A Gendered Right to Counsel?

Kathryn A. Sabbeth and Jessica K. Steinberg, The Gender of Gideon, 69 UCLA L. Rev. (forthcoming, 2022), available at SSRN.

The civil and criminal justice systems are built on an adversarial model, but only in the criminal sphere does the defendant possess a constitutional right to representation at public expense. As a result, while representation is the default in criminal cases, more than three quarters of civil cases involve an unrepresented party.

That disconnect flows from the Supreme Court’s decisions in Gideon v. Wainwright and Lassiter v. Department of Social Services. Gideon held that the Constitution guarantees a right to counsel for a defendant facing imprisonment for a criminal offense, regardless of the nature of the crime or the length of the sentence. Lassiter held that the Constitution does not provide the same guarantee for a parent facing the termination of her legal relationship with her child.

What does any of that have to do with gender? Quite a bit, Kathryn Sabbeth and Jessica Steinberg explain in The Gender of Gideon. Continue reading "A Gendered Right to Counsel?"

The Path Toward Corporate Accountability on Human Rights

Corporate law readers: Do not let this excellent new work by Erika George escape your attention. It is a book focused on human rights. But make no mistake it is about corporations and it richly deserves a spot on your reading list.

The motivating problem in this area is relatively well understood: global human rights slip through the cracks of different regulatory regimes. As Professor George explains: “[C]orporate law fails to adequately address the external effects of the modern corporation and its relationship to society.” Further, “public international law fails to adequately govern the conduct of private nonstate actors.” Multinational corporations influence the ability of many millions of people to enjoy human rights, but these corporations are not currently understood to have the requisite international legal personality to become a party to an existing, binding international human rights treaty. Global competitive pressures discourage home and host states from adopting a level playing field with high standards. Efforts at creating a new, legally-binding international treaty to regulate business have been unsuccessful. The U.S. Supreme Court has narrowed access to courts under the Alien Tort Statute and litigation has proven an unreliable source for a remedy to human rights abuses. Continue reading "The Path Toward Corporate Accountability on Human Rights"

Remedying Offensive Internet Conduct

Eric Goldman, Content Moderation Remedies, __ Mich. Telecomm. & Tech. L. Rev. __ (forthcoming, 2021), available at SSRN.

What are the appropriate remedies when Internet services, such as Twitter, Facebook, and YouTube, publish anti-social user content? Although regulators and analysts have pondered issues such as what constitutes offending content and who should decide the question, the issue of appropriate remedies needs development. This important question is the subject of an excellent article, Content Moderation Remedies, by Eric Goldman. Notwithstanding that the dominant strategy has been removal of the offending content, Goldman urges a more nuanced approach. He compiles useful and comprehensive examples of alternative remedies short of removal that Internet services already have employed and develops a helpful framework for determining when such remedies may be superior.

Content Moderation Remedies focuses on Internet services’ decisions on remedies, not on legal regulation. The article points out that although content may be illegal, Internet services most often are free from liability under Federal law.1 Services therefore enjoy some discretion in formulating appropriate remedies for offending content. Even if content is legal, services have discretion under their own house rules on how to deal with offensive material. Continue reading "Remedying Offensive Internet Conduct"

Perils of the Growth of Executive Power Over Immigration

Adam Cox & Cristina Rodriguez, The President and Immigration Law (2020).

Over the last few months, President Joe Biden has granted Temporary Protected Status (TPS) to some 300,000 Venezuelans living in the United States and 100,000 Haitians. As a result, these people will be able to remain in the U.S. without fear of deportation for another 18 months. Once again, the fate of hundreds of thousands of people fleeing oppression, poverty, and violence turned on the will of a single man. Yet, important as they were, Biden’s TPS decisions attracted little public attention beyond the community of experts and others who follow immigration issues closely. That is in large part because we have grown so used to the idea that enormous swathes of immigration law and policy are under the control of the White House. The recent TPS decisions are just the latest manifestation of this trend.

Adam Cox and Cristina Rodríguez’s book The President and Immigration Law is likely to become the definitive work on the growth of executive power in this field. As they describe, the executive branch has come to wield vast discretionary power over immigration policy, even though nothing in the text or original meaning of the Constitution grants the president that power. At the time of the Founding, the dominant view was that the Constitution did not give the federal government any general power to exclude and deport immigrants at all, much less that such authority would come to rest in the hands of a single person and his subordinates. Continue reading "Perils of the Growth of Executive Power Over Immigration"

Unearthing the Lost World of APA Adjudication

Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. __ (forthcoming), available at SSRN.

A couple years ago, Melissa Wasserman and I charted the new and old worlds of formal agency adjudication. The old world, we explained, consisted of the traditional formal adjudication framework under the Administrative Procedure Act (APA), with a trial-like hearing before an administrative law judge (ALJ). Drawing on the work of Michael Asimow, Kent Barnett, and others, we explained that the new world is more diverse and varied. Hearings do not take place just before the nearly 2,000 ALJs in the federal system, but also before more than 10,000 administrative judges, hearing officers, and examiners who are not governed by the APA’s formal provisions. We argued that, in both the old and new world, agency head final-decisionmaking authority remains the standard (and preferred) model—something the Supreme Court in United States v. Arthrex seemed to suggest may be constitutionally required earlier this year.

Another way to conceptualize the old and new worlds is that there is a type—or mode—of agency adjudication (Type B) between the APA’s “formal” (Type A) and “informal” (Type C) modes. In recent years, much scholarly inquiry has focused on the distinctions between Type A and Type B, including an entire issue of the Duke Law Journal. Despite this sustained attention, it turns out that our understanding of adjudication under the APA may be based on a historical misunderstanding. In The Rediscovered Stages of Agency Adjudication, Emily Bremer examines the historical record and concludes that, at the APA’s founding, “informal and formal adjudication were not viewed as alternative modes, but rather as consecutive stages.” It is not often that an article requires a field to fundamentally reconsider its foundations. Yet, Bremer’s Rediscovered Stages is such an article for administrative law (and agency adjudication in particular). Continue reading "Unearthing the Lost World of APA Adjudication"

Deconstructing Shareholder Climate Activism: Why Institutional Investors Are Bullying Carbon Majors

Madison Condon, Externalities and the Common Owner, 95 Wash. L. Rev. 1 (2020), available at SSRN.

At Chevron’s 2020 annual meeting, a majority of voting shareholders approved a resolution urging the oil giant to bring its lobbying efforts in line with the Paris Climate Agreement’s goal of limiting global warming to two degrees Celsius. What seemed like a pipe dream not long ago has become a fixture on Wall Street. Climate activism has emerged as a dominant theme at shareholder meetings in the energy sector and beyond, with some resolutions receiving nearly sixty percent of votes. In her excellent article, Externalities and the Common Owner, Professor Madison Condon draws on modern portfolio theory to offer an intriguing explanation for the changing tide in shareholder climate activism.

In recent years, concerned shareholders have garnered majority approval for resolutions calling for corporate emission reduction targets, better disclosure of climate risk, and suspension of lobbying against carbon regulation, among other climate action – often against the vocal opposition of the company’s own board. This surge in shareholder support for climate-related proposals is likely the product of a multitude of factors, including the growing sense of urgency surrounding global climate change. Professor Condon makes a compelling case that a key driver of shareholders’ newfound love for climate activism may be a paradigm shift in the approach of institutional investors to corporate governance. Continue reading "Deconstructing Shareholder Climate Activism: Why Institutional Investors Are Bullying Carbon Majors"

Let’s Have a Legitimacy Crisis about Contract Law

The last couple decades in Europe have been an exciting time for private law. European integration created a dazzling opportunity to articulate a distinctly European private law, potentially even overcoming the classic line between common and civil law.

As it happens, even before the departure of the United Kingdom from the European Union, this project failed in its more ambitious forms. Although legal convergence would fit the mandate to harmonize the common market, it turned out that there was substantial disagreement even within continental Europe about what a European private law should look like.

The quiescence of the convergence project has actually opened space for a less politically fraught and doctrinally constrained discussion of contract law in Europe. Delinked from the political will to integrate or constitutional constraints on what the basis for a common framework could be, the conversation has broadened to ask first order questions about the basis for contract law in Europe. That conversation just got a big theoretical boost from Martijn Hesselink. Continue reading "Let’s Have a Legitimacy Crisis about Contract Law"

A New Central Principle for Inheritance Law?

Felix B. Chang, How Should Inheritance Law Remediate Inequality?, 97 Wash. L. Rev. __ (forthcoming, 2022), available at SSRN.

In United States inheritance law, we typically listen to what the person with the money wants. In his provocative essay, How Should Inheritance Law Remediate Inequality?, Professor Felix Chang challenges this bedrock principle of freedom of disposition and proposes a new vision of inheritance law that centers intergenerational economic mobility instead. By linking trusts and estates to other fields, such as business and tax law, this piece raises a host of interesting questions about whether inheritance law can truly address societal wealth inequality.

Chang starts by tracing the twin histories of inheritance law scholarship and estate tax policy. He starts in the 1970s, when the estate tax was relatively expansive, and the seminal scholarship of Professor John Langbein was just taking off. Much of Langbein’s work concerns how to improve the inheritance law system by making it more faithful to testamentary intent. However, a lot has changed since the 1970s. The group Chang describes as The Repealers—a coalition of the ultra-rich, anti-tax activists, and Republican politicians—has largely been successful in significantly weakening the estate tax, as now a significant amount of intergenerational wealth escapes untaxed. At the same time, a new vein of critical legal scholarship has arisen in the legal academy. It is more concerned with questions of distribution1 and notably more skeptical about promoting testamentary intent, at least when it serves to promote dynastic wealth and tax evasion. Continue reading "A New Central Principle for Inheritance Law?"

No More Haven For Horseplay?

Kimberly D. Bailey, Male Same-Sex “Horseplay”: The Epicenter of Sexual Harassment?, 73 Fla. L. Rev. 95 (2021).

In Male Same-Sex “Horseplay”: The Epicenter of Sexual Harassment?, Professor Kimberly D. Bailey explores the depth and limits of one of the carveouts given sanction from sexual harassment liability by the Supreme Court in its 1998 decision, Oncale v. Sundowner Offshore Services1: male horseplay. In Oncale, the Supreme Court acknowledged that same-sex sexual harassment is actionable under Title VII, but also stated that horseplay among male employees was not sexual harassment. Using a “masculinities-modified” lens, Professor Bailey delves into the notion that even gender-conforming men have gendered relationships and interpersonal interactions in order to properly classify a lot of what has been presently dismissed as “horseplay” as sex discrimination in the workplace.

Masculinities theory approaches structural and other sex discrimination against women by focusing on men: how they are socialized, and how they perform masculinity. Using this lens, Professor Bailey elaborates upon the often-levied critique that Oncale would, as she put it, “reinforce[] the sexual desire paradigm.” (P. 95.) Bailey explains that horseplay is often “masculinity competition that leads to harassment among gender-conforming men.” Therefore, she concludes that gender-conforming men are deprived of a good deal of legal protection to which they should be entitled under Title VII, advocating for the abolition of the male-horseplay carveout in order to eradicate sexual harassment more broadly in the workplace. (P. 95.) Continue reading "No More Haven For Horseplay?"

Reinforcing Autonomy and Displacing Guardianships with SDMs

Nina A. Kohn, Legislating Supported Decision-Making, 58 Harv. J. on Legislation 313 (2021).

In Legislating Supported Decision-Making, Professor Nina Kohn tackles the deficiencies of the supported decision-making paradigm, beginning with its definition, which varies tremendously depending on who you ask. She defines it as “an umbrella term for processes by which an individual who might otherwise be unable to make his or her own decisions becomes able to do so through support from other people.” (P. 4.) Supported decision-making (or SDM) represents a fundamental shift in the fields of elder law and disability rights. It is an extension of the people-centered approach. SDM promoters claim that it enhances the dignity of individuals with cognitive limitations by permitting decisions to be made with them—rather than for them.

States can and should use SDM in many contexts. Individuals under a guardianship ought to be empowered to participate in decisions about their lives, their healthcare, their financial affairs, and so on. SDM can thereby permit more limited guardianships. Moreover, for higher functioning individuals, SDM can provide an alternative to a guardianship proceeding altogether. Because SDM is less restrictive alternative, it should be preferred to a guardianship whenever feasible. Continue reading "Reinforcing Autonomy and Displacing Guardianships with SDMs"

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