Jul 31, 2023 Tom C.W. LinCorporate Law
Pamela Foohey & Christopher K. Odinet,
Silencing Litigation Through Bankruptcy, 109
Va. L. Rev. __ (forthcoming 2023), available at
SSRN (February 20, 2023).
It is often said that crisis reveals character. In adversity, an individual’s values and integrity are tested and brought into the light – to shrink or steel in the crucible of calamity and conflict. Perhaps the same can be said of corporations and corporate governance in crisis.
In a forthcoming article, Silencing Litigation Through Bankruptcy, Professors Pamela Foohey and Christopher Odinet offer an insightful, critical view of how some corporations have responded to crisis by using bankruptcy law to silence survivors, exacerbate injuries, and hurt the public in the face of significant litigation. Through a thoughtful examination of businesses and other organizations using the bankruptcy code as a sword to cruelly suppress rather than a shield to carefully reorganize, the article makes a persuasive case for rethinking and reforming legal and business practices during crisis. In doing so, the article informs, expands, and challenges the ways one thinks about corporate governance. Continue reading "Litigation and Corporate Social Bankruptcy"
Jul 28, 2023 Aditi BagchiContracts
One might be tempted to think that status-based relationships were displaced by contract in modern societies, in the way that Henry Maine suggested over fifty years ago. However, it is now also understood that many specific kinds of relationships are governed by their own rules, even if some elements of voluntary agreement are present. For example, even if one chooses to get married and to marry a particular person, many of the surrounding rules are outside of the parties’ control. Employers and employees choose not only their contractual partners but also most of the critical terms of the employment relationship; but the state imposes a variety of mandatory terms and prohibits others. In these contexts, status-based rules sharply delimit the application of general contract rules. We have paid relatively less attention to how status informs the affirmative application of general contract law, even though there are a variety of doctrines internal to contract that apply “special rules” to tenants, consumers, insured, franchisees, and many others.
In his insightful recent article, Unifying Status and Contract, Kaiponanea Matsumura corrects this neglect. He shows that contract law is responsive to vulnerability in a variety of specific kinds of relationships, and not just ones that we associate with separate bodies of law. He offers illustrative detail on three kinds of relationships: cohabiting partners, contractors and subcontractors, and online service retailers and their customers. He shows how courts balance traditional contract-law considerations of morality and efficiency differently in each context. The most important facts about each relationship that inform special treatment are those that speak to the power balance between the parties. Continue reading "Why Does Status Matter in Contract?"
Jul 27, 2023 Michael GreenJurisprudence
Fernanda Pirie’s Beyond Pluralism: A Descriptive Approach to Non-State Law offers a nuanced and well-reasoned assessment of the movement — among those we can call legal pluralists — to expand the concept of law to include non-state forms of social ordering. Legal pluralists are a heterogenous group and it is dangerous to make any generalizations. But Pirie has certainly identified a theme among some legal pluralists. She has two main arguments, one critical and the other constructive.Her critical argument is that legal pluralists’ conceptual project is largely motivated by normative concerns — “to counter colonialism and its legacies, and to highlight ways in which states disregard the rights and interests of Indigenous people” — that are independent of the descriptive aims of legal theory, which is “simply to clarify what law is and does.” (P. 2.) Her constructive argument is to offer — as an alternative to the pluralists’ normative concept of law — her own descriptive concept, based on a sophisticated method of conceptual analysis. Like the pluralists’ concept, her concept encompasses non-state law, but in a more limited fashion.
Let me start by offering my own (admittedly lengthy) version of the critical argument, before adding her nuance. The law of the United States has done a bad job accommodating Native American forms of social ordering. But broadening the concept of law won’t change American law practices. All it will do is redescribe as law the forms of social ordering that American law practices ignore. Indeed, there is reason to believe that conceptual reform would frustrate the pluralists’ goals. To reform American law — or even to identify it as a set of standards to be ignored or resisted — one needs to focus on what is, in fact, American law. The pluralists’ broader concept of law interferes with that focus. Continue reading "Normative and Descriptive Legal Pluralism"
Jul 26, 2023 Jodi ShortAdministrative Law
Jed H. Shugerman,
Freehold Offices vs. “Despotic Displacement”: Why Article II “Executive Power” Did Not Include Removal (Jul. 25, 2023) available at
SSRN.
Originalist scholars have been hard at work to backfill justifications for the Roberts Court’s pronouncement in Seila Law of an indefeasible presidential power to remove executive branch officers (a prominent recent example is Aditya Bamzai and Saikrishna Bangalore Prakash, The Executive Power of Removal). Unable to point to constitutional language authorizing (much less requiring) presidential removal, purported originalists have located this power provisionally in Article II’s broad grant of “The executive Power” to the President based in part on the argument that executive power, as understood by the Founders, undeniably encompasses the power to remove executive officers at will.
Into this consequential debate wades Jed Shugerman, with Freehold Offices vs. “Despotic Displacement”: Why Article II “Executive Power” Did Not Include Removal. Shugerman persuasively demonstrates that there was no general rule of indefeasible executive removal power prior to and at the founding. Instead, there was a mix of office types—from cabinet-level officers who served at the pleasure of the king, to patronage offices usually held at the pleasure of the patron officer, to offices that were bought and sold as unremovable freehold property (a practice known as venality). The article itself is a tour de force, presenting extensive evidence to support this office hybridity claim and responding point-by-point to existing and anticipated counterarguments by unitary executive theorists. And it is but one installment in a larger project to debunk unitary/originalist claims about the President’s removal power (which also includes The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity and an extensive Appendix to this article cataloguing Unitary Executive Theorists’ misuse of historical sources). This brief post will touch on only a sliver of Shugerman’s intricate argument and extensive evidence, which I encourage all to read for themselves. Continue reading "In Search of the Presidential Removal Power: What Venality (Offices as Property) Tells Us About the Constitutional Dogs that Did Not Bark and the Howling Hounds of Bureaucratic Accountability"
Jul 25, 2023 Natalie RamTechnology Law
In April 2023, the State of Idaho enacted legislation making it a felony to help a minor obtain an abortion (or medication to induce abortion) by “recruiting, harboring, or transporting the pregnant minor within this state.” With more than a third of U.S. states having severely restricted or outright prohibited access to abortion within state borders, Idaho has now turned its attention to making it more difficult for at least some of its citizens to travel out of state to obtain abortion care. The legislation explicitly rejects as a defense that the provider of abortion services is in another state. Abortion care is not the only type of healthcare service that has raised interjurisdictional conflicts. As of April 2023, at least thirteen states have banned some or all gender affirming care for minors. In some states, government officials have attempted to define gender affirming care as child abuse, which would arguably support removing resident children from parental custody even if the contested care were sought beyond the state’s borders.
In response, other states have enacted legislation intended to shield patients, providers, and others who facilitate care that is lawful within that state from being prosecuted or sued elsewhere. Connecticut, which was the first state to enact such protections, largely prohibits healthcare providers from turning over abortion records in out of state legal proceedings without the patient’s explicit consent and bars state judicial authorities from issuing subpoenas related to reproductive services unless there is an equivalent cause of action under Connecticut law.
Yet, as Carly Zubrzycki demonstrates in her new article The Abortion Interoperability Trap, laws like Connecticut’s “miss[] a crucial piece of the puzzle: medical records are widely shared across state lines to facilitate patient care.” As Zubrzycki explains, these new state laws designed to protect reproductive and gender affirming care “are generally limited to preventing providers and other covered parties from directly sharing information in formal proceedings.” They do not prevent, and indeed often explicitly permit, sharing of patient records across state lines for purposes of patient care. The result is that these statutes largely fail to provide the protection they tout. “The reason is simple: in-state providers subject to a safe-haven law will, in the ordinary course of business as their patients seek care in other states, share medical records with out-of-state providers who are not subject to that law and who can therefore easily be asked to hand over the records in litigation.” This gap between what abortion-protective laws promise and what they genuinely offer is what Zubrzycki calls abortion’s “interoperability trap.” In this timely and insightful article, Zubrzycki offers not just a diagnosis but refreshingly practical solutions. Her work is already having a practical and important impact. Continue reading "Generating Genuine Data Protection"
Jul 24, 2023 Nicole Stelle GarnettProperty
Patrick E. Reidy, C.S.C.,
Sacred Easements, __
Va. L. Rev. __ (forthcoming), available at
SSRN (June 26, 2023).
Patrick Reidy’s forthcoming article, Sacred Easements, explores whether private law—and in particular the law of property, rather than public law, might provide a more effective means of protecting indigenous sacred sites. In particular, he explores whether tribes employ the law of servitudes—specifically easements—and common law rules respecting custom to secure access to (and protection) of their sacred sites.
Native Americans’ efforts to employ the traditional public law tools of religious liberty protection—for example, the First Amendment’s Free Exercise Clause, the Religious Freedom Restoration Act, and the Religious Land Use and Institutionalized Persons Act—to shield their sacred sites from desecration usually fall short. Continue reading "Can Property Law Protect Indigenous Sacred Sites?"
Jul 21, 2023 Maximo LangerCriminal Law
Trevor George Gardner, Rethinking Racial Equity in Criminal Procedure, 171 U. Pa. L. Rev. __ (forthcoming 2023).
After decades of a one-way ratchet towards more punitive criminal law policies that disproportionality punished African Americans, reform and transformative agendas have gained some momentum in the United States. Between 2010 and 2020 the combined state and federal imprisonment rate decreased 28%. After many years of having the largest incarceration per capita in the world, as of January 2023, the United States ranks fifth in the world, according to some sources. In 2007, the incarceration rate per 100,000 of Black people was 1,143, while in 2020 it was 662. This reduction of 42% was larger than the 35% reduction for all groups in the same period.
However, as Professor Gardner documents in his article, Rethinking Racial Equity in Criminal Procedure, deep racial disparities in the American criminal legal system remain. African Americans continue to be killed by the police, stopped, arrested, jailed, and incarcerated at higher rates than white Americans. In his piece, Gardner critically and lucidly discusses the two main ongoing efforts to advance racial equity within criminal procedures: the reform platform and the abolition platform. Continue reading "Racial Equity, Reform, and Abolition in the American Criminal Legal System"
Jul 20, 2023 Reid WeisbordTrusts & Estates
Some cultures revere their elders. Ours does not. Ageism is illegal in certain contexts but remains far too prevalent in modern discourse, often imbued with sexism. Elder abuse and financial exploitation of older persons are on the rise. Even respected voices from the medical community have begun to question the social utility of longevity: At age 57, bioethicist Ezekiel Emmanuel controversially declared that he would refuse life-extending medical treatment in his elder years because he does not believe most people “continue to be active and engaged and actually creative past 75.” Dr. Emmanuel acknowledged the existence of outliers, but his gloomy claim about elder productivity is certainly contestable. Surely you can think of senior “outliers” in your own life. My mother, for instance, began practicing law in 1970 and still enjoys maintaining a full caseload with enough work to overwhelm any first-year associate. I clerked for similarly inspirational federal judges who heard and continue to hear cases in their late 80s. But even conceding that productivity declines with age, I hope most readers would agree that respect, dignity, and fairness under the law should never hinge on one’s economic or creative output.
In Family Law for the One-Hundred-Year Life, Naomi Cahn, Clare Huntington, and Elizabeth Scott cast away tired platitudes about the elderly by presenting a bold new vision for autonomy and care in old age. The Article breaks new ground by unflinchingly confronting family law’s failure to serve the needs and preferences of elderly populations, including the growing number of centenarians. The authors argue that “the fundamental problem—conceptually and practically—is that family law is designed for younger people, facilitating child rearing and helping spouses pool resources to build a life together.” That design, in turn, overlooks critical family dynamics that change in old age, i.e., when parent-child caregiving roles reverse, when older persons spend down their savings rather than accumulate new wealth, and when single seniors enter new companionships with estate plans that would be frustrated by marital defaults that presume “financial interdependence.” Continue reading "Inheritance Law for Centenarians"
Jul 19, 2023 Michael C. DuffWork Law
Stephanie Bornstein’s illuminating article, Confronting the Racial Pay Gap, performs an almost shockingly useful math exercise for legal theorists. First, Professor Bornstein recounts statistics on the racial disparities between White families and families of color. “Recent estimates show the median net worth of an average White family is nearly ten times that of an average Black family” (in 2016, $171,000 compared to $17,100) “and nearly seven times that of the average Latinx family” (in 2019, $142,180 as compared to $20,765). (P. 1405.) She observes that “despite gains in the perceived social and economic status of Black and Latinx Americans, racial wealth gaps are worse than they were thirty years ago.” (P. 1416.)
Professor Bornstein then highlights the astounding details of the racial pay gap. Using the metric of comparing only workers who work full-time, year-round, in 2019, the average Black worker earned 73.5 cents and the average Latinx worker earned 74.6 cents on the dollar to the average White worker. While there was some improvement prior to 2000, these racial pay gaps are now larger than they were four decades ago. Before commenting upon some of the underlying findings in this global result, I want to pause here to consider what these two conclusions tell us in particular about the economic dynamics at play in White/Black relations in the United States. Here comes the math. White families have ten times the wealth that Black families possess and the gap cannot be closed with wages. Continue reading "Taking Seriously the Implications of the Racial Wage Gap"
Jul 18, 2023 Christopher J. RobinetteTorts
Alexandra D. Lahav,
A Revisionist History of Products Liability (Jan. 9, 2023), available at
SSRN.
The story of the rise and fall of privity of contract in products liability is familiar to all torts scholars. William Prosser even labeled privity a “citadel” and wrote two significant law review articles discussing in martial terms the assault upon and fall of the citadel of privity. The story is simple. In an 1842 English case, Winterbottom v. Wright, Lord Abinger held that an injured passenger could not sue the manufacturer of the allegedly defective stagecoach that injured him because the coach was provided under contract to the passenger’s employer, not to him. Abinger invoked floodgates by reasoning, “There is no privity of contract between these parties…Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue…” Id. The rule migrated to the United States, where courts held that, even though Winterbottom sued in contract, privity prevented plaintiffs from recovering for products injuries in negligence cases. In 1916, however, Judge Cardozo in MacPherson v. Buick Motor Co. ended the reign of privity by holding that a plaintiff injured by an allegedly defective automobile that he purchased from a retailer could sue the manufacturer directly.
But the story is false. Such is the argument of Professor Alexandra Lahav in her compelling new article. Instead, Lahav insists that the doctrinal rule for producers of injurious products in the United States in the nineteenth century was negligence liability. Continue reading "The Citadel as Sandcastle"
