For decades, scholars have heaped scorn on family law’s open-ended legal standards like “equitable” distribution or the “best interests” of the child. The prevailing view is that such standards are indeterminate because they call on judges to weigh competing values in the absence of social consensus or to make impossible predictions. They therefore invite—in fact, require—judges to make decisions that resonate with their personal preferences or experiences. Laypeople appear to be in full agreement. Virtually every person I’ve known who has gone through a divorce has a story about the trial judge who “screwed” him or her by imposing values inconsistent with that person’s own.
But despite this virtually universal dissatisfaction, attempts to replace these standards with clearer rules or guidelines have largely failed. Scholars have offered convincing explanations for why this failure has been inevitable: people simply do not agree on the values that family law doctrines should reflect; state legislators shy away from controversial substantive positions on family law matters; and interest-group mobilization makes it easier to defeat, rather than to pass, proposed legislation. Continue reading "Family Law’s Democratic Foundations"
Despite the fact that bisexuals are, by most counts, the largest sexual minority group in the United States, they remain woefully under-researched and under-theorized. This invisibility in the realm of research and scholarship may be tied to the fact that bisexual programs and organizations receive only a minuscule amount of funding compared to either gay or lesbian organizations. As one study noted, over a forty-year period, bisexual programs and organizations received less than 0.3% of the funding awarded to their gay or lesbian counterparts. See Anthony Bowen, Forty Years of LGBTQ Philanthropy: 1970–2010 33 (2012). Furthermore, bisexuals face alarming physical and mental health disparities—including higher levels of mood and anxiety disorders and of suicidal ideation—compared to individuals of other sexual orientations, which may well be a consequence of the fact that bisexuality is stigmatized by both heterosexual and homosexual communities.
This background of invisibility and stigmatization helps illustrate the importance of Brian Dodge et al.’s Attitudes Toward Bisexual Men and Women Among a Nationally Representative Probability Sample of Adults in the United States, published in the journal PLoS ONE. The article—and the study on which it is based—fills an important gap in the existing research on bisexuality as to prevailing societal attitudes toward bisexuals and the persistence of common stereotypes of this group, despite the considerable advances in societal attitudes towards gays and lesbians. Continue reading "Illuminating Societal Stereotyping of Bisexuals and the Need for Strategies to Reduce Stigmatization"
Andrew F. Hessick, Remedial Chevron
, 96 N.C. L. Rev
__ (forthcoming 2018), available at SSRN
What’s not to love about a remedies approach to solving an Administrative Law problem? Professor Andrew Hessick’s forthcoming article, Remedial Chevron, aims to do just that. Critics of Chevron deference assert its foundation is shaky. Still, Chevron deference underlies countless judicial decisions. Originalists and textualists challenge Chevron’s legality under the Constitution, the Administrative Procedures Act (APA), and nondelegation doctrine. Two sitting Supreme Court justices call for its demise. Professor Hessick views these threats as dangerous and seeks to save Chevron through reinterpretation. He pragmatically alters tack to overcome formalist objections by reformulating our existing conception of Chevron to a “Remedial Chevron”—a constraint on the court’s remedial authority. The article’s goal is to save Chevron from peril and retain useful purposes. Courts would not be bound to agency interpretation but instead conduct de novo review of the law. This de novo power would be limited to the authority to vacate an agency determination only if it were unreasonable.
The reason the challenges pose threats to the continued vitality of Chevron, according to Professor Hessick, is that the logical conclusion to the legal challenges is that Chevron cannot stand. Professor Hessick seeks to avoid this conclusion and proposes a reconceptualization in order to save Chevron. Underlying his argument is a commitment to retaining the functional advantages of Chevron within the administrative system and to maintaining certainty and stability of agency regulation and adjudications. Continue reading "Chevron as Remedy"
William McGeveran’s new casebook on Privacy and Data Protection Law announces the death of the “death march” that anyone who has ever taught or taken a course in Information Privacy Law has encountered. The death march is the slog in the second half of the semester through a series of similar-but-not-identical federal sectoral statutory regimes, each given just one day of instruction, such as the Privacy Act, FCRA, HIPAA, Gramm Leach Bliley, and FERPA. Professors asked to cover so much substantive law beyond their area of scholarly focus (nobody can focus on all of these) usually resort to choosing only two or three. Even then, the coverage tends to be cursory and unsatisfying.
The death march points to a larger problem: information privacy law doesn’t really exist. At best, privacy law is an assemblage of barely related bits and pieces. The typical privacy course covers constitutional law, a little European Union data protection, a tiny bit of tort, some state law, and the death march of federal statutes. The styles of legal practice covered run the gamut from criminal prosecution and defense, to civil litigation, regulatory practice, corporate governance, and beyond. To justify placing so much in one course, we try futilely to bind together these bits and pieces through broad themes such as harm, social norms, expectations of privacy, and technological change.
My long-held doubt about the coherence of privacy law has led me to teach the course a bit apologetically, feeling like a fraud for pretending to find connections where there are almost none. I’m pleased to report that my belief isn’t universally held: McGeveran’s compelling new casebook is built on the idea that privacy law can be rationalized into a coherent area of practice and pedagogy, one it presents in an organized and tightly woven structure. Continue reading "An Argument for the Coherence of Privacy Law"
It has been almost forty years since the Second Circuit’s landmark decision in Filártiga v. Peña-Irala, which opened the door to human rights litigation in U.S. federal courts under the Alien Tort Statute (ATS). That statute—a creature of the first Judiciary Act in 1789—authorizes federal subject-matter jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” ATS litigation flourished in the decades following Filártiga, but more recently the Supreme Court has imposed new obstacles. In Sosa, the Court limited the scope of the federal common law cause of action that allows plaintiffs to assert violations of international law under the ATS. In Kiobel, the Court imported a presumption against extraterritoriality into ATS litigation, requiring that such claims “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.” And this Term, in Jesner v. Arab Bank, the Court immunized foreign corporations from liability under the ATS. (WNYC’s More Perfect released a terrific podcast on the ATS following the Jesner oral argument last October.)
If federal law and federal courts are less receptive to actions seeking remedies for human rights violations, what about the states? That is the crucial question that Seth Davis and Chris Whytock tackle in their excellent article. They persuasively argue that state courts and state law can play a role in this context, and that the Supreme Court’s restrictive decisions on questions of federal law do not automatically foreclose more sympathetic approaches at the state level. Continue reading "Human Rights Litigation and the States"
It doesn’t take masses of data or high-powered statistics to generate important results. It takes a good question. James Coleman asks one and thoroughly massages it for insight.
Corporations exercise their speech in multiple audiences. Marketing addresses consumers. The Human Resources Department addresses employees. Coleman focuses on corporate speech to the SEC and the EPA about the proposed Renewable Fuel Standard between 2009 and 2013.
The number of corporations whose statements in the rule-making procedure and in their annual reports can be compared are small. In 2009, Professor Coleman studied 33 corporations and only 11 in 2013. The small number is not as significant as the lessons we learn when we compare what is said to these two audiences. Continue reading "Talking Out of Both Sides of Your Mouth"
Robin B. Kar & Margaret J. Radin, Pseudo-Contract & Shared Meaning Analysis
, 132 Harv. L. Rev.
(forthcoming 2019), available at SSRN
By now, it’s old news that contracts have undergone a transformation in the couple of decades and not for the better. Just thirty years ago, it was a relatively rare occasion when the average American entered into a contract. It may have been a lease or a home purchase, or maybe a car rental agreement. But to purchase a shirt at the mall did not require signing a contract unless it was to sign one’s name on a credit card slip. What a difference the Internet makes. Now, people routinely are deemed to have entered into “contracts.” In their article, Robin Bradley Kar and Margaret Jane Radin address this phenomenon, putting the term “agreement” and “contract” in scare quotes to underscore how these types of “contracts” have “fundamentally different meanings” from their traditional counterparts. (P. 5.)They come up with a more appropriate term for these types of unread, ubiquitous contracts – pseudocontracts – and note the importance of using a different term to describe a different concept because the “use of homonymous terms for concepts that have evolved to have different meanings can mislead one to think that there is no fundamental difference” between the traditional contracting scenario and the one that online consumers routinely encounter. They write that “one must consider how contemporary methods of communication have altered the way parties use language during contract formation.”
Kar and Radin article is both normative and descriptive in that it describes how contract law should address interpretation issues and explains what courts have been doing – at least when they do it correctly (i.e. before ProCD and its ilk mucked things up and made teaching 1L Contracts so much more difficult). Their article is lengthy and chock-filled with terms which neatly capture hard-to-explain concepts. For example, they describe the incremental changes that contract law has undergone to doctrinally accommodate digital contracts as a “paradigm slip” which has the overall result of fundamentally changing core doctrinal concepts such as assent. They explain that their approach – “shared meaning analysis” is not “an alien approach to contract interpretation” but is “consistent with long-standing approaches that are rooted in a nuanced and careful assessment of the shared meaning that private parties produce when they use language to form contracts.” (P. 8.) This is basically the same “contextual” approach adopted by the Restatement (Seconds) of Contracts and the Uniform Commercial Code, but which courts have applied in an uneven and erratic manner. Their approach does more than explain what courts have done (when they are applying interpretation rules correctly); it provides more transparency and “precision to traditional approaches by building on the well-known linguistic distinction…between what sentences mean (including any sentences delivered in boilerplate text) and what people mean when they use language to communicate with one another (including to form contracts.”) (P. 9.) Kar and Radin turn to the work of Paul Grice, a philosopher of language, who distinguished between the meaning of a sentence and what a speaker means when using that sentence within a particular context. Continue reading "Resisting Contract Law’s Paradigm Slip Through Shared Meaning"
Are we all still “Legal Realists now?” So it is often assumed. But there are reasons to wonder. Today, it seems, many legal scholars are private Legal Realists only. Their public writing—whether scholarship, public commentary, or legal advocacy—shows few traces of Realism. They are writing to persuade judges or the general public. That counsels against admitting their arguments are malleable and have as much to do with external factors as the “internal” practice of law. To persuade this audience without causing resistance or cynicism, they cannot put all their cards on the table. Is that concealment Legal Realism, or something else—perhaps bad faith?
This question is especially relevant in the Age of Trump. Many legal scholars today are engaged in what Twitter calls #Resistance to the Trump presidency. They see an urgent need to convince judges to counter Trump’s actions. That includes a willingness to urge judges to stretch or reshape existing law. Any Legal Realist understands that this kind of stretching is possible, if not inevitable. They know that judges work with plastic materials and that the springs of their decisions are both “external” and “internal” to the law. Given the perceived urgency of “resistance” to the administration, will scholar-advocates openly acknowledge all this, at the risk of scaring off judges or alienating the public? Or will they keep such thoughts to themselves, insisting publicly that they only seek loyal interpretation and enforcement of “the law?” Continue reading "#Resistance, with Candor"
In the Fifth Edition of the Administrative Law Treatise, released in 2010, Richard Pierce described a raging debate within the academic community and the courts at that time over the appropriate role of democratic values and institutions in the administrative state. This debate encompassed such topics as the validity of unitary executive theory, how best to resolve disagreements between Congress and the President, and how to manage the risk that courts would become “the primary architects of national policy through their efforts to keep agencies within legal boundaries.” Eight years later, that same debate over the values, institutions, and structures of contemporary governance still rages on. A trio of pieces published last fall by Harvard Law Review both exemplifies and contributes to that ongoing conversation. As the author of this academic year’s Harvard Law Review Foreword, Gillian Metzger has penned a bold and provocative defense of the modern administrative state. Aaron Nielson and Mila Sohoni provided thoughtful response essays. Collectively, these pieces demonstrate scholarly engagement at its best.
As one might expect of the Foreword, Metzger’s article is masterful in its articulation and support of two separate but related propositions. The first is her identification of a combined political, jurisprudential, and scholarly trend that she labels “anti-administrativism” and characterizes as the contemporary resurrection of a very old fight. As she opens her piece, “Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal.” Metzger characterizes as anti-administrativist various actions and initiatives of the Trump Administration and the Republican Congress to reduce regulatory burdens, downsize the federal government, and reform the Administrative Procedure Act. Other presidents have pursued a similar agenda, but Metzger says their “promises … largely went unfulfilled” as compared to present efforts. Metzger also classifies as anti-administrativist a number of Supreme Court and D.C. Circuit cases—some from the 2016 Term, others predating it—concerning separation of powers principles, the Chevron and Auer standards of judicial review, and other constitutional issues. Continue reading "Administrative Law Scholarship in Our Present Political Moment"
Cynthia Estlund, What Should We Do After Work? Automation and Employment Law
, NYU School of Law, Public Law Research Paper No. 17-28, NYU Law and Economics Research Paper No. 17-26 (Jan. 5, 2018), available at SSRN
Reams of law review pages have been written about the effects of technological change on employment law. The typical narrative tends to portray technology as a disruptor, changing the structure of work and challenging the assumptions on which our employment law regime is built. Scheduling software, for instance, enables employers to assign workers for last-minute shifts and send them home during slow periods, creating a form of wage and hour instability that was never contemplated by wage and hour law. App-based companies build their entire business models around workers they classify as independent contractors, and yet retain some measure of labor control, putting pressure on the legal definition of “employee.”
Cynthia Estlund’s timely new working paper offers a different description of technology’s relationship to the law that both challenges and complements the narrative above. Her particular focus is automation, or the takeover of previously human-performed tasks by technology both “hard” (robots) and “soft” (algorithms). Estlund portrays automation as related to the larger trend that David Weil has labeled “fissuring,” or employers’ “flight from direct employment.” Employers might choose to hire workers through layers of subcontractors, they might convert employees to independent contractors, they might hire foreign workers in other countries, and they might replace human workers entirely with automated or machine-provided labor. In the public imagination, as Estlund points out, the shorthand for these trends might be “Uber,” “China,” and “robots.” Each of these moves reduces the number of directly employed workers, and, concomitantly, reduces employers’ legal and regulatory obligations. Instead of focusing on the effect of these moves on employment law, however, Estlund conceives of employment law, at least in part, as their cause. Continue reading "Uber, China, and Robots"