Yearly Archives: 2016
Apr 6, 2016 Mario BarnesCriminal Law
“I Do for My Kids” is a timely and thoughtful empirical exploration of racialized access to justice issues with within family courts. Why then, one might ask, should it provide the basis for a jot in the area of criminal law? The answer has to do with the punitive means some jurisdictions are utilizing to enforce the payment of child support obligations.
Using original research, including in-person, ethnographic observations and interviews at multiple sites, the authors detail how “[c]ivil incarceration pursuant to an order of contempt is commonly used as a remedy to enforce child support orders against indigent noncustodial parents.” (P. 3035.) In this work, Professor Brito and her co-investigators, paint a riveting but disturbing portrait of how low-income—and typically black—fathers must negotiate the demands of law and identity within the space of child support enforcement hearings. Continue reading "Un-“Civilized”: On the Criminalization of Raced and Gendered Poverty through Child Support Enforcement"
Apr 5, 2016 Ann TweedyEquality
Angela R. Riley & Kristen A. Carpenter,
Owning Red
: A Theory of (Cultural) Appropriation,
Tex. L. Rev. (forthcoming 2016), available at
SSRN.
Laguna Pueblo writer and critic Paula Gunn Allen has argued that “[t]he American Indian poet is particularly bereft of listeners.” This is due to the fact that she “has difficulty locating readers/listeners who can comprehend the significance of her work, even when she is being as clear and direct as she can be, because . . . differences in experience and meaning assigned to events create an almost impossible barrier.” It occurred to me in reading and Angela Riley and Kristen Carpenter’s “Owning Red: A Theory of (Cultural) Appropriation,” that Indians face similar problems in telling the story of the harms caused by cultural appropriation, particularly those harms relating to intangible aspects of Native identity.
To non-Indians raised on tales of Wild West cowboy and Indian skirmishes and myths of generous Pilgrims who shared their bounty with Indians during the first Thanksgiving—and particularly to white Americans cloaked in racial privilege—fashion designers’ appropriation of Native dress and beer companies’ use of the names of deceased Indian heroes may seem innocuous—or even—as is sometimes argued—like genuine homage. Professors Carpenter and Riley provide the backstory needed to comprehend and contextualize these harms. They also offer compelling ideas for a solution. Most importantly, they show how contemporary appropriations of Native identities are part and parcel of a history of disrespect of Native property rights, including the right to cultural identity—and further that It is because of this colonial history of never-ending loss that non-Indian Americans so often fail to perceive the losses caused by appropriation. And conversely, it is precisely because of this history that the losses caused by appropriation are so devastating to Native peoples and individuals. Continue reading "Contextualizing the Harms Caused by Appropriation of Indians’ Intangible Cultural Property"
Apr 4, 2016 Frank PasqualeTechnology Law
Olivier Sylvain,
Network Equality, 67
Hastings L.J. 443 (2016), available at
SSRN.
From the halls of Congress to the cocktail parties of Davos, “innovation” is celebrated as the central rationale for Internet policy. Whatever its utility decades ago, the term is now overused, a conceptual melange that tries to make up in capaciousness what it lacks in rigor. Fortunately, legal scholars are developing more granular accounts of the positive effects of sociotechnical developments. Olivier Sylvain’s Network Equality is a refreshing reminder that Internet policy is more complex than innovation maximization. Sylvain carefully documents how access disparities interfere with the internet’s potential to provide equal opportunity.
Network Equality makes a critical contribution to communications law scholarship because it questions the fundamental terms of the last twenty years of debates in the area. For at least that long, key internet policymakers have assumed what Sylvain calls the “trickle-down theory of Internet innovation”—that if policymakers incentivized more innovation at the edge of the network, that would in the end redound to the benefit of all, since increased economic activity online would lead to better and cheaper infrastructure. Now that once-“edge” firms like Facebook are rich enough to propose to dictate the terms of access themselves, this old frame for “net neutrality” appears creaky, outdated, even obsolete. Sylvain proposes a nuanced set of policy aims to replace it. Continue reading "Innovation & Equality: An Uneasy Relationship"
Apr 1, 2016 Robert RosenCorporate Law
Adam Badawi,
Influence Costs and the Scope of Board Authority, 39
Iowa J. Corp. L. 675 (2014), available at
SSRN.
Over four score years ago, William O. Douglas told us that directors don’t direct. Since then, there have been multiple attempts to enable directors to direct the corporations they nominally manage, often by proposing or mandating changes in the composition of the board. Directors’ backgrounds, biases, opportunism and group behaviors have been diagnosed as both the cause and cure to the problem of director inaction.
Rather than examining directors, Adam Badawi shifts attention to those outside the board to explain why it is in the interest of the business that directors don’t direct. His focus is not on coalitions within the board, but on lobbying of the board by others in the corporation. So that these other interests don’t spend their time attempting to influence the board (and instead concentrate on activities more profitable to the business), it is essential that boards exercise little of the authority they possess. By delegating authority to management, boards constrain the investment management makes in lobbying the board. Continue reading "Why Directors Don’t Direct"
Mar 31, 2016 Richard MurphyAdministrative Law
Cynthia Barmore,
Auer in Action: Deference After Talk America, 76
Ohio St. L.J. 813 (2015), available at
SSRN.
Administrative law geeks know that Auer deference has been in trouble. This doctrine, which used to go by the much better name of Seminole Rock deference, instructs courts to defer to an agency’s interpretation of its own rule so long as the interpretation is not plainly erroneous. Its primary supporting intuition is that an agency should be better than anyone else at interpreting a rule that it drafted and implements. During the last five years of his life, Justice Scalia mounted a strong campaign to eliminate this doctrine, which he had come to regard as a terrible affront to separation of powers. Although Justice Scalia is now gone, his critique of Auer retains substantial support on the Court. Justice Thomas agrees with it; Justice Alito has expressed strong sympathy; and the Chief Justice might be on board, too.
But, before rushing off to dump Auer in the ashbin of administrative law history, those who prefer to take their separation of powers with a dash of functionalism might like to know: Just how are courts applying this deference doctrine these days, anyway? Fortunately, Cynthia Barmore has shed considerable light on this question in her article, Auer in Action: Deference after Talk America, which was just published in the Ohio State Law Journal. Her hard work reveals that affirmance rates under Auer have declined in recent years and are in line with the rates for other so-called “deference” doctrines. Courts do not, in short, seem to treat Auer as granting agencies free rein to abuse regulated parties with aggressive (mis)interpretations of their regulations. Continue reading "Counting Out Auer Deference"
Mar 30, 2016 Suja A. ThomasCourts Law
Brooke D. Coleman,
The Efficiency Norm, 56 B.C. L. Rev. 1777 (2015), available at
SSRN.
In his year end report, Chief Justice Roberts stated that the 2015 civil procedure amendments were “to address the most serious impediments to just, speedy, and efficient resolution of civil disputes.” Roberts clearly was referring to Rule 1 of the Federal Rules of Civil Procedure, which states that the rules are to be interpreted to achieve a “just, speedy, and inexpensive determination.” In other words, Roberts equated efficiency with inexpensive. The Chief Justice’s comment illustrates the “efficiency norm” problem that Professor Coleman has addressed in her noteworthy article. The courts, the rulemakers, and Congress have defined efficiency too narrowly, and this definition has resulted in fewer trials and an anti-plaintiff bias.
In her article, Coleman considers the important question of how the concept of efficiency should affect litigation. She first recognizes that the number of cases filed in federal court has increased significantly since the rules were adopted in 1938—some of this as the result of the creation of new substantive rights. This phenomenon has lead to criticism of the litigation system. Influenced by and participating in this criticism, the institutional actors of the rulemakers, the judiciary, and Congress have promoted “the efficiency norm.” Under this mandate, they make changes in the name of efficiency and focus on just cost—more specifically on only certain costs—the costs to corporate or governmental defendants. Continue reading "Redefining Efficiency In Civil Procedure"
Mar 29, 2016 Ray CampbellLegal Profession
Before big data, before cloud computing, before ubiquitous smart phones and tablets, and almost before a version of Windows that actually worked, Richard Susskind has been predicting that, eventually, technology will displace lawyers. While the topic of how technology will change law and other professions is now a flavor of the day, you haven’t done your homework if you try to write about how technology will affect law without taking Susskind into account.
Susskind is back with an ambitious new book, co-authored with his son Daniel, entitled The Future of the Professions. This book is both broader and deeper than Susskind’s previous work – broader, in that he takes on all the professions, not just lawyers, and deeper, in that he delves into just what it is that makes professional work different. He addresses head on how advancing technology impacts the core role of professions. Continue reading "All About the Information Substructure"
Mar 28, 2016 Kerri StoneWork Law
Noah Zatz,
Special Treatment Everywhere, Special Treatment Nowhere, 95
B.U. L. Rev. 1155 (2015), available at
SSRN.
This year’s law and scholarship of employment discrimination has invited critical thought, new strategies, and rethinking of traditional legal methods like never before. Among the most innovative pieces is Professor Noah Zatz’s Special Treatment Everywhere, Special Treatment Nowhere, 95 B.U. L. Rev. 1155 (2015). Zatz laments the defensive posture assumed by those on the vanguard of civil rights activism and litigation when, in his own words, “the best defense of civil rights law requires a strong offense.” (P. 1155.)
He proceeds to take issue with the notion that disparate treatment law ought to be color and status-blind, citing the law of affirmative action in particular, and noting that “rather than retreat from ‘special treatment accusations,’” those who wish to preserve and strengthen civil rights laws and protections ought to “name it and claim it,” (p. 1157) meaning confronting these accusations and keeping the law’s (and our) focus on the avoidance of disparate treatment without obsessing over whether this might necessarily invite or involve some special treatment. This eyes-on-the prize approach means endorsing proactive steps that can be taken not only by the courts, but by employers to preempt discrimination. It also means being vigilant about distinguishing legitimate, goal-advancing interventions—that many are quick to dismiss as special treatment—from “raw redistribution.” Ultimately, Professor Zatz concludes, a “[f]ailure to appreciate the remedial context” of affirmative action is precisely what will engender “reckless accusations of ‘special treatment.’” (P. 1157.) Continue reading "Preferential Hiring and “Special Treatment”: It’s all Relative"
Mar 25, 2016 Browne LewisTrusts & Estates
Some multi-parent families are created by law and others are created by science. California and a few other states have acknowledged that a child can have more than two legal parents. Professor Daar calls these multi-legal families or families in law. In their quest to serve their patients, physicians seek ways to enable infertile couples to have healthy children. Those doctors make their “treatment” decisions without considering the legal consequences of their actions. For example, in an attempt to lessen the possibility of a child inheriting a medical ailment from his or her mother, doctors may replace unhealthy mitochondrial with material obtained from the oocyte of a healthy female. The use of this mitochondrial manipulation technology (MMT) may result in a child being conceived using an oocyte containing mitochondrial DNA from two women. Professor Daar refers to this as a multi-genetic family or a family in genetics. Numerous articles and books have been written about multi-parent families. Most of the scholarly literature discusses the family law issues that arise because of the existence of these types of families. In her article, Professor Daar goes in a different direction. She focuses upon the impact that the recognition of multi-parent families may have on the intestacy system.
Professor Daar makes the distinction between legal parents and genetic parents. She explores the steps that can be taken in order for the intestacy system to accommodate multi-legal families. In multi-legal cases, more than two persons have been adjudicated as the child’s legal parents. The article also discusses the intestacy system’s treatment of multi-genetics families. In those situations, even though the parents and the children are related by genetics, their relationships may not be legally recognized. Professor Daar examines the manner in which the children and adults in these families may be treated under the intestacy system. Professor Daar analyzes the options of including multi-parent families under existing intestacy systems, creating new intestacy schemes to accommodate them, or excluding multi-parent families from the intestacy system. Professor Daar analyzes the treatment of multi-parent families under the existing intestacy system. As a part of that analysis, she compares multi-legal families to other nontraditional families. With regards to multi-genetic families, Professor Daar evaluates the treatment of families that are connected to the decedent by blood. Continue reading "Making Connections"
Mar 24, 2016 Benjamin C. ZipurskyTorts
Avihay Dorfman,
Assumption of Risk, After All, 15 Theoretical Inquiries in Law 293 (2014), available at
SSRN.
Avihay Dorfman has written an excellent law review article that ably defends claims about junk-food-and-obesity law, the nature of primary assumption of risk, and the validity of anti-libertarian critiques of assumption of risk doctrine.
Dorfman’s own words (with markers I have added) provide the best synopsis of the three objections he raises to assumption of risk doctrine:
First, it is a conclusory doctrine in the sense that (1) its prescriptions are reached by reference to either other tort doctrines, such as (a) duty analysis, or (b) contract law . . . Second, . . .(2) choosing to be exposed to a risk created by others cannot absolve these others of liability, since such consent is not an analytical feature of liability waiver . . . Third, on a philosophical level, (3) the assumption of risk doctrine is none other than a surface manifestation of a laissez-faire vision of labor markets (and probably of other spheres of action).
(P. 295)
Here, briefly, are Dorfman’s responses to each: Continue reading "Junk Food and Assumption of Risk"
