May 22, 2025 Scott Skinner-ThompsonTechnology Law
For American lawyers, the concept of data protection can seem overly bureaucratic and even a bit obtuse. American legal scholars, in general, prefer to think in terms of privacy, with its manifold methods of potential protection of the liberal individual subject via tort causes of action, criminal law, consumer protection, and, occasionally some actual command and control regulation. In other words, the concept of data protection can—again, particularly for American audiences—seem question begging: protection of what data, whose data, and from whom? (Clearly the same questions can and are asked about privacy protections).
In his recent book, Professor Gianclaudio Malgieri explains why data protection laws matter. The GDPR isn’t an annoying consent regime for internet browsing, but can be mustered to protect people along several axes of vulnerability—including their demographics, yes, but also any power imbalance relative to the data controllers. The GDPR isn’t ideal for guarding against vulnerability because it lacks clear and explicit protections for the precarious and, according to Malgieri, new regimes must be imagined and implemented. But the book’s critically optimistic view helps us see how data protection can be used here and how to guard against vulnerability; in essence, as a form of harm reduction. It is a rigorous book that deftly applies often ethereal (but important) philosophical concepts to a turgid regulatory regime in order to unpack that regime’s anti-subordination potential. Continue reading "Centering the Vulnerable through Data Protection"
May 21, 2025 Jon ChoiTax Law
Work requirements are pervasive in American social safety nets: for example, the federal Earned Income Tax Credit and Child Tax Credit both only kick in after a taxpayer makes a certain level of income. Work requirements are controversial because they exclude the worst-off (including those who are unable to work) from receiving government benefits. One important reason that they remain is that conditioning benefits on employment is thought to encourage labor force participation. But is this really true? A remarkable new paper by Jacob Goldin, Tatiana Homonoff, Neel Lal, Ithai Lurie, Katherine Michelmore, and Matthew Unrath provides compelling evidence that, at least in the context of state child tax credits, the answer is no.
In Work Requirements and Child Tax Benefits, the authors rigorously study the effects of conditioning child tax benefits on work. Their primary focus is a 2022 reform in California that eliminated the work requirement for the state’s Young Child Tax Credit (YCTC). Before this change, families needed at least $1 of earned income to receive the full $1000 credit; afterward, even non-working families qualified. The authors complement this analysis with evidence from five other states with varying child tax credit designs. Continue reading "Do Work Requirements Matter? New Evidence"
May 20, 2025 Verity WinshipInternational & Comparative Law
Luca Enriques, Matteo Gatti & Roy Shapira,
How the EU Sustainability Due Diligence Directive Could Reshape Corporate America, available at
SSRN. (April 27, 2025).
Corporate America may face an unusual pairing in the fight over corporate responsibility for human rights and the environment: EU rules and US enforcement. The potential for this (unintentional) partnership is the subject of How the EU Sustainability Due Diligence Directive Could Reshape Corporate America. The article considers how the EU Directive on Corporate Sustainability Due Diligence (CS3D) will affect US companies, focusing on a “unique combination of the EU ambitious regulation and the US robust private enforcement landscape” (P.1).
The EU directive has a sweeping geographic reach, extending beyond EU boundaries. It requires “every large corporation operating in the EU market” to “conduct due diligence on how its operations affect human rights and the environment” (P. 8). US companies with significant EU revenue are pulled in. The directive’s influence also cascades down to smaller companies as these large multinationals must monitor their “activity chain” worldwide (P. 10). Continue reading "European Rules, American Enforcement"
May 19, 2025 Steve GoldLexEnvironmental Law
In my most recent Jot, I reviewed two articles that explored “The Limits to Law(s)” – more precisely, the inability of United States environmental law to respond quickly and effectively to the global problems of PFAS contamination and plastics pollution. William Boyd’s De-Risking Environmental Law criticizes the law’s ineffectual response to toxic hazards more generally and identifies a surprising culprit. “Environmental law, it seems,” Boyd writes, “suffers from too much science and not enough law.” (P. 156.)
What we need instead, says Boyd, is “a new ethics of regulatory science . . . that recenters law in the commitment to protecting public health.” (P. 153.) This new twist to an old debate about whether ethics or science should serve as the primary justification for environmental law startles the reader. After all, science appeared to have won that debate decisively and long ago. How could any government make policy choices to protect public health or ecosystems without a thorough understanding of the medical and ecological dynamics at stake? We are so accustomed to relying on science to justify regulatory interventions it seems impossible to imagine any other way of thinking.
And that, according to Boyd, is exactly the problem. Continue reading "The Limits to Science"
May 16, 2025 Scott CummingsLegal Profession
Adam Chilton, Jacob Goldin, Kyle Rozema, & Sarath Sanga,
Occupational Licensing and Labor Market Mobility: Evidence from the Legal Profession (Aug. 23, 2024), available at
SSRN.
In Occupational Licensing and Labor Market Mobility: Evidence from the Legal Profession, Adam Chilton, Jacob Goldin, Kyle Rozema, and Sarath Sanga investigate the tradeoffs of state bar licensing requirements through the lens of bar exam waiver policies. These policies permit lawyers with a threshold level of experience to obtain a state bar license without having to sit for the bar examination, effectively “waiving in.” The authors use variation in state waiver policies as a natural experiment permitting empirical analysis of whether states allowing entry through waiver experience a decline in lawyer quality, measured in relation to metrics of lawyer discipline and law school status. The variation in policies arises because some states, like California, categorically do not permit waiver, while waiver states include those that are more restrictive (with “Reciprocity” policies requiring reciprocal waiver from the originating state) and less restrictive (with “Admission on Motion” policies permitting waiver without reciprocity).
The authors conceptualize waiver policies as creating “corridors” between states that are either closed or open and codes corridors based on waiver policies from 1983 to 2019. They examine lawyer bar admissions through these corridors based on Martindale-Hubbell directory information on the state and year in which each listed lawyer obtained license(s) (1.7 million observations through 2019). They then fold in data on lawyer quality, derived from a dataset of all lawyers for whom public discipline records are available during the relevant time frame (from a total of 37 states), added to which is information on law school attended (available for roughly 90 percent of lawyers in the dataset). The authors put in an impressive amount of work assembling these datasets and demonstrates ingenuity in using waiver policy variation to conduct the experiment. Continue reading "Do Bar Exam Waivers Hurt Lawyer Quality?"
May 15, 2025 Anders WalkerLegal History
Kathleen DuVal’s Native Nations is the latest in a raft of books that tackle the long history of Native America. It resonates with Pekka Hämäläinen’s Indigenous Continent: The Epic Contest for North America (2022) and Ned Blackhawk’s capacious The Rediscovery of America: Native Peoples and the Unmaking of American History (2023). For legal historians, DuVal’s book makes for interesting reading because it combines both the long history of Native America – including the rise and fall of Indian cities like Cahokia – and the more recent past, all the way up to the “indigenous renaissance” of today. (P. 552.)
Like Hämäläinen’s Indigenous Continent, DuVal begins her story before European contact, explaining how Native Americans thrived on the North American continent for centuries. Cahokia, a massive complex on the Mississippi River, boasted a population larger than London in 1250. However, in the years leading up to European arrival, oddly modern problems—including “climate change”—led Native Americans to abandon their urban lives for smaller, more democratic social formations, or what DuVal calls a more “egalitarian order.” Continue reading "The Survival of Nations"
May 14, 2025 Andrew HalpinJurisprudence
For those interested in the specific subject matter of Norman Ho’s recent article in Jurisprudence, “‘The Confucianization of law’ debate,” it provides an informative read, offering some original insights on the historical evidence for the influence of Confucianism on Chinese law. A wider readership should be attracted to this article for Ho’s stimulating reflections on the interplay between historical and jurisprudential accounts of the topic.
The platform for Ho’s wide-ranging discussion is an examination of Qu Tongzu’s “Confucianization of law” theory and its reception within the literature. Ho suggests that Qu’s theory should not be regarded merely as offering a contribution to legal history. Rather, Ho argues, its jurisprudential qualities should be acknowledged. In Ho’s view, this permits a fuller investigation of Qu’s theory. More than that, Ho produces a general schema to differentiate the impact of historical and jurisprudential perspectives on the debate. In addition, he draws upon a fascinating case study of kinship concealment in Chinese law. Continue reading "CONFUCIUS, HISTORY AND JURISPRUDENCE"
May 13, 2025 Gregory M. SteinProperty
Community Land Trusts (CLTs) form a small but important part of the affordable housing mosaic. Preserving Affordable Homeownership: Municipal Partnerships with Community Land Trusts, a Policy Focus Report of the Lincoln Institute for Land Policy, describes the many ways in which state and local governments can assist CLTs and help maintain the affordability of housing units indefinitely. Co-authored by John Emmeus Davis, an experienced city planner, and Kristin King-Reis, a lawyer whose clients include CLTs and other non-profits, the Report offers a comprehensive and readable guide to how CLTs operate and how state and local governments can increase the likelihood they will succeed.
The Report begins with a history of CLTs and ends by offering a series of policy recommendations. These sections bracket a set of chapters examining various facets of the relationship between CLTs and government bodies. Continue reading "Community Land Trusts and the Long-Term Preservation of Affordable Housing"
May 12, 2025 Pamela SamuelsonIntellectual Property Law
Dave Fagundes & Aaron Perzanowski,
How IP Ends, Emory Legal Studies Research Paper (forthcoming), available at
SSRN (Jan. 24, 2025).
The literature on intellectual property (IP) rights has overwhelmingly focused on their birth, life, and enforcement. Rare indeed have been articles about how and why those rights cease to be enforceable.
In How IP Ends, Fagundes and Perzanowski have written the first comprehensive article about different ways that IP rights can cease to exist for the four most common IP regimes (e.g., patents, copyrights, trademarks, and trade secrets) through what they call “terminal mechanisms”: expiration, abandonment, forfeiture, and two types of invalidations (distinguished below). Continue reading "Taxonomizing Various Mechanisms for Terminating Intellectual Property Rights"
May 9, 2025 Carl ColemanHealth Law
The American system of medical malpractice has long been criticized for failing to achieve either of the two primary goals of tort law: compensating victims or deterring misconduct. For victims of medical error, “[t]he malpractice liability system provides little compensation overall, and what infrequent compensation it provides it does so inefficiently with high transaction costs.” As for deterrence, researchers have found “no association between greater risk of malpractice liability and health care quality.” There has been no shortage of proposals to replace the system with potentially more effective alternatives, ranging from the use of specialized health courts to broader systems of enterprise liability to a wholesale replacement of the system with a no-fault compensation regime. In a provocative new article, Aggregating Liability for Medical Malpractice, Omer Pelled of Bar Ilan University School of Law enriches the debate by introducing a novel new approach he calls “strict liability for unreasonable harm” (SLUH), a creative mashup of negligence and strict liability that shifts the focus from discrete medical injuries to the pattern of outcomes resulting from a provider’s acts and omissions over a specified period of time.
Pellad uses the problem of hospital-acquired infections as a paradigmatic case for the application of SLUH. Some level of such infections is expected even in hospitals that engage in reasonable infection-control measures, but a higher level will occur in hospitals that fail to exercise due care. Suppose that a non-negligent hospital of a particular size and with a particular patient profile can be expected to have 100 infections per year, but one such hospital experiences 150 infections over the same time period. Under existing malpractice law, a patient seeking damages would have to show that her infection was more likely than not one of the 50 that would not have occurred had the hospital acted more reasonably. Because this is often an impossible hurdle, few injured patients even seek compensation through the tort system, and the hospital is therefore under-incentivized to invest in reasonable care. Pelled argues that the hospital’s liability should instead be established in the aggregate for all 150 affected patients, without any need to determine precisely how each of those injuries happened to arise. Each patient would be entitled to partial compensation based on the proportion of the total harm caused by the hospital’s failure to exercise reasonable care over the relevant time period, which in this example would be 50/150, or 1/3 of the total amount. Continue reading "Strict Liability for Unreasonable Harm: Aggregating Liability to Restore Compensation and Deterrence to Medical Malpractice Litigation"
