Yearly Archives: 2022
Apr 13, 2022 Anne Joseph O'ConnellAdministrative Law
Brian D. Feinstein & Abby K. Wood,
Divided Agencies, 95
S. Cal. L. Rev. __ (forthcoming 2022), available at
SSRN.
Political appointees of all stripes can encounter opposition from the career ranks of federal agencies. Such conflict may shorten the tenures of appointees as well as of career civil servants. Public administration scholars and commentators have emphasized the need for less conflict, often cajoling the “in-and-outers” to get along better with longtime staff.
But what if agencies shouldn’t or couldn’t avoid such conflict? Brian Feinstein and Abby Wood’s new paper, Divided Agencies, suggests that we may not need to lose much sleep. They find that agencies with greater ideological conflict between political appointees and civil servants may be more careful in their rulemaking—by taking in more perspectives (by accepting comments submitted after the deadline), by finalizing their actions more slowly, and perhaps by issuing fewer rules. In their view, civil servants “serve as a bulwark against wild changes in regulatory policy.” By “pull[ing] agency policies toward the median voter,” civil servants “can serve a democratizing function in divided agencies”—a marked contrast to the increasingly mainstream worries about “employment-protected civil servants” operating as a “counter-majoritarian force in policymaking.” Continue reading "Disputing Conflict Avoidance"
Apr 12, 2022 Catherine FiskWork Law
Cynthia Estlund & Wilma Liebman,
Collective Bargaining Beyond Employment in the United States, 42
Comparative Labor Law & Policy Journal __ (forthcoming, 2021), available at
SSRN.
A conventional (and oversimplified) account describes U.S. work law as a mix of two regulatory structures: the labor law model and the employment law model. In the labor law model, law facilitates workers to act collectively to negotiate from a position of relative equality over any terms they and their employer consider important. The labor law model allows flexibility to address the different needs of different industries and minimizes judicial and agency intervention. In the employment law model, law imposes minimum conditions to protect workers regardless of whether they negotiate collectively. This model protects numerical minorities whose right to fair treatment will not be protected by the majority through collective bargaining; it protects those unable or unwilling to unionize; and it protects the interests of the public in ensuring that no individual or collective labor contract falls below certain minimum standards.
Companies determined to avoid both of these regulatory regimes have found a boon in classifying their work force to be nonemployees. Presto: no need to comply with the myriad employment laws, and no legal right to unionize! And, faced with the possibility that workers might unionize even without any legal protection, they invoke antitrust law – presto, collective action is not only unprotected, it is illegal! App-based ride hailing or delivery companies have been leaders in this strategy. Using technology, Uber, Lyft, DoorDash, and other companies have figured out they can have all of the benefits of a huge, centrally-managed, on-demand fleet of drivers and none of the costs. Without any employment protections or the power to bargain collectively, app-based drivers endure wages well below the federal minimum wage of $7.25 on hour, and no social insurance of any kind. Continue reading "Collective Bargaining Without the Protection of Labor Law"
Apr 11, 2022 Sergio ParejaTrusts & Estates
It is vastly better to address issues related to voting outside the context of a hotly contested election. Professor David Horton has done an admirable job of doing this with his article that addresses what he accurately refers to as a “comparatively niche issue of predeceasing absentee voters.” (P. 347.) Specifically, he takes on the nuanced and thorny issue of whether to count votes that were cast by a voter who subsequently dies before election day.
In his thought-provoking article, The Dead Voter Rule, Professor Horton notes that in the 2020 national election, more than 100 million voters used absentee ballots and early voting procedures before Election Day. This was out of the approximately 160 million total votes cast. A small number of early voters, however, died before Election Day. When this happens, many states utilize what Professor Horton refers to as the dead voter rule (the “DVR”) to invalidate those votes. While the numbers are small, Professor Horton accurately notes that those votes can alter the outcome of a close election. He argues persuasively that the DVR should be abolished and that we should not wait until we have a really close election to enact reforms. Continue reading "‘Till Death Do We Vote: The Thorny Issue of Votes Cast By People Who Die Before Election Day"
Apr 8, 2022 Christopher J. RobinetteTorts
The tension between stability and progress is an inherent feature of the common law. Stability in the law provides guidance to people in living their lives and reassurance that there is more to law than the personal preferences of those administering it. If, however, the law never changes with society, it will become ill suited to meet people’s needs. We know law changes over time, but how does it do so without being destabilizing?
Professors Kenneth Abraham and G. Edward White (hereafter “AW”) attempt to answer that question with regard to tort law in their latest book. AW present an illuminating study of legal change grounded in compelling tort history. The book is derived from five articles AW recently co-authored. Each article describes an episode of lost tort history that “departs from the principal focus of tort law scholarship over the last century, liability for accidental bodily injury and property damage.” (P. 3.) Two of the episodes are about tort law generally and three involve intangible harm. After publishing the articles, AW determined that a theme linked all five. Continue reading "Stability and Progress"
Apr 7, 2022 Mireille HildebrandtTechnology Law
In their brief and astute article Is That Your Final Decision? Multi-stage Profiling, Selective Effects, and Article 22 of the GDPR, Reuben Binns and Michael Veale discuss the arduous issues of the EU GDPR’s prohibition of impactful automated decisions. The seemingly Delphic article 22.1 of the GDPR provides data subjects with a right not to be subject to solely automated decisions with legal effect or similarly significant effect. As the authors indicate, similar default prohibitions (of algorithmic decision-making) can be found in many other jurisdictions, raising similar concerns. The article’s relevance for data protection law sits mainly in their incisive discussion of how multi-level decision-making fares under such prohibitions and what ambiguities affect the law’s effectiveness. The authors convincingly argue that there is a disconnect between the potential impact of ‘upstream’ automation on fundamental rights and freedoms and the scope of article 22. While doing so, they lay out the groundwork for a more future-proof legal framework regarding automated decision-making and decision-support.
The European Data Protection Board (EDPB), which advises on the interpretation of the GDPR, has determined that the ‘right not to be subject to’ impactful automated decisions must be understood as a default prohibition that does not depend on data subjects invoking their right. Data controllers (those who determine purpose and means of the processing of personal data) must abide by the prohibition unless one of three exceptions apply. These concern (1) the necessity to engage such decision-making for ‘entering into, or performance of, a contract between the data subject and a data controller’, (2) authorization by ‘Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests’ or (3) ‘explicit consent’ for the relevant automated decision-making. Continue reading "The Disconnect Between ‘Upstream’ Automation and Legal Protection Against Automated Decision Making"
Apr 6, 2022 Adam RosenzweigTax Law
Wei Cui,
New Puzzles in International Tax Agreements,
Tax L. Rev. (forthcoming 2022), available on
SSRN.
The G-7 and G-20 recently announced a “breakthrough” agreement by over 130 countries to adopt and implement a “global minimum tax” proposal. The agreement is reportedly expected to raise over $150 billion in new revenue by closing some of the most notorious tax loopholes in the world; ultimately the deal could reshape global commerce and shore-up beleaguered national finances following the global pandemic. Officials involved in the deal have been quoted as making sweeping statements that the deal was historic, and that it would reshape the global economy, make worldwide taxation fairer, eliminate incentives for corporations to avoid tax, and serve as a clear signal for global justice.
A consistent theme can be seen to emerge from this process – that the cause for most of the problems plaguing the international tax regime ultimately stem from a lack of political will, with global corporate interests exploiting the vacuum of an uncoordinated tax system. Regardless if it is true, such a theme carries with it two collateral implications: (1) there is no disagreement as to the substance of the deal from a legal or policy standpoint and (2) any questioning of (1) must be motivated by the same political forces preventing reform in the past. Wei Cui’s article New Puzzles in International Tax Agreements analyzes and criticizes this theme. Continue reading "Carving a Path for Legal Scholarship During an Existential Crisis"
Apr 5, 2022 Shelby D. GreenProperty
Despite their solid, lifeless guise, monuments speak. But whose stories do they relate? Recently, there has been much debate about the role and purpose of monuments; which monuments or memorials deserve protection and which ones should be removed.
In We Are All Growing Old Together: Making Sense Of America’s Monument-Protection Laws, Professor Zachary Bray, aims to help us see that the views on these issues do not align nicely between North and South, conservative or progressive. Instead, the issue is much more multi-dimensional. Continue reading "Rethinking the Role and Values of Monuments"
Apr 4, 2022 Christine BartholomewCourts Law
Personal jurisdiction is one of those legal headscratchers. Courts and commentators assume that personal jurisdiction doctrine—which delimits where a defendant can face suit—is rooted in the due process clause, imposing a constitutional limit on the reach of state authority. This means courts usually find personal jurisdiction (1) where a defendant resides, (2) where it has sufficient “minimum contacts” that closely “relate to” the litigation, or (3) where it is physically served with process. But the Supreme Court has limited this last option—“tag jurisdiction”—to individuals, not corporations. In a great new article, Patrick Borchers offers a contrary view, decoupling personal jurisdiction from due process and concluding that states can constitutionally adopt long arm statutes permitting tag jurisdiction over corporations.
The Supreme Court has struggled to articulate a workable test for personal jurisdiction. So when Ford v. Montana, a products liability case, yielded a unanimous ruling last year, it generated attention. The majority found Ford’s significant contacts relating to its car business—such as selling and servicing its cars in the forum state—sufficed for personal jurisdiction, even though the individual vehicles involved in the accidents were originally purchased elsewhere. As Anya Bernstein and I have explained, Ford clarifies that, for personal jurisdiction purposes, a defendant’s contacts with the forum state need not give rise to the particular cause of action; it is enough for the defendant’s state contacts to relate to the lawsuit’s “underlying controversy.” Continue reading "A Post Minimum Contacts World"
Apr 1, 2022 Anita KrishnakumarLexLegislation
In Legal Corpus Linguistics and the Half-Empirical Attitude, Professor Anya Bernstein provides an illuminating and forceful critique of the claim that corpus linguistics—the study of patterns of language usage across a wide array of English-language sources—should be used to “empirically” derive the ordinary meaning of words used in legal texts. Corpus linguistics has been a hot topic in statutory and constitutional interpretation for the past several years, as a growing number of judges, scholars, litigants, and amicus curiae have pressed for its use in cases that turn on the meaning of a legal term or phrase. Perhaps most notably, in an article titled Judging Ordinary Meaning Utah Supreme Court Associate Chief Justice Thomas R. Lee and his former law clerk Stephen Mouritsen have argued that the concept of “ordinary meaning” implicates empirical questions that the field of corpus linguistics is well-designed to answer—and have urged courts to “import [corpus linguistics] methods into the modern theory and practice of interpretation.”
Professor Bernstein’s thoughtful article astutely identifies several serious flaws with such an interpretive move, calling into question the push to use corpus linguistics to determine statutory or constitutional meaning and the effort to use corpus linguistics to add an empirical dimension to the search for ordinary meaning. Her central critique is that the use of corpus linguistics to determine the meaning of legal texts mismatches methods and goals. She contends, for example, that while corpus linguistics in linguistics makes an empirical claim to illuminate truths about how language in the corpus is used, the use of corpus linguistics in legal interpretation misuses empirical methods to make a normative claim—i.e., that the usage patterns identified through corpus analysis ought to influence the interpretation of legal texts. Bernstein labels this attempt to treat normative claims as empirical a “half-empirical” attitude. And she meticulously questions the assumptions underlying that claim. Continue reading "On the Perils of Using Corpus Linguistics to Interpret Statutes"
Mar 31, 2022 Amy SalyzynLegal Profession
Rima Sirota,
Can Continuing Legal Education Pass the Test? Empirical Lessons from the Medical World,
Notre Dame J. L., Ethics & Pub. Pol’y (forthcoming 2022), available at
Georgetown Scholarly Commons.
Mandatory continuing legal education (MCLE) is one of the most ubiquitous regulatory measures aimed at ensuring continuing lawyer competence. It is also one of the most critiqued. Over the past several decades, many lawyers and academics have argued that MCLE should be reformed, if not abolished. While MCLE requirements have so far largely withstood these attacks, recently, lawyer regulators seem to have developed a new appetite for doing things differently. A recent international survey of approaches to lawyer continuing competence observed, “lawyer regulators around the world have sought to improve the ability of CPD [continuing professional development] to improve competence in a number of different ways, increasingly moving away from a generic durational requirement.”
In light of these developments, Rima Sirota’s article, Can Continuing Legal Education Pass the Test? Empirical Lessons from the Medical World, is a timely contribution to the literature on lawyer regulation. Speaking of the American context, Sirota argues that “the mandatory CLE system in its current state is indefensible” given its high costs and the lack of empirical evidence suggesting that CLE leads to improved lawyer competence. (P. 3.) While others have previously made this general point, Sirota’s contribution stands out for her call to the legal profession “to take up the empirical challenge” of measuring CLE outcomes and her provision of a roadmap on how this could be done. (P. 45.) Moreover, the comparative approach taken by Sirota, which looks to the medical profession’s approach to continuing education for potential insights, provides a fresh take on long-standing concerns about MCLE in the legal profession. Continue reading "Taking Up the Challenge: A Roadmap for Studying the Effectiveness of Mandatory Continuing Legal Education"
