Nov 28, 2022 Stacy-Ann ElvyTechnology Law
Consumers accessing goods and services online are inundated with numerous disclosures, privacy policies, end user license agreements and terms and conditions. In connection with the so-called “duty to read,” consumers have historically been presumed and expected to fully review contract terms as part of the contract-making process. Yet, as several scholars have observed, consumers do not appear to consistently review contract terms: what some have called the “no-reading problem.” The failure of consumers to review and understand contract provisions before manifesting assent may incentivize companies to offer one-sided contracts with terms that are primarily beneficial to businesses.
In their new article, Contracts in the Age of Smart Readers, Professors Yonathan A. Arbel and Samuel Becher make a noteworthy contribution to scholarship in the technology and contract law fields by highlighting how nascent technological advancements in language models associated with artificial intelligence can disrupt the status quo. Their powerful article adds to an existing body of scholarship exploring the important connection between technological developments and what the authors describe as one of the underlying justifications for legal intervention in consumer transactions: the “no reading problem.” Continue reading "Novel Language Models as a Technological Solution to the No-Reading Problem"
Nov 25, 2022 Ronen AvrahamTorts
Yehuda Adar & Ronen Perry,
Negligence Without Harm, __
Geo. L.J. __, (forthcoming), available at
SSRN.
I like papers that go against well-established conventions, theories, and practices–papers that punch up. Such is Yehuda Adar’s and Ronen Perry’s (hereinafter A&P) new paper titled: Negligence Without Harm, which argues that victims could sue and receive remedies for a tort of negligence even if they have not suffered any harm.
For at least a century, every first-year common law student has known that the tort of negligence is comprised of four elements: duty of care, breach of duty, causation, and harm; and that to win on a negligence claim, the plaintiff must prove all these elements (as well as to overcome defenses such as contributory negligence). Continue reading "Punching up on the Tort of Negligence"
Nov 24, 2022 Charlotte CraneTax Law
In the most recent update of the Congressional Research Service pamphlet, Corporate Tax Reform: Issues for Congress, RL34229 (2021), Jane Gravelle presents a survey of the recent economic literature that has been invoked to support various changes in the corporate income tax. Gravelle is an economist who has spent her career bridging the gap between academic approaches to tax and the nitty gritty of tax policymaking within the beltway. In this document she explains how little anyone knows about the corporate income tax in the US.
As Gravelle points out, the corporate income tax has shrunk in importance in the last 70 years, declining from 30% of federal tax revenues and 5.6% of GDP to less than 10% of federal tax revenues and less than 3% of GDP. Of course, at the beginning of that time period, the corporate income tax could be used for the purposes of most economic analysis as essentially the equivalent of all business income taxes. As Gravelle points out, the rise of other business forms that afford the benefits of incorporation without attracting the corporate tax is responsible for a large portion of this shift. Sheltering through offshore entities has contributed much of the rest. Continue reading "What Do We Know About the US Corporate Income Tax?"
Nov 23, 2022 Sarah SchindlerProperty
Michael Pollack,
Sidewalk Government (Aug. 23, 2022), available in draft at
SSRN.
In his forthcoming article, Sidewalk Government, Michael Pollack explores the nature and governance of sidewalks in the U.S. through both a property law and local government lens. While most of us have likely used a sidewalk to get from one place to another, we often don’t think about the many complex ways that localities govern these critical spaces.
When I moved to Maine over a decade ago, I was surprised to learn that I was personally responsible for shoveling snow off the sidewalk in front of my house. A few years later, the city expanded the boundaries of the downtown Business Improvement District (“BID”) to cover the other side of my street, after which my across-the-street neighbors no longer had to shovel; the BID did it for them. Continue reading "Who Controls the Sidewalks?"
Nov 22, 2022 Sergio J. CamposCourts Law
Legal scholarship comes in a variety of forms. One form that I like lots is the law review online supplement. Online supplements allow scholars to address cutting-edge issues without the delay of the normal publication process. The submissions also tend to be shorter and thus more accessible, not only to scholars but to practitioners, judges, and policymakers in the field. A good piece will not only efficiently discuss an emerging legal trend but suggest a legal reform or solution that helps out on-the-ground practitioners sooner rather than later.
Michael Francus’s wonderful piece on the Texas Two-Step hits these marks. The piece, which is a joy to read, discusses the emergence of the “Texas Two-Step” as a procedure to deal with mass tort liability. For the uninitiated, defendants often use bankruptcy to resolve mass-tort liability. Continue reading "Cutting Into the Texas Two-Step"
Nov 21, 2022 Marco JimenezLexRemedies
In a recent essay, Preliminary Damages, Professor Gideon Parchomovsky and Justice Alex Stein have not only come up with a creative way to help indigent and/or poorly-financed plaintiffs finance their lawsuits against intransigent and deep-pocketed defendants, but in the process, they have plugged an important philosophical gap in the remedies literature by proposing the novel remedy of “preliminary damages,” a legal remedy mirroring its equitable counterpart “preliminary injunctions.” There is a lot in this essay that should be of particular interest to Remedies scholars. This Jot cannot do justice to their piece in so short a space, but I hope to offer the reader at least a small taste of this delicious article, which may entice some readers to sit down and enjoy the full course.
In short, their argument is as follows: it is a mere historical accident that courts of equity, whose primary form of relief was the injunction, and courts of law, whose primary form of relief was money damages, grew up independently. However, as these two courts have long since been merged in most states, there is no good reason for a court today to offer one type of remedy (i.e., preliminary injunctions) that happens to have developed in a court of equity while failing to offer its legal counterpart (i.e., preliminary damages). Or, as the authors ask in their article, “If courts can award plaintiffs preliminary injunctions before the conclusion of a trial, why can’t they award preliminary damages? Or, contrariwise, if no damages can be awarded until liability is found, how is it that preliminary injunctions can be granted?” (P. 242.) The answer, to be sure, is purely historical, and by bringing this new form of damages to the attention of judges and scholars, they hope to not only correct this historical anomaly, but to make it easier for indigent plaintiffs to overcome the sometimes nefarious tactics of sophisticated defendants whose deep pockets, intransigence, and policy of “deny, delay, defend,” (P. 256) rather than the strength of their defense, keeps many legal wrongs from being righted by our courts. Continue reading "Expanding the Remedial Toolbox: A Legal Analogue to Preliminary Injunctions"
Nov 18, 2022 Scott CummingsLegal Profession
New Legal Realism Goes to Law School is a chapter in a book on New Legal Realism (NLR)—a jurisprudential movement studying the role of law in everyday life through empirical methods—that takes on the specific question of how to advance the self-defined NLR aspiration to “integrate law and social science to form a truly interdisciplinary approach to law.” (P. 191.) In this piece, Taylor Poppe focuses on one possible way of advancing that goal: improving the teaching of empiricism (and interdisciplinarity through empiricism) in law school by not just training “empiricists to communicate with lawyers and legal scholars, but also…building the bridge from the other side.” (P. 192.) To do so, she argues that NLR “must convince legal scholars and practitioners of the value of interdisciplinarity and must ensure they are equipped with the skills and knowledge needed to engage with empirical data and analysis,” leading her to consider changing legal education through “the inclusion of training in empirical methods in the law school curriculum, the adoption of evidence-based inclusive pedagogy, and the integration of social science insights into the explication of legal doctrine.” (Id.)
Taylor Poppe begins by canvassing impediments to greater interdisciplinary integration. And this is something she is quite good at: crystallizing the existing landscape by pulling together different types of materials and showing how they work together to create interlocking barriers. For example, she lays aim at the ABA, which does not promote engagement with empiricism in its accreditation standards, and critiques “the formal and hidden curricula of law school and the dominant pedagogical techniques,” (P. 194) particularly the Socratic method and winner-take-all-exam, arguing that the “continued use of these methods despite awareness of their flaws represents a profound dismissal of empirical knowledge.” (P. 195.) This, along with the rejection of evidence-based policy analysis, results in law school teaching “future lawyers and legal scholars that law stands apart as a discipline, that conclusions about the functioning of law in the world do not require recourse to empirical evidence, and that neither law-making nor legal practice require fluency in methods of empirical analysis.” (Id.) Continue reading "A New Realist Perspective on How to Make Law School Better"
Nov 17, 2022 Allison MadarLegal History
In Thrice Condemned: Enslaved Women, Violence, and the Practice of Leniency in Antebellum Virginia Courts, Tamika Y. Nunley examines “the homicides of white Virginians and the enslaved women held responsible for their deaths.” Murder (and attempted murder), she asserts, “was a form of enslaved women’s resistance” and not all of the accused women who stood trial in nineteenth-century Virginia were put to death for their crimes. (P. 5.) In fact, some had their sentences commuted in “what nineteenth-century jurists referred to as acts of ‘leniency’ or ‘mercy.’” Nunley argues that these acts of mercy help to illustrate both “competing ideas about the relationship of gender, paternalism, and leniency” and “the contradictions built into the meaning and administration of justice in antebellum Virginia.” (P. 6.)
Nunley brings together a number of fields of historical study in her work, as she explores not only slavery and the laws of Virginia, but also gender, resistance, and local legal culture. Her engagement with the work of Philip J. Schwarz’s Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705-1865 (1988) is evident in her title. In Schwarz’s telling, enslaved laborers tried for crimes in Virginia courts were “‘twice condemned’ by southern law and slavery.” (P. 6.) In Nunley’s telling, enslaved women accused of capital crimes were, in fact, thrice condemned. They were not only condemned by southern law and slavery, she argues, but also by the courts’ use of “racialized gender stereotypes” to decide their fates. (P. 6.) Thrice Condemned, then, makes clear the “interconnectedness of gender, slavery, and southern law,” and the variety of ways in which Virginia communities reacted to the convictions of women who violently resisted their enslavement. (P. 34.) Continue reading "Enslaved Women’s Resistance, Leniency, and Justice in Nineteenth-Century Virginia Courts"
Nov 16, 2022 Larissa KatzJurisprudence
Aziz Huq,
Property Against Legality: Takings after Cedar Point, 109
Virginia L. Rev. __ (forthcoming 2023), available at
SSRN.
There is a nearly universal assumption in contemporary property theory that clearly defining property rights in terms of exclusion enhances rule of law virtues of clarity, stability and predictability. And there is a corresponding assumption that a rival account, according to which property is a malleable bundle of rights, undermines those same values. Judicial discretion is the main target of this prevailing view: a bundle of rights approach invites courts to configure the content of the “bundle” of rights in socially optimal ways. While there is much to be said for engineering property rights to advance social goals, this can be said against it: it leaves participants in the legal order—litigants, potential trespassers or buyers, even judges—in the dark about what the relevant rights and duties are.
In Property Against Legality, Aziz Huq provides doctrinal and theoretical grounds to doubt this dominant assumption: a stronger right to exclude, he argues, may erode legality. (P. 42.) His point of departure is a recent US Supreme Court case, Cedar Point Nursery v. Hassid. Cedar Point concerned the constitutionality of a California “take access” regulation allowing union organizers to approach agricultural workers on company property three times a day. (P. 16.) The Court concluded that “take access” legislation was an appropriation of the right to exclude third parties—a taking per se. Much of Huq’s article provides a close analysis of Cedar Point itself, which he characterizes as a sharp break from settled takings law. (Id.) He argues that the decision puts property and legality in conflict for two related reasons: (1) it undermines the methodological foundations of takings doctrine by deviating from “ordinary meaning,” (P. 20) “original understandings,” (Pp. 22-23) and “applicable precedent;” (P. 26) and (2) it will lead to more arbitrary power in future, by expanding judicial discretion and enhancing arbitrary private power to decide matters affecting the core interests of other people. Continue reading "When Property and Legality Diverge"
Nov 15, 2022 Jessica SilbeyIntellectual Property Law
Professor Kara Swanson’s latest article is a remarkable example of legal historical scholarship that excavates stories from the past to illuminate the present. It is chock full of archival evidence and historical analysis that explains gaps and silences in the United States patent registry as evidence of marginalized inventors–particularly Black women–who should be named inventors but are not.
The article is arresting reading for anyone interested in antebellum history, intellectual property, and the intersection of racism and sexism in law. Mostly, I am grateful to Professor Swanson for doing the obviously very hard work of digging through archives, reading microfiche, and scouring other primary and secondary sources for what she calls the “whispers” of Black women inventors of our past whose stories need to be told to change the narrative of U.S. inventorship. Continue reading "Centering Black Women in Patent History"
