Jan 9, 2024 Alexander Boni-SaenzTrusts & Estates
We stand at the precipice of a major transfer of wealth: in the coming years, trillions of dollars will pass through the inheritance system to the next generation from millions of decedents. Potential beneficiaries may be tempted to engage in wrongdoing to alter or accelerate these transfers to their own benefit. In Crimes Against Probate, Kevin Bennardo and Mark Glover focus on one such type of wrongdoing: interference with wills. Whether it is through undue influence or fraud, will forgery or will suppression, the inheritance system must deal with this threat to the testator’s donative wishes.
Bennardo and Glover argue that the current legal regime does not adequately deter this type of misconduct, and they provide two major contributions to the literature. First, they offer a clever reconceptualization of the misconduct at issue as evidentiary rather than proprietary in nature. Second, they supply a concrete reform proposal, which is a new criminal offense of intentional or willful interference with probate. Scholars of both criminal law and trusts and estates will have much to learn from this cross-cutting piece of legal scholarship. Continue reading "Crimheritance Law?"
Jan 8, 2024 Ellen BublickTorts
If one party argues that another is guilty of negligence for breathing air, no court should allow that claim or defense. Why not? A court might say that breathing air is not negligent in the breach sense—it is reasonable to breathe (everyone does it) and, at least for now, its benefits outweigh its costs. Another way that a court could reject the breathing-air contention would be to say that the breathing party has “no duty” not to breathe. By saying that the party has no duty, the court would recognize an entitlement in the breather. When courts recognize that actors enjoy some entitlements in their daily lives, they cannot avoid deciding which entitlements come with the parties to court, when parties should have those entitlements, and with respect to whom they should apply.
In Professor Eugene Volokh’s important article, The Right to Defy Criminal Demands, Volokh makes the powerful claim that in both civil and criminal cases, courts implicitly do, and explicitly should, “protect defiance of criminal demands against legal liability even when such defiance can increase the risk that the criminal will harm third parties.” (P. 416.) The issue is one of principle. Volokh calls it a “right,” though in a Hohfeldian sense it may be a privilege/liberty or no-duty rule. Continue reading "The Rights That Come With Us to Court: No-Duty Rules for the Victims of Crime and Criminal Threats"
Jan 5, 2024 Stacy-Ann ElvyTechnology Law
Schools increasingly use various technologies to monitor and collect information about students. The COVID-19 pandemic, which led to a large number of school closures and a transition to online learning, has also raised alarming questions about student privacy. For instance, virtual software used during remote exams to monitor students can scan students’ bedrooms, collect data from the microphones and cameras of students’ computers, and discern students’ keystrokes. In her article, The Private Life of Education, Professor Fanna Gamal makes a noteworthy contribution to scholarship in the privacy law and education law fields by highlighting embedded assumptions and significant shortcomings in privacy law governing student data. In doing so, she advances existing debates on the legal conception of information privacy. Gamal argues that student privacy laws’ immoderate focus on nondisclosure of students’ data outside of the school context fails to effectively consider the various ways in which schools can serve as the primary perpetrators of student privacy violations. She further contends that schools’ data practices may have disproportionate negative implications for members of historically marginalized groups, such as disabled and low-income students.
Gamal expertly critiques the provisions of the Family Educational Rights and Privacy Act (FERPA). She argues that FERPA’s excessive focus on the prohibition of data disclosures outside of schools spuriously assumes that schools should, by default, receive treatment as privacy protectors that act in the best interest of students’ privacy. Gamal aptly acknowledges that FERPA’s heavy reliance on non-disclosure is not unique to American privacy law. However, after unpacking the legal conception of student data privacy, Gamal goes on to convincingly argue that student data privacy law also assumes that students do not have a significant privacy interest in “data creation, collection and recording.” (P. 1319.) Continue reading "Centering Educational Institutions as Potential Sources of Student Privacy Violations"
Jan 4, 2024 Carol Necole BrownProperty
Danielle Stokes,
From Redlining to Greenlining, 71
UCLA L. Rev. __ (forthcoming, 2024) available at
SSRN (June 8, 2023).
I like circles, don’t ask me why. Maybe I like them because they make me think about how a few inches, feet, or yards can make a world of difference. If you enclose me in a circle, you may destine me for a lifetime (even generations) of disinvestment, lost opportunity, and lost hope. These are the vestiges of redlining, a historic process in which the federal government participated in racially segregated housing beginning in the 1930s by refusing to insure home mortgages in and near Black neighborhoods.
As I prepared to teach a housing law course this summer in Cambridge, England, I thought a lot about circles and in my research, I discovered Danielle Stokes’s recent article, From Redlining to Greenlining. The title of her article harkens to the old lending maps of the 1930s — the few inches on a map between green and red, blocks or miles on the ground, and untold lost opportunities or thwarted dreams for those enclosed in the thin red circle.
A red circle drawn around a neighborhood on a lender’s map signaled high lending risk and therefore an undesirable neighborhood. Place me on the outside of this thin red circle and my economic prospects (and my family’s prospects potentially for generations) are much improved. In fact, on these same color-coded maps, areas in green signified the lowest level of lending risk and were highly recommended for lending. They were also White, racially homogenous neighborhoods. Continue reading "“Draw Me a Circle” and Where You Place Me Makes All the Difference"
Jan 3, 2024 Sara MayeuxLegal History
On the day in 1853 when Franklin Pierce was inaugurated as president of the United States, his vice president, William Rufus King, took the oath of office remotely—from his sugar plantation in Cuba, where he was dying of tuberculosis. An Alabama cotton planter, King also owned an estate on the island and was resting there in the hopes (which proved futile) that the tropical air might cure him. As Ada Ferrer writes when recounting this anecdote in her awe-inspiring, Pulitzer Prize-winning work, Cuba: An American History: “The story of the inauguration of an American vice president in Cuba is unexpected” (P. 109).
I’ll say! As the holder of an advanced degree in U.S. history, I would like to think I know a little bit about the twists and turns of American designs on Cuba, but I must admit I did not know this story. As Ferrer goes on to explain, “the spectacle of an Alabama slaveholder taking office as vice president of the United States in the heart of Cuban sugar country” is not merely a fun piece of historical trivia but exemplifies just how intertwined the island and its northern neighbor have always been throughout their respective histories, initially through the economic system of slavery and also through the persistent dreams of prominent Americans that the United States might one day annex Cuba as a territory (Pp. 109-10). Continue reading "Insights for U.S. Law Professors in the History of Cuba"
Dec 21, 2023 A. Michael FroomkinJotwell
Jotwell is taking a short Winter break. Jotting should resume on Wednesday, Jan 3, 2024.
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Dec 20, 2023 Anita KrishnakumarLexLegislation
Jesse M. Cross,
The Fair Notice Fiction, 75
Ala. L. Rev. __ (2023) available at
SSRN (April 21, 2023).
In The Fair Notice Fiction, Professor Jesse Cross provides a much-needed deep dive into one of modern textualism’s core tenets—that giving statutes their ordinary meaning puts people on notice about their legal obligations and therefore promotes the rule of law value of fair notice to the public. The claim to promote fair notice is one that textualism long has asserted, but it has taken on a new importance in the last few years as textualist Justices have come to dominate the modern Court and to loudly proclaim their commitment to identifying a statute’s “original public meaning.”
The Fair Notice Fiction seeks to debunk this core textualist justification. Professor Cross’ central critique is that the idea of providing fair notice to the public through statutory text has always been a fiction—for at least two reasons. First, in the modern era, the reading of statutory text is a “language game accessible only to legal elites.” (P. 1.) Second, throughout most of history, literacy has been low, texts have been scarce, and language barriers have abounded—even in those early democracies often touted as providing fair notice of statutory meaning to the public. Continue reading "Undermining the Fair Notice Rationale for Textualism"
Dec 19, 2023 Sean CoyleJurisprudence
This lively and concise article surveys aspects of the philosophy of corrective (classically, commutative) justice in the domain of the Law of Torts, specifically the law of negligence. It begins by outlining the central problem: that the lawyer’s concepts of equality, principle and right do not seem relatable to the moral concepts most readily attributive to citizens, those of virtue, value and good. In a beautiful analytical movement, the author demonstrates that such divisions are merely apparent, not real. In doing so, the article connects this theme to that of moral luck: the idea that we may not, in fact, be in control of the consequences of our action such, that it is, at least, problematic to ascribe legal responsibility to our negligent actions.
The idea is not new: it reaches back certainly to Aristotle’s treatment of virtue in the Nicomachean Ethics, where he observes that virtue is insufficient for happiness, for a person needs a degree of good fortune to ensure that their efforts are rewarded, and a cursed though virtuous person cannot be described as happy. This relates to the multiple possibilities within which each person moves, sometimes fortunately, sometimes not. The law of negligence represents an intervention into these situations, based not on the form of the will of the acting person, but on external freedom (borrowing terms from Kant). A few sentences are worth quoting in detail:
For corrective justice theorists, Kant’s idea of external freedom provides the normative foundation for the losses and gains that are the outcome of human interaction, and normatively grounds the restoration of these losses and gains. Because your movements and actions have undermined my choices, because in the exercise of your external freedom you have undermined mine, it is justifiable for the judge to restore this inequality and exercise coercion via the law. In other words, the illegitimate use of your force on me justifies law’s force on you. (P. 107.)
The law of negligence thus obliterates the problem of moral luck by suppressing it: it considers external freedom to be the only relevant issue facing the law, to the exclusion of the question of will. The law is essentially retrospective as it looks backward to what has already happened. Continue reading "Negligence and Civil Maturity"
Dec 18, 2023 Christophe GeigerIntellectual Property Law
As the first empirical evidence is published on the consequences of Generative AI systems on labor markets, broad anxiety is felt from creator communities on the effects of this technology on their income streams. Consequently, the question of how to deal with Generative AI from a copyright law perspective is gaining a lot of attention globally. Several lawsuits have been filed in the US by creators against AI operators and the first attempts to legislate that matter have already been introduced at the national level. The EU is currently finalizing an ambitious regulation package called the “AI Act” with important implications for its copyright regime, in particular the implementation of transparency obligations concerning copyright-protected works used to train the AI algorithms. In this context, Martin Senftleben’s new article Generative AI and Author Remuneration is particularly timely and proposes a very inspiring reflection on what could be the way forward regarding copyright reforms in this field.
One of Senftleben’s main concerns is to find a workable approach not to disincentivize AI innovation while at the same time creating new revenue streams for “flesh and blood authors” to secure remunerations that will improve their working and living conditions. Indeed, the starting point of the author is that:
the increasing sophistication of AI systems will inevitably disrupt the market for human literary and artistic works. Generative AI systems provide literary and artistic outputs much faster and cheaper. It is therefore foreseeable that human authors will be exposed to substitution effects. They may lose income as they are replaced by machines in sectors ranging from journalism and writing to music and visual arts. Continue reading "To Pay or Not to Pay (for Training Generative AI), That is the Question"
Dec 15, 2023 Rosalind DixonInternational & Comparative Law
Rarely has a book by a constitutional lawyer had such timeliness: Julie Suk’s monograph, After Misogyny: How the Law Fails Women and What to Do About It, talks about the ways in which women often do too much, and men too little, to sustain the life, work, and health of others.
In 2023, the same message is all around us. Anna Funder’s 2023 much lauded book, Wifedom: Mrs Orwell’s Invisible Life, tells the story of how George Orwell’s literary corpus was built on the back of the contributions of his wife, Eileen O’Shaughnessy, and yet those contributions were consistently minimized by Orwell himself and others writing about his work.
The new mini-series The Change, on the UK’s channel 4, gives a humorous though still highly pointed account of what Suk argues is core to misogyny, namely: the “overentitlement and overempowerment” of men compared to women. The protagonist of The Change, Linda, has spent decades carefully recording the amount of time she spends on household work (to the second), and when she turns 50, she decides that the lack of recognition of that work within the family calls for change, including a well-earned sabbatical from wifedom.
What distinguishes After Misogyny from these parallel accounts of sexism or misogyny is that Suk is a leading comparative constitutional scholar, and a central argument of the book is that constitutional norms offer an important resource in responding to this problem. Continue reading "Towards a Constitutionalism of Care"
