Yearly Archives: 2022
Mar 10, 2022 Jonathan SimonCriminal Law
Benjamin Levin, Criminal Justice Expertise, 90 Fordham L. Rev. __ (forthcoming 2022).
Much of Benjamin Levin’s prolific work in recent years is concerned with what might be called the history of the criminal justice present; understanding the many intellectual and activist currents that are shaping the remarkable current moment when criminal justice reform in many states is happening (although in fits and starts) and claims of abolition not heard in a generation are also being raised. In Criminal Justice Expertise, perhaps his most intellectually venturesome work, Levin steps back from the frontlines of emerging law (topics like “wage theft,” “mens rea reform,” and “progressive prosecutors”) to look at the nature of expertise about criminal law and justice as it figures in debates about criminal justice reform. In doing so, I believe Levin helps many of us thinking and acting in this space to locate ourselves in ways more enabling of cooperating and conflict (when necessary).
For a long time, one of the dominant strains in criminal justice reform scholarship from academics has argued for a more administrative law model of criminal law in which the power of police, prosecutors, and prison administrations would be subjected to greater procedural transparency and scrutiny by expert analysis of objective data. This expert reform logic, sometimes referred to today as “evidence based criminal justice reform,” relates to an even more seasoned narrative about mass incarceration, that described it as a product of the success of a politicized punitive populism over an earlier consensus behind expert-based rule over criminal justice (David Garland’s The Culture of Control: Crime and Social Order in Contemporary Society 2001 is perhaps the most influential version of this account). Continue reading "The Politics of Penal Expertise"
Mar 9, 2022 Caroline BradleyCorporate Law
The valuation of a shareholder’s interest in a corporation is a central issue in corporate law. In recent cases the Delaware courts have responded to appraisal arbitrage by limiting recovery in appraisal actions to deal price, deal price less synergy, or even market price unaffected by the deal. The cases have given rise to a literature of both praise and critique. Charles Korsmo and Minor Myers take the analysis a step further in What Do Stockholders Own? The Rise of the Trading Price Paradigm in Corporate Law, arguing that the implications of these appraisal decisions reach beyond appraisal to cases involving mergers more generally, and suggest an incipient paradigm shift in how Delaware law conceives of the (value of the) stockholder’s interest in the corporation: “[i]n a real sense, the Supreme Court in the appraisal cases has simply altered its conception of the public corporation as a form of property.” (P. 3.) The authors argue that the new paradigm is a negative development, essentially eliminating appraisal (which they see as a remedy with beneficial effects), reducing incentives for investors to buy shares in public corporations, and creating undesirable uncertainty about bedrock propositions of Delaware corporate law.
This is an important argument in a very readable and carefully argued article, one that is perhaps even more significant now, as appraisal is not the only area where the Delaware Supreme Court is limiting shareholder litigation. In the appraisal context the authors say it is not “the first time the Delaware Supreme Court has recently tried to hide sweeping doctrinal change beneath a veneer of “nothing-to-see-here” consistency.” (P. 4.) Brookfield Asset Management v Rosson and United Food and Commercial Workers Union v Zuckerberg have much the same feel. Continue reading "The Value of a Shareholding"
Mar 8, 2022 David HoffmanContracts
Michael A. Blasie,
The Rise of Plain Language Laws, 76
U. Miami L. Rev. 447 (2022), available at
SSRN.
Many contract professors find the cases describing modern consumer contracts to be particularly challenging. The adhesive, omnipresent, nature of such deals belies the idea of the meeting of the minds, and the nation’s politics make reform seem out of reach. We all know that there are too many consumer contracts, and that the terms of such deals get worse every year. But what’s to be done about it? The fervor about consumer contracts even reached into the august halls of the American Law Institute, whose Restatement of Consumer Contracts faced substantial opposition last year when it embraced courts’ apparent tendency to de-emphasize the role of conspicuous notice in formation. You would be well within your rights to think that realities of consumer contracts make the rest of the semester feel like a bait-and-switch.
But take heart and read Michael Blasie’s The Rise of Plain Language Laws. Blasie shows that the last 40 years has wrought a quiet revolution in consumer contracting – one that is essentially never taught in our classrooms or remarked on in mainstream contracts scholarship. Legislatures have apparently created strong substantive mandates for what can be in consumer contracts, and how they can look, in essentially every state. They’ve done so in a relatively non-partisan way, over only modest opposition. It’s a shocking story. Continue reading "What If We’d Already Revolutionized Contract Law But No One Knew it?"
Mar 7, 2022 Rebecca ZietlowConstitutional Law
In recent years, some historians and legal scholars have taken to calling the Reconstruction Era the Second Founding of our Constitution. In The Second Founding and the First Amendment, William C. Carter joins these scholars and asks what it would mean if courts took the Second Founding seriously. Carter argues persuasively that the Reconstruction Amendments altered the entire constitution. If Carter is correct, then the Court should take seriously what it once observed, that there is “one pervading purpose” to the Reconstruction Amendments, “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.” Although the Reconstruction Amendments were not limited to that purpose, it is undeniable that unlike other constitutional provisions, the Reconstruction amendments – the 13th, 14th and 15th Amendments – were adopted with a particular group of people in mind, people who were formerly enslaved.
The Reconstruction Amendments expanded the constitution to protect those who had previously been excluded and disempowered. It follows that the Court should consider the experiences of enslaved people when interpreting those provisions. Until now, however, the perspective of formerly enslaved people has been largely absent from the conversation about the meaning of the constitutional changes wrought by Reconstruction. In The Second Founding and the First Amendment, William C. Carter seeks to remedy that oversight. Carter argues that we should interpret the constitution from the perspective of the disempowered people who were the intended beneficiaries of constitutional change. Moreover, formerly enslaved people and their free Black allies helped to create this constitutional meaning, actively participating in the antislavery movement and Civil War which brought about the end of slavery and the Reconstruction Era. Continue reading "The Transformative Impact of the Reconstruction Amendments from the Perspective of Enslaved People"
Mar 4, 2022 Edward RubinAdministrative Law
Guidance is a large, amorphous group of communications, often fluid and informal, by which administrative agencies instruct regulated parties about the way to comply with statutes, legislative rules and legal precedents. In-depth interviewing, as opposed to statistically analyzed surveys, is a fluid, relatively informal method of collecting empirical data. In Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, Nicholas Parrillo uses in-depth interviewing to understand the way in which guidance operates in the federal system. One reason I like it lots is that it is represents an effective combination of subject matter and methodology.
Professor Parrillo conducted 135 in-depth interviews with people in government, industry, unions and NGOs who had personal experience with the way federal agencies use guidance. Through this method, he was able to garner a great deal of information about a wide variety of guidance techniques, the effectiveness or ineffectiveness of these techniques, the subtleties of agency practice and regulated party response, the subjective reactions of the participants, and the sources of conflict and concern. Much of this would have been difficult or impossible to capture with a survey instrument, and some of the issues might not even have occurred to the researcher until highlighted by the interviewees. Of course, this method does not permit quantitative statements about the frequency of particular practices or beliefs, but when several people with decades of experience assert that a practice or attitude is widespread, that seems like convincing evidence. Continue reading "Uncovering the Hidden World of Administrative Guidance"
Mar 3, 2022 Joseph SeinerWork Law
In [Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights, Professor Doron Dorfman performs a superb analysis of the issue of accommodations for individuals with disabilities and the perception and attitudes of the public with respect to these accommodations.
The Americans with Disabilities Act (ADA) requires, under federal law, that those individuals with disabilities be provided with reasonable accommodations that do not cause undue hardship. The accommodation provisions of the ADA are wide-ranging, and cover both public and workplace accommodations. Though Professor Dorfman’s analysis in this paper is largely in the public accommodation context, the research is directly applicable, and important to, workplace issues and employment.
In this piece, Professor Dorfman looks at the many types of accommodations to which those with disabilities are entitled under federal law, and explores how nondisabled persons may perceive that these types of “special rights” are being abused. More specifically, he examines the perception by some that these accommodations are unnecessary or are being exploited, resulting in the (phrase coined by Professor Dorfman), “fear of the disability con.” In this paper, Professor Dorfman examines how these types of concerns by nondisabled members of the community can begin to erode trust in the ADA, as well as subject individuals with disabilities to both harassment and questions about their protected status. Continue reading "Public Accommodations, Public Perceptions, and Workplace Law"
Mar 2, 2022 Allison Anna TaitTrusts & Estates
Fred O. Smith Jr.’s compelling new article, On Time, (In)equality, and Death, is a remarkable inquiry that delves into the posthumous rights of individuals and the risks of subordination that persist even beyond death. Smith identifies “four long-standing ‘rights’ after death” – bodily integrity, dignified interment, protection against undignified disturbance once interred, and control over the disposition of one’s property – and subsequently analyzes the potential that inheres in each category for posthumous subordination. These risks overlap with and undergird each other, discrimination compounding dispossession, but Smith identifies four main mechanisms and details how reliance on these mechanisms increases the likelihood of posthumous subordination.
The first site of subordination is linguistic and discursive. As Smith explains, statutory language used to govern burial practices and acts of desecration rely on terms like “outrage,” “offensiveness,” and “reasonableness.” The problem is that these terms are culturally contingent and “imbued with cultural values and norms.” Bodies have been prepared in different ways, burial has involved many different processes, and mourning practices have ranged from public and vocal, to private and silent. Cultural norms, pinpointed in time, have dictated these practices and the variety of approaches taken to death and care for the dead reminds us that the “outrage” accounted for in statutes is co-extensive with whatever it is that ruling bodies and classes find outrageous at any given moment. It would be interesting to have some examples of what Smith has in mind here as evidence of the cultural contingency of burial practices. Continue reading "Unearthing Posthumous Subordination"
Mar 1, 2022 Ari WaldmanTechnology Law
evelyn douek,
Content Moderation as Administration (Jan. 12, 2022), available on
SSRN.
As law-and-technology scholar evelyn douek explains in her eye-opening, scholarly, and well-written Content Moderation as Administration, the conventional account of content moderation is wrong and its policy implications are off the mark. douek argues that we should toss aside the assumption that content moderation is a series of individual decisions made by people and computers acting as judges. The better way to think about it is as a process of ex ante rights administration and institutional design. Instead of learning lessons from judicial process, we need to learn from administrative law.
A system of immeasurable scale purportedly designed to reflect liberal First Amendment principles, content moderation now includes algorithms and artificial intelligence, armies of third-party moderators from the Global South paid very little to make decisions in seconds, and, a lot of money for Silicon Valley executives. Of course, this has led to repeated and repeatedly horrible results. Content moderation rules and practices facilitated genocide, helped swing elections toward fascists, and routinely and systematically censored queer and nonnormative sexual content. Right wing politicians got in on the act, as well, claiming designed-in and as-applied anti-conservative bias when the evidence proved the opposite. Facebook responded by creating an oversight board with a lot of fanfare, but very little power. Continue reading "Shifting the Content Moderation Paradigm"
Feb 28, 2022 Allan ErbsenCourts Law
Pamela K. Bookman & Colleen F. Shanahan,
A Tale of Two Civil Procedures, 122
Colum. L. Rev. __ (forthcoming, 2022), available at
SSRN.
Law students often perceive civil procedure as the first-year subject that is least accessible to nonlawyers. Before law school, students signed contracts, owned property, monitored criminal trials, encountered torts, and invoked the Constitution. But civil procedure teems with novel concepts, mysterious rites, and unfamiliar vocabulary. These features beguile students into viewing civil procedure as a realm in which only lawyers tread. The case method reinforces this misperception by focusing on published opinions arising from litigation between represented parties. The misperception persists after graduation and influences how lawyers conceptualize the field of civil procedure.
Unfortunately, focusing on how procedure shapes opportunities for lawyers obscures the large volume of civil cases in which at least one party does not have a lawyer. A growing literature explores the implications of failing to adapt lawyer-centric procedural ideals to “lawyerless” adjudication. Scholars have analyzed state courts in which cases routinely proceed without lawyers (such as family courts) or in which represented parties sue unrepresented parties (such as housing courts). These courts affect millions of vulnerable people in traumatic circumstances. Yet procedures in many lawyerless courts fail to account for the practical consequences of self-representation within a nominally adversarial system. The ensuing risk of injustice has led commentators to propose a wide variety of reforms. Pamela Bookman and Colleen Shanahan’s A Tale of Two Civil Procedures looks beyond “fixing” specific procedures. The Article focuses instead on removing obstacles to understanding what is broken. A critical obstacle is that commentators often frame the field of civil procedure in a way that obscures the importance of lawyerless adjudication. The Article suggests reframing the field to directly engage with distinctions between “lawyered” and “lawyerless” courts. Bookman and Shanahan contend that this approach will make descriptive accounts of civil procedure more precise, normative discussions more nuanced, and reform proposals more effective. Continue reading "Civil Procedure for Lawyerless Courts"
Feb 25, 2022 Kathleen DeLaney ThomasTax Law
The problem of income inequality is well-documented. And for those who support greater income redistribution, the current state of affairs is bleak. Proposals for a wealth tax or heavier taxation of capital income appear to have stalled, and little progress has been made towards meaningful reform measures that would shrink wealth and/or income gaps.
So what gives? We already know part of the story. Progressive tax proposals, such as mark-to-market taxation, tend to be complex, which in turn makes them harder to sell to politicians and the public. Similarly, reform measures like a wealth tax face criticism that they would be too hard to administer. Yet adding to these problems appears to be a general indifference, if not outright lack of support, from the public. This is puzzling because, given the evidence that only a very small percent of Americans holds most of the nation’s wealth, a lot of people would benefit from wealth or income redistribution. So why isn’t there more popular support for redistributive tax policies? A recent empirical study offers compelling evidence of another major barrier to reform: our irrational, subjective beliefs about where we fall on the income distribution. Continue reading "Why is it So Hard to Reduce the Wealth Gap? Cognitive Bias May Be Partly to Blame"
