March 19, 2021

Evans’s Article Accepted for Publication in George Washington Law Review

Professor Sheldon A. Evans’s article Pandora’s Loot Box has been accepted for publication in the George Washington Law Review. The paper explores his interests in how emerging technology overlaps with criminal regulation in the underdeveloped legal study of virtual worlds.

Here is an abstract of the article:

The emerging trend of loot boxes in video game platforms continues to expand the shifting boundaries between the real and virtual world and presents unique insights into the impact each world should have on the other. Borrowing their design from the gambling industry, loot boxes operate as a hybrid between slot machines and trading cards. A consumer pays real-world money to buy a virtual box without knowing its contents. Upon opening the box, the consumer receives a virtual good that may be of great value, but more commonly is of little or no value.

This Article contributes a novel theory of virtual valuation that reframes how we should think about loot boxes, but also more generally about the influence that virtual goods have in the real world. Scholars have presented differing views regarding the ownership, sale, and taxation of virtual goods, but have always relied upon virtual goods’ real-world value to determine their real-world significance. This Article rejects this dominant value construct by tailoring the economic principal of perceived value for the virtual world. By valuing a virtual good based on the perceived benefit it can bring in the virtual world—irrespective of any real-world value—it becomes clear that consumers are driven to gamble for virtual goods in loot boxes based on the potential prizes’ perceived value. Using this new framework, the Article argues that loot boxes should be regulated similarly to the gambling industry it mimics. After considering the policy ramifications of loot box regulation, the Article concludes by exploring the contribution that perceived virtual value can have in the many legal contexts outside of gambling and loot boxes that also rely upon the value of virtual goods to determine real-world significance.

Sheldon A. Evans
Assistant Professor of Law
March 17, 2021

DeGirolami has Two Articles Accepted for Publication

Professor Marc DeGirolami has had two pieces accepted for publication. “Reconstructing Malice in the Law of Punitive Damages” was accepted by the Journal of Tort Law, and “Establishment’s Political Priority to Free Exercise” was accepted by the Notre Dame Law Review. The abstracts are below.

“Reconstructing Malice in the Law of Punitive Damages”

Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.

This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.

“Establishment’s Political Priority to Free Exercise”

American law is beset by deep disagreement about the First Amendment. Legal scholars are attacking the venerable liberal view that it is wrong to curtail First Amendment rights to secure communal, political benefits. To prioritize First Amendment rights, they say, reflects “rightsism,” an unjust inflation of individual interest over the interests of the political community. These disagreements afflict the Religion Clauses as well. Critics claim that religious accommodation has achieved political priority to the values of disestablishment that define the political community. Free exercise, they argue, has subordinated establishment.

This Article contests these views. Its central claim is that the considerations reflected in establishment—understood broadly to include what it calls the civil religion regime—have now, and have always had, political priority to those concerning free exercise, insofar as free exercise protects a right of religious exemption. Religious accommodation’s contemporary ascendance is an epiphenomenal consequence of the civil religion regime dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty-first. Though today’s most divisive law and religion controversies often take surface-level legal shape as questions about free exercise accommodation, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the gains of the twentieth century dismantlers, as well as efforts toward consolidation of those gains to achieve a new church state, civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.

Marc O. DeGirolami
Cary Fields Professor of Law
Co-Director, Center for Law and Religion

March 12, 2021

Evans’s Article to be Published in the University of Pennsylvania Law Review

Professor Sheldon A. Evans’s article, Interest-Based Incorporation: A Statutory Story of Federalism, Delegation, and Democratic Design, has been accepted for publication in the University of Pennsylvania Law Review. The paper continues his work exploring inefficiencies and moral dubiety when federal statutes incorporate state laws that have important policy implications across criminal law, immigration, property, and other areas. 

Here is an abstract of the article:

Interpreting statutes is a rare legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This scholarly conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into federal statutes. Statutory incorporation is one of the most common legislative tools employed by Congress and has been used to enact hundreds of federal statutes that affect liberty and property rights across multiple areas of law. 

Scholars have argued that statutory incorporation should be interpreted according to Congress’s intent to forward goals of federalism that seeks to diffuse federal power to the states or as a tool to delegate federal law-making authority to state legislatures. This Article offers an alternative explanation of interest-based incorporation, which displaces the federalism and delegation theories that fall short when held up to the scrutiny of realism. Interest-based incorporation argues that federalism and delegation theories are fictions of congressional intent. By understanding that statutory incorporation is a tool to promote congressional self-interests, interest-based incorporation makes an important contribution at the theoretical and practical crossroads necessary to understand statutory incorporation. As a realist intervention, interest-based incorporation carries important implications for the future of statutory incorporation as well as scrutinizing the fictions that dominate theories of interpretation.

Sheldon A. Evans
Assistant Professor of Law
March 11, 2021

Krishnakumar Speaks at Harvard ACS Event

On Wednesday, March 10th, Professor Anita S. Krishnakumar participated in a panel discussion titled “Progressive Theories of Statutory Interpretation:  Responses to Textualism and Beyond,” sponsored by the Harvard chapter of the American Constitution Society. The event, which was held virtually, brought together several prominent statutory interpretation scholars who shared their views about the current state of statutory interpretation in the U.S. Courts — including the ascendance of textualism, the proper role of legislative history, and the like. The other panelists included Matthew Stephenson (Harvard), Victoria Nourse (Georgetown), Larry Solan (Brooklyn), and Ryan Doerfler (Chicago).

Anita S. Krishnakumar
Mary C. Daly Professor of Law
March 11, 2021

Greenberg Presents and is Elected Regent Chair

On March 5, 2021, Professor Elayne E. Greenberg presented Disclosing Third-Party Funding in IP Mediations: Ethics, Economics & Power at the University of Texas School of Law’s 20th Annual Intellectual Property Law Journal Symposium.

On February 25, 2021, Professor Greenberg presented If I’m So Smart, Why Won’t My Clients Follow My Advice at Turnaround Management Association’s Distressed Investing Conference focusing on From Impact to Innovation.

In January 2021, Professor Greenberg was elected Regent Chair of the Executive Board of the AALS ADR Section.

Elayne E. Greenberg
Assistant Dean for Dispute Resolution Programs
Professor of Legal Practice
Faculty Director, Hugh L. Carey Center for Dispute Resolution
March 10, 2021

Greenberg’s Article Published in the Journal of Criminal Law & Criminology

Professor Elayne E. Greenberg’s article Unshackling Plea Bargaining from Racial Bias has been published in the Journal of Criminal Law & Criminology, Vol.111, Issue No.1. This article traces the origins of racial bias in plea bargaining by chronicling the historical relationship among three societal developments: the continuation of slavery, the development of our criminal justice system, and the evolution of plea bargaining. The article then explains how the structure of plea bargaining as it is practiced today makes it likely for these historical racial biases to fester and manifest themselves. Culling from the research of cognitive psychologists, dispute system design scholars, and anti-racism educators, this article prescribes organizational and procedural reforms to unshackle plea bargaining from racial bias.

The article is available here.

In addition, Professor Greenberg’s article Hey, Big SpenderEthical Guidelines for Dispute Resolution Professionals when Parties are Backed by Third-Party Fundersoriginally published in the Arizona State Law Journal (Spring 2019), has been republished in the book Mandatory Disclosure Rules for Dispute Financing, published by the Center on Civil Justice, New York University School of Law. The book also includes Professor Greenberg’s follow-up article Please Ask, Please Tell: Disclosing Third-Party Funding in Mediation.

Elayne E. Greenberg
Assistant Dean for Dispute Resolution Programs
Professor of Legal Practice
Faculty Director, Hugh L. Carey Center for Dispute Resolution
March 10, 2021

Krishnakumar’s Article to be Published in the Virginia Law Review

Professor Anita S. Krishnakumar‘s article, Statutory History, has been accepted for publication in the Virginia Law Review.  The paper explores the U.S. Supreme Court’s practice of examining prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about a statute’s meaning. 

Here is the abstract:

The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes.  Indeed, Justice Scalia himself was famous for dissenting from paragraphs, sentences, or even footnotes in opinions that so much as casually mentioned a statute’s legislative history, even as corroboration for an interpretation reached through textual analysis.  A less well-known corollary of modern textualism’s aversion to legislative history, however, is that textualists are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about the statute’s meaning.  In fact, textualist Justices regularly use this kind of “statutory history” to draw inferences about a statute’s substantive meaning, even as they criticize the use of other more traditional forms of legislative history.

It is at once surprising and instructive that textualists have embraced this kind of “statutory history” while rejecting traditional legislative history.  On the rare occasions when they have acknowledged this dichotomy, textualists have sought to distinguish statutory history from traditional legislative history on the ground that the former involves comparisons of enacted statutory language, rather than mere commentary by legislators.  Scholars have, largely uncritically, tended to accept these distinctions.  But no one to date has studied the judicial use of statutory history in any significant detail, nor has anyone evaluated whether the theoretical justifications textualists offer for their use of statutory history, as distinct from traditional legislative history, hold up in practice.  

This Article provides the first empirical and doctrinal examination of how the U.S. Supreme Court employs statutory history to determine a statute’s substantive meaning.  Based on a study of 574 statutory cases decided during the Roberts Court’s first thirteen-and-a-half terms, the Article catalogues five different forms of statutory history inferences employed by the modern Court.  It finds that (1) the Justices on the Roberts Court exercise significant discretion when drawing inferences from statutory history; and (2) while some of the statutory history inferences the Court draws are consistent with the theoretical justifications textualists have offered, many involve unenacted legislative materials or venture beyond traditional text-based analysis—and are difficult to distinguish from traditional legislative history or other contextual purposive evidence that textualists reject.  In the end, the Article suggests that textualists should either abandon their reliance on statutory history altogether or, preferably, broaden their interpretive toolkit to include other forms of background legislative context evidence, at least as a check on the inferences they draw from statutory history. 

Anita S. Krishnakumar
Mary C. Daly Professor of Law
March 1, 2021

Krishnakumar Presents at USC

On February 11th, Professor Anita S. Krishnakumar presented a draft of her paper, Statutory History, at a faculty workshop at the University of Southern California Law School (USC).  The paper explores the U.S. Supreme Court’s practice of examining prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about a statute’s meaning. 

Here is the abstract:

The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes.  Indeed, Justice Scalia himself was famous for dissenting from paragraphs, sentences, or even footnotes in opinions that so much as casually mentioned a statute’s legislative history, even as corroboration for an interpretation reached through textual analysis.  A less well-known corollary of modern textualism’s aversion to legislative history, however, is that textualists are perfectly willing to examine prior versions of a statute—i.e., earlier drafts of the bill that ultimately became law or the original version of a statute that has since been amended—to speculate about the statute’s meaning.  In fact, textualist Justices regularly use this kind of “statutory history” to draw inferences about a statute’s substantive meaning, even as they criticize the use of other more traditional forms of legislative history.

It is at once surprising and instructive that textualists have embraced this kind of “statutory history” while rejecting traditional legislative history.  On the rare occasions when they have acknowledged this dichotomy, textualists have sought to distinguish statutory history from traditional legislative history on the ground that the former involves comparisons of enacted statutory language, rather than mere commentary by legislators.  Scholars have, largely uncritically, tended to accept these distinctions.  But no one to date has studied the judicial use of statutory history in any significant detail, nor has anyone evaluated whether the theoretical justifications textualists offer for their use of statutory history, as distinct from traditional legislative history, hold up in practice.  

This Article provides the first empirical and doctrinal examination of how the U.S. Supreme Court employs statutory history to determine a statute’s substantive meaning.  Based on a study of 574 statutory cases decided during the Roberts Court’s first thirteen-and-a-half terms, the Article catalogues five different forms of statutory history inferences employed by the modern Court.  It finds that (1) the Justices on the Roberts Court exercise significant discretion when drawing inferences from statutory history; and (2) while some of the statutory history inferences the Court draws are consistent with the theoretical justifications textualists have offered, many involve unenacted legislative materials or venture beyond traditional text-based analysis—and are difficult to distinguish from traditional legislative history or other contextual purposive evidence that textualists reject.  In the end, the Article suggests that textualists should either abandon their reliance on statutory history altogether or, preferably, broaden their interpretive toolkit to include other forms of background legislative context evidence, at least as a check on the inferences they draw from statutory history. 

Anita S. Krishnakumar
Mary C. Daly Professor of Law
February 22, 2021

Lazaro Presents, Moderates, and Authors

On February 17th, Professor Christine Lazaro presented to the Oregon Bar Association Securities Regulation Section on the SEC’s Regulation Best Interest, along with Hasan Ibrahim, Chief Legal Officer at Prudential Advisors. They provided the Section with an overview of the regulation and discussed how it is being implemented by brokerage firms as well as the role of the regulators in the early stages of the regulation’s implementation. 

In January 2021, Professor Lazaro presented at the AALS Annual Meeting’s Section on Employee Benefits and Executive Compensation panel, “Working in a New World – Employee and Worker Benefits Re-examined in a Time of Crisis.” Professor Lazaro discussed a working paper that examines the regulation of IRAs, specifically when handled by securities brokers. 

Between September 2020 and January 2021, Professor Lazaro moderated a four-part webinar series for the Public Investors Advocate Bar Association (PIABA) on the Fundamentals of FINRA Arbitration. The program covered all aspects of the FINRA arbitration process, from vetting cases to the arbitration hearing. 

In October 2020, Professor Lazaro moderated a panel at PIABA’s Annual Meeting entitled, “Life under Regulation Best Interest.” The panel examined the implementation of Regulation Best Interest. Professor Lazaro authored the article An Overview of the Regulation Best Interest Rule Package for the program materials. The article was also published in the PIABA Bar Journal. Additionally, Professor Lazaro’s students, Cameron Michelson and Theodore Ryan, co-authored the article Regulation Best Interest: FINRA and SEC Guidance, which was also included in the program materials.   

Christine Lazaro
Professor of Clinical Legal Education
Director, Securities Arbitration Clinic
February 16, 2021

Barrett’s “RBG and the Girls”

Professor John Q. Barrett published a short essay, “RBG and the Girls,” in the current New York State Bar Association Journal (Jan./Feb. 2021).  It describes how he, at the Second Circuit Conference in 2018, witnessed Justice Ruth Bader Ginsburg interact with three star-struck girls in the conference center’s back hallway.

Click here to get to SSRN, for an abstract and to download the essay.  It is also available here on the NYSBA website.

This photograph, taken by Professor Barrett, accompanies the essay:

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