Yearly Archives: 2018
Shaanan Cohney, David Hoffman, Jeremy Sklaroff, & David Wishnick, Coin-Operated Capitalism
, __ Columbia L. Rev.
__ (forthcoming), available at SSRN
Oldthinkers unbellyfeel blockchain. We are told that blockchains, cryptocurrencies, and smart contracts are about to revolutionize everything. They remove fallible humans from every step where a transaction could go wrong, replacing them with the crystalline perfection of software. Result: clarity, certainty, and complete freedom from censors and tyrants.
And yet we still don’t get it. Some oldthinkers think that not all regulation is tyranny, while others point to the environmentally disastrous costs of blockchain strip mining. And then there are those of us who think that the entire premise of blockchain boosterism is mistaken, because the new “smart” contracts are not so different from the old “dumb” contracts. Coin-Operated Capitalism, by a team of four authors from the University of Pennsylvania, is the best recent entry in this vein. It is a playful, precise, and damning look at how smart contracts actually function in the real world. Continue reading "Extraordinary Popular Delusions and the Madness of ICO Crowdfunding"
Michael Vitiello, Animating Civil Procedure (2017).
For civil procedure teachers seeking to accompany their casebook with an insightful account of procedural justice, Michael Vitiello’s Animating Civil Procedure provides an excellent complement to case-centric courses. Among its many virtues, Vitiello’s book weaves a compelling procedural-justice argument around the leading procedure cases all first-year students encounter in their introduction to the American legal system.
Vitiello’s main thesis details how the Supreme Court’s procedural jurisprudence – especially in the last decade—effectively denies plaintiffs’ access to justice and represents a closing of the courthouse doors. While these themes are manifestly familiar to the professoriate and comprise the dominant narrative among commentators, the impact of procedural law may not be so apparent to new law students. By focusing on the compelling importance of procedure in shaping substantive justice, Vitiello’s book provides a useful resource to bridge a novice’s gap in knowledge and understanding. Continue reading "A Decade of Procedural Despair: Denying Access to Justice and Closing the Courthouse Doors"
In We The Corporations, constitutional law scholar Adam Winkler reaches out to the public with a sweeping account of the role and place of the corporation in the creation and ongoing evolution of the American Constitution. This is a work designed to appeal to the educated citizen at large, and Winkler uses several powerful hooks to garner the audience he seeks.
The title, of course, is an obvious hook. The first three words of the Constitution, “We the people…” is evoked, with “corporations” replacing people. This book must be about how corporations have usurped the rights of people, resulting in a union that is perfect not for the people, but for the corporations.
The book’s Introduction, visible to a potential reader browsing the electronic version of the book on Amazon, is subtitled “Are Corporations People?” Winkler immediately titillates with an account of how in 1882, Roscoe Conkling misled the Supreme Court while arguing for extending constitutional equal protection rights to his client, the Southern Pacific Railroad. Conkling had been on the Congressional committee that drafted the amendment, and he claimed not only to remember, but to have recorded in his journal, which he waived as he argued, that the Fourteenth Amendment had used the word “person” instead of “citizen” so that corporations would be included in its protections. His journal actually did not support that claim and later scholars have completely debunked it. But the seed had been planted, and the Supreme Court soon embraced Conkling’s argument that corporations have rights under the Fourteenth Amendment. “Just as I thought,” says the potential reader, “it was all a scam.” Continue reading "Corporate Origins and Corporate Rights: American Law and the Corporation"
In recent years, there has been a resurgence of interest in the Gilded Age and the Lochner era. When one reads that the three richest Americans now control more wealth than the entire bottom half of the United States population, one cannot help but think of the vast wealth disparities between the Gilded Age’s railroad barons and oil tycoons and the masses of Americans who worked for them. For many, the Court’s recent decisions on topics such as unions and campaign finance likewise call to mind the Lochner era, in which legislative efforts to mitigate various kinds of inequality were sacrificed on the altar of “economic liberty.” But increasing income inequality and the neo-Lochner undertones of some of the Court’s recent decisions are not the only features of contemporary law and politics that call to mind the decades before and after the First World War. The resurgence of anti-immigrant sentiment and the current Administration’s pronounced efforts, both rhetorical and legal, to make clear who is welcome in this country and who is not echo in profound ways the xenophobic attitudes and acts of exclusion directed at “foreigners” in the early decades of the twentieth century. That is why Gabriel (Jack) Chin and John Ormonde’s recent article, The War Against Chinese Restaurants, so captured my attention when it was published earlier this year.
In this article, Chin and Ormonde recover the largely forgotten history of the national campaign, in the last decade of the nineteenth century and the first decades of the twentieth, to eradicate Chinese restaurants from the United States. Although the number of Chinese immigrants in the U.S. decreased over those years as a result of tight restrictions on Asian immigration, the number of Chinese restaurants skyrocketed. In 1870, Chinese restaurants employed 164 Chinese workers; by 1920, such restaurants employed over 11,400 Chinese workers. By that point, it had become clear that the “Chop Suey craze” was not just a fad. Americans seemed to have a limitless appetite for Chinese food. But the rapid proliferation of Chinese restaurants exacerbated powerful nativist anxieties about economic opportunity, immigration, and the racial make-up of the American polity. Unions in particular decried the diversion of jobs and money away from “the American wage-earner” and to “workers and employers from the Orient.” Union leaders feared that the low wages and low prices associated with Chinese restaurants would depress restaurant workers’ pay and deprive so-called American restaurants of much-needed revenue. Deeply intertwined with these apparently economic concerns was the widely-shared fear that Chinese immigrants constituted a threat to “traditional” American culture and that Chinese men, often portrayed as shifty opium-pushers, posed a threat to the safety of white women. Thus began a decades-long campaign, orchestrated by unions, politicians, and law enforcement officers, to eliminate Chinese restaurants from cities and towns across the country. Continue reading "Acts of Exclusion"
Every fall, the second day of my Contracts course is spent discussing the Baby M case concerning the enforceability of a surrogacy contract. The students engage in a moot court exercise for which they assume the roles of legal counsel for the Sterns, the biological father and adoptive mother, and Mrs. Whitehead, the surrogate. Students also serve as state supreme court justices with yours truly presiding as Chief Justice. Over the years, I have found this exercise to be a fun, interactive, and collaborative way to ease nervous angst-filled law students into the study and practice of law. It also affords the class the opportunity to consider and discuss important fundamental principles of contract law including freedom of contract and public policy concerns. During the three decades that have passed since the Baby M case, there has been enormous growth in the number of individuals using contractual agreements to help them meet their reproductive goals. This growth has necessitated a closer examination of the enforceability of such agreements, which Professor Deborah Zalesne undertakes in her thought-provoking article, The Intersection of Contract Law, Reproductive Technology, and the Market: Families in the Age of ART.
Professor Zalesne’s article begins with a very thorough discussion of the controversial ethical issues surrounding alternative reproductive technologies (ART). Although she acknowledges critics’ concerns about commodification, exploitation, consent, and access as they relate to reproductive practices such as surrogacy and gamete donation, Professor Zalesne argues that “these concerns are overstated, often rooted in traditional and untested beliefs about the sacredness of motherhood and family, and should give way to the paramount concern of reproductive autonomy.” (P. 427.) Continue reading "The Role of Contracts in ART"
Jennifer Nou & Edward H. Stiglitz, Regulatory Bundling
, 128 Yale L.J.
__ (forthcoming 2019), available at SSRN
Schemes for regulatory reform have taken many different tacks: improving cost-benefit analysis, preventing interest-group capture of the regulatory process, enhancing public participation in rulemaking, and myriad other ideas. To some, the most alluring idea for reform is apparently that, whatever else happens, there should at a minimum be less regulation—where “less” is measured simply by counting up the number of regulations and trying to reduce that total.
That notion has now become a “cornerstone” of federal deregulatory policy. Under President Trump’s Executive Order 13771, agencies “shall identify at least two existing regulations to be repealed” for each new regulation that they propose or promulgate. The “two-for-one” Order is the business end of a broader critique that there is “too much law”; though that idea has modern currency, it goes back at least as far as Sir Thomas More, who half a millennium ago imagined Utopia as an island of “but few laws”—and no meddlesome lawyers. Will this Order bring us closer to that Utopia?
In a forthcoming article, Jennifer Nou and Edward Stiglitz shed light on that question by assessing the phenomenon that they dub “regulatory bundling.” Under the new Order, agencies face an obvious incentive—to “pack more regulatory provisions into one rule” (P. 5) because splitting the provisions into separate rules would require the agency to find more offsetting rules to repeal. But the impetus to bundle together regulatory requirements might change what regulators choose to put into the bundle. When legislators enact omnibus laws, the authors note, they often use those more capacious vehicles for logrolling, for pushing partisan agendas through must-pass measures, and for smuggling unpopular initiatives through the vetogates of the legislative process; splitting up laws, not bundling them, is thus the option advocated by many scholars and preferred by many states. (Id.) Continue reading "A Mixed Bag"
Elizabeth Chika Tippett, Harassment Trainings: A Content Analysis
, __ Berkeley J. Emp. & Lab. L.
__ (forthcoming 2018), available at SSRN
Every couple of years, some automated program at the University nags me about renewing my sexual harassment training. Since the computer provides no way for me to claim an exemption for my work on the topic over the years, I usually procrastinate a few weeks and then give in, log on, and spend the 20 or so minutes needed to run through the process and get my certificate of compliance. (Why I need a certificate when the program presumably keeps track of my efforts is another question). Each time, I finish thinking how incredibly stupid the training is—and not just because I—like pretty much everyone reading this on Jotwell—know more than the average person about the topic.
But “stupid” is probably counterbalanced by cheap and efficient—if “cheap” means compared to live efforts and “efficient” means a low cost way of checking the “reasonable care to prevent” box for avoiding liability for sexual harassment. And I don’t deny it works since I can’t recall a case where a court found colorable employer training efforts to be per se insufficient to “prevent” misconduct.
Nevertheless, I ask myself each time—can this possibly be what the Supreme Court had in mind? Continue reading "Train Smarter"
Can an estate or trust with charitable and non-charitable beneficiaries (1) receive income in respect of a decedent (IRD) proceeds, (2) distribute (or set aside) for a charitable purpose the IRD proceeds, and (3) perhaps not be allowed an Internal Revenue (IRC) code section 642(c) income tax charitable deduction? You may know that the answer is “yes.” In their article, Professor F. Ladson Boyle and Jonathan G. Blattmachr not only explain when and why such income tax charitable deduction is available, but also suggest planning techniques to ensure that the deduction is, indeed, available.
To start, here are the authors’ suggested solutions for ensuring that the section 642(c) income tax charitable deduction is available to the estate or trust. First, if possible, designate the charity as the direct beneficiary of the individual retirement account (IRA) or other IRD; do not have the IRD proceeds pass through the decedent’s probate estate or revocable trust. (P. 413.) Second, if the charity cannot be the direct beneficiary of the IRD and if the governing testamentary instrument can be drafted or amended, then ensure that the IRD is “specifically devised to charity as a pre-residuary devise.” (P. 413.) Third, if an estate is in administration, then the personal representative “might distribute the IRD in kind to the charity as a part of the residuary devise due to the charity” (but not to satisfy a specific pecuniary amount). (P. 414.) Continue reading "When Can an Estate or Trust Distribute IRD to a Charity and Receive an Income Tax Charitable Deduction?—The Answer is not Simple"
Omri Ben-Shahar, “Data Pollution,”
University of Chicago Public Law & Legal Theory Paper Series, No. 679 (forthcoming 2018), available at SSRN.
What was the nature of the harm when data on 143 million Equifax consumers was stolen? More generally, what is the problem with personal data use and misuse by commercial players? The most immediate answer: privacy, individuals’ privacy interests are infringed. But then the question becomes what is the problem with infringing one’s privacy? Here, the answer usually is that infringing one’s privacy infringes upon her autonomy, dignity, emotional wellbeing, and such. To these non-monetary harms, one can add various monetary harms such as monetary losses associated with identity theft and other economic losses. These personal harms have led privacy scholars to focus on the private and personal aspects of data breaches. This, in turn, has naturally also led them to focus on private law solutions, such as tort and contract law-type protections for individual’s privacy interests.
However, despite years of attempting to combat irresponsible data sharing and handling, the problem persists. People treat their private personal information as if they do not much care about it. They may trade it quid pro quo for access to various services from navigation and communication services on their cell phones to participation in social networks, or even just to play Fortnite. And yet, when asked about how important privacy is to them, people overwhelmingly claim it matters a lot. Similarly, when people sue for damages for data breaches, they claim they suffered significant losses. The gap between what people claim (privacy matters) and what they do (sell it cheaply) is the so called “privacy paradox.” How can this paradox be resolved? Continue reading "Personal Data as an Environmental Hazard"
The income tax is a formidable institution in American political life. Understanding the many facets of its current form is a challenge, given the myriad forces that have interacted in its evolution. Larry Zelenak, in his book Figuring Out the Tax, published in January 2018 as part of the Cambridge Tax Law Series, offers the reader substantial insights into these forces through a close examination of the early history of the income tax in the United States.
Zelenak does not attempt to outline the entire history of the income tax, or even its complete history during the two decades following 1913, with which he deals most completely. Zelenak instead has chosen to provide the history of a number of discrete aspects of the income tax: the use of withholding for income streams other than wages, the step-up of basis at death, the use of value rather than basis to define the charitable deduction, the allowance of investment losses, the special treatment afforded families, the omission of imputed rental values enjoyed by homeowners and the surprisingly favorable treatment of earned income. These topics are not intended to be exhaustive or even representative; instead they were chosen because they had not, in Zelenak’s view, been the subject of adequate earlier treatments. Continue reading "Learning from Our Mistakes"