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?"
Feb 6, 2024 Margot KaminskiTechnology Law
How should we think about liability when AI systems generate illegal speech? The Journal of Free Speech Law, a peer-edited journal, ran a topical 2023 symposium on Artificial Intelligence and Speech that is a must-read. This JOT addresses two symposium pieces that take particularly interesting and interlocking approaches to the question of liability for AI-generated content: Jane Bambauer’s Negligent AI Speech: Some Thoughts about Duty, and Nina Brown’s Bots Behaving Badly: A Products Liability Approach to Chatbot-Generated Defamation. These articles evidence how the law constructs technology: the diverse tools in the legal sensemaking toolkit that are important to pull out every time somebody shouts “disruption!”
Each author offers a cogent discussion of possible legal frameworks for liability, moving beyond debates about First Amendment coverage of AI speech to imagine how substantive tort law will work. While these are not strictly speaking First Amendment pieces, exploring the application of liability rules for AI is important, even crucial, for understanding how courts might shape First Amendment law. First Amendment doctrine often hinges on the laws to which it is applied. By focusing on substantive tort law, Bambauer and Brown take the as-yet largely abstract First Amendment conversation to a much-welcomed pragmatic yet creative place. Continue reading "Risky Speech Systems: Tort Liability for AI-Generated Illegal Speech"
Feb 5, 2024 James E. PfanderCourts Law
Samuel Beswick,
Equality Under Ordinary Law, 106
Sup. Ct. L. Rev. __ (forthcoming, 2024) available on
SSRN (Nov. 9, 2023).
The Supreme Court oversees a system of government accountability that has attracted a range of familiar and persuasive criticisms. Rather than basing liability on generally applicable legal principles, the Court has applied doctrines of sovereign and official immunity that block many of the suits brought by victims of undue government violence. The Court has sought to balance the interests of the public in assuring zealous law enforcement and the interests of the victims in securing redress when excessive zeal results in injuries. Few believe that the Court has struck the proper balance. Its doctrine of qualified immunity shields all but the plainly incompetent or deliberately malicious from liability in the name of eliminating the chilling effect of personal liability—a threat neutralized by the widespread practice of indemnification. The search for clear law, the touchstone for immunity decisions, entails scholastic inquiries into legal nuances that do not obviously shape the behavior of officers on the job.
One can measure just how far wrong the Court has gone in a variety of ways: by toting up examples of clear injustice in the cases; by examining the culture of law enforcement and how it encourages violent confrontation; by comparing the liability rules in place today with those that governed police work in years gone by. But we have largely lost sight of one key measure of legal performance: how well does our system of government accountability compare to the rules of tort law that govern ordinary citizens in ordinary proceedings before ordinary courts. Largely, but not perhaps completely lost sight, thanks to the comparative work of Canadian legal scholar Sam Beswick. In the arresting paper at the center of this jot, Equality Under Ordinary Law, Beswick compares government accountability litigation under the Diceyan model of ordinary law in Canada with the qualified forms of constitutional tort liability that prevail in the United States. Beswick shows, unsurprisingly, that the Diceyan model outperforms the American system in providing some measure of redress to the victims of wrongful official conduct. Continue reading "Ordinary Law, Constitutional Torts, and Governmental Accountability"
Feb 2, 2024 Amy SalyzynLegal Profession
What should new lawyers be required to promise, as a condition of entry into the legal profession? This inquiry raises existential questions about what it means to practice law. It can also prompt questions about the appropriate reach of lawyer regulation. Lawyer oaths—which are used to elicit promises from new lawyers in North America—should not be seen as merely symbolic and ceremonial (although they are certainly both these things). Lawyer oaths also intersect with core legal ethics questions. Thus, what is included in these oaths deserves our attention.
In Human Rights and Lawyer’s Oaths, Lauren Bartlett takes a deep dive into lawyer oaths, resulting in a comprehensive historical account of lawyer oaths in the United States, as well as a novel proposal for a way forward. In short, Bartlett contends that lawyer oaths can be “useful as a tool to build a dignified, respectful, and inclusive legal profession” but in order to function as such, “the unremarkable, irrelevant, inappropriate, discriminatory, and obsolete language in lawyer’s oaths must be removed and replaced by ethical guidance and aspiration” (P. 415). Bartlett points to human rights norms, specifically, as an optimal touchpoint for better aligning lawyer oaths with our current times. One potential benefit, according to Bartlett, is that human rights norms can point lawyers to more aspirational ethical and moral ideals than can be found in professional conduct codes, which tend to focus on minimum standards. Insofar as human rights norms transcend country borders and legal practice is increasingly globalized, Bartlett also argues that “legal ethics—and lawyer’s oaths in particular—should not stand out as separate from human rights” (P. 437). Continue reading "Out with the Old (Oaths): Lawyer Promises for a New Era"
Feb 1, 2024 Yael LifshitzProperty
In When Nature’s Rights Go Wrong, Professors Mauricio Guim and Michael Livermore offer much needed analytical clarity to a significant, yet still understudied, field: rights of nature. After centuries of adopting a predominantly human-centric perspective, a more biocentric outlook is now coming to the fore.
Much like property rights, nature’s rights award control over clusters of natural resources. However, unlike traditional property rights, in the case of nature’s rights—as the name suggests—the right holders are non-human. What’s more, they tend to attach to a broader and more general natural entity, such as an ecosystem or a class of species, rather than a more crisply defined right-holder.
This carries profound implications for nature’s rights function and ability to achieve their environmental or climate-related goals. Analyzing nature’s rights is therefore especially important at present, as mounting evidence suggests our current legal mechanisms are insufficient to tackle the climate crisis. Continue reading "Rethinking Nature’s Rights"
Jan 31, 2024 Eric BiberLexEnvironmental Law
The Inflation Reduction Act (IRA), enacted by Congress in 2022, is by far the most significant piece of climate legislation enacted by Congress, despite (or perhaps because of) its name. The IRA provides billions of dollars of tax credits, subsidies, grants, and other support for the development and deployment of the technology we need to decarbonize our economy: electric vehicles, electric vehicle chargers, industrial-scale renewable energy, transmission lines to connect renewable energy sources to consumers, carbon capture technologies, and much, much more. Models indicate that the IRA will result in substantial progress towards decarbonizing the American economy. And the investment in decarbonization technology will not just have direct climate benefits. By creating economic investments that depend on decarbonization progress, the IRA can help build future political support for more progress on decarbonization down the road.
But while money is necessary to build all of this infrastructure that allows for decarbonization, it is not sufficient. The first three parts of Ruhl and Salzman’s The Green’s Dilemma: Building Tomorro’s Climate Infrastructure do a nice job of providing an overview of why. In the United States, constructing large-scale infrastructure–such as transmission lines or large renewable energy facilities, or obtaining the minerals we need for electric vehicle batteries–requires permits as well. Permits from federal, state, and local governments. Permits that can take months or years to obtain, and that can be subject to litigation that adds time and uncertainty. And ironically, many of those permits come from traditional environmental law: permits under the Clean Water Act or the Endangered Species Act, for instance. And for federal permits under other, non-environmental laws, the federal government is required to undertake environmental review pursuant to the National Environmental Policy Act (NEPA) before issuing the permit. And the delays caused by permitting are not just an issue of adding cost (and therefore reducing the climate benefits the US obtains for each dollar spent), though this is important. Perhaps even more important from the perspective of climate policy is that delay in implementation of decarbonization technology and infrastructure means we spend more time emitting more carbon into the atmosphere–when climate policy as it stands is a race against time. Continue reading "Can We Build What We Need to Decarbonize Our Economy?"
Jan 30, 2024 Mary ZieglerLegal History
In the aftermath of Dobbs v. Jackson Women’s Health Organization, abortion is once again a crime in large swaths of the United States. Abortion opponents have taken a particularly keen interest in criminally punishing physicians and other abortion providers. Nicholas Syrett’s masterful study of the nation’s most famous “abortionist,” Madame Restell, is at once the story of a significant and poorly understood woman and an illuminating origin story of criminal abortion laws. Restell, née Anna Lohman, was born in England in 1812 immigrated to the United States, and became a single mother before at some point gaining medical training and reemerging as Madame Restell, an unapologetic and famous “female physician.”
Syrett offers a compelling portrait of Restell and the wide range of patients she served. The Trials of Madame Restell also tells the story of the reporters, anti-vice activists, and prosecutors who invented “Restell,” the abortionist who embodied a form of moral decay that her critics called “Restellism.” (P. 2, 58.) Syrett’s book brings to life the world of nineteenth-century New York. Yet despite—or perhaps because—Syrett’s story is deeply rooted within a particular time and place, The Trials of Madame Restell feels all too relevant to post-Dobbs America. Syrett captures the complexity of both pregnancy and its medical treatment, as well as the way that politicians, social movements, and prosecutors deliberately blind themselves to this nuance. Continue reading "The Invention of the Abortionist"
Jan 29, 2024 Nina VarsavaJurisprudence
Scott Hershovitz’s Law is a Moral Practice is an important and compelling contribution to general jurisprudence. It is also a delight to read, written in Hershovitz’s characteristically breezy and playful style, with anecdotes and examples throughout that illuminate and animate his picture of law in memorable ways. Readers will likely appreciate Hershovitz’s light argumentative touch. He encourages us to try out seeing law his way rather than insisting that law must be seen this way or that it is the only reasonable or useful way to see law.
On the moral practice picture—which is what Hershovitz invites us to call the theory of law he sets out in Law is a Moral Practice—law and morality are not separate normative systems. The rights and duties debated in court are moral rights and duties. It is thus the province of courts to answer moral questions. (P. 183.) And legal reasoning is a special kind of moral reasoning. Continue reading "The Moral Practice Picture of Law"
