Nov 3, 2023 Jasminka KalajdzicCourts Law
Howard M. Erichson & Ethan J. Leib,
Class Action Settlements as Contracts?, 102
N.C. L. Rev. __ (forthcoming 2023), available on
SSRN.
For the traditional civil proceduralist and legal ethicist, much of class action law is fitting a square peg in a round hole. Few of the principles or rules developed in the context of bilateral relationships apply neatly in representative litigation. For example, rules of conduct are ill-suited to the sui generis relationship class attorneys enjoy with the lead plaintiff and with the class. Cy près remedies common in class settlements provide for relief – payment to a non-party – that the underlying substantive law does not authorize. The presence of absent class members complicates the doctrine of standing, while the opt-out system disrupts expectations of basic due process rights. Add to this list the class action settlement. Its unique nature has to date been undertheorized and underexplored, although the features that distinguish class actions from their two-party counterparts are more pronounced at settlement: a deal binds absent class members who had no power to instruct counsel and no say in the deal’s terms. In these circumstances, is a settlement agreement a “contract” and should disputes arising from the settlement be resolved by resort to strict contract law principles?
Howard Erichson and Ethan Leib challenge the prevailing paradigm of the class action settlement as a contract between parties. Their thesis is that a class settlement agreement is a particular sort of contract and a unique kind of court judgment; it requires its own interpretive framework, one that borrows from the law of contracts and the law of judgments. Their distinctive approach respects the role of the certifying court as protector of class members’ interests in a way that blind adherence to settlement-as-contract ignores. Continue reading "Breaching the Contract Paradigm"
Nov 2, 2023 Omri Ben-ShaharContracts
David A. Hoffman and Yonathan A. Arbel,
Generative Interpretation, 99
N.Y.U L. Rev. __ (forthcoming, 2024); U of Penn L. Sch., Pub. L. Rsch. Paper, available at
SSRN (Aug. 1, 2023).
The plain meaning rule is out of favor with contracts academia. There is so little to say about it, nothing to theorize, and even less to test students about. Plain meaning? It’s such an unintelligent concept. Scriptures, poems, literature, love letters—they all have subtle meanings that can be imagined and read between the lines. Why not contracts?
Luckily, California rescued the contract world from that slight. Its courts rejected the plain meaning rule! We too now have a job to do: speculate about the meaning of contracts. California and Foucault told us that there is no such thing as plain meaning of words, and so the meaning of the contract must be teased out not merely from the text but also from the context of the agreement. The so-called contextualist interpretation approach liberated our profession to develop surgical interpretation tools that advance various conceptions of what-the-parties-must-have-truly-intended. Precontractual conversations, relational norms, the parties’ interests and expectations, what not. So much richness beneath the text. Aside from a few dissenters, the contracts professoriate either ignores or deplores the plain meaning rule.
There is only one problem with this state of the art: it is divorced from the state of the law. American courts, by and large, regularly apply the plain meaning rule to interpret contracts. Words, courts strangely think, have meanings, and when common sense is not sufficient to discover that meaning dictionaries and treatises can help. Continue reading "Towards the End of Normative Interpretation of Contracts"
Nov 1, 2023 Thomas J. McSweeneyLegal History
Lorren Eldridge’s Law and the Medieval Village Community is a call to historians of English law to return to the study of local, community-generated customary law, a type of law that governed the lives of many of England’s people, but that has been pushed to the periphery in favor of the study of the common law. Eldridge presents the medieval village as a space where customary law was generated, a customary law that, while it was informed by the common law made in the king’s courts, differed from it in important respects.
Law and the Medieval Village Community is as much about the historiography of the village community as it is about its history, and Eldridge has a knack for making historical debate exciting and relevant. She tells the story of how scholars of English law, who once saw the village community as central to the history of English law (and indeed to contemporary legal theory), turned away from the village in the early twentieth century in favor of the records of the central royal courts. This shift proved enduring and has yielded a distorted picture of English law, generating a historiography that focuses on elite spaces and elite litigation to the exclusion of the law that was used and created in local communities. Continue reading "Looking Beyond the Common Law"
Oct 31, 2023 Deepa Das AcevedoWork Law
Employee Retirement Income Security Act (ERISA) attorneys and scholars are an enthusiastic bunch. They love (love) talking all things benefits, whether this means arcane legislative history or the minutiae of healthcare plans. ERISA folk especially love their statute, even though almost everyone else considers it too dry and far too complex—and even though they themselves often affectionately poke at it with names like the Every Ridiculous Idea Since Adam law. (This was my own ERISA professor’s personal favorite.)
Occasionally, as with Brendan Maher’s recent article, Pro-Choice Plans, the reason for all this enthusiasm becomes eye-wateringly obvious. ERISA affects aspects of life that everyone cares about deeply: what happens when we get sick, and what happens when we get old. As Maher points out, this means it also—if indirectly—affects abortion access. Continue reading "Know Your… Benefits"
Oct 30, 2023 Robert GordonLegal Profession
Michael Ariens has long been one of the best informed and most acute observers of the legal profession. His ambitious new book surveys the ethics of American lawyers from the Revolution to the present day. More precisely, it is a history of how lawyers talked about ethics in the nineteenth century, and of how lawyers and their organized associations, especially the American Bar Association, have tried to regulate ethics in the twentieth and twenty-first centuries. On these topics Ariens is extremely well-informed, and his footnotes are a comprehensive treasure trove of primary materials. He seems to have found almost every speech, tract, report, or regulation uttered by lawyers on the ethical principles that ought to define their professional identity, and on how lawyers actually live up, or fail to live up, to those principles.
Lawyers have always claimed to follow professional principles superior to their own commercial self-interest. In the early 19th century, Ariens says, American lawyers asserted that gentlemanly ideals of “honor” kept them from abusing clients or the public interest. Gradually talk of honor faded out, to be replaced with the more Protestant notion of individual “conscience” as the restraint on self-serving conduct. Lawyers deflected criticism onto scapegoats, blaming abuses such as meritless lawsuits or forensic trickery or defrauding clients on “pettifoggers”. Writers on legal ethics like David Hoffmann and George Sharswood advised lawyers to limit their zeal to avoid assisting injustice, deploring Lord Brougham’s famous advice that a lawyer must further a client’s interest to the utmost, heedless of harms to opposing interests or third parties. But, says Ariens, such strictures “did not match reality.” (P. 63). Lawyers argued they could be disbarred for bad behavior, but this rarely happened; a lawyer disbarred by one court could appear before another; and “neither the judiciary nor practicing lawyers showed much interest in disbarring venal lawyers to protect either the public or the profession’s claim to integrity during this time.” (P. 29). The public might be made uneasy by seeing famous advocates like Rufus Choate use courtroom wizardry to secure the acquittals of robbers and murderers, but lawyers assured their critics that such results were the unavoidable costs of assuring due process for everyone. Continue reading "A New History of Legal Ethics"
Oct 27, 2023 Anne Joseph O'ConnellAdministrative Law
Nicholas R. Bednar & David E. Lewis,
Presidential Investment in the Administrative State, Am. Pol. Sci. Rev., available at
Cambridge University Press (Mar. 13, 2023).
Presidents are quite popular in administrative law these days, from Elena Kagan’s classic article, Presidential Administration, to the Supreme Court’s fixation on presidential control in its growing Appointments Clause and removal docket. As legal scholars dissect and debate the doctrinal and normative implications of presidential attention in agency decision making, we could benefit from knowing more about how that involvement actually plays out.
In Presidential Investment in the Administrative State, Nicholas Bednar and David Lewis provide critical empirical lessons for how Presidents invest strategically (or not) in agency capacity, which encompasses “the ability of an agency to perform the tasks delegated to it.” They show that Presidents are not simply public administration savants—trying only “to ensure effective policy implementation and avoid failure.” And they demonstrate that Presidents are not pure partisans—“work[ing] to increase capacity in agencies implementing policies the president likes and decrease capacity in agencies implementing policies the president opposes.” The lessons are messier. Continue reading "Agency Capacity"
Oct 26, 2023 Phyllis C. TaiteTrusts & Estates
Brenda D. Gibson,
The Heirs’ Property: Racial Caste Origins & Systemic Effects in the Black Community, __
CUNY L. Rev. __, (forthcoming, 2023) available at
SSRN (Aug. 31, 2022).
Professor Gibson provides a unique look at Black land loss through heirs’ property in the Low Country, an area located on the southern tip of South Carolina which includes the Sea Islands. Her paper concludes that “heirs’ property is more a product of the deeply entrenched racial caste system of racist governmental processes and laws that have militated against Black land ownership and wealth.” As such, she indicates that landownership has been a source of wealth mobility for some, but that intestacy succession to property has caused wealth to decline in the Low Country, disproportionately for Black landowners.
After a brief historical review of the obstacles and hardships of Black landownership since the Reconstruction era, Professor Gibson analyzes how systemic racism has impacted Black land loss in the South, specifically in the Low Country. She begins by explaining how farming was the primary source of income for many Black landowners in Low Country. By the end of the 20th century, however, Black farmers had lost over ninety percent of their land. She attributed these substantial losses to government action, commercial developers, and the complicated nature of heirs’ property. Continue reading "A Path for Wealth and Cultural Restoration for the Gullah-Geechee Residents of the Low Country"
Oct 25, 2023 Emily SatterthwaiteTax Law
Following the January release of a groundbreaking study by Hadi Elzayn, Robin Fisher, Jacob Goldin, Thomas Hertz, Daniel E. Ho, Arun Ramesh, and Evelyn Smith and the resulting media, Congressional, and IRS attention, it is now well-known that Black taxpayers are audited at rates three to five times the rates of non-Black taxpayers. The audit study is a landmark both for its results (which contradict past IRS statements) and also for its novel methodology, which uses individually-estimated taxpayer race probabilities to obtain informative bounds on the racial audit rate disparity. In addition to illuminating problematic patterns in current IRS audit selection procedures, the study’s methodology offers promise for the future in investigating other race-based patterns in tax enforcement.
In what non-audit enforcement areas might such patterns arise? Here is where the prescient work of Jeremy Bearer-Friend (as cited in the audit study, P. 41) comes in, building on the work of other scholars working at the intersection of race and tax. In “Colorblind Tax Enforcement,” Bearer-Friend refutes on first principles the now-debunked claim that because the IRS does not collect race data, it cannot discriminate by race when enforcing tax laws. He points out that, for IRS agents, making inferences about the race of a taxpayer on the basis of the information provided on the return (names of taxpayer, spouse, and children, address including zip code, family structure, and occupation) is plausible and probable: “[e]ach of these datapoints can lead to inferences of racial identity in the mind of the relevant IRS personnel, with the combination of data points creating a stronger likelihood of inference” (P. 19). Moreover, at many points in the enforcement process there are telephonic or in-person conferences that allow for further racial inferences. Continue reading "Beyond Audits: Investigating the Role of Race in Various Tax Enforcement Settings"
Oct 24, 2023 Ronen AvrahamTorts
Maytal Gilboa, Yotam Kaplan & Roee Sarel,
Climate Change as Unjust Enrichment, __
Geo. L.J. __ (forthcoming), available at
SSRN (July 6, 2023).
When considering the essence of law, it becomes evident that its fundamental purpose is to safeguard our safety and well-being. However, amidst the many challenges facing humanity, the law has fallen short in shielding us from one of the gravest threats to our lives and way of life – climate change. In a new thought-provoking piece, Climate Change as Unjust Enrichment, Maytal Gilboa, Yotam Kaplan, and Roee Sarel (hereafter referred to as GKS) offer a glimmer of hope. Where international treaties, regulations, and tort law have faltered, GKS propose harnessing the oft-forgotten doctrine of unjust enrichment as a means to rescue us from the dire consequences of climate change.
Climate change, aptly dubbed the “super wicked” problem, presents an overwhelming challenge. Its impacts include severe food crises, water scarcity, rampant infections, increased rainfall and flooding, and escalated violence, among other dire consequences. Moreover, the complex nature of climate change’s harms, distributed across vast populations and with long-term effects, poses formidable barriers to effective intervention. Continue reading "Just Unjust Enrichment"
Oct 23, 2023 Rebecca TushnetTechnology Law
Jasmin Brieske & Alexander Peukert,
Coming into Force, Not Coming into Effect? The Impact of the German Implementation of Art. 17 CDSM Directive on Selected Online Platforms, CREATe Working Paper, available at
SSRN (Jan. 25, 2022).
The European Union has been busy updating its regulation of online services in a variety of ways. This includes a recent directive that directs Member States to institute a new online copyright regime. Services that host user-generated content will be required to keep unlicensed works off of their sites, and also required to negotiate with copyright owner groups for licensing agreements. In essence, other hosting sites will have to behave like YouTube in its deals with major music and film labels. This new regime was imposed by what’s known as Art. 17 of the 2019 Directive on Copyright in the Digital Single Market (CDSM Directive). (The Digital Services Act further complicates the picture because it overlaps with the laws required by Art. 17 and adds to their requirements, but I will focus here on Art. 17.)
Unlike its content-agnostic counterpart the Digital Services Act, the copyright-specific Art. 17 does not itself have the force of law; it requires transposition into national law, and different countries have taken different approaches to that transposition. Germany’s transposition has been one of the most ambitious and user-oriented. Brieske & Peukert’s working paper Coming into Force, Not Coming into Effect? The Impact of the German Implementation of Art. 17 CDSM Directive on Selected Online Platforms explores how the new German regime affected—and didn’t affect—the copyright-related policies and practices of major sites. As it turns out, neither the user protections nor the rightsowner protections seem to have changed the practices of the big sites—giving more evidence that the major impact will be on smaller sites that may not even have had the problems that purportedly justified this new licensing-first regime. The piece is an important reminder that implementation is everything: New legislation is exciting and produces lots of work for lawyers, but that doesn’t mean it produces wider change. Continue reading "Best Laid Plans: The Challenges of Implementing Article 17"
