Monthly Archives: May 2017

Philosophy of Language and Legal Interpretation

Brian G. Slocum, Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning, in The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (Mouton Series of Pragmatics, forthcoming 2017), available at SSRN.

Law is pervasively interested in the proper understanding and application of texts: contracts, wills, trusts, agency regulations, statutes, constitutional provisions, etc.  Legal interpretation is obviously central to legal practice, and it is not surprising that legal scholars would come to look to literary interpretation and philosophy of language for insight. The discussion of literary interpretation, and what lawyers, legal scholars, and judges might learn from it, has been one of the themes of the Law and Literature movement. The recourse to philosophy of language has been slower and less well publicized; however, there is now a growing literature applying philosophy of language to problems in law (e.g., Alessandro Capone & Francesca Poggi (eds.), Pragmatics and Law (Springer, 2016); Andrei Marmor & Scott Soames (eds.), Philosophical Foundations of Language in the Law (Oxford, 2011)).

Brian Slocum is one of the most important scholars working at the intersection of legal interpretation and philosophy of language, as exemplified by his recent book, Ordinary Meaning (University of Chicago, 2015). In that book, Slocum contrasted one of judges’ favorite touchstones when interpreting documents, “ordinary meaning,” with the idea of “communicative meaning.” In the present article, Pragmatics and Legal Texts, Slocum offers a parallel contrast: between “literal meaning” and “communicative meaning.” To understand the “literal meaning” of a text or statute, one need only understand the meanings of each constituent term and how they fit together grammatically and logically to express a proposition. This process is meant to be independent of any considerations of the context of utterance. The article defines “communicative meaning” differently, as “what an appropriate hearer would most reasonably take a speaker to be trying to convey in employing a given verbal vehicle in the given communicative-context.” (P. 2, footnote omitted.) This meaning can differ from the literal meaning because communication is a cooperative activity, which presupposes several further norms that can affect the communicative meaning of a statute or text in the context of utterance. Continue reading "Philosophy of Language and Legal Interpretation"

Unpacking the Shortcomings of the Vaccine Injury Compensation Program

Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Penn. L. Rev. 1631 (2015).

The National Childhood Vaccine Injury Act of 1986 established the Vaccine Injury Compensation Program (“VICP”) as a replacement regime for vaccine-related injuries. The VICP is funded by a seventy-five cent tax on each vaccine dose. Individuals alleging vaccine-related injuries file a petition, which is adjudicated by a special master of the U.S. Court of Federal Claims. Petitioners may seek damages for, inter alia, health care and rehabilitation costs (past and anticipated), though damages for pain and suffering or death are capped at $250,000. The law provides broad legal immunities for vaccine manufacturers, including preemption of tort claims for design or warning defects. In 2011, the U.S. Supreme Court interpreted the preemption provision to include design defects where the vaccine manufacturer failed to incorporate a safer alternative design.

The VICP maintains a Vaccine Injury Table that lists compensable injuries—these are deemed “on-table” injuries, and causation is presumed. All other injuries are deemed “off-table” injuries, and petitioners have the burden of proving causation. This distinction is significant; between 1999 and 2014, six vaccines were added to the table, and none had an on-table injury. During that same time period, the percent of petitions alleging off-table injuries increased from 25% to 98%. Importantly, the statute does not mandate that the data needed to meet the causation bar be collected by manufacturers or disclosed to the public; moreover, FDA regulations have not filled this legal gap. To the contrary, as officials from the FDA and CDC explain, “no active effort is made to search for, identify and collect information [on vaccine adverse events], but rather information is passively received from those who choose to voluntarily report.” Given the challenges in demonstrating causation and the lack of data to analyze causation, the net result is a large decrease in awarded claims and a large increase in uncompensated harms.

There can be no question that vaccines are a public health triumph. At the same time, however, with statistical certainty a small number of vaccinees will suffer catastrophic injuries or death. As health policy expert Michelle Mello has argued, vaccinations involve a high stakes gamble where the overwhelming majority will benefit but no one knows (or can predict with reliable certainty) who will suffer harm. Over the past three decades the VICP has adjudicated over 14,000 petitions, and thus there is ample data from which to evaluate the VICP. Herein steps Nora Freeman Engstrom. Her article, A Dose of Reality for Specialized Courts: Lessons from the VICP, is an elegant and comprehensive investigation of the VICP, and her findings highlight several troubling trends. Continue reading "Unpacking the Shortcomings of the Vaccine Injury Compensation Program"

How Local Police and Prosecutors Protect Immigrants

Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 245 (2016), available at SSRN.

Local governments are increasingly taking the role of protectors in these fear-filled times for federal immigration policy. A popularly used term for this protective role of cities is sanctuaries. But what does giving sanctuary mean in the immigration and local law and policy context? What protections are arising?

One of my favorite empirical scholars working at the intersection of immigration and criminal justice, Professor Ingrid Eagly, set out to gather data on the policies of local police and prosecutors that protect immigrants. Professor Eagly’s empirical work is always illuminating because through her clinical work with clients, she has her fingers on the pulse of what matters right now for people in the trenches.  For example, she conducted the first national study documenting the dearth of representation by counsel among immigrants facing removal. She also conducted the first study of the impact of televideo proceedings to adjudicate the cases of people in immigration detention.

For her latest project, Professor Eagly used public records requests to obtain policies pertaining to immigrants from police, sheriff’s and prosecutors’ offices in four of the most populous counties of the most populous state in the nation: Alameda, Los Angeles, Santa Clara, and Ventura counties in California. These four counties offer a particularly powerful vantage point into immigrant-protective policies pioneered among local law enforcement because they are among the most immigrant-protective jurisdictions in the nation. Studying the approaches taken by the vanguard can help inform future developments as other jurisdictions try to forge their own policies. Continue reading "How Local Police and Prosecutors Protect Immigrants"

Starting with Consent

James Grimmelmann, Consenting to Computer Use, 84 Geo. Wash. L. Rev. 1500 (2016), available at SSRN.

The Computer Fraud and Abuse Act (“CFAA”), enacted in 1986, has long been a source of consternation for jurists and legal scholars alike. A statute marred by long-standing circuit splits over basic terminology and definitions, the CFAA has strained under the weight of technological evolution. Despite thousands of pages of law review ink spilt on attempting to theoretically resuscitate this necessary but flawed statute, the CFAA increasingly appears to be broken. Something more than a minor Congressional correction is required.

In particular, the central term of the statute—authorization—is not statutorily defined. As the CFAA has morphed through amendments to encompass not only criminal but also civil conduct, the meaning of “authorized access” has become progressively more slippery and difficult to anticipate. Legal scholarship has long voiced concerns over the CFAA, including whether certain provisions are void for vagueness,1 create opportunity for abuse of prosecutorial discretion,2) and give rise to unintended negative impacts on employee mobility and innovation.3

Enter James Grimmelmann’s Consenting to Computer Use. In this work, Grimmelmann offers us a clean slate as an important and useful starting point for the next generation of the CFAA conversation. He returns us to a first-principles analysis with respect to computer intrusion, focusing on the fundamental question of consent. Continue reading "Starting with Consent"

Insurance as the Big Bad Wolf of Big Data

Max N. Helveston, Consumer Protection in the Age of Big Data, 93 Wash. U. L. Rev. 859 (2016).

In this insightful and well-researched article, Consumer Protection in the Age of Big Data, Professor Max Helveston arguably has opened stage two of a movement in contracts scholarship assessing the dangers and opportunities presented by large scale data aggregation for contract law and practice. Specifically, recent decades of contract scholarship have explored generalized issues surrounding information era contracting practices by producers with access to extraordinary amounts of data regarding their consumers. We could (but probably shouldn’t) refer this early stage as the “Oh crap! What does it all mean?” inquiry; it is probably better to stick with “Big Data & Contract 1.0.” That early stage examined the rapidly changing landscape of consumer-producer interactions in the early Internet and information-era context. The gist of Big Data & Contract 1.0 generally boils down to the proposition that consumers are largely screwed by the ability of producers to use data aggregation and analysis to bore down into consumers’ lives and preferences in a way never before possible in pre-information era contracting.

Despite the broad scope of the title, Consumer Protection in the Age of Big Data moves the discussion to “Big Data & Contract 2.0” by unpacking data analytics and aggregation in a specific contractual context: insurance. Insurance has always been problematic for contract law. The relationship between insurer and insured is traditionally perceived as a paradigm case involving gross inequality of bargaining power. The contracts involved are highly adhesive, consumers generally must depend upon insurance agents to select appropriate coverage and terms, and the resulting terms—which consumers often receive only weeks after they have purchased the insurance and will likely read only when a [hopefully] covered loss occurs—are highly technical and opaque to the typical consumer. This ground is well-traveled, and Helveston addresses the problem from a new angle. Continue reading "Insurance as the Big Bad Wolf of Big Data"

The President’s Power of the Purse

Eloise Pasachoff, The President’s Budget as a Source of Agency Policy Control, 125 Yale Law Journal 2182 (2016).

The younger generation of administrative law scholars is frighteningly good. They provide helpful motivation to step up one’s own game but also opportunities to marvel in the work they are doing. One of my favorite scholars to read is Eloise Pasachoff. (A note: we are not friends. I think I have met her briefly in person only once.) Her latest insightful article examines the president’s power of the purse.

Pasachoff focuses on the Office of Management and Budget’s (OMB) role in the agency budget process. Specifically, she describes seven levers of OMB control, finds the process lacking on certain normative criteria, and then proposes reforms to the political branches and the administrative state to improve accountability. If OMB’s regulatory review worries you, Pasachoff has bad news, arguing that OMB’s budget role is more problematic. Continue reading "The President’s Power of the Purse"

(Un)Equal Opportunity Shaming

Wendy N. Hess, Slut-Shaming in the Workplace: Sexual Rumors & Hostile Environment Claims, 40 N.Y.U. Rev. L. & Soc. Change 581 (2016).

This article, by Professor Wendy N. Hess, picks up on an important issue, largely ignored in the legal literature until now: so-called “slut-shaming” in the workplace. “Slut-shaming” involves denigrating a person – most often a woman – on the basis of her actual or perceived sexual activity. It reportedly takes place quite a bit in the workplace, and usually with deleterious effects on victims’ reputations, work product, and career trajectories. This article thus picks up on a salient issue in the contemporary American workplace and provides an excellent exposition of a split among courts that reveals the unwillingness of some judges to acknowledge the empirical truth that men who are perceived as promiscuous are often seen as “studs,” while women so perceived are seen as “sluts,” and subsequently downgraded in the esteem of co-workers and employers. Once so thoroughly presented, this collision between this double standard and the antidiscrimination mandate of Title VII crystallizes and cannot be ignored.

The article critiques the ways in which courts have dealt with hostile work environment sexual harassment claims stemming from rumors and/or attacks premised on the plaintiff’s perceived sexual promiscuity. The article expertly lays out courts’ historic confusion as to when alleged harassment has occurred “because of” the victim’s sex, as required by Title VII, and makes the compelling point that “Courts have often failed to recognize the gendered aspect of sexual rumors about women.” It boils down to the fact that, as Professor Hess contends, in many situations, due to the so-called “double bind” or “double standard,” seemingly similarly situated men and women could not, in reality, be any more differently situated. And when it comes to “slut-shaming,” Professor Hess could not have found more fertile ground upon which to make her point. She thus exhorts courts to identify the double standard that makes rumors about a female employee’s sexual promiscuity “uniquely insulting to women.” Continue reading "(Un)Equal Opportunity Shaming"

Same Base, Different Taste: The Cultural Ingredient in Property Law

Taisu Zhang, Cultural Paradigms in Property Institutions, 41 Yale J. Int’l L. 347 (2016), available at SSRN.

Can we bring preferred legal norms to culture, asking culture to adapt, or do we bring culture to the formation of legal norms, asking law to adapt? This is not just a normative question causing consideration of moral or consequentialist choices. It is also an empirical one. Regardless of what we think we ought to do or might want to do, the real world may very well be constructed to preordain the sequence. Indeed, the embeddedness of culture in societal architecture may limit the bandwidth of available opportunities for law to act as an influence exogenous to culture.

To understand the interplay between culture and the law, it is useful to evaluate historical developments of legal doctrines from a comparative perspective. That is the eminently valuable project undertaken by Professor Taisu Zhang in his article, Cultural Paradigms in Property Institutions. Continue reading "Same Base, Different Taste: The Cultural Ingredient in Property Law"

A Call, and Roadmap, to Create Legal Research Classes that Meet the Experiential Standard

Alyson M. Drake, The Need for Experiential Legal Research Education, 108 Law Libr. J. 511 (2016).

Experiential learning is currently one of the buzz words of legal education. Recent changes to the ABA Standards and Rules of Procedure for Approval of Law Schools have focused greater attention on learning outcomes and assessment and increasing opportunities for learning and practicing skills that students will use as attorneys. In fact, ABA Standard 303(a)(3) requires a minimum of 6 credit hours of experiential course work.

Traditionally, experiential learning was widely thought to be the domain of law school clinics and externships, or field placements. However, the increased credit hour requirement for experiential learning has caused law schools to review their curriculum and determine whether sufficient experiential learning opportunities exist to meet the minimum requirement. Accordingly, there is a push to design new courses, or redesign existing courses, to meet a third type of experiential learning termed simulation courses, as described in ABA Standard 304. In order to qualify as a simulation course under the standard, a course should provide an experience “reasonably similar” to client representation although the student is not working with a real client.

Professor Alyson M. Drake’s article calls for the creation or retooling of stand-alone research classes that will meet the requirements to be designated as experiential classes. An increase in the number of research classes categorized as experiential will provide two benefits. First, and most importantly, it can serve to provide additional legal research instruction beyond the first year of law school. It will also support the mission of law schools to expand course offerings that meet the experiential standard. Continue reading "A Call, and Roadmap, to Create Legal Research Classes that Meet the Experiential Standard"

“Coke-Upon-Littleton of the Fist”: Law, Custom, and Complications

Robert Deal is a historian at Marshall University. His book is a nuanced account of the nineteenth-century British and American whaling industry and how it was misunderstood by contemporary lawyers and judges and continues to be misunderstood by present-day legal scholars.

Herman Melville famously wrote in Moby-Dick that whalemen settled their disputes using “hard words and harder knocks – the Coke-Upon-Littleton of the fist” (Moby-Dick, Chapter 89). As Deal shows, however, little violence actually sprung up when the crews of two (or more) ships pursued a whale but only one took it. Continue reading "“Coke-Upon-Littleton of the Fist”: Law, Custom, and Complications"