Factoids, Alternative Facts, and the Truth

Urska Velikonja, Are SEC’s Administrative Law Judges Biased? An Empirical Investigation, 92 Wash. L.Rev. (forthcoming), available at SSRN.

When President Trump declares that he had the largest electoral college victory by a Republican since President Reagan, or that but for the 3 to 5 million illegal votes he would have won the popular vote, or that he had the largest inauguration crowd ever, everyone has come to learn that these “alternative facts” are not to be trusted. But when the Wall Street Journal publishes articles purporting to show that securities defendants are considerably more likely to lose when the Securities and Exchange Commission (SEC) sues them in administrative proceedings than when it sues them in court, because of the SEC’s “home-court” advantage before its ALJs, people take it seriously. So seriously indeed that the media, scholars, and even judges cite to the articles as established fact. But it’s not, and we have Professor Urska Velikonja to thank for establishing that.

To begin, while the brouhaha occasioned by the Journal articles has been centered around the SEC, and largely its enforcement efforts under the now controversial Dodd-Frank Act, the underlying thesis – that defendants do not get justice in administrative proceedings before ALJs, because those ALJs are biased in favor of their employer – would apply government-wide, not just to the SEC. And if given credence, this thesis would undermine what has been an essential aspect of administrative law for more than a century – administrative enforcement subject to judicial review as an alternative to executive actions in court for judicial enforcement. In other words, the stakes are high, and the truth, not factoids, is critical. Continue reading "Factoids, Alternative Facts, and the Truth"

A New Approach to Labor Law in States & Cities

Kate Andrias, The New Labor Law, 126 Yale L.J. 2 (2016).

Perhaps the greatest success story for unions and workers over the last five years is the wave of state and local ordinances that have raised minimum wages, guaranteed sick and safe time, and improved corporate scheduling practices, among other worker-friendly innovations. At the same time, though, union density has remained flat, as unions’ successes in campaigns for better working conditions have not translated into large numbers of successful union elections. Moreover, with the election of Donald Trump, further erosion of union density is likely: unions will face a hostile NLRB possibly compounded by federal labor law reform in the form of a national “right to work” law or evisceration of collective bargaining rights for federal employees. In other words, unions’ campaigns to improve working conditions have been wildly successful so far – they just haven’t led to more enterprise-based bargaining, as contemplated by the Wagner model of labor law.

Where does this leave unions? The pessimistic story is that private employers – aided by an anticipated spate of favorable NLRB decisions – will continue to rebuff union drives, Republicans will continue to weaken public sector unions in states they control and in the federal government, and the Supreme Court will eliminate mandatory dues or fees in public sector unions nationwide. And it goes nearly without saying that prospects for creating conditions in which unions could thrive – for example, by passing legislation to facilitate sectoral-level bargaining – went from “very unlikely” to “completely DOA” with the 2016 election. But Kate Andrias develops a more optimistic story in her pathbreaking article, The New Labor Law. She focuses with precision on exactly how unions have managed to achieve their recent successes, revealing that, in a sense, sectoral and regional bargaining are actually already here, and they can be nurtured and propelled at the state level. Continue reading "A New Approach to Labor Law in States & Cities"

Parentage by Presumed Consent

Paula A. Monopoli, Inheritance Law and the Marital Presumption After Obergefell, 8 Estate Planning & Community Prop. L.J. 437 (2016).

The marital presumption always elicits a lively discussion in a Family Law or Estates & Trusts course. But marriage equality for same-sex couples raises a new question: If a child born to a married woman is presumed to be her husband’s child, must the law also presume that a child born to a woman in a same-sex marriage is her wife’s child? Professor Paula A. Monopoli answers this question in the affirmative in her article Inheritance Law and the Marital Presumption After Obergefell and specifically addresses the role of the presumption in the context of inheritance law.

Courts confronted with the claim that marriage equality requires the extension of the marital presumption to same-sex couples have reached different conclusions. Professor Monopoli first analyses the cases that have refused to extend the marital presumption to a female spouse who is not the genetic or birth mother of a child birthed by her wife during the marriage. She explains that these courts have focused on only one goal of the presumption—establishing a biological connection between a birth mother’s child and her husband. Consequently, these courts have concluded that the marital presumption only applies where there is a possibility that the birth mother’s spouse could be the child’s biological parent. Continue reading "Parentage by Presumed Consent"

How Important is Community to Tort Law?

Christina Carmody Tilley, Tort Law Inside Out, 126 Yale L. J. 1321 (2017).

Christina Tilley’s new article on the purpose of tort law is audacious. It boldly claims that other tort theorists have got it wrong: tort law is not primarily concerned with efficiency or morality but instead (spoiler alert!) is all about constructing community. Aligning herself with a group of scholars called the New Doctrinalists, she purports to find this overarching community-constructing purpose embedded within tort doctrine itself and in the process contends that other theories, including civil recourse theory, are really external theories (hence the title, Tort Law [From the] Inside Out). She canvasses tort cases from the colonial period to the present in an attempt to demonstrate that “community” has always played a central role in tort law, even as communities in the U.S. have undergone dramatic changes.

Christina Tilley’s article is also very creative. To prove the centrality of “community” in tort law, she conducts a “rudimentary linguistic analysis” (p.1340) of the digital version of the Restatement (Second) of Torts and discovers that references to community (47 times) are more plentiful than utility (34), efficiency (3), morality (24), or justice (3). To unpack the meaning of “community” most relevant to tort law, she draws upon classic works in sociology and political theory to make intriguing distinctions between sociological and political communities and closed versus open communities. And she peppers her article with examples of contemporary controversies (parents opposed to vaccination, football concussion injuries, texting while driving) where outcomes in tort cases are likely to differ, depending on which community has its say. The sheer breadth and sophistication of the article gives readers much to admire and much to contest. At the end of 80 pages, I was not entirely persuaded, but I suspect that Tilley’s paean to community will have real staying power. Continue reading "How Important is Community to Tort Law?"

Rethinking Judicial Independence

Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. (forthcoming 2018), available at SSRN.

It is an extraordinary time when the following sentence—“it is hard to underestimate the importance of [X]”—has a plethora of topics all credibly vying for the position of “X.” Appreciating the competition, one would be hard-pressed not to include the independence of the judiciary as a prime candidate. When the eventual President calls into question the impartiality of a judge based on the judge’s “heritage” or when a court’s ruling on the administration’s travel ban might not be heeded, at least two conclusions can be drawn. First, the independence of the judiciary is presently being tested. Second, the independence of the judiciary may well be needed more than ever. Against such a backdrop, it is vital for current scholarship to provide a way to think through and assess that independence.

Enter Tara Leigh Grove’s thoughtful new article, The Origins (and Fragility) of Judicial Independence.

Drawing in part from her own (excellent) past work, Grove undertakes a significant examination of the independence of the federal judiciary. She traces the historical arcs of several key contestations between the judicial branch and one of its sibling branches, including the failure to comply with a court order, the potential removal of a judicial officer outside the impeachment process, and court packing. Though these contestations have received scholarly attention before, Grove brings them together in a new way. In so doing, she provides a persuasive account of how these various attempts to curb the courts were not only not verboten, but were embraced in the early days of the judiciary—and how political actors ultimately reversed their course. Continue reading "Rethinking Judicial Independence"

Do Taxes Motivate Corporate Managers?

Lily Batchelder, Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing (Feb. 5, 2017), available at SSRN.

Tax scholarship is interdisciplinary. To evaluate tax policy it helps to know at least a little about economics, a little about philosophy, something about budget processes, and a lot about the dizzying creativity of the marketplace in exploiting loopholes and facilitating tax-advantaged transactions. In her recent article Accounting for Behavioral Considerations in Business Tax Reform: The Case of Expensing, Lily Batchelder shows us that we must add financial accounting and firm (and corporate managers’) behavioral considerations to the mix.

The article evaluates which of three policies, adopted on a revenue neutral basis to replace our current regime of accelerated depreciation, would cause the largest increase in new investment by the corporate sector. The three policies are: expensing of new investments combined with higher statutory corporate rates; lower statutory rates combined with more gradual and economically accurate economic depreciation; and an investment tax credit combined with economic depreciation. Continue reading "Do Taxes Motivate Corporate Managers?"

Zoning for Dollars and Drones?

Troy A. Rule, Drone Zoning, 95 N.C. L. Rev. 133 (2016), available at SSRN.

My family was enjoying a sunny Southern California day in our new expansive backyard with a sparkling pool and secluded privacy when, all of a sudden, a drone hovered overhead. It appeared to be watching and taunting us as one of my sons-in-law made a lewd gesture skyward and we all yelled at it to go away.

I’m not a gun owner, but the feeling of having no control over the invasion of my property made me appreciate how someone (such as my older brother who does own guns) might feel compelled to shoot down the unmanned aircraft. How can such a trespass be allowed? As a property professor, the concept of owning the air rights above my property in addition to my surface rights seems to be debatably sacrosanct – cujus est solum ejus usque ad coelum – other than as limited by federal aviation requirements or other police power necessities. Continue reading "Zoning for Dollars and Drones?"

Ordinary Politics, Extraordinary Results: A Definitive History of the Framing of the United States Constitution

Michael Klarman’s The Framers’ Coup: The Making of the United States Constitution is a marvel. It’s an 850-page tome that draws us in even though we all know what happens in the end. Indeed, for most readers, the broad outlines of its narrative are ones that we’ve heard many times: in grade school, again in high school, perhaps in college, and, for a lucky few, once again in graduate school. The book’s seven chronological chapters tell our nation’s origin story: the flaws of the Articles of Confederation; the politics of the pre-constitutional period; the Constitutional Convention in Philadelphia; the debate over the constitutional status of slavery; the hard-fought political battles between Federalists and Antifederalists at the state ratifying conventions; ratification itself; and the drafting and adoption of the Bill of Rights.

Yet Klarman manages to give us a story that demands reading despite its familiarity. There are three reasons why The Framers’ Coup succeeds despite covering a subject that doesn’t lack for historical attention. First, the narrative he relates is both exhaustive and sparkling. It is encyclopedic without being an encyclopedia. The story moves along briskly because Klarman’s prose is simple and propulsive. Yet any fact that a reader would like to know about the framing and ratification of the Constitution is in here. We get the comforting reassurance of hearing well-told versions of stories we already know, such as the famous large state-small state compromise over representation in Congress. But Klarman also highlights the importance of issues that have slipped out of the traditional narrative. Only an expert in eighteenth-century political history would know of the profound effect that John Jay’s failed yearlong negotiations with the Spanish over navigation rights on the Mississippi had on the deliberations at the Philadelphia and subsequent ratifying conventions. (Klarman convincingly argues that Jay’s attempt to bargain away these rights in exchange for a favorable commercial treaty with Spain did more to engender southern fears about a powerful, northern-dominated federal government than any other issue, slavery included.) Continue reading "Ordinary Politics, Extraordinary Results: A Definitive History of the Framing of the United States Constitution"

An Imperial Court in a Post-Colonial Context

In this age of Brexit and the existential threats facing the United Kingdom, I find myself drawn to literature addressing the legacy of the British Empire. And in their new article, Constitutional Comparisons by A Supranational Court in Flux: The Privy Council And Caribbean Bills of Rights, Tracy Robinson and Arif Bulkan analyze a vestigial British imperial court, the Judicial Committee of the Privy Council (JCPC), in a post-colonial context. Law professors at the University of the West Indies, the authors examine the JCPC’s approach to constitutional interpretation through detailed analysis of its cases addressing Caribbean bills of rights. The article succeeds in highlighting significant questions about the JCPC’s legitimacy and function and provides insight into the very serious challenges presented by judging from a distance in a changing jurisdictional landscape.

The Judicial Committee of the Privy Council is a relic of the British colonial empire. During the imperial period, it evolved into the final court of appeal for roughly one quarter of the world’s population. Now, it hears appeals from a tiny number of former colonies, current UK territories, and Crown dependencies. The Anglophone Caribbean is at the core of the JCPC’s workload: In addition to the six overseas territories in the region, eight of the twelve independent Caribbean states send appeals to the JCPC, having retained its services following decolonization. Yet, rather than acting as an individualized apex court to the numerous intermediate courts over which it has jurisdiction, the JCPC instead has developed into a transnational or supranational court; its binding precedent can be applied across national jurisdictions. Of the 500 or so “Privy Counsellors” (the British cabinet members, politicians, clergymen, etc.) that advise the Monarch as members of the Privy Council, the Judicial Committee is staffed by a judicial subset comprising justices of the UK Supreme Court as well as judges of the various courts of appeal in England and Wales, Scotland, and Northern Ireland. Judges from some Commonwealth countries are eligible to sit on the JCPC, but only a few Caribbean judges have been appointed as Privy Counsellors, and those who were appointed were rarely empaneled on JCPC Boards (the groups of three or five judges that hear cases). Continue reading "An Imperial Court in a Post-Colonial Context"

Philosophy of Language and Legal Interpretation

Brian G. Slocum, Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning, in The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (Mouton Series of Pragmatics, forthcoming 2017), available at SSRN.

Law is pervasively interested in the proper understanding and application of texts: contracts, wills, trusts, agency regulations, statutes, constitutional provisions, etc.  Legal interpretation is obviously central to legal practice, and it is not surprising that legal scholars would come to look to literary interpretation and philosophy of language for insight. The discussion of literary interpretation, and what lawyers, legal scholars, and judges might learn from it, has been one of the themes of the Law and Literature movement. The recourse to philosophy of language has been slower and less well publicized; however, there is now a growing literature applying philosophy of language to problems in law (e.g., Alessandro Capone & Francesca Poggi (eds.), Pragmatics and Law (Springer, 2016); Andrei Marmor & Scott Soames (eds.), Philosophical Foundations of Language in the Law (Oxford, 2011)).

Brian Slocum is one of the most important scholars working at the intersection of legal interpretation and philosophy of language, as exemplified by his recent book, Ordinary Meaning (University of Chicago, 2015). In that book, Slocum contrasted one of judges’ favorite touchstones when interpreting documents, “ordinary meaning,” with the idea of “communicative meaning.” In the present article, Pragmatics and Legal Texts, Slocum offers a parallel contrast: between “literal meaning” and “communicative meaning.” To understand the “literal meaning” of a text or statute, one need only understand the meanings of each constituent term and how they fit together grammatically and logically to express a proposition. This process is meant to be independent of any considerations of the context of utterance. The article defines “communicative meaning” differently, as “what an appropriate hearer would most reasonably take a speaker to be trying to convey in employing a given verbal vehicle in the given communicative-context.” (P. 2, footnote omitted.) This meaning can differ from the literal meaning because communication is a cooperative activity, which presupposes several further norms that can affect the communicative meaning of a statute or text in the context of utterance. Continue reading "Philosophy of Language and Legal Interpretation"