Moving Beyond the Pregnant/Non-Pregnant Dichotomy in Pregnancy Discrimination Law Based on the Lived Experiences of New Mothers

Saru M. Matambanadzo, The Fourth Trimester, 48 U. Mich. J.L. Reform 117 (2014).

In The Fourth Trimester, Saru Matambanadzo braids personal narratives of her own pregnancy and birthing experience with legal analysis and with concepts and research from nursing and midwifery to craft a rich and courageous critique of current employment law’s application to pregnant women and new mothers. Matambanadzo’s thesis is that the law erroneously treats pregnancy as a discrete nine-month timeframe when in fact the physical and emotional effects of pregnancy linger, extending “into the first three months after delivery, and sometimes beyond.” (P. 124). She also addresses the shortcomings of laws that protect against pregnancy discrimination more generally. The Fourth Trimester concretely illuminates the ways in which the limitations of the current framework of federal law disadvantage workers who become pregnant and give birth by, for example, failing to adequately support breastfeeding and to provide the time needed after birth for the mother-infant dyad to become less interdependent.

Matambanadzo’s compelling arguments add a new dimension to legal scholarship on pregnancy in that they challenge not only the treatment of pregnant workers but also the firmly ingrained notion of pregnancy itself. Indeed the dichotomy between pregnant and not pregnant is paradigmatic in American culture—so much so that it exemplifies other black and white dichotomies, as illustrated by the expression that one cannot be “almost pregnant.” Matambanadzo successfully convinces the reader to rethink the notion of pregnancy itself. Continue reading "Moving Beyond the Pregnant/Non-Pregnant Dichotomy in Pregnancy Discrimination Law Based on the Lived Experiences of New Mothers"

 
 

Democracy as a Cause of and a Solution for Hyper-Incarceration

Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio St. J. Crim. L. 133 (2011).

One of the last articles written by the late Andrew Taslitz (known as Taz to his friends) was entitled The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration. The piece is quintessentially Tazian. It brings together Taz’s concern for racial minorities and criminal defendants, his belief in the reformist potency of democracy, and his fascination with social scientific findings (including research on “happiness”!), in a provocative effort to tackle the single biggest problem in our criminal justice system today: mass incarceration. His prescriptions in the article—in particular his assertion that “populist, deliberative democracy” can be a way of softening the harshness of American criminal justice—are worth taking seriously.

As Taz described it, populist, deliberative democracy (or PDD) is not regular old democracy. Rather, in the criminal justice context it involves all “social groups,” including convicted offenders, in deliberations that take place in multiple venues, with the expectation that “compromise rather than domination” will occur. He contrasts this type of democracy with “raw populism” that is not deliberative and that tends to be based on less information about competing interests. Although Taz did not think PDD would by itself result in less reliance on incarceration, he does marshal some strong evidence that it could move the country in that direction. Continue reading "Democracy as a Cause of and a Solution for Hyper-Incarceration"

 
 

Standing (in) for the Government

Seth Davis, Standing Doctrine’s State Action Problem, 91 Notre Dame L. Rev. __ (forthcoming 2015), available at SSRN.

Eugene Diamond, a pediatrician, took it upon himself to protect and uphold the constitutionality of Illinois’s Abortion Law of 1975, which, among other things, imposed criminal liability on doctors who performed certain abortions. Diamond himself was not affected by the law, as he did not perform abortions. Indeed, he wanted to prevent them.

In 1983, when the Northern District of Illinois enjoined enforcement of parts of the law as unconstitutional, the State of Illinois declined to defend the law any further, leaving only Diamond to defend the law on appeal. After losing the appeal, Diamond petitioned the Supreme Court to let him defend the constitutionality of the law, asserting his right to defend as “a doctor, a father, and a protector of the unborn.” But in Diamond v. Charles, the Supreme Court concluded that Diamond had no such right to defend, calling Diamond’s actions “simply an effort to compel the State to enact a code in accord with Diamond’s interests.”

In his excellent article, Standing Doctrine’s State Action Problem, Seth Davis addresses when a party such as Diamond can assert a state’s interest in a lawsuit under Article III of the Constitution, which limits lawsuits to “Cases” or “Controversies” between parties who meet requirements such as standing, ripeness and lack of mootness. The question of who can assert the state’s interests arose again recently in Hollingsworth v. Perry, which involved an amendment to the California Constitution, voted on by citizens of California directly through the state’s referendum system, banning same-sex marriage. As in Diamond, the proponents of the amendment sought to defend its constitutionality on appeal when the State of California declined to do so. The Supreme Court concluded that the proponents lacked standing. Relying upon principles of agency, the Court concluded that the proponents cannot stand in for the state because the state could not exercise control over the proponents’ actions. In dissent, Justice Kennedy noted the irony of insisting on state control of the proponents when the whole point of the California referendum system is to allow citizens to bypass state control of the legislative process and to propose laws directly to the people. Continue reading "Standing (in) for the Government"

 
 

Deterring Both Spur-of-the-Moment and Carefully Planned Corporate Crimes

Miriam H. Baer, Confronting the Two Faces of Corporate Fraud, 66 Fl. L. Rev. 87 (2014).

How many different law review articles cite work by Kahneman and Tversky, progenitors of law and behavioral economics? At least two thousand, two hundred and seventy-three (2,273).1 And this does not include articles like Professor Baer’s which do not cite Kahneman and Tversky, but cite law review articles which do. Law and behavioral economics is a law professor industry. And, why not? It doesn’t require math and who doesn’t like Brain Games?

How many different law review articles cite work by Oliver Williamson, progenitor of the new institutional economics? At least one thousand, two hundred and fifty-four (1,254).2 Although smaller, this also reflects an industry which incorporates ideas of agency cost or of just opportunism, which Baer says is, “according to Oliver Wiliamson’s famous definition, a form of self-interest seeking with guile” (P. 99.)

What is the overlap between these 3,527 articles? That is, how many articles cite both Kahneman and Tversky and Williamson? At most 82 (2.3%).3 Of course, one might also ask what percentage of the smaller number of Williamson-citing papers cite Kahneman and Tversky, yielding a larger but still small number (6.5%). By and large, these appear to be two different lines of scholarship; two different industries.

Miriam H. Baer argues that both lines need to be considered concurrently. Why? The methods and structures of organizational compliance need to deter both deviance originating in individual departures from rationality (the law and behavioral economics line) and individuals whose rationality departs from that of the organization as an entity (the new institutional economics line). To complicate matters, in ways Professor Baer doesn’t highlight, such deterrence also sometimes cut against each other. Call it “the lure of the taboo.” Creating a culture that enshrines non-opportunistic values creates psychological pressures to evade. Sociologists talk about the normality of deviance, but you can just think of the attractiveness of shrimp to those raised in an Orthodox Jewish culture. (And let’s agree to not discuss other taboos). Continue reading "Deterring Both Spur-of-the-Moment and Carefully Planned Corporate Crimes"

 
 

Secession, Then and Now

Alison L. LaCroix, Continuity in Secession: The Case of the Confederate Constitution (forthcoming), available at SSRN.

Secession has been back in the news of late. Hundreds of thousands of individuals across the country signed petitions seeking permission for their states to leave the United States after President Obama’s reelection; Governor Perry riffed on Texas’s departure from the Union “if Washington continues to thumb their nose at the American people”; and members of the Second Vermont Republic insist the Green Mountain State would be better off alone. Overseas, a bid for Scottish independence from the United Kingdom nearly prevailed last fall.

A curious feature of many contemporary secessionist movements is their claim to represent the real nation-state from which they seek to depart. The paradigmatic secession case involves a self-consciously distinct national group trying to throw off the yoke of the state encompassing it. But many of today’s movements instead embrace the nation-state they would leave behind, insisting they are truer to its founding principles than the current regime. Alison LaCroix’s provocative and illuminating essay, Continuity in Secession: The Case of the Confederate Constitution, not only sheds light on the most important secessionist movement in American history, but also offers new purchase on this feature of contemporary law and politics. Continue reading "Secession, Then and Now"

 
 

The Place of Permits in the Quiver of Administrative Action

Those of us who write in administrative law often get stuck in the ruts created by the categories set out in the Administrative Procedures Act—especially rulemaking, adjudication and judicial review. Therefore, it is refreshing and often path breaking when an article appears that delves into an important aspect of administrative action that cuts across those ruts rather than following them. That is all the more true when the article is as well executed as The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State by Eric Biber and J.B. Ruhl.

Nominally, The Permit Power Revisited is a response to a piece Richard Epstein wrote, almost twenty years ago, lambasting administrative permitting as a “racket” rife with agency abuse.1 But the article does not so much respond to that piece; rather it lays out what the permit power encompasses and how agencies use it to fill gaps that otherwise would exist in regulatory schemes. In doing so, The Permit Power Revisited categorizes permits along a continuum and demonstrates how judicious choice of permitting along that continuum can contribute to effective and responsive regulation. Continue reading "The Place of Permits in the Quiver of Administrative Action"

 
 

Reaching Outside the Box to Ensure Equal Opportunity

In “Beyond Title VII: Rethinking Race, Ex-offender Status, and Employment Discrimination in the Information Age,” Professor Kimani Paul-Emile sets forth a compelling analysis of the harm and prejudice engendered toward minority populations by employers’ use of criminal background inquiries. She then proposes a novel regulatory scheme whereby employers would evaluate job applicants for employment fitness prior to factoring in any type of criminal background.

Whether or not one ultimately comes down on the side of regulating employer criminal background inquiries and subsequent actions taken on the basis of those inquiries, there is undeniable appeal in at least considering this scheme, which Professor Paul-Emile calls the Health Law Framework. Her framework is interesting because it transcends the traditional realm of regulation in this area—Title VII and the Fair Credit Reporting Act (FCRA)—and borrows from the arena of health law, specifically the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), to forge a thoughtful, integrated proposed mechanism for regulating employer use of criminal background inquiries. Continue reading "Reaching Outside the Box to Ensure Equal Opportunity"

 
 

Law on the Books Meets Law in Action

David Horton, Wills Law on the Ground: Empirically Assessing Probate Reform, 62 UCLA L. Rev. (forthcoming, 2015), available at SSRN.

This article contains a fascinating study of a year in the life of a probate court in one California county. Professor Horton uses his data to examine the fit between existing wills doctrine (derived from the small number of disputed estates that become reported appellate decisions) and routinized probate administrations. In other words, how does wills law on the books compare to “Wills Law on the Ground”? Horton frames his analysis within the existing debate in the field between “formalists” (who favor strict compliance with wills act rules even if intent-defeating) and “functionalists” (who reject formalism for its own sake favoring an intent-serving-standards-based wills act). Most state lawmakers and judges sit squarely in the former category; whereas, the latter faction includes the brain trust behind the Restatement (Third) of Property: Wills (Restatement) and the Uniform Probate Code (UPC). Part I of Horton’s article aptly describes several areas in will execution (attestation, holographic wills, and harmless error) and will construction (ademption by extinction and antilapse) where the contrast between the two camps is most stark.

Part II describes Horton’s empirical methodology and reports the results. The study examined every probate administration in Alameda County, California (CA) from January 2008 to March 2009 relating to decedents dying in 2007.1 After discarding abandoned matters and those involving pour-over wills, the dataset consisted of 571 cases. Fifty-seven (57) percent of these decedents died with a will and 43 percent without. After providing descriptive statistics on testate versus intestate estates (cost, length, litigation, beneficiaries), Horton analyzes how the data informs the issues that drive a wedge between formalists and functionalists. Continue reading "Law on the Books Meets Law in Action"

 
 

Contractualism and Tort Law

John F. K. Oberdiek, “Structure and Justification in Contractualist Tort Theory,” in John Oberdiek (ed.), Philosophical Foundations of the Law of Torts (Oxford University Press, 2014).

In addition to serving as the editor of Philosophical Foundations of the Law of Torts (OUP 2014), John Oberdiek has provided his own contribution, an excellent and penetrating chapter entitled Structure and Justification in Contractualist Tort Theory. (Full disclosure: John Goldberg and I have a co-authored chapter in the volume.) In it, Oberdiek offers a careful, original, and important analysis that brings together tort theory and the moral and political theory of contractualism, especially as developed by today’s leading contractualist, Thomas M. (“Tim”) Scanlon.

Economic theories of tort law derive from a roughly utilitarian framework for thinking about normative questions and numerous corrective justice accounts derive from a broadly-speaking Kantian framework. If one felt stuck between economic accounts that were too reductive and corrective justice accounts that were too focused upon abstract Kantian rights, one might ask whether social contract theory has anything to offer tort theory. George Fletcher’s Fairness and Utility in Tort Theory answered “yes,” and famously contributed Rawlsian ideas to tort theory. As Oberdiek helpfully explains, Gregory Keating’s work over the past twenty years has developed strong Rawlsian themes in tort theory in a more extensive and defensible manner than Fletcher’s evocative but concededly underdeveloped article. In negligence, products liability, and the law of nuisance, for example, Keating has admirably constructed a tort theory based on Rawlsian themes of fairness and reciprocity.1 Continue reading "Contractualism and Tort Law"

 
 

Non-U.S. Acquirers: Clients for U.S. Targets’ “Locked-Out” Earnings?

Andrew Bird, Alexander Edwards, & Terry J. Shevlin, Does the U.S. System of Taxation on Multinationals Advantage Foreign Acquirers? (January 15, 2015), available at SSRN.

Did Burger King submit to acquisition by a Canadian donut chain for tax reasons? Or, at least, once Burger King and Tim Hortons decided to merge, did they choose to have a Canadian parent for tax reasons? A recent empirical study by Andrew Bird, Alexander Edwards and Terry Shevlin suggests that one tax factor—the existence of “locked out” offshore earnings—increases the likelihood that a non-U.S. acquirer will acquire a U.S. target. Bird, Edwards and Shevlin analyze thousands of merger transactions, without regard to whether the transactions might be labeled “inversions.” Their paper contributes to the considerable literature that tests the idea that accounting and tax disparities affect firm prices and transaction decisions.

Bird, Edwards and Shevlin examine several thousand public company firms with a parent corporation incorporated in the United States, for example under Delaware law. Each of the firms in the sample was acquired between 1995 and 2010. The paper considers the possibility that these target U.S. firms might have been acquired by U.S. or non-U.S. acquirers. Bird, Edwards and Shevlin find that when a U.S.-parented target corporation has more offshore “locked-out earnings,” the target firm is more likely to merge with a non-U.S. acquirer rather than a U.S. acquirer. Continue reading "Non-U.S. Acquirers: Clients for U.S. Targets’ “Locked-Out” Earnings?"

 
 

Addressing the Health Care/Public Health Dichotomy through Justice

Lindsay F. Wiley, Health Law as Social Justice, 24 Cornell J.L. & Pub. Pol’y 47 (2014), available at SSRN.

A longstanding and confounding divide exists between treatment of the individual and care for the collective. While the former is deemed health care, the latter is called public health, and American medicine has long maintained this dichotomy (a story that Paul Starr told decisively in The Social Transformation of American Medicine). This divide exists not only in the medical establishment but also in the law pertaining to it. While the field called health law tends toward being subject matter inclusive, it paradoxically has excluded public health law as a separate discipline. In part, this dichotomy may result from public health’s focus on the whole community rather than individual relationships, rights, and treatments. But also, this divide is strengthened by the historic primacy of private law rather than public law in health care, a hierarchy that has reinforced bias toward protecting medical stakeholders’ rights in their professional space. In addition, the law has sidestepped race, gender, economic, and other disparities in health care, allowing inequalities to fester. Though health care reform took on some of these issues, health disparities are a persistent problem. Fortunately, Professor Wiley is battling these old lines with her new work.

Health Law as Social Justice makes a convincing case that health law includes more than health care finance, bioethics, and regulation of related entities and markets. Instead, Wiley argues, health law and public health must be intertwined to effectively battle health disparities. The article contends that such a merger could be facilitated by drawing on the social justice movement and its understanding of the societal factors that affect certain industries and their corresponding fields in the law. Wiley argues that America’s deeply entrenched health disparities can only be uprooted by the communitarian considerations inherent in the booming study of social determinants of health, which she urges can translate to policy reform, effective advocacy, and legal change through broadened health care law inquiries. Continue reading "Addressing the Health Care/Public Health Dichotomy through Justice"