The Definition of Suspicion in an Era of Modern Policing

Jane Bambauer, Hassle, 113 Mich. L. Rev. 461 (2015).

Every Fourth Amendment scholar is familiar with the concept of “individualized suspicion.” The classic example comes from Terry v. Ohio, where Officer McFadden watched two men walk up and down in front of a storefront numerous times, consult with another individual, and then return to checking out the storefront. The Supreme Court held that, while McFadden did not have probable cause for arrest, he had a “particularized” belief that the three men were up to no good and thus could stop them and, when they gave unsatisfactory answers about their activity, frisk them as well.

That type of case is often contrasted with what are sometimes called “suspicionless” searches and seizures. The classic example of that type of police action is the license or sobriety checkpoint that stops individuals who drive up to it. The Court has indicated that such seizures are permissible despite the absence of suspicion that any particular driver seized has an expired license or is drunk, as long as the police stop everyone who comes to the checkpoint or rely on neutral criteria in deciding whom to stop (such as whether the car occupies a pre-selected position in line). Continue reading "The Definition of Suspicion in an Era of Modern Policing"

 
 

The Irrepressible Myth of SCOTUS

Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016).

In The Case Against the Supreme Court, Erwin Chemerinsky explains why he is disappointed in the Supreme Court and its failure to function as it is designed—as a countermajoritarian check on society’s worst majoritarian impulses, protecting individual rights from popular encroachment and offering a venue to minorities shut out of success in the political process. Commenting on the book, Corinna Lain argues that the source of Chemerinsky’s disappointment is his expectation that this is the Court’s function. And, she argues, the source of that expectation is the Supreme Court itself. On Lain’s telling, every case in which the Court is perceived to have “failed” in its countermajoritarian role actually reflects the Court’s success in furthering the story (I might label it a “myth”) of what it does, what it should be, and what many scholars (I would put myself in this group) hope and expect it to be.

Lain focuses on three cases routinely disparaged as judicial failures–Plessy v. Ferguson (upholding segregated railroad cars and, by extension, Jim Crow laws), Buck v. Bell (upholding forced sterilization programs), and Korematsu v. United States (upholding the exclusion of people of Japanese ancestry from the West Coast). All are uniformly recognized today as among the most grievous examples of the Court failing to protect individual rights and vulnerable minorities. Continue reading "The Irrepressible Myth of SCOTUS"

 
 

Concrete Suggestions Around Conflict Minerals and Corporate Supply Chains

Galit Sarfaty, Shining Light on Global Supply Chains, 56 Harv. Int’l L. J. 419 (2015).

Supply chains. Not too long ago, I found myself nodding wisely along when someone was talking about them. The truth is that my nodding signaled only that I recognized their significance as components of the modern global economy, and as objects of legal study. In no way did my nodding signal that I actually knew much about them.

These are the things I do know about supply chains: they are important; they are complex and present complex challenges; their trans-border nature makes them hard to regulate; and bad things regularly happen in developing countries, at the ends of supply chains that provide goods many of us have come to rely on. Things I don’t know about supply chains: above all, I don’t know in precise terms just how inadequate existing legal regimes – domestic, transnational, public, or private – are in dealing with supply chain problems; where the shortcomings are and the precise consequences of those shortcomings; and whether I should be hopeful or despondent about the prospect of addressing them.

Happily, Galit Sarfaty has shone new light into one aspect of supply chain regulation, through something I do know a bit about: disclosure-based securities regulation. In the process, she has illuminated the potential of domestic law in addressing the use of conflict minerals within corporate supply chains, and the significant limits of corporate conduct on the matter to date. Continue reading "Concrete Suggestions Around Conflict Minerals and Corporate Supply Chains"

 
 

Getting it Wrong on Right to Counsel, By the Numbers

Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 64 U. Pa. L. Rev. 1 (2015).

I admit it. I’m a data geek. Not that I produce any of it myself—regression analysis makes my hair stand on end—but I am really good at admiring the work of people who are really good with data. And the data I really like (lots) sheds light on issues we all really care about. Presumptuous of me, you might think, to think I know what you care about. But don’t you care about lawyers?

You will, if you don’t, after you read Ingrid Eagly and Steven Shafer’s A National Study of Access to Counsel in Immigration Court. Before delving into it, recall Judge Richard Posner’s less-than-oblique critique of the immigration bar in 2015:

There are some first-rate immigration lawyers, especially at law schools that have clinical programs in immigration law, but on the whole the bar that defends immigrants in deportation proceedings … is weak—inevitably, because most such immigrants are impecunious and there is no government funding for their lawyers.

Eagly and Shafer begin where Judge Posner left off—with the story of the momentum toward establishing a first-rate public defender system for poor immigrants facing deportation. Judge Robert Katzmann, Peter Markowitz, Stacy Caplow, and Claudia Slovinsky led the most prominent of these efforts, which culminated in the New York Immigrant Family Unity Project. That project provides detained New Yorkers with representation in removal proceedings at state expense. And what convinced the New York state legislature to support such a scheme, aside from Judge Katzmann’s gravitas and Stacy Caplow and Peter Markowitz’s irresistible charm? Continue reading "Getting it Wrong on Right to Counsel, By the Numbers"

 
 

Jotwell Is Now Indexed on HeinOline

Jotwell is now indexed on HeinOnline. This includes all reviews since we started publishing in October 2009.

 
 

Disclosure about Disclosure

Margaret B. Kwoka, FOIA, Inc., Duke L.J. (forthcoming 2016), available on SSRN.

Congress may be gridlocked on many issues, but both parties are working hard to strengthen the Freedom of Information Act. Motivations differ, of course. According to the New York Times, Republicans are displeased with the State Department’s response to requests for then-Secretary of State Hillary Clinton’s emails while Democrats favor a stronger transparency statute.

Margaret B. Kwoka’s forthcoming article, FOIA, Inc., in the Duke Law Journal already has a place in the policy discussions (and in the NY Times). It should also have a place in research and teaching in Administrative Law. I am a strong proponent of teaching something about FOIA in the core Administrative Law class, focusing on its potential use as an oversight mechanism and as an information tool in the many cases that are excluded by the Federal Rules of Civil Procedure and the presumption of regularity from discovery. I warn students, however, that they should not be swayed by tales of disinfecting sunlight, mentioning briefly old studies about the use of FOIA by private parties to get information about other private parties. Continue reading "Disclosure about Disclosure"

 
 

A Cure for Just-In-Time Scheduling

Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan, Stabilizing Low-Wage Work: Legal Remedies for Unpredictable Work Hours and Income Instability, 50 Harv. C.R.-C.L. L. Rev. 1 (2015) available at SSRN.

Many readers were introduced to the concept of “just-in-time scheduling” when the New York Times explored the exhausting and chaotic work life of a Starbucks barista in August 2014. But the practice is certainly not limited to Starbucks. In response to this broader trend, groups like “OUR Walmart” are calling not only for higher wages and more full-time jobs, but for predictable and dependable scheduling, and left-leaning states and cities are beginning to mandate predictable work schedules for at least some workers. This emerging locus of advocacy and media attention is also the subject of Stabilizing Low-Wage Work, a great new article by Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan. The article analyzes comprehensively not only the problem of “just-in-time” scheduling for low-wage workers, but also the potential for either collective bargaining or state and local law to solve that problem.

Adapted from the practice of just-in-time manufacturing, just-in-time scheduling refers to the now-common practice of adjusting staffing levels in response to current conditions. While it is a problem for workers with many types of jobs, it has particularly taken hold in the service sector where, the article reports, “almost 30 percent or workers” have schedules with “variable start and end times.” Moreover, as the article shows, modern technology has made just-in-time scheduling attractive; employers can monitor and anticipate customer demand in close to real-time, sending workers home or canceling their shifts altogether if potential customers are staying home. Conversely, employers may want to call people in at a moment’s notice; this requires employees to wait by the phone, but seldom results in on-call pay. Federal law, particularly the Fair Labor Standards Act, does little to address this problem; when that law was drafted, the greater problem was that employers frequently demanded excessively long hours from workers. Continue reading "A Cure for Just-In-Time Scheduling"

 
 

Add Probating Your Will to Your Bucket List

Susan G. Thatch, Ante-Mortem Probate in New Jersey—An Idea Resurrected?, 39 Seton Hall Legis. J. 331 (2015).

Ante-mortem probate addresses a glaring deficiency with the post-mortem probate model prevalently used in the United States. In post-mortem probate contests the key witness—the testator—is deceased, leaving the courts with only indirect evidence of the testator’s capacity and freedom from undue influence. The relative ease with which individuals dissatisfied with the testator’s choice of beneficiaries may manipulate this indirect evidence encourages spurious will contests. In ante-mortem probate the testator executes a will and then asks for a declaratory judgment ruling that the will is valid, that all technical formalities were satisfied, that the testator had the required testamentary capacity to execute a will, and was not under undue influence. The beneficiaries of the will and the heirs apparent are given notice so they may contest the probate of the will. In addition to providing greater certainty to the testator of the will’s validity, the procedure makes will contests less likely. But ante-mortem probate is not without its price: The ante-mortem process may be extremely disruptive to the testator and the testator’s family. The testator may not wish to disclose the contents of the will nor to face the potential embarrassment that may occur if testamentary capacity is litigated. It involves additional costs and may raise due process and conflict of laws problems.

Susan G. Thatch’s article concisely discusses the advantages and disadvantages of implementing an ante-mortem probate statute in New Jersey and, by analogy, in any state. The article focuses on the debate of whether allowing ante-mortem probate is useful to testators or harmful to families by reviewing the ante-mortem probate model currently used by five states, as well as other models which scholars have suggested. The article takes the view that if the suggested statute is implemented, it should supplement instead of supplant traditional probate options already available to New Jersey citizens. Figuring out the best way to ensure peace of mind for the testator while fully considering the arguments for and against an ante-mortem probate statute forms the foundation of the article. Continue reading "Add Probating Your Will to Your Bucket List"

 
 

Tort Law in the Laboratory

Theodore Eisenberg and Christoph Engel, Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13 J. Empirical Legal Stud. 116 (2016), available at SSRN.

Empirical study of the law is important, particularly for tort law. Fundamental components of the tort system are a “black box,” which largely explains why the field is riven by theoretical disagreement over the purpose of tort law. The claim that tort law efficiently reduces accident costs, for example, critically depends on the extent to which the threat of tort liability deters risky actors from behaving inefficiently. The available data on accidents, however, do not directly measure the relationship, no doubt because the injury rate is affected by a large number of other interrelated factors such as changes in wealth and technology that are extraordinarily hard to disentangle, making it extremely difficult to identify the impact that tort liability has had on actual accident rates. To isolate the influence of particular factors such as the threat of tort liability, empirical study must instead turn to the laboratory, where researchers can conduct experiments that are designed to tease out the role of the varied factors that plausibly explain the accident rate—an excellent example of which is provided by Theodore Eisenberg and Christoph Engel in their article, Unpacking Negligence Liability: Experimentally Testing the Governance Effect.

As persuasively argued by Frederic Schauer in The Force of Law (2015), important jurisprudential questions depend on the particular reasons why individuals comply with the law. In particular, individuals often have independent normative reasons for acting in the manner otherwise required by the law, in which case the law itself is not motivating the behavior. “Until we can understand the different ways in which law intersects with its subjects’ law-independent preferences, we cannot begin to understand the role of incentives and coercion in motivating legal compliance.” (P. 100.) The experiment conducted by Eisenberg and Engel was designed to address exactly this type of problem. Continue reading "Tort Law in the Laboratory"

 
 

Sex Discrimination: The Future of LGBT Rights?

For several decades, scholars, lawyers, and judges have debated whether laws against same-sex marriage are a form of discrimination based on sex. Most recently, during the oral arguments in Obergefell v. Hodges, Chief Justice Roberts asked whether it was “necessary to get into sexual orientation to resolve this case,” given that the challenged marriage laws treated couples differently based on their sex: “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”1

For a long time now, the sex discrimination argument for LGBT rights has been a darling of law professors, thoughtfully developed over the years by several of the legal academy’s leading minds.2 Unfortunately, it has not fared so well among judges. Although plaintiffs have been advancing this argument since the 1970s,3 only a handful of trial and appellate judges have endorsed it.4 Notwithstanding the Chief Justice’s remark at oral argument, the sex discrimination argument was not specifically addressed in Obergefell itself.5 After Obergefell, legal scholars are left to wonder what, if anything, will come of the hard work that so many have devoted to this subject for so many years. In her recent essay, Risky Arguments in Social-Justice Litigation, Suzanne Goldberg takes up the question of why courts have been so reluctant to adopt the sex discrimination argument in same-sex marriage cases. Continue reading "Sex Discrimination: The Future of LGBT Rights?"

 
 

Putting a Face to International Tax Avoidance

Omri Marian, The State Administration of  International Tax Avoidance, 7 Harv. Bus. L. Rev. (forthcoming, 2016).

The world of international tax avoidance is a colorful one. There are the legal structures, with names like the “Double Irish Dutch Sandwich,” the exotic locales, like Bermuda and the Cayman Islands, and the identity crises presented by “hybrid” entities and financial instruments. But rarely does international tax avoidance have a human face and one could be forgiven for getting the impression that falling effective corporate tax rates are as inevitable as water flowing downhill. Corporations, acting in the interests of their shareholders, maximize their after-tax profits. States, acting in the best interests of their residents, set tax policies that are incongruous with the policies of other states. The “bad actors,” if there are any in this story, are corporate aggregates of one sort or another, multinational corporations and tax haven countries.

But the LuxLeaks scandal has given us one human face that stands out from the crowd of aggregates. This is the face of Marius Kohl or “Monsieur Ruling,” the former head of the Luxembourg agency, who gave rulings to taxpayers on the tax treatments of their proposed transactions. In The State Administration of International Tax Avoidance, Omri Marian does a wonderful job of explaining how this one bureaucrat acted to facilitate massive tax avoidance by engaging in “arbitrage manufacturing.” Marian argues that rogue individuals pose an ongoing threat to international tax cooperation. His paper clearly explains how arbitrage can be manufactured, documents how it was done in Luxembourg, and draws from the LuxLeaks episode an important lesson about the need to integrate micro reforms of tax administration into the macro project of international tax harmonization efforts. Continue reading "Putting a Face to International Tax Avoidance"