Jan 11, 2022 Trevor GardnerCriminal Law
To the surprise of no one, the Defund the Police campaign has been subject to attack on several fronts—by political conservatives, police unions, and any number of Democratic Party politicians. How did Defund proponents respond to this high leverage moment? As the national debate about police budgets reached its apex, the Defund campaign seemed to scatter in several policy directions while clinging to the Defund mantra.
In To “Defund” the Police, Jessica Eaglin tracks these directions and draws a conceptual map of the various ongoing political projects designed to stem the flow of public money to police departments. To this end, Eaglin delivers a four-part typology of recent initiatives that plausibly fall under the Defund mantle: Police Abolition, Police Recalibration, Police Oversight, and Fiscal Constraints. Continue reading "The Promise of Radical Crime Policy"
Jan 10, 2022 Jasminka KalajdzicCourts Law
Richard D. Freer,
The Roberts Court and Class Litigation: Revolution, Evolution, and Work to be Done, 51
Stetson L. Rev. ___ (forthcoming 2022), available on
SSRN.
The rise in class action litigation has garnered significant scholarly and judicial attention over the past several decades, particularly in the United States. The Supreme Court of the United States under Chief Justice Roberts is perceived to be wary of, if not hostile to, class actions. A new paper by Richard Freer sheds light on the precise ways the Roberts Court has affected class action jurisprudence. The Court has released an average of more than two class action decisions a year since 2010, and in so doing, has revolutionized class action practice.
Freer offers a retrospective on three areas of jurisprudence that makes plain the important role the Roberts Court has played in class actions, especially over the past decade. He categorizes decisions as ‘revolutionary’, ‘evolutionary’ or ‘work to be done’. By analyzing the corpus of cases in this way, Freer provides a compelling account of the Court’s engagement with key class action issues. Continue reading "The Roberts Court’s Legacy in Class Action Jurisprudence"
Jan 7, 2022 Anna GelpernCorporate Law
US Treasury securities are to financial markets what carbon is to life on Earth—ubiquitous, foundational, indispensable, and acting very scary of late. “The Treasury market is the biggest, deepest and most important bond market in the world and acts as a benchmark that is used to price trillions of dollars of assets globally,” says the Financial Times, an authority on these matters—yet you would be hard-pressed to find half a dozen law review articles on the subject. A pair of papers by Yesha Yadav, most recently with (her dad) Pradeep K. Yadav, deserves much praise for starting to fill the gap. The papers properly frame the subject at the intersection of law, finance, and economics, while public and private sector “grandees” and “heavyweights” sound financial stability alarms and try to patch the fraying market architecture.
We have it on good authority that carbon is a relatively recent arrival in our universe; more so the US Treasuries. As recently as a century ago, the US Treasury Department was hawking versions of bespoke project bonds and struggling to emerge from Britain’s shadow in the financial markets. A succession of design choices in response to 20th century upheavals helped transform the US Treasury market from a fringe contender into the undisputed center of global financial gravity. Its centrality was on full display in October 2008 when frightened humans gorged on sticky pudding while the markets supplying their carbs scrambled for their own comfort food, the US Treasury securities. Continue reading "The Elephant in the Room"
Jan 6, 2022 Daniel BarnhizerContracts
David V. Snyder, Susan Maslow, and Sarah Dadush,
Balancing Buyer and Supplier Responsibilities: Model Contract Clauses to Protect Workers in International Supply Chains, Version 2.0, 77
Bus. Law. (ABA) ___ (Winter 2021-2022), available at
SSRN.More than 40 million people in the world today are held in some form of slavery. Slavery today takes many forms, ranging from the abhorrently obvious open slave markets in Libya reported in 2017 to bonded labor, prison labor, sex trafficking, child soldiers, debt slavery, and many other permutations of one of the oldest human institutions. Slavery is so endemic and difficult to police that the continuing human tragedy seems intractable, especially when viewed from the limited toolset available to governments seeking to prevent the practice.
The Model Contract Clauses 2.0 (MCCs 2.0) presented in this report represent a movement away from traditional command and control legislative and regulatory enforcement efforts to provide private commercial actors with a set of modular, scalable, flexible, and implementable mechanisms for addressing slavery in international supply chains. As Snyder, Maslow, and Dadush note: “This project was born of challenge, frustration, and hope. There is little doubt that workers in international supply chains are being abused, in the most horrifying ways, even as they work to produce the staples of our everyday lives and indeed support much of our economy.” (P. 2.) Continue reading "Soccer Balls Stitched by Tiny Fingers"
Jan 5, 2022 Margaret KwokaAdministrative Law
Brian D. Feinstein,
Identity-Conscious Administrative Law: Lessons from Financial Regulators, __
George Washington L. Rev. __ (forthcoming), available at
SSRN.
Literature exploring mechanisms for democratic accountability of the administrative state is so rich that it sometimes feels like there is no novel take left. But Professor Brian Feinstein, in his forthcoming article Identity-Conscious Administrative Law, shines a spotlight on an unexamined angle: how and when agency procedures use identity requirements to ensure otherwise-marginalized perspectives are heard.
The sets of administrative structures Professor Feinstein considers may seem specific and narrow, but as he compellingly demonstrates, the possible implications of expanding these approaches are vast and important. Indeed, what makes this article so convincing is its identification of extant and accepted tools to address deep and structural problems of inequality and injustice in administrative decisionmaking. If taken to a larger scale, these tools could be a central part of reclaiming democratic accountability over the administrative state. Continue reading "Elevating Marginalized Voices in Agency Decisionmaking"
Jan 4, 2022 Anne Marie LofasoWork Law
In her article, Temporary Termination: A Layoff Law Blueprint for the COVID Era, Professor Arnow-Richman argues “that the exigencies of the pandemic bring to light a long-neglected flaw in the pre-existing regulatory framework: there is no reliable just-in-time source of continued pay, nor any form of separation rights, for laid-off workers.” (P. 20.) The article is divided into three main sections. First, it describes the dearth of protections for laid-off workers. Second, it explains the legal significance this gap holds in protecting laid-off workers. Third, it “sketches a new law of layoffs focused on income continuity and job attachment.” (P. 4.)
In Part I (Pp. 5–12), The Economic Termination Gap, Professor Arnow-Richman explains that there are few federal (or state) protections for workers whose employment is terminated, permanently or temporarily, for economic reasons. The one federal right that Congress has created is a limited right to advance notice of job termination under the Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. §§ 2101-2109. The WARN Act requires certain large employers to provide 60-days’ advance notice of job loss resulting from a plant closing or mass layoff, as those terms are statutorily defined. Continue reading "Changing the Legal Baseline for Effecting Mass Economic Dismissals"
Jan 3, 2022 Anthony SebokTorts
David A. Dana,
Public Nuisance Law: When Politics Fail (May 26, 2021), available at
SSRN.
Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, holding that, as a matter of law, public nuisance does not extend to the manufacturing or marketing of prescription drugs. About a week later, a jury in a bellwether, the Ohio federal MDL, held that pharmacies caused a public nuisance by failing to respond to curb medically unnecessary prescriptions.
David Dana’s article offers a bold prescription to courts about how to approach public nuisance, including the opioid litigation. Dana’s argument should, in theory, make sense of November’s mixed bag of decisions. His argument operates at two levels, first about the relationship between public nuisance and democracy, and second about the specific wrongful conduct which the tort of public nuisance should address. Continue reading "Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law"
Dec 23, 2021 JotwellJotwell
Jotwell is taking a short Winter break. Jotting should resume on Monday, Jan 3, 2022.
This has been another difficult year for everyone. I and the Jotwell Student Editors — Claire Chatellier, Bridget Dye, and Allison M Paquin — all wish our readers a happier 2022.
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Michael Froomkin
Jotwell Editor in Chief
Dec 22, 2021 Victoria J. HanemanTrusts & Estates
Allison Anna Tait,
Inheriting Privilege, 106
Minn. L. Rev. __ (forthcoming 2022), available at
SSRN.
Over one’s lifetime, advantage processes have a cumulative and potentially significant impact on inequality. The notion of cumulative advantage, or behavior processes whereby wealth continues to fall into the hands of individuals based upon how much they have already accumulated, is a concept to which many labels are applied: preferential attachment; “the rich get richer”; the Matthew effect. Most law school courses on trusts and estates consider (to some extent) the privilege, power, and opportunity that flows from economic wealth. Conversely, inherited social and cultural capital create advantage processes that are arguably no less significant, driving behaviors that produce tacit economic benefits—the parent who pays for extra tutoring so that a child may outperform peers on an entrance exam; the professional able to develop an instant sense of rapport and connection with other successful professionals; the job candidate who comports herself with high cultural knowledge (au courant but appropriate attire, elegant table manners, knowledge of fine arts, broad functional vocabulary). Although the intergenerational impact of inherited cultural capital is fascinating and relevant as an advantage process, the implications have been largely overlooked by legal scholars contemplating inheritance frameworks. Inheriting Privilege by Allison Anna Tait considers the family trust as a mechanism for intergenerational transfer of privileged social standing and cultural hierarchies.
The article encourages us to think more broadly about patrimonies: family resources usually considered by legal scholars in the narrow context of financial assets. Social and cultural capital is manifest within the patrimonies of the wealthy, with season tickets to the polo club, country club memberships, fee-paid legacy status within initiation-based social clubs, or box seats to performing arts events. Cultural objects, heirloom possessions, and shared rituals may also be part of the patrimony. Notably, treasured collectibles may sometimes be a part of both the economic patrimony and the family’s cultural capital. Trust beneficiaries may have access to priceless antiquities without ever investing capital to purchase them (“only middle-class people buy furniture (because upper-class people inherit it)”). Access to high-value antiquities, artwork, and social memberships—or any of the conspicuous markers of elite white culture—is a mantle of privilege and one inherits unearned opportunities when cloaked with this mantle. Professor Tait’s argument that young people are paid more and promoted far earlier when they possess a wealth of social capital is thoroughly supported. Continue reading "Wealth, Privilege, Power, And Opportunity"
Dec 22, 2021 Paul OhmTechnology Law
Alicia Solow-Niederman,
Information Privacy and the Inference Economy (Sept. 10, 2021), available at
SSRN.
A decade ago, Charles Duhigg wrote a story for the New York Times that still resonates today, revealing that Target could predict its customers’ pregnancies and delivery dates from changes in their shopping habits. This and similar revelations pose a difficult question: how do we protect vulnerable people from the power of inferences? At the time, I wondered aloud whether we ought to regulate harmful data-driven inferences and how we would do it, which sparked characteristically overheated responses from the libertarian punditry.
A decade on, the ceaseless progress of machine learning (ML) has exacerbated these problems, as advances in the state-of-the-art of prediction make Target’s old algorithm seem like child’s play. ML techniques have become more accessible and more powerful, fueled by advances in algorithms, improvements in hardware, and the collection and distribution of massive datasets chronicling aspects of people’s lives we have never before been able to scrutinize or study. Today, obscure startups can build powerful ML models to predict the behavior and reveal the secrets of millions of people. Continue reading "How to Regulate Harmful Inferences"
