Mar 23, 2022 Linda C. McClainFamily Law
In 1960, Mary (“Polly”) Ingraham Bunting, newly-appointed President of Radcliffe College, wrote an essay for The New York Times Magazine to encourage applications to the new Radcliffe Institute for Independent Study. In the essay, Bunting connected the Institute’s goal of ending the “waste of highly talented, educated womanpower” to helping women as well as to better realizing America’s “heritage” and “aspirations.” The Institute would help “intellectually displaced women”—mothers whose homemaking and childcare responsibilities had interrupted their careers—get back on track through a financial stipend of up to $3,000, access to Harvard’s library resources, a private office, and formal and informal exchange.
As Maggie Doherty recounts in her engaging book, The Equivalents: A Story of Art, Female Friendship, and Liberation in the 1960s, Bunting, a microbiologist and educator, first conceived this “messy experiment” in “a national war room populated almost entirely by men”: she served on a Cold War-era committee formed by the National Science Foundation after the Soviet Union’s launch of Sputnik to study education in the U.S. and steer more resources and students into science and engineering. (Pp. 58-59.) Publicity for the Institute echoed Cold War rhetoric about the national risk of not utilizing women’s talents, but also stressed the risk to families and marriages: “This sense of stagnation can become a malignant factor even in the best of marriages . . . when the gifted woman must spend her time inventing ways to employ herself mentally and failing, or only half-succeeding, may turn against the marriage itself in sheer frustration.” (P. 68.) If this rhetoric brings to mind Betty Friedan’s famous articulation of “the problem that has no name,” in The Feminine Mystique, it may be because Bunting and Friedan initially planned to collaborate on the book. However, the collaboration ended because Bunting resisted Friedan’s approach of viewing the dynamic “in terms of men against women,” instead of (as Bunting perceived it) a “climate of unexpectation” about women’s roles “in which both men and women were trapped”: that women could not have both family and career so that any pursuit of intellectual goals would be at a cost to their personal lives. (Pp. 63, 65.) Bunting viewed the Institute as a way to change that climate. (P. 63.) Continue reading "An Institute of One’s Own: Polly Bunting’s “Messy Experiment” of Helping Women Navigate Work-Family Conflict"
Mar 22, 2022 Nora Freeman EngstromTorts
Most believe that tort law, at its root, is about dollars and cents. The defendant pays; the plaintiff pockets a specified sum. It is through this financial transfer that tort law’s broader aims—deterrence and compensation—are achieved. Yet, in Information for the Common Good in Mass Torts, recently published as part of the twenty-sixth annual Clifford Symposium, Elizabeth Chamblee Burch and Alexandra D. Lahav complicate that simple story. In the piece, Burch and Lahav argue that, besides damages, tort law very often involves the transfer of something just as valuable if less quantifiable: information.
To see tort litigation as a source of information is to see tort through a different lens. Seen through this lens, in fact, much of what we know—or think we know—about what tort law does or how it works becomes subject to reexamination. Continue reading "Facilitating the Information-Forcing Function of Tort Law"
Mar 21, 2022 Seth EndoCourts Law
Edith Beerdsen,
Discovery Culture (Mar. 14, 2022), available at
SSRN.
Discovery drives U.S. civil litigation but rarely grabs the public’s attention. Recent high-profile cases offer exceptions to this rule. In 2022, MyPillow CEO Mike Lindell’s refusal to participate in the discovery process in the $1.3 billion defamation claim brought against him by Dominion Voting System made national news. A few months earlier, Remington Arms garnered major media coverage after it produced thousands of cartoons, emojis, and other seemingly irrelevant images in response to a document request in the lawsuit brought by ten families of victims in the Sandy Hook shooting tragedy. These aggressively unlawful discovery machinations might simply demonstrate disregard for the rule of law in these contentious times. But civil discovery’s time in the shadows also might embolden parties’ misbehavior.
In Discovery Culture, Edith Beerdsen argues that discovery is primarily an extralegal practice governed by the informal norms of the legal community, which can explain Lindell and Remington’s behavior and more. Beerdsen explores this phenomenon and how it interacts with formal legal authorities to influence parties’ decisions about what discovery requests are reasonable, when to cooperate, and when to seek the court’s intervention. Beerdsen’s descriptive and theoretical accounts of how discovery functions greatly add to the study of American civil litigation. Continue reading "“Order Without Law” in Discovery"
Mar 14, 2022 A. Michael FroomkinJotwell
Having taken an abbreviated winter break, we’re awarding ourselves a compensatory week off in Spring. Who doesn’t want a Spring Break in Miami?
I and the Jotwell Student Editors — Claire Chatellier, Bridget Dye, and Allison M Paquin — wish our readers in and outside Ukraine safety and good health. Posting will resume on March 21st. See you then!
Mar 11, 2022 Sonia LawrenceEquality
I have found teaching and researching through the pandemic difficult. That is a radical understatement. The pressure to normalize—to work normally, in particular—through what has been happening has come from many sides. So has support, care, compassion and understanding. As a scholar of equality, it seemed obvious both that the pandemic would have differential effects which would exacerbate existing inequalities, and that this would be a useful place for me to concentrate. But concentrating was the problem, and as time wore on it became clear that it might not serve as a solution.
The article that I’m recommending, The University Cannot Love You: Gendered Labour, Burnout and the Covid-19 Pivot to Digital, is one that centres the world of the university and the people that work in that space, asking about what was happening in these spaces. It centres not the idea of equality but the idea of care. It is not legal scholarship. But I think that it offers two things that some legal scholars of equality might deeply value right now. The first is a way to think about the situation we are in. The second is a way that we might reframe or rethink some of the perennial problems of equality law, the public/private divide, the work/life divide, the ways that we divide and differentially burden people. Continue reading "Broken Jars: Academic Labour and Care in COVID Times"
Mar 10, 2022 Jonathan SimonCriminal Law
Benjamin Levin, Criminal Justice Expertise, 90 Fordham L. Rev. __ (forthcoming 2022).
Much of Benjamin Levin’s prolific work in recent years is concerned with what might be called the history of the criminal justice present; understanding the many intellectual and activist currents that are shaping the remarkable current moment when criminal justice reform in many states is happening (although in fits and starts) and claims of abolition not heard in a generation are also being raised. In Criminal Justice Expertise, perhaps his most intellectually venturesome work, Levin steps back from the frontlines of emerging law (topics like “wage theft,” “mens rea reform,” and “progressive prosecutors”) to look at the nature of expertise about criminal law and justice as it figures in debates about criminal justice reform. In doing so, I believe Levin helps many of us thinking and acting in this space to locate ourselves in ways more enabling of cooperating and conflict (when necessary).
For a long time, one of the dominant strains in criminal justice reform scholarship from academics has argued for a more administrative law model of criminal law in which the power of police, prosecutors, and prison administrations would be subjected to greater procedural transparency and scrutiny by expert analysis of objective data. This expert reform logic, sometimes referred to today as “evidence based criminal justice reform,” relates to an even more seasoned narrative about mass incarceration, that described it as a product of the success of a politicized punitive populism over an earlier consensus behind expert-based rule over criminal justice (David Garland’s The Culture of Control: Crime and Social Order in Contemporary Society 2001 is perhaps the most influential version of this account). Continue reading "The Politics of Penal Expertise"
Mar 9, 2022 Caroline BradleyCorporate Law
The valuation of a shareholder’s interest in a corporation is a central issue in corporate law. In recent cases the Delaware courts have responded to appraisal arbitrage by limiting recovery in appraisal actions to deal price, deal price less synergy, or even market price unaffected by the deal. The cases have given rise to a literature of both praise and critique. Charles Korsmo and Minor Myers take the analysis a step further in What Do Stockholders Own? The Rise of the Trading Price Paradigm in Corporate Law, arguing that the implications of these appraisal decisions reach beyond appraisal to cases involving mergers more generally, and suggest an incipient paradigm shift in how Delaware law conceives of the (value of the) stockholder’s interest in the corporation: “[i]n a real sense, the Supreme Court in the appraisal cases has simply altered its conception of the public corporation as a form of property.” (P. 3.) The authors argue that the new paradigm is a negative development, essentially eliminating appraisal (which they see as a remedy with beneficial effects), reducing incentives for investors to buy shares in public corporations, and creating undesirable uncertainty about bedrock propositions of Delaware corporate law.
This is an important argument in a very readable and carefully argued article, one that is perhaps even more significant now, as appraisal is not the only area where the Delaware Supreme Court is limiting shareholder litigation. In the appraisal context the authors say it is not “the first time the Delaware Supreme Court has recently tried to hide sweeping doctrinal change beneath a veneer of “nothing-to-see-here” consistency.” (P. 4.) Brookfield Asset Management v Rosson and United Food and Commercial Workers Union v Zuckerberg have much the same feel. Continue reading "The Value of a Shareholding"
Mar 8, 2022 David HoffmanContracts
Michael A. Blasie,
The Rise of Plain Language Laws, 76
U. Miami L. Rev. 447 (2022), available at
SSRN.
Many contract professors find the cases describing modern consumer contracts to be particularly challenging. The adhesive, omnipresent, nature of such deals belies the idea of the meeting of the minds, and the nation’s politics make reform seem out of reach. We all know that there are too many consumer contracts, and that the terms of such deals get worse every year. But what’s to be done about it? The fervor about consumer contracts even reached into the august halls of the American Law Institute, whose Restatement of Consumer Contracts faced substantial opposition last year when it embraced courts’ apparent tendency to de-emphasize the role of conspicuous notice in formation. You would be well within your rights to think that realities of consumer contracts make the rest of the semester feel like a bait-and-switch.
But take heart and read Michael Blasie’s The Rise of Plain Language Laws. Blasie shows that the last 40 years has wrought a quiet revolution in consumer contracting – one that is essentially never taught in our classrooms or remarked on in mainstream contracts scholarship. Legislatures have apparently created strong substantive mandates for what can be in consumer contracts, and how they can look, in essentially every state. They’ve done so in a relatively non-partisan way, over only modest opposition. It’s a shocking story. Continue reading "What If We’d Already Revolutionized Contract Law But No One Knew it?"
Mar 7, 2022 Rebecca ZietlowConstitutional Law
In recent years, some historians and legal scholars have taken to calling the Reconstruction Era the Second Founding of our Constitution. In The Second Founding and the First Amendment, William C. Carter joins these scholars and asks what it would mean if courts took the Second Founding seriously. Carter argues persuasively that the Reconstruction Amendments altered the entire constitution. If Carter is correct, then the Court should take seriously what it once observed, that there is “one pervading purpose” to the Reconstruction Amendments, “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.” Although the Reconstruction Amendments were not limited to that purpose, it is undeniable that unlike other constitutional provisions, the Reconstruction amendments – the 13th, 14th and 15th Amendments – were adopted with a particular group of people in mind, people who were formerly enslaved.
The Reconstruction Amendments expanded the constitution to protect those who had previously been excluded and disempowered. It follows that the Court should consider the experiences of enslaved people when interpreting those provisions. Until now, however, the perspective of formerly enslaved people has been largely absent from the conversation about the meaning of the constitutional changes wrought by Reconstruction. In The Second Founding and the First Amendment, William C. Carter seeks to remedy that oversight. Carter argues that we should interpret the constitution from the perspective of the disempowered people who were the intended beneficiaries of constitutional change. Moreover, formerly enslaved people and their free Black allies helped to create this constitutional meaning, actively participating in the antislavery movement and Civil War which brought about the end of slavery and the Reconstruction Era. Continue reading "The Transformative Impact of the Reconstruction Amendments from the Perspective of Enslaved People"
Mar 4, 2022 Edward RubinAdministrative Law
Guidance is a large, amorphous group of communications, often fluid and informal, by which administrative agencies instruct regulated parties about the way to comply with statutes, legislative rules and legal precedents. In-depth interviewing, as opposed to statistically analyzed surveys, is a fluid, relatively informal method of collecting empirical data. In Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, Nicholas Parrillo uses in-depth interviewing to understand the way in which guidance operates in the federal system. One reason I like it lots is that it is represents an effective combination of subject matter and methodology.
Professor Parrillo conducted 135 in-depth interviews with people in government, industry, unions and NGOs who had personal experience with the way federal agencies use guidance. Through this method, he was able to garner a great deal of information about a wide variety of guidance techniques, the effectiveness or ineffectiveness of these techniques, the subtleties of agency practice and regulated party response, the subjective reactions of the participants, and the sources of conflict and concern. Much of this would have been difficult or impossible to capture with a survey instrument, and some of the issues might not even have occurred to the researcher until highlighted by the interviewees. Of course, this method does not permit quantitative statements about the frequency of particular practices or beliefs, but when several people with decades of experience assert that a practice or attitude is widespread, that seems like convincing evidence. Continue reading "Uncovering the Hidden World of Administrative Guidance"
