Monthly Archives: January 2015

Putting the Summary Judgment Cart before the Bias Horse in Employment Discrimination Cases

In The Trouble with Torgerson: The Latest Effort to Summarily Adjudicate Employment Discrimination Cases, Professor Theresa M. Beiner challenges a relatively recent Eighth Circuit case, Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011), that argues that employment discrimination cases are no poorer candidates for summary judgment adjudication than other cases. Professor Beiner argues that employment discrimination cases tend to be ill-suited for summary judgment because they usually involve intent issues, which are ill-suited for summary adjudication. In addition, they involve claims of discrimination, which can be more difficult to resolve on summary judgment than at trial because of issues related to implicit bias.

The article is a part of the Nevada Law Journal’s Symposium on the 50th Anniversary of Title VII. The entire symposium is worth a read, with contributions addressing subjects including harassment, retaliation, and employer policies on using employee criminal records. Indeed, some of the other articles also qualify as TWELL (things we love lots). Continue reading "Putting the Summary Judgment Cart before the Bias Horse in Employment Discrimination Cases"

“They’re Coming to Get You, Barbara.”

Julie Cohen, The Zombie First Amendment, 56 Wm. & Mary L. Rev. __ (forthcoming 2015), available at SSRN.

Julie Cohen’s The Zombie First Amendment does not present itself as a piece of cyberlaw scholarship. It’s a treatment of information governance in the post-industrial, information age through the lens of constitutional law, with a broad range of potential applications—from information privacy to campaign finance reform to intellectual property law to network neutrality. In a sense, it’s a meta-cyberlaw paper. It’s not about information technology, but about information as technology.

Any piece by Julie Cohen both demands and rewards a more careful reading than a brief review such as this one can offer. Brevity is today’s currency, however. Begin, then, with the following overview of her argument: Contemporary First Amendment jurisprudence, she argues, is a species of the walking dead, legal doctrine whose form gives the appearance of being a plausibly sentient and responsive entity but whose spirit, soul, and intelligence has been displaced by powers that answer to a different, seemingly unstoppable and almost technological logic. Contemporary information practices have eaten the First Amendment’s brain. Continue reading "“They’re Coming to Get You, Barbara.”"

The Federal Courts Junior Scholars Workshop

This is an unusual entry for JOTWELL, because it presents an event rather than a published work of scholarship. But, I think, it’s appropriate for JOTWELL because the event is indeed something I liked (lots). The Federal Courts Junior Scholars Workshop, now an annual event, is representative of an important recent development in legal scholarship—the proliferation of venues for the presentation of work-in-progress by relatively junior scholars. They supplement faculty-organized research workshops, which typically involve the presentation by one scholar (not always junior) to a group of faculty and students at the host institution, but with few or no other junior scholars in the field present. Faculty-organized research workshops seem to me to operate on a catch-as-catch-can basis: the people in charge of the workshops contact people they know to locate scholars with work far enough along to be worth presenting. And, finally, these workshops are sometimes try-outs for permanent faculty appointments at the host institution.

The newer junior scholars workshops are different. They are usually, though not always, self-organized (the Harvard-Stanford-Yale junior faculty workshop is an exception, to which I’ll return) by younger scholars in the field. They seek submissions, usually abstracts, for the longer papers that will be presented at the workshop. My guess is that these workshops in their early years may not be all that selective, but as each workshop becomes established selectivity increases. These workshops have multiple purposes. First, at least in self-understanding and advertising, is giving junior scholars the opportunity to present their work before it is finished, to an informed audience whose comments might improve its quality. This is enhanced by the presence of senior faculty in the field as commenters. The senior faculty can sometimes become (unexpected) mentors for the junior faculty, and their commitment of time suggests that they might be available as outside reviewers in tenure and promotion processes. And, of course, the events build a community of junior faculty members in the field, particularly important to a junior faculty member who may be the only scholar in her field at her home institution. The host institution, which has to provide at least a modest subsidy for the workshop, gets some visibility in the legal academy as well. (This has some implications for issues of design, as I’ll note.) Continue reading "The Federal Courts Junior Scholars Workshop"

Hypothesizing Regulatory Instability

Erik Gerding’s recent book, Law, Bubbles, and Financial Regulation, is an ambitious and fascinating project that seeks to explain how asset bubbles—a perennial staple of economic history—lead to and, in turn, are exacerbated by financial regulation. Gerding makes it clear from the outset that his goal is to move beyond “fixing immediate symptoms” of a financial crisis and try to uncover the fundamental factors that explain how disasters happen. To this end, he advances what he calls the Regulatory Instability Hypothesis, a conceptual framework for explaining how financial markets (traditionally, a realm of private ordering) and financial regulation (the public sphere) get locked into a deadly spiral leading to a crisis. Gerding identifies five key dynamics that define this interaction: the regulatory stimulus cycle, compliance rot, regulatory arbitrage frenzies, pro-cyclical regulation, and promoting of investment herding. His Regulatory Instability Hypothesis holds that these five distinct dynamics pose danger to financial stability by undermining laws and regulations designed to protect it.

In my opinion, one of the most interesting and novel elements of Gerding’s argument is his concept of the “regulatory stimulus cycle.” Various scholars before Gerding wrote about the multiple causes and consequences of various deregulation campaigns, including privatizations of previously public functions and repeal of specific laws viewed as constraining private markets. In the aftermath of the latest financial crisis, in particular, many were searching for specific legal mechanisms that enabled unsustainable growth in risk and leverage within the financial system in the pre-crisis decades. For example, some scholars argued that the latest crisis could be traced directly to the partial repeal of the Glass-Steagall Act in 1999 and/or the passage of the Commodity Futures Modernization Act of 2000—the two most significant deregulatory legislative acts in recent times. Others (including myself) have focused on specific regulatory or legislative actions enabling financial institutions to conduct business activities that fed the pre-crisis asset bubble. Continue reading "Hypothesizing Regulatory Instability"

We Found Out That Counting Lizard Poop Is Not A Good Way To Count Lizards: Now What?

Adrian Vermeule, Rationally Arbitrary Decisions (in Administrative Law), Harv. L. Sch. Pub. L. & Legal Theory Res. Paper Series (2013), available at SSRN.

Professor Vermeule has a knack for giving irresistible titles to articles that ask deep questions about administrative law—as demonstrated by the essay that is the subject of this little jot, Rationally Arbitrary Decisions (in Administrative Law). The apparent oxymoron grabs attention: Aren’t arbitrary decisions, by administrative-law hypothesis, irrational? Where reasoned decision-making stops, there arbitrariness begins, no?

There is a problem with this neat dichotomy. If you will forgive a tautology, a reasoned explanation for an action, if actually reasonable, shouldn’t depend on reasons that can’t reasonably be given. Sometimes, agencies must act, and they must do so in the teeth of genuine uncertainty. Embedded in the preceding claim is a distinction often drawn between risk and uncertainty. Risk allows for rational assignment of probabilities to outcomes (e.g., there is a 50% chance that a fair coin will turn up heads). Where genuine uncertainty exists, no such assignment of probabilities is possible—e.g., “[no] human actor … has any epistemic justification for attaching probabilities to events that may or may not occur eons in the future.” (P. 4.) When confronting uncertainty, “reasons run out and a relentless demand for further reason-giving becomes pathological.” (P. 2.) Continue reading "We Found Out That Counting Lizard Poop Is Not A Good Way To Count Lizards: Now What?"

The Heir Who Laughs, Laughs Last

John V. Orth, “The Laughing Heir” What’s So Funny?, 48 Real Prop., Tr. & Est. L.J. 321 (2013).

Professor John V. Orth takes a look at the limitations of intestate succession in his recent article, “The Laughing Heir” What’s So Funny. Unless an individual is the last human being on earth, when he or she dies, a surviving relative will exist. How closely related should the relative be to the decedent in order to inherit the decedent’s estate through intestate succession?

Common law canons of inheritance did not include a decedent’s ancestors as his or her heirs. Surviving spouses were also excluded. If a decedent had no descendants, his or her nearest collateral relatives inherited the estate. As long as there was proof of a blood relationship, a remote collateral could inherit the decedent’s estate. Continue reading "The Heir Who Laughs, Laughs Last"