Monthly Archives: March 2019

A New Vision for LGBT Rights Critique and Reform

Libby Adler’s remarkable 2018 book, Gay Priori, joins a long list of academic critiques of the LGBT rights movement. But Adler sets herself apart in three critical ways: First, Adler does not blame LGBT advocates but instead locates advocates in a broader framework of “LGBT equal rights discourse” that comprehends only some harms and envisions only some solutions. Second, Adler is not satisfied with merely critiquing the prevailing approach to LGBT rights. Rather, she translates her theoretical arguments into an affirmative vision for reform—a vision that keeps faith with law. Third, Adler’s prescriptive claims do not sound in radical transformations that most LGBT advocates would dismiss as impractical. Instead, she offers realistic, grounded, and detailed forms of intervention that LGBT advocates would support and can implement. Gay Priori is a powerful call to action that manages to be both theoretically sophisticated and practically oriented. It is perhaps the most careful, grounded, and constructive critique of mainstream LGBT rights work one can read.

First, consider Adler’s treatment of what she terms “LGBT equal rights discourse.” A familiar set of practices, narratives, priorities, and frames shapes law reform on behalf of subjects who are understood to have a minority identity based on sexuality and/or gender identity. With the emphasis on judicial neutrality and formal equality in constitutional and antidiscrimination law, marriage access and nondiscrimination mandates appear as logical priorities. LGBT equal rights discourse, Adler observes, also resonates with neoliberal impulses toward privatization and personal responsibility, again making understandable the focus on marriage and employment nondiscrimination. Continue reading "A New Vision for LGBT Rights Critique and Reform"

Cardozo’s Great Proximate Cause Decision?

Kenneth S. Abraham & G. Edward White, Recovering Wagner v. International Railway Company, 34 Tuoro L. Rev. 21 (2018).

Featuring the memorable phrase “Danger invites rescue,” Cardozo’s opinion in Wagner v. International Railway Co. is engaging and beautifully written. The same can be said of Recovering Wagner v. International Railway Company (hereinafter “Recovering Wagner”)─the recent study of Wagner by Ken Abraham and Ted White (hereinafter “AW”). Through historical research principally into the litigation of the case, they generate an important new interpretation of Wagner. According to AW, Wagner forced Cardozo to confront what lawyers then and now would call a “proximate cause” question. Yet his opinion does not explicitly mention proximate cause (or duty, for that matter). Instead, it employs a notion of relationality of risk. Indeed, AW powerfully argue, the whole point of Wagner is that relationality of risk is far more important than the idea of a “natural and probable” sequence from breach to injury, or any kind of remoteness criterion, in determining whether a defendant should be held responsible in negligence for a plaintiff’s injury. Their larger point is that Wagner can be seen to encapsulate Cardozo’s powerful influence on American negligence law.

Abraham and White’s research confirms that Cardozo’s depiction of the facts in Wagner is largely accurate. I follow their judgment that quoting Cardozo’s account is the best way to re-acquaint readers with the facts of the case:

The defendant operates an electric railway between Buffalo and Niagara Falls. There is a point on its line where an overhead crossing carries its tracks above those of the New York Central and the Erie. A gradual incline upwards over a trestle raises the tracks to a height of twenty-five feet . . . Then comes a turn to the right at about the same angle down the same kind of an incline to grade. Above the trestles, the tracks are laid on ties, unguarded at the ends . . . On the bridge, a narrow footpath runs between the tracks . . . .

Plaintiff [Arthur Wagner] and his cousin Herbert [Wagner] boarded a car at a station near the bottom of one of the trestles . . . The platform was provided with doors, but the conductor did not close them. Moving at from six to eight miles an hour, the car, without slackening, turned the curve. There was a violent lurch, and Herbert Wagner was thrown out, near the point where the trestle changes to a bridge . . . Plaintiff walked along the trestle, a distance of four hundred and forty-five feet, until he arrived at the bridge, where he thought to find his cousin’s body . . . Reaching the bridge, he had found upon a beam his cousin’s hat, but nothing else. About him, there was darkness. He missed his footing, and fell (P. 437). Continue reading "Cardozo’s Great Proximate Cause Decision?"

The Consequences of Cashing-In on Death

David Horton, Borrowing in the Shadow of Death: Another Look at Probate Lending, 59 WM. & Mary L. Rev. 2447 (2018).

For decades, state and federal governments have increased their watch on fringe lending practices such as payday loans, title loans, tax refund anticipation loans, and pension loans. The main reason for this increased regulation is that these loans often have astronomical interest rates which may force borrowers to come back for renewal loans. Probate loans are a lesser known form of fringe lending that have managed to slip below the radar of nearly all regulatory bodies in the United States.

Professor David Horton identifies the issues and discusses the alarming consequences of probate loans in his article entitled Borrowing in the Shadow of Death: Another Look at Probate Lending. His article examines three common methods of fringe finance, tax refund anticipation loans (RALs), payday loans, and pension loans, and then focuses on probate loans by drawing comparisons between the methods and identifying similarities. Continue reading "The Consequences of Cashing-In on Death"

When American Pipe Met Erie

Stephen B. Burbank & Tobias Barrington Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018).

The White House is engulfed in scandal. Prosecutors and congressional investigators tighten their net around a beleaguered President and his inner circle. A constitutional crisis looms, and our nation’s faith in the rule of law hangs in the balance.

As the legal and political drama of our current moment unfolds, it remains to be seen whether today’s Supreme Court will play the same role that it was called upon to play in 1974. The current Court has, however, immersed itself in another 1974 classic: the eponymous tolling rule of American Pipe & Construction Co. v. Utah. Twice in the past two years, the Court has revisited American Pipe tolling: first in California Public Employees’ Retirement System v. ANZ Securities, Inc. (CalPERS) and then in China Agritech, Inc. v. Resh. In the wake of these decisions, Steve Burbank and Tobias Wolff provide a comprehensive and much-needed exploration of “the source, reach, and limits of the tolling rule for federal class actions that originated in American Pipe.” They persuasively argue that the Supreme Court has lost its way, misperceiving the underlying rationale and purpose of American Pipe tolling. Continue reading "When American Pipe Met Erie"

The Lolcat Theory of Internet Law

An Xiao Mina, Memes to Movements (2019).

Any Internet regulation—from privacy to copyright to hate speech to network neutrality—must take account of the complex and messy dynamics of meme-fueled conflicts. And for that,  An Xiao Mina‘s Memes to Movements is an essential guide.

Mina is not a traditional academic. She is a technologist, artist, and critic; her day job is Director of Products at Meedan, which builds tools for global journalism. But Memes to Movements draws fluently on cutting-edge work by scholars like Alice Marwick and Rebecca Lewis, Whitney Phillips, and Sasha Costanza-Chock, among many others. It is an outstanding synthesis, beautifully and clearly written, that gives an insightful overview of media and politics circa 2019. Continue reading "The Lolcat Theory of Internet Law"

Opening Up the Law to Accommodate Non-Binary Genders

Jessica A. Clarke, They, Them and Theirs, 132 Harv. L. Rev. 894 (2019).

Professor Jessica Clarke‘s law review article, They, Them, and Theirs, published this year in the Harvard Law Review, does important work in conceptualizing ways that anti-discrimination and other laws can change to accommodate non-binary people. This piece adds significantly to the emerging body of legal scholarship concerning non-binary persons, including such projects as The Future of Legal Gender: A Critical Law Reform Project,  in the UK, and Ontario Human Rights Commission: Backgrounder – Talking about Gender Identity and Gender Expression in Canada. One of the most interesting aspects of Professor Clarke’s approach is her rejection of a one-size-fits-all solution in favor of a more contextual and pluralistic set of solutions.

As Professor Clarke explains, non-binary persons pose special challenges for the existing legal framework of anti-discrimination law, although, as she suggests, none of these challenges is insurmountable. One example of such a challenge is that non-binary identity disrupts the common transgender rights narrative that a transgender person is simply trapped in the wrong body. Such a narrative can sometimes fit comfortably in anti-discrimination law frameworks in the sense that the narrative seems to mesh nicely with the decades-old case law prohibition on stereotyping based on sex. Like the gruff, cursing plaintiff in Price Waterhouse v. Hopkins, who did not fit with stereotypical notions of womanhood espoused by the male partners in the accounting firm that employed her, the transgender person who was born a man but identifies as a woman may be perceived as not quite fitting with traditional notions of what it means to be a woman, and the discrimination against her in a work context may thus be seen as actionable under employment discrimination laws like Title VII. The non-binary person’s claim is harder to categorize because the discrimination they face is usually not so easily traced back to stereotyped ideas as to the gender that women (or men) are expected to perform. Posing issues similar to those posed by bisexuality in some contexts, with a non-binary person, the comparator (who must be proven to have been more favorably treated in traditional discrimination law) may be unclear. However, this problem dissipates if one looks to how gender-binary persons are treated in a workplace compared to non-binary persons, instead of trying to sort out whether the non-binary person’s treatment should be compared to that of women or men. Continue reading "Opening Up the Law to Accommodate Non-Binary Genders"

Give the Digital Services Tax a Chance

  • Wei Cui, The Digital Services Tax: A Conceptual Defense (Oct. 26, 2018), available at SSRN.
  • Wei Cui & Nigar Hashimzade, The Digital Services Tax as a Tax on Location-Specific Rent (Jan. 23, 2019), available at SSRN.

Proposals from the European Council and the UK governments to introduce a digital services tax (DST) took those of us who haven’t been watching the field as closely as we should have by surprise. A DST might be levied on a revenue base, such as revenue from selling online advertising, intermediary services or data; at a low rate, perhaps 3%; on companies that exceed a size threshold, such as total revenue of 750 million euros. Coming in the wake of a protracted period in which the Organisation for Economic Co-operation and Development focused on negotiating arguably minor changes to the international tax framework (through the “base erosion and profit split” (BEPS) project), the DST seems to be moving like a high-speed train.

Scholars and policy makers have made efforts to justify (or contest) the normative underpinnings and economic consequences of the DST. In this context, two related papers—one by Wei Cui and Nigar Hashimzade and the second by Wei Cui—offer some helpful and novel analysis. Continue reading "Give the Digital Services Tax a Chance"

Should Owner Motivation Limit the Exercise of Property Rights?

Lee Anne Fennell, Owning Bad: Leverage and Spite in Property Law, in Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek, eds.) (forthcoming Oxford University Press), available at SSRN.

People sometimes exercise their property rights out of animus or an attempt to gain leverage over someone else. An owner may build a fence from which he gains no benefit because he maliciously wishes to block his neighbor’s view. Or a prospective seller may overstate the minimum price she would accept for a good in an effort to gain an advantage in the negotiations to follow. In the first case, the owner probably commits a civil wrong, while in the second case, the owner probably does not.

In a forthcoming book chapter, Professor Lee Anne Fennell examines when the exercise of property rights constitutes a civil wrong. More particularly, she asks when it is appropriate to examine the motivations of the property owner or the nonowner counterparty. Her “core insight is that there are multiple possible mechanisms through which putatively absolute property rights can be made less so, some of which involve weighing the motives and interests of nonowners instead of, or in addition to, those of owners” (P. 4). Continue reading "Should Owner Motivation Limit the Exercise of Property Rights?"

Out of the Mouths of Babes

International and domestic laws aimed at protecting children involved in human smuggling generally operate under the assumption that these children are vulnerable and defenseless prey to dangerous and violent criminals, for whom they work against their will. In her recent article, “Circuit Children”: The Experiences and Perspectives of Children Engaged in Migrant Smuggling Facilitation on the US-Mexico Border, sociologist Gabriella Sanchez uses original qualitative fieldwork to upend or at least nuance this claim that sits at the heart of current anti-smuggling laws. The children whose stories she tells offer a much more complex picture of their role in helping others navigate the U.S.-Mexico border.

While many scholars have decried the carceral turn in human smuggling laws, Sanchez offers a key piece of evidence demonstrating the fundamental problems with this move to criminalization. It is, as has been far too obvious of late, easy for politicians and governments to demonize actors in the migratory process, both migrants and those who help them to move. But the carceral approach masks the structural forces that render migration both necessary and nearly impossible to undertake lawfully for individuals who do not win the birthplace lottery. Sanchez’s body of work highlights the humanity and dignity of the individuals who facilitate migrant journeys—who might, from a different perspective, be viewed as part of a modern-day Underground Railroad. Though she refrains from hitting the reader over the head, the unmistakable take-away from her work is that these individuals are not the source of the problem; they are doing the best they can in the face of structural and geopolitical forces beyond their control. Continue reading "Out of the Mouths of Babes"

Net Raciality: How Racial Bias Pervades the Digital Space

Catherine Powell, Race and Rights in the Digital Age, 112 Am. J. Int’l L. Unbound 339 (2018).

“The adage ‘on the internet, nobody knows you’re a dog’ reflects a now naïve belief in the emancipatory potential of cyberspace,” writes Catherine Powell in her splendid new essay on race, internet, and international human rights published as part of a Symposium issue on the seventy-year anniversary of the Universal Declaration of Human Rights. In Race and Rights in the Digital Age, Powell critiques the belief according to which the digital space is a raceless and liberating utopia. She compares this online fiction to the offline ideology of colorblindness. Much like colorblindness has been used to conceal and perpetuate racial inequality, the supposed post-racialism of the digital world is a fig leaf masking the fact that it is pervaded with racial bias.

In making this point, she builds upon Osagie Obasogie’s critique of colorblindness that uses a research design involving interviews with blind people about race. Obasogie revealed that even people blind since birth are not colorblind, but just as likely as sighted people to equate race with visual characteristics. Similarly, Powell shows that “[r]ace is a deeply entrenched social construct—both online and offline—even when we cannot literally always ‘see’ it.” Continue reading "Net Raciality: How Racial Bias Pervades the Digital Space"

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