Organ-izing Your Estate

Reid Kress Weisbord, Anatomical Intent, 124 Yale L.J.F. 117 (2014).

Professor Reid Kress Weisbord’s article astutely addresses the growing problem of demand outpacing supply for organ donations needed for lifesaving medical procedures. Professor Weisbord’s discussion of the debate surrounding whether compensation should be allowed for posthumous organ donations to encourage higher donation rates focuses on the parameters of a proposed regulatory system to respect the wishes of the donor. This respect for the decedent’s preference for whether their organs may be sold by his or her estate forms the foundation of the article and is referred to by Professor Weisbord as “anatomical intent.”

The article describes a system that would allow compensation for organ donations by striking a balance that both encourages donation by avoiding unnecessary hurdles, and yet still deters fraud and undue influence. Professor Weisbord addresses this balancing act by suggesting specific parameters for registration of anatomical intent that are “sufficiently secure to protect the donor but sufficiently simple to avoid deterring willing donors from registering their intent,” and default rules when no expression of anatomical intent has been made that “respect the autonomy, privacy, and religious liberty interests of non-donors by presuming that the decedent prefers to prohibit the postmortem sale of his or her bodily remains absent an affirmative indication of intent to donate.” Continue reading "Organ-izing Your Estate"

 
 

The Symbiotic Relationship Between Privacy Law and Anti-Discrimination Law

Jessica L. Roberts, Protecting Privacy to Prevent Discrimination, 56 Wm. & Mary L. Rev. (forthcoming, 2015), available at SSRN.

Jessica Roberts’ upcoming article, Protecting Privacy to Prevent Discrimination, explores the pros and cons of enacting privacy protections to thwart discrimination. Using the Genetic Information Nondiscrimination Act (GINA) as her primary example, Roberts argues that the two areas of law may “operate symbiotically rather than separately.” Thus, privacy law may be used to further anti-discrimination goals and vice versa.

Roberts’ article contains a thoughtful discussion regarding the different principles underlying privacy law and anti-discrimination law. The article also raises interesting issues about the extent to which the right to privacy has, over time, evolved. As originally conceived, the privacy torts and their statutory counterparts sought to further the norm of autonomy. The wrong that resulted from an intrusion upon an area of solitude or the public disclosure of a private fact was the invasion of privacy itself. But Roberts suggests that privacy law may also be used as a means of preventing and addressing more tangible harms occurring in the employment context by working in harmony with anti-discrimination principles. Continue reading "The Symbiotic Relationship Between Privacy Law and Anti-Discrimination Law"

 
 

Do Corporate Managers Have a Duty to Avoid Taxes?

Reuven S. Avi-Yonah, Just Say No: Corporate Taxation and Corporate Social Responsibility __ NYU J. Law & Bus. __ (forthcoming), available at SSRN.

The recent wave of corporate inversion transactions, in which domestic companies essentially move their headquarters abroad to lower their U.S. tax bill, is just the latest in a decades-long trend of aggressive tax avoidance behavior by corporations. From the government’s perspective, inversions and other tax avoidance strategies erode the U.S. tax base and impose a costly enforcement challenge on Treasury and the IRS. But from the perspective of corporate managers, aggressive tax planning may simply be part of the corporation’s duty to maximize shareholder value. Reuven Avi-Yonah questions this latter proposition in Just Say No: Corporate Taxation and Corporation Social Responsibility. He offers a compelling argument that corporate managerial duties are not hopelessly at odds with the goal of promoting better corporate tax compliance.

Avi-Yonah frames the issue of corporate tax avoidance as one of corporate social responsibility (CSR). If it is legitimate for corporations to engage in activities that do not directly benefit shareholders—for example, involvement in philanthropic causes—then it should be legitimate for corporations to act as good tax citizens. On the other hand, if CSR is outside of the scope of legitimate corporate functions, then presumably corporations should seek to minimize their tax liability as much as possible. Continue reading "Do Corporate Managers Have a Duty to Avoid Taxes?"

 
 

Do Voluntary Compliance Programs Really Improve Environmental Law?

Cary Coglianese and Jennifer Nash have added yet another thoughtful contribution to the debates over whether voluntary compliance programs can significantly improve environmental law and policy. This thorough and careful empirical review of the most important voluntary environmental compliance programs is essential reading for anyone interested in environmental law and policy.

In the 1990’s and early 2000’s, a strong strain in environmental legal scholarship argued that environmental regulation was too punitive, inflexible, and rigid. According that scholarship, regulation punished regulated parties who sought, in good faith, to comply with the law; it imposed regulatory standards without regard to the benefits of the regulation as applied to a particular regulatory party, or of the feasibility or appropriateness of compliance for a particular regulatory party; it was unable to keep up with complex and rapid economic and technological change. Many of these critiques were initially raised and made prominent by Bob Kagan and Eugene Bardach, beginning with their 1982 book Going by the Book: The Problem of Regulatory Unreasonableness. Continue reading "Do Voluntary Compliance Programs Really Improve Environmental Law?"

 
 

The New World Order for Lawyers and the Legal Profession(s)

Ronit Dinovitzer & Bryant Garth, Lawyers and the Legal Profession, (UC Irvine School of Law Research Paper No. 2015-19), available at SSRN.

One of the main concerns of the authors is the structure of the legal profession in which perpetual reproduction of hierarchies forms a contest among different elements of the profession. The configuration of the profession shapes its research which places corporate lawyers and firms at the top of the hierarchy. This seems to stem from the early Cravath idealisation of law firm development. Even though the Cravath model dates from the late 19th century, it reverberates still in the 21st century and has captured scholars’ thinking. It appears difficult to shake off these established idealisations and models when discussing the legal profession. Dinovitzer and Garth (D&G) endeavour to show how these cleavages rip through the study of legal professions.

“Lawyers and the Legal Profession” draws on the research done on the structure of the legal profession, its divisions, lawyers’ backgrounds (gender, ethnicity, class), law firms and globalisation. The range is broad but there is one caveat, which is most of the work referred to is based on research done within the US. It is legitimate to question this given the global differences between legal professions, regulatory systems and the like. Although the Cravath model might have been the blueprint for law firm organisation that was exported by American lawyers—and its residues are apparent—whether it remains the dominant model is open and contested, even, perhaps, within the US. See, for example, the rise of the “smart” law firm (Wald). I return to this later. Continue reading "The New World Order for Lawyers and the Legal Profession(s)"

 
 

Bricolage Jurisprudence

Roger Cotterrell, Why Jurisprudence Is Not Legal Philosophy, 5 Jurisprudence 41 (2014), available at SSRN.

Most people who use the terms at all treat “jurisprudence” and “legal philosophy” as interchangeable terms. In “Why Jurisprudence is Not Legal Philosophy,” Roger Cotterrell argues for a distinct meaning for the two terms, and for a greater emphasis on jurisprudence, in comparison to what he perceives as undue current attention to and an unduly high valuation of legal philosophy.

For Cotterrell, legal philosophy is the application to law, usually at a high level of abstraction, of ideas from philosophy, sociology, economics, or other disciplines in the humanities or social sciences. His particular concern is that much of what goes on under “legal philosophy” today—in particular, under what he calls “contemporary legal positivism”—inclines towards questions about what is true “essentially” or “necessarily” of all legal systems (or legal systems “in all possible worlds,” he might have added). These kinds of inquiries might be the sort of thing that is of interest to professional philosophers, Cotterrell maintains, but they are of little interest—and little use—to practicing lawyers. Continue reading "Bricolage Jurisprudence"

 
 

Fair Use Safe Harbors?

Michael C. Donaldson, Refuge From The Storm: A Fair Use Safe Harbor For Non-Fiction Works, 59 J. Copyright Soc’y U.S.A. 477 (2012), available at SSRN.

So much has been written on the fair use case law in the U.S. that it would seem nigh impossible to find something new to say about it. But new things are indeed possible. Michael Donaldson, who practices entertainment law in Los Angeles and has represented many clients in copyright disputes in the film industry, has made four significant contributions to the fair use literature in his article “Refuge From the Storm: A Fair Use Safe Harbor for Non-Fiction Works,” which was published in the Journal of the Copyright Society in 2012.

One contribution is the concept of fair use safe harbors. Copyright professionals are used to speaking of safe harbors when it comes to the statutory limits on liability of Internet service providers for the infringing acts of others. Some of us also use that term when discussing the judge-made limit on secondary liability for developers of technologies having substantial non-infringing uses. But we have shied away from the safe harbor concept in fair use cases, perhaps because the Supreme Court was unwilling to endorse presumptions of fairness for parodies in its Campbell v. Acuff-Rose decision. Donaldson’s article makes a persuasive argument that a fair use safe harbor does exist for certain uses of pre-existing materials in non-fiction works, and it opened my mind to the possibility that other fair use safe harbors might also exist. Continue reading "Fair Use Safe Harbors?"

 
 

An Intimate Look at the Rise of Data Totalitarianism

Dave Eggers, The Circle, Vintage Books (2014).

One of the greatest challenges faced by cyber scholars and policymakers is how to predict the undesired social consequences of technological developments and to design the best policies to address them. Digital technology makes this challenge even harder: change is swift and getting swifter, and is often formulated in technical terms.

This is where legal scholarship and policymaking could benefit from a novel. The Circle by Dave Eggers is a dystopian novel about the digital era. Many legal scholars have written over the past decade on the surveillance society, big data, contextual privacy, the right to privacy, the right to be forgotten, transparency and accountability. However, the analysis of these issues in the legal literature remains abstract. The Circle offers a mirror image of our daily digital experiences, helping us to imagine what it would be like to live in a society of total transparency, and to experience the gradual loss of autonomy. The Circle tells a story about the human condition in the info era, the ideology of the digital culture, and the political structure which serves it. It could help us see in real time the social implications of digital technology, identify the forces that come into play, and design more concrete strategies to address them. Continue reading "An Intimate Look at the Rise of Data Totalitarianism"

 
 

Restructuring Family Law

Why does our current family law system so frequently fail children, and how can we fix it? These are the central questions asked by many family law scholars. Often, the proposed solution is a substantive one. Many scholars, for instance, have advocated altering the “best interests” standard, changing the rules for establishing parentage, or expanding marriage to include same-sex couples so that their children can enjoy greater stability.

In her book, Failure to Flourish: How Law Undermines Family Relationships, Professor Clare Huntington offers a different perspective. For Huntington, family law’s failure is less a matter of substance and more a matter of structure. The law is structured in ways that actively undermine family flourishing. Some of these structural features have obvious impacts on family law. Marriage laws that exclude LGBT couples, for example, are structural impediments to long-term stability for these couples and their children. But many of the structures Huntington identifies are ones that we may not realize undergird family law. Access to public transportation, the existence of sidewalks, playgrounds, and community spaces, and zoning laws that permit multi-generational dwellings, for example, all influence the daily lives of families, encouraging or discouraging families to become embedded in their communities and to be able to balance work, school, and leisure, all of which are factors that lead to long-term stability and flourishing. Many of these structures are designed without consideration for their effect on families. Continue reading "Restructuring Family Law"

 
 

Moving Beyond the Pregnant/Non-Pregnant Dichotomy in Pregnancy Discrimination Law Based on the Lived Experiences of New Mothers

Saru M. Matambanadzo, The Fourth Trimester, 48 U. Mich. J.L. Reform 117 (2014).

In The Fourth Trimester, Saru Matambanadzo braids personal narratives of her own pregnancy and birthing experience with legal analysis and with concepts and research from nursing and midwifery to craft a rich and courageous critique of current employment law’s application to pregnant women and new mothers. Matambanadzo’s thesis is that the law erroneously treats pregnancy as a discrete nine-month timeframe when in fact the physical and emotional effects of pregnancy linger, extending “into the first three months after delivery, and sometimes beyond.” (P. 124). She also addresses the shortcomings of laws that protect against pregnancy discrimination more generally. The Fourth Trimester concretely illuminates the ways in which the limitations of the current framework of federal law disadvantage workers who become pregnant and give birth by, for example, failing to adequately support breastfeeding and to provide the time needed after birth for the mother-infant dyad to become less interdependent.

Matambanadzo’s compelling arguments add a new dimension to legal scholarship on pregnancy in that they challenge not only the treatment of pregnant workers but also the firmly ingrained notion of pregnancy itself. Indeed the dichotomy between pregnant and not pregnant is paradigmatic in American culture—so much so that it exemplifies other black and white dichotomies, as illustrated by the expression that one cannot be “almost pregnant.” Matambanadzo successfully convinces the reader to rethink the notion of pregnancy itself. Continue reading "Moving Beyond the Pregnant/Non-Pregnant Dichotomy in Pregnancy Discrimination Law Based on the Lived Experiences of New Mothers"

 
 

Democracy as a Cause of and a Solution for Hyper-Incarceration

Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio St. J. Crim. L. 133 (2011).

One of the last articles written by the late Andrew Taslitz (known as Taz to his friends) was entitled The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration. The piece is quintessentially Tazian. It brings together Taz’s concern for racial minorities and criminal defendants, his belief in the reformist potency of democracy, and his fascination with social scientific findings (including research on “happiness”!), in a provocative effort to tackle the single biggest problem in our criminal justice system today: mass incarceration. His prescriptions in the article—in particular his assertion that “populist, deliberative democracy” can be a way of softening the harshness of American criminal justice—are worth taking seriously.

As Taz described it, populist, deliberative democracy (or PDD) is not regular old democracy. Rather, in the criminal justice context it involves all “social groups,” including convicted offenders, in deliberations that take place in multiple venues, with the expectation that “compromise rather than domination” will occur. He contrasts this type of democracy with “raw populism” that is not deliberative and that tends to be based on less information about competing interests. Although Taz did not think PDD would by itself result in less reliance on incarceration, he does marshal some strong evidence that it could move the country in that direction. Continue reading "Democracy as a Cause of and a Solution for Hyper-Incarceration"