Monthly Archives: December 2018

Jotwell Winter Break 2018

Jotwell will be taking a short Winter break. Jotting should resume on Monday, Jan 7, 2019.

Happy Holidays! Thank you for reading, and for your support.

PS. Jotwell carries no advertising, so we would very much appreciate if you could make a small holiday donation. The University of Miami School of Law is Jotwell’s host and main supporter, but having tangible signs that our readers value us is important. Even a few dollars can matter a great deal. Thanks!  Continue reading "Jotwell Winter Break 2018"

Corporate Responsibility: The Duty to Rescue and Access to Medicine

Rebecca E. Wolitz, A Corporate Duty to Rescue: Biopharmaceutical Companies and Access to Medications, 94 Indiana L.J. __ (forthcoming 2019), available at SSRN.

For far too many Americans, prices of pharmaceutical medications pose a major threat to access and, ultimately, wellness. Indeed, drug costs in the United States pose a problem fraught with challenges, one that has led scholars to focus on achieving a lasting regulatory solution. None has been forthcoming. Given the intractability of the problem, creative solutions that go beyond attempting to devise the perfect recipe of governmental intervention are welcome additions to the legal scholarship. In this vein, a particularly creative new article seeks to investigate whether biopharmaceutical companies owe an ethical duty to provide their medications to those who cannot afford them.

In A Corporate Duty to Rescue: Biopharmaceutical Companies and Access to Medications, Rebecca Wolitz grapples with this question. In her piece, Professor Wolitz presents a complete and critical analysis of the structure, enforceability, and workability of a “corporate duty to rescue” (CDTR). Defining a CDTR as the “application of a moral duty to rescue to for-profit companies” regarding access to their products, Wolitz’s analysis is significant, kicking off a conversation that should precede any “self-regulatory changes [corporations] justifiably could be urged to implement.” Indeed, as she notes, “a CDTR is particularly interesting as it offers a moral foundation for corporate self-regulation.” Continue reading "Corporate Responsibility: The Duty to Rescue and Access to Medicine"

Practice Makes Perfect

Approximately four years ago, the Federal Advisory Committee on Civil Rules established a subcommittee to reform Federal Rule of Civil Procedure 23, the class action rule. The subcommittee engaged in a meticulous review of various class action practices, focusing on such controversial issues as cy pres awards, bad faith objectors, and class action settlements. The subcommittee’s work resulted in the Advisory Committee adopting a package of amendments to Rule 23, which went into effect on December 1, 2018. A good overview of the amendments can be found here.

Anticipating passage of these amendments, the Bolch Judicial Institute at Duke Law School assembled an all-star team of class action practitioners and experts to draft a compilation of “guidelines and best practices.” Because the amendments “codify emerging or best practices of courts,” the goal of the publication is to “add detail to the general guidance provided in the amended rule.” The publication has all the attributes of a great resource—it is concise while remaining crystal clear. Continue reading "Practice Makes Perfect"

Of Constitutions and Concertos

Kevin Toh, Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation, in Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Lisa Crawford, Patrick Emerton, & Dale Smith, eds., 2018), available at SSRN.

Kevin Toh’s Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation offers a fresh and lucid discussion of the relationship between constitutional interpretation and musical performance. Toh is by no means the first scholar to have observed the connection between the two pursuits: Jerome Frank, Richard Posner, Sanford Levinson and Jack Balkin, and others have noted and analyzed the shared nature of the challenges that judges and musicians confront. But Toh’s article, written in honor of the Australian philosopher Jeff Goldsworthy, offers a welcome contribution to this intriguing line of inquiry, mining the music-law analogy for rich and revealing insights about the values of authenticity and fidelity as they apply to both of these interpretive endeavors.

Toh begins his discussion by highlighting an oft-analyzed issue within the philosophy of music—namely, that of the “ontological status” of musical works (P. 3.) When we talk about songs, sonatas, symphonies, and the like, what exactly are the objects to which we refer? Toh dismisses the possibility that a musical work is equivalent to the physical score that demarcates it. (Scores, after all, can be annotated, shredded, or left at home, and that is hardly true as to a “cantata” or “concerto.”) He also rejects the possibility that a musical work equates to a “score-type”—an abstract representation of the score’s particular instructions (P. 3.) Score-types often fail to specify important components of a musical performance, including components that are “important enough to be considered nonoptional if the performances are to count as performances of the relevant works” (P. 4.) And he further rejects the possibility of treating the musical work as equivalent to the “meaning” of the score, where the score’s meaning is understood to be the performance that the score as a whole prescribes (P. 5.) This conception too, Toh argues, fails to acknowledge the fundamental incompleteness of the score’s demands. Plodding through the notes on a page is not the same thing as performing the piece. A “true” and “authentic” version of the piece requires phrasings, voicings, dynamics, and other expressive elements that the score does not always convey. Continue reading "Of Constitutions and Concertos"

Should Courts Punish Government Officials for Contempt?

Nicholas R. Parrillo, The Endgame of Administrative Law:  Governmental Disobedience and the Judicial Contempt Power, 131 Harv. L. Rev. 1055 (2018).

What happens when a federal court issues a definitive order to a federal agency and the agency takes a how-many-divisions-does-the-Pope-have position in response? The answer that comes to mind is that the court can find the agency or its officials in civil or criminal contempt. But when is that finding available, how often is it used, what sanctions are attached to it, and what is their effect?

Nicholas Parrillo answers those questions in this comprehensive and carefully reasoned article. He collects (using a methodology described in an on-line appendix) all the records of federal court opinions “in which contempt against a federal agency was considered at all seriously” and all the records of district court docket sheets “in which a contempt motion was made…against a federal agency.” (P. 696.) After analyzing the results, Professor Parrillo concludes that while district courts are willing to issue contempt findings against federal agencies and officials, appellate courts almost invariably reverse any sanctions attached to such findings. But he also finds that the appellate courts reverse on case-specific grounds that do not challenge the authority of courts to impose sanctions for contempt, and that findings of contempt, even without sanctions, can operate effectively through a shaming mechanism. This article provides unique and valuable documentation about contempt, the “endgame of administrative law” and an obviously important element of our legal system. In addition, it contains major implications about the nature of the appellate process and about the normative force of law itself. Continue reading "Should Courts Punish Government Officials for Contempt?"

On Contract Law’s Increasing Distortionary Effect on Substantive Trade Secret Law and How to Stop It

Deepa Varadarajan, The Trade Secret-Contract Interface, 103 Iowa L. Rev. 1543 (2018).

Trade secret law and contract law have a complicated relationship. Every subject of commerce is extensively privately regulated by contracts. Intellectual property is distinct from other things of value, because it provides exclusive rights to its owners, and burdens others with corresponding responsibilities to others. Yet unlike trade secret’s intellectual property cousins copyright and trademark, there is no state or federal public register of trade secret interests to give potential infringers notice of a trade secret. What’s more, trade secret rights are relational, that is, liability for disclosure of a trade secret based on the context and expectations of the owner and the discloser. Therefore in trade secret law, unlike other intellectual property, contracts frequently are key evidence of the substance of the trade secret and the standard of behavior required for former employees to avoid infringing trade secrets.

In The Trade Secret-Contract Interface Professor Deepa Varadarajan argues contract law should not be used to undermine the policy reason the law grants companies intellectual property in trade secrets—to promote the progress of science and the useful arts. And yet, as she chronicles in the article, contract law has increasingly been used to do just that in an economy where some of the most valuable assets are trade secrets, including algorithms and databases. She writes: “Contracts’ centrality to trade secret law provides putative owners ample opportunity to define—and overstate—the boundaries of their trade secret rights, particularly to employees. Trade secret’s intersection with contract law poses particular threats to employee mobility—as employee non-competes and non-disclosure provisions can deter employees from starting new jobs and competition enterprises.” (P. 1547.) Continue reading "On Contract Law’s Increasing Distortionary Effect on Substantive Trade Secret Law and How to Stop It"

Plus Ça Change: A Century-Old Removal For Cause

Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691 (2018).

Lots of ink has been spilled over when Congress can give federal officials for-cause protection. One would think that a necessary antecedent to that discussion would be a determination of exactly what for-cause protection entails. What isinefficiency, neglect of duty, or malfeasance in office”? Yet no one knows; the debate over the permissibility of that restriction proceeds in blissful uncertainty as to its scope.

The reason no one knows is that (almost) no President has ever tried to fire someone for specified shortcomings amounting to “cause.” Until reading Professor Bamzai’s article, I would not have included the parenthetical “almost.” In the best-known instances of a president removing an official with for-cause protections—Shurtleff, Myers, Humphrey’s Executor, Wiener—the president did not claim cause existed; he took the position that cause was not necessary. It is often asserted, with only the tiniest of hedges, that no president has ever fired anyone after a hearing and for cause. But it turns out that at the very end of his term President Taft did just that. This article is the engaging account of that overlooked event. Continue reading "Plus Ça Change: A Century-Old Removal For Cause"

Fighting Jim Crow, Chapter 517

Thomas Ward Frampton, The Jim Crow Jury, 71 Vand. L. Rev. 1593 (2018), available at SSRN.

This article challenges the practice of non-unanimous criminal jury verdicts in Louisiana.  In a certain sense, the article was irrelevant, moot, by the time it saw print. This is not because, say, it was about an election that was already over, or made an argument that the courts had definitively rejected. Instead, the claim in this paper was so factually, legally and historically compelling that even in draft form it spurred concrete action; thanks in part to this paper, the policy it analyzed was both declared unconstitutional by a court, and repealed by the voters.

The article carefully recounts the history of the substantial elimination of African Americans from juries in Louisiana after Reconstruction. African Americans were, of course, a major part of the population of most of the former Confederate states, and amounted to a majority in Louisiana, Mississippi, and South Carolina. As Frederick Douglass wrote, “the liberties of the American people” depended on “the Jury-box” as well as “the Ballot-box,” if allowed to serve on juries, there was the danger that African American defendants would get a fair hearing, and that Whites (and White officials) accused of crimes against African Americans could be convicted. These were risks that White supremacists could not accept. Continue reading "Fighting Jim Crow, Chapter 517"

A Comprehensive Analysis of Proposed Union Strategies to Deal With Janus

Catherine Fisk and Martin Malin, After Janus, 107 Cal. L. Rev. __ (forthcoming 2019), available at SSRN.

Have you ever had an idea for an article, but then somebody else beat you to writing it and did a better job than you would have with the topic? After Janus is my first experience with that, and not surprisingly, its co-authors are scholars I respect immensely.

Janus v. AFSCME held that all union security clauses (contract provisions requiring members of union bargaining units to pay their share of the costs of union representation) in the public sector violate the First Amendment. This constitutionally imposed “right to work” rule will cause unions significant financial damage, mainly because under “duty of fair representation” (DFR) rules, unions generally must represent members of union bargaining units without regard to whether or not they pay any dues. Scholars have been working on ways unions could get around some or all of the negative effects of Janus. Current ideas include getting rid of the “majority exclusive representative” model, adjusting DFR rules, or requiring employers to pay for unions’ collective bargaining costs. AfterJanus responds to these proposals with what I believe is appropriate skepticism. Further, it creatively reframes the union’s financial dilemma as a collective action problem, as opposed to the more common framing of a free-rider problem. It also makes some potentially very useful alternative suggestions. Because it addresses so many topics, the summary below barely hits the highlights. Anyone interested in labor law and policy should read this article in full. Janus" class="more-link">Continue reading "A Comprehensive Analysis of Proposed Union Strategies to Deal With Janus"

You Can’t Spell “America” Without C A R

Nora Freeman Engstrom, When Cars Crash: The Automobile’s Tort Legacy, 53 Wake Forest L. Rev. 293 (2018).

For the past century, the car accident has served as the paradigmatic (über-?) tort. What does this tell us about tort law’s past, present, and future? Nora Freeman Engstrom’s elegant and informative When Cars Crash offers some highly illuminating reflections on this question.

Engstrom starts with the facts. In the U.S., millions of car crashes each year generate upward of 30,000 fatalities and countless injuries. Only heart disease and cancer account for more life-years lost, and the toll is particularly severe for teens and young adults. On the litigation side, many more lawsuits are filed, and more dollars paid out, for car accidents than for any other type of accident. Car wrecks also appear to generate a higher percentage of frivolous or at least overstated claims—think here of the stereotypical “whiplash” plaintiff. Thanks to the presence of settlement formulae established by repeat players, including plaintiffs’ lawyers and insurance adjusters, these suits tend to be resolved quickly and cheaply. When trials happen, they are brief and straightforward. Car accident plaintiffs who go to trial win more than half the time but generally recover modest amounts—$16,000 on average. Continue reading "You Can’t Spell “America” Without C A R"

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