Yearly Archives: 2021
Sep 6, 2021 Christopher SloboginCriminal Law
Most scholarship about the impact of technology on policing has been of the sky-is-falling variety. The typical author recites a litany of technological advances, points out how those advances have made policing much more intrusive and pervasive, and then calls for a warrant requirement, some version of “privacy by design,” or perhaps even a prohibition on whatever surveillance technique is at issue. Maintenance of privacy is the main, if the not the dominant, goal.
In Smart Surveillance, Ric Simmons takes a completely different view. Adopting a cost-benefit analysis, he embraces technology that can make policing more efficient. The common scholarly refrain is that maximum Fourth Amendment protection must be imposed whenever technology gives the police a leg up—whenever, as the Supreme Court’s opinion in Carpenter v. United States put it when explaining why a warrant is required to obtain cell site tracking information, new technology makes enforcement efforts “remarkably easy, cheap, and efficient compared to traditional investigative tools.” To Professor Simmons, this stance makes no sense. Such thinking, he says, “turns the cost-benefit analysis on its head by seeking to deter some of the most productive searches available to law enforcement.” (P. 121.) Continue reading "The Costs of Privacy"
Sep 3, 2021 Maureen CarrollCourts Law
Kathryn A. Sabbeth and Jessica K. Steinberg,
The Gender of Gideon, 69
UCLA L. Rev. (forthcoming, 2022), available at
SSRN.
The civil and criminal justice systems are built on an adversarial model, but only in the criminal sphere does the defendant possess a constitutional right to representation at public expense. As a result, while representation is the default in criminal cases, more than three quarters of civil cases involve an unrepresented party.
That disconnect flows from the Supreme Court’s decisions in Gideon v. Wainwright and Lassiter v. Department of Social Services. Gideon held that the Constitution guarantees a right to counsel for a defendant facing imprisonment for a criminal offense, regardless of the nature of the crime or the length of the sentence. Lassiter held that the Constitution does not provide the same guarantee for a parent facing the termination of her legal relationship with her child.
What does any of that have to do with gender? Quite a bit, Kathryn Sabbeth and Jessica Steinberg explain in The Gender of Gideon. Continue reading "A Gendered Right to Counsel?"
Sep 2, 2021 Elizabeth PollmanCorporate Law
Corporate law readers: Do not let this excellent new work by Erika George escape your attention. It is a book focused on human rights. But make no mistake it is about corporations and it richly deserves a spot on your reading list.
The motivating problem in this area is relatively well understood: global human rights slip through the cracks of different regulatory regimes. As Professor George explains: “[C]orporate law fails to adequately address the external effects of the modern corporation and its relationship to society.” Further, “public international law fails to adequately govern the conduct of private nonstate actors.” Multinational corporations influence the ability of many millions of people to enjoy human rights, but these corporations are not currently understood to have the requisite international legal personality to become a party to an existing, binding international human rights treaty. Global competitive pressures discourage home and host states from adopting a level playing field with high standards. Efforts at creating a new, legally-binding international treaty to regulate business have been unsuccessful. The U.S. Supreme Court has narrowed access to courts under the Alien Tort Statute and litigation has proven an unreliable source for a remedy to human rights abuses. Continue reading "The Path Toward Corporate Accountability on Human Rights"
Sep 1, 2021 Robert HillmanContracts
Eric Goldman,
Content Moderation Remedies, __
Mich. Telecomm. & Tech. L. Rev. __ (forthcoming, 2021), available at
SSRN.
What are the appropriate remedies when Internet services, such as Twitter, Facebook, and YouTube, publish anti-social user content? Although regulators and analysts have pondered issues such as what constitutes offending content and who should decide the question, the issue of appropriate remedies needs development. This important question is the subject of an excellent article, Content Moderation Remedies, by Eric Goldman. Notwithstanding that the dominant strategy has been removal of the offending content, Goldman urges a more nuanced approach. He compiles useful and comprehensive examples of alternative remedies short of removal that Internet services already have employed and develops a helpful framework for determining when such remedies may be superior.
Content Moderation Remedies focuses on Internet services’ decisions on remedies, not on legal regulation. The article points out that although content may be illegal, Internet services most often are free from liability under Federal law. Services therefore enjoy some discretion in formulating appropriate remedies for offending content. Even if content is legal, services have discretion under their own house rules on how to deal with offensive material. Continue reading "Remedying Offensive Internet Conduct"
Aug 31, 2021 Ilya SominConstitutional Law
Over the last few months, President Joe Biden has granted Temporary Protected Status (TPS) to some 300,000 Venezuelans living in the United States and 100,000 Haitians. As a result, these people will be able to remain in the U.S. without fear of deportation for another 18 months. Once again, the fate of hundreds of thousands of people fleeing oppression, poverty, and violence turned on the will of a single man. Yet, important as they were, Biden’s TPS decisions attracted little public attention beyond the community of experts and others who follow immigration issues closely. That is in large part because we have grown so used to the idea that enormous swathes of immigration law and policy are under the control of the White House. The recent TPS decisions are just the latest manifestation of this trend.
Adam Cox and Cristina Rodríguez’s book The President and Immigration Law is likely to become the definitive work on the growth of executive power in this field. As they describe, the executive branch has come to wield vast discretionary power over immigration policy, even though nothing in the text or original meaning of the Constitution grants the president that power. At the time of the Founding, the dominant view was that the Constitution did not give the federal government any general power to exclude and deport immigrants at all, much less that such authority would come to rest in the hands of a single person and his subordinates. Continue reading "Perils of the Growth of Executive Power Over Immigration"
Aug 30, 2021 Christopher WalkerAdministrative Law
Emily S. Bremer,
The Rediscovered Stages of Agency Adjudication, 99
Wash. U. L. Rev. __ (forthcoming), available at
SSRN.
A couple years ago, Melissa Wasserman and I charted the new and old worlds of formal agency adjudication. The old world, we explained, consisted of the traditional formal adjudication framework under the Administrative Procedure Act (APA), with a trial-like hearing before an administrative law judge (ALJ). Drawing on the work of Michael Asimow, Kent Barnett, and others, we explained that the new world is more diverse and varied. Hearings do not take place just before the nearly 2,000 ALJs in the federal system, but also before more than 10,000 administrative judges, hearing officers, and examiners who are not governed by the APA’s formal provisions. We argued that, in both the old and new world, agency head final-decisionmaking authority remains the standard (and preferred) model—something the Supreme Court in United States v. Arthrex seemed to suggest may be constitutionally required earlier this year.
Another way to conceptualize the old and new worlds is that there is a type—or mode—of agency adjudication (Type B) between the APA’s “formal” (Type A) and “informal” (Type C) modes. In recent years, much scholarly inquiry has focused on the distinctions between Type A and Type B, including an entire issue of the Duke Law Journal. Despite this sustained attention, it turns out that our understanding of adjudication under the APA may be based on a historical misunderstanding. In The Rediscovered Stages of Agency Adjudication, Emily Bremer examines the historical record and concludes that, at the APA’s founding, “informal and formal adjudication were not viewed as alternative modes, but rather as consecutive stages.” It is not often that an article requires a field to fundamentally reconsider its foundations. Yet, Bremer’s Rediscovered Stages is such an article for administrative law (and agency adjudication in particular). Continue reading "Unearthing the Lost World of APA Adjudication"
Aug 23, 2021 JotwellJotwell
Jotwell is taking an abbreviated summer break of just a week. (As an experiment, instead of a two-week break now, we may take a week off for Spring Break in 2022.) We’ll be back on Monday, August 30. However, even while we’re on break, we’ll be accepting submissions, editing them, and updating various technical parts of the site.
Now that you know how much you miss us, this is good time to ask you to please help support Jotwell; your donation, however small, helps demonstrate the breadth of support for the enterprise.
If you like Jotwell, share — help us find more readers. Tell a friend about Jotwell. And if you are an academic reader, please consider recommending Jotwell to your students. We have a Jotwell Orientation Flyer for students that you can print out and post, or perhaps even hand out at Orientation.
See you in a week, when we start the new academic year.
Aug 20, 2021 Felix MormannLexEnergy Law
Madison Condon,
Externalities and the Common Owner, 95
Wash. L. Rev. 1 (2020), available at
SSRN.
At Chevron’s 2020 annual meeting, a majority of voting shareholders approved a resolution urging the oil giant to bring its lobbying efforts in line with the Paris Climate Agreement’s goal of limiting global warming to two degrees Celsius. What seemed like a pipe dream not long ago has become a fixture on Wall Street. Climate activism has emerged as a dominant theme at shareholder meetings in the energy sector and beyond, with some resolutions receiving nearly sixty percent of votes. In her excellent article, Externalities and the Common Owner, Professor Madison Condon draws on modern portfolio theory to offer an intriguing explanation for the changing tide in shareholder climate activism.
In recent years, concerned shareholders have garnered majority approval for resolutions calling for corporate emission reduction targets, better disclosure of climate risk, and suspension of lobbying against carbon regulation, among other climate action – often against the vocal opposition of the company’s own board. This surge in shareholder support for climate-related proposals is likely the product of a multitude of factors, including the growing sense of urgency surrounding global climate change. Professor Condon makes a compelling case that a key driver of shareholders’ newfound love for climate activism may be a paradigm shift in the approach of institutional investors to corporate governance. Continue reading "Deconstructing Shareholder Climate Activism: Why Institutional Investors Are Bullying Carbon Majors"
Aug 19, 2021 Aditi BagchiContracts
The last couple decades in Europe have been an exciting time for private law. European integration created a dazzling opportunity to articulate a distinctly European private law, potentially even overcoming the classic line between common and civil law.
As it happens, even before the departure of the United Kingdom from the European Union, this project failed in its more ambitious forms. Although legal convergence would fit the mandate to harmonize the common market, it turned out that there was substantial disagreement even within continental Europe about what a European private law should look like.
The quiescence of the convergence project has actually opened space for a less politically fraught and doctrinally constrained discussion of contract law in Europe. Delinked from the political will to integrate or constitutional constraints on what the basis for a common framework could be, the conversation has broadened to ask first order questions about the basis for contract law in Europe. That conversation just got a big theoretical boost from Martijn Hesselink. Continue reading "Let’s Have a Legitimacy Crisis about Contract Law"
Aug 18, 2021 Alexander Boni-SaenzTrusts & Estates
Felix B. Chang,
How Should Inheritance Law Remediate Inequality?, 97
Wash. L. Rev. __ (forthcoming, 2022), available at
SSRN.
In United States inheritance law, we typically listen to what the person with the money wants. In his provocative essay, How Should Inheritance Law Remediate Inequality?, Professor Felix Chang challenges this bedrock principle of freedom of disposition and proposes a new vision of inheritance law that centers intergenerational economic mobility instead. By linking trusts and estates to other fields, such as business and tax law, this piece raises a host of interesting questions about whether inheritance law can truly address societal wealth inequality.
Chang starts by tracing the twin histories of inheritance law scholarship and estate tax policy. He starts in the 1970s, when the estate tax was relatively expansive, and the seminal scholarship of Professor John Langbein was just taking off. Much of Langbein’s work concerns how to improve the inheritance law system by making it more faithful to testamentary intent. However, a lot has changed since the 1970s. The group Chang describes as The Repealers—a coalition of the ultra-rich, anti-tax activists, and Republican politicians—has largely been successful in significantly weakening the estate tax, as now a significant amount of intergenerational wealth escapes untaxed. At the same time, a new vein of critical legal scholarship has arisen in the legal academy. It is more concerned with questions of distribution and notably more skeptical about promoting testamentary intent, at least when it serves to promote dynastic wealth and tax evasion. Continue reading "A New Central Principle for Inheritance Law?"
