Yearly Archives: 2020
Oct 12, 2020 Eric J. MillerCriminal Law
We are in the midst of a massive national protest, comprised itself of a wave of local protests, against the very institution of the police, or at least the widespread overuse of that institution to engage in actions beyond the crime-fighting competence that they claim for themselves. The distinction matters, because if the goal is not to abolish the police completely, but to defund and refocus their activities, some type of police reform is still necessary. Our attitude to the police, and our ideas about local and national means to control of the police, will profoundly shape what sort of reform we endorse. Rachel Moran’s recent article, Contesting Police Credibility, argues that law enforcement oversight requires robust institutional measures to challenge, resist, and hold accountable the police when they inflict harm upon the public.
Moran reveals that accountability is not transparency. Transparency might demand that the police are open and public about the wrongdoers in their midst, and disseminate records of police misconduct. Accountability requires an adequate process by which to hold the police answerable when departments or individual officers are called out for wrongdoing. Professor Moran’s focus is the lack of effective internal and external mechanisms of accountability. This lack of accountability, when combined with evidence of police wrongdoing, ought to subvert the presumption of reliability that the criminal process—judges, prosecutors, and juries—extend to the police as public officials. This presumption ensures that when the police are challenged on the streets or in the courthouse, the criminal justice process defers to the police as providing the only credible version of events. Continue reading "The Shield Behind The Badge"
Oct 9, 2020 Robin J. EffronCourts Law
Amanda M. Rose,
Classaction.gov, __
U. Chi. L. Rev. __ (forthcoming 2020), available at
SSRN.
It is easier than ever to notify class members of a proposed settlement and for class members to file claims. So why are participation rates so low in consumer class action settlements? This is one of the most important puzzles in modern complex litigation. With billions of dollars spent on class action litigation, a 9% participation rate in consumer class actions seems a dismal return on that collective investment, even accounting for the deterrent or quasi-punitive functions that a large settlement represents for the defendants. In her new essay, Amanda Rose offers a solution to this and other related problems of class action administration and transparency—have the federal government develop and administer a website, classaction.gov.
Classaction.gov is an intriguing proposal that would centralize and standardize certain administrative aspects of class action litigation and settlement (notice, informational websites, claims processing, and claims distribution) that she identifies as barriers to higher class participation rates as well as to the overall transparency of individual actions and class action litigation. Rose’s key insight is that broader and cheaper notice are insufficient to induce broader class participation, even when the average class recovery is a non-trivial sum. Rather, consumers must absorb the costs of reading and understanding the notice and assuring themselves that it is not fraudulent. A federally sponsored website would leverage Americans’ trust in the federal government. The use of a common government database would further streamline both the notice and claims processes. Continue reading "#Getyour$$now!: A New Plan for Class Action Notice and Administration"
Oct 8, 2020 Eboni NelsonContracts
Inherent in contractual defenses such as infancy and mental incapacity is the goal of protection. In the case of infancy, contract law seeks to protect underage minors from themselves and from opportunistic adults who may attempt to take advantage of their lack of experience and judgment when entering into contracts. Similar protection goals underlie the contractual defense of mental incapacity whereby individuals with a mental disability or illness may avoid a contract due to their inability to understand the transaction or act reasonably with regards to it. The defense is intended to benefit those with mental disabilities. However, as currently conceived, it may actually do more harm than good. Utilizing the Americans with Disabilities Act (“ADA”) and the Disability Rights Movement (“DRM”) as her guides, Dean Sean Scott explores this important issue in her recent thought-provoking article, Contractual Incapacity and the Americans with Disabilities Act.
Dean Scott begins her article with a discussion of Renchard v. Prince William Marine Sales, Inc. wherein a buyer of a yacht sought to avoid the purchase agreement and other contracts with the seller due to his alleged physical and mental disabilities. Although the buyer unsuccessfully attempted to amend his compliant to allege discrimination under the ADA, Dean Scott hypothesizes that sellers may impose heightened scrutiny and screening and avoid making contracts with certain individuals based on their fear of contract rescission or avoidance due to courts’ current application of the mental incapacity doctrine. In light of this possibility and the conflicting language and principles associated with contractual incapacity as compared to the ADA and the DRM, she argues “that the mental incapacity doctrine should yield to the DRM and the ADA” (P. 257) and that the doctrine “should be limited to people with mental disabilities who were subject to a plenary guardianship when they entered into the contract at issue.” (P. 255.) Continue reading "Heeding the Call of Those Harmed by Contractual Incapacity"
Oct 7, 2020 Eli NachmanyConstitutional Law
Ilan Wurman,
Nondelegation at the Founding, 130
Yale L.J. __ (forthcoming 2020), available at
SSRN.
A riveting originalist debate over the nondelegation doctrine is currently playing out in the legal academy. The nondelegation principle suggests, in part, that “Congress cannot delegate its legislative power to the executive.” In their recent article Delegation at the Founding, Professors Julian Mortenson and Nicholas Bagley argue that the framers originally understood the Constitution to permit such delegation. In a forthcoming essay in the Yale Law Journal, aptly titled Nondelegation at the Founding, Professor Ilan Wurman takes the opposite position.
As a policy matter, the answer to the question whether Congress can delegate some legislative power to the executive branch could have a profound effect on the way our federal government regulates various aspects of American life. Justice Kagan has warned that a robust application of the doctrine could lead to the conclusion that “most of Government is unconstitutional,” including the promulgation and enforcement of many consequential environmental, labor, and other regulations. Some proponents of the nondelegation doctrine reply that these and other regulations involve difficult policy choices that—in the interest of democratic accountability and the preservation of liberty—Congress should not be able to pass off to the executive branch. Continue reading "To Delegate or Not to Delegate: Celebrating a Scholarly Exchange About Originalism and the Nondelegation Doctrine"
Oct 6, 2020 Margaret KwokaAdministrative Law
Deepa Varadarajan,
Business Secrecy Expansion and FOIA, 68
UCLA Law Review __ (forthcoming, 2021), available at
SSRN.
The breadth of exemptions to mandatory disclosure of government records under the Freedom of Information Act (FOIA) has long been criticized. The exemptions for national security, the agency privileges, and privacy are among those that have rightly come under fire. Even Congress has tried to rein in some of the most sweeping of these exemptions with recent amendments to the statute itself, capping the applicability of one exemption, the deliberative process privilege, to records less than twenty-five years old. But FOIA usually stands alone. Rarely is there an analogous body of law to learn from or to which it compares.
Deepa Varadarajan’s terrific forthcoming article, Business Secrecy Expansion and FOIA, demonstrates that FOIA’s trade secrets exemption is an exception. Varadarajan traces the history of trade secrets litigation back to its common law origins, documenting its steadfast march toward an ever-broader understanding of what constitutes a trade secret. Now, she explains, trade secrecy law protects any information of commercial value not generally known in the industry and which the owner has taken measures to protect. Continue reading "How Commercial Secrets Become Government"
Oct 5, 2020 Charles A. SullivanWork Law
Blair Druhan Bullock,
Uncovering Harassment Retaliation, __
Ala. L. Rev. __ (forthcoming, 2020), available at
SSRN.
Articles sometimes do an important service by exposing what seems obvious, but only in retrospect. Blair Druhan Bullock’s Uncovering Harassment Retaliation, forthcoming in the Alabama Law Review, does a great job of surfacing an issue that had previously received little attention in the law journals.
It’s not news that women have been, at least before #MeToo and probably still, reluctant to report harassment. Neither is it news that one reason is their fears of retaliation for invoking the employer remedial processes that have been put in place in the wake of the Faragher/Ellerth structure for employer liability. And it will come as no surprise that the courts have been remarkably unreceptive to claims of victims of sex harassment that delaying a report until the situation became unbearable was reasonable because of fears of retaliation. What is needed, and what Professor Bullock provides in Uncovering Harassment Retaliation, is an empirical basis for believing such fears are well grounded and not (as one might think from reading court opinions) paranoiac. Continue reading "What to Do About Well-Grounded Fears?"
Oct 2, 2020 David HortonTrusts & Estates
Shelly Kreiczer-Levy,
Big Data and the Modern Family, 2019
Wisc. L. Rev. 349 (2019), available at
SSRN.
In Big Data and the Modern Family, Shelly Kreiczer-Levy kicks the tires on a provocative idea: using big data to “personalize” the rules of intestate succession. Recently, scholars have suggested that the same miraculous technology that permits big retailers to predict their customers’ purchasing needs to customize the law. For example, in the first extended treatment of the topic, Ariel Porat and Lior Strahilevitz suggest that the government can exploit big data to abandon the conventional one-size-fits-all approach to default rules and instead tailor background principles to individual preferences. Porat and Strahilevitz’s marquee example is intestacy. They note that empirical studies reveal that married fathers are more likely than married mothers to leave their entire estate to their spouse. Thus, they argue that an intestate system that varied with the decedent’s gender would be more likely to carry out his or her intent. But why stop there? Porat and Strahilevitz claim that intestacy statutes could also vary based on the decedent’s job, wealth, health, length of marriage, and age of children. In fact, using an algorithm, a probate court could “determine how an intestate’s estate should be allocated based on an analysis of his consumer behavior during his lifetime.”
Enter Kreiczer-Levy. Her thoughtful article begins by arguing that the rules of intestate succession are outdated. Indeed, as she explains, these principles “are notorious for privileging the nuclear family, to the exclusion of modern forms of associations and relationships.” In turn, Kreiczer-Levy observes that this makes personalized intestacy intriguing. In sharp contrast to the bright lines and rigid barriers of current law, a bespoke regime could effectuate an intestate decedent’s wish to leave assets to a lover, a best friend, or a young person who was treated like a full-blooded child but never adopted. Continue reading "Personalized Intestacy?"
Oct 1, 2020 Rebecca TushnetTechnology Law
Which Western institutions aid and abet Chinese censorship? Major Internet companies probably come immediately to mind. In Peering down the Memory Hole: Censorship, Digitization, and the Fragility of Our Knowledge Base, Glenn Tiffert highlights an unexpected set of additional accomplices: scholarly archival platforms.
Tiffert shows that digitization makes it possible for censorship to disappear into the apparently limitless, but silently curated, torrents of information now available—adding a valuable example to Zeynep Tufekci’s catalog of ways that information is distorted online. He explains how “the crude artisanal and industrial forms of publication and censorship familiar to us from centuries past” may shortly give way to “an individuated, dynamic model of information control powered by adaptive algorithms that operate in ways even their creators struggle to understand.” Continue reading "Invisible Holes in History"
Sep 30, 2020 Steve GoldLexEnvironmental Law
All it took was a frequently lethal, highly infectious, globally distributed virus. In anxious self-protection, Homo sapiens drastically curtailed the planet-altering behaviors we call “economic activity.” The non-human parts of our ecosystems responded. Above cities, toxic and murky air cleared. Fossil fuel extraction sputtered; greenhouse gas emissions slowed. Wild animals returned to places from which they had long been exiled. Birds singing for mates vied more with each other and less with the drone of humanity. Even Earth’s own seismic rumbling sounded more distinctly against a diminished background of people’s percussive pounding.
The pandemic pause accomplished, however briefly, results that have eluded all the world’s environmental policy makers. These results reminded us just how tight the correlation is between the human economy and human environmental impact–and, by negative implication, exploded the myth that “sustainability” can be a pragmatic and achievable goal of environmental law. The Earth has shown that to sustain normal levels of human population and economic growth, ecosystems must absorb massive, deeply disruptive, perturbations. In Letting Go of Stability, Professor Robert Fischman rejects the sustainability shibboleth and thoughtfully explores the potential of resilience, rather than sustainability, to provide a conceptual anchor for environmental law in the decades ahead. Continue reading "Is Resilience Resilient?"
Sep 29, 2020 Charlotte CraneTax Law
Level-headed approaches are rare in discussions of how the administration of tax law should fit into the larger body of administrative law. Alice Abreu and Richard Greenstein’s Tax: Different, Not Exceptional is one of those rare exceptions. All too often, advocates have portrayed the question as having an all or nothing answer, coded as whether tax is “exceptional.” If yes, then the norms of administrative law don’t apply; if no, then they all apply. (And, for many, if these norms all apply, the vast bulk of the work product of the Treasury and the IRS is tainted and should be questioned by the courts.) Abreu and Greenstein persuasively point out that this approach is simply useless.
Careful observers should always have appreciated that neither position is supported by the existing statutory framework. For some aspects of tax administration, there are exceptions in the Administrative Procedure Act itself, and additional exceptions are provided in other titles of the United States Code. But as Abreu and Greenstein point out with reference to Sorites Paradox, a heap of exceptions is often only just that, a heap of discrete exceptions. Even if each of those exceptions is well-founded, they do not necessarily mean anything about the other items that could be removed from the pile, or even about the nature of the pile itself. The questions that remain, given this reality, relate to how these discrete exceptions should be interpreted, and whether these exceptions have any implications for items not covered by their specifics. Tax: Different should go a long way toward establishing this approach to answering these administrative law questions. Continue reading "Situating the Tax Law: Exceptions, Not Exceptionalism"
