Mar 13, 2013 Allan ErbsenCourts Law
Courts and markets perceive mass tort victims from distinct perspectives that complicate aggregate litigation. Before mass torts cause injuries, prospective victims often are fungible variables in an actuarial model. Actors can foresee the possibility of negligence and identify groups who they might harm without knowing which specific members will incur losses. For example, airlines know that planes may crash and pharmaceutical manufacturers know that drugs may cause adverse affects. Yet even if the risks are known, injuries can occur at unpredictable times to unpredictable subsets of a risk-bearing population. Even actors who intentionally violate the law by making fraudulent claims or adopting discriminatory policies often target demographics rather than individuals. The anticipated victims are faceless statistics in a crowd.
But after tortious conduct causes injuries that generate litigation, victims generally have known identities. Current rules governing civil adjudication enable defendants to both ignore and exploit these individual identities when proposing procedures for resolving plaintiffs’ claims. A defendant that desires a global settlement (or global dismissal) can continue to view victims as an undifferentiated mass by making offers or arguments that are applicable to the entire group. If these efforts fail, defendants often challenge further aggregate approaches to dispute resolution by contending that each alleged victim is a unique individual with a unique claim requiring its own day in court. When judges accept these arguments, victims of wholesale injury become the potentially unwitting recipients of retail justice. This claim-by-claim adjudication consumes scarce judicial resources, burdens litigants, and can produce inconsistent judgments in similar cases. Continue reading "Seeking Accuracy in Aggregate Litigation"
Mar 11, 2013 David MillonCorporate Law
Robert G. Eccles, Ioannis Ioannou, & George Serafeim, The Impact of a Corporate Culture of Sustainability on Corporate Behavior and Performance, Harvard Business School Working Paper 12-035 (2012), available at SSRN.
Progressive corporate law scholars have tended to ignore business or economics research as potential support for their normative claims. When seeking interdisciplinary insights they have generally looked elsewhere. This is not surprising, given that business and economics scholarship often reflects assumptions about corporate law that progressives reject, in particular a shareholder primacy orientation that prioritizes shareholder wealth maximization while disregarding social costs. For progressives, business and economics scholarship may also bear the taint of its embrace by mainstream corporate law scholars, many of whom have a strong law-and-economics, empirical perspective that draws them naturally to finance, accounting, and management literature.
Those interested in corporate social responsibility (CSR) and the problems of managerial and investor short-termism should not overlook the paper reviewed here. Robert Eccles, Ioannis Ioannou, and George Serafeim (professors at Harvard, London, and Harvard business schools respectively) make an important contribution to debates among corporate law academics about CSR as an alternative to shareholder primacy. Their paper also has significant relevance to those who are concerned about the costs of shareholder primacy’s current incarnation as an obsession with quarterly earnings and their effects on share prices. The authors present a sophisticated, empirically grounded demonstration of the economic advantages enjoyed by corporations that have chosen to invest in stakeholder relationships and to pursue a long-run approach to wealth creation. Because these companies are shown to outperform financially their more traditionally-minded, shareholder-primacy, short-term-oriented rivals, CSR advocates can assert a ‘business case’ for their belief that corporations should attend to the well-being of nonshareholding stakeholders, including employees, customers, local communities where the firm operates, and those who are affected by its impact on the environment. The business case also lends support to critics of short-termism who have no particular interest in CSR. Continue reading "The Business Case for Corporate Social Responsibility"
Mar 8, 2013 Christopher SprigmanIntellectual Property Law
Thanks in large measure to the ongoing worldwide smartphone patent brawl between Apple and Samsung, patents are in the news a lot these days. And that is especially true of design patents – i.e., the branch of the patent law that grants rights in novel, non-obvious and ornamental designs. Apple pressed design patent claims against Samsung that included broad claims of ownership over rectangularly-shaped electronic devices. To many observers, these seemed . . . well . . . crazy. Take Apple’s patents on the shape of the iPhone. Here’s a design drawing from the Apple D677 patent.
Continue reading "Our Lyin’ Eyes: Design Patents and the Perils of an “Eyes Alone” Approach to Novelty and Infringement"
Mar 6, 2013 Mark SeidenfeldAdministrative Law
Jennifer Nou, Agency Self-Insulation under Presidential Review, ___ Harv. L. Rev. ___ (forthcoming 2013), available at SSRN.
Perhaps the hottest topic in administrative law of late is the propriety of presidential influence on agency action. To its credit, that literature distinguishes between the agencies and the White House as two distinct institutions that may not agree on particular regulatory outcomes. But, the literature does not go much beyond this simple distinction in its picture of the executive branch, treating both White House and agencies as black boxes, each of which acts with a consistent purpose. At the same time, scholarship has focused on agencies as strategic actors vis-à-vis the judiciary, choosing methods of policymaking to minimize the potential for courts to interfere with that endeavor. In “Self-Insulation under Presidential Review,” Jennifer Nou investigates the extent to which agencies might act strategically amidst resource constraints as a means of minimizing White House influence on their policymaking discretion. In so doing, Nou considers the internal structure and decisionmaking processes of both agencies and the “institutional presidency” to paint a sophisticated picture of their interaction. The result is an article that provides insight into the decisionmaking of both these institutions, and provokes much thought about how their interaction might affect administrative law.
Nou explicitly limits her investigation of White House influence to its formal review of agency rules, as mandated by various executive orders, which she dubs “presidential review.” She makes clear that while the Office of Information and Regulatory Affairs (OIRA) coordinates such review, it can involve many entities, including those within the Executive Office of the President (EOP) and other agencies. She begins by explaining why agency staff and in many cases agency heads can disagree with the preferences of the institutional President on many regulatory policy issues. She next explains that, from an agency’s perspective, presidential review poses constraints similar to judicial review in that, generally, both require the agency to invest precious resources to avoid reversal of its decision. But, she notes that presidential review is also costly for the executive branch reviewers; this cost allows agencies some strategic latitude to minimize its chances of policy reversal by increasing the White House’s costs of review, rather than by investing in more comprehensive and higher quality decision-making. For example, agencies can avoid review altogether by simply abandoning a policy change, by making policy through adjudication and perhaps even by guidance document. They may be able to avoid review or minimize the level of scrutiny to which a rule is exposed by designating the rule as not economically significant or not significant at all, or by providing only opaque and general information about costs and benefits. Finally, they may be able to parlay statutory deadlines or the end of a President’s term effectively to shorten the period for OIRA review, thereby decreasing the level of scrutiny. Continue reading "Strategic Interactions Between Administrative Agencies and the White House: A Welcome Look into the Black Box of the Executive Branch"
Mar 4, 2013 Solangel MaldonadoTrusts & Estates
In their forthcoming article, Torts and Estates: Remedying Wrongful Interference with Inheritance, John C.P. Goldberg and Robert H. Sitkoff illustrate the potential pitfalls of recognizing causes of action without any awareness or consideration of how other areas of law deal with claims arising out of similar facts. They argue that courts’ relatively recent recognition of the tort of wrongful interference with an expected inheritance is ill-conceived for two reasons. First, it is unnecessary given the remedies available under inheritance law—a will contest or action for restitution by way of constructive trust. Second, it conflicts with specialized inheritance law doctrines and procedures (such as inferences, presumptions, and burden shifting schemes, higher evidentiary standards, bench trials, and short statutes of limitations) developed to address the evidentiary challenges raised when the only person who can conclusively clarify or confirm his donative wishes is dead. A disappointed expectant beneficiary who brings a claim for tortious interference with an expected inheritance will have fewer procedural hurdles to clear because courts have rejected or ignored the rules and procedures that apply to will contests and restitution claims. A tort plaintiff may also recover substantial damages—including nonpecuniary and punitive damages—remedies that are unavailable in a will contest or action for restitution.
Goldberg and Sitkoff further argue that interference with expected inheritance claims are problematic conceptually. Since a donor’s wishes are the guiding principle of inheritance law, a disappointed expectant beneficiary has no independent right to the donor’s property absent the donor’s exercise of his freedom of disposition. As such, when a disappointed expectant beneficiary brings a wrongful interference with an expected inheritance claim, she is suing to vindicate the donor’s right to freedom of disposition rather than her own rights. However, as every first year law student knows, a tort plaintiff cannot recover for a wrong done to another person. She can only sue for a wrong done to her. Of course, we suspect that a disappointed expectant beneficiary doesn’t sue only (or primarily) to vindicate the donor’s freedom of disposition but to secure her interest in the property. While that may be the case, Goldberg and Sitkoff point out that the law cannot recognize her interest in the decedent’s property independent of decedent’s wishes because such interest would directly conflict with decedent’s freedom of disposition. Continue reading "Tort Law Meets Inheritance Law"
Mar 1, 2013 Ann BartowTechnology Law
“What is a Legal Information Institute when the transcripts of judgments are refused for publication – even by the courts themselves – by the company contracted to provide the transcription service on some very shady grounds of copyright?” That is one of the questions lingering in the wake of a very ambitious recent Free Access to Law project.
The mission of the Legal Information Institutes (LIIs) it to maximize free access to public legal information such as legislation and case law from as many countries and international institutions as possible. To that end they produced the publications linked above. The “Local Researcher’s Methodology Guide” explains the reasons for the “Free Access to Law – Is It Here to Stay?” project in detail, and then provides instructions for researchers, including an “environmental scan matrix” and associative questionnaires. Continue reading "Free Access to Law – Is It Here to Stay? Research Publications of Interest for Anybody who Believes In The Rule of Law"
Feb 28, 2013 JotwellJotwell
• Brian Tamanaha has stepped down as co-Section Editor of the Jurisprudence Section but will remain a Contributing Editor; Robin Kar will be stepping up to co-edit the section with Brian Bix. Brian T. has been a great editor and he leaves the section in excellent shape and in capable hands.
• This week we rolled out version 1.3 of the Jotwell theme; few if any of the many changes under the hood should be visible to readers, but if you notice anything more odd or out-of-place than usual, please let us know.
• One major consequence of the new theme is that we will be able to have a group of mini-sections sharing virtual real estate in a new section we plan to call ‘Lex”. These mini-sections will provide a home for topics in law which, due to a smaller scholarly production, might not merit publishing a review every month. We’re only just starting to put this together – suggestions for topics we should cover and for people who might be managers of mini-sections are both welcome – so it likely will be a few months before this section debuts.
• Jotwell’s student editors will soon be graduating or heading off to other summer employment. Advertisements for a Miami Law student to serve as summer editor will be going up soon, but any Miami Law student who reads Jotwell and responded to this message would have an inside track.
Feb 27, 2013 Anthony SebokTorts
In The Moral Significance of Risking, John Oberdiek offers a theory of why risk imposition is prima facie wrong. Oberdiek admits that his argument will only be persuasive if he applies it to risk imposition in its purest form (what he calls “risking”). Risking’s moral significance – if it has any – must be based on the imposition of the risk of harm, and not the harm itself. In other words, if risking is wrong, it shouldn’t matter in our evaluation of it that the risk of injury never ripened into an injury. Thus, second-order effects of risking on the victim, such as emotional distress, cannot justify the conclusion that risk-imposition is wrong. Similarly (although Oberdiek does not discuss this) instrumentalist accounts for imposing liability on the basis of risk obviously cannot explain why risking is wrong, given that risking is significant to an instrumentalist only to the extent that deterring it would result in the optimal level of harm.
Although Oberdiek claims that his article is about risk imposition from the perspective of moral philosophy, he is quite conscious of the fact that his argument, if accepted, would reshape debates in law, especially tort law. Further, he recognizes that establishing the fact that risking is wrong does not answer the question whether any particular act of risking should be condemned or should be the basis of a liability judgment. His only point in this article is to say that risking is a prima facie wrong, and it may be the case that it is justified in many situations in the balance of reasons, or excused, or, in the case of private law, left unrecognized like other moral wrongs that do not generate liability. Continue reading "Are Risks Wrong?"
Feb 25, 2013 Darren RosenblumFamily Law
Clifford Rosky, Fear of the Queer Child, 61 Buff. L. Rev. (forthcoming 2013), available at SSRN.
For the nascent lesbian and gay rights movement (before “queer” was repurposed), children and young adults were the most taboo of rights topics. Gay rights meant sexual liberation, as popularized in films like “Cruising” and songs like the Village People’s “YMCA.” Apart from Harvey Fierstein’s gay mama role in “Torch Song Trilogy,” queer parents were invisible. Widespread allegations of “recruiting” young people led advocates to avoid discussions of queer influences on children. As a gay youth activist in the mid-1980s, I remember the resistance and anxiety around gay youth issues within the national and local gay rights movement. Even in the ensuing decades, advocates’ references to gay and lesbian parents defensively emphasized similarities to straight parenting. Only recently have we begun to consider differences between queer and straight parents without a heterosexist lens. Pop culture, from “Modern Family” to the “New Normal,” has recently given us a window for reconsideration, albeit one rife with bubble gum stereotypes.
Cliff Rosky avoids such traps with his latest work, Fear of the Queer Child. There, he unpacks the long history of heterosexism in parenting and delineates its remnants. In his previous work, Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homophobia, Rosky assessed judicial treatment of gay and lesbian parents though gender-differentiated stereotypes in custody and visitation cases. There, his deft articulation of the interrelationship between sexual identity and gender stereotypes in the parenting context stood out as especially new. His assertion was that gender – of the parent, the child and the judge – plays a dominant role in the elaboration of homophobic and heterosexist stereotypes about gay and lesbian parents. The proof he deployed confirmed my long-held belief in the centrality of gender to heterosexism. In particular, he found that “recruitment” was a charge levied against parents of sons, and explored how the male judges were more likely to adhere to stereotypes about gay and lesbian parents. Like Father, Like Son avoided a facile identitarianism and did not get stuck in a lengthy refutation. Fear of the Queer Child holds even more potential to affirm the positive and yes, different, nature of queer parenting. Continue reading "Embracing Queer Childrearing"
Feb 22, 2013 Susan MorseTax Law
David Gamage, Perverse Incentives Arising From the Tax Provisions of Healthcare Reform: Why Further Reforms Are Needed to Prevent Avoidable Costs to Low- and Moderate-Income Workers, 65 Tax L. Rev. 669 (2013), available at SSRN.
What if Obamacare changes the patterns of lower-income work? Murmurs in the news suggest that this is happening, for example through increased use of part-time schedules. In his forthcoming article, David Gamage explains the powerful incentives that the Affordable Care Act (ACA) presents to employers to ensure that lower-income workers will be insured through public exchanges rather than employer-provided health insurance. These incentives to differentiate apply for a huge number of employees, as they apply until households have income of between 2.25 and 3.5 times the poverty level.
Gamage supports the ACA, but argues that it presents lower-income workers and their employers with a catch-22. If employers provide health insurance, workers will overpay for it. But if employers do not provide health insurance, workers cannot access traditional full-time-with-benefits jobs. Continue reading "Obamacare and Lower-Income Workers"
