Yearly Archives: 2019
Apr 18, 2019 Laurel TerryLegal Profession
In July 2018, the State Bar of California authorized the formation of a Task Force on Access Through Innovation of Legal Services. This Task Force has been asked to identify possible regulatory changes to enhance the delivery of, and access to, legal services. It will address three broad topics: 1) the definition of unauthorized practice of law; 2) lawyer marketing, advertising, partnership, and fee-splitting rules; and 3) non-lawyer ownership and investment. The first sentence of the Task Force Fact Sheet states that “Too many Californians needing legal services cannot afford an attorney or don’t have meaningful access.” The second sentence of the Fact Sheet cites a 2018 Legal Market Landscape Report that was commissioned by the State Bar of California and written by Professor Bill Henderson.
Professor Henderson’s 2018 Legal Market Landscape Report is a document that all lawyers should read. It is jam-packed with data, and it provides the grounding for California’s ongoing conversations regarding the proper scope of lawyer regulation. Moreover, much of the information in the Report is not California-specific and thus is of interest to anyone who is concerned about access to legal services and the proper scope of lawyer regulation. Continue reading "Back to the Future (Again) Regarding the Regulation of Legal Services"
Apr 17, 2019 Dennis PattersonJurisprudence
The interface between law and neuroscience has been a continuing source of interest for lawyers and philosophers. Many scholars have hailed developments in neuroscience as singularly transformative for our understanding of human agency. Further—it is argued—once we understand human agency from the neuronal point of view, we will be forced to alter the ways in which our practices of responsibility—especially law—regulate human conduct.
In the view of some scholars, claims for the transformative impact of neuroscientific developments on law are overblown. Taken to an extreme, those who trumpet the transformative effects of neuroscience on law have sometimes been found to suffer from the malady Stephen Morse labels “Brain Overclaim Syndrome.” Labelling the syndrome a “cognitive pathology,” Morse argues that claims made by those in the grip of the pathology make claims that cannot be conceptually or empirically sustained.
The authors of this provocative and interesting book make strong claims for the importance of neuroscience for our practices of responsibility. Their strongest conceptual claim is one they make often. In fact, the claim is the central thesis of their book. When it comes to responsibility assessment, the authors argue that the brain itself—specifically its executive functions—are “the seat of human responsibility.” (P. viii.) Continue reading "The Neuroscience of Responsibility"
Apr 16, 2019 Christopher J. BuccafuscoIntellectual Property Law
Abhishek Nagaraj & Imke Reimers,
Digitization and the Demand for Physical Works: Evidence from the Google Books Project (2019), available at
SSRN.
From 2004 until 2009, the Google Books Project (GBP) digitized thousands of books from the collection of Harvard University’s library and made them available online. According to Google and proponents of the GBP, digitization would introduce readers to books that they otherwise couldn’t find or obtain, increasing access to and interest in the digitized works. But according to some authors and publishers, the creation of free digital copies would usurp the demand for print copies, undermining an important industry. This dispute was at the heart of a decade of litigation over GBP’s legality. After all of that, who was right?
According to a recent empirical study by economists Abhishek Nagaraj and Imke Reimers, the answer is: both of them. The paper, Digitization and the Demand for Physical Works: Evidence from the Google Books Project, combines data from several sources to reveal some key features about the effects of digitization on dead-tree versions of books. The story they tell suggests that neither of the simple narratives is entirely correct. Continue reading "Discovery, Cannibalization, or Both: How Digitization Affects Demand for Physical Copies"
Apr 15, 2019 Alex B. LongWork Law
Leora Eisenstadt,
Data Analytics and the Erosion of the Work/Non-Work Divide, __
Am. Bus. L.J. __ (forthcoming 2019), available at
SSRN.Much has been written in recent years about how technology that is designed to make us all better connected has blurred the line between work and non-work time. For example, in an age in which many non-exempt workers check work email after work hours, on vacation, or on sick leave, defense lawyers have warned their clients about the potential for claims for overtime pay pursuant to the Fair Labor Standards Act (FLSA). Likewise, much has been written about the erosion of employee privacy in an age in which employers increasingly have the ability to use new technology to monitor their employees’ activities.
Professor Leora Eisenstadt’s forthcoming article, Data Analytics and the Erosion of the Work/Non-Work Divide, discusses these same issues, but with a focus on how the ability of employers to collect employees’ off-duty data impacts the erosion of the work/non-work divide. The article examines employers’ “non-transparent use of data analytics to monitor employee behavior, thoughts, and emotions when they are not working and [their ability] to use this data to make decisions about their workplace success” (P. 18). Continue reading "Erosions of the Work/Non-Work Divide"
Apr 12, 2019 Mary CrossleyHealth Law
Discussions of limits on women’s reproductive choice these days most often focus on legislative efforts to curtail that choice by narrowly limiting abortion access. Sofia Yakren’s new article reminds us that medical malfeasance in failing to provide accurate information about the fetus may also limit a woman’s choice regarding her pregnancy. Yakren’s article considers how tort law’s existing remedy for that malfeasance—the “wrongful birth” cause of action—is anti-therapeutic, harming the woman who seeks redress (and potentially her child) and stigmatizing people with disabilities. Drawing on legal scholarship, disability studies, feminist theory, psychological research, and journalistic accounts, the article is an important read for those interested in bioethics, torts, and feminist or disability studies.
Reproductive torts are sometimes characterized as embodying an inevitable tension between the interests of a disabled child (and disability advocates more broadly) and the interests of a woman (and feminists more broadly), but Yakren resists that smooth path. Her article criticizes how existing wrongful birth jurisprudence requires a mother to claim in court that, had she received accurate information from her doctor prenatally, she would have terminated her pregnancy. According to Yakren, this requirement leads to mothers being blamed and shamed—by courts and the media—for cold-heartedly rejecting their disabled children and being criticized—by disability advocates—for stigmatizing disabled lives as harmful. Yakren’s goal is to “shift[] blame from mothers to the legal system.” (P. 583.) In other words, the problem is not that mothers are cold-hearted, it is that the legal system forces them to act that way to recover resources needed for child rearing. To accomplish this goal, she offers a nuanced and contextual consideration of the emotional and financial experiences of plaintiff-mothers. Continue reading "Righting Wrongful Birth"
Apr 11, 2019 Kaiponanea MatsumuraFamily Law
Camille Gear Rich,
Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child, __
Minnesota L. Rev. __ (forthcoming, 2019), available at
SSRN.
“But not yet have we solved the incantation of this whiteness, and learned why it appeals with such power to the soul; and more strange and far more portentous—why, as we have seen, it is at once the most meaning symbol of spiritual things, nay, the very veil of the Christian’s Deity; and yet should be as it is, the intensifying agent in things the most appalling to mankind.” —Herman Melville
Consider this breezy narrative published a few years ago in the New York Times: “I chose my son by clicking and unclicking a series of boxes, not unlike online dating. Some days, I’d scroll through all of the redheads. Other days, all of the Jude Law look-alikes….There was no easy way for me to choose from so many flawless (but relatively indistinguishable) men, particularly when this choice would have such a profound impact on both my life and my child’s. [¶] One of them looked like Tom Brady and had a Ph.D. I added him to my cart.” Stories like this are increasingly commonplace and seemingly innocuous. That is, until something goes wrong. For Jennifer Cramblett, that moment came when, already pregnant, she decided to order more sperm from a sperm bank so that, down the road, she and her partner could give their baby a biologically related sibling. While on the phone placing her order, she encountered a mixup regarding the donor’s identification number: did Cramblett really mean donor number 380, not 330, the receptionist asked? Did Cramblett request an African American donor? Cramblett replied, “‘No, why would I do that? My partner and I are Caucasian.’” As it dawned on her that she was likely pregnant with a mixed-race child, Cramblett’s “excitement and anticipation of her pregnancy was replaced with anger, disappointment and fear.” Cramblett ultimately sued the sperm bank alleging harms stemming from the sperm bank’s racial mistake.
Cramblett’s personal misfortune reveals an unremarked trait shared by the pool of “flawless,” “relatively indistinguishable,” Jude-Law- and Tom-Brady-like sperm donors in the New York Times story: their whiteness. Some people may see nothing wrong with the practice of selecting sperm or eggs because of the perceived race of the donor. Others may be troubled by the prospect of racially motivated gamete selection but view it as an unfortunate side effect of respecting individual autonomy. In her thoughtful and provocative new article, Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child, Professor Camille Gear Rich challenges these views. She uses Cramblett’s lawsuit against the sperm bank as a jumping-off point to show how the Assisted Reproductive Technology (“ART”) market packages race and produces the discriminatory preferences that ultimately lead to racial subordination. By detailing the market framework for the exercise of supposedly private preferences, Rich calls attention to the ways in which the law can subsidize or alternatively dismantle private discrimination. Continue reading "Purchasing Race; or, The Pursuit of White Sperm and Eggs"
Apr 10, 2019 Elaine CraigEquality
In 1846, prison administrators at the Kingston Penitentiary replaced the daily whipping and flogging of prisoners with a new form punishment – The Box. The Box, as Ted McCoy describes it in his new book, Four Unruly Women: Stories of Incarceration and Resistance from Canada’s Most Notorious Prison, was a six foot tall, three foot deep coffin used to impose a form of extreme isolation on unruly prisoners. The Box became the primary form of severe punishment for women prisons at Kingston when flogging was abolished.
Four Unruly Women depicts a shocking portrait of the cruelty and inhumanity imposed upon the women imprisoned in Kingston Penitentiary between 1835 and 1935. McCoy also tells a powerful story about the incredible courage exhibited by women prisoners who resisted the practices of system oppression and patriarchy relied upon to structure the carceral environment in which they were imprisoned. In addition to floggings and extreme isolation these women were placed in dungeons, starved and, of course, sexually assaulted. Continue reading "Celebrating Four Unruly Women"
Apr 9, 2019 Suja A. ThomasCourts Law
Criminal cases—or for that matter civil ones—don’t go to trial any longer. For a variety of reasons, in criminal matters, plea bargaining has replaced trials. This has occurred in both juvenile and adult cases.
Most juvenile and adult cases differ significantly, however. The justification is the alleged purpose of juvenile courts to rehabilitate youth. This rehabilitation supposedly involves the judge as an understanding, parent-like mentor to the child.
Because plea bargaining effectively bypasses this process, the study of plea bargaining’s effect on youth is particularly important. Currently, the special procedures in juvenile court—such as confidentiality—have led to little check on the prosecution of youth. This has resulted in some bad consequences including the false detention of children, as illustrated in the Kids for Cash documentary.
Erika Fountain and Jennifer Woolard have endeavored to study the plea-bargaining process for juveniles. Their article is part of a series of work, some of which is included in a dissertation. Continue reading "Plea Bargaining with Juveniles"
Apr 8, 2019 SpearItCriminal Law
If prisons are about keeping prisoners locked in, it is safe to say that they do an equally good job of keeping the public out. Professor Demetria D. Frank’s article, Prisoner-to-Public Communication, explores how prison mail policy does both: The practice of censoring outgoing prisoner mail keeps some speech from ever escaping the prison, and by default, the public is made more ignorant about prison life and conditions. As a result of this censorship, there is less public knowledge and less motivation for greater public oversight of corrections facilities. Frank’s remedy for these twin harms is to provide prisoners with an “unqualified and unfettered prisoner-to-public communication” right as a means of validating prisoner voices and increasing the accountability of the executive branch of government.
The issue Frank raises is critical in the age of mass incarceration, where state and federal penal systems rely on prison as a mainstay punishment for felony crimes. This reliance has made the U.S. a world leader in incarceration. With such wide-scale deprivations of human liberty, one might suspect that prisons would be subject to rigorous external accountability, perhaps more so than any other government institution or agency. After all, prisons are total institutions that govern 100% of an inmate’s existence and make them 100% dependent on the prison. With so many lives in the hands of government institutions, one might think that prisons would be subject to the most stringent regulatory standards—yet this is not the reality. Instead, prison regulatory standards have been declining, and actual monitoring of them is practically non-existent. Continue reading "Give Prisoners a Voice to Increase Prison Accountability"
Apr 5, 2019 Omari SimmonsCorporate Law
Jennifer Hill,
Legal Personhood and Liability for Flawed Corporate Cultures, European Corporate Governance Institute Law Working Paper No. 413/2018 (2018), available at
SSRN.
In Legal Personhood and Liability for Flawed Corporate Cultures, Jennifer Hill provides a thought-provoking, comparative perspective on corporate accountability for misconduct arising from defective culture. Recent scandals involving Volkswagen, Wells Fargo, Uber, Fox News, CBS, and others make clear that culture can contribute to malfeasance that damages both company and societal bottom lines. Such scandals raise key corporate governance questions: (i) how should the law address widespread intra-firm wrongdoing as a matter of criminal and civil liability?; and (ii) should the law target the organization, the senior executives and directors, or the individuals (i.e., “bad apples”) who commit wrongful acts?
The paper compares US, UK, and Australian approaches to two types of liability: (i) entity criminal liability and (ii) individual director and officer liability for breach of duty. The analysis highlights jurisdictional differences and similarities that determine each regime’s ability to promote accountability for misconduct arising from flawed corporate cultures. It also examines the influence of the theoretical lens through which scholars view liability for flawed corporate cultures. Aggregation theories (e.g., nexus of contracts), viewing the corporation as a legal fiction composed of natural persons, create barriers to entity liability. (Pp. 9-14.) By contrast, entity-based theories, viewing the corporation as a separate legal person, can be used to secure legal rights for corporations on the one hand and impose duties on the other. This analysis finds that entity-based theories are better-suited to address accountability for flawed corporate cultures than aggregation theories of the corporation because they: (i) can overcome accountability problems where it is difficult to identify individual wrongdoers; (ii) address diffuse, opaque, and complex operations more effectively; (iii) minimize scapegoating of lower-level employees to protect senior management; and (iv) incentivize self-regulation to avoid liability. Continue reading "Responsibility for Flawed Corporate Cultures"
