Feb 20, 2024 Suja A. ThomasCourts Law
Thomas Frampton,
The First Black Jurors and the Integration of the American Jury, 24
N.Y.U. L. Rev. __ (forthcoming, 2024), available at
SSRN (Sept. 5, 2023).
Thomas Frampton’s article The First Black Jurors and the Integration of the American Jury reads like an exciting book giving us a new perspective on the first black jurors. It helps us better understand the jury as a democratic institution.
We know juries decide few cases—less than 1% of civil cases and less than 4% of criminal cases. And we are still trying to discover why. The question is complicated. At least one scholar has proffered that it may have to do with race—that as the jury has become more diverse, juries have disappeared.
This narrative makes Frampton’s article even more interesting. To understand more about whether diverse juries have led to fewer jury trials, we need to discover when and why juries became diverse. The answers to these questions also help us think about other important rights such as citizenship. Continue reading "Investigating the When and Why of the First Black Jurors"
Feb 19, 2024 Omari SimmonsCorporate Law
Nearly two-thirds of workers have access to an employer-sponsored retirement plan (P. 324.) Consequently, retirement security is a salient issue in US politics and corporate governance. BlackRock, Vanguard Group, and State Street, the three largest investment managers, who own about 20 percent of every company in the S&P 500 Index, offer a menu of mutual funds and other services for employer-sponsored retirement plans. (P. 308.) Institutional investors’ prominence and putative conflicts of interest are hot topics among scholars and regulators. (Pp. 307-21.)
Natalya Shnitser’s must-read article, The 401(k) Conundrum in Corporate Law, argues that these concerns and efforts, however well-intentioned, are based upon shaky theoretical foundations: (i) a description of how employer-sponsored retirement plan decisions are executed that does not reflect the evolution of plan governance and (ii) reliance on outdated information that fails to consider recent trends showing less biased voting decisions among fund managers. The article deftly captures the intersection of corporate governance and employee benefits law. Continue reading "Retiree Exploitation? Debunking the Retirement Business Theory"
Feb 16, 2024 Daniel BarnhizerContracts
Marietta Auer,
Bargaining with Giants and Immortals: Bargaining Power as the Core of Theorizing Inequality, __
L. & Contemp. Probs. __ (forthcoming)
, available at
SSRN (Aug. 28, 2023).
In this article, Marietta Auer, Director of the Max Planck Institute for Legal History and Legal Theory, takes a sophisticated and nuanced look at the role of unequal bargaining power as it relates to both economics and legal theory. From my own perspective as an unrepentant libertarian and capitalist, there is much in the article with which I disagree. However, Auer’s observations on the importance of bargaining power inequality, the relationship between law and markets in a [quasi-]capitalist economic and political system, and the futility of attempts to use law to redistribute bargaining power among market actors are insightful, creative, and require engagement by those working on the problem of bargaining power.
Auer’s analysis begins with a survey of both classical and neoclassical economic arguments regarding the neutrality of markets. According to Auer, under the classical conception of private law in relation to markets, “the ground rules of private law, in particular property and contract law, provide a politically neutral framework that enables market transactions among equals.” (P. 6.) While it is questionable whether and to what extent legal scholars and courts of the so-called formalist period in American law and jurisprudence actually adhered to the classical conception as described by the later American Legal Realists, the advent of American Legal Realism addressed the apparent disconnect between classical contract and property law versus practical economic realities in which facially neutral legal rules promoted exploitation and coercion in transactions affected by bargaining power disparities. As noted (with a big helping of judicial hubris) in what appears to be the first U.S. case to recognize explicitly the legal concept of inequality of bargaining power:
Our enlightened modern thought realizes that an equality of bargaining power between two such unequal parties [employees and employers] is impossible, and has attempted to equalize the balance through the labor unions and state regulation of industry; but old ideas die hard, and the pathways of progress are strewn with the fragments of legislation designed for this purpose but wrecked on the insistence of court after court that the state must not interfere with the ‘free right of contract.’ Continue reading "Maybe Odysseus Was a Capitalist?"
Feb 15, 2024 Felix MormannLexEnergy Law
Electricity is the lifeblood of America. Automotive manufacturing in Detroit, server farms in Silicon Valley, the heating and cooling of our homes, and the charging of our smart devices all depend on the availability of affordable and reliable electric service. Electricity, in other words, is as vital to our economy and lifestyle as the air we breathe is to our survival. At the same time, the way we generate, transmit, and use electric power directly impacts, often adversely so, the quality of our air and water, exacerbates global climate change, and causes deadly wildfires, among other societal impacts. Given the complexity of the electric grid and its many interactions with social welfare and the public interest, one might expect Public Utility Commissions (PUCs) to provide comprehensive oversight to address and regulate these interactions. Most do not.
In his excellent new article, Precautionary Ratemaking, professor Jonas Monast makes a compelling case for PUCs to become more proactive regulators of the wide-ranging risks associated with electric utilities’ actions. The article urges utility commissioners to interpret their regulatory mandate beyond the traditional confines of economic regulation and least-cost electric service to include risk analysis and management according to the precautionary principle that underpins much of modern environmental law. Continue reading "Public Utility Regulation Through the Lens of Risk Management"
Feb 14, 2024 Richard MurphyAdministrative Law
To start, please forgive a few preliminaries: The Constitution provides express instructions governing appointments of Officers of the United States but not about removals (other than by impeachment). Congress has often stepped into this gap by imposing limitations on the power of the President to remove agency officials. The Supreme Court upheld for-cause style limits on presidential removal authority from the New Deal up until the arrival of the Roberts Court. The Roberts Court, following a path blazed by Justice Scalia, adheres to the principle of the “unitary executive,” which holds that the power to remove agency officials is a necessary element of the “executive power” that Article II of the Constitution provides “shall be vested in a President.” Art. II, § 1, cl. 1. Accordingly, the Roberts Court has invalidated several statutory restrictions on presidential removal power in a series of high-profile cases. To support this embrace of the unitary executive, the Roberts Court has relied upon one precedent above all others, Myers v. United States, 272 U.S. 52 (1926). Chief Justice Roberts has characterized Myers as having “conducted an exhaustive examination of the First Congress’s determination in 1789, the views of the Framers and their contemporaries, historical practice, and our precedents up until that point.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020). This “exhaustive examination” conclusively demonstrated that the President’s “executive power” must include a general authority to remove executive officials. Id. at 2197-2198.
In their terrific article, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, Professors Katz and Rosenblum take a blowtorch to this reading of Myers. On their account, President—whoops, sorry, Chief Justice—Taft’s 72-page majority opinion in Myers did not provide an accurate, originalist report on the Framers’ eighteenth-century expectations regarding the power of the presidency. Rather, Chief Justice Taft constitutionalized a twentieth-century, Progressive vision of the President as “popular tribune and chief administrator.” (P. 8.) Myers thus provides an example of, gasp, “living constitutionalism.” (P. 19.) And so does the Roberts Courts’ twenty-first century deployment of Myers for its own, not-so-Progressive ends. Continue reading "Myers, We Hardly Knew Ye?"
Feb 13, 2024 Joseph SeinerWork Law
In The Causation Canon, Professor Sandra Sperino performs a superb analysis of the Supreme Court’s evolving analysis of causation standards. The piece carefully synthesizes the decisions in this area, identifying a new canon of statutory interpretation now used by the Court – coined by Professor Sperino as the “Causation Canon.”
The law with respect to causation has always been muddled. In the field of employment discrimination law and worklaw more generally, causation has persistently presented a tremendous burden to claimants in the field. While establishing causation in other areas of the law may often be much more straightforward, showing discriminatory employer intent can present a Herculean task. There are a variety of reasons for the difficulty, including that so much of the critical information in such cases often resides with the employer and can be notoriously difficult to uncover. Personnel files, worker emails, and other critical evidence may not be readily accessible to a worker who has been recently fired, or may be accessed only at substantial cost during discovery. Yet the law requires that causation be established to recover in most workplace cases, particularly with respect to disparate treatment employment discrimination claims.
Professor Sperino’s groundbreaking paper identifies the new way that the Supreme Court has approached statutory interpretation with respect to issues involving causal determinations. As she identifies the Court’s new doctrine, which has evolved over the past decade, “[w]hen a statute uses any language that might relate to factual cause, the Court will assume that Congress meant to require the plaintiff to establish ‘but-for’ cause.” (P.704.) Professor Sperino traces the doctrine back to 2013. Prior to this time, she notes that the Court looked at each statute individually in determining how to interpret factual cause in each matter. Over the past decade, however, the Court has looked at causation differently, assuming that the but-for requirement exists universally across statutes. Continue reading "The Supreme Court’s Evolving (and Dubious) View on Causation"
Feb 12, 2024 David HortonTrusts & Estates
- Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners, available at SSRN (Jan. 20, 2023).
- Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries, available at SSRN (Jan. 20, 2023).
Some of the most important rules in inheritance law may be out of date. Intestacy statutes distribute the assets of most decedents in the U.S. Because they provide an estate plan by default, they’re supposed to reflect majoritarian preferences. Many such laws, including the 1990 amendments to the Uniform Probate Code (“UPC”), favor ties of marriage and blood. Yet American families are rapidly evolving. Unmarried cohabitation is on the rise. Likewise, skyrocketing rates of divorce and remarriage mean that one child in six now lives in a “blended” family. Arguably, these shifts cast doubt on the Leave It to Beaver conservativism of traditional intestacy regimes.
Unfortunately, the intuition that intestacy statutes are archaic has long been just that—an intuition. There’s little reliable data about what people want to have happen to their property after they die.
Enter Yair Listokin and John Morley, who have posted a pair of sophisticated empirical studies about dispositive preferences on Social Science Research Network: A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners and A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries. Continue reading "Rich Data About Dispositive Preferences"
Feb 9, 2024 Charlene D. LukeTax Law
Luís Calderón Gómez,
Whose Debit Is It Anyway?, 76
Tax L. Rev. 159 (2022) availible on
SSRN.
Luís Calderón Gómez asks the question, “Whose Debt Is It Anyway?,” to frame his analysis of a situation that, while common, remains understudied and undertheorized: the tax treatment of debt co-obligors.
Calderón Gómez’s initial contribution is to demonstrate that there is, in fact, a problem. Co-obligated debt offered by corporate issuers alone is “in the hundreds of billions” of dollars under a “conservative estimate” based on SEC documentation. Yet, tax law generally assumes a conceptual paradigm “where one creditor lends money to one borrower.” Calderón Gómez begins the article by illustrating the inconsistent and incoherent tax treatment that results when a loan arrangement departs from this paradigm. Continue reading "The Taxing Puzzle of Co-Obligated Debt"
Feb 8, 2024 Felicia CaponigriIntellectual Property Law
People often want to experience aura, especially from the products we purchase. Professors Bechtold and Sprigman explore this phenomenon in their interdisciplinary and comparative article Intellectual Property and the Manufacture of Aura. It explains how and why companies manufacture aura to make their products more attractive in the market to consumers.
They offer an “eclectic array of examples” (P. 357) from Italian Bergamasco salami to Birkenstock sandals to NFTs, and more. Why do you choose a Bergamasco salami for your next aperitivo instead of any random salami? That’s likely because you are not just wanting to consume a product made of excellent ingredients from Bergamo, Italy. You are also seeking to consume a specific narrative and participate in a cultural experience implicitly communicated by the narrative aura infused into the Bergamasco salami. Continue reading "Auratic IP in a Culture of Copies"
Feb 7, 2024 Cristina TilleyTorts
Private causes of action for constitutional injuries are doctrinal eels. They slither freely among formal legal categories – variously creatures of constitutional law and tort; of federal jurisdiction and even conflict of laws. They have no agreed genus name; sometimes they are called Ku Klux Act claims; sometimes Enforcement Act claims; technically claims pursuant to 42 U.S.C. Section 1983 and conversationally constitutional tort. Because they swim in and out of jurisprudential silos, they elude critical analysis under any single legal lens, virtually demanding interdisciplinary consideration. In Colorblind Constitutional Torts, Osagie K. Obasogie and Zachary Newman rise to this challenge, using history, doctrine, corpus linguistics, and critical race theory to pin down constitutional tort and identify an as-yet undiscovered reason that this once-powerful tool of racial justice is falling short of its early promise.
Colorblind begins with a compact and opinionated overview of Section 1983 history, beginning in the antebellum period and moving to the twenty-first century. Obasogie and Newman establish that pre-war slave patrols in the Southern states mutated into a loose web of post-war private and public racial vigilantism driven by “militias, the Ku Klux Klan, and eventually (in some areas) what we now call ‘the police.’” (Pp. 1148-50.) The Reconstruction Amendments, they suggest, reflected Congressional recognition that the mere fact of emancipation was insufficient to produce meaningful liberty for formerly enslaved people. The Fourteenth Amendment was therefore a critical companion initiative, designed to “change structural and institutional relations between whites and African-Americans.” (P. 1146.) Continue reading "Colorblind? Constitutional? Tort?"
