Yearly Archives: 2016

Automatic – for the People?

Andrea Roth, Trial by Machine, 104 Georgetown Law Journal 1245 (2016).

Crucial decision-making functions are constantly migrating from humans to machines. The criminal justice system is no exception. In a recent insightful, eloquent, and rich article, Professor Andrea Roth addresses the growing use of machines and automated processes in this specific context, critiquing the ways these processes are currently implemented. The article concludes by stating that humans and machines must work in concert to achieve ideal outcomes.

Roth’s discussion is premised on a rich historical timeline. The article brings together measures old and new—moving from the polygraph to camera footage, impairment-detection mechanisms such as Breathalyzers, and DNA typing, and concluding with AI recommendation systems of the present and future. The article provides an overall theoretical and doctrinal discussion and demonstrates how these issues evolved. Yet it also shows that as time moves forward, problems often remain the same. Continue reading "Automatic – for the People?"

Corporate Dystopia

Sometimes reading a book about one’s own field can be a painful experience, not because there’s anything wrong with the book, but because the book is so instructive and insightful as to highlight one’s own shortcomings of knowledge and understanding. I had this bittersweet experience with Jerry Davis’ The Vanishing American Corporation.

The vanishing corporation in question is the big, publicly-traded manufacturer that dominated both economy and society from the end of World War II through the 1970s. Since 1980, this kind of company has been disappearing, relatively speaking. But we knew that, didn’t we? Sure, what with restructuring and downsizing, our awareness is keen. But I’m not sure we have appreciated the extent of the change and grasped its implications. That’s where Jerry Davis comes in. Davis, who is on the both the business and sociology faculties at Michigan, brings the perspectives of both disciplines to bear as he takes a broad view of the evolving role that corporations play in society. The presentation is also historical, as makes sense for an account that asks us to compare what we have now with what we have lost. The book takes us from post-war managerialism and a world where the big corporation is far and away the dominant employer, to the economic crisis of the 1970s and eroding confidence in American managers, to the leveraged restructuring of the 1980s, and finally to the tech-centered present. The focus is on employment, welfare provision, and the corporation’s social presence in tandem with an account of the evolution of shareholder-manager relations and corporate governance. The big corporation starts to shrink after 1980 and keeps on doing so. This starts with a big bang: the conglomerate bust up of the 1980s, and with it, the end of life-time career tracks and narrow salary dispersions within corporate hierarchies. Thereafter, between competition abroad and shareholder value maximization at home, the process continues more quietly but just as determinedly. Gradually, corporate institutions give up (or, in some cases, default on) the responsibilities for social welfare provision they assumed in the years after World War II. Today, a company centered in a national economy in which welfare provision was remitted to the state in the years following World War II is ceteris paribus a fitter competitor than a US company saddled with the burden of providing medical benefits for its employees. Meanwhile, what were once corporate careers have evolved into temporary corporate jobs, and not all that many of them, particularly in the tech sector. Future generations may not get corporate jobs at all, instead performing piecework tasks distributed through internet clearinghouses. Continue reading "Corporate Dystopia"

Is the CISG Irrelevant?

John F. Coyle, The Role of the CISG in U.S. Contract Practice: An Empirical Study, U. Penn. J. Int’l L. (forthcoming 2016), available at SSRN.

Very few American contract courses cover the CISG. (My book gestures at coverage; my course doesn’t.) That was true before the recent lamented trend toward a one-semester course, and it is increasingly the rule today. Why? Contract professors I’ve talked to on this subject typically justify themselves by asserting that the CISG is rarely relevant in domestic practice. But such casual empiricism, when asserted in a company mixed with comparativists, can seem irresponsible. What if we’re wrong?

Now comes John Coyle to test that conventional account. Of course, there’s nothing easier to publish than a surprising empirical finding. (That such findings are rarely replicable is an embarrassment.) Articles confirming instead of rebutting our priors are thus especially important to celebrate. Coyle tells teachers of contract law that we’ve gotten it basically right: the CISG is less popular than the Congress. He does so in a mixed-methods paper notable for its carefulness and restraint. I like it lots. Continue reading "Is the CISG Irrelevant?"

Minding American Law

Every law student worth her salt has read, or at least heard of, Oliver Wendell Holmes and The Common Law.1 His formulation of the reasonable man (or, as we call it now, reasonable person) standard structures the foundation of the law school curriculum. Susanna Blumenthal’s Law and the Modern Mind sheds light on a curious figure lurking behind that reasonable man – the “default legal person,” a phrase of Blumenthal’s creation. The default legal person standard, the determination whether people were mentally competent and thus legally responsible, “stood at the borderline of legal capacity, identifying those who were properly exempted from the rules of law that were applicable to everyone else.” (P. 12.) This quirky character “effectively delimited the universe of capable individuals who could be made subject to the prescriptive authority of the reasonable man…. [He] was supposed to remain at the margins of the common law, standing for the presumption of sanity that, jurists expected, would be warranted in most cases.” (Id.) On the one side lay rationality and legal responsibility; on the other, madness and legal exoneration. It was up to jurists, with the aid of mental health doctors, to discern the difference between the two, and therein lies the project of Blumenthal’s book.

When scholars have examined the mind and the law, they have largely centered their investigations upon the criminal law and the lurid, sensational insane murderer. Blumenthal turns our attention instead to private law, where mental capacity suits were “a common occurrence.” (P. 10.) While these cases were less bloody than their criminal law counterparts, they nonetheless spilled over the pages of the press, created voluminous records, and tied judges in evidentiary knots. Continue reading "Minding American Law"

The Devil is in the Details

Christopher J. Walker, Legislating in the Shadows, 165 U. Pa. L. Rev. (forthcoming 2016), available at SSRN.

It generally starts with a phone call. A Congressional staffer might ring up a federal agency and request the agency’s assistance in thrashing out the details of a new law. Usually, there’s already a working draft of the law; more rarely, the staffer just has parameters or specifications in mind for how the final law ultimately ought to look and what it ought to accomplish. Depending on the situation, the agency might send back a redlined mark-up of the draft bill, or else write a draft of the law from scratch. As the bill wends its way through Congress, the agency hovers on the sidelines, red pen in hand, ready and willing to offer additional technical drafting assistance as needed. The entirety of the exchange between staffer and agency—the request, the response, and any follow-ups—remains informal, off-the-record, undocumented, and confidential, hidden from view from the White House, from OMB, and (needless to say) from the public.

This is the zone of “Legislating in the Shadows” that Christopher J. Walker brings into the light in his thought-provoking forthcoming article. This article builds upon Professor Walker’s recent empirical study for the Administrative Conference of the United States (ACUS), which generated a list of recommendations that ACUS adopted in December 2015. In “Legislating in the Shadows,” Professor Walker moves from description to assessment and critique, deftly distilling from his findings their most pointed—and sometimes disquieting—implications for the doctrines of administrative law and statutory interpretation. Continue reading "The Devil is in the Details"

Improvising the Future of Worker Mobilization

Michael M. Oswalt, Improvisational Unionism, 104 Calif. L. Rev. 597 (2016).

Massive nationwide mobilization of low-wage workers and their advocates (mainly since 2012, though preceded by the nationwide “Day Without an Immigrant” one-day strikes in 2006 and 2007) has spurred recent changes in state and local labor standards: increases in the minimum wage to fifteen dollars an hour, paid sick leave, and measures to address wage theft, abusive scheduling practices, and misclassification of employees as independent contractors. As Michael Oswalt explains in Improvisational Unionism, the fast food, Fight for 15, and Walmart strikes did not produce bargaining leverage, but instead something possibly more difficult to conjure: public awareness and a sense among workers that something could be and should be done.

The article explains how these one-day strikes were different from many of the labor strikes since the Depression. Some were initiated by a single employee who was angry at poor working conditions and lack of respect, some were inspired by news and social media coverage of protests elsewhere, and some were the result of organizing by community groups; unions only later began to lend support. Workers acted collectively and with the support of unions, yet the workers and the unions both knew that the unions hadn’t a prayer of representing them for purposes of collective bargaining. It is unclear whether this activism – what Oswalt, with his penchant for catchy phrases, calls organizing by unions, but not union organizing – will result in any lasting change beyond the state and local minimum wage increases. But what is clear is that labor unrest is once again a part of the contemporary debate even as its form and goals have altered quite significantly since the strikes of the post-WWII period through the death of the strike in the early 1990s. Continue reading "Improvising the Future of Worker Mobilization"

Designing Delusion Doctrine

Joshua C. Tate, Personal Reality: Delusion in Law and Science, 49 Conn. L. Rev. __ (forthcoming 2017), available at SSRN.

In Personal Reality, Professor Tate takes us on a wide-ranging tour through cases of delusional testators, empirical psychological studies, and assorted doctrinal reform proposals. This is all in the service of figuring out what to do with the insane delusion doctrine, which gives rise to cases with colorful facts but also judicial applications that raise red flags. In the end, Tate presents us with his solution: transforming the insane delusion doctrine from a sword for will contestants into a shield for will proponents. This is a clever and useful contribution to the lively debate over this doctrine, and this article is a must-read for those intrigued by this area of trusts and estates law.

The article starts with a history of the insane delusion doctrine. Beginning in the early 1800s, the legal doctrine developed concurrently with the scientific concept of monomania, or an irrationally held false belief on one subject that coexists alongside an otherwise rational mind. For example, in the case of Dew v. Clark, a testator believed that his daughter was from infancy an agent of Satan despite her being by all accounts of good character; he otherwise did not possess any other peculiar beliefs. If such a delusion affects the disposition in a will, as the court found that it did in that case, the delusion can lead to the will’s invalidation. The doctrine was not limited to the estates and trusts context, but its development in the realm of contract law took a different path. There, the legal realists made it a primary target, claiming that it was just a proxy for fairness determinations, which should be made explicit. As a result, the doctrine was eventually phased out and replaced with an inquiry geared towards assessing the fairness of the contractual transaction and the effects of undoing it. Continue reading "Designing Delusion Doctrine"

A Duty To Sell Life-Saving Medicine?

William M. Janssen, A “Duty” To Continue Selling Medicines, 40 Am. J. of Law & Med. 330 (2014), available at SSRN.

Imagine that you have a rare, life-threatening medical condition. You are prescribed a drug that is critical to your survival. You thrive on the prescribed drug and your health improves significantly. However, only one company manufacturers this drug. Unfortunately, due to contamination during the production process, the manufacturer experiences inventory shortages. As a result, you cannot get prescriptions filled as ordered by your doctor, and your health deteriorates rapidly. Does the drug company have a legal duty to continue selling you the prescribed medicine? And, if the manufacturer’s negligence caused the inventory shortage, can you sue the company for tort-based damages? Professor William M. Janssen tackles these intriguing questions in his recent article, A “Duty” To Continue Selling Medicines.

I was fascinated by the dilemma that Janssen lays out in his article. He begins his exploration of the legal duty question with a compelling and heart-wrenching tale. In 2004, a Salt Lake City man was diagnosed with a rare, life-threatening disease, but he thrived after receiving a biological enzyme replacement therapy. In 2010, however, the biologic manufacturer reduced its inventory in order to make space available to produce a different therapy. At around the same time, a virus struck the manufacturing facility, contaminating the product, and in addition, the biologic was somehow contaminated during the production process with tiny pieces of steel, rubber, and fiber. These events led to a shortage of the drug, and the Utah patient received only 70% of his prescribed dosage. When he died, his widow brought suit alleging that the manufacturer failed to use reasonable care to ensure an adequate supply of the biologic. Her claim failed in court based on the finding that the manufacturer had no legal duty to continue to supply the drug. Specifically, the Utah court rejected the widow’s argument that the manufacturer engaged in affirmative wrongdoing by allowing the biologic to become contaminated by the virus, and thereby creating a drug shortage. Rather, the court found that the alleged medicine shortage was merely a failure to act (nonfeasance), and therefore, tort law did not provide a remedy. Continue reading "A Duty To Sell Life-Saving Medicine?"

Trojan Horse, or Merely a Mask for the Costume Ball?

Edward Kleinbard, The Trojan Horse of Corporate Integration, 152 Tax Notes 957 (Aug. 15, 2016), available at SSRN.

Edward Kleinbard’s The Trojan Horse of Corporate Integration critiques the U.S. Senate Finance Committee’s current proposal for corporate integration. This is an important read for those who have not yet come to grips with the forces at play in contemporary tax policy. Kleinbard refers to these forces as the “political economy agenda” behind the proposal. That agenda has as much to do with appearances relating to tax liabilities as it does with any cash actually being paid.

Most tax policy analysis has historically assumed that it is the amount of tax that is actually paid that matters most. Taxes paid are resources that are no longer available to the private sector; taxes not paid are not available to the public sector. At bottom, the tax policy challenge has usually been seen as balancing the deadweight losses that are inevitable with resources taken away from the private sector with the market failures associated with leaving deployment of all resources in private hands. This view of the impact of taxes is all well and good for economists to theorize about, but does not capture very much of the political decisions taking place in the real world about the type of taxation that should be adopted. Continue reading "Trojan Horse, or Merely a Mask for the Costume Ball?"

Reconfiguring Property Theory and Legal Rules in the Sharing Economy

Shelly Kreiczer-Levy, Consumption Property in the Sharing Economy, 43 Pepp. L. Rev. 61 (2015).

In this moment of the sharing economy, Shelly Kreiczer-Levy explores why we can no longer think in terms of the traditional categories of private and public or neatly divide objects purchased for personal consumption and property intended for commercial exchange. The lines between these fundamental categories are being dissolved.

The effect is profound and wide-ranging. With the dissolution of boundaries comes the need to revise legal rules and doctrines germane to the regulation and functioning of an economy in which sharing is the norm rather than an occasional aberration. Property law and theory are at the heart of this project of revision and are central to Kreiczer-Levy’s analysis. Continue reading "Reconfiguring Property Theory and Legal Rules in the Sharing Economy"