Who Feels Entitled to Assert Legal Rights?

Kathryne M. Young & Katie Billings, Legal Consciousness and Cultural Capital, 54 Law & Soc’y Rev. 33 (2020).

Consider the following hypothetical:

One day before you leave for work, an officer knocks on your door and says that there have been drug sales reported on your block. He says you don’t have to let him in, but that he’s checking the homes in the suspected area, and that it will only take 20 minutes. You are already late for an important meeting. You have nothing illegal in your house. Do you let the officer search? (P. 41.)

Chances are, if you are reading this, you would say no, or ask the officer to come back at a more convenient time. In Kathryne M. Young and Katie Billings’ study of people’s responses to five rights assertion vignettes, only 26.7% of respondents with high cultural capital said that they would comply with police requests, compared to 55.1% of respondents with limited cultural capital. (P. 45.) People with high cultural capital also were more likely to explain their responses in terms of “entitlement,” by expressing “the primacy of their own needs, rights, or desires in relation to the objective of law enforcement or the legal system.” (P. 45.) People with limited cultural capital were more likely to express “futility,” suggesting that “asserting a right would be useless.” (P. 49.) These findings have important implications for policing and criminal procedure, as well as for the role of lawyers in civil access to justice. Continue reading "Who Feels Entitled to Assert Legal Rights?"

The Internet of Beliefs and Strategies: How NGOs Fight Energy Projects in a Digitally Connected World

David B. Spence, Regulation and the New Politics of (Energy) Market Entry, 95 Notre Dame L. Rev. 327 (2019), available at SSRN.

A burgeoning literature explores the siting challenges, equity issues, and justice concerns associated with energy project development. The important role that NGOs like the Sierra Club, 350.org, or the Environmental Defense Fund play in the ensuing conflicts is widely acknowledged, yet the dynamics of NGO mobilization are relatively underexplored.  Professor David Spence’s fine article, Regulation and the New Politics of (Energy) Market Entry, goes a long way toward closing that gap, offering critical insights into NGO strategy, framing, and coordination.

Professor Spence starts by laying out the tensions resulting from the U.S. energy economy’s reliance on private investments to build and maintain the infrastructure necessary to meet the American public’s demand for energy services. These investment decisions are guided by statutes and regulations that reflect the evolving prioritization among three fundamental objectives that make up the so-called energy trilemma: affordability, reliability, and environmental performance. Historically, the first two objectives dominated but, more recently, climate change and other environmental prerogatives have emerged as the driving forces behind much energy investment. Continue reading "The Internet of Beliefs and Strategies: How NGOs Fight Energy Projects in a Digitally Connected World"

Tort Rules Versus Tort Practice: The Products Liability Controversy That Wasn’t

Aaron D. Twerski, An Essay on the Quieting of Products Liability Law, 105 Cornell L. Rev. 101 (forthcoming, 2020), available at SSRN.

Over and over, legal scholars have revealed situations in which different legal rules do not produce the different legal outcomes they portend. When states limit juries’ power to award punitive damages, juries instead award increased damages under a compensatory damage head. Catherine M. Sharkey, Crossing the Punitive-Compensatory Divide, in Civil Juries and Civil Justice 79, (Bornstein, Wiener, Schopp & Willborn eds. 2008). When states require juries to apportion responsibility between intentional and negligent tortfeasors, jurors may preserve negligence liability by apportioning more civil responsibility to a negligent party than an intentional one. Ellen M. Bublick, Upside Down – Terrorist, Proprietors, and Civil Responsibility for Crime Prevention in the Post – 9/11 Tort-Reform World, 41 Loy. L.A. L. Rev. 1483 (2008). Legal rules matter, but not as much as we may think. Other normative values intercede.

In An Essay on the Quieting of Product Liability Law, Restatement (Third) of Torts: Products Liability Reporter Aaron Twerski examines one of the most fevered controversies of recent products liability law— “whether liability for defective product design should be covered by risk-utility balancing or the consumer expectation test.” (P. 102.) Twenty years after the debate, Professor Twerski examines the difference between the risk-utility test applied in most states and the consumer expectations test followed in 17 jurisdictions. After much case analysis, Twerski concludes that the answer to the difference question in the two sets of jurisdictions is: not much. In 15 of the 17 jurisdictions that retain a consumer expectations test, Twerski could not find a single case in which the plaintiff did not introduce evidence of a reasonable alternative design. (P. 101, Pp. 111-120.) California and Florida are the outliers. (P. 120.) In California, reasonable alternative design (RAD) evidence is barred completely. (P. 121.) Continue reading "Tort Rules Versus Tort Practice: The Products Liability Controversy That Wasn’t"

Post-Sexist?

In Beyond the Bad Apple-Transforming the American Workplace for Women After #metoo, Professor Claudia Flores takes on the timeworn cliché of the proverbial “bad apple” who acts aberrantly and out of cultural context in the workplace, as well as a host of other over- and under-simplifications of elusive, pervasive workplace issues that result in the imprudent adjudication of disputes.

She begins from a very simple premise: while sex discrimination and harassment may be rife in the American workplace, there are too many structural and other impediments for any kind of meaningful, large scale individual ability to vindicate one’s rights completely under Title VII. She writes: “Complaint-based employer policies, contractually-mandated arbitration agreements, time-limited administrative exhaustion requirements, and narrow judicial interpretations of actionable conduct have created a myriad of barriers to workers seeking enforcement. For women (and some men) targeted by harassing behavior it has often been too costly–financially, professionally, and personally–to navigate a system that depends almost exclusively on individual complainants to prompt social reform.” (P. 85.) This is all too true. I often posit to my own students that society depends upon the “ripple effects” of Title VII.  The statute’s sheer existence and awareness of it as it has pervaded the news and popular culture—recall the 1980’s, during which many situation comedies had “a very special episode,” in which a character encountered sexual harassment.  Title VII’s ripples operate to chill offensive behavior in the workplace in a way in which individuals’ access to the courts to vindicate their rights simply does not. Continue reading "Post-Sexist?"

Old Frauds in New Fintech Bottles

Christopher Odinet, Consumer Bitcredit and Fintech Lending, 69 Ala. L. Rev. 781 (2018).

The COVID crisis has starkly revealed the thin line between middle-class status and destitution in the United States. As a Greater Depression looms, vital assistance from the federal government may soon expire. At that point, the unemployed may need to seek loans for necessities, ranging from rent to food to health care. Advocates for a “public option” in finance have pressed ideas like postal banking or “quantitative easing for the people,” to enable direct government provision of lending for those the market is not serving. They have met a wall of opposition, particularly from libertarian advocates of cyber finance. The tech solutionist alternative is simple: instead of direct government lending, let new financial technology (fintech) companies accumulate more data, and then they can precisely calibrate optimal loan amounts and interest rates. Algorithmic lending, cryptocurrency, and smart contracts all have a place in this vision.

Christopher Odinet’s important article Consumer Bitcredit and Fintech Lending challenges this conventional wisdom, demonstrating that some fintech business models rely on deeply predatory and unfair treatment of borrowers. Through both qualitative and quantitative analysis of over 500 complaints from a Consumer Financial Protection Board (CFPB) dataset, Odinet paints a grim picture of fintech malfeasance. Cyberlenders may be a route for financial inclusion for many—but they also pose risks that are poorly understood, and nearly impossible to protect against. Continue reading "Old Frauds in New Fintech Bottles"

The Bereaved Should Not Be Preyed Upon: Can the Tax System Help?

Victoria J. Haneman, Tax Incentives for Green Burial, __ Nev. L.J. __ (forthcoming, 2020), available at SSRN.

Dealing with the death of a loved one is one of the most stressful and debilitating experiences in most people’s lives. As Victoria J. Haneman summarizes some key empirical insights:

“After a major loss, such as the death of a spouse or child, a third of survivors will suffer detrimental physical or mental health issues. One-quarter of surviving spouses will suffer clinical depression or anxiety within the first year of loss. Grief is frequently accompanied by weight loss, anxiety, despair, hypnagogic hallucinations, temporarily impaired immune response, disorganization, and/or disorientation.” (P. 41.)

Setting aside the emotional turmoil, how do Americans deal with the practical side of these inevitable events? Not well at all.  Vulnerable people are always the target of unscrupulous grifters – such as Ryan O’Neal’s character in the classic film “Paper Moon,” who exploits grieving widows in the Depression-era Midwest – but the bigger problem is that the nominally legitimate “death industry” (in Haneman’s preferred turn of phrase) has at best a mixed record, often overcharging and upselling stunned family members who have much more important matters on their minds. Continue reading "The Bereaved Should Not Be Preyed Upon: Can the Tax System Help?"

Resistance is Not As Useless As We Believed

Daniel Farbman, Resistance Lawyering, 107 Cal. L. Rev. 6 (2019), available at SSRN.

“Resistance is useless,” said the Vogon guard to Ford and Arthur, the intergalactic protagonists of Douglas Adam’s Hitchhiker’s Guide to the Galaxy. That statement turned out to be pretty accurate. Despite Ford’s attempt at resistance through searing critique of the bureaucratic system that the Vogon guard serves, he and Arthur are summarily pushed through the airlock into the starry void.1

Perhaps what Ford needed was the lesson in Daniel Farbman’s Resistance Lawyering:  that resistance staged from within an unjust and illegitimate system, rather than from the outside, can be dramatically effective. Farbman illustrates this through examining resistance to the Fugitive Slave Act of 1850, the sharp edge of a system that shaped both the racial trajectory of this nation and our national yardstick of the meaning of injustice. Continue reading "Resistance is Not As Useless As We Believed"

The Cigarette and the State

Until the early 1980s, my high school had a smoking lounge. It was a medium-sized room off the lobby with some beat-up furniture where students could hang out, smoking their Marlboros and their clove cigarettes. There was even a king and queen of the smoking lounge, pictured in the yearbook alongside the prom’s royal court.

Today such an accommodation of smoking is unimaginable. Indeed, in most states, it would be illegal. In the past forty years, the United States transformed from a society where the cigarette represented a combination of sophistication and rebellion to one in which smokers are benighted addicts, suffering for their own moral failures. Sarah Milov’s breathtaking The Cigarette: A Political History explains how this happened. In telling this story, her narrative weaves together legal, political, and economic history in a manner that calls for a revaluation of the dimensions of twentieth-century liberalism and the nature of its decline. The book is a compelling exercise in historical synecdoche: its subject is the political history of the cigarette, but its story is that of the twentieth-century American state. Continue reading "The Cigarette and the State"

Authority in Our Time: Accounting for the Concepts of Prerogative and Equity in the Legal Order

Thomas Poole, The Strange Death of Prerogative in England, 43 Univ WAL Rev 42 (2018).

As a private law theorist, I have been captivated recently by the work of public lawyer Thomas Poole on the concept of prerogative. Poole developed his account most fully in his analytically brilliant and deeply learned book, Reason of State: Law, Prerogative and Empire (Cambridge 2015). Poole has continued to refine his thinking about the concept of prerogative in more recent work, including The Strange Death of Prerogative in England, in response to a spate of recent cases in England. What is so compelling and illuminating about Poole’s work on prerogative for a private law theorist? Private law theorists have long assumed that the most philosophically interesting questions in the field concern the structure of interpersonal rights and duties—what we owe each other. As a group, we have tended to stick to those areas of doctrine, like tort and contract, that repay close attention to such structural questions. Other areas of private law doctrine, especially property and equity, have not been not well-integrated into accounts of private law focused on interpersonal relations. That may be because they raise questions and invoke concepts outside the core of private law theory today. Equity, in particular, challenges the sufficiency of understanding private law as a framework of predictable, durable and standardized rights and duties. I may have a property right in law only to find that equity directs me to exercise it in ways the law does not require of me—or be held in contempt. I may have a contractual right to your performance of a contract but equity may prevent my enforcing it when I have led you to act to your detriment on the belief that you need not perform. Equity appears, then, to be a cluster of doctrines that lie on the outer edges of private law.

One way to chart the path forward to a more complete and unified understanding of private law –one that includes equity—is to look at how, in the context of public law, Thomas Poole has worked out the idea of the prerogative in institutional, conceptual and normative terms. The concept of prerogative, Poole argues, is best understood not as the bundle of prerogative powers that public lawyers of old enumerated nor the purely political conception of emergency powers outside the grip of law, but rather as a constitutional idea of prerogative: a distinct claim of imperative authority associated with guardianship of the State and that functions to stabilize and maintain the integrity of the legal order itself. Continue reading "Authority in Our Time: Accounting for the Concepts of Prerogative and Equity in the Legal Order"

Have Institutional Review Boards (IRBs) Become ‘Compliance Bureaucracies’?

Sarah Babb, Regulating Human Research (2020).

Research ethics governance will never be the most popular subject in health law, but its importance is hard to overestimate. A significant amount of scientific research involves human participants, whether directly (interviews, observations, or experiments on human subjects) or indirectly (use of human tissue or data). In the absence of such research, our knowledge of human health would be much worse, and so too would our individual lives and collective well-being. Medical progress is contingent on scientific research.

Before almost all forms research involving human participants can take place, though, investigators must submit their project to a committee for review on the basis of ethical soundness and compliance with rules, standards, and principles (found in laws, guidelines, and other regulatory instruments). This committee is known as a Research Ethics Committee (REC) in some countries, like the United Kingdom. In the United States, it is known as an Institutional Review Board (IRB), as the board is connected to a particular institution, be it a university, hospital, or private organization. Continue reading "Have Institutional Review Boards (IRBs) Become ‘Compliance Bureaucracies’?"

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