Jul 14, 2020 Alexander Boni-SaenzTrusts & Estates
Andrew Gilden,
The Social Afterlife, 33
Harv. J. L. & Tech. 229 (2020), available at
SSRN.
The COVID-19 crisis has compelled many of us to move our lives (further) online, creating new social interactions and communities, as well as a larger digital footprint. The pandemic has also forced us to confront the risks and realities of mortality for ourselves and our loved ones. This highlights an important question: What will happen to our digital legacy after death? Legacy has both economic and noneconomic aspects, and inheritance law has primarily focused on the former. The latter, however, has risen to prominence with the growth of intellectual property rights and social media, both of which often have a stronger cultural or emotional legacy component. The law as it stands is thus ill-suited to deal with the noneconomic aspects of legacy. In The Social Afterlife, Professor Andrew Gilden tackles this problem with skill and nuance, and his sensible solution is to embrace contextual testation, in which control of each asset is allocated based on the unique socioeconomic context in which it arose. In the process, he provides the reader with an indispensable theoretical roadmap for understanding who might control our legacies.
The Article starts by describing four potential models of legacy stewardship. The first is the traditional model of freedom of disposition, in which the decedent controls who gets what. The decedent possesses the best information about their own social life, but such deference also risks too much dead hand control. The second model is family inheritance, in which control flows to the decedent’s family members. These individuals may also have special knowledge about the decedent, but are also tempted to exclude other relevant stakeholders in the decedent’s legacy, as many celebrity estates have. Empowering family members also hazards their exposure to harmful aspects of a decedent’s life hiding in cyberspace. Does a grieving widow want to know about her husband’s AshleyMadison.com account, on which he may have been pursuing affairs with younger women? Continue reading "Legacy Control"
Jul 13, 2020 Nicole Stelle GarnettProperty
The Fifth Amendment’s Takings Clause provides “nor shall private property be taken for public use without just compensation.” The Takings Clause therefore raises three distinct legal questions: First, when has property been “taken,” triggering the just compensation requirement? This is the question raised in “regulatory takings” cases. Second, to what extent does the clause prohibit takings except for “public uses”? This is the question raised in “public use cases,” when the government takes property by eminent domain with the intention of transferring it to a private party. These first two questions receive the most scholarly attention.
In the recent article What is Just Compensation?, Wangling Su provides a deep historical analysis and unique process-based focus on the third question triggered in Takings Clause analysis—what amount of compensation for property that is taken is “just”? This is the question raised whenever the government takes property, by eminent domain or otherwise, and property owners are entitled to be compensated for their loss. Continue reading "Just Compensation and the Jury"
Jul 10, 2020 Wendy Anne BachLexPoverty Law
At the time that I am writing this Jot, in late May 2020, the unemployment rate has climbed above 14%; COVID-19 has once again exposed persistent racial health disparities, and in the wake of the murders of George Floyd, Ahmaud Arbery, and Breonna Taylor, communities across the U.S. are rising in protest. Real too is that our country’s small (and largely regressive) provision of economic support, to those whose tentative hold on security was ripped out from under them this Spring, has all but dissolved. Given this searing new reality, one might think that counsel from scholars about the absurdity and cruelty of placing the burden of economic desperation on poor communities themselves would no longer be needed. Who would think, today, that the very communities of color reeling the most should shoulder the cost of their economic survival? Surely we are thinking more radically and more generously than that. But history does not counsel optimism. We know that neoliberal inequality functions through a pernicious combination of potent racialized myths and vigorous punitive and extractive legal systems.
So in this jot, written at this particular moment, and as one very small response to all that is unfolding around us, I want to highlight two pieces of scholarship that lay bare the viciousness of one aspect of those neoliberal systems: Tonya Brito’s The Child Support Debt Bubble and Abbye Atkinson’s Rethinking Credit as Social Provision. Both pieces critique social welfare policy that puts the burden of economic security onto the shoulders of those least able to sustain it. Without question, both pieces are exquisitely well done, and if this were normal times, my jot would focus entirely on what these papers argue and their undeniable strengths. And certainly all that is in order, but what I want to focus on, after summary and praise, is the relationship between private debt and public violence. Continue reading "Private Debt and Public Violence"
Jul 9, 2020 Laurel TerryLegal Profession
Leslie C. Levin,
The Politics of Lawyer Regulation: The Malpractice Insurance Example, 33
Geo. J. Legal Ethics __ (forthcoming, 2020), available at
SSRN.
If you ask most individuals why lawyers have a monopoly on the provision of legal services and why lawyer regulation exists, I suspect they would answer that lawyer regulation is necessary for “client protection.” Assuming this is correct, it is ironic that most U.S. jurisdictions do not require one of the most basic kinds of protection. Unlike lawyers in many other countries, most U.S. lawyers do not have to carry malpractice insurance, which could protect clients in the event of lawyer error.
Although several U.S. states have recently examined the issue of whether malpractice insurance should be mandatory, only two U.S. jurisdictions currently require lawyers to carry professional liability insurance. Oregon has had this requirement since 1977, and Idaho has had this requirement since 2018. Professor Leslie Levin’s article on The Politics of Lawyer Regulation: The Malpractice Insurance Example, which will be published soon in the Georgetown Journal of Legal Ethics, is a case study that examines and compares the mandatory malpractice insurance initiatives in these and other states. Her thorough and insightful article makes a compelling read, not only for those who are interested in the malpractice insurance issue, but also for those who are interested in other lawyer regulatory issues and wonder why some reforms succeed, whereas others fail. Continue reading "Understanding Lawyer Regulation Initiatives: Is there a Sweet Spot for Achieving Client-Focused Lawyer Regulation?"
Jul 8, 2020 Jedidiah KronckeLegal History
The intertwining of American foreign policy and American law has been a renewed topic of historical interest in recent years, with specific focus placed on the United States’ emergence as a global power at the turn of the 20th century. Rande Kostal’s Laying Down the Law dives deeply into perhaps the two most enduring symbolic episodes that came to shape popular and elite understanding of the place of American law in what many now call America’s informal empire: the post-World War II American occupations of Japan and Germany. Almost every subsequent American military action has to some degree invoked these interventions as precedents to justify efforts to export American legal models to foreign nations. For those working in this vein of international legal history, Kostal’s work has thus been long anticipated.
Kostal examines one aspect of the occupations of Japan and Germany comparatively within each of his six substantive chapters. His first two chapters deal with the details of the planning and occupation of each country, respectively, and his last four chapters the substance of reforms in constitutional law, court organization, criminal justice, and civil liberties. Undergirding all of these efforts was a general presumption that American liberal legality and the rule of law were central to American democracy and, thus, to democratization abroad. Conversely, there was a presumption that fascism and international belligerence sprung from the rejection of such values. Continue reading "Deconstructing the Foundational Mythologies of American Legal Empire"
Jul 7, 2020 Michael GreenJurisprudence
It is curious that Anglophone philosophers of law (many of whom have had some training in logic in conjunction with the classwork required for a Ph.D.) ignore deontic logic — the branch of logic that deals with propositions that employ normative concepts like obligation and permission. The point is not that deontic logic can answer problems in the philosophy of law, but that it can help reveal them. This very short paper by Robert Mullins is a wonderful example. It concerns the apparent incompatibility between a commonly accepted inference rule in deontic logic, deontic detachment, and the core principle of positivism, the social thesis.
According to deontic detachment, the following reasoning is valid (if the premises are true, the conclusion must be true): Continue reading "Deontic Logic and the Philosophy of Law"
Jul 6, 2020 Christina S. HoHealth Law
Govind Persad,
Expensive Patients, Reinsurance and the Future of Health Reform, 69
Emory L.J. __ (forthcoming, 2020), available on
SSRN.
We are in the midst of a health reinsurance “moment” right now. The idea of reinsurance, and in particular, government-sponsored reinsurance, rises to the fore in cycles, and our current rash of state-based reinsurance proposals signals that we’re in the ascendant phase. Reinsurance is at once a clever technocratic device but also a powerful conceptual frame. In the health context, government-sponsored reinsurance can take the form of a policy where the reinsurer, in this case the government, assumes the obligation to pay claims incurred by a given beneficiary once those claims exceed an annual attachment point. CMS has, for example, built in a de facto reinsurance policy for ACA plans, kicking in 60% of medical costs for any ACA plan enrollee who has incurred over a million dollars in claims. As you can see from this example, the primary insurers with this reinsurance protection are partially shielded from the risks of large catastrophic claims requiring excessive capitalization.
But government reinsurance also represents the distinctive structure of public-private power in our era. How is risk backstopped today, and under what conditions? When does an outcome count as catastrophic such that our existing risk management institutions cannot be expected to absorb it or hold reserves to meet it? Who gets a bail-out, and who must take the consequences of their bad bets? The question of who enjoys government reinsurance is a lens that helps us penetrate many of the mysteries of our current political situation.
Part of my engagement with the reinsurance moment is the pleasure I take in discovering interesting writing, past and present, on the subject of reinsurance. A new and enjoyable entrant in this category is Govind Persad’s new article, Expensive Patients, Reinsurance, and the Future of Health Care Reform, forthcoming in Emory Law Journal. Continue reading "Our Reinsurance Moment"
Jul 3, 2020 Kaiponanea MatsumuraFamily Law
Over the past four decades, people have increasingly turned to reproductive technologies to form their families. As technologies such as egg freezing, in-vitro fertilization, and pre-implantation genetic diagnosis have developed and improved, processes that were once left to chance are now subject to human control. As a result, what were once hopes—for instance, deferring childbearing until some point in the future, or having a male or female child—have transformed into expectations on the part of technology users.
Yet expectations are sometimes dashed because of avoidable human error, like mislabeling a sperm sample or failing to check liquid nitrogen levels in high-capacity freezers. As Dov Fox shows in his comprehensive new book, Birth Rights and Wrongs, courts have largely been unsympathetic to lawsuits stemming from these types of errors. Fox convincingly argues that courts should redress thwarted expectations about reproduction through the tort of reproductive negligence. Continue reading "Reproductive Exceptionalisms"
Jul 2, 2020 Christopher SloboginCriminal Law
Deborah Hellman,
Sex, Causation and Algorithms: Equal Protection in the Age of Machine Learning, 98
Wash. L. Rev. __ (forthcoming, 2020), available at
SSRN.
States have increasingly resorted to statistically-derived risk algorithms to determine when diversion from prison should occur, whether sentences should be enhanced, and the level of security and treatment a prisoner requires. The federal government has jumped on the bandwagon in a big way with the First Step Act, which mandated that a risk assessment instrument be developed to determine which prisoners can be released early on parole. Policymakers are turning to these algorithms because they are thought to be more accurate and less biased than judges and correctional officials, making them useful tools for reducing prison populations through identification of low risk individuals.
These assumptions about the benefits of risk assessment tools are all contested. But critics also argue that, even if these instruments improve overall accuracy, they are constitutionally suspect. While no instrument explicitly uses race as a “risk factor” (which in any event is probably barred by the Supreme Court’s decision in Buck v. Davis), several do incorporate sex (with maleness increasing the risk score) and many rely on factors that are highly correlated with race or socio-economic status, which is said to violate equal protection principles. Continue reading "Reconciling Risk and Equality"
Jul 1, 2020 Seth EndoCourts Law
David Freeman Engstrom & Jonah B. Gelbach,
Legal Tech, Civil Procedure, and the Future of Adversarialism, 169
U. Pa. L. Rev. __ (forthcoming, 2020), available at
SSRN.
Myriad examples—from the rise of chief technology officers in law firms to the over $1.6 trillion invested in legal tech start-ups in 2018 to the use of AI-assisted drafting tools by Walmart’s legal department—demonstrate how technology is inexorably changing the American legal profession and courts, despite their small “c” conservative nature. When Chief Justice John Roberts was asked whether “smart machines, driven with artificial intelligences, will assist with courtroom fact finding or, more controversially even, judicial decision making,” he replied, “It’s a day that’s here….” And the legal community’s integration of more mundane—if no less important—technological tools such as videoconferencing into its existing practices has been dramatically hastened by the COVID-19 pandemic. A prominent example of this trend was when the Supreme Court of the United States held its first telephonic hearing in May.
While legal scholars and the popular press frequently comment on these developments, even the most expansive futurist takes about robot judging focus on how lawyers and the judiciary are (or will be) using new technology to do their traditional work. And courts mostly wrestle with how to adapt existing doctrine to specific applications of new tools. Against this context, David Freeman Engstrom and Jonah Gelbach’s Legal Tech, Civil Procedure, and the Future of Adversarialism marks a significant theoretical push forward, identifying and exploring the overarching question of how legal tech and the civil justice system’s procedural rules mutually shape each other. Continue reading "Charting the Interactions of Legal Tech and Civil Procedure"
