Yearly Archives: 2019
Jul 10, 2019 Steve VladeckCourts Law
At the end of the Supreme Court’s October 2010 Term, George Washington University law professor (now President and CEO of the National Constitution Center) Jeffrey Rosen wrote a pointed essay for The Atlantic titled Why I Miss Sandra Day O’Connor. Justice O’Connor retired from the Court in January 2006, and Rosen was writing to bemoan the sharp conservative turn that he believed the Court had taken over the five years since Justice Samuel Alito had been confirmed as her successor. Although Rosen had strongly criticized O’Connor’s “pragmatic, split-the-difference jurisprudence while she was on the Court,” the utility of that approach—and the centrism it bespoke—had not only become increasingly clear in hindsight, but its absence in cases such as Citizens United v. FEC had become increasingly noticeable, and, to Rosen, distressing.
Eight years later, at the end of the Court’s first Term with its new, solidified five-Justice conservative majority, Evan Thomas’s breezy, thoughtful, and incisive new biography of Justice O’Connor leaves the same impression. The monograph, which the Justice authorized and in which she and her family encouraged colleagues and clerks to cooperate, is more than just a recounting of the high (and lower) points of Justice O’Connor’s remarkable (and remarkably well-documented) life and career and an engaging study of the first woman appointed to the highest Court in the land. It is also an elegy—for a moment in the political life of the country and in the perception (and internal politics) of the Supreme Court that has clearly passed. Exactly 100 years after William Butler Yeats warned that “the centre cannot hold,” Thomas’s volume is not just an accessible “intimate portrait” of someone who, in his words, “is easy to caricature and harder to understand;” it is a powerful reminder of the increasingly forgotten virtues of moderation, compromise, and civility—not just within the marble halls of One First Street, but on Main Street, as well. Continue reading "The Center Cannot Hold"
Jul 9, 2019 Daniel CobleCriminal Law
Jeffrey Bellin,
Fourth Amendment Textualism, __
Mich. L. Rev. __ (forthcoming 2019), available at
SSRN.
In Fourth Amendment Textualism, Professor Bellin tackles an age-old question: what is a search? His article takes a deep dive into the text of the Fourth Amendment, how the Supreme Court has interpreted it, and how he would like the Court to return back to the original meaning.
While this paper brings forward a thought-provoking analysis of the Fourth Amendment, it also has the ability to teach the reader about current search and seizure jurisprudence. The article provides students of the constitution familiarity with what a search is and how the Supreme Court has arrived at its current thinking, while at the same time, opening up a slight rift in the common and unshakeable understanding of that familiar terrain. Continue reading "Not Your Scalia’s Textualism"
Jul 8, 2019 Cristie FordCorporate Law
Perhaps the marker of a really good observation is that once it’s been made, it seems obvious, and we’re surprised that it hasn’t been made before. This is Sarah Light’s article, The Law of the Corporation as Environmental Law.
Climate change is a terribly urgent problem. Limiting global warming is a priority that, according to some, calls for wartime levels of mobilization. Yet in an imperfect world, with consensus on basic priorities lacking, some of us have learned to look not only to ambitious regulatory programs but also to the kind of incremental work that, unglamorous as it may seem, could produce real change now. It may be the dysfunctional state of current high politics in the US and the UK that has provoked several academics to think, again, about what might be possible through other mechanisms (see, e.g., Tom Lin, Iris Chiu & Edward Greene, John Armour et al.).
Corporate Social Responsibility (CSR)/ Environmental, Social and Governance (ESG) is not new. What is unique in Light’s article is that she argues for seeing corporate and business law—corporate law, securities regulation, antitrust, and bankruptcy—together, as a “single phenomenon with significant implications for firms’ environmental decision making.” (P. 145.) That is, she argues that corporate and business law should be understood as environmental law. Continue reading "A New Perspective on Some Familiar Corporate and Business Law Tools"
Jul 8, 2019 Franita TolsonConstitutional Law
In Passive Avoidance, Professor Anita Krishnakumar argues that the Roberts Court has retreated in recent years from the aggressive use of the constitutional avoidance canon that dominated much of its early jurisprudence. Instead, the Court now relies on doctrines like the rule of lenity, federalism clear statement rules, and the mischief rule as alternatives to the constitutional avoidance canon, a move that she refers to as “passive avoidance.”
This Article is another tour de force in a very impressive body of work. Professor Krishnakumar exhaustively tracked the Court’s use of the constitutional avoidance canon, discussing its high point from 2006-2012 and subsequent decline thereafter. In a number of cases, the Court construed statutory language very broadly—and sometimes implausibly—to avoid serious constitutional questions raised by the statute. Famously, the Court relied on the constitutional avoidance canon in National Federation of Independent Business v. Sebelius, by construing the individual mandate in the Affordable Care Act as a tax in order to avoid the constitutional issues posed by treating it as an exercise of the commerce power. The Court also invoked the canon in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, broadly interpreting the bail out provisions of the Voting Rights Act of 1965 to avoid constitutional issues. She argues that these cases, and others, triggered such backlash that the Court ultimately retreated from active use of the constitutional avoidance canon. Continue reading "The Rise of Stealth Canons?"
Jul 5, 2019 Richard PierceAdministrative Law
James W. Coleman & Alexandra B. Klass,
Energy and Eminent Domain, 104
Minn. L. Rev. __ (forthcoming, 2019), available at
SSRN.
Energy and Eminent Domain, by James Coleman and Alexandra Klass, is a must read for anyone who is interested in administrative law, government regulation, constitutional law, property law, energy law, environmental law, or climate change. I hope that I have not left anyone out, because I think that anyone who has any interest in law or public policy should read this article. Its substance is important and timely, and its narrative style makes it an easy and pleasant read.
The topic of the article is the use of eminent domain by privately-owned companies that construct oil and gas pipelines and electricity transmission lines. I suspect that many legal academics are not even aware of the routine use of eminent domain by private energy companies. I know that the Justices of the Supreme Court are not aware of that longstanding and ubiquitous practice. In its unanimous April 29, 2019 opinion in Thacker v. TVA, the Court held that TVA is immune from tort suits only when it performs a governmental function and not when it “acts like any other company producing and supplying electric power.” The Court referred to use of the eminent domain power as an illustration of a uniquely governmental function that cannot be performed by a private company: “When the TVA exercises the power of eminent domain, taking landowners’ property for public purposes, no one would confuse it for a private company.” Continue reading "Why Energy Companies Must Use the Power of Eminent Domain"
Jul 4, 2019 Alexander Boni-SaenzTrusts & Estates
Alberto B. Lopez & Fredrick E. Vars,
Wrongful Living, 104
Iowa L. Rev. 1921 (2019).
Advance directives are often recommended, but rarely used. The latter fact is an alarming one, and Professors Alberto Lopez and Fredrick Vars tackle this problem in their Article Wrongful Living. After identifying the root causes of this state of affairs, they provide innovative practical and conceptual proposals for implementing the wishes of those who have taken the time to exercise their prospective autonomy. They argue for a tripartite solution to the persistent problem of advance directive underutilization. First, they recommend creating a nationwide registry of advance directives. Second, they suggest that attorneys be exposed to professional discipline and malpractice liability for failing to enter advance directives into said registry. Third, they reconceptualize the nature of the damages that flow from medical interventions that lead to undesired continued life, making wrongful living claims potentially more cognizable to courts. This holistic analysis of advance directives is admirable for providing a realistic blueprint for law reform, and the Article is a must-read for those scholars working in the areas of incapacity planning, health law, and torts.
Lopez and Vars first perform some necessary brush clearing by discussing the historical and philosophical background of advance directives. They detail the legal history of the device, including its origins in informed consent doctrine, the flurry of state and federal legislative activity that allowed and promoted its use, and the high-profile cases of Karen Ann Quinlan and Nancy Cruzan. They then turn to the thornier philosophical issues around advance directives, focusing on the Ronald Dworkin-Rebecca Dresser debates on their utility or normative desirability. They conclude, unsurprisingly, that advance directives do protect important autonomy or dignity interests, creating a need to analyze how best to legally implement them. Continue reading "Implementing Prospective Autonomy"
Jul 3, 2019 Sandy SteelTorts
Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 Law Q. Rev. 602 (2018).
In English law, there is no general duty not to cause reasonably foreseeable mental distress, even if the distress-causing conduct is culpable. Indeed, the same is true in respect of psychiatric harm. What, however, is the recoverability of damages for mental distress that occurs as a result of a tortious wrong to the person who suffers the distress? Suppose, for instance, that A negligently damages B’s property with the result that B suffers foreseeable mental distress. Here, B’s claim is not that A owed a duty of care not to cause reasonably foreseeable mental distress by A’s act. It is that B is entitled to damages for loss consequential upon a violation of B’s right that A not negligently damage B’s property. This is the question skilfully examined in Descheemaeker’s article. He explores the extent to which damages are recoverable for emotional harm, defined as “any unpleasant emotional reaction” (P. 603), suffered as a consequence of rights violation. Interestingly, he concludes that the law is largely consistent with a simple principle: damages for consequential (or “parasitic”) emotional harm are, in principle, recoverable, within the usual limits of causation and remoteness, for the violation of any tort law right.
Descheemaeker begins by considering why this simple principle is not generally explicitly recognised by the law. Compare damages for economic loss. It is approaching trite law that damages may be recovered for economic loss that is consequential upon the violation of a right, even if a person’s economic interest does not serve to generate wide-ranging freestanding rights that others not set back that interest. Yet it seems true, as Descheemaeker says, that most (English) tort lawyers would be considerably more doubtful of the proposition that any reasonably foreseeable emotional harm that results from the violation of right is recoverable in damages. Continue reading "Recovery for Emotional Distress in Tort"
Jul 2, 2019 Andrea MatwyshynTechnology Law
There once was a dream that was the Internet. But now the harsh morning light of Internet reality propels us to consider whether to get out of bed. Questions of content (un)trustworthiness seem omnipresent, and the liability protections of Section 230 of the Communications Decency Act are showing their age, in the opinion of their Congressional sponsors. Debates over “fake news,“ “deep fakes,” “shallow fakes,” and hybrid warfare reveal diverging ethical defaults, even among similarly situated Internet companies. Anti-vaxxers’ and medical professionals’ opinions are mistakenly considered equivalent by a portion of Internet users, and algorithms make personalized content recommendations that sometimes perpetuate false and radical beliefs. Recent indictments remind us that jurists have never resolved the question of who counts as a “publisher” on the Internet (and what duties of care that role entails). Meanwhile, machine-learning practitioners, information security experts, and other technology professionals debate the construction of shared ethical codes and professional practices. Each of these conversations inevitably implicates questions of content intermediation in technology contexts, as well as the role of “expert” knowledge, professional licensing/credentialing, and professional liability.
Claudia Haupt in Licensing Knowledge asks us to consider “whether expert knowledge is still relevant in the information age.” Answering in the affirmative, Haupt’s article offers an injection of helpful intellectual rigor into discussions of knowledge construction, expertise, and the First Amendment. Haupt engages head-on the question of the Yelpification of expertise and knowledge (and its corresponding quality control challenges) as she takes us on a thought-provoking, interdisciplinary romp into the complex issues of “expert” speech and its intersection with personalization, professional licensing, and liability. As the article explains, “[s]cholars of the legal profession have asserted that ‘[t]he Internet has provided consumers with increasing access to information about the law and to information about the quality of services provided.’” (P. 522.) Yet, the ability to judge the quality of this information presents challenges particularly because of the rise of the lay “Internet expert.” These information asymmetries impact information accuracy and warrant consideration. Continue reading "Democratized Content and Its Discontents"
Jul 1, 2019 Hila KerenContracts
David A. Hoffman & Erik Lampmann,
Hushing Contracts, __
Wash. U. Law Rev. __ (forthcoming), available at
SSRN.
Contracts should not be confused with contract law: contracts are private tools, but contract law is public. This distinction is particularly evident when the legal system provides enforcement services to parties who cannot work out their relationship without seeking state help. What, then, is this legal system supposed to do when asked to enforce a private contract that threatens to harm the public? While this question is centuries old, it has re-surfaced in recent years with unusual urgency. The contemporary rise of the issue may be linked to peak levels of inequality: in their carefully drafted contracts, stronger parties use their power not only at the expense of their counter-parties, but many times also in ways that negatively impact the wellbeing of third parties and the fundamental values that support our social existence.
In Hushing Contracts, David Hoffman and Eric Lampmann provide an important case study of this problem by closely examining the practice of using non-disclosure agreements in the context of sexual misconduct in a deliberate effort to conceal sexual misbehaviors. To elicit our most intuitive ability to recognize the predicament, the authors powerfully open with a reminder of the USA Gymnastics sexual abuse scandal. They invite us to recall the “national furor” that followed the revelation that USA Gymnastics used a contract to buy the silence of McKayla Maroney, a gold-medal winning American gymnast, in an effort to hide the sexual scandal from the public eye. Such national furor in and of itself evidences a core idea of the article: that private contracts have the potential to infringe upon matters the public strongly and justifiably cares about. Continue reading "The Public Voice of Contract Law"
Jun 28, 2019 Michael W. CarrollIntellectual Property Law
What is the relationship between copyright law and artificial intelligence or machine learning systems that produce outputs biased by race, gender, national origin, and related aspects of being human? That is the question that Amanda Levendowski investigates and addresses in her refreshingly well-written, to-the-point article How Copyright Law Can Fix Artificial Intelligence’s Implicit Bias Problem. In a nutshell, she argues that: (1) these systems need large quantities of training data to be effective; (2) those building these systems rely on biased data in part because of their own biases but also because of potential risks of copyright infringement; and (3) more copyrighted works can legally be included as training data under the fair use doctrine and should be so used to selectively diversify the inputs to these systems to de-bias their outputs.
Levendowski starts with the problem in the form of Google’s natural language processing system word2vec. It is a form of neural word embedding that analyzes the context in which words appear in the source texts to produce “vectors,” which indicate word associations such as “Beijing” is to “China” as “Warsaw” is to “Poland.” Trained by analyzing the published news sources incorporated into Google News to which Google has obtained a copyright license, word2vec ingests the biases in those sources and spits out results like “man” is to “computer programmer” as “woman” is to “homemaker.” Levendowski acknowledges that those in the machine learning research community agree that this is a problem and are in search of a solution (including Google’s own researchers), but she responds that it should not be left only to developers at large technology companies with access to the training data to de-bias their own systems. Continue reading "Using Fair Use to Reduce Algorithmic Bias"
