Mar 3, 2022 Joseph SeinerWork Law
In [Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights, Professor Doron Dorfman performs a superb analysis of the issue of accommodations for individuals with disabilities and the perception and attitudes of the public with respect to these accommodations.
The Americans with Disabilities Act (ADA) requires, under federal law, that those individuals with disabilities be provided with reasonable accommodations that do not cause undue hardship. The accommodation provisions of the ADA are wide-ranging, and cover both public and workplace accommodations. Though Professor Dorfman’s analysis in this paper is largely in the public accommodation context, the research is directly applicable, and important to, workplace issues and employment.
In this piece, Professor Dorfman looks at the many types of accommodations to which those with disabilities are entitled under federal law, and explores how nondisabled persons may perceive that these types of “special rights” are being abused. More specifically, he examines the perception by some that these accommodations are unnecessary or are being exploited, resulting in the (phrase coined by Professor Dorfman), “fear of the disability con.” In this paper, Professor Dorfman examines how these types of concerns by nondisabled members of the community can begin to erode trust in the ADA, as well as subject individuals with disabilities to both harassment and questions about their protected status. Continue reading "Public Accommodations, Public Perceptions, and Workplace Law"
Mar 2, 2022 Allison Anna TaitTrusts & Estates
Fred O. Smith Jr.’s compelling new article, On Time, (In)equality, and Death, is a remarkable inquiry that delves into the posthumous rights of individuals and the risks of subordination that persist even beyond death. Smith identifies “four long-standing ‘rights’ after death” – bodily integrity, dignified interment, protection against undignified disturbance once interred, and control over the disposition of one’s property – and subsequently analyzes the potential that inheres in each category for posthumous subordination. These risks overlap with and undergird each other, discrimination compounding dispossession, but Smith identifies four main mechanisms and details how reliance on these mechanisms increases the likelihood of posthumous subordination.
The first site of subordination is linguistic and discursive. As Smith explains, statutory language used to govern burial practices and acts of desecration rely on terms like “outrage,” “offensiveness,” and “reasonableness.” The problem is that these terms are culturally contingent and “imbued with cultural values and norms.” Bodies have been prepared in different ways, burial has involved many different processes, and mourning practices have ranged from public and vocal, to private and silent. Cultural norms, pinpointed in time, have dictated these practices and the variety of approaches taken to death and care for the dead reminds us that the “outrage” accounted for in statutes is co-extensive with whatever it is that ruling bodies and classes find outrageous at any given moment. It would be interesting to have some examples of what Smith has in mind here as evidence of the cultural contingency of burial practices. Continue reading "Unearthing Posthumous Subordination"
Mar 1, 2022 Ari WaldmanTechnology Law
evelyn douek,
Content Moderation as Administration (Jan. 12, 2022), available on
SSRN.
As law-and-technology scholar evelyn douek explains in her eye-opening, scholarly, and well-written Content Moderation as Administration, the conventional account of content moderation is wrong and its policy implications are off the mark. douek argues that we should toss aside the assumption that content moderation is a series of individual decisions made by people and computers acting as judges. The better way to think about it is as a process of ex ante rights administration and institutional design. Instead of learning lessons from judicial process, we need to learn from administrative law.
A system of immeasurable scale purportedly designed to reflect liberal First Amendment principles, content moderation now includes algorithms and artificial intelligence, armies of third-party moderators from the Global South paid very little to make decisions in seconds, and, a lot of money for Silicon Valley executives. Of course, this has led to repeated and repeatedly horrible results. Content moderation rules and practices facilitated genocide, helped swing elections toward fascists, and routinely and systematically censored queer and nonnormative sexual content. Right wing politicians got in on the act, as well, claiming designed-in and as-applied anti-conservative bias when the evidence proved the opposite. Facebook responded by creating an oversight board with a lot of fanfare, but very little power. Continue reading "Shifting the Content Moderation Paradigm"
Feb 28, 2022 Allan ErbsenCourts Law
Pamela K. Bookman & Colleen F. Shanahan,
A Tale of Two Civil Procedures, 122
Colum. L. Rev. __ (forthcoming, 2022), available at
SSRN.
Law students often perceive civil procedure as the first-year subject that is least accessible to nonlawyers. Before law school, students signed contracts, owned property, monitored criminal trials, encountered torts, and invoked the Constitution. But civil procedure teems with novel concepts, mysterious rites, and unfamiliar vocabulary. These features beguile students into viewing civil procedure as a realm in which only lawyers tread. The case method reinforces this misperception by focusing on published opinions arising from litigation between represented parties. The misperception persists after graduation and influences how lawyers conceptualize the field of civil procedure.
Unfortunately, focusing on how procedure shapes opportunities for lawyers obscures the large volume of civil cases in which at least one party does not have a lawyer. A growing literature explores the implications of failing to adapt lawyer-centric procedural ideals to “lawyerless” adjudication. Scholars have analyzed state courts in which cases routinely proceed without lawyers (such as family courts) or in which represented parties sue unrepresented parties (such as housing courts). These courts affect millions of vulnerable people in traumatic circumstances. Yet procedures in many lawyerless courts fail to account for the practical consequences of self-representation within a nominally adversarial system. The ensuing risk of injustice has led commentators to propose a wide variety of reforms. Pamela Bookman and Colleen Shanahan’s A Tale of Two Civil Procedures looks beyond “fixing” specific procedures. The Article focuses instead on removing obstacles to understanding what is broken. A critical obstacle is that commentators often frame the field of civil procedure in a way that obscures the importance of lawyerless adjudication. The Article suggests reframing the field to directly engage with distinctions between “lawyered” and “lawyerless” courts. Bookman and Shanahan contend that this approach will make descriptive accounts of civil procedure more precise, normative discussions more nuanced, and reform proposals more effective. Continue reading "Civil Procedure for Lawyerless Courts"
Feb 25, 2022 Kathleen DeLaney ThomasTax Law
The problem of income inequality is well-documented. And for those who support greater income redistribution, the current state of affairs is bleak. Proposals for a wealth tax or heavier taxation of capital income appear to have stalled, and little progress has been made towards meaningful reform measures that would shrink wealth and/or income gaps.
So what gives? We already know part of the story. Progressive tax proposals, such as mark-to-market taxation, tend to be complex, which in turn makes them harder to sell to politicians and the public. Similarly, reform measures like a wealth tax face criticism that they would be too hard to administer. Yet adding to these problems appears to be a general indifference, if not outright lack of support, from the public. This is puzzling because, given the evidence that only a very small percent of Americans holds most of the nation’s wealth, a lot of people would benefit from wealth or income redistribution. So why isn’t there more popular support for redistributive tax policies? A recent empirical study offers compelling evidence of another major barrier to reform: our irrational, subjective beliefs about where we fall on the income distribution. Continue reading "Why is it So Hard to Reduce the Wealth Gap? Cognitive Bias May Be Partly to Blame"
Feb 24, 2022 Andrea BoyackProperty
In the most powerful and important article I have read in years, The History Wars and Property Law: Conquest and Slavery as Foundational to the Field, Professor K-Sue Park blows the cover off American property law to show the central role played by historic expropriation and commodification of Native lands and Black persons.
Conquest of land and enslavement of people make up a small or nonexistent part of most first-year property law courses. But without these two organizing principles, the property course in U.S. law schools seems disjointed and oddly Anglicized. Professor Park explains this lack of cohesion as resulting from persistent erasure of two of U.S. property law’s most foundational aspects: conquest and slavery.
Park’s work has helped to publicize the stubborn impacts of past and present racial injustices in America. Over the past year, this increasing awareness of systemic racial bias has sparked an angry backlash. As Park puts it, “[w]e are in the midst of an ongoing fight over competing versions of U.S. history.” Continue reading "Honor Among Thieves: US Property Law, Conquest, and Slavery"
Feb 23, 2022 Jill FamilyLexImmigration
Ava Ayers, Missing Immigrants in the Rhetoric of Sanctuary, 2021
Wis. L. Rev. 473 (2021), available at
SSRN.
Ava Ayers asks us to think about a hypothetical policy that says, “We must protect our children from violent crime because children are key drivers of economic well-being.” Professor Ayers aptly describes this language as “creepy.” Why, then, do politicians often discuss immigration by emphasizing what migrants can do for us, rather than in terms that recognize the agency, rights, and intrinsic value of individual migrants? While the effects of immigration are a legitimate concern, the rhetoric of politicians often leans on a transactional approach to immigration, rather than one based on moral grounds. While the reluctance to highlight what is best for migrants may be understandable given political calculations, Professor Ayers pushes us to think about what is lost by ignoring opportunities to say that undocumented individuals matter, that they are a part of the community, and that they are worthy of the concern of public leaders. Professor Ayers’ approach focuses on the way that policy reflects “attitudes about the value of human beings.” The law is about more than just consequences.
In Missing Immigrants in the Rhetoric of Sanctuary, Professor Ayers examines the rhetoric used by local and state policymakers when crafting sanctuary policies. While “sanctuary” has no strict definition, it generally refers to policies that resist immigration enforcement or policies that withhold state and local cooperation with immigration enforcement. Some sanctuary policies involve active resistance, while others are more passive. All sanctuary policies are meant to protect individual noncitizens. But, as Professor Ayers has found, the justifications for sanctuary policies are at times expressed in language that emphasizes what sanctuary policies can achieve for those who are not at risk of deportation. In other words, policymakers, at times, do not make those who will benefit from a sanctuary policy the center of their rhetoric. Continue reading "Why Don’t Policymakers Speak Out About Migrants?"
Feb 22, 2022 Richard MoorheadLegal Profession
In a Tai Chi exercise, two people stand face to face, each with one palm outstretched an inch or two apart. One person moves their hand and the other seeks to follow it wordlessly. The exercise is designed to produce a feeling of the energy flowing mysteriously between two people. I was reminded of this exercise when reading Meredith Rossner’s article on remote courts which moves deftly between the sociology of co-presence, ritual, and entrainment, which is “the synchronization of mutual attention, emotion, and behaviour,” to test the potential of virtual justice.
Rossner argues virtual courts can “translate,” improve, and sometimes “completely reimagine” court ritual. The article illustrates some paths to be taken between tech evangelism and traditionalism. It shows how thoughtful and well-researched court design can (sometimes) allow remote justice to emulate and improve upon physical courtrooms. Material and symbolic court rituals can be translated into virtual contexts in ways more egalitarian and inclusive than the austere grandeur of higher courts and the dilapidated functionalism of everyday courts. Continue reading "Designing Rituals in the World of Virtual Courts"
Feb 21, 2022 Angela FernandezLegal History
Henry Bergh was the founder of New York’s American Society for the Prevention of Cruelty to Animals (ASPCA), the first U.S. animal rights organization established in 1886. The title of Ernest Freeberg’s new book, A Traitor to His Species, refers to the public perception of Bergh as no friend to humanity. Those who Bergh did battle with, “teamsters and turtle dealers, circus managers and cockfighters, butchers and surgeons,” defensively asked “Why did Bergh hate humanity so?” Why was he such “a traitor to his own species”? (P. 5.) Freeberg does little to deflect the image of Bergh as “a fanatic who cared more for animals than he did for humans.” (P. 29.) To the extent that this is a stereotype of animal activists (i.e. as misanthropes), one might wish Freeberg had engaged with that view of Bergh a little more critically. However, Freeberg’s Bergh, declared by one newspaper to be a “public pest,” was “perhaps,” according to Freeberg, “a necessary one.” (P. 21.) Certainly, “[t]he vivid tales of his confrontation on the streets of New York made him one of the city’s celebrities.” (P. 22.) Many different animals were featured in Bergh’s campaigns; however one stood out, the one Bergh was most concerned about and which caused him to take up the animal cause in the first place: the horse.
A Traitor to His Species begins with the following line: “Few pictures of a late nineteenth-century American city street lack a horse.” (P. 1.) Relatively elderly (fifty-three) and wealthy when he came to start caring about the treatment of animals, Bergh was deeply moved by the abuse of carriage horses he witnessed in St. Petersburg during a brief time spent in Russia as a diplomat. Freeberg says that it “provoked in him [Bergh] something like a conversion experience.” (P. 8; see also Pp. 24-25.) Freeberg also tells us that a large bequest for the ASPCA later came from a wealthy fur trapper, Louis Bonard, who gave a deathbed donation motivated by the fear that “he would soon be reincarnated as a carriage horse.” (P. 116.) Continue reading "Henry Bergh, the American Society for the Prevention of Cruelty to Animals, and the Horse"
Feb 18, 2022 Emad AtiqJurisprudence
There are some views in philosophy that have the reputation of being intuitive or widely held. One such view is legal positivism. The positivist maintains that what fundamentally determines the legality of rules is purely social facts—for example, people’s acceptance of the rule—and, moreover, that the moral wickedness of a rule does not necessarily diminish its legality. Positivism is standardly assumed to be more intuitive and widely accepted than competing, non-positivist views. But the basis for this assumption is rarely (if ever) made explicit. Until recently, there has been very little empirical work investigating general intuitions about law’s nature. Two recent studies, however, report results that challenge the conventional wisdom about convergence and controversy in jurisprudence.
In The Folk Concept of Law: Law is Intrinsically Moral, Brian Flanagan & Ivar Hannikainen test whether the “folk” concept of law is more compatible with positivism or non-positivism. They surveyed 390 college students, who had not yet taken any courses in legal philosophy, about their willingness to attribute legality to rules that, while socially accepted in a hypothetical jurisdiction, are morally wicked. In one of their experiments, F&H presented subjects with a society called “Figuria” where citizens are law-abiding and follow a constitution that “assigns unfettered legislative power to an elected assembly and omits any mention of individual rights.” The assembly, prompted by a belief in white supremacy, passes a statute banning interracial marriage. Subjects were asked to indicate their level of agreement with various statements regarding the statute’s legality, including “there is a sense in which [the statute] is clearly a law” and “ultimately, when you think about what it really means to be a law, you would have to say that [the statute] is not truly a law.” They report the following results: Continue reading "Disagreement about Law and Morality: Empirical Results and the Meta-Problem of Jurisprudence"
