Classing up the Agency

In previous jots, I have highlighted articles that addressed not the why of procedure but the how. Although other forms of legal scholarship are valuable, I have always had a soft spot for legal scholarship that provides guidance for judges and policymakers on how best to set up legal procedures.

It should therefore come as no surprise that a recent piece that I like lots is not a journal article, but a government report that addresses the problem of mass litigation in administrative agencies. The report discusses, and recommends, the use of class action and similar procedures in administrative adjudicatory proceedings that involve numerous claimants against one or a few defendants. Unlike a law journal article—which, like a message in a bottle, may float out to sea never reaching its intended audience—this report not only directly addresses policymakers, but they actually read and implemented it. Continue reading "Classing up the Agency"

 
 

A Federalism Stake in the Heart of the Unitary Executive?

Leah M. Litman, Taking Care of Federal Law, 101 Va. L. Rev. 1289 (2015).

The passing of Justice Antonin Scalia removes from the Supreme Court its most strident modern advocate of the “unitary executive” idea—specifically, the view that Article II’s vesting of law execution power in the President forbids Congress to extend any such authority to individuals or entities not subject to “meaningful presidential control.” Printz v. United States, 521 U.S. 898, 922 (1997). I have long argued that this interpretation cannot be reconciled with our constitutional history. But an insightful, tightly argued new article by Leah Litman, a Harvard Law School Climenko Fellow and Lecturer in Law, demonstrates that this view of the separation of powers can also not be reconciled with the Court’s contemporaneous preemption jurisprudence. Put simply, despite the Court’s occasional pronouncements in separation of powers cases that “Article II requires the President alone to execute federal law,” the “preemption cases suggest that nonexecutive actors may likewise vindicate the public interest in seeing federal law enforced.” (P. 1293-94.)

Professor Litman’s thesis rests on an astute recognition of the relationship in separation of powers jurisprudence between two core ideas. One is the familiar truth that federal law execution is policy-laden at every stage. Implementing federal law entails the exercise of significant discretion, both in legal interpretation, Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), and in deciding whether to move forward in individual cases, Heckler v. Chaney, 470 U.S. 821 (1985). Indeed, but for the ubiquitous presence of discretion in federal law execution, the unitary executive ideal would presumably carry very little real-world punch. Continue reading "A Federalism Stake in the Heart of the Unitary Executive?"

 
 

Culture as Keystone

Recent Supreme Court decisions that embrace corporate personhood in rights-bearing contexts have caused broad public debates. Non-lawyers have long accepted the view that a corporation is a legal entity separate from its owners and managers and that this entity should be treated by the law like a person sometimes, like for tax purposes, liability for injuries, and property ownership, for example. The idea that corporations might have some “rights” linked to those situations, like those that attend to property ownership, is also fairly well accepted. Despite that widespread acceptance, many balked when the Supreme Court held that corporations had additional rights that we tend to consider limited to humans, like the right to engage in political speech and practice religion. Complicating the debate, the Court provided little guidance on why corporations are like people in these situations, and why they might not always be in future cases.

Although the high-profile cases are not centrally about employment, they have serious worklaw overtones. If corporations have exactly the same speech rights as individuals, are they free to silence employees, like public employers often may? Do corporations have a substantive due process right not to pay minimum wages or privacy rights that could limit OSHA inspections or protect against disclosure of EEO or safety data to federal regulators? If corporations have religious beliefs and practices, can they insulate employment decisions from limits imposed by civil rights laws? Can they avoid paying minimum wages by designating some or all employees ministers? If corporations have a racial identity, does that affect their ability to engage in different kinds of affirmative action? These normative questions about the rights and responsibilities corporations have to their employees and, because of the way we use work to distribute social goods, to society, are central to the work of most worklaw scholars. Yet the ordinary tools of legal doctrine have not provided answers. Continue reading "Culture as Keystone"

 
 

You as a Brand: A Legal History

Dr. Samantha Barbas’ book, Laws of Image: Privacy and Publicity in America, makes an original, important, and engaging contribution to the history of the privacy law in the United States. In the process, the book illuminates how we became a culture obsessed with image management and how the law developed and continues to evolve to protect our rights to become our own personal brands.

In Laws of Image, Barbas analyzes a disparate body of law—mostly tort law—that protects individuals’ rights to control how they are portrayed by others. Barbas dubs this body of law the “laws of public image.” Through careful historical analyses of social, cultural and legal developments, she explains the origins of our culture of personal branding and gracefully charts the transition from Victorian-era sensibilities that condemned those who made spectacles of themselves to modern sensibilities that reward such behavior. Continue reading "You as a Brand: A Legal History"

 
 

The Estate Tax of Our Youth

In The One-Hundredth Anniversary of the Federal Estate Tax: It’s Time to Renew Our Vows, Paul L. Caron tracks how the modern estate tax has evolved since its 1916 inception and contends the tax should be modified to serve its original purposes. Caron analogizes the nation’s relationship to the estate tax as that of an aging marriage, arguing that our passion for the tax has cooled with the passage of time. He urges us to find that lost passion and renew our vows to the estate tax we once so adored. To do so, we must reinvigorate the estate tax and restore it to its historical position as an important, robust component of our federal tax system.

Caron contends that Congress enacted the federal estate tax in 1916 to serve three policy ends. First, the act was enacted as a revenue measure, conceived in part to meet the increasing fiscal obligations in the era of World War I. Second, the tax was designed to increase the progressivity of the tax system as a whole, counterbalancing a growing inequality of income in the early twentieth century. Third, the tax was structured to help curb rising concentrations of American wealth. Caron contends that these three goals are as relevant, and important, today as they were a century ago. To meet them, he urges, the federal estate tax should be reinvigorated by reversing the recent trend toward higher exemption levels and lower rates. Paraphrasing Proverbs 5:18, Caron urges us to restore “the estate tax of our youth.” Continue reading "The Estate Tax of Our Youth"

 
 

Kuznets Waves of Rising and Falling Inequality?

The age of inequality has prompted an age of writing about inequality. Now writing about inequality has started to come of age. An important example is Branko Milanovic’s new book, Global Inequality: A New Approach for the Age of Globalization.

Milanovic, an economist and Senior Scholar at CUNY’s Luxembourg Income Study Center who has been studying global data regarding economic inequality for more than twenty years, discusses three main topics in this book: inequality within a given country, that between or among countries, and what might be the path of global inequality in the future. While the book’s contributions on all three topics contain numerous points of interest, the first has especial theoretical relevance. Milanovic suggests that inequality may decrease in the coming decades in some rich countries, but probably not in the United States. Continue reading "Kuznets Waves of Rising and Falling Inequality?"

 
 

Context Clues

Kristen Stilt, Contextualizing Constitutional Islam: The Malayan Experience, 13 Int’l J. Const. L. 407 (2015).

Constitutional drafters, advisors, and commentators alike should read Kristen Stilt’s excellent article, Contextualizing Constitutional Islam: The Malayan Experience. It provides an engrossing history of a constitutional creation story—the 1957 Constitution of the Federation of Malaya (now Malaysia)—and sheds important light on the development of what Stilt terms “constitutional Islam,” or the incorporation of references to Islam and Islamic law in modern constitutions. These accomplishments alone would be enough for an enthusiastic jot. But the article does much more, raising fascinating questions about the nature of constitutional compromise and the role of religion in societal conflict, as well as pragmatic concerns about the effectiveness of international constitutional advisors.

Stilt’s article succeeds in its main goal: developing (and complicating) our understanding of constitutional Islam by showing how various types of constitutional clauses referring to Islam are enmeshed in larger legal, political, economic, social, and cultural debates. And she argues persuasively that future work must engage with both the international and domestic dimensions of the debates over constitutional Islam. Without this duality in nuance, at least two problems could arise: the influence of international models and international affairs might improperly be discounted, or a clause that appears to be cut and pasted from one constitution to the next could incorrectly be assumed to have a uniform meaning when internal justifications for its inclusion vary dramatically. Continue reading "Context Clues"

 
 

Restoring the Integrity of the Pharmaceutical Science Record: Two Tales of Transparency

Inappropriate prescription and overconsumption of pharmaceuticals is one of the most pressing public health concerns in North America. Aggressive pharmaceutical promotion practices are widely recognized as a major contributing factor. Two recent medical journal articles provide further evidence of serious problems with the scientific record that has become an intrinsic part of pharmaceutical marketing. They document each in their own way the corruption of scientific practices in which academic scientists appear to play a significant role, but also indicate how the scientific community and civil society can help correct the record and expose misconduct. The papers further illustrate how legal tools can enable them to do so. They both affirm the importance of transparency, which many in the medical and health policy community increasingly support as essential to restore confidence in the science surrounding pharmaceuticals.

Jon N. Jureidini, Jay D. Amsterdam, and Leemon B. McHenry’s paper in the International Journal of Risk and Safety in Medicine is a case study of how the pharmaceutical company Foster used a scientific publication to boost prescription of its blockbuster anti-depressant citalopram. A paper by Joanna Le Noury and colleagues in the British Medical Journal is the first publication produced as part of an innovative initiative by the scientific community aimed at correcting the scientific record on a host of pharmaceutical products. The study involves a reanalysis of the raw data of a Smithkline Beecham (now GSK)-sponsored published study on the efficacy of paroxetine and imipramine for the treatment of depression in adolescents. Continue reading "Restoring the Integrity of the Pharmaceutical Science Record: Two Tales of Transparency"

 
 

When it Comes to Lawyers… Is an Ounce of Prevention Worth a Pound of Cure?

Ben Franklin is famous for saying “an ounce of prevention is worth a pound of cure,” but there are lots of similar messages. We are told to “measure twice and cut once” and to “look before you leap” and that “a stitch in time saves nine.” But what about lawyer regulation? Does this same message hold true? Until recently, the answer in the United States might have been no. Most of those who regulate U.S. lawyers have traditionally focused on responding – with discipline or another sanction – after a problem arose.

This situation is finally starting to change in the United States. Because I consider proactive lawyer regulation to be a very positive development, Professor Susan Fortney’s recent article entitled Promoting Public Protection is one of the articles that I now regularly cite and recommend to those with whom I speak. Although Promoting Public Protection is a condensed version of a longer article coauthored by Professor Fortney, I often recommend the Promoting Public Protection article because it is succinct, yet does a wonderful job of conveying information about the important empirical and theoretical work that has been done about proactive management-based regulation, or PMBR. (PMBR is a term that originally was coined by Professor Ted Schneyer.) Continue reading "When it Comes to Lawyers… Is an Ounce of Prevention Worth a Pound of Cure?"

 
 

European Property Law as New Private Law?

Christian von Bar, Grundfragen europäischen Sachenrechtsverständnisses, 70 JuristenZeitung 845 (2015).

Looking at property law from only one particular national perspective – even if that perspective is impressive, as is the case with U.S. law – is, in our globalising world, no longer possible. Markets are integrating, both at a regional and at a worldwide level, and what happens elsewhere, in both economic and legal terms, affects all of us.

This is how European Union law, and the laws of the E.U. Member States, may begin to affect U.S. lawyers (but certainly not them alone) after the agreement on the Transatlantic Trade and Investment Partnership (TTIP) enters into force. The creation of one integrated transatlantic market will result in more and more areas where U.S. and E.U. law will meet and may result in legal conflict.

The European Union does not have one system of property law. Each Member State has its own law of property. However, E.U. internal market law, with its freedom of goods, services, capital, and persons, has an increasing impact on national property law. More and more the question is raised if a European property law could be developed.

In his recently published article (based upon his recently published book), Christian von Bar from the University of Osnabrück in Germany explains his view on how a European property law could look like.1 His approach is based on the civil law tradition, more particularly the German civil law tradition. In that tradition, the academic analysis of the law is highly abstract and aimed at overall systematisation by presenting strictly defined concepts and meticulously formulated rules. As a consequence, law professors play a prominent role in the process of lawmaking and adjudication. Continue reading "European Property Law as New Private Law?"

 
 

Conceptual and Metaphysical Modalities in Jurisprudence

Stefan Sciaraffa, Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence, 6 Jurisprudence 391 (2015), available at SSRN.

Stefan Sciaraffa’s Constructed and Wild Conceptual Necessities in Contemporary Jurisprudence is a review of a fine collection of essays edited by Luís Duarte d’Almeida, James Edwards, and Andrea Dolcetti, entitled Reading HLA Hart’s ‘The Concept of Law,’ published by Hart Publishing in 2013. While the volume contains many provocative and insightful pieces by leading theorists in conceptual jurisprudence, I want to focus on an important – and frequently overlooked – point made by Sciaraffa on the nature of the relevant sense of necessity in conceptual theories of law.

Sciaraffa’s essay makes a number of distinctions of theoretical importance, including the distinction between “constructed” and “wild” concepts of law; however, the most illuminating one, as it pertains to conceptual jurisprudential methodology, is between metaphysical and conceptual necessity. Sciaraffa defines “metaphysical necessity” as “concerned with identifying and explicating those features an object has by virtue of itself and irrespective of the way we conceptualise or talk about the object” (P. 392). He explains “conceptual necessity” as concerned with identifying “features that are true of law by virtue of the way we talk about or conceptualise the law” (Id.). Continue reading "Conceptual and Metaphysical Modalities in Jurisprudence"