Yearly Archives: 2023
Jun 26, 2023 Wendy WagnerAdministrative Law
Farhang Heydari,
The Invisible Driver of Policing, 76
Stan. L. Rev. __ (forthcoming 2024), available at
SSRN (June 3, 2023).
The “toothpaste tube theory” in administrative law predicts that when there are too many legal constraints placed on an agency (pressure on the tube), the agency will simply find another way to accomplish the same task more expeditiously (the toothpaste bulge moves). Examples are everywhere. The National Highway Traffic Safety Administration (NHTSA) deploys automotive recalls to avoid the travails of the rule-making process. Some agencies rely on pre-NPRM communications to shore up rule proposals and avoid the logical outgrowth test. Agencies might even rely on guidance to sidestep onerous notice-and-comment requirements for rulemaking. By following the path of least resistance, agencies can accomplish their statutory assignments more swiftly and with fewer risks.
In The Invisible Driver of Policing, which is forthcoming in the Stanford Law Review, Farhang Heydari brings the toothpaste tube theory to a new level in unveiling NHTSA’s displaced efforts at enhancing the safety of vehicle transportation. In sixty riveting pages, Heydari details how NHTSA—finding itself effectively blocked from regulating the powerful auto industry—shifted significant energies towards targeting the drivers themselves. Indeed, a whopping 80% of NHTSA’s budget is apparently dedicated to traffic enforcement. (P. 54.) Heydari then links a significant component of this enforcement to encouraging the use of “high traffic stops, ostensibly as a tack both to improve traffic safety and fight crime” (P. 2), transforming the agency into the “unexpected enabler of pretextual stops.” (P. 1.) To that end, NHTSA’s sponsored research “called for a 400-500% increase in traffic enforcement.” (P. 33.) Although Heydari’s article was intended to alert his fellow criminal law scholars to the prevalence of clandestine law enforcement by nonexpert governmental agencies (Pp. 52-55), his article is perhaps even more jolting for administrative law readers. Continue reading "NHTSA’s Incredible Journey from Industry Regulator to Surrogate Cop"
Jun 23, 2023 Henry L. Chambers, Jr.Work Law
In Regulating Marginalized Labor, Professor Mary Hoopes discusses the Equal Employment Opportunity Commission’s (EEOC) innovative approach to protecting farmworkers. She focuses on two key factors – a decentralized, entrepreneurial structure of enforcement and aggressive collaboration with advocacy organizations – in explaining the EEOC’s success. Professor Hoopes then suggests the broader implementation of those ideas could help lead to the “robust enforcement of civil rights within [other] administrative agencies.” (P. 1045.) That is a story worth telling and worth reading.
Professor Hoopes explores the special difficulties inherent in protecting the rights of farmworkers before detailing how an under-resourced EEOC helped bring justice to many farmworkers. She notes our history of agricultural exceptionalism – the exclusion of farmworkers from the protections of specific labor and employment laws – is a prime barrier to justice. For example, the National Labor Relations Act (NLRA) excludes agricultural workers from protections provided to workers who attempt to unionize, and the Fair Labor Standards Act (FLSA) exempts farmworkers from its overtime provisions. Continue reading "The EEOC’s Innovative Approach to Protecting Farmworkers"
Jun 22, 2023 Allison Anna TaitTrusts & Estates
Victoria Haneman,
Prepaid Death, 59
Harv. J. on Legis. 329 (2022).
Victoria Haneman’s recent article, Prepaid Death, is a call for change in the way that people shop for and ultimately purchase burial and funeral services as well as a plea for policy reforms that would encourage consumers to make these important decisions pre-need rather than at the time of death. At death, the time of need, family members and others involved in the funeral services selection are grieving, vulnerable, and willing to pay exorbitant amounts for things that the decedent might not even have wanted. As Haneman points out: “The pre-need consumer is cost-sensitive and far less likely to make decisions that are time-pressured or driven by guilt. Although decisions may be unfamiliar, there is time to research and familiarize oneself with options and providers — including new and innovative death care technologies that may not be on the menu of choices offered at one’s local funeral home.” She also points out that when consumers have more time to explore their options, low- and middle-income consumers benefit because of increased opportunities to access financing options.
The solution that Haneman suggests is leveraging Internal Revenue Code section 125 and flexible spending account principles. The current Flexible Spending Accounts (FSAs) program allows eligible employees to make voluntary pre-tax contributions for certain qualified benefits that do not currently include death care. One option would be to allow consumers to create a dedicated Death Care Flexible Spending Account funded with pre-tax earnings contributed to this earmarked account. A second option would be to continue using FSAs in their current form but add death care expenses to the list of reimbursable “qualified expenses.” Continue reading "Economies of Death"
Jun 21, 2023 Nora Freeman EngstromTorts
In The Civil Jury: Reviving an American Institution, authors Richard L. Jolly, Valerie P. Hans, and Robert S. Peck sound a dire—and important—warning: the jury trial has almost completely vanished from civil litigation, and its disappearance comes at great cost. While many have noted civil trials’ decline over the past century, the Report goes a step further, not only compiling data to track the jury trial’s demise, but also cataloguing reasons for it, explaining why it matters, and offering concrete ways to reverse this ominous trend.
In this Jot, I’ll focus on why those of us interested in tort law, and the role of juries in tort law, should read—and heed—the authors’ warnings.
First, a primer on the civil trial landscape writ large. As Jolly, Hans, and Peck explain, between 1962 and 2020, the percent of federal civil cases disposed of via jury trial fell from a respectable 5.5% to an almost non-existent 0.48%. And though state court statistics are spottier, the limited data that are available suggest that, in the states, civil jury trial rates have fallen from 1.8% of civil case dispositions in 1976 to just 0.6% of such dispositions in 2002 to a miniscule .09% in 2019. Further, the few trials that do occur are, on average, shorter and more constricted—with fewer jurors, stricter time limits, more bifurcation, and compressed voir dire. Continue reading "Tort Trials and Tribulations"
Jun 20, 2023 James GrimmelmannTechnology Law
Samuel R. Bowman,
Eight Things to Know About Large Language Models, available at
arXiv (Apr. 2, 2023).
Lenin did not actually say, “There are decades when nothing happens, and there are weeks when decades happen,” but if he had, he might have been talking about generative AI. Since November 30, 2022 when OpenAI released ChatGPT, decades have happened every week. It’s not just that generative AI models are now able to emit fluent text on almost any topic imaginable. It’s also that every day now brings news of new models, new uses, and new abuses. Legal scholars are scrambling to keep up, and to explain whether and how these AIs might infringe copyright, violate privacy, commit defamation and fraud, transform the legal profession, or overwhelm the legal system.
Samuel R. Bowman’s preprint Eight Things to Know About Large Language Models is an ideal field guide for the scholar looking to understand the remarkable capabilities and shocking limitations of ChatGPT and other large language models (LLMs). Bowman is a professor of linguistics, data science, and computer science at NYU, and a visiting researcher at the AI startup Anthropic. Eight Things is clear, information-dense, and filled with helpful citations to the recent research literature. It is technically grounded, but not technically focused. And if you are paying attention, it will grab you by the lapels and shake vigorously. Continue reading "Words of Wisdom"
Jun 19, 2023 Adam RosenzweigTax Law
Steven Dean,
Surrey’s Silence: Subpart F and the Swiss Subsidiary Tax that Never Was, Brooklyn L. Sch., Legal Stud. Paper No. 728, available at
SSRN (Mar. 28, 2023).
As has become almost cliché at this point, the international tax regime is facing a defining moment … spearheaded by the Base Erosion and Profit Shifting (BEPS) project of the Organization for Economic Cooperation and Development (OECD). While BEPS addresses a wide-ranging number of topics, one of its primary focuses is combating tax havens. BEPS is the successor to the 1998 OECD Harmful Tax Competition project which, unlike the wide ranging BEPS, focused almost exclusively on a “name-and-shame” campaign against tax havens. These anti-tax haven efforts can trace their history back to the enactment of “Subpart F” of the Internal Revenue Code which is typically considered the first concerted anti-tax haven effort. The intellectual force behind Subpart F was Assistant Secretary of Treasury for Tax Policy Stanley Surrey (while he was on leave from the faculty at Harvard Law). Surrey has been referred to as the greatest tax lawyer of his generation; his influence can be felt to this day throughout the tax laws of the United States and the world.
In the face of this towering presence, Steven Dean dares to ask the question “Was Surrey racist?” in his new article Surrey’s Silence: Subpart F and the Swiss Subsidiary Tax that Never Was. This question is not buried in a footnote or even in the final section but is the first three words of the abstract. The effect is palpable, in part because the reader is forced to consider the provocative question in a vacuum without the benefit of reading the article itself. As with all good use of rhetorical hyperbole, Dean effectively employs strong language to shake the reader’s assumptions and open space to consider a difficult topic in a deep and subtle way. Continue reading "Is There Implicit Bias Implicit in International Tax Law?"
Jun 16, 2023 P. T. BabieProperty
Timothy M. Mulvaney and Joseph William Singer,
Essential Property, 107
Minn. L Rev. 101 (2022).
Society is impossible without inequality.
–Napoleon Bonaparte, Emperor of the French
Is it personal choice or the society in which we live that creates unequal distributions of wealth? In Essential Property, Timothy M. Mulvaney and Joseph William Singer agree with the Emperor of the French: the source of inequality lies in the state, or, more precisely, its laws, including private property.
This observation confirms an intuitive sense that in its very essence, private property is both inequality and, that fact notwithstanding, it is not soon to disappear. Too much depends on it. And, frankly, not only is it deeply ingrained in our liberal world, but also very possibly in our DNA. While eliminating private property’s inequality might be impossible, Mulvaney and Singer argue that we can look for ways to reconfigure it so as to reduce its unequal distributions. Continue reading "What Property Makes Us"
Jun 15, 2023 Juliet StumpfLexImmigration
Keeping secrets is so middle school.
When the secret is law, though, the problems mature and proliferate. Faiza Sayed’s The Immigration Shadow Docket uncovers a nest of secret law in the Board of Immigration Appeals (BIA)’s practice of deciding almost 100% of its cases as unpublished, nonprecedential decisions. These decisions are available to government lawyers but not to immigrants or their lawyers, and that makes steam come out of my head.
The BIA decides about 30,000 cases each year, but publishes only 30 of them. Those published decisions are authored either by three-member panels, or by the Board en banc, and they lay out the legal reasoning and findings of the Board. The few published decisions are accessible to the public and citable.
The remaining tens of thousands of decisions of immigration cases are issued by single members of the Board. Sayed calls this the “immigration shadow docket.” The vast majority are summary affirmances and orders, and they cannot be cited as precedent—at least, not by advocates for immigrants. In practice, however, government attorneys and immigration judges access them and cite them in briefs and decisions. Thus, the steam. Continue reading "America’s Secret Immigration Law"
Jun 14, 2023 Veronica Root MartinezLegal Profession
Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law
Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals, __
Harv. L. Rev. __, (forthcoming), available at
SSRN (Feb. 17, 2023).
Once upon a time, when I was a 2L at the University of Chicago, every student who wanted to clerk had to first meet with a professor on the clerkship committee. In anticipation for this meeting, my fellow students and I were required to identify a list of fifty judges that we were interested in applying to clerk for. The professor then provided advice and guidance on that list and each individual student’s likelihood of success of obtaining a clerkship based on the list presented.
I remember my meeting with the professor well. I was very frightened that he might tell me I didn’t have a chance at clerking, and I really wanted to clerk. My fear was, thankfully, unfounded, as he provided me with reasoned advice about the list of judges I had presented him with. My list, I think, may have looked different than that of some of my classmates because I had included every Black federal appellate court judge in the country. I specifically asked the professor about a few of these Black judges, and I remember him saying something like the following: “Most of the Black clerks in this country are hired by Black judges. Apply to them all.” Continue reading "A Better Understanding of How to Improve Demographic Diversity in Federal Appellate Law Clerk Hiring"
Jun 14, 2023 Veronica Root MartinezLegal Profession
Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law
Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals, __
Harv. L. Rev. __, (forthcoming), available at
SSRN (Feb. 17, 2023).
Once upon a time, when I was a 2L at the University of Chicago, every student who wanted to clerk had to first meet with a professor on the clerkship committee. In anticipation for this meeting, my fellow students and I were required to identify a list of fifty judges that we were interested in applying to clerk for. The professor then provided advice and guidance on that list and each individual student’s likelihood of success of obtaining a clerkship based on the list presented.
I remember my meeting with the professor well. I was very frightened that he might tell me I didn’t have a chance at clerking, and I really wanted to clerk. My fear was, thankfully, unfounded, as he provided me with reasoned advice about the list of judges I had presented him with. My list, I think, may have looked different than that of some of my classmates because I had included every Black federal appellate court judge in the country. I specifically asked the professor about a few of these Black judges, and I remember him saying something like the following: “Most of the Black clerks in this country are hired by Black judges. Apply to them all.” Continue reading "A Better Understanding of How to Improve Demographic Diversity in Federal Appellate Law Clerk Hiring"
