Go Big or Go Home: The Debate Over National Injunctions

Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. __ (forthcoming 2018), available at SSRN.

Can a single federal district court judge issue an injunction binding in every state? And if so, when should they do so? That question has been on the minds of many watching the whiplash-inducing orders from judges these last few years. In 2015, a district judge in Texas issued an injunction barring the federal government from enforcing an executive order granting temporary reprieve and work authority to immigrant parents of persons lawfully in the United States (either citizens or permanent residents). The plaintiff was the State of Texas – the only state found to have standing – but the injunction encompassed the entirety of the United States. In 2016, a district judge in Texas issued an injunction barring the federal government from enforcing a Department of Education policy requiring that public schools provide facilities (such as restrooms) that match their students’ gender identity. The plaintiffs were sixteen states that did not wish to comply with the policy, but the injunction encompassed the entirety of the United States. In case you think that everything is bigger in Texas, in 2017, a federal district judge in Illinois issued an injunction barring the federal government from withholding federal funding to “sanctuary jurisdictions,” states or local governments that refused to cooperate with immigration enforcement. And in 2017 several district court judges enjoined the federal government from enforcing various versions of an executive order barring nationals from several predominantly Muslim countries from entering the United States.

One of the coolest things about procedure is how procedural questions destabilize our political preferences. As a matter of principle, if you agree that judges have the power to issue one kind of national injunction, then you must agree that they have the power to issue the other. As a political matter, you might like the injunctions against the Obama administration and not those against the Trump administration, or vice versa. The controversy over this exercise of judicial power was, until recently, mostly academic (in the sense that mostly academics cared about it), but a bill recently was introduced in Congress barring federal judges from issuing “an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority” except where the case has been certified as a national class action. The impetus for the bill is probably political (its sponsor is Republican Representative Goodlatte), but that does not answer the question: Is this a good bill? Should we limit the reach of a federal district court to the parties before it or in some other way that would bar these types of injunctions? Continue reading "Go Big or Go Home: The Debate Over National Injunctions"

Who Should Decide Whether the Parties Formed a Valid Agreement to Arbitrate?

David Horton, Arbitration About Arbitration, 70 Stan. L. Rev. 363 (2018).

David Horton’s Arbitration About Arbitration is a thorough and insightful treatment, with both normative and descriptive elements, of the law’s approach to delegation clauses in contracts calling for arbitration. Delegation clauses assign to arbitrators the question of the validity of an agreement to arbitrate (including defenses such as unconscionability and the like) that would otherwise be decided by courts. A typical delegation clause would go something like this: “Enforceability of the arbitration clause shall be determined by the arbitrator and not by a court” or “[t]he arbitrator[s] shall determine all issues regarding the arbitrability of the dispute.” Horton focuses on delegation clauses in employment and consumer adhesion contracts, where delegation is most troubling.

The article first sets forth a very helpful history detailing the rise of delegation clauses against the backdrop of initial judicial hostility to arbitration, Congress’s enactment of the Federal Arbitration Act (FAA), and the Supreme Court’s recent championing of arbitration, including the enforcement of delegation clauses. As for the latter, in First Options of Chicago, Inc. v. Kaplan, the Supreme Court established that enforcement depends on the parties’ intentions, but the Court required “clea[r] and unmistakabl[e] evidence” of an agreement to delegate. Then in Rent-A-Center, West, Inc. v. Jackson, Justice Scalia diluted the “clear and unmistakable” rule, by observing that courts should enforce delegation clauses if a party merely manifested an intent to delegate. As a result, a court can justify enforcement of a delegation clause by finding that a consumer clicked on an “I agree” button or signed a form contract, even if the consumer never saw or understood the clause. Horton also observes that the treatment of delegation clauses also “rode the wake” of additional Supreme Court decisions, such as AT&T Mobility LLC v. Concepcion, that for practical and legal reasons all but excluded consumers from pursuing rights in court. Continue reading "Who Should Decide Whether the Parties Formed a Valid Agreement to Arbitrate?"

Innovation and Regulatory Vigilance

Nearly everyone sings innovation’s praises. Innovation brings progress and prosperity. It leads to a better tomorrow. Yet, is innovation really an unalloyed good? In a new book, legal scholar Cristie Ford argues that innovation actually “presents a clear and persistent risk—perhaps the single most significant and under-analyzed risk—to regulation itself.” (P. 215.)

Innovation poses such an “existential challenge” to regulation, Ford argues in Innovation and the State: Finance, Regulation, and Justice, because the world subject to regulatory control is constantly changing. (P. 144.) Technological change, for example, has made hydraulic fracturing economical and led to a shale gas revolution in energy extraction. New, complex mortgage-backed derivatives in securities markets proliferated in the years leading up to the financial crisis. Changes such as these are continually occurring in every economy. Yet in a certain sense, regulation inherently stands still. Regulation operates by fixing words onto the pages of a rulebook. The world is dynamic, while regulation is static. Continue reading "Innovation and Regulatory Vigilance"

Where Have All the Claims Gone?

Cynthia Estlund, The Black Hole of Mandatory Arbitration, 96 N.C.L. Rev. 679 (2018).

Much has been written about employers’ mandates that their employees arbitrate claims on an individual basis. Empirical studies have examined employee success rates in arbitration, comparing them to employee success rates in litigation, and the effects of the employer being the only repeat player in the process. Scholars have also examined the evolving abdication by courts of their role in policing arbitration mandates. Cynthia Estlund’s article examines a more basic question: when employers impose arbitration mandates on their employees, do employee claims even get brought? Her answer is a resounding “rarely,” and much more rarely than when the claims can be brought in court.

Estlund acknowledges the challenges in collecting data about employment arbitration. She works with data assembled by Alexander Colvin and his colleagues. Colvin’s studies focus on the American Arbitration Association (AAA), which he estimates is designated in about half of employment arbitration agreements. Colvin also estimates that 56% of private sector non-agricultural employees are covered by arbitration mandates. Continue reading "Where Have All the Claims Gone?"

Adapting Capabilities Approaches to Domestic Policy Problems

Armin Tabandeh, Paolo Gardoni & Colleen Murphy, A Reliability-Based Capability Approach, 38 Risk Anal. 410 (2018).

Whether by statute or executive order, many agencies are required to produce cost-benefit analyses when proposing significant regulations and to justify decisions in its terms. The reason is not that cost-benefit analysis is perfect. Even its most thoughtful proponents recognize it has limitations. According to Matthew Adler and Eric Posner, for example, “[m]odern textbooks on [cost-benefit analysis] are plentiful, and some of them are optimistic about the usefulness of the procedure, but most of them frankly acknowledge its serious flaws and the inadequacy of standard methods for correcting these flaws.”1

Most proponents of cost-benefit analysis nevertheless suggest that when it comes to agency decision-making, no better and feasible alternative currently exists. Whether that is true depends on what the alternatives are. I have recently found A Reliability-Based Capabilities Approach useful in this regard. I believe it offers the right building blocks to articulate an alternative, capabilities approach to agency decision-making that may prove useful in a wide range of domestic policy contexts. Continue reading "Adapting Capabilities Approaches to Domestic Policy Problems"

Expanding Liberty to Privatize Dependency: How the Evolution of Marriage Has Shaped Constitutional Law

Susan Frelich Appleton, Obergefell’s Liberties: All in the Family, 77 Ohio St. L.J. 919 (2016), available at SSRN.

The Supreme Court’s ruling in Obergefell v. Hodges1 was a watershed moment not only in the history of the LGBT movement, but also in the relationship between family law and constitutional law. In the two years since it was decided, the ruling has become the subject of insightful commentaries from many of the legal academy’s leading scholars. This jot highlights one such article by Susan Frelich Appleton that merits special attention from scholars working in the fields of family law and constitutional law.

Appleton’s article makes two significant contributions to our understanding of the relationship between family law and constitutional law. Continue reading "Expanding Liberty to Privatize Dependency: How the Evolution of Marriage Has Shaped Constitutional Law"

Emphasizing the Public Interest in Charitable Gifts

Susan Gary, Restricted Charitable Gifts: Public Benefit, Public Voice, 81 Alb. L. Rev 101 (2018), available at SSRN.

Susan Gary’s Restricted Charitable Gifts: Public Benefit, Public Voice makes the case for legal reforms that reflect the public’s interest in loosening donor control of charitable gifts. Gary writes that her article is aimed at advocating for the adoption of reforms that increase “the consideration of the public benefit standard in charities law,” so I know that she didn’t set out to change the way I teach my Estates course. But that’s exactly what she did, and it’s why I like her article.

In classes on charitable trusts, my big picture questions are about the relationship between donors and charities: when should the law defer to the dead hand and when should it permit charities to modify donor-restricted gifts? Gary’s article has convinced me that the public interest—not donors or charities—should instead assume center stage. Restricted Charitable Gifts: Public Benefit, Public Voice is one of those rare articles that prompts me to re-conceptualize material I’ve taught for many years, particularly the enforcement role of the attorney general. Continue reading "Emphasizing the Public Interest in Charitable Gifts"

What Ever Happened to Dignity?

Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts, 104 Cornell L. Rev.__ (forthcoming 2018), available at SSRN.

In The Puzzle of the Dignitary Torts, Ken Abraham and G. Edward White return our attention to a domain of tort law they rightly describe as neglected, namely, the “dignitary torts”. In our time, the term is casebook catchall for an arguably heterogeneous collection of intentional wrongs— “offensive” battery, defamation, false imprisonment, intentional infliction of emotional distress (IIED) and the four privacy torts (intrusion upon seclusion, public disclosure of private facts, false light, and commercial appropriation).1 The term is a taxonomic category, and little more. It was not always so. For the first two-thirds of the twentieth century, the “dignitary torts” were a subject of sustained scholarly and practical interest. In the 1970’s they vanished from the scholarly radar and have not returned. In the courts, the long staccato expansion of these torts was halted by New York Times v. Sullivan and its progeny. New York Times v. Sullivan breached the wall that had insulated “private law” doctrines from public law criticism. Private law became another instance of state action and the dignitary torts became subject to constitutional scrutiny and curtailment insofar as their commission involved expression. In our time, the category endures almost untouched, but in so enduring it has become a hollowed-out husk of its former self. “Dignitary torts” is now just a hand box, a convenient pigeonhole which enables us to group together a number of distinct wrongs for purposes of classification and exposition. Nothing more is now said about “dignity” as a concept, or as a value, or as an overarching interest, which either captures a latent unity among these wrongs or identifies a common thread which ties the torts together. And the dignitary torts no longer struggle forward. They stand now in a defensive crouch, awaiting further constitutional confinement.

Abraham and White rightly think that there is an important story here, and they tell that story in a rich, illuminating, and provocative way. The history of the dignitary torts is indeed a puzzle. Why did scholarly interest in them disappear? Why are they still dormant even though dignity has built up a head of steam in both international human rights law and domestic legal developments such as same-sex marriage and the more general recognition of the dignity of LGBT persons? The Puzzle of the Dignitary Torts offers answers to these questions, and more. It also explores the concept of “dignity” and advances a jurisprudential argument that the dignitary torts were foreordained to wither on the vine. That argument is intuitive at first sight, but elusive on closer inspection. The basic idea is that because the common law creeps forward case by petty case it cannot build a body of law which is systematically organized around a highly general concept like “dignity”. Continue reading "What Ever Happened to Dignity?"

Fleshing Out Centralized Review of Tax Regulations

Clinton Wallace, Centralized Review of Tax Regulations, 71 Alabama L. Rev. __ (forthcoming 2018), available at SSRN.

In a new article, Centralized Review of Tax Regulations, Clinton Wallace addresses the timely question of whether and how tax regulations should be subject to centralized review by the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”). While OMB review has become standard for “significant” or “economically significant” agency regulations, tax regulations have long avoided review even when they meet this standard, raising, yet again, the question of whether tax should be different than other areas of administrative law. In addition to helping us understand the historical lack of centralized review of tax regulations, Wallace’s paper does the important job of showing the inadequacy of the new framework for centralized review, and pushing us to recognize the complex questions that have to be answered to develop objective criteria for review.

Wallace first describes how the history of tax regulations not being subject to OIRA review is tied in with the long and much discussed (at least in tax circles) story of tax exceptionalism. Historically, Treasury and the IRS have taken the view that most of their regulations were merely interpretive and thus not subject to various requirements such as notice-and-comment or centralized review. This has resulted in the anomaly of tax regulations not being subject to the various stages of OIRA review even in cases in which other agencies, with joint drafting responsibility, have subjected that very same set of regulations to centralized review. Wallace also describes how the anti-inversion rule, the one tax regulation that has been subject to centralized review recently, was only reviewed in a relatively superficial way, lacking the type of rigorous analysis prescribed by OIRA’s own rules. Continue reading "Fleshing Out Centralized Review of Tax Regulations"

Property, Fast and Loose

Katrina M. Wyman, The New Essentialism in Property, 9 J. Legal Analysis 183 (2017).

What’s the best model for property – a sack of LEGO bricks or a heap of sticks?1 For those with a formalist view of property that emphasizes a stable set of characteristics and a distinctively self-contained architecture, the LEGOs win hands down.2 The blocks are standardized, free of rough edges and irregularities, and they snap cleanly together while maintaining their individual integrity. The sticks, by contrast, lack any obvious organizing principle or irreducible core. The bundles they form are loose and contingent, vulnerable to endless unbundling and rebundling.3 Yet the choice of bricks over sticks becomes far less clear on a functional vision of property that focuses on making property rights work well in the messy, interdependent modern world. For a functionalist, the question of optimal property structure must depend on the challenges and pressures presented by the surrounding conditions, and on what one is trying to build.

In The New Essentialism in Property, Katrina Wyman spotlights the incongruity between the formalist and functionalist facets of what she terms “the new essentialism.” Her primary focus is the influential scholarship of Henry Smith and Thomas Merrill, who are presently working on the American Law Institute’s fourth restatement of property (Smith is the lead reporter; Merrill is an associate reporter). Their vision of property as a boundary controlled, thing-based, in rem system of delegated control is steeped in formalism. Yet it also lays claim to functionalist justifications, most notably in the form of information cost savings. Opening the door to functionalism, however, requires reconciling property’s purportedly fixed core with social and economic conditions that are far from static. The resulting brand of essentialism is, as Wyman puts it, “highly malleable.” This malleability has two implications, as Wyman observes.  On the one hand, it offers a response to critics who accuse the new essentialist project of neglecting important interests. On the other, it makes the new essentialism less essentialist. Continue reading "Property, Fast and Loose"

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