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"
Nov 1, 2022 Jack BeermannAdministrative Law
Adherents to the unitary executive theory, which posits that the Constitution grants the President complete and absolute control over the execution of the law, claim that their view is required by the text of the Constitution, especially Article II’s vesting clause which proclaims that the “Executive Power shall be vested in a President of the United States of America.” As Justice Scalia put it, “this does not mean some of the executive power, but all of the executive power.” In Scalia’s view, the separation of powers demands that the President must have the power even to prevent the prosecution of Executive Branch officials, including those who have engaged in serious job-related criminal misconduct that threatens to undermine the accountability of the Executive Branch. Adherents to the theory on the Supreme Court may be in the process of dismantling all checks Congress has placed on presidential control over the administration of the law, including, among others, limitations on removal of Officers of the United States, the discretion of agency experts, and the independence of independent agencies.
Even assuming that Justice Scalia’s heavily textualist form of originalism is an appropriate methodology for applying the Constitution, the unitary executive theory has never successfully accounted for what, in light of the theory, must be puzzling constitutional text. Examples include, the provision that grants the President the right to “require the Opinion, in writing, of the principal Officer in each of the executive Department,” the Constitution’s expression of the President’s role in carrying out federal law as a duty (not a power) to “take Care that the Laws be faithfully executed” and the Constitution’s assignment to Congress of the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution…all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” As one of many possible examples of how this language undercuts the absolutist claims underlying the unitary executive theory, if the Constitution already establishes that the President personally possesses all possible executive power, why would we need a clause granting the President the power to compel department heads to answer his queries? Enter Blake Emerson’s excellent article The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller. Continue reading "The Role of Departments in the Design of the Federal Government"
Oct 31, 2022 Nora Freeman EngstromLegal Profession
In Judges and the Deregulation of the Lawyer’s Monopoly, co-authors Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, and Alyx Mark make a surprising discovery, with significant implications for the current debate concerning the delivery of legal services.
To understand their paper—and why it’s so important—a bit of background is necessary.
Right now, across the United States, lawyers’ monopoly over the provision of legal services is getting overdue scrutiny—and, in some states, professional lines are in flux. Arizona, Washington, Minnesota, and Utah have licensed legal technicians, essentially nurse practitioners for law. In New York, a nonprofit provider called Upsolve has filed an innovative and well-coordinated legal challenge to curtail that state’s unauthorized practice of law restriction, insisting that the law, as applied, violates the First Amendment. And, in a number of other states, including California, Colorado, Michigan, and North Carolina, policymakers are exploring whether—and how—to welcome new legal service providers into the fold. Continue reading "Effective Deregulation: A Look Under the Hood of State Civil Courts"
Oct 31, 2022 Henry L. Chambers, Jr.Work Law
In their article Employment Practices Liability Insurance and Ex Post Moral Hazard, Erin Meyers and Joni Hirsch argue employers should not be able to fully avoid employment discrimination liability through employment practices liability insurance (EPLI) when the liability results from employer-facilitated discrimination. The authors suggest full coverage under EPLI triggers ex post moral hazard–“[too little] care in reacting to wrongful employment acts” (P. 973) –and improperly lessens the deterrence employment discrimination liability promises. Their legislative solution would mandate employers pay part of the liability and allow public entities “the power to issue uninsurable fines” (P. 985) for liability stemming from employer-facilitated discrimination. The conditions would not apply to liability for employment discrimination by low-level employees for which the employer is vicariously liable.
The article is fascinating. Though it is as much an insurance article as an employment discrimination article, the definition of employer-facilitated discrimination is at the article’s core. The authors define employer-facilitated discrimination to include discrimination stemming from behavior the employer knew about but declined to address, and discrimination resulting from “a business’s failure to set up a reasonable reporting system for wrongful employment acts.” (Pp. 950-51.) That definition of employer facilitation is reasonable, but will necessarily cause employment-discrimination mavens to ponder if it is over-inclusive or under-inclusive. That is much of the article’s charm. Continue reading "Should An Employer Be Allowed To Fully Insure Against Employment Discrimination It Facilitated?"
