Rethinking Negotiated Rulemaking

Hannah J. Wiseman, Negotiated Rulemaking and New Risks: A Rail Safety Case Study, Wake Forest J.L. & Pol’y (forthcoming 2017), available at SSRN.

Hannah Wiseman’s insightful case study has forced me to rethink my views both on negotiated rulemaking and, more broadly, on all forms of notice and comment rulemaking. Negotiated rulemaking (Reg-Neg) adds one important step—negotiation—to the familiar notice and comment process. Reg-Neg got a lot of attention, both positive and negative, a quarter of a century ago. Many agencies experimented with the process. The D.C. Circuit expressed its approval of Reg-Neg in its 1988 opinion in NRDC v. EPA, 859 F. 2d 156, and Congress legitimated the process by enacting the Negotiated Rulemaking Act of 1990, 5 U.S.C. §§ 561-570.

After attracting an initial flurry of scholarship—pro and con—and after an initial period in which many agencies tried the process, Reg-Neg seemed to disappear both from the scholarly literature and from agency practice. Professor Wiseman has found, and studied, an important context in which Reg-Neg continues to be used, with results that do not fit well with either the views of its supporters or its detractors. Continue reading "Rethinking Negotiated Rulemaking"

 
 

Pregnancy, Accommodation, and the Workplace

Bradley A. Areheart, Accommodating Pregnancy, 67 Ala. L. Rev. 1125 (2016).

In Accommodating Pregnancy, Professor Bradley Areheart takes on the ambitious project of evaluating the current law of pregnancy discrimination in the workplace. Professor Areheart reviews the existing proposals to “accommodate” pregnancy under workplace laws, disagreeing with any characterization of pregnancy as a disability. The article suggests alternative ways of providing these same types of accommodations while avoiding the “disability” label. It is also one of the first published works to examine the Supreme Court’s recent decision in Young v. UPS – a case alleging pregnancy discrimination in the workplace that has generated substantial discussion and debate among legal scholars.

Courts and litigants have struggled for decades with how to formulate the rights of pregnant employees in the workplace. Professor Areheart begins by examining the various protections afforded by the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). In place of treating pregnant workers as disabled or advancing pregnancy-specific accommodation rights, Professor Areheart suggests a different model. Under this new approach, he identifies alternatives that would not present the same risks he identifies for disabled workers yet would still provide important accommodations to pregnant employees. The approach considers accommodation law from a more “gender-symmetrical” point of view. Continue reading "Pregnancy, Accommodation, and the Workplace"

 
 

Decluttering the Estate Tax

Wendy C. Gerzog, Toward a Reality-Based Estate Tax,  57 B.C. L. Rev. 1037 (2016).

Where Marie Kondo taught us how to declutter our homes in The Life-Changing Magic of Tidying Up, Professor Wendy Gerzog provides in her article six proposals to declutter the estate tax. Author Kondo suggested that we examine each household item, ask whether it sparks joy, and then keep it only if we answer yes. Professor Gerzog writes that the estate tax should be more “reality-based,” meaning that the estate tax “should encompass testamentary property transfers at their real values, and the marital and charitable deductions should reflect actual marital and charitable transfers.” (P. 1037.) In her wide-ranging and thought-provoking article, Professor Gerzog examines certain “devices and distortions that have crept into the estate tax” (P. 1037.), discusses how each frustrates the goal of the estate tax, and then provides proposals to clear them from the estate tax.

The first device examined is the irrevocable life insurance trust (ILIT), the life insurance proceeds of which are excluded from the decedent’s gross estate. Professor Gerzog has two proposed changes as to ILITs, the first being to amend § 2035 to “include in decedent’s estate the full date of death proceeds of life insurance on the decedent’s life to the extent to which the decedent has paid, directly or indirectly, insurance premiums within three years of his death” (this proposal is intended to include “any transfers by decedent to a trust within three years of death that in fact can be traced to the payment of life insurance premiums on decedent’s life”). (P. 1042.) Professor Gerzog’s second proposal is to amend § 2042 such that, except when surviving partners in a business partnership use insurance proceeds to buy a deceased partner’s interest in the partnership, the decedent’s gross estate includes life insurance proceeds paid on decedent’s life to the extent to which the decedent at any time, directly or indirectly, paid the premiums on or irrevocably designated the beneficiary or beneficiaries of the policy. (P. 1043.) Continue reading "Decluttering the Estate Tax"

 
 

ABA Journal Names Jotwell to ‘Blawg 100’

honoreebadgeThe ABA Journal has once again named Jotwell to its ‘Blawg 100’ list of “most compelling” legal blogs.

This designation is especially meaningful given the source. Jotwell is structurally an academic project in which academics write about the work of other academics. It is thus particularly affirming and noteworthy that the ABA Journal — whose audience is mostly practitioners — finds that what we are doing here is or should be of interest to the bar. (Needless to say, we agree!)

 
 

I Can Explain That

James Goudkamp & John Murphy, The Failure of Universal Theories of Tort Law, 21 Legal Theory 47 (2015), available at SSRN.

Richard Posner has claimed that tort law is best understood as a means of incentivizing actors to take cost-efficient precautions against inflicting losses on others. “Not so!” says Ernest Weinrib, who insists that tort is an embodiment of corrective justice. Against both, Robert Stevens maintains that tort law defines and vindicates rights we have against each other. How are we to decide which of these theories, if any, offers the best interpretation of tort law?

In their provocative article, The Failure of Universal Theories of Tort Law, Professors Goudkamp and Murphy make a basic, important, yet oft-ignored point: to assess the validity of an interpretive theory, one must be clear on the object of interpretation. About what body of law are Weinrib, Posner, and Stevens theorizing? What permits these and other interpretive theorists to claim support from, or to dismiss as erroneous, decisions issued by American, Australian, Canadian, and English courts? Until we answer this question, we can’t assess whether any of them have offered fitting interpretations. Continue reading "I Can Explain That"

 
 

Real-World Tax Screening

Emily Satterthwaite, Tax Elections as Screens, Queen’s L. J. (forthcoming 2016), available at SSRN.

The concept of “screening” taxpayers is theoretically appealing. According to optimal tax theory, our tax system should impose tax liability based on ability, which is a characteristic that reflects relative well-being. However, since ability cannot be directly observed, the tax system has to rely largely on income, a presumed surrogate of ability, as a tax base. The problem is that income is easily manipulable, making the tax system an inefficient tax on ability. Screening is a potential, partial solution to this problem. Screening involves relying on other characteristics that are more revelatory of ability. For instance, as it turns out, height is surprisingly strongly correlated with earning ability. However, as theoretically appealing as screening may be, the discussion of it is generally politically unrealistic enough, or sufficiently divorced from the realities of the actual tax system, to make it a largely academic exercise.

In Tax Elections as Screens, Emily Satterthwaite gets beyond the theoretical possibilities of screening taxpayers. She does so by examining how an existing tax election—the election to itemize deductions—can serve as a screening mechanism. By examining how screening may work in our actual tax system, Satterthwaite offers an important contribution that has few companions in what is a largely theoretical field. Continue reading "Real-World Tax Screening"

 
 

Access, Exclusion, and Value

Jonathan Klick & Gideon Parchomovsky, The Value of the Right to Exclude: An Empirical Assessment, 165 U. Pa. L. Rev. (forthcoming 2016), available at SSRN.

The concepts of exclusion and access occupy the minds of many property scholars. We regularly debate the problems with, and benefits of, exclusion. We talk about how foundational the right to exclude is, and should be. We talk about whether and when the right to exclude should bend to accommodate other interests. And we talk about the value of exclusion. While these debates have filled many pages in law journals and hours of panel discussions, Professors Jonathan Klick and Gideon Parchomovsky noticed that something was missing from the discourse: empirical evidence.

They seek to fill that void with The Value of the Right to Exclude: An Empirical Assessment, forthcoming in the University of Pennsylvania Law Review. The authors undertake their analysis by examining the effect of the passage of right-to-roam laws in England and Wales on property values (P. 5 n.18), perhaps motivated to quantify Professor Henry Smith’s statement that “giving the right-to-roam stick to a neighbor or to the public affects the value of the remaining property.”1 These laws give members of the public some recreational access—for activities like walking and hiking—to some private property. Klick and Parchomovsky’s article suggests that even small limitations on the right to exclude that result from right-to-roam laws can significantly decrease property values. Continue reading "Access, Exclusion, and Value"

 
 

Equity, the Judicial Power, and the Problem of the National Injunction

Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction (2016), available at SSRN.

Samuel Bray’s newest article tackles a topic of serious concern. The national injunction is an injunction against the enforcement of a federal statute or regulation against all people nationwide, not simply to protect the plaintiffs in one case. It is a powerful tool for political actors and interest groups who use litigation to accomplish regulatory and de-regulatory goals.

Unknown to traditional equity, the national injunction somehow wormed its way into judicial practice in the second half of the twentieth century and has been deployed with powerful effect through the present. Bray identifies some of the principal problems caused by the national injunction, investigates the changes that led to its emergence and spread, and offers a simple principle for limiting injunctive relief to the protection of plaintiffs. If adopted, Bray’s prescription would end the national injunction. Continue reading "Equity, the Judicial Power, and the Problem of the National Injunction"

 
 

Robbing the Poor

Professor Daniel Hatcher’s new book opens up new, fertile, ground for poverty law scholarship and critique. The book contributes not only to our understanding of how “cooperative” federalism—which is a crucial part of many anti-poverty programs—works in practice but also the impact that state budget shortfalls can have on the most vulnerable members of society. The Poverty Industry shows the myriad ways that states, in collusion with private companies, misuse money meant to help the poor, primarily by diverting federal matching funds from their intended purposes into the general fund. Hatcher’s three main examples—taken from the foster care, Medicaid, and child support programs—highlight the perverse incentives that lead state agencies to take actions that directly contradict their mandate in order to provide states with additional unrestricted revenue.

With the support of private companies contracted to maximize money collected either from the federal government or from the poor themselves, states are neglecting and, worse, directly harming whole groups of those with the greatest needs. As Hatcher shows states are taking social security, even survivor, benefits from children in the foster care system while acting as the childrens’ “representative payee.” (Pp. 65-110.) To game federal Medicaid payments, states use shell games that involve falsely inflating state Medicaid contributions on paper–using a variety of techniques from creating fully refunded bed taxes on hospitals to making elevated payments to providers–that are immediately kicked back to the general fund. (Pp. 111-42.) With the assistance of private contractors, states aggressively pursue child support payments and then, in the name of “cost recovery,” divert what little money is collected from the kids who should benefit to the state budget. In their aggressive pursuit of child support the states effectively ignore both the “best interests of the child” standard and the often destructive consequences to the often fragile relationship between fathers and mothers. (Pp. 143-79.) The Poverty Industry ends by giving other examples of how states and municipalities seek to profit off the poor, ranging from drugging the elderly to reduce expenses at state nursing homes to paying for basic services such as courts and policing through fees and fines. (Pp. 183-206.) In the wake of the shooting of Michael Brown in Ferguson, there has been increased attention to how such revenue generation tactics, in the context of racism and the criminalization of poverty, can harm whole communities.1 Hatcher makes a compelling case that state agencies, in their quest to generate revenue for themselves or for the general state budget, have lost sight of their mission to help those in need. Continue reading "Robbing the Poor"

 
 

Worth More Than a Thousand Words

Sherally Munshi, “You Will See My Family Became So American”: Toward a Minor Comparativism, 63 Am. J. Comp. L. 655 (2015), available at SSRN.

Sherally Munshi has written a thoughtful and moving article about the relationship among race, citizenship, immigration, and the visual imagery of assimilation and difference. In “You Will See My Family Became So American,” she tells the story of Dinshah Ghadiali, a Parsi Zoroastrian born and raised in India who immigrated to the United States in 1911, became a U.S. citizen in 1917, and prevailed over the federal government’s effort to strip him of that citizenship in 1932. Along with Ghadiali himself—proud American, soldier, erstwhile inventor, political activist, and all in all memorable character with a larger-than-life personality—the protagonists in the story are a striking series of photographs Ghadiali submitted into evidence in his denaturalization trial. Munshi’s bold and ranging exploration of a variety of themes in the legal history of race, citizenship, and immigration culminates in a close reading of these photographs, in which she shows how the images reveal the tension between the “effortful displays of Americanization… and unwitting disclosures of racial identity.” (P. 693.)

Munshi frames her discussion with a central doctrinal precedent and a proposed theoretical framework. The precedent is the Supreme Court’s decision in Thind v. United States, which in 1923 held that Bhaghat Singh Thind, “a high caste Hindu, of full Indian blood, born [in] India” was not “a white person” under the naturalization laws. Along with the previous year’s Ozawa v. United States (1922), which had held the same with respect to a Japanese man, Takao Ozawa (though with different reasoning—more on that below), the decision in Thind gave rise to efforts to denaturalize some who had become citizens before the decisions but were deemed ineligible afterwards, and formed the basis for Ghadiali’s (unsuccessful) denaturalization trial. Continue reading "Worth More Than a Thousand Words"

 
 

American Legal Ethics: Federalized, Privatized …Commercialized?

Renee Newman Knake, The Commercialization of Legal Ethics, 29 Geo. J. Legal Ethics 715 (2016), available at SSRN.

Previous scholarship has shown us how legal ethics in America has become “federalized” and “privatized.”1 In a recent essay in the Georgetown Journal of Legal Ethics, Renee Newman Knake outlines another modern phenomenon: the “commercialization” of legal ethics. Reading this piece, it becomes clear that the significant complexity now characterizing the regulatory environment for legal services in the United States, with state bars, courts, federal agencies and clients all now playing a role, shows no signs of waning.

Professor Knake’s essay focusses on two types of “profit-driven” entities: (1) legal services providers, described as “entities and individuals serving legal needs without the same training and authorization traditionally required of state-licensed attorneys”; and (2) lawyer ratings companies. The essay aims “to provoke consideration about the proliferation [of these two types of entities] in an effort to determine whether and how this phenomenon ought to inform the ways regulatory authorities conceptualize and implement legal ethics rules.” In relation to both types of entities, Professor Knake suggests that a mix of optimism and caution is warranted. She notes the promise of such entities filling some long-standing access to justice gaps while observing that careful study is warranted to measure the actual impact of their increasing presence. Continue reading "American Legal Ethics: Federalized, Privatized …Commercialized?"