By All Means Possible

Thomas Mitchell, Growing Inequality and Racial Economic Gaps, 56 How. L. J. 849 (2013).

Thomas Mitchell’s article, “Growing Inequality and Racial Economic Gaps,” argues that reforms to the technicalities through which law constitutes real estate assets and relations may provide a foundation for progressive steps towards racial equality. Published in 2012 as part of a Howard Law Journal symposium on Protest and Polarization, this article starts with a sobering account of the intensification of racialized economic inequality in the US, within a general trend of increasing economic inequality since the 1970s. The first part of the article shows these developments are largely attributable to the large and growing wealth differentials between non-Hispanic whites and the Hispanic and African American populations. By 2009, according to Mitchell, the net worth of the median non-Hispanic White household was 20 times larger that of the median Black household (as compared to the 12:1 ratio in 1988 reported in Oliver and Shapiro’s landmark study1 and 18 times larger than the net worth of the median Hispanic household). Moreover, Mitchell reports that despite their losing some wealth during the Great Recession, White non-Hispanic households in 2009 generally owned more wealth than they had “for many if not most years between 1984 and 2009” whereas Black and Hispanic households owned “less wealth … than in any year since … 1984” (P. 860).

The second part of the article traces the relationship between rising economic inequality and shrinking intergenerational economic mobility in the US. Again Mitchell synthesizes some potent data to cast doubt on conventional wisdom. It transpires that the American education system no longer enhances social mobility (if ever it did) and indeed “may well be contributing to growing income and wealth inequalities” (P. 865); that the extent of occupational mobility in the United States is no more than average amongst industrialized countries; and that the level of intergenerational income mobility is demonstrably worse than that of neighboring Canada and below the norm for industrialized countries (P. 867). Continue reading "By All Means Possible"

 
 

About Fallacies

Neil M. Richards & William Smart, How Should the Law Think About Robots? (2013), available at SSRN.

The article seems dated for a review here. There are newer ones on the subject, like e.g., Ryan Calo’s “Robotics and the Lessons of Cyberlaw” of 2014, for example. But the Richards & Smart article sticks in my mind. Maybe because, while both are premature (I will come to that immediately), this article makes a—or better—the fundamental point about law and politics in the face of changing technologies in a very simple and clear way.

“Premature” used to be the comment we would receive from the European Commission when we, at the heyday of European cyber regulation, as members of the Legal Advisory Board, an independent expert group abolished long since, would suggest a new initiative outside the Commission’s own agenda. Some of the readers may have encountered this word when presenting new ideas as legal counsel. I have never taken it as a derogatory term. “Premature” signifies a quality, if not an obligation, of legal proactive comment and advice. In that sense dealing with robotics and law is premature, and so are, by the way, the “We Robot” Conferences (established in 2012) which give context to this article, a conference series in which—disclosure is due—our Editor-in-Chief has been involved prominently.

The fundamental point is slow in coming: Richards & Smart start with a definition of a robot: a “non-biological autonomous agent,” i.e. “a constructed system that that display both physical and mental agency but is not alive in the biological sense.” We all are familiar, as the authors point out, with all sorts of robots. We know them from science fiction readings and the movies. There is already the small round disk that cleans our sitting rooms. There has been the automated assembly of cars by industrial robots. And lately these cars drive around themselves as robots guided by Google. And robots, the authors argue, will become increasingly multipurpose, gain more autonomy, and turn from lab exhibits into everyday devices communicating with each of us at any time. Law? There is a reference to the Nevada state regulation of 2011 for those car robots. But otherwise the article mentions legal implications only in a very general way; there is no discussion; there is not even a listing of possible legal problems. Continue reading "About Fallacies"

 
 

Influential But Uninformed: What Scotus Knows About Policing

Seth W. Stoughton, Policing Facts, 88 Tulane L. Rev. 847 (2014).

Sift through any number of Fourth Amendment decisions from the Supreme Court, and you will find many general observations about the police: that theirs is a dangerous profession, or that they possess a specialized instinct for spotting criminal behavior. Typically, such statements are made without citation to any source. How do the Justices know these facts? And are such statements accurate?

That is the central issue in the insightful article Policing Facts, written by Seth Stoughton (himself a former police officer turned law professor): what should we think of general observations about police that are made by the Court? While we expect Supreme Court decisions to discuss the facts that arise out of a particular case, it is also true that in resolving the issues the Justices will often make some assertion about policing in general: such as the working environment of the police, police practices, or police psychology. (Indeed, as Stoughton notes, the Court is quite willing to make general observations about nearly every aspect of policing.) While some of these “legislative facts” are supported by citations, more typically they aren’t. (P. 857.) These policing facts appear seemingly from nowhere. What’s wrong with inserting unsupported statements about the police into opinions? As Stoughton argues, policing facts are “simply wrong almost all of the time.” (P. 868.)

The Court’s regular use of unsupported policing facts will not surprise many, but hardly anyone has noticed its importance before. Of course, a mainstay of criminal procedure scholarship is the critique of the Supreme Court’s decisions for their normative undesirability or their doctrinal confusion. But what if the Court gets the basic factual premises wrong? Continue reading "Influential But Uninformed: What Scotus Knows About Policing"

 
 

Judicial Retention Meets Due Process

Martin H. Redish & Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism, Wm. & Mary L. Rev. (forthcoming, 2014), available at SSRN.

The differences between the composition and independence of the federal and state judiciaries have often been stated in simplistic terms—federal judges are appointed and state judges are elected, so the former enjoy greater independence while the latter are subject to greater popular accountability. But several instances of non-retention of state judges, often on the heels of controversial decisions, show that the real threat to judicial independence is not popular election as the means of initially selecting judges. Rather, the problem is popular election as the means of retaining judges once selected.

As Martin Redish and Jennifer Aronoff argue in a new article, “Judges will always owe their job to someone, and often someone who may at some point appear before them or be directly impacted by their decisions.” Instead, “the threat that a judge might make decisions on the basis of what might win him another term in office (and thus ensure his continued livelihood) looms constantly.” If the goal is to ensure judicial independence at the state level that looks more like judicial independence at the federal level, initial selection is largely irrelevant—the focus must be on creating better systems of retention. However a judge obtains her position initially, she should not have to worry about whether a particular decision will adversely affect her ability to retain that position. Continue reading "Judicial Retention Meets Due Process"

 
 

Corporate Privacy

Elizabeth Pollman, A Corporate Right to Privacy, 99 Minn. L. Rev. (forthcoming, 2014) available at SSRN.

Professor Elizabeth Pollman explores the validity and scope of a constitutional right to privacy for corporations in a thought-provoking forthcoming article, A Corporate Right to Privacy. In light of the discussions and debates about the rights of corporations surrounding the Supreme Court’s recent Hobby Lobby decision, the article provides an insightful perspective for thinking about the rights and limitations of constitutional protections for corporations, in particular those relating to the right to privacy.

The article is methodically structured and carefully presented for the reader. Pollman states her measured, core argument early in the article:

This Article argues that corporations hold rights derivatively, to vindicate the rights of natural persons associated with or affected by the corporation. Accordingly, most corporations in most circumstances should not have a constitutional right to privacy….Yet because corporations are not monolithic, but rather exist along an associational spectrum, this Article also highlights that some nonprofit and private corporations could present a stronger claim given their varying purposes and dynamics, particularly in social, political, and religious realms.

Pollman, then, deftly reviews decades of federal and state law relating to corporate privacy, explains her derivative approach for adjudicating corporate constitutional rights, and closes by applying that derivative approach to the right to privacy. The writing in the article is lucid, and the analysis is nuanced. The article recognizes the complexities and sensitivities of examining issues at the intersection of privacy and corporations. It avoids bold pronouncements and omniscient schemes by being mindful of the diversity of considerations relating to privacy and corporations. Continue reading "Corporate Privacy"

 
 

Dispersing Judicial Power

Why does our republic accept judgments invalidating decisions of presidents, congresses, and federal agencies? Why do state authorities elected by local constituents accept decisional overrides by federal judges? These questions, often called “the counter-majoritarian difficulty,” have drawn the attention of scholars for decades.

Professor Ronald Krotoszynski’s “The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power,” casts new light, albeit indirectly, on this paradox. Descriptively, the article usefully examines the design parameters (constitutional, statutory, and procedural) of the federal judicial power. Normatively, it suggests hidden strengths to these parameters, which improve the quality and acceptance of judicial decisions that are often overlooked by analysts and reformers. Continue reading "Dispersing Judicial Power"

 
 

Scrutinizing the Effects of State Interest Group Participation in Federal Administration

Miriam Seifter, States as Interest Groups in the Administrative Process, Va. L. Rev. (forthcoming, 2014), available at SSRN.

Recent scholarship on administrative federalism has advocated for federal agencies to consider state interests—with many scholars praising the notion of giving states a voice in the federal regulatory process. However, in arguing for a strong partnership between states and federal agencies, federalism scholars have given little attention to what costs might flow from state involvement in federal administration. In States as Interest Groups in the Administrative Process, forthcoming in the Virginia Law Review, Professor Miriam Seifter astutely points out this void in the scholarship, and she begins to fill the scholarly gap by carefully scrutinizing and weighing the costs and benefits of state interest group participation in the federal regulatory process.

Specifically, Professor Seifter, who recently joined the University of Wisconsin Law School as an assistant professor, argues that—contrary to the prevailing view of many federalism scholars—state involvement in federal regulation is not all rosy. Rather, she asserts that state interest groups—which she defines as “organizations of state elected or appointed officials whose mission is to represent the official interests of their members, particularly in front of the federal government” (P. 8)—impose significant costs on the administrative process. Continue reading "Scrutinizing the Effects of State Interest Group Participation in Federal Administration"

 
 

A Grand Unified Theory of Employment Law

Samuel R. Bagenstos, Employment Law and Social Equality, 112 Mich. L. Rev. 225 (2013).

If the law of the workplace could be anthropomorphized into a family of four siblings, here’s how it might go: labor law would be the oldest, a raconteur spinning yarns about the old days; employment discrimination would be the middle child, an activist vigorously standing up for justice and equality; employee benefits would be an accountant, quietly off to the side at family dinners; and employment law would be the oddball youngest child, jumping from activity to activity without rhyme or reason.1 I teach employment law, and it is often compared to a “catch-all” or “grab-bag” category: anything that doesn’t fit in the other courses is covered there. The Fair Labor Standards Act is paired with covenants not to compete; unemployment compensation is alongside the at-will doctrine. This hodge-podge looks like an unfortunate intellectual shambles when contrasted with labor law, which has the coherence of an overarching (and little amended) system of regulation, as well as employment discrimination, which has a limited set of comparable federal statutory schemes. Perhaps as a result, the employment law course tends to be one that a professor picks up on the side, to accompany one’s main interest in one of the other three subjects.

Sam Bagenstos has set himself the task of cleaning up this particular set of Augean stables by providing an overarching theory to justify our set of employment law doctrines. In Employment Law and Social Equality, Bagenstos sets out a “social equality” theory of employment law under which individual employment doctrines can be understood, as well as justified, for their promotion of social equality. Jumping off from his work on social equality and antidiscrimination protections, Bagenstos notes the difference: “[w]here employment discrimination law targets the threats to social equality caused by occupational segregation and group-based subordination, individual employment law should be understood as targeting the threat to social equality posed by a boss’s ability to leverage her economic power over workers into a more general social hierarchy in and out of the workplace.” (P. 232.) He argues that social equality—the notion that each of us are equal members of our communities—serves as the primary justification for many important employment law doctrines, such as employee privacy and autonomy protections, antiretaliation provisions, arbitration regulation, child labor laws, and overtime protections. Nimbly straddling the line between positive and normative claims, Bagenstos argues that social equality can serve as a theoretical lens for both seeing the law and critiquing it. As an example, he argues that critics of the at-will rule are primarily concerned with its effects in undermining social equality, and that the rule should be dismantled for propping up workplace hierarchies. His “social equality” theory thus serves as a tool for understanding the law as well as a sword for attacking it when it exacerbates existing hierarchies. Continue reading "A Grand Unified Theory of Employment Law"

 
 

Descendibility: The Neglected Stick in the Bundle

David Horton, Indescendibility, 102 Calif. L. Rev. __ (forthcoming, 2014), available at SSRN.

Should the right to transfer an asset after death extend to kidneys, personal injury claims, or frequent flier miles? In Indescendibility, Professor Horton provides a fascinating and in-depth examination of this neglected right in property law’s bundle of sticks. He maps out a theoretical justification for indescendibility, grounding it in a set of practical concerns about the administration of posthumous property, and offers several suggestions for law reform. Professor Horton has a knack for unearthing unique and cross-cutting themes in the law of trusts and estates, and this piece again provides readers with significant food for thought.

Part I takes us on a tour of the variety of things that have been made indescendible by law, as well as the diverse sources of law from which this indescendibility flows. The United States Constitution prohibits the descendibility of noble titles and hereditary privileges, a move by the early American political elites to distinguish themselves from the British. Indescendibility is also the standard rule for body parts, where descendibility has been regulated by statute or outright prohibited because body parts have not typically been considered to be property. The common law doctrine of abatement restricts descendibility of legal claims for physical injury. While this doctrine has been superseded by survival statutes in nearly all states, these statutes are inconsistent in their scope and application, sometimes leaving the abatement rule intact in practice. Indescendibility by contract is the newest frontier of interest, where fine print often prevents sports fans from passing season tickets to their heirs. Continue reading "Descendibility: The Neglected Stick in the Bundle"

 
 

A Map Through the Punitive Damages Forest

Yehuda Adar, Touring the Punitive Damages Forest: A Proposed Roadmap, 1 Osservatorio Del Diritto Civile E Commerciale [The Civ. & Com. L. Observer] 275 (2012), available at SSRN.

The questions raised by punitive damages are numerous and varied: Should punishment be a part of the civil system? Are punitive damages awards “out of control”? Should a punitive damages award be split between the State and the individual plaintiff? Should caps be placed on punitive damages? Indeed, the topic of punitive damages has been examined from competing empirical perspectives, from a comparative law analysis, from a historical angle, and the list goes on and on and on.

Enter a new article by Yehuda Adar. In this thought-provoking piece, Adar offers a framework for organizing these various debates about punitive damages. In so doing, Adar provides a convenient and helpful synthesis of both the current objections to punitive damages, and the counter-arguments in support of punitive damages’ place in the civil liability system. Continue reading "A Map Through the Punitive Damages Forest"

 
 

Next Up, Incest

Anthony C. Infanti, Big (Gay) Love: Has the IRS Legalized Polygamy?, N.C.L. Rev. Addendum (forthcoming, 2014), available at SSRN.

Gay marriage opponents love to fear monger about the slippery slope of extending marriage beyond the legal union between one man and one woman. They prophesy that if we allow marriage between two men or two women, we will descend into a Gomorrah of incest, adultery, polygamy, and animal love. In his essay, Big (Gay) Love: Has the IRS Legalized Polygamy?, Anthony Infanti makes subversive use of this repugnant meme to advance his view that tax results should not depend on marriage in the first place.

Infanti’s argument focuses on an analysis of Revenue Ruling 2013-17 (the Ruling), which recognizes same-sex marriages for federal tax purposes. Issued in 2013, after the U.S. Supreme Court invalidated section three of the federal Defense of Marriage Act, the Ruling announces the IRS’s adoption of a general interpretive rule that “for Federal tax purposes … recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple’s place of domicile.” Infanti interprets the Ruling to apply to a limited subset of same-sex marriages, in contrast to what he calls the “alternative interpretation” of the Ruling, which reads the Ruling more expansively to cover a larger number of same-sex marriages. Infanti claims that under alternative interpretation of the Ruling, the IRS would also have to recognize the validity of plural marriages. Continue reading "Next Up, Incest"