Oct 6, 2023 Bill BrattonCorporate Law
We in business law tend to be creatures of the law reviews. Good new books don’t come along very often. When one does appear, it is doubly welcome. A History of Securities Law in the Supreme Court, by A.C. Pritchard and Robert B. Thompson, recently published by Oxford Press, is that rare, good book. It is absolutely, doubly welcome.
Pritchard and Thompson present every one of what turns out to be 134 cases. For the reader it is a bit like taking a law school course—the material goes case by case. This may not sound enticing, but please believe me when I say that it is, for the authors are master teachers. It is just that the medium is the written word rather than an oral presentation. Excellent writing is called for and Pritchard and Thompson answer the call. This book is fun to read. Continue reading "Securities at the Supremes"
Oct 5, 2023 Robert HillmanContracts
Yehonatan Givati, Yotam Kaplan, and Yair Listokin,
Excuse 2.0, __
Cornell L. Rev ___ (forthcoming), available at
SSRN (June 1, 2023).
Excuse 2.0 is worth a careful read. The article supports contract law’s current treatment of the impossibility, impracticability and frustration doctrines despite the authors’ conclusion that these excuse doctrines are “notoriously vague.” In fact, according to the authors, this is exactly what we want and should expect of law that excuses promisors from their contract obligations in the face of what the authors refer to as systematic risk. Although the authors concede that “[m]ost risks fall on a spectrum between purely idiosyncratic and purely systematic,” (P. 21) the latter risk, the authors explain, affects populations, such as pandemics and wars whereas idiosyncratic risk impacts only individuals, such as the risk of fire to a promisor’s premises. An important thesis of the article is that in systematic risk situations ambiguous excuse law promotes compromise and loss sharing that lessens economic havoc in the long-term, such as bankruptcies.
The authors reason that when promisors cannot perform “through no fault of their own,” (P. 28) in the face of uninsurable risks such as a pandemic, excuse doctrine reduces the costs of breakdown to both parties, neither of which can bear the risk on their own. If the law that determines obligations of the parties in such situations is ambiguous, the authors argue, renegotiation, not lawsuits, is the likely result. “In such a situation, the parties will probably settle, to avoid the uncertainty associated with trial, and the costly process of litigation…[T]he payment they will agree on in their settlement…will reflect the uncertainty of the legal outcome.” (P. 33.) Continue reading "Excuse 2.0: A Macroeconomic Model of Contract Excuse"
Oct 4, 2023 Christopher WalkerAdministrative Law
Emily Chertoff,
Violence in the Administrative State, 112
Calif. L. Rev. __ (forthcoming 2024), available at
SSRN.
With all the changes swirling in administrative law, one trend seems to be getting less attention than perhaps it should: the death of regulatory exceptionalism in administrative law. For decades, many regulatory fields—such as tax, intellectual property, and antitrust—viewed themselves as exceptional, such that the normal rules of the road in administrative law do not apply. The Supreme Court and the lower courts have increasingly rejected such exceptionalism in many regulatory contexts, emphasizing that the Administrative Procedure Act (APA) and related administrative law doctrines are the default rules unless Congress has clearly chosen to depart from them by statute in a particular regulatory context.
Immigration exceptionalism, however, remains a puzzle. Not because administrative law does not apply. It does. But, as Jill Family has detailed, Congress has departed from the APA defaults in many respects. As a constitutional and interpretive matter, moreover, immigration regulation operates against the backdrop of the plenary power doctrine. As more administrative law scholars have turned to immigration law (and vice versa), deeper insights have emerged to better situate immigration regulation in the modern administrative state. Immigration law scholars and newer voices in administrative law have played a critical role in moving the field forward. Here, I want to highlight one such newer voice, Emily Chertoff, whose article Violence in the Administrative State makes a promising contribution. Continue reading "Revisiting Immigration Exceptionalism in Administrative Law"
Oct 3, 2023 Charles A. SullivanWork Law
Camilla A. Hrdy & Christopher B. Seaman,
Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, 133
Yale L. J. __ (forthcoming 2023), available at
SSRN (Mar. 15, 2023).
Over the last decade or so, there have been remarkable developments in the law’s approach to employee noncompetition agreements (NCAs). After years of little movement, many states have recently restricted noncompetes (for example, by barring them entirely for lower-compensated workers), while a few jurisdictions (including Massachusetts, D.C., and Minnesota) have taken more dramatic steps to rein in their use. And further change may be in the offing, including the Uniform Law Commission’s (ULC) proposed Uniform Restrictive Employment Agreement Act, the Federal Trade Commission’s proposed rulemaking that would largely bar NCAs, and the National Labor Relations Board’s challenge to using noncompetes for covered workers.
But not everyone realizes that these changes may reach contract terms beyond those formally phrased in terms of restricting a worker’s post-employment competition. Indeed, both the ULC and the FTC actions would reach contracts framed as barring disclosure of confidential information when such an agreement has effects similar to those of a noncompete. Continue reading "Turning NDAs into NCAs"
Oct 2, 2023 Anders WalkerLegal History
Pekka Hämäläinen has written a startling book. Building on his earlier histories of the Lakota and Comanche, Hämäläinen’s Indigenous Continent tells the entire saga of Native America, recasting it not as a story of dispossession and defeat, but resistance and – amazingly – resurgence. The story is counterintuitive, a story not simply of white genocide and plunder but also of Indian power and influence, a story of a complicated group of peoples who fought against Europeans for over 400 years, and fight on today.
Beginning his story in 11,000 BC, Hämäläinen traces Native Americans back to Asia, showing how large groups of people left for North America by traveling across land bridges and along kelp highways. Such people formed large, centralized civilizations in places like the Colorado Plateau and the Mississippi River Valley, fostering large-scale agriculture, developing political/religious elites, and constructing massive monuments.
Then came climate change. Continue reading "Complicated Continent: Pekka Hämäläinen and the History of Native America"
Sep 29, 2023 Gregory KeatingTorts
In On Rawlsian Contractualism and the Private Law, David Blankfein-Tabachnick and Kevin Kordana, Professors at Michigan State and Virginia Law Schools, respectively, argue that we are witnessing a fundamental shift in the way that legal scholars think about private law. “[N]ot long ago,” they tell us, “the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. . .. The conventional, indeed, the nearly universal view of Rawlsianism—the overwhelmingly dominant theory of liberalism and distributive justice—was that the private law lies beyond the scope of Rawls’s two principles of justice.” (P. 1657.) Now, private law scholars—in tort, but also in contract—are coming to think that these bodies of law are parts of what Rawls called “the basic structure of society.” Or so Blankfein-Tabachnick and Kordana argue, citing to, and drawing upon, the work of a dozen or so legal scholars, themselves (and myself) included.
Their paper makes an important contribution because the shift that they spot and argue for promises to reorient private law theory in a valuable way. Insisting on the “privateness” of private law threatens to trivialize fundamental legal fields. Blankfein-Tabachnick and Kordana are quite right to insist that contract, property, and tort engage fundamental questions of power and justice and that theories of private law must engage these questions. And turning private law theory in this direction might breed fruitful interaction with very different kinds of tort scholarship, such as the “social justice tort theory,” championed by Martha Chamallas and Sarah Swan. That scholarship, too, insists that tort law articulates basic terms of social interaction and therefore does (or fails to do) “social justice.” Continue reading "Shifting the Paradigm in Private Law Theory"
Sep 28, 2023 Rebecca CrootofTechnology Law
Jennifer Cobbe, Michael Veale & Jatinder Singh,
Understanding Accountability in Algorithmic Supply Chains (May 22, 2023), available at
Arxiv.
Most proposed regulations for algorithmic accountability mechanisms have a common feature: they assume that there is a regulatory target with the power to control the system’s inputs, structure, or outputs. Maybe it’s the algorithm’s creator, or the vendor, or the deployer—but surely there’s an entity that can be held to account!
In Understanding Accountability in Algorithmic Supply Chains, Jennifer Cobbe, Michael Veale, and Jatinder Singh upend that assumption. In ten tightly but accessibly written pages, they detail how there is often no single entity that may be legitimately held accountable for an algorithmic conclusion. This is partially due to the “many hands” problem that has already spurred arguments for strict liability or enterprise liability for algorithmic systems. But designing a governance regime is also difficult, the authors argue, because of how algorithmic systems are structured. The authors use the “supply chain” metaphor to capture the fact that these systems are comprised of multiple actors with shifting interdependencies and shared control, contributing varied data and changing elements of the infrastructure, all while data flows in multiple directions simultaneously. The difficulty in regulating algorithmic systems is not just that it is hard to identify which of many entities is the cheapest cost avoider or the one that can be fairly held accountable; instead, it may be impossible to identify which entity or even which combination of entities is causally responsible for any given output. Continue reading "Algorithmic Accountability is Even Harder Than You Thought"
Sep 27, 2023 Daniel ShaviroTax Law
Bradford DeLong’s career opus, Slouching Towards Utopia, is a very long – although, in my view, consistently illuminating and entertaining – work of economic history that only very briefly, for a few pages here and there, touches on the history of taxation. Why, then, do I regard it as offering a highly suitable subject for a Jotwell Tax column?
The broader answer to this question is that historical context is vital to understanding tax (like other) institutions and ideas and yet often is ignored, other than by tax historians. The narrower answer, illustrating this broad proposition, pertains to the particular context of the great intellectual shifts that have occurred over the last thirty-plus years, not just in legal academic thinking, including in tax, but in American intellectual and political life more generally. Continue reading "The Rise (And Fall?) of Neoliberalism In Tax"
Sep 26, 2023 Serena WilliamsProperty
Brandon M. Weiss,
Corporate Consolidation of Rental Housing & The Case for National Rent Stabilization, 101
Wash. U. L.R. __ (forthcoming, 2023), available at
SSRN (May 27, 2023).
Professor Brandon Weiss in his article, Corporate Consolidation of Rental Housing & The Case for National Rent Stabilization, posits that the increasing ownership of rental units by corporate landlords will only worsen an uncertain rental market, with more tenants threatened with eviction or living in poor quality units. As one policy option, he argues for federal incentives to promote the passage of rent stabilization laws.
When signing a lease, a tenant may initially believe that a landlord is a landlord – that it does not matter whether the rental unit is owned by an individual or by a corporate entity. The rent must be paid regardless of who is receiving it. However, that perception may not be accurate. Corporate landlords may more often seek to defer maintenance, raise the rent, or evict tenants. Continue reading "A Different Kind of Landlord"
Sep 25, 2023 Jill FamilyLex
Hundreds of thousands of individuals relied on the Deferred Action for Childhood Arrivals (DACA) policy in making major life decisions, such as where to live and whether to invest in higher education. The policy promised some without legal immigration status a chance to remain in the United States with work authorization. If certain criteria were met, the Department of Homeland Security would consider whether to grant a type of prosecutorial discretion called deferred action. DACA was created through a guidance memorandum. Then Secretary of Homeland Security Janet Napolitano issued a 2012 memo to her department explaining the details of the policy, and then the agency implemented it. In 2017, the Trump administration attempted to end DACA by issuing another memo. In 2020, the Supreme Court concluded that President Trump’s attempt to end DACA was unlawful. The Court reached that conclusion in part because the Trump administration failed to adequately consider the reliance interests of DACA beneficiaries in determining to end the policy.
In her article Administrative Reliance, Professor Damon-Feng dives into the reliance phenomenon in administrative law. One administration develops a policy, many rely on it, and then the next administration changes course. Should reliance interests matter when courts review the change of course? If so, how much, and why? Professor Damon-Feng concludes, based on her examination of the implicated values, that the Supreme Court should adopt a more purposeful and disciplined approach to considering reliance interests. Continue reading "Making Judicial Review of Reliance More Reliable"
