Monthly Archives: March 2012

Defending Freedom of the Press as an Institutional Guarantee: A Guide in Dealing With Historical and Jurisprudential Obstacle Courses

Randall P. Bezanson, Whither Freedom of the Press?, Iowa L. Rev.  (forthcoming), available at SSRN.

Randy Bezanson’s recent short piece, Whither Freedom of the Press?, is an instructive example of how to get around an obstacle—two obstacles, really. The first is the Supreme Court’s opinion in Citizens United v. FEC, 130 S. Ct. 876 (2010). In the course of striking down a law prohibiting the direct use of corporate or union treasury funds for electioneering communications, the Court stated that “the institutional press has [no] constitutional privilege beyond that of other speakers.”

The second obstacle is actually more formidable. In a recent article in the University of Pennslyvania Law Review, Freedom of the Press as an Industry, or for the Press as a Technology?: From the Framing to Today, Eugene Volokh takes on the view of some writers, including Justice Stevens in his dissent in Citizens United, that the Press Clause of the First Amendment provides some form of protection to the press as an “industry” or institution. Volokh argues that the Press Clause protects the press only “as a technology”—that it secures only “the right of every person to use communications technology,” and grants no special privileges to the professional or institutional press as such. Skillfully marshaling extensive historical sources, Volokh concludes that the evidence “point[s] powerfully toward the press-as-technology reading” of the Press Clause, “under which all users of mass communications technologies have the same freedom of the press” and journalists qua journalists have no unique privileges. Continue reading "Defending Freedom of the Press as an Institutional Guarantee: A Guide in Dealing With Historical and Jurisprudential Obstacle Courses"

Protecting the True Objects of Decedent’s Bounty—Pets Included

Frances Foster, Should Pets Inherit?, 63 Fla. L. Rev. 802 (2011).

I have never had a pet (yes, very sad), so I must admit that in my Estates & Trusts course, I covered the cases involving gifts to pets with some amusement.  After reading Frances Foster’s provocative article, Should Pets Inherit?, I will never teach those cases in quite the same way again.  Building on many scholars’ (including her own) critiques of U.S. inheritance law’s focus on relationships based on blood, adoption, or marriage to the exclusion on those based on caregiving and affection, Professor Foster expands the universe of beings who should inherit to include non-human family members—pets.

Professor Foster briefly summarizes the rich literature showing that U.S. inheritance law excludes many people Americans consider nearest and dearest to them, including nonmarital partners, friends, and individuals with whom they share a de facto parent-child relationship.  As a result, inheritance law often conflicts with and defeats decedents’ wishes to provide for individuals with whom they shared affectionate and supportive relationships.  She points out that the law’s exaltation of family status over affection and support is so entrenched that attempts to give property to persons the law does not consider “family” are deemed “unnatural.”  In my opinion, many would find few bequests more “unnatural” than dispositions to a pet, which the law deems to be property and as such, cannot inherit under the common law.  As Professor Foster points out, bequests to a pet may be used as evidence of testamentary incapacity. After all, who in their right mind would leave property to a pet?  However, Professor Foster persuasively demonstrates that given the vast majority of pet owners’ inclusion of their pets in their definition of family and their desire to provide for their pets after they pass, the law should allow and facilitate inheritance by pets. Continue reading "Protecting the True Objects of Decedent’s Bounty—Pets Included"

Interpreting the Federal Rules of Civil Procedure

David Marcus, When Rules are Rules: The Federal Rules of Civil Procedure and Institutions in Legal Interpretation, __ Utah L. Rev. __ (forthcoming), available on SSRN.

The debate over how best to interpret legal text is not limited to the Constitution and controversial statutes, although the expansive literature about interpretation in those contexts might lead one to think that is the case.  There are plenty of other legal texts to argue about, and David Marcus’s article, When Rules are Rules:  The Federal Rules of Civil Procedure and Institutions in Legal Interpretation, focuses on none other than the Federal Rules of Civil Procedure.  Shocking as it may seem (maybe because we are all kicking ourselves that we did not notice this first), there is not much written about how judges should interpret the Rules.1 Moreover, recent Supreme Court decisions, namely Bell Atlantic v. Twombly and Ashcroft v. Iqbal, demonstrate that reasonable people can disagree about how best to interpret even the most basic and simply-stated Rules.  What’s missing is a unified theory of how judges should interpret the Federal Rules, and Marcus’s article is here to save the day.

Marcus puts forward a theory of rule interpretation that respects the unique nature of how the Federal Rules of Civil Procedure came to be and how they continue to evolve.  The old adage of a parent loving each of her children equally—and appreciating their differences—applies here.  The rules are one of many “textual” children, and they cannot be interpreted as an agency regulation or a constitutional provision might be. Continue reading "Interpreting the Federal Rules of Civil Procedure"

A Drive for Efficiency May Not Drive Inefficient Discrimination From the Marketplace

Lesley Wexler, Wal-Mart Matters, 46 Wake Forest L. Rev. 95 (2011).

In Wal-Mart Matters, 46 Wake Forest L. Rev. 95 (2011), Lesley Wexler challenges the law and economic orthodoxy that suggests that inefficient employment discrimination tends to be driven out of the marketplace.  The typical rationale is that employers who discriminate will have higher costs of production based on their inefficient discrimination and will necessarily be less competitive than their competitors.  Professor Wexler describes how systematic sexual discrimination can exist indefinitely even when an employer’s successful business model focuses almost exclusively on efficiency and providing the lowest cost goods in the marketpalce.  Wal-Mart Matters is an article that I like lots because it discusses employment discrimination and law and economics in challenging a point of orthodoxy and explaining why the orthodoxy may not be convincing or correct in a particular situation.  To be clear, the article is not an exhaustive treatment of the issues and does not appear intended to be.  However, it makes the reader think  about how a theoretical point regarding markets may not work as well as expected in a real-world market.  The subject matter is of particular interest to me because I teach employment discrimination and have taught law and economics.  However, the article ought to be of interest to a wide variety of law professors and legal commentators.

The article is timely, but its title is a little unfortunate.  Given the article’s timing, its title may suggest to some that it is about the Wal-Mart litigation that was decided by the Supreme Court this past year.  Though Wal-Mart and its practices are at the core of this article, the litigation is only a point of departure.  Rather than analyze the substance of the class action against Wal-Mart, Professor Wexler asks that the reader assume that the allegations of sex discrimination in pay and promotion that are at the core of the litigation are supported or supportable.  Professor Wexler then examines how a widespread practice of seemingly irrational sex discrimination could exist at Wal-Mart given law and economics principles that claim that irrational discrimination will be driven out of the marketplace and given that Wal-Mart appears to follow a practice that focuses on efficiency as a business model. Continue reading "A Drive for Efficiency May Not Drive Inefficient Discrimination From the Marketplace"

In Praise of a Comparativist Rubric for Administrative Law

Francesca  Bignami, From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law, 59 Am. J. Comp. L. 859 (2011).

Administrative law scholars in the United States who seek to borrow ideas from approaches tried by other liberal democracies face a substantial problem: each country’s government is structured differently.  There is no recognized metric for evaluating how administrative law will play out in a state with a different structure of government. The lack of such a metric is especially troubling as governments seek to take advantage of flexible regulatory approaches that harness the knowledge and incentives of stakeholders in the regulatory process.  A fascinating article, “From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law,” by Professor Francesca Bignami, provides a first stab at providing such a metric.

Professor Bignami criticizes the traditional characterization of administrative law, as “organization of public administration” and “judicial review of administrative action,” for its inability to “engage with contemporary debates on the desirability and future possibilities of administrative law.”  To surmount this inability, Bignami begins to “develop . . . a comparative framework by recasting administrative law as an accountability network of rules and procedures through which civil servants are embedded in their liberal democratic societies.”Bignami breaks down the concepts of accountability network into four sets of relations: those between civil servants and elected officials, organized interests, the courts and the general public, respectively.  The accountability network description is “well equipped to capture such phenomena in administrative governance as: the political objectives of the bureaucracy; the role of organized interests in providing new mechanisms of regulatory control, and the ability of the public to hold the bureaucracy accountable. Continue reading "In Praise of a Comparativist Rubric for Administrative Law"

Tinkering with the Machinery of Justice

Stephanos Bibas, The Machinery of Criminal Justice (Oxford Univ. Press, 2012).

Ordinarily I would use space in Jotwell to bring attention to up-and-coming scholars. The author whose work I praise here, however – Stephanos Bibas – arrived long ago. But Bibas’s new book, The Machinery of Criminal Justice, is so humane and thoughtful an analysis of the reforms needed in our criminal justice system that I find myself drawn to giving him still more good press. I do not agree with every jot-and-tittle of his analysis nor every recommendation for reform that he makes. But his vision is a powerful one, he defends it with clarity and grace, and every idea he expresses is capable of starting an important conversation. Bibas’s argument turns on three central ideas: (1) the system pretends to a mechanistic efficiency deaf to the emotions and meaningful expressions that undergird any sound system of criminal justice; (2) lawyers and other experts have hijacked the system to serve their own needs, displacing defendants, victims, and even judges; and (3) the political forces at work are skewed toward undue penal harshness and elite control rather than adequately balanced by informed lay participation.

Emotions

Bibas argues that our system undervalues positive emotions and distorts negative ones. The positive emotions that are undervalued are remorse, apology, and forgiveness. The negative ones that are distorted are the retributive emotions. Continue reading "Tinkering with the Machinery of Justice"

Heroes, Tragedies, and Our Failed Community

Robin West, Tragic Rights: The Rights Critique in the Age of Obama, 53 Wm. & Mary L. Rev. 713 (2011), available at SSRN.

No one talks about what is wrong with rights anymore.  Rights critique, suggests Robin West, has been on a sharp decline since the 1990s and has been particularly muted under current American administration.  This silence, West argues, is both strange and undesirable.

While she offers some hypotheses to explain these observations, West’s focus is not a post-mortem on the critical rights movement of the 1980s.  Instead, and put simply, her aim is to reinvigorate the rights critique in light of both current political, social and economic context and the ways in which rights claims are currently being configured in response to this context. Continue reading "Heroes, Tragedies, and Our Failed Community"

Repeal the Grantor Trust Rules

Mark L. Ascher, The Grantor Trust Rules Should Be Repealed, 96 Iowa L. Rev. 885 (2011).

“It is not a matter of the cure being worse than the disease.  It is rather, that the cure has become the disease.”1  This line, written by Leo Schmolka, is quoted in Mark Ascher’s recently published article calling for repeal of (most of) the grantor trust rules.  I quote Schmolka here too because he so pithily captures “the irony of using anti-abuse rules to abuse the tax system.”  The tax avoidance vehicle of choice is known as an “intentionally defective grantor trust” or “IDGT” (sardonically pronounced “I dig it”).  As noted by Ascher, “even their name seethes with irony.”

Ascher’s article makes three main points:  1) the grantor trust rules are obsolete; 2) their continued existence leads to significant erosion of our income and transfer tax bases; and 3) as a result the grantor trust rules (or at least most of them) should be repealed.  To be sure, most of these points are not new, and indeed, two other recent articles cover similar ground.2  However, Ascher’s is by far the most comprehensive and, in my opinion, persuasive of the three. Continue reading "Repeal the Grantor Trust Rules"

The Law of Aging

Hendrik Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age (Harvard University Press, 2012).

Modern medicine, the rise of the welfare state, and profound cultural shifts have transformed old age in the industrialized world. Or have they? Hendrik Hartog’s history of inheritance disputes from 1850 to 1950 excavates a world both familiar and foreign.  Then, older people who dreaded loneliness and destitution promised generous bequests of property in exchange for care and solicitude from younger adults. In turn, younger adults sacrificed opportunities—independence, mobility, marriage, fortune-seeking—to remain close to home and to provide arduous and intimate care in the hope of recompense, often in the form of real estate.

Disappointment, resentment, and recrimination predictably ensued—at least in many of the cases Hartog describes. He takes us deep into the lives of middle-class New Jersey families, as revealed in trial transcripts from law suits brought by frustrated would-be heirs. Hartog first explores the world of the aging adults who attempted—with varying degrees of calculation and desperation—to exercise control over their “retirement” years, particularly their anticipated physical and mental decline. Continue reading "The Law of Aging"

Organizational, Not transactional, Legal Engineers

Jennifer Arlen, The Failure of Organizational Sentencing Guidelines, 66 U. Miami L. Rev. 321 (2012), available at SSRN.

Many are claiming that the market for legal talent is undergoing fundamental transformation.  If so, there are undoubtedly multiple causes, at the least because the legal market is a highly differentiated one.  In the individual and personal plight sector, user-friendly consumer interfaces and legislative and judicial restrictions on access to justice are of importance.  In the corporate sector, intelligent search engines, outsourcing and the internalization of legal work are of importance.

Today’s changes in the corporate sector of the legal profession, in my opinion, mirror the changes in the engineering profession at the beginning of the last century.  The basic story is that engineering was once a liberal profession, marked by engineers working in engineering firms. Now, although engineering firms still exist, by and large, engineers work inside corporations.  In this transformation, engineers, like lawyers today, lost the monopoly rents which they were able to extract in market transactions between professional firms, which largely controlled elite expertise, and corporate organizations. Continue reading "Organizational, Not transactional, Legal Engineers"

Placing British Employment Law In Context

Hugh Collins, Employment Law (2d ed. 2010).

It is probably fair to generalize that the best American legal scholarship in the fields of labor, employment, and employment discrimination law has found little inspiration in the study of comparative law. Hugh Collins’s analytic and insightful but succinct overview of British employment law — republished in 2010 in a second edition to account for significant developments in response to European Union law — should teach any perceptive American reader that this need not be the case. This two hundred sixty page volume demonstrates that studying how other developed countries have addressed common issues presented by the employment relationship not only can help define practical and conceptual problems for American law to address but also can help spark creative thinking about solutions.

Professor Collins, who has served as general editor of the Modern Law Review and twice successfully led the law department at the London School of Economics, places the employment law of Britain in both an historical and political-social context. The historical context includes our common nineteenth century liberal tradition of free contracting and our common twentieth century response of industrial pluralism to the “commodification” of labor and the resultant threats to economic and political stability. The political-social context includes the sometimes divergent influences from America and Europe, with the latter becoming more dominant through European Union directives. Continue reading "Placing British Employment Law In Context"

Tax Ethics: Advice from the Past

Michael Hatfield, Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties, and Advice, 12 Fl. Tax Rev. 1 (2012), available at SSRN.

Major cases in the news from tax shelter promotions to corporate accounting abuses have once again put the ethical obligations of  lawyers, and specifically tax lawyers, onto center stage (or at least in the wings).  Congress passed increased standards for return preparers and the Treasury has followed with increased preparer standards in Circular 230.

It is within this framework that I read Professor Michael Hatfield’s article, which examines the ethical debate and discussions by some of the leading scholars and practitioners during the 40s, 50s, and 60s.  These tax lawyers were at the forefront of discussions regarding the modern income tax.  Professor Hatfield’s historical examination provides us with insight into what they were thinking, and provides us with food for thought as we examine modern ethical problems. Professor Hatfield’s point is just that, to provide us with food for thought.  He does not attempt to draw conclusions from this debate regarding what we should do now.  Instead, he carefully and thoroughly outlines the debate at the time and leaves us with opportunity to draw our own lessons from the analysis.  What is clear from the article is that the leading tax lawyers of the time were as conflicted as we are today on many issues, especially the question whether tax lawyers had a special “duty to the system.”  Interestingly, however, they were almost universal in their agreement on two major points: (1) that the payment of taxes was a civic duty, one which had a strong patriotic element, and (2) tax lawyers had a duty to be proponents, reformers, and educators about the tax system. Continue reading "Tax Ethics: Advice from the Past"

State Interpreters

Oral arguments on the constitutionality of the Patient Protection and Affordable Care Act will consume three days of the Supreme Court’s schedule, an unusual assignment of the Court’s time. But the constitutional challenge, assuming it fails, will be just the first act in a long performance.  Abbe Gluck’s tremendous essay recently published in the Yale Law Journal takes up some of the fascinating potential statutory interpretation questions waiting in the wings.

These questions arise from the mix of institutional design choices involving the states in the Act (and in other legislation). The choices include provisions implemented only by the federal government, provisions implemented only by the states, and, of particular interest, provisions involving both sets of actors. Gluck trains on this last category, noting that the Act “appears to deploy the [state-federal] relationship strategically – as a way to expand the federal presence into several key areas of traditional state control – and somewhat paradoxically, also expressively, as a way to acknowledge the states’ traditional authority over health insurance.” (pp. 584-5) Continue reading "State Interpreters"