Sep 19, 2024 Evan BernickConstitutional Law
Joel Alicea,
Constitutional Theory and the Problem of Disagreement, 173
U. Pa. L. Rev. __ (forthcoming, 2024), available at
SSRN (February 27, 2024).
Joel Alicea wants to make the world a better place with constitutional theory and thinks that you should, too. More specifically: In choosing how to interpret a constitution, you ought to consult moral views which you believe to be correct, while making room for widespread social practices which aren’t entirely consistent with those views. It’s a testament to Alicea’s intellect, prudence, and rhetoric that readers are likely to be persuaded. His paper, Constitutional Theory and the Problem of Disagreement, feels less like an argument than a friendly conversation from which truth gradually but inexorably emerges.
Call to mind Raphael’s The School of Athens, depicting Aristotle and Plato in conversation. Plato gestures up, Aristotle gestures down. Both philosophers are perfectionists who believe that politics should be organized around an objective account of human flourishing. But one has his head in the realm of Forms and the other takes a more grounded approach. Alicea follows Aristotle. Continue reading "Imperfectionist Constitutional Theory"
Sep 18, 2024 Ellen BublickTorts
Of the tens of thousands of reported civil cases in Westlaw’s torts database, would it surprise you that a mere 34 opinions in the set use the word “vulva”? Even then, the term is often mentioned only as a quote from a statute, regulation, or expert testimony, or used with reference to non-human animals (baby mink). 74 cases mention the term “oocyte or ovum.” 578 mention the word “vagina.” These small numbers exist alongside 5,954 published civil cases in the database that mention “rape” or “sexual assault.” Courts use terms related to male anatomy more often than their female analogues, but only two to three times more often.
Into this gap concerning bodies and sexuality, Professor Anita Bernstein has consciously “chosen to feel inspired by this silence in the discourse.” (P. 239.) If you are feeling squeamish already, I feel your pain. We law professors, judges and lawyers are a pretty staid bunch. When Bernstein first made her unabashed presentation about semen and products liability (in that order) to a packed audience of lawyers and law professors, I will admit to wincing just a bit. Until, that is, I thought more about the strength of Bernstein’s topic and her candor, as well as the importance of precise language when addressing it. In a world of AI and big data, euphemisms such as “privates” and “reproductive tissue” (some actual substitutes in opinions and scholarship) will prevent detection, understanding and study of legal subjects that relate to sexual anatomy. Worse still, the comfortable route of skipping unmentionable topics altogether neglects needed judicial and academic scrutiny. Continue reading "Mentioning the Unmentionable Parts of Tort Law: Responding to Silence with Discourse"
Sep 17, 2024 Atinuke AdediranCorporate Law
Are corporations responsible for addressing racial inequality? In a timely and compelling examination of corporate race relations during the civil rights movement and current corporate processes and decision-making on race, Gina-Gail S. Fletcher and H. Timothy Lovelace, Jr. argue in their article, Corporate Racial Responsibility, that corporations are responsible for addressing racial inequality because they have historically been inescapably involved in it.
The authors’ historical exploration of race and corporate relations is an important contribution to scholarship. The authors show that corporate engagement in race is not new. It extends back to the time of slavery and became much more extensive during the civil rights movement. As the authors document, sit-ins at hotels, restaurants, and other segregated businesses were catalysts for the civil rights movement.
Businesses were drawn to voluntary desegregation, which was woefully unsuccessful as evidenced by accounts in cities like Birmingham, Alabama and Atlanta, Georgia. It was not until the passage of Title II of the Civil Rights Act of 1964, mandating that businesses desegregate, that change began to occur. The authors explain that this is compelling evidence that mandates succeed while voluntary action, a form of corporate social responsibility, does not. Continue reading "Civil Rights Meets Corporate Governance"
Sep 16, 2024 Matt BodieWork Law
James D. Nelson,
Disestablishment at Work, 134
Yale L.J. __ (forthcoming, 2025), available at
SSRN (May 13, 2024).
Title VII’s legislative framework includes a prohibition against discrimination based on religion as well as race, sex, color, and national origin. Distinctively amongst these categories, however, religion is defined to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court seemed to set a low bar for Title VII’s accommodation mandate, defining an undue burden as anything more than “de minimis” costs. Compared to the colloquial understanding of the term, Hardison’s feeble definition seemed discordant with the textual meaning of “undue burden.” Indeed, it was not surprising when the Supreme Court unanimously rejected the de minimis approach in Groff v. DeJoy, 600 U.S. 447 (2023), redefining undue burden to mean the imposition of “substantial increased costs.”
There is more going on here than might appear at a glance, however. As James Nelson insightfully describes in Disestablishment at Work, the Supreme Court’s original “de minimis” standard endeavored to balance the principles of free exercise of religion(s) with the fear that too heavy a hand would infringe upon Establishment Clause principles. Now that Groff has upended the old equilibrium, courts must recalibrate to protect the interests of both the religious practitioner and their coworkers. Disestablishment at Work thoughtfully looks to the original compromise and its enforcement over the years to develop a set of deeper principles to guide the new framework. Continue reading "Moving Beyond “De Minimis” in Religious Accommodations at Work"
Sep 13, 2024 Sara MayeuxLegal History
Frequently I drink iced coffee at a local shop in my Tennessee neighborhood. I could pay with cash, but most often I hand over a credit card issued by a New York corporation (though the sign-up paperwork came from Utah), and later I pay the bill using funds in my checking account at a California bank (which funds I can also access with a Visa-branded debit card, which I could alternatively have used to buy the coffee). In the five minutes it takes to buy a drink in Nashville, both I and the vendor participate a web of financial transactions and legal agreements with banks, corporations, and sub-entities headquartered around the country, both of us potentially paying interest and fees at each node along the way.
How did routine purchases become so complicated? As meticulously chronicled in Plastic Capitalism, the way I pay in 2024 required decades of technological, legal, and policy change to become part of everyday life. The book is not merely a narration of the rise of credit cards, however, although that would be fascinating enough. Blending legal, political, and business history, Sean H. Vanatta uses the card industry as a case study in the eclipse of New Deal liberalism and the erosion of what Vanatta calls “the place-based regulatory order” (P. 292). Continue reading "The Rise of Credit Cards and the Fall of the New Deal Order"
Sep 12, 2024 Emily BremerAdministrative Law
Jonathan Petkun & Joseph Schottenfeld,
The Judicial Administrative Power, 93
Geo. Wash. L. Rev. ___ (forthcoming), available at
SSRN.
What is administrative power and where does it fit within the federal government’s tripartite structure? These questions are difficult because the Constitution seems to contemplate only three sovereign powers—legislative, executive, and judicial—each vested in a separate branch of the federal government. As Jerry Mashaw memorably put it, “there is a hole in the Constitution where administration might have been.” Administrative law deals with the many questions raised by this deficit, and it usually examines the work of executive branch agencies and the boards and commissions that execute the law with greater independence from the White House. In short, a major premise of administrative law is that “administrative power” is at home in Article II.
In The Judicial Administrative Power, which is forthcoming in the George Washington Law Review, Jonathan Petkun and Joseph Schottenfeld find administrative power in a different place: Article III. This is not an article about judicial review of agency action—it’s about administrative institutions and activities wholly internal to the judicial branch. It’s a terrific contribution to a growing literature that recognizes the reality that bureaucracy and administrative power are often found outside of Article II’s core territory. For example, Anne Joseph O’Connell has examined Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841 (2014), between government and the private sector, while Jesse M. Cross & Abbe R. Gluck, have uncovered The Congressional Bureaucracy, 168 U. Pa. L. Rev. 1541 (2020). Continue reading "Toward a Cross-Branch Perspective on Administration"
Sep 11, 2024 Gerry W. BeyerTrusts & Estates
How does one define death, and to what extent can we confidently say someone is dead enough? The answer to this question varies among our jurisdictions. Before initiating the administration of a deceased person’s estate, the primary question is whether the individual is deceased. Despite the existence of the Uniform Determination of Death Act, there are notable differences among states regarding the indicia of death, leading to the possibility of someone being declared legally dead in one state but considered alive in another state. The challenge of determining death is further complicated when considering how conflicting simultaneous death statutes may apply to potential beneficiaries. In this thought-provoking piece, Prof. Alyssa DiRusso delves into the intricacies of determining legal death by highlighting the challenges posed by advancements in medical technology and the inconsistencies in state laws. Prof. DiRusso proposes two possible solutions to create a clear and consistent standard for determining death: the domicile rule and the decedent situs rule.
Historically, the determination of death was straightforward, with doctors relying on physical signs like pulse, breath, and fixed pupils. However, history showed enough misjudgments to create a market for air tubes in coffins…just in case. Before the twelfth century, death was considered to be the “cessation of all vital functions and signs.” Medical advances challenged this, as respirators allowed cardiorespiratory activity even after irreversible brain damage. Further, organ transplantation complicated the definition as organ donors needed to be dead but not too dead to preserve organ function. Continue reading "“He’s Dead, Jim” or Not?"
Sep 10, 2024 Rebecca CrootofTechnology Law
When a digital financial or medical advisor gives bad advice, when ChatGPT confabulates that a law professor committed sexual assault, when an autonomous weapon system takes action that looks like a war crime—who should be held liable?
Bryan Choi’s excellent AI Malpractice makes an important but often overlooked point: the answer isn’t as simple as choosing between negligence and various other potential regimes (strict liability, products liability, enterprise liability, etc.). That’s an important first step, and for a host of reasons, I share Choi’s conclusion that strict liability is the preferable near-term standard. But as AI agents and decisionmaking technologies proliferate and judges consider the applicability of negligence, there is a critical second order question: In a negligence regime, what standard should be applied for evaluating if a duty was breached? Should AI developers’ choices be evaluated according to the default reasonable person standard? Or, like doctors and lawyers, should their acts be evaluated under a professional standard of care? Under the former, a jury evaluates whether a defendant’s act was reasonable; under the latter, the profession sets the bar. Continue reading "AI Misfeasance or AI Malpractice?"
Sep 9, 2024 Emily SatterthwaiteTax Law
Goldburn Maynard & Clint Wallace,
Penalizing Precarity, 123
Mich. L. Rev. __ (forthcoming, 2024), available at
SSRN (March 28, 2024).
Those who are committed to strengthening safety nets for economically precarious workers at modest revenue cost should look no further than Goldburn Maynard and Clint Wallace’s paper on hardship-related early withdrawals by employees from their 401(k)/403(b) qualified retirement plans. Employees who need to make an early withdrawal due to hardship are, by definition, encountering difficulties and have lower ability to pay. Nonetheless, as Maynard and Wallace describe, a subset of hardship distributees may be surprised by a mismatch in the law that can heap further hardship upon them in the form of penalties.
The mismatch occurs between two sets of rules: first, the “hardship distribution” rules addressed to qualified plans under Code subsection 401(k), which allow a plan administrator to permit withdrawals before the employee reaches retirement age and, second, the rules addressed to taxpayers under Code subsection 72(t), which apply a 10 percent “early withdrawal” penalty. The regulations under 401(k) list various safe harbored-payments that constitute an allowable hardship distribution in response to “immediate and heavy financial need” that cannot be satisfied using other resources. (Pp. 3-4.) These payments include those for medical care that would be deductible under Code subsection 213(d), costs related to the purchase of a home for the employee, tuition expenses for post-secondary education, as well as payments to prevent eviction or foreclosure, for funeral expenses, and for a natural disaster or casualty loss. (Pp. 3-4, 26.) However, those same safe harbored-payments are not fully mirrored in the subsection 72(t) penalty framework, which contains a divergent list that doesn’t include eviction and foreclosure, limits qualifying medical care expenses, and allows payment for post-secondary educational expenses only in the case of individual retirement account holders, not those who have 401(k)/403(b) qualified plans. (Pp. 30-31.) As a result, some hardship distributees fall between the cracks: “[d]espite qualifying for the hardship distribution safe harbor, [they can avail themselves of] no exception to this separate penalty…” (P. 4.) Continue reading "Hardship Withdrawals from 401(k)s: A Trap for the Unwary"
Sep 6, 2024 Serena WilliamsProperty
When considering what qualifications a tenant should have to be eligible to lease a unit, landlords often consider tenant screening reports that give an account of a tenant’s income, credit history, criminal background, and past eviction history. After reading Professor N. A. Pappoe’s article, The Scarlet Letter “E”: How Tenancy Screening Policies Exacerbate Housing Inequity for Evicted Black Women, we may all want to reconsider the use of tenant screening reports that contain information on these aspects of a tenant’s background.
Pappoe argues that the use of these reports by landlords has a disproportionate impact on Black women, preventing them from obtaining rental housing, both public and private. She suggests that the Fair Housing Act should be interpreted to find that landlords using these screening reports are liable for the disparate impact the policies and practices have on Black women and she proposes legislative fixes to address the issue. Continue reading "Removing the Scarlet Letter"
