Dec 11, 2020 Maureen CarrollCourts Law
A federal judge is accused of misconduct and an investigation begins. Before the investigation has concluded, though, the judge leaves her post. What happens next? Does it create an accountability gap, and if so, how much should that concern us? These are the questions that Veronica Root Martinez takes up in Avoiding Judicial Discipline.
This topic is timely and important in light of the crisis of accountability in the modern federal judiciary. Federal judges’ work is high in status and low in transparency, in the sense that social and professional norms give them a great deal of power but allow them to operate mostly out of public view. Those conditions create fertile ground for sexual harassmentand other forms of misconduct, yet the federal judiciary has largely been left to police itself. Federal judges are exempt from workplace misconduct laws such as Title VII. Congress has the authority to impeach and remove them, but in 230 years, the House of Representatives has impeached fifteen judges and the Senate has removed eight. Continue reading "Judges Behaving Badly… Then Slinking Away"
Dec 10, 2020 Jennifer WrigginsTorts
Merle H. Weiner,
Civil Recourse Insurance: Increasing Access to the Tort System for Survivors of Domestic and Sexual Violence, 62
Ariz. L. Rev. 957 (2021), available at
SSRN.
The U.S. torts system features a large gap between intentional tort doctrine and actual remedies for intentional torts. Doctrine pronounces many injuries tortious and compensable—intentional torts including domestic violence and sexual violence are widespread—yet civil lawsuits for these torts continue to be rare. The reasons for this gap are not a mystery; they all relate to money. Merle Weiner’s important and well-researched article takes effective aim at this situation, meshing insights from civil recourse theory about the purpose of the torts system with empirical information about what survivors of these torts actually want (hint: it’s mostly not money). She uses these insights to shape the idea of a new type of insurance, ‘civil recourse insurance,’ that would much better support the purposes of the tort system and survivors’ goals than the current torts enforcement structure. Civil recourse insurance would be a type of legal expense insurance and would provide a policyholder with legal representation when a covered incident occurs.
The article takes civil recourse theory seriously in its assertions that the overarching purpose of tort law is to further accountability, empowerment, respect, deterrence, and even at times revenge, rather than to provide financial compensation. She applies these theses to the situation of domestic violence and sexual abuse survivors. For the most part, victims of these wrongs do not seek financial compensation. Instead, they more often seek accountability, empowerment, recognition, respect and deterrence. These kinds of remedies are not provided by the torts system as it exists because it is enforced by lawyers who seek financial compensation under contingent fee agreements requiring either insurance coverage or assets to make litigation worthwhile. Insurance exclusions for intentional acts, coupled with judgment-proof defendants, make tort litigation for these wrongs impracticable in our current system. But legal actions seeking accountability, empowerment, respect and deterrence would be possible under Weiner’s proposed ‘civil recourse insurance.’ The policyholder may want to file a lawsuit even if it will be uncollectible; may want assistance participating in the criminal justice system; or may want to have her or his harm recognized in a way that acknowledges wrongdoing. This new kind of insurance, modeled on a popular and successful type of insurance held by 40% of German households, would provide insureds with the resources to pursue these forms of recourse. Continue reading "Intentional Tort Remedies Grounded in Civil Recourse Theory: How Torts Can Fulfill its Promises Through a New Kind of Insurance"
Dec 9, 2020 Chao-Ju ChenEquality
Deborah A. Widiss,
Equalizing Parental Leave, 105
Minn. L. Rev. __ (forthcoming, 2021), available at
SSRN.
On Election Day, Colorado voters approved an initiative that makes Colorado the tenth state (including D.C.) in the U.S. to install a state-run paid family and medical leave insurance program. It will provide, among others, at least 12 weeks of paid time for childbirth and adoption, hence extending the entitlement of paid parental leave to Colorado workers who are not covered by the Federal Employee Paid Leave Act. Paid parental leave is increasingly considered to be a crucial measure to advance sex equality by transforming parenthood on double fronts: enabling working mothers to stay employed and paid while caring for children, and encouraging working fathers to provide hands-on infant care. Internationally, many countries have enacted various parental leave policies, which provide either equal amounts of leave to parents regardless of sex or distinct leave policies for mothers or fathers, while mindful of the risk that accommodating working mothers’ need for childcare without engaging working fathers in childcare will likely deteriorate the unequal division of childcare. It follows that a feminist inquiry into parental leave policies typically centers on the issue of which approach best promotes equal parenthood so that mothers do not shoulder the sole responsibility of childcare.
In Equalizing Parental Leave, professor Deborah A. Widiss argues that the above vision of equal parenthood is an incomplete picture. Widiss has examined the efficacy of different paid parental leave policies as an equality-promoting measure from a comparative perspective in a related article, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia (reviewed by Naomi R. Cahn on JOTWELL). Equalizing Parental Leave takes a step forward to shed light on the sex inequality of nonmarital families under U.S. parental leave laws. Both federal and state parental leave laws provide the same benefits to mothers and fathers, but they not benefit all families equally: families with two legally recognized parents are entitled to receive as much as twice the benefits of families with one legally recognized parent, and marital families are more protected than nonmarital families. Continue reading "Equality for Whom? Nonmarital Inequality and the Paradox of Parental Leave"
Dec 8, 2020 Guha KrishnamurthiCriminal Law
Samuel W. Buell,
Retiring Corporate Retribution, 83
Law & Contemp. Probs. __ (forthcoming 2020), available at
SSRN.
Can corporations be blameworthy? Can they deserve punishment? If so, can we actually give them their just deserts?
Yes, yes, and no. At least, that’s what Samuel Buell says in this new article, where he contends that we should dispense with the notion of retribution when considering corporate punishment. Buell’s principal idea is that corporations cannot be retributively punished, since they cannot “be harmed or set back in ways that could satisfy” the retributive requirements of desert. His novel theoretical challenge to retributivism in corporate punishment compels us to rethink how the criminal justice system should interact with corporations. Continue reading "Is Retributive Corporate Punishment Possible?"
Dec 7, 2020 Matt BodieWork Law
When enacted in 2008 at the end of the Bush Administration, the Genetic Information Nondiscrimination Act (GINA) seemed like it had come from the future. Although the hard-won result of over a decade of advocacy by Rep. Louise Slaughter of New York, GINA addressed a problem that seemed more hypothetical than real. Genetic testing had been around for a while, introduced to the public in part through the O.J. Simpson trial. It seemed unlikely, though, that employers or insurers would not only secure DNA testing but then use it to discriminate on the basis of genetic difference. Yes, it made sense as a plot for a science-fiction movie like Gattaca, but not as a depiction of current reality.
This assessment is largely borne out in the empirical results in GINA, Big Data, and the Future of Employment Privacy by Bradley Areheart and Jessica Roberts. Examining GINA cases from federal courts during the statute’s first decade of existence, Areheart and Roberts found a mere 48 unique GINA cases, only 26 of which involved terminations. Moreover, most plaintiffs failed to find relief, often losing because of fundamental flaws: they had voluntarily disclosed their genetic information; they could not prove the employer possessed the genetic information; or their information was not considered “genetic.” In fact, the authors “uncovered no cases alleging discrimination based on genetic-test results.” (P. 744.) The article makes a plausible case that GINA has been a failure—or, perhaps more charitably, addressed a nonexistent problem. Continue reading "The Unexpected Virtue of Congressional Ignorance"
Dec 4, 2020 Adam RosenzweigTax Law
In my experience, the hallmark of a good article is that, after struggling through a few close reads, I eventually (at times somewhat begrudgingly) conclude I learned something new and valuable. The hallmark of a great article, on the other hand, is when I reach the same conclusion but after a single, almost effortless feeling, read. The difference is a precision and clarity in writing, structure, and organization that only the confidence instilled from a deep understanding of a subject affords. Yet at the same time a small part thinks to myself – “it seems so obvious, why didn’t I think of it?” But of course, to paraphrase a famous movie line, “if I really had come up with the idea, then I would have written it.” But, as I eventually admit to myself, I didn’t.
Such was my experience reading When Data Comes Home: Next Steps in International Taxation’s Information Revolution (“When Data Comes Home”) by Shu-Yi Oei and Diane Ring. Oei and Ring are frequent co-authors, writing on subjects ranging from taxation of the sharing economy like Uber and AirBnB, to the role of large scale financial information leaks like the Panama Papers, to the impact of the Tax Cuts and Jobs Act on reshaping the workplace environment. I mention this only to emphasize what emerges as the particular strength of Oei and Ring’s collaborations – they combine backgrounds and methodologies and apply them to areas of common interest to uncover patterns or trends that otherwise might remain hidden. When Data Comes Home represents another successful example. Continue reading "Big Data and Small Politics: What is the Future of International Tax Law?"
Dec 3, 2020 Victoria J. HanemanTrusts & Estates
Bridget J. Crawford,
Blockchain Wills, 95
Ind. L.J. 735 (2020), available at
SSRN.
Disruptive technologies, like the Internet, often drive new social and organizational arrangements: we now enjoy global interconnectedness and an ease of communication that was previously the stuff of speculative fiction. Blockchain technology has the potential to be similarly transformative, with the Wall Street Journal characterizing blockchain as a foundational technology along the lines of electricity or the world wide web. Bitcoin was created in 2009 as a decentralized, immutable, open source method of peer-to-peer payment that uses a distributed ledger to track all transactions—and this process of recording transactions is what is known as “the blockchain.” Although blockchain technology has been bought into common parlance through its association with popular cryptocurrencies such as Bitcoin, the potential application and broad appeal of blockchain technology eclipses the purpose for which it was originally developed. Blockchain Wills by Bridget J. Crawford tackles the subject of blockchain technology as applied to will execution in an article that is unquestionably my favorite article of 2020.
The best analogy to describe blockchain is that of the tree in the forest. Every ring in the trunk of the tree is like a groove in a record and each groove memorializes important information: the age of the tree; water levels; disasters such as forest fires; rate of growth. Each ring evidences a new block of information related to a specific moment in time, and the information recorded on each ring is accessible and transparent because nobody owns the tree. Like the rings of a tree, a block on the blockchain is immutable. An earlier block is only changed through a later block. The information in each block is simultaneously public and private—the details of a transaction are recorded on the blockchain but the identity of each user is protected with a private key. The blockchain is transparent while also offering security and privacy. One may arguably have complete trust in a system that has removed human error from its process, with each transaction verified through a distributed network and the need for no intermediaries. Continue reading "The Disruptive Potential of Blockchain in the Law of Wills"
Dec 2, 2020 Kristen EichensehrTechnology Law
Martha Finnemore and Duncan B. Hollis,
Beyond Naming and Shaming: Accusations and International Law in Cybersecurity,
Eur. J. Int’l L. (forthcoming, 2020), available at
SSRN.
In recent years, states have begun accusing other states of cyberattacks with some frequency. Just in the past few months, Canada, the United Kingdom, and the United States have warned of Russian intelligence services targeting COVID-19 vaccine development, the United States issued an alert about North Korea robbing banks via remote access, and U.S. prosecutors indicted hackers linked to China’s Ministry of State Security for stealing intellectual property.
The flurry of cyberattack attributions raises questions about what effects (if any) they have and what effects the attributors intend them to have. In their forthcoming article “Beyond Naming and Shaming: Accusations and International Law in Cybersecurity,” Martha Finnemore and Duncan Hollis offer a nuanced set of answers focused, as the title suggests, on moving beyond the idea that the attributions are just intended to name and shame states. Continue reading "Cyberattacks, Accusations, and the Making of International Law"
Dec 1, 2020 Shelby D. GreenProperty
Zoning has long-been regarded as quintessentially a local matter. And, states usually defer to local governments believing that they have better information about local conditions, preferences, and practices. In his article, Professor Elmendorf shows how those preferences and powers often operate to undermine state interests, particularly in ensuring housing opportunities for all its needy residents.
In July 2020, President Donald Trump thrust the issue of zoning for housing on the national scene when he proudly announced: “I am happy to inform all of the people living their Suburban Lifestyle Dream that you will no longer be bothered or financially hurt by having low income housing built in your neighborhood.” The announcement came after the Department of Housing and Urban Development repealed the “Affirmatively Furthering Fair Housing” (“AFFH”) mandate, adopted by former President Obama, in fulfillment of the aims of the Fair Housing Act of 1968. Continue reading "Controlling the Locals from the Top Down and the Bottom Up for Housing"
Nov 30, 2020 Miriam CherryContracts
Jonathan F. Harris,
Unconscionability in Contracting for Worker Training, 72
Ala. L. Rev. __ (forthcoming, 2021), available at
SSRN.
During the 2020 coronavirus pandemic, many firms turned to remote and computer assisted arrangements to get work done remotely and safely. During the summer, however, jobless claims rose as the economy took a downturn. These economic pressures have driven many workers to seek job training or even re-training to protect themselves from the worst of the recession. Out of desperation, some workers are turning to code academies or bootcamps to learn new skills, while existing employers have in some instances started charging workers for the cost of new training.
In his forthcoming article, Unconscionability in Contracting for Worker Training, Jonathan Harris explores the contractual issues that arise when workers or job applicants are asked to pay for their training outside of traditional educational structures. This could arise through a training repayment agreement (TRA), which requires an existing employee to repay the employer a fixed sum expended on training if the worker quits or is fired during a set period of time. This Jot, however, will focus on the other setting in which these non-traditional training arrangements are arising, and which Harris discusses at some length in the second part of his article. These are the so-called Income Sharing Agreements (ISAs), which for-profit code academies use. ISAs are contracts that require the trainee to repay a set percentage of future income in exchange for the tuition that enables them to attend a computer coding academy or bootcamp. Continue reading "Income Sharing Arrangements and Coding Bootcamps: Boom or Bust for the Blue Collar Breadwinner?"
