The Consequences of Cashing-In on Death

David Horton, Borrowing in the Shadow of Death: Another Look at Probate Lending, 59 WM. & Mary L. Rev. 2447 (2018).

For decades, state and federal governments have increased their watch on fringe lending practices such as payday loans, title loans, tax refund anticipation loans, and pension loans. The main reason for this increased regulation is that these loans often have astronomical interest rates which may force borrowers to come back for renewal loans. Probate loans are a lesser known form of fringe lending that have managed to slip below the radar of nearly all regulatory bodies in the United States.

Professor David Horton identifies the issues and discusses the alarming consequences of probate loans in his article entitled Borrowing in the Shadow of Death: Another Look at Probate Lending. His article examines three common methods of fringe finance, tax refund anticipation loans (RALs), payday loans, and pension loans, and then focuses on probate loans by drawing comparisons between the methods and identifying similarities. Continue reading "The Consequences of Cashing-In on Death"

When American Pipe Met Erie

Stephen B. Burbank & Tobias Barrington Wolff, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018).

The White House is engulfed in scandal. Prosecutors and congressional investigators tighten their net around a beleaguered President and his inner circle. A constitutional crisis looms, and our nation’s faith in the rule of law hangs in the balance.

As the legal and political drama of our current moment unfolds, it remains to be seen whether today’s Supreme Court will play the same role that it was called upon to play in 1974. The current Court has, however, immersed itself in another 1974 classic: the eponymous tolling rule of American Pipe & Construction Co. v. Utah. Twice in the past two years, the Court has revisited American Pipe tolling: first in California Public Employees’ Retirement System v. ANZ Securities, Inc. (CalPERS) and then in China Agritech, Inc. v. Resh. In the wake of these decisions, Steve Burbank and Tobias Wolff provide a comprehensive and much-needed exploration of “the source, reach, and limits of the tolling rule for federal class actions that originated in American Pipe.” They persuasively argue that the Supreme Court has lost its way, misperceiving the underlying rationale and purpose of American Pipe tolling. Continue reading "When American Pipe Met Erie"

The Lolcat Theory of Internet Law

An Xiao Mina, Memes to Movements (2019).

Any Internet regulation—from privacy to copyright to hate speech to network neutrality—must take account of the complex and messy dynamics of meme-fueled conflicts. And for that,  An Xiao Mina‘s Memes to Movements is an essential guide.

Mina is not a traditional academic. She is a technologist, artist, and critic; her day job is Director of Products at Meedan, which builds tools for global journalism. But Memes to Movements draws fluently on cutting-edge work by scholars like Alice Marwick and Rebecca Lewis, Whitney Phillips, and Sasha Costanza-Chock, among many others. It is an outstanding synthesis, beautifully and clearly written, that gives an insightful overview of media and politics circa 2019. Continue reading "The Lolcat Theory of Internet Law"

Opening Up the Law to Accommodate Non-Binary Genders

Jessica A. Clarke, They, Them and Theirs, 132 Harv. L. Rev. 894 (2019).

Professor Jessica Clarke‘s law review article, They, Them, and Theirs, published this year in the Harvard Law Review, does important work in conceptualizing ways that anti-discrimination and other laws can change to accommodate non-binary people. This piece adds significantly to the emerging body of legal scholarship concerning non-binary persons, including such projects as The Future of Legal Gender: A Critical Law Reform Project,  in the UK, and Ontario Human Rights Commission: Backgrounder – Talking about Gender Identity and Gender Expression in Canada. One of the most interesting aspects of Professor Clarke’s approach is her rejection of a one-size-fits-all solution in favor of a more contextual and pluralistic set of solutions.

As Professor Clarke explains, non-binary persons pose special challenges for the existing legal framework of anti-discrimination law, although, as she suggests, none of these challenges is insurmountable. One example of such a challenge is that non-binary identity disrupts the common transgender rights narrative that a transgender person is simply trapped in the wrong body. Such a narrative can sometimes fit comfortably in anti-discrimination law frameworks in the sense that the narrative seems to mesh nicely with the decades-old case law prohibition on stereotyping based on sex. Like the gruff, cursing plaintiff in Price Waterhouse v. Hopkins, who did not fit with stereotypical notions of womanhood espoused by the male partners in the accounting firm that employed her, the transgender person who was born a man but identifies as a woman may be perceived as not quite fitting with traditional notions of what it means to be a woman, and the discrimination against her in a work context may thus be seen as actionable under employment discrimination laws like Title VII. The non-binary person’s claim is harder to categorize because the discrimination they face is usually not so easily traced back to stereotyped ideas as to the gender that women (or men) are expected to perform. Posing issues similar to those posed by bisexuality in some contexts, with a non-binary person, the comparator (who must be proven to have been more favorably treated in traditional discrimination law) may be unclear. However, this problem dissipates if one looks to how gender-binary persons are treated in a workplace compared to non-binary persons, instead of trying to sort out whether the non-binary person’s treatment should be compared to that of women or men. Continue reading "Opening Up the Law to Accommodate Non-Binary Genders"

Give the Digital Services Tax a Chance

  • Wei Cui, The Digital Services Tax: A Conceptual Defense (Oct. 26, 2018), available at SSRN.
  • Wei Cui & Nigar Hashimzade, The Digital Services Tax as a Tax on Location-Specific Rent (Jan. 23, 2019), available at SSRN.

Proposals from the European Council and the UK governments to introduce a digital services tax (DST) took those of us who haven’t been watching the field as closely as we should have by surprise. A DST might be levied on a revenue base, such as revenue from selling online advertising, intermediary services or data; at a low rate, perhaps 3%; on companies that exceed a size threshold, such as total revenue of 750 million euros. Coming in the wake of a protracted period in which the Organisation for Economic Co-operation and Development focused on negotiating arguably minor changes to the international tax framework (through the “base erosion and profit split” (BEPS) project), the DST seems to be moving like a high-speed train.

Scholars and policy makers have made efforts to justify (or contest) the normative underpinnings and economic consequences of the DST. In this context, two related papers—one by Wei Cui and Nigar Hashimzade and the second by Wei Cui—offer some helpful and novel analysis. Continue reading "Give the Digital Services Tax a Chance"

Should Owner Motivation Limit the Exercise of Property Rights?

Lee Anne Fennell, Owning Bad: Leverage and Spite in Property Law, in Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek, eds.) (forthcoming Oxford University Press), available at SSRN.

People sometimes exercise their property rights out of animus or an attempt to gain leverage over someone else. An owner may build a fence from which he gains no benefit because he maliciously wishes to block his neighbor’s view. Or a prospective seller may overstate the minimum price she would accept for a good in an effort to gain an advantage in the negotiations to follow. In the first case, the owner probably commits a civil wrong, while in the second case, the owner probably does not.

In a forthcoming book chapter, Professor Lee Anne Fennell examines when the exercise of property rights constitutes a civil wrong. More particularly, she asks when it is appropriate to examine the motivations of the property owner or the nonowner counterparty. Her “core insight is that there are multiple possible mechanisms through which putatively absolute property rights can be made less so, some of which involve weighing the motives and interests of nonowners instead of, or in addition to, those of owners” (P. 4). Continue reading "Should Owner Motivation Limit the Exercise of Property Rights?"

Out of the Mouths of Babes

International and domestic laws aimed at protecting children involved in human smuggling generally operate under the assumption that these children are vulnerable and defenseless prey to dangerous and violent criminals, for whom they work against their will. In her recent article, “Circuit Children”: The Experiences and Perspectives of Children Engaged in Migrant Smuggling Facilitation on the US-Mexico Border, sociologist Gabriella Sanchez uses original qualitative fieldwork to upend or at least nuance this claim that sits at the heart of current anti-smuggling laws. The children whose stories she tells offer a much more complex picture of their role in helping others navigate the U.S.-Mexico border.

While many scholars have decried the carceral turn in human smuggling laws, Sanchez offers a key piece of evidence demonstrating the fundamental problems with this move to criminalization. It is, as has been far too obvious of late, easy for politicians and governments to demonize actors in the migratory process, both migrants and those who help them to move. But the carceral approach masks the structural forces that render migration both necessary and nearly impossible to undertake lawfully for individuals who do not win the birthplace lottery. Sanchez’s body of work highlights the humanity and dignity of the individuals who facilitate migrant journeys—who might, from a different perspective, be viewed as part of a modern-day Underground Railroad. Though she refrains from hitting the reader over the head, the unmistakable take-away from her work is that these individuals are not the source of the problem; they are doing the best they can in the face of structural and geopolitical forces beyond their control. Continue reading "Out of the Mouths of Babes"

Net Raciality: How Racial Bias Pervades the Digital Space

Catherine Powell, Race and Rights in the Digital Age, 112 Am. J. Int’l L. Unbound 339 (2018).

“The adage ‘on the internet, nobody knows you’re a dog’ reflects a now naïve belief in the emancipatory potential of cyberspace,” writes Catherine Powell in her splendid new essay on race, internet, and international human rights published as part of a Symposium issue on the seventy-year anniversary of the Universal Declaration of Human Rights. In Race and Rights in the Digital Age, Powell critiques the belief according to which the digital space is a raceless and liberating utopia. She compares this online fiction to the offline ideology of colorblindness. Much like colorblindness has been used to conceal and perpetuate racial inequality, the supposed post-racialism of the digital world is a fig leaf masking the fact that it is pervaded with racial bias.

In making this point, she builds upon Osagie Obasogie’s critique of colorblindness that uses a research design involving interviews with blind people about race. Obasogie revealed that even people blind since birth are not colorblind, but just as likely as sighted people to equate race with visual characteristics. Similarly, Powell shows that “[r]ace is a deeply entrenched social construct—both online and offline—even when we cannot literally always ‘see’ it.” Continue reading "Net Raciality: How Racial Bias Pervades the Digital Space"

Rule of Professional Conduct, Speech Code, or Both?

Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model 8.4(g), 30 Geo. J. Legal Ethics 195 (2017), available at SSRN.

A male lawyer is taking a deposition; a woman is defending. During the deposition, the man repeatedly makes sexist comments to opposing counsel, such as “I don’t have to talk to you, little lady” and “be quiet, little girl.”1 A lawyer represents the husband in a divorce action, and argues that the children are in danger because the wife had been seen around town in the presence of “a black male” or “the black guy.”2 At a deposition the lawyer representing the defendant said to his opposing counsel, a woman, “I don’t have a problem with you, babe,” and when the woman expressed surprise at the word babe, responded “at least I didn’t call you bimbo.”3

Incidents such as these finally persuaded the ABA House of Delegates, after two decades of discussion and debate, to adopt a rule of professional conduct prohibiting bias, discrimination, and harassment in the practice of law. Model Rule 8.4(g) now provides that a lawyer is subject to discipline if he or she “engage[s] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” In a recent article in the Georgetown Journal of Legal Ethics, Stephen Gillers recounts the story of the controversy over proposed anti-bias rules at the ABA and state levels, and also provides a guide to applying the new rule. Continue reading "Rule of Professional Conduct, Speech Code, or Both?"

“Who Do You Think I Am?” or What it Means When We Lose Our Privacy

Craig Konnoth, An Expressive Theory of Privacy Intrusions, 102 Iowa L. Rev. 1533 (2017).

In the spring of 2018, we learned that Facebook, the technology company we cannot seem to get away from, allowed a political analytics group to obtain Facebook users’ data. In late 2018, Facebook admitted another, even more egregious intrusion. The New York Times showed us how the technology company gave millions of users’ personal data to other companies. It also allowed other companies to read the content of personal messages made on the platform, messages users assumed to be private. CEO Mark Zuckerberg testified before Congress and Facebook ran an apology ad campaign, including airing an apology video during the NBA playoffs. In a Facebook post, Zuckerberg pledged: “We have a responsibility to protect your data, and if we can’t then we don’t deserve to serve you.” In doing so, Zuckerberg signaled its users’ importance, and their importance required privacy protection. In other words, Facebook acknowledged that when it allowed a privacy violation, it inherently disrespected its users.

In An Expressive Theory of Privacy Intrusions, Craig Konnoth explicitly argues what Zuckerberg implicitly acknowledged: privacy intrusions involve more than what is being taken or how the intruders use that information. Intrusions express something about the breacher and the breachee beyond the material consequences; according to Konnoth, the social meaning of privacy intrusions suggest the victim’s lower social status, a form of “disrespect.” Continue reading "“Who Do You Think I Am?” or What it Means When We Lose Our Privacy"

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