Yearly Archives: 2017
Oct 26, 2017 Robert HillmanContracts
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?"
Oct 25, 2017 Sarah Barringer GordonConstitutional Law
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"
Oct 24, 2017 Adrian VermeuleAdministrative Law
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"
Oct 23, 2017 Martin H. MalinWork Law
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"
Oct 20, 2017 Alexander Boni-SaenzTrusts & Estates
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"
Oct 19, 2017 John C.P. GoldbergTorts
Victor P. Goldberg,
The MacPherson-Henningsen
Puzzle (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"
Oct 18, 2017 Leigh OsofskyTax Law
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"
Oct 17, 2017 Lee Anne FennellProperty
A queue, whether it takes the form of a line or a list, is one of the simplest and most familiar algorithms for allocating scarce resources. It is also a tool of social control, a metaphor, and a powerful framing device, as Katharine Young incisively demonstrates in Rights and Queues: On Distributive Contests in the Modern State.
Young focuses on the way that the queue interacts with rights or—more broadly—entitlements. One of her central examples involves the allocation of public housing in South Africa. Though highly contextualized, Young’s analysis resonates with concerns about housing and social welfare policy elsewhere, including in the United States. Young’s emphasis on the political and rhetorical work performed by the queue is an eye-opening complement to other recent treatments of queues in property law. Continue reading "Questioning the Queue"
Oct 16, 2017 Angela BanksLexImmigration
Kerry Abrams,
Family Reunification and the Security State (forthcoming, 2017), available at
SSRN.Many Americans believe that one of the functions of United States immigration law is to facilitate family reunification. For example, the idea that if a non-citizen marries a United States citizen that person can reside in the United States with their U.S. citizen spouse. Yet another function of U.S. immigration law is border control to protect national security. Consequently, if the United States government deems a non-citizen a security threat, regardless of their relationship to a U.S. citizen, that non-citizen could be denied entry to the United States. The relationship between these two immigration law functions—family reunification and national security—has varied throughout American history.
Kerry Abrams’ forthcoming article, Family Reunification and the Security State, provides a framework for understanding the “shifting and complex relationship” between these two immigration law functions. (P. 1.) Professor Abrams identifies three periods of U.S. history in which the relationship between these two immigration law functions has varied. During the age of the unitary family there was little tension between the two immigration law functions, and family unity was paramount. In the subsequent age of security, the State’s concern about national security threats increased and family reunification was subordinated to border control. We are currently in the age of balancing in which family rights are viewed as individual constitutional rights that must be balanced with the State’s interest in border control. The implications of these shifts are highly visible today as citizens challenge President Trump’s executive order limiting migration from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen based on their interest in family reunification. Continue reading "Protecting the Right to Family Life in Immigration Law"
Oct 13, 2017 Jessica SilbeyIntellectual Property Law
Abhishek Nagaraj,
Does Copyright Affect Reuse? Evidence from Google Books and Wikipedia,
Mgmt. Sci. (forthcoming 2017), available
at abhishekn.com.
How should copyright law change to take account of the internet? Should copyright expand to plug the internet’s leakiness and protect content that the internet would otherwise make more freely available? Or, should copyright relax its strict liability regime given diverse and productive reuses in the internet age and the benefits networked diffusion provides users and second-generation creators? Answering these questions depends on what we think copyright is for and how it is used and confronted by creators and audiences. In a new article studying these questions in the very focused setting of Wikipedia articles about baseball and baseball players (there are more than you might imagine!), Professor Abhishek Nagaraj demonstrates that where production of new knowledge depends on pre-existing information, strong copyright law can reduce both the quality and quantity of new content.
Professor Nagaraj studies the intersection of digital access and information diffusion. In the paper reviewed here, Nagaraj takes advantage of the lack of automatic renewal of copyrighted works published before 1964, rendering many to the public domain, to estimate the effect of access to public domain material on the quality of Wikipedia pages. His findings both confirm other studies in this area and raise new lines of inquiry. Continue reading "Three Strikes for Copyright"
