Violence, Yearning, and Hope

If you seek inspiration in these times of debilitating negativity toward the law and lawyers, read Gilbert King’s Devil in the Grove. A student who represents the best in the law’s future gave me the book. The gift was far greater than the bound pages or the pleasure of an engrossing weekend. It was a renewal of awe at what the law and lawyers can do to rescue people and change hardened minds and hearts in atmospheres of fear, loathing, and violence.

After Devil in the Grove has inspired you with its excellent history of our recent past, I recommend reading works by two outstanding junior scholars, Allegra M. McLeod and Daniel I. Morales, who are imagining our future. What I love about all three works are the accounts of how law can save as well as destroy and the lessons about how to change mindsets, not just the laws on the books. Continue reading "Violence, Yearning, and Hope"

 
 

Discovery and Democracy

Gillian K. Hadfield & Dan Ryan, Democracy, Courts and the Information Order, 54 European J. of Sociology 67 (2013), available at SSRN.

Discovery has a bad name, and the reason for that is something of a mystery. It certainly isn’t careful empirical evidence. Decades of research have consistently demonstrated that discovery is used appropriately and that in the vast majority of cases its costs are proportionate to the stakes in the lawsuit. Most recently, the Federal Judicial Center’s 2009 study of thousands of closed cases (chosen to maximize the likelihood of discovery) found that at the median, the reported costs of discovery, including attorney’s fees, was just 1.6% of stakes of the case for plaintiffs and only 3.3% for defendants. Discovery’s benefits are harder to quantify, but mutual access to relevant information surely leads to case outcomes that more accurately reflect legal norms. Yet the Advisory Committee on the Civil Rules is once again proposing rule amendments that would limit discovery.

The public discovery debate focuses almost entirely on the instrumental value of discovery to litigants. There are, however, other significant reasons for using the power of courts to compel information exchange. Judicial process as process is crucial to the legitimacy of the legal system because citizens must perceive it to be trustworthy and fair. Hadfield and Ryan’s Democracy, Courts, and the Information Order articulates how the discovery process is fundamental to American democracy: civil courts serve as a place where litigants are formally treated as equals in their ability to demand the sharing of relevant information, even from entities with far more political or economic power in society. The experience of participating in the discovery process is thus part of the “phenomenology of democracy”– the lived experience of being treated as an equal among equals. (P. 88-89.) Continue reading "Discovery and Democracy"

 
 

Drama and Consequence in Accounting Standards Choice (Seriously)

The value of interdisciplinary work is on display in this article by two Dutch policy scholars: the subject matter is accounting rules for financial instruments, but it spans public policy and regulation in a way that is also of interest to scholars of law and regulation. (Full disclosure: I am an editor of Regulation & Governance, though I was not involved in this article’s editorial process.)

Mügge and Stellinga discuss the choice between the two main accounting standards (fair value accounting, or FVA, and historical cost accounting, or HCA), across three policy-making moments between 1997 and 2013, in terms of two dominant explanatory theories for policy change—neither of which turns out to be convincing. What emerges is a sense of how accounting regulators, specifically the EU’s Accounting and Regulatory Committee (ARC), put in place unstable sets of accounting standards for financial instruments that were neither exactly what banks wanted, nor what the International Accounting Standards Board (IASB) as standard-setter wanted. Nor is this simply a case of a regulator ‘splitting the baby’ between competing interest groups. Continue reading "Drama and Consequence in Accounting Standards Choice (Seriously)"

 
 

The Battle Between Law and War

Deborah N. Pearlstein, Law at the End of War, 99 Minn. L. Rev. — (forthcoming 2014), available at SSRN.

The United States has formally fought a “war on terror” since 9/11, but a key question is whether it will ever end. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), for example, the U.S. Supreme Court essentially pronounced that enemy combatants in Guantanamo could be held for the “duration of hostilities.” It is not clear, however, when that will occur, especially since the war is principally against a non-state group, Al Qaeda, bent on terrorizing the U.S. for as long as the group survives. As Professor Deborah Pearlstein shows in her important new article, Law at the End of War, U.S. Supreme Court decisions contain language that has been interpreted to mean that when a war ends is a political question. Marshaling U.S. Supreme Court precedents, international law, the related law of armed conflict, and public policy interests, Pearlstein argues persuasively to the contrary.

One of Pearlstein’s central arguments is that the judiciary has long been willing to decide when a war has ceased. These determinations have major legal consequences, since war triggers the applicability of important statutes and conventions. For example, she counters conventional views regarding The Prize Cases, 67 U.S. 635 (1863), where the question was whether President Lincoln had the “right” to impose a naval blockade on southern ports after the Confederacy attacked Fort Sumter in 1861. While the Court said it “must be governed by the decisions and acts of the political department of the Government” on the question of “what degree of force the crisis demands,” she convincingly asserts that this simply means Lincoln had the power to decide to shoot back. The Court did not exclude itself from deciding whether war existed in light of the President’s actions. Indeed, the Court rejected executive branch arguments that it must abstain from such assessments, as a matter of international law, unless Congress formally declared war. Continue reading "The Battle Between Law and War"

 
 

Unifying the Not-So-Unitary Executive

Jason Marisam, The President’s Agency Selection Powers, 65 Admin. L. Rev. 821 (2013), available at SSRN.

Jason Marisam’s recent article on what he calls presidential “agency selection powers,” The President’s Agency Selection Powers, 65 Admin. L. Rev. 821 (2013), provides new insight into a president’s capacity to shape regulatory policy even without relying on a so-called “unitary executive” reading of the Constitution.

Should a history of arcane legal debates ever be written, perhaps authors will mark the so-called “unitary executive” debate as one of the strangest. Technically, the controversy centers on whether the President is constitutionally entitled to dictate how all other executive branch officials exercise whatever discretionary functions are vested in them by statute. I have argued that the Constitution embodies no such principle.1 On the other hand, scholars as otherwise unalike as Steve Calabresi and Cass Sunstein have urged—on originalist and nonoriginalist grounds, respectively—to the contrary.

This sounds like a big deal, and it is—in principle. But the main significance of the doctrine is primarily its potential impact on the ethos of executive power. If the small-“u” unitarians are right, then executive officers are likely to attend as diligently to the president’s policy preferences as they do the laws enacted by Congress. In contrast, my negative response to the question is intended as an institutionally potent reminder that much of what the executive is allowed to do is entirely at Congress’s sufferance. Administrative power under this view ought to be exercised in a conscientious, well-reasoned way, as attentive to law as to politics. Any Administration’s view of the “unitary executive” theory is likely to be an important mood-setting device for governance, pointing in one direction or the other. Continue reading "Unifying the Not-So-Unitary Executive"

 
 

On Managerial Justice and the Anti-Discrimination Project

Nancy Gertner, The Judicial Repeal of the Johnson/Kennedy Administration’s ‘Signature’ Achievement (forthcoming, 2014), available at SSRN.

The extensive research showing that employment discrimination plaintiffs fare significantly worse than plaintiffs in other kinds of cases in federal court at every possible stage of litigation is well known at this point. Scholars like Ted Eisenberg, Kevin Clermont, and Stewart Schwab have thoroughly documented the disparity. Building from this work, other scholars have focused on why employment discrimination cases are different. Some have chalked the change up to changes in employer behavior, labeling current forms of discrimination “subtle” rather than “overt.” Others have mapped doctrinal drift between the goals of the statutes when they were initially enacted and their current applications. Still others have linked the drift and plaintiffs’ disproportional losses to the liberal use of summary judgment and the change in rules to pleading standards under Twombly and Iqbal. Most scholars are able only to theorize on the causes as they document these changes, but Nancy Gertner, a Professor of Practice at Harvard and former United States District Court Judge, has offered important new insights on why it is that employment discrimination cases fare worse than other kinds of cases.

Judge Gertner’s most recent article on the subject is The Judicial Repeal of the Johnson/Kennedy Administration’s Signature Achievement. In it, she identifies five potential causes of this phenomenon: 1) judges may believe that discrimination doesn’t exist anymore; 2) more discrimination cases are frivolous; 3) good cases are taken to state courts because state law is less employer friendly; 4) the Supreme Court has narrowed the law in a way that protects employers; and 5) the pressures on judges create and perpetuate biases against these cases. Based on her own experiences and others’ studies of judicial decisions, Gertner concludes that ideology, particularly as communicated by the Supreme Court in its decisions, plays some role, but that the greatest cause of the disparity is the pressure on judges to manage their caseloads and the ways that the effects of those pressures magnify the ideological factors. Continue reading "On Managerial Justice and the Anti-Discrimination Project"

 
 

Navigating the Complexities of Assisted Reproductive Technology

Kristine S. Knaplund, Assisted Reproductive Technology: The Legal Issues, Prob. & Prop. Mag., Mar./Apr. 2014, at 48.

Kris Knaplund is one of the leading American scholars in the area of postmortem conception and its theoretical and doctrinal implications for the field of inheritance law. In her article, Assisted Reproductive Technology: The Legal Issues, Knaplund lays out the complex planning issues that arise in a variety of scenarios involving Alternative or Assisted Reproductive Technology (ART). This clear and succinct article is a must read for professors, practitioners and students alike. Knaplund educates readers about the increasing number of situations and clients that involve ART, ranging from a trust beneficiary who is planning to use a gestational surrogate to a hospital faced with the widow of a recently deceased man who wants to harvest his sperm to have future children.

Knaplund begins by defining assisted reproductive technology as “the handling of gametes (sperm or ova) outside the human body in order to achieve a pregnancy.” She notes that the three most common forms of ART are assisted insemination, in vitro fertilization, and gestational carriers. She then proceeds to illustrate the kind of legal issues that attach to each of the three forms. For example, in assisted insemination (more commonly known as artificial insemination) the sperm donor is typically not the legal father if the sperm has been given to a licensed physician. But if a donor dispenses with the physician and donates directly to the intended mother, the statutory safe harbor no longer applies. Knaplund outlines several state cases including Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Ct. App. 1986) where that scenario results in the sperm donor being declared the resulting child’s legal father. Continue reading "Navigating the Complexities of Assisted Reproductive Technology"

 
 

Do No Harm: Misdiagnosing Informed Consent

Erin L. Sheley, Rethinking Injury: The Case of Informed Consent, BYU L. Rev (forthcoming), available at SSRN.

For quite some time, the large majority of informed consent cases have been handled under a negligence rubric, the central issue being whether the physician’s disclosure of risks to the patient was reasonable, as measured either by the reasonable patient standard, or in some jurisdictions, the standard of the profession. The battery cause of action has now been relegated to a minor role. It only surfaces in cases in which the physician does not simply fail to give adequate information about the costs and benefits of an agreed-upon procedure, but has completely failed to secure the patient’s consent, for example, by operating on another body part or performing a tubal ligation following a C-section. The battery claim is so marginalized that the A.L.I., in the Restatement (Third) of Intentional Torts to Persons, is currently debating whether to limit the scope of battery/informed consent claims even further, perhaps requiring the patient to prove that her doctor knowingly exceeded her consent before allowing recovery for battery.

Going against the grain, Erin Sheley’s new article argues that the negligence framing of informed consent claims loses sight of the dignitary aspects of the claim that the battery cause of action captured so well. This overreliance on the negligence framing of consent claims creates “a class of factually injured patients who have no remedy under current law.” Sheley starts with an example of a breast cancer patient who was under the impression that she was to receive a biopsy on a lump in her breast. However, when the physician determined that her tumor was malignant, he decided to go ahead and perform a mastectomy in an effort to stop the cancer from spreading. Putting aside whether such a patient might possibly recover for battery under the current restrictions, Sheley argues that the patient in such a case has suffered a real injury, even if it turns out the physician made the right call from a medical point of view. The problem with proceeding under the negligence theory is that the plaintiff’s claim will likely fail because she cannot prove that she suffered a physical injury, a necessary element of a negligence claim predicated on lack of informed consent. Continue reading "Do No Harm: Misdiagnosing Informed Consent"

 
 

A Lawyer with a Candlestick in the Conservatory: The Perpetuities Whodunnit

Grayson M.P. McCouch, Who Killed the Rule Against Perpetuities?, 40 Pepp. L. Rev. 1291 (2013).

Ding, dong, the Rule Against Perpetuities is dead. Well, in about half of all states. No longer must property interests vest within “lives in being plus twenty-one years.”  Wealthy individuals can put their money in trust forever. Even better, when that trust is created in a state without an income tax, and the trust assets never become included in the estate of a beneficiary, assets transferred to a perpetual trust remain … perpetually tax-free. What is the explanation behind the rush among states to repeal the RAP, beginning in the mid-1990’s? Professors Robert Sitkoff and Max Schanzenbach, among others, have pointed to the generation-skipping transfer tax as the engine driving repeal. Other theories include settlors’ desires for post-mortem control or creditor protection for beneficiaries. Enter into the conversation Grayson M.P. McCouch with his concise and well-written article, Who Killed the Rule Against Perpetuities? McCouch argues that the repeal of RAP is as much the work of bankers and lawyers as it is of any tax law.

McCouch begins his essay by looking at the use of perpetual trusts before and after the enactment of the generation-skipping transfer tax (and its $1 million exemption) in 1986. Prior to 1986, it was possible to create a perpetual trust in Delaware, Wisconsin and Idaho, albeit via different mechanisms or legal exceptions. Yet those states did not have a lion’s share of the trust business, which McCouch attributes to settlors’ ability to achieve objectives within the perpetuities period of their chosen local jurisdiction and a sense that the tax benefits of creating a trust in Delaware, Wisconsin or Idaho were “incremental” at best. After 1986, the generation-skipping transfer tax inspired a search for ways to avoid technical problems that could arise even in the existing perpetual jurisdictions. (McCouch explains the “Delaware tax trap” problem with such clarity and elegance that the article is worth reading for that single paragraph alone.) Continue reading "A Lawyer with a Candlestick in the Conservatory: The Perpetuities Whodunnit"

 
 

Law in the Conquest of L.A.

Law and conquest are deeply intertwined phenomena. We typically think of conquest as the physically violent and genocidal subjugation of people. But as a process, conquest involves the subjugation of both people and space and the reorganization of people within space. Conquest can only be consolidated, as Chief Justice John Marshall explained in Johnson v. M’Intosh (1823), when it generates new sovereignal claims and legal rights. Law, however, is not merely a consequence of conquest, it is also a constitutive element of it. The re-organization of space depends upon and generates ideas about how people relate to one another within that space, as well as ideas about how space can be owned and used, by whom, and to what purposes.

In Before L.A., David Torres-Rouff explores how Spanish, Mexican, and American migrants conquered Los Angeles by tracing “an interdependent, mutually constitutive relationship between race and space.” (P. 13.) Drawing on critical geography, which draws links between the built environment and social relationships, Torres-Rouff explains how, “In much the same way that race making leads to the formation of new individual and collective identities, place making leads to the transformation of previously neutral spaces into places with particular meanings that contain their own individual and differentiated identities.” (P. 11.) More specifically, he uses this interdependent relationship between race and space to demonstrate how local contests for power over land, labor, and water were integral to the construction of race in early Los Angeles. Continue reading "Law in the Conquest of L.A."

 
 

The Substantive Criteria Underlying Birthright Citizenship

D. Carolina Núñez, Beyond Blood and Borders: Finding Meaning in Birthright Citizenship, 78 Brooklyn L. Rev. 835 (2013).

The Fourteenth Amendment of the United States Constitution grants birthright citizenship to all individuals born within the territory of the United States, with an exception for the children of diplomats. Consequently, the children of unauthorized migrants born in the United States are United States citizens. A number of individuals, including members of Congress, contend that birthright citizenship serves as an incentive for unauthorized migration. As recently as January 3, 2013, the House of Representatives considered a bill that would limit constitutional birthright citizenship to the children of U.S. citizens, lawful permanent residents, and noncitizens serving in the armed forces. Carolina Núñez’s article makes an important contribution to this debate, and to the academic literature on citizenship and membership more broadly, because it offers substantive criteria for determining who should have birthright citizenship in the United States and because it analyzes a variety of proxies for measuring these substantive criteria.

Through an examination of post-American-Revolution cases and the congressional debates for the Fourteenth Amendment, Núñez identifies three substantive factors that have been critical in making membership decisions: mutuality of obligation, community ties, and community preservation. Núñez introduces three models of membership utilized in U.S. law (the territorial model, the status-based model, and the post-territorial model) and assesses each model’s ability to effectively measure the substantive criteria. She concludes that the use of “inaccurate proxies are unavoidable” when assigning birthright citizenship, but that the territorial model offers the most accurate proxy. (P. 857.) Continue reading "The Substantive Criteria Underlying Birthright Citizenship"