Monthly Archives: February 2023
Feb 14, 2023 Christopher WalkerAdministrative Law
Bridget C.E. Dooling & Rachel Augustine Potter,
Regulatory Body Shops, __
Admin. L. Rev. __ (forthcoming 2023), draft available at
SSRN.
When it comes to understanding the political dynamics of agency rulemaking, the place to start is Rachel Potter’s book Bending the Rules: Procedural Politicking in the Bureaucracy, about which the Yale Journal on Regulation published a blog symposium in 2019. Through a mix of qualitative and quantitative methods, Potter explores how agency officials—both career civil servants and political appointees—play a role in the rulemaking process and leverage procedural rules to help advance their preferred policy outcomes.
It turns out, however, that this depiction of agency rulemaking omits an important category of rule drafters: government contractors. Fortunately for the field of administrative law, the Administrative Conference of the United States engaged Potter and Bridget Dooling to conduct a study of the role of private contractors in federal agency rulemaking. They interviewed some forty-five agency officials, contractors, and other experts. Rulemaking by Contract, which is forthcoming in the Administrative Law Review, presents the descriptive findings of their study and is well worth a close read. Here, however, I focus on their follow-up article, Regulatory Body Shops, which explores the normative implications of their findings in creative and important ways. Continue reading "Outsourcing Agency Rulemaking"
Feb 13, 2023 Joseph SlaterWork Law
Michael Z. Green,
Black and Blue Police Arbitration Reforms, 84
Ohio St. L.J. 1 (forthcoming), available at
SSRN.
Police unions are a contentious topic. Labor academics have debated whether limiting unions’ collective bargaining rights would reduce police misconduct, especially excessive force and racial discrimination. For example, compare Benjamin Sachs, Police Unions: It’s Time to Change the Law and End the Abuse, On Labor (June 4, 2020) with Martin Malin and Joseph Slater, In Defense of Police Collective Bargaining, Chicago Sun-Times (Aug. 12, 2020). Relevant here, a New York Times editorial called for abolishing labor arbitration in police discipline cases. To Hold Police Accountable, Ax the Arbitrators, N.Y. Times (Oct. 3, 2020).
These debates and the events that gave rise to them have already led to limits on police collective bargaining. For example, in 2020, the District of Columbia made discipline of police officers a management right not subject to negotiation. See Fraternal Order of Police, Metropolitan Police Dept. Labor Committee v. District of Columbia, 502 F. Supp. 3d 45 (D.D.C. 2020). Other states restricted who could act as an arbitrator in police discipline cases. See Washington State statute SB 5055 and Minnesota statute 626.892.
In this context, Michael Green’s article Black and Blue Police Arbitration Reforms makes a valuable and persuasive contribution. The article rebuts various attacks on labor arbitrators and police union arbitrations. It also offers reforms designed to give Black police officers a voice in a more transparent process. It suggests that police employers and unions negotiate agreements to consider public values in defining “just cause” disciplinary actions in which race matters. Continue reading "Critiquing the Critiques of Police Labor Arbitrations"
Feb 10, 2023 Jasminka KalajdzicCourts Law
The digital revolution has compelled us to review, and at times rethink, important parts of our law. From gig workers to social media, artificial intelligence to self-driving cars, technological advancements have resisted the mechanical application of rules developed in the pre-digital age. Copyright law offers one example. As digital aggregation technologies enable the reproduction of millions of copyrighted works, they test law’s capacity to define, address, and compensate for infringements – as a matter of both doctrine and procedure.
Enter the class action device. Although copyright scholars have debated how law should evolve to address new technological uses, Xiyin Tang may be the first to suggest that copyright class actions can achieve by private ordering what has eluded legislators. The Class Action as Licensing and Reform Device argues that copyright class actions have effected advancements in copyright law and will continue to play an increasingly important role in licensing and reform.
Tang analyzes fifty years of copyright class actions to make the point that this form of litigation can efficiently address the millions of copyright right claims involving streaming services, a feat that neither the market, the regulator, specialized courts, nor Congress could achieve on their own. In mounting this argument, Tang makes the provocative claim that these class actions are doing something quite different from typical mass-tort, discrimination, and consumer class actions – compensating for injuries defined by existing law and updating the law by filling the gaps exposed by new technology. Both legal proceduralists and copyright scholars should take note. Continue reading "Copyright Class Actions as Catalysts for Legislative Reform"
Feb 9, 2023 Michael YuTrusts & Estates
In the field of inheritance law, will execution and revocation formalities loom large because, traditionally, courts have demanded strict compliance with statutory procedures for creating and revoking a testamentary instrument. As to the law of revoking wills in their entirety, Professor David Horton, in Revoking Wills, argues that the high formalism of will revocation doctrine is problematic and should be loosened by: (1) courts increasing their nascent use of the constructive trust in certain failed will revocations, (2) extending the harmless error rule into will revocation law, and (3) as “a novel path forward: importing the will revocation formalities from trust law.” (P. 563.)
To help frame his critique of will revocation law, Professor Horton first summarizes will execution law, which “has long been synonymous with ‘harsh and relentless formalism.’” (P. 573, quoting Professor John Langbein.) The oft-cited benefits of will execution formalities include: (1) the “evidentiary” function of ensuring that the decedent’s wishes are in a “reliable and permanent form”, (2) the “ritual” or “cautionary” function that protects against “inconsiderate action”, (3) the “protective” function of “shielding testators from fraud and undue influence”, and (4) the “channeling function” of “standardizing the appearance of testamentary instruments”. (Pp. 575-76, citations omitted.) Professor Horton argues, however, that the formalities in will execution law are becoming more flexible, as seen in the rise of the harmless error rule and statutes governing electronic wills. (Pp. 579-80.) Continue reading "It’s Time to Talk about Will Revocation Rules"
Feb 8, 2023 Anthony SebokTorts
Edward Cheng, Ehud Guttel & Yuval Procaccia,
Unenforceable Waivers, 76
Vand. L. Rev. __ (forthcoming, 2023), available at
SSRN.
In their forthcoming article, Unenforceable Waivers, Edward Cheng, Ehud Guttel, and Yuval Procaccia (“CGP”) ask an embarrassing question: Why do businesses require customers to sign waivers that have been struck down by courts in published opinions that are available not only to their lawyers but also to their customers? In this Jot, I praise CGP for their sharp eye–this is torts scholarship at its best–and then evaluate their suggestions for reform.
First, the question: Killington Ski Resort is the defendant in a well-known Vermont Supreme Court case that adopted a pro-plaintiff interpretation of the public policy limitation on express assumption of risk. Why does Killington still ask its customers to sign the waiver struck down in that case (Dalury v. S-K-I Limited)? I teach this case, as do many others, as a clear statement of Vermont law. In classroom discussion, I begin with the assumption that whatever one thinks of Dalury’s common law reasoning or policy implications, the Vermont Supreme Court was “wrong clearly even when [it] was clearly wrong” (pace H.L.A. Hart). Continue reading "Just Kidding? The Problem of Unenforceable Waivers of Liability"
Feb 7, 2023 Ari WaldmanTechnology Law
Karen Levy’s book Data Driven, an incisive and accessible sociolegal study of workplace surveillance in the trucking industry, begins with a tale of superheroes. These superheroes are machines from a far-off world dedicated to saving humanity from other machines bent on our destruction. (Think “The Transformers.”) The problem is: Our would-be saviors can’t move. They’ve worked too hard for too long, saving humanity from all sorts of harm, and now, by law and by design, they must rest.
Levy, a professor in Cornell University’s Department of Information Science, tells this story, drawn directly from the pages of a trucking industry periodical, to introduce us to the electronic logging device, or ELD. ELDs are now integrated by law into every commercial truck driving across state lines. They are designed to force compliance with federal “hours-of-service” regulations, which limit the number of hours truckers can drive before taking rest breaks. Like our would-be robot saviors, trucks constrained by ELDs cannot move when their drivers have reached their hours limits. That isn’t necessarily so bad; trucker fatigue is dangerous to truckers and everyone else on the road. But, as Levy explains, ELDs are a lot more insidious. Continue reading "Surveilling Truckers and the Future of the Workplace"
Feb 6, 2023 Leigh OsofskyTax Law
In this illuminating article, Heather Field describes her adoption of a flipped classroom model for teaching tax law during the pandemic. Like many, Field learned lessons from her pandemic teaching that will continue to be instructive now that we are (hopefully) back to an in-person teaching world. Field’s thoughtful article is well worth a read for those (like me!) wanting to do more with flipped classroom teaching.
As Field describes, a flipped classroom involves moving content delivery outside of the classroom (for instance to pre-class videos created by the instructor), thereby creating more space in the class period for active learning in the form of activities and problems. The purported benefits of flipped classrooms include more time for active student learning in class, the ability of students to learn and review content from the videos at their own pace, and the possibility of more differentiation in in-class problem sets. Flipped classrooms certainly were not new to the pandemic, but rather had existed in a variety of educational spaces prior to the turn to remote learning. However, like Field, many professors had not embraced the flipped classroom before the emergency teaching experience that was Spring 2020. Continue reading "Flipping Classrooms in an In-Person World"
Feb 3, 2023 Andrea BoyackProperty
Elizabeth Elia,
Servitudes Done “Proper”ly: Propriety, Not Contract Law, __
J. Land Use & Envtl. L. __ (forthcoming), available at
SSRN.
One of my favorite souvenirs from studying and working in Russia is a many-layered matryoshka, or “Russian Doll.” The unpretentious red, yellow, and blue painted wooden doll opens to reveal a smaller, nearly identical doll, which in turn opens to reveal another and another. This particular matryoshka has eleven dolls nested within one another – the smallest barely larger than a grain of rice.
How delightful it was to read Elizabeth Elia’s article, Servitudes Done “Proper”ly: Propriety, Not Contract Law, which frames community servitudes as one of the many nested governing layers within our legal system. Elia’s “Russian Doll” metaphor is compelling, and her broader point – that a governance (“propriety”) frame is the appropriate one for property law – provides gratifying and unexpected analytical clarity to the law of servitudes. Continue reading "Property through a Propriety Lens: Servitudes as American Matryoshkii (Russian Dolls)"
Feb 2, 2023 Eli NachmanyLexLegislation
A couple of decades ago, Oakland Athletics general manager Billy Beane revolutionized baseball. In constructing the Athletics’ roster of players, Beane employed analytics and data to exploit market gaps in the Major League Baseball labor economy—an innovative strategy. It worked. In 2002, Beane’s Athletics won over 63% of their games and easily made the playoffs on a shoestring budget. Michael Lewis’s book Moneyball—which later became a movie—chronicles the 2002 Oakland Athletics season as a triumph of empirical analysis in baseball. But when other teams jumped into the fray, attempting to reorient their rosters entirely through analytics, many found limited success. The key insight to be gleaned from Moneyball is that analytics has a place in roster construction; at the same time, the last twenty years of baseball show that analytics are not everything.
In Testing Textualism’s “Ordinary Meaning”, Professor Tara Leigh Grove resists the empiricists’ takeover of a wholly different sport: interpretation of statutory text. Professor Grove begins her piece by noting that “[s]cholarship on statutory interpretation has taken an empirical turn.” In particular, scholars have employed empirical methods—e.g., surveys—to ascertain “ordinary meaning.” For these commentators, “ordinary meaning” is an empirical fact, “thereby justifying efforts to test textualism.” (Textualism is a theory of statutory interpretation, popularized by Justice Antonin Scalia, by which jurists interpret statutes according to the statutes’ “ordinary meaning.”) But in Professor Grove’s telling, “ordinary meaning” is also a legal concept that raises normative questions about law interpretation. Continue reading "Textualism and Statutory Interpretation in a Post-Moneyball World"
Feb 1, 2023 Scott CummingsLegal Profession
Etienne Toussaint,
The Miseducation of Public Citizens, 29
Geo. J. Pov. L. & Pol’y 287 (2022), available at
SSRN.
In The Miseducation of Public Citizens, Professor Etienne Toussaint argues that, although the ABA’s Model Rules of Professional Conduct call for lawyers to be “public citizens” with a special responsibility to promote justice and protect the rule of law, the way that law is typically taught undermines these public goals. Specifically, he argues that the formalistic approach to teaching legal rules hides their role in creating and sustaining structural inequality in the legal profession and the broader society.
To counter this problem, Toussaint proposes new pedagogical principles designed to advance a justice-oriented conception of the lawyer’s public citizen role. In his words, for law schools to “engage the moral tensions between the lawyer’s professional role morality and the lawyer’s individual moral compass,” they must teach “public citizen lawyering” as a “countercultural vision of practice-readiness grounded by the normative responsibilities enshrined in the Model Rules.” (pp. 293-94.) These principles derive from the ethical rules—on candor, competence, legal reform, and communication—yet Toussaint reinterprets these ethical mandates to unlock the potential to equip students to fulfill their public citizen role. Continue reading "A Critical Approach to Legal Pedagogy"
