Monthly Archives: September 2018
Ordinarily, jots feature forthcoming or just published works of scholarship that we find useful or notable. These are no longer ordinary times. As events depart increasingly from our usual frames of reference, I find myself seeking scholarship with a longer historical horizon. In doing so, I have encountered two remarkable books: Giorgio Agamben’s Homo Sacer: Sovereign Power and Bare Life and The Use of Bodies. These two represent the first and last installments of Agamben’s nine-volume Homo Sacer series, and speak most directly to our work as students of health law as it intersects with the political darkening we are living through today.
After 9/11, Agamben’s State of Exception (2003, translated 2005) was discussed amid the rise of emergency powers. But his work on “bare life” is rarely mentioned by American legal scholars (with some exceptions) even as bodies and bare lives have become ever more politicized and manifestly tied to the problem of sovereign power in the age of Trump. I believe that our work as health law scholars cannot avoid orienting itself in some way to Agamben. Continue reading "Giorgio Agamben and the Task of Health Law in a Biopolitical Age"
Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security
, 107 Cal. L. Rev.
__ (forthcoming 2019), available at SSRN
It’s no secret that the United States and much of the rest of the world are struggling with information and security. The flow of headlines about data breaches, election interference, and misuse of Facebook data show different facets of the problem. Information security professionals often speak in terms of the “CIA Triad”: confidentiality, integrity, and availability. Many recent cybersecurity incidents involve problems of confidentiality, like intellectual property theft or theft of personally identifiable information, or of availability, like distributed denial of service attacks. Many fewer incidents (so far) involve integrity problems—instances in which there is unauthorized alteration of data. One significant example is the Stuxnet attack on Iranian nuclear centrifuges. The attack made some centrifuges spin out of control, but it also involved an integrity problem: the malware reported to the Iranian operators that all was functioning normally, even when it was not. The attack on the integrity of the monitoring systems caused paranoia and a loss of trust in the entire system. That loss of trust is characteristic of integrity attacks and a large part of what makes them so pernicious.
Bobby Chesney and Danielle Citron have posted a masterful foundational piece on a new species of integrity problem that has the potential to take such problems mainstream and, in the process, do great damage to trust in reality itself. In Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, Chesney and Citron explain a range of possible uses for “deep fakes,” a term that originated from imposing celebrities’ faces into porn videos, but that they use to describe “the full range of hyper-realistic digital falsification of images, video, and audio.” (P. 4.) Continue reading "Don’t Believe It If You See It: Deep Fakes and Distrust"
Josephine Ross, What the #Metoo Campaign Teaches About Stop and Frisk
, ___ Idaho L. Rev.
___ (forthcoming 2018), available at SSRN
Josephine Ross’s article, What the #Metoo Campaign Teaches About Stop and Frisk, provides a unique and startling insight into the invasive experience of police body searches, and the psychological damage that can result. One of the law’s central roles is to limit the power of government officials (among others) to interfere with the public by prohibiting state officials from engaging in certain offensive acts. This rule-of-law role is especially important when government officials, like the police, are granted enormous material and normative powers to inflict physical harm and stigmatize civilians through the criminal law. The rule of law is even more important when many of the people most likely to come into contact with the police are already vulnerable thanks to their precarious status in society.
A core limit on the rule-of-law check on police power is accountability. Sometimes, prosecutors simply do not want to punish the police, for a variety of reasons. On other occasions, police misconduct is hard to spot, because so much of policing is low visibility. The police know this. Jerome Skolnick’s celebrated formulation of the problem, in his book, Justice Without Trial, called this a battle between the rule of law and the police’s order-maintenance role. All too often, Skolnick (and most policing scholars) revealed, the police depend upon low-level acts of harassment, rather than the criminal law, to maintain order and fight crime. And while that harassment is often high-visibility in relation to the civilian subjects of their authority, it is low-visibility in relation to the legal officials who could call them to account, as well as the general public, who generally do not know (or do not want to know) what the police are up to on the street.
As Josephine Ross reminds us in her fascinating article, these features of low public visibility, low institutional accountability, but high visibility to the tormented victims of harassment are precisely the features that police harassment shares with the sort of sexual harassment called out by the #metoo movement. The #metoo framework reveals that sexual assault and sexual harassment is something that lots of people know about, but no one talks about, except perhaps in whispers. Supervisors are unwilling to regulate their star performers and tolerate a culture of harassment and intimidation in which the onus is on the victims to avoid compromising situations, often at the cost of important, career-enhancing, social interactions. In a culture that tolerates this sort of behavior, the targets of harassment know that complaining has no effect at best, and at worst, produces severe career consequences. Continue reading "Out of Touch and Out of Order: Frisking as a Form of Sexual Harassment"
Horst Eidenmueller, Collateral Damage: Brexit’s Negative Effects on Regulatory Competition and Legal Innovation in Private Law
(May 7, 2018), available at SSRN
The dark side of Brexit is that it illustrates dramatically the contrast between a political context which operates largely on the basis of slogans and a business and economic context where details matter. When Airbus warned of the risks to businesses if the UK crashes out of the EU without a deal, Jeremy Hunt, the Health Minister, described the intervention as inappropriate. Mark Carney, the Governor of the Bank of England, has similarly been criticised for pointing out some of the economic disadvantages associated with Brexit.
The bright side of Brexit is that it is producing some excellent scholarship in a range of disciplines as scholars try to understand its causes and potential effects. In this working paper Horst Eidenmueller argues, convincingly, that Brexit will interfere with desirable innovation in private law in Europe, both in the EU and in the UK. This is one of many examples of potential harm from Brexit to the UK and to the remaining Member States of the EU. Continue reading "Implications of Brexit for Innovation in Private Law"
Irina Manta, Tinder Lies
, ___ Wake Forest L. Rev.
___ (forthcoming 2019), available at SSRN
In a world dominated by online dating, my own marriage seems quite quaint. We were introduced to each other! In person! By another human being! Sometimes I think that people give me a faintly odd look – a look that just 15-20 years ago was reserved for the bold (and seemingly “shameless”) people who dared to look for a partner online. When I left the dating world, it consisted primarily of websites. But as Irina Manta points out in her intriguing and provocative new article, Tinder Lies, online dating has become even easier and more ubiquitous with the surge in popularity of dating apps such as Tinder and Bumble. Manta confronts a problem that is as old courtship itself, that of sexual fraud, or “lies 1) that were put in profiles on online dating apps/sites, 2) whose content would materially influence the decision of a reasonable person whether to have sexual intercourse with the profile owner, and 3) remained uncorrected before sexual intercourse took place.” Like many problems, the issue of truth and disclosure in dating and sexual interactions has become more magnified and widespread when the primary platform for romantic and sexual introduction involves a great deal of anonymity, self-description, and the uncomfortable knowledge that one is, essentially, in a marketplace.
Tinder Lies is a terrific read. Manta takes on a question of increasing significance in the lives of many Americans who use online dating services and apps: What, if anything, should be done about users who lie about themselves in their profiles, where these lies lead other users to make decisions of significant personal import that they would not have otherwise made–to have sex with the person in the deceptive profile or to invest a significant amount of time and emotional resources in a relationship with a fraudster? While some lies might strike us as relatively harmless and easily debunked upon a face-to-face meeting, such the height or weight of the user, other lies are far more consequential, such as the person’s marital status,.
With these questions in mind, Manta offers an engaging primer on the history and current doctrinal landscape of legal responses to sexual fraud. She uses trademark law as a useful analogue to the problems of sexual fraud in online dating and offers a framework for a state law response to sexual fraud in which behavior that amounts to false advertising subjects that person to civil liability. She concludes by suggesting that this legislative framework could be operationalized by offering claimants access to expedited proceedings in small claims court. As a civil procedure scholar, it is this last piece that I find most intriguing (and which is, presumably, of most interest to JOTWELL Courts Law readers). Continue reading "Lies, Dating Lies, and Small Claims Court"
Josh Mitts, I Promise to Pay
, available at SSRN
What is the point of signing on the dotted line? In days of yore (i.e., before the E-Signature Act), signing your name with a pen was thought to caution, evidence, and channel promissory behavior. But of late, the dotted line has gotten a bad rap. In April 2018, one of the last domains of contractually-related autographs—credit cards—gave up the ghost. It seems likely that the next generation of contracting parties will never sign a physical contract. Sic transit gloria Montblanc.
Apart from pen manufacturers, should anyone care about the loss? As it turns out, there’s a body of scholarship that shows that being present at a contract’s inception—and personally marking your assent—makes later breach less likely. Several recent experimental studies have found that signing a contract has meaning—it induces caution and retards promise-breaking. Now, in an interesting draft paper, Joshua Mitts has shown that borrowers who do not personally attend their mortgage closing are much (40%!) more likely to default than buyers who are in the room where it happened. That’s true even though borrowers who skip the closing and use a power of attorney (POA) to close, are no more likely to initially show signs of financial distress. Continue reading "Commitment in the Real World"
Daniel J. Hemel & Eric A. Posner, Presidential Obstruction of Justice
, 106 Cal. L. Rev.
__ (forthcoming 2018), available at SSRN
Full-length articles on current newsworthy issues are a difficult genre. Special praise, therefore, goes to legal scholars who thoroughly explore a constitutional question on a hot-button issue not only in depth and in a timely fashion, but with insights that exceed the present moment. Dan Hemel and Eric Posner have made just such a contribution with Presidential Obstruction of Justice.
“Can a president be held criminally liable for obstruction of justice?” they ask. (P. 1.) This question has taken on greater urgency in the wake of President Trump’s firing of FBI director James Comey and the continuing investigation by special counsel Robert Mueller into Russian efforts to interfere with the 2016 presidential election and possible collusion between Russia and the Trump campaign. Continue reading "The Law of Obstruction as a Check on Presidential Power"
Evan D. Bernick, Envisioning Administrative Procedure Act Originalism
, 70 Admin. L. Rev.
__ (forthcoming 2018), available at SSRN
Forty years ago, then-Professor Antonin Scalia published Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court in the Supreme Court Review. There, the future Justice both chastised the D.C. Circuit for ignoring the text of the APA (Administrative Procedure Act) and offered a “lament” about how faithful judicial adherence to the original public meaning of that foundational statute could not provide a durable framework for administrative governance. Thus, even for skeptics of federal common-lawmaking like Scalia, the original APA has remained in substantial part unloved, or at least often benignly neglected.
Evan Bernick, a visiting lecturer at Georgetown Law, and a thoughtful provocative new voice in administrative law, is wondering whether administrative lawyers have given up too fast on the romance. In Envisioning Administrative Procedure Act Originalism, Bernick imagines what it would look like to apply a consistently originalist approach to the APA. He does not offer a complete picture of the results those methods would yield, but pointing to that sketchy spot on the map underlines the importance of his project. Originalists have lavished far less attention on a statute that frames much of modern governance than they have on provisions of the Constitution that are less likely to affect the lives of Americans every day. What APA originalism might unearth should be of interest to originalists and also to non-originalists who see original meaning or intention as an important input in the interpretive process. Continue reading "Rediscovering the APA"
Lesley Wexler, Jennifer Robbennolt, & Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice
, available on SSRN
It may have been Ashley Judd’s allegations against Harvey Weinstein, the movie mogul, that finally unleashed the powerful movement to call workplace harassment to account, but the movement had clearly been building for some time. Spurred along by the sexism surrounding the 2016 presidential election and allegations of harassment and abuse against high profile figures in the news, entertainment, and tech industries, in politics, and even in the judiciary, the #MeToo movement feels like a public reckoning. The Time’s Up initiative, seeking to institutionalize reform and support victims of harassment, provides a concrete path forward to capitalize on the movement.
A number of activists have called for a restorative or transitional justice approach in order to create real change. Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy take up that call in #MeToo, Time’s Up, and Theories of Justice. They summarize the movement and initiatives currently under way, explore the key components of restorative justice, and look more broadly to the insights of transitional justice to help chart a way forward. As someone who has been advocating for years for a new approach to transparency and accountability surrounding discrimination in the workplace, I found this article incredibly valuable. Continue reading "Transforming the Workplace with Help from Transitional Justice"
James J. White, Fraudulent Conveyances Masquerading as Asset Protection Trusts
, 47 UCC L.J.
367 (2017), available at SSRN
Property rights are contingent. While property owners enjoy exclusive access to property owned, laws governing creditors’ rights moderate owners’ rights under certain conditions. Failure to satisfy a debt can trigger legal processes that may even lead to a complete stripping of ownership rights in favor of the creditor. Viewed this way, the sorting of rights to property is a zero-sum game where a creditor’s gain offsets an owner’s loss.
Trusts can reduce the vulnerability of an owner’s property rights by adding additional complexity to the ownership arrangement. The spendthrift trust is the obvious example. In such an arrangement an owner transfers the ownership bundle in manner that is said to “split” new ownership rights between a trustee and one or more beneficiaries. Afterwards, the beneficiaries enjoy the benefits of ownership, but neither a beneficiary nor most third parties are capable of diminishing beneficial ownership rights in the spendthrift trust arrangement. Continue reading "A Creditors’ Rights Perspective on Domestic Asset Protection Trusts"
The fascinating case made by Yuval Feldman’s recent book is that most wrongdoing is done by good people who, too frequently, allow themselves to do wrong. We are egocentric; our brain works hard to promote self-interest whilst protecting the self-image that we are morally upright. And it does so quietly (my word, not Feldman’s); much of the decision-making is done subconsciously, intuitively – albeit sometimes, importantly, with glimmers of recognition.
Feldman classifies us into three types: deliberate wrongdoers; situational wrong doers, subject to this quiet egocentricity; and the genuinely good. Even the latter are prone to moral blindspots. Concerned about the prevalence of the last two groups, Feldman makes a strong case for taking situational ethics more seriously. This allows a psychological engagement with sociological questions of structure and agency. Situational ethics sees anxieties about bad apples and bad barrels as being better understood as a concern with bad decisions; we are located in webs of design and accident. What Feldman wants is for regulatory design and jurisprudence to take bad barrels and bad decisions more seriously. The normative judgements that drive ex post punishment as a regulatory strategy are superseded by seeking improvements in behaviour before wrongs can manifest. Intentionality, he suggests, is “outdated.” (P. 40.) Continue reading "Good People and the Ethics of Quiet Egocentricity"