Dec 12, 2022 David FagundesIntellectual Property Law
James Grimmelmann & A. Jason Windawi,
Blockchains as Infrastructure and Semicommons, __
Wm. & Mary L. Rev. __ (forthcoming 2023), available at
SSRN.
In popular culture, blockchains (to the extent they are understood at all) are associated with cryptocurrency, and following the crypto crash of 2022, increasingly dismissed as part of a classic asset bubble. But legal scholars are more sanguine. They tout the potential of blockchain, or, more prosaically, “distributed ledgers,” to transform private law, from contracts to securities to property. Blockchains are hoaxes or panaceas depending on which source you consult.
James Grimmelmann and A. Jason Windawi’s sparkling essay, Blockchains as Infrastructure and Semicommons, charts a path between these two extremes. It does so by calling attention not to what blockchains can do for law, but rather by focusing on the novel question of what legal theory can tell us about how blockchains work. The essay leverages two influential notions from property—infrastructure and the semicommons—to deliver insights about blockchains as well as an object lesson in the value of looking at distributed ledgers through the lens of legal theory. Continue reading "Blockchains as Technosocial Systems"
Dec 9, 2022 Christina S. HoHealth Law
One source of the cognitive dissonance we feel these days comes from the near-constant demands for individual freedom juxtaposed with the equally pervasive evidence of deep craving for community. Voices from inside and outside the reactionary right invoke autonomy against masking, personal choice in vaccination, and the right to fend off others with guns. This exhausted political rhetoric of liberty disavows any obligations toward one another and threatens bitter backlash against any pro-social claim. This is the discourse we hear, the words on the surface. However, when we look at people’s revealed preferences, we see a different picture. And that is exactly what Wendy Epstein, Christopher Robertson, and their coauthors in their new article, Can Moral Framing Drive Insurance Enrollment in the United States, call us to attend to in health insurance markets. Instead of defaulting to the assumption that we must speak to our selfish fallen selves, we may do better to assume each others’ better generous selves when it comes to, of all things, advertising insurance.
Indeed as the anxieties of this atomized, isolated, every-tub-on-its-own-bottom mentality yawn before us, I find it curious that we don’t see Americans scattering to the winds, toward various individual, idiosyncratic courses of action. If anything, we are all gravitating toward our tribes—ever more polarized communities to be sure, but communities nonetheless. I’m reminded of an earlier quote about the Trump political phenomenon: “It’s Möbius strip politics, Trumpism’s defining oxymoron: a populist elite, a mass movement of “free thinkers” all thinking the same thing.” Continue reading "Health Insurance Sales Pitch: We Are Our Best Selves"
Dec 8, 2022 Josh Gupta-KaganFamily Law
Tarek Z. Ismail,
Family Policing and the Fourth Amendment, 111 Calif. L. Rev. __ (forthcoming 2023),
available at SSRN.
Every year, Child Protective Service (CPS) agencies investigate about 3 million families around the country for alleged neglect or abuse of their children. Under agency policies, all of those millions of investigations include searches of families’ homes. CPS investigators knock on the door (usually unannounced), look in every room of the house, open kitchen cabinets, sometimes inspect children’s bodies, and generally look for any evidence of child maltreatment. Yet CPS agencies rarely seek a warrant, and typically act as if that is unnecessary. (P. 18 & n.86.)
In Family Policing and the Fourth Amendment, Tarek Ismail aptly explains why, notwithstanding current practice, the Fourth Amendment’s normal warrant and probable cause requirements actually do apply to CPS home searches. Nothing in the Fourth Amendment’s text is limited to police investigations, but the Supreme Court has established some exceptions to when a warrant is required for searches beyond criminal investigations. For example, the Court has permitted dragnet searches of every home in any area without individualized suspicion when those searches are limited in nature to meet a public need such as enforcing housing safety codes. (Pp. 23-26.) But the Court has never carved out an exception for CPS searches, which begin with allegations to a state child protection hotline that a specific parent (or guardian) is neglecting or abusing their children. (Pp. 47-49.) And CPS searches are quite invasive, featuring inspections of “a family’s most intimate spaces – their bedrooms, bathrooms and kitchen cabinets.” (P. 55.) Continue reading "Ending CPS home searches’ evasion of the Fourth Amendment"
Dec 7, 2022 Roger M. MichalskiCourts Law
Electronic filing has been a mainstay of federal practice for twenty years. It makes filing more convenient and cheaper than regular mail or personal delivery. The Federal Judicial Center (“FJC”) learned from federal clerks of court that pro se litigants sometimes can use the federal courts’ Case Management/Electronic Case Files (CM/ECF) system and sometimes not. In response to a request by the federal rules committee’s working group on pro se electronic filing, the FJC conducted this study of where, when, and how pro se litigants can electronically file.
The FJC reached out to seventy-nine [out of 190] clerks of court, all but one of whom agreed to participate in [the] study. Using “loosely structured interview[s]” the FJC asked each a range of questions, including whether pro se litigants, prisoners, and unrepresented bankruptcy filers (e.g. pro se creditors) can file electronically; what they must do to become electronic filers; whether pro se litigants can initiate cases directly in CM/ECF; whether the court ever accepts filings by email, fax, or electronic drop box; signature requirements; the existence, location, and use of physical drop boxes; and how they time-stamp drop box items.
The main contribution of this article is to provide a richly textured, nuanced, nitty-gritty account of electronic filings by pro se litigants. It takes time and care to examine the differences between submitting a document to a court and filing a document; between initiating a case and filing in an existing case; between NextGen CM/ECF and previous generation CM/ECF; among civil, criminal, and bankruptcy cases; and between prisoner and non-prisoner pro se litigants. Continue reading "The Swift Completion of Their Appointed Rounds"
Dec 6, 2022 Elizabeth JohCriminal Law
It’s 2022. A patient arrives at an emergency room and says she needs care for an unexpected miscarriage. During her intake procedures, a nurse, suspecting that the miscarriage was the result of a self-managed abortion, calls over a police officer there accompanying another patient. Nearly all abortions are now illegal in the state. When the police officer starts to ask questions, the patient says she wants to consult a lawyer. The nurse, now treating the patient, suggests it would be “best” if she answered the questions. So she does.
This hypothetical isn’t part of Cops in Scrubs, a recent article by Ji Seon Song, but it very well could be. As Song has written about before, the emergency room and the hospital bed are not usually thought of as places for policing, but they should be. Police routinely spend time in places where people in situations of extreme vulnerability sometimes find themselves also targets of criminal investigation. And doctors and nurses frequently act as willing partners to the police. That is a problem, as Song points out, because their positions of authority and expertise blur the lines of aid and coercion for patients who find out they are also suspects. Continue reading "Healthcare as Policing"
Dec 5, 2022 Eyal ZamirContracts
Much of contract law—including the doctrines pertaining to contract formation and to defects in the contracting process (such as mistake and duress)—revolves around the question of whether the parties have expressed a valid will or consent. Drawing the line between valid and invalid consent preoccupies other spheres of law as well, such as tort law (for example, in the context of consent to a medical treatment) and criminal law (e.g., the distinction between voluntary sex and rape).
In contract law, special challenges are posed by the fact that nowadays the great majority of contracts (some would say 95% to 99% of the written contracts) are made through standard forms, where one party—be it a consumer or a commercial customer—does not meaningfully participate in setting the terms of the transaction. In fact, practically no one reads the terms of the standard forms before expressing his or her consent. This is true not only when signing a form in a bank or a store (where reading the contract before signing it may upset the people waiting in line), but also when contracting online in the comfort of one’s home or office (Bakos, Marotta-Wurgler and Trossen 2014). Not only people do not actually read contracts before signing or clicking their consent; even if they wanted to, there is practically no way they could read all the contracts and other types of information they are constantly bombarded with by commercial firms, governmental agencies, and other institutions (Ben-Shahar and Schneider 2014).
How can legal policymakers, including courts, hold that people consent to terms that they do not (and practically cannot) read before making the contract? Joanna Demaree-Cotton and Roseanna Sommers’ experimental study in Autonomy and the Folk Concept of Valid Consent may provide an interesting answer to this lingering question. The authors distinguish between people’s capacity to make free and autonomous decisions, and the exercise of this capacity. Even when people have the capacity to rationally make a decision that reflects their true will, they do not always use this capacity. Should a consent given by a person who has the capacity to make a free and autonomous decision be considered valid, or should it be considered valid only if the person has actually exercised that capacity? Continue reading "Commonsense Consent and Contract Law"
Dec 2, 2022 Leah LitmanConstitutional Law
A National Law Journal article described how, in keeping with prior Democratic administrations, President Biden has relied less on clerkship experience—or at least a particular kind of clerkship experience—than prior Republican administrations. The article observed that while “the road to the bench for many Trump nominees ran through the chambers of a handful of particular judges and justices” (such as Justices Thomas and Scalia), “Biden has relied far less on feeder judges in his nominations.”
Why might that be? And is that a good or a bad thing? A recently published article by Brandon Hasbrouck offers one way of thinking through this. In Movement Judges, Hasbrouck writes movingly (no pun intended) about the importance of appointing jurists “who understand[] that our Constitution contains the democracy-affirming tools we need to dismantle systems of oppression”—judges who “consistently bear in mind the consequences cases have for individuals’ real lives beyond the courtroom.” (Full disclosure: I’m thanked in the article’s acknowledgments for comments on a draft.) Hasbrouck further describes a movement judge as a jurist who is “more committed to shifting fundamental understandings of how the law operates.” And he contrasts these judges and the strategies for appointing these judges with the kinds of judges and the kinds of strategies that Republican administrations have pursued; Hasbrouck describes the Republican strategy as a top-down, hierarchical approach to judicial selection that may have advanced the “conservative legal movement’s” goals, but does not offer the kind of sociological or democratic legitimacy that movement judging would. Continue reading "Movement on Judges"
Dec 1, 2022 Margaret KwokaAdministrative Law
Christopher J. Morten,
Publicizing Corporate Secrets, 171
U. Pa. L. Rev. __ (forthcoming 2023), available at
SSRN.
There has long been great debate about the extent to which the public should have access to government-held information that concerns private businesses. Primarily sought through requests made under the Freedom of Information Act (FOIA), this type of information is often claimed exempt from mandatory disclosure under FOIA’s Exemption 4, which covers trade secrets and confidential commercial or financial information obtained from a third party. But the state of the law has been evolving in an unsatisfactory way. For example, Sonia Katyal and Charles Graves have a recent searing critique of the over-application of the trade secrets doctrine generally, and as I reviewed a couple of years ago, Deepa Varadarajan brilliantly takes apart the justifications for the sweeping expanse of Exemption 4 specifically. Both pieces, and others, have pointed out the expansion of commercial secrecy beyond the traditional justification to protect competitive innovations. Calls for reform, such as this recently proposed legislation, have typically centered on cabining the trade secrets protections to apply more narrowly, thus rebalancing the interests in public transparency against those of business secrecy.
This line of scholarship is rich and worthy, but Christopher Morten’s outstanding forthcoming article, Publishing Corporate Secrets, finds a fresh third angle to the problem, rejecting the idea that line drawing is even necessary and embracing as a solution a middle ground between full disclosure and guarded secret keeping. Are you intrigued by the idea that the government might be able to publish important information without first deciding whether it constitutes a trade secret? Or that there is a way to publish trade secrets for the social good without competitors profiting from it? So was I. Read on. Continue reading "Against Government’s Reification of Business Secrecy"
Nov 30, 2022 Anne Marie LofasoWork Law
In Text Is Not Enough, Anuj Desai analyzes the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that it is unlawful for employers to fire individuals merely because they are gay or transgender, to raise several points about the Court’s favorite interpretative tool, textualism. Professor Desai shows that—contrary to the “conventional wisdom” that the Bostock majority and dissenting opinions showcase “dueling examples of textualism”—textual analysis is insufficient to decide the question whether the term “sex” includes sexual orientation for purposes of Title VII. (P. 1.) Accordingly, “in difficult, contested cases, statutory interpretation is unavoidably a multimodal enterprise that involves consideration of, at least, text, semantic context, statutory purpose, history (statutory, legislative, social, and political), social context, precedent, moral judgment, and consequentialist reasoning.” (P. 3.)
Bostock comprises three consolidated cases, only two of which Professor Desai examines: Bostock itself, where the county employer discharged Gerald Lynn Bostock, a Child Welfare Services Coordinator, when his co-workers discovered that he played for a gay recreational softball league; and Altitude Express v. Zarda, where a skydiving company fired one of its instructors when a customer complained that he was gay. Both cases raise the legal question of whether employment discrimination because of sexual orientation constitutes discrimination “because of…sex” within the meaning of Section 703(a)(1) of Title VII. Justice Gorsuch’s majority opinion says yes; Justice Alito’s and Justice Kavanaugh’s dissenting opinions say no. All three Justices claim that the text answers the question to support their distinct conclusions. Continue reading "Dueling Textualisms or Multimodal Analysis? Using Bostock to Show Why No One Is Really a Textualist"
Nov 29, 2022 Phyllis C. TaiteTrusts & Estates
Attorney Matthew Van Leer-Greenberg evaluates the continued relevance of family limited partnerships (“FLPs”) in estate planning. FLPs have been excellent tools for asset protection, continuity of control, succession planning, and attainment of substantial tax benefits. With other options such as limited liablity companies and corporations offering some of the benefits of FLPs, Leer-Greenberg explores whether recent cases have diluted key benefits of FLPs—namely, valuation discounts and exclusion from the gross estate for estate tax purposes.
In Family Limited Parnerships: Are They Still a Viable Weapon in the Estate Planner’s Arsenal?, Leer-Greenberg begins by discussing Internal Revenue Code (“IRC”) § 2036, a key provision for tax planning benefits of FLPs that generally requires inclusion of transfers with a retained life estate in the decedent’s gross estate. FLPs can be structured in ways that remove the transfer from the transferor’s gross estate at death while discounting the value of the lifetime transfer for purposes of the gift tax during life. To achieve the intended outcome from a transfer to a FLP, the transferor must give up control and make a bona fide gift or sale of the interest. Continue reading "Sometimes the Road Is Less Traveled Because It’s the Wrong Direction"
