Nov 4, 2021 James E. PfanderCourts Law
Samuel L. Bray & Paul Miller,
Getting Into Equity, 97
Notre Dame L. Rev. __ (forthcoming, 2022), available at
SSRN.
I write to offer three cheers for Getting Into Equity, a rumination on the distinctive manner in which litigants invoke law and equity. To get into law, the authors explain, one asserts a cause of action, rooted in a Roman law conception of redress for a violation of one’s rights. To get into equity, the suitor provides a narrative account of a grievance that raises an equity in her favor. Equity may act in relatively predictable ways, but it remains fundamentally discretionary in the hands of judges or chancellors who have been asked to correct an injustice. The authors persuasively argue that the distinction has survived (if barely) the fusion of law and equity in the Federal Rules of Civil Procedure.
One immediate takeaway (as my students like to say) seems straightforward: judges asked to do equity must conduct a more flexible, less rule-bound assessment of the nature of the grievance and should not insist on codified causes of action. That may suggest that the failure of Congress to create a statutory right to sue in favor of the United States should not prove fatal to its suit for injunctive relief against enforcement of the Texas anti-abortion statute, SB8. Rather, the extraordinary nature of SB8’s enforcement regime and the apparent inadequacy of remedies at law for doctors who face a string of potential bounty-hunter proceedings might justify equitable intervention absent any statutory (or prior precedential) authority. Continue reading "Recovering Equity"
Nov 3, 2021 Gina-Gail FletcherCorporate Law
Cary Martin Shelby,
Profiting from Our Pain: Privileged Access to Social Impact Investing, 109
Cal. L. Rev. __ (forthcoming, 2021), available at
SSRN.
“Doing well while doing good” has become the mantra for a large segment of investors in today’s capital markets. In the wake of COVID-19, the Black Lives Matter movement, and the increased focus on climate change, many investors today are looking for ways to use their capital to positively impact society and address its various challenges. Responding to this demand, various socially conscious investment vehicles have emerged, such as environmental, social, and governance (ESG) investments, socially responsible investments (SRI), and social impact investing. But as these investments grow in popularity and size, it becomes necessary to question whether they are truly having the positive impact their name suggests.
In Profiting from Our Pain: Privileged Access to Social Impact Investing Professor Cary Martin Shelby explores the underbelly of socially conscious investment, focusing specifically on social impact investing. Social impact investments “seek to positively impact the environment or society at large, while simultaneously yielding a return for the underlying investors.” Because of its express and specific focus on social impact, this type of investing has the greatest potential for generating positive results for targeted communities. Yet, despite the potential benefits of social impact investing, Professor Martin Shelby argues that the public-private divide in U.S. federal securities laws creates opportunities for elite investors to profit at the expense of marginalized communities. This occurs through two interrelated yet distinct ways. Continue reading "Doing Well While Doing Good: Impact Investing & the Commodification of Marginalization"
Nov 2, 2021 Omri Ben-ShaharContracts
Manisha Padi,
Contractual Inequality,120
Mich. L. Rev. ___ (forthcoming, 2022), available at
SSRN.
Standard form contracts have long been thought to be, well, standard. One size for all. A long and distinguished line of commentary has convincingly explained why mass contracts, like mass products, are standardized, what benefits uniformity brings to business and even to consumers, and why a take-it-or-leave method of negotiating them is inevitable.
But a recent empirical line of scholarship has begun to cast doubt on that idée fixe. Standard form contracts, the new perspective suggests, are uniform in paper but personalized in practice. They are handed equally to all customers, but they merely serve as baseline for what some scholars previously called “tailored forgiveness.” In the shadow of boilerplate contracts, businesses exercise discretion and negotiate with individual parties specific accommodations and other variations from the text. Continue reading "Tailored Standard Form Contracts and Inequality"
Nov 1, 2021 Mae KuykendallConstitutional Law
Zalman Rothschild,
Free Exercise Partisanship, 107
Cornell L. Rev. ___ (forthcoming 2022), available at
SSRN.
“What God says is best, is best, though all the men in the world are against it.” John Bunyan, Pilgrim’s Progress
Zalman Rothschild has published a wonderful empirical study of patterns of voting by federal appeals court judges and district judges in free exercise cases. A soup-to-nuts feast of data, doctrine, and dilemmas for a jurisprude or, God forbid, a regular American, the Article feeds the intellect, brings cheer to the most cynical legal realists among us, and offers a glimmer of hope to a waiting world wanting to believe—in federal courts. The Article provides evidence of a shift from longstanding relative consensus about free exercise claims to a starkly partisan pattern in judicial choices around these claims. At the extreme, in recent cases involving COVID 19 restrictions, the difference is total. Judges appointed by Republican presidents find discrimination every time. Judges appointed by Democratic presidents judges never do. (P. 3.)
Rothschild’s article arrives at a moment of scholarly ferment. Discussions of the free exercise free-for-all abound. Many parse the mysteries of court doctrine. Others offer one way or another out of a thicket of controversy and vitriol. Rothschild’s merger of a wide base of knowledge and analysis rises to the top, for my money, if you wonder what’s to be done, or if you need to be educated about the latest entanglement of free exercise doctrine with the culture war. Continue reading "What Hath Judicial Minimalism Wrought? Judicial Partisanship, Free Exercise Doctrine, and the Culture Wars"
Oct 29, 2021 Michael E HerzAdministrative Law
Gregory A. Elinson & Jonathan S. Gould,
The Politics of Deference, 75
Vand. L. Rev. ___ (forthcoming, 2022), available at
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Like vaccinations, voter fraud, guns, taking a knee, and, well, everything, views on Chevron deference have become not just ideologically tinged but ideologically determined. Progressives are Chevron enthusiasts; conservatives are Chevron skeptics. Chevron is under siege, and the battle lines are familiar. Yet, on its face, Chevron is politically neutral. It increases agency power at the expense of judicial power; whether that is politically helpful depends on whether your team controls the White House or if it controls the courts. Furthermore, the current ideological array has not always been the case. When Chevron was decided, the enthusiasts were on the right and the skeptics on the left. So what is going on?
In The Politics of Deference, Gregory Elinson and Jonathan Gould explain. They provide a richly documented descriptive account of the shifting politics of deference dating back to the 1970s. The shifts are what you would expect; the team that controls the White House likes deference, the team that controls the courts does not. Except . . . the pendulum did not swing when Donald Trump became president. Elinson and Gould describe why in fact deference does have a political valence and it makes sense that conservatives are skeptical and liberals supportive, regardless of who is in the White House. Continue reading "Chevron Flip-Flops of a Different Sort — Understanding the Shifting Politics of Deference"
Oct 28, 2021 Charles A. SullivanWork Law
There’s quite a fraught history of racial “passing” in the United States, until recently almost always of African Americans passing as white. In the past several years, however, the possibility of “reverse passing” has grabbed the headlines as individuals identified at birth as white have claimed Black or other racial identities. Rachel Dolezal and Jessica Krug are familiar examples, but not the only ones. The common reaction is to cry fraud and view the individuals as acting for some kind of economic advantage, freeriders on what is sometimes called “racial capitalism.” Even absent that, such conduct necessarily entails cultural appropriation and may preempt opportunities of “real” members of the passed-for group.
It’s not surprising, therefore, that such conduct has been widely condemned, a result reinforced by the questionable motives and conduct of some reverse passers. But what if a white person truly self-identifies as Black? And what if an employer seeks to terminate her because she is not “really” Black? Continue reading "Reconstructing Race?"
Oct 27, 2021 Michael YuTrusts & Estates
Adam J. Hirsch,
Models of Electronic-Will Legislation, San Diego L. Stud. Res. Paper No. 21-014 (June 20, 2021), available at
SSRN.
A conventional paper will must be in writing, signed by the testator, and signed by two witnesses. Statutes that authorize electronic wills (“e-wills”), by contrast, largely replicate the conventional will execution formalities in a digital format by giving legal effect to electronic documents that “are never reduced to paper.” (P. 164.) As of June 30, 2021, nine American states have enacted validating statutes for e-wills, and seven more states are considering e-will legislation. (Pp. 164, 165.) Currently, only one state, Oregon, expressly invalidates e-wills. (P. 166.) While American states are only recently beginning to address the validity of e-wills, certain foreign countries have had over two decades of experience with the concept. (P. 165.)
In Models of Electronic-Will Legislation, Professor Adam Jay Hirsch surveys the current landscape of e-will legislation in the United States and argues that states’ limited experience on the ground with e-wills renders the Uniform Law Commission’s approval in 2019 of the Uniform Electronic Wills Act (“Uniform Act”) premature. To enrich our understanding of the various options for validating e-wills, Professor Hirsch examines four competing legislative models that warrant policy and empirical analysis: (1) general validating statutes, such as the Uniform Act, which create general protocols for testators to formalize an e-will; (2) limited validating statutes, which are more limited designs for treating certain electronic records as an e-will; (3) emergency statutes, which validate only e-wills that serve a specific purpose, such as creating an estate plan during an emergency; and (4) remedial statutes, which validate e-wills that are otherwise not valid but are demonstrably intended as testamentary vehicles. (P. 165.) In thoroughly analyzing each legislative model, Professor Hirsch supports (among other things): (1) rejecting general validating legislation for e-wills because legislatures need time to develop substantive rules for e-wills, (2) enacting legislation explicitly proscribing e-wills, and (3) giving time to state legislatures to evaluate different models of e-will legislation, arguing that, because, among other things, there is currently little domestic experience with e-wills, the Uniform Electronic Wills Act is premature. (Pp. 206, 231-35.) This jot summarizes only some of the substantive rules discussed by Professor Hirsch and can only hint at the impressive depth and breadth of his analysis. Continue reading "Electronic Wills Are Just Like Paper Wills, Except When They’re Not"
Oct 26, 2021 Gregory KeatingTorts
In Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, Nora Engstrom and Robert Rabin set out to isolate the essential similarities and differences between the tobacco and opioids public health crises, and to extract lessons for future crises. In both the extent of the harm that they have done—and in their slow-motion train wreck extension across decades—both crises are vast. Indeed, they have lasted so long that they are part of the background noise of our lives. Yet, there is still shock value in Engsrom and Rabin’s short summaries of just how devastating these two crises have been—and still are. We all seem to have grown accustomed to appalling baseline levels of death and devastation. Engstrom and Rabin drive this point home simply and powerfully at the beginning of their fine article.
“Since 1999, opioids have claimed nearly 450,000 American lives, including nearly 50,000 in 2019 alone, dwarfing the carnage caused by either car crashes or gun violence. . .. Opioids are on track to claim the lives of another half-million Americans within the next decade. That’s like wiping out all of the men, women, and children in Atlanta in one fell swoop.” (P. 287.) Deaths “of course, only tell a sliver of the story. . . the lives of millions more are diminished and upended. Roughly, 2.1 million Americans suffer from an opioid-use disorder, over four million Americans misuse opioids each month, and an opiate dependent American child is born every fifteen minutes.” The economic costs of all this addiction and suffering are equally staggering; they are estimated to exceed “$500 billion annually, which works out to nearly 3% of U.S. gross domestic product.” (Pp. 287-88, emphasis in original.) Continue reading "Accountability and Addictive Wrongs"
Oct 25, 2021 Margot KaminskiTechnology Law
The question of whether new technology requires new law is central to the field of law and technology. From Frank Easterbrook’s “law of the horse” to Ryan Calo’s law of robotics, scholars have debated the what, why, and how of technological, social, and legal co-development and construction. Given how rarely lawmakers create new legal regimes around a particular technology, the EU’s proposed “AI Act” (Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence and Amending Certain Union Legislative Acts) should put tech-law scholars on high alert. Leaked early this spring and officially released in April 2021, the AI Act aims to establish a comprehensive European approach to AI risk-management and compliance, including bans on some AI systems.
In Demystifying the Draft EU Artificial Intelligence Act, Michael Veale and Frederik Zuiderveen Borgesius provide a helpful and evenhanded entrée into this “world-first attempt at horizontal regulation of AI systems.” One the one hand, they admire the Act’s “sensible” aspects, including its risk-based approach, prohibitions of certain systems, and attempts at establishing public transparency. On the other, they note its “severe weaknesses” including its reliance on “1980s product safety regulation” and “standardisation bodies with no fundamental rights experience.”. For U.S. (and EU!) readers looking for a thoughtful overview and contextualization of a complex and somewhat inscrutable new legal system, this Article brings much to the table at a relatively concise length. Continue reading "The Law of AI"
Oct 22, 2021 Charlotte CraneTax Law
Ruth Mason,
The 2021 Compromise, 172
Tax Notes Fed. 569 (2021), available at
SSRN.
Only a fraction of tax law professors teach the course usually called “international tax.” For the rest of us teaching tax at a law school, the effort that technical competency in international tax requires is unsustainable, especially given the instability of that part of the law that most affects US multinational business. But every tax professor should understand at least a little bit about the ways that international tax law is changing. I recommend reading Ruth Mason’s work, most recently The 2021 Compromise, as a great way to gain competency regarding this evolution.
Mason’s goal in this piece is to contextualize recent developments in the OECD/G20’s BEPS project against the backdrop of her extensive prior work on the subject (see especially The Transformation of International Tax), and to put into perspective the changes currently underway in the international tax space. On July 1, 2021, 130 countries reached agreement in principle to Pillars 1 and 2 of the G20/OECD Base Erosion and Profits Shifting (BEPS) project. Pillar 1 concerns the allocation of taxing authority after the emergence of the digital economy and Pillar 2 is a proposal for a global minimum tax. This two-Pillar OECD project represents a second phase of the G20/OECD work on BEPS. Continue reading "Change in International Tax"
