Jul 22, 2022 Caprice RobertsLexRemedies
Ignacio Cofone,
Privacy Standing, 2022
U. Ill. L. Rev. __ (forthcoming 2022),
available at SSRN.
Data breaches abound, but not every breach results in a cognizable claim. Which violations should constitute actionable injuries? What injury allegations satisfy standing requirements in federal courts? How should courts articulate sufficient cognizable injuries to warrant relief? Professor Ignacio Cofone, in a forthcoming article titled Privacy Standing, offers a framework for answering these questions and guiding courts to more consistent opinions for similarly situated victims.
Standing challenges confound courts resulting in inconsistent rulings. As Cofone notes, “No standing means unenforced rights.” Identifying privacy harms, however, is difficult. The primary obstacle lies in assessing privacy harms, for which Cofone proposes a conceptual solution. Cofone first notes the doctrinal woes of the courts. Courts tend to conflate the issue of privacy loss with Article III standing analysis. The Supreme Court, in Spokeo v. Robins, clarified that plaintiffs seeking relief for privacy injury must pose a cognizable real-world harm. The Court emphasized that the harm must be concrete, but did not further guide lower courts in rendering this assessment. Some circuits find standing doctrines satisfied based on a violation of a statutory privacy right, while other courts find standing not met unless plaintiff shows an additional kind. Examples of additional harm are financial harm or reputational harm. Cofone asserts that both approaches have flaws and should be replaced by a three-step framework that considers the fact-dependent nature of privacy injuries. Continue reading "Conceptions of Privacy Shouldn’t Stand in the Way of Privacy Standing"
Jul 21, 2022 Howard M. WassermanCourts Law
Zachary D. Clopton,
Catch and Kill Jurisdiction, _
Mich. L. Rev. _ (forthcoming 2022), available at
SSRN.
Good procedure scholarship identifies, explains, justifies, and critiques a judicial and litigation phenomenon, offering a framework to understand, change, or support what courts, parties, and rulemakers are doing. Great procedure scholarship describes the phenomenon with a pithy and memorable name or metaphor.
Behold Zachary Clopton’s Catch and Kill Jurisdiction.
Clopton draws his framework and label from catch-and-kill journalism, in which a publication purchases exclusive rights to a story for the purpose of not publishing it. The purchaser catches the story by taking it from other publications, then kills it by refusing to put the story out. The move protects the story subject from embarrassment (or worse) and denies the public potentially important information.
A court catches a case by exercising jurisdiction over an apparent state-law claim through a judge-made expansion of jurisdictional rules, keeping the case away from a state court with concurrent jurisdiction. It kills the case by applying unique, often judge-made federal-court doctrines to dismiss the case on non-merits grounds that prevent future litigation of the claim. Continue reading "Catching and Killing It in Federal Court"
Jul 20, 2022 Orit GanContracts
Farshad Ghodoosi & Monica M. Sharif,
Arbitration Effect (Jan. 26, 2022), available at
SSRN.
Arbitration is a hotly debated topic which has garnered significant scholarly attention from both opponents and proponents. Nevertheless, arbitration clauses are prevalent in employment and consumer agreements. Furthermore, the U.S. Supreme Court, has generally enforced these clauses through a series of pro-arbitration decisions. But what do we know about the impact of arbitration clauses on employees’ or consumers’ right to sue? A fascinating new article, Arbitration Effect, by Farshad Ghodoosi and Monica M. Sharif sheds light on this question. The authors conducted a series of experiments to measure “the arbitration effect,” i.e., whether an arbitration clause negatively impacts an individual’s decision to sue. The findings of these experimental studies are as follows:
First, individuals are less likely to pursue legal actions in arbitration than in court. In other words, the inclusion of arbitration clauses leads to lesser likelihood of individuals suing—hence the arbitration effect.
Next, when individuals are given the choice, along with appropriate explanation (most notably that arbitration means waiving the right to court), they do not opt out of arbitration provisions. Individuals do not overwhelmingly reject arbitration as an option at the contracting phase, even when they are aware of disputes. Thus, even if people are less likely to use arbitration to settle disputes when they arise, they do not opt out of arbitration provisions at the contracting stage. Continue reading "The Impact of Arbitration Clauses"
Jul 20, 2022 Katie EyerConstitutional Law
Adam Davidson,
Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity, 99
Wash. U. L. Rev. _ (forthcoming 2022), available at
SSRN.
Almost everyone, it seems, is against qualified immunity. Progressive scholars, organizations, and judges have decried the doctrine for shielding unconstitutional conduct from liability, and have argued that its legal foundations are weak and misguided. Conservative and libertarian scholars and judges have also begun to attack it, for both its legal illegitimacy and its perverse effects. Even large swaths of the public have become familiar with the arcane doctrine of qualified immunity, and oppose its continued application.
There are many reasons to criticize qualified immunity doctrine, but it is clear that for many, a primary motivation is its connection to police violence. With the rise of the Black Lives Matter movement, and increased attention to the problem of police violence against the Black and brown communities, the doctrines that shield such violence from civil legal liability have come under increased scrutiny. Central among these is qualified immunity, which can require an almost absurd level of legal “notice” that even unnecessarily deadly uses of force are unconstitutional. It thus seems intuitively obvious that those who care about ending police violence should care about abolishing qualified immunity. But will ending qualified immunity get us any closer to the goal of ending police violence?
This is the question raised by Adam Davidson’s provocative piece, Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity. Davidson concludes that it will not; indeed, he contends that if anything it is likely to lead to a stickier and more damaging body of case law, one that finds police violence to be constitutional on its own terms. As Davidson puts it, “Quite simply, there is little reason to think that federal courts will be more open to civil rights plaintiffs without qualified immunity standing in their way.” Thus, the abolition of qualified immunity is likely to lead a larger number of adverse constitutional decisions on the merits—decisions that, as Davidson points out, would be considerably more damaging and harder to disrupt than a ruling on qualified immunity. Continue reading "Should We Abolish Qualified Immunity?"
Jul 19, 2022 Richard PierceAdministrative Law
Thomas Merrill’s book, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State, is timely in several ways. First, it arrives immediately after he was named one of the fifty most important legal scholars of all time. Second, it tells the story of the Supreme Court’s 1984 opinion in Chevron v. NRDC, the most frequently cited administrative law opinion in history, at a time when the Chevron doctrine is in severe jeopardy. Third, Merrill uses the history of the Chevron doctrine as a lens through which he explains and defends the administrative state at a time when it is under attack as illegitimate and unconstitutional.
Merrill begins by describing the Chevron opinion and its effects. The opinion was long, complicated, and nuanced, but many circuit courts ignored the rest of the opinion and applied only the famous two-part test that the Court announced:
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Continue reading "The Administrative State As Seen Through a Chevron Lens"
Jul 18, 2022 Martin J. KatzWork Law
D’andra Millsap Shu,
The Coming Causation Revolution in Employment Discrimination Litigation, __
Cardozo L. Rev. __ (forthcoming 2022), available at
SSRN.
Two simple words, “because of,” are at the heart of most anti-discrimination statutes, which preclude employers from taking adverse action because of a protected characteristic. Two simple words. Yet, the myriad attempts by courts and commentators to make sense of these two simple words has appropriately been referred to as a “morass,” a “jungle,” and a “quagmire.”
There have been two battlegrounds. First is the question of which causal standard applies. Does the phrase refer to “but for” causation? “Motivating factor” causation? “Primary” or “predominate” causation? “Substantial factor” causation? “Sole” causation? Some combination of these? Or something else? Second–and the focus of Professor Shu’s article, The Coming Causation Revolution in Employment Discrimination Litigation–is that even when courts seem to agree on a standard, such as “but for,” they seem unable to agree on what that standard means. Now that the Court appears to have coalesced around the idea that “because of” generally refers to “but for” causation (even if some scholars might still argue for other standards), Professor Shu convincingly argues that the second battleground – over the meaning of “but for” – is the most important one. Continue reading "Has the Meaning of “Because of” Finally been Solved?"
Jul 15, 2022 Browne LewisTrusts & Estates
Editor’s Note: With profound sadness, we share the untimely passing of Dean Browne C. Lewis of the North Carolina Central University School of Law on June 2, 2022. We extend our heartfelt condolences to Dean Lewis’s family, colleagues, and students. Dean Lewis submitted this review shortly before her death, so it was edited and published posthumously.
The probate system is designed to ensure that the decedent’s wealth is transferred to family members. Common law dictates that the probate system gives preference to families. The probate system has not kept up with the ever evolving definition of family. In The Dilemma of the Transgender Heir, Professor Carla Spivack discusses yet another complication that may arise because of the law’s tendency to see the world through a binary lens that requires people to identify as male or female. The problem identified by the author is how the law should treat a bequest when a person transitions to a gender different from the one mentioned in an executed testamentary instrument. For example, the testator may leave a bequest to a son who has transitioned to a daughter at the testator’s death. Does the gift lapse because the person identified in the testamentary instrument as male is now female? The author looks to several legal doctrines to determine whether the law provides a way to save the gift for a son who has become a daughter.
If an ambiguity exists in a will, the court will admit extrinsic evidence to clarify the testator’s intent. Once that intent is determined, the court can distribute the decedent’s property accordingly. In the case of a transgender heir, the ambiguity would be latent because the confusion only occurs when the executor discovers that the heir has transitioned to another gender. Under the common law, a court would allow the executor to present extrinsic evidence showing that the testator would have wanted the person to receive the property regardless of the person’s gender identity. The author, however, rejects the ambiguity-rule approach to resolving the dilemma of the transgender heir because she argues that the will does not truly contain an ambiguity. This is not a typical case of ambiguity in which the testator refers to an heir by the wrong name. Here, the information contained in the will is correct, even though the person named in the will no longer exists in the original form. Continue reading "Becoming"
Jul 14, 2022 Alexandra LahavTorts
There are two strands of tort scholarship. One group, whom I will call “The Philosophers”, seeks to understand tort as an internal system. A second group, “The Institutionalists”, seek to understand tort law as part of the larger legal system that governs harms, in comparison to administrative agencies, criminal prosecutions, and bankruptcy. Lindsey Simon’s article, Bankruptcy Grifters, is an important contribution to this latter strand of scholarship.
Relying on meticulously researched case studies and a deep knowledge of bankruptcy law, the piece clearly explains the difficult and complex use of bankruptcy to resolve mass torts (a feat in itself) and sets an agenda for further research and policy proposals. It should be required reading for torts scholars who don’t much understand how bankruptcy has emerged as an alternative to the tort system and what this development means for the tort system, particularly mass torts which threaten to eclipse all of tort law by sheer numbers. Continue reading "Mass Tort Endgames"
Jul 13, 2022 James GrimmelmannTechnology Law
Gregory Klass,
How to Interpret a Vending Machine: Smart Contracts and Contract Law, 7
Geo. L. Tech. Rev. __ (forthcoming, 2022), available at
SSRN.
Gregory Klass’s How to Interpret a Vending Machine: Smart Contracts and Contract Law is an extraordinarily incisive legal analysis of smart contracts. While others have written insightfully about the relationship of smart contracts and legal contracts, Klass utterly nails a central conceptual point: When smart contracts are embedded in legal relationships, they stand in need of interpretation.
Nick Szabo introduced smart contracts in the 1990s as contracts “embedded in the world” such that breach is expensive or impossible. Whereas traditional contracts rely on the legal system (backed by threat of force) to enforce their terms, smart contracts use hardware and software to automatically enforce their terms. Szabo gives the example of a “humble vending machine” that takes in coins and dispenses products, and then argues that software and cryptography make it possible to craft much more sophisticated agreements than simple cash sales.
Seen this way, smart contracts are not contracts but mechanisms, and hence the vending-machine analogy is apt. What is important is not what they mean but what they do. Klass shows that even mechanisms need interpretation. Through a sequence of entertaining hypos, he demonstrates that courts confronting cases involving mechanisms embedded in contracts must use the methods of legal interpretation to reason about what those mechanisms are understood to do, just as they reason about what contractual text is understood to do. Continue reading "The Humble Vending Machine"
Jul 12, 2022 Neil H. BuchananTax Law
Do the goals of fairness, equity, social justice, or other explicitly normative approaches to analyzing law and policy have any place at all in modern scholarship? Some scholars, especially those who approach the world from an orthodox economic viewpoint, have tended to reject categorically the very idea that such concepts should supplant their purportedly hard-headed analysis–an analysis that they hold out as being superior to supposedly “soft,” “sentimental,” “moralistic,” or “subjective” anti-orthodox approaches. Increasingly, however, equity-based analysis has at least been permitted as a component of most legal scholarly discussions. That itself is progress.
Even so, there continues to be a presumed distinction between self-styled “objective” approaches and the approaches of those who focus on inequality, domination, and other such fundamental questions of social justice. The familiar “equity-efficiency tradeoff” encapsulates this tension, the notion being that there are two distinct analytical categories that are not merely separate but in opposition to each other–-that is, the tradeoff says that we must sacrifice some efficiency if we desire greater equity, or instead that we must agree to doom more people to poverty if we seek to maximize efficiency. But is there a better approach? Happily yes, as Taxation and Law and Political Economy, by Professors Bearer-Friend, Glogower, Jurow Kleiman, and Wallace, clearly suggests. Continue reading "Bringing Law and Policy Back from the Black Hole of Efficiency-Based Analysis: Another Important Step Toward Refocusing on Justice"
