Monthly Archives: April 2019
Caleb Nelson, “Standing” and Remedial Rights in Administrative Law
, 105 Va. L. Rev.
__ (forthcoming 2019), available at SSRN
After the slog of teaching constitutional standing—Lujan, Massachusetts, Freedom from Religion, Akins, Spokeo, and the rest of that crowd—it is always a relief to get to statutory standing. “Here’s the deal,” I say to the class, “statutory standing is just a matter of finding a statutory right of action to challenge agency action. You can find that ticket to judicial review in many enabling acts. But the most important one for our purposes is the APA’s right of action established by 5 U.S.C. §§ 701-706. Section 702 says you can use that right of action so long as you have ‘suffer[ed] legal wrong because of agency action, or [have been] adversely affected or aggrieved by agency action within the meaning of a relevant statute.’ The Supreme Court has told us that a plaintiff can qualify under the ‘adversely affected or aggrieved’ prong of § 702 by claiming that agency action has harmed interests that ‘arguably’ fall within the ‘zone of interests’ protected by a statute or constitutional provision that the plaintiff asserts the agency action has violated. And the Supreme Court has also told us, a whole bunch of times, that this arguably-within-the-zone test for invoking the APA’s right of action is super-easy to satisfy.”
Thanks to reading Caleb Nelson’s splendid article, “Standing” and Remedial Rights in Administrative Law, I see that things are not so simple as I thought. The major project of Professor Nelson’s article is to explain how the consensus understanding of the expansive reach of remedial rights under the APA evolved from a profound misreading of the source of the arguably-within-the-zone test, Justice Douglas’s opinion for the Supreme Court in Association of Data Processing Service Organizations v. Camp. The upshot of Professor Nelson’s analysis is that Data Processing, properly understood, does not stand for the proposition that satisfying the arguably-within-the-zone test is enough for a plaintiff with constitutional standing to invoke the APA’s right of action. To get to this conclusion, Professor Nelson takes a deep dive into the evolution of standing doctrine during the middle half of the twentieth century. The result is a terrifically lucid and engaging account, filled with telling details—notably including Professor Nelson’s recounting, based on both published opinions and internal correspondence, of the doctrinal duel between Justice Douglas and Justice Brennan over the framework for standing in Data Processing and its companion case Barlow v. Collins. (Pp. 37-52.) Continue reading "Data Processing Detective Story"
Andrew Elmore, Franchise Regulation for the Fissured Economy, 86 Geo. Wash. L. Rev. 59 (2018).
An often forgotten area of employment law is the role played by millions of employees working for franchise stores across the country. In his new paper, Franchise Regulation for the Fissured Economy, Professor Andrew Elmore tackles this important area of the workplace, addressing the current standards that govern these workers. Professor Elmore notes the very serious problem of noncompliance in this area with basic employment law, and explains some of the causes that have resulted in this problem.
The franchisee/franchisor relationship is relatively straightforward, as franchisors generally license trademarks to the franchisees. Problematically, in the workplace context, the courts (as a general matter) have failed to consider franchisees as joint employers, which has done little to discourage individual stores from taking unlawful employment actions. While the existing scholarship has focused on the problem of addressing employment law issues arising from subcontractors under the joint employer doctrine, Professor Elmore’s piece takes a different approach. His work proposes that, with respect to franchisors, we should not look to the traditional joint employer test to enhance compliance with employment law. This test does not fit neatly with the construct of most franchise relationships, as the definition of control is currently applied far too narrowly to reach many of the individual stores. In light of this consideration, liability standards must be considered that identify the more unique role franchisors play in the current economy. Continue reading "A Fresh Look at the Workplace Rules for Franchisors"
Last year I reviewed Adam J. Hirsch, Inheritance on the Fringes of Marriage, which explored whether donors would want their fiancé, ex-fiancé, separated spouse, or divorcing spouse to take a share of their estate. Following this theme of donor intent vis-à-vis a current or former intimate partner, I was particularly interested in Naomi Cahn’s article, Revisiting Revocation Upon Divorce, in which she challenges lawmakers’ assumptions about decedents’ relationships with their former spouses and their former spouses’ relatives after divorce or annulment. Under the 1990 Uniform Probate Code, divorce or annulment revokes any provisions in a will or nonprobate instrument concerning the former spouse. It also revokes bequests to the former spouse’s relatives, including her children from another relationship, parents, siblings, nieces and nephews—the testator’s former stepchildren and in-laws. Although the presumption of revocation may be rebutted in limited circumstances, this is both difficult and rare. Many states follow the 1990 UPC’s approach.
I must admit that the application of the doctrine of revocation upon divorce to a former spouse’s relatives has never seemed quite right to me. Maybe it is because I share close relationships with my spouse’s relatives and would continue to want them to benefit from my estate if my marriage were to end in divorce. My expectations are also based on my parents’ own experience with divorced relatives. My mother was very close to her sister’s ex-husband until his death and my father is very close to his brother’s ex-wife. Of course, my own personal experience is not evidence of what most donors would want, but Professor Cahn identifies several developments that demonstrate that the donor’s relationship with the former spouse and the former spouse’s relatives may not necessarily end when the legal relationship is terminated. Continue reading "“Renegotiated Families” and Donative Intent"
Suicide has become an important public-health problem, leading Alex Long to revisit the unduly neglected question of whether tort law should recognize wrongful-death actions for cases in which the defendant’s tortious conduct caused the victim to commit suicide. After describing the increasingly worrisome trends—suicide is now the tenth leading cause of death in the country—Long insightfully constructs the historical, religious, and sociological motivations embedded in the tort doctrines, labeled the “suicide rule” by one jurisdiction, that ordinarily bar recovery for suicides. “Tort law’s historical treatment of cases involving suicide represents a combination of society’s traditionally negative views regarding suicide and tort law’s traditional concerns with foreseeability and expanding liability in cases involving emotional injury” (P. 16).
Long identifies “a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles” (P. 6). Long defends this approach, drawing on the principles that courts use to formulate the tort duty in cases of pure emotional distress. “Ordinarily, suicide will be outside the foreseeable scope of the defendant’s negligence” and therefore not subject to liability as per the traditional approach (P. 49). But if the plaintiff can prove “that the negligent conduct is especially likely to result in suicide,” courts should permit recovery for the wrongful death. (Id.) Long correctly diagnoses the problem—tort principles do not justify the suicide rule—although these wrongful-death recoveries will be more common than he concludes. The increased liability is fully justified in my view. Continue reading "Rethinking Tort Liability for Suicides"
Donald L. Kochan, The [Takings] Keepings Clause: An Analysis of Framing Effects From Labeling Constitutional Rights,
45 Fla. St. U. L. Rev.
__ (forthcoming), available at SSRN
“What’s in a name?
That which we call a rose
By any other name would smell as sweet.”
These words might ring true for William Shakespeare’s tragic lovers, Romeo and Juliette, but not so much so for the takings clause in the Fifth Amendment of the United States Constitution. In his compelling new article, The [Takings] Keepings Clause: An Analysis of Framing Effects From Labeling Constitutional Rights, Professor Donald L. Kochan employs interdisciplinary research from the fields of linguistics, psychology, and business product advertising to remind his reader that the words we use to label (or frame) constitutional rights do, in fact, matter.
The majority of regulatory takings challenges are brought under either the categorical takings test articulated by the Supreme Court in Lucas v. South Carolina Coastal Councilor or the three-part balancing test the Court applied in Penn Central Transportation Co. v. New York City. Property owners hardly ever win takings claims under either of these regulatory takings frameworks. Continue reading "What’s in a Name? Apparently a Lot"
Law Clerks for Workplace Accountability, Public Comment
On The Judicial Conference of the United States’ Proposed Changes to the Code of Conduct for U.S. Judges and Judicial Conduct & Disability Rules.
In 2017, United States District Court Judge Lynn H. Hughes of the Southern District of Texas mused, “It was a lot simpler when you guys wore dark suits, white shirts and navy ties… We didn’t let girls do it in the old days.” The Assistant U.S. Attorney appearing before Judge Hughes that day, Tina Ansari, believed Hughes’ comments were aimed at her, something Hughes disputes. The Fifth Circuit reversed the judge’s merits decision in Ansari’s case. It also scolded the judge for his courtroom remarks, calling them “demeaning, inappropriate and beneath the dignity of a federal judge.”
Fast forward to 2019. Judge Hughes summarily dismissed Ansari from his court. She appeared in his court four days later. Again, without explanation, he dismissed her. His reason? Judge Hughes—still smarting from the Fifth Circuit’s comments—explained that “Ms. Ansari is not welcome here because her ability and integrity are inadequate.”
This story may sound like an unusual example of one female lawyer’s unfortunate experience with one federal judge. I and many other women are here to tell you it is not. Undoubtedly, plenty of members of the judiciary have positive and respectful relationships with the women with whom they work. At the same time, as with any profession, the federal judiciary is not immune to sexual harassment, gender discrimination, and complicity in an environment that creates fertile ground for those behaviors. Recently approved changes to the Code of Conduct for U.S. Judges and Disability Rules represent a recent effort to improve the judicial workplace for women. Important Public Comment from Law Clerks for Workplace Accountability (“LCWA”) represent the kind of tenacity necessary to ensure real change takes place. Continue reading "Accountability Requires Tenacity"
Every law student is told repeatedly to check that the cases they are relying on are still “good” law. They may even be told that not using a citator such as Shepard’s, KeyCite, or BCite could be malpractice and multiple ethics cases would support that claim. But how reliable are the results returned by these systems?
Paul Hellyer has published the surprising results of an important study investigating this question. Hellyer looked at 357 citing relationships that one or more of these three citators labeled as negative. “Out of these, all three citators agree that there was negative treatment only 53 times. This means that in 85% of these citing relationships, the three citators do not agree on whether there was negative treatment.” (P. 464.) Some of the differentiation between systems could be attributed to one system incorrectly marking a relationship as negative when it is not. This might be considered a less egregious mistake if one presumes that the researcher would review the flagged case and find no negative treatment, although it is a costly mistake in a field where time matters. However, Hellyer accounts for the false positive (or negative, in this case) problem and the results of his study are distressing. Continue reading "Is it a “Good” Case? Can You Rely on BCite, KeyCite, and Shepard’s to Tell You?"
An implicit, if not often explicit, premise of the cluster of work often identified as “law and development” is that there are distinct spheres of legal reform activities in countries deemed “developing” and in those that have reached the status of “developed.” Many critiques of these presumptions have raised concerns about cultural politics and empirical verification. And while most acknowledge that institutions matter, making use of this insight has generated more ideological heat than practical certainty. Especially in these darker days of democratic backsliding and growing authoritarianism, grappling with the tangled past of efforts to advise or orient national legal reform projects has left many with the question of “what now?”
Mariana Prado and Michael Trebilcock’s new monograph, Institutional Bypasses, takes on this challenge by articulating a more procedural, methodological answer to this question, “what now?,” in lieu of advancing a renewed host of substantive best practices. In line with their recent field-leading publications, Prado and Trebilcock use the concept of the institutional bypass to model the empirically-committed experimentalism they have come to champion by presenting legal reform as an iterative learning process squarely aimed at avoiding the pitfalls of past efforts. Continue reading "Bypassing Intransigent Legal Institutions"
In July 2018, the State Bar of California authorized the formation of a Task Force on Access Through Innovation of Legal Services. This Task Force has been asked to identify possible regulatory changes to enhance the delivery of, and access to, legal services. It will address three broad topics: 1) the definition of unauthorized practice of law; 2) lawyer marketing, advertising, partnership, and fee-splitting rules; and 3) non-lawyer ownership and investment. The first sentence of the Task Force Fact Sheet states that “Too many Californians needing legal services cannot afford an attorney or don’t have meaningful access.” The second sentence of the Fact Sheet cites a 2018 Legal Market Landscape Report that was commissioned by the State Bar of California and written by Professor Bill Henderson.
Professor Henderson’s 2018 Legal Market Landscape Report is a document that all lawyers should read. It is jam-packed with data, and it provides the grounding for California’s ongoing conversations regarding the proper scope of lawyer regulation. Moreover, much of the information in the Report is not California-specific and thus is of interest to anyone who is concerned about access to legal services and the proper scope of lawyer regulation. Continue reading "Back to the Future (Again) Regarding the Regulation of Legal Services"
The interface between law and neuroscience has been a continuing source of interest for lawyers and philosophers. Many scholars have hailed developments in neuroscience as singularly transformative for our understanding of human agency. Further—it is argued—once we understand human agency from the neuronal point of view, we will be forced to alter the ways in which our practices of responsibility—especially law—regulate human conduct.
In the view of some scholars, claims for the transformative impact of neuroscientific developments on law are overblown. Taken to an extreme, those who trumpet the transformative effects of neuroscience on law have sometimes been found to suffer from the malady Stephen Morse labels “Brain Overclaim Syndrome.” Labelling the syndrome a “cognitive pathology,” Morse argues that claims made by those in the grip of the pathology make claims that cannot be conceptually or empirically sustained.
The authors of this provocative and interesting book make strong claims for the importance of neuroscience for our practices of responsibility. Their strongest conceptual claim is one they make often. In fact, the claim is the central thesis of their book. When it comes to responsibility assessment, the authors argue that the brain itself—specifically its executive functions—are “the seat of human responsibility.” (P. viii.) Continue reading "The Neuroscience of Responsibility"
Abhishek Nagaraj & Imke Reimers, Digitization and the Demand for Physical Works: Evidence from the Google Books Project
(2019), available at SSRN
From 2004 until 2009, the Google Books Project (GBP) digitized thousands of books from the collection of Harvard University’s library and made them available online. According to Google and proponents of the GBP, digitization would introduce readers to books that they otherwise couldn’t find or obtain, increasing access to and interest in the digitized works. But according to some authors and publishers, the creation of free digital copies would usurp the demand for print copies, undermining an important industry. This dispute was at the heart of a decade of litigation over GBP’s legality. After all of that, who was right?
According to a recent empirical study by economists Abhishek Nagaraj and Imke Reimers, the answer is: both of them. The paper, Digitization and the Demand for Physical Works: Evidence from the Google Books Project, combines data from several sources to reveal some key features about the effects of digitization on dead-tree versions of books. The story they tell suggests that neither of the simple narratives is entirely correct. Continue reading "Discovery, Cannibalization, or Both: How Digitization Affects Demand for Physical Copies"