Yearly Archives: 2022
Sep 27, 2022 Gregory KeatingTorts
In Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory, Mark Geistfeld advances a powerful, and often persuasive, challenge to the negligence-centered conception of product lability law advanced by the Restatement (Third) of Torts: Products Liability (1998). In the courts, the Restatement (Third) has provoked controversy, but in the Academy it has become the prevailing orthodoxy. Section 402A of the Restatement (Second) stated a strict liability conception of product liability. The Restatement (Third) takes manufacturing defects to be subject to strict (enterprise) liability, but it asserts that design and warning defects should be governed exclusively by negligence norms. In Strict Products Liability 2.0, Professor Geistfeld sets out to vindicate the view—officially subscribed to by the majority of state courts today—that product liability law is strict and that its strictness extends to cover design as well as manufacturing defects. Whereas the Restatement (Third) sees the strict liability rhetoric of courts as a mere cover for the negligence conceptions that do the real work, Geistfeld argues that courts have been speaking warranty conceptions all along and these warranty conceptions construct a strict liability body of law. His thoughtful, deeply meditated, paper ought to awaken the Academy from its dogmatic slumbers.
For Geistfeld, the issue of the strictness of design defect liability turns on the role played by consumer expectations in determining design defectiveness. Section 402A of the Restatement (Second) had defined a product defect in part as “a condition not contemplated by the ultimate consumer”. In a comment, the Restatement (Second) explained that the product “must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Interpreting this language, many state courts had a adopted a “consumer expectation” test of product defectiveness, often in conjunction with a risk-utility test. In Barker v. Lull Engineering Co., for example, the California Supreme Court had articulated a products liability regime containing both risk-utility and consumer expectation tests of defective design. The Restatement (Third) rejects the “consumer expectation” test of product defectiveness “as an independent standard for judging” product design defects. In order to prove a product design defective, plaintiffs must show that the design fails a foresight-based “risk-utility” test. This requires proposing a “feasible alternative design” and proving both that this alternative design would have averted the harm to the plaintiff and that it balances product risks and benefits in a superior fashion. Continue reading "Should the Expectations of Consumers Matter?"
Sep 26, 2022 Steve VladeckCourts Law
There is almost nothing positive to say about the Supreme Court’s cryptic 2006 ruling in Purcell v. Gonzalez. In a short and unsigned ruling that styled itself as attempting to avoid the risks of election confusion, the Justices handed down a “principle” for how federal courts should behave in late-arising election cases: courts should generally refrain from changing the rules governing elections as Election Day approaches. The basic import of Purcell is to encourage trial courts to avoid enjoining election rules and procedures that they otherwise might if the election is nigh—and to encourage appellate courts to stay any such injunctions. Purcell is not an argument against the power of lower courts to provide remedies for unlawful election laws; rather, it is an argument against allowing injunctions of election laws to go into effect too close to elections.
At first blush, that principle seems plausible enough. Court orders—especially competing court orders—changing the rules in the run-up to Election Day can cause chaos, risking not just disenfranchisement of confused voters, but headaches for election officials tasked with administering an election and tallying results under shifting legal foundations. Indeed, perhaps the best defense of Purcell is that it was the Supreme Court’s attempt to introduce rigidity into an area in which the Justices believed that there is too much discretion—to tightly circumscribe the power of courts as Election Day approaches. But in the 16 years since Purcell was handed down, numerous problems have emerged with its “principle.” Continue reading "Purcell and the Terrible, Horrible, No Good, Very Bad Year"
Sep 23, 2022 Rebecca TushnetTechnology Law
“Half the money I spend on advertising is wasted; the trouble is I don’t know which half.” This statement is often attributed to retail mogul John Wanamaker. In his provocative new book, Subprime Attention Crisis: Advertising and the Time Bomb at the Heart of the Internet, Tim Hwang argues that online, Wanamaker’s statement is far too optimistic. This slim volume is packed with infuriating details about how the immense, opaque, and inescapable machinery of online advertising exists primarily to move massive amounts of money to intermediaries, many of them fraudulent or fraud-indifferent. The benefits to consumers and publishers have been minor and incidental; the harm to democracy has been severe.
Hwang argues that the current internet is built on a fundamentally flawed model of ad-supported content. He explains that there are no real checks on online advertising fraud; there are too many intermediaries for advertisers (or publishers) to police in any coherent way. Ad failure online is pervasive. A publisher may claim it displayed ads online but consumers nevertheless may not have seen it due to poor placement (such as at the bottom of the page). Hwang notes, “[i]n 2014, Google released a report suggesting that 56.1 percent of all ads displayed on the internet are never seen by a human.” (P. 81.) Even when real humans are involved, they may not be the actual audience for ads; Hwang cites research that up to 50 percent of all click-throughs on mobile devices may be the result of accidental “fat finger” clicks. (P. 79.) He also notes fraud estimates of up to $1 out of every $3 spent on digital advertising, including ads served to devices that were “not real phones at all, or … were phones running automated scripts, unseen by any actual members of the public.” (P. 85.) (This isn’t just phones; it seems to be a pervasive problem with all digital advertising, including digital TV ads.) Even with exculpatory contracts, some of these problems have spilled over into litigation. But litigation will never catch up with today’s problems, even if (implausibly) it provided a full remedy for past harms. Continue reading "Advertising Fraud: Is There No Alternative?"
Sep 22, 2022 Ezra RosserProperty
Professors Marc L. Roark and Lorna Fox O’Mahony’s article, Comparative Property Law and the Pandemic succeeds in bringing property theory and vulnerability theory into conversation and does so in a way that is likely to make vulnerability theory more palatable for property scholars.
Early on, Roark and Fox O’Mahony introduce readers to vulnerability theory. The basic idea of vulnerability theory is that vulnerability is an inherent part of the human condition and that the state should be active in providing people the tools they need to be resilient.
The theory is the brainchild of Professor Martha Fineman. Emory University School of Law’s vulnerability theory project, led by Fineman, regularly hosts or helps organize vulnerability-themed conferences around the world. Although Roark and Fox O’Mahony do not focus on this, by insisting on the universality of vulnerability and trying to break from of labels such as victim and oppressor, vulnerability theory is somewhat at odds with or at least awkwardly positioned next to race or identity-centered theories of the law and of history.
Comparative Property Law and the Pandemic deals with this by focusing less on vulnerability and more on its corollary, resilience. It is a smart move, allowing the authors to not get bogged down in defending vulnerability theory’s claim of universality and instead focus on the details of state responses to property challenges associated with the COVID crisis. Continue reading "Flexible Property Rights and the Resilient State"
Sep 21, 2022 Diane RingTax Law
Sofia Ranchordás,
Empathy in the Digital Administrative State, __
Duke L. J. __ (forthcoming 2022), available at
SSRN.
Government, no less than the private sector, experiences both the pressures and the allure of digital technology and automation. New technology offers the promise and possibility of delivering services more efficiently, rapidly, and maybe equitably. But there is a distinct risk that, at least for some members of society, this new future provides even less service and fairness than the analog past.
It is that risk, and how we might confront it, that drives Sofia Ranchordás’ new article, Empathy in the Digital Administrative State. Looking specifically at the administrative state and its vast systems of decision making, Ranchordás contends that not only is “empathy” crucial in maintaining democracy and ensuring a system of just and evidence-based adjudication, but that empathy is actually declining with increased digitalization. Moreover, this decline most seriously impacts society’s vulnerable citizens. In Empathy, Ranchordás outlines the challenges faced by the vulnerable engaging with a digital and automated bureaucracy, reviews the existing literature on empathy in public administration, and offers ex post and ex ante empathy-based recommendations for improving the administrative state. Continue reading "What We Lose with Digitalization and Automation of the Administrative State—and How to Get it Back"
Sep 20, 2022 Wendy Anne BachLexPoverty Law
Abolition is, as we have been well taught, at a minimum, a vision, a process, and a “theory of change.” (P. 867.) It is also crucially about power and resource allocation. Specifically, the transfer of power and resources away from those who have built institutions that reify white supremacy and to Black (and often intersectionally Brown, disabled, poor, Indigenous, Queer) communities subject to that institution’s violence. For academics and policymakers seeking to participate, one among many essential tasks is to attempt to step back and begin to understand how abolitionist praxis envisions change. This question is, at the very least, about who is in charge of change and how change happens. The who is clear. Change is led primarily by those most acutely subject to white supremacy’s violence. As to the how, abolitionists “recognize that the world may not change tomorrow; however, [they] also reject incrementalism that reinforces the status quo and entrenches oppressive cultures.” (P. 890.)
Visioning abolition and understanding the difference between reform proposals that would “reinforce the status quo and entrench oppressive cultures” and those that would be a step toward the vision were at the heart of a recent, groundbreaking symposium. Sponsored by the Columbia Journal of Race and the Law, Strengthened Bonds: Abolishing the Child Welfare System and Reenvisioning Child Well Being, marked the occasion of the twentieth anniversary of Dorothy Roberts’s Shattered Bonds: The Color of Child Welfare, by renaming the child welfare system as the family regulation, family policing or family destruction system (P. 883) and by calling for its abolition. The proceedings and papers are quite astounding and easily the subject of several entries in this particular, celebratory forum. But because I had to choose and because of the importance of understanding the vision, the specifics of abolitionist theories of change, and ways in which well-meaning professionals can get in the way of these goals, I feature a symposium piece that is beautiful, inspiring, and profoundly challenging: Ending the Family Death Penalty and Building a World We Deserve, co-authored by Ashley Albert, Tiheba Bain, Elizabeth Brico, Bishop Maria Dinkins, and Kelis Houston. My purpose here is simply to highlight some of what they share and to strongly encourage you to spend some time reading and reflecting on the article in full. Continue reading "On Divesting, Investing, and Critically Examining Help: Lessons from a Symposium Centering Abolition"
Sep 19, 2022 Elizabeth ChamblissLegal Profession
Do lawyers engage in racial discrimination in client selection? This is the primary question Brian Libgober asks in his article, Getting a Lawyer While Black: A Field Experiment. The article presents a series of field experiments testing private practitioners’ responses to emails from potential clients with Black- and white-sounding names. In the first experiment, based on a sample of 96 criminal lawyers in California, the response rate to emails from Black-sounding clients seeking DUI representation was 19%, compared to 40% for white-sounding clients. (P. 76.) The quality of lawyers’ responses also varied in response to the client race signal. For instance, in response to otherwise identical requests, “Brad McCarthy” received an email describing California law, how it applied to his case, and possible legal strategies, whereas “Darnell Jackson” received one that said only “who referred you?” and another that said “Call our office at XXX-XXX-4DUI for an appointment. YOU HAVE JUST TEN DAYS TO CHALLENGE YOUR SUSPENSION.” (P. 78.)
Though race was the primary factor of interest, the first experiment also found significant differences in lawyers’ responses to client gender, with men receiving 50% more responses than women (37.5% versus 23%) and white men receiving the highest percentage of responses (50%). (PP. 76-77.) Interestingly, signals about client income (around $40,000 versus $80,000) were not significant in the overall sample; however, signaling higher income was significantly harmful for women. The response rate for higher-income women was only 16%, tied for lowest with Black women and Black, lower-income clients. (P. 77.) These income effects are “hard to view as a rational response to incentives.” (P. 79.) The lawyers in the first sample were “mostly white and male.” (Pp. 77-78.) Continue reading "Darnell, Latoya, Brad, and Laurie: Lawyers’ Responses to Email Requests for Representation"
Sep 19, 2022 Elizabeth ChamblissLegal Profession
Do lawyers engage in racial discrimination in client selection? This is the primary question Brian Libgober asks in his article, Getting a Lawyer While Black: A Field Experiment. The article presents a series of field experiments testing private practitioners’ responses to emails from potential clients with Black- and white-sounding names. In the first experiment, based on a sample of 96 criminal lawyers in California, the response rate to emails from Black-sounding clients seeking DUI representation was 19%, compared to 40% for white-sounding clients. (P. 76.) The quality of lawyers’ responses also varied in response to the client race signal. For instance, in response to otherwise identical requests, “Brad McCarthy” received an email describing California law, how it applied to his case, and possible legal strategies, whereas “Darnell Jackson” received one that said only “who referred you?” and another that said “Call our office at XXX-XXX-4DUI for an appointment. YOU HAVE JUST TEN DAYS TO CHALLENGE YOUR SUSPENSION.” (P. 78.)
Though race was the primary factor of interest, the first experiment also found significant differences in lawyers’ responses to client gender, with men receiving 50% more responses than women (37.5% versus 23%) and white men receiving the highest percentage of responses (50%). (PP. 76-77.) Interestingly, signals about client income (around $40,000 versus $80,000) were not significant in the overall sample; however, signaling higher income was significantly harmful for women. The response rate for higher-income women was only 16%, tied for lowest with Black women and Black, lower-income clients. (P. 77.) These income effects are “hard to view as a rational response to incentives.” (P. 79.) The lawyers in the first sample were “mostly white and male.” (Pp. 77-78.) Continue reading "Darnell, Latoya, Brad, and Laurie: Lawyers’ Responses to Email Requests for Representation"
Sep 16, 2022 Reuel SchillerLegal History
I’m sitting at our kitchen table in Brooklyn. It’s the mid-1970s. I’m not sure how the subject of Pittsburgh’s air quality came up, but my mother, who I’m sure had never been to Pittsburgh, was quick with an anecdote. “Did you know that Breyers Ice Cream doesn’t sell its famous vanilla bean ice cream there? People won’t buy it because they think the flecks of vanilla are little particles of coal dust that have gotten in their ice cream.” My mother was a notorious fabulist, and a morning spent poking around the internet suggests that this story was made up. Nonetheless, it lodged in my ten-year-old brain, shaping my image not just of Pittsburgh, but of the entire rustbelt. Imagine my surprise, fifteen years later, when I spent ten days there as a paralegal for a giant New York law firm, reviewing documents in our client’s offices, high up in the U.S. Steel Building. Not only did the air quality seem fine, but the city had all the accoutrements of late-1980s yuppie affluence: attorneys bedecked in pink tailored shirts and absurd shoulder pads, valet dry cleaning, Au Bon Pains everywhere, and all those damn flourless chocolate tortes.
I have no doubt that Gabriel Winant, the author of The Next Shift: The Fall of Industry and the Rise of Health Care in Rust Belt America, would be able to guess the type of product our client produced. It was a pharmaceutical company. At the center of Winant’s fantastic book is the question suggested by my brief encounter with Pittsburgh: how did it change from the quintessential industrial city to one with an economy sustained by healthcare and all its associated businesses? Of course, lurking not far under the surface of that question is a more fundamental one. How did large swaths of the American economy move from high wage, unionized industries that grew the white middle class to service industries with polarized wage structures that have generated economic inequality, particularly along racial and gendered lines? Continue reading "Law and the Structure of the New Working Class"
Sep 15, 2022 Robin KarJurisprudence
Many philosophers of the private law could profit from a close read of a new article by Professor Larissa Katz entitled Equitable Remedies: Protecting “What We Have Coming to Us.” The article draws a distinction between “what is ours” (the content of which is defined by various bodies of private law like property and contract, according to Katz) and “what we have coming to us” (which is, roughly, what we would have if we were to have full access to what is ours, without obstruction, diversion, or expropriation from anyone with notice).
According to Katz, private law obligates parties to respect what is ours, in part by offering legal remedies that allow us to hold others accountable to pay for losses associated with their failures to meet those obligations. Private law gives us normative powers, which can help us define what is ours, thus helping us to plan our lives and exercise our liberties. There is, however, always a gap between what is ours and what we have coming to us because enjoyment of what is ours sometimes depends on how others act or exercise their normative powers. This gap cannot always be closed by standard legal remedies, insofar as they only compensate for losses. Professor Katz’s thesis is that many equitable remedies from diverse areas of private law can be understood in a unified manner as seeking to close that gap by preventing others (sometimes even third parties who are not subject to standard legal remedies) from obstructing, diverting, or expropriating what is ours, thereby protecting what we have coming to us. Continue reading "An Interest In What We Have Coming to Us"
