Yearly Archives: 2023
Nov 22, 2023 Tom SimmonsLexElder Law
David Horton & Reid Kress Weisbord,
The New Undue Influence, __
Utah L. Rev. __ (forthcoming 2024); Rutgers L. Sch. Rsch. Paper, available at
SSRN (February 24, 2023).
In The New Undue Influence, Professors Horton and Weisbord contend that a newfangled sort of undue influence has recently emerged. As a means to challenge testamentary gifts, undue influence has endured its share of critics who claim it often takes the form of prejudiced views of “unnatural” objects of the donor’s bounty—such as same-sex spouses or age-differentiated partners. The popularity of undue influence once seemed to be fading. But the doctrine has now developed new teeth, resulting in a more effective tool for unwinding bequests produced by improper pressures on vulnerable, often elderly, testators.
This reinvigoration of undue influence can be discerned, Horton and Weisbord explain, in three areas. First, undue influence claims have been economically incentivized in some states by means of legislatively authorized fee-shifting as well as double damages (“a punitive makeover”) (P. 33) along with a relaxation of the standing rules governing who can bring a claim. Second, an evidentiary makeover has generated presumptions for claimants when the alleged culprit stood in a confidential relationship with the testator. Third, coupling undue influence with a new cause of action—elder abuse—can enhance the leverage of claimants with more generous statutes of limitation. Tracing these three related developments alone would constitute an important piece of scholarship. But the second half of The New Undue Influence also introduces an empirical analysis of these trends. Continue reading "Ultramodern Undue Influence"
Nov 21, 2023 Eli WaldLegal Profession
After the JD (AJD), is a national longitudinal study of legal careers in the United States, which tracked the professional lives of more than 4,500 lawyers during their first twenty years after graduating in 2000 and passing the bar exam. The first wave of interviews was done in 2002-3; the second wave in 2007; and the third wave in 2012-13. Subsequently, employment data for respondents has been updated through web searches through 2019. Some of AJD’s key findings are that female attorneys in every racial and ethnic group report higher levels of discrimination than their male counterparts; and attorneys of color, white women, and LGBTQ+ attorneys perceive high levels of workplace bias compared to white male attorneys and to respondents in other workplace studies.
Over the years, AJD researchers have published numerous articles reporting and discussing the study’s findings. Now, The Making of Lawyers’ Careers collects some of the study’s main findings. The book is organized in four parts: The Structure of Lawyers’ Careers, which revisits and explores the reality of lawyers in the United States clustering in individual and corporate “hemispheres” of practice; The Narratives of Lawyers’ Careers, which tells the stories of law firm, solo, in-house and government lawyers; Inequalities of Race and Gender, which investigates inequalities in the practice of law; and Public Roles and Private Lives, which studies public service, pro bono and lawyers’ satisfaction. Continue reading "The Making of Lawyers’ Careers"
Nov 20, 2023 Sergio J. CamposCourts Law
Richard Marcus,
The Magnetic Pull of American Discovery: Second Thoughts About American Exceptionalism,
in Proceso Civile e Costituzione (2023) available at
SSRN (Oct. 4, 2023).
Recently I have looked internationally to address the civil procedure problems that keep me up at night. There are other legal systems, after all, and the U.S. way of doing things is not the only (or even best) way. Comparing procedural systems may reveal things about our own system that are easy to miss. One is reminded of the David Foster Wallace story about fish in water:
There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes “What the hell is water?”
Rick Marcus, a true master of the field, helps us notice the water of discovery with an article written for a festshrift honoring Italian procedural scholar Nicolo Trucker. Marcus speaks from a position of significant authority. Along with being a co-author of the leading civil procedure treatise and a leading procedure casebook, Marcus serves as the reporter for the Advisory Committee on Civil Rules, the ad hoc committee responsible for review and amendments of the Federal Rules of Civil Procedure. Continue reading "How is the Discovery Water Here?"
Nov 17, 2023 Kunal ParkerLegal History
Rules are everywhere. Given not only the immense variety of rules, but also the great variety of registers through which rules might be understood, one might well ask: is a historical account of rules even possible? In Rules: A Short History of What We Live By, the historian of science Lorraine Daston takes on this daunting task.
Even as she restricts herself largely to the Euro-American world, Daston ranges across a truly dazzling array of rules: rules of conduct in medieval monasteries; the forms of ancient and modern algorithms; the changing structure of recipes in cookbooks; sanitary and traffic regulations in early modern cities such as Amsterdam, London and Paris; the changing rules governing work; the rules of language and grammar; the relationship between law and equity; the emergence of ideas of natural law and laws of nature; the career of casuistical reasoning; notions of sovereign exceptions in political theory; and a great deal more. This is in itself a considerable scholarly achievement. Continue reading "Thick and Thin Rules"
Nov 16, 2023 Brian BixJurisprudence
Andrew Halpin,
The Systematization of Legal Norms: A Response to Navarro and Rodríguez,
in Jurisprudence in the Mirror: The Civil Law World Meets the Common Law World (Luka Burazin, Giorgio Pino & Kenneth Einar Himma, eds., forthcoming), available at
SSRN (Feb. 15, 2022).
A forthcoming collection, Jurisprudence in the Mirror, displays similarities and differences in both practice and theory across the divide between civil law legal systems (e.g., those of Continental Europe and Central and South America) and common law legal systems (like those of U.S. and the UK). In the book, each chapter offers civil law scholars discussing a single topic of legal theory or legal practice (e.g., legal validity, sources of law, and legal interpretation, and legal reasoning) followed by a commentary on the chapter by common law scholars. In The Systematization of Legal Norms: A Response to Navarro and Rodríguez, which will appear in Jurisprudence in the Mirror, Andrew Halpin represents the common law world, and is commenting on civil law scholars, Pablo Navarro and Jorge Rodríguez, who had as their topic, deontic logic.
By way of background, deontic logic, the logic of norms (including legal norms), is an oft-discussed topic in civil law countries, but one that has been given relatively little attention in common law countries. There are well-known complications to the project of deontic logic: e.g., norms themselves (e.g., “do not park here”) do not seem to be the sort of things that can be true or false, in which case, how is a logic of norms possible? One standard response–a response adopted by Navarro and Rodriguez (P. 7)–is to move from norms to norm propositions (e.g., “the law states: ‘do not park here’”), where such propositions do seem subject to characterization as true or false. Halpin’s argument in this piece, however, is not focused on the abstract level of whether or how logic is possible about normative matters, but rather on a more concrete level, regarding Navarro and Rodriguez’s effort to show that deontic logic is useful in understanding and developing the law (in either civil law or common law legal systems). Continue reading "A Challenge to Deontic Logic"
Nov 15, 2023 David FagundesIntellectual Property Law
Christopher Buccafusco & Rebecca Tushnet, Of Bass Notes and Base Rates: Avoiding Mistaken Inferences About Copying, __ Hous. L. Rev. __ (forthcoming, 2023).
Some years ago I attended a presentation by a musicologist who specialized in giving testimony in copyright litigation. Here’s how he tried to grab the audience: First, he would play a clip from a well-known track by a popular musician or band. Then he would play a selection from an earlier, lesser-known track by an obscure musician or band that sounded similar to the first clip, all while giving the audience a wide-eyed stare. The impression this created was intentional and unmistakable. Clearly the well-known artist had copied from the lesser-known one!
The audience, mostly laypeople, certainly bought it, based on the gasps that accompanied the presenter’s schtick. I did not, and left frustrated that the musicologist-turned-expert-witness had tricked the audience into thinking that he had exposed several instances of egregious copyright infringement. I knew something was wrong but had difficulty putting my finger on just what was the problem with the presenter’s move.
Thanks to Christopher Buccafusco and Rebecca Tushnet’s sparkling essay, Of Bass Notes and Base Rates: Avoiding Mistaken Inferences About Copying, I finally have a clear picture of the error that afflicted that presentation and so much copyright litigation. As the authors explain, the application of copyright’s substantial similarity problem suffers from base rate neglect, which causes courts and litigants to significantly overstate the likelihood that a defendant copied from a plaintiff. Continue reading "All About That Base Rate"
Nov 14, 2023 John C.P. GoldbergTorts
A.I. in the form of Large Language Models (LLMs) is altering the ways in which we work, learn, and live. Along with their many upsides, an already familiar downside of LLMs is their propensity to “hallucinate” – that is, respond to factual queries with predictions or guesses that are false yet proffered as true. And some of these hallucinations are not merely false but defamatory. For example, if one were to query an A.I. program: “Of which crimes has Professor X of ABC Law School been convicted?,” it might respond with a fabricated list of offenses. When defamatory hallucinations occur, who faces (or should face) liability, and on what terms? In Large Libel Models? Liability for AI Output Eugene Volokh lays out with great care a detailed roadmap for answering these questions.
Much of Professor Volokh’s article is devoted to considering and rejecting grounds for supposing that creators and operators of A.I. models enjoy blanket protection from defamation liability. First among these is an argument based on the tech industry’s best friend: Section 230 of the federal Communications Decency Act (“CDA 230”). As courts have interpreted it, this statute confers broad immunity on internet platforms for defamatory content created by third parties that they host or provide. As such, Volokh persuasively argues, CDA 230 will typically be of no help to A.I. companies, because, even if their models have been trained on third party texts, it is the programs, not a third party, that generates the defamatory content. Continue reading "Defamation by Hallucination"
Nov 13, 2023 Leah LitmanConstitutional Law
Jessica A. Clarke,
Sex Discrimination Formalism, __
Va. L. Rev. __ (forthcoming 2023), available on
SSRN (Aug. 13, 2023).
What is sex discrimination? Or, more generally, what is discrimination?
This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.
In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic). Continue reading "Toggle Boggle"
Nov 10, 2023 Kristen StiltInternational & Comparative Law
It is a rare event to begin reading an article and soon realize that the approach the author is taking is so novel, so creative, so analytically precise, and indeed so brilliant that it should redirect and reshape an entire field of study. I am pleased to jot about an article that does just that: Saskia Stucki’s Animal Warfare Law and the Need for an Animal Law of Peace: A Comparative Reconstruction. Stucki begins with a short quote from George Orwell’s 1984: “War is peace.” This is far more than a catchy epigraph; it strikes at the heart of the main problem with how humans treat animals in law and society all over the world today. In many or even most jurisdictions, what is typically called “animal welfare law” seemingly refers to laws intended to ensure the welfare of animals. As Stucki argues so clearly, that is a seriously flawed understanding of the situation of animals. Most animals are used and exploited by humans for human desires, and the largest number of animals by far are ones whom humans raise to kill for food. What does welfare possibly mean when we are talking about use, exploitation, and slaughter? For proponents of an animal welfare strategy, it means reducing suffering.
For some animal advocates, there is no chance of providing any meaningful welfare in these situations, and it is Orwellian to say that an animal was killed for food in a high welfare way, or that the welfare needs of an elephant in a circus were attended to when the only way to make elephants perform entirely unnatural tricks is through brute force in training. To actually improve the condition of animals demands recognition that they are rights holders and actual implementation of basic rights: the rights to liberty and bodily integrity, for example. Getting the animal out of the cage altogether, not just a more comfortable cage. These two approaches may seem to be running on different tracks and moving in different directions, and never the twain shall meet. This article rejects the notion that animal welfare law and animal rights are “competing and mutually exclusive paradigms for the legal protection of animals.” (P. 9.) The brilliance of this article is that Stucki does not merely take down this notion. She shows that the two approaches are instead “distinct yet complementary bodies of law” (P. 9) by clearly and precisely analogizing the laws regarding animals to the laws regarding war. Continue reading "War is Peace"
Nov 9, 2023 Goldburn MaynardTrusts & Estates
The modernization of probate codes has been a slow and fraught proposition. States have long set different requirements for formalizing wills. To this day there are still states that require strict compliance with all formalities, including that a will be in writing, that it be signed, and that it also be signed by two witnesses. The COVID-19 pandemic forced legislators into an uncomfortable and reluctant embrace of the twenty-first century. In his recent article, Professor Richard F. Sorrow tracks the unprecedented if clumsy implementation of two controversial reforms of traditional wills: remote attestation and electronic wills.
For centuries, in both England and the United States, the steps required to execute a will had to be followed precisely. A small technicality or flaw could invalidate a will. Perhaps a witness was not in the room at the same time as the other witness or the testator signed the will in the wrong place. As Storrow underscores, society’s main concern was distinguishing between authentic and fraudulent wills. England’s influential Wills Act of 1837 attempted to get it right. To ensure that the will represented the wishes of the testator, without interference from anyone else, courts construed the Act to require strict compliance with all of the formalities. This weeded out many fraudulent wills but also some authentic ones. In fact, the application of strict compliance sometimes led to dispositions that were very different from those the testator intended. Continue reading "Socially Distanced Wills"
