Jun 1, 2023 Maneesha DeckhaEquality
Those wanting to brush up on “the rule of law,” recall the differences amongst leading rule of law theorists, or consider the equality implications of classic definitions of what the rule of law is and is said to protect, need only consult John Adenitire’s The Rule of Law for All Sentient Animals published last year in the Canadian Journal of Law & Jurisprudence. In it, Adenitire argues that prevailing accounts of the rule of law are exclusionary of beings with “lesser” rational capacities (both human and nonhuman), and he charts a more inclusive path. Through these contributions, Adenitire also convinces his reader as to the need for any rule of law theory to explicitly protect animals.
In a single article, Adenitire concisely illuminates key rule of law theories—formal, procedural, substantive—through focusing on their exposition by influential proponents. Adenitire takes Lon Fuller, Jeremy Waldron, and T.R.S. Allan as illustrative theorists of the formal, procedural, and substantive iterations respectively. Adenitire’s intent is to show how each excludes animals from their purview by privileging what he terms “active legal subjects” (P. 1), understood as those able to apprehend and adhere to the law and those who can be sanctioned for any violations. Continue reading "Excluding Animals: A Rule of Law Violation"
May 31, 2023 Mary FanCriminal Law
One of the pleasures of chairing faculty hiring is seeing fresh scholarly stars launching their law professor career. During the intense whirl of hiring season, new entrants to law teaching author much of my law review article reading load. One of the stellar scholars with an exciting trajectory is Farhang Heydari. In his recent article, The Private Role in Public Safety, Heydari writes about private influences in policing with the authority of experience working with police officials and litigating civil rights and liberties cases. Heydari is Executive Director at the Policing Project, founded by preeminent policing scholar Barry Friedman to strengthen democratic governance of policing.
As an example of how private enticements impact policing, consider the Baltimore Police Department’s total aerial surveillance program. A private company, Persistent Surveillance Systems, contracted with the Baltimore Police Department to use three planes mounted with high-resolution cameras to record activities throughout 90 percent of the city. A Texas billionaire promised to pay for the $3.7 million pilot program. The grassroots group Leaders of a Beautiful Struggle, represented by the ACLU, challenged the overflight program, alleging violations of the rights to free association under the First Amendment, and privacy against dragnet warrantless government surveillance under the Fourth Amendment. Continue reading "Regulating Private Influences on Policing"
May 30, 2023 Da LinCorporate Law
Professors Jeremy Kress and Matthew Turk’s warning that “too-big-to-fail” megabanks are not the only source of systemic risk to the banking system has proved prescient. Shortly before its collapse on March 10, 2023, Silicon Valley Bank (SVB) had approximately $209 billion in total assets. SVB was the sixteenth largest bank in the U.S., but it still fell below the size threshold that automatically triggered an enhanced regulatory regime. Until it failed, SVB was not regulated as a “systemically important” bank because it was not big enough. Yet two days after it closed, federal regulators invoked the “systemic risk exception” after determining that they needed to rescue the uninsured depositors of SVB and the even-smaller Signature Bank to prevent destabilizing the broader financial sector.
In Too Many to Fail: Against Community Bank Deregulation, Kress and Turk foreshadow the error of equating “systemically important” with “too-big-to-fail.” The article is an incisive response to the sweeping efforts since 2010 to ease the regulatory burden on small and midsize banks, which culminated in the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018. It argues that this deregulatory push has been premised on three widely held but mistaken myths: (1) smaller banks cannot propagate systemic risk; (2) post-financial crisis reforms overly burdened smaller banks; and (3) smaller banks require special regulatory relief or advantages to compete with too-big-to-fail counterparts. Continue reading "Even Small Banks Can Pose Systemic Risk"
May 29, 2023 Orit GanContracts
Albertina Antognini & Susan Frelich Appleton,
Sexual Agreements, 99
Wash. L. Rev. 1807 (2022).
This thought-provoking article analyzes the interaction between contract and sex. Seemingly they belong to two utterly different and separate worlds, with no connection between the two. As the authors show, the conventional wisdom is that a contract for sex is unenforceable, whether the parties are married or not. In the case of unmarried couples, the courts refuse to enforce sex for property contracts since that would validate prostitution. Contracts for illicit sexual services are void for violating public policy. In the case of married couples, the courts would not allow the parties to alter the marriage contract written by the state. Sex is essential to marriage, and as the loss of consortium claim proves, sex also has economic value in marriage. This is sex exceptionalism, which means the state prevents the distribution the parties agreed upon in their contract whether in marriage or outside of marriage. Moreover, the authors claim that privileging marriage–and not prostitution–is the reason the courts invalidate non-marital sexual agreements and maintain the marriage-cohabitation hierarchy.
However, the authors claim that in fact the law governing sexual agreements is more complex, and they offer a nuanced description of the law’s treatment of cases where sex is part of the contract. Drawing from paid gestational surrogacy, parentage agreements, surrogate partner therapy and adult entertainment employment as examples they show that the law recognizes these sexual arrangements as legal contracts. Moreover, rape law is based on consent, which means the distinction between lawful and unlawful sex is constructed in a contractual manner. As these examples demonstrate sex and contract are not separate but they coexist and converge. Continue reading "What Does Sex Have to do with Contract?"
May 26, 2023 Leonid SirotaConstitutional Law
Among the best-known maxims of freedom of speech in the United States is Justice Holmes’s “freedom for the thought that we hate.” It would not be an apt description of the law of free expression in Canada. As Camden Hutchison explains in Freedom of Expression: Values and Harms, the Supreme Court of Canada (SCC) ranks speech according to subjective judgments of value, and woe to those whose thought it does not think much of. Hutchison makes a compelling case for why this is the wrong approach to adjudicating freedom of expression claims, and an intriguing suggestion for what may replace it.
As Hutchison points out, and as I have noted elsewhere, things didn’t start out this way. At first, the SCC held that any law whose purpose was to restrict expression amounted to a limitation of the freedom protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, which could only be upheld under s. 1 of the Charter if “demonstrably justified in a free and democratic society.” Only when the impugned law affected expression incidentally would the values associated with this right be relevant: political participation, the search for truth, and individual self-fulfillment. If these were impaired, a potential violation of s. 2(b) might still be on the cards, subject to justification under s. 1. Continue reading "Bringing Real Harm Back to Canadian Free Speech Law"
May 25, 2023 Richard PierceAdministrative Law
- Daniel Sokol, Antitrust Merger Control as a Regulatory Sandbox, __ J. Corp. L. __ (forthcoming), available at SSRN (Apr. 4, 2023).
- Daniel Sokol, Marissa Ginn, Robert J. Calzaretta, Jr. & Marcello Santana, Antitrust Mergers and Uncertainty, __ Bus. Law. __ (forthcoming), available at SSRN (Dec. 6, 2022).
In these two articles, Professor Sokol and his co-authors analyze recent changes in the methods the Federal Trade Commission (FTC) uses to review proposed mergers. Their findings are startling. The articles are required reading for anyone who is interested in antitrust law, administrative law, government regulation, or corporate law.
In his short essay Antitrust Merger as a Regulatory Sandbox, Sokol praises the antitrust merger control system under the Hart-Scott-Rodino Act as “an early attempt at a ‘regulatory sandbox,’” and criticizes developments of the Biden administration that reduce innovation and chill mergers. In Antitrust Mergers and Uncertainty, Sokol and his co-authors asked lawyers and economists who regularly advise firms about prospective mergers a series of questions about the ways in which the process has changed in the two years in which Chair Khan has headed the FTC. Continue reading "Confused Merger Policy at the FTC"
May 24, 2023 Michael Z. GreenWork Law
In the 2022 paper, Race in Contract Law, Professor Dylan C. Penningroth examines in great depth how race and slavery affected the development of modern contract law. Penningroth provides a unique historical perspective by reviewing a “sample of 9,113 cases from trial court dockets in twenty-two courthouses and five state archives.” (P. 1209.) What makes this paper one that I like a lot for work law scholars is how it unearths the unspoken use of race from Reconstruction to the end of Jim Crow in the development of contract law canons such as freedom of contract as well as analytical concepts reflecting voluntariness and consent that still affect or coerce Black workers today.
Penningroth seeks to address broad goals within this paper. This includes transforming the law school curriculum to train law students on the history of “racial thinking” related to ending slavery that also contributed to leading rules on how to regulate contractual behavior in a multiracial economy with newly emancipated slaves. Penningroth also encourages contracts casebook authors to reframe the evolution of those canons by using more cases that show Black people’s stories. Beyond those laudable pedagogical goals, this paper shows how the development of contract law after slavery responded to fears regarding an organized labor narrative that still divides all workers today based upon race. Continue reading "Identifying Racial Dimensions Within Contract Norms That May Coerce Black Workers"
May 23, 2023 Victoria J. HanemanTrusts & Estates
Kate Falconer,
Trusts over Cremated Ashes, 15
Journal of Equity 283 (2021), availible at
SSRN (December 1, 2021).
The “law of the dead” or the law of human remains is regarded as an emerging field of study that considers rights to physical possession of the deceased and control over their disposition. In the United States, it is an idiosyncratic area of the law that dresses the concept of remembering in positive legal protections. In memory of the living, we afford a now-empty vessel with quasi-property status to protect against disrespect or defilement. The law of the dead in the United States has developed in an inconsistent and formalistic way, arguably with the funeral industry having an oversized role in the process of rulemaking. In guiding the law of the dead toward more cohesive and forward-thinking rules, it is important to consider the way in which other countries address disputes involving human remains. Trusts Over Cremated Ashes, by Kate Falconer, published in 2021 in the Journal of Equity, considers the use of “cremated ashes trusts” by the Australian courts.
Cremation is a popular method of disposition in Australia, accounting for an estimated 65% of deaths. Comparatively, the U.S. cremation rate was 57.5% in 2021. Roughly 20% to 40% of cremated remains (“cremains”) are interred in a cemetery (either stored in a columbarium or buried) and the remainder are either maintained somewhere other than a cemetery, dispersed, or repurposed. It is not uncommon for disputes to arise over who is entitled to possess and manage the cremains, and the law is not necessarily efficient or consistent in dictating a result. Contemporary U.S. law consists of a patchwork of state statutes that overlay the common law nullius in bonus (“no property in a dead body”) rule, which provides no legal right for a decedent to dictate a preferred method of final disposition. Although some states would like to grant the decedent this right, current statutes frequently lack enforcement mechanisms. Continue reading "Constructive Trusts and Cremated Remains"
May 22, 2023 Anita BernsteinTorts
Leslie Y. Garfield Tenzer and I have crossed paths only once, in an encounter that I found memorable. The venue was a 2014 symposium called Social Media and Social Justice. As one might expect at a law school event with social justice in its title, denunciation and concern abounded. The gloomy context caused a remark by Professor Tenzer to stand out: “I love social media!” When the time came to publish my presentation, I felt moved to quote this splash of good cheer.
Nine years later, Tenzer’s love of this environment seems alive, though with a plangent note running through her insightful Social Media and the Common Law (“Social Media”). Tenzer says she “finds fault with the judiciary’s failure” to impose accountability on the sector (P. 229) and worries about “the prevalence of unaddressed and unpunished social media harms” (id.) that include defamation, invasion of privacy, harassment, emotional distress (which can be severe enough to precipitate suicide, see P. 242) and the cluster of consequences that result from what now gets called cyberbullying. But Social Media seeks to mend rather than end what it observes. Its case for more tort liability is intended to make providers and communications healthier, not just more accountable for the injuries they inflict. Continue reading "The Common Law Inside Social Media"
May 19, 2023 Woodrow HartzogTechnology Law
Ryan Calo,
The Scale and the Reactor (2022), available at
SSRN.
The field of law and technology has come a long way since we last heard the unmistakable squeal of a modem connecting to cyberspace. Most of us that remember that sound now probably have more grey hair than we used to. We’ve covered a lot of ground since “Lex Informatica” and “Code is Law,” so you’d think our field would have a deeply sophisticated method for understanding the relationship between law, society, and technology, right?
Professor Ryan Calo thinks the field can do better. In this concise and accessible unpublished article that is part of a new book project, Calo highlights how Science and Technology Studies, or STS, has been overlooked and could contribute to the field of law and technology. To Calo, law and tech took decades to wind up where STS would have started. It’s not that law and tech is redundant of STS, rather, the problem is that “law and technology has been sounding similar notes to STS for years without listening to its music.” As a result, our field “does not benefit from the wisdom of scholars who have covered roughly the same ground.” Calo looks to showcase critical STS ideas and debates “for the unfamiliar law and technology reader,” so that we no longer have an excuse to claim ignorance of the field. He accomplishes this in spades with a clear and deeply informed article that is a must read for anyone writing in the field of law and technology. Continue reading "What STS Can (and Can’t) Do for Law and Technology"
