Yearly Archives: 2020

Contract in Crisis

Emily Strauss, Crisis Construction in Contract Boilerplate, 82 L. & Contemp. Probs. 163 (2019).

Oddly enough, contract law may help quell at least some of the panic that comes with a pandemic. Sure, contract doctrine can’t tell us about the spread of the COVID-19 virus. But Emily Strauss’ article Crisis Construction in Contract Boilerplate shows how courts adeptly and quietly helped the economy recover during the 2008 financial crisis. She tracks the surprising outcomes and rationale of cases allocating risk among loan originators, investors in residential mortgage backed securities (RMBS), and insurers in those transactions, and reports that they followed a method of contract interpretation she dubs “crisis construction.” Faced with “sole remedy” contract clauses in asset securitization contracts that simply could not remedy the magnitude of losses that investors and insurers suffered, courts abandoned the plain language of those standard clauses in favor of a plaintiff-proposed equitable alternative. That method, Strauss contends, helped restore investor confidence and right the economy.

Those of us who value predictability of contract law—and the rule of law more generally—will be relieved to hear that the judicial rejiggering only lasted a few years. As the economy was getting back on track in 2015, courts quietly reverted to the ordinary course of judicial business by enforcing those “sole remedy” allocation-of-risk clauses. Continue reading "Contract in Crisis"

Grounded Free Speech

Joseph Blocher, Free Speech and Justified True Belief, 133 Harv. L. Rev. 439 (2019).

If protection of freedom of speech has something to do with truth-seeking, we ought to acknowledge that “the goal of free speech is not the maximization of truths in the abstract, but rather the development of knowledge.” Supposing this to be so, Joseph Blocher suggests that “First Amendment theory and doctrine” should find its organizing pulse in the idea of grounding: in investigations of what counts as “justified true belief,” not simply “truth alone.” (P. 459.) Epistemology matters.

“Justified true beliefs” emerge within an individual’s own mind, Professor Blocher thinks, in view of particular “interior” dispositions or distinctive “exterior” states of affairs. Interior and exterior elements are sometimes concurrent, sometime interacting, sometimes decisive alone. This account of “true” beliefs does not claim to be philosophically right without doubt. Blocher believes it works well enough, however. Elaboration often shows well-ordered groups of settings, objectives, investigations, and conclusions. Conjunctions—infrastructure, institutions, and the like—come into view, prompting or otherwise disciplining particular forms of speech within which we frame our assertions of justified true belief, and thus also our claims to constitutionally defensible free speech. Continue reading "Grounded Free Speech"

Refining Administrative Law’s Lessons for Police

Maria Ponomarenko, Rethinking Police Rulemaking, 114 N.W. U. L. Rev. 1 (2019).

The field of Administrative Law typically focuses on federal agencies, but there are tens of thousands of state and local agencies that administer the law on matters of tremendous consequence. As Nestor Davidson recently put it, the field’s “myopic federal focus obscures a massive, submerged, and surprisingly vibrant domain of administration that exists at the local-government level.” Thinking about these other levels of administration can both illuminate the actual workings of important policy areas and prompt fruitful reflection on recurring administrative-law questions.

Maria Ponomarenko’s thought-provoking new article, Rethinking Police Rulemaking, accomplishes both of these worthy goals. One significant species of local administration, she reminds us, is policing. There are close to 18,000 law enforcement agencies across the country, and they make a range of policy choices of great consequence, including regarding the use of force, stop and frisk, enforcement priorities, and “the persistent creep of the surveillance state.” In Rethinking, Ponomarenko brings fresh perspective to debates over how to oversee police agencies. In particular, she challenges a longstanding idea that an administrative-law mainstay, notice-and-comment rulemaking, is the most promising solution for holding police more accountable. Continue reading "Refining Administrative Law’s Lessons for Police"

Failing to Protect Democracy by Failing to Protect Government Employee Whistleblower Speech

Ronald J. Krotoszynski, Jr., Whistleblowing Speech and the First Amendment, 93 Ind. L.J. 267 (2018).

In Professor Ronald J. Krotoszynski, Jr.’s article, Whistleblowing Speech and the First Amendment, he considers how the First Amendment fails to protect the whistleblower speech of government employees and argues the insufficient protection may weaken our democracy. He claims the Supreme Court’s inadequate protection of government employee speech discourages the disclosure of important information that could help voters hold government and its officials accountable. The paucity of speech protection leads to a lack of information which leaves the public underinformed and unable to make intelligent electoral decisions about matters of public importance.

The article is worth the read for its analysis of First Amendment doctrine regarding the speech of government employees, but its focus on the harm to our democracy that flows from that doctrine makes the article particularly fresh and vital. Prof. Krotoszynski’s insights are doubly important in the wake of the whistleblowing allegations that have fueled Congress’ impeachment inquiry regarding President Trump. For all of those reasons, Prof. Krotoszynski’s article is a Thing I Like Lots. Continue reading "Failing to Protect Democracy by Failing to Protect Government Employee Whistleblower Speech"

A Cold Head Is Not Just for Beer Anymore

Thomas E. Simmons, A Trust for Ted’s Head, 88 Miss. L. J. 20 (2019).

Over the past twenty years, a new type of bodily disposition for the deceased has come into vogue. It called cryonics: where the decedent’s body (hereinafter called the “frozen person”) is preserved at low temperature for an indefinite period until medical technology has hopefully advanced enough to revive the frozen person and give him or her renewed life. The chances of revival are estimated to be extremely slim. Nonetheless, there are approximately 250 people currently in cryonic preservation and about a thousand people who have arrangements for cryonic preservation upon their deaths. Four companies currently provide cryonic preservation, and these future frozen people must enter into contracts with these companies to preserve their bodies for an indefinite period of time (well beyond our lifetimes) and to attempt revival when medical technology has sufficiently evolved. But there are serious problems with these contracts.

After explaining the fascinating facts surrounding how the famous baseball player Ted Williams’ head was placed into cryonic suspension, Professor Thomas Simmons points out that breach of a cryonics contract is likely (i.e., mishandling the body, incorrect preservation procedures, mismanagement of the cryonics company, early defrosting, etc.) and that enforcement is problematic. Who would enforce it? The frozen person’s surviving family members (or their descendants)? The frozen person’s estate? Imagine if the cryonics company preserving the body went bankrupt hundreds of years later. Also, Professor Simmons points out that timing is extremely sensitive after death for someone who wants to be cryonically preserved. He explains that a directive in a will for moving the body into cryonic preservation could take many days or even longer to be followed while the body needs to be preserved as quickly as possible. Considering these issues, Professor Simmons proposes that a person planning to be preserved establish a non-charitable purpose trust (a “cryo-trust”) which would be a party to the cryonic contract, have standing to sue on behalf of the frozen person, have financial resources to monitor and enforce the contract, determine when medical technology has advanced sufficiently to attempt resuscitation, possess title to the body, and finally provide financial assistance to the formerly frozen person if resuscitation proves successful. Continue reading "A Cold Head Is Not Just for Beer Anymore"

Supplying a Key Piece of the Tort-Decline Puzzle

Alexandra D. Lahav & Peter Siegelman, The Curious Incident of the Falling Win Rate: Individual vs System-Level Justification and the Rule of Law, 52 U.C. Davis L. Rev. 1371 (2019).

In The Curious Incident of the Falling Win Rate, Alexandra Lahav and Peter Siegelman highlight a remarkable—but heretofore overlooked—fact: Between 1985 and 1995, the plaintiff win rate in adjudicated civil cases in federal courts fell precipitously, from 70 percent to 30 percent. In subsequent decades, although the plaintiff win rate has fluctuated, it has generally hovered at or below 40 percent, significantly off its 1985 peak.1 (P. 1371.) From there, Lahav and Siegelman put their discovery in context and explore potential explanations for the observed trend. In this Jot, I’ll endeavor to explain why their Essay—on the face of it, not about the tort system—in fact, supplies an important piece of the tort-decline puzzle. Then, I’ll offer a fuller account of the Essay itself. Finally, I’ll share a few questions the paper stimulates.

First, how is this Essay about the civil justice system in general—and the federal civil justice system, no less—a tort law piece? It’s a fair question since only around 2 percent of tort claims are litigated in federal court. But, the tort system has long been the most controversial corner of the civil justice system, and it’s still one where myths and misinformation abound. Continue reading "Supplying a Key Piece of the Tort-Decline Puzzle"

Moderation’s Excess

Hannah Bloch-Wehba, Automation in Moderation, Cornell Int’l L. J. (forthcoming), available at SSRN.

In 2012, Twitter executive Tony Wang proudly described his company as “the free-speech wing of the free-speech party.”1 Seven years later, The New Yorker’s Andrew Marantz declaimed in an op-ed for The New York Times that “free speech is killing us.”2 The intervening years saw a tidal shift in public attitudes toward Twitter and the world’s other major social media services—most notably Facebook, YouTube, and Instagram. These global platforms, which were once widely celebrated for democratizing mass communication and giving voice to the voiceless, are now widely derided as cesspools of disinformation, hate speech, and harassment. How did we get to this moment in the Internet’s history? In Automation in Moderation, Hannah Bloch-Wehba chronicles the important social, technological, and regulatory developments that have brought us here. She surveys in careful detail both how algorithms have come to be the arbiters of acceptable online speech and what we are losing in the apparently unstoppable transition from manual-reactive to automated-proactive speech regulation.

Globally, policy makers are enacting waves of new legislation requiring platform operators to scrub and sanitize their virtual premises. Regulatory regimes that once protected tech companies from liability for their users’ unlawful speech are being dramatically reconfigured, creating strong incentives for platforms to not only remove offensive and illegal speech after it has been posted but to prevent it from ever appearing in the first place. To proactively manage bad speech, platforms are increasingly turning to algorithmic moderation. In place of intermediary liability, scholars of Internet law and policy now speak of intermediary accountability and responsibility. Continue reading "Moderation’s Excess"

Why New Orleans Has Shotgun Houses and Other Mysteries Solved

Meredith Conway’s article draws titular inspiration from the 1980s Talking Heads song, “Once in a Lifetime.” It’s hard to have been alive in the 1980s and not hear the song echoing in your head while you read her article. The song opens with the lyrics, “And you might find yourself/Living in a shotgun shack.”

What is a shotgun shack?

Shotgun cottages are characteristic New Orleans structures, although the architectural design crops up in other cities (and countries, too). There is some debate about how the houses got the name “shotgun cottages.” Conway isn’t seeking to resolve that debate, so she recounts what is probably the most common narrative. The houses are narrow, usually only one room wide, and when the doors through all the rooms are opened, you can shoot a shot gun and the bullet will travel through the front door, the interior of the house, and straight out the back door.

But why do they exist at all? Here, Conway diverges from the dominant narrative (that they were designed to accommodate narrow urban lots) and offers a tax story instead: perhaps the houses were designed this way as a tax avoidance strategy. According to Conway, many jurisdictions, including the Netherlands, Charleston, Japan, and Vietnam (alongside New Orleans) imposed taxes on elements of house design that inspired architects to build “skinny houses.” She reviews these skinny house-inspiring tax policies in Part IV of the article.

But let’s back up. What’s Conway’s aim in this relatively short (for an American law review) and approachable piece? Her claim is that at least some of the architectural features we see around us are explained by tax policy. Continue reading "Why New Orleans Has Shotgun Houses and Other Mysteries Solved"

Surrogacy, 2.0

Courtney G. Joslin, (Not) Just Surrogacy, __ Cal. L. Rev. __ (forthcoming, 2021), available at SSRN.

Legal conflict over surrogacy has been with us in the U.S. for more than three decades. And yet the conversation in scholarly, legal, and policy debate remains largely centered on the question of whether to permit or prohibit the practice. In an important new article, (Not) Just Surrogacy, Courtney Joslin brings new and critical insights to the conversation about surrogacy—focusing on not whether to allow, but how to regulate. Joslin, one of the country’s leading legal experts on family formation through assisted reproduction, makes two especially significant contributions—one descriptive and the other normative.

Joslin catalogues how every U.S. jurisdiction regulates surrogacy. This includes whether the jurisdiction prohibits or permits surrogacy—and if it permits surrogacy, whether it includes both gestational surrogacy (in which the person serving as surrogate is not genetically connected to the child) and genetic surrogacy (in which the person serving as surrogate is genetically connected to the child). But Joslin goes well beyond these initial questions, supplying the first comprehensive review of surrogacy regulation across multiple dimensions from the perspective of both intended parents and individuals acting as surrogates. Continue reading "Surrogacy, 2.0"

Socioeconomic Zoning and the Housing Dilemma

Sara Bronin, Zoning for Families, 95 Ind. L. J. 1 (2020).

Across America, cities and localities are in the midst of a housing crisis – housing costs are increasing, wages are not keeping up with housing costs for the most vulnerable, and affordable housing production is not keeping up with demand. Partly in response to this trifecta, more than 800 communities have implemented inclusionary zoning policies in the hopes of creating more high-quality, affordable housing.1 More specifically, Minneapolis, Minnesota; Oregon; and California have enacted statutes that prohibit single-family only zoning.

Minneapolis was the first city to ban single-family zoning in 2018. Single-family lots were up-zoned to allow duplexes and triplexes and higher density developments were permitted near transit stops. In 2019, Oregon became the first state to ban single-family zoning.  In cities whose population exceeds 10,000, duplexes are now permitted on lots previously zoned single-family. And, in cities whose population exceeds 25,000, triplexes and fourplexes are now permitted on lots once zoned single-family. California’s first stop towards eliminating single-family zoning has taken the form of permitting single-family lot owners to build accessory dwelling units.

Against the backdrop of a national discussion surrounding access to affordable housing, Sara Bronin, in her article Zoning for Families, challenges her reader to eschew the traditional definition of “family” found in many zoning codes in favor of “functional families.”  Whereas zoning codes typically define the family as people who are related to one another, the definition of functional families expands beyond the boundary of related people “to count as families groups who are not legally related to each other, but who demonstrate behaviors and characteristics of a ‘traditional’ family.” (P. 6.) Continue reading "Socioeconomic Zoning and the Housing Dilemma"

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