Jan 6, 2023 David HortonTrusts & Estates
Jeffrey N. Pennell & Reid Kress Weisbord,
Trust Alteration and the Dead Hand Paradox, 48
ACTEC L.J. _ (forthcoming 2023), available at
SSRN.
I don’t know about you, but, in all of my courses, there’s at least one topic I dread teaching. In Trusts, Wills, and Estates, that dishonor goes to the rules that govern the modification and termination of trusts. For starters, judge-made law, the Restatement of Trusts, the Uniform Trust Code, and the law of California (where I teach) march to their own subtly different drumbeat. In addition, the black letter law is filled with word balloons like “material purpose” and “general charitable intent.” Every semester, I see the subject approaching on my syllabus like an angry bull.
But when that time comes next year, I’ll be armed with Jeffrey N. Pennell and Reid Kress Weisbord’s new article, Trust Alteration and the Dead Hand Paradox. This engaging and exhaustively researched piece will sharpen the reader’s understanding of trust modification and termination. In addition, it makes three contributions to the literature. Continue reading "Trust Alteration in the Twenty-First Century"
Jan 5, 2023 John C.P. GoldbergTorts
Evelyn Atkinson,
Telegraph Torts: The Lost Lineage of the Public Service Corporation, __
Mich. L. Rev. __ (forthcoming, 2023), available in draft at
SSRN.
Evelyn Atkinson’s article, Telegraph Torts: The Lost Lineage of the Public Service Corporation, offers a fascinating look at judicial decisions and statutes from the late 1800s and early 1900s that–unusually for the time–imposed liability for negligence causing “pure” emotional distress. A typical fact pattern was as follows. A resident of a rural town would pay the local Western Union office to send an urgent telegram notifying the intended recipient that his close relative was dying. Because of Western Union’s negligence, the message was not transmitted. Bereft over having missed the last chance to commune with his dying relative, the intended recipient sued Western Union for damages. While claims of this sort often failed, courts and legislatures in Southern and Western states tended to validate them.
The paper is an effort to answer why, of all actors that caused foreseeable serious distress through their negligent acts, telegraph companies were almost uniquely vulnerable to liability, but only in certain states. Its answer has a paradoxical flavor. On the one hand, Atkinson suggests, liability was justified on the ground that Western Union–by far the dominant player in the industry–was for all intents and purposes a public utility, i.e., a powerful monopoly that provided an essential public service. As she explains, in parts of the West and South, when family members were geographically dispersed, the telegraph was effectively the only way for them to get in touch, particularly on short notice. Continue reading "When Bad News Didn’t Travel Fast Enough"
Jan 4, 2023 Daithí Mac SíthighTechnology Law
“Retrofuturism” in art and literature is a look back at the (sometimes recent) past and how the stories of the future were told. The retrofuturist aesthetic can be found in present-day theme parks like Walt Disney World’s Tomorrowland and EPCOT and in the concept of steampunk. Through retrofuturism, we try to understand what was once hoped for, often as a way of understanding success or failure and of critiquing present-day efforts and priorities.
Retrofuturist impulses are particularly important in technology law scholarship. Critical appraisals of ‘smart city’ and urban innovation projects and initiatives examine how people joined the digital with the material to imagine a better world. You can’t tell the story of the smart city without at least engaging with the tales of the city. And so, in a very real and immediate way, the literature of geography, planning, and–yes–physical architecture is a key resource for the legal scholar. In The Kind of Solution a Smart City Is: Knowledge Commons and Postindustrial Pittsburgh, Michael Madison gives us a compelling retrofuturist account of Pittsburgh, the smart city. Madison’s account of a range of projects in Pittsburgh (including those of the 21st century) tells a story that is both universal and particular, tapping into the need to understand the roads taken and not taken, and what was imagined or foreseen in the recent and not so recent past. Continue reading "There’s A Great Big Beautiful Tomorrow (For Pittsburgh)"
Jan 3, 2023 Carole SilverLegal Profession
Juliet’s soliloquy notwithstanding, how naming happens and what you’re called matters in the legal academy. In Unentitled: The Power of Designation in the Legal Academy, Rachel López illuminates the ways in which faculty titles and their corresponding categories function as drivers of inequality – an inequality that is difficult to discern because it is presented as justifiable, enmeshed within a seemingly merit-based difference that in turn is framed by the regime of tenure. Titles reflect and create difference: they function as proxies for the hierarchy inherent in the world of legal academia, and at the same time structure expectations, interactions and opportunities while signaling status. Nevertheless, these same titles are at odds with the commonalities that increasingly cut across faculty categories, and they mask the impact of different policies and perceptions that fall particularly heavily on women of color, and women generally. (P. 924.) To address these effects, López offers several concrete suggestions for law schools pursuing an anti-racist agenda.
López’s positionality matters in making this case: she is a boundary crosser, having begun her career in a non-tenure clinical role and then purposefully moving into a tenure-line role, where, among other things, she has continued her involvement with clinical legal education through teaching and administration. This history of crossing categories enables her to perceive the “problem of academic exceptionalism in the legal academy—hierarchy and exclusion are others’ problems, not our own.” (P. 925.) The orientation in the legal academy towards preserving the power and centrality of tenure-line faculty, which extends from governance to resource allocation, can be blinding to those within the system who may not perceive inequalities embedded both in the functional differences attributed to particular faculty roles and in the notion of merit that is seen as the foundation of these categories. Continue reading "“What’s in a name?”: Titles and Entitlement in the Legal Academy"
Jan 2, 2023 Kunal ParkerLegal History
Elizabeth Popp Berman’s Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy is a very smart book that deserves a wide audience. The book explores the rise to prominence of an economic “style of reasoning” in U.S. policymaking in the post-World War II decades. Between 1950 and 1980, Popp Berman shows, this style pervaded realm after realm of policymaking, from social welfare programs to the regulation of markets to the management of the environment.
The chief institutionalizers of the economic style of reasoning were not neoliberals or libertarians (these would become truly prominent in government only after the election of Ronald Reagan in 1980). Instead, they were Democrat-appointed economists and the bureaucrats they worked with and influenced. Albeit not ideologically opposed either to social programs or to market intervention, these economists and bureaucrats insisted that social goals be met as efficiently as possible and that market solutions were generally preferable to interventionist ones. Wherever possible, they pushed cost-benefit analyses and reviews within administrative agencies, urged the dismantling of early-twentieth-century market controls, and sought to achieve ends by creating markets for entitlements rather than by imposing standards by fiat. In all this, they shared much with those further to their right. Continue reading "The Economic Style"
Dec 19, 2022 JotwellJotwell
Jotwell is taking a short Winter break. Jotting should resume on Monday, Jan 2, 2023.
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Jotwell Editor in Chief
Dec 16, 2022 Chao-Ju ChenEquality
Racial justice in education and LGBTQ equality are on the chopping block as the Court is reviewing two affirmative action cases against Harvard University and the University of North Carolina on the ground of racial discrimination and a LGBTQ rights case challenging Colorado’s anti-discrimination statute on the ground of free speech at the intersection of religious liberty. Conventional wisdom places the blame for the regression of equality and civil rights on the Court’s conservative super-majority. This is the same super-majority that infamously wielded its power to roll back abortion rights in Dobbs v. Jackson Women’s Health Organization. Indeed, the Court’s taste for hot-button issues is a testament to the conservative super-majority’s willingness to align itself with the conservative movement’s legal/constitutional agenda. Liberals’ and equality movements’ resentment of the Court’s ambitious conservativism is well-founded.
For Osamudia James, more is to blame for the current constitutional threats to legal equality. The equality gains that many celebrate and endeavor to protect – racial desegregation in Brown v. Board of Education and the recognition of same-sex marriage in Obergefell v. Hodges – came with a built-in weakness that led to the entrenchment, rather than disruption, of inequality. Through her elaboration on the “relational obstacles” on the road to racial justice and LGBTQ equality, James identifies the paradox situation: due to the failure to address the superordinate status of white people and straight men and heterosexual couples, equality movements and courts have produced “equality-promoting” doctrines that not only undercut the wins but also preserve “paths for the status-threatened to reinstate or reaffirm superordinate positioning” (P, 202) that would, finally, leave their old hierarchies in place. Consequently, equality’s drag is the unfortunate and unintended byproduct of equality wins. The increasing racial segregation of public schools and retrenchment of LGBTQ rights can only be attributed partly to the conservative movement because equality movements’ litigation strategies and advocacy also have a role to play. Continue reading "Preservation through Transformation: How and Why Equality Litigation and Movements Have Failed to Dismantle Status Hierarchies"
Dec 15, 2022 Jill FamilyLexImmigration
An immigration lawyer’s work is rarely easy. The outcomes are high stakes, and the statutes are complex and harsh. The law is unstable because immigration law relies heavily on shifting agency memos. Backlogs and case completion times seem only to multiply. Clients understandably are on edge, and lawyers try to help them comprehend a maddening system. Immigration law is a challenging practice area, no matter who occupies the White House. During the Trump administration, however, the executive branch made things especially difficult as it focused its power on grinding the system to a halt.
In the midst of the Trump administration, asylum lawyers participated in a survey administered by Professors Lindsay Harris and Hillary Mellinger. Harris and Mellinger’s main finding is high levels of burnout and secondary traumatic stress among the asylum attorneys who responded to the survey. These attorneys scored higher, meaning more burnout, than social workers, hospital doctors, nurses, prison wardens, and immigration judges. In Asylum Attorney Burnout and Secondary Trauma, Harris and Mellinger report their methods and findings, and make recommendations for alleviating the status quo. Continue reading "The Immigration Lawyers are Not “Alright”"
Dec 14, 2022 Felipe JiménezJurisprudence
Courtney M. Cox,
The Uncertain Judge, 90
U. Chi. L. Rev. __ (forthcoming 2023), available at
SSRN.
The received wisdom about adjudication is that all a conscientious judge needs to decide a dispute is a sound grasp of the facts of the case, sufficient knowledge of the applicable legal materials, and a theory of adjudication to go with them. In The Uncertain Judge, Courtney Cox argues that this received wisdom is incomplete. At least in some instances, she claims, (i) judges might be uncertain about whether their preferred theory of adjudication is correct, and (ii) different theories of adjudication would lead to inconsistent outcomes. In such a situation, judges face a problem of normative uncertainty.
This problem, as Professor Cox argues, is a “meta-problem.” As long as we believe judges can be coherently criticized in certain ways, the problem is real, whatever theory of adjudication or jurisprudential view we think is correct. The problem, as she writes, “floats on top” of first-order jurisprudential debates. (P. 3.) And, as she argues, in the circumstances of normative uncertainty, the judge cannot simply stick to their guns and insist on their preferred theory, precisely because they are aware of the possibility that it might be the wrong theory. Continue reading "Inescapable Uncertainty and the Judicial Role"
Dec 13, 2022 Hoi KongInternational & Comparative Law
Jeremy Waldron,
Denouncing Dobbs and Opposing Judicial Review, NYU School of Law, Public Law Research Paper No. 22-39 (2022), available at
SSRN.
Professor Jeremy Waldron is perhaps the world’s most influential critic of what he calls “strong judicial review of legislation” (SJRL). (P. 1.) This form of judicial review—found paradigmatically in the United States—gives to courts the final say on the constitutionality of laws that are subject to judicial review. Now, a court in a system of SJRL will, on occasion, decide a case in a way that a critic of SJRL will disagree with. How should such a critic respond to this situation? That is the question that Professor Waldron answers in Denouncing Dobbs and Opposing Judicial Review (Denouncing Dobbs). This SSRN paper (written after the draft opinion of Dobbs v Jackson Women’s Health was leaked but before the decision was published) is a rich exploration of issues in constitutional theory and an enormous contribution to the comparative constitutional law literature.
I begin and end this review with some remarks about Professor Waldron’s contribution to the field of comparative constitutional law. Comparative constitutional law scholars often contrast SJRL with what Professor Waldron calls “weak judicial review of legislation” (WJRL). (P. 7.) Professor Waldron illustrates this contrast through a discussion of the different institutional consequences that would flow from, on the one hand, a court finding a law to be cruel in a system of SJRL (the United States), and, on the other hand, courts arriving at the same finding in systems of WJRL (in the UK and New Zealand). Professor Waldron writes:
In the United States, a finding that a legislated punishment is cruel (and unusual) will lead to the legislation being struck down. In Britain, that finding (or a similar finding that a given legislated punishment is “inhuman”) may lead to a Declaration of Incompatibility, which is likely to be followed by a legislative amendment. In New Zealand, such a finding may lead judges to strain for an interpretation (often a pretty distant one), which is consistent with [section 9 of] the NZ Bill of Rights Act. (Pp. 7-8.) Continue reading "Democratic Constitutionalism"
