Yearly Archives: 2015

Thank You

Jotwell will be taking a short winter break. We’ll resume publication on Monday Jan 4, 2016, with our new five-times-per-week schedule during most of the academic year.

As we look back on 2015, we would like to thank our editors, and authors, and especially our readers for all of your interest and support. And I’d like to add a special thank-you to the contributors to our first, and probably annual, fund-raising appeal. We like you (lots):

Kenneth S. Abraham
Karen L. Abrams
Larry Alexander
Gerry W. Beyer
Francesca E. Bignami
Bennett Capers
Jessica Clarke
James Donovan
David F. Engstrom
James E. Fleming
Erik F. Gerding
Susan Grover
Woodrow N. Hartzog
Allison K. Hoffman
Chris J. Hoofnagle
William Hubbard
Julia Hughes
Isabel V. Hull
Lily Kahng
Anil Kalhan
Edward Kleinbard
Donald J. Kochan
Kathryn E. Kovacs
Anna Laakmann
Mark A. Lemley
Yvette J. Liebesman
Daniel Monk
Alexandra Natapoff
Douglas NeJaime
Michael Pardo
Nicole Porter
John F. Preis
Margaret J. Radin
William Sage
Joanna Schwartz
Peter M. Shane
Jacob S. Sherkow
David Sherwyn
Clyde Spillenger
Kevin M. Stack
Katherine Strandburg
Rebecca L. Tushnet
Jonathan T. Weinberg
David Zaring
Jonathan L. Zittrain

Please note that it’s never too late to help support Jotwell.

See you in the New Year!

 
 

A Dormant Commerce Clause Approach to Interstate Electricity Transmission

Alexandra B. Klass & Jim Rossi, Revitalizing Dormant Commerce Clause Review for Interstate Coordination, 100 Minn. L. Rev. 129 (2015).

In a 2013 report, the American Society of Civil Engineers awarded the U.S. electricity grid the grade “D+” noting that aging components and limited maintenance contribute to a growing number of brownouts and blackouts. Indeed, the 450,000 miles of high-voltage transmission lines that connect America’s nearly 7,000 power plants with some 6 million miles of lower-voltage distribution networks are based on a grid architecture that dates back to the 1880s. The average transformer in the national power grid is 42 years old and, hence, two years past its projected useful life. Every year power outages cost the economy billions of dollars in lost output and wages, spoiled inventory, production delays, among others. Meanwhile, successful mitigation of global climate change urges the transition to a low-carbon energy economy fueled by solar, wind, and other renewables. But the best renewable resources are often located far from population centers, such as wind resources in the upper Midwest and Plains states or solar resources in the desert southwest. As a result, the U.S. electricity grid requires both modernization and expansion calling for $1 trillion of investment to maintain even current levels of grid reliability. In Revitalizing Dormant Commerce Clause Review for Interstate Coordination, professors Alexandra B. Klass and Jim Rossi take stock of the regulatory impediments to upgrading and expanding the electricity grid, and propose a fresh take on dormant Commerce Clause review to incentivize greater interstate coordination on long-distance transmission projects.

Notwithstanding the vast macroeconomic benefits of an upgraded and expanded electric grid, transmission lines remain highly unpopular and subject to strong “not-in-my-backyard” reactions – at the individual and institutional level alike. Drawing on a series of precedents, professors Klass and Rossi illustrate how states use their virtually exclusive authority over electric transmission line siting and eminent domain to block and, ultimately, defeat interstate transmission projects. “In the context of multi-jurisdictional energy infrastructure projects, a single state or local holdout can keep an infrastructure project from going forward.” Such regulatory holdouts are especially popular among “pass-through” states that often struggle to identify benefits to local constituents from transmission lines that originate and end out-of-state. In the words of Klass and Rossi, “interest group dynamic[s] along with many existing siting and eminent domain laws enable, and may even encourage, these kinds of state and local government holdouts.” Continue reading "A Dormant Commerce Clause Approach to Interstate Electricity Transmission"

 
 

What Happens if We Call Discrimination a Tort?

Sandra Sperino, “Let’s Pretend Discrimination is a Tort,” 75 Ohio St. L.J. 1107 (2014).

Sandra Sperino’s Let’s Pretend Discrimination is a Tort, 75 Ohio St. L.J. 1107 (2014), argues that if the United States Supreme Court is really serious about treating Title VII and other federal anti-discrimination laws as nothing more than extensions of tort law, then the current Supreme Court’s anti-plaintiff approach is insupportable. Sperino does not hide her personal disapproval of the current trend to “tortify” federal anti-discrimination law (especially Title VII), but she recognizes that the fight against discrimination may have to be fought “through any means necessary” (to quote Malcolm X, not Sperino). So her article is a bit legal jujitsu – to take the Supreme Court’s most favored tool to weaken Title VII, and to use it to make federal anti-discrimination law friendlier to plaintiffs than it has ever been.

In this essay I review the three attributes of common law tort that Sperino finds especially useful for her project of expanding the reach of federal anti-discrimination law. I then raise questions about Sperino’s assumption about common law tort. The features found in tort law that Sperino finds so congenial are not universal features of common law tort, but only found in those parts of tort that are concerned with one’s right to bodily integrity and security in land. Does it therefore make sense to argue (as Sperino does) – even for rhetorical purposes – that the interests Congress chose to protect in federal anti-discrimination law are akin to bodily integrity and security interests, or, rather (as I argue), more like other interests protected quite differently in tort, such as economic interests and interests in emotional tranquilty? Continue reading "What Happens if We Call Discrimination a Tort?"

 
 

Rulemaking’s Puzzles

Connor Raso, Agency Avoidance of Rulemaking Procedures, 67 Admin. L. Rev. 1 (2015), available at SSRN.

It is puzzling. Administrative agencies continue to produce thousands of rules each year in the face of an accumulation of procedural requirements that administrative law scholars say have ossified rulemaking and even led some agencies to retreat from rulemaking altogether.

How can this be? How can federal regulatory output be “rising steadily for decades” notwithstanding procedures that have created a supposedly “confusing labyrinth through which agencies seeking to adopt rules must grope”? As someone who has long been puzzled by the seeming contradiction between expectations and reality, I liked reading Connor Raso’s recent article, Agency Avoidance of Rulemaking Procedures, because it offers a persuasive, even if partial, answer to a core conundrum about rulemaking, along with thoughtfully-analyzed, supportive empirical evidence. Continue reading "Rulemaking’s Puzzles"

 
 

Can We Talk? Wills, Trusts and Estates Critical Issues that Are Ripe for Discussion

Bridget J. Crawford and Anthony C. Infanti, A Critical Research Agenda for Wills, Trusts, and Estates, 49 Real Prop. Tr. & Est. L.J. 317 (2014), available at SSRN.

A Critical Research Agenda for Wills, Trusts, and Estates by Professors Bridget J. Crawford and Anthony C. Infanti is a ”must read” for wills, trusts, and estates practitioners and scholars. The authors highlight key contributions in the category they loosely refer as “critical trusts and estates scholarship” and challenge each of us to add our voices to these important issues. Some of the works that Crawford and Infanti highlight were written by trusts and estates professors, others were penned by professors who teach in other areas of the law, and some are even authored by non-lawyers.

Crawford and Infanti remind us that issues of race, gender, sexual orientation, socio-economic class, and disability should not be relegated to just a passing reference in scholarly works. As both scholars and practitioners, we need to examine how and why the law has developed the way that it has, and how historically disenfranchised groups have been affected. The variety of works highlighted by Crawford and Infanti reminds us that even in the “money” area of law—“tax and wills,” there are critical issues that need to be discussed inside and outside of the legal academy. Continue reading "Can We Talk? Wills, Trusts and Estates Critical Issues that Are Ripe for Discussion"

 
 

Exploring the “How” of Tax Legislation

Much of tax scholarship—past and present—focuses on the “what” of taxation: the substantive content of the tax laws, and what that content is or ought to be. As Leigh Osofsky recently observed in a delightful series of posts on PrawfsBlawg (see here, here, here, here, and here), a growing trend in tax scholarship considers tax administration, which one might describe as the “how” of taxation, or at least part of it. A separate, but related, strain of tax scholarship concerns the “how” of taxation from a different perspective, that of the tax legislative process. Two recent articles published last year offer interesting insights into this aspect of taxation: Michael Doran’s Tax Legislation in the Contemporary U.S. Congress, and Rebecca Kysar’s The ‘Shell Bill’ Game: Avoidance and the Origination Clause.

Doran styles his article as an update of our understanding of the tax legislative process. He describes the old process as a tug-of-war between “tax instrumentalism,” with Congress “us[ing] the Internal Revenue Code to pursue nontax economic and social objectives” and cluttering up the Code with “particularistic provisions setting out narrow rules and exceptions for specific constituents and interest groups,” and “tax reform,” with Congress repealing those instrumentalist provisions. Doran posits that, since the late 1980s, gridlock has become the norm. (Pp. 555-556.) At the same time, he suggests that “major items of tax legislation” adopted during that period are “strikingly ‘clean’—that is, nonparticularistic.” To support this proposition, Doran looks at 25 years of “major tax legislation,” listed in a handy table. He documents a decline in the length of tax legislation and draws from that admittedly “very rough proxy”—in addition to his own impressions—that contemporary tax legislation is simply less particularistic than in the past. Continue reading "Exploring the “How” of Tax Legislation"

 
 

Against the Backdrop of Dignity and Equality, The Non-Absoluteness of Property Rights

AJ van der Walt, The Modest Systemic Status of Property Rights, 1 J. L. Prop. & Soc’y 15 (2014).

We must stop imagining that property is the saviour of the legal system, the knight on the white steed, or the guardian of every other right. That was the lesson Andre van der Walt, South African Research Chair in Property Law at Stellenbosch University, taught the assembled audience when he delivered the Keynote Address at the 2014 Annual Conference of the Association of Law, Property and Society. As Professor van der Walt writes in the landmark article based on that memorable address: “I prefer to see property as a gaggle of cleaners who move in after everyone has left, brandishing buckets and mops, cleaning up the property debris once the real work of maintaining the democratic legal system has been completed.” (Pp. 105-106.) In this article, van der Walt reflects on the systemic status of property rights within a wide frame of constitutional, “non-property” rights. Moving from normative theory to doctrinal analyses of the case law of South African courts implementing the Constitution of 1996, as well as examples from the United States, Canada, the United Kingdom, and Germany, the article explores how property rights are, and should be, balanced against non-property rights, including rights to life, human dignity, and equality.

This paper comes at a fascinating moment for property theory, as the politics of property law—particularly in “advanced” democracies like the United States and the United Kingdom—are being tested against a backdrop of rising socio-economic inequality, dramatically accelerated following the global financial crisis of 2008 and the “austerity” politics that followed. As the claims that markets left to their own devices are efficient and stable—or that property is an effective guardian of other rights (Pp. 32-42)—have been challenged, the landscape of unequal opportunity has been exposed, reverberating through property scholarship to spark a renewed interest in property law’s methodologies and discursive traditions across the global property community. Van der Walt explores these debates in the first section of his paper. Continue reading "Against the Backdrop of Dignity and Equality, The Non-Absoluteness of Property Rights"

 
 

The History of the Advanced Degree in Law in the United States

In the United States, the most advanced degrees offered by law schools are, counter-intuitively, predominantly granted to foreigners. The LLM, or master in laws, has become a staple for law graduates from other countries hoping to further their careers back home, find a job in the U.S., or merely spend a year enjoying a fun experience abroad. The JSD or SJD, or doctorate of science and law, is generally targeted at foreigners wishing to teach, either back in their own country or hoping to find a job on the U.S. academic market. Meanwhile, most U.S. law students, including those interested in a teaching career, never even consider one of these advanced degrees, at least until the recent creation of Yale’s PhD in law.

How did this seemingly paradoxical situation come to be, where the most advanced law degrees are largely ignored by U.S. students, but embraced by foreigners? Gail Hupper does a skillful job in her recent article, Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law, explaining the history of this phenomenon, particularly the story of the JSD/SJD. The article was the focus of a recent symposium issue of the New England Law Review, in which Bruce Kimball, Carole Silver, and Paulo Barrozo provided commentary on Hupper’s piece. Continue reading "The History of the Advanced Degree in Law in the United States"

 
 

Legal Export and the Transformation of American Identity

Today, as a matter of both foreign policy and legal practice, comparative law tends to be a one-way street in the United States. In recent decades, the U.S. has been involved in countless constitution-writing and rule of law projects across the globe. But few foreign frameworks have migrated home, where foreign law is often met with outright judicial and political hostility.

Jedidiah Kroncke, in his learned and incredibly incisive new book, The Futility of Law and Development: China and the Dangers of Exporting American Law, reminds us that this is hardly how American policymakers have always approached the international community. In fact, during the revolutionary period many of the founders like Benjamin Franklin, Thomas Jefferson, and James Madison were avowed legal cosmopolitans, curious to draw from foreign experiences for American republican institutions, including the example of China’s civil service system, national taxation structure, and methods of centralized resource management. Indeed, as late as the Progressive period, a “transatlantic moment” led American reformers–confronting shared problems of industrialization and inequality— to see new European innovations as worthy of replication at home. How did this change and what has it meant for American legal culture and reform politics? Continue reading "Legal Export and the Transformation of American Identity"

 
 

Privacy and Freedom of Speech in the Internet Era

Ronald J. Krotoszynski Jr., Reconciling Privacy and Speech in the Era of Big Data A Comparative Legal Analysis, 56 Wm. & Mary L. Rev. 1279 (2015).

Freedom of speech can be regarded as the product of the modernization process that occurred in Europe during the seventeenth and eighteenth centuries. As people moved out of the narrow confines of their rural villages, and the population of the towns expanded beyond the narrow limits of craft guilds and commercial families, a public culture developed within and among the rapidly expanding urban centers of the Early Modern era. In these settings, the gradual relaxation of the legal sanctions against various types of speech was accompanied by a parallel attenuation of the social sanctions that constrained such speech. The shaming and shunning that could occur in a village or small town ceased to function in the burgeoning urban context. People expressing dissident views could find like-minded individuals with whom to socialize and achieve a degree of anonymity in the more mobile and pluralistic world of broad boulevards, large financial or industrial organizations and bureaucratized public institutions.

As Ronald Krotoszynski points out in a recent article that I like lots, the advent of modern communication technology places both sources of our hard-won freedom of expression at risk. It reintroduces shaming and shunning penalties by enabling those who are offended by a particular statement to generate condemnations that will be permanently attached to an individual’s Net presence and thus publicized throughout society. In addition, the government’s access to big data enables it to impose indirect threats to free speech in the form of wide ranging, coordinated surveillance of the individual’s activities. Even if the legal system continues to prohibit direct criminalization of speech, the possibility of prosecution for other crimes, or the government’s unauthorized but untraceable disclosure of sensitive information, may well produce a chilling effect that rivals the force of criminal penalties. Continue reading "Privacy and Freedom of Speech in the Internet Era"

 
 

Authorship, Attribution, and Audience

When the architect Philip Johnson was late in remitting payment for a sculpture he had purchased from the artist Robert Morris, Morris did not, apparently withhold the sculpture itself. Rather, he created an addendum, a note that read as follows:

The undersigned, Robert Morris, being the maker of the metal construction entitled Litanies, described in the annexed Exhibit A, hereby withdraws from said construction all aesthetic quality and content and declares that from the date hereof said construction has no such quality and content.

Johnson purchased the document, and the deed — whatever it was — was done. The sculpture and the document are now both part of the collection of the Museum of Modern Art in New York.

Whether Morris’s act was the result of true pique or only a bit of cheekiness is unclear. But it gives rise to a set of familiar and still debated questions: Was the “metal construction” no longer art because its “maker” no longer wished to stand by its aesthetic qualities? And, if so, does that mean that the sculpture no longer had an artist but had merely a manufacturer? Does authorship (and, throughout, I will use the term to encompass all modes of creative production) require at least artistic conceptualization? Or is skillful craftsmanship sufficient, so long as the relevant community perceives aesthetic value in the work?

Two recent book chapters give thoughtful consideration to these issues. Continue reading "Authorship, Attribution, and Audience"

 
 

Reconceptualizing Health Law to Incorporate Justice-Based Concerns

Lindsay F. Wiley, From Patient Rights to Health Justice: Securing the Public’s Interest in Affordable, High-Quality Health Care, Cardozo L. Rev. (forthcoming), available at SSRN.

One of the challenges of teaching Health Law is that the course covers so many distinct areas of law that it can be hard for students to find an overarching theme, beyond the obvious one that all of the issues have something to do with doctors, patients, or hospitals. I was therefore very pleased to come across Lindsay Wiley’s new article, From Patient Rights to Health Justice: Securing the Public’s Interest in Affordable, High-Quality Health Care. In this article, Wiley examines analytical models previously developed by health law scholars and proposes a new model designed to place greater emphasis on collectivist concerns. The article should appeal not only to health law scholars, but also to anyone interested in how legal analytical frameworks can be used both to explain past developments and to reshape the terms of ongoing policy debates.

Wiley begins by examining four main models of health law, which she calls “professional autonomy,” “patient rights,” “market power,” and “health consumerism.” Under the professional autonomy model, which was dominant in the first half of the twentieth century, most legal and policy questions about health care were considered to be within the exclusive competence of professionals. This model eventually gave way to the patient rights approach, which sought to use the law to protect patients’ ability to make autonomous decisions, to improve quality, and to facilitate access. The market power model, which emerged in the 1970s, began to look at health care as an economic system, with a particular focus on the unique characteristics of health care markets that can distort the normal application of market forces, such as information asymmetries and the ubiquity of insurance. Finally, the health consumerism model, which Wiley describes as a “melding” of the patient rights and market power models, aims to draw on the power of markets in the service of empowering patients and improving the quality of care. Continue reading "Reconceptualizing Health Law to Incorporate Justice-Based Concerns"

 
 

A Fresh Look at Qualified Immunity

Aaron Nielson & Christopher J. Walker, The New Qualified Immunity, 87 S. Cal. L. Rev. (forthcoming 2015), available at SSRN.

Qualified immunity—the doctrine that prescribes whether government officials alleged to have committed constitutional violations should be immune from suit—has traveled a winding path. It asks two questions: whether a constitutional violation was actually committed, and whether the constitutional right in question was clearly established at the time of the violation. If the answer to either or both questions is “no,” then the government official is entitled to qualified immunity and the suit against her is dismissed.

Over the past two decades, the question of whether and in what order courts should decide these two questions has preoccupied the Supreme Court. The Court indicated in Wilson v. Layne (1996) that it generally was better for courts to resolve the constitutional merits question first, and then held in Saucier v. Katz (2001) that courts were required to do so. Its reasoning, in both instances, is that courts must articulate constitutional law in order to guide the conduct of government officials in the future. Just eight years later in Pearson v. Callahan, however, the Court shifted course, holding that deciding the constitutional merits question was discretionary, not mandatory. Continue reading "A Fresh Look at Qualified Immunity"

 
 

Marriages, Contracts, and Deals

Martha M. Ertman, Marital Contracting in a Post-Windsor World, 42 Florida St. L. Rev. 479 (2015).

Henry Maine famously claimed that societies tend to move from status to contract.1 Martha Ertman has been one of a number of prominent family law scholars who have chronicled, and at appropriate occasions critiqued, the way that family law has increasingly allowed enforceable agreements to modify or supplement the status relations of marriage and parenthood. In Marital Contracting in a Post-Windsor World (and also in her wonderful recent book, Love’s Promises (Beacon Press, 2015)), Ertman shows the intricacies of family law agreements: how they include not only status rules, and some default rules subject to variation by express agreement, but also certain agreements and exchanges that are not enforceable through the courts—but may be supported by social conventions and expectations.

Ertman focuses on three elements of the “pair bond exchange” that occurs with couples: money, housework, and sex. As she explains, couples (married and unmarried, opposite-sex and same-sex) make whatever arrangements they wish about these matters while together. These agreements are made in the shadow of social expectations, market forces, and state rules about which agreements are enforceable and what monetary dispositions will be imposed on spouses at divorce. For example, the decision about which partner stays at home to take care of children often reflects gender expectations in society combined with gender discrimination in wages (when the market pays men more than women for the same work, then it will frequently make better sense economically for the husband/male cohabitant to work rather than the wife/female cohabitant, if one of them needs to be at home full-time). Throughout, the article helpfully grounds its conclusions about pair-bond exchanges in a wide range of sociological studies. Continue reading "Marriages, Contracts, and Deals"

 
 

Not So Subversive After All: Gay Men’s and Lesbians’ Wills

Arguments in equality litigation, speech in parliamentary hearings, and campaigns to sway public opinion need a simple, punchy message. We’re just like you. Marriage is about love and we love too. Mariage pour tous. As I have observed elsewhere, the end of litigation and political lobbying may open space for research of a particular character. Research unconnected to an immediate political imperative such as the push for equal marriage may have the luxury of asking more questions than it answers. It may challenge or complicate assumptions about what would best deliver equality to a group. With the media spotlight aimed elsewhere, one may even acknowledge a group’s internal diversity and potential fractures – and ask how solidly it hangs together.

Sue Westwood’s lovely paper on wills by older lesbians and gay men occupies this space. With civil partnership around for more than a decade and same-sex marriage enacted in England and Wales (2013), it’s more comfortable to bracket formal equality’s discourse of sameness and ask about difference. Drawn from the wider socio-legal study of Westwood’s doctoral research, the paper presents findings from interviews with 15 older lesbians and gay men. Westwood reports difference between heterosexuals and her research participants and within the latter group. We see distinctions among participants based on class, marital status and family form, and – uncomfortably for those cleaving to the ideal of a single LGBT “community” – sex. A couple of gay respondents admit candidly that their male-centred friendship networks result from avoiding women. Continue reading "Not So Subversive After All: Gay Men’s and Lesbians’ Wills"

 
 

The Practice and Theory of Secure Data Releases

Ira Rubinstein & Woodrow Hartzog, Anonymization and Risk, 91 Wash. L. Rev. (forthcoming 2016), available on SSRN.

In the current Age of Big Data, companies are constantly striving to figure out how to better use data at their disposal. And it seems that the only thing better than big data is more data. However, the data used is often personal in nature and thus linked to specific individuals and their personal details, traits, or preferences. In such cases, sharing and use of the data conflict with privacy laws and interests. A popular remedy applied to sidestep privacy-based concerns is to render the data no longer “private” by anonymizing it. Anonymization is achieved through a variety of statistical measures. Anonymized data, so it seems, can be sold, shared with researchers, or even possibly released to the general public.

Yet, the Age of Big Data has turned anonymization into a difficult task, as the risk of re-identification seems to be constantly looming. Re-identification is achieved by “attacking” the anonymous dataset, aided by the existence of vast datasets (or “auxiliary information”) from various other sources available to the potential attacker. It is, therefore, difficult to establish whether anonymization was achieved, whether privacy laws pertain to the dataset at hand, and if so, how. In a recent paper, Ira Rubinstein and Woodrow Hartzog examine this issue’s pressing policy and legal aspects. The paper does an excellent job in summarizing the way that the current academic debate in this field is unfolding. It describes recent failed and successful re-identification attempts and provides the reader with a crash course on the complicated statistical methods of de-identification and re-identification. Beyond that, it provides both theoretical insights and a clear roadmap for confronting challenges to properly releasing data. Continue reading "The Practice and Theory of Secure Data Releases"

 
 

If We Shouldn’t Punish Psychopaths, May We Still Blame Them for Bad Character? Perhaps Not.

Dana Kay Nelkin’s recent work brings together an important dilemma in the criminal law and a key distinction within it. The result is that our understanding is furthered on both scores. The dilemma is psychopathy. Psychopaths lack affective capacity. They cannot appreciate the wrongfulness behind criminal law’s prohibitions. Without this ability, is it fair to criminally blame and punish them? Although the Model Penal Code specially exempts psychopathy from its definition of mental illness, many theorists believe that appreciating moral reasons is a prerequisite to just punishment.

Now, for the distinction. One move that some criminal law theorists will make is to argue that although we have a judgment that someone has a bad character, the person has not committed a culpable act and hence cannot be punished. If a person enjoys killing and becomes an executioner, not because she wants to inflict deserved punishment but because she wants to kill, ought we to think that she is unjustified or instead that she is just a bad person behaving justifiably? If a driver fails to notice a pedestrian because he is checking out his reflection in the mirror, is this vanity criminal negligence or bad character? The distinction between criminal blaming and character assessing is one way that we can sort cases that seem bad in one respect and yet not properly the object of criminal sanction. Continue reading "If We Shouldn’t Punish Psychopaths, May We Still Blame Them for Bad Character? Perhaps Not."

 
 

Appraisal Arbitrage

Minor Myers & Charles R. Korsmo, Appraisal Arbitrage and the Future of Public Company M&A, Wash. U. L. Rev. (forthcoming 2015), available at SSRN.

Developments in corporate law center on two topics these days—shareholder voting and merger litigation.  One of the more surprising of the many twists and turns in the latter area is the appearance of appraisal arbitrage. The arbitrage characterization applies because the petitioner under section 262 of the Delaware corporate code takes advantage of the section’s standing rule to buy the transferor’s stock after the record date for the vote on the merger, based on a financial analysis that signals a good chance to prove a valuation in excess of the merger price. A number of special-purpose hedge funds have cropped up as players—Merion Capital, now a frequent appraisal plaintiff, raised $1 billion for a fund dedicated to appraisal claims in 2013. The volume of petitions has spiked up.

Volume has increased substantially despite the fact that appraisal is supposed to be brutally unfriendly to plaintiffs, partly because class actions are prohibited and partly because the plaintiff bears the burden to prove every dollar of damages through a ground up valuation of the company. The surge casts a negative light on the permissive the standing rule, which, in contrast to the blocks erected in representative litigation, facilitates buy-ins. The surge in filings also bids reconsideration of the open-ended approach to valuation techniques followed in the Delaware courts. Finally, it calls into question the fed funds plus 5% interest rate applied to appraisal recoveries under section 262. It is alleged that at a time when interest rates have fallen to little more than zero, a petitioner with a substantial stake can turn a profit on a return of the merger price alone, given an assured 5% yield during the litigation period. Critics are pressuring Delaware to amend the statute to turn back the plaintiffs.

In Appraisal Arbitrage and the Future of Public Company M&A, Myers and Korsmo turn back the critics. Continue reading "Appraisal Arbitrage"

 
 

The Long Arc of the Accommodation Debate

Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stanford L. Rev. 1205 (2014).

Two frequent questions arise about the Jotwell project. Should we focus more on deserving articles that haven’t received much attention? And does liking an article “lots” preclude selecting articles one disagrees with? Today’s contribution does not do much to address the first concern. The article discussed here is by a well-known author, was well-published, and has already garnered attention—although less than it deserves, in my opinion. But this Jot does more or less meet the second criterion.

Samuel Bagenstos’s excellent article, The Unrelenting Libertarian Challenge to Public Accommodations Law, has troubled me for a year now. Anyone seeking to elaborate, and in some cases defend and expand, the developments it describes and, I think, implicitly criticizes, must reckon with it. As this Jot argues, however, so must supporters of Title II, who may find that their arguments defending it, and their reassurances about its scope and limits, are equally subject to the undermining logic of Bagenstos’s own critical—or Critical, if you like—argument. As he concludes, the conflict over just “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres” is a real one, and unlikely to go away, for reasons that apply to both sides in the debate. Continue reading "The Long Arc of the Accommodation Debate"

 
 

Property Law, Law & Economics, and Means for Reaching Distributive Goals

Lee Anne Fennell & Richard H. McAdams, The Distributive Deficit in Law and Economics, Minn. L. Rev. (forthcoming 2015), available at SSRN.

Lee Anne Fennell and Richard H. McAdamsThe Distributive Deficit in Law and Economics is framed as a law and economics article but makes a significant contribution to property theory. The Distributive Deficit takes on the standard law and economics assertion “that tax is strictly superior to legal doctrine as a means of redistributing income,” (p. 7) and the related assumption “that the distributive pattern in a society will be invariant to the political form of redistribution.” (p. 14) As Fennell and McAdams note, the general acceptance of both tax superiority and the “invariance hypothesis” in law and economics can be credited largely to the work of Louis Kaplow and Steven Shavell (see here, here, and here). Fennell and McAdams’ article is a devastating and wholly convincing critique of this line of reasoning, grounded in the failure of standard law and economics approaches to take into account political action costs. Tax superiority depends on rule and tax changes having zero transaction costs when it comes to establishing the new order. Yet, as Fennell and McAdams’ argue, political action costs can vary depending on preferred mechanism. Put differently, the theoretical possibility of a tax-and-transfer solution does not necessarily mean a redistributive rule change should automatically be discarded: given political action costs, a rule change may still be more efficient than a tax-based approach.

Fennell and McAdams’ contribution is particularly valuable at this point in property law scholarship. The appropriateness and power of law and economics approaches to property, especially the information-cost theories championed by Henry Smith and Thomas Merrill, have taken center stage in debates between progressive and conservative property scholars. Tellingly, in 2015 the AALS Property Section chose to dedicate the section’s panel to “the place and scope of economic analysis.” Those seeking to diminish the importance of law and economics in property law have argued that economic-approaches alone cannot capture all that property law seeks to accomplish and that economic values are only one of many pluralistic values of import. That is to say, recent criticism has been that of the “outsider,” seeking to undermine the conservative tendency of law and economics-based property scholarship not by arguing that law and economics is a bad tool but that it should not be the only approach. Written by two University of Chicago professors, The Distributive Deficit is more of an “insider” attack. It does not question the core tenets of law and economics, it simply shows that on efficiency grounds the oft-repeated conclusion that tax-and-transfer is necessarily a superior means of redistribution compared to rule changes is incorrect. But it is an important intervention for property scholars because without it, the idea that property law should be based upon the notion of tax superiority—advanced by Yale Law professor Robert Ellickson in a recent article—might be uncritically accepted. Continue reading "Property Law, Law & Economics, and Means for Reaching Distributive Goals"

 
 

New Jotwell Section: Property

Today we inaugurate a new Jotwell section on Property, edited by Donald J. Kochan, Professor & Associate Dean for Research and Faculty Development at the Chapman University Dale E. Fowler School of Law, and Tanya Marsh, Professor of Law at Wake Forest University School of Law. Together they have recruited a stellar team of Contributing Editors.

The first posting in the Property section is Property Law, Law & Economics, and Means for Reaching Distributive Goals by Ezra Rosser. Continue reading "New Jotwell Section: Property"

 
 

Shining Some Light into the Black Box of Agency Statutory Interpretation

Christopher J. Walker, Inside Agency Statutory Interpretation, 67 Stan. L. Rev. 999 (2015).

Agencies routinely interpret statutes while drafting rules. Yet very little is known about how agency rule drafters approach statutory interpretation when writing rules. In a fascinating article that was recently published in the Stanford Law Review, Professor Christopher J. Walker shines some much needed light into this area.

Walker’s article is modeled off of important empirical work Lisa Bressman and Abbe Gluck previously conducted that studied congressional drafters’ knowledge of and use of different administrative law doctrines and interpretive tools. Rather than focusing on congressional drafters as Bressman and Gluck already have done, Walker’s article focuses on how agency rule drafters approach statutory interpretation when writing rules. Walker’s article reports the findings of a detailed 195-question survey that he administered online over a five-month period to agency rule drafters who work at seven executive agencies (Agriculture, Commerce, Energy, Homeland Security, Health & Human Services, Housing & Urban Development, and Transportation) and two independent agencies (the Federal Communications Commission and the Federal Reserve). Walker sent the survey to 411 agency officials within these agencies, and 128 responded, resulting in a 31 percent response rate. All of the survey respondents were career civil servants rather than political appointees. Continue reading "Shining Some Light into the Black Box of Agency Statutory Interpretation"

 
 

Disabilities, Caregiving Responsibilities, and Employer Requirements

In workplace law, we often see groups of workers that are marginalized by their employers or fellow employees. The treatment of these employees can dramatically affect the working environment.

In her article, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities, Nicole Buonocore Porter explores two specific groups that remain heavily stigmatized in modern society – those with caregiving responsibilities and those that have disabilities. Professor Porter highlights the connection between these employees and their treatment in the workplace. While the link between these two groups is not readily apparent, Professor Porter carefully addresses the disparate treatment of these two types of workers. Continue reading "Disabilities, Caregiving Responsibilities, and Employer Requirements"

 
 

Theoretical and Practical Concerns in Moving to a Federal Inheritance Task

Wendy C. Gerzog, What’s Wrong with a Federal Inheritance Tax, 49 Real Prop., Tr. & Est. L.J. 163 (2014), available at SSRN.

Professor Wendy Gerzog has written a thought-provoking article reviewing inheritance tax systems both in the United States and abroad, and then Professor Lily Batchelder’s proposed comprehensive inheritance tax (CIT).1 Professor Gerzog has three principal criticisms of inheritance tax systems: (1) they inequitably tax the recipient based on the closeness of relationship to the donor or decedent (which rationale is “neither a good measure of ability to pay nor an effective means of wealth redistribution,”); (2) they lack a gift tax back-up; and, (3) they apply to more individuals, increasing administrative costs and decreasing compliance rates. (P. 200) As to Professor Batchelder’s CIT, Professor Gerzog supports its elimination of the “disparity of burdens for some beneficiaries under the current transfer system” and its solving “the problems of timing and valuation abuses that involve actuarial problems,” but Professor Gerzog contends that the CIT “engenders its own problems”: (1) increased family wealth; (2) increased valuation abuse; (3) increased recordkeeping costs; (4) increased compliance problems; and, (5) increased complexity. (P. 201.) Professor Gerzog concludes that “the transfer tax system works relatively well and has significant practical and theoretical advantages over a federal inheritance tax or a CIT.” (P. 201.)

Professor Gerzog believes that basing tax rates on a decedent’s relation to a beneficiary is “objectionable on fairness considerations.” (Pp. 164-165.) Given that most wealthy decedents leave their property to other wealthy individuals and the majority of beneficiaries are the decedent’s close relatives, there are comparatively few estates with non-relative heirs, and “no policy rationale supports subjecting those few unrelated individuals to either a higher or a lower tax rate.” (P. 165.) Professor Gerzog contends that an inheritance tax with greater tax rates when there are “a fairly small number of the beneficiaries” or “a distant familial relationship … of the decedent’s beneficiaries” “cannot realistically achieve the reduction of concentrated family wealth and its associated power.” (P. 166.) Continue reading "Theoretical and Practical Concerns in Moving to a Federal Inheritance Task"

 
 

Attention Jotwell RSS Feed Readers

This week Jotwell is having its first-ever fund-raiser. Regular visitors to the site probably already noticed a large yellow popup informing then of this fact, but people who get Jotwell via the RSS feed or by email will have been denied that experience. There is no reason for the hundreds of people who read us via the RSS feed–or by email–to be left out.

So here’s the pitch: Please will you make a small donation to support this journal? All the faculty who write for and edit Jotwell do so for free, but even so, producing the journal is not costless: we need to pay for our server, for our student editors, and for various types of technical and design support, including a coming makeover to keep up with a procession of software updates. This adds up.

We don’t charge for Jotwell and we don’t run any ads, and we would like to keep it that way. If every Jotwell reader donated just $7 a year, we’d cover all of our costs…but alas not everyone is generous.

If you can afford it, please don’t be a free rider. If you like us lots–or even just some–please make a small donation? Of course, if you want to make a large one, we would not say no to that either.

Thank you.

Yours sincerely,

A. Michael Froomkin
Jotwell Editor-in-Chief

 
 

A Holy Grail for Pluralist Theory?

Ronen Perry, Pluralistic Legal Theories: In Search of a Common Denominator, 90 Tul. L. Rev. ___ (forthcoming 2015), available at SSRN.

Can pluralistic legal theories be unified around a common framework? That’s the tantalizing question that Ronen Perry tackles in his recent essay. Perry is searching for a holy grail—a unifying principle for all pluralistic theories of law. Even if the holy grail does not exist, the quest itself proves interesting and worthy of consideration.

Modern tort theorists have advanced at least three rationales for the tort system: deterrence, individualized justice, and compensation. Under a deterrence-economic perspective, the goal of the tort system is to prevent accidents in an efficient manner. On the other hand, an individualized justice theorist views the tort system as a way to remedy a wrong caused by one to another. Finally, under a compensation or distributive justice theory, tort law’s goal is to spread loss and provide compensation to victims of tortious injury. But few scholars accept these multiple theories, and instead focus on their own singular rationale. Continue reading "A Holy Grail for Pluralist Theory?"

 
 

Personal Jurisdiction Based on Intangible Harm

Alan M. Trammell & Derek E. Bambauer, Personal Jurisdiction and the “Interwebs,” 100 Cornell L. Rev. 1129 (2015).

Conduct channeled through cyberspace can cause harm in physical space. That leakage across a conceptually amorphous border has befuddled courts attempting to adapt personal jurisdiction doctrine to the Internet. At least two distinct problems have combined to produce an inconsistent and unstable jurisprudence. First, the Internet is a buffer between the defendant and the forum. This technological intermediary diffuses the defendant’s geographic reach, complicating analysis of the defendant’s contacts and purpose. Second, activity on the Internet often leads to intangible harm, such as a sullied reputation or devalued trademark. These intangible injuries can manifest in places that are difficult to predict ex ante and to identify ex post.

Accordingly, the Internet creates spatial indeterminacy in a legal context that reifies geographic boundaries. Many courts have reacted by trying to tame complexity with an ostensibly elegant tripartite framework for analyzing jurisdiction. The “Zippo test”—named after an influential yet often-criticized district court decision—posits that jurisdiction based on Internet contacts depends on pigeonholing websites into categories. A “passive” website that merely provides content is a weak basis for jurisdiction, while jurisdiction usually exists over websites that are commercial platforms for repeated transmission of files. Between these extremes are “interactive” sites that require a context-sensitive inquiry into the nature of the interactions. Continue reading "Personal Jurisdiction Based on Intangible Harm"

 
 

A Different Kind of Marriage Equality

If you are married to a miser who controls the family finances and refuses to give you money outside household expenses, what can you do about it other than get a divorce? What are the consequences of unequal power over property in marriage? In her article The Illusion of Equality: The Failure of the Community Property Reform to Achieve Management Equality, Elizabeth Carter reminds family law scholars and practitioners of the importance of these questions raised so memorably in the 1953 case of McGuire v. McGuire.1 There, Lydia McGuire sued her husband for maintenance and discovered that there was no legal remedy for her situation. In other words, the law could not compel spouses to be equitable about the family finances and property or give redress to past inequalities in an extant marriage. In the decision denying Lydia McGuire relief, Justice Messmore of the Nebraska Supreme Court found that “[t]he living standards of a family are a matter of concern to the household, and not for the courts to determine…. As long as the home is maintained and the parties are living as husband and wife it may be said that the husband is legally supporting his wife and the purpose of the marriage relation is being carried out.”2

Community property states, which historically had been more egalitarian in distributing ownership of marital property during marriage and at dissolution than common law states before their reform of post-dissolution property distribution, still had gendered management rights while marriages were intact. In most extant marriages, management rights or the rights to invest or use property such as paychecks, investments, and even real property had historically been vested in breadwinning husbands. Confronted with the possibility of the passage of the Equal Rights Amendment and the evolving Supreme Court jurisprudence in equal rights, community property states reformed their management rules in the 1960s and 70s to be gender neutral. One would imagine that with the increase in women’s participation in the workforce during this period and the reform of rules to formally bestow equality, de facto management would also become more or less equal. However, these neutral laws that “facially granted the spouses equal management rights over their community property” have largely failed to equalize management rights of that property in fact. (P. 854.) That is to say, the rules did not change the practices in family property management. In her article, Carter reminds us that now some seventy years after the McGuire case, and in spite of the dramatic changes in family and gender roles and the reform in community property states to gender-neutral management rules, the ability to control family resources continues to be demarcated unequally along gender lines in heterosexual marriages. Continue reading "A Different Kind of Marriage Equality"

 
 

A New Tax Policy Criterion: Stability

Jason Oh, Will Tax Reform Be Stable?, UCLA School of Law, Working Paper Series Law & Econ. Paper No. 15-16 (2015), available at SSRN.

Fairness, efficiency, simplicity, and revenue-raising capability (not necessarily in that order) have long been the hallmarks of good tax policy. In a forthcoming article, Will Tax Reform Be Stable?, Jason Oh introduces a new criterion: stability. Oh persuasively argues that certain tax reform may be more or less stable than others, and contends that it is possible to analyze and predict stability. Moreover, as Oh explains, understanding stability is essential in order to determine the durability of any good (or bad) tax reform.

This article is impressive because of both its potential importance and its ambition. Oh is right, of course, that, all else equal, a reform that quickly unravels is unlikely to be as impactful as one that does not. In this regard, the article’s insights are akin in importance to the realization that taxpayers will change their behavior in response to legislation (for instance, by decreasing their sales of capital assets if the capital gains tax goes up), a realization that led to the practice of dynamic scoring of legislation. In pushing us to recognize a new dimension for evaluating tax policy, Oh has to color outside the familiar lines of existing debates. His willingness and ability to do so merits attention, and may well garner it in policymaking circles. Continue reading "A New Tax Policy Criterion: Stability"

 
 

The World War II Roots of the Modern American Administrative State

Mariano-Florentino Cuéllar, Administrative War, 82 Geo. Wash. L. Rev. 13431445 (2014), available at SSRN.

The study of administration is thriving – so much so that even people outside the field are taking note. A recent review essay in the Boston Review (and a cautionary response by Karen Tani) demonstrate the breadth of this scholarship, which includes studies that push the origins of the administrative state back to the early republic and studies that examine (in a term coined by Sophia Lee) administrative constitutionalism throughout the federal government. The New Deal continues to loom large, however, in research into the expansion and entrenchment of the modern administrative state; according to Mariano-Florentino Cuéllar, this account is incorrect. As he argues, “during the 1930s the federal administrative state remained a pale shadow of its future self.” (P. 1354.) Instead, much as James T. Sparrow argues that World War II made the modern American state, Cuéllar argues that World War II made the modern American administrative state.

Cuéllar describes how pre-World War II agencies were hamstrung by limited powers and limited resources, limits which soon became impractical. World War II changed the political and economic context in which agencies operated, opening the door to legal changes that strengthened the agencies. Mobilization for war required greater administrative capacity, which in turn required more money to pay for agency operations. In response, federal courts expanded agencies’ subpoena powers, which markedly improved agencies’ ability to investigate. Courts also moved from a formalist understanding of the non-delegation doctrine (Schechter) to a functionalist one (Yakus) that legitimated broad congressional delegations of authority to agencies. And Congress enabled mass taxation to pay for expanded administration. (Funding is key to any discussion of administrative capacity; a chart in Cuéllar’s appendix showing the increase in federal employees during the war make this clear.) By giving agencies the tools they needed to endure, Cuéllar argues, wartime actors embedded administrative governance in American political life. Continue reading "The World War II Roots of the Modern American Administrative State"

 
 

A Need for Equity in Immigration Law (Congress, are you listening?)

Jason A. Cade, Enforcing Immigration Equity, 84 Fordham L. Rev. (forthcoming 2015), available at SSRN.

In the late twentieth century, Congress amended the immigration laws to severely limit the power of immigration judges, the agency’s adjudicators, to grant relief from removal on equitable grounds. At the same time, Congress expanded the categories of activities that render a foreign national removable. The result of the statutory tinkering was that it was much easier to be removable and much harder to be granted relief from removal.

The severity of those reforms is well known. Professor Jason Cade’s contribution to the discussion is that he persuasively argues that those statutory reforms from twenty years ago are linked to the most visible controversy in immigration law right now:  President Obama’s executive actions creating the chance for a temporary reprieve from removal. Continue reading "A Need for Equity in Immigration Law (Congress, are you listening?)"

 
 

Care to take a peek into the mind of tax lawyers?

Elaine Doyle, Jane Frecknall Hughes and Barbara Summers,  An Empirical Analysis of the Ethical Reasoning of Tax Practitioners, 114 J. Bus. Ethics 325 (2013).

The literature on lawyer ethics has been dominated by philosophy and sociology for many years. Consistent with the rise of behavioral economics and the more urgent focus on ethics in business schools, social psychology is increasingly being used to offer insights in the field (see for example Andrew M. Perlman, A Behavioral Theory of Legal Ethics, 90 Ind. L.J. 1639 (2015)). Take Elaine Doyle, Jane Frecknall-Hughes and Barbara Summers‘ piece An Empirical Analysis of the Ethical Reasoning of Tax Practitioners. This piece uses a tax-specific version of Rest’s original Defining Issues Test (DIT) to compare the moral reasoning of Irish tax practitioners and a control group of non-tax specialists. Rest’s DIT is well established and designed to test the level of moral reasoning applied by test respondents when solving. Test takers read moral dilemmas and provide an indication of which kinds of reason they find most important in deciding the moral dilemma. The reasons cover basic justifications like self-interest, rules and ‘post conventional’ principles. The test uses six levels, and the higher up the scale, the higher the level of moral reasoning that is applied by the subject of the test.  Higher levels of performance on the test have been associated with more ethical decision making. The authors study covers tax practitioners (which includes lawyers).

The results the authors claim for the study are: (i) tax practitioners generally reason at lower levels in tax contexts than in social scenarios (i.e. they can decide ethical problems in a more principled manner, but do not in tax situations); (ii) that the professions do not appear to attract people who generally reason at lower levels (i.e. tax does not, on the evidence here, attract particularly bad apples); and (iii) that practitioners’ moral reasoning appears to be affected by training/socialization in their professional context (in particular tax practitioners in private practice demonstrate lower levels of moral reasoning than practitioners working for the Irish revenue service). They summarize their results as follows:

The fact that tax practitioners do not reason significantly differently from non-specialists in the social context sug­gests that individuals whose reasoning is less principled than the norm (as measured by the non-specialist control group) are not self-selecting into the tax profession. …Once the context changed to tax, however, differences in moral reasoning were evident, with tax practitioners utilizing significantly lower level moral reasoning than non-specialists who remained con­sistent in their reasoning across both contexts. This dif­ference was substantial in size, with the level of principled moral reasoning being 34% higher in non-specialists. (P. 333.) Continue reading "Care to take a peek into the mind of tax lawyers?"

 
 

Long Shadows and Clubbable Democracies

Jeremy Waldron, Immigration: A Lockean Approach, NYU School of Law, Public Law Research Paper No. 15-37 (2015), available at SSRN.

Approximately eleven million people currently reside in the United States as undocumented aliens. Most of these are so-called “economic” immigrants, who do not qualify for political asylum.1 Due to armed conflicts in the Middle East, approximately 350,000 migrants illegally entered countries of the European Union in the first eight months of the current year. Many of these will qualify for political asylum, but many will not; for from a legal perspective they, like the vast majority of US “illegals,” have immigrated primarily for economic reasons.2 Not to pillage and plunder, but to seek a better life by taking up opportunities for work in these wealthier and more stable countries. In other words, they come and keep coming mainly in order to bargain freely with legal residents who will pay for their labor.

The nations of Earth claim the right to exclude non-citizens from their territories, and many actively do so. Except in extraordinary circumstances, would-be immigrants have no recognized human right to be admitted or to remain. Illegal immigration, then, can present a complex set of policy questions whose answers involve balancing a range of reasons, both for and against policies such as amnesty, adjustment of legal status, management of quotas, enhanced border enforcement, construction of physical barriers, and deportation. The reasons going into the mix include public attitudes, human hardship, monetary costs of many kinds, impacts on wages, crime rates, demand for public services, and intangibles such as community homogeneity and “quality of life.” Jeremy Waldron rightly rejects the view that the question is essentially one of policy or the application of a settled ethics of national sovereignty. Waldron has rarely shied from the role of public intellectual, and here he seems poised to embrace it with uncommon vigor. Continue reading "Long Shadows and Clubbable Democracies"

 
 

Pendulums Swing

Nicholas Bagley, Medicine as a Public Calling, 114 Mich. L. Rev. 57 (2015).

Even as some in Congress continue to vote to repeal the Affordable Care Act, most observers and political participants agree that the health reform law’s central elements are here to stay. Yet broad agreement also exists that, despite the law’s progress in decreasing the number of uninsured Americans, serious problems still plague the U.S. health care system. Escalating costs figure centrally among these problems, and recent news reports have highlighted the plight of insured Americans who face burdensome premiums or out-of-pocket costs. What is the most promising “fix” for addressing the persistent problems Americans face in accessing and affording medical care?

Against this backdrop, Nicholas Bagley’s new article Medicine as a Public Calling suggests approaches in the tradition of public utility regulation as a plausible response. Bagley’s argument is that—as we try to figure out how to move forward in a post-ACA landscape—we would do well to recognize how the public utility model shaped health care regulation in the twentieth century. The article is descriptive, rather than prescriptive. Bagley does not advocate regulation of health care prices, access, or supply, but he wants to make sure readers realize that such regulation would have a long lineage. I found the article’s careful description of this lineage tremendously valuable. Keeping up with the rapid pace of changes in health law, policy, systems, and technology is a constant challenge for health law teachers and scholars. These changes make it all too easy to think that “taking a historical perspective” means looking back ten years or so, which obscures understanding of the legal historical path to today’s vantage point. Bagley’s article corrects that historical shortsightedness. Continue reading "Pendulums Swing"

 
 

Designing Architectural Copyright

Kevin Emerson Collins, Economically Defeasible Rights to Facilitate Information Disclosure: The Hidden Wisdom of Pre-AWCPA Copyright (2015), available at SSRN.

In his new piece Economically Defeasible Rights to Facilitate Information Disclosure: The Hidden Wisdom of Pre-AWCPA Copyright, Kevin Collins brings his background as a trained architect to bear on the puzzling history of architectural copyright. In Collins’s view, far from being inadequate, as some have contended, pre-AWCPA copyright was a sort of Goldilocks solution: not so strong as to prevent beneficial borrowing, not too weak to provide incentives, but instead just right to solve a particular disclosure problem unique to the design-minded architecture market. In the process, Collins makes a compelling case for tailoring in copyright, and for the importance of theory to doctrinal design.

Before the Architectural Works Protection Act was passed in 1990, architectural works received an unusually narrow form of copyright protection, even as compared with other highly useful works. Pre-AWCPA copyright gave architects the right to prevent copying of architectural drawings into new drawings. But architects could not prevent (or at least most thought they could not prevent) the making of derivative works from those drawings in the form of constructed buildings, nor could they prevent copying of the constructed buildings into new drawings or other constructed buildings. This form of protection was unusual not only because it was, as Collins memorably puts it, “runtish” by comparison to the protection afforded other works, but because it was essentially a “defeasible” right, lost upon the construction of a building that embodies the architectural work. (P. 6.) Continue reading "Designing Architectural Copyright"

 
 

The Turn to Vulnerability

Maneesha Deckha, Vulnerability, Equality, and Animals, 1 Canadian Journal of Women and the Law 27, 47–70 (2015).

There’s a growing body of work that explores the contours of nonhuman animals and law. Just to illustrate, see previous Jotwell posts in Jurisprudence (here and here) and in Legal History. Maneesha Deckha’s article, “Vulnerability, Equality, and Animals”, brings that body of literature squarely into engagement with equality theory.

I read everything Professor Deckha writes: not because I am always on board with where her analysis takes her, but because I’m always left asking questions I hadn’t thought through before. This piece is yet one more illustration of her ability to connect unexpected dots; to press on boundaries that had not been explicitly articulated before; and to draw the reader in. Continue reading "The Turn to Vulnerability"

 
 

Making Sense of Plurality Decisions

Ryan C. Williams, Questioning Marks: Plurality Decisions and Precedential Constraint (forthcoming).

In Questioning Marks, Ryan Williams tackles a piece of Supreme Court doctrine that many dismiss with the back of their hand: how to make precedential sense of the Court’s plurality opinions. Oh sure, we all begin with the statement in Marks v. United States that lower courts should ascribe precedential weight to the “holding” of the case, understood as “that position taken by those Members who concurred in the judgments on the narrowest grounds.” But that formulation obscures any number of difficulties. How does a lower court identify the narrowest grounds of the shared decision that produced a judgment that was supported by separate reasons that failed to offer clear guidance in future cases?

Williams first shows that lower courts have taken a range of different approaches to the problem of identifying the narrowest grounds. Some look for an implicit consensus among the five (or more) concurring Justices, others give pride of place to the notion that the Justice casting the fifth vote must have played a decisive role in the outcome and so treat the opinion accompanying that swing vote as controlling. Still others adopt an issue-by-issue approach, looking for the alignment of Justices who expressed agreement with a particular proposition that may be relevant in future litigation. Somewhat controversially, this issue-by-issue approach may also consider the views of dissenting Justices, a group seemingly omitted from the Marks reference to the members concurring in the judgment. Continue reading "Making Sense of Plurality Decisions"

 
 

Fringe Administrative Law

Anne Joseph O’Connell, Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841 (2014).

Last Term the Court gave administrative law scholars a lot to digest. Writing for the Court, the Chief Justice in King v. Burwell reinvigorated the major questions doctrine as a Chevron Step Zero inquiry, Justice Scalia in Michigan v. EPA ruled that the EPA must consider costs when a statute says to take action that is “appropriate and necessary,” and Justice Sotomayor in Perez v. Mortgage Bankers abolished the D.C. Circuit’s Paralyzed Veterans doctrine. The separate writings were perhaps even more intriguing. In Mortgage Bankers, Justices Alito, Scalia, and Thomas all indicated some appetite to revisit Auer deference. In Mortgage Bankers and the Amtrak case, Justice Thomas questioned the modern administrative state on separation of powers and nondelegation grounds, and then wrapped up the Term in Michigan v. EPA arguing that Chevron deference itself raises serious separation of powers concerns (and Justice Scalia may have suggested something similar in Mortgage Bankers).

These decisions all deal with foundational principles in administrative law. One decision, however, also grapples with the fringe: Department of Transportation v. Association of Railroads. At issue there was a congressionally created corporation—Amtrak—and its congressionally delegated authority to engage in joint rulemaking with a more traditional federal agency, the Federal Railroad Administration. The D.C. Circuit had held that Congress could not delegate regulatory power to Amtrak because it was a private corporation (at least for rulemaking purposes). The Supreme Court reversed, holding that Amtrak is a government entity for constitutional rulemaking delegation purposes. Continue reading "Fringe Administrative Law"

 
 

Is it Fair to Sell Your Soul?

Marco Loos & Joasia Luzak, Wanted: A Bigger Stick. On Unfair Terms in Consumer Contracts with Online Service Providers (Ctr. for the Study of European Contract Law, Working Paper No. 2015-01, 2015), available at SSRN.

The reliance of online service providers on lengthy terms of service or related documents is easily mocked. When I teach this topic, I can choose to illustrate the topic with the selling of souls, in cartoon or written form, point to the absurd length of the policies of popular sites, and highlight experiments that call us out on our love of the I Accept button. But behind the mirth lie a number of serious legal issues, and the recent working paper by Marco Loos & Joasia Luzak of the University of Amsterdam tackles some of them.

Loos & Luzak work at the Centre for the Study of European Contract Law, and their particular concern is with the European Union’s 1993 Unfair Contract Terms Directive. They point out that although the gap between typical terms and policies and the requirements of the Directive is often pointed to, it is rarely studied in detail. In their thorough study, the authors examined the instruments used by five well-known service providers, and evaluated them against the Directive’s stipulation that mass terms (those not individually negotiated with the consumer) be ‘fair’. Continue reading "Is it Fair to Sell Your Soul?"

 
 

Debt, Detroit, Democracy

Melissa B. Jacoby, Federalism Form and Function in the Detroit Bankruptcy, 33 Yale J. on Reg. (forthcoming 2016).

I feel only a bit sheepish for snatching Melissa Jacoby‘s Federalism Form and Function in the Detroit Bankruptcy (Yale J. on Reg. forthcoming) from all the other sections that could claim it, notably Constitutional Law and Courts Law. Although it is the richest law review article I have read in a while—sweeter for being the first in a cycle—I worry that it might fall through the interdisciplinary cracks. Debt rarely takes center stage in constitutional theater these days, ditto bankruptcy procedure in procedure. Even by bankruptcy standards, the project might seem exotic—a deep dive into audio recordings and other primary sources from Chapter 9 (municipal) bankruptcy hearings. Whatever your discipline, you would be mad to miss it. The subject is the biggest-ever public debt restructuring under a statutory scheme. The article is packed with doctrinal, theoretical, and methodological insights. The treatment is sophisticated and empathetic. The policy salience is obvious, as Detroit taps the markets, Chicago totters, Puerto Rico defaults, and the United Nations and the Pope endorse bankruptcy for states.

Chapter 9 of the U.S. Bankruptcy Code is one of the few statutory regimes in the world for public debt restructuring. Its effort to balance federalism and democratic deference against the need to put an over-indebted (likely mismanaged) political unit on a sound financial footing has inspired imitation and criticism. Chapter 9 combines a high barrier to filing with extraordinary deference to the debtor’s policy decisions once it files. There is no bankruptcy estate, no equity, and no liquidation. In theory, states retain sovereignty over municipalities, while federal bankruptcy courts must keep their noses out of municipal affairs. Some commentators have argued that such reticence fuels debtor moral hazard; others have used it to highlight the limitations of Chapter 9 as a framework for bigger, more complex political units. Continue reading "Debt, Detroit, Democracy"

 
 

What We Like

Annie BrettA. Michael Froomkin

Annie Brett & A. Michael Froomkin

Jotwell began on October 27, 2008 with the goal of identifying new and interesting legal scholarship. Over the past seven years, Jotwell has recruited more than 300 Section and Contributing Editors who are leading academics (or in a few cases leading practitioners) and asked them each to write a short essay once a year identifying one of the best examples of recent scholarship relating to the law in their respective fields. This year, we wanted to reflect on where Jotwell is, and attempt to measure how well it is achieving its goals.

Jotwell has two objectives. On the one hand, we wanted to provide a service for persons who are not trying to be expert in a particular sub-field of law but still would like to keep up with the major developments in it. Given the proliferation of law reviews,1 and the resulting evolution away from having a few top journals act as the gatekeepers for high-quality scholarship,2 it is increasingly difficult for legal academics to know what is happening in their own fields, let alone what is most important and relevant in other fields. We expected, therefore, that some of the reviews would inevitably be of work by famous scholars and/or work appearing in top-ranked journals. On the other hand, we hoped also that our reviewers would be moved to call attention to significant work published in less prestigious journals and works authored by younger academics and others who were not yet widely recognized.

Although these goals were communicated to Jotwell’s Contributing Editors, and are noted in our author guidelines, we did little behind the scenes to enforce or even incentivize adherence to either goal. Instead we let Jotwell’s editors determine on their own what works of current scholarship they believe are worth recognition. Our thinking was that having assembled such a talented group of contributors we should leave it to them to decide what they liked and wanted to recommend.

Continue reading "What We Like"

  1. The number of law reviews increased from approximately 60 in 1960 to 616 in 2010. Alena L. Wolotira, From a Trickle to a Flood: A Case Study of the Current Index to Legal Periodicals to Examine the Swell of American Law Journals Published in the Last Fifty Years (June 21, 2011), available at SSRN. []
  2. Although no longer seen as gatekeepers for quality scholarship, the top journals are effectively gatekeepers in a different sense: the institutional affiliations of the authors. For example, in the 2014-2015 issues of the Harvard, Yale and Stanford law reviews, over 60% of the scholars published were at schools in the top 10, while less than 15% were from schools outside the top 20 (N = 106). See also Reza Ibadj, Fashions and Methodology, in Rethinking Legal Scholarship: A Transatlantic Interchange (forthcoming), available at SSRN (finding that 71% of articles published in top 20 law journals were authored by academics at top 20 law schools). []
 
 

Can Abusive Constitutionalism Be Checked?

David Landau & Rosalind Dixon, Constraining Constitutional Change, 51 Wake Forest L. Rev. (forthcoming, 2015), available at SSRN.

Changes to constitutional law do not always further beneficial ends. Sometimes, in fact, they do the opposite, with political actors utilizing mechanisms of constitutional law-making to consolidate their powers, entrench themselves in office, marginalize opposition, and otherwise undermine basic democratic values. Under these circumstances, a constitution can find itself in the perverse position of enabling rather than constraining abusive governmental action—subverting the very principles that it was originally intended to promote.

Comparative constitutional scholars have puzzled over the question of how to prevent “abusive constitutionalism” of this sort. To date, they have focused largely on mechanisms of constitutional amendment, considering ways in which an existing constitutional regime might structure its internal rules of change so as to frustrate a would-be autocrat’s anti-democratic amendment efforts. For example, timing requirements and supermajority voting procedures might render undesirable amendments especially difficult to enact; “eternity clauses” might safeguard essential provisions of a constitutional text against the threat of repeal; and the doctrine of “unconstitutional constitutional amendments” might empower courts to invalidate some forms of anti-democratic action after the fact. In these and other ways, amendment-restricting devices might manage to prevent at least some abusive amendments from ever taking effect.

These are important tools, which have enjoyed some measure of success in the real-world. But, as Professors David Landau and Rosalind Dixon point out in their wonderfully thought-provoking article, Constraining Constitutional Change, even a fail-safe set of constraints on the amendment process cannot eliminate the specter of abusive constitutional change. Looming in the background is the alternative and more daunting possibility of wholesale constitutional replacement—the outright rejection of an old constitutional order (including its amendment rules) in favor of a brand-new constitutional regime. Where amendment rules threaten to foil a would-be autocrat’s abusive constitutional ambitions, that official might simply choose to take the replacement route instead. Continue reading "Can Abusive Constitutionalism Be Checked?"

 
 

Discipline and Fine

Alexandra Natapoff, Misdemeanor Criminalization, 68 Vand. L.Rev. 155 (2015).

The recent cascade of highly-publicized murders of American black men and women by police and by white “domestic terrorists” has brought into public debate one of the most spectacular forms of American anti-black racism. Ruth Wilson Gilmore defines this racism as “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” Michael Brown’s body—killed by police in Ferguson, Missouri in August 2014 and subsequently left on the street for hours—has come to literally embody American contempt for black life.

But Ferguson also exposed a less lethal manifestation of American racism: the reliance of strapped-for-cash municipalities on fines and fees imposed on the poor through the criminal justice system. In her article, Misdemeanor Criminalization, Alexandra Natapoff warns us that one attempt to scale back mass incarceration may, paradoxically, expand racism in this subtle but insidious form. Turning felonies such as drug crimes into misdemeanors, she argues, expands the potential for American cities and counties to make money off poor people—with disturbing implications both for people of color and for the nature of criminal justice. Continue reading "Discipline and Fine"

 
 

Masculinities Theory Helps Understand Employment Discrimination and Could Help Reduce It

Ann C. McGinley, Through a Different Lens: Perspectives on Masculinity and Employment Discrimination Law (Forthcoming 2016, NYU Press)

Ann McGinley has made significant contributions to the legal literature concerning employment discrimination in general and to the social science concerning “masculinities” in particular. In many ways, this book is a culmination of a significant number of articles and a prior book of edited essays on the topic of masculinities and the law. With the new focus on issues of masculinity highlighted in the case of Miami Dolphin football player, Jonathan Martin, who quit the team because of harassment by several of his teammates, there is beginning to be greater general awareness of the multifaceted way in which various masculinity behaviors are used to harass and discriminate against women, people of color, and people perceived as failing to behave in appropriate gender roles.

More recently, there is a focus on the role of stereotypes and masculinity games that have been barriers to women becoming Hollywood directors.1 So, this forthcoming book is quite timely. It should have a significant impact on how we discuss and resolve questions arising from the role of masculinity games in employment. Continue reading "Masculinities Theory Helps Understand Employment Discrimination and Could Help Reduce It"

 
 

How to Get Away with Negligence

Robin L. West, Gatsby and Tort, in American Guy: Masculinity In American Law And Literature 86 (Saul Levmore & Martha C. Nussbaum ed., 2014), available at SSRN.

In Gatsby and Tort, Robin West engagingly argues that Fitzgerald’s famous novel highlights serious shortcomings of tort law as it has been traditionally understood, and of modern efforts to supplant or reconceptualize it.

West begins by observing that Gatsby would make for a good torts exam. In its ‘fact-pattern’ one can find bases for claims of battery, fraud, and criminal conversation. There is also a paradigmatic example of negligence—Daisy Buchanan, speeding in Gatsby’s Rolls Royce, runs down Myrtle Wilson. (Myrtle, Tom Buchanan’s mistress, had darted out into the street while escaping her husband George’s efforts to cloister her.) As West further notes, the novel ends with narrator Nick Carraway condemning the despicable Buchanans on terms that sound in tort: “They were careless people, Tom and Daisy—they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it is that kept them together, and let other people clean up the mess they had made.” (P. 3.) Continue reading "How to Get Away with Negligence"

 
 

Class Action Mismatch: Securities Class Action Jurisprudence and High-Frequency Trading Manipulation

Tara E. Levens, Too Fast, Too Frequent? High-Frequency Trading and Securities Class Actions, 82 U. Chi. L. Rev. 1511 (2015).

For faculty members with retirement savings in TIAA-CREF or brokerage accounts, market events of summer 2015 might prompt the conclusion that August is the cruelest month of all. Along with millions of other small investors, academics throughout the United States could only watch helplessly as volatile markets took shareholders on a daily roller-coaster ride resulting in devalued accounts.

In the wake of the 2008 market crash, small investors have become increasingly educated about the structural and institutional drivers of extreme market volatility: automatic, computerized trading techniques over which the small, individual stakeholder has little knowledge or control. Most prominent among these market innovations has been the advent of computerized, high-frequency trading (HFT), driven by mathematical algorithms.

In her thoughtful and innovative comment, Too Fast, Too Frequent? High-Frequency Trading and Securities Class Actions, Tara E. Levens explores the interesting question whether the prevalence of HFT techniques resulting in massive financial losses to small-stake investors will open the door to new securities class actions. Her general conclusion is that current legal theories undergirding various types of securities law violations are mismatched with the harms induced by HFT. Consequently, Levens attempts to formulate a jurisprudence for new securities class actions based on the unique injuries resulting from HFT manipulation. In essence, Levens’ task is a riff on the theme of fitting new wine into old bottles. Continue reading "Class Action Mismatch: Securities Class Action Jurisprudence and High-Frequency Trading Manipulation"

 
 

Nobody’s Perfect, Not Even the IRS

Leigh Osofsky, The Case for Categorical Nonenforcement, 69 Tax L. Rev. (forthcoming, 2015), available at SSRN.

We tax academics in law schools have an affinity for the logical operation of rules. We could not remain immersed in the intricacies of the income tax—and therefore remain competent as scholars and teachers—if we did not. Considerable resources have been devoted to the elaboration of rules developed through the logical application of a few basic principles. These principles, including those associated with the Haig-Simons definition of income and those governing accounting for capital, allow us to view this body of law as determinative, and thus capable of uniform application. In other words, the income tax system has long used this logic as the basis of its claim to rule-of-law legitimacy. The resulting set of rules is elaborate, indeed, it often seems as if it is among the most elaborate sets of rules ever devised.

But as specialists engaged in this elaboration, we must also understand that a legitimate tax system cannot be maintained merely by the articulation of these rules. The rules themselves will never be self-enforcing. And the mere elaboration of additional rules will never close the gap between the revenue that would be collected under a perfect application of the rules and the revenue that will actually be collected.

Leigh Osofsky’s article, The Case for Categorical Nonenforcement, soon to appear in the Tax Law Review, provides an opportunity to explore this tension between the formal elaboration of the tax law and the capacity of the Internal Revenue Service to enforce it. The tension is easily seen throughout the actual operation of the income tax law, whether one looks at the actual treatment of large partnerships, frequent flyer miles, fringe benefits claimed by non-employees, or many other provisions. Continue reading "Nobody’s Perfect, Not Even the IRS"

 
 

Injecting Class into Trusts and Estates

Trusts and estates scholarship typically focuses on the rich. This is not surprising, as the field primarily concerns itself with wealth transmission, and the wealthy are the ones who have wealth to transmit. In Making Things Fair, Professor Naomi Cahn and Amy Ziettlow inject class into the field by examining how lower-income individuals understand the wealth transmission process. This is a valuable and much-needed intervention, both for its empirical methodology and its focus on the lived experiences of lower-income Americans.

This article contributes on three fronts. The first contribution is empirical. The investigators recruited study participants by searching Baton Rouge newspaper obituaries, from which they compiled the names of children and step-children of recently deceased individuals under the age of 70 within a 7-month period in 2011. Of these 2,700 individuals, they gathered reliable contact information for 1,500 of them, and invited these to participate in the study by snail mail, email, and telephone. Their final sample size was sixty-three, appropriate to a qualitative and exploratory study of this type. The study used semi-structured interviews to delve into family dynamics, the dying process, and wealth transmission. Continue reading "Injecting Class into Trusts and Estates"

 
 

Parody and Fair Markets

In December 2011, the UK Intellectual Property Office commissioned the Centre for Intellectual Property Policy and Management at Bournemouth University to research the effects of parody on copyrighted works. Do parodies harm the market for the underlying work? How might we measure the economic effects of parody, as incentive depressors or engines?

UK copyright law does not contain an exception specifically covering parodies. The authors of the study perceive the UK copyright law as one of the most restrictive in seven jurisdictions surveyed (US, Canada, Australia, France, Germany, Netherlands, UK) with regard to parodies. By commissioning this research, the UK appears to be considering reform. The study concludes that changes loosening the reign of copyright over parodies would further copyright’s underlying purposes of creation and dissemination. Continue reading "Parody and Fair Markets"

 
 

Disability Advocacy: Strategizing a Comprehensive and Contextual Path Forward

Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527 (2014).

Constitutional Law should be harnessed in the service of disability law. That it has not been a central site for the advocacy of the disability rights movement is something that Professor Waterstone bemoans. In this Emory Law Journal article, he traces the seemingly bifurcated trajectories of the LGBT and Disability Rights movements, insofar as their use of constitutional strategy is concerned. Through a careful analysis of these moves, Prof. Waterstone concludes that the Disability Rights movement has suffered setbacks through constitutional law, but the time is ripe to recoup the use of constitutional law to advance the umbrella of disability rights. Harkening to recent victories in LGBT movements, this article seeks to lay a foundation for Disability Constitutional Law.

Prof. Waterstone acknowledges that there likely exists amongst disability rights advocates an understandable reluctance to engage constitutional law stemming from the Cleburne1 case, and its unfortunate legacy for the disability rights movement. While the holding in Cleburne2 struck down an ordinance infringing the Equal Protection rights of persons with “mental retardation,” the case has proven less progressive and unsupportive of disability rights broadly speaking. In holding that this disability classification was only entitled to rational basis scrutiny, the decision has become concretized in a way that, for practical purposes, has meant that “the most restrictive aspects” of the majority decision have “stayed frozen in time for people with disabilities.” (P. 529.) Additionally, subsequent Supreme Court decisions have stretched Cleburne’s application to include a “diverse universe of people with disabilities,” thereby casting too long a shadow of rational basis scrutiny in the disability rights arena. (P. 542.) Specifically, in holding that the decision in Cleburne on mental retardation included a vastly expanded category of “the disabled,” the Court in University of Alabama v. Garrett3 significantly expanded the reach of Cleburne in a way that has proven hard to overcome. Continue reading "Disability Advocacy: Strategizing a Comprehensive and Contextual Path Forward"

 
 

A Story Well Told

Oliver A. Houck, The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone, 28 Tul. Envtl. L.J. 185 (2015).

Professor Oliver Houck’s recent article, The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone, is easily one of the best articles that I have read in the last ten years and should be required reading regardless of one’s specialty. I should admit that I am not an environmental law professor and the environmental law articles I ordinarily read are those that intersect with one of my primary research areas: Indian law. So I initially downloaded The Reckoning expecting that I would skim it quickly. But it is a remarkable article. Although on its face, the article tells a story of oil and gas development in the fragile wetlands of Louisiana’s coast, it also has lessons about political corruption and short-sightedness that extend far beyond the environmental destruction at the heart of the article.

Professor Houck convincingly argues that the state government and oil and gas interests are seen as essentially the same, so much so that Houck refers to them collectively simply as “the company.” Louisiana actively courted oil and natural gas development to such an extent that the very state entities tasked with protecting the coastal zone participated in the promotion of development above all else, even above reason. As the article shows, it would be inaccurate to say that the state became the puppet of corporate interests or that it rubber-stamped the web of canals that destroyed the wetlands because nearly every Louisiana institution was and is invested in the rush to please big energy. Problematically, the list of those involved in opening up the wetlands, in denying the connection between development and destruction, and in attempting to shift the restoration costs away from oil and gas companies and unto the American taxpayer includes not only the ironically named Louisiana Department of Natural Resources, which time and again saw itself as an industry partner, but also parish governments, state-university academics and centers, politicians at the federal, state, and local levels, and even major environmental groups. As Professor Houck shows, no part of the Louisiana coast has been spared from devastation caused by “the company,” yet “the company” is unwilling to take responsibility and has largely succeeded in avoiding the costs associated with such destruction. Continue reading "A Story Well Told"

 
 

A Case Study for Understanding Prison-Reform, Its Advocates and Its Critics

With the recent national attention given to concerns about mass incarceration, lengthy prison sentences and atrocious prison conditions, it appears that we have entered a wave of prison reform—once again. But perhaps we believe it to be different in kind or degree from the sort of reformist movements we have had in the past. We might believe that today’s areas of focus—overcrowding due to three-strikes laws, concerns about the treatment of juvenile offenders, the roles of race, ethnicity, poverty and mental health as factors in determining prison demographics, the prevalence of sexual assault and violence in prions, the defunding of rehabilitation and re-entry programs—are new or unique. In Coxsackie: The Life and Death of Prison Reform, historian Joseph F. Spillane exposes the cyclical nature of prison reform debates along with a close examination of the failure of the American reformist movement of the early to mid-1900s. Relying on primary documents that included legislative discussions, periodical accounts, correspondences between key political actors, and primarily prison records, Spillane carefully reconstructs the events that influenced first the construction and later the of management of New York State’s Coxsackie Correctional Facility. Coxsackie (pronounced “cook-sock-ee” according to Spillane), opened as a then-modern vocational reformatory for adolescents in the 1930’s at the height of the progressive prison reform movement in New York but within decades spiraled into a now-modern maximum security warehouse for inmates rife with violence and brutality.

Like a lot of good history books, Spillane’s account depicts the past while helping to explain the present and is a must-read for anyone who cares deeply about prison reform and wants to avoid (or at least understand) common pitfalls. In his depiction of the pendulum swings characteristics of prison reform movements, Spillane begins with what were the triggering events in the 1920’s and 1930’s. According to Spillane, prisons generally suffer from inattention until a “focusing event” raises public awareness or fear. In the 1920’s and 1930’s, prison riots provided a political tipping point presenting the education reformers with an opportunity to advocate for change. Then-reformers blamed idleness, prison overcrowding and draconian four-strikes mandatory life Baumes Laws (little did they know that three-strikes would later became the norm!) for the riots. Continue reading "A Case Study for Understanding Prison-Reform, Its Advocates and Its Critics"

 
 

How big is big enough? Lessons from China about globalization

Rachel E. Stern and Su Li, The Outpost Office: How International Law Firms Approach the China Market, Law & Social Inquiry (forthcoming, 2015), available at SSRN.

Size matters—in the legal profession as elsewhere. It is a common element in research on law firms, legal practice and lawyers’ careers, and it often is assumed to be associated with success—in many instances, accurately. The largest U.S. law firms in terms of headcount also are among those that generate the most revenue and profits per partner, for example. Law firms in the category affectionately known as “BigLaw” account for an important segment of the most sought-after positions for new law graduates, in no small part because they offer the highest starting salaries and the promise of more for those who succeed. These same firms represent the most significant businesses in their most important disputes and largest and thorniest transactions, and today also often are involved in notable pro bono activities. Bigger is correlated with success, whether size is measured in headcount, number of offices, revenue, profits or compensation.

The assumption that size matters underlies the thoughtful analysis of Rachel Stern and Su Li about the growth of global law firms in China. Their article, The Outpost Office: How International Law Firms Approach the China Market, explores why growth seems to have stalled in the China offices of international law firms. Stern and Li draw on data gathered in interviews (conducted in 2013-2014) with lawyers practicing in the China offices of 50 international law firms.1 The firms have home bases in 18 different countries; this variety allows Stern and Li to consider how home country shapes global growth.2 Continue reading "How big is big enough? Lessons from China about globalization"

 
 

Controversial Supreme Court Appointments – A Blockbuster in the Foreign Films Category?

Often we like scholarship lots because it reflects new or interesting perspectives on familiar subjects. Sometimes, though, the story itself is so thought-provoking that a good telling is all that is needed to make the article worth commending to Courts Law readers.

Such is the case with Hugo Cyr’s article, which chronicles the highly charged engagement between the Supreme Court of Canada and the Canadian Government (the Executive, comprised of members of the ruling political party) over the fundamental requirements for their respective legitimacy. Everyone seems to agree that the incidents recounted were “unfortunate” in that they provoked strong expressions of differences in what has historically been regarded as a relationship to be managed tactfully. Yet the events exposed many intriguing issues about how best to conduct this critical relationship to promote the continuity and flexibility needed to serve well the interests of the public. Continue reading "Controversial Supreme Court Appointments – A Blockbuster in the Foreign Films Category?"

 
 

How the Other Half Banks

Mehrsa Baradaran, How the Other Half Banks (2015).

Once upon a time there were banks that served the poor. Government structured banks for that purpose—government gave banks cheap money and protection against failure partly in exchange for their providing a place to deposit money, earn interest and get credit, along with economic stability, for everyone. Financial innovation, increased competition and deregulation changed all that: the period of dramatic transformation left the poor and working class without services, as banks came under competitive pressure.

Once upon a time, post offices provided banking functions, giving the ordinary customer a brick-and-mortar office to park their cash. Then competition from higher-interest rate banks changed all that; with shrinking demand, postal banking was dismantled in 1967. Continue reading "How the Other Half Banks"

 
 

Who’s Afraid of the Welfare Queen? Stigmatized Motherhood, Tropes and the Policing of the American Poor

Ann Cammett, Deadbeat Dads & Welfare Queens: How Metaphor Shapes Poverty Law, 34 B.C.J.L. & Soc. Just. 233 (2014).

Who’s afraid of the welfare queen? Apparently everyone. These days, the average American sees the welfare queen as a key threat to social order; the conservative movement’s battle for hearts and minds decisively has been won. Numerous scholars, from Michele Gilman1 to Kaaryn Gustafson,2 have attempted to combat prevailing views of the welfare queen, providing us with an expansive, rich understanding of the ways in which the construct continues to shape contemporary poverty debates about poor single mothers. Ann Cammett, in her recent article recent Deadbeat Dads and Welfare Queens: How Metaphor Shapes Poverty Law, takes the conversation in a new, exciting direction; she demonstrates how the discursive constructs used to pathologize poor mothers have morphed to implicate us all.

Family law scholars know that discursive inquiries are an invaluable resource, particularly when gender constructs play a central role in the way legal claims are articulated in a given domain. However, thus far, family law scholars have focused on how ideal tropes and stories of perfect, heroic motherhood are used by the State to police women and families. Recent tropes of ideal motherhood include “the Soccer Mom” and “the Tiger Mom.” These motherhood constructs give form to middle class anxieties about the competing and conflicting responsibilities imposed on women—propositions that make ideal motherhood elusive.3

Instead of focusing on the ideal mother, Cammett turns to a trope of stigmatized motherhood: the welfare queen. Her work reveals the construct’s role in shaping the identities of poor women, as well as its role in shaping the self-perception of a far larger group of citizens, ones not normally associated with this construct. In this endeavor, Cammett expertly weaves together history and psychology to reveal a disturbing truth: The welfare queen construct exerts disciplinary power over us all, regardless of gender and class position. Continue reading "Who’s Afraid of the Welfare Queen? Stigmatized Motherhood, Tropes and the Policing of the American Poor"

 
 

Who Regulates the Robots?

Woodrow Hartzog, Unfair and Deceptive Robots, 74 Maryland L. Rev. 785 (2015).

When the law faces a new technology, a basic question is who governs it and with what rules? Technological development disrupts regulatory schemes. Take, for example, the challenges the Federal Aviation Administration (FAA) now faces with drones. The FAA usually regulates aircraft safety. Drones force the FAA to consider—and in some cases reject as outside the agency’s mandate—issues of privacy, spectrum policy, data security, autonomous decision-making, and more. The pace and complexity of recent technological change has led some to call for the creation of new agencies, including a Federal Robotics Commission. But given the significant hurdles involved in agency creation, it is valuable in the short run to assess what tools we already have.

In Unfair and Deceptive Robots, Woodrow Hartzog takes up the question of who will govern consumer robots. Hartzog proposes that the Federal Trade Commission (FTC) is best equipped to govern most issues that consumer robots will soon raise. He reasons that the FTC is well prepared both as a matter of subject-matter expertise and as a matter of institutional practice. Continue reading "Who Regulates the Robots?"

 
 

Anti-Rape Culture

Janet Halley, Trading the Megaphone for the Gavel in Title IX Enforcement, 128 Harv. L. Rev. F. 103 (2015).

I had just pulled up Janet Halley‘s compact and insightful (and incite-ful) commentary on sexual assault for re-reading in preparation for this Jot, when a student came in to chat. This student was involved in a soon-to-be launched pilot program, overseen by the University’s Title IX office and funded by grant money, to provide peer counseling to those identifying as sexual assault victim/survivors. The student-counselor explained that the program aimed to “point students in the right direction” and give them a “confidential sounding board.” The student further stated that the program would be “good for professors” because the peer counselors would deal with contextualizing class topics counselees might find uncomfortable or traumatizing. “You all shouldn’t have to do that,” she opined, “you should be able to just teach.” So I asked, “What are you going to tell students who have concerns about class material being traumatizing?” “I’m not sure yet,” she said, “we are going to receive trauma training from an expert.” “An expert on what?” I asked. “I guess trauma,” she replied. The student-counselor proceeded to reassure me that if a student came to her complaining about a lack of sufficient trigger warnings, she would tell her to “get over it.”

This is the new world we teachers and scholars of criminal law live in. And although the student I spoke with was quite level-headed and well-intentioned, she is soon to be part of this powerful culture. In this new world, the “one-in-four” claim is not just a rallying cry of feminist advocates meant to counter widespread sexist beliefs that rapes never occur and women are liars. Today, the statistic is the “truth” that underlies extreme, one-sided, punitive disciplinary policies and a marked shift in free speech/academic freedom norms. We are told to assume that a quarter of the women (not to mention a tenth of the men) in the class have been raped and traumatized and accordingly to teach rape in a psychologically appropriate manner (at the risk of severely damaging students and our own reputations/careers if we misapprehend the propriety of our methodology). Classes are a source of danger, and student activists call for speech control in the name of safety. Thus, it is not surprising that my interlocutor’s paradigmatic example of a student complaint did not involve actual psychological trauma but rather a sense of injustice when the professor fails to provide appropriate trigger warnings. We find ourselves in the midst of what I am calling “anti-rape culture,” that is, a set of beliefs about what constitutes rape (many forms of sex), its psychological effects (ruinous), how frequently rapes occur (ubiquitous), and appropriate institutional responses (punitive), combined with a norm that “good” people (feminists, women, liberals, non-sexists, etc.) must adhere to such beliefs. Continue reading "Anti-Rape Culture"

 
 

Can the Smart Market Solve the Problem of Undertaxed Intangibles?

Calvin H. Johnson, Organizational Capital: The Most Important Unsettling Issue in Tax, 148 Tax Notes 667 (2015), available at SSRN.

In his article, Organizational Capital: The Most Important Unsettling Issue in Tax, Professor Calvin Johnson argues that the undertaxation of intangibles is “the most important, most damaging issue in tax policy” and proposes a radical solution to remedy the problem: a new tax based on the trading value of public companies.

As Johnson explains, intangibles are undertaxed because businesses deduct—rather than capitalize—most expenditures related to self-created intangibles. At the same time, businesses report income from self-created intangibles over a period of years. As Cary Brown demonstrated, allowing an immediate deduction for expenditures that produce future income is the equivalent of exempting the income from tax. Thus, much income from self-created intangibles is in effect tax free. Continue reading "Can the Smart Market Solve the Problem of Undertaxed Intangibles?"

 
 

Someone Who’ll Watch Over Me

Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L. J. 1836 (2015).

Gillian Metzger is convinced of “[t]he central importance of supervision.” “Supervision and other systemic features of governmental administration with which it overlaps … are fundamental in shaping how an agency operates and its success in meeting its … responsibilities.” (P. 1840.) Nonetheless “constitutional law stands largely aloft from the reality of administrative governance, with the Supreme Court refusing to subject systemic features of government operations to constitutional scrutiny.” (P. 1841.) This dissonance preoccupies Metzger’s article.

Available lines of thought, we know, lie right at hand. The Article II Take Care Clause jumps out as one beginning. Anti-delegation worries, originating in structural preoccupations, suggest another accessible constitutional skein. Metzger’s observations drawing out these threads make for easy reading. (Pp. 1874-1904.) The problem, she thinks, lies largely with courts and their adjudicative inhibitions. In both administrative and constitutional law, ideas of review, “cases” and “controversies,” parties to disputes, resolution and finality, and so on—all work against thinking through matters of system, supervision, “rightful hierarchy,” and so on. Judges are inclined to start with—are prone to hesitating absent—investigations of individual instances. Although she maps possible occasions for taking up questions of supervision directly, Professor Metzger acknowledges that there’s not much chance of provoking large-scale change in judicial orientations (and maybe shouldn’t be). Her several discussions, here too, are searching and extensive, thoughtful and clear. (P. 1859-70, 1904-09, 1914-18.) Continue reading "Someone Who’ll Watch Over Me"

 
 

The Keepers of the Federal Courts Canon

Richard Fallon, John Manning, Daniel Meltzer, and David Shapiro, The Federal Courts and the Federal System (7th ed., 2015).

There are casebooks, and then there’s Hart and Wechsler’s The Federal Courts and the Federal System, the brand-new seventh edition of which arrived this summer. It may seem odd to focus so much attention on the latest edition of a casebook that has been around since before the Brooklyn Dodgers won their only World Series. But this newest iteration by Richard Fallon, John Manning, Daniel Meltzer, and David Shapiro is, for reasons I elaborate upon below, worthy of its own adoration—and should hopefully entice scholars who have long sought other teaching materials to return to the gold standard.

I

IMG_6614As Akhil Amar has explained, the first edition of “Hart and Wechsler,” published in 1953, “succeeded in defining the pedagogic canon of what has come to be one of the most important fields of public law in late twentieth-century America,” i.e., Federal Courts. And whereas most other legal disciplines preceded the casebooks that purported to define them, Hart and Wechsler all but created not just a curriculum for Federal Courts classes, but also a far deeper sense of why such a course was worth teaching—and taking. Continue reading "The Keepers of the Federal Courts Canon"

 
 

Clayton Christensen comes to Wall Street

Chris Brummer, Disruptive Innovation and Securities Regulation, 84 Fordham L. Rev. — (forthcoming, 2015), available at SSRN.

In the early 2000s, I spent some time as a fly on the wall of the floor of the New York Stock Exchange. I talked to specialists—those whose job it was to personally manage trading and make a market for particular high volume stocks—including one who had just earned a coveted specialist’s “seat” (price: $3 million). Once upon a time, a seat was practically a license to make money. As market-makers, specialists bought low and sold high on their own accounts. The NYSE specialists I spoke to talked about decimalization, new at the time—the fact that securities were now quoted in pennies instead of in eighths or sixteenths of a dollar. They agreed that it had cut into their profitability. They were already using an electronic system to pair off small customer orders, and they agreed that it actually handled more order volume than they did. None of them seemed to have given much thought to electronic trading, alternative trading platforms, or the derivatives market. Certainly none of them seemed to think these were existential issues that would undermine their 130-year-old business model.

Securities markets are utterly transformed today. Specialists, as they were then, are gone. Electronic trading networks reign, as does algorithmic trading. The NYSE handles less than 20% of US stock trades (it was 80% just a decade ago). Chris Brummer’s new article, Disruptive Innovation and Securities Regulation, is a gorgeous account of how this happened, how law intersected with innovation, and what the implications might be. Continue reading "Clayton Christensen comes to Wall Street"

 
 

The Administrative Passive Voice

Sharon Jacobs, The Administrative State’s Passive Virtues, 66 Admin. L. Rev. 565 (2014), available at SSRN.

The federal bureaucracy has long been accused of torpor. Administrative agencies, we are oft told, take years to do much of anything. Whether this supposed-sluggishness is because of intentional institutional design, judicial review, administrative preference, or the inherent conservativeness of bureaucracy is unclear. In recent years, moreover, the core descriptive claim that agencies are too slow and do too little has been significantly undermined. Nevertheless, positive accounts of administrative delay are rare and under-theorized. Sharon Jacobs’s The Administrative State’s Passive Virtues is a long overdue updating and application of Bickel’s notion of the passive virtues in the context of courts, as applied and developed for the Administrative State.

To oversimplify a bit, Bickel argued that given the counter-majoritarian nature of courts in the United States, judicial actors can, do, and should utilize justiciability doctrines to avoid or defer deciding certain difficult or politically controversial cases. This practice of avoiding certain decisions was said to be desirable because it avoided potential attacks from the other branches or citizens and allowed the other branches with a better democratic pedigree to decide difficult political issues. Though well-known and rhetorically powerful, Bickel’s passive virtues suffered a mix of acute and chronic intellectual beatings. But Bickel’s ghost remains a powerful trope in modern constitutional law and Jacobs’s point is not that Bickel was right about courts. Rather, it is that agencies have similar structural characteristics to courts in the ways that motivate Bickel and that we lack a theory or really even a concept of administrative passive virtues. Until now. Continue reading "The Administrative Passive Voice"

 
 

Explaining the Blurred Line Between Employment and Independent Contracting

Julia Tomassetti, The Contracting/Producing Ambiguity and the Collapse of the Means/Ends Distinction in Employment, 66 S.C. L. Rev. 315 (2014), available at SSRN.

As the Reporter primarily responsible for the chapter defining the employment relationship in the recently completed Restatement of Employment Law, I thought I had fully considered and taken account of the origins and various instances of judicial confusion in distinguishing employees from independent contractors. Thus, I was especially surprised to have my understanding of the confusion substantially enhanced by Julia Tomassetti’s recent conceptually deep article. Tomassetti argues that an understanding of the unusual and contradictory nature of employment contracts and their development is necessary to explain judicial confusion when defining employment, and that it is not sufficient simply to highlight the challenges posed for courts by the nontraditional work relationships in the modern economy and the many multifactor indeterminate tests that have been developed to supplement the traditional but inadequate “right to control the means and manner of work” test.

Tomassetti contends that the principal source of judicial confusion derives from the law’s presumption that the traditional master-servant relationship is incorporated into employment-at-will relationships. These relationships entail the employer’s ongoing discretionary control over the employee’s means of production, while concomitantly providing the non-indentured “free labor” servant with the leverage of a right of exit at any time. This atypical type of indefinite contract has seemed to courts different than service contracts containing work specifications even when those specifications seem to cover not only what is produced (the ends) but also how production is to be accomplished (the means). Tomassetti provides many examples of courts rejecting employment status for service relationships defined by what she terms “upfront contractual specifications” (UCS) that would entail employment status if the specifications were imposed by employers through the ongoing exercise of their contractually presumed discretionary control. The courts, viewing contracts as the products of bilateral negotiations, assert that the specifications express a bargain between businesses, regardless of how bad a bargain the terms express for the service provider. Continue reading "Explaining the Blurred Line Between Employment and Independent Contracting"

 
 

What Law Should We Teach?

Adam J. Hirsch, Teaching Wills and Trusts: The Jurisdictional Problem, 58 St. Louis Univ. L.J. 681(2014).

Law professors strive to stimulate student thinking not only about what the law is but also about law’s potential—what the law might or should be. In a conventional doctrinal law school class such considerations are likely to supplement, not supplant, teaching the law as it exists and is applied. But the conventional approach turns out to be surprisingly controversial, at least in the wills and trusts arena. Some wills and trusts professors choose to focus exclusively on model rules, many of which are not widely adopted. Conceived this way, the wills and trusts course is, “to a certain degree, detached from reality.” So writes Professor Adam Hirsch, in his concise and pithy contribution to the Saint Louis Law Journal’s symposium on teaching wills and trusts law, Teaching Wills and Trusts: The Jurisdictional Problem.

Wills and trusts laws, like those in many other areas, are primarily state laws that often vary across jurisdictional lines; a fact that inconveniences lawyers, confuses law students and frustrates law professors. How to deal with this predicament? We cannot, concedes Hirsch, teach the law of all fifty states. And teaching the law of only one jurisdiction, even in the “regional” law school, will not do either. Although students may be well prepared to take the local bar examination, they will suffer in seeking employment outside the jurisdiction, and will take an overly narrow view. And in the “top, nationally-recognized law schools,” to teach one jurisdiction’s law would be, writes Hirsch, “outlandish.” Students attending these (and many, if not most, other law schools) scatter widely upon graduation, making such an approach “pointless and arbitrary.” Continue reading "What Law Should We Teach?"

 
 

Is Negligence Law Less Objective Than We Think?

Avi Dorfman, Negligence and Accommodation: On Taking Other People as They Really Are, (2014), available at SSRN.

Avi Dorfman, a private law scholar at Tel Aviv University, has posted a deep and provocative paper Negligence and Accommodation: On Taking Other People as They Really AreNegligence and Accommodation is one of those rare papers that manage to say something new about familiar terrain. Here, the terrain is negligence law’s treatment of primary (other-regarding) negligence and contributory (self-regarding) negligence. Dorfman makes the case that the matter is of prime importance for our understanding of the morality of negligence law. The essential idea is simple enough. We are accustomed to thinking of the standard of reasonable care as objective. Indeed negligence law is famously objective. It holds people to the standard of conduct that an idealized normal person would achieve. Dorfman argues, however, that negligence law takes people as they are—subjectivizes by taking their individual limitations into account—more than we think, but it does so asymmetrically. Negligence law takes the traits of victims into account when they fail to exercise sufficient care for their own protection, but it is as firmly objective as the received wisdom takes it to be when it addresses the negligence of those who endanger others.

Challenging the Received Wisdom

Quite rightly, Negligence and Accommodation, takes negligence law’s treatment of physical disability as the canonical instance of the law addressing people whose capacities and competencies are less than those of the standardized “reasonable person.” The paper then marshals an impressive amount of evidence in support of two theses. The first is that the law makes allowance for physical disability and adopts a “watered-down standard of care [for] cases of contributory or comparative negligence.” (P. 12, fn. omitted.)1 The second is that not even “one case concerning the conduct of the tort-feasor has made allowance for her physical disability. Thus, tort-feasors are required to exercise the care a non-disabled tort-feasor would have been expected to exercise.” (P. 13, fns. omitted.) Neither of these theses is either wholly new, or utterly surprising. As Dorfman notes, Fleming James stressed that the subjectivization of the standard of care found its most intense manifestation in the case of physical disabilities. Still, no one has developed as thoroughly or as persuasively the thesis that asymmetric treatment of self-regarding and other-regarding obligations of care is a deeply entrenched feature of negligence law.2 In zeroing in on the asymmetric treatment of primary and contributory negligence, moreover, Dorfman is highlighting a theoretically important feature of negligence law. The two dominant tort theories of our time—economic analysis and corrective justice—both impose frameworks which suggest that primary and contributory negligence are on a par and both tend to push the actual treatment of contributory negligence by negligence law to the peripheries of their theories. They do so because the law’s asymmetric approach embarrasses both views. Continue reading "Is Negligence Law Less Objective Than We Think?"

 
 

Using the Tax Code to Help Universities Put Big-Time College Sports in (Some) Perspective

Richard Schmalbeck, Ending the Sweetheart Deal between Big-Time College Sports and the Tax SystemDuke Law School Public Law & Legal Theory Paper (2014).

The modern university is a precious institution, providing a wide variety of benefits to society. But it is constantly in danger of being turned into something far less valuable, ironically by the very people who claim that “creating value”—but only in a very limited sense—should be the narrow goal of higher education. In addition, through political channels as well as financial incentives, universities are pressured to discontinue certain lines of research, to violate academic freedom, and in a variety of other ways to undermine independent academic inquiry. In the face of these ubiquitous and increasing pressures, it is essential that universities continue to defend their traditional role in society.

One quintessentially American collegiate tradition, however, has recently gained disproportionate influence in our universities. Big-time college sports programs have become dangerously influential on far too many campuses. It is important to remember that universities do not need to derive funds from operating lucrative sports programs. Many great American universities do not do so (for example, NYU, University of Chicago, and Carnegie Mellon), while others do so at lower levels of competition (the Ivy League, elite liberal arts colleges, and so on). Nevertheless, far too many top-flight institutions have increasingly committed themselves to being competitive in the sports that generate large amounts of revenue from television and merchandising: football and men’s basketball. That most of those institutions actually lose money on those “revenue sports” has not discouraged more and more universities from trying to win a piece of that revenue pie. The illusory promise of big money from sports has created many problems for American universities, but many proposals to address those problems are deeply misguided. In particular, as I have written (e.g., here and here), recent calls to allow cash payments to players would move us in exactly the wrong direction.

In Ending the Sweetheart Deal between Big-Time College Sports and the Tax System, Professor Richard Schmalbeck takes a different tack, explaining how the current federal tax system exacerbates the problem and increases the incentives for universities to become ever more ensnared in the big-time sports trap. He describes two tax provisions—universities not having to pay the Unrelated Business Income Tax” (UBIT) on their sports-related profits, and a provision allowing a partial deduction for barely disguised added charges for admission to games—that are “egregiously bad,” and he concludes that “these defects amount to an implicit tax subsidy of college sports that is neither healthy nor in any way justified.” Because of space limitations, I will focus here only on the first provision. Suffice it to say that Professor Schmalbeck’s arguments regarding the second provision are as strong as those for the first, which is to say very strong indeed. Continue reading "Using the Tax Code to Help Universities Put Big-Time College Sports in (Some) Perspective"

 
 

Cultural Narratives and Legal Rights

A perennial question for scholars interested in social justice is how politically and socially marginalized groups can become full members of society. Jennifer Lee provides an important contribution to the literature addressing this issue. Building on insights from the social movement literature on strategic framing, Lee contends that strategic mainstreaming offers an opportunity for marginalized groups to obtain immediate benefits. Lee focuses on unauthorized immigrant workers and views strategic mainstreaming as a tool to successfully litigate workplace violations, petition for immigration status, and obtain desired public policy reforms.

Much has been written within the social science social movement literature about the role of frames and framing strategy in bringing about legal reform. Frames serve as tools for organizing and understanding information. Because of the relationship between cultural norms and law, framing offers a useful strategy for legal reform advocates. As Lee notes, “law is neither objective nor fixed but rather dependent on the relationship law shares with the dominant cultural and social patterns of society.” (P. 1068.) Consequently social movements seeking legal reform “are more powerful when the messages of the movement align with the values of mainstream culture.” (P. 1069.) Lee focuses on one type of framing strategy—mainstreaming. This is the process by which “interpretive frames correlated to dominant cultural values” are used “to create connections to mainstream society.” (P. 1064.) Through mainstreaming advocates seek to demonstrate common ground between those seeking reform and dominant cultural values. Continue reading "Cultural Narratives and Legal Rights"

 
 

Lifting the Lid on the Law Lords: The Workings of England’s Highest Court

In Final Judgment Paterson makes a triumphant return to the subject of his PhD undertaken forty years ago: the operation of the highest court in England and Wales. This update covers the transition required by the Constitutional Reform Act 2005, giving effect to a rhetorical separation of powers. The relevant part of this legislation as far as this account is concerned is the abolition of the jurisdiction of the House of Lords and its reconstitution, outside of Parliament, as the Supreme Court.1 (It is worth reading this in conjunction with Richard Moorhead’s review of Hanretty’s Political Preferment in English Judicial Appointments.)

The substance of the book draws on a number of sources, including over 100 interviews, many with members of both the House of Lords and the Supreme Court.2 Primarily it illuminates process issues, from the way that judges interact with the advocates appearing before them to how they come to their decisions.3 Indeed, the structure of the book is based on dialogues the court has with others and among its own members. Paterson details how the exchanges with counsel in the court progress and, importantly, the difference good advocacy can make to the outcome of a case. We get insights into how the justices own discussions shape the ultimate judgments and what importance is given to dissents in terms of individualism versus collegiality. To bolster this Paterson provides some statistics on justices’ voting patterns over the last 15 years. He also touches on politically sensitive dialogues the Court has with other courts as part of the UK belonging to the European Union. In this respect the UK Supreme Court mediates between the pan-European courts and the polity of the UK. Recent discussions on human rights and membership of the EU highlight the difficulties.4 The depth and quality of this material is sufficient to make this work important without more. However, the authenticity of the accounts, and Paterson’s honest handling of the material, by which I mean that he reports what he found, warts and all, adds to its value. Continue reading "Lifting the Lid on the Law Lords: The Workings of England’s Highest Court"

 
 

Why are Fictions so Common in Law?

Legal Fictions in Theory and Practice, (Maksymilian Del Mar and William Twining, eds., 2015).

Law is filled with legal fictions, roughly defined as statements known to be false but treated as true by legal actors to achieve a purpose. No one is deceived by legal fictions, and the consequences of the fiction are generally recognized. The early common law was filled with fictions, often utilized to satisfy pleading or jurisdictional requirements. Well-known examples are fictional statements about lease and ejectment necessary for the action of ejectment, and statements about goods lost and found necessary for trover.1 Perhaps the most infamous example is Mostyn v. Fabrigas (1773), when Lord Mansfield concluded that Minorca was in London for the purposes of obtaining jurisdiction in the case.2 By the nineteenth century, after Bentham’s caustic attacks on legal fictions,3 their prevalence in law had come to be an embarrassment. An American jurist critically remarked in 1841, “All manner of pleadings and proceedings, both in law and equity, are stuffed with falsehoods and lies.”4 In Ancient Law (1861), Sir Henry Maine acknowledged fictions serve the useful purpose of facilitating change in the law, but he considered them a discredit to modern legal systems.5  Yet, a century and a half later, fictions still continue to exist in law.

Maksymilian Del Mar and William Twining have produced a superb collection of 19 essays on legal fictions. The book begins with a splash, publishing a first-time English translation of Hans Kelsen’s 1919 response to Vaihinger’s influential book on fictions.6 In consistently high quality essays, subsequent chapters take up a broad range of issues. About half of the chapters involve theoretical explorations that focus on what fictions are, how they should be defined, what purposes or functions they serve, why they exist, what their implications are for law and language, how influential theorists have considered them (particularly Fuller, Bentham, and Vaihinger), and various other issues. Another set of chapters are oriented toward specific contexts of legal fictions, including the early common law, ejectment actions, Roman law, exclusionary rules, copyright law, tort law, Rabbinic law, securities law, and criminal law. Continue reading "Why are Fictions so Common in Law?"

 
 

Copyright’s Family Law

Of the many things that may cause us to admire an article, one is the author’s identification of a meaningful relationship between fields that had otherwise seemed entirely disparate. In the past year, two pieces—Tony Reese’s Be Careful Where You Die and Brad Greenberg’s DOMA’s Ghost and Copyright Reversionary Interests—identified just such a non-obvious nexus between a popular issue of great social importance (marriage equality) and a relatively obscure topic of great statutory technicality (termination of copyright transfers).

Both of these articles explore issues raised by two of copyright’s distinctive future interest provisions. Descendants of authors whose copyrights vested prior to 1978 are statutorily entitled, under certain conditions, to reversionary interests in those copyrights. And heirs of any authors stand to inherit the inalienable right to terminate transfers established by the Copyright Act of 1976. The trick, in each case, is that the heirs who enjoy these potential future interests—typically, the surviving spouse and children—are determined by statute, regardless of an author’s estate plan or preferences to the contrary. Continue reading "Copyright’s Family Law"

 
 

Cree Lawfulness and Unlawfulness

Tracey Lindberg, Birdie (2015).

I have thought about Tracey Lindberg’s novel, Birdie every day since I read it.1 The novel is an irreverent, evocative, funny, and hard-hitting book that causes me to think and ask questions about Indigenous law in recent history and today through the lives of the women unflinchingly drawn by Lindberg. I propose that Birdie be approached as a Cree law text—as a performance of law with difficult questions expressed and examined through narrative. This jot is an invitation to readers to join me in discerning law through one of the forms of Indigenous pedagogy and precedent, the narrative or story. I propose a brief legal analysis of Birdie based on the Cree law research completed by Hadley Friedland2 with the Indigenous Law Research Unit, Faculty of Law, University of Victoria.

Cree elder and storyteller, Louie Bird explains that in Cree society, the tasks of both telling and listening to stories are highly intellectual and demanding processes, beyond entertainment.3 He invites readers to attend to the stories by looking for questions, explanations, and subjects. He constantly challenges the reader to keep thinking by interrupting a story to ask, “So … why does the story say that?”4 Or, to ask whether a central character was using power properly.5 Bird’s comment on one story was, “So that is the mystery put into this story to make you think.”6 Continue reading "Cree Lawfulness and Unlawfulness"

 
 

The Case for Rate Regulation of Hospital Prices

Erin C. Fuse Brown, Resurrecting Healthcare Rate Regulation, 67 Hastings L. J. (forthcoming, 2015), available at SSRN.

With health spending in the U.S. outpacing both general inflation and spending by other developed nations, policymakers have targeted their attention on a primary culprit for our excess costs – high health care prices. Economists and other experts have offered a range of policy solutions to discipline health care prices in the United States. Using hospital prices as her case study, Fuse Brown provides a comprehensive analysis of these policies. In doing so, she guides the reader to two important conclusions: first, that there is no single solution that addresses the full range of market failures that cause high hospital prices and that a combination of approaches is therefore necessary; and second, that the package of solutions must include direct rate regulation of hospital prices for the most health care markets. This article builds on Fuse Brown’s earlier article, Irrational Hospital Pricing, 14 Hous. J. Health & Pol’y 11 (2014), which explains the harms caused by the current hospital pricing system.

Fuse Brown’s new article begins with a clear and succinct discussion of the market failures that cause high hospital prices. Most importantly, she explains how the growing concentration of hospital markets has reduced competition, removing a necessary price constraint. The article also discusses the principal-agent problems that plague health care, information asymmetries that leave the patient-consumer unable to make informed purchasing choices, and moral hazard created by reliance on third-party insurance to finance health care. Fuse Brown then explains the externalities that a dysfunctional hospital pricing system imposes on the uninsured and underinsured, such as harsh debt collection practices and personal bankruptcy. Continue reading "The Case for Rate Regulation of Hospital Prices"

 
 

How Families Gain Recognition

Elizabeth S. Scott & Robert E. Scott, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships, 115 Colum. L. Rev. 293 (2015).

Family law scholarship features a significant amount of normative work arguing for greater recognition of diverse family forms. Careful descriptive work analyzing how such families gain recognition is far less common. Elizabeth Scott and Robert Scott’s insightful new article, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships, forthcoming in the Columbia Law Review, critically mines this second vein. Scott and Scott shift the focus away from the question of why we should provide greater recognition to more family forms and toward the question of how the state comes to accept and recognize novel family arrangements.

Beginning from the premise that families with “the qualities of commitment, durability, and emotional and financial interdependence deserve legal recognition and support,” Scott and Scott elaborate an informal model by which new family forms demonstrate these qualities and gain state recognition. Continue reading "How Families Gain Recognition"

 
 

Jotwell 2015 Summer Break

Jotwell is taking a short summer break. Posting will resume on Tuesday, September 1. However, even while we’re on break, we’ll be accepting submissions, editing them, updating the site’s theme, and preparing new sections we plan to be launching in Fall.

If you like Jotwell, 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. Continue reading "Jotwell 2015 Summer Break"

 
 

What is a Theorist For? The Recruitment of Users into Online Governance

Kate Crawford & Tarleton Gillespie, What is a flag for? Social media reporting tools and the vocabulary of complaint, New Media & Society (2014), available at SSRN.

The problem of handling harassing and discriminatory online speech, as well as other forms of unpleasant and unlawful content—infringing, privacy-invading, or otherwise tortious—has been a matter for public discussion pretty much since people noticed that there were non-governmental intermediaries involved in the process. From revenge porn to videos of terrorist executions to men kissing each other to women’s pubic hair, controversies routinely erupt over whether intermediaries are suppressing too much speech, or not enough.

“Flagging” offensive content is now an option offered to users across many popular online platforms, from Facebook to Tumblr to Pinterest to FanFiction.net. Flagging allows sites to outsource the job of policing offensive content (however defined) to unpaid—indeed, monetized—users, as well as to offer a rhetoric to answer charges of censorship against those sites: the fact that content was reported makes the flagging user/s responsible for a deletion, not the platform that created the flagging mechanism. But the meaning of flags, Crawford and Gillespie persuasively argue, is “anything but straightforward.” Users can use flags strategically, as can other actors in the system who claim to be following community standards. Continue reading "What is a Theorist For? The Recruitment of Users into Online Governance"

 
 

Making People Pay – and Pay, and Pay

Wayne A. Logan and Ronald F. Wright, Mercenary Criminal Justice, 2014 U. Ill. L. Rev. 1175 (2014).

While budget crises have sparked efforts to curb the costs of mass incarceration, financial considerations have also intensified incentives for the aggressive use of a less-visible form of punishment—fines, fees, assessments, and related ways to make people pay. Collectively, these ways to extract money through criminal justice processing are called “legal financial obligations” or LFOs. The investigation into Ferguson by the U.S. Department of Justice yielded powerful insights into the hidden institutional pressures to raise revenue through pursuing community members and exacting LFOS. This hidden tax is harshly regressive—disproportionately imposed on community members who are often the least financially situated to pay.

Well before the Justice Department’s Ferguson report, Wayne A. Logan and Ronald F. Wright were sounding the alarm about institutional incentives to slam people with LFOs. Logan and Wright’s important article sheds light on the institutional incentives to extract money and the limited constraints to safeguard against what they dub mercenary justice. I have encouraged my students engaged in criminal justice advocacy and research to read and circulate Logan and Wright’s important article because it is compelling and accessible. The piece accomplishes an important feat for law review articles aimed at spurring reform—being of great value to scholars and specialists as well as a general audience able to act on reform proposals. Continue reading "Making People Pay – and Pay, and Pay"

 
 

A Pragmatic Approach to Interpreting the Federal Rules

Elizabeth G. Porter, Pragmatism Rules, 101 Cornell L. Rev. (forthcoming, 2015), available at SSRN.

With seventeen decisions interpreting the Federal Rules of Civil Procedure in the last decade, the Roberts Court has doubled the number of cases decided by its predecessor, the Rehnquist Court, in the same amount of time. This record-breaking streak has given scholars a unique opportunity to examine the contours and direction of the modern civil litigation system. Elizabeth Porter has taken this opportunity to discern the interpretive methodologies used by the Roberts Court when deciding Rules cases. In doing so, she makes a unique contribution not only to the literature on civil process, but also to the study of interpretation, focusing it away from statutes and instead onto the Rules.

At a time when much is at flux in the procedural world, in Pragmatism Rules, Porter discerns two primary competing interpretative methodologies in the Roberts Court’s Rules opinions. On the one hand, the Roberts Court interprets the Rules using the familiar tools of statutory interpretation. This go-to mode, although imperfect, works to provide rational, clear, and predictable outcomes. To the extent that Rules are like statutes, the Court can rely on the familiar markers of text, structure, and purpose when deciding Rules cases. The Court justifies its reliance on this mode by reminding the lower courts and parties that rule changes must come from the rulemaking process, not judicial adjudication. Continue reading "A Pragmatic Approach to Interpreting the Federal Rules"

 
 

Private Ordering in Corporate Litigation

Verity Winship, Shareholder Litigation by Contract, __  B.U. L. Rev. (forthcoming, 2015, available at SSRN.

The debate over litigation bylaws has been percolating in Delaware for several years, but it shifted into high gear last year, when the Delaware Supreme Court held unexpectedly that a fee-shifting bylaw was “facially valid.” ATP Tour, Inc. v. Deutscher Tennis Bund, 91 A.3d 554, 558 (Del. 2014). This decision prompted discussion of a corporate litigation crisis, which seems to have abated with action this summer by the Delaware General Assembly, passing legislation prohibiting fee-shifting bylaws and charter provisions for Delaware stock corporations. This legislation also addresses forum selection clauses, authorizing bylaws, or charter provisions designating Delaware as the exclusive forum for claims relating to “internal affairs” and prohibiting provisions designating courts outside of Delaware as the exclusive forum for such claims. Although the immediate threat of crisis has been abated, important issues remain regarding bylaw- and charter-provision-regulating corporate litigation. In Shareholder Litigation by Contract Verity Winship offers a useful framework for thinking about these issues.

Winship begins with a sensible premise: “procedural law should not be used to waive mandatory provisions of substantive law.” (P. 6.) Of course, she recognizes that the number of mandatory provisions in state corporate law is few, but she includes among those provisions “the core duty of loyalty claim within the umbrella of state-law fiduciary suits.” (P. 45.) This is a controversial claim, but one that seems to be shared by the Delaware General Assembly, as the implicit motivation for prohibiting fee-shifting is the desire to preserve fiduciary duty litigation. Continue reading "Private Ordering in Corporate Litigation"

 
 

Spillover Federalism

Gerken and Holtzblatt, The Political Safeguards of Horizontal Federalism, 113 Mich. L. Rev. 57 (2014).

An essay by Heather Gerken and James Dawson entitled Living Under Someone Else’s Law, 36 Democracy Journal 42 (2015) caught my attention several months ago. The topic was horizontal federalism, and the context was “spillovers,” extraterritorial effects that regulations of one state have on other states. Spillovers do not intentionally discriminate against a state’s neighbors or their citizens, do not favor insiders (citizens or businesses), and do not erect protectionist barriers at state lines. But spillovers have consequences, sometimes annoying, sometimes costly, for neighboring states.

Spillover examples include California emissions controls, Colorado marijuana legalization, and red state permissive gun-control regulations. Tighter emissions controls by California raised car prices to buyers in all states as national companies produced cars to comply with California rules. This adversely affected auto buyers elsewhere as surely as industrial pollution affected states downwind of the pollution. Likewise, recreational marijuana legalization increased drug trafficking across state lines, upsetting Colorado’s neighbors. Permissive gun sale laws in red states permit citizens in blue states to cross state lines, buy guns, and tote them home. Same-sex marriage bans in red states led, before the Supreme Court’s Obergefell decision, to concern in blue states: would their same-sex marriages be recognized (given ‘full faith and credit’) in neighboring states? The authors cleverly call this situation a “spillunder,” where under-recognition of one state’s law poses potential problems for its citizens when they are in other states.

In a longer article, The Political Safeguards of Horizontal Federalism, Gerken and co-author Ari Holtzblatt examine the underdeveloped legal literature and doctrinal signposts concerning spillovers and compare this virtual vacuum with the extensive literature concerning vertical federalism. They then suggest an approach to horizontal federalism premised on insights from vertical federalism scholarship. Continue reading "Spillover Federalism"

 
 

Administrative Law and the Corporate Governance Obsession

Mariana Pargendler, The Corporate Governance Obsession, 470 Stanford Law and Economics Olin Working Paper (2014).

The recent paper that has most provoked my thinking about administrative law is not a paper about administrative law at all, it is a paper about corporate governance. The Corporate Governance Obsession, by Mariana Pargendler is an account and a critique of the turn to corporate governance as a means of addressing social and economic issues that were once predominantly the concern of government regulation. By “corporate governance” Pargendler means the internal decision-making processes of corporations—in particular, the balance of power among shareholders, boards of directors, and managers. The article makes the case that internal corporate governance structures increasingly provide both the explanation for and a one-size-fits-all solution to pressing issues in policy arenas as diverse as systemic financial risk, income inequality, gender discrimination, labor rights, and environmental protection.

Why should administrative lawyers care? Because, she argues, corporate governance approaches to these issues are cannibalizing regulatory approaches that externally impose rules to influence the substance and outcomes of corporate conduct. Policy debate on the central social and economic issues of the day is no longer (or at least no longer exclusively) about how regulators should design and implement rules to shape the substance of corporate conduct in the public interest, but rather about how corporations should organize their own internal decision-making processes to address issues of public concern. This means that while we administrative lawyers occupy ourselves with our own obsessions—for instance the finer points of deference doctrine and regulatory review—the corporate governance obsession is chipping away at the substantive regulatory policies that made these issues relevant in the first place. Continue reading "Administrative Law and the Corporate Governance Obsession"

 
 

“Otherwise Unqualified” Individual with a Disability

Michelle Travis, Disqualifying Universality Under the Americans with Disabilities Amendments Act, __ Mich. St. L. Rev. (forthcoming, 2015), available at SSRN.

I have long admired Professor Michelle Travis’s work, but I was impressed all over again by her recent SSRN article, Disqualifying Universality Under the Americans with Disabilities Amendments Act, to be published in the Michigan State Law Review. There’s a lot to like in her piece, and I can’t begin to capture the entire article, but I do see a theme—“hidden in plain sight”—which I’ll try to sketch out here.

Professor Travis’s overarching argument is that the qualification question has become the emerging gatekeeper for ADA claims, threatening to replace the “disability” barrier that the courts erected and that Congress demolished with passage of the ADAAA. In a nutshell, because courts are putting the burden of persuasion on the employee to establish that she is a “qualified individual,” and that qualification requires an ability to perform the “essential functions” of the job, what is “essential” is often outcome determinative for ADA plaintiffs. Continue reading "“Otherwise Unqualified” Individual with a Disability"

 
 

Is Federal Preemption in Beneficiary Designation Cases Part of the Problem or Solution?

Those who practice in estate planning and probate law know all too well the problems associated with outdated plans. Specifically, we are frequently left to deal with disappointed family members who were expecting to receive certain property, only to find that, intentionally or unintentionally, the decedent did not include them. Statutes such as the elective share give surviving spouses protections against intentional omissions. Surviving spouses also benefit from rules of construction, such as pretermitted spousal share, and statutory protections, such as divorce revocation laws, that provide protection from unintentional omission based on stale plans. However, despite state efforts to protect them, surviving spouses remain vulnerable to stale beneficiary designations in life insurance policies and pension plans subject to federal regulation because of federal preemption.

Professor Langbein artfully challenges the long-standing principle of federal preemption of beneficiary designation in a pension plan or life insurance policy subject to federal regulation under the Employee Retirement Income Security Act (“ERISA”) or Federal Employees’ Group Life Insurance Act (“FEGLIA”). Specifically, he challenges the reasoning and policy merits of federal preemption as applied to state divorce revocation statutes by providing a critical analysis of Hillman v. Maretta, 133 S. Ct. 1943 (2013) and Egelhoff v. Egelhoff, 532 U.S. 141 (2001). Continue reading "Is Federal Preemption in Beneficiary Designation Cases Part of the Problem or Solution?"

 
 

Untangling the Relationship between Rights, Federal Power, and Inequality: The Legal Legacy of Reconstruction

“Black lives matter.” When spoken in law schools, these words have had a particular subtext. They expressed outrage at the lives taken in the name of the law, and despair at the distance between our legal ideals and the everyday legal encounters of people like Michael Brown, Eric Garner, and Freddie Gray. In the words of a statement signed by many of my UC Berkeley colleagues, law school communities “struggle to reconcile the constitutional values [taught] in the classroom with the reality that race determines how communities of color experience our legal system.”

Helping our students make sense of this dissonance requires that we bring history into our teaching, and further, that we go beyond stock narratives about the evils of Jim Crow and the victories of the modern civil rights movement. High on my list of teaching aides, going forward, will be Laura F. EdwardsA Legal History of the Civil War and Reconstruction. It offers both a concise overview of an important legal-historical moment and a bold argument. Reconstruction did more than “abolish slavery and bring Confederate states back into the Union,” Edwards explains; it “unsettled the nation’s entire legal order.” (P. 13.) The resulting legal changes encouraged all Americans—not just freed slaves—to see the world around them in terms of individual rights and to champion the value of equality. This is the very same vision that many entering law students carry with them today. Continue reading "Untangling the Relationship between Rights, Federal Power, and Inequality: The Legal Legacy of Reconstruction"

 
 

Theorizing Damage Through Reproductive Torts

Nicky Priaulx, Injuries That Matter: Manufacturing Damage in Negligence, available at BePress.

Of the five basic elements of the negligence cause of action (duty, breach, cause-in-fact, proximate cause, damage), the concept of “damage” (sometimes referred to as “injury” or “harm”) has probably received the least attention from torts scholars and certainly commands less time in the classroom. Indeed, the comparative lack of discussion likely exacerbates the common tendency to confuse the concept of actionable damage with the related topic of recoverable damages, i.e., those specific items of loss (such as medical expenses or sums paid for pain and suffering) that are a consequence of an actionable injury. In the U.S., controversial claims for negligent infliction of emotional distress and for reproductive injuries, especially wrongful conception and wrongful birth claims, have triggered debates under the headings of duty, proximate cause, or recoverable damages. Recently, however, Gregory Keating has argued that the concept of harm “can do more work than it is presently being made to do,”1  inviting more theorizing about what lies beneath the largely intuitive concept of harm or damage.

This ambitious article by British tort theorist Nicky Priaulx aims to fill the void by theorizing about the normative dimensions of the concept of damage. Although she doesn’t use the f-word (feminism) until the end of the piece when she discusses just whose injuries tend to be addressed by tort law, her approach is clearly informed by feminist scholarship, as is evident by her starting point that the concept of damage is “imbued with ideals of social justice and equality [and] directed towards treating like cases alike.” (P. 2.) But Priaulx’s legal feminism is of a newer stripe: it is as much about harm to men as it is about harm to women and is interwoven into a universal theory about how to shape tort law to fit the social experience of injury. Continue reading "Theorizing Damage Through Reproductive Torts"

 
 

Who Should be Invited to the Tax Dinner?: Another Perspective on the Role of Tax Professionals

Gillian Brock & Hamish Russell, Abusive Tax Avoidance and Institutional Corruption: The Responsibilities of Tax Professionals, 56 Edmond J. Safra Working Paper, available at SSRN.

As I began reading Gillian Brock and Hamish Russell’s new article entitled Abusive Tax Avoidance and Institutional Corruption: The Responsibilities of Tax Professionals, a colleague shared the following cartoon with me:

xkcd

Arbitrage by xkcd.com. Reprinted under a Creative Commons License.

Not surprisingly, I immediately interpreted the cartoon in light of Brock and Russell’s article: the functioning of the tax system depends, in part on our acknowledgement that certain behavior is important to its successful operation, even though that behavior may not have been formalized explicitly into the law. Of course there are differences between absconding with the “free” restaurant chips and facilitating abusive tax avoidance, but the essence of the critique seemed to be the same. Systems and relationships that depend entirely upon clearly articulated rules of engagement without any overlay of moral responsibility face serious challenges. Can we articulate an appropriate moral standard by positing, as Brock and Russell suggest, a world in which our conduct and its implications are widely known? One in which, for example, all diners and restaurants see the abuse of the free chips system.

Unfortunately, while it may be relatively easy to identify and agree upon the moral framework for dining out, it has been more difficult to establish a shared vision of the moral responsibility for curbing abusive tax avoidance. But Brock and Russell seek to ignite this conversation through their fresh perspective. Continue reading "Who Should be Invited to the Tax Dinner?: Another Perspective on the Role of Tax Professionals"

 
 

Speaking Truth About Power

Howard A. Latin, Climate Change Regulation and EPA Disincentives, 45 Envtl. L. 19 (2015).

In a four-decade scholarly career, my former colleague Howard Latin has never shied away from speaking truth to power. His writings have taken on all three branches of government, wealthy private interests like the auto industry, and entrenched academic orthodoxies (notably economic theories of environmental and tort law). More recently, he published an important book arguing that even the most ambitious conventional proposals to respond to anthropogenic climate disruption will not do enough, quickly enough, to mitigate the long-term harm that will result from high concentrations of greenhouse gases in earth’s atmosphere.

In Climate Change Regulation and EPA Disincentives, Latin casts a disappointed eye on the Environmental Protection Agency’s efforts to address greenhouse gas emissions using its authority under the Clean Air Act in the aftermath of Massachusetts v. EPA. Given the ineffable magnitude of the danger, the Supreme Court’s acquiescence, and a comprehending President, Latin asks: Why so timid, EPA? Drawing on many themes from his earlier work, he answers by speaking truth about power: the fossil-fuel-burning generation of electric power, the pressures that exert psychological and bureaucratic power within agencies, and the limited exercise of regulatory power seemingly conferred by statute. Continue reading "Speaking Truth About Power"

 
 

Do Hierarchy and Concentration Benefit Women Lawyers?

Ronit Dinovitzer and John Hagan, Hierarchical Structure and Gender Dissimilarity in American Legal Labor Markets, 92 Social Forces (2014).

After three decades of research on gender inequality in the legal profession, it is getting harder for any researcher to say something new. We know as facts that, in many countries across the world, female lawyers earn less than their male colleagues, have fewer chances of promotion, face various forms of gender penalty and sexual harassment in the workplace, and tend to leave the profession earlier and more frequently (see Kay and Gorman 2008 for a good review). However, very few studies have examined the macro-level factors that structure the patterns of gender inequality in the legal profession, such as the differentiation of the public and private sectors, the mobility of lawyers across geographic areas, or the supply and demand in the legal labor markets. This is precisely the approach that Dinovitzer and Hagan take in their recent study on hierarchical structure and gender dissimilarity in American legal labor markets.

The authors use data from the first two waves of the After the JD study, a longitudinal survey of a cohort of lawyers who entered the American legal profession in 2000 conducted by researchers at the American Bar Foundation. The survey included four major markets for legal services (New York, Los Angeles, Chicago, and Washington, DC), five additional large markets (Boston, Atlanta, Houston, Minneapolis, and San Francisco), as well as nine smaller markets. The concentration of high-status corporate legal work varies significantly across the three types of legal labor markets. Dinovitzer and Hagan use the concept of “hierarchical market structure” (HMS) to measure this macrostructural characteristic of the legal profession. Locales with a higher concentration of corporate legal work (e.g., New York) are higher on the HMS index, consisting of four items: elite law graduates, highly leveraged law firms (i.e., firms with high partner/associate ratios), lucrative billings, and corporate clients.

How does the HMS matter for gender inequality? As the authors demonstrate in their analysis, the leveraged nature of legal labor markets benefits women in notable and interesting ways. Continue reading "Do Hierarchy and Concentration Benefit Women Lawyers?"

 
 

On Health Status, Choice, and Immutability

Jessica A. Clarke, Against Immutability, 125 Yale L. J. (forthcoming, 2015), available at SSRN.

Jessica Clarke’s insightful forthcoming Yale Law Journal article, Against Immutability will be of particular interest to those of us writing and thinking about disability, obesity, equal protection, and discrimination. I found it especially helpful for ongoing work on health status discrimination—or, healthism—that Jessica Roberts and I are conducting. Professor Clarke’s thoughts are especially timely in light of the Supreme Court’s landmark decision in Obergefell v. Hodges. Although Justice Kennedy did not rely on immutability explicitly in recognizing the constitutional right to same-sex marriage, that reasoning implicitly underlies the Court’s reasoning.

Historically, discrimination law has drawn distinctions between “immutable” and “mutable” traits, recognizing the constitutional guarantee of equal protection for the “immutable” (e.g., race, gender, ethnicity, national origin) but not the “mutable”. The rationale is that individuals should not be disadvantaged on the basis of traits that they are powerless to change, or—put another way—traits that are not the individual’s choice or fault (the Court has referred to these as “accidents of birth,” see Frontiero v. Richardson, 411 U.S. 677, 686 (1973)). On the other hand, if the trait or characteristic is something within individuals’ control, it seems fair to treat them differently on that basis. In that way, the law can even serve to appropriately incentivize individuals to alter their “bad” conduct or choices and thereby gain the privileges enjoyed by others making the “right” choices. Continue reading "On Health Status, Choice, and Immutability"

 
 

Moral Argument in Legal Disputes: Why So Many Are Mistaken

David Plunkett and Tim Sundell, Antipositivist Arguments from Legal Thought and Talk: the Metalinguistic Response, in Pragmatism, Law, and Language, 56 (edited by Graham Hubbs and Douglas Lind, 2014).

In “hard” appellate cases, legal disputants sometimes offer moral considerations. Legal experts seem to back up claims about what the law is on a particular point with moral argumentation (whether or not explicitly posited legal material, such as a statute or a written constitutional provision, mentions moral considerations, one might add). One antipositivist argument credits the disputants with choosing epistemic arguments that reflect metaphysical truths, and concludes that the law depends at least in part on moral facts.

A familiar legal positivist response is that appearances are deceiving. The disputants are supporting a claim about what the law should be by moral argumentation, because the law at this point is indeterminate. Yet that’s not what many disputants would say, as their use the language of discovery suggests. To borrow an idea from Leiter, the positivist either concludes that the disputants are disingenuous (perhaps because the conventions of legal argumentation require them to appear to argue only about antecedent law) or that legal practitioners, legal scholars, and legal officials misunderstand what they are doing when they rely on moral argumentation. But how can so many experts be so mistaken? That’s what Plunkett and Sundell explain, and they do so plausibly, without denigrating the knowledge, honesty, or intelligence of the expert practitioners. Continue reading "Moral Argument in Legal Disputes: Why So Many Are Mistaken"

 
 

A Pluralistic Vision of Incentivizing Innovation

Daniel J. Hemel & Lisa Larrimore Ouellette, Beyond the Patents-Prizes Debate, 92 Texas L. Rev. 303 (2013).

In the 19th century, legal scholarship focused on legal doctrine. In the 20th century, legal scholars began to examine the policy effects of legal doctrine, paying particular attention to how changes in doctrine could yield better policies. Now, such policy-oriented approaches are cemented into nearly every U.S. law review article. Although this shift has in my view generally been beneficial, it still suffers from a doctrinal myopia: legal scholars usually write about only the swaths of law they know well, often overlooking other strands of law that are quite pertinent to the policy issues being addressed.

For example, although patent law scholars frequently opine about the nuances of patent doctrine and how changes in those nuances may affect innovation incentives, they have often ignored how other available policy tools—such as grants and government prizes—affect innovation. Although there is certainly law that deals with grants and prizes, it is rarely the subject of litigation and is fairly specialized (hence, occupying the minds of a small number of lawyers). None of it is taught in law schools. As such, law professors tend to know (and write) little about it. Continue reading "A Pluralistic Vision of Incentivizing Innovation"

 
 

Legitimacy’s Uncertainties: Exploring the Presumption’s Premises

The presumption of legitimacy is one of Euro-American family law’s most venerable doctrines. Under this well-known rule, a woman’s husband is presumed to be the father of any child conceived during marriage. Throughout the ages, the substance of the doctrine has been remarkably consistent: With relatively modest changes, it can be traced from Roman law through Canon Law, Civil Law, and the Common Law—and until recently, into the parentage statutes of a majority of U.S. states. But, as Susan Appleton correctly observed nine years ago,1 this ancient rule is now at a crossroads. On the one hand, it has been eroded by the rise of genetic paternity tests and the demise of laws that discriminate against children born out of wedlock. On the other hand, it has been given a second wind by extension to same-sex married couples and couples who use ART, who vigorously guard its value as a protection for their children. As a result, we are now at a particularly useful vantage point to review the promises of the presumption itself.

A new article shines light on the presumption and its many meanings. As Andrew Counter illustrates in Always Uncertain, the ideological underpinnings and consequences of the presumption have varied “enormously” in different places and times. Continue reading "Legitimacy’s Uncertainties: Exploring the Presumption’s Premises"

 
 

When Information Wields Power: The Inequalities of Credit Reporting in Abusive Relationships

Escaping Battered Credit: A Proposal for Repairing Credit Reports Damaged by Domestic Violence expands and develops Angela Littwin’s pioneering work on “coerced debt” within violent and abusive relationships. Littwin’s first study on this topic, Coerced Debt: The Role of Consumer Credit in Domestic Violence, offers a preliminary account of various ways in which “coerced debt” occurs, how it is experienced and its potentially devastating consequences for abused women. Escaping Battered Credit considers potential legal responses to the problem in the context of abusive relationships, and takes on the challenge of crafting a partial remedy that fits within the institutional structure of US consumer credit markets.

Littwin describes coerced debt as occurring “when the abuser in a violent relationship obtains credit in the victim’s name via fraud or duress” (P. 365), and defaults on the debt. Typical practices range from basic identity theft, as when the abuser applies for a credit in his partner’s name without telling her, through resort to physical and psychological violence to coerce abused women to apply for credit or release equity in their homes, to abusers structuring loan transactions to ensure that they enjoy the benefits of credit and the women they have abused are left with the debt liabilities. Coerced debt is related to the well-documented problems of “sexually transmitted debt” in which so-called “surety wives” guarantee loans to their businessmen spouses under circumstances of duress, fraud, or misinformation; and coercive microcredit which occurs when gender specific peer-lending programs expose poor women to the risks of being coerced into borrowing on behalf of their spouses. All three instances subject abused women to risks of liabilities to creditors to which they did not freely consent and against which law offers little protection, illustrating how market relations of credit and debt may constitute specific instruments of oppression within familial and intimate relationships, particularly, although by no means only, as those relationships fail. Continue reading "When Information Wields Power: The Inequalities of Credit Reporting in Abusive Relationships"

 
 

Internet Privacy: A Chinese View

The overall issue addressed in this book has received renewed attention recently. On April 1, 2015 President Obama issued the Executive Order “Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities,” which allows the Treasury Department to freeze assets of individuals and entities that are directly or indirectly involved in such activities. Furthermore in the beginning of April, in a series of meetings in China, US Homeland Security officials met with their Chinese counterparts to discuss cybersecurity issues. And in late April the US Department of Defense issued its latest document on cyber strategy that mentions – among other countries – China among the “key cyber threats.”

However, the chosen article focuses on an issue that is easily is forgotten in these grand debates: citizens’ privacy, since threats to privacy come from the inside as well as from the outside. The author is Professor of Communication at the School of Digital Media and Design Arts, Beijing’s renowned University of Posts and Telecommunications (BUPT). He starts with an overview on the present legal framework for protecting the Right to Internet Privacy in China. (P. 247) I still vividly remember a presentation I gave in October 1996 at the China Youth College for Political Science (now the China Youth University for Political Sciences) in Beijing on “The Function of Law in an Information Society” addressing privacy issues. At the end of my talk one of the Chinese students stood up and boldly asked me what my talk had to do with current situation in China. Continue reading "Internet Privacy: A Chinese View"

 
 

The Arrest Power Unchained

Eisha Jain, Arrests as Regulation, 67 Stan. L. Rev. 809 (2015).

In standard criminal procedure and criminology texts, the concept of “arrest” receives surprisingly little attention. Arrest is portrayed as a way station on the road to trial. It is also portrayed as a meaningful sorting device: a determination that the criminal justice system has just cause to restrict an individual’s liberty, if only temporarily. For those who view arrest in these terms, coverage of recent events has provided a dramatic crash course in the true nature and scope of the arrest power. In Ferguson, Missouri, for example, Michael Brown’s arrest, which gave rise to the chain of events resulting in his death, was for the crime of “manner of walking along roadway.” Arrests on this charge were frequent in Ferguson, and 95% of those arrests were of African-Americans. Across the U.S., arrests for seemingly innocuous behavior are common; discretion to make the arrest “custodial” is generally broad; and the burden of arrests for misdemeanors and minor infractions falls disproportionately on minorities. One in three adults will be arrested by the age of 23. For minorities, the odds are even more shocking: 49% for African-American men, and 44% for Latino men. Legal scholars such as Babe Howell and Alexandra Natapoff have examined the often- draconian consequences of such arrests on individuals, including the process costs of contesting the charges and the lasting stigma of an arrest record. And as powerful recent scholarship by Alice Goffman, Michelle Alexander and Jill Leovy drives home, the arrest power is properly understood not merely as a restriction on individual liberty, but as a means of social control that holds entire communities in the grip of the criminal justice system.

Eisha Jain, in her valuable, meticulously documented article Arrests as Regulation, describes and critiques an additional set of burdens triggered by the broad, poorly circumscribed power to arrest—burdens that reach well beyond the criminal justice system. Arrests are used as a proxy, or a low-cost auditing mechanism, by agencies regulating public housing, public benefits, licensing for various professions, education, child welfare, and immigration, as well as by employers and other non-governmental actors. These agencies and individuals use arrests as a means of monitoring and tracking individuals (for example legal immigrants, foster parents, school children) and a means of setting regulatory priorities (for example determining who is entitled to public housing or employment or professional licensing). Agencies and individuals rely on arrests to assess the individual’s potential for violence, risk to security, or instability. In short, as Jain succinctly states, we have delegated broad front-end screening discretion to individual police officers, thus magnifying the effects of arrest decisions. The reasons for the arrest (even assuming the arrest is justified) often have little relevance to the rationales underlying the regulations at issue. Moreover, the use of the arrests often proceeds unchecked by any of the safeguards that would apply in the criminal justice context. Continue reading "The Arrest Power Unchained"

 
 

The Power of Promises

Richard M. Re, Promising the Constitution, 110 Nw. U. L. Rev. (forthcoming, 2016), available at SSRN.

Many questions about the meaning of the Constitution are disputed. But however we answer those questions, at some point most of us come to a different question: so what? Why do those words on a page have any moral grip on the three-dimensional world of human beings? In one of my favorite new articles of the summer, Promising the Constitution, Professor Richard Re takes on this question and its implications. The answer, he says, is the constitutional oath, which simultaneously commands much less and much more than many have assumed. (Full disclosure: Re is a friend and former classmate.)

Re’s article makes three major contributions. The first is to argue that the oath is what gives the Constitution normative force in our world. We should see the oath not as an empty political ritual, but as a solemn assertion of a promise, with all the moral force that a promise carries. Of course, many philosophers are skeptical about the moral force of promises; but Re surmounts their objections by turning to the democratic context of the oath. While immoral promises and coerced promises might lack moral weight, the constitutional oath today should be seen as neither. Continue reading "The Power of Promises"

 
 

Rationing Constitutional Justice

Aziz Huq, Judicial Independence and the Rationing of Constitutional Remedies, 65 Duke L. J. __ (forthcoming 2015), available at SSRN.

It is easy to forget sometimes that our hallowed federal courts are a collection of organizations and therefore subject to the mundane limitations that organizations face.The judges who compose those organizations must determine how to wade through hundreds of thousands of cases each year—a task that has become more challenging in the past few decades, as the ratio of cases to judges has increased. Judicial administration scholarship has long sought to understand how increases in caseload affect court procedure and practice. More recently, scholars have tried to assess how caseload can impact substantive law.

Against this background, Aziz Huq makes a significant contribution with his forthcoming article, Judicial Independence and the Rationing of Constitutional Remedies. Continue reading "Rationing Constitutional Justice"

 
 

Whistleblowers as Securities Fraud Detectors

Securities fraud presents one of the more vexing challenges for financial regulators and policymakers. Each new financial crises and catastrophic fraud frequently begets new tools to fight securities fraud. In a thoughtful recent article, Better Bounty Hunting: How the SEC’s New Whistleblower Program Changes the Securities Fraud Class Action Debate, Professor Amanda Rose examines the SEC’s new whistleblower program as a tool for securities fraud detection, and explores its potential impact on the old fraud detecting tool of class action lawsuits.   The motivating argument of the article is that the SEC’s new Whistleblower Bounty Program (WBP) created by Dodd-Frank can serve as a superior alternative to the traditional fraud-on-the-market (FOTM) class action lawsuits as a tool for securities fraud detection and deterrence.

Professor Rose articulates this argument in a logical, measured fashion. She begins by providing background information on the origins of FOTM class actions and the WBP, which is designed to pay large sums to eligible individuals who provide valuable, original information about frauds that result in $1 million or more of penalties. Building on that background, Professor Rose then contends that the WBP could reduce the relative benefits associated with FOTM lawsuits while increasing their relative costs thereby making them a less desirable tool to combat securities fraud. With cautious optimism, she believes that the generous bounty of the WBP and the steep costs often associated class action lawsuits could ultimately lead tipsters who are aware of securities fraud to pursue redress through the whistleblower route rather than the class action route. However, to the extent that the WBP does not function as a feasible replacement for FOTM suits, Professor Rose introduces the innovative idea of adding a qui tam provision in the current whistleblower program as a modest improvement over FOTM suits. Continue reading "Whistleblowers as Securities Fraud Detectors"

 
 

The Reasons for Failures and Delays in Confirming Nominees Are More Complicated than We Think

I thought I had a good general understanding of the confirmation process until I read Professor O’Connell‘s enlightening study. Some of the findings were about what I expected. Thus, for instance, both the rate at which nominees fail to be confirmed and the time required for confirmation have increased significantly between 1981 and 2014. The failure rate was 26.4% in the George W. Bush Administration and 28.0% in the Obama Administration, compared with an average failure rate of 4.4% to 10% during the period 1885 to 2008. The average confirmation time was 127.1 days in the Obama Administration, compared with an average confirmation time of 88.5 days over the 33-year period of the study. The results of the high rate of failure and the lengthening delays are disconcerting. At any point in time, between 15% and 25% of senior agency positions are vacant.

As I would have predicted, the failure rate was four times higher in the last year of an Administration than in the first year of an Administration. Also as predicted, the 2013 reduction in the number of Senate votes required to enable an up or down vote on a judicial nominee from 60 to 50, at a time when the President’s party had a majority in the Senate, reduced both the number of failed nominations for judgeships and the average time until a nominee for a judgeship was confirmed.

Many of Professor O’Connell’s findings differed significantly from my expectations, however. Continue reading "The Reasons for Failures and Delays in Confirming Nominees Are More Complicated than We Think"

 
 

The Truth is Not Enough to Set Us Free

Erik J. Girvan, On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, (2015), available at SSRN.

Legal scholars in a wide range of areas have used now well-settled developments in cognitive psychology to argue for doctrinal changes in the definition of actionable discrimination. Implicit biases have been shown to cause discrimination against minorities and women, yet the law has developed to penalize only fully self-conscious race and sex-based decisions. Legal scholars and many lawyers’ organizations have enthusiastically embraced the social science that demonstrates people act on biases when they do not always self-consciously realize it, and have engaged in massive educational efforts with the idea that education will change people’s views of what discrimination is and their behaviors that perpetuate it. But changes in legal doctrine have not followed.

In On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, Erik Girvan draws on jurisprudential and psychological insights to explain why that is so, and he pledges to offer a path towards future research that will more likely lead to doctrinal change. In short the efforts have failed because scholars use classical legalist jurisprudence instead of legal realism and because scholars are victims of naïve realism. The classical legalist jurisprudential model fails to recognize the force of extra-legal influence on judges’ decision-making as explained by legal realism. And naïve realism is a social psychological theory of how people behave when they learn others do not share their beliefs. Naïve realists assume that education alone will change the doctrine. Continue reading "The Truth is Not Enough to Set Us Free"

 
 

What’s Missing in New Zealand?

“What’s missing in New Zealand?” That’s the question David Enoch poses in his thought-provoking essay, Tort Liability and Taking Responsibility. As every tort scholar knows, New Zealand has abandoned tort law, at least for injuries caused by accidents. Instead of filing a tort suit, a person injured in an accident files a claim with the Accident Compensation Corporation, which quickly determines whether she suffered a qualifying injury and, if so, provides compensation for it. The money paid out is funded through levies on risk-generating activities. So the New Zealand scheme provides compensation and (at least some) deterrence. It also puts the costs of accidents on the people who risk causing them. And it does all that at a lower cost than maintaining a system of private lawsuits, like tort. That sounds pretty good to Enoch—so good, in fact, that he wonders what is to be said for tort law in face of the New Zealand alternative.

Perhaps there is nothing to be said on behalf of tort. That’s what Enoch wants us to ponder. But he offers a tentative suggestion about what’s missing in New Zealand, and a rather surprising one at that. “What’s missing in New Zealand,” he says, “is the tortfeasor taking responsibility for her actions.” (P. 252) Now, we should pause here to acknowledge how odd that sounds. Many tortfeasors never take responsibility for their actions; they contest liability to the bitter end. Tort cannot ensure that tortfeasors take responsibility. What it can do, and does do, is assign responsibility, whether or not tortfeasors wish to take it. Continue reading "What’s Missing in New Zealand?"

 
 

Exploring the Expressive Dimension of Inheritance Law

Deborah S. Gordon, Letters Non-Testamentary, 62 U. Kan. L. Rev. 585 (2014).

We often get so caught up in the nooks and crannies of small corners of the doctrinal universe, examining tiny subsections of the Uniform Probate Code or the Uniform Trust Code with microscopic scrutiny, that we often forget about the big picture in our field. Deborah Gordon takes us back to that macro level in her thoughtful article, Letters Non-Testamentary. Like Daphna Hacker’s Soulless Wills, 35 Law & Social Inquiry 957 (2010), this article reminds us about the expressive dimension of inheritance law.

Gordon’s research focuses on language, emotion and gender in inheritance law. She began this work in her previous article, Reflecting on the Language of Death, 34 Seattle U. L. Rev. 379 (2011) and her new article continues this theme. It considers the connection between letters written in anticipation of death that are not valid testamentary instruments and their impact on inheritance law as a whole. Continue reading "Exploring the Expressive Dimension of Inheritance Law"

 
 

Equity and Efficiency in Rule Design

Great arguments aren’t always right, but they should be bold, persuasive, and force the scholarly community to respond by testing the arguments’ logic and limitations. In recent years, there are few arguments that have been more generative of thoughtful scholarship than Kaplow and Shavell’s claim that income redistribution should be done solely through the system of taxes and transfers and that legal rules should be chosen solely for their efficiency properties.1  This conclusion is instinctively repugnant to many scholars outside of the law and economics tradition, and surprising to many within it. Yet, first rank economists that they are, Kaplow and Shavell’s logic, at least under the assumptions of the model they use to make their argument, is unassailable.

But, what Kaplow and Shavell’s logic proves and what it has often been taken to prove are two very different things. Although many excellent scholars have offered incisive critiques of the Kaplow and Shavell result, Zach Liscow’s recent note in the Yale Law Journal does as fine a job as I’ve seen of both identifying the reason for this difference and arguing from within a welfarist framework that equitable considerations should apply to legal rules too. The note is admirable in its accessibility, clarity, and rigor. I would include it on the reading list for any law and economics or tax policy seminar that addressed the merits of redistribution through the tax and transfer system. Continue reading "Equity and Efficiency in Rule Design"

 
 

Questioning Compliance with Immigration Law

Lives and loves and wars have been lost because of assumptions about what other people thought or did. Our immigration laws and policies often rely on popular misconceptions about why people come to the United States without authorization and what will deter them or compel them to leave. Popular ideas about unlawfully present noncitizens have shifted over time toward a view that unauthorized border crossers are criminal aliens who constitute the kind of crisis that require the combined forces of the immigration and criminal enforcement systems to regulate.

Yet without knowing what unlawfully present noncitizens actually think or believe, it’s hard to say whether those laws and policies have it right. In Less Enforcement, More Compliance, Emily Ryo has confronted this question of what unlawfully-present people think about their own presence in the U.S. by doing what seems both obvious and fraught with obstacles: she asked them. Continue reading "Questioning Compliance with Immigration Law"

 
 

Gay Lib Goes to Court: The Marriage of Liberation and Rights

Michael Boucai, Glorious Precedents: When Gay Marriage was Radical, 27 Yale J.L. & Human. 101 (2015), available at SSRN.

Michael Boucai’s wonderfully observant history of early marriage equality struggles, Glorious Precedents: When Gay Marriage was Radical, paints a beautiful portrait of early 1970s gay life and of the gay couples who sued for the right to marry in Baker v. Nelson, Jones v. Hallahan, and Singer v. Hara.1 It enriches our understanding of the marriage equality movement in two ways—one retrospective and one prospective. Painstakingly combing through these first marriage equality cases, the article recovers these earlier marriage rights claims that sought to redefine the institution’s cultural and legal underpinnings and make it an agent of gay liberation. The article also looks forward to consider what this history might mean at the present moment given the distinct rhetoric and stakes of the contemporary marriage equality movement.

Rigorous method drives all great historical work. It is particularly important in work involving recent history, in which popular memory persists in a way that both aids and clouds a historical focus. Other histories of social activism, such as Serena Mayeri’s work,2  prove that adept historians can produce clear work on relatively recent social movements. However, Boucai faced a unique challenge in gathering the necessary material after AIDS decimated many of those at the heart of this historical struggle and scattered their documents. Boucai’s heavy lifting involved extensive local research, from community newspapers and activist pamphlets to interviews. Through these sources, he unveils a colorful and gripping tale of the plaintiffs in his three cases and how their political, sexual, and affective lives linked with them. Having come out a decade after this litigation, I was overjoyed to discover this history, some of which I had heard, but which has been largely absent from contemporary debates over marriage. Continue reading "Gay Lib Goes to Court: The Marriage of Liberation and Rights"

 
 

Something’s Afoot and it’s Time to Pay Attention: Thinking About Lawyer Regulation in a New Way

Andrew M. Perlman, Towards the Law of Legal Services, Suffolk University Law School Research Paper No. 15-5 (2015), available at SSRN.

We all know about tipping points…when something that previously seemed rare or unlikely acquires enough weight or momentum that the balance or status quo changes. As I read Professor Andy Perlman’s article called “Towards the Law of Legal Services” it occurred to me that we may be getting very close to a tipping point in the United States with respect to the issue of lawyer regulation.

Professor Perlman’s article argues that the time has come to “reimagine” our lawyer-based regulatory framework. He asserts that instead of focusing on the “law of lawyering” – which is how people in our field often refer to what we study – we need to develop a broader “law of legal services” that would authorize, but appropriately regulate, the delivery of more legal and law-related assistance by people who do not have a J.D. degree. He argues that reimagining regulation in this fashion will spur innovation and expand access to justice. Continue reading "Something’s Afoot and it’s Time to Pay Attention: Thinking About Lawyer Regulation in a New Way"

 
 

To Enumerate or Not To Enumerate: A Theory of Congressional “Great Powers”

Daniel Rice, Territorial Annexation as a “Great Power,” 64 Duke L.J. 717 (2015).

I have a soft spot for any argument that tends to show the relevance of long-settled constitutional controversies over territorial annexation to hotly debated current events. Even so, I wouldn’t write about this piece if I didn’t think it was well worth reading regardless of how much one cares about the United States’ imperial adventures of over a century ago—or about any given headline today, for that matter. The piece is a student Note by Daniel Rice in a recent issue of the Duke Law Review entitled Territorial Annexation as a “Great Power.” The annexations in question are those of Texas in 1845 and Hawaii in 1898—statutory annexations accomplished by Congressional joint resolution instead of by treaty. And the current event is Supreme Court’s decision in NFIB v. Sebelius in 2012. Rice’s Note makes a convincing case that the basic significance of the healthcare decision cannot be properly understood without a solid grasp of the debates around the constitutionality of Texas’ and Hawaii’s annexation. As Rice describes the evolution of doctrine on Congressional power and the Necessary and Proper Clause from McCulloch v. Maryland to NFIB v. Sebelius, it simply isn’t possible to get from the former to the latter, and fully understand where we’ve been and where we’re headed, without stopping to consider nineteenth-century territorial expansion.

Rice’s Note contributes to the debate on Chief Justice Roberts’ claim in NFIB v. Sebelius that, as Rice paraphrases it, “some powers are too important to be exercised merely through implication, even if they might be the most convenient means imaginable for executing Congress’ enumerated powers. These so-called ‘great powers’ are off-limits to Congress unless the Constitution specifically mentions them.” (P. 718.) Applying what Rice describes as this “conceptual bombshell” to the Affordable Care Act’s minimum-coverage provision, Roberts explained that the power to require individuals either to purchase health care or pay a fine—“the ability to create commerce, rather than regulate preexisting commerce” (again in Rice’s words)—qualifies as a “great power,” that is, a power “incapable of being claimed inferentially.” (P 720.) Continue reading "To Enumerate or Not To Enumerate: A Theory of Congressional “Great Powers”"

 
 

Roll Over, De Tocqueville

Martin Gilens and Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Perspectives on Politics 564 (2014).

“Money is the mother’s milk of politics,” said California pol Jesse Unruh, way back in the 1960s. Benjamin Franklin, in the 1790s, could not have said it more memorably; but wouldn’t it shock us if it had been Franklin, and not Unruh (or Karl Marx) who first said it? The certainty of death and taxes is a hard lesson, but it doesn’t prepare us for the bitter thought that politics is helpless before the power of money.

Students of American democracy have divided on the point. Martin Gilens and Benjamin I. Page assign the principal theories of American politics to four schools: Majoritarian Electoral Democracy, Economic-elite Domination, Majoritarian Pluralism, and Biased Pluralism. Majoritarian Electoral Democracy holds that policy outcomes are determined largely by the views of average citizens. Economic-elite Domination holds that policy outcomes are largely determined by the views of the wealthiest citizens. The two other types of theory focus not on individual voters, but on interest groups. Majoritarian pluralism is the view that policy outcomes are mainly responsive to pressures from mass-based interest groups. Biased pluralism maintains that pressure from business-orientated interest groups is what mainly determines state policy. Continue reading "Roll Over, De Tocqueville"

 
 

Estimating the Value of the Public Domain

Paul J. Heald, Kris Erickson and Martin Kretschmer, The Valuation of Unprotected Works: A Case Study of Public Domain Photographs on Wikipedia, 28 Harvard J.L. & Tech. (forthcoming, 2015), available at SSRN.

By now, most Jotwell readers will be familiar with the terrific empirical research that Paul Heald has been doing on the public domain. Now, Paul has teamed up with Kristopher Erickson and Martin Kretschmer, scholars at the University of Glasgow and the CREATe centre (which stands for Creativity, Regulation, Enterprise, and Technology). CREATe is a publicly funded multi-disciplinary program that provides research support to produce evidence-based assessments of IP policies—something I think we can all agree that we like lots.

Heald, Erikson, and Kretschmer (HEK) have recently posted a new paper that presents a section from CREATe’s larger empirical project on copyright and the value of the public domain. I strongly recommend the entire report, which includes two separate empirical studies, but will focus my comments on the shorter paper.

The authors begin by noting that copyright owners have become adept at offering quantitative assessments of the economic value that copyright industries produce. Although there are numerous estimates of the value of copyright law, there are, however, very few attempts to measure the economic value of the public domain. HEK’s paper begins to balance the ledger by estimating the value of a robust public domain for creative reuse.

To do so, the authors modify and extend a technique that was recently introduced by Abishek Nagaraj at MIT. The basic idea is to analyze Wikipedia pages for the use of photographs where the availability of photographs is affected by the public domain. HEK study the use of photographs of successful literary authors on their Wikipedia pages. Continue reading "Estimating the Value of the Public Domain"

 
 

Breaking Cartels to Stymie the Reproduction of Racism and Breaking them in Time

Daria Roithmayr’s book, Reproducing Racism: How Everyday Choices Lock in White Advantage, situates the reproduction of racism outside of intentionally inflicted racist acts. She argues that even if racism by individual design ceases, everyday decisions by Whites lock in the many decades’, and even centuries’, of entrenched structures of White advantage. Tracing the history of race in America especially from Jim Crow, Roithmayr illustrates how White advantage was locked in through wealth accumulation protections given Whites and denied Blacks, through the real estate market practices favoring Whites, in educational policies perpetuated through a de jure then a de facto system, through the use of incarceration and its rise against Blacks soon after the end of slavery, and even in the levels of Black infant mortality.

Using antitrust theories, Rotihmayr’s work explaining the cartel like structure of White advantage can be juxtaposed against Lani Guinier’s analogously familiar book from over twenty years ago. In Guinier’s book, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (1994), Guinier discusses the many statutory protections given to those who hold less than the majority votes in corporations. Guinier argues that just as minority ownership interests are given “a turn” in corporate law, such could also protect minority racial interests in our governmental democracy. Similar to Guinier’s use of principles from corporate law, Roithmayr uses principles from antitrust law. Guinier’s book focuses more on arguing the corporate law principles as remedies. Roithmayr’s book focuses more on identifying the antitrust cartel structure and showing the way for our own creative construction of remedies to break these cartels to stymie the reproduction of racism. Continue reading "Breaking Cartels to Stymie the Reproduction of Racism and Breaking them in Time"

 
 

A Revival of Lochner?

Thomas Colby and Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527 (2015).

Lochner v. New York (1905) has long been one of the most widely reviled decisions in Supreme Court history. The Court’s 1905 ruling striking down a New York maximum hours law for bakers under the Due Process Clause of the Fourteenth Amendment has been routinely denounced as callous, unjust, and based on blatantly fallacious legal reasoning. It is one of the leading members of the “anti-canon” of important Supreme Court decisions that almost all right-thinking people believe to be wrong. Thomas Colby and Peter Smith’s important new article argues that the longstanding dominance of this view of Lochner has begun to erode, at least among conservatives.

Colby and Smith provide an excellent account of why this trend began, and how it compares with previous developments in conservative and liberal legal thought. As they emphasize, even when the anti-Lochner consensus was at its height, liberals and conservatives opposed the decision for different reasons. For liberals, it became the leading symbol of an era in which the Supreme Court improperly intervened to shield “laissez-faire” economic policy against government interventions intended to protect workers and the poor. Especially after the New Deal revolution in constitutional law, they drew the lesson that Lochner was wrong because courts should generally stay out of “economic” issues, especially in cases where judicial intervention is sought for the benefit of the wealthy and business interests. Continue reading "A Revival of Lochner?"

 
 

An Internet X-Ray Machine for the Masses

Aldo Cortesi, et al., mitmproxy.

Thank you to the Jotwell editors for indulging me as I stretch their mission statement (and quite possibly their patience) by highlighting not an article nor even a conventional work of scholarship but rather a piece of software as the “thing I like (lots)”: mitmproxy, a tool created by Aldo Cortesi who shares authorship credit with Maximilian Hils and a larger “mitmproxy community.”

mitmproxy does just what it says on the tin (assuming you know how to read this particular kind of tin). It’s a Man-In-The-Middle Proxy server for the web. In English, this means that this tool allows you to reveal, with finely wrought control, exactly what your browser is saying and to whom. It is an X-ray machine for the web, one which lays many of the Internet’s secrets bare. Let me extol the many virtues of this well-designed piece of software, and after I do that, let me explain why I think this strikes me as an important contribution to legal scholarship. Continue reading "An Internet X-Ray Machine for the Masses"

 
 

Rethinking Proportionality in Punishment

Like the Chimera of Greek mythology, American penal thought has its own powerful and elusive forces. In the world of punishment, proportionality occupies a similar space in the American imagination. The fancy of proportionality is to balance the severity of punishment with the severity of crime. On its own, the task is herculean, yet in practice, success becomes absolutely elusive due to consequentialist considerations that continue to shape law and policy.

In this article, Lacey and Pickard show why proportionality cannot deliver on its promise of equalizing punishment. In the ‘neo-classical’ articulation, punishment has come to be understood as a morally appropriate equivalent to an offense, which in theory is constrained by the requirement of proportionality. However, the authors argue that proportionality generates in itself no concrete limits to punishment, and that the question of “how much” remains open to the sways of convention, political decision, and expediency. Continue reading "Rethinking Proportionality in Punishment"

 
 

Discovery and Self-Improvement

Joanna C. Schwartz, Introspection Through Litigation, 90 Notre Dame L. Rev. 1055 (2015).

Opponents of civil litigation portray it as one massive resource suck, focusing on its transaction costs and ignoring its social benefits–not only fair and accurate resolution of disputes, but also the potential for improved compliance with the laws governing civil society. Thus the current round of discovery rule amendments recite the usual claims about the expense of discovery, despite empirical research showing that discovery costs are actually quite modest in most cases. A number of civil procedure academics question the need for those new limits, even considering only costs.

Discovery’s benefits, while harder to measure, come in a number of forms. My last Jotwell essay highlighted the egalitarian information-sharing function of discovery. Steve Burbank’s forthcoming article, Proportionality and the Social Benefits of Discovery: Out of Sight and Out of Mind?, reminds us that lawsuits, including discovery, reflect the deliberate congressional policy choice of enforcing law through private litigation. And now Joanna Schwartz’s excellent article, Introspection Through Litigation, adds to the “benefits” side of the analysis. While Burbank focuses on benefits external to the litigants themselves, Schwartz calls our attention to a litigant-centered phenomenon: self-study, based on information unearthed and marshaled in the process of being sued. Continue reading "Discovery and Self-Improvement"

 
 

Is Administrative Law Unlawful? NO!

Adrian Vermeule, ‘No’ (Review of Philip Hamburger, Is Administrative Law Unlawful?), Texas L.Rev. (forthcoming), available at SSRN.

Last year, the University of Chicago Press published “Is Administrative Law Unlawful?” by Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at the Columbia University School of Law. A book by a named professor at a top-ten school published by a respected academic publisher with a provocative title would seem to be a must-read book for adlaw aficionados. His conclusion is that administrative law is unlawful, root and branch, because it is unlawful for administrative agencies to issue any rule or order that binds private parties. This is more than provocative; it is radical. Radically wrong. So wrong, one might wonder how it came to be published, and in any case so wrong that no one would take it seriously. Not so fast. In March, Justice Thomas cited it extensively in his concurrence in Department of Transportation v. Ass’n of American Railroads, 2015 WL 998536 (2015) to support his conclusion that the Passenger Rail Investment and Improvement Act of 2008 is an unconstitutional delegation of legislative authority, concluding:

We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.

In his review of the book, Adrian Vermeule, the John H. Watson Professor of Law at Harvard Law School, steps up to be the Dr. Van Helsing to drive the stake through the heart of this vampire. He minces no words:

The book makes crippling mistakes about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target.

And that’s just the beginning. Continue reading "Is Administrative Law Unlawful? NO!"

 
 

We Are What We Work

Where does the employee end and the employer begin? In The New Cognitive Property, Orly Lobel confronts us with employers’ ever-expanding reach into the craniums of their employees, both past and present. The article continues Lobel’s groundbreaking work into the intersections between employment law, intellectual property, and what she terms “human capital law.” Employers are bringing new legal tools to bear against employees to keep their ideas within the firm and prevent them from using their talents outside their current workplace. And as her research makes clear, the costs may be borne not only by these workers, but by our society and its capacity to innovate.

Lobel’s 2013 book Talent Wants to Be Free explained, for a more general and business-oriented audience, how restrictions on employees such as covenants not to compete, trade secrets, and the work-for-hire doctrine limit employees’ capacity to develop and use their human capital. As a result, workers are less able to develop this capital and less likely to want to do so. These themes are updated and further developed in The New Cognitive Property, which spends a great deal of time on the legal mechanisms themselves. Her discussion of human capital restrictions circa 2015 is an eye-opening read even for those well-versed in the traditional employer tools in this area. You may know about the shop-right doctrine, but did you know that employers are laying claim to employees’ ideas that are too abstract to be patented? You have likely heard about trade secret law, or even “inevitable disclosure,” but how about the criminalization of trade secret law, where one employee was sent to jail for emailing himself code that was largely open-source? And while covenants not to compete have a long and familiar lineage, Lobel brings us up to date with a dizzying array of post-employment restrictions: non-solicitation, non-dealing, non-poaching, and non-hiring clauses. Using a series of vivid examples, The New Cognitive Property artfully explores the manifold ways in which employers are claiming more and more of their employees’ human capital for themselves. Continue reading "We Are What We Work"

 
 

Too Young for a Will?

Mark Glover, Rethinking the Testamentary Capacity of Minors, 79 Missouri L. Rev. 69 (2014).

The primary goal of the law of wills is to allow individuals to decide how to distribute their property upon death. Yet, the vast majority of states prohibit minors under the age of 18 from distributing their property through a will. Interestingly, few scholars have questioned the reasons underlying this categorical denial of testamentary capacity to minors.

In his 2014 article, Rethinking the Testamentary Capacity of Minors, Professor Mark Glover examines the possible rationales for the rule and concludes that none of these justifications warrant denying all minors testamentary freedom. First, he addresses the justification most often cited by courts—the need to protect minors from the consequences of their own foolish decisions. Although no one would dispute that children do not always consider the potential consequences of their decisions (neither do adults), Professor Glover quickly illustrates that the testamentary context is probably the one area in which children need the least protection from the consequences of their imprudent decisions. To put it bluntly, a will only takes effect upon the testator’s death. As such, a child testator (like other testators) will not be alive to suffer the consequences of her foolish testamentary decisions. Continue reading "Too Young for a Will?"

 
 

Does Tort Law Stifle Innovative Medical Treatments?

Anna B. Laakmann, When Should Physicians Be Liable for Innovation?, 36 Cardozo L. Rev. 913 (2015).

The interaction between medical malpractice law and the provision of health care is the subject of an ongoing policy debate. Do physicians practice “defensive medicine” to avoid being sued? Does the high cost of liability insurance or the looming threat of unfounded malpractice claims drive physicians from particular specialties or regions of the country? These issues have dominated the debate for years. Recently, another issue has gained prominence. Does malpractice law deter physicians from adopting innovative procedures? This is probably more important than the question of whether tort law induces the practice of “defensive medicine.” Whereas “defensive medicine” ordinarily increases the cost of health care via the provision of unnecessary medical treatments, the deterrence of medical innovations has a direct impact on health outcomes.

Gideon Parchomovsky and Alex Stein argued in 2008 that tort law deters medical innovations because the legal standard of required or reasonable care is defined by customary medical practices. A physician who innovates necessarily departs from custom. When her innovations cause harm, she faces the prospect of incurring malpractice liability for her apparently “unreasonable” behavior. That physicians might forego non-customary treatments in order to shield themselves from potential tort liability has been confirmed by a series of empirical studies conducted by Michael Frakes and others. Frakes and his colleagues have found that after a state has rejected local customs in favor of national standards for defining the required care, local surgery rates converge toward the national rate. When the standard of reasonable care was defined by local customs, physicians who followed these practices could avoid the threat of liability that they would face if they instead followed national norms. When jurisdictions shifted the legal measure of proper care from local to national customs, a significant number of physicians began to comply with the national practices. Apparently, this change in behavior was motivated by the change in tort law’s test of reasonable care, not by any independent medical evaluation of whether compliance with the local or national custom was in the best interests of the patient. Continue reading "Does Tort Law Stifle Innovative Medical Treatments?"

 
 

Discrimination Against Interstate Commerce vs. Double Taxation

For good reasons on balance, the best academic work in tax (and other) law has moved far away in recent decades from focusing primarily on which answers to particular questions are legally correct. Not only have scholars wanted to pursue larger game than just the current, inevitably flawed, state of the law, but it is often hard to say what “legal correctness” means. Writing about policy, rather than just about legal correctness, not only broadens the menu of possible topics, but permits one to devise clearer criteria for assessing the merits of competing arguments.

There is, however, a downside to thus broadening, diversifying, and deepening the menu of favored topics. Having a positive influence on real world legal outcomes, especially if one can get there without having to tailor one’s analysis or conclusions in the manner of either a politician or a hired litigator, is both good in itself and something that we ought to care about—both as lawyers and as academics—as a matter of professional responsibility.

It is therefore a great thing to see tax academics and other members of the broader tax policy community actually swaying the outcome of a Supreme Court case in a good way. This happened in Comptroller v. Wynne, decided on May 18, 2015, in which an unusual Supreme Court majority composed of three conservatives (Alito, Kennedy, and Roberts) and two liberals (Breyer and Sotomayor) converged to strike down a Maryland income tax rule as discriminatory against interstate commerce. The majority opinion not only extensively cited work by tax scholars, but really relied on it, not just to decide the case at hand, but also to clarify the often-vexed law of how one should define discrimination under the dormant commerce clause. The Court drew on two amicus briefs (one by Michael Knoll and Ruth Mason and the other lead-authored by Alan Viard) which arose out of and/or applied academic work by both sets of authors,1  and gave both coherent economic content and usable formulations to the potentially nebulous idea of tax discrimination. Continue reading "Discrimination Against Interstate Commerce vs. Double Taxation"

 
 

Putting Employer-Provided Health Care in Context and Thinking about the Future

Brendan S. Maher, Regulating Employment-Based Anything, 99 Minn. L. Rev. (forthcoming 2015), available at SSRN.

Employer-provided health care occupies an uneasy position within health law. On the one hand, it is the primary source of health insurance coverage for non-elderly Americans and provides relatively robust coverage. On the other hand, linking health insurance availability to employment status and subsidizing such purchases through the tax code raises significant fairness concerns. The explanation for the Affordable Care Act’s continued reliance on employer-provided coverage was largely based on political expediency: health care reform had no chance of passing if it looked like the future of employer-provided health care was threatened. We were assured, after all, that if we liked our health plan we could keep our health plan.

Brendan Maher’s article, Regulating Employment-Based Anything, seeks to move our discourse away from merely relying on political expediency arguments to try to articulate the theory behind encouraging socially desirable goods to be provided through the compensation deal and, perhaps even more importantly, to articulate the theory behind employer-based interventions versus other forms of market interventions. While the article is not focused solely on health care, I found it very helpful in thinking through many of the issues involved in attempting to build a system of universal health coverage around an existing employer-based system. Continue reading "Putting Employer-Provided Health Care in Context and Thinking about the Future"

 
 

The Effective Early American State

For those of us working on the relationship between law and the American state, Max Edling’s first book, A Revolution in Favor of Government, was a welcome and necessary intervention. Work on the nineteenth-century state was slowly moving beyond the “courts and parties” thesis that portrayed the early American state as “weak.” But we lacked a systematic study of the United States Constitution as a blueprint for a strong American state. Edling filled that gap by demonstrating that the Constitution of 1787 established the foundations for a fiscal-military state that looked strikingly similar to its European competitors. A crucial piece to revising our understanding of the early American state was in place.

Traditional views die hard, however. For example, Sheldon Pollack, in War, Revenue, and State Building, argues that the early American fiscal-military state “remained extraordinarily weak” until the Civil War, and concludes that it “must be viewed as a notable failure” because of its lack of substantial fiscal-military powers (100-101). In A Hercules in the Cradle Edling challenges this construction by demonstrating how the federal government used the powers delegated to it by the 1789 Constitution to build a state with enormous extractive powers. Instead of reading the story of the American state backwards and comparing it to modern states, or evaluating it in light of modern theories of the state, Edling reads it forward comparing it to its contemporaries. Most fundamentally Edling interrogates the objectives of the early American state, and its ability to accomplish them. In other words, rather than asking whether the early American fiscal-military state was “weak” or “strong”, he asks whether it was effective. Continue reading "The Effective Early American State"

 
 

Not So Schizophrenic: The Founders’ Understanding of Indian Affairs and the Constitution

Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012 (2015).

Federal Indian law fits awkwardly in American constitutional doctrine, so much so that Justice Clarence Thomas has declared it “to say the least, schizophrenic.” Tribal nations are sovereign to some degree—they are not bound by the U.S. Constitution, possess substantial sovereign immunity, have police departments, courts, and broad regulatory powers, and hundreds of U.S.—tribal treaties still influence federal law. Yet the federal government has tremendous power over tribes and their members, states have significant jurisdiction in their territories, and tribal jurisdiction over non-tribal citizens is limited. Only a few words in the Constitution directly reference Indians or tribes at all. Obsolete phrases in the Apportionment Clause and Fourteenth Amendment exclude “Indians not taxed” from the population for legislative apportionment. More importantly, the Indian Commerce Clause grants Congress the power to “regulate commerce . . . with the Indian tribes.” Modern Supreme Court decisions locate Congress’ broad authority in Indian affairs in the Clause; more recently, Justice Thomas and some scholars have argued that this power is narrowly limited to trade; while other scholars argue that the Clause provides a constitutional basis for both state exclusion from Indian affairs and tribal sovereignty.

In a groundbreaking new article, Beyond the Indian Commerce Clause, Gregory Ablavsky rejects all sides of this debate. Ablavsky convincingly argues that although a narrow construction of commerce is not consistent with original understanding, the broader implications of the Indian Commerce Clause are deliberately ambiguous. Following an emerging approach to constitutional history, Ablavsky looks beyond the words of the Clause and its limited history to a greater range of constitutional actors and a longer temporal context. Canvassing statements and correspondence by the Washington administration, state officials, and others, Ablavsky argues that the founders located the Indian affairs power in the general constitutional status of the United States, and particularly the interplay of the nation’s military, territorial, commercial, and diplomatic affairs powers. (For the ways that concerns about Indian affairs affected the formulation of these constitutional powers, see Ablavsky’s The Savage Constitution, 63 Duke L.J. 999 (2014).) Continue reading "Not So Schizophrenic: The Founders’ Understanding of Indian Affairs and the Constitution"

 
 

Are Prosecutors the Constitution’s Gatekeepers?

Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 UC Davis L. Rev. 1591 (2014).

This is a bad time for the police officers. Last year, a series of cases in New York federal court exposed the NYPD’s stop and frisk policy as unlawful and racially biased. Following the shooting in Ferguson and the death of Eric Garner in Staten Island, thousands took to the streets to protest. The prosecutors in these two cases were widely criticized as well for failing to obtain indictments against the officers. Many wondered whether the prosecutors were complicit in a system fraught with inequality and prejudice. Secretary of State, Hilary Clinton, responded that the criminal justice system is “out of balance.” In a new article, Russell Gold argues that we can help restore the reputation of the criminal justice system by implementing what he calls, “administrative suppression.”

Administrative suppression would require prosecutors to decline to use illegally seized evidence even if courts would rule the evidence admissible. Prosecutors, in other words, have a constitutional and ethical obligation not to use evidence seized in violation of an individual’s Fourth Amendment rights. In the past few decades, the Court has radically restricted the scope of the exclusionary rule, and as a result, illegally seized evidence is often admissible in criminal cases. Gold argues that these decisions only pertain to the judicial branch. Rather than exploit the increasingly weak remedy to obtain more convictions, prosecutors, in their role as arbiters of justice and agents of the executive branch, should respond by refusing to use the tainted evidence in their cases. Continue reading "Are Prosecutors the Constitution’s Gatekeepers?"

 
 

Reframing (and Reclaiming) Pregnancy and Abortion

Khiara Bridges, When Pregnancy is an Injury: Rape, Law, and Culture, 65 Stan. L. Rev. 457 (2013).

In recent years, anti-abortion advocates have argued that abortion harms not only a developing fetus, it also harms the woman who chooses to terminate her pregnancy. These arguments, which Reva Siegel has termed “woman-protective anti-abortion argumentation,” have made their way into abortion jurisprudence.1  In the 2007 case Carhart v. Gonzales,  a majority of the Supreme Court characterized abortion as “a difficult and painful moral decision” that may cause women profound psychological, physical, and emotional harm.2

In response to these arguments and the judicial decisions that entrench them as truths, pro-choice advocates have sought to recast abortion in a more positive light. Katha Pollit’s recent book, Pro: Reclaiming Abortion Rights, seeks to strip abortion of its stigma by reframing it as a common part of a woman’s reproductive life—one that may have positive implications for the woman, her family, and society. Similar themes have surfaced in popular culture. In the 2014 movie Obvious Child, Donna, a struggling twenty-something, becomes pregnant after a one-night stand and decides to have an abortion. Donna’s decision is utterly devoid of the usual angst and drama that attends television and film depictions of similar scenarios. Indeed, she is matter-of-fact about the decision, never contemplating the possibility of raising the child herself or giving it up for adoption. More radically, Donna is no worse for the wear after her abortion. Indeed, she is pleased with her decision, confident that it was the right choice for her.

Amidst these popular efforts to recast abortion in a more positive light comes Khiara Bridges’s excellent article, When Pregnancy is an Injury: Rape, Law, and Culture. In the piece, Bridges considers criminal sexual assault statutes that characterize a pregnancy that results from rape as an injury—beyond the rape itself—to the victim. As Bridges observes, these criminal statutes are notable not simply because they identify those circumstances in which the crime of rape is aggravated and subject to heightened penalties; but because they construct pregnancy as an injury to women. As Bridges explains, the construction of pregnancy as an injury “runs counter to positive constructions of pregnancy within culture.” But it is not just that these criminal statutes disrupt the conventional narrative of pregnancy as a beautiful and blessed experience; by reframing pregnancy as an injury, the criminal sexual assault statutes also provide us with an opportunity to reconceive abortion as “a healing modality, serving to heal a woman of her injury.” Continue reading "Reframing (and Reclaiming) Pregnancy and Abortion"

 
 

Higher Education’s Brands in Cyberspace

Jacob H. Rooksby, Defining Domain: Higher Education’s Battles for Cyberspace, 80 Brooklyn L. Rev. __ (forthcoming, 2015), available at SSRN.

Professor Rooksby studies the way in which higher education institutions manage their brands online by enforcing their trademarks through domain name disputes. His article sits at the intersection of two lines of scholarly discourse. The first is literature about trademark law in cyberspace and the way that it has been privatized.1  ICANN’s Uniform Domain Name Dispute Resolution policy (UDRP) is the source of law for the majority of domain name-based trademark disputes, and platforms such as eBay and Google have incorporated their private trademark laws into their Terms of Use. The second is the “Internet governance” literature about the role of the domain name system and ICANN in cyberspace and the way in which ICANN is and is not a private government.2

Because UDRP disputes are resolved through online proceedings that are formally non-binding and non-precedential, scholars in the United States tend to leave these decisions in the shadows, focusing attention instead on the work of the federal courts. Taking a different tack, Professor Rooksby set out to find out how frequently U.S institutions of higher education initiated UDRP proceedings and why, with a particular emphasis on whether their enforcement strategies aligned with the free speech values upon which the modern academy is founded. Continue reading "Higher Education’s Brands in Cyberspace"

 
 

Law, Neuroscience and Neuroethics

Jens Clausen and Neil Levy (eds.), Handbook of Neuroethics (2015).

The relationship between the mind and the brain is a topic of immense philosophical, scientific, and popular interest.1 The diverse but interacting powers, abilities, and capacities that we associate with the mind and mental life both link humans with other animals and constitute what make us uniquely human. These powers, abilities, and capacities include perception, sensation, knowledge, memory, belief, imagination, emotion, mood, appetite, intention, and action. The brain, in interaction with other aspects of the nervous system and the rest of the human body, makes these possible.

Obviously, the relationship between the mind and the brain is enormously complicated. It is one thing to say that the mind (or some particular aspect of mental life, for example, pain) “depends on” (contract supervenience—the idea of no change in mental state without underlying change in physical (i.e., brain) state) the brain and another to say that the mind (or a particular aspect of it) just is the brain, or can be “reduced” to the brain (in the sense that it can be explained or explained away). Whether it can or cannot will depend on a number of empirical and conceptual issues. Continue reading "Law, Neuroscience and Neuroethics"

 
 

Bargaining for Equality

Nancy Leong, Identity Entrepreneurs, 104 Cal. L. Rev. ___ (forthcoming 2016), Available at SSRN.

Have you ever invoked an outsider aspect of your identity? Maybe, like many applicants in academia, you’ve discussed how you would contribute to the diversity of the institution you hope to join. Possibly, like Sarah Palin, you’ve found an occasion to emphasize the “unique perspective” of women; or like John Edwards and Rick Perry, you’ve highlighted your working class roots. Or, perhaps less likely, you’ve needed to revive your fan base and found that coming out as a sexual minority could be a good career move; or you’ve embarked on stardom in adult films and discovered Asian femininity is a great asset; or your celebrity as a rap artist includes not only race and gender, but also geographic credibility.

If so, Nancy Leong contends you are hardly the only “identity entrepreneur.” While Leong acknowledges the postmodern work on “performativity,” her conceptualization is Marxian and stresses the value of identity in our capitalist society underwritten by the rule of law. For Leong, being an identity entrepreneur is neither necessarily good nor bad. Entrepreneurs, she states, are increasingly respected and popular in America, even as to be “entrepreneurial” connotes a person who is “self-promoting, grasping, inauthentic, a climber.” For Leong, the term “appropriately reflects ambivalence about the practice of identity entrepreneurship.” It is a “complicated phenomenon with both positive and negative consequences.” Continue reading "Bargaining for Equality"

 
 

An Offer You Can’t Understand

Lauren Willis, Performance-Based Consumer Law, 82 U. Chi. L. Rev. (forthcoming), available at SSRN.

Two decades ago, contract law ran headlong into online terms of service, looked around briefly in confusion, and announced that it needed to go take a nap. It has not been heard from since. In its place we have something that looks like contract law, and claims to be contract law, but is oddly ignorant of things that the real contract law would know. This usurper, part Martin Guerre and part pod person, is formalistic to a fault, obsessed with meaningless details, lazy beyond belief, and utterly devoid of human feeling.

Generations of scholars have tried to unmask this impostor, to little effect. Lauren Willis’s Performance-Based Consumer Law offers a different and more promising way of protecting consumers from overreaching and incomprehensible terms of service. Consumer law cares about form contracts, too, but it can afford to be more realistic about how well consumers actually understand them — or don’t. Continue reading "An Offer You Can’t Understand"

 
 

“Driving While Black” Redux: Illuminating New and Myriad Aspects of Auto(matic) Inequality

Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship (2014).

In the wake of a recent spate of police killings of unarmed young, black males in various states, we have once again been reminded of the problematic connections between identity, crime and justice in the United States. For example, the stories surrounding the deaths of Michael Brown (Ferguson, MO), Eric Garner (Staten Island, NY), Tamir Rice (Cleveland, OH), and Walter Scott (North Charleston, SC) reflect the urgency of this Country’s lingering need to seriously consider the differential policing of African-American boys and men. The effect of the killings has been so dramatic that along with the death of Trayvon Martin at the hands of George Zimmerman in Sanford, FL, they have inspired a social movement, the motto of which is “Black Lives Matter”. While socially conscious movements stressing the need for equal treatment for people of color are important, in our ostensibly post-race world, large swaths of the citizenry are still likely to view with skepticism claims that racial animus and unconscious bias routinely infect policing. Within this context, little can be done to address vulnerabilities of the socially marginalized without the assistance of compelling empirical data. A new and excellent source of such research is found in Pulled Over: How Police Stops Define Race and Citizenship (2014). This book describes the results of research conducted by University of Kansas scholars Charles Epp, Steven Maynard-Moody and Donald Haider-Markel, which powerfully demonstrates how police practices not only reflect racial bias but operate to construct understandings of race and societal status.

The study at the heart of the text analyzes survey data for over 2300 police stops of motorists in the Kansas City metropolitan area. Based on 708 survey responses for drivers stopped by police, 30 percent of which were from black drivers (P. 20), a key finding of the study is that the effect of race on traffic stops depends on the justification for the stop. For traffic safety stops, which the authors describe as “must stop” situations involving potentially serious violations (P. 60), Blacks are less likely than Whites to a statistically significant degree to be provided such justifications for their stops. This is so because the most important influence on these stops is “how people drive.” (P. 64). With investigatory stops—essentially described as stops for low-level violations—by contrast, Blacks a more likely than Whites to a statistically significant degree to be provided such justifications. Low-level stops, then, are significantly influenced not by driver conduct, but “how they look.” (P. 64). Beyond this illuminating finding connecting the consideration of race in stops to the type of traffic stop, the study considers the relevance of a number of other driver and auto characteristics for police stops. Looking at such characteristics as gender, age, class and driver behavior, the data support additional findings for investigatory stops. (P. 68-69). For example, certain low-value vehicles—a marker for socioeconomic class—were stopped more often, race mattered more when drivers were perceived as driving in locations where they were “out of place” and that young Black males driving low-status vehicles were the most vulnerable minority drivers. (P. 70-71). These survey data alone add significant nuance to our understanding of how perceived driver identity and behavior affect policing. The study, however, also collected interviews from among the survey participants. (P. 21). Using these interviews, throughout the text the researchers weave in driver narratives that provide powerful qualitative evidence of how drivers internalize the consequences of racially disparate policing. Continue reading "“Driving While Black” Redux: Illuminating New and Myriad Aspects of Auto(matic) Inequality"

 
 

A Call for Providence in Class Action Reform

Maureen Carroll, Class Action Myopia, 65 Duke L. J. __ (forthcoming 2016).

Square pegs do not generally fit in round holes. When and if they do, the fit is certainly imperfect. Maureen Carroll calls on this adage to explain how courts and lawmakers are muddling the class action. In Class Action Myopia, Carroll argues that institutional actors’ singular focus on the Rule 23(b)(3) class action—what Carroll calls the aggregated-damages class action—negatively affects other types of class actions. Institutional actors fail to assess how perceived problems in the aggregated-damages context might not even exist in other class actions. Relatedly, actors do not anticipate how proposed solutions distinctively, and sometimes negatively, affect different class actions. This myopia, Carroll argues, must give way to providence.

Carroll begins by rehearsing the different types of class actions addressed by Rule 23: logical-indivisibility (Rule 23(b)(1)(A)), limited fund (Rule 23(b)(1)(B)), injunctive civil-rights (Rule 23(b)(2)), and aggregated-damages class actions (Rule 23(b)(3)). She argues that when Rule 23 was amended in 1966, the first three subtypes were designed to reflect common practice by courts and parties who were using some version of aggregate litigation to respond to specific litigation difficulties. For example, where a defendant wished to take water from a stream, it could not do so and only affect one downstream landowner and not others. But litigating disputes between the defendant and various landowners separately might lead to inconsistent judgments. Rule 23(b)(1)(A) thus provides that a class of potential claimants can combine their claims and seek one consistent judgment. Carroll explains how this same historical pedigree applied to limited-fund and injunctive civil-rights class actions—these subtypes were created to deal with existing complexities facing courts and largely codified best practices that had developed in response. Moreover, these subtypes were meant to address unfair outcomes produced by individual litigation in these specific contexts. Continue reading "A Call for Providence in Class Action Reform"

 
 

Rethinking Insider Trading Regulation

  • Yesha Yadav, Insider Trading in Derivatives Markets, 103 Georgetown L.J. 381 (2015)
  • Yesha Yadav, Structural Insider Trading, Vanderbilt Law and Economics Research Paper No. 15-8 (March 27, 2015), available at SSRN.

The question of distinguishing between the informational advantages insiders and outsiders may and may not legitimately exploit in trading in the financial markets is perennial: is securities regulation about achieving a level playing field for investors or about imposing sanctions for certain fiduciary and fiduciary-like breaches of duty which go beyond traditional remedies for such breaches. The Second Circuit’s decision in US v Newman emphasizes the fiduciary duty component of liability: at least in a criminal case involving tipping by insiders “the Government must prove beyond a reasonable doubt that the tippee knew that an insider disclosed confidential information and that he did so in exchange for a personal benefit.”

In these papers Yesha Yadav focuses on two specific problem areas in insider trading regulation, relating to trading in credit default swaps (CDS) by lenders and “structural” trading using a combination of preferential access to information and locational advantages. Both examples present arguments for a rethinking of how insider trading regulation should address the realities of modern, complex, financial markets. Continue reading "Rethinking Insider Trading Regulation"

 
 

How Do We Know When Speech is of Low Value?

Genevieve Lakier, The Invention of Low-Value Speech, Harv. L. Rev. (forthcoming), available at SSRN.

Bedrock First Amendment law calls for the Supreme Court to apply strict scrutiny to the government’s content-based regulation of speech. Except when it doesn’t. Over time, the Court has identified several categories of expression as sufficiently “low value” to trigger a First Amendment analysis less suspicious than strict scrutiny, thus enabling greater government regulation of that speech. These categories have included commercial speech, true threats, incitement to imminent illegal action, “fighting words,” obscenity, defamation, fraud, child pornography, and speech that is integral to criminal conduct. This subject, and what we think we know about it, is the focus of Genevieve Lakier’s valuable new article, The Invention of Low-Value Speech. Especially useful and novel for its strong historical look at the long first era of First Amendment law prior to the twentieth century, it is also important as a refutation of the Court’s current approach that purports to rely entirely on historical analysis to identify categories of low-value speech.

Taking a categorical approach to First Amendment protection, of course, requires a methodology for determining which speech belongs in which categories. In its decision in United States v. Stevens, 559 U.S. 460 (2010), the Supreme Court surprised many observers with its insistence that historical tradition alone has driven its determination that a category of expression is of only low First Amendment value. The Stevens Court struck down a federal statute that prohibited the commercial creation, sale, or possession of depictions of animal cruelty. In so doing, the Court rejected as “startling and dangerous” what it characterized as the government’s proposed “free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.” To be sure, the Court started by acknowledging that, “[a]s the Government correctly notes, this Court has often described historically unprotected categories of speech as being ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” The Court went on to assert, however:

But such descriptions are just that – descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor. When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. . . . [but we have instead] grounded [our] analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.

Stevens thus made the descriptive clam that the Court has relied only on historical analysis to identify categories of low-value speech (i.e., that it has focused on whether courts have historically treated the contested expression as low-value), rather than on balancing analyses that identify contested expression as “low-value” when its threatened harms outweigh its capacity to further key free speech values. Continue reading "How Do We Know When Speech is of Low Value?"

 
 

The PTO Is Not the Only Patent Agency

  • Tejas N. Narechania, Patent Conflicts, 103 Geo. L. Rev. (forthcoming 2015), available at SSRN.
  • Jacob S. Sherkow, Administrating Patent Litigation, 90 Wash. L. Rev. (forthcoming 2015), available at SSRN.

In these new articles, Tejas Narechania and Jake Sherkow push the contextualizing trend in IP scholarship in a novel direction. As noted by Rob Merges, scholars are increasingly recognizing that formal IP laws are embedded in a broader economic context, and this wave of scholarship includes case studies of fields in which innovation is supported by norms and market incentives (like fashion, cuisine, roller derby names, and tattooing) and increased analysis of non-IP mechanisms like tax credits and direct transfers through which the state provides significant financial support for innovators. But in addition, I think this contextualizing move involves recognition that the innovation ecosystem is shaped not only by non-IP laws and norms, but also by a broad array of institutions.

Most discussions of institutional actors in patent law have analyzed interactions among the Federal Circuit, the Supreme Court, Congress, and the PTO. But these two new articles by Narechania and Sherkow focus on administrative agencies beyond the PTO. Building on terrific work by scholars such as Arti RaiSapna Kumar, and Kali Murray, Narechania and Sherkow provide detailed examples of the ways in which agencies such as the FTC, FCC, ITC, NIH, and FDA have played key roles in influencing patent policy. Continue reading "The PTO Is Not the Only Patent Agency"

 
 

Getting from “May We?” to “Should We?” at the NSA

Margo Schlanger, Intelligence Legalism and the National Security Agency’s Civil Liberties Gap, 6 Harv. Nat’l Sec. J. 112 (2015).

Margo Schlanger’s article, Intelligence Legalism and the National Security Agency’s Civil Liberties Gap, is an important contribution to both administrative and national security law. She explains in illuminating detail how the NSA, the hub of so much controversial electronic surveillance activity, is not a rogue enterprise, but deeply enmeshed in and committed to a complex regime of legal compliance. The question she poses is why so elaborate a compliance system is seemingly ineffective in advancing civil liberties values more robustly. Her argument is thematically related to an earlier and equally thoughtful paper, Offices of Goodness: Influence Without Authority in Federal Agencies (reviewed here), which likewise explored the difficulties for administrative agencies in honoring overarching values that are relevant to their programs, but which may appear as orthogonal to a particular agency’s specific primary objectives. (Think about the Department of Transportation promoting park land conservation or the Army Corps of Engineers protecting endangered species.)

Professor Schlanger argues that, within the NSA, the applicable legal rules are insufficient to induce a proper balance between the likely security gains from a particular surveillance initiative and the privacy and civil liberties risks and costs entailed in that initiative. Constitutional restrictions won’t produce the optimal balance between costs and benefits because the scope of constitutional rights doesn’t turn on that balance. Policy is not a major factor driving constitutional interpretation concerning the scope of individual privacy rights, especially where courts may not fully grasp the privacy implications of programs under review. (And, of course, private lawsuits are likely to exert little leverage over the intelligence community because the state secrets doctrine will insulate many government practices from effective—or any—judicial challenge.) Continue reading "Getting from “May We?” to “Should We?” at the NSA"

 
 

Organ-izing Your Estate

Reid Kress Weisbord, Anatomical Intent, 124 Yale L.J.F. 117 (2014).

Professor Reid Kress Weisbord’s article astutely addresses the growing problem of demand outpacing supply for organ donations needed for lifesaving medical procedures. Professor Weisbord’s discussion of the debate surrounding whether compensation should be allowed for posthumous organ donations to encourage higher donation rates focuses on the parameters of a proposed regulatory system to respect the wishes of the donor. This respect for the decedent’s preference for whether their organs may be sold by his or her estate forms the foundation of the article and is referred to by Professor Weisbord as “anatomical intent.”

The article describes a system that would allow compensation for organ donations by striking a balance that both encourages donation by avoiding unnecessary hurdles, and yet still deters fraud and undue influence. Professor Weisbord addresses this balancing act by suggesting specific parameters for registration of anatomical intent that are “sufficiently secure to protect the donor but sufficiently simple to avoid deterring willing donors from registering their intent,” and default rules when no expression of anatomical intent has been made that “respect the autonomy, privacy, and religious liberty interests of non-donors by presuming that the decedent prefers to prohibit the postmortem sale of his or her bodily remains absent an affirmative indication of intent to donate.” Continue reading "Organ-izing Your Estate"

 
 

The Symbiotic Relationship Between Privacy Law and Anti-Discrimination Law

Jessica L. Roberts, Protecting Privacy to Prevent Discrimination, 56 Wm. & Mary L. Rev. (forthcoming, 2015), available at SSRN.

Jessica Roberts’ upcoming article, Protecting Privacy to Prevent Discrimination, explores the pros and cons of enacting privacy protections to thwart discrimination. Using the Genetic Information Nondiscrimination Act (GINA) as her primary example, Roberts argues that the two areas of law may “operate symbiotically rather than separately.” Thus, privacy law may be used to further anti-discrimination goals and vice versa.

Roberts’ article contains a thoughtful discussion regarding the different principles underlying privacy law and anti-discrimination law. The article also raises interesting issues about the extent to which the right to privacy has, over time, evolved. As originally conceived, the privacy torts and their statutory counterparts sought to further the norm of autonomy. The wrong that resulted from an intrusion upon an area of solitude or the public disclosure of a private fact was the invasion of privacy itself. But Roberts suggests that privacy law may also be used as a means of preventing and addressing more tangible harms occurring in the employment context by working in harmony with anti-discrimination principles. Continue reading "The Symbiotic Relationship Between Privacy Law and Anti-Discrimination Law"

 
 

Do Corporate Managers Have a Duty to Avoid Taxes?

Reuven S. Avi-Yonah, Just Say No: Corporate Taxation and Corporate Social Responsibility __ NYU J. Law & Bus. __ (forthcoming), available at SSRN.

The recent wave of corporate inversion transactions, in which domestic companies essentially move their headquarters abroad to lower their U.S. tax bill, is just the latest in a decades-long trend of aggressive tax avoidance behavior by corporations. From the government’s perspective, inversions and other tax avoidance strategies erode the U.S. tax base and impose a costly enforcement challenge on Treasury and the IRS. But from the perspective of corporate managers, aggressive tax planning may simply be part of the corporation’s duty to maximize shareholder value. Reuven Avi-Yonah questions this latter proposition in Just Say No: Corporate Taxation and Corporation Social Responsibility. He offers a compelling argument that corporate managerial duties are not hopelessly at odds with the goal of promoting better corporate tax compliance.

Avi-Yonah frames the issue of corporate tax avoidance as one of corporate social responsibility (CSR). If it is legitimate for corporations to engage in activities that do not directly benefit shareholders—for example, involvement in philanthropic causes—then it should be legitimate for corporations to act as good tax citizens. On the other hand, if CSR is outside of the scope of legitimate corporate functions, then presumably corporations should seek to minimize their tax liability as much as possible. Continue reading "Do Corporate Managers Have a Duty to Avoid Taxes?"

 
 

Do Voluntary Compliance Programs Really Improve Environmental Law?

Cary Coglianese and Jennifer Nash have added yet another thoughtful contribution to the debates over whether voluntary compliance programs can significantly improve environmental law and policy. This thorough and careful empirical review of the most important voluntary environmental compliance programs is essential reading for anyone interested in environmental law and policy.

In the 1990’s and early 2000’s, a strong strain in environmental legal scholarship argued that environmental regulation was too punitive, inflexible, and rigid. According that scholarship, regulation punished regulated parties who sought, in good faith, to comply with the law; it imposed regulatory standards without regard to the benefits of the regulation as applied to a particular regulatory party, or of the feasibility or appropriateness of compliance for a particular regulatory party; it was unable to keep up with complex and rapid economic and technological change. Many of these critiques were initially raised and made prominent by Bob Kagan and Eugene Bardach, beginning with their 1982 book Going by the Book: The Problem of Regulatory Unreasonableness. Continue reading "Do Voluntary Compliance Programs Really Improve Environmental Law?"

 
 

The New World Order for Lawyers and the Legal Profession(s)

Ronit Dinovitzer & Bryant Garth, Lawyers and the Legal Profession, (UC Irvine School of Law Research Paper No. 2015-19), available at SSRN.

One of the main concerns of the authors is the structure of the legal profession in which perpetual reproduction of hierarchies forms a contest among different elements of the profession. The configuration of the profession shapes its research which places corporate lawyers and firms at the top of the hierarchy. This seems to stem from the early Cravath idealisation of law firm development. Even though the Cravath model dates from the late 19th century, it reverberates still in the 21st century and has captured scholars’ thinking. It appears difficult to shake off these established idealisations and models when discussing the legal profession. Dinovitzer and Garth (D&G) endeavour to show how these cleavages rip through the study of legal professions.

“Lawyers and the Legal Profession” draws on the research done on the structure of the legal profession, its divisions, lawyers’ backgrounds (gender, ethnicity, class), law firms and globalisation. The range is broad but there is one caveat, which is most of the work referred to is based on research done within the US. It is legitimate to question this given the global differences between legal professions, regulatory systems and the like. Although the Cravath model might have been the blueprint for law firm organisation that was exported by American lawyers—and its residues are apparent—whether it remains the dominant model is open and contested, even, perhaps, within the US. See, for example, the rise of the “smart” law firm (Wald). I return to this later. Continue reading "The New World Order for Lawyers and the Legal Profession(s)"

 
 

Bricolage Jurisprudence

Roger Cotterrell, Why Jurisprudence Is Not Legal Philosophy, 5 Jurisprudence 41 (2014), available at SSRN.

Most people who use the terms at all treat “jurisprudence” and “legal philosophy” as interchangeable terms. In “Why Jurisprudence is Not Legal Philosophy,” Roger Cotterrell argues for a distinct meaning for the two terms, and for a greater emphasis on jurisprudence, in comparison to what he perceives as undue current attention to and an unduly high valuation of legal philosophy.

For Cotterrell, legal philosophy is the application to law, usually at a high level of abstraction, of ideas from philosophy, sociology, economics, or other disciplines in the humanities or social sciences. His particular concern is that much of what goes on under “legal philosophy” today—in particular, under what he calls “contemporary legal positivism”—inclines towards questions about what is true “essentially” or “necessarily” of all legal systems (or legal systems “in all possible worlds,” he might have added). These kinds of inquiries might be the sort of thing that is of interest to professional philosophers, Cotterrell maintains, but they are of little interest—and little use—to practicing lawyers. Continue reading "Bricolage Jurisprudence"

 
 

Fair Use Safe Harbors?

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

So much has been written on the fair use case law in the U.S. that it would seem nigh impossible to find something new to say about it. But new things are indeed possible. Michael Donaldson, who practices entertainment law in Los Angeles and has represented many clients in copyright disputes in the film industry, has made four significant contributions to the fair use literature in his article “Refuge From the Storm: A Fair Use Safe Harbor for Non-Fiction Works,” which was published in the Journal of the Copyright Society in 2012.

One contribution is the concept of fair use safe harbors. Copyright professionals are used to speaking of safe harbors when it comes to the statutory limits on liability of Internet service providers for the infringing acts of others. Some of us also use that term when discussing the judge-made limit on secondary liability for developers of technologies having substantial non-infringing uses. But we have shied away from the safe harbor concept in fair use cases, perhaps because the Supreme Court was unwilling to endorse presumptions of fairness for parodies in its Campbell v. Acuff-Rose decision. Donaldson’s article makes a persuasive argument that a fair use safe harbor does exist for certain uses of pre-existing materials in non-fiction works, and it opened my mind to the possibility that other fair use safe harbors might also exist. Continue reading "Fair Use Safe Harbors?"

 
 

An Intimate Look at the Rise of Data Totalitarianism

Dave Eggers, The Circle, Vintage Books (2014).

One of the greatest challenges faced by cyber scholars and policymakers is how to predict the undesired social consequences of technological developments and to design the best policies to address them. Digital technology makes this challenge even harder: change is swift and getting swifter, and is often formulated in technical terms.

This is where legal scholarship and policymaking could benefit from a novel. The Circle by Dave Eggers is a dystopian novel about the digital era. Many legal scholars have written over the past decade on the surveillance society, big data, contextual privacy, the right to privacy, the right to be forgotten, transparency and accountability. However, the analysis of these issues in the legal literature remains abstract. The Circle offers a mirror image of our daily digital experiences, helping us to imagine what it would be like to live in a society of total transparency, and to experience the gradual loss of autonomy. The Circle tells a story about the human condition in the info era, the ideology of the digital culture, and the political structure which serves it. It could help us see in real time the social implications of digital technology, identify the forces that come into play, and design more concrete strategies to address them. Continue reading "An Intimate Look at the Rise of Data Totalitarianism"

 
 

Restructuring Family Law

Why does our current family law system so frequently fail children, and how can we fix it? These are the central questions asked by many family law scholars. Often, the proposed solution is a substantive one. Many scholars, for instance, have advocated altering the “best interests” standard, changing the rules for establishing parentage, or expanding marriage to include same-sex couples so that their children can enjoy greater stability.

In her book, Failure to Flourish: How Law Undermines Family Relationships, Professor Clare Huntington offers a different perspective. For Huntington, family law’s failure is less a matter of substance and more a matter of structure. The law is structured in ways that actively undermine family flourishing. Some of these structural features have obvious impacts on family law. Marriage laws that exclude LGBT couples, for example, are structural impediments to long-term stability for these couples and their children. But many of the structures Huntington identifies are ones that we may not realize undergird family law. Access to public transportation, the existence of sidewalks, playgrounds, and community spaces, and zoning laws that permit multi-generational dwellings, for example, all influence the daily lives of families, encouraging or discouraging families to become embedded in their communities and to be able to balance work, school, and leisure, all of which are factors that lead to long-term stability and flourishing. Many of these structures are designed without consideration for their effect on families. Continue reading "Restructuring Family Law"

 
 

Moving Beyond the Pregnant/Non-Pregnant Dichotomy in Pregnancy Discrimination Law Based on the Lived Experiences of New Mothers

Saru M. Matambanadzo, The Fourth Trimester, 48 U. Mich. J.L. Reform 117 (2014).

In The Fourth Trimester, Saru Matambanadzo braids personal narratives of her own pregnancy and birthing experience with legal analysis and with concepts and research from nursing and midwifery to craft a rich and courageous critique of current employment law’s application to pregnant women and new mothers. Matambanadzo’s thesis is that the law erroneously treats pregnancy as a discrete nine-month timeframe when in fact the physical and emotional effects of pregnancy linger, extending “into the first three months after delivery, and sometimes beyond.” (P. 124). She also addresses the shortcomings of laws that protect against pregnancy discrimination more generally. The Fourth Trimester concretely illuminates the ways in which the limitations of the current framework of federal law disadvantage workers who become pregnant and give birth by, for example, failing to adequately support breastfeeding and to provide the time needed after birth for the mother-infant dyad to become less interdependent.

Matambanadzo’s compelling arguments add a new dimension to legal scholarship on pregnancy in that they challenge not only the treatment of pregnant workers but also the firmly ingrained notion of pregnancy itself. Indeed the dichotomy between pregnant and not pregnant is paradigmatic in American culture—so much so that it exemplifies other black and white dichotomies, as illustrated by the expression that one cannot be “almost pregnant.” Matambanadzo successfully convinces the reader to rethink the notion of pregnancy itself. Continue reading "Moving Beyond the Pregnant/Non-Pregnant Dichotomy in Pregnancy Discrimination Law Based on the Lived Experiences of New Mothers"

 
 

Democracy as a Cause of and a Solution for Hyper-Incarceration

Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio St. J. Crim. L. 133 (2011).

One of the last articles written by the late Andrew Taslitz (known as Taz to his friends) was entitled The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration. The piece is quintessentially Tazian. It brings together Taz’s concern for racial minorities and criminal defendants, his belief in the reformist potency of democracy, and his fascination with social scientific findings (including research on “happiness”!), in a provocative effort to tackle the single biggest problem in our criminal justice system today: mass incarceration. His prescriptions in the article—in particular his assertion that “populist, deliberative democracy” can be a way of softening the harshness of American criminal justice—are worth taking seriously.

As Taz described it, populist, deliberative democracy (or PDD) is not regular old democracy. Rather, in the criminal justice context it involves all “social groups,” including convicted offenders, in deliberations that take place in multiple venues, with the expectation that “compromise rather than domination” will occur. He contrasts this type of democracy with “raw populism” that is not deliberative and that tends to be based on less information about competing interests. Although Taz did not think PDD would by itself result in less reliance on incarceration, he does marshal some strong evidence that it could move the country in that direction. Continue reading "Democracy as a Cause of and a Solution for Hyper-Incarceration"

 
 

Standing (in) for the Government

Seth Davis, Standing Doctrine’s State Action Problem, 91 Notre Dame L. Rev. __ (forthcoming 2015), available at SSRN.

Eugene Diamond, a pediatrician, took it upon himself to protect and uphold the constitutionality of Illinois’s Abortion Law of 1975, which, among other things, imposed criminal liability on doctors who performed certain abortions. Diamond himself was not affected by the law, as he did not perform abortions. Indeed, he wanted to prevent them.

In 1983, when the Northern District of Illinois enjoined enforcement of parts of the law as unconstitutional, the State of Illinois declined to defend the law any further, leaving only Diamond to defend the law on appeal. After losing the appeal, Diamond petitioned the Supreme Court to let him defend the constitutionality of the law, asserting his right to defend as “a doctor, a father, and a protector of the unborn.” But in Diamond v. Charles, the Supreme Court concluded that Diamond had no such right to defend, calling Diamond’s actions “simply an effort to compel the State to enact a code in accord with Diamond’s interests.”

In his excellent article, Standing Doctrine’s State Action Problem, Seth Davis addresses when a party such as Diamond can assert a state’s interest in a lawsuit under Article III of the Constitution, which limits lawsuits to “Cases” or “Controversies” between parties who meet requirements such as standing, ripeness and lack of mootness. The question of who can assert the state’s interests arose again recently in Hollingsworth v. Perry, which involved an amendment to the California Constitution, voted on by citizens of California directly through the state’s referendum system, banning same-sex marriage. As in Diamond, the proponents of the amendment sought to defend its constitutionality on appeal when the State of California declined to do so. The Supreme Court concluded that the proponents lacked standing. Relying upon principles of agency, the Court concluded that the proponents cannot stand in for the state because the state could not exercise control over the proponents’ actions. In dissent, Justice Kennedy noted the irony of insisting on state control of the proponents when the whole point of the California referendum system is to allow citizens to bypass state control of the legislative process and to propose laws directly to the people. Continue reading "Standing (in) for the Government"

 
 

Deterring Both Spur-of-the-Moment and Carefully Planned Corporate Crimes

Miriam H. Baer, Confronting the Two Faces of Corporate Fraud, 66 Fl. L. Rev. 87 (2014).

How many different law review articles cite work by Kahneman and Tversky, progenitors of law and behavioral economics? At least two thousand, two hundred and seventy-three (2,273).1 And this does not include articles like Professor Baer’s which do not cite Kahneman and Tversky, but cite law review articles which do. Law and behavioral economics is a law professor industry. And, why not? It doesn’t require math and who doesn’t like Brain Games?

How many different law review articles cite work by Oliver Williamson, progenitor of the new institutional economics? At least one thousand, two hundred and fifty-four (1,254).2 Although smaller, this also reflects an industry which incorporates ideas of agency cost or of just opportunism, which Baer says is, “according to Oliver Wiliamson’s famous definition, a form of self-interest seeking with guile” (P. 99.)

What is the overlap between these 3,527 articles? That is, how many articles cite both Kahneman and Tversky and Williamson? At most 82 (2.3%).3 Of course, one might also ask what percentage of the smaller number of Williamson-citing papers cite Kahneman and Tversky, yielding a larger but still small number (6.5%). By and large, these appear to be two different lines of scholarship; two different industries.

Miriam H. Baer argues that both lines need to be considered concurrently. Why? The methods and structures of organizational compliance need to deter both deviance originating in individual departures from rationality (the law and behavioral economics line) and individuals whose rationality departs from that of the organization as an entity (the new institutional economics line). To complicate matters, in ways Professor Baer doesn’t highlight, such deterrence also sometimes cut against each other. Call it “the lure of the taboo.” Creating a culture that enshrines non-opportunistic values creates psychological pressures to evade. Sociologists talk about the normality of deviance, but you can just think of the attractiveness of shrimp to those raised in an Orthodox Jewish culture. (And let’s agree to not discuss other taboos). Continue reading "Deterring Both Spur-of-the-Moment and Carefully Planned Corporate Crimes"

 
 

Secession, Then and Now

Alison L. LaCroix, Continuity in Secession: The Case of the Confederate Constitution (forthcoming), available at SSRN.

Secession has been back in the news of late. Hundreds of thousands of individuals across the country signed petitions seeking permission for their states to leave the United States after President Obama’s reelection; Governor Perry riffed on Texas’s departure from the Union “if Washington continues to thumb their nose at the American people”; and members of the Second Vermont Republic insist the Green Mountain State would be better off alone. Overseas, a bid for Scottish independence from the United Kingdom nearly prevailed last fall.

A curious feature of many contemporary secessionist movements is their claim to represent the real nation-state from which they seek to depart. The paradigmatic secession case involves a self-consciously distinct national group trying to throw off the yoke of the state encompassing it. But many of today’s movements instead embrace the nation-state they would leave behind, insisting they are truer to its founding principles than the current regime. Alison LaCroix’s provocative and illuminating essay, Continuity in Secession: The Case of the Confederate Constitution, not only sheds light on the most important secessionist movement in American history, but also offers new purchase on this feature of contemporary law and politics. Continue reading "Secession, Then and Now"

 
 

The Place of Permits in the Quiver of Administrative Action

Those of us who write in administrative law often get stuck in the ruts created by the categories set out in the Administrative Procedures Act—especially rulemaking, adjudication and judicial review. Therefore, it is refreshing and often path breaking when an article appears that delves into an important aspect of administrative action that cuts across those ruts rather than following them. That is all the more true when the article is as well executed as The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State by Eric Biber and J.B. Ruhl.

Nominally, The Permit Power Revisited is a response to a piece Richard Epstein wrote, almost twenty years ago, lambasting administrative permitting as a “racket” rife with agency abuse.1 But the article does not so much respond to that piece; rather it lays out what the permit power encompasses and how agencies use it to fill gaps that otherwise would exist in regulatory schemes. In doing so, The Permit Power Revisited categorizes permits along a continuum and demonstrates how judicious choice of permitting along that continuum can contribute to effective and responsive regulation. Continue reading "The Place of Permits in the Quiver of Administrative Action"

 
 

Reaching Outside the Box to Ensure Equal Opportunity

In “Beyond Title VII: Rethinking Race, Ex-offender Status, and Employment Discrimination in the Information Age,” Professor Kimani Paul-Emile sets forth a compelling analysis of the harm and prejudice engendered toward minority populations by employers’ use of criminal background inquiries. She then proposes a novel regulatory scheme whereby employers would evaluate job applicants for employment fitness prior to factoring in any type of criminal background.

Whether or not one ultimately comes down on the side of regulating employer criminal background inquiries and subsequent actions taken on the basis of those inquiries, there is undeniable appeal in at least considering this scheme, which Professor Paul-Emile calls the Health Law Framework. Her framework is interesting because it transcends the traditional realm of regulation in this area—Title VII and the Fair Credit Reporting Act (FCRA)—and borrows from the arena of health law, specifically the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), to forge a thoughtful, integrated proposed mechanism for regulating employer use of criminal background inquiries. Continue reading "Reaching Outside the Box to Ensure Equal Opportunity"

 
 

Law on the Books Meets Law in Action

David Horton, Wills Law on the Ground: Empirically Assessing Probate Reform, 62 UCLA L. Rev. (forthcoming, 2015), available at SSRN.

This article contains a fascinating study of a year in the life of a probate court in one California county. Professor Horton uses his data to examine the fit between existing wills doctrine (derived from the small number of disputed estates that become reported appellate decisions) and routinized probate administrations. In other words, how does wills law on the books compare to “Wills Law on the Ground”? Horton frames his analysis within the existing debate in the field between “formalists” (who favor strict compliance with wills act rules even if intent-defeating) and “functionalists” (who reject formalism for its own sake favoring an intent-serving-standards-based wills act). Most state lawmakers and judges sit squarely in the former category; whereas, the latter faction includes the brain trust behind the Restatement (Third) of Property: Wills (Restatement) and the Uniform Probate Code (UPC). Part I of Horton’s article aptly describes several areas in will execution (attestation, holographic wills, and harmless error) and will construction (ademption by extinction and antilapse) where the contrast between the two camps is most stark.

Part II describes Horton’s empirical methodology and reports the results. The study examined every probate administration in Alameda County, California (CA) from January 2008 to March 2009 relating to decedents dying in 2007.1 After discarding abandoned matters and those involving pour-over wills, the dataset consisted of 571 cases. Fifty-seven (57) percent of these decedents died with a will and 43 percent without. After providing descriptive statistics on testate versus intestate estates (cost, length, litigation, beneficiaries), Horton analyzes how the data informs the issues that drive a wedge between formalists and functionalists. Continue reading "Law on the Books Meets Law in Action"

 
 

Contractualism and Tort Law

John F. K. Oberdiek, “Structure and Justification in Contractualist Tort Theory,” in John Oberdiek (ed.), Philosophical Foundations of the Law of Torts (Oxford University Press, 2014).

In addition to serving as the editor of Philosophical Foundations of the Law of Torts (OUP 2014), John Oberdiek has provided his own contribution, an excellent and penetrating chapter entitled Structure and Justification in Contractualist Tort Theory. (Full disclosure: John Goldberg and I have a co-authored chapter in the volume.) In it, Oberdiek offers a careful, original, and important analysis that brings together tort theory and the moral and political theory of contractualism, especially as developed by today’s leading contractualist, Thomas M. (“Tim”) Scanlon.

Economic theories of tort law derive from a roughly utilitarian framework for thinking about normative questions and numerous corrective justice accounts derive from a broadly-speaking Kantian framework. If one felt stuck between economic accounts that were too reductive and corrective justice accounts that were too focused upon abstract Kantian rights, one might ask whether social contract theory has anything to offer tort theory. George Fletcher’s Fairness and Utility in Tort Theory answered “yes,” and famously contributed Rawlsian ideas to tort theory. As Oberdiek helpfully explains, Gregory Keating’s work over the past twenty years has developed strong Rawlsian themes in tort theory in a more extensive and defensible manner than Fletcher’s evocative but concededly underdeveloped article. In negligence, products liability, and the law of nuisance, for example, Keating has admirably constructed a tort theory based on Rawlsian themes of fairness and reciprocity.1 Continue reading "Contractualism and Tort Law"

 
 

Non-U.S. Acquirers: Clients for U.S. Targets’ “Locked-Out” Earnings?

Andrew Bird, Alexander Edwards, & Terry J. Shevlin, Does the U.S. System of Taxation on Multinationals Advantage Foreign Acquirers? (January 15, 2015), available at SSRN.

Did Burger King submit to acquisition by a Canadian donut chain for tax reasons? Or, at least, once Burger King and Tim Hortons decided to merge, did they choose to have a Canadian parent for tax reasons? A recent empirical study by Andrew Bird, Alexander Edwards and Terry Shevlin suggests that one tax factor—the existence of “locked out” offshore earnings—increases the likelihood that a non-U.S. acquirer will acquire a U.S. target. Bird, Edwards and Shevlin analyze thousands of merger transactions, without regard to whether the transactions might be labeled “inversions.” Their paper contributes to the considerable literature that tests the idea that accounting and tax disparities affect firm prices and transaction decisions.

Bird, Edwards and Shevlin examine several thousand public company firms with a parent corporation incorporated in the United States, for example under Delaware law. Each of the firms in the sample was acquired between 1995 and 2010. The paper considers the possibility that these target U.S. firms might have been acquired by U.S. or non-U.S. acquirers. Bird, Edwards and Shevlin find that when a U.S.-parented target corporation has more offshore “locked-out earnings,” the target firm is more likely to merge with a non-U.S. acquirer rather than a U.S. acquirer. Continue reading "Non-U.S. Acquirers: Clients for U.S. Targets’ “Locked-Out” Earnings?"

 
 

Addressing the Health Care/Public Health Dichotomy through Justice

Lindsay F. Wiley, Health Law as Social Justice, 24 Cornell J.L. & Pub. Pol’y 47 (2014), available at SSRN.

A longstanding and confounding divide exists between treatment of the individual and care for the collective. While the former is deemed health care, the latter is called public health, and American medicine has long maintained this dichotomy (a story that Paul Starr told decisively in The Social Transformation of American Medicine). This divide exists not only in the medical establishment but also in the law pertaining to it. While the field called health law tends toward being subject matter inclusive, it paradoxically has excluded public health law as a separate discipline. In part, this dichotomy may result from public health’s focus on the whole community rather than individual relationships, rights, and treatments. But also, this divide is strengthened by the historic primacy of private law rather than public law in health care, a hierarchy that has reinforced bias toward protecting medical stakeholders’ rights in their professional space. In addition, the law has sidestepped race, gender, economic, and other disparities in health care, allowing inequalities to fester. Though health care reform took on some of these issues, health disparities are a persistent problem. Fortunately, Professor Wiley is battling these old lines with her new work.

Health Law as Social Justice makes a convincing case that health law includes more than health care finance, bioethics, and regulation of related entities and markets. Instead, Wiley argues, health law and public health must be intertwined to effectively battle health disparities. The article contends that such a merger could be facilitated by drawing on the social justice movement and its understanding of the societal factors that affect certain industries and their corresponding fields in the law. Wiley argues that America’s deeply entrenched health disparities can only be uprooted by the communitarian considerations inherent in the booming study of social determinants of health, which she urges can translate to policy reform, effective advocacy, and legal change through broadened health care law inquiries. Continue reading "Addressing the Health Care/Public Health Dichotomy through Justice"

 
 

The Borders of Human Rights

Moria Paz, Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls (Stanford Public Law Working Paper No. 2526521), available at SSRN.

What is the relationship between international human rights law and migration? Though many might assume a simple one – human rights protect migrants – the reality is much more complex, raising profound questions about state sovereignty, politics, and the nature of international law. In her new paper, Human Rights, Immigration and Border Walls, Moria Paz maps out the central tension of this relationship, providing an insightful and balanced description of deep structural problems with the current human rights approach to migration.

Paz defines clearly for the reader the tension between sovereignty and individual rights that underpins the relationship between human rights and migration. She argues that the two normative doctrinal approaches available to resolve questions of migration necessarily clash. According to Paz, the human rights approach locates the right to a minimum level of human dignity in the individual, whether or not that individual has complied with formal immigration requirements. Yet these rights exist in a statist international legal regime that provides states with absolute authority to decide who can enter, “under what conditions, and with what legal consequences.” In other words, states and their members have the right to decide who can become a member of their political community and how the state’s resources will be allocated. This tension is, of course, grounded in age-old questions about international law’s ability to constrain state behavior. Yet the highly politicized nature of migration law sharpens this perennial conflict, leading to interesting and unexpected outcomes. Continue reading "The Borders of Human Rights"

 
 

Into Litigation’s Black Hole: A Cosmic Solution

How many federal courts scholars can identify what is meant by the litigation “black hole?” If you know the answer to this question, chances are you teach mass tort litigation or worked on asbestos litigation thirty years ago. And if you want to know what became of that black hole, Judge Eduardo C. Robreno of the Eastern District of Pennsylvania offers some answers.

Asbestos litigation was a seminal mass tort litigation and its procedural history provides an interesting parable about dispute resolution modalities. The flood of asbestos litigation began in the late 1970s and for approximately twenty years the Judicial Panel on Multidistrict Litigation resisted creation of an asbestos MDL. After the Judicial Conference issued a report on the nationwide asbestos litigation crisis, the Panel relented and finally created asbestos MDL-875 in 1991, docketed in the Eastern District of Pennsylvania.

The famous “black hole” refers to the contention by attorneys that the creation of the MDL—and the transfer of their cases to the MDL court—would send their asbestos cases into a litigation black hole, and that their cases would disappear forever. In issuing its order, the MDL panel took pains to assure lawyers that the MDL would not do so. Continue reading "Into Litigation’s Black Hole: A Cosmic Solution"

 
 

Queering the History of Sex Discrimination

In my employment discrimination course, I use Diaz v. Pan American Airlines (5th Cir. 1971), overturning Pan Am’s ban on male flight attendants, to illustrate how airlines and other employers tried and failed to exploit Title VII’s bona fide occupational qualification (BFOQ) exception in the years after the Civil Rights Act’s enactment. Pan Am defended its female-only policy as necessary to satisfy the “psychological needs” of its mostly male passengers, who “overwhelmingly” preferred to be served by “young girls.” In Diaz, the court ruled that the “essence” of an airline’s business was not to titillate male travelers, nor to offer maternal comfort to anxious fliers, but rather to keep passengers safe from harm. Excluding men, therefore, could not be “reasonably necessary to the normal operation” of an airline.

Phil Tiemeyer’s Plane Queer reveals that Pan Am’s defense of the male steward ban was even more insidious than previously understood. The airline argued that male flight attendants performing traditionally female ministrations, such as tucking blankets around dozing passengers, would repulse their (assumedly) male, heterosexual, and homophobic customers. Tiemeyer argues persuasively that Diaz and the other early challenges to airlines’ sex BFOQs are properly seen as queer equality cases, belying conventional assumptions that gay employment rights advocacy merely piggybacked on, or at least postdated, movements for racial justice and women’s rights. Continue reading "Queering the History of Sex Discrimination"

 
 

Theorising Global Justice

Frank J. Garcia, Global Justice and International Economic Law: Three Takes, Cambridge University Press (2013).

In a letter to the semi-pagan Nectarius (Epistle 91, §4), Saint Augustine sets forth one of the most fundamental problems of political life: political philosophers who have sought and ‘indeed described’ justice in private discussion have utterly failed to secure justice for the earthly city. The problem could not be clearer: true justice is not an utter mystery to human beings. It can be made present to thought and speech. But even amongst those who have bothered to obtain a rational image of it, this justice is absent from their activities and their communities. Justice in the earthly community is only ever a relative and internal justice, an ‘ordered agreement of mind with mind’ (De Citivate Dei XIX.13) that is limited to ‘the establishment of a kind of compromise between human wills…’ (IV.4) Even the laws of the most civilised society of Augustine’s time (Rome) represented but the distorted form of justice one finds in a criminal organisation.

The subject of justice in the earthly civitas (i.e. the human world) is examined at length in Frank Garcia’s impressive book, under the modern title of ‘global justice.’ The scope of the book is determined by two factors: (1) it is concerned with the specific dimension of global justice which applies to international economic activity; (2) it analyses the subject according to ‘three takes’ which have dominated recent Western political thought (Rawlsian liberalism, communitarianism, and consent theory) (P. 3.) My focus here is upon the second of these delimiting factors. It is given the following explanation:

There are of course many more theories of justice within Western political theory, and a comprehensive approach to the ethical foundations of global justice would need to engage in a comparative study of justice in normative traditions both within and beyond the West.

Of interest in this passage is its juxtaposition of two critical ideas: on the one hand, the identification of global justice as being, in the last end, an ethical problem; and on the other hand, the belief that the resolution of the ethical problem would come about through a comparative (i.e. empirical) investigation of normative traditions. The underlying implication is (I believe) not that ethical questions can be dissolved by, or exposed as, empirical concerns, but that some form of comparative study represents the realistic limit of what can be achieved by way of progress in the face of so much entrenched division. If so, this reflects the more pessimistic implication of Augustine’s letter: justice in the worldly community is not genuine justice but is forever limited to a kind of compromise between human wills. Continue reading "Theorising Global Justice"

 
 

Internet Payment Blockades: SOPA and PIPA in Disguise? Or Worse?

Annemarie Bridy, Internet Payment Blockades, Fla. L. Rev (forthcoming), available at SSRN.

The law of intermediary liability in intellectual property reflects a constant struggle for balance. On the one hand, rights owners frustrated by the game of whack-a-mole have good reason to look for more efficient ways to stanch the flow of infringement. While this concern is not a new one, the global reach and decentralization of the Internet have exacerbated it. On the flipside, consumers, technology developers, and others fret about the impact of broad liability: it can impede speech, limit competition, and impose a drag on economic sectors with only a peripheral relationship to infringement. As the Supreme Court put it thirty years ago in the seminal Sony case, the law must seek a “balance between a [rights] holder’s legitimate demand for effective – not merely symbolic – protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce.”

For the most part, the battle of these competing interests has played out in litigation, legislation, and deals involving online intermediaries whose services are used to infringe. The Digital Millennium Copyright Act’s notice-and-takedown procedures, the peer-to-peer copyright battles, keyword advertising suits, and lawsuits against websites like eBay are giving shape to the relative rights and responsibilities of IP owners and intermediaries. Continue reading "Internet Payment Blockades: SOPA and PIPA in Disguise? Or Worse?"

 
 

Can the Supportive State be Non-intrusive?

Wendy A. Bach, The Hyperregulatory State: Women, Race, Poverty, and Support, 25 Yale J.L. & Feminism 317 (2014).

Two truths that feminists hold to be self-evident are: (1) that this society requires a more pro-active, supportive state that recognizes the fact of dependency and assumes some responsibility for the needs that dependency creates; and (2) that when the state intervenes in the lives of poor, minority women, it discriminates against and penalizes those most in need of its support. Advocates of each proposition generally also adhere to the other as if the two propositions were completely compatible: Those making the case for a supportive state adopt as a principal goal the reduction of society’s profound inequalities,1 while critics of the state’s discriminatory intrusions into the lives of the poor take for granted the necessity for state interventions to address dependency.2

Wendy Bach’s article advances both propositions sympathetically—so sympathetically that the reader initially might understand the article to be primarily a celebration of the convergences in feminist insight. But read on. The work is, above all else, a caution. The case for a supportive state is a powerful one, she argues; yet current institutional realities mean that state-sponsored programs typically make women more vulnerable, not less. This is not inevitable, she argues, but to avoid it, reformers need to pay more attention to the specificity of the mechanisms the state employs. Otherwise, Bach argues, calls for a more supportive state may yield measures making it easier for middle-class women to work and raise children, but they won’t dismantle the punitive mechanisms that so acutely affect poor women and minorities. (P. 329). Continue reading "Can the Supportive State be Non-intrusive?"

 
 

Interdependent Legalities

The first thing I liked about Kirsten Anker’s book was its title.1 The idea of a declaration of interdependence is extremely evocative, and multilayered. It foregrounds values of connection and interdependence as basic to legal relations, within and between cultures, and also between human societies and our ecologies and environments. At the same time, it constitutes an ironic reflection on non-Indigenous histories, with their insistence on independence. Assertions of independence have been vital to shaping the nation-state world we currently live in, and which forms the legal and philosophical backdrop to this book. Declarations of independence may still have a defensible role in a world which oppresses marginalized groups and fails sufficiently to promote the self-determination of colonized peoples. But interdependence goes further, and acknowledges interconnection between peoples and their worlds – it reasserts that there are relations of dependence between groups, and relations between their laws. It also, and this is the real depth of this particular book, shows how the very act of defining and understanding any law in this context brings into play multivocal exercises of recognition, translation, and negotiation.

Throughout the book, Anker emphasizes that she seriously regards all sides of a relation as ‘dependent’ on the others (as well as, to a lesser degree, ‘independent’). In the context of Anker’s study, which primarily concerns legal relations between Indigenous and non-Indigenous people in Australia, the ‘sides’ of the relation are primarily two. When the two sides come together to negotiate or determine their legal relations, each is dependent on the other. This is not to deny the existence of state dominance or, on the other hand, to say that there can be no self-determination or autonomy for Aboriginal people. Rather it conveys the way that ‘decisions and their consequences will always be taking shape in relation to other communities and governments, at different scales.’ (P. 194). In order for there to be any real encounter between different legalities, they each have to be open to the other, and in particular to the process of being reconstituted by the other. Anker argues this mutual dependence by reference to philosophical tradition. In particular she points out that approaches to recognition and translation will be extremely problematic if understood or practiced simply in terms of one (sovereign) side having all of the power to recognize the other, or being permitted to assume that their own conceptual tools are sufficient to render the other’s world intelligible. For recognition and translation to work and for justice to be a plausible goal, the interpretive and conceptual horizons of both sides must shift. Even more importantly, Anker also argues this case inductively from detailed readings of significant native title cases, and through an analysis of the nature of negotiated settlements. At their most positive, even within the decision-making framework of state law, these sources show people coming together in a jurisgenerative space, in which ‘law’ appears as a dialogue rather than being given from above. (P. 103). At the same time, the opportunities for state law to misrecognize and mistranslate Aboriginal law, because of doctrinal dogmatism, ideology, or other limitations, remain considerable. The detail provided by Anker to illustrate these points is extraordinary, and quite impossible to do justice to in a short review. Continue reading "Interdependent Legalities"

 
 

Decriminalization and Its Discontents

Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. ___ (forthcoming 2015), available at SSRN.

Have we reached a turning point in criminal justice? Political leaders, criminal justice actors and even the general public have come to agree that our criminal justice system is broken. It delivers a product that is long on punishment, but short on justice, mercy, efficiency, cost-effectiveness and rationality. Consequently, states are moving to shorten some drug sentences, to decrease overall imprisonment rates, and to legalize or decriminalize marijuana possession. We are even witnessing manifestations of leniency from the public: witness the California voters’ 2014 roll-back of that state’s notorious “three-strikes” law.

Clearly, we are at an inflection point. But is this a true turning point? Or are we witnessing another historical moment in which harsh and unequal criminal justice systems demonstrate the uncanny ability to achieve preservation through transformation in the face of widespread criticism? In her article Misdemeanor Decriminalization, Sasha Natapoff helps her readers to wrestle with this question. The answer may not be as encouraging as we might have hoped. Continue reading "Decriminalization and Its Discontents"

 
 

Typecastes: Big Data’s Social Stratifications

Recently, Scott Peppet, Dan Solove, and Paul Ohm appeared in a great Al Jazeera comic on big data and privacy, called “Terms of Service.” The comic covered the growth of data-driven companies from scrappy startups to the behemoths we know and fear today. It’s also a good introduction to the problem of discrimination by data and algorithm. For those who want to continue the conversation, Nathan Newman‘s article is an excellent guide to the issues.

Newman has already made several important interventions into the scholarly debate over the effects of big data. Marketing industry leaders have argued that data-driven marketing increases the accuracy of ad targeting. Critics have contended that the opacity and complexity of data flows makes it impossible for the average citizen to understand how they are being rated, ranked and judged. The White House Big Data Report from 2014 was a major validation for critics, compiling numerous problems in the big data economy and taking seriously threats on the horizon. Continue reading "Typecastes: Big Data’s Social Stratifications"

 
 

The Settler-in-Chief

Adam Zimmerman, Presidential Settlements, 163 U. Pa. L. Rev. __ (forthcoming 2015), available at SSRN.

In his famous, unfinished article The Forms and Limits of Adjudication, Lon Fuller posited that certain types of claims—he called them “polycentric” disputes— were incapable of resolution through adjudication. In these disputes the number of interested parties is so large and the potential ramifications of the dispute so vast that it is impossible for each person affected by the decision to participate in the decision-making process through proofs and reasoned arguments—participation which, Fuller argued, was the sine qua non of adjudication. According to Fuller, the binary nature of a second decision-making mechanism—voting—also made elections a poor means for resolving mass disputes, with their multifaceted nuances. Therefore, the only legitimate mechanisms to resolve polycentric disputes were negotiation or managerial direction. One type of dispute that Fuller held out as an exemplar of polycentrism was a labor dispute over wages in a centralized economy: the way in which different levels of increase in wages would have ripple effects across the economy made it unimaginable that a judge or a voter could determine the question of a proper wage.

Of course, Fuller’s claim is contestable, both theoretically and factually. In particular, the rise of complex litigation, which emerged as a significant legal phenomenon after Fuller drafted his article in 1957, has tested the assumption that large-scale disputes cannot be resolved through proofs and reasoned arguments. But the course of complex litigation over the past sixty years has also given Fuller’s thesis some support. Consider, for example, the aggregation techniques that courts in complex disputes have employed: class actions that limit participation rights in return for the promise of adequate representation and MDL proceedings whose bellwether trials are designed to channel most cases into settlement and whose settlement structures take their inspiration from administrative agencies and insurance companies. In each of these, the right of each affected individual to participate through proofs and arguments falls by the wayside. Likewise, some of the “best practices” for resolving aggregate litigation—for instance, providing separate representation for each interest group to prevent conflicts of interest within groups and using statistical sampling to ensure that issues of liability and damages are determined accurately on a macro scale—highlight the difficulty of guaranteeing the individual participation and the individualized assessment of claims that lie at the heart of Fuller’s adjudicatory paradigm.

Fuller’s paradigm casts a long shadow over complex litigation. In recent years courts have seemed especially reluctant to stray too far from the traditional understanding of adjudication that Fuller describes. Courts have declined to head down adventurous doctrinal paths that would facilitate the aggregation of large numbers of cases: think, for instance, of the many cases narrowly construing Federal Rule 23, Wal-Mart’s rejection of the use of trial by statistics, and the increasing judicial resistance to cy pres relief. Whatever the merits of these decisions (and some of them seem to me more defensible than others), convincing a present-day court to use its adjudicatory powers to resolve “polycentric” claims in a single, comprehensive lawsuit is an uphill climb. Yet even if courts are reluctant to adjudicate mass disputes, the disputes themselves continue to proliferate. Predictably, substitute mechanisms have stepped into the breach.

Adam Zimmerman has explored many non-judicial dispute-resolution mechanisms. His latest article turns to another one: presidential settlements, which are deals brokered by the White House that extinguish the legal rights of claimants in favor of an executive-branch compensation system, without judicial involvement or imprimatur. The BP oil spill settlement is perhaps the largest and most recent example. As Zimmerman recognizes, however, presidents have been hammering out similar deals since the earliest days of the Republic. In the past four decades alone, President Carter negotiated, and President Reagan implemented, the Algiers Accords, providing a compensation mechanism for claims arising from the Iranian Revolution; President Clinton engineered a settlement between Holocaust victims and banks that had confiscated Jewish bank accounts; and President George W. Bush brokered a deal between the government of Libya and the victims of the Lockerbie bombing. Over the years presidents have also intervened to resolve labor disputes—a role that calls to mind Fuller’s argument that such disputes are classically polycentric and therefore beyond the legitimate reach of adjudication. Continue reading "The Settler-in-Chief"

 
 

Privacy and the New Press

In The First Amendment Bubble, Professor Amy Gajda comprehensively examines privacy threats posed by digital media and “quasi-journalists” and demonstrates how their intrusive practices threaten existing press freedoms. The law Gajda addresses is mainly tort law and First Amendment law. Through a wide-ranging survey of reported cases, she documents trial court judges’ growing reluctance to interpret First Amendment precedent to protect journalists who are sued for invasions of privacy, intentional infliction of emotional distress, or other torts. She attributes this judicial reluctance to perceived and real changes within the media itself, including the rise of “quasi-journalists” unmoored by journalistic ethics or a sense of social responsibility, the growing use of invasive newsgathering technology, a tell-all culture enabled by social media, and competitive pressures to both sensationalize the news and present it to the public without benefit of editorial judgment.

Gajda warns that journalists have “pushed the envelope” of First Amendment freedoms so far that the First Amendment bubble may be about to burst. She documents the judicial backlash against journalists’ broad claims of constitutional protection by presenting hundreds of examples gleaned (mostly) from trial courts around the country. She argues convincingly that a legal strategy of pushing every First Amendment argument to its outer limits may backfire on journalists and news organizations, since courts increasingly lump legacy media with internet scandal mongers such as TheDirty.com, and become skeptical of media claims that they provide the public with newsworthy information. Continue reading "Privacy and the New Press"

 
 

Human Rights for Corporate Persons?

Turkuler Isiksel, The Rights of Man and the Rights of the Man-Made: Corporations and Human Rights (January 7, 2015), available at SSRN.

The Citizens United and Hobby Lobby decisions have drawn heavy fire from critics of the Supreme Court’s ascription of constitutional and statutory rights to corporations. According to Professor Turkuler Isiksel, a political scientist at Columbia, things may be even worse than those critics appreciate. In the paper referenced above, Isiksel illuminates and offers a trenchant critique of disturbing developments in the transnational arena that may be unknown to specialists in U.S. corporate law. Multinational corporations are claiming that, as legal persons, they are entitled to the rights of human persons under international human rights law.

These assertions seek to shield corporations from domestic regulations imposed by host countries in which they do business. Isiksel’s primary focus is the international investment regime, consisting of a large web of bilateral investment treaties and regional free trade agreements. These are designed to promote foreign investment by guaranteeing protection from expropriation and excessively costly regulations for corporations that have invested in countries that are parties to these agreements. When disputes arise between a corporation and the host state, they are typically resolved through arbitration. Arbitral tribunals are supposed to apply the terms of the particular investment agreement but “they increasingly also make use of human rights law to assess state behavior toward foreign investors.” (P. 38.) Isiksel notes that “[i]nternational human rights law is congenial to firms looking to challenge state measures because it offers a framework for contesting the treatment of private actors by states.” (P. 40.) Continue reading "Human Rights for Corporate Persons?"

 
 

New Wine, Old Bottles, and a Do-Nothing Congress

Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. Pa. L. Rev. 1 (2014).

The Rivers and Harbors Act of 1899 was adopted to protect against hazards to and interference with navigation. It prohibited “creation of any obstruction to the navigable capacity of any of the waters of the United States” or altering or filling navigable waters (§10) and also made it unlawful “to throw, discharge, or deposit . . . any refuse matter” into navigable waters “whereby navigation shall or may be impeded or obstructed,” although the Corps of Engineers could permit such a discharge if “anchorage and navigation will not be injured thereby” (§13). For two-thirds of a century, those provisions operated as one would expect. Then came the modern environmental movement, and in short order the courts and the executive branch turned these provisions about obstruction to navigation into a water-pollution control regime. As President Nixon drily put it in issuing an executive order that created a sweeping new pollution permit program under §13, the Act’s “potential for water pollution control has only recently been recognized.” Richard Nixon, Statement on Signing Executive Order Establishing a Water Quality Enforcement Program (Dec. 23, 1970).

This striking repurposing of a 19th century statute to solve 20th century problems is not unique. EPA’s current reliance on the Clean Air Act to regulate greenhouse gases can be seen as another example, this time using a 20th century statute to solve a 21st century problem (though the gap between the original conception of the statute and its repurposing is much less dramatic in this later instance). Jody Freeman and David Spence have now provided a valuable, and quite sympathetic, analysis of the technique of using “old statutes” to address “new problems.” Continue reading "New Wine, Old Bottles, and a Do-Nothing Congress"

 
 

The Constitution at Work: Everything Old is New Again

Sophia Z. Lee’s new book, The Workplace Constitution: From the New Deal to the New Right, traces a fifty-year history of the tumultuous battle over whether and when the Constitution should apply to employees working at private sector jobs. This is in part a story about the Supreme Court, but Lee also reveals a fascinating account of rapidly shifting alliances and tensions between and among civil rights groups, unions, employers, the right-to-work movement, and administrative agencies. With all of these players, Lee’s book could have easily gotten bogged down in details. Instead, it beautifully brings to life lawyers’ and activists’ deliberations over whether their interests would be well-served by the application of constitutional law in private workplaces, against the backdrop of changing constitutional jurisprudence and shifting legislative and regulatory priorities.

Of course, the end of the story will be familiar to many readers—after some hopeful starts for liberal and conservative supporters of the Workplace Constitution during the 1960s and early 1970s, it nearly disappeared after the Burger and Rehnquist Courts issued a series of narrow state action decisions. As Lee explains, this development was ultimately not unwelcome to many civil rights groups—this about-face was linked to the Court’s growing tendency to strike down governmental affirmative action plans on constitutional grounds, which meant voluntary affirmative action plans at private workplaces would also be threatened if the constitution applied there. But along the way, Lee opens a window on what might have been, describing administrative agencies’ creative uses of constitutional law to promote diversity within the entities they regulated. The FCC and the NLRB get the most airtime here, and the FCC’s efforts in particular were almost breathtaking: spurred on by activists, that agency concluded that it had the constitutional authority—or even the constitutional duty—to condition dozens of station’s licenses on the adoption of affirmative action programs, including educational programs designed to create a pipeline of qualified applicants. These programs yielded documented results; if they had been continued, today’s workforce diversity might be much improved, especially within highly regulated industries. Continue reading "The Constitution at Work: Everything Old is New Again"

 
 

The Impact of Federal Law on a Decedent’s Digital Assets

Naomi R. Cahn, Probate Law Meets the Digital Age, 67 Vand. L. Rev. 1697 (2014), available at SSRN.

Recently, estate planners and scholars have begun to grapple with the problem of transferring digital assets at death. In Probate Law Meets the Digital Age, Professor Naomi Cahn adds an interesting new dimension to this relatively new issue. She focuses on the effect of the Stored Communications Act (“SCA”) on estate administration. Although the SCA does not affect a fiduciary’s ability to distribute assets once they are discovered, it affects the fiduciary’s ability to examine on-line accounts to discover those assets.

The SCA, which was enacted nearly two decades before the development of Facebook, was passed in response to privacy concerns related to the internet. It was not aimed at transfers at death, but it certainly can impact probate administration in an era when most people have some sort of on-line presence. This has created a great deal of uncertainty for internet service providers as well as for fiduciaries, including personal representatives, agents, conservators, and trustees. As Professor Cahn points out in her piece, this uncertainty currently impacts anyone who dies with an e-mail account. Continue reading "The Impact of Federal Law on a Decedent’s Digital Assets"

 
 

In Praise of Accountability

Jeremy Waldron, Accountability: Fundamental to Democracy (April 2014), available at SSRN.

Accountability is a term that gets bandied about a great deal these days, sometimes as a criticism of regulatory government (agencies are not accountable to the people), sometimes as a justification for federalism (when government is closer to the people it is more accountable). It is also a term that has been widely disparaged by scholars as vague, fanciful and under-theorized. In Accountability: Fundamental to Democracy, Jeremy Waldron remedies this situation. By carefully parsing various meanings of the term, focusing on the essential meaning, explaining its importance, and responding to the concerns it raises, Waldron has convincingly demonstrated the way that accountability is, as his title asserts, fundamental to democracy.

To focus the discussion, Waldron distinguishes between three different ways in which the term “accountability” is used in political discourse. The first is forensic accountability, where the actions of a person with some sort of power or authority are assessed by a supervisory entity according to an established norm. The second is consumer accountability, where the power-holder acknowledges the importance of considering the views of the people whom its actions affect. Third is agent accountability, where the power-holder has been appointed by a principal, must report its actions to the principal, and can be sanctioned or dismissed if those actions are deemed unacceptable. Judicial review, where a court determines whether a statute or executive action violates the standards established by the Constitution, is an example of forensic accountability. Calls for “client-centered” administration, which figured prominently in Al Gore’s “Reinventing Government” initiative when he was Vice President, are based on consumer accountability. These may be important from a juridical or management perspective, Waldron argues, but the third type—agency accountability—is the one that is fundamental to democracy. Continue reading "In Praise of Accountability"

 
 

Not Business as Usual for In-House Counsel

One of the most interesting things written about professional responsibility in 2014 is not a book or a law review article, but the report of an internal investigation. Anton Valukas, a former United States Attorney, now chair of the Chicago law firm Jenner & Block, was retained by the board of directors of General Motors to investigate the company’s inadequate response to reports of a serious defect in some of its cars. As extensively reported, a faulty ignition switch used in several G.M. cars, including the Chevrolet Cobalt and Saturn Ion, would sometimes fail in a way that both shut off the engine and disabled the car’s airbags.1 The switch departed from its intended design in a crucial respect – the torque was less than specified, so that if a driver inadvertently bumped into it, or if the keys hanging from the ignition switch were too heavy, the electrical system might change from “run” to “accessory” mode. As early as 2005, G.M. started to receive reports of crashes in which the car’s airbags failed to deploy. At first they did not suspect a problem, as there were other factors that might have caused the airbags to fail to deploy. It was also hard to track down the problem because the engineer who had approved the original, faulty switch also approved a change to the switch design that solved the problem, but did so in a way that obscured the original problem.2 But by about 2007, it was becoming clear that there might be a defect in the electrical system of certain car lines. Finally, in early 2014, G.M. publicly disclosed the defect, began recalling as many as 2.6 cars, and established a compensation fund for the victims of switch-related accidents.

What happened between 2007 and 2014? The long and short of it is, evidence of a possible defect was fed into the machinery of a cumbersome, bureaucratic process that churned on and on without moving toward a resolution. G.M. did not set about to cover up the problem. It has a byzantine structure of review programs, tracking systems, and cross-disciplinary committees that exists precisely to detect and rectify issues like the ignition switch defect.3 Customer satisfaction issues, which comes to the attention of G.M. personnel involved in marketing, are supposed to get directed to engineers for improvement, coded for whether the problems are a mere annoyance or a possible safety concern.4 Managers from divisions of products, systems, and safety engineering periodically met with business managers to work on solutions to safety problems and overcome roadblocks.5 Additional committees dealt with problems manifesting themselves in the field, and had contact with representatives from engineering, marketing, business, and legal teams.6 Reading the description of these procedures and protocols, one comes away with the impression of a company that takes its obligations to customers quite seriously, but in reality the redundancy and ambiguity inherent in the structure sapped the energy from the company’s response. With multiple committees dealing with various aspects of the same problem, no person or centralized team had responsibility for making sure something got done. CEO Mary Barra memorably testified before Congress about the “G.M. nod,” when everyone in the room agrees with a proposed plan of action, but no one does anything to make it happen, and the “G.M. salute,” which consists of crossed arms with fingers pointing toward others, to whom responsibility is being punted.7 The human cost of this dithering can be measured in the injuries and deaths that would have been prevented if prompt corrective action had been taken. Continue reading "Not Business as Usual for In-House Counsel"

 
 

Big Data and Deterrence

Zenon Zabinski and Bernard Black, The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform, available at SSRN.

In a provocative new piece, Zenon Zabinski and Bernard Black address one of the most stubborn questions within all of tort law: Does tort law deter? The idea of deterrence is so deeply embedded within tort law that it seems absurd that the answer isn’t clear cut. But alas, a full four decades after the law and economics movement propelled tort’s deterrent function onto center stage, the answer to the question has, so far, remained maddeningly inconclusive.

This is not for lack of effort or investigation. Indeed, over the past few decades, scholars have tried to assess tort’s deterrent function in a wide variety of contexts, using any number of methodologies, from interviews with organizational insiders, to targeted case studies, to experimental vignettes, to surveys to assess the behavior and motivations of everyone from physicians and corporate managers to in-house counsel and CEOs.

In addition, empirically-minded scholars have contributed to this sprawling literature, most notably by exploiting natural experiments. Thus, they’ve amassed data to evaluate external shocks to liability risk in “treated” environments to see whether accident rates go up when liability risk (for whatever reason) goes down. Continue reading "Big Data and Deterrence"

 
 

So Who, at the End of the Day, Owns Google (or Apple, or Microsoft, or Pfizer…)?

Chris William Sanchirico, As American as Apple Inc.: International Tax and Ownership Nationality, 68 Tax. L. Rev. __ (forthcoming), available at SSRN.

As I was sitting down to draft this review of Chris Sanchirico’s paper, I ran a simple search on Google News: “‘U.S. Companies’ and Tax”. Here are some of things I learned skimming through search results returned by major news outlets: “U.S. Companies” now stash over $2 trillion overseas in order to avoid taxes (NBCNews, Nov. 12, 2014); “U.S. Companies” use mergers to shift their legal address to low-tax jurisdictions in a strategy known as “inversion” in order to reduce their U.S. tax bill (Bloomberg, Oct. 28, 2014); and, one of Congress’ top priorities for 2015 is a tax reform aimed at “helping” “U.S. Companies” avoid the U.S.’s “highest-in-the-world corporate tax rates”, in order to grow the economy (CNBC, Nov. 17, 2014).

Clearly, the taxation of “U.S. Companies” plays a major role in public discourse. Roughly speaking, the two sides of the debate can be outlined as follows: U.S. multinational corporations either pay too much (because our tax system is not competitive compared with the rest of the world), or too little (because our tax system is riddled with loopholes). We need to reform our tax system so “U.S. Companies” are at par with their foreign competitors; or, we need to tighten our tax rules so as to make sure that “U.S. Companies” share the burden. While political views differ, the terms of the debate seem clear. Whichever side of the debate one takes, something must be done about how we tax “U.S. companies.”

Sanchirico, however, questions the core terms of the debate: “When we speak of ‘U.S. multinationals,’ what do we mean by ‘U.S.’? More specifically, to what extent are these ‘U.S.’ companies owned by non-U.S. investors?” Sanchirico’s ultimate answer is quite a shocker: we have no idea what we are talking about when we speak of “U.S. Companies,” at least in terms of who owns these companies. Continue reading "So Who, at the End of the Day, Owns Google (or Apple, or Microsoft, or Pfizer…)?"

 
 

The Law and Economics of the Civil Rights Revolution

Quantitative scholars too often seem intent on sucking the complexities and nuances out of history. Sometimes, however, throwing numbers at history can have the reverse effect. Historians get themselves into ruts, embracing assumptions and approaches that ultimately shorten the horizons of analysis. A certain predictability develops in the scholarship. New contributions add more bricks to a building whose dimensions have already been charted. What may be needed is a jolt to these assumptions and approaches, a compelling case for reconceiving the central issues. At its best quantitative analysis delves beneath the surface of the familiar, revealing unfamiliar patterns or connections. And in the unfamiliar may be the complexities, contradictions, and puzzles that suggest productive new directions for scholars of all methodological proclivities to explore.

While not a discipline-shaking work of scholarship, Gavin Wright’s Sharing the Prize: The Economics of the Civil Rights Revolution in the American South does use quantitative analysis to make a persuasive case for reconsidering several tenets that have become accepted wisdom among scholars of the civil rights movement. Wright, an economic historian, synthesizes an array of quantitative research—some his own, some the work of others—in support of a claim that is both striking and important: the landmark federal civil rights policies of the 1960s marked not just a revolution in legal rights for African Americans, but also a significant advancement in their economic wellbeing. Continue reading "The Law and Economics of the Civil Rights Revolution"

 
 

Making Cost Sharing Fairer and More Effective

Christopher T. Robertson, Scaling Cost-Sharing to Wages: How Employers Can Reduce Health Spending and Provide Greater Economic Security, 14 Yale J. Health Pol’y L. & Ethics 239 (2014), available at SSRN.

While many popular policies that require individuals to share the costs of their health care can be counter-productive, as when high deductible health insurance plans discourage people from seeking necessary care, Christopher Robertson’s “scaled cost-sharing” proposal offers considerable promise.

Robertson observes that employers typically use a one-size-fits-all approach to the cost-sharing features of their health insurance plans. Whether workers earn $40,000 or $400,000, they face the same deductibles, copayments, and other cost-sharing features that kick in when individuals seek care. In particular, these cost-sharing requirements come with an annual cap on out-of-pocket spending that is the same for all employees. Plans that cap out-of-pocket spending at $5,000 apply that cap to all workers, and plans with $10,000 caps also apply their cap to all workers. The Affordable Care Act (ACA) reinforces the practice of standard caps with its maximum amounts for in-network, out-of-pocket spending. Continue reading "Making Cost Sharing Fairer and More Effective"

 
 

Judicial Competition for Case Filings in Civil Litigation

Daniel Klerman & Greg Reilly, Forum Selling, USC Center for Law and Social Science Research Papers Series No. CLASS14-35, available at SSRN.

Scholars have extensively explored how outcomes in civil litigation can hinge on an adjudicator’s identity, institutional affiliation, and location. Judges bring varying perspectives and experiences to the bench that may color their assessment of factual contentions and legal arguments. Jurisdictions have idiosyncratic rules and customs. Geography often imposes burdensome participation costs, unique local norms, and distinct jury pools. Different courts therefore might reach inconsistent conclusions in otherwise identical cases. Lawyers pay close attention to these differences and try to exploit them using tactics that are often derisively described as “forum shopping.”

Although lawyers are active shoppers, observers are loath to think of judges as active sellers. We expect zealous lawyers in an adversarial system to exploit available advantages. But we take comfort in conceiving of those advantages as arising from inevitable variations among courts rather than through deliberate competition among judges. From this perspective, judges should be agnostic about where cases are filed (assuming filings comply with applicable laws), even as they operate within a system in which forum choice matters to litigants. If judges are agnostic, then the term “forum shopping” would be misleading given the absence of a market. Lawyers would be shopping for courts only in the sense that birds shop for trees in which to build nests. Trees might benefit from hosting birds and may be well-adapted to attract them, but a tree’s allure is not a product of conscious choices amenable to criticism and reconsideration.

But if lawyers react to incentives that judges deliberately provide, then the shopping metaphor would be more potent and the judicial competition potentially more unseemly. The existence of judicial sellers enticing party buyers would raise at least two difficult questions. First, what is the normative justification for allowing a judge’s desire to increase local filings to influence judicial decisionmaking? Second, what corrective measures are necessary to prevent or mitigate abuse? These are among the many questions that Daniel Klerman and Greg Reilly explore in their thoughtful new manuscript Forum Selling. Continue reading "Judicial Competition for Case Filings in Civil Litigation"

 
 

Getting Theoretical About Judge Posner’s Legal Pragmatism (Thanks to John Dewey) and the Implications for Constitutional Interpretation

Michael Sullivan & Daniel J. Solove, Radical Pragmatism, in The Cambridge Companion to Pragmatism 324 (Alan Malachowski ed., 2013), available at SSRN.

Constitutional interpretation debates generally do not focus on legal pragmatism. They often match originalism against living constitutionalism. Several U.S. Supreme Court justices, such as Justice Scalia and Justice Thomas, have openly embraced originalism. Others, such as Justice Sonia Sotomayor, see the Constitution as an evolving document, sharing views similar to former Justice William Brennan (and perhaps to Ronald Dworkin’s moralism). Alternatively, several scholars, such as Thayer and Vermeule, argue that only “clearly” unconstitutional laws should be invalidated. In addition, “popular constitutionalists” such as Larry Kramer urge the Supreme Court to be restrained and allow constitutional interpretation and change, if any, to arise from the grass roots. But pragmatism is another important method of constitutional interpretation. Justice Stephen Breyer is the Court’s most prominent pragmatist. Pragmatism, however, is often criticized as an empty anti-theory.

Yet, Professors Michael Sullivan and Daniel Solove have provided a great service by authoring an essay which shows that judicial pragmatism is not theoretically rudderless—it has normative components. Sullivan also authored a valuable book about legal pragmatism. Though their essay addresses questions of legal philosophy, it has enormous significance for constitutional law as will be shown. Indeed, pragmatism may better describe the reality of the U.S. Supreme Court’s constitutional interpretive approach than the sophisticated theories mentioned above, as the Court’s hardest cases are often decided by policy and practical considerations. These considerations trump because the tough cases usually involve an ambiguous text and history, as well as conflicting judicial precedents. Sullivan and Solove accomplish their task by relying on the philosophical pragmatism of John Dewey, and other arguments, to question various components of prominent Judge Richard Posner’s legal pragmatism. They critique Judge Posner’s supposed value neutral consequentialism, his view of the democratic process, his conception of philosophizing, and what they see as Posner’s status quo conservatism on many issues. Sullivan and Solove advocate a more critical approach towards the status quo’s views of constitutional principles such as equality, liberty, justice, and the democracy that results. In short, Sullivan and Solove embrace a thicker notion of the good and of democracy than Judge Posner. Continue reading "Getting Theoretical About Judge Posner’s Legal Pragmatism (Thanks to John Dewey) and the Implications for Constitutional Interpretation"

 
 

Surveying the Field: The Role of Surveys in Trademark Litigation

Shari Seidman Diamond & David J. Franklyn, Trademark Surveys: An Undulating Path, 92 Tex. L. Rev. 2029 (2014).

Trademark surveys have traditionally been seen as a core element of any trademark infringement or dilution dispute. How else would we discover, the theory goes, whether the typical consumer is confused about the source of a particular product, believes the prestige of a famous mark to have been diluted, or considers a once valid mark to have become generic?

Recent empirical work, focusing on published judicial opinions, has debated whether surveys have indeed played as significant a role as some have asserted or whether they are generally disregarded by courts, perhaps in favor of judges’ own intuitions. In a recent symposium contribution published in the Texas Law Review, Shari Seidman Diamond and David J. Franklyn help to expand the field. Because published opinions tell only part of the story, Profs. Diamond and Franklyn surveyed trademark practitioners in an attempt to discover how surveys are used in early stages of legal disputes. The results provide some useful food for thought both for trademark practitioners and for empirical legal scholars. Continue reading "Surveying the Field: The Role of Surveys in Trademark Litigation"

 
 

How to Use Economics

Ha-Joon Chang, Economics: The User’s Guide, Pelican Books (2014).

The Cambridge economist Ha-Joon Chang has contributed to a new series of Pelican Introductions a user’s guide to economics, with the novel objective of creating a class of “active economic citizens.” (PP. 457, 460.) His objective opposes the prevailing attitude that economics is a science that must be left to the experts. Throughout his book he seeks to debunk the presumed scientific status of economics. This then provides the platform for his mission statement: “If there is no one right answer in economics, then we cannot leave it to the experts alone. This means that every responsible citizen needs to learn some economics.” (P. 5.) Without wishing to challenge Chang’s grand ambition for the general citizenry, my concern here is to consider the book from the perspective of a subset of users of economics, lawyers and legal theorists. Incidentally, I shall also refer to a more specialist subset, economists themselves.

The book takes the form of a narrative encyclopaedia, readable but densely informative. One of Chang’s motivating concerns is that economic discussion should be grounded in hard facts, and these are plentifully provided—frequently upsetting cherished orthodoxies that have assumed an almost intuitive appeal. Notably, the facts are brought to bear against the belief that modern economic prosperity has depended upon free trade. Chang convincingly demonstrates that nothing could be further from the truth. (PP. 49, 60-61, 64-65, 71, 82, 94, 400, 402, 408-10, 430-31.) Yet the facts, for Chang, do not lead to an empirical standing for the discipline of economics. It is ineluctably swayed by political and moral considerations. (PP. 112, 164, 176, 438, 451-52.) The market itself is constrained or permitted in accordance with these factors. (PP. 312, 387, 393-96, 437, 452.) Continue reading "How to Use Economics"

 
 

The Limited Vision of Neoliberal Family Law

Anne Alstott, Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, 77 Law & Contemp. Probs. 25 (2015), available at SSRN.

The problem of economic inequality has become a staple of news, social media, and public commentary particularly since the aftermath of 2008 financial crisis. The growing gap between the one percent and the rest provided an issue around which public protests such as the Occupy movement could be organized. And while addressing the many effects of inequality is complicated in its particulars, the need for redistribution as a central legal and policy value has been evident to critical scholars. Redistribution in the form of better social safety nets, a more progressive taxation scheme, and the closing of loopholes all have become more commonplace policy prescriptions, although legislation on these issues has been slow to materialize. Family law scholars and activists have also suggested that reforming policies to ensure more support to families, such as paid family leave and assistance with child care, would also have beneficial effects for working parents and the country’s economic bottom line.1 Even as the United States lags behind all other industrial nations and many developing ones in providing these supports, legislating changes aimed at providing resources that “make family life possible” has been remarkably difficult. The question that lingers is why?

Anne Alstott’s essay, Neoliberalism in in U.S. Family Law, offers an answer. Alstott argues that neoliberalism, which she defines broadly as a commitment to free markets and laissez-faire economics coupled with a commitment to negative liberty and a minimal state, makes it nearly impossible to claim any positive rights and distribution of resources from the government. She explores the pervasiveness of neoliberalism in three areas of family law –federal constitutional law, state family law, and federal and state welfare law — deftly drawing connections among these discrete doctrinal fields to advance her central argument: Continue reading "The Limited Vision of Neoliberal Family Law"

 
 

A Queer Story of Same Sex Marriage

Michael Boucai, Glorious Precedents: When Gay Marriage Was Radical, 12 Yale J.L. & Human. 101 (2015).

Michael Boucai’s new article, Glorious Precedents: When Gay Marriage was Radical, explores same-sex marriage in an era when “gay liberation” rather than “gay rights” described the aspirations of a movement aimed at revolutionizing American life. Through detailed archival and interview based research, Boucai offers a delightful recounting of the first three cases to produce reported judicial opinions denying gay marriage in the United States: Baker v Nelson, Jones v Hallahan, and Singer v Hara (all of which were decided in the early 1970s). His unfolding of marriage litigation in the post-Stonewall years captures the historical texture of these initiatives and the individuals that commenced them, but more importantly it reveals an account of the pursuit of gay marriage and its radical potential that differs significantly from the same sex marriage movement in its contemporary form.

According to Boucai, despite criticisms of the same sex marriage movement as assimilating for sexual minorities and reifying of problematic social institutions, these first cases were much more about gay liberation generally than gay marriage specifically. His documentation of the stated ambitions of the three couples, the legal arguments advanced by their lawyers, and details of the sexual and domestic lifestyles and the activist activities engaged in by many of the litigants persuasively disrupts the dominant account of early marriage litigation as out of step with the radical spirit of gay liberation at the time. Interestingly, Boucai’s account re-politicizes the litigant couples – as couples – by, in part, desexualizing them. For two of the couples, theirs was neither a story of romantic love, nor even a story of notable sexual attraction. Rather, it was coupledom based on political aspirations, friendship, and shared worldviews. For them the litigation – which everyone accepted “stood no chance of winning” – was rooted not in a desire to marry, nor a desire for state sanction and recognition of the value of their love and affinity for one another, but in efforts to challenge the gendered oppression perpetuated by the institution of marriage and to perform their same sex relationships in public and confrontational ways. Continue reading "A Queer Story of Same Sex Marriage"

 
 

Finding Old Puzzles in New Places

Adam Hosein, Are Justified Aggressors a Threat to the Rights Theory of Self-Defense? In How We Fight (Helen Frowe & Gerald Lang eds., 2014).

At an informal philosophy workshop on self-defense I attended, the participants noted that their theorizing is relevant to everything from war to torts to preventive detention, but, they reflected with surprise, their work is less important to the criminal law of self-defense. The reason for this is somewhat simple—because the law adopts bright line rules and relies on the defender’s reasonable beliefs, many of the nuances articulated by philosophers are lost.

Adam Hosein’s book chapter is likewise not primarily a contribution to criminal law’s conception of self-defense, but it is a contribution to criminal law’s understanding of necessity. In the guise of questions about the applicability of self-defense to just war theory, Hosein’s piece ultimately has bearing on the criminal law puzzle of lesser versus least evil. Continue reading "Finding Old Puzzles in New Places"

 
 

Spanking the Money

Annemarie Bridy, Internet Payment Blockades, 67 Fla. L. Rev.__ (forthcoming 2015), available at SSRN.

A popular culture aphorism which is useful for teaching or comprehending intellectual property laws is “follow the money.” Often a law or a court decision only makes sense when its financial implications are contextualized. In this interesting, clear and engagingly well-written article, Professor Annemarie Bridy of the University of Idaho College of Law looks at how and why monetary transactions can be stopped cold in cyberspace by financial institutions that initially appear to be acting against their own business interests, but are actually submitting to unseen authority of questionable legitimacy. It is a story of commoditized sex, online sales of illegal drugs, and copyrighted rock and roll.

At the outset, Bridy positions her account of Internet payment blockades in the context of scholarship about powerful corporate actors doing the government’s bidding as the result of behind-the-scenes pressure. She credits Ronald Mann and Seth Belzley with important observations about “how concentration and high barriers to entry in the market for payment processing make payment intermediaries a ‘highly visible ‘choke point’ for regulatory intervention.’” (P. 4, citing to Ronald Mann and Seth Belzley, The Promise of Intermediary Liability.) She further notes in her introduction that: “Public-private regulatory cooperation of this sort goes by many names in the First Amendment literature, including proxy censorship soft censorship, and new school speech regulation,” citing to relevant works by Seth Kreimer (Seth F. Kreimer, Censorship by Proxy), Derek Bambauer (Derek E. Bambauer, Orwell’s Armchair), and Jack Balkin. (P. 5.) Continue reading "Spanking the Money"

 
 

Expanding Our Understanding of Narrowing Precedent

Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861 (2014).

Richard Re’s recent essay, Narrowing Precedent in the Supreme Court, identifies and examines the judicial technique of narrowing precedent as a practice that is meaningfully distinct from other ways of dealing with precedent, such as distinguishing, following, and overruling. The essay is gracefully written, carefully argued, and generative of insights and additional arguments.

In Re’s taxonomy of how courts use precedent, narrowing means “not applying a precedent when it is best read to apply.” Thus understood, narrowing contrasts both with following precedent (“applying a precedent when it is best read to apply”) and also with distinguishing precedent (“not applying a precedent where it is best read not to apply”). According to Re, narrowing is also distinct from overruling. Unlike the overruled precedent, the narrowed precedent remains available for future application, though within a narrower compass. Continue reading "Expanding Our Understanding of Narrowing Precedent"

 
 

Governance by the Sword

Etiquette guides suggest that one has a year from the wedding to send a gift. I just read Larry Cunningham’s elegant article published precisely a year ago. So I’m on time to comment.

This piece addresses the explosion in the federal government’s use of deferred prosecution agreements (DPAs) in combatting corporate crime, a phenomenon that has increasingly become the subject of debate, at least in part because of the extraordinary fines that typically constitute a part of these deals. The corporate (or, as Larry corrects the record, partnership) death of Arthur Andersen, and enforcement in the pharmaceuticals industry (where conviction can lead to exclusion from federal health care programs to the detriment of patients) have made prosecutors sensitive to the collateral damage they can cause by indicting and trying (or obtaining guilty pleas from) corporations suspected of misconduct. Much of the literature focuses on the potential abuses inherent in the use of DPAs, which have a fitful history of prescribed guidelines and standards, and which present significant potential for prosecutorial abuse due to the one-sided nature of the bargain. (Among the abuses have been mandated—sorry, bargained-for—waivers on behalf of employees of work product and attorney-client privileges.) Further concern has been their secrecy, precluding interested corporations from tailoring compliance to address prosecutor’s concerns. While commentators see the utility of these agreements in avoiding litigation costs and achieving some measure of deterrence (in addition to avoiding collateral damage), much of the analysis has been negative.

Larry has taken a practical and sensible approach to the problem. DPAs can be useful, he tells us, but only if prosecutors approach the negotiation and structuring of an agreement as a governance problem. Ever since the 1996 Delaware Caremark decision, Delaware law at least formally has required that its corporations structure governance in a manner that discourages unlawful conduct and that makes it detectable when it occurs. Sarbanes-Oxley supplemented this approach with its own regulations. And who better to understand the governance of any particular corporation than its own board and executives? Yet, as Larry shows us, principally through his examination of the travails of AIG during the middle of the first decade of this century, prosecutors can be less than thoughtful about the appropriate, compliance-ensuring governance regime for any particular corporation. He rather convincingly demonstrates that AIG’s role in the financial crisis may well have been a direct consequence of the standardized “best practices” corporate governance regime imposed under Arthur Levitt’s supervision. (I point out that his knowledge of AIG is as a result of a book he co-authored with Hank Greenberg, who has a dog in this particular hunt, but Larry’s careful and scholarly approach give me confidence in the veracity of his reporting.) Continue reading "Governance by the Sword"

 
 

Privileged Delegations

Mila Sohoni, The Power to Privilege, 163 U. Pa. L. Rev. (forthcoming, 2015), available at SSRN.

When Associate Justice Ruth Bader Ginsburg visited Berkeley Law in 2013, she expressed surprise when students in my Civil Procedure class advocated the passage of the Open Access to Courts Act (which would have imposed the Conley “no set of facts” standard on Rule 12(b)(6) motions), even though she had dissented in Twombly and Iqbal. She asked: “You want Congress to change the Rules of Civil Procedure?” She would, I think, agree with Professor Mila Sohoni’s skepticism of allowing executive agencies to change the Rules of Evidence. Both laud the rulemaking process through the Judicial Conference instead.

Sohoni’s forthcoming article, The Power to Privilege, is a rare and insightful article that examines the intersection of the rules of litigation and the administrative state. The article takes a seemingly obscure and ignored provision of the Patient Protection and Affordable Care Act (ACA)—authorizing the Secretary of Labor to issue regulations that “provide[] an evidentiary privilege for, and provide[] for the confidentiality of communications between or among” a plethora of federal and state officials and organizations—and persuasively demonstrates the likely costs of such a delegation. Continue reading "Privileged Delegations"

 
 

Another Set Of Eyes: A New-Old Proposal To Combat Wage Theft

Matthew W. Finkin, From Weight Checking to Wage Checking: Arming Workers to Combat Wage Theft, Ind. L.J. (forthcoming), available at SSRN.

Matthew Finkin’s article, From Weight Checking to Wage Checking: Arming Workers to Combat Wage Theft, reaches back to the late nineteenth and early twentieth centuries for a solution to the very current problem of wage theft for low-wage workers. Finkin proposes a modern-day version of the “checkweighman” laws that enabled coal miners to select an independent checker to verify their wages.

Finkin begins by defining “wage theft” as a set of employer practices “that result in employees taking home less than they are legally entitled to under federal and state law.” Employers may pay sub-minimum wages, refuse to pay for “off the clock” time, fail to pay overtime at all or at the correct rate, steal tips, or fail to pay any wages whatsoever. Finkin summarizes the current research on wage theft, including now-DOL Wage and Hour Administrator David Weil’s valuable work on federal wage and hour violations and Annette Bernhardt, Trey Spiller, and Diana Polson’s excellent study of employment law violations experienced by low-wage, front-line workers in Chicago, New York, and Los Angeles. Drawing on this and other scholarship, Finkin concludes that wage theft is rampant, checked neither by government oversight nor by workers, who have too much to lose to take on the costly, risky proposition of suing their employers. Finkin thus characterizes wage theft as both feasible and attractive to employers; stealing wages from the workers who can least afford it has become—and likely always was—a good business proposition. Continue reading "Another Set Of Eyes: A New-Old Proposal To Combat Wage Theft"

 
 

Erasing the Lines Between Contracts, Gifts, and Wills

Adam J. Hirsch, Formalizing Gratuitous and Contractual Transfers: A Situational Theory, 91 Wash. U.L. Rev. 797 (2014).

Imagine that I asked your opinion about a dispute concerning the purchase of a new car; or whether I was entitled to a necklace my friend promised to give me; or about the devise of land by my father. You would likely analyze each transaction against the rules of contracts, gifts, and estates and trusts, respectively. Was there a signed contract for the purchase of the car? Was the necklace delivered? How many witnesses signed the will? As Adam Hirsch’s Formalizing Gratuitous and Contractual Transfers: A Situational Theory points out, however, the laws of contracts, gifts, and estates and trusts are all fundamentally about transfers. And perhaps we could considerably simplify the law if we abolished doctrinal categories and instead focused on the circumstances under which transfers occur.

At present, each doctrinal category has its own set of requirements for a valid transfer. Broadly speaking, contracts must comply with the statute of frauds; gifts must be delivered, and wills must be written, signed, and witnessed. But each of these formal requirements has exceptions. Lots and lots of exceptions, as well as inconsistencies, and Hirsch details most of them. These exceptions have sprung up over time, as legislatures and judges try to account for the varying circumstances under which transfers occur. Continue reading "Erasing the Lines Between Contracts, Gifts, and Wills"

 
 

Making Courts Attractive to Plaintiffs

Daniel M. Klerman & Greg Reilly, Forum Selling (December 31, 2014), available at SSRN.

Have you read Supreme Court cases on personal jurisdiction and wondered about the utilitarian basis for restricting the power of a court to assert jurisdiction over the parties in a case? The court opinions have often left me wondering what problem jurisdictional restrictions are designed to address. Finally, someone has provided an answer.  Dan Klerman (USC Law School) and Greg Reilly (California Western Law School), in their recent working paper, “Forum Selling,” provide a theory of inefficient jurisdiction grabbing by courts. If courts have a tendency to grab jurisdiction excessively under certain conditions, as Klerman and Reilly argue, then society’s welfare could be enhanced by restricting their power to assert jurisdiction.

The authors note that limitations on jurisdiction would probably not be necessary if all legal disputes arose out of contracts. The parties to contracts have incentives to choose the courts that optimize the value of their contracts, provided both sides to the contract are reasonably sophisticated. An accurate, fair, and efficient court enhances the joint value of the contract, leaving more surplus to be divided between the parties. To be more specific, sophisticated contract parties will choose the court that maximizes the difference between the joint governance benefits of the contract and the dispute resolution costs. Thus, there is little basis on social welfare grounds for preventing sophisticated parties from forum shopping through contract. The same can be said when the parties jointly agree on the dispute resolution forum, because if a forum gets a reputation for being too one-sided in favor of plaintiffs or defendants, few parties will jointly choose it as a place to resolve disputes. Continue reading "Making Courts Attractive to Plaintiffs"

 
 

Law Learning from Medicine

Evan D. Anderson & Scott Burris, Educated Guessing: Getting Researchers and Research Knowledge into Policy Innovation, Temp. U. Legal Stud. Res. Paper No. 2014-10, available at SSRN.

The Society for Empirical Legal Studies (SELS) was created less than a decade ago to create a forum for scientific research on the law itself, and the Society has grown each year, with now hundreds of submissions from all over the world for its annual conference and flagship journal. Although there are many strands of such research, a primary research question is whether any particular law works to achieve its end, and if so how? Does the death penalty reduce crime? Does medical malpractice reform promote patient safety or lower costs? Do restrictions on the practice of medicine promote health?

Even before SELS was created, scholars in many fields were looking at the law as an independent variable, and looking at various dependent variables that could be used to access their success or failure. Health outcomes present an obvious dependent variable, given its importance for overall welfare and given the rich data available in this sector. Five years ago, the Robert Wood Johnson Foundation created the Public Health Law Research Program (PHLR), and appointed law professor Scott Burris as its director. PHLR is dedicated to “building the evidence base for laws that improve public health. PHLR funds research, improves research methods, and makes evidence more accessible to policy-makers, the media, and the public.” PHLR has helped to create a rich multidisciplinary field of scholars and practitioners engaged in this sort of research to understand the impact of law on health.

This empirical turn in legal scholarship—drawing other scholarly disciplines into the law and developing empirical capacities among legal experts—creates a wonderful opportunity to improve the law itself. As the methods become more rigorous and the breadth of the work grows, it will be possible for lawmakers to make more intelligent decisions about which laws to enact and which to repeal, based on the empirical evidence as to whether they in fact work. In this way, evidence can supplant ideology in the law, just as evidence has supplanted superstition in medicine. In the grand scheme of things, this approach begins to fulfill the aspirations of philosophers like Francis Bacon, Jeremy Bentham, John Dewey—who all sought to bring intelligent evidence into the domain of social policy.

With this background, I turn to the excellent new work of Evan Anderson and Scott Burris. In this paper, Anderson and Burris begin to explore the question of how empirical evidence can feed into the lawmaking process. Assuming that the science has been performed, and that it is good, how can policymakers incorporate those findings to actually improve the laws on the books and the laws as enforced? This inquiry is analogous to the question of “translation” in medicine, the movement of scientific findings from the bench to the bedside. Continue reading "Law Learning from Medicine"

 
 

Does Punishment Work (at Least in International Tax)?

Niels Johannesen and Gabriel Zucman, The End of Bank Secrecy? An Evaluation of the G20 Tax Haven Crackdown, 2014 Am. Econ. J. Econ. Policy 65.

The OECD is currently undertaking a major study of virtually every significant issue confronting the international tax regime through its “base erosion and profit shifting” (BEPS) project. Among the proposals for reform include the familiar call for increased penalties on non-cooperative states. In fact, punishment has served as a core feature of virtually every modern attempt to combat tax competition.

But does punishment really work in this context? Niels Johannesen and Gabriel Zucman address precisely this question in their paper The End of Bank Secrecy? An Evaluation of the G20 Tax Haven Crackdown. The best way to describe the project is to quote the abstract:

During the financial crisis, G20 countries compelled tax havens to sign bilateral treaties providing for exchange of bank information. Policymakers have celebrated this global initiative as the end of bank secrecy. Exploiting a unique panel dataset, our study is the first attempt to assess how the treaties affected bank deposits in tax havens. Rather than repatriating funds, our results suggest that tax evaders shifted deposits to havens not covered by a treaty with their home country. The crackdown thus caused a relocation of deposits at the benefit of the least compliant havens.

This paper provides an extremely important and timely contribution to the international tax literature. Anecdotal evidence about the effectiveness of punishment has been mixed to date, and there has been little empirical data directly on the question. Further, the question taps into a larger debate over the underlying, root causes of tax competition more generally. By providing empirical data directly on this question, Johannesen and Zucman move the debate forward in an extremely valuable way. Continue reading "Does Punishment Work (at Least in International Tax)?"

 
 

Beyond Diversity Rhetoric: Understanding the Link between Professional Responsibility and Reasonable Accommodations for Lawyers with Disabilities

Over the last three decades organized bar groups and law firms have embraced the value of diversity, taking steps to promote diversity among ranks of lawyers. These diversity initiatives fall short when they do not include the interests of lawyers in different groups. One group that is often ignored is comprised of lawyers with disabilities. That is one of the reasons that I especially liked this article.

Professor Long’s article is a welcome addition to the scholarship on diversity in the legal profession. It addresses important issues that deserve attention, providing insightful observations on the connection between professional responsibility and the inclusion and treatment of lawyers with disabilities. Specifically, the article examines the inextricable link between lawyers’ professional responsibility under the ethics rules, professionalism, and the Americans with Disabilities Act (ADA) provisions that require reasonable accommodations for persons with disabilities. Continue reading "Beyond Diversity Rhetoric: Understanding the Link between Professional Responsibility and Reasonable Accommodations for Lawyers with Disabilities"

 
 

The Open Access Advantage in Legal Education’s Age of Assessment

James M. Donovan, Carol A. Watson & Caroline Osborne, The Open Access Advantage for American Law Reviews (October 7, 2014), available at SSRN.

Open access (OA) scholarship is available online, without fees, and free of restrictive copyright and licensing provisions. As institutions of higher education implement a more metrics-driven paradigm, law schools are increasingly attentive to the quantification of both individual faculty and aggregate law school impact. Citation counts are one means of quantifying these impacts. Donovan, Watson, and Osborne build on their 2011 article, Citation Advantage of Open Access Legal Scholarship, which demonstrated that open access resources have a great impact on legal scholarship, (103 Law Lib. J. 553, 557). In this article, they work to develop a systematic and scientific explanation for why open access scholarship has a citation advantage in the legal education context.

The authors’ research shows that articles published simultaneously as print and open access law review articles provide at least a 50% citation advantage over their print-only law review counterparts. More specifically, they find that the aggregate cumulative OA advantage for new and retrospective works combined is about 53%; the OA advantage of newer works published during the years 2007-2012 is about 60%. Their research also indicates that OA articles are more heavily cited in the years immediately following an article’s publication and that OA articles tend to “command greater attention over the lifespan of the work” (Donovan et al, at 8). Continue reading "The Open Access Advantage in Legal Education’s Age of Assessment"

 
 

Racialized Violence and American Liberalism

Daniel Kato, Constitutionalizing Anarchy: Liberalism, Lynching, and the Law, 10 J. of Hate Stud. 143 (2012).

For nearly a century in the American South, lynching as a practice of racialized violence persisted openly and with minimal federal intervention. In his article, “Constitutionalizing Anarchy,” the center-piece of a book forthcoming from Oxford University Press titled Liberalizing Lynching: Building a New Racialized State, 1883-1966, Daniel Kato not only provides a compelling and novel explanation for the reasons why. He also forcefully argues that one cannot understand either the character of American liberalism or how the American state developed over the course of the twentieth century without placing the question of racial violence at the center.

In studies on American political development, accounts of lynching and its persistence abound. Some scholars argue that the American state in the post-Civil War period was “weak,” institutionally limited in its capacity to address rampant violence against African Americans—especially given the divided and federalist nature of the constitutional system. By contrast, others contend that rather than being incapable of stopping lynching, the federal government actually implicitly sanctioned the activity. Continue reading "Racialized Violence and American Liberalism"

 
 

The Federalism Argument for Judicial Diversity

For the past several years, commentators have discussed the importance of diversity in the federal judiciary. Yet in at least some respects the federal judiciary is becoming less diverse, not more. Consider the current Supreme Court. Five of the justices—Ruth Bader Ginsburg, Antonin Scalia, Samuel Alito, Sonia Sotomayor, and Elena Kagan—are from the Northeast, and two others—Chief Justice John Roberts and Justice Clarence Thomas—went to law school on the East Coast and have spent the vast majority of their professional lives in Washington, D.C. Only Justices Stephen Breyer and Anthony Kennedy, who both grew up in California, are from the West Coast. We have no sitting justice from the Northwest or the Midwest, nor do we have a justice who assumed the bench directly from a position in the South.

To the ongoing conversation about diversity in the federal judiciary, Sharon Rush’s recent article offers an intriguing argument in favor of geographic diversity. She explains that the principles of federalism embedded in Article III favor consideration of geographic diversity in federal judicial appointments. Even the simple structure of the judiciary that we take for granted reflects the concern that different geographical regions are adequately represented: the circuits are designed by geography, each state has at least one federal district court judge, and no district combines multiple states. This organization, Rush persuasively explains, “is partly due to efficiency concerns, but is also a result of federalism and state participation in protecting individual liberties.” While Article III does not require this structure, its concern for federalism explains why the judiciary has been designed as it has. Continue reading "The Federalism Argument for Judicial Diversity"

 
 

Cyber-Sexual Harassment

Danielle Citron, Hate Crimes in Cyberspace, Harvard University Press (2014).

Danielle Citron’s Hate Crimes in Cyberspace is a breakthrough book. It has been compared, and with good reason, to Catherine MacKinnon’s Sexual Harassment of Working Women. The book makes three major contributions. All are central to furthering the equality of women and men both in cyberspace and elsewhere.

First, Citron convincingly catalogues the range of harms, and their profundity, done to many women and some men by the sexual threats, the defamation, the revenge pornography, the stalking, and the sexual harassment and abuse, all of which is facilitated by the internet. Women who blog on virtually any topic, certainly on feminist or sexuality sites but also on technical software or engineering sites, or who simply have a presence in cyberspace in any of the various forms the medium permits, can be and frequently are targeted for extreme forms of vitriolic and sexualized assaults, not just from a few isolated and psychopathological bad apples, but by large groups of linked commentators, who quite intentionally and explicitly spread the cyber-hate through organized, networked technologies, and to virtually all corners of the cyberspace. The assaults threaten the victim and sometimes her family members—particularly younger sisters—with sexual injury, rape, dismemberment and murder, and are sometimes accompanied by personal information such as place of employment and addresses. The defamation comes in the form of claims that the victim is incompetent at her work or in her career, hyper-sexualized (e.g., that she enjoys sex with strangers, with home addresses included), or dishonest or fraudulent, which are spread widely, and are intended to professionally injure and humiliate the victim in her workplace or school, and prevent her advancement or hiring in her field. “Revenge pornography” refers to the publication for public consumption and without the victim’s permission of nude photos or videos which may have been made with the victim’s knowledge, but are then widely distributed for the express purpose of exacting revenge, usually because of a break-up. Stalking is in the form of constant harassment and surveillance on line, with the threat of it spilling over into offline stalking as well. The harassment and abuse take all of these forms as well as others: chat rooms created and dedicated to the destruction of the victim’s reputation, or to the expression of hate and sexual insults, or to the mounting of threats intended to intimidate or terrorize. Continue reading "Cyber-Sexual Harassment"

 
 

Measuring Serendipity

Bhaven N. Sampat, Serendipity (Mar. 8, 2014), available at SSRN.

“Serendipity, the notion that research in one area often leads to advances in another, has been a central idea in the economics of innovation and science and technology policy.” Yet, Bhaven Sampat argues, “serendipity is a hypothesis, not a fact,” and it therefore needs to be tested. So Sampat set out to do just that, designing an impressive study to measure serendipity in pharmaceutical research. In this context, Sampat defines serendipity in terms of cross-disease spillover: results are serendipitous when research that was originally funded for one purpose (to target a certain disease) turns out to be useful for another purpose (in the treatment of different diseases).

Sampat tests the serendipity hypothesis by comparing the disease foci of NIH grants to the research output from those grants. Because most of the NIH Institutes and Centers are explicitly disease-oriented, Sampat is able to compare the disease foci of the granting Institutes to the foci of publications that result from the grants, to citations to these publications in patents, and then to marketed drugs associated with those patents. Finally, Sampat focuses on the subset of drugs held by NIH researchers themselves (the Bayh Dole drugs). Publications, patents, and drugs with different disease foci than the granting Institute are deemed evidence in support of the serendipity hypothesis. Continue reading "Measuring Serendipity"

 
 

Rhetoric and Clarity

James G. Dwyer, Misused Concepts and Misguided Questions: Fundamental Confusions in Family Law Debates, 4 Int’l J. Jur. Fam. 239 (2013).

In “Misused Concepts and Misguided Questions,” Jim Dwyer is working within an important tradition of thinkers (going back at least to George Orwell’s famous essay, “Politics and the English Language”) who correct the sloppy arguments, rhetoric, and terminology the rest of us make, to bring us collectively towards clearer moral and policy arguments. There is also more local and recent precedent for this effort. In his critique of the misleading rhetoric of “government intervention,” Dwyer rightly notes (p. 239 n. 2) that he is making essentially the same point that Frances Olsen made in her famous 1985 article “The Myth of State Intervention in the Family,” 18 U. Mich. J. L. Reform 835 (1985). Family law scholarship can certainly use more of the sort of critique that Olsen and Dwyer bring.

Dwyer’s point (like Olsen’s earlier) is that it is wrong and misleading to view the policy choices relating to the regulation of families as being between “government intervention” and “non-intervention.” Government intervention in the family is inevitable, if only to set the baseline rights and duties of the individuals. Especially when one considers the prerogatives spouses have to one another, and the powers parents have over their children, it is hard to discern what “non-intervention” could mean. No government presence at all would entail a sort of Hobbesian world, the war of all against all. Instead, all interactions are regulated and constrained by basic rules creating criminal and civil sanctions for assault, fraud, robbery, rape, murder, etc. No one is suggesting that these “interventions” be removed. Continue reading "Rhetoric and Clarity"

 
 

Entering the Spaces of Power

What has happened to the vocabulary of justification associated with the welfare state – that language of need, equality and social justice so crucial for anchoring and grounding public action? Have the terms of justification become appropriated and re-aligned, articulated to neoliberal concepts of entrepreneurship, discipline and waste, or simply abandoned? And does anything remain of a more progressive set of significations (or chains of meaning)?

In a thoughtful, wide-ranging and nuanced article, the eminent public governance scholar, Janet Newman, explores some ways of diagnosing the present, situating contemporary strategies of governing, in nations such as Britain, in relation to concerns about the securing and unsettling of political consent. What causes people to sign up to or acquiesce in current governance arrangements, and what challenges to this often reluctant acquiescence are posed, as nations struggle to define, mobilise and respond to political moments of ‘crisis’? Continue reading "Entering the Spaces of Power"

 
 

Ending the “Correctional Free Lunch”

W. David Ball, Defunding State Prisons, 50 Crim. L. Bull. 1060 (2014).

Professor W. David Ball has outlined a fundamental pathology of American criminal justice policy and offered a solution. The problem is that states generally pay the full cost of imprisonment, but they do not decide who goes to prison. Instead, most police and prosecutors act at county levels or below. In an era where mandatory sentencing is common, every cop, prosecutor and judge can write any number of six- or seven-figure checks that someone else must pay. Thus, when a prosecutor makes a charging decision or makes a sentencing argument to a judge, no one involved need consider whether the cost of imprisonment represents a net benefit to society. A long sentence takes nothing from the budget of the judge and prosecutor, just as a short sentence or non-prison sentence does not preserve resources usable for something else. The state offers prosecutors and judges a choice: on the one hand, unlimited free prison; in the alternative, nothing.

The absence of a close connection between decisionmaker and funder might have been tolerable when prisons housed a far smaller share of the population, and the number of offenses in state penal codes were much fewer. But the United States has had record rates of imprisonment in recent years, for an array of crimes, a large number of which are not common law felonies or other traditional moral wrongs. Continue reading "Ending the “Correctional Free Lunch”"

 
 

Putting the Summary Judgment Cart before the Bias Horse in Employment Discrimination Cases

In The Trouble with Torgerson: The Latest Effort to Summarily Adjudicate Employment Discrimination Cases, Professor Theresa M. Beiner challenges a relatively recent Eighth Circuit case, Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011), that argues that employment discrimination cases are no poorer candidates for summary judgment adjudication than other cases. Professor Beiner argues that employment discrimination cases tend to be ill-suited for summary judgment because they usually involve intent issues, which are ill-suited for summary adjudication. In addition, they involve claims of discrimination, which can be more difficult to resolve on summary judgment than at trial because of issues related to implicit bias.

The article is a part of the Nevada Law Journal’s Symposium on the 50th Anniversary of Title VII. The entire symposium is worth a read, with contributions addressing subjects including harassment, retaliation, and employer policies on using employee criminal records. Indeed, some of the other articles also qualify as TWELL (things we love lots). Continue reading "Putting the Summary Judgment Cart before the Bias Horse in Employment Discrimination Cases"

 
 

“They’re Coming to Get You, Barbara.”

Julie Cohen, The Zombie First Amendment, 56 Wm. & Mary L. Rev. __ (forthcoming 2015), available at SSRN.

Julie Cohen’s The Zombie First Amendment does not present itself as a piece of cyberlaw scholarship. It’s a treatment of information governance in the post-industrial, information age through the lens of constitutional law, with a broad range of potential applications—from information privacy to campaign finance reform to intellectual property law to network neutrality. In a sense, it’s a meta-cyberlaw paper. It’s not about information technology, but about information as technology.

Any piece by Julie Cohen both demands and rewards a more careful reading than a brief review such as this one can offer. Brevity is today’s currency, however. Begin, then, with the following overview of her argument: Contemporary First Amendment jurisprudence, she argues, is a species of the walking dead, legal doctrine whose form gives the appearance of being a plausibly sentient and responsive entity but whose spirit, soul, and intelligence has been displaced by powers that answer to a different, seemingly unstoppable and almost technological logic. Contemporary information practices have eaten the First Amendment’s brain. Continue reading "“They’re Coming to Get You, Barbara.”"

 
 

The Federal Courts Junior Scholars Workshop

This is an unusual entry for JOTWELL, because it presents an event rather than a published work of scholarship. But, I think, it’s appropriate for JOTWELL because the event is indeed something I liked (lots). The Federal Courts Junior Scholars Workshop, now an annual event, is representative of an important recent development in legal scholarship—the proliferation of venues for the presentation of work-in-progress by relatively junior scholars. They supplement faculty-organized research workshops, which typically involve the presentation by one scholar (not always junior) to a group of faculty and students at the host institution, but with few or no other junior scholars in the field present. Faculty-organized research workshops seem to me to operate on a catch-as-catch-can basis: the people in charge of the workshops contact people they know to locate scholars with work far enough along to be worth presenting. And, finally, these workshops are sometimes try-outs for permanent faculty appointments at the host institution.

The newer junior scholars workshops are different. They are usually, though not always, self-organized (the Harvard-Stanford-Yale junior faculty workshop is an exception, to which I’ll return) by younger scholars in the field. They seek submissions, usually abstracts, for the longer papers that will be presented at the workshop. My guess is that these workshops in their early years may not be all that selective, but as each workshop becomes established selectivity increases. These workshops have multiple purposes. First, at least in self-understanding and advertising, is giving junior scholars the opportunity to present their work before it is finished, to an informed audience whose comments might improve its quality. This is enhanced by the presence of senior faculty in the field as commenters. The senior faculty can sometimes become (unexpected) mentors for the junior faculty, and their commitment of time suggests that they might be available as outside reviewers in tenure and promotion processes. And, of course, the events build a community of junior faculty members in the field, particularly important to a junior faculty member who may be the only scholar in her field at her home institution. The host institution, which has to provide at least a modest subsidy for the workshop, gets some visibility in the legal academy as well. (This has some implications for issues of design, as I’ll note.) Continue reading "The Federal Courts Junior Scholars Workshop"

 
 

Hypothesizing Regulatory Instability

Erik Gerding’s recent book, Law, Bubbles, and Financial Regulation, is an ambitious and fascinating project that seeks to explain how asset bubbles—a perennial staple of economic history—lead to and, in turn, are exacerbated by financial regulation. Gerding makes it clear from the outset that his goal is to move beyond “fixing immediate symptoms” of a financial crisis and try to uncover the fundamental factors that explain how disasters happen. To this end, he advances what he calls the Regulatory Instability Hypothesis, a conceptual framework for explaining how financial markets (traditionally, a realm of private ordering) and financial regulation (the public sphere) get locked into a deadly spiral leading to a crisis. Gerding identifies five key dynamics that define this interaction: the regulatory stimulus cycle, compliance rot, regulatory arbitrage frenzies, pro-cyclical regulation, and promoting of investment herding. His Regulatory Instability Hypothesis holds that these five distinct dynamics pose danger to financial stability by undermining laws and regulations designed to protect it.

In my opinion, one of the most interesting and novel elements of Gerding’s argument is his concept of the “regulatory stimulus cycle.” Various scholars before Gerding wrote about the multiple causes and consequences of various deregulation campaigns, including privatizations of previously public functions and repeal of specific laws viewed as constraining private markets. In the aftermath of the latest financial crisis, in particular, many were searching for specific legal mechanisms that enabled unsustainable growth in risk and leverage within the financial system in the pre-crisis decades. For example, some scholars argued that the latest crisis could be traced directly to the partial repeal of the Glass-Steagall Act in 1999 and/or the passage of the Commodity Futures Modernization Act of 2000—the two most significant deregulatory legislative acts in recent times. Others (including myself) have focused on specific regulatory or legislative actions enabling financial institutions to conduct business activities that fed the pre-crisis asset bubble. Continue reading "Hypothesizing Regulatory Instability"

 
 

We Found Out That Counting Lizard Poop Is Not A Good Way To Count Lizards: Now What?

Adrian Vermeule, Rationally Arbitrary Decisions (in Administrative Law), Harv. L. Sch. Pub. L. & Legal Theory Res. Paper Series (2013), available at SSRN.

Professor Vermeule has a knack for giving irresistible titles to articles that ask deep questions about administrative law—as demonstrated by the essay that is the subject of this little jot, Rationally Arbitrary Decisions (in Administrative Law). The apparent oxymoron grabs attention: Aren’t arbitrary decisions, by administrative-law hypothesis, irrational? Where reasoned decision-making stops, there arbitrariness begins, no?

There is a problem with this neat dichotomy. If you will forgive a tautology, a reasoned explanation for an action, if actually reasonable, shouldn’t depend on reasons that can’t reasonably be given. Sometimes, agencies must act, and they must do so in the teeth of genuine uncertainty. Embedded in the preceding claim is a distinction often drawn between risk and uncertainty. Risk allows for rational assignment of probabilities to outcomes (e.g., there is a 50% chance that a fair coin will turn up heads). Where genuine uncertainty exists, no such assignment of probabilities is possible—e.g., “[no] human actor … has any epistemic justification for attaching probabilities to events that may or may not occur eons in the future.” (P. 4.) When confronting uncertainty, “reasons run out and a relentless demand for further reason-giving becomes pathological.” (P. 2.) Continue reading "We Found Out That Counting Lizard Poop Is Not A Good Way To Count Lizards: Now What?"

 
 

The Heir Who Laughs, Laughs Last

John V. Orth, “The Laughing Heir” What’s So Funny?, 48 Real Prop., Tr. & Est. L.J. 321 (2013).

Professor John V. Orth takes a look at the limitations of intestate succession in his recent article, “The Laughing Heir” What’s So Funny. Unless an individual is the last human being on earth, when he or she dies, a surviving relative will exist. How closely related should the relative be to the decedent in order to inherit the decedent’s estate through intestate succession?

Common law canons of inheritance did not include a decedent’s ancestors as his or her heirs. Surviving spouses were also excluded. If a decedent had no descendants, his or her nearest collateral relatives inherited the estate. As long as there was proof of a blood relationship, a remote collateral could inherit the decedent’s estate. Continue reading "The Heir Who Laughs, Laughs Last"