Monthly Archives: December 2016

« November 2016 (23)
January 2017 (21) »

Jotwell Winter Break 2016

Jotwell is taking a short winter break. Posting should resume Tuesday, Jan 3, 2017.

We will be doing some technical work over the break, so it is possible that the site may be unavailable for occasional, and one hopes brief, random periods. But we’ll be back. Continue reading "Jotwell Winter Break 2016"

 
 

Discovery Costs and Default Rules

Brian T. Fitzpatrick & Cameron T. Norris, One-Way Fee Shifting After Summary Judgment (2016), available on SSRN.

In One-Way Fee Shifting After Summary Judgment, Brian Fitzpatrick and his student, Cameron Norris, address what has been the dominant impulse in federal procedural reform for the past thirty-five years: reducing cost and delay in civil litigation.

The most recent effort to curb litigation expense — the 2015 amendments to the Federal Rules of Civil Procedure that, among other things, sought to invigorate the concept of proportional discovery expenditures that had first found its way into the Rules in 1983 — has been widely criticized as feckless. Switching the proportionality requirement from (principally) Federal Rule 26(b)(2) to (principally) Federal Rule 26(b)(1) and then eliminating “subject matter” discovery seem to be little more than moving the deck chairs on the Titanic, given that judges have no more tools in 2016 to determine whether discovery is proportional than they had in prior years, and “subject matter” discovery was minimal at best. Continue reading "Discovery Costs and Default Rules"

 
 

Copyright Law’s Origin Stories

Shyamkrishna Balganesh, The Questionable Origins of the Copyright Infringement Analysis, 68 Stan. L. Rev. 791 (2016).

One particularly engaging genre of legal scholarship is the deep historical dive into an appellate opinion that has become a classic in a field. In volumes such as Torts Stories, Contracts Stories, and Intellectual Property Stories, scholars resurrect the history leading to landmark cases: the cast of characters involved in the dispute, the lower court wrangling that led to the more famous appeal, the aftermath of the case, and the lasting impact of the court’s opinion.

While we must constantly remind ourselves that each case we analyze or teach involves real individuals with real disputes that affected real lives, there is a certain fictional quality to these stories precisely because the judicial opinion is the lead character. Judicial opinions can never be more than an abstract, a description of events that then becomes the accepted narrative. Paul Robert Cohen’s expletive-bearing jacket was expression serving an “emotive function,” according to the Court, not an “absurd and immature antic,” as the dissent would have it, and that made all the difference. Opinions have authors, and authors are necessarily engaged in a project of crafting narratives with a result in mind.

Yet knowing more about how an opinion came to be does give us a richer understanding of its context and, perhaps, some guidance on how to interpret the opinion going forward. This is the project that Shyamkrishna Balganesh undertakes in his compelling and entertaining article The Questionable Origins of the Copyright Infringement Analysis. Continue reading "Copyright Law’s Origin Stories"

 
 

Mapping the Fault Lines of Normative Constitutional Theory

Andrew Coan, The Foundations of Constitutional Theory, Arizona Legal Studies Discussion Paper No. 16-24 (2016), available at SSRN.

How should courts decide constitutional cases? The question has been a long-time favorite of judges and scholars, who have defined, developed, and defended a variety of approaches to the project of constitutional adjudication. Some such approaches privilege the “original public meaning” of the constitutional text; others emphasize judicial precedent; others require close attention to moral considerations; others focus on welfare maximization; others place weight on majoritarian preferences; others look to social movements; others privilege representation reinforcement; and countless others require a complex weighing of these and other factors against one another. When it comes to the application and development of constitutional law, different theorists think that different types of considerations should guide the decision-making inquiry to different degrees, and a great deal of constitutional scholarship centers on the question of how these various considerations should bring themselves to bear on the resolution of constitutional cases.

But the disagreements among constitutional theorists run deeper than the question of how to decide cases; scholars also disagree about how to evaluate the merits of a given decision-making approach. One cannot defend one’s preferred method of constitutional adjudication without identifying reasons why that method is preferable to others. And to identify these reasons, one must have an account of what a successful approach to constitutional adjudication achieves. Should we value methodologies that consistently produce substantively desirable judicial outcomes? Should we value methodologies that best reflect the Constitution’s status as written law ratified by “We the People”? Should we value methodologies that constrain the power of unelected judges? Should we value methodologies that adhere to conventional understandings of “what the law is”? And so on. Different approaches to constitutional decision-making will look more or less attractive depending on the criteria against which we evaluate them. And different people favor different approaches in part because they disagree as to what those criteria should be.

Andrew Coan’s illuminating new article is about this second set of questions—questions that go to what Coan calls the “normative foundations” of constitutional theory. These questions, as Coan readily concedes, are by no means unfamiliar to constitutional lawyers; scholars routinely identify criteria for evaluating a decision-making methodology and, in the course of doing so, have very often set out to defend the relevance of the criteria they use. But what Coan’s article aims to provide is a systematic examination of the competing sets of “first principles” from which different theories of constitutional decision-making begin. Coan’s goal, in other words, is to survey the existing landscape of normative constitutional theory with an eye toward describing and evaluating the various types of reasons and arguments that constitutional theorists regard as relevant to the choice among decision-making methodologies. Continue reading "Mapping the Fault Lines of Normative Constitutional Theory"

 
 

Living with Alzheimer’s: A Fate Worse than Death?

Rebecca Dresser, A Fate Worse than Death? How Biomarkers for Alzheimer’s Disease Could Affect End-of-Life Choices, 12 Ind. Health L. Rev. 651 (2015), available at SSRN.

According to the Alzheimer’s Association’s 2016 Alzheimer’s Disease Facts and Figures, one in nine persons in the U.S. over the age of 65 suffers from Alzheimer’s disease, with the prevalence rising to one in three persons over the age of 85. With lengthening life spans and the Baby Boom generation’s aging, the number of Americans with Alzheimer’s is projected to increase dramatically in the coming decades, from 5.2 million in 2016 to somewhere between 13.8 and 16 million in 2050. The sheer enormity of this projected number sobers medical researchers and health policy makers, inspiring initiatives to develop preventive and curative therapies and humane and sustainable care financing and delivery models.

By contrast, just one case of Alzheimer’s haunts most members of the public: the case they, or a loved one, might develop in the future. The title of Rebecca Dresser‘s article acknowledges this fear. In A Fate Worse than Death? How Biomarkers for Alzheimer’s Disease Could Affect End-of-Life Choices, Dresser considers how knowledge of an increased personal risk of developing Alzheimer’s, gained from biomarker tests, might prompt persons to take steps aimed at avoiding a prolonged course of illness. Wishing to act before symptoms of the disease render them incapable of action, persons fearful of their relatively high risk of developing Alzheimer’s might commit pre-emptive suicide. Less drastically, they might execute advance directives instructing that they should not receive life-saving medical care—or even food and water—once the Alzheimer’s manifests and erases their competency. They might even seek to take advantage of laws in the handful of jurisdictions sanctioning physician-assisted death by executing an advance request for assisted death. For each of these potential responses, Dresser cogently and concisely considers the feasibility and legality of the particular strategy for avoiding “a fate worse than death.” Continue reading "Living with Alzheimer’s: A Fate Worse than Death?"

 
 

Supporting Premarital Agreements

Elizabeth R. Carter, Rethinking Premarital Agreements: A Collaborative Approach, 46 N.M. L. R. 354 (2016).

Premarital agreements (also known as “antenuptial agreements” and “prenuptial agreements”) are agreements entered by spouses-to-be just before marriage. Typically, such agreements involve waivers or modifications of the parties’ legal rights at divorce or at the death of one of the spouses. Premarital agreements do not have a good reputation among academics; such agreements are generally considered exploitative and criticized for frequently leaving ex-spouses impoverished (practitioners, especially those for whom preparing such agreements is part of their practice, may have different views). Contrarian views in this area—as in all areas—are a welcome catalyst for new analysis, and perhaps new prescriptions. So Elizabeth Carter’s “rethinking” of premarital agreements—both how they should be valued and what procedures should surround them—is most welcome.

Carter’s initial point is that both scholarly commentary and legal analysis of premarital agreements is based on unsupported empirical claims that premarital agreements generally involve richer would-be husbands imposing exploitative one-sided terms on poorer would-be wives. Like Carter, I do not know of any reliable data regarding how many people enter premarital agreements, what their motivations are, and how frequently one-sided terms are included in those agreements. However, the view of premarital agreements as instruments of oppression is not entirely mythical: it comes from reading the published opinions involving them (where this scenario is in fact common). But why should we assume that the reported cases accurately reflect the general practice of premarital contracting? Perhaps only the unconscionable agreements get litigated (and appealed)? Agreements that are entered in good faith and are substantively fair are unlikely to be challenged, and if challenged, they will probably not raise the sort of issues that result in reported decisions. Continue reading "Supporting Premarital Agreements"

 
 

Liberty, Equality, Polygamy?

Since the 2003 Lawrence v. Texas (539 U.S. 558) decision in which the United States Supreme Court overruled the criminalization of private homosexual conduct in the United States, the argument that the ruling would lead to same-sex marriage and also to the recognition of polygamous marriage has been made with regularity by Supreme Court Justices and law professors. Most recently, in the 2015 Obergefell v. Hodges decision, the Court proved Justice Scalia right and extended the fundamental right to marry to same-sex partners. (Obergefell v. Hodges, 576 U.S. __ (2015)). In his dissent in Obergefell, Justice Roberts reprised the Scalian slippery slope argument and asked whether “States may retain the definition of marriage as a union of two people….Indeed from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.” (Id. (Roberts, J., dissenting).) Invariably, when asked to legally justify the prohibition of polygamy against constitutional challenge, proponents of exclusively monogamous marriage rely on a host familiar Orientalist tropes as well as assertions of social dangers with little empirical proof.

Regardless of whether one agrees with the practice of plural marriage or same-sex marriage as a moral matter, it has become a requirement in the marriage cases, at least from Perry, Windsor, and now Obergefell, that objections to legalization be based on logical, discernible evidence rather than vague suppositions or, worse, stereotypes. Professor Jonathan Turley’s article The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions examines and challenges the proffered justifications for continuing the criminalization of polygamy. Using two cases, one from Canada that he refers to as “The Bountiful” (Reference re: Section 293 of the Criminal Code of Can., 2011 BCSC 1588), and Brown v. Buhman1 from the United States (947 F. Supp. 2d. 1170 (D. Utah 2013)), Turley argues that post-Lawrence, the ability to show harm from specifically consensual, adult plural marriages is very difficult if not impossible. Continue reading "Liberty, Equality, Polygamy?"

 
 

What is Cyberlaw, or There and Back Again

Jeanette Hofmann, Christian Katzenbach & Kirsten Gollatz, Between Coordination and Regulation: Finding the Governance in Internet Governance, New Media & Society (2016), available at SSRN.

The concept of “cyberspace” has fascinated legal scholars for roughly 20 years, beginning with Usenet, Bulletin Board Systems, the World Wide Web and other public aspects of the Internet. Cyberspace may be defined as the semantic embodiment of the Internet, but to legal scholars the word “cyberspace” itself initially reified the paradox that the Internet both seemed to be free of law and constituted law, simultaneously. The explorers of cyberspace were like the advance guard of the United Federation of Planets, boldly exploring open, uncharted territory and domesticating it in the interest of the public good. The result was to be both order (of a sort) without law, to paraphrase and re-purpose Robert Ellickson’s work, and law (of a different sort), to distill Lawrence Lessig’s famous exchange with Judge Frank Easterbrook.1 For the last 20 years, more or less, legal scholars have intermittently pursued the resulting project of defining, exploring, and analyzing cyberlaw, but without really resolving this tension, that is, without really identifying the “there” there. Perhaps the best, most engaged, and certainly most optimistic embrace of that point of view is David Post’s In Search of Jefferson’s Moose.

Less speculative and less adventurous cyberlaw scholars, which is to say, most of them, quickly adapted to the seeming hollowness of their project by aligning themselves with existing literatures on governance, a rich and potentially fruitful field of inquiry derived largely from research and policymaking in the modern regulatory state. That material was made both relevant and useful in the Internet context via the emergence of global regulatory systems that speak to the administration of networks, particularly the Domain Name System and ICANN, the institution that was invented to govern it. The essential question of cyberlaw became, and remains: What is Internet governance, and what do we learn about governance in general from our observations and experiences with Internet governance? As an intervention in that ongoing discussion, Between Coordination and Regulation: Finding the Governance in Internet Governance is an especially welcome and clarifying contribution, all the more so because of its relative brevity. Continue reading "What is Cyberlaw, or There and Back Again"

 
 

Time to Say Goodbye to Forum Non Conveniens?

Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017), available at SSRN.

The doctrine of forum non conveniens is a mainstay in the modern defendant’s procedural arsenal in transnational cases. Under this common law doctrine, which the Supreme Court first recognized at the federal level in 1947, a judge may consider a number of private and public factors to decide whether a lawsuit over which it otherwise has jurisdiction should be dismissed and (at the plaintiff’s initiative) relitigated in another, non-U.S. forum. In her thorough and thought-provoking article, Maggie Gardner goes beyond the multitude of scholars who have called for the doctrine to be refined, reformed, or limited, and instead calls for its retirement from federal procedural law altogether.

Gardner recognizes the enormity of this task, and suggests jettisoning forum non conveniens only after presenting a careful history of the doctrine and a thorough canvassing of the critiques and reform proposals that have dotted the lower-court and scholarly landscapes over the past few decades. Continue reading "Time to Say Goodbye to Forum Non Conveniens?"

 
 

Im-be-ciles: The Supreme Court, American Eugenics and the Sterilisation of Carrie Buck

Adam Cohen, Imbeciles (2016).

Adam Cohen has written an exhaustive account of the nexus between eugenics, racism and immigration law in the United States. Against the backdrop of the Carrie Buck case, a young, poor Catholic woman, sentenced to a colony for folks categorized as morons, imbeciles and the feebleminded, Cohen provides a stark reminder of the complicity of the Courts, scientists and policy makers in the devolvement of equality and due process for persons labeled undesirable. He reminds us that in the 19th Century “undesirable” was pinned to women who were working poor, Catholic, and not of Anglo (British) origin. These women were segregated from society until aging out of childbearing or were sterilized against their will.

The case of Buck v Bell stains not only the early history of Progressives, adherents to eugenics, but the legacy of Oliver Wendell Holmes who opined, “Three generations of imbeciles are enough,” as he upheld the forced sterilization of women. With the stroke of a pen, countless women were housed in segregated colonies, sterilized and branded for life as the result of an accident of birth and social caste. Continue reading "Im-be-ciles: The Supreme Court, American Eugenics and the Sterilisation of Carrie Buck"

 
 

An Unsafe Financial System

Anat R. Admati, It Takes a Village to Maintain a Dangerous Financial System in Just Financial Markets? Finance in a Just Society (Lisa Herzog ed., forthcoming 2017), available at SSRN.

It Takes a Village to Maintain a Dangerous Financial System, a chapter by Anat Admati in a forthcoming book should be required reading for legislative actors who are thinking about reviewing rules of financial regulation introduced after the onset of the global financial crisis.

Before the global financial crisis, policy-makers believed in risk-free assets and risk mitigation techniques. The Basel Committee on Banking Supervision developed capital adequacy standards to identify and neutralize a range of risks associated with the business of banking. But the crisis revealed weaknesses in the standards, and in their divergent and inadequate implementation, as well as new risks that the standards did not address. At the same time, as Andrew Haldane, Chief Economist at the Bank of England, has acknowledged, “the economic and financial crisis … spawned a crisis in the economics and finance profession.” In responding to the financial crisis, the G20, the Basel Committee on Banking Supervision, the Financial Stability Board, and the IMF announced a new commitment to focus on improving international standards for bank regulation and to ensure that the standards were implemented effectively. Regular reports by these bodies note concerns relating to financial stability, but suggest that they are making progress in achieving the agreed objectives for financial, and particularly bank, regulation. Continue reading "An Unsafe Financial System"

 
 

Is Contract Law Ready for the Internet of Things?

When Amazon announced that it was expanding its Dash Button Program, its stock went up 2.3%. Amazon’s Dash button refers to a wi-fi enabled device that can be attached to a cupboard or refrigerator and allows a customer to order a specific item, such as more laundry detergent, simply by pressing the button. While some wondered whether consumers really needed this, others wondered whether the law was ready for this. As recent events reveal (such as the tragedy of Tesla’s self-driving automobile accident), technology is raising legal questions more quickly than lawmakers can anticipate or respond to them. In her article, Contracting in the Age of the Internet of Things: Article 2 of the UCC and Beyond, Stacy-Ann Elvy considers whether contract law is ready for the Internet of Things, and concludes that the answer is a regretful but resounding No. Contract law is woefully behind the times when it comes to dealing with issues raised by the Internet of Things (“IOT”). Elvy does a frightfully good job of identifying some of the potential problems—are such devices agents? (Probably yes). How should courts assess consumer assent when contracts are entered into through IOT devices? (It’s complicated). Perhaps most frightening of all—won’t the “legion of data” generated by the IOT worsen the preexisting information asymmetry in favor of companies? (Certainly).

Elvy’s article makes three primary arguments. First, where IOT devices enter into contracts on behalf of consumers, existing laws regulating e-commerce may not adequately protect consumers. Second, Article 2 of the UCC and contract law generally are ill-equipped to deal with the IOT. Finally, information asymmetries, exacerbated by the data generated by the IOT, will shift the power balance even more in favor of companies. Elvy makes certain proposals to recognize and respond to these changes in the contracting environment brought about by the IOT. Her proposed changes to Article 2 include prohibiting post-contract formation disclosure of terms in consumer IOT contracts, prohibiting the use of unilateral amendments and defining unconscionability to include high levels of information asymmetry. Elvy also recommends that courts consider the extent to which consumers can access and control the data which they generate. Her proposals are exhaustive and thoughtful and well-worth a read. A short review does not do them justice. Continue reading "Is Contract Law Ready for the Internet of Things?"

 
 

Rethinking Negotiated Rulemaking

Hannah J. Wiseman, Negotiated Rulemaking and New Risks: A Rail Safety Case Study, Wake Forest J.L. & Pol’y (forthcoming 2017), available at SSRN.

Hannah Wiseman’s insightful case study has forced me to rethink my views both on negotiated rulemaking and, more broadly, on all forms of notice and comment rulemaking. Negotiated rulemaking (Reg-Neg) adds one important step—negotiation—to the familiar notice and comment process. Reg-Neg got a lot of attention, both positive and negative, a quarter of a century ago. Many agencies experimented with the process. The D.C. Circuit expressed its approval of Reg-Neg in its 1988 opinion in NRDC v. EPA, 859 F. 2d 156, and Congress legitimated the process by enacting the Negotiated Rulemaking Act of 1990, 5 U.S.C. §§ 561-570.

After attracting an initial flurry of scholarship—pro and con—and after an initial period in which many agencies tried the process, Reg-Neg seemed to disappear both from the scholarly literature and from agency practice. Professor Wiseman has found, and studied, an important context in which Reg-Neg continues to be used, with results that do not fit well with either the views of its supporters or its detractors. Continue reading "Rethinking Negotiated Rulemaking"

 
 

Pregnancy, Accommodation, and the Workplace

Bradley A. Areheart, Accommodating Pregnancy, 67 Ala. L. Rev. 1125 (2016).

In Accommodating Pregnancy, Professor Bradley Areheart takes on the ambitious project of evaluating the current law of pregnancy discrimination in the workplace. Professor Areheart reviews the existing proposals to “accommodate” pregnancy under workplace laws, disagreeing with any characterization of pregnancy as a disability. The article suggests alternative ways of providing these same types of accommodations while avoiding the “disability” label. It is also one of the first published works to examine the Supreme Court’s recent decision in Young v. UPS – a case alleging pregnancy discrimination in the workplace that has generated substantial discussion and debate among legal scholars.

Courts and litigants have struggled for decades with how to formulate the rights of pregnant employees in the workplace. Professor Areheart begins by examining the various protections afforded by the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). In place of treating pregnant workers as disabled or advancing pregnancy-specific accommodation rights, Professor Areheart suggests a different model. Under this new approach, he identifies alternatives that would not present the same risks he identifies for disabled workers yet would still provide important accommodations to pregnant employees. The approach considers accommodation law from a more “gender-symmetrical” point of view. Continue reading "Pregnancy, Accommodation, and the Workplace"