Oct 9, 2019 Eboni NelsonContracts
When one enters into a contractual agreement with another, expectations are created on both sides. Party A expects to receive something from Party B, and Party B expects to receive something in return from Party A. When courts become involved in contractual disputes, ensuring the fulfillment of these expectations is often one of their primary goals. The pursuit of this goal, however, must be balanced against other contracts principles, particularly those related to defenses against the enforceability of contracts. Professor Grace Giesel explores the balance between expectations and enforceability in her recent thought-provoking article, A New Look at Contract Mistake Doctrine and Personal Injury Releases.
Professor Giesel’s article begins with an informative discussion about the terms typically included in a personal injury release agreement. In particular, she notes that such agreements often require the injured party to relinquish “claims for all injuries relating to the incident whether those injuries are known or unknown” (P. 542) and whether those injuries have presently developed or will develop in the future. When those unknown injuries manifest themselves after the execution and payment of the release agreement, parties seek to invoke the mistake doctrine to challenge the enforceability of the agreement in their efforts to recover for additional related injuries. As Professor Giesel argues, injured parties will have a steep uphill battle to successfully make a case for mutual or unilateral mistake under such circumstances. Continue reading "Rectifying “Mistaken” Applications of the Mistake Doctrine to Personal Injury Releases"
Oct 8, 2019 Elizabeth JohCriminal Law
If you were asked to design a DNA database to help solve crimes in a democratic society, what features would you include? Legislative debate about the desirability of such a database would be a start. Whether such a DNA database would be justified by a cost-benefit analysis, with all potentially affected constituents having had a voice in the process might be another consideration. Appropriations for this hypothetical database might be conditioned on regulations intended to safeguard against abuse, to protect civil liberties, and to avoid scientific errors. And the mass collection of DNA presumably would not continue without clear evidence of its public safety benefits.
The District Attorney in Orange County, California has maintained its own DNA database since 2007. And it exhibits none of these features, as Andrea Roth’s article demonstrates. While there has been some journalistic and scholarly attention to the Orange County District Attorney’s (OCDA) database, Professor Roth’s work is the first to rely upon original field research, including court observations, public records disclosures, and interviews with all kinds of people familiar with the program, including affected defendants. The piece is remarkable and fascinating, both in its particulars, and what it can tell us about the dangers of other programs that may bear resemblances to it. Continue reading "An Anti-Democratic Mix of Secrecy, Unaccountability, Technology, and Surveillance"
Oct 7, 2019 Helen NortonConstitutional Law
The government enjoys enormous capacities to collect, publish, and disseminate a vast array of data. In a healthy democracy, we hope and expect that the government will share that information to inform, encourage, and inspire the public’s debate and dialogue. Indeed, as Jack Balkin suggests, democratic states should aspire to be “information gourmets, information philanthropists, and information decentralizers.” Too often, however, the government instead skews or stifles the public’s discourse by manipulating data or by denying access to it.
Nathan Cortez adds to our understanding of these dangers by describing the government’s instruments of information control—what he calls “information mischief”—along with their uses and abuses. More specifically, Cortez identifies these tools to include stripping certain online data, terms, and topics from the public domain; abandoning data collection in key areas; censoring scientists and other data experts employed by the government; and invoking transparency as a pretext for declining to cite and rely on sound science (Cortez describes this as “weaponizing transparency”). Continue reading "The Uses and Abuses of the Government’s Tools of Information Control"
Oct 4, 2019 Binyamin BlumLegal History
As a procedural field, evidence law is often portrayed as technical and even arbitrary; the handmaid of substantive law. Orna Alyagon-Darr’s new book, Plausible Crime Stories: The Legal History of Sex Offences in Mandate Palestine, dispels this notion, highlighting the ways in which evidence law—and procedure more generally—provides a reflection of the societies in which they operate, and may therefore serve as a rich source of social history. Precisely because procedural law is often depicted as morally and culturally neutral, it offers inadvertent clues to the thought process of various legal actors which substantive legal fields do not. In this book Alyagon-Darr, the author of Marks of an Absolute Witch (a study of witchcraft trials in sixteenth to eighteenth century England, the rules of evidence that governed them, and the social context these rules convey), turns her keen eye for fascinating and unusual details to another period and place: the interwar Middle East.
Plausible Crime Stories offers a fascinating analysis of the colonial archive of sex offenses in the Middle East during the interwar period. Based on 147 cases decided in the Haifa District between the years 1933-1948, Alyagon-Darr recounts the social and political histories of sex crimes in Mandate Palestine. To provide a richer and broader context, Alyagon-Darr also skillfully employs media coverage, in English, Arabic and Hebrew, to tease out public opinion towards such criminality within each of Palestine’s communities. Continue reading "Plausible Crime Stories: The Legal History of Sex Offences in Mandate Palestine"
Oct 3, 2019 Margot KaminskiTechnology Law
Software crashes all the time, and the law does little about it. But as Bryan H. Choi notes in Crashworthy Code, “anticipation has been building that the rules for cyber-physical liability will be different.” (P. 43.) It is one thing for your laptop to eat the latest version of your article, and another for your self-driving lawn mower to run over your foot. The former might not trigger losses of the kind tort law cares about, but the latter seems pretty indistinguishable from physical accidents of yore. Whatever one may think of CDA 230 now, the bargain struck in this country to protect innovation and expression on the internet is by no means the right one for addressing physical harms. Robots may be special, but so are people’s limbs.
In this article, Choi joins the fray of scholars debating what comes next for tort law in the age of embodied software: robots, the internet of things, and self-driving cars. Meticulously researched, legally sharp, and truly interdisciplinary, Crashworthy Code offers a thoughtful way out of the impasse tort law currently faces. While arguing that software is exceptional not in the harms that it causes but in the way that it crashes, Choi refuses to revert to the tropes of libertarianism or protectionism. We can have risk mitigation without killing off innovation, he argues. Tort, it turns out, has done this sort of thing before. Continue reading "Lessons from Literal Crashes for Code"
Oct 2, 2019 Charles A. SullivanWork Law
Orly Lobel,
Gentlemen Prefer Bonds: How Employers Fix the Talent Market,
Santa Clara L. Rev. __ (forthcoming, 2019), available at
SSRN.
Professor Lobel begins by analyzing the various mechanisms by which employers diminish their workers’ options—and thus limit worker bargaining power for better compensation and benefits—by circumscribing their post-employment freedom of action. Of course, formal noncompetes are old news (even as a number of jurisdictions are taking steps to rein them in), and the use of horizontal wage-fixing and no-poaching agreements has gotten the renewed attention of the antitrust folk. But Lobel reminds us that employers can be incredibly creative in attempting to limit the mobility of their workers. Thus, she identifies restraints in the franchise setting and among sports and other associations. For example, class actions are pending against a range of fast food franchises whose agreements bar one franchisee from hiring another’s employees. She also stresses that customer nonsolicitation clauses can often be as effective as formal noncompetes since it may well be impossible to compete in a given geographic area without soliciting your former employer’s customers. Similarly, nondisclosure agreements are often drafted to protect far more information than trade secret law would reach, and “holdover” clauses— giving an employer the right to a former employee’s inventions made after the employment has terminated—reduce the value of creative workers to prospective new employers.
The effect of these and other “mobility penalties” is to decrease employee options, which not only restrains workers from taking higher paid jobs with competitors but thereby also reduces their bargaining power with their current employer. Needless to say, reducing competition among employers tends to depress compensation. On a macro level, Professor Lobel argues that these kinds of competition-dampening mechanisms may be partly to blame for the failure of wages to keep up with improving economic conditions and thus contribute to growing income inequality. Even more interestingly, she explores the effects of such employer tactics to lower wages on certain groups, most saliently the perpetuation of the gender gap in compensation. For a variety of reasons (“the need to coordinate dual careers, family geographic ties, and job market re-entry after family leave” (P. 18)),women are less mobile than men. That means that artificial restraints are likely to have disproportionately adverse effects on them since an already limited range of choices is further narrowed, perhaps to zero. Similar points can be made about older workers and minorities. While wages tend to be depressed for all workers by agreements that limit their ability to vote with their feet, some groups are more likely than others to suffer worse consequences. Continue reading "Dissolving Bonds"
Oct 1, 2019 Nadia SawickiHealth Law
Recent reporting has drawn public attention to a crisis in U.S. maternity care. Concerns include the extensive use of C-sections and other medical interventions in hospital births, high rates of maternal mortality and morbidity, racial disparities in maternal and fetal outcomes, and the increase in planned home births. While many factors contribute to these problems, one rarely acknowledged factor that Professor Elizabeth Kukura highlights in her 2018 article of the same name is the phenomenon of obstetric violence. Examples of obstetric violence include performing interventions (such as C-sections, episiotomies, and artificial rupture of membranes) on birthing patients against their express refusal; coercing patients to accept such interventions by threatening them with withdrawal of care or legal action; physically restraining birthing patients with no medical justification; verbally disrespecting patients in labor; and questioning competent patients’ medical decisions.
The phenomenon of obstetric violence raises a host of questions about law, policy, and medical ethics–but to date, it has received limited attention from U.S legal scholars. Kukura’s Obstetric Violence is the type of foundational article that clearly and effectively lays the groundwork for continued scholarship in this area. Anyone interested in health law, tort law, reproductive privacy, feminist jurisprudence, or the intersection of law and medical ethics would be well-advised to read this piece and cite it extensively. Continue reading "The Dark Side of Childbirth: A Failure of Both Law and Medicine"
Sep 30, 2019 Kristin HickmanTax Law
Jonathan H. Choi,
The Substantive Canons of Tax Law, 72
Stan. L. Rev. ___ (forthcoming 2020), available at
SSRN.
Jurists and legal scholars who think about methods and approaches for resolving questions of statutory meaning like to talk about traditional tools of statutory interpretation and the metaphorical toolbox in which those tools are kept. Textualism versus purposivism; the relative merits of text, history, and purpose; and the meaning and utility of both semantic and substantive canons are all common fodder for discussion and debate. Adding to the literature at the intersection of statutory interpretation and tax, Jonathan Choi offers an interesting and thorough treatment of why we ought to think of tax anti-abuse doctrines like the economic substance doctrine, the step transaction doctrine, and the assignment-of-income doctrine as substantive canons of statutory interpretation. (Helpfully, Choi provides a nice appendix, including footnotes, in which he catalogues substantive tax canons, including a couple of “not a canon” entries.)
Choi begins his article by surveying all of the reasons we ought to be dissatisfied with the status quo of tax anti-abuse doctrines. Courts and the IRS do not apply tax anti-abuse doctrines consistently. The Internal Revenue Code’s own terms sometimes contradict a particular tax anti-abuse doctrine, for example by requiring form to trump substance notwithstanding the doctrine preferencing substance over form, exacerbating the difficulty. Also, because tax anti-abuse doctrines are purposivist by nature and origin, they do not mix very well with the more textualist approach to statutory interpretation adopted by contemporary courts. Overall, the picture that Choi paints of tax anti-abuse doctrines is one of confusion and inconsistency. Continue reading "Refashioning Anti-Abuse Doctrines As Substantive Canons"
Sep 27, 2019 Christopher WalkerAdministrative Law
Tara Leigh Grove,
Presidential Laws and the Missing Interpretive Theory, 168
U. Pa. L. Rev. __ (forthcoming, 2020), available at
SSRN.
On the first day of Legislation and Regulation, I kick off class by showing the classic Schoolhouse Rock music video I’m Just a Bill. We then spend the first half of the semester exploring how the legislative process actually works today and how that process affects statutory interpretation. At the start of the second half of the course, I show How a Bill Does Not Become a Law—Saturday Night Live’s witty take on the Schoolhouse Rock classic based on President Obama’s deferred-action immigration directives. We then spend the rest of the semester exploring how the regulatory process actually works and how that process affects regulatory and statutory interpretation.
Although we spend some time on what then-Professor Elena Kagan coined “presidential administration,” the regulation half of the course focuses on how federal agencies regulate and how courts review such regulatory activities. In that sense, we might be stuck a bit in Dan Farber and Anne Joseph O’Connell’s “lost world of administrative law.” After all, presidential directives—like President Obama’s executive actions on immigration—play a substantial role in the modern administrative state, and even more so, it seems, in both the Obama and Trump administrations. Yet we know little about the process by which these presidential directives are made, much less how they should be interpreted. Until now. In Presidential Laws and the Missing Interpretive Theory, Tara Leigh Grove sheds important empirical and theoretical light on how presidents make directives and what that means for interpretive theory. Continue reading "I’m Just a Presidential Directive"
Sep 26, 2019 Technology LawTechnology Law
Ian Kerr 1965-2019Ian Kerr, who passed away far too young in 2019, was an incisive scholar and a much treasured colleague. The wit that sparkled in his papers was matched only by his warmth toward his friends, of whom there were many. He and his many co-authors wrote with deep insight and an equally deep humanity about copyright, artificial intelligence, privacy, torts, and much much more.
Ian was also a valued contributor to the Jotwell Technology Law section. His reviews here display the same playful generosity that characterized everything else he did. In tribute to his memory, we are publishing a memorial symposium in his honor. This symposium consists of short reviews of a selection of Ian’s scholarship, written by a range of scholars who are grateful for his many contributions, both on and off the page. Continue reading "Remembering Ian Kerr"
