Dismissing Discrimination

David Schraub, Dismissal (2016), available at SSRN.

In a recent article in The New York Times Magazine, sociologist Alice Goffman – author of an award-winning book that followed a group of African-American men in Philadelphia over six years – addressed accusations that her book presents an implausible account of police practices. When the magazine reporter sought corroboration from the police themselves about certain of these alleged practices, Goffman challenged the notion that “[t]he way to validate the claims in the book is by getting officials who are white men in power to corroborate them.” She continued, “The point of the book is for people who are written off and delegitimated to describe their own lives and to speak for themselves about the reality they face, and this is a reality that goes absolutely against the narratives of officials or middle-class people. So finding ‘legitimate’ people to validate the claims – it feels wrong to me on just about every level.”

In his new article, Dismissal, David Schraub takes aim at exactly the phenomenon that Goffman describes: the act of dismissal, by which “the interpretive frames proffered by [a] claimant [are portrayed] as illegitimate and the testimonial offerings of the claimant as irrational.” (p. 28.) (To be clear, neither Schraub nor this review engage with the substance of the criticisms of Goffman’s work, but rather to use her comments about corroboration and validation as a jumping-off point. Schraub does not discuss Goffman in his article.) Schraub is concerned both with courts’ dismissal of novel legal claims under Federal Rule of Civil Procedure 12(b), and with dismissal in its broader sense, “a decision (in any deliberative context) to dispense with a proffered claim prior to considering its merits.” (p. 3.) Continue reading "Dismissing Discrimination"

 
 

Shades of Discrimination Brought to Light

Nancy Leong, Negative Identity, 88 S. Cal. L. Rev. 1357 (2015).

Justice Kennedy raised some hackles when he said in Obergefell v. Hodges that “[m]arriage responds to the universal fear that a lonely person might cry out only to find no one there.” Some wondered how Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor—one widowed, one never married, and one long-single—must have felt to sign on to an opinion grouping them together with other souls “condemned to live in loneliness.” Others criticized the opinion’s rhetoric as unnecessarily demeaning to life outside of marriage. Justice Kennedy’s disparagement of single life might have been lamentable, but it usefully highlights a common experience of those who do not participate in the social institutions—sex, partnership, organized religion, and child-rearing—that society deems fundamental. Such individuals often find themselves the targets of marginalization, animus, or unfair treatment under the law.

In her thought-provoking article, Negative Identity, Nancy Leong brings together several of these identities—atheist, asexual, single, and childfree—and builds a case for their protection. Identity is a complicated subject and Leong takes care to define and defend her categories. Leong uses the term “negative identity” to refer to those identities marked by indifference or antipathy to something that much of society views as fundamental. These identities are negative in terms of opposition but not in terms of absence: the childfree, for example, do not merely lack children; they have chosen not to have children based on emotional commitments, personal and professional freedom, environmentalism, or simply a desire to allocate personal resources to other causes. By defining the term in this way, Leong means to distinguish between those who have affirmatively taken on these identities from those with only passing affiliation with these identities. That is, the term is intended to distinguish between those who consciously choose to forego sex and those who are celibate because they are between intimate relationships. Likewise, “negative identity” focuses on those who have chosen to forego parenthood from those who may desire children, but who have not yet acted upon these desires or been successful in their attempts at parenthood. Continue reading "Shades of Discrimination Brought to Light"

 
 

Reviving the Dead Hand After Repeal of the Rule Against Perpetuities

Reid Kress Weisbord, Trust Term Extension, 67 Fla. L. Rev. 73 (2015).

Over the past few decades, most states have repealed the Rule Against Perpetuities or significantly extended the time period during which trusts may continue to exist. As a result of these changes, estate planners frequently attempt to extend the terms of trusts that were originally created to comply with the Rule Against Perpetuities. They primarily do this through modification doctrines, such as equitable deviation.

In this article, Dean Reid Kress Weisbord argues against the use of modification doctrines to extend the duration of trusts beyond the Rule Against Perpetuities period that was in effect when the trust was created. In addition, he recommends that the drafters of the Uniform Trust Code (the “UTC”) modify the UTC to clarify that modification doctrines do not permit the addition of beneficiaries to the trust who were not identified in the original trust instrument. Continue reading "Reviving the Dead Hand After Repeal of the Rule Against Perpetuities"

 
 

Boilerplate and the Boundary Between Contract and Tort

Margaret Jane Radin’s latest work, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law and a companion article and book chapter interrogate how now-ubiquitous fine print buried deep in consumer contracts affects the rights of ordinary Americans. This boilerplate can take many forms. It includes “extravagant exculpatory clauses,” choice-of-law provisions, and waivers of consequential damages. Frequently, and perhaps most importantly, it also includes agreements to arbitrate—and, in so doing, entails consent to eliminate the background protections we take for granted, including juries, reasonable filing fees, rights of appeal, rules of evidence, the ability to join with similarly aggrieved individuals, and stare decisis. Radin finds this fine print deeply troubling. She argues that, considered in tandem, these contractual terms make certain remedies for transgressions practically unavailable and thereby undermine individual autonomy, degrade democratic principles, and, ultimately, subvert the rule of law.

Because Radin is a contracts scholar—and her recent work is, on the face of it, about contract law—it would be easy for those of us who traffic in tort to miss the scholarship’s significance. That would be a mistake. Continue reading "Boilerplate and the Boundary Between Contract and Tort"

 
 

Practice Makes Perfect: Weaving Together the Fabric of the Virtuous Biller

Randy D. Gordon & Nancy B. Rapoport, Virtuous Billing, 16 Nev. L.J. 698 (2015).

During the holiday season, I think of Santa evaluating who is naughty and nice. Like Santa, senior lawyers in law firms make end-of-the-year determinations when deciding on bonuses, salary increases, promotions, and distributions. Unlike Santa who judges the character of children on his list, law firm partners may focus more on objective measures of worth. In law firms this often amounts to billable hours collected and business generated. In firms, new lawyers quickly learn what is valued within the organization and many shape their conduct to maximize their income and promotion possibilities. As explained by Eliyah Goldratt, the Israeli physicist and management consultant, “Tell me how you measure me and I will tell you how I will behave.”1

In their recent article, Virtuous Billing, Randy D. Gordon and Nancy B. Rapoport, recognize the role of incentives and performance management in law firms. The authors examine firm conduct and billing practices through the lens of virtue ethics. I especially like the article and commend it to you because it provides positive recommendations on steps that firm leaders and other interested parties can take to improve the quality of work for clients and the quality of life of lawyers. Continue reading "Practice Makes Perfect: Weaving Together the Fabric of the Virtuous Biller"

 
 

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"