Oct 3, 2025 Sachin S. PandyaWork Law
Elizabeth C. Tippett & Jamillah B. Williams,
Misjudging a Reasonable Jury: Evidence that Courts Dismiss Meritorious Harassment Claims, available at
SSRN (May 7, 2025).
How often and why do judges erroneously conclude, in Title VII harassment cases, that there isn’t enough for a reasonable jury to find that the plaintiff suffered “severe or pervasive” enough harassment for Title VII liability? These questions are not easy to answer. No one can directly observe the counterfactual, i.e., how a jury would have ruled had the case gone to trial. And if deciding what a “reasonable” jury might do requires inferring what most juries, or a jury under ideal conditions, would do, then judges could still be good forecasters even if any particular jury would have gone the other way.
Enter Tippett and Williams with a study that provides serious leverage for answering these questions. They first sampled Title VII harassment case opinions in Westlaw between 1995 – 2019 (n = 81, mostly summary judgment motions) in which the court decided whether or not there was “an issue of fact on whether the conduct qualified as ‘severe or pervasive’” enough for a Title VII violation. In 53 of the 81 cases (65%), the court found that no reasonable jury could find that the conduct was severe or pervasive enough. (P. 19.) Continue reading "Deciding Whether A Reasonable Jury Would Find Harassment Severe or Pervasive Enough"
Oct 2, 2025 Kent D. SchenkelTrusts & Estates
Brian Galle, David Gamage & Bob Lord,
Taxing Dynasties, available at
SSRN (April 11, 2025).
“Only morons pay the estate tax.” That is a bit of hyperbole, of course, from Gary Cohn, the director of the National Economic Council during the first Trump administration. But those paying attention know that the federal transfer taxes don’t work very well. Instead, highly effective estate tax dodges pervade, and these techniques are particularly effective as applied to the largest estates. Brian Galle, David Gamage, and Bob Lord, in their paper, Taxing Dynasties, citing their own empirical study of data culled from the IRS, conclude that these taxes fail to reach at least $4.5 trillion of huge, family-controlled fortunes. And for this, they’ve proposed a meticulous, politically savvy, and technically brilliant prescription.
They point out that most of this $4.5 billion in transferred wealth is held in “dynasty trusts,” which are devices designed to escape wealth transfer tax for generations, if not permanently. Taxing Dynasties proposes an annual “withholding tax” on these trusts. It takes aim at trusts held by those “with more money than they can reasonably spend in a lifetime, the .01% richest citizens,” and would function as a minimum tax on those trusts. The authors’ proposal is not just an academic pipe dream. They are working with at least one Senator to devise legislation incorporating their ideas, which they expect to be introduced in Congress sometime in 2025. Continue reading "A Prescription for Taxation of Dynasty Trusts"
Oct 1, 2025 Natalie RamTechnology Law
- Andrew G. Ferguson, Digital Rummaging, 101 Wash. U. L. Rev. 1473 (2024).
- Andrew G. Ferguson, Everything-Everywhere Searches, _ G.W. J. of L. & Tech. _ (forthcoming), available at SSRN (Feb. 17, 2025).
Advances in digital surveillance technologies have posed difficult questions for Fourth Amendment doctrine. For instance, does the government need a warrant to install cameras on poles along a street to monitor who enters and exits homes? What if the government wants a list of all cell phones near a robbery scene at the time of the crime? Is the answer different if the government wants several days of data, but only about one person? What if the data comes from an app developer like Waze (or your flashlight app) or a smart home device like an Alexa, rather than a cell phone provider?
The Supreme Court has begun to address these issues in cases like Riley (barring warrantless cell phone searches during arrest) and Carpenter (requiring warrants for long-term cell phone location data). But as Andrew G. Ferguson argues in two recent articles—Digital Rummaging and Everything-Everywhere Searches—Fourth Amendment doctrine has nonetheless not kept pace with the scale of digital surveillance. In a turn to history that may prove particularly persuasive to constitutional originalists, Ferguson argues that the Founding generation’s objections to “rummaging” through general warrants provide an appropriate guiding principle for constraining surveillance in the digital age. Continue reading "Rummaging Rebooted"
