Dean Emeritus Donald Polden has published Lawyer Leadership in the Practice of Law, 14 Tenn. J. L. & Pol’y 435 (2020). In the article, Dean Polden surveys recent literature on the competencies and skills that are critical to the successful contemporary practice of law and considers how the practice of law and the fundamental lawyering skills and abilities have evolved over the last 30 years. In so doing, he debunks various myths about how leadership development is not relevant to the practice of law. Indeed, Dean Polden argues that leadership is a fundamental attribute of being an exemplary lawyer. Finally, Dean Polden articulates a comprehensive list of fundamental lawyering and leadership skills that law schools and law firms should focus on teaching and developing: technical competence, empathy, clear judgment, self-regulation and self-awareness, an appreciation of the need for change and the ability to envision change, the ability to be entrepreneurial, and the ability to influence, persuade, and establish credibility. Dean Polden concludes that “these skills and attributes will, over the long haul of one’s career as a lawyer, lead to a highly satisfying and rewarding career and one that includes the respect of others with whom the lawyer works in the practice of law.”
Professor Pratheepan Gulasekaram has authored a blog post on Balkinization titled Presidential Immigration Federalism. The post is Professor Gulasekaram’s contribution to a symposium focused on the book The President and Immigration Law (Oxford University Press, 2020) by Professors Adam Cox and Cristina Rodriguez which addresses the centrality of the president to immigration law and presents a model in which a presidential administration may both invite state and local participation in immigration enforcement and, conversely, end state enforcement efforts that are inconsistent with the administration’s policy choices. Professor Gulasekaram argues in his post that the Supreme Court’s recent decision in Kansas v. Garcia (U.S. 2020) complicates the immigration federalism analysis that Cox and Rodriguez develop in their book, shifting the balance in favor of treating subfederal entities as co-sovereigns independent from presidential control. In Kansas, the Court held that federal law did not preempt state fraud and identity-theft statutes used to prosecute noncitizens accused of using false identity information in seeking to secure employment. Although the Trump administration argued against federal preemption, Professor Gulasekaram suggests that Kansas might be read as extinguishing the role of presidential prerogatives in immigration federalism. He cites in particular to portions of the Court’s opinion rejecting a possible conflict with executive enforcement priorities as a sufficient basis for federal preemption and emphasizing instead that the immigration code must be central to preemption analysis. Professor Gulasekaram argues that Kansas “moves interested states from the periphery of immigration enforcement closer to its center, at least in the context of employment regulation. Far from “sidelining” the states, the Trump administration appears to have helped unbind them in ways that were jealously guarded by prior presidents.”
Professor David Sloss has authored a blog post on Opinio Juris (the leading blog dedicated to the informed discussion of international law) titled The Best Way to Regulate Disinformation, available at http://opiniojuris.org/2020/10/29/the-best-way-to-regulate-disinformation/. Professor Sloss identifies disinformation on social media as a significant threat to liberal democracies. He argues for a “separation of powers” solution to this threat that would allocate responsibilities among government, social media companies, and a publicly-funded, non-partisan, non-profit organization. Pursuant to Professor Sloss’s proposed regulatory scheme, the non-profit organization would have responsibility for discriminating between truth and falsehood, social media companies would have responsibility for warning persistent offenders, and the government would be empowered to temporarily ban persistent offenders from social media platforms. In his blog post, Professor Sloss anticipates and responds to several likely criticisms of his proposed reform grounded in practical, privacy, and libertarian concerns. He sums up his argument: “Unrestricted free speech on social media threatens to undermine the integrity of our democratic system, which is the foundation for robust protection of individual freedom. Therefore, ironically, we must adopt seemingly illiberal policies—namely, restrictions on free speech—to protect and promote the liberal commitment to individual freedom.”
Professor Evangeline Abriel and her co-authors have published Credibility Determinations in Removal Proceedings in 2020 AILA Virtual Immigration Court Conference: A Practical Skills Training (Rizwan Hassan, ed., American Immigration Lawyers Association 2020). An immigration judge’s adverse credibility finding can be devastating for the case of an applicant for asylum or other forms of relief from removal. In this article, Professor Abriel and her co-authors discuss the standards for credibility determinations under the Immigration and Nationality Act as interpreted by the courts and the Board of Immigration Appeals and offer suggested best practices for avoiding adverse credibility findings. The authors discuss at length common bases for adverse credibility findings, how practitioners might best deal with inconsistencies between testimony and prior statements made during border or airport arrival interviews, and the influence of race, gender, culture, and religion on credibility determinations especially when the applicant has suffered persecution which may influence their willingness to share facts during their initial border interview. Finally, Professor Abriel and her colleagues discuss ways to salvage an applicant’s petition for withholding of removal even in the face of an adverse credibility determination.
Dean Emeritus Donald Polden and his co-author Leah Jackson Teague (Baylor University School of Law) have published More Diversity Requires More Inclusive Leaders Leading by Example in Law Organizations, 48 Hofstra L. Rev. 681 (2020). Polden and Teague highlight why diversity and inclusion are fundamentally important to law firms, corporate counsel offices, government law departments, and legal education: not only do lawyers play an essential role in the fight for a more just and equitable society, but also, as the empirical studies they review demonstrate, workplace diversity and inclusion lead to a more innovative, creative, productive, and profitable enterprise. The authors report on data suggesting that law firms in particular recently have had only modest success in enhancing workplace diversity. They then make the case that committed and skilled leadership is essential to successful diversity and inclusion efforts given the significant headwinds that such efforts are likely to face. Finally, Polden and Teague set out best practices for effective leadership in this area, beginning with taking a hard look at the law organization’s current environment. They recommend that leaders articulate a clear vision of the diversity initiative’s objectives, maximize buy-in by explaining how diversity and inclusion benefit the organization and all of its members, and model their personal commitment to diversity and inclusion in their own behavior on a daily basis.
Professor E. Gary Spitko has published Reputation Systems Bias in the Platform Workplace, 2019 BYU L. Rev. 1271 (2020). Online reputation systems enable the providers and consumers of a product or service to rate one another and allow others to rely upon those reputation scores in deciding whether to engage with a particular provider or consumer. Reputation systems are an intrinsic feature of the platform workplace, in which a platform operator, such as Uber or TaskRabbit, intermediates between the provider of a service and the consumer of that service. Operators typically rely upon consumer ratings of providers in rewarding and penalizing providers. Thus, these reputation systems allow an operator to achieve enormous scale while maintaining quality control and user trust without employing supervisors to manage the vast number of providers who engage consumers on the operator’s platform. At the same time, an increasing number of commentators have expressed concerns that the invidious biases of raters impact these reputation systems. This article considers how best to mitigate reputation systems bias in the platform workplace. After reviewing and rejecting both a hands-off approach and the anti-exceptionalism approach to regulation of the platform economy, the article argues in favor of applying what the author labels a “structural–purposive” analysis to regulation of reputation systems discrimination in the platform workplace. A structural-purposive analysis seeks to ensure that regulation is informed by the goals and structure of the existing workplace regulation scheme but also is consistent with the inherent characteristics of the platform economy. Thus, this approach facilitates the screening out of proposed regulation that would be inimical to the inherent characteristics of the platform economy and aids in the framing of regulatory proposals that would leverage those characteristics. The article then demonstrates the merits of a structural–purposive approach in the context of a regulatory framework addressing reputation systems discrimination in the platform workplace. Applying this approach, the article derives several principles that should guide regulatory efforts to ameliorate the prevalence and effects of reputation systems bias in the platform workplace and outlines a proposed regulatory framework grounded in those principles.
Professor David Yosifon has published Corporate Law as An Existential Project, 88 Fordham L. Rev. 1801 (2020). In this essay, Professor Yosifon posits that corporate law can serve as a guide as we search for meaning in our lives and in our relationships with other people. In fleshing out this thesis, Professor Yosifon paints signposts with corporate law principles to guide our journey to make meaning. Corporate law dictates that the board of directors must act. We too must engage to find meaning. The business judgment rule insulates an informed unconflicted business decision regardless of whether the decision strays from the norm and no matter the outcome. Accordingly, if we act based on evidence as we think best, we should refrain from judging ourselves. Given the corporate law mandate that directors must seek profits for shareholders, directors need not think about what their purpose should be. Nor should we struggle to understand the purpose of our life. Rather, we should focus on means to achieve the default purpose of life—to be a good member of our family and community. The duty of loyalty is a cardinal principle of corporate law. The giving of loyalty has numerous rewards, including allowing us to see ourselves more clearly. Professor Yosifon concludes with a focus on the corporate law principle of volunteerism: “This volunteerism is prior to and supersedes the duty of loyalty. This is to say: you can always breach. And maybe you should. The future ‘cannot be colonized in advance.’ The power and vulnerability dictated by the fiduciary opportunities of care and loyalty may generate any kind of new, unexpected meaning, and if it is heretical to fiduciary scriptures, so be it. Something very different, very bold may come out. Law is not the destination. Law is the path.”
Professors Michelle Oberman, David Ball, and Michael Flynn, along with 11 of their students (Cydney Chilimidos, Miriam Contreras, Jenai Howard, Christina Iriart, Angela Madrigal, Leah Mesfin, Zachary Nemirovsky, Nicholas Newman, Nathanial Perez, Michael Pons, and PhilipYin) have published an open-licensed Crim Law Casebook available on Harvard Law School’s Open Casebook / H2O at opencasebook.org/casebooks/981-balloberman-crim-law-casebook-beta-version-undergoing-revision-until-august-15-2020/. In addition, Professors Oberman and Ball have published a companion open-licensed casebook titled Current Challenges in Criminal Law also available on H2O at opencasebook.org/casebooks/981-balloberman-crim-law-casebook-beta-version-undergoing-revision-until-august-15-2020/. This second text features audio and video material keyed to topics in the first.
This project grew out of the authors’ desire to transform legal education “to make learning and teaching more inclusive, less alienating, and less expensive.” The authors sought to create teaching materials for Criminal Law that were more thoughtful about issues of race, sex, and sexual orientation. Professors Oberman, Ball, and Flynn worked with their students to identify problem areas in traditional teaching materials, to explore how knowledge is produced and culture is transmitted, and to create teaching materials “designed to minimize the harms created by legal education’s historical tendency to ignore, if not enshrine, our collective biases.” The authors plan to follow up with a workshop in Spring 2021 to enable collaboration among professors and students who want to rethink the curriculum in a variety of subject areas.
Professor Stephen Smith has published The Right to a Public Trial in the Time of COVID-19, 77 Washington and Lee L. Rev. Online 1 (2020). The Sixth Amendment protects a criminal defendant’s right to a public trial lest our criminal courts become instruments of persecution. This right, however, is not absolute. A court may order a criminal trial to be closed to the public when the government has “an overriding interest” in doing so and the closure is narrowly tailored to serve that interest. In his article, Professor Smith considers how the COVID-19 pandemic and the related need for social distancing should factor into a court’s analysis of a criminal defendant’s public trial right. Professor Smith posits that “protecting public health is indisputably an ‘overriding’ interest.” He further argues that, given the nature of the pandemic threat and a lack of reasonable alternatives to courtroom closure, the exclusion of spectators from a criminal trial courtroom during the COVID-19 pandemic “should pass constitutional muster almost categorically, rather than as determined on a case by case basis.” The article also proposes several alternative means of serving the purposes of the Sixth Amendment right to a public criminal trial during the pandemic, including verbatim transcripts, audio recordings, and live video feeds. “In the ordinary course, the right to a public trial is not fully realized by the availability of transcripts or the presence of cameras. But in this time of COVID, when courtroom closures are otherwise justifiable when viewed through the [Supreme Court precedent] lens, these tools provide a ‘backstop,’ a check to ensure that the values of the right are honored, in some degree.”
Professors Mary Louise Fellows (University of Minnesota Law School) and E. Gary Spitko have published How Should Non-Probate Transfers Matter in Intestacy? in 53 U.C. DAVIS L. REV. 2207 (2020). As American family structures have become more heterogeneous, status-based intestacy statutes have become less suited to promoting donative intent. Indeed, numerous scholars of wealth transfer law have noted the critical need for intestacy law reform to address the needs of decedents whose donative intent does not comport with traditional family norms. Professors Fellows and Spitko propose addressing this concern by looking to intestate decedents’ non-probate transfers, such as a revocable trust, life insurance policy, 401(k) account, brokerage account, or joint tenancy with right of survivorship deed. In 2010, Fellows and Spitko, along with Charles Q. Strohm, published the first study to consider the relationship between donative intent with respect to the probate estate and donative intent as expressed in non-probate transfers. That study utilized a factorial research design to assess public attitudes and offered support for a “new heir” hypothesis, that, depending on the identity of the non-probate transfer and the identity of the existing heir, a decedent would want a non-probate transfer beneficiary who is not otherwise an heir to be treated as an heir. The instant two-part study of estate planners produces additional knowledge about how best to integrate non-probate transfers into intestacy statutes. In the first part of the study, Fellows and Spitko conducted a paper survey of forty-five estate planners. The responses to this survey greatly influenced the second part of the study in which Fellows and Spitko conducted in-person or telephone interviews with nineteen estate planners. The findings reported in this study provide the framework for statutory reform. This study demonstrates that the new heir reform increases the likelihood of promoting intestates’ donative intent in a growing number of twenty-first century familial situations.
Professor Eric Goldman and his co-author Jessica Silbey (of Northeastern University School of Law) have published Copyright’s Memory Hole at 2019 BYU L. Rev. 929 (2020). Their article focuses on the use of copyright to protect the privacy and reputation interests of people who are depicted in copyrighted works. Copyright law seeks to encourage the publication and dissemination of socially valuable works, perhaps counterintuitively, by giving to the author of a work the right to suppress the work from the public. Goldman and Silbey concede that in limited circumstances the public interest (and the goals of copyright law) may be served when copyright is used to protect privacy interests. For example, copyright protection of never-disseminated works during the author’s lifetime may safeguard the author’s intellectual freedom and enhance authorial productivity. The authors conclude, however, that society suffers on balance when copyright law is used as a sort of privacy tort. Copyright holders who are concerned about their privacy or reputation may suppress works that otherwise benefit society: “Copyright law is being misdeployed by suppressing socially valuable works in a counterproductive attempt to advance privacy and reputation interests … result[ing] in “memory holes” in society’s knowledge, analogous to those discussed in George Orwell’s dystopian novel 1984.” After exploring why and how copyright law has become a favorite tool to manage privacy and reputation interests and how these efforts complement or conflict with the goals of copyright, the authors advance several reform proposals to limit misuse of copyright to create memory holes, including enhancing the fair use doctrine, awarding attorney fees more routinely to prevailing defendants, applying federalized anti-SLAPP protection to copyright cases brought to advance privacy interests at the expense of socially beneficial speech, and limiting the duration of copyright protection to parallel the duration of privacy claims when the plaintiff seeks to use copyright to advance privacy interests.
Professor Michelle Oberman and her colleagues have published Confronting the Challenge of the High-Conflict Personality in Family Court, in 52 FAM. L. Q. 79 (2020) (with Esther Rosenfeld, Jordan Bernard, and Erika Lee). This empirical study focuses on family law cases that involve a litigant with a personality disorder and that drag on for years despite reasonable options for resolution. Informed by the relatively sparse literature on high-conflict personalities in the family law system, Professor Oberman and her co-authors interviewed experienced family law practitioners, family law judges, and a seasoned custody evaluator with the goal of increasing knowledge about the harms associated with high-conflict personalities in the family law system, the forces that perpetuate these protracted disputes, and possible means to ameliorate the problem. Professor Oberman and her colleagues report on the major themes that emerged from their interviews with family law experts and propose a series of reforms suggested by these findings. “The optimal means for resolving these cases lies in recognizing that the high-conflict party is drawn to the conflict, rather than to settlement, and devising effective means of disengaging and de-escalating the dispute.” To that end, “family law attorneys and judges alike would benefit from thoughtful education aimed at deepening their understanding of personality disorders and learning effective ways to communicate and work with such individuals.”
Professor Evangeline Abriel and her co-authors have published Crimes Involving Moral Turpitude: Changing Definitions and Strategies in IMMIGRATION PRACTICE POINTERS: TIPS FOR HANDLING COMPLEX CASES (Dan Berger et al. eds. 2020). A noncitizen who commits a crime involving moral turpitude (CIMT) may thereby be subject to removal from the United States under the Immigration and Nationality Act. The Act, however, does not define the term “crime involving moral turpitude” and case law on the term’s meaning has evolved frequently. In this chapter, Professor Abriel and her colleagues begin by discussing current caselaw and trends in CIMT analysis. They then advance several strategies for defeating a CIMT-based removal action. First, given that the Board of Immigration Appeals has recently sought to expand the scope of offenses that qualify as a CIMT, the authors focus at length on arguments for avoiding a retroactive application of a Board of Immigration Appeals action. Second, after concluding that the term “crime against moral turpitude” is “an evolving nebula”, the authors explicate several arguments that the Immigration and Nationality Act’s CIMT provision is unconstitutionally vague. Finally, Professor Abriel and her colleagues argue that courts should not give deference to the Board of Immigration Appeals’ interpretation of the term “crime involving moral turpitude” given that the Board has no expertise in interpreting state criminal law, that it has engaged in arguably ends-driven decision making, and that the Board’s deviation from its previous interpretation has negatively implicated prior reliance interests.
Professor Stephen Diamond has published Insider Trading: A Clash between Law and Economics in Oxford Research Encyclopedia of Economics and Finance (Oxford University Press 2020). Professor Diamond’s chapter surveys the evolution of the legal concept of insider trading, summarizes the debate about insider trading among legal and economics scholars, and, finally, explores new frontiers for research on insider trading. Diamond notes that regulation of insider trading seeks to address a classic “lemons problem” in which information asymmetry threatens to “undermine the integrity of the [securities] market, causing potential buyers to discount prices they are willing to pay and, in turn, causing sellers of high-quality goods (in this case, securities) to withdraw.” Diamond goes on to consider the law and economics arguments that challenge the current breadth of regulation of insider trading, with special attention to those arguments rooted in the notion that the right to trade on insider information is “a property right that a firm should be able to allocate in order to maximize overall value of the enterprise.” Diamond concludes that the arguments raised by critics of insider trading regulation have serious limitations yet should be taken seriously: “In doing so, we help highlight areas where theory is under-developed and empirical research is needed to grasp the significance of a fairness/integrity-based alternative argument for regulatory intervention.”
Dean Emeritus Donald Polden has published Restraints on Workers’ Wages and Mobility: No-Poach Agreements and the Antitrust Laws in 59 SANTA CLARA L. REV. 577 (2020). Dean Polden focuses principally on two types of restraints on worker mobility and compensation – (1) “no-poach” agreements by which companies mutually agree to refrain from soliciting certain of each other’s employees and (2) agreements across companies to limit the compensation of certain classes of workers. Polden considers at length the relatively recent use of such agreements by prominent Silicon Valley technology companies and the economic and conceptual difficulties that government agencies and courts must confront in applying antitrust laws to these agreements. Polden highlights the harms to workers arising from these agreements—principally suppressed wages and inferior terms of employment—and argues that the agreements at issue “have few pro-competitive justifications.” Ultimately, he rejects application of a “rule of reason” analysis and argues instead for application of a “per se” rule and “quick-look” analysis for antitrust claims relating to these restraints on worker mobility and compensation. “Courts should steer away from application of the rule of reason in cases involving no-poach and similar highly restrictive covenants or agreements because such analysis produces greater uncertainty for resulting litigation. In contrast, the clarity enabled by judicial application of the per se and quick-look forms of analysis in Section 1, Sherman Act cases can prevent the most egregious forms of cartel wage suppression such as no-poach and no-hire agreements by providing clear guidance to corporations.”
Professor Stephen Smith has published “Asking Too Much: The Ninth Circuit’s Erroneous Review of Social Security Disability Determinations,” 24 Lewis & Clark L. Rev. Online 1 (2020). In Garrison v. Colvin (759 F.3d 995 (9th Cir. 2014)), the U.S. Court of Appeals for the Ninth Circuit adopted a unique and more demanding approach to judicial review of certain Social Security Administration (SSA) disability determinations, requiring that the SSA provide “clear and convincing” reasons for certain findings. In sum, Professor Smith argues that “In the SSA context, the Ninth Circuit’s heightened standard is not only wasteful in its disregard of lower court decision making, it is contrary to Congress’s wishes.” Here is the article’s abstract: “Disability determinations made by the Social Security Administration’s administrative law judges are subject to judicial review by Article III courts. By statute, these courts apply the “substantial evidence” standard of review on appeal from the agency. The substantial evidence standard is a forgiving one that defers to the findings of the agency. But the Ninth Circuit Court of Appeals has modified this standard. It now reviews certain categories of SSA findings not only for substantial evidence, but for support by “clear and convincing reasons.” This heightened standard of review is facially at odds with the statutorily mandated substantial evidence standard. It also undercuts the principle of deference given to the initial fact finder by the substantial evidence standard of review.”