Monthly Archives: March 2020

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"

Neither State Nor Federal Law

David S. Rubenstein, Supremacy, Inc., 67 UCLA L. Rev. ___  (forthcoming 2020), available at SSRN.

Legal scholars have long noted that the federal government increasingly outsources once-deemed-core governmental services to private contractors.  Similarly, scholars have often noted that the scope of government-contractor immunity under Boyle v. United Technologies Corporation and its progeny has metastasized. David Rubenstein’s recent article pushes us to view with a critical eye how these two doctrines work in concert to preempt swaths of state law, all without congressional action.

Rubenstein begins with an overview of history of government outsourcing.  While outsourcing of government functions is as old as the Republic itself, Rubenstein identifies the post-Watergate era as the inflection point for outsourcing, which exploded under both the Reagan and Clinton administrations. While this process has led to a well-recognized loss of congressional control over federal-government processes, Rubenstein argues that it has led to a “leveling down” of state authority as well by (1) occupying areas of traditional state regulation, (2) undercutting spaces for cooperative federalism actions, and (3) outright federal preemption. Continue reading "Neither State Nor Federal Law"

Watch This Space: AI at the Border

Petra Molnar, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, 8 Cambridge Int’l L. J. 305 (2019).

As scholars of immigration law have been busy digesting the firehose of law and policy changes shooting out of the Trump administration, the use of new technologies at the border has been proliferating. Petra Molnar’s new article, Technology on the margins: AI and Global Migration Management from a Human Rights Perspective, reminds us that we must begin to pay closer attention to these developments and how they are deployed and regulated. Building on her excellent report, Bots at the Gate, the article provides a timely and useful roadmap of the relevant technologies and their very real risks. Though in the end Molnar is more sanguine than I about the potential of human rights law to mediate these risks, she rings a crucially important warning bell that we would all do well to keep an ear out for over the roar of the firehose.

The article begins, as it should, with a basic description of the “class of technologies that assist or replace the judgment of human decision-makers.” Automated decision-making has the potential to impact adjudication processes and outcomes by the full range of immigration actors, from border patrol to immigration courts. But what technologies are contained within this category? Molnar lists four: artificial intelligence, machine learning, automated decision systems, and predictive analytics, describing them as technologies that can be taught and can learn. Along with the description, she raises the key concern about the opacity of how exactly these decisions are made. As Frank Pasquale and others have asked, what is in that algorithm? Bias, perhaps? Molnar makes the important connection between the literature that critically examines automated decision-making and immigration adjudication. She notes that these technologies present the same risks as human decision-makers: accountability, bias, discrimination, error, and transparency, reminding us not to be fooled by the algorithm’s veneer of scientific objectivity. Continue reading "Watch This Space: AI at the Border"

Disruptive Innovation Inside the Bounds of Law?

Charles Yablon writes mostly in fields adjacent to Professional Responsibility, such as civil procedure and jurisprudence. However, as a junior associate at a big law firm in the mid-1990s, I found his article on discovery abuse to be refreshingly clear-eyed and unsanctimonious about an ethical problem that was pervasive in my own practice. Ever since then, I have considered him as a kind of honorary legal ethics scholar. It was therefore with considerable interest that I noticed his new paper on providing legal assistance to clients in activities he refers to as “not quite legal.”

Permissible legal assistance to businesses in the emerging cannabis industry is becoming a popular CLE topic (I am presenting a seminar this summer entitled “High above Cayuga’s Waters?”). The discussion is usually framed around Model Rule 1.2(d), which states that a lawyer may not “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Even in a state in which medical or recreational use of cannabis products is permitted under state law, a dispensary or other business is still committing a serious federal felony of possession and distribution of a controlled substance. The on-again, off-again practice by the Justice Department of turning a blind eye to marijuana-related offenses in legal-use states raises an interesting jurisprudential issue. Yablon argues that the formal legal prohibition on the possession or sale or marijuana “should not be treated as the sole dispositive fact” regarding its legality. (P. 345.) Continue reading "Disruptive Innovation Inside the Bounds of Law?"

Brandeis, Hoover, and the Problem of Fair Trade in Interwar America

American Fair Trade is an impressive contribution to the burgeoning literature on the history of the American political economy, a literature energized since the 2008 financial crisis by the emergence of a new subfield known as the “history of capitalism.”

Sawyer’s subtitle alludes to her book’s primary themes: the interrelationship in the half century between 1890 and 1940 of proprietary capitalism, corporatism, and the ‘new competition.’ By proprietary capitalism, Sawyer means the large sector of the political economy that was dominated not by the tiny number of giant mass-production managerial firms that owned and operated their own marketing networks, such as Standard Oil and American Tobacco, but instead by the multitude of specialty-production proprietary firms that relied on distribution networks that they did not control. By corporatism, Sawyer means a political-economic regime in which trade associations representing proprietary firms joined together in a partnership with government regulatory agencies to institutionalize a “neo-Brandeisian” regulatory regime. (P. 260.) By legalizing inter-firm agreements that blocked retailers from undercutting manufacturer-set prices—agreements that she calls “codes of fair competition” (P. 2)—the new regulatory regime protected not only the reputation of the proprietary firm’s brands, but also the margin that it obtained from the retailers that marketed its wares. Continue reading "Brandeis, Hoover, and the Problem of Fair Trade in Interwar America"

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