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"

 
 

Those Are Pearls That Were His Eyes

Full fathom five thy father lies;
                Of his bones are coral made;
Those are pearls that were his eyes:
                Nothing of him that doth fade
But doth suffer a sea-change
Into something rich and strange.
Sea-nymphs hourly ring his knell
                                    Ding-dong
Hark! now I hear them – Ding-dong, bell.
–William Shakespeare, The Tempest

During the War of 1812, Philadelphia’s Academy of Fine Arts petitioned a Nova Scotia admiralty court to release works of art bound for it from Italy aboard an American merchant ship captured by the British and brought to Halifax. The court granted the petition distinguishing, for the first time in a published judicial opinion, cultural property from other chattel, stating that works of art are “entitled to favour and protection.”1 By creating an exception for paintings and prints, the court gave cultural property a special legal status, the contours and extent of which remain elastic. Two centuries after the Nova Scotia court christened the field of cultural property law, Valentina Vadi has written an insightful article seeking to determine whether a norm of customary international law is developing to distinguish and provide special legal treatment for a particular kind of cultural property: sunken warships.

Sunken ships are an especially complicated form of cultural property. A ship’s wreckage and cargo are often historically and aesthetically important and immensely valuable monetarily; their archaeological context preserves unique and irreplaceable information; their human remains implicate practices and traditions relating to treatment of the dead; and some pose environmental hazards to flora and fauna (both of which are deemed cultural property under a 1970 UNESCO cultural property convention). Because new technologies are facilitating the discovery, identification, and recovery of shipwrecks, it is reasonably foreseeable that disputes over them will continue. Thus, the growing scholarship on shipwrecks is timely, and Valentina Vadi’s inquiry, in particular, responds to an important question. Continue reading "Those Are Pearls That Were His Eyes"

 
 

Just the Beginning: Studying the Global Demography of Lawyers

Ethan Michelson, Women in the Legal Profession, 1970-2010: A Study of the Global Supply of Lawyers, 20 Ind. J. Global Legal Stud. 1071 (2013).

In the past a few decades, feminization has been one of the most notable developments in the legal profession worldwide. From Continental Europe to North America, from Latin America to Asia, research has shown a rapid increase in the proportion of female lawyers in vastly different national and legal contexts (see Kay and Gorman 2008 for a review). Yet few existing studies provide a good cross-national comparison of the global trends of lawyer feminization. Despite the enduring structural barriers in recruitment, compensation, and promotion that women face in law firms and other elite legal institutions, they have continued to enter the bar in vastly different social contexts. What are the driving forces behind the feminization of lawyers? And how does this process vary from one country to another?

Using data on lawyer populations and gender compositions assembled from national censuses and lawyer statistics in 86 countries, Ethan Michelson’s recent study offers a comprehensive and convincing analysis of the relationship between bar expansion and lawyer feminization. Despite large variations of legal systems and lawyer demographics across different countries, Michelson finds a highly consistent pattern, that is, almost no country’s legal profession has attained a feminization level of at least 30% of women before its lawyer density (i.e., lawyer/population ratio) surpassed a level of 2,000 people per lawyer. In other words, feminization is part of some larger demographic changes in the legal profession worldwide. Continue reading "Just the Beginning: Studying the Global Demography of Lawyers"

 
 

Bodies on the Line: The Private Tragedies Underlying Modern Products Liability Law

“Legal interpretation,” Robert Cover famously wrote, “takes place in a field of pain and death.” Honoring Cover’s important insight is one of the great challenges of legal scholarship. As we use our expertise to explore the nooks and crannies of our “legal world”—the clever transactional devices, complex regulatory schemes, and jurisdictional puzzles—do we recognize the state-inflicted and -sanctioned violence on which this world depends? Barbara Young Welke’s The Cowboy Suit Tragedy is a powerful example of how to write about law without losing sight of what Cover calls the “bodies on the line.”1 In the tradition of critical legal history, Welke’s insightful and empathetic account of a mid-twentieth-century products liability case goes further still, to show us the profoundly unequal impact of law’s violence. By placing the case in the context of the “democratization of [consumer] desire,”2 the rise of product liability insurance, and the inherently atomizing features of private law, Welke reminds us that even when tort law forced manufacturers to bear the monetary cost of accidents, the emotional and physical injuries lay where they fell. Families—here, children—owned the hazards inherent in many products, and most often they owned them not as a class or community, but as individuals, as scattered and disconnected as the transactions that brought the products into their lives.

The Cowboy Suit Tragedy centers on the New York case McCormack v. M. A. Henry Co., a wrongful death suit brought by the McCormack family against the manufacturers of the Gene Autry cowboy suit. A popular toy since it first came off the production line in 1942, the “Autry cowboy ranch outfit” offered parents a way to “provide their children with a protected childhood,” an intense postwar desire, while participating in the mass consumer economy that increasingly defined American identity. (P. 103.) Unfortunately for seven-year-old Tommy McCormack, who received the toy for Christmas in 1944, there was a hazard “designed in” to the costume: its plush white chaps were made from a highly flammable viscose rayon fiber, at a time when “children encountered fire as a regular part of daily life.”3 “One minute Tommy was playing,” Welke writes, drawing from court testimony, “and the next he was screaming,” in what his brother Jackie remembered as “a ‘circle of fire.’” After four long months, he died from his injuries. (P. 101.) Other children had by then suffered similar fates, but after Mr. McCormack’s chance encounter with a lawyer, Tommy became the cowboy suit’s first legally cognizable victim. (P. 111.) Continue reading "Bodies on the Line: The Private Tragedies Underlying Modern Products Liability Law"