the world. For example, some legal positivists take a page out of the book of their opposite number, natural law theorists. But natural law theory —belief in a single right moral answer to legal questions—is going nowhere. To believe otherwise is to evince embarrassingly bad aesthetic judgment. Better to revive/reframe legal positivism. The way to do that is to return to the work of the master, Hans Kelsen, for it is only through a rethinking of Kelsen that legal positivism can be saved from its most ardent supporters in Oxbridge and North America.
This is the opening gambit to one of the most intriguing books in legal theory in recent memory. Alexander Somek—who has written two brilliant books on EU law and an equally impressive book on global constitutionalism —has produced a book every Anglophone legal theorist should read. To be sure, Somek writes in a style most Anglophone legal philosophers will find off-putting. While references to Hegel and Fichte abound, I have never read anyone who has a comparable command of the secondary literature in Analytic Legal Theory. Somek has read everything (in legal theory, analytic philosophy, German philosophy and more) and his analysis of the work of contemporary analytic legal theorists is itself ample reward for the time needed to consider his arguments. Continue reading "After Legal Positivism"
- Jennifer Lee Koh, When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement, __ Wash. U. L. Rev. __ (forthcoming), available at SSRN.
- Jennifer Lee Koh, Removal in the Shadows of Immigration Court, 90 S. Cal. L. Rev. 181 (2017).
Regardless of your views over the nationwide protests over family separations and refugee incarceration, these times are an urgent call to understand what is happening in our nation’s immigration system. Just as Padilla v. Kentucky’s holding on the duty to advise regarding the immigration consequences of a guilty plea underscored the need for criminal defense attorneys to understand immigration law, these times are a call to us as educators. Our students, family, friends, and the media turn to us to understand the policies and process behind the human dramas.
Contemporary aggressively streamlined immigration process is a mystery to most of us. As criminal justice scholars, many of whom have practiced in the field, we expect a certain semblance of process, even if we critique that process as less than we would hope. We expect a certain baseline of rights. Jennifer Lee Koh’s body of recent work is powerful and timely because it guides us through the realities of present immigration process, which defies expectations. Continue reading "Extreme Expedition"
Public rhetoric about immigration paints the issues in stark terms. Immigrants are either criminals and terrorists or they are family members, workers, and survivors of persecution. Immigration is either our secret sauce, the key to our national prosperity, or it is the sleeper cell in our midst, the smooth-talking snake. It is about inclusion or exclusion, banishment or return, belonging or outcast. Immigrants are virtual citizens, or vicious vipers. They are law-abiding; they are lawless.
Amanda Frost’s Cooperative Enforcement in Immigration Law describes how this dichotomy in the discourse plays out in approaches to deportation policy. Deportation policy, she observes, is stuck in two parallel grooves. It demands either unfettered deportation of unlawfully present noncitizens, or the exercise of prosecutorial discretion to permit prescribed groups of noncitizens to remain in the United States without a recognized status. Continue reading "Modernizing Immigration Enforcement"
- Glenn Reynolds, Splitsylvania: State Secession and What to do About it?, available at SSRN.
- Richard Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163 (2018).
Recent years have seen extensive focus on legal and political conflicts between states and the federal government. Dissenting states seek greater autonomy from federal dictates. Ongoing legal battles over Obamacare and sanctuary cities are just the latest examples of this phenomenon. But we have also seen a lesser well-known trend of conflict between states and local governments. Two new articles, by prominent legal scholars on opposite sides of the political spectrum contend that local governments should have greater autonomy from states. They make a solid case that could be even stronger if each side were more able to acknowledge the concerns of the other.
There is a long history of academic analysis of state-local relations, and scholars such as Yale Law School Dean Heather Gerken have previously made a case for increasing local autonomy. But these new articles related this longstanding topic to recent political controversies—and to our world of severe political polarization, where the conflicts between opposing parties and ideologies are more virulent than they have been for some time. Continue reading "Should Local Governments Have Greater Autonomy from State Governments?"
Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor (2018).
We have a problem with poverty, which we have converted into a problem with poor people. Policymakers tout technology as a way to make social programs more efficient, but they end up encoding the social problems they were designed to solve, thus entrenching poverty and over-policing of the poor. In Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, Virginia Eubanks uses three core examples—welfare reform software in Indiana, homelessness service unification in Los Angeles, and child abuse prediction in Pennsylvania—and shows that while they vary in how screwed up they are (Indiana terribly, Los Angeles a bit, and Pennsylvania very hard to tell), they all rely on assumptions that leave poor people more exposed to coercive state control. That state control both results from and contributes to the assumption that poor people’s problems are their own fault. The book is a compelling read and a distressing work, mainly because I have little faith that the problems Eubanks so persuasively identifies can be corrected.
Across the country, poor and working-class people are targeted by new tools of digital poverty management and face life-threatening consequences as a result. Automated eligibility systems discourage them from claiming public resources that they need to survive and thrive. Complex integrated databases collect their most personal information, with few safeguards for privacy or data security, while offering almost nothing in return. Predictive models and algorithms tag them as risky investments and problematic parents. Vast complexes of social service, law enforcement, and neighborhood surveillance make their every move visible and offer up their behavior for government, commercial, and public scrutiny. Continue reading "The Difference Engine: Perpetuating Poverty Through Algorithms"