It’s Time To Revisit The Tax Treatment of Working Childcare Costs

Shannon Weeks McCormack, Over-Taxing the Working Family: Uncle Sam and the Childcare Squeeze, 114 Mich. L. Rev. ___ (2015), available at SSRN.

Childcare costs have soared in recent years while wages remain stagnant. To make matters worse, relief by provided by the tax code is extremely limited. Parents may be able to claim a tax credit for a portion of their childcare costs and may be able to divert limited funds to a pretax flexible spending account. But in many cases, these tax benefits capture only a minor portion of parents’ costs. It is no surprise, then, that with an election year upon us, a number of proposals to expand the current childcare tax credit have resurfaced in recent months. These proposals echo years of debate over whether the tax system discourages work by secondary earners and treats working parents unfairly vis-à-vis their non-parent counterparts.

But current proposals to modestly expand the childcare credit will make only a small dent in working parents’ childcare costs. Recognizing the inadequacy of such an approach, Shannon Weeks McCormack proposes a more fundamental reform in her forthcoming article, Over-Taxing the Working Family: Uncle Sam and the Childcare Squeeze. The childcare tax credit, she argues, should be replaced with an above-the-line deduction for childcare expenses that is not subject to phase-outs or dollar limitations. In essence, Weeks McCormack calls for according childcare expenses the same treatment as deductible trade or business expenses. Continue reading "It’s Time To Revisit The Tax Treatment of Working Childcare Costs"

 
 

Can “Legitimate Expectations” Ever be “Rights”?

Florian Dupuy & Pierre-Marie Dupuy, What to Expect from Legitimate Expectations? A Critical Appraisal and Look into the Future of the ‘Legitimate Expectations’ Doctrine in International Investment Law, in Festschrift Ahmed Sadek El-Kosheri: From the Arab World to the Globalization of International Law 273-298 (Mohamed Abdel Raouf, Philippe Leboulanger, & Nassib G. Ziadé eds., Kluwer 2015).

The trouble with the amiable practice of collections of essays in honor of admired scholars is that they are so often published in a stand-alone volume rather than in journals of record, with the result that they may be lost to all but initiates who happen to know of its existence. In the just-published Festschrift for Professor Ahmed Kosheri, the preeminent Egyptian international lawyer of his generation, this pearl of an essay deserves a better fate. It addresses fundamental issues with respect to the degree of legal stability to which a foreign investment is entitled from a host state in light of the instruments applicable to its entry, and suggests broad guidelines to resolve the hesitations of the caselaw to date.

The authors are a father-son team of French authors, each exceptionally erudite and polyglot. Florian, the son, holds degrees from three major law faculties (Paris, Humboldt, and Cambridge). In 2007, he presented a thesis for joint recognition by Paris (Panthéon-Assas) and Humboldt which is of direct relevance to this joint contribution, entitled La protection de l’attente légitime des parties au contrat – Étude de droit international des investissements à la lumière du droit comparé. Pierre-Marie has for long been one of the bright stars on the firmament of international legal scholars and prominent among the lawyers who practice before the International Court of Justice. He has also served as arbitrator on tribunals deciding important disputes between states and foreign investors arising under bilateral investment treaties and thus applying the law referred to in their title. Continue reading "Can “Legitimate Expectations” Ever be “Rights”?"

 
 

Can Property Principles Save International Law?

Joseph Blocher & G. Mitu Gulati, A Market for Sovereign Control, Duke L.J. (forthcoming 2016), available at SSRN.

International law currently finds itself in a bit of a jam.  The time-honored principle of territorial integrity grants nations near-absolute control over their borders. Central governments, for example, routinely reject boundary changes proposed by neighboring states or internal secessionist movements. At the same time, however, the increasingly relevant principle of self-determination demands that all peoples have the opportunity to choose their own national affiliations, govern themselves, and develop free political institutions.

What happens when these two doctrines come into tension?  When does the desire for self-determination and the search for better governance trump the inviolability of international borders? And how should the international community respond when a local region seeks to escape an unjust parent country?

In a new article, Joseph Blocher and Mitu Gulati propose an audacious solution to this defining quandry of modern international relations. Blocher and Gulati attempt to solve the problem of international boundary disputes and increase good governance by introducing property theory into the arena of international law.  The crux of their idea is that a nation’s control over its borders should become subject to a liability rule rather than a property rule if it discriminates against one of its constituent regions. Continue reading "Can Property Principles Save International Law?"

 
 

Did Public Interest Lawyers Undermine the New Deal Order?

Paul Sabin, Environmental Law and the End of the New Deal Order, 33 Law & Hist. Rev. 965 (2015).

Paul Sabin’s recent article puts elite liberal lawyers at the center of the story of the demise of the “New Deal order” – that “period of time between the 1930s and 1970s when the federal government, in close partnership with business and labor organizations, greatly expanded its coordination of the national economy and individual industries, as well as its development of natural resources and public infrastructure projects.” (P. 969.) Sabin draws on a wealth of oral histories, interviews, and archival materials to provide an engaging history of public interest environmental lawyers and organizations – including the Environmental Defense Fund, the Center for Law and Social Policy, the Natural Resources Defense Council, and the Sierra Club Legal Defense Fund. These lawyers and law firms challenged New Deal assumptions; in doing so, Sabin argues, they were as key to the fracturing of New Deal-style liberalism as its conservative critics.

Sabin describes how environmental lawyers, like other public interest lawyers in the 1960s, were inspired by the successes of the NAACP and ACLU in using litigation for social change. And while they shared Americans’ growing distrust of government action in the Vietnam War era, they were also specifically influenced by the mid-century critique of administrative governance as slow, rule-bound, unresponsive, and/or corrupt. Agreeing that the New Deal agencies tasked with protecting the public interest had failed to do so, environmental lawyers pointed specifically to the ways in which Americans and their environment were harmed by federal officials’ pursuit of centralized planning and economic growth. These elite lawyers with stellar credentials, who three decades earlier might have pursued their interest in public service through jobs at the agencies and commissions, now sought to become an external check on agency governance. Continue reading "Did Public Interest Lawyers Undermine the New Deal Order?"

 
 

Rethinking Civil Settlement

J.J. Prescott and Kathryn E. Spier, A Comprehensive Theory of Civil Settlement, N.Y.U. L. Rev. (forthcoming 2016), available at SSRN.

How should we understand settlement in civil litigation? In A Comprehensive Theory of Civil Settlement, J.J. Prescott and Kathryn Spier rethink civil settlement and take a significant step forward in the scholarly conversation about this topic. Generally, settlement has been understood as an alternative to a judicial disposition in the case. In this view, settlement is a zero-sum event from a systemic standpoint. (Of course, the parties negotiating a settlement may split the differences between them and both receive gains, but I am speaking of the court’s perspective here.) Prescott and Spier provide a new way of thinking about settlement as a continuum rather than as an either/or event that ends the dispute. At one end of the continuum is litigation according to the default procedural and substantive rules. On the other end is the termination of the dispute with an agreement. In between are many smaller agreements that parties can, and do, reach in moving toward resolution of their dispute. In explaining the implications of this insight, this article ties together disparate scholarship in a neat way. They support their argument with evidence from a sample of cases in New York’s summary jury trial docket.

The first step in their analysis is to define a settlement. Prescott and Spier define settlement as any agreement between the parties that improves their position in the litigation by some combination of (1) reducing adjudication costs, (2) mitigating losses due to risk, or (3) maximizing ex ante returns. This agreement need not end the litigation. A high-low agreement, for example, sets a range for the outcome of the case because the parties agree that regardless of what the adjudicator decides, they will set a cap and a floor to the damages. Still, the case goes to trial. In the binary view, a high-low agreement does not count as a settlement, but it is an agreement between the parties that mitigates losses due to risk. Prescott and Spier categorize partial settlements (that is, settlements that are on the continuum between no agreement and resolution) into three types: award-modification agreements, issue-modification agreements, and procedure-modification agreements. Continue reading "Rethinking Civil Settlement"

 
 

Comparing Milks

Yoriko Otomo, The Gentle Cannibal: The Rise and Fall of Lawful Milk, 40 Austl. Fem. L. J. 215 (2014).

In her splendid article, The Gentle Cannibal: The Rise and Fall of Lawful Milk, SOAS, University of London Lecturer in Law Yoriko Otomo tackles the fascinating subject of state control over milk production in three jurisdictions—France, England, and India—which all embraced milk at some point in their history as an essential food to support their nation, both nutritionally and economically. She shows that in these countries, law shaped and promoted the commercialization of cow’s milk, shifting the locus of milk production from the domestic sphere to the industrial and negatively impacting rates of breastfeeding.

Why analyze a substance as seemingly local as milk from a comparative legal perspective? Otomo argues that “milk feeding — through the control of both the ‘flow’ of breastmilk and of cow’s milk — undertakes the juridical work of drawing consumers into a regulatory and ideological system, making them lawful subjects.” In other words, milk production and regulation have historically been intertwined with the development of the law and political economy of the modern nation state. Otomo’s three cases in point are: the nineteenth century French regulation of the wet nursing profession, which brought the state into the domestic sphere; the rise and fall of the English Milk Marketing Boards in the twentieth century, which ensured standardized milk prices and increased dairy consumption across the United Kingdom; and postcolonial India’s “White Revolution” in the 1970-90s, which transformed India into the world’s largest milk producer. Continue reading "Comparing Milks"

 
 

How Do Creators Respond to Risk?

Andres Sawicki, Risky IP , Univ. of Miami Legal Research Paper No, 16-18 (2016), available at SSRN.

Intellectual property laws govern activities that are inherently risky. Authors and inventors can only estimate the consumer demand for their contributions. And many creative activities run the risk of infringing existing IP rights. Accordingly, it is essential for policymakers and scholars to understand how creators think about risk.

To date, most people who have written about IP law and risk have assumed that creators will be risk averse. In a new paper, Andres Sawicki challenges these accounts and argues that the kinds of people that IP law typically regulates—creative people—tend to be risk seeking. Accordingly, where others saw the risk inherent in IP as a problem, Sawicki sees it as potentially beneficial. Continue reading "How Do Creators Respond to Risk?"

 
 

The Value and Limits of Free Exercise Doctrinalism

  • Frederick Mark Gedicks, Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, G.W. L. Rev. (forthcoming, 2016), available at SSRN.
  • Michael A. Helfand, Identifying Substantial Burdens, U. Ill. L. Rev. (forthcoming, 2016), available at SSRN.

In recent years, a lot of the best and most interesting scholarship on law and religion has been on the theoretical side. A good deal of thought and ink has been spent, for example, asking whether religion is “special” for purposes of constitutional law, or whether there is not (or no longer) a sufficient or justifiable distinction between religious beliefs and other closely held beliefs. Certainly that question can have a powerful payoff in the law, but for the most part writers addressing that question have treated it at a higher level of abstraction, and acknowledged that the question might be viewed differently and answered more prosaically with the specific text, history, and jurisprudence of the United States Constitution in mind.

Now, it appears, we are back to doctrine—and, more specifically, free exercise doctrine, whether constitutional or, and perhaps especially, statutory. The two pieces discussed here—Frederick Mark Gedicks’s Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, and Michael A. Helfand’s Identifying Substantial Burdens—are fine examples of the phenomenon. Continue reading "The Value and Limits of Free Exercise Doctrinalism"

 
 

Rights, Virtues, and Natural Law

John Finnis, Grounding Human Rights in Natural Law, 60 Am. J. Juris. 199 (2015).

Of the many reviews and critical notices that greeted the publication of Natural Law and Natural Rights [NLNR] in 1980, one of the most influential, and thus far unchallenged, was that by the distinguished American theologian Ernest Fortin, entitled The New Rights Theory and the Natural Law. In it, Fortin set out many of the principal criticisms that readers oppose to NLNR’s doctrines to this day: the book’s appearance of distance from traditional Aristotelian-Thomist concerns and modes of explanation; its focus on natural right in place of natural law (and the differences between the two concepts); the absence of the virtues from the book’s moral philosophy; its apparent surrender to liberal individualism.

In the years since 1980, John Finnis has amplified — sometimes considerably — upon these matters, including in the 2011 ‘Postscript’ to the second edition of NLNR, but until now had not directly replied to Fortin’s review. This long essay incorporates that reply. Whilst that Postscript served as an opportunity to comment upon and clarify the intention of many of the book’s passages, the present essay is closer in character to the ‘Postscript’ written by Hart for the second edition of The Concept of Law, focusing on the position of one critic in particular. Continue reading "Rights, Virtues, and Natural Law"

 
 

The Judiciary’s Role in Hard (Health Care) Cases

Neal Devins, Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government, 69 Vand. L. Rev. _ (forthcoming 2016), available at SSRN.

On March 2d, the US Supreme Court heard oral arguments in Whole Woman’s Health v. Hellerstedt, which will determine whether “TRAP laws” (targeted regulation of abortion providers) impose an unconstitutional undue burden on access to abortion, a medical or surgical procedure accessed by approximately one-third of US women of reproductive age. The Texas laws at issue require doctors who provide abortions to have admitting privileges in a hospital within 30 miles of their clinic, and abortion clinics that would otherwise operate like doctors’ offices are required to adhere to extensive ambulatory surgery center licensure requirements. The cumulative effect of these laws would be to leave 25% of Texas’s clinics operating — ten clinics for the state that is the second largest in land mass and population in the US. This opinion could decide whether the constitution protects a merely theoretical right to access abortion rather than a right that can actually be exercised by women across all parts of the nation. In Rethinking Judicial Minimalism, Professor Devins analyzes how this precipice has been reached from a judicial process and political perspective and reconsiders judicial minimalism as the superior procedural approach for contentious cases.

Planned Parenthood v. Casey and Roe v. Wade are the two key decisions interpreting the Due Process Clause to protect women seeking abortions from prohibitive state regulation. In Professor Devins’ view, Roe was a “maximalist” decision that worked legislatively by creating a formal regulatory structure, and Casey was a “minimalist” decision that correctly discarded Roe’s “trimester framework” and allowed states to follow the vaguer “undue burden” standard, which meant that states could regulate abortion if they did not place substantial obstacles in the path of a woman seeking an abortion. Professor Devins notes that the minimalist approach to judicial power that he has advocated seemed the best mechanism for allowing the deliberative democratic process to reach policy compromises on hard questions. In the wake of Roe and Casey, many notable scholars and jurists (including Justice Ginsburg) agreed that states should have reached their own conclusions without the Court crafting a decision that delineated how and when states could regulate the abortion procedure, thereby usurping states’ deliberative and political processes. Continue reading "The Judiciary’s Role in Hard (Health Care) Cases"

 
 

Un-“Civilized”: On the Criminalization of Raced and Gendered Poverty through Child Support Enforcement

Tonya L. Brito, David J. Pate Jr., and Jia-Hui Stefanie Wong, “I Do for My Kids”: Negotiating Race and Racial Inequality in Family Court, 83 Fordham L. Rev. 3027 (2015).

“I Do for My Kids” is a timely and thoughtful empirical exploration of racialized access to justice issues with within family courts. Why then, one might ask, should it provide the basis for a jot in the area of criminal law? The answer has to do with the punitive means some jurisdictions are utilizing to enforce the payment of child support obligations.

Using original research, including in-person, ethnographic observations and interviews at multiple sites, the authors detail how “[c]ivil incarceration pursuant to an order of contempt is commonly used as a remedy to enforce child support orders against indigent noncustodial parents.” (P. 3035.) In this work, Professor Brito and her co-investigators, paint a riveting but disturbing portrait of how low-income—and typically black—fathers must negotiate the demands of law and identity within the space of child support enforcement hearings. Continue reading "Un-“Civilized”: On the Criminalization of Raced and Gendered Poverty through Child Support Enforcement"