Monthly Archives: June 2015

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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"