Monthly Archives: May 2016

Concrete Suggestions Around Conflict Minerals and Corporate Supply Chains

Galit Sarfaty, Shining Light on Global Supply Chains, 56 Harv. Int’l L. J. 419 (2015).

Supply chains. Not too long ago, I found myself nodding wisely along when someone was talking about them. The truth is that my nodding signaled only that I recognized their significance as components of the modern global economy, and as objects of legal study. In no way did my nodding signal that I actually knew much about them.

These are the things I do know about supply chains: they are important; they are complex and present complex challenges; their trans-border nature makes them hard to regulate; and bad things regularly happen in developing countries, at the ends of supply chains that provide goods many of us have come to rely on. Things I don’t know about supply chains: above all, I don’t know in precise terms just how inadequate existing legal regimes – domestic, transnational, public, or private – are in dealing with supply chain problems; where the shortcomings are and the precise consequences of those shortcomings; and whether I should be hopeful or despondent about the prospect of addressing them.

Happily, Galit Sarfaty has shone new light into one aspect of supply chain regulation, through something I do know a bit about: disclosure-based securities regulation. In the process, she has illuminated the potential of domestic law in addressing the use of conflict minerals within corporate supply chains, and the significant limits of corporate conduct on the matter to date. Continue reading "Concrete Suggestions Around Conflict Minerals and Corporate Supply Chains"

Getting it Wrong on Right to Counsel, By the Numbers

Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 64 U. Pa. L. Rev. 1 (2015).

I admit it. I’m a data geek. Not that I produce any of it myself—regression analysis makes my hair stand on end—but I am really good at admiring the work of people who are really good with data. And the data I really like (lots) sheds light on issues we all really care about. Presumptuous of me, you might think, to think I know what you care about. But don’t you care about lawyers?

You will, if you don’t, after you read Ingrid Eagly and Steven Shafer’s A National Study of Access to Counsel in Immigration Court. Before delving into it, recall Judge Richard Posner’s less-than-oblique critique of the immigration bar in 2015:

There are some first-rate immigration lawyers, especially at law schools that have clinical programs in immigration law, but on the whole the bar that defends immigrants in deportation proceedings … is weak—inevitably, because most such immigrants are impecunious and there is no government funding for their lawyers.

Eagly and Shafer begin where Judge Posner left off—with the story of the momentum toward establishing a first-rate public defender system for poor immigrants facing deportation. Judge Robert Katzmann, Peter Markowitz, Stacy Caplow, and Claudia Slovinsky led the most prominent of these efforts, which culminated in the New York Immigrant Family Unity Project. That project provides detained New Yorkers with representation in removal proceedings at state expense. And what convinced the New York state legislature to support such a scheme, aside from Judge Katzmann’s gravitas and Stacy Caplow and Peter Markowitz’s irresistible charm? Continue reading "Getting it Wrong on Right to Counsel, By the Numbers"

Disclosure about Disclosure

Margaret B. Kwoka, FOIA, Inc., Duke L.J. (forthcoming 2016), available on SSRN.

Congress may be gridlocked on many issues, but both parties are working hard to strengthen the Freedom of Information Act. Motivations differ, of course. According to the New York Times, Republicans are displeased with the State Department’s response to requests for then-Secretary of State Hillary Clinton’s emails while Democrats favor a stronger transparency statute.

Margaret B. Kwoka’s forthcoming article, FOIA, Inc., in the Duke Law Journal already has a place in the policy discussions (and in the NY Times). It should also have a place in research and teaching in Administrative Law. I am a strong proponent of teaching something about FOIA in the core Administrative Law class, focusing on its potential use as an oversight mechanism and as an information tool in the many cases that are excluded by the Federal Rules of Civil Procedure and the presumption of regularity from discovery. I warn students, however, that they should not be swayed by tales of disinfecting sunlight, mentioning briefly old studies about the use of FOIA by private parties to get information about other private parties. Continue reading "Disclosure about Disclosure"

A Cure for Just-In-Time Scheduling

Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan, Stabilizing Low-Wage Work: Legal Remedies for Unpredictable Work Hours and Income Instability, 50 Harv. C.R.-C.L. L. Rev. 1 (2015) available at SSRN.

Many readers were introduced to the concept of “just-in-time scheduling” when the New York Times explored the exhausting and chaotic work life of a Starbucks barista in August 2014. But the practice is certainly not limited to Starbucks. In response to this broader trend, groups like “OUR Walmart” are calling not only for higher wages and more full-time jobs, but for predictable and dependable scheduling, and left-leaning states and cities are beginning to mandate predictable work schedules for at least some workers. This emerging locus of advocacy and media attention is also the subject of Stabilizing Low-Wage Work, a great new article by Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan. The article analyzes comprehensively not only the problem of “just-in-time” scheduling for low-wage workers, but also the potential for either collective bargaining or state and local law to solve that problem.

Adapted from the practice of just-in-time manufacturing, just-in-time scheduling refers to the now-common practice of adjusting staffing levels in response to current conditions. While it is a problem for workers with many types of jobs, it has particularly taken hold in the service sector where, the article reports, “almost 30 percent or workers” have schedules with “variable start and end times.” Moreover, as the article shows, modern technology has made just-in-time scheduling attractive; employers can monitor and anticipate customer demand in close to real-time, sending workers home or canceling their shifts altogether if potential customers are staying home. Conversely, employers may want to call people in at a moment’s notice; this requires employees to wait by the phone, but seldom results in on-call pay. Federal law, particularly the Fair Labor Standards Act, does little to address this problem; when that law was drafted, the greater problem was that employers frequently demanded excessively long hours from workers. Continue reading "A Cure for Just-In-Time Scheduling"

Add Probating Your Will to Your Bucket List

Susan G. Thatch, Ante-Mortem Probate in New Jersey—An Idea Resurrected?, 39 Seton Hall Legis. J. 331 (2015).

Ante-mortem probate addresses a glaring deficiency with the post-mortem probate model prevalently used in the United States. In post-mortem probate contests the key witness—the testator—is deceased, leaving the courts with only indirect evidence of the testator’s capacity and freedom from undue influence. The relative ease with which individuals dissatisfied with the testator’s choice of beneficiaries may manipulate this indirect evidence encourages spurious will contests. In ante-mortem probate the testator executes a will and then asks for a declaratory judgment ruling that the will is valid, that all technical formalities were satisfied, that the testator had the required testamentary capacity to execute a will, and was not under undue influence. The beneficiaries of the will and the heirs apparent are given notice so they may contest the probate of the will. In addition to providing greater certainty to the testator of the will’s validity, the procedure makes will contests less likely. But ante-mortem probate is not without its price: The ante-mortem process may be extremely disruptive to the testator and the testator’s family. The testator may not wish to disclose the contents of the will nor to face the potential embarrassment that may occur if testamentary capacity is litigated. It involves additional costs and may raise due process and conflict of laws problems.

Susan G. Thatch’s article concisely discusses the advantages and disadvantages of implementing an ante-mortem probate statute in New Jersey and, by analogy, in any state. The article focuses on the debate of whether allowing ante-mortem probate is useful to testators or harmful to families by reviewing the ante-mortem probate model currently used by five states, as well as other models which scholars have suggested. The article takes the view that if the suggested statute is implemented, it should supplement instead of supplant traditional probate options already available to New Jersey citizens. Figuring out the best way to ensure peace of mind for the testator while fully considering the arguments for and against an ante-mortem probate statute forms the foundation of the article. Continue reading "Add Probating Your Will to Your Bucket List"

Tort Law in the Laboratory

Theodore Eisenberg and Christoph Engel, Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13 J. Empirical Legal Stud. 116 (2016), available at SSRN.

Empirical study of the law is important, particularly for tort law. Fundamental components of the tort system are a “black box,” which largely explains why the field is riven by theoretical disagreement over the purpose of tort law. The claim that tort law efficiently reduces accident costs, for example, critically depends on the extent to which the threat of tort liability deters risky actors from behaving inefficiently. The available data on accidents, however, do not directly measure the relationship, no doubt because the injury rate is affected by a large number of other interrelated factors such as changes in wealth and technology that are extraordinarily hard to disentangle, making it extremely difficult to identify the impact that tort liability has had on actual accident rates. To isolate the influence of particular factors such as the threat of tort liability, empirical study must instead turn to the laboratory, where researchers can conduct experiments that are designed to tease out the role of the varied factors that plausibly explain the accident rate—an excellent example of which is provided by Theodore Eisenberg and Christoph Engel in their article, Unpacking Negligence Liability: Experimentally Testing the Governance Effect.

As persuasively argued by Frederic Schauer in The Force of Law (2015), important jurisprudential questions depend on the particular reasons why individuals comply with the law. In particular, individuals often have independent normative reasons for acting in the manner otherwise required by the law, in which case the law itself is not motivating the behavior. “Until we can understand the different ways in which law intersects with its subjects’ law-independent preferences, we cannot begin to understand the role of incentives and coercion in motivating legal compliance.” (P. 100.) The experiment conducted by Eisenberg and Engel was designed to address exactly this type of problem. Continue reading "Tort Law in the Laboratory"

Sex Discrimination: The Future of LGBT Rights?

For several decades, scholars, lawyers, and judges have debated whether laws against same-sex marriage are a form of discrimination based on sex. Most recently, during the oral arguments in Obergefell v. Hodges, Chief Justice Roberts asked whether it was “necessary to get into sexual orientation to resolve this case,” given that the challenged marriage laws treated couples differently based on their sex: “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”1

For a long time now, the sex discrimination argument for LGBT rights has been a darling of law professors, thoughtfully developed over the years by several of the legal academy’s leading minds.2 Unfortunately, it has not fared so well among judges. Although plaintiffs have been advancing this argument since the 1970s,3 only a handful of trial and appellate judges have endorsed it.4 Notwithstanding the Chief Justice’s remark at oral argument, the sex discrimination argument was not specifically addressed in Obergefell itself.5 After Obergefell, legal scholars are left to wonder what, if anything, will come of the hard work that so many have devoted to this subject for so many years. In her recent essay, Risky Arguments in Social-Justice Litigation, Suzanne Goldberg takes up the question of why courts have been so reluctant to adopt the sex discrimination argument in same-sex marriage cases. Continue reading "Sex Discrimination: The Future of LGBT Rights?"

Putting a Face to International Tax Avoidance

Omri Marian, The State Administration of  International Tax Avoidance, 7 Harv. Bus. L. Rev. (forthcoming, 2016).

The world of international tax avoidance is a colorful one. There are the legal structures, with names like the “Double Irish Dutch Sandwich,” the exotic locales, like Bermuda and the Cayman Islands, and the identity crises presented by “hybrid” entities and financial instruments. But rarely does international tax avoidance have a human face and one could be forgiven for getting the impression that falling effective corporate tax rates are as inevitable as water flowing downhill. Corporations, acting in the interests of their shareholders, maximize their after-tax profits. States, acting in the best interests of their residents, set tax policies that are incongruous with the policies of other states. The “bad actors,” if there are any in this story, are corporate aggregates of one sort or another, multinational corporations and tax haven countries.

But the LuxLeaks scandal has given us one human face that stands out from the crowd of aggregates. This is the face of Marius Kohl or “Monsieur Ruling,” the former head of the Luxembourg agency, who gave rulings to taxpayers on the tax treatments of their proposed transactions. In The State Administration of International Tax Avoidance, Omri Marian does a wonderful job of explaining how this one bureaucrat acted to facilitate massive tax avoidance by engaging in “arbitrage manufacturing.” Marian argues that rogue individuals pose an ongoing threat to international tax cooperation. His paper clearly explains how arbitrage can be manufactured, documents how it was done in Luxembourg, and draws from the LuxLeaks episode an important lesson about the need to integrate micro reforms of tax administration into the macro project of international tax harmonization efforts. Continue reading "Putting a Face to International Tax Avoidance"

Is the Crisis in the Profession Good for Consumers?

Benjamin H. Barton, Glass Half Full: The Decline and Rebirth of the Legal Profession (Oxford Univ. Press, 2015).

As the title of Ben Barton’s new book, Glass Half Full, suggests, he sees something positive in the relentless stories of woe we have been hearing about the legal profession since the Global Financial Crisis. In truth we’ve been hearing these stories since before that time, regarding both the legal profession and legal education. Crisis rhetoric seems to come with the territory for lawyers. There were some fat years for the profession, fueled by a long period of postwar economic growth, from the 1950’s through the 1980’s.

But in about the late 1980’s, things started to go badly for many large law firms. Their long-time clients, who had been grumbling about hourly billing and inefficiency, began to bring more legal work in-house. Corporate general counsels then restructured their relationships with outside law firms, often putting work out for competitive bidding and breaking up existing, cozy, bilateral monopolies with the company’s regular outside counsel. Companies no longer looked to outside law firms as general advisors, but as providers of discrete, specialized services. Publications like American Lawyer made information available about revenue and profits per partner, touching off a significant upturn in lateral hiring. Partners now demanded to be compensated for originating business, not simply performing legal services for clients, and as firms shifted from lockstep to “eat what you kill” compensation systems, internal firm cultures became destabilized. Continue reading "Is the Crisis in the Profession Good for Consumers?"

Fit to Be Tied

Justin Pidot, Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016), available at SSRN.

Ever since Justice Scalia passed away in February, the Supreme Court of the United States has been operating with eight justices. As readers are surely aware, this is one justice short of its statutorily mandated population of nine.

There is widespread consensus among mathematicians that the number eight is evenly divisible by two, while the number nine is not. So it should come as no surprise that the Supreme Court has handed down several 4-4 decisions in recent months, with more expected before the Term wraps this June. In light of Senate Republicans’ refusal to hold a hearing on President Obama’s nominee to replace Scalia—and predictions that such a stalemate might extend well into the next President’s term—this even-numbered state of affairs could well become the new normal. Enter Justin Pidot’s article, which provides a timely, thoughtful, and informative examination of tie votes at the Supreme Court. Continue reading "Fit to Be Tied"

Do Progressive Property Scholars Really Want to Limit Nollan and Dolan to Administrative Exactions?

Timothy M. Mulvaney, Legislative Exactions and Progressive Property, Harv. Envtl. L. Rev. (forthcoming), available at SSRN.

In Legislative Exactions and Progressive Property, Professor Timothy Mulvaney provides a clear and thoughtful discussion of whether legislative exactions should be subjected to the same heightened level of scrutiny that applies to administrative exactions under current Supreme Court doctrine. For those who view exactions as a device that internalizes externalities and forces owners wishing to intensify their use of land to bear the full cost of their development, the conventional wisdom is that Nollan v. California Coastal Commission and Dolan v. Tigard should be read as narrowly as possible.

Both of those cases addressed only administrative exactions and did not need to decide the question of whether similar rules should apply in cases in which the exaction is imposed through more generally applicable legislation. Those who believe that Nollan and Dolan hold government actors to an unreasonably high standard may naturally resist expanding their reasoning to legislative exactions. While acknowledging and largely agreeing with this first-order reasoning, Mulvaney notes second-order effects of confining those two cases to administrative exactions. These second-order effects, he argues, might be more harmful in the long run than those who object to expanding the reach of Nollan and Dolan may have initially recognized. Continue reading "Do Progressive Property Scholars Really Want to Limit Nollan and Dolan to Administrative Exactions?"

Rethinking International Law’s Responses to Refugee Flows

Tendayi Achiume, Syria, Cost-sharing, and the Responsibility to Protect Refugees, 100 Minn. L. Rev. 687 (2015).

Over the past few months, the world has been transfixed by the flows of Syrian refugees pouring into Europe. These mass movements were, of course, preceded by much larger populations fleeing Syria for neighboring countries such as Jordan, Lebanon, and Turkey; at last count, four million Syrians resided in these three states. Though international law mandates protection against refoulement, or return to Syria, for those who fit the definition of a refugee, the UN Refugee Convention says nothing about who should bear the costs of protecting these refugees. This is the gap that Tendayi Achiume seeks to fill in her forthcoming article, Syria, Cost-sharing, and the Responsibility to Protect Refugees.

The question of global cost-sharing for refugees is ground well-trod, perhaps most famously by Prof. Peter Schuck in his 1997 article, Refugee Burden-Sharing: A Modest Proposal. That controversial piece has since framed the debate around the topic. Prof. Achiume steps into this arena with a novel and provocative proposal: to leverage the international legal doctrine known as the Responsibility to Protect (RtoP) in order to frame international coordination around and equitable cost-sharing for refugees. Perhaps best known as the doctrine that enabled humanitarian intervention in Libya, RtoP is not without its critics, as Prof. Achiume readily acknowledges. Her article suggests using RtoP as a tool to address the free rider problem in responding to mass refugee flows while at the same time viewing the situation of Syrian refugees as a tool to rethink potential uses of RtoP on the world stage. Making this case is not a task for the faint of heart; Prof. Achiume’s combination of boldness and fine-grained attention to each layer of her complex argument will manage to convince even the most skeptical of readers to rethink their views of refugee cost-sharing and RtoP. Continue reading "Rethinking International Law’s Responses to Refugee Flows"

The Birth of the Birth Certificate: Age, Child Labor and the Growth of the Administrative State

When I was growing up in New York City, there was a rite of passage that you went through when you turned 14. You got your “working papers.” For a middle class kid, the process was one of your first encounters with the administrative state. You went to the dingy building in downtown Brooklyn that housed the New York State Department of Labor’s Kings County office. There you submitted a form, signed by your parents, along with a copy of your birth certificate. The form itself was a stock item of the postwar, pre-digital bureaucracy: four sheets of stacked, bound, carbonless copy paper (white, yellow, pink, and blue with an instruction to press hard enough to create legible words on the blue copy). The birth certificate was a photocopy – white text on a black background – with a raised seal. The form and the birth certificate were reviewed and stamped by a clerk behind a counter who then returned to you a copy of the form (the pink one, I seem to recall). You now had the permission of the State of New York to be a camp counselor, or to peddle Dove Bars and frozen lemonade from a cart in front of Rockefeller Center

Behind this banal bureaucratic process was over one hundred years of state building, some of it quite familiar. As anyone who remembers their AP American History class will tell you, the substance of the regulatory regime (children can’t work until they’re 14 and even then they are prohibited from industrial labor), and its institutional manifestation (the Department of Labor) are products of the Progressive era campaign against child labor. However, as Susan J. Pearson’s richly detailed article demonstrates, before the political impulse to protect children from the dangers of industrial labor could succeed, the administrative state had to assert its power in another way. The most fundamental obstacle to abolishing child labor was not political resistance from business interests or immigrant families in need of income. Nor was it hostile courts with their concerns about federalism and freedom of contract. The most intransigent barrier to abolishing child labor was the fact that well into the twentieth century, the state had no way of knowing how old somebody was. In a world without state-issued birth certificates, enforcing age-based prohibitions on work was impossible. Continue reading "The Birth of the Birth Certificate: Age, Child Labor and the Growth of the Administrative State"

Super Strong Clear Statement Rules Down Under

Dan R. Meagher, The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under (2015), available on SSRN.

I decided to think outside the box this year with my recommendation, or more accurately, outside of our Country’s academy. About a year ago, an Australian Law Professor Dan Meagher contacted me about presenting his paper to our faculty at Mercer University School of Law. I’m very grateful that he did. Professor Meagher ended up visiting with us for a week this past fall as a visiting scholar. During that time, he provided one of the best development presentations that I have seen. His topic was interesting yet completely outside of most of our expertise. His presentation style was relaxed and fostered the interaction of the entire faculty. Perhaps the relaxing part should not be surprising: Australians are not necessarily known for being uptight. I chose to recommend his article to Jotwell readers because I found the topic interesting, the paper well-written, and the application of the legal doctrine a bit contradictory to the way we do things here in the U.S.

The title of his paper is The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under. In his article, Professor Meagher traces the evolution of the Australian Courts’ approach to protecting fundamental rights. This evolution is fascinating, controversial, and directly connected to both our Constitution and statutory interpretation principles. This history lesson begins with a simple point: “the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.” Our system of a government with separated powers was adopted. Importantly, however, the Australian framers consciously rejected, even deleted from a draft version, the American Bill of Rights. The framers rejected the American approach, believing that common law and a parliamentary form of government offered a superior and more democratic way to protect these rights. Professor Meagher describes the Australian Constitution’s development and the strong role that our Constitution played in the drafting process. That part of the paper should be interesting enough to Administrative Law Scholars who teach this aspect of the Constitution. But the story is much more interesting. Continue reading "Super Strong Clear Statement Rules Down Under"

Alexy’s Anti-Positivism

Robert Alexy, Legal Certainty and Correctness, 20 Ratio Jur. 441 (2015), available at Universidade Nova de Lisboa.

Robert Alexy is one of the foremost contemporary legal theorists of this generation. His work has been very influential, both in analytic legal philosophy (e.g., A Theory of Legal Argumentation (Oxford, 1989) and The Argument from Injustice: A Reply to Legal Positivism (Oxford, 2002)) and in constitutional theory (A Theory of Constitutional Rights (Oxford, 2002)). He is a German theorist; while most of his important works were written first in German, many (like those just listed) have been translated into English, and many shorter articles have appeared originally in English, including the subject of the current jot.

In analytical legal philosophy, Alexy is best known for his “anti-positivist” views—views critical of the legal positivist theories associated with H. L. A. Hart, Joseph Raz, and others. His theory is nicely summarized in the short article being reviewed. Alexy argues that law has a dual nature: (1) a “real” or “factual” dimension, and (2) an “ideal” side. The real or factual dimension is associated with “authoritative issuance and social efficacy”; the ideal dimension is connected with “the element of correctness of content.” (P. 441.) Alexy argues that it is part of the nature of law that it claims to be (morally) correct. And following the German legal theorist of an earlier generation, Gustav Radbruch (in the works he wrote just after World War II), Alexy argues that a rule that is sufficiently unjust loses its status as valid law (the “Radbruch formula”). For Alexy, the claim of correctness and its correlate, the Radbruch formula, display necessary connections between law and morality, thus showing that legal positivism (which claims a separation between moral content and legal validity) is mistaken. Continue reading "Alexy’s Anti-Positivism"

The Growing Case for Geographical Indications?

Daniel Gervais’s recent article in the Houston Law Review examines the revision of the 1958 Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (Lisbon Agreement) that took place at a Diplomatic Conference held in Geneva under the auspices of the World Intellectual Property Organization (WIPO) in May 2015. The Geneva Act of the Lisbon Agreement on Appellation of Origin and Geographical Indications (Geneva Act) was finalized and opened for signatures in May 2015. As it is reflected in its title, the adoption of the Geneva Act of the Lisbon Agreement had extended the scope of protection—previously limited to appellations of origin (AO) in the Lisbon Agreement—to include also geographical indications (GIs), which are defined along the lines of the definition of GIs in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

I enjoyed reading this article, which certainly represents one of the most comprehensive reviews of the May 2015 Diplomatic Conference and the language of the Geneva Act of the Lisbon Agreement written to date by one of the most distinguished experts in the field. Most significantly for scholars and those interested in the topic, Professor Gervais offers a candid review of the background leading to and the meetings that took place at the Diplomatic Conference in Geneva. In this respect, the core message of the article is that WIPO Member States—in particular common law countries on one side and civil law countries on the other side—may have missed an important opportunity to find a much needed compromise on the issue, and finally reconcile the differences on the normative basis for the protection of GIs, including the protection of AOs for the countries members of the 1958 Lisbon Agreement, that have historically characterized the debate in this area. Continue reading "The Growing Case for Geographical Indications?"

Honoring Decedents’ Wishes—Non-Probate Devices Included

Melanie B. Leslie and Stewart E. Sterk, Revisiting the Revolution: Reintegrating the Wealth Transmission System, 56 B.C. L. Rev. 61 (2015).

Two years ago, my friend Myra1 died of cancer. She was survived by her husband Scott and their six-year old daughter Isla, as well as her parents, siblings, and many nieces and nephews. As Scott tried to make sense of his wife’s death, he was somewhat comforted by the knowledge that her pension and life insurance would cover the mortgage and keep their daughter in the only school she had ever known—the school where her mother had taught kindergarten.

Scott’s comfort was short-lived. Although Myra did have a pension and life insurance, neither Scott nor their daughter were the beneficiaries. When Myra began working as a school teacher many years ago, she designated her mother and only nephew at the time as the beneficiaries of her life insurance and state pension. Years later, she married Scott and had a daughter together, but never updated her beneficiary designations. She simply forgot. But she also believed that because she did not have a will, Scott would inherit everything she owned and use it to take care of their daughter. She was wrong. Although Scott inherited her very modest intestate estate, her pension and life insurance benefits went to her mother and oldest nephew instead of Scott—her intended beneficiary and intestate heir.2 The family was torn apart and Isla has had almost no contact with her maternal relatives since her mother’s death.

In their article, Revisiting the Revolution: Reintegrating the Wealth Transmission System, Professors Melanie B. Leslie and Stewart E. Sterk illustrate the law’s failure to address the problems created by the proliferation of non-probate instruments. This failure has deprived intended beneficiaries, like Scott, of assets that the decedent intended them to take and has also enabled wrongful takers, including former spouses, to receive assets that the decedent clearly did not want them to have. Continue reading "Honoring Decedents’ Wishes—Non-Probate Devices Included"

Is it Time to Overrule the Trademark Classification Scheme?

Jake Linford, Are Trademarks Ever Fanciful?, 105 Geo. L.J. (forthcoming), available at SSRN.

Trademark law protects distinctive marks: ones that identify the source of goods or services and distinguish them from others in the marketplace. But how should courts determine whether consumers view a mark as distinctive? In an attempt to provide some analytical rigor to this essential question, courts have developed a complicated two-prong test: they look to both “inherent distinctiveness” (i.e., linguistic uniqueness) and “acquired distinctiveness” (i.e., whether consumers have come to see the mark as distinctive of source). Inherent distinctiveness for word marks is based on the so-called Abercrombie spectrum (named after the 1976 2d Cir. case that most famously articulated it), which classifies marks from most to least distinctive as fanciful (KODAK cameras), arbitrary (APPLE computers), suggestive (COPPERTONE suntan lotion), descriptive (AMERICAN airlines), or generic (“apple” for apples). Marks like AMERICAN can become strong, protectable marks only by developing “acquired distinctiveness”; marks like COPPERTONE and APPLE are presumed to be protectable at birth; and coined marks like KODAK are the strongest of all.

As Barton Beebe notes in his casebook, Abercrombie‘s “influence on U.S. and even foreign trademark law cannot be overstated.” But Abercrombie‘s foundation has been slowly crumbling. For example, in a 2009 study, Thomas Lee and colleagues found that consumers are far more influenced by how and where a mark is placed on a box than by where the mark falls on the Abercrombie spectrum. Rebecca Tushnet has explained that Abercrombie “lacks empirical foundation” and is out of step with basic marketing knowledge, such as that an ostensibly fanciful mark like VIAGRA is already imbued with “suggestions of virility, viability, and Niagara Falls (a classic sexual image).” And now, in an impressive trifecta of recent articles, Jake Linford has further dismantled the key theoretical assumptions underlying the Abercrombie classification scheme for word marks. Continue reading "Is it Time to Overrule the Trademark Classification Scheme?"

A Brave and Honest Examination of the Complexity of a Feminist Defence Ethos

Abbe Smith, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, 53 Am. Crim. L. Rev. (forthcoming 2016).

Reading the work of those writing from a different perspective has been productive to the development of my own thinking. Abbe Smith’s forthcoming article, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, is no exception. Like her other scholarship, Representing Rapists is impeccably written, thoughtful, and well reasoned. What makes this work exceptional is its brutal honesty. With its steadfast transparency and willing self-reflection, the article is downright brave.

Abbe Smith, a well known legal ethicist and criminal lawyer, has committed much of her professional attention to theorizing and defending the need for unmitigated zeal in the representation of the criminally accused – including, of course, those accused of sexual offences. With a view to better protecting sexual assault complainants, I have dedicated a lot of scholarly attention in the last few years to developing feminist arguments in support of the ethical limits on defence lawyers who represent clients accused of sexual offences. Where our perspectives likely differ most is with respect to the cross-examination of sexual assault complainants. Continue reading "A Brave and Honest Examination of the Complexity of a Feminist Defence Ethos"

Context Shouldn’t be Everything: Online Libel and Evolving Standards of Liability

RonNell Anderson Jones & Lyrissa Barnett Lidsky, Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World, Va. J. Soc. Pol’y & L. (forthcoming 2016), available at SSRN.

Though it can be uplifting and life affirming to read law review articles written by people you almost always agree with, better cerebral benefits are usually obtained from reading the writings of people who challenge your ideas and force you to reconsider your views a bit. Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World by Lyrissa Barnett Lidsky and RonNell Andersen Jones, forthcoming in the Virginia Journal of Social Policy and the Law, is an engaging article that taught me a lot about the state of online defamation litigation.

Both co-authors tend to be more libertarian about the First Amendment than I am, so I always learn a lot from reading their scholarship. I also appreciate their clear and accessible writing. The older I become, the less patience I have for tangled prose, poor organization and conclusions so thick with ambiguity you have to eat them with a fork. Though the previous sentence reflects my exercise of the opinion privilege, the bad writers responsible will remain unnamed, due to the actual malice that infuses those words. (A good companion piece to this excellent article is The Death of Slander by Leslie Yalof Garfield.) Continue reading "Context Shouldn’t be Everything: Online Libel and Evolving Standards of Liability"

Bringing Values Back

Cecilia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. 101 (2015).

To build coalitions on controversial issues where worldviews collide, you have to search for common or at least less contentious ground. Disagree on the rights and wrongs of the death penalty? Rather than moral head-butting over abolitionist legislation, let’s talk instead about the millions of extra taxpayer dollars spent on trying to attain capital sentences that may never be carried out. Disagree on whether mass incarceration is a moral and humanitarian crisis or sound safety protection? Rather than shouting past each other, let’s talk instead about a common denominator of concerns over the crippling costs to taxpayers of paying for overstuffed prisons. Money talk may bridge impasses and offer a seemingly more neutral way out of the morass of competing worldviews.

Similarly, now that there is a historic convergence of interests around decarceration, concerns over the perils of releasing prisoners and recidivism risks are addressed by the promise of scientific selection. Evidence-based is a hot buzzword in everything from medicine to corrections. The appeal and authority of the notion of evidence-based practices is the promise of an objective rigorously evaluated foundation to justify decisions. Evidence-based corrections reassures communities and the nation that risks will be managed scientifically and costs and benefits meticulously balanced.

Cecilia Klingele’s new article offers an excellent guide to the proliferation of evidence-based practices in the correctional context. She argues that while many evidence-based approaches aim to offer smarter alternatives to mass incarceration and reinvigorate rehabilitationism, the practices may also perpetuate and extend a culture of control. Most intriguingly, Klingele calls for a return to values and normativity. Continue reading "Bringing Values Back"

Process Failure on the Road to Obergefell

Josh Blackman and Howard M. Wasserman, The Process of Marriage Equality, 43 Hastings Const. L.Q. 243 (2016), available at SSRN.

In The Process of Marriage Equality, Josh Blackman and Howard Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.

The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it. Continue reading "Process Failure on the Road to Obergefell"