Sep 12, 2019 Christopher W. SchmidtLegal History
Law and History Review’s recently published symposium, Originalism and Legal History: Rethinking the Special Relationship, offers a fascinating collection of articles, some by familiar commentators on constitutional originalism, some by newer voices. In the former category are Bernadette Meyler’s powerful critique of the Supreme Court’s reading of the history of the Sixth Amendment’s Confrontation Clause; Saul Cornell’s challenge to originalists to meet the standards of a“genuinely historical approach to reading Founding Era texts that draws on the best interdisciplinary methods available”; William Baude and Stephen E. Sachs’s defense of originalist analysis as “ordinary lawyer’s work,” distinct from and more limited than the historian’s task of understanding the past; and Logan Sawyer’s account of the role that academic historians played in the rise of modern originalism in the 1970s and 1980s.
The symposium also includes a number of contributions from scholars who are newer to the scene. Lindsay M. Chervinsky examines George Washington’s understanding of executive authority, as revealed in newly available writings by the first president. Michael Douma explores the history surrounding two early Dutch translations of the United States Constitution. Aaron Hall considers how participants in mid-nineteenth-century debates over slavery turned to the history of the Founding as authority for their positions. And Paul Baumgardner looks to the history of law schools in the 1980s to trace the foundations of modern originalism rise to prominence in the legal academy. The symposium issue also includes Kevin Arlyck’s illuminating review of Jonathan Gienapp’s important new book, The Second Creation: Fixing the American Constitution in the Founding Era. Continue reading "New Approaches to the History of Originalism"
Sep 11, 2019 Wendy Anne BachLexPoverty Law
If in general we are to understand that, in our new age of surveillance and pervasive use of data, privacy is dead, something else is happening in poor communities. In Poverty Law scholarship, privacy is framed more accurately as violently absent. Hypersurveillance, hyperregulation, criminalization, stigma, and structural racism have created a world in which, in Khiara Bridges’s words, “state intervention, coercion, and regulation” are the norm. Poverty Law scholars also know privacy as something that is, in its idealized liberal form, profoundly inadequate. As Dorothy Roberts argues, “merely ensuring the individuals ‘right to be let alone’—may be inadequate to protect the dignity and autonomy of the poor and oppressed.” Indeed a better notion of privacy “includes not only the negative proscription against government coercion, but also the affirmative duty of government to protecting the individual’s personhood from degradation and to facilitate the processes of choice and self-determination.”
In The Surveillance Gap, Michele Gilman and Rebecca Green quite literally take all these realities and flip them over–revealing both the inevitable retreat that comes from intervention, coercion, and regulation, and the resulting lack of access to legal and institutional supports that might just support self-determination. But the flipping is just a piece of the contribution. After all, for those in the field, none of the facts are all that surprising. What is different here is what all this means for how we theorize privacy and how we create and support resistance. Continue reading "Poverty, Privacy, and Living Out of Reach"
Sep 10, 2019 Hoi KongInternational & Comparative Law
Professor David Fontana’s Unbundling Populism is a valuable addition to a burgeoning body of comparative constitutional law scholarship on populism. Some scholars have provided helpful typologies of populism. Mark Tushnet, for instance, distinguishes between different forms of populism and identifies the constitutional implications of right- and left-wing populist policies. Others have adopted working definitions of populism and specified the ways in which populism (so defined) threatens key elements of liberal constitutionalism. Nicola Lacey, for example, claims that there is a general consensus on the conceptual elements of populism and identifies a variety of ways in which populists have threatened the rule of law, ranging from agenda-setting that threatens core rule of law institutions to the flouting of constitutional conventions. Still others have written about populism, while resisting the temptation to seek a workable definition. For instance, Kim Lane Scheppele turns away from trying “to define and delegitimate” populism and asks instead why so many liberal constitutionalists are “so obsessed with populism.” In the course of answering this question, she identifies threats that populists pose to liberal constitutionalism, often by using the rhetoric of liberalism and democracy.
In his remarkable article, Fontana pulls together several of the above threads in the comparative constitutional law literature on populism. He provides a working definition of populism, offers a novel typology, and warns that if we are imprecise in how we talk about populism, we may delegitimate concerns that are valid in a liberal democracy and we may legitimate leaders with authoritarian tendencies. Continue reading "Clarifying Populism"
Sep 9, 2019 Robert HillmanContracts
Uri Benoliel & Shmuel I. Becher,
The Duty to Read the Unreadable, 60
B.C. L. Rev. __ (forthcoming, 2019), available at
SSRN.
Uri Benoliel and Shmuel I. Belcher answer the question posited in the title to this review with an absolute yes. In a well-written, concise, and quite persuasive article, the authors test the readability of 500 of the most popular websites’ “sign-in-wrap agreements,” which require online users to accept terms before using the website’s services. The authors employ two readability tests that measure the average length of sentences and the average number of syllables per word. After detailing the legitimacy of these tests, the authors report that the sign-in-wrap agreements are no more readable than academic journal articles and thus are “unreadable” by consumers. The article proceeds by providing a nice discussion of the nature of the two tests, the results, and the implications for contract law. The article adds important weight to other studies that conclude that Internet agreements challenge consumers. Although hardly revelatory, such empirical studies increase the pressure on lawmakers to revise the duty-to-read rule in the context of consumer standard-form contracts.
Benoliel and Becher recognize that long sentences and multi-syllabic words are only two of the many problems facing consumers who make Internet agreements. But they reason that paying attention to part of the problem provides a step in the right direction. They, therefore, suggest a series of regulatory moves and judicial responses. Perhaps most important, the authors argue that vendors drafting consumer Internet contracts should have a duty to draft agreements that receive a favorable readability score. The authors also sensibly call on courts to continue policing substantive terms and suggest that judges should relax the duty-to-read rule when consumers are faced with unreadable contracts. The authors are more tepid about another possible reform, requiring vendors to include a plain-language version of the agreement alongside the contract. They reason in part that two versions of the agreement can only create confusion over which version to read and which is binding. Continue reading "Are Sign-in-Wrap Agreements Unreadable?"
Sep 6, 2019 Kerri Lynn StoneWork Law
Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World, 128 Yale L.J. Forum 85 (2018).
One of my favorite pieces published in labor and employment law this year is Rachel Arnow-Richman’s Of Power and Process: Handling Harassers in an At-Will World, which is a not-to-be-missed call for an overhaul of the contracting practices deployed by employers, one designed to shift the calculus that employers use to police sexual harassers of various corporate ranks. This piece examines a rarely thought-about angle of the #Metoo movement and the changes that it has precipitated and is yet to still effect. Professor Arnow-Richman, a scholar in employment law and in contract law, exposes this angle thoughtfully and sets forth a laudable proposal.
Professor Arnow-Richman’s starting point is, appropriately, as she puts it, the “extreme power imbalance in the workplace” that engenders “a world in which high-level decision-makers wield unrestricted control over employees,” while the entity can turn a blind eye to the way in which this unfettered discretion may be abused. (P. 90.) Lower-level employees are not accorded such latitude, and they are typically expeditiously disciplined or otherwise dealt with in the face of their inappropriate behavior. The #MeToo Movement, Professor Arnow-Richman correctly points out, was the force that kicked up a lot of the dust that enabled us to see just how uneven this landscape has been. Specifically, she argues that as society begins to grapple with balancing aggressive policing of workplace harassment with ensuring that accused harassers are accorded fair treatment (rather than summary and automatic dismissal), it needs to address inequities among workers at different ranks in the workplace. Moreover, she notes, misconceived corporate responses have companies punishing sexualized actions, rather than policing sex-based harassment that is not sexual in nature. Having astutely pointed out that “employers are inclined to tolerate sexual harassment and other misconduct by top-level employees but aggressively police ‘inappropriate’ behavior by the rank-and-file” (P. 85), Professor Arnow-Richman then sets out to address this problem. Continue reading "Competing Interests and Best Practices in the Wake of #Metoo"
Sep 5, 2019 Gregory KeatingTorts
Sandy Steel, C
ompensation and Continuity,
Oxford Legal Studies Research Paper (July 20, 2019), available at
SSRN.
“Wrongdoers may incur duties to compensate the victims of their wrongs.” This, the opening sentence of Sandy Steel’s Compensation and Continuity, sounds like a truism. Who would deny it? It’s hard to imagine the defendant in a normal tort lawsuit conceding liability but insisting that her concession in no way implied responsibility for repairing that wrongfully inflicted harm. In tort law, the obligation to repair harm tortiously inflicted seems to tumble out of the breach of the primary duty to avoid tortiously wronging someone. Moreover, the continuity here seems both reasonable and rooted in basic morality.
Suppose I am cycling past a grove of peach trees. I stop, sample a peach, and decide to fill my pockets and bag with as many peaches as I can. I take them home and make peach pies out of them. Unsurprisingly, it turns out that the peaches weren’t just there for the taking. They were the property of a farmer who was growing them for sale. After reviewing her security tapes and deploying face recognition technology, the farmer shows up at my door demanding compensation. Surely, her demand is justified. I was wrong to have taken the peaches. I committed the tort of conversion, even if my assumption that the peaches were just there for the taking was an innocent mistake. Having baked the peaches into pies I am now unable to return them. So I must compensate the farmer for the peaches. This is what Aristotle called corrective justice and what John Locke called the obligation of reparation. The obligation of reparation seems to be a basic principle of morality, picked up in the law of torts. Continue reading "Why Reparation?"
Sep 4, 2019 Marin K. LevyCourts Law
Jeffrey L. Fisher & Alli Orr Larsen,
Virtual Briefing at the Supreme Court, 105
Cornell L. Rev. __ (forthcoming 2019), available at
SSRN.
How do the Justices (and their law clerks) know what they know? More specifically, how do they acquire the information that they rely on when deciding cases? Alli Orr Larsen has done more than anyone in recent years to answer this set of questions. From exploring the role of amicus brief “facts” in Supreme Court opinions to tracing “in house” fact-finding by the Justices themselves, Larsen has shown how information comes to, and is sought by, members of the Court in surprising and perhaps unsettling ways. It is thereforeunsurprising that Larsen, with renowned Supreme Court advocate Jeff Fisher, have new and important information about how facts and arguments reach chambers today.
The starting point of Virtual Briefing is that the digital age has opened new avenues for reaching the Justices. As readers of this site will no doubt acknowledge, many in the legal profession gather crucial information about cases online. Whereas yesterday’s lawyer might have consulted bar journals and op-ed pages to glean legal insights, today’s lawyer has her pick of podcasts, blogs, and twitter feeds devoted to the Court. As one example, according to ABA estimates, there were a mere 100 legal blogs in 2002 and more than 4000 by 2016. These sources provide what the authors dub “virtual briefing”— written or oral online advocacy, outside the normal briefing process, aimed at influencing the outcome of a case at the Supreme Court. Continue reading "Confronting Online Advocacy"
Sep 3, 2019 Daithí Mac SíthighTechnology Law
Ellen P. Goodman & Julia Powles,
Urbanism Under Google: Lessons from Sidewalk Toronto, __
Fordham L. Rev. __ (forthcoming 2019), available at
SSRN.
National Geographic’s April 2019 issue focused on ‘cities’, presenting photographs, highlighting challenges, and wondering about the future. Its editor highlighted that two-thirds of the world’s population is expected to live in a city by 2050, and recent history is replete with unfinished or abandoned blueprints for what this future might look like. Yet in the field of technology law and urban planning, the biggest story of the last two years may well be that of Toronto, where a proposal to rethink urban life through data, technology, and redevelopment has prompted important reflections on governance, privacy, and control.
In Urbanism Under Google: Lessons from Sidewalk Toronto, forthcoming in the Fordham Law Review, Ellen P. Goodman and Julia Powles set out to tell the story of the ‘Sidewalk Toronto’ project, from its early announcements (full of promise but lacking in detail) to the elaborate (yet no less controversial) legal and planning documents now publicly available. Goodman and Powles contribute to the public and academic scrutiny of this specific project, but their critique of process and transparency will obviously be of value in many other cities, especially as ‘smart city’ initiatives continue to proliferate. Continue reading "We the North"
Sep 2, 2019 Charlotte CraneTax Law
In Tax Equivalences and Their Implications, Alan Auerbach reviews some of the commonly invoked equivalences that have been incorporated into the vocabulary of tax policy discussions during the last half-century. He offers a quick (and refreshingly accessible) summary of the analysis economists have used to break down the study of tax instruments so that their predicted impacts can be compared in terms of their overall effect on the economy. More important, he points out the situations in which these generally useful assumptions about equivalence across tax instruments will not hold, and, in doing so, hints that arguments from equivalence may have sometimes played a perhaps oversized role in tax policy discussions.
Equivalence for Auerbach’s purposes generally refers to the idea that identified tax policies have, in his words, “the same impact on fundamental economic outcomes.” One key economic outcome is the extent of the misallocation of resources resulting from the dead-weight losses taxes always entail. Under an economist’s view, for instance, a labor income tax can be seen as equivalent to a consumption tax as long as there is no initial wealth (and therefore earnings are only derived from labor) and all earnings are consumed. Continue reading "What Is Lost in Translation? From Theory to Practice in Tax Policy"
Aug 19, 2019 JotwellJotwell
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