Legal Theory Blog

Legal Theory Bookworm: "Equity and Law," edited by Goldberg, Smith, & Turner

The Legal Theory Bookworm recommends Equity and Law: Fusion and Fission, edited by by John C. P. Goldberg, Henry E. Smith, & P. G. Turner.  Here is a description:

The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity - their fission - was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world.

You can access the table of contents via this link.

Download of the Week: "Reasonable Self-Doubt" by Malcai

The Download of the Week is Reasonable Self-Doubt by Ofer Malcai.  Here is the abstract:

Sometimes, the availability of more evidence for a conclusion provides a reason to believe in its falsity. This counter-intuitive phenomenon is related to the idea of higher-order evidence, which has attracted broad interest in recent epistemological literature. Occasionally, providing more evidence for something weakens the case in its favor, by casting doubt on the probative value of other evidence of the same sort or on the fact-finder's cognitive performance. We analyze this phenomenon, discuss its rationality, and outline possible application to evidence law and to the law in general. It is suggested, inter alia, that such higher-order evidence may explain how judicial experience-based expertise in fact-finding is possible despite the absence of a feedback mechanism; and that fact-finders’ self-doubt regarding their own competence in making ‘beyond-reasonable doubt’ judgments might be reasonable and should not be ignored.

Recommended.  I have just discovered the work of this very interesting scholar, but better late than never!

Shinall on Anticipating Reasonable Disability Accommodations & Wage and Employment Outcomes

Jennifer Bennett Shinall (Vanderbilt University - Law School) has posted Anticipating Accommodation (Iowa Law Review, Vol. 105, No. 2, 2020) on SSRN.  Here is the abstract:

In theory, a reasonable accommodation mandate can remedy worker marginalization by requiring employers to make small adjustments in the workplace that have big payoffs for employees. But in reality, a reasonable accommodation mandate may be an empty promise. Reasonable accommodation is the hallmark feature of the Americans with Disabilities Act (“ADA”), yet decades of empirical studies indicate that wage and employment outcomes of disabled individuals have not improved — and may have even worsened — since the Act’s passage. Economists have been quick to blame the reasonable accommodation mandate for the ADA’s failure, but they have lacked sufficient data to discern both what aspect of the mandate is problematic and how to improve it. This Article is the first to supply the missing data, using two experimental vignette studies that test decisionmakers’ willingness to accommodate job candidates and existing employees. The studies find that decisionmakers are more reluctant to accommodate job candidates than existing employees, and cost concerns drive much of this reluctance. Based on these findings, the Article argues that much of the ADA’s ineffectiveness stems from the ambiguity it creates with respect to the reasonable accommodations disabled workers may require. Employers have little information about job candidates, making it difficult to estimate the costs of accommodating a candidate with any accuracy; accommodating an existing employee is inherently less ambiguous because employers have prior experience with that worker. As a result, employers exhibit far more aversion towards accommodating disabled job candidates than disabled existing employees. Because the current structure of the ADA only increases this ambiguity, particularly at the hiring stage, the Article proposes a twofold reform that promotes clarity in employers’ obligations to accommodate: cost caps to limit what an employer must spend to accommodate a given employee and the extension of governmental disability benefits to cover accommodation costs that exceed those caps. These alterations to the ADA will help reasonable accommodation achieve its theoretical promise, not only for workers with disabilities, but also for others disadvantaged by traditionally inflexible working environments, to whom the reasonable accommodation model may one day be extended.

Police Body Camera Evidence & Excessive Force Cases

Mitchell Zamoff (University of Minnesota - Twin Cities - School of Law) has posted Assessing the Impact of Police Body Camera Evidence on the Litigation of Excessive Force Cases (54 Georgia Law Review 1 (2019)) on SSRN.  Here is the abstract:

In the wake of several hotly debated and widely publicized shootings of civilians by police officers, calls for the increased use of body-worn cameras (bodycams) by law enforcement officers have intensified. As police departments across the country expand their use of this emergent technology, courts will increasingly be presented with video evidence from bodycams when making determinations in cases alleging the excessive use of force by the police. This Article tests the hypotheses that bodycam evidence will be dispositive in most excessive force cases and that such evidence will positively impact the way those cases are litigated and decided. In doing so, it presents the first review of the evidentiary impact of bodycams on the outcomes of excessive force cases. By compiling and evaluating the first data set of reported excessive force cases filed in the federal courts involving bodycam evidence, this Article makes several findings about how this highly anticipated evidence is affecting excessive force litigation and jurisprudence. Those findings include (1) about one-third of all bodycam videos submitted in support of defense summary judgment motions do not capture the entire incident at issue in the lawsuit; (2) whether a bodycam video is complete or partial has a profound impact on summary judgment outcomes in bodycam cases; (3) bodycam evidence improves defendants’ likelihood of success on summary judgment in excessive force cases only if the bodycam video is complete; (4) defendants are actually more likely to prevail on summary judgment in excessive force cases without any bodycam video evidence than in cases with a partial bodycam video; and (5) summary judgment motions are filed and adjudicated more expeditiously in excessive force cases with bodycam videos (especially complete videos) than cases without bodycam evidence. These findings illustrate both the benefits and limitations of current bodycam technology, suggest the need for America’s police departments to accelerate the adoption of bodycam programs and promulgate policies that will maximize the evidentiary value and accuracy of bodycam evidence, and highlight the need for continued research to inform policy and funding determinations related to the use of bodycams by law enforcement.

McCall on Unconscionability in Contract Law

Brian McCall (University of Oklahoma - College of Law) has posted Demystifying Unconscionability: An Historical and Empirical Analysis on SSRN.  Here is the abstract:

The doctrine of unconscionability is encrusted with myths. First year law students are taught that the doctrine was created in the twentieth century. Unconscionability is often presented as a novel one, born in the Uniform Commercial Code’s adoption of Section 2-302 in the mid-twentieth century. Even those scholars who are willing to look a bit further afield than the twentieth century for the origins of the unconscionability doctrine typically only reach the mid eighteenth century. In addition to myths surrounding its origin, the doctrine has been presented as a dangerously vague and imprecise concept. Commentators and scholars have likewise characterized the doctrine as a license for courts to refuse, unpredictably and arbitrarily, to enforce some contracts. Some claim its application has the potential to destroy all of contract law. Beyond the fear mongering myths, another standard myth taught to first year law students is that to succeed on a claim of unconscionability a party must offer at least some proof of both procedural and substantive unconscionability.

This article will thus attempt to dispel the following three myths about unconscionability:
• It is a new, modern doctrine of law.
• Its application is unpredictable and arbitrary.
• To prevail a party must prove both procedural and substantive unconscionability.

The best way to dispel myths is through facts. This article attempts to clear the clouds of confusion and fear surrounding the doctrine by turning to historical and empirical fact. Part I of this article looks to the ancient past and finds that the idea that justice, and hence the law, should grant a remedy to at least some people who enter into inequitable bargains is as old as philosophizing about justice itself (and certainly older than the mid-eighteenth century). Rather than a dangerous modern innovation, this principle of justice has ancient philosophical roots in Aristotle and ancient legal roots in Roman law. Part II of the article summarizes prior attempts to assess the doctrine of unconscionability through empirical research by summarizing the results of prior work and identifies the limited scope of those projects. Part III contains the results of the comprehensive empirical analysis of what appears to be happening in cases involving claims of unconscionability in the period 2013-2017. A comprehensive coding process was undertaken for all reported federal and state cases decided over this five-year period. The results of the data analysis of 463 federal and state cases suggest that whatever the casebooks and law review articles claim about the doctrine, its application in real courts on the ground is very predictable and simpler than a two-part requirement suggests. The article concludes with a proposal to reformulate the doctrine to conform better to both its historical roots and its application by courts in real cases.

Poscher on Alexy's Theory of Principles (Link Fixed, Again!)

Ralf Poscher (Max-Planck-Institute for the study of Crime, Security and Law) has posted Resuscitation of a Phantom? On Robert Alexy’s Latest Attempt to Save His Concept of Principle on SSRN.  Here is the abstract:

This paper is my contribution to round three of a long-standing debate between Robert Alexy and me about the principles theory’s concept of principle. In the first round, Alexy – bucking tradition – proposed a non-gradualist distinction between rules and principles that divided the ontology of norms into two categorically distinct norm-types. He connected this norm-theoretical analysis with a theory of fundamental rights according to which such rights had to be understood as principles and thus interpreted as optimization requirements. In my habilitation some 15 years ago, I objected to the norm-theoretical assumptions and questioned the doctrinal merit of the principles theory approach. Unlike Alexy, I saw no merit in his notion of principle over and above optimization requirements, which by that time Alexy, too, regarded as rules. In round two, Alexy defended his concept of principle by taking refuge in the notion of an ideal ought, which he defined as a command to be optimized. In this second round, I criticized the new attempt to save his view of principles on the ground that the norms Alexy had in mind did not optimize commands but states of affairs and thus were ordinary norms or rules according to the misguided taxonomy of the principles theory. Alexy opened round three of our exchange by admitting that my critique of round two was justified and that he had erred in identifying principles as ideal commands to be optimized. He now proposes an index theory of principles. In the paper, I recapitulate the motive and the main points of our debate and scrutinize Alexy’s latest innovation. The goal of my critique is not so much to deconstruct an idiosyncratic norm-theoretical ontology but rather to break the spell that this misguided but in some parts of the world very influential theoretical position exerts on the interpretation of fundamental rights as optimization requirements.

Highly recommended.

Livingstone on Digital Constitutional Jurisprudence

Spencer Livingstone (Harvard Law School) has posted Beyond the Digital Analogy in Constitutional Law on SSRN.  Here is the abstract:

Digital technologies permit activities and modes of communications unthinkable just a few decades ago. They also throw into question longstanding doctrines in constitutional law: the Dormant Commerce Clause has long functioned through fixed boundaries between states; the First Amendment has long presumed that speech mediums have been meaningfully restricted; the Fourth Amendment has long taken for granted that what containers can hold is substantially limited, as is the government’s capacity to access those containers. At the birth of the digital era, commentators wrote extensively about whether new constitutional rules were necessary to adjudicate issues presented by digital technologies based on the progress those technologies were likely to undergo. And in the quarter century since the birth of that era, the Court has begun to grapple with constitutional questions introduced by those digital technologies.

This Article is the first to collect and analyze the Court’s digital constitutional jurisprudence. It shows that despite the range of technologies involved, the Court has overwhelmingly analyzed the constitutional significance of digital technologies according to the constitutional status of older, non-digital technologies. This Article coins that principle at the heart of the Court’s digital constitutional jurisprudence “the digital analogy” and explores the integrative benefits that principle has served in denying the need for new constitutional rules. Yet many of the Court’s famous errors regarding new technologies have stemmed from overreliance on the principle underlying the digital analogy, and in recent cases the Court has declined to accept it without articulating a theory for courts to use in evaluating when to move beyond the digital analogy to create digital-specific constitutional rules. This article presents such a theory by rooting the digital analogy in constitutional doctrine rather than technological sameness or novelty. It then uses this model of understanding the digital analogy to resolve a number of splits in state and circuit courts on whether constitutional issues presented by a particular technology lend themselves to the digital analogy. It concludes by arguing in favor of digital constitutional rules in specific circumstances.

Highly recommended.

Shinall on Pregnancy Discrimination & Paid Family Leave Laws

Jennifer Bennett Shinall (Vanderbilt University - Law School) has posted The Pregnancy Penalty (Minnesota Law Review, Vol. 103) on SSRN.  Here is the abstract:

Just forty years ago, employers legally could — and often would — discriminate against pregnant women in the workplace. Employment discrimination protections for pregnant women have vastly expanded since that time with the passage of the Pregnancy Discrimination Act (PDA) in 1978 and the Americans with Disabilities Act (ADA) in 1990. The reach of these statutes has expanded over the past decade, but many argue protections for pregnant women under the PDA and ADA remain inadequate. These arguments have been almost wholly based on accounts from litigated cases, with very little sense of the representativeness of these cases. Lack of relevant data and empirical scholarship have left scholars unable to say much about how a typical working woman is affected by pregnancy. Even now, virtually nothing is known about the frequency of, or the motivations behind, pregnancy discrimination in the labor market, which has undercut scholars’ ability to evaluate the performance of existing laws and the need for additional reform.

This Article is the first to fill in this missing, but critical, link within the pregnancy literature. Using data from the Behavioral Risk Factor Surveillance System, the Article documents a significant gap between the employment outcomes of pregnant women participating in the labor market and those of nonpregnant women. This pregnancy-based employment gap, which has persisted in spite of recent expansions in relevant legal protections, is as large and persistent as other well-known employment gaps along racial and ethnic lines. The data show that this pregnancy penalty goes well beyond the employment penalties for women who are mothers and can be most problematic for women who gain weight, become disabled, or have low levels of income or education. Relying on these findings, the Article concludes that improving the status of pregnant women in the workplace must become a priority for legislative reform and, using the data, demonstrates why the solution previously advocated by most scholars, the Pregnant Workers Fairness Act, is unlikely to be effective. Instead, the data reveal how new legislation based on already existing state paid family leave laws can successfully close the pregnancy-based gap in employment.

Galperin on Administrative Democracy

Joshua Galperin (University of Pittsburgh - School of Law) has posted The Death of Administrative Democracy (University of Pittsburgh Law Review, Forthcoming) on SSRN.  Here is the abstract:

Everybody agrees. Everybody is certain. There are no elected bureaucrats.

That pervasive certainty must come as quite a surprise to elected bureaucrats.

The federal bureaucracy presents examples of administrative elections, but the most significant is the United States Department of Agriculture’s elected farmer committees. There are over 7,500 elected farmers sitting on over 2,000 committees, and these committees carry out paradigmatic administrative duties including policymaking and adjudication.

Taking for granted that administrators are unelected, judges have shaped an ascendant doctrine of Presidentialism. This doctrine presumes that the administrative state is only legitimate insofar as it is under the direct control of the President because the President is electorally accountable. Presidentialist doctrine is based on majoritarian legitimacy. Surprisingly, were Presidentialist doctrine applied to the majoritarian, elected, farmer committees, it would strike them down because they are tied directly to voters rather than indirectly through the President. This suggests a weakness in Presidentialism: The theory relies on administrative majoritarianism but rejects electoral authority untethered from the President.

This article argues that both Presidentialism and electoral administration are flawed. Both rely on a one-dimensional oversimplification of democracy. Rather than tidying-up democracy by fitting it into mere majoritarianism, judges and scholars should focus on a more robust notion of democracy animated by, and accountable through, elections, but also fundamentally reliant individual participation, reason giving, and deliberation. This ideal of democracy has a long pedigree, but the novel consideration of electoral administration provides new insights and support.

 

Perlin on the National Security Exemption to FOIA

Paulina Perlin has posted Defense and Deference: Empirically Assessing Judicial Review of Freedom of Information Act’s National Security Exemption (Forthcoming in 11 Harvard National Security Journal _ (2020)) on SSRN.  Here is the abstract:

Described by some scholars as the “crown jewel of transparency,” the Freedom of Information Act (“FOIA”) allows the public to request records from executive agencies in order to provide insight into government activities and their legal justifications. To balance competing interests in public disclosure and government secrecy, FOIA also contains nine exemptions under which agencies may withhold requested information. However, many scholars, civil liberties advocates, and even judges have observed that this balance is off- kilter, particularly where national security information is concerned. FOIA’s first exemption, which allows the government to withhold information properly classified by executive order in the interest of national defense or foreign policy, has proven nearly impenetrable. Yet while plaintiffs’ slim success rate in Exemption 1 litigation is concerning, the litigation process’s quality is even more troubling. Despite congressional efforts to establish de novo review of withholdings under FOIA, many commentators suspect that courts largely rubberstamp the government’s Exemption 1 claims.

This Article is the first to test that claim empirically. It systematically classifies agencies’ court submissions by quality and analyzes that quality’s effects on case disposition. In this study, courts upheld the government’s Exemption 1 claims despite substandard submissions 76.2% of the time, and submission quality did not impact case outcome in any statistically significant way. This finding implicates not only the effectiveness of FOIA, but also key pillars of the American legal tradition, such as the presumption of transparency, democratic principles, and the legitimacy of the judicial process. It also calls into question the extent to which courts are willing to check the executive branch on national security matters, even when mandated to do so by Congress.

The Article then presents a probability reporting requirement as a novel and practically implementable solution that would not only encourage more meaningful judicial review, but would also incentivize the government to consider more carefully what information merits continued classification.