May 17, 2024 Adam N. SteinmanCourts Law
When it comes to Supreme Court decisions on standing, the hits keep coming. Whether you view “hits” in the Casey Kasem sense or the Joe Louis sense may depend on your perspective. It seems like only yesterday that I posted a Jot about standing, and the Court has not let up—with more big decisions (like Murthy v. Missouri and the mifepristone case) on the way before the current Term draws to a close in June.
William Baude and Samuel Bray’s excellent article is not just about standing. It also is about remedies and other aspects of the judicial role. They recognize, of course, the inextricable relationship between standing and remedies; one element of Article III standing is redressability, after all. And they acknowledge—as others have—legitimate questions about whether current standards “have been cashed out in exactly the right places,” including whether they “should not be in a doctrine called or conceptualized as Article III standing, but instead should be handled by rules about causes of action, equitable jurisdiction, various civil procedure doctrines, and so on.” For Baude and Bray, the guiding principle should be this: “federal courts should be deciding only cases between the proper parties that result in proper relief.” Continue reading "Standing, Still"
May 16, 2024 Robert RosenCorporate Law
Some data show that the recent significant increase in board diversity is less well explained by NASDAQ and CA regulations than by the Black Lives Matter Movement. How did the BLM Movement against police behavior become a call for racial justice that reverberated in corporate boardrooms? More generally why do CEOs, boards, and managers (members of what C. Wright Mills would call the “power elite”) pursue (or want to appear to be pursuing) ESG policies? This article answers such questions by identifying the increasing power of some of the millennial generation — those born between 1981-1996 — as consumers, employees, and investors.
As the authors show “Social issues can become financial problem in short order.” (P. 304.) Their examples are Black Lives Matter, Me-Too and Climate Change. If this article were written today, they might discuss the Governors of Florida or Texas and index funds value-diversifying their funds ( e. g. Catholic faith-based investors), with the consequent loss in the index fund’s concentrated voting power. As the authors admit, “current views on ESG are polarized.” There is conflict within the power elite. The Millennial Corporation: Strong Stakeholders, Weak Managers reveals strategies for getting ESG into corporate action. Continue reading "Conflict within the Power Elites: Intra-Elite Politics and ESG"
May 15, 2024 Nora Freeman EngstromTorts
It’s no secret that, in recent years, third party litigation funding has become something of a lightning rod. The Chamber of Commerce, some in Congress, and various states have sought to rein in a rapidly growing industry. In Opaque Capital and Mass-Tort Financing, Samir D. Parikh calls attention to a newfangled form of litigation financing in mass-tort cases, which, he believes, threatens to distort outcomes and “push victims further away from financial recovery.” (P. 32.) In so doing, Parikh helpfully reminds us that there is still much to be understood about new forms of funding before plunging into reform.
Before turning to Parikh’s argument, it’s helpful to start with a bit of background.Third-party litigation funding (sometimes called TPLF, alternative litigation funding, or ALF), is an umbrella term that refers to various lawsuit funding mechanisms. Three main flavors of funding fall under this broader umbrella. Continue reading "Shining a Light on “Opaque Capital”"
May 14, 2024 Hila KerenContracts
Hanoch Dagan & Catherine L. Fisk,
Independent Contractors and The ABCs of Contract Law, __ Ariz. L. Rev. __ (forthcoming 2024), available at
SSRN (Oct. 23, 2023).
The notorious 1905 Supreme Court decision in Lochner v. New York has become a symbol of a clash between the State’s wish to protect people from inadequate working conditions and the freedom of businesses and workers to use contracts to regulate their relationships. While the protective regulation of the work arena has since become more prevalent and has been approved time and again by a post-Lochner Supreme Court, businesses on the hiring side have never ceased attempting to evade these regulations by using contracts and insisting on their enforcement in the name of the freedom of contact. Is contract law truly the nemesis of fair labor? Must it undermine workers’ minimum legal protections against a long list of evils such as safety hazards, exhaustive hours, meager pay, and discrimination?
Hanoch Dagan and Catherine Fisk’s forthcoming Article, Independent Contractors and The ABCs of Contract Law, answers those questions with a rigorous “no.” The UC Berkeley co-authors have combined their expertise in labor law (Fisk) and contract law (Dagan) to provide a powerful critique of the conventional belief that their respective fields collide. Their collaboration presents a compelling and, I would add, hopeful reconstruction of the relationship between workers’ rights and contracts. Continue reading "On Preventing the Abuse of Contracts"
May 13, 2024 Kristina NiedringhausLexLibrarianship and Legal Technology
I usually avoid articles about generational differences because they too often veer into the “kids these days” territory. However, from her opening quote and introduction, I suspect that Prof. Schlinck and I have similar feelings about those types of articles. As she writes, “After all, if complaints about the younger generation’s “tyranniz[ing] their teachers” (referencing a quote from Plato, or someone) dates back to ancient Greece, then it may be time to see our students as occupying a glass half full.” (P. 272.) Prof. Schlinck’s article, OK, Zoomer: Teaching Legal Research to Gen Z, provides a brief explanation of generational theory before exploring aspects of Gen Z’s “peer personality.” She then translates those generational traits into pedagogical strategies for optimizing legal research instruction for today’s typical law student. While the suggested techniques are discussed in the context of research instruction, most of them can be extrapolated to other subjects and will be useful for teaching a variety of law school courses.
Prof. Schlinck’s article outlines ten pedagogical tactics that respond to the generational traits of Gen Z. Continue reading "Gen Z in the Legal Research Classroom"
May 10, 2024 Jack BeermannAdministrative Law
Did you ever wonder how it came to be that people suspected of immigration violations are subject to arrest without a judicially issued warrant? That executive branch immigration enforcement officers themselves have the authority to issue enforceable arrest warrants? And further, how it came to be that alleged immigration law violators can be held in prolonged detention without a probable cause hearing before a neutral magistrate of any kind?
When I first encountered this set of related issues, I quickly learned the conventional wisdom, that based on a longstanding tradition and Supreme Court approval, immigration law is an exception to the Fourth Amendment’s requirements that only judicial officers can issue arrest warrants and that in cases of warrantless arrest, the arrestee must be brought before a neutral judicial officer within a reasonable amount of time, normally not to exceed 48 hours. Professor Lindsay Nash’s excellent recent article Inventing Deportation Arrests reveals, through meticulous historical and doctrinal analysis, that the conventional understanding is built on shaky legal and historical ground and is subject to serious abuse. The article is very well written and enlightening on an important subject that I suspect has been somewhat opaque to most scholars of administrative law. Continue reading "The Dubious Validity of the System of Deportation Arrests"
May 9, 2024 Kerri Lynn StoneWork Law
I have always been intrigued by the adjudication of workplace retaliation claims by U.S. courts. The act of retaliation itself, and the myriad ways that it is accomplished, is interesting because it can be subtle, “served cold” (delayed), or barely perceptible. With that in mind, I recommend to you Daiquiri J. Steele’s Rationing Retaliation Claims. In this piece, Professor Steele thoughtfully takes on the issue of the U.S. Supreme Court’s “fear of opening the floodgates” of litigation when it comes to retaliation claims in the employment context. Professor Steele concludes that this fear is “overstated and misplaced,” a conclusion that I think is correct, and is also thoughtfully reached and well researched. This makes her piece a great contribution to the current discourse on this most important topic.
Professor Steele argues persuasively that rather than sounding the alarm when it comes to the uptick in retaliation claims filed by employees, we should be paying heed to them, as they are a sign of intra-organizational conflict. Significantly, Professor Steele notes, these claims are properly surging, because, as her research documents, the practice of retaliation is surging. Moreover, according to Professor Steele, “considerations of judicial economy are particularly misplaced in workplace retaliation cases,” because it is precisely the anti-retaliation statutory mechanisms and provisions that give civil rights statutes any teeth, so to speak, and enable plaintiffs to even think about coming forward to vindicate their rights without being intimidated. Continue reading "An Intelligent Call for a Mandate of Broad Judicial Construction When it Comes to Antiretaliation Claims"
May 8, 2024 Katheleen GuzmanTrusts & Estates
Richard Storrow, Reviving Revival in the Law of Wills, 55 Tex. Tech L. Rev. 501 (2023).
I am embarrassed to admit the time it took for me to realize that words beginning with the Latin prefix “re” generally denote something done over again: move and remove; solve and resolve; cognize and recognize. Relatedly, I’ve sometimes struggled with the concepts of two negatives equaling a positive, or whether “the enemy of my enemy” was (really) my friend.
In Reviving Revival in the Law of Wills, Professor Richard Storrow suffers no such problems. In addressing one of the more confounding doctrines of wills law–determining how to interpret the estate plan of a testator who executes a first will, follows it with a second valid instrument that fully or partially revokes the first, and later yet revokes the second will or codicil by physical act–he couples double-done and double-negative concepts to make and defend the straightforward proposition that revoking a revocation should equal revival. Indeed, by reminding readers of the ambulatory nature of wills – “the anchor grounding testators’ understanding that they can later change the testamentary plans they make today” – he makes and defends a more subtle point: that “the problem with revival doctrine is not so much one of testamentary intent but of testamentary expectation.” The act of revoking the second will, or the codicil, ought to restore the first will because a testator would expect that it does. This should surprise no one who holds to the notion that no will speaks until the death of its maker. But, Prof. Storrow intimates, it might surprise many readers to know that under modern doctrine, wills indeed speak immediately upon execution, perhaps most loudly to revoke any that had been written before. As such, Prof. Storrow’s article simultaneously revisits old doctrines with an eye toward clarifying them while also contemplating new and original theories of will . Continue reading "Double Negatives/Coming Around Again"
May 7, 2024 Nicholson PriceTechnology Law
Artificial intelligence (AI) is moving increasingly rapidly into health care (as indeed into everything else). But it has problems there (as indeed everywhere else!). What’s to be done, in particular, about the deeply embedded biases along racial and other lines that permeate the whole world of health and, as such, are likely to be encoded in AI?
Khiara Bridges gives an answer that seems mild but carries roots of revolution. In Race in the Machine: Racial Disparities in Health and Medical AI, she argues that informed consent is a key lever to pull in fighting these racial disparities. But not because informed consent—at present, mostly a formality, a begrudging nod to autonomy—will fix the problem in its current state. Instead, Bridges argues, informed consent, beefed up and focused on conveying the brutal truth about encoded racial disparities, can form the foundation for revolutionary social changes in health care, health, and beyond. Curious? Read on! Continue reading "Can Informed Consent Solve AI Bias?"
May 6, 2024 Gregory M. SteinProperty
Many of America’s large coastal cities are prospering. Large, industrial rust-belt cities have struggled in recent decades, but some have begun to recover, making up for lost factories and shrinking populations with high-tech jobs that attract younger workers. But what about small to midsize industrial cities – places like Youngstown, Dayton, Trenton, and Harrisburg?
In their new report, Greening America’s Smaller Legacy Cities, Joseph Schilling, Catherine Tumber, and Gabi Velasco make the case that an equitable and sustainable low-carbon future is essential for smaller and midsize legacy cities to thrive. The path to this type of “green regeneration,” they suggest, requires a focus on three areas: (1) climate resilience; (2) environmental justice and equity; and (3) green economic development. Continue reading "A Low-Carbon Future for America’s Smaller Legacy Cities"
