Yearly Archives: 2014

Jotwell Winter Break 2014

Jotwell is taking a short winter break. Posting will resume Monday, January 5, 2015.

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

(If you have a moment, please could you vote for Jotwell at the ABA Law Blog 100 competition (look under “profs”)? Do it now, before you forget.)

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Does Tort Law Empower?

Ori J. Herstein, How Tort Law Empowers, 64 U. Toronto L.J.___ (2014) (forthcoming), available at SSRN.

Ori Herstein’s How Tort Law Empowers takes on the question of whether and how tort law empowers victims. Herstein presents himself as a friendly critic of civil recourse theory, and offers an amendment that he claims makes the theory both more plausible and less interesting. Like many friendly amendments, it is an offer that must be carefully examined before it is accepted.

Herstein begins by noting that one of the most important and interesting contributions by civil recourse theory is the idea that tort law empowers tort victims. This contribution comes from the work of John Goldberg and Ben Zipursky, and has been embraced by others as well, either within tort law or in other parts of private law, such as contract theory (see, for example, the work of Nate Oman and Andrew Gold). Continue reading "Does Tort Law Empower?"

The Relevance of Professionalism in a Post-Legal Services Act World

Nick Robinson, When Lawyers Don’t Get All the Profits: Non-Lawyer Ownership of Legal Services, Access, and Professionalism (Harv. Law Sch. Prog. Legal Prof., Research Paper No. 2014-20)available at SSRN.

To what extent lawyers should control their own profession, determine its rules, and be the arbiters of who should deliver legal services is a question that is increasingly subject to intense scrutiny. More jurisdictions are considering whether to follow the leads of Australia and England and Wales in liberalizing their legal professions. Canada, for example, is one of the most recent.

The American legal profession expresses significant concern about non-lawyer ownership of law firms. Both the American Bar Association and the New York State Bar Association have dealt with the issue and will probably continue so to do. Continue reading "The Relevance of Professionalism in a Post-Legal Services Act World"

The IRS as Tax Law Nonenforcer

Lawrence Zelenak, Custom and the Rule of Law in the Administration of the Income Tax62 Duke L.J. 829 (2012).

In a recent essay, Custom and the Rule of Law in the Administration of the Income Tax, Larry Zelenak examines what he calls “customary deviations,” or “established practice[s] of the tax administrators . . . that deviat[e] from the clear dictates of the Internal Revenue Code.”  Even though the IRS makes decisions every day about when not to enforce the tax law, tax scholarship does not typically examine this phenomenon systematically. By focusing on an aspect of IRS nonenforcement, Zelenak shines a much needed light on the topic. The essay, and the topic generally, should garner the attention of tax scholars, as well as scholars of enforcement discretion more generally.

Like other administrative agencies as well as prosecutors, the IRS has to make decisions all the time about when not to enforce the tax law. These decisions raise important questions about the legitimacy of different types of decisions not to enforce the tax law. For instance: Is it more or less legitimate for the IRS to decide not to enforce the law through a clear, customary deviation, or through a more opaque policy?  If the IRS is somehow curtailed in its ability to use customary deviations, what alternatives might it use and would these be better or worse?  By raising questions about customary deviations, Zelenak’s essay provides a jumping off point for a broader examination of tax law nonenforcement. Continue reading "The IRS as Tax Law Nonenforcer"

Breaking the Deadlock in Bipartisan Election Administration

Jennifer Nou, Sub-Regulating Elections, Sup Ct. Rev. (forthcoming 2014), available at SSRN.

What should courts do when bipartisan agencies deadlock on an interpretation of a statute? That conundrum recently arose when the Election Administration Commission (EAC) addressed the meaning of the National Voter Registration Act (NVRA). Specifically, the EAC had to decide whether an Arizona requirement that voter registrants provide proof of their citizenship violated the NVRA, as a refusal to “accept and use” the federal mail-in registration form. The two Democrats on the four-person Commission found that the proof-of-citizenship requirement constituted a refusal to use the federal form while the two Republicans found that it did not. When the federal Court of Appeals reviewed the agency action, the judges seemed to have three options: Defer to the interpretation of the Democratic commissioners; defer to the interpretation of the Republican commissioners; or defer to neither and independently construe the statute. In this context of deadlock, there was no clear justification for deferring to either interpretation. Choosing to defer to one partisan interpretation over the other might subject the court to a Bush v. Gore-like charge of bias. But the decision to independently construe the statute would have had costs as well. It would have denied the court expert guidance in its determination of the meaning of the statute. None of the three options were particularly appealing.

In her innovative and illuminating article, Sub-Regulating Elections, Professor Jennifer Nou engages this problem of deadlock in election administration, and suggests a broad, creative solution. The two principal election agencies, the EAC and the Federal Election Commission (FEC), have similar designs in that they both have even numbered commissioners (four for the EAC and six for the FEC) with the two major political parties equally represented. In the current context of political polarization where decisions about the meaning of election statutes often have high stakes, the problem of deadlock has become endemic to election administration. One response would be to change the design of these commissions by making them odd-numbered or eliminating the requirement of partisan balance. But as Nou correctly notes, these design changes are unlikely anytime in the near future. Continue reading "Breaking the Deadlock in Bipartisan Election Administration"

The Past and Future of Copyright Politics

In The Fight Over Digital Rights, Bill Herman, a professor in the Department of Film and Media Studies at Hunter College, explores the changing landscape of political debate over digital rights management between 1980 and 2012. This is a book about copyright, but it is also a book about political science and legislation.

You don’t need to know anything about copyright to read this book and learn new things about how the process by which legislation is formed and amended dramatically affects substantive and procedural rights. Herman’s book is about the rights and opportunities that copyright laws provide. And it traces the shape of those rights and opportunities as the legislative process has been affected by the rise of Internet activism since 1980. Continue reading "The Past and Future of Copyright Politics"

The First World War: International Law Mattered More Than You Think

All schoolchildren—even American ones—know that the First World War began with the assassination of Archduke Franz Ferdinand in Sarajevo in June 2014. Not so, according to Isabel V. Hull, a distinguished historian of modern Germany. “The First World War,” she explains, really “began with an international crime: Germany’s violation of Belgian neutrality.” (P. 16.) In her masterful new book, A Scrap of Paper: Breaking and Making International Law during the Great War, Hull retells the history of the First World War as a series of breakings and makings—or remakings—of international law. This is a breathtaking study that may well be the best book ever written about international law in times of war.

The “scrap of paper” in Hull’s title refers to Britain’s 1839 treaty promise to defend Belgian neutrality, dismissed in a conversation on August 4, 1914, between German Chancellor Theobald von Bethmann Hollweg and British ambassador Edward Goschen. “[J]ust for a scrap of paper,” Goschen recalled Bethmann saying, “Great Britain was going to make war on a kindred nation who desired nothing better than to be friends with her.” (P. 42.) That scrap of paper—and the system of international law it reflected—mattered to actors at the time and should concern historians today. It was not simply that Germany or the Allies used international law as a post hoc justification for military actions (although, of course, they did that). Rather, Hull says, from beginning to end, “international law was central to how and why the Great War was fought.” (P. x.) Continue reading "The First World War: International Law Mattered More Than You Think"

Federal Causes of Action and Everything that Follows

John F. Preis, How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction, 67 Fla. L. Rev. __ (forthcoming 2015, available at SSRN).

“Cause of action” is a ubiquitous phrase in American law. Plaintiffs plead causes of action every day. Justice Scalia admonishes the courts never to infer them from statutory or constitutional rights. Justice Holmes tells us that federal question jurisdiction depends upon them. Justice Brennan scolds us never to conflate them with choice of remedy. But what, precisely, does cause of action mean? And equally important, how does cause of action interact with the concepts of rights, jurisdiction, and remedies? Professor John Preis takes up these questions in his latest article.

If you are a consumer of federal courts or procedure scholarship, Preis’ piece is a must read. To be sure, these concepts—cause of action, right, jurisdiction, and remedy—have been the topic of much past scholarship. These past pieces, however, tend to focus on cause of action in just one context, such as how cause of action relates to jurisdiction. Preis puts this myopic focus aside and aims to understand how the federal courts use cause of action across the board, providing both a detailed historical account of the concept and an analytically crisp contemporary treatment. But even if you are not a proceduralist, you need to read Preis’ article for its innovative approach to scholarly writing. While Preis begins his piece in the standard manner (“In part I, I argue X and in part II, I contend Y.”), he ends the piece not by simply imploring the Court to adopt his views. Instead, Preis concludes with mock Supreme Court slip opinions—he even switches to New Century Schoolbook font—that incorporate his positions. Seldom is a piece of scholarship both substantively important and rhetorically novel. Continue reading "Federal Causes of Action and Everything that Follows"

Dworkin’s Interpretive Concepts v. Metalinguistic Negotiations

David Plunkett and Timothy Sundell, Dworkin’s Interpretivism and The Pragmatics of Legal Disputes, 19 Legal Theory 242 (2013).

Ronald Dworkin famously claimed, in Law’s Empire, that law is an “interpretive concept.” Dworkin’s argument for this claim appealed to a certain type of legal disagreement, what he called “theoretical disagreement.” Theoretical disagreements, he maintained, are genuine disagreements in which parties share the same concept but differ in their application of the concept because they interpret shared practices differently.

David Plunkett and Timothy Sundell provide a close examination and illuminating critique of Dworkin’s argument for the claim that law is an interpretive concept in Dworkin’s Interpretivism and the Pragmatics of Legal Disputes. Their focus, however, is on Dworkin’s broader discussion of interpretive concepts in Justice for Hedgehogs (JFH) and his disagreement-based argument for intepretivism. Continue reading "Dworkin’s Interpretive Concepts v. Metalinguistic Negotiations"

Beginning with the End (of End-of-Life Law) in Mind

Lois L. Shepherd, The End of End-of Life Law, 92 N.C.L. Rev. 1693 (2014).

No one is happy these days with how we die in America. In just the past few months, we’ve received reminders of that sad reality. In September 2014, the Institute of Medicine came out with its report Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life, and in October, Dr. Atul Gawande published Being Mortal: Medicine & What Matters in the End to much acclaim. Each of these works describes our society’s—and in particular the medical care system’s—failure to provide people with meaningful choices and support regarding the care they receive at the end of their lives.

While certainly not the only culprit in this woeful state of affairs, the law undeniably plays a significant role in shaping practices surrounding end-of-life choices. The latest article by Lois Shepherd, The End of End-of-Life Law, seeks to reorient how we think about the law’s approach to medical decisions made near the end of life. Shepherd has thought and written about dying and the law for years, and in this latest article she argues that the law should approach questions about end-of-life care in the same way it approaches other important medical choices, without “special laws, special burdens of proof, or unique requirements for documentation.” As she points out, decisions made at the end of life are not the only medical decisions that are important and permanent, with potentially irrevocable consequences. The touchstone for all these decisions, according to Shepherd, should be respect and care for patients and their families, and our legal framework should help rather than hinder that focus. Continue reading "Beginning with the End (of End-of-Life Law) in Mind"

Compassionate Care for the Living and the Dying

Lois L. Shepherd, The End of End-of Life Law, 92 N.C.L. Rev. 1693 (2014).

As an elder law attorney, I spent my career helping my clients prepare for incapacity and death. A part of that preparation entailed assisting them with the execution of living wills and/or other health care directives. My goal was to ensure that their wishes with regards to end-of-life care were known and respected. Because of my experiences comforting and counseling sick and dying clients I have spent my academic career researching and writing about the ethical and legal issues surrounding end-of-life decision-making.

Two phenomena make a discussion of this subject so important. First, due to the aging baby boomer population, the number of patients who face these types of decisions will continue to increase. Second, as a consequence of the existence of medical technology that enables physicians to artificially sustain life longer, more people will be forced to make end-of-life decisions. Legislatures and courts have taken steps to establish processes that make it easier for patients to provide information to their health care providers about their choices with regards to end-of-life care. Nonetheless, Professor Shepherd claims that laws exclusively designed to help patients express their end-of-life preferences may not be needed. According to Professor Shepherd, the better approach would be for health care providers to treat end-of-life choices similar to other types of medical decisions. Continue reading "Compassionate Care for the Living and the Dying"

The Oppression of Analogy

Russell K. Robinson, Marriage Equality Post-Racialism, 61 UCLA L. Rev. 1010 (2014).

In 2008, America elected its first black president. In the same election, a slim majority of Californians voted to enact Proposition 8, a ballot initiative that amended the California constitution to prohibit legal recognition of same-sex marriages. Almost immediately, the election of the nation’s first black president and the enactment of Proposition 8 were linked in the media coverage of these two events and in the popular imagination. Black voters, it was argued, turned out in droves to support Barack Obama; and these same voters cast votes to deny gay men and lesbians the right to marry. According to the conventional wisdom, a group that historically struggled against prejudice and oppression had furthered the oppression of another minority group.

In his recent article, Marriage Equality Post-Racialism, Russell Robinson takes on this stock narrative of the 2008 election, and in so doing, launches a broader discussion of the racial discourse and politics of the marriage equality movement. As other scholars have done, Robinson relies on empirical evidence to dispute the claim that black voters were solely responsible for Proposition 8’s enactment. Critically, however, Robinson goes beyond merely setting the empirical record straight to offer astute observations about the intersection of race and sexuality, and the role of race in the effort to secure marriage equality for LGBT persons. Continue reading "The Oppression of Analogy"

The Careless Ideal Worker

Olivia Smith, Litigating Discrimination on Grounds of Family Status, 22 Fem. Legal Stud 175 (2014).

It will not surprise readers alive to anti-discrimination law’s limited capacity to transform systems that Ireland’s reform to protect workers in certain care relationships from discrimination based on their family status has reinforced gendered assumptions about care and workforce participation. However much its findings line up with our pessimistic hunches, Olivia Smith’s study is worth reading because it exemplifies an admirable kind of feminist scholarship: quantitatively and qualitatively empirical; theoretically grounded; alert to the intersection of gender with other grounds of disadvantage, such as class; and self-conscious of its limits.

Smith offers a “contextualized assessment” of a dozen years’ tribunal litigation under the “family status” discrimination ground. Prior to this ground’s adoption in the Employment Equality Acts 1998-2011, women had challenged discrimination associated with their care obligations under the ground of gender. As Smith notes, that tack had confirmed the gendered view of care as women’s work. Yet while the gender-neutral ground of “family status” might signal that care obligations bear on men as well as on women, the litigation record shows it to have reinforced the gendered dynamics of Irish work and family life. Continue reading "The Careless Ideal Worker"

Digital Behavioral Advertising – Why Worry?

Ryan Calo, Digital Market Manipulation, 82 Geo. Wash. L. Rev. 995 (2014).

Alongside the explosive growth of the internet, digital marketing is also growing aggressively. According to some projections, it might even surpass TV-based advertising in the coming decades. One of its most prominent and controversial features is commonly referred to as “behavioral advertising”; the tailoring of advertisements to specific users at a specific time, on the basis of previously collected personal information about those users’ online activities.

Behavioral advertising is creating a substantial buzz in the press. It is therefore no surprise that this issue is also generating a vibrant discussion in the legal and policy realm. Addressing it properly is a serious intellectual challenge. Behavioral advertising generates an uneasy feeling (some might find it “creepy“). Yet it is not necessarily simple to figure out why. Consumers have dealt with marketers—some of them quite aggressive—since the dawn of time. Existing mechanisms, which incorporate a delicate mix of market forces, reputation concerns and in extreme cases regulatory action, have produced an acceptable status quo. Recently, this status quo has apparently been breached. The challenge academics and policy makers face is explaining why and how. In his recent Article, Ryan Calo tackles this challenge directly, and sets forth important answers. His insights will enhance the policy debates about the regulation of behavioral marketing, and push them in the right direction. Continue reading "Digital Behavioral Advertising – Why Worry?"

Dignity, too

The police killing of Michael Brown this summer in Ferguson, Missouri, sparked a nationwide wave of outrage at heavy-handed police behavior generally and toward young men of color in particular. But scores of young black men are killed every year by the police, many in even more suspicious circumstances; what made Ferguson different? One significant element was the fact that police left Michael Brown’s body exposed to public view and the hot sun for some four hours. Perhaps even more than the shooting of Michael Brown (which might yet be given an explanation), the exposure of his body for such a prolonged period, conveyed to millions through social media, constituted a striking violation of social norms of respect which appeared to have no possible explanation. Leaving his body to deteriorate in the view of his family and neighbors seemed to reflect the fact that police did not view Michael Brown as a human being, or his neighbors as citizens worthy of respect. The police shooting may in fact have been justified, but their treatment of Michael Brown’s body defiled human dignity

The growing sense that the carceral state (both police and prisons) has become a threat to the human dignity of Americans is an important new dimension of political and legal opposition to the supersized role that it now plays in our lives. Objections to NSA digital snooping, outrage at mistreatment of mentally ill prisoners, and protests against the routinized degradation of “stop and frisk” policing are growing. And these arguments are working not just in the street but in courts, where in Brown v. Plata in May 2011, the Supreme Court reminded American states that prisoners “retain the essence of human dignity inherent in all person[s].” So far, however, the force of dignity has had little influence on challenges to police using their arrest and related powers under the Fourth Amendment. Continue reading "Dignity, too"

Surmounting the Control Paradigm

Colin Mayer’s Firm Commitment is not exactly a book about corporate law, but it’s still best corporate law book I have encountered in a long while. Here a leading academic in business and finance challenges the status quo, bringing financial economics, agency theory, and corporate law to bear to persuade us that something has gone very wrong with corporate organizations in English-speaking economies.

Unlike many critics of corporate institutions, Mayer approves of large corporate entities. He points out that they allow us to partition assets off from individuals and create stable productive environments conducive to group participation. They are ubiquitous for very good reasons and do great things. But there’s also a dark side. In describing it, Mayer pulls together a number of things that we all know are out there and builds them into a binary theory. On one side of the description there’s a long list of phenomena, bundled up and characterized as the “control” paradigm. The market for corporate control sits at the top of the list, followed by environmental degradation, reductions in workforces, the shareholder value maximization norm, the trend to shareholder empowerment, short termism, leveraged restructuring, asset substitution, and leveraged speculation. All these work together with and within corporate entities to lead to disastrous results for society and the economy, manifested in the form of both externalities and opportunity costs. As society tries to cope with this onslaught of injury, there result layers and layers of choking regulation. Continue reading "Surmounting the Control Paradigm"

Judicial Fact-Making

Allison Orr Larsen, Factual Precedents, 162 U. Pa. L. Rev. 59 (2013)

Two judicial and scholarly heavyweights squared off recently in a case challenging the constitutionality of Wisconsin’s voter ID law. Writing for the Seventh Circuit panel, Judge Easterbrook reasoned that “whether a photo ID requirement promotes public confidence in the electoral system is a ‘legislative fact’—a proposition about the state of the world, as opposed to a proposition about these litigants or about a single state.” The Seventh Circuit was bound to accept that a photo ID requirement did promote public confidence in elections because “[o]n matters of legislative fact, courts accept the findings of legislatures and judges of lower courts must accept findings by the Supreme Court.” Dissenting from the denial of rehearing en banc, Judge Posner responded that Easterbrook’s approach “conjures up a fact-free cocoon.” Posner asked: “If the Supreme Court once thought that requiring photo identification increases public confidence in elections, and experience and academic study since shows that the Court was mistaken, do we do a favor to the Court … by making the mistake a premise of our decision?”

This disagreement between Easterbrook and Posner—in the language of Allison Orr Larsen’s excellent article—is about Factual Precedents: whether the Supreme Court’s statements about legislative facts should receive “separate precedential force, distinct from the precedential force of whatever legal conclusions they contributed to originally.” (P. 63.) As Larsen explains, such “facts” are everywhere in judicial opinions—facts like “partial birth abortions are never medically necessary, fleeing from the police in a car leads to fatalities, and violent video games affect the neurological development of a child’s brain.” (P. 71.) To support such claims, Supreme Court Justices regularly invoke authorities that have never been made part of the evidentiary record or subjected to adversarial challenge by the parties to the case. Yet—as the Easterbrook opinion suggests—lower-court judges often treat factual propositions as precedent that they are bound to accept as a matter of stare decisis. Larsen convincingly argues that this is a mistake. Rather, “generalized factual claims from the Supreme Court should not receive any precedential value separate and apart from the legal rules they helped to create.” (P. 99.) Continue reading "Judicial Fact-Making"

Safe at Any Speed: Robert Ahdieh’s Take on Cost-Benefit Analysis in Financial Markets

When I saw the title of Robert Ahdieh’s recent article, Reanalyzing Cost-Benefit Analysis: Toward a Framework of Function(s) and Form(s), I thought, “oh no, not another article about CBA.” Knowing Professor Adhieh’s work, I took a flyer and read it anyway, and boy was I happy with my decision. This is a great article which should be of interest to anyone involved in administrative law, securities regulation and policy analysis more generally. Cost-benefit analysis has become an important regulatory tool, and Professor Adhieh’s article makes a valuable contribution to the literature on the special analysis required under Section 106 of the National Securities Market Improvement Act of 1996, 15 U.S.C. § 77b (2012) and to the literature on cost-benefit analysis more generally.

Ahdieh’s jumping-off point, section 106 of the National Securities Market Improvement Act of 1996, requires the Securities and Exchange Commission (SEC) to consider, in all of its actions, including rulemaking, “in addition to the protection of investors, whether [an] action will promote efficiency, competition, and capital formation.” As Ahdieh observes, on its face, this provision has little bite—it requires only consideration of the effect on markets and it does not impose any substantive standard such as the efficiency requirement imposed by Congress in other regulatory contexts. Despite the moderate nature of Congress’s language, as Ahdieh reports, when the SEC promulgated a regulation expanding shareholder access to corporate proxies to nominate corporate directors, “[c]onsidering SEC rulemaking unsafe at any speed, . . . the Business Roundtable and the Chamber of Commerce challenged the new rule . . . invoking the language of Section 106 . . . [arguing] that the SEC’s assessment of the costs and benefits of mandatory proxy access had not met the requirements of Section 106.” Continue reading "Safe at Any Speed: Robert Ahdieh’s Take on Cost-Benefit Analysis in Financial Markets"

Putting Union Security Clause First Amendment Law in a Broader Context: Charlotte Garden’s Meta Rights

Charlotte Garden, Meta Rights, 83 Fordham L. Rev. 855 (2014).

Meta Rights is a thought-provoking article that addresses concerns about labor law rules governing agency fee payments in public-sector employment by comparing these rules to doctrines in analogous situations in other areas of law. Specifically, after the Supreme Court decided Knox v. SEIU Local 100 in 2012, 132 S.Ct. 2277 (2012), many felt that the Supreme Court was primed to change the default rule for agency payers from “opt-out” (an employee covered by a union security agreement would have to affirmatively state a preference not to pay dues for activities deemed “not related to collective bargaining”) to an “opt-in” system (unions could not require such dues absent specific, individual consent). Many in the field also noted that Harris v. Quinn, 134 S.Ct. 2618 (2014), looming but not yet decided when this article was written, could result in the Supreme Court mandating the “opt-in” system (I thought that was the most likely result in Harris). This is a very important issue in labor law and policy and for the labor movement as a whole. Although these cases explicitly covered only public-sector unions, such unions make up about half the total membership of all unions in the U.S.

Professor Garden could have written an article solely about whether “opt-in” rules were good or bad labor policy, or the extent to which constitutionally mandating such a system would be consistent with previous precedent (e.g., Abood v. City of Detroit, 431 U.S. 209 (1977)). Instead, she wrote a more interesting article by casting her net much more widely, describing when, in other contexts, courts have required Party A to give notice to Party B that Party B has certain constitutional rights. This takes her well beyond labor and employment law, and indeed beyond civil law (e.g., by discussing Miranda rights). Showing that such “meta rights” are relatively rare (e.g., public schools need not give notice to students that they have a First Amendment right to abstain from reciting the Pledge of Allegiance), Professor Garden provides a strong, principled, and broad-based critique of “opt in” rules. Continue reading "Putting Union Security Clause First Amendment Law in a Broader Context: Charlotte Garden’s Meta Rights"

Transmitting Retirement Accounts: Getting It Right

Stewart E. Sterk & Melanie B. Leslie, Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession, 89 N.Y.U.L. Rev. 165 (2014).

Articles routinely appear that serve up a simple, everyday scenario that has potential to morph into a terribly complex legal situation and in the process, twist legal doctrines pretzel-like to reach the preferred result. We read them, digest them for the nugget to divulge in class, and file them away to cite in a later article. Rare is the article that serves up a simple everyday scenario that could have a disastrous effect that causes us to actually do something to avert the potential disaster. Stewart E. Sterk and Melanie B. Leslie have done just that in their masterful, co-authored piece, Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession.

Starting with the fairy tale beginning of “once upon a time,” the authors bring us back to the days when wills controlled the disposition of property at death. Judges were in control of the probate process, much, if not most, property was probate, and rules had developed to ameliorate the routine mistakes and missteps that occur between the signing of the will and the date of death. Marriage, birth of a child, divorce, and the death of a beneficiary no longer have to upset the decedent’s presumed intent for his heirs, as we had developed rules for the probate process to reach the preferred result. As the non-probate revolution has settled into mainstream life, the issue has become how many of those presumed-intent rules apply. So far pretty standard fare, but consider $9 trillion in retirement accounts (a most significant non-probate asset), a changing American family, and the impending demise of the baby boomer generation, and the consequences have the potential to be dramatic and, in the view of the authors, intolerable. Continue reading "Transmitting Retirement Accounts: Getting It Right"

When is Sexual Abuse Within the Scope of Employment?

Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 Val. U. L. Rev. 133 (2013), available at SSRN.

Martha Chamallas’s Monsanto Lecture, Vicarious Liability in Torts: The Sex Exception, is timely and important, inviting renewed scholarly attention to the oft-neglected topic of vicarious liability.

Since the 1990s, courts have faced a steady stream of suits brought against schools, hospitals, religious institutions, and other entities for sexual abuse committed by employees. In addressing these suits, Chamallas argues, courts have adopted an unjustifiably narrow approach to vicarious liability.

Modern doctrine maintains that an employee’s on-the-job wrong will be imputed to her employer when the wrong is foreseeable, or involves the realization of risks characteristic of the employer’s enterprise. Under these tests, vicarious liability has at times extended to employees’ intentional acts of physical violence, as well as to negligence perpetrated by drunken, off-duty employees.

It is thus surprising, Chamallas argues, to find prominent cases in which courts decline to impose vicarious liability for sexual abuse. For example, the California Supreme Court refused to hold a hospital liable for its medical technician’s molestation of a young woman during the performance of an ultrasound, and also declined to hold a school district liable for a teacher’s abuse of a student during a school-sanctioned extra-curricular activity. According to Chamallas, modern legal tests for “scope of employment” are capacious enough to permit liability in cases such as these. Moreover, standard instrumental rationales for respondeat superior (“let the master answer”)—that it incentivizes appropriate precaution-taking by employers, better ensures compensation of victims, and fairly comports with the risks characteristic of the employer’s enterprise—arguably also favor liability. So why would courts decline to hold employers liable under the circumstances? Continue reading "When is Sexual Abuse Within the Scope of Employment?"

Keeping Us Honest about the Timing Flaws in the Income Tax

Daniel I. Halperin & Alvin C. Warren Jr., Understanding Income Tax Deferral, Tax L. Rev. (forthcoming), available at SSRN.

We all do it once in a while. In the haste of trying to make a point in class, or in a hurried comment to the press, we overstate the effect of the failure of a tax law rule to take into account the time value of money. “The effect of deferral of income,” we may boldly assert, “is the exemption of the earnings on the amount deferred.” A recent short essay by Dan Halperin and Al Warren entitled Understanding Income Tax Deferral should help us all stay a bit more accurate when we make these claims. As Halperin and Warren point out, although in some limited circumstances the benefit of deferral can be the exemption of the earnings on the amount deferred, often the effect of an apparent deferral is more limited and more nuanced. In some cases, timing flaws produce only reduced taxation, not full exemption, while in other cases rules that seem to involve timing flaws merely shift income to other taxpayers or to other taxing jurisdictions. Halperin and Warren remind us that it can be very important to be able to distinguish between these results. This paper will displace Halperin’s 1986 classic in my must-read recommendations for beginning teachers of tax.

There is little that is actually new in the essay. However, it is a much-needed and succinct guide to the principles involved when considering the effect of timing in the rules defining the income tax base. Thirty years ago, when interest rates were high, correcting the timing mistakes embedded in the income tax law was a high policy priority. For example, the original issue discount rules were tightened and applied to many more transactions (in sections 1271, 1274 and 7872) and the possibility of accruing costs before payment were substantially curtailed (through various changes in the taxation of retirement savings and in sections 461(h)). In this era, the principles Halperin and Warren newly examine here became a mainstay of tax policy analysis. No one participating in policy discussions could afford not to understand them. Continue reading "Keeping Us Honest about the Timing Flaws in the Income Tax"

There’s No Time Like the Present for Some Optimism about the Future

“When did the future switch from being a promise to a threat?”
    –Chuck Palahniuk, Invisible Monsters: A Novel

The legal profession is often criticized as disinterested, if not fearful, of innovation in the delivery of legal services. As Benjamin Barton observes in the introductory chapter of his forthcoming book, Glass Half Full: The Decline and Rebirth of the Legal Profession: “Law may have changed less than any other area of the economy between 1850 and today. The same basic product is being sold and the same basic service is being performed.” But, as Barton quickly notes, “[n]o one dodges the reaper forever.” Through the next thirteen chapters, Barton proceeds to provide an insightful parsing of the past, present and potential future course of the American legal profession.

In homage to Larry Ribstein’s influential article, “The Death of Big Law”, Barton discusses current challenges faced by American lawyers through four different lens: “death from above”, “death from below”, “death from the state”, and “death from the side”. Although space constraints preclude a full exploration of the detailed analysis presented in the book, a brief summary of each of these four “deaths” follows: Continue reading "There’s No Time Like the Present for Some Optimism about the Future"

Citizenship for the Worthy Children

Immigrant children are the subjects of varying narratives. To some, immigrant children fleeing Central America are invaders, while others view these children as innocent bystanders who are reaching out to the United States for protection from unimaginable violence. The narrative matters and it influences public perception. In Defining American: The DREAM Act, Immigration Reform and Citizenship, Elizabeth Keyes takes a close look at the narratives pursued in support of the DREAM Act and identifies danger posed by a narrative that promotes legal status and eventual citizenship for worthy and blameless immigrants. Keyes takes a narrative that seems unobjectionable and uncovers a major negative consequence.  Creating the worthy category necessarily creates a category of individuals undeserving under the law.

The Development, Relief, and Education for Minors Act, or DREAM Act, has been on the congressional agenda for almost 15 years, but has yet to make its way to the President for signature. The DREAM Act would put certain individuals who currently lack legal immigration status on a path to legal status, with the potential of eventual US citizenship. The criteria generally include entrance to the United States before the age of 16, achievement of certain educational milestones or military service, continuous residence in the United States, and possession of “good moral character.” In the face of legislative defeat of the DREAM Act, the Obama administration used similar criteria to implement the Deferred Action for Childhood Arrivals (DACA) program, which does not provide legal immigration status but does provide work authorization and a promise that the US government will not pursue deportation for two years. Continue reading "Citizenship for the Worthy Children"

How Lower-Court Precedent Affects the Supreme Court

Aaron-Andrew Bruhl, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014)

Aaron-Andrew Bruhl has done it again. Beginning with a simple question—what can one say about the Supreme Court’s on-again/off-again relationship with lower court precedent—Bruhl finds a surprisingly rich collection of answers that illuminate much about the institutional federal judiciary. While Bruhl plays with numbers and demonstrates a sophisticated appreciation for the possibilities and limitations of empirical work on the federal courts, he treats quantitative analysis as one source of insight into a complex world rather than as an end in itself.

We’re familiar with the notion that the Court attends to lower court precedent. For starters, the Court often intones that its decision to grant review in a particular case was driven by a division in the lower court. When a split fails to emerge, it may prevent review for a time (as the marriage equality cases reveal). Even with a circuit split, the Court may refrain from taking a case at the first opportunity, preferring to allow the issue to percolate for a time as more circuit court judges take a crack at the problem. Finally, we often observe that particular members of the Court rely on lower court precedent in the course of their own treatment of an issue—Justice Breyer does this with some frequency, Bruhl reports, but Justice Scalia consciously eschews such reliance. Continue reading "How Lower-Court Precedent Affects the Supreme Court"

Bringing History into the Law School Classroom

Teaching is a fairly private experience, which may be an odd thing to say about something we do in front of a large group of people. Beyond talking with colleagues (both in person and in the very useful space Facebook provides to gather teaching advice), there are too few opportunities to see or hear what happens in other people’s classrooms, which is why I was looking forward to reading the essays in Teaching Legal History: Comparative Perspectives. The volume, an expansion of a special volume of the American Journal for Legal History, includes 63 short essays by law professors about how they teach legal history (and one longer essay on the history of teaching legal history in law schools). Some of the contributors have been trained specifically as legal historians, while others came to legal history teaching later in their careers. (Only thirteen of the 65 contributors are women, which raises questions either about the selection of contributors or about law school hiring more generally.) I should state here that I know several of the contributors to this volume—not surprising, as American legal history is my own research field.

There is significant breadth among the 63 essays (although not a lot of depth; by design, most are approximately four pages long). Taken together, they indicate the diversity of legal history courses and methods. Courses discussed range from the standard survey of American legal history to specialized courses on law in the Civil War, Latin American legal history, the history of corporate law, and the legal history of Hawaii. Some authors strive for coverage (some courses cover American legal history since Reconstruction, while others begin with the American Revolution, the Magna Carta, or ancient Mesopotamia); many others focus their courses on students’ own research papers. (I was impressed by how many contributors have their students tackle independent research in local and online archives.) Most contributors assign at least some primary sources (and many use primary sources almost exclusively); it is clear that the ease of gathering primary sources (through online databases and archives) has allowed many to complement or move beyond the few casebooks/sourcebooks that dominate the market. Several other contributors focus instead on secondary materials, and it was encouraging to see many forsake textbooks to expose students to the extremely vibrant recent scholarship in legal history. Continue reading "Bringing History into the Law School Classroom"

Do Animals Need Citizenship?

Will Kymlicka and Sue Donaldson, Animals and the Frontiers of Citizenship, 34 Oxford J. Legal. Stud. 201 (2014).

The planet’s population of wild nonhuman animals has declined by one-third over the past fifty years. Over that same period the human animal population has doubled. (Hereon, I will simply refer to “animals” and “humans.”) The two numbers and the trends they represent are connected. Human activity accounts for much of the decline in wild populations. Non-wild animal numbers have grown, over the same period, but this is due largely to the trebling of meat consumption by humans. This is expected to double again by the year 2050. Something like 56 billion animals are now slaughtered annually for human consumption. Ten of them, approximately, for each one of us; and the ratio is growing. The amount of animal suffering due to purposeful or knowing human conduct is staggering.

There are signs that humans are becoming more thoughtful about, and more sensitized to, the suffering and exploitation of animals. Animal welfare laws have become more common and have begun to address the conditions of animals in factory farms. Nevertheless, the larger picture is depressing: an “Eternal Treblinka” (Zoopolis, P. 2) whose moral and political superstructure remains largely unquestioned. Despite over a century and a half of campaigning, human advocates for better treatment of animals have rather little to show for their efforts. Continue reading "Do Animals Need Citizenship?"

Why FISH:FISHES :: INFORMATION:INFORMATIONS

Tim Wu, Properties of Information and the Legal Implications of Same (Columbia Law and Economics Working Paper No. 482, 2014), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2446577

Tim Wu’s new essay, Properties of Information and the Legal Implications of Same, offers both a survey of recent legal and economic scholarship on information and a provocative reconceptualization of it. Wu posits that information is commonly described as an unusual resource because its very nature means that it possesses the twin properties of being non-excludable and non-rival. Taking these properties as givens, information can be readily pegged as a public good, and a strong case can be made out for government intervention to foster the production and/or dissemination of the information (whether in the form of IP rights, subsidies, or something else). However, Professor Wu’s reading of the literature, combined with his sprinkling of original comments on the intrinsic nature of information, suggests that the story is not quite this simple. (Although the review sweeps broadly, discussing securities regulation, contract theory, consumer protection, communications, and free speech, the bulk of it addresses intellectual property.) Professor Wu argues that information is not by its very nature non-excludable or non-rival. Rather, the subject matter of the information, the context in which the information exists, and the structure of the industry that employs the information all matter. They all affect the extent to which information is a public good. As a consequence, Professor Wu counsels against a single policy prescription for problems concerning the underproduction or under-dissemination of information and in favor of context-specific, dynamic laws governing information.

Professor Wu argues that non-excludability per se is not what makes information prone to free-riding problems (and thus the problem of underproduction without government intervention). Positing that information “consists of patterns, which must subsist in some form, whether ink on paper, stored magnetic charges, or whatever else” and that information is only valuable if a human mind perceives it, he takes it to be self-evident that people can in fact be readily excluded from information. “If you don’t have a ticket, you won’t see the movie, and we are all excluded from the text of a book locked in a vault for which the key is lost, or from the particular information contained in an engraving written in a lost language, like hieroglyphs before the discovery of the Rosetta stone.” Instead, Professor Wu suggests that information raises a free-riding concern because, among other things, it can often be copied at a relatively low cost. Presuming that copying costs vary, this shift in the conceptual framework for understanding what enables free-riding is significant because the argument in favor of government intervention shifts from being inherent in the essential nature of information to contingent on the particularities of the context in which information exists. Continue reading "Why FISH:FISHES :: INFORMATION:INFORMATIONS"

Honouring the Capacity for Choice

Denise Réaume, Dignity, Choice, and Circumstances, in Understanding Human Dignity 33 (Christopher McCrudden, ed., Oxford University Press, 2013).

Denise Réaume is Canada’s foremost legal theorist on the concept of dignity. She has committed much of her scholarly work to elucidating its contours and teasing out its complexities. One of my favourite of her earlier pieces is “Indignities: Making a Place for Dignity in Modern Legal Thought”. In that piece, Réaume deduces a distinct dignity interest warranting legal protection in the common law through careful review of the evolving case law addressing intentional infliction of nervous shock.

Jump forward more than ten years and we find Réaume on to the interaction of dignity, choice, and circumstances. The title of her chapter is a little misleading, perhaps, since Réaume’s focus is more on the capacity for choice than its availability. Continue reading "Honouring the Capacity for Choice"

Legal Scholarship We Like and Why It Matters -Program and Links to Papers, Part Two

Sat Nov 8

9:00-9:30
Breakfast

9:30 – 10:45 Counterpoint:
James Chen, Modeling Law Review Impact Factors as an Exponential Distribution
Patrick Woods, Stop Counting (Or At Least Count Better)

11- 11:45
Benjamin Keele, Improving Digital Publishing of Legal Scholarship
[via remote participation]

12-12:45
Mark Tushnet, The Federal Courts Junior Scholars Workshop (originally submitted as a contribution to Jotwell).

12:45-2:00
LUNCH

2:15- 3:00
Frank Pasquale, Symbiotic Law & Social Science: The Case for Political Economy in the Legal Academy, and Legal Scholarship in Political Economy
[via remote participation]

3:15 – 4:00
James Grimmelmann, Scholars, Teachers, and Servants

4:15-4:30
Envoi

 

Accepted papers from scholars unable to attend:

Angela Mae Kupenda, Personal Essay–On the Receiving End of Influence: Helping Craft the Scholarship of My Students and How Their Work Influences Me

Legal Scholarship We Like and Why It Matters -Program and Links to Papers, Part One

Friday Nov 7

1pm Welcome
Vice-Dean Patrick Gudridge, Welcome
A. Michael Froomkin, A Little About Jotwell

1:15 – 2:00
Steven L. Winter, When Things Went Terribly, Terribly Wrong Part II

2:15- 3:00
Patrick Gudridge, Past Present (Revised Version)

3:15 – 4:30 Counterpoint
Jeanne Schroeder and David Carlson, Improving Oneself and Ones Clients; Not the World
Neil Buchanan, Legal Scholarship Makes the World a Better Place

4:45 – 5:30 Keynote Address
Margaret Jane Radin, Then and Now: Developing Your Scholarship, Developing Its Audience

5:30- 6:30
Reception, Faculty Lounge

Super-Sizing Health Reform

William M. Sage, Putting Insurance Reform in the ACA’s Rear-View Mirror, 51 Hous. L. Rev. 1081 (2014).

For this Jot, I wanted to review recent or forthcoming scholarship on the bombshell D.C. Circuit Halbig v. Burwell decision, now awaiting en banc rehearing and buttressed by a similar decision from an Oklahoma District Court in Pruitt v. Burwell. But the only articles that I could find were Michael Cannon and Jonathan Adler’s piece that started the whole mess and a succinct rebuttal in State Tax Notes. My search, however, did turn up a terrific Commentary by Bill Sage, which I had somehow missed in my routine reading. Appropriate at the time that Sage wrote his Commentary, Sage gave Halbig a mere one-line, one-footnote reference in his insightful perspective on the aims and limits of recent U.S. health care reform efforts. Thankfully, it was Halbig that enabled me to discover Sage’s piece.

Necessarily, given the Affordable Care Act’s 2,400-page length and complexity, many of us have focused our writing on discrete aspects of the law. Sage instead offers a cogent flyover, bringing to bear his years of experience in this business, to explain what is and isn’t working in the ACA. Stepping back from the details, Sage identifies the ACA’s ambitious agenda not only to achieve near-universal health insurance coverage but also to reform the health care delivery system and improve population health. He commends this “triple aim,” emphasizing that insurance reform is, and must be, just the beginning of a successful health policy agenda. Continue reading "Super-Sizing Health Reform"

What Belongs in the Academic Legal Canon?

Should there be an academic legal canon? Are we condemned to “repetition and recycling of a handful of ideas” without one? Those are among the questions raised by Steven L. Winter in his paper When Things Went Terribly, Terribly Wrong Part II which leads off the Jotwell Conference tomorrow afternoon.

If that isn’t sufficiently provocative, Appendix One of Prof. Winter’s paper offers a first draft of what a legal scholarship canon would look like, noting that “Most of the articles and books on my list can be characterized as classics, though I assume that among any group of well-read law professors there will be disagreements with respect to both omissions and inclusions.”

What works would you add to his list?

Representing Child Migrants (in the Midst of Our Border Crisis)

Some of the summer’s biggest news headlines focused on the surge of children from Guatemala, El Salvador, and Honduras who, fleeing widespread violence and extreme poverty, have crossed the U.S.-Mexico border to seek refuge in the United States.1 The border crisis has sparked a highly politicized debate, with compromise solutions shifting steadily to the right. The most recent bipartisan proposal would, in many cases, require detention of minors (in violation of the 1997 Flores v. Reno settlement requiring the release of migrant children, when possible, to relatives or foster care) and result in rapid deportations without due process.

Within this contemporary context, Shani King’s Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors, provides a fresh perspective on the issue. King argues that three constellations of international and regional human rights standards—children’s rights, immigrants’ rights, and the right to civil counsel—should be interpreted together to provide the right to free legal counsel for unaccompanied minors in immigration proceedings. King offers an extremely helpful collection of international and regional standards on these rights, as well as comparative examples from countries that provide representation to unaccompanied minors facing immigration proceedings. Congress, he concludes, should likewise enact legislation guaranteeing legal representation to unaccompanied minors. King’s article is thought-provoking and practically useful, and it can serve as a source of persuasive international authority to support recent proposals and lawsuits calling for constitutional due process rights of unaccompanied minors. Continue reading "Representing Child Migrants (in the Midst of Our Border Crisis)"

Future Present?

Mr. Young means to test empirically the existence of “constitutional moments,” changes occurring outside formal processes of amendment that Bruce Ackerman has posited are important elements in the American constitutional progress. To this end, Young focuses Measure on the so-called Reconstruction “moment,” from the period preceding the 1866 congressional elections through 1868, the time range within which Ackerman discerns a structured process of profound commitment to a new racially open political, legal, and institutional order. (See Bruce Ackerman, We The People: Transformations 99-252 (1998).) Measure studies the front pages of some 600 newspapers, viewing 2,000 articles published between June 1, 1866 and December 31, 1866; 2,612 articles published between June 1, 1868 and December 31, 1868; 5,000 newspaper pages on which the word “constitution” appeared between January 1, 1866 and December 31, 1868; and 15,322 newspaper front pages published between June 1 and December 31 in 1866, 1868, 1870, 1872, and 1884. All told, Young takes into account 32,544,870 words. (See Table I, P. 2021.)

In 1866 and 1868, “results indicate empirical support for the hypothesis that Americans were paying attention to constitutional-level issues during these periods.” The newspaper coverage surveyed between 1866 and 1872 and then 1884 shows “support for both the notion that constitutional issues were of high salience during this period and that sustained attention to those issues spiked during certain key moments in 1866 and 1868.” “[E]vidence of both constitutional discourse and a gradual decline in the prevalence of that discourse over time” is “consistent the with predictions of Ackerman’s theory that sustained popular attention to constitutional politics peaks during transformative constitutional moments and then declines as normal politics once again take center stage.” (P. 2053.) “Had my results indicated either no evidence of constitutional discourse, or a constant level of such discourse across time, it would have called into question the entire theoretical superstructure of Ackerman’s work.” (PP. 2053-54.)

“[F]or all the millions of words and thousands of newspaper articles this Note analyzes,” Mr. Young concedes, “this is a rather modest conclusion.” “[T]here is nothing surprising about the fact that the media was paying attention to the passage of major constitutional amendments in the aftermath of a devastating civil war.” (P. 2053.) It’s not Young’s bottom line, however, that marks his effort as important. “[M]illions of words and thousands of newspaper articles”—no law student reads this much! How did he do that? Continue reading "Future Present?"

Discrimination by Database

Solon Barocas & Andrew D. Selbst, Big Data’s Disparate Impact, available at SSRN (2014).

I have previously written about an NYU School of Internet scholars, led by the philosopher Helen Nissenbaum, whose work is “philosophically careful, intellectually critical, rich in detail, and humanely empathetic.” There is also a Princeton School, which orbits around the computer scientist Ed Felten, and which is committed to technical rigor, clear exposition, social impact, and creative problem-solving. These traditions converge in Big Data’s Disparate Impact by Solon Barocas and Andrew Selbst. The article is an attempt to map Title VII employment discrimination doctrine on to data mining, and it is one of the most interesting discussions of algorithmic prediction I have read.

The pairing—anti-discrimination law and data mining—is ideal. They are both centrally concerned with how overall patterns emerge from individual acts; they shift back and forth between the micro and the macro, the stones and the mosaic. Moreover, they are both centrally concerned with making good decisions: each in its own way aspires to replace crude stereotypes with nuanced reason. It would seem then, that Big Data ought to be an ideal ally in Title VII’s anti-discrimination mission. But Barocas and Selbst give reasons to think that the opposite may be true: that data mining will introduce new forms of bias that Title VII is ill-equipped to remedy. Continue reading "Discrimination by Database"

Marked!

Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 Stan. L. Rev. (Forthcoming 2014), Available at SSRN.

Most people, both lay and expert, would not quibble with the claim that American criminal justice is primarily adjudicative in nature. Specifically, the criminal justice system is concerned with separating the factually innocent from the guilty (erring procedurally on the side of innocence) and meting out punishment to the guilty. Thus, prosecutors dismiss weak cases and pursue charges only when guilt can be established. The guilty either plead or are convicted after trial, and a conviction is the primary basis for adverse consequences, such as jail and probation. Most would also acknowledge that the adjudicative function sometimes goes off the rails, for example, when aggressive plea bargaining or poorly structured sentencing guidelines coerce innocent people to plead guilty or when excessive pretrial detention attaches to a minor charge. However, often people think of such occurrences as deviations from or perversions of a system that in principal differentiates between the innocent and guilty and punishes the guilty. It might come as a surprise then to find out that in New York City, a very large percentage of criminal cases are resolved completely irrespective of defendants’ guilt or innocence.

Conducting a multi-year ethnography of New York City misdemeanor court, Professor Issa Kohler-Hausmann observed, day after day, prosecutors dismiss cases with ample evidence of the defendant’s guilt and insist on guilty pleas in the face of questionable facts. Contrary to existing descriptions of misdemeanor courts as conviction mills that fail to differentiate between types of misdemeanants or assembly-lines that produce quick but schizophrenic dispositions, Kohler-Hausmann discovered that NYC misdemeanor courts engage in meticulous categorizations of defendants and apply dispositions (continuance and then dismissal (ACD), conviction for a violation, misdemeanor conviction) to the differentiated categories of defendants in predictable manners. However, the categories of defendants are not determined along a spectrum of factual guilt. Accordingly, it is not necessarily the case that the defendants against whom there is weak evidence receive ACDs and those against whom there is ample evidence are convicted of the highest charge. Instead, the NYC misdemeanor system sorts defendants and graduates outcomes on the basis of defendants’ prior contacts with the system. Kohler-Hausmann’s quantitative analysis demonstrates that prior misdemeanor convictions are highly predictive of future misdemeanor convictions, and the probability of being convicted on a pending misdemeanor charge significantly increases with every past misdemeanor conviction. By contrast, prior felony convictions do not correlate significantly with conviction on pending felony charges (although they most certainly affect sentencing once there is a conviction). In short, the more times an individual spends in the misdemeanor court system, the more likely it is that she will be convicted, regardless of the evidentiary strength of the case. In fact, through a series of stunning vignettes, Kohler-Hausmann illustrates just how adverse prosecutors, judges, and even some defense attorneys are to introducing questions of factual innocence into the misdemeanor disposition process. Continue reading "Marked!"

Salarization’s Impact on Governmental Legitimacy

As a member of the ABA Administrative Law and Regulatory Practice Section’s Scholarship Award Committee, I would like to recommend this year’s winning submission, Professor Nicholas Parrillo’s book, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940. Not only did the book win the ABA Administrative Law Section’s award for the best work of administrative law scholarship published in 2013, it also won the 2014 Law and Society Association’s J. Willard Hurst Prize for the best book on socio-legal history. The book focuses on a seemingly mundane, but ultimately decisive topic: how government compensates its employees. Understanding why the government moved to a salary-based pay structure is actually fundamental to understanding how the modern administrative state became viable, functional, and—critically—legitimate.

For much of the eighteenth, nineteenth, and even the twentieth, centuries, public officials were paid in ways that today we might find shocking:

Judges charged fees for transactions in the cases they heard. District attorneys won a fee for each criminal they convicted. Tax investigators received a percentage of the evasions they discovered…. Policemen were allowed rewards for recovering stolen property or arresting suspects. Jailors collected fees from inmates for permitting them various privileges, and the managers of penitentiaries had a share of the product of inmates’ labor. Clerks deciding immigrants’ applications for citizenship took a fee for every application. Government doctors deciding veterans’ applications for benefit did the same, as did federal land officers deciding settlers’ applications for homesteads. Even diplomats could lawfully accept a “gift” from a foreign government upon finalizing a treaty. (P. 1.) Continue reading "Salarization’s Impact on Governmental Legitimacy"

Jotwell Legal Scholarship Conference Next Week

Our 5th Anniversary conference on “Legal Scholarship We Like and Why It Matters” is coming up late next week. In the United States, the role of scholarship is under assault in contemporary conversations about law schools; meanwhile in many other countries legal scholars are routinely pressed to value their work according to metrics or with reference to fixed conceptions of the role of legal scholarship. We asked contributors to write addressing at least one of three broad topics: improving the craft of legal scholarship, improving the reach of legal scholarship, or when and how legal scholarship matters.

The program promises to stimulating to say the least. The papers are or will be available online. Papers discuss what makes legal scholarship great (or terrible), what legal scholarship is good for, how to make it more accessible, what role metrics should play in the sorting of legal scholarship, and how best to make more of the good stuff. The Keynote will be by Margaret Jane Radin, which she has titled Then and Now: Developing Your Scholarship, Developing Its Audience.

It’s already clear from the submissions that there will be controversy. Consider, for example, the opening words of Improve Yourself; Not the World by Jeanne L. Schroeder & David Gray Carlson (footnotes omitted),

We question the common assumption that most legal scholarship should be oriented towards policy, or to quote the title of this session, at improving the world. Jurisprudential, critical and doctrinal scholarship should have equal prestige with policy-oriented scholarship because they more closely relate to the practice of law. Consequently, we start with one policy recommendation : “Lay off the policy recommendations.”

Policy oriented scholarship is what French psychoanalyst, Jacques Lacan, called a “university discourse.” This terminology is ironic, referring to what academics tend to do, not what they should do.

We’ll post some more teasers in the coming days. Meanwhile, it’s not too late to Register.

Exhausting Regulatory Arbitrage

Annelise Riles, Managing Regulatory Arbitrage: A Conflict of Laws Approach, 47 Cornell Int’l. L.J. 63 (2014).

A recent gathering of regulators opened with a round of congratulations: bailouts were history, bail-ins were on the march, and victory was in sight, just as long as the assembled continued to speak with one voice and kept their bankers well-clear of the public trough. Moments later, it became clear that delegates from continental Europe were marching in different directions, while delegates from certain Nordic and African countries wanted no part of the march. The U.S. and the U.K. held the line, and the meeting closed on a cheerful note, with renewed pledges of regulatory unity.

It is fashionable to criticize regulatory harmonization as hopeless, pointless and potentially harmful. Yet harmonization continues to dominate regulation of international finance in good part because it feels like the obvious answer to two problems: regulatory competition and regulatory arbitrage. Scholarly criticism of harmonization tends to focus on competition. Annelise Riles’ liberating article shows why harmonization loses to arbitrage, and offers an intriguing alternative. Continue reading "Exhausting Regulatory Arbitrage"

Appealing to Injustice

William M. Richman & William L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (2013).

Professors William M. Richman and William L. Reynolds have been writing about the “crisis” facing the U.S. Courts of Appeals—a crisis borne out of the combination of a dramatic uptick in appellate caseloads and the lack of any corresponding increase in the number of federal appellate judges—since before I was born. Readers familiar with their groundbreaking earlier work in the field might therefore wonder whether there’s anything to learn from their new monograph on the subject, Injustice on Appeal. But the longevity of their critique actually underscores the significance of their newest work. By almost any account, the crisis facing the thirteen federal Courts of Appeals is only getting worse—and the steps those courts are taking in an effort to abate that crisis (what Richman and Reynolds refer to as the “Appellate Triage” regime) are only getting that much more controversial. Indeed, it is no overstatement to suggest that Injustice on Appeal is at once the most comprehensive—and yet accessible—descriptive account to date of both the crisis itself and the Appellate Triage regime that circuit judges have devised in response.

The real contribution of Injustice on Appeal, though, is not in its descriptive account of how the appellate crisis came to be, how circuit judges have responded, or why contemporary judges and lawmakers are so comfortable with such a problematic status quo. As the title suggests, Richman and Reynolds’ thesis is that the judicial response has created “injustice,” by producing a disproportionate impact on a specific subset of litigants. In their words, the effect of the Appellate Triage regime “falls disproportionately on the poor and middle class, whose appeals are deemed less momentous than the ‘big’ cases brought by or against the government or major private economic actors.” But while it’s impossible to discount the plight of poor and middle-class federal litigants in recent years, the real question Richman and Reynolds raise (but do not answer) is whether it’s the appellate crisis—as opposed to increasingly harsh procedural and substantive rules—that is to blame. Continue reading "Appealing to Injustice"

Title VII and Tort Law: A New Perspective

Martha Chamallas, Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, Ohio St. L.J. (forthcoming), available at SSRN.

In her paper, which is a working draft and part of the Ohio State Law Journal symposium, Torts and Civil Rights Law: Migration and Conflict, Professor Chamallas takes on the daunting task of analyzing how the Supreme Court’s use of agency principles have helped develop employment discrimination doctrine. Professor Chamallas does a superb job of explaining how the Court has used common-law tort principles to help create the theory of vicarious liability in workplace cases. She explains how the use of agency principles has diminished the scope of liability under Title VII, and she further analyzes how this erosion has played out in the case law. Most importantly, however, her paper “challenges the logic and the wisdom of borrowing tort and agency law to craft liability rules for Title VII” and calls on Congress to act swiftly to correct the situation. The paper thus does an excellent job of not only identifying the problem of integrating tort law into employment cases—it provides a workable remedy for resolving the issue.

In the first part of the paper, Professor Chamallas looks at the definition of “employer” under the statute. She explains how agency principles have helped define this term over time. Professor Chamallas undertakes a historical review of this definition, and she explains the importance of the role of the common law in the development of the definition of “employer” under Title VII. The paper further examines the Supreme Court’s well known and controversial employer liability decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, exploring the role these sexual harassment cases have had in shaping employment law through common-law agency principles. In particular, the paper examines the impact these cases have had on the development of vicarious liability and negligence theory in hostile work environment cases. Professor Chamallas discusses how the Supreme Court’s use of the Restatement (Second) of Agency in these cases was instrumental in establishing the negligence and strict liability standards for Title VII cases. Continue reading "Title VII and Tort Law: A New Perspective"

Reenvisioning DRR as a Two-Stage Interpretive Tool for Determining the Testator’s Probable Intent

Richard F. Storrow, Dependent Relative Revocation: Presumption or Probability?, 48 Real Prop. Tr. & Est. L.J. 497 (2014), available at SSRN.

Professor Richard F. Storrow’s comprehensive article about the doctrine of dependent relative revocation (DRR) is one that I like lots because I learned so much reading it. I will try to summarize some of the highlights of the article—there are many more (including, for example, a discussion of student responses to one of his exam questions invoking DRR).

Professor Storrow notes that the body of jurisprudence around DRR “lacks coherence” (P. 499), and he provides, throughout the article, many different formulations of the doctrine from courts and commentators. He notes that DRR “holds that revocation [of a will] is legally invalid if a testator has made some sort of mistake in performing it—specifically a mistake either related to her motivation for revoking the will or related to what she desires that revocation to accomplish.” (P. 501.) He writes that some courts have viewed it as a rule of construction/interpretive device while other courts have viewed it as a rule of law/legal principle. (P. 499.) Ultimately, Professor Storrow proposes that DRR be situated “within the familiar framework of will interpretation” (P. 541) as an interpretive device that has two stages: the first stage “would ask whether the circumstances surrounding the revocation render the intent to revoke ambiguous,” and the second stage “would examine the probable intent of a reasonable testator to revoke or not to revoke in those circumstances” (P. 499). Continue reading "Reenvisioning DRR as a Two-Stage Interpretive Tool for Determining the Testator’s Probable Intent"

Tort Liability as Compensation

Mark Gesitfeld, Compensation as a Tort Norm, in Philosophical Foundations of the Law of Torts (John Oberdiek ed., 2014).

For more than a decade, Mark Geistfeld has been developing an original and sophisticated theory of tort. Professor Geistfeld’s work has been characterized by a remarkable and admirable confluence of four characteristics. First, the work is attentive to, and respectful of, the fundamental commitments and nuances of tort doctrine and policy. Second, Professor Geistfeld’s writings display a deep knowledge of tort history and theory. Third, the work deploys a deeply sophisticated knowledge of economics but does so in language that is intelligible to those of us who are not legal economists. Fourth, the work is sensitive and responsive to the criticisms that legal philosophers have made of the economic analysis of torts. The result is an impressively original tort theory in the making. In Compensation as a Tort Norm, published in John Oberdiek, ed., Philosophical Foundations of the Law of Torts (Oxford, 2014) Professor Geistfeld both summarizes and extends his project.

The central claim of Compensation as a Tort Norm is vividly counterintuitive. According to Professor Geistfeld, all tort law—especially that part of the law which obligates actors to avoid harming others and thus demands the avoidance of actions whose occurrence triggers the payment of compensation—is compensatory. Quoting Frederick Pollock, who was himself quoting Justinian, Professor Geistfeld begins his paper with the claim that the law of torts “has for its main purpose nothing else than the development of [the] precept ‘Thou shalt do no hurt to thy neighbor.’” Elaborating, Geistfeld quotes Percy Winfield’s restatement of this precept as the principle that “all injuries done to another person are torts, unless based on some justification recognized by law.” The natural way to read these remarks, I think, is to take them to assert that the infliction of injury is presumptively tortious. Therefore, the infliction of injury presumptively gives rise to a claim for compensation. Continue reading "Tort Liability as Compensation"

Evaluating the Efficacy of Nonmonetary Tax Penalties

Joshua D. Blank, Collateral Compliance, 162 U. Pa. L. Rev. 719 (2014).

Monetary penalties for noncompliance are a routine feature of the tax laws. The tax literature includes extensive debate over different ways of structuring those penalties to improve tax compliance and eliminate the tax gap. In Collateral Compliance, Josh Blank shifts his gaze beyond that debate to examine what he labels “collateral tax sanctions”—nonmonetary penalties that federal and state governments impose, in addition to the monetary ones, for failing to comply with the tax laws.

One rather dramatic example of a collateral tax sanction comes from the Supreme Court’s 2012 decision in Kawashima v. Holder, in which the Court upheld a Bureau of Immigration Appeals interpretation of the Immigration and Nationality Act that treated willfully filing a false tax return as an “aggravated felony” and, thus, a deportable offense for non-citizens. Less spectacularly, perhaps, states regularly suspend driver’s licenses, professional licenses, liquor licenses, or hunting licenses for nonpayment of taxes. Congress has considered legislation revoking passports and denying FHA-insured mortgages as punishment for tax delinquency.

Plenty of articles examine the pros and cons of one collateral tax sanction or another. Blank’s article is unique for his effort to step back and consider collateral tax sanctions more systematically. He explores in some depth why collateral tax sanctions sometimes succeed where monetary tax penalties fail. He also proposes some basic principles for structuring collateral tax sanctions to maximize their effectiveness as a mechanism for encouraging tax compliance. Continue reading "Evaluating the Efficacy of Nonmonetary Tax Penalties"

Green Go! – The Military’s Sustainability Mission

­­Sarah E. Light, The Military-Environmental Complex, 55 B.C. L. Rev. 879 (2014).

“Green Go!” The U.S. battle cry in the Mexican-American War that, according to some etymologists, earned Americans their nickname as “gringos” offers a fitting description of the Department of Defense’s growing interest in sustainable energy generation and use. In The Military-Environmental Complex, Sarah E. Light takes stock of the military’s complicated, often conflicted relationship with environmental objectives and explores the drivers behind the armed forces’ recent promotion of sustainable energy. Building on the military-industrial complex’s history of fostering technology innovation while also enabling abusive rent-seeking, Light offers recommendations to ensure that the emerging military-environmental complex strikes a socially beneficial balance between mission objectives and broader environmental goals.

From an environmentalist perspective, the military’s many statutory and regulatory exemptions from environmental laws that conflict with its national security mission raise concerns that military and sustainability objectives are inherently at odds with one another. But Light makes a convincing case that both types of objectives may, in fact, be more aligned than is commonly recognized. Continue reading "Green Go! – The Military’s Sustainability Mission"

On the Rise of Lawyers in Lobbying in India

Bhargavi Zageri, Notes from the Field: How India’s Corporate Law Firms are Influencing Her Legal, Policy and Regulatory Frameworks, HLS Program on the Legal Profession Research Paper No.2014-19, 2014, available at SSRN.

Just as there has been a striking growth in scholarship on Indian law in recent years, there has also been a blossoming of writing on the Indian legal profession. Some of this writing has been less academic, and targeted at Indian lawyers themselves. Fitting the growing affluence of the Indian bar, there are now at least three online publications –Legally India, Bar & Bench, and Livelaw – that provide the latest news of the day about law firms, judges, law schools, and well known advocates in India. At the same time, a number of scholars, both inside and outside of India, have begun writing extensively on different aspects of the profession.

For example, in recent years Jayanth Krishnan has written on the motivations for the creation of “peel-off” law firms in the Indian corporate bar, Swethaa Ballakrishnen on women’s relative success in Indian corporate law firms, Pavan Mamidi on small town lawyers, Umakanth Varottil on the growth of the M&A bar in India, Abhinav Chandrachud on the motivations of Indian Supreme Court clerks, Greg Shaffer, James Nedumpara, and Aseema Sinha on building India’s legal capacity for international trade disputes, and David Wilkins and Mihaela Papa on how globalization has impacted the legal profession in India. Much, although certainly not all, of this recent writing on the Indian legal profession has taken place as part of the Globalization, Lawyers, and Emerging Economies (GLEE) Project at the Center on the Legal Profession (CLP) at Harvard Law School (full disclosure: I am currently a fellow at CLP and have contributed to the GLEE project). Continue reading "On the Rise of Lawyers in Lobbying in India"

Citizenship by Descent

There are three paths to citizenship in the United States: birth, naturalization, and descent. In recent political debates, birthright citizenship gets all the attention. Republican lawmakers perennially propose amendments that would make the children of undocumented immigrants ineligible for citizenship, relying on an interpretation of the Fourteenth Amendment that assumes such immigrants are not “subject to the jurisdiction thereof” and are therefore not within the protections of jus soli. But what of citizenship by descent, also known as jus sanguinis or derivative citizenship? This is a powerful mode of acquiring citizenship: it allows U.S. citizen parents living abroad to pass their citizenship status to their children who are not born on U.S. soil. This is literally citizenship “by blood.” This method of transmission is not provided for in the Constitution but has been recognized in the U.S. by statute since 1790. The current jus sanguinis statute does not receive much press or scholarly attention, which is surprising given that it is clearly discriminatory when it comes to children born out of wedlock to a U.S. citizen parent and a foreign parent. If the U.S. citizen is the mother, transmission of U.S. citizenship is virtually automatic. If the U.S. citizen is the father, transmission is not automatic: the father must demonstrate a range of prerequisites, including blood tests and proof of legitimation, among other requirements. Fathers and their illegitimate offspring have challenged this unequal treatment, but the Supreme Court has thus far failed to overturn the provision. In one seminal case, Nguyen v. INS (2001), the Immigration & Naturalization Service defended the provision by arguing that the differential treatment of mothers and fathers was necessary for “administrative convenience.” They argued, in so many words, that the law is justified in requiring fathers to provide more proof of the relationship to their illegitimate child since it is harder to tell if the father is really the father, even if his name is on the birth certificate.

In her article “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” Kristin Collins looks in depth at the origins, interpretations, and practices of derivative citizenship over the course of the nineteenth and twentieth centuries. In doing so, she not only systematically destroys the simplistic argument provided by the INS in the Nguyen case, but also reveals the deeply racialized nature of jus sanguinis. She demonstrates that throughout much of our history, derivative citizenship was moored in intertwined visions of women’s subordinate place in the family and of nonwhite persons’ subordinate place in the polity. Courts, agencies, administrators and consular officials across decades found ways to interpret and apply the law of derivative citizenship to favor white children over nonwhite children. Sometimes these efforts were explicit but other times they were hidden. It takes a skilled and capable historian like Collins to be able to dig beneath the surface of decades of government documents and court records and put the pieces of the jus sanguinis puzzle together. Continue reading "Citizenship by Descent"

The Depreciation of Precedent

Ryan C. Black & James F. Spriggs II, The Citation and Depreciation of U.S. Supreme Court Precedent, 10 J. Empirical Legal Stud. 325 (2013).

Landes & Posner’s 1976 article Legal Precedent: A Theoretical and Empirical Analysis is a path-breaking study in two ways. Drawing on the analysis of capital formation and investment, they were the first to offer a realistic theory of precedent. To them, precedents produce a flow of information that decreases in value over time as society evolves. Legal Precedent is also an early example of empirical scholarship in the law schools. To measure the efficacy of a precedent, they developed the-then novel strategy of counting the number of times judges cite to a decision. Applying this approach to samples of federal court decisions they found that precedent depreciated over time.

Unlike the precedents in their study, Landes & Posner’s paper hasn’t seemed to depreciate much. In just the last year or two, it has been cited in studies on labor law, judicial behavior, corporate law, and behavioral economics; and in journals as diverse as Theoretical Inquiries in Law, International Review of Law & Economics, the Journal of Evolutionary Economics, and the Annual Review of Political Science.

Black & Spriggs’s new article, The Citation and Depreciation of U.S. Supreme Court Precedent, could be seen as just another of the many studies that, as they write, “owes its origin” to Landes & Posner—just another citation. But that characterization would be a mistake. After all these years, Black & Spriggs break new ground. Continue reading "The Depreciation of Precedent"

A Journalist Takes on the History of White Supremacy

Ta-Nehisi Coates, The Case For Reparations, The Atlantic, May 21, 2014

By now, many JOTWELL readers will already have read (and re-read, and maybe even already assigned for class) Ta-Nehisi Coates’ stunning article in The Atlantic, “The Case for Reparations.” In this JOTWELL recommendation, then, I write not so much to recommend the article as something we like (though for those readers who have not yet read, I ask, “What are you waiting for?”) but to ask a different question. I write because after reading this journalistic masterpiece, which blurs the line between multimedia reportage, impassioned advocacy and rigorous scholarship, I am provoked to ask, in all seriousness, shouldn’t we scholars be rethinking the form that we use to do what it is that we do? Why aren’t more of us doing what he’s doing?

First, a brief review. Substantively, the article can be divided into four parts (though Coates divides it into ten). In the first part, we are introduced to Clyde Ross whom we meet in 1920s Jim Crow Mississippi. Whites steal land and a horse from the Ross family with impunity. Ross and the story move to 1960s Chicago, where Ross is robbed again, this time fleeced through a scheme in which houses are sold “on contract,” a draconian rent-to-own scheme in which buyers late on their payments can be evicted and left with no property or refunded equity. Finally, through Ross, we are introduced to the debilitation of modern-day North Lawndale Chicago—income and wealth half the rate of white communities, poverty, unemployment and infant mortality at twice the white rates, skyrocketing crime rates and a plummeting population. Continue reading "A Journalist Takes on the History of White Supremacy"

An Information-Cost Critique of Chattel Property Servitudes

Mulligan, Christina, The Cost of Personal Property Servitudes: Lessons for the Internet of Things (July 14, 2014). Available at SSRN.

Property scholars have long noted a peculiar inconsistency between real and chattel property. While law increasingly tolerates different forms of ownership in and servitudes limiting the use of land, it has remained steadfastly resistant to such restrictions in the context of personal property. In her sharp new paper, “The Cost of Personal Property Servitudes: Lessons for the Internet of Things,” Christina Mulligan shows that this long-lamented inconsistency isn’t a problem at all, but rather a sensible distinction that flows naturally from the core differences between real and chattel property. This insight not only helps explain a longstanding puzzle in property law, but sheds new light on the increasing practice of content owners using license agreements to restrict the use of digital goods.

From a purely formal perspective, one might reasonably wonder why courts allow increasing complexity in real property ownership—from historical forms like contingent remainders and fees simple subject to executory limitation to modern innovations like condominiums and time-shares—while insisting that no such variation is permitted with respect to chattels. If I can have a defeasible fee interest or a time-share in a vacation home in Boca Raton, why not also in a Rolex or a refrigerator? This seeming has engaged scholars since Coke. Most recently, Molly Van Houweling investigated contract-based restrictions on personal property from the perspective of physical property, suggesting that the same concerns that warrant skepticism about servitudes on real property may be used to govern servitudes in the context of personal property as well. Continue reading "An Information-Cost Critique of Chattel Property Servitudes"

The Medicare Shared Savings Program: A Missed Opportunity to Address Providers’ Growing Market Power

Thomas L. Greaney, Regulators as Market-Makers: Accountable Care Organizations and Competition Policy, 46 Ariz. St. L. J. 1 (2014), available at SSRN.

Most discussions of the Affordable Care Act (ACA) focus on its primary goal—expanding health insurance coverage. Often overlooked, however, are various ACA initiatives targeting another important goal—reigning in health care costs. Included among these initiatives is the Medicare Shared Savings Program (MSSP). The MSSP ambitiously seeks to shift the health care delivery system away from independent providers who provide costly, uncoordinated care to organizations that focus on coordinated, evidence-based care. Specifically, the MSSP encourages the formation of accountable care organizations (ACOs), clinically integrated organizations of physicians and other providers that work together to provide patients better care while lowering overall costs.

Proponents of ACOs believe ACOs hold great promise for slowing the growth in health care costs. Professor Greaney’s article, however, offers a cautionary note. As he explains, the movement toward ACOs threatens to exacerbate the problem of health care providers’ increasing market power. Although federal regulators are cognizant of this risk, Greaney contends that the MSSP’s regulatory framework does too little to prevent provider market power. Continue reading "The Medicare Shared Savings Program: A Missed Opportunity to Address Providers’ Growing Market Power"

A New and Different Way of Looking at Family-Based Immigration Policy

Kerry Abrams, What Makes the Family Special, 80 U. Chi. L. Rev. 7 (2013).

In asking What Makes the Family Special? Kerry Abrams posits an alternative approach to family-based immigration policy, eschewing “the old family/market dichotomy that family law scholars have been deconstructing for decades.” Family-based and employment-based immigration are, of course, the two largest classes of admission to the United States and each one seeks to elicit different, and, at times, conflicting policy goals. Abrams sees a clear dividing line between the two approaches. On one side stand proponents of expansive, family-based immigration who, in Abrams’ view, tend to rely on “soft,” rights-based arguments about human dignity and autonomy. On the other side stand those who view immigration, above all else, as a tool for optimizing labor markets. They tend to rely on “hard” economic arguments to make that case.

Abrams proposes a third way that considers how family-based immigration might benefit American society as a whole. This approach combines features from both sides of the family/market divide, embracing family-based immigration (though not necessarily a functional definition of family) while also relying on somewhat “harder” policy considerations than the ones that typically underpin pure rights-based approaches. Even so, Abrams acknowledges the role of human rights considerations in setting immigration policy: “no nation could make decisions about these issues without considering human rights as part of the calculus.” Although her article is a wide-ranging “thought experiment,” full of big ideas, Abrams is careful to limit herself to identifying potential policy rationales favoring family-based immigration rather than passing judgment on their ultimate plausibility or propriety. Continue reading "A New and Different Way of Looking at Family-Based Immigration Policy"

By All Means Possible

Thomas Mitchell, Growing Inequality and Racial Economic Gaps, 56 How. L. J. 849 (2013).

Thomas Mitchell’s article, “Growing Inequality and Racial Economic Gaps,” argues that reforms to the technicalities through which law constitutes real estate assets and relations may provide a foundation for progressive steps towards racial equality. Published in 2012 as part of a Howard Law Journal symposium on Protest and Polarization, this article starts with a sobering account of the intensification of racialized economic inequality in the US, within a general trend of increasing economic inequality since the 1970s. The first part of the article shows these developments are largely attributable to the large and growing wealth differentials between non-Hispanic whites and the Hispanic and African American populations. By 2009, according to Mitchell, the net worth of the median non-Hispanic White household was 20 times larger that of the median Black household (as compared to the 12:1 ratio in 1988 reported in Oliver and Shapiro’s landmark study1 and 18 times larger than the net worth of the median Hispanic household). Moreover, Mitchell reports that despite their losing some wealth during the Great Recession, White non-Hispanic households in 2009 generally owned more wealth than they had “for many if not most years between 1984 and 2009” whereas Black and Hispanic households owned “less wealth … than in any year since … 1984” (P. 860).

The second part of the article traces the relationship between rising economic inequality and shrinking intergenerational economic mobility in the US. Again Mitchell synthesizes some potent data to cast doubt on conventional wisdom. It transpires that the American education system no longer enhances social mobility (if ever it did) and indeed “may well be contributing to growing income and wealth inequalities” (P. 865); that the extent of occupational mobility in the United States is no more than average amongst industrialized countries; and that the level of intergenerational income mobility is demonstrably worse than that of neighboring Canada and below the norm for industrialized countries (P. 867). Continue reading "By All Means Possible"

About Fallacies

Neil M. Richards & William Smart, How Should the Law Think About Robots? (2013), available at SSRN.

The article seems dated for a review here. There are newer ones on the subject, like e.g., Ryan Calo’s “Robotics and the Lessons of Cyberlaw” of 2014, for example. But the Richards & Smart article sticks in my mind. Maybe because, while both are premature (I will come to that immediately), this article makes a—or better—the fundamental point about law and politics in the face of changing technologies in a very simple and clear way.

“Premature” used to be the comment we would receive from the European Commission when we, at the heyday of European cyber regulation, as members of the Legal Advisory Board, an independent expert group abolished long since, would suggest a new initiative outside the Commission’s own agenda. Some of the readers may have encountered this word when presenting new ideas as legal counsel. I have never taken it as a derogatory term. “Premature” signifies a quality, if not an obligation, of legal proactive comment and advice. In that sense dealing with robotics and law is premature, and so are, by the way, the “We Robot” Conferences (established in 2012) which give context to this article, a conference series in which—disclosure is due—our Editor-in-Chief has been involved prominently.

The fundamental point is slow in coming: Richards & Smart start with a definition of a robot: a “non-biological autonomous agent,” i.e. “a constructed system that that display both physical and mental agency but is not alive in the biological sense.” We all are familiar, as the authors point out, with all sorts of robots. We know them from science fiction readings and the movies. There is already the small round disk that cleans our sitting rooms. There has been the automated assembly of cars by industrial robots. And lately these cars drive around themselves as robots guided by Google. And robots, the authors argue, will become increasingly multipurpose, gain more autonomy, and turn from lab exhibits into everyday devices communicating with each of us at any time. Law? There is a reference to the Nevada state regulation of 2011 for those car robots. But otherwise the article mentions legal implications only in a very general way; there is no discussion; there is not even a listing of possible legal problems. Continue reading "About Fallacies"

Influential But Uninformed: What Scotus Knows About Policing

Seth W. Stoughton, Policing Facts, 88 Tulane L. Rev. 847 (2014).

Sift through any number of Fourth Amendment decisions from the Supreme Court, and you will find many general observations about the police: that theirs is a dangerous profession, or that they possess a specialized instinct for spotting criminal behavior. Typically, such statements are made without citation to any source. How do the Justices know these facts? And are such statements accurate?

That is the central issue in the insightful article Policing Facts, written by Seth Stoughton (himself a former police officer turned law professor): what should we think of general observations about police that are made by the Court? While we expect Supreme Court decisions to discuss the facts that arise out of a particular case, it is also true that in resolving the issues the Justices will often make some assertion about policing in general: such as the working environment of the police, police practices, or police psychology. (Indeed, as Stoughton notes, the Court is quite willing to make general observations about nearly every aspect of policing.) While some of these “legislative facts” are supported by citations, more typically they aren’t. (P. 857.) These policing facts appear seemingly from nowhere. What’s wrong with inserting unsupported statements about the police into opinions? As Stoughton argues, policing facts are “simply wrong almost all of the time.” (P. 868.)

The Court’s regular use of unsupported policing facts will not surprise many, but hardly anyone has noticed its importance before. Of course, a mainstay of criminal procedure scholarship is the critique of the Supreme Court’s decisions for their normative undesirability or their doctrinal confusion. But what if the Court gets the basic factual premises wrong? Continue reading "Influential But Uninformed: What Scotus Knows About Policing"

Judicial Retention Meets Due Process

Martin H. Redish & Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism, Wm. & Mary L. Rev. (forthcoming, 2014), available at SSRN.

The differences between the composition and independence of the federal and state judiciaries have often been stated in simplistic terms—federal judges are appointed and state judges are elected, so the former enjoy greater independence while the latter are subject to greater popular accountability. But several instances of non-retention of state judges, often on the heels of controversial decisions, show that the real threat to judicial independence is not popular election as the means of initially selecting judges. Rather, the problem is popular election as the means of retaining judges once selected.

As Martin Redish and Jennifer Aronoff argue in a new article, “Judges will always owe their job to someone, and often someone who may at some point appear before them or be directly impacted by their decisions.” Instead, “the threat that a judge might make decisions on the basis of what might win him another term in office (and thus ensure his continued livelihood) looms constantly.” If the goal is to ensure judicial independence at the state level that looks more like judicial independence at the federal level, initial selection is largely irrelevant—the focus must be on creating better systems of retention. However a judge obtains her position initially, she should not have to worry about whether a particular decision will adversely affect her ability to retain that position. Continue reading "Judicial Retention Meets Due Process"

Corporate Privacy

Elizabeth Pollman, A Corporate Right to Privacy, 99 Minn. L. Rev. (forthcoming, 2014) available at SSRN.

Professor Elizabeth Pollman explores the validity and scope of a constitutional right to privacy for corporations in a thought-provoking forthcoming article, A Corporate Right to Privacy. In light of the discussions and debates about the rights of corporations surrounding the Supreme Court’s recent Hobby Lobby decision, the article provides an insightful perspective for thinking about the rights and limitations of constitutional protections for corporations, in particular those relating to the right to privacy.

The article is methodically structured and carefully presented for the reader. Pollman states her measured, core argument early in the article:

This Article argues that corporations hold rights derivatively, to vindicate the rights of natural persons associated with or affected by the corporation. Accordingly, most corporations in most circumstances should not have a constitutional right to privacy….Yet because corporations are not monolithic, but rather exist along an associational spectrum, this Article also highlights that some nonprofit and private corporations could present a stronger claim given their varying purposes and dynamics, particularly in social, political, and religious realms.

Pollman, then, deftly reviews decades of federal and state law relating to corporate privacy, explains her derivative approach for adjudicating corporate constitutional rights, and closes by applying that derivative approach to the right to privacy. The writing in the article is lucid, and the analysis is nuanced. The article recognizes the complexities and sensitivities of examining issues at the intersection of privacy and corporations. It avoids bold pronouncements and omniscient schemes by being mindful of the diversity of considerations relating to privacy and corporations. Continue reading "Corporate Privacy"

Dispersing Judicial Power

Why does our republic accept judgments invalidating decisions of presidents, congresses, and federal agencies? Why do state authorities elected by local constituents accept decisional overrides by federal judges? These questions, often called “the counter-majoritarian difficulty,” have drawn the attention of scholars for decades.

Professor Ronald Krotoszynski’s “The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power,” casts new light, albeit indirectly, on this paradox. Descriptively, the article usefully examines the design parameters (constitutional, statutory, and procedural) of the federal judicial power. Normatively, it suggests hidden strengths to these parameters, which improve the quality and acceptance of judicial decisions that are often overlooked by analysts and reformers. Continue reading "Dispersing Judicial Power"

Scrutinizing the Effects of State Interest Group Participation in Federal Administration

Miriam Seifter, States as Interest Groups in the Administrative Process, Va. L. Rev. (forthcoming, 2014), available at SSRN.

Recent scholarship on administrative federalism has advocated for federal agencies to consider state interests—with many scholars praising the notion of giving states a voice in the federal regulatory process. However, in arguing for a strong partnership between states and federal agencies, federalism scholars have given little attention to what costs might flow from state involvement in federal administration. In States as Interest Groups in the Administrative Process, forthcoming in the Virginia Law Review, Professor Miriam Seifter astutely points out this void in the scholarship, and she begins to fill the scholarly gap by carefully scrutinizing and weighing the costs and benefits of state interest group participation in the federal regulatory process.

Specifically, Professor Seifter, who recently joined the University of Wisconsin Law School as an assistant professor, argues that—contrary to the prevailing view of many federalism scholars—state involvement in federal regulation is not all rosy. Rather, she asserts that state interest groups—which she defines as “organizations of state elected or appointed officials whose mission is to represent the official interests of their members, particularly in front of the federal government” (P. 8)—impose significant costs on the administrative process. Continue reading "Scrutinizing the Effects of State Interest Group Participation in Federal Administration"

A Grand Unified Theory of Employment Law

Samuel R. Bagenstos, Employment Law and Social Equality, 112 Mich. L. Rev. 225 (2013).

If the law of the workplace could be anthropomorphized into a family of four siblings, here’s how it might go: labor law would be the oldest, a raconteur spinning yarns about the old days; employment discrimination would be the middle child, an activist vigorously standing up for justice and equality; employee benefits would be an accountant, quietly off to the side at family dinners; and employment law would be the oddball youngest child, jumping from activity to activity without rhyme or reason.1 I teach employment law, and it is often compared to a “catch-all” or “grab-bag” category: anything that doesn’t fit in the other courses is covered there. The Fair Labor Standards Act is paired with covenants not to compete; unemployment compensation is alongside the at-will doctrine. This hodge-podge looks like an unfortunate intellectual shambles when contrasted with labor law, which has the coherence of an overarching (and little amended) system of regulation, as well as employment discrimination, which has a limited set of comparable federal statutory schemes. Perhaps as a result, the employment law course tends to be one that a professor picks up on the side, to accompany one’s main interest in one of the other three subjects.

Sam Bagenstos has set himself the task of cleaning up this particular set of Augean stables by providing an overarching theory to justify our set of employment law doctrines. In Employment Law and Social Equality, Bagenstos sets out a “social equality” theory of employment law under which individual employment doctrines can be understood, as well as justified, for their promotion of social equality. Jumping off from his work on social equality and antidiscrimination protections, Bagenstos notes the difference: “[w]here employment discrimination law targets the threats to social equality caused by occupational segregation and group-based subordination, individual employment law should be understood as targeting the threat to social equality posed by a boss’s ability to leverage her economic power over workers into a more general social hierarchy in and out of the workplace.” (P. 232.) He argues that social equality—the notion that each of us are equal members of our communities—serves as the primary justification for many important employment law doctrines, such as employee privacy and autonomy protections, antiretaliation provisions, arbitration regulation, child labor laws, and overtime protections. Nimbly straddling the line between positive and normative claims, Bagenstos argues that social equality can serve as a theoretical lens for both seeing the law and critiquing it. As an example, he argues that critics of the at-will rule are primarily concerned with its effects in undermining social equality, and that the rule should be dismantled for propping up workplace hierarchies. His “social equality” theory thus serves as a tool for understanding the law as well as a sword for attacking it when it exacerbates existing hierarchies. Continue reading "A Grand Unified Theory of Employment Law"

Descendibility: The Neglected Stick in the Bundle

David Horton, Indescendibility, 102 Calif. L. Rev. __ (forthcoming, 2014), available at SSRN.

Should the right to transfer an asset after death extend to kidneys, personal injury claims, or frequent flier miles? In Indescendibility, Professor Horton provides a fascinating and in-depth examination of this neglected right in property law’s bundle of sticks. He maps out a theoretical justification for indescendibility, grounding it in a set of practical concerns about the administration of posthumous property, and offers several suggestions for law reform. Professor Horton has a knack for unearthing unique and cross-cutting themes in the law of trusts and estates, and this piece again provides readers with significant food for thought.

Part I takes us on a tour of the variety of things that have been made indescendible by law, as well as the diverse sources of law from which this indescendibility flows. The United States Constitution prohibits the descendibility of noble titles and hereditary privileges, a move by the early American political elites to distinguish themselves from the British. Indescendibility is also the standard rule for body parts, where descendibility has been regulated by statute or outright prohibited because body parts have not typically been considered to be property. The common law doctrine of abatement restricts descendibility of legal claims for physical injury. While this doctrine has been superseded by survival statutes in nearly all states, these statutes are inconsistent in their scope and application, sometimes leaving the abatement rule intact in practice. Indescendibility by contract is the newest frontier of interest, where fine print often prevents sports fans from passing season tickets to their heirs. Continue reading "Descendibility: The Neglected Stick in the Bundle"

A Map Through the Punitive Damages Forest

Yehuda Adar, Touring the Punitive Damages Forest: A Proposed Roadmap, 1 Osservatorio Del Diritto Civile E Commerciale [The Civ. & Com. L. Observer] 275 (2012), available at SSRN.

The questions raised by punitive damages are numerous and varied: Should punishment be a part of the civil system? Are punitive damages awards “out of control”? Should a punitive damages award be split between the State and the individual plaintiff? Should caps be placed on punitive damages? Indeed, the topic of punitive damages has been examined from competing empirical perspectives, from a comparative law analysis, from a historical angle, and the list goes on and on and on.

Enter a new article by Yehuda Adar. In this thought-provoking piece, Adar offers a framework for organizing these various debates about punitive damages. In so doing, Adar provides a convenient and helpful synthesis of both the current objections to punitive damages, and the counter-arguments in support of punitive damages’ place in the civil liability system. Continue reading "A Map Through the Punitive Damages Forest"

Next Up, Incest

Anthony C. Infanti, Big (Gay) Love: Has the IRS Legalized Polygamy?, N.C.L. Rev. Addendum (forthcoming, 2014), available at SSRN.

Gay marriage opponents love to fear monger about the slippery slope of extending marriage beyond the legal union between one man and one woman. They prophesy that if we allow marriage between two men or two women, we will descend into a Gomorrah of incest, adultery, polygamy, and animal love. In his essay, Big (Gay) Love: Has the IRS Legalized Polygamy?, Anthony Infanti makes subversive use of this repugnant meme to advance his view that tax results should not depend on marriage in the first place.

Infanti’s argument focuses on an analysis of Revenue Ruling 2013-17 (the Ruling), which recognizes same-sex marriages for federal tax purposes. Issued in 2013, after the U.S. Supreme Court invalidated section three of the federal Defense of Marriage Act, the Ruling announces the IRS’s adoption of a general interpretive rule that “for Federal tax purposes … recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple’s place of domicile.” Infanti interprets the Ruling to apply to a limited subset of same-sex marriages, in contrast to what he calls the “alternative interpretation” of the Ruling, which reads the Ruling more expansively to cover a larger number of same-sex marriages. Infanti claims that under alternative interpretation of the Ruling, the IRS would also have to recognize the validity of plural marriages. Continue reading "Next Up, Incest"

Those Are Pearls That Were His Eyes

Full fathom five thy father lies;
                Of his bones are coral made;
Those are pearls that were his eyes:
                Nothing of him that doth fade
But doth suffer a sea-change
Into something rich and strange.
Sea-nymphs hourly ring his knell
                                    Ding-dong
Hark! now I hear them – Ding-dong, bell.
–William Shakespeare, The Tempest

During the War of 1812, Philadelphia’s Academy of Fine Arts petitioned a Nova Scotia admiralty court to release works of art bound for it from Italy aboard an American merchant ship captured by the British and brought to Halifax. The court granted the petition distinguishing, for the first time in a published judicial opinion, cultural property from other chattel, stating that works of art are “entitled to favour and protection.”1 By creating an exception for paintings and prints, the court gave cultural property a special legal status, the contours and extent of which remain elastic. Two centuries after the Nova Scotia court christened the field of cultural property law, Valentina Vadi has written an insightful article seeking to determine whether a norm of customary international law is developing to distinguish and provide special legal treatment for a particular kind of cultural property: sunken warships.

Sunken ships are an especially complicated form of cultural property. A ship’s wreckage and cargo are often historically and aesthetically important and immensely valuable monetarily; their archaeological context preserves unique and irreplaceable information; their human remains implicate practices and traditions relating to treatment of the dead; and some pose environmental hazards to flora and fauna (both of which are deemed cultural property under a 1970 UNESCO cultural property convention). Because new technologies are facilitating the discovery, identification, and recovery of shipwrecks, it is reasonably foreseeable that disputes over them will continue. Thus, the growing scholarship on shipwrecks is timely, and Valentina Vadi’s inquiry, in particular, responds to an important question. Continue reading "Those Are Pearls That Were His Eyes"

Just the Beginning: Studying the Global Demography of Lawyers

Ethan Michelson, Women in the Legal Profession, 1970-2010: A Study of the Global Supply of Lawyers, 20 Ind. J. Global Legal Stud. 1071 (2013).

In the past a few decades, feminization has been one of the most notable developments in the legal profession worldwide. From Continental Europe to North America, from Latin America to Asia, research has shown a rapid increase in the proportion of female lawyers in vastly different national and legal contexts (see Kay and Gorman 2008 for a review). Yet few existing studies provide a good cross-national comparison of the global trends of lawyer feminization. Despite the enduring structural barriers in recruitment, compensation, and promotion that women face in law firms and other elite legal institutions, they have continued to enter the bar in vastly different social contexts. What are the driving forces behind the feminization of lawyers? And how does this process vary from one country to another?

Using data on lawyer populations and gender compositions assembled from national censuses and lawyer statistics in 86 countries, Ethan Michelson’s recent study offers a comprehensive and convincing analysis of the relationship between bar expansion and lawyer feminization. Despite large variations of legal systems and lawyer demographics across different countries, Michelson finds a highly consistent pattern, that is, almost no country’s legal profession has attained a feminization level of at least 30% of women before its lawyer density (i.e., lawyer/population ratio) surpassed a level of 2,000 people per lawyer. In other words, feminization is part of some larger demographic changes in the legal profession worldwide. Continue reading "Just the Beginning: Studying the Global Demography of Lawyers"

Bodies on the Line: The Private Tragedies Underlying Modern Products Liability Law

“Legal interpretation,” Robert Cover famously wrote, “takes place in a field of pain and death.” Honoring Cover’s important insight is one of the great challenges of legal scholarship. As we use our expertise to explore the nooks and crannies of our “legal world”—the clever transactional devices, complex regulatory schemes, and jurisdictional puzzles—do we recognize the state-inflicted and -sanctioned violence on which this world depends? Barbara Young Welke’s The Cowboy Suit Tragedy is a powerful example of how to write about law without losing sight of what Cover calls the “bodies on the line.”1 In the tradition of critical legal history, Welke’s insightful and empathetic account of a mid-twentieth-century products liability case goes further still, to show us the profoundly unequal impact of law’s violence. By placing the case in the context of the “democratization of [consumer] desire,”2 the rise of product liability insurance, and the inherently atomizing features of private law, Welke reminds us that even when tort law forced manufacturers to bear the monetary cost of accidents, the emotional and physical injuries lay where they fell. Families—here, children—owned the hazards inherent in many products, and most often they owned them not as a class or community, but as individuals, as scattered and disconnected as the transactions that brought the products into their lives.

The Cowboy Suit Tragedy centers on the New York case McCormack v. M. A. Henry Co., a wrongful death suit brought by the McCormack family against the manufacturers of the Gene Autry cowboy suit. A popular toy since it first came off the production line in 1942, the “Autry cowboy ranch outfit” offered parents a way to “provide their children with a protected childhood,” an intense postwar desire, while participating in the mass consumer economy that increasingly defined American identity. (P. 103.) Unfortunately for seven-year-old Tommy McCormack, who received the toy for Christmas in 1944, there was a hazard “designed in” to the costume: its plush white chaps were made from a highly flammable viscose rayon fiber, at a time when “children encountered fire as a regular part of daily life.”3 “One minute Tommy was playing,” Welke writes, drawing from court testimony, “and the next he was screaming,” in what his brother Jackie remembered as “a ‘circle of fire.’” After four long months, he died from his injuries. (P. 101.) Other children had by then suffered similar fates, but after Mr. McCormack’s chance encounter with a lawyer, Tommy became the cowboy suit’s first legally cognizable victim. (P. 111.) Continue reading "Bodies on the Line: The Private Tragedies Underlying Modern Products Liability Law"

International Law and Dworkin’s Legal Monism

Ronald Dworkin, A New Philosophy for International Law41 Phil. & Pub. Aff. 2 (2013).

That Dworkin waited until the very end of his career to take on international law might seem strange. One of Dworkin’s great insights is that participants in legal practices often disagree about the criteria for identifying law, while nevertheless thinking that their disagreement has a determinate answer. If we are to do justice to these “theoretical disagreements,” as Dworkin called them, we cannot hold a positivist theory, like H.L.A. Hart’s, under which the existence and content of the law are ultimately determined solely by social facts about a community’s legal practices. Only by introducing evaluative considerations can we make sense of practitioners’ commitment to law that transcends these social facts.

International law would appear to be a poster child for the Dworkinian theory of law. Theoretical disagreements about international law are common, and those seeking to resolve them commonly appeal to evaluative considerations. What is more, it appears that international law, by its very nature, transcends social facts about the legal practices of a particular community. The principles of international law seem to stand above and bind the American, French, or Uzbek communities. Continue reading "International Law and Dworkin’s Legal Monism"

Seeing Like a Copyright Lawyer: Judging Similarity in Copyright Cases

There are many ways to use empirical research in intellectual property scholarship. Work can be qualitative or quantitative, interdisciplinary or highly focused on the law. One of the most intriguing questions I’ve seen investigated empirically of late is “what makes us think that one work is similar enough to a previous one to infringe?” Given the significant expansion in the scope of copyright from pure reproduction to derivative works and substantially similar works, this is an important issue.

The two articles I highlight here approach the question from very different, but complementary, perspectives. The authors of Judging Similarity start with legal scenarios adapted from real cases and ask survey respondents whether the works are similar enough to infringe. Kate Klonick, like David Morrison, examines similarity from a cognitive science perspective, starting with what researchers already know about human judgments of similarity and difference in nonlegal contexts. (Disclosure: I advised Klonick, now pursuing a Ph.D. at Yale, on this project.) Continue reading "Seeing Like a Copyright Lawyer: Judging Similarity in Copyright Cases"

New Governance as the New Weapon in the Fight Against Fraud

Joseph W. Yockey, Choosing Governance in the FCPA Reform Debate, 38 J. Corp. L. 325 (2013), available at SSRN.

Health law scholars sometimes pay inadequate attention to those who don’t write specifically in our area, which is the reason I have dedicated this and my previous jot to articles by non-health law professors that give us the big picture on issues related to the False Claims Act and the Foreign Corrupt Practices Act (FCPA), both of which are key enforcement mechanisms in the health sector. Bribery is unquestionably one of the most significant risks global life science companies face, given the SEC and DOJ’s recent increase in FCPA enforcement. Growing numbers of academic medical centers are engaging in joint ventures throughout the world, particularly in emerging economies where the risks of corruption are greatest. For these reasons, then, the FCPA is increasingly relevant to the health lawyer and compliance professional.

Professor Joseph W. Yockey’s recently published article, Choosing Governance in the FCPA Reform Debate, is a worthwhile read for three reasons. First, it summarizes the history and salient parts of the FCPA for those requiring a primer on the law. Second, it examines the two sides of the debate—between the business community (led by the Chamber of Commerce, which is also fighting vigorously for changes to the False Claims Act) and entities such as Human Rights Watch and Amnesty International —over whether Congress should revise the FCPA and whether DOJ and the SEC are over-enforcing the law. Third, the issues evoked by the concerns about FCPA enforcement are quite similar to the debate surrounding enforcement under the False Claims Act thereby giving the health professor, like myself, who is not a white collar specialist, a ten-thousand-foot view across the statutory spectrum of enforcement agency behavior. Continue reading "New Governance as the New Weapon in the Fight Against Fraud"

A Pro-Gay-Teen Argument for Pushing the Pause Button on Anti-bullying

Andrew Gilden, Cyberbullying and the Innocence Narrative, 48 Harv. Civ. R.-Civ. L L. Rev. 357 (2013).

As Andrew Gilden reports in this revealing article, bullying and especially cyberbullying reforms are becoming institutionalized. Prosecutors respond to media coverage of teens bullied into suicide with creative prosecutions. State and federal law require secondary and primary schools to single out bullying for swift and severe punishment and have set up special bureaucratic processes to surveille bullying, report it up the chain of command, and publicly rank schools by the numbers they generate in the process. Schools are also required to teach kids the evils of bullying. Because internet use is often blamed as a medium for “cyberbullying,” a big segment of the antibullying campaign is focused on controlling teens’ access to sexual content on line. This includes Congressional efforts to immunize ISPs for restricting access to obscene material on-line and to enhance parents’ ability to filter their children’s access to that material. Cyberbullying overlaps in many policy efforts with sexual predator scares to promote the closure and blockage of sexually-oriented chat rooms and other fora in which teens could get in over their heads.

Preventing and punishing bullying has become an important LGBT priority. From the media storm over the suicide of Tyler Clementi to President Obama and Kim Kardashian reaching out to gay kids on Dan Savage’s “It Gets Better” website, pro-gay advocacy has played a key role in generating social and political support for anti-bullying reforms. The logic of their efforts seem obvious: gays are victims of bullying precisely for their sexuality, so controlling this phenomenon will be good for them. Continue reading "A Pro-Gay-Teen Argument for Pushing the Pause Button on Anti-bullying"

Crime, Surveillance, and Communities

Crime, Surveillance and Communities, 40 Fordham URB. L.J . 959 (2013).

Timing is everything. I started reading Crime, Surveillance and Communities in the midst of the unrest in Ferguson, Missouri. The community north of St. Louis was the site of civil unrest in the wake of the shooting of Michael Brown, an unarmed black teenager. I could say that Prof. Capers’ article, which explores the use of technological surveillance as a mechanism to police the police, is prescient. However, given the number of such shootings, especially those that have risen to national attention, I would instead describe the article as a thoughtful effort to assess how technology might be used to assist and address interactions between police and community members, especially interracial interactions. Let me explain.

Capers argues that because the Fourth Amendment does protect some actions in public from technological surveillance, reasonable privacy intrusions must be balanced with the public good. Thus, technological surveillance in public is legitimate only so long as the surveillance is reasonable. Capers begins by introducing the many ways in which surveillance technology is already being used to watch our public movement and activities, be it through video cameras, biometric technology, zoom and movement capabilities, license plate readers, car trackers, CCTV, facial recognition technology, or apps. All of these, he says, combine to amount to “warrantless mass surveillance.”1 Thus, the Big Brother possibility, and the Foucauldian panoptican, are already a part of our lives. (P. 964.) Continue reading "Crime, Surveillance, and Communities"

From Google to Tolstoy Bot: Should the First Amendment Protect Speech Generated by Algorithms?

Stuart Minor Benjamin, Algorithms and Speech, 161 U. Pa. L. Rev. 1445 (2013), available at SSRN.

Information, increasingly, is everywhere. Machines gather information, process it, and automatically communicate it, often in terms humans understand. Bots tweet on Twitter; Fitbits communicate a user’s activity record; Project Tango devices render 3D maps; and IBM’s Watson can now argue. With algorithms increasingly writing, drawing, and even debating, a central question for regulators, courts, and scholars is to what extent the First Amendment protects speech generated by algorithms. If algorithmic communication falls within First Amendment coverage, regulators will have a more difficult time governing it. But if it does not, courts will need to explain how the exclusion can sit comfortably with First Amendment theory and current doctrine.

Stuart Minor Benjamin positions the puzzle of algorithmic speech as part of a larger project in understanding First Amendment jurisprudence and its expansion and contraction. In previous work, Benjamin has asked how hard it would be to expand First Amendment coverage; in Algorithms and Speech, he asks how hard it would be to narrow the existing jurisprudence to exclude a practice that would otherwise be covered. Benjamin recognizes the potential regulatory consequences of First Amendment coverage of algorithmic speech. But he surveys Supreme Court caselaw and concludes that there is no principled way to exclude many algorithmic communications from speech protection without excluding much other communication that we deem squarely within the First Amendment’s coverage. Continue reading "From Google to Tolstoy Bot: Should the First Amendment Protect Speech Generated by Algorithms?"

Jotwell 2014 Summer Break

Jotwell is taking a short summer break. Posting will resume on Tuesday, September 2. However, even while we’re on break, we’ll be accepting submissions, editing them, updating the site’s theme, and of course getting ready for Jotwell’s 5th Anniversary Conference on Legal Scholarship We Like and Why It Matters. Please note that Registration for Jotwell’s conference is now open.

If you like Jotwell, why not share — help us find more readers. Tell a friend about Jotwell. And if you are an academic reader, please consider recommending Jotwell to your students.

We have a Jotwell Flyer that you can print out and post, or perhaps even hand out at Orientation.

Jotwell_Flyer_2014.08_v3_Page_1

We’ll be back in two weeks — after the US Labor Day holiday.

What We Talk About When We Talk About Crimes

John S. Stinneford, Punishment Without Culpability, 102 J. Crim. L. & Criminology 653 (2012).

John Stinneford begins his article by asking the reader to imagine herself a UPS delivery truck driver in Tampa, Florida. He continues:

While on your way to make [a] delivery one Friday, you are stopped by the Tampa police. They seize the package from the back of your truck, open it, and discover one kilogram of cocaine. You are charged with possession of cocaine with intent to deliver, a crime punishable by fifteen years in prison. To convict you of this crime, prosecutors are not required to prove that you knew the package contained cocaine or any other illicit substance. All they have to prove is that you possessed it and intended to deliver it. You do have the right to raise lack of knowledge as an affirmative defense – but the burden rests on you.

Is this legal? Probably. Why is the Supreme Court OK with that? Stinneford’s article explores this question. Continue reading "What We Talk About When We Talk About Crimes"

What if you woke up one day in a place where there was no Courts Law?: The Impact of Teaching Procedure on the Legal Academy

Elizabeth G. Thornburg, Erik S. Knutsen, Carla Crifò, Camille Cameron, & David Bamford, A Community of Procedure Scholars: Teaching Procedure and the Legal Academy, 51 Osgoode Hall L.J. 93 (2013), available at SSRN.

In identifying legal scholarship worth celebrating (i.e., scholarship we like lots and that matters), few articles would seem to qualify better than one that traces the mutually supportive relationship between the teaching of civil procedure and the strength of the academic community and the scholarship in the field.

One such article is A Community of Procedure Scholars, a piece by multiple authors from four different legal systems—United States, Canada, Australia, and England and Wales. The authors compare and contrast the treatment of Civil Procedure in the law school curriculum and in the scholarly literature of their respective systems. Continue reading "What if you woke up one day in a place where there was no Courts Law?: The Impact of Teaching Procedure on the Legal Academy"

The Market For “Charlatans”

Alvaro Sandroni, At Least Do No Harm: The Use of Scarce Data, 6 Am. Econ. J.: Microecon. 1 (2014).

Corporate lawyers and their clients routinely hire experts to deliver probabilistic forecasts. For instance, they hire credit rating agencies to deliver credit ratings, which effectively are probabilistic forecasts of credit default events. They also hire experts to deliver probabilistic forecasts of economic, legal, and political events, and even weather events. In hiring an expert, however, they face two distinct problems. The first is a moral hazard problem—how to evaluate, or “score,” an expert’s forecasts in a way that incentivizes the expert to honestly report her opinions (and, importantly, does not perversely incentivize the expert to dishonestly report her opinions to game the system). The second is an adverse selection problem—how to distinguish informed experts (genuine experts) from uninformed experts (charlatans).1 The scoring problem was famously solved by Glenn Brier, who proposed a scoring rule that gives the proper incentives.2 The Brier score is essentially the mean squared error of the expert’s forecasts over the evaluation sample. Solutions to the “charlatans” problem, however, have proven harder to come by. When it comes to probabilistic forecasts, it turns out that it is difficult to devise ex ante tests to screen informed experts from uninformed experts. Basically, the difficulty is that a test which is designed to pass a genuine expert with high probability can also be passed by a strategic charlatan with high probability.3 And ex post warranties are generally not effective.4

In a recent article, Alvaro Sandroni proposes a novel contractual solution to the charlatans problem. More specifically, Sandroni shows that it is possible to write a contract that incentivizes a genuine expert to honesty report her informed opinion and, at the same time, incentivizes a charlatan to “do no harm,” i.e., not report a misleading, uninformed opinion. What’s more, the contract is simple and enforceable, as it makes the expert’s fee contingent on two observable and verifiable facts: the expert’s opinion and the outcome of the event. That said, the contract’s ability to provide the correct incentives depends on a key assumption about the behavior of charlatans, which may or may not hold in reality. Continue reading "The Market For “Charlatans”"

Originalism and Interracial Marriage

David R. Upham, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause (2013), available at SSRN.

Legislation banning interracial marriage has long played an important role in debates over originalism and constitutional interpretation. When such laws came under legal attack in the 1950s and 1960s, their seeming compatibility with originalism was emphasized by conservatives and segregationists as a justification for courts to uphold them.Since the Supreme Court invalidated laws banning interracial marriage in Loving v. Virginia (1967), their apparent acceptability under the original meaning has been deployed by a very different set of commentators: opponents of originalism, most of them associated with the political left. For these critics, the compatibility of laws banning interracial marriage with originalism is not a reason to uphold them, but rather a reason to reject originalism itself. If originalist constitutional interpretation requires such an abhorrent result as upholding blatantly racist laws restricting marriage rights, then perhaps originalism itself is morally bankrupt.

Regardless of the purpose for which it is used, the originalist case for the constitutionality of laws banning interracial marriage seems initially strong. Public opposition to interracial marriage was widespread when the Fourteenth Amendment was ratified and for decades thereafter. Numerous states, northern and southern, banned interracial marriage at the time the amendment was adopted, and the Supreme Court unanimously endorsed the constitutionality of anti-miscegenation laws in Pace v. Alabama in 1883. As late as 1968, a year after Loving, a Gallup poll showed that only 20% of Americans approved of interracial marriage between blacks and whites. This and other similar evidence helps explain the longstanding conventional wisdom that the result in Loving cannot be justified on originalist grounds.

In his recent unpublished paper, “Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause,” Professor David Upham has produced the most far-reaching challenge to that conventional wisdom so far. The few previous originalist defenses of Loving, such as an important 2012 article by Steven Calabresi and Andrea Matthews, do not consider as wide a range of evidence. Moreover, Calabresi and Matthews concede that the “original intent” of the amendment and the expectations of the public were consistent with the constitutionality of laws banning interracial marriage, arguing only that the Amendment’s “original public meaning” cuts against those laws. Continue reading "Originalism and Interracial Marriage"

Taking Administrative Law to Tax Exceptionalism

Kristin E. Hickman, Administering the Tax System We Have, 63 Duke L.J. 1717 (2014), to be reprinted in Duties to the Tax System: A Resource Manual for Tax Professionals (Scott Schumacher & Michael Hatfield eds, forthcoming 2014), available at SSRN.

In addition to regular servings from the Administrative Law Review and Yale Journal on Regulation, I look forward to two annual administrative law symposia. This year’s symposium from the George Washington Law Review will not become available here until later this month, so I’ll focus on the Duke Law Journal’s Taking Administrative Law to Tax Symposium, which was published in May. There is a lot to like about this symposium, starting with a refreshingly succinct foreword from Andy Grewal and followed by articles from Ellen Aprill, Bryan Camp, Kristin Hickman, Steve Johnson, Leandra Lederman, and Lawrence Zelenak. [Video of the symposium is available here, and the written issue is here.]

As the title suggests, the symposium focuses on tax exceptionalism, or “tax myopia” as Paul Caron coined the phenomenon two decades ago. Tax exceptionalism is the misperception that tax law is so different from the rest of the regulatory state such that general administrative law principles do not apply. But tax exceptionalism is dying—something my tax colleague Stephanie Hoffer and I document in a forthcoming article on the Tax Court and the Administrative Procedure Act (“APA”). In Mayo Foundation v. United States, for instance, the Supreme Court refused to apply a standard less deferential than Chevron to the Treasury Department’s interpretation of the tax code, noting that it was “not inclined to carve out an approach to administrative review good for tax law only.” That same year (2011), in Cohen v. United States, the D.C. Circuit held that the judicial review provisions of the APA apply to IRS notices: “The IRS is not special in this regard; no exception exists shielding it—unlike the rest of the Federal Government—from suit under the APA.” Continue reading "Taking Administrative Law to Tax Exceptionalism"

Is Standing Out the Best Way to Fit In?

Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U.L. Rev. 715 (2014), available at SSRN.

I’m a sucker for a contrarian perspective, and that’s certainly what one finds in Brian Soucek’s recent article. It’s pretty conventional wisdom—although often decried—that the safest bet for identity expression in the workplace is by assimilating to the expectations of the majority. Indeed, there’s a whole critical literature devoted to the “covering” and “working identity.”

Looking Gay Enough challenges that proposition—at least where sexual orientation is concerned and at least in terms of what identity strategy maximizes an employee’s prospects of prevailing in a lawsuit. Professor Soucek, of course, is writing about the Never Never Land that current judicial interpretations of Title VII have created: it’s not illegal to discriminate on the basis of sexual orientation but it is illegal to discriminate against individuals on the basis of failure to conform to gender stereotypes (except for the ultimate stereotype that individuals are sexually attracted to persons of the opposite sex). Continue reading "Is Standing Out the Best Way to Fit In?"

Teaching Trusts and Estates

Robert H. Sitkoff, Trusts and Estates: Implementing Freedom of Disposition, 58 St. Louis U.L.J. 643 (forthcoming, 2014), available at SSRN.

Professor Robert Sitkoff’s article, Trusts and Estates: Implementing Freedom of Disposition, provides practical information and addresses major themes for professors teaching trusts and estates including intestacy, wills, trusts and planning for incapacity. It is a wonderful primer for professors and students new to the area of estates and trusts. For the more seasoned professors, Professor Sitkoff provides policy questions that will certainly provide an opportunity for healthy debates amongst the students. There are only a handful of articles that explicitly address trusts and estates pedagogy; this article does not simply summarize the curriculum, but rather it encourages law faculty to think in a big picture way about the overarching issues. As such, it is an important contribution to the scholarly literature.

Professor Sitkoff suggests that the subject be viewed through the lens of “freedom of disposition,” in contrast to the more traditional approach that usually proceeds according to methods of succession (probate succession by will and intestacy, and non-probate succession by inter vivos trust, pay-on-death contract, and other such will substitutes). While recognizing there are limitations on the freedom of disposition, he convincingly argues that law and policy start with this premise and that our analysis of them should also start that way. The priority, in a property transfer transaction, is placed on the intent of the transferor over the putative rights of the recipient of the property, whether the property passes via intestacy, will, trust, or nonprobate transfer. Continue reading "Teaching Trusts and Estates"

In Defense

James Goudkamp, Tort Law Defences (2013).

Who cares about tort defenses, or as Australian turned Englishman James Goudkamp spells it, “defences”? The decline in the potency of tort defenses over the last century, their only occasional use in actual litigation, their atrophy in contrast to the robust elements of negligence law, their lack of specificity to tort, their definition as second-tier questions, and their frequent specification by statute rather than common law—all have resulted in a fairly undersized group of interested scholars, according to Goudkamp.1 But for those of us who, nevertheless, maintain an interest in the topic, Goudkamp’s book is a must read.

At the start, after considering rival definitions, Goudkamp defines a tort defense as a device which “relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present.”2 Then, through a vivid series of case examples, Goudkamp differentiates defenses from denials of an element of plaintiff’s prima facie case. Once separated, Goudkamp divides defenses into two mutually-exclusive sets: justification defenses and public policy defenses. In the first group “the defendant acted reasonably in committing a wrong.”3 Included within this group are defenses such as self-defense, consent, and public necessity. In the second, the defendant “makes no claim whatsoever about the justifiability of his acts,” but should not face liability anyhow.4 To this category, Goudkamp assigns defenses such as absolute privilege, various immunities and limitation bars. In addition to this dual taxonomy, Goudkamp ultimately argues for a third category which he terms “denials of responsibility,” and distinguishes them from excuses, for infancy and insanity.5 Continue reading "In Defense"

An Empirical Test of Public Choice Theory

Susannah Camic Tahk, Public Choice Theory & Earmarked Taxes, N.Y.U. Tax L. Rev. (forthcoming, 2015), available at SSRN.

In 1980, James Q. Wilson, in The Politics of Regulation, predicted that laws with diffuse costs and concentrated benefits would be relatively easy to enact, but that laws with concentrated costs and diffuse benefits would be relatively hard to enact and, once enacted, hard to maintain. This hypothesis, one of the pillars of public choice theory, has long been asserted without empirical verification. Indeed, in 1994, Donald Green and Ian Shapiro, in Pathologies of Rational Choice Theory, challenged the willingness of theorists to accept such unverified predictions as true: “The discrepancy between the faith that practitioners place in rational choice theory [of which public choice theory is a branch] and its failure to deliver empirically warrants closer inspection of rational choice theorizing as a scientific enterprise.” In Public Choice Theory & Earmarked Taxes, Susannah Camic Tahk provides the first rigorous empirical support for Wilson’s hypothesis.

Her study explores the histories of 1497 state-level earmarked taxes between 1997 and 2005. Earmarked taxes, in general, produce more concentrated benefits than taxes the proceeds of which flow into a state’s general fund. Thus, we would expect earmarked taxes to perform strongly as revenue generators. And, indeed, Tahk finds that the earmarked taxes in her sample raised 58.39% more revenue in 2005 than in 1997—a larger percentage increase than any major federal tax over the same period. Continue reading "An Empirical Test of Public Choice Theory"

Is There Any Disincentive to Deceiving an International Court or Tribunal?

W. Michael Reisman and Christina Parajon Skinner, Fradulent Evidence Before Public International Tribunals: The Dirty Stories of International Law (Cambridge University Press 2014).

Although its publication may come a bit late for our summer reading, Professor Michael Reisman’s Herch Lauterpacht Memorial Lectures have finally (with the co-authorship of Christina Skinner) been released by CUP in the form of a long-awaited 222-page monograph, including a detailed and valuable index. Occasionally the passage of a decade (in this case somewhat more) between the spoken word and its reformulations in print leads to an attenuation of the bluntness of the message. Innocents whose sensibilities with respect to the realities of international adjudication may have been assaulted in the course of those three wintry evenings in Cambridge can now verify that the carryings-on reviewed by the authors are still captured with uncompromising directness, as the subtitle suggests. Given the essentially consensual nature of all international adjudication, this study should be given concerned attention in relation not only to permanent courts but also to arbitrators whose mandate is limited to a single case.

On one view, we really shouldn’t be the least shocked. After all, States repeatedly find it legitimate to put their own soldiers in harm’s way, and presumably think the slaughter of young people from neighboring countries is justified, in order to secure territorial ambitions or to maintain what they think of as their “credibility”. What then is a bit of forged evidence (or even a case entirely based on it) among urbane friends, when used for the same purpose but on the legal battlefield? Continue reading "Is There Any Disincentive to Deceiving an International Court or Tribunal?"

Introducing a Dose of Reality:  Broadening the Perspective of Legal Ethics to Include Social Science Research

Andrew M. Perlman, A Behavioral Theory of Legal Ethics, 90 Ind. L.J. (forthcoming 2014), available at SSRN.

Andy Perlman’s timing couldn’t be better. His new article, A Behavioral Theory of Legal Ethics, comes out just as negative reports of lawyers’ conduct are front page news again, this time as part of the GM story. The company’s lawyers failed to save their business and engineering colleagues from disastrous decisions; in fact, their conduct may have hindered GM from addressing problems systemically. While corporation counsel generally are not the sole check on ethical and competent decision making by company insiders, they certainly are positioned structurally to a framework that is intended to lead to good decision making. But it is not just corporate lawyers who are an issue for ethical conduct, of course. Prosecutors’ failure to reveal exculpatory evidence is a continuing concern, tax lawyers’ gaming the tax shelter system is the topic of a new book by Mitt Regan and Tanina Rostain (Confidence Games), and there are many more examples.

What makes Perlman’s article so timely is not simply the focus on lawyers’ failed judgments but his connection of these to a fundamental problem with the theory underlying legal ethics. This connection provides a larger context for considering ethical failures, moving beyond the particular characteristics of an individual to a general framework that spans lawyers’ individual differences and practice settings. According to Perlman, the theoretical foundation of legal ethics assumes that lawyers “are simultaneously capable of partisanship on behalf of clients while remaining sufficiently objective to ensure that their own conduct is ethical.”(p.6) In fact, the Model Rules of Professional Conduct obligate both partisanship (“in the sense of being aligned with a particular side of a matter” (p.6)) (see, for example, Model Rules of Professional Conduct 1.2) and the ability to consider the consequences of being a partisan in the context of obligations owed to non-clients (see, for example, Model Rules of Professional Conduct, Preamble and Scope (“Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.“). Nevertheless, this tension has not been adequately explored, according to Perlman: “Rarely,” he writes, do legal ethicists “discuss[] … whether this assumption relies on an accurate model of human behavior.” (p.11) It is just such a disconnect that has been identified as underlying the failings of GM’s lawyers according to a New York Times report, which commented that It is not clear whether any of G.M.’s lawyers even recognized there was an issue with how they were representing the company. Nor is it clear that they considered whether they needed to take action to protect it from greater harm.”1 Continue reading "Introducing a Dose of Reality:  Broadening the Perspective of Legal Ethics to Include Social Science Research"

Patterns and Practices

These days, I think a lot about police torture.

To be more precise, these days I am wrestling with problems of how to “prove” police torture occurred. And that’s why I recently read Kim D. Chanbonpin’s article “Truth Stories: Credibility Determinations at the Illinois Torture Inquiry and Relief Commission.”

The question at the heart of the problem I am struggling with is straightforward enough: How can one evaluate a claim of police torture when the only source of the claim is the alleged victim and when the police and prosecutors categorically deny that anything occurred? Continue reading "Patterns and Practices"

Meaning, Intention, and Mental States

Lawrence B. Solum, Artificial Meaning, 89 Wash. L. Rev. 69 (2014), available at SSRN.

This is a provocative and important essay that has implications Solum doesn’t spell out for some positions on meaning, communication, statutory interpretation, and the understanding—sometimes called the “construction”—of statutory texts. Solum is interested in communicative content, principally of directives. Most of his examples are of legal directives, or as he prefers to describe them, legal rules.

Solum begins with an important distinction between communicative content, the kind of meaning he is interested in discussing, and legal meaning, the legal contribution a text makes in its particular legal system. It is not uncommon for discussion of statutory interpretation to conflate the two or to focus entirely on the latter, but this is a mistake. In some legal systems, such as in the United States, the communicative content of a statute can cause it to fail to make any legal contribution (because, for example, the statute is unconstitutional). So getting clear on communicative content is a prolegomena to getting clear on much of statutory interpretation. Solum aims to make a significant contribution to this task by illuminating the lack of connection between communicative content, intention, and the mental states of individual legislators. Continue reading "Meaning, Intention, and Mental States"

From Crowd-Sourcing to Crowd-Enforcing: An Empirical analysis of Threadless’s Community IP Norms

Empirical studies of creative communities continue to provide scholars and policymakers with useful evidence for assessing intellectual property regimes. In Seven Commandments, we find yet another excellent example of the type of evidence we need to know and, perhaps even more importantly, robust methods for gathering it.

The article reports on a study of Threadless, an online community that crowd-sources t-shirt designs. As with many such communities, it uses a combination of collaborative and competitive elements, allowing users to work together on certain projects while also competing with each other for approval, funding, and ultimately production and distribution of the designed apparel. The authors of the paper seek to study the IP norms of the Threadless community in order to understand what makes it succeed in terms of incentives to create. In particular, they note that because formal enforcement of copyright law is generally difficult if not impossible on such sites, normative systems are presumed to play the major role in protecting the investment of creators. Continue reading "From Crowd-Sourcing to Crowd-Enforcing: An Empirical analysis of Threadless’s Community IP Norms"

Recognition Without Consent

Erez Aloni, Deprivative Recognition, 61 UCLA L. Rev. 1276 (2014).

Relationship recognition has been at the center of reform efforts in family law for the last two decades. Scholars and advocates alike have focused intently on the need to provide recognition and support for a variety of relationships that the law has traditionally ignored. These include the relationships of not only same-sex couples, but also of cohabiting couples, nonmonogamous groupings, and friends. The reform proposals have assumed that legal recognition brings with it economic benefits.

In a fascinating new article, Erez Aloni questions this assumption by highlighting the interplay between two considerations: first, it is sometimes the case that nonrecognition of relationships can have financial benefits for their members; second, the state sometimes recognizes relationships in the absence of a request by either party—what Aloni labels “purely ascriptive recognition”—for the limited purpose of determining eligibility for particular benefits. In most cases of purely ascriptive recognition, if the combined income exceeds a certain amount, then the individuals become ineligible for the benefit in question. When the two considerations are brought together, we are left with forms of legal recognition that cause financial harm. Continue reading "Recognition Without Consent"

Getting Specific About the Financial Security Aspects of Health Insurance

Allison K. Hoffman, Health Care Spending and Financial Security After the Affordable Care Act, N.C.L. Rev. (forthcoming), available at SSRN.

Too often, discussions about health insurance coverage are one-dimensional, and focus solely on whether someone has coverage (good) or not (bad). Having health insurance coverage is undeniably a good thing and an important policy goal. However, as Professor Hoffman’s article points out, simply focusing on health insurance coverage, without examining the type of protection it provides, gives us an incomplete picture of an individual’s protection against health-related financial risks.

One of the primary goals of health insurance, after all, is to protect individuals from the financial insecurity that can result from medical spending. What is perhaps less obvious to the casual observer is that health insurance can provide very different levels of protection against financial insecurity depending on the plan’s premiums, cost-sharing structure, and coverage terms. In her article, Professor Hoffman first provides a taxonomy of the types of financial risk health insurance could attempt to reduce. She then uses stylized examples of three health insurance consumers to examine how various forms of post-ACA coverage provide financial security. Her examination leads to some surprising results. Continue reading "Getting Specific About the Financial Security Aspects of Health Insurance"

Empiricism and Equality: Studying Fathers’ Rights

Kelly A. Behre, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J.  Women & L. (forthcoming 2014), available at SSRN.

The fathers’ rights movement relies on the rhetoric of equality. Men, it seems, are discriminated against because the law has come under the sway of feminists. Feminists have prevailed upon the law to intrude in areas where the government has no business, such as the home. Moreover, feminists have convinced policy makers that there is an epidemic of domestic violence perpetrated by men upon women and that adult intimate partner violence should be considered in issues of custody of children. The correct view according to the fathers’ rights movement, is that true equality means gender-neutrality.

While discussions, critiques, and analysis of the equality rhetoric of the international fathers’ rights movements are not novel, Kelly Behre’s article, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, does – – – as the title promises – – – “dig beneath.” The article’s first section is an excellent overview of the equality narratives of the fathers’ rights movement, including the appeal to civil rights movements and the use of both discrimination and gender-neutral tropes. But the real contribution of Behre’s article is her exploration of the relationship between empiricism and equality. Continue reading "Empiricism and Equality: Studying Fathers’ Rights"

Don’t Restrict My E-book

Angela Daly, E-Book Monopolies and the Law, 18 Media & Arts L. Rev. 350 (2013), available at SSRN.

It’s still fashionable to point to the “cloud” as the solution to all sorts of problems in technology. But can such a shift disturb the carefully worked out compromises between different interests, which are embedded in legislation on topics such as competition and intellectual property?

Angela Daly, a research fellow at the Swinburne Institute of Technology (Australia) who is also about to complete a doctorate at the European University Institute (Florence, Italy), suggests that these clouds may bring little but rain. In her article, “E-book monopolies and the law”, published in the consistently topical Melbourne-based Media and Arts Law Review, she considers two particular features of e-book platforms and content: digital rights management, and competition. Continue reading "Don’t Restrict My E-book"

What Can Be Learned From the Wrongfully Accused?

Daniel Gilveber & Amy Farrell, Not Guilty: Are the Acquitted Innocent (2012).

One of the most frequently asked questions of criminal defense lawyers is some variation of “How can you represent someone you know is guilty?” Law students ask this question often as they explore vicariously the possibility of representing the criminally accused. I respond carefully. I try to take them back to my own experience and the immense pride (and yes, sometimes trepidation) I felt in assisting some of the most powerless and forgotten members of our society. I tell them the truth. The hardest cases were not those in which I thought that my client was guilty. Hardest were those cases in which I believed or suspected that my client was innocent. Those are the cases over which I lost the most sleep and worried that my own limitations and competencies as a lawyer would unfairly determine my client’s liberty. I worked tirelessly for acquittals in those cases (and others) but recall to this day that even acquittals could not make innocent criminal defendants “whole.” Acquittals were viewed by defense and prosecution attorneys alike as lucky windfalls. The acquitted defendant somehow evaded the “true verdict” of guilt. Rarely could acquitted defendants return to their former lives without the stain of having been accused. In other words, a defendant who was found “not guilty” was perceived as not entirely “innocent” either.

A close examination of verdicts of acquittal has been long overdue. This is precisely what Daniel Givelber and Amy Farrell bring to us in their new book Not Guilty: Are the Acquitted Innocent? In particular, they study the relationship between the acquittals and actual innocence. They begin with the notion that acquittals, like comedian Rodney Dangerfield, “get no respect.” Practitioners, scholars and the general public tend to assume that acquittals are based on misinformed or nullifying jurors or systemic failures allowing the guilty to go free. The authors observe that the law itself harbors a similar bias insofar as evidence of prior acquittals can be admitted in the adjudication of a new offense or to enhance a sentence in a new offense. Givelber and Farrell acknowledge that they can’t directly disprove these assumptions. (For instance how do we know whether an acquitting jury has nullified or genuinely believes that the defendant is not guilty of the charge?). Instead they analyze data from four hundred trials to determine how and whether the evidence in acquitted cases differs from or resembles the evidence in conviction cases. Continue reading "What Can Be Learned From the Wrongfully Accused?"

A New Theory of Insider Trading Law

Sung Hui Kim of the UCLA School of Law has developed a bold new theory of insider trading that is well worth reading. In The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption, Kim lays the foundation of her new theory, which she expands in Insider Trading as Private Corruption.

In arguing that members of Congress are fiduciaries for purposes of insider trading law, Kim joins a number of others scholars who have argued for the imposition of fiduciary duties on government officials. See, e.g., Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (2011); Ethan J. Leib et al., A Fiduciary Theory of Judging, 101 Calif. L. Rev. (2013); D. Theodore Rave, Politicians as Fiduciaries, 126 Harv. L. Rev. 671 (2013); Evan J. Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, 88 Tex. L. Rev. 441 (2010). I come to this literature as a skeptical reader. Having written extensively on fiduciary law, I am wary of scholarship that purports to extend fiduciary analysis into new domains, stretching the fiduciary concept beyond its analytical boundaries. In Last Temptation, therefore, I prepared myself for an arduous slog when I read that Professor Kim was arguing that the “majority view”—that “members of Congress are fiduciaries to no one” (P. 849)—was wrong (P. 852). Continue reading "A New Theory of Insider Trading Law"

Coming to a Better Understanding of Remedies

Samuel L. Bray, The Myth of the Mild Declaratory Judgment, 63 Duke L. J. 1091 (2014).

Remedies is a vital, yet sometimes overlooked, area of study and scholarship. So often with law, we gravitate toward the substantive fields—constitutional law, property, contracts, torts, and the like. In academic writing and course offerings, there is less of a tendency to step back and consider the commonalities between these subjects.

Remedies is trans-substantive almost by definition. It looks across all areas of law and asks, once a liability or right has been established, now what? Is the victim, be she of trespass or breach of contract or malpractice, entitled to damages? If so, how much? Should she receive an injunction or declaratory relief or both? The goal of the field is to better understand how it is that our legal system can and should make aggrieved parties whole. Sam Bray’s The Myth of the Mild Declaratory Judgment deftly brings us closer to that goal. Continue reading "Coming to a Better Understanding of Remedies"

Understanding Prophylactic Supreme Court Decisions

John F. Stinneford, The Illusory Eighth Amendment, 63 Am. U.L. Rev. 437 (2013).

It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford’s recent article, The Illusory Eighth Amendment. Despite its title, the most interesting part of Stinneford’s article is actually an analysis and critique of the Supreme Court’s famous decision in Miranda v. Arizona.

For those who neither study criminal procedure nor watch police procedurals, Miranda held that in the absence of a provable superior alternative: Continue reading "Understanding Prophylactic Supreme Court Decisions"

Program and Registration Information for “Legal Scholarship We Like and Why It Matters”

We’ve posted a draft program for our conference on “Legal Scholarship We Like and Why It Matters” and also have opened up a registration page for the conference.

We hope to see you Nov 7 & 8, 2014 at the University of Miami School of Law.

If you are planning on coming, you can take advantage of the UM rate at local hotels. The main conference hotel is the Sonesta in Coconut Grove, but the UM discount also applies to the other hotels on the list.

Rulemaking is Biased in Favor of Regulated Firms

Kimberly Krawiec has made a major contribution to the growing number of empirical studies that find that the notice and comment rulemaking process is systemically biased in favor of regulated firms. Professor Krawiec read all of the comments that were submitted in the rulemaking that led to the issuance of the Volcker rule—arguably the most important rule that has been issued to implement the Dodd-Frank Act—as well as all of the agency meeting logs that described the meetings that agency decision makers had with parties who were interested in the outcome of that proceeding.

Krawiec found that, while proponents of strict regulation of financial institutions dominated the comment process numerically, their comments were useless to decision makers. Proponents of strict regulation filed 7831 of the 8000 comments, but 7316 of those were identical brief form letters that provided no data or analysis that would be potentially useful to decision makers. The other 515 comments filed by proponents of strict regulation appeared to be drafted independently by individuals, but they too were worthless as potential aids to decision making. The comment that inspired the title of Krawiec’s article was typical of those comments: The commenter urged the agency to keep “big banks” from attempting to “screw joe the plummer,” with plumber misspelled. Continue reading "Rulemaking is Biased in Favor of Regulated Firms"

A Doctrine in Distress

Aaron D. Twerski & James A. Henderson, Fixing Failure to Warn, 90 Ind. L.J. (forthcoming, 2014), available at SSRN.

A major accomplishment of the American Law Institute’s 1998 Restatement Third of Torts: Products Liability project is its disaggregation of product defects into categories warranting distinct legal treatment: manufacturing (or construction) defects, design defects, and failure to warn. Indeed, this tripartite approach is at the core of the Restatement Third project, which was touted as “an almost total overhaul of Restatement Second as it concerns the liability of commercial sellers of products.”

It may then seem surprising that James Henderson and Aaron Twerski—joint reporters for the Restatement Third project—have second thoughts about the categories they so adeptly forged.

In “Fixing Failure to Warn,” Henderson and Twerski “now believe that too much has been made of the difference [between design defect and failure to warn]” and propose a simple, albeit powerful fix for a “doctrine in distress.” Namely, the former reporters would import the “reasonable alternative design” requirement from the design defect test into the realm of failure to warn, requiring plaintiff to propose a “reasonable alternative warning” in order to make out his prima facie case. Continue reading "A Doctrine in Distress"

(Re)Booting the Dismal Science

Thomas Piketty, Capital in the Twenty-First Century (2014).

French economist Thomas Piketty has published a lengthy tome on economics that, unusual for economics books, has become a best seller. That attention is for good cause. While not exactly a beach read, Capitalism in the Twenty-First Century is a potential game changer for what the study of economics entails and its consequence for future policies. The timing of the book is perfect because the fact of increasing economic inequality has become a topic of increasing focus among academics but also in public policy discussions more broadly. What has been lacking is a deep understanding of how this has come to happen and what might be done to reduce inequality. Picketty’s book moves the discussion forward by pointing to where inequality comes from, where it is going, what might be done to shift its momentum and direction and what might happen if nothing is done to alleviate ever increasing inequality.

In his Introduction, Piketty quotes Marx’s “Communist Manifest” for its prediction of the inevitability of revolution resulting from the internal contradiction of capitalism: “The development of Modern Industry, therefore, cuts from under its feet the very foundation on which the bourgeoisie produces and appropriates products. What the bourgeoisie therefore produces, above all, are its own gravediggers. Its fall and the victory of the proletariat are equally inevitable.” In less dramatic language, Piketty concludes that “the private rate of return on capital, r, can be significantly higher for long periods of time than the rate of growth of income and output, g. The inequality r>g implies that wealth accumulated in the past grows more rapidly than output and wages. . . . Once constituted, capital reproduces itself faster than output increases. The past devours the future.” His evidence supporting his conclusion that makes capitalism inherently unstable, at least in its present form, is his of study of a wide array of data from a number of countries from the 19th century up until the beginning of World War I and, beginning again after the end of World War II until today. During those prolonged periods, the net rate of economic growth in terms of output and wages was about 1% while the return on capital was always between 4 and 5%. Thus, wealth in terms of capital versus from labor increasingly is concentrated in the top 1% and, even more so, in the top .01%. Ever-expanding capital simply cannot be sustained in the long run because that would mean that labor loses all value. If the past is the prologue to the future, capitalism will at some point inevitably collapse if actions are not taken to reduce the growing value of capital. The period from the beginning of World War I through the end of the immediate post-World War II period demonstrated that the momentum toward ever increasing concentration of wealth can be stopped. During that disastrous period of the 20th century, there was a substantial shift as capital shrank due to the destruction of the two great wars, the Great Depression, the end of European colonization and a policy shift toward the creation of a middle class. As a result economic inequality decreased significantly until after World War II. Much economic theory assumed that this period was the new normal, but, for Piketty, the experience since 1970 onward shows that the old normal has reasserted itself so that economic inequality will continue to grow unless substantial efforts are undertaken to change the policies that underpin the growing power of capital over labor. Continue reading "(Re)Booting the Dismal Science"

The Return of Capital

Thomas Piketty, Capital in the Twenty-First Century (2014).

If I had nothing more specific in mind, it would verge on being trite–or perhaps achieve triteness with margin to spare–to identify Thomas Piketty’s Capital in the Twenty-First Century as a 2014 publication worth noting at Jotwell. At least as of early spring, the reviews–predictably laudatory from the left, and cautious or critical from the right–have been sprouting like dandelions in Central Park, and there have also been regular (indeed, almost daily) features about Piketty and his opus, appearing in periodicals of all kinds. Most readers no doubt already know that Piketty has combined a compilation of groundbreaking empirical research about wealth distribution in multiple countries over the last few centuries with an important and provocative thesis about the likely (or at least a possible) future.

Piketty argues that high-end wealth concentration has a tendency to keep on augmenting itself in modern capitalist societies, at least for an indefinite time. He views the mid-twentieth century’s “Great Easing” of this process as reflecting distinctive and anomalous factors that make it unlikely to be repeated. He attributes it mainly to the era’s enormous shocks–in particular, the Great Depression and two calamitous world wars–and secondarily to the pursuit of economic and regulatory policies that deliberately sacrificed neoclassical market efficiency in pursuit of other objectives, or else in response to concerns about market failure that came to be dismissed with the rise of such political leaders as Ronald Reagan and Margaret Thatcher. Continue reading "The Return of Capital"

Trusts and Estates Law and the Question of Wealth Distribution

Early in the introduction to his arresting new book on wealth distribution, the French economist Thomas Piketty asserts that “the distribution of wealth is too important an issue to be left to economists, sociologists, historians, and philosophers.” (P. 2.) “Everyone,” he writes, should be interested. It seems to me that, on the issue of wealth distribution, trusts and estates scholars should be at or near the front of the queue. In any event, that is my excuse for choosing a book on economics as a JOTWELL selection for trusts and estates.

In the short time the English translation of Capital in the Twenty-First Century has been available (March, 2014), Piketty has achieved near rock-star status. The hard-copy version of the book, which runs 577 pages excluding the footnotes, is sold out on Amazon as I write this. It has been reviewed by all the major newspapers, discussed in all the business and academic journals, and debated across the blogs, and its themes have been batted around by commentators of all stripes. The New York Times, not content to restrict discussion of the splash the book is making to its opinion pages, recently featured Piketty in its Sunday Styles section. Reviews, references, debates and interviews continue. All of which seems to indicate that at least the chattering and scribbling classes, if not the public at large, are rather intrigued by the themes offered by the book. Continue reading "Trusts and Estates Law and the Question of Wealth Distribution"

Thomas Piketty’s Book Is Masterful and Important, but Ultimately a Sideshow

Thomas Piketty, Capital in the Twenty-First Century (2014).

By now, it seems that everyone has heard of the new tome from French economist Thomas Piketty. Capital in the Twenty-First Century continues to top The New York Times Bestseller list for hardcover non-fiction, which hardly seemed likely for a book that is mostly built on an analysis of European and American tax records over the last century or two.

Piketty’s book deserves all of the plaudits that it has received. It is a masterpiece of economic analysis, advancing our understanding of wealth concentration in the world’s richest democracies, and offering a provocative forecast of the future of inequality in the U.S. and elsewhere. Even the most trenchant reviews of the book that take a negative tone, such as the economist James K. Galbraith’s essay in Dissent, rightly conclude that Piketty has made an important contribution to knowledge. Continue reading "Thomas Piketty’s Book Is Masterful and Important, but Ultimately a Sideshow"

Forewarned is Forearmed: Anticipating Big Changes for the Legal Profession

I don’t know about you, but I am sucker for technology and “Big Data” stories. I was glued in front of my television when IBM’s Watson took on Jeopardy’s reigning champion Ken Jennings–and won.  I am interested in the work of scholars such as Dan Katz and initiatives such as ReInvent Law™ and LawWithoutWalls.™  When NPR and the New York Times ran stories about how technology may do a better job than lawyers for certain tasks such as e-discovery, I emailed those stories to friends and colleagues. My ears perk up when I read about the coming “disruption” to the legal profession. I often recommend to others Richard Susskind’s book entitled The End of Lawyers? about the impact of technology on legal services.

Regardless of whether you share my fascination for these kinds of topics, I encourage you to read the article entitled The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services which Professors John McGinnis and Russ Pearce contributed to the Fordham Colloquium on The Legal Profession’s Monopoly on the Practice of Law. In my view, regardless of one’s field of expertise, everyone should read this article and begin to reflect on this phenomenon that will revolutionize the practice of law, and dramatically change all of our lives. Continue reading "Forewarned is Forearmed: Anticipating Big Changes for the Legal Profession"

In Plain View

Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999 (2014).

In this tightly argued and thoroughly engaging article, Gregory Ablavsky makes the case for a revisionist history of the U.S. Constitution that places Native American Indians at its center. While it isn’t hard to show that conventional constitutional histories largely neglect Indians, it isn’t easy to prove that such neglect is not benign. That is, it’s one thing to argue that standard accounts should include a discussion of Indians, but it’s another thing entirely to make a convincing case that core constitutional understandings would be fundamentally altered if historians fully and prominently integrated the history of relations with Indians into their narratives of the Constitution. Ablavsky aims for the latter, arguing that the history of the creation, drafting, and ratification of the Constitution should be rewritten with Indians in a leading role—and he does not miss the mark.

Ablavsky shows how concern over the problem of persistently hostile relations with Indians during the founding era informed James Madison’s and Alexander Hamilton’s competing Federalist arguments for a stronger central government. This isn’t a modest proposal that we pause for a moment to consider how events on the periphery might shed some light on constitutional debates at the center. Rather, Ablavsky tells us that there is nothing at all peripheral about the frontier when it comes to founding-era debates about constitutional design. The problem of Indian relations, he argues, was central not only for settlers, but for the likes of Madison and Hamilton, and for their fellow delegates and the ratifying public, as they debated the best form of government for the nation they were building. Contesting views on how to solve that problem substantially contributed to shaping the visions they articulated for a more perfect Union, in ways constitutional historians have yet to recognize. Continue reading "In Plain View"

Desegregating the Heart

In her new book, According to Our Hearts, Rhinelander v. Rhinelander and the Law of the Interracial Family, Angela Onwuachi-Willig brilliantly deconstructs and challenges the norm of the monoracial family — the idea that “normal” families are and indeed should be produced by heterosexual single-race couples. As Onwuachi-Willig explains, this norm fundamentally shapes American legal and social relations, including marriage and family formation. The social and legal challenges created by the norm of the monoracial family have long been a theme of Onwuachi-Willig’s work,1 but According to Our Hearts charts new territory by more clearly demonstrating the connection between racial formation and family formation. As a consequence, the book is destined to find fans among family law scholars, race discrimination scholars, and even lay readers interested in better understanding the role family connections play in triggering race discrimination.

Onwuachi-Willig uses the tragic love story of Alice Jones and Leonard “Kip” Rhinelander as a window into three key themes that she believes continue to inform discussions of the multiracial family today. The first theme, “interraciality,” allows us to explore the role that cross-racial family relationships play in triggering race discrimination. She argues that the study of race discrimination has largely neglected discrimination’s relational component. This relational component posits that discrimination may be triggered by others’ concerns about cross-racial intimate contact or family relations, rather than a single individual’s apparent racial status. The second theme is an examination of the fluid nature of racial identity in multiracial family units. Onwuachi-Willig explores the questions of power that emerge when the individual’s interest in defining her racial identity is juxtaposed against the competing interests of family members, the community, and the state. The book’s third, and perhaps most important theme is the racial hierarchy that exists between various types of interracial families, with black-white unions being the most disfavored. Onwuachi-Willig bravely takes on this hierarchy and deftly illuminates the hierarchy’s material and social consequences. Specifically, she suggests that the special disfavor saved for black-white marriages, particularly those involving black women and white men, ensures that wealth does not easily transfer through marriage and inheritance from white hands into black ones. Continue reading "Desegregating the Heart"

A Legal Beagle’s Voyage

Nicholas A. Robinson, Evolved Norms: A Canon for the Anthropocene, in Rule of Law for Nature 46-71 (Christina Voigt ed. 2014).

Environmental law strives to improve the relation of Homo sapiens to the ecosystems that support human life and all other life on earth. Ever since Darwin we have known that just as each species affects its environment, the environment pushes back, exerting selective pressure in favor of adaptive variations. Evolution is the long-run product of ecology. At its best, environmental law puts this understanding to work in the service of people and nature. And yet, Professor Nicholas Robinson observes, the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law.

In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant. Continue reading "A Legal Beagle’s Voyage"

Are Patent Damages Uncertain?

Michael Mazzeo, Jonathan Hillel, & Samantha Zyontz, Explaining the “Unpredictable”: An Empirical Analysis of Patent Infringement Awards, 35 Int’l Rev. of L. & Econ. 58 (2013).

A recent American Bar Association “Corporate Counsel” seminar styled itself as “The Uncertain Arena: Claims for Damages and Injunctive Relief in the Unpredictable World of IP Litigation.” The seminar began by recounting the seemingly surprising, $1 billion-plus damage awards in the patent infringement actions, Carnegie Mellon v. Marvell Technology, Apple v. Samsung, and Monsanto v. DuPont. These blockbuster awards stand in stark contrast to the usual awards of $20 million or less in a typical case.

By and large, in-house counsel have chalked up much of these differences to the luck of the draw. Such a sentiment is all-too-common not only among practitioners, but also among policymakers and academics. No less than the eminent IP scholar Mark Lemley has remarked, “Patent damages are unpredictable because the criteria most commonly used are imprecise and difficult to apply.”

Mazzeo, Hillel, and Zyontz make an impressive contribution to the literature by casting substantial doubt on such views. Specifically, in their recent empirical study of district court patent infringement judgments between 1995 and 2008, they show that patent damages can be explained in a large part by a fairly small number of patent-, litigant-, and court-related factors. Continue reading "Are Patent Damages Uncertain?"

Against Equality

There appears to be a certain irony in writing in the Equality Section about a book produced by a group called “Against Equality”. But while their name may initially create an image of a reactionary conservative group trying to stem the tide of progressive social change, their agenda is to highlight and critique the inherent conservatism of the apparently liberal “gay rights” claims of equal marriage, equal military service, and equal protection under the law in the form of hate crime statutes. There is a great deal of feminist and queer scholarship making similar points but it has been too easy for gay rights campaigning groups, such as the deeply conservative Human Rights Campaign in the US, to by-pass any real engagement with this scholarship, much of which is inaccessible to the general public due to expensive paywalls. With this anthology, which includes both activist and academic writers, the Against Equality collective seeks to “be sure that our voices of resistance are not erased and written out of history“.

The anthology brings together three books, previously self-published: Against Equality: Queer Critiques of Gay Marriage (2010); Against Equality: Don’t Ask to Fight Their Wars (2011); and Against Equality: Prisons Will Not Protect You (2012). In each volume Conrad brings together a diverse collection of essays drawn from a variety of sources from zines, to blogs, to Facebook posts, and journal articles. Some of these contributions would already be familiar to an academic audience, others may not be, but all are interesting and impassioned refutations of a liberal reformist agenda that fails to properly challenge the underlying economic as well as gender, race, and class power structures. Continue reading "Against Equality"

Can Information Technology Save Health Care?

Nicolas P. Terry, Information Technology’s Failure to Disrupt Health Care, 13 Nev. L.J. 722 (2013).

The massive stimulus bill of 2009 included the HITECH Act, by which Congress pledged roughly $30 billion to encourage providers to adopt electronic health records and other health information technologies (HIT). The bill cited a long list of familiar but elusive policy goals—improve health care quality, reduce medical errors, reduce health disparities, control costs, reduce inefficiencies, improve public health, promote competition, increase consumer choice. If the health policy literature had a fantasy genre, the HITECH Act solving our health system’s problems through a new nationwide HIT infrastructure would feature prominently.

But a few years later, as Nicolas Terry observes, and “HIT still appears to be a large rock that only a few dedicated converts are pushing up a steep and expensive hill.” Why is that? Why wouldn’t our lumbering, dysfunctional, and fantastically expensive health care system be transformed by information technology like so many other industries? Doesn’t our health care system practically beg for the efficiencies of information technology? Terry’s article, Information Technology’s Failure to Disrupt Health Care, tries to answer these questions. Continue reading "Can Information Technology Save Health Care?"

Violence, Yearning, and Hope

If you seek inspiration in these times of debilitating negativity toward the law and lawyers, read Gilbert King’s Devil in the Grove. A student who represents the best in the law’s future gave me the book. The gift was far greater than the bound pages or the pleasure of an engrossing weekend. It was a renewal of awe at what the law and lawyers can do to rescue people and change hardened minds and hearts in atmospheres of fear, loathing, and violence.

After Devil in the Grove has inspired you with its excellent history of our recent past, I recommend reading works by two outstanding junior scholars, Allegra M. McLeod and Daniel I. Morales, who are imagining our future. What I love about all three works are the accounts of how law can save as well as destroy and the lessons about how to change mindsets, not just the laws on the books. Continue reading "Violence, Yearning, and Hope"

Discovery and Democracy

Gillian K. Hadfield & Dan Ryan, Democracy, Courts and the Information Order, 54 European J. of Sociology 67 (2013), available at SSRN.

Discovery has a bad name, and the reason for that is something of a mystery. It certainly isn’t careful empirical evidence. Decades of research have consistently demonstrated that discovery is used appropriately and that in the vast majority of cases its costs are proportionate to the stakes in the lawsuit. Most recently, the Federal Judicial Center’s 2009 study of thousands of closed cases (chosen to maximize the likelihood of discovery) found that at the median, the reported costs of discovery, including attorney’s fees, was just 1.6% of stakes of the case for plaintiffs and only 3.3% for defendants. Discovery’s benefits are harder to quantify, but mutual access to relevant information surely leads to case outcomes that more accurately reflect legal norms. Yet the Advisory Committee on the Civil Rules is once again proposing rule amendments that would limit discovery.

The public discovery debate focuses almost entirely on the instrumental value of discovery to litigants. There are, however, other significant reasons for using the power of courts to compel information exchange. Judicial process as process is crucial to the legitimacy of the legal system because citizens must perceive it to be trustworthy and fair. Hadfield and Ryan’s Democracy, Courts, and the Information Order articulates how the discovery process is fundamental to American democracy: civil courts serve as a place where litigants are formally treated as equals in their ability to demand the sharing of relevant information, even from entities with far more political or economic power in society. The experience of participating in the discovery process is thus part of the “phenomenology of democracy”– the lived experience of being treated as an equal among equals. (P. 88-89.) Continue reading "Discovery and Democracy"

Drama and Consequence in Accounting Standards Choice (Seriously)

The value of interdisciplinary work is on display in this article by two Dutch policy scholars: the subject matter is accounting rules for financial instruments, but it spans public policy and regulation in a way that is also of interest to scholars of law and regulation. (Full disclosure: I am an editor of Regulation & Governance, though I was not involved in this article’s editorial process.)

Mügge and Stellinga discuss the choice between the two main accounting standards (fair value accounting, or FVA, and historical cost accounting, or HCA), across three policy-making moments between 1997 and 2013, in terms of two dominant explanatory theories for policy change—neither of which turns out to be convincing. What emerges is a sense of how accounting regulators, specifically the EU’s Accounting and Regulatory Committee (ARC), put in place unstable sets of accounting standards for financial instruments that were neither exactly what banks wanted, nor what the International Accounting Standards Board (IASB) as standard-setter wanted. Nor is this simply a case of a regulator ‘splitting the baby’ between competing interest groups. Continue reading "Drama and Consequence in Accounting Standards Choice (Seriously)"

The Battle Between Law and War

Deborah N. Pearlstein, Law at the End of War, 99 Minn. L. Rev. — (forthcoming 2014), available at SSRN.

The United States has formally fought a “war on terror” since 9/11, but a key question is whether it will ever end. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), for example, the U.S. Supreme Court essentially pronounced that enemy combatants in Guantanamo could be held for the “duration of hostilities.” It is not clear, however, when that will occur, especially since the war is principally against a non-state group, Al Qaeda, bent on terrorizing the U.S. for as long as the group survives. As Professor Deborah Pearlstein shows in her important new article, Law at the End of War, U.S. Supreme Court decisions contain language that has been interpreted to mean that when a war ends is a political question. Marshaling U.S. Supreme Court precedents, international law, the related law of armed conflict, and public policy interests, Pearlstein argues persuasively to the contrary.

One of Pearlstein’s central arguments is that the judiciary has long been willing to decide when a war has ceased. These determinations have major legal consequences, since war triggers the applicability of important statutes and conventions. For example, she counters conventional views regarding The Prize Cases, 67 U.S. 635 (1863), where the question was whether President Lincoln had the “right” to impose a naval blockade on southern ports after the Confederacy attacked Fort Sumter in 1861. While the Court said it “must be governed by the decisions and acts of the political department of the Government” on the question of “what degree of force the crisis demands,” she convincingly asserts that this simply means Lincoln had the power to decide to shoot back. The Court did not exclude itself from deciding whether war existed in light of the President’s actions. Indeed, the Court rejected executive branch arguments that it must abstain from such assessments, as a matter of international law, unless Congress formally declared war. Continue reading "The Battle Between Law and War"

Unifying the Not-So-Unitary Executive

Jason Marisam, The President’s Agency Selection Powers, 65 Admin. L. Rev. 821 (2013), available at SSRN.

Jason Marisam’s recent article on what he calls presidential “agency selection powers,” The President’s Agency Selection Powers, 65 Admin. L. Rev. 821 (2013), provides new insight into a president’s capacity to shape regulatory policy even without relying on a so-called “unitary executive” reading of the Constitution.

Should a history of arcane legal debates ever be written, perhaps authors will mark the so-called “unitary executive” debate as one of the strangest. Technically, the controversy centers on whether the President is constitutionally entitled to dictate how all other executive branch officials exercise whatever discretionary functions are vested in them by statute. I have argued that the Constitution embodies no such principle.1 On the other hand, scholars as otherwise unalike as Steve Calabresi and Cass Sunstein have urged—on originalist and nonoriginalist grounds, respectively—to the contrary.

This sounds like a big deal, and it is—in principle. But the main significance of the doctrine is primarily its potential impact on the ethos of executive power. If the small-“u” unitarians are right, then executive officers are likely to attend as diligently to the president’s policy preferences as they do the laws enacted by Congress. In contrast, my negative response to the question is intended as an institutionally potent reminder that much of what the executive is allowed to do is entirely at Congress’s sufferance. Administrative power under this view ought to be exercised in a conscientious, well-reasoned way, as attentive to law as to politics. Any Administration’s view of the “unitary executive” theory is likely to be an important mood-setting device for governance, pointing in one direction or the other. Continue reading "Unifying the Not-So-Unitary Executive"

On Managerial Justice and the Anti-Discrimination Project

Nancy Gertner, The Judicial Repeal of the Johnson/Kennedy Administration’s ‘Signature’ Achievement (forthcoming, 2014), available at SSRN.

The extensive research showing that employment discrimination plaintiffs fare significantly worse than plaintiffs in other kinds of cases in federal court at every possible stage of litigation is well known at this point. Scholars like Ted Eisenberg, Kevin Clermont, and Stewart Schwab have thoroughly documented the disparity. Building from this work, other scholars have focused on why employment discrimination cases are different. Some have chalked the change up to changes in employer behavior, labeling current forms of discrimination “subtle” rather than “overt.” Others have mapped doctrinal drift between the goals of the statutes when they were initially enacted and their current applications. Still others have linked the drift and plaintiffs’ disproportional losses to the liberal use of summary judgment and the change in rules to pleading standards under Twombly and Iqbal. Most scholars are able only to theorize on the causes as they document these changes, but Nancy Gertner, a Professor of Practice at Harvard and former United States District Court Judge, has offered important new insights on why it is that employment discrimination cases fare worse than other kinds of cases.

Judge Gertner’s most recent article on the subject is The Judicial Repeal of the Johnson/Kennedy Administration’s Signature Achievement. In it, she identifies five potential causes of this phenomenon: 1) judges may believe that discrimination doesn’t exist anymore; 2) more discrimination cases are frivolous; 3) good cases are taken to state courts because state law is less employer friendly; 4) the Supreme Court has narrowed the law in a way that protects employers; and 5) the pressures on judges create and perpetuate biases against these cases. Based on her own experiences and others’ studies of judicial decisions, Gertner concludes that ideology, particularly as communicated by the Supreme Court in its decisions, plays some role, but that the greatest cause of the disparity is the pressure on judges to manage their caseloads and the ways that the effects of those pressures magnify the ideological factors. Continue reading "On Managerial Justice and the Anti-Discrimination Project"

Navigating the Complexities of Assisted Reproductive Technology

Kristine S. Knaplund, Assisted Reproductive Technology: The Legal Issues, Prob. & Prop. Mag., Mar./Apr. 2014, at 48.

Kris Knaplund is one of the leading American scholars in the area of postmortem conception and its theoretical and doctrinal implications for the field of inheritance law. In her article, Assisted Reproductive Technology: The Legal Issues, Knaplund lays out the complex planning issues that arise in a variety of scenarios involving Alternative or Assisted Reproductive Technology (ART). This clear and succinct article is a must read for professors, practitioners and students alike. Knaplund educates readers about the increasing number of situations and clients that involve ART, ranging from a trust beneficiary who is planning to use a gestational surrogate to a hospital faced with the widow of a recently deceased man who wants to harvest his sperm to have future children.

Knaplund begins by defining assisted reproductive technology as “the handling of gametes (sperm or ova) outside the human body in order to achieve a pregnancy.” She notes that the three most common forms of ART are assisted insemination, in vitro fertilization, and gestational carriers. She then proceeds to illustrate the kind of legal issues that attach to each of the three forms. For example, in assisted insemination (more commonly known as artificial insemination) the sperm donor is typically not the legal father if the sperm has been given to a licensed physician. But if a donor dispenses with the physician and donates directly to the intended mother, the statutory safe harbor no longer applies. Knaplund outlines several state cases including Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Ct. App. 1986) where that scenario results in the sperm donor being declared the resulting child’s legal father. Continue reading "Navigating the Complexities of Assisted Reproductive Technology"

Do No Harm: Misdiagnosing Informed Consent

Erin L. Sheley, Rethinking Injury: The Case of Informed Consent, BYU L. Rev (forthcoming), available at SSRN.

For quite some time, the large majority of informed consent cases have been handled under a negligence rubric, the central issue being whether the physician’s disclosure of risks to the patient was reasonable, as measured either by the reasonable patient standard, or in some jurisdictions, the standard of the profession. The battery cause of action has now been relegated to a minor role. It only surfaces in cases in which the physician does not simply fail to give adequate information about the costs and benefits of an agreed-upon procedure, but has completely failed to secure the patient’s consent, for example, by operating on another body part or performing a tubal ligation following a C-section. The battery claim is so marginalized that the A.L.I., in the Restatement (Third) of Intentional Torts to Persons, is currently debating whether to limit the scope of battery/informed consent claims even further, perhaps requiring the patient to prove that her doctor knowingly exceeded her consent before allowing recovery for battery.

Going against the grain, Erin Sheley’s new article argues that the negligence framing of informed consent claims loses sight of the dignitary aspects of the claim that the battery cause of action captured so well. This overreliance on the negligence framing of consent claims creates “a class of factually injured patients who have no remedy under current law.” Sheley starts with an example of a breast cancer patient who was under the impression that she was to receive a biopsy on a lump in her breast. However, when the physician determined that her tumor was malignant, he decided to go ahead and perform a mastectomy in an effort to stop the cancer from spreading. Putting aside whether such a patient might possibly recover for battery under the current restrictions, Sheley argues that the patient in such a case has suffered a real injury, even if it turns out the physician made the right call from a medical point of view. The problem with proceeding under the negligence theory is that the plaintiff’s claim will likely fail because she cannot prove that she suffered a physical injury, a necessary element of a negligence claim predicated on lack of informed consent. Continue reading "Do No Harm: Misdiagnosing Informed Consent"

A Lawyer with a Candlestick in the Conservatory: The Perpetuities Whodunnit

Grayson M.P. McCouch, Who Killed the Rule Against Perpetuities?, 40 Pepp. L. Rev. 1291 (2013).

Ding, dong, the Rule Against Perpetuities is dead. Well, in about half of all states. No longer must property interests vest within “lives in being plus twenty-one years.”  Wealthy individuals can put their money in trust forever. Even better, when that trust is created in a state without an income tax, and the trust assets never become included in the estate of a beneficiary, assets transferred to a perpetual trust remain … perpetually tax-free. What is the explanation behind the rush among states to repeal the RAP, beginning in the mid-1990’s? Professors Robert Sitkoff and Max Schanzenbach, among others, have pointed to the generation-skipping transfer tax as the engine driving repeal. Other theories include settlors’ desires for post-mortem control or creditor protection for beneficiaries. Enter into the conversation Grayson M.P. McCouch with his concise and well-written article, Who Killed the Rule Against Perpetuities? McCouch argues that the repeal of RAP is as much the work of bankers and lawyers as it is of any tax law.

McCouch begins his essay by looking at the use of perpetual trusts before and after the enactment of the generation-skipping transfer tax (and its $1 million exemption) in 1986. Prior to 1986, it was possible to create a perpetual trust in Delaware, Wisconsin and Idaho, albeit via different mechanisms or legal exceptions. Yet those states did not have a lion’s share of the trust business, which McCouch attributes to settlors’ ability to achieve objectives within the perpetuities period of their chosen local jurisdiction and a sense that the tax benefits of creating a trust in Delaware, Wisconsin or Idaho were “incremental” at best. After 1986, the generation-skipping transfer tax inspired a search for ways to avoid technical problems that could arise even in the existing perpetual jurisdictions. (McCouch explains the “Delaware tax trap” problem with such clarity and elegance that the article is worth reading for that single paragraph alone.) Continue reading "A Lawyer with a Candlestick in the Conservatory: The Perpetuities Whodunnit"

Law in the Conquest of L.A.

Law and conquest are deeply intertwined phenomena. We typically think of conquest as the physically violent and genocidal subjugation of people. But as a process, conquest involves the subjugation of both people and space and the reorganization of people within space. Conquest can only be consolidated, as Chief Justice John Marshall explained in Johnson v. M’Intosh (1823), when it generates new sovereignal claims and legal rights. Law, however, is not merely a consequence of conquest, it is also a constitutive element of it. The re-organization of space depends upon and generates ideas about how people relate to one another within that space, as well as ideas about how space can be owned and used, by whom, and to what purposes.

In Before L.A., David Torres-Rouff explores how Spanish, Mexican, and American migrants conquered Los Angeles by tracing “an interdependent, mutually constitutive relationship between race and space.” (P. 13.) Drawing on critical geography, which draws links between the built environment and social relationships, Torres-Rouff explains how, “In much the same way that race making leads to the formation of new individual and collective identities, place making leads to the transformation of previously neutral spaces into places with particular meanings that contain their own individual and differentiated identities.” (P. 11.) More specifically, he uses this interdependent relationship between race and space to demonstrate how local contests for power over land, labor, and water were integral to the construction of race in early Los Angeles. Continue reading "Law in the Conquest of L.A."

The Substantive Criteria Underlying Birthright Citizenship

D. Carolina Núñez, Beyond Blood and Borders: Finding Meaning in Birthright Citizenship, 78 Brooklyn L. Rev. 835 (2013).

The Fourteenth Amendment of the United States Constitution grants birthright citizenship to all individuals born within the territory of the United States, with an exception for the children of diplomats. Consequently, the children of unauthorized migrants born in the United States are United States citizens. A number of individuals, including members of Congress, contend that birthright citizenship serves as an incentive for unauthorized migration. As recently as January 3, 2013, the House of Representatives considered a bill that would limit constitutional birthright citizenship to the children of U.S. citizens, lawful permanent residents, and noncitizens serving in the armed forces. Carolina Núñez’s article makes an important contribution to this debate, and to the academic literature on citizenship and membership more broadly, because it offers substantive criteria for determining who should have birthright citizenship in the United States and because it analyzes a variety of proxies for measuring these substantive criteria.

Through an examination of post-American-Revolution cases and the congressional debates for the Fourteenth Amendment, Núñez identifies three substantive factors that have been critical in making membership decisions: mutuality of obligation, community ties, and community preservation. Núñez introduces three models of membership utilized in U.S. law (the territorial model, the status-based model, and the post-territorial model) and assesses each model’s ability to effectively measure the substantive criteria. She concludes that the use of “inaccurate proxies are unavoidable” when assigning birthright citizenship, but that the territorial model offers the most accurate proxy. (P. 857.) Continue reading "The Substantive Criteria Underlying Birthright Citizenship"

Treating Natural Law as Law

Jeremy Waldron, What is Natural Law Like?, N.Y.U. Working Paper Series (2012), available at SSRN.

Seldom do I come across a jurisprudence article that uses a simple shift in framing to place an old topic in a completely new light. “What is Natural Law Like?” by Jeremy Waldron prompted questions about natural law that had not occurred to me in two decades of following the subject. The standard ways of discussing the topic cover the natural law tradition, starting with Aquinas and moving to the present; take up what qualifies a theory as “natural law,” usually a claim of objective principles; elaborate on the debate between natural law and legal positivism; and lay out the positions of various “natural law” theorists, including John Finnis, Ronald Dworkin, and others.1 Much of this territory is familiar and well-worn.

Waldron starts with a standard question, “what is a law of nature?”, but immediately adds a twist by positing, “we should expect natural law to be law-like. It should be like law.”2  This seems innocuous as he states it, but it quickly produces unusual implications. Continue reading "Treating Natural Law as Law"

The Forgotten Promise of Professionalism

Sida Liu, Lily Liang, & Terence C. Halliday, The Trial of Li Zhuang: Chinese Lawyers’ Collective Action Against Populism, 1 Asian J.L. & Soc’y (forthcoming 2014), available at SSRN.

Perhaps all the lawyer jokes are not such bad a thing.1 Rather than trying to make lawyers more appealing, we ought to protect the profession from the sometimes-inevitable popular resentment. By telling the shocking story of defense attorney Li Zhuang’s prosecution in China, Sida Liu, Lily Liang, and Terence Halliday remind us of the power of professionalism and the need, at times, to resist both government pressure and public anger at lawyers.

In America, we are living through a time of radical change in the profession and in professional education. The market seems, in many ways, to be winning out. The concept of professionalism is assuming a sort of hazy anachronistic aura. Some scholars even declare the notion defunct and celebrate its demise.2 While the profession has always experienced itself in a state of crisis, the suggestion that we abandon the notion of an independent legal profession is relatively new.3 Perhaps it is changes within the profession, such as its growing size and competitiveness, which have led to the decline in professionalism. Broader cultural trends toward consumerism and away from collective approaches to social problems must also contribute to this shift. If we accept the general momentum, the question remains whether to embrace or resist it. Continue reading "The Forgotten Promise of Professionalism"

LGBTA: Asexuality Becomes a Movement

Elizabeth F. Emens, Compulsory Sexuality, 66 Stan. L. Rev. 303 (2014)

Fourteen years ago, Kenji Yoshino observed that the terms “heterosexual” and “homosexual” were commonly used “as mutually exclusive, cumulatively exhaustive categories”—a usage that casually implied that “bisexuals” and “asexuals” did not exist. In this well-known article in the Stanford Law Review,1 Yoshino methodically examined the ways that straights and gays have conspired to “erase” bisexuals. But while he acknowledged that “asexuals are, if anything, more likely than bisexuals to be erased in sexuality discourse,” he regretfully decided “not to attempt a systematic discussion of asexuals in this article.” In light of the “undertheorized divergences between bisexuality and asexuality,” he concluded “that the two topics deserve separate analysis.”

Under the circumstances, it is especially fitting that the Stanford Law Review has published the first law review article on asexuality. In Compulsory Sexuality, Emens demonstrates the payoff of giving asexuality its analytical due. After briefly describing asexuality’s emergence in several discourses, she turns her eye toward the questions of theory and law posed by the rise of this new identity movement. Continue reading "LGBTA: Asexuality Becomes a Movement"

It is Not Open Season on Men

“Why should women live in anticipatory dread and hypervigilence?” Elizabeth Sheehy writes in the concluding chapter of her important new book Defending Battered Women on Trial: Lessons from the Transcripts. Instead, she argues, the legal system should “shift the risk of death to those men whose aggressions have created such dehumanizing fear in their female partners”.

In Defending Battered Women on Trial: Lessons from the Transcripts, Sheehy offers a compelling and startling account of the criminal justice system’s failure to protect women from the men who batter them. She begins the book by situating the issue in its historical legal context. Making the work accessible to an audience much broader than just those well-versed in criminal law, Sheehy provides the reader with ample background to understand the legal context in Canada both prior to and in the years following the Supreme Court of Canada’s 1990 recognition of battered women syndrome in R. v Lavallee. Continue reading "It is Not Open Season on Men"

Intermediary Trademark Liability: A Comparative Lens

Graeme B. Dinwoodie, Secondary Liability for Online Trademark Infringement: The International Landscape, 36 Colum. J.L. & Arts (forthcoming 2014), available at SSRN.

Although we live in a global, interconnected world, legal scholarship – even scholarship about the Internet – often focuses on domestic law with little more than a nod to developments in other jurisdictions.  That’s not necessarily a bad thing; after all, theoretically robust or historically thorough works can rarely achieve their goals while surveying the landscape across multiple countries with disparate traditions and laws.  But as a student of U.S. law, I appreciate articles that explain how other legal systems are addressing issues that perplex or divide our scholars and courts.  Given the tumult over intermediary liability in recent years, comparative commentary on that topic has special salience.

In this brief (draft) article, Graeme Dinwoodie explores both structural and substantive differences in how the United States and Europe approach intermediary trademark liability in the Internet context.  To an outsider, the European web of private agreements, Community Directives, CJEU opinions, and sundry domestic laws can appear daunting and sometimes self-contradictory.  Dinwoodie puts them all into context, offering a coherent explanation of the interaction between Community law, member state law, and private ordering, and situating the overall picture within a broad normative framework.  And he contrasts that picture with the one emerging through common law in the United States.  The result is a readable, informative study of two related but distinct approaches to intermediary trademark law. Continue reading "Intermediary Trademark Liability: A Comparative Lens"

The Public-Private Enforcement Regime: Does the False Claims Act Work?

Pharmaceutical companies represent the poster-child defendant for whether public-private enforcement works. While subject to FDA prosecution for violation of the Food Drug Cosmetic Act, they more often face qui tam suits by private relators, usually but not exclusively for off-label promotion. DOJ may or may not choose to intervene, but if it does jump in, the Department operates with the advantage of a 90% success rate (frequently as a result of settlement because the companies can’t risk debarment). Before the case is concluded, it may have been joined by some combination of the Veterans Administration, state Medicaid Fraud Units or relators under mirror state-law False Claims Acts for recovery of Medicaid dollars, as well as by private insurance companies under RICO, and states’ attorneys general under consumer protection laws. The Department of Health and Human Services Office of Inspector General (HHS OIG) will likely be at any settlement negotiations to hammer out a 100-page Corporate Integrity Agreement (CIA). If the company’s activities are really offensive, DOJ may throw in a mail or wire fraud charge. When the fines are announced, and the CIA is signed, shareholders will file a derivative suit against the directors seeking reimbursement, claiming that if they weren’t asleep on the job the company would have avoided what often exceed billion dollar fines. And that’s just for off-label activity. The enforcement regime currently policing the life sciences industry is mind-bogglingly complex, representing a new and clearly unimagined era in “public-private enforcement.”

A must-read for health academics is David Freeman Engstrom’s trilogy of articles about public-private enforcement, focusing specifically on the False Claims Act (FCA), the “gold standard” of hybrid enforcement: Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, found in Columbia Law Review, Public Regulation of Private Enforcement: Empirical Analysis of DOJ Oversight of Qui Tam Litigation Under the False Claims Act, appearing in Northwestern Law Review, and Agencies as Gatekeepers, published in Yale Law Journal. Unsurprisingly, healthcare cases comprise a disproportionate share of FCA cases, thereby making Engstrom’s work extremely important to the health law academy. These articles represent a breath-taking amount of work, providing a theoretical framework from which to analyze the balance and effectiveness of a public-private enforcement regime as well as empirical data to assess both fans’ and critics’ perspectives of FCA prosecution as well as relators’ and DOJ’s roles. Continue reading "The Public-Private Enforcement Regime: Does the False Claims Act Work?"

Free for the Taking (or Why Libertarians are Wrong about Markets for Privacy)

Have you heard any of these arguments lately? Consumers willingly pay for the wonderful free services they enjoy using the currency of their personal information. We can’t trust surveys that say that consumers despise commercial tracking practices, because the revealed preferences of consumers demonstrate that they are willing to tolerate tracking in return for free social networking services, email, and mobile apps. If privacy law X were implemented, it would kill the free Internet (or more immodestly, the Internet).

Two recent articles take on all of these arguments and more in the context of the privacy of information collected online by private corporations. The articles are similarly entitled (before their subtitle colons), Free and Free Fall. Both are written by excellent interdisciplinary scholars, Free by Chris Hoofnagle and Jan Whittington and Free Fall by Kathy Strandburg. These articles, individually but even more taken together, present a thorough, forceful, and compelling rebuttal to pervasive libertarian paeans to the supposed well-functioning online market for personal information. Continue reading "Free for the Taking (or Why Libertarians are Wrong about Markets for Privacy)"

What Comes After Mass Incarceration?

The “grand social experiment” that is hyper-incarceration in the United States is coming to an end, and we need to be ready to reinvest correctional resources in more community-oriented programs. That, in a nutshell, is the message of The Punishment Imperative: The Rise and Failure of Mass Incarceration in America, by Todd Clear and Natasha Frost, well-known criminologists who have been writing about punishment practices for decades. Many of the general points made in this book will be familiar to criminal justice lawyers and professors who have paid any attention to the literature on punishment. But the book’s 200 pages of detail and its prescriptions will be intriguing even to those who know the field.

Here is the authors’ summary of research about the effects of this country’s four-decade obsession with putting increasing numbers of people behind bars for increasingly longer periods of time (Pp. 152–53):

  • “Longer prison sentences do not deter the people who receive them from crime; there is almost no relationship between the length of a prison stay and the likelihood of recidivism.”
  • “Going to prison does not deter; people who receive probation are no more likely (and may be slightly less likely) to recidivate.”
  • “Incapacitation effects of prison are small, primarily due to replacement.”
  • “Rehabilitation programs offered in prison are less effective than when they are offered in the community.”
  • Victims are no happier with the (more punitive) criminal justice system today than they were forty years ago.
  • Expanding the prison system has contributed to intergenerational criminality, broken families, problems in school, sexually transmitted diseases, teenage births, anti-conventional attitudes, depleted labor markets, racial inequality and crime.

In short, government policies such as truth-in-sentencing, mandatory minima, three-strikes laws, increased collateral consequences, and imprisonment after technical parole violations have not made communities safer and probably have aggravated the crime problem. Continue reading "What Comes After Mass Incarceration?"

Trans-Substantivity Beyond Procedure

David Marcus, Trans-Substantivity and the Processes of American Law, 2013 B.Y.U. L. Rev. 1191.

Whether the Federal Rules of Civil Procedure should be trans-substantive (as they ostensibly are) has been hotly debated since the Rules’ inception.  One wonders, after three-quarters of a century, if another article examining this central tenet of the American civil litigation system can make a unique contribution to the literature. David Marcus’s recent article, Trans-Substantivity and the Processes of American Law, demonstrates that the answer is “yes.”  Building on his excellent 2010 article, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure, Marcus challenges proceduralists to broaden their examination of trans-substantivity beyond the confines of civil procedure law.

This article examines the principle of trans-substantivity in the context of what Marcus calls “process law” —which includes not only procedural law, but administrative and interpretive law as well.  Marcus uses the Supreme Court’s 2009 decision in Ricci v. DeStefano to illustrate how the Court may draw upon federal civil procedure, federal administrative law, and statutory interpretation doctrine in a single case.  He draws upon this example to encourage scholars not to cabin their understanding of the pros and cons of trans-substantivity to a single species of process law.  The interrelationship and overlap of these doctrines are significant. Continue reading "Trans-Substantivity Beyond Procedure"

New Law School Fields of Study: Compliance and Risk Management

Geoffrey Miller, The Law of Governance, Risk Management, and Compliance (Wolters Kluwer Law & Business (Aspen Casebook Series) 2014).

I would not normally think of a casebook as appropriate for JOTWELL. It is the particular fit between a teacher’s ambitions and the material in the casebook that makes a teacher like the casebook, perhaps even a lot. A good casebook is a shell that the teacher and students can inhabit and learn to carry. It is not a well-formed argument of general applicability, such as would be found in the work that JOTWELL generally applauds.

Yet, in JOTWELL, I commend to your attention Geoffrey Miller’s The Law of Governance, Risk Management, and Compliance. This casebook is a convincing argument that compliance and risk management are fields of study appropriate for legal education. It expands the law school field of corporate governance from its current restricted view, discussing shareholders and boards, to one that encompasses all the actors within and without corporations who have an impact on compliance. Continue reading "New Law School Fields of Study: Compliance and Risk Management"

Looking for Mr. (or Ms.) Rights

Emily J. Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton University Press, 2013).

I am on the prowl. It’s 1 a.m. and I’ve been looking for Mr. (or Ms.) Rights all night. I’ve been hanging out in every Article of the Constitution of the United States and I have been deep into the pages of the United States Reports and the Federal Reporter. Oh, I have found plenty of negative rights, like the right to be free from cruel and unusual punishment and the right not to be twice placed in jeopardy for the same criminal act. But I need something more positive in my life. I want those things that make a person happy, like medical care, clean air and water, good working conditions, and a good education for my kids. I want positive rights.

Even though I turn on my hundred-watt charm, the federal courts keep turning me down. Then the person next to me slaps a book on the bar and says, “Take a look at this. I think it’ll get you what you want—or at least what you need.” Continue reading "Looking for Mr. (or Ms.) Rights"

The APA as “Superstatute” and What Does That Mean?

Kathryn E. Kovacs, Superstatute Theory and Administrative Common Law, 90 Indiana L. J. (forthcoming 2014), available at SSRN.

Most administrative law aficionados would think of the Administrative Procedure Act as a “superstatute,” but they might not all focus on what that might mean. Kathryn Kovacs has undertaken to tease the meaning of the APA as a superstatute and address the implications of such a characterization. They might not be what you would imagine.

Professor Kovacs begins by asking to what extent is administrative law “common law.” The APA is, of course, a statute, but it is viewed as largely codifying the then-existing common law. Moreover, after its passage courts continued to develop a common law of administrative law both to flesh out the ambiguous provisions of the APA and quite clearly to add on to them. While Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), may have drawn the curtain on new judicial inventions to administrative common law, it did not repeal those that had become well ingrained in the case law. Professor Kovacs focuses on two such inventions that have no basis in the text or history of the APA: deference to the military in matters subject to the APA and the ripeness doctrine. Continue reading "The APA as “Superstatute” and What Does That Mean?"

Internalizing The Costs Of Employment Law Violations

David Weil, The Fissured Workplace (Harvard University Press, 2014).

David Weil’s new book on the fragmenting of internal labor markets in many American industries, The Fissured Workplace, should be read by all who wish to understand how the challenges to enforcing laws designed to protect American workers have become greater as the institutional structures and processes through which American businesses produce and deliver goods and services have continued to evolve. This book should be read not primarily because President Obama last year nominated Weil, a Boston University School of Management Professor, to head the Wage and Hour Division of the Department of Labor or because the book includes several chapters stressing the importance of strategic public enforcement and the role of unions and other non-governmental worker advocacy groups in changing workplace culture. Rather, the primary value of the book is its rich description of the variant ways by which successful American businesses that sell branded goods and services have externalized the costs of employment law violations by delegating to other businesses the responsibility for providing and supervising the labor input for their branded products. This description supports the book’s most important recommendation, a recommendation that would require—beyond stronger enforcement of current laws—a re-internalization of the costs of employment law violations to those businesses that monitor and control the production of goods and services sold under their brands.

Weil describes three kinds of externalization: subcontracted workplaces, outsourced supply chains, and franchised retail operations. For each, he provides examples of lead businesses that use externalization to concentrate on their core competencies of branded product design, development, and marketing, as well as to escape certain costs, including labor costs, that would have to be incurred without externalization. Weil explains how externalization has been facilitated by technological developments that enable lead businesses to protect differentiated brands, and associated high profit margins, through close monitoring and coordination of the quality and timely production of branded goods and services. Modern computer-based technology provides this brand protection without some of the higher labor costs of non-union, as well as unionized, large internal labor markets. Furthermore, as long as the lead company delegates actual control over a subcontractor’s or franchisee’s workforce to the subcontractor or franchisee, it can escape at least some of the costs of compliance with employment laws like FLSA and OSHA, in addition to potential workers’ compensation liability. There is good reason to think that subcontractors and franchisors often cannot pass on employment law compliance costs to the dominant branding companies with which they are in business. While subcontractors’ and franchisors’ reduced concern with reputational costs and their tight profit margins encourage their non-compliance, their relatively small size and less permanent work forces make enforcement less likely. Further, lead companies with differentiated brands generally can transfer their business to competing contractors or other potential franchisees. Continue reading "Internalizing The Costs Of Employment Law Violations"

Patching Things Up

Linda Radzik, Tort Processes and Relational Repair in Philosophical Foundations of the Law of Torts (John Oberdiek ed., 2014).

Imagine you are trying to write a mission statement for tort law. What aspiration would you put on paper? Tort theorists will find Linda Radzik’s answer at once familiar and foreign. In Tort Processes and Relational Repair, Radzik suggests that tort should pursue corrective justice. But she rejects the familiar Aristotelian conception of corrective justice, on which wrongdoing calls for compensation that offsets the harm caused. Instead, she suggests that corrective justice requires reconciliation. According to Radzik, tort should aim to repair the relationships ruptured by wrongdoing, rather than the harms that result from it.

The problem with the Aristotelian picture of corrective justice, Radzik says, is that it mistakes what’s wrong with wrongdoing. If you think that corrective justice consists in compensation for harm done, Radzik explains, then you are apt to think that what is wrong with wrongdoing is that it damages something that belongs to the victim, or deprives her of something she is entitled to have. But, as Radzik points out, there are wrongs that do not result in harms, and harms that did not result from wrongs, so it hardly seems like harm could be the essence of wrongdoing. Continue reading "Patching Things Up"

“Take your stinking paws off [my property], you damned dirty [judges and legislators]!”*

Daniel B. Kelly, Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, 82 Fordham L. Rev. 1125 (2013).

Professor Daniel B. Kelly’s well-researched and carefully reasoned article discusses the traditional justifications for restricting testamentary freedom, not only from a legal perspective, but also an economic or functional one. The article first discusses the structure and goal of American succession law and the relevance of distinguishing between the ex ante perspective versus the ex post perspective. Next, the article explains the economic justifications for restricting testamentary freedom. Finally, the article critically analyzes the legal limitations on testamentary freedom.

Professor Kelly begins by noting the fundamental principle of American succession law—testamentary freedom. One justification for the law generally deferring to owners of property in deciding how to utilize or transfer their property is that it promotes social welfare. An advantage of testamentary freedom is that it aligns an individual’s “incentive to work, save, and invest with what is socially optimal,” which would facilitate long-term capital accumulation and productivity. Another advantage of testamentary freedom is that, in many situations, the testator is likely to be better informed than legislators or judges on how best to distribute the testator’s property. Finally, Professor Kelly notes that testamentary freedom may benefit familial relationships. However, even with all these advantages, a system based on testamentary freedom does not always coincide with the overall goal of advancing social welfare, at least in part because the law sometimes fails to incorporate the ex ante perspective. Consequently, the issue arises of when should the courts facilitate testamentary freedom, even though doing so permits a testator to assert “dead hand” control, and when should the courts restrict testamentary freedom, even though doing so means intervening in the testator’s disposition of property. Continue reading "“Take your stinking paws off [my property], you damned dirty [judges and legislators]!”*"

Civilizing Civil Detention

César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. (forthcoming 2014), available at SSRN.

When the news came out that nearly half a million noncitizens now find themselves in immigration detention, it struck me that this may be the most invisible civil-rights issue of our era. Immigration Detention as Punishment, by César Cuauhtémoc García Hernández, offers a compass through this tricky and contested terrain.

Formally, immigration detention is a civil status, an administrative adjunct to deportation. Detained noncitizens have lesser procedural protections against unnecessary or excessive detention than the criminal justice system provides to pre-trial detainees. Yet, immigration detention functions to deprive noncitizens of social and physical liberty in the same way as criminal incarceration. The government detains noncitizens in the same jails and prisons as criminal defendants and the convicted.  The lives of noncitizens in detention are regulated in the same way as the lives of those whose confinement results from the criminal justice system. Continue reading "Civilizing Civil Detention"

The Importance of Context

Lawyers in Practice: Ethical Decision Making In Context (Leslie C. Levin & Lynn Mather eds., 2013).

Context matters to lawyers. The representation of clients, advice-giving, advocating, drafting, and negotiating—indeed, the very exercise of professional judgment—all take place in a context that shapes and informs lawyers’ decision-making. Context, however, plays only a minimal role in the American Bar Association’s Model Rules of Professional Conduct (“Rules”). While some comments to the Rules often provide contextual examples, an underlying theme of the Rules is their universal appeal: the Rules are explicitly meant to be a one-size-fits-all model for all lawyers, irrespective of context. Some argue that the universal nature of the Rules renders them conceptually anachronistic and practically useless, and have called for the promulgation of rules of conduct more in tune with the increasingly diverse realities practicing lawyers face. Such a contextual critique consists of two steps. The first is empirical. Promulgating rules that meaningfully address the realities that lawyers face in practice requires an empirical understanding of these very realities. The second step is normative. Once empirical evidence is gathered, one has to decide what to make of it and whether and how to incorporate it into the Rules.

Lawyers in Practice: Ethical Decision Making in Context, a new volume of empirical work edited by Leslie Levin and Lynn Mather, significantly contributes to this universal-contextual discourse. It consists of sixteen excellent chapters examining in detail lawyers’ decision-making processes across thirteen different legal contexts including family, immigration, and personal injury, as well as corporate, securities, and IP law. “[T]he organized bar and many law schools,” write the editors, “continue to focus their discussion of legal ethics primarily on bar rules of professional conduct. That approach, this book suggests, is a serious mistake.” (P. 4.) Such a focus on the Rules is a mistake, assert Levin and Mather, because it ignores the importance of context: “[t]he chapters in this book look at lawyers’ decisions from the bottom up—that is, from the perspective of lawyers in practice—and not from top-down rules that often reveal more about the aspirations of the profession than the reality.” (P. 11.) “We hope,” conclude the editors, that “this book will help narrow the gap between what sociological scholars are learning about lawyers’ ethical decision making in context and the legal profession’s approach to the teaching and regulation of lawyers.” (P. 21.) Continue reading "The Importance of Context"

Guestworkers In Postwar America: A New History

In the past decade, there has been an explosion of wonderful work on the history of immigration and citizenship law. Cindy Hahamovitch’s No Man’s Land ranks with work of Mae Ngai, Daniel Kanstroom, Kelly Lytle Hernández, and others.  The book is essential reading for historians of twentieth century immigration.  It offers a brilliant account of the forces that have shaped modern immigration law and of the way immigration law categories have acquired meaning “on the ground.”

No Man’s Land is a meticulous and detailed study of the post-World War II agricultural guest-worker program as it applied to Jamaican workers.  Immigration historians have long been aware that immigration is a complex story of both “push” and “pull” factors, developments in the home country and those in the receiving country.  However, most historians focus on just one part of this dyad and make formulaic or empty gestures in the direction of the other.  Not Hahamovitch.  No Man’s Land pays serious attention to changing conditions in both Jamaica and the United States.  The book operates on multiple scales.  It situates the Jamaican guest-worker program in the larger geopolitical context of World War II and the Cold War; pays attention to horse-trading between the United States and Jamaica over the terms on which Jamaican workers would work in the United States; examines in considerable detail the conditions under which Jamaicans worked in different parts of the United States; discusses the efforts of American lawyers who sought to prevent exploitation of Jamaican guest-workers; and even focuses on the correspondence between Jamaican workers and their families back in Jamaica. Continue reading "Guestworkers In Postwar America: A New History"

A Truly Different Understanding of Law and Morality

Mark Greenberg, The Moral Impact Theory of Law, 123 Yale L.J. 1288 (2014).

In legal philosophy, as in many scholarly areas, there is a “good and original” problem: the work that is very good tends not to be particularly original (usually being rather a careful modification of existing ideas), and the work is truly original tends not be very good at all.  There are occasional exceptions, and one of these in the area of legal philosophy is the work of Mark Greenberg, who in recent years has developed, through a series of articles, a significant, and significantly novel approach to the nature of law.  As will be described, Greenberg’s theory is distinctive and refreshingly heretical.

Greenberg’s approach is in sharp contrast with what he calls “the Standard Picture,” a view he believes to be assumed or accepted, but rarely argued for, in connection with most of the currently popular theories of the nature of law.  Under the Standard Picture, when legislators enact a statute, they directly and straightforwardly add to our law(s).  At the same time, as Greenberg points out, lawyers, legal theorists, and law students – and everyone else who has looked seriously at the process of statutory interpretation in actual cases – know that the way statutes add to the law(s) is not that direct or that clear.  This is shown indirectly in the way that competent judges and practitioners, acting in good faith, often disagree about the legal effects of a statute (in application to actual or hypothetical sets of facts), with disagreements often occurring at a basic level (e.g., should we focus on the plain meaning of the statute’s text, or should we focus on what the lawmakers intended to do).  As the article points out, judges who disagree about statutory interpretation rarely come equipped with arguments about why some factors are relevant and others are not, or why some factors should be given greater weight than other (relevant) factors.  As Greenberg indicates, any such argument would likely be in terms of why – and when — the actions of legal officials affect our moral rights and duties. Continue reading "A Truly Different Understanding of Law and Morality"

Open and Close Innovation Regimes: An Experiment on Institutional and Organizational Design

Kevin J. Boudreau & Karim R. Lakhani, How Disclosure Policies Impact Search in Open Innovation, Harv. Bus. Sch. Tech. & Operations Mgmt. Working Paper (2013).

One of the central tensions in the institutional design of innovation regimes is the trade-off between incentives and disclosure. Innovation systems, including intellectual property systems, are created to optimize creative output by balancing ex ante incentives for initial creators with ex post disclosure of the innovation to follow-on creators and the public. According to accepted theory, the more rigorous the disclosure—in terms of when and how it occurs—the weaker the incentives. But a fascinating new experiment by Kevin Boudreau and Karim Lakhani suggests that differences in disclosure regimes can affect not just the amount of innovation but also the kind of innovation that takes place.

Boudreau and Lakhani set up a tournament on the TopCoder programming platform that involved solving a complicated algorithmic task over the course of two weeks. All members of the community were invited to participate in the tournament, and contest winners would receive cash prizes (up to $500) and reputational enhancement within the TopCoder community. The coding problem was provided by Harvard Medical School, and solutions were scored according to accuracy and speed. Importantly, the top solutions in the tournament significantly outperformed those produced within the medical school, but that’s a different paper. Continue reading "Open and Close Innovation Regimes: An Experiment on Institutional and Organizational Design"

Farewell, School House Rock (Understanding Legislative History through the Lens of the ACA)

The legislative history of the Patient Protection and Affordable Care Act (ACA) is dizzyingly complex and maddeningly opaque. Happily, a guide to this law’s history was published recently and undoubtedly will become an essential piece of understanding the puzzle of the ACA. Though John Cannan wrote the article to instruct law librarians in the modern methods of tracking increasingly intricate legislative history, anyone engaged in studying the implementation of the ACA and the ongoing challenges to that law will benefit from the meticulous detail this article provides.

Traditional sources of legislative history will thwart the casual researcher seeking to understand the provisions of the ACA. At one end of the spectrum, the United States Code Congressional and Administrative News (USCCAN), an ordinarily reliable source of legislative history, has no documentation for the ACA and one unrelated committee report for the ACA’s companion legislation, the Health Care Education and Reconciliation Act (HCERA). At the other end of the spectrum, THOMAS contains more legislative history than could possibly pertain to the subject matter of the ACA, yet it provides no guideposts for wading through the legion of amendments that appear to have applied to the ACA. The Justices called the legislative history impenetrable during the severability oral arguments in NFIB v. Sebelius. Cannan makes the impenetrable understandable by diligently tracking the genesis and progress of two House bills and three Senate bills that became the ACA so that we can understand how to find the history that exists between these extremes. Continue reading "Farewell, School House Rock (Understanding Legislative History through the Lens of the ACA)"

Oral History and Perceptions of Subjectivity

Robert Alan Hersey, Jennifer McCormack, & Gillian E. Newell, Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past, Ariz. Legal Stud. Discussion Paper 14-01 (2014), available at SSRN.

I strongly recommend this paper not only for its immediate subject—the struggles that indigenous peoples face in proving land claims due to colonial governments’ distrust of evidence on oral history—but also because it helped me understand the limitations of my own perspective.

Robert Alan Hershey, Jennifer McCormack, and Gillian E. Newell describe the disconnect between Western notions of cartography and spatial theory and those of indigenous peoples, particularly indigenous peoples located in North America, Australia, and New Zealand. They then explain that some of these groups, such as the Ngurrara in Australia have had success in getting their rights recognized by creating maps that incorporate oral history, thus adopting a hybrid form of evidence that is both documentary and respectful of indigenous ways of knowing such as through oral history. Continue reading "Oral History and Perceptions of Subjectivity"

Same-Sex Marriage in Windsor and the Indignities of Dignity

Noa Ben-Asher, Conferring Dignity: The Metamorphosis of the Legal Homosexual, 37 Harv. J.L. & Gender (forthcoming 2014), available at SSRN.

In United States v. Windsor, the Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) as unconstitutional. The decision renders married same-sex couples eligible for the same federal benefits (i.e., tax treatment and social security benefits) as their opposite-sex counterparts. In the midst of a largely celebratory reception of the decision, Noa Ben-Asher offers a much-needed critical analysis of Windsor’s bundle of rhetorical and doctrinal sticks. In Conferring Dignity: The Metamorphosis of the Legal Homosexual, Ben-Asher takes us through a genealogy of the “legal homosexual” in Supreme Court case law. As Ben-Asher notes, this genealogy begins with moral opprobrium and ends in Windsor’s exalted language about the dignity of state-sanctioned, same-sex couples. Recognizing dignity: Who can be against that, right? Ben-Asher demonstrates that in our post-realist world the story is more complicated.

The first part of Ben-Asher’s contribution is an astute rendering of the Supreme Court’s evolving doctrinal constructions of homosexual conduct and identity. Ben-Asher identifies four stages in what she terms the “metamorphosis of the legal homosexual.” In each stage, Ben-Asher reveals distinct moral assessments of the legal homosexual’s nature and conduct, as well as different understandings of the state’s role in the regulation of morals. Continue reading "Same-Sex Marriage in Windsor and the Indignities of Dignity"

Good Fences Make Better Data Brokers

Woodrow Hartzog, Chain Link Confidentiality, 46 Georgia L. Rev. 657 (2012) available at SSRN.

Since at least the early 2000s, privacy scholars have illuminated a fatal flaw at the core of many “notice and consent” privacy protections: firms that obtain data for one use may share or sell it to data brokers, who then sell it on to others, ad infinitum. If one can’t easily prevent or monitor the sale of data, what sense does it make to carefully bargain for limits on its use by the original collector? The Federal Trade Commission and state authorities are now struggling with how to address the runaway data dilemma in the new digital landscape.  As they do so, they should carefully consider the insights of Professor Woody Hartzog. His article, Chain Link Confidentiality, offers a sine qua non for the modernization of fair data practices: certain obligations should follow personal information downstream.

After 2013, it is impossible to ignore the concerns of privacy activists. The Snowden revelations portrayed untrammeled data collection by government. Jay Rockefeller’s Senate Commerce Committee portrayed an out-of-control data gathering industry (whose handiwork can often be appropriated by government). America’s patchwork of weak privacy laws are no match for the threats posed by this runaway data, which is used secretly to rank, rate, and evaluate persons, often to their detriment and often unfairly. Without a society-wide commitment to fair data practices, a dark era of digital discrimination is a real and present danger. Continue reading "Good Fences Make Better Data Brokers"

State Control of Black Mothers

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

Dorothy Roberts has long provided insightful analysis of the ways in which criminal justice policies police black families and the ways in which child welfare policies police the bodies of black women.1

In Prison, Foster Care, and the Systemic Punishment of Black Mothers (which was a part of an impressive UCLA symposium entitled Overpoliced and Underprotected: Women, Race and Criminalization), Roberts develops a detailed description of the “system intersectionality” between the punishing controlling systems of child welfare and the similarly racially discriminatory controlling systems that result in what is usually termed mass incarceration.2 Continue reading "State Control of Black Mothers"

Federalism and Mass Tort Litigation

Fair and global resolutions to mass tort claims are not easy to achieve. Aggregation of claims, either through a formal class action or perhaps through multi-district litigation (“MDL”) consolidation, has been a key feature of mass tort litigation for several decades. In an MDL, related cases filed in federal court may be consolidated before a single judge for coordinated pre-trial proceedings, including settlement. The benefits and limitations of aggregation generally, and the MDL device itself, have been the subject of numerous academic papers. American federalism places a stumbling block in the way of complete aggregation – the presence of related but non-removable claims pending in state court, which cannot be part of that consolidated federal action.

While many scholars have viewed non-removable claims as a limitation on the success of aggregation, surprisingly few have tackled the issue head on. Maria Glover provides a thoughtful and thorough investigation of this problem in Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Actions in Multi-District Litigation. Unlike scholars who have come before her, Glover does not dismiss the issue as an annoying yet intractable problem, although she does not purport to “solve” it. Rather, her article is a fresh and inventive take on this problem, in which she suggests that the presence of non-removable state actions might actually be beneficial to the resolution of mass tort claims. Continue reading "Federalism and Mass Tort Litigation"

Call for Papers: Legal Scholarship We Like, and Why It Matters

Legal Scholarship We Like,
and Why It Matters

University of Miami School of Law
November 7-8, 2014

JOTWELL, the Journal of Things We Like (Lots), is an online journal dedicated to celebrating and sharing the best scholarship relating to the law. To celebrate Jotwell’s 5th Birthday, we invite you to join us for conversations about what makes legal scholarship great and why it matters.

In the United States, the role of scholarship is under assault in contemporary conversations about law schools; meanwhile in many other countries legal scholars are routinely pressed to value their work according to metrics or with reference to fixed conceptions of the role of legal scholarship. We hope this conference will serve as an answer to those challenges, both in content and by example.

We invite pithy abstracts of proposed contributions, relating to one or more of the conference themes. Each of these themes provides an occasion for the discussion (and, as appropriate, defense) of the scholarly enterprise in the modern law school–not for taking the importance of scholarship for granted, but showing, with specificity, as we hope Jotwell itself does, what good work looks like and why it matters.

I. Improving the Craft: Writing Legal Scholarship

We invite discussion relating to the writing of legal scholarship.

1. What makes great legal scholarship? Contributions on this theme could either address the issue at a general level, or anchor their discussion by an analysis of a single exemplary work of legal scholarship. We are open to discussions of both content and craft.

2. Inevitably, not all books and articles will be “great”. What makes “good” legal scholarship? How do we achieve it?

II. Improving the Reach: Communicating and Sharing

Legal publishing is changing quickly, and the way that people both produce and consume legal scholarship seems likely to continue to evolve.

3. Who is (are) the audience(s) for legal scholarship?

4. How does legal scholarship find its audience(s)? Is there anything we as legal academics can or should do to help disseminate great and good scholarship? To what extent will the shift to online publication change how people edit, consume, and share scholarship, and how should we as authors and editors react?

III. Improving the World: Legal Scholarship and its Influence

Most broadly, we invite discussion of when and how legal scholarship matters.

5. What makes legal scholarship influential? Note that influence is not necessarily the same as “greatness”. Also, influence has many possible meanings, encompassing influence within or outside the academy.

6. Finally, we invite personal essays about influence: what scholarship, legal or otherwise, has been most influential for you as a legal scholar? What if anything can we as future authors learn from this?

Mechanics:

Jotwell publishes short reviews of recent scholarship relevant to the law, and we usually require brevity and a very contemporary focus. For this event, however, contributions may range over the past, the present, or the future, and proposed contributions can be as short as five pages, or as long as thirty.

We invite the submission of abstracts for proposed papers fitting one or more of the topics above. Your abstract should lay out your central idea, and state the anticipated length of the finished product.

Abstracts due by: May 20, 2014. Send your paper proposals (abstracts) via the JOTCONF 2014 EasyChair page at https://www.easychair.org/conferences/?conf=jotconf2014.

If you do not have an EasyChair account you will need to register first – just click at the “sign up for an account” link at the login page and fill in the form. The system will send you an e-mail with the instructions how to finish the registration.

Responses by: June 13, 2014

Accepted Papers due: Oct 6, 2014

Conference: Nov. 7-8, 2014
University of Miami School of Law
Coral Gables, FL

Symposium contributions will be published on a special page at Jotwell.com. Authors will retain copyright. In keeping with Jotwell’s relentlessly low-budget methods, this will be a self-funding event. Your contributions are welcome even if you cannot attend in person.

A Painful Shift from a New Paradigm to Regulatory Reality

Under what conditions do new scientific and technocratic paradigms drive profound policy change? Policymakers and bureaucrats are cognitively bound by, and emotionally attached to, the scientific and technocratic paradigms that guide their daily operations. Consequently, indications that existing policies and regulatory approaches are producing bad or unintended results tend to be ignored over long periods of time. Insofar as such signals are attended to, this is done within the logic of an existing paradigm, thereby resulting in incremental change. Fundamental – third order – policy changes entail a paradigmatic intellectual shift, which delineate an alternative problem definition, and a complementary set of policy tools. Students of policy associate such instances of third order change with Peter Hall’s study of the British Treasury and the Bank of England’s shift from Keynesian economics to monetarism in late 1970s. As shown in Hall’s study, this policy makeover was enabled by a coupling between Margaret Thatcher’s political will and the American-driven intellectual development of monetarism as an alternative to Keynesianism.

Still, Andrew Baker’s study shows that while a paradigmatic intellectual shift may be a necessary condition, as suggested by Hall, it may still be insufficient for fundamental policy change. Baker suggests that macro-prudential regulation encapsulates, intellectually, a paradigmatic shift in a similar vein to the rise of monetarism and the rejection of Keynesian economics. Pre-crisis financial regulation, as encapsulated in the Basel II standards, was based on the premise of market efficiency. Banks were assumed to have the capacity to assess and manage their capital and liquidity risks, and asset prices together with ratings by credit agencies were assumed to reflect assets’ real values and risks. Consequently, “Greater transparency, more disclosure, and more effective risk management by financial firms based on market prices became the cornerstones for the regulation of ‘efficient markets.” (P. 420). Macro-prudential regulation, by comparison, rejects the premise of efficient markets. Rather, it postulates that asset prices can be driven to extremes, whether upwards or downwards, due to pro-cyclicality (i.e. excessive levels of investment when prices are rising and radical contraction when prices are falling), herding behavior and complex interdependence between financial institutions and transactions. During 2008, this approach, which attracted limited support before the crisis, became the mainstream discourse of international and national financial regulators. By comparison, “Open advocates of rational expectations, new classical thinking, and an efficient markets perspective have been hard to find in financial regulatory networks, since late 2008.” (P. 424-25). Continue reading "A Painful Shift from a New Paradigm to Regulatory Reality"

Denigration as Forbidden Conduct and Required Judicial Rhetoric

Steven D. Smith, The Jurisprudence of Denigration, U.C. Davis L. Rev (forthcoming, 2014), available at SSRN.

Steven D. Smith has written another characteristically challenging paper. I fear that the paper, “The Jurisprudence of Denigration,” will be accepted without cavil by those who tend to disagree with decisions like United States v. Windsor or Lawrence v. Texas, and rejected without hesitation by those who champion those decisions. Either move would be unfortunate. This is a paper that says something important about the nature of modern constitutional and moral rhetoric surrounding hot-button social issues, and the uneasy position of judges and scholars as they attempt to find legally serviceable language with which to address social controversies in real time.

The paper’s argument has wide-ranging implications but is blissfully clear and simple. In Windsor, Justice Kennedy argued that section 3 of the Defense of Marriage Act was the product of “a bare congressional desire to harm a politically unpopular group”—that it came from a “purpose . . . to demean,” “injure,” and “disparage.” As Smith writes, “Justice Kennedy and the Court thereby in essence accused Congress—and, by implication, millions of Americans—of acting from pure malevolence.” This “extraordinary claim” forms part of a “discursive pattern” by judges and scholars that Smith calls “the discourse of denigration.” And it is wrong and dangerous. “Precisely contrary to its irenic and inclusivist intentions, by maintaining and contributing to that destructive discourse, the Supreme Court aggravates the conflict that is often described, with increasing accuracy, as the ‘culture wars.’”

At this point I can envision the supporters of Winsdor hastily yanking on the cord and seeking to get off the bus. But they should stick around, because Smith has some larger, interesting claims to make. Those claims do not require one to abandon support for Windsor or LGBT rights, but simply to ask how the Court gets there. Kennedy may have been arguing, Smith suggests, “that to disapprove of homosexual conduct is to declare or deem persons prone to such conduct to be in some sense lesser or inferior beings.” But that is a logical fallacy: “From the fact that a person is inclined to some behavior deemed immoral [by others], . . . it simply does not follow that the person is in any sense a lesser or inferior human being. And while those who disapprove of some behavior as immoral may believe that people who engage in the behavior are lesser human beings, they need not believe any such thing.” Even if supporters of DOMA and similar laws actually do regard gays and lesbians as “in some sense lesser human beings,” that still does not prove ineluctably that they are acting from a bare desire to harm those individuals. Continue reading "Denigration as Forbidden Conduct and Required Judicial Rhetoric"

Rethinking the Role of Agencies in Private Regulatory Enforcement

David Freeman Engstrom, Agencies as Litigation Gatekeepers, 123 Yale L. J. 616 (2013).

Over the past several decades, many scholars have weighed in on benefits and detriments of authorizing private parties to sue to enforce federal regulatory standards. They often take either of two opposing positions: Some argue that private enforcement is necessary to supplement underfunded and perhaps captured agency enforcement mechanisms; others contend that private enforcement undermines social welfare or even statutory goals by sacrificing officials’ prosecutorial discretion not to pursue cases that, while technically justified, would not further regulatory goals. Few scholars, however, have written about the trade-offs triggered by a choice between public and private enforcement.

In Agencies as Litigation Gatekeepers, David Engstrom views the issue as one of when and how agencies should control the use of private enforcement. He is not the first to write about vesting agencies with such gatekeeper functions. But, others who have written on the subject generally have done so within the context of a particular regulatory program or litigation regime. Agencies as Litigation Gatekeepers views the structure and control of private enforcement as a unique kind of regulatory problem that extends potentially to every regulatory program. Doing so allows the article to develop some theoretical insights into how private enforcement might be structured and how agencies might best further the use of private enforcement mechanisms. Continue reading "Rethinking the Role of Agencies in Private Regulatory Enforcement"

Employer Retaliation Policies and the Retaliation Catch-22

Deborah L. Brake, Retaliation in an EEO World, 89 Ind. L.J. 115 (2014).

Whistleblowers and workplace retaliation victims continue to make headlines in the national media. From Edward Snowden to NFL players Chris Kluwe and Jonathan Martin, employees who speak out against what they perceive as employer or coworker wrongdoing often generate significant disagreement among the public. Professor Deborah L. Brake has done as much as anyone in legal scholarship to highlight some of the limitations of workplace retaliation law. Her most recent article on the subject sheds light on a relatively unnoticed limitation.

One of the more frequent criticisms of the courts’ handling of retaliation claims is the standard to which retaliation plaintiffs are held. An individual who is retaliated against for opposing unlawful discrimination need not establish that the conduct opposed was actually illegal under federal law. Instead, the individual must simply establish that she reasonably believed that the conduct complained of was unlawful. If a reasonable employee would not have believed that the employer’s conduct was illegal, the employee’s conduct is unprotected under the law and the employer is free to retaliate against the employee for the employee’s opposition. As Brake notes, much of the criticism to date has focused on the fact that courts tend to hold retaliation plaintiffs not to the standard of a reasonable employee, but to that of a reasonable employee who has taken a law school course on employment discrimination, thus leaving many employees unprotected when they oppose what they believe to be discriminatory conduct. Continue reading "Employer Retaliation Policies and the Retaliation Catch-22"

The Supreme Court Flunks Again

John H. Langbein, Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases: Hillman Doubles Down on Egelhoff, Vand. L. Rev. (forthcoming, 2014), available at SSRN.

Nearly twenty-five years ago, Professor John Langbein published an article with the arresting title The Supreme Court Flunks Trusts. The article critiqued the U.S. Supreme Court’s decision in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), a decision which, as Professor Langbein explained, “rest[ed] on an elementary error in trust law” (P. 208) producing “a nonsense reading of ERISA” (P. 209). The article’s reasoning was compelling, and particularly devastating was the article’s conclusion (PP. 228-9):

. . .Bruch is such a crude piece of work that one may well question whether it had the full attention of the Court. I do not believe that [the justices] would have uttered such doctrinal hash if they had been seriously engaged in the enterprise. . .

I understand why a Court wrestling with the grandest issues of public law may feel that its mission is distant from ERISA. The Court may increasingly view itself as having become a supreme constitutional court, resembling the specialized constitutional courts on the Continent. If so, the time may have come to recognize a corollary. If the Court is bored with the detail of supervising complex bodies of statutory law, thought should be given to having that job done by a court that would take it seriously. . .

In 2013, the Supreme Court flunked again, this time with the laws of succession and restitution. The case was Hillman v. Maretta, 133 S.Ct. 1943 (2013). Professor Langbein has again penned a valuable and withering critique. It is a must-read. Continue reading "The Supreme Court Flunks Again"

Vanishing into the Ether: Link Rot and Disappearing Precedent

Every first-year law student is taught the importance of citing to the materials relied upon to make a legal argument. Opposing counsel and the judge should be able to retrieve the materials cited and determine whether the materials support the argument put forth. At first blush, citation to materials on the internet would seem to make retrieval easier. Lawyers no longer have to go to a library or dig through a database to find the cited materials. However, a fairly high number of these citations are being lost to link rot, that annoying instance when you click on a link and what you are looking for is no longer available.

Raizel Liebler and June Liebert conducted a study of internet links contained in Supreme Court of the United States (hereinafter “SCOTUS”) opinions from 1996–2010 and found that, shockingly, 29% of links in the opinions either led to nothing or did not lead to the information discussed in the opinion. With stare decisis as a foundational principle of American law, it is disturbing to consider how the underlying basis of court opinions may be disappearing at a rate much higher than anticipated. The consequences for lawyers and researchers seeking to understand the legal analysis contained in a court opinion are profound. Continue reading "Vanishing into the Ether: Link Rot and Disappearing Precedent"

Empirical Link Rot And The Alarming Spectre Of Disappearing Law

Something Rotten in the State of Legal Citation trumpets an important alarm for the entire legal profession, warning us that given current modes of citing websites in judicial cases create a very real risk that opinion-supporting citations by courts as important as the United States Supreme Court will disappear, making them inaccessible to future scholars. The authors of this important and disquieting article, Raizel Liebler and June Liebert, both have librarianship backgrounds, and they effectively leverage their expertise to explicate four core premises: Legal citations are important; web based legal citations can and do disappear without notice or reason; disappearing legal citations are particularly problematic in judicial opinions; and finally, to this reader’s vast relief, there are solutions to this problem, if only the appropriate entities would care enough to implement them.

Denoting the disappearing citation phenomenon with the vivid appellation “link rot,” Liebler and Liebert explain that the crucial ability to check and verify citations is badly compromised by link rot, and then demonstrate this with frankly shocking empirical evidence. According to their research: Continue reading "Empirical Link Rot And The Alarming Spectre Of Disappearing Law"

“The Only Thing We Have To Fear Is Fear Itself”: How Physicians’ Exaggerated Conception Of Medical Malpractice Liability Has Become The Real Problem

Myungho Paik, Bernard Black, & David A. Hyman, The Receding Tide of Medical Malpractice Litigation:  Part 1—National Trends, 10 J. Emp. Legal Stud. 612 (2013) available at SSRN.

Physicians continue to talk about the “Medical Liability Crisis” and physician-funded advocacy groups continue to push for additional and further-reaching liability-limiting reforms.  Yet although the prize advocates seek (tort reform!) has remained the same for decades, the justification for why tort reform is needed has undergone a subtle metamorphosis.  For a while, reformers argued that liability limits were needed because the problem of medical injury was grossly exaggerated—medical injury was a problem mostly ginned up by plaintiffs.  But then, the Institute of Medicine’s (IOM’s) groundbreaking 1999 study, To Err is Human, came along.  Estimating that between 44,000 and 98,000 Americans die in hospitals each year as a result of preventable medical errors, the IOM’s study took the wind out of that argument’s sails.  Undaunted, reformers changed their tune.  Tort reform was needed, reformers insisted, because, even if medical injury is all too real, medical liability is random, as decisions are untethered to the underlying merits of claims.  In 2006, however, that argument encountered a major setback.  David Studdert and co-authors published a groundbreaking study of 1,452 medical malpractice claims which convincingly debunked the litigation lottery story.  Some claims that don’t involve errors are indeed filed, they found.  But such claims do not typically result in payment.  Undeterred, another reason to resist medical liability has taken center stage:  the problem of defensive medicine.

Defensive medicine refers to instances when physicians, concerned about liability, test or treat despite the lack of medical necessity, as well as times physicians decline to provide particular services or accept certain individuals as patients for fear of liability.  A prototypical example might be a doctor who orders a CT scan, not because he believes it’s medically warranted but because he believes it’s prudent in light of the liability risk.  This behavior, some now say, imposes medical liability’s biggest cost.  Though numbers are hard to pin down (as it’s hard to discern whether that CT scan was really ordered to protect the physician from liability, as opposed to helping the patient or, perhaps, even padding the physician’s paycheck), defensive medicine appears to be widespread.  One recent survey found that 93% of physicians in high-risk specialties reported providing care that they thought was unnecessary.  And, respected academics suggest its price tag is high—roughly $45.6 billion per year.  Pointing to these statistics, some reason:  (1) defensive medicine is a huge problem, and (2) in order to rein in defensive medicine, we need to dramatically reduce medical malpractice liability—or, perhaps, dismantle the present system of compensation for medical injury.  That argument, in fact, appears to be gaining ground. Continue reading "“The Only Thing We Have To Fear Is Fear Itself”: How Physicians’ Exaggerated Conception Of Medical Malpractice Liability Has Become The Real Problem"

The Influence of Experts

Mai’a K. Davis Cross, Rethinking Epistemic Communities Twenty Years Later, 39 Rev. of Int’l Studies 137 (2013).

Why do certain ideas gain traction in policy debates? Regardless of one’s field of study, this question cannot be ignored. The challenge is where to look for answers. The 2013 article by political scientist Mai’a Davis Cross, Rethinking Epistemic Communities Twenty Years Later, is one new and relevant resource in this quest. For more than a decade international tax scholars have drawn on the work of international relations (IR) theory and scholarship. In part, this attention by the tax community was out of necessity. Although it was apparent that international tax policy was subject to and the product of the same basic forces animating the classic subjects of IR study (e.g., military, trade, and environmental policy) tax policy formation traditionally has received scant attention from this branch of political science research. Yet the ideas being developed in IR theory would prove important to a serious and sophisticated understanding of “international tax relations.” Thus, international tax scholars began looking across the divide of research fields to consider the value added from the IR theory work of political scientists such as Cross.

Rethinking Epistemic Communities emerges from one broad strand of IR theory, cognitivism, which explores how we know what we want, what we value, and what we seek. That is, even if much of international relations activity concerns the use of power and/or bargaining games to secure “desired” outcomes, how do countries and other key actors determine what they want? Certainly in some cases the parameters of what a country seeks to achieve may seem relatively clear, but in many others the outcome or at least its particular form, is less obvious. Under the broad umbrella of cognitivist theory, scholars devoted increased attention to the concept of “epistemic communities”– the idea of a “community of experts” who through their own internal standards might develop some measure of “consensus” on an issue. Because of the recognized special knowledge of this community, the consensus ultimately would be influential in shaping outcomes sought by decision. The prototypical epistemic community was a science “community” coalescing around a solution to a problem that would form the basis of international agreement among a number of states. But international tax policy seemed a fertile ground for exploring the potential influence of epistemic communities. Who is formulating ideas of successful or sensible international tax policy? When and how do they achieve credibility? Does the epistemic community model fit? Continue reading "The Influence of Experts"

Distinguished Precedents

What is the scope of precedent? It is a fundamental question in American law that has proven difficult to answer with precision. As courts, especially the Supreme Court, have increasingly crafted long, often rambling, opinions, it has become more difficult for other courts to interpret such judgments. Adam Steinman’s recent article, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, offers a key insight and valuable contribution toward explaining how courts should apply prior precedents to new facts.

The basic distinction Steinman draws in understanding stare decisis is between the rules stated by the precedent-setting court and the results reached by the precedent-setting court. In focusing on results (what Steinman terms “inferential stare decisis”), a court justifying its present judgment must reconcile its holding with the outcome of every precedential court opinion. Steinman, in contrast, argues that courts should not be obligated to conform their decisions with the results of prior binding opinions, but rather must follow the rule(s) articulated by the prior court. This approach decreases the constraining effect of prior decisions in one way, but increases their constraining effect in another. Future courts are less constrained in that they are not required to reconcile their decisions with the mere results of earlier ones. But they are more constrained in that, where the precedent-setting court has stated a rule, the future court cannot simply point to factual differences between the two cases and disregard the rule entirely. It would need to articulate a distinguishing rule that justifies a different result. Continue reading "Distinguished Precedents"

Defending Defending, with Integrity

How Can You Represent Those People? (Abbe Smith & Monroe H. Freedman eds., 2013).

Every criminal defense lawyer has been asked The Question: “How can you defend those people?” Even lawyers who do not represent persons accused of crimes have undoubtedly had to deal with the indignation directed at the lawyers representing the most recent high-profile, presumed-guilty defendants—O.J. Simpson, the detainees at Guantánamo Bay, alleged “American Taliban” terrorist John Walker Lindh, the Oklahoma City federal building or Boston Marathon bombing suspects, the man accused of being the guard known as “Ivan the Terrible” at the Treblinka concentration camp. The Question is about moral agency. How can you, an ordinary person, not only associate with but also actively assist terrible people in escaping punishment for terrible crimes?

Abbe Smith and Monroe Freedman have both written eloquently in answer to The Question.1 Now they have compiled a number of essays—some in the form in which they were previously published, some updated for this book, and some entirely new—written by advocates and academics who take seriously the problem of giving an account for one’s actions within a professional role. All of the essays, in one way or another, address the persistence of moral agency. Inside a criminal defense lawyer there is an ordinary person, with ordinary-person values, committed to non-violence and respect for the rights of others. What is it like to be that person? In this way the essays move beyond justification to consider the issue of motivation. In a classic essay reprinted in this recent book, Barbara Babcock surveys a number of responses, including: Continue reading "Defending Defending, with Integrity"

Sex and Civil Liberties

Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012).

Multiple paradoxes lie at the heart of Leigh Ann Wheeler’s How Sex Became a Civil Liberty: a constitutional doctrine of sexual privacy exists alongside a public culture saturated by sex; women and sexual minorities enjoy unprecedented rights and freedoms while pornography proliferates in plain sight and civil libertarian principles underwrite opposition to rape shield laws and hate speech codes. Meanwhile, liberals and conservatives alike speak in a common civil liberties idiom that embraces the individual’s right to access sexual material once considered an obvious and proper target of state regulation. As Wheeler’s engaging history of how the American Civil Liberties Union (ACLU) helped make sex a civil liberty reveals, commitments to sexual freedom and consumer rights grew out of the changing political and cultural milieu from which the organization emerged and drew its leaders.

Wheeler’s story begins in the early twentieth century with portraits of individual ACLU founders and leaders including Roger Baldwin, Crystal Eastman, and Madeleine Zabriskie Doty. She highlights how their sexual lives—more adventurous and avant-garde than previously understood—shaped their thinking and spawned a civil liberties vanguard. Wheeler’s account intriguingly suggests that men’s and women’s differing experiences of the “first sexual revolution”—relatively unmitigated liberation for men, a much more ambivalent legacy for women who continued to value fidelity and lived in fear of unwanted pregnancy—may have led them to see birth control as an essential liberty that could also help to bridge this gender gap. Continue reading "Sex and Civil Liberties"

On Narrative, Legal Discourse, and Yaser Esam Hamdi

Linda H. Edwards, Where Do the Prophets Stand? Hamdi, Myth, and the Master’s Tools, 13 Conn. Pub. Int. L. J. 43 (2013).

Linda Edwards’ article is a thoughtful examination of the hidden and unexplored role of narrative in legal decisions. The article raises fundamental questions about the nature and boundaries of legal discourse and demonstrates that narrative theory and cognitive study can bridge the distance between what one may call ‘traditionalist legal analysis’ and its ‘oppositionist’ critique. The article is a delight. It joins an arresting image to an elegant argument, and it is beautifully written.

Edwards’ arresting image evokes an ancient, walled city. Life proceeds vibrantly inside the walls, where people deliberate and decide questions within a common cultural frame. Outside the walls, prophets shout toward the people, but their voices are lost in the vast plains. Occupants of the city occasionally lob verbal assaults—“Be quiet; stop whining; leave us alone”—but the city largely ignores the prophets. For Edwards, this metaphor captures the relationship between judges and traditionalist legal scholars and critical theorists. Continue reading "On Narrative, Legal Discourse, and Yaser Esam Hamdi"

How Copyright Prevents Us From Getting the Books We Want

Paul Heald, The Demand for Out-of-Print Works and Their (Un)Availability in Alternative Markets (2014), available at SSRN.

Back in mid-2013, Paul Heald posted to SSRN a short paper that already has had far more impact than academic papers usually have on the public debate over copyright policy. That paper, How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs), employed a clever methodology to see whether copyright facilitates the continued availability and distribution of books and music. Encouraging the production of new works is, of course, copyright’s principal justification. But some have contended that copyright is also necessary to encourage continued exploitation and maintenance of older works. We find an example in the late Jack Valenti, who, as head of the Motion Picture Association of America, in 1995 made the argument before the Senate Judiciary Committee that it was necessary to extend the copyright term in part to provide continued incentives for the exploitation of older works. “A public domain work is an orphan,” Valenti testified. “No one is responsible for its life.” And of course if no one is responsible for keeping a creative work alive, it will, Valenti suggests, die.

Is that argument right? Enter Paul Heald. Heald’s 2013 article employs a set of clever methodologies to test whether copyright did, indeed, facilitate the continued availability of creative works—in Heald’s article, books and music.  With respect to books, Heald constructed a random sample of 2300 books on Amazon, arranged them in groups according to the decade in which they were published, and counted them. Here are his findings: Continue reading "How Copyright Prevents Us From Getting the Books We Want"

Do the Uninsured Become Healthier Once They Receive Health Care Coverage?

Bernard Black, José-Antonio Espín-Sánchez, Eric French & Kate Litvak, The Effect of Health Insurance on Near-Elderly Health and Mortality, Nw. L. & Econ. Research Paper Series, available at SSRN.

While advocates for the Affordable Care Act (ACA) assume it will improve the health of the uninsured, Bernard Black and co-authors observe that the link between health insurance and health is more tenuous than one may think. Partly because other factors have a bigger impact on health than does health care insurance and partly because the uninsured have always been able to rely on the health care safety net, we may see little improvement in the health of the previously uninsured from ACA.

In their study, Black et al., collected nationwide data on people who were age 50-61 in 1992. The authors looked at this “near-elderly” population because a beneficial effect of insurance would be most likely found in that group—younger people are healthier, and older people are covered by Medicare. The authors then looked at the study subjects’ access to health care and their health outcomes for the next 18 years. As expected, insured individuals used more health care resources than did uninsured people. However, there was no evidence that being insured lowered the risk of death 12-14 years into the study, and only mild evidence of a mortality benefit at 16-18 years. Continue reading "Do the Uninsured Become Healthier Once They Receive Health Care Coverage?"

Lots of Love for this Loving Analysis

I. Bennett Capers, The Crime of Loving: Loving, Lawrence, and Beyond, in Loving v. Virginia in a Post Racial World” Rethinking Race, Sex, and Marriage (Kevin Noble Maillard & Rose Cuison Villazor eds., 2012).

Few authors can bring cases and their meaning(s) alive like Professor Bennett Capers. Capers does not disappoint with his recent chapter The Crime of Loving: Loving, Lawrence, and Beyond. Capers provides a criminal law lens for family law scholars to further examine and understand the landmark decision, Loving v. Virginia. In Loving, the Supreme Court struck down Virginia statutes that criminally prohibited and punished marriage between Whites and non-Whites as violations of equal protection and due process. In reconsidering this landmark case through the lens of criminal law, Capers exposes the power of “white-letter law,” which “suggests societal and normative laws that stand side by side and often undergird black-letter law, but . . . [that] remain invisible to the naked eye.” (P. 120.) More so, Capers beautifully reveals how “Loving and Lawrence both serve as cautionary reminders of the long leash we have given to criminal law.” (P. 125.) He details the many ways in which criminal law has been used to regulate and shape many aspects of our personal and social lives. Noting such regulation has occurred through the use of “a whole host of victimless crimes,” such as adultery, gambling, pornography, and premarital sex, Capers joins scholars such as Melissa Murray in exposing the often-ignored manner in which criminal law is used to invade citizens’ privacy and enact a moral code upon behaviors that are not generally associated with criminality.1

Capers begins his chapter with a compelling narrative that provides a vivid picture of Loving’s limited impact on towns such as his hometown of Charleston, South Carolina. Capers starts by comparing the “Charleston of [his] youth,” a place that “had only one interracial couple” with Richard and Mildred Loving’s hometown of Central Point, Virginia, a rare, integrated community in the South “in which [the Lovings] knew they could live as husband and wife . . . . a place where they would be welcome . . . . a place they could call home.” (Pp. 114, 118–19.) The difference, Capers explains, was not the black-letter law in the two locations; after all, interracial marriage was illegal in Virginia at the time the Lovings got married, but was legal in Charleston—and indeed, nationally—during his youth. Rather, the difference was in the white-letter law, the extralegal prohibitions “that reminded people of their place and reminds them still.” (P. 116.) As Capers makes clear, “Brown or no Brown, Loving or no Loving,” the Charleston of his youth and of today includes very few interracial families because “people kn[o]w their place.” (P. 116.) Indeed, Capers implies that a black-letter prohibition was unnecessary to maintain this status quo. He writes: Continue reading "Lots of Love for this Loving Analysis"

Practicing the Future

Over the past several years, Davina Cooper has been writing about “everyday utopias,” intentionally created practices and spaces, which represent an effort to enact social change in everyday life. In Everyday Utopias: The Conceptual Life of Promising Spaces, Cooper brings together much of this work in a revised form and underpins it with an extensive theoretical discussion of how such practices can be understood as socially transformative.

The individual pieces previously published were always intriguing and highly stimulating—engaging as they did in great detail with a variety of otherwise marginal, and sometimes unstudied, cases. These include Speakers’ Corner in Hyde Park, the Toronto Women’s bath house, Local Exchange Trading Schemes, public nudism, an alternative school, and a state-run equality program. The synthesis of these case studies into one collection adds enormous value to her previous publications, as does the very significant theoretical work Cooper undertakes in framing, connecting, and conceptualizing these spaces. More than this, the book itself is “hopeful and inspired”—as Sara Ahmed says on the back cover—because it offers multiple instances of social transformation in action and an analysis of how shaping the present may influence the future, both in the cases discussed but also in general. Continue reading "Practicing the Future"

The Rise of Automated Policing

Scholars analyzing immigration enforcement often do so in a way that treats the matter as separate from more general trends and developments in law enforcement. In fact, however, many of the trends in immigration enforcement are mutually reinforcing of, and in evidence throughout, various law enforcement domains. Anil Kalhan neatly captures that reality in his article Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy. In so doing, he opens up a discussion that has significant implications for both criminal justice and immigration law scholarship.

In his article, Kalhan critiques the phenomenon that he labels “automated immigration policing.” As he defines them, “[a]utomated immigration policing initiatives deploy interoperable database systems and other technologies to automate and routinize the identification and apprehension of potentially deportable noncitizens in the course of ordinary law enforcement encounters and other moments of day-to-day life.” (P. 1108.) As his article makes amply clear, reliance on automated-policing techniques is not limited to immigration policing. He draws upon the work of numerous federalism, privacy, and criminal procedure scholars to highlight the ways in which automated immigration policing is of a piece with general developments in governmental surveillance and law enforcement.  In immigration policing, as in other law enforcement endeavors, a broad—and elastic—range of law enforcement agents access growing stores of personal data accumulated by local, state, federal, and private actors, in the service of multifarious and open-ended law enforcement ends. Continue reading "The Rise of Automated Policing"

Constructive Criticism

Curtis A. Bradley & Neil S. Siegel, Constructed Constraint and the Constitutional Text, Duke Working Paper (2014).

In their beautifully clear essay, Duke Professors Bradley and Siegel argue that the clarity of constitutional terms—when we glimpse it—is a result of hard work, however implicit. Clarity turns on construction, the effortful identification and deployment of what we decide are apt presuppositions. Seemingly easy cases of constitutional interpretation and enforcement are, Bradley and Siegel think, therefore of a piece with hard cases. At work just below the surface, we discover the same repertoire of devices that lawyers, judges, and academics use in dealing with ambiguities, gaps, anachronism, history, or similar vagaries: senses of purpose or structure, concern for consistency with established readings, popular understandings, and so on. Circa 1980s cls (critical legal studies) discussions of constitutional law were pretty much right in this regard. “It is important to ask not only whether and why American interpreters regard themselves as bound by text that they deem clear,” they write, “but also when they deem the text clear. Text is not merely a fixed structure to be built upon…rather it is also something that is itself partly constructed and reconstructed.”

Are Blue Devils now Red Devils? Bradley and Siegel think not. They believe they are just clearing out confusion about the role of constitutional texts in constitutional thinking. Some theorists posit that constitutional texts as such figure mostly marginally—for example, as focal points within a largely common law analysis (Bradley and Siegel cite David Strauss) or as initial frameworks (they discuss Jack Balkin). But if we understand our readings of constitutional passages as involving the same hard work whether we reach clear conclusions or end indecisively, we may rightly characterize our approaches as strongly textual—as always closely engaging constitutional wordings, even if the literal texts never or hardly ever operate in our thinking in isolation. Professors Bradley and Siegel assemble a substantial list of exemplars in support. They include discussions of the word “Congress” in the First Amendment; Fifth Amendment reverse incorporation of the Fourteenth Amendment’s Equal Protection Clause; the limited limits (so to speak) on the applicability of the Eleventh Amendment, and Lincoln’s reading of the Suspension Clause. Continue reading "Constructive Criticism"

Recognizing the Value of Failure in Civil Litigation

Alexander A. Reinert, Screening Out Innovation: The Merits of Meritless Litigation, 89 Ind. L. J. __ (forthcoming 2014) available at SSRN.

Throughout life, we are told that we should learn from our mistakes.  Alex Reinert, in Screening Out Innovation:  The Merits of Meritless Litigation, forces us to consider why civil litigation shouldn’t have to do the same.  Reinert elegantly defines meritless–as distinct from frivolous–litigation, argues why the civil justice system should value it, and argues that Congress, the Court, and federal rulemakers should change the way they think about substantive and procedural change.

In civil litigation, the question of how to manage the tension between efficiency and justice has been resolved by resort to an argument that frivolous claims should be screened out, and screened out early.  That proposition appears uncontroversial on its face.  Yet, changes like the Twiqbal pleading standard and the Private Securities Litigation Reform Act (PSLRA) are criticized for taking this proposition too far.  The argument is that these efforts to achieve efficiency screen out meritorious cases along with the frivolous.  Those in favor of these changes respond by arguing that it is worth sacrificing a few meritorious cases because the overall system benefits when frivolous cases are eliminated.  Proponents argue this leaves more room for meritorious cases to receive careful attention.  What gets left out of this debate, at least explicitly, is the role of meritless cases in the system and how those meritless cases should be valued when considering substantive and procedural reform. Continue reading "Recognizing the Value of Failure in Civil Litigation"

What’s Left of Mandatory Shareholder Primacy?

Lyman Johnson & Robert Ricca, The Dwindling of Revlon, Wash. & Lee L. Rev. (forthcoming 2014) available at SSRN.

My colleague Lyman Johnson and his co-author Robert Ricca have written an important new paper on the Delaware Supreme Court’s well known Revlon doctrine.  They make two noteworthy points in their article.  First, they argue that courts have interpreted Revlon‘s scope too narrowly, excluding from its coverage cases that do not actually result in a deal.  Second, they show that in actual practice Revlon is much less important than commentators and lawyers have appreciated.  So, the only Delaware case mandating short-term share price maximization ends up not only having more restricted application than its logic and policy might otherwise appear to require; its limited practical relevance indicates an even weaker doctrinal commitment to shareholder primacy than academics and others realize.

The Delaware Supreme Court decided the Revlon case in 1986, in the midst of a flurry of important rulings necessitated by the explosion in hostile takeover activity.  These cases called on the court to balance its traditional emphasis on the board of directors’ authority and responsibility to determine the corporation’s future against shareholders’ interest in unimpeded access to tender offer premia.  Lurking in the background were broadly held concerns about the social costs of hostile takeovers.  In the event, the court came down on the side of management’s broad (though not unlimited) discretion to deploy defensive measures to block unwelcome hostile tender offers, except in narrow circumstances defined in the Revlon case.  As elaborated in subsequent decisions, Revlon requires that management set aside its own views about what’s best for the corporation and its shareholders and instead seek to obtain the best price reasonably available for the company’s shares.  This duty arises if management initiates an active bidding process that will result in a sale leading to breakup of the company; or, if in response to a bidder’s offer, it abandons its long-term strategy in favor of a transaction that will result in breakup of the company; or, if it approves a transaction that will result in a change in control of the corporation. Continue reading "What’s Left of Mandatory Shareholder Primacy?"

Viewing the Arbitrary and Capricious Test as a Set of Function-Specific Criteria

Louis J. Virelli III, Deconstructing Arbitrary and Capricious Review, 92 N.C.L. Rev. (forthcoming, 2014), available at SSRN.

The Administrative Procedure Act’s “arbitrary and capricious” standard has been a source of power for the courts, but also a source of bewilderment. It is a source of power because it provides courts with the authority to set aside agency action and, in particular, agency rulemaking, perhaps the most important and characteristic tool of regulatory governance. It is a source of bewilderment because its defining terms are enigmatic. Fairly early in its history, the D.C. Court of Appeals interpreted it as requiring courts to take a “hard look” at the agency’s action. Despite this formulation’s popularity, it has failed to dispel the mystery, first because it is excessively metaphorical, but even more seriously because it is deeply ambiguous. Does it mean that the court must take a hard look at the way the agency reached its decision (a procedural hard look), or rather that the court is insisting that the agency take a hard look at the evidence and arguments being presented to it (a substantive hard look)? The Supreme Court’s decision in Motor Vehicle Manufacturers Assoc. v. State Farm Ins. became the leading decision on the subject because it parsed the substantive hard look standard, providing at least some operationally defined criteria by which the agency’s application of the evidence can be assessed.

Given the importance and ambiguity of the arbitrary and capricious test, it is hardly surprising that the scholarly literature on the subject is voluminous. One approach that commonly appears is the effort to articulate a single test or standard that would enable courts to determine whether an agency decision is arbitrary or capricious. In this innovative and insightful article, Louis Virelli adopts the opposite approach. His idea is to multiply the number of considerations that the arbitrary and capricious test includes, combining both substantive and procedural standards. The point of this proliferation is not to make judicial review more demanding; he agrees with the prevailing view that the agency is the principal decision maker in our system and is entitled to considerable deference from the judiciary. But he argues that the administrative decision-making process necessarily consists of various discrete, qualitatively different steps, and that the standard for arbitrary and capricious action should vary in accordance. Thus, the hard look doctrine should be viewed as “a collection of more targeted inquiries into specific aspects of agency action.” Continue reading "Viewing the Arbitrary and Capricious Test as a Set of Function-Specific Criteria"

Fundamentally at Odds: Is the Sex Industry Compatible with the Mandates of Title VII?

Lua Kamál Yuille, Sex in the Sexy Workplace, 9 Nw. J.L. & Soc. Pol’y 88 (2013).

With the continual evolution of anti-discrimination law and an endless array of new, unexplored wrinkles and nuances of the law seemingly unfurled with each new holding, it is more important than ever that scholars persist in identifying open issues and problems in the jurisprudence. One of the primary practical benefits of scholarship in the field of employment discrimination has been to expose the gaps and cracks in the law’s coverage and regulation of the workplace, and the best scholars have made their contributions by surveying the landscape, contouring the fault lines, and proposing solutions. Sex in the Sexy Workplace by Professor Lua Kamál Yuille does just this.

Addressing itself to the issue of how to properly adjudicate the hostile work environment sexual harassment claim of a non-sexualized worker (like assistants, etc.) in a so-called “sexy workplace,” the article deftly raises the issue of how neither the law of sexual harassment, nor any of the critiques levied at that law, adequately responds to this unique situation in a way that vindicates the victim or recognizes the injustice of what has been allowed to occur. It then posits what Professor Kamál Yuille terms a “doctrinal fix that draws inspiration from the ‘bona fide occupational qualification’ and ‘business necessity defense’ exceptions to Title VII’s prohibition on workplace discrimination.” Finally, the article seizes upon the opportunity to point to this particular deficit in the law as being illustrative of a more rudimentary tension worthy of note in the law of sexual harassment: the so-called “sex industry,” Professor Kamál Yuille claims boldly, “is fundamentally incompatible with the principles of Title VII’s prohibition of gender discrimination.” Continue reading "Fundamentally at Odds: Is the Sex Industry Compatible with the Mandates of Title VII?"

Expanding Surrogate Decisionmaking

Alexander A. Boni-Saenz, Personal Delegations, 78 Brook. L. Rev. 1231 (2013).

There are certain decisions that most individuals would agree are deeply personal and should be made by the individual, not the state, or a third party. The decision to marry, divorce, relocate, execute a will, or donate one’s organs are among those decisions. But what if an individual has lost the cognitive capacity, due to accident or illness, to make these decisions? In the health care context, individuals increasingly delegate decisions about medical treatment to a representative. States encourage individuals to delegate these decisions by making durable power of attorney for health care forms readily available on their websites. When individuals fail to plan for loss of decisional capacity, states often rely on a statutory list of potential surrogates (such as a spouse, an adult child, a parent, etc.) or court-appointed guardians to make health care decisions on their behalf.

Health care decisions are as personal as any decision can be. Yet, while delegation is increasingly accepted in the health care context, the law generally does not allow individuals to delegate other personal decisions such as the decision to marry, divorce, or execute a will. Why not? What are the harms, if any, of not allowing delegation of personal decisions? Should a person who lacks decisional capacity be doomed to remain in an unhealthy marriage? Should he be bound by his state’s intestate succession scheme even if it is contrary to his values and preferences? These are the questions that Alexander A. Boni-Saenz tackles in Personal Delegations. Continue reading "Expanding Surrogate Decisionmaking"

Federal Preemption and Products Liability

Daniel J. Meltzer, Preemption and Textualism, 112 Mich. L. Rev. 1 (2013).

Professor Daniel Meltzer’s article on federal preemption and statutory interpretation is not exactly a torts article. But for those of us who believe that federal preemption in products liability is among a handful of the most pressing and controversial tort issues today, Preemption and Textualism, is an essential read. One of the nation’s most admired federal courts scholars, recently back from a stint in the Obama administration, Professor Meltzer is an ideal commentator on contemporary debates about the proper scope of federal preemption doctrine.

Meltzer’s target is the interpretive method of textualism. Textualism, he argues, is not up to the task of handling the important preemption issues before the Supreme Court. In particular, Meltzer demonstrates that, while Justice Thomas denounced “obstacle preemption” as inviting unconstrained judicial lawmaking, neither Thomas’s reliance on statutory text nor his putative rejection of obstacle preemption holds up to close analysis.1 In the end, Justice Thomas, like his conservative brethren, inevitably turns to purposive analysis. Continue reading "Federal Preemption and Products Liability"

After the Financial Crisis

Richard Eccleston, The Dynamics of Global Economic Governance:  The Financial Crisis, the OECD and the Politics of International Tax Cooperation (Edward Elgar, Cheltenham, 2012).

The breadth of global tax evasion has made public headlines and brought attention to the initiatives of the Organisation for Economic Co-operation and Development (OECD), alongside the G20 and other international bodies.  As Richard Eccleston reports, “the sheer magnitude of the threat that international tax evasion poses, denying governments approximately $250 billion per year – more than 15 times the sum spent on humanitarian aid globally in 2011 – ensures that the issue is gaining prominence on the international political agenda.” (P. 33) When taxpayers evade their obligations, the world suffers.  How could anyone not be gripped?

The Dynamics of Global Economic Governance:  The Financial Crisis, the OECD and the Politics of International Tax Cooperation is a welcome addition to the literature on the regulatory responses to international tax evasion, authored in the light of the global financial crisis.  Richard Eccleston, a political scientist in Tasmania, shifts the typical legal scholar’s lens from the legal frameworks that facilitate tax evasion to a careful and insightful exploration or the role of political actors in facilitating tax cooperation in response to that evasion.  The work is supported by interviews with more than 40 national tax officials, business and NGO representatives, OECD and UN staff. Continue reading "After the Financial Crisis"

Patterns and Problems in Professional Discipline Cases

Leslie Levin, Misbehaving Lawyers: Cross-Country Comparisons15 Legal Ethics 357 (2012), available at SSRN.

Commentaries on lawyer discipline often refer to practice areas that are involved in grievances. Discussions of lawyer discipline devote far less attention to examining the circumstances of particular grievances or the characteristics of the lawyers facing disciplinary charges. That is one reason why I especially liked Professor Leslie Levin’s Misbehaving Lawyers: Cross-Country Comparisons. This article was published in a special issue of Legal Ethics—the preeminent international legal ethics journal.

In his preface to the issue, Richard Abel described the premise of the special issue as follows: “we can illuminate the nature of and explanations for lawyer misconduct and the relative advantages of different regulatory responses by comparing case studies of lawyers disciplined a variety of countries.”1 In the special issue, experts presented fascinating case studies of lawyers disciplined in the authors’ home countries. Following these case studies, Professor Levin’s essay identifies similarities and differences among the cases studies written by experts from Canada, the Netherlands, the United Kingdom, Australia, and New Zealand. Anyone interested in lawyer conduct should read Professor Levin’s essay because it provides a concise and thoughtful analysis of patterns and problems that emerge from the accounts presented in the articles in the special issue. Legal profession scholars, lawyers who defend and prosecute disciplinary cases and malpractice cases, jurists, educators, and individual practitioners can learn a great deal by reflecting on Professor Levin’s observations. Continue reading "Patterns and Problems in Professional Discipline Cases"

Small Things Matter in Environmental Law

• Dave Owen, Critical Habitat and the Challenge of Regulating Small Harms, 64 Fla. L. Rev. 141 (2012).
• David E. Adelman, Environmental Federalism: When Numbers Matter More than Size, U. Texas Working Paper Series (2013), available at SSRN.

Most people, when they think of environmental pollution, think of large, industrial factories pumping out noxious fumes into the air, putrid liquids into the water, and barrels of toxic wastes into the soil. For instance, almost every newspaper article, blog post, or television story about climate change has as an image of the smokestack of a major power plant or factory.

Most people’s perceptions are wrong. It has long been the case that much of the degradation of our natural environment is the result of the accumulation of thousands, millions, even billions of individual actions by people across the United States and around the world. Climate change, for example, is the result of the decision of each of us to drive a car powered by fossil fuels, eat meat, fly in planes, heat our house with fossil fuels, and other similar, seemingly trivial actions. Moreover, these misconceptions are not limited to the general public or general journalists—environmental law scholars and policy makers have fallen into this trap as well. Even when scholars and policy makers have recognized the importance of small harms for environmental law and policy, there is often little information about how important they are, or what, exactly the implications are for our current legal and regulatory systems.

Two recent articles—Dave Owen’s piece, Critical Habitat and the Challenge of Regulating Small Harms, and David E. Adelman’s article, Environmental Federalism: When Numbers Matter More than Size—are welcome efforts to address the gaps in our understanding of how small harms matter to environmental law and why they matter. Moreover, they both are outstanding examples of a recent trend in environmental law to jump on the empirical legal studies bandwagon—both collect and use substantial amounts of data in their analyses. Continue reading "Small Things Matter in Environmental Law"

Forget About Noah’s Ark

Irus Braverman, Zooland: The Institution of Captivity (2012).

Irus Braverman’s recent book Zooland is a wonderful read on a topic that is of both historical and current interest—zoos. How should we view zoos given the frank admission by all, including zoo advocates, that zoo animals are captives, forced to forgo what would otherwise be a superior existence in order to serve the pedagogical and conservationist agenda that zoos have cultivated as justifications for their existence? These animals have been conscripted as “ambassadors for their species” (P. 8) and are in a sense turned into “body doubles”—“stand-ins for the real animals” and their wild habitats about which they are supposed to be raising awareness (P. 58). Perhaps zoos are effective at raising this awareness. Braverman is distinctly agnostic on the question of whether zoos are generally a good or bad thing.

Legal historians will be interested in the shift Braverman describes from zoos as sites of entertainment, a variation on the old menagerie style collection of animals, preferably exotic, that would then perform various colonialist and empire-building functions, to the (arguably) more laudable conservationist rationale and its accompanying practices often targeted at educating adults and children about species and habitat decline and destruction. The real animals are “just the hook” as one of Braverman’s interview subjects, Jim Breheny of the Bronx Zoo, puts it. (P. 41.) They are meant to draw you in. What they draw you into, as Braverman’s book details, is a world of contradictions. Braverman calls what she has found a Foucauldian “power of care,” minute in its regulation of the daily lives of zoo animals and profound in its reach into such fundamental aspects of the animals’ lives as the question of which animals are allowed to reproduce and which are not, which will be put on board “Noah’s Ark” and saved and which will not. The regimentation of the animals’ lives serves another disciplinary end: “Whereas once zoos were in the business of entertainment through taxonomic exhibitions,” Braverman writes, “now they discipline the public into caring about nature.” (P. 90.) Continue reading "Forget About Noah’s Ark"

Liberty, Equality, and the Rule of Law

T.R.S. Allan, Freedom, Equality, Legality in James R. Silkenat, James E. Hickey Jr., Peter D. Barenboim, The Legal Doctrines of the Rule of Law and the Legal State (Springer, 2014), chapter 11.

There is an innovative, very influential, and deeply pernicious tradition in English law and jurisprudence equating liberty with license and the rule of law with legal despotism. The beauty of this short chapter by T.R.S. Allan lies in its full implicit refutation of this shared misconception, as found in Thomas Hobbes, John Austin, and H.L.A. Hart, and its shorter explicit repudiation of their gentle contemporary apologist, Joseph Raz. Allan embraces traditional conceptions of the rule of law, demonstrates their central position in British jurisprudence, and makes sense of the doctrines of A.V. Dicey, often misstated as mere legal formalism.

“The rule of law and not of men” in its original, best, and most coherent sense is the antithesis of arbitrary power. This is both a political ideal and a constitutional doctrine: law and government are only legitimate when they serve justice and the common good of their subjects. To legislate, adjudicate, or execute the laws to any other end is contrary to the proper purposes of law, and therefore corrupt. “Liberty” consists in subjection to just laws, made for the common good — not (as some would have it) the simple license to do what one wants. Continue reading "Liberty, Equality, and the Rule of Law"

Copyright as a Chill on Innovation

Michael A. Carrier, Copyright and Innovation: The Untold Story, 2012 Wisc. L. Rev. 891 (2012).

Sony’s Betamax was the first reprography technology to attract a copyright infringement lawsuit. Little did copyright experts back then realize how much of a harbinger of the future the Betamax would turn out to be. Countless technologies since then designed, like the Betamax, to enable personal use copying of in-copyright works have come to market. Had the Supreme Court outlawed the Betamax, few of these technologies would have seen the light of day.

The most significant pro-innovation decision was Supreme Court’s Sony Betamax decision. It created a safe harbor for technologies with substantial non-infringing uses. Entrepreneurs and venture capitalists have heavily relied on this safe harbor as a shield against copyright owner lawsuits. Yet, notwithstanding this safe harbor, copyright owners have had some successes in shutting down some systems, most notably, the peer-to-peer file-sharing platform Napster.

It stands to reason that decisions such as Napster would have some chilling effect on the development of copy-facilitating technologies. But how much of a chilling effect has there been? Some would point to products and services such as SlingBox and Cablevision’s remote DVR feature and say “not much.”

Antitrust and innovation scholar Michael Carrier decided to do some empirical research to investigate whether technological innovation has, in fact, been chilled by decisions such as Napster. He conducted qualitative interviews with 31 CEOs, co-founders and vice presidents of technology firms, venture capitalists (VCs), and recording industry executives. The results of his research are reported in this Wisconsin article, which I like a lot. Continue reading "Copyright as a Chill on Innovation"

Mello’s MedMal 2.0 Study Documents Discordant Outcomes in the Communication-and-Resolution Programs

• Michelle M. Mello et al., Communication-And-Resolution Programs: The Challenges And Lessons Learned From Six Early Adopters, 33(1) Health Affairs 20 (2014).
• Michelle M. Mello, Susan K. Senecal, Yelena Kuznetsov & Janet S. Cohn, Implementing Hospital-Based Communication-And-Resolution Programs: Lessons Learned In New York City, 33(1) Health Affairs 30 (2014).

In January of 2014, Health Affairs published an entire issue dedicated to new approaches to medical malpractice reform, featuring several jotworthy articles with overlapping lists of authors, including these two led by Michelle Mello. This work is invaluable as it provides an early look at two sets of demonstration projects exemplifying new solutions to the problems of medical error and medical liability.

Across the multiple medical malpractice crises and waves of reform, the traditional debates have focused on ways to reduce the number, amount, and variability of liability judgments—imposing shorter statutes of limitations, interposing screening panels to filter out some cases, narrowing the range of potential expert witnesses eligible to testify, and capping damages regardless of the individualized proof determined by the jury. Regrettably, there is no reason to think that these reforms actually reduced the number of medical errors patients suffer. In fact, they may have exacerbated that problem if they have weakened the (imperfect) deterrence signal sent by liability. This point was sharpened in 1999, when the Institute of Medicine released a report summarizing evidence estimating that over 40,000 Americans were being killed every year due to preventable medical errors: the equivalent of a couple of jumbo jets full of passengers crashing every day. Continue reading "Mello’s MedMal 2.0 Study Documents Discordant Outcomes in the Communication-and-Resolution Programs"

Denaturing the Family

Clare Huntington, Staging the Family, 88 N.Y.U. L. Rev. 589 (2013).

Legal scholarship has been increasingly attuned to the role of performance in constructing legal norms. In Staging the Family, Clare Huntington brings this sensitivity to family law. Accordingly to Huntington, people act out the “collective understandings of mother, father, child, and the family itself.” These collective understandings reflect and perpetuate the law’s definition of the family and the rights and responsibilities of its members. Through this mutually reinforcing process, the law’s participation is “normatively narrowing” because it recognizes and thus reinforces only the prevailing, “dominant” images of the family. A consequence, Huntington argues, is that the law has ignored “seismic demographic changes in family form” such as nonmarital families, cohabitation, same-sex couples, and assisted reproduction. In replicating dominant family forms, the law has also idealized them. By reproducing “[o]verwhelmingly positive images of the family,” Huntington writes, the law has approached child sexual abuse “as a problem of strangers lurking in the shadows” rather than a problem within families themselves. (P. 595.)

At the root of the law’s conservatism is that it treats the dominant image of the family as the “natural” one. Huntington’s proposed solution is to “decenter ” or “denature” those dominant images. Operationally, this means “recognizing broader social fronts so that no one performance takes precedence over all others” (P. 640), giving “far greater leeway to parties to decide for themselves whether they constitute a family” (P. 641), and, in the child welfare arena, moving away from “set scripts that reinforce dominant images of family.” (P. 644.) Continue reading "Denaturing the Family"

What Do People Think About Copyright?

Lee Edwards, Bethany Klein, David Lee, Giles Moss & Fiona Philip, Isn’t it just a way to protect Walt Disney’s rights?: Media user perspectives on copyright, 16 New Media & Socy (2013).

When it comes to the issue of copyright in the digital age, it is not uncommon to read claims and counter-claims regarding the public’s perception of copyright enforcement and infringement through file-sharing mechanisms. Public policy in the field is often driven by assumptions that tend to be nothing more than guesswork as to their effectiveness and efficiency. While copyright policy has been the subject of several government-funded reviews in the UK in several years, these have usually failed to be conducted with the end-user of copyright works in mind, which seem to cement the idea that the subject is too complex for the public. It is therefore a very refreshing development when research is conducted to provide us with better empirical understanding of what the public really thinks with regards to copyright, going beyond mere conjecture and potential biases.

In Isn’t it just a way to protect Walt Disney’s rights?, the authors have set out to engage in an empirically sound exercise in order to ascertain the validity of various statements that are often part of copyright debates. They have put together a series of focus groups designed to get the opinion of “ordinary media users,” as the authors claim that this is a sector that does not often get their opinion represented in the copyright debates. The study’s methodology consisted in carrying out twelve focus groups based in Yorkshire, England, and each of these ranged from three to ten participants, who were recruited as pre-existing groups of media users, varying in age, background and experience with downloading media. The groups were asked to discuss topics relating to copyright, the creative industries, digital media, downloading and piracy for over one hour, and while the groups were directed, they were given a set of open-ended questions to explore the users’ experience, attitudes, and behaviour with regards to copyright. Continue reading "What Do People Think About Copyright?"

Dressed Up and Ready to Read

One of the most heated series of conversations I had with my colleagues in law school was about hair: color, style, length, and accoutrements. All of these choices apparently meant something. It was unclear to me what, precisely, my haircut at the time signalled—or didn’t—but it was clear to me that Hair Matters.

Thankfully, Ruthann Robson has authored Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from our Hairstyles to Our Shoes. The book is something of a relief for me. It clarifies how my hair (and clothes, and shoe) choices are constrained by the regulatory framework of the American Constitution. I feel less responsible for my Hair and Clothing Mistakes, since it is clear that my choices are subject to constitutional limits. And it has advanced my understanding of what Dressing Means. Continue reading "Dressed Up and Ready to Read"

Law Matters (A Bit)

• Brian R.Cheffins, Steven A. Bank, & Harwell Wells, Law and History by the Numbers: Use, But with Care, UCLA School of Law, Law-Econ Research Paper 13-21 (2014), available at SSRN.
• Brian R. Cheffins, Steven A. Bank, & Harwell Wells, Questioning “Law and Finance:” US Stock Market Development, 1930-1970, 55 Bus. Hist. 598 (2013), available at SSRN.

The relationship between civil and economic governing institutions and economic development is significant. Law matters to economic development. Acemoglu’s and Robinson’s comprehensive overview in Why Nations Fail: The Origins of Power, Prosperity, and Poverty provides a compelling case for the proposition that extractive institutions, in either sphere of civil life, can significantly retard economic progress and result in poor living conditions for the majority of people in a given society. Largely the province of development economists studying political institutions, the inquiry into the relationship between governance and economics in the corporate sphere was catalyzed by the famous work of Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny (LLSV) in the late 1990s.  The relationship among economic development and the institutions of finance – corporations, markets, and financial institutions – has since progressed from development economics to corporate legal scholarship.

The study of economic development is, necessarily, historical, and is in its nature largely comparative.  A welcome corollary in legal scholarship to the introduction of development economics is a renewed interest in corporate and financial history.  Cheffins, Bank, and Wells (CBW), all excellent contributors to this industry, have performed a notable service with a recent interesting pair of papers.  In Questioning Law and Finance, they turn from the traditional comparative approach of the development literature to examine, longitudinally, what that literature might teach us about economic development in 20th century America as a function of corporate and securities law.  In Law and History by the Numbers, they step back to examine the extent to which empirical research of the type used in the economics literature can shed light on corporate legal analysis. Continue reading "Law Matters (A Bit)"

Not “Just the Facts”: Art, Rape Survival, and Imagining Law Reform

Yxta Maya Murray, Rape Trauma, The State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631 (2012).

Despite reforms in the elements and evidentiary rules concerning rape and sexual assault crimes, successful prosecutions often face more practical narrative problems in convincing the jury of the credibility of complainants when the timing and manner of their accusation falls outside of how jurors may imagine the normal rape survivor would present herself to authorities. The proper place of psychiatric and psychological expertise about what is sometimes denominated “rape trauma syndrome” in trials and proper instruction of jurors in those trials has been the subject of serious critical debate among feminist legal scholars and rape survivors for twenty years. The sharp question of whether individual rape survivors or rape survivors as a class benefit from the ability to describe the rape survivor whose complaint comes “late” or is delivered in a flat and calm affect to police or medical authorities as suffering from a syndrome remains unresolved, and the same dilemma emerges in the domestic violence realm with “battered women’s syndrome evidence.”

Yxta Maya Murray brings us into this long and always troubling debate quite literally with the example of British artist and rape survivor Tracey Emin, whose work is both quoted and depicted in rare law review color photos. This article stands out amongst the many great criminal law articles that I’ve read in the past couple of years because it combines empirical social science, art, and humanities analysis, which gives us new purchase on concrete legal questions that have already received a great deal of both conceptual and empirical research. Continue reading "Not “Just the Facts”: Art, Rape Survival, and Imagining Law Reform"

Andrew Taslitz

Andrew Taslitz

With sadness we note the passing of Jotwell criminal law co-editor Andrew Taslitz who has died at age 57.  (See his obituary here.) Andrew was a graduate of Queens College and the University of Pennsylvania Law School.  After a practice career with the Philadelphia District Attorney’s Office, and in private practice, Andrew spent 23 years at Howard University School of Law.  He joined the law faculty at American University in 2012.  Andrew’s teaching included evidence, criminal procedure, and criminal law.  His scholarship dealt centrally with criminal law and procedure including one book on legal history, Reconstructing the Fourth Amendment: A History of 1789-1868 (2009), as well as Rape and the Culture of the Court Room (1999) and dozens of articles on criminal procedure and criminal law.  One of the most admired criminal law teachers of our time, Andrew’s passion for law and its reform were evident to his students, colleagues, and many readers.

Jackson

•  Neil H. Andrews, Money and Other Fundamentals: English Perspectives on Court Proceedings, Meditation, and Arbitration, U Cam. Faculty of Law Research Paper No. 38/2013 (2013) available at SSRN.
•  Stuart Sime, A Practical Approach to Civil Procedure (16th ed. 2013).
•  Stuart Sime & Derek French, Blackstone’s Guide To The Civil Justice Reforms 2013 (2013).

The banes of every civil-justice system are delay and expense.  The two maladies are often run together in a single phrase as if they were one disease, but they are distinct problems whose antidotes sometimes work at cross-purposes.  One solution to delay, for instance, is to impose early, firm deadlines during litigation, but that can simply induce parties to “lawyer up” and spend more money in the rush to meet truncated deadlines.  Conversely, keeping the cost of litigation down may induce more people to sue, which will drive up the length of time to resolution.

In England, where I taught this past Fall, the delay-and-cost two-step has played out over fifteen years and two sets of procedural reforms.  The first, and better known, effort occurred in 1998, when the Wolff reforms (named after Lord Chief Justice Woolf, principal author of the report Access to Justice) led to the creation of the Civil Procedure Rules.  The principal innovation of the Woolf reforms was case management, an idea that had been growing in popularity on the American side of the Atlantic since the 1970s.  But it also included a number of other innovations—such as pre-action protocols in which parties in some cases exchanged information before suit, greater resort to ADR, and a rule (“Part 36”) that operates akin to but more broadly than Federal Rule of Civil Procedure 68—that were designed to both reduce delay and lower the cost of litigation. Continue reading "Jackson"

Beyond Contraceptive Mandate Doctrinalism

James D. Nelson, Conscience, Incorporated, Mich. St. L. Rev. (forthcoming), available at SSRN.

Perhaps the single hottest issue in American law and religion right now is the dispute over the so-called “contraceptive mandate.” The Affordable Care Act requires employers to extend insurance coverage to include contraceptive care. It includes some exemptions for particular churches and other religious organizations, but the Obama administration has refused to extend that exemption too widely. A number of businesses or business owners have complained that this mandate violates “their” religious consciences and that, under the Religion Clauses of the First Amendment and/or the Religious Freedom Restoration Act, an exemption is required. Key questions raised by the controversy include whether corporations have religious rights at all, whether the mandate constitutes a substantial burden, and whether the mandate is generally applicable or not. Lower court rulings are all over the map. The Supreme Court will hear two of those cases next month.

Articles on the contraceptive mandate are a growth industry right now but, with all due respect, few of them have said anything all that deep. Much of the work on this issue is still at the shadow-amicus-brief stage of legal doctrinalism, in which the first articles addressing a legal issue read like standard legal briefs lining up on one side of the issue or the other. There is some value in that for the litigants, and for those scholars who are rehearsing for amicus participation. But those articles really are just rehearsals, efforts to fight tomorrow’s battles with yesterday’s tools. Continue reading "Beyond Contraceptive Mandate Doctrinalism"

Who, What, Why, When and Where: How Well Does the National Media Report on Sexual Harassment?

Joni Hersch & Beverly I. Moran, He Said, She Said, Let’s Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, 101 Ky. L.J. 753 (2013), available at SSRN.

In He Said, She Said, Let’s Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, Joni Hersch & Beverly Moran explore whether coverage of sexual harassment in the New York Times and Wall Street Journal is consistent with sexual harassment as it is reported in three other sources: a 1994 United States Merit Systems Protection Board (USMSPB) survey, charges filed with the Equal Employment Opportunity Commission (EEOC) from 2006-2010, and complaints filed in the Eastern District of Pennsylvania (EDPa) from 2010-2011. As the authors note, the article stemmed from curiosity regarding what national media outlets are reporting about sexual harassment and if that matches the reality of sexual harassment: “This article was inspired by a desire to learn if our national portrait of sexual harassment comports with what we know about harassment through social science.” (P. 775.) I like the article because it explores a practical issue that can help illuminate how one particularly important area of law is perceived and lived. How sexual harassment is perceived can help shape how sexual harassment law is enforced and how sexual harassment is lived in the workplace. Consequently, the article may be of interest to almost anyone who works with or cares about employment discrimination law.

The article can be summarized fairly quickly. The authors identify the key issue: whether major media outlets cover sexual harassment reasonably, fairly and accurately. After a brief discussion of the literature regarding sexual harassment in the workplace and the doctrine and history of sexual harassment, the authors compare sexual harassment coverage in the New York Times and Wall Street Journal with three data sets noted above: the USMSPB survey on sexual harassment, EEOC charge data, and sexual harassment complaints filed in the EDPa. The authors quickly analyze each data set noting the demographics of the sexual harassment claimants and what behavior tends to trigger harassment charges. The review of the media coverage suggests that sexual harassment is covered in an intensely local and episodic manner, with little recognition that sexual harassment is a national phenomenon that could be connected to “a larger, social, economic or political trend.” (P. 778.) In comparing the media coverage and the data sets, the authors found that while the reporting of the New York Times and Wall Street Journal generally does not mislead regarding the demographics of sexual harassment claimants, particular stories may downplay the seriousness of the factual allegations made in complaints. The article suggests that differences between the media portrayal of sexual harassment and what can be found in the data may result from the media’s focus on litigation. The authors note that a focus on pre-litigation harassment claims may provide a fuller picture of sexual harassment. The authors end the article observing that the focus on litigation leads to reporting that tends to miss “a sense of what happens before litigation and what sexual harassment means to victims in terms of their economic, professional, and emotional lives.” (P. 781.) Continue reading "Who, What, Why, When and Where: How Well Does the National Media Report on Sexual Harassment?"

Third-Party Financing of Litigation: Good or Bad?

Duty in the Litigation Investment Agreement: The Choice Between Tort and Contract Norms When the Deal Breaks Down, by Anthony Sebok and W. Bradley Wendel, addresses a topic of growing importance: third-party funding of litigation. In a third-party funding contract, a firm finances a lawsuit, and receives in return some portion of the judgment. Several finance firms have appeared recently, with Juridica and Burford perhaps the best known, that specialize in investing in large-claim lawsuits.

Third-party litigation funding is also known as champerty, and has been prohibited for a long time under the common law. The common law prohibition has been relaxed in recent years in some states, making the legal status of third-party funding agreements unclear as a general matter. The litigation investment firms have a large stake in the law changing in their favor, or at least remaining unclear. Continue reading "Third-Party Financing of Litigation: Good or Bad?"

Judge Wald and Justice Scalia Dance the Chevron Two-Step

Gary Lawson & Stephen Kam, Making Law Out of Nothing at All: The Origins of the Chevron Doctrine, 65 Admin. L. Rev. 1 (2013), available at BePress.

If you are teaching administrative law this semester, you can look forward to a riveting discussion of Chevron. There have been volumes written on this topic, and here I plead guilty. But if you will indulge me for a moment, I’d like to recommend that you read one more article about Chevron.

Professor Gary Lawson and former student Stephen Kam collaborated to write Making Law Out of Nothing At All: The Origins of the Chevron Doctrine. Their mission is to explain why the Chevron decision is irrelevant to the Chevron doctrine. They write not to praise or criticize the case, but “to bury it.” Or, to put it another way, they explain why one cannot resolve the many questions relating to the Chevron doctrine by examining the Chevron decision. In their article, Lawson and Kam elucidate how the lower courts, particularly the D.C. Court of Appeals, transformed the unrevolutionary Chevron case into the revolutionary Chevron doctrine within just two short years. Continue reading "Judge Wald and Justice Scalia Dance the Chevron Two-Step"

Are Inheritance Taxes Special?

Luc Arrondel & André Masson, Taxing more (large) family bequests: why, when, where?, (2013), available at HAL-SHS.

As I write this review, I am blatantly aware of the maxim “we like what we know.” I like Luc Arrondel and André Masson’s (A&M) working paper (lots) because it touches on themes I have previously written about (the clash between family autonomy and equality of opportunity as the central normative tension underlying the federal wealth transfer taxes) or enjoyed in other legal scholars’ work (the failure of economic models to account for “life in all of its fullness”). The contribution to these subjects made by A&M is interesting for two reasons: 1) they are economists by trade and 2) they offer a distinctly interdisciplinary analysis of the conundrum of wealth transfer taxation.

A&M first identify (and empirically document) a tax “puzzle:” revenues from wealth transfer taxation are very low and have fallen as a percentage of GDP in most developed countries over the past 50 years; whereas, revenues from lifetime capital taxation (including taxes on property/wealth and taxes on annual capital income flows) are generally higher and show no decreasing trend. The article discards several proffered explanations for this phenomenon (increased lobbying by the rich, growing international tax competition, and the relatively recent anti-government/tax movement) because these factors, intended to account for the growing unpopularity of inheritance taxation, would also imply—wrongly—a sharp decline in lifetime capital taxation. Continue reading "Are Inheritance Taxes Special?"

Undocumented Status and Slavery: Examining the Parallels

Chantal Thomas, Immigration Controls and “Modern-Day Slavery” (Cornell Law Sch. Legal Studies Research Paper Series, Paper No. 13-86, 2013), available at SSRN.

In the heat of the debate over comprehensive immigration reform last spring, Marco Rubio’s press secretary likened undocumented migrants to slaves, noting that Americans have not “had a cohort of people living permanently in US without full rights of citizenship since slavery.” The parallel between slavery and undocumented status is drawn often, but rarely with precision or analytical rigor.

Chantal Thomas’s new paper, Immigration Controls and “Modern-Day Slavery”, takes on the challenge of bringing hard-nosed logic to bear on the concept of “modern-day slavery” and its interface with immigration law. In my view one of the most interesting authors out there on questions of international law, immigration, and labor, Thomas’s analysis of the slavery debate does not disappoint. Continue reading "Undocumented Status and Slavery: Examining the Parallels"

The Erie-ness of the Rules

In Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Supreme Court famously ruled that a federal court cannot displace state common law with its own common law. Justice Brandeis’s majority opinion suggested that the Constitution compelled this result, and ever since, the decision has been called everything from a “brooding omnipresence” to an “irrepressible myth.” If Erie means anything (and, trust me, there is a lot of disagreement about whether it means anything at all), it makes clear that the federal government’s powers are limited vis-à-vis the states, and these limitations extend to the judiciary’s power to make law through precedent. To borrow Justice Brandeis’s words, “there is no federal general common law.” But translating this idea into doctrine has been a difficult task.

Applying Erie becomes even more complicated once you throw in the Federal Rules of Civil Procedure (which, ironically, became effective the same year as Erie). The Rules are like a legal mythical beast. The Rules are not statutes, even though they are exercises of Congress’s power to regulate the practices and procedures of Article III inferior courts. With rare exceptions, Congress does not exercise this power directly, but rather has delegated it to the Supreme Court through the Rules Enabling Act. The Court, in turn, has delegated the primary drafting of the Rules to an ad hoc advisory committee. Finally, under the Rules Enabling Act, the Rules cannot “abridge, enlarge or modify a substantive right,” which reflects a concern by Congress that the Court will abuse this delegated power to make “substantive” law without the authorization of Congress. Consequently, the Rules introduce a separation of powers dimension on top of the federalism concerns of Erie. Continue reading "The Erie-ness of the Rules"

Resistance is Futile?

Jakob Weberstaedt, English Alternative Business Structures and the European Single Market, Humboldt U. Berlin Working Paper (2013), available at SSRN.

In the last several years, alternative business structures (ABS) have been a top agenda item regarding the legal profession in the United States and Canada. Moves in Australia and England to liberalize legal markets—including the introduction of non-lawyer ownership of law firms—have inspired and influenced conversations about whether ABS should be introduced into the North American market for legal services. Most North American lawyers, however, don’t likely know much about how these overseas reforms have also fuelled the debate about ABS in Continental Europe. Fortunately, in his recent article, Jakob Weberstaedt provides an engaging account of this very issue.

Weberstaedt focuses on the reaction of the German Federal Bar to reforms introduced in England and Wales by the 2007 Legal Services Act, which allowed for law firms to be wholly-owned by non-lawyers (“English ABS”). The German reaction is, as he notes, of particular interest given both its forcefulness and the size of the German market for legal services (approximately 22% of the total revenues of the legal services sector in Europe). To provide some background for his analysis, Weberstaedt begins his article by outlining “[a] brief history of the Continental resistance to English ABS.” In this section, a number of interesting factual tidbits are offered, including the fact that, even before English ABS reforms were finalized, the German Federal Bar, via a 2006 letter from its president to a UK parliamentary committee considering the draft Legal Services Bill, made it clear that it “did not like the proposed reforms and that English ABS would not be allowed to operate in Germany.” A similarly negative position was subsequently taken by the Council of Bars and Law Societies of Europe (CCBE), which argued that provisions in a European Union directive1 addressing lawyer mobility would allow the Continental European bars to prevent English ABS from operating within their national jurisdictions. In turn, this analysis made its way into a response from the German Federal Bar to a 2011 American Bar Association issues paper on ABS. The background provided by Weberstaedt is both an informative summary of the events leading to the current debate about English ABS in Continental Europe and also a helpful reminder that the once-parochial issues of lawyer regulation now have an unprecedented global reach. Continue reading "Resistance is Futile?"

How Tax Law Made America Modern

Ajay Mehrotra’s new book, Making the Modern American Fiscal State, describes how the United States in the late nineteenth and early twentieth centuries transformed the way it taxed its citizens and thereby laid the foundation for new forms of governance and new sensibilities about the network of civic obligations that bound the nation together. This is a truly impressive work of legal historical scholarship—thoroughly researched, well written, and powerfully argued. Mehrotra also offers a masterful demonstration of scholarly synthesis, artfully weaving together an intricate tapestry of economics, politics, law, and social history.

At the heart of Making the Modern American Fiscal State is a revolution in American tax practices. Prior to the twentieth century, the national government raised revenue through a system of import duties and regressive excise taxes that were “indirect, hidden, disaggregated, and partisan.” (P. 6.) By the end of the story, in the wake of World War I and on the cusp of the New Deal, a much different taxing regime was in place. It was a progressive system that was “direct, transparent, centralized, and professionally administered.” (P. 6.) While prior forms of taxation drew on a premise of a quid pro quo exchange between citizen and government—citizens put money into the system and received certain benefits in return—the new form of taxation challenged this atomistic “benefits” theory and emphasized instead a thicker sense of national community and responsibility. Taxes were assessed on a principle of one’s “ability to pay.” This approach, Mehrotra explains, “promoted an active role for the positive state in the reallocation of fiscal burdens, the reconfiguration of civil identity, and the rise of administrative authority.” (P. 10.) The rise of the modern fiscal state, built on this transformation in taxing policy was, in Mehrotra’s account, a radical change in policy with lasting effects on American statecraft and society. Continue reading "How Tax Law Made America Modern"

Animals, Rights, and Legal “Bifurcation” In Kant

Christine Korsgaard, Kantian Ethics, Animals, and the Law, 33 O.J.L.S. 629 (2013).

The moral arc of the universe is long. But how long is it? If we measure from the civilizations of ancient Greece and Rome, it is long enough to bring into the fully human fold  whole categories that had once been denied equal moral status: notably slaves, women, and people of color, who had sometimes been regarded as hardly more significant, morally and legally, than (non-human) animals. It may be an exaggeration to say that Roman law adhered to a rigid, exhaustive and mutually exclusive bifurcation between rights-holding persons and non-rights-holding things, but the eminent Kant scholar Christine Korsgaard does not deny that Kant was “consciously following” precisely that view (P. 630, emphasis original). In this superb paper, she takes up the task of showing that Kant’s thought contains elements that undermine what she calls “the legal bifurcation” (P. 629) of the world into persons, on one hand, and things, on the other. That task is instrumental to her aim of showing that Kant might consistently have adopted a more respectful view of the moral status of animals, and that the framework of Kant’s thought indicates an attractive way of understanding what that third status—of neither person nor mere thing—might be.

Working within Kant’s general account of rationality, agency, and personhood, Korsgaard proposes that we recognize a third category of morally significant being: that of creatures who are not mere things, and yet are not persons either.  The tantalizing suggestion is that at least some animals populate this third category, and that they are not apt objects of ownership, at least not in the usual sense.  This of course is contrary to Kant’s statement in Anthropology from a Pragmatic Point of View: Continue reading "Animals, Rights, and Legal “Bifurcation” In Kant"

Quantifying the Copyright-Innovation Interference

Joel Waldfogel, Copyright Protection, Technological Change, and the Quality of New Products: Evidence from Recorded Music Since Napster, 55 J.L. & Econ. 715 (2012), available at the University of Minnesota.

The constitution empowers Congress to promote the useful and the expressive arts, which Congress does through the laws governing patents and copyrights. But, promoting one may sometimes retard the other. This happens in the context of new technologies of copying and dissemination, such as the photocopier, VTR, the MP3 player, and file-sharing networks. Imposing copyright liability on the makers and users of these technologies encourages copyright owners but may discourage innovators. Shielding such makers and users from liability encourages technological innovation but may retard expressive creativity. How should we strike this trade-off, either in general or in particular cases?

This question has long been a major issue in copyright law and scholarship.1 To know what the right policy is, we should have some sense of the degree to which incentives to create content are diminished, if at all, in the face of the new technology. Indeed, much empirical work surrounding the file-sharing litigation has studied the effect file-sharing had on music sales. This body of literature contains diverse views, and the debate on the empirics is sometimes as heated as the one on the theory and policy side.2 Continue reading "Quantifying the Copyright-Innovation Interference"

Demystifying the Fed

Peter Conti-Brown, The Institutions of Federal Reserve Independence, Rock Center for Corp. Governance at Stanford Univ. Working Paper No. 139 (2014), available at SSRN.

Exactly one hundred years after its birth, the Federal Reserve remains one of the most powerful and mysterious institutions in the world. The recent global financial crisis made it exceedingly clear how much the Fed can do – and, in fact, does do – to shore up failing financial markets and prevent the entire economic system from collapsing. That same display of strength under fire, however, exposed the darker side of Fed power: what if it’s abused or misused in ways that can hurt all of us? Both revered and feared for its apparent ability to pull at the hidden strings that keep the national (and even global) economy going, the Fed has emerged from the latest crisis with an expanded regulatory mandate and an even greater political visibility. Some applaud this development, while others criticize it. Yet, despite all of our post-crisis wisdom and divided opinions, how well do we know the Fed? Do we actually understand the sources and nature of the Fed’s century-old “magic”?

If you hesitate at all before giving an affirmative answer, you should read Peter Conti-Brown’s recent article, The Institutions of Federal Reserve Independence, a brand new draft of which is currently available on SSRN. This piece is an opening move in Conti-Brown’s larger project – a book entitled The Structure of Federal Reserve Independence (Princeton University Press, forthcoming 2015). The book promises to offer a comprehensive and historically-grounded analysis of the Fed’s “independence,” that critical ingredient of its powerful magic. To Conti-Brown, however, the Fed’s independence is much more than a dry legal concept – it is a complex real-life phenomenon, a unique “ecosystem” continuously evolving through interactions among multiple legal, political, administrative, ideological, and even cultural factors. From his perspective, it doesn’t make sense to speak of the central bank’s “independence” as a static formal attribute that means the same thing in every context. Instead, the task is to understand the key mechanisms, both formal and informal, through which the Fed exercises its independence vis-à-vis specific parties, or audiences. Continue reading "Demystifying the Fed"

Labor Protection Parity for Au Pairs

Janie A. Chuang, The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange, 36 Harv. J.L. & Gender 269 (2013).

What comes to mind when you hear the term “au pair”? If you’re like me, you may imagine a young adult from an upper-middle class family going abroad for a year to help care for another family’s children—a kind of student exchange program with some child care duties included as part of the bargain. But as Janie A. Chuang shows in her recent article, The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange, the au pair program that the U.S. government currently offers is not uncommonly a site of disturbing and exploitative labor practices that look much more like an abusive guest worker program than a cultural exchange. In fact, according to Chuang, the framing of the au pair program as a cultural exchange may actually contribute to the vulnerability of its foreign participants.

As Chuang notes in her article, the au pair concept was initially one of cultural exchange: au pair is a French term meaning “on par with,” and refers to “a European practice of having a young person come to a foreign country to learn the language and experience the culture through immersion in the home life of a host family while assisting with childcare and light housework.” Under the U.S. program, au pairs must be between the ages of 18 and 26. For one to two years, they live with “host families” and provide childcare in exchange for room, board, and a small stipend. Despite the labor provided by au pairs, however, the program is not run under the auspices of the Department of Labor, as are other employment-based visa programs. Instead, they are run under the State Department’s J-1 Exchange Visitor Program, a program that facilitates cultural exchange by providing temporary visits by people such as camp counselors, interns, and academic researchers. Categorizing the work as involving cultural exchange rather than labor allows employers to bypass the step of showing that they could not find a qualified American worker to perform the job. Continue reading "Labor Protection Parity for Au Pairs"

Generations of Activism and Queer Time

In their engaging, highly readable article, Jon Binnie and Christian Klesse explore the effects of intergenerationality within Polish transnational sexual solidarity movements. Specifically, the authors examine how chronological age and people’s histories and trajectories of political activism shape the interactions taking place between lesbian and gay activists from Poland and those from Western Europe.

The authors locate their discussion within queer conversations about time and futurity. According to Lee Edelman, whose blistering critique of heterosexual reproductive futurity proved very popular within certain quarters of queer studies, “The image of the Child invariably shapes the logic within which the political itself must be thought”; there is only one position to take when it comes to the Child and that is to be “for” it. Edelman argues instead for an “unthinkable” politics that refuses to be oriented to the future and its beneficiaries. But this is not the position Binnie and Klesse adopt. Rejecting Edelman’s account of queer, the authors draw instead on José Esteban Muñoz’s argument of queer time, where “Queerness is a structuring and educated mode of desiring that allows us to see and feel beyond . . . the present.” Thus, the authors indicate the possibility of a “queer child” as one who stands in for, and gestures to, a different future—where sexual diversity is a regular and accepted dimension of social life. Continue reading "Generations of Activism and Queer Time"

What Makes Health “Public”? Finding a Middle Path

Lindsay F. Wiley, Rethinking the New Public Health, 69 Wash. & Lee L. Rev. 207 (2012).

As New York City Mayor Michael Bloomberg left office, commentary on his public health initiatives abounded; the reviews ranged from lauding him as an innovative pioneer to painting him as a meddling nanny-in-chief. At the core of these contrasting views lies a sharp divergence in how commentators understand the scope of the state’s proper interest in protecting its citizens from today’s primary threats to their health, threats posed by chronic and non-communicable conditions such as obesity, diabetes, heart disease, and cancer. Does the state’s interest in protecting public health—and thus its police power to advance that interest—extend to combating such conditions’ growing prevalence? Or is the state’s public health authority limited to addressing health threats like those that historically have occupied public health officials, threats like communicable diseases, tainted food, and unsafe water? In short, what makes health threats “public”?

Lindsay Wiley’s article “Rethinking the New Public Health” reconsiders this debate and suggests a novel approach to finding a middle path between the public health expansionists (who view any problem diminishing the health and longevity of a significant number of people as a public health problem subject to regulatory intervention) and the public health minimalists (who would confine the state’s regulatory authority to addressing those collective threats against which responsible individuals cannot protect themselves). By identifying and analyzing a common strand of thought in public health and public nuisance law, Wiley provides a theoretical basis for identifying those “public bads” that are properly targets of public health interventions. Wiley would define those “public bads” as having not only economic, but also epidemiological meaning. Continue reading "What Makes Health “Public”? Finding a Middle Path"

Rethinking Domestic Violence, Rethinking Violence

For decades, I have felt quite Janus-faced about gender crime laws. My feminist face cringes at the thought of widespread sexual and nonsexual violence against women occurring with utter impunity. My anti-authoritarian face furrows in consternation at reports of mass incarceration, prison abuses, and authoritarian police and prosecuting norms. This personal philosophical dissonance has led me on a quest to figure out whether the United States’s penal system holds any liberatory potential for women, and, if not, what can be done about violent gender subordination. In this vein, I have sought out scholarship that neither repeats the battered women advocates’ mantra that there should be “zero tolerance” for gender crime, nor holds to liberal ideals that instinctively prioritize “neutral” (defendants’) rights. This led me to Leigh Goodmark’s complex, insightful, and no doubt controversial book, A Troubled Marriage: Domestic Violence and the Legal System. The book is meticulous in its research, spanning decades of historical developments in the law of intimate abuse. It brings together many strains of feminist and criminal law theory to formulate a comprehensive re-envisioning of the domestic violence law reform project.

The book consists of two main interventions―a theoretical intervention and a practical intervention. Theoretically, the book critiques “dominance feminism,” a brand of feminist legal theory developed primarily by Catharine MacKinnon, for steering the anti-abuse movement in a prosecutorial direction. While MacKinnon’s writings have far less to do with domestic violence than with rape, pornography, and sexual harassment, the book makes a compelling case that dominance feminism-type ideas were highly influential in the domestic violence arena. Practically, the book calls for “antiessentialist” domestic violence law and policy, meaning that domestic violence reform must be disentangled from popular reductionist characterizations of battered women as non-poor white women subject to brutal violence, who have tried unsuccessfully to separate in the past, and desire batterers’ incarceration but are too afraid to pursue prosecution. For Goodmark, rejecting essentialist images necessitates rejection of most state punitive responses to intimate abuse. The book accordingly advocates reforms “outside the criminal law,” such as truth commissions, batterer inventions, and even microfinance. Continue reading "Rethinking Domestic Violence, Rethinking Violence"

Front-End Duties to the Class

Nick Landsman-Roos, Front-End Fiduciaries: Precertification Duties and Class Conflict, 65 Stan. L. Rev. 817 (2013).

As some may remember, Dallas attorney Fred Baron created an uproar in the legal community in 1993 when he mounted a full-bore attack against the infamous Georgine nationwide asbestos settlement class. In 1997, Laurence Tribe — arguing an array of substantive and procedural objections — ultimately convinced the Supreme Court in Amchem v. Windsor to disapprove that settlement.  Fred Baron, then, largely was responsible for helping to establish that settlement classes are legitimate, but that they must include structural assurances of due process fairness to absent class members.

Less well-known and long-forgotten in Amchem’s wake, Baron also lobbed an array of ethical objections at the settling parties, although the Supreme Court ultimately deflected these challenges. The Georgine settling parties had simultaneously presented the federal district court with a class complaint and a settlement. Baron raised the question of the duties that plaintiffs’ attorneys owed to class members in the absence of a formal class certification at the outset of the litigation. On this, he held two somewhat discordant views. On one hand, he opined that absent a formal class certification at the front-end of class litigation, no class was created and therefore the plaintiffs’ attorneys could not negotiate a settlement on behalf of the class. There was no attorney-client relationship until the class came into existence. Thus, he argued, the entire Georgine settlement was illegitimate and the class could not be bound by a back-end class certification. On the other hand, he argued that an attorney-client relationship existed throughout and class counsel owed fiduciary duties to the class members, even without a filed class complaint. In this regard, class counsel had violated their fiduciary duties to the Georgine class. Continue reading "Front-End Duties to the Class"

Corruption, Partisan Gerrymandering, Theories of Democracy, and the Supreme Court

Deborah Hellman, Defining Corruption and Constitutionalizing Democracy, 111 Mich. L. Rev. 1385 (2013).

Every once in a while you read an article that makes you smack your head and say, “Duh—this is so obvious (and obviously right)—that I can’t understand why I didn’t see it before.” That’s the mark of a terrific article. It says something that is obvious after you’ve read it, but that wasn’t at all obvious (to you, at least) before. Deborah Hellman’s article on the Supreme Court’s treatment of “avoiding corruption” as a justification for campaign finance regulation is terrific in that way.

According to the Court, the First Amendment limits the kinds of corruption that can be targeted by campaign finance regulation. Only quid pro quo corruption—the more or less direct exchange of money given to a candidate for the candidate’s vote or other action on a matter of interest to the donor—counts for First Amendment purposes. Professor Hellman points out that “corruption” is what she calls a “derivative concept.” That is, you can’t say that some activity “corrupts” an institution’s proper operation without specifying beforehand what that proper operation should be. After developing that point with examples from universities (nepotism is bad in hiring faculty members because academic departments are supposed to make decisions based on academic criteria, but preferential admission to selective public schools for siblings of a student already enrolled there might be permissible because of their overall goals), she turns to politics. Continue reading "Corruption, Partisan Gerrymandering, Theories of Democracy, and the Supreme Court"

What Does It Feel Like To Have OIRA Review Your Rule?

Lisa Heinzerling, Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House, Pace Envtl. L. Rev. (forthcoming), available at SSRN.

Ever wondered what it is like—really like—to be an agency official confronting review by the Office of Information and Regulatory Affairs (OIRA) of your agency’s rule? Readers of JOTWELL’s administrative law blog are disproportionately likely to be part of the small group that wonders about such things, and this post has some very good news for them.

Surely, the best way to find out what it is really like to run a rule through OIRA would be to become an insider, serving as a high-ranking official at a major rulemaking agency. Most of us will never have that option. Fortunately for outsiders, a leading administrative law scholar, Professor Lisa Heinzerling of Georgetown University Law Center, did. She left academia for two years to serve as Senior Climate Policy Counsel to EPA Administrator Lisa Jackson from January to July 2009 and then as Associate Administrator of the Office of Policy from July 2009 to December 2010. Now back in the academic fold, she has written a fascinating account of the way that centralized White House review has affected agency rulemaking during the Obama administration. Continue reading "What Does It Feel Like To Have OIRA Review Your Rule?"

Inequality in the Workplace and Beyond

Michael J. Zimmer, Inequality, Individualized Risk, and Insecurity, 2013 Wis. L. Rev. 1 (2013).

In his paper, which was presented as the Thomas E. Fairchild Lecture at the University of Wisconsin Law School, Professor Michael Zimmer does a superb job of explaining how employment has factored into the economic inequality that is so prevalent in our society. Professor Zimmer explains how the middle class is quickly disappearing from the workplace, and how economic mobility is quickly on the decline. Most importantly, he charts a course toward rectifying the existing problems.

In the first part of this paper, Professor Zimmer examines how the current economic volatility has created numerous difficulties for everyday workers. In particular, he explores how the permanent-type relationships between employers and employees are going by the wayside, as businesses have moved toward an independent contractor model that allows them greater flexibility in managing their workforce. As the majority of U.S. workers are employees-at-will, most employees today have little security in their paychecks or in their health and retirement benefits. Professor Zimmer also does an excellent job of exploring how unionization has waned across the country. Thus, while workers still have the ability to organize and overcome employment-at-will, it is becoming far less common for them to do so. Continue reading "Inequality in the Workplace and Beyond"

Linking the Certainty of Death and Taxes

Reid Kress Weisbord, Wills For Everyone: Helping Individuals Opt Out of Intestacy, 53 B.C.L. Rev. 877 (2012).

Testamentary freedom gives a person the right to control the distribution of his or her property upon death. The main way for a person to exercise that right is to execute a Will. In the event a person dies without a Will, his or her estate is distributed based upon the scheme set forth in the applicable intestacy statute. Even though most Americans die without executing Wills, Professor Weisbord is convinced that the decision not to execute a Will is not an indication that a person wants his or her property to be distributed under the intestacy system. Professor Weisbord opines that most people do not understand the consequences of dying intestate.

Professor Weisbord seeks to articulate a reason for the high rate of intestacy. He rejects the argument that people fail to execute Wills because they are afraid to think about their own mortality. To justify his rejection of that argument, Professor Weisbord asserts that people confront and plan for death by using non-testamentary transfer devices like life insurance and retirement plans with death benefit provisions. Professor Weisbord concludes that procrastination is the most plausible explanation for the high rate of intestacy. He maintains that most people procrastinate when it comes to making a Will because the process is complex and intimidating. According to Professor Weisbord, the Will-making process is complicated because the Will has to be attested to by witnesses and drafted using complex legal language. Professor Weisbord states, “In short, simplifying the will-making process would likely reduce testamentary procrastination.” Continue reading "Linking the Certainty of Death and Taxes"

Why Answer?

Nils Jansen, The Idea of Legal Responsibility, O.J.L.S. (forthcoming, 2014) available at SSRN.

Prof. Nils Jansen’s new article, The Idea of Legal Responsibility, is an ambitious work of tort theory. Jansen engages some of the most basic questions of private law.  The article’s rewards are found on two levels.  First, the argument it propounds—that responsibility in tort can be usefully (if not exclusively) framed in terms of restitution– is intriguing and offers another take on corrective justice.  Second, the framework around which Jansen builds his argument – the evolution of the law of restitution in scholastic and early modern European private law– is one that may be unfamiliar to many common lawyers. Jansen’s article make a persuasive case that contained within this history are lessons that transcend the common and civilian divide.

Professor Jansen’s thesis is deceptively simple:  He argues that the best justification for tort liability in many modern legal systems on both sides of the Atlantic is a principle of “responsibility” that has its roots in the doctrine of unjust enrichment.  Early in the article Jansen asserts that the question that all tort theorists in both the common law and civilian legal cultures must answer is, “why be responsible for another’s loss” and that the answer to this question lies in the “moral principle against unjust enrichment” (P. 3).  Yet by the end of the article, Jansen restates his position so that it seems that unjust enrichment is useful today because it helps illustrate the “constitutionalisation” of tort law, a modern phenomenon where the priority of basic human rights determines the variety of tort doctrines that dominate today’s legal landscape.  This tension is interesting and worth considering. Continue reading "Why Answer?"

There’s Math for That! Delta Value and the Constructive Sale Rules

Thomas J. Brennan, Law and Finance: The Case of Constructive Sales, Ann. Rev. Fin. Econ. (forthcoming 2013) available at SSRN.

Tom Brennan’s recent paper, Law and Finance: The Case of Constructive Sales explains that constructive sale guidance and case law fail to take account of volatility.  To fix the omission, Brennan explains, use the delta value of the constructive sale transaction relative to the underlying asset to determine how close the transaction is to a sale.  Reg writers, take note.

When do you own something, or more to the point, when have you sold it?  In tax terms this presents the question of realization.  And on it turns income tax planning’s central tenet:  defer the payment of tax as long as possible.  Preferably until the angel of death arrives with the gift of stepped-up basis, expecting only the small tip of possible estate tax liability. Continue reading "There’s Math for That! Delta Value and the Constructive Sale Rules"

Local Prosecutors as Deportation Gatekeepers

Stephen Lee, De Facto Immigration Courts, 101 Cal. L. Rev. 553 (2013).

In De Facto Immigration Courts, Stephen Lee untangles part of the thicket that is immigration law. Immigration law is a dense and unique fusion of administrative law, constitutional law, criminal law, and more. It is these intersections, in the context of the very human story of migration, which give immigration law its essence. Professor Lee’s article identifies and explores an underexposed phenomenon arising from immigration law’s dependence on criminal law and criminal procedure.

Professor Lee’s article focuses on how events in state and local criminal law proceedings affect eventual federal civil law agency removal (deportation) proceedings in immigration courts. Specifically, he looks at the impact of state and local prosecutors’ charging and plea choices in criminal cases in eventual agency immigration law proceedings. He argues that criminal court systems are functioning as de facto immigration courts. Continue reading "Local Prosecutors as Deportation Gatekeepers"

New Jotwell Section: Lex

Today we inaugurate a unique new Jotwell section. Unlike our ordinary single-subject Jotwell sections, the Jotwell Lex Section will feature a selection of legal topics that do not necessarily have the publishing volume to carry a section of their own. The Lex section’s initial list includes Art & Cultural Property Law, Education Law, Election Law, Energy Law, Environmental Law, Immigration, and Librarianship & Legal Technology, with a stellar cast of founding Contributing Editors.

The first posting in the Lex section, on Immigration Law, is Local Prosecutors as Deportation Gatekeepers by Jill Family.

Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

Reimagining a New Ending to “Reimagining Legal Services”

Spoiler alert: This Jotwell review reveals the plot of Mitchell Kowalski’s book, Avoiding Extinction: Reimagining Legal Services for the 21st Century.

In recent years, those of us who are interested in legal services market innovation and disruption are often presented with two different types of source materials to satisfy our curiosity. First, there is blue-skies thinking—ideas that might ultimately become mainstream but not in the immediate future. Secondly, there is research, which examines innovative market behaviours, delivered by actual providers to real clients. However, what is generally missing from such works are discussions about how either of these changes will impact existing lawyers who find themselves caught up in this period of transition. And this is the main attraction of Mitch Kowalski’s approach: By writing a novel, Avoiding Extinction: Reimagining Legal Services for the 21st Century, Kowalski is able to offer a human-focused examination of these mega-market changes—from the perspectives of individual clients and private practice lawyers. Continue reading "Reimagining a New Ending to “Reimagining Legal Services”"

Gay Rights in the Workplace

Katherine Turk’s recent article, ‘Our Militancy is in Our Openness’: Gay Employment Rights Activism in California and the Question of Sexual Orientation in Sex Equality Law, offers a deeply researched history of gay rights activism in California—“the epicenter of the gay employment rights movement” (P. 426)—that engages important questions about the benefits and limits of different legal strategies. In this detailed local history of the gay employment rights movement, Turk discusses the work of a number of advocacy organizations in the state—including the ACLU of Southern California, the Los Angeles Gay and Lesbian Center, the Metropolitan Community Church, the Society for International Rights, the Committee for Homosexual Freedom, the Committee on Rights within the Gay Community, and the National Gay Rights Association—through which activists pressed for equal rights in the workplace. Although this movement was dominated by gay men, Turk makes clear that it is not a story of a fractured movement. Instead, activists throughout the gay community understood the prosaic importance of employment rights, and the employment nondiscrimination litigation at the center of her narrative “embodied some of the most universal and consistent claims at the heart of the modern gay rights movement.” (P. 428.)

Activists called for a new model of workplace rights, as they sought legal protections that combined the equality arguments used by women and people of color with gay liberationist arguments that embraced sexual orientation. In doing so, they contended “that a worker’s gender and sexual orientation were irrelevant to his or her ability to perform a job, but that the freedom to signal those identities was an essential element of workplace equality.” (P. 426.) Thus, the gay employment rights movement rejected equality arguments based in sexual privacy, “which assumed that people could—or should—leave their sexual identity behind at the office door.” (P. 435.)  Instead, activists argued, gay and lesbian workers should be able to participate in the workplace in the same way their heterosexual colleagues did—as workers with professional skills and rich personal lives. Continue reading "Gay Rights in the Workplace"