Private No More: Exposing the Praxis of Comparative Law for What It Is

I liked Privacy Revisited, not the least because Ronald Krotoszynski’s book – both explicitly and implicitly – lays bare and grapples with comparative law’s thorniest methodological problems. It is inspiring to see a colleague struggling so honestly and openly with these issues.

This might sound like curious praise. After all, this is a book about privacy law in a variety of jurisdictions and I have not said that what I most appreciate about Privacy Revisited is its masterful treatment of that confounding subject.  The reason for this is that Krotoszynski’s sweeping survey of privacy law in the United States, Canada, South Africa, the United Kingdom, and the European Court of Human Rights is as knotty as the subject itself. Continue reading "Private No More: Exposing the Praxis of Comparative Law for What It Is"

Courtesy Without Copyright

It is now a familiar point that positive law accounts for only part of the systems that regulate human behavior. Robert Ellickson’s cornerstone treatise, Order Without Law, showed how closely-knit groups construct norm-based rule structures that govern behavior more efficiently than state-created law. In the past decade or so, scholars have investigated a number of areas in which individuals engaged in creative production similarly opt for norm-based systems in lieu of copyright or trademark law.

Professor Robert Spoo’s recent article, Courtesy Paratexts: Informal Publishing Norms and the Copyright Vacuum in Nineteenth-Century America, represents a fascinating and important contribution to this growing literature. Spoo’s article harkens back to the mid- and late 1800s, a time when foreign authors received no copyright protection in the United States. In the absence of formal legal protection for foreign authors’ works, domestic publishers created a series of agreements with each other that the first house to print copies of a foreign author’s novel would be able to do so without competition—even in the absence of enforceable copyright law. These informal agreements were expressed and furthered to a large extent by courtesy paratexts: Brief written passages in the front matter of a book in which the book’s author would affirm that the publisher was acting within the courtesy of the trade to print their work, and exhorting readers to buy only authorized editions to assure the author and publisher alike their fair remuneration.

Continue reading “Courtesy Without Copyright”

Disruptive Platforms

Orly Lobel, The Law of the Platform, 101 Minn. L. Rev. 87 (2016), available at SSRN.

Until recently, the law of the online platform involved intermediary liability for online content and safe harbors like CDA §230 or DMCA §512. The recent rise of online service platforms, a/k/a the “Uberization of everything,” has challenged this model. What Orly Lobel calls the “platform economy”—which includes the delivery of services (see Task Rabbit), the sharing of assets (see Airbnb), and more—has led to new laws, doctrinal adjustments, and big questions. What happens when the internet meets the localized, physical world? Are these platforms newly disruptive, or old issues in new wrapping? And how do we best design regulations for technological change? The Law of the Platform will appeal to those looking for thoughtful discussion of these questions. It will also appeal, more practically, to those searching for an encyclopedic overview of the fast-developing law in this area, from permitting requirements to employment law to zoning.

Lobel argues that the platform economy represents the “third generation of the Internet”: built on online platforms, but affecting offline service markets. Unlike the first generation of the Web, which connected us to information through search engines, or the second generation, which disrupted publishing, news, music, and retail, the third generation is characterized by “transforming the service economy, allowing greater access to offline exchanges for lower prices.” The platforms do not themselves own the physical assets or hire the labor to which they provide access. Instead, they sell access and information—and desperately try to avoid labels like “employer” or “bank” that might lead to regulation. Lobel maps a number of these digital platforms to their physical world counterparts: Airbnb and VRBO to hotels; Parking Panda to parking sites; Uber and Lyft to taxis; and EatWith to restaurants. Continue reading "Disruptive Platforms"

Secrets and Lies in the History of US Adjudication

Amalia Kessler’s book, The Invention of American Exceptionalism, is a rich history of American procedural development. The book, which is meticulously researched, sets procedural developments in their political context, and is an excellent example of a social history of law. She describes the relationship between 19th-century procedural developments and struggles over both capitalism and race. She traces English influences on our history, such as the development of equity practice, and French influences, such as the Freedmen Bureau Courts, which were inspired by French conciliation courts. Among other things, Kessler unearths the American equity tradition and with it fights over judicial power versus lawyer (and jury) power, as well as the development of lawyering as we know it today.  There is too much in the book for me to adequately summarize it, so instead I will offer two vignettes from the book, the first conceptual and the second a narrative, both focused on the antebellum history of equity.

The first, conceptual, vignette describes the requirements of historic equity procedure and helps us understand our own practices by making them strange to us. Indeed, one of the best things about reading a historical study such as this is learning to understand our world in new ways by comparing it with a past understood on its own terms. So it is with the story of equity and the judicial search for truth. The modern cliché is that there was never a better test of truth than the cross examination. This idea, Kessler shows, was invented in the first decades of the nineteenth century by lawyers seeking to show their value to clients and to society. In equity practice at that time, a very different view of how to get to the truth prevailed: the truth would be best obtained in secret, without the pressures of the parties bearing down on witnesses to alter their stories. Continue reading "Secrets and Lies in the History of US Adjudication"

The Causes of Punitiveness

Locking Up Our Own: Crime and Punishment in Black America is a look at the recent history of African-American attitudes toward crime. In many ways the book is a codicil to Michelle Alexander’s well-known work, The New Jim Crow: Mass Incarceration in the Age of the Age of Colorblindness, and to the writing of people like Glenn Loury and Ian Haney Lopez.  Alexander, Loury and Lopez argue that today’s hyper-incarceration and long sentences result from a white-dominated legal system bent on removing blacks from the streets, using the “war on drugs” as a cover, and imply that things would be different if blacks had been in control of the system. Locking Up Our Own contests those views.

Making Forman’s case is difficult, because largely white legislatures were and still are in charge of criminal justice in most jurisdictions. But Forman’s focus is on Washington, D.C., where, from the mid-1970s through the end of the twentieth century (the period covered by the first five chapters in his book) African-Americans were in power. Not only were that city’s chiefs of police black (as was the case in many major cities), but the municipal council—the body effectively in charge of crime definition and sentencing in D.C., given Congress’ acquiescence in matters of criminal justice—was usually majority African-American as well. Yet the criminal justice policies in that city were at least as punitive as those in other jurisdictions. Continue reading "The Causes of Punitiveness"

Looking For Competencies in all of the Right Places

Neil W. Hamilton & Jerome M. Organ, Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop an Integrated Professional Identity (Professional Formation), 83 Tenn. L. Rev. 843 (2016), available at SSRN.

Few people would say that U.S. legal education is doing an absolutely perfect job. While there have been a number of different criticisms and reform proposals over the past thirty years, some common themes have emerged. One theme is that students are not equipped with the range of skills they need to help clients address multi-faceted issues in an interdisciplinary world.  Additional themes are found in the influential 2007 Carnegie Foundation report. Summarizing this report, one coauthor explained that legal education has generally done a good job with respect to the “first apprenticeship,” which is the “cognitive apprenticeship” of teaching students to think like a lawyer; that legal education has made modest improvements with respect to the “second apprenticeship” which involves skills and practice; and that legal education has done a poor job with respect to the “third apprenticeship,” which involves professional identity and values.

One recent article that addresses these legal education gaps is Neil Hamilton and Jerry Organ’s “Thirty Reflection Questions” article. Thirty Reflection Questions begins by discussing the concept of “learning outcomes,” including learning outcomes related to professional identity and values. This article cites the definition of learning outcomes found in a 2015 ABA accreditation Guidance Memo: “Learning outcomes must consist of clear and concise statements of knowledge that students are expected to acquire, skills students are expected to develop, and values that they are expected to understand and integrate into their professional lives.” For those who have not paid particularly close attention to the ABA Council’s relatively new Standard 302, the interpretative Guidance Memo, or the related literature, Part I of the article provides a very useful overview of the learning outcomes accreditation requirement and the rationale that lies behind it. Part II discusses how a law school curriculum can be designed in order to foster learning outcomes related to professional identity, taking into account research from other fields and data about law student development.1 Finally, Part III contains the thirty reflection questions referenced in the article’s title. This Part explains how a law school or faculty member can use the thirty questions to help law students obtain meaningful post-graduation employment, acquire the competencies that legal employers and clients want, and develop their professional identity.

I particularly like Part III because of the way that it links the topics of post- graduation employment, the “competencies” that legal employers want their new hires to possess, and professional identity formation. Part III explains how a law school or professor can use a law student’s interest in the first topic – his or her own employment outcome – as a way to foster development with respect to the other two outcomes. The authors explain that the breakthrough in their own thinking was when they decided to go where the students are and to recognize that virtually all students want post-graduation employment that is meaningful to them given their life experiences, talents and passions. (P. 876.) The reflection questions provide an “enlightened self-interest” entry point for students to proactively develop the competencies they need to serve clients and the legal system well and to develop their professional identity and a commitment to the legal system. Continue reading "Looking For Competencies in all of the Right Places"

Digital Regulation and Digital Markets

Rory Van Loo, Rise of the Digital Regulator, 66 Duke L. J. 1267 (2017), available at SSRN.

Consumers and corporations today exist in a world of highly intermediated markets. Digital intermediaries aid consumers in their decisions with more and more regularity. They sort the good from the bad, the expensive from the inexpensive, the suitable from the inappropriate. Private and public digital intermediaries collectively act as a soft regulatory force in the marketplace. Private intermediaries like Amazon, AirBnB, Priceline, Carfax, Google, Houzz, and Zillow help consumers make purchasing decisions on goods and services like diapers, automobiles, airline tickets, hotel rooms, summer vacations, car rentals, furniture, apartments, and almost everything under the sun.  Public intermediaries like the Consumer Financial Protection Bureau and the Affordable Care Act via their mortgage calculator and insurance exchanges, respectively, assist consumers make key life decisions about buying a home and purchasing health insurance. All of these innovative tools, made possible by technologically-driven intermediation, are generally designed to lead to better, more informed decisions in the absence of heavy-handed government regulation – but do they? How do we better ensure that such innovative, digital intermediaries work in the best interests of consumers? How should we think about law and regulation in the marketplace given the rise of these digital intermediaries?

In his recent article, Rise of the Digital Regulator, Professor Rory Van Loo explores these and other questions concerning digital intermediaries. These questions will likely be some of the most vexing and consequential ones for corporations, law, and society in the near future as many of the most valuable and disruptive businesses today are in the business of serving as digital intermediaries for consumers. Professor Van Loo’s article has two core motivations: (1) it highlights the under-appreciated shortcomings and challenges posed by digital intermediaries; and (2) it offers early sketches of potential legal reforms to better address the rise of digital intermediaries. Continue reading "Digital Regulation and Digital Markets"

Law in the Cultivation of Responsibility and Trust

Seana Shiffrin, Enhancing Moral Relationships through Strict Liability, 66 U. Toronto L.J. 353 (2016).

Consider the following everyday scenario as a simplified version of complex contracting. Having been invited to a dinner party a guest asked the host what to bring. “A dessert would be nice,” replied the host, to which the guest responded: “consider it done!” On the morning of the party the guest purchased a delicious cake from a celebrated bakery and was ready to make good on the promise. Sadly, in the evening, as the guest got the cake out of the fridge, it was covered with odd green spots and seemed inedible. Clearly, the guest is at no fault for what just happened, but what should the guest do next: Get another dessert on the way to the party or just go empty-handed? Seana Shiffrin’s thought-provoking article Enhancing Moral Relationships through Strict Liability describes and answers this dilemma as it manifests itself in the domain of contracts’ performance (fault is irrelevant and thus the guest should get another dessert before heading to the party!) — but it goes further and also compellingly explains why demanding full performance of contracts, irrespective of fault, is the appropriate legal approach, both morally and legally.

The article offers a defense of the performance phase of the contractual strict liability doctrine from a novel perspective. The doctrine sets a default rule: unless otherwise agreed between the maker of a promise (promisor) and its recipient (promisee), the promisor is the one who is responsible for full performance, even if reasons outside of his or her control make the task arduous. The “strictness” of the promisor’s duty to perform is restrained only by the doctrine of impracticality that may release the promisor from the burden of performance but merely in extreme and rare cases. Continue reading "Law in the Cultivation of Responsibility and Trust"

Does the Constitution Require Due Process Abroad?

Nathan S. Chapman, Due Process Abroad, U. of Ga. Legal Stud. Research Paper No. 2017-07 (2017), available at SSRN.

Do the rights protected by the Constitution constrain United States government actions outside our borders, especially those directed at noncitizens? The longstanding debate over this question has heated up again in recent years. It is one of the issues raised by the litigation over Donald Trump’s travel ban executive order. It is also a key element of Hernandez v. Mesa, a case recently addressed by the Supreme Court that raises the question of whether the Fourth Amendment applies to a case where U.S. Border Patrol agents fatally shot a 15-year-old Mexican boy just across the border.1

Nathan Chapman’s important new article on the application of the Due Process Clause of the Fifth Amendment abroad, is a timely and important contribution to this debate. It compiles extensive evidence indicating that the Clause was originally understood to constrain U.S. government actions outside our territory, regardless of whether the targets are American citizens or not. If so, it may be that other constitutional rights also apply in such situations. Continue reading "Does the Constitution Require Due Process Abroad?"

The Age of Imperial Governorship?

Miriam Seifter, Gubernatorial Administration, 131 Harv. L. Rev. (forthcoming, 2017), available at SSRN.

The idea that state constitutions might provide terrain for comparative analysis that could shed new and important light on the federal Constitution is hardly a new one. But for those of us preoccupied with the study of Article II presidential power, it is hard to imagine a much more powerful illustration of that lesson than Miriam Seifter’s fruitful and creative study of what she calls “the modern regime of gubernatorial administration.”

Seifter demonstrates that, state variations notwithstanding, contemporary governors frequently enjoy an array of tools to direct administrative governance that, in important respects, presidents would envy. These include reorganization authority, the power to privatize government functions, and greater authority to influence independent state agencies than the President would have over federal counterparts. Governors typically have a more firmly grounded directive power over the policy content of administrative decision making. Moreover, because of overlap in the domains of state and federal regulatory concern, these authorities effectively give governors power to significantly “resist or advance key federal government programs.” (P. 19.) Continue reading "The Age of Imperial Governorship?"