Oct 10, 2022 Linda S. MullenixCourts Law
William S. Dodge, Maggie Gardner, & Christopher A. Whytock,
The Many State Doctrines of Forum Non Conveniens, 72
Duke L.J. __ (forthcoming 2023), available at
SSRN.
If there is a topic in the whirlwind course that is now Civil Procedure that law professors give relatively short shrift to, it is the doctrine of forum non conveniens. Sandwiched among personal jurisdiction, venue, and subject matter jurisdiction, forum non conveniens is the fly-over country of procedure land. Procedure teachers typically have enough time to hit the highlights: Gulf Oil Co. v. Gilbert and Piper Aircraft v. Reyno. This cursory exploration of forum non conveniens usually ends with the passing observation that states, too, have their own doctrines of forum non conveniens.
Dodge, Gardner, and Whytock have undertaken the definitive study of state doctrines of forum non conveniens, which I view with no small degree of admiration. The authors are to be commended for delving into the largely ignored landscape of state procedural law, which is always a challenging task. Their study answers practically everything you might ever want to know about federal and state forum non conveniens and provides law professors with substantial data to voice something more than passing reference to state doctrines. More importantly, the authors locate their findings in a conversation about procedural federalism—how courts and rule makers spread procedural innovations throughout the state and federal systems through a process of diffusion. Continue reading "Deconstructing Forum Non Conveniens in the Context of Procedural Federalism"
Oct 7, 2022 Rachel RebouchéFamily Law
Laura T. Kessler,
Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law, 108
Cornell L. Rev. __ (forthcoming 2023), available at
SSRN.
Professor Laura Kessler’s new article, Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law, forthcoming in the Cornell Law Review, begins with the graphic and powerful retelling of five miscarriages. Her five miscarriages. She does not mince words; she does not, as she writes, believe that the experiences can “sound and look pretty.” (P. 1.) She soon reveals the reason for personal storytelling, which is to challenge the silence that surrounds pregnancy loss and to shine a light on this common yet often hidden experience.
Although there is copious scholarship on pregnancy and work, there is very little in the legal literature on miscarriage, specifically, and employment law. In mapping how the laws governing the workplace make miscarriage invisible, this article asks us both to see miscarriage as part of workers’ lives, demanding accommodation, as well as to think about how workplaces contribute to pregnancy loss. Below, I explore three important theoretical and practical contributions of the article before turning to the difficulty of defining pregnancy, miscarriage, and abortion. Continue reading "The Employment Law of Pregnancy Loss"
Oct 6, 2022 Jessica M. EaglinCriminal Law
Fanna Gamal,
The Miseducation of Carceral Reform, 69
UCLA L. Rev. _ (forthcoming 2022), available at
SSRN.
Educate, don’t incarcerate. Schools, not prisons.
The call to invest in institutions of care, not prisons and carceral surveillance has grown in popularity in legal and policy circles in recent years. But how should we spend our money to build a world that is safe and equitable for all? A popular response centers on schools. In her forthcoming article,The Miseducation of Carceral Reform, Fanna Gamal critiques this popular response. She contends that there is nothing inherently benevolent about investment in schools over prison. Yet if we take seriously the idea of reinvestment beyond that conceptual confine, we might begin to imagine a transformative pathway forward. Because her work challenges readers to confront the shortcomings in an underlying assumption central to criminal legal reform efforts in recent years, this article is a must-read for anyone curious about the connection between criminal legal reform and education in the era of mass incarceration. Continue reading "Reimagining Reinvestment"
Oct 5, 2022 Bill BrattonCorporate Law
Mark Roe,
Corporate Purpose and Corporate Competition,
Euro. Corp. Governance Inst. (forthcoming 2023), available at
SSRN.
There has been a subtle shift in the standard academic account of shareholder primacy. The touchstone citation for shareholder primacy used to be Jensen and Meckling’s famous 1976 paper on the theory of the firm. This has been displaced by Milton Friedman’s equally famous takedown of corporate social responsibility in 1970 on the pages of the Sunday New York Times. The shift in the citation pattern follows a shift in the leading discussion points. Where people once worried that agency costs were burning up billions of dollars of shareholder value, now, with agency cost containment and the emergence of ESG investing along with movement towards social welfare enhancement as corporate purpose, shareholders sacrifice their own returns for the greater good (or at least make gestures in that direction). A formidable task results for academic corporate law. It needs to reconstruct its own paradigm to explain and justify this turn to social responsibility. Friedman as a result emerges as the fundamental theory-giver rather than as a “but cf.” cite in a footnote describing corporate social responsibility as a related but irrelevant policy discussion.
Friedman’s New York Times essay expanded on a handful of pages in his book on political economy, Capitalism and Freedom, first published in 1962. We there come across a structural observation heretofore missing in discussions about ESG, corporate purpose, and the voting habits of institutional shareholders. Friedman turned to CSR in a chapter on monopoly, observing that the manager of a corporate entity operating as a pure competitor had no room to worry about CSR. The managers of a producer possessing monopoly power, in contrast, had rents to dispose of and allocative choices to make. CSR concerns are thereby conceptually tied to and perhaps limited by market power.
It is a powerful point. Kudos to Mark Roe for bringing it to bear on today’s governance discussion in his forthcoming article, Corporate Purpose and Corporate Competition. Continue reading "The Complicated Business of Corporate Purpose"
Oct 4, 2022 Robert HillmanContracts
Adam J. Levitin,
Not Your Keys, Not Your Coins: Unpriced Credit Risk in Cryptocurrency, 101
Tex. L. Rev. _ (forthcoming 2022), available at
SSRN.
Not Your Keys, Not Your Coins: Unpriced Credit Risk in Cryptocurrency, by Professor Adam J. Levitin, is a must read for anyone writing about or just interested in (or even trying to understand) the world of digital currency. The article is filled with important information and explanations about cryptocurrency, cryptocurrency exchanges, the language and meaning of investor agreements, and current and proposed regulation. The article nonetheless has a particular concern: It focuses on the risks investors face if a cryptocurrency exchange, which not only facilitates trades between sellers and buyers, but also serves as custodian for their cryptocurrency, becomes insolvent. Such an issue, the article points out, likely escapes many investors passively holding their cryptocurrencies in such a custodial account (hence the title’s reference to “unpriced credit risk”). Although no U.S. exchange has yet filed for bankruptcy, the article posits its inevitability in part because of the likelihood of exchange hacking or poor exchange investment strategies. In fact, as I write this JOT, cryptocurrency values are plummeting, raising questions about their future.
Although Not Your Keys discusses an assortment of exchange account arrangements, the article focuses on a particular common one: Cryptocurrency is held in a custodial account, but for various reasons well documented in the article, the exchange has exclusive access to the cryptocurrency and comingles the asset with other investors’ holdings. Further, the custodial account may “lull customers with misleading language about ‘ownership’ and ‘title.’”(P. 52.) In such instances, investors face an insolvency risk possibly unknown to them. The bankruptcy court may treat the co-mingled cryptocurrency as the property of the exchange, with investors holding only a general creditor contract right. This is crucial because in such circumstances, customers must compete with all unsecured creditors of the bankrupt exchange after secured creditors and others with priority rights have taken assets off the top. Continue reading "Cryptocurrency Custodial Arrangements: A Red Flag"
Oct 3, 2022 Helen NortonConstitutional Law
At a time when it’s all too easy to dump on the press, it may be surprising to find press law scholar Erin Carroll, a former journalist herself, adding to the criticism. Yet in News as Surveillance, a symposium essay, she illuminates “how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well.”
21st-century technologies now empower platforms to collect and aggregate information about us, and then to use this information to influence our choices to their own advantage, and in ways that we would resist if we were aware of their efforts. More specifically, platforms’ surveillance of our reading habits and preferences enables them to design and deploy interfaces that change our decisions about when to buy, click on, read, or forward specific content. Informed by data surveillance and fine-tuned through A-B testing, these interfaces can double, triple, even quadruple our willingness to accept online offers and requests. Continue reading "The Press’s Responsibilities as a First Amendment Institution"
Sep 30, 2022 Jodi ShortAdministrative Law
A “politics of care” has gained prominence in policy advocacy responses to the pandemic and the broad social and economic displacements and inequities it has caused and revealed. Policies such as universal preschool, funding for childcare facilities, tax credits for child and elder care, criminal justice reform, addressing systemic racism, and rebuilding of public infrastructure have been justified as ways to recognize that caregiving, which allows us all to survive, grow, and flourish, is a primary public value. Indeed, on the precipice of winning the presidency, Joe Biden embraced a vision of the President’s responsibility that includes a “duty of care for all Americans.”
In Public Care in Public Law: Structure, Procedure, and Purpose, Blake Emerson seeks to translate the growing resonance of the “politics of care” into an animating principle of public law, grounding U.S. statutory, administrative, and constitutional law in a legal principle of public care that obligates public officials to attend to the needs and values of those they govern. Emerson’s account is both descriptive and normative. He makes the case that the public care principle can be found in existing statutory, administrative, and constitutional law. And his project in this piece is to foreground that principle and claim its essential primacy. Continue reading "Legalizing the Politics of Care: The Search for the Moral Foundations of Administrative Law"
Sep 29, 2022 Deepa Das AcevedoWork Law
Franchising is hardly a recent arrival to the American labor landscape, and yet there always seems to be something new and shocking to say about it. In Franchisor Power as Employment Control, Andrew Elmore and Kati L. Griffith weave together insights that have been percolating in legal and social science scholarship and add in some illuminating perspective for a new spin on the franchising model.
Unlike product franchising, which makes occasional appearances in the 1L Torts curriculum, business-format franchising receives little attention outside the work law universe. This has always struck me as odd: Tesla may still be considered a disruptor for selling directly to the public, but the type of product franchising strategy it’s famous for eschewing is now less ubiquitous—and less cultural influential—than the business-format franchising of a McDonald’s or a Domino’s. To a great and growing degree, we live in a franchised world, one where the sign on the door (or on the uniform, or delivery box) encourages us as consumers to see unitary corporate identity where there is none. At the same time, contracts and manuals demand that courts see independent and equally sophisticated actors where there are none. Despite this puzzling and omnipresent set of circumstances, business-format franchising continues to receive little attention in mainstream legal scholarship. Continue reading "Would You Like Rights With That?"
Sep 28, 2022 Solangel MaldonadoTrusts & Estates
I must admit that I never followed Britney Spears until a colleague pointed out that her life was a family law exam in the making. The annulment of her 55-hour marriage, followed by her secret wedding to Kevin Federline and their very public divorce and custody battle allowed me to bring pop culture and Hollywood drama to my Family Law course. Spears’s life is once again the subject of discussion in law school classrooms, this time in Trusts & Estates courses. Spears’s lack of control over her life and finances while under a guardianship brought to light the injustices of guardianship systems that, despite significant reforms, restrict the rights of persons with cognitive, intellectual, or developmental disabilities (CIDD) to make personal and financial decisions. Few people, however, have considered why the law deprives persons with CIDD of the right to make decisions about their property at death, when their financial decisions can no longer benefit or harm them. This is the question driving Weisbord and Horton’s The Future of Testamentary Capacity.
Weisbord and Horton examine reforms to guardianship laws that aim to preserve the freedoms of persons with CIDD as much as possible, provide due process protections, including the right to participate in guardianship proceedings, and shift away from surrogate decisionmaking toward supportive decisionmaking—a model designed to help persons with CIDD make their own decisions with the support of others. They then explore why similar reforms have not been extended to testators and whether they should be. Weisbord and Horton demonstrate that while guardianships laws in many states increasingly try to preserve and facilitate the autonomy and decisionmaking ability of persons with CIDD, the law of wills continues to deprive them of the right to devise their property at death. A person who lacks testamentary capacity cannot make a will, and under the non-delegation doctrine, their guardian (or agent acting under a power of attorney) cannot make one for them. In short, persons who lack testamentary capacity are consigned to intestacy. Moreover, while persons who are the subject of guardianship petitions have a right to participate in proceedings about their capacity, in most jurisdictions testators cannot do the same as there is no mechanism for assessing their capacity until the will is probated—after their death. Continue reading "Guardianship Reform: Lessons for Reforming Testamentary Capacity Laws"
Sep 27, 2022 Gregory KeatingTorts
In Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory, Mark Geistfeld advances a powerful, and often persuasive, challenge to the negligence-centered conception of product lability law advanced by the Restatement (Third) of Torts: Products Liability (1998). In the courts, the Restatement (Third) has provoked controversy, but in the Academy it has become the prevailing orthodoxy. Section 402A of the Restatement (Second) stated a strict liability conception of product liability. The Restatement (Third) takes manufacturing defects to be subject to strict (enterprise) liability, but it asserts that design and warning defects should be governed exclusively by negligence norms. In Strict Products Liability 2.0, Professor Geistfeld sets out to vindicate the view—officially subscribed to by the majority of state courts today—that product liability law is strict and that its strictness extends to cover design as well as manufacturing defects. Whereas the Restatement (Third) sees the strict liability rhetoric of courts as a mere cover for the negligence conceptions that do the real work, Geistfeld argues that courts have been speaking warranty conceptions all along and these warranty conceptions construct a strict liability body of law. His thoughtful, deeply meditated, paper ought to awaken the Academy from its dogmatic slumbers.
For Geistfeld, the issue of the strictness of design defect liability turns on the role played by consumer expectations in determining design defectiveness. Section 402A of the Restatement (Second) had defined a product defect in part as “a condition not contemplated by the ultimate consumer”. In a comment, the Restatement (Second) explained that the product “must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Interpreting this language, many state courts had a adopted a “consumer expectation” test of product defectiveness, often in conjunction with a risk-utility test. In Barker v. Lull Engineering Co., for example, the California Supreme Court had articulated a products liability regime containing both risk-utility and consumer expectation tests of defective design. The Restatement (Third) rejects the “consumer expectation” test of product defectiveness “as an independent standard for judging” product design defects. In order to prove a product design defective, plaintiffs must show that the design fails a foresight-based “risk-utility” test. This requires proposing a “feasible alternative design” and proving both that this alternative design would have averted the harm to the plaintiff and that it balances product risks and benefits in a superior fashion. Continue reading "Should the Expectations of Consumers Matter?"
