Monthly Archives: September 2016

Telling the Middle Class How to Be Middle-Class: Tax Incentives for Saving

Lisa Philipps, Registered Savings Plans and the Making of Middle Class Canada: Toward a Performative Theory of Tax Policy, 84 Fordham L. Rev. (forthcoming 2016), available at SSRN.

Analyses of tax policy are typically based on a familiar cost-benefit framework. There are important debates about which costs and benefits should be included (and which are measurable), but the standard formula is simple: (1) Describe the policy goal; (2) Present the costs and benefits of a policy that is meant to achieve that goal; and (3) Conclude that the policy is good or bad, depending on whether benefits exceed costs or vice versa.

In her important new article, Professor Lisa Philipps uses a Canadian tax policy debate to show that this approach is fundamentally misleading. Standard cost-benefit analysis—even if it is focused on inequality or other social outcomes— ignores the effect that adopting policies has on, as Philipps puts it, “the range of policy options considered thinkable.” (P. 102.) Tax policies can become embedded in the social system in a way that cannot be explained by standard cost-benefit analysis, and the resulting changes in social expectations can lead to self-defeating policy inertia. Continue reading "Telling the Middle Class How to Be Middle-Class: Tax Incentives for Saving"

Are Corporations Responsible Agents?

In The Structure of Tort Law, Revisited: The Problem of Corporate Responsibility, Benjamin Ewing, a visiting assistant professor at Duke Law School, breaks fresh ground by stitching together contemporary tort theory and recent philosophical work on responsibility. By knitting these threads together, Ewing’s fluent, sophisticated paper shows that imputing moral responsibility to artificial legal persons is an eminently plausible enterprise. The Structure of Tort Law, Revisited shows us that it makes eminently good sense to think about corporations not merely as institutions that we may manipulate to pursue valuable social objectives, but as institutions that bring responsibility upon themselves by their actions. In doing so, the paper broadens the horizons of normative non-instrumental tort theory.

As Ewing notes at the outset of his article, “moralized accounts of tort law” seem “particularly impotent” (whereas economic approaches to tort “seem especially powerful”) in tort cases in which corporate defendants are either held vicariously liable for the torts of their employees, or are themselves held directly liable for the marketing of defective products. (P. 2.) “It is obvious that tort law may affect corporations’ incentives but it is not self-evident that tort liability can be meaningfully understood as a form of moral accountability when it is imposed upon corporate rather than human persons.” (Id.) The central insight of Professor Ewing’s paper is that a particular form of responsibility— namely, “attributive responsibility”— is fundamental to accountability in both law and morals, and that corporations are attributively accountable agents. Continue reading "Are Corporations Responsible Agents?"

Does Compensation Deter Takings? New (and Surprising) Evidence

Ronit Levine-Schnur & Gideon Parchomovsky, Is the Government Fiscally Blind? An Empirical Examination of the Effect of the Compensation Requirement on Eminent Domain Exercises, 45 J. Legal Stud. (forthcoming 2016), available at Penn Law: Legal Scholarship Repository Paper 1595 (Oct. 13, 2015).

This article delves into the issue of compensation, which looms large in debates about eminent domain for two reasons. The first reason is the concern that owners may be systematically undercompensated when property is taken by eminent domain because the constitutionally mandated “fair market value” measure of compensation, articulated in United States v. Miller (U.S. 1943), does not take account of subjective losses.

The second is the presumption, especially prevalent among law and economics scholars, that the compensation requirement cures the “fiscal illusion” problem (i.e., the fact that government actors presumably ignore costs that are not reflected in their budgets). According to this view, compensation ought to deter excessive takings by forcing “takers” to internalize the financial cost of their actions. This assumption is reflected in post-Kelo v. New London (U.S. 2004) state eminent domain reforms that mandate above-market compensation for certain categories of takings. It is also offered as a justification for compensating certain categories of “regulatory takings.” Continue reading "Does Compensation Deter Takings? New (and Surprising) Evidence"

Looking Intersectionally and Seeing Structural Bias

Every day, across the criminal justice system, state and private actors wield discretion in making decisions: Is a girl standing before a police officer, prosecutor, child welfare official, or social worker a victim in need of protection or a perpetrator, in need of punishment? Does she need harsh correction or gentle, resource-rich protection? Is she a prostitute or is she a victim of trafficking? In (E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors, Priscilla Ocen presents compelling data suggesting that these discretionary decisions open a door to the exercise of implicit bias and lead to devastating outcomes, disproportionately removing Black girls from the realm of protection embodied by anti-trafficking laws and placing them squarely in the hands of the punitive mechanisms of the juvenile justice system. These facts are tremendously important but, sadly, not surprising. They only add to the wealth of information definitively establishing the disproportionate negative outcomes for Black women, men, boys, and girls in the social welfare, child welfare, criminal, and juvenile justice systems.

While the statistics are jarring, the important questions to ask are causal: Given that Black girls are disproportionately vulnerable to exploitation and disproportionately victimized, why, as a society, do we tolerate them being disproportionately punished? Why are they not, as both the data and intersectionality theory might suggest they should be, at the very center of our efforts to protect girls? Continue reading "Looking Intersectionally and Seeing Structural Bias"

How Do Lawyers’ Expertise Matter in Ordinary Litigation?

Lawyers play important roles in litigation. To scholars and law practitioners, this statement sounds almost like a truism. To be sure, if millions of people pay hefty fees to retain lawyers in litigation, then the expertise that these lawyers possess and the services that they provide must be valuable. However, which part of lawyers’ expertise makes a bigger difference in ordinary litigation? Their knowledge of the law? Their familiarity with legal procedures? The social networks and relations that they develop with others? Or the symbolic power of their licensing and professional credentials? In the scholarship on the legal profession, all these aspects of lawyers’ expertise have been investigated through case studies and ethnographic work, such as Sarat & Felstiner’s (1995) work on how divorce lawyers control and construct their clients, Herbert M. Kritzer’s (2004) analysis of contingency fee lawyers as gatekeepers of the justice system, Mather, McEwen, and Maiman’s (2001) study on the collegial community of divorce lawyers, and so on. Nevertheless, there had been little systematic effort to test the effects of lawyers’ expertise in ordinary litigation using statistical methods and meta-data, until Rebecca L. Sandefur’s 2015 article Elements of Professional Expertise in the American Sociological Review.

In this article, Sandefur distinguishes between two types of expertise, substantive and relational, following Barley’s (1996) definitions. Substantive expertise is “concerned with professions’ peculiar categories and theoretical frameworks,” including “understanding both substantive law – statutes, doctrines, legal principles, and relevant past cases – and legal procedures.” (P. 911.) By contrast, relational expertise involves understanding “how to navigate the relationships involved in getting the work done” and “the social distribution of knowledge and discretion in the actual relationships through which professional work takes place.” (P. 911.) Whereas substantive expertise is “abstract” and “principled,” relational expertise is “situated” and “contextual.” (P. 911.) Both at are work in the practice of lawyers and other professionals, though relational expertise probably plays a bigger role in the work of lawyers than that of doctors or engineers given the strong relational nature of legal work. Continue reading "How Do Lawyers’ Expertise Matter in Ordinary Litigation?"

Common Law in the Age of Arbitration

Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016).

Judge-made law is dynamic. Rules adapt to innovations in technology, trends in human behavior and markets, and nascent theories that unsettle previously entrenched approaches to a problem. Even when a rule’s basic elements are stable, the accretion of new decisions can lead to subtly different formulations, caveats, and corollaries. Observers might therefore assume that doctrine in any given field will evolve for as long as affected actors are creative and litigious.

But even litigious actors cannot instigate changes to judge-made rules if litigation cannot lead to new judicial opinions. Myriam Gilles proposes a thought experiment to illustrate this possibility in her new article. Suppose that all cases in field X were suddenly shunted to arbitration, such that courts had no further opportunity to write opinions expounding on the law of X. Further suppose that choice-of-law provisions required arbitrators to apply judge-made rules governing X and that arbitrators would not write detailed opinions explaining their decisions (or that their opinions would be inaccessible to nonparties). In this hypothetical regime, the common law of X would stagnate. Doctrine would remain on the books as a source of guidance for arbitrators addressing the idiosyncrasies of individual cases. But those idiosyncrasies would no longer be catalysts for refining the publicly articulated rules that arbitrators apply. Judge-made law would shape outcomes, yet outcomes would not reshape the law. Continue reading "Common Law in the Age of Arbitration"

Law, Legend, and Forgotten Histories of Survivance

In 2016, legal history is a capacious field – one with a catholic view of what counts as law and a willingness to find legal significance in a wide range of places. Katrina Jagodinsky’s Legal Codes and Talking Trees challenges legal historians to be even more inclusive, especially in the voices we seek to hear and the sources we mine. By pairing underused state and territorial court records with oral histories, legends, local newspaper records, and intricate genealogical research, Jagodinsky offers an all-too-rare glimpse of the experiences and perspectives of Indigenous women in the nineteenth and early twentieth centuries, as they navigated formal legal systems that were not their own.

Legal Codes and Talking Trees centers on the legal encounters of six Indigenous women in “borderlands” communities, spaces marked by competing territorial claims, overlapping legal jurisdictions, and mixed populations. Three of the cases come from the Sonoran Southwest (encompassing parts of present-day Arizona, California, and Northwest Mexico) and three from the Puget Sound region (including parts of present-day Washington and British Columbia). Jagodinsky selected these two regions because of the different approaches that white settlers took to the Indigenous populations there. But when it came to Indigenous women’s “bodies, progeny, and lands,” she discovered “remarkably similar demands from [American] citizen men and women” (P. 11). Continue reading "Law, Legend, and Forgotten Histories of Survivance"

Whistling for the Dog in Affirmative Action

Reviewing Khiara Bridges, The Deserving Poor, The Undeserving Poor and Class-Based Affirmative Action, 66 Emory L.J. (forthcoming 2017), available at SSRN.

The link between race and class inequality is a hot topic. The top two anti-establishment movements of the year are Black Lives Matter and Bernie Democrats, and the relationship between them is complicated. In addition, Donald Trump has built a campaign appealing to white middle- and working-class voters by blowing the racism dog whistle. Figuring out why those voters continue to support Trump despite (or because of) his racism is the question of the hour on my Facebook feed.

Which is why I was excited to see Khiara Bridges’ latest paper on class-based affirmative action (from here on, I’ll call it “class-based AA”) pop up in my inbox. Far from the heat of the election, Bridges has written a wonderful article that explores the race-class divide among supporters of affirmative action. In this paper, Bridges argues that class-based AA enjoys widespread bipartisan support because its beneficiaries are white. More specifically, she argues that continuing support for class-based AA depends on differentiating between poor whites as people who deserve to benefit from class-based AA and undeserving poor people of color, who should not. Indeed, she concludes, support for class-based AA might well dry up if people of color were to become class-based AA’s primary beneficiaries. Continue reading "Whistling for the Dog in Affirmative Action"

The Cruel Optimism of Human Rights and Legal Justice

Cyra Choudhury

Cyra Choudhury

In her article Precarious Desires and Ungrievable Lives: Human Rights and Postcolonial Critiques of Legal Justice, Ratna Kapur argues that for the vast majority of subordinated peoples, faith in international human rights and, indeed, in law as a vehicle to achieve equality, recognition, and redress for harm has often been misplaced. For sexual subalterns in particular, liberal legal institutions and laws are part of and promulgate a heterosexist normative order that constantly refashions these precarious desires and their justice claims into conformity with that order. Kapur suggests that instead of investing our energies as activists in law, we should rethink our notions of justice by moving away from the constraints of liberal legalism to more affective and postcolonial registers.

There are three points that make this article particularly important and a welcome addition to the critical literature on international human rights. First, it asks us to question whether human rights activism and the law are the best, let alone only, mode of engagement for subordinated populations. Second, it directs our attention to that which is often lacking in law in general and international law in particular: the affective, lived experiences of the subject of rights. In particular, for LGBT people, the article makes visible the uncomfortable and cruel optimism of human rights in an already dominant heteronormative order. And it reminds of the postcolonial critique of liberalism and liberal rationality. Continue reading "The Cruel Optimism of Human Rights and Legal Justice"

Speaking from the Grave. Should Copyright Listen?

Eva E. Subotnik, Artistic Control After Death, 92 Wash. L. Rev. (forthcoming 2017), available at SSRN.

Should authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review).

Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s integration into artistic or literary culture, under the law, heirs and literary estates have the power to exercise control over the work’s continued use and dissemination. Continue reading "Speaking from the Grave. Should Copyright Listen?"

The Case for Integrating Health Care and Social Services

Elizabeth H. Bradley & Lauren A. Taylor, The American Health Care Paradox: Why Spending More is Getting Us Less (2013).

Although the U.S. spends far more per person on medical care than any other nation, the results have been less than impressive. Relative to other developed nations, the U.S. consistently performs worse on a wide range of health measures, including infant mortality, premature deaths, life expectancy, and prevalence of heart disease, diabetes, and other chronic illnesses. Many health care experts have pointed to inefficiencies in our health care system as the cause for this paradox. Bradley and Taylor identify another culprit — too little attention to the social, environmental, and behavioral factors that impact health.

The book begins with a summary of the authors’ previous research comparing spending on health care and social services among OECD countries. This research found that when spending on health care is combined with spending on social services, the U.S only ranks in the middle of OECD countries. More importantly, the U.S. is an outlier when comparing the ratio of a nation’s social to health spending, with the U.S. allocating a far greater share of its gross domestic product to health care than to social services. This suggests that the U.S. is shortchanging the social services that help people live healthier lives, including public health, housing, education, community safety, and income support. The authors’ conclusion finds support in their recently published study comparing state spending, Variation in Heath Outcomes: The Role of Spending on Social Services, Public Health, and Health Care, 2000-09, 35 Health Affairs 760 (May 2016), which found that states with a higher ratio of social to health spending had better health outcomes. Chapter 3 of the book brings the data to life by profiling three individuals who incurred significant (and expensive) health problems when their social and behavioral health needs went unmet. Continue reading "The Case for Integrating Health Care and Social Services"

Inconsistency, Marriage Equality, and Legal Change by Stealth

Cynthia Godsoe, Adopting the Gay Family, 90 Tul. L. Rev. 311 (2015).

Obergefell v. Hodges and the cases that preceded it present a perplexing paradox. On the one hand, opponents of marriage equality vigorously argued that marriage should be limited to opposite-sex couples in the interest of children, as traditional marital families offered the optimal setting for childrearing. On the other hand, most of the opponents’ home states placed foster children with LGBTQ foster parents and allowed LGBTQ individuals to adopt children. On the surface, these conflicting impulses might simply have resulted from the confusion of multiple actors and advocates at different levels of government. In the insightful hands of Cynthia Godsoe, however, these contradictions disrupt traditional narratives of marriage equality and legal reform, demonstrate the power of quiet intersectionalism and coalitions, and illustrate how diverse family structures can drive social change.

In Adopting the Gay Family, Godsoe delves into the disparate treatment of gay parenthood and gay marriage to show how adoption became a “stealth path” to marriage equality. As she explains, from the beginning, the push for gay adoption relied on a coalition of vulnerable groups. In the 1970s, unable to find homes for teenagers “with homosexual tendencies,” a few jurisdictions turned to gay and lesbian adoptive parents to take in children that the rest of society rejected. Similarly, in the 1980s, adoption agencies confronting the challenges of placing HIV-positive babies affirmatively sought LGBTQ adoptive and foster parents. Continue reading "Inconsistency, Marriage Equality, and Legal Change by Stealth"

Taking the Classroom Beyond the Building’s Walls

John Borrows, Outsider Education: Indigenous Law and Land-Based Learning, 32 Windsor Yearbook on Access to Justice (forthcoming 2016).

John Borrows is a lead actor in the cast that makes it worth being part of the play of life. He’s always thoughtful and interesting; his scholarship thick with love. And I love reading his work.

In Outsider Education he appears as himself – teasing the reader with an introductory paragraph that leaves you wondering if he’s going to make an argument for old school legal education by apprenticeship, then turning the whole thing on its head. It’s not an argument for white men training white men in book-heavy chambers over sherry; it’s a reminder that Indigenous legal education in North America prior to European arrival kicks it even more old school. Continue reading "Taking the Classroom Beyond the Building’s Walls"

Noticing, and Commenting on, Settlements

Courtney R. McVean & Justin R. Pidot, Environmental Settlements and Administrative Law, 39 Harv. Envtl. L. Rev. 191 (2015).

As a wet-behind-the-ears lawyer in the U.S. Justice Department’s Environmental Enforcement Section, I tried two cases to judgment in my first three years of practice. During fifteen years at the DOJ thereafter, almost every case I touched – including some during a brief stint as an appellate lawyer – settled. So this succinctly-titled article immediately caught my eye.

In Environmental Settlements and Administrative Law, Courtney McVean and Justin Pidot focus not on enforcement litigation but on how the federal government settles cases in which agencies are sued for allegedly violating environmental statutes. McVean (a 2014 graduate of the University of Denver Sturm College of Law) and Pidot (a former DOJ attorney who was then an Assistant Professor at Denver) consider the persistent criticism that the Executive Branch’s settlement practices make policy in ways that violate administrative law norms. Their careful analysis concludes that most environmental settlements are consistent with the procedural constraints of administrative law and that existing judicial review mechanisms are adequate to correct the occasional settlements that overreach. Continue reading "Noticing, and Commenting on, Settlements"

New App City

Nestor M. Davidson & John J. Infranca, The Sharing Economy as an Urban Phenomenon, 34 Yale L. & Pol’y Rev. 215 (2016).

It may seem odd to put this article in the category of “Cyberlaw,” since it is so thoroughly about the embodied nature of new business models usually attributed to the distributed, placeless internet. But that’s precisely the point: the internet has a materiality that is vital to its functioning, and so do specific parts of it. Regulation, too, must contend with the physical basis of online activities. Julie Cohen has often written about the situatedness of the digital self and its construction within a field of other people, institutions, and activities; Davidson and Infranca explore that situatedness by explaining why local government law is an important matter for internet theorists.

Davidson and Infranca’s article thus puts an important emphasis on the materiality of internet-coordinated activities, even if my take is ultimately more pessimistic than that of the authors. They begin by noting that

[u]nlike for earlier generations of disruptive technology, the regulatory response to these new entrants has primarily been at the municipal level. Where AT&T, Microsoft, Google, Amazon and other earlier waves of technological innovation primarily faced federal (and international) regulatory scrutiny, sharing enterprises are being shaped by zoning codes, hotel licensing regimes, taxi medallion requirements, insurance mandates, and similar distinctly local legal issues. Continue reading "New App City"

Can We Improve on the Ordeal of American Criminal Justice?

Unfair begins with a reminder that medieval methods of factfinding now mocked—“fishing a ring out of a boiling cauldron, carrying an iron straight from the fire, or being plunged into a vat of water”—were employed in their era because they were understood to be cutting-edge analytical techniques. The point, which Adam Benforado drives home with startling, embarrassing force, is that our criminal justice system is in its own dark age, relying on techniques known to be inaccurate and to lead to erroneous results.

Some critiques are familiar, such as that interrogation using the Reid Technique can lead to false confessions, that there are many incompetent defense lawyers, that police and prosecutors sometimes suppress exculpatory evidence. But their unrelenting expression, from the predictable weaknesses of criminal investigation to the established disutility of certain forms of imprisonment, leaves the reputation of the system in tatters. Unfair ends with reasonable and creative, albeit politically improbable, suggestions for reform. Continue reading "Can We Improve on the Ordeal of American Criminal Justice?"

The Vanishing Poor

It’s certainly not news that, in recent years, the Supreme Court majority has been unenthusiastic about class actions. Reinterpretations of procedural rules and standing requirements make class certification more difficult and efforts at certification more expensive. Ever-broadening interpretations of the Federal Arbitration Act also move claims out of courts and prohibit aggregation of claims in arbitration. Procedure scholars have lamented these decisions for years, as the gradual accretion of unfortunate decisions continues.

I love this essay by Myriam Gilles because it changes my focus from processes to people and shines a light on the groups whose claims disappear in the absence of class action litigation. Conceptually, I’ve talked about “negative value claims” or perhaps “consumers” and “employees,” but unconsciously saw the issue through the lens of my own class-member settlements in cases involving unauthorized foreign transaction fees and excessive e-Book prices. I failed to think through the many ways in which those SCOTUS decisions have a systemic and devastating impact on the poor and powerless. Continue reading "The Vanishing Poor"

See. Spot. Catch. Frisbee. (… or Behold the Simple Elegance of Bank Capital, Upside-Down)

Heidi Mandanis Schooner, Top-Down Bank Capital Regulation, 55 Washburn L.J. 327 (2016).

In the words of one younger and wiser colleague, “prescriptions are empty calories for law review editors.”1 Many fabulous articles uncover new histories, new facts, new frames … only to fizzle around the obligatory Part V, with its half-hearted defense of a model law or regulatory gimmick, that orphan child born of perfunctory comments in faculty workshops.

The latest article by Heidi Mandanis Schooner, based on her endowed lecture at Washburn Law School, is a rare counterexample—a stunningly simple reform idea that would literally upend the paradigm of bank capital adequacy, dispensing with some of today’s most urgent and intractable financial regulatory debates. The Washburn Law Journal symposium issue (which includes insightful commentary on Schooner’s lecture) and her spinoff testimony before the Senate Banking Committee are rich food for legal, economic, and policy thought—but are not very well-packaged, and could easily get lost in the buzz and dazzle of the fast-growing scholarly field. Continue reading "See. Spot. Catch. Frisbee. (… or Behold the Simple Elegance of Bank Capital, Upside-Down)"

A “Follow the Money” Approach to Separation of Powers

Michael Greve and Christopher C. DeMuth, Sr., Agency Finance in The Age of Executive Government, 16-25 George Mason U. L. & Econ. Research Paper Series (2016), available at SSRN.

This year has featured no shortage of excellent doctrinal pieces in constitutional law—so many that I couldn’t choose among them. This article is different: more political science than law, although it does focus on separation of powers. Many Jotwell readers may not have read it. That’s unfortunate. It deserves follow-up work by constitutional law scholars.

Agency Finance in The Age of Executive Government, by Michael Greve and Christopher DeMuth, opens up a wide agenda for constitutional scholarship premised less on doctrinal issues, and more on a series of interlacing fiscal developments that have shifted power to the executive branch. The burgeoning administrative state, the continuing shift towards executive governance, and the lack of political accountability of administrative agencies have long been academic legal literature fodder. Most of these articles explore the doctrinal and policy nuances of the dividing lines between the political branches. The courts, meanwhile, have occasionally cabined the executive with an institutionally appropriate focus on fact-specific and precedent-based analysis. But both the academy and the judiciary are fundamentally inadequate to the task of cabining the executive branch. Neither can substitute for congressional control over and channeling of executive action, the main control built into the constitutional scheme of separated federal powers. Congressional retreat has facilitated executive creep. Continue reading "A “Follow the Money” Approach to Separation of Powers"

Circuit Courts Do Strange Things with Chevron

Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 115 Mich. L. Rev. (forthcoming 2017), available at SSRN.

Kent Barnett and Chris Walker begin this fascinating article by describing the Chevron doctrine and its history. In its landmark 1984 opinion in Chevron v. NRDC, the Supreme Court announced a new, seemingly more deferential doctrine that it instructed lower courts to apply when they review agency interpretations of the statutes they administer. The Chevron opinion is one of the most cited opinions in history. It has been cited in “nearly 15,000 judicial decisions and in over 17,000 law review articles and other secondary sources.” (P. 2.)

Barnett and Walker agree with most scholars that the Supreme Court’s “choice to apply Chevron deference, as opposed to a less-deferential doctrine or no deference at all, does not seem to affect the outcome of the case.” (P. 4.) They note that the Supreme Court did not even mention Chevron in three-quarters of the cases in which it reviewed agency statutory interpretations during the twenty-two-year period immediately after it issued its opinion in Chevron. They then report the findings of their study—the largest empirical study of circuit court applications of Chevron ever undertaken. As they characterize the results of their study, what they call Chevron Regular seems quite different from Chevron Supreme. Continue reading "Circuit Courts Do Strange Things with Chevron"