Monthly Archives: September 2012

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Introducing the Court

Linda Greenhouse, The U.S. Supreme Court: A Very Short Introduction (Oxford University Press 2012).

The U.S. Supreme Court: A Very Short Introduction is indeed a very short book (far shorter than most law review articles), but it is no “Supreme Court for Dummies.” To the contrary, it is a sophisticated, yet accessible, addition to Oxford’s Very Short Introduction series.

This much the author’s identity gives away. Though she now teaches at Yale Law School and no longer covers the Supreme Court full time, the fabulous Linda Greenhouse remains one of Court’s most astute students. (And she continues to write an opinion column for The New York Times website, which should never be missed for its insights on the current Court.) Continue reading "Introducing the Court"


Good Things Come in Small Packages

Margaret H. Lemos, Interpretive Methodology and Delegations to Courts: Are “Common-Law Statutes” Different?, in Intellectual Property and the Common Law (Shyam Balganesh ed., Cambridge University Press, 2012).

Slightly off the mainstream of employment law scholarship is Margaret Lemos’s Interpretive Methodology and Delegations to Courts: Are “Common-Law Statutes” Different. This is a terrific, creative piece in only 14 pages. I am especially pleased to be able to highlight it on Jotwell because it will appear in a chapter entitled Intellectual Property And The Common Law (Shyam Balganesh ed., Cambridge University Press, 2012), and therefore might well be missed by most employment law types.

Professor Lemos starts with a commonplace of statutory interpretation, asks why, and comes up with answers that make one reconsider fundamental beliefs. What more could one ask?

The commonplace is that the normal methods of interpretation (whatever they happen to be at the time) are inapplicable when it comes to “common law statutes.” The paradigmatic example of such a statute is the Sherman Act, which is generally viewed as an enabling act — an authorization by Congress to the courts to create jurisprudence of “restraint of trade” largely unconstrained by common law precedents, textualist fussiness, or any need to discern legislative intent. In contrast, “normal” statutes, such as Title VII, are subject to a process of “statutory interpretation,” which these days requires an elaborate parsing of words in order to determine what the enacting Congress intended by the language it chose. Continue reading "Good Things Come in Small Packages"


Efforts to Expand Public Participation in Rulemakings Have Been a Failure

Cynthia Farina, Mary Newhart & Josiah Heid, Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, 2 Mich. J. Envtl. & Admin. L. (2012), available at SSRN.

In Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, Cynthia Farina, Mary Newhart, and Josiah Heidt explain why the initial efforts to encourage use of electronic media to broaden participation in rulemaking have not, and can not, work. The opening paragraph of the article describes and criticizes the reasoning process that has inspired the initial efforts:

Open government enthusiasts (among which we certainly count ourselves) seem prone to magical thinking—i.e., the building of if-then links that are not objectively justifiable. Open government magical thinking has several strands. If we give people the opportunity to participate, they will participate. If we alert people that government is making decisions important to them, they will engage with the decisionmaking process. If we make relevant information available, they will use that information to engage meaningfully. If we build it, they will come. If they come, we will get better government. (P. 1.) Continue reading "Efforts to Expand Public Participation in Rulemakings Have Been a Failure"


Erie, Swift, and Legal Positivism

Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 Wm. & Mary L. Rev. (forthcoming 2013) available at SSRN.

Philosophy of law can get lonely. Most law professors, not to mention lawyers, don’t care whether legal positivism or some kind of anti-positivist alternative is correct. It is surprising, therefore, that philosophers of law so rarely discuss Erie Railroad Co. v. Tompkins, since Erie suggests that the philosophy of law can be relevant to legal practice.

Legal positivism is identified, in part, by the social fact thesis: the law of a jurisdiction is fundamentally a matter of social facts concerning officials (or the general population) within the jurisdiction. In his opinion in Erie, Justice Brandeis rejected the regime of Swift v. Tyson, in part, because he thought Swift was incompatible with this thesis. In Swift, Justice Story opined about the common law prevailing in New York without deferring to the decisions of New York state courts. That sounds anti-positivist. Story apparently understood the common law to be binding in New York independently of social facts about New York (or, indeed, any other jurisdiction’s) officials. Continue reading "Erie, Swift, and Legal Positivism"


Estate Planning Is Better Than Xanax

Mark Glover, A Therapeutic Jurisprudential Framework of Estate Planning, 35 Seattle Univ. L. Rev. 427 (2012).

Sometimes a will is not just a will.  In Mark Glover’s recent article, he illuminates the psychological power that the law of wills and the process of estate planning can have.  Although I’ve long suspected many of us who work in the world of trusts and estates do so for psychological reasons (what drives us to attempt to control death?), I’ve never seen the connection between psychology and the law of death made so persuasively and concretely.

Professor Glover begins with a useful introduction to therapeutic jurisprudence.  It seems a gentle and unobtrusive movement; it largely suggests that, all other things being equal, the law should tilt toward rendering positive psychological consequences rather than negative ones.  Fair enough.  The model requires an analysis of the impact of laws on people, noting both the negative and positive psychological effect of the constructs law has created.  An analysis should lead to an adjustment in the law if the primary goals of the law could be accomplished in a way with better net psychological impact. Continue reading "Estate Planning Is Better Than Xanax"


New Light on the Old World and Commandeering

Jud Campbell, Commandeering and Constitutional Change, 122 Yale L. J. —, (forthcoming 2013) available at SSRN.

Some of the best constitutional history papers have a single conceptual move that makes you see the world differently.  Once you understand some previously unappreciated legal rule or piece of historical context, everything falls into place.  Jud Campbell’s forthcoming article in the Yale Law Journal, Commandeering and Constitutional Change, is just such a paper.

The topic is “commandeering”—i.e., whether the federal government can force state officers to execute federal law.  The Supreme Court has said that it cannot, because commandeering is inconsistent with state sovereignty.  Campbell’s central insight is this:  At the time of the Founding, commandeering was the Anti-Federalist position, not the Federalist position.  The Anti-Federalists thought that it was much better for state sovereignty to have federal law executed by their own officers.  They did not want a corps of officers in the states with federal paychecks and federal allegiance, and they were willing to accept commandeering, as opposed to voluntary cooperation, as the price of state execution. Continue reading "New Light on the Old World and Commandeering"


The Pain of Others

Imagine an interrogation chamber, twenty-five years from now. Rather than a dungeon or a prison cell, this space resembles the radiology suite of a hospital. A detainee is strapped to a gurney, electrodes attached to strategic parts of his body, rolled into a functional magnetic resonance imaging (fMRI) scanner, and there held immobile for the duration of the interrogation. Whenever he refuses to answer a question or gives an answer believed to be untruthful or incomplete, the detainee receives an electric shock. As the interrogation intensifies, so does the pain. Suddenly, however, the interrogation stops. The signal has been given from the observation room that the subject’s pain level has reached the threshold for “torture” established by the Geneva Convention.

What does it mean for criminal law, and for international humanitarian law, that we can see and measure the pain of others?

More generally, to what extent can scientific discoveries and technological advances solve (or dissolve) pressing moral debates? Continue reading "The Pain of Others"


Top-Ten Lists And Five-Star Reviews: Ratings, Rankings, And Creativity

James Grimmelmann, Three Theories of Copyright in Ratings, 14 Vand. J. Ent. & Tech. L. 851 (2012).

Until about a year ago, as the New York Times recently reported, Todd Rutherford had a successful business working with writers to help them market their self-published books on the Internet.  Rutherford’s previous career had involved more traditional publicity efforts — talking up his clients’ work in the hope that a reviewer at a newspaper or a blog would take notice.  But eventually he realized that it made more sense to “cut out the middleman and write the review himself.”  And so was born, a business that, depending on how much the author was willing to pay, would write one, twenty, or even fifty online reviews singing a book’s praises.  “Before he knew it,” the Times reported, “he was taking in $28,000 a month” and had to hire freelancers to keep up with the demand.  Rutherford may have been particularly up-front about the nature of his business practices, but he was by no means an outlier; one estimate is that about one-third of online reviews purporting to be by actual consumers are marketing schemes rather than genuine reviews.

Rutherford did not, apparently, assert a proprietary interest in his company’s reviews; in any event, the service later foundered when Google, and then Amazon, took notice.  But one might suggest that the inherently creative nature of the reviews – at least one of the freelancers admitted that she hadn’t actually read the books she “reviewed” – would put them squarely at the heart of copyright law’s scope of protectability.  If this is the case, does that suggest something troubling about ratings?  Or about copyright law more generally?

A recent article by James Grimmelmann seems to pose a simple question: Are ratings copyrightable?  But what makes this short piece especially thought-provoking is the way in which Prof. Grimmelmann uses this question as a way of interrogating various fundamental doctrines of copyright law: the idea/expression dichotomy, the originality and creativity requirements, and the nature of fact versus opinion among them. Continue reading "Top-Ten Lists And Five-Star Reviews: Ratings, Rankings, And Creativity"


Rosenkrantz and Guildenstern Write Contracts

Mark Weidemaier, Robert Scott, & Mitu Gulati, Origin Myths, Contracts, and the Hunt for Pari Passu, L. & Soc. Inquiry (forthcoming 2012) available at SSRN.

Every so often, an odd take on an obscure thing resonates in a big way. My first clue came when a colleague who writes about cyberlaw blasted around a paper about a silly old clause in government bonds to the entire business law listserv. Then plaintiffs, defendants, and amici on all sides cited to the same paper in briefs to the Second Circuit. Then a big-time finance journalist talked it up over dim sum. Then a bankruptcy friend said that I should review it on Jotwell. To be sure, I knew and liked the piece (and the authors1)  but what was in it for the general audience? It is about a clause with a Latin name and unknown meaning, collecting dust in contracts too-exotic for textbooks. The authors’ major finding is that fancy corporate lawyers who draft the clause like to describe themselves as bits of debris bobbing on the waves of history … even as they paddle while no one is looking. And yet, in their seemingly discrete tale about a technicality, Mark Weidemaier and colleagues strike some important chords.

Weidemaier, Scott, and Gulati write about the pari passu clause in sovereign debt contracts. The clause usually says, with minor permutations, that the debt is and will rank pari passu (in equal step) with others like it. For all anyone knew, pari passu lived a quiet life in bond boilerplate until an enterprising creditor used it ambush a Brussels magistrate, get an injunction, and collect money from an immune government.2  This caused a kerfuffle in both law and policy circles for upsetting the delicate balance between debt collection and sovereign immunity. To the policy people’s credit, they fixed the narrow problem right away with a statute barring similar injunctions in Belgium. But the contract clause remained and even grew in stature, all the while eminent lawyers in New York and London heaped scorn on pari passu and the Brussels court. Continue reading "Rosenkrantz and Guildenstern Write Contracts"


Tax Reform, Tax Expenditures, and the Role of the Tax Scholar

Edward D. Kleinbard, The Congress Within the Congress: How Tax Expenditures Distort Our Budget and Our Political Processes, 36 Ohio N.U. L. Rev. 1 (2010) available at SSRN.

One of the more dynamic figures on the current tax scene is Ed Kleinbard, a top-shelf New York tax lawyer who became Chief of Staff of the congressional Joint Tax Committee and then, in 2009, a full-time member of the USC tax faculty. Among the various topics he has addressed are international taxation, capital income taxation, and the taxation of financial services, all with a keen understanding of “what really happens” and (typically) constructive suggestions on how to make the system work better.

Perhaps the most theoretically salient aspect of Prof. Kleinbard’s scholarship is his characteristically irreverent approach to the problem of tax expenditures and tax reform. Like many historic assaults on traditional tax policy, it began with a speech, “Rethinking Tax Expenditures”, which Kleinbard delivered in 2008 and which was further developed in a subsequent lecture and a Joint Committee pamphlet. The essential point was that tax expenditure analysis, developed by Stanley Surrey and emphasizing the comparison of tax deductions, credits, etc. to direct spending measures, had to a large degree outlived its usefulness. The reasons for this included the difficulty, first noted by Boris Bittker in the 1960s, of defining a “normative” tax system from which deviations could be measured, and the wide variety of different provisions, ranging from business incentives to social welfare programs, that were covered by the tax expenditure label. In his speech and related publications, Kleinbard called for a more systematic typology of these provisions together with a more sophisticated analysis of the political forces that encouraged reliance on tax expenditures: a reliance which, the author noted, has proved largely resilient to traditional tax expenditure analysis and has, if anything, been encouraged by procedural reforms that make direct spending programs even more difficult. Continue reading "Tax Reform, Tax Expenditures, and the Role of the Tax Scholar"


The Uniform Sister-wife Act: Ensuring A Fair Share of the “Marital Pie ”

Adrienne D. Davis, Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 Colum. L. Rev. 1955 (2010).

Adrienne Davis’s recent article, Regulating Polygamy: Intimacy, Default Rules and Bargaining for Equality, is a must read for family law scholars, marriage equality scholars, as well as anyone interested in understanding the limits of contemporary analogies made between gay marriage and polygamy.

Davis begins her analysis by highlighting the fundamental difference between these two frequently compared marriage forms. She argues that gay marriage proponents’ commitment to dyadic two-person marriages makes their quest starkly different from polygamy proponents’ quest for social recognition of a marriage model that recognizes the affective and cooperative links between multiple marriage partners. Continue reading "The Uniform Sister-wife Act: Ensuring A Fair Share of the “Marital Pie ”"


Just a Little Bit of History Repeating

Peter Decherney, Hollywood’s Copyright Wars: From Edison to the Internet (Columbia University Press, 2012).

Peter Decherney has written an excellent book about the ways in which copyright laws have shaped and responded to the movie industry in the US.  Professor Decherney, who, not incidentally, was instrumental in achieving the first context-specific exemption for ripping DVDs (for use in teaching film studies, renewed in the 2009 cycle), has a sharp eye for the way the movie industry has exploited and reacted to law as part of its business models over time.  He suggests that the usual reaction of the industry to legal rulings has been self-regulation either to confirm or to avoid the formal law, depending on what works best for the people in charge.

History repeats, not just in the oft-told story of new media relying on unauthorized copying from old media—plays into films, for example—but also in the smaller details.  The relationship between technological measures designed to prevent copying and unauthorized copying, for example, goes back to the start of moviemaking, when different producers used film with different sprocket holes in order to preserve their control over their own preferred, often patented, technologies.  This incompatibility didn’t deter copying, though.  Instead, it led people who wanted to show movies to make their own copies to fit on their own equipment, just as technical protection measures still do today. Continue reading "Just a Little Bit of History Repeating"


On Becoming Relevant: The Role of Legal History in Legal Scholarship

Tabatha Abu El-Haj, Changing the People: Legal Regulation and American Democracy, 86 N.Y.U. L. Rev. 1 (2011), available at SSRN.

A while back over at the Legal History Blog, there was a brief discussion about the relevance of legal history to the legal academy.  On the heels of this discussion, Pierre Schlag posted a typically hilarious paper on SSRN about the faculty workshop that in part demonstrated the irrelevance of legal history, or at least the inability of legal scholars to access historians’ questions.  This is probably the main source of anxiety/frustration of legal historians who work in the legal academy, despite the (apparently “whiggish”) historical turn in constitutional scholarship.  History these days seems to be relevant to legal scholarship only in the context of debates over original meaning/intent.  What makes this particularly frustrating for historians is that the quality and quantity of legal history, produced by professionally-trained historians, has increased dramatically in recent years.  The last two decades, in particular, has witnessed the emergence of a bountiful body of scholarship, that is both theoretically and forensically rich, and that engages some of the biggest questions about law: its nature and function, and its relationship to various other macro-institutions such as society, the market, the polity, the state, and democracy.  (For starters, just look at the work by the contributing editors to the legal history section here.)  And yet we still find it difficult to engage our colleagues and convince them of the importance of our work; for many institutions we remain a “luxury.”  Historians have long worried about our declining ability to reach popular audiences.  Apparently, we are losing some colleagues too.

This is where I find Tabatha Abu El-Haj’s recent article heartening.  What struck me immediately about the article was how Abu El-Haj framed it.  In a seven-page introduction she spends two paragraphs on legal historiography; her main target is law and democracy scholarship.  Consciously or not, Abu El-Haj has offered an example of how to smooth the ground between historian and legal scholar.  Translating between disciplines, Elizabeth Mertz has told us, is a project fraught with misunderstanding.  But, perhaps because of her training in a law and society program, Abu El-Haj appears to have both the fluency and willingness to attempt an effective translation.  In this article, for example, she uses “the repertoire of democratic political practices” in the past to expose and undermine two major assumptions of modern law and democracy scholarship. Continue reading "On Becoming Relevant: The Role of Legal History in Legal Scholarship"


Negotiating Globalization’s Influence: The Indian Perspective

The importance of India as a site for activity and study with regard to the legal profession and globalization is underscored by the attention it currently generates in the legal and popular press1 But it also is an area characterized by uncertainty.  In fact, even as I write, there has been an additional development regarding the practice of law by foreign law firms: the Indian Supreme Court issued an interim order on July 4, 2012 that reinforced the uncertainty surrounding the authority for and confidence of global law firms to serve clients with interests in and related to India.  In light of this, I was delighted to learn that the subject had been taken on by Mihaela Papa and David Wilkins, both of Harvard Law School’s Program on the Legal Profession.  Their new article, “Globalization, Lawyers, and India:  Toward a Theoretical Synthesis of Globalization Studies and the Sociology of the Legal Profession,” promises to “draw[] together globalization literature with the scholarship on the sociology of the legal profession . . . [to] provide a new lens through which to analyze economic, political and social transformations occurring in the Indian legal profession.” (P.2)  My interest in the article was piqued not only by the topic, but also because Wilkins, the highly-regarded Professor of Law and chair of Harvard’s Program on the Legal Profession, is spearheading its GLEE project (Globalization, Lawyers, and Emerging Economies), which “investigates the impact of globalization on the corporate legal sector in major emerging economies and the effect of changes in this sector on other parts of the legal order, including legal education and the provision of legal services to underrepresented populations.”  This paper is an early product of GLEE and, as such, reveals promises of the larger study.

The article does not disappoint and offers a thoughtful addition to the growing body of work on globalization and the legal profession.  Papa and Wilkins begin by framing their investigation of India’s legal profession within the literature on globalization, and identify three “social processes commonly identified by globalization scholars in other areas [as] help[ful] to explain the changes currently taking place in the Indian legal profession:  economic globalization, globalization of knowledge, and globalization of governance.” (P.3)  In doing this, they offer a terminology for analysis that reveals the importance both of differentiating and connecting these three core processes. Continue reading "Negotiating Globalization’s Influence: The Indian Perspective"


One Engagement – Moral Theory of Political Reconciliation

Colleen Murphy, A Moral Theory of Political Reconciliation (Cambridge: Cambridge University Press, 2010).

For anyone interested in a critical, practical, and political exploration of reconciliation, Colleen Murphy’s book is a wonderful resource. It is a fast-paced and well-written book that compels the reader to keep going. And, it is useful in the everyday world.

In Canada, over the past thirty years, almost 600 indigenous women and girls have gone missing or have been slain.1 Between 2000 and 2008, there were 153 new cases. Most of the disappearances and deaths occurred in the western provinces in British Columbia, Alberta, Manitoba, and Saskatchewan.2  The majority of these women and girls were mothers. Some were students. Almost half of these cases remain unsolved. Time and time again, these women and girls are described as sex trade workers and addicts as if somehow that designation defines them all or explains them away. What is so disturbing is that their murders and disappearances seem to have become normalized – a part of Canada – but in the background or in the shadows. Continue reading "One Engagement – Moral Theory of Political Reconciliation"