Nov 5, 2019 Jonathan SimonCriminal Law
The search for the precursors to contemporary mass incarceration in the U.S. has become one of the great legal, historical, and sociological debates of our times. Many of us have focused on two particular arcs of penal history in tracing the genealogy of mass incarceration. One is associated with the birth of the penitentiary and the police in the first third of the 19th century in the context of emerging capitalism (both slavery and free labor in the U.S.). From this perspective, mass incarceration has always been a part of the DNA of America’s form of racial capitalism. The other locates the genesis much closer to our own time in the political and economic crises of the late 20th century associated with the neoliberal transformation of the U.S. economy.
Laura Appleman’s article, Deviancy, Dependency and Disability, makes a convincing case for adding a third arc of history: one that focuses on the eugenic period of the early and mid 20th century as a crucial precursor for mass incarceration and that offers a comprehensive treatment of the eugenic influence on criminal justice policy and what she calls its “long tail.” Eugenics refers specifically to efforts to improve society by regulating births, but it also applies to a much broader range of policies influenced by core beliefs that many of the worst social problems facing America could be solved by segregating, sterilizing, or even eliminating the physically, mentally, and morally disabled. Appleman’s article builds on recent work of historians which has underscored the radical nature of America’s embrace of eugenic thinking and its enduring significance in fields like immigration, drug and alcohol policy, and criminal statistics. Continue reading "The Long Tail of Eugenics"
Nov 4, 2019 Marcia L. McCormickWork Law
James A. Macleod,
Ordinary Causation: A Study in Experimental Statutory Interpretation, 94
Ind. L.J. __ (forthcoming 2019), available at
SSRN.
Employment discrimination doctrine is a mess, and one of the messiest parts concerns causation. Problems with causation have been the focal point of many articles in recent years, often in response to the “tortification” of employment discrimination law. You might think that there is nothing more to say, and that we’re just stuck with the mess. But James Macleod’s article, Ordinary Causation: A Study in Experimental Statutory Interpretation has persuaded me that neither is true.
In this article, Professor Macleod breathes fresh life into interpretation of Title VII by using the tools of experimental philosophy to explore the meaning of “because of” and other statutory causal language. What better way to determine the ordinary public meaning of a phrase, particularly a phrase in context, than to survey a representative sample of the population, ask whether a particular result was because of the reason described in the statute, and then share that information publicly? Professor Macleod did just that, and his article makes a case for this approach and then reports on his results. Continue reading "Crowdsourcing Plain Meaning"
Nov 1, 2019 Asanga WelikalaInternational & Comparative Law
The challenges of democratic backsliding and institutional resilience have recently exploded onto the agenda of research scholarship across the social sciences, especially in world and economic history, comparative politics, and constitutional law. Tom Ginsburg and Aziz Z. Huq’s How to Save a Constitutional Democracy is one of the most lucid and authoritative accounts in this increasingly crowded yet scholastically sophisticated field.
As with many other such recent treatments, the catalyst for the book has been the election of President Trump in the United States, and many others like him in varying degrees and styles of strong leadership across the world. The challenge these leaders pose for established assumptions about the nature of political order are fundamental, the book argues, and not simply a transient choice of ordinary democratic competition. In varying degrees, these leaders and the movements they lead challenge the values of political liberty and cultural pluralism, the principle of government limited by laws of general application, and the norms of behaviour that flow from the distinction between political power and legal authority. Continue reading "Saving Constitutional Democracy from the Right (and the Left)"
Oct 31, 2019 Ruqaiijah YearbyHealth Law
Angela P. Harris & Aysha Pamukcu,
The New Civil Rights of Health: A New Approach to Challenging Structural Inequality, 66
UCLA L. Rev. __ (forthcoming 2019), available at
SSRN.
As of 2018, health disparities cost the U.S. $93 billion in excess medical costs and $42 billion in lost productivity per year. Since 1985, the federal government has recognized that there are health disparities, yet research and programs addressing these problems have focused on individual choice, ignoring the significance of structural inequality. Even when the government announced that health disparities were caused by the social determinants of health (SDOH), which are outside an individual’s control, it focused on solutions concerning individual choice. In The New Civil Rights of Health, Professor Angela Harris and Aysha Pamukcu argue that in order to address health disparities, we must understand that individual choice is limited by structural inequalities caused by subordination, “a set of policies, practices, traditions, norms, definitions, cultural stories, and explanations that function to systematically hold down one social group to the benefit of another social group.”
Subordination, particularly racial subordination, limits individual choice and control over access to health-promoting opportunities and resources. To address subordination and end health disparities, the authors suggest a partnership between public health advocates trying to address the SDOH and civil rights advocates trying to address structural inequality. Building on the work of other public health and critical race scholars, Harris and Pamukcu discuss the limitations of public health and civil rights laws to address subordination and propose a new “civil rights of health” that builds on the “health justice framework” to address subordination, which leads to health disparities. By adopting this new “civil rights of health,” advocates can help educate policymakers and the public about the health effects of subordination, create new legal tools for challenging subordination, and ultimately reduce or eliminate unjust health disparities. Continue reading "Individual Choice and Health Disparities: A Fallacy of Relevance"
Oct 30, 2019 Linda S. MullenixCourts Law
Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard,
Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions, NYU Law and Economics Research Paper No. 19-31 (July 15, 2019), available at
SSRN.
Stephen J. Choi, Jessica Erickson, and Adam C. Pritchard have authored a provocative empirical study of attorney fee awards in securities fraud class actions. Complementing an existing array of studies, they focus on the subset of mega-settlements—those in excess of $100 million dollars—such as the $186.5 million fee award in a securities action against Petroleo Brasileiro SA, in which the plaintiffs’ attorneys claimed to have worked 324,307 hours on the litigation to obtain a $3 billion settlement. Their conclusions are certain to provoke discussion, if not strenuous dissent: namely, that the lure of mega-fees in certain securities cases induces many lead counsel to make work, rather than to work hard.
The authors situate their study in the reforms Congress envisioned in enacting the Private Securities Litigation Reform Act of 1995 (“PSLRA”). This legislation limited fee awards in securities class actions to a “reasonable” percentage of the settlement. The study included every securities class action filed in federal court between 2005 and 2016, a total of 1719 cases, comparing fee requests and awards in the highest-stakes cases with those in other securities class actions. The authors wanted to test whether attorneys were investing more time in high-stakes cases and if the needs of these cases drove the expenditure of additional time or merely rove the desire to justify a higher fee award. Continue reading "Is Greed Good? Mega-Fees in Securities Fraud Class Action Mega-Settlements"
Oct 29, 2019 Nancy LeongEquality
Asad Rahim,
Diversity to Deradicalize, available at
SSRN.
It is difficult to say anything new about affirmative action. Scholars have analyzed the effect of affirmative action on white students and on people of color through the lenses of many disciplines. They have considered the philosophical consequences of a system that takes account of race in comparison to one that is race blind. They have asked whether a system can be race blind. Perhaps more than any other topic, scholars have exhaustively discussed diversity. The focus is not surprising, given that diversity is the only rationale for affirmative action that will withstand strict scrutiny, absent a narrow exception for institutions attempting to remedy their own past discrimination. But to offer anything new about diversity is a difficult task.
Despite the rich work already available, in Diversity to Deradicalize Asad Rahim offers a provocative and novel addition to the affirmative action canon. His sharp look at Bakke and diversity hones in on the father of the diversity rationale, Justice Lewis Powell. Justice Powell’s solo concurrence in Bakke v. Regents of the University of California first articulated the diversity rationale for lower courts and institutions of higher learning. Powell’s opinion has drawn praise and criticism. Some saw it as a unifying opinion that furthered racial harmony by demonstrating that integration is good for those of all races. Others have criticized the diversity rationale for affirmative action as ahistorical, ignoring centuries of racial injustice in favor of a rationale that emphasized what people of color could do for white people. Whatever their beliefs, litigants have found themselves advocating forcefully for the merits of diversity in order to preserve affirmative action at state schools. Continue reading "Revisiting Justice Powell’s Affirmative Action Legacy"
Oct 28, 2019 Lauren ScholzContracts
Just after the turn of the millennium, it was common to hear the burgeoning data economy ethically justified through the following refrain: “If you’re not paying for it, you’re the product.” Consumers, wittingly or unwittingly, pay for free services by giving companies access to their personal information and data logs.
Nobody says that anymore. Stacy-Ann Elvy’s excellent article, Commodifying Consumer Data in the Era of the Internet of Things explains why. No matter how much you pay, under current US law you’re the product if the company’s privacy policy says so. A company’s privacy policy typically is not in the contract consumers agree to and can be changed at any time. Elvy cites a study that estimates that by 2020 companies will be able to earn more profits by transferring and disclosing consumer Internet of Things (IoT) data than by selling IoT devices to the consumers themselves. This includes cars, typically the most expensive good most consumers ever purchase. Continue reading "Paying to be the Product"
Oct 25, 2019 Smita GhoshConstitutional Law
Katherine Shaw,
Speech, Intent, and the President, 104
Cornell L. Rev. __ (forthcoming 2019), available at
SSRN.
What happens to presidential statements in court? Recently, litigants have sought to use public statements—including tweets—by President Trump to challenge the various iterations of the travel ban, the prohibition against transgender individuals in the military, and the administration’s decision to withhold cost-sharing reductions from health insurance issuers. As Katherine Shaw makes clear in Speech, Intent, and the President, forthcoming in the Cornell Law Review, courts lack a clear interpretive framework for evaluating the president’s speech. In Trump v. Hawaii, for example, the majority largely set aside the presidential statements that the plaintiffs had assembled as proof that the President’s proclamation violated the Establishment Clause. Justice Sotomayor, by contrast, catalogued these statements in her dissent to conclude that the ban was “driven by anti-Muslim animus.”
Shaw’s is one of several new articles to take on the issue of Presidential speech in the courts. Shaw’s own Beyond the Bully Pulpit: Presidential Speech in Courts, the subject of a jot last year by Mila Sohoni, exemplified this new area of scholarship and established Shaw as a leader in the field (in addition to co-host of the fabulous Strict Scrutiny podcast). In Beyond the Bully Pulpit, Shaw argued that Presidential speech was mostly aimed at “political storytelling” and therefore inappropriate for judicial reliance. There were several exceptions, though, one of which is the subject of this article. The focus on this exception—speech used to indicate presidential intent—makes Shaw’s work timely indeed. In addition to addressing longstanding questions in administrative and constitutional law, Speech, Intent, and the President puts forth a coherent proposal for when and how courts should consider presidential speech to determine intent. Her proposal may come in handy as readers struggle to evaluate legal battles surrounding the Trump administration. Continue reading "Presidential Speech in Court"
Oct 24, 2019 Carole SilverLegal Profession
The new Global 100 law firm ranking is out, and it reports that Big Law is thriving. Despite challenges and change experienced by elite law firms, there is a continuing—indeed growing—appetite for the work of Big Law’s global actors. For example, gross revenue for the firms on the list grew by more than 8% in 2018, “a step up from 2017’s already robust 6.7% growth and a showing that dwarfs the 2.8% and 3.1% growth from the two preceding years. These firms brought in a collective $114.2 billion, more than the 2018 gross domestic product of Ecuador, the 60th largest economy in the world.” And despite the turbulence over the last decade in the market for legal services in which Big Law participates, these law firms have deepened their footprint internationally: the firms on the Global 100 list have added nearly 200 additional offices outside of the U.S. and more than 6,600 lawyers during the decade ending in 2019.
But what does it mean to be a global “firm” for purposes of the Global 100? Most law firms on the Global 100 reflect an organizational structure that uses offices as the connective tissue of the firm, but the notion of a law firm as a coherent organization glosses over important differences that suggest the rankings of firms are as much about pretense as reality. Jing Li takes on this topic in a new article, All roads lead to Rome: Internationalization strategies of Chinese law firms, where she analyzed the websites of 123 China-based law firms in order to assess how their internationalization strategies compare to the expectation of the one-firm-integrated-office model. Continue reading "Global Rankings of Global Firms and the Distance between Formality and Reality"
Oct 23, 2019 Leigh OsofskyTax Law
In recent years, legal scholars have begun to focus in earnest on the realities of the legislative process. Just to name a few topics, this research has included studies about congressional drafting and canons, agency involvement in legislative drafting, how legislative drafting has changed over time, how statutory drafters make discrete drafting decisions, and much more. Understanding these realities is essential to how we use, and make meaning of, the statutes that pervade our legal system.
Jesse Cross’s recently published article, The Staffer’s Error Doctrine, is an important contribution to this body of work. In this article, Cross provides a deep account of how Congress has come to rely upon what Cross calls a “staffer delegation model.” Cross explains that Congress has not always relied so extensively on congressional staff to draft legislation. Rather, Congress previously used a mix of committees and delegation to agencies. Cross argues that concern over executive power, along with expanded internal bureaucracy, has prompted Congress instead to increasingly turn to an army of congressional staffers to draft legislation. As Cross explores, members of Congress have acknowledged that this turn to staffers gives staffers not only clerical tasks, but also significant power to make policy through legislation. And, as Cross persuasively argues, this is a systematic byproduct of a Constitution that creates generalist legislators, notwithstanding a world that increasingly requires subject-matter experts to create good law. Continue reading "Constructing Doctrines for Modern Legislative Realities"
