Jan 8, 2025 Maria GranikCriminal Law
Criminal law aims to hold wrongdoers accountable for the harm they cause. As Deputy Attorney General Lisa Monaco put it when delivering her 2024 White Collar Crime National Institute Address: “[a]ccountability promotes fairness, drives deterrence, and fosters respect for the rule of law.” Are prosecutors successfully holding corporate wrongdoers accountable for the crimes they commit? Most commentators answer this question in the negative. In their recent paper, Thomas and Diamantis maintain that corporate criminal law is in crisis because the sanctions currently available to prosecutors neither deter misconduct nor express the moral condemnation usually attached to criminal sanctions. The authors make a bold proposal for reform: corporate branding. Their argument for reputational sanctions that shame corporate criminals is both original and persuasive.
Thomas and Diamantis begin by establishing that corporate punishments currently in use fail to serve the goals of criminal law. Criminal fines have limited effectiveness and run the risk of becoming merely “the cost of doing business” for companies that engage in profitable misconduct. As the authors point out, there is nothing that sets these sanctions apart as especially punitive in contrast to civil fines. In fact, criminal fines are often lower than civil penalties a company might face. In addition, prosecutors have no recourse when corporate criminals cannot afford to pay those fines. Individuals can be imprisoned for failure to pay, which imposes appropriate consequences and creates deterrence. Companies, by contrast, might have their fines lowered or get the benefit of pretrial diversion agreements that require a mere promise not to engage in criminal activity again—a promise that companies often break with impunity. Similarly, probationary supervision and mandatory compliance programs are insufficiently punitive and do not adequately punish and deter corporate crime. Continue reading "Rethinking Shame in Corporate Criminal Law"
Jan 7, 2025 James E. PfanderCourts Law
E. Garrett West,
Refining Constitutional Torts, 134
Yale L.J. __ (forthcoming 2025), available at
SSRN (Aug. 11, 2023).
In a bracing engagement with a constitutional tort doctrine that he rightly describes as in disarray, Garrett West offers a diagnosis and proposes a cure. The doctrine has an inconstant commitment to the history of common law tort and an off-again, on-again engagement with first the nullification and then the affirmative rights (or duty) models of constitutional litigation. He offers a “deceptively simple” cure for the problems: with a better understanding of the nature of constitutional duty, the Court might better construct a coherent body of law to define constitutional rights and remedies.
Recounting the troubles with constitutional litigation, West begins with a familiar set of concerns. Despite the recognition of constitutional tort liability in Monroe v. Pape for state action claims under § 1983 and in Bivens v. Six Unknown Agents for claims against federal officers, limits on the doctrines narrow access to remedies. Bivens gives way in the hands of a Court wary of recognizing rights to sue, while forms of absolute and qualified immunity complicate effective redress. West also highlights the Court’s inconsistent approach to defining the elements of a constitutional tort, sometimes drawing on common law tort doctrine to fill out the elements and sometimes focusing instead on the constitutional text and related considerations. Continue reading "Clarifying Constitutional Torts"
Jan 6, 2025 Gina-Gail FletcherCorporate Law
In the wake of the extrajudicial murders of George Floyd and Breonna Taylor, millions protested across the U.S. and worldwide against the racial and social injustices that persist within society. The 2020 “racial reckoning” protests were the largest racial justice demonstrations in the U.S. since the Civil Rights movement of the 1950s and witnessed a broad spectrum of society coming together to demand redress for pervasive inequities across race, gender, and socioeconomic lines. Even companies, that had traditionally preferred to stand on the sidelines with respect to racial justice issues, stepped into the fray, publicly declaring their support for racial justice and promising to do their part to combat racial inequities. As part of these efforts, hundreds of companies since 2020 have voluntarily pledged to increase people of color within their ranks, specifying numerical targets and timelines for achieving these goals.
In her new paper, Racial Targets, published in Northwestern Law Review, Professor Atinuke Adediran tackles the thorny question: are corporate racial targets legally permissible? Adediran joins in conversation with several scholars who have been considering how the 2020 “racial reckoning” has impacted corporate behavior. To do so, she examines voluntary racial goals (i.e., racial targets) that companies have publicly established for themselves in response to shareholder, investor, and employee pressures to support racial equity. Adediran argues that racial targets are meaningfully distinct from racial quotas and, as such, despite the constitutional illegality of the latter, the former are within the boundaries of the law. Continue reading "Racial Goals & Private Companies: What’s Legal & What’s Not"
Dec 16, 2024 A. Michael FroomkinJotwell
Jotwell is taking a short Winter break. Jotting should resume on Monday, January 6, 2025.
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Dec 13, 2024 Richard MurphyAdministrative Law
Ninety years ago, a unanimous Supreme Court thought it obvious that Congress has constitutional authority to restrict presidential removal authority over FTC Commissioners because, without such limits, the President would have unconstitutional power to direct the FTC’s quasi-legislative and quasi-adjudicative functions. Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935). These days, thanks in large part to a series of executive orders issued over the last fifty years, it is broadly accepted that presidents have power to direct agency rulemaking discretion, at least if we exclude independent agencies (which, on a closely related note, are hanging on to their independence by the thinnest of constitutional threads). We live in an “age of presidential administration.” (P. 2221).
In The Making of Presidential Administration, Professors Ahmed, Menand, and Rosenblum (collectively, “AM&R”) provide a fascinating, critical retelling of this transformation that focuses on the roles of politics and ideology in driving institutional and legal development. Plus, they accuse Justice Kagan of committing Whig history. Whigs, as note 685 explains, like to “present historical arcs as ‘progressive,’ moving from primitive pasts to enlightened presents.” (P. 2212 n. 685). Continue reading "Wait a Second – Who Put The President in Charge of Everything?"
Dec 12, 2024 Robert GordonLegal Profession
A Senator or editorial or public personality or group of protestors expresses outrage that a lawyer or law firm undertakes to represent bad people or corporations pursuing bad ends. Bradley Wendel, the eminent legal-ethics scholar and legal philosopher, notes that “lawyers patiently…respond that representing apparently-evil or distasteful clients is what lawyers do” and should do. He adds: “This [response] happens every. single. time.” (P. vi.) The response expresses what legal ethics scholars call the “nonaccountability principle.” So long as lawyers represent their clients competently and within the boundaries of the law and legal ethics rules, they should be beyond criticism and reproach. The principle usually is accompanied by an instrumental rationale: If lawyers are tainted by their clients’ apparent moral failings, they will be less willing to take on unpopular clients and causes, and justice and the common good will suffer. In Canceling Lawyers, Wendel brings a sharp analytic intelligence, a clear and engaging prose style, and a repertoire of hundreds of examples and case studies to bear on the standard response. He finds the response severely wanting, yet ends up at a pretty similar bottom line.
Readers will find all the familiar cases here: The Cravath firm lawyers who represented Credit Suisse in litigation against heirs of Jews who claimed the bank had laundered treasures looted from their families by Nazis. The Harvard housemaster who volunteered to help defend Harvey Weinstein from rape charges. The Black ACLU attorney who defended the KKK against compelled disclosure of its membership list. The Gibson Dunn firm that represented an oil company alleged to be polluting indigenous land and peoples in Ecuador. The Kirkland & Ellis firm that gave up representing gun manufacturers in the face of pressure from other clients, against the objections of a partner who left the firm in protest. The law student boycott of the Paul Weiss firm for its representation of ExxonMobil. The government lawyers who justified torturing suspected terrorists in the Bush (Jr.) Administration. And many, many more. Continue reading "Should Lawyers be Accountable for their Clients?"
Dec 11, 2024 Orla LynskeyTechnology Law
The role of private digital infrastructure providers in shaping the exercise of civil liberties in the digital sphere, and the role the law plays in facilitating this power, have been the subject of debate in recent years. Relatively less attention has been paid to the impact these ‘new governors’ have on the delivery of public services. As the State becomes increasingly dependent on privately provided AI systems, there is a real risk that public values (such as participation, transparency, and accountability) will be weakened. Historically, procurement rules have been used to ensure that public-private partnerships align to public objectives and values. Many lawyers, myself included, therefore surmise that when the State buys AI systems to assist with the delivery of public services, public procurement law will act as a constraint on the power granted to private operators by the arrangement.
In Responsibly Buying Artificial Intelligence: a ‘Regulatory Hallucination,’ Albert Sanchez-Graells clinically dispels such misplaced faith in procurement law, labelling it a ‘regulatory hallucination.’ Like AI hallucinations, this type of regulatory hallucination is ostensibly plausible but ultimately incorrect, leading to immediate tangible consequences (such as the mass harm that resulted from the Australian government’s wrongful demand that welfare recipients pay back benefits based on the Robodebt system). While Sanchez-Graells’ primary analytical focus is the UK, where under the National AI Strategy, public buyers are expected to ‘confidently and responsibly procure AI technologies for the benefit of citizens’, the logic of the argument applies also to other jurisdictions. Continue reading "Can The Buyer Beware? State Procurement of AI Systems"
Dec 10, 2024 Joseph SlaterWork Law
Desirée LeClercq,
Labor Strife And Peace, __
U.C. Irvine L. Rev. __ (forthcoming), available at
SSRN (Jan. 12, 2024).
The first third of my Labor Law class, like most others, emphasizes the important rights of employees under section 7 of the National Labor Relations Act (NLRA). First, Section 7 is crucial in the union organizing process. Second, its protections generally apply not only to employees who are unionized or seeking to unionize, but to all employees the NLRA covers, even if they are not in or do not currently want a union. Third, Section 7’s language protecting “other concerted activities for mutual aid or protection,” is broad and vague. That means it is often unclear how section 7 applies to particular employee actions or employer rules. This, combined with the increasingly politicized National Labor Relations Board (NLRB) – the agency that interprets the NLRA – has caused wide oscillation in legal rules, especially in the 21st century. For many areas involving claims of section 7 rights, the Board dominated by President G.W. Bush’s appointees adopted a much more employer-friendly legal rule; the Obama Board then reversed that rule to make it more union-friendly; the Trump Board reinstated the Bush Board rule; and then the Biden Board returned to the Obama Board rule. While annoying and often hard to keep up with, practitioners and scholars know this pattern well.
Desirée LeClercq’s article demonstrates impressive familiarity with all the shifts in Section 7 law, but she goes beyond common complaints about this pattern by examining it in light of the purposes of the NLRA as a whole, and adding a theoretical framework based on insights from social movements. At the same time, the piece is focused on real-world union organizing and workplace conflicts that may or may not develop into organizing. She also usefully corrects those who think that the Obama/Biden Board rules on section 7 are the best the Board can do to further the purpose of the NLRA. Continue reading "Strife, Labor Peace, and Returning NLRA Section 7 Law to its Original Purpose"
Dec 9, 2024 David HortonTrusts & Estates
Adam J. Hirsch,
Beyond Privity of Blood: Intestacy and Charity, 76
UC L.J. __ (forthcoming, 2025), available at
SSRN (March 16, 2024).
Adam Hirsch’s new article, Beyond Privity of Blood: Intestacy and Clarity, argues that intestacy statutes should sometimes give a share of the decedent’s property to charity. To be honest, when I read his abstract, I found the idea far-fetched. But Professor Hirsch is one of the most-cited scholars in the field for a reason. By the time I’d finished scrolling through his draft, I’d seen the appeal of his creative thesis.
Calls for intestacy reform are common. Some authors have suggested that intestacy laws, which typically favor spouses and children, no longer reflect what most decedents want. Others have explored the idea of “personalizing” distributions based on factors such as the decedent’s gender, age, or lifestyle choices. Both proposals urge lawmakers to use empirical evidence to update the rudimentary assumptions that underlie intestacy regimes. Continue reading "Charities as Heirs"
Dec 6, 2024 Cristina TilleyTorts
As an early-career beneficiary of Jotwell, I often use my annual platform to spotlight the work of emerging or underappreciated scholars. Robert Rabin is emphatically not a member of that group. Why, then, is Stand Alone Emotional Harm: Old Wine in New Bottles the thing I like lots right now? The piece elegantly observes – and joins – an incipient movement to recenter in tort non-physical injuries that tarnish American social life. These claims have long been ridiculed by mainstream tort, so they need a prominent champion like Rabin.
Rabin’s contribution to the 2023 Clifford Symposium on Tort Law and Social Justice is compact but undeniable. In eleven short pages, he makes the case that much maligned non-physical injuries actually have a centuries-long pedigree in tort. The drunken hatcheteer in I de S. v. W de S. (P. 733 (citing I de S. v. W de S., Y.B. Lib. As. Folio 99, placitum 60 (Assizes 1348)) for example, was made to pay the tavernkeeper who escaped the blade because assault doctrine recognized a personality interest extending beyond the body. The same expansive notion of personality, he observes, has been driving judges since the nineteenth century to order compensation for those suffering “serious emotional distress” at the hands of others. (P. 734.) Over time, he suggests, these exceptions have come to look a lot like a new rule, one willing to stigmatize one-on-one behavior that inflicts non-physical social harm. Continue reading "Adding Insult to Injury"
