Monthly Archives: October 2011
For over a century, the default job-termination rule in the private sector of the United States has been at-will employment, under which an employer can discharge its employees for any reason, good or bad, or for no reason at all. Although the common law as well as state and federal statutory law has chipped away at this default rule, at-will remains the default standard in every U.S. state except Montana, which has adopted a just-cause discharge standard. These default rules—at-will and just cause—have framed the legal debate over what role the law should play in regulating individual job security.
Professor Arnow-Richman astutely observes that this debate has been framed too narrowly. She notes that a “just cause rule provides only a weak cause of action to … those workers who can prove in court that they were fired for purely arbitrary reasons.” After all, job insecurity has been on the rise. The unemployment rate for the past three or four years has risen dramatically from 4.4 percent in December 2006 to a high of 10.1 percent in October 2009, with a current unemployment rate hovering at 9.1 percent. Given the “profound” changes in the employment paradigm over the past half-century, which includes a rise in short-term and contingent labor, and given that today’s workers are most likely to lose their job for economic reasons—a good reason—then perhaps we need “a fundamental shift in the goals and focus of employment termination law.” Continue reading "Just Notice: A Paradigm-Shifting Solution to Economic Dismissals"
The implications of determinism have long bedeviled our responsibility practices. If one starts with the premise that human beings are not “uncaused causers” but rather are comprised of beliefs, desires, values, and reasons that are themselves unchosen, then one begins to wonder how we can be responsible for our actions. Although compatibilists believe that responsibility is possible even if determinism is true, hard determinists believe that we are determined and that blame and punishment cannot be reconciled with that fact. Because individuals do not choose who and what they are, hard determinists maintain our current punishment practices are completely unjustified as criminals do not – indeed, cannot – deserve to be punished.
Enter Saul Smilanksy. In his marvelously playful and thoroughly convincing article, Smilansky questions exactly what will happen in a hard deterministic world. The answer may surprise you – punishment will have to give way to “funishment.” Continue reading "Does Hard Determinism Require “Funishment” Instead of Punishment?"
Should charitable trusts be perpetual and should such philanthropy benefit from generous tax subsidies? Professor Ray D. Madoff of Boston College Law School addresses what are perhaps the most fundamental questions of charitable trust law in a surprisingly accessible and engaging article. The article reads less like legal scholarship and more like a good story, perhaps owing to the fact that it relies upon her book, Immortality and the Law (Yale Univ. Press 2010).
Professor Madoff opens with a character sketch of Leona Helmsly, the “queen of mean,” who harnessed the tax benefits supporting philanthropy to fund an eight-billion-dollar trust for the benefit of dogs (in addition to funding a comfortable twelve-million-dollar fund for her own aggressive terrier). She explains the role of tax expenditures in supporting such donations and invites her reader to question whether the benefits from such a system are worth its costs. Continue reading "The Big Questions of Philanthropy Law in a Delightful Snack-Size Portion"
Scott Dodson, Hybridizing Jurisdiction
, 99 Calif. L. Rev. __
(forthcoming 2011), available on SSRN
; Scott Dodson, Mandatory Rules
, 61 Stan. L. Rev.
I recall quite clearly when, as a rookie law professor some years back, it occurred to me to wonder why we accorded so much weight to questions of jurisdiction. What was so special about making sure the amount in controversy really exceeded the statutory threshold or that the citizens, apparently from different states, were really so? Why regard jurisdiction as an especially favored defense; one that the courts must raise on their own motion and that the parties may mount at any time, even for the first time on appeal or when they have consented to the court’s jurisdiction or have invoked it themselves? What about the well-known waste of resources associated with jurisdictional failure? In my search for better understanding, I approached a senior colleague who explained that some things were just too well settled to question. After kicking the issue around for a while, I moved on to another project, concluding that jurisdiction was (as Mark Twain reportedly observed) too various for me.
Happily, at least for those who (like me) enjoy a good jurisdictional puzzle, others have decided to tackle the varieties of jurisdictional experience. In fact, over the past ten years or so, a group of mostly junior scholars have done much to broaden our understanding of the nature of jurisdiction. Instead of thinking of jurisdiction as a monolith, as I did, these scholars have taught us to think of jurisdiction more as a bundle of sticks (to borrow that construct from our property colleagues). Jurisdiction may have a number of different legal characteristics and not all of them need to apply to all issues that touch the power or ability of a court to adjudicate a claim. Merits and jurisdiction, though placed in separate boxes by jurisdiction casebooks, often blend in practice. Continue reading "Rethinking Jurisdictionality"
The GW Center for Law, Economics & Finance, under the leadership of the redoubtable Lisa Fairfax, last spring held its first Junior Faculty Business and Financial Law Workshop. I was one of the old fogies called in to do commentary. It was a successful event. The papers were strong and I was glad of the opportunity to acquaint myself with their authors.
One of the papers has loomed particularly large in the memory—From Graham-Leach-Bliley to Dodd-Frank: The Unfulfilled Promise of Section 23A of the Federal Reserve Act, by Professor Saule T. Omarova of North Carolina Law. Continue reading "Into the Heart of Darkness"
Milton C. Regan, Jr. Taxes and Death: The Rise and Demise of an American Law Firm, in
Austin Sarat, ed., Law Firms, Legal Culture, and Legal Practice,
52 Stud. in Law, Politics, and Society
107 (special issue) (2010), available at SSRN.
Milton Regan has chronicled the troubled times of law firms before in Eat What You Kill: The Fall of a Wall Street Lawyer (2004). On both occasions the firms appear to have undergone profound changes in culture that have eventually destabilized them and either wrought dire consequences for the lawyers or caused the death of the firm. Regan is a methodical obituarist.
He ascribes two underlying causes to these cultural shifts. One is the tenuous hold a law firm has on its share of the market. Lawyers might move taking clients with them or new specialist firms might aggressively shift into an established market drawing business away from others. The firm’s mix of top quality work may get diluted with less valued work. The second is the organizational dynamics of the law firm. Law firms operate under continuing centrifugal forces as practice groups proliferate and new rainmakers join putting management in the position of persuading and cajoling others to stay. Emmanuel Lazega refers to these factions as composing a Montesquieu structure of interlocking competing networks. And there is the everpresent problem of ethical fading—lawyers inured to certain liminal behaviours—when lawyers may no longer realize how their behaviour may be characterized. There are two absences in Regan’s analysis: one is the role of regulation and its interaction with ethics and the other is the rise and domination of the professional services firm. Continue reading "When Law Firms Forget Their Culture…"
Mary D. Fan, Beyond Budget-Cut Criminal Justice
, 90 N.C. L. Rev.
__ (2011-2012, forthcoming), available at SSRN
The effect of budget cuts on criminal justice systems seems obvious enough. Shrunken police departments result in low enforcement priorities (or non-enforcement) for non-violent offenses. Fiscally constrained prosecutorial resources mean that some offenses will be ignored rather than prosecuted. But what of prisons? Certainly many prison systems around the country have suffered similar fates as police departments and prosecutor’s offices: attempting to do the same (or more) with less. In many states, prisoners have faced even harsher conditions of confinement, including overcrowding, reduced medical attention, and fewer resources for substance abuse treatment and job training.
Yet as Mary D. Fan observes in her timely and thought-provoking Beyond Budget-Cut Criminal Justice, the economic downturn of the past few years has yielded an unexpected result: the emergence of certain penal reforms that were once thought to be politically impossible. Many criminal justice scholars have lamented the steady rise of incarceration rates in the United States; we imprison people at a higher rate than any other country in the world. This “incarceration stagnation,” as Fan puts it, continues despite a well-documented crime drop in the 1990s, evidence of diminishing gains as incarceration rates continue upward, and public opinion polls suggesting that a primary focus on incapacitation (rather than rehabilitation and alternatives to imprisonment) may be misguided. Public officials have typically avoided serious solutions to the incarceration crisis, for fear of appearing “soft on crime,” and suffering the electoral consequences. The recent recession, however, has created opportunities for legislators facing budget emergencies to explore and propose a variety of reforms. Continue reading "Can Fiscal Crises Change Our Incarceration Problem? Maybe."
Last fall, the New York Times reported that in the halls of academia, studying culture was no longer, like Lord Voldemort, “that which must not be named.” Culture was officially back on the poverty research agenda. According to the story, much of this newfound respectability had come courtesy of William Julius Wilson, the Harvard scholar who has long argued on both culture and structure fronts. In 2009, Wilson published a book, More Than Just Race, in which he marshaled the best of sociological research to argue that both structural barriers and cultural impediments keep poor people of color trapped in poverty. In the end, Wilson concluded that the structures of racism and the globalizing economy matter far more than the cultural behavior that conservatives love to blame. But in the essay that this review focuses on, Wilson focuses less on which trumps which. Instead, he makes a strong case for a “unified framework” to integrate both structure and culture.
If I might put the argument in a stylized form, Wilson shows in essence that structure and culture are related to each other in a positive feedback loop, in which structure shapes culture, and culture in turn shapes and contributes to structure. So for example, Wilson points out the way in which segregation and a globalizing economy produce informal illegal economies, in which the “code of the street” and distrust of the police become commonplace cultural norms as rational responses to illegality and isolation. These codes of the street and their accompanying frameworks of meaning—distrust of the police, for example–contribute in turn to the perpetuation of segregation and diminished access to jobs. And the cycle goes round and round. In integrating structure and culture into one analytical framework, Wilson continues to make a strong case (as he has for twenty years) that the study of culture should enjoy full respectability in the academy. It seems left academics are finally listening. Continue reading "Structure and/or Culture"
Martha T. McCluskey, How the ‘Unintended Consequences’ Story Promotes Unjust Intent and Impact
, 21 La Raza L.J. __
(Forthcoming 2011), available at SSRN
One of the more unnerving aspects of the recent financial crisis is the speedy recovery of those large financial firms that survived the crash. Gifted with eye-watering sums of virtually free credit and liberated from the ‘toxic’ assets that their financial engineering created, global financial firms such as Goldman Sachs reported higher than ever earnings in 2009 and 2010. Elsewhere in the economy, the prospects of recovery are remote and receding. The reframing of the crisis as ‘fiscal’ rather than ‘financial’ has forced sovereign countries to take out unsustainable loans in order to appease their bondholders. Jobs, pensions, and public services have been slashed in the US and across Europe. US homes are being lost to foreclosures at an extraordinary rate (some reports estimating up to 10-13 million foreclosures) as the consequences of the crisis continue to rip through the economy. Compounding the direct dispossession of those whose homes are taken, foreclosure actions blight entire neighborhoods, exerting yet more pressure on whatever little equity in their homes residents may have sheltered from the predatory lenders.
The juxtaposition of business as usual on Wall Street and in the City of London with the destruction of homes, livelihoods and other means of economic security of workers and the unwaged, pensioners and children in the US and Europe shows that neoliberalism’s project of robbing the poor to give to the rich has survived the crisis, gathering strength in its wake. Martha McCluskey’s illuminating working paper, How the ‘Unintended Consequences’ Story Promotes Unjust Intent and Impact, analyses the persistence of upward redistribution in policy making and asks how one of its key supporting narratives can be resisted. The paper provides an excellent overview of the crisis for equality theorists who are not specialists in the intricacies of neoliberal “financialization”. It explains some of the decisions within financial firms–and by some regulators–that created the crisis; and vividly illustrates the devastating impact of those decisions on US communities, particularly Communities of Colour. McCluskey uses the example of the financial crisis effectively to illustrate the argument that the “unintended consequences” narratives in policy discussions about egalitarian regulation serves to rationalize the legal underpinnings of upwardly redistributive measures and perpetuates “the ideology that law is powerless to disrupt a naturalized order of inequality outside of law” (P. 9). Continue reading "Home Truths About Unintended Consequences"
Julie E. Cohen, Copyright as Property in the Post-Industrial Economy: A Research Agenda
, 2011 Wisc. L. Rev.
141, available at SSRN
Copyright law in the United States has traditionally been justified in both economic and property-based terms. In order to incentivize the socially optimal amount of creativity, the story goes, we grant to authors a certain bundle of rights over the work they create for a limited (although significant) period of time. Without this incentive, copyists, who need only to recoup the cost of copying and not the cost of production, would undermine the creator’s opportunity to profit from the work. The story thus assumes that commercial exploitation of creative work is the natural (and desired) end of the creative process and that some form of legal entitlement is needed as a means to that end. The focus thus shifts to the work itself: If the work demonstrates the required originality and modicum of creativity, and is fixed in a tangible medium of expression, it qualifies for copyright protection, regardless of the truth of the incentive narrative.
The longevity of the economic narrative derives, in part, from the identity of the players in the early copyright debates, in which printers and stationers were the primary agitators for increased rights over creative works and individual authors merely useful characters to make more human the arguments. But as various commentators have noted over the years, the economic story can be told only by some creators. We can assume, for example, that if Disney or Random House or Atlantic Records were not able to turn a profit from the creative works they bring to market, they would soon be out of the business. But for others, creativity stories are not tales of buying and selling; they are tales of emotion, passion, and inspiration, of creating without being motivated by commercial exploitation. Such artists are not completely indifferent to how their work is used – they might, for example, very much care about getting credit for their work so as to build their reputational, if not economic, capital. But the traditional copyright narrative, which assumes commercialization, does not map well onto the motivations and interests that these artists demonstrate. We might, therefore, ask whether the Constitution’s goal of “promot[ing] the progress of Science” would be better achieved by focusing less on whether a work is copyrightable and more on the interests of those involved in distributing that work to the public. Continue reading "Copyright’s New Narrative"
Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space
, 125 Harv. L. Rev.
____ (Forthcoming 2012), available at SSRN
Areas of fragmented and overlapping delegations of power to administrative agencies are common today. For example, fifteen federal agencies play roles in the American food safety arena. Similarly, twelve different agencies deal with exports, and numerous agencies regulate the financial sector, including the SEC, CFTC, OCC, FHA, FDIC, OTS and the Federal Reserve. In addition, as President Obama recently quipped during a State of the Union Address, we have one agency (the Department of the Interior) that is in charge of salmon while they are in fresh water, but a different one (the Department of Commerce) that handles them when they are in saltwater.
Despite the prevalence of these sorts of overlapping delegations in the regulatory arena, legal scholars generally have approached administrative law through a single-agency lens. In a forthcoming Harvard Law Review article titled Agency Coordination in Shared Regulatory Space, Professors Jody Freeman and Jim Rossi seek to change this picture. Specifically, Professors Freeman and Rossi depart from what they call the “single-agency focus that is so foundational to administrative law” by offering the “first comprehensive discussion in the legal literature of the problem of fragmented and overlapping delegations of power by Congress to administrative agencies.” Continue reading "Coordinating Agencies"
The great recession has hit state and local governments nationwide very hard. Many have turned to the unions that represent their employees for wage, benefits and work rule concessions in an effort to reduce expenditures. When they have been unable to secure such concessions, they have resorted to unilateral action abrogating their collective bargaining agreements. Their actions have taken many forms. Some are redressable under the contract’s grievance and arbitration procedures or in unfair labor practice proceedings before the state public sector labor relations agency. However, in many cases such redress is not available, leaving the only avenue an action alleging an unconstitutional impairment of contract.
Stephen Befort‘s article, “Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause,” tackles head on the extremely important and timely topic of when unilateral modifications of public employee collective bargaining agreements in response to fiscal crises constitute an unconstitutional impairment of contract. Befort first provides a brief background on the development of public sector labor law and public sector collective bargaining. He observes that where unilateral modification of public employees’ collective bargaining agreements is accomplished through legislation, public sector labor relations acts are of little utility because the legislature is not the employer. Consequently, the only generally available avenue of contest is under the Contract Clause of the Constitution. Befort then provides useful and detailed background to the development of Contract Clause jurisprudence in general. Continue reading "The Impairment of Public Sector Collective Bargaining Agreements"
David Strauss has written an elegant and compelling book, the distillation of his work on constitutional interpretation over the last decade or more. His argument is at once positive and normative. Strauss argues that most U.S. constitutional interpretation – and some of the most important and foundational of the Supreme Court’s constitutional decisions – can only be understood as a form of common law adjudication, developed over time based on practice and precedent far more than on constitutional text. As a normative matter, Strauss argues that living constitutionalism, developed and constrained through the methods of common law adjudication, is a superior approach to interpreting the Constitution than is originalism. Those not familiar with Strauss’ work should read the book; those who are will still enjoy the concision and insight with which his prior articles have been distilled.
The first two chapters include his attack on originalism and his defense of the virtues of common law constitutional adjudication. The attack on originalism synthesizes critiques of the impossibility, and undesirability, of the kind of “constraint” imposed by originalism’s commitment to interpreting in light of specific original understandings, including the difficulty of reconstruction, the challenges of “translation” and the democratic challenge of giving controlling force to the original understandings of an instrument intended for present governance. Moderate originalism, he argues, in its appeal to general principles diminishes the key feature of constraint that originalism’s proponents emphasize. Continue reading "Constitutional Change and Living Trees"