Apr 16, 2024 Andrea FreemanEquality
I am not tragically colored. There is no great sorrow dammed up in my soul, nor lurking behind my eyes. I do not mind at all. I do not belong to the sobbing school of Negrohood who hold that nature somehow has given them a lowdown dirty deal and whose feelings are all hurt about it. Even in the helter-skelter skirmish that is my life, I have seen that the world is to the strong regardless of a little pigmentation more or less. No, I do not weep at the world—I am too busy sharpening my oyster knife.
― Zora Neale Hurston, Dust Tracks on a Road (1942).
Colleen Campbell’s important and fascinating new article, Intersectionality Matters in Food and Drug Law, explores the complexities of skin lightening products and how to mitigate the damage they cause. She lays out two major problems with these products. They contain harmful ingredients, including mercury, which disproportionately poison dark-skinned women, their primary target. They also exploit and reinforce colorism, a system of bias that grants more social and economic capital to light-skinned over dark-skinned people.
The paper goes to the heart of the political economy of food and drug law. As Campbell explains, “To critique the commercialization of race and beauty is to confront racial capitalism head on in the areas where it hits the deepest: intimacy, self-expression, sexuality, performance, acceptance, and love.” Continue reading "Regulating Skin Lightening Products: A Delicate Balance"
Apr 15, 2024 Carla SpivackTrusts & Estates
In Remedying Injustices for Black Land Loss: Taking the Next Step to Protect Heirs’ Property, Professor Phyllis Taite offers an original and effective solution to the problem of fractionation of Black-owned land, a problem that has caused drastic Black land loss and that many scholars and legislators have tried to solve. Taite proposes a novel use of trusts to prevent ownership of heirs’ property from fractionating, unlike other remedies that retroactively seek to unwind the harmful consequences of fractionation after the damage has been done. It’s an original and promising proposal.
Heirs’ property is land that has passed through multiple generations without going through probate: fractionation occurs because each generation of heirs acquires the land as tenants in common, the default tenancy for property. As more and more owners divide the land into smaller and smaller shares at each generation, ownership of the property fractionates. Taite points out how this process leads to multiple problems, including unclear title, disagreements about disposition, and land loss through forced partition sales. Continue reading "Trusts as a Solution to Black Land Loss"
Apr 12, 2024 Brett McDonnellCorporate Law
Those who, like me, spend much of their time focused on corporate law know that over the past decade or so there has been a serious re-examination of the traditional American understanding that corporate directors and officers should focus exclusively on advancing the interests of their shareholders. Many in the field will also be aware of a related debate over the conventional consensus that securities regulation should focus on protecting financial investors. Fewer corporate law scholars, though, may have paid as much attention to questioning within antitrust law of the focus on protecting consumers or within bankruptcy law on protecting creditors.
And fewer still will have pondered the connections between the debates going on within these separate though related fields. Aneil Kovvali explores those connections in his recent article, Stakeholderism Silo Busting. In corporate law, securities regulation, antitrust, and bankruptcy law, a decades-old consensus maintains that the law should focus exclusively on protecting one specific group. But within each field, rebels are now calling upon decision makers to consider the interests of various stakeholders. In his article, Kovvali describes shared arguments that are made by traditionalists and by those questioning traditions within each of the four fields. He further argues that considering developments in the fields together could yield new insights and practical suggestions. Continue reading "Stakeholderism Crosses Legal Lines"
Apr 11, 2024 Rebecca RoipheLegal Profession
Nora Freeman Engstrom & James Stone,
Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, 134
Yale L. J. __ (forthcoming 2024), availible at
SSRN (March 14, 2024).
Imagine a world in which you call AAA for roadside assistance after a fender bender and you can ask to be transferred to a lawyer to help you with your insurance claim. In their article, Auto Clubs and the Lost Origins of the Access to Justice Crisis, Nora Freeman Engstrom and James Stone bring back a past when this was reality and offer a vision for a future in which not only drivers but also others in need of legal services can find a fast, effective, and inexpensive solution to their problems.
Engstrom and Stone trace the origin of the contemporary unauthorized practice of law rules to disputes about auto clubs, staffed with lawyers, who helped members with an array of legal problems related to cars and roads. They draw on archival material to bring the reader back to a very different legal landscape. It is not always easy to use history in legal scholarship. If you aren’t engaged in an originalist interpretation of the Constitution or a statute, it is often not entirely clear how history can be relevant to a contemporary legal problem. The story that Engstrom and Stone tell, however, is so clearly useful. It helps expose the strict unauthorized practice of law rules as a contingent product of a self-interested bar interfering with the market, not a benevolent effort to protect the public from inept lawyering. By unearthing this dispute, Engstrom and Stone not only expose the selfish motivations behind the rules but also help us imagine a different future. By painting such a vivid portrait of a lost era of law practice, the authors make our contemporary approach seem less natural and inevitable, freeing the reader to follow a more creative path to the future of the profession. Continue reading "Cars, Bars, and the Delivery of Legal Services"
Apr 10, 2024 David HoffmanContracts
Robert E. Scott, Stephen J. Choi & Mitu Gulati,
Commercial Boilerplate: A Review and Research Agenda, __
Ann. Rev. L. & Soc. Sci. __ (forthcoming 2024), available at
SSRN (Jan. 18, 2024).
Contract law as an academic discipline is as uneasily stuck together as the 1L course itself. The two major strands of self-identifying contract scholars–loosely, those that unpack “negotiated” business deals and those that lament “adhesion” consumer contracts–rarely talk to or learn from one another. And the problem replicates in the scholarly fields that have sloughed off from the core over time, from antitrust to corporate law, and from private employment to consumer privacy. Cross-pollination between scholars working on similar problems of consent, but on different types of agreements, is lamentably rare.
There are many causes for the fragmentation, and resultant decline, of a discipline that once produced great public goods like the UCC and the Restatement (2nd) of Contracts. One is the sheer volume of scholarship that each individual subdiscipline creates, and thus the barriers to entry for those looking to engage with the state of the art. We here at JOTWELL seek to offer you a curated set of papers to read, but only a dozen or so out of hundreds, across contract types, won’t make you a truly informed scholar.
It’s therefore with real enthusiasm that I can recommend to you a top-notch literature review, on an incredibly important topic: what do we know about commercial boilerplate. Commercial Boilerplate: A Review and Research Agenda, written for the estimable Annual Review of Law and Social Science by authors who’ve produced much of the ground-breaking work on that topic in the last generation, is everything you could hope for in the genre. It is lucid, insightful, generative and short. You should read it. Continue reading "Everything You Wanted to Know about (Commercial) Boilerplate"
Apr 9, 2024 Michael Z. GreenWork Law
In his recent essay, Professor David Yamada (Suffolk) provides an enlightening introduction to the law of workplace safety with respect to the Occupational Safety and Health Act of 1970 (OSH Act) and its enforcement by the Occupational Safety and Health Administration (OSHA). Because the limits of the OSH Act and OSHA’s role in workplace safety became highlighted to all essential workers in American society during the recent COVID-19 pandemic, the importance of continuing to explore better safety protections for employees remains a pressing public concern. Yamada’s essay covers the important role that the OSH Act and OSHA play in workplace safety in a succinct manner while he also points to failures to provide more remedies for workers’ mental health after being subjected to toxic workplaces, and particularly due to workplace bullying, as a fallout from COVID.
Yamada’s stated goal is “to contribute to a needed conversation about policy options for extending the regulatory reach of the OSH Act to cover severe psychological harms at work and to anticipate expanded enforcement responsibilities for OSHA and its realm.” (P. 395.) Unfortunately, very few workplace law professors analyze the OSH Act or OSHA in their scholarly endeavors. Before now, Jotwell’s Worklaw Section has covered only one publication addressing an OSH Act or OSHA issue: back in 2017. This lack of scholarly attention to OSHA is surprising in light of the agency’s existence for more than fifty years and its key presence as exemplified when a national pandemic arose in 2020 affecting the health and safety of so many workers. Continue reading "Why Employees Need the OSH Act and OSHA’S Protection from Psychological Harm Due to Unsafe Workplaces"
Apr 8, 2024 Michael E HerzAdministrative Law
Administrative law scholarship comes in many shapes and sizes. One distinctive type is the law review article that began life as a consultant’s report for the Administrative Conference of the United States (ACUS) and then was published in revised (read: more compulsively footnoted and obsessively bluebooked) form in a law review. The ACUS lineage is always visible in the final product: these articles are grounded on and often provide an overview of current practice, they are even-handed, and they contain real-world proposals for reform. On the other hand, they tend not to be wildly abstract, coin new terms (“I call this approach neo-tripartite hyper-realism”), or end up in the Yale Law Journal (with the occasional impressive exception or two as to the last).
Michael Asimow’s recent article on greenlighting—”the process whereby the heads of a combined-function federal regulatory agency determine whether to accept the staff’s decision to charge or not charge a target with a violation of law” (P. 227)—began life as an ACUS report, and it shows. It describes the practices of five different agencies, reviews the value and the risks of looking to agency heads to approve enforcement actions, and assesses a suite of possible structural arrangements that might preserve the former and minimize the latter. Continue reading "It Ain’t that Broke–Agency Heads’ Approval of Enforcement Actions"
Apr 5, 2024 Anthony SebokTorts
Kenneth S. Abraham & Catherine M. Sharkey,
The Glaring Gap in Tort Theory, 133
Yale L.J. __ (forthcoming, 2024), available at
SSRN (Sept. 27, 2023).
Kenneth S. Abraham and Catherine M. Sharkey’s The Glaring Gap in Tort Theory has a dramatic title. The article, which is about the unheralded and unappreciated role that liability insurance plays in tort, promises to make good on two claims—first, that the major (or a major) “missing piece” in modern tort scholarship is liability insurance, and second, once this missing piece is identified, it is impossible to ever see tort law the same way again.
It is easy to quibble with both these claims. As to the first, it is worth observing that tort theory has been taken to task by critics for other failures, which also probably are, in the eyes of those critics, “glaring” and demand urgent correction. For example, mainstream tort theory, it has been observed, like much of academic legal analysis of the common law, ignores gender and race. Others have criticized tort law for its failure to grapple with its commitment to liberal individualism and, by extension, its complicity in the lack of equity in modern society. One might even take the view that tort’s failure to provide a framework through which climate change may be addressed is a “glaring gap” that should be addressed before its failure to identify and discuss liability insurance. Continue reading "We Don’t Talk About Insurance (no, no, no!)"
Apr 4, 2024 Robin J. EffronCourts Law
Pamela K. Bookman, Default Procedures, ___ U. Pa. L. Rev. ___ (forthcoming, 2025).
Theories of procedural justice have long contained explicit and implicit assumptions about the status of parties in the American civil justice system. Procedural rules and proposed reforms reflect beliefs that some parties are well-resourced and powerful and other parties are under-resourced and otherwise vulnerable. For several decades, commentators focused primarily on the needs of individual plaintiffs who faced uphill battles of time, money, and procedural barriers in accessing courthouse justice to vindicate their rights. They portrayed defendants as jockeying for procedural advantages of avoidance—everything from jurisdictional defenses to rules of pleading and discovery to broad powers of summary judgment existed to shield defendants from a merits-based confrontation before a jury.
In the past several years, however, scholars have begun to focus on vulnerable defendants, a class of litigants whose relative weaknesses were rendered nearly invisible by focusing on how parties fare in federal court. Pamela Bookman’s Default Procedures examines state-court rules for default judgments, adding to the growing literature on state-court procedures that have enabled a small group of relatively powerful plaintiffs to run roughshod over the debtors and tenants comprising a significant portion of the defendants in state court dockets. Continue reading "The Pendulum Swings of Access to Justice"
Apr 3, 2024 Ari WaldmanTechnology Law
A few years ago, the CBS show 60 Minutes ran a segment about algorithmic bias. Among other things, the segment told the story of a Black man in Detroit who had been misidentified by a facial recognition algorithm as the thief who had been caught on video stealing $4,000 worth of watches. Anderson Cooper interviewed the victim, his wife, the Detroit police chief, a lawyer at Georgetown’s Center on Privacy and Technology, and a computer scientist at the National Institute of Standards and Technology (NIST). The NIST computer scientist, Patrick Grother, was interviewed because “[e]very year, more than a hundred facial recognition developers around the world send his lab prototypes of test for accuracy.” For 60 Minutes that day, Mr. Grother was the expert on these algorithms.
No offense to Mr. Grother, who I’m sure is a smart guy, but the real experts were missing. Mr. Cooper did not interview the Black women who first brought the problem of algorithmic bias in facial recognition to academic and public attention: Joy Buolamwini, Timnit Gebru, and Deborah Raji. The incident captured in just a few minutes the long history of erasing the contributions of women and of women of color in particular. NIST, which had cited Buolamwini, Gebru, and Raji in its report, got its moment in the sun but never mentioned the underlying research; the police chief got his chance to cast the wrongful arrest as an isolated mistake. The Black women who founded the field were ignored, a fact even more remarkable given that 60 Minutes researchers and producers spent time with Buolamwini in preparation! That this happened in 2021 highlights the desperate need for Meg Leta Jones’s and Amanda Levendowski’s edited volume, Feminist Cyberlaw. Continue reading "Breathing Feminism into the Machine"
