Descendibility: The Neglected Stick in the Bundle

David Horton, Indescendibility, 102 Calif. L. Rev. __ (forthcoming, 2014), available at SSRN.

Should the right to transfer an asset after death extend to kidneys, personal injury claims, or frequent flier miles? In Indescendibility, Professor Horton provides a fascinating and in-depth examination of this neglected right in property law’s bundle of sticks. He maps out a theoretical justification for indescendibility, grounding it in a set of practical concerns about the administration of posthumous property, and offers several suggestions for law reform. Professor Horton has a knack for unearthing unique and cross-cutting themes in the law of trusts and estates, and this piece again provides readers with significant food for thought.

Part I takes us on a tour of the variety of things that have been made indescendible by law, as well as the diverse sources of law from which this indescendibility flows. The United States Constitution prohibits the descendibility of noble titles and hereditary privileges, a move by the early American political elites to distinguish themselves from the British. Indescendibility is also the standard rule for body parts, where descendibility has been regulated by statute or outright prohibited because body parts have not typically been considered to be property. The common law doctrine of abatement restricts descendibility of legal claims for physical injury. While this doctrine has been superseded by survival statutes in nearly all states, these statutes are inconsistent in their scope and application, sometimes leaving the abatement rule intact in practice. Indescendibility by contract is the newest frontier of interest, where fine print often prevents sports fans from passing season tickets to their heirs. Continue reading "Descendibility: The Neglected Stick in the Bundle"

 
 

A Map Through the Punitive Damages Forest

Yehuda Adar, Touring the Punitive Damages Forest: A Proposed Roadmap, 1 Osservatorio Del Diritto Civile E Commerciale [The Civ. & Com. L. Observer] 275 (2012), available at SSRN.

The questions raised by punitive damages are numerous and varied: Should punishment be a part of the civil system? Are punitive damages awards “out of control”? Should a punitive damages award be split between the State and the individual plaintiff? Should caps be placed on punitive damages? Indeed, the topic of punitive damages has been examined from competing empirical perspectives, from a comparative law analysis, from a historical angle, and the list goes on and on and on.

Enter a new article by Yehuda Adar. In this thought-provoking piece, Adar offers a framework for organizing these various debates about punitive damages. In so doing, Adar provides a convenient and helpful synthesis of both the current objections to punitive damages, and the counter-arguments in support of punitive damages’ place in the civil liability system. Continue reading "A Map Through the Punitive Damages Forest"

 
 

Next Up, Incest

Anthony C. Infanti, Big (Gay) Love: Has the IRS Legalized Polygamy?, N.C.L. Rev. Addendum (forthcoming, 2014), available at SSRN.

Gay marriage opponents love to fear monger about the slippery slope of extending marriage beyond the legal union between one man and one woman. They prophesy that if we allow marriage between two men or two women, we will descend into a Gomorrah of incest, adultery, polygamy, and animal love. In his essay, Big (Gay) Love: Has the IRS Legalized Polygamy?, Anthony Infanti makes subversive use of this repugnant meme to advance his view that tax results should not depend on marriage in the first place.

Infanti’s argument focuses on an analysis of Revenue Ruling 2013-17 (the Ruling), which recognizes same-sex marriages for federal tax purposes. Issued in 2013, after the U.S. Supreme Court invalidated section three of the federal Defense of Marriage Act, the Ruling announces the IRS’s adoption of a general interpretive rule that “for Federal tax purposes … recognizes the validity of a same-sex marriage that was valid in the state where it was entered into, regardless of the married couple’s place of domicile.” Infanti interprets the Ruling to apply to a limited subset of same-sex marriages, in contrast to what he calls the “alternative interpretation” of the Ruling, which reads the Ruling more expansively to cover a larger number of same-sex marriages. Infanti claims that under alternative interpretation of the Ruling, the IRS would also have to recognize the validity of plural marriages. Continue reading "Next Up, Incest"

 
 

Those Are Pearls That Were His Eyes

Full fathom five thy father lies;
                Of his bones are coral made;
Those are pearls that were his eyes:
                Nothing of him that doth fade
But doth suffer a sea-change
Into something rich and strange.
Sea-nymphs hourly ring his knell
                                    Ding-dong
Hark! now I hear them – Ding-dong, bell.
–William Shakespeare, The Tempest

During the War of 1812, Philadelphia’s Academy of Fine Arts petitioned a Nova Scotia admiralty court to release works of art bound for it from Italy aboard an American merchant ship captured by the British and brought to Halifax. The court granted the petition distinguishing, for the first time in a published judicial opinion, cultural property from other chattel, stating that works of art are “entitled to favour and protection.”1 By creating an exception for paintings and prints, the court gave cultural property a special legal status, the contours and extent of which remain elastic. Two centuries after the Nova Scotia court christened the field of cultural property law, Valentina Vadi has written an insightful article seeking to determine whether a norm of customary international law is developing to distinguish and provide special legal treatment for a particular kind of cultural property: sunken warships.

Sunken ships are an especially complicated form of cultural property. A ship’s wreckage and cargo are often historically and aesthetically important and immensely valuable monetarily; their archaeological context preserves unique and irreplaceable information; their human remains implicate practices and traditions relating to treatment of the dead; and some pose environmental hazards to flora and fauna (both of which are deemed cultural property under a 1970 UNESCO cultural property convention). Because new technologies are facilitating the discovery, identification, and recovery of shipwrecks, it is reasonably foreseeable that disputes over them will continue. Thus, the growing scholarship on shipwrecks is timely, and Valentina Vadi’s inquiry, in particular, responds to an important question. Continue reading "Those Are Pearls That Were His Eyes"

 
 

Just the Beginning: Studying the Global Demography of Lawyers

Ethan Michelson, Women in the Legal Profession, 1970-2010: A Study of the Global Supply of Lawyers, 20 Ind. J. Global Legal Stud. 1071 (2013).

In the past a few decades, feminization has been one of the most notable developments in the legal profession worldwide. From Continental Europe to North America, from Latin America to Asia, research has shown a rapid increase in the proportion of female lawyers in vastly different national and legal contexts (see Kay and Gorman 2008 for a review). Yet few existing studies provide a good cross-national comparison of the global trends of lawyer feminization. Despite the enduring structural barriers in recruitment, compensation, and promotion that women face in law firms and other elite legal institutions, they have continued to enter the bar in vastly different social contexts. What are the driving forces behind the feminization of lawyers? And how does this process vary from one country to another?

Using data on lawyer populations and gender compositions assembled from national censuses and lawyer statistics in 86 countries, Ethan Michelson’s recent study offers a comprehensive and convincing analysis of the relationship between bar expansion and lawyer feminization. Despite large variations of legal systems and lawyer demographics across different countries, Michelson finds a highly consistent pattern, that is, almost no country’s legal profession has attained a feminization level of at least 30% of women before its lawyer density (i.e., lawyer/population ratio) surpassed a level of 2,000 people per lawyer. In other words, feminization is part of some larger demographic changes in the legal profession worldwide. Continue reading "Just the Beginning: Studying the Global Demography of Lawyers"

 
 

Bodies on the Line: The Private Tragedies Underlying Modern Products Liability Law

“Legal interpretation,” Robert Cover famously wrote, “takes place in a field of pain and death.” Honoring Cover’s important insight is one of the great challenges of legal scholarship. As we use our expertise to explore the nooks and crannies of our “legal world”—the clever transactional devices, complex regulatory schemes, and jurisdictional puzzles—do we recognize the state-inflicted and -sanctioned violence on which this world depends? Barbara Young Welke’s The Cowboy Suit Tragedy is a powerful example of how to write about law without losing sight of what Cover calls the “bodies on the line.”1 In the tradition of critical legal history, Welke’s insightful and empathetic account of a mid-twentieth-century products liability case goes further still, to show us the profoundly unequal impact of law’s violence. By placing the case in the context of the “democratization of [consumer] desire,”2 the rise of product liability insurance, and the inherently atomizing features of private law, Welke reminds us that even when tort law forced manufacturers to bear the monetary cost of accidents, the emotional and physical injuries lay where they fell. Families—here, children—owned the hazards inherent in many products, and most often they owned them not as a class or community, but as individuals, as scattered and disconnected as the transactions that brought the products into their lives.

The Cowboy Suit Tragedy centers on the New York case McCormack v. M. A. Henry Co., a wrongful death suit brought by the McCormack family against the manufacturers of the Gene Autry cowboy suit. A popular toy since it first came off the production line in 1942, the “Autry cowboy ranch outfit” offered parents a way to “provide their children with a protected childhood,” an intense postwar desire, while participating in the mass consumer economy that increasingly defined American identity. (P. 103.) Unfortunately for seven-year-old Tommy McCormack, who received the toy for Christmas in 1944, there was a hazard “designed in” to the costume: its plush white chaps were made from a highly flammable viscose rayon fiber, at a time when “children encountered fire as a regular part of daily life.”3 “One minute Tommy was playing,” Welke writes, drawing from court testimony, “and the next he was screaming,” in what his brother Jackie remembered as “a ‘circle of fire.’” After four long months, he died from his injuries. (P. 101.) Other children had by then suffered similar fates, but after Mr. McCormack’s chance encounter with a lawyer, Tommy became the cowboy suit’s first legally cognizable victim. (P. 111.) Continue reading "Bodies on the Line: The Private Tragedies Underlying Modern Products Liability Law"

 
 

International Law and Dworkin’s Legal Monism

Ronald Dworkin, A New Philosophy for International Law41 Phil. & Pub. Aff. 2 (2013).

That Dworkin waited until the very end of his career to take on international law might seem strange. One of Dworkin’s great insights is that participants in legal practices often disagree about the criteria for identifying law, while nevertheless thinking that their disagreement has a determinate answer. If we are to do justice to these “theoretical disagreements,” as Dworkin called them, we cannot hold a positivist theory, like H.L.A. Hart’s, under which the existence and content of the law are ultimately determined solely by social facts about a community’s legal practices. Only by introducing evaluative considerations can we make sense of practitioners’ commitment to law that transcends these social facts.

International law would appear to be a poster child for the Dworkinian theory of law. Theoretical disagreements about international law are common, and those seeking to resolve them commonly appeal to evaluative considerations. What is more, it appears that international law, by its very nature, transcends social facts about the legal practices of a particular community. The principles of international law seem to stand above and bind the American, French, or Uzbek communities. Continue reading "International Law and Dworkin’s Legal Monism"

 
 

Seeing Like a Copyright Lawyer: Judging Similarity in Copyright Cases

There are many ways to use empirical research in intellectual property scholarship. Work can be qualitative or quantitative, interdisciplinary or highly focused on the law. One of the most intriguing questions I’ve seen investigated empirically of late is “what makes us think that one work is similar enough to a previous one to infringe?” Given the significant expansion in the scope of copyright from pure reproduction to derivative works and substantially similar works, this is an important issue.

The two articles I highlight here approach the question from very different, but complementary, perspectives. The authors of Judging Similarity start with legal scenarios adapted from real cases and ask survey respondents whether the works are similar enough to infringe. Kate Klonick, like David Morrison, examines similarity from a cognitive science perspective, starting with what researchers already know about human judgments of similarity and difference in nonlegal contexts. (Disclosure: I advised Klonick, now pursuing a Ph.D. at Yale, on this project.) Continue reading "Seeing Like a Copyright Lawyer: Judging Similarity in Copyright Cases"

 
 

New Governance as the New Weapon in the Fight Against Fraud

Joseph W. Yockey, Choosing Governance in the FCPA Reform Debate, 38 J. Corp. L. 325 (2013), available at SSRN.

Health law scholars sometimes pay inadequate attention to those who don’t write specifically in our area, which is the reason I have dedicated this and my previous jot to articles by non-health law professors that give us the big picture on issues related to the False Claims Act and the Foreign Corrupt Practices Act (FCPA), both of which are key enforcement mechanisms in the health sector. Bribery is unquestionably one of the most significant risks global life science companies face, given the SEC and DOJ’s recent increase in FCPA enforcement. Growing numbers of academic medical centers are engaging in joint ventures throughout the world, particularly in emerging economies where the risks of corruption are greatest. For these reasons, then, the FCPA is increasingly relevant to the health lawyer and compliance professional.

Professor Joseph W. Yockey’s recently published article, Choosing Governance in the FCPA Reform Debate, is a worthwhile read for three reasons. First, it summarizes the history and salient parts of the FCPA for those requiring a primer on the law. Second, it examines the two sides of the debate—between the business community (led by the Chamber of Commerce, which is also fighting vigorously for changes to the False Claims Act) and entities such as Human Rights Watch and Amnesty International —over whether Congress should revise the FCPA and whether DOJ and the SEC are over-enforcing the law. Third, the issues evoked by the concerns about FCPA enforcement are quite similar to the debate surrounding enforcement under the False Claims Act thereby giving the health professor, like myself, who is not a white collar specialist, a ten-thousand-foot view across the statutory spectrum of enforcement agency behavior. Continue reading "New Governance as the New Weapon in the Fight Against Fraud"

 
 

A Pro-Gay-Teen Argument for Pushing the Pause Button on Anti-bullying

Andrew Gilden, Cyberbullying and the Innocence Narrative, 48 Harv. Civ. R.-Civ. L L. Rev. 357 (2013).

As Andrew Gilden reports in this revealing article, bullying and especially cyberbullying reforms are becoming institutionalized. Prosecutors respond to media coverage of teens bullied into suicide with creative prosecutions. State and federal law require secondary and primary schools to single out bullying for swift and severe punishment and have set up special bureaucratic processes to surveille bullying, report it up the chain of command, and publicly rank schools by the numbers they generate in the process. Schools are also required to teach kids the evils of bullying. Because internet use is often blamed as a medium for “cyberbullying,” a big segment of the antibullying campaign is focused on controlling teens’ access to sexual content on line. This includes Congressional efforts to immunize ISPs for restricting access to obscene material on-line and to enhance parents’ ability to filter their children’s access to that material. Cyberbullying overlaps in many policy efforts with sexual predator scares to promote the closure and blockage of sexually-oriented chat rooms and other fora in which teens could get in over their heads.

Preventing and punishing bullying has become an important LGBT priority. From the media storm over the suicide of Tyler Clementi to President Obama and Kim Kardashian reaching out to gay kids on Dan Savage’s “It Gets Better” website, pro-gay advocacy has played a key role in generating social and political support for anti-bullying reforms. The logic of their efforts seem obvious: gays are victims of bullying precisely for their sexuality, so controlling this phenomenon will be good for them. Continue reading "A Pro-Gay-Teen Argument for Pushing the Pause Button on Anti-bullying"

 
 

Crime, Surveillance, and Communities

Crime, Surveillance and Communities, 40 Fordham URB. L.J . 959 (2013).

Timing is everything. I started reading Crime, Surveillance and Communities in the midst of the unrest in Ferguson, Missouri. The community north of St. Louis was the site of civil unrest in the wake of the shooting of Michael Brown, an unarmed black teenager. I could say that Prof. Capers’ article, which explores the use of technological surveillance as a mechanism to police the police, is prescient. However, given the number of such shootings, especially those that have risen to national attention, I would instead describe the article as a thoughtful effort to assess how technology might be used to assist and address interactions between police and community members, especially interracial interactions. Let me explain.

Capers argues that because the Fourth Amendment does protect some actions in public from technological surveillance, reasonable privacy intrusions must be balanced with the public good. Thus, technological surveillance in public is legitimate only so long as the surveillance is reasonable. Capers begins by introducing the many ways in which surveillance technology is already being used to watch our public movement and activities, be it through video cameras, biometric technology, zoom and movement capabilities, license plate readers, car trackers, CCTV, facial recognition technology, or apps. All of these, he says, combine to amount to “warrantless mass surveillance.”1 Thus, the Big Brother possibility, and the Foucauldian panoptican, are already a part of our lives. (P. 964.) Continue reading "Crime, Surveillance, and Communities"