Jotwell http://jotwell.com The Journal of Things We Like (Lots) Fri, 03 Jul 2015 10:30:09 +0000 en-US hourly 1 The Truth is Not Enough to Set Us Free http://worklaw.jotwell.com/the-truth-is-not-enough-to-set-us-free/ http://worklaw.jotwell.com/the-truth-is-not-enough-to-set-us-free/#comments Fri, 03 Jul 2015 10:30:09 +0000 http://worklaw.jotwell.com/?p=795 Marcia L. McCormick

Legal scholars in a wide range of areas have used now well-settled developments in cognitive psychology to argue for doctrinal changes in the definition of actionable discrimination. Implicit biases have been shown to cause discrimination against minorities and women, yet the law has developed to penalize only fully self-conscious race and sex-based decisions. Legal scholars and many lawyers’ organizations [...]

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Erik J. Girvan, On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, (2015), available at SSRN.

Legal scholars in a wide range of areas have used now well-settled developments in cognitive psychology to argue for doctrinal changes in the definition of actionable discrimination. Implicit biases have been shown to cause discrimination against minorities and women, yet the law has developed to penalize only fully self-conscious race and sex-based decisions. Legal scholars and many lawyers’ organizations have enthusiastically embraced the social science that demonstrates people act on biases when they do not always self-consciously realize it, and have engaged in massive educational efforts with the idea that education will change people’s views of what discrimination is and their behaviors that perpetuate it. But changes in legal doctrine have not followed.

In On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, Erik Girvan draws on jurisprudential and psychological insights to explain why that is so, and he pledges to offer a path towards future research that will more likely lead to doctrinal change. In short the efforts have failed because scholars use classical legalist jurisprudence instead of legal realism and because scholars are victims of naïve realism. The classical legalist jurisprudential model fails to recognize the force of extra-legal influence on judges’ decision-making as explained by legal realism. And naïve realism is a social psychological theory of how people behave when they learn others do not share their beliefs. Naïve realists assume that education alone will change the doctrine. Continue reading "The Truth is Not Enough to Set Us Free"

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What’s Missing in New Zealand? http://torts.jotwell.com/whats-missing-in-new-zealand/ http://torts.jotwell.com/whats-missing-in-new-zealand/#comments Wed, 01 Jul 2015 10:30:54 +0000 http://torts.jotwell.com/?p=464 Scott Hershovitz

“What’s missing in New Zealand?” That’s the question David Enoch poses in his thought-provoking essay, Tort Liability and Taking Responsibility. As every tort scholar knows, New Zealand has abandoned tort law, at least for injuries caused by accidents. Instead of filing a tort suit, a person injured in an accident files a claim with the Accident Compensation Corporation, which quickly [...]

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David Enoch, Tort Liability and Taking Responsibility in Philosophical Foundations of the Law of Torts (John Oberdiek ed., 2014).

“What’s missing in New Zealand?” That’s the question David Enoch poses in his thought-provoking essay, Tort Liability and Taking Responsibility. As every tort scholar knows, New Zealand has abandoned tort law, at least for injuries caused by accidents. Instead of filing a tort suit, a person injured in an accident files a claim with the Accident Compensation Corporation, which quickly determines whether she suffered a qualifying injury and, if so, provides compensation for it. The money paid out is funded through levies on risk-generating activities. So the New Zealand scheme provides compensation and (at least some) deterrence. It also puts the costs of accidents on the people who risk causing them. And it does all that at a lower cost than maintaining a system of private lawsuits, like tort. That sounds pretty good to Enoch—so good, in fact, that he wonders what is to be said for tort law in face of the New Zealand alternative.

Perhaps there is nothing to be said on behalf of tort. That’s what Enoch wants us to ponder. But he offers a tentative suggestion about what’s missing in New Zealand, and a rather surprising one at that. “What’s missing in New Zealand,” he says, “is the tortfeasor taking responsibility for her actions.” (P. 252) Now, we should pause here to acknowledge how odd that sounds. Many tortfeasors never take responsibility for their actions; they contest liability to the bitter end. Tort cannot ensure that tortfeasors take responsibility. What it can do, and does do, is assign responsibility, whether or not tortfeasors wish to take it. Continue reading "What’s Missing in New Zealand?"

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Exploring the Expressive Dimension of Inheritance Law http://trustest.jotwell.com/exploring-the-expressive-dimension-of-inheritance-law/ http://trustest.jotwell.com/exploring-the-expressive-dimension-of-inheritance-law/#comments Tue, 30 Jun 2015 10:30:04 +0000 http://trustest.jotwell.com/?p=966 Paula Monopoli

We often get so caught up in the nooks and crannies of small corners of the doctrinal universe, examining tiny subsections of the Uniform Probate Code or the Uniform Trust Code with microscopic scrutiny, that we often forget about the big picture in our field. Deborah Gordon takes us back to that macro level in her thoughtful article, Letters Non-Testamentary. Like Daphna Hacker’s Soulless Wills, 35 Law [...]

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Deborah S. Gordon, Letters Non-Testamentary, 62 U. Kan. L. Rev. 585 (2014).

We often get so caught up in the nooks and crannies of small corners of the doctrinal universe, examining tiny subsections of the Uniform Probate Code or the Uniform Trust Code with microscopic scrutiny, that we often forget about the big picture in our field. Deborah Gordon takes us back to that macro level in her thoughtful article, Letters Non-Testamentary. Like Daphna Hacker’s Soulless Wills, 35 Law & Social Inquiry 957 (2010), this article reminds us about the expressive dimension of inheritance law.

Gordon’s research focuses on language, emotion and gender in inheritance law. She began this work in her previous article, Reflecting on the Language of Death, 34 Seattle U. L. Rev. 379 (2011) and her new article continues this theme. It considers the connection between letters written in anticipation of death that are not valid testamentary instruments and their impact on inheritance law as a whole. Continue reading "Exploring the Expressive Dimension of Inheritance Law"

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Equity and Efficiency in Rule Design http://tax.jotwell.com/equity-and-efficiency-in-rule-design/ http://tax.jotwell.com/equity-and-efficiency-in-rule-design/#comments Mon, 29 Jun 2015 10:30:44 +0000 http://tax.jotwell.com/?p=1864 Andrew Hayashi

Great arguments aren’t always right, but they should be bold, persuasive, and force the scholarly community to respond by testing the arguments’ logic and limitations. In recent years, there are few arguments that have been more generative of thoughtful scholarship than Kaplow and Shavell’s claim that income redistribution should be done solely through the system of [...]

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Zachary D. Liscow, Reducing Inequality on the Cheap: When Legal Rule Design Should Incorporate Equity as Well as Efficiency, 127 Yale L.J. 2478 (2014).

Great arguments aren’t always right, but they should be bold, persuasive, and force the scholarly community to respond by testing the arguments’ logic and limitations. In recent years, there are few arguments that have been more generative of thoughtful scholarship than Kaplow and Shavell’s claim that income redistribution should be done solely through the system of taxes and transfers and that legal rules should be chosen solely for their efficiency properties.1  This conclusion is instinctively repugnant to many scholars outside of the law and economics tradition, and surprising to many within it. Yet, first rank economists that they are, Kaplow and Shavell’s logic, at least under the assumptions of the model they use to make their argument, is unassailable.

But, what Kaplow and Shavell’s logic proves and what it has often been taken to prove are two very different things. Although many excellent scholars have offered incisive critiques of the Kaplow and Shavell result, Zach Liscow’s recent note in the Yale Law Journal does as fine a job as I’ve seen of both identifying the reason for this difference and arguing from within a welfarist framework that equitable considerations should apply to legal rules too. The note is admirable in its accessibility, clarity, and rigor. I would include it on the reading list for any law and economics or tax policy seminar that addressed the merits of redistribution through the tax and transfer system. Continue reading "Equity and Efficiency in Rule Design"

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Questioning Compliance with Immigration Law http://lex.jotwell.com/questioning-compliance-with-immigration-law/ http://lex.jotwell.com/questioning-compliance-with-immigration-law/#comments Fri, 26 Jun 2015 10:30:34 +0000 http://lex.jotwell.com/?p=233 Juliet Stumpf

Lives and loves and wars have been lost because of assumptions about what other people thought or did. Our immigration laws and policies often rely on popular misconceptions about why people come to the United States without authorization and what will deter them or compel them to leave. Popular ideas about unlawfully present noncitizens have shifted over time toward a view that unauthorized border crossers [...]

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Emily Ryo, Less Enforcement, More Compliance: Rethinking Unauthorized Migration, 62 UCLA L. Rev. 622 (2015).

Lives and loves and wars have been lost because of assumptions about what other people thought or did. Our immigration laws and policies often rely on popular misconceptions about why people come to the United States without authorization and what will deter them or compel them to leave. Popular ideas about unlawfully present noncitizens have shifted over time toward a view that unauthorized border crossers are criminal aliens who constitute the kind of crisis that require the combined forces of the immigration and criminal enforcement systems to regulate.

Yet without knowing what unlawfully present noncitizens actually think or believe, it’s hard to say whether those laws and policies have it right. In Less Enforcement, More Compliance, Emily Ryo has confronted this question of what unlawfully-present people think about their own presence in the U.S. by doing what seems both obvious and fraught with obstacles: she asked them. Continue reading "Questioning Compliance with Immigration Law"

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Gay Lib Goes to Court: The Marriage of Liberation and Rights http://family.jotwell.com/gay-lib-goes-to-court-the-marriage-of-liberation-and-rights/ http://family.jotwell.com/gay-lib-goes-to-court-the-marriage-of-liberation-and-rights/#comments Wed, 24 Jun 2015 10:30:27 +0000 http://family.jotwell.com/?p=454 Darren Rosenblum

Michael Boucai’s wonderfully observant history of early marriage equality struggles, Glorious Precedents: When Gay Marriage was Radical, paints a beautiful portrait of early 1970s gay life and of the gay couples who sued for the right to marry in Baker v. Nelson, Jones v. Hallahan, and Singer v. Hara.1 It enriches our understanding of the marriage equality movement in two [...]

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Michael Boucai, Glorious Precedents: When Gay Marriage was Radical, 27 Yale J.L. & Human. 101 (2015), available at SSRN.

Michael Boucai’s wonderfully observant history of early marriage equality struggles, Glorious Precedents: When Gay Marriage was Radical, paints a beautiful portrait of early 1970s gay life and of the gay couples who sued for the right to marry in Baker v. Nelson, Jones v. Hallahan, and Singer v. Hara.1 It enriches our understanding of the marriage equality movement in two ways—one retrospective and one prospective. Painstakingly combing through these first marriage equality cases, the article recovers these earlier marriage rights claims that sought to redefine the institution’s cultural and legal underpinnings and make it an agent of gay liberation. The article also looks forward to consider what this history might mean at the present moment given the distinct rhetoric and stakes of the contemporary marriage equality movement.

Rigorous method drives all great historical work. It is particularly important in work involving recent history, in which popular memory persists in a way that both aids and clouds a historical focus. Other histories of social activism, such as Serena Mayeri’s work,2  prove that adept historians can produce clear work on relatively recent social movements. However, Boucai faced a unique challenge in gathering the necessary material after AIDS decimated many of those at the heart of this historical struggle and scattered their documents. Boucai’s heavy lifting involved extensive local research, from community newspapers and activist pamphlets to interviews. Through these sources, he unveils a colorful and gripping tale of the plaintiffs in his three cases and how their political, sexual, and affective lives linked with them. Having come out a decade after this litigation, I was overjoyed to discover this history, some of which I had heard, but which has been largely absent from contemporary debates over marriage. Continue reading "Gay Lib Goes to Court: The Marriage of Liberation and Rights"

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Something’s Afoot and it’s Time to Pay Attention: Thinking About Lawyer Regulation in a New Way http://legalpro.jotwell.com/somethings-afoot-and-its-time-to-pay-attention-thinking-about-lawyer-regulation-in-a-new-way/ http://legalpro.jotwell.com/somethings-afoot-and-its-time-to-pay-attention-thinking-about-lawyer-regulation-in-a-new-way/#comments Tue, 23 Jun 2015 10:30:35 +0000 http://legalpro.jotwell.com/?p=800 Laurel Terry

We all know about tipping points…when something that previously seemed rare or unlikely acquires enough weight or momentum that the balance or status quo changes. As I read Professor Andy Perlman’s article called “Towards the Law of Legal Services” it occurred to me that we may be getting very close to a tipping point in the United States with [...]

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Andrew M. Perlman, Towards the Law of Legal Services, Suffolk University Law School Research Paper No. 15-5 (2015), available at SSRN.

We all know about tipping points…when something that previously seemed rare or unlikely acquires enough weight or momentum that the balance or status quo changes. As I read Professor Andy Perlman’s article called “Towards the Law of Legal Services” it occurred to me that we may be getting very close to a tipping point in the United States with respect to the issue of lawyer regulation.

Professor Perlman’s article argues that the time has come to “reimagine” our lawyer-based regulatory framework. He asserts that instead of focusing on the “law of lawyering” – which is how people in our field often refer to what we study – we need to develop a broader “law of legal services” that would authorize, but appropriately regulate, the delivery of more legal and law-related assistance by people who do not have a J.D. degree. He argues that reimagining regulation in this fashion will spur innovation and expand access to justice. Continue reading "Something’s Afoot and it’s Time to Pay Attention: Thinking About Lawyer Regulation in a New Way"

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To Enumerate or Not To Enumerate: A Theory of Congressional “Great Powers” http://legalhist.jotwell.com/to-enumerate-or-not-to-enumerate-a-theory-of-congressional-great-powers/ http://legalhist.jotwell.com/to-enumerate-or-not-to-enumerate-a-theory-of-congressional-great-powers/#comments Mon, 22 Jun 2015 12:05:14 +0000 http://legalhist.jotwell.com/?p=405 Christina Duffy Ponsa

I have a soft spot for any argument that tends to show the relevance of long-settled constitutional controversies over territorial annexation to hotly debated current events. Even so, I wouldn’t write about this piece if I didn’t think it was well worth reading regardless of how much one cares about the United States’ imperial adventures of over a century ago—or about any given headline today, for that matter. [...]

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Daniel Rice, Territorial Annexation as a “Great Power,” 64 Duke L.J. 717 (2015).

I have a soft spot for any argument that tends to show the relevance of long-settled constitutional controversies over territorial annexation to hotly debated current events. Even so, I wouldn’t write about this piece if I didn’t think it was well worth reading regardless of how much one cares about the United States’ imperial adventures of over a century ago—or about any given headline today, for that matter. The piece is a student Note by Daniel Rice in a recent issue of the Duke Law Review entitled Territorial Annexation as a “Great Power.” The annexations in question are those of Texas in 1845 and Hawaii in 1898—statutory annexations accomplished by Congressional joint resolution instead of by treaty. And the current event is Supreme Court’s decision in NFIB v. Sebelius in 2012. Rice’s Note makes a convincing case that the basic significance of the healthcare decision cannot be properly understood without a solid grasp of the debates around the constitutionality of Texas’ and Hawaii’s annexation. As Rice describes the evolution of doctrine on Congressional power and the Necessary and Proper Clause from McCulloch v. Maryland to NFIB v. Sebelius, it simply isn’t possible to get from the former to the latter, and fully understand where we’ve been and where we’re headed, without stopping to consider nineteenth-century territorial expansion.

Rice’s Note contributes to the debate on Chief Justice Roberts’ claim in NFIB v. Sebelius that, as Rice paraphrases it, “some powers are too important to be exercised merely through implication, even if they might be the most convenient means imaginable for executing Congress’ enumerated powers. These so-called ‘great powers’ are off-limits to Congress unless the Constitution specifically mentions them.” (P. 718.) Applying what Rice describes as this “conceptual bombshell” to the Affordable Care Act’s minimum-coverage provision, Roberts explained that the power to require individuals either to purchase health care or pay a fine—“the ability to create commerce, rather than regulate preexisting commerce” (again in Rice’s words)—qualifies as a “great power,” that is, a power “incapable of being claimed inferentially.” (P 720.) Continue reading "To Enumerate or Not To Enumerate: A Theory of Congressional “Great Powers”"

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Roll Over, De Tocqueville http://juris.jotwell.com/roll-over-de-tocqueville/ http://juris.jotwell.com/roll-over-de-tocqueville/#comments Fri, 19 Jun 2015 10:30:14 +0000 http://juris.jotwell.com/?p=1039 W.A. Edmundson

“Money is the mother’s milk of politics,” said California pol Jesse Unruh, way back in the 1960s. Benjamin Franklin, in the 1790s, could not have said it more memorably; but wouldn’t it shock us if it had been Franklin, and not Unruh (or Karl Marx) who first said it? The certainty of death and taxes is a hard [...]

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Martin Gilens and Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Perspectives on Politics 564 (2014).

“Money is the mother’s milk of politics,” said California pol Jesse Unruh, way back in the 1960s. Benjamin Franklin, in the 1790s, could not have said it more memorably; but wouldn’t it shock us if it had been Franklin, and not Unruh (or Karl Marx) who first said it? The certainty of death and taxes is a hard lesson, but it doesn’t prepare us for the bitter thought that politics is helpless before the power of money.

Students of American democracy have divided on the point. Martin Gilens and Benjamin I. Page assign the principal theories of American politics to four schools: Majoritarian Electoral Democracy, Economic-elite Domination, Majoritarian Pluralism, and Biased Pluralism. Majoritarian Electoral Democracy holds that policy outcomes are determined largely by the views of average citizens. Economic-elite Domination holds that policy outcomes are largely determined by the views of the wealthiest citizens. The two other types of theory focus not on individual voters, but on interest groups. Majoritarian pluralism is the view that policy outcomes are mainly responsive to pressures from mass-based interest groups. Biased pluralism maintains that pressure from business-orientated interest groups is what mainly determines state policy. Continue reading "Roll Over, De Tocqueville"

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Estimating the Value of the Public Domain http://ip.jotwell.com/estimating-the-value-of-the-public-domain/ http://ip.jotwell.com/estimating-the-value-of-the-public-domain/#comments Wed, 17 Jun 2015 10:30:39 +0000 http://ip.jotwell.com/?p=732 Chris Buccafusco

By now, most Jotwell readers will be familiar with the terrific empirical research that Paul Heald has been doing on the public domain. Now, Paul has teamed up with Kristopher Erickson and Martin Kretschmer, scholars at the University of Glasgow and the CREATe centre (which stands for Creativity, Regulation, [...]

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Paul J. Heald, Kris Erickson and Martin Kretschmer, The Valuation of Unprotected Works: A Case Study of Public Domain Photographs on Wikipedia, 28 Harvard J.L. & Tech. (forthcoming, 2015), available at SSRN.

By now, most Jotwell readers will be familiar with the terrific empirical research that Paul Heald has been doing on the public domain. Now, Paul has teamed up with Kristopher Erickson and Martin Kretschmer, scholars at the University of Glasgow and the CREATe centre (which stands for Creativity, Regulation, Enterprise, and Technology). CREATe is a publicly funded multi-disciplinary program that provides research support to produce evidence-based assessments of IP policies—something I think we can all agree that we like lots.

Heald, Erikson, and Kretschmer (HEK) have recently posted a new paper that presents a section from CREATe’s larger empirical project on copyright and the value of the public domain. I strongly recommend the entire report, which includes two separate empirical studies, but will focus my comments on the shorter paper.

The authors begin by noting that copyright owners have become adept at offering quantitative assessments of the economic value that copyright industries produce. Although there are numerous estimates of the value of copyright law, there are, however, very few attempts to measure the economic value of the public domain. HEK’s paper begins to balance the ledger by estimating the value of a robust public domain for creative reuse.

To do so, the authors modify and extend a technique that was recently introduced by Abishek Nagaraj at MIT. The basic idea is to analyze Wikipedia pages for the use of photographs where the availability of photographs is affected by the public domain. HEK study the use of photographs of successful literary authors on their Wikipedia pages. Continue reading "Estimating the Value of the Public Domain"

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Breaking Cartels to Stymie the Reproduction of Racism and Breaking them in Time http://equality.jotwell.com/breaking-cartels-to-stymie-the-reproduction-of-racism-and-breaking-them-in-time/ http://equality.jotwell.com/breaking-cartels-to-stymie-the-reproduction-of-racism-and-breaking-them-in-time/#comments Tue, 16 Jun 2015 10:30:17 +0000 http://equality.jotwell.com/?p=594 Angela Mae Kupenda

Daria Roithmayr’s book, Reproducing Racism: How Everyday Choices Lock in White Advantage, situates the reproduction of racism outside of intentionally inflicted racist acts. She argues that even if racism by individual design ceases, everyday decisions by Whites lock in the many decades’, and even centuries’, of entrenched structures of White advantage. Tracing the history of race in America especially from Jim Crow, Roithmayr illustrates how White advantage [...]

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Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock in White Advantage (2014).

Daria Roithmayr’s book, Reproducing Racism: How Everyday Choices Lock in White Advantage, situates the reproduction of racism outside of intentionally inflicted racist acts. She argues that even if racism by individual design ceases, everyday decisions by Whites lock in the many decades’, and even centuries’, of entrenched structures of White advantage. Tracing the history of race in America especially from Jim Crow, Roithmayr illustrates how White advantage was locked in through wealth accumulation protections given Whites and denied Blacks, through the real estate market practices favoring Whites, in educational policies perpetuated through a de jure then a de facto system, through the use of incarceration and its rise against Blacks soon after the end of slavery, and even in the levels of Black infant mortality.

Using antitrust theories, Rotihmayr’s work explaining the cartel like structure of White advantage can be juxtaposed against Lani Guinier’s analogously familiar book from over twenty years ago. In Guinier’s book, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (1994), Guinier discusses the many statutory protections given to those who hold less than the majority votes in corporations. Guinier argues that just as minority ownership interests are given “a turn” in corporate law, such could also protect minority racial interests in our governmental democracy. Similar to Guinier’s use of principles from corporate law, Roithmayr uses principles from antitrust law. Guinier’s book focuses more on arguing the corporate law principles as remedies. Roithmayr’s book focuses more on identifying the antitrust cartel structure and showing the way for our own creative construction of remedies to break these cartels to stymie the reproduction of racism. Continue reading "Breaking Cartels to Stymie the Reproduction of Racism and Breaking them in Time"

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