Yearly Archives: 2023
Jan 10, 2023 Susan MorseTax Law
Under tort and agency common law, the more control a firm exerts over its workers, the more likely that workers will be classified as employees rather than independent contractors. The need to determine control prompts a line-drawing exercise and offers opportunities for firms and/or workers to manipulate the result, rather than choosing the best abstract analysis on the facts. In Independent Contractors in Law and in Fact: Evidence from U.S. Tax Returns, Eleanor Wilking constructs a huge tax-return-based dataset and uses it to show that firms appear to game the employee/independent contractor distinction, that evidence of manipulation is stronger when lower-income workers are involved, and that the tendency to classify workers as independent contractors has likely increased over time.
A lot turns on whether a worker is an “employee.” Access to retirement plans, health insurance, certain government benefits and antidiscrimination protections follow from employee status. Tax, tort, contract, intellectual property and other legal results often differ based on whether a worker is an employee. Most, although not all, legal features require firms to offer more protections and benefits for employees, as opposed to independent contractors. Thus a firm’s incentive to manipulate generally tilts towards independent contractor classification, holding all else equal, particularly for lower-income workers. Continue reading "Terms of Employment"
Jan 9, 2023 Yael LifshitzProperty
Sharing the Climate by Professor Rashmi Dyal-Chand shines a light on a surprisingly understudied, yet immensely important, aspect of the climate crisis: to a large extent, the climate crisis is all about resources. Whether fertile and livable land, healthy trees, drinkable water or breathable air, the depletion starts with resource management (or, failures thereof).
Property is the conceptual category that allows us to distribute and govern resources. So property law and concepts should be at the forefront of responding to a resource-based crisis, right? As Rashmi Dyal-Chand points out, unfortunately, at the moment, that is not the case.
The key contribution of the article is underscoring the ways in which property law could contribute to the climate discourse. Dyal-Chand calls on scholars and policymakers to examine the role property law currently plays, and the role it can play, in mitigating and adapting to the climate crisis. Continue reading "Owning (Up To) the Climate Crisis"
Jan 6, 2023 David HortonTrusts & Estates
Jeffrey N. Pennell & Reid Kress Weisbord,
Trust Alteration and the Dead Hand Paradox, 48
ACTEC L.J. _ (forthcoming 2023), available at
SSRN.
I don’t know about you, but, in all of my courses, there’s at least one topic I dread teaching. In Trusts, Wills, and Estates, that dishonor goes to the rules that govern the modification and termination of trusts. For starters, judge-made law, the Restatement of Trusts, the Uniform Trust Code, and the law of California (where I teach) march to their own subtly different drumbeat. In addition, the black letter law is filled with word balloons like “material purpose” and “general charitable intent.” Every semester, I see the subject approaching on my syllabus like an angry bull.
But when that time comes next year, I’ll be armed with Jeffrey N. Pennell and Reid Kress Weisbord’s new article, Trust Alteration and the Dead Hand Paradox. This engaging and exhaustively researched piece will sharpen the reader’s understanding of trust modification and termination. In addition, it makes three contributions to the literature. Continue reading "Trust Alteration in the Twenty-First Century"
Jan 5, 2023 John C.P. GoldbergTorts
Evelyn Atkinson,
Telegraph Torts: The Lost Lineage of the Public Service Corporation, __
Mich. L. Rev. __ (forthcoming, 2023), available in draft at
SSRN.
Evelyn Atkinson’s article, Telegraph Torts: The Lost Lineage of the Public Service Corporation, offers a fascinating look at judicial decisions and statutes from the late 1800s and early 1900s that–unusually for the time–imposed liability for negligence causing “pure” emotional distress. A typical fact pattern was as follows. A resident of a rural town would pay the local Western Union office to send an urgent telegram notifying the intended recipient that his close relative was dying. Because of Western Union’s negligence, the message was not transmitted. Bereft over having missed the last chance to commune with his dying relative, the intended recipient sued Western Union for damages. While claims of this sort often failed, courts and legislatures in Southern and Western states tended to validate them.
The paper is an effort to answer why, of all actors that caused foreseeable serious distress through their negligent acts, telegraph companies were almost uniquely vulnerable to liability, but only in certain states. Its answer has a paradoxical flavor. On the one hand, Atkinson suggests, liability was justified on the ground that Western Union–by far the dominant player in the industry–was for all intents and purposes a public utility, i.e., a powerful monopoly that provided an essential public service. As she explains, in parts of the West and South, when family members were geographically dispersed, the telegraph was effectively the only way for them to get in touch, particularly on short notice. Continue reading "When Bad News Didn’t Travel Fast Enough"
Jan 4, 2023 Daithí Mac SíthighTechnology Law
“Retrofuturism” in art and literature is a look back at the (sometimes recent) past and how the stories of the future were told. The retrofuturist aesthetic can be found in present-day theme parks like Walt Disney World’s Tomorrowland and EPCOT and in the concept of steampunk. Through retrofuturism, we try to understand what was once hoped for, often as a way of understanding success or failure and of critiquing present-day efforts and priorities.
Retrofuturist impulses are particularly important in technology law scholarship. Critical appraisals of ‘smart city’ and urban innovation projects and initiatives examine how people joined the digital with the material to imagine a better world. You can’t tell the story of the smart city without at least engaging with the tales of the city. And so, in a very real and immediate way, the literature of geography, planning, and–yes–physical architecture is a key resource for the legal scholar. In The Kind of Solution a Smart City Is: Knowledge Commons and Postindustrial Pittsburgh, Michael Madison gives us a compelling retrofuturist account of Pittsburgh, the smart city. Madison’s account of a range of projects in Pittsburgh (including those of the 21st century) tells a story that is both universal and particular, tapping into the need to understand the roads taken and not taken, and what was imagined or foreseen in the recent and not so recent past. Continue reading "There’s A Great Big Beautiful Tomorrow (For Pittsburgh)"
Jan 3, 2023 Carole SilverLegal Profession
Juliet’s soliloquy notwithstanding, how naming happens and what you’re called matters in the legal academy. In Unentitled: The Power of Designation in the Legal Academy, Rachel López illuminates the ways in which faculty titles and their corresponding categories function as drivers of inequality – an inequality that is difficult to discern because it is presented as justifiable, enmeshed within a seemingly merit-based difference that in turn is framed by the regime of tenure. Titles reflect and create difference: they function as proxies for the hierarchy inherent in the world of legal academia, and at the same time structure expectations, interactions and opportunities while signaling status. Nevertheless, these same titles are at odds with the commonalities that increasingly cut across faculty categories, and they mask the impact of different policies and perceptions that fall particularly heavily on women of color, and women generally. (P. 924.) To address these effects, López offers several concrete suggestions for law schools pursuing an anti-racist agenda.
López’s positionality matters in making this case: she is a boundary crosser, having begun her career in a non-tenure clinical role and then purposefully moving into a tenure-line role, where, among other things, she has continued her involvement with clinical legal education through teaching and administration. This history of crossing categories enables her to perceive the “problem of academic exceptionalism in the legal academy—hierarchy and exclusion are others’ problems, not our own.” (P. 925.) The orientation in the legal academy towards preserving the power and centrality of tenure-line faculty, which extends from governance to resource allocation, can be blinding to those within the system who may not perceive inequalities embedded both in the functional differences attributed to particular faculty roles and in the notion of merit that is seen as the foundation of these categories. Continue reading "“What’s in a name?”: Titles and Entitlement in the Legal Academy"
Jan 2, 2023 Kunal ParkerLegal History
Elizabeth Popp Berman’s Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy is a very smart book that deserves a wide audience. The book explores the rise to prominence of an economic “style of reasoning” in U.S. policymaking in the post-World War II decades. Between 1950 and 1980, Popp Berman shows, this style pervaded realm after realm of policymaking, from social welfare programs to the regulation of markets to the management of the environment.
The chief institutionalizers of the economic style of reasoning were not neoliberals or libertarians (these would become truly prominent in government only after the election of Ronald Reagan in 1980). Instead, they were Democrat-appointed economists and the bureaucrats they worked with and influenced. Albeit not ideologically opposed either to social programs or to market intervention, these economists and bureaucrats insisted that social goals be met as efficiently as possible and that market solutions were generally preferable to interventionist ones. Wherever possible, they pushed cost-benefit analyses and reviews within administrative agencies, urged the dismantling of early-twentieth-century market controls, and sought to achieve ends by creating markets for entitlements rather than by imposing standards by fiat. In all this, they shared much with those further to their right. Continue reading "The Economic Style"
