Monthly Archives: October 2021

Chevron Flip-Flops of a Different Sort — Understanding the Shifting Politics of Deference

Gregory A. Elinson & Jonathan S. Gould, The Politics of Deference, 75 Vand. L. Rev. ___ (forthcoming, 2022), available at SSRN.

Like vaccinations, voter fraud, guns, taking a knee, and, well, everything, views on Chevron deference have become not just ideologically tinged but ideologically determined. Progressives are Chevron enthusiasts; conservatives are Chevron skeptics. Chevron is under siege, and the battle lines are familiar. Yet, on its face, Chevron is politically neutral. It increases agency power at the expense of judicial power; whether that is politically helpful depends on whether your team controls the White House or if it controls the courts. Furthermore, the current ideological array has not always been the case. When Chevron was decided, the enthusiasts were on the right and the skeptics on the left. So what is going on?

In The Politics of Deference, Gregory Elinson and Jonathan Gould explain. They provide a richly documented descriptive account of the shifting politics of deference dating back to the 1970s. The shifts are what you would expect; the team that controls the White House likes deference, the team that controls the courts does not. Except . . . the pendulum did not swing when Donald Trump became president. Elinson and Gould describe why in fact deference does have a political valence and it makes sense that conservatives are skeptical and liberals supportive, regardless of who is in the White House. Continue reading "Chevron Flip-Flops of a Different Sort — Understanding the Shifting Politics of Deference"

Reconstructing Race?

Deepa Das Acevedo, (Im)mutable Race?, 116 Nw. U. L. Rev. Colloquy 88 (2021).

There’s quite a fraught history of racial “passing” in the United States, until recently almost always of African Americans passing as white. In the past several years, however, the possibility of “reverse passing” has grabbed the headlines as individuals identified at birth as white have claimed Black or other racial identities. Rachel Dolezal and Jessica Krug are familiar examples, but not the only ones. The common reaction is to cry fraud and view the individuals as acting for some kind of economic advantage, freeriders on what is sometimes called “racial capitalism.” Even absent that, such conduct necessarily entails cultural appropriation and may preempt opportunities of “real” members of the passed-for group.

It’s not surprising, therefore, that such conduct has been widely condemned, a result reinforced by the questionable motives and conduct of some reverse passers. But what if a white person truly self-identifies as Black? And what if an employer seeks to terminate her because she is not “really” Black? Continue reading "Reconstructing Race?"

Electronic Wills Are Just Like Paper Wills, Except When They’re Not

Adam J. Hirsch, Models of Electronic-Will Legislation, San Diego L. Stud. Res. Paper No. 21-014 (June 20, 2021), available at SSRN.

A conventional paper will must be in writing, signed by the testator, and signed by two witnesses. Statutes that authorize electronic wills (“e-wills”), by contrast, largely replicate the conventional will execution formalities in a digital format by giving legal effect to electronic documents that “are never reduced to paper.” (P. 164.) As of June 30, 2021, nine American states have enacted validating statutes for e-wills, and seven more states are considering e-will legislation. (Pp. 164, 165.) Currently, only one state, Oregon, expressly invalidates e-wills. (P. 166.) While American states are only recently beginning to address the validity of e-wills, certain foreign countries have had over two decades of experience with the concept. (P. 165.)

In Models of Electronic-Will Legislation, Professor Adam Jay Hirsch surveys the current landscape of e-will legislation in the United States and argues that states’ limited experience on the ground with e-wills renders the Uniform Law Commission’s approval in 2019 of the Uniform Electronic Wills Act (“Uniform Act”) premature. To enrich our understanding of the various options for validating e-wills, Professor Hirsch examines four competing legislative models that warrant policy and empirical analysis: (1) general validating statutes, such as the Uniform Act, which create general protocols for testators to formalize an e-will; (2) limited validating statutes, which are more limited designs for treating certain electronic records as an e-will; (3) emergency statutes, which validate only e-wills that serve a specific purpose, such as creating an estate plan during an emergency; and (4) remedial statutes, which validate e-wills that are otherwise not valid but are demonstrably intended as testamentary vehicles. (P. 165.) In thoroughly analyzing each legislative model, Professor Hirsch supports (among other things): (1) rejecting general validating legislation for e-wills because legislatures need time to develop substantive rules for e-wills, (2) enacting legislation explicitly proscribing e-wills, and (3) giving time to state legislatures to evaluate different models of e-will legislation, arguing that, because, among other things, there is currently little domestic experience with e-wills, the Uniform Electronic Wills Act is premature. (Pp. 206, 231-35.) This jot summarizes only some of the substantive rules discussed by Professor Hirsch and can only hint at the impressive depth and breadth of his analysis. Continue reading "Electronic Wills Are Just Like Paper Wills, Except When They’re Not"

Accountability and Addictive Wrongs

Nora Engstrom & Robert Rabin, Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, 73 Stan. L. Rev. 285 (2021).

In Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, Nora Engstrom and Robert Rabin set out to isolate the essential similarities and differences between the tobacco and opioids public health crises, and to extract lessons for future crises. In both the extent of the harm that they have done—and in their slow-motion train wreck extension across decades—both crises are vast. Indeed, they have lasted so long that they are part of the background noise of our lives. Yet, there is still shock value in Engsrom and Rabin’s short summaries of just how devastating these two crises have been—and still are. We all seem to have grown accustomed to appalling baseline levels of death and devastation. Engstrom and Rabin drive this point home simply and powerfully at the beginning of their fine article.

“Since 1999, opioids have claimed nearly 450,000 American lives, including nearly 50,000 in 2019 alone, dwarfing the carnage caused by either car crashes or gun violence. . .. Opioids are on track to claim the lives of another half-million Americans within the next decade. That’s like wiping out all of the men, women, and children in Atlanta in one fell swoop.” (P. 287.) Deaths “of course, only tell a sliver of the story. . . the lives of millions more are diminished and upended. Roughly, 2.1 million Americans suffer from an opioid-use disorder, over four million Americans misuse opioids each month, and an opiate dependent American child is born every fifteen minutes.” The economic costs of all this addiction and suffering are equally staggering; they are estimated to exceed “$500 billion annually, which works out to nearly 3% of U.S. gross domestic product.” (Pp. 287-88, emphasis in original.) Continue reading "Accountability and Addictive Wrongs"

The Law of AI

Michael Veale and Frederik Zuiderveen Borgesius, Demystifying the Draft EU Artificial Intelligence Act 22(4) Computer L. Rev. Int’l 97-112 (2021).

The question of whether new technology requires new law is central to the field of law and technology. From Frank Easterbrook’s “law of the horse” to Ryan Calo’s law of robotics, scholars have debated the what, why, and how of technological, social, and legal co-development and construction. Given how rarely lawmakers create new legal regimes around a particular technology, the EU’s proposed “AI Act” (Regulation of the European Parliament and of the Council Laying Down Harmonised Rules on Artificial Intelligence and Amending Certain Union Legislative Acts) should put tech-law scholars on high alert. Leaked early this spring and officially released in April 2021, the AI Act aims to establish a comprehensive European approach to AI risk-management and compliance, including bans on some AI systems.

In Demystifying the Draft EU Artificial Intelligence Act, Michael Veale and Frederik Zuiderveen Borgesius provide a helpful and evenhanded entrée into this “world-first attempt at horizontal regulation of AI systems.” One the one hand, they admire the Act’s “sensible” aspects, including its risk-based approach, prohibitions of certain systems, and attempts at establishing public transparency. On the other, they note its “severe weaknesses” including its reliance on “1980s product safety regulation” and “standardisation bodies with no fundamental rights experience.”. For U.S. (and EU!) readers looking for a thoughtful overview and contextualization of a complex and somewhat inscrutable new legal system, this Article brings much to the table at a relatively concise length. Continue reading "The Law of AI"

Change in International Tax

Ruth Mason, The 2021 Compromise, 172 Tax Notes Fed. 569 (2021), available at SSRN.

Only a fraction of tax law professors teach the course usually called “international tax.” For the rest of us teaching tax at a law school, the effort that technical competency in international tax requires is unsustainable, especially given the instability of that part of the law that most affects US multinational business. But every tax professor should understand at least a little bit about the ways that international tax law is changing. I recommend reading Ruth Mason’s work, most recently The 2021 Compromise, as a great way to gain competency regarding this evolution.

Mason’s goal in this piece is to contextualize recent developments in the OECD/G20’s BEPS project against the backdrop of her extensive prior work on the subject (see especially The Transformation of International Tax), and to put into perspective the changes currently underway in the international tax space. On July 1, 2021, 130 countries reached agreement in principle to Pillars 1 and 2 of the G20/OECD Base Erosion and Profits Shifting (BEPS) project. Pillar 1 concerns the allocation of taxing authority after the emergence of the digital economy and Pillar 2 is a proposal for a global minimum tax. This two-Pillar OECD project represents a second phase of the G20/OECD work on BEPS. Continue reading "Change in International Tax"

Rethinking the Fee Simple in Rural America

Jessica A. Shoemaker, Fee Simple Failures: Rural Landscapes and Race, 119 Mich. L. Rev. 1695 (2021).

Newly released census data reveals that our rural places continue to shrink. The recent Intergovernmental Panel on Climate Change (IPCC) report cements that climate change is widespread and intensifying. The pandemic has hit hard in rural places, with outbreaks centered around slaughterhouses, which predominantly employ people of color. At the same time, the country as a whole is reckoning with issues of racial justice.

All of these issues surface in Professor Jessica Shoemaker’s latest article, Fee Simple Failures: Rural Landscapes and Race. The article examines ways that property law has created and perpetuated serious problems with the rural agricultural land tenure system. Continue reading "Rethinking the Fee Simple in Rural America"

Recasting the Corporate Bias of Civil Procedure: A Neoliberal Theory

Luke Norris, Neoliberal Civil Procedure, 12 U. C. Irvine L. Rev. ___ (forthcoming, 2022), available at SSRN.

In discussing federal rulemaking, civil procedure teachers have long pointed out prevailing norms of impartiality and neutrality. But most understand that the promise of neutral rules, as applied, often falls short of these aspirational goals. This realization prompts students to think beyond case outcomes and to reflect on the interests that courts serve by their judicial decisions. Commentators have analyzed the Court’s embedded political preferences, centering on the Court’s pro-corporate and anti-plaintiff bias that denies access to justice and “closes the courthouse doors.”

In Neoliberal Civil Procedure, Luke Norris pursues this enquiry, setting forth a sophisticated explanation grounded in neoliberal economic theory. His general themes and conclusions are the same as the “access to justice” crowd: that the way in which the Court has interpreted procedural rules has placed barriers to citizens seeking to vindicate rights in civil litigation. Norris endeavors to move the discussion beyond the simple incantation that the Court is pro-corporate and anti-plaintiff. Instead, Norris explains how neoliberalism has become a prevailing model in the Court’s application of procedural rules. Continue reading "Recasting the Corporate Bias of Civil Procedure: A Neoliberal Theory"

Accidental Equality

Structural forces, including workplace organization and policies, are a documented cause of inequality. These forces disproportionately burden and therefore contribute to the underrepresentation of women and lawyers of color in positions of power and influence, systematically reproducing the male, Caucasian hierarchy atop BigLaw’s equity partners. The lingering impact of these structural forces—counteracting the effectiveness of diversity, inclusiveness, and equity initiatives—has been a problem for BigLaw leadership for years. But what if, contrary to conventional wisdom, structural forces can instead increase—or at least not disadvantage—equality? In Accidental Feminism, winner of the American Sociological Association’s Distinguished Book Award from the Sociology of Law Section, University of California at Irvine law professor Swethaa Ballakrishnen explores this very intriguing question.

Presenting original empirical work collected in 2011-15, Ballakrishnen documents how, without adopting well-intentioned equality policies, India’s elite large law firms have become “accidental” feminist organizations featuring gender parity in their senior and equity partner ranks. According to the book, this surprising development was the result of a confluence of circumstances, “structural conditions that fortuitously have come together to create environments of emancipation for . . . women lawyers.” (P. 2.) First is organizational novelty: India’s elite law firms are, relatively speaking, young institutions, relying on a neoliberal attorney workforce educated in progressive law schools. Thus both the lawyers and the law firms are comparatively open-minded, even supportive of gender equality in the workplace. The second condition is globalization complete with an influx of capital and increased international demand for Indian legal services. Third and relatedly, accidental feminism depends on a receptive interactional global audience – India’s BigLaw are locally organized institutions doing work for global entity clients. Fourth, these conditions are all taking place in a particular cultural moment of close-knit family units and a caste-dependent labor force, which supplies women (and men) equity partners with affordable housework and childcare support system. Hence, Ballakrishnen establishes that India’s BigLaw’s feminism was accidental but not random. Continue reading "Accidental Equality"

Fighting Racism in Travel and Transportation

Mia Bay’s fantastic new book, Traveling Black, is both a richly detailed history of travel and transportation from the late nineteenth century to the 1960s that centers the experiences of Black travelers, and a deeply researched history of resistance to discrimination that brings to light those travelers’ active and ongoing efforts to demand equal treatment.

Bay keeps the focus on Black travelers throughout, explaining in granular detail all of the ways in which one’s experience of travel depended on one’s race. The first several chapters each focus on a single form of travel—railroad, car, bus, and airline. In each chapter, Bay offers detailed descriptions of how formal and informal restrictions imposed by white lawmakers and business owners affected where and how Black travelers were able to ride, drive, wait, eat, drink and sleep. One notable strength of Traveling Black is Bay’s ability to tell a national story about multiple kinds of transportation while also directing readers’ attention to how the “complex pastiche of law and custom created racial rules that were too inconsistent to be easily followed—or endured.” (P. 8.) Practices differed by region, by state, and by city. Some of the discrimination, segregation, and exclusion she describes was a matter of individual discretion or business practice or local custom. Airlines, for example, created “a variety of unobtrusive approaches to discouraging Black passengers—which never ended up in court.” (P. 210.) In other areas these practices were supported by formal laws requiring segregation and empowering transportation workers as enforcement agents. Continue reading "Fighting Racism in Travel and Transportation"

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