Jul 14, 2021 Neil H. BuchananTax Law
Justice Louis Brandeis famously described U.S. states as “laboratories” in which citizens can authorize their sub-national governments to “try novel social and economic experiments.” His logic surely also applies to nations as well, with countries around the world offering a wealth of real-world experiments from which we can all draw valuable insights.
Kim Brooks knows quite a lot about comparative legal scholarship (tax studies in particular), but she understands that most people have only passing familiarity with that vast body of literature. She also understands that most every scholarly enterprise could profit from a comparative perspective but that most scholars do not have the time or inclination to become full-on comparativists. What to do? Continue reading "Comparative (Tax) Scholarship is for Everyone, and Everyone Can Make It Better"
Jul 13, 2021 Michael Froomkinzetasec
A. Michael Froomkin, Phillip Arencibia & P. Zak Colangelo-Trenner, Safety as Privacy, not available at SSRN.
New technologies, such as the Internet of Things (IoT) and connected cars, create privacy gaps that can cause danger to people. In prior work, two of us sought to emphasize the deep connection between privacy and safety, in order to lay a foundation for arguing that U.S. administrative agencies with a safety mission can and should make privacy protection one of their goals. This article builds on that foundation with a detailed look at the safety missions of several agencies. In each case, we argue that the agency has the discretion, if not necessarily the duty, to demand enhanced privacy practices from those within its jurisdiction, and that the agency should make use of that discretion.
Even without new privacy legislation, many U.S. agencies tasked with protecting safety could be doing more to protect personal privacy. Examples of agencies with untapped potential include the Federal Trade Commission (FTC), the Consumer Product Safety Commission (CPSC), the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA), the Federal Aviation Administration (FAA), and the Occupational Safety and Health Administration (OSHA). Each of these agencies has a duty to protect the public against threats to safety and thus – as we have argued previously – should protect the public’s privacy when the absence of privacy can create a danger. The FTC’s general authority to fight unfair practices in commerce enables it to regulate commercial practices threatening consumer privacy. The FAA’s duty to ensure air safety could extend beyond airworthiness to regulating spying via drones. The CPSC’s authority to protect against unsafe products authorizes it to regulate products putting consumers’ physical and financial privacy at risk, thus sweeping in many products associated with the IoT. NHTSA’s authority to regulate dangerous practices on the road encompasses authority to require smart car manufacturers include precautions protecting drivers from hacker interference with control of smart cars and from misuses of connected car data. Lastly, OSHA’s authority to require safe work environments encompasses protecting workers from privacy risks that threaten their physical and financial safety on the job. Continue reading "Testing Latest Feedreader Update"
Jul 13, 2021 Kenneth W. SimonsTorts
Erik Encarnacion,
Resilience, Retribution, and Punitive Damages, 100
Texas L. Rev. __ (forthcoming, 2021), available at
SSRN.
Most American states permit the award of extra-compensatory punitive damages to tort plaintiffs if the defendant’s conduct was especially culpable. The conventional rationales for this practice are the value of punishing such conduct and the special need to deter it. Yet these rationales are focused entirely on the defendant: they explain why a defendant should pay more than compensatory damages but do not explain why that additional punitive award should be transferred to the plaintiff. And indeed, many states, under “split recovery” schemes, require that a specified proportion of a punitive damage award be paid to the state, not to the plaintiff. But critics of punitive damage awards are not satisfied by this response: they believe that transferring any nontrivial portion of a large punitive damage award to a plaintiff gives that plaintiff an unjust and undeserved “windfall.”
Can the practice of awarding substantial punitive damages to plaintiffs be justified? The literature on the propriety of punitive damages in tort law is enormous, but that literature has paid little attention to the “windfall” objection. The objection is not especially troubling to consequentialist or law and economics scholars: punitive damage awards help incentivize plaintiffs’ lawyers to fully investigate serious wrongdoing and may offer useful additional deterrence of especially culpable conduct. But corrective justice and civil recourse theories cannot so readily overcome the windfall objection, insofar as they emphasize the close bipolar relationship between defendant’s wrong and plaintiff’s injury, and between defendant’s duty to pay damages and plaintiff’s right to receive those damages. Continue reading "A New Retributive Justification for Punitive Damages"
Jul 12, 2021 Kent D. SchenkelTrusts & Estates
Eric A. Kades,
A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”) (2019), available at
SSRN.
In a majority of U.S. jurisdictions, at least for purposes of trust law, the Rule Against Perpetuities (“RAP”) is dead. Yes, it’s true. In recent years most states either substantially weakened or completely eliminated their Rules Against Perpetuities. This fact has major implications for the wealthy, and more so for the ultra-wealthy. Freed from the restrictions of the RAP, those with the means and inclination can now create trusts that entrench great wealth within their families forever.
Eric Kades is concerned about this. In his second article addressing the potential repercussions of RAP repeal, A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”), Kades proposes a reinstatement of the RAP, this time in federal form, something he wants to call “The National Anti-Feudalism Act.” This prescription comes after he engages in a kind of predictive analysis of the imagined estate planning of the ultra-wealthy, improbably informed by his reading of evolutionary biology. According to Kades, evolutionary biology should play a “significant role” in “explaining patterns of inheritance behaviors.” Continue reading "The Case for a Federal RAP"
Jul 9, 2021 Ifeoma AjunwaTechnology Law
Danielle Keats Citron & Daniel J. Solove,
Privacy Harms, Geo. Wash. U. L. Stud. Res. Paper No. 2021-11 (Mar. 16, 2021), available at
SSRN.
Privacy law scholars have long contended with the retort, “what’s the harm?” In their seminal 1890 article The Right to Privacy, Samuel Warren and Louis Brandeis wrote: “That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection.” Other legal scholars have noted that the digital age brings added challenges to the work of defining which privacy harms should be cognizable under the law and should entitle the complainant to legal redress. In Privacy Harms, an article that is sure to become part of the canon of privacy law scholarship, Danielle Citron and Daniel Solove provide a much needed and definitive update to the privacy harms debate. It is especially notable that the authors engage the full gamut of the debate, by parsing both who has standing to bring suit for a privacy litigation and also what damages should apply. This important update to privacy law literature builds upon prior solo and joint influential work by the two authors, such as Solove’s Taxonomy of Privacy, and Citron’s Sexual Privacy, and their joint article Risk and Anxiety.
The article furnishes three major contributions to law and tech scholarship. First, it highlights the challenges deriving from the incoherent and piecemeal patchwork of privacy laws in the U.S., exacerbated by what other scholars have noted are the exceedingly higher showings of harm demanded for privacy litigation versus other types of litigation. Second, the authors construct a road map for understanding the different genre of privacy harms with a detailed typology. Third, Citron and Solove helpfully provide an in-depth discussion of when and how privacy regulations should be enforced. That exercise is predicated on their viewpoint that there is currently a misalignment of the goals of privacy law and available legal remedies. Continue reading "What’s the Harm? The Answer is Many"
Jul 8, 2021 Gilberto MorbachJurisprudence
Matthew H. Kramer,
Hart on Legal Powers as Legal Competences, 19
Univ. of Cambridge Fac. of L. Res. J. __ (2021), available at
SSRN.
As Professor Matthew H. Kramer states at the beginning of his rigorous, insightful analysis, Hart on Legal Powers as Legal Competences, “[a]s virtually everyone among the ranks of present-day Anglophone legal philosophers is aware, one of the chief complaints about Austin by Hart was that the former theorist had disregarded and obscured the major role of power-conferring norms in the structures and operations of legal systems.” (P. 1.) Indeed, Austin’s preoccupation with duty-imposing laws contrasted with his neglect of laws that confer powers, and H.L.A. Hart started his own quest for an adequate concept of law by rejecting his predecessor’s mistake. But what if Hart himself was guilty of a similar sin, at least to some extent?
Before taking up on that challenge, Kramer goes on to explore in some detail (1) Hart’s critique of Austin — in his distinction between power-conferring and duty-imposing laws — and (2) possible rejoinders from Austin defenders. Continue reading "Did H.L.A. Hart, of All People, Neglect Power-Conferring Laws?"
Jul 7, 2021 Angela BanksLexImmigration
Since the summer of 2020, Americans have been having more explicit discussions about racial hierarchy in the United States and the role of law enforcement in maintaining such hierarchy. Kevin Johnson’s forthcoming essay, Bringing Racial Justice to Immigration Law, brings that conversation to immigration law. Johnson argues that Congress, but ultimately the Supreme Court, needs to explicitly address the racial animus that has motivated the structure of immigration law in the United States. Through an examination of immigration history, the emergence of a robust immigrant rights movement, and the significant backlash from the Trump Administration, Johnson demonstrates that a positive agenda for immigration reform is required in order for the country to move towards a more just immigration system, rather than simply reverting to the pre-Trump immigration system, which was not a model for justice.
Johnson’s essay begins by mapping the racially discriminatory foundations of immigration law and the minimal role that courts have played in acknowledging and remedying such discrimination. The essay then discusses the emergence of the robust immigrant rights movement despite the fact that non-citizens are not eligible to vote. A response to the growth of the immigrant rights movement was a backlash by the Trump Administration. The next section of the essay explores the efforts undertaken by the Trump Administration to “maintain and reinforce the racial caste quality of the immigration system.” (P. 3.) The essay ends with an appreciation for the immigrant rights movement, and the claim that the goals sought by the movement will only be “meaningful, lasting, and truly transformative” if the Supreme Court jurisprudence shifts to require robust constitutional review of immigration laws and “allows the courts to serve as a check on racial animus.” (P. 3.) Continue reading "A Positive Immigration Agenda for Racial Justice"
Jul 6, 2021 Elizabeth ChamblissLegal Profession
State supreme courts claim the exclusive, inherent authority to define and regulate the “practice of law.” Based on this authority, courts have enjoined as the unauthorized practice of law (UPL) all manner of potentially helpful legal assistance by nonlawyers, including counseling, advising, and assistance with documents, as well as representation in court. When it suits them, however, it turns out that trial courts accept extensive nonlawyer assistance behind the scenes, including nonlawyer counseling of clients, preparation of pleadings, and discrete courtside assistance. Courts may even encourage and institutionalize the role of nonlawyer advocates through designated workspace and workflows. But they like to keep it on the down low.
Of course, it is not the “unauthorized” practice of law if courts allow it. And courts’ claims to regulatory authority are strongest regarding who appears before them. But what are the implications of an unacknowledged nonlawyer assistance regime? This is the question posed by Jessica Steinberg and her comadres in their study of domestic violence courts’ “quiet partnership” with a “shadow network” of nonlawyer advocates “to substitute for the role counsel has traditionally played.” (P. 1316.) Continue reading "PL on the DL: Domestic Violence Courts’ “Quiet Partnership” with Nonlawyer Advocates"
Jul 5, 2021 Allison MadarLegal History
In Race, Slavery, and the Problem of Numbers in Early New England: A View from Probate Court, Gloria McCahon Whiting makes significant contributions to the study of slavery in seventeenth- and eighteenth-century New England. She offers new insights into who made up that labor force, as well as into scholarly debates regarding the utility of quantitative analysis for historians of slavery.
Whiting examines volumes upon volumes of seventeenth- and eighteenth-century probate sources to better understand who lived and labored in Suffolk County, Massachusetts. In this, “the wealthiest and most populous county in New England,” Whiting argues that not only were indentured servants “supplanted early on by a near-complete reliance on African slavery,” but also that local Native populations “never provided a significant source of bound labor in the area.” (P. 407.) The first part of her argument is not one with which most scholars would take issue. Her assertion that local Native populations never made up a significant proportion of the enslaved labor force in the region, however, is more surprising. This argument challenges the scholarship of historians such as Margaret Newell, Wendy Warren, Jared Hardesty, and Linford Fisher, who have argued that large numbers of enslaved Natives played an important role in New England’s labor force well into the eighteenth century. Continue reading "The ‘Problem’ of Numbers"
Jul 2, 2021 Margo BagleyIntellectual Property Law
Sean Seymore,
Unclean Patents, 102
B.U. L. Rev. __ (forthcoming, 2022), available at
SSRN.
The 2018 Federal Circuit Gilead Sciences v. Merck & Co. decision is one of the rare patent cases in which a court has applied the unclean hands doctrine to withhold a remedy for infringement. Sean Seymore used this case as a launching point for a deeper and more expansive reconception of the role of the unclean hands doctrine in patent law. He suggests that a range of pre-issuance malfeasance by the patentee, not just inequitable conduct before the USPTO, should preclude relief for the offending plaintiff against all defendants.
The doctrine of unclean hands is best known in patent law as the origin of the inequitable conduct defense, which renders patents obtained from the USPTO through materially deceptive behavior permanently unenforceable against anyone. Unclean hands, however, is both broader and narrower than inequitable conduct. It is not limited to misconduct in patent prosecution, but it only prevents the patentee from enforcing the patent against the particular defendant in the action involving the misconduct; other defendants are fair game. Continue reading "Dirty Hands, Dead Patent?"
