Monthly Archives: January 2019

The Marriage Crisis and its Many Backlashes in Twentieth-Century America

The rhetoric of a “marriage crisis” is a familiar one. William Kuby’s excellent new book gives us an incisive history of the way that a sense of crisis was invoked in debates about a variety of forms of marital misconduct and the backlash they inspired in the progressive era. Kuby expertly marches us through the way that late nineteenth and early twentieth-century American judges, state legislators, polemicists, and reformers of all stripes relied on ideas of common sense public policy and moral decency to police marriage in each of the five instances of marital misconduct he examines.

The first form of marital misconduct Kuby describes is the use of marital advertisements and state and church marriage bureaus that sought to match bachelors with single women. The latter were used in regions of the West to encourage the formation of stable family units (e.g. in Oklahoma to find wives for lonely farmers). The former, viewed as mercenary and inappropriately commercialized, were generally frowned upon by journalists and academics, such as sociologist and criminologist Arthur MacDonald who labelled the women who responded to them “abnormal.” Even though these advertisements often stated “objective marriage” and “no triflers” (see image on P. 26), they were strongly associated with indecent (and risky) sexual and moral behavior. Innovations in transportation and the wider circulation of newspapers created “new possibilities in courtship,” Kurby writes, “finding partners beyond one’s restricted geographical location – or outside one’s narrow class or racial designations.” (P. 67.) These “expanding geographic and demographic boundaries of mate selection” display what Kuby calls “a crucial feature of modern romance.” (P. 67.) Continue reading "The Marriage Crisis and its Many Backlashes in Twentieth-Century America"

Enhancing the Role of States in Making Constitutional Law

Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018).

Jeffrey Sutton has much to teach us about the role of courts, state and federal, in making constitutional law. Sutton, well-known for his work as a judge on the United States Court of Appeals for the Sixth Circuit, has drawn on years of experience and research in this book-length rumination on the way state courts (and constitutions) can contribute to constitutionalism more broadly. Sutton served for some years as the solicitor general of Ohio, and knows the joys and heart-breaks of state constitutionalism first hand. Indeed, among the many happy turns of phrase in the book, one finds Sutton (many years after the fact) wistfully pursuing motions to reconsider the adverse decisions that most set his teeth on edge.

Sutton approaches his task with a deep appreciation of modern constitutionalism and an eye and ear for storytelling keen enough to engage readers both learned and lay. In brief, Sutton, argues, we have mistakenly come to view federal or national constitutionalism as the only game in town and have slighted state constitutionalism as a source of rights. Sutton describes a world hungry for rights articulation and suggests that state courts might play a more active role in the process. Sutton encourages lawyers to mount more state constitutional challenges, thereby giving their clients an extra shot at success. He also encourages state courts to take their own constitutions more seriously, noting that these documents often contain provisions missing from their national counterpart. Continue reading "Enhancing the Role of States in Making Constitutional Law"

Abandoned at the Nexus of Contracts

Usha R. Rodrigues, Law and the Blockchain, 104 Iowa L. Rev. 679 (2019).

Usha Rodrigues’s article on the firm as a nexus of “smart” contracts made me think of Mary Shelley’s Frankenstein. Maybe it is her use of “contracts made flesh,” the images of digital organisms mimicking their “corporeal” prototypes (creepy, if confusing), or the all-encompassing, oozing smartness of code. Victor Frankenstein was smart. He endowed his creature with formidable capacity to learn: within days, it had processed Goethe, Plutarch, and Milton. Then Victor freaked out and lost control.

Shelley’s story reads by turns as Don’t-Mess-with-Creation and Don’t-Abandon-Your-Children. I saw abandonment everywhere in Law and the Blockchain. Continue reading "Abandoned at the Nexus of Contracts"

Uncovering the Hidden Administrative Judiciary

Kent H. Barnett, Some Kind of Hearing Officer, 94 Wash. L. Rev. __ (forthcoming 2019), available at SSRN.

When Congress enacted the Administrative Procedure Act (APA) in 1946, it expected that what we now call Administrative Law Judges (ALJs) would preside over most federal agency evidentiary hearings. Over time, however, the number of so-called “non-ALJ” adjudicators has ballooned. As a result, non-ALJ adjudicators vastly outnumber ALJs today by a ratio of about 5:1. Yet despite the prominent role currently played by non-ALJs, very little is known about them. In a forthcoming article titled Some Kind of Hearing Officer, Professor Kent Barnett seeks to change that.

Professor Barnett’s article does three important things. First, it begins by describing how existing due process jurisprudence has little to say about impartiality in the adjudicatory arena, leaving the task of designing optimal process largely in Congress’s hands. When Congress enacted the APA in 1946, it spelled out a fairly detailed scheme to promote impartiality in the context of formal adjudicatory hearings conducted by ALJs. For example, the APA makes clear that ALJs cannot engage in prosecutorial or investigative functions. In addition, the APA generally prohibits ALJs from engaging in ex parte communications. Yet when it comes to non-ALJs, Congress did not set forth similar constraints. The end result, as Professor Barnett points out, is that Congress effectively has delegated the task of determining optimal process in informal adjudications—and, more specifically, ensuring the impartiality of adjudicators—to individual agencies. And, as one might imagine, agencies have come up with all sorts of different ways of approaching the issue of impartiality in informal adjudications. Continue reading "Uncovering the Hidden Administrative Judiciary"

Who Names the Price?

Naomi R. Sunshine, Employees as Price-Takers, 22 Lewis & Clark L. Rev. 105 (2018).

In Employees as Price-Takers, Naomi Sunshine defines employees as workers who lack “significant input into the prices charged to customers and their own pay rates.” (P. 110.) Sunshine’s proposal comes amidst a blizzard of articles, court cases, tribunal opinions, legal briefs, and white papers all examining this critical issue. It stands out amidst the snow drifts because of its simplicity, and because it provides a creative and intuitive insight. Her price-setting definition of employment has the potential to reorient current debates around this new metric.

There are several competing definitions of “employee,” and Sunshine carefully surveys the landscape. She discusses the dominant “control” test with its different variations, as well as the “economic realities” test, the “entrepreneurial opportunities” test, and the relatively new “ABC” test used in California and elsewhere. She illustrates these tests with the example of an HVAC worker as the paradigmatic independent contractor and examines how the test would categorize such a worker. Sunshine’s quiet unpacking of the entrepreneurial opportunities test is particularly deft, as she works her way down to the test’s foundational focus on the opportunity for profit or loss. She shows how the test renders the most vulnerable workers even more vulnerable, as it leaves them bereft of employment protections even when the potential for profits is merely illusory. Continue reading "Who Names the Price?"

Singing the Blues in Contract Law

Antonia Eliason, Lillian McMurry and the Blues Contracts of Trumpet Records, 87 Miss. L.J. 279 (2018), available at SSRN.

Professor Eliason’s Lillian McMurry and the Blues Contracts of Trumpet Records combines some of my favorite things—contract law, legal history, and Mississippi blues. Through the article, Eliason weaves a narrative of a compelling female protagonist, Lillian McMurry, who founded, operated, and finally closed the Trumpet Records (“Trumpet”) label in 1950s Jackson, Mississippi. This article provides a fantastic historical snapshot of the music industry at the time of itinerant blues artists who created the musical backbone of rock ‘n roll.

My interest in music industry contracting was sparked by Judge Jerome Frank’s dissent in M. Whitmark & Sons v. Fred Fisher Music Co. The majority opinion is relatively straightforward in upholding an artist’s assignment of contingent copyright renewal rights that would mature twenty-two years in the future. In contrast, Judge Frank in dissent exhibited remarkable judicial hubris (as well as, perhaps, the dark side of Legal Realist judging) in attempting to refuse specific enforcement of the original contract on fairness grounds. Specifically, Judge Frank would have substituted his own biased view of the relationship between artists and publishers: Continue reading "Singing the Blues in Contract Law"

Is Less Really More? Abraham and Kendrick on Getting Rid of Affirmative Duties

Kenneth S. Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No. 2018-59, available at SSRN.

When it comes to inherited scholarly categories and taxonomies, a prominent strand of modern American tort scholarship pursues a particular kind of deflationary agenda. The First and Second Restatements divided the law of negligence into sub-rules distinguished by spurious differences (for example, the section on “type of negligent acts” distinguished between “Use of Incompetent or Defective Instrumentalities” and “Want of Preparation”). The Third Restatement combined many rules that could be brought under a more general description – the laundry list of types of negligent acts has been radically pruned, leaving just a handful, such as “negligent failure to warn”.

Because the mission of the Restatement is to organize concepts latent in the common law, it is understandable that subsequent generations of reporters will see common themes between categories that were overlooked by their predecessors (and it is also possible that the law itself might evolve over time towards fewer principles as courts eliminate ad hoc categories). But reducing the number of rules, or principles, in the common law is not an unalloyed good. Debates still rage over whether the Restatement has, for all intents and purposes, removed duty as an element of the prima facie case in negligence in most cases of personal injury or property damage, and if it has, whether that move was salutary. Last year I reviewed for Jotwell an article by Prof. Stephen Sugarman calling for the merger of battery – an intentional tort – into negligence.

And now comes a proposal from Professors Ken Abraham and Leslie Kendrick to merge Chapters 3 and 7 of the Third Restatement, so that, instead of two general categories of duty in connection to physical harm, there will be just one rule of negligence for risk creation and there would be no need for a rule concerning affirmative duties. I will review Abraham and Kendrick’s arguments for the merger, suggest a few criticisms of their arguments, and conclude by evaluating the costs and benefits of pursuing yet another round of doctrinal deflation. Continue reading "Is Less Really More? Abraham and Kendrick on Getting Rid of Affirmative Duties"

Fucking With the Magic

Kristen E. Eichensehr, Digital Switzerlands, 167 U. Pa. L. Rev. ___ (forthcoming 2019), available at SSRN.

Battles over the public policy obligations and implications of late 20th-century and early 21st-century technologies have long been fought via metaphor as well as via megabyte and microeconomics. Today, modern information technology platforms are characterized brightly as “generative” and darkly as “information feudalism.” Public policy might be informed by treating some network providers as “information fiduciaries.” Or, borrowing the phrase that prompts Kristen Eichensehr’s thought-provoking paper, tech companies might be characterized as metaphorical “digital Switzerlands.” They might be neutral institutions in their dealings with national governments.

In Professor Eichenbehr’s telling, the idea of a corporate digital Switzerland resisting government aggression—refusing to cooperate with government requests for private user information, for example—comes from a recent suggestion to that effect by Brad Smith, president of Microsoft. As she notes briefly, it’s an old idea, not a new one, even if it has migrated from corporation-vs-corporation conflict to state-vs-corporation power dynamics. Ken Auletta’s history of Google reported that back in 2005, Google CEO Eric Schmidt characterized Google’s search engine and advertising platform as a neutral “digital Switzerland” in its treatment of content companies and advertisers. Schmidt was defending the idea that Google had no agenda vis-à-vis incumbent entertainment industry players. Google’s technology produced accurate data about consumer viewing practices. If that data led advertisers to pay less for their ad buys, that wasn’t Google’s intent—or its responsibility. Schmidt’s listener, the then-president of Viacom, erupted in protest: “You’re fucking with the magic!”

Indeed. The reader should take many lessons from Eichensehr’s article. Foremost among them is this: Wandering into the digital Switzerlands of contemporary technology, whether because Microsoft (in its obvious self-interest) says that’s how we should do things or because that’s an objectively useful place to begin, is fucking with the magic—that is, the mythos that guides how scholars and policymakers think about technology purveyors and their civic roles and responsibilities. Continue reading "Fucking With the Magic"

Sharing and the City: Re-imagining Regeneration for America’s Urban Core

As debates about “exclusion” and “sharing” continue to animate property and political discourses, scholarship tackling questions about how and for whom property and property law works is timely.

Scholarship examining the power of property law to promote inclusion1 through informal, contractual and proprietary forms (e.g., easements, leases, trusts, concurrent estates, and co-ownership arrangements), or property law’s “sharing” impulse,2 have typically focused on the social and economic benefits of hanging a different sign: that says not “keep out” but “come on in.” The legal power to include has also been lauded as a powerful enabler of innovation for the “sharing economy”—from for-profit platforms like Airbnb and Uber to not-for-profit initiatives like foodbanks and makerspaces.

Scholarship exploring the potential of the sharing economy as a vehicle for economic growth, innovation and micro-entrepreneurialism has examined how facilitating access to property, resources, time and skills can enable those who are excluded from these opportunities under conventional ownership models.

While the emergence of the ‘sharing economy’ has prompted intense interest amongst property scholars, it has also provoked a raft of public and policy concerns linked to precarity and exploitation of labor in the “gig economy.” Professor Rashmi Dyal-Chand’s new book, Collaborative Capitalism in American Cities: Reforming Urban Market Regulations, casts new light on practices of sharing. Continue reading "Sharing and the City: Re-imagining Regeneration for America’s Urban Core"

Lunney’s Paradox: More Copyright May Lead to Less Creativity

The title of Glynn Lunney’s new book, Copyright’s Excess, presents a puzzle for those of us who have reflected on the nature and function of copyright law. Copyright is typically justified as a system of incentives. By giving authors (and by contract, publishers) exclusive control over commercially significant reproductions and distributions of their artistic and literary works, copyright helps to ensure that the copyright owner, and not copyists, will capture any profits made from exploiting the work. Copyright, in short, is supposed to help authors make more money. And in a world that works as economists expect, more money for authors should lead to more creative output. The equation seems simple: more copyright = more art and culture. But is this true? Is it possible that copyright protections might backfire, and result in less creative output rather than more?

Lunney’s book offers considerable evidence that, at least in the music industry, it is at least an uncomfortably plausible possibility that more copyright has led to less creativity. Lunney, a lawyer-economist, takes a painstaking look at music sales data dating back to the early 1960s, including data tracking the rise of recording music revenues up to Napster’s debut in 1999, followed by their precipitous decline. The shock to music industry revenues caused by Napster (and what followed) provided the makings for a terrific natural experiment: did increased revenue from the early 1960s to 1999 lead to more new music? And did plummeting revenues after 1999 lead to a dearth of new music? Continue reading "Lunney’s Paradox: More Copyright May Lead to Less Creativity"

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