Feb 18, 2021 Lumen N. MulliganCourts Law
Thomas O. Main, Jeffrey W. Stempel, & David McClure,
The Elastics of Snap Removal: An Empirical Case Study of Textualism (Aug. 17, 2020), available on
SSRN.
Who are the most textualists federal judges (at least in the context of “snap removal”)? Thomas Main, Jeffrey Stempel, and David McClure conclude that they are younger, Republican-appointed, white, female judges who attended elite universities. This conclusion is but one of many important insights their empirical work offers to the continuing snap-jurisdiction debate.
For the uninitiated, snap removal is a proper (or improper) exercise of federal removal jurisdiction, depending upon your approach to statutory interpretation. The primary federal removal statute allows a state-court defendant to remove a case to federal court when it otherwise could be brought in diversity jurisdiction. One exception to this scheme, the forum-defendant rule, bars removal “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Because the statute requires the forum defendant to be both joined and served, in many states there is a window of time in which the forum defendant is joined but not yet served, during which the non-forum defendants may attempt removal. That is to say, these non-forum defendants may be able to remove if they do it as quick as a snap. Continue reading "What Does a Textualist Look Like?"
Feb 17, 2021 Joseph SlaterWork Law
Much has been written and said about police unions lately, most of it justifiably impassioned but not all of it well-informed by public-sector labor law rules and practices. This article is both. And while the question of the effect of police unions on police reform has been a hot topic in 2020, it is worth noting that Professor Hardaway identified this as a significant issue before it was as much in the limelight as it is now.
The article begins by recounting a series of tragic killings by police and calls for reform via the Violent Crime Control and Law Enforcement Act of 1994. The article then carefully describes a long history of racism in policing. Moving to modern times, the article catalogues the inadequacies of private litigation in achieving police reform. Continue reading "Smart Thinking about Police Unions and Labor Law"
Feb 16, 2021 Katheleen GuzmanTrusts & Estates
In 1956, sociologist Erving Goffman wrote his now-classic text, The Presentation of Self in Everyday Life. Consciously or not, Goffman posited, people are invariably actors, their lives spent staging and arranging a string of performances across time and space. Were A and B to meet for a walk, their social interaction would comprise complex impression management techniques with each simultaneously actor, and audience, to the other.
Goffman’s contributions were neither startling then nor dated now. “All the world [was already] a stage” to a 17th century playwright, and as Rush admonished in the late 20th century – Limelight; Moving Pictures (1981) – “we are merely players, performers and portrayers.” Rush continued, casting the limelight as “the universal dream for those who wish to seem,” by contrast to its incompatibility to a life of authenticity, where seeming – and being – are merged. Goffman might have questioned whether such a life were even possible. But it is likely that none of them – not Shakespeare, nor Goffman, nor even Geddy Lee or Neil Peart – could have known the prescience of their observations as applied to the social media platforms on which so many live today. Shelly Kreiczer-Levy and Ronit Donyets-Kedar do, and through Better Left Forgotten: An Argument Against Treating Some Social Media and Digital Assets as Inheritance in an Era of Platform Power, they invite us to think longer and harder (or at least, differently) about what it means to propertize online presentations of self through inheritance. Continue reading "Performers and Portrayers"
Feb 15, 2021 Anita BernsteinTorts
Torts-minded readers with an under-18 person or two they care about in their lives will appreciate Civil Liability for Cyberbullying (“Cyberbullying”), published in June by the Israeli private law scholar Ronen Perry. They will find ample theory, doctrine, erudition, and intellectual loft too, but this paper is peopled. In both his article and a blog post he wrote about it Perry leads by remembering a person: Megan Meier, who at age 13 heeded a suggestion posted on MySpace in 2006 that she kill herself.
From this opening Perry moves to spend most of his time on three groups whom the law could hold responsible for the harms of cyberbullying. First are young peer offenders. (P. 1226.) Next come what Perry calls “real-life supervisors” (P. 1235): parents, teachers, school administrators. Last are “virtual supervisors, namely platforms that enable juvenile cyber-activity and cyber-wrongdoing,” for example Facebook, Instagram, and YouTube. (P. 1245.) Perry has tort liability plans for all these groups. His exposition contains many virtues, of which I will mention three. Continue reading "Three Deft Kicks to the Problem of Cyberbullying"
Feb 12, 2021 Ari WaldmanTechnology Law
Salome Viljoen,
Democratic Data: A Relational Theory for Data Governance (Nov. 11, 2020), available on
SSRN.
Between 2018 and 2020, nine proposals (or discussion drafts) for comprehensive data privacy legislation were introduced in the U.S. Congress. 28 states introduced 42 comprehensive privacy bills during that time. This is on top of the European Union’s General Data Protection Regulation, which took effect in 2018, and the California Consumer Privacy Act, which took effect in 2020. Clearly, U.S. policymakers are eager to be active on privacy.
Are these privacy laws any good? Put differently, are policymakers drafting, debating, and enacting the kind of privacy laws we need to address the problems of informational capitalism? In Democratic Data: A Relational Theory for Data Governance, Salome Viljoen suggests that the answer is no. Continue reading "The Data Economy is Political"
Feb 11, 2021 Leigh OsofskyTax Law
Clint Wallace’s short essay, The Troubling Case of the Unlimited Pass-Through Deduction: Section 2304 of the CARES Act, is well worth a read for tax scholars, non-tax scholars, and non-scholars alike. The essay addresses what may be thought of by some as one of the “esoteric” provisions of the CARES Act. The upshot is that, by using the very esoteric nature of the provision as cover, Congress slipped costly, regressive, unjustifiable legislation into the CARES Act, which was sold to the public as progressive, emergency relief from the COVID-19 disaster.
The essay is important for a number of reasons. First, it educates readers about how the CARES Act resurrects an unlimited pass-through deduction for high-income taxpayers. Second, by doing so, it helps readers understand how the CARES Act was actually regressive in important ways. Third, it more broadly cautions readers about some of the unseemly aspects of legislation, in which legislators benefit favored groups in ways that the public is unlikely to understand. Finally, by writing this short essay, Wallace models how scholars have a duty to shine a light on these aspects of the legislative process. Continue reading "Troubling Legislation"
Feb 10, 2021 Andrea BoyackProperty
The Fair Housing Act is now 52 years old but housing segregation persists. Historically, the government itself supported and entrenched our reality of “two societies, one black, one white—separate and unequal.” Recognizing the vast and long-lasting harms caused by housing segregation and inequality, Congress passed The Fair Housing Act in 1968. The Act required government instrumentalities and partners act “in a manner affirmatively to further” fair housing (Section 8(d)). Government institutions and instrumentalities have not so acted, and inequitable and unfair housing continues, impacting all metrics of racial inequality.
Professor Kristen Barnes’s article, The Pieces of Housing Integration, addresses head on the government’s failures to fulfil the mission of the Fair Housing Act. She adds an important voice and perspective to existing Fair Housing scholarship. Continue reading "Housing Integration: Moving Forward (Without Stepping Back)"
Feb 9, 2021 Eric BiberLexEnvironmental Law
The federal government manages tens of millions of acres of land across the United States. That land includes some of the most iconic landscapes in the country – such as Yosemite, Yellowstone, and Everglades National Parks. It also is land that provides habitat for endangered species, ecosystems that support communities and wildlife, resources such as timber and minerals for economic development, and more. Forests on federal lands have been at the center of the wildfire crisis enveloping California and the Western United States. Given these overlapping demands and their importance, these lands are a fertile source for conflict, and much litigation and political rancor.
Yet there are other ways to resolve that conflict – engagement between various interests (“stakeholders”), and federal, state, local, and tribal governments about how to manage the lands and achieve these conflicting goals. This kind of stakeholder collaboration has received relatively little treatment in the legal literature – and Karen Bradshaw’s article is a vital contribution simply because of its efforts to cover that gap. Supported by the Administrative Conference of the United States, Professor Bradshaw undertook an impressive assessment of how a wide range of federal agencies – focusing on, but not limited to, the public lands – use collaboration among different stakeholders to help manage conflicts over public resources. Continue reading "We Need to Work Together: Understanding Federal Agency Collaboration"
Feb 8, 2021 Amy SalyzynLegal Profession
Lawyers need to be competent. No one would disagree with this simple fact. More contentious is the question of how to ensure that lawyers are, in fact, competent. On the pre-entry side of things, controversies have frequently erupted over law school curricula and bar exams. In the area of post-entry competence, recent years have seen lively discussions about how best to measure and ensure good lawyering. Within this dynamic context, Pooja Parmar’s recent article Reconciliation and Ethical Lawyering: Some Thoughts on Cultural Competence is an important contribution to the growing scholarly literature on what it means to be a competent lawyer in the 21st century.
The focus of Parmar’s article is the Canadian legal profession’s response to the Calls to Action by the Truth and Reconciliation Commission of Canada (“TRC”). More specifically, Parmar focuses on the “particularly noticeable” attention given “to cultural competence or skills generally associated with the idea.” (P. 532.) For example, in response to the TRC Calls to Action, the Law Society of Alberta and the Law Society of British Columbia have both now instituted mandatory Indigenous cultural competence training for all lawyers. Continue reading "Reconciliation and the Limits of Cultural Competence"
Feb 5, 2021 Kunal ParkerLegal History
Henry M. Cowles has written an absolutely brilliant book that traces the history of the idea of “the scientific method” from Darwin to Dewey. Although Cowles’ intended audience is historians of science, the book has important and tantalizing implications for those interested more generally in the twentieth-century modernist turn to method, process, procedure, and technique. This is a turn that American legal historians will recognize in the massive emphasis on procedure and process that marked twentieth-century American legal thought, beginning with the rise of the administrative state in the early twentieth century and reaching its apogee with the Legal Process School in the 1950s and 1960s.
The conventional account of the modernist turn to method runs as follows. Around 1900, thinkers in diverse realms of Euro-American intellectual life—ranging from law to literature, mathematics to music, physics to painting—became newly aware of the rickety scaffolding propping up their disciplines and endeavors. What were once deemed established truths, unassailable rationalities, given moralities, and transcendental aesthetic norms suddenly seemed spurious, the product of nothing but history, the tottering fabrications of fallible men. In the American legal context, this moment is exemplified in the scholarly writings, addresses, and judicial opinions of Oliver Wendell Holmes, Jr. The modernist moment was famously disorienting, simultaneously frightening and challenging, at once fraught with promise and uncertainty. Old moorings had come undone. How was one to make sense of the world? How was one to proceed? Continue reading "The Pleasures of Method"
