Yearly Archives: 2024
Nov 18, 2024 Shawn BayernContracts
Yonathan A. Arbel,
The Readability of Contracts: Big Data Analysis, 21
J. Empirical Legal Stud. __ (forthcoming, 2024), available at
SSRN (Jan. 01, 2023).
Probably all law professors, even textualists, have experienced frustrations with overly rigid applications of supposed rules about language. For example, they’ve encountered editors who require that all contractions be spelled out or replace every instance of the word “like” with “such as” regardless of whether the substitution makes sense in context. Editing like that serves formalistic assumptions about the readability and professionalism of text and usually rests on various “myths” or outdated conceptions about language. Similarly, many professors, even formalists, have encountered and been frustrated by institutional “metrics” that reduce rich, substantive endeavors (like education) to rigid and formalistic abstractions (“learning outcomes” or test scores).
In a critique at least broadly sensitive to the same kinds of frustrations, Yonathan Arbel’s recent draft article, The Readability of Contracts: Big Data Analysis, studies the Plain Language Movement, which has influenced language in such documents as consumer contracts and medical disclosures. Professor Arbel’s legal focus in the draft is on consumer contracts, and his point is not, of course, that language in consumer contracts should be unreadable. Instead, it is a sharp critique—backed both with analytical insight and with significant data—against formalized metrics of notions like readability. Continue reading "Consumer Contracts Have Many Problems, but “Readability” May Not Be One"
Nov 15, 2024 Tom C.W. LinCorporate Law
Many businesses today are subjected to a myriad of regulations. In order to ensure compliance with the large and dynamic bodies of federal, state, and local rules, many businesses create internal policies and systems to facilitate adherence to the law. However, such policies and systems exist in a dynamic marketplace filled with resource constraints and other business considerations. So, how do corporate managers construct internal compliance policies for their firms? What rules and regulations do they prioritize? How do they design internal systems to reflect the realities of law and enforcement?
In a recent article, Strategic Compliance, Professor Geeyoung Min offers a sharp and insightful perspective on these questions and more. Through an astute and deep analysis of a hand-collected dataset of corporate policies on insider trading and related party transactions from companies making up the Standard and Poor’s (S&P) 500 index, Professor Min reveals the policy customizations that occur at the firm level. Specifically, she reveals how firms customize internal policies on insider trading and related party transaction, oscillating between stringency and leniency. These revelations illuminate, inform, and interrupt conventional understandings about corporate compliance and internal policies. Continue reading "Compliance and Strategic Corporate Policies"
Nov 14, 2024 Deepa Das AcevedoWork Law
Yiran Zhang,
Home as Non-Workplace, __
B.U. L. Rev. __ (forthcoming), available at
SSRN (Mar. 11, 2024).
Everyone reading this jot likely has a story about how the home/office divide collapsed for them in 2020. (I have several.) But even among work law scholars, there aren’t too many of us who do more than periodically gripe about the divide’s demise. (I don’t.)
To be sure, we all understand that domestic labor is undervalued, underpaid, and insufficiently protected. But what about domestic space? Specifically, what about domestic space that is no longer, or no longer only, domestic? Yiran Zhang’s forthcoming article, Home as Non-Workplace, gives us a timely and comprehensive way to think about the home/office divide and what it does, could, and should mean for work regulation. Continue reading "This Place is My Workplace… This Place is Your Workplace…"
Nov 13, 2024 Kent D. SchenkelTrusts & Estates
Brian Galle, David Gamage & Darien Shanske,
Money Moves: Taxing the Wealthy at the State Level, 112
Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (January 14, 2024).
Polls show that a majority of Americans believe that inequality is increasing, and that taxes should be raised on the very wealthy. But income tax rates on high earners remain historically low, and estate planning techniques that minimize the reach of federal transfer taxes proliferate. What about state-level taxation? Conventional wisdom holds that progressive state tax regimes backfire by triggering wealth flight to low-tax jurisdictions, leading many states to stick with regressive sales and property taxes. But the consequences of progressive state tax policy are misunderstood, and states have many options, write Brian Galle, David Gamage and Darien Shanske, in their comprehensive, informative and practical article, Money Moves: Taxing the Wealthy at the State Level.
The tax theory of “fiscal federalism” holds that only the federal government should impose progressive taxes to fund government benefits. Fiscal federalists argue that if individual states undertook to create progressive tax regimes, the wealthy would just relocate to other states, creating “horizontal externalities.” Therefore, the federal government has put in place its more progressive income tax, which enables it to return tax revenues to the states in the form of grants or other types of revenue sharing. Continue reading "Practical Considerations for State Taxation of Wealth"
Nov 12, 2024 Sandy SteelTorts
In his excellent book, Egalitarian Digital Privacy: Image-Based Abuse and Beyond, Tsachi Keren-Paz defends a number of interesting and provocative claims about the liability of persons in relation to the distribution and viewing of intimate images whose dissemination and in some cases, production, is non-consensual, such as revenge porn. As with Keren-Paz’s other work, the book is characterised by an engagement with foundational issues in tort law – causation, fault v strict liability, positive duties – and a detailed tracing through of the implications of theoretical positions on those issues for an important social problem.
The book’s primary concern is the liability of internet intermediaries – mainly, hosts and search engines – and viewers in relation to wrongful image-based content. I focus here (to the exclusion of the book’s rich discussion of several other issues) on the book’s treatment of three foundational matters raised by such cases: (1) the extent to which intermediaries ought to have positive duties to remove content that amounts to a violation of the victim’s privacy rights, (2) the causal problems that arise in relation to claims for image-based harm that is massively overdetermined, (3) the standard of liability for claims against viewers and others. Continue reading "Rethinking Digital Privacy in Tort"
Nov 11, 2024 Rebecca TushnetTechnology Law
Sometimes, it’s the small details that hobble even the most easily explained policies. When California decided to expunge felony records for marijuana offenses, relief for former felons was hampered by a lack of comprehensive recordkeeping and reliance on proactive individual action (the expungement wasn’t automatic; you had to ask for it). These and similar stumbling blocks can be weaponized by opponents, as occurred with the restoration of voting rights to felons in Florida. It’s a technological spin on the well-known legislator’s warning, “If I let you write the substance and you let me write the procedure, I’ll screw you every time.”
In Recoding America, Jennifer Pahlka makes the argument that there doesn’t even have to be a bad guy on the procedure side for this to happen. This is a book by a technocrat with a persuasive argument for a measure of technocracy: America’s ways of lawmaking could be greatly improved by borrowing from the project management concept of agile development, which allows people lower in the hierarchy to make consequential decisions rather than being burdened by having all the rules have to be specified in advance. The latter, “waterfall” development, can lead to deadly (sometimes literally) complexity and policy failure. When policy is too rococo and reticulated, such as having nine different definitions of a “group” of doctors for Medicare purposes, throwing money at the problem rarely helps. Neither does outsourcing and oversight, both of which Pahlka believes can help when properly deployed but often end up generating more layers of bureaucracy. Continue reading "Fixing the US Code"
Nov 8, 2024 Charlotte CraneTax Law
Alex Zhang,
Fiscal Citizenship and Taxpayer Privacy, __
Colum. L. Rev. __ (forthcoming 2025), available at
SSRN (April 2, 2024).
In Fiscal Citizenship and Taxpayer Privacy, forthcoming in the Columbia Law Review, Alex Zhang explores ways of thinking about the effects of the disclosure of individual income tax returns. Disclosure of information about individual tax liabilities is one of those topics that won’t ever go away. Even if no imaginable contemporary Congress would reinstate a requirement that information about individual tax liabilities be publicly available, it is well worth thinking about the circumstances in which disclosure would be justified. After all, most state property tax systems include disclosure not just of the values subject to tax, but of taxpayer compliance. And, as Zhang describes, such disclosure was on more than one occasion a part of the administration of the federal income tax. Especially in light of this history, it is worth exploring whether an income tax—especially the individual income tax—should be so different.
The consensus answer seems to be that the intrusion on individual taxpayer privacy cannot be justified by the possibility of enhanced compliance, especially when research indicates that the impact of disclosure on compliance is ambiguous. Zhang’s critique of this response rests on the idea that increased knowledge of the way taxpayers—especially wealthy taxpayers—interact with the income tax system is the key to a more democratic and egalitarian tax system and therefore a more democratic and egalitarian fiscal polity. Continue reading "Disclosing Tax Data: Maybe the Rich Are Different"
Nov 7, 2024 Roger M. MichalskiCourts Law
Alexandra D. Lahav, Peter Siegelman, Charlotte Alexander, & Nathan Dahlberg,
No Adjudication (July 29, 2024), available at
SSRN.
Much has been written about the inaccessibility of court data. State courts are a mixed bag, but most state dockets are difficult to study. Tribal courts are even more heterogenous. The federal system provides reasonable top-level data but makes large-n studies of litigation activity tricky and costly. Commercial solutions are often pricey, incomplete, or both. The dearth of good data has been a massive impediment to the “democratization” of empirical studies in civil procedure. Scholars without significant research budgets or special connections have been stymied from answering the many empirical questions we all have about the day-to-day work of courts.
It is in this context that No Adjudication shines. Many civil procedure teachers have a sense of how many cases terminate early and without much fuss. Few can offer more than anecdotes when students inquire about specifics. No Adjudication fills that gap in important ways. Continue reading "Democratizing Dockets"
Nov 6, 2024 Sarah SchindlerProperty
In recent years, some states have attempted to address the U.S. housing crisis by pulling certain aspects of zoning control that affect housing supply away from local governments. In a few states, this preemption focuses on eliminating or limiting single-family zoning, while in others it more narrowly eliminates limits on accessory dwelling units (“ADUs”). State preemption has shown some promise (and also faced some legal challenges). Some land use scholars have questioned whether changing zoning laws is enough to address housing supply and affordability because much single family housing in the U.S. is within neighborhoods that are governed by covenants, conditions, and restrictions (“CC&Rs”). Those CC&Rs often mirror or go further than the local zoning code when it comes to restrictions on density, height, and residential use.
Ken Stahl’s new article addresses this concern head-on using examples from California which has both preempted local zoning and begun to limit or override certain CC&Rs. Stahl considers whether property owners have a viable claim under the Fifth Amendment Takings Clause when the state overrides CC&Rs so that owners can no longer rely on or enforce these restrictive covenants. Continue reading "States May do Away with Single Family Zoning, But What About the Covenants?"
Nov 5, 2024 Wendy Anne BachLexPoverty Law
For those who care about the scope and effectiveness of America’s federal safety net, the last two years have been disappointing. To be frank, it’s always been disappointing, but this time we were naïve enough to get our hopes up. In the wake of the pandemic we saw, and loudly celebrated, significant expansions and reforms. Even more loudly, we touted the harms prevented, and the surely incontrovertible good that resulted for poor families and poor children and called for many of those reforms to become permanent. First among many, in this category, was the brief restructuring and expansion of Child Tax Credit, which significantly broadened both the size and reach of this benefit, reducing child poverty down to historic lows. That change, along with significant expansions to unemployment benefits, Medicaid, and housing and food assistance, dramatically altered and expanded the reach of the federal safety net. There were flaws, mistakes, and holes no doubt, but overall, the extent and effect of assistance reform was breathtaking. Despite the clear positive effect of these policies and despite significant political investment by center/left policy organizations and the Biden administration, in large part attempts to make these changes permanent failed.
The authors of the article celebrated in this jot, Andrew Hammond, Ariel Jurow Kleiman and Gabriel Scheffler, have written previously in 2020 in How the Covid-19 Pandemic Has and Should Reshape the American Safety Net. In their latest piece, the authors engage in a crucial post-mortem analysis, and identify and propose a potentially highly effective solution to a key post-failure question: “the next time there is an opportunity to strengthen anti-poverty programs, what should Congress do?” Their answer, while perhaps not as lofty as the sweeping vision of those who hoped that the pandemic reforms would translate into a far broader and more universally-oriented system of support, provides a workable, effective, responsive and, potentially more resilient set of mechanisms for reform the next time opportunity calls. Continue reading "Rethinking Federal Strategy After Disappointment"
