Monthly Archives: August 2015

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Jotwell 2015 Summer Break

Jotwell is taking a short summer break. Posting will resume on Tuesday, September 1. However, even while we’re on break, we’ll be accepting submissions, editing them, updating the site’s theme, and preparing new sections we plan to be launching in Fall.

If you like Jotwell, share — help us find more readers. Tell a friend about Jotwell. And if you are an academic reader, please consider recommending Jotwell to your students. Continue reading "Jotwell 2015 Summer Break"

 
 

What is a Theorist For? The Recruitment of Users into Online Governance

Kate Crawford & Tarleton Gillespie, What is a flag for? Social media reporting tools and the vocabulary of complaint, New Media & Society (2014), available at SSRN.

The problem of handling harassing and discriminatory online speech, as well as other forms of unpleasant and unlawful content—infringing, privacy-invading, or otherwise tortious—has been a matter for public discussion pretty much since people noticed that there were non-governmental intermediaries involved in the process. From revenge porn to videos of terrorist executions to men kissing each other to women’s pubic hair, controversies routinely erupt over whether intermediaries are suppressing too much speech, or not enough.

“Flagging” offensive content is now an option offered to users across many popular online platforms, from Facebook to Tumblr to Pinterest to FanFiction.net. Flagging allows sites to outsource the job of policing offensive content (however defined) to unpaid—indeed, monetized—users, as well as to offer a rhetoric to answer charges of censorship against those sites: the fact that content was reported makes the flagging user/s responsible for a deletion, not the platform that created the flagging mechanism. But the meaning of flags, Crawford and Gillespie persuasively argue, is “anything but straightforward.” Users can use flags strategically, as can other actors in the system who claim to be following community standards. Continue reading "What is a Theorist For? The Recruitment of Users into Online Governance"

 
 

Making People Pay – and Pay, and Pay

Wayne A. Logan and Ronald F. Wright, Mercenary Criminal Justice, 2014 U. Ill. L. Rev. 1175 (2014).

While budget crises have sparked efforts to curb the costs of mass incarceration, financial considerations have also intensified incentives for the aggressive use of a less-visible form of punishment—fines, fees, assessments, and related ways to make people pay. Collectively, these ways to extract money through criminal justice processing are called “legal financial obligations” or LFOs. The investigation into Ferguson by the U.S. Department of Justice yielded powerful insights into the hidden institutional pressures to raise revenue through pursuing community members and exacting LFOS. This hidden tax is harshly regressive—disproportionately imposed on community members who are often the least financially situated to pay.

Well before the Justice Department’s Ferguson report, Wayne A. Logan and Ronald F. Wright were sounding the alarm about institutional incentives to slam people with LFOs. Logan and Wright’s important article sheds light on the institutional incentives to extract money and the limited constraints to safeguard against what they dub mercenary justice. I have encouraged my students engaged in criminal justice advocacy and research to read and circulate Logan and Wright’s important article because it is compelling and accessible. The piece accomplishes an important feat for law review articles aimed at spurring reform—being of great value to scholars and specialists as well as a general audience able to act on reform proposals. Continue reading "Making People Pay – and Pay, and Pay"

 
 

A Pragmatic Approach to Interpreting the Federal Rules

Elizabeth G. Porter, Pragmatism Rules, 101 Cornell L. Rev. (forthcoming, 2015), available at SSRN.

With seventeen decisions interpreting the Federal Rules of Civil Procedure in the last decade, the Roberts Court has doubled the number of cases decided by its predecessor, the Rehnquist Court, in the same amount of time. This record-breaking streak has given scholars a unique opportunity to examine the contours and direction of the modern civil litigation system. Elizabeth Porter has taken this opportunity to discern the interpretive methodologies used by the Roberts Court when deciding Rules cases. In doing so, she makes a unique contribution not only to the literature on civil process, but also to the study of interpretation, focusing it away from statutes and instead onto the Rules.

At a time when much is at flux in the procedural world, in Pragmatism Rules, Porter discerns two primary competing interpretative methodologies in the Roberts Court’s Rules opinions. On the one hand, the Roberts Court interprets the Rules using the familiar tools of statutory interpretation. This go-to mode, although imperfect, works to provide rational, clear, and predictable outcomes. To the extent that Rules are like statutes, the Court can rely on the familiar markers of text, structure, and purpose when deciding Rules cases. The Court justifies its reliance on this mode by reminding the lower courts and parties that rule changes must come from the rulemaking process, not judicial adjudication. Continue reading "A Pragmatic Approach to Interpreting the Federal Rules"

 
 

Private Ordering in Corporate Litigation

Verity Winship, Shareholder Litigation by Contract, __  B.U. L. Rev. (forthcoming, 2015, available at SSRN.

The debate over litigation bylaws has been percolating in Delaware for several years, but it shifted into high gear last year, when the Delaware Supreme Court held unexpectedly that a fee-shifting bylaw was “facially valid.” ATP Tour, Inc. v. Deutscher Tennis Bund, 91 A.3d 554, 558 (Del. 2014). This decision prompted discussion of a corporate litigation crisis, which seems to have abated with action this summer by the Delaware General Assembly, passing legislation prohibiting fee-shifting bylaws and charter provisions for Delaware stock corporations. This legislation also addresses forum selection clauses, authorizing bylaws, or charter provisions designating Delaware as the exclusive forum for claims relating to “internal affairs” and prohibiting provisions designating courts outside of Delaware as the exclusive forum for such claims. Although the immediate threat of crisis has been abated, important issues remain regarding bylaw- and charter-provision-regulating corporate litigation. In Shareholder Litigation by Contract Verity Winship offers a useful framework for thinking about these issues.

Winship begins with a sensible premise: “procedural law should not be used to waive mandatory provisions of substantive law.” (P. 6.) Of course, she recognizes that the number of mandatory provisions in state corporate law is few, but she includes among those provisions “the core duty of loyalty claim within the umbrella of state-law fiduciary suits.” (P. 45.) This is a controversial claim, but one that seems to be shared by the Delaware General Assembly, as the implicit motivation for prohibiting fee-shifting is the desire to preserve fiduciary duty litigation. Continue reading "Private Ordering in Corporate Litigation"

 
 

Spillover Federalism

Gerken and Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 Mich. L. Rev. 57 (2014).

An essay by Heather Gerken and James Dawson entitled Living Under Someone Else’s Law, 36 Democracy Journal 42 (2015) caught my attention several months ago. The topic was horizontal federalism, and the context was “spillovers,” extraterritorial effects that regulations of one state have on other states. Spillovers do not intentionally discriminate against a state’s neighbors or their citizens, do not favor insiders (citizens or businesses), and do not erect protectionist barriers at state lines. But spillovers have consequences, sometimes annoying, sometimes costly, for neighboring states.

Spillover examples include California emissions controls, Colorado marijuana legalization, and red state permissive gun-control regulations. Tighter emissions controls by California raised car prices to buyers in all states as national companies produced cars to comply with California rules. This adversely affected auto buyers elsewhere as surely as industrial pollution affected states downwind of the pollution. Likewise, recreational marijuana legalization increased drug trafficking across state lines, upsetting Colorado’s neighbors. Permissive gun sale laws in red states permit citizens in blue states to cross state lines, buy guns, and tote them home. Same-sex marriage bans in red states led, before the Supreme Court’s Obergefell decision, to concern in blue states: would their same-sex marriages be recognized (given ‘full faith and credit’) in neighboring states? The authors cleverly call this situation a “spillunder,” where under-recognition of one state’s law poses potential problems for its citizens when they are in other states.

In a longer article, The Political Safeguards of Horizontal Federalism, Gerken and co-author Ari Holtzblatt examine the underdeveloped legal literature and doctrinal signposts concerning spillovers and compare this virtual vacuum with the extensive literature concerning vertical federalism. They then suggest an approach to horizontal federalism premised on insights from vertical federalism scholarship. Continue reading "Spillover Federalism"

 
 

Administrative Law and the Corporate Governance Obsession

Mariana Pargendler, The Corporate Governance Obsession, 470 Stanford Law and Economics Olin Working Paper (2014).

The recent paper that has most provoked my thinking about administrative law is not a paper about administrative law at all, it is a paper about corporate governance. The Corporate Governance Obsession, by Mariana Pargendler is an account and a critique of the turn to corporate governance as a means of addressing social and economic issues that were once predominantly the concern of government regulation. By “corporate governance” Pargendler means the internal decision-making processes of corporations—in particular, the balance of power among shareholders, boards of directors, and managers. The article makes the case that internal corporate governance structures increasingly provide both the explanation for and a one-size-fits-all solution to pressing issues in policy arenas as diverse as systemic financial risk, income inequality, gender discrimination, labor rights, and environmental protection.

Why should administrative lawyers care? Because, she argues, corporate governance approaches to these issues are cannibalizing regulatory approaches that externally impose rules to influence the substance and outcomes of corporate conduct. Policy debate on the central social and economic issues of the day is no longer (or at least no longer exclusively) about how regulators should design and implement rules to shape the substance of corporate conduct in the public interest, but rather about how corporations should organize their own internal decision-making processes to address issues of public concern. This means that while we administrative lawyers occupy ourselves with our own obsessions—for instance the finer points of deference doctrine and regulatory review—the corporate governance obsession is chipping away at the substantive regulatory policies that made these issues relevant in the first place. Continue reading "Administrative Law and the Corporate Governance Obsession"

 
 

“Otherwise Unqualified” Individual with a Disability

Michelle Travis, Disqualifying Universality Under the Americans with Disabilities Amendments Act, __ Mich. St. L. Rev. (forthcoming, 2015), available at SSRN.

I have long admired Professor Michelle Travis’s work, but I was impressed all over again by her recent SSRN article, Disqualifying Universality Under the Americans with Disabilities Amendments Act, to be published in the Michigan State Law Review. There’s a lot to like in her piece, and I can’t begin to capture the entire article, but I do see a theme—“hidden in plain sight”—which I’ll try to sketch out here.

Professor Travis’s overarching argument is that the qualification question has become the emerging gatekeeper for ADA claims, threatening to replace the “disability” barrier that the courts erected and that Congress demolished with passage of the ADAAA. In a nutshell, because courts are putting the burden of persuasion on the employee to establish that she is a “qualified individual,” and that qualification requires an ability to perform the “essential functions” of the job, what is “essential” is often outcome determinative for ADA plaintiffs. Continue reading "“Otherwise Unqualified” Individual with a Disability"

 
 

Is Federal Preemption in Beneficiary Designation Cases Part of the Problem or Solution?

Those who practice in estate planning and probate law know all too well the problems associated with outdated plans. Specifically, we are frequently left to deal with disappointed family members who were expecting to receive certain property, only to find that, intentionally or unintentionally, the decedent did not include them. Statutes such as the elective share give surviving spouses protections against intentional omissions. Surviving spouses also benefit from rules of construction, such as pretermitted spousal share, and statutory protections, such as divorce revocation laws, that provide protection from unintentional omission based on stale plans. However, despite state efforts to protect them, surviving spouses remain vulnerable to stale beneficiary designations in life insurance policies and pension plans subject to federal regulation because of federal preemption.

Professor Langbein artfully challenges the long-standing principle of federal preemption of beneficiary designation in a pension plan or life insurance policy subject to federal regulation under the Employee Retirement Income Security Act (“ERISA”) or Federal Employees’ Group Life Insurance Act (“FEGLIA”). Specifically, he challenges the reasoning and policy merits of federal preemption as applied to state divorce revocation statutes by providing a critical analysis of Hillman v. Maretta, 133 S. Ct. 1943 (2013) and Egelhoff v. Egelhoff, 532 U.S. 141 (2001). Continue reading "Is Federal Preemption in Beneficiary Designation Cases Part of the Problem or Solution?"