Yearly Archives: 2018
Jan 22, 2018 Shelby D. GreenProperty
Many first-year property classes start with the centuries-old Johnson v. M’Intosh (1823). There, Chief Justice John Marshall declared that the Indians were but occupants on their ancient lands, subject to the Europeans’ ownership, which was founded upon their “discovery” of America. Apart from general musings on the fairness and cogency of this ruling, property professors mostly leave the discussion of Indian land law and how it developed over time for another day and another course.
Professor Shoemaker’s article, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, reveals how Indian land law, despite its complexity, is a brilliant construct for teaching traditional property concepts such as the system of land tenures as well as property’s limits and justifications. It is also well-suited to understanding other doctrinal topics such as the regulatory state, decedents’ estates, and torts. Continue reading "Teaching Property Through Indian Land Law"
Jan 19, 2018 Sarah WaldeckTrusts & Estates
In Posthumous Privacy, Decedent Intent, and Post-Mortem Access to Digital Assets, Alberto B. Lopez discusses a distinctly modern problem: how much access should a personal representative have to decedent online accounts? Surprisingly few states have addressed this important question, although there is a recent flurry of proposals. Lopez argues that the legislative debate has failed to account for the decedent’s privacy interest and has mostly ignored decedent intent, the lodestar of estates and trusts law. He concludes that when decedent privacy and intent are properly “included in the legislative balance,” policies will lean “toward non-disclosure for individuals who die intestate and toward disclosure if the testator has instructed [by will] that account contents be available.” (P. 242.) While I would ultimately permit more access than Lopez recommends, his article is a must-read because it highlights an important estate planning problem and makes the reader ponder the appropriate scope of post-mortem privacy.
Digital accounts contain a plethora of information: photographs and other individual memories, email correspondence, entertainment files, individual work product, career information, financial data, and on and on and on. Some of this information makes the job of administrating an estate easier; some of it has subjective value to the decedent’s survivors; and some of it may even have actual market value. Continue reading "The Dead’s Online Accounts"
Jan 18, 2018 Joseph SeinerWork Law
Stephanie Bornstein,
Equal Work, 77
Md. L. Rev. (forthcoming 2018), available at
SSRN.
In her article, Equal Work, Professor Stephanie Bornstein (Florida) does a superb job of providing a fresh approach to the continuing problem of pay discrimination in the workplace on the basis of gender and race. As Professor Bornstein correctly acknowledges, pay discrimination has remained an ongoing problem in our society for decades. Her article makes two extraordinarily useful contributions: first, it undertakes a comprehensive survey of the latest literature on pay discrimination and its causes, and second, it offers solutions that do not require legislative reform to chip away at this pervasive problem.
Early in her article, Professor Bornstein provides a comprehensive review of the existing data on gender and pay discrimination in the United States. This overview does a nice job of bringing together all of the most up-to-date research in this area. Then, Professor Bornstein makes an effort to explain why the pay gap continues to exist in the course of exploring recent research on occupational segregation and income inequality in this country. To this end, Professor Bornstein also addresses the complexities of the law on pay discrimination in the workplace, closely examining Title VII of the Civil Rights Act of 1964 and the Equal Pay Act (EPA), before discussing recent efforts on the state level to resolve these problems, including statutes passed in California, Massachusetts, and Oregon. The paper also correctly recognizes the many efforts to close the race and gender pay gap that have been made over many decades and at all levels — federal, state, and local. While some of these efforts have helped reduce pay disparities at different points in our nation’s history, the gap remains persistent and efforts to fix the problem have stalled in recent years. Continue reading "A Modern Approach to Pay Disparities in the Workplace"
Jan 17, 2018 Francesca BartlettLegal Profession
In Lawyers, Confidentiality and Whistleblowing, Christine Parker, Suzanne Le Mire and Anita MacKay make a case for a “gatekeeper of justice whistleblowing obligation” based upon the special relationship of lawyers to their clients and to the law:
… lawyers hold special appeal as potential whistleblowers. They are trained and able to spot illegality and abuses of the justice system. Their duty to the administration of justice and to the court is considered to be paramount; prioritised over the duty to their client. This duty could place a responsibility on the lawyer to respond to, prevent or perhaps expose misconduct that affects the administration of justice. (Pp. 1010-11.)
Having established the obligation, they propose a model for deciding when and how to whistleblow, which contains three “ethical touchstones” to be considered:
First, the relationship between the lawyer whistleblower and the wrongdoer. Secondly, the type of wrongdoing to be disclosed. Finally, the process adopted by a lawyer whistleblower faced with misconduct… (P. 1016.) Continue reading "Framing a “Gatekeeper of Justice Whistleblowing Obligation”"
Jan 16, 2018 Brian BixJurisprudence
William Blackstone was for a long time one of the central figures of both British and American legal thought. His Commentaries on the Laws of England was the text by which many learned law in England. In the United States, Blackstone was equally authoritative, though often read with additional commentary (e.g., by St. George Tucker).
Blackstone’s Commentaries has also played a significant role within legal theory—especially for theorists critical of certain features of the approach to adjudication and judicial reasoning that he espoused and are large parts of Anglo-American tradition. Criticism of Blackstone and his Commentaries is, for example, integral to much of Jeremy Bentham’s writings on law. Bentham was an opponent of judicial law-making in general and the common law approach in particular. In a small piece called “Truth versus Ashurst” he compared the way that common law judges make law to the way people make laws for their dogs: “When your dog does anything you want to break him of, you wait till he does it, and then beat him for it.” This attack on the unpredictability and retroactivity of common law decision-making remains important to the present day. Continue reading "A New Blackstone"
Jan 15, 2018 Christopher J. SprigmanIntellectual Property Law
Dan L. Burk,
Algorithmic Fair Use,
U. Chi. L. Rev. (forthcoming), available at
SSRN.
As part of an invited symposium, organized by The University of Chicago Law Review, on whether artificial intelligence will spell the end of one-size-fits-all laws, Dan Burk has written a terrific essay explaining why he’s skeptical that AI or machine learning will lead to better copyright fair use decisions. In the essay, Algorithmic Fair Use, Professor Burk identifies three main bases for his concerns.
First, Professor Burk is skeptical that American fair use law, which is articulated as a relatively open-textured standard (as compared with U.K.-style “fair dealing” provisions that set out a laundry list of tightly specified circumstances in which portions of a copyrighted work may be used without permission), could ever be reproduced with much fidelity as a set of software rules. The resistance of American fair use to ruleification, and therefore to automation, runs deep – not least because the content of any fair use rule depends upon antecedent considerations that are themselves resistant to distillation into rules: Continue reading "Will Algorithms Take the Fairness Out of Fair Use?"
Jan 12, 2018 Rosalind DixonInternational & Comparative Law
In Democracy Against Domination, Sabeel Rahman has written a book for our time: a serious intellectual effort to grapple with the problems posed by rising economic inequality and concentration of power, and the role of democratic ideas and processes in responding to these challenges. The book is wonderfully written, impressively broad as well as deep, and offers an original and interesting thesis—the idea that the concentration of economic power in the hands of a powerful few poses an existential threat to individual freedom, and that the solution to this problem lies not in elite-driven forms of “managerial government,” but rather in individual freedom itself. He argues, in other words, that the response to this increasing form of economic domination should be a call for new forms of economic policy and regulation driven and shaped by a highly popular, participatory form of democratic government which calls on the power of “the liberty of the ancients” (compare Stephen Breyer’s Active Liberty).
This puts the book firmly in the genre of what Jeremy Waldron has called, and Rahman himself labels, “political political theory.” Rahman links this theoretical or philosophical argument with a richly historical account of the role of populist movements responding to the “First Gilded Age” in the 1920 and 30s. He thus connects his call for a new form of progressive populism—or popular challenge to corporate power and privilege—to deep historical roots. In this way, his book is similar to another excellent recent book on a related topic, The Crisis of the Middle-Class Constitution (2017), by Ganesh Sitaraman. Together, one might in fact argue that Rahman, Sitaraman and others are contributing to developing a new—or at least renewed—form of historical-political political theory. Continue reading "A Newly Progressive Political Economy?"
Jan 11, 2018 Binyamin BlumLegal History
Accused by Hillary Clinton of paying no income tax for years, in one of the most memorable moments of the 2016 presidential debates, Donald Trump retorted, “That makes me smart.” Days later, Rudolph Giuliani took Trump’s comment a step further, stating that tax avoidance demonstrated the candidate’s “absolute genius.” During the campaign Trump flouted a forty-year tradition among presidential candidates by refusing to release his tax returns. Pundits speculated that all this might affect Trump’s electability. But as we found out on November 8, 2016, voters did not seem to penalize him for this (or other) behavior.
This election episode epitomizes the declining relationship among tax, civic identity, and citizenship, which are at the center of Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel. Likhovski explores the rise and rapid fall of what he calls the “intimate fiscal state”: a state seeking to ensure its citizens’ tax compliance through a close, direct, and almost family-like relationship, relying more on social norms than legal sanctions. Continue reading "On Fiscal Citizenship: A Cultural History of Tax Law"
Jan 10, 2018 Earl M. MaltzEquality
The tenor of the debate over the propriety of creating religious exemptions to generally applicable laws has changed dramatically in recent years. As recently as 1993, progressives and conservatives joined forces to secure passage of the Religious Freedom Restoration Act, which requires the granting of such exemptions in cases where compliance with a statute would “substantially burden a person’s exercise of religion” unless the denial of the exemption was necessary to serve a “compelling” governmental interest. However, as the focus has turned to requests for exemptions by employers who object to the contraceptive mandate of the Affordable Care Act and merchants who wish to avoid providing goods and services for same-sex weddings, the debate over religious exemptions has taken on a starkly partisan aspect, with advocates for both sides often eschewing reasoned argument in favor of emotionally charged rhetoric that demonizes their opponents and effectively denies the possibility of good faith disagreement.
Against this background, Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis, is a particularly welcome contribution to the debate. After a brief overview of the legal and political background of the current dispute over religious exemptions, Debating Religious Liberty presents a series of essays designed to illuminate the different positions on the issue. Corvino, a longtime advocate for LGBT rights, makes the case against all but the narrowest religious exemptions to laws designed to protect people from discrimination on the basis of sexual orientation or gender identity (SOGI laws). By contrast, Anderson and Girgis, both of whom are well-known for their opposition to government recognition of same-sex marriages, contend that religious objections should be honored in a much broader range of circumstances. Continue reading "Reasoned Debate on Religious Exemptions"
Jan 9, 2018 Sergio J. CamposCourts Law
Courts, practitioners, and scholars have recently focused on discovery costs in civil litigation. This produced recent amendments to the Federal Rules of Civil Procedure emphasizing that discovery requests be “proportional” rather than excessive. But this focus has ignored the fact that the information sought in discovery about the defendant’s liability is often consciously created by the defendant’s compliance measures before any litigation actually occurs (a point I am examining in depth in a current project). More importantly, potential defendants may create such information with an eye to ensuring that uncovering it in litigation or through similar regulatory intervention is costly or impossible. Accordingly, reducing the “costs” of discovery by limiting discovery to “proportional” requests may have the perverse consequence of making it even less likely that such information is ever uncovered, giving defendants greater incentive not to comply with the law in the first place.
This perverse consequence of reducing discovery costs is made vivid in Roy Shapira and Luigi Zingales’s new article examining DuPont’s treatment of C8, a chemical used in the production of Teflon-containing products. As Shapira and Zingales detail, DuPont learned in 1984 (and even earlier) that C8 posed potentially serious health risks because of the chemical’s bio-accumulative and bio-resistant properties. Among other things, C8 may cause birth defects in an infant’s eyes and nostrils, a fact discovered when DuPont examined the children of its employees. Nevertheless, DuPont continued to use C8, and even doubled its C8 emissions, for nearly three decades after learning about these risks, stopping its use in 2013. Continue reading "Uncovering Through Discovery"
