Feb 5, 2025 Christine BartholomewCourts Law
Since 2005 and passage of the Class Action Fairness Act, scholars have bemoaned the ongoing attack on class action procedures. Much of this work has focused on judicial reinterpretations of Federal Rule of Civil Procedure 23. Plaintiffs face new prerequisites to aggregating their claims such as: (1) stricter pleading standards; (2) the judicially created “ascertainability requirement”; and (3) earlier and more frequent Daubert motions, just to name a few. These increased procedural hurdles are already hampering private enforcement efforts. In 2022, the Eleventh Circuit lobbed a new challenge when it banned incentive awards for class representatives in Johnson v. NPAS Solutions, LLC. Alexander J. Noronha explores the decision—warts and all—in his student note.
Incentive awards are never guaranteed; plaintiffs file motions articulating why class representatives deserve recompense beyond their share of a settlement or judgment award. Judges evaluate these requests using multiple factors to consider representatives’ efforts on behalf of the class. Since passage of Rule 23 in 1966, courts in every circuit have approved such motions under the right circumstances—despite Rule 23 providing no explicit authority for such awards. In categorically foreclosing such awards, the Eleventh Circuit upended close to fifty years of precedent. Continue reading "Preserving Incentive Awards"
Feb 4, 2025 Jennifer KohCriminal Law
The analogies used to convey the dysfunctions of immigration adjudication to outsiders are often colorful, but not hyperbolic. The gambling game of roulette describes asylum decisionmaking, because the luck of the draw largely determines whether a noncitizen will receive asylum or not. Except, of course, in the case of “asylum-free zones,” where immigration judges simply deny almost all the time. Immigration judges decide cases that carry death penalty-like consequences with the resources of traffic court. And so on. Sarah Vendzules adds another powerful analogy to this list: zombies. More precisely, the practice of immigration adjudicators treating certain forms of evidence like zombies, irrefutable and “effectively impossible to kill.” (P. 697.)
The evidence that Vendzules interrogates is the information contained in documents produced by a noncitizen’s prior criminal law proceedings, or what she calls “criminal legal system (CLS) outputs.” Such documents include police reports, criminal complaints, sentencing reports, transcripts of various proceedings, guilty pleas, and jury verdicts, to name a few. The problem is that in the world of immigration, adjudicators treat CLS outputs as though they constitute established facts. Yet as any student of criminal procedure knows, different procedures and standards of proof in the criminal system create its many different records. Compare police reports to guilty verdicts. Police reports are famously unreliable, potentially containing “unsworn allegations,” “multiple levels of hearsay,” and “may be an amalgamation of information from several unidentified sources.” (P. 716.) Guilty verdicts after trial, on the other hand, are produced “with all the processes and protections that the system can muster.” (P. 719.) Continue reading "Zombies in Immigration Adjudication"
Feb 3, 2025 Jack BeermannAdministrative Law
When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence and prominence of the MQD in administrative law has led scholars to ask just what kind of legal doctrine the MQD is. If the voluminous scholarship on Chevron is any indication, there will be much, much more to come.
Sometimes, to figure out what something is, you first have to figure out what it isn’t. That is what Professor Anita Krishnakumar has helped us do with her excellent article What the New Major Questions Doctrine is Not. In this article, Professor Krishnakumar persuasively argues that neither scholars nor jurists have provided convincing characterizations of the doctrine. After illustrating how all attempts thus far to categorize the MQD have failed, she offers her own tentative characterization, recognizing that a definitive answer is impossible because it’s relatively early in the life of the current MQD and because the Court’s opinions invoking the MQD are somewhat inconsistent and unclear, making a definitive characterization impossible. Remind anyone of Chevron scholarship? Continue reading "What the Hell is the Major Questions Doctrine?"
Jan 31, 2025 Charles O'KelleyCorporate Law
Kyle Edward Williams, Taming the Octopus: The Long Battle For The Soul of The Corporation (2024).
In Taming the Octopus, historian Kyle Edward Williams focuses on the evolution of the modern corporation from its birth in the early days of the twentieth century to the present. This work deftly synthesizes a vast array of historical and legal research with the author’s own archival research. The result is a fast-moving, comprehensive, and captivating story of the people and events that have shaped scholarly and political debate about, and understanding of, the corporation and its place in society as the United States gradually assumed its place as world hegemon. This is a book intended for the informed citizen but should be of special interest to teachers of Corporations and related subjects, for here the reader will encounter the giants who have affected what we think and believe about what the corporation is and how it should be governed, as well as the debates that have raged throughout the life of the modern corporation.
The book begins and ends with the imagery of the modern corporation as an imaginary sea creature, an octopus as terrifying and as untamable as the giant squid in Jules Verne’s Twenty Thousand Leagues Under the Sea. That imagery had been used in books and editorial cartoons in the first decade of the twentieth century to caricature the might of emerging business behemoths, including the Standard Oil Trust, whose tentacles reached into every aspect of American life and controlled the politicians who acted counter to the public interest as the mighty creature demanded. The public indignation and resolve to combat this evil creature is an underlying theme throughout the book, which Williams identifies with three continuing tensions in the political and cultural life of the modern corporation. Continue reading "The Continuing Evolution of the Modern Corporation: What’s Past is Prologue"
Jan 30, 2025 Nancy KimContracts
Andrea Boyack’s article, Abuse of Contract: Boilerplate Erasure of Consumer Counterparty Rights, examines “problematic” provisions in consumer contracts and may be viewed as a companion piece to her previous article, The Shape of Consumer Contracts, 101 Denv. L. Rev. 1 (2023) which is more theoretical. Both articles provide a valuable contribution to the literature on boilerplate and merit attention, although I focus this review on Abuse of Contract.Professor Boyack examined the online terms and conditions of 100 companies in a variety of industries. The study aimed to answer two questions: “(A) How prevalent are boilerplate provisions that limit consumers’ legal rights? and (B) to what extent do particular companies use such boilerplate limitations?” (P. 4.) Her study is one of several in recent years taking an empirical approach to terms and conditions, including one by Samples, et.al. that I previously reviewed here.
Boyack identified four broad categories of terms: “(i) dispute resolution mandates, (ii) liability waivers, (iii) limitations on damages, and (iv) pre-authorization of unilateral modifications.” (P. 5.) For accuracy, the terms and conditions were examined twice by two different researchers during 2021-2022. The study included both public and private companies, and these 100 companies belonged to an array of sectors, including retail, financial services, social media, and travel. The study also tracked eleven types of rights-deleting provisions. According to Boyack’s study, 66% of the contracts surveyed contained a mandatory arbitration clause, and the clause was more prevalent in some industries than in others. For example, 82% of retail sector contracts contained such a clause compared to 42% of financial services sector contracts. Similarly, 94% of retail sector contracts contained a waiver of the right to jury trial compared to 42% of financial services sector contracts. The disparity among sectors is perhaps not surprising given the increased governmental scrutiny and regulation of terms, such as mandatory arbitration, in consumer financial services contracts. Continue reading "Debunking the Market-Based Myths of Boilerplate"
Jan 29, 2025 Amy SalyzynLegal Profession
New kid on the block. Legal ethics, as a scholarly discipline, has long been referenced in relation its youth—and, fair enough, given its relatively recent emergence in the United States in 1970s and even later arrival in other countries. But another story about legal ethics also exists. This is a discipline that has, over the last several decades, clearly come of age. We now have an extensive body of scholarship full of rich, diverse writings and lively conversations. While the full breadth of legal ethics is beyond any one book, we are fortunate to get a captivating snapshot of the field in the recently published Leading Works in Legal Ethics, edited by Julian Webb.
Leading Works aims not to identify “canonical” works but rather to allow scholars to explore what they personally view as a “leading work.” The result is a vibrant tapestry. Individual chapter authors bring their own unique threads to the collection—some of anticipated hues, while others wholly unexpected. Continue reading "New Kid No Longer: Tracing Legal Ethics’ Growth and Charting its Future"
Jan 28, 2025 Anne Marie LofasoWork Law
Industrial democracy, the foundational metaphor invoked to support the National Labor Relations Act, is a helpful analogy for understanding why workers should have workplace representation to bargain collectively over wages, hours and other terms and conditions of employment by placing workers’ voice within the sphere of a national ideal—democratic governance.
But any analogy can be stretched to its breaking point. In The Labor Gerrymander, Joel Heller argues that, although the democracy analogy in broad strokes is instructive in the labor context, the specific concept of political gerrymandering is ill-suited to explain bargaining unit determinations under labor law. Continue reading "Taking Political Analogies Too Far: Why Applying the Concept of Political Gerrymandering To the Labor Context Doesn’t Work"
Jan 27, 2025 Solangel MaldonadoTrusts & Estates
Fetal personhood statutes—laws that grant the same legal protections to embryos as to live children—have been the subject of significant discussion since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the federal constitutional right to abortion. The impact of these laws was magnified by the Alabama Supreme Court’s recent decision in LePage v. Ctr. for Reprod. Med., P.C., holding that frozen embryos are children for purposes of Alabama’s Wrongful Death of a Minor Act and must be treated the same as children born alive regardless of “developmental stage, physical location, or any other ancillary characteristics.” While the impact of fetal personhood statutes on abortion, contraception, and assisted reproduction may be rather obvious, their effects on trusts and estates law or tax law are more speculative. Yet, this is the focus of Bridget Crawford’s and her students’ (Alexis C. Borders and Katherine Keating) article, Unintended Consequences of Fetal Personhood Statutes: Examples from Tax, Trusts, and Estates, which demonstrates how fetal personhood laws have the potential to destabilize the transmission of property at death, specifically the rules governing intestacy, trust administration, trust duration, and the generation-skipping wealth transfer tax.
The article demonstrates how fetal personhood statutes might disrupt settled understandings of who may inherit under intestacy laws. It points out that if an embryo is treated as a person under the rules of intestacy, then it has the same rights to inherit from a parent and through a parent (from a grandparent, aunt or uncle, for example) as a living child. The article illustrates how such a right could present challenges when distributing an intestate decedent’s estate since it might require determining whether any surviving family members had pregnant partners when the decedent died. It explains:
[A]ssume that Helen, a widow, dies intestate survived by her adult daughter Jane and her adult son Joe. At the time of Helen’s death, Joe’s partner is pregnant with their first child. Just a few days after Helen dies, Joe himself is killed in a tragic accident. Helen’s intestate heirs are Jane and the zygote-embryo-fetus in gestation. Unless the personal representative inquires whether Joe’s partner was pregnant, the personal representative might erroneously believe that Jane is Helen’s sole surviving heir and distribute the entire estate to Jane. (P. 1178.) Continue reading "Constraining the Reach of Fetal Personhood Statutes"
Jan 24, 2025 Ronen AvrahamTorts
Roy Baharad, Stuart Minor Benjamin, & Ehud Guttel,
Anti-Patents, 91
Univ. Chi. L. Rev. 239 (2024).
What Do Blitz, Bic, and DuPont have in common? Blitz U.S.A. declined to add flame arrestors to its gasoline cans, despite severe injuries from explosions. Bic led the lighter market but withheld childproof designs. DuPont identified health risks in its PFOA products but opted against safer disposal methods. The reason these injurers failed to implement socially desirable safety innovations in their products was allegedly to avoid the liability risks associated with these changes. By not implementing them, they were able to evade liability, either because the harm to consumers remained unknown outside the company or because, in the absence of knowledge about the innovative safety device they chose not to develop, the product was considered legally not defective.
The problem exemplified in all these cases is that, at times, tort law provides tortfeasors with incentives to hide innovation, because implementing a safety measure can reveal a safety problem that would otherwise remain hidden. Continue reading "When Injurers Innovate for Safety: Bridging the Gap Between Tort and Patent Law"
Jan 23, 2025 Charlene D. LukeTax Law
Emily Cauble explores the extent to which the tax system allows taxpayers “to benefit from hindsight” in her article, Taxpayers’ Tax Election Regrets. Cauble uses concrete tax election examples to categorize the types of hindsight that cause taxpayers regret and to offer recommendations on how the tax system should approach hindsight to “bring more coherence to tax law’s approach and better align its approach with underlying policy goals.”
Cauble’s focus is on explicit, rather than implicit, tax elections; thus, the focus is on elections that require a formal indication of choice to the IRS. Cauble further considers the availability of filing a late election, revoking an election, and filing a protective election. Cauble analyzes formal election processes to highlight when an election-related decision may bring a taxpayer regret and when a taxpayer is able to use hindsight to make an adjustment to the original choice. The article concludes with recommendations for improvements to how the tax system allows hindsight, with the recommendations guided by tax policy goals relating to revenue-raising, fairness, and administrability. Continue reading "In (Tax) Hindsight: When Should the Tax System Ease Taxpayer Regrets?"
