Monthly Archives: December 2015

Thank You

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

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

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

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

See you in the New Year!

A Dormant Commerce Clause Approach to Interstate Electricity Transmission

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

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

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

What Happens if We Call Discrimination a Tort?

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

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

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

Rulemaking’s Puzzles

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

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

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

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

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

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

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

Exploring the “How” of Tax Legislation

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

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

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

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

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

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

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

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

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

Legal Export and the Transformation of American Identity

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

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

Privacy and Freedom of Speech in the Internet Era

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

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

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

Authorship, Attribution, and Audience

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

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

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

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

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

Reconceptualizing Health Law to Incorporate Justice-Based Concerns

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

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

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

A Fresh Look at Qualified Immunity

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

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

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

Marriages, Contracts, and Deals

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

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

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

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

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

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