Nov 30, 2023 Edward RubinAdministrative Law
Jed. H. Shugerman & Jodi L. Short,
Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law, 65
B.C. L. Rev. __ (forthcoming, 2024) available at
SSRN (August 4, 2023).
The Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inconsistent with another group of the Court’s opinions, which the authors describe as the Court’s presidentialism.
Their analysis is incisive. While addressed to a Court that has a rather cavalier attitude toward doctrinal coherence, the article’s convincing empirical evidence may encourage the Justices to be more thoughtful as they move into the post-Chevron phase of administrative law. In any event, it will certainly provide observers with insights for continued criticism of the Court, and perhaps provide this Court’s successor with guidance for repairing the damage. Continue reading "Major Contradictions at the Roberts Court"
Nov 29, 2023 Anne Marie LofasoWork Law
The National Labor Relations Act is infamous for its weak remedies, particularly the Board’s lack of authority to grant punitive relief. While commentators have focused on the ineffectiveness of remedies, few have tried to answer why, on a theoretical level, those remedies are weak and ineffective. In Consequences of a Mismatch: Remedial Philosophy and Statutory Rights Under the National Labor Relations Act, Rita Trivedi tackles this question. She explains that NLRB remedies have been limited to contract-like make-whole remedies, which she calls ex-post relief, even though labor rights are not contractual rights but “something of value that [Congress] deemed worthy of protection,” which she calls ex-ante legal rights. (P. 25.)
To make her point, Trivedi breaks down her argument into five parts. She begins with the historical fact that NLRA remedies have been limited to make-whole relief, such as that used to remedy breach-of-contract claims, since the Supreme Court’s 1940 decision in Republic Steel Corporation v. NLRB. For example, the remedy for discriminatory discharge is backpay and reinstatement; however, backpay damages fail to deter most employers from violating the Act because wages are generally low. For the employer, it often pays to break the law. Continue reading "Fitting a Square Peg Into a Round Hole: The Myriad Problems with Using Make-Whole Relief To Remedy Breaches of Labor Rights"
Nov 28, 2023 Kent D. SchenkelTrusts & Estates
Adam S. Hofri-Winogradow,
The Irreducible Cores of Trust Obligations, 139
L.Q. Rev. 311 (2023), available at
SSRN, (May 30, 2023).
Trust settlors transfer gifts to trustees, but intend to benefit only the trust’s beneficiaries. So trust law ensures that trustees, who legally “own” trust property, are constrained in their actions by legal rules and fiduciary standards. But trusts are also malleable, subject to customization to achieve a settlor’s particular purposes. And that is where, according to Adam Hofri-Winogradow, in his article, “The Irreducible Cores of Trust Obligations,” a trustee’s obligations rest on “an enduring contradiction.” Hofri-Winogradow points out that trustees’ burdens include both duties and liabilities, but that trust settlors sometimes either explicitly exclude certain of these in the trust instrument, or “undermine” them by giving nonfiduciary third parties the power to direct actions of the trustee.
It is easy to see why a complete elimination of a trustee’s legal constraints would by extension eliminate the trust as a useful mechanism. Indeed, a trust without any fiduciary constraints is not a trust at all, it’s simply an equitable charge. But what trustee obligations are essential to the nature of a trust? This is a subject of considerable debate in the U.S. and abroad. Hofri-Winogradow focuses on this “irreducible core” of a trustee’s obligations, and maintains that attempts to find a single essential core are unstable within and across global jurisdictions. Given the many jurisdictions and contexts in which trusts are used, his article represents a fresh perspective on this issue. Continue reading "Towards resolving a Contradiction of Trust law"
Nov 27, 2023 Mireille HildebrandtTechnology Law
Hideyuki Matsumi & Daniel J. Solove,
The Prediction Society: Algorithms and the Problems of Forecasting the Future, GWU Legal Studies Rsch. Paper (forthcoming), available at
SSRN (June 5, 2023).
In their draft paper, The Prediction Society: Algorithms and the Problems of Forecasting the Future, Matsumi and Solove distinguish two ways of making predictions: “the first method is prophecy–based on superstition” and “the second is forecasting–based on calculation.” Initially, they seem convinced that the latter, calculative, type of prediction is more accurate and thus capable of transforming society as it shifts control over peoples’ future to those who develop or deploy such systems. Over the course of the paper, however, that distinction between deceptive prophecy and accurate prediction blurs. The authors make the argument that the pervasive and surreptitious use of predictive algorithms that target human behaviour makes a difference for a whole range of human rights beyond privacy, highlighting the societal impact these systems generate, and requiring new ways of regulating the design and deployment of predictive systems. The authors foreground the constitutive impact of predictive inferences on society and human agency, moving beyond utilitarian approaches that require the identification of individual harm, arguing instead that these inferences often create the future they predict.
Most of the points they make have been made before (e.g. here), but the lucid narrative argumentation presented in Matsumi’s and Solove’s paper could open a new conversation in the US as to how legislatures and courts should approach the issue of pre-emptive predictions with regard to constitutional rights beyond privacy. The paper also expands that same discourse beyond individual rights, highlighting the pernicious character of the manipulative choice architectures that build on machine learning, and showing how the use of ‘dark patterns’ is more than merely the malicious deployment of an otherwise beneficial technology. Continue reading "Addressing the Modern Shamanism of Predictive Inferences"
Nov 24, 2023 Leigh OsofskyTax Law
Natasha Sarin & Mark J. Mazur,
The Inflation Reduction Act’s Impact on Tax Compliance—and Fiscal Sustainability (2023), available on
SSRN (May 15, 2023).
In the Inflation Reduction Act, Congress made a monumental investment in the IRS, reversing a decades-long trend of inadequate funding. A critical question is: how much was this investment worth? Government scorekeepers came up with a number of about $200 billion (yielding a $120 billion net amount, after taking into account the cost of the increased funding). But, in a new paper, The Inflation Reduction Act’s Impact on Tax Compliance—and Fiscal Sustainability, Natasha Sarin and Mark Mazur argue that these official estimates significantly understate the return on investment in the IRS. They estimate that the funding would enable the IRS to raise at least $560 billion ($480 billion, net) over the next ten years, and that, depending on taxpayers’ behavioral response, it is possible the return may actually be closer to $1 trillion.
Sarin and Mazur’s analysis is compelling for a number of reasons. Sarin and Mazur are highly qualified experts, with a blend of extensive government, as well as academic, and other, experience, including recent stints in the Treasury Department in the Biden Administration, during formulation of the Inflation Reduction Act. Their analysis reflects this deep well of experience and training, in that it draws on government data as well as academic work regarding compliance. The result is a particularly nuanced picture of how the Inflation Reduction Act funding will affect the IRS and its collection capacity. Their conclusion – that the return on IRS funding could be approximately $500 billion in the first decade and $1 trillion in the ten years thereafter – is an important one; so is their description of all the particular ways that the IRS will improve, and why this improvement is an essential part of good governance. Continue reading "Estimating the Return on Investment in the IRS"
Nov 23, 2023 Sarah SchindlerProperty
In her important new essay, White Cities, White Schools, Professor Erika Wilson discusses the intersection of property law and education as part of an excellent symposium uniting the two topics, organized by Professors LaToya Baldwin Clark and Tim Mulvaney in the Columbia Law Review.
Wilson’s piece builds on recent law and geography scholarship by focusing on race, exclusion, and school district boundaries—topics that are familiar to those of us who teach land use and local government law but underdiscussed in the literature. Continue reading "Spatial Inequality: The Reproduction of Racial Segregation Through School District Boundaries"
Nov 22, 2023 Tom SimmonsLexElder Law
David Horton & Reid Kress Weisbord,
The New Undue Influence, __
Utah L. Rev. __ (forthcoming 2024); Rutgers L. Sch. Rsch. Paper, available at
SSRN (February 24, 2023).
In The New Undue Influence, Professors Horton and Weisbord contend that a newfangled sort of undue influence has recently emerged. As a means to challenge testamentary gifts, undue influence has endured its share of critics who claim it often takes the form of prejudiced views of “unnatural” objects of the donor’s bounty—such as same-sex spouses or age-differentiated partners. The popularity of undue influence once seemed to be fading. But the doctrine has now developed new teeth, resulting in a more effective tool for unwinding bequests produced by improper pressures on vulnerable, often elderly, testators.
This reinvigoration of undue influence can be discerned, Horton and Weisbord explain, in three areas. First, undue influence claims have been economically incentivized in some states by means of legislatively authorized fee-shifting as well as double damages (“a punitive makeover”) (P. 33) along with a relaxation of the standing rules governing who can bring a claim. Second, an evidentiary makeover has generated presumptions for claimants when the alleged culprit stood in a confidential relationship with the testator. Third, coupling undue influence with a new cause of action—elder abuse—can enhance the leverage of claimants with more generous statutes of limitation. Tracing these three related developments alone would constitute an important piece of scholarship. But the second half of The New Undue Influence also introduces an empirical analysis of these trends. Continue reading "Ultramodern Undue Influence"
Nov 21, 2023 Eli WaldLegal Profession
After the JD (AJD), is a national longitudinal study of legal careers in the United States, which tracked the professional lives of more than 4,500 lawyers during their first twenty years after graduating in 2000 and passing the bar exam. The first wave of interviews was done in 2002-3; the second wave in 2007; and the third wave in 2012-13. Subsequently, employment data for respondents has been updated through web searches through 2019. Some of AJD’s key findings are that female attorneys in every racial and ethnic group report higher levels of discrimination than their male counterparts; and attorneys of color, white women, and LGBTQ+ attorneys perceive high levels of workplace bias compared to white male attorneys and to respondents in other workplace studies.
Over the years, AJD researchers have published numerous articles reporting and discussing the study’s findings. Now, The Making of Lawyers’ Careers collects some of the study’s main findings. The book is organized in four parts: The Structure of Lawyers’ Careers, which revisits and explores the reality of lawyers in the United States clustering in individual and corporate “hemispheres” of practice; The Narratives of Lawyers’ Careers, which tells the stories of law firm, solo, in-house and government lawyers; Inequalities of Race and Gender, which investigates inequalities in the practice of law; and Public Roles and Private Lives, which studies public service, pro bono and lawyers’ satisfaction. Continue reading "The Making of Lawyers’ Careers"
Nov 20, 2023 Sergio J. CamposCourts Law
Richard Marcus,
The Magnetic Pull of American Discovery: Second Thoughts About American Exceptionalism,
in Proceso Civile e Costituzione (2023) available at
SSRN (Oct. 4, 2023).
Recently I have looked internationally to address the civil procedure problems that keep me up at night. There are other legal systems, after all, and the U.S. way of doing things is not the only (or even best) way. Comparing procedural systems may reveal things about our own system that are easy to miss. One is reminded of the David Foster Wallace story about fish in water:
There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes “What the hell is water?”
Rick Marcus, a true master of the field, helps us notice the water of discovery with an article written for a festshrift honoring Italian procedural scholar Nicolo Trucker. Marcus speaks from a position of significant authority. Along with being a co-author of the leading civil procedure treatise and a leading procedure casebook, Marcus serves as the reporter for the Advisory Committee on Civil Rules, the ad hoc committee responsible for review and amendments of the Federal Rules of Civil Procedure. Continue reading "How is the Discovery Water Here?"
Nov 17, 2023 Kunal ParkerLegal History
Rules are everywhere. Given not only the immense variety of rules, but also the great variety of registers through which rules might be understood, one might well ask: is a historical account of rules even possible? In Rules: A Short History of What We Live By, the historian of science Lorraine Daston takes on this daunting task.
Even as she restricts herself largely to the Euro-American world, Daston ranges across a truly dazzling array of rules: rules of conduct in medieval monasteries; the forms of ancient and modern algorithms; the changing structure of recipes in cookbooks; sanitary and traffic regulations in early modern cities such as Amsterdam, London and Paris; the changing rules governing work; the rules of language and grammar; the relationship between law and equity; the emergence of ideas of natural law and laws of nature; the career of casuistical reasoning; notions of sovereign exceptions in political theory; and a great deal more. This is in itself a considerable scholarly achievement. Continue reading "Thick and Thin Rules"
