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Is Negligence Law Less Objective Than We Think?

September 14th, 2015 | Gregory Keating | Torts

Avi Dorfman, Negligence and Accommodation: On Taking Other People as They Really Are, (2014), available at SSRN.

Avi Dorfman, a private law scholar at Tel Aviv University, has posted a deep and provocative paper Negligence and Accommodation: On Taking Other People as They Really Are. Negligence and Accommodation is one of those rare papers that manage to say something new about familiar terrain. Here, the terrain is negligence law’s treatment of primary (other-regarding) negligence and contributory (self-regarding) negligence. Dorfman makes the case that the matter is of prime importance for our understanding of the morality of negligence law. The essential idea is simple enough. We are accustomed to thinking of the standard of reasonable care as objective. Indeed negligence law is famously objective. It holds people to the standard of conduct that an idealized normal person would achieve. Dorfman argues, however, that negligence law takes people as they are—subjectivizes by taking their individual limitations into account—more than we think, but it does so asymmetrically. Negligence law takes the traits of victims into account when they fail to exercise sufficient care for their own protection, but it is as firmly objective as the received wisdom takes it to be when it addresses the negligence of those who endanger others.

Challenging the Received Wisdom

Quite rightly, Negligence and Accommodation, takes negligence law’s treatment of physical disability as the canonical instance of the law addressing people whose capacities and competencies are less than those of the standardized “reasonable person.” The paper then marshals an impressive amount of evidence in support of two theses. The first is that the law makes allowance for physical disability and adopts a “watered-down standard of care [for] cases of contributory or comparative negligence.” (P. 12, fn. omitted.)¹ The second is that not even “one case concerning the conduct of the tort-feasor has made allowance for her physical disability. Thus, tort-feasors are required to exercise the care a non-disabled tort-feasor would have been expected to exercise.” (P. 13, fns. omitted.) Neither of these theses is either wholly new, or utterly surprising. As Dorfman notes, Fleming James stressed that the subjectivization of the standard of care found its most intense manifestation in the case of physical disabilities. Still, no one has developed as thoroughly or as persuasively the thesis that asymmetric treatment of self-regarding and other-regarding obligations of care is a deeply entrenched feature of negligence law.² In zeroing in on the asymmetric treatment of primary and contributory negligence, moreover, Dorfman is highlighting a theoretically important feature of negligence law. The two dominant tort theories of our time—economic analysis and corrective justice—both impose frameworks which suggest that primary and contributory negligence are on a par and both tend to push the actual treatment of contributory negligence by negligence law to the peripheries of their theories. They do so because the law’s asymmetric approach embarrasses both views. Continue reading "Is Negligence Law Less Objective Than We Think?"

Using the Tax Code to Help Universities Put Big-Time College Sports in (Some) Perspective

September 11th, 2015 | Neil H. Buchanan | Tax

Richard Schmalbeck, Ending the Sweetheart Deal between Big-Time College Sports and the Tax System, Duke Law School Public Law & Legal Theory Paper (2014).

Neil H. Buchanan

The modern university is a precious institution, providing a wide variety of benefits to society. But it is constantly in danger of being turned into something far less valuable, ironically by the very people who claim that “creating value”—but only in a very limited sense—should be the narrow goal of higher education. In addition, through political channels as well as financial incentives, universities are pressured to discontinue certain lines of research, to violate academic freedom, and in a variety of other ways to undermine independent academic inquiry. In the face of these ubiquitous and increasing pressures, it is essential that universities continue to defend their traditional role in society.

One quintessentially American collegiate tradition, however, has recently gained disproportionate influence in our universities. Big-time college sports programs have become dangerously influential on far too many campuses. It is important to remember that universities do not need to derive funds from operating lucrative sports programs. Many great American universities do not do so (for example, NYU, University of Chicago, and Carnegie Mellon), while others do so at lower levels of competition (the Ivy League, elite liberal arts colleges, and so on). Nevertheless, far too many top-flight institutions have increasingly committed themselves to being competitive in the sports that generate large amounts of revenue from television and merchandising: football and men’s basketball. That most of those institutions actually lose money on those “revenue sports” has not discouraged more and more universities from trying to win a piece of that revenue pie. The illusory promise of big money from sports has created many problems for American universities, but many proposals to address those problems are deeply misguided. In particular, as I have written (e.g., here and here), recent calls to allow cash payments to players would move us in exactly the wrong direction.

In Ending the Sweetheart Deal between Big-Time College Sports and the Tax System, Professor Richard Schmalbeck takes a different tack, explaining how the current federal tax system exacerbates the problem and increases the incentives for universities to become ever more ensnared in the big-time sports trap. He describes two tax provisions—universities not having to pay the Unrelated Business Income Tax” (UBIT) on their sports-related profits, and a provision allowing a partial deduction for barely disguised added charges for admission to games—that are “egregiously bad,” and he concludes that “these defects amount to an implicit tax subsidy of college sports that is neither healthy nor in any way justified.” Because of space limitations, I will focus here only on the first provision. Suffice it to say that Professor Schmalbeck’s arguments regarding the second provision are as strong as those for the first, which is to say very strong indeed. Continue reading "Using the Tax Code to Help Universities Put Big-Time College Sports in (Some) Perspective"

Cultural Narratives and Legal Rights

September 9th, 2015 | Angela Banks | Lex | Immigration

Jennifer J. Lee, Outsiders Looking In: Advancing the Immigrant Worker Movement Through Strategic Mainstreaming, 2014 Utah L. Rev. 1063 (2015).

Angela Banks

A perennial question for scholars interested in social justice is how politically and socially marginalized groups can become full members of society. Jennifer Lee provides an important contribution to the literature addressing this issue. Building on insights from the social movement literature on strategic framing, Lee contends that strategic mainstreaming offers an opportunity for marginalized groups to obtain immediate benefits. Lee focuses on unauthorized immigrant workers and views strategic mainstreaming as a tool to successfully litigate workplace violations, petition for immigration status, and obtain desired public policy reforms.

Much has been written within the social science social movement literature about the role of frames and framing strategy in bringing about legal reform. Frames serve as tools for organizing and understanding information. Because of the relationship between cultural norms and law, framing offers a useful strategy for legal reform advocates. As Lee notes, “law is neither objective nor fixed but rather dependent on the relationship law shares with the dominant cultural and social patterns of society.” (P. 1068.) Consequently social movements seeking legal reform “are more powerful when the messages of the movement align with the values of mainstream culture.” (P. 1069.) Lee focuses on one type of framing strategy—mainstreaming. This is the process by which “interpretive frames correlated to dominant cultural values” are used “to create connections to mainstream society.” (P. 1064.) Through mainstreaming advocates seek to demonstrate common ground between those seeking reform and dominant cultural values. Continue reading "Cultural Narratives and Legal Rights"

Lifting the Lid on the Law Lords: The Workings of England’s Highest Court

September 8th, 2015 | Andrew Boon | Legal Profession

Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (2013).

Andrew Boon

In Final Judgment Paterson makes a triumphant return to the subject of his PhD undertaken forty years ago: the operation of the highest court in England and Wales. This update covers the transition required by the Constitutional Reform Act 2005, giving effect to a rhetorical separation of powers. The relevant part of this legislation as far as this account is concerned is the abolition of the jurisdiction of the House of Lords and its reconstitution, outside of Parliament, as the Supreme Court.¹ (It is worth reading this in conjunction with Richard Moorhead’s review of Hanretty’s Political Preferment in English Judicial Appointments.)

The substance of the book draws on a number of sources, including over 100 interviews, many with members of both the House of Lords and the Supreme Court.² Primarily it illuminates process issues, from the way that judges interact with the advocates appearing before them to how they come to their decisions.³ Indeed, the structure of the book is based on dialogues the court has with others and among its own members. Paterson details how the exchanges with counsel in the court progress and, importantly, the difference good advocacy can make to the outcome of a case. We get insights into how the justices own discussions shape the ultimate judgments and what importance is given to dissents in terms of individualism versus collegiality. To bolster this Paterson provides some statistics on justices’ voting patterns over the last 15 years. He also touches on politically sensitive dialogues the Court has with other courts as part of the UK belonging to the European Union. In this respect the UK Supreme Court mediates between the pan-European courts and the polity of the UK. Recent discussions on human rights and membership of the EU highlight the difficulties.⁴ The depth and quality of this material is sufficient to make this work important without more. However, the authenticity of the accounts, and Paterson’s honest handling of the material, by which I mean that he reports what he found, warts and all, adds to its value. Continue reading "Lifting the Lid on the Law Lords: The Workings of England’s Highest Court"

Why are Fictions so Common in Law?

September 7th, 2015 | Brian Tamanaha | Jurisprudence

Legal Fictions in Theory and Practice, (Maksymilian Del Mar and William Twining, eds., 2015).

Brian Tamanaha

Law is filled with legal fictions, roughly defined as statements known to be false but treated as true by legal actors to achieve a purpose. No one is deceived by legal fictions, and the consequences of the fiction are generally recognized. The early common law was filled with fictions, often utilized to satisfy pleading or jurisdictional requirements. Well-known examples are fictional statements about lease and ejectment necessary for the action of ejectment, and statements about goods lost and found necessary for trover.¹ Perhaps the most infamous example is Mostyn v. Fabrigas (1773), when Lord Mansfield concluded that Minorca was in London for the purposes of obtaining jurisdiction in the case.² By the nineteenth century, after Bentham’s caustic attacks on legal fictions,³ their prevalence in law had come to be an embarrassment. An American jurist critically remarked in 1841, “All manner of pleadings and proceedings, both in law and equity, are stuffed with falsehoods and lies.”⁴ In Ancient Law (1861), Sir Henry Maine acknowledged fictions serve the useful purpose of facilitating change in the law, but he considered them a discredit to modern legal systems.⁵ Yet, a century and a half later, fictions still continue to exist in law.

Maksymilian Del Mar and William Twining have produced a superb collection of 19 essays on legal fictions. The book begins with a splash, publishing a first-time English translation of Hans Kelsen’s 1919 response to Vaihinger’s influential book on fictions.⁶ In consistently high quality essays, subsequent chapters take up a broad range of issues. About half of the chapters involve theoretical explorations that focus on what fictions are, how they should be defined, what purposes or functions they serve, why they exist, what their implications are for law and language, how influential theorists have considered them (particularly Fuller, Bentham, and Vaihinger), and various other issues. Another set of chapters are oriented toward specific contexts of legal fictions, including the early common law, ejectment actions, Roman law, exclusionary rules, copyright law, tort law, Rabbinic law, securities law, and criminal law. Continue reading "Why are Fictions so Common in Law?"

Copyright’s Family Law

September 4th, 2015 | David Fagundes | Intellectual Property

Anthony Reese, Be Careful Where You Die: Termination of Copyright Transfers and the Road to Marriage Equality, IP Theory (forthcoming, 2015) available at SSRN.
Brad Greenberg, DOMA’s Ghost and Copyright Reversionary Interests, 108 Nw. U. L. Rev. 1 (2014).

David Fagundes

Of the many things that may cause us to admire an article, one is the author’s identification of a meaningful relationship between fields that had otherwise seemed entirely disparate. In the past year, two pieces—Tony Reese’s Be Careful Where You Die and Brad Greenberg’s DOMA’s Ghost and Copyright Reversionary Interests—identified just such a non-obvious nexus between a popular issue of great social importance (marriage equality) and a relatively obscure topic of great statutory technicality (termination of copyright transfers).

Both of these articles explore issues raised by two of copyright’s distinctive future interest provisions. Descendants of authors whose copyrights vested prior to 1978 are statutorily entitled, under certain conditions, to reversionary interests in those copyrights. And heirs of any authors stand to inherit the inalienable right to terminate transfers established by the Copyright Act of 1976. The trick, in each case, is that the heirs who enjoy these potential future interests—typically, the surviving spouse and children—are determined by statute, regardless of an author’s estate plan or preferences to the contrary. Continue reading "Copyright’s Family Law"

Cree Lawfulness and Unlawfulness

September 3rd, 2015 | Val Napoleon | Equality

Tracey Lindberg, Birdie (2015).

Val Napoleon

I have thought about Tracey Lindberg’s novel, Birdie every day since I read it.¹ The novel is an irreverent, evocative, funny, and hard-hitting book that causes me to think and ask questions about Indigenous law in recent history and today through the lives of the women unflinchingly drawn by Lindberg. I propose that Birdie be approached as a Cree law text—as a performance of law with difficult questions expressed and examined through narrative. This jot is an invitation to readers to join me in discerning law through one of the forms of Indigenous pedagogy and precedent, the narrative or story. I propose a brief legal analysis of Birdie based on the Cree law research completed by Hadley Friedland² with the Indigenous Law Research Unit, Faculty of Law, University of Victoria.

Cree elder and storyteller, Louie Bird explains that in Cree society, the tasks of both telling and listening to stories are highly intellectual and demanding processes, beyond entertainment.³ He invites readers to attend to the stories by looking for questions, explanations, and subjects. He constantly challenges the reader to keep thinking by interrupting a story to ask, “So … why does the story say that?”⁴ Or, to ask whether a central character was using power properly.⁵ Bird’s comment on one story was, “So that is the mystery put into this story to make you think.”⁶ Continue reading "Cree Lawfulness and Unlawfulness"

The Case for Rate Regulation of Hospital Prices

September 2nd, 2015 | Jessica Lind Mantel | Health Law

Erin C. Fuse Brown, Resurrecting Healthcare Rate Regulation, 67 Hastings L. J. (forthcoming, 2015), available at SSRN.

Jessica Lind Mantel

With health spending in the U.S. outpacing both general inflation and spending by other developed nations, policymakers have targeted their attention on a primary culprit for our excess costs – high health care prices. Economists and other experts have offered a range of policy solutions to discipline health care prices in the United States. Using hospital prices as her case study, Fuse Brown provides a comprehensive analysis of these policies. In doing so, she guides the reader to two important conclusions: first, that there is no single solution that addresses the full range of market failures that cause high hospital prices and that a combination of approaches is therefore necessary; and second, that the package of solutions must include direct rate regulation of hospital prices for the most health care markets. This article builds on Fuse Brown’s earlier article, Irrational Hospital Pricing, 14 Hous. J. Health & Pol’y 11 (2014), which explains the harms caused by the current hospital pricing system.

Fuse Brown’s new article begins with a clear and succinct discussion of the market failures that cause high hospital prices. Most importantly, she explains how the growing concentration of hospital markets has reduced competition, removing a necessary price constraint. The article also discusses the principal-agent problems that plague health care, information asymmetries that leave the patient-consumer unable to make informed purchasing choices, and moral hazard created by reliance on third-party insurance to finance health care. Fuse Brown then explains the externalities that a dysfunctional hospital pricing system imposes on the uninsured and underinsured, such as harsh debt collection practices and personal bankruptcy. Continue reading "The Case for Rate Regulation of Hospital Prices"

How Families Gain Recognition

September 1st, 2015 | Douglas NeJaime | Family Law

Elizabeth S. Scott & Robert E. Scott, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships, 115 Colum. L. Rev. 293 (2015).

Douglas NeJaime

Family law scholarship features a significant amount of normative work arguing for greater recognition of diverse family forms. Careful descriptive work analyzing how such families gain recognition is far less common. Elizabeth Scott and Robert Scott’s insightful new article, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships, forthcoming in the Columbia Law Review, critically mines this second vein. Scott and Scott shift the focus away from the question of why we should provide greater recognition to more family forms and toward the question of how the state comes to accept and recognize novel family arrangements.

Beginning from the premise that families with “the qualities of commitment, durability, and emotional and financial interdependence deserve legal recognition and support,” Scott and Scott elaborate an informal model by which new family forms demonstrate these qualities and gain state recognition. Continue reading "How Families Gain Recognition"

Jotwell 2015 Summer Break

August 17th, 2015 | Michael Froomkin | Jotwell

Jotwell is taking a short summer break. Posting will resume on Tuesday, September 1. However, even while we’re on break, we’ll be accepting submissions, editing them, updating the site’s theme, and preparing new sections we plan to be launching in Fall.

If you like Jotwell, share — help us find more readers. Tell a friend about Jotwell. And if you are an academic reader, please consider recommending Jotwell to your students. Continue reading "Jotwell 2015 Summer Break"

What is a Theorist For? The Recruitment of Users into Online Governance

August 14th, 2015 | Rebecca Tushnet | Cyberlaw

Kate Crawford & Tarleton Gillespie, What is a flag for? Social media reporting tools and the vocabulary of complaint, New Media & Society (2014), available at SSRN.

Rebecca Tushnet

The problem of handling harassing and discriminatory online speech, as well as other forms of unpleasant and unlawful content—infringing, privacy-invading, or otherwise tortious—has been a matter for public discussion pretty much since people noticed that there were non-governmental intermediaries involved in the process. From revenge porn to videos of terrorist executions to men kissing each other to women’s pubic hair, controversies routinely erupt over whether intermediaries are suppressing too much speech, or not enough.

“Flagging” offensive content is now an option offered to users across many popular online platforms, from Facebook to Tumblr to Pinterest to FanFiction.net. Flagging allows sites to outsource the job of policing offensive content (however defined) to unpaid—indeed, monetized—users, as well as to offer a rhetoric to answer charges of censorship against those sites: the fact that content was reported makes the flagging user/s responsible for a deletion, not the platform that created the flagging mechanism. But the meaning of flags, Crawford and Gillespie persuasively argue, is “anything but straightforward.” Users can use flags strategically, as can other actors in the system who claim to be following community standards. Continue reading "What is a Theorist For? The Recruitment of Users into Online Governance"

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