Jotwell Legal Scholarship Conference Next Week

Our 5th Anniversary conference on “Legal Scholarship We Like and Why It Matters” is coming up late next week. In the United States, the role of scholarship is under assault in contemporary conversations about law schools; meanwhile in many other countries legal scholars are routinely pressed to value their work according to metrics or with reference to fixed conceptions of the role of legal scholarship. We asked contributors to write addressing at least one of three broad topics: improving the craft of legal scholarship, improving the reach of legal scholarship, or when and how legal scholarship matters.

The program promises to stimulating to say the least. The papers are or will be available online. Papers discuss what makes legal scholarship great (or terrible), what legal scholarship is good for, how to make it more accessible, what role metrics should play in the sorting of legal scholarship, and how best to make more of the good stuff. The Keynote will be by Margaret Jane Radin, which she has titled Then and Now: Developing Your Scholarship, Developing Its Audience.

It’s already clear from the submissions that there will be controversy. Consider, for example, the opening words of Improve Yourself; Not the World by Jeanne L. Schroeder & David Gray Carlson (footnotes omitted),

We question the common assumption that most legal scholarship should be oriented towards policy, or to quote the title of this session, at improving the world. Jurisprudential, critical and doctrinal scholarship should have equal prestige with policy-oriented scholarship because they more closely relate to the practice of law. Consequently, we start with one policy recommendation : “Lay off the policy recommendations.”

Policy oriented scholarship is what French psychoanalyst, Jacques Lacan, called a “university discourse.” This terminology is ironic, referring to what academics tend to do, not what they should do.

We’ll post some more teasers in the coming days. Meanwhile, it’s not too late to Register.

 
 

Exhausting Regulatory Arbitrage

Annelise Riles, Managing Regulatory Arbitrage: A Conflict of Laws Approach, 47 Cornell Int’l. L.J. 63 (2014).

A recent gathering of regulators opened with a round of congratulations: bailouts were history, bail-ins were on the march, and victory was in sight, just as long as the assembled continued to speak with one voice and kept their bankers well-clear of the public trough. Moments later, it became clear that delegates from continental Europe were marching in different directions, while delegates from certain Nordic and African countries wanted no part of the march. The U.S. and the U.K. held the line, and the meeting closed on a cheerful note, with renewed pledges of regulatory unity.

It is fashionable to criticize regulatory harmonization as hopeless, pointless and potentially harmful. Yet harmonization continues to dominate regulation of international finance in good part because it feels like the obvious answer to two problems: regulatory competition and regulatory arbitrage. Scholarly criticism of harmonization tends to focus on competition. Annelise Riles’ liberating article shows why harmonization loses to arbitrage, and offers an intriguing alternative. Continue reading "Exhausting Regulatory Arbitrage"

 
 

Appealing to Injustice

William M. Richman & William L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (2013).

Professors William M. Richman and William L. Reynolds have been writing about the “crisis” facing the U.S. Courts of Appeals—a crisis borne out of the combination of a dramatic uptick in appellate caseloads and the lack of any corresponding increase in the number of federal appellate judges—since before I was born. Readers familiar with their groundbreaking earlier work in the field might therefore wonder whether there’s anything to learn from their new monograph on the subject, Injustice on Appeal. But the longevity of their critique actually underscores the significance of their newest work. By almost any account, the crisis facing the thirteen federal Courts of Appeals is only getting worse—and the steps those courts are taking in an effort to abate that crisis (what Richman and Reynolds refer to as the “Appellate Triage” regime) are only getting that much more controversial. Indeed, it is no overstatement to suggest that Injustice on Appeal is at once the most comprehensive—and yet accessible—descriptive account to date of both the crisis itself and the Appellate Triage regime that circuit judges have devised in response.

The real contribution of Injustice on Appeal, though, is not in its descriptive account of how the appellate crisis came to be, how circuit judges have responded, or why contemporary judges and lawmakers are so comfortable with such a problematic status quo. As the title suggests, Richman and Reynolds’ thesis is that the judicial response has created “injustice,” by producing a disproportionate impact on a specific subset of litigants. In their words, the effect of the Appellate Triage regime “falls disproportionately on the poor and middle class, whose appeals are deemed less momentous than the ‘big’ cases brought by or against the government or major private economic actors.” But while it’s impossible to discount the plight of poor and middle-class federal litigants in recent years, the real question Richman and Reynolds raise (but do not answer) is whether it’s the appellate crisis—as opposed to increasingly harsh procedural and substantive rules—that is to blame. Continue reading "Appealing to Injustice"

 
 

Title VII and Tort Law: A New Perspective

Martha Chamallas, Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, Ohio St. L.J. (forthcoming), available at SSRN.

In her paper, which is a working draft and part of the Ohio State Law Journal symposium, Torts and Civil Rights Law: Migration and Conflict, Professor Chamallas takes on the daunting task of analyzing how the Supreme Court’s use of agency principles have helped develop employment discrimination doctrine. Professor Chamallas does a superb job of explaining how the Court has used common-law tort principles to help create the theory of vicarious liability in workplace cases. She explains how the use of agency principles has diminished the scope of liability under Title VII, and she further analyzes how this erosion has played out in the case law. Most importantly, however, her paper “challenges the logic and the wisdom of borrowing tort and agency law to craft liability rules for Title VII” and calls on Congress to act swiftly to correct the situation. The paper thus does an excellent job of not only identifying the problem of integrating tort law into employment cases—it provides a workable remedy for resolving the issue.

In the first part of the paper, Professor Chamallas looks at the definition of “employer” under the statute. She explains how agency principles have helped define this term over time. Professor Chamallas undertakes a historical review of this definition, and she explains the importance of the role of the common law in the development of the definition of “employer” under Title VII. The paper further examines the Supreme Court’s well known and controversial employer liability decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, exploring the role these sexual harassment cases have had in shaping employment law through common-law agency principles. In particular, the paper examines the impact these cases have had on the development of vicarious liability and negligence theory in hostile work environment cases. Professor Chamallas discusses how the Supreme Court’s use of the Restatement (Second) of Agency in these cases was instrumental in establishing the negligence and strict liability standards for Title VII cases. Continue reading "Title VII and Tort Law: A New Perspective"

 
 

Reenvisioning DRR as a Two-Stage Interpretive Tool for Determining the Testator’s Probable Intent

Richard F. Storrow, Dependent Relative Revocation: Presumption or Probability?, 48 Real Prop. Tr. & Est. L.J. 497 (2014), available at SSRN.

Professor Richard F. Storrow’s comprehensive article about the doctrine of dependent relative revocation (DRR) is one that I like lots because I learned so much reading it. I will try to summarize some of the highlights of the article—there are many more (including, for example, a discussion of student responses to one of his exam questions invoking DRR).

Professor Storrow notes that the body of jurisprudence around DRR “lacks coherence” (P. 499), and he provides, throughout the article, many different formulations of the doctrine from courts and commentators. He notes that DRR “holds that revocation [of a will] is legally invalid if a testator has made some sort of mistake in performing it—specifically a mistake either related to her motivation for revoking the will or related to what she desires that revocation to accomplish.” (P. 501.) He writes that some courts have viewed it as a rule of construction/interpretive device while other courts have viewed it as a rule of law/legal principle. (P. 499.) Ultimately, Professor Storrow proposes that DRR be situated “within the familiar framework of will interpretation” (P. 541) as an interpretive device that has two stages: the first stage “would ask whether the circumstances surrounding the revocation render the intent to revoke ambiguous,” and the second stage “would examine the probable intent of a reasonable testator to revoke or not to revoke in those circumstances” (P. 499). Continue reading "Reenvisioning DRR as a Two-Stage Interpretive Tool for Determining the Testator’s Probable Intent"

 
 

Tort Liability as Compensation

Mark Gesitfeld, Compensation as a Tort Norm, in Philosophical Foundations of the Law of Torts (John Oberdiek ed., 2014).

For more than a decade, Mark Geistfeld has been developing an original and sophisticated theory of tort. Professor Geistfeld’s work has been characterized by a remarkable and admirable confluence of four characteristics. First, the work is attentive to, and respectful of, the fundamental commitments and nuances of tort doctrine and policy. Second, Professor Geistfeld’s writings display a deep knowledge of tort history and theory. Third, the work deploys a deeply sophisticated knowledge of economics but does so in language that is intelligible to those of us who are not legal economists. Fourth, the work is sensitive and responsive to the criticisms that legal philosophers have made of the economic analysis of torts. The result is an impressively original tort theory in the making. In Compensation as a Tort Norm, published in John Oberdiek, ed., Philosophical Foundations of the Law of Torts (Oxford, 2014) Professor Geistfeld both summarizes and extends his project.

The central claim of Compensation as a Tort Norm is vividly counterintuitive. According to Professor Geistfeld, all tort law—especially that part of the law which obligates actors to avoid harming others and thus demands the avoidance of actions whose occurrence triggers the payment of compensation—is compensatory. Quoting Frederick Pollock, who was himself quoting Justinian, Professor Geistfeld begins his paper with the claim that the law of torts “has for its main purpose nothing else than the development of [the] precept ‘Thou shalt do no hurt to thy neighbor.’” Elaborating, Geistfeld quotes Percy Winfield’s restatement of this precept as the principle that “all injuries done to another person are torts, unless based on some justification recognized by law.” The natural way to read these remarks, I think, is to take them to assert that the infliction of injury is presumptively tortious. Therefore, the infliction of injury presumptively gives rise to a claim for compensation. Continue reading "Tort Liability as Compensation"

 
 

Evaluating the Efficacy of Nonmonetary Tax Penalties

Joshua D. Blank, Collateral Compliance, 162 U. Pa. L. Rev. 719 (2014).

Monetary penalties for noncompliance are a routine feature of the tax laws. The tax literature includes extensive debate over different ways of structuring those penalties to improve tax compliance and eliminate the tax gap. In Collateral Compliance, Josh Blank shifts his gaze beyond that debate to examine what he labels “collateral tax sanctions”—nonmonetary penalties that federal and state governments impose, in addition to the monetary ones, for failing to comply with the tax laws.

One rather dramatic example of a collateral tax sanction comes from the Supreme Court’s 2012 decision in Kawashima v. Holder, in which the Court upheld a Bureau of Immigration Appeals interpretation of the Immigration and Nationality Act that treated willfully filing a false tax return as an “aggravated felony” and, thus, a deportable offense for non-citizens. Less spectacularly, perhaps, states regularly suspend driver’s licenses, professional licenses, liquor licenses, or hunting licenses for nonpayment of taxes. Congress has considered legislation revoking passports and denying FHA-insured mortgages as punishment for tax delinquency.

Plenty of articles examine the pros and cons of one collateral tax sanction or another. Blank’s article is unique for his effort to step back and consider collateral tax sanctions more systematically. He explores in some depth why collateral tax sanctions sometimes succeed where monetary tax penalties fail. He also proposes some basic principles for structuring collateral tax sanctions to maximize their effectiveness as a mechanism for encouraging tax compliance. Continue reading "Evaluating the Efficacy of Nonmonetary Tax Penalties"

 
 

Green Go! – The Military’s Sustainability Mission

­­Sarah E. Light, The Military-Environmental Complex, 55 B.C. L. Rev. 879 (2014).

“Green Go!” The U.S. battle cry in the Mexican-American War that, according to some etymologists, earned Americans their nickname as “gringos” offers a fitting description of the Department of Defense’s growing interest in sustainable energy generation and use. In The Military-Environmental Complex, Sarah E. Light takes stock of the military’s complicated, often conflicted relationship with environmental objectives and explores the drivers behind the armed forces’ recent promotion of sustainable energy. Building on the military-industrial complex’s history of fostering technology innovation while also enabling abusive rent-seeking, Light offers recommendations to ensure that the emerging military-environmental complex strikes a socially beneficial balance between mission objectives and broader environmental goals.

From an environmentalist perspective, the military’s many statutory and regulatory exemptions from environmental laws that conflict with its national security mission raise concerns that military and sustainability objectives are inherently at odds with one another. But Light makes a convincing case that both types of objectives may, in fact, be more aligned than is commonly recognized. Continue reading "Green Go! – The Military’s Sustainability Mission"

 
 

On the Rise of Lawyers in Lobbying in India

Bhargavi Zageri, Notes from the Field: How India’s Corporate Law Firms are Influencing Her Legal, Policy and Regulatory Frameworks, HLS Program on the Legal Profession Research Paper No.2014-19, 2014, available at SSRN.

Just as there has been a striking growth in scholarship on Indian law in recent years, there has also been a blossoming of writing on the Indian legal profession. Some of this writing has been less academic, and targeted at Indian lawyers themselves. Fitting the growing affluence of the Indian bar, there are now at least three online publications –Legally India, Bar & Bench, and Livelaw – that provide the latest news of the day about law firms, judges, law schools, and well known advocates in India. At the same time, a number of scholars, both inside and outside of India, have begun writing extensively on different aspects of the profession.

For example, in recent years Jayanth Krishnan has written on the motivations for the creation of “peel-off” law firms in the Indian corporate bar, Swethaa Ballakrishnen on women’s relative success in Indian corporate law firms, Pavan Mamidi on small town lawyers, Umakanth Varottil on the growth of the M&A bar in India, Abhinav Chandrachud on the motivations of Indian Supreme Court clerks, Greg Shaffer, James Nedumpara, and Aseema Sinha on building India’s legal capacity for international trade disputes, and David Wilkins and Mihaela Papa on how globalization has impacted the legal profession in India. Much, although certainly not all, of this recent writing on the Indian legal profession has taken place as part of the Globalization, Lawyers, and Emerging Economies (GLEE) Project at the Center on the Legal Profession (CLP) at Harvard Law School (full disclosure: I am currently a fellow at CLP and have contributed to the GLEE project). Continue reading "On the Rise of Lawyers in Lobbying in India"

 
 

Citizenship by Descent

There are three paths to citizenship in the United States: birth, naturalization, and descent. In recent political debates, birthright citizenship gets all the attention. Republican lawmakers perennially propose amendments that would make the children of undocumented immigrants ineligible for citizenship, relying on an interpretation of the Fourteenth Amendment that assumes such immigrants are not “subject to the jurisdiction thereof” and are therefore not within the protections of jus soli. But what of citizenship by descent, also known as jus sanguinis or derivative citizenship? This is a powerful mode of acquiring citizenship: it allows U.S. citizen parents living abroad to pass their citizenship status to their children who are not born on U.S. soil. This is literally citizenship “by blood.” This method of transmission is not provided for in the Constitution but has been recognized in the U.S. by statute since 1790. The current jus sanguinis statute does not receive much press or scholarly attention, which is surprising given that it is clearly discriminatory when it comes to children born out of wedlock to a U.S. citizen parent and a foreign parent. If the U.S. citizen is the mother, transmission of U.S. citizenship is virtually automatic. If the U.S. citizen is the father, transmission is not automatic: the father must demonstrate a range of prerequisites, including blood tests and proof of legitimation, among other requirements. Fathers and their illegitimate offspring have challenged this unequal treatment, but the Supreme Court has thus far failed to overturn the provision. In one seminal case, Nguyen v. INS (2001), the Immigration & Naturalization Service defended the provision by arguing that the differential treatment of mothers and fathers was necessary for “administrative convenience.” They argued, in so many words, that the law is justified in requiring fathers to provide more proof of the relationship to their illegitimate child since it is harder to tell if the father is really the father, even if his name is on the birth certificate.

In her article “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” Kristin Collins looks in depth at the origins, interpretations, and practices of derivative citizenship over the course of the nineteenth and twentieth centuries. In doing so, she not only systematically destroys the simplistic argument provided by the INS in the Nguyen case, but also reveals the deeply racialized nature of jus sanguinis. She demonstrates that throughout much of our history, derivative citizenship was moored in intertwined visions of women’s subordinate place in the family and of nonwhite persons’ subordinate place in the polity. Courts, agencies, administrators and consular officials across decades found ways to interpret and apply the law of derivative citizenship to favor white children over nonwhite children. Sometimes these efforts were explicit but other times they were hidden. It takes a skilled and capable historian like Collins to be able to dig beneath the surface of decades of government documents and court records and put the pieces of the jus sanguinis puzzle together. Continue reading "Citizenship by Descent"

 
 

The Depreciation of Precedent

Ryan C. Black & James F. Spriggs II, The Citation and Depreciation of U.S. Supreme Court Precedent, 10 J. Empirical Legal Stud. 325 (2013).

Landes & Posner’s 1976 article Legal Precedent: A Theoretical and Empirical Analysis is a path-breaking study in two ways. Drawing on the analysis of capital formation and investment, they were the first to offer a realistic theory of precedent. To them, precedents produce a flow of information that decreases in value over time as society evolves. Legal Precedent is also an early example of empirical scholarship in the law schools. To measure the efficacy of a precedent, they developed the-then novel strategy of counting the number of times judges cite to a decision. Applying this approach to samples of federal court decisions they found that precedent depreciated over time.

Unlike the precedents in their study, Landes & Posner’s paper hasn’t seemed to depreciate much. In just the last year or two, it has been cited in studies on labor law, judicial behavior, corporate law, and behavioral economics; and in journals as diverse as Theoretical Inquiries in Law, International Review of Law & Economics, the Journal of Evolutionary Economics, and the Annual Review of Political Science.

Black & Spriggs’s new article, The Citation and Depreciation of U.S. Supreme Court Precedent, could be seen as just another of the many studies that, as they write, “owes its origin” to Landes & Posner—just another citation. But that characterization would be a mistake. After all these years, Black & Spriggs break new ground. Continue reading "The Depreciation of Precedent"