Feb 3, 2022 Nancy KimContracts
Roseanna Sommers,
Contract Schemas (Jul. 8, 2021), available at
SSRN.
There are some things that we know about contracting behavior even without the benefit of empirical studies. Do we really need studies to prove that nobody clicks on a hyperlink to read Terms of Service when it is something that we ourselves have never done? Do we really need more empirical studies to show us that most people wouldn’t understand the fine print even if they did? It is our everyday experience that informs our understanding of contracting behavior, not necessarily our expertise or knowledge of doctrine.
But sometimes, our expertise may cloud our thinking so that we can no longer put ourselves in the shoes of the layperson, and what we assume about contracting behavior turns out to be wrong, incomplete, or misleading. For that reason, Roseanna Sommers’s article Contract Schemas should prove to be a useful resource for those who write on consumer contracts and consumer contracting behavior. Sommers’s article is a review of the literature involving “what ordinary people think is happening when they enter into contractual agreements.” (P. 2.) It reinforces what we may already have suspected about some things and reminds us that some of what we know and assume others know is, in fact, not universally known. Because Sommers includes somewhat obscure sources as well as more familiar studies, it is a useful overview of the literature of the psychology of consumer contracts for both newcomers and those already familiar with the field. Continue reading "Consumer Beliefs About Contracts"
Feb 2, 2022 Richard PierceAdministrative Law
Aram A. Gavoor & Steven A. Platt,
In Search of the Presumption of Regularity, __
Fla. L. Rev. __ (forthcoming 2022), available at
SSRN.
The Supreme Court has often invoked the presumption of regularity and its first cousin, the presumption of good faith. Taken together the two presumptions instruct courts to assume that the government has used the proper procedures to take an action that is properly motivated. Neither the Court nor scholars have engaged in any systematic effort to define the two presumptions, justify their existence, describe their scope and uses, or describe the evidence that is required to rebut the presumptions. Aram Gavoor and Steven Platt’s new article In Search of the Presumption of Regularity undertakes that task at a time when it is particularly important to understand the presumptions.
The Supreme Court often says that a court should apply the presumption of regularity and the presumption of good faith “except in the rare case” in which there is powerful extrinsic evidence of wrongdoing by the government. It is fair to question the Court’s characterization of the circumstances in which there is reason to doubt the applicability of the presumptions as “rare” today. Over the last few years, both the public and the courts have had many occasions to doubt the rarity of government actions that were taken without using proper procedures and for undisclosed inappropriate reasons. As I have detailed elsewhere, the Supreme Court has responded to this troubling trend by increasing the scope and intensity of the duty to engage in reasoned decision making, but it has not engaged in any systematic attempt to describe the presumptions, their justifications, their scope, or their effects. Continue reading "A Timely, Thorough, and Provocative Evaluation of the Presumption of Regularity"
Feb 1, 2022 Michael C. DuffWork Law
In his excellent book, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era, Nate Holdren satisfyingly scrutinizes the “Grand Bargain,” through which workers are said to have traded tort rights for workers’ compensation statutory rights. It has always been a little difficult to swallow the idea that in 1911—the year of enactment of the first U.S. workers’ compensation statutes—American workers were sufficiently organized nationwide to compel employers and Government to make this trade. Still, as Holdren makes clear, American workers had every incentive to be interested in supplanting a negligence system that defeated worker injury claims through operation of the dreaded “unholy trinity” of contributory negligence, assumption of the risk, and the fellow servant rule. But the Grand Bargain may have been more about what industry and Government wanted than what workers wanted.
Holdren retells the story of how national employers’ associations like the National Association of Manufacturers, the National Metal Trades Association, and the National Civic Federation threw their support behind workers’ compensation laws during the first decade of the 20th century. (P. 110.) In so doing, he repeatedly and appropriately problematizes the familiar, and in some ways too comfortable, Grand Bargain narrative, that employees happily gave up tort rights because they were always losing. As it turns out, workers were beginning to win negligence suits by around 1910, and the costs of employer third-party tort liability insurance were steadily rising during the early 20th century (Pp. 95-97). The truth of the matter seems to be that courts of the era were becoming increasingly unpredictable by rendering decisions in favor of workers, a fact independently true even before considering proliferating federal and state employer liability statutes that deprived employers of some traditional affirmative defenses to negligence claims. (Pp. 102-03.) Continue reading "Recasting the Workers’ Compensation Grand Bargain"
Jan 31, 2022 Katheleen GuzmanTrusts & Estates
Each moment of every day, many people are living without a formal estate plan and dying without a valid will. Reasons include ignorance, inertia, and choice. Some might not know that they have the ability to transfer property at death; others don’t want to think about the matter or do not care. A slight few might consciously figure that solving who gets what is best left to survivors to sort out, thereby externalizing the effects of their indecision. And there always remains the unlikely possibility that a person will both know, and consciously select, the succession outcomes that intestacy would force. In the latter two instances, those who “choose not to decide [] still have made a choice.” Nevertheless, as Professors Mary Louise Fellows and E. Gary Spitko intimate in How Should Non-Probate Transfers Matter in Intestacy?, individuals who intentionally die without an estate plan are probably rare.
Dying without an enforceable estate plan poses problems because clarity of ownership – knowing who owns what and precisely when – matters. Such deaths are neither new nor novel, with intestacy rules offering a solution. The property will pass to the decedent’s heirs, i.e. those whom state statutes identify as takers in default of a will. Otherwise stated: the property will pass to whomever some set of long-ago legislators (picture that demographic) determined as the most likely (or, as shaded by inherent biases, “appropriate”?) candidates for the decedent’s largesse. While intestacy may provide an efficient solution for distributing the property of decedents who died without manifesting a preference, Professors Fellows and Spitko note the inadequacy of that solution and posit a more intent-effectuating response. Continue reading "Most People, Most of the Time"
Jan 28, 2022 Scott Skinner-ThompsonTechnology Law
Body-worn cameras are proliferating with astounding speed in police departments throughout the country. Depending on the conditions under which cameras are used, the spread of this technology has been defended by certain civil liberties organizations as a means of holding police accountable for excessive force used disproportionately against Black, Brown, and queer people. In his new book, Police Visibility, Professor Bryce Clayton Newell musters empirical fieldwork on police deployment of body cameras to slow the rush to implement this potentially pernicious law enforcement surveillance tool.
This book is a careful and in-depth study by a leading scholar of police technology. Specifically, Newell questions whether the prescription (police cameras) will meaningfully treat the illness (structural racism and police violence). As he puts it, “[i]n the absence of broader police reforms, the cameras may offer a Band-Aid … but they do not promise a cure.” (P. 40.) As Newell notes, body-worn cameras “serve the coercive aims of the state” and increase police power because the cameras are evidentiary tools controlled by the police that can be used to surveil and incarcerate more people. Continue reading "Debunking the Myth that Police Body Cams are Civil Rights Tool"
Jan 27, 2022 Robin J. EffronCourts Law
Proceduralists debate what procedures a system of civil justice ought to have and what rules and doctrines best actualize these procedures. We do not, however, pause enough to ask, “in the real world of courts and dispute resolution, do these rules and procedures do what we think they are doing?” Lauren Sudeall and Daniel Pasciuti contribute to the growing literature of quantitative and qualitative empirical studies of what happens inside American courtrooms by observing and analyzing the inner workings of dispossessory (eviction) courts in Georgia.
Sudeall and Pasciuti provide a detailed account of dispossessory courts in three counties – a large suburban county, a large rural county, and a small rural county. They shed needed light into the proverbial “black box.” I guess many legal academics have scant knowledge of the workaday life of state courts, and fewer still of specialized and small claims courts. For those who have spent time in these arenas, Praxis and Paradox demonstrates the wide variance between courts within the same state with a nominally uniform set of substantive and procedural laws. To know one housing court is not to know them all. Continue reading "“Day-in-Court Theater” in Eviction Court"
Jan 26, 2022 Charlene D. LukeTax Law
Andrea Monroe,
Making Tax Law Work: Improvisation and Forgotten Taxpayers in Partnership Tax, 55
U. Mich. J. L. Reform (forthcoming), available on
SSRN.
Andrea Monroe’s article, Making Tax Law Work: Improvisation and Forgotten Taxpayers in Partnership Tax, boldly calls on partnership tax experts to understand their role in normalizing dysfunction within partnership tax law and to support reform that is mindful of all partnerships.
Although millions of business entities are taxed as partnerships, assets and income are concentrated in a small number of them. As Monroe notes, drawing on IRS data from 2018, “less than 1 percent of partnerships held greater than 76 percent of partnership assets, and approximately 73 percent of partnerships held roughly 1 percent of partnership assets.” This suggests great differences among tax partnerships, yet, as partnership income and deductions are taxed to the partners and not the partnership, all tax partnerships must allocate their income and deductions to their owners. Continue reading "Law Over Improvision: A Call to Reform the Culture of Partnership Tax"
Jan 25, 2022 Serena WilliamsProperty
As a little girl growing up in a segregated Southern town in the 1960s, I did not understand the policies and practices that led to the creation of my neighborhood. Right after my birth, my parents purchased a very small single-family home in a newly built segregated subdivision, a subdivision created for just us, a subdivision that lacked many of the services and amenities typically available in white neighborhoods.
Reading the article Home Equity: Rethinking Race and Federal Housing Policy, written by Rachel Godsil and Sarah Waldeck, caused me to think about how federal housing policy could have led to the creation of that all-Black neighborhood that provided both a safe and an unsafe space in which to grow up.
In my childhood neighborhood, we played in the street as we had no parks and we walked to an elementary school that was built on the far side of a four-lane street and within close proximity to manufacturing facilities and railroad tracks. I do not recall sidewalks or streetlights or crosswalks, but I do recall drainage ditches and flooding and the day a schoolmate was killed by a car while she was trying to cross that four-lane street to get to school.
In their article, Godsil and Waldeck declare: “With few exceptions, the government at every level has empowered white people to create ‘white spaces’ and has both stigmatized and failed to invest in Black neighborhoods and communities.” The authors propose a rethinking of federal housing policy, arguing for a corrective policy that addresses the inequities of the past and that gives agency to those who have been denied decision-making power in their choices of where to live, a decision that has been historically racialized. Continue reading "Justice, Just Us, and Housing Policy: A Call for Correction"
Jan 24, 2022 Aila HossLexNative Peoples Law
From land theft to child removal to cultural genocide, the horrors and harms of federal Indian law have been well-documented. In his recent article, Professor Crepelle acknowledges this history and literature and asks: “Is it ethical to cite cases that are factually wrong and racist?” (P. 533.) He concludes that federal Indian law practice is “incompatible with modern standards of legal ethics.” (P. 532.) I couldn’t agree more.
Professor Crepelle identifies cases that rely on racial slurs, inaccurate stereotypes, and white supremacist language to reach legal conclusions that undermine Tribal jurisdiction or Indigenous rights. These cases—the Marshall trilogy, US v. Rogers, Ex Parte Crow Dog, US v. Kagama, among others—are regularly relied upon in modern federal Indian law practice.
Professor Crepelle analyzes how the Model Rules of Professional Conduct (MRPC) could be applied to lawyers who cite racist federal Indian law cases or judges who rely on them. For example, the MRPC requires claims to be based in law and fact (r. 3.1); prohibits the use of false statements or inaccurate information (r. 3.3, r. 4.1, r. 8.4(c)); and bars conduct that discriminates based on race, sex, or national origin (r. 8.4(d)). Continue reading "Federal Indian Law is Racist"
Jan 21, 2022 Robert GordonLegal Profession
This mammoth (858 page) book, The Intellectual Sword: Harvard Law School, The Second Century, is the sequel to the same authors’ On the Battlefield of Merit: Harvard Law School, The First Century. That volume broke the boundaries of conventional institutional histories, which are mostly coffee-table celebrations of successive deans and of the buildings erected during their tenure. The authors situated the Harvard Law School (HLS) in the middle of ferocious party-political struggles and the Civil War. They produced the most thorough and searching description and analysis of C.C. Langdell’s famous experimental reforms of the 1870s and 80s in legal education. And they advanced the argument—pursued at much greater length in their new book—that HLS set the template not just for legal, but for professional education generally in the 20th century.
The structural argument. The central argument of the book is that financial structure determined the character and destiny not only of HLS and other American law schools, but to some extent of medical and business schools as well. HLS from the start was locked into a syndrome of dependence on tuition for revenue, which meant that it had to admit a large number of students. To service those students, it had to hire more faculty and acquire more building space, to pay for which it needed to continue to keep its enrollments high. At the same time, to maintain quality and plausibly certify its graduates as the cream of meritocratic competition, it had to flunk out many of the entering class and ruthlessly sort and rank those who remained. The results of high enrollments were very large faculty-student ratios and large classes, dependent on teacher interactions with the most aggressive and articulate students in them to keep Socratic dialogue going; a harsh boot-camp training method, leading to Darwinian competition; equation of “merit” (universal legal competence) with performance on first-year exams, and demoralization and alienation of the non-elite students. Continue reading "Harvard’s Model of Legal Education"
