Jotwell - The Journal of Things We Like (Lots)

A Textualist Approach to Purposivism in the Regulatory Arena

April 10th, 2013 | Linda Jellum | Administrative Law

Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).

When I returned from the 2013 AALS Annual Meeting, I discovered Professor Kevin M. Stack’s latest article, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012), waiting patiently for me. As someone who teaches both Administrative Law and Statutory Interpretation/Legislation, I picked it up with interest; although, given all that has been written about statutory interpretation, I must confess that I really couldn’t imagine that there would be anything new to say about interpreting regulations. Yet, I remembered that each year, around the time my students realize that they will certainly be tested with a Chevron-like hypothetical on their final exam, I’m asked how to approach the analysis. After they’ve determined that Chevron applies (Chevron step zero), that Congress did not have an intent as to the precise issue before the court (Chevron step one), and that the agency’s interpretation of the statute is reasonable (Chevron step two), I have always told them that the final step is simply to apply the regulation to the fact pattern using the traditional tools of statutory interpretation. Was my direction wrong? I wondered.

Lest I hold you in suspense, let me explain Professor Stack’s thesis immediately. He believes that courts should use regulatory purposivism to interpret regulations. He defines regulatory purposivism in this way: a court should ask whether an interpretation of a regulation is (1) permitted by the regulation’s text, and (2) consistent with the purposes as stated in the regulation’s statement of basis and purpose (and/or text). If a court answers yes to both questions, then the interpretation is “reasonable,” “permissible,” “plainly” right, at essence, controlling. (If I may digress, I wondered, was he advocating a new two-step deference approach? God forbid!) He suggests that courts should not give meaning to a regulation that the text will not bear, but he adds that neither should courts give a regulation a meaning that the written statement of basis and purpose will not bear. In essence then, he advocates for a text-based approach to purposivism! Continue reading "A Textualist Approach to Purposivism in the Regulatory Arena"

The Uncertain Impact of Wal-Mart v. Dukes

April 9th, 2013 | Michael C. Harper | Worklaw

Elizabeth Tippett, Robbing a Barren Vault: the Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, 29 Hofstra Lab. & Emp. L. J. 433 (2012).

Melissa Hart, Civil Rights and Systemic Wrongs, 32 Berk. J. of Emp. & Lab. Law, 455 (2011).

Michael C. Harper

It has been less than two years since the Supreme Court’s controversial decision in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). During this short period the Court’s opinion has been interpreted by numerous lower courts. It also, not surprisingly, has been the subject of a substantial amount of commentary in law reviews and numerous proposals for legislative reform to restore a promise of class action challenges to employment discrimination that the Dukes decision allegedly shattered. Drawing from this commentary, I would choose these two very different articles as useful guides for tracking the impact of Dukes on employment discrimination class action litigation. The articles, in my view, together make the case that at least in the absence of legislative or judicial qualification, the Dukes decision’s 5-4 split holding on the commonality requirement in FRCP 23(a)(2) may have less of an impact than the Court’s unanimous dicta on the limited remedies allowed for Rule 23(b)(2) classes and the unavailability of statistical modeling to facilitate the certification of Rule 23(b)(3) classes. Continue reading "The Uncertain Impact of Wal-Mart v. Dukes"

Succession Law Through an Economic Lens

April 7th, 2013 | Paula Monopoli | Trusts & Estates

Kelly, Daniel B., Toward Economic Analysis of the Uniform Probate Code, 45 Univ. of Mich. J. of Law Reform 855 (2012), available at SSRN.

Paula Monopoli

In his article, Toward Economic Analysis of the Uniform Probate Code, Dan Kelly fills a significant gap in the inheritance law literature. As he notes, a number of scholars have brought the lens of economic analysis to bear on trusts but few, if any, have taken a comprehensive look at intestacy and wills using the tools of economic analysis. Kelly takes on this task and the result is an important contribution to the field.

Kelly begins by tracing the important historical move from formalism to a functional view of inheritance law and gives the reader a succinct synopsis of the work of important inheritance law scholars like John Langbein and Larry Waggoner. He then describes the work of a younger generation of scholars like Rob Sitkoff, who has brought empiricism to trust law in particular. This literature summary is helpful in identifying the scholarly gap in the area of intestacy and wills, i.e., succession law. Continue reading "Succession Law Through an Economic Lens"

Reading to Challenge Your Tax Thinking

April 5th, 2013 | Diane Ring | Tax

Alberto Alemanno, Is There a Role for Cost-Benefit Analysis Beyond the Nation-State?: Lessons from International Regulatory Co-operation, in The Globalization of Cost-Benefit Analysis in Environment Policy (Oxford University Press, 2013) available at SSRN.

Diane Ring

When I seek reading suggestions I am especially interested in recommendations for pieces that might not normally cross my desk. The work I am discussing here, “Is There a Role for Cost-Benefit Analysis Beyond the Nation-State?: Lessons from International Regulatory Co-operation” by Alberto Alemanno, falls into that category. The topic – the legal analysis of international regulatory cooperation regarding non-tariff barriers to trade (e.g., labor, environmental, or health and safety regulation) — is distinctly not tax. But this book chapter, which examines the international convergence in specifying procedures for setting regulatory standards, provided an energizing boost to my own thinking about potential harmonization in the international tax arena through cooperation on a “non-substantive” level. Before discussing why I found this chapter engaging for a tax scholar, a quick overview of the thesis may be helpful.

The article starts from the premise that trade liberalizing goals have pushed states, through the WTO, to reduce trade barriers but that their success has been limited where the trade barriers are in non-tariff form (such as environmental regulations). In that context, states have shifted to what is characterized as convergence with respect to “how” they determine the appropriate substantive regulation to put in place – i.e. “procedural harmonization.” Underlying this shift are two assumptions: (1) it is easier for states to agree to procedures that they will follow in setting these kinds of regulations, and (2) that procedural harmonization can/will lead to harmonization of the ultimate substantive decisions. The author provides examples of such harmonization – the Technical Barriers to Trade Agreement (TBT) established at the end of the Uruguay Round required members to ground their regulatory measures in “international standards, guidelines or recommendations, where they exist” and if not to then either provide a “scientific justification” or “prove the ‘necessity’ of the measures adopted.” The author considers the harmonization via this agreement to be unsatisfactory in stopping nontrade barriers. Therefore, he devotes much of the chapter to arguing in favor of a “procedural” requirement that he contends could further reduce substantive divergence – a requirement of international cost-benefit analysis and transparency. The discussion of how cost-benefit analysis might meet this goal was interesting on its own terms. But I was drawn to the background context in which the entire conversation was taking place – a world in which agreement on substance was difficult, agreement on procedure was easier, and agreement on the latter was expected to generate convergence regarding the former. I have been thinking about these questions in the context of international tax – in particular the shift away from attention to tax competition (which was perceived as seeking agreement on substance – or at least rates) and towards information exchange and disclosure on a grander scale. Continue reading "Reading to Challenge Your Tax Thinking"

Lobbying and the Restatement of Torts

April 3rd, 2013 | Keith Hylton | Torts

Elizabeth Laposata, Richard Barnes, & Stanton Glantz, Tobacco Industry Influence on the American Law Institute’s Restatements of Torts and Implications for Its Conflict of Interest Policies, 98 Iowa L. Rev. 1 (2012).

Keith Hylton

With such a title, how could a tort scholar not want to read the new working paper by Laposata, Barnes, and Glantz? The Restatement plays a very prominent role in tort law; many courts cite its provisions. The thought that the tobacco industry may have influenced its development is unsettling.

The authors present a fair amount of worrisome evidence of efforts by tobacco lawyers to influence the Restatement, especially the Second Restatement, under the direction of Reporter William L. Prosser. The evidence is largely circumstantial. Drafts of various parts appear to change after tobacco lawyers intervene. The final draft of Restatement §402A, on products liability, includes an explicit exemption for “good tobacco.” Continue reading "Lobbying and the Restatement of Torts"

Bargaining with the Soul at Stake: Early Modern Catholic Scholastics and Contract Law

April 1st, 2013 | Richard Ross | Legal History

Wim Decock, Theologians and Contract Law: The Moral Transformation of the Ius Commune (ca. 1500-1650) (Leiden: Martinus Nijhoff, 2012).

Richard Ross

Decock’s judicious and insightful book participates in the rediscovery of the theological foundations of modern Western law. With great precision he uncovers the debt that our contract law owes to early modern Catholic scholastic theologians such as Domingo de Soto, Luis de Molina, Leonardus Lessius, and Francisco Suárez. These writers treated contracts not only as devices for the exchange of property. They understood that contracting involved moral choices that could advance or retard justice and the prospects for the salvation of one’s soul. In order to clarify these ethical dilemmas for Catholic confessors and for laymen wrestling with their consciences, scholastic theologians commented upon the ordinances of their own communities and the Roman law used throughout late medieval Europe (the ius commune). Their works influenced early modern canonists, civilians, and natural lawyers and, through them, left an important mark on modern European and American contract law.

Decock focuses on how the theologians’ speculations led to the rise of the principle of “freedom of contract,” understood as the imposition of legal obligation solely through the consent of the parties. The late medieval ius commune, drawing on Roman law, had allowed the creation of legal obligation through mutual consent only in certain areas, such as sales, leases, and partnership. James Gordley and other distinguished legal historians have noted that scholastics went well beyond this inheritance to craft a generalized, consensualist “freedom of contract.” But why in the sixteenth and early-seventeenth century? The dominant interpretation has been that the acceleration of trade in the early modern period and the stirrings of “market capitalism” invited moral theologians to consider commercial transactions not adequately treated in the ius commune. Although Decock accepts this interpretation as a partial explanation, he innovates by insisting that theologians thought that freedom of contract would facilitate the saving of souls. The greater the realm of freedom among contracting parties, the greater their ability to pursue virtue, accept moral responsibility, and encourage trust—or the reverse. Continue reading "Bargaining with the Soul at Stake: Early Modern Catholic Scholastics and Contract Law"

Life in Prison

March 29th, 2013 | Cary Federman | Jurisprudence

Sharon Dolovich, Exclusion and Control in the Carceral State, 16 Berkely J. Crim. L. 259 (2011).

Cary Federman

The idea of incarceration is not self evident. One can speak of prisons in ancient Greece and Egypt, as well as in medieval Europe, but the largely private nature of the prisons, the arbitrary imposition of penalties and of their length, and the lack of oversight or regard for prisoners’ welfare makes the use of the word prison seem out of place in such contexts. Besides, incarceration was not the primary method of punishment in the classical and medieval world. Banishment, shame, public displays of punishment, fines, and outright executions were regarded as better suited than prisons in making the point that crime will not be tolerated.

The modern era gave us prisons – hierarchical, rational, rule-bound bureaucratic institutions. And with it, a bargain was struck, as Sharon Dolovich writes in her fascinating account of the history and development of the idea of exclusion and control in American prisons. The bargain, according to Dolovich, involves the state’s ability to isolate those who transgress the law and then to ensure that such persons will be kept “apart from society for the duration of their sentences.” (P. 274).

The problem, Dolovich notes, involves the limits and the character of confinement. Why, in the 1990s, did the United States turn to two policy choices, life without parole (LWOP) and the Supermax? What were the evils policymakers in the 1990s were combating? Continue reading "Life in Prison"

Same-Sex Marriage—A Liberty for All

March 27th, 2013 | Clifford Rosky | Family Law

Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality, 49 San Diego L. Rev. 415 (2012), available at The Williams Institute.

Clifford Rosky

For more than twenty years, the constitutionality of laws against same-sex marriage has remained a hot topic among scholars, lawyers, and judges in the United States. This month, the U.S. Supreme Court will finally hear argument on the constitutionality of two such laws—the federal law known as the Defense of Marriage Act and an amendment to the California Constitution known as Proposition 8.

After so many years and so many challenges, it has become increasingly difficult to find arguments and angles on this topic that are genuinely novel. In recent years, it often feels as if the question has been exhausted—as if both sides have already said what is worth saying, and we all are just repeating ourselves, pleading and praying for Justice Kennedy’s vote.

Yet in his recent article, Professor Michael Boucai (Buffalo) manages to stake out a powerful new claim for same-sex marriage—a claim based on homosexual liberty, rather than the equality of lesbian and gay people or the fundamentality of marriage itself. In the article’s opening sentence, Boucai explains: “This Article proposes that same-sex marriage bans channel individuals, particularly bisexuals, into heterosexual relations and relationships, impermissibly burdening the sexual liberty interest protected under Lawrence v. Texas.” Continue reading "Same-Sex Marriage—A Liberty for All"

Sexuality and Legal Consciousness

March 25th, 2013 | Margaret Davies | Equality

Rosie Harding, Regulating Sexuality: Legal Consciousness in Lesbian and Gay Lives (Routledge 2011).

Margaret Davies

Legal consciousness studies is an area of socio-legal research that looks empirically at the narratives of law constructed in people’s everyday lives. It challenges the distinction often made between law and society by illustrating their mutually constitutive relationship. Put simply, not only does law affect individual and collective lives and the nature of social groupings, but social patterns and narratives also constitute the law. Influential work by Patricia Ewick and Susan Silbey made the point emphatically that “legal consciousness” is not only about people’s subjective experiences of law, but also about how people live the law, how they interpret, use, and resist law, and how they embed those meanings in their practical everyday settings.

In Regulating Sexuality, Rosie Harding takes the concept of legal consciousness in two new directions. First, she integrates it with legal pluralism, and in particular the critical legal pluralism which also defines legality by reference to everyday meaning-making and practice. Secondly, she undertakes an extensive empirical analysis of the legal consciousness of lesbians and gay men, an analysis that is important in its own terms, but that also contributes to the theoretical understanding of the effects of power on legal consciousness and how resistance by marginalised groups contributes to the legal meaning-making they engage in. Both elements of Harding’s work are significant, not only for legal consciousness studies but also for legal theory, for understanding the legal agency and conditions of lesbian and gay lives, and also for providing additional grounding to the alternative conceptions of legality which underpin legal pluralism. Continue reading "Sexuality and Legal Consciousness"

Marks on Markets and Competition

March 22nd, 2013 | Shubha Ghosh | Intellectual Property

Mark A. Lemley & Mark P. McKenna, Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP, 100 Geo. L.J. 2055 (2012).

Shubha Ghosh

Lemley and McKenna’s recent collaboration is an article I like (lots) because it highlights a provocative anomaly. Antitrust law offers special treatment to markets for products protected by intellectual property. But as Lemley & McKenna point out, if you apply antitrust market definition principles to such markets, there are doubts as to their competitiveness. There is no price at which some loyalists will switch from Pepsi to Coke, the Beatles to the Rolling Stones, Dan Brown novels to Stephen King ones, or Apples to PCs. Because of this lack of consumer response to a price change, the authors conclude, antitrust law should scrutinize more closely markets defined by the existence of intellectual property rights.

Lemley & McKenna take their cue from Professor Louis Kaplow’s examination of market definition in antitrust law.¹ Building on Kaplow, the Lemley and McKenna article offers alternative approaches to address intellectual property cases that make reference to market effects without the use of market definition. I think this is correct. At the same time, there is another lesson to be gleaned from antitrust law that I think can be developed. Antitrust law is a branch of competition policy; the normative foundations of desirable competition inform antitrust law. My point is that intellectual property doctrines should be based on a deeper appreciation of the norms of competition. Continue reading "Marks on Markets and Competition"

The Reality of the Deterrence Effect: How Malpractice Lawsuits Promote Patient Safety

March 20th, 2013 | Kristin Madison | Health Law

Joanna C. Schwartz, A Dose of Reality for Medical Malpractice Reform, N.Y.U. Law Rev. (forthcoming), available at SSRN.

Kristin Madison

Discussions of patient safety often begin with the depressing statistic that 98,000 Americans die every year due to hospital medical error. From there, they may veer toward a conversation about the culture of silence that hinders efforts to identify and address medical errors. The reasons for the culture of silence? There are many, but the law usually features prominently among them. Fearful that any discussion of errors may find its way into malpractice litigation, the providers best suited to preventing medical error are often reluctant to share the information necessary to do so. Thus, rather than deterring error, tort law ends up deterring its prevention.

But this gloomy story is often told alongside a more hopeful one. Thirty years ago, prompted at least in party by high malpractice insurance premiums, anesthesiologists made a concerted effort to improve anesthesia safety – and they succeeded. So tort law can sometimes fulfill its deterrence function. And it does not always chill communication about errors, either. In institutions such as the Veterans Administration Hospital in Lexington, Kentucky, and the University of Michigan Health System, errors are not just discussed internally, but also disclosed to patients. Continue reading "The Reality of the Deterrence Effect: How Malpractice Lawsuits Promote Patient Safety"

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