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"
Mar 9, 2023 Andres GuadamuzTechnology Law
Ever since Judge Easterbrook famously declared Cyberlaw to be “The Law of the Horse”, and despite Professor Lessig’s excellent rebuttal, there has been a reluctance to declare new areas of legal study spurred by new technologies. Easterbrook claimed that we are in danger of descending into narrower legal sub-categories when most behaviour in what was known then as cyberspace was “easy to classify under current property principles”. At times this message has resonated with legal audiences, and we have largely not seen a push towards the creation of new legal categories. It would be difficult to say that there is such a thing as blockchain law, or artificial intelligence law, to name just two subjects close to this reviewer’s heart.
Nevertheless, after reading the excellent collection The Regulation of Social Media Influencers, edited by Catalina Goanta and Sofia Ranchordás, it is possible to envision a world in which we may have a new legal sub-category: Influencer Law. Importantly, the editors never claim the existence of a new branch of legal study, but the richness of the subject on display leads me to think of this relatively new area of research as its own thing. This is a rich subject that covers free speech, labor, consumer protection, advertising, intellectual property, and contract law, just to name a few. While these separate subjects could be analysed in their own separate niches, there is an argument to be made to bring them all together as a separate area of study, as they often interact with one another in manners that encourage a single thematic analysis. In general, edited books can be the poor relative of scholarly publications; in European academia for example, these books are the academic outputs that are valued the least. In this case, however, there is not a weak chapter in this collection and there is a very clear structure running throughout the book, with each section clearly delineated and well-executed. Continue reading "The Dawn of Influencer Law"
Mar 8, 2023 Charlene D. LukeTax Law
In Taxing Data, Omri Marian argues that taxing data-rich markets requires rejecting income taxation—not only as implemented but also “in its optimal theoretical form”—as the best proxy for ability to pay. Instead, Marian makes the radical suggestion that data itself “may be a better proxy” for ability to pay, and he offers three fundamental features that should guide “a reimagined tax on data.”
The article is rich in detail and is at its most persuasive in discussing the income taxation of business entities. Drawing on the work of tax historians and scholars, Marian summarizes two dominant narratives explaining the origins of the corporate income tax: the corporate income tax as a proxy for shareholder income, and the corporate income tax as a means to rein in management. Marian points out that if corporate ownership and management is largely local and traceable, which it was “at the dawn of corporate taxation,” then “whether the attempt was to target shareholders’ ability to pay, or managerial interest, the taxation of corporate income made sense.”
On the horizon, however, was a perfect storm of globalization, dispersion, and “intangible-ization,” which, Marian asserts, “our data-rich economy amplifies by orders of magnitude.” These forces have now so completely swamped the corporate income tax’s ability to identify source or ownership and to measure value that it is time to “revisit our conceptual tax design.” Continue reading "Tax Design for a Data-Rich World"
Mar 7, 2023 Sara BroninProperty
In recent years, communities across the United States have accelerated decisions to remove Confederate monuments. Many removals have been successfully completed with the cooperation of the property owner and public authorities. But others, especially in Southern states, have been more challenging. In nine states, “statue statutes” can prevent or inhibit any changes to Confederate monuments, even where the property owner (often, a local government) seeks removal.
Deborah R. Gerhardt’s Law in the Shadows of Confederate Monuments presents an enriching account of the tensions created by state statue statutes, and it offers a new idea to resolve them. Continue reading "The Long Shadow of Statue Statutes"
Mar 5, 2023 Steve GoldLexEnvironmental Law
“It’s obvious” is one of the all-time putdowns of a paper at a workshop. But like many putdowns, this one comes with a ready-made riposte: “If it’s so obvious,” the author might ask, “why hasn’t anyone said it before?”
Dave Owen willingly invites this exchange in the opening of The Negotiable Implementation of Environmental Law. The article begins with a hypothetical factory-siting scenario that to “many practicing environmental lawyers…would sound routine.” (P. 3.) What makes this familiar scenario interesting? The fact that negotiation helps define at least some of the legal obligations imposed by each of numerous implicated facets of environmental law. That fact, Owen persuasively argues, is under-appreciated in environmental law teaching, scholarship–and reform proposals.
In a broad yet specific survey of canonical environmental statutes, Owen describes the central role negotiation plays. He identifies statutory provisions that permit or encourage negotiation (such as CERCLA’s detailed provisions for Superfund remedial action agreements) as well as statutory gaps that might be filled by regulatory edict but leave room for possible negotiation (such as the Endangered Species Act’s requirement that an acceptable habitat conservation plan be included in incidental take permits). But he goes beyond the letter of the law to explain how negotiation affects environmental law in practice. For this, Owen relies heavily on snippets taken from 42 interviews with a range of environmental law practitioners. The interview methodology adds considerable credence to Owen’s description. Because the interviews are so important to his thesis, it is a bit frustrating, though understandable, that they are anonymous and labeled only with generic descriptions of the interviewees’ jobs. Nevertheless, the quotes from the interviews ring true, at least to this former government attorney. Continue reading "Sometimes the Truth Is Staring Us in the Face"
