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Abolition Economics
Get PDFOver the past several decades, Law & Economics has established itself as one of the most well-known branches of interdisciplinary legal scholarship. The tools of L&E have been applied to a wide range of legal issues and have even been brought to bear on Critical Race Theory in an attempt to address some of CRT’s perceived shortcomings. This Article seeks to reverse this dynamic of influence by applying CRT and related critical perspectives to the field of economics. We call our approach Abolition Economics. By embracing the abolitionist ethos of “dismantle, change, and build,” we seek to break strict disciplinary habits of modelling and identification, destabilize value systems implicit in mainstream economics, model society more fully as made up of interconnected humans, and develop a richer and more realistic understanding of racialized economic inequality, hierarchy, and oppression. We argue that, contrary to accepted disciplinary conventions, such an endeavor does not introduce new (inappropriate) ideological content into (objective) economics; rather, this endeavor is necessary to fully reveal the ideological content already embedded in mainstream economics as it is currently practiced, and the consequences of that embedding in supporting the functioning of systems of racial capitalism and racial injustice. We believe that imagining the possibility of a different economics—an Abolition Economics—can be an act not only of resistance but, crucially, of freedom-making
Duties Owed to the Public
No full textHow does private law conceptualize duties owed to the public-at-large? Are they owed to individual members of the public? This question is interstitial in two ways—it concerns both the space between public law and private law and the spaces between different fields of private law. Different areas of private law handle it in contradictory ways. Duties of public officials are regarded as owed to individual citizens for the purposes of contract law’s preexisting duty rule but as not owed to individuals as a matter of tort law’s public duty rule. Violations of public property might be enforceable through public nuisance, but violations of analogous public contracts might not be enforceable by citizens. After describing the problem, this chapter surveys possible answers. Ultimately, the chapter suggests that a distinction between exercise of control and ex post injury might best explain the variable treatment of public duties in private law
Preface to Legal Comm. & Rhetoric: JALWD
Get PDFWelcome to Volume 21 of Legal Communication & Rhetoric: JALWD! This volume takes readers on a journey to uncover, dig past the surface, and unravel hidden narratives within the realm of legal reasoning and storytelling. In the preface to Volume 20, we acknowledged ChatGPT’s contribution to drafting the preface as well as published the journal’s first ChatGPT essay, from former editor-in-chief Ian Gallacher. Fast-forward to one year later and Generative AI has become much more than an interesting and amusing distraction. In Ethan Mollick’s bestselling book, Co-Intelligence: Living and Working with AI, he offers “Principle 1: Always invite AI to the table.”1 (You can read more about Professor Mollick’s book in Katrina Robinson’s book review in this volume.
Scrutiny of Employee Covenants Not to Compete Under the Rule of Reason: An Empirical Inquiry
Get PDFFor over 300 years, the common law has scrutinized employee covenants not to compete for their reasonableness. That is about to change. On April 23, 2024, the Federal Trade Commission announced a rule that will prohibit employers from imposing noncompete agreements on workers. The rule declares all covenants not to compete in the employment context to be unfair methods of competition under section 5 of the FTC Act. If the rule takes effect, thirty million contracts will become illegal. The FTC justifies this rule based on the ostensibly pernicious effects of employee covenants not to compete—limiting employee opportunities to pursue new job opportunities, inhibiting growing companies from hiring new employees, reducing employee wages, and depriving consumers of the benefits of labor market competition. Critics of the rule dispute these empirical claims, argue that a flat prohibition on employee noncompetes would wipe away many efficient agreements, and contend that the FTC lacks authority to enact such a rule. They also contend that antitrust’s rule of per se illegality is typically reserved for restraints that almost invariably harm competition and lack redeeming virtues, and that covenants not to compete do not have that profile.
Buried in the controversy over the FTC’s noncompete rule is the question of how employee covenants not to compete (ECNCs) are currently treated in state courts. The FTC notes that three states—California, North Dakota, and Oklahoma—categorically prohibit ECNCs for most or all employees, and that some of the remaining forty-seven states restrict their enforcement in some circumstances (i.e., based on a worker’s earnings, for certain occupations, or when the employee is not given adequate notice). Outside of those statutory restrictions, the forty-seven states adjudge ECNCs under the common law’s longstanding rule of reason, which asks if the restraint is greater than necessary to protect the employer’s legitimate interests or if those interests are outweighed by the harm to the employee or the public interest. The Commission notes that there is some variation among the states in how their courts apply the rule of reason, for example, how narrowly or broadly they define an employer’s legitimate interests. The Commission also invokes studies that seek to assess variations among states in the enforceability of ECNCs in order to measure the effects of ECNCs on wages.
But how do these rule-of-reason decisions actually come out? Do most courts uphold the ECNCs, or strike them down? And, to the extent they uphold them, what reasons do they offer for doing so? These questions bear importantly on the justifications for a federal rule categorically banning ECNCs and displacing the historic common law approach. If courts are rubber-stamping ECNCs, then perhaps the rule of reason is little more than a euphemism for approval and federal action is needed to protect employee rights and the public interest in competition. Similarly, if courts are almost always invalidating ECNCs, then that could show that their ostensible justifications are pretextual and that a federal ban will save litigation costs and remove all doubt. On the other hand, if the outcome is more mixed with courts invalidating ECNCs with weak justifications but upholding others where the employer demonstrates reasonableness, that could suggest that there is already effective policing of ECNCs under the common law and that the rule will ban some ECNCs with legitimate efficiency justifications.
This Essay provides some empirical findings bearing on these questions. Based on a hand-coded dataset of 514 state court decisions scrutinizing ECNCs under the rule of reason in the last twenty-five years, I can report the following: state courts have struck down 53%, have pared down 7%, and have upheld 40% of ECNCs after analyzing them substantively for their reasonableness. This suggests that state common law already provides significant protection against overreaching ECNCs, but that, when considered individually, there may be legitimate efficiency justifications for some subset of the ECNCs that will be banned by the rule. To be sure, these findings do not necessarily mean that a total ban on ECNCs is unjustified. The courts may be wrong in justifying the ECNCs that they do, ECNCs may have an in terrorem effect even when a court would not uphold them, or the costs of individualized litigation may exceed the benefits. Nonetheless, the actual practice of the common law courts merits consideration in the litigation over the rule’s enforceability that inevitably broke out when the rule became final
Crystalizing Community: “Communities of Interest” and the 2020 Michigan Independent Citizens Redistricting Commission
Get PDFThe Michigan Independent Citizens Redistricting Commission (MICRC) met for the first time in 2020 after it was created via ballot initiative in 2018. The MICRC included thirteen Michiganders tasked with drawing state house, senate, and congressional districts. The newly amended Michigan Constitution charged the MICRC with incorporating a new criterion previously unknown to Michigan redistricting: communities of interest. Communities of interest (COIs) have played a role in redistricting law across several states, gaining prominence after the Supreme Court’s landmark decision in Shaw v. Reno as an ostensibly race-neutral “traditional districting principle.” However, the concept is difficult to define. This Note is the first to study the MICRC’s attempt to codify the cultural, historical, and economic interests of communities across Michigan, as defined by Michiganders themselves. Although the MICRC worked tirelessly to review the flood of public comments, it will need to modify its approach for the next redistricting cycle. We propose several substantive and procedural changes to improve the COI review process, including firming up a thematic, “bottom-up” approach, strengthening public outreach efforts, and modernizing the comment database
SSRN New Submission Process for Michigan Law Research Paper Series (RPS)
Get PDFThis video recaps information shared in June 2024 information sessions. The information is current as of July 2024.
This 22 min video is intended for current Michigan Law Faculty who will be uploading papers on SSRN and would like to include their papers in one, or both, of the Michigan Law Research Paper Series – Public Law and Legal Theory or Law and Economics.
Slides from the information session are attached, but do not include the demonstration portion of the video.
Sarah Woloschuk, Scholarly Publishing Librarian, is the contact for any questions and for assistance, including access to our specialized submission links.https://repository.law.umich.edu/presentations/1001/thumbnail.jp
Orders Without Law
Get PDFA review of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. By Stephen Vladeck
Beyond Profit Motives
Get PDFA review of The Profit Motive: Defending Shareholder Value Maximization By Stephen M. Bainbridge
Original Public Meaning and Pregnancy’s Ambiguities
Get PDFRelying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Organization that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.
This Article refutes these arguments on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common, expected, and impossible to distinguish from abortion.
Women and their doctors lived these ambiguities. Nothing in the laws in 1868 changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence