Monthly Archives: July 2015
“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. Edwards’ A 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"
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,” 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"
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:
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"
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"
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?"
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"
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"
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"
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, 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"
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"
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"
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"
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"
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"
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"
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"
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?” 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?"