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Warranty, Product Liability and Transaction Structure: The Problem of Amazon
No full textAmazon, and other internet sales platforms, have revolutionized the manner in which goods are purchased.' This was true even before the current pandemic. While the centrality of Amazon in the sale and distribution of consumer goods in America is now in high relief, the obligations undertaken by Amazon in those sales are unclear, both as a matter of transparency, and as a matter of legal doctrine. Is it a store? Is it a shipper? Is it a telephone? In various transactions Amazon can play some or all of these roles. Choosing the right metaphor has consequences. Amazon knows this and has done everything it can to deploy the metaphors selectively to its best legal and practical advantage, even when the chosen characterizations are inapt or even mutually inconsistent.
Consumer goods of all sorts are sold using the Amazon platform. Some are sold directly by Amazon or its subsidiaries such as Whole Foods, but many goods sales are, Amazon argues, merely intermediated. Buyer and seller find each other on the Amazon platform; Amazon merely facilitates their transaction. Sometimes, however, items bought through the Amazon platform explode. E-Cigarettes and hoverboards have caught fire. Faucets have malfunctioned flooding houses, and dog collars have snapped. In
these cases, Amazon has claimed to be a stranger to the transaction, and until recently, courts have been willing to go along.' In an earlier article, we explored whether Amazon should be considered a "seller" for the purposes of product liability when a customer purchases goods from a third-party seller using the Amazon platform.' 2 We concluded that the answer was, "Yes." We examined the relationship between Amazon and the third-party seller, and considered the extent to which Amazon controlled all aspects of the sale.' We also noted, to a lesser extent, the way in which the consumer experienced the sale process."
The purpose of this article is, to extend that analysis to include the law of contracts-principally the law of warranty. We ask the next question: Should Amazon be considered a "warrantor" for the purposes of making the implied warranty of merchantability when it serves as an intermediary between a third-party seller and a consumer buyer
Olmstead Enforcements for Moderate to Severe Brain Injury: The Pursuit of Civil Rights Through the Application of Law, Neuroscience, and Ethics
No full textOur Article considers what the legal system can do to identify and support the recovery and reintegration of persons with severe brain injury, suffering from disorders of consciousness. We explore the possibility of marshaling law to advocate for this cohort of
patients, who are currently overlooked by the medical and legal systems. Despite their potential for recovery, many of these individuals remain segregated in nursing homes, where they do not receive adequate medical care, much less the rehabilitation that might permit the restoration of functional communication, which is so central to their reintegration to the nexus of their homes and families. Deprived of these medical interventions, these patients are further isolated and segregated from civil society. We view this situation as unethical and as a violation of the American with DisabilitiesA ct. To remedy this violation of law, we explore the application of Olmstead enforcements to patients with severe brain injury. We trace the legal evolution of disability law and Olmstead enforcements, deriving from the leading United States Supreme Court case regarding deinstitutionalization and community reintegration, Olmstead v. L.C. ex rel. Zimring. Our Article highlights how Olmstead could be used in an effort to
desegregate and reintegrate those with hidden consciousness back into their communities
MDL Revolution
No full textOver the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges-who formally have only pretrial jurisdiction over individual cases-have resorted to extraordinary procedural exceptionalism to settle cases on a national scale. Substantive state laws, personal jurisdiction, transparency, impartiality, reviewability, federalism, and adequate representation must all yield if doing so fulfills that one goal.
Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis-and unprecedented opposition to it-MDL is finally in public view. State attorneys general have resisted the opioid MDL's intense nationalism, its relentless drive to global settlement, its wild procedural innovation, its blurring of differences across state law, and its dramatic assertions of jurisdictional authority. Opiates is the most extraordinary MDL yet, but most big MDLs share many of its features, and Opiates is already the roadmap for the next mega-cases. Moreover, even as resistance to Opiates has dispersed some of the MDL's early power, that resistance itself has come in the form of unusual procedural mechanisms.
MDL is designed for individual cases-giving similar suits filed in different districts an efficient pretrial process before sending them home for trial. In reality, that is pure fiction. Few cases ever return. And the MDL's mode of coordination-from its antit federalism stance to its insistence that each proceeding is too unique to be confined by the Federal Rules-chafes at almost every aspect of procedure's traditional rules and values. MDL is not-so-secretly changing the face of civil procedure.
This Article weaves together for the first time these exceptional features of MDL and their disruption of procedure's core assumptions. Is MDL a revolution? Or simply a symptom of a larger set of modem procedural tensions manifesting in many forms?
Either way, it begs the question: What do we expect of litigation on this scale
Footloose with Green Shoes: Can Underwriters Profit from IPO Underpricing?
No full textWhy are green shoe options used in initial public offerings (IPOs)? And why do underwriters usually short sell an issuer’s stock in connection with its IPO? Are underwriters permitted to profit from these trading positions? Scholars have long argued that underwriters use green shoe options together with short sales to facilitate price stabilizing activities, and that U.S. securities laws prohibit underwriters from using green shoe options to profit from IPO underpricing. This Article finds the conventional wisdom lacking. I find that underwriters may permissibly profit from IPO underpricing by pairing purchases under a green shoe option with offshore short sales. I also find that underwriters may permissibly profit from IPO overpricing by short selling the issuer’s stock in the initial distribution. The possession of a green shoe option and the ability to short sell IPOs effectively makes underwriters long a straddle at the IPO price. This position creates troubling incentivizes for underwriters to underprice or overprice IPOs, but not to price them accurately. This new principal trading theory for green shoe options and underwriter short sales provides novel explanations for systematic IPO mispricing, the explosive initial return variability during the internet bubble, and the observation of “laddering” in severely underpriced IPOs
Guns and Property Preference: Testing the Impact of Gilles and Cynicism Conjectures Using Survey Data
No full textIn most states, a guest may carry a firearm onto a landowner's property unless the landowner expressly objects.' We have argued that it would be better to flip this "right-to-carry default" to require any gun carrier to seek the explicit permission of the landowner before bringing a firearm onto their property ("no-carry default").2 In response, Stephen Gilles suggested that there might be a stronger case to be made for flipping the defaults in shall issue or constitutional carry jurisdictions than in may issue jurisdictions, where it is more difficult to obtain a concealed carry permit. In constitutional carry jurisdictions, any gun owner of age who does not fall into federal or state prohibited classes may openly or concealed carry a weapon. There are currently fifteen constitutional carry jurisdictions. Shall issue jurisdictions require that licensing officials accept any application for a concealed carry permit so long as the individual does not meet any of the disqualifying criteria. This means that anyone who wishes to concealed carry will be able to attain a permit so long as they are not precluded by federal and state regulation. There are currently thirteen no discretion shall issue jurisdictions. In may issue jurisdictions, the licensing agent may choose to reject a permit application for failure to show good cause to require a concealed carry permit
"By Accident of Birth": The Battle over Birthright Citizenship After United States v. Wong Kim Ark
No full textIn theory, birthright citizenship has been well established in U.S. law since 1898, when the Supreme Court held in United States v. Wong Kim Ark that all born on U.S. soil are U.S. citizens. The experience of immigrants and their families over the last 120 years tells a different story, however. This article draws on government records documenting the Wong family’s struggle for legal recognition to illuminate the convoluted history of birthright citizenship. Newly discovered archival materials reveal that Wong Kim Ark and his family experienced firsthand, and at times shaped, the fluctuating relationship between immigration, citizenship, and access to civil and political rights. The U.S. government reacted to its loss in Wong’s case at first by refusing to accept the rule of birthright citizenship, and then by creating onerous proof-of-citizenship requirements that obstructed recognition of birthright citizenship for certain ethnic groups. But the Wong family’s story is not only about the use and abuse of government power. Government records reveal that the Wongs, like others in their position, learned how to use the immigration bureaucracy to their own advantage, enabling them to establish a foothold in the United States despite the government’s efforts to bar them from doing so
Toward a Touchstone Theory of Anti-Racism: Sex Discrimination Law Meets #LivingWhileBlack
No full textWhite supremacy and anti-Black racism continue their pervasive and destructive paths in contemporary American society. From the murder of George Floyd to the daily exclusions of Black bodies from white spaces, the nation’s failure to right the wrongs of chattel slavery and racism continues to be highlighted in stark relief. This article centers the racism made manifest through #LivingWhileBlack aggressions and examines it through the lens of two sex discrimination law doctrines: sex stereotyping and protections against sex discrimination in public accommodation laws. It asks what work can sex discrimination law do for the project of dismantling anti-Black racism and white supremacy, specifically in public and recreational spaces? The article contends that these two threads of sex discrimination law are generative of a new lens through which to analyze and address #LivingWhileBlack aggressions. It does so by introducing the concept of a “White Privilege Stereotype,” a form of racial stereotyping through which white people seek to retaliate against Black people when Black people engage in activities coded as “white,” often in places that are also coded as “white.” Black people challenge the privileges of whiteness by seeking to enjoy those privileges in the same way they are enjoyed by white people, which causes white observers to lash out and retaliate. Conceptualizing #LivingWhileBlack aggressions in this way creates a link to sex stereotyping and thus to the body of sex discrimination law that both recognizes and prohibits sex stereotyping. The article makes this conceptual link by drawing an analogy between how gender and racial hierarchies have been preserved, in part, through stereotyping and the policing and punishing of the oppressed group’s nonconformity with such stereotypes. It proposes a “touchstone” theory of inquiry for understanding #LivingWhileBlack aggressions. This theory envisions multiple “touchstones”—legal, political, and cultural—that may inform our analysis of white supremacy. It asserts that lessons from sex discrimination law are one such analytical touchstone, while recognizing that a number of touchstones are necessary to fully unpack and address #LivingWhileBlack aggressions. Analyzing #LivingWhileBlack aggressions through the lens of sex discrimination law may yield two positive results. First, looking at the problem with a new perspective may lead to different, additional, or more comprehensive strategies for disrupting and dismantling white supremacy. Second, utilizing a sex discrimination frame to consider #LivingWhileBlack aggressions holds the potential to make legible to white women, in particular, the connection between their own oppression and the oppression of Black people, and thus create the opportunity for coalition building
The Economics of Class Action Waivers
No full textMany firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the U.S. Supreme Court has endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it is not. We examine conditions in which class action waivers can compromise product safety, facilitate anticompetitive conduct, and support harmful employment practices. Our analysis delivers a more nuanced, policy-based critique of the recent U.S. Supreme Court cases, highlights several new unresolved issues, and identifies future challenges for legal scholarship to address
Horizontal Shareholding and Network Theory
No full textThis paper uses network theory to argue that the consequences of horizontal ownership by large investment institutions are more complicated than, and sometimes the complete opposite of, what conventional economic theory predicts. Horizontal ownership occurs when a large investment institution, such as Vanguard or BlackRock, simultaneously holds large stakes in many different companies in the same industry. Legal scholars and economists have argued that these large investors have little incentive to encourage competition in the industries in which they have horizontal ownership because the investors are just as likely to hold shares in companies that might lose from competition as they are to hold shares in companies that might gain. Against this background, this paper advances two claims. First, it shows that the policy proposals that have been advanced to address the alleged anticompetitive effects of horizontal shareholding could backfire and further reduce the level of competition in the affected markets. Second, it highlights that the consequences of horizontal shareholding are nuanced because things that happen in one industry inevitably affect other industries. For instance, increased ticket prices among airlines might be good for airlines but bad for their suppliers. Therefore, determining whether reduced competition in a given industry would benefit an investor requires us to compare the gains it would generate in the relevant market with the losses it would impose on other firms in the investor’s portfolio
A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s
No full textThe Supreme Court is poised to toughen the nondelegation doctrine to strike down acts of Congress that give broad discretion to administrators, signaling a potential revolution in the separation of powers. A majority of the Justices have suggested in recent opinions that they are open to the far-reaching theory that all agency rulemaking is unconstitutional insofar as it coerces private parties and is not about foreign affairs. If adopted, this theory would invalidate most of the federal regulatory state. Jurists and scholars critical of rulemaking's constitutionality base their claims on the original meaning of the Constitution. But these critics face a serious obstacle: early Congresses enacted several broad delegations of administrative rulemaking authority. The critics' main response has been that these early statutes do not count, because they fall into two areas in which (say the critics) the original nondelegation doctrine did not apply, or applied only weakly: noncoercive legislation (e.g., giving benefits) or foreign-affairs legislation.
This Article finds that the originalist critics of rulemaking are mistaken to say that no early congressional grant of rulemaking power was coercive and domestic. There is a major counterexample missed by the literature on nondelegation, indeed by all of legal scholarship, and not discussed more than briefly even by historians: the rulemaking power under the "direct tax" of
1798. In that legislation, Congress apportioned a federal tax quota to the people of each state, to be paid predominantly by owners of real estate in proportion to their properties' respective values. Thousands of federal assessors assigned taxable values to literally every house and farm in every state of the Union, deciding what each was "worth in money" - a standard that the legislation did not define. Because assessors in different parts of a state could differ greatly in how they did valuation, Congress established within each state a federal board of tax commissioners with the power to divide the state into districts and to raise or lower the assessors' valuations of all real estate in any district by any proportion "as shall appear to be just and equitable" - a phrase undefined in the statute and not a term of art. The federal boards' power to revise valuations en masse in each intrastate tax district is identical to the fact pattern in the leading Supreme Court precedent defining rulemaking. Thus, each federal board in 1798 controlled, by rule, the distribution of the federal real-estate tax burden within the state it covered.
This Article is the first study of the federal boards' mass-revision power. It establishes that the mass revisions (a) were often aggressive, as when the federal board in Maryland raised the taxable value of all houses in Baltimore, then the nation's third-largest city, by ioo percent; (b) involved much discretion, given serious data limitations and the absence of any consensus method;
(c) had a major political aspect, as the federal boards were inheriting the contentious landtax politics that had previously raged within the state legislatures, pitting the typical state's rich commercial coast against its poor inland farms; (d) were not subject to judicial review; and (e) were accepted as constitutional by the Federalist majority and Jeffersonian opposition in 1798 and also by the Jeffersonians when they later took over, indicating the boards' power was consistent with original meaning or, alternatively, with the Constitution's liquidated meaning. In short, vesting administrators with discretionary power to make politically charged rules domestically affecting private rights was not alien to the first generation of lawmakers who put the Constitution
into practice.
More broadly, this Article is the first in-depth treatment of the 1798 direct tax's administration. It shows that the tax, measured by personnel, was the largest federal administrative endeavor, outside the military, of the Constitution's first two decades. It is remarkable that today's passionate debate on whether the administrative regulatory state violates the Framers' Constitution
has so far made no reckoning with this endeavor.
This Article's dataset is available at: https://doi.org/1o. 791o/DVN/IGMJ 7E