Yearly Archives: 2021
Oct 6, 2021 Steve VladeckCourts Law
Jonathan R. Siegel,
Habeas, History, and Hermeneutics, (August 6, 2021), available in draft at
SSRN.
Habeas is hard. Even among law professors—indeed, even among law professors whose teaching and writing includes habeas—the statutes and doctrines governing collateral post-conviction review in the federal courts have become so complicated and convoluted that there is a temptation to skip it in the Federal Courts syllabus (and, I dare say, to gloss over any paper the title of which includes the h-word). Whether you are a habeas scholar or not, though, you should make an exception for Jonathan Siegel’s forthcoming essay.
Siegel’s paper centers on Edwards v. Vannoy—by far the Supreme Court’s most important habeas decision from its October 2020 Term—and explains why even those of us who have paid attention to it have missed what really matters. In the process, we have missed ominous portents of the future of the current Court’s approach to post-conviction habeas—and of how the current Supreme Court decontextualizes older rulings and statutes to rewrite history and to free itself from the strictures that proper understandings would impose. Siegel’s paper is equal parts trenchant and terrifying, and it is a must-read even for those who do not know, to this point in the review, what Edwards was actually about. Continue reading "Hiding Behind Habeas’s Hardness"
Oct 5, 2021 Christine AbelyCorporate Law
Peter Molk and D. Daniel Sokol’s recent article The Challenges of Nonprofit Governance addresses a less-examined area of the governance literature: namely, the governance of nonprofit organizations. As the authors note, nonprofit governance failures have made the news in the past few years, as with, for example, the allegations against the National Rifle Association for self-dealing and fraud, or those against the University of Southern California related to sexual assault, discrimination, and corrupt admissions dealings. This article fills a notable gap in the governance literature by addressing important differences between corporate and nonprofit governance mechanisms; discussing currently available methods to monitor nonprofit activities, as well as the shortcomings of those approaches; and proposing solutions to promote more robust oversight and to better safeguard the interests of the nonprofit stakeholders and beneficiaries, as well as those of the general public.
Molk and Sokol identify several issues inherent in and unique to nonprofit governance. State attorneys general are usually tasked with nonprofit oversight. The authors note that such monitoring is often hampered by a lack of resources, as well as a dearth of required financial disclosures that could be used to evaluate nonprofits’ fiscal health. The authors attribute these shortcomings to the structural flaw that nonprofits may operate in numerous states, but that the mission of an individual state attorney general centers primarily around the protection of citizens of only its own state. As such, a problem of the commons arises whereby the resulting observed level of enforcement is less than would be optimal, but no one state attorney general has sufficient incentive to increase enforcement to detect wrongdoing outside of its own jurisdiction. Continue reading "The Governance of Nonprofit Organizations"
Oct 4, 2021 Shawn BayernContracts
Babette Boliek,
Upgrading Unconscionability: A Common Law Ally for a Digital World, __
Md. L. Rev. __ (forthcoming, 2021), available at
SSRN.
Professor Babette Boliek makes two important contributions in Upgrading Unconscionability: A Common Law Ally for a Digital World before even reaching the article’s normative argument.
First, the article challenges what has become a surprisingly prevalent bit of supposed wisdom among commentators on contract law: that the doctrine of unconscionability barely exists and that nobody should take it seriously—or, as Professor Boliek puts it, that “the application of unconscionability is so rare that it is the last refuge of fools.” The pessimistic view of unconscionability’s role may confuse a paucity of rules about unconscionability with a paucity of cases (or more generally with a lack of importance of the doctrine). It is true that unconscionability is a vague doctrine. Even its statutory formulations in US law tend not to supply clear definitions; for example, the Uniform Commercial Code provides general rules that let courts respond to “unconscionable” contracts (see U.C.C. § 2-302), but never defines the term. But while that may make it hard to apply unconscionability on a Contracts exam, it doesn’t mean the doctrine of unconscionability isn’t important. Indeed, if the purpose of the rule is simply to give courts flexibility to prevent the worst abuses of contract-related processes or the most oppressive contracting outcomes, the doctrine needn’t be specific, and pinning it down too tightly may limit the doctrine’s ability to respond flexibly to abuses. Continue reading "The Exaggerated Rumors of the Death of Unconscionability"
Oct 1, 2021 Wendy Anne BachLexPoverty Law
Just a quick warning—Armando Lara-Millán’s Redistributing the Poor: Jails, Hospitals, and the Crisis of Law and Fiscal Austerity is a depressing read, particularly, for those of us who have, at some time in our poverty law careers, litigated class actions. It’s not as if we did not know, when, for example, negotiating compliance benchmarks for institutional defendants (jails, public housing agencies, welfare departments, public hospitals…), either that the purpose of those benchmarks could be easily evaded or that our lawsuit might result in pulling resources away from another need. But knowing this abstractly, and earnestly planning against it, is one thing and reading a book that exquisitely describes how legal pressure often does little more than redistribute pain, is an entirely another.
Lara-Millán is a sociologist. In Redistributing the Poor, he challenges fundamental narratives at the heart of a significant branch of socio-legal scholarship. He suggests that the overarching recent U.S. historical narrative that many of us assume is true–that we are seeing the results of “overinvestment in criminal justice and underinvestment in public health”—fundamentally misunderstands the way the United States governs the poor. “In short, the idea of redistributing the poor draws attention to how states agencies circulate people between different institutional spaces in such a way that generates revenue for some agencies, cuts costs for others, and projects illusions that services have been legally rendered.” (P. vii.) Continue reading "Legal Compliance, Categorization and the Disappearing of Suffering"
Sep 30, 2021 Eli NachmanyAdministrative Law
This summer, Dædalus, the Journal of the American Academy of the Arts and Sciences, turned its focus to public administration and the regulatory state. Mark Tushnet served as the Summer 2021 Dædalus Issue’s Guest Editor, compiling essays from leading lights of administrative law like Cass Sunstein, Aaron Nielson, and Judge Neomi Rao. Professor Nielson’s piece, Deconstruction (Not Destruction), is the latest work in a line of scholarly literature that acknowledges the growing libertarian discomfort with perceived excesses of administrative governance (perhaps best embodied in the scholarship of Professor Philip Hamburger and the jurisprudence of Justice Neil Gorsuch) and proposes an alternative path forward for regulatory state skeptics. Some other such works include Professor Jeff Pojanowski’s 2020 Harvard Law Review article Neoclassical Administrative Law and Professors Sunstein and Adrian Vermeule’s new book Law and Leviathan.
Conceding at the beginning of the essay that “[t]he Supreme Court is not about to declare most of the federal government unconstitutional,” Professor Nielson is nevertheless sympathetic to the idea that today’s administrative-centric federal model presents serious issues. Professor Nielson’s thesis proceeds from the premise that, in the context of administrative law, commentators typically associate the word “deconstruction” with former White House Chief Strategist Stephen Bannon’s assertion that the Trump Administration sought to “deconstruct”—read: destroy—the administrative state. Professor Nielson takes a step back and reinterprets deconstruction in the “more technical sense of examining the administrative state to identify where theory and reality diverge and what can be done to fix it.” This reconsideration, Professor Nielson argues, is long overdue; to the extent that the federal government has constructed the administrative state over the last century or so, Professor Nielson proposes deconstruction as a way of rigorously interrogating the theories and assumptions underlying said efforts. Continue reading "A Second Look at the Administrative State: Deconstruction as Reassessment"
Sep 29, 2021 Noah ZatzWork Law
Amidst summer 2020’s momentous uprisings, a terminological tempest briefly arose over what counted as a “strike.” In the wake of a police attack on Jacob Blake in Kenosha, WI, the NBA’s Milwaukee Bucks, followed quickly by a host of professional athletes, collectively refused to work in solidarity with Black Lives Matter and in protest of anti-Black state violence. Many commentators eschewed the word “strike” on the ground that the actions, like Colin Kaepernick’s and other athletes’ earlier national anthem protests, were “political” in nature, not focused on the “economic” relationship between the workers and their own employer. That dispute raised fundamental questions about the nature of work and the function of worker organizing, questions addressed more generally by Diana S. Reddy’s outstanding recent Yale Law Journal Forum essay ‘There Is No Such Thing as an Illegal Strike’: Reconceptualizing the Strike in Law and Political Economy.
Reddy’s essay provides a magnificent and generative tour through the fraught relationship between the “economic” and the “political” in labor law via the topic of strikes. This wide-ranging and deep piece of scholarship briskly covers and knits together an impressive span of labor history, labor law, and social theory. It should draw the attention not only of labor law scholars but all those interested in the emergent Law and Political Economy movement. Continue reading "Striking Labor Law’s Economic/Political Divide"
Sep 28, 2021 David HortonTrusts & Estates
One of my favorite forms of academic writing is the Note or Comment. Students have an uncanny ability to make the most of issues that professors might overlook.
A case in point is Francesca Torres’s Note, Electronic Wills: COVID-19 Relief or Inevitable Trouble For California? Torres, a rising 3L at McGeorge, skillfully tells the story of California’s failed electronic will statute, Assembly Bill 1667. Continue reading "The Long, Tortured History of California’s Nonexistent Electronic Will Statute"
Sep 27, 2021 Cristina TilleyTorts
Among legal academics, the intentional infliction of emotional distress tort is having a moment. Long derided as the “redheaded stepchild” of personal injury law, IIED is being rediscovered by scholars seeking new interventions against social ills like workplace oppression and ethnoviolence. Tasnim Motala is the latest writer to explore the promise of the IIED tort, this time as a response to racist speech. In Words Still Wound: IIED & Evolving Attitudes toward Racist Speech, Motala makes three crucial moves: she concretizes the injury of racial insult; she documents the limits of legislative efforts to stigmatize and deter this speech; and she revisits the intellectual history of the tort to suggest its capacity to redress speech-inflicted wounds. Some of these moves work better than others, but in the end, Motala has advanced an important conversation about private law’s power to change social norms.
From its inception in the early twentieth century, lawyers and judges have been suspicious about IIED, often because they have resisted the idea that emotional injuries are sufficiently “real” to merit the law’s protection. This suspicion has been especially intense where the claimed injury arises from a defendant’s use of the legal right and cultural privilege to express personal opinions. Motala meets this objection head-on, showing how racial epithets rupture both the individual and society. She draws on extensive interdisciplinary literature showing that racial insults in person-to-person encounters inflict harms so widely recognized that psychologists have medicalized them as “race-based trauma.” (P. 123.) This trauma has been empirically demonstrated to cause “anxiety, hypervigilance to threat, [and] lack of hopefulness for [the] future,” often leading to depression and substance abuse. (P. 123-24.) Leveraging tort’s simultaneous concern with private rights and social concerns, Motala argues that when these injuries are unredressed, they corrode both individual well-being and the social trust on which economic and democratic structures rely. (P. 120, 123.) Notably, Motala does not try to placate critics who insist that only physiological injury counts for tort liability. She subtly rejects the terms on which these critics want to joust, instead urging readers that tort’s concerns go beyond the tangible alone. Continue reading "Torts That Heal Words That Wound"
Sep 24, 2021 Stacy-Ann ElvyTechnology Law
Nicole McConlogue,
Discrimination on Wheels: How Big Data Uses License Plate Surveillance to Put the Brakes on Disadvantaged Drivers, 18
Stan. J. Civ. Rts. & Civ. Lib. __ (forthcoming, 2022), available at
SSRN.
Over the last decade the use of automated license plate reader (ALPR) technology has increased significantly.Several states have adopted legislation regulating the use of ALPRs and associated data. At the federal level, bills have been proposed to address law enforcement agencies’ use of ALPRs and companies’ use of automated algorithmic decision-making systems. There has been significant debate about the privacy and constitutional implications of government actors’ use of ALPR technology and ALPR data.
However, as Professor Nicole McConlogue observes in her excellent forthcoming article, Discrimination on Wheels: How Big Data Uses License Plate Surveillance to Put the Brakes on Disadvantaged Drivers, less attention has been paid to corporate actors and the way their use of ALPRs connects with their use of automated algorithmic decision-making. Corporate entities are increasingly using data collected by ALPRs together with predictive analytics programs to determine the types of opportunities that consumers receive. Professor McConlogue makes an important contribution to scholarship in the consumer and technology law fields by exposing the relationship between ALPR technology and automated algorithmic decision-making in the automobile lending industry. Her work links what are often distinct discussions of surveillance technologies and automated decision-making, as used by the private sector in consumer transactions, thus bridging the fields of consumer law and technology law. Continue reading "Automated Algorithmic Decision-Making Systems and ALPRs in Consumer Lending Transactions"
Sep 23, 2021 Leigh OsofskyTax Law
Leslie Book,
Tax Administration and Racial Justice: The Illegal Denial of Tax Based Pandemic Relief to the Nation’s Incarcerated Population, 72
S. Carolina L. Rev. __ (2021), available at
SSRN.
In Tax Administration and Racial Justice: The Illegal Denial of Tax Based Pandemic Relief to the Nation’s Incarcerated Population, Leslie Book tells the remarkable story of the Coronavirus Aid, Relief, and Economic Security (CARES) Act emergency relief payments and the incarcerated population. In addition to having numerous plot twists and turns, the story underscores an important, underexamined issue: when the government administers the law, it imposes burdens (or frictions) on the public. These burdens may be borne disproportionately by different groups, including along racial dimensions. Anyone interested in agencies, tax administration, or race and the law would benefit from reading Book’s paper.
As Book describes, when Congress passed the CARES Act, it authorized the IRS to pay out economic relief payments of $1,200 (for adults) and $500 (for dependent children) as “rapidly as possible.” The IRS dutifully did so, including by making approximately $100 million in payments to federal, state, and local prisoners by April 2020. However, the IRS then inexplicably reversed course, deciding that prisoners were not eligible to receive the economic relief payments, but not providing any basis or explanation for its reversal. The IRS tried to recover the payments it had previously made to prisoners as allegedly erroneous and issued a Frequently Asked Question (FAQ) on the IRS website indicating that any incarcerated individual who had received a payment needed to return it to the IRS. Leiff Cabraser, a public interest law firm, brought a class action lawsuit on behalf of incarcerated individuals and eventually won in district court. The court ordered the IRS to change its position regarding prisoners’ entitlement to the payments and ensure that eligible, incarcerated individuals received their payments. Notwithstanding this court victory for incarcerated individuals, difficulties in the IRS’s administrative process prevented many from receiving the payments in 2020, undermining the IRS’s ability to meet Congress’s mandate of making the payments “as rapidly as possible.” Continue reading "Racialized Frictions in Tax Administration"
