Nov 8, 2022 Aya GruberCriminal Law
Guyora Binder and Ekow Yankah’s fascinating new article is essential reading for anyone seeking a deep understanding of the legacy of the massive protests in the wake of George Floyd’s killing. The article reveals that a primary achievement—perhaps the primary achievement—of the agitation, Derek Chauvin’s murder conviction, may not be the racial justice victory people widely believe it to be.
The racial justice uprisings of Summer 2020 constituted the single largest worldwide protest in history. Although the sociopolitical factors underlying the eruption of activism were legion, from the ascendence of Trumpian white nationalism to the rampant health infrastructure inequities that helped Covid to devastate communities of color, it was a single nine minute viral video that galvanized the historical moment. What brought the world into the streets was the heart-wrenching video of Derek Chauvin, hands casually in his pockets, calmly—one might even say professionally—training his knee on the neck of George Floyd, who lay prone and dying and cried out for his mother. In those minutes, the world began to see the police not as the superhero criminal interdictors of ingrained American cultural mythology but as the foot soldiers of the forever war against the poor, minorities, and dissenters. The brutal conduct of the militarized police units tasked with “keeping the peace” during the protests further solidified this notion of the police as violence purveyors rather than interrupters. Continue reading "Criminal “Justice” as Racial Justice?"
Nov 7, 2022 Alexander Boni-SaenzTrusts & Estates
One of the ramifications of the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization is the significant uncertainty it has created about the legal status of various reproductive technologies, given that many states will regulate abortion in ways that impact those technologies as well. In Reimagining Postmortem Conception, Professor Kristine Knaplund provides a comprehensive snapshot of the pre-Dobbs legal landscape regarding postmortem conception using reproductive technology and its effect on inheritance law. This 50-state survey provides an interesting example of the variety of regulatory strategies that can evolve in a contested legal area as well as the difficulties that such a patchwork might entail. For those interested in trusts and estates, family law, and health law, it will be an invaluable read.
Knaplund starts by surveying the current social and legal landscape. Opinion surveys indicate that a majority of Americans support postmortem conception, and that number rises if the decedent consented. On the ground, a small but growing number of people are cryopreserving sperm, ova, and embryos for the purpose of having children in the future, possibly including after death. Further, there have been increasing requests for gamete retrieval from spouses who are recently deceased or exist in a vegetative state. While public sentiment regarding postmortem conception has been trending toward higher levels of approval, states have lacked uniformity in their regulatory response and, in particular, have failed to agree on the impact of postmortem conception on inheritance rights. Twenty-four states have addressed the inheritance question directly, with all but one establishing that postmortem children can inherit from a predeceased parent if certain conditions are met. The other twenty-six states take wildly varying approaches, with courts looking to parentage law or other statutes for clues to solve this legal question.
Posthumous children present two challenges for inheritance law. First, how can lawmakers ensure the orderly administration of estates, given that reproductive material can be stored for years or decades before being used? Second, how can courts determine whether the deceased prospective parent consented to the use of that reproductive material? Continue reading "Posthumous Reproduction and Inheritance Law"
Nov 7, 2022 Robin J. EffronCourts Law
Sir Winston Churchill famously remarked that “democracy is the worst form of Government except for all those other forms that have been tried from time to time.” The witticism endures because the flaws and failures of democracy (in its many forms) are obvious and omnipresent, yet it is hard to defend replacing democracy with pretty much anything else. The same might be said of modern aggregate litigation: it is the worst form of resolving mass harms except for all those other forms that have been tried from time to time. As with democracy, paradigmatic aggregate litigation (class actions and multi-district litigation (MDL) actions) seem to be under perpetual threat, as critics, lawmakers, rulemakers, and judges seek to limit their scope, weaken their effectiveness, or supply alternative means of resolution altogether.
Bankruptcy has emerged in the past few decades as a viable forum for global resolution of mass claims that once were within the exclusive province of state and federal class actions and MDLs. As Lindsey Simon documents in Bankruptcy Grifters, using bankruptcy to aggregate and resolve certain mass harms originates in a fundamental problem of outsized litigation. Sometimes, injured claimants’ present and future claims threaten to overwhelm a defendant who is already insolvent or would be pushed into insolvency in satisfying the claims. This is particularly troublesome in cases involving long-term harm or exposure to toxic products, where the earlier claimants may exhaust the defendants’ existing funds, leaving nothing for later claimants. Bankruptcy offered an attractive forum for aggregating and resolving or settling such claims, and courts cut their teeth on bankruptcy-as-mass-tort-aggregator in the large asbestos cases that overwhelmed courts in the second half of the twentieth century. But while bankruptcy offers limited solutions to aggregate litigation problems in certain situations, the tools to assist the resolution of claims against insolvent or genuinely struggling defendants have attracted an increasing number of “grifters.” Bankruptcy Grifters is a must-read for anyone interested in modern aggregate litigation. It is no longer enough to master the ins and outs of class actions and MDLs; attorneys and scholars must possess a command of bankruptcy tools and procedures that have become an essential element of the aggregate-litigation landscape. Continue reading "Fighting the Grift: The Stubborn Creep of Bankruptcy as a Forum for Aggregate Litigation"
Nov 4, 2022 Tom SimmonsLexElder Law
James Toomey,
The Age of Fraud, 60
Harv. J. on Legis. _ (forthcoming, 2023), available at
SSRN.
In The Age of Fraud, James Toomey challenges a heretofore unchallenged assumption: that elderly persons are more vulnerable to scammers than younger adults. We all unthinkingly assume that the elderly are riper for fraud victimhood. In fact, Toomey’s empirical research reveals, young adults are more often the targets of fraud than older adults. Younger adults are also more susceptible to engaging with and ultimately falling victim to fraud. Perhaps all of our assumptions concerning older adult fraud victims were just a bit of ageism. Older folks, it turns out, do a pretty good job protecting themselves from scammers.
Toomey’s study polled two cohorts: one age 65 and older and another age 25 to 35. Toomey notes: “We tend to think of scams and frauds as primarily a problem for older adults—lonely, trusting, and possibly experiencing cognitive decline.” (P. 2.) We also take for granted that the elderly are more attractive targets to scammers since they may be more affluent. Toomey debunks both assumptions and outlines important policy considerations which necessarily follow. Continue reading "Fraud Reconsidered"
Nov 4, 2022 Paul HorwitzConstitutional Law
The leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization was an embarrassment to the Supreme Court as an institution. Its perpetrator(s) ought to be found out and censured or punished. But consider the leak in a different light: as an experiment in communications. When the final opinion came out on June 24, there was no desperate casting-about to understand it. Of course there were additional opinions, including the dissent, to absorb. But as to the meat of the opinion, there was no spectacle of Supreme Court reporters flipping pages on the steps of the Court, trying to boil down tens of thousands of words in an instant; there was no unnecessary lack of public understanding of the decision. The nation was not happier. But was it better served?
Viewed in that light, these two articles are well-timed. They are also nicely complementary. One, Barry Sullivan and Ramon Feldbrin’s The Supreme Court and the People: Communicating Decisions to the Public, is comparatively oriented and practical in nature, drawing on other constitutional courts’ experience to suggest some basic improvements in Supreme Court communications. The other, David Fontana and Christopher N. Krewson’s The Rhetorical Power of the Supreme Court, is arguably less practical but more ambitious. It argues that extrajudicial discussion by the Justices about the Supreme Court constitutes a “rhetorical power” that can spur more productive public discussion of constitutional law. These are certainly different approaches. But both articles agree that the Court faces a legitimacy problem that can in, some measure, be addressed by better communication. We may doubt the likelihood of the cure. But the prescription is well worth the attention, practically and for its own sake. Continue reading "We Care"
Nov 3, 2022 Michael C. DuffWork Law
Joshua Rosenberg Daneri & Paul Thomas,
Wrong Line: Proposing a New Test for Discrimination under the National Labor Relations Act, 56
U. Mich. J. L. Reform _ (forthcoming 2023), available at
SSRN.
No matter how clear a violation of labor law seems to be, it has to be proven within an administrative agency and upheld, if challenged, by a court. I litigated cases at the National Labor Relations Board (NLRB) for a decade and know full well that, despite how obvious unfair labor practices by Amazon or Starbucks may appear on the surface, they mean little if they cannot be proved before a federal Administrative Law Judge. Within the domain of federal labor law, theories of justice writ large must be fit to rules of evidence and concepts of causation. The recent article, Wrong Line: Proposing a New Test For Discrimination Under The National Labor Relations Act, written by NLRB agents Joshua D. Rosenberg Daneri and Paul A. Thomas (outside their affiliation with the agency) is exactly the kind of work that can help readers explore this fit.
In the kind of union organizing drive that observers are usually interested in, a union arrives on the scene and employees supporting the union are fired. Obviously, this kind of situation has nearly limitless variations. But common to most of them is the employer’s defense: that its decision to fire the employees was not motivated by anti-union considerations. These cases are the “bread and butter” of the NLRB, so how they get litigated is extremely important. The authors argue that the NLRB’s 1980 Wright Line decision, which established how judges are to consider evidence about employer motivation in unlawful termination cases, has for decades gotten these bread and butter “causation” cases wrong. In their view the NLRB should (and is legally able) to revisit Wright Line. Continue reading "Reworking Seminal Ideas of Employer Causation of Unlawful Anti-Union Discrimination"
Nov 3, 2022 Charles O'KelleyCorporate Law
A key problem for corporate directors and a key concern of modern corporation law is the creation and maintenance of management systems designed to identify and optimally reduce the firm’s exposure to internal misconduct and foreseeable external risk. In recent years, that problem has come to include concern for the implications of climate change and globalization. Yet Society and its institutions, including corporations, were inadequately prepared for the Covid-19 pandemic. Why were we so unprepared, and what are the implications of the pandemic for corporation law going forward? To understand the implications of the pandemic, we must understand how it unfolded, what tools were in place to combat it, and how key actors responded to the crisis. While we each experienced the pandemic, and are still living in its shadow, a detailed overarching understanding of what happened would be missing but for a magnificent history of the present, Adam Tooze, Shutdown: How Covid Shook the World’s Economy (2021) (“Shutdown”). The history detailed in Shutdown, though not focused on corporation law as such, reads and can be understood as an extension of the crisis in corporation law theory that was unfolding as the pandemic struck.
For the last decade of the twentieth century and most of the current century, corporate law could be taught comfortably by reference to a near universally recognized governing doctrine. The end of history for corporate law was at hand. Rejecting Adolf Berle’s mid-twentieth-century understanding, corporations were now viewed not as social institutions, but as nexuses of private contracts united by one overriding purpose – the maximization of shareholder value. The role of the board of directors and subordinate officers was not to serve stakeholders or society, other than indirectly, but to pursue shareholders’ wealth-maximization interests. Correspondingly, state corporation law, including common law fiduciary duties, as well as federal securities laws, could best be understood as guardrails designed and implemented to ensure that neither directors nor officers misused their power to pursue ends unrelated to, or counter to, shareholder value maximization. While there was room in this formulation to talk about corporate social responsibility or the importance of stakeholders, such conversations were generally understood to be tangential to a proper understanding of corporation law. Continue reading "Teaching Corporate Law in the Shadow of the Great Acceleration"
Nov 2, 2022 Paul OhmTechnology Law
In the aftermath of the Cambridge Analytica fiasco, Facebook was pummeled by legislators, regulators, and advocates around the globe for their poor privacy practices stemming from the way the company seemed to prioritize growth and profit over other all else. As one small part of a multipronged defense, the company hired four prominent privacy advocates, former fierce critics of the company. The early evidence suggests that these four—and other likeminded Facebook employees—haven’t had much success reorienting the company. As one data point, two years after they were hired, Frances Haugen blew the whistle on how Facebook had not done enough to weed out misinformation, combat threats to democracy, and protect vulnerable teens, again due to a relentless pursuit of growth. To be fair, the Haugen story isn’t only or primarily a privacy fiasco, but it belies the idea that good people in positions of authority have helped the fix the company from within.
This isn’t just a Facebook story. Every large technology company employs people who profess to be privacy advocates in positions of authority, yet their collective efforts do not seem to have had done much to alter the troubling trajectory of their employers’ products and services. Ari Waldman, the deeply interdisciplinary privacy law scholar from Northeastern University, has written a vital and important book investigating why bad privacy outcomes occur at firms that employ well-meaning and well-trained privacy professionals. Drawn from dozens of interviews with software engineers and privacy professionals from many technology companies, Waldman presents a compelling and distressing picture, revealing the way companies constrain the influence of privacy-focused employees, repurposing their work toward serving data extractive goals, eventually redefining privacy law itself in narrow, compliance-focused terms. Continue reading "Why Bad Privacy Happens to Good People"
Nov 2, 2022 Eboni NelsonContracts
For nearly two and half years, we have all been grappling with a global pandemic that has significantly impacted individuals, families, businesses, and global economies. Although COVID-19 has affected everyone in some way, the pandemic’s detrimental impact has been disproportionately felt in low income communities and communities of color. According to Professor Mechele Dickerson, this unfortunate reality is due in part to the fact that many people in these communities were deemed to be essential workers who lacked adequate protections during the pandemic. In her recent thought-provoking essay Protecting the Pandemic Essential Worker, Professor Dickerson argues that federal and state agencies should mandate that businesses enact plans to provide necessary safety protections for low wage essential workers in light of workers’ limited ability to obtain such protections for themselves via employment contracts or collective bargaining agreements.
Professor Dickerson begins her essay with a discussion of how workers within certain industries became designated as essential workers during the pandemic and how such designations exposed workers to greater health risks. She recounts how following President Trump’s essentiality declaration, states used the Department of Homeland Security Cybersecurity & Infrastructure Security Agency’s (CISA) list of “Essential Critical Infrastructure Workers” as their guide when issuing their own declarations, which included workers in sectors such as grocery and convenience stores, first responders, and food and agricultural services. Professor Dickerson asserts that because “COVID-19 declarations transformed generally safe workplaces into potentially lethal ones,” the essentiality designation itself exposed essential workers to greater health risks once they entered such workplaces. Unlike other workers who were able to work remotely within the relative safety of their homes, some essential workers, such as those who worked at meat and poultry processing plants with inadequate ventilation and lax masking and outbreak reporting requirements, experienced higher COVID-19 infection and mortality rates, which detrimentally impacted their lives, families and communities. Continue reading "Pandemic Protections"
Nov 1, 2022 Bethany BergerLexNative Peoples Law
Michael Velchik & Jeffery Zhang,
Restoring Indian Reservation Status: An Empirical Analysis, 40
Yale J. Reg. ___ (forthcoming 2022), available at
SSRN.
In Restoring Indian Reservation Status: An Empirical Analysis, Michael Velchik, and Jeffery Zhang provide some of the most rigorous empirical evidence to date on the economic impact of reservation status. Although I discuss limitations to their data below, the article provides a welcome counterpoint to repeated arguments—to the Supreme Court, Congress, and elsewhere—that affirming reservation boundaries will destroy existing economies.
These assertions gained nationwide attention when the Supreme Court decided McGirt v. Oklahoma. The Court held that Congress had not erased the treaty boundaries of the Muscogee (Creek) Reservation. Lower courts soon applied the decision to hold that the reservations of the Cherokee, Chickasaw, Choctaw, and Seminole Reservations—which occupy the rest of eastern Oklahoma—remained as well. In briefing and oral argument, Oklahoma and its amici insisted that affirming reservation status would be terrible for the safety and economy of the area. I have worked on several reservation boundary cases now, and these kinds of arguments—what Velchik and Zhang call the Falling Sky thesis–are trotted out every time. And for good reason: the Supreme Court allowed current demographics to distort its interpretation of congressional intent in South Dakota v. Yankton Sioux Tribe, and Hagen v. Utah and created an entirely new rule to maintain state jurisdiction over tribal lands within the undiminished Oneida Indian Reservation. (Sherrill v. Oneida Indian Nation of New York.) Continue reading "The Sky Did Not Fall After McGirt v. Oklahoma"
