Yearly Archives: 2023
Sep 14, 2023 Jennifer ChaconCriminal Law
For many years now, I have looked to the work of Devon W. Carbado for guidance on how to read, understand, and teach Constitutional Criminal Procedure. In his latest book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Professor Carbado summarizes, expands upon, and refines many of the useful insights that he has offered to his readers over the past decade in his law review articles. This book is a readable introduction to the Fourth Amendment, and one that would be a great teaching tool in a Criminal Procedure class.
Unreasonable offers a systematic critique of the Supreme Court’s interpretation of the Fourth Amendment over the past fifty years. A central claim of the book is that conduct that is often described in popular discourse as “police misconduct” is, in fact, entirely within the legal bounds of constitutional criminal policing. Courts have interpreted the Fourth Amendment in ways that allow police to engage in intrusive, preemptive, and racially discriminatory policing practices. While Carbado does not discount the problem of police acting outside of the bounds of the law, his focus is on the many ways that unreasonable police conduct is promoted and encouraged by law. His goal is to articulate an alternative vision for the boundaries of constitutional policing. Continue reading "In Search of Reason"
Sep 13, 2023 I. India ThusiEquality
Maybell Romero,
“Ruined”, 111
Geo. L.J. 237 (2022).
In her article, “Ruined”, Maybell Romero adopts an autoethnographic methodology to examine the harms judges cause by using the adjective “ruined” to describe sexual assault victims.
Romero takes us to a sentencing hearing in Utah, where she was a prosecutor for rape and sexual assault cases, and recounts how a sentencing judge referred to the rape victim as “ruined.” This experience shook her. The description of a rape victim as ruined triggered her as someone who had also experienced rape. Was she too ruined?
By explicitly centering how her personal history shaped her as a legal insider within the criminal system (prosecutor), she makes transparent what so many legal scholars try to hide—that our experiences in life shape our experiences in law. What I mean by this is who we are as people affect how we interpret the law, examine the law, advocate within it. This simple fact might be unremarkable to scholars in the humanities or other disciplines, but it is disorienting for some legal scholars who embrace the appearance of objectivity even when the substance of their work reveals subjective premises and biases that they are unwilling to confront. Professor Romero avoids this trap. Her choice to adopt an autoethnographic methodology is honest. The article openly meditates on how she personally experienced the legal phenomenon of judges’ use of the word ruined and is an example of the value of express subjectivity in scholarship. I think personal experiences can add to the expertise that one has in a subject. Transparently acknowledging that our experiences affect us as legal insiders (law professors) allows for textured legal scholarship that is informed by experience rather than fabricated from ivory towers, or even worse, rationalized and cloaked with legal doctrine when it is in fact prompted and motivated by the author’s personal biases. Continue reading "Un-Marking Rape Victims"
Sep 12, 2023 Pat GudridgeConstitutional Law
In their issue this past May, the editors of the Harvard Law Review included a very useful, very provocative student note entitled “Romer Has It.” This brief essay, never overbearing, positions its readers to think hard again and again, to challenge, to consider alternative paths. The Note is not an AI thinking machine taking over work at hand. It is akin instead to spiritual exercising, to a series of sometimes startling declaratory prods. Ignatius Loyola “pumps you up!”
I react illustratively here.
Romer v. Evans was a 1996 Supreme Court decision announcing that a Colorado constitutional amendment violated the Fourteenth Amendment Equal Protection Clause. A popular initiative, the revision decreed that the state’s law could not incorporate civil or criminal remedies–-seemingly a very wide range-–responding to adverse conduct keyed to sexual orientation. Ten years earlier the Court had decided in Bowers v. Hardwick that federal notions of due process did not prohibit state laws criminalizing acts of “homosexual sodomy.” These acts were not constitutional concerns, Justice White wrote. Seven years after Romer, Lawrence v. Texas overruled Bowers, now depicting “homosexual sodomy” as a matter of personal privacy and constitutional liberty that Fourteenth Amendment due process norms indeed acknowledged. Subsequent decisions in federal and state courts led to Obergefell v. Hodges, Supreme Court recognition of same-sex marriages as due process-protected too. Lawrence and Obergefell looked like landmarks. Famously, Justice Kennedy wrote the Court’s majority opinions in Romer, Lawrence, and Obergefell. Justice Scalia dissented, famously too. Continue reading "Now and Then"
Sep 11, 2023 Suzette M. MalveauxCourts Law
Jamillah Bowman Williams,
Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming),
available at Geo. L. Fac. Publ’n and Other Works 2407(2021).
Recent social justice movements—such as #MeToo and Black Lives Matter—have pushed mainstream American society to reckon with the ubiquity and persistence of systemic sex-based and racial inequities. At the heart of the firestorm are Black women, whose identity at the intersection of sex and race often exposes them to pervasive, but also unique employment discrimination and sexual harassment. Jamillah Bowman Williams’s Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy stands out as an exceptional examination of the how courts deal with such “intersectional” claims.
“Intersectionality,” famously coined by Professor Kimberlé Crenshaw over three decades ago, recognizes that Black women may experience discrimination distinct from how white women or Black men experience discrimination. This concept is not new—the Fifth Circuit recognized it as early as 1980. The Equal Employment Opportunity Commission (EEOC)—the agency tasked with enforcement of the Title VII of the Civil Rights Act of 1964—explicitly recognizes Title VII’s coverage of intersectional claims. Black women are overrepresented among low-income, vulnerable workers, and subjected to pernicious stereotypes rooted in chattel slavery. Continue reading "The Future of Intersectionality in Employment Law"
Sep 8, 2023 Andrew TuchCorporate Law
- Michael Klausner & Michael Ohlrogge, Was the SPAC Crash Predictable?, 40 Yale J. Reg. 101 (2023).
- Michael Klausner, Michael Ohlrogge & Emily Ruan, A Sober Look at SPACs, 39 Yale J. Reg. 228 (2022).
- Michael Klausner & Michael Ohlrogge, SPAC Governance: In Need of Judicial Review, (Nov. 19, 2021), available at SSRN.
- Michael Klausner, Michael Ohlrogge & Harald Halbhuber, Net Cash Per Share: The Key to Disclosing SPAC Dilution, 40 Yale J. Reg. 18 (2022).
- Michael Klausner & Michael Ohlrogge, Is SPAC Sponsor Compensation Evolving? A Sober Look at Earnouts, (Jan. 31, 2022) available at SSRN.
Few scholars have done more to illuminate little-understood but vitally important areas of corporate and securities practice than Michael Klausner and Michael Ohlrogge. Their work has been an essential guide to the boom in special purpose acquisition companies (SPACs). Once a remote corner of securities practice, mergers of SPACs suddenly became a mainstream method for taking companies public. And just as suddenly, they faltered. The boom having now ended, Professors Klausner and Ohlrogge ask: “Was the SPAC Crash Predicable?” It is the title of their latest article. The answer, they think, is yes.
In the article, Professors Klausner and Ohlrogge replicate much of the analysis of an earlier, critically important study coauthored with Emily Ruan. At the time, the group promised a “sober look” at SPAC transactions and presented compelling evidence that SPACs are a rigged game. That evidence attracted strong industry skepticism but has since become broadly accepted. The influence of their findings is apparent in the Securities and Exchange Commission’s proposed SPAC reforms and in recent decisions from the Delaware Court of Chancery. Continue reading "Explaining the SPAC Crash"
Sep 7, 2023 Eboni NelsonContracts
One would be hard pressed to find a law school graduate in the past half century who was not aware of the Williams v. Walker-Thomas Furniture Co. case. Many law professors consider the case, which challenges the enforceability of a cross-collateralization clause in an installment sales contract, to be a classic for its contribution to the doctrine of unconscionability. However, this elevation to “classic” status has not been without controversy and a great deal of commentary. Some scholars have questioned the continuation of teaching the case in first year Contracts due to concerns about the racial and socioeconomic issues imbedded in the case. They fear that the case perpetuates harmful stereotypes about people of color and those living in economically disadvantaged communities. Others claim that the case lays the foundation for legal remedies that will ultimately harm certain communities rather than help them. In his thought-provoking article The Bitter Ironies of Williams v. Walker-Thomas Furniture Co. in the First Year Law School Curriculum, Professor Duncan Kennedy convincingly counters this claim and asserts the importance of the case’s contribution to the unconscionability defense, which he argues ultimately benefits rather than harms people living in certain communities, specifically those living in poor Black neighborhoods.
Professor Kennedy’s article is “part of a larger project exploring the economics of housing and credit in poor Black neighborhoods” in which he “defends the range of legal initiatives that legal services lawyers and clinicians, with progressive lawyers and academic allies, have undertaken on behalf of poor Black neighborhoods against the perennial neoliberal accusation that they ‘hurt the people they are supposed to help.’” He begins his piece by discussing how professors and casebooks present and examine the case, which often involves querying whether banning the challenged clause would hurt or help poor buyers or borrowers. The ensuing discussion often includes arguments regarding the possibility of increased risk and costs for the seller that will be passed on to consumers resulting in higher sales prices or increased interest rates that will prevent some buyers from participating in the market. Professor Kennedy notes that some argue that this outcome is “especially unfortunate” for buyers like Ms. Williams who are poor and demonstrates “the quintessential case for the idea that well-meaning humanitarian policy initiatives are chronically counterproductive as well as grossly paternalist.” Continue reading "Where’s the Harm?"
Sep 6, 2023 Emily BremerAdministrative Law
Jodi L. Short, In Search of the Public Interest, 40 Yale J. Reg. 759 (2023).
Congress often instructs agencies to act in the “public interest,” but what does that mean? Does it mean anything at all? Professor Jodi Short tackles this in an important new article, In Search of the Public Interest. How one defines the term “public interest” matters, for as Short explains, it appears approximately 1,280 times in the U.S. Code. (P. 767.) Critics of the administrative state decry the term as vacuous—an indication of congressional abdication and unconstitutional delegation of legislative power. Proponents of the administrative state, on the other hand, view “public interest” standards as integral to sound regulatory schemes—a meaningful instruction to administrators that can help ensure Congress’s policy goals are achieved. The debate, which is often abstract and ideologically freighted, can seem intractable.
Short seeks to cut the Gordian Knot with an empirical analysis of how agencies have interpreted and applied “public interest” standards in the real world. She begins by offering a thorough yet concise overview of various theoretical approaches to defining the public interest, breaking them down into categories centered on substantive values, efficiency claims, and procedural arguments. This primer swiftly orients the reader to the contours of the broader debate, while providing a taxonomy for the subsequent analysis. The remainder of the article offers a real-world view of how a sampling of federal and state agencies have given the concept of the public interest content and effect. Continue reading "Finding the Public Interest (and the Rule of Law) in On-the-Ground Administration"
Sep 5, 2023 Elizabeth C. TippettWork Law
Deborah A. Widiss,
Privatizing Family Leave Policy: Assessing the New Opt-in Insurance Model,
Ind. Legal Stud. Rsch. Paper No. 506, available at
SSRN (June 13, 2023).
In this informative article, Professor Deborah Widiss guides us through a recent trend in “red” states towards authorizing employer-sponsored family leave insurance.
Unlike state paid family leave laws—which “mandate paid leave for new parents,” (P. 8), and are typically funded through a payroll tax—a privatized model permits insurance companies to offer paid family leave insurance policies to employers. Employers can then choose whether to offer coverage to their workers.
Widiss explains that paid family leave insurance is a relatively recent phenomenon. Because “the insurance market is tightly regulated,” state legislatures must first “authorize sale of the [insurance] product to individuals or companies within its jurisdiction.” (P. 16.) Continue reading "Are Family Leave Insurance Policies the Wave of the Future?"
Sep 4, 2023 Gerry W. BeyerTrusts & Estates
Many of us love and cherish our pets and want to ensure their safety even after we are gone. Some may wish to make specific accommodations for their pets via inter vivos or testamentary pet trusts. Others may “keep it simple” by merely bequeathing their non-human companions to someone they know and trust. But what happens when owners leave provisions in their wills asking for their pets to be euthanized humanely after the owners die? While most courts in the past have refused to enforce these provisions, their justifications vary from the testator’s “true” intent to public policy and the anti-waste doctrine. Kaity Y. Emerson and Kevin Bennardo provide a thoughtful analysis of some of these justifications. They ultimately conclude that the anti-waste doctrine provides the most straightforward argument against dead-hand control. They discuss background on the legal status and value of animals, dead-hand control and its limitations, relevant caselaw, and finally provide their advice on how this issue should be handled in the future.
Pets have consistently been recognized as the personal property of their owners, who are free to treat them as they wish, barring animal cruelty. Courts apply this concept by allowing claims for wrongful death or negligent harm to a pet. In these cases, an owner may recover damages stemming from economic harm, but may not recover for emotional damages or loss of companionship. While courts disagree on the amount of recovery for such charges, even mixed-breed animals can yield some amount of recovery. Like tort law, bankruptcy law also recognizes animals as property. A companion animal may be listed as an asset and is given an exemption, allowing debtors to retain their pets in bankruptcy proceedings. By looking at other areas of law, we see clearly that animals have value as their owner’s personal property. Continue reading "Protecting Pets From the Death-Hand"
Sep 1, 2023 Leslie KendrickTorts
Gregory Keating,
Irreparable Injury and the Limits of the Law of Torts in 2
Oxford Studies in Private Legal Theory 185 (Paul B. Miller & John Oberdiek eds. 2023), available at
SSRN (Dec. 8, 2022).
Gregory Keating’s absorbing and insightful new article, “Irreparable Injury and the Limits of the Law of Torts,” surveys familiar territory from a distinctive vantage. As he does in his recent book, Reasonableness and Risk, Keating invites us to reconsider the fundamentals of what tort law is for and what reasonable care looks like. In this paper, he presents these questions through a central motivating problem: reparation is one of the central goals of tort (some would say its only goal), but in many cases, “tort reparation is not fully up to its assigned task.” (P. 1.) In particular, serious physical injury and death are two harms that tortious wrongdoing may inflict but the tort system cannot repair.
Keating argues that this problem finds its clearest expression in cases of premature death. (P. 3.) He observes that common-law tort failed to address the death of plaintiffs at all, and to the extent that tort suits address it today, they do so through statutory survival and wrongful death actions. (Pp. 4-5.) Even then, generally speaking, neither action compensates for the specific harm that occupies Keating: the harm of no longer being alive. Survival and wrongful death actions may account for financial resources lost on account of tortious premature death, and loved ones may receive recompense for their own emotional harms, but hedonic damages—damages for pain and suffering or loss of enjoyment of life—are generally available only for the period in which an injured plaintiff was alive. They are not typically awarded to the dead. (P. 5.) Continue reading "What If a Moral Theory of Tort Requires Deterrence?"
