Monthly Archives: April 2021

An Early Warning on an Early Warning System: Avoiding Minority Report, Workplace Edition

James P. de Haan, Preventing #MeToo: Artificial Intelligence, the Law, and Prophylactics, 38 Minn. J. Law & Ineq. 69 (2020).

Increasingly sophisticated data analytics paired with machine learning is changing the world, and workplace applications are already a thriving industry. Over the last five years or so, legal scholars have increasingly explored the legal implications of these new technologies. Most of that work has focused on concerns related to privacy or discrimination, and quite a bit focuses on use of this technology in hiring. This focus only reaches part of the “people analytics” industry–it leaves out the application of predictive analytics to first analyze and then shape worker behavior and the working environment.

In Preventing #MeToo: Artificial Intelligence, the Law and Prophylactics, James P. de Haan tackles this kind of application of AI in the workplace by looking at how predictive analytics could be used to prevent harassment. It’s a great time to be thinking of this potential application for at least three reasons. The effects of the #MeToo movement have caused employers to pay more attention to preventing harassment, the technology appears to be soon in reach, and thinking about this application might help us think carefully about other ways AI might be used to shape worker behavior and the working environment. Continue reading "An Early Warning on an Early Warning System: Avoiding Minority Report, Workplace Edition"

Trust Law Secrets, Revealed

Mark J. Bennett & Adam S. Hofri-Winogradow, The Use of Trusts to Subvert the Law: An Analysis and CritiqueOxford J. of Legal Stud. (2021), available for free on SSRN as Against Subversion, a Contribution to the Normative Theory of Trust Law.

For those who pay attention to trust law developments, it’s clear that a vast transformation in trust law is taking place. American states like Wyoming, Alaska, Nevada, Delaware, and South Dakota are rewriting their laws to permit trusts that promise perpetual duration, maximum asset protection, and continued settlor control in order to compete with offshore jurisdictions for billions of dollars in trust business. Even for those who don’t usually take notice of trusts, trust law and the uses of the trust as a mechanism to create and perpetuate wealth inequality is becoming better understood. Katarina Pistor, for example, has aptly explained how trusts are “one of [the] most ingenious modules for coding capital” in Anglo-American law.  Moreover, economists like as Emmanuel Saez and Gabriel Zucman, have increasingly started to look at the roles of trusts in building a landscape of wealth inequality.

Into this conversation step Mark Bennett and Adam Hofri-Winogradow with their new article entitled, The Use of Trusts to Subvert the Law: An Analysis and Critique. Their aim is to widen the scope of the debate and inquire into what constitutes a proper normative theory of the trust. This type of inquiry has been fraught, the authors remark, in part because the normative nature of the trust is law-subverting – a poorly kept secret but one that nobody wants to discuss in polite company. Continue reading "Trust Law Secrets, Revealed"

Filling the Gaps in IIED

Alex B. Long, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, (Mar. 31, 2021) __ U. Ill. L. Rev. __ (forthcoming), available on SSRN.

The intentional infliction of emotional distress (IIED) is, in some ways, an outlier among the intentional torts. Most intentional torts are ancient, dating back centuries. By contrast, the original Restatement of Torts, published in the 1930s, did not recognize IIED; it first appeared in a supplement in 1948. More importantly, the intentional torts tend to focus on delineated forbidden conduct. The gist of battery is contact; of assault, it is apprehension; of false imprisonment, it is confinement. IIED is broader, vaguer than the other intentional torts. Although vagueness has the advantage of flexibility, it creates significant difficulties in application.

Alex Long’s recent article, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, provides concrete guidance on a specific and important fact pattern.

In spite of Title VII and other antidiscrimination statutes, discrimination and harassment in the workplace remain a problem. Long wants to use tort law to help. Mindful of courts’ reluctance to use the tort of IIED in the employment context, Long singles out a limited set of circumstances for liability. He argues that “courts should recognize retaliatory conduct as an especially weighty factor in deciding whether conduct is extreme and outrageous for purposes of IIED claims, particularly where it is coupled with discriminatory conduct.” (P. 4.) Long’s reasoning is partially instrumental; deterring retaliation would arguably incentivize people to complain about and, thus, reduce harassment. He focuses primarily, however, on the harm to the victim, using social science research to support his argument. Continue reading "Filling the Gaps in IIED"

Content Cartels and Their Discontents

evelyn douek, The Rise of Content Cartels, Knight First Amendment Inst. at Columbia Univ. (2020).

Content moderation is a high-stakes, high-volume game of tradeoffs. Platforms face difficult choices about how aggressively to enforce their policies. Too light a touch and they provide a home for pornographers, terrorists, harassers, infringers, and insurrectionists. Too heavy a hand and they stifle political discussion and give innocent users the boot. Little wonder that platforms have sometimes been eager to take any help they can get, even from their competitors.

evelyn douek’s The Rise of Content Cartels is a careful and thoughtful exploration of a difficult tradeoff in content-moderation policy: centralized versus distributed moderation. The major platforms have been quietly collaborating on a variety of moderation initiatives to develop consistent policies, coordinated responses, and shared databases of prohibited content. Sometimes they connect through nonprofit facilitators and clearinghouses, but increasingly they work directly with each other. douek’s essay offers an accessible description of the trend and an even-handed evaluation of both its promise and its perils. Continue reading "Content Cartels and Their Discontents"

The Shadow of Abortion

Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harvard L. Rev. 308 (2020).

In her insightful Comment on June Medical Services L.L.C. v. Russo1 in the Harvard Law Review’s Supreme Court Issue, Professor Melissa Murray uncovers the “complicated and constitutive relationship between the Court’s approach to stare decisis and its abortion-related jurisprudence.” (P. 312.) She shows not only that stare decisis principles structure the Court’s abortion jurisprudence, but also that conflict over the abortion right shapes the Court’s approach to stare decisis. In this sense, Murray persuasively demonstrates how abortion casts a long shadow over other bodies of law, not least of which is the trans-substantive question of stare decisis.

Murray’s perspective invites us to appreciate how the abortion conflict provides a template for other struggles, both inside and outside the courts. Without saying so explicitly, her analysis helps us to make sense of ongoing contestation over the meaning and reach of Obergefell v. Hodges,2 the Supreme Court’s 2015 landmark decision recognizing same-sex couples’ constitutional right to marry. Even as same-sex couples exercise the right to marry nationwide, opponents of LGBTQ equality are seeking to narrow and limit the decision’s reach—without asking the Court to expressly overrule it. They rely, often expressly, on the campaign against abortion rights as a model. Continue reading "The Shadow of Abortion"

Taking Theory Out of a Participatory Cul-De-Sac

Jeff Pojanowski, Reevaluating Legal Theory, 130 Yale L. J. 1300 (forthcoming, 2021), available at SSRN.

Reevaluating Legal Theory, by Jeff Pojanowski, is a review essay on Julie Dickson’s work on indirectly evaluative legal theory takes in her 2001 book, Evaluation and Legal Theory, and her subsequent writing on the topic. More than this, it situates Dickson’s work within wider jurisprudential debates, preceding and continuing after her contributions. The essay amounts to a detailed guide through the terrain of jurisprudential methodology, which is both informative and stimulating, both cautious and boldly innovative. The reader is invited on a journey to be undertaken with less than favourable weather conditions, taking place under the menacing clouds gathering from the positivist/anti-positivist conflict. The route has been selected not so much as to feature moments of breathtaking vistas, as to require the reader to trudge through disappointing locations which have not lived up to their proclaimed attractions. We have to confront a dead end, or cul-de-sac (Pp. 1300, 1306), as well as admitting to being on the road to nowhere. (P. 1324.) Disappointing as this may be, one has to admire the instructive commentary accompanying each mis-step along the journey. Ultimately, this prepares us for the promise of a brighter destination, which holds out the hope of delivering what previous stopping points have failed to deliver.

Pojanowski characterizes what Dickson has sought to achieve by her indirectly evaluative approach as a dilemma for her: in reconciling within a concept of law “features of law that are (a) necessary or essential to all legal systems, based on (b) what those subject to the legal system find important and significant about law (c) without imposing a morally evaluative filter on those important and significant theoretical necessities.” (P. 1313.) At the heart of this dilemma is the need to bridge the contingent, relativistic, or particularistic perceptions discoverable at (b) with the universal features required at (a). (Pp. 1315, 1320, 1307, 1322.) This is exacerbated by a tension, or even outright conflict, between the participant perception and the theorist perception of what features are significant at (b). (Pp. 1317 n.86, 1319, 1323, 1328.) There is no easy fix available to the theorist so as to be able to impose uniformity on the range of participant perceptions of those features. Continue reading "Taking Theory Out of a Participatory Cul-De-Sac"

Should the Rules Committees be Remade?

Brooke D. Coleman, #SoWhiteMostlyMale: Federal Procedural Rulemaking Committees, 68 UCLA L. Rev. Disc. 370 (2020).

Federal Rules Committees hold significant power. For example, a recent amendment to the Federal Rules of Civil Procedure that was approved by the Civil Rules Committee narrowed the scope of discovery—which of course, may affect the outcome of a case. In the rulemaking process, each Committee decides whether a proposed rule is considered and votes on whether to adopt it. While other bodies stand in the way of a rule becoming law (proposed amendments can be blocked by the Supreme Court or Congress), almost invariably a rule becomes law once a Committee adopts the rule.

This is why Professor Brooke Coleman’s article is so important. She analyzed all Committee memberships over its approximately 80-year history. She found 94% of the Committee membership has been white. 81% has been men. Perhaps the current Committees are much more representative, but Professor Coleman shows that is not the case. White people continue to constitute an inordinately high percentage of the committee at 92% and the Committees are largely male at 62%. Continue reading "Should the Rules Committees be Remade?"

Dynamism and Real Property Taxes, Who Knew?

Andrew T. Hayashi, Dynamic Property Taxes and Racial Gentrification (Dec. 23, 2020), available at SSRN.

In his article, Dynamic Property Taxes and Racial Gentrification, Professor Andrew Hayashi makes the compelling case that dynamic real property tax regimes, under which gentrifying neighborhoods are taxed at a lower rate than non-gentrifying neighborhoods, encourage racial gentrification and raise challenging, previously ignored, distributional questions. (P. 20.) To put it more plainly, dynamic property taxes are real property taxes that depend upon a property’s history of values so that two properties worth exactly the same amount today, could be taxed at different rates if the properties’ values evolved in different ways over time.

As an initial matter, Hayashi’s work makes a valuable contribution to understanding just what “gentrification” is and how it affects individuals and communities. Many years ago, I attended a meeting with a mixed group of law professors and planning professors. It was there, for the first time, that I became aware that in some corners of the academy, “gentrification” is a bad word and always a bad word. Continue reading "Dynamism and Real Property Taxes, Who Knew?"

From the Ivory Tower to the Judicial Trenches: Are We Bridging the Divide?

Most in legal academia would consider citation of their law review article in a judicial opinion an honor. However, most probably also remember Chief Justice Roberts’ 2011 comment that an article about “the influence of Immanuel Kant on evidentiary approaches in Eighteenth Century Bulgaria or something…isn’t of much help to the bar.” The Chief Justice’s comment may leave you wondering how often judicial opinions have cited law review articles and what factors might make your article into a rare unicorn. Mr. Detweiler answers these questions and more in May It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals.

Mr. Detweiler has compiled a list of state and federal court citations to legal academic journals from 1945-2018 and mapped them as a proportion of all reported opinions and by total number annually. He tracks the ebb and flow of citations through the years and makes interesting observations about what may influence increases and decreases in citation frequency. But he doesn’t stop there. His research then compares citation frequency from 1970-2018 of articles in Harvard Law Review and Yale Law Journal with flagship journals from sample schools in each tier of the U.S. News rankings. The article also includes a scan of the history of academic law journals, the first citations of journals, and the explosive growth of journals starting in the 1970s. Continue reading "From the Ivory Tower to the Judicial Trenches: Are We Bridging the Divide?"

Feeling Dirty: Emotional Taint and Use of Emotion as an English Criminal Barrister

In studies of the legal profession, we examine what lawyers do within and to the justice system in which they work in specific and conceptual ways. We also consider what the work does to lawyers. And, as many have noted, these two are intertwined and bi-directional. Clare Gumby and Anna Carline provide a fascinating perspective on this relationship by applying affect theory to the results of their interviews with criminal attorneys working on rape cases in England. The study reports on findings from 39 interviews with barristers1 from across England who defend or prosecute rape cases (the vast majority of whom regularly act in both capacities).

Gumby and Carline explain the theory they use to understand their results:

Affect is used to describe emotions (e.g., anger and fear) but also encompasses bodily sensations (e.g., shame, guilt and excitement) and other ineffable feelings and senses. These may be positive or negative, fleeting or sustained, experienced consciously and unconsciously and may sit outside of language in terms of being able to articulate. Here, we use affect theory, with its focus on relationality and embodiment, to understand how barristers can be transformed by their work and aim to move jurors—recognizing the body’s capacity to affect and be affected.

Defending or prosecuting in criminal prosecutions alleging sexual violence evokes emotions in us all. “Outsiders think all of it sounds pretty awful,” says one barrister. Sociological studies of occupations “that society views as unpleasant, disgusting or morally questionable” have been considered against a socially constructed idea of “dirty work.” Gumby and Carline adopt this lens to understand criminal lawyers’ construction of their own work. Specifically, they consider acting in rape cases as dirty work for its association with predominantly female victims as sexually tainted according to persistent gendered conceptions, working with those accused of socially stigmatised offending, combative adversarial styles and getting “physically dirty” where there is a necessity of proximity to “blood, semen and vomit and in the most extreme cases, death and decay.” Continue reading "Feeling Dirty: Emotional Taint and Use of Emotion as an English Criminal Barrister"

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