Jan 31, 2025 Charles O'KelleyCorporate Law
Kyle Edward Williams, Taming the Octopus: The Long Battle For The Soul of The Corporation (2024).
In Taming the Octopus, historian Kyle Edward Williams focuses on the evolution of the modern corporation from its birth in the early days of the twentieth century to the present. This work deftly synthesizes a vast array of historical and legal research with the author’s own archival research. The result is a fast-moving, comprehensive, and captivating story of the people and events that have shaped scholarly and political debate about, and understanding of, the corporation and its place in society as the United States gradually assumed its place as world hegemon. This is a book intended for the informed citizen but should be of special interest to teachers of Corporations and related subjects, for here the reader will encounter the giants who have affected what we think and believe about what the corporation is and how it should be governed, as well as the debates that have raged throughout the life of the modern corporation.
The book begins and ends with the imagery of the modern corporation as an imaginary sea creature, an octopus as terrifying and as untamable as the giant squid in Jules Verne’s Twenty Thousand Leagues Under the Sea. That imagery had been used in books and editorial cartoons in the first decade of the twentieth century to caricature the might of emerging business behemoths, including the Standard Oil Trust, whose tentacles reached into every aspect of American life and controlled the politicians who acted counter to the public interest as the mighty creature demanded. The public indignation and resolve to combat this evil creature is an underlying theme throughout the book, which Williams identifies with three continuing tensions in the political and cultural life of the modern corporation. Continue reading "The Continuing Evolution of the Modern Corporation: What’s Past is Prologue"
Jan 30, 2025 Nancy KimContracts
Andrea Boyack’s article, Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights, examines “problematic” provisions in consumer contracts and may be viewed as a companion piece to her previous article, The Shape of Consumer Contracts, 101 Denv. L. Rev. 1 (2023) which is more theoretical. Both articles provide a valuable contribution to the literature on boilerplate and merit attention, although I focus this review on Abuse of Contract.Professor Boyack examined the online terms and conditions of 100 companies in a variety of industries. The study aimed to answer two questions: “(A) How prevalent are boilerplate provisions that limit consumers’ legal rights? and (B) to what extent do particular companies use such boilerplate limitations?” (P. 4.) Her study is one of several in recent years taking an empirical approach to terms and conditions, including one by Samples, et.al. that I previously reviewed here.
Boyack identified four broad categories of terms: “(i) dispute resolution mandates, (ii) liability waivers, (iii) limitations on damages, and (iv) pre-authorization of unilateral modifications.” (P. 5.) For accuracy, the terms and conditions were examined twice by two different researchers during 2021-2022. The study included both public and private companies, and these 100 companies belonged to an array of sectors, including retail, financial services, social media, and travel. The study also tracked eleven types of rights-deleting provisions. According to Boyack’s study, 66% of the contracts surveyed contained a mandatory arbitration clause, and the clause was more prevalent in some industries than in others. For example, 82% of retail sector contracts contained such a clause compared to 42% of financial services sector contracts. Similarly, 94% of retail sector contracts contained a waiver of the right to jury trial compared to 42% of financial services sector contracts. The disparity among sectors is perhaps not surprising given the increased governmental scrutiny and regulation of terms, such as mandatory arbitration, in consumer financial services contracts. Continue reading "Debunking the Market-Based Myths of Boilerplate"
Jan 29, 2025 Amy SalyzynLegal Profession
New kid on the block. Legal ethics, as a scholarly discipline, has long been referenced in relation its youth—and, fair enough, given its relatively recent emergence in the United States in 1970s and even later arrival in other countries. But another story about legal ethics also exists. This is a discipline that has, over the last several decades, clearly come of age. We now have an extensive body of scholarship full of rich, diverse writings and lively conversations. While the full breadth of legal ethics is beyond any one book, we are fortunate to get a captivating snapshot of the field in the recently published Leading Works in Legal Ethics, edited by Julian Webb.
Leading Works aims not to identify “canonical” works but rather to allow scholars to explore what they personally view as a “leading work.” The result is a vibrant tapestry. Individual chapter authors bring their own unique threads to the collection—some of anticipated hues, while others wholly unexpected. Continue reading "New Kid No Longer: Tracing Legal Ethics’ Growth and Charting its Future"
Jan 28, 2025 Anne Marie LofasoWork Law
Industrial democracy, the foundational metaphor invoked to support the National Labor Relations Act, is a helpful analogy for understanding why workers should have workplace representation to bargain collectively over wages, hours and other terms and conditions of employment by placing workers’ voice within the sphere of a national ideal—democratic governance.
But any analogy can be stretched to its breaking point. In The Labor Gerrymander, Joel Heller argues that, although the democracy analogy in broad strokes is instructive in the labor context, the specific concept of political gerrymandering is ill-suited to explain bargaining unit determinations under labor law. Continue reading "Taking Political Analogies Too Far: Why Applying the Concept of Political Gerrymandering To the Labor Context Doesn’t Work"
Jan 27, 2025 Solangel MaldonadoTrusts & Estates
Fetal personhood statutes—laws that grant the same legal protections to embryos as to live children—have been the subject of significant discussion since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the federal constitutional right to abortion. The impact of these laws was magnified by the Alabama Supreme Court’s recent decision in LePage v. Ctr. for Reprod. Med., P.C., holding that frozen embryos are children for purposes of Alabama’s Wrongful Death of a Minor Act and must be treated the same as children born alive regardless of “developmental stage, physical location, or any other ancillary characteristics.” While the impact of fetal personhood statutes on abortion, contraception, and assisted reproduction may be rather obvious, their effects on trusts and estates law or tax law are more speculative. Yet, this is the focus of Bridget Crawford’s and her students’ (Alexis C. Borders and Katherine Keating) article, Unintended Consequences of Fetal Personhood Statutes: Examples from Tax, Trusts, and Estates, which demonstrates how fetal personhood laws have the potential to destabilize the transmission of property at death, specifically the rules governing intestacy, trust administration, trust duration, and the generation-skipping wealth transfer tax.
The article demonstrates how fetal personhood statutes might disrupt settled understandings of who may inherit under intestacy laws. It points out that if an embryo is treated as a person under the rules of intestacy, then it has the same rights to inherit from a parent and through a parent (from a grandparent, aunt or uncle, for example) as a living child. The article illustrates how such a right could present challenges when distributing an intestate decedent’s estate since it might require determining whether any surviving family members had pregnant partners when the decedent died. It explains:
[A]ssume that Helen, a widow, dies intestate survived by her adult daughter Jane and her adult son Joe. At the time of Helen’s death, Joe’s partner is pregnant with their first child. Just a few days after Helen dies, Joe himself is killed in a tragic accident. Helen’s intestate heirs are Jane and the zygote-embryo-fetus in gestation. Unless the personal representative inquires whether Joe’s partner was pregnant, the personal representative might erroneously believe that Jane is Helen’s sole surviving heir and distribute the entire estate to Jane. (P. 1178.) Continue reading "Constraining the Reach of Fetal Personhood Statutes"
Jan 24, 2025 Ronen AvrahamTorts
Roy Baharad, Stuart Minor Benjamin, & Ehud Guttel,
Anti-Patents, 91
Univ. Chi. L. Rev. 239 (2024).
What Do Blitz, Bic, and DuPont have in common? Blitz U.S.A. declined to add flame arrestors to its gasoline cans, despite severe injuries from explosions. Bic led the lighter market but withheld childproof designs. DuPont identified health risks in its PFOA products but opted against safer disposal methods. The reason these injurers failed to implement socially desirable safety innovations in their products was allegedly to avoid the liability risks associated with these changes. By not implementing them, they were able to evade liability, either because the harm to consumers remained unknown outside the company or because, in the absence of knowledge about the innovative safety device they chose not to develop, the product was considered legally not defective.
The problem exemplified in all these cases is that, at times, tort law provides tortfeasors with incentives to hide innovation, because implementing a safety measure can reveal a safety problem that would otherwise remain hidden. Continue reading "When Injurers Innovate for Safety: Bridging the Gap Between Tort and Patent Law"
Jan 23, 2025 Charlene D. LukeTax Law
Emily Cauble explores the extent to which the tax system allows taxpayers “to benefit from hindsight” in her article, Taxpayers’ Tax Election Regrets. Cauble uses concrete tax election examples to categorize the types of hindsight that cause taxpayers regret and to offer recommendations on how the tax system should approach hindsight to “bring more coherence to tax law’s approach and better align its approach with underlying policy goals.”
Cauble’s focus is on explicit, rather than implicit, tax elections; thus, the focus is on elections that require a formal indication of choice to the IRS. Cauble further considers the availability of filing a late election, revoking an election, and filing a protective election. Cauble analyzes formal election processes to highlight when an election-related decision may bring a taxpayer regret and when a taxpayer is able to use hindsight to make an adjustment to the original choice. The article concludes with recommendations for improvements to how the tax system allows hindsight, with the recommendations guided by tax policy goals relating to revenue-raising, fairness, and administrability. Continue reading "In (Tax) Hindsight: When Should the Tax System Ease Taxpayer Regrets?"
Jan 22, 2025 Yael LifshitzProperty
Professor Shoemaker, in her article, Re-Placing Property, shines a light on a surprisingly understudied, yet immensely important point. She explores that the law of real property encompasses both situations when land is held for its use value and when it is held for the wealth it represents as a form of investment. Through this work, Professor Shoemaker elegantly and thoughtfully reminds us of this fundamental truth, which likely rings true with every property scholar and student.
Picture a typical family house. The house can be held by a family that uses it daily. The kids’ growth chart is etched in the kitchen pantry and the backyard holds the memories of many birthday parties. The same house; however, can also be held by an investment company, a corporation that holds it for the sake of profit. Same house. Same law of real property. Vastly different purposes. Continue reading "Land as Land and Land as Wealth"
Jan 21, 2025 Samy AyoubLegal History
Islamic legal theory places great importance on the distinction between general and specific language (al-ʿāmm wa al-khāṣṣ). This new article by Omar Farahat draws on the philosophy of law to distinguish between internal and external generality. Internal generality refers to how the law maintains its coherence and intellectual consistency, while external generality deals with how the law applies to different social situations. These are analytical tools used to understand Islamic legal principles and their application. They primarily refer to the way Islamic legal principles are articulated and the scope of their applicability.
Internal generality refers to the universality of Islamic legal principles within the Muslim community such as the obligation to perform daily prayers. These rules imply that a particular legal principle is meant to apply to all Muslims, regardless of their specific social, geographical, or cultural circumstances, provided they meet the conditions of the rule. External generality refers to the applicability or relevance of Islamic legal principles beyond the Muslim community, often in interactions with non-Muslims or in multi-religious contexts. It considers how Islamic principles are communicated or enforced in situations involving non-Muslims or international matters. For example, the principle of upholding contracts applies in dealings with both Muslims and non-Muslims. Continue reading "The Indispensable Nature of Islamic Legal Theory"
Jan 21, 2025 Samy AyoubLegal History
Islamic legal theory places great importance on the distinction between general and specific language (al-ʿāmm wa al-khāṣṣ). This new article by Omar Farahat draws on the philosophy of law to distinguish between internal and external generality. Internal generality refers to how the law maintains its coherence and intellectual consistency, while external generality deals with how the law applies to different social situations. These are analytical tools used to understand Islamic legal principles and their application. They primarily refer to the way Islamic legal principles are articulated and the scope of their applicability.
Internal generality refers to the universality of Islamic legal principles within the Muslim community such as the obligation to perform daily prayers. These rules imply that a particular legal principle is meant to apply to all Muslims, regardless of their specific social, geographical, or cultural circumstances, provided they meet the conditions of the rule. External generality refers to the applicability or relevance of Islamic legal principles beyond the Muslim community, often in interactions with non-Muslims or in multi-religious contexts. It considers how Islamic principles are communicated or enforced in situations involving non-Muslims or international matters. For example, the principle of upholding contracts applies in dealings with both Muslims and non-Muslims. Continue reading "The Indispensable Nature of Islamic Legal Theory"
