Monthly Archives: July 2013

A Fresh Look at Dukes

Natalie Bucciarelli Pedersen, The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, 44 U. Tol. L. Rev. 123 (2012) available at SSRN.

The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, by Natalie Bucciarelli Pedersen—aside from having quite possibly the best title of any article, ever—is an important and informative reminder that one of the most newsworthy and talked about cases of the past decade, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has import and significance beyond the realm of class action lawsuits. Indeed, as Professor Pedersen makes clear, the Supreme Court “not only reversed the grant of class certification to one of the largest employment discrimination classes ever, but also indelibly altered the substance of employment discrimination law.” (P. 124.) The major contribution of this article is its original examination of the impact of the language and law in the Dukes opinion on substantive Title VII jurisprudence as it applies to the adjudication of disparate impact cases, systemic disparate treatment cases, and implicit bias cases that utilize social framework evidence.

As Professor Pedersen recounts, in 2011, the Supreme Court reversed a grant of class certification to some 1.5 million female Wal-Mart employees who claimed that they were victims of sex discrimination because of inequalities related to the employer’s salary, promotion, and management track policies and procedures. The policies and practices alleged, however, were not explicitly discriminatory. In making out their disparate impact claim, the plaintiffs pointed to the delegation of decision-making discretion to local managers when it came to pay and promotion decisions. In making out their disparate treatment claim, the plaintiffs alleged that despite knowing of the disparate impact conferred upon women by the unfettered discretion afforded to local managers, Wal-Mart intentionally failed to remedy the situation. The District Court certified a class of at least 1.5 million women, and the Ninth Circuit agreed that the class certification requirements set forth in Federal Rule of Civil Procedure 23(a) had been met. The Supreme Court, however, reversed the Ninth Circuit’s holding that class certification had been appropriate in the case, finding that the plaintiffs did not “depend upon a common contention.” (P. 128.) Continue reading "A Fresh Look at Dukes"

The Exceptional Case of Parental Negligence

Elizabeth G. Porter, Tort Liability in the Age of the Helicopter Parent, 64 Ala. L. Rev. 533 (2013).

Recently, there has been a flowering of family law scholarship critically examining what Janet Halley calls “family law exceptionalism,” the tendency in the law to treat the family as a special realm wholly divorced from market relations and to steer family matters, regardless of their economic nature, into family law. Although she never uses the term “family law exceptionalism,” Elizabeth Porter’s new article on parental immunity and negligent supervision cases follows in this vein. The article is an indictment of what she regards as the exceptionally favorable treatment of parents under current tort law. Professor Porter argues for ending the special rules favoring parents, applying ordinary negligence principles in parental liability cases, and ultimately sending more cases to the jury.

As Porter reminds us, it is a particularly appropriate time to re-examine the rules governing parental liability. On the cultural front, the steady stream of tragic cases (whether Newtown, Columbine or countless accidental shootings) has reignited perennial questions about the extent  of parental responsibility to control  dangerous children and whether parents should be held accountable to victims for their failures as parents. On the doctrinal front, the new approach to duty endorsed by the Restatement (Third) of Torts—which calls for presuming a general duty of care and abandoning that presumption only in exceptional cases when there are strong countervailing reasons of principle or policy— has the potential to reopen questions about the scope of parental liability.. Porter’s article suggests that if courts heed  the Third Restatement they may  well conclude that parental liability  cases are not so exceptional after all, ushering in what would be a major, very concrete change in tort doctrine. Continue reading "The Exceptional Case of Parental Negligence"

Rules or Standards For Intestate Succession?

Intestate succession law has traditionally been directed toward accomplishing two objectives: effectuating the likely intent of intestate decedents and minimizing administrative costs. Within the so-called “traditional” family, those objectives are rarely at odds. As a result, intestate succession law has traditionally been relatively simple: the decedent’s property is distributed to the decedent’s spouse and issue, and the only areas of controversy surround how much the spouse should take, and whether distribution to issue should be per stirpes, per capita, or by the UPC’s more refined “by representation” scheme.

In her recent article, however, Professor Susan Gary identifies the growing complexity in intestate succession law. That complexity is a response to increasing recognition that intestate succession statutes designed for the traditional family often frustrate the intent of decedents whose family is not traditional. To deal with non-traditional families, Professor Gary notes that a number of states have attempted to bring domestic partners, children born through assisted reproduction, stepchildren, and even informally adopted children within the intestate succession scheme, and cites a variety of scholarship supporting this expansion. Similarly, she identifies statutory provisions designed to disinherit intestate heirs when it would appear that the decedent would not want those heirs to take; in addition to slayer statutes, she discusses cases of child or spousal abandonment, and cases of elder abuse. These refinements of more traditional intestate succession statutes presumably increase the number of cases in which intestate succession doctrines effectuate the intent of intestate decedents, but, as Professor Gary observes, they are not perfect; they do not anticipate all of the circumstances in which a decedent might want to vary the most common patterns of distribution. Continue reading "Rules or Standards For Intestate Succession?"

Trade, Currency, and International Cooperation

It’s always nice when you can combine outside reading for fun with something that is educational and at least indirectly professionally relevant.  Benn Steil’s economic and diplomatic history of the 1944 Bretton Woods conference, which established the post-World War II global framework for currency relationships and international trade (while also creating the International Monetary Fund and the World Bank) filled this niche for me during a quiet weekend.  While the subject is not literally or directly related to taxation, it touches so closely on finance, macroeconomic policy, and international trade as to occupy a common universe with overlapping concerns.

The book tells a lively story, in which U.S. Treasury economist Harry Dexter White – an ardent economic nationalist yet also a Soviet mole – thoroughly squelched the great English economist John Maynard Keynes (the U.K.’s chief negotiator) in establishing the postwar regime for trade, currency, and capital flows.  With the U.S. economically dominant and the U.K. reduced to begging for loans, Keynes would have had no chance even had he been better at converting his analytical and epigrammatic skills into diplomatic ones. Continue reading "Trade, Currency, and International Cooperation"

Re-Conceiving The Lawyer’s Role And The Foundations of Legal Professional Ethics

W. Bradley Wendel, Lawyers and Fidelity to Law (Princeton University Press, 2010).

In the 1970s and 80s, a significant debate emerged around the role played by lawyers. Based on the American Bar Association model code, associated documents and case-law, several moral philosophers, and a few lawyers, characterised legal representation as comprising two overarching principles.1 The principle of neutrality, they said, demanded that lawyers represent clients or causes they may disagree with morally. The principle of partisanship demanded that they fulfil their client’s wishes to the limits of the law. Provided they fulfil these tasks faithfully, they were morally absolved on the grounds that the role they perform is itself good. This constituted a third principle: non-accountability.

Numerous critics of this ‘standard conception’ of the lawyer’s role found it morally indefensible. Despite some spirited justifications2 and more nuanced rejoinders,3 the balance of debate moved on to the consequences of such a conclusion and the steps that should follow. At one end of the spectrum lay measures such as encouraging lawyers to select clients on moral grounds. The middle ground was occupied by proposals that lawyers have discretion to ignore ethical norms producing immoral outcomes. More radical solutions involved abandoning the adversarial system or the de-professionalization of lawyers. Wendel is one of many scholars who, often in book form, have recently revisited the issue of the standard conception of the lawyer’s role.4 Continue reading "Re-Conceiving The Lawyer’s Role And The Foundations of Legal Professional Ethics"

Colonizing Humanity

Samera Esmeir, Juridical Humanity: A Colonial History (Stanford University Press, 2012).

Samera Esmeir’s ambitious book, Juridical Humanity: A Colonial History, explores the legal transformation of British-ruled Egypt between the 1880s and the 1930s. With news from Egypt the subject of daily headlines, the book is timely and important. However, it is Esmeir’s innovative treatment of her subject that truly makes this book deserving of the widest readership. In contradistinction to a powerful tradition of writing about colonialism, Esmeir sees in the legal colonization of Egypt not the occlusion of Egyptians’ intrinsic humanity, but instead the instantiation of “humanity” as the object of colonial law’s solicitude. This is the “juridical humanity” of the book’s title.

Naming “humanity” as its teleology, Esmeir argues, colonial law sought to reconfigure Egyptian society according to “humanity”’s logic. The pre-colonial legal tradition, one with which the overwhelming majority of Egyptians identified, came to be roundly dismissed as inhuman, barbaric, and violent. With the goal of “humanizing” Egyptian society, colonial law reconfigured Egyptian social relations in a range of contexts: labor, gender, incarceration, the treatment of animals, and so on. European and Egyptian legal elites participated enthusiastically in this “humanizing” project. As Esmeir skillfully shows, however, the effect was not to rid Egyptian society of violence, but rather to produce a different relationship to violence: one that carefully measured, calibrated, and fitted violence to the imperatives of “humanity.” It is hard not to recognize in Esmeir’s account the pre-history of the human rights-led imperialism of our own day, with its lurid depictions of various social oppressions in the non-Western world that legitimize Western military intervention. Esmeir clearly has this in mind. Continue reading "Colonizing Humanity"

Knowing a New Business Model When You See It: Adult Entertainment Innovations And Adaptations in a Post-Napster Era

Kate Darling, What Drives IP without IP? A Study of the Online Adult Entertainment Industry, (February 1, 2013), available at SSRN.

Throughout media history, purveyors of illicit content have always had to think on their feet when faced with economic or legal dilemmas. Never the darling of regulators, law enforcement, or public representatives, adult entertainment companies have pretty much been left to their own devices for dealing with new challenges. It comes as no surprise, then, that in a post-Napster era of expansive networks, easy copying, and free content, porn producers must rethink how they approach their products and profitability.

In her excellent article, What Drives IP without IP? A Study of the Online Adult Entertainment Industry, MIT Research Specialist Kate Darling investigates the current state of the American sexual expression industry to sort out the various perspectives and approaches its players are taking to the shifting ground they currently tread. What she finds is both an affirmation of numerous common sense intuitions (e.g., that porn producers rely less on copyright enforcement and more on lower costs, higher video quality, content curation, and targeted marketing to maintain market share), as well as some surprising discoveries (e.g., that “experience goods” such as live interaction, gaming, and 3D are becoming a staple for building solid online brands). Continue reading "Knowing a New Business Model When You See It: Adult Entertainment Innovations And Adaptations in a Post-Napster Era"

Healthism, Health Care Rights, and the Affordable Care Act

Jessica L. Roberts’s recently published article, “Healthism”: A Critique of the Antidiscrimination Approach to Health Insurance and Health-Care Reform, offers a provocative, thoughtful rebuttal to the antidiscrimination rhetoric surrounding the Patient Protection and Affordable Care Act (“ACA”). Some of the ACA’s most popular reforms, namely, the ban on preexisting condition exclusions, guaranteed issue and renewal, and community rating were touted as eliminating insidious health insurance industry practices that—in then-candidate Obama’s words—“discriminat[e] against those who are sick and need care the most.”1 Roberts cites another commentator who characterized the ACA as a “civil bill of rights for the sick.”2 But, as Roberts aptly notes, the practice of “discriminating” against the insured on the basis of health conditions and expected risk is endemic to commercial health insurance underwriting.3

For her titular concept, Roberts refashions the term “healthism,”4 defining it “as discrimination on the basis of health status.”5 She argues that despite the political rhetoric surrounding federal health reform and ACA provisions intended to eliminate “healthism,” other provisions of the law in fact operate as proxies for health status discrimination. She notes that previous federal statutes intended to eradicate healthism similarly fell short of this goal.6 The ACA, on its face, surely does eliminate discrimination, first, by requiring “guaranteed issue” and, second, by requiring “community rating.” Guaranteed issue means that health insurers must sell a policy to any individual, regardless of preexisting conditions,7 and community rating means that the insurer cannot discriminate in the price of the policy based on preexisting conditions or other health status indicators.8 Continue reading "Healthism, Health Care Rights, and the Affordable Care Act"