Sep 12, 2024 Emily BremerAdministrative Law
Jonathan Petkun & Joseph Schottenfeld,
The Judicial Administrative Power, 93
Geo. Wash. L. Rev. ___ (forthcoming), available at
SSRN.
What is administrative power and where does it fit within the federal government’s tripartite structure? These questions are difficult because the Constitution seems to contemplate only three sovereign powers—legislative, executive, and judicial—each vested in a separate branch of the federal government. As Jerry Mashaw memorably put it, “there is a hole in the Constitution where administration might have been.” Administrative law deals with the many questions raised by this deficit, and it usually examines the work of executive branch agencies and the boards and commissions that execute the law with greater independence from the White House. In short, a major premise of administrative law is that “administrative power” is at home in Article II.
In The Judicial Administrative Power, which is forthcoming in the George Washington Law Review, Jonathan Petkun and Joseph Schottenfeld find administrative power in a different place: Article III. This is not an article about judicial review of agency action—it’s about administrative institutions and activities wholly internal to the judicial branch. It’s a terrific contribution to a growing literature that recognizes the reality that bureaucracy and administrative power are often found outside of Article II’s core territory. For example, Anne Joseph O’Connell has examined Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841 (2014), between government and the private sector, while Jesse M. Cross & Abbe R. Gluck, have uncovered The Congressional Bureaucracy, 168 U. Pa. L. Rev. 1541 (2020). Continue reading "Toward a Cross-Branch Perspective on Administration"
Sep 11, 2024 Gerry W. BeyerTrusts & Estates
How does one define death, and to what extent can we confidently say someone is dead enough? The answer to this question varies among our jurisdictions. Before initiating the administration of a deceased person’s estate, the primary question is whether the individual is deceased. Despite the existence of the Uniform Determination of Death Act, there are notable differences among states regarding the indicia of death, leading to the possibility of someone being declared legally dead in one state but considered alive in another state. The challenge of determining death is further complicated when considering how conflicting simultaneous death statutes may apply to potential beneficiaries. In this thought-provoking piece, Prof. Alyssa DiRusso delves into the intricacies of determining legal death by highlighting the challenges posed by advancements in medical technology and the inconsistencies in state laws. Prof. DiRusso proposes two possible solutions to create a clear and consistent standard for determining death: the domicile rule and the decedent situs rule.
Historically, the determination of death was straightforward, with doctors relying on physical signs like pulse, breath, and fixed pupils. However, history showed enough misjudgments to create a market for air tubes in coffins…just in case. Before the twelfth century, death was considered to be the “cessation of all vital functions and signs.” Medical advances challenged this, as respirators allowed cardiorespiratory activity even after irreversible brain damage. Further, organ transplantation complicated the definition as organ donors needed to be dead but not too dead to preserve organ function. Continue reading "“He’s Dead, Jim” or Not?"
Sep 10, 2024 Rebecca CrootofTechnology Law
When a digital financial or medical advisor gives bad advice, when ChatGPT confabulates that a law professor committed sexual assault, when an autonomous weapon system takes action that looks like a war crime—who should be held liable?
Bryan Choi’s excellent AI Malpractice makes an important but often overlooked point: the answer isn’t as simple as choosing between negligence and various other potential regimes (strict liability, products liability, enterprise liability, etc.). That’s an important first step, and for a host of reasons, I share Choi’s conclusion that strict liability is the preferable near-term standard. But as AI agents and decisionmaking technologies proliferate and judges consider the applicability of negligence, there is a critical second order question: In a negligence regime, what standard should be applied for evaluating if a duty was breached? Should AI developers’ choices be evaluated according to the default reasonable person standard? Or, like doctors and lawyers, should their acts be evaluated under a professional standard of care? Under the former, a jury evaluates whether a defendant’s act was reasonable; under the latter, the profession sets the bar. Continue reading "AI Misfeasance or AI Malpractice?"
Sep 9, 2024 Emily SatterthwaiteTax Law
Goldburn Maynard & Clint Wallace,
Penalizing Precarity, 123
Mich. L. Rev. __ (forthcoming, 2024), available at
SSRN (March 28, 2024).
Those who are committed to strengthening safety nets for economically precarious workers at modest revenue cost should look no further than Goldburn Maynard and Clint Wallace’s paper on hardship-related early withdrawals by employees from their 401(k)/403(b) qualified retirement plans. Employees who need to make an early withdrawal due to hardship are, by definition, encountering difficulties and have lower ability to pay. Nonetheless, as Maynard and Wallace describe, a subset of hardship distributees may be surprised by a mismatch in the law that can heap further hardship upon them in the form of penalties.
The mismatch occurs between two sets of rules: first, the “hardship distribution” rules addressed to qualified plans under Code subsection 401(k), which allow a plan administrator to permit withdrawals before the employee reaches retirement age and, second, the rules addressed to taxpayers under Code subsection 72(t), which apply a 10 percent “early withdrawal” penalty. The regulations under 401(k) list various safe harbored-payments that constitute an allowable hardship distribution in response to “immediate and heavy financial need” that cannot be satisfied using other resources. (Pp. 3-4.) These payments include those for medical care that would be deductible under Code subsection 213(d), costs related to the purchase of a home for the employee, tuition expenses for post-secondary education, as well as payments to prevent eviction or foreclosure, for funeral expenses, and for a natural disaster or casualty loss. (Pp. 3-4, 26.) However, those same safe harbored-payments are not fully mirrored in the subsection 72(t) penalty framework, which contains a divergent list that doesn’t include eviction and foreclosure, limits qualifying medical care expenses, and allows payment for post-secondary educational expenses only in the case of individual retirement account holders, not those who have 401(k)/403(b) qualified plans. (Pp. 30-31.) As a result, some hardship distributees fall between the cracks: “[d]espite qualifying for the hardship distribution safe harbor, [they can avail themselves of] no exception to this separate penalty…” (P. 4.) Continue reading "Hardship Withdrawals from 401(k)s: A Trap for the Unwary"
Sep 6, 2024 Serena WilliamsProperty
When considering what qualifications a tenant should have to be eligible to lease a unit, landlords often consider tenant screening reports that give an account of a tenant’s income, credit history, criminal background, and past eviction history. After reading Professor N. A. Pappoe’s article, The Scarlet Letter “E”: How Tenancy Screening Policies Exacerbate Housing Inequity for Evicted Black Women, we may all want to reconsider the use of tenant screening reports that contain information on these aspects of a tenant’s background.
Pappoe argues that the use of these reports by landlords has a disproportionate impact on Black women, preventing them from obtaining rental housing, both public and private. She suggests that the Fair Housing Act should be interpreted to find that landlords using these screening reports are liable for the disparate impact the policies and practices have on Black women and she proposes legislative fixes to address the issue. Continue reading "Removing the Scarlet Letter"
Sep 5, 2024 Anita KrishnakumarLexLegislation
Margaret H. Lemos & Deborah A. Widiss,
The Solicitor General, Consistency, and Credibility, 100
Notre Dame L. Rev. __ (forthcoming, 2024), available at
SSRN (March, 25, 2024).
In The Solicitor General, Consistency, and Credibility, Professors Maggie Lemos and Deborah Widiss provide an eye-opening deep dive into an increasingly common—and oft-criticized—practice engaged in by the Solicitor General’s Office (OSG): rejecting a legal argument that was offered on behalf of the United States in prior litigation. Such flip-flops by the SG’s office have received considerable attention in recent years, as shifts in presidential administrations have produced a number of high-profile reversals that have, at times, garnered open criticism from the U.S. Supreme Court. The conventional wisdom posits that such OSG reversals are undesirable and pose a threat to the SG’s credibility with the Court. Lemos & Widiss seek to turn that wisdom on its head, arguing that there are often good reasons for the OSG to reverse course and urging courts to make a more nuanced assessment of the circumstances surrounding a reversal before deeming it problematic.
In order to better understand how and why the SG’s office engages in litigation flips, the authors compiled an original dataset of 130 cases dating from 1892 to the close of the Court’s 2022 Term that contained such reversals. Their goal was to provide both a descriptive account of litigation flips and a normative argument for why (and when) the Court’s skepticism of such flips is itself problematic. To that end, the authors offer the following taxonomy, or categories, of OSG flips: (1) flips that are due to changes in presidential administration; (2) flips that result from the fact that the government often wears “two hats”–such that it may have taken one position in litigation involving one agency, and a different position in litigation involving a different agency or that it may have been acting as an employer in one lawsuit but as a regulator in a later lawsuit; (3) flips that arise as a result of changed factual or legal developments, including on-the-ground experience with the relevant legal regime, or intervening changes in statutes, regulations, or judicial interpretations; or (4) flips that result simply from “zealous advocacy”—or efforts to obtain the best possible outcome for the client in a particular case. Continue reading "When the Solicitor General’s Office Flip-Flops"
Sep 4, 2024 Alexandra RobertsIntellectual Property Law
Dustin Marlan, Tertium Quid
Unveiled: Trade Dress and Service Design, 58
U.C. Davis L. Rev. __ (forthcoming, 2024/2025), available at
SSRN (March 11, 2024).
In an oft-quoted moment in the Supreme Court’s Wal-Mart v. Samara opinion, Justice Scalia articulated three types of trade dress: product packaging, which can be protectable from its earliest use if deemed inherently distinctive; product design, which is only ever protectable upon a showing of secondary meaning; and a third category, “some tertium quid that is akin to product packaging,” which is also capable of being inherently distinctive. As Professor Dustin Marlan sees it, Scalia coined the phrase to save face. He “needed a conceptual mechanism for distinguishing restaurant décor (previously held capable of inherent distinctiveness [in Two Pesos]) from product design (now considered incapable of such [in Wal-Mart]), without overruling the previous Two Pesos holding outright.” In so doing, Scalia conflated trade dress for services with product packaging in a way that has sowed confusion since 2000.
So what exactly is a tertium quid—Latin for “third thing”—and why should trade dress in that category be treated as capable of inherent distinctiveness? And how have courts perpetuated the vague, amorphous idea of tertium quid for more than 24 years without any real interrogation? Continue reading "Service Dress: Trademark Law’s Secret Third Thing"
Sep 3, 2024 Brian BixJurisprudence
The place of legal normativity in legal philosophy is distinctive and strange: there is a widely shared (though not universally shared) view that theories about the nature of law should “explain legal normativity,” but there is sharp disagreement regarding both what “legal normativity” entails and what it would mean to “explain” it. In Shadows or Forgeries? Explaining Legal Normativity, Alma Diamond offers a helpful overview of the current literature, along with a radically different approach to the issue.
In the first part of the article, Diamond explores the three different understandings of “legal normativity” currently prevalent in the jurisprudential literature: (1) the view that law gives its subjects (“real” or “robust”) reasons for action; (2) the observation that legal language implies that law gives subjects reasons for action; and (3) the idea that law must be the sort of thing that is capable of giving reasons for action, and/or that law, by its nature, implicitly claims to give us reasons. One can see that in all three alternative approaches, the focal point is a focus on reasons for action: whether the law gives us reasons, whether it purports to give us reasons, or what follows from its being the kind of thing that might give us reasons. After Diamond provides a detailed overview and critique of the three alternatives, she argues that all three approaches “take for granted that the appropriate explanatory primitive is the notion of a ‘robust’ reason for action.” (P. 64.) Continue reading "In Search of Legal Normativity"
Sep 2, 2024 Shubha GhoshInternational & Comparative Law
As antitrust goes through a resurgence in the United States with a revived appeal to Justice Louis Brandeis, it is worth looking across the ocean to see what can be learned from competition law and policy in the European Union. Professor Pablo Ibáñez Colomo’s The New EU Competition Law provides a deep dive with much refreshing insight into the directions competition law can and should take. Professor Ibáñez Colomo is with the London School of Economics and Ordinary Member of the UK Competition Appeal Tribunal. His book is a masterwork for scholars and students of competition law and theory. It is an understatement to say I like it lots, but I certainly do and much more.
What makes EU Competition Law new is the implementation of Regulation 1/2003 which gives the European Commission, the executive arm of the Union, authority to coordinate with national competition authorities to share documents and information, paper and digital, to pursue claims of anticompetitive activities within the European market. This new development has facilitated several competition law decisions from the European Court of Justice (ECJ), the judicial arm of the Union. One important authority granted under Reg 1/2003 is the power to impose fines on companies found to be in violation of competition law. The new prong supplements traditional competition law established under sections 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Section 101 outlaws agreements and anticompetitive practices (analogous to Section One of the Sherman Act). Section 102 outlaws abusive behavior by companies with a dominant position (analogous to Section Two of the Sherman Act). Continue reading "Competing Competition Laws: What the United States Can Learn From the European Union"
Aug 19, 2024 A. Michael FroomkinJotwell
Jotwell is taking a short summer break. We’ll be back on Monday, September 2. However, even while we’re on break, we’ll be accepting submissions, editing them, and updating various technical parts of the site.
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