Monthly Archives: July 2023
Jul 18, 2023 Christopher J. RobinetteTorts
Alexandra D. Lahav,
A Revisionist History of Products Liability (Jan. 9, 2023), available at
SSRN.
The story of the rise and fall of privity of contract in products liability is familiar to all torts scholars. William Prosser even labeled privity a “citadel” and wrote two significant law review articles discussing in martial terms the assault upon and fall of the citadel of privity. The story is simple. In an 1842 English case, Winterbottom v. Wright, Lord Abinger held that an injured passenger could not sue the manufacturer of the allegedly defective stagecoach that injured him because the coach was provided under contract to the passenger’s employer, not to him. Abinger invoked floodgates by reasoning, “There is no privity of contract between these parties…Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue…” Id. The rule migrated to the United States, where courts held that, even though Winterbottom sued in contract, privity prevented plaintiffs from recovering for products injuries in negligence cases. In 1916, however, Judge Cardozo in MacPherson v. Buick Motor Co. ended the reign of privity by holding that a plaintiff injured by an allegedly defective automobile that he purchased from a retailer could sue the manufacturer directly.
But the story is false. Such is the argument of Professor Alexandra Lahav in her compelling new article. Instead, Lahav insists that the doctrinal rule for producers of injurious products in the United States in the nineteenth century was negligence liability. Continue reading "The Citadel as Sandcastle"
Jul 17, 2023 Seth EndoCourts Law
It is perfectly understandable why so many lawyers believe civil procedure is a slog. For litigators, their first experiences as attorneys involve plodding through thousands of near-identical documents to respond to a discovery request or consulting Rule 6 to determine when a response to a motion was due (remember not to include the last day of the period if it is Saturday, Sunday, or legal holiday!). But civil procedure raises big normative issues too. A wave of articles and symposia have taken aim at the civil justice gap, examining everything from the split between lawyerless and lawyered courts to the demographic composition of unrepresented litigants to using technology to reform service of process. Building on Rebecca Sandefur’s foundational work, Kathryne Young and Katie Billings apply insights from sociology to both enhance and implicitly challenge the existing access-to-justice literature.
Young and Billings’ initial framing highlights their cross-discipline expertise as they note that the cost of the civil justice gap goes beyond economics. They recognize that the stakes include a tax on time, stress, and other emotional tolls that lead to mental and physical health problems. And these harms are not uncommon—about half of U.S. households include a member with a problem actionable under civil law. Continue reading "Deepening Our Understanding of the Who’s of the A2J Crisis"
Jul 14, 2023 Neil H. BuchananTax Law
Why are gender and unpaid work issues continually marginalized in tax policy analysis? After all, feminist legal theorists have spent at least two generations trying to address questions that should be at the center of any analysis of government policy, no matter one’s political priors. People who want to turn the clock back to a 1950’s-style gendered hierarchy, for example, surely would want to know that their version of utopia (which, to be clear, I find positively dystopian) cannot possibly be created without understanding how government taxation and spending policies change people’s decisions about marriage and divorce, child-bearing and -rearing, the challenges of poverty (both sudden and chronic), and so on. Progressives are typically more aware of those connections, but somehow the “tax is different” mantra prevents many people from seeing that gender justice and tax justice are inseparable.
Miranda Stewart, a professor of tax law at the University of Melbourne, has long carried on important work to bring these issues to the fore. Her latest book, Tax & Government in the 21st Century, is a masterwork that covers the full range of issues that confront us, from savings and wealth, to corporate and business taxation, to the global digital economy, and every important issue in between. She builds her book on historical and philosophical foundations, discussing Adam Smith and the interactive development and evolution of states and capitalism (of various varieties). Confronted with a veritable buffet table of enticing potential topics to savor in this short review, I find that her most profound contribution (among many) is in Chapter 5, “Tax, Work, and Family.” Continue reading "Gender Issues in the Modern Tax State"
Jul 13, 2023 Bethany BergerLexNative Peoples Law
Debates over Founding Era constitutional understandings proliferate in scholarship and litigation. The understandings examined, however, are almost exclusively those of the white men who either drafted the constitution or could vote on its ratification. In We the (Native) People?, Professor Gregory Ablavsky and doctoral candidate Tanner Allread broaden this focus, uncovering what Indigenous people said and thought about the Constitution’s meaning. Like Mary Bilder’s recent article on the influence of Cherokee, Chickasaw, and Choctaw delegations’ visits to the constitutional convention in 1787, and earlier works by Robert Clinton, Maggie Blackhawk, and Ablavsky himself, the article confirms the influence of tribal actions on the Constitution and its interpretation. But in foregrounding Indigenous people’s perspectives, Ablavsky and Allread open a new window on those actions as well as on constitutional history and law.
The first contribution of the article is to identify pre-constitutional tribal-settler diplomacy as an important backdrop against which the Constitution was drafted and understood. As scholars like Robert Williams and Colin Calloway have shown, established rules, shaped by both Indigenous and English traditions, governed this diplomacy. These practices included both accepted rituals and norms of negotiation, reciprocity, and ongoing relationships that the English violated at their peril. Ablavsky and Allread dub this body of rules the “diplomatic constitution,” invoking the times’ definition of constitution as the practices, institutions, and discourses that disciplined governmental power. Influential founders, they show, like George Washington, Ben Franklin, James Madison, James Monroe, and Thomas Jefferson, would all have been familiar with this diplomatic constitution from their own experiences at negotiations with tribal nations. Continue reading "Expanding the Constitutional Lens"
Jul 13, 2023 Allison Brownell TirresLegal History
What did indigenous peoples think of the Constitution at the time of its drafting and in the first decades following ratification? This is the intriguing question at the heart of a compelling new article by Gregory Ablavsky and W. Tanner Allread. The answers they provide to this question turn constitutional history in a new direction: rather than considering the relationship of Native peoples to the Constitution through the perspectives of Anglo-American drafters, we are asked to listen to the voices of Native peoples themselves as they scrutinized and debated the new Constitution and then eventually utilized it, despite their misgivings, to try to defend their rights to property and sovereignty. The article makes a strong case for expanding our definition of constitutional discourse to include the reactions and engagement of Native peoples, many of whom were well aware of the legal sea changes afoot during the Founding Era and were concerned about the impact of those changes on their communities.
Ablavsky and Allread are straightforward about their aims. They are interested not only in shedding light on the evidence of constitutional discourse – which they draw primarily from research on several well-known Native nations in the South, Midwest and Northeast – but also convincing readers of the broader theoretical and methodological payoff. As they write, “The goal is less to offer a definitive account than to provide proof of concept: to show that we can, in fact, incorporate these voices into our constitutional histories.” (P. 248.) Ultimately, the authors deliver on their promise, encouraging us to move outside of rigid formulations and consider the wider reach of constitutional discourse. Continue reading "Constitutional History in the Middle Ground and Beyond: Indigenous Perspectives"
Jul 12, 2023 Rebecca RoipheLegal Profession
As faith in government institutions plummets, the legal profession continues to ponder what it can do to reverse this trend. Bar association talks and panel discussions tackle what role the profession can play in upholding the rule of law and democracy. Most of these discussions are theoretical. Some are grounded in constitutional law and the rules of professional conduct, but few draw on empirical work to answer this critical question. Matthew Kim begins to fill this hole with his article, For Appearance’s Sake: An Empirical Study of Ethical Dilemmas in the Legal Profession, which draws on original data to identify when the public loses faith in lawyers and judges.
So much of the law governing lawyers rests on untested empirical assumptions. Kim questions some of these hypotheses and intuitions, drawing useful conclusions for lawyer regulation in the process. Kim asks when private lawyers, judges, and prosecutors ought to be sanctioned for the appearance of impropriety. He does so by setting out to understand what it is that leads the public to lose faith in the legal system. In other words, what sort of behavior by lawyers triggers a decline in confidence in the judicial process? Not only does his article begin to answer this relevant and pressing question, it also provides a roadmap for addressing similar unproven assumptions that form the cornerstone of the system of lawyer regulation. Continue reading "So it Seems"
Jul 11, 2023 Pamela SamuelsonIntellectual Property Law
Peter Henderson, Xuechen Li, Dan Jurafsky, Tatsunori Hashimoto, Mark A. Lemley & Percy Liang,
Foundation Models and Fair Use, available at
SSRN (Mar. 27, 2023).
ChatGPT, Midjourney, and Copilot are among the numerous generative AI systems launched in the last year or so. They have attracted a huge number of users as well as several lawsuits. Among the lawsuits’ claims are that the makers of these systems are direct and indirect infringers of copyright because of their use of millions of in-copyright works as training data and because outputs of these generative AI programs are infringing derivative works.
At the core of these AI systems are foundation models on which the authors focus in their fascinating new article. They define this term as “large pre-trained machine learning models that are used as a starting point for various computational tasks,” including generative AI systems that may produce text, images, and/or software code in response to user prompts. The article identifies various actors who contribute to elements of these AI systems, including data creators, data curators, model creators, model deployers, and model users. Continue reading "Generative AI Meets Copyright"
Jul 10, 2023 Mathilde CohenInternational & Comparative Law
Gráinne de Búrca, Rosalind Dixon, & Marcela Prieto Rudolphy, Engendering the Legal Academy, 22 Int’l J. Const. L. __ (forthcoming, 2023).
(Professor Jill C. Anderson and Professor Mathilde Cohen are equal co-authors of this article.) Law professors, consider: demographically speaking, who on your faculty tends to be widely published and cited, consume the most airtime at meetings and workshops, and hold tenured positions, perhaps with an endowed chair? According to Gráinne de Búrca, Rosalind Dixon, and Marcela Prieto Rudolphy’s insightful new article, Engendering the Legal Academy, the answer is likely to be—regardless of the country in which your law school is located—professors who identify as cismen. By contrast, they maintain that people who identify as women, especially women of color, are overrepresented among non-tenure track writing and clinical instructors and perform a disproportionate share of service roles while struggling to keep up with research “productivity.” In a field that proclaims a commitment to equality, yet whose 50 all-time most cited scholars include only two women (per U.S. data from 2021), a “gender gap” persists.
The article builds on work by Meera Deo and others who have examined race and gender inequality in U.S. legal academia. We focus here on what we see as two distinctive contributions, one that broadens the conversation and one that deepens it. First, it brings an international and comparative perspective into view. The authors draw on a mix of theoretical and empirical work, overlayed with their personal experiences, to show that women’s lower pay, lesser job security, higher teaching and service demands, and lack of scholarly recognition are features of law schools worldwide. Second, the article advances “non-consequentialist” justifications for reform. Instead of fixating solely on who these inequalities are bad for, it argues that, as a product of oppression and epistemic exclusion, the gender gap deserves attention because it is bad period. The argument travels well to other forms of social subordination. Continue reading "The Legal Academy’s Gender Gap"
Jul 7, 2023 Zack BuckHealth Law
As the Public Health Emergency triggered by the COVID-19 pandemic has come to an end, one wonders whether legal changes brought about by the pandemic—specifically, regulatory changes that have greatly impacted Americans’ health care access over the last three years—will endure. While the use of telemedicine—defined as “the delivery of healthcare from a distance using electronic information and technology”—during the pandemic greatly broadened access to important health care services for homebound patients, it also provided an opportunity for new ways to exploit the system and commit health care fraud. In her 2022 article Telemedicine Scams, Professor Katrice Bridges Copeland documents the fraudulent practices that impacted telemedicine and provides prescriptions for combatting it as we move into the post-pandemic future.
As the changes brought about by the last three years may lead to a permanent regulatory reorganization, Copeland’s observations are incisive and suggestions are vital. Indeed, as regulators seek to prioritize goals in a post-COVID era and providers and patients grapple with continued reliance on telemedicine to solve access challenges, the changes brought about in health care delivery are likely here to stay. As Copeland writes, “[o]nce the Public Health Emergency is over, it will be impossible to put telemedicine back into a box and shut the lid.”
Professor Copeland’s article—the first to address fraud in telemedicine—is a holistic and complete treatment of a pernicious problem in America’s health care system. She accomplishes her goals through four main sections. Continue reading "Health Care Fraud’s Next Frontier"
Jul 6, 2023 Sergio ParejaTrusts & Estates
Law professors have the luxury of devoting time to thinking about ways to improve the law. Often this means looking at niche issues that may not arise with much frequency but that remain important. Professor William Drennan has done this quite well in his interesting article, Restricting Funeral Expense Deductions. The article focuses on the narrow issue of the deductibility of extravagant amounts spent at death by decedents who want to build monuments to themselves. While he does not argue that the law should prevent people from using their money for these expenses, his primary point is that society should not offer them a tax subsidy to do so because it promotes socially undesirable expenditures.
Part I of the article discusses average burials in the United States, extravagant burials in general, and the costs of extravagant burials to society. These costs include the tying up of land, the consumption of natural resources, and environmental damage due to the release of embalming fluids as well as other chemicals and metals into the ground, not to mention the environmental impact of using metals and cutting down trees to build ornate coffins. Continue reading "A Proposal to Limit the Deduction of Funeral Expenses"
