Monthly Archives: July 2019
Leah Litman’s Remedial Convergence and Collapse highlights a common two-step phenomenon in the law of constitutional torts. First, the Supreme Court increases the standard for obtaining one remedy (“Remedy A”), relying in part on the availability of another remedy (“Remedy B”). The Court then increases the standard for obtaining Remedy B, relying in part on the availability of Remedy A. The result is that neither remedy is available. Across a range of remedial domains, the Court has imposed similar, high standards for relief, often citing the availability of other remedies that do not exist as a practical matter. Litman calls the similarity of the remedial standards “convergence.” The ultimate unavailability of any remedy? “Collapse.”
To illustrate her point, Litman focuses primarily on three mechanisms of constitutional enforcement that are of particular importance to policing and criminal justice: (1) qualified immunity; (2) federal habeas; and (3) the exclusionary rule. As Litman puts it, “[t]he standards for qualified immunity, habeas corpus, and exclusion of evidence have … converged around a similar, overarching principle that purports to select for unreasonably egregious actions.” (P. 1480.) Continue reading "How Remedies Disappear"
Meirav Furth-Matzkin & Roseanna Sommers, Consumer Psychology and the Problem of Fine Print Fraud
, 72 Stan. L. Rev.
__ (forthcoming 2020), available at SSRN
Sellers entice consumers to make purchases by advertising many lovely benefits of their products. It is quite common, however, to then qualify and narrow these marketing promises in the fine print terms attached to the transactions. What if sellers outright deceive consumers—by making loud promises that they surreptitiously negate or contradict in the fine print? What if, say, a phone carrier runs an ad for an “unlimited” data plan which, under the terms of service, is actually strictly limited?
In a surprising article, Meirav Furth-Matzkin and Roseanna Sommers (academic fellows at the University of Chicago Law School) expose the cognitive impact of this tension between explicit promises and fine print. Consumers, their experiments show, may feel committed to the fine print, even when it strips away explicit promises made to them. Laypeople are “intuitive formalists”: not only do they (incorrectly) believe that such conflicting fine print is binding, they also think this is how things should be! They blame themselves for not reading and knowing what’s in the boilerplate, and they are unlikely to complain or to hold the deceiving business accountable. Continue reading "Fine Print Subservience"
Miranda Perry Fleischer & Daniel Jacob Hernel, The Architecture of a Basic Income
, __ U. Chi. L. Rev.
__ (forthcoming), available at SSRN
(Mar. 27, 2019 draft).
Miranda Fleischer and Daniel Hemel have written a terrific article, The Architecture of a Basic Income, about a universal basic income, or UBI. They offer concrete policy advice grounded in philosophical priors. They successfully separate questions about fundamental policy design from questions about political packaging. Their paper should become a go-to resource for the increasing swell of interest in UBI policy.
Fleischer and Hemel give the following definition of UBI: “[A] program that ensures that all members of a polity have access to at least a minimum sum of money.” (P. 6.) They provide three philosophical perspectives that support a UBI: welfarism, founded on the premise of declining marginal utility of income; resource egalitarianism, or the idea that ex ante redistribution should support each individual’s ability to develop; and libertarianism, based on the Lockean proviso that individuals’ acquisition of property rights should leave “enough, and as good,” for others. Continue reading "The Policy Maker’s Guide to a Universal Basic Income"
- Paul R. Gugliuzza, The Supreme Court at the Bar of Patents, 95 Notre Dame L. Rev. __ (forthcoming, 2020), available at SSRN.
- Paul R. Gugliuzza, Elite Patent Law, 104 Iowa L. Rev. __ (forthcoming, 2019), available at SSRN.
Christopher Langdell’s “case” method of teaching the law has dominated the law school classroom for over a century. In this pedagogical approach, students typically read appellate opinions, and professors tease “rules” from the opinions—often in concert with the so-called Socratic method, which enlists students to aid in this abstractive process. This approach is said to make students “think like lawyers,” but what’s typically ignored in the process is the role lawyers actually play in the very cases under consideration. Instead, the working assumption is that judges are presented with arguments and facts up high from anonymous sets of ideal lawyers, who never miss a key argument or forget a relevant fact.
Of course, the actual world of lawyering is much messier, and lawyers range from the glorious and gifted to the struggling and essentially incompetent. But exactly how does this variation in attorney quality affect case outcomes? This all-too-important question has scarcely been addressed, much less answered, by systematic academic study. In an outstanding duo of articles, Paul Gugliuzza shines newfound light on the issue by examining the role of “elite” advocates in the certiorari process at the U.S. Supreme Court. Continue reading "How Elite Lawyers Shape the Law"
Tarleton Gillespie’s important book Custodians of the Internet unpacks the simultaneous impossibility and necessity of content moderation, highlighting nuance rather than answering questions. Within big companies, content moderation is treated like custodial work, like sweeping the floors—and recent revelations reinforce that the abjectness of this work seems to contaminate those who do it. The rules are made by people in positions of relative power, while their enforcement is traumatic, poorly-paid, outsourced scutwork. But for major platforms, taking out the trash—making sure the site isn’t a cesspool—is in fact their central function.
Gillespie urges us to pay attention to the differences between a content policy—which is a document that both tries to shape the reactions of various stakeholders and is shaped by them—and actual content moderation; both are vitally important. (Facebook’s newly announced “Supreme Court” is on the former side: it will make important decisions, but make them at a level of generality that will leave much day-to-day work to be done by the custodial staff.) Every provision of a content policy represents a horror story and also something that will definitely be repeated. Gillespie is heartbreakingly clear on the banality of evil at scale: “a moderator looking at hundreds of pieces of Facebook content every hour needs more specific instructions on what exactly counts as ‘sexual violence,’ so these documents provide examples like ‘To snap a bitch’s neck, make sure to apply all your pressure to the middle of her throat’—which Facebook gives a green checkmark, meaning posts like that should stay.” (P. 112.) Continue reading "The Constant Trash Collector: Platforms and the Paradoxes of Content Moderation"
States are the paradigmatic perpetrators of harms to indigenous rights, but this is changing. Increasingly, as Professor Sergio Puig points out, multinational corporations are the source of such harms, ranging from research extraction to commodification of indigenous knowledge and culture. Scholars and advocates typically turn to either domestic law or international human rights law to address these harms, and often treat international economic processes as themselves antithetical to indigenous rights. Professor Puig, however, convincingly lays out the ways that international economic law creates protections for indigenous rights, and analyzes needed enhancements for those protections. More radically, he argues that protecting indigenous rights is not contrary to economic globalization, but is core to justifying its legitimacy. International Indigenous Economic Law powerfully breaks down silos between human and indigenous rights and economic law, and will be valuable reading for scholars and advocates from these different fields.
Global economic development, Professor Puig shows, has left many indigenous peoples behind. While comprising only 5% of the world’s population, indigenous peoples make up 15% of the world’s poor, and a third of the world’s one billion “extremely poor.” Although their traditional territories encompass some of the earth’s most valuable resources, resource development more often leads to displacement and impoverishment than to indigenous prosperity. When indigenous law scholars have studied these harms, they turn to human rights law to solve them, and often treat economic development as a threat. Professor Puig, however, argues that this focus ignores valuable tools provided by economic law, including tools that are more easily enforced against non-state actors than traditional human rights instruments. International economic scholars, in contrast, largely ignore indigenous rights, or at best treat them as exceptions to international economic law. But, Professor Puig demonstrates, international economic instruments themselves have long paid attention to indigenous rights, often in surprisingly progressive ways. Continue reading "Indigenous Harms from Global Development—Can International Economic Law Provide a Cure?"
It is a truism that agency organizational charts are at least in part aspirational or idealized. The political appointees at the top lack perfect control over the career employees beneath them in the hierarchy. When all are rowing in the same direction, such agency costs matter little and may go unnoticed. But suppose they are not. What if they barely perceive themselves as in the same boat?
Right now, in many or most federal agencies, it seems that the always present gap between political and career officials is extraordinarily, perhaps unprecedentedly, wide. We see calls for and examples of outright defiance. The historical moment raises the question: Can direct disobedience by agency rank and file ever be justified?
Here, in Civil Servant Disobedience, Jennifer Nou offers an answer. Continue reading "Gandhis of the Deep State"
The National Labor Relations Act (NLRA) prohibits employers and labor organizations from coercing others in several respects. Section 8(a) (1) prohibits employers from coercing employees with respect to their right to engage in concerted activity for mutual aid and protection and to refrain from such activity. Section 8(b)(1)(A) prohibits labor organizations similarly and Section 8(b)(4) prohibits labor organizations from coercing any person with one of four prohibited objects, the most significant being forcing that person to cease doing business with another person, i.e. engage in a secondary boycott. But the NLRA does not define coercion and the National Labor Relations Board (NLRB) and courts have made mostly intuitive judgments about what is coercive. In The Content of Coercion, Michael Oswalt seeks a path to an empirical basis for analyzing whether employer or labor organization conduct is coercive. Although I disagree with several of Oswalt’s conclusions for labor law doctrine, I admire this work for its path-breaking analysis.
Oswalt observes that the NLRA began as the union-supportive Wagner Act but was counterbalanced by the employer-friendly Taft-Hartley amendments. The result was a “fundamentally hybridized statute that protects the right to freely choose [whether to organize] as it also defends the right to freely meddle [in that choice], setting the stage for a conundrum that has haunted labor law ever since: how much free speech is too much for free choice?” (P. 1592.) The answer is when speech becomes coercive because coercion overcomes rational decision making. But, lacking a definition of coercion, the NLRB has resorted to analytical shortcuts. Threats over which a party has control are coercive but predictions of what could happen, absent other unfair labor practices, are not. Picketing is coercive but hand-billing is not. Continue reading "Coercion in Labor Law: A Fresh Perspective"
Presented as the Foulsten Siefken Lecture at Washburn Law School, Professor Okediji’s article, A Tiered Approach to Traditional Knowledge, has implications beyond its focus on traditional knowledge. That’s why it is an article I like lots, as we say in these pages. Its publication in the Washburn Law Journal was accompanied by several thoughtful commentaries, which along with the principal article form a valuable symposium. I like the commentaries a lot too. But I will focus on the main course rather than the tempting side dishes.
Traditional knowledge consists of know-how passed on within local communities carrying forth understandings about healing, cooking, and other fruitful uses of the natural environment. Traditional knowledge is different from traditional cultural heritage, which consists of folklore and artifacts that convey communal interpretations about the world. A common issue raised by both traditional knowledge and traditional cultural heritage is whether their content should in some sense be owned either for the purposes of commercial exploitation or for preservation. Since the legal and political issues are different for the two categories, authors tend to narrow their attention to one or the other. Here, Professor Okediji focuses on traditional knowledge. Continue reading "Layering Property, Disseminating Knowledge"
Frank Rudy Cooper reminds us that, “We are born unable to protect ourselves, we become feeble with age, we must fear natural disasters, and our social institutions might work against us.” Vulnerability is the inescapable condition of all humankind that compels us to construct various means of mitigating that vulnerability through “resilience.” The creation and accumulation of property is one of the ways in which we buffer ourselves against our own fragile natures and the threatening forces of the world around us.
In her recent article, Professor Lua Kamál Yuille confronts vulnerability and property-centered modes of resilience in a compelling reframing of the modern street gang as a creator of “identity property.” (P. 467.)
We know that gangs fill institutional and societal gaps, replacing family, school, and work. Yuille, however, explores this gap-filling role through the lens of Martha Albertson Fineman’s “vulnerability theory.” She situates the gang’s creation and maintenance of its “identity property” firmly in the milieu of “resilience”—“the accumulation of sufficient resources to allow individuals to confront, adapt to, ameliorate, compensate for, or contain vulnerability.” (P. 475.) Continue reading "Should Government Compensate Street Gangs for the Loss of “Identity Property?”"