Jotwell 2016 Summer Break

Jotwell is taking a short summer break. Posting will resume on Tuesday, September 5. However, even while we’re on break, we’ll be accepting submissions, editing them, and preparing a new section that we plan to be launching very soon. We’ll also be doing our first major code refresh since we founded the site in 2009. It’s possible that this updating may cause brief periods of down time during our break, so please bear with us.

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See you in two weeks, when we start the new academic year.

 
 

When Physical Harm Is Threatened but Not Realized: Who Should Pay?

Donal Nolan, Preventive Damages, 132 Law Q. Rev. 68 (2016), available by subscription at Westlaw.

The recent Restatement Third of Torts divides U.S. tort law into separate categories of harm. Liability for physical injury is governed, on the one hand, by the Restatement Third of Torts: Liability for Physical and Emotional Harm. Liability for economic loss, on the other hand, is governed by the Restatement Third of Torts: Liability for Economic Harm. In the case of physical harm, default rules permit generous liability and recovery. In the case of economic losses, liability is quite limited. So it is no surprise that issues arise at the border of these two subjects. Specifically, what happens when the defendant’s conduct creates not actual physical harm, but a risk of physical harm that occasions the need for the plaintiff to incur economic expenses that will prevent it? Should the more liberal rules of physical harm recovery apply because the defendant’s conduct created a risk of physical harm? Or should the more restrictive rules of economic loss recovery apply because the actual damage is, after all, purely economic?

In his recent article, Preventive Damages, Professor Donal Nolan of Oxford University confronts this thorny issue, which, as he notes, “has been the subject of surprisingly little analysis by common law scholars.” Professor Nolan begins his article with the general principle of preventative damage recovery outlined in the Principles of European Tort Law. Specifically, Article 2.104 provides that “Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.” This general principle apparently captures the preventative damage rules of a number of civil jurisdictions, including Germany and France. But Nolan suggests that “most common lawyers would struggle to answer” whether this principle represents the law in their jurisdictions. The cases Nolan highlights seem to warrant that legal uncertainty as they pull in both directions. Continue reading "When Physical Harm Is Threatened but Not Realized: Who Should Pay?"

 
 

Understanding Unconstitutional Amendments: Reflections on Comparative Constitutional Doctrine and Method

Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015).

Rosalind Dixon and David Landau’s Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment contributes significantly to at least two fields of legal scholarship: the writing on unconstitutional amendments and the literature on comparative constitutional law. In what follows, I will highlight how this most impressive text contributes to each of these fields.

Consider first the article’s contribution to the writing on the doctrine of unconstitutional amendments. As the authors’ exhaustive citations reveal, scholars have long examined how courts should determine whether “some constitutional amendments are substantively unconstitutional because they undermine core principles in the existing constitutional order.” (P. 608.) Dixon and Landau state with striking clarity the stakes that underlie this debate. They note that the doctrine creates a slippery slope problem: judicial oversight can create a brake on attempts to enshrine in a constitution measures that unambiguously undermine its democratic legitimacy, yet there is a risk that courts will extend the doctrine to cases in which there is only reasonable disagreement about a particular interpretation of the constitution and therefore no serious threat to the polity’s democratic order. When a court overreaches in this way, the authors note, it frustrates the political branches’ ability to pursue a constitutionally recognized avenue for resolving a reasonable disagreement with the judiciary. Dixon and Landau describe the consequences of such judicial overreaching: “Giving courts unfettered power to invalidate amendments for incompatibility with their own prior preferred reading of the constitution will create a clear democratic danger or cost.” (Id.) Continue reading "Understanding Unconstitutional Amendments: Reflections on Comparative Constitutional Doctrine and Method"

 
 

How and Why Representation Matters

Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (forthcoming 2016), available at SSRN.

The sociologist Rebecca Sandefur estimates that a staggering one in three members of the population experiences a civil justice problem every year. Recent reports consistently pronounce that a glut of newly minted lawyers is crowding an oversaturated market. Yet low- and moderate-income Americans are far more likely than not to attempt to protect important rights to housing, custody, financial security, and physical safety without the benefit of attorney assistance. A conservative estimate puts the number of unrepresented parties in the civil justice system at twelve or thirteen million. Gillian Hadfield and James Heine suggest that the inaccessibility of legal services leads nearly forty percent of Americans to “lump” their civil justice problems, or do nothing to solve them.

In light of these distressing statistics, two hot topics in access to justice have emerged in recent years. In one camp are those who promote the need for a right to counsel—a “civil Gideon”—in a broader range of civil cases. In a second camp are those who propose innovative models for the distribution of scarce attorney resources, including the delivery of “unbundled,” or brief, services in lieu of full representation, as well as the licensing of non-attorneys to handle routine legal matters.

One complication in evaluating the various proposals to increase access to legal services is that we lack the robust empirical data necessary to determine whether, and in what forms, attorney representation makes a difference. And that is where Colleen Shanahan, Anna Carpenter, and Alyx Mark’s outstanding article comes in. Continue reading "How and Why Representation Matters"

 
 

The Unintended Consequences of Putting Family Off-Limits in Job Searches

Joni Hersch & Jennifer Bennett Shinall, Something to Talk About: Information Exchange Under Employment Law, 165 U. Pa. L. Rev. (forthcoming 2017), available at SSRN.

Being finicky by nature, I sometimes take issue with those who claim that certain questions in the interview process are illegal. While that’s true for questions about disability under the ADA and genetic information under GINA, I’ve long resisted the conventional wisdom that asking a female applicant about her marital status or her plans for having children is illegal. I agree that, even putting aside all sorts of other reasons why raising such personal topics may not be a good idea, there are legal risks in such inquiries. But at most it would be illegal to ask only women the questions, and even that is incorrect. A violation of Title VII requires an adverse employment action, and such questions by themselves don’t count.

At this point I can hear a chorus of voices objecting that, while that’s technically true, such questions hand a rejected applicant a case on a silver platter: they indicate that the employer thinks gender is relevant to the hiring decision, and the failure to hire is the adverse employment action. Plus, given Title VII’s motivating factor liability, an employer might find itself in violation of the law even if it would have made the same decision in any event. So it’s risky to start down this road from a legal perspective and, given societal norms, it seems a bad idea from any number of other perspectives – although there are those who see such questions as valuable for employers in a variety of ways, such as signaling family-friendliness or allowing the employer to tout the advantages of its environment, such as good schools.

All of which is why Joni Hersch and Jennifer Bennett Shinall’s recent posting on SSRN, forthcoming in the University of Pennsylvania Law Review, is so interesting. Something to Talk About: Information Exchange Under Employment Law explores the phenomenon of “little or no information about family status being provided in pre-employment interviews,” reaching the counterintuitive conclusion that the result is reduced opportunities for women. Continue reading "The Unintended Consequences of Putting Family Off-Limits in Job Searches"

 
 

Testamentary Freedom and the Implied Right to Inherit

Adam J. Hirsch, Airbrushed Heirs: The Problem of Children Omitted from Wills, 50 Real Property, Trust and Estate L.J. 175 (2015), available at SSRN.

One of the most frustrating aspects of the practice of estate planning and probate law is dealing with outdated plans. Specifically, when a testator has a change in circumstances and does not update his will or trust, we are left to speculate what the testator would have wanted.

Many jurisdictions provide statutory protections for children who were born or adopted by the testator after the will was created based on the presumption that these children were unintentionally disinherited. Professor Hirsch challenges this presumption by exploring the policy and the shortcomings of the various pretermission (“unintentional omission”) rules. He focuses on two policy perspectives: the concern that testators pretermitted children because of forgetfulness, and the concern that testators failed to update their wills to account for changed circumstances. He raises questions about whether a testator’s unambiguous plan should be disrupted and how long a will should remain obsolescent (i.e., may no longer reflect the desires of the testator), after a change in circumstance. Continue reading "Testamentary Freedom and the Implied Right to Inherit"

 
 

Thinking in More Nuanced Ways About Wealth and Income Inequality

In his book Capital in the Twenty-First Century, Thomas Piketty did us the great service of bringing the problems of wealth and income inequality to the fore. In the process, however, he also may have performed a bit of a disservice – making those problems seem simple, a mere function of the inequality r > g, where r is the rate of return to capital and g is the rate of economic growth. The solution, he suggested, was equally simple: a tax on wealth.

Bariş Kaymak and Markus Poschke, in The Evolution of Wealth Inequality over Half a Century: The Role of Taxes, Transfers and Technology, offer a more complex picture. They construct a general equilibrium model of the U.S. economy over the past half-century, incorporating (1) reduced income taxes on top earners (from a 45% effective rate for the top 1% in 1960 to a 33% effective rate in 2004, and from a 71% effective rate for the top 0.1% in 1960 to a 34% effective rate in 2004), (2) expansion of government transfers from 4.1% to 11.9% of GDP over the same period, and (3) higher pre-tax wage inequalities, which they attribute to technological change. (For these purposes, effective rate is defined as income taxes paid as a percentage of taxable income.) The question they ask and attempt to answer is: To what extent were the observed increases in wealth and income inequality over that period attributable to each of these changes or trends? Continue reading "Thinking in More Nuanced Ways About Wealth and Income Inequality"

 
 

The Challenge of Eminent Domain

Yxta Maya Murray, Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in the Motor City, 23 Geo. J. on Poverty L. & Pol’y 395 (2016), available at SSRN.

One usually thinks of law review articles as detached, dry, formal, and arcane. This is particularly true of those dealing with property. Even if articles are billed as an “interdisciplinary” effort, this generally means the occasional introduction of similarly detached and desiccated material from other fields.

The article Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in the Motor City, by Yxta Maya Murray, shatters that mold. In this work, Murray – a legal scholar and the author of six novels – writes of the infinitely complex layers of law, politics, psychological bias, and human need that eminent domain involves in a way that it has not been done before. Continue reading "The Challenge of Eminent Domain"

 
 

Where Are the Lawyers?

Ta-Nehisi Coates, Between the World and Me (2015).

A lawyer, states the American Bar Association Model Rules of Professional Conduct, is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Preamble ¶ 1 (2016). Yet in contrast with the many rules that define the role of lawyers as representatives of clients and the handful of rules that deal with lawyers as officers of the legal system, the rules have little to say about the role of lawyers as public citizens. Only one comment is directly on point, explaining that “[a]s a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” Id. ¶ 6. What the special responsibility lawyers have for the quality of justice is and how they are to go about improving the administration of justice are questions mostly left unaddressed by the rules.

Scholars of the legal profession have long complained about this significant omission, and their call for infusing the role of lawyers as public citizens with actual content, has been answered by a public intellectual, Ta-Nehisi Coates, in his book Between the World and Me, which any lawyer interested in improving the quality of justice in the United States must read. That Mr. Coates should provide a foundation for a much needed discussion about the role of lawyers as public citizens is surprising, both because the author is not a lawyer, and because the book does not mention lawyers even once. Nonetheless, Between the World and Me is nothing short of a compelling call for arms, a wake-up call for members of the legal profession. Continue reading "Where Are the Lawyers?"

 
 

Reclaiming Lone Wolf?

Review of Michalyn Steele, Plenary Power, Political Questions, and Sovereignty in Indian Tribes, 63 UCLA L. Rev. 666 (2016).

In the concentration camps of the Holocaust, a pink triangle marked gay men’s uniforms to indicate why they had been singled out for imprisonment and death. Beginning in the 1970s, LGBT activists reclaimed the pink triangle, transforming it into a symbol of pride and a demand for respect. Like the Nazi use of the pink triangle, the US Supreme Court’s 1903 decision in Lone Wolf v. Hitchcock represents some of the worst oppression of tribal nations in the United States. Rejecting a challenge to involuntary allotment of tribal lands, Lone Wolf declared that the United States had “plenary power” over Indian tribes, and this power was a “political one, not subject to be controlled by the judicial department of the government.” The case was immediately decried as the Dred Scott for Indians, but unlike Dred Scott, much of Lone Wolf remains good law.

In her provocative new paper, Plenary Power, Political Questions, and Sovereignty in Indian Tribes, Michalyn Steele argues for a partial reclaiming of the plenary power and political question doctrines announced in Lone Wolf and other cases. As Steele notes, the doctrines have been “roundly, and rightly” criticized as leaving tribes “vulnerable to unchecked political whim.” In the limited form Steele proposes, however, the doctrines may be a useful check to what she calls the “heads I win, tails you lose” bind tribes face in the courts today. Continue reading "Reclaiming Lone Wolf?"

 
 

The Lost Promise of Title VII

Katherine Turk’s elegantly written, deftly argued study of Title VII’s first half-century spotlights working-class women’s distinctive legal activism, deepening our understanding of the promise and limitations of American antidiscrimination law in an era of increasing income and wealth inequality. Using fine-grained case studies as emblematic of larger themes, Turk takes us deep into ground-level campaigns and controversies in a diverse array of workplaces, organizations, and government agencies, from the New York Times and the National Organization for Women (NOW) to municipal employees’ unions to hospitals and hotels where women and men struggled for better and fairer conditions for all workers. Working women built cross-class and interracial coalitions with labor and feminist organizations to fight for pay equity, comparable worth, higher safety standards and workplace protections, paid family and medical leave, occupational mobility, and accommodation of family responsibilities.

Equality on Trial documents how the expansive visions of workplace justice that animated workers and their advocates collided with formidable obstacles: class divisions among women, gender divides among workers, declines in union density and power, conservative counter-mobilizations against civil rights enforcement, and a neoliberal politics that elevated individual opportunity over structural reform. The result is a class-stratified world of gender and work, in which privileged women enjoy the limited benefits of formal equal treatment while their working-class counterparts languish in low-wage, contingent jobs where sex equality means the right to be treated as poorly as men. Elite women gained access to white-collar male-dominated occupations, but failed to unsettle the expectation that the ideal worker outsource all reproductive labor to unpaid spouses or underpaid domestic help. Working-class women, Turk contends, benefited little from the paltry concessions feminists won in the late twentieth century: stingy, unpaid family leave for which many low-income women are ineligible and few can afford to take; desexualized but hardly de-gendered working environments; equal pay for equal (but not comparable) work; freedom from pregnancy discrimination without an entitlement to accommodation; the right to work under the same dangerous and soul-crushing conditions as men. Continue reading "The Lost Promise of Title VII"