Jul 5, 2023 Naomi R. CahnFamily Law
In 1997, New Line Cinema released the romantic drama Love Jones. The film was about two young professionals, their friends, and their lives in Chicago: Nia Long starred as Nina Mosley, a talented photographer, and Larenz Tate as Darius Lovehall, a newly-emerging poet. The writer/director (Theodore Witcher) wanted to “tell a love story . . . [t]here is a political agenda as well – to present young African American characters on screen that weren’t involved in some kind of social pathology.”
Sociologist Kris Marsh describes these characters as “young, educated Black professionals who have never been married, are child-free, and live alone or with unmarried non-romantic friends.” (P. 1.) The movie, Marsh observes, presented a “new face” for those who are Black and middle class (P. 7.), one that exists outside of the nuclear family paradigm. The movie title provides the demographic term for the group that Marsh studies in The Love Jones Cohort. They are Black, middle class, and SALA (single and living alone). While Marsh notes that “SALA” describes a type of household that is not limited to those in the middle class, and the Black middle class includes other family formations, the Love Jones Cohort brings the two concepts together. (P. 8.) Continue reading "Black, Single & Middle Class"
Jul 4, 2023 Andrea FreemanEquality
How did fast food become Black – and at what cost? Naa Oyo A. Kwate’s fascinating first book, Burgers in Blackface, introduced readers to the racist restaurants that dot the American landscape. Richard’s Restaurant and Slave Market, Mammy’s Cupboard, Coon Chicken Inn, and Sambo’s profited by providing safe spaces for white people to wax nostalgic about their ancestors’ history as enslavers. Some of these businesses continue to thrive after changes to their names and business models–or no changes at all. In her powerful second book, White Burgers, Black Cash: Fast Food from Black Exclusion to Exploitation, Kwate takes a deep dive into the intersection of racism and consumption, incorporating analyses of civil rights, corporate culture, health, marketing, law, and politics.
Kwate’s starting point is fast food’s origin story. As the most American of foods, fast food began as an institution created by and for white people. Modern associations between fast food and Blackness, symbolized by rappers and food swamps, where unhealthy food is plentiful but nutritious food is scarce, have overshadowed the industry’s racial history. The first fast food restaurants featured all-white serving staff catering to an exclusively white consumer base at “white utopias.” When fast food restaurants followed their white patrons to suburbs and sundown towns, which imposed curfews on Black people, their whiteness solidified. Yet, eventually, societal and market pressure to expand into Black neighborhoods forced an about-face on the industry. Now, most people think of fast food as the epitome of poor choice, not the apex of clean, wholesome food. Continue reading "Fast Food for Thought"
Jul 3, 2023 Christopher SloboginCriminal Law
One of my favorite article titles is The Deterrence Hypothesis and Picking Pockets at the Pickpocket’s Hanging, written by David A. Anderson. It has long been my intuition that, unless eyewitnesses or the police are nearby, most people actively contemplating crime are rarely deterred by the prospect of being caught and are virtually never deterred by marginal differences in the sentence they would receive if convicted. Anderson’s article reinforces that view. As Anderson’s title suggests, in merry old England, pickpockets thought they were so good at their trade they plied it even at the execution of one of their own. Anderson argues that the same dynamic applies today. Based on interviews with prisoners and a review of the literature, Anderson concludes that most violent criminals and the majority of all criminals “are impervious to harsher punishments because no feasible detection rate or punishment scheme would arrest the impelling forces behind their behaviors, which might include drugs, fight-or-flight responses, or irrational thought.” (P. 308.)
But that suggestion has not deterred(!) economists from continuing to focus on the optimal means of preventing crime. In The Economics of Crime: An Introduction to Rational Crime Analysis, Harold Winter, a Professor of Economics at Ohio University, provides a primer of the relevant literature. The opening chapter begins with a question that brings home the importance of economic analysis even if one is predisposed to discount the influence of premeditated cost-benefit calculations on putative criminals. Winter asks, Would you want to live in a society where murders never happen? Winter’s own answer is a strong no: he would “much prefer” (emphasis his) to live in a society in which murders occur. The benefits of a murder-free society would be far outweighed by two costs: the cost—in terms of infringements on freedom and privacy—of an all-out effort to stop homicides and the cost—in terms of diverted resources—to other important societal goals if such an effort were made. Echoing famed economics scholar Gary Becker, Winter suggests that a full cost-benefit calculation may even require factoring in the benefit of crime to the criminal. Overdeterrence can be just as costly as underdeterrence. Continue reading "The Rationality of Criminality"
Jun 30, 2023 Joan MacLeod HeminwayCorporate Law
Public company law and practices in the United States are rooted in line-item and gap-filling disclosure regulation. Although the precise place and value of disclosure in business law and regulation has been—and (appropriately) continues to be—debated, mandatory disclosure has been a cornerstone of the U.S. federal securities laws applying to public companies since the enactment of the Securities Act of 1933. Together with liability (including antifraud) provisions and substantive regulation, mandatory disclosure rules have been one of the three core regulatory tools employed at the federal level to promote capital formation and fair, honest markets for securities, while at the same time providing core protections for investors.
At its core, Lisa Fairfax’s Dynamic Disclosure: An Exposé on the Mythical Divide Between Voluntary and Mandatory ESG Disclosure embraces mandatory disclosure rules in the spirit in which they have been enacted and employed in U.S. federal securities regulation. The article also, however, articulates the independent and cooperative value of voluntary disclosure as an important piece of the regulatory puzzle. In essence, Fairfax suggests that “the modern publicness of corporate information has eroded the walls between voluntary and mandated disclosure, making it impossible not to consider voluntary disclosure as an integral aspect of mandated disclosure and the overall disclosure regime in which corporations operate.” Importantly, Fairfax illustrates this proposition in the context of one of the most hotly contended areas of current regulatory debate: ESG (environmental, social, and governance) disclosures, including the U.S. Securities and Exchange Commission’s climate change disclosure proposal. Her insightful and diplomatic treatment of the subject matter is a breath of fresh air in ongoing debates about both the regulation of ESG disclosures specifically and mandatory disclosure as a component of securities regulation more generally. Continue reading "Toward A Non-Binary Vision of Disclosure Regulation"
Jun 29, 2023 Ezra RosserLexPoverty Law
Michelle Wilde Anderson’s The Fight to Save the Town: Reimagining Discarded America is worth reading for its optimistic approach to the challenges facing poor communities. Governments in such communities are often beset by significant legal and structural limitations that make it hard for them to provide even basic services to poor residents. With government programs related to poverty largely forced into retreat since the War on Poverty, the Affordable Care Act being the notable exception, it is easy for those who care about how the government responds to poverty to fall into despair. Poverty law offers little solace. The promise of Goldberg v. Kelly having long since faded, poverty law scholars are left searching for reasons for hope. The Fight to Save the Town provides glimmers of hope despite the legal and structural limitations facing struggling communities.
Anderson explains in the introduction that she aligns herself with the “‘call in,’ rather than ‘call out,’ tradition of social change,” (P. 31) which captures the book’s tone and approach. Portraits of community leaders and community organizations fighting back against urban decay and government decline form the heart of the book. But for all the heroism depicted in The Fight to Save the Town, readers are left—as they arguably should be—simultaneously inspired by the many examples of communities coming together and horrified by the fact that anti-government and anti-poor sentiment has been so effective in gutting these same communities for so long. Continue reading "Building Community in Poor Towns and Cities"
Jun 28, 2023 Martha ErtmanContracts
Marissa Jackson Sow’s brilliant article Whiteness as Contract pushes contracts scholars and critical race theorists to think about old topics in new ways by revealing connections between seemingly separate areas. It builds on Cheryl Harris’ Whiteness as Property, 106 Harv. L. Rev. 1709 (1993), to show the deep synergy between contract and white supremacy the way that Harris connected the private law of property to public law regulating racial subordination. Like Harris, Jackson Sow marshals high theory – here social contract theory — to explain persistent structural, economic, and physical harms to African Americans and in doing so prescribes a fix to those injustices. Jackson Sow’s “whiteness as contract” theory could and should shape many if not most future scholars’ writing about law and inequality.
We’re on the Contracts Jotwell page, so I focus on Jackson Sow’s Washington & Lee Law Review article. But you may already know about the breadth and ambition of Jackson Sow’s theory from the wide range of contexts to which she’s applied it: police brutality in Protect and Serve, 110 Cal. L. Rev. 743 (2022); enfranchisement in (Re)Building the Master’s House: Dismantling America’s Colonial Politics of Extraction and Exclusion, 121 Mich. L Rev. 113 (2023); and to defend critical race theory in Whiteness as Guilt: Attacking Critical Race Theory to Redeem the Racial Contract, 69 UCLA L. Rev. Disc. 20 (2022). Continue reading "Contract as a Tool of Systemic Racism & (Maybe) Reparations"
Jun 27, 2023 Lyrissa B. LidskyConstitutional Law
Merritt E. McAlister,
Macro-Judging and Article III Exceptionalism, UF Law Faculty Publications 1197 (2023), available at
UF Law Scholarship Repository.
In Macro-Judging and Article III Exceptionalism, Professor Merritt E. McAlister spotlights largely overlooked aspects of the operation of federal courts that work against the interests of litigants and society. Not only does the article expose the unintended consequences of institutional design choices, but it is written in an engaging and accessible style that more of us should emulate.
Broadly speaking, Professor McAlister analyzes and critiques the reshaping of the operation of the federal courts over the last fifty years through decisions concerning judicial workflow and workload. This reshaping is the product of what she calls “macro-judging,” i.e., “macro-level” decisions made or influenced by Article III judges concerning who decides which cases and how they decide them. Although “macro-judging” decisions over the last fifty years may have enhanced judicial efficiency, the aggregate effect has been to prioritize “the view that Article III courts are ‘special’ places, with elite judges whose work should focus on only the most important federal cases.” In other words, the effect of macro-judging decisions by the Article III judiciary has been to “entrench [ ] . . . Article III exceptionalism.” This article persuasively illustrates that Article III exceptionalism has had negative consequences for the public interest, and it lights a path toward reform. Continue reading "Aren’t We Special?: Article III’s Institutional Design"
Jun 26, 2023 Wendy WagnerAdministrative Law
Farhang Heydari,
The Invisible Driver of Policing, 76
Stan. L. Rev. __ (forthcoming 2024), available at
SSRN (June 3, 2023).
The “toothpaste tube theory” in administrative law predicts that when there are too many legal constraints placed on an agency (pressure on the tube), the agency will simply find another way to accomplish the same task more expeditiously (the toothpaste bulge moves). Examples are everywhere. The National Highway Traffic Safety Administration (NHTSA) deploys automotive recalls to avoid the travails of the rule-making process. Some agencies rely on pre-NPRM communications to shore up rule proposals and avoid the logical outgrowth test. Agencies might even rely on guidance to sidestep onerous notice-and-comment requirements for rulemaking. By following the path of least resistance, agencies can accomplish their statutory assignments more swiftly and with fewer risks.
In The Invisible Driver of Policing, which is forthcoming in the Stanford Law Review, Farhang Heydari brings the toothpaste tube theory to a new level in unveiling NHTSA’s displaced efforts at enhancing the safety of vehicle transportation. In sixty riveting pages, Heydari details how NHTSA—finding itself effectively blocked from regulating the powerful auto industry—shifted significant energies towards targeting the drivers themselves. Indeed, a whopping 80% of NHTSA’s budget is apparently dedicated to traffic enforcement. (P. 54.) Heydari then links a significant component of this enforcement to encouraging the use of “high traffic stops, ostensibly as a tack both to improve traffic safety and fight crime” (P. 2), transforming the agency into the “unexpected enabler of pretextual stops.” (P. 1.) To that end, NHTSA’s sponsored research “called for a 400-500% increase in traffic enforcement.” (P. 33.) Although Heydari’s article was intended to alert his fellow criminal law scholars to the prevalence of clandestine law enforcement by nonexpert governmental agencies (Pp. 52-55), his article is perhaps even more jolting for administrative law readers. Continue reading "NHTSA’s Incredible Journey from Industry Regulator to Surrogate Cop"
Jun 23, 2023 Henry L. Chambers, Jr.Work Law
In Regulating Marginalized Labor, Professor Mary Hoopes discusses the Equal Employment Opportunity Commission’s (EEOC) innovative approach to protecting farmworkers. She focuses on two key factors – a decentralized, entrepreneurial structure of enforcement and aggressive collaboration with advocacy organizations – in explaining the EEOC’s success. Professor Hoopes then suggests the broader implementation of those ideas could help lead to the “robust enforcement of civil rights within [other] administrative agencies.” (P. 1045.) That is a story worth telling and worth reading.
Professor Hoopes explores the special difficulties inherent in protecting the rights of farmworkers before detailing how an under-resourced EEOC helped bring justice to many farmworkers. She notes our history of agricultural exceptionalism – the exclusion of farmworkers from the protections of specific labor and employment laws – is a prime barrier to justice. For example, the National Labor Relations Act (NLRA) excludes agricultural workers from protections provided to workers who attempt to unionize, and the Fair Labor Standards Act (FLSA) exempts farmworkers from its overtime provisions. Continue reading "The EEOC’s Innovative Approach to Protecting Farmworkers"
Jun 22, 2023 Allison Anna TaitTrusts & Estates
Victoria Haneman,
Prepaid Death, 59
Harv. J. on Legis. 329 (2022).
Victoria Haneman’s recent article, Prepaid Death, is a call for change in the way that people shop for and ultimately purchase burial and funeral services as well as a plea for policy reforms that would encourage consumers to make these important decisions pre-need rather than at the time of death. At death, the time of need, family members and others involved in the funeral services selection are grieving, vulnerable, and willing to pay exorbitant amounts for things that the decedent might not even have wanted. As Haneman points out: “The pre-need consumer is cost-sensitive and far less likely to make decisions that are time-pressured or driven by guilt. Although decisions may be unfamiliar, there is time to research and familiarize oneself with options and providers — including new and innovative death care technologies that may not be on the menu of choices offered at one’s local funeral home.” She also points out that when consumers have more time to explore their options, low- and middle-income consumers benefit because of increased opportunities to access financing options.
The solution that Haneman suggests is leveraging Internal Revenue Code section 125 and flexible spending account principles. The current Flexible Spending Accounts (FSAs) program allows eligible employees to make voluntary pre-tax contributions for certain qualified benefits that do not currently include death care. One option would be to allow consumers to create a dedicated Death Care Flexible Spending Account funded with pre-tax earnings contributed to this earmarked account. A second option would be to continue using FSAs in their current form but add death care expenses to the list of reimbursable “qualified expenses.” Continue reading "Economies of Death"
