We have a semester’s worth of JOTWELL’s to report on. Two of the five are about articles on which we have already posted.
Back in September, Dean Eboni Nelson posted on Duncan Kennedy’s The Bitter Ironies of Williams v. Walker-Thomas Furniture Co. in the First Year Law School Curriculum, 71 Buff. Law Rev. 225 (2023). Our post on the subject is here. As Dean Nelson notes, Professor Kennedy has a twofold goal in the article. First, he pushes back against critiques of Williams that claims that the cause lawyering that gives rise to such cases actually ends up hurting precisely the groups that the attorneys were trying to help. Second, the article is just one part of Professor Kennedy’s broader defense of progressive initiatives to protect Black neighborhoods that exist at the intersection of poverty and racism. Neoliberal scholars have attacked decisions like Williams as counterproductive and paternalist. Like Shawn Bayern’s book, reviewed here recently, Professor Kennedy pushes back against law and economics critiques of Williams using the tools of law and economics. The fact of the matter is, litigation designed to help poor communities succeeded in expanding the availability of credit to those communities without raising the cost of such credit. That is not a surprising result when one considers the realities of that credit market.
In October, Professor Robert Hillman published his review of Yehonatan Givati, Yotam Kaplan, and Yair Listokin, Excuse 2.0, A Macroeconomic Model of Contract Excuse, __ Cornell L. Rev ___ (forthcoming), available at SSRN (June 1, 2023). Often, when we subject common law doctrines to economic analysis, we discover the common law has meandered its way to something very close to the 
ideal solution. So it is with excuse doctrine, notwithstanding its vagueness. Professor Hillman notes the Authors’ theme that “in systematic risk situations,” such as pandemics or wars, “ambiguous excuse law promotes compromise and loss sharing that lessens economic havoc in the long-term, such as bankruptcies.” Uncertainty in the law promotes compromise and settlement, which is appropriate during systemic risk situations, where no party could bear the costs they might face if the excuse doctrine resulted in clear winners and losers. In such circumstances, there is no party best positioned to avoid the loss. In fact, the humble common law, with all its vagueness ends up allocating risk in a more targeted way than does legislative intervention, which tends to be reactive and leads to inflation. While Professor Hillman congratulates the Authors on their counterintuitive thesis (ambiguity in excuse doctrine is good!), he notes that the evidence in support of the thesis is a bit thin. Moreover, Professor Hillman wonders whether excuse doctrine is unique in its vagueness. Perhaps the Authors will follow up with their global defense of common law doctrine Where Ambiguity Justly Reigns. Notwithstanding some quibbles, Professor Hillman concludes that the Authors’ article is well worth reading and that its thesis is worth pondering.
November’s contribution to JOTWELL was Omri Ben-Shahar‘s review of David A. Hoffman and Yonathan A. Arbel, Generative Interpretation, 99 N.Y.U L. Rev. __ (forthcoming, 2024); U of Penn L. Sch., Pub. L. Rsch. Paper, available at SSRN (Aug. 1, 2023), an article that we reviewed here. Professor Ben-Shahar situates Generative Interpretation in the scholarly literature. Ever since the contextualist revolution, legal scholars have deplored or ignored the “plain meaning” approach to contractual interpretation. Few scholars wrote on the plain meaning approach to interpretation in the commercial context before the advent of corpus linguistics, and still there has not been much. Now, Hoffman and Arbel take us a step beyond corpus linguistics, deploying large language models (LLMs) to resolve ordinary interpretive disputes. Hoffman and Arbel show that LLMs can sometimes intervene usefully to establish the likely meaning of seemingly ambiguous texts or to establish ambiguity where courts have found clarity. Professor Ben-Shahar asks where we go from here. Will lawyers use LLMs to make sure that their contractual language is airtight? Will clever lawyers bring out dueling LLM models to support their interpretive claims? Will judges get on board?
I admit that I struggled with these next two through no fault of the authors. Readers are encouraged to go straight the source, as I am not sure I did justice to their content.
December’s review was Lauren Scholz‘s post on Cary Coglianese & Erik Lampmann, Contracting for Algorithmic Accountability, 6 Admin. L. Rev. Accord 175 (2021). State and federal agencies and the private sector use artificial intelligence (AI) to assist in their decision-making processes. But how do we check to make sure that the AI algorithms are fair? Government agencies do not have the expertise to design AI systems on their own. They contract with private entities to develop the AI, but then there has to be some system for assuring that the AI tools reflect the values of the government agencies. Coglianese and Lampmann propose guidelines for public procurement of AI systems. The contracts should require “substantive privacy and security standards, mandatory audit processes, and transparency safeguards” in order to ensure the availability of public scrutiny and to guard against claims of trade secrets that might be used to avoid such scrutiny. How does such a process proceed. Likely through trial and error. The public procurement process can become a laboratory in which to develop rules for promoting algorithmic accountability. It is appropriate to allocate public dollars to the project of shaping rules for AI accountability and to subsidize the process of shaping the way AI is used for the public good.
Finally, just last week, Aditi Bagchi posted her review of Abbye Atkinson, Borrowing and Belonging, 111 Cal. L. Rev. 1369 (2023). Professor Atkinson’s article seeks to restore dignity to the process of personal bankruptcy. Our culture treats consumption as a fundamental feature of social belonging, and yet bankruptcy rules that mandate disclosure and restrict access to future credit ostracize the debtor from the consumption-based community. Given that one must consume in order to participate in society, the conduct that led debtors into bankruptcy is both rational and reasonable, and yet the bankruptcy process is punitive. It mandates disclosure of the debtor’s financial situation and treats certain categories of debt as non-dischargeable. These policies undercut the consumptive aspirations of debtors, depriving them of aspirational agency while also undercutting our broader goal of encouraging consumption as part of our communal ethos. Professor Bagchi suggests that a less punitive bankruptcy regime might have the macro effect of increasing the costs of consumer goods, especially those typically bought on credit. Such an outcome might be fine within the normative framework of Professor Atkinson’s work. It might just result in a general reduction in consumption without prejudice to any particular group’s ability to participate. However, Professor Bagchi also imagines that a more localized increase in prices, especially for consumer credit, affecting precisely the group that Professor Atkinson hopes to protect. If such a localized rise in prices occurs, it would undercut Professor Atkinson’s goal of allowing debtors full participation in consumer markets.
