Oct 5, 2020 Charles A. SullivanWork Law
Blair Druhan Bullock,
Uncovering Harassment Retaliation, __
Ala. L. Rev. __ (forthcoming, 2020), available at
SSRN.
Articles sometimes do an important service by exposing what seems obvious, but only in retrospect. Blair Druhan Bullock’s Uncovering Harassment Retaliation, forthcoming in the Alabama Law Review, does a great job of surfacing an issue that had previously received little attention in the law journals.
It’s not news that women have been, at least before #MeToo and probably still, reluctant to report harassment. Neither is it news that one reason is their fears of retaliation for invoking the employer remedial processes that have been put in place in the wake of the Faragher/Ellerth structure for employer liability. And it will come as no surprise that the courts have been remarkably unreceptive to claims of victims of sex harassment that delaying a report until the situation became unbearable was reasonable because of fears of retaliation. What is needed, and what Professor Bullock provides in Uncovering Harassment Retaliation, is an empirical basis for believing such fears are well grounded and not (as one might think from reading court opinions) paranoiac. Continue reading "What to Do About Well-Grounded Fears?"
Oct 2, 2020 David HortonTrusts & Estates
Shelly Kreiczer-Levy,
Big Data and the Modern Family, 2019
Wisc. L. Rev. 349 (2019), available at
SSRN.
In Big Data and the Modern Family, Shelly Kreiczer-Levy kicks the tires on a provocative idea: using big data to “personalize” the rules of intestate succession. Recently, scholars have suggested that the same miraculous technology that permits big retailers to predict their customers’ purchasing needs to customize the law. For example, in the first extended treatment of the topic, Ariel Porat and Lior Strahilevitz suggest that the government can exploit big data to abandon the conventional one-size-fits-all approach to default rules and instead tailor background principles to individual preferences. Porat and Strahilevitz’s marquee example is intestacy. They note that empirical studies reveal that married fathers are more likely than married mothers to leave their entire estate to their spouse. Thus, they argue that an intestate system that varied with the decedent’s gender would be more likely to carry out his or her intent. But why stop there? Porat and Strahilevitz claim that intestacy statutes could also vary based on the decedent’s job, wealth, health, length of marriage, and age of children. In fact, using an algorithm, a probate court could “determine how an intestate’s estate should be allocated based on an analysis of his consumer behavior during his lifetime.”
Enter Kreiczer-Levy. Her thoughtful article begins by arguing that the rules of intestate succession are outdated. Indeed, as she explains, these principles “are notorious for privileging the nuclear family, to the exclusion of modern forms of associations and relationships.” In turn, Kreiczer-Levy observes that this makes personalized intestacy intriguing. In sharp contrast to the bright lines and rigid barriers of current law, a bespoke regime could effectuate an intestate decedent’s wish to leave assets to a lover, a best friend, or a young person who was treated like a full-blooded child but never adopted. Continue reading "Personalized Intestacy?"
Oct 1, 2020 Rebecca TushnetTechnology Law
Which Western institutions aid and abet Chinese censorship? Major Internet companies probably come immediately to mind. In Peering down the Memory Hole: Censorship, Digitization, and the Fragility of Our Knowledge Base, Glenn Tiffert highlights an unexpected set of additional accomplices: scholarly archival platforms.
Tiffert shows that digitization makes it possible for censorship to disappear into the apparently limitless, but silently curated, torrents of information now available—adding a valuable example to Zeynep Tufekci’s catalog of ways that information is distorted online. He explains how “the crude artisanal and industrial forms of publication and censorship familiar to us from centuries past” may shortly give way to “an individuated, dynamic model of information control powered by adaptive algorithms that operate in ways even their creators struggle to understand.” Continue reading "Invisible Holes in History"
Sep 30, 2020 Steve GoldLexEnvironmental Law
All it took was a frequently lethal, highly infectious, globally distributed virus. In anxious self-protection, Homo sapiens drastically curtailed the planet-altering behaviors we call “economic activity.” The non-human parts of our ecosystems responded. Above cities, toxic and murky air cleared. Fossil fuel extraction sputtered; greenhouse gas emissions slowed. Wild animals returned to places from which they had long been exiled. Birds singing for mates vied more with each other and less with the drone of humanity. Even Earth’s own seismic rumbling sounded more distinctly against a diminished background of people’s percussive pounding.
The pandemic pause accomplished, however briefly, results that have eluded all the world’s environmental policy makers. These results reminded us just how tight the correlation is between the human economy and human environmental impact–and, by negative implication, exploded the myth that “sustainability” can be a pragmatic and achievable goal of environmental law. The Earth has shown that to sustain normal levels of human population and economic growth, ecosystems must absorb massive, deeply disruptive, perturbations. In Letting Go of Stability, Professor Robert Fischman rejects the sustainability shibboleth and thoughtfully explores the potential of resilience, rather than sustainability, to provide a conceptual anchor for environmental law in the decades ahead. Continue reading "Is Resilience Resilient?"
Sep 29, 2020 Charlotte CraneTax Law
Level-headed approaches are rare in discussions of how the administration of tax law should fit into the larger body of administrative law. Alice Abreu and Richard Greenstein’s Tax: Different, Not Exceptional is one of those rare exceptions. All too often, advocates have portrayed the question as having an all or nothing answer, coded as whether tax is “exceptional.” If yes, then the norms of administrative law don’t apply; if no, then they all apply. (And, for many, if these norms all apply, the vast bulk of the work product of the Treasury and the IRS is tainted and should be questioned by the courts.) Abreu and Greenstein persuasively point out that this approach is simply useless.
Careful observers should always have appreciated that neither position is supported by the existing statutory framework. For some aspects of tax administration, there are exceptions in the Administrative Procedure Act itself, and additional exceptions are provided in other titles of the United States Code. But as Abreu and Greenstein point out with reference to Sorites Paradox, a heap of exceptions is often only just that, a heap of discrete exceptions. Even if each of those exceptions is well-founded, they do not necessarily mean anything about the other items that could be removed from the pile, or even about the nature of the pile itself. The questions that remain, given this reality, relate to how these discrete exceptions should be interpreted, and whether these exceptions have any implications for items not covered by their specifics. Tax: Different should go a long way toward establishing this approach to answering these administrative law questions. Continue reading "Situating the Tax Law: Exceptions, Not Exceptionalism"
Sep 28, 2020 Robert GordonLegal Profession
I teach at a school most of whose graduates take jobs, at least for a few years, as associates in one of the 100 largest corporate law firms. Until their first stint as summer clerks, and even for some time thereafter, most of them know very little about the work firm lawyers do. Law schools don’t do much to enlighten them on these matters. Scholarly treatments of the social effects of business lawyering are rare. We have, of course, plenty of scholarship on substantive fields of business law – corporate law, tax, securities, intellectual property, and so forth. Sometimes practitioners come into our classrooms to help students understand how to structure corporate deals, such as a merger or initial public offering. These are useful forms of training, but not much help if we are trying to understand the social and economic contributions of corporate lawyers. What is their role in society? What value do they add or as their critics would ask, subtract? Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality, identifies both the positive and the negative in their work.
The business lawyers I habitually talk to tend to respond rather vaguely to questions about their social functions. They identify themselves as among the professionals in the legal-and-financial-services industry like accountants, underwriters, or insurers who provide technical services to implement business decisions and deals of their clients. “We grease the wheels of capitalism” is a common phrase, or, as a law firm partner interviewing me for a job once put it, “We are the pants pressers for American business.” This formula identifies the lawyers’ role as auxiliary to the real movers and shakers, the entrepreneurs and investment bankers and managers of capital. Other business lawyers describe their job primarily as that of risk-managers: they help their clients identify sources of “legal risk,” such as potential adverse litigation, or regulatory and tax consequences of decisions. Competent risk managers, of course, aren’t just doom-and-gloom merchants: they try to help their clients structure their dealings so as facilitate their taking “good risks” and to avoid or minimize “bad risks.” Still others – often litigators – identify corporate lawyers with the classic paradigm of the libertarian champion of the free market, or the heroic defense lawyer resisting the authoritarian state and the greedy faux-populist plaintiffs’ bar. Rather less flattering accounts are sometimes heard from businesspeople who cast lawyers as operators of a vast protection racket, creators of dense complex webs of regulation that their expensive technical skills are then required to navigate. Continue reading "Masters of the Code"
Sep 25, 2020 Sergio J. CamposCourts Law
The current global pandemic continues to disrupt our lives. But the pandemic has also inspired some pleasant surprises in the legal profession, ranging from humorous ways of engaging with law students to inventive ways of improving access to justice.
I want to highlight a particularly pleasant surprise for civil procedure scholars—the Civil Procedure Unavailability Workshop (the “Workshop”), a virtual workshop organized by Suzanna Sherry and Adam Steinman that has met weekly this summer and will continue monthly in the fall. (Full disclosure—Adam Steinman is the co-editor of the Courts section of JOTWELL, and I presented at the Workshop in early June). A full list of previous and upcoming presentations can be found here. Continue reading "Stay (Faraway, So Close!) in Touch with Civil Procedure"
Sep 24, 2020 Sarah SchindlerProperty
Deborah N. Archer,
“White Men’s Roads Through Black Men’s Homes”: Advancing Racial Equity Through Highway Reconstruction, __
Vanderbilt L. Rev. __ (forthcoming, 2020), available at
SSRN.
In recent months, citizens and elected officials around the country have been tearing down or ordering the removal of monuments that symbolize white supremacy and subjugation. While many of the targeted monuments are statues of people who supported or espoused racist ideologies, another set of more innocuous monuments to racial segregation still stand: America’s Highways.
In her forthcoming article, “White Men’s Roads Through Black Men’s Homes”: Advancing Racial Equity Through Highway Reconstruction, Professor Deborah N. Archer examines the way that the U.S. highway system served as a tool of segregation, both destroying and isolating Black communities. Continue reading "Tear It All Down: Highways as Racist Monuments"
Sep 23, 2020 Allison Brownell TirresLegal History
Elizabeth Sepper & Deborah Dinner,
Sex in Public, 129
Yale L. J. 78 (2019).
Advocates of equality breathed a sigh of relief when the Supreme Court issued its opinion in Bostock v. Clayton County, interpreting the word “sex” in Title VII to include employment discrimination based on gender identity and sexual orientation. Title VII is just one part of the sweeping and historic Civil Rights Act of 1964 (CRA), drafted primarily to help remedy the scourge of racial discrimination across various areas of public life. Representative Howard Smith inserted the word “sex” in Title VII towards the end of the drafting process, not as a means to sink the act (as the apocryphal story goes) but at the urging of feminist activists. Probably even more controversial than Title VII at the time of the CRA’s passage was Title II, prohibiting discrimination based on race, religion, or national origin in public accommodations. No lawmaker added “sex” to this provision, and it remains absent today in this provision of the statute.
Perhaps this absence helps to explain why legal historians have paid scant attention to the achievement of sex equality in public accommodation laws. Elizabeth Sepper and Deborah Dinner make a major corrective in their excellent article, Sex in Public. They present a broad-ranging and timely discussion of the wide variety of forms of sex-based discrimination in public life in the 1960s and 1970s. They recount the tireless efforts of feminist activists to dismantle these forms of sex segregation. Activists were motivated in part by a radical vision of sex integration that was never quite realized in the law. As the authors show, this recaptured vision has the potential to help to inform today’s fight for full inclusion of members of LGBTQ communities. Continue reading "Integrating Spaces: The Fight for Sex Equality in Public Accommodations"
Sep 22, 2020 Brian BixJurisprudence
Dan Priel,
The Philosophy of Law for a Naturalist: An Introduction to Artificial Law Theory, Osgoode Legal Studies Research Paper (June 12, 2020), available at
SSRN.
In this provocative article, Dan Priel offers a naturalist approach to thinking about law. This naturalist approach, in turn, leads to two ambitious lines of arguments: first, rejecting many traditional jurisprudential inquiries, and, second, providing a highly unconventional view about the relationship of morality and law.
Naturalism (not to be confused with “natural law theory”) has been defined in different ways. Early in the article, Priel offers a useful (if, as he notes, imprecise) summary: naturalism is the view that “explanation[s] of [human] actions should be continuous, and of the same kind as, explanation of the nonhuman part of nature.” (P. 2.) Naturalism within legal philosophy has, for some time, been associated with Brian Leiter. However, Priel criticizes Leiter’s approach as being little more than an argument for (existing) empirical work on law, while offering no tasks for legal philosophy. As will be noted, Priel agrees that naturalism rejects some traditional jurisprudential topics, but he believes that there remains room for, and, indeed, a need for, a distinctively naturalist jurisprudence. Continue reading "Dan Priel’s Naturalism"
