Yearly Archives: 2013

Jotwell Winter Break 2013

Jotwell is taking a short winter break. Posting will resume Monday, January 6, 2014.

Happy Holidays! Thank you for reading, and for your support.

 
 

Natural Law and Its History

John Finnis, Natural Law Theory: Its Past and Its Present, 57 Am. J. Juris. 81 (2012).

The image of natural law to the modern mind is one in which certain actions, states-of-affairs, and “values,” are represented as being right or wrong, reasonable or unreasonable, depending upon whether they can claim to be in accord with or contrary to nature. Though apparently hard to shift, this image, as John Finnis and others have pointed out on numerous occasions, is misconceived: the orientation of thinking running rather from what is reasonable and right to what is (therefore) in accord with nature.

The matter is dealt with in some detail in the second chapter of Natural Law and Natural Rights, and the rest of that book constitutes an example precisely of arguments of practical reasonableness (a reworking of Aquinas’s prudentia) as the ground of a theory of “natural law” (i.e. a fully critical basis for evaluation of human acts and institutions, and the subject-matter of the social sciences). It is taken up again, in much greater detail, in Finnis’s book on Aquinas, in the context of Aquinas’s own account (itself quite clear on this point) of human choosing and deliberating. The present essay situates the discussion within a much broader historical context, ranging from the treatment of “nature” in Platonic and Sophist philosophy through to the positivism of Hart and Austin. Just as the idea of “natural law” must be logically separated from the beliefs and opinions of those who assert its existence (only the latter having a temporality and history), so the skeptical, nihilist or agnostic assertion that there is no moral law, but only the satisfactions of “animal” nature (subrational emotions, desires to which reason is the ingenious servant), represents a single permanent idea which plays out in numerous different forms in different times and places. How could it be otherwise? For the skepticism is directed precisely at reason’s governance, its ability to identify and work its way towards those human goods that stand at the center of natural law thinking. In one long argument, the essay unpicks, steadily and relentlessly, the confusions that underpin the strand of skeptical thinking that unites the Sophists’ outlook to Hart’s own commitment to legal positivism. Continue reading "Natural Law and Its History"

 
 

Does Becoming a Party to the International Criminal Court (ICC) Have a Positive Effect on Regulating Violence Against Women in Domestic Law?

Fionnuala D. Ní Aoláin, Gendered Harms and Their Interface with International Criminal Law: Norms, Challenges and Domestication, Minnesota Legal Studies Research Paper No. 13-19 (2013), available at SSRN.

Expanding legal definitions and the enforcement of rape and domestic violence laws have been a major focus of the feminist agenda for decades, not only in the United States but also around the world. While we tend to think of such crimes in national terms, Fionnuala Ní Aoláin, currently the Dorsey and Whitney Professor of Law at the University of Minnesota Law School and Co-Director of the University of Ulster Transitional Justice Institute in Northern Ireland, looks at these crimes more broadly to suggest that developing international criminal norms about rape may have a positive impact on developing more robust domestic law. Professor Ní Aoláin’s work in the fields of human rights and sex-based violence in times of war has been widely recognized, and the Irish government has twice nominated her to the European Court of Human Rights.

This working paper does not analyze legal issues in the United States. However, the use of international human rights law to affect a paradigm shift in analyzing domestic violence cases and other gendered crimes such as trafficking is a hot topic in the United States since the 2011 decision in Jessica Lenahan (Gonzales) v. United States by the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), which held the U.S. responsible for human rights violations in domestic violence settings. The United States government participated in that litigation pursuant to our ratification of the American Declaration of the Rights and Duties of Man (American Declaration). While we have not signed on to the International Criminal Court, which is the focus of Professor Ní Aoláin’s current article, her insightful analysis confirms that efforts to encourage signing and ratification of international criminal and human rights treaties should remain a priority here for those who hope to promote domestic law reform punishing all forms of violence against women. Continue reading "Does Becoming a Party to the International Criminal Court (ICC) Have a Positive Effect on Regulating Violence Against Women in Domestic Law?"

 
 

Fair Use in Context

Michael C. Donaldson, Refuge From The Storm: A Fair Use Safe Harbor For Non-Fiction Works, 59 J. Copyright Soc’y U.S.A. 477 (2012), available at SSRN.

When is a use of a copyrighted work a fair use? This issue has grown in significance with the increase in the economic value of copyrighted works and in the ways in which users can distribute, rework, or otherwise borrow from copyrighted works. The fair-use inquiry is contextual, formally focusing on the nature and purpose of a use, the creative nature of the work, the amount of the work used, and the effect of the use on the copyright owner’s ability to economically exploit the work. For some, fair use’s attention to context renders it an unreliable ally for the diligent user.

However, a number of commentators, including this one,1 have argued that the multifactor inquiry does not lead truly to “case-by-case” adjudication. Instead, the principles of fair use protect certain identifiable patterns or bundles of uses with soft rules while remaining sufficiently open textured to balance interests implicated by new or emerging patterns of use. Others have gone further. My colleagues Peter Jaszi and Patricia Aufderheide have worked with creative communities to identify and articulate best practices in fair use in the context of their patterns of use as described in their recent book Reclaiming Fair Use. Continue reading "Fair Use in Context"

 
 

Don’t Get No Respect: Defining the Field of Public Health Law

Micah L. Berman, Defining the Field of Public Health Law, 15 DePaul J. Health Care L. (forthcoming 2014), available at SSRN.

In a methodical, comprehensive exposition, Micah Berman’s forthcoming article considers why public health law remains the Rodney Dangerfield of the legal academy. As a member of a working group of scholars and practitioners who share the mission of advancing the prominence of public health law, I am well versed on the issue but was enlightened by Berman’s insights. I especially appreciated that he began by begging his own question: What difference does it make to recognize public health law (or any other area of law, for that matter) as a “field”? Why it matters, he answers, is respect: For an area of law to be recognized as “field” is to be in the mix of law school hiring priorities, to headline symposia and conferences, and generally to be taken seriously within the academy and practicing bench and bar.

Berman’s article is exceptionally well organized, stepping through difficult foundational questions, clearly explaining the paradigms, testing those paradigms with other examples, and engaging the leading scholarship on the problem presented. His roadmap proceeds by: (1) Defining a field of law; (2) defining public health law; and (3) evaluating whether public health law is a field of law. Continue reading "Don’t Get No Respect: Defining the Field of Public Health Law"

 
 

The Costs of Imprisoning Nonpaying Parents

Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families, 15 J. of Gender, Race & Justice 617 (2012), available at SSRN.

There are well-known problems with child support, the court-ordered financial obligations that non-custodial parents—whether divorced or separated from the other parent, or never married to that parent—owe to custodial parents for the care of the children. It has been long documented that such support awards are often too low, and are far too frequently under-paid or not paid at all. Over the last few decades, a panoply of federal, state, and interstate laws and procedures have been created to try to increase the enforcement of support awards and to increase the amount of money reaching children and their caregivers. By most accounts, these efforts have been successful, at least to some degree. However, legal reforms often have unintended consequences, and, as often as not, these negative consequences often affect groups that are already disadvantaged. As Tonya Brito explains in her important article, Fathers Behind Bars, these negative consequences are happening with enforcement measures for child support, especially the use of incarceration for non-payment.

In some states, those in prison for non-payment of support make up a significant portion of the jail population. This is perhaps not surprising. Imprisoned parents (usually, but not always, fathers) often are ensnared in a cycle in which they are incarcerated because they cannot earn money to pay off their obligations; their incarceration record hinders their employment opportunities after incarceration, placing them in the unenviable position of risking additional imprisonment because they are still unable to pay off their support obligations. To illustrate this troubling cycle, Brito focuses on the story of Michael Turner, who had been in prison six times since 2005 for nonpayment of child support. Continue reading "The Costs of Imprisoning Nonpaying Parents"

 
 

What’s So Special About Information Security

Andrea M. Matwyshyn, The Law of the Zebra, 28 Berkeley Tech. L.J. 155 (2013).

A debate continues to brew about the proper interpretation of the Computer Fraud and Abuse Act (CFAA), the federal statute that imposes criminal penalties on individuals who access computer networks without authorization.  For at least a decade, scholars and a growing number of courts have wondered whether the owner of a computer network could define “authorization” using form “terms and conditions” of the sort often presented to consumers who purchase or use digital services.  If that strategy were successful, then someone who clicked “I Agree” on a digital form yet failed to comply with all of its terms might be accused – even convicted – of the federal crime specified by the CFAA.

Andrea Matwyshyn uses that apparently technical problem to revisit a much larger question:  When, whether, and how the law should treat computers and computer networks as special in any way when dealing with a host of doctrinal and policy issues:  commercial law, intellectual property law, telecommunications law, antitrust law, criminal law, and so on?  This was the subject of a famous scholarly debate back at the turn of the 21st century between Lawrence Lessig, who argued that considering a “law of cyberspace” offered commentators access to potentially valuable insights about how people interact with each other1, and Judge Frank Easterbrook, who accused cyberspace promoters of constructing an unworkable and unhelpful “law of the horse.”2 No one “won” the debate in its original form, but in the late 1990s the question was mostly academic, literally.  Too few law and policy judgments turned on the answer to make the debate matter in any but a conceptual or theoretical sense. Continue reading "What’s So Special About Information Security"

 
 

ABA Journal Puts Jotwell in Blawg 100

Vote for Jotwell

The ABA Journal has listed Jotwell as one of the top 100 law-related blogs of 2013, and invites readers to vote for which of the 100 is their favorite.

We’re starting late, as the contest has been going for a while, but readers are invited to vote for Jotwell as their favorite law blog — look in the “News/Analysis” category. Balloting ends Dec. 20. Please vote, as a good result will help publicize Jotwell’s reviews of legal scholarship to the circa 550,000 lawyers who read the ABA Journal.

This may also be an occasion to remind readers that we have a nice Jotwell Flyer that you can print out and post to tell colleagues about Jotwell. And, of course, we welcome your writing — see our Call For Papers.

 
 

The Sublime Object of Race

Nancy Leong, Racial Capitalism, 126 Harv. L. Rev. 2151 (2013).

Nancy Leong provides the legal academy with a riveting account of the ways in which the logic of capital influences racial politics. Leong weaves together several topics of interest to legal scholars in her new article: criticisms of capital, diversity politics, and race as property. Her analysis revives the Marxian1 analysis conducted by early scholars of the critical legal studies movement at a time when questions of capital and race are as relevant as ever. I like it lots.

Leong’s work takes on the momentous task of breathing new life into Marxian legal theory. It also contributes to our substantive knowledge of the ideology of diversity and to our understanding of Marxian ideas and their relationship to law. Leong’s contribution is timely given the recent Supreme Court decisions in Fisher v. University of Texas and Shelby County v. Holder, both of which arise from historical legacies of race and racism. Her article does much to question the rhetoric of diversity, the linkages of capitalism and law, and the complexities of racial politics in a racialized world. Continue reading "The Sublime Object of Race"

 
 

Posner on Realist Judging

Richard A. Posner, Reflections on Judging (Harvard University Press, 2013).

Reflections on Judging, by Judge Richard A. Posner, is the latest contribution to the familiar genre of extrajudicial writings by judges on the judicial process. But the book stands apart from most other works in the genre by the way that Posner situates the judge as part of a larger system while simultaneously maintaining a candid, personal, experience-based approach throughout.

In addition to offering personal reflections on the core judicial function of deciding cases through a sometimes creative process, Posner discusses the effects of pre-judicial careers, judicial selection, judicial training, law clerk selection and management, the writing process, the qualities of good and bad judicial opinions, the distinctive functions of trial court and intermediate appellate judges, judicial “googling” (he is an enthusiast), appellate advocacy, and many other matters beyond those conjured up by an image of the “judicial process” as the individual judge wrestling alone with difficult legal issues. For Posner, it is a matter of “urgent concern” to figure out “how the federal judiciary can cope with the increasing complexity of federal cases.” (p. 3) A question is “complex,” in this usage, “when it is difficult by virtue of involving complicated interactions, or, in other words, involving a system rather than a monad.” (P. 3) Appropriately, then, the book’s non-monadic reflections on judging exemplify the kind of approach that he thinks federal judges ought to take to complex matters more generally. Continue reading "Posner on Realist Judging"

 
 

Punishing Taxpayers for Erroneous Convictions

Andrew Chongseh Kim, Beyond Finality: How Making Criminal Judgments Less Final Can Further the Interests of Finality, 2014 Utah L. Rev. (forthcoming), available at SSRN.

Appellate courts often adjudicate as if prison is free. While no doubt many judges and justices are concerned with the accuracy and fairness of the convictions they review, at least to a degree, they also make economic judgments as if the costs at issue were principally borne by the judiciary. Criminal defendants can lose appeals not because their claims are meritless, but because the issue was not timely or sufficiently raised below; courts affirm in the face of error on considerations of judicial economy or avoidance of further proceedings which would not have been necessary had the issue been raised in a timely manner.1

A court-focused analysis of costs might have been reasonable in an era when prison populations were much smaller and probationary sentences were available for almost every offense. Today, however, at issue in almost every criminal appeal is whether to affirm the issuance of a six- or even seven-figure check, paid not by the judiciary but by the taxpapers. Professor Andrew Chongseh Kim’s paper suggests that courts have been looking at the economics through the wrong end of the telescope. Continue reading "Punishing Taxpayers for Erroneous Convictions"

 
 

Managing Global Supply Chains: Coca Cola and Sugar in Brazil

Salo V. Coslovsky & Richard M. Locke, Parallel Paths to Enforcement: Private Compliance, Public Regulation, and Labor Standards in the Brazilian Sugar Sector, 41 Pol & Soc 496 (2013), available at SSRN.

An article in the Wall Street Journal in June 2013 described supply chain management as “The Hot New M.B.A.” The Whitman School of Management at Syracuse University says it has been focusing on supply chain issues since 1919, and says that now “[s]upply chain managers very often hold the key to corporate profitability.” But as well as managing supply chains from the perspective of efficiency, corporations also need to manage their legal and reputation risks, especially when their supply chains are global. Transnational corporations manage these risks by developing and monitoring compliance with their own codes of conduct. At the same time the states where producers and manufacturers operate have, and are developing, their own regulatory regimes.

In a special issue of Politics & Society on regulation in Latin America, Salo Coslovsky and Richard Locke examine interactions between private codes and public regulation focusing on Coca-Cola’s management of working conditions in its sugar supply chain in Brazil. As the authors point out, working conditions in the sugar production industry have generally not been good: sugar production inherently involves hard work in hot climates, and large and politically connected family firms are involved in sugar production in Brazil. Recent events illustrate that focusing on working conditions does not tell the whole story: in October 2013 Oxfam published a report which argued that increasing demand for sugar was encouraging large companies to displace poor sugar farmers. Coca-Cola promptly promised to take action to protect land rights of farmers in sugar-producing areas. Nevertheless, Coslovsky and Locke describe an interaction between private and public regulatory regimes that improves working conditions for sugar producers. And it is the interaction that matters: public regulation and Coca-Cola’s efforts combine to help workers. Continue reading "Managing Global Supply Chains: Coca Cola and Sugar in Brazil"

 
 

Can “Semi-Procedural Review” Help Solve the Problems of Constitutional Theory?

Ittai Bar-Siman-Tov, Semi-Procedural Review, 6 Legisprudence 271 (Dec. 2012), available at SSRN.

The most famous problem in American constitutional law is the counter-majoritarian dilemma, which asserts that it’s troubling for an unelected U.S. Supreme Court to invalidate duly enacted laws. In a journal article, Semiprocedural Judicial Review, Israeli legal scholar Ittai Bar-Simon-Tov makes an important contribution to the scholarly debate over this dilemma, drawing partly on the jurisprudence of several national and trans-national courts. This global focus distinguishes his article from some similar earlier work by American law professor Dan Coenen. Tov’s theory preserves judicial review but also promotes deliberative democracy.

The article starts with evidence that various courts have found laws unconstitutional, or illegal, because the laws were adopted without sufficient deliberation, public consultation, legislative findings, notice, or other procedural protections. The author himself does not reject substantive review, but he argues that examining a law’s procedural context should also determine legality, especially when courts are engaged in proportionality analysis (e.g. the balancing of the state’s interest versus the individual’s burden). This addition of procedural to substantive review minimizes the counter-majoritarian dilemma by fostering thicker democratic processes. Continue reading "Can “Semi-Procedural Review” Help Solve the Problems of Constitutional Theory?"

 
 

Soft Institutional Design

Margo Schlanger, Offices of Goodness: Influence Without Authority in Federal Agencies, U. Mich. Pub. L. Res. Paper No. 353 (September 9, 2013), available at SSRN.

Margo Schlanger is a law professor at Michigan well-known for her work on prisons, structural reform litigation, and civil liberties, but not (yet) on administrative law as such. Perhaps for precisely that reason, she has given us here a novel, plausible and important account of a new species of administrative institution, one that administrative lawyers have heretofore failed to describe in general terms. A “new” species not in the sense that the species is new to the world, of course, but in the sense that it is newly identified by theory. Field zoologists discover species or traits of species that complicate or overturn established theoretical taxonomies; W.H. Caldwell famously proved that the platypus is a mammal that nonetheless lays eggs (“monotremes oviparous, ovum meroblastic”—so ran the immortal telegram). Likewise, field research on institutional design in the wild often does more for the progress of knowledge than a dozen nth-decimal refinements on whiteboard models of administrative interaction.

The novel institutional form here is the “Office of Goodness,” an office embedded within a larger agency and tasked with promoting or enforcing an extrinsic value that is orthogonal to the agency’s mission, or even one that constrains the agency’s mission. Schlanger headed the Office of Civil Rights and Civil Liberties embedded within the Department of Homeland Security from 2010 to 2012, and she draws upon her personal experiences with the effort to temper the imperatives of security by a measure of attention to liberty and security. But there are no war stories here, only informed illustrations of the larger theme. And Schlanger identifies similar offices from elsewhere in the government. Continue reading "Soft Institutional Design"

 
 

I’m Shocked, Shocked To Find that Politics Is Going on in Here

Charles J. Morris, How the National Labor Relations Act Was Stolen and How it Can Be Recovered: Taft-Hartey Revisionism and the National Labor Relations Board’s Appointment Process, 33 Berkeley J. Emp. & Lab. L. 1 (2012), available at SSRN.

Charles J. Morris, Professor Emeritus at Southern Methodist University Dedman School of Law, is a giant in the field of labor law. After graduating from Columbia Law School in 1948, he practiced in Dallas, Texas, for just shy of 20 years before receiving an academic appointment at SMU, where he taught for about a quarter-century, from 1967 until his retirement in 1991. During his first year in teaching, Professor Morris began service as a labor arbitrator. In 1978 President Carter appointed Morris to serve on the Federal Services Impasse Panel (FSIP), a post he held until 1983. Despite his retirement, Morris has remained an active scholar. Indeed, Cornell University Press published his magnum opus, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace in 2005, a book that earned him a place on the Right-to-Work’s Ten Most Wanted list.

In other words, Professor Morris is an active 90-year-old with a plethora of institutional knowledge about the Act. He started law school when the National Labor Relations Act (NLRA) was the Wagner Act. He graduated from law school after the passage of Taft-Hartley. He practiced law for two decades before teaching labor law for another quarter-century. He has been involved in labor-dispute resolution as an arbitrator and as a member of the FSIP. His labor law scholarship spans five decades. He has lived through almost the entire history of modern labor law. So when he writes about the subject that puzzles all labor scholars—why is union density so low—those in his field should at least consider his thoughts. Continue reading "I’m Shocked, Shocked To Find that Politics Is Going on in Here"

 
 

A Decedent’s Digital After-Life

Jamie Patrick Hopkins, Afterlife in the Cloud: Managing a Digital Estate, 5 Hastings Sci. & Tech. L.J. 210 (2013), available at SSRN.

A decedent might have gone to join his digital property in the clouds, but for the estate lawyer here on earth, these digital assets may require more novel and not (as of yet) widely embraced estate planning techniques.

In his recent article, Professor Jamie P. Hopkins identifies the digital assets that increasingly are property interests of a decedent’s estate. The mechanics for establishing joint ownership of digital assets is less than clear; the importance of including digital assets in the estate plan for their post-death transfer is highlighted. Continue reading "A Decedent’s Digital After-Life"

 
 

Does My Digital Estate Belong to Me? Estate Planning for Digital Assets

Jamie Patrick Hopkins, Afterlife in the Cloud: Managing a Digital Estate, 5 Hastings Sci. & Tech. L.J. 210 (2013), available at SSRN.

In the article, Afterlife in the Cloud: Managing a Digital Estate, Professor Jamie Hopkins steps into the tangled web of estate planning for digital assets. Professor Hopkins’s article is timely and allows us to begin a much needed discussion about a new and important area of estate planning. He begins to answer the question of what happens to digital assets when an individual dies. Can an individual dispose of his or her digital assets in a will or trust? How should issues of security and privacy be addressed? Hopkins reminds us that digital assets are vast and complex and traditional estate planning tools do not adequately address the issues that are involved with transferring such assets at an individual’s death. He suggests a combination of federal legislation and better service agreements between service providers and users as a solution to the digital dilemma.

Although, I am not convinced that federal legislation is the appropriate mechanism, I agree that uniformity is in order. Since only a handful of states have addressed the issue, many individuals are not aware of whether they may transfer certain assets when they die. For example, in my will, I devise my real and personal property to my designated beneficiaries. When I executed my will several years ago, I used a 35mm camera to take pictures. I used a day planner to keep my schedule, I kept paper copies of bank statements and other financial documents, and I used a Rolodex to store information from professional contacts. Today, my digital photographs are stored on a hard drive or in a cloud. I use an online scheduler to keep my appointments, I use online banking for most of my investments, I share photographs and videos via Facebook, I download my music and books from ITunes, and I use Twitter for professional connections. I have numerous passwords to these accounts, and I have checked “I agree” to several online service agreements. Will my beneficiaries have access to my digital assets? Professor Hopkins’s article is a wake-up call for people like me. Continue reading "Does My Digital Estate Belong to Me? Estate Planning for Digital Assets"

 
 

Tort as Backstop to Regulation in the Face of Uncertainty

Thomas Merrill & David Schizer, The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, Columbia Law and Economics Working Paper No. 440 (2013).

Thomas Merril and David Schizer—a property law theorist and tax law expert— deliver an ostensibly new framework for analyzing tort liability-regulation tradeoffs, standing on the shoulders of the pioneer in this area in the 1980s, Steven Shavell.  In The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy,  Merrill and Schizer offer a fairly modest strategy for regulating water contamination from hydraulic fracturing (also commonly known as “fracking”), a practice that is “transforming the energy landscape of the United States.”  But their proposals lay the groundwork for a more ambitious project: to reassess the balance between tort liability and regulation in areas that pose emerging, and incompletely understood, health and safety risks.  Fracking exemplifies the widespread trend of new, controversial practices with highly uncertain risks.  Tort law emerges as a backstop to best practices regulation: tort liability rules provide “a form of protection for those injured by technological innovations, while information gradually accumulates that may eventually lead to more protective ex ante regulation.”

Hydraulic fracturing is a controversial process whereby energy companies pump fluid into shale formations at high pressure to crack the rock and release the gas and oil trapped inside.  Merrill and Schizer are not shy about their overall support for the “fracturing boom,” which holds the potential to “increase the competiveness of the United States in the global economy, reduce our reliance on energy imports and enhance our energy security.”  At the same time, they acknowledge the potentially high price of fracking: increased air pollution, traffic and congestion (all risks associated with conventional oil and gas drilling) and, most significantly, potential contamination of groundwater (a unique risk associated with fracturing). Continue reading "Tort as Backstop to Regulation in the Face of Uncertainty"

 
 

Once a U.S. Corporation, Always a U.S. Corporation…

Omri Marian, Jurisdiction to Tax Corporations, 54 B.C. L. Rev. 1613 (2013).

Imagine a 19 year old college student in Texas stumbles upon a new business idea to sell built-to-order computers shipped directly to customers out of his dorm room.  The idea proves revolutionary, and the student is inundated with orders.  To grow the business the student forms a corporation, naturally in Texas.  Eventually the corporation grows into the largest personal computer maker in the world, with over 90% of its sales outside the United States.

Absent some significant tax planning, however, the company would pay US tax on all of its worldwide income, including the income from foreign sales.  This is because the United States taxes the worldwide income of all U.S. taxpayers regardless of the source of the income. On the other hand, an identical “foreign” company with identical sales would only be subject to U.S. tax on the income from sales made inside the United States..  The reason for this disparity is that, under U.S. law, a corporation is treated as a U.S. taxpayer if it is legally organized under the laws of the United States, any State thereof or the District of Columbia and foreign if it is not, regardless of business model or source of income. Continue reading "Once a U.S. Corporation, Always a U.S. Corporation…"

 
 

It’s the System, Stupid?

Mitu Gulati and Robert E. Scott’s new book, The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design examines the pari passu clause, a clause designed to ensure a debtor’s creditors rank against each other equally. It asks why a standard clause in cross-border financial contracts remained in sovereign debt contracts after a well-known but minor judgment in a Belgian court suggested that the clause should be amended or removed. The book reveals that the majority of practitioners designing and drafting these contracts did not have a coherent and consistent explanation of the origin, purpose, or meaning of the term in sovereign debt contracts. How can it be that sophisticated legal practitioners can put forward contracts, worth millions or even billions of dollars, where they do not understand a term common to, and prominent in, the contract? And once a court decision, albeit an ‘unreliable’ ex parte Belgian decision, threatens to undermine received wisdom on the overall effect of those sovereign debt contracts, posing not insignificant risk that the clauses will be litigated, how is it that these terms remain largely unaltered? Moreover, why is the clause not removed if, as many seem to think, it performs no discernible and certainly no predictable function in the sovereign debt arrangements?

These are some of the fascinating questions explored in Gulati and Scott’s excellent book, The Three and a Half Minute Transaction. Part empirical project, part theoretical exposition of securities law, and part detective novel reaching back to Bolivia in 1870, it is a highly readable and nuanced account of how elite lawyers approach the drafting of sovereign debt contracts. The account is theoretically and empirically rich. Its conclusion is that modern legal practice poses significant challenges to the evolution of professional practice. It also raises questions about whether and how systemisation works. Systemisation is the idea that legal practice can be disaggregated into component parts and automated through processes (checklists, software and the like). As a favourite theme of innovators keen on developing legal practice beyond the inefficient artisan model— the book serves as a reminder as to how systemisation needs to cope with the complexity and stickiness of clients and markets. Continue reading "It’s the System, Stupid?"

 
 

Substance, Procedure, and the Interdependence of Gatekeeping Standards Across Multiple Stages of Litigation

Louis Kaplow, Multistage Adjudication, 126 Harv. L. Rev. 1179 (2013).

Legal reasoning is often a reductive enterprise that enables lawyers to address a difficult question by positing a series of constitutive questions.  Dissecting vexing problems into more manageable components fosters analytical precision.  But precision comes with a risk of overlooking connections between seemingly discrete issues.  Each isolated inquiry may develop a life of its own that obscures their collective interdependence.

This phenomenon of distorting problems by isolating them is evident in the legal academy’s approach to the study of procedure and the judiciary’s approach to resolving disputes.  Law schools generally do not offer courses in “procedure,” focusing instead on subsidiary fields such as criminal procedure, administrative procedure, and civil procedure.  Within each field, coverage further dissolves into distinct topics.  Students may occasionally explore “civil procedure” in the abstract, but more often will study narrower subjects such as pleading, discovery, and summary judgment.  Scholarship often mirrors these divisions, coalescing into distinct literatures analyzing discrete aspects of litigation.  Judicial opinions likewise rarely consider procedure as an undifferentiated whole.  Instead, decisions address motions tailored to particular phases of litigation. Continue reading "Substance, Procedure, and the Interdependence of Gatekeeping Standards Across Multiple Stages of Litigation"

 
 

A Legal History That’s Really About the Place of Law in History

As the title suggests, Someday All This Will Be Yours is a legal history about inheritance and old age. The legal conflicts that form the core of the book make for compelling reading. Even so, the title does not capture the book’s most compelling elements, which challenge conventional assumptions about legal history and the place of law in the past.

Someday All This Will Be Yours is a legal history in which the law is not really the focus. To be sure, Hartog bases the book on two hundred New Jersey cases from 1840 to 1950. All these cases involved conflicts over inheritance, in which older people promised property in return for care from younger people—often, but not always their children or other relatives. Hartog calls it a “primordial transaction found perhaps anywhere and everywhere and in any time and every time”: “Work and care for property. You do this (take care of me), and I promise to do that (give you property at my death).” (P. 3.) In law, such promises resulted in an enforceable contract, and legal cases ensued when older people did not follow through with their end of the bargain. As Hartog argues, the cases did form a distinct legal pattern, in which the wishes of the older people writing the wills took precedence over those of the younger people to whom promises had been made. But, as he also points out, the legal implications are not really the point. In fact, the cases have been largely forgotten in law. Continue reading "A Legal History That’s Really About the Place of Law in History"

 
 

Trademark As Promise

Jeremy N. Sheff, Marks, Morals, and Markets, 65 Stan. L. Rev. 761 (2013).

The primary theory of trademark law in the academic literature is an economic one. Trademarks are a shorthand, the theory goes, for a number of observable and unobservable qualities of products. The trademark PEPSI, to take one example, is an easy way for a consumer to identify the cola that she enjoys without having to investigate other types of information, such as the location or corporate identity of the manufacturer. Indeed, some types of investigation in this regard—tasting the cola before purchase to confirm that it is the preferred drink—are frowned upon, to say the least. So the law regulates the use of trademarks in order to reduce search costs for consumers and, relatedly, to encourage producer investment in goodwill. When an unauthorized producer uses another’s trademark, the consumer is deceived into purchasing an unwanted product or forced to engage in additional efforts to find the product that she desires, both of which are inefficient. Although economic theory may not map neatly onto all areas into which trademark law extends (dilution law being one such example), it appears to be fairly well accepted in the scholarly literature that economic theory provides the predominant justification for trademark law’s existence.

But consumers obviously do not always act in ways consistent with economic theory. The relationships that some consumers have with some brands transcend a mere economic transaction; they involve identity construction and signaling motivated not by a product’s objective qualities but by intangible, emotional responses to the brand. The fact that some consumers are willing to pay many hundreds of dollars for a designer handbag or watch beyond the price that could be justified by the item’s materials or workmanship are a testament to the limits of economic theory. Continue reading "Trademark As Promise"

 
 

A Big Picture View of What Could Be Done About the Institutional Corruption of Medicine

Marc A. Rodwin, Conflicts of Interest, Institutional Corruption, and Pharma: An Agenda for Reform, 40 J.L. Med. & Ethics 511 (2012), Suffolk Univ. Law School Research Paper No. 12-40, available at SSRN.

Since long before his 2011 Oxford University Press book that takes a comparative approach to the problem, Marc Rodwin has been a leading voice in the debate around the pharmaceutical-healthcare industrial complex, and the conflicts of interest that it perpetuates. In his latest contribution in the Journal of Law, Medicine, and Ethics (JLME), Rodwin wisely moves from the language of ethics—which finger-waggingly suggests an individualism of bad guys and good guys—to the language of “institutional corruption.” Rodwin writes that, “in the past, physicians and scholars typically conceived of conflicts of interest as an ethical issue to be resolved according to individual judgment or professional and organizational norms. However, society can mitigate or eliminate conflicts of interest by changing financial and organizational arrangements in medicine.” Larry Lessig has encouraged this sort of move from individuals to institutions in his own work, and in his leadership of the Institutional Corruption Lab at the Edmond J. Safra Center for Ethics at Harvard, where Rodwin is a lab fellow. (Disclosure: I receive support from the Lab too).

Institutional corruption is useful as a lens to understand these problems because it directs us to examine the two-way economy of dependence. To the extent that incentives matter in our world of rational actors, an economy of dependence is an economy of influence. Rodwin notes that the pharmaceutical industry depends on public support in the form of tax subsidies, patent law rules, and other incentives. It is a strange exchange relationship, one where our government gives tax breaks for research and marketing, and even enforce a monopoly, for any new chemical compound invented by a drug company. It does so to the same extent, regardless of whether the new chemical is a cure for cancer or a “me too” drug, which makes no real improvement to clinical care. On the other hand, Rodwin identifies several ways in which the public, physicians, and patients now rely on drug companies. Pharma—not the Food and Drug Administration—sets its own priorities for drug development; designs and conducts the clinical trials that demonstrate safety and efficacy; monitors adverse drug reactions; and finances continuing medical education (CME), medical societies, and journals. Continue reading "A Big Picture View of What Could Be Done About the Institutional Corruption of Medicine"

 
 

Domestic Partnership Before Same-Sex Marriage

Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Impact on Marriage, 102 Cal. L. Rev. (forthcoming 2014), available at SSRN.

The left critique of the marriage equality movement has raised important questions about the privileging of marriage in our society and whether the push for same-sex marriage reinforces the second-class status of nonmarital (and nonintimate) relationships. This critique is invaluable because it presses us to focus on what should be the ultimate objective behind the current push to gain marital rights for same-sex couples: The end goal should be to encourage society and the state to recognize, support, and value many different types of familial and personal relationships. I view same-sex marriage not as an end in-and-of-itself, but as a means for having broader (and more important) debates over the role of gender, biology, and marital status in legally recognizing and supporting relationships between adults and between adults and children.

There is much to the left critique of same-sex marriage, therefore, that I value and respect. However, there is one aspect of that critique, related to the push for the legal recognition of relationships before the age of same-sex marriage, about which I have always been skeptical. Some critics have claimed that at the time marriage equality became the LGBT rights movement’s most important goal starting around the mid-1990s, there were well-organized efforts under way in different parts of the country aimed at reducing the importance of marriage, primarily by demanding the enactment of domestic partnership laws. These critics have claimed that if it had not been for the marriage equality movement, the early efforts to promote alternatives to marriage would have borne fruit, to the point where marriage today would be less central to the distribution of rights and benefits. Continue reading "Domestic Partnership Before Same-Sex Marriage"

 
 

The Cancer of the Internet

Finn Brunton, Spam: A Shadow History of the Internet (MIT Press, 2013).

Technologies do not come with social or legal instruction manuals. There is nothing inherent in rooftop strobe light bars to suggest that police may use them but not civilians, or in thermal imaging cameras to suggest the reverse. The public must figure out what to do with each technology as it becomes available: embrace, ignore, regulate, ban. If we are lucky, the rules distinguishing acceptable from forbidden uses can come, over time, to seem like natural features of the technology itself. But they are not: the rules have to come from somewhere, and someone had to work them out, somehow.

For an example, consider today’s debates on what to do about drones. Or for another, consider spam, the subject of Finn Brunton’s erudite and entertaining Spam: A Shadow History of the Internet. Brunton pushes his history far back before the 1994 advertisment from a pair of immigration lawyers that is usually thought of as spam’s Ground Zero. He notes, for example, a 1971 antiwar message sent to every user of the Compatible Time-Sharing System and a 1978 announcement of a DEC computer demonstration sent to all West Coast ARPANET users–both of which provoked debate around the acceptable boundaries of network use. Brunton argues that well into the 1990s, spamming was considered a primarily social offense, separate and distinct from commercial self-promotion, and of an entirely lesser order than “net abuse” (P. 39) like crashing computers. Spam was a form of free speech, and like other inappropriate speech was to be met with censure rather than censorship. Continue reading "The Cancer of the Internet"

 
 

Scholarship in a Violent Time

Alexander Kondakov’s paper on the claims framed by gay and lesbian activists in Russia and the effects of official silence is brave and thought-provoking.

It is a fine example of socio-legal research, combining discourse analysis of sources gathered from empirical research with theoretical insights. Amongst other sources, Kondakov draws on Wendy Brown’s work on tolerance and Brenda Cossman’s study of how refusing legal recognition to same-sex marriage nevertheless inaugurates it into “speakability.” Methodologically, his discussion of the “sub-discourse under the articulated one” as part of the normative order, “shaping things that are supposed to be left unsaid,” might appropriately inspire other legal researchers, as much scholarship confines itself to that which is said. Continue reading "Scholarship in a Violent Time"

 
 

When to Punish

Patrick Tomlin, Time and RetributionLaw and Phil. (forthcoming, 2014).

It isn’t every day that you come across an article that approaches an old topic from a completely new perspective, but that is exactly what Patrick Tomlin’s Time and Retribution does for retributivism in criminal law. Although there are now many different theories of retributivism out there, it seems fair to say that the bulk of them take desert to be the central core of retributivism, and many theorists (myself included) would say that it is intrinsically good for someone to get what he deserves. As I oversimplified retributivism once, “It is the claim that bad guys deserve punishment.”

On the other hand, with perhaps some exceptions like shaming punishments and the death penalty, the standard thought is that retributivists qua their retributivism have nothing to say about the mode of punishment. Decisions about incarceration, fines, short-but-intense punishments, long-but-light punishments—none of these are questions for retributivists. If retributivists have views, these views come from other parts of their general moral or political framework. At least, that was what I thought before I read Tomlin’s article. Continue reading "When to Punish"

 
 

(Most) Comments Are Closed (Updated)

wikiOver the past few weeks, Jotwell has been hit with an increasing flood of multi-lingual spam comments. This grew to the point that the flood coming in was beyond our server’s limited capacity to cope, and we were down most of today. The source appeared to be a botnet, as the IP numbers exhibited no discernible pattern that we might have blocked.

In order to bring the site back up and discourage the attackers we’ve turned off comments just about everywhere in the Jotwell family of sites. Unfortunately, it seems possible that we will have to keep comments off until (or unless) we figure out a better solution.

For those who care about such things, the hardest hit section was Classics which alone garnered more than 87,000 spams recently, followed by Cyberlaw and Jurisprudence. The next group, almost tied, consisted of Criminal Law, Administrative Law, Health Law and IP Law.

Update 11/8/13: As an experiment, we’re re-opening comments on the most recent articles. Comment availability may fluctuate depending on botnet conditions….

 
 

Police Don’t Pay

Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. ___ (forthcoming 2014).

Whenever I teach criminal procedure I arrange for a police officer to talk to my students.  It’s always a fascinating class.  I remember one time in particular when a student asked an officer whether the officer would be more unhappy if evidence he found was excluded from trial on Fourth Amendment grounds, or if he faced personal liability in a civil damages suit under section 1983 for a Fourth Amendment violation.  With absolutely no hesitation, the officer said that he would be much more unhappy if he had evidence excluded in a criminal case, and that he simply didn’t worry about section 1983 because an occasional lawsuit was par for the course.

At the time, I thought it was a surprising answer and so did my students.  Wouldn’t most officers be more concerned about a lawsuit that could expose them to personal financial liability?  That assumption seems to have driven much jurisprudence in the constitutional litigation arena—for example, the doctrine of qualified immunity is premised on the notion that officers need breathing room to do their jobs without worrying incessantly about crippling financial liability. Continue reading "Police Don’t Pay"

 
 

Justifying Fiduciary Law

•  Paul B. Miller, A Theory of Fiduciary Duty, 56 McGill L.J. 235 (2011), available at SSRN.
•  Paul B. Miller,Justifying Fiduciary Duties, 58 McGill L.J. 969 (2013), available at SSRN.
•  Paul B. Miller, Justifying Fiduciary Remedies, 63 U. Toronto L.J. (forthcoming 2013), available at SSRN.

Fiduciary law is pervasive. The distinctive duty of loyalty that is the hallmark of fiduciary law arises in myriad private relationships, including guardianships, employment relationships, trusts, business organizations, and professional relationships in law, medicine, and other fields. Recently legal scholars and courts have extended the logic of fiduciary law to public servants and nation states.

Despite its manifest importance, fiduciary law has not achieved the same stature as the other pillars of private law – torts, contracts, property, and unjust enrichment. Fiduciary law has been described as “messy,” “atomistic,” and “elusive,” and one commentator recently observed, “fiduciary law has been characterized as one of the least understood of all legal constructs.” Perhaps as a result of these conceptual challenges, law professors traditionally have taught fiduciary law in small portions, complicating the law student’s search for overarching principles.

Paul Miller is among a small group of legal scholars attempting to advance private law theory by justifying fiduciary law. In a series of recent articles – A Theory of Fiduciary Liability, Justifying Fiduciary Duties, and Justifying Fiduciary Remedies, Miller builds on the increasingly accepted notion that fiduciary relationships are distinctive, but offers a novel account of fiduciary law. Continue reading "Justifying Fiduciary Law"

 
 

The Long History of the Indian Child Welfare Act

Margaret D. Jacobs, Remembering the “Forgotten Child”: The American Indian Child Welfare Crisis of the 1960s and 1970s, 37 American Indian Quarterly 136 (Winter/Spring 2013).

The modern nation-state is rife with contradictions: “hard” borders that are in fact both permeable and unstable; inhabitants who have assumed many of the rights and obligations of citizenship, but whose illegal border crossings undermine the nation’s claim to sovereignty; territories within the nation-state where the state’s jurisdiction is uneven or unclear. In recent U.S. history, these contradictions have been made visible in poignant form: Elián González, the Cuban boy whose asylum case captivated the nation in 2000; the high-achieving “alien minors” contemplated by the DREAM Act; and most recently, Baby Veronica, the child at the center of a fierce custody dispute between her biological father, a member of the Cherokee Nation, and her non-Indian adoptive parents. In December 2011, when Veronica was 27 months old, the South Carolina Family Court found that two provisions of the Indian Child Welfare Act of 1978 (ICWA) barred termination of the biological father’s parental rights. In Adoptive Couple v. Baby Girl, No. 12-399 (U.S. June 25, 2013), the Supreme Court disagreed. The majority opinion, which casts Baby Veronica as only the slightest bit Cherokee (3/256, to be precise), should be read alongside Margaret Jacobs’s important article, “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s,” which encourages us to remember all the children that came before—and all the nation-making and un-making done on their backs.

To be clear, the majority opinion in Adoptive Couple v. Baby Girl is not devoid of history—it recognizes the ICWA’s concern for the disproportionate number of Indian children separated from their families and tribes through abusive child welfare practices—but the larger context is missing. Sometimes such omissions reflect gaps in the historical literature: knowledge about the past is easily lost when people are afraid or ashamed to talk, or when historians fail to ask them. In this instance, however, there was not only a selection of historically informed amicus briefs, but also Jacobs’s superb scholarly article. Jacobs, a Bancroft-winning historian, explains why “the fostering and adoption of Indian children outside their families and communities had reached . . . crisis proportions by the late 1960s,” and why Native Americans ultimately demanded greater legal protections. (P. 137.) Continue reading "The Long History of the Indian Child Welfare Act"

 
 

Judicial Deference Defrocked

Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100 Calif. L. Rev. 519 (2012).

Balance between judicial power to invalidate legislative and executive actions on constitutional grounds and judicial deference to democratic decision-making is critical to the success of the American legal system. Too much deference undermines fundamental constitutional norms; too little deference undermines representative government. It’s a common refrain of Supreme Court dissents, by both conservative and liberal Justices, that the Court has arrogantly refused to defer—or slavishly deferred—to the other branches of government.

Stepping into this vortex, Judge Richard Posner has written a cogent, circumspect, sometimes quirky article on the historical trajectory of “Thayerian deference” from the 1890s to the 1970s. His history elucidates what constitutional deference encompassed in this period and why that theory of deference met its demise. Posner wisely marries the decline of such deference with the rise of constitutional theory. Continue reading "Judicial Deference Defrocked"

 
 

What Is the Real Effect of OIRA Application of Cost Benefit Analysis?

Michael A. Livermore, Cost-Benefit Analysis and Agency Independence, 81 U. Chi. L. Rev. (forthcoming, 2014), available at SSRN.

The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has been applying cost-benefit analysis (CBA) to major rules issued by exec­­­utive branch agencies for over thirty years. The practice has long been controversial among legal academics but the debates have taken place against a generally-agreed set of beliefs about the effects of OIRA application of CBA—it increases the power of the President to control policy making by the bureaucracy. Michael Livermore’s meticulously researched and well argued article challenges this enduring belief.

Livermore argues that the relationship between OIRA application of CBA to major rules and presidential influence over policy making by the bureaucracy is far more complicated than the standard account can capture. He contends that the practice has actually increased agency autonomy by providing agencies a means of protecting themselves from presidential control. In Livermore’s view, the practice of OIRA application of CBA to agency rules provides agencies with a “safe harbor” they can access by dominating the process for developing the methodology government uses to apply CBA. Continue reading "What Is the Real Effect of OIRA Application of Cost Benefit Analysis?"

 
 

Losing the Battle, Winning the War?

Catherine Fisk & Adam Barry, Contingent Loyalty and Restrictive Exit: Commentary on the Restatement of Employment Law, 16 Empl. Rts. & Employ. Pol’y J. 413 (2012), available at SSRN.

As the Restatement of Employment Law (REL) wends its way towards final approval, most likely next May, the debates about it—both within and without the American Law Institute (ALI)—may seem like yesterday’s news. But the promulgation of a new Restatement, unlike the passage of a statute, is not the last word on a legal subject but rather the beginning of a struggle for court imprimatur. In this regard, the scholarship that analyzes REL as it grinds through the laborious ALI mill may prove to have greater influence in judicial venues than it does before the Institute. At least in the case of Contingent Loyalty and Restrictive Exit: Commentary on the Restatement of Employment Law by Catherine Fisk and Adam Barry, that’s a good thing.

At the 30,000 foot level, the authors view the REL as having “two inconsistent visions about the employment relationship and about employee mobility.” Chapter 2, dealing with termination of employment, “envisions employment as a commodity market in which employers and employees contract for the sale of labor and expertise and are free to terminate the relationship when they deem it in their interest to pursue more lucrative opportunities with other contracting partners.” In contrast, Chapter 8, governing employee obligations, “shackles employees with continuing obligations at and after the termination of employment.” Fisk & Barry summarize: Continue reading "Losing the Battle, Winning the War?"

 
 

Filling in the Blanks

Adam J. Hirsch, Incomplete Wills, 111 Mich. L. Rev. 1423 (2013).

In his latest article, Incomplete Wills, Professor Adam Hirsch undertakes an elaborate analysis of the law governing the disposition of the portion of the testator’s probate estate undisposed of by the testator’s will. The breadth and depth of the research on which the article rests is formidable indeed. Although at first thought one might quarrel with the author’s assertion that the examination and classification of reported cases is a form of empirical research, he is candid about the limitations of the technique and his use of the cases is really quite traditional: they are illustrations of the great variety of circumstances in which the courts have considered real problems, in this instance, those caused by incomplete wills. And this use of the illustrations that the cases provide is the message of the article. Because wills are incomplete for many reasons, all of which are to some degree unintentional, the usually bright line rules that govern, exemplified by the closely related treatment of these topics in Restatement (Third) of Property (Wills and Donative Transfers) and the Uniform Probate Code (UPC), often give results that to varying degrees are out of sync with what we can learn of testators’ intentions.

Prof. Hirsch first discusses negative wills at great length, asking under what circumstances express disinheritance should be effective to supplant the intestacy statute in the event of a partial intestacy (providing along the way a complete discussion of current American law on the subject). With appropriate noting of the limitations of the data, he attempts to classify the reported cases according to the reason for disinheriting a family member by means of a negative will. The most we can conclude from this effort is that “the data suggest a substantial scattering of testamentary motives.” That fact, in turn, leads to the conclusion that neither the traditional refusal to honor negative wills nor their blanket approval by the modern view exemplified by the Restatement and the UPC is the best way to go. He suggests instead a close inquiry into the motives for making a negative will. The legislature will need to create a presumption about the testator’s intent to create a negative will or not, a presumption which for now will be arbitrary but in the future will be refined in light of cases decided under the new rule of ascertaining testator intent. Continue reading "Filling in the Blanks"

 
 

Did You Get The Message

Scott Hershovitz, Tort as a Substitute for Revenge, in Philosophical Foundations of the Law of Torts (John Oberdiek ed., forthcoming 2014) available at SSRN.

Modern tort theory begins with Holmes, who was eager to recast the old law of ‘trespass’ on suitably modern terms. Back when people were superstitious and quick to blame, tort could be understood as law that provides an alternative to vengeance. In our disenchanted world, however, tort law must be seen as a mechanism by which the state pursues a public policy, such as compensation of injury victims.

In Tort as a Substitute for Revenge, Professor Scott Hershovitz invites us to ask whether Holmes got us off on the wrong foot. Indeed, he argues that tort law has an important connection to revenge and that, as such, it is to be credited with delivering a kind of justice. Continue reading "Did You Get The Message"

 
 

Presumptive Collection: An Innovative Proposal for a Notoriously Difficult Problem

Kathleen DeLaney Thomas, Presumptive Collection: A Prospect Theory Approach to Increasing Small Business Tax Compliance, 67 Tax L. Rev. __ (forthcoming 2013), available at SSRN.

In Presumptive Collection: A Prospect Theory Approach to Increasing Small Business Tax Compliance, Kathleen DeLaney Thomas tackles the extensive, and notoriously difficult to address, problem of small business tax evasion.  She does so by proposing a novel solution to the problem: presumptive collection of tax liability.  Her solution is elegant, balanced, and a great example of how tax law professors can integrate scholarship from other disciplines with their detailed knowledge about tax law and compliance, in order to produce valuable real-world proposals.

Thomas starts off by detailing some of the well-known facts about the rampant tax evasion by small businesses.  These businesses, which have high opportunities to evade as a result of the lack of withholding and information reporting, engage in great amounts of evasion.  As a result, they are major contributors to the so called “tax gap,” and their evasion threatens the integrity of the tax system. Continue reading "Presumptive Collection: An Innovative Proposal for a Notoriously Difficult Problem"

 
 

A New Take On The Swing Justice

Peter K. Enns & Patrick Wohlfarth, The Swing Justice, J. Pol. (forthcoming  2013).

Whether quantitatively, qualitatively, journalistically, historically, or jurisprudentially, scores of papers have analyzed the “swing justice.” Is there anything left to learn?

Yes. In The Swing Justice, political scientists Peter Enns and Patrick Wohlfarth claim to make two contributions to the existing literature. By my count, it’s more like one-and-a-half, but that’s still a lot for a subject as picked over as this one. Continue reading "A New Take On The Swing Justice"

 
 

The Persistent Gender Wage Gap in Legal Practice: What We Know and What to Do

Joyce S. Sterling & Nancy Reichman, Navigating the Gap: Reflections on 20 Years Researching Gender Disparities in the Legal Profession, 8 Fla. Int’l. U. L. Rev. (forthcoming, 2013), available at SSRN.

Nearly twenty years ago, the Colorado Bar Association and the Colorado Women’s Bar Association published a study that identified, among other things, a significant wage gap between male and female lawyers practicing in the local Denver community: the “average woman working full-time earned only 59 cents to the dollar earned by the average man working full-time.” (P. 4.) This finding led to a commitment by the Colorado Bar to sponsor additional research on the “the mechanisms that produced the gap.” (P. 4.) To the good fortune of the Bar and the community of scholars interested in issues related to gender and the legal profession, two University of Denver professors agreed to undertake this additional research with the “expect[ation that they would]… be able to expose the sources of bias, make recommendations, and move forward to remove the barriers to women’s success in law.” (P. 4.) Thus began the collaboration by Joyce Sterling and Nancy Reichman that has produced more than 25 published articles, working papers, and presentations on the gender gap. Taking an empirical approach to the problem, they have drawn on numerous sources, settings, and theoretical frameworks, all the while with quantitative and qualitative data at the core of their work, to produce both foundational research and cutting-edge insight.

In Navigating the Gap: Reflections on 20 Years Researching Gender Disparities in the Legal Profession, one of their newest papers, Sterling and Reichman reflect on the continuing presence of the gender gap, and lament that their research has not led to the eradication of the wage gap much less other barriers to gender equality in legal practice. The article does more than lament, however. It is a call-to-arms, of sorts, that offers important ideas for advancing equality and simultaneously provides a comprehensive overview of what they have learned from their research and that of others about gender disparities in the legal profession. The dual focus of looking back and forward makes this article particularly significant. It offers an entrée to those unfamiliar with research about gender inequality in the legal profession and a map for those interested in joining research with activism. Continue reading "The Persistent Gender Wage Gap in Legal Practice: What We Know and What to Do"

 
 

The Disaster Relief Precedent

Michele Landis Dauber, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State (University of Chicago Press, 2012).

“The inner city deserves a disaster relief plan,” wrote Reverend Jesse Jackson, on the eve of Detroit’s bankruptcy filing and in the wake of Hurricane Sandy. The storm-ravaged coastal communities “all deserve[d] aid,” Jackson emphasized, but in cities around the country a “disaster” was unfolding that was “equally devastating, equally beyond anyone’s fault, and yet essentially ignored at the national level.”1 Readers may disagree about the merits of the analogy or the wisdom of Jackson’s proposal, but the structure of the argument should surprise no one—at least not after reading Michele Landis Dauber’s important new book, The Sympathetic State.

Since the nation’s founding, Dauber shows, Americans have mobilized the concept of disaster to claim large federal appropriations for those in need, even in decades remembered for laissez-faire governance. Using a “disaster narrative” (P.7), Congress distributed funds to the victims of floods and fires, droughts and earthquakes, Indian depredations and grasshopper plagues. Scholars who write about the welfare state often see a distinction between treatment of the “able-bodied” and those who are unable to work; it is one’s ability and willingness to participate in the market, in other words, that dictates “deservingness.” That distinction is absent, Dauber notes, in the case of disaster relief: the underlying logic of these grants is that the recipients are in desperate need “through no fault of their own.” (P. 34.) Continue reading "The Disaster Relief Precedent"

 
 

Liberalism Revisited

James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013).

We live in a liberal age, philosophically speaking.  One may argue about what variant of liberalism is most persuasive but, on the whole, most theories of law or politics do not seriously question a slate of liberal doctrines, most especially the primacy of individual autonomy, the commitment to “negative liberty” and thus the limitation of state coercion by the harm principle.  Perhaps it is an inevitable sign of the dominance of liberalism that a number of scholars have started to more acutely feel its shortcomings more acutely.  Thus liberalism is accused by some of being too thick, requiring commitment to a comprehensive world-view that makes individual liberty primary and excluding those who do not take controversial issues of law and politics to be decided by individual rights.  Gaining more momentum perhaps, are those who find liberalism too thin, arguing that the hegemony of individual rights leads our legal system to pay insufficient attention to the encouragement and enforcement of the duties of citizenship, civic virtue and morally valuable forms of life of both citizens and communities that cannot flourish without collective political support.

In the face of this increasingly strenuous criticism from both sides steps in Fleming and McClain’s Ordered Liberty: Rights, Responsibilities, and Virtues.  Fleming and McClain take up a rather ambitious task.  They seek to reform and/or illustrate, in turns, that liberalism of a certain type, their “Constitutional Liberalism,” can meet the challenges leveled at liberalism.  The text places itself firmly in that intersection of law, feminism, constitutional theory and political theory.  For those interested in purely philosophical discussion of liberalism, the book may seem to only weave in and out of important conversations.  That said, it does engage with important and popular contemporary philosophical and theoretical positions in the liberalism literature on liberalism, from Michael Sandel on one side to Cass Sunstein on another. Continue reading "Liberalism Revisited"

 
 

Creative Incentives

Katharina Eckartz, Oliver Kirchkamp, & Daniel Schunk, How Do Incentives Affect Creativity (CESifo Working Paper Series, Paper No. 4049, 2012), available at SSRN.

The classic justification for intellectual property laws was perhaps stated best by Abraham Lincoln, who, in speaking of the patent system, characterized its function as “adding the fuel of interest to the fire of genius.” Put less poetically, IP aims to encourage creativity by granting creators exclusive property rights in their creations. That way, if a patented invention or copyrighted work turns out to be worth money, the creator will benefit, rather than a copyist.

That sounds entirely sensible in theory. We think that people generally respond to incentives. Make gasoline more expensive by taxing it, and people generally use less of it. Give people a tax break on home mortgages, and they build more and bigger houses. Make creativity a little less risky, and the payoff a bit more certain, and we’ll get more investment in creative labor. Continue reading "Creative Incentives"

 
 

Harnessing the Power of Comparative Effectiveness Research for More Rational Health Care Financing

Russell Korobkin, Relative Value Health Insurance: The Behavioral Law and Economics Solution to the Health Care Cost Crisis, Mich L. Rev. (forthcoming 2013), available at SSRN.

Nearly all health insurance contracts currently sold in the U.S. cover all medically necessary, non-experimental services, subject to only specifically listed exclusions. As a result, the coverage provided is what those in the benefits industry would refer to as “rich” coverage. If the treatment is non-experimental and is expected to have a positive clinical benefit, no matter how small, it is covered regardless of cost. This rich coverage leads to some predictable problems. Because individuals typically have little incentive to decline treatment that might benefit them, utilization is high and costs rise accordingly. This, in turn, makes health insurance more expensive for all purchasers. Our health system has tried to remedy this issue by adopting managed care structures to create incentives for providers to limit utilization of a treatment where it has only marginal benefits. And, more recently, consumer-driven health care has been developed to create incentives for patients themselves to reduce utilization of marginally beneficial treatment.

Russell Korobkin’s new article seeks to address this well-known problem through a novel use of comparative effectiveness data to create health insurance contracts that only cover services that provide a given level of cost effectiveness.  He refers to this type of insurance as “relative value health insurance.” The basic idea is to start with an index of treatments based on cost-effectiveness, with a proposed scale of 1 for highly cost-effective treatments to 10 for treatments with low cost-effectiveness. Health insurance contracts could then be sold based on the level of cost-effectiveness they will cover. For example, insurers might offer a policy that covered all treatments with a rating of 3 or above for $X, while charging significantly more for a policy that covers all treatments with a rating of 7 or above. Korobkin’s basic argument is that relative value health insurance would greatly simplify an individual’s tradeoffs between medical care and competing goods and services. Continue reading "Harnessing the Power of Comparative Effectiveness Research for More Rational Health Care Financing"

 
 

Breaking The Silence: Prison, Child Welfare And The Systemic Oppression Of Black Women

Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. Rev. 1474 (2012).

Dorothy Roberts has previously written about the impact of widespread incarceration on black families, including the damage to social networks, the distortion of social norms, and the destruction of social citizenship. She has also written extensively about the child welfare system’s injuries to African-American families. In her latest article, Prison, Foster Care and the Systemic Punishment of Black Mothers, Roberts weaves together these two systems and analyzes how they intersect and converge, not only in the lives of African-American families, but particularly in the lives of poor black mothers. Roberts extends her analysis to show how the two systems naturalize social inequality and blame black women for the same inequality that the systems create. In doing so, Roberts exposes a pernicious cycle in which stereotypes about black female criminality and irresponsibility legitimate government intervention. The destructive effects of government intervention, in turn, reinforce those stereotypes.

As Roberts explains, other scholars (including Roberts herself) have exposed prisons and the child welfare system as instruments for social management and racial oppression, particular in African-American communities. Sociologist Loic Waquant, for example, includes mass incarceration within the long line of “peculiar institutions” that have subordinated African Americans, including slavery, Jim Crow, and urban ghettos.1 And legal scholar Michelle Alexander has argued that the mass incarceration of African-Americans functions like a modern day Jim Crow caste system by permanently excluding a large percentage of the African-American community from mainstream social and economic realms.2 While recognizing the importance of this scholarship, Roberts explains that it overlooks incarcerated women. This oversight is unfortunate, as the population of black women incarcerated for drug offenses exploded by 828% from 1986 to 1991. Continue reading "Breaking The Silence: Prison, Child Welfare And The Systemic Oppression Of Black Women"

 
 

Help in Deconstructing the Zimmerman Acquittal: The Suspicion Heuristic

L. Song Richardson & Phillip Atiba Goff, Self-Defense and the Suspicion Heuristic, 98 Iowa L.R. 293 (2012).

I like the article Self-Defense and the Suspicion Heuristic; consistent with Jotwell’s tagline, I like it lots. The timing of this short review is apt. The Zimmerman verdict was recently rendered. It is still fresh in our minds, protests are taking place across the United States, President Obama has delivered a landmark speech on race in America, reflecting that, “Trayvon Martin could have been me . . . .” Self-Defense and the Suspicion Heuristic is an important work that lends insight into thought processes that could have led both to the killing of Travyon Martin and the verdict of acquittal.

This Iowa Law Review article, authored by a law professor (Richardson) and social psychologist (Goff), explores the subtle “mental processes [that] can conspire to produce racially discriminatory behaviors.” (P. 295.) In attempting to disabuse the reader of the assumption that Mr. Zimmerman must have been a bigot or a racist, meaning a conscious discriminator, Richardson and Goff elucidate predictable and pervasive unconscious racialized psychological processes that “warp the perceptions of even the most egalitarian of individuals.” (P. 295.) They call for “a new legal and theoretical framework that can account for these biases—one that does not rely upon the fiction of the objective decision-maker or the scapegoat of the consciously biased actor.” (P. 295.) Tapping the mind sciences to illuminate unconscious psychological processing that “can lead to systematic errors in judgment about criminality,” the authors introduce “the suspicion heuristic.” They employ this heuristic, which is defined as a “mental shortcut that often leads to systemic errors in determining who is and is not suspicious” (P. 297) to interrogate reasonableness determinations in self-defense doctrine. Continue reading "Help in Deconstructing the Zimmerman Acquittal: The Suspicion Heuristic"

 
 

The Limits of Even the Most Powerful Theories, or Why Tax Really Is Different

Alex Raskolnivok, Accepting the Limits of Tax Law and Economics, 99 Cornell L. Rev. 523 (2013).

What are the criteria according to which tax base design should proceed? In Accepting the Limits of Tax Law and Economics, Alex Raskolnikov cogently reminds us not to rely too heavily on the approaches associated with tax law and economics, even if we find the approaches of law and economics in other contexts appealing.

Until early in the last century, there was little room for theory, economic or otherwise, in tax base design. The blunt practicalities of tax collection left little room for taxes that were not focused on highly visible and measurable activities. The development of economic theory, and its application to legal rules in the framework of “law and economics,” has shifted the focus from what can be collected to what should be collected (and from what can fairly be collected given the constraints of politics) to what can efficiently be collected, meaning in general with as little adverse effects on market activities as possible. In Accepting the Limits of Tax Law and Economics, Alex Raskolnikov outlines the reasons tax designers cannot rely solely—and probably not even primarily—on the methods of law and economics. Continue reading "The Limits of Even the Most Powerful Theories, or Why Tax Really Is Different"

 
 

Lessons Learned from International Prosecutions of Sex Crimes

Sex Violence as an International Crime: Interdisciplinary Approaches (Anne Marie de Brouwer, Charlotte Ku, Renée Römkens & Larissa van den Herik eds., 2013).

It has been nearly twenty years since crimes of sexual violence were prosecuted in international tribunals explicitly as crimes against humanity. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set the stage for how such crimes were to be understood as a matter of substantive criminal law and how they were to be prosecuted as a matter of procedural criminal law. These tribunals also left many unanswered questions to be determined by future courts in future cases. A recent book, Sexual Violence as an International Crime: Interdisciplinary Approaches, is a compilation of articles and essays by scholars, lawyers, professionals and others who have had a front-row view of these prosecutions. Its editors—Anne Marie de Brouwer, Charlotte Ku (who in the interest of full disclosure, is a colleague of mine), Renée Römkens and Larissa van den Herik—have undertaken the task of assembling a volume in the wake of “two decades of experience prosecuting crimes of sexual violence” in order to “assess the work that has been done with a view to understanding the next steps that need to need to be taken.” (P.8.) The volume’s contributors acknowledge some of the key milestones reached in the prosecution of sexual and gender-based violence, expose important failures, and forecast future challenges. (P. 8.)

The lessons learned from these early cases and subsequent cases address elemental definitions of crimes including the contextualization of consent in sexual assault against a backdrop of structural disempowerment or the inclusion of men and boys as victims of sexual violence; the use of conspiracy theories to prosecute not only the direct perpetrators of sexual violence, but also those further removed within the operational structure. They offer an assessment of practices developed in the investigation, reporting and analysis of data including the value of social scientific methods in meeting evidentiary burdens of fact and in understanding the impact of the harm on communities and individuals. The authors also explore the increasing sensitivities to victim-related concerns including evidentiary rules excluding evidence of past sexual conduct; privacy issues raised in the collection and documentation of medical and personal data; efforts to prevent the re-victimization of the victims by the criminal justice process itself. Continue reading "Lessons Learned from International Prosecutions of Sex Crimes"

 
 

James Wilson, the Committee of Detail, and the Federal Judiciary

William Ewald, The Committee of Detail, 28 Const. Comment. 197 (2012).

We know far too little about James Wilson, the Scottish-born and -educated lawyer who played a central role in framing the Constitution as a delegate from Pennsylvania and later served as Associate Justice of the Supreme Court.  Wilson was hounded to an early grave in 1798, after financial reversals landed him in debtor’s prison.  That ignominious end seems to have cast a long shadow, obscuring his earlier career as lawyer, judge, and statesman.  Happily, however, William Ewald has embarked on an intellectual biography of Wilson that will doubtless do much to restore the reputation of this most nationalist of founding fathers.

One interesting chapter of that biography has just appeared in article form.  It focuses, as the title suggests, on the work of the Pennsylvania Convention’s Committee of Detail.  Wilson was one of five members of that Committee, named in July 1787 to prepare a draft Constitution that reflected the Convention’s deliberations to that point.  Much of what we know about the Committee’s work comes from the text of Wilson’s own drafts of the Constitution.  We can watch provisions evolve and take shape as the product of a deliberative process of which we have no other record. Continue reading "James Wilson, the Committee of Detail, and the Federal Judiciary"

 
 

Cyber Finance Considered

Tom C.W. Lin, The New Investor, 60 UCLA L. Rev. 768 (2013).

Tom C.W. Lin’s The New Investor is well worth a read.  It’s about algorithmic trading, high-frequency-trading, flash crashes, and cyber attacks, and how they happen to be, could be, should be, and shouldn’t be changing our thinking about investment and securities regulation.  I picked the paper up from the top of the stack of papers in my office due to feelings of insecurity.  Yes, I had read the financial press with more than usual attention in the wake of the flash crash and had done some homework on dark pools, but I still had the sense I was missing something that others had managed to assimilate.  So I eagerly accepted this paper’s offer of a knowledgeable overview.

I am pleased to report that I was better informed than I had feared.  At the same time, the paper taught me all sorts of stuff  I was glad to learn.  The lesson was a pleasure.  The writing is excellent, the scope broad, the organization intelligent, and the tone measured.  But what about the policy bottom line?  A full and appropriate range of warnings emerges from the paper’s report of technical shortcomings.  There’s also a succinct review of structural regulatory shortcomings.  At the same time,  Professor Lin likes this stuff more than he fears it.  The “new investor” is a function of artificial intelligence, which in turn follows from mathematical inputs. The paper compares the new investor categorically to the rational actor investor of orthodox financial economics and the behaviorally challenged investor of recent academic fashion, and the new investor emerges from the comparison looking pretty good. Continue reading "Cyber Finance Considered"

 
 

SCOTUS Masks

Cass R. Sunstein, Constitutional Personae (preliminary draft July 25, 2013), available at SSRN.

Several years ago, I attended an AALS program featuring Cass Sunstein as a panelist. He spoke last, about an hour into the session. The moderator introduced him to knowing laughter by announcing, “Our last presenter is Cass Sunstein, who has just written another book . . . while he has been waiting to speak this morning.” Sunstein is an original, provocative thinker and a remarkably prolific writer: the kind of scholar who shuttles from the University of Chicago to Harvard University, the kind of public intellectual who takes time off to run OIRA (Office of Information and Regulatory Affairs) in the Obama Administration.

Sunstein writes—a lot!—about administrative law and constitutional law. In my own field, constitutional law, Sunstein always delivers intriguing insights. He does it again in this draft article. Conceptual articles like this one remind me of the economic models I studied in college: they are abstracted from reality but help us to better understand it. The SSRN version I read is clearly a draft and still has some way to go. (I wonder if any of his other fans occasionally get the feeling that Sunstein sometimes lets go of his pieces too soon.) Continue reading "SCOTUS Masks"

 
 

Remedying Structural Separation-of-Powers Violations

Kent H. Barnett, To the Victor Goes the Toil—Remedies for Regulated Parties in Separation-of-Powers Litigation, 92 N.C.L. Rev. (forthcoming, 2014), available at SSRN.

This coming Term, the U.S. Supreme Court is set to decide National Labor Relations Board v. Noel Canning, a case involving the constitutionality of the President using his recess appointment power to fill various vacancies on the National Labor Relations Board (NLRB). Unless the Court ducks the issues presented in the case, Noel Canning promises to become yet another important case in a string of recent decisions involving structural challenges to federal administrative agencies—challenges that have sought to limit agencies’ power based upon the Appointments Clause, the President’s recess appointment power, the President’s general Article II powers, and the judiciary’s Article III powers. For example, in 2010 in Free Enterprise Fund v. Public Company Accounting Oversight Board the Court held that the dual for-cause restrictions placed on removal of members of the Public Company Accounting Oversight Board (PCAOB) violated separation-of-powers principles. Similarly, in 2011 in Stern v. Marshall the Court held that a non-Article III bankruptcy court could not constitutionally enter a final judgment on a state-law tortious interference counterclaim.

Even though significant attention has been given to the constitutional merits of these and other recent cases, exceedingly little attention has been given by litigants, the courts and scholars to a subsidiary question lurking in the background of the cases: What should the proper remedy be when separation-of-powers violations are found to exist in the structures of federal administrative agencies? Professor Kent Barnett, an assistant professor at the University of Georgia School of Law, quite perceptively identifies this little-noticed question and begins to try to answer it in a forthcoming article titled To the Victor Goes the Toil—Remedies for Regulated Parties in Separation-of-Powers Litigation, which is soon to be published in the North Carolina Law Review. Given that the Noel Canning case is looming on the Court’s docket and various other structural challenges have been brought challenging the newly-formed Consumer Financial Protection Bureau (CFPB), Professor Barnett’s article is extremely timely. Indeed, it is a “must read” for courts and litigants involved in structural separation-of-powers cases as well as constitutional and administrative law scholars. Continue reading "Remedying Structural Separation-of-Powers Violations"

 
 

What Happened to the “Standard Employment Contract” and What Are Some Countries Doing About It?

Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (Katherine V.W. Stone & Harry Arthurs eds., 2013).

This book is the result of a project funded by the Russell Sage Foundation that brought all of the contributors together in September 2010 in the outstanding setting of Bellagio, Italy. The contributors were an all-star group of 22 academics and practitioners from around the world. Ten are from law, five from industrial relations, and the rest from various social sciences and business. Despite the idyllic setting for their work, the result of their collaboration is a collection of papers that work very well together to focus on significant development in the world of work, the rise and fall of what they call the “standard employment contract” (SEC). After the end of World War II and until sometime in the 1990s, a large percentage of workers in most of the developed countries had SECs. They had an array of job rights including “decent wages, protections against unfair treatment at work, social insurance provided by the state or the employer and, notably, some degree of job security.” While not all workers had them, SECs “became one of the pillars of the postwar economic system.” The system was the basis of the creation of a substantial middle class made up of workers, mostly male, in large manufacturing enterprises.

What is also made clear is that, while SECs had been the norm, the factors that produced them were substantially different among these different countries. Some SEC systems were driven by legislative mandate, while others, like those in the United States, were the result of labor markets internal to individual enterprises where the mutual expectation of long term employment created an incentive for both the employer and its workers to invest in firm specific skills. While perhaps procrustean, the developed Organisation for Economic Co-operation and Developement (OECD) countries are based on three broad economic traditions— “liberal” market oriented societies like the United States and the United Kingdom; “corporatist” countries in continental Europe like France and Germany, in which the government sits at the bargaining table with labor and management; and “Nordic” social-market economies like Sweden and Denmark that have universal and extensive social benefits with significant wealth redistribution through taxation. Continue reading "What Happened to the “Standard Employment Contract” and What Are Some Countries Doing About It?"

 
 

To Praise Testator’s Speech

David Horton, Testation and Speech, 101 Geo. L.J. 61 (2012).

Professor David Horton argues that testation is a form of expressive speech that may raise Constitutional concerns. In doing so, he reminds us of a basic reality—a will that disposes of property is also the will of an individual speaking to his or her family, friends, and community. Legal trends that emphasize efficiency over the testator’s individual voice are troubling.

Horton begins by examining three traditional analogies used by courts in deciding trust and estates cases—property, contract, and corporate law. In describing each analogy, Horton notes that none of these is spot on, there is an ill fit associated with each. This provides the intellectual space for other theories and perspectives, including speech. Horton acknowledges that his conceptualization of testation as Constitutional speech is also not a perfect fit; nevertheless it offers an intriguing lens through which to view some difficult cases and doctrines. Continue reading "To Praise Testator’s Speech"

 
 

Redressing the Harm of Death

Sean Hannon Williams, Lost Life and Life Projects, 87 Indiana L.J. 1745 (2012).

Sean Hannon Williams’ Lost Life and Life Projects tackles “wrongful death damages from the perspective of individual justice accounts of tort law.” Wrongful death damages—or, more accurately, their inadequacy—have long troubled tort scholars. Lately, as Williams shows, their shortcomings have been a particular sore point for economically oriented tort scholars.

The early common law of torts did not recognize any damages at all for wrongful death. Tort actions were personal and they died with the victim. Legislatures soon responded to this gap by passing two different kinds of statutes. One kind—survival statutes—enabled the estates of those wrongfully killed to recover the damages to which the dead would have been entitled had they not died (e.g., damages for medical treatment prior to death). The other kind—wrongful death statutes—addressed relational harm. Wrongful death statutes permit intimate relatives of the victim to recover for harm that they have suffered from her death (e.g., loss of financial support). Neither statute addressed the harm to the victim of her own premature, wrongful death. Only recently has there been any movement to remedy this gap by awarding damages for the victim’s lost “enjoyment of life.” Williams’ project is to bolster the case for such damages, in the name of justice to those who have lost their lives. Continue reading "Redressing the Harm of Death"

 
 

Recognizing and Rethinking Federal-State Tax-Base Conformity

Ruth Mason, Delegating Up: State Conformity with the Federal Tax Base, 62 Duke L.J. 1267 (2013).

In contemporary governance, while the U.S. Constitution recognizes the fifty states as sovereign entities, federal and state governmental policies and operations are functionally quite intertwined.  Nevertheless, state governments frequently like to show flashes of independence, particularly on hot button political issues.  Hence, we have seen states like California and Massachusetts getting ahead of their federal counterparts in adopting laws and policies to protect the environment and embrace gay marriage.  On the opposite side of the political spectrum, we have states like North Dakota, Texas, and Arizona challenging federal laws and policies regarding abortion rights, health care, and immigration.

Tax policy ranks among the more heated issues in modern politics.  Politicians argue a lot about what rates to apply to which taxpayers, but the tax policy debate is not limited to tax rates.  It is strange, therefore, just how little state individual income tax regimes differ from their federal counterpart.  State tax laws tweak the federal model here and there around the edges, but in the main, all of the states that impose a broad-based income tax rely either explicitly or implicitly on federal tax laws to define their tax base.  In her thoughtful article, Delegating Up: State Conformity with the Federal Tax Base, Ruth Mason thoroughly documents and persuasively challenges federal and state lawmakers to think more carefully about the consequences of this phenomenon. Continue reading "Recognizing and Rethinking Federal-State Tax-Base Conformity"

 
 

How Are Professional Service Firms Governed?

The leadership role in law firms and other professional service firms (PSFs) tends to be either a residual characteristic or is defined by the “great man” ideal (think of Paul Cravath and his vaunted system). Modern versions exist still: the recently departed Joe Flom of Skadden and Marty Lipton of Wachtell were exemplars of visionary law firm leaders who created great law firms. However, since around 1985, PSFs and law firms have become more anonymous in their leadership as the bureaucratized firm supersedes the charismatic individual.

Usually when scholars study PSFs—and for purposes of this review I focus on law firms—the entire firm is the unit of study rather than its management or governance. If we think of Nelson’s Partners with Power, Starbuck’s Keeping a Butterfly and an Elephant in a House of Cards, or Wald’s Smart Growth: The Large Law Firm in the Twenty-First Century, leaders, senior partners, and others flit by, but they essentially subsist in an environment that is expressed as collegial and lacking in explicit hierarchy. Continue reading "How Are Professional Service Firms Governed?"

 
 

The National Security Courts We Already Have

Robert Timothy Reagan, Fed. Jud. Ctr., National Security Case Studies: Special Case-Management Challenges (2013).

One of the longer-lasting consequences of the “Summer of Snowden” may well be the increased attention paid to the Foreign Intelligence Surveillance Court (FISC)—the special, secrecy-laden tribunal created by Congress in 1978 to oversee the U.S. government’s foreign intelligence activities. Among other things, greater public knowledge of the FISC’s role in both approving and circumscribing the government’s use of its secret surveillance authorities has rekindled the decade-old debate over the need for Congress to create special “national security courts.”

The animating justification for such tribunals is that, like the FISC, they would be in a better position than the ordinary Article III district courts to reconcile the central tension in national security adjudication: Balancing the secrecy pervading most national security and counterterrorism policies with the need to provide victims of governmental overreaching a forum in which to vindicate their statutory and constitutional rights. Indeed, although they have varied (at times, dramatically) in their details, proposals for specialized national security courts often hold out the FISC as the model upon which such tribunals can—and should—be based. To similar effect, many of the proposed reforms spurred by Snowden’s revelations have focused on increasing the volume and scope of litigation handled by the FISC, rather than shunting more of these issues into the federal district courts. Continue reading "The National Security Courts We Already Have"

 
 

Empire Before Nationhood

One of the challenges of reviewing Eliga Gould’s international history of the American Revolution, Among the Powers of the Earth, is that the book makes you feel like you’re looking at history through a 360-degree lens. A legal, diplomatic, and intellectual history spanning from the mid-18th century to the declaration of the Monroe Doctrine in 1823, the book situates the Revolution in the context of the evolving law of nations in a strikingly rich and detailed account. Everything, it seems, is in there.

Partly it’s Gould’s writing style. Rich in narrative and streamlined in argument, its movements back and forth between the two are unlabored. Continue reading "Empire Before Nationhood"

 
 

Faking It

Nancy Leong, Racial Capitalism, 126 Harv. L. Rev. 2151 (2013).
Stacy Hawkins, Selling Diversity Short, 40 Rutgers L. Rec. 68 (2012).

I’ve been the first Latina hired in a number of institutions, and on most occasions, those institutions have proudly and visibly trumpeted my hiring, in institutional media and outside as well. I’m well aware that my identity (if not my name) plus my hiring has accorded value to the institution. I’m also aware that in at least one institution, my hiring was an instance of what race scholar Nancy Leong calls “thin diversity,” but what I call fake diversity: signaling a commitment to racial diversity that didn’t really exist. Was I harmed (or was the public harmed) by this fake signal? Perhaps. But I like to think that I earned compensation, in the form of a job, and that the public benefited, because I might have helped to transform the institution in a real way despite the fake signal at the outset. All in all, I think a fair trade.

I was very excited to read Nancy Leong’s article, Racial Capitalism, and then to read Stacy Hawkins’ reply to Leong, Selling Diversity Short. These two scholars are welcome additions to the conversation about affirmative action, fresh voices in what can sometimes be a conversation that has become a bit tired and played out. Thanks to the wonders of electronic publishing, I might actually have read the critique before reading the actual article. Hawkins’ critique came out online in 2012 and Leong’s article in 2013. But in whatever order I read them, the back and forth among these scholars was terrific. Continue reading "Faking It"

 
 

The Interpretation-Construction Distinction in Patent Law: Is It Just a Matter of Semantics?

Tun-Jen Chiang & Lawrence B. Solum, The Interpretation-Construction Distinction in Patent Law, Yale L. J. (forthcoming), available at SSRN.

Claim construction is the meat and potatoes of a patent litigator’s diet: it is performed early and often in patent infringement litigation, and it is often outcome determinative. Claim construction’s notoriously uncertain and unpredictable nature is therefore highly problematic. In The Interpretation-Construction Distinction in Patent Law, Tun-Jen Chiang and Lawrence B. Solum argue that courts and commentators have misdiagnosed the root cause of this problematic unpredictability, and they lay out a new route forward for courts seeking to make claim construction more predictable. At the end of the day, I am unconvinced that the patent community should follow this route. Nonetheless, I think that The Interpretation-Construction Distinction is a provocative read that forces the reader to clarify what are sometimes implicit, unarticulated assumptions about the nature of claim construction in order to mount an effective rebuttal.

Drawing on a literature that explains how courts give legal effect to other legal documents (including the Constitution and contracts), Chiang and Solum offer a new perspective on claim construction. They argue that many courts that perform claim construction are not employing a single process but, rather, are in fact employing two distinct processes. First, there is interpretation, or the process of determining the linguistic meanings of words. For Chiang and Solum, linguistic meaning is entirely determined by the understandings of an audience, and it is therefore factual and objective. “The ideas and concepts that the intended audience will comprehend from a certain text is simply a fact of the world.” (P. 15.) Second, there is construction, or the process of imbuing claim language with legal import in order to achieve particular policy outcomes. For Chiang and Solum, any process in which courts consider the policy of optimal claim scope cannot be interpretation and must be construction. “[L]inguistic meaning is the domain of interpretation, and it is factual, and there is no ‘should’ in that question.” (P. 22.) “[L]inguistic meaning is beyond the control of, and thus not dependent upon, the normative preferences of a third-party interpreter such as a judge.” (P. 15.) For example, any attempt of a court “to tailor patent scope to the real invention” is an act of construction because it requires a court to consider normative, patent-policy concerns to identify the level of abstraction at which the “real invention” should be identified. (P. 4.) Continue reading "The Interpretation-Construction Distinction in Patent Law: Is It Just a Matter of Semantics?"

 
 

Medicare’s Design Flaw

Nicholas Bagley, Bedside Bureaucrats: Why Medicare Reform Hasn’t Worked, 101 Geo. L.J. 519 (2013).

Medicare is a behemoth. But the legal literature on it is almost negligible by comparison. Only a few scholars tackle Medicare broadly, like Ted Marmor, Tim Jost, and David Hyman. Most articles (like Jacqueline Fox’s two must-read articles on coverage decisions), tackle discrete problems with Medicare. And there is no shortage of those.

It takes a fair bit of pluck to confront Medicare’s design flaws, as Nicholas Bagley does in Bedside Bureaucrats. Bagley applies administrative law sensibilities to argue that Medicare can’t implement its programmatic goals in large part because it relies on decentralized administration by private insurance contractors and, more importantly, by hundreds of thousands of private physicians as “street-level bureaucrats.” Continue reading "Medicare’s Design Flaw"

 
 

Internal Reform of Islamic Family Law through Evolving Standards of…Religion

John Hursh, Advancing Women’s Rights Through Islamic Law: The Example of Morocco, 27 Berkeley J. Gender L. & Just. 252 (2012).

John Hursh’s recent article addresses reform of Islamic family law. This is an area of law that has long been constitutionalized in the Muslim world just as it has in the U.S.–most recently through the same-sex marriage decisions. Hursh explores how changes to family law in Muslim-majority contexts come about through “internal reforms” that may ameliorate certain gender disparities. Hursh is concerned with what we might call “evolving standards” of religion, an understanding of which would facilitate contextually salient, and therefore legitimate, reforms to Islamic family law codes. In other words, internal reforms to Islamic family law arise through shifting social-religious mores–which may, in legal terms, be thought of as an analog to American Eighth Amendment jurisprudence’s “evolving standards of decency.”1

His study comes at important time, when Egypt, Tunisia, and other post-uprising countries seek to create or reform family law and other state laws on the basis of Islamic law. Hursh emphasizes that, based on recent reform efforts elsewhere in the region, such religiously inflected legal systems need not be static or closed to reform. Namely, Hursh highlights possibilities and limitations for religiously informed law reform based on recent changes to the family law code in Morocco. Continue reading "Internal Reform of Islamic Family Law through Evolving Standards of…Religion"

 
 

Challenging Inequality in Credit Markets—Towards a Reconstituted Financial Subject

Gary Dymski, Jesus Hernandez & Lisa Mohanty, Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis, 19 Feminist Econ. 124 (July, 2013), available at SSRN.

Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis, by Gary Dymski, Jesus Hernandez, and Lisa Mohanty, is a reminder of the power that mainstream economic analysis wields to shape social understandings of inequalities in personal credit markets and the terms on which potential legal and regulatory solutions are debated. At the same time, the article exposes the inadequacy of mainstream economic analysis when dealing with important questions about financial subjects and their exploitation in subprime lending markets.

The authors ask: what is it about the circumstances of minority women and men that renders these financial subjects too risky for lenders to trust with the relatively safe and affordable credit supplied by mainstream personal finance markets and at the same time the sub-prime market’s preferred borrowers of risky, dangerous, and unaffordable loans? They ask also: why did the well-documented over-supply of credit at the turn of the 21st century fail to exert competitive downward pressure on the predatory pricing of the subprime mortgages marketed to minority households, particularly minority female-headed households? It perhaps seems odd that such crucial questions about the performance of subprime markets have received little attention in conventional economic accounts of the crisis. But, as noted in the article, their absence reflects economic analysis’s robust assumptions that markets are socially neutral institutions populated by financial subjects that are abstracted from relations of racialization, class, and gender. The centering of this ahistorical, pre-political disembodied financial subject within economic analysis then perpetuates the invisibility of systemic racialized and gendered inequalities in the law reform and policy debates that economics influences. Continue reading "Challenging Inequality in Credit Markets—Towards a Reconstituted Financial Subject"

 
 

Disruptive Contracting in Digital Music

Kristelia Garcia, Private Copyright Reform, 20 Mich. Telecomm. & Tech. L. Rev. (forthcoming 2013), available at SSRN.

Differential regulation of different technologies is baked into many of our laws, often on the basis of outdated assumptions, relative political power at the time of enactment, or other quirks. Internet exceptionalism is common, but perhaps nowhere more galling than as applied to music in the US, where the interests of terrestrial radio and music copyright owners combined to produce a regime so tangled that to call it ‘Byzantine’ is an insult to that empire.

Kristelia Garcia dives deep into the details of digital music law, focusing on two case studies that she finds promising and troubling by turns. While opting out of the statutory scheme may well be locally efficient and risk-minimizing for the participants, some of the gains come from cutting artists out of the benefits. Other third parties may also be negatively affected if statutorily set copyright royalty rates are influenced by these private deals without full recognition of their specific circumstances, or if adverse selection leaves the collective rights organizations (CROs) that administer music rights too weak to protect the interests of the average performer or songwriter. Garcia’s paper suggests both that scholars must keep an eye on business developments that can make the law on the books obsolete and that specific legal changes are needed to protect musicians, songwriters, and internet broadcasters as part of the dizzying pace of change in digital markets. Continue reading "Disruptive Contracting in Digital Music"

 
 

When the Government (Accidentally) Helps Criminal Markets

David Michael Jaros, Perfecting Criminal Markets, 112 Colum. L. Rev. 1947 (2012).

The relationship between antisocial behavior and criminal legislation seems straightforward. When people behave in undesirable ways, legislators respond by prohibiting that behavior and imposing punishments for transgressions: so far, so good. What if, though, these laws actually (though unintentionally) facilitated crimes? This counterintuitive idea is central to David Michael Jaros’s provocative article, Perfecting Criminal Markets. 

Under an economic approach, legislators deter crimes by creating potential punishments that outweigh any perceived benefit to the would-be criminal. In reality, though, the creation of these crimes results in the emergence of black markets, whether for illegal drugs, prostitution, or other prohibited goods and services. Thus, closing the border creates a market for human smuggling, and criminalizing the sale of certain drugs creates a black market for their purchase and sale. While the existence of criminal markets is well trod scholarly ground, Jaros offers a fresh insight about their operation. Criminal markets also create new opportunities and new markets for individuals that would not exist without the creation of the “first order” crime. The illegal immigration market leads to the smuggling of persons across the border, often in deadly conditions. The illicit drug market leads to the sale of fake illegal drugs and gun violence. A common legislative response to these “second order” problems—a new round of criminalization—creates a dilemma. Continue reading "When the Government (Accidentally) Helps Criminal Markets"

 
 

Taking Public Adjudication Seriously: Recognizing the Importance of Timing in Party Rulemaking

Daphna Kapeliuk & Alon Klement, Changing the Litigation Game: An Ex-Ante Perspective on Contractualized Procedures, 91 Tex. L. Rev. 1475 (2013).

Anyone caught up in litigation—whether lawyer or litigant—would situate the recent interest in party rulemaking within the larger debate over the merits of maximizing party choice in dispute resolution. They would focus on setting appropriate limits on the practice of party rulemaking in order to balance the benefits of increased efficiency for the litigants and the public with the risk of abuse and the potential for bringing the administration of justice into disrepute. This perspective on party rulemaking often leads to a further analysis of the value of game theory in illuminating and assessing the range of outcomes that can emerge depending on how party choice is confined.

In their article, Daphna Kapeliuk and Alon Klement (members of the Radzyner School of Law, Interdisciplinary Center, Herzliya) engage with the leading U.S. commentators in this area, most notably Robert Bone’s Party Rulemaking, Making Procedural Rules Through Party Choice. They take the analysis beyond the interests of litigants and others in the system to show how party rulemaking can have important public implications and can, in effect, ‘change the litigation game’ itself. Continue reading "Taking Public Adjudication Seriously: Recognizing the Importance of Timing in Party Rulemaking"

 
 

Stress Renaissance

Robert F. Weber, A Theory of Stress Testing of Financial Institutions as a Deliberative Exercise, University of Tulsa Legal Studies Research Paper No. 20013-01 (June 2013), available at SSRN.

Reading about the fatal flaws and failures of financial reform day in and day out can make you forget things. Like the actual contents of financial reform…and the fact that it is happening under our noses even as we curse statutory nonsense and the glacial pace of rulemaking. Robert Weber’s article on stress tests is a healthy reminder that financial regulatory methods have changed in important ways since 2008, and that we have a lot of figuring-out to do about them.

Stress tests in finance do three things. First, they help firms identify and manage risk from adverse shocks—a spike in interest rates, a collapse in housing prices, a sharp slowdown in economic growth, or a government debt default. Second, they help regulators judge the resilience of individual firms and financial systems. Third, they help communicate information about risk and resilience to the markets and to the public at large, as well as to narrower constituencies of financial firms and their regulators. Continue reading "Stress Renaissance"

 
 

Is There a Federal Eminent Domain Power?

William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L. J. 1738 (2013).

One of the most widely accepted truisms of American constitutional law is that the federal government has the power to condemn property through eminent domain. In modern times, even scholars and jurists who generally take a narrow view of federal power—myself included, until I read this pathbreaking article—did not question this idea. Yet, as William Baude shows, the conventional wisdom at the time of the Founding, and for many decades thereafter, was exactly the opposite: the federal government did not have the authority to condemn property within the territory of state governments. It could only do so in the District of Columbia and the federal territories. Baude’s research has important implications for the constitutional law of both federalism and takings.

Most students of takings law are aware that the Supreme Court did not rule that the federal government had the power of eminent domain until the 1875 case of Kohl v. United States. But Baude’s important work shows that that result was far from a foregone conclusion. Indeed, he argues that Kohl was wrongly decided. Continue reading "Is There a Federal Eminent Domain Power?"

 
 

The Challenge of Boilerplate

Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton University Press, 2013).

Although Margaret Jane Radin is perhaps best known for her work in property theory, she has recently been focusing her formidable intellect on questions of contract. Boilerplate reflects her first book length treatment of these topics, and there is much to like about this book. Here I will focus on one contribution that the book makes to normative jurisprudence, which is to clarify the centrality, pervasiveness (and perhaps even inescapability) of a specific problem for modern contract theory. The problem involves what I like to call a generalized lack of theory-to-world fit: if Radin’s arguments are valid, then a very broad range of modern contract theories are addressing the wrong subject matter, given the way that contracts increasingly work in the modern world.

That some market practices pose special problems for some theories of contract is, of course, no big secret. Rarely, however, is it acknowledged just what a general threat some prevalent practices pose to modern contract theory as a whole. For that defect, Boilerplate provides a timely and incisive cure. Continue reading "The Challenge of Boilerplate"

 
 

Jotwell Summer Break

Jotwell is taking a short summer break. Posting will resume on Tuesday, September 3.

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Does Congress Really Mean To Delegate Interpretative Authority To Agencies?

This coming year marks Chevron’s 30th anniversary. Westlaw reports that Chevron has been cited in over 66,000 sources, including in nearly 13,000 articles. Despite the ink already spilled, until now no one had empirically investigated the core assumption underpinning Chevron deference—that Congress actually intends to delegate interpretative authority to federal agencies when it leaves ambiguities in statutes the agencies administer.

Professors Abbe R. Gluck and Lisa Schultz Bressman recently sought answers to this question (and many others). They interviewed 137 congressional counsels, asking them 171 questions about the canons, legislative history, and administrative law doctrines. Their findings will appear in a two-part series in the Stanford Law Review.  The 125-page part one was just published, along with a methods appendix, and there is a lot to like about this piece. Continue reading "Does Congress Really Mean To Delegate Interpretative Authority To Agencies?"

 
 

What Casey Martin Has To Teach Us About Disability Discrimination In The Workplace

Nicole Buonocore Porter, Martinizing Title I of the Americans with Disabilities Act, 47 Ga. L. Rev. 527 (2013), available at SSRN.

For years, plaintiffs claiming discrimination under the Americans with Disabilities Act (ADA) routinely lost because they were unable to establish the existence of a disability. The result was that arguably the most important aspect of the ADA—the requirement that employers make reasonable accommodations to the known disabilities of their employees—went largely ignored in employment decisions and legal scholarship. All of that started to change with the passage of the ADA Amendments Act of 2008 (ADAAA). With the ADAAA, Congress expressly overruled some of the more restrictive interpretations of the definition of disability, thereby increasing the number of individuals who could claim protection from discrimination under the ADA. Congress was clear that this is the result it wanted and that the proper focus in ADA claims should not be on whether an individual has a disability, but whether the individual is qualified for the position in question, i.e., whether the individual can perform the essential functions of a position, with or without a reasonable accommodation.

Thus, the reasonable accommodation concept should increasingly take center stage in ADA cases. The problem, however, is that there has historically been so little focus on the concept in the employment context that there is considerable uncertainty as to what it means to say that an accommodation is or is not “reasonable.” Judge Richard Posner famously advanced a cost-benefit approach to the question of reasonableness, but his approach has had limited traction. Some judges have taken a case-specific, “I-know-it-when-I-see-it” approach, which leaves parties and their lawyers with little guidance. Nicole Buonocore Porter (Toledo) aims to address the problem of defining reasonableness in the accommodation context in her latest article, Martinizing Title I of the Americans with Disabilities Act. Continue reading "What Casey Martin Has To Teach Us About Disability Discrimination In The Workplace"

 
 

Taxes and Brains

Adam Chodorow, Death and Taxes and Zombies, 98 Iowa L. Rev. 1207 (2013), available at SSRN.

Taxes and brains—or rather, braaaaaaains—have always gone well together, but never quite like this. The income tax and the estate tax present intricate mechanisms for levying assessments on the living and the dead. In Death and Taxes and Zombies, Professor Chodorow turns his attention to the middle of this Venn diagram: the undead. The article reveals that Congress and the IRS have utterly failed to address this topic, creating significant uncertainty as to how the tax laws would apply in the event of a zombie apocalypse.

The article leads the reader through a series of ordinary tax and legal scenarios and applies them to extraordinary circumstances. How do states address the question of what it means to be legally dead? When does federal law trump state law for purposes of determining whether an inheritance has passed? What constitutes taxable income? What are relevant valuation dates when property is transferred, and how are the basis rules applied in the context of transfers from a decedent? What are the loopholes in the estate tax and the income tax? And more important, how do these rules apply to zombies? Continue reading "Taxes and Brains"

 
 

Avoiding Liability But Not Tort

Gideon Parchomovsky and Endre Stavang, Contracting Around Tort Defaults: The K4K Principle and Accident Costs (working paper, 2013), available at Docstoc.

When two sophisticated parties jointly decide that, in the case of accident, each will bear its own costs and insure against its own losses, why should anyone care? The Restatement Third of Torts, for one, does not. Restatement Third of Torts: Apportionment of Liability §2 (1999) (“When permitted by contract law, substantive law governing the claim, and applicable rules of construction, a contract between the plaintiff and another person absolving the person from liability for future harm bars the plaintiff’s recovery from that person for the harm.”). In their article, Contracting Around Tort Defaults, Gideon Parchomovsky and Endre Stavang, however, sound a cautionary note about potential social costs of private contractual agreements to opt out of tort liability. If potential tort liability prods actors to adopt socially optimal levels of precaution, when parties disclaim that liability through contract, will actors “under-invest in precaution and fall short of the optimal level of care,” with deleterious impacts not on the contracting parties themselves but on third parties? In short, will we have less tort liability but more tort?

The backdrop for Parchomovsky and Stavang’s question is an important one—oil and gas industry contracts that pervasively opt out of the tort system through a broad system of exculpatory agreements, sometimes referred to as “knock for knock” clauses. Courts determining the applicability of these agreements often focus their inquiries on the intent of the contracting parties to waive liability for negligence. Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789 (Tex. 2012), opinion supplemented on reh’g (Mar. 29, 2013) (“In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument.”) Parchomovsky and Stavang’s critique suggests that  the effects of waivers on nonparty potential victims should also be taken into account. Could the industry’s pervasive system of exculpatory clauses, which ensures that liability falls short of even the cost of physical harms from negligently caused accidents, have caused insufficient industry precautions and led to major accidents like the Deepwater Horizon spill? While the authors don’t offer a definitive answer, they do identify the potential for industry contracts to result in moral hazard problems and suboptimal precautions  which increase hazards to third persons. Continue reading "Avoiding Liability But Not Tort"

 
 

What Legal Scholars Need to Know About Economic Research on Taxation: The Evidence Thoroughly Debunks the Conventional Wisdom

Peter Diamond & Emmanuel Saez, The Case for a Progressive Tax: From Basic Research to Policy Recommendations, 25 Journal of Economic Perspectives 165 (Fall 2011).

Too often, policy research relies more on the misleadingly elegant results of economic theory than on actual evidence. Tax policy discussions, as I will describe below, are especially prone to being infected by this evidence-free approach to analysis. Fortunately, two of the best public finance economists in the world, Peter Diamond and Emmanuel Saez, have recently provided a much-needed antidote: The Case for a Progressive Tax: From Basic Research to Policy Recommendations. To understand just how important their article is, it is necessary to appreciate the deep roots of the problem that their article addresses.

As an economics graduate student, and later as a young economics professor, I often felt a deep sense of unease about the disconnect between economic theory and the empirical research that was relevant to evaluating that theory. Overwhelmingly, we learned in classes (and from theoretical scholarship) a series of “known results” that followed from the manipulation of economic models—results that, however nicely derived from the assumptions of those models, either were not backed up by any empirical research, or the magnitude of which turned out to be quite trivial. Continue reading "What Legal Scholars Need to Know About Economic Research on Taxation: The Evidence Thoroughly Debunks the Conventional Wisdom"

 
 

From Status to Mobility: On Gender and Global Lawyering

Steven A. Boutcher and Carole Silver, Gender and Global Lawyering: Where Are the Women?, Ind. J. Global Legal Stud. (forthcoming 2013), available at BePress.

Globalization has been a hot topic for the legal profession for many years, but analysis of global law firms has mostly ignored something increasingly conspicuous in research on domestic law firms: gender. When I was doing fieldwork in American law firms’ China offices 5-6 years ago, I could not help but notice a fascinating phenomenon: most of these offices were staffed by an overwhelmingly large proportion of female lawyers, usually at the level of associates and legal assistants. This was in sharp contrast to the situation in Chinese domestic law offices, where women accounted for less than 20% of the lawyer workforce (see Ethan Michelson’s paper on gender inequality in the Chinese legal profession). I have been thinking about this puzzle for years and pondered some possible explanations, until I read the path-breaking article that Steven Boutcher and Carole Silver recently wrote on gender and global lawyering.

In this article, Boutcher and Silver ask a basic question: Does globalization affect women differently than men in terms of status attainment in the law firm? The answer, not surprisingly, is yes, but the interesting part is how, and how much it varies from one place to another. Based on an original dataset of a sample of 55 U.S.-based law firms with overseas offices collected by Silver, Phelan, and Rabinowitz in 2006-2007, the authors examine the distribution of 6,211 lawyers in a total of 243 offices in seven different jurisdictions, namely, Belgium, China (mainland), England, France, Germany, Hong Kong, and Japan. The article classifies lawyers according to three variables: gender (male and female), education and licensing (local lawyers, U.S. expats, and other expats), and status in the law firm (partners, associates, and counsel). Then it uses a number of crosstabs to compare the status of men and women across jurisdictions, focusing on the issue of partnership. Continue reading "From Status to Mobility: On Gender and Global Lawyering"

 
 

Mistake of Fact, Moral Justification, and Justificatory Defenses in Law

Re’em Segev, Justification Under Uncertainty, 31 Law and Philosophy 523 (September 2012), available at SSRN.

In this article, Segev defends a sophisticated analysis of the pro-tanto justification of actions taken under uncertainty (more precisely, with “partial information”) in both morality and law. Applied to law, Segev’s analysis challenges some mainstream views.

Here’s the puzzle and Segev’s starting point: Thanks to mistake of fact, an action may appear “subjectively justified” but not “objectively justified,” and vice versa. A moral agent has a false but epistemically justified belief about a relevant non-normative fact; and if that belief had been correct, the action would have been (objectively) justified under a correct norm. Some would say that the act is subjectively justified, nonetheless. An action is objectively justified—the agent correctly acted according to a correct norm—but the action is not subjectively justified, given the agent’s epistemically justified (but false) belief about a relevant non-normative fact. In either case, was the agent’s act really justified? The answer provided by an objective conception of justification under uncertainty appears to conflict with that produced by a subjective conception. Segev denies the conflict. He holds that the question is ambiguous; its answer depends on which “aspect” of the relevant normative standard the question concerns. Continue reading "Mistake of Fact, Moral Justification, and Justificatory Defenses in Law"

 
 

The State Origins of Federal Plenary Power

Where does federal plenary power over immigration come from? For a long time now, scholars have pinpointed the definitive starting point in the 1889 Supreme Court case of Chae Chan Ping v. U.S. (aka The Chinese Exclusion Case), which announced that immigration control was “an incident of sovereignty” and thus a matter for Congressional—not state or judicial—power. In an excellent new article, historian Hidetaka Hirota challenges this basic assumption. He argues convincingly that federal plenary power arose not only from the Court’s reading of international and constitutional law, but also from a long history of state practices of migrant policing and control. The federal government took political, administrative, and procedural cues from the state immigration regimes that predated Chinese Exclusion, particularly those in the influential states of New York and Massachusetts.

Hirota is not the first to look at state immigration power. As he acknowledges, Gerald Neuman and Kunal Parker have done foundational work in this area, exploring the ways that state regulation of the poor and of fugitive slaves served as precursors to federal immigration control. Hirota’s focus is on the ways that states dealt with foreigners arriving from Europe in ports along the Atlantic coast. The border that mattered in this period was a coastal one, not a land border. With no modern visa system in place, state officials had no control over who would seek to land on their shores. Hirota recounts how the Atlantic seaboard states developed a comprehensive approach to preventing or limiting the migration of the poor, as well as removing them after entry if necessary. State officials created boards of immigration to oversee efforts and devised systems of bonds and taxes. Ship captains who brought passengers who were “likely to become permanently a public charge” had to supply bonds in the event that a passenger required poor relief. If the ship companies did not provide the bonds for those passengers, state officials would prohibit the passengers in question from landing. Ship companies would have to return the passengers to Europe on their own dime. States also charged a head tax (in lieu of bonds or in combination with them), which was a fee on all healthy passengers. This was used to offset the cost of receiving destitute passengers. Of course, these taxes would give rise to the Passenger Cases in 1849 and to Henderson v. New York in 1876. In combination, these cases greatly limited the states’ power to tax passengers, based on the Supreme Court’s interpretation of the Commerce Clause. Continue reading "The State Origins of Federal Plenary Power"

 
 

Unauthorized Improvement Across Property Law

Deepa Varadarajan, Improvement Doctrines, 41 Geo. Mason L. Rev. (forthcoming 2014), available at SSRN.

Scholars often debate whether intellectual property really is property at all. This is far more than just a descriptive inquiry. Asking how law regulates tangible and intangible goods differently can deliver valuable insights about the optimal governance of real property and chattels, patents and copyrights. Deepa Varadarajan’s engaging piece, Improvement Doctrines, forthcoming in the George Mason Law Review, represents an important contribution to the growing literature about what property and IP can help us learn about one another. Improvement Doctrines focuses on the fascinating but underappreciated body of doctrines in physical property law that favor—and sometimes entirely excuse—trespass and conversion that is done in good faith and that adds significant value to the res. Professor Varadarajan’s article then uses these improvement doctrines as a lens though which to analyze intellectual property’s relatively anemic attempts to take account of improving but unauthorized uses of patented inventions and copyrighted works of authorship. In so doing, Improvement Doctrines identifies and illuminates a series of fascinating problems that span both physical and intellectual property law.

Professor Varadarajan’s article begins with physical property’s improvement doctrines and moves into an investigation of unauthorized improvement in intellectual property law. In so doing, though, it neither assumes that tangible and intangible property law must mechanically mirror each other, nor insists that the differences between corporeal and incorporeal goods render any such extrapolations useless. Rather, Improvement Doctrines’ primary analytical driver is its thoughtful synthesis of the efficiency and equity rationales underlying ameliorative waste, accession, adverse possession, and mistaken improvement of land. This discussion alone yields a number of valuable insights, such as the creative point that adverse possession warrants categorization as an improvement doctrine even though its substantive law does not require enhancements to land. Continue reading "Unauthorized Improvement Across Property Law"

 
 

Finding a Positive Right to Healthcare

A wealth of formidable scholarship has weighed in on the constitutionality of the two aspects of the Patient Protection and Affordable Care Act that were at issue in NFIB v. Sebelius (which recently celebrated the anniversary of the historic decision), and so it can be hard to find a new perspective on either the statutory and constitutional aspects of the ACA. Nevertheless, Professor Rubin has furnished a fresh take by proposing that the ACA expresses a legislative interpretation of positive constitutional rights that articulates a right to healthcare in the United States.

The article begins by positing that the ACA faced an impassioned resistance movement because the law represents a sea change in the way we “think about American citizenship and the nature of our political community.” To prove this point, Rubin offers a consideration of the nature of the Constitution by working through its historical and philosophical origins. The first part may test the endurance of those not in the business of constitutional theory, but stick with it, because the payoff is a theory worth understanding—that the government serves the people, that a constitution is designed to be an instrument that implements the goals of the people, and that the goals of the people reveal themselves to be the “strengthening of the national government, liberty, and equality.” Importantly, this means that the Constitution must serve not only the people who drafted the text but also the subsequent generations bound by the original document’s terms. For this to be true, the meaning of the document cannot be fully understood at its drafting, because every generation will have a hand in its interpretation by acting pursuant to the principles of the document as they become meaningful in a given era. Rubin argues that this purposive view of the Constitution alters the constitutional significance of legislation, because legislation reveals the meaning of the constitution to the people living by the document in their time. Continue reading "Finding a Positive Right to Healthcare"

 
 

The Trouble with Heuristics in Sexual Harassment Litigation

Jessica A. Clarke, Inferring Desire, 63 Duke L.J. (forthcoming 2013), available at SSRN.

Fifteen years ago, the Supreme Court recognized that harassment between members of the same sex could be actionable under Title VII, in Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80 (1998). Prior to that case, lower courts had struggled to determine whether such intra-group harassment could be because of sex. In its decision, the Supreme Court identified several heuristics, or evidentiary shortcuts that could be used to support an inference that the harassment was because of sex, including that the harasser was gay. If the harasser were gay, we could infer that the harasser desired the plaintiff sexually, and could further infer that the harasser would not have treated a member of the opposite sex the way the harasser treated the plaintiff. Focusing on this heuristic, Jessica Clarke’s new article, Inferring Desire, is an important contribution to the literature on sex discrimination, not only in this context, but also more broadly. In the article, she studies all of the same-sex harassment cases that have resulted in opinions since Oncale was decided. The article’s primary focus is on the large number cases in which the courts attempt to infer the sexual orientation of the harasser as part of the analysis, focusing on desire to the exclusion of other ways to prove that the harassment is because of sex. Clarke’s study reveals that the courts seem to posit an idealized romantic version of same-sex desire that privileges heterosexuality and camouflages sexism.

The article begins by explaining how the sexual orientation and desire heuristics work. As Clarke notes, the Supreme Court defined the critical issue in sexual harassment cases to be “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” It further outlined some ways this could be proven including that proposals of sexual activity could demonstrate the different treatment if “there were credible evidence that the harasser was homosexual,” and thus presumably motivated by sexual desire that would operate differently on the sexes. Although this was not the only route to proof of sex-different treatment, Clarke found that courts had relied on desire in allowing plaintiffs to proceed past summary judgment more often than all other reasons combined. Moreover, the courts conflated homosexuality with desire in most of those cases, which meant that they often engaged in extended analysis of the sexual orientation of the harasser. Continue reading "The Trouble with Heuristics in Sexual Harassment Litigation"

 
 

Elderlaw As Family Law

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

How do American law and culture accommodate the fact that old age is almost everyone’s fate, and that—though we know for sure that it ends at last in death—its course and the kinds of dependency it brings are so profoundly unpredictable and often categorically intense?  In this brilliant, grimly humane page-turner of a book, Hendrik Hartog lays out three different historical periods marked by very different answers to this question.

Before the rise of a market economy in the middle of the nineteenth century, old people were cared for and died in their households, surrounded and aided by relatives and, if they had them, servants or slaves.  But as the master/servant relation was replaced by employment in the rapidly industrializing private sphere, and as the household nuclearized into the husband/wife, parent/child family, this ready-to-hand supply of helpers dwindled, often disappearing entirely.  In response to these changes, old people who had property started promising to bequeath it to children, other family members, and even housekeepers in exchange for their staying at home and devoting themselves to filling what we would now call the care gap. Continue reading "Elderlaw As Family Law"

 
 

The Global Problem of Women’s Equality

That we are still strategizing how to achieve gender equality—the equality of women’s constitutional and legal status, social and economic opportunities, and daily realities with those of men’s—is the perplexing truth at the heart of Penelope Andrews’ important book, From Cape Town to Kabul. Known for her work on South Africa and legal feminism, Andrews here posits questions about how gender equality can be achieved on a global scale. She offers no easy answers or totalizing theories, but proposes a notion of “conditional interdependence” as a method of situating women within their various cultures as a way to move forward with the project of equality. It’s a concept that could go far in resolving some of the thorniest arguments about “choice” and “autonomy” that permeate questions of women’s equality.

At its most hopeful, Andrews’ book presents the struggle for equality in South Africa as it was mounted against the Apartheid state, resulting in a new constitutional regime devoted to transformative law and politics. Andrews attributes the fact that this transformation included gender equality to a confluence of forces, but most importantly women’s participation. She suggests that the path chosen by South Africa is a model for many other nations, stressing that the involvement of women at all levels and phases is vital. Continue reading "The Global Problem of Women’s Equality"

 
 

How Much Information Can Government Collect to Protect National Security?

The recent revelations about the National Security Agency’s dragnet surveillance programs highlight three significant developments that have occurred in the national security domain in the past decade. First, the most significant foreign threats to national security are no longer nation-states but individuals armed with powerful weapons who operate independently of any country. Second, technology has vastly enhanced the government’s capacity to discover and prevent these threats. Third, technology has also both reduced individual privacy and conditioned people to surrender it without qualms.

These three developments, Simon Chesterman argues in One Nation Under Surveillance, mean that regulation of intelligence agencies needs to be rethought. While the traditional civil libertarian efforts to limit camera surveillance, data mining, biometric identification, and other types of intelligence gathering are “worthy,” he says, ultimately they are “doomed to failure because modern threats increasingly require that governments collect [such information], governments are increasingly able to collect it, and citizens increasingly accept that they will collect it.” Instead, Chesterman argues, governments should concentrate on regulating the use of the intelligence it collects, pursuant to publicly debated laws that provide a transparent framework for making decisions about how and when to disseminate the information obtained. As the subtitle suggests, this regime can be seen as a form of “social contract” in which citizens grant access to information about them in return for “a measure of increased security and the convenience of living in the modern world.” Continue reading "How Much Information Can Government Collect to Protect National Security?"

 
 

The Sublime Dworkin

Ronald Dworkin, Religion Without God, New York Review of Books, April 4, 2013.

Ronald Dworkin’s death in February, at the age of 81, was surely a deep personal loss for those who knew and loved him, and marked the end of an epoch, an after-the-fact close to the late twentieth century, in liberal legal thought. The loss was of less moment, perhaps, to current work in constitutional law and theory. Dworkin’s missiles against the current Supreme Court, which continued to land in the pages of the New York Review of Books, were more than merely transatlantic missiles; they seemed to have been launched from another time and place altogether. Still, until the end, he wrote with grace, clarity, and an air of authority. I’m grateful that what appears to be his last major work was in one of my own areas of interest, the relationship between law and religion.

One of the bigger-picture theoretical questions that seems to have sparked renewed interest in this field is whether “religion”—whatever that is—is “special” for constitutional purposes. That question has been raised in a variety of ways. Chris Eisgruber and Larry Sager have asked, from an egalitarian perspective, whether religious claims can be set apart from claims of conscience. Both Brian Leiter and Micah Schwartzman have questioned from a philosophical perspective whether the distinctive treatment of religion is capable of coherent justification. Others, such as Caroline Mala Corbin and Nelson Tebbe, have approached things from a different but complementary position, asking whether nonbelievers are unfairly disadvantaged in the current legal regime. And religion’s specialness, as an intrinsic matter or for more earthbound legal purposes, has its defenders, too, prominent among them such writers as Michael McConnell and Andy Koppelman. It’s a question that certainly has an air of the abstract, but it has important implications for Religion Clause doctrine. Continue reading "The Sublime Dworkin"

 
 

The Nature of Law: Essential vs. Important

Frederick Schauer, On the Nature of the Nature of LawArchiv für Rechts- und Sozialphilosophie (ARSP), Vol. 98, pp. 457-467 (2012), available at SSRN.

At the heart of analytical legal philosophy are theories about the nature of law. In recent decades, there has been a growing convergence around the conclusion that theories about the nature of law (like those of H.L.A. Hart and Joseph Raz) are conceptual analyses, determining the “essential” or “necessary” characteristics of the concept of law. (The debates about the proper way to understand theories about the nature of law are summarized in Brian Bix, Joseph Raz and Conceptual AnalysisAPA Newsletter on Philosophy of Law, Vol. 6(2), Spring 2007, available at SSRN.) Against this background, Frederick Schauer, in a number of important recent articles, including On the Nature of the Nature of Law, has argued that legal theorists should focus more on “the typical truths” of law, even if this is different from the list of its “essential characteristics.”

To explain: the “essential” or “necessary” characteristics of law are those characteristics that make it “law,” the characteristics without which it would not be “law.” These characteristics will be present (by definition) in all legal systems, present, past, future, or hypothetical. Claims of which characteristics are “essential” or “necessary” are claims about our concepts, not (or at least not primarily) falsifiable claims about the world independent of those concepts. (The role of “necessity” in philosophy generally and in legal philosophy in particular is a large topic that would take us too far afield. I discuss the topic in Raz on Necessity, 22 Law and Philosophy 537 (2003), also available at SSRN.) Continue reading "The Nature of Law: Essential vs. Important"

 
 

Law And The City

Mariana Valverde, Everyday Law on the Street: City Governance in an Age of Diversity (University of Chicago Press, 2012).

When I was growing up in Chicago in the 1970s, I obsessed about Jane Jacobs’ Death and Life of Great American Cities (1961). The book captured much about what I loved about living in the city: The differences one discovered walking down that street instead of this one, the various faces a single block could present at different moments of the day, the way the little independent stores that sold small market journals or Asian specialties butted up against the more generic stores that sold the Snickers bars and Dr. Peppers that I lived on in high school. But there were also things about Chicago that the book did not address: The fact that there were areas not far from my home that I could not go into as a white teenager and other areas that my classmates could not go as teenaged blacks. The way that those spaces were defined as much by the city government’s decisions not to enforce laws or to fail to enforce laws equally, as they were by local preferences. The fact that Chicago’s neighborhoods, and the racial tensions between them, were defined as much by choices to ignore federal laws against redlining, racial steering, or housing discrimination as they were by community norms. And, finally Jacobs’ celebration of the local did not capture the extent to which the struggles over those problems were defined by national, and sometimes even international, debates.

I started reading Mariana Valverde’s recent book, Everyday Law on the Street: City Governance in an Age of Diversity (2012), a study of street-level urban governance in Toronto, because it promised a law and society alternative to Jacobs’ work. But while I came, so to speak, for the law and society recasting of Jacobs, I stayed for the reminders her work offers legal historians. Continue reading "Law And The City"

 
 

Assessing Agency Legitimacy

David Markell and Emily Hammond Meazell, Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, 37 Harv. Envtl. L. Rev. (forthcoming 2013), available at SSRN.

The great question underlying American administrative law is that of agency legitimacy. Administrative agencies, whose heads don’t answer to the voters and whose decisions for the most part are not subject to effective popular checks, have dubious democratic bona fides. Where do they get off, then, mandating rules of conduct and imposing punishments backed up by the coercive power of the state? A crucial part of the answer, in American administrative-law thinking, has rested on the institution of judicial review: We can trust agencies to exercise their delegated authority, the classic argument runs, and we can treat that authority as legitimate, because we can rely on courts to take action if the agencies step out of line.

But as administrative-law scholars well know, the judicial-review focus has limitations. David Markell and Emily Hammond Meazell, in their paper Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, note that few administrative decisions ever go before a court. Judicial review of most agency decisions is neither cost-effective nor practical; review of others is precluded by law. This, the authors urge at the beginning of their paper, is one of the “great paradoxes of administrative law,” raising the question, “What else is there to legitimize unreviewable agency action?” Continue reading "Assessing Agency Legitimacy"

 
 

Opinions, Briefs, And Computers—Oh My!

Research on the federal courts often follows this basic pattern: 1) identify issue (often made salient because of a recent Supreme Court case); 2) analyze federal court opinions for cases relevant to that issue; and 3) write article. This process, which we might label “issue analysis,” has served, and will continue to serve, legal scholarship well. Issue analysis is very effective for evaluating and analyzing court handling of specific doctrines, statutes, and regulations. Less frequently, federal courts scholarship seeks to identify larger, often comprehensive, theories of how judges and courts behave, which we might label “behavior analysis.” Such endeavors can apply to the hundreds of thousands cases filed each year in the federal courts. As a result, researchers face significant problems not normally associated with issue analysis, including cherry picking suitable examples, confirmation bias, and inadequate treatment of contrary evidence. Empirical methods are a logical way to deal with those concerns, but publicly available datasets are few and human coding of legal documents can be extremely labor intensive and costly. Thankfully, these problems can be significantly curtailed by using computer-aided content analysis to evaluate large pools of cases.

Chad Oldfather, Joseph Bockhorst, and Brian Dimmer have published a wonderful article, Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship, which illustrates exactly how such research should proceed. The research question they address is a very basic one: how do party briefs affect judicial opinions? One might think such a core question of litigation would have been addressed by numerous studies. However, as the authors rightly explain, the methods for addressing such a question are prone to the classic concerns with using behavior analysis. As a result, there simply has been no tested general theory of how briefs affect judicial opinion writing. Continue reading "Opinions, Briefs, And Computers—Oh My!"

 
 

A Fresh Look at Dukes

Natalie Bucciarelli Pedersen, The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, 44 U. Tol. L. Rev. 123 (2012) available at SSRN.

The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, by Natalie Bucciarelli Pedersen—aside from having quite possibly the best title of any article, ever—is an important and informative reminder that one of the most newsworthy and talked about cases of the past decade, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has import and significance beyond the realm of class action lawsuits. Indeed, as Professor Pedersen makes clear, the Supreme Court “not only reversed the grant of class certification to one of the largest employment discrimination classes ever, but also indelibly altered the substance of employment discrimination law.” (P. 124.) The major contribution of this article is its original examination of the impact of the language and law in the Dukes opinion on substantive Title VII jurisprudence as it applies to the adjudication of disparate impact cases, systemic disparate treatment cases, and implicit bias cases that utilize social framework evidence.

As Professor Pedersen recounts, in 2011, the Supreme Court reversed a grant of class certification to some 1.5 million female Wal-Mart employees who claimed that they were victims of sex discrimination because of inequalities related to the employer’s salary, promotion, and management track policies and procedures. The policies and practices alleged, however, were not explicitly discriminatory. In making out their disparate impact claim, the plaintiffs pointed to the delegation of decision-making discretion to local managers when it came to pay and promotion decisions. In making out their disparate treatment claim, the plaintiffs alleged that despite knowing of the disparate impact conferred upon women by the unfettered discretion afforded to local managers, Wal-Mart intentionally failed to remedy the situation. The District Court certified a class of at least 1.5 million women, and the Ninth Circuit agreed that the class certification requirements set forth in Federal Rule of Civil Procedure 23(a) had been met. The Supreme Court, however, reversed the Ninth Circuit’s holding that class certification had been appropriate in the case, finding that the plaintiffs did not “depend upon a common contention.” (P. 128.) Continue reading "A Fresh Look at Dukes"

 
 

The Exceptional Case of Parental Negligence

Elizabeth G. Porter, Tort Liability in the Age of the Helicopter Parent, 64 Ala. L. Rev. 533 (2013).

Recently, there has been a flowering of family law scholarship critically examining what Janet Halley calls “family law exceptionalism,” the tendency in the law to treat the family as a special realm wholly divorced from market relations and to steer family matters, regardless of their economic nature, into family law. Although she never uses the term “family law exceptionalism,” Elizabeth Porter’s new article on parental immunity and negligent supervision cases follows in this vein. The article is an indictment of what she regards as the exceptionally favorable treatment of parents under current tort law. Professor Porter argues for ending the special rules favoring parents, applying ordinary negligence principles in parental liability cases, and ultimately sending more cases to the jury.

As Porter reminds us, it is a particularly appropriate time to re-examine the rules governing parental liability. On the cultural front, the steady stream of tragic cases (whether Newtown, Columbine or countless accidental shootings) has reignited perennial questions about the extent  of parental responsibility to control  dangerous children and whether parents should be held accountable to victims for their failures as parents. On the doctrinal front, the new approach to duty endorsed by the Restatement (Third) of Torts—which calls for presuming a general duty of care and abandoning that presumption only in exceptional cases when there are strong countervailing reasons of principle or policy— has the potential to reopen questions about the scope of parental liability.. Porter’s article suggests that if courts heed  the Third Restatement they may  well conclude that parental liability  cases are not so exceptional after all, ushering in what would be a major, very concrete change in tort doctrine. Continue reading "The Exceptional Case of Parental Negligence"

 
 

Rules or Standards For Intestate Succession?

Intestate succession law has traditionally been directed toward accomplishing two objectives: effectuating the likely intent of intestate decedents and minimizing administrative costs. Within the so-called “traditional” family, those objectives are rarely at odds. As a result, intestate succession law has traditionally been relatively simple: the decedent’s property is distributed to the decedent’s spouse and issue, and the only areas of controversy surround how much the spouse should take, and whether distribution to issue should be per stirpes, per capita, or by the UPC’s more refined “by representation” scheme.

In her recent article, however, Professor Susan Gary identifies the growing complexity in intestate succession law. That complexity is a response to increasing recognition that intestate succession statutes designed for the traditional family often frustrate the intent of decedents whose family is not traditional. To deal with non-traditional families, Professor Gary notes that a number of states have attempted to bring domestic partners, children born through assisted reproduction, stepchildren, and even informally adopted children within the intestate succession scheme, and cites a variety of scholarship supporting this expansion. Similarly, she identifies statutory provisions designed to disinherit intestate heirs when it would appear that the decedent would not want those heirs to take; in addition to slayer statutes, she discusses cases of child or spousal abandonment, and cases of elder abuse. These refinements of more traditional intestate succession statutes presumably increase the number of cases in which intestate succession doctrines effectuate the intent of intestate decedents, but, as Professor Gary observes, they are not perfect; they do not anticipate all of the circumstances in which a decedent might want to vary the most common patterns of distribution. Continue reading "Rules or Standards For Intestate Succession?"

 
 

Trade, Currency, and International Cooperation

It’s always nice when you can combine outside reading for fun with something that is educational and at least indirectly professionally relevant.  Benn Steil’s economic and diplomatic history of the 1944 Bretton Woods conference, which established the post-World War II global framework for currency relationships and international trade (while also creating the International Monetary Fund and the World Bank) filled this niche for me during a quiet weekend.  While the subject is not literally or directly related to taxation, it touches so closely on finance, macroeconomic policy, and international trade as to occupy a common universe with overlapping concerns.

The book tells a lively story, in which U.S. Treasury economist Harry Dexter White – an ardent economic nationalist yet also a Soviet mole – thoroughly squelched the great English economist John Maynard Keynes (the U.K.’s chief negotiator) in establishing the postwar regime for trade, currency, and capital flows.  With the U.S. economically dominant and the U.K. reduced to begging for loans, Keynes would have had no chance even had he been better at converting his analytical and epigrammatic skills into diplomatic ones. Continue reading "Trade, Currency, and International Cooperation"

 
 

Re-Conceiving The Lawyer’s Role And The Foundations of Legal Professional Ethics

W. Bradley Wendel, Lawyers and Fidelity to Law (Princeton University Press, 2010).

In the 1970s and 80s, a significant debate emerged around the role played by lawyers. Based on the American Bar Association model code, associated documents and case-law, several moral philosophers, and a few lawyers, characterised legal representation as comprising two overarching principles.1 The principle of neutrality, they said, demanded that lawyers represent clients or causes they may disagree with morally. The principle of partisanship demanded that they fulfil their client’s wishes to the limits of the law. Provided they fulfil these tasks faithfully, they were morally absolved on the grounds that the role they perform is itself good. This constituted a third principle: non-accountability.

Numerous critics of this ‘standard conception’ of the lawyer’s role found it morally indefensible. Despite some spirited justifications2 and more nuanced rejoinders,3 the balance of debate moved on to the consequences of such a conclusion and the steps that should follow. At one end of the spectrum lay measures such as encouraging lawyers to select clients on moral grounds. The middle ground was occupied by proposals that lawyers have discretion to ignore ethical norms producing immoral outcomes. More radical solutions involved abandoning the adversarial system or the de-professionalization of lawyers. Wendel is one of many scholars who, often in book form, have recently revisited the issue of the standard conception of the lawyer’s role.4 Continue reading "Re-Conceiving The Lawyer’s Role And The Foundations of Legal Professional Ethics"

 
 

Colonizing Humanity

Samera Esmeir, Juridical Humanity: A Colonial History (Stanford University Press, 2012).

Samera Esmeir’s ambitious book, Juridical Humanity: A Colonial History, explores the legal transformation of British-ruled Egypt between the 1880s and the 1930s. With news from Egypt the subject of daily headlines, the book is timely and important. However, it is Esmeir’s innovative treatment of her subject that truly makes this book deserving of the widest readership. In contradistinction to a powerful tradition of writing about colonialism, Esmeir sees in the legal colonization of Egypt not the occlusion of Egyptians’ intrinsic humanity, but instead the instantiation of “humanity” as the object of colonial law’s solicitude. This is the “juridical humanity” of the book’s title.

Naming “humanity” as its teleology, Esmeir argues, colonial law sought to reconfigure Egyptian society according to “humanity”’s logic. The pre-colonial legal tradition, one with which the overwhelming majority of Egyptians identified, came to be roundly dismissed as inhuman, barbaric, and violent. With the goal of “humanizing” Egyptian society, colonial law reconfigured Egyptian social relations in a range of contexts: labor, gender, incarceration, the treatment of animals, and so on. European and Egyptian legal elites participated enthusiastically in this “humanizing” project. As Esmeir skillfully shows, however, the effect was not to rid Egyptian society of violence, but rather to produce a different relationship to violence: one that carefully measured, calibrated, and fitted violence to the imperatives of “humanity.” It is hard not to recognize in Esmeir’s account the pre-history of the human rights-led imperialism of our own day, with its lurid depictions of various social oppressions in the non-Western world that legitimize Western military intervention. Esmeir clearly has this in mind. Continue reading "Colonizing Humanity"

 
 

Knowing a New Business Model When You See It: Adult Entertainment Innovations And Adaptations in a Post-Napster Era

Kate Darling, What Drives IP without IP? A Study of the Online Adult Entertainment Industry, (February 1, 2013), available at SSRN.

Throughout media history, purveyors of illicit content have always had to think on their feet when faced with economic or legal dilemmas. Never the darling of regulators, law enforcement, or public representatives, adult entertainment companies have pretty much been left to their own devices for dealing with new challenges. It comes as no surprise, then, that in a post-Napster era of expansive networks, easy copying, and free content, porn producers must rethink how they approach their products and profitability.

In her excellent article, What Drives IP without IP? A Study of the Online Adult Entertainment Industry, MIT Research Specialist Kate Darling investigates the current state of the American sexual expression industry to sort out the various perspectives and approaches its players are taking to the shifting ground they currently tread. What she finds is both an affirmation of numerous common sense intuitions (e.g., that porn producers rely less on copyright enforcement and more on lower costs, higher video quality, content curation, and targeted marketing to maintain market share), as well as some surprising discoveries (e.g., that “experience goods” such as live interaction, gaming, and 3D are becoming a staple for building solid online brands). Continue reading "Knowing a New Business Model When You See It: Adult Entertainment Innovations And Adaptations in a Post-Napster Era"

 
 

Healthism, Health Care Rights, and the Affordable Care Act

Jessica L. Roberts’s recently published article, “Healthism”: A Critique of the Antidiscrimination Approach to Health Insurance and Health-Care Reform, offers a provocative, thoughtful rebuttal to the antidiscrimination rhetoric surrounding the Patient Protection and Affordable Care Act (“ACA”). Some of the ACA’s most popular reforms, namely, the ban on preexisting condition exclusions, guaranteed issue and renewal, and community rating were touted as eliminating insidious health insurance industry practices that—in then-candidate Obama’s words—“discriminat[e] against those who are sick and need care the most.”1 Roberts cites another commentator who characterized the ACA as a “civil bill of rights for the sick.”2 But, as Roberts aptly notes, the practice of “discriminating” against the insured on the basis of health conditions and expected risk is endemic to commercial health insurance underwriting.3

For her titular concept, Roberts refashions the term “healthism,”4 defining it “as discrimination on the basis of health status.”5 She argues that despite the political rhetoric surrounding federal health reform and ACA provisions intended to eliminate “healthism,” other provisions of the law in fact operate as proxies for health status discrimination. She notes that previous federal statutes intended to eradicate healthism similarly fell short of this goal.6 The ACA, on its face, surely does eliminate discrimination, first, by requiring “guaranteed issue” and, second, by requiring “community rating.” Guaranteed issue means that health insurers must sell a policy to any individual, regardless of preexisting conditions,7 and community rating means that the insurer cannot discriminate in the price of the policy based on preexisting conditions or other health status indicators.8 Continue reading "Healthism, Health Care Rights, and the Affordable Care Act"

 
 

The Truth About Empathy

Thomas B. Colby, In Defense of Judicial Empathy, 96 Minn. L. Rev. 1944 (2012).

President Obama was widely criticized when he stated that he viewed a “quality of empathy, of understanding and identifying with people’s hopes and struggles” as an essential attribute in a judge, one that he would look for in choosing Supreme Court justices and other federal judges. Conservative commentators attacked this as endorsing naked judicial activism, a call for more liberal judges running amok and deciding cases to suit their political preferences in favor of the “little guy” rather than based on “law.” Neither of the President’s Supreme Court nominees would openly endorse the empathy standard in their confirmation hearings, although Justice Kagan subtly defended the underlying idea, if not the terminology, at her confirmation hearing. And Republican members of Congress used the President’s words (or at least their (mis)interpretations of those words) to oppose his Supreme Court nominees.

With In Defense of Judicial Empathy, Thomas Colby undertakes the first comprehensive scholarly treatment and defense of the President’s arguments and of empathy as an essential and unavoidable component of good judicial decisionmaking. And he ties the centrality of empathy to broader debates over the judicial role. Continue reading "The Truth About Empathy"

 
 

(Same) Sex and the City

Luke A. Boso, Urban Bias, Rural Sexual Minorities, and the Courts, 60 UCLA L. Rev. 562 (2013), available at SSRN.

Places of transformation and constant activity, cities have always loomed large in the cultural imagination.  Clark Kent left the cornfields of Smallville for Metropolis, and in the process, discovered his true identity as Superman.  Carrie Bradshaw fled to New York City, where she discovered Manolo Blahniks and (after some false starts) true love.  The tale of escape from rural life to urban opportunity is not merely one that plays out in fantasies.  Instead, such migration accounts for large-scale demographic shifts in American society.  In the first half of the twentieth century, African Americans fled the racism and parochialism of small Southern towns for the (relative) freedom and opportunity of Northern and Western cities.

More recently, cities have figured prominently as sites of LGBT identification and acceptance.  Consider the popular “It Gets Better” campaign, which aims to combat the feelings of isolation and despair that LGBT youth often face.  Premised on the idea that coming out and assimilating into a welcoming LGBT community are integral for a happy adulthood, It Gets Better often assumes that LGBT persons seeking a “life worth living” will do so in the cosmopolitan confines of an urban metropolis.  Indeed, in one ad, Michael Bloomberg, the mayor of New York City, rolls out the welcome mat for LGBT youth.  “New York,” he advises, “has always been the place where anyone can go and be who they are supposed to be, regardless of ethnicity, religion, gender, or sexual identity.” Continue reading "(Same) Sex and the City"

 
 

Law As Unfinished Social Action

Sara Ahmed, On Being Included: Racism and Diversity in Institutional Life (Duke University Press, 2012).

After reading Presumed Incompetent: The Intersections of Race and Class for Women in Academia1 and attending the Symposium organized around the book by the Berkeley Journal of Gender, Law and Justice, I came home to find Sara Ahmed’s On Being Included: Racism and Diversity in Institutional Life waiting in my mailbox (this Jot is about On Being Included, although I’m quite prepared to say that I like Presumed Incompetent (lots) as well). The combination of these two books, both filled with personal stories and institutional insight, cracked my vision of my own place in the legal academy, and the “practice” of diversity, wide open. I read this work as a person who shares a (not surprising, really) number of experiences-as-academic with Ahmed. I read it just after reading the often deeply personal essays in Presumed Incompetent. I also read it as a person who has worked to avoid being noticed as “the problem” while trying to maintain a commitment to anti-racist work. These days, that means deep concern that my own strategies and efforts are nothing more than thinly veneered cooptation. All of these things, I think, amplified the impact of the book on me. But I still do not hesitate to recommend it to you, Jotwell reader.

On Being Included is a different kind of offering from a well-known Black British feminist, Professor in Race and Cultural Studies at Goldsmiths (University of London), whose work draws on feminist theory, queer theory, critical race theory and post colonialism. She writes, “It develops my earlier arguments about ‘stranger making’ by thinking more concretely about institutional spaces…” (P. 3.) The book is a study of “diversity” as work inside institutions of higher education. Unlike most of her other work, this one developed out of an empirical study she undertook with a team (read the Introduction for the description of how this happened). Ahmed’s interviews, her personal connection to the subject matter (her presence is part of how her institution does diversity (P. 153), and she has done ‘diversity work” there as well), and her linking of empirical and theoretical insights make this a deeply engaging read. Continue reading "Law As Unfinished Social Action"

 
 

Physician Heal Thyself: Whither the Police and Prosecutor in the Tale of Forensic Science Gone Wrong?

On February 15 of this year, the Department of Justice and the National Institute of Standards and Technology in the Department of Commerce announced their partnership in forming a National Commission on Forensic Science (the Commission). The aim of the Commission is to develop “a framework for coordination across forensic disciplines under federal leadership” and to establish national standards for forensic scientists. Both critics and defenders of forensic science in the criminal justice system largely applauded the announcement. Jennifer Laurin, however, probably let out a sigh.

That’s because Laurin’s important new article, Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight, challenges the assumption that fixing the nation’s crime laboratory problem will in turn solve its integrity-of-forensic-evidence problems. Instead, Laurin identifies the analysis of crime scene evidence as but one small part of a greater chain of events that starts when forensic evidence comes into existence and ends with its appearance at trial in a criminal case. Before evidence ever gets seen in a lab, in other words, it must first be collected, preserved, and submitted. And, after submission, evidence may only be as useful as prosecutors allow it to be, for instance via explicit requests for testing, receptiveness to the results that are generated, or timely disclosure and access during discovery prior to trial. Yet, she laments, these critical moments have evaded significant scrutiny even though upstream users of forensic science—police and prosecutors—“… select priorities, initiate investigations, collect and submit evidence, choose investigative techniques, and charge and plead cases in ways that have critical and systematic, though poorly understood, influences on the accuracy of forensic analysis and the integrity of its application in criminal cases” (p. 1055). Continue reading "Physician Heal Thyself: Whither the Police and Prosecutor in the Tale of Forensic Science Gone Wrong?"

 
 

Regulating Financial Innovation

Niamh Moloney, The Legacy Effects of the Financial Crisis on Regulatory Design in the EU, in Eilís Ferran, Niamh Moloney, Jennifer G. Hill & John C. Coffee, Jr., The Regulatory Aftermath of the Global Financial Crisis (International Corporate Law and Financial Market Regulation Series, Cambridge University Press, 2012).

Books sometimes occupy a different ecological niche in legal scholarship than do articles. The fact that books are the main scholarly medium in the UK, while articles dominate in the US, imposes an unfortunate hurdle to communication. Differences in legal regimes and regulatory structures exacerbate the problem. Readers unfamiliar with another jurisdiction’s regime may not be able to appreciate the rich comparative insights that come from evaluating different treatments of shared post-financial crisis regulatory challenges. One of the benefits of a website like Jotwell is that it can help bridge the gaps imposed by geography, institutional structure, and medium, and potentially enlarge the audience for important work that otherwise does not appear online.

Niamh Moloney’s chapter in this book is exceptional in the degree to which it considers financial regulation in terms of regulatory design, as evaluated prospectively. (In the book’s first chapter, coauthor Eilis Ferran lucidly covers existing financial regulatory reforms in the EU. Coauthors Jennifer Hill and Jack Coffee also provide thoughtful chapters, respectively covering why Australia fared relatively well through the financial crisis, and the political economy of Dodd-Frank in the US.) Continue reading "Regulating Financial Innovation"

 
 

State Boundaries and Constitutional Limits

Clyde S. Spillenger, Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, UCLA School of Law Research Paper No. 12-01 (February 15, 2012), available at SSRN.

Most constitutional law scholars pay no attention to the field of conflicts of law. Conflicts governs the law of multi-jurisdictional litigation—like which state’s law to apply when a railroad worker is injured on a train from Alabama to Mississippi, or whether a marriage in one state will be recognized in another, or how to enforce a court’s ruling against assets or people in another state. And as those examples might suggest, it can frequently seem like a technical adjunct to civil procedure.

Yet conflicts questions frequently do interact with constitutional law principles of federalism. One example is the doctrine of “extraterritoriality”—the limits on a state’s ability to regulate stuff that takes place somewhere else. Territoriality is a basic premise of the federal system; everybody knows that the New York legislature can’t just sit down and rewrite all of the laws of New Jersey. This seems like a common-sense requirement of our constitutional structure.  But as Clyde Spillenger demonstrates in Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, the nature and source of this principle is misunderstood today. Continue reading "State Boundaries and Constitutional Limits"

 
 

Public Agencies Going Private

Jon D. Michaels, Privatization’s Progeny, 101 Georgetown Law Journal (forthcoming 2013), available at SSRN.

Administrative law loves binaries. There are executive agencies and independent regulatory commissions. There are federal bureaucratic organizations and state entities. There are public agencies and private firms. In recent years, scholars have examined organizations from different sides of a “boundary” working together – for instance, executive agencies and private firms in the new governance literature and separate federal and state agencies in federalism work. There is little discussion, however, on organizations essentially operating at or near the boundary.

Jon Michaels’s previous work has focused on national security agencies turning outward from the public sphere, specifically using government contracting, for classic government tasks. In his forthcoming piece, Privatization’s Progeny, Michaels turns inward, exploring how privatization is reshaping a wider class of public institutions themselves, through “the marketization of bureaucracy” and “government by bounty.” Continue reading "Public Agencies Going Private"

 
 

How Should Judges Spend Their Time?

Marin K. Levy, Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals, 81 Geo. Wash. L. Rev. 401 (2013), available at SSRN.

The federal appellate caseload has grown from 73 cases per active judgeship in 1950 to 330 cases today. Scholars have criticized the heavy caseload and the techniques that appellate judges have developed to manage it, such as using staff attorneys and issuing unpublished opinions. Such techniques, they have argued, create a “bifurcated” system of justice with a “separate and unequal” track for certain types of cases, such as immigration cases, cases with pro se parties, social security cases, and certain types of criminal cases. They advocate systemic reforms that would alleviate this disparate treatment.

In her recent article, Judicial Attention as a Scarce Resource, Marin Levy undertakes a different task from that of scholars calling for systemic reform. While she does not necessarily dispute the need for such reform, she takes as her premise that, in the short term, the judicial system will remain relatively unchanged. Her project, then, is to examine how well judges are working within current constraints and to consider how their work might be improved. Continue reading "How Should Judges Spend Their Time?"

 
 

More Hair-Raising Decisions, and How Professor Wendy Greene Combs Through Their Flaws

D. Wendy Greene, Black Women Can’t Have Blonde Hair . . . in the Workplace, 14 J. Gender Race & Just. 405 (2011), available at SSRN.

If you are looking for an interesting and timely employment discrimination article to read, please consider Black Women Can’t Have Blonde Hair . . . in the Workplace, by Professor Wendy Greene of Cumberland, Samford University, School of Law. In that article, Professor Greene builds upon the work that she began in her article Title VII: What’s Hair (and Other Race Based Characteristics) Got to Do With It1 where she argued that characteristics that are commonly associated with a particular racial or ethnic group should fall under Title VII’s current protected categories of race, color, and national origin. Professor Greene also builds upon a seminal work in Critical Race Theory, A Hair Piece: Perspectives on the Intersection of Race and Gender2, which was written by Professor Paulette Caldwell of New York University School of Law more than twenty years ago.

In A Hair Piece, Professor Caldwell used the case Rogers v. American Airlines to expose the ways in which employer grooming codes can be used to discriminate against black women at the intersection of race and gender. In Rogers, a black female employee of American Airlines filed a lawsuit under Title VII, arguing that her employer discriminated against “her as a woman, and more specifically, a black woman” through a grooming policy that prohibited employees who had customer contact from wearing all-braided hairstyles. In dismissing Rogers’s claims based on American Airlines’s appearance grooming regulations, the district court provided two basic reasons for its decision (without actually ever addressing the plaintiff’s intersectional discrimination claim): (1) that the challenged appearance code did “not regulate on the basis of any immutable characteristic” and (2) that the challenged policy applied equally to both races and sexes. Professor Caldwell astutely argued that the flaw in Rogers was that it rested upon the premise that racism and sexism existed and operated separately and independently from each other. Continue reading "More Hair-Raising Decisions, and How Professor Wendy Greene Combs Through Their Flaws"

 
 

Should a History of Spousal Abuse Serve As A Presumptive Bar To Inheritance?

Spivack, Carla, Let’s Get Serious: Spousal Abuse Should Bar Inheritance, 90 Or. L. Rev.  247 (2011).

When I read the title there were three questions that came to mind right away. First, I was curious how to determine the type of abuse that would serve as a presumptive bar.  Next, I was curious how this presumptive bar would apply to wills and/or other forms of inheritance.  Finally, I wondered what mechanism would be in place to prevent this proposal from being used to usurp a woman’s decision to transfer her own property the way she desires.

Professor Spivak answers the first question by proposing a presumptive bar to inheritance to an abusive spouse because it provides an opportunity to expand existing laws.  The existing laws already provide a presumptive bar to inheritance to perpetrators of elder and child abuse of the decedent.  Including spousal abuse as a barrier to inheritance sends the message that spousal abuse is just as an important public policy stance to deny an unjust enrichment to abusers as the others categories of abuse.  As a policy matter I agree that perpetrators of spousal abuse should not be permitted to inherit in cases where systemic abuse exists.  As a practical matter I envisioned this would be tougher to regulate because there are different types of abuse and how should abuse be defined for this limited purpose. Continue reading "Should a History of Spousal Abuse Serve As A Presumptive Bar To Inheritance?"

 
 

Late-Night Law Firms

Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev.  805 (2011).

Every year, I ask the students in my torts class whether any of them came to law school because they wanted to practice tort law. So far, only one has said yes. And she planned to join her father’s personal injury practice, so that was something of a special case.

This is not surprising. An awful lot of my students do not know what tort law is, at least not at the start. And those that know what tort law is tend to associate it with the lawyers that advertise on late-night television. Though most first-year students do not know what they want to do, they do know that they do not want to be one of those lawyers, whom they take to occupy the bottom rung of a profession that is not held in all that high esteem anyway. It is a constant struggle to get my students to see that there is more to tort law than those late-night lawyers.

But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court.  They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are worth. And perhaps most important, they increase access to justice, offering representation to clients with meritorious claims who would otherwise not seek lawyers or find ones willing to pursue their low-value claims. Continue reading "Late-Night Law Firms"

 
 

The Real Legal Realism

Karl N. Llewellyn, The Theory of Rules, edited and with an introduction by Frederick Schauer (Univ. of Chicago Press, 2011).

Llewellyn began this book in 1938 in response to mischaracterizations of his views about legal rules. After working on it for two years, he set it aside unfinished. Mouldering for decades among the rest of Llewellyn’s papers at the University of Chicago, it has finally been published, with a masterful introduction and set of notes by Fred Schauer.  Although the book offers many valuable insights about what this prominent legal realist thought about legal rules, my emphasis here will be on how it might help put to rest two persistent misreadings of the realists.

The first is that the realists believed in global legal indeterminacy—that they thought legal rules can never (or only rarely) give judges sufficient guidance to come to a particular decision. This misreading is evident in H.L.A. Hart’s critique of “rule skepticism” in Chapter VII of The Concept of Law. The Theory of Rules is a useful corrective, for Llewellyn repeatedly insists that legal rules can, and often do, meaningfully instruct judges about how cases should be decided (e.g., Pp. 40-41, 46-47). What is more, he identifies the likely source of the mistaken view that the law is globally indeterminate—the tendency of legal scholars to concentrate on cases that make it to appellate review. (P. 47.) Here Llewellyn’s book supports Brian Leiter’s reading of the realists, for Leiter has argued tirelessly that the realists were not global legal indeterminists (e.g., Pp. 19-20 of Naturalizing Jurisprudence). Continue reading "The Real Legal Realism"

 
 

“Creative Destruction” and the Legal Services & Legal Education Markets

Ray Worthy Campbell, Rethinking Regulation And Innovation in The U.S. Legal Services Market, 9 N.Y.U. J.L. & Bus. 1 (Fall 2012).

If you are like me, you have started to notice—more and more frequently—expressions such as “creative destruction,” “creative disruption,” “disruptive innovation,” and “positive disruption.” Two recent examples include the TEDxCHANGE 2013 event held in April in Seattle which had the theme of Positive Disruption and a January 2013 Harvard Business Review blog entry entitled Creative Destruction Visits the Legal Profession. These terms have also appeared in conferences (see Panel 1) and talks at places such as Georgetown and Harvard law schools and in blog posts by higher education leaders, legal academics such as Bruce Kobayashi, and legal consultants such as Jordan Furlong (see here and here [legal education] and here, here, and here [legal services]). Disruptive innovation has been a prominent theme in the award-winning LawWithoutWalls program, which was founded by Michele DeStefano and Michael Bossone from University of Miami School of Law and in the ReInvent Law Laboratory, which is a creation of Michigan State Professors Dan Katz and Renee Knake.

During the past five years, as I have noticed more and more people using expressions such as “creative destruction,” I wondered what class or book I had missed since the speakers all seemed to know much more about this topic than I did. For this reason, I was particularly pleased to read Professor Ray Campbell’s new article entitled Rethinking Regulation and Innovation in The U.S. Legal Services Market because it provided the historical and theoretical background behind these expressions and because it gave me a new way to think about changes taking place in the legal services and legal education markets. Continue reading "“Creative Destruction” and the Legal Services & Legal Education Markets"

 
 

Property and (Not “vs.”) the State

Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (Harvard University Press, 2013).

One of my favorite cases is Shelley v. Kraemer (1948), which held that racially restrictive covenants (restrictions barring a racial or ethnic group(s) from owning a home in a particular neighborhood) were unenforceable. In fact, I use this case, along with State v. Mann, Commonwealth v. Alger, and Johnson v. M’Intosh, to help frame my Property course. I use Alger and Johnson to get my students to think about the statist dimensions of property. I then bring in Shelley to explore the relationship between courts and the state, pushing them to see how a judicial decision concerning property rights is an allocation of those rights by the state. Richard Brooks and Carol Rose’s book, Saving the Neighborhood, is a wonderful doctrinal history of Shelley that both confirms and complicates the story I tell my students. More importantly for this piece, it also complicates our understanding of an important period in American legal history.

Saving the Neighborhood charts the rise, fall, and curious persistence of racially restrictive covenants. What particularly grabs Brooks and Rose’s attention is Shelley’s failure to eradicate these covenants. Their persistence is illustrated dramatically by the discovery during Justice Rehnquist’s confirmation hearings for Chief Justice that he owned properties subject to racial covenants (pp. 1-2). This persistence leads Brooks and Rose to an exploration of the relationship between law and social norms. They argue that the covenants’ utility was more about signaling to both insiders and outsiders who was desirable as a neighbor than it was about enforceability. Covenants assured those already within the neighborhood, while warning out racial others who might want to move into it. Continue reading "Property and (Not “vs.”) the State"

 
 

Taxation and the Family: The Next Generation

• Anne Alstott, Updating the Welfare State: Marriage, the Income Tax, and Social Security in the Age of the New Individualism, Tax L. Rev. (forthcoming, 2013) available at SSRN.
• Shari Motro, Preglimony, 63 Stan. L. Rev. 647 (2011).

The tax treatment of marriage, children, and the family unit has attracted increasing attention in the past few years. The most dramatic example is the same sex or “gay marriage” phenomenon, where academics—Patricia Cain and Anthony Infanti come particularly to mind—have frequently anticipated real-world developments. But taxation of heterosexual couples is stuck in a similar time warp, and scholars have been no less aggressive in trying to catch up.

Two authors in particular have done provocative work in this area.  The first, Anne Alstott, has a long track record: her book “No Exit” describes the unique phenomenon that is motherhood and the need for tax, spending, and social policies to recognize that uniqueness.  In a more recent article, “Updating the Welfare State: Marriage, The Income Tax, and Social Security in the Age of the New Individualism,” Alstott focuses specifically on the tax component.  She argues that, because of the overall decline in marriage and the concentration of marriage among higher-income groups, it is no longer appropriate to organize the taxation of families around the existence of the marriage relationship. The most obvious implication is that joint returns should be repealed and replaced with separate, individual returns or (more ambitiously) with combined returns for households whether or not organized by marriage. The social security system would likewise be amended to replace spousal benefits with a system that emphasized caregiver relationships.  Many additional portions of tax and nontax law would require similar adjustment: Alstott does not purport to provide a complete list but rather to focus attention on the paradigm shift from which these changes would flow. Continue reading "Taxation and the Family: The Next Generation"

 
 

Back to the Future

Robert L. Jones, Lessons from a Lost Constitution, 27 J.L. & Pol. 459 (2012), available at SSRN.

Ian Ayres and Joe Bankman begin one of their articles with a Dilbert cartoon (reproduced below). They use the cartoon to show that firm insiders may use nonpublic information to trade not only their own company stock, but the stock of competitors, rivals, and suppliers. Ayres and Bankman ultimately conclude that insider trading of such stock substitutes is inefficient and should be prohibited, but they acknowledge the argument that insider trading may “produce more accurate stock prices.” Presumably one could learn a lot about a company by paying attention to how its insiders treat substitutes for the company’s stock.

Dilbert

DILBERT ©1996 Scott Adams. Used By permission of UNIVERSAL UCLICK. All rights reserved.

Robert L. Jones has written an excellent article that examines one insider’s views of a substitute for judicial review under the Constitution–James Madison, who is arguably the “father” of the Constitution. (P. 5.) The substitute was a proposed Council of Revision, endorsed by Madison as part of the Virginia Plan. It was ultimately rejected at the Constitutional Convention, but Jones argues that one can learn a great deal about our current practice of judicial review by examining the reasons Madison preferred it over the type of judicial review we have today. Continue reading "Back to the Future"

 
 

Out of the Mouths of Babes: Studying Children’s Judgments about Creativity, Ideas, and Ownership

Alex Shaw, Vivian Li & Kristina R. Olson, Children Apply Principles of Physical Ownership to Ideas, 36 Cognitive Science 1383 (2012), available at Yale University.

Legal scholars who study intellectual property rarely think about children.  Children are almost never inventors of patented technologies, and, although children’s drawings technically receive copyright protection the moment they are created, children rarely appear as litigants in disputes.

But recent research coming from psychologist Kristina Olson’s lab suggests that we should be thinking more about children.  In their new paper, Olson and her graduate students Alex Shaw and Vivian Li, report the results of experiments testing children’s intuitions about the ownership of ideas.  This paper provides an interesting insight into the development of our ideas about intellectual property and creativity, and it should be widely read by IP scholars. Continue reading "Out of the Mouths of Babes: Studying Children’s Judgments about Creativity, Ideas, and Ownership"

 
 

Does Disclosure Protect Patients from Their Physicians’ Conflicts of Interest?

Empirical research often teaches us that our intuitions are misleading. In an important discussion of her recent studies, Sunita Sah provides good reason to believe that public policy has gone down the wrong track when addressing physicians’ conflicts of interest.

As conflicts of interest for physicians have come under greater scrutiny, regulators commonly turn to disclosure as a remedy for the problem. If patients know about their doctors’ conflicts, the patients can take the conflicts into account when making their health care decisions. Patients can discount a conflicted physician’s advice or seek a second opinion. In addition, disclosure may discourage physicians from accepting payments or making investments that put them in conflicted positions. As it is said, sunshine can be an effective disinfectant. Continue reading "Does Disclosure Protect Patients from Their Physicians’ Conflicts of Interest?"

 
 

Colonial and Postcolonial Constructions of Family Law

Sylvia Wairimu Kang’ara, Beyond Bed And Bread: Making The African State Through Marriage Law Reform — Constitutive And Transformative Influences of Anglo-American Legal Thought, 9 Hastings Race & Poverty L. J. 353 (2012), available at Comparative L. Rev.

Western legal regimes tend to characterize family law as a field regulating private relations between adults, as well as between adults and their children and as “the opposite” of both public law and the law of market exchange. During the latter part of the twentieth century, feminists analyzed how the legal treatment of family relations as private amounted to a public endorsement of private coercion.1 More recently, comparative law scholars have begun to study and understand the emergence of family law as a distinct field in western legal thought.2 Over and over again, the emergence of family law, a surprisingly recent phenomenon, is associated with constitutive moments in the making of modern states: from federalism in the U.S. to the construction of nation-states in Europe. Sylvia Wairimu Kang’ara’s Beyond Bed and Bread: Making the African State Through Marriage Law Reform is an important new contribution to this literature, demonstrating the central role that reforming marriages played in the construction of colonial and post-colonial states in the parts of sub-Saharan Africa colonized by Britain.

The Article begins by analyzing the central role that the invalidation of customary marriages in Africa played in colonial administration. During the initial legal encounter between common law and African customary laws, judges invalidated large swaths of prior legal relations. In a (professed) effort to align colonial practices with English morality, colonial administrations superimposed a classical legal scheme of thinking about the family and the market at a moment when most of the African economy depended upon a different household model.  Instead of the separate spheres ideology that characterized family law of the classical legal tradition, African customary marriages were based on an economically active household—often composed of polygamous units engaging in economically important exchanges of property through marriage, such as the bride-price. Starting from an assumption that individual free will was the building block for any civilized legal system, colonial judges invalidated customary marriages as repugnant to English colonial morality. They looked hard, but did not seem to find any African subjects capable of becoming “individual holders of exclusive and absolute rights” in the classical legal tradition.  Critically, customary marriage’s failure to cultivate subjects that were suitable rightsholders marked the first step toward property expropriation in the name of empire building. Continue reading "Colonial and Postcolonial Constructions of Family Law"

 
 

Provoked Intimate Femicides: A Privatized Version of “Honour”?

Pascale Fournier, Pascal McDougall & Anna R. Dekker, Dishonour, Provocation and Culture: Through the Beholder’s Eye?, 16(2) Can. Crim. L. Rev. 161 (2012), available at the University of Ottawa.

In their thought-provoking work Dishonour, Provocation and Culture: Through the Beholder’s Eye?, Pascale Fournier, Pascal McDougall and Anna R. Dekker use a unique blend of historical, cross-cultural and empirical analysis to reveal the connections between so-called “honour killings” and intimate femicides where the defence of provocation is invoked.  While “honour killings” typically involve “non-Western” defendants, and concerns about gender equality are more explicit, intimate femicides raise similar equality concerns which are often unrecognized and concealed.  The authors acknowledge that there are differences between our typical conception of honour killings and the spousal homicides in which provocation is raised by Western defendants.  For example, traditional honour killings invoke the idea of public honour, whereas in the provoked intimate femicides, “the locus of honour has shifted from the traditional extended family to the individual man” (178). However, there are underlying features that link spousal homicides to honour killings: both are “cultural claims tied to male domination of the family” (180) and both turn on the desire to control women’s sexuality. In essence, the defence of provocation is portrayed as a privatization of honour, with aspects of honour manifested through Western understandings of “passion”.

The defence of provocation in Canada has not been explicitly linked to male honour in the case law.  Instead, the defence is viewed as making concessions to human frailty, and is limited by the concept of the “ordinary person”.  The insult which triggers the killing must be grave enough to cause the ordinary person to lose self-control, and the accused must have reacted suddenly, before there was time for his “passions to cool”.  But this concession to human frailty masks the historical basis of the defence and the meaning embedded in spousal homicide cases. The idea of women and children as property of their male partners looms large even in recent cases.1 The public framing of honour killings as something “other” than Western obscures the foundations of spousal femicides in Canada, which are rooted in individual conceptions of male honour. Continue reading "Provoked Intimate Femicides: A Privatized Version of “Honour”?"

 
 

The Care and Feeding of Sticky Defaults in Information Privacy Law

Lauren Willis, When Nudges Fail: Slippery Defaults, 80 U. Chi. L. Rev. ___ (forthcoming 2013) available at SSRN.

If Jotwell is meant to surface obscure gems of legal scholarship, which might go unnoticed otherwise, I might be missing the point by highlighting a work forthcoming in the not-so-obscure University of Chicago Law Review on the au courant topics of nudges and liberal paternalism. But Lauren Willis’s new article, When Nudges Fail: Slippery Defaults, might escape the attention and acclaim it deserves as a work of information privacy law, so it is in that field I hope to give the article its due.

Willis’s article takes on the pervasive idea that all default choices are sticky. Defaults can sometimes be sticky, but Willis carefully deconstructs the economic, social, and technological preconditions that tend toward stickiness, and then demonstrates how firms can manipulate those conditions to render defaults quite slippery. Continue reading "The Care and Feeding of Sticky Defaults in Information Privacy Law"

 
 

The Brave New World of Identification

Margaret Hu, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013), available at SSRN.

The memory seems almost quaint.  While waiting with prosecutors in the hallway between indictments, an excellent customs and border protection agent would entertain and impress with his uncanny ability to pick out fake passports from real ones.  Part of this skill came from a keen mind capable of decoding the patterns of passport numbers and comparing them against the algorithm used in official passports.  Part of this talent came from the wisdom and judgment honed by experience.

The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned.  She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.”  She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking.  For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software. Continue reading "The Brave New World of Identification"

 
 

Celebrating Federal Civil Rulemaking

Lonny Hoffman, Rulemaking in the Age of Twombly and Iqbal, U.C. Davis L. Rev. (forthcoming, 2013) available at SSRN.

The Federal Rules of Civil Procedure are 75 years old this year. Imagine a fete thrown in their honor-mini rule books as party favors, balloons emblazoned with Rule numbers 1-86, and a cake decorated with the words “Just, Speedy, and Inexpensive.”  If there ever where such a party, Lonny Hoffman’s article, Rulemaking in the Age of Twombly and Iqbal, should be the opening toast.  No, his article does not begin with a pithy joke; although, that might be fun. What it does is address the federal civil rulemaking process, an important — but often less discussed — aspect of the civil rules.

Hoffman’s article uses Rule 8’s pleading standard and the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal as an entry point for his discussion of the federal civil rulemaking process.  First, he provides a thorough historical account of Rule 8.  He relies on primary source material and weaves a rich recounting of the original rulemakers’ Rule 8 deliberations.  The original civil rulemaking committee made a choice in Rule 8 by using the word “claim” in the text as opposed to “fact.”  It chose this language for maximum flexibility and minimum technical wrangling.  This much we already knew. But Hoffman’s account reminds us of Rule 8’s origin before summarizing how the civil rulemaking committee treated Rule 8 over time.  What his account tells us is that the rulemakers had multiple occasions to reconsider the policy choices made in the original Rule 8.  He documents how rulemakers confirmed Rule 8 again and again from the 1970s until just before Twombly was decided in 2007.  While the reasoning of each committee varied a bit — some citing the practical difficulty of amending the rule, some questioning the empirical basis for changing the rule, and some arguing that heightened pleading would be antithetical to the rule’s purpose — it is safe to say that, overall, the rulemakers actively decided to keep Rule 8 as it was. Continue reading "Celebrating Federal Civil Rulemaking"

 
 

Balkan Ghosts

Whatever Reva Siegel writes is worth close study.  This recent Yale Law Journal article is no exception — characteristically alert and probing, quintessentially first-rate.  She identifies a worry recurring in important opinions Justice Kennedy has written recently – an intimation that identifying individuals on the basis of race is balkanizing.  This suggestion or something like it, she notes, also shows up in affirmative action opinions Justices O’Connor and Powell wrote and in an impressive article by Paul Mishkin Professor Siegel herself, Robert Post, and others have taken up.  She wonders whether the balkanizing worry defines a third way — an alternative to both color-blind concerns with use of racial classifications as such and preoccupations with the facts and circumstances of subordination.  The well-known Seattle and New Haven controversies look like appropriate cases for use of the balkanizing idea, she thinks.  Her discussion of Seattle (and the Louisville companion, not really separated) is somewhat abstract. Her assessment of how the city made matters worse in New Haven, and the likely consequences, feels especially dead-on.

As the article itself suggests in its long finish, the notion of “balkanizing” is provocative but incomplete.  There needs to be some filling in.  Reva Siegel is sure about that, but she doesn’t try to take the work too far.  She’s sketching but not necessarily joining this school of thought.  But what she writes is nonetheless a very effective prompt, an invitation to readers to pose tests or propose for themselves more in the way of elaboration.  Indeed, a true sign of the great success of the article lies in how quickly the reader begins to join in Siegel’s exploration. Continue reading "Balkan Ghosts"

 
 

Technical Difficulties

We’re having some intermittent, random, issues with Jotwell’s server, and as a result the Jotwell family of web sites may be slow at times until we resolve them. Some services, especially the special formatting for mobile devices, likely will be turned off during some of testing periods, but we will bring tham all back once things return to normal.

Meanwhile, while debugging is going on, if the site is down or slow, please try again later in the day.

 
 

“Big Waiver” as a Constructive New Tool of the Administrative State

David J. Barron and Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265 (2013).

In July, 2012, the Obama administration invited states, which administer the Temporary Assistance for Needy Families (TANF) program, to apply for waivers from some federal requirements for that program.  The states would have to have alternative programs in place for increasing employment among the poor.  In short order, the presidential campaign of Republican candidate Mitt Romney charged the President with gutting federal law.  Campaign commercials alleged that Obama was illegally ending the work requirements that had been a centerpiece of federal welfare reform in the 1990s.

Although the commercials had little political impact, they did bring to public attention a little-noticed feature of a surprising number of federal statutes – a feature that Professors David Barron and Todd D. Rakoff call “big waiver.”  In their superb paper, “In Defense of Big Waiver,” they analyze a fascinating phenomenon.  Congress sometimes will enact “a fully reticulated, legislatively defined regulatory framework” that contains within it a delegation of “broad, discretionary power to determine whether the rule or rules that Congress has established should be dispensed with.” Continue reading "“Big Waiver” as a Constructive New Tool of the Administrative State"

 
 

Choose or Lose

• Zev J. Eigen & David Sherwyn, A Moral/Contractual Approach to Labor Law Reform, 63 Hastings L.J. 695 (2012).
•  Brishen Rogers, Passion and Reason in Labor Law, 47 Harv. Civ. Rts.-Civ. Lib. L. Rev. 313 (2012).

The existential dilemma of modern labor law has been the shrinking numbers of employees who vote for union representation.  Last year unions represented only 11.3 percent of U.S. employees—just 6.6 percent in the private sector.  Labor law scholars have long attempted to account for the trend; indeed, rumors about the death of labor law have been around for at least twenty years.  One might think that the academic ground concerning the decision to join or not join a union would be well-plowed—so plowed over, in fact, that the land would no longer be fertile.  But two recent articles not only belie this claim, they also show the continuing importance of the representation decision to our conceptions of workplace justice.

In A Moral/Contractual Approach to Labor Law Reform, Eigen and Sherwyn seek to find middle ground between the union-side story and the management-side story as to those declining percentages.  They reject the notion that a fairer labor law system would be one in which unions enjoyed higher success rates.  Instead, they argue that representation elections should be fair, and they define a fair system as one that “will result in employees believing they had enough information to make an informed decision, that they were respected, and that they were not intimidated, threatened, or coerced.”  (p. 712) Although they acknowledge the well-regarded labor law critique by Paul Weiler and others that workers are insufficiently protected against coercive employer tactics during the representation campaign, they also contend that unions have “failed to adapt with the times.”  (p. 719)  According to Eigen and Sherwyn, under the current system workers are trapped in tug of war in which both unions and employers can lie, manipulate, and coerce their way to victory.  Card check neutrality agreements, in their view, make matters even worse: since the union must collude with the employer to put such an agreement into effect, they argue that such agreements constitute improper employer support to the union in violation of NLRA § 8(a)(2).1  Instead of shortening or eliminating the representation campaign, Eigen and Sherwyn argue that labor organizations and employers should agree to the “Principles for Ethical Conduct During Union Representation Campaigns” as set forth by the Institute for Employee Choice.  The Principles require truthfulness; prohibit discharges, threats, and bribes; and call for equal time and access for both sides.  Eigen and Sherwyn acknowledge some question about how the Principles should be enforced; they reject codifying them as regulatory requirements, but are equivocal between providing legal incentives for compliance and just simply leaving them as a contractual option.  Here, Eigen and Sherwyn rely on past research (including this paper by Eigen) to argue that making the Principles mandatory will undercut the moral norms that might render them more effective in the workplace than legal sanctions.  Ultimately, they hope that joint agreement to the Principles will make all parties, but particularly employees, better off as a result. Continue reading "Choose or Lose"

 
 

Bridging the Gap in the Justice Gap Literature

Joanna Shepherd, Justice in Crisis: Victim Access to the American Medical Liability System, Emory Legal Studies Research Paper 12-222 (2012) available at SSRN.

When we think about access to justice, we don’t tend to think about personal injury victims.  Indeed, I recently completed a review of legal needs surveys from seventeen states, conducted between 2007 and 2012.  Attempting to measure the citizenry’s “level of access to the civil justice system,” the surveys generally asked about all manner of legal issues:  consumer problems, housing problems, health problems, employment problems, family problems, and problems obtaining public benefits.  Yet out of these seventeen studies, only four inquired about accidents.

Why this omission?  It’s not that accidental injuries are too rare to merit inclusion.  To the contrary, Deborah Hensler’s classic work, Compensation for Accidental Injuries in the United States, shows that accidents happen with unnerving frequency.  Roughly one in six Americans sustains an accidental injury that results in measureable economic loss each year, and some accidents are serious.  One-third of accident victims’ injuries impose “significant costs on them and on society.”  Likewise, Barbara Curran’s groundbreaking 1977 study, The Legal Needs of the Public, found that “tort problems” (including those involving property damage) were more common than problems involving marital issues, job discrimination, wage collection, landlord-tenant disputes, and other consumer problems, combined. Continue reading "Bridging the Gap in the Justice Gap Literature"

 
 

Temporary Treasury Regulations and IRB Guidance in a Post-Mead and Mayo World

Kristin Hickman, Unpacking the Force of Law, 66 Vand. L. Rev. 465 (2013).

With the Supreme Court’s recent decision in Mayo Foundation for Education and Research v. United States, there is a huge void of scholarship regarding how administrative law principles apply in the tax context.  Kristin Hickman helps fill that void by continuing her work at the intersection of administrative law and tax procedure in her recent Vanderbilt Law Review article “Unpacking the Force of Law,” which deals with the treatment of temporary treasury regulations and IRB guidance after the Supreme Court’s decisions in Mayo and United States v. Mead Corp.

In Mead and Mayo, the Court clarified that agency regulations received Chevron deference if they were based on either specific grants of rulemaking authority contained in a statute or on general rulemaking authority granted by Congress to a specific agency.  Mead explained that an agency’s regulation was entitled to Chevron deference as long as “Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”  In addition, in Mayo, the Supreme Court rejected the idea of tax exceptionalism stating “[w]e are not inclined to carve out an approach to administrative review good for tax law only.” Continue reading "Temporary Treasury Regulations and IRB Guidance in a Post-Mead and Mayo World"

 
 

Adequacy and the Attorney General

• Margaret H. Lemos, Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 Harv. L. Rev. 486 (2012).
• Deborah R. Hensler, Goldilocks and the Class Action, 126 Harv. L. Rev. F. 56 (2012).

Maggie Lemos’s valuable article tackles one of the hot issues in aggregate litigation: a government (typically acting through its attorney general) using parens patriae suits to vindicate the rights of its citizens.  As I described in my last Jotwell post, access to justice in a mass society is the central civil-justice issue of our day.  Individual litigation of mass-injury claims is a luxury that neither litigants nor the court system can typically afford.  Class actions are shriveling as a realistic alternative in many instances.  Non-class aggregate litigation is infected with its own problems, as the ALI’s recent Principles of the Law of Aggregation shows.  And contracts of adhesion increasingly shunt victims into individual arbitration processes that provide little realistic opportunity for relief — and no opportunity for judicial resolution.

Into this harsh landscape enters the parens patriae action, which has emerged as the newest academic darling with the potential to provide victims of mass injury a measure of justice.  In these actions, the attorney general sues on behalf of those citizens allegedly injured by the defendants’ conduct.  Such a suit ensures a measure of deterrence.  If the recovery occurs and the attorney general establishes a fund against which injured citizens can claim, the suit also results in a modicum of compensation.  Because the suits are controlled by a public official, they also (in theory) come closer to achieving the optimal level of regulatory response, while avoiding the large fees, blackmail settlements, and other agency costs that so often give class-action and other aggregate litigation a bad name. Continue reading "Adequacy and the Attorney General"

 
 

The Global Community of Ideas that Created Neoliberalism

Angus Burgin, The Great Persuasion: Reinventing Free Markets since the Great Depression (Harvard University Press, 2012)

In The Great Persuasion: Reinventing Free Markets since the Great Depression, Angus Burgin, a historian at Johns Hopkins, offers the fascinating story of a trans-Atlantic group of intellectuals who, beginning in the 1930s, came together in an effort to articulate and promote an alternative vision to the then-dominant ideas of Keynesian economics.  In this short essay, I describe Burgin’s impressive contribution to the intellectual history of modern conservatism, and then offer some concluding thoughts on neoliberalism as a constitutional value today.

The basic story of the resurgence of conservatism, including free market ideology, in the second half of the twentieth century is well known.  What this fine book adds is a sensitive and nuanced portrait of those thinkers—economists, mostly, but not exclusively—who, through several generations of struggle, among themselves and with their antagonists, shaped the ideas of what has come to be known as neoliberalism.  Burgin’s overriding argument is that these people made possible the eventual triumphs of free market ideas in the public sphere.  Although often articulated in abstract and technical terms, these were ideas that would have a profound impact on American life and politics. Continue reading "The Global Community of Ideas that Created Neoliberalism"

 
 

Law for All? The First Thing We Do, Let’s Educate the Non-Lawyers

Renee Newman Knake, Democratizing Legal Education, 45 Conn. L. Rev. (forthcoming, May 2013), available at SSRN.

What are the public duties of law schools? Specifically, what duty, if any, do law schools have to educate people outside of the profession, such as clients, would-be clients, and ordinary citizens and consumers? Do law schools have a duty to promote public access to legal information and services?

Most of the recent call for U.S. legal education reform has focused on the interests of lawyers and problems of access to the profession, such as rising law school tuition, the contraction of the legal job market, and law schools’ duty to provide prospective lawyers with accurate job market data. Such concerns about “the economics of legal education” for lawyers are the subject of a recent letter from a coalition of legal academics to the ABA Task Force on the Future of Legal Education. Continue reading "Law for All? The First Thing We Do, Let’s Educate the Non-Lawyers"

 
 

Justice and Utility

Matt Adler, Well Being and Fair Distribution: Beyond Cost-Benefit Analysis (Oxford University Press, 2012).

Matt Adler’s book Well Being and Fair Distribution is first an articulation and then a defense of a particular social welfare function with which analysts and critics, whether from academia or elsewhere, can morally assess various large scale governmental regulatory or legislative decisions, such as the decision to use public moneys to build a dam or a highway, or to discontinue funding of the Violence Against Women Act, or to re-authorize No Child Left Behind, or to regulate carbon emissions in some way, or to continue the use of drones in warfare, or to close Guantanamo Bay, or to shrink or expand the role of the federal government in the War on Drugs.  The means of moral evaluation of these large governmental decisions for which Matt argues is consequentialist — it is the outcomes of choices that determine the morality of those choices, rather than any other attribute of the actions or any constellation of motives of the actors that do so –– and, second, welfarist — it evaluates those decisions by reference to their propensity to increase or diminish human wellbeing –- and, third, prioritarian – meaning that it gives priority, or greater weight, to increases in the wellbeing of the less well off, when comparing the relative moral virtues of possible policy changes.  So, one policy choice is morally better than another if it increases the wellbeing of those who are affected, as measured by the utility of their alternative life histories, and as ascertained by the other-regarding ideal preferences of a sympathetic spectator, with the wellbeing of the increase to the less well off given additional weight.  Thus, the title of the book: this is a defense of a consequentialist mode of evaluating decision making that centers human wellbeing and fair distribution both.

Obviously for those of us who have spent time with it, Matt’s book stands as a monumental achievement; it is philosophically and economically sophisticated, and exhibits a mastery of multiple literatures, from the analytic-philosophical work of the last three decades on identity, equality, and wellbeing, as well as a sizeable normative economic literature spanning three quarters of a century on social welfare functions and their various competitors, most significantly of course cost-benefit analysis.  It is also, though, monumentally important, given the current state of normative jurisprudence, and for three reasons not made obvious by the book itself: the first, internal to utilitarian jurisprudence, the second, on debates between utilitarian and deontological theories of legal evaluation, and third, in legal scholarship more generally.   I want to spell those out and then I will then raise some questions and objections about its methodology. Continue reading "Justice and Utility"

 
 

Of Trademarks and Brands

Deven R. Desai, From Trademarks to Brands, 64 Fla. L. Rev. 981 (2012), available at SSRN.

As Stacey Dogan noted in her recent review of Bob Bone’s Taking the Confusion Out of “Likelihood of Confusion”: Toward a More Sensible Approach to Trademark Infringement, trademark law is at a bit of a crossroads. Scholars increasingly question basic tenets of trademark law and seek explanations for our blinkered theories of trademarks. Among recent attempts at comprehensive trademark law frameworks, some are good, some great, some … not.

The most insightful and satisfying of these is Deven Desai’s From Trademarks to Brands, which continues a line of research Desai started with Spencer Waller several years ago. From Trademarks to Brands mines the “brand theory” marketing literature for wisdom about the continuous expansion of trademark law. He struck a vein. Desai begins by disaggregating three views of brand value in the literature: (1) the corporate view, in which the firm owns and controls the brand, with consumers passively receiving brand information; (2) the noncorporate view, in which consumers and communities construct brand value; and (3) a synthesized view, in which all these stakeholders co-create brand value by using the brand as an information resource. Continue reading "Of Trademarks and Brands"

 
 

Some Things Are Better Left Unsaid: The Argument the Solicitor General Didn’t Make in NFIB v. Sebelius

Abigail R. Moncrieff,  When the Tenth Justice Doesn’t Bark: The Unspoken Freedom of Health Holding in NFIB v. Sebelius, Boston Univ. School of Law, Law and Economics Research Paper No. 12-44, available at SSRN

Given the intense popular, political, and academic interest in the challenge to the Affordable Care Act, it comes as no surprise that the Supreme Court’s decision in NFIB v. Sebelius would launch a flotilla of articles about that decision, particularly since the outcomes (with respect to both the individual mandate’s constitutionality and the expansion of Medicaid) were not what conventional academic wisdom had predicted.  In the coming months and years, we will undoubtedly spend a good deal of time thinking through and reading about the possible implications of what the Court did, and didn’t do, in that case.

But the most intriguing and enjoyable article that I have read so far about NFIB focuses not on what the Supreme Court did or didn’t do, but on what Solicitor General Donald Verrilli chose not to do in defending the individual mandate against a commerce power challenge before the Court.  In “When the Tenth Justice Doesn’t Bark:  The Unspoken Freedom of Health Holding in NFIB v. Sebelius,” Abigail Moncrieff hypothesizes that the Solicitor General deliberately chose to forgo raising a more persuasive legal argument regarding the individual mandate’s constitutionality and that this politically strategic decision represents a previously unexplored terrain of popular constitutionalism. Continue reading "Some Things Are Better Left Unsaid: The Argument the Solicitor General Didn’t Make in NFIB v. Sebelius"

 
 

Comparative Pragmatism versus Comparative Formalism in the Abortion Context

Rachel Rebouché, Comparative Pragmatism, 72 Md. L. Rev. 85 (2012).

In recent years, with the increased internationalization of the judiciary, we have witnessed growing support from advocates, policymakers, and judges for applying international and foreign law in a domestic context.  To be sure, U.S. courts have demonstrated greater reluctance toward this approach than many courts in other parts of the world.  As Margaret Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, has noted, “justices of some foreign constitutional courts traverse the world of global jurisprudence with an agility that leaves an American judge breathless.”1 But what happens when judges, intending a comparative approach, incorrectly interpret foreign jurisprudence?  And even when these judges get the law right, are they looking at the right thing when they focus on comparative law rather than comparative practice?  Rachel Rebouché considers these complex questions concerning international and comparative law as she tracks important global developments in abortion law over the past few decades.

Rebouché starts with a challenge to the conventional wisdom that U.S. abortion law symbolizes protection of women’s constitutional rights while German abortion law symbolizes protection of fetal constitutional rights.  While that dichotomy may have been true when Mary Ann Glendon first described it in 1987, Rebouché argues, the United States and Germany have, in fact, moved in opposite directions concerning abortion law and practice and the availability of abortion services.  Developments in the U.S. since Roe v. Wade have made the constitutional right to an abortion “unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas.”  By contrast, abortion law and practice developments in Germany have gone in the opposite direction, expanding access to abortion, rather than limiting it in the interest of protecting fetal rights.  Though a 1975 decision by the Federal Constitutional Court of Germany (“FCC”) supported protection for “unborn life,” more recent developments have prioritized access to abortion—a position that sounds in the register of women’s rights—above fetal rights.  A 1993 FCC decision reiterated that abortion is an unlawful act, but eliminated criminal punishment upon demonstration of proof of counseling (which is readily available in most regions of Germany at counseling centers that tend to be pro-choice) before the twelfth week of pregnancy.  Moreover, state welfare funds are available in cases of financial need, which is interpreted so generously by most regional legislatures that in some regions, the government pays for nearly every abortion. The broad availability of state-funded abortion services has led some commentators to argue that “Germany, in effect, permits abortion for any reason.”  While the U.S. and German legal developments have had enormous influence on the constitutional decisions of national courts in Colombia, South Africa, Portugal, and Mexico, these latter national court decisions, Rebouché argues, have stopped short of engaging with the “implications and evolution of abortion jurisprudence in the United States and Germany.”  More troublingly, these national court decisions have, at times, misinterpreted U.S. and German law. Continue reading "Comparative Pragmatism versus Comparative Formalism in the Abortion Context"

 
 

Moore on Intent and Battery

Nancy Moore, Intent and Consent in the Tort of Battery: Confusion and Controversy, 61 Am. U. L. Rev. 1585 (2012).

Nancy Moore’s Intent and Consent in the Tort of Battery: Confusion and Controversy is something every Torts professor should read.  This is not only because it is interesting and well written and engages with canonical cases.  It is also because it will teach many professors to question something they thought they knew: the meaning of “intent” in the tort of battery.  While the references to Vosburg and the Restatement (Second) on battery may seem a bit old-fashioned to some, such a judgment would be ill-founded.  Many aspects of battery law are ambiguous, incoherent, vague, and contradictory; moreover, from informed consent in medical malpractice to unwanted touchings in sexual harassment to the ever-spreading role of comparative fault, it is no longer adequate to pretend that intentional tort law can reasonably be relegated to the subject of schoolboy pranks.

While Moore discusses both intent in battery and (relatedly) the interplay of intent, consent, and mistaken defendant beliefs about consent, the lion’s share of her attention goes to intent itself. Restatement (Second) § 13(a) requires a plaintiff bringing a battery claim to show that the defendant acted “intending to cause a harmful or offensive contact with the person of the other or a third person.” According to Moore, courts have disagreed over the scope of this phrase, and, in particular, over whether it is sufficient that the defendant have intended to make contact (so long as that contact does turn out to be harmful or offensive), or whether it is necessary that the defendant have intended to make contact and have intended to harm or offend the plaintiff.  She calls the former the “single intent rule” and the latter the “dual intent rule.” Continue reading "Moore on Intent and Battery"

 
 

Forsaking Vulnerable Sex Work

Most of us never have to be concerned about being forsaken.  We have permanent homes, we have family doctors, we have jobs… But imagine you have none of these things.  You don’t know where you are going to sleep tonight.  You do not have access to regular health care.  You have no employer…You are consumed by fears about your physical safety.  You are afraid to contact the police.  In these circumstances, you are largely on your own, easily forsaken.1

It is difficult to imagine a more intentional account of vulnerability than the above passage introducing British Columbia’s recently released Report of the Missing Women Commission of Inquiry into the disappearance and murder of more than sixty Vancouver women – most of whom had been involved in the city’s Downtown Eastside sex trade.  It is also difficult to imagine an opening sentence that more explicitly constitutes a “vulnerable other” subject position. Continue reading "Forsaking Vulnerable Sex Work"

 
 

What Does it Feel Like to be a Lawyer?

Susannah Sheffer, Fighting for their Lives: Inside the Experience of Capital Defense Attorneys (Vanderbilt University Press 2013).

The question of how it feels to do the work we do receives little attention in mainstream legal literature.  We tend to treat the very acknowledgement of our work’s emotional aspects as downright unlawyerlike — a challenge to law’s rational and rigorous essence. Yet as this book beautifully illustrates, the question of how it feels to do our work cannot be cordoned off from the issues at the center of the teaching and practice of law: what it means to be an ethical, zealous, effective counselor and advocate with a satisfying, sustainable legal career.

Susannah Sheffer sheds light on all these issues, though she sets out to answer a narrower question: what it is like to be a capital defense lawyer specializing in post-conviction challenges.  What is it like for these lawyers, she asks, not in the courtroom or the offices of the capital habeas unit, but “in the middle of the night, in the pit of the stomach, in their last visits or phone calls with clients who are about to be taken to the execution chamber, in the mornings after, in their lives with their families, in their dreams and flashbacks and quiet moments alone?” What is it like to do this work in the face of incomprehension and even hostility from the larger community? What motivates such lawyers and how do they keep doing what they do? Shaffer explores these issues in conversations with twenty capital defense lawyers in this insightful and deeply affecting book. Continue reading "What Does it Feel Like to be a Lawyer?"

 
 

Fixing Personal Jurisdiction

Stephen E. Sachs, How Congress Should Fix Personal Jurisdiction, Duke Univ. Working Paper (2013).

Who among us has not relished the extraordinary gift the Supreme Court gave to civil procedure teachers in the form of J. McIntyre Machinery, Ltd. v. Nicastro, allowing professors to punctuate the already absurd personal jurisdiction case line with the story of the unlucky Mr. Nicastro (he who lost four fingers to a metal shearing machine in New Jersey), with nary a place to sue? (And, no doubt reserving that one remaining finger for . . . personal jurisdiction jurisprudence.) Moreover, to ensure us a near-perfect teaching vehicle, the Court — as Professor Stephen E. Sachs notes in the wonderfully entertaining and thought-provoking How Congress Should Fix Personal Jurisdiction — “bogged down in an incoherent three-way split.”

Rather than make a futile attempt to make sense out of McIntyre, or to rationalize the mess away, Professor Sachs whole-heartedly forges into the personal jurisdiction thicket (which he labels a “dismal swamp”) with his own solution. Actually, an entire array of solutions. Sachs takes up McIntyre’s invitation to Congress to provide a federal forum for cases like Nicastro’s, and he sets forth a detailed federal statutory scheme for authorizing a federal forum based on existing venue rules. In particular, he is keen on securing federal forums to enable plaintiffs such as Nicastro to sue multinational corporations, such as McIntyre, that might otherwise evade responsibility for injuries to U.S. citizens because of existing state personal jurisdiction doctrine. Sachs notes that his proposal to create federal personal jurisdiction based on a venue model is not new, but suggests that other such attempts have been flawed in key respects (which he aims to rectify). Continue reading "Fixing Personal Jurisdiction"

 
 

Inside the Black Box

Kenneth A Bamberger & Diedre K. Mulligan, PIA Requirements and Privacy Decision-Making in US Government Agencies in Privacy Impact Assessment (D. Wright & P. De Hert eds. 2012) available at SSRN.

Many large law firms are experiencing increased demand for their compliance and risk management services.  They are writing compliance manuals and organizing and teaching training programs.  They compete with consulting and accounting firms for this work.

Some of this work requires skills not traditionally found in law firms.  To be sure, the translation of regulations into simpler language for manuals and the oral communication skills necessary for trainings are commonplace.  But, the best internal controls require knowledge of the pressures on the corporate actor.  And they require understanding the actor’s perspective, in order to motivate their commitment to compliance.  Lawyers known for their “judgment,” often had such knowledge and understandings.  But many lawyers relied on their independence to avoid engagement with what they belittled as “corporate politics and in-fighting.”  Others would rely on their independence to emphasize that they simply gave options to their clients and were not responsible for what their clients did. Continue reading "Inside the Black Box"

 
 

A Textualist Approach to Purposivism in the Regulatory Arena

Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).

When I returned from the 2013 AALS Annual Meeting, I discovered Professor Kevin M. Stack’s latest article, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012), waiting patiently for me. As someone who teaches both Administrative Law and Statutory Interpretation/Legislation, I picked it up with interest; although, given all that has been written about statutory interpretation, I must confess that I really couldn’t imagine that there would be anything new to say about interpreting regulations. Yet, I remembered that each year, around the time my students realize that they will certainly be tested with a Chevron-like hypothetical on their final exam, I’m asked how to approach the analysis. After they’ve determined that Chevron applies (Chevron step zero), that Congress did not have an intent as to the precise issue before the court (Chevron step one), and that the agency’s interpretation of the statute is reasonable (Chevron step two), I have always told them that the final step is simply to apply the regulation to the fact pattern using the traditional tools of statutory interpretation. Was my direction wrong? I wondered.

Lest I hold you in suspense, let me explain Professor Stack’s thesis immediately. He believes that courts should use regulatory purposivism to interpret regulations. He defines regulatory purposivism in this way: a court should ask whether an interpretation of a regulation is (1) permitted by the regulation’s text, and (2) consistent with the purposes as stated in the regulation’s statement of basis and purpose (and/or text). If a court answers yes to both questions, then the interpretation is “reasonable,” “permissible,” “plainly” right, at essence, controlling. (If I may digress, I wondered, was he advocating a new two-step deference approach? God forbid!) He suggests that courts should not give meaning to a regulation that the text will not bear, but he adds that neither should courts give a regulation a meaning that the written statement of basis and purpose will not bear. In essence then, he advocates for a text-based approach to purposivism! Continue reading "A Textualist Approach to Purposivism in the Regulatory Arena"

 
 

The Uncertain Impact of Wal-Mart v. Dukes

Elizabeth Tippett, Robbing a Barren Vault: the Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, 29 Hofstra Lab. & Emp. L. J. 433 (2012).

Melissa Hart, Civil Rights and Systemic Wrongs, 32 Berk. J. of Emp. & Lab. Law, 455 (2011).

It has been less than two years since the Supreme Court’s controversial decision in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). During this short period the Court’s opinion has been interpreted by numerous lower courts. It also, not surprisingly, has been the subject of a substantial amount of commentary in law reviews and numerous proposals for legislative reform to restore a promise of class action challenges to employment discrimination that the Dukes decision allegedly shattered. Drawing from this commentary, I would choose these two very different articles as useful guides for tracking the impact of Dukes on employment discrimination class action litigation. The articles, in my view, together make the case that at least in the absence of legislative or judicial qualification, the Dukes decision’s 5-4 split holding on the commonality requirement in FRCP 23(a)(2) may have less of an impact than the Court’s unanimous dicta on the limited remedies allowed for Rule 23(b)(2) classes and the unavailability of statistical modeling to facilitate the certification of Rule 23(b)(3) classes. Continue reading "The Uncertain Impact of Wal-Mart v. Dukes"

 
 

Succession Law Through an Economic Lens

Kelly, Daniel B., Toward Economic Analysis of the Uniform Probate Code, 45 Univ. of Mich. J. of Law Reform 855 (2012), available at SSRN.

In his article, Toward Economic Analysis of the Uniform Probate Code, Dan Kelly fills a significant gap in the inheritance law literature.  As he notes, a number of scholars have brought the lens of economic analysis to bear on trusts but few, if any, have taken a comprehensive look at intestacy and wills using the tools of economic analysis.  Kelly takes on this task and the result is an important contribution to the field.

Kelly begins by tracing the important historical move from formalism to a functional view of inheritance law and gives the reader a succinct synopsis of the work of important inheritance law scholars like John Langbein and Larry Waggoner.  He then describes the work of a younger generation of scholars like Rob Sitkoff, who has brought empiricism to trust law in particular.  This literature summary is helpful in identifying the scholarly gap in the area of intestacy and wills, i.e., succession law. Continue reading "Succession Law Through an Economic Lens"

 
 

Reading to Challenge Your Tax Thinking

Alberto Alemanno, Is There a Role for Cost-Benefit Analysis Beyond the Nation-State?: Lessons from International Regulatory Co-operation, in The Globalization of Cost-Benefit Analysis in Environment Policy (Oxford University Press, 2013) available at SSRN.

When I seek reading suggestions I am especially interested in recommendations for pieces that might not normally cross my desk.  The work I am discussing here, “Is There a Role for Cost-Benefit Analysis Beyond the Nation-State?: Lessons from International Regulatory Co-operation” by Alberto Alemanno, falls into that category.  The topic – the legal analysis of international regulatory cooperation regarding non-tariff barriers to trade (e.g., labor, environmental, or health and safety regulation) — is distinctly not tax.  But this book chapter, which examines the international convergence in specifying procedures for setting regulatory standards, provided an energizing boost to my own thinking about potential harmonization in the international tax arena through cooperation on a “non-substantive” level.  Before discussing why I found this chapter engaging for a tax scholar, a quick overview of the thesis may be helpful.

The article starts from the premise that trade liberalizing goals have pushed states, through the WTO, to reduce trade barriers but that their success has been limited where the trade barriers are in non-tariff form (such as environmental regulations).  In that context, states have shifted to what is characterized as convergence with respect to “how” they determine the appropriate substantive regulation to put in place – i.e. “procedural harmonization.”  Underlying this shift are two assumptions: (1) it is easier for states to agree to procedures that they will follow in setting these kinds of regulations, and (2) that procedural harmonization can/will lead to harmonization of the ultimate substantive decisions.  The author provides examples of such harmonization – the Technical Barriers to Trade Agreement (TBT) established at the end of the Uruguay Round required members to ground their regulatory measures in “international standards, guidelines or recommendations, where they exist” and if not to then either provide a “scientific justification” or “prove the ‘necessity’ of the measures adopted.”  The author considers the harmonization via this agreement to be unsatisfactory in stopping nontrade barriers.  Therefore, he devotes much of the chapter to arguing in favor of a “procedural” requirement that he contends could further reduce substantive divergence – a requirement of international cost-benefit analysis and transparency.  The discussion of how cost-benefit analysis might meet this goal was interesting on its own terms.  But I was drawn to the background context in which the entire conversation was taking place – a world in which agreement on substance was difficult, agreement on procedure was easier, and agreement on the latter was expected to generate convergence regarding the former.  I have been thinking about these questions in the context of international tax – in particular the shift away from attention to tax competition (which was perceived as seeking agreement on substance – or at least rates) and towards information exchange and disclosure on a grander scale. Continue reading "Reading to Challenge Your Tax Thinking"

 
 

Lobbying and the Restatement of Torts

With such a title, how could a tort scholar not want to read the new working paper by Laposata, Barnes, and Glantz?  The Restatement plays a very prominent role in tort law; many courts cite its provisions.  The thought that the tobacco industry may have influenced its development is unsettling.

The authors present a fair amount of worrisome evidence of efforts by tobacco lawyers to influence the Restatement, especially the Second Restatement, under the direction of Reporter William L. Prosser.  The evidence is largely circumstantial.  Drafts of various parts appear to change after tobacco lawyers intervene.  The final draft of Restatement §402A, on products liability, includes an explicit exemption for “good tobacco.” Continue reading "Lobbying and the Restatement of Torts"

 
 

Bargaining with the Soul at Stake: Early Modern Catholic Scholastics and Contract Law

Decock’s judicious and insightful book participates in the rediscovery of the theological foundations of modern Western law.  With great precision he uncovers the debt that our contract law owes to early modern Catholic scholastic theologians such as Domingo de Soto, Luis de Molina, Leonardus Lessius, and Francisco Suárez.  These writers treated contracts not only as devices for the exchange of property.  They understood that contracting involved moral choices that could advance or retard justice and the prospects for the salvation of one’s soul.  In order to clarify these ethical dilemmas for Catholic confessors and for laymen wrestling with their consciences, scholastic theologians commented upon the ordinances of their own communities and the Roman law used throughout late medieval Europe (the ius commune).  Their works influenced early modern canonists, civilians, and natural lawyers and, through them, left an important mark on modern European and American contract law.

Decock focuses on how the theologians’ speculations led to the rise of the principle of “freedom of contract,” understood as the imposition of legal obligation solely through the consent of the parties.  The late medieval ius commune, drawing on Roman law, had allowed the creation of legal obligation through mutual consent only in certain areas, such as sales, leases, and partnership.  James Gordley and other distinguished legal historians have noted that scholastics went well beyond this inheritance to craft a generalized, consensualist “freedom of contract.”  But why in the sixteenth and early-seventeenth century?  The dominant interpretation has been that the acceleration of trade in the early modern period and the stirrings of “market capitalism” invited moral theologians to consider commercial transactions not adequately treated in the ius commune.  Although Decock accepts this interpretation as a partial explanation, he innovates by insisting that theologians thought that freedom of contract would facilitate the saving of souls.  The greater the realm of freedom among contracting parties, the greater their ability to pursue virtue, accept moral responsibility, and encourage trust—or the reverse. Continue reading "Bargaining with the Soul at Stake: Early Modern Catholic Scholastics and Contract Law"

 
 

Life in Prison

Sharon Dolovich, Exclusion and Control in the Carceral State, 16 Berkely J. Crim. L. 259 (2011).

The idea of incarceration is not self evident. One can speak of prisons in ancient Greece and Egypt, as well as in medieval Europe, but the largely private nature of the prisons, the arbitrary imposition of penalties and of their length, and the lack of oversight or regard for prisoners’ welfare makes the use of the word prison seem out of place in such contexts. Besides, incarceration was not the primary method of punishment in the classical and medieval world. Banishment, shame, public displays of punishment, fines, and outright executions were regarded as better suited than prisons in making the point that crime will not be tolerated.

The modern era gave us prisons – hierarchical, rational, rule-bound bureaucratic institutions. And with it, a bargain was struck, as Sharon Dolovich writes in her fascinating account of the history and development of the idea of exclusion and control in American prisons. The bargain, according to Dolovich, involves the state’s ability to isolate those who transgress the law and then to ensure that such persons will be kept “apart from society for the duration of their sentences.” (P. 274).

The problem, Dolovich notes, involves the limits and the character of confinement. Why, in the 1990s, did the United States turn to two policy choices, life without parole (LWOP) and the Supermax? What were the evils policymakers in the 1990s were combating? Continue reading "Life in Prison"

 
 

Same-Sex Marriage—A Liberty for All

Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality, 49 San Diego L. Rev. 415 (2012), available at The Williams Institute.

For more than twenty years, the constitutionality of laws against same-sex marriage has remained a hot topic among scholars, lawyers, and judges in the United States.  This month, the U.S. Supreme Court will finally hear argument on the constitutionality of two such laws—the federal law known as the Defense of Marriage Act and an amendment to the California Constitution known as Proposition 8.

After so many years and so many challenges, it has become increasingly difficult to find arguments and angles on this topic that are genuinely novel.  In recent years, it often feels as if the question has been exhausted—as if both sides have already said what is worth saying, and we all are just repeating ourselves, pleading and praying for Justice Kennedy’s vote.

Yet in his recent article, Professor Michael Boucai (Buffalo) manages to stake out a powerful new claim for same-sex marriage—a claim based on homosexual liberty, rather than the equality of lesbian and gay people or the fundamentality of marriage itself.  In the article’s opening sentence, Boucai explains: “This Article proposes that same-sex marriage bans channel individuals, particularly bisexuals, into heterosexual relations and relationships, impermissibly burdening the sexual liberty interest protected under Lawrence v. Texas.” Continue reading "Same-Sex Marriage—A Liberty for All"

 
 

Sexuality and Legal Consciousness

Legal consciousness studies is an area of socio-legal research that looks empirically at the narratives of law constructed in people’s everyday lives. It challenges the distinction often made between law and society by illustrating their mutually constitutive relationship. Put simply, not only does law affect individual and collective lives and the nature of social groupings, but social patterns and narratives also constitute the law. Influential work by Patricia Ewick and Susan Silbey made the point emphatically that “legal consciousness” is not only about people’s subjective experiences of law, but also about how people live the law, how they interpret, use, and resist law, and how they embed those meanings in their practical everyday settings.

In Regulating Sexuality, Rosie Harding takes the concept of legal consciousness in two new directions. First, she integrates it with legal pluralism, and in particular the critical legal pluralism which also defines legality by reference to everyday meaning-making and practice. Secondly, she undertakes an extensive empirical analysis of the legal consciousness of lesbians and gay men, an analysis that is important in its own terms, but that also contributes to the theoretical understanding of the effects of power on legal consciousness and how resistance by marginalised groups contributes to the legal meaning-making they engage in. Both elements of Harding’s work are significant, not only for legal consciousness studies but also for legal theory, for understanding the legal agency and conditions of lesbian and gay lives, and also for providing additional grounding to the alternative conceptions of legality which underpin legal pluralism. Continue reading "Sexuality and Legal Consciousness"

 
 

Marks on Markets and Competition

Mark A. Lemley & Mark P. McKenna, Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP,  100 Geo. L.J. 2055 (2012).

Lemley and McKenna’s recent collaboration is an article I like (lots) because it highlights a provocative anomaly.   Antitrust law offers special treatment to markets for products protected by intellectual property.  But as Lemley & McKenna point out, if you apply antitrust market definition principles to such markets, there are doubts as to their competitiveness.    There is no price at which some loyalists will switch from Pepsi to Coke, the Beatles to the Rolling Stones, Dan Brown novels to Stephen King ones, or Apples to PCs.  Because of this lack of consumer response to a price change, the authors conclude, antitrust law should scrutinize more closely markets defined by the existence of intellectual property rights.

Lemley & McKenna take their cue from Professor Louis Kaplow’s examination of market definition in antitrust law.1  Building on Kaplow,  the Lemley and McKenna article offers alternative approaches to address intellectual property cases that make reference to market effects without the use of market definition.  I think this is correct.  At the same time, there is another lesson to be gleaned from antitrust law that I think can be developed.  Antitrust law is a branch of competition policy; the normative foundations of desirable competition inform antitrust law.  My point is that intellectual property doctrines should be based on a deeper appreciation of the norms of competition. Continue reading "Marks on Markets and Competition"

 
 

The Reality of the Deterrence Effect: How Malpractice Lawsuits Promote Patient Safety

Joanna C. Schwartz, A Dose of Reality for Medical Malpractice Reform, N.Y.U. Law Rev. (forthcoming), available at SSRN.

Discussions of patient safety often begin with the depressing statistic that 98,000 Americans die every year due to hospital medical error.  From there, they may veer toward a conversation about the culture of silence that hinders efforts to identify and address medical errors.  The reasons for the culture of silence? There are many, but the law usually features prominently among them.  Fearful that any discussion of errors may find its way into malpractice litigation, the providers best suited to preventing medical error are often reluctant to share the information necessary to do so.  Thus, rather than deterring error, tort law ends up deterring its prevention.

But this gloomy story is often told alongside a more hopeful one.  Thirty years ago, prompted at least in party by high malpractice insurance premiums, anesthesiologists made a concerted effort to improve anesthesia safety – and they succeeded.  So tort law can sometimes fulfill its deterrence function.  And it does not always chill communication about errors, either.  In institutions such as the Veterans Administration Hospital in Lexington, Kentucky, and the University of Michigan Health System, errors are not just discussed internally, but also disclosed to patients. Continue reading "The Reality of the Deterrence Effect: How Malpractice Lawsuits Promote Patient Safety"

 
 

From Behind the Great Wall: FOI in China and – About Method

At a conference hosted jointly by Peking University Law School and the Carter Center, ex US-President Carter, as reported recently by freedominfo.org,  a highly recommendable information source on access to government information by the way, encouraged the Chinese government “to take critical steps toward institutionalizing the right to information, including reviewing the experiences to date under the current Open Government Information regulation and developing it into a more powerful legal regime with the statutory strength of a law.”

What these “Regulations of the People’s Republic of China on Open Government Information of April 5, 2007, effective May 1, 2008″ are about, how and why they came into existence and what is keeping them alive, is described in Weibing Xiao’s book. According to Xiao, a Professor of Law at Shanghai University of Political Science and Law, the fight against corruption did not cause this development, but rather administrative problems with managing secrecy led to first tentative research and policy initiatives for greater transparency. These initial steps were then encouraged by an improved information flow environment in which – also in part due to technological developments – information exchanges increased between administrations and between citizens and administrations. Xiao’s account suggests a push-model of government information, one which while being encouraged for all levels of government seems to be particularly vital on the local level, where it is supported by long-standing and far-reaching administrative reforms.

Beyond this historical-analytical account I recommend the book for four reasons: Continue reading "From Behind the Great Wall: FOI in China and – About Method"

 
 

Crimmigration and the Problem of Ad Hoc Instrumentalism

David Sklansky, Crime, Immigration and Ad Hoc Instrumentalism, 15 New Crim. L. Rev. 157 (2012).

The lines between criminal law enforcement and immigration enforcement have blurred to the point where they are at times indistinguishable, but effective efforts to theorize this merger through the lens of criminal law are relatively few and far between.  For this reason, I particularly enjoyed reading David Sklansky’s Crime, Immigration and Ad Hoc Instrumentalism.  In this article, Sklansky not only provides a nice descriptive account of the developments that are the causes and harbingers of the criminal/immigration merger, but he also helpfully situates these developments within a broader law enforcement framework.  In so doing, he persuasively illustrates how these developments are part of a general legal trend toward “ad hoc instrumentalism.” At the same time, he also uses the article to explain reasons that these developments might be particularly problematic in the context of what has sometimes been called “crimmigration” law.

Professor Sklansky begins with a descriptive account of “the various ways in which criminal justice and immigration enforcement have grown increasingly intertwined.”  Focusing on the period from the mid-1980s through the present, Sklansky discusses four different developments.  First, immigration crimes went from being a relatively insignificant percentage of the federal criminal docket to accounting for a majority of all federal prosecutions.  Second, deportation – which, as Dan Kanstroom has observed, was once a small-scale, post-entry form of border control – is now widely understood and used as a key tool of crime control.  Third, immigration authorities run the nation’s largest prison system – a system that is supposedly a civil detention system but that the present administration admits falls well outside the bounds of “truly civil” detention.  Finally, after decades in which sub-federal agents were viewed as peripheral to immigration enforcement efforts, state and local law enforcement officers now cooperate on a widespread and systematic basis with federal immigration officials in immigration enforcement.  Although all of these trends have been described elsewhere, Sklansky’s article provides a good overview of the existing literature.  He also makes headway into the important task – also recently taken up to great effect by Ingrid Eagly – of providing a textured sense of how the systems of criminal law enforcement and immigration law enforcement are interacting as a practical matter. Continue reading "Crimmigration and the Problem of Ad Hoc Instrumentalism"

 
 

Seeking Accuracy in Aggregate Litigation

Courts and markets perceive mass tort victims from distinct perspectives that complicate aggregate litigation.  Before mass torts cause injuries, prospective victims often are fungible variables in an actuarial model.  Actors can foresee the possibility of negligence and identify groups who they might harm without knowing which specific members will incur losses.  For example, airlines know that planes may crash and pharmaceutical manufacturers know that drugs may cause adverse affects.  Yet even if the risks are known, injuries can occur at unpredictable times to unpredictable subsets of a risk-bearing population.  Even actors who intentionally violate the law by making fraudulent claims or adopting discriminatory policies often target demographics rather than individuals.  The anticipated victims are faceless statistics in a crowd.

But after tortious conduct causes injuries that generate litigation, victims generally have known identities.  Current rules governing civil adjudication enable defendants to both ignore and exploit these individual identities when proposing procedures for resolving plaintiffs’ claims.  A defendant that desires a global settlement (or global dismissal) can continue to view victims as an undifferentiated mass by making offers or arguments that are applicable to the entire group.  If these efforts fail, defendants often challenge further aggregate approaches to dispute resolution by contending that each alleged victim is a unique individual with a unique claim requiring its own day in court.  When judges accept these arguments, victims of wholesale injury become the potentially unwitting recipients of retail justice.  This claim-by-claim adjudication consumes scarce judicial resources, burdens litigants, and can produce inconsistent judgments in similar cases. Continue reading "Seeking Accuracy in Aggregate Litigation"

 
 

The Business Case for Corporate Social Responsibility

Robert G. Eccles, Ioannis Ioannou, & George Serafeim, The Impact of a Corporate Culture of Sustainability on Corporate Behavior and Performance, Harvard Business School Working Paper 12-035 (2012), available at SSRN.

Progressive corporate law scholars have tended to ignore business or economics research as potential support for their normative claims.  When seeking interdisciplinary insights they have generally looked elsewhere.  This is not surprising, given that business and economics scholarship often reflects assumptions about corporate law that progressives reject, in particular a shareholder primacy orientation that prioritizes shareholder wealth maximization while disregarding social costs.  For progressives, business and economics scholarship may also bear the taint of its embrace by mainstream corporate law scholars, many of whom have a strong law-and-economics, empirical perspective that draws them naturally to finance, accounting, and management literature.

Those interested in corporate social responsibility (CSR) and the problems of managerial and investor short-termism should not overlook the paper reviewed here.  Robert Eccles, Ioannis Ioannou, and George Serafeim (professors at Harvard, London, and Harvard business schools respectively) make an important contribution to debates among corporate law academics about CSR as an alternative to shareholder primacy.  Their paper also has significant relevance to those who are concerned about the costs of shareholder primacy’s current incarnation as an obsession with quarterly earnings and their effects on share prices.  The authors present a sophisticated, empirically grounded demonstration of the economic advantages enjoyed by corporations that have chosen to invest in stakeholder relationships and to pursue a long-run approach to wealth creation.  Because these companies are shown to outperform financially their more traditionally-minded, shareholder-primacy, short-term-oriented rivals, CSR advocates can assert a ‘business case’ for their belief that corporations should attend to the well-being of nonshareholding stakeholders, including employees, customers, local communities where the firm operates, and those who are affected by its impact on the environment.  The business case also lends support to critics of short-termism who have no particular interest in CSR. Continue reading "The Business Case for Corporate Social Responsibility"

 
 

Our Lyin’ Eyes: Design Patents and the Perils of an “Eyes Alone” Approach to Novelty and Infringement

Rebecca Tushnet, The Eye Alone is the Judge: Images and Design Patents, 19 J. Intell. Prop. L. 409 (2012).

Thanks in large measure to the ongoing worldwide smartphone patent brawl between Apple and Samsung, patents are in the news a lot these days. And that is especially true of design patents – i.e., the branch of the patent law that grants rights in novel, non-obvious and ornamental designs. Apple pressed design patent claims against Samsung that included broad claims of ownership over rectangularly-shaped electronic devices. To many observers, these seemed . . . well . . . crazy. Take Apple’s patents on the shape of the iPhone. Here’s a design drawing from the Apple D677 patent.

Continue reading "Our Lyin’ Eyes: Design Patents and the Perils of an “Eyes Alone” Approach to Novelty and Infringement"

 
 

Strategic Interactions Between Administrative Agencies and the White House: A Welcome Look into the Black Box of the Executive Branch

Jennifer Nou, Agency Self-Insulation under Presidential Review, ___ Harv. L. Rev. ___ (forthcoming 2013), available at SSRN.

Perhaps the hottest topic in administrative law of late is the propriety of presidential influence on agency action.  To its credit, that literature distinguishes between the agencies and the White House as two distinct institutions that may not agree on particular regulatory outcomes.  But, the literature does not go much beyond this simple distinction in its picture of the executive branch, treating both White House and agencies as black boxes, each of which acts with a consistent purpose. At the same time, scholarship has focused on agencies as strategic actors vis-à-vis the judiciary, choosing methods of policymaking to minimize the potential for courts to interfere with that endeavor.  In “Self-Insulation under Presidential Review,” Jennifer Nou investigates the extent to which agencies might act strategically amidst resource constraints as a means of minimizing White House influence on their policymaking discretion.  In so doing, Nou considers the internal structure and decisionmaking processes of both agencies and the “institutional presidency” to paint a sophisticated picture of their interaction.  The result is an article that provides insight into the decisionmaking of both these institutions, and provokes much thought about how their interaction might affect administrative law.

Nou explicitly limits her investigation of White House influence to its formal review of agency rules, as mandated by various executive orders, which she dubs “presidential review.”  She makes clear that while the Office of Information and Regulatory Affairs (OIRA) coordinates such review, it can involve many entities, including those within the Executive Office of the President (EOP) and other agencies.  She begins by explaining why agency staff and in many cases agency heads can disagree with the preferences of the institutional President on many regulatory policy issues.  She next explains that, from an agency’s perspective, presidential review poses constraints similar to judicial review in that, generally, both require the agency to invest precious resources to avoid reversal of its decision.  But, she notes that presidential review is also costly for the executive branch reviewers; this cost allows agencies some strategic latitude to minimize its chances of policy reversal by increasing the White House’s costs of review, rather than by investing in more comprehensive and higher quality decision-making.  For example, agencies can avoid review altogether by simply abandoning a policy change, by making policy through adjudication and perhaps even by guidance document.1 They may be able to avoid review or minimize the level of scrutiny to which a rule is exposed by designating the rule as not economically significant or not significant at all, or by providing only opaque and general information about costs and benefits.  Finally, they may be able to parlay statutory deadlines or the end of a President’s term effectively to shorten the period for OIRA review, thereby decreasing the level of scrutiny. Continue reading "Strategic Interactions Between Administrative Agencies and the White House: A Welcome Look into the Black Box of the Executive Branch"

 
 

Tort Law Meets Inheritance Law

John C.P. Goldberg & Robert H. Sitkoff, Torts and Estates: Remedying Wrongful Interference with Inheritance, 65 Stan. L. Rev. 335 (2013).

In their forthcoming article, Torts and Estates: Remedying Wrongful Interference with Inheritance, John C.P. Goldberg and Robert H. Sitkoff illustrate the potential pitfalls of recognizing causes of action without any awareness or consideration of how other areas of law deal with claims arising out of similar facts.  They argue that courts’ relatively recent recognition of the tort of wrongful interference with an expected inheritance is ill-conceived for two reasons.  First, it is unnecessary given the remedies available under inheritance law—a will contest or action for restitution by way of constructive trust.  Second, it conflicts with specialized inheritance law doctrines and procedures (such as inferences, presumptions, and burden shifting schemes, higher evidentiary standards, bench trials, and short statutes of limitations) developed to address the evidentiary challenges raised when the only person who can conclusively clarify or confirm his donative wishes is dead.  A disappointed expectant beneficiary who brings a claim for tortious interference with an expected inheritance will have fewer procedural hurdles to clear because courts have rejected or ignored the rules and procedures that apply to will contests and restitution claims.  A tort plaintiff may also recover substantial damages—including nonpecuniary and punitive damages—remedies that are unavailable in a will contest or action for restitution.

Goldberg and Sitkoff further argue that interference with expected inheritance claims are problematic conceptually.  Since a donor’s wishes are the guiding principle of inheritance law, a disappointed expectant beneficiary has no independent right to the donor’s property absent the donor’s exercise of his freedom of disposition.  As such, when a disappointed expectant beneficiary brings a wrongful interference with an expected inheritance claim, she is suing to vindicate the donor’s right to freedom of disposition rather than her own rights.  However, as every first year law student knows, a tort plaintiff cannot recover for a wrong done to another person.  She can only sue for a wrong done to her.  Of course, we suspect that a disappointed expectant beneficiary doesn’t sue only (or primarily) to vindicate the donor’s freedom of disposition but to secure her interest in the property.  While that may be the case, Goldberg and Sitkoff point out that the law cannot recognize her interest in the decedent’s property independent of decedent’s wishes because such interest would directly conflict with decedent’s freedom of disposition. Continue reading "Tort Law Meets Inheritance Law"

 
 

Free Access to Law – Is It Here to Stay? Research Publications of Interest for Anybody who Believes In The Rule of Law

• Free Access to Law – Is it Here to Stay?, Local Researcher’s Methodology Guide (2010).
• Free Access to Law – Is it Here to Stay?, Environmental Scan Report (2010).
• Free Access to Law – Is it Here to Stay?, Good Practices Handbook (2011).

“What is a Legal Information Institute when the transcripts of judgments are refused for publication – even by the courts themselves – by the company contracted to provide the transcription service on some very shady grounds of copyright?” That is one of the questions lingering in the wake of a very ambitious recent Free Access to Law project.1

The mission of the Legal Information Institutes (LIIs) it to maximize free access to public legal information such as legislation and case law from as many countries and international institutions as possible. To that end they produced the publications linked above. The “Local Researcher’s Methodology Guide” explains the reasons for the “Free Access to Law – Is It Here to Stay?” project in detail, and then provides instructions for researchers, including an “environmental scan matrix” and associative questionnaires. Continue reading "Free Access to Law – Is It Here to Stay? Research Publications of Interest for Anybody who Believes In The Rule of Law"

 
 

Changes at Jotwell

• Brian Tamanaha has stepped down as co-Section Editor of the Jurisprudence Section but will remain a Contributing Editor; Robin Kar will be stepping up to co-edit the section with Brian Bix. Brian T. has been a great editor and he leaves the section in excellent shape and in capable hands.

• This week we rolled out version 1.3 of the Jotwell theme; few if any of the many changes under the hood should be visible to readers, but if you notice anything more odd or out-of-place than usual, please let us know.

• One major consequence of the new theme is that we will be able to have a group of mini-sections sharing virtual real estate in a new section we plan to call ‘Lex”. These mini-sections will provide a home for topics in law which, due to a smaller scholarly production, might not merit publishing a review every month. We’re only just starting to put this together – suggestions for topics we should cover and for people who might be managers of mini-sections are both welcome – so it likely will be a few months before this section debuts.

• Jotwell’s student editors will soon be graduating or heading off to other summer employment. Advertisements for a Miami Law student to serve as summer editor will be going up soon, but any Miami Law student who reads Jotwell and responded to this message would have an inside track.

 
 

Are Risks Wrong?

John Oberdiek, The Moral Significance of Risking, 18 Legal Theory 339 (2012).

In The Moral Significance of Risking, John Oberdiek offers a theory of why risk imposition is prima facie wrong.  Oberdiek admits that his argument will only be persuasive if he applies it to risk imposition in its purest form (what he calls “risking”).  Risking’s moral significance – if it has any – must be based on the imposition of the risk of harm, and not the harm itself. In other words, if risking is wrong, it shouldn’t matter in our evaluation of it that the risk of injury never ripened into an injury. Thus, second-order effects of risking on the victim, such as emotional distress, cannot justify the conclusion that risk-imposition is wrong. Similarly (although Oberdiek does not discuss this) instrumentalist accounts for imposing liability on the basis of risk obviously cannot explain why risking is wrong, given that risking is significant to an instrumentalist only to the extent that deterring it would result in the optimal level of harm.

Although Oberdiek claims that his article is about risk imposition from the perspective of moral philosophy, he is quite conscious of the fact that his argument, if accepted, would reshape debates in law, especially tort law. Further, he recognizes that establishing the fact that risking is wrong does not answer the question whether any particular act of risking should be condemned or should be the basis of a liability judgment.  His only point in this article is to say that risking is a prima facie wrong, and it may be the case that it is justified in many situations in the balance of reasons, or excused, or, in the case of private law, left unrecognized like other moral wrongs that do not generate liability. Continue reading "Are Risks Wrong?"

 
 

Embracing Queer Childrearing

Clifford Rosky, Fear of the Queer Child, 61 Buff. L. Rev. (forthcoming 2013), available at SSRN.

For the nascent lesbian and gay rights movement (before “queer” was repurposed), children and young adults were the most taboo of rights topics.  Gay rights meant sexual liberation, as popularized in films like “Cruising” and songs like the Village People’s “YMCA.”  Apart from Harvey Fierstein’s gay mama role in “Torch Song Trilogy,” queer parents were invisible.  Widespread allegations of “recruiting” young people led advocates to avoid discussions of queer influences on children.  As a gay youth activist in the mid-1980s, I remember the resistance and anxiety around gay youth issues within the national and local gay rights movement.  Even in the ensuing decades, advocates’ references to gay and lesbian parents defensively emphasized similarities to straight parenting.  Only recently have we begun to consider differences between queer and straight parents without a heterosexist lens.  Pop culture, from “Modern Family” to the “New Normal,” has recently given us a window for reconsideration, albeit one rife with bubble gum stereotypes.

Cliff Rosky avoids such traps with his latest work, Fear of the Queer Child.  There, he unpacks the long history of heterosexism in parenting and delineates its remnants.  In his previous work, Like Father, Like Son: Homosexuality, Parenthood, and the Gender of Homophobia, Rosky assessed judicial treatment of gay and lesbian parents though gender-differentiated stereotypes in custody and visitation cases.  There, his deft articulation of the interrelationship between sexual identity and gender stereotypes in the parenting context stood out as especially new.  His assertion was that gender – of the parent, the child and the judge – plays a dominant role in the elaboration of homophobic and heterosexist stereotypes about gay and lesbian parents.  The proof he deployed confirmed my long-held belief in the centrality of gender to heterosexism.  In particular, he found that “recruitment” was a charge levied against parents of sons, and explored how the male judges were more likely to adhere to stereotypes about gay and lesbian parents.  Like Father, Like Son avoided a facile identitarianism and did not get stuck in a lengthy refutation.  Fear of the Queer Child holds even more potential to affirm the positive and yes, different, nature of queer parenting. Continue reading "Embracing Queer Childrearing"

 
 

Obamacare and Lower-Income Workers

David Gamage, Perverse Incentives Arising From the Tax Provisions of Healthcare Reform: Why Further Reforms Are Needed to Prevent Avoidable Costs to Low- and Moderate-Income Workers, 65 Tax L. Rev. 669 (2013), available at SSRN.

What if Obamacare changes the patterns of lower-income work?  Murmurs in the news suggest that this is happening, for example through increased use of part-time schedules.  In his forthcoming article, David Gamage explains the powerful incentives that the Affordable Care Act (ACA) presents to employers to ensure that lower-income workers will be insured through public exchanges rather than employer-provided health insurance.  These incentives to differentiate apply for a huge number of employees, as they apply until households have income of between 2.25 and 3.5 times the poverty level.

Gamage supports the ACA, but argues that it presents lower-income workers and their employers with a catch-22.  If employers provide health insurance, workers will overpay for it.  But if employers do not provide health insurance, workers cannot access traditional full-time-with-benefits jobs. Continue reading "Obamacare and Lower-Income Workers"

 
 

Litigating Health Rights

Colleen Flood, Charter Rights and Health Care Funding: A Typology of Canadian Health Rights Litigation, 19 Annals Health L. 479 (2010).

When lawyers (or, at least, U.S.-trained lawyers) think of legal rights, they think of rights enforceable in courts.  While a “right to health” or “right to health care” is widely recognized in international legal conventions and national constitutions, judicial decisions effectuating these rights are quite uncommon.  Moreover, it is not altogether clear that litigation is the most effective approach to realizing these rights.

Colleen Flood is one of Canada’s leading health law professors.  In Charter Rights & Health Care Funding:  A Typology of Canadian Health Rights Litigation, (which appears both at 19 Annals of Health Law 479 (2010) and as a chapter in Grand Challenges in Health Law and Policy (Catherine Regis and Robert Kouri, eds., 2010), Professor Flood and Y.Y. Brandon Chen analyze health care rights litigation in Canada.  They identify several categories of cases in which health care rights have been asserted in Canadian courts, classifying the cases by whether the claim sought to establish a positive or negative right, was accepted or rejected by the court, and in fact succeeded or failed to establish the right the claimant asserted. Continue reading "Litigating Health Rights"

 
 

Family Matters: The Sexual Revolution in American Politics

Robert O. Self, All in the Family: The Realignment of American Democracy Since the 1960s (Farrar, Straus and Giroux, 2012).

After reading Robert Self’s ambitious new book, it is almost impossible to imagine a satisfying history of the last half-century of American politics that does not place gender, sexuality, and the family at the center of analysis. Self’s story begins at the dawn of the Kennedy Administration and ends with John Kerry’s 2004 presidential defeat but focuses primarily on the period between the mid-1960s and the mid-1980s, when radicals, liberals, and conservatives contested and transformed the meaning of family. The central trope of All in the Family is a shift in the reigning paradigm of American politics from “breadwinner liberalism” to “breadwinner conservatism.” Breadwinner liberalism, the organizing principle of the New Deal welfare state, promoted households headed by male breadwinners supporting dependent wives and children. Government policies—from Social Security to the tax code to military benefits to labor and employment regulations—shored up this family wage model of household political economy.

By the late 1960s, breadwinner liberalism was under siege from the left. Feminists challenged the idealization of domesticity and the primacy of homemaking and motherhood over gainful employment for women. Anti-war activists questioned the equation of bellicose masculinity with patriotic citizenship. The gay rights and gay liberation movements mobilized against cultural and political norms that violently repressed and pathologized homosexuality. These movements succeeded in unseating breadwinner liberalism, Self writes. But ideological fragmentation, economic scarcity, and vehement opposition prevented them from inventing a replacement. Instead, in the second half of the 1970s and into the 1980s, breadwinner conservatism filled the vacuum, fueled by antifeminism, anti-statism, homophobia, and the displacements of de-industrialization. This new breadwinner ideal—even less consonant with lived reality than it had been in the 1950s and 1960s—celebrated unfettered capitalism, denigrated government, and combated the uncertainties of post-industrial life with the unwavering conviction that not only countercultural permissiveness but liberal economic policies threatened social order. Abortion rights, feminism, the Equal Rights Amendment, the “homosexual agenda,” and “secular humanism” joined busing, affirmative action, and anti-war protesters as targets of rage and antipathy. Continue reading "Family Matters: The Sexual Revolution in American Politics"

 
 

Assessing How Lawyers Keep Their Own Houses Clean: Baseline Report on Outcomes-Focused Regulation

A fundamental tenet of lawyer regulation is that professionals should keep their own houses clean. The enactment of the Legal Services Act of 2007 (LSA) in the United Kingdom (UK) marked a significant shift in the approach to regulation of lawyer conduct. In addition to creating a new mechanism for handling consumer complaints, the LSA adopted a new regulatory regime that represented a radical departure from the traditional approach in which regulators prosecute complaints based on alleged rule violations. With the adoption of the LSA, lawyer regulation shifted to outcomes-focused regulation (OFR). OFR focuses on high level principles and outcomes that drive the provision of legal services.1 OFR requires an articulation of indicators to determine whether outcomes have been achieved.

In an effort to evaluate the new regulatory regime and how its effectiveness is being monitored, the Legal Services Board (LSB) in the UK conducted a comprehensive study of the legal services industry and regulation in England and Wales. The results of that study are set forth in a recent publication, Market Impacts of the Legal Services Act of 2007—Baseline Report (Final) 2012, (“Baseline Report”).2 Continue reading "Assessing How Lawyers Keep Their Own Houses Clean: Baseline Report on Outcomes-Focused Regulation"

 
 

Res Ipsa Loquitur & Employment Discrimination?

William Corbett, Unmasking a Pretext for Res Ipsa Loquitur:  A Proposal to Let Employment Discrimination Speak for Itself,  62 Am. U.L. Rev. — (forthcoming, 2013), available at SSRN.

In this article Professor William Corbett does an excellent job of explaining the “tortification” of discrimination law and how the McDonnell Douglas analysis can be viewed as a form of the res ipsa loquitur doctrine. Professor Corbett’s analysis of this issue provides a fresh look at a well-known tort doctrine, and its possible application to discrimination law.

In the first part of his article, Professor Corbett examines how employment discrimination has been transformed by tort law over time. He explains how, subsequent to the passage of Title VII, tort law has been “vigorously infused” into discrimination doctrine. Professor Corbett traces how this transformation has occurred over time — looking at how tort law principles can be found in Price Waterhouse v. Hopkins and section 1981a of the Civil Rights Act of 1991. He also demonstrates how the move toward tort law can be found in the types of claims being pursued by plaintiffs, as well as the limited availability of the class action mechanism for workforce victims. Finally, looking at a number of more recent Supreme Court cases, he shows how tort principles now play a major role in employment discrimination cases. Continue reading "Res Ipsa Loquitur & Employment Discrimination?"

 
 

Political Splits

Erik Swyngedouw, Interrogating post-democratization: Reclaiming egalitarian political spaces, 30(7) Political Geography 370 (2011).

Erik Swyngedouw’s exploration of the spacing of politics is embedded within a trajectory of work in political theory (and political philosophy) that asserts the specificity and distinctiveness of the political in the face of left politics’ conventional emphasis on the economy and domination. At the heart of this body of work is post-foundationalism – a philosophical project that recognizes the significance and necessity of ongoing moves to ground political and social order, while simultaneously refusing the notion of a pre-existing, non-contingent base or essence, whether derived from human nature, democracy, rights, justice, or the people.

Working within this framework, Swyngedouw’s article opens with a challenge: how to understand the coexistence and relationship between insurrectional political activism and violent discontent, on the one hand; and post-democratic, technocratic, consensus-based politics, on the other. Swyngedouw seeks to explore this tension through three moves: through the character of the post-political; the politics/political distinction in post-foundational thought; and the question of egalitarian political space. Continue reading "Political Splits"

 
 

Building the Federal Judiciary

Scholars working within the field of “Federal Courts” have, from the beginning, been concerned about the past and future of the federal courts as instruments of government. But the beginning of Federal Courts as a field was in the early 1950s, several decades after the Judiciary Act of 1891 created the intermediate circuit courts of appeals and almost three decades after the Judiciary Act of 1925 reconfigured the relationship between the Supreme Court and all other courts in the United States deciding questions of federal law. And the trajectory that the federal judiciary has traveled since that time has been relatively consistent. To the extent that this may have resulted in a failure to appreciate the forces that had already made the federal courts so powerful by the time Federal Courts came into its own, Justin Crowe’s recent book Building the Judiciary offers a helpful corrective.

Building the Judiciary seeks to answer questions about the puzzle of judicial institution building: “How did the federal judiciary in general, and the Supreme Court in particular, transcend its early limitations and become a powerful institution of American governance? How, in other words, did we move from a Court of political irrelevance to one of political centrality?” (P. 2) The book provides a “holistic historical narrative” that focuses on “‘architectonic’ politics: the politics of actors seeking to shape the structures of government in order to further their own interests.”(P. 6.) Crowe contrasts this focus with the “emphasis on judicial prerogative” that he attributes to a “prevailing but problematic ethos of judicial exceptionalism.” (P. 3.) The result of this ethos, Crowe contends, has been the neglect of important questions: “In seeking to understand how judges rule, we have largely neglected the conditions that have made it possible for judges to rule; in emphasizing how the judiciary acts upon politics, we have minimized the ways in which it is equally acted upon by politics.”(P. 5.) Continue reading "Building the Federal Judiciary"

 
 

The D.C. Circuit as “Hostile Stranger”

Bruce Kraus & Connor Raso, Rational Boundaries for SEC Cost-Benefit Analysis, 30 Yale J. on Reg. 2 (2013 forthcoming), available at SSRN.

A happy account of judicial review of agency action holds that courts and agencies enjoy a “partnership.” Judge Leventhal provided a classic statement:

[A]gencies and courts together constitute a “partnership” in furtherance of the public interest, and are “collaborative instrumentalities of justice.” The court is in a real sense part of the total administrative process, and not a hostile stranger to the office of first instance. Continue reading "The D.C. Circuit as “Hostile Stranger”"

 
 

Why Would the Social Behavior of Good Firms Improve and that of Bad Firms Worsen?

Brayden King & Mary-Hunter McDonnell, Good Firms, Good Targets: The Relationship Between Corporate Social Responsibility, Reputation, and Activist Targeting, in Corporate Social Responsibility in a Globalizing World (2012), available at SSRN.

The global financial crisis fueled public discontent with the economic and political outcomes of capitalist regimes. This caused a mistrust of large businesses, with outrage towards the multinational banking sector in particular. It is therefore no surprise that corporations are increasingly the targets of mass social protests. To take a few prominent examples, in the US, the Occupy Wall Street movement has been challenging the legitimacy of American capitalism, and demanding a deep transformation in the relationship between government, corporations, and the public. In Spain, against a background of skyrocketing unemployment rates, the 15-M Movement has been calling into question the distribution of political power and institutionalized corruption. At the same time, in Israel, unprecedented mass protests during the summer of 2011 called into question the excessive market power of conglomerates, the high cost of basic necessities, and the contraction of the welfare state. These instances of mass social protest pose a threat to corporations’ and public agencies’ legitimacy, reputation and smooth operations.

How do corporations respond to, and manage, the threats imposed by social activism, and what are the consequences of their strategies? One would expect, and indeed hope, that democratic pressures – i.e. social activism – would render irresponsible corporations more responsive to societal expectations and demands. And second, we would like to think that social activism is targeted at irresponsible firms, whereas socially responsive and responsible corporations are rewarded inasmuch as they are less likely to be targeted by activists. King and McDonnell investigate the latter expectation and find that precisely the opposite is true. Continue reading "Why Would the Social Behavior of Good Firms Improve and that of Bad Firms Worsen?"

 
 

Generals Can Sometimes Be More Pro-Democratic Than Politicians

Ozan O. Varol, The Democratic Coup d’État, 53 Harv. Int’l L.J. 292 (2012).

How do liberal democracies deal with threats to liberal constitutionalism, when those threats come from political parties willing to use the existing mechanisms of liberal constitutionalism to gain power–and then eliminate liberal constitutionalism? This question was a concern for scholars of constitutionalism several generations ago. More recently, the phenomenon has been captured in the slogan, “One person, one vote, one time,” associated with some positions taken at the first stage in a transition away from authoritarianism–though perhaps only to another form of authoritarianism. Transitional situations are one thing, though; established liberal democracies are another. The experience of Weimar Germany was taken as an illustration–perhaps inapt in detail but useful for thinking through the problem–of the use by antidemocratic forces of democratic means to attain power.

After World War Two Germany responded by embedding in its Basic Law the idea of militant democracy, developed during the war by the exile political theorist Karl Loewenstein. Many other nations have followed suit. Militant democracy extends to political parties the idea that nations can permissibly use force against subversive individuals. According to the idea of militant democracy, liberal democracies can permissibly ban antidemocratic political parties and deny their members the ability to serve in public positions, even in the bureaucracy (because they might use their discretion to favor their antidemocratic comrades). Militant democracy is constitutionalism’s resolution of the problem in political theory of whether and why we should tolerate the intolerant. And, like that problem, the one militant democracy addresses is difficult to resolve. Power-holders may well misdescribe political opposition as a threat to democracy itself, and seek to suppress political parties that are “merely” forceful opponents of their programs. Continue reading "Generals Can Sometimes Be More Pro-Democratic Than Politicians"

 
 

Adjudging The Heuristics Debate

Mark Kelman, The Heuristics Debate (Oxford 2011).

In his accessible and thoroughly enjoyable book The Heuristic Debate, Mark Kelman demonstrates for the benefit, primarily, of legal scholars and policy makers, that there is not just one, but there are two challenges, or alternatives, to the economists’ rational choice model of decision making that has so influenced law and policy over the last few decades, both of which come to us from the discipline of cognitive psychology, with one of which — objections coming from the “heuristics and biases” school — lawyers are largely familiar, but the second of which – those coming from the group Kelman labels the “fast and frugal school” –  we are not. But we should be. The second challenge, Kelman suggests, cuts quite a bit deeper than the first, and yields insights of relevance to both law and policy which are at right angles with those offered by rational choice theorists and the heuristics and biases school both. Mark first presents these two schools – heuristics and biases (hereinafter HB) and fast and frugal (hereinafter FF) — as participants in an intra-cognitive psychology debate, as that is how both schools originated, rather than as responses to the economists’ rational choice model of decision making, much less the latter’s deployment in law and policy. Nevertheless, and as Mark eventually argues, it’s also useful to understand both schools in their quite differing relations to the rational choice model of decision making with which they are both in conflict. (Mark calls the latter “rat choice” for purposes of brevity, but I won’t, I’ll call it RC instead.)

I’ll quickly summarize what I understand as the book’s most basic claims, then make a perhaps unwarranted inference, although I hope not, that will sharpen and recast the differences between them but also sharpen the differences of the fast and frugal school with both the heuristics and biases school and the rational choice school.  My basic claim is that it is those differences, between FF on the one hand, and both RC and HB, that have the potential to reframe fundamentally the place of rational choice in our conception of law, and our understanding of alternatives to it.  By contrast to those differences, and that challenge, the familiar challenges posed to RC by HB look much more like friendly amendments – provocative, thoughtful, and fun amendments, but amendments all the same.  In my concluding remarks I will aim to cast somewhat differently what I take to be the most imaginative and interesting but also the weakest part of Mark’s book, to wit the discussion of Holmes and Langdell as exemplars of HB and the FF schools respectively and then finish up with some quick remarks about the role of these models of cognition in legal scholarship and legal policy debates quite generally. Continue reading "Adjudging The Heuristics Debate"

 
 

Corporate Criminality and Genocide

Michael J. Kelly, Prosecuting Corporations for Genocide Under International Law, 6 Harv. L. & Pol’y Rev. 339 (2012).

As his title suggests, Professor Michael J. Kelly offers a sound legal argument for prosecuting corporations for genocide under international law.  While there is much to admire about this article, perhaps its greatest strength is the straightforward manner in which Kelly systematically refutes possible challenges to his position and the even-handed tone Kelly employs when discussing the often divisive topic of corporate regulation.  Rather than resorting to polemics or incendiary rhetoric, Kelly begins with the basic premise that “anyone who commits genocide should be held accountable” (339).  Noting that international law holds individuals, states, and organizations accountable for genocide, Kelly asks simply: “Why not corporations” (339)?

Kelly grounds much of his argument for prosecuting corporations for genocide on the lack of distinction between a legal and natural person in the 1948 Genocide Convention (339).  Applying the interpretative framework set forth in the Vienna Convention on the Law of Treaties, Kelly moves from the treaty text to the travaux preparatoires, where he finds no definitive evidence that delegates intended to include or exclude corporations from the treaty’s reach.  Still, citing the “plain meaning of the term ‘persons’ at the time” and the drafters’ decision not to delineate between legal and natural persons, Kelly argues that corporations should be considered persons under the convention (346).  He bolsters this argument by noting an accordant view from Harold Koh, Legal Advisor to the U.S. Department of State, and by appealing to our basic sense of fairness to recognize that the unprecedented growth and influence of corporations requires a similar level of responsibility (347). Continue reading "Corporate Criminality and Genocide"

 
 

Rethinking Perpetual Trusts

Lawrence W. Waggoner, From Here to Eternity: The Folly of Perpetual Trusts, Univ. of Michigan Public Law Working Paper no. 259, available on SSRN.

One of the notable current developments in modern estate planning is that of the dynasty trust, a device for passing family wealth though the generations without the imposition of estate, gift or generation-skipping tax along the way.  Fueled by the combination of clients seeking a measure of immortality, state legislatures seeking to attract trust business, and lawyers and trust companies seeking to secure a “client” that will last for generations, the device has become a must-consider technique for wealthy Americans.

Professor Lawrence Waggoner does not think dynasty trusts represent good public policy, a theme he has addressed in many of his earlier writings.  However, his argument in this piece is slightly different.  Addressing his remarks not only to state legislatures, but to those clients considering implementing a dynasty trust, he contends that dynasty trusts may not serve any useful interest for the very clients clamoring to establish them.  His argument takes two major forms.  First, utilizing some mathematical modeling, he illustrates how the passage of time dramatically multiplies the number of eligible trust beneficiaries of a hypothetical dynasty trust and dramatically dilutes their genetic relationship to the individual who originally establish the trust.  For example, Prof. Waggoner calculates that some 325 years after its inception, a typical dynasty trust might have over 100,000 beneficiaries, and after 450 years might have well over one million such beneficiaries. Continue reading "Rethinking Perpetual Trusts"

 
 

CyberHealth: Computerizing Personalized Comparisons of Treatment Effectiveness

Economists are beginning to lose faith in technological progress.  As one wag puts it: instead of cancer cures, “Captain Kirk & the USS Enterprise, we got the Priceline Negotiator and a cheap flight to Cabo.” Even formidable companies like Google have fled the health field, daunted by the complex legal environment.  Some have called for radical deregulation as a solution. But a more viable approach is to turn to the work of some of the smart, committed, and impartial legal scholars who are pioneering the field of cyberhealth law. Particularly instructive is Sharona Hoffman & Andy Podgurski’s article, Improving Health Care Outcomes through Personalized Comparisons of Treatment Effectiveness Based on Electronic Health Records.

In an information economy, even cheesecake can be optimized using data-driven methodology.  Unfortunately, leading health care providers often resist such methods of improvement. Pharmaceutical firms have sometimes continued to market drugs even after reports emerge that undermine the rationale for taking the drug, let alone paying for it.That troubling method of attaining short term profits at the cost of long term sustainable business models needs to be countered by sophisticated methods of analyzing (and disseminating) data on the real effect of medical interventions.  Hoffman and Podgurski help develop a legal and technical framework for assuring that happens. Continue reading "CyberHealth: Computerizing Personalized Comparisons of Treatment Effectiveness"

 
 

Tattoo You

Aaron Perzanowski, Intellectual Property Norms in the Tattoo Industry, Wayne State University Law School Research Paper No. 12-14, available at SSRN.

Tattooing has gone mainstream.  In the introduction to Intellectual Property Norms in the Tattoo Industry, Aaron Perzanowski lets the facts speak for themselves:  “An estimated twenty-one percent of adults in the United States—more than sixty-five million Americans—have at least one tattoo. For those under the­ age of 40, that percentage nearly doubles.  Not surprisingly, the tattoo business is booming. By some estimates, the U.S. tattoo industry generates $2.3 billion in annual revenue.”

Small wonder, then, that Perzanowski has tackled the originality and copying norms adopted by the communities of tattooers, extending in certain respects – and distinguishing in others – recent work on informal IP norms among stand-up comics, fashion designers, French chefs, magicians, roller derby queens, and fans of jam bands.  The first great contribution that Perzanowski makes in this paper is assembling and describing a collection of qualitative data about the relationship between formal IP rules and informal norms among yet another group of people with their own distinct sets of creative and copying practices.  It’s not surprising, perhaps, that despite the mainstream popularity of tattooing, tattooers continue to regard themselves as outsiders, pirates even, and that they have little use for or reliance on formal IP rules.  Yet unlike their counterpart comics, designers, chefs, and magicians, tattooers have ample opportunity to integrate their work with copyright law. Tattoos are copyrightable subject matter, and infringement claims, while rare in practice, are hardly unimaginable legally.

What makes this paper compelling is that Perzanowski goes beyond the instinct to look at informal anti-copying norms in tattooer communities primarily as substitutes for or complements to formal copyright law.  The insight offered by earlier work on comics, fashion designers, and so on has been that copyright’s formal structure is often overbroad, because creative communities may thrive even when copyright falls short.  Informal social norms can pick up the slack, guiding creative practice and policing copying where needed.  The lesson is specific:  efforts to extend and broaden copyright law in those domains may cause more harm than good. Continue reading "Tattoo You"

 
 

Economic Analysis of Personal Jurisdiction

Daniel Klerman, Personal Jurisdiction and Product Liability, 85 S. Cal. L. Rev. ___ (forthcoming 2013).

Here is a practical problem: Where should a person who was harmed by a product be able to sue the manufacturer of that product?

Here is a complex judicial answer to that problem: Combine ½ cup state sovereignty and ½ cup due process, cook on low simmer and stir with circular reasoning, adding three or four new factors every twenty years. After ingesting this concoction you might feel a bit ill, as did one civil procedure student who wrote on an exam: “personal jurisdiction is a pain in the _____” (original language omitted). Felix Cohen said it more eloquently when he described the kind of reasoning that still passes for personal jurisdiction doctrine as “transcendental nonsense,” but the student’s reaction is more direct.

Daniel Klerman’s new article, Personal Jurisdiction and Product Liability, is a welcome antidote to the combination of creeping transcendentalism in the Case of the Giant Shears (the Supreme Court’s most recent personal jurisdiction case, more commonly known as J. McIntyre v. Nicastro), and the proliferation of factors that characterizes personal jurisdiction doctrine today. Personal jurisdiction is an area of law for which economic analysis especially well-suited because of the policy implications entailed. As hard as it is to imagine, Klerman’s is the first article to apply economic analysis to personal jurisdiction doctrine. I am glad he was the one to do it. Continue reading "Economic Analysis of Personal Jurisdiction"

 
 

Against the Law?

W. Jonathan Cardi, Randy Penfield & Albert Yoon, Does Tort Law Deter?, Wake Forest Univ. Legal Studies Paper No. 1851383 (2011), available at SSRN.

Why have tort law? After all, other laws and institutions cover a lot of the same ground. If we want to punish bad actors, there is criminal law. If we want to ensure safety, there is regulatory law. If we want to aid injury victims, there is public and private insurance. What’s left for tort?

A standard answer is that tort, with its threat of liability, deters people from engaging in conduct that unduly risks harm. Tort law is needed for this purpose, the answer continues, because a good deal of risky conduct falls outside the ambit of criminal and regulatory law. For example, injuring someone by careless driving usually isn’t a crime, so the threat of negligence liability fills the void. Of course this answer assumes that the prospect of liability will actually induce people to act more carefully. Does Tort Law Deter?, by Professors Cardi, Penfield, and Yoon, is an innovative attempt to harness social science methods to investigate that assumption. Continue reading "Against the Law?"

 
 

Integrating Tax and Development Policy

A quiet, but powerful, movement seems to be emerging in the field of international tax – the explicit recognition that development policy is integral to any analysis of international tax policy.1 Put differently, if the initial distribution of resources affects the return on resources, which itself affects the taxation of resources and thus the provision of public goods (which themselves feed back into the return on resources), distribution must be incorporated into the efficiency analysis of international taxation rather than thought of as a second, unrelated “fairness” step.2

Mitchell Kane contributes to this evolution in his thoughtful new article, Bootstraps and Poverty Traps: Tax Treaties as Novel Tools for Development Finance, 29 Yale J. Reg. 255 (2012). In this article, Kane attempts to integrate development economics into the tax treaty calculation itself – the exact opposite of traditional tax treaty policy. Originally, the policy behind tax treaties was to lower tax barriers to cross-border trade – as barriers dropped, trade increased, making everyone better off. What this theory did not take into account, however, was that this only worked for countries between which trade would flow. That is, countries with roughly similar economies. But what about small, capital poor countries? What would they get in return for signing a tax treaty with a wealthy country? The emerging consensus is: nothing. So why would they ever sign a treaty with a wealthy country such as the United States? Continue reading "Integrating Tax and Development Policy"

 
 

Obamacare and the Competing Conceptions of Insurance

Kenneth Abraham, Four Conceptions of Insurance, ___ U. Pa. L. Rev. ___ (forthcoming 2013), available at SSRN.

In the highly contentious debates over the Patient Protection and Affordable Care Act (ACA or “Obamacare”), different conceptions of health insurance vied for supremacy. But the struggle occurred silently. The debaters never explicitly acknowledged—and may not have completely understood—that the foundation of their disagreement might be their underlying sense of what health insurance is and ought to be. Ken Abraham has ably shone a light on this silent struggle in his recent article, Four Conceptions of Insurance.

Abraham lays out and critiques four views of insurance: as contract, public utility, product, and regulator. In the end, his conclusion is simple. All four visions have some explanatory power for the content of modern insurance law, which necessarily means that none of the four visions is fully descriptive of modern practice. Modern law sometimes treats insurance as contract, sometimes as public utility, sometimes as product, and sometimes as regulator. But one’s preferred conception of insurance has much to do with one’s preferences as to what the law should be. When law treats insurance as a contract, those who see insurance as akin to a public utility are quite unhappy. Continue reading "Obamacare and the Competing Conceptions of Insurance"

 
 

Reconsidering Work and Family with “the Marriage Equation”

Deborah A. Widiss, Changing the Marriage Equation, 89 Wash. U. L. Rev. 721 (2012).

Every day, married couples make decisions about how to allocate work within their relationships. Some couples specialize, with one person performing a breadwinning role and the other doing the lion’s share of caregiving tasks. Others divide breadwinning and caregiving tasks fairly evenly, and still others perform the breadwinning role together while outsourcing caregiving to housekeepers, gardeners, and nannies. When spouses make a decision about how to allocate work, the decision often feels like a private choice. Feminist scholars have long argued that, to the contrary, choices regarding breadwinning and caregiving are largely shaped, or even coerced, by law.

Deborah Widiss’s article Changing the Marriage Equation provides a new way of analyzing the complicated interaction of law, social norms, and individual choice that leads to gendered roles in marriage. Widiss argues that choices regarding the allocation of paid and care work are profoundly shaped by three factors, which together make up what she calls the “the marriage equation.” Two of the factors of the marriage equation are legal—sex-based classifications within marriage law, and the substantive law of marriage. The third is social—the gender norms of marriage. The article argues that all three factors affect couples’ decisions about the allocation of labor. Widiss also argues that the first factor, sex-based classifications within marriage law, was largely dismantled during the equal protection revolution of the 1970s, but that the other two factors continue to work together to produce gendered outcomes in the allocation of work within marriages. She then suggests that same-sex marriage can provide a natural experiment for assessing the relative strength of substantive marriage law and gender roles within the marriage equation. Continue reading "Reconsidering Work and Family with “the Marriage Equation”"

 
 

Uncomfortable Marriage

Yuvraj Joshi, Respectable Queerness, 43 Colum. Hum. Rts. L. Rev. 415 (2012).

Much legal scholarship about same-sex marriage by liberals presents arguments for judges to use when interpreting constitutional rights. Another current of critical research, from queer, feminist, or other left scholars, explores how expanding access to marriage may disadvantage those who will not or cannot marry, undermine an intersectional queer politics, or both. Much less writing has explored the impact, for gay men and lesbians who might marry or who have married, of the lobbying and litigation that made doing so possible.

Some reasons for this relative neglect are obvious. It may be too early to have meaningful data. The question may be one for sociologists. But surely another is that a lot of people assume that same-sex marriage is a good thing for at least those who take it up. Yuvraj Joshi’s paper joins the critical research about the potential harms arising from the campaign for same-sex marriage and its realization for those who wouldn’t walk down the aisle even if they could. But it also enriches legal scholarship by exploring the psychological effects of same-sex marriage for those who marry. Continue reading "Uncomfortable Marriage"

 
 

Considering the Civil Jury

Jason M. Solomon, The Political Puzzle of the Civil Jury, 61 Emory L.J. 1331 (2012).

The civil jury is in this year.  In The Political Puzzle of the Civil Jury, Jason Solomon examines the role of the civil jury as a political institution—in other words, the role of the jury in democracy.  Seeking to begin a discussion in the literature on whether the civil jury serves as a political institution, Solomon exhaustively and critically examines the justifications for the civil jury in this role.  Solomon’s is one of several excellent recent articles on the civil jury; others include John Langbein’s The Disappearance of the Civil Jury, and Darrell Miller’s Historical Tests, (Mostly) Unbalanced Rights, and What the Seventh Amendment Can Teach Us About the Second.

Solomon begins with a provocative argument that some of the most important cases in the last four terms of the Supreme Court, including Snyder v. Phelps, Wyeth v. Levine, Exxon Shipping Co. v. Baker, and Wal-Mart Stores, Inc. v. Dukes, reflect a distrust of the civil jury and a concern that juries are deciding law-like questions.  As a result, Solomon argues, we must continue to evaluate the jury.  In doing this in the past, the focus has been on whether the jury has the ability to decide cases effectively.  The ready response here has been that the ability of juries to decide cases matches that of judges.  In addition to an adjudicative role, however, some scholars argue that the jury serves as a political institution.  Solomon argues that this justification should be fully assessed, and the competencies of juries to judges should be compared. Continue reading "Considering the Civil Jury"