Nov 21, 2024 Jessica Lind MantelHealth Law
Trust between patients and providers, and in the healthcare system at large, is essential for effective care delivery and positive health outcomes. Yet today’s complex healthcare landscape poses significant challenges to cultivating and maintaining this trust. In her thought-provoking essay Building Trust in Health Care Through Regulation and Payment Systems, Professor Katrice Bridges Copeland offers an insightful examination of the government’s crucial role in building and maintaining trust through its dual roles of regulator-enforcer and participant-payer.
Copeland explores the intricate interplay between trust and regulation, enforcement, and payment policies, demonstrating how government actions profoundly shape trust in healthcare. For instance, the ongoing shift towards value-based payment (VBP) models promises to revolutionize healthcare delivery and could be a tool to increase trust as it moves providers away from being rewarded for quantity over quality. But it also introduces new complexities in maintaining trust, particularly as it might incentivize providers to do things like improperly manipulate quality data to maximize compensation. Copeland makes a persuasive case for modernizing the healthcare fraud and abuse laws to address the unique risks posed by VBP and ensure patient trust in the new healthcare landscape. Continue reading "Building Trust: Reforming Fraud Laws for a Changing Healthcare System"
Nov 20, 2024 Aníbal Rosario-LebrónFamily Law
Nila Bala,
Parent-Child Privilege as Resistance, ___
B.C. L. Rev. ___ (forthcoming), available at
SSRN (Feb. 2, 2024).
The Rules of Evidence have been increasingly criticized for serving as a tool to maintain patriarchy and White supremacy. Scholars have shown how rules such as relevance, excited utterance, character for untruthfulness, rape shield, or credibility discounting promote gender oppression. Similarly, they have uncovered how unregulated evidence, character evidence, and prior convictions have contributed to the carceral state and racial and economic inequality. Recently, however, two articles have come out advocating that instead of abolishing or reforming rules, we adopt new ones, specifically a new privilege, in the realms of pregnancy termination (Aziz Z. Huq & Rebecca Wexler) and children’s rights (Nila Bala).
Huq and Wexler advocate for a privilege to shield abortion-relevant data from “warrants, subpoenas, court orders, and judicial proceedings” to counteract the elimination of a federal abortion right after Dobbs. Bala goes even further, arguing for creating a testimonial and confidential child-parent privilege including digital and written communications not only to protect minors and parents against gender-affirming care and abortion criminal prosecutions but also in any other criminal, juvenile, or civil context. In addition to its broader application, Bala’s proposal struck me the most because her justification for creating the rule rests on a privileging resistance framework. In The History of Sexuality, Foucault observed that “[w]here there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power.” Bala’s forthcoming article greatly exemplifies this axiom. Continue reading "Privileging Resistance"
Nov 19, 2024 Jessica M. EaglinCriminal Law
It is easy to privilege certain kinds of “doing” in law. From constitutional law and the courts to statutory mandates and the legislature, these are highly visible examples of law in action. As such, their effect and import are deeply studied, and criminal law is no different. Yet there are so many ways to “do” and interact with criminal law, a key takeaway from Jocelyn Simonson’s book, Radical Acts of Justice: How Ordinary People Are Dismantling Mass Incarceration. Because her book encourages us all to expand our understanding of “doing” law, this book is a must read for scholars of criminal law and beyond.
Simonson’s book critically centers collective action by “everyday” people in and around the criminal legal system. She argues that certain categories of collective action cumulate as examples where groups of people not ordinarily considered to be doing criminal law are “resisting mass incarceration in their neighborhoods, counties, and states.” To understand these collective actions as radical forms of contestation, Simonson describes three key concepts—justice, safety, and the people—as the ideological foundation for mass incarceration in the United States. She defines traditional notions of justice as “finding and punishing individuals who have committed wrongs or engaged in disorderly behavior.” Safety is often construed the removal of those individuals from society by labeling them as criminal. Finally, the people tends to connote a good or neutral public that excludes both those accused of crimes and those resistant to mass incarceration. Together, these concepts constitute a series of ideas and assumptions that run beneath the operation of the criminal process and legitimize mass incarceration as status quo. Though these concepts are not always stated outright, they represent a “worldview” that, according to Simonson, “serves to uphold and disguise a system of oppression.” Continue reading "“Doing” Criminal Law Differently"
Nov 18, 2024 Shawn BayernContracts
Yonathan A. Arbel,
The Readability of Contracts: Big Data Analysis, 21
J. Empirical Legal Stud. __ (forthcoming, 2024), available at
SSRN (Jan. 01, 2023).
Probably all law professors, even textualists, have experienced frustrations with overly rigid applications of supposed rules about language. For example, they’ve encountered editors who require that all contractions be spelled out or replace every instance of the word “like” with “such as” regardless of whether the substitution makes sense in context. Editing like that serves formalistic assumptions about the readability and professionalism of text and usually rests on various “myths” or outdated conceptions about language. Similarly, many professors, even formalists, have encountered and been frustrated by institutional “metrics” that reduce rich, substantive endeavors (like education) to rigid and formalistic abstractions (“learning outcomes” or test scores).
In a critique at least broadly sensitive to the same kinds of frustrations, Yonathan Arbel’s recent draft article, The Readability of Contracts: Big Data Analysis, studies the Plain Language Movement, which has influenced language in such documents as consumer contracts and medical disclosures. Professor Arbel’s legal focus in the draft is on consumer contracts, and his point is not, of course, that language in consumer contracts should be unreadable. Instead, it is a sharp critique—backed both with analytical insight and with significant data—against formalized metrics of notions like readability. Continue reading "Consumer Contracts Have Many Problems, but “Readability” May Not Be One"
Nov 15, 2024 Tom C.W. LinCorporate Law
Many businesses today are subjected to a myriad of regulations. In order to ensure compliance with the large and dynamic bodies of federal, state, and local rules, many businesses create internal policies and systems to facilitate adherence to the law. However, such policies and systems exist in a dynamic marketplace filled with resource constraints and other business considerations. So, how do corporate managers construct internal compliance policies for their firms? What rules and regulations do they prioritize? How do they design internal systems to reflect the realities of law and enforcement?
In a recent article, Strategic Compliance, Professor Geeyoung Min offers a sharp and insightful perspective on these questions and more. Through an astute and deep analysis of a hand-collected dataset of corporate policies on insider trading and related party transactions from companies making up the Standard and Poor’s (S&P) 500 index, Professor Min reveals the policy customizations that occur at the firm level. Specifically, she reveals how firms customize internal policies on insider trading and related party transaction, oscillating between stringency and leniency. These revelations illuminate, inform, and interrupt conventional understandings about corporate compliance and internal policies. Continue reading "Compliance and Strategic Corporate Policies"
Nov 14, 2024 Deepa Das AcevedoWork Law
Yiran Zhang,
Home as Non-Workplace, __
B.U. L. Rev. __ (forthcoming), available at
SSRN (Mar. 11, 2024).
Everyone reading this jot likely has a story about how the home/office divide collapsed for them in 2020. (I have several.) But even among work law scholars, there aren’t too many of us who do more than periodically gripe about the divide’s demise. (I don’t.)
To be sure, we all understand that domestic labor is undervalued, underpaid, and insufficiently protected. But what about domestic space? Specifically, what about domestic space that is no longer, or no longer only, domestic? Yiran Zhang’s forthcoming article, Home as Non-Workplace, gives us a timely and comprehensive way to think about the home/office divide and what it does, could, and should mean for work regulation. Continue reading "This Place is My Workplace… This Place is Your Workplace…"
Nov 13, 2024 Kent D. SchenkelTrusts & Estates
Brian Galle, David Gamage & Darien Shanske,
Money Moves: Taxing the Wealthy at the State Level, 112
Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (January 14, 2024).
Polls show that a majority of Americans believe that inequality is increasing, and that taxes should be raised on the very wealthy. But income tax rates on high earners remain historically low, and estate planning techniques that minimize the reach of federal transfer taxes proliferate. What about state-level taxation? Conventional wisdom holds that progressive state tax regimes backfire by triggering wealth flight to low-tax jurisdictions, leading many states to stick with regressive sales and property taxes. But the consequences of progressive state tax policy are misunderstood, and states have many options, write Brian Galle, David Gamage and Darien Shanske, in their comprehensive, informative and practical article, Money Moves: Taxing the Wealthy at the State Level.
The tax theory of “fiscal federalism” holds that only the federal government should impose progressive taxes to fund government benefits. Fiscal federalists argue that if individual states undertook to create progressive tax regimes, the wealthy would just relocate to other states, creating “horizontal externalities.” Therefore, the federal government has put in place its more progressive income tax, which enables it to return tax revenues to the states in the form of grants or other types of revenue sharing. Continue reading "Practical Considerations for State Taxation of Wealth"
Nov 12, 2024 Sandy SteelTorts
In his excellent book, Egalitarian Digital Privacy: Image-Based Abuse and Beyond, Tsachi Keren-Paz defends a number of interesting and provocative claims about the liability of persons in relation to the distribution and viewing of intimate images whose dissemination and in some cases, production, is non-consensual, such as revenge porn. As with Keren-Paz’s other work, the book is characterised by an engagement with foundational issues in tort law – causation, fault v strict liability, positive duties – and a detailed tracing through of the implications of theoretical positions on those issues for an important social problem.
The book’s primary concern is the liability of internet intermediaries – mainly, hosts and search engines – and viewers in relation to wrongful image-based content. I focus here (to the exclusion of the book’s rich discussion of several other issues) on the book’s treatment of three foundational matters raised by such cases: (1) the extent to which intermediaries ought to have positive duties to remove content that amounts to a violation of the victim’s privacy rights, (2) the causal problems that arise in relation to claims for image-based harm that is massively overdetermined, (3) the standard of liability for claims against viewers and others. Continue reading "Rethinking Digital Privacy in Tort"
Nov 11, 2024 Rebecca TushnetTechnology Law
Sometimes, it’s the small details that hobble even the most easily explained policies. When California decided to expunge felony records for marijuana offenses, relief for former felons was hampered by a lack of comprehensive recordkeeping and reliance on proactive individual action (the expungement wasn’t automatic; you had to ask for it). These and similar stumbling blocks can be weaponized by opponents, as occurred with the restoration of voting rights to felons in Florida. It’s a technological spin on the well-known legislator’s warning, “If I let you write the substance and you let me write the procedure, I’ll screw you every time.”
In Recoding America, Jennifer Pahlka makes the argument that there doesn’t even have to be a bad guy on the procedure side for this to happen. This is a book by a technocrat with a persuasive argument for a measure of technocracy: America’s ways of lawmaking could be greatly improved by borrowing from the project management concept of agile development, which allows people lower in the hierarchy to make consequential decisions rather than being burdened by having all the rules have to be specified in advance. The latter, “waterfall” development, can lead to deadly (sometimes literally) complexity and policy failure. When policy is too rococo and reticulated, such as having nine different definitions of a “group” of doctors for Medicare purposes, throwing money at the problem rarely helps. Neither does outsourcing and oversight, both of which Pahlka believes can help when properly deployed but often end up generating more layers of bureaucracy. Continue reading "Fixing the US Code"
Nov 8, 2024 Charlotte CraneTax Law
Alex Zhang,
Fiscal Citizenship and Taxpayer Privacy, __
Colum. L. Rev. __ (forthcoming 2025), available at
SSRN (April 2, 2024).
In Fiscal Citizenship and Taxpayer Privacy, forthcoming in the Columbia Law Review, Alex Zhang explores ways of thinking about the effects of the disclosure of individual income tax returns. Disclosure of information about individual tax liabilities is one of those topics that won’t ever go away. Even if no imaginable contemporary Congress would reinstate a requirement that information about individual tax liabilities be publicly available, it is well worth thinking about the circumstances in which disclosure would be justified. After all, most state property tax systems include disclosure not just of the values subject to tax, but of taxpayer compliance. And, as Zhang describes, such disclosure was on more than one occasion a part of the administration of the federal income tax. Especially in light of this history, it is worth exploring whether an income tax—especially the individual income tax—should be so different.
The consensus answer seems to be that the intrusion on individual taxpayer privacy cannot be justified by the possibility of enhanced compliance, especially when research indicates that the impact of disclosure on compliance is ambiguous. Zhang’s critique of this response rests on the idea that increased knowledge of the way taxpayers—especially wealthy taxpayers—interact with the income tax system is the key to a more democratic and egalitarian tax system and therefore a more democratic and egalitarian fiscal polity. Continue reading "Disclosing Tax Data: Maybe the Rich Are Different"
