Monthly Archives: July 2010

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Who’s Left With the Money?

Jacob Nussim, The Recovery of Unlawful Taxes, 28 Va. Tax. Rev. 893 (2009), available at The Free Online Library.

The Virginia Tax Review always includes something that I end up chewing on for far longer than I expect to, and the most recent number to cross my desk (Spring 2009) is no exception. It includes a piece entitled The Recovery of Unlawful Taxes by Jacob Nussim of the Bar-Ilan Law faculty in Israel.  The piece is an English language version of work that apparently has appeared in Hebrew, and a technical version of the piece has been available on SSRN for a while now.  But the food for my thoughts is all in the readily accessible VTLR version.

Issues relating to refunds of illegal taxes have reemerged recently, at least in the federal system. First came the government’s defeat in the International Court of Trade in the Harbor Maintenance Tax litigation in the 1990’s, and then came continuing litigation despite the government’s recent concessions regarding the Telephone Excise Tax.  Neither case involved major threats to the fisc, but both involve potentially significant changes in the procedural rules that historically have discouraged taxpayers from pursuing claims that federal taxes were unlawfully collected.  If Congress is forced in the coming years to invent new tax instruments, the ground rules for handing challenges to these new tax instruments will become increasingly important. Continue reading "Who’s Left With the Money?"


Juridical Delusions of Control?

Jennifer A. Chandler, The Autonomy of Technology: Do Courts Control Technology or Do They Just Legitimize its Social Acceptance?, 27  Bull. Sci. Tech. & Soc. 339 (2007), available at SSRN.

There’s this feeling I sometimes get browsing law review articles. It happens, like, once or twice in a decade. When it happens, I am so utterly struck by an article’s hypothesis that its supporting arguments practically fall by the wayside. Not because those arguments aren’t important or convincing. Ultimately, they are crucial. But, on rare occasions, the arguments are eclipsed by the author’s incredible insight in the formulation of the research question itself. This feeling that I am describing is the academic’s equivalent to a Jerry McGuire moment.

And, let me just say, Jennifer Chandler’s “The Autonomy of Technology” had me at hello. Continue reading "Juridical Delusions of Control?"


Lessons for the Survivors

John P. Heinz, When Law Firms Fail, 43 Suffolk U. L. Rev. 67 (2009).

When one of the world’s leading authorities on the legal profession writes about the demise of law firms, we should pay some good attention to it. Arguably, the financial crisis in 2008 changed the mindset of many law firm partners and their associates around the world, but to what extent? What lessons can law firms learn from this abrupt downturn after years of expansion both domestically and abroad? John P. Heinz’s article offers insights on the reasons of corporate law firms’ continuous expansion in the past decade and why their developmental strategies led to the failure of many firms in the financial crisis.

Large corporate law firms, despite their variations in areas of practice and professional expertise, follow similar strategies in their management. As Heinz points out, competition among law firms was heightened in the late 20th century by ready access to comparative data concerning the business of the firms. As a result, “profits per partner” has become the single most important statistic in evaluating a law firm’s performance. Indeed, a law firm chairman even described it as “our stock price” (p. 69). Heinz argues that this unitary evaluation standard has led to risky strategies in recruiting/eliminating partners and diversifying practice areas, with the goal of getting a profits per partner “higher than the next firm’s” (p. 70). When the corporate law market was booming, firms often had enough profit margins to afford those risky strategies, such as focusing on high-value financial transactions work. But now, the negative consequences are clearly seen in many large law firms across the world. Continue reading "Lessons for the Survivors"


Dual Parenthood and Inheritance Problems

Melanie B. Jacobs, More Parents, More Money: Reflections on the Financial Implications of Multiple Parentage, 16 Cardozo Journal of Law and Gender 217 (2010), available on SSRN.

The increasing complexity of family formation poses many challenges for law. When as many as five adults could be involved in the production of a single child – egg donor, sperm donor, gestational mother, intended mother and intended father, to take just the example of a complex surrogacy – we have to at least consider the possibility that some of our traditional rules are outdated.  Melanie Jacobs has written several pieces in which she considers whether the “two parent” rule is one of those outdated rules.  In this piece, she considers the financial implications of “multiple parentage,” including the implications for inheritance.  Why limit a child to two parents when additional ones may bring important financial as well as emotional resources to the table?

Courts and legislatures have, when given the opportunity, virtually all reaffirmed the rule that a child can have no more than two legal parents.  Thus, the Supreme Court ruled in Michael H. v. Gerald D. against granting legal parent status to the biological father of a child conceived in adultery.  The mother’s husband was conclusively presumed to be the child’s father under California law, and due process did not require that the biological father be given a formal role in his daughter’s life, even though he had acted as a parent for a significant period of time.  In a telling sentence, which Jacobs quotes, Justice Scalia writes that “law, like nature itself, makes no provision for dual fatherhood.”  And in numerous other cases, a third party with significant ties to a child – and, often, a significant role in planning for the child’s conception and birth – is ruled the odd man out.  Sometimes the excluded party is a lesbian partner who co-parented a child who has a legal father (and thus a second parent); sometimes it is a biological father, as in Michael H., whose rank in the parental hierarchy is trumped by another man’s claim to legal or presumed fatherhood; sometimes it is a former stepparent who engaged in substantial childrearing while married to the child’s mother or father; and sometimes it is one or more parties to a surrogacy, which, like the one described above, may entail the participation of as many as five different adults. Continue reading "Dual Parenthood and Inheritance Problems"


Policing the new Frontier of Workplace Discrimination

Danielle Citron, Law’s Expressive Value In Combating Cyber Gender Harassment, 108 Mich. L. Rev. 373 (2009).

Professor Danielle Citron has authored an important piece that calls for the condemnation of cyber gender harassment. Often downplayed or minimized, this problem, according to Citron, is merely the most recent iteration of abuse perpetrated against women, but inadequately documented, discouraged, and combated. Like domestic violence and sexual harassment before it, cyber gender harassment is in danger of being underestimated until too much harm has already been conferred upon the personal and professional dignity, access, and safety of women everywhere. Decrying the law’s failure to identify the harms that uniquely target and affect women, Citron laments the transmission of a signal by the law that the oppression of women through this kind of abuse is somehow tolerable. Citron is one of the foremost and earliest scholars to call for a cyber civil rights agenda that would explicitly identify cyber harassment as gender discrimination. Her emphasis on the uniqueness of  the harm that flows to women from a practice that while abhorrent, might typically be regarded as gender neutral, is of particular note, and her admonition that the law ought to educate society about this harm to effect societal reform is powerful.

This piece builds on a previous work of Citron’s, Cyber Civil Rights, 89 BULR 61 (2009), which examined the ways in which the law acts to deter and penalize online abuse. Citron now calls upon the law to recognize the unique harms that cyber harassment confers on women as individuals and as a protected class, as well as to root out and to eradicate this phenomenon. As examples of online harassment directed against women, Citron discusses, among others, cyber threats, depictions of violence against women, the publication of victims’ personal information, and attacks launched against feminist blogs and websites. She recalls the disproportionate number of female victims of this harassment and the very frequent implication of female victims’ genders by their explicit mention in the taunts and threats of harassers. As to what should be done about this problem, Citron suggests that extant civil rights legislation can be employed to fill in some of the compensatory and other gaps left open by traditional criminal and tort remedies for cyber harassment. Indeed, invoking caselaw from the 1960s, she boldly posits that Title VII of the Civil Rights Act of 1964 can be invoked when attackers and harassers prevent women from making a living on the basis of their sex. Continue reading "Policing the new Frontier of Workplace Discrimination"


The False Promise of Retributive Proportionality

Alice Ristroph, How (not) to Think Like a Punisher, 61 Fla. L. Rev. 727 (2009), available at SSRN.

As an undergraduate philosophy student, Kantian metaphysics rocked my world.  Kant’s account of human cognition as a priori and synthetic and his forging of complex epistemological theory from that metaphysical observation were like poetry to me.  Further, Kant’s ethical theory seemed like the only one based on more than just an arbitrary first principles or a posteriori human instincts about right and wrong.  Rather, Kant based his moral imperative on noncontradiction, which itself comes from the necessary conditions of cognition.  What could be more reasonable than a moral program based on metaphysical observations about the human condition?  Accordingly, I embraced retributivism with an almost zealous fervor.  It was so clean―as logical as the symmetric property of equality:  Punishment should be given to those who deserve it.  Thus, those who deserve it should be punished.

As I moved from undergrad to law school to the public defender’s office to academia, I continued to be a Kantian.  I continued to believe that the very notion of justice was embodied in the principle that we punish those who deserve it as much as they deserve.  I attributed the mass injustice of the American penal system to the retributive failings of criminal justice actors.  In short, moved by political concerns, legislators, prosecutors, and judges supported severe sentences, despite the fact that most thoughtful people could recognize that such sentences were undeserved.  If only these state actors could be better retributivists, the problems of disproportionate sentencing and skyrocketing prison population would be solved. Continue reading "The False Promise of Retributive Proportionality"


Against the Conventionalist Turn in Legal Theory: Dickson on Hart on the Rule of Recognition

Julie Dickson, Is the Rule of Recognition Really a Conventional Rule?, 27 Oxford J. Legal Stud. 373 (2007) .

Anglophone philosophy of law is remarkably focused on one book – The Concept of Law by H.L.A. Hart. This may be a mistake. It is hard to imagine a single book – much less an introductory work for undergraduates written almost fifty years ago – playing a comparable role in, say, the philosophy of language or mind. But given that The Concept of Law does occupy such an important place in the philosophy of law, it is all the more important to get what Hart said in the book right. Julie Dickson’s recent article does, in a way that has importance for the field more generally.

Hart argued that at the foundation of each legal system there is a practice among officials of enforcing norms only if they satisfy certain ultimate criteria. For example, in England officials enforce norms only if they can be traced back to the Queen-in-Parliament. Hart calls these enforcement criteria the rule of recognition for the legal system. Continue reading "Against the Conventionalist Turn in Legal Theory: Dickson on Hart on the Rule of Recognition"


Institutional Design by Default

M. Elizabeth Magill and Adrian Vermeule, Allocating Power Within Agencies, Yale L.J. (forthcoming), available at SSRN.

The central concern of administrative law is how to control agency discretion.  Agencies are handed enormous authority, and administrative law consists primarily – indeed, almost exclusively – of a set of doctrines designed to inform, curb, or enable other actors to oversee discretionary agency actions.   Administrative law is preoccupied with establishing procedures to prevent agency abuse and designing oversight by non-agency players – the President, Congress, private stakeholders, and, most obviously, the judiciary.    All the core doctrines of administrative law are generally understood as implementing basic decisions regarding institutional choice: who does what?  How should power be divided up amongst these institutions?

In Allocating Powers Within Agencies, Elizabeth Magill and Adrian Vermeule convincingly argue that in operation core administrative law doctrines are not only about institutional choice but also institutional design.  That is, they do not merely allocate authority between agencies and other actors; they also have important consequences for who does what within agencies, for how the institution is designed.  The paper elegantly reviews a number of familiar doctrines and explains the impact they have on how power is allocated within agencies.  The article’s title seems to portend a discussion of how to go about constructing agency organizational charts.  In fact, the article is not about such conscious allocation of responsibility at all.  Rather, it explains how doctrines established without consideration for their impact on internal agency operations do in fact significantly affect how power is allocated within agencies.  It thus makes an explicit and implicit plea that these impacts be thought through rather than incidental and haphazard. Continue reading "Institutional Design by Default"


Inheritance and Presumptions

T.P. Gallanis, Death by Disaster: Anglo-American Presumptions, 1766-2006, in The Law of Presumptions: Essays in Comparative Legal History (R.H. Helmholz & W. David H. Sellar eds., 2009), available at SSRN.

The problem of simultaneous death has troubled inheritance law for many centuries.  If a common accident kills both Mother and Son, and Mother’s will names Son as her primary devisee, does Mother’s property pass through Son’s estate to his heirs?  Or does it pass instead to the person next in line under Mother’s will?

American teachers of trusts and estates know where to look for the answer to this question:  a statute.  Since the mid-twentieth century, widely adopted uniform acts have attempted to solve the puzzle of simultaneous death by establishing a presumption of survivorship.  Yet this was not always the case.  In his new article, “Death by Disaster: Anglo-American Presumptions, 1766-2006,” Thomas Gallanis explores the history of the Anglo-American law of simultaneous death from the eighteenth century to the present day.  A modern lawyer may be surprised to learn that, for much of its history, the common law made no effort to establish legal presumptions to deal with the problem of simultaneous death.  In addition, the statutory presumptions that were eventually adopted in England are quite different from their contemporary American counterparts. Continue reading "Inheritance and Presumptions"