Jan 20, 2023 Rosalind DixonInternational & Comparative Law
In his important new book, The Law as a Conversation Among Equals, Roberto Gargarella offers a new vision for both democratic politics and democratic constitutionalism. Politics, Gargarella argues, should be more both egalitarian and participatory, and premised on a form of grassroots “conversation among equals” rather than elite Schumpeterian-style competition or bargaining. Constitutionalism, in turn, should do more to enable and encourage this kind of participatory politics – through citizen assemblies as key part of a process of constitutional design and amendment, and “dialogic” models of judicial review that encourage and empower democratic participation.
Why? The current disillusion with democracy, Gargarella argues, is driven by a fundamental desire for – and indeed expectation of – voice and participation on the part of citizens, when current democratic and constitutional models remain largely non-participatory in nature. This mismatch has grown over time and is now in urgent need of redress if we are to restore faith in the democratic constitutional project. Continue reading "Conversation or Competition Among Equals"
Jan 19, 2023 Jessica Lind MantelHealth Law
Jaime S. King, Alexandra D. Montague, Daniel Arnold & Thomas L. Greaney,
Antitrust’s Healthcare Conundrum: Cross-Market Mergers and the Rise of the System of Power, __
Hastings L. J. __ (forthcoming 2023) available at
SSRN.
In Antitrust’s Healthcare Conundrum: Cross-Market Mergers and the Rise of the System of Power, Jamie King, Alexandra Montague, Daniel Arnold, and Thomas Greaney highlight a significant gap in federal and state antitrust enforcement policy─the growing market power of healthcare systems than span multiple local geographic markets. Although antitrust enforcers have long assumed that mergers and acquisitions among providers competing in different geographic markets pose little threat to competition, the authors persuasively argue that this assumption is wrong. To support antitrust enforcement in this area, the article proposes an initial framework for cross-market merger analysis that draws upon the insights from antitrust caselaw, guidance documents from American and European Union antitrust agencies, and economic and legal scholarship.
In their review of lessons learned from conglomerate mergers outside of the health care context, the authors identify two key factors suggestive of anticompetitive effects. First, the merger creates linkages between the markets served by the merging entities when their products or services are related or complementary and can be packaged together for sale to a common customer. Second, when significant, those linkages can generate pricing power that allows one or more of the merged entities to raise prices. The article then examines how cross-sector health mergers across geographic markets can create linkages that satisfy these conditions. Continue reading "Challenging Anticompetitive Cross-Market Health Mergers"
Jan 18, 2023 Brian BixFamily Law
Rachel Rebouché,
Bargaining about Birth: Surrogacy Contracts During a Pandemic, 100
Washington University Law Review (forthcoming, 2023), available at
SSRN.
The United States is an outlier among other nations on the matter of surrogacy. While other countries are cutting back on the practice (not allowing payments to surrogates beyond compensation for expenses, allowing use only by intended parents from their own countries, or prohibiting it entirely), the trend in the United States is in the other direction: more states authorizing surrogacy and enforcing surrogacy agreements, and more states authorizing commercial surrogacy (i.e., payments to surrogates beyond their expenses), with only a few states putting residential restrictions on who can use the process. In Bargaining about Birth: Surrogacy Contracts During a Pandemic, Rachel Rebouché reports that 47 states, “either through statute or case law” (P. 6, footnote omitted), authorize surrogacy. This article, and Rebouché’s previous work, artfully explore the way that surrogacy is a practice that depends on a mixture of legal and extralegal norms.
The particular focus of the article is on how surrogacy practice was affected by the pandemic, with surrogates and intended parents negotiating restrictions on travel and potential disagreements regarding inoculation and isolation. On the whole, though, the particular complications of COVID are presented primarily as examples of more general truths about how surrogacy works. Continue reading "Divergences Between Surrogacy Law and Practice"
Jan 17, 2023 Elena LarrauriCriminal Law
All scholars that work on prison law develop a sense of dismay when they see how little law can achieve in transforming prisons into more “survivable” institutions. Even when the law is “good,” it usually is too broad, leaving an ample space of discretion to the prison administration. Judges, in turn, tend to defer to the exercise of this discretion in ways that overwhelmingly favor the interests of the institution to the detriment of the prisoners. Therefore, if one looks at the intervention of the judiciary, the sense of dismay does not wither away. The ‘activism’ of the Courts seems to produce limited changes. Be it the American Supreme Court, or the European Court of Human Rights, the fact is that the courts accept that a certain degree of humiliation is acceptable in prison, and “the [European] Court still applies a relatively high threshold by accepting that every detention holds an ‘inherent element of humiliation’ and an ‘unavoidable level of suffering’… so we can only induce from the Courts’ case law which kind of humiliation or suffering it finds ‘acceptable’ and which not.”
And yet, despite our knowledge of the limited capacity of law and the judiciary to produce relevant changes, most legal scholars that occupy themselves with prisons tend to have some trust, some hope, however faint, that law can achieve something. For one, because ‘sociology without law is toothless’ (and law without sociology is incapable of affecting change) (Livingstone et al., 2008). And on the other hand, because as Justin Driver and Emma Kaufman state in their outstanding article The Incoherence of Prison Law, we cannot abandon legal analysis of prison because:
“Written regulations shape nearly every facet of prison life, from when prisoners pray and how long they can grow their beards to when they can see their children [and therefore] critics of American criminal justice cannot ignore prison law.” (P. 520.)
Their paper makes an excellent summary of the reasons why we should concern ourselves with prison law. Continue reading "Keep On Pushing…"
Jan 16, 2023 Daniel BarnhizerContracts
J.J. Prescott and Evan Starr,
Subjective Beliefs about Contract Enforceability __
J. Legal Stud. __ forthcoming 2023, available at
SSRN.
In this article, J.J. Prescott and Evan Starr analyze the practical problem of how perceptions of contract enforceability can affect party behavior even when those perceptions are incorrect as a matter of law. Specifically, the authors tackle the difficult divide between the law on the books versus the law in action as famously described by Roscoe Pound. Under Pound’s formulation, the practical applications of law by parties in the real world will often diverge from the model of behavior upon which applicable laws regulating the parties’ conduct are based. As the divergence between reality and law increases, eventually either the law must adapt through development and adaptation of legal fictions to resolve the divergent applications or courts and legislatures must respond with new law. Subjective Beliefs about Contract Enforceability develops important observations regarding how parties actually respond to unenforceable contract obligations versus legal prohibitions on enforceability of certain contract terms and provides support for creation of new legal responses to address that divide.
The article approaches the general problem of perceptions of contract enforceability through the lens of employment contracts. In particular, the article analyzes the issue through the empirical question of how employees’ perceptions of the enforceability of non-compete clauses in their contracts affects their willingness to seek alternative employment even where state law prohibits enforcement of such provisions. The empirical project begins with the proposition that “[h]ow individuals behave in response to law depends on their particular and sometimes mistaken beliefs about the law’s content, including the probability of enforcement.” (P. 1.) As the authors note:
Our work is motivated by two recent findings that point to the possible influence of mistaken beliefs in this domain. First, employers use noncompetes heavily in states that explicitly refuse to enforce them. Second, noncompetes appear to influence employee mobility even in states where such provisions are unenforceable. While there are several reasons why employers might use and employees might comply with noncompetes even when employees know that a court will not enforce them (e.g., reputational harm or disutility from breaking a “promise”), one explanation for these results is that employees have mistaken beliefs about noncompete policies and that these beliefs matter to their choices. (P. 1.) Continue reading "Perceptions and Reality"
Jan 13, 2023 Jay TidmarshCourts Law
Helen Hershkoff & Luke Norris,
The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, 122
Mich. L. Rev. 1 (forthcoming, 2023), available at
SSRN.
Since Robert Cover’s 1981 article, many (including me) have accepted on faith that jurisdictional redundancy is a good thing. Redundancy is a feature of many complex systems. In the judicial context, redundancy creates competition among courts. According to Cover, this competition prevents ossification of the judicial process — whether that ossification arises from the self-interest of one system’s judges, from one system’s ideological capture or impasse, or from one system’s resistance to innovation. The principal cost of jurisdictional redundancy, especially in the context of state and federal courts, is its inherent messiness or inefficiency; an array of often complex doctrines polices the lines between systems (think of the rules of subject-matter jurisdiction, abstention, and full faith and credit, to name three). Concurrent jurisdiction between federal and state courts has a pedigree nearly as old as the Republic, its inefficiency often seen as a necessary cost to achieve the benefits of jurisdictional redundancy.
This sobering article by Helen Hershkoff and Luke Norris adds a new set of factors — how corporations have exploited the diffusion of adjudicatory power to evade accountability for their actions — that weaken the case for redundancy. Worse, the authors seek to demonstrate how this corporate abuse of jurisdiction bleeds over from preserving economic power to creating political power, establishing the conditions for oligarchic authority that undermines American democracy and self-government. Continue reading "Jurisdictional Abuse and American Democracy"
Jan 12, 2023 Mila SohoniAdministrative Law
Daniel Deacon & Leah Litman,
The New Major Questions Doctrine, 109
Virginia L. Rev. __ (forthcoming 2022), available at
SSRN.
Readers of Jotwell’s administrative law section need no introduction to the major questions doctrine—either in its older forms, or in its new and more muscular incarnation as a clear statement rule that requires that Congress speak in pellucid terms in order to authorize an agency to regulate a question of “major” significance. What some readers may not have noticed is that the stream of commentary on the new major questions doctrine has already burgeoned to such an extent that simply keeping up with it all is no small challenge. In his own recent contribution to this growing corpus, Professor Chris Walker recalled Justice Scalia’s Brand X dissent, which sardonically saluted the Court for creating “a wonderful new world … full of promise for administrative-law professors in need of tenure articles and, of course, for litigators.” But that list is far too short. The new major questions doctrine is also evidently “a wonderful new world” for podcasters, bloggers, essayists, and op-ed commentators—not to mention quite a few administrative law professors who already have tenure (including me).
Professors Daniel Deacon and Leah Litman, in their impressive article The New Major Questions Doctrine, presented an early assessment of the doctrine within mere weeks (!) of the Term’s end. They begin by situating the doctrine against other tools available to courts to constrain the exercise of authority by administrative agencies: statutory interpretation and nondelegation doctrine. (Pp. 8-12.) They correctly detect an “evolution” (P. 13) in the Court’s approach to the major questions doctrine beginning with the Court’s decision in the case challenging the CDC’s imposition of a nationwide eviction moratorium. In that decision, in the subsequent challenge to the OSHA vaccine mandate, and in West Virginia v. EPA, the Court gradually shifted its application of the major questions doctrine, ultimately shaping it into a rule that “frames—and alters—the entire enterprise of statutory interpretation.” (P. 23.) As the Court left matters at the close of the last Term, the new major questions doctrine requires that statutory authorization to address a major question “jump off the page.” (P. 25.) Continue reading "Form And Substance In The New Major Questions Doctrine"
Jan 11, 2023 Matt BodieWork Law
Sanford Jacoby has achieved a truly rare feat: taking a narrow, specialized, and somewhat obscure topic and shaping it into a magisterial narrative that provides true understanding of the players and the drama involved. Labor in the Age of Finance is a tour de force that captures the labor movement’s efforts to muddle through during the ascendance of corporate finance without losing its way. This story has been told in bits and pieces, but never so comprehensively and never so completely. Jacoby marshals a mammoth number of news events, legal theories, political struggles, and vivid characters to recount how unions and their associated pension funds sought to advance their interests in a world hostile to–yet dependent upon–their participation.
For many decades now, the narrative for the labor movement has been one of pessimism and desolation. Since the 1960s, unions have represented a smaller and smaller percentage of private-sector employees, now hovering around six percent of the workforce. The fields of labor law and labor history have ruefully captured the movement’s downfall, with macro analyses and small portraits alike portraying the twilight of labor’s role in society. Continue reading "Between BlackRock and a Hard Place"
Jan 10, 2023 Susan MorseTax Law
Under tort and agency common law, the more control a firm exerts over its workers, the more likely that workers will be classified as employees rather than independent contractors. The need to determine control prompts a line-drawing exercise and offers opportunities for firms and/or workers to manipulate the result, rather than choosing the best abstract analysis on the facts. In Independent Contractors in Law and in Fact: Evidence from U.S. Tax Returns, Eleanor Wilking constructs a huge tax-return-based dataset and uses it to show that firms appear to game the employee/independent contractor distinction, that evidence of manipulation is stronger when lower-income workers are involved, and that the tendency to classify workers as independent contractors has likely increased over time.
A lot turns on whether a worker is an “employee.” Access to retirement plans, health insurance, certain government benefits and antidiscrimination protections follow from employee status. Tax, tort, contract, intellectual property and other legal results often differ based on whether a worker is an employee. Most, although not all, legal features require firms to offer more protections and benefits for employees, as opposed to independent contractors. Thus a firm’s incentive to manipulate generally tilts towards independent contractor classification, holding all else equal, particularly for lower-income workers. Continue reading "Terms of Employment"
Jan 9, 2023 Yael LifshitzProperty
Sharing the Climate by Professor Rashmi Dyal-Chand shines a light on a surprisingly understudied, yet immensely important, aspect of the climate crisis: to a large extent, the climate crisis is all about resources. Whether fertile and livable land, healthy trees, drinkable water or breathable air, the depletion starts with resource management (or, failures thereof).
Property is the conceptual category that allows us to distribute and govern resources. So property law and concepts should be at the forefront of responding to a resource-based crisis, right? As Rashmi Dyal-Chand points out, unfortunately, at the moment, that is not the case.
The key contribution of the article is underscoring the ways in which property law could contribute to the climate discourse. Dyal-Chand calls on scholars and policymakers to examine the role property law currently plays, and the role it can play, in mitigating and adapting to the climate crisis. Continue reading "Owning (Up To) the Climate Crisis"
