Mar 29, 2023 Ezra YoungEquality
Before I stepped behind the podium for the first time in Fall 2021, I made a conscious decision that I would not hide that I pray from my students. My particular combination of anxiety and devoutness more often than not means that I pray for the strength, wisdom, clarity, and patience to reach each and every one of my students before I dive into any given day’s materials. As a cradle Catholic, ending a private prayer even in public with the sign of the cross is a highly visible reflex. That first time I prayed in front of my class, I hesitated. Not because I’m ashamed of my faith. But because I worried what my students might think I was praying for, given the significant and enduring problems with American Catholicism and the institutional Church.
In time, as I’ve gotten my sea legs as a law professor, many of the things about the job have become easier. But it is only quite recently that I’ve seen fully that my lifelong commitment to a faith and Church that promises everything but regularly falls woefully short is compatible with teaching Constitutional law day-in and day-out. Some days, the only thing that keeps me going in a broken and flawed Church and country is faith. Faith that, despite all the failures, self-inflicted injuries, horrific and at-times seemingly unspeakable truths, redemption and salvation is just around the corner.
This is precisely why Christians put so much emphasis upon Jesus’ liberatory teaching in John 8:32, “You will know the truth, and the truth will set you free.” Truth and freedom are inextricably intertwined. The same can be said about the United States. As Frederick Douglass so astutely observed in his speech, What To the Slave Is the Fourth of July, true American liberation was impossible without reckoning with Black slavery. To wit, he urged “The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.”
This brings me to Professor Anthony Paul Farley’s latest article, Critical Race Theory & the Gospels, which hits home for me for at least one obvious reason as a devout Catholic. Farley’s stunning prose beautifully illustrates and elevates the parallels between how enslaved Black folks who were Christian came to understand slavery, liberation, and emancipation as an ordeal that mapped directly onto the suffering, sacrifice, death, and resurrection of Christ. Farley’s at-times masterfully lyrical writing is, to be sure, reason enough to read this article and share it widely. As one example, “Slavery is death, death only, and that continually. This death, far from being an escape ‘devoutly to be wish’d’, is a perpetual calamity…Slavery is crucifixion. Death, calamitous death, is forever” (P. 724). And yet, that is not why I picked this piece to feature in this Jot. Continue reading "CRT Tells It on the Mountain"
Mar 28, 2023 Maya ManianHealth Law
David S. Cohen, Greer Donley & Rachel Rebouché,
Abortion Pills, 76
Stan. L. Rev. __ (forthcoming 2024), Mar. 15, 2023 draft available at
SSRN.
In countries around the globe that have long criminalized abortion, women and pregnant people have been using abortion pills for decades to end their pregnancies. Public health research has shown that abortion pills are safe and effective for terminating a pregnancy, even when people access pills and self-manage abortions outside the formal health care system. Since the decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and permitted states to broadly restrict access to abortion care at any stage of pregnancy, abortion foes and abortion advocates have been engaged in a pitched battle over access to abortion pills. The majority of abortions in America are now managed through pills rather than a procedure. Given this reality, the legal battles over abortion pills could determine who has access to abortion care on the ground not only in red states, but even in blue states where many people presume (incorrectly) that their access to comprehensive reproductive health care is safe.
In their aptly titled draft article, Abortion Pills, David Cohen, Greer Donley, and Rachel Rebouché tackle the complicated legal terrain on which the abortion pills war is currently being waged. The authors argue that the battles over abortion pills will transform public contestation about government regulation of abortion going forward. The article provides a much-needed overview for scholars and advocates struggling to keep up with the barrage of litigation and legislation governing abortion pills post-Dobbs. Even more importantly, the authors crystallize the consequences of these legal battles for access to care nationwide. As with this trio’s previous article, The New Abortion Battleground, which was cited by the dissenting opinion in Dobbs and predicted much of the legal fallout from that decision, Abortion Pills is an important contribution to the rapidly growing literature on the impact of overturning Roe. Continue reading "A New War on Drugs in the Post-Roe World"
Mar 27, 2023 Robert RosenCorporate Law
Jillian Grennan & Kai Li,
Corporate Culture: A Review and Directions for Future Research in Handbook of Financial Decision Making (Gilles Hilary & David McLean eds., forthcoming 2023), April 28, 2022 draft available at
SSRN.
In the 2022 Annual Review of Financial Economics, Jillian Grennan, with lead author Gary B. Gorton and Alexander K. Stentefis, document studies by economists that use “corporate culture” to explain M & A choices and consequences, individual and business risk-taking, as well as corporate malfeasance. Such research has been propelled by new data sets and methods. For example, employee grievances and networks are now revealed on the web and natural language processing now translates texts into cultural elements. Work in this mode also emerges because much remains to be explained about corporate decisions after the usual analysis under the property rights and agency cost paradigms. Grennan and her co-authors propose corporate culture as a new “theoretical paradigm” for corporate finance research.
The problem with this paradigm, as the authors note is that “culture” is an “omnibus term.” Unpacked, it includes “values, norms, conventions, shared beliefs, customs, traditions, symbols, rituals, knowledge, identity, ideologies, identities, and shared mental models.” Corporate culture includes everything from employee perceptions of managers’ ethics (positively associated with Tobin’s Q) to stock options for rank-and-file employees (positively correlated with financial misreporting). Mathematical representations of corporate culture are few in number. We have measurements of company reputations, homogeneous beliefs across the company, and managerial preferences. But these tell us little. Researchers have shown us that “employees’ firsthand impressions of the manager’s instructions, along with their secondhand interpretations from communicating with each other about the manager’s instructions, together shift the observed culture away from the manager’s intended one.” Furthermore, there also is “within-person cultural diversity”–individuals believe contradictory things. Consequently, despite reviewing research that finds correlations between “cultural” changes and financial decisions, the authors call for “More theoretical work on corporate culture.”
Fortunately, Jillian Grennan takes steps to developing such a theory in her book chapter with Kai Lin, Corporate Culture: A Review and Directions for Future Research. They begin by noting that in the 1950’s, anthropologists assembled a list of 164 different definitions of societal culture. They draw on sociological theory to describe culture as part of the informal institutional structure of firms. They understand that culture has two faces: meaning-creating and behavioral patterning. The expectations employees have about “how they need to behave to fit in and succeed in their firm” are part of corporate culture. Changes in such expectations are then studied to understand the dynamics of corporate culture. Continue reading "Corporate Culture is Complicated"
Mar 24, 2023 Nancy KimContracts
Tim Samples, Katherine Ireland, and Caroline Kraczon,
TL;DR: The Law and Linguistics of Social Platform Terms-of-Use, __
Berkeley Tech. L. J. __ (forthcoming 2023), available at
SSRN.
Much has been written about ubiquitous online terms of service or terms of use (TOUs). But, as Samples, et. al. write in their forthcoming article, TL;DR: The Law and Linguistics of Social Platform Terms-of-Use, TOUs are poorly understood. Their interdisciplinary study examines the “law and linguistics” of 196 agreements for 75 smartphone-based social platforms. Most other studies of TOUs have a law and economics vantage point, but their study combines legal analysis with “natural language processing, data science, and corpus linguistics.” (P.5.) Corpus linguistics is the “scientific study of naturally-occurring language in the aggregate, often in large datasets, so-called corpa.” (P. 4.) All this means that their study focuses on what matters when thinking about consumer contracts: the language and readability of contracts.
The article begins with a summary of what most contract scholars know by now (nobody reads adhesive form contracts), and then proceeds with an overview of the law in this area. The authors note that social platform TOUs have characteristics that make them particularly problematic. First, they operate on an unprecedented scale. The largest platforms, such as Facebook, affect billions of users. Continue reading "Click To Agree That Terms of Use are Incomprehensible"
Mar 23, 2023 Richard MurphyAdministrative Law
Michael A. Livermore,
Catastrophic Risk Review, (forthcoming 2023), available at
SSRN.
Dan [Billy Bob Thornton]: Well, our object collision budget’s a million dollars, that allows us to track about 3% of the sky, and beg’n your pardon sir, but it’s a big-*** sky. ***
President [Stanley Anderson]: What kind of damage are we…
Dan: Damage? Total, sir. It’s what we call a global killer. The end of mankind. Doesn’t matter where it hits. Nothing would survive, not even bacteria.
President: My God. What do we do?
In the 1998 disaster film, Armageddon, a Texas-sized asteroid is on track to smash into the Earth, finishing the job started by the asteroid that did in the dinosaurs. Fortunately, a NASA official, Billy Bob Thornton, finds an oil driller, Bruce Willis, who (SPOILER ALERTS!) digs a deep hole in the asteroid and blows it up, sacrificing his life but only after giving his blessing for his daughter, Liv Tyler, to marry Ben Affleck, whom Bruce Willis loves like a son.
Professor Michael Livermore’s thought-provoking essay, Catastrophic Risk Review, makes the case that there is a better way than killing Bruce Willis to avoid massive death and destruction from asteroid strikes: Put the Office of Information and Regulatory Affairs (OIRA) on the job. Continue reading "Armageddon, but with OIRA Instead of Bruce Willis"
Mar 22, 2023 Joseph SeinerWork Law
In Algorithms, Discrimination and the Law, Professor Michael Selmi performs an excellent analysis of the many controversial issues related to an employer’s use of algorithms in making employment-related decisions.
The use of algorithms in the workplace has garnered substantial academic discussion in recent years, as this type of technology has become more readily accessible to employers. The widespread use and reliance on technology to formulate employment-related decisions has created a host of workplace-related issues. At the forefront of these concerns is that the use of algorithms will discriminate against minority workers and applicants. These concerns are well-founded, and additional empirical work is needed to explore the parameters of this form of discrimination and to examine this important and emerging topic more broadly. Continue reading "Technology, Disparate Impact, and Discrimination"
Mar 21, 2023 Sarah WaldeckTrusts & Estates
The reason I liked Adam J. Hirsch’s article is in its title: When Beneficiaries Predecease: An Empirical Analysis. Empirical analysis is particularly useful for the default rules governing wills. Most of these rules are intent-furthering, meaning that they ordain the result that legislatures and the Uniform Law Commission think most testators prefer.
Provisions about lapse and antilapse are part of the default rule lexicon for wills. Tempora mutantur may be a universal truth, but some testators nonetheless fail to provide any instructions about what do if a beneficiary predeceases them. The rules of lapse and antilapse fill this gap in the testator’s will. Setting aside some jurisdictional niceties, the rules of lapse are simple enough: (1) property left to the deceased beneficiary goes to the takers of the residuary estate; and (2) if the deceased beneficiary was to receive part or all of the residue, the property goes to either the other takers of the residue or to the testator’s heirs at law. Continue reading "To Learn What People Want, Ask"
Mar 20, 2023 Donal NolanTorts
Future legal historians are unlikely to disagree on the area of Commonwealth tort law which underwent the most radical transformation in the early years of the twenty-first century. After having lain largely dormant throughout the previous century, in the last two decades the doctrine of vicarious liability has been subject to far-reaching changes across much of the common law world, which surpass in their extent other recent developments in the law of tort. And those historians will find no better guide to these changes than this timely and illuminating collection of essays, expertly curated by Paula Giliker.
The core of this collection consists of essays on recent developments in vicarious liability in Australia, Canada, England and Wales, Ireland, New Zealand, Hong Kong, Scotland (as a mixed legal system, an exception to the common law focus), and Singapore. These essays are bookended by two substantial chapters by the editor, in which she first introduces the issues and methodology and later draws some comparative conclusions and considers the insights to be gained from cross-jurisdictional analysis. As so often is the case, it is the editor’s own contribution that makes this collection of essays more than just the sum of its parts, and Giliker deserves credit not just for conceiving of such an innovative project, but for bringing it to fruition with such aplomb. Continue reading "Comparing Vicarious Liability"
Mar 13, 2023 A. Michael FroomkinJotwell
Jotwell is taking a week off for Spring Break. During this week we hope to complete some important software updates.
I and the Jotwell Student Editors — Nathan Arnaiz, Jenn a Ferolie, amd Noah Gross — wish our readers in and outside Ukraine safety and good health. Posting will resume on Monday, March 20. See you then!
Mar 10, 2023 Fred O. Smith, Jr.Courts Law
Here is the puzzle. On one hand, various species of originalism have ostensibly come to dominate American constitutional law. “We are all originalists,” Justice Elena Kagan contended during her 2010 confirmation hearings. “Is originalism our law?” William Baude asked in widely cited 2015 Columbia Law Review article. (His answer was a qualified and nuanced “yes.”) And in the last couple of years, originalism at the Supreme Court has become broad and deep. Broad, in that originalist arguments have proven resistant to countervailing methodological tools such as precedent or even text, allowing originalist arguments to prevail in a wider range of constitutional settings. Deep, in that on issues such as gun rights, the Court has demanded more and more in the way of precise historical analogies from the Founding (or the Second Founding).
On the other hand, Mila Sohoni observes that despite originalism’s rise, one area has been mostly absent from originalism’s reach—procedure. Sohoni focuses on a body of law she terms “constitutional civil procedure,” explaining that a number of important questions in civil procedure turn on interpretations and constructions of constitutional text. Sohoni cabins her analysis to constitutional doctrines that tend to be taught in civil procedure as opposed to courses on constitutional law, federal courts, or remedies. Originalism has barely touched core questions of civil procedure. “It would be tempting to say that all this has been hidden in plain view, but that would only be a half-truth. Civil procedure’s nonoriginalism hasn’t been hidden at all. And yet—until recently—few originalists have faulted procedural law for its infidelity to original meaning.” (P. 992.) Continue reading "Originalism’s Procedural Puzzle"
