Sep 13, 2016 Rebecca TushnetTechnology Law
It may seem odd to put this article in the category of “Cyberlaw,” since it is so thoroughly about the embodied nature of new business models usually attributed to the distributed, placeless internet. But that’s precisely the point: the internet has a materiality that is vital to its functioning, and so do specific parts of it. Regulation, too, must contend with the physical basis of online activities. Julie Cohen has often written about the situatedness of the digital self and its construction within a field of other people, institutions, and activities; Davidson and Infranca explore that situatedness by explaining why local government law is an important matter for internet theorists.
Davidson and Infranca’s article thus puts an important emphasis on the materiality of internet-coordinated activities, even if my take is ultimately more pessimistic than that of the authors. They begin by noting that
[u]nlike for earlier generations of disruptive technology, the regulatory response to these new entrants has primarily been at the municipal level. Where AT&T, Microsoft, Google, Amazon and other earlier waves of technological innovation primarily faced federal (and international) regulatory scrutiny, sharing enterprises are being shaped by zoning codes, hotel licensing regimes, taxi medallion requirements, insurance mandates, and similar distinctly local legal issues. Continue reading "New App City"
Sep 12, 2016 Gabriel "Jack" ChinCriminal Law
Unfair begins with a reminder that medieval methods of factfinding now mocked—“fishing a ring out of a boiling cauldron, carrying an iron straight from the fire, or being plunged into a vat of water”—were employed in their era because they were understood to be cutting-edge analytical techniques. The point, which Adam Benforado drives home with startling, embarrassing force, is that our criminal justice system is in its own dark age, relying on techniques known to be inaccurate and to lead to erroneous results.
Some critiques are familiar, such as that interrogation using the Reid Technique can lead to false confessions, that there are many incompetent defense lawyers, that police and prosecutors sometimes suppress exculpatory evidence. But their unrelenting expression, from the predictable weaknesses of criminal investigation to the established disutility of certain forms of imprisonment, leaves the reputation of the system in tatters. Unfair ends with reasonable and creative, albeit politically improbable, suggestions for reform. Continue reading "Can We Improve on the Ordeal of American Criminal Justice?"
Sep 9, 2016 Elizabeth G. ThornburgCourts Law
It’s certainly not news that, in recent years, the Supreme Court majority has been unenthusiastic about class actions. Reinterpretations of procedural rules and standing requirements make class certification more difficult and efforts at certification more expensive. Ever-broadening interpretations of the Federal Arbitration Act also move claims out of courts and prohibit aggregation of claims in arbitration. Procedure scholars have lamented these decisions for years, as the gradual accretion of unfortunate decisions continues.
I love this essay by Myriam Gilles because it changes my focus from processes to people and shines a light on the groups whose claims disappear in the absence of class action litigation. Conceptually, I’ve talked about “negative value claims” or perhaps “consumers” and “employees,” but unconsciously saw the issue through the lens of my own class-member settlements in cases involving unauthorized foreign transaction fees and excessive e-Book prices. I failed to think through the many ways in which those SCOTUS decisions have a systemic and devastating impact on the poor and powerless. Continue reading "The Vanishing Poor"
Sep 8, 2016 Anna GelpernCorporate Law
In the words of one younger and wiser colleague, “prescriptions are empty calories for law review editors.” Many fabulous articles uncover new histories, new facts, new frames … only to fizzle around the obligatory Part V, with its half-hearted defense of a model law or regulatory gimmick, that orphan child born of perfunctory comments in faculty workshops.
The latest article by Heidi Mandanis Schooner, based on her endowed lecture at Washburn Law School, is a rare counterexample—a stunningly simple reform idea that would literally upend the paradigm of bank capital adequacy, dispensing with some of today’s most urgent and intractable financial regulatory debates. The Washburn Law Journal symposium issue (which includes insightful commentary on Schooner’s lecture) and her spinoff testimony before the Senate Banking Committee are rich food for legal, economic, and policy thought—but are not very well-packaged, and could easily get lost in the buzz and dazzle of the fast-growing scholarly field. Continue reading "See. Spot. Catch. Frisbee. (… or Behold the Simple Elegance of Bank Capital, Upside-Down)"
Sep 7, 2016 Charles ShanorConstitutional Law
Michael Greve and Christopher C. DeMuth, Sr.
, Agency Finance in The Age of Executive Government, 16-25 George Mason U. L. & Econ. Research Paper Series (2016), available at
SSRN.
This year has featured no shortage of excellent doctrinal pieces in constitutional law—so many that I couldn’t choose among them. This article is different: more political science than law, although it does focus on separation of powers. Many Jotwell readers may not have read it. That’s unfortunate. It deserves follow-up work by constitutional law scholars.
Agency Finance in The Age of Executive Government, by Michael Greve and Christopher DeMuth, opens up a wide agenda for constitutional scholarship premised less on doctrinal issues, and more on a series of interlacing fiscal developments that have shifted power to the executive branch. The burgeoning administrative state, the continuing shift towards executive governance, and the lack of political accountability of administrative agencies have long been academic legal literature fodder. Most of these articles explore the doctrinal and policy nuances of the dividing lines between the political branches. The courts, meanwhile, have occasionally cabined the executive with an institutionally appropriate focus on fact-specific and precedent-based analysis. But both the academy and the judiciary are fundamentally inadequate to the task of cabining the executive branch. Neither can substitute for congressional control over and channeling of executive action, the main control built into the constitutional scheme of separated federal powers. Congressional retreat has facilitated executive creep. Continue reading "A “Follow the Money” Approach to Separation of Powers"
Sep 6, 2016 Richard PierceAdministrative Law
Kent Barnett & Christopher J. Walker, Chevron
in the Circuit Courts, 115 Mich. L. Rev. (forthcoming 2017), available at
SSRN.
Kent Barnett and Chris Walker begin this fascinating article by describing the Chevron doctrine and its history. In its landmark 1984 opinion in Chevron v. NRDC, the Supreme Court announced a new, seemingly more deferential doctrine that it instructed lower courts to apply when they review agency interpretations of the statutes they administer. The Chevron opinion is one of the most cited opinions in history. It has been cited in “nearly 15,000 judicial decisions and in over 17,000 law review articles and other secondary sources.” (P. 2.)
Barnett and Walker agree with most scholars that the Supreme Court’s “choice to apply Chevron deference, as opposed to a less-deferential doctrine or no deference at all, does not seem to affect the outcome of the case.” (P. 4.) They note that the Supreme Court did not even mention Chevron in three-quarters of the cases in which it reviewed agency statutory interpretations during the twenty-two-year period immediately after it issued its opinion in Chevron. They then report the findings of their study—the largest empirical study of circuit court applications of Chevron ever undertaken. As they characterize the results of their study, what they call Chevron Regular seems quite different from Chevron Supreme. Continue reading "Circuit Courts Do Strange Things with Chevron"
Aug 22, 2016 JotwellJotwell
Jotwell is taking a short summer break. Posting will resume on Tuesday, September 5. However, even while we’re on break, we’ll be accepting submissions, editing them, and preparing a new section that we plan to be launching very soon. We’ll also be doing our first major code refresh since we founded the site in 2009. It’s possible that this updating may cause brief periods of down time during our break, so please bear with us.
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Aug 19, 2016 Ellen BublickTorts
Donal Nolan,
Preventive Damages, 132
Law Q. Rev. 68 (2016), available by subscription at
Westlaw.
The recent Restatement Third of Torts divides U.S. tort law into separate categories of harm. Liability for physical injury is governed, on the one hand, by the Restatement Third of Torts: Liability for Physical and Emotional Harm. Liability for economic loss, on the other hand, is governed by the Restatement Third of Torts: Liability for Economic Harm. In the case of physical harm, default rules permit generous liability and recovery. In the case of economic losses, liability is quite limited. So it is no surprise that issues arise at the border of these two subjects. Specifically, what happens when the defendant’s conduct creates not actual physical harm, but a risk of physical harm that occasions the need for the plaintiff to incur economic expenses that will prevent it? Should the more liberal rules of physical harm recovery apply because the defendant’s conduct created a risk of physical harm? Or should the more restrictive rules of economic loss recovery apply because the actual damage is, after all, purely economic?
In his recent article, Preventive Damages, Professor Donal Nolan of Oxford University confronts this thorny issue, which, as he notes, “has been the subject of surprisingly little analysis by common law scholars.” Professor Nolan begins his article with the general principle of preventative damage recovery outlined in the Principles of European Tort Law. Specifically, Article 2.104 provides that “Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.” This general principle apparently captures the preventative damage rules of a number of civil jurisdictions, including Germany and France. But Nolan suggests that “most common lawyers would struggle to answer” whether this principle represents the law in their jurisdictions. The cases Nolan highlights seem to warrant that legal uncertainty as they pull in both directions. Continue reading "When Physical Harm Is Threatened but Not Realized: Who Should Pay?"
Aug 18, 2016 Hoi KongInternational & Comparative Law
Rosalind Dixon and David Landau’s Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment contributes significantly to at least two fields of legal scholarship: the writing on unconstitutional amendments and the literature on comparative constitutional law. In what follows, I will highlight how this most impressive text contributes to each of these fields.
Consider first the article’s contribution to the writing on the doctrine of unconstitutional amendments. As the authors’ exhaustive citations reveal, scholars have long examined how courts should determine whether “some constitutional amendments are substantively unconstitutional because they undermine core principles in the existing constitutional order.” (P. 608.) Dixon and Landau state with striking clarity the stakes that underlie this debate. They note that the doctrine creates a slippery slope problem: judicial oversight can create a brake on attempts to enshrine in a constitution measures that unambiguously undermine its democratic legitimacy, yet there is a risk that courts will extend the doctrine to cases in which there is only reasonable disagreement about a particular interpretation of the constitution and therefore no serious threat to the polity’s democratic order. When a court overreaches in this way, the authors note, it frustrates the political branches’ ability to pursue a constitutionally recognized avenue for resolving a reasonable disagreement with the judiciary. Dixon and Landau describe the consequences of such judicial overreaching: “Giving courts unfettered power to invalidate amendments for incompatibility with their own prior preferred reading of the constitution will create a clear democratic danger or cost.” (Id.) Continue reading "Understanding Unconstitutional Amendments: Reflections on Comparative Constitutional Doctrine and Method"
Aug 17, 2016 Jessica SteinbergCourts Law
Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark,
Lawyers, Power, and Strategic Expertise, 93
Denv. L. Rev. 469 (forthcoming 2016), available at
SSRN.
The sociologist Rebecca Sandefur estimates that a staggering one in three members of the population experiences a civil justice problem every year. Recent reports consistently pronounce that a glut of newly minted lawyers is crowding an oversaturated market. Yet low- and moderate-income Americans are far more likely than not to attempt to protect important rights to housing, custody, financial security, and physical safety without the benefit of attorney assistance. A conservative estimate puts the number of unrepresented parties in the civil justice system at twelve or thirteen million. Gillian Hadfield and James Heine suggest that the inaccessibility of legal services leads nearly forty percent of Americans to “lump” their civil justice problems, or do nothing to solve them.
In light of these distressing statistics, two hot topics in access to justice have emerged in recent years. In one camp are those who promote the need for a right to counsel—a “civil Gideon”—in a broader range of civil cases. In a second camp are those who propose innovative models for the distribution of scarce attorney resources, including the delivery of “unbundled,” or brief, services in lieu of full representation, as well as the licensing of non-attorneys to handle routine legal matters.
One complication in evaluating the various proposals to increase access to legal services is that we lack the robust empirical data necessary to determine whether, and in what forms, attorney representation makes a difference. And that is where Colleen Shanahan, Anna Carpenter, and Alyx Mark’s outstanding article comes in. Continue reading "How and Why Representation Matters"
