Yearly Archives: 2024
May 22, 2024 Michael YuTrusts & Estates
Goldburn Maynard & David Gamage,
Wage Enslavement: How the Tax System Holds Back Historically Disadvantaged Groups of Americans, 110
KY. L.J. 665 (2021-2022), available at
SSRN (Mar. 28, 2024).
In their article, Professors Goldburn Maynard and David Gamage call for reform of the U.S. tax system, specifically identifying the phenomenon of “wage enslavement” and then arguing that it is a “central injustice of our tax system.” (P. 691.) Professors Maynard and Gamage argue that the problem of wage enslavement should be recognized as central to the pursuit of tax justice and to the “deeply connected” pursuit of racial justice, and they further contend that only by addressing wage enslavement “can we effectively promote a more just future of shared prosperity for all Americans.” (P. 692.)
What is “wage enslavement”? The term, as Professors Maynard and Gamage use it, refers to the means whereby the existing tax system (“‘by heavily taxing wage and salary incomes, and only lightly taxing the returns to owning wealth’”) inhibits historically disadvantaged groups from building wealth or from catching up with historically more privileged groups. Such inhibiting effects then trap many members of historically disadvantaged groups into a cycle of dependence on tax-disfavored wage and salary incomes because of the difficulty they encounter in earning enough wages to cover all living expenses and, further, in starting to build wealth. (Pp. 666-67.) The Professors clarify, “Of course, by calling this phenomenon “wage enslavement,” we do not mean to imply that this is an injustice at anywhere near the level of true, literal slavery.” (P. 667.) Continue reading "Towards Tax and Racial and Equal Justice"
May 21, 2024 Maneesha DeckhaEquality
Equality and patent law may seem to make strange bedfellows. Convincing analyses exist though of how legal definitions related to science and innovation and patents themselves have fostered domestic inequalities as well as global health disparities. Concerns about the intra-human inequities that patent law produces are pressing ones. Still, in remaining anthropocentrically-bound by presuming that only humans can be inventors, these concerns miss the full scope of patent law’s inequality quotient. Laura A. Foster’s recent article Plants as Inventors: Interrogating Human Exceptionalism within Narratives of Law and Vegetal Life refreshingly takes up the inventive capacity of plants themselves as knowledge producers.
Foster seeks to correct her own human-focused examination of patent law’s role in elevating Western science at the expense of Indigenous knowledges in her 2017 book Reinventing Hoodia: Peoples, Plants and Patents in South Africa. With her 2023 article Plants as Inventors, Foster brings attention to plants, and patent law’s role in subordinating them, through telling stories about plants that pivot on the “binary logic of human exceptionalism” (P. 228). The article provides an engaging and instructive analysis inspired by what Foster terms “a vegetal feminist approach” (P. 229). Continue reading "Planting Equality"
May 20, 2024 Samuel ShawCriminal Law
Judges holding bail hearings in urban and suburban courthouses dispense “stranger justice.” All they know of the defendant before them is in the court file. For rural judges, it’s different. Enmeshed in a “density of acquaintanceships,” they’re likely to “have personal information external to the court record about many defendants … .” (P. 187). So far, so good: more information should lead to better-informed bail determinations. But the other side of the coin is that rural defendants have access to fewer bail administration services, like substance use counseling, monitoring, and bail bonding. More knowledge and fewer resources means that a rural judge might know exactly what a defendant needs to ensure their safe return to the community and subsequent appearance at trial – and yet be unable to provide it.
That is the core contention of Jordan Gross’s Pre-Trial Justice in Out-of-the-Way Places – Including Rural Communities in the Bail Reform Conversation. The article interrogates whether national frameworks for bail reform fit rural Montana communities. But quietly, it’s more ambitious than that. The article assesses the proposals of the Uniform Law Commission’s Pretrial Release and Detention Act (UPRDA) as applied to rural Montana. In the process, it reveals the frailty of “Uniform” anything in the context of bail reform. It also models a better way forward: courthouse-by-courthouse solutions sensitive to local conditions. Bail reform, we learn, is not generalizable. Gross’s approach holds promise for jurisdictions both urban and rural – but it will be resource-intensive. Continue reading "Localizing Bail Reform: Rural Montana and Beyond"
May 17, 2024 Adam N. SteinmanCourts Law
When it comes to Supreme Court decisions on standing, the hits keep coming. Whether you view “hits” in the Casey Kasem sense or the Joe Louis sense may depend on your perspective. It seems like only yesterday that I posted a Jot about standing, and the Court has not let up—with more big decisions (like Murthy v. Missouri and the mifepristone case) on the way before the current Term draws to a close in June.
William Baude and Samuel Bray’s excellent article is not just about standing. It also is about remedies and other aspects of the judicial role. They recognize, of course, the inextricable relationship between standing and remedies; one element of Article III standing is redressability, after all. And they acknowledge—as others have—legitimate questions about whether current standards “have been cashed out in exactly the right places,” including whether they “should not be in a doctrine called or conceptualized as Article III standing, but instead should be handled by rules about causes of action, equitable jurisdiction, various civil procedure doctrines, and so on.” For Baude and Bray, the guiding principle should be this: “federal courts should be deciding only cases between the proper parties that result in proper relief.” Continue reading "Standing, Still"
May 16, 2024 Robert RosenCorporate Law
Some data show that the recent significant increase in board diversity is less well explained by NASDAQ and CA regulations than by the Black Lives Matter Movement. How did the BLM Movement against police behavior become a call for racial justice that reverberated in corporate boardrooms? More generally why do CEOs, boards, and managers (members of what C. Wright Mills would call the “power elite”) pursue (or want to appear to be pursuing) ESG policies? This article answers such questions by identifying the increasing power of some of the millennial generation — those born between 1981-1996 — as consumers, employees, and investors.
As the authors show “Social issues can become financial problem in short order.” (P. 304.) Their examples are Black Lives Matter, Me-Too and Climate Change. If this article were written today, they might discuss the Governors of Florida or Texas and index funds value-diversifying their funds ( e. g. Catholic faith-based investors), with the consequent loss in the index fund’s concentrated voting power. As the authors admit, “current views on ESG are polarized.” There is conflict within the power elite. The Millennial Corporation: Strong Stakeholders, Weak Managers reveals strategies for getting ESG into corporate action. Continue reading "Conflict within the Power Elites: Intra-Elite Politics and ESG"
May 15, 2024 Nora Freeman EngstromTorts
It’s no secret that, in recent years, third party litigation funding has become something of a lightning rod. The Chamber of Commerce, some in Congress, and various states have sought to rein in a rapidly growing industry. In Opaque Capital and Mass-Tort Financing, Samir D. Parikh calls attention to a newfangled form of litigation financing in mass-tort cases, which, he believes, threatens to distort outcomes and “push victims further away from financial recovery.” (P. 32.) In so doing, Parikh helpfully reminds us that there is still much to be understood about new forms of funding before plunging into reform.
Before turning to Parikh’s argument, it’s helpful to start with a bit of background.Third-party litigation funding (sometimes called TPLF, alternative litigation funding, or ALF), is an umbrella term that refers to various lawsuit funding mechanisms. Three main flavors of funding fall under this broader umbrella. Continue reading "Shining a Light on “Opaque Capital”"
May 14, 2024 Hila KerenContracts
Hanoch Dagan & Catherine L. Fisk,
Independent Contractors and The ABCs of Contract Law, __ Ariz. L. Rev. __ (forthcoming 2024), available at
SSRN (Oct. 23, 2023).
The notorious 1905 Supreme Court decision in Lochner v. New York has become a symbol of a clash between the State’s wish to protect people from inadequate working conditions and the freedom of businesses and workers to use contracts to regulate their relationships. While the protective regulation of the work arena has since become more prevalent and has been approved time and again by a post-Lochner Supreme Court, businesses on the hiring side have never ceased attempting to evade these regulations by using contracts and insisting on their enforcement in the name of the freedom of contact. Is contract law truly the nemesis of fair labor? Must it undermine workers’ minimum legal protections against a long list of evils such as safety hazards, exhaustive hours, meager pay, and discrimination?
Hanoch Dagan and Catherine Fisk’s forthcoming Article, Independent Contractors and The ABCs of Contract Law, answers those questions with a rigorous “no.” The UC Berkeley co-authors have combined their expertise in labor law (Fisk) and contract law (Dagan) to provide a powerful critique of the conventional belief that their respective fields collide. Their collaboration presents a compelling and, I would add, hopeful reconstruction of the relationship between workers’ rights and contracts. Continue reading "On Preventing the Abuse of Contracts"
May 13, 2024 Kristina NiedringhausLexLibrarianship and Legal Technology
I usually avoid articles about generational differences because they too often veer into the “kids these days” territory. However, from her opening quote and introduction, I suspect that Prof. Schlinck and I have similar feelings about those types of articles. As she writes, “After all, if complaints about the younger generation’s “tyranniz[ing] their teachers” (referencing a quote from Plato, or someone) dates back to ancient Greece, then it may be time to see our students as occupying a glass half full.” (P. 272.) Prof. Schlinck’s article, OK, Zoomer: Teaching Legal Research to Gen Z, provides a brief explanation of generational theory before exploring aspects of Gen Z’s “peer personality.” She then translates those generational traits into pedagogical strategies for optimizing legal research instruction for today’s typical law student. While the suggested techniques are discussed in the context of research instruction, most of them can be extrapolated to other subjects and will be useful for teaching a variety of law school courses.
Prof. Schlinck’s article outlines ten pedagogical tactics that respond to the generational traits of Gen Z. Continue reading "Gen Z in the Legal Research Classroom"
May 10, 2024 Jack BeermannAdministrative Law
Did you ever wonder how it came to be that people suspected of immigration violations are subject to arrest without a judicially issued warrant? That executive branch immigration enforcement officers themselves have the authority to issue enforceable arrest warrants? And further, how it came to be that alleged immigration law violators can be held in prolonged detention without a probable cause hearing before a neutral magistrate of any kind?
When I first encountered this set of related issues, I quickly learned the conventional wisdom, that based on a longstanding tradition and Supreme Court approval, immigration law is an exception to the Fourth Amendment’s requirements that only judicial officers can issue arrest warrants and that in cases of warrantless arrest, the arrestee must be brought before a neutral judicial officer within a reasonable amount of time, normally not to exceed 48 hours. Professor Lindsay Nash’s excellent recent article Inventing Deportation Arrests reveals, through meticulous historical and doctrinal analysis, that the conventional understanding is built on shaky legal and historical ground and is subject to serious abuse. The article is very well written and enlightening on an important subject that I suspect has been somewhat opaque to most scholars of administrative law. Continue reading "The Dubious Validity of the System of Deportation Arrests"
May 9, 2024 Kerri Lynn StoneWork Law
I have always been intrigued by the adjudication of workplace retaliation claims by U.S. courts. The act of retaliation itself, and the myriad ways that it is accomplished, is interesting because it can be subtle, “served cold” (delayed), or barely perceptible. With that in mind, I recommend to you Daiquiri J. Steele’s Rationing Retaliation Claims. In this piece, Professor Steele thoughtfully takes on the issue of the U.S. Supreme Court’s “fear of opening the floodgates” of litigation when it comes to retaliation claims in the employment context. Professor Steele concludes that this fear is “overstated and misplaced,” a conclusion that I think is correct, and is also thoughtfully reached and well researched. This makes her piece a great contribution to the current discourse on this most important topic.
Professor Steele argues persuasively that rather than sounding the alarm when it comes to the uptick in retaliation claims filed by employees, we should be paying heed to them, as they are a sign of intra-organizational conflict. Significantly, Professor Steele notes, these claims are properly surging, because, as her research documents, the practice of retaliation is surging. Moreover, according to Professor Steele, “considerations of judicial economy are particularly misplaced in workplace retaliation cases,” because it is precisely the anti-retaliation statutory mechanisms and provisions that give civil rights statutes any teeth, so to speak, and enable plaintiffs to even think about coming forward to vindicate their rights without being intimidated. Continue reading "An Intelligent Call for a Mandate of Broad Judicial Construction When it Comes to Antiretaliation Claims"
