Monthly Archives: November 2015

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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"