Monthly Archives: June 2024
Jun 14, 2024 Seth EndoCourts Law
Recent debates over reforming civil litigation frequently involve questions about the use of empirical data, the value of critical approaches, and the access-to-justice gap (especially as it relates to pro se litigants). Roger Michalski and Andrew Hammond’s Mapping the Civil Justice Gap in Federal Court marries these themes, using judicial data to uncover the collective identity of pro se litigants through an exercise of critical cartography (i.e., creating maps that detect and challenge social relations of power which “create and perpetuate inequality and inequity”).
Understanding the demographics of pro se litigants is both practically and conceptually important. In 2021, more than 100,000 cases involved pro se parties, comprising more than 25% of the non-prisoner civil docket in federal courts. These litigants must navigate a system built for lawyers, raising meaningful policy and legal questions that are largely being addressed in the dark. Continue reading "De-Othering Pro Se Litigants"
Jun 13, 2024 Matteo GattiCorporate Law
Roberto Tallarita’s recent Harvard Business Review article, “AI Is Testing the Limits of Corporate Governance,” insightfully discusses the upheaval at OpenAI last November, when its CEO, Sam Altman, was temporarily ousted by the board, a move quickly reversed to thwart his potential departure to Microsoft with key team members.
Tallarita’s piece showcases the inadequacies of traditional corporate governance mechanisms in managing the unique challenges posed by artificial intelligence (AI). His evaluation of the OpenAI board actions is based on two key observations. He asserts that conventional corporate governance design is ill-equipped to mitigate the existential risks associated with AI. This shortcoming arises from a fundamental clash between the pursuit of profit and societal goals. In scenarios where financial incentives are as compelling as they have been for a disruptive entity like OpenAI, profit motives are likely to take precedence. Notably, OpenAI diverged from typical governance by securing investments for an entity fully controlled by a nonprofit, a rare approach in the tech sector. Continue reading "What Corporate Governance for AI?"
Jun 12, 2024 Martha ErtmanContracts
Danielle D’Onfro’s article Contract-Wrapped Property, provides a new lens to understand—and counter—sham consent in clickwrap and browse wrap agreements. Judicial treatment of constructive notice as assent in online agreements, of course, greatly benefits huge companies like Amazon, Google, and AT & T at the expense of everyone else, especially consumers. The big take away of Contract-Wrapped Property is that attorneys and judges unwittingly protect a long-prohibited type of property interest—equitable servitudes in chattels—when they enforce clauses limits on liability against downstream buyers that were not parties to the original contract. According to D’Onfro, these decisions endanger the very foundations of private ordering such as ownership itself and also could undermine product liability doctrine.
Contract-Wrapped Property makes a tremendous contribution to our understandings of private ordering. By exposing this threat to previously stable property doctrine and the policies behind it, D’Onfro’s article issues a wake-up call to how doctrinal developments in contracts can upset what she calls the “private law equilibrium” between contract, property, and tort law. Continue reading "Inequitable Servitudes: Property Law Shield Against Contractual Excesses"
Jun 11, 2024 Cesar Rosado MarzánWork Law
“Do me a favor, just get your union guys, your leaders to endorse me. And I’ll take care of the rest … your current negotiations don’t mean as much as you think.” Donald Trump speaking to striking autoworkers in Michigan.
Today’s U.S. labor law scholarship typically asserts a broken or dead discipline. With a mere 6% of private sector workers in unions or covered by collective bargaining agreements, labor law appears irrelevant to most workers. Scholars thus try to come up with ideas to rebuild labor law through novel interpretations of statutory texts or through statutory reform, such as the Employee Free Choice Act and the Pro Act. While attempts to breathe new life to U.S. labor law via legal reform is important, sometimes it makes sense to reflect on how labor law as a political project came to being, how it lost its luster, and how to rebuild it. Democracy at Work: Contract, Status and Post-Industrial Justice, by Ruth Dukes and Wolfgang Streeck, a law professor and a sociologist, respectively, draws on this this tradition anchored in political economy and the social sciences.
Labor Law as Part of a Political Project
According to the authors, labor law was an essential part of a 20th century project aiming to build an entirely new political economy (P. 6). They highlight the work of American socio-legal scholar, Phillippe Selznick and German legal scholar, Hugo Sinzheimer, to explain how labor law played a key role in reconstructing institutions to sustain a bigger project for “industrial democracy.” Continue reading "Constituting Labor as an Institution for Democracy"
Jun 10, 2024 Adam HirschTrusts & Estates
As Justice Holmes observed, lawmaking consists in drawing lines. But how many lines do we need? Regarding charitable transfers, more than we have—so contends Professor Eric Kades, in a recent article.
Kades begins by observing a fundamental point that we often take for granted: as a legal category, charitability is monolithic. A transfer either is or is not charitable. Hence, an income tax deduction is either available or unavailable, depending on whether the tax commissioner acknowledges an entity or purpose as charitable. Although the exact range of purposes accepted as charitable varies among American states, and is defined independently under federal law for tax purposes, the binary nature of the classification is universal.
Kades argues that this attribute, resulting in either a 100% tax deduction or no deduction, is oversimplified. The deduction should instead fall along a continuum, depending on whether the transfer is “more or less charitable.” (P. 288.) Yet, under current law, “someone donating, say, $10,000 to a local food bank receives no greater deduction than someone donating the same amount to the National Mustard Museum.” (P. 302.) Continue reading "Revisiting the Law of Charitable Transfers"
Jun 7, 2024 Jon ChoiTax Law
John R. Brooks & David Gamage,
The Original Meaning of the Sixteenth Amendment, __
Wash. Univ. L. Rev. __ (forthcoming), available at
SSRN (February 23, 2024).
The Sixteenth Amendment is one of the most thoroughly studied texts in U.S. federal tax law—economists, historians, and luminaries of constitutional law and taxation have all sliced and diced its meaning for more than a century. Making an original discovery about the historical meaning of the Amendment has consequently taken on the dimensions of a mythic quest, like discovering an Eleventh Commandment or the secret dryer compartment containing all those lost socks.
Remarkably, this is exactly what John R. Brooks and David Gamage accomplish in their timely forthcoming article, The Original Meaning of the Sixteenth Amendment. Brooks and Gamage marshal a wide variety of evidence, including new historical evidence on the technical meaning of “income,” to argue that the income taxable without apportionment under the Sixteenth Amendment includes unrealized gains. This has huge implications for policy, given that many current and proposed taxes are imposed on unrealized gains, including some of the most important recommendations to tax the very rich. Brooks and Gamage’s work is especially timely given that the Supreme Court will rule on Moore v. United States in the next month or so, possibly deciding the constitutionality of taxes on unrealized capital gains—although Brooks and Gamage’s contribution goes far beyond the current case, especially if it is decided on narrow grounds. Continue reading "An Original Take on the Original Meaning of the Sixteenth Amendment"
Jun 6, 2024 Anita BernsteinTorts
So many ways to suffer, so few of them redressed by the law of torts. We who teach the course cover a short list. First and foremost, physical impact on the body. Damage to tangible property. Intrusions into land, almost all of them of the visible kind.
Tort puts another set of interests in a secondary or lesser category, recognizing the possibility of real harm caused by faulty conduct but simultaneously blocking recourse with doctrinal hurdles that keep most potential plaintiffs out of court. Consequential economic loss, emotional distress, reputational harm, and interference with a possessor’s enjoyment of land fall into this category of recognized-yet-mostly-unremedied types of injury. In a pair of recent articles, both of them honored by her school as outputs originating in the same project, Hila Keren argues persuasively for an addition to this tranche. Continue reading "Public Humiliation Meets Private Law"
Jun 5, 2024 Scott Skinner-ThompsonTechnology Law
The power of surveillance capitalists to know us, nudge us, and exploit us continues to expand with alacrity despite Europe’s General Data Protection Regulation (GDPR) and state privacy regulations within the United States. Likewise, consequential and concrete privacy harms (such as sexual privacy violations) and, at first glance, more ethereal but also troublesome privacy losses (such as data breaches) remain under-compensated or under-redressed. Why? And what can be done about it? Ignacio Cofone’s incredible new book, The Privacy Fallacy: Harm and Power in the Information Economy, answers those two questions with a healthy dose of realism about the stakes, the need for substantive command-and-control regulation of the information economy, and the imperative of compensatory liability.
In this beautiful and accessible book Cofone explains that, to date, efforts to rein in data exploitation and redress privacy harms have fallen short because of a few underlying fallacies about how information ecosystems work. One of those misconceptions is law’s failure to understand that many egregious privacy harms, such as online sexual harassment, don’t occur because of just one or two bad actors. Rather, the very existence of data ecosystems makes those harms possible in the first instance and then magnifies them. Glossing over the role of the ecosystem (and the companies that create that ecosystem) in perpetuating these privacy harms means that law-reform efforts targeted toward the initial privacy violator under-deter such conduct and stymie efforts to, in effect, put the cat back in the bag. To address the systematic nature of privacy harms, Cofone boldly—but rightly—suggests that modified private causes of action need to be created through statute or tort law to target the myriad corporations that enable such privacy violations. Importantly, Cofone also explains why class actions are an important part of the solution in order to provide for more efficient and comprehensive liability. Continue reading "Getting Real About Protecting Privacy"
Jun 4, 2024 Shelley Ross SaxerProperty
In her important new article, Soil Governance and Private Property, Professor Sarah Fox’s creative writing style captures the importance of soil by referencing the romantic aspects of trees and their connection to people, other trees, and a multitude of living beings including animals, birds, insects, worms, bacteria, and other microorganisms. Professor Fox suggests that local governments approach land-use planning with a goal of balancing soil health and private property ownership in a way that reflects the myriad of interconnections involved in managing and promoting soil health as a common resource.
Her selection of the story of trees to explain the connections between private property uses and environmental impacts on soil is brilliant, compelling, and makes a significant contribution to property, land use, and environmental law. Soil is an important natural resource that has received very little attention in legal scholarship. Legal frameworks have failed to address soil health at all levels of government, perhaps because “we take it for granted” or because it is not as exciting as other natural resources. In her article, Professor Fox identifies avenues of inquiry worthy of intellectual exploration with the goal of shifting the law to recognize soil as a common resource and protect soil health in the face of impacts such as erosion, biodiversity loss, and declining agricultural productivity. Continue reading "Is it a Resource or is it Property? How About Both?"
Jun 3, 2024 Marco JimenezLexRemedies
If there is one article that nearly every legal scholar is familiar with, that article would have to be Guido Calabresi & A. Douglas Melamed’s Property Rules, Liability Rules, and Inalienability: One View of the Cathedral. It was in that Article that the famous distinction between property rules (i.e., entitlements that can only be purchased in voluntary transactions) and liability rules (i.e., entitlements that can be infringed by simply paying the value of the entitlement as determined by a court) was first put forward. This idea has had a tremendous impact both within and outside the legal academy, its framework having been incorporated into numerous judicial opinions. When one thinks about this Article, one tends to think about law and economics, and how courts that have internalized this approach frequently employ such thinking to choose the most efficient rule when deciding how to protect entitlements in important areas of private law like contract, tort, and property law. What one ordinarily does not think about, however, is racial inequality, which is the focus of a new and interesting Article recently published by Yotam Kaplan in the Maryland Law Review.
The main point of Kaplan’s Article is as simple as it is powerful: because judges are tasked with the burden of choosing between protecting a party’s entitlement with a property rule or a liability rule, and because bias inevitably creeps in whenever humans make decisions, a judge’s decision must necessarily be biased as well. In the author’s own words: “Under a property rule, a right holder is allowed to determine the value of their entitlement; under a liability rule, the power to determine the value of the entitlement is taken from the right holder and given to an objective state organ. Once we recognize that state organs are not objective, but racially biased, it is clear that the move from a property rule to a liability rule is not a neutral one.” (Pp. 483-84.) Continue reading "Bias in the Cathedral"
