Monthly Archives: October 2017
Cynthia Grant Bowman, Recovering Socialism for Feminist Legal Theory in the 21st Century
, 49 Conn. L. Rev.
117 (2016), available at SSRN
In the aftermath of the 2016 presidential campaign and the dramatic defeat of an avowedly feminist Hillary Clinton to a demonstrably misogynistic Donald Trump, many have called into question the future of feminism. Clinton’s loss to a significantly less qualified candidate and the startling statistic that fifty-three percent of white women voted for her opponent raises questions about the persuasive power of mainstream feminism. Clinton’s campaign revealed the stubbornness of misogyny both in the political system and socially. Yet, even as misogyny became increasingly apparent in the primaries and then more blatant in the presidential race, for progressive women, Clinton’s gender identity and her liberal positions on women’s issues were not enough to overcome their economic concerns and social concerns. Rather, they were drawn to Senator Bernie Sanders’ reinvigorated socialism in the primary race even though they eventually voted for Clinton in the general election.
Prior to this recent campaign, as Cynthia Grant Bowman notes in her article Recovering Socialism for Feminist Legal Theory in the 21st Century, socialism had been largely absent from mainstream party politics in the United States. However, it was critical in the ideological development of a number of social movements in the 1960s and 70s, including those for civil rights, labor rights, and women’s rights. In her article, Bowman seeks to now reintroduce this work to feminist legal theorists to advance an “agenda for both research and legal reform.” (P. 119.) Continue reading "A Socialist Feminist Legal Theory for Our Time"
Alexandra D. Lahav, Procedural Design
(2017), available at SSRN
An elegant logic seems to animate the intricate mechanics of civil procedure. To determine whether a requested remedy is appropriate, courts must identify the scope of a dispute, consider whether the law provides a potential basis for judicial action, resolve factual disagreements, apply the law to the facts, and reexamine that application when necessary. These abstract requirements manifest as an ostensibly sequential process of pleading, discovery, trial, and appeal, interspersed with dispositive motions.
In theory, each sequential stage of litigation incorporates data developed in prior stages, enabling courts to make progressively more informed decisions. Although a stage analyzed in isolation may appear to involve disjointed maneuvering, a broader choreography unites and structures all stages of a civil action. But what happens if the choreography unravels, jumbling the order of adjudication?
Alexandra Lahav’s new article, Procedural Design, challenges tidy sequential accounts of civil adjudication. The article builds from an empirical observation to a normative conclusion. Empirically, Lahav observes that civil litigation in federal courts does not follow the “textbook” sequential progression that commentators often assume. Instead, “a federal lawsuit may proceed in almost any order” (emphasis in original). She then contends that this departure from presumed ideals requires rulemakers to articulate guiding principles for the progression of adjudication. The article suggests three normative approaches, although one need not agree with Lahav’s typology of cures to accept her diagnosis. Continue reading "Sequential Progression of Dispute Resolution in Federal Courts"
In March of 2016, Cambridge University Press published the American volume of the Feminist Judgments (FJ) series. This tome was preceded by the Canadian, Australian, and Northern Irish editions which rewrote High Court decisions and opinions from the International Court of Human Rights. The American edition follows the same tradition as previous volumes, articulating legal precepts and theories drawing from feminist jurisprudence as well as critical race theory. The subject areas covered include pay equity, marriage, work, occupational options and limits, benefits, reproductive justice and sexuality. What ties these areas together is the issue of gender [in]equality as constitutive of both law and culture.
This book is a fascinating read, because contributors drew from practice as well as theory, creating a philosophy of law which not only incorporates social justice principles but the effect of law on the lives of people. Authors refrained from “theory-speak,” and the plethora of footnotes that plague student edited law reviews. Thus, writing flows, it is crisp and it is passionate; passionate because the subjects discussed touch at the center of what it means to be human and female. Continue reading "Feminist Judging"
Amy J. Schmitz, Remedy Realities in Business-to-Consumer Contracting
, 58 Ariz. L. Rev.
213 (2016), available at SSRN
How should the law respond to the plight of consumers who have little viable recourse when a business breaches their contract? For an overview of this problem and a review of the potential strengths and weakness of online dispute resolution (ODR), there is no better article to read than Remedy Realities in Business-to-Consumer Contracting (Remedy Realities), Professor Amy Schmitz’s contribution to a symposium in honor of the late Professor Jean Braucher, herself a leading writer about and advocate of consumer protection in business to consumer contracts.
Professor Schmitz’s article first reviews the reasons consumers find themselves with limited recourse when disappointed with their business’s performance, including take-it-or-leave-it form contracts that disclaim warranties, limit remedies, and require often one-sided arbitration and a waiver of class actions. In addition, consumers “lack the time, knowledge, or patience” to pursue their claims and are beset with business strategies that deter remedy seeking. Although legal literature has well-documented these problems, Schmitz’s article sets forth a nice summary and adds important data, such as the waning of class arbitration in the years subsequent to the U.S. Supreme Court’s curious (in my view) decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), which reinforces arbitration and class waivers. Remedy Realities does much more than this, however. Inspired by Professor Braucher’s work on consumer protection, Schmitz evaluates in some detail how ODR may ameliorate the consumers’ plight. Continue reading "Are Online Dispute Resolution Systems the Answer?"
Nelson Tebbe’s aspiration is nothing less than teaching us all to think more clearly and coherently about issues of marriage equality and religious freedom. For anyone paying attention, this bandwidth of legal disputes is white hot. And it is rare to find such a thoughtful voice on these questions, which keep coming at us but are rarely dealt with as skillfully and thoughtfully as in Tebbe’s work. Just last June, for example, the United States Supreme Court took cert on a case from Colorado, involving a wedding cake baker who says his expressive voice is implicated in his work. His religious beliefs mean that he cannot participate in making the cake for a same-sex couple. The baker is represented by the conservative Alliance Defense Fund and the ACLU represents the couple.
Tebbe’s book, although published before the case made it up to the Supreme Court, tells us how he would like us to think about the outcome. In public accommodations, such as businesses that are open to the public, the law does not force speech when it orders such a business to comply with non-discrimination mandates. Instead, we should recognize that by opening their doors to the public, the owners of Masterpiece Cakeshop have taken a voluntary step into society. Particularly with questions of religious freedom and racial discrimination, we have a strong background of past engagement with analogous issues. We also have deep legal and social commitments to treating customers equally, without reference to race, religion, national origin, marital status, and now, sexual orientation. Continue reading "The Value of Moderation, Tebbe-Style"
Kristin Hickman and Nicholas R. Bednar, Chevron’s Inevitability
, 85 Geo. Wash. L. Rev.
5 (2017), available at SSRN
Chevron deference is the cause of more wasted energy than any other doctrine in administrative law. True, the hopes and illusions that spur Chevron’s opponents onwards are perfectly intelligible. In some cases, the cause is a fervent, if cockeyed, constitutional vision; in other cases, a principled free-market libertarianism that becomes associated with opposition to Chevron (even though it is hardly obvious that Chevron has any intrinsic pro-regulatory bias); or a principled legalistic concern that judges, rather than agencies, should “say what the law is” (even though the law may itself mandate deference). But the result is so much less than the effort. A handful of lower-court judges, including then-Judge Gorsuch, have criticized the doctrine on constitutional grounds; so has one Justice, Clarence Thomas. But of course Justice Gorsuch might or might not see the issue the same way from his new seat, and the Court’s other Justices range themselves somewhere between “comfortable with the prevailing approach,” on one end of the spectrum, and “inclined to cabin Chevron around the edges,” on the other end. But there is no realistic prospect of a majority to overrule Chevron or even to narrow it to death.
Hickman and Bednar’s calm, learned and commonsensical paper explains why Chevron isn’t going anywhere. Part of the problem is that “Chevron” denotes a particular case decided in 1984, but connotes a far broader and more enduring phenomenon of deference, one that results from long-run structural and institutional causes. Deference to executive officials on questions of law predates Chevron by decades, at the least. With convincing examples, including an illuminating analysis of AT&T Co. v. United States (U.S. 1936), Hickman and Bednar show that there has long been a category of cases, involving difficult questions of public policy, in which judges know that they don’t know enough to spell out in detail what exactly ambiguous statutes should mean. In such cases, “deference” is just shorthand for the entirely pragmatic thought that if the front-line decision maker hasn’t obviously gone off the rails, the judges aren’t likely to make things better by substituting in their own judgments, which may perhaps be ill-informed, eccentric, harmful or politically unacceptable. Continue reading "Chevron as a Legal Framework"
Much ink has been spilled over whether platform workers — be they Uber drivers, Task Rabbit taskers, or others — are employees or independent contractors, and litigation over alleged misclassification of platform workers is ongoing. Likewise, there is robust debate over whether the rise of such platforms benefits workers by expanding their earning capacity and flexibility, or simply serves to increase income insecurity and income inequality. Beyond employment, similar debates rage over other platforms, such as whether Airbnb and other home-sharing platforms enhance consumer choices and provide individuals with positive ways to monetize underutilized space, or exacerbate shortages of affordable housing and undermine stable residential neighborhoods.
Orly Lobel’s article provides a broad framework in which to analyze such issues. The article is much broader than the work law implications of the platform economy, but it is extremely useful for scholars and policymakers facing work law issues. Continue reading "A Framework for Thinking About Regulating Platforms"
Evan J. Criddle, Liberty in Loyalty: A Republican Theory of Fiduciary Law
, 95 Tex. L. Rev
. 993 (2017), available at SSRN
Fiduciary law crosses many domains, but it is of particular import to the field of trusts and estates, where it lays down rules of conduct for key actors within that legal system. In Liberty in Loyalty, Professor Criddle presents an appealing and detailed case for why republicanism is the theoretical basis for fiduciary law. This feat is impressive because he is very much swimming against the tide; scholars and judges alike have often seen classical liberal theory as fiduciary law’s guiding light. But the Article’s contribution is not merely theoretical. Important questions of doctrine turn on fiduciary law’s theoretical foundation, as Criddle skillfully shows. This article’s discussion is essential reading for scholars in numerous areas, most notably agency law, corporate law, and trust law, but it is also a valuable read for anyone interested in how the law manages relationships between those with unequal power.
Criddle starts by giving primers on the two main contestants for the soul of fiduciary law: republicanism and classical liberalism. Criddle acknowledges that republican theory is a big tent, but boils it down to two propositions. First, the state derives its authority from the people for the express purpose of promoting individual liberty. Second, the state accomplishes this task by protecting individuals from domination. Domination, in turn, is understood as being in a state of subjection—to either arbitrary power or alien control. Even if this power is not exercised, an individual will still be dominated if there is a chance that it will be exercised. While this understanding was developed with respect to public law, Criddle believes it applies equally well to private law, where the risk of domination is still present. Thus, the governing value of republicanism is liberty, which manifests as a non-domination principle. Classical liberals also value liberty but conceptualize it a bit differently. For them, actual interference or the likelihood of actual interference in an individual’s choices is the evil to be prevented. Thus, classical liberalism prizes a non-interference principle instead. Continue reading "The Non-Domination Principle in Fiduciary Law"
Victor P. Goldberg, The
(2017), available at SSRN
In The MacPherson-Henningsen Puzzle, Victor Goldberg juxtaposes two landmark product liability cases to identify an interesting historical question about product manufacturers’ ability to contract around their tort obligations. With some nice detective work, he then offers an answer to the question, in the process reminding us of the complex interrelation among legal rules, the legal profession, and social norms.
Claus Henningsen purchased from Bloomfield Motors a car manufactured by Chrysler. While Claus’s wife Helen was driving, the car “took an unscheduled turn into a wall” (to borrow Marc Franklin’s memorable description). In Henningsen v. Bloomfield Motors (1960), the New Jersey Supreme Court upheld a verdict for the plaintiffs. The court deemed automobile manufacturers implicitly to warrant their products’ fitness not only to purchasers but also to certain nonpurchasers. Notably, because warranty liability was understood to sound in contract rather than tort, the decision imposed a form of strict liability on sellers of mass-produced automobiles. Continue reading "The Curious Case of the Disclaimer That Didn’t Bark"
Heather Field, A Taxonomy of Tax Loopholes,
55 Houston L. Rev.
(forthcoming 2018), available at SSRN
One of the many obstacles in the way of productive governance these days is people talking past each other. In the tax context, for instance, everyone seems to agree that we need to “simplify” the tax system and eliminate “tax loopholes.” But, people with very different agendas mean very different things when they use these loaded terms. And using the loaded terms, without elaboration, interferes with our ability to engage in serious policy conversations.
In A Taxonomy for Tax Loopholes, Heather Field identifies this phenomenon and attempts to push us beyond the “tax loophole” rhetoric. She explores the different ways that the term “tax loophole” is used, provides a framework that is designed to promote more transparent substantive debate, and uses her framework to bring greater clarity to contemporary debates about specific tax issues. While, as Field acknowledges, the term “tax loophole” is not going away any time soon, her approach nonetheless brings refreshing incisiveness to a discourse that is too often clouded by meaningless labels. Continue reading "Beyond the “Tax Loophole” Rhetoric"