Feb 15, 2024 Felix MormannLexEnergy Law
Electricity is the lifeblood of America. Automotive manufacturing in Detroit, server farms in Silicon Valley, the heating and cooling of our homes, and the charging of our smart devices all depend on the availability of affordable and reliable electric service. Electricity, in other words, is as vital to our economy and lifestyle as the air we breathe is to our survival. At the same time, the way we generate, transmit, and use electric power directly impacts, often adversely so, the quality of our air and water, exacerbates global climate change, and causes deadly wildfires, among other societal impacts. Given the complexity of the electric grid and its many interactions with social welfare and the public interest, one might expect Public Utility Commissions (PUCs) to provide comprehensive oversight to address and regulate these interactions. Most do not.
In his excellent new article, Precautionary Ratemaking, professor Jonas Monast makes a compelling case for PUCs to become more proactive regulators of the wide-ranging risks associated with electric utilities’ actions. The article urges utility commissioners to interpret their regulatory mandate beyond the traditional confines of economic regulation and least-cost electric service to include risk analysis and management according to the precautionary principle that underpins much of modern environmental law. Continue reading "Public Utility Regulation Through the Lens of Risk Management"
Feb 14, 2024 Richard MurphyAdministrative Law
To start, please forgive a few preliminaries: The Constitution provides express instructions governing appointments of Officers of the United States but not about removals (other than by impeachment). Congress has often stepped into this gap by imposing limitations on the power of the President to remove agency officials. The Supreme Court upheld for-cause style limits on presidential removal authority from the New Deal up until the arrival of the Roberts Court. The Roberts Court, following a path blazed by Justice Scalia, adheres to the principle of the “unitary executive,” which holds that the power to remove agency officials is a necessary element of the “executive power” that Article II of the Constitution provides “shall be vested in a President.” Art. II, § 1, cl. 1. Accordingly, the Roberts Court has invalidated several statutory restrictions on presidential removal power in a series of high-profile cases. To support this embrace of the unitary executive, the Roberts Court has relied upon one precedent above all others, Myers v. United States, 272 U.S. 52 (1926). Chief Justice Roberts has characterized Myers as having “conducted an exhaustive examination of the First Congress’s determination in 1789, the views of the Framers and their contemporaries, historical practice, and our precedents up until that point.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020). This “exhaustive examination” conclusively demonstrated that the President’s “executive power” must include a general authority to remove executive officials. Id. at 2197-2198.
In their terrific article, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, Professors Katz and Rosenblum take a blowtorch to this reading of Myers. On their account, President—whoops, sorry, Chief Justice—Taft’s 72-page majority opinion in Myers did not provide an accurate, originalist report on the Framers’ eighteenth-century expectations regarding the power of the presidency. Rather, Chief Justice Taft constitutionalized a twentieth-century, Progressive vision of the President as “popular tribune and chief administrator.” (P. 8.) Myers thus provides an example of, gasp, “living constitutionalism.” (P. 19.) And so does the Roberts Courts’ twenty-first century deployment of Myers for its own, not-so-Progressive ends. Continue reading "Myers, We Hardly Knew Ye?"
Feb 13, 2024 Joseph SeinerWork Law
In The Causation Canon, Professor Sandra Sperino performs a superb analysis of the Supreme Court’s evolving analysis of causation standards. The piece carefully synthesizes the decisions in this area, identifying a new canon of statutory interpretation now used by the Court – coined by Professor Sperino as the “Causation Canon.”
The law with respect to causation has always been muddled. In the field of employment discrimination law and worklaw more generally, causation has persistently presented a tremendous burden to claimants in the field. While establishing causation in other areas of the law may often be much more straightforward, showing discriminatory employer intent can present a Herculean task. There are a variety of reasons for the difficulty, including that so much of the critical information in such cases often resides with the employer and can be notoriously difficult to uncover. Personnel files, worker emails, and other critical evidence may not be readily accessible to a worker who has been recently fired, or may be accessed only at substantial cost during discovery. Yet the law requires that causation be established to recover in most workplace cases, particularly with respect to disparate treatment employment discrimination claims.
Professor Sperino’s groundbreaking paper identifies the new way that the Supreme Court has approached statutory interpretation with respect to issues involving causal determinations. As she identifies the Court’s new doctrine, which has evolved over the past decade, “[w]hen a statute uses any language that might relate to factual cause, the Court will assume that Congress meant to require the plaintiff to establish ‘but-for’ cause.” (P.704.) Professor Sperino traces the doctrine back to 2013. Prior to this time, she notes that the Court looked at each statute individually in determining how to interpret factual cause in each matter. Over the past decade, however, the Court has looked at causation differently, assuming that the but-for requirement exists universally across statutes. Continue reading "The Supreme Court’s Evolving (and Dubious) View on Causation"
Feb 12, 2024 David HortonTrusts & Estates
- Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners, available at SSRN (Jan. 20, 2023).
- Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries, available at SSRN (Jan. 20, 2023).
Some of the most important rules in inheritance law may be out of date. Intestacy statutes distribute the assets of most decedents in the U.S. Because they provide an estate plan by default, they’re supposed to reflect majoritarian preferences. Many such laws, including the 1990 amendments to the Uniform Probate Code (“UPC”), favor ties of marriage and blood. Yet American families are rapidly evolving. Unmarried cohabitation is on the rise. Likewise, skyrocketing rates of divorce and remarriage mean that one child in six now lives in a “blended” family. Arguably, these shifts cast doubt on the Leave It to Beaver conservativism of traditional intestacy regimes.
Unfortunately, the intuition that intestacy statutes are archaic has long been just that—an intuition. There’s little reliable data about what people want to have happen to their property after they die.
Enter Yair Listokin and John Morley, who have posted a pair of sophisticated empirical studies about dispositive preferences on Social Science Research Network: A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners and A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries. Continue reading "Rich Data About Dispositive Preferences"
Feb 9, 2024 Charlene D. LukeTax Law
Luís Calderón Gómez,
Whose Debit Is It Anyway?, 76
Tax L. Rev. 159 (2022) availible on
SSRN.
Luís Calderón Gómez asks the question, “Whose Debt Is It Anyway?,” to frame his analysis of a situation that, while common, remains understudied and undertheorized: the tax treatment of debt co-obligors.
Calderón Gómez’s initial contribution is to demonstrate that there is, in fact, a problem. Co-obligated debt offered by corporate issuers alone is “in the hundreds of billions” of dollars under a “conservative estimate” based on SEC documentation. Yet, tax law generally assumes a conceptual paradigm “where one creditor lends money to one borrower.” Calderón Gómez begins the article by illustrating the inconsistent and incoherent tax treatment that results when a loan arrangement departs from this paradigm. Continue reading "The Taxing Puzzle of Co-Obligated Debt"
Feb 8, 2024 Felicia CaponigriIntellectual Property Law
People often want to experience aura, especially from the products we purchase. Professors Bechtold and Sprigman explore this phenomenon in their interdisciplinary and comparative article Intellectual Property and the Manufacture of Aura. It explains how and why companies manufacture aura to make their products more attractive in the market to consumers.
They offer an “eclectic array of examples” (P. 357) from Italian Bergamasco salami to Birkenstock sandals to NFTs, and more. Why do you choose a Bergamasco salami for your next aperitivo instead of any random salami? That’s likely because you are not just wanting to consume a product made of excellent ingredients from Bergamo, Italy. You are also seeking to consume a specific narrative and participate in a cultural experience implicitly communicated by the narrative aura infused into the Bergamasco salami. Continue reading "Auratic IP in a Culture of Copies"
Feb 7, 2024 Cristina TilleyTorts
Private causes of action for constitutional injuries are doctrinal eels. They slither freely among formal legal categories – variously creatures of constitutional law and tort; of federal jurisdiction and even conflict of laws. They have no agreed genus name; sometimes they are called Ku Klux Act claims; sometimes Enforcement Act claims; technically claims pursuant to 42 U.S.C. Section 1983 and conversationally constitutional tort. Because they swim in and out of jurisprudential silos, they elude critical analysis under any single legal lens, virtually demanding interdisciplinary consideration. In Colorblind Constitutional Torts, Osagie K. Obasogie and Zachary Newman rise to this challenge, using history, doctrine, corpus linguistics, and critical race theory to pin down constitutional tort and identify an as-yet undiscovered reason that this once-powerful tool of racial justice is falling short of its early promise.
Colorblind begins with a compact and opinionated overview of Section 1983 history, beginning in the antebellum period and moving to the twenty-first century. Obasogie and Newman establish that pre-war slave patrols in the Southern states mutated into a loose web of post-war private and public racial vigilantism driven by “militias, the Ku Klux Klan, and eventually (in some areas) what we now call ‘the police.’” (Pp. 1148-50.) The Reconstruction Amendments, they suggest, reflected Congressional recognition that the mere fact of emancipation was insufficient to produce meaningful liberty for formerly enslaved people. The Fourteenth Amendment was therefore a critical companion initiative, designed to “change structural and institutional relations between whites and African-Americans.” (P. 1146.) Continue reading "Colorblind? Constitutional? Tort?"
Feb 6, 2024 Margot KaminskiTechnology Law
How should we think about liability when AI systems generate illegal speech? The Journal of Free Speech Law, a peer-edited journal, ran a topical 2023 symposium on Artificial Intelligence and Speech that is a must-read. This JOT addresses two symposium pieces that take particularly interesting and interlocking approaches to the question of liability for AI-generated content: Jane Bambauer’s Negligent AI Speech: Some Thoughts about Duty, and Nina Brown’s Bots Behaving Badly: A Products Liability Approach to Chatbot-Generated Defamation. These articles evidence how the law constructs technology: the diverse tools in the legal sensemaking toolkit that are important to pull out every time somebody shouts “disruption!”
Each author offers a cogent discussion of possible legal frameworks for liability, moving beyond debates about First Amendment coverage of AI speech to imagine how substantive tort law will work. While these are not strictly speaking First Amendment pieces, exploring the application of liability rules for AI is important, even crucial, for understanding how courts might shape First Amendment law. First Amendment doctrine often hinges on the laws to which it is applied. By focusing on substantive tort law, Bambauer and Brown take the as-yet largely abstract First Amendment conversation to a much-welcomed pragmatic yet creative place. Continue reading "Risky Speech Systems: Tort Liability for AI-Generated Illegal Speech"
Feb 5, 2024 James E. PfanderCourts Law
Samuel Beswick,
Equality Under Ordinary Law, 106
Sup. Ct. L. Rev. __ (forthcoming, 2024) available on
SSRN (Nov. 9, 2023).
The Supreme Court oversees a system of government accountability that has attracted a range of familiar and persuasive criticisms. Rather than basing liability on generally applicable legal principles, the Court has applied doctrines of sovereign and official immunity that block many of the suits brought by victims of undue government violence. The Court has sought to balance the interests of the public in assuring zealous law enforcement and the interests of the victims in securing redress when excessive zeal results in injuries. Few believe that the Court has struck the proper balance. Its doctrine of qualified immunity shields all but the plainly incompetent or deliberately malicious from liability in the name of eliminating the chilling effect of personal liability—a threat neutralized by the widespread practice of indemnification. The search for clear law, the touchstone for immunity decisions, entails scholastic inquiries into legal nuances that do not obviously shape the behavior of officers on the job.
One can measure just how far wrong the Court has gone in a variety of ways: by toting up examples of clear injustice in the cases; by examining the culture of law enforcement and how it encourages violent confrontation; by comparing the liability rules in place today with those that governed police work in years gone by. But we have largely lost sight of one key measure of legal performance: how well does our system of government accountability compare to the rules of tort law that govern ordinary citizens in ordinary proceedings before ordinary courts. Largely, but not perhaps completely lost sight, thanks to the comparative work of Canadian legal scholar Sam Beswick. In the arresting paper at the center of this jot, Equality Under Ordinary Law, Beswick compares government accountability litigation under the Diceyan model of ordinary law in Canada with the qualified forms of constitutional tort liability that prevail in the United States. Beswick shows, unsurprisingly, that the Diceyan model outperforms the American system in providing some measure of redress to the victims of wrongful official conduct. Continue reading "Ordinary Law, Constitutional Torts, and Governmental Accountability"
Feb 2, 2024 Amy SalyzynLegal Profession
What should new lawyers be required to promise, as a condition of entry into the legal profession? This inquiry raises existential questions about what it means to practice law. It can also prompt questions about the appropriate reach of lawyer regulation. Lawyer oaths—which are used to elicit promises from new lawyers in North America—should not be seen as merely symbolic and ceremonial (although they are certainly both these things). Lawyer oaths also intersect with core legal ethics questions. Thus, what is included in these oaths deserves our attention.
In Human Rights and Lawyer’s Oaths, Lauren Bartlett takes a deep dive into lawyer oaths, resulting in a comprehensive historical account of lawyer oaths in the United States, as well as a novel proposal for a way forward. In short, Bartlett contends that lawyer oaths can be “useful as a tool to build a dignified, respectful, and inclusive legal profession” but in order to function as such, “the unremarkable, irrelevant, inappropriate, discriminatory, and obsolete language in lawyer’s oaths must be removed and replaced by ethical guidance and aspiration” (P. 415). Bartlett points to human rights norms, specifically, as an optimal touchpoint for better aligning lawyer oaths with our current times. One potential benefit, according to Bartlett, is that human rights norms can point lawyers to more aspirational ethical and moral ideals than can be found in professional conduct codes, which tend to focus on minimum standards. Insofar as human rights norms transcend country borders and legal practice is increasingly globalized, Bartlett also argues that “legal ethics—and lawyer’s oaths in particular—should not stand out as separate from human rights” (P. 437). Continue reading "Out with the Old (Oaths): Lawyer Promises for a New Era"
