Yearly Archives: 2024
Jan 10, 2024 Joseph SlaterWork Law
Jeffrey M. Hirsch,
Labor Law’s Impact on the Post-Dobbs
Workplace, UNC Legal Stud. Rsch. Paper No. 4557256, available at
SSRN (Aug. 30, 2023).
Dobbs v. Jackson Women’s Health Organization, 579 U.S. 2228 (2022), meant that the ability to choose an abortion was no longer a right protected under the U.S. Constitution. Instantly, pre-existing bans or extreme limits on abortion in some states went back into effect, and other states adopted new bans and restrictions. This is likely not news to readers of this blog. What likely will be news—and useful news at that—is that labor law may help both unionized and non-unionized workers fight for and achieve abortion-related benefits at the workplace. Jeffrey Hirsch’s Labor Law’s Impact on the Post-Dobbs Workplace is a timely, informative, and well-balanced approach to this issue that I recommend to anyone interested in the intersection of workplace rights and reproductive rights.
Hirsch starts by noting that “[a]ccess to abortion and other health care depends on employers to an unappreciated degree.” That’s because most health insurance is provided by employers. Further, employer policies involving leave and scheduling can also affect abortion access. Continue reading "Labor Law and Reproductive Rights"
Jan 9, 2024 Alexander Boni-SaenzTrusts & Estates
We stand at the precipice of a major transfer of wealth: in the coming years, trillions of dollars will pass through the inheritance system to the next generation from millions of decedents. Potential beneficiaries may be tempted to engage in wrongdoing to alter or accelerate these transfers to their own benefit. In Crimes Against Probate, Kevin Bennardo and Mark Glover focus on one such type of wrongdoing: interference with wills. Whether it is through undue influence or fraud, will forgery or will suppression, the inheritance system must deal with this threat to the testator’s donative wishes.
Bennardo and Glover argue that the current legal regime does not adequately deter this type of misconduct, and they provide two major contributions to the literature. First, they offer a clever reconceptualization of the misconduct at issue as evidentiary rather than proprietary in nature. Second, they supply a concrete reform proposal, which is a new criminal offense of intentional or willful interference with probate. Scholars of both criminal law and trusts and estates will have much to learn from this cross-cutting piece of legal scholarship. Continue reading "Crimheritance Law?"
Jan 8, 2024 Ellen BublickTorts
If one party argues that another is guilty of negligence for breathing air, no court should allow that claim or defense. Why not? A court might say that breathing air is not negligent in the breach sense—it is reasonable to breathe (everyone does it) and, at least for now, its benefits outweigh its costs. Another way that a court could reject the breathing-air contention would be to say that the breathing party has “no duty” not to breathe. By saying that the party has no duty, the court would recognize an entitlement in the breather. When courts recognize that actors enjoy some entitlements in their daily lives, they cannot avoid deciding which entitlements come with the parties to court, when parties should have those entitlements, and with respect to whom they should apply.
In Professor Eugene Volokh’s important article, The Right to Defy Criminal Demands, Volokh makes the powerful claim that in both civil and criminal cases, courts implicitly do, and explicitly should, “protect defiance of criminal demands against legal liability even when such defiance can increase the risk that the criminal will harm third parties.” (P. 416.) The issue is one of principle. Volokh calls it a “right,” though in a Hohfeldian sense it may be a privilege/liberty or no-duty rule. Continue reading "The Rights That Come With Us to Court: No-Duty Rules for the Victims of Crime and Criminal Threats"
Jan 5, 2024 Stacy-Ann ElvyTechnology Law
Schools increasingly use various technologies to monitor and collect information about students. The COVID-19 pandemic, which led to a large number of school closures and a transition to online learning, has also raised alarming questions about student privacy. For instance, virtual software used during remote exams to monitor students can scan students’ bedrooms, collect data from the microphones and cameras of students’ computers, and discern students’ keystrokes. In her article, The Private Life of Education, Professor Fanna Gamal makes a noteworthy contribution to scholarship in the privacy law and education law fields by highlighting embedded assumptions and significant shortcomings in privacy law governing student data. In doing so, she advances existing debates on the legal conception of information privacy. Gamal argues that student privacy laws’ immoderate focus on nondisclosure of students’ data outside of the school context fails to effectively consider the various ways in which schools can serve as the primary perpetrators of student privacy violations. She further contends that schools’ data practices may have disproportionate negative implications for members of historically marginalized groups, such as disabled and low-income students.
Gamal expertly critiques the provisions of the Family Educational Rights and Privacy Act (FERPA). She argues that FERPA’s excessive focus on the prohibition of data disclosures outside of schools spuriously assumes that schools should, by default, receive treatment as privacy protectors that act in the best interest of students’ privacy. Gamal aptly acknowledges that FERPA’s heavy reliance on non-disclosure is not unique to American privacy law. However, after unpacking the legal conception of student data privacy, Gamal goes on to convincingly argue that student data privacy law also assumes that students do not have a significant privacy interest in “data creation, collection and recording.” (P. 1319.) Continue reading "Centering Educational Institutions as Potential Sources of Student Privacy Violations"
Jan 4, 2024 Carol Necole BrownProperty
Danielle Stokes,
From Redlining to Greenlining, 71
UCLA L. Rev. __ (forthcoming, 2024) available at
SSRN (June 8, 2023).
I like circles, don’t ask me why. Maybe I like them because they make me think about how a few inches, feet, or yards can make a world of difference. If you enclose me in a circle, you may destine me for a lifetime (even generations) of disinvestment, lost opportunity, and lost hope. These are the vestiges of redlining, a historic process in which the federal government participated in racially segregated housing beginning in the 1930s by refusing to insure home mortgages in and near Black neighborhoods.
As I prepared to teach a housing law course this summer in Cambridge, England, I thought a lot about circles and in my research, I discovered Danielle Stokes’s recent article, From Redlining to Greenlining. The title of her article harkens to the old lending maps of the 1930s — the few inches on a map between green and red, blocks or miles on the ground, and untold lost opportunities or thwarted dreams for those enclosed in the thin red circle.
A red circle drawn around a neighborhood on a lender’s map signaled high lending risk and therefore an undesirable neighborhood. Place me on the outside of this thin red circle and my economic prospects (and my family’s prospects potentially for generations) are much improved. In fact, on these same color-coded maps, areas in green signified the lowest level of lending risk and were highly recommended for lending. They were also White, racially homogenous neighborhoods. Continue reading "“Draw Me a Circle” and Where You Place Me Makes All the Difference"
Jan 3, 2024 Sara MayeuxLegal History
On the day in 1853 when Franklin Pierce was inaugurated as president of the United States, his vice president, William Rufus King, took the oath of office remotely—from his sugar plantation in Cuba, where he was dying of tuberculosis. An Alabama cotton planter, King also owned an estate on the island and was resting there in the hopes (which proved futile) that the tropical air might cure him. As Ada Ferrer writes when recounting this anecdote in her awe-inspiring, Pulitzer Prize-winning work, Cuba: An American History: “The story of the inauguration of an American vice president in Cuba is unexpected” (P. 109).
I’ll say! As the holder of an advanced degree in U.S. history, I would like to think I know a little bit about the twists and turns of American designs on Cuba, but I must admit I did not know this story. As Ferrer goes on to explain, “the spectacle of an Alabama slaveholder taking office as vice president of the United States in the heart of Cuban sugar country” is not merely a fun piece of historical trivia but exemplifies just how intertwined the island and its northern neighbor have always been throughout their respective histories, initially through the economic system of slavery and also through the persistent dreams of prominent Americans that the United States might one day annex Cuba as a territory (Pp. 109-10). Continue reading "Insights for U.S. Law Professors in the History of Cuba"
