Yearly Archives: 2020
When enacted in 2008 at the end of the Bush Administration, the Genetic Information Nondiscrimination Act (GINA) seemed like it had come from the future. Although the hard-won result of over a decade of advocacy by Rep. Louise Slaughter of New York, GINA addressed a problem that seemed more hypothetical than real. Genetic testing had been around for a while, introduced to the public in part through the O.J. Simpson trial. It seemed unlikely, though, that employers or insurers would not only secure DNA testing but then use it to discriminate on the basis of genetic difference. Yes, it made sense as a plot for a science-fiction movie like Gattaca, but not as a depiction of current reality.
This assessment is largely borne out in the empirical results in GINA, Big Data, and the Future of Employment Privacy by Bradley Areheart and Jessica Roberts. Examining GINA cases from federal courts during the statute’s first decade of existence, Areheart and Roberts found a mere 48 unique GINA cases, only 26 of which involved terminations. Moreover, most plaintiffs failed to find relief, often losing because of fundamental flaws: they had voluntarily disclosed their genetic information; they could not prove the employer possessed the genetic information; or their information was not considered “genetic.” In fact, the authors “uncovered no cases alleging discrimination based on genetic-test results.” (P. 744.) The article makes a plausible case that GINA has been a failure—or, perhaps more charitably, addressed a nonexistent problem. Continue reading "The Unexpected Virtue of Congressional Ignorance"
In my experience, the hallmark of a good article is that, after struggling through a few close reads, I eventually (at times somewhat begrudgingly) conclude I learned something new and valuable. The hallmark of a great article, on the other hand, is when I reach the same conclusion but after a single, almost effortless feeling, read. The difference is a precision and clarity in writing, structure, and organization that only the confidence instilled from a deep understanding of a subject affords. Yet at the same time a small part thinks to myself – “it seems so obvious, why didn’t I think of it?” But of course, to paraphrase a famous movie line, “if I really had come up with the idea, then I would have written it.” But, as I eventually admit to myself, I didn’t.
Such was my experience reading When Data Comes Home: Next Steps in International Taxation’s Information Revolution (“When Data Comes Home”) by Shu-Yi Oei and Diane Ring. Oei and Ring are frequent co-authors, writing on subjects ranging from taxation of the sharing economy like Uber and AirBnB, to the role of large scale financial information leaks like the Panama Papers, to the impact of the Tax Cuts and Jobs Act on reshaping the workplace environment. I mention this only to emphasize what emerges as the particular strength of Oei and Ring’s collaborations – they combine backgrounds and methodologies and apply them to areas of common interest to uncover patterns or trends that otherwise might remain hidden. When Data Comes Home represents another successful example. Continue reading "Big Data and Small Politics: What is the Future of International Tax Law?"
Bridget J. Crawford, Blockchain Wills
, 95 Ind. L.J.
735 (2020), available at SSRN
Disruptive technologies, like the Internet, often drive new social and organizational arrangements: we now enjoy global interconnectedness and an ease of communication that was previously the stuff of speculative fiction. Blockchain technology has the potential to be similarly transformative, with the Wall Street Journal characterizing blockchain as a foundational technology along the lines of electricity or the world wide web. Bitcoin was created in 2009 as a decentralized, immutable, open source method of peer-to-peer payment that uses a distributed ledger to track all transactions—and this process of recording transactions is what is known as “the blockchain.” Although blockchain technology has been bought into common parlance through its association with popular cryptocurrencies such as Bitcoin, the potential application and broad appeal of blockchain technology eclipses the purpose for which it was originally developed. Blockchain Wills by Bridget J. Crawford tackles the subject of blockchain technology as applied to will execution in an article that is unquestionably my favorite article of 2020.
The best analogy to describe blockchain is that of the tree in the forest. Every ring in the trunk of the tree is like a groove in a record and each groove memorializes important information: the age of the tree; water levels; disasters such as forest fires; rate of growth. Each ring evidences a new block of information related to a specific moment in time, and the information recorded on each ring is accessible and transparent because nobody owns the tree. Like the rings of a tree, a block on the blockchain is immutable. An earlier block is only changed through a later block. The information in each block is simultaneously public and private—the details of a transaction are recorded on the blockchain but the identity of each user is protected with a private key. The blockchain is transparent while also offering security and privacy. One may arguably have complete trust in a system that has removed human error from its process, with each transaction verified through a distributed network and the need for no intermediaries. Continue reading "The Disruptive Potential of Blockchain in the Law of Wills"
Martha Finnemore and Duncan B. Hollis, Beyond Naming and Shaming: Accusations and International Law in Cybersecurity
, Eur. J. Int’l L.
(forthcoming, 2020), available at SSRN
In recent years, states have begun accusing other states of cyberattacks with some frequency. Just in the past few months, Canada, the United Kingdom, and the United States have warned of Russian intelligence services targeting COVID-19 vaccine development, the United States issued an alert about North Korea robbing banks via remote access, and U.S. prosecutors indicted hackers linked to China’s Ministry of State Security for stealing intellectual property.
The flurry of cyberattack attributions raises questions about what effects (if any) they have and what effects the attributors intend them to have. In their forthcoming article “Beyond Naming and Shaming: Accusations and International Law in Cybersecurity,” Martha Finnemore and Duncan Hollis offer a nuanced set of answers focused, as the title suggests, on moving beyond the idea that the attributions are just intended to name and shame states. Continue reading "Cyberattacks, Accusations, and the Making of International Law"
Zoning has long-been regarded as quintessentially a local matter. And, states usually defer to local governments believing that they have better information about local conditions, preferences, and practices. In his article, Professor Elmendorf shows how those preferences and powers often operate to undermine state interests, particularly in ensuring housing opportunities for all its needy residents.
In July 2020, President Donald Trump thrust the issue of zoning for housing on the national scene when he proudly announced: “I am happy to inform all of the people living their Suburban Lifestyle Dream that you will no longer be bothered or financially hurt by having low income housing built in your neighborhood.” The announcement came after the Department of Housing and Urban Development repealed the “Affirmatively Furthering Fair Housing” (“AFFH”) mandate, adopted by former President Obama, in fulfillment of the aims of the Fair Housing Act of 1968. Continue reading "Controlling the Locals from the Top Down and the Bottom Up for Housing"
Jonathan F. Harris, Unconscionability in Contracting for Worker Training
, 72 Ala. L. Rev.
__ (forthcoming, 2021), available at SSRN
During the 2020 coronavirus pandemic, many firms turned to remote and computer assisted arrangements to get work done remotely and safely. During the summer, however, jobless claims rose as the economy took a downturn. These economic pressures have driven many workers to seek job training or even re-training to protect themselves from the worst of the recession. Out of desperation, some workers are turning to code academies or bootcamps to learn new skills, while existing employers have in some instances started charging workers for the cost of new training.
In his forthcoming article, Unconscionability in Contracting for Worker Training, Jonathan Harris explores the contractual issues that arise when workers or job applicants are asked to pay for their training outside of traditional educational structures. This could arise through a training repayment agreement (TRA), which requires an existing employee to repay the employer a fixed sum expended on training if the worker quits or is fired during a set period of time. This Jot, however, will focus on the other setting in which these non-traditional training arrangements are arising, and which Harris discusses at some length in the second part of his article. These are the so-called Income Sharing Agreements (ISAs), which for-profit code academies use. ISAs are contracts that require the trainee to repay a set percentage of future income in exchange for the tuition that enables them to attend a computer coding academy or bootcamp. Continue reading "Income Sharing Arrangements and Coding Bootcamps: Boom or Bust for the Blue Collar Breadwinner?"
The New White Flight makes two significant contributions to our understanding of race and education. First, it argues that white parents chose to send their children to segregated, disproportionately white schools. This choice is reflected in white residential preferences for areas where “pricing-out mechanisms” ensure that the local school is disproportionately white. (P. 254.) This racially-motivated choice holds “even when school quality is controlled for, meaning that whites tend to choose predominately white schools even when presented with the choice of a more integrated school that is of good academic quality.” (P. 236.) Second, it shows how charter schools give white parents a way to act on their preference for majority white schools even within school districts where only minority of students are white. Charter schools and other school choice programs, by enabling white parents to act on their general preference to avoid schools that are predominantly Black or Latino, facilitate the creation and maintenance of “white charter school enclaves” within larger diverse school districts. (P. 262.)
It would be tempting to write off both contributions with a yawn. A cynic might ask what is new about white parents wanting white schools and school choice enabling educational segregation? That, after all, is the story of how white parents reacted to Brown v. Board of Education. But by forcefully insisting that segregated education today is a result of white parents choosing to avoid predominantly Black schools, Professor Wilson challenges race-neutral explanations for why whites prefer disproportionately white schools. And by laying out the ways charter schools, through their regulatory framework as well as their educational philosophies, cater to white parents seeking to send their kids to disproportionately white schools, Professor Wilson shows the negative consequences of educational choice programs. Ultimately, the article is an eye-opening and sobering look at how the choices of white families further educational inequality at a societal level and even within school districts. It is a valuable read for anyone interested in poverty law, education policy, and property law, but the audience that could most benefit from the article arguably are well-educated urban white parents. Continue reading "White Parents Searching for White Public Schools"
Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb, Supreme Court Practice
(11th ed. 2019).
Seventy years ago, Robert L. Stern and Eugene Gressman published the first edition of Supreme Court Practice, intended “to set forth in a single volume . . . as close as possible to everything, outside of the field of substantive law, that a lawyer would want to know in handling a case in the Supreme Court.” For generations, the treatise (known most commonly as “Stern and Gressman”) was an indispensable staple on every Supreme Court practitioner’s bookshelf (and, rumor has it, the bookshelves of more than a few Justices). The new and improved eleventh edition—published late last year and authored by the late Stephen M. Shapiro (to whom it is dedicated), Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb—drives home why: For an institution governed as much by formal and informal norms as it is by rules and statutes (for instance, the settled—but unwritten—understanding that it takes four Justices to grant a writ of certiorari), an accurate, accessible guide to both the written and unwritten rules of the road was an obvious necessity.
More than that, the authors of SCP were (and remain) in an open and behind-the-scenes dialogue with the Supreme Court Clerk’s Office and the Justices themselves. Questions raised in earlier editions have provoked formal and informal rule changes at the Court, and the editions, in turn, have attempted to keep up with formal and informal developments at One First Street. Indeed, a cursory search for citations to the treatise in reported Supreme Court opinions returns 90 hits, from 1957 to this summer. Simply put, SCP has become more than just a practitioner’s guide; it has become a font of institutional knowledge for an institution that is, notoriously, anything but transparent. And it is a one-stop shop for those trying to figure out all kinds of arcane but potentially significant historical tidbits—such as the last time a Justice heard oral argument in chambers (“apparently” in 1980). In that sense, SCPhas become a necessity for students and scholars of the Court as well. Continue reading "Bringing the Supreme Court Out of the Shadows"
In Regulating Mass Prosecution, Irene Joe seeks to shift the framework for assessing the causes of and solutions to mass incarceration, by spotlighting the role of prosecutors and their ethical duties to maintain fairness, loyalty, and competence. The core thrust of Joe’s argument is that prosecutors should be understood to have ethical limits on the pursuit of charges against defendants based on the systemic impact of charging decisions in producing public defender case overload. Moving beyond well-rehearsed arguments about the prosecutor’s duty to seek “justice,” Joe adopts a systematic ethical approach, focusing on the “role that the prosecutor plays in creating” the caseload crisis (P. 1183). She thereby makes a novel link between the ethics of prosecution and that of public defense, illuminating the “cumulative effect that . . . discretionary charging decisions have on the public defender’s ability to provide ethical and professional representation.” (P. 1184.) Having made this link, she then turns to the ethics rules as “a sword and a shield for reformist prosecutors to use in addressing the caseload crisis in indigent defense.” (P. 1184.)
In her ethics analysis, Joe is mindful of the deeply complex nature of the prosecutor’s charging decision: an exercise of discretion in which the prosecutor determines to pursue charges supported by probable cause. As Joe points out, in making this decision, a prosecutor is generally motivated to act by the duty to advance the interests of justice, but other factors sometimes creep in, such as implicit bias or the prosecutor’s self-interest in achieving a high “win” rate or currying favor with the judge. Where Joe fundamentally departs from convention is by showing how individual charging decisions permit prosecutors to shape “the size and scope of the criminal justice system,” thereby placing the public defender in a “reactive” posture, unable to adequately control his or her caseload—and thus undermining defendants’ access to justice. Joe recognizes, of course, that prosecutors do not deal exclusively with public defenders, whose work focuses on the representation of indigent defendants constitutionally entitled to counsel. What Joe wants us to appreciate is that prosecutorial discretion, by affecting the aggregate number of cases in the system, has particular impacts on the caseloads of public defenders, who must take cases assigned to them in this expanding system and are heavily overburdened. Continue reading "Are Prosecutors Ethically Responsible for Producing Defender Overload?"
Anyone who has done archival research has grappled with someone else’s file organization—are the papers you seek filed chronologically? By correspondent? By topic? By some other method inscrutable to the outsider? Does the filing system reflect the thinking of your research subject, of a secretary or clerk, or of a later archivist seeking to impose order on chaos? Finally, will the files actually contain the documents you’re hoping to find? Two recent articles take seriously the prosaic technologies of file storage, on the one hand, and file destruction, on the other, explicating the history of the tabbed file folder, the filing cabinet, and the paper shredder. These technologies are crucial to the contemporaneous operation of the bureaucratic process, and, of course, silently shape how we write history from those files.
Craig Robertson’s article, Granular Certainty, The Vertical Filing Cabinet, and the Transformation of Files, examines the role that the tabbed file folder and the file cabinet played in organizing and enabling modern corporate capitalism. As Robertson notes, scholars thinking about bureaucracy and influenced by Max Weber have long considered the development of the circulating case file to be a key moment in bureaucratization. Here, Robertson focuses on how the specific mechanics of the file storage process—office workers collecting loose documents in a file folder, securely storing the folder in a vertical cabinet, and later quickly finding that folder among dozens or hundreds of other ones—contributed not just to business efficiency but also to a conception of “information” as many discrete units rather than as a body of knowledge. Continue reading "What Do We Do with All of This Paper?"