Mar 4, 2020 David HoffmanContracts
Gregory Klass, Boilerplate and Party Intent, 82 Law & Contemp. Probs. no. 4, 2019, at 105.
In Boilerplate and Party Intent, just out in Law and Contemporary Problems, Greg Klass unearths the following lovely piece of boilerplate from an insurance contract:
“Touching the Adventures and Perils which we the Assurers are contented to bear and do take upon us in this Voyage, they are, of the Seas, Men-of-War, Fire, Enemies, Pirates, Roverts, Thieves, Jettisons, Letters of Mart and Counter-mart, Suprisals, Takings at Sea, Arrests, Restraints and Detainments of all Kings, Princes, and People…”
Roverts! Counter-marts! Oh my. As Klass observes, this sort of clause is an example of non-negotiable boilerplate, which propagates in part because no one would dream of altering such hoary text. But it is also an exemplar of a type of contractual clause that is interpreted without regard to the parties’ intent, even if what particular signatories wanted “Suprisals” to mean could be ascertained. Continue reading "Pirates, Roverts, Thieves and Boilerplate"
Mar 3, 2020 Benjamin Plener CoverConstitutional Law
Carolyn Shapiro,
Democracy, Federalism, and the Guarantee Clause, 62
Ariz. L. Rev. (forthcoming, 2020), available at
SSRN.
How much power does Congress have to regulate state democracy? More than it may realize, suggests Professor Carolyn Shapiro, in her article, Democracy, Federalism, and the Guarantee Clause. Shapiro locates this untapped power in the Guarantee Clause, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” A significant body of scholarship has considered whether this clause empowers the federal judiciary to review undemocratic state practices (P. 2), a question the Supreme Court has repeatedly answered in the negative. But Shapiro flips the inquiry, focusing not on what the courts cannot do, but on what Congress can do. She concludes that Congress can do a great deal, arguing that the Guarantee Clause gives Congress the authority—and the duty—to intervene when necessary to ensure the democratic integrity of states.
Deploying a series of textual, functional, and historical arguments, Shapiro reframes the Guarantee Clause as a structural principle with dynamic substantive content. Modern democracy scholars might put it this way: antidemocratic practices in one state may produce negative “spillover” effects in another, causing an “antidemocratic spiral [that] is contagious.” (P. 5.) The Framers did not think in these precise terms, but they recognized the need to protect every state by ensuring that each state had a similar form of republican government. Thus, Article IV Section 4 protects “each” state from “Invasion” and “domestic violence,” but guarantees to “every” state a “Republican Form of Government.” (Pp. 11-12.) Continue reading "Congressional Power to Guarantee State Democracy"
Mar 2, 2020 Sam F. HalabiInternational & Comparative Law
Imagine a famous foreign jurist—say Richard Goldstone or Claire L’Heureux-Dubé—appointed to the U.S. Supreme Court, instead of (U.S. citizen) Samuel Alito, when popular criticism of citation of foreign law was at a fever pitch in the U.S. The outcry would have been swift and incendiary. Indeed, Ruth Bader Ginsburg and Sandra Day O’Connor received death threats for engaging with foreign law as they did. Yet for at least 21 jurisdictions (nearly all of them member states of the United Nations), foreign judges sit alongside citizen judges, helping to ensure the vibrancy of (sometimes recently established) democratic institutions, building confidence in the rule of law, and playing specific roles in ensuring judicial impartiality.
In Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, Rosalind Dixon and Vicki Jackson analyze the historical and functional reasons that these arrangements have arisen. With a focus on the democratic legitimacy of the practice, Dixon and Jackson concentrate on three jurisdictions—Hong Kong, Fiji, and Bosnia-Herzegovina—as they analyze the advantages, disadvantages, and factors that lead to relative success or failure of hybrid court efforts. Dixon and Jackson are attentive to the relevance of their subject, not only for the potential expansion of hybridization, but also for the legitimacy of comparative constitutional engagement generally (the article builds on their previous work on interpretive outsiders), even when all judges are citizens of a country’s constitutional court. Continue reading "Foreign Judges on Constitutional Courts?"
Feb 28, 2020 Sergio ParejaTrusts & Estates
All areas of the law have certain foundational principles or beliefs that are widely shared. These underlying assumptions often go unchallenged. In the trusts and estates field, these principles include: (1) giving a certain amount of ongoing control to the transferor, or in the case of a decedent, to the “dead hand,” (2) respect for formality, (3) the importance of the traditional, legally-recognized family, and (4) the “wealth” narrative that focuses on the transmission of conventional forms of wealth.
In her thought-provoking article, Professor Naomi Cahn challenges these underlying principles. She, correctly, I believe, identifies the wealth narrative as the “strand…that structures the rest of the field.” For example, she notes that dead-hand control is only important when a decedent dies with wealth to be transferred, and she analyzes how wealth helps transfer privilege and maintain the status quo. Professor Cahn also looks at who has wealth and recognizes that the sociodemographic diversity of who has wealth impacts this area of law. She seeks to get her readers to challenge the foundational principles of the field by considering new perspectives from race, gender, class, and sexual orientation. Continue reading "Deconstructing Foundational Principles of Trusts and Estates Law"
Feb 27, 2020 Tal ZarskyTechnology Law
When considering online contracts, three assumptions often come to mind. First, terms of service and other online agreements are purposefully written to be impossible to read. Second, lawyers at large law firms create these long documents by copying them verbatim from one client to another with minimal tweaking. But third, none of this really matters, as no one reads these contracts anyway.
David Hoffman’s recent paper Relational Contracts of Adhesion closely examines each of these assumptions. In doing so, Professor Hoffman provides at least two major contributions to the growing literature and research on online standard form contracts. First, he proves that these common assumptions are, in some cases, wrong. Second, he explains why these surprising outcomes are unfolding. Continue reading "The Cute Contracts Conundrum"
Feb 26, 2020 Eric BiberLexEnvironmental Law
Robert C Ellickson,
Zoning and the Cost of Housing: Evidence from Silicon Valley, Greater New Haven, and Greater Austin, available at
SSRN.
An article about the cost of housing may seem a surprising choice as one of the year’s best environmental law articles. But there are good reasons for it: Housing costs in major coastal metro areas in the United States are soaring. Strong evidence suggests that the stringent of land-use regulations is a major contributor to those price increases Some commentators also consider state-level environmental review laws, such as the California Environmental Quality Act, among those stringent land-use regulations – thus implicating environmental law as a cause of the housing crisis. At the same time, transportation is one of the primary contributors to greenhouse gas emissions in the United States, and is the largest single sector now in California. Addressing emissions from transportation requires a reduction in vehicle miles travelled by Americans, which in turn requires densification of the built landscape to facilitate walking, biking and public transit use. But densification may be difficult or impossible in the face of soaring metro housing costs and stringent land-use regulations that obstruct redevelopment.
Ellickson’s piece provides a timely contribution to both of these debates, because it provides something that has been sorely lacking in the debates over how land-use law shapes housing policy and the built form: Data on how the land-use regulatory system actually operates in practice. Up to now, most of the literature (whether economic, planning, or law) that has tackled how land-use regulation operates on the ground has been either speculative, or it has relied on surveys of developers and planners. This is in part because the local nature of land-use regulation in the United States, combined with its sometimes extreme complexity in local jurisdictions, makes data collection expensive and difficult. Surveys attempt to elide this issue by asking for perceptions or knowledge of land-use regulation by actors (planners and developers) who should know much about the topic, but they may not always accurately reflect the realities of land-use regulation on the ground. But if we want to solve the problems of housing cost and greenhouse gas emissions from transportation, we need to have good data on the true nature of land-use regulation is in the United States. Continue reading "The High Cost of Exclusionary Zoning"
Feb 25, 2020 Richard MurphyAdministrative Law
- Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019), available at MLaw Repository;
- Julian Davis Mortenson, The Executive Power Clause, 167 U. Pa. L. Rev. (forthcoming), available at SSRN.
Maybe you have been wondering, for one reason or another, just what the “executive power” entails. If so, you are in luck, for Professor Julian Davis Mortenson has an answer for you in two magisterial, deeply researched articles that also happen to be compelling reads: Article II Vests Executive Power, Not the Royal Prerogative, and its sequel, The Executive Power Clause. It turns out that “The executive power meant the power to execute. Period.” (Executive Power, P. 5.)
It will come as no news to readers of this website that, about a quarter of a millennium ago, Article II of the Constitution vested the “executive power” of the United States in the president. And ever since that time, Americans have been arguing about just what this “executive power” entails. In truth, it seems this debate is likely to last as long as the Republic does—which suggests that the debate sometimes says as much about the debaters as their subject. Continue reading "It’s “Executive Power,” Not “Executivish Power”"
Feb 24, 2020 Jasminka KalajdzicCourts Law
For decades, most opposition to class actions in the United States has come from the political right. Corporations on the receiving end of class action lawsuits have hired lobbyists and lawyers to restrict the availability of class actions, through legislation such as the Class Actions Fairness Act and by successfully arguing for narrow judicial interpretations of Federal Rule of Civil Procedure 23. If the pendulum has swung toward ‘killing’ the modern class action in the United States, it is conservatives who have pushed it.
For this reason, Brian Fitzpatrick’s The Conservative Case for Class Actions offers a unique contribution to political debates over class actions. A self-described card-carrying member of the Federalist Society and former clerk to Justice Antonin Scalia, Fitzpatrick argues that “class action lawsuits are not only the most effective way to hold corporations accountable; they are also the most conservative way to hold them accountable.” This contention rests on two basic premises: what is “good for conservative principles may be bad for big corporations” and “the private sector is better at doing most everything than the government is.” He persuasively supports the first premise as a matter of principle and history: Republicans acknowledge that some rules are necessary (like laws against fraud or anti-competitive behaviour), and conservative principles have not always aligned perfectly with the interests of big business. He defends the second premise by exploring the options for enforcement and empirically showing that the conservative preference for private enforcement is justified: the private sector is better than the government at detecting misconduct and enforcing the law. Continue reading "A Return to First Principles: Class Actions & Conservatism"
Feb 21, 2020 Katherine KleinEquality
When you picture the rural, what does it look like to you? Perhaps you think of cowboys and the Wild West or Midwestern farmers or coal miners in Appalachia. When you think of the characters that inhabit your mental image, aren’t they White? This is the widespread image that Maybell Romero challenges in her recent law review article, arguing that such a homogenously White perception of rural spaces has significant institutional impacts for people of color living in these areas. Romero uses her article to advocate for mandatory cultural competency trainings and data collection in rural prosecutorial offices. Proper collection and analysis of this data will help shed light on the extent of racial disparities in the rural criminal justice system. Romero also challenges us to view rural areas with more nuance; they are not the racially monolithic places that inhabit most Americans’ perceptions. Expanding our racial view of the rural will help us adopt a “thicker” definition of justice, one that truly serves all those living in rural communities.
Romero notes that in pop culture, rural America is often conceptualized in one of two dichotomous ways. The rural is either an Andy Griffith-esque heartland of traditional American values or it is a lawless wasteland characterized by drug-addiction and violence. The thing both of these conceptualizations share is that the inhabitants of both are exclusively White. The focus of Romero’s article is rural Maine, a place that many Americans would expect to be almost entirely homogenous. When considering challenges faced by rural Mainers, people of color are very often overlooked or forgotten completely. Continue reading "Whitewashing the Rural: How Cultural Views Influence Access to the Justice System for Communities of Color"
Feb 20, 2020 Veronica Root MartinezLegal Profession
- Atinuke Adediran, The Relational Costs of Free Legal Services, 55 Harv. C.R.-C.L. Rev. __ (forthcoming, 2020), available at SSRN.
- Atinuke Adediran, Solving the Pro Bono Mismatch, __ U. Colo. L. Rev. __ (forthcoming, 2020), available at SSRN.
One of the things that struck me most early on in law school was the notion that some paths were considered more elite and desirable than others. I simply didn’t understand why my classmates were obsessed with particular opportunities. That was, until I attended a diversity reception at a large law firm during my first year, where someone mentioned the starting salary for lawyers (at the time $125,000). Suddenly, I understood why law students seemed so desperate to secure jobs at large law firms after graduation.
As it turns out, those running elite, large law firms understand that some law students experience a conflict when deciding on what path to take after graduation: pursue the money and perceived prestige associated with the work done by large law firms or fulfill a desire to help people without easy access to legal services. It is important, at least in part, for there to be strong pro bono initiatives at elite large law firms because they enable talented attorneys to pursue both goals in tandem. Atinuke Adediran’s recent work, however, challenges the efficacy of that narrative. Continue reading "Legal Elites Serving the Poor (or Not?)"
