Jul 28, 2020 Jordan SingerCourts Law
Court systems are large, complex, diverse, and resource-dependent organizations, a condition that shapes their character and behavior. It is surprising, then, how often court leaders fail to account for the organizational perspective in their decisionmaking. Amnon Reichman, Yair Sagy, and Shlomi Balaban illustrate this phenomenon, showing how the visionaries behind Legal-Net, Israel’s cloud-based judicial management system, were plagued by their failure to place its development in a broader organizational context.
Reichman and his colleagues trace the Israeli courts’ development of Legal-Net over two decades. Their research reveals a court system brimming with confidence that technology could be used to regulate judicial behavior, but insufficiently appreciative of the challenges of technological integration. The first version of Legal-Net was a flop: complicated and ambitious, it was a poor fit with existing court culture. A subsequent version better accounted for the court system’s unique character, but court leaders failed to anticipate how significantly its implementation would affect that character. In fact, the authors explain, the introduction of Legal-Net “heralded a tectonic shift in the judiciary’s work culture and work patterns,” as judges tailored their behavior toward the system’s incentives and away from their traditional roles. Today, it seems, the Israeli courts work for Legal-Net as much as Legal-Net works for them. Continue reading "The Machinery of Justice"
Jul 27, 2020 Kenneth W. SimonsTorts
Kenneth S. Abraham & G. Edward White,
Conceptualizing Tort Law: The Continuous (and Continuing) Struggle __
Maryland L. Rev. __ (forthcoming 2020), available at
SSRN.
Like Gaul, tort law is divided into three parts: torts of intent, negligence, and strict liability. At least, that is what most torts professors teach and what many scholars, judges and practitioners suppose.
In an engaging, lively, and perceptive article, Professors Abraham and White remind us that this tripartite division is descriptively inadequate for characterizing the variety of individual torts recognized today. They further claim that this plethora of distinct torts is a disorganized, fragmented mess. They then surprise the reader with a provocative conclusion: tort law is incapable of principled organization. The authors provide solid evidence of their descriptive thesis. Their critiques of the inevitability of this unprincipled disorganization are more controversial, for reasons that I will later suggest. Continue reading "Is Tort Law Hopelessly Fragmented?"
Jul 24, 2020 Bethany BergerLexNative Peoples Law
What can Federal Indian Law offer public law as a whole? Supreme Court justices have famously dismissed Indian Law cases as “chickenshit” and “pee wee” cases, and scholars have worked for generations to justify the meager recognition of tribal sovereign interests within public law. Maggie Blackhawk’s wonderfully generative Federal Indian Law as Paradigm, however, convincingly argues that Indian law, far from an idiosyncratic backwater, is central to the history of public law in the United States and can provide valuable lessons for framing its future.
First, Blackhawk masterfully synthesizes the work of many scholars (including her own work on the Petitions Clause) to show the role federal Indian affairs has played in the history of government power. Indian affairs were central for the founding generation, figuring prominently in the debates over the Constitution and the early work of Congress and the Executive Branch. Concerns about foreign interference with tribal diplomacy, for example, inspired the first understanding that the Senate’s advice and consent role with respect to treaties included only approval after the fact rather than participation in negotiations. Continue reading "Re-Centering Federal Indian Law"
Jul 23, 2020 Tom C.W. LinCorporate Law
Yonathan A. Arbel, Payday, 96
Wash. U.L. Rev. 1 (forthcoming 2020), available at
SSRN.
The unfolding pandemic has been an incredible change agent. In business, it has upended the rhythms and routines of work and operations in pedestrian and profound ways. It has accelerated anticipated changes and forced unforeseen changes. It has pushed us to examine and re-examine what was normal and necessary in the old ways we work, in the old operations of our businesses.
In his forthcoming article, Payday, Professor Yonathan Arbel examines the old, longstanding business practice of payday. In particular, he looks into why so many workers only get paid on one day for their continuous daily labor despite numerous advances in financial technology. As he succinctly put it at the start of his article:
While trillions of dollars are exchanged in online transactions—safely, cheaply, and instantaneously—workers still must wait two weeks to a month to receive payments from their employers. In the modern economy, workers are effectively lending money to their employers, as they wait for earned wages to be paid. Continue reading "A New Payday(s)"
Jul 22, 2020 Shawn BayernContracts
Theresa Arnold, Amanda Dixon, Madison Whalen, & Mitu Gulati,
The Myth of Optimal Expectation Damages, __ Marquette L. Rev. __ (forthcoming), available at
SSRN.
Everyone knows that the expectation measure is the standard, default measure of damages for a bargain contract, and for the last few decades most scholars have regarded the expectation measure as backed by weighty, straightforward justifications grounded on economic efficiency. But there are several reasons to doubt both of these general propositions, as the authors of The Myth of Optimal Expectation Damages nicely suggest and begin to demonstrate using empirical data from bond markets.
As doctrinal background, the expectation measure is not in fact as widely established as the default damages measure in contract law as many teachers of Contracts suppose. It’s true that it’s one standard measure, but the law uses other defaults in several important and often neglected contexts. For example, in many states, buyers of real estate don’t get expectation damages for breach by the seller unless the breach is in bad faith; instead, the buyer is often limited to reliance damages (and often quite a limited subset of reliance damages). Similarly, doctrines that are commonly regarded as non-remedial, like doctrines of mistake, increasingly lead to remedies other than expectation damages. Continue reading "A Crisis of Faith in (the Efficiency of) Expectation Damages"
Jul 21, 2020 Joseph SeinerWork Law
Perhaps one of the biggest drawbacks in the current legal academic literature is its disconnect with the scientific community. Social science and scientific research have so much to offer the legal academy, but too often this wealth of valuable information goes overlooked and unnoticed. This information can be particularly instructive to workplace law, as scholars continue to explore the driving forces behind discriminatory bias, employer motivations and other related issues.
In her fascinating piece, Acting Differently: How Science on the Social Brain Can Inform Antidiscrimination Law, Professor Susan Carle (American University) helps bridge this gap between the legal workplace literature and the academic sciences. The article is the last in a wonderful trilogy Professor Carle has written on discrimination and human behavior. I highly recommend the other two articles as well, which are available here and here. Continue reading "Workplace Law, Social Neuroscience, and the Right to be Different"
Jul 20, 2020 Eloise PasachoffAdministrative Law
What happens when Congress enacts a permanent commitment to pay for some ongoing activity, but then fails to appropriate the funds necessary to do so? Until recently, this phenomenon was almost unheard of. But contemporary examples abound. For example, Congress failed to fund different two different provisions of the Affordable Care Act that had committed the federal government to pay insurers through the “risk corridors” program and through “cost-sharing reductions”; failed to fund tribes who had elected under the Indian Self-Determination and Education Act to provide services that had previously been provided by the federal government; and failed to fund the Children’s Health Insurance Program, a complex cooperative federalism program that is deeply entrenched, albeit in different ways, in states’ health care coverage for children. These examples either reflect or generate inter-branch conflict, implicating the executive branch, and often courts, in what may at first glance seem to be simply an intra-legislative breakdown.
We need a vocabulary to identify and describe this phenomenon and a framework through which to understand and assess it. Matthew Lawrence’s new article Disappropriation does just that. Continue reading "When the Government Breaks Its Financial Promises"
Jul 17, 2020 Mireille HildebrandtTechnology Law
No, law does not necessarily lag behind technological development. No, smart technologies are not destined to lead the road to either freedom or surveillance. Determinisms of any kind are not what make Julie E. Cohen’s Between Truth and Power: The Legal Constructions of Informational Capitalism a great sensitizer to the mutual transformations that law, economy, power and technology affect.
Instead, the underlying thesis of the book is that to come to terms with the systemic harms of informational capitalism, we need to develop a keen eye for the precise way that legal rights, duties, immunities and powers are deployed and reconfigured to enable the move from a market to a platform economy —while also detecting the emergence of novel entitlements and disentitlements outside Hohfeld’s framework. Steering clear of both technological and economic determinism, Cohen argues that the instrumentalization of legal institutions by powerful economic actors requires new types of Polanyian countermovements, to address and redress outrageous accumulation of economic power. Continue reading "Countermovements to Reinstate Countervailing Powers"
Jul 16, 2020 David FagundesIntellectual Property Law
Robert Brauneis,
Copyright, Music, and Race: The Case of Mirror Cover Recordings, available at
SSRN.
Several scholars have shown that while copyright law may appear facially race-neutral, in its application many of its provisions perpetuate systemic discrimination, particularly against African American creators. K.J. Greene, Funmi Arewa, and Candace Hines have each argued that seemingly harmless features of copyright law can interact with industry practices to operate to the disadvantage of African American authors. The pre-1978 copyright statutes, for example, required authors to navigate a series of formalities in order to vest their exclusive rights. Greene has shown that these provisions tended to deprive copyrights disproportionately to African American authors, who were less likely to have access to legal information and advice necessary to navigate the requisite technicalities.
Bob Brauneis’ article, Copyright, Music, and Race: The Case of Mirror Cover Recordings, builds on this work by providing a detailed case study of one particular instance in which apparently race-neutral copyright law combined with entertainment law norms to discriminate against African American creators: the so-called “mirror” cover recording, a practice where white performers would create nearly identical versions of sound recordings by African-American artists. Brauneis’ work consciously styles itself as an effort at historical recovery, which is valuable because it revivifies a time in the history of the music industry that has been largely forgotten. Continue reading "Discriminatory Impacts of Facially Neutral Copyright Laws"
Jul 15, 2020 Susan MorseTax Law
Mark Gergen,
A Securities Tax and the Problems of Taxing Global Capital (June 2, 2020), available at
SSRN.
The federal government’s spending to try to contain the economic fallout from the COVID-19 pandemic already approaches $3 trillion. It will cause U.S. national debt to exceed GDP for the first time since World War II. The current crisis has emphasized deep distributive justice concerns and raised calls for more public spending to help address them. Such public spending is important and necessary, but there is a question of how to pay for it. Taxing wealth and capital income can be part of the solution. These are systematically undertaxed, even though careful analysis demonstrates that wealth taxation would not create an unacceptable drag on the economy.
Within the broad wealth and capital income tax literature, Mark Gergen’s work offers a particularly clever and tidy approach to taxing capital. He proposes a securities tax to reach capital touched by the public market. This tax would be collected and remitted by market participants like public corporations. A complementary tax on imputed normal returns would reach private capital. Gergen recently posted A Securities Tax and the Problems of Taxing Global Capital, which describes international issues raised by his proposal. This paper follows on a 2016 article, How to Tax Capital, which covers the fundamentals of his idea. Continue reading "Raising Revenue by Taxing Capital"
