Monthly Archives: July 2022
Jul 18, 2022 Martin J. KatzWork Law
D’andra Millsap Shu,
The Coming Causation Revolution in Employment Discrimination Litigation, __
Cardozo L. Rev. __ (forthcoming 2022), available at
SSRN.
Two simple words, “because of,” are at the heart of most anti-discrimination statutes, which preclude employers from taking adverse action because of a protected characteristic. Two simple words. Yet, the myriad attempts by courts and commentators to make sense of these two simple words has appropriately been referred to as a “morass,” a “jungle,” and a “quagmire.”
There have been two battlegrounds. First is the question of which causal standard applies. Does the phrase refer to “but for” causation? “Motivating factor” causation? “Primary” or “predominate” causation? “Substantial factor” causation? “Sole” causation? Some combination of these? Or something else? Second–and the focus of Professor Shu’s article, The Coming Causation Revolution in Employment Discrimination Litigation–is that even when courts seem to agree on a standard, such as “but for,” they seem unable to agree on what that standard means. Now that the Court appears to have coalesced around the idea that “because of” generally refers to “but for” causation (even if some scholars might still argue for other standards), Professor Shu convincingly argues that the second battleground – over the meaning of “but for” – is the most important one. Continue reading "Has the Meaning of “Because of” Finally been Solved?"
Jul 15, 2022 Browne LewisTrusts & Estates
Editor’s Note: With profound sadness, we share the untimely passing of Dean Browne C. Lewis of the North Carolina Central University School of Law on June 2, 2022. We extend our heartfelt condolences to Dean Lewis’s family, colleagues, and students. Dean Lewis submitted this review shortly before her death, so it was edited and published posthumously.
The probate system is designed to ensure that the decedent’s wealth is transferred to family members. Common law dictates that the probate system gives preference to families. The probate system has not kept up with the ever evolving definition of family. In The Dilemma of the Transgender Heir, Professor Carla Spivack discusses yet another complication that may arise because of the law’s tendency to see the world through a binary lens that requires people to identify as male or female. The problem identified by the author is how the law should treat a bequest when a person transitions to a gender different from the one mentioned in an executed testamentary instrument. For example, the testator may leave a bequest to a son who has transitioned to a daughter at the testator’s death. Does the gift lapse because the person identified in the testamentary instrument as male is now female? The author looks to several legal doctrines to determine whether the law provides a way to save the gift for a son who has become a daughter.
If an ambiguity exists in a will, the court will admit extrinsic evidence to clarify the testator’s intent. Once that intent is determined, the court can distribute the decedent’s property accordingly. In the case of a transgender heir, the ambiguity would be latent because the confusion only occurs when the executor discovers that the heir has transitioned to another gender. Under the common law, a court would allow the executor to present extrinsic evidence showing that the testator would have wanted the person to receive the property regardless of the person’s gender identity. The author, however, rejects the ambiguity-rule approach to resolving the dilemma of the transgender heir because she argues that the will does not truly contain an ambiguity. This is not a typical case of ambiguity in which the testator refers to an heir by the wrong name. Here, the information contained in the will is correct, even though the person named in the will no longer exists in the original form. Continue reading "Becoming"
Jul 14, 2022 Alexandra LahavTorts
There are two strands of tort scholarship. One group, whom I will call “The Philosophers”, seeks to understand tort as an internal system. A second group, “The Institutionalists”, seek to understand tort law as part of the larger legal system that governs harms, in comparison to administrative agencies, criminal prosecutions, and bankruptcy. Lindsey Simon’s article, Bankruptcy Grifters, is an important contribution to this latter strand of scholarship.
Relying on meticulously researched case studies and a deep knowledge of bankruptcy law, the piece clearly explains the difficult and complex use of bankruptcy to resolve mass torts (a feat in itself) and sets an agenda for further research and policy proposals. It should be required reading for torts scholars who don’t much understand how bankruptcy has emerged as an alternative to the tort system and what this development means for the tort system, particularly mass torts which threaten to eclipse all of tort law by sheer numbers. Continue reading "Mass Tort Endgames"
Jul 13, 2022 James GrimmelmannTechnology Law
Gregory Klass,
How to Interpret a Vending Machine: Smart Contracts and Contract Law, 7
Geo. L. Tech. Rev. __ (forthcoming, 2022), available at
SSRN.
Gregory Klass’s How to Interpret a Vending Machine: Smart Contracts and Contract Law is an extraordinarily incisive legal analysis of smart contracts. While others have written insightfully about the relationship of smart contracts and legal contracts, Klass utterly nails a central conceptual point: When smart contracts are embedded in legal relationships, they stand in need of interpretation.
Nick Szabo introduced smart contracts in the 1990s as contracts “embedded in the world” such that breach is expensive or impossible. Whereas traditional contracts rely on the legal system (backed by threat of force) to enforce their terms, smart contracts use hardware and software to automatically enforce their terms. Szabo gives the example of a “humble vending machine” that takes in coins and dispenses products, and then argues that software and cryptography make it possible to craft much more sophisticated agreements than simple cash sales.
Seen this way, smart contracts are not contracts but mechanisms, and hence the vending-machine analogy is apt. What is important is not what they mean but what they do. Klass shows that even mechanisms need interpretation. Through a sequence of entertaining hypos, he demonstrates that courts confronting cases involving mechanisms embedded in contracts must use the methods of legal interpretation to reason about what those mechanisms are understood to do, just as they reason about what contractual text is understood to do. Continue reading "The Humble Vending Machine"
Jul 12, 2022 Neil H. BuchananTax Law
Do the goals of fairness, equity, social justice, or other explicitly normative approaches to analyzing law and policy have any place at all in modern scholarship? Some scholars, especially those who approach the world from an orthodox economic viewpoint, have tended to reject categorically the very idea that such concepts should supplant their purportedly hard-headed analysis–an analysis that they hold out as being superior to supposedly “soft,” “sentimental,” “moralistic,” or “subjective” anti-orthodox approaches. Increasingly, however, equity-based analysis has at least been permitted as a component of most legal scholarly discussions. That itself is progress.
Even so, there continues to be a presumed distinction between self-styled “objective” approaches and the approaches of those who focus on inequality, domination, and other such fundamental questions of social justice. The familiar “equity-efficiency tradeoff” encapsulates this tension, the notion being that there are two distinct analytical categories that are not merely separate but in opposition to each other–-that is, the tradeoff says that we must sacrifice some efficiency if we desire greater equity, or instead that we must agree to doom more people to poverty if we seek to maximize efficiency. But is there a better approach? Happily yes, as Taxation and Law and Political Economy, by Professors Bearer-Friend, Glogower, Jurow Kleiman, and Wallace, clearly suggests. Continue reading "Bringing Law and Policy Back from the Black Hole of Efficiency-Based Analysis: Another Important Step Toward Refocusing on Justice"
Jul 11, 2022 Carol Necole BrownProperty
Noah M. Kazis,
Fair Housing, Unfair Housing, __
Wash. U. L. R. Online (forthcoming), available at
SSRN.
Walking across the parking lot from my law school to the annex building where my office is temporarily relocated, I spotted a trusted and dear colleague. She and I hugged and soon started talking about a sore topic for me, how my 1L property course was coming along. This is the second year I have been relegated to teaching my once four credit course as a two credit course. Just another one of the tragic consequences of Covid, I guess.
Only having two credits has meant that the discussion of many property topics, including housing law, has been truncated. In frustration, I uttered the words, “I’m just going to KISS it.” Her eyes widened as she inquired, “KISS it, what is that?” I replied, “I’m Going to Keep It Simple Stupid.” We looked at one another knowingly, we both laughed, and continued on our separate ways to our offices.
Soon thereafter, I came across Noah Kazis’ article, Fair Housing, Unfair Housing, in which he makes an insightful contribution to the seemingly intractable problem of unfair housing practices. Kazis’ thesis confirmed my weeks earlier conversation with my colleague; sometimes the best solution is found in keeping it simple. Continue reading "“KISS” It and Disrupt Unfair Housing"
Jul 8, 2022 Juliet StumpfLexImmigration
In immigration law, where the apex penalty is deportation, proportionality is absent. We tend to think of proportionality in punishment as requiring that the severity of a penalty track the severity of the offense, minus mitigating circumstances. The coin of the realm in immigration law is immigration status, so mitigating circumstances would in theory focus on the noncitizen’s particular qualities, such as length of residence in and ties to the United States. In Immigration Law’s Arbitrariness Problem, published in the Columbia Law Review, Shalini Bhargava Ray argues for sanctions better tailored to these considerations.
I like this article (lots) because for one thing, it challenges my own scholarship advocating for proportionality in immigration law and centralizing deportation as the sole immigration penalty. (I’m not alone. Angela Banks, Mike Wishnie, Maureen Sweeney, and Jason Cade (and others) have also proposed proportionality in deportation, and they’re no slouches). The article’s first contribution is to challenge the notion that proportionality is a fix for deportation’s ills. Proportionality proponents tend to point to the criminal justice system’s employment of proportionality in sentencing but, as Bhargava Ray observes, criminal law is replete with “overpunishment and overcriminalization” and so not a model of proportionality as path to justice. Besides, courts tend to hate the proportionality argument, which is why it tends to fail. Continue reading "Shining a Light on Shadow Sanctions"
Jul 7, 2022 W. Bradley WendelLegal Profession
Scott Cummings’s new book, An Equal Place: Lawyers in the Struggle for Los Angeles, tells five different stories illustrating the role of law and lawyers in securing goods such as economic justice, environmental protection, and the rights of immigrants, in the city of Los Angeles in the years following the 1992 riots. The book is organized around chapters providing comprehensive histories of these campaigns: Reforming sweatshop labor in the garment industry; contesting anti-solicitation ordinances that restricted the ability of mostly Latino day laborers to obtain employment; ensuring living-wage jobs in the wake of gentrification and community redevelopment projects; blocking the development of a Wal-Mart supercenter that would have undermined unionization in the grocery industry; and improving labor and environmental conditions for truck drivers at the Ports of Los Angeles and Long Beach.
In his most recent Netflix special, all-time-great comedian Chris Rock observes: “[W]hen you’re in a band, you have roles that you play in the band. Sometimes, you sing lead. And sometimes, you’re on tambourine. And if you’re on tambourine, play it right. Play it right. Play it with a . . . smile, because no one wants to see a mad tambourine player.” Rock uses this as an extended metaphor for relationships, but at the risk of wrenching it too far out of context, the comparison can also apply to the role of public interest lawyers in social movements. Some lawyers may aspire to be the lead singer, but the interests of justice may be better served by lawyers playing a supporting role, and playing it well. Continue reading "Lawyers Playing Tambourine"
Jul 7, 2022 W. Bradley WendelLegal Profession
Scott Cummings’s new book, An Equal Place: Lawyers in the Struggle for Los Angeles, tells five different stories illustrating the role of law and lawyers in securing goods such as economic justice, environmental protection, and the rights of immigrants, in the city of Los Angeles in the years following the 1992 riots. The book is organized around chapters providing comprehensive histories of these campaigns: Reforming sweatshop labor in the garment industry; contesting anti-solicitation ordinances that restricted the ability of mostly Latino day laborers to obtain employment; ensuring living-wage jobs in the wake of gentrification and community redevelopment projects; blocking the development of a Wal-Mart supercenter that would have undermined unionization in the grocery industry; and improving labor and environmental conditions for truck drivers at the Ports of Los Angeles and Long Beach.
In his most recent Netflix special, all-time-great comedian Chris Rock observes: “[W]hen you’re in a band, you have roles that you play in the band. Sometimes, you sing lead. And sometimes, you’re on tambourine. And if you’re on tambourine, play it right. Play it right. Play it with a . . . smile, because no one wants to see a mad tambourine player.” Rock uses this as an extended metaphor for relationships, but at the risk of wrenching it too far out of context, the comparison can also apply to the role of public interest lawyers in social movements. Some lawyers may aspire to be the lead singer, but the interests of justice may be better served by lawyers playing a supporting role, and playing it well. Continue reading "Lawyers Playing Tambourine"
Jul 6, 2022 Allison Brownell TirresLegal History
When assessing a canonical Supreme Court case, legal scholars often emphasize the road to the case and its decision, and then move on. It is the issuing of the decision that ends the discussion. But there is much to lose if we do not take seriously the aftermath of a case and ask how that decision translated into actual legal practice. This is the important work that Amanda Frost does in her article on the canonical 1898 case United States v. Wong Kim Ark, which upheld the Fourteenth Amendment’s guarantee of citizenship to those born on U.S. soil. The case is heralded as a moment of enlightenment amid a dark exclusionary era, but this article reveals a far more complicated legacy. Frost mines the archives to bring us the startling discovery that Wong Kim Ark’s citizenship was far from settled after the Court issued its decision, despite its unequivocal holding.
By Accident of Birth artfully weaves together multiple strands, including the legal history of birthright citizenship, the social history of Chinese Americans, and the family history of Wong Kim Ark, to shed new light on this landmark case. Wong Kim Ark’s personal and family history serve as the organizing frame for the article. Wong was born in San Francisco in 1870, just two years after Congress ratified the Fourteenth Amendment and twelve years before passing the first Chinese Exclusion Act. His parents lived in the U.S. legally for many years prior to his birth, but they – like other Chinese migrants and Chinese Americans—were commonly subjected to discriminatory state and local laws as well as vigilante violence. Continue reading "Contesting Birthright Citizenship: The Aftermath of Wong Kim Ark"
