Monthly Archives: May 2020

Imaginary Laws

The subject of legal reasoning has stimulated an enormously wide variety of books and essays, articles and comments, offering the reader systematic exposition, technical illumination, practical guidance and critical commentary. The reader is clearly unsatisfied. The production of material continues without any sense that the latest contribution is about to close the debate and complete our understanding. Maks Del Mar’s recent book is not likely to provide the last word on legal reasoning. It does provide a novel perspective on where the elusiveness of legal reasoning might lie. It seems that we cannot capture the subject because however learned we might become in the techniques of reasoning with the law that we have, there is always the problem that imaginary laws might be invoked to disturb the precedents and doctrines, the templates and patterns, into which we fit existing legal materials.

That is a gross oversimplification and mischaracterization of Del Mar’s book, in at least three respects. First, for Del Mar, an imaginary realm of law does not exist outside of existing legal materials but rather legal materials possess an imaginative capacity. Secondly, legal reasoning does not get subverted by stretches of the imagination; instead, the imagination is a core faculty employed in legal reasoning. And thirdly, despite the limitation suggested by its subtitle, this is not simply a book about imagination, nor simply a book about legal reasoning. Continue reading "Imaginary Laws"

Intersectionality in the Opioid Crisis: Anti-Black Racism and White, Pregnant, Opioid Users

Political and social discourse is often characterized by an oppression Olympics. Which group, which characteristic, can assert that they are “more authentic, more oppressed, and thus more correct“? This dynamic appeared in full force during the Democratic primary. Was Pete Buttigieg more oppressed because of his homosexuality? Elizabeth Warren for being a woman? Kamala Harris for being a black woman? As a recent article by Khiara Bridges shows us, thinking about oppression in this way misses the nuance of how different forms of oppression intersect with one another. In Race, Pregnancy, and the Opioid Epidemic, Khiara Bridges weaves together some of today’s most perplexing issues.

Bridges begins with a puzzle. White privilege, as commonly understood, is supposed to promote the life outcomes of white individuals (and, conversely, undermine those of people of color). If that is the case, how can we explain the opioid crisis that has disproportionately undermined the life expectancy of white individuals? The problem can be stated more universally, beyond the opioid context: “[W]hen bad things happen to white people—when the jobs and the industries on which they once relied disappear, when their preferred university denies them admission, when they lose a promotion to a nonwhite candidate, when they die from suicide and drug overdoses at unprecedented rates—we are left to believe that white people experiencing these negative consequences did not have white privilege[.]” (P. 774.) Some might even argue that white privilege never existed to begin with. Perhaps other axes of oppression—sex or poverty—have more oppressive force than race. Continue reading "Intersectionality in the Opioid Crisis: Anti-Black Racism and White, Pregnant, Opioid Users"

Reflections on Family Law

For those of us who spend any appreciable amount of time online—and lately, that is likely many of us—it has been difficult to miss Jia Tolentino’s recently published book, Trick Mirror: Reflections on Self-Delusion, which has enjoyed some measure of digital fame, appearing even on President Obama’s Instagram “Favorite Books of 2019” post. Despite its renown, it is perhaps not yet a “must read” for family law scholars and teachers, which is the genesis for this Jot: it is a book I liked lots, with a number of less-than-obvious connections to, and implications for, family law.

The book is organized into nine different essays that survey a series of contemporary topics ranging from the Fyre Festival debacle, as symptomatic of the modern economic condition, to the history of the University of Virginia, Tolentino’s alma mater, as it relates to sexual assault on campus. Tolentino is a beautiful writer—her sentences are tightly coiled around key insights and her cleverness never gets in the way of her clarity or coherence. In carrying us outside of the terrain of legal texts, Trick Mirror provides a novel vantage point from which to consider themes that lie at the core of family law. I focus here in particular on how Tolentino mines the ubiquity of performance in our public and private lives—her essays follow its stronghold from marriage, to social media, to the lack of meaningful representation. Questions of performance similarly permeate family law, plaguing its very existence: inquiries into performance have the power to decide what families are and which families matter at the same time that they can expose it all as a sham, revealing the whole system to be “no more than a sustained pattern of conduct.”1 Continue reading "Reflections on Family Law"

Thickening Rather than Abandoning the Rule of Law: Revisiting What Counts as “Law” through a Controversy about What Should Guide Judges in Awarding Spousal Support

The rule of law is a ubiquitous if elusive policy and legal term deployed worldwide. It is also a founding narrative of British colonialism. It thus strikes some as anathema to equality. But given its foundational stature in numerous legal orders, when equality-promoting measures are perceived as promoting the rule of law, they can receive the validation they may desperately need. Conversely, when such measures are seen to offend the rule of law, they risk being dismissed as constitutionally illegitimate. What we understand the rule of law to be, then, vitally matters to substantive equality goals. Currently, a formal or thin conception prevails in many jurisdictions. In this narrow conceptualization, the rule of law is directed at maintaining formal separation of powers and a system of positive laws where all exercise of public authority has a legal source, and no one is above the law.

Many equality initiatives, however, to be seen to have rule of law backing and thus legal legitimacy, need a thicker account of the rule of law, one that can keep pace with changing social mores and normative commitments. How, then, to move our legal systems toward this thicker conceptualization? In The Spousal Support Advisory Guidelines, Soft Law, and the Procedural Rule of Law, Jodi Lazare deftly contributes one answer to this all-embracing question with her analysis of a particular tool meant to ensure women’s substantive equality: the Spousal Support Advisory Guidelines (“the Advisory Guidelines”) in Canada. Continue reading "Thickening Rather than Abandoning the Rule of Law: Revisiting What Counts as “Law” through a Controversy about What Should Guide Judges in Awarding Spousal Support"

The New Rap Sheet: Prosecuting Crimes, Chilling Free Speech

Erik Nielson & Andrea L. Dennis, Rap on Trial: Race, Lyrics, and Guilt in America (2019).

With the Fourth Amendment gone, eyes are on the First,
That’s why I’m spittin cyanide each and every verse

These lyrics from Paris’ 2003 album, Sonic Jihad, seemingly anticipate a future of curtailed free speech for African Americans. The growing practice of using rap lyrics against criminal defendants represents one way this is occurring in the United States today. In the song, the reference to the Fourth Amendment’s absence refers to policies that include aggressive stop and frisk campaigns, the proliferation of “no-knock” warrants, and police shootings of Blacks, among other afflictions. Simply living in a “high crime” area—what is often the hoods, ghettos, and barrios of the United States—is a factor that works to the detriment of the defendant when it comes to police establishing reasonable suspicion to stop, and possibly frisk, an individual. For Paris, this gutting of the Fourth Amendment has cleared space on the chopping block for free speech.

Rap on Trial: Race, Lyrics, and Guilt in America, by Erik Nielson and Andrea L. Dennis, explains how prosecutors use rap lyrics against criminal defendants at trials and sentencings. The book highlights a modern legal tactic that reads like a magic trick. In the hocus-pocus, a prosecutor introduces an author’s poetry into evidence against the author himself, in order to disappear the author into the criminal justice complex. Nielson and Dennis spill the secrets behind this trick, arguing that this “evidence” should be excluded under evidentiary rules. Using lyrics as evidence in this way is bewildering. It effectively treats the defendant’s lyrics as a biography for whatever purpose the prosecution needs. Even more mystifying is that a product of free speech, rap, is being used to curtail free speech itself, which has stark racial implications since the tactic focuses almost exclusively on minority defendants and a predominantly Black art form. Continue reading "The New Rap Sheet: Prosecuting Crimes, Chilling Free Speech"

Corporate Law Can No Longer Ignore Shareholder Heterogeneity

Ann M. Lipton, Shareholder Divorce Court, 44 J. Corp. L. 297 (2019).

The shareholder base of modern U.S. public companies is diverse. At one end of the spectrum are large asset managers like BlackRock, which by itself has almost $7 trillion in assets under management. At the far other end are ordinary people—so-called “retail” investors. And between these two ends lie a hodgepodge of institutions, including public pension funds, hedge funds, insurance companies, and university endowments. Should corporate law assume that these shareholders all share a common goal?

According to Professor Ann Lipton’s timely and clear-eyed article, Shareholder Divorce Court, the answer is an emphatic “no.” While corporate law has traditionally elided the messy reality of shareholder heterogeneity by assuming that all types of shareholders have the same interest—wealth maximization—the landscape has changed. But as courts in recent years have adjusted and accommodated shareholder preferences that deviate from wealth maximization, they have created a new problem: smaller, less diversified shareholders may now be forced to accept suboptimal transactions that are not designed to promote their interests. Lipton’s account is important. In making her case and exploring how the right of appraisal can be reconfigured to act as a remedy, Lipton excavates yet another consequence of Delaware’s newfound confidence in the efficacy of the shareholder franchise. Continue reading "Corporate Law Can No Longer Ignore Shareholder Heterogeneity"

Happiness in NewLaw—Assessing the Lifestyle Claims of Alternative Legal Practices in Australia

Margaret Thornton,Towards the Uberisation of Legal Practice, 1 Law, Technology and Humans 46 (2019).

Margaret Thornton’s work has had a defining role in the landscape of socio-legal scholarship in Australia and across the common law world for the last generation. She has long critiqued the neo-liberal turn of our major institutions (especially in the academy and legal profession) with an emphasis on profit maximisation. She coined the term “Benchmark Male” to capture a prevailing notion of an “ideal worker” with supposed attributes often unattainable for women and others struggling under the yoke of gendered roles and assumptions. In The Flexible Cyborg in 2016, Thornton described the results of her qualitative empirical work, which found that technology enabled “temporal flexibility dovetailed with the feminisation of labour in the late twentieth century” resulting in women lawyers simply doing more (full time work and domestic duty). Thus, she has long documented how an economy enabled by the uptake of technology has “colonised new sites” including the personal sphere. Her latest contribution, Towards the Uberisation of Legal Practice, is also concerned with working patterns and gendered effects but provides a more upbeat reflection on an aspect of modern legal practice driven (to an extent) by a desire for “being happy.”

Thornton bases her discussion on a relatively small, empirical project comprising of 38 interviews with Australian and English lawyers within “NewLaw” firms. However, the interviews were in-depth discussions, which ultimately generated rich insights concerning lawyer experience and opinion. By focusing on the process as well as the outcome of disruption of traditional legal career patterns and expectations, her project zeroed in on the following questions:

Why lawyers had left traditional practice, established a new firm or had chosen to become independent contractors, and what working flexibly mean for them, how comfortable they were with the technology and what measures were being undertaken to prevent work from encroaching on their private life. (P. 48.) Continue reading "Happiness in NewLaw—Assessing the Lifestyle Claims of Alternative Legal Practices in Australia"

I Am Altering The Deal. Pray I Don’t Alter It Any Further.

Shmuel I. Becher & Uri Benoliel, Sneak In Contracts: An Empirical Perspective, 55 Ga. L. Rev. __ (forthcoming), available on SSRN.

Have you ever created an account with Facebook, Amazon, Instagram, or Uber? If so, you agreed—with or without awareness—to let the company that drafted your contract a right to change that contract as they may see fit, without your consent. Shmuel Becher and Uri Benoliel’s empirical new study focuses on this practice, exposing a remarkable reality. With a focus on the central subset of digitally procured standard contracts, their study shows that 95.8% of the firms on their large sample (479 out of 500) have drafted “a change-of-terms clause that enables the firms to change the consumer agreement.” In 94.4% of the cases (472 out of 500), such clause explicitly allowed the drafting company to impose the change one-sidedly. Even to those who, like Margaret Radin, have long argued that standard contracts undermine people’s rights and the rule of law, the authors’ findings may offer a chilling update concerning the world of contracts. The patterns revealed in Sneak In Contracts seem to mimic a famous Star Wars scene in which Darth Vader orders to take the princess and the Wookie to his ship. As you may recall, when Lando protests the order and says it deviates from what was previously agreed, Vader forcefully answers: “I am altering the deal. Pray I don’t alter it any further.”

One of the central roles of contract law is to hold people responsible for duties they consented to assume by forming a contract. This is one of the main reasons for which, once a contract is formed, Anglo-American contract law limits the parties’ ability to change it. In general, even if both parties appear to have agreed to a modification of their original contract, the law would invalidate the alternation if one party coerced the other to consent by exploiting its permanent or temporary superior power. To this end, classical contract law has long required a new and separate consideration to support any change of the initial contract. This formal requirement’s rationale is that it demonstrates that the party that otherwise is not benefiting from the alteration received something in return to consenting rather than was forced to agree. Modern contract law added that a valid modification could be achieved even without supporting consideration if both parties had a reason to agree to the change due to new circumstances that called for it. Yet, modified contracts not supported by independent consideration would only be enforced in as much as the revised contract is also fair. Neither the classical nor the modern approach would have allowed drafting parties (or Darth Vader) to establish what is so thoroughly depicted by Becher and Benoliel: a practice that welcomes one-sided alternations of the deal. Continue reading "I Am Altering The Deal. Pray I Don’t Alter It Any Further."

Within the Labyrinth of the Law

Robert C. Post and Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, 130 Yale L. J. __ (forthcoming, 2020), available at SSRN.

It only takes two facing mirrors to build a labyrinth.”J.L.Borges

A labyrinth has no easily discernible path. It leads to frustration and wasted time on the part of the uninitiated, who find themselves foiled by twists, turns, and blocked escapes. We easily imagine the bellowing roars of frustration of the mythological beast, the Minotaur, trapped in his unlighted labyrinth on the Isle of Crete. When we encounter a labyrinth, what we need is a guide to lead us from frustration with the task to a possible solution. An image comes to mind of Ariadne, daughter of the King of Minos, who provided the knowledge and the tools to allow the (admittedly ungrateful) Theseus to escape the maze.

Professors Robert C. Post and Jennifer E. Rothman provide both guidance and solution to a labyrinthine problem in their forthcoming article, The First Amendment and the Right(s) of Publicity. That problem, as suggested by the article’s title, is accommodating the interests protected by the right of publicity with those protected by the First Amendment. Post and Rothman traverse the labyrinth created by existing doctrine from two directions. First, they clarify the varied and distinct interests that the right of publicity protects, or ideally should protect. If this were the article’s only contribution, it would be a tremendously valuable one, and judges and lawyers willing to accept their guidance could begin to construct coherent doctrine. But their second contribution is to point away from the “sea of inconsistent, vague, and unhelpful First Amendment tests” cluttering current doctrine toward more stable yet nuanced analysis. (P. 29.) Along the way, they even propose four new torts, and what’s not to love about new torts? Continue reading "Within the Labyrinth of the Law"

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