Yearly Archives: 2021
Nov 26, 2021 Matt BodieWork Law
Gali Racabi,
Abolish the Employer Prerogative, Unleash Work Law, 43
Berkley J. Emp. & Lab. L. __ (forthcoming), available at
SSRN.
What is an “employer,” and what can it do? And what role does law play in answering those questions? In this understated yet radical new piece—Abolish the Employer Prerogative, Unleash Work Law—Gali Racabi analyzes the law’s basic concepts for governing the workplace. Digging deep into the substratum of the law’s framework, he excavates the idea of the “employer prerogative”: namely, that the employer’s designated representatives have “the legal authority to make unilateral decisions in the workplace.” (P. 4.) Racabi’s simple proposal is to end this prerogative and consider alternative ways of allocating workplace power. His concept is both simple and staggering: a complete reorganization of the governance of firms within our economy.
Abolishing the Employer’s Prerogative is centered on a notion that is so much a part of our common cultural and economic understandings that it may even take a moment to realize what it is. Our economy delegates control over economic activity and decision-making to individual firms. Firms are a little hard to define, as they are economic (and not scientific) phenomena, but essentially they are the businesses that we work for, buy from, and contract with when engaging in our economic lives. We rely on firms to organize our behavior such that we can carry on extensive, long-lasting economic engagements within the rubric of a firm, rather than simply a market. The theory of the firm has proven a useful yet frustrating subfield of economics, as economic methodologies have not always proven suitable for the subtle, complex intricacies of interpersonal cooperation and competition that are contained within the firm. Continue reading "What If I Told You That Employer Power Is a Legal Construct"
Nov 25, 2021 Sarah WaldeckTrusts & Estates
In the Estates textbook I use, most of the will execution cases involve testators whose clear intent is unrealized because they bungled strict execution requirements. The Uniform Probate Code and the Restatement (Third) of Property: Wills and Other Donative Transfers—mainstays in any Estates class—are drafted to minimize the possibility of formal requirements interfering with testator intent. Reis Kress Weisbord and David Horton’s Inheritance Forgery is a counter-narrative that demonstrates how forgery remains a real and substantial risk of which the law must take account.
Weisbord and Horton argue that “counterfeit donative instruments are a serious problem.” (P. 855.) They focus on three donative transfers: wills, deeds, and life insurance beneficiary designations. To explore the prevalence of forged wills, the authors conduct empirical research in Alameda County, California. In a dataset consisting of every matter on the probate court’s docket in a one-year period, ten percent of will contests involved a forgery claim. (P. 876.) To document the forgery risk with deeds, the authors examine reported opinions since 2000, grand jury reports, and journalistic accounts of cases that were never litigated. As Weisbord and Horton explain, “these cases and stories share a common thread: deed forgers tend to prey on property that is owned by a decedent’s estate.” (P. 883.) To demonstrate that courts “routinely preside[] over claims that a life insurance form was falsified or fabricated,” the authors study reported opinions since 2000. (P. 889.) This empirical works reveals the extent to which forgery threatens the integrity of donative transfers. Continue reading "Don’t Forget About the Fakes"
Nov 24, 2021 John C.P. GoldbergTorts
Nicolas Cornell,
Looking and Seeing, in
New Conversations in Philosophy, Law & Politics (Ruth Chang & Amia Srinivasan eds., forthcoming), available at
SSRN.
1Ls are often taught that the tort of negligence differs from its counterpart in morality by not requiring blameworthy or culpable misconduct. As Holmes famously put it, whereas “the courts of Heaven” will make allowances for the defects of a “hasty and awkward” person, no such generosity is extended to defendants facing a negligence suit in a common law court. But is it correct to suppose that the moral wrong of negligence necessarily involves culpability or blame? In his marvelous essay Looking and Seeing, Professor Nico Cornell engages an array of recent work in the moral philosophy of negligence to argue, in effect, that Heaven’s courts are as demanding as their earthly counterparts.
Cornell begins with a discussion of Moore v. Dashiell, a run-of-the-mill, mid-twentieth century negligence suit. On a clear, dry day, Dashiell, driving his car, stopped to pick up two hitchhikers: Moore and a friend. Shortly thereafter, with Dashiell driving at a lawful speed on a straight and level road, the car struck a large mule. Moore was seriously injured and sued. At trial, Dashiell testified that, just before the collision, he was turning the dial on his car radio to find a station, but was looking at the road as he did. (There was no point in looking at the radio, he explained, because its markings did not accurately identify the wavelengths at which stations’ signals would be picked up.) He further testified that he saw two cars approaching from the other direction, but never saw the mule. Dashiell’s testimony notwithstanding, verdict was entered for Moore and the Maryland Supreme Court affirmed. Continue reading "Seeing Negligence for What It Is"
Nov 23, 2021 Tal ZarskyTechnology Law
The tension between the forces of nationalism and globalism has reached its peak with the United Kingdom’s decision to break with the European Union. This dramatic move continues to impact countless economic sectors and, more importantly, the lives of many citizens. Yet all is calm on the data protection front. The U.K. has decided to continue applying the E.U.’s strict GDPR. In this timely and intriguing article, Paul Schwartz strives to explain why this happened, as well predict what’s next for data protection and the British Isles.
GDPR is a four-letter word. Its strict rules and heavy fines have changed the world of data protection forever. Ninety-nine articles, one hundred and seventy-three recitals, thousands of pages of commentary, and the many millions of dollars spent preparing for it only tell us part of the story. Now that the U.K. can escape the grasp of this vast and overarching regulatory framework, why hasn’t it “checked out”? Rather, just a few days prior to Brexit, the U.K. adopted a local law which is almost identical to the GDPR. This outcome is especially surprising to me personally, as I have argued that the GDPR substantially encumbers innovation in the age of big data (although it is quite possible I was wrong). Continue reading "The Hotel California Effect: The Future of E.U. Data Protection Influence in the U.K."
Nov 22, 2021 Ezra RosserProperty
Michael Heller and James Salzman’s new book, Mine! How the Hidden Rules of Ownership Control Our Lives, is a dream come true for property professors.
I suspect that many of us have moments when we think to ourselves, “wow, this stuff is really interesting,” imagining that property law could somehow be of general interest. Too often that dream is killed when the eyes of non-lawyers, including family members, start to glaze over when they hear words like rule against perpetuities or trademark. Heller and Salzman have succeeded in making the stories property professors tell the stuff of a bestseller. They retell many of the standard classroom or analytical stories in a way that is both interesting to the general public and somehow worthy of broad discussion. Continue reading "The Dream of Property Professors"
Nov 19, 2021 Ezra RosserLexPoverty Law
Professor Tonya Brito’s in-depth examination of the pursuit of child support from poor fathers continues to pay significant dividends that extend well beyond family law. Producing Justice in Poor People’s Courts: Four Models of State Legal Actors highlights the that differing personalities and approaches can have on impoverished parents involved in child-support-enforcement disputes before the courts. Based on an impressive ethnographic study, Brito’s article shows how the actors involved craft stories about impoverished family dynamics as a way to make sense of their own role and complicity in an often unjust system of regulating poor families.
For professors who have written extensively about a particular issue over many years, part of the challenge is situating each new contribution without succumbing to the temptation and comfort of repetition. Producing Justice in Poor People’s Courts handles this challenge beautifully. Part I briefly introduces the problem of courts seeking enforcement of child support orders against poor noncustodial fathers. Low-income fathers are often subject to child support orders that fail to take into account their ability to pay, with the amount owed based on an assumption of the availability of minimum wage employment for individuals who may face significant employment barriers or even incarceration. The result is that many poor fathers become child support debtors, failing to make payments because of their poverty—not because of an unwillingness to provide such support. As Brito notes, these fathers are “deadbroke parents . . . rather than deadbeat parents.” (P. 153.) Continue reading "Court Personalities and Impoverished Parents"
Nov 18, 2021 Roger M. MichalskiCourts Law
Elizabeth Chamblee Burch & Margaret Williams,
Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd, __
Cornell L. Rev. __ (forthcoming 2022), available at
SSRN.
How should we measure the value of an article? Easy metrics come to mind: citation counts, the h-index, SSRN downloads, likes and retweets, etc. All reflect the pathogenic logic of YouTube and Instagram celebrityhood transposed to legal scholarship. We all know that. Yet many of us pour over top-10 lists of most-cited scholars in different fields, compare downloads, and fret when a forthcoming article in our area does not cite us. When the masters behind the tyranny of the U.S. News metrics flirted with including citation counts, more than a few corners of legal academy prepared to fall in line. Some perhaps a bit too eagerly.
How about other (anti-)metrics: humanity and compassion? A bit quaint, perhaps, too cute in a hardnosed data-driven world. But why not focus on meaningful markers of human flourishing?
Elizabeth Chamblee Burch and Margaret Williams’s new article would score high on both counts. Continue reading "In a Different Voice"
Nov 17, 2021 Carole SilverLegal Profession
For many—perhaps most—law students, law school is hard and stressful; legal practice is similarly experienced by many lawyers. The stress of these environments can act as an incubator for mental health problems, which often are buried by lawyers and law students, occasionally surfacing in stories of anxiety, substance abuse, addiction, depression and suicide, among other things. At the same time, however, law students report high levels of satisfaction with law school and their career decision, as do lawyers, which complicates understanding the mental health trend. This paradox calls for new thinking about mental illness in law school and the profession, which Kathryne Young’s article, Understanding the Social and Cognitive Processes in Law School That Create Unhealthy Lawyers (Understanding Unhealthy Lawyers), pursues. It offers a different lens for understanding these issues by directing attention to how the organizational policies and structure of legal education negatively impact law students’ well-being and, ultimately, their mental health.
Young is particularly well qualified to address this topic, having written a popular book on law student happiness (How to be Sort of Happy in Law School (2018)). But while the book is a how-to for students, Understanding Unhealthy Lawyers frames the wellness and mental health problem in relation to the organizational structure of law school, and invites law schools and faculty members to reconsider certain longstanding and widespread policies and practices in legal education. Continue reading "Rethinking Fundamentals? Law School and Mental Health"
Nov 16, 2021 Anders WalkerLegal History
Is capitalism good? A growing number of historians suggest no, particularly scholars affiliated with the New History of Capitalism, a trending field with close ties to Harvard and a deep interest in locating slavery at the center of the American experience. However, historian Woody Holton strums a more positive chord in his recent essay, “The Capitalist Constitution,” part of a larger anthology edited by Sven Beckert and Christine Desan styled American Capitalism: New Histories. Holton reminds us that the Framers’ anti-democratic interest in finance may not have been a bad thing, laying the foundations for a dynamic market economy that would propel the United States forward for the next two centuries.
Interested in the “actual motivations” that brought the founders to Philadelphia in 1787, Holton focuses on two compelling, if understudied concerns: an interest in preventing states from printing paper money and a related interest in preventing states from enacting legislation that impaired contracts. Both measures, on their face, seem rather obscure. Neither bore directly on the question of slavery. Nor did they relate to the reasons generally thought to have prompted the call for a robust, national Constitution: including the inadequacies generally associated with the Articles of Confederation. Continue reading "When Private Equity Serves the Public Good: Woody Holton’s “Capitalist Constitution”"
Nov 15, 2021 Gilberto MorbachJurisprudence
Gerald J. Postema,
Constitutional Norms—Erosion, Sabotage and Response, __
Ratio Juris__ (forthcoming, 2021), available at
SSRN.
How should we respond to the different challenges that threaten democracy and the rule of law today? To talk of we here, to state that a response is our response, is to understand that while “[t]he claim of an inclusive ‘ours’ may look like a pious fiction, . . . well-functioning democratic polities work to make it credible.” (P. 4.) This is part of what Gerald Postema takes a healthy constitutional democracy to be, in his discussion on Constitutional Norms—Erosion, Sabotage and Response. This is not rhetoric, but part of the argument itself: the very acknowledgment of new challenges to democracy and the rule of law as challenges is something that depends on what we what we take democracy and the rule of law to mean. After all, “unlike their predecessors, contemporary aspiring authoritarians pay striking attention to the forms of law.” (P. 1.) To be sure, strictly formal conceptions of democracy and legality do not necessarily entail approval of regimes that take the forms of law as mere tools for political power; but since our real-world classifications and labels ultimately hinge on the way we interpret these concepts, these thin conceptions can easily lead us to conclude that “illiberal democracies” are democracies nonetheless; that while we may dislike it, the striking attention of contemporary aspiring authoritarians to the forms of law suffice to show that the rule of law is morally neutral.
Professor Postema does not take the rule of law to be just a framework of general, public norms, nor does he take democracy to be a mode of delegating power to whoever wins more votes. His account of democracy is that of a constitution — a set of institutions by which power is constituted, exercised, constrained, and tempered, as Martin Krygier would put it — to be valued — and recognised as such — for its respect for deeper principles of political morality (not just instrumentally) and for the environment it upholds: an environment of reciprocity between citizens as co-members of a polity. In that sense, democracy properly so called is not only government through law; it is also government subject to law’s rule. This is why Professor Postema’s account of the rule of law is directly related. While the ideals of the rule of law and democracy are “conceptually distinct”, they are “functionally intertwined” — democracy so defined depends on the rule of law, on a conception of the rule of law by which it is, more than government through a system of rules derived from a rule of recognition, an ideal that promises “protection and recourse against the arbitrary exercise of power through the distinct instrumentalities of the law.” (P. 5.) Continue reading "Constitutional Norms And Law’s Rule: Responding To The Subversion Of Democracy"
