Adam Cohen has written an exhaustive account of the nexus between eugenics, racism and immigration law in the United States. Against the backdrop of the Carrie Buck case, a young, poor Catholic woman, sentenced to a colony for folks categorized as morons, imbeciles and the feebleminded, Cohen provides a stark reminder of the complicity of the Courts, scientists and policy makers in the devolvement of equality and due process for persons labeled undesirable. He reminds us that in the 19th Century “undesirable” was pinned to women who were working poor, Catholic, and not of Anglo (British) origin. These women were segregated from society until aging out of childbearing or were sterilized against their will.
The case of Buck v Bell stains not only the early history of Progressives, adherents to eugenics, but the legacy of Oliver Wendell Holmes who opined, “Three generations of imbeciles are enough,” as he upheld the forced sterilization of women. With the stroke of a pen, countless women were housed in segregated colonies, sterilized and branded for life as the result of an accident of birth and social caste. Continue reading "Im-be-ciles: The Supreme Court, American Eugenics and the Sterilisation of Carrie Buck"
Anat R. Admati, It Takes a Village to Maintain a Dangerous Financial System
in Just Financial Markets? Finance in a Just Society
(Lisa Herzog ed., forthcoming 2017), available at SSRN
It Takes a Village to Maintain a Dangerous Financial System, a chapter by Anat Admati in a forthcoming book should be required reading for legislative actors who are thinking about reviewing rules of financial regulation introduced after the onset of the global financial crisis.
Before the global financial crisis, policy-makers believed in risk-free assets and risk mitigation techniques. The Basel Committee on Banking Supervision developed capital adequacy standards to identify and neutralize a range of risks associated with the business of banking. But the crisis revealed weaknesses in the standards, and in their divergent and inadequate implementation, as well as new risks that the standards did not address. At the same time, as Andrew Haldane, Chief Economist at the Bank of England, has acknowledged, “the economic and financial crisis … spawned a crisis in the economics and finance profession.” In responding to the financial crisis, the G20, the Basel Committee on Banking Supervision, the Financial Stability Board, and the IMF announced a new commitment to focus on improving international standards for bank regulation and to ensure that the standards were implemented effectively. Regular reports by these bodies note concerns relating to financial stability, but suggest that they are making progress in achieving the agreed objectives for financial, and particularly bank, regulation. Continue reading "An Unsafe Financial System"
When Amazon announced that it was expanding its Dash Button Program, its stock went up 2.3%. Amazon’s Dash button refers to a wi-fi enabled device that can be attached to a cupboard or refrigerator and allows a customer to order a specific item, such as more laundry detergent, simply by pressing the button. While some wondered whether consumers really needed this, others wondered whether the law was ready for this. As recent events reveal (such as the tragedy of Tesla’s self-driving automobile accident), technology is raising legal questions more quickly than lawmakers can anticipate or respond to them. In her article, Contracting in the Age of the Internet of Things: Article 2 of the UCC and Beyond, Stacy-Ann Elvy considers whether contract law is ready for the Internet of Things, and concludes that the answer is a regretful but resounding No. Contract law is woefully behind the times when it comes to dealing with issues raised by the Internet of Things (“IOT”). Elvy does a frightfully good job of identifying some of the potential problems—are such devices agents? (Probably yes). How should courts assess consumer assent when contracts are entered into through IOT devices? (It’s complicated). Perhaps most frightening of all—won’t the “legion of data” generated by the IOT worsen the preexisting information asymmetry in favor of companies? (Certainly).
Elvy’s article makes three primary arguments. First, where IOT devices enter into contracts on behalf of consumers, existing laws regulating e-commerce may not adequately protect consumers. Second, Article 2 of the UCC and contract law generally are ill-equipped to deal with the IOT. Finally, information asymmetries, exacerbated by the data generated by the IOT, will shift the power balance even more in favor of companies. Elvy makes certain proposals to recognize and respond to these changes in the contracting environment brought about by the IOT. Her proposed changes to Article 2 include prohibiting post-contract formation disclosure of terms in consumer IOT contracts, prohibiting the use of unilateral amendments and defining unconscionability to include high levels of information asymmetry. Elvy also recommends that courts consider the extent to which consumers can access and control the data which they generate. Her proposals are exhaustive and thoughtful and well-worth a read. A short review does not do them justice. Continue reading "Is Contract Law Ready for the Internet of Things?"
Hannah J. Wiseman, Negotiated Rulemaking and New Risks: A Rail Safety Case Study
, Wake Forest J.L. & Pol’y
(forthcoming 2017), available at SSRN
Hannah Wiseman’s insightful case study has forced me to rethink my views both on negotiated rulemaking and, more broadly, on all forms of notice and comment rulemaking. Negotiated rulemaking (Reg-Neg) adds one important step—negotiation—to the familiar notice and comment process. Reg-Neg got a lot of attention, both positive and negative, a quarter of a century ago. Many agencies experimented with the process. The D.C. Circuit expressed its approval of Reg-Neg in its 1988 opinion in NRDC v. EPA, 859 F. 2d 156, and Congress legitimated the process by enacting the Negotiated Rulemaking Act of 1990, 5 U.S.C. §§ 561-570.
After attracting an initial flurry of scholarship—pro and con—and after an initial period in which many agencies tried the process, Reg-Neg seemed to disappear both from the scholarly literature and from agency practice. Professor Wiseman has found, and studied, an important context in which Reg-Neg continues to be used, with results that do not fit well with either the views of its supporters or its detractors. Continue reading "Rethinking Negotiated Rulemaking"
In Accommodating Pregnancy, Professor Bradley Areheart takes on the ambitious project of evaluating the current law of pregnancy discrimination in the workplace. Professor Areheart reviews the existing proposals to “accommodate” pregnancy under workplace laws, disagreeing with any characterization of pregnancy as a disability. The article suggests alternative ways of providing these same types of accommodations while avoiding the “disability” label. It is also one of the first published works to examine the Supreme Court’s recent decision in Young v. UPS – a case alleging pregnancy discrimination in the workplace that has generated substantial discussion and debate among legal scholars.
Courts and litigants have struggled for decades with how to formulate the rights of pregnant employees in the workplace. Professor Areheart begins by examining the various protections afforded by the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). In place of treating pregnant workers as disabled or advancing pregnancy-specific accommodation rights, Professor Areheart suggests a different model. Under this new approach, he identifies alternatives that would not present the same risks he identifies for disabled workers yet would still provide important accommodations to pregnant employees. The approach considers accommodation law from a more “gender-symmetrical” point of view. Continue reading "Pregnancy, Accommodation, and the Workplace"
Where Marie Kondo taught us how to declutter our homes in The Life-Changing Magic of Tidying Up, Professor Wendy Gerzog provides in her article six proposals to declutter the estate tax. Author Kondo suggested that we examine each household item, ask whether it sparks joy, and then keep it only if we answer yes. Professor Gerzog writes that the estate tax should be more “reality-based,” meaning that the estate tax “should encompass testamentary property transfers at their real values, and the marital and charitable deductions should reflect actual marital and charitable transfers.” (P. 1037.) In her wide-ranging and thought-provoking article, Professor Gerzog examines certain “devices and distortions that have crept into the estate tax” (P. 1037.), discusses how each frustrates the goal of the estate tax, and then provides proposals to clear them from the estate tax.
The first device examined is the irrevocable life insurance trust (ILIT), the life insurance proceeds of which are excluded from the decedent’s gross estate. Professor Gerzog has two proposed changes as to ILITs, the first being to amend § 2035 to “include in decedent’s estate the full date of death proceeds of life insurance on the decedent’s life to the extent to which the decedent has paid, directly or indirectly, insurance premiums within three years of his death” (this proposal is intended to include “any transfers by decedent to a trust within three years of death that in fact can be traced to the payment of life insurance premiums on decedent’s life”). (P. 1042.) Professor Gerzog’s second proposal is to amend § 2042 such that, except when surviving partners in a business partnership use insurance proceeds to buy a deceased partner’s interest in the partnership, the decedent’s gross estate includes life insurance proceeds paid on decedent’s life to the extent to which the decedent at any time, directly or indirectly, paid the premiums on or irrevocably designated the beneficiary or beneficiaries of the policy. (P. 1043.) Continue reading "Decluttering the Estate Tax"
The ABA Journal has once again named Jotwell to its ‘Blawg 100’ list of “most compelling” legal blogs.
This designation is especially meaningful given the source. Jotwell is structurally an academic project in which academics write about the work of other academics. It is thus particularly affirming and noteworthy that the ABA Journal — whose audience is mostly practitioners — finds that what we are doing here is or should be of interest to the bar. (Needless to say, we agree!)
James Goudkamp & John Murphy, The Failure of Universal Theories of Tort Law
, 21 Legal Theory
47 (2015), available at SSRN
Richard Posner has claimed that tort law is best understood as a means of incentivizing actors to take cost-efficient precautions against inflicting losses on others. “Not so!” says Ernest Weinrib, who insists that tort is an embodiment of corrective justice. Against both, Robert Stevens maintains that tort law defines and vindicates rights we have against each other. How are we to decide which of these theories, if any, offers the best interpretation of tort law?
In their provocative article, The Failure of Universal Theories of Tort Law, Professors Goudkamp and Murphy make a basic, important, yet oft-ignored point: to assess the validity of an interpretive theory, one must be clear on the object of interpretation. About what body of law are Weinrib, Posner, and Stevens theorizing? What permits these and other interpretive theorists to claim support from, or to dismiss as erroneous, decisions issued by American, Australian, Canadian, and English courts? Until we answer this question, we can’t assess whether any of them have offered fitting interpretations. Continue reading "I Can Explain That"
Emily Satterthwaite, Tax Elections as Screens
, Queen’s L. J.
(forthcoming 2016), available at SSRN
The concept of “screening” taxpayers is theoretically appealing. According to optimal tax theory, our tax system should impose tax liability based on ability, which is a characteristic that reflects relative well-being. However, since ability cannot be directly observed, the tax system has to rely largely on income, a presumed surrogate of ability, as a tax base. The problem is that income is easily manipulable, making the tax system an inefficient tax on ability. Screening is a potential, partial solution to this problem. Screening involves relying on other characteristics that are more revelatory of ability. For instance, as it turns out, height is surprisingly strongly correlated with earning ability. However, as theoretically appealing as screening may be, the discussion of it is generally politically unrealistic enough, or sufficiently divorced from the realities of the actual tax system, to make it a largely academic exercise.
In Tax Elections as Screens, Emily Satterthwaite gets beyond the theoretical possibilities of screening taxpayers. She does so by examining how an existing tax election—the election to itemize deductions—can serve as a screening mechanism. By examining how screening may work in our actual tax system, Satterthwaite offers an important contribution that has few companions in what is a largely theoretical field. Continue reading "Real-World Tax Screening"
Jonathan Klick & Gideon Parchomovsky, The Value of the Right to Exclude: An Empirical Assessment
, 165 U. Pa. L. Rev.
(forthcoming 2016), available at SSRN
The concepts of exclusion and access occupy the minds of many property scholars. We regularly debate the problems with, and benefits of, exclusion. We talk about how foundational the right to exclude is, and should be. We talk about whether and when the right to exclude should bend to accommodate other interests. And we talk about the value of exclusion. While these debates have filled many pages in law journals and hours of panel discussions, Professors Jonathan Klick and Gideon Parchomovsky noticed that something was missing from the discourse: empirical evidence.
They seek to fill that void with The Value of the Right to Exclude: An Empirical Assessment, forthcoming in the University of Pennsylvania Law Review. The authors undertake their analysis by examining the effect of the passage of right-to-roam laws in England and Wales on property values (P. 5 n.18), perhaps motivated to quantify Professor Henry Smith’s statement that “giving the right-to-roam stick to a neighbor or to the public affects the value of the remaining property.” These laws give members of the public some recreational access—for activities like walking and hiking—to some private property. Klick and Parchomovsky’s article suggests that even small limitations on the right to exclude that result from right-to-roam laws can significantly decrease property values. Continue reading "Access, Exclusion, and Value"