Yearly Archives: 2019
Apr 4, 2019 David HoffmanContracts
Jacob Hale Russell,
Unconscionability’s Greatly Exaggerated Death, 53
U.C. Davis L. Rev. __ (forthcoming), available on
SSRN.
Jacob Russell has a bone to pick with the contract professoriate, who have consigned unconscionability to a backwater in our courses, trotted out today only in 9th circuit cases that excoriate arbitration clauses before being consigned to an inevitable Supreme Court reversal. In his excellent new draft paper, Russell aims to show that true unconscionability—“rotten deal unconscionability”—didn’t die with the 1960s and 1970s but remains a vibrant part of today’s contracting landscape. The paper offers a compelling account of the functioning of an oft-derided doctrine, and even better, the grist for an enriched classroom exploration of the ways that courts deal with inequality in exchange. You should read it.
The heart of the paper is a caselaw survey, mostly of state court cases that follow the Great Recession. Hiding, as it were, in plain sight, Russell finds dozens of cases in which courts simply are rejecting deals because they were unequal: interests rates too high, foreclosures procured from vulnerable borrowers, routine overdraft fees on debit cards, and payday loans. Two common themes emerge, both remarkable given the doctrine’s repute: the cases involved “common products…sold by mainstream players in the credit industry,” and the courts themselves characterized the remedies as “routine.” Or to put it differently, unconscionability seemingly is routinely disrupting deals at the center of our credit markets. Why, then, are contract professors convinced that substantive unconscionability is a dead letter? Continue reading "Our Unconscionable Contract Casebooks"
Apr 3, 2019 Paul HorwitzConstitutional Law
The rise of instant, personalized access has its costs and benefits. Things like time-shifting, the ability to download songs rather than whole albums, and even SSRN make each person his or her own curator. But we lose the value of communal experience: the experience of encountering an interesting document or idea together and simultaneously.
In American legal academic culture, one such event was, or is, the publication of the Foreword to the Harvard Law Review’s annual Supreme Court Issue. Mark Tushnet and Timothy Lynch’s classic study, “The Project of the Harvard Forewords,” provides one of the best (and only) accounts of both the Foreword’s importance and its “structural constraints.” The article notes the frequency with which the Foreword article, which purports to be both a definitive statement about the most recent Term of the Supreme Court and a definitive statement for each Foreword’s author, disappoints. Indeed, attempting to serve both functions may contribute to that disappointment. The time constraints involved in writing the Foreword, the expectations it carries, and the fact that its authors are often selected because they have already often written their most important work means that most Forewords read like a “set piece,” a “replay” of the author’s greatest hits “in the context of the Supreme Court’s most recent cases.” Sometimes a Foreword fulfills neither function well. Aharon Barak’s 2002 Foreword was essentially a valedictory précis of great work he had already written. Nor was it a helpful guide to the past Term of the Court. Indeed, in its 146 pages, it mentioned just one case decided that Term. Even then, it only did so in the footnotes.
Tushnet and Lynch’s article deserves an update, asking whether the Foreword (or the Supreme Court issue as a whole) can or should survive in its traditional form, given that by the time it appears, the past Term has already been hashed over in countless online discussions and SSRN drafts. In the meantime, there must still be at least a few old fogies, like me, who look forward to the Foreword every year. And although Tushnet and Lynch are right that it is systematically disappointing, the occasional Foreword remains a pleasure worth waiting for and taking notice of. This is true of the latest Foreword, Jamal Greene’s Rights as Trumps?. Continue reading "Doctrine and Discontent"
Apr 2, 2019 Kristin HickmanAdministrative Law
In 2011, Chief Justice John Roberts notoriously criticized the legal academy when he declared at a judicial conference, “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” Legal scholars were unimpressed, to say the least, by Chief Justice Roberts’s flippant dismissal of their work. Perhaps the best response was Professor Orin Kerr’s tongue-in-cheek Green Bag essay in which he documented that, in fact, the Bulgarians really only became interested in Kant’s pronouncements in the late-19th Century and even then mostly ignored his ideas as “obscure and awkward.” Nevertheless, although Chief Justice Roberts’s criticism was a gross exaggeration, like most such overstatements it grew from at least a small kernel of truth—echoing similar, if more soberly presented concerns raised almost twenty years earlier by D.C. Circuit Chief Judge Harry T. Edwards about a “growing disjunction between legal education and the legal profession.”
Legal scholars know, of course, that quite a lot of the scholarship they collectively produce is of use to practitioners, courts, and legislators. Simultaneously, however, legal scholars must, and I think do, acknowledge that not all legal scholarship is useful or of interest to nonacademic readers. Legal scholars sit at the sometimes-awkward intersection of a larger academic community and the practicing bar, each with its own goals, values, norms, and needs. The fact that some legal scholarship appeals more to the former than the latter audience merely reflects that reality and does not diminish its value. Nevertheless, it is in our own interest as legal scholars to counter the narrative promoted by Chief Justice Roberts and others by calling attention to legal scholarship that may be of use to the more practical of our two audiences, even while it appeals to the more academic as well. Nick Parrillo’s groundbreaking work on federal agency guidance is an exemplar of this kind of legal scholarship. Continue reading "In Praise of Practical Scholarship"
Apr 1, 2019 Anne Marie LofasoWork Law
Joseph E. Slater, Will Labor Law Prompt Conservative Justices to Adopt a Radical Theory of State Action?, 96 Neb. L. Rev. 62 (2017).
Late last year, in Janus v. AFSCME, the Supreme Court held unconstitutional all union-security clauses in public-sector collective-bargaining agreements. Union-security clauses are contractual provisions that oblige union bargaining unit members to pay agency fees – that portion of union dues that pays for collective-bargaining-related activities such as contract negotiations and grievance-arbitration. In finding that such clauses violate the First Amendment, the Court, in a 5-4 decision, overturned Abood v. Detroit Board of Education, a 41-year old precedent with no dissenting opinion. Many labor scholars (including Joseph Slater) and activists predict that Janus will have a large economic impact on unions because, under a doctrine known as the duty of fair representation, unions must represent employees whether those employees pay full dues, agency fees, or no dues. These thinkers thus predict that unions won’t be able to collect as much money to represent all employees. As a corollary, diminished union treasuries will foreseeably harm the Democratic Party insofar as unions tend to give more to the Democrats than to other political parties.
For these reasons, Professor Slater’s thoroughly researched, brilliantly analyzed, and well-written article, Will Labor Law Prompt Conservative Justices to Adopt a Radical Theory of State Action?, presents an important question: Given that the Court has unceremoniously disturbed stare decisis to declare all public-sector union-security clauses unconstitutional, will it find a way to declare all private-sector union-security clauses unconstitutional by adopting a broad theory of state action? Professor Slater correctly concludes that such a conclusion would be incoherent in theory and unworkable in practice. This is because to conclude that all such clauses in private-sector contracts are unconstitutional, the Court would have to adopt an unbounded theory of state action, which would effectively erase the state-action requirement from constitutional analysis and obliterate the public-private law distinction that is so fundamental to our constitution. Continue reading "Will Conservative Justices Sound the Death Knell of State Action? Be Careful for What You Wish"
Mar 29, 2019 Douglas NeJaimeFamily Law
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"
Mar 28, 2019 Benjamin C. ZipurskyTorts
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?"
Mar 27, 2019 Gerry W. BeyerTrusts & Estates
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"
Mar 26, 2019 Adam N. SteinmanCourts Law
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"
Mar 25, 2019 James GrimmelmannTechnology Law
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"
Mar 22, 2019 Ann E. TweedyEquality
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"
