Yearly Archives: 2010

Is There A Judicial Path Out of Mass Incarceration?

Cecelia Klingele, Changing The Sentence Without Hiding The Truth:  Judicial Sentence Modification As A Promising Method Of Early Release, 52 Wm. & Mary L. Rev. 465 (2010), available at SSRN

American state prison systems face a problem equivalent to our once great manufacturing corporations with their unsustainable pension and health care promises to their workers and retirees.  In the case of our prison systems, the promises take the form of long and inflexible prison sentences that commit the states to funding the housing and health care of unprecedented numbers of prisoners for decades to come.  The costs of these promises, combined in many cases with the failure to provide capacity for healthcare delivery to predictably unhealthy populations, is now confronting the states, sometimes with the prodding of the federal courts, with the need to allocate an ever greater share of revenues to their correctional budgets.  In some states the share spent on prisons now exceeds that spent on higher education.  At a time of catastrophic revenue shortfalls because of the economic crisis, these costs are forcing many states for the first time in decades to consider ways to reduce prison populations. 

While this represents a sea change from nearly forty years of political consensus in support of increasing prison capacity and populations, the question of how to do it in a politically viable way now confronts state leaders with a great conundrum.  Unlike the manufacturing corporations that could use the bankruptcy process (or the threat thereof) to wring concessions from workers and retirees and thereby arrive at a sustainable level of liability, states seeking to reduce their incarceration commitments face the politically hazardous task of changing sentencing or parole laws after decades of telling voters that more prison time was necessary for public safety.

Cecilia Klingele’s article is one of the first law review articles I have encountered to directly address this new conundrum rather than treating sentencing policy from a universal and nonhistorical perspective.  Klingele has absorbed the lessons of the politics of penal populism and is seeking to develop legal strategies for dealing with it.  This article offers an incisive and convincing critique of the currently preferred path being taken by the states and offers a provocative and promising alternative.  Continue reading "Is There A Judicial Path Out of Mass Incarceration?"

Why Protect Falsity?

Frederick Schauer, Facts and the First Amendment, 57 UCLA L. Rev. 897 (2010).

Free speech theory has neglected – to the point where it is almost an embarrassment – the treatment of false statements of fact as such (that is, where they do not injure reputation).  The Supreme Court has declared that no First Amendment value attaches to false statements of fact – and that there is no such thing, under the First Amendment, as a false idea.  One reason for the theoretical neglect of false statements of fact may be that the examples that come to mind blend questions of fact and “ideas” (think of global warming and evolution).  Another reason may lie in the chilling-effect argument – that the First Amendment requires that statements themselves lacking First Amendment value, such as false statements of fact, sometimes be immunized from liability out of fear that imperfections in the system of imposing liability will lead speakers to refrain from making true statements because they are worried that a decision-maker might wrongly conclude that the statements were false.

Frederick Schauer’s Nimmer Lecture does some essential ground-clearing on the basic theoretical questions.  With his usual analytic care and clarity, Schauer distinguishes between basic facts and opinions, and defends the sensible anti-post-modern proposition that not all facts are socially constructed.  The latter is particularly important because there is an understandable tendency to pose questions about regulation of false statements of fact by imagining when the government might want to impose liability, and the usual answers, at least in the United States, do touch on issues where post-modern anxieties might be well-placed (again, think global warming and evolution and even Holocaust denial, though Schauer contends otherwise as to the last). Continue reading "Why Protect Falsity?"

The Truth Might Set Your Statutory Interpretation Free

H. Miles Foy III, On Judicial Discretion in Statutory Interpretation, 62 Admin. L. Rev. 291 (2010), available at SSRN.

There is something silly about Supreme Court decisions in which five justices explain that the conventional tools of statutory interpretation—e.g., legislative intent, objective textual meaning, and judicial rules for discerning and applying them—plainly indicate that a statute means A but the other four justices deploy the same tools to explain that the statute plainly means B.  After all, if the relevant meaning were all that clear, wouldn’t all nine of the extraordinarily capable legal minds on the Court come to quick agreement?  And isn’t their disagreement strong evidence that the statutory question has no pre-existing, determinate legal answer?   One might expect that under such circumstances, the rules of reasoned legal discourse would require justices to make remarks like, “Wow.  My dissenting colleagues’ arguments are really very good—they almost persuaded me—and I’m no pushover. But, on balance, I still think it is a better idea to choose interpretation A instead of B.”  Instead, the more usual practice is for both sides to insist that the other is just plain wrong.

In his elegant essay, Professor Foy suggests courts dispense with such nonsense and instead tell the truth.  Suppose, for instance, a judge determines that conventional tools of statutory interpretation do not compel a choice between readings A and B.  The judge happens to think that the world would be a better place were she to choose B.  Under the current rules of the game, the judge should write an opinion that tries to justify choosing B based solely on conventionally acceptable tools—which might include, say, old dictionaries.  This sort of exercise can generate judicial explanations that are strained, arbitrary, or untruthful.  According to Professor Foy, the judge should: (a) instead concede that interpretations A and B both seem pretty darn reasonable as a matter of conventional legal analysis, and then (b) truthfully explain whatever reasons of policy, equity, or justice moved the judge to choose one interpretation over the other.  In short, judges should admit that they must exercise discretion when choosing among reasonable interpretations of ambiguous statutes and then exercise that discretion as prudently and transparently as they can. Continue reading "The Truth Might Set Your Statutory Interpretation Free"

The More We Know, the More We Know We Don’t Know

Carole Silver, What We Don’t Know Can Hurt Us: The Need for Empirical Research in Regulating Lawyers and Legal Services in the Global Economy, 43 Akron L. Rev. 1009 (2010), available at HeinOnline.

Carole Silver is one of the scholars who actively researches and writes on the legal profession in the context of globalization.1  However, as Silver in this recent article reminds us, there still are many unexplored issues and unidentified data.  In this article, researchers will find an abundant source of research ideas.  Silver first stresses the significance of “sound empirical evidence” (p. 1014) for policy-makers when they formulate the regulatory framework.  She then goes on to identify the actors and activities to be investigated and the relevant data to be collected.  In addition, she also suggests possible organization(s) to house the research.

Although Silver writes from an American perspective, the research framework that she suggests, with relevant modifications/adjustments, can be adopted for other jurisdictions.  Similar data-collection and research conducted in the main economies and financial centers in the world—for example UK, Japan, China, Germany, Australia, Canada, Hong Kong, Singapore, France—will supplement each other and help in completing a reasonably comprehensive picture of the real situation of the legal services in the context of globalization. This will be useful for policy-making and enhance its credibility. Continue reading "The More We Know, the More We Know We Don’t Know"

Really Sticky Default Rules

Brishen Rogers, Toward Third-Party Liability for Wage Theft, 31 Berkeley J. Emp. & Lab. L. 1 (Winter 2010).

In the law of work, the hierarchy of legal authority – constitutions trump statutes trump common law – is frequently subverted by a common law that doesn’t seem to know its place.

Early efforts to supplant common law with statutory regulation frequently foundered when common law rules morphed into constitutional principles and forced contrary legislation to give way – most famously, when the right to fire “at will” achieved constitutional stature in the service of striking down state laws prohibiting the yellow-dog contract.  And the constitutionalized common law continues to this day to shape the regulation of work, most recently when the “at-will” rule reared its head to vanquish “class of one” equal protection claims for public employees. Continue reading "Really Sticky Default Rules"

Exploring Legitimacy in Internet Institutions

Jonathan Weinberg, Non-State Actors and Global Informal Governance — The Case of ICANN, in International Handbook on Informal Governance (Thomas Christiansen and Christine Neuhold eds., forthcoming 2011).

The organization of the Internet raises some profound and fundamental questions about the nature of law and social order, questions that legal scholars have tackled head-on only occasionally and incompletely.  If, as Lessig once argued, technical protocols effect a kind of “law” analogous to treaties, statutes, judgments, and administrative regulations, then by what standard should that “law” be regarded as legitimate and authoritative?  Comparable questions have been asked from time to time with regard to informal social norms that seem to operate online, and more frequently with respect to the private but apparently governmental institutions, particularly the Internet Corporation for Assigned Names and Numbers (ICANN), that have evolved over the last decade to govern the wilds of the Net.

Lawrence Lessig, in Code and Other Laws of Cyberspace, and later Michael Froomkin, in Habermas@discourse.net, chose to look at legitimacy in cyberspace from the perspective of normative political theory.  Jonathan Weinberg, in this chapter from the International Handbook on Informal Governance titled “Non-State Actors and Global Informal Governance – The Case of ICANN,”  steers clear of such normative judgments and instead approaches the task explicitly as one of sociological, or descriptive, legitimacy.  Legitimacy is important, as Weinberg, notes, in part because perceptions of an institution’s legitimacy powerfully impact willingness to comply with its commands or defer to its arrangements.  Though he does not argue the case explicitly, legitimacy is central to institutional authority.  Legitimacy and social order – online and off – go hand in hand. Continue reading "Exploring Legitimacy in Internet Institutions"

The Nature of Law and the Human Condition

Fernanda Pirie, Law Before Government: Ideology and Aspiration, 30 Oxford Journal of Legal Studies 207 (2010).

The question of the nature of law lies at the heart of jurisprudence. At the present day, the major sources of debate on the question revolve around acceptance or otherwise of ‘legal positivism’ and associated doctrines of analytical jurisprudence. Do we reveal the nature of law when we clarify the conceptual presuppositions of certain social practices? Must theories of the nature of law be ‘neutral’, ‘descriptive’ or ‘detached’? Or are social practices essentially ‘interpretive’, so that the nature of law is only revealed when it is expounded as the expression of a moral or political idea? How, indeed, are we to tell whether analytically pleasing distinctions (such as that between law and morality) genuinely clarify the nature of the object under investigation (law), rather than obscuring it? These debates are clearly capable of exerting their own fascination; but one might suspect them of diverting attention from the traditional concern of jurisprudence, which is to elucidate the nature of law as a social institution, and to throw light upon its place within the human condition. Such inquiries stimulate a specific interest in the significance of law as a distinctive type of social ordering. This is a dimension of understanding that is as lost upon modern critics of positivism as it is upon positivists themselves: for example, in his recent book Justice in Robes, Dworkin argues that philosophical significance attaches only to the substance of legal doctrine, there being no philosophically interesting issues relating to law as a social institution (Justice in Robes, Harvard, 2006, 2-3).

Pirie’s article is refreshing because it avoids the recent debates in favour of an investigation into the nature of law as a social and intellectual phenomenon. Law is not simply a set of practices or a body of norms, but an intellectual system (207). Her concern is to explore the idea of law in terms of its form. We might initially suppose that law can be defined in opposition to forms of negotiated order: a supposition that draws a close association between law and government. Is this anthropologically valid? According to Pirie, law is to be identified ‘neither by reference to the negotiation of order, nor by reference to government. It is, rather … identified by its expressive and aspirational qualities and its ideological claims to promote order and justice.’ (id.) The central question is then how law is different from other forms of ideological system (208). Continue reading "The Nature of Law and the Human Condition"

Charity Begins With The Gift Agreement: Keeping Intent Fluid

Charities have a legal duty to comply with the restrictions donors place on gifts. Most charities act in good faith and honor the conditions the donors place on the donations. Problems usually occur when internal or external events make it necessary for the charity to change the manner in which it is carrying out the donor’s intent. Persons objecting to those changes may go to court to prevent the charity from taking certain actions. The litigation does not benefit the charities or the donors. Professor Gary addresses this problem with a comprehensive and thought-provoking article. She starts with an explanation of charitable trust law and identifies the legal issues that can arise because donor intent is difficult to determine and to enforce.

Professor Gary starts the article discussing recent high profile cases involving disputes over donor restrictions on charitable gifts. The five cases Professor Gary highlights contain facts that are interesting enough to get the reader’s attention. By starting with illustrations of recent cases Professor Gary shows that the issues she examines in her article are timely and in need of resolution. Continue reading "Charity Begins With The Gift Agreement: Keeping Intent Fluid"

Brand or Anti-Brand?

Sonia K. Katyal, Stealth Marketing and Antibranding:  The Love that Dare Not Speak Its Name, 58 Buff. L. Rev. 795 (2010).

How many law review articles begin with a scene from Wayne’s World?  For Sonia Katyal, such an opening is par for the course.  Since she entered the scene a decade ago, Katyal’s scholarship has celebrated irreverence, and examined the ways in which the law tolerates, enables, and often discourages commentary on dominant culture, icons, and in this case, brands.  This essay – written for a symposium on advertising and the law at SUNY Buffalo Law School – continues the Katyal tradition.

In Stealth Marketing, Katyal takes up the question of whether and how the law should deal with the increasing convergence between speech from trademark holders and speech about trademark holders.  The essay picks up on a phenomenon that Ellen Goodman raised several years ago in her article, Stealth Marketing and Editorial Integrity, 85 Tex. L. Rev. 83 (2006).  Goodman’s piece had explored the various ways in which advertisers pay to slip their messages into communicative products, leaving consumers uncertain as to the objectivity or veracity of the content they consume.  Goodman’s inquiry focused on the extent to which the law can or should require disclosure when a business, advocacy organization, or even an arm of the government pays to have its messages incorporated into a third party’s communicative work. Continue reading "Brand or Anti-Brand?"

Just How Broad is the Tax Power?

Erik M. Jensen, The Individual Mandate and the Taxing Power, Case Research Paper Series In Legal Studies, Working Paper 2010-33 (September 2010), available at SSRN.

Even though it is Congress’s first enumerated power, appearing in the Constitution ahead of the power to regulate interstate commerce, the tax power doesn’t get much attention in court cases, law journals, or newspaper articles.  It is, however, the Constitution’s hidden giant.  The Constitution doesn’t express many limits on the scope of the tax power, other than the requirement that taxing (and spending) must be “for the General Welfare.”  And the Supreme Court has interpreted Congress’s tax power broadly, finding taxes constitutional even when they have regulatory effects that Congress could not have achieved directly under the Commerce Clause.

Constitutional scholars have been debating whether the individual mandate of the health care act, which inserts into the tax code a penalty that applies to certain people who fail to purchase private insurance, exceeds Congress’s power under the Commerce Clause.  Suits against the federal government in Virginia and Florida by the attorneys general of 20 states claim that the health care law—in particular the individual mandate—is unconstitutional because it exceeds Congress’s constitutionally enumerated powers. Continue reading "Just How Broad is the Tax Power?"

The Diversity of Public Sector Labor Law Regimes

Ann C. Hodges, Lessons from the Laboratory: The Polar Opposites on the Public Sector Labor Law Spectrum, 18 Cornell J. L. & Pub. Pol’y 735 (2009).

The importance of the public sector in traditional labor law and collective bargaining increases every year.  Whereas union density is down to about 7.5% in the private sector, it continues to hover close to 40% in the public sector.  A majority of union members now work for units of government.  The most heavily unionized sectors of the economy are education, police, and fire protection.  Yet, most traditional labor law scholarship continues to focus on the private sector generally and the National Labor Relations Act (NLRA) in particular.  Scholars’ obsession with the NLRA continues even though the legal regimes governing public sector labor relations are highly diverse and therefore provide considerable fruit for scholarly analysis.

Ann Hodges’ article is refreshing and important and goes a long way to filling the vacuum in labor law scholarship.  Hodges compares Illinois, whose legal regime she characterizes as one of the most union-friendly, with Virginia whose regime is one of the most union-hostile.  She catalogues the reasons behind those characterizations, showing the numerous ways in which Illinois law is more favorable to unions than the NLRA and than most other states’ public sector labor laws, and relating how Virginia, which has never had a public sector collective bargaining statute, went from allowing public sector collective bargaining at the employer’s option, to prohibiting it by Virginia Supreme Court decision, to codifying the prohibition in state statute.  She further relates how Illinois law in general is more worker-protective, whereas Virginia law and policy are focused on maintaining a favorable business climate. Continue reading "The Diversity of Public Sector Labor Law Regimes"

Pirates Then and Now

Eugene Kontorovich, “A Guantanamo on the Seas”:  The Difficulty of Prosecuting Pirates and Terrorists, 98 Cal. L. Rev. 243 (2010).

Eugene Kontorovich has struggled to return the outlawry of pirates to the legal agenda.  Admittedly, he has had some assistance from brigands off the coast of Somalia and in the Indonesian Straits of Malacca.  Nonetheless, as world attention turns to the indeterminate status of non-state actors who practice a form of warfare unencumbered by uniforms, the principle of distinction from civilians, or any of the evolved norms of respect for civilians, medical personnel and countless other features of the law of war, the legacy of clear international legal rules governing pirates seems like an attractive safe harbor.  Surely nothing is more settled than the fact that pirates are hostis humani generis, enemies of all mankind, for whom jurisdiction is universal and punishment merciless.

Or so it would seem.  As Kontorovich well tells the tale, in the intervening centuries many international conventions have emerged reflecting both more sophisticated international relations and the emergence of human rights norms.  Among these are the Geneva Conventions, other sources of international humanitarian law, refugee laws, and international laws of the seas.  Continue reading "Pirates Then and Now"

Top-Down versus Bottom-Up Law Reform in Trusts and Estates: Future Interests and Perpetuities

  • Lawrence W. Waggoner, The American Law Institute Proposes Simplifying the Doctrine of Estates (May 21, 2010). U of Michigan Public Law Working Paper No. 198,  available at SSRN.
  • Lawrence W. Waggoner, Curtailing Dead-Hand Control: The American Law Institute Declares the Perpetual-Trust Movement Ill Advised (June 1, 2010). University of Michigan Public Law Working Paper No. 199, available at SSRN.
  • Lawrence W. Waggoner, The American Law Institute Proposes a New Approach to Perpetuities: Limiting the Dead Hand to Two Younger Generations (June 1, 2010). University of Michigan Public Law Working Paper No. 200, available at SSRN.
  • Lawrence W. Waggoner, Congress Should Impose a Two-Generation Limit on the GST Exemption: Here’s Why (July 15, 2010). U of Michigan Public Law Working Paper No. 205, available at SSRN.

Trusts and estates law reform generally follows one of two patterns. In the first, which we can characterize as top-down, the American Law Institute or the Uniform Law Commission sponsors a reform through a new Restatement or Uniform Law, often but not always prepared in concert. Top-down reforms are typically designed to update the law in accord with emerging academic and elite practitioner policy consensus on necessary revision to the canon. The prudent investor rule is perhaps the quintessential example of a successful top-down reform. In the other law reform pattern, which we can characterize as bottom-up, local bankers and lawyers lobby state lawmakers for a specific reform. Bottom-up reforms are usually meant to attract trust business (think perpetual or asset protection trusts), but not always. Some are meant to fill a gap in the top-down reforms (think unitrust, an alternative to the power of adjustment under the Uniform Principal and Income Act). Either way, owing to the commercial necessity of appealing to apparent donor preferences, the bottom-up reforms tend to enhance the reach of the dead hand (even the unitrust, a gap-filling bottom-up reform, is more solicitous of the dead hand than its top-down alternative, the power of adjustment).

In a quartet of short essays, Professor Lawrence W. Waggoner (Michigan) examines a pair of top-down reforms, just approved by the ALI, which will appear in the final volume of the Restatement (Third) of Property: Wills and Other Donative Transfers, for which Waggoner is the reporter. The reforms are: (1) a simplification of the law of estates and future interests, and (2) a reworking of the Rule Against Perpetuities. The reforms prompt two questions: (1) why these reforms, and (2) will they take hold? Waggoner’s essays focus primarily on the former question, though he gives some treatment to the latter, particularly as regards the new Rule Against Perpetuities. Continue reading "Top-Down versus Bottom-Up Law Reform in Trusts and Estates: Future Interests and Perpetuities"

Jettisoning Chevron

Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779 (2010), available at SSRN.

As one academic, among many, who has made my scholarly reputation based in part on the landmark case of Chevron U.S.A., Inc. v. Nat. Resources Defense Council, 467 U.S. 837 (1984), I noted with some concern Professor Jack Beermann’s latest  work entitled:  End the Failed Chevron Experiment Now:  How Chevron Has Failed and Why it Can and Should be Overruled. Overrule Chevron?  End the experiment? Say it ain’t so! Hadn’t Chevron offered “a wonderful new world … full of promise for administrative-law professors in need of tenure articles….?”  National Cable & Telecommuns. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 1019 (2005) (Scalia, J., dissenting).

I approached his article with some trepidation but also with great interest.  Why would anyone want to overrule Chevron?  Professor Beermann succinctly answers this question in his abstract:  “Chevron has complicated judicial review and, at best, it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled.”  Intrigued, I forged ahead. Continue reading "Jettisoning Chevron"

A Feminist Critique of Propensity Evidence Admitted Against Indians in Sexual Assault and Child Molestation Cases

Aviva Orenstein, Propensity or Stereotype?: A Misguided Evidence Experiment in Indian Country, 19 Cornell J. Law & Pub. Pol. 173 (2009), available at SSRN.

Changing evidentiary policy to make it easier to convict rapists and child abusers has been high on the agenda of many feminists who have decried the difficulty of holding such perpetrators accountable, even when they commit serial crimes. In 1994, in a well documented trade, Congress adopted Federal Rules of Evidence 413-415 as the quid pro quo for securing the deciding vote necessary to pass the then pending Violent Crime Control Act. Rules 413-414 specifically permit propensity evidence in sexual assault and child molestation cases. Professor Aviva Orenstein investigates how these rules have been (mis)applied in federal court. Her thought-provoking essay decries the disproportionate use of the rules against Indian defendants, and suggests the repeated presence of negatively stereotyped Indian defendants may actually help perpetuate the myth that rapists are easily identified “others,” an attitude that makes acquaintance rapes incredibly difficult to prove. She also suggests that stereotyping reinforces the propensity evidence and may lead judges to more willingly accept character evidence beyond sex crimes,

Orenstein has been influential in applying feminist jurisprudence to evidentiary issues, not only concerning topics that are associated with women’s issues such as rape and domestic violence, but also in contexts where the link is less obvious, such as apologies by doctors. Previously, she critiqued the use of propensity evidence in No Bad Men!: A Feminist Analysis of Character Evidence in Rape Trials, 49  Hastings L.J. 663 (1998), suggesting such evidence violates feminist values and presenting alternative evidentiary solutions to strengthening the government’s case. Like her, I view myself as a feminist who is sympathetic to the plight of victims of rape and child abuse, while remaining sensitive to issues of fairness and constitutional rights of criminal defendants. Thus, I knew this article would analyze difficult questions such as whether stereotyping of Indians1 is encouraged by the propensity rules, and why these rules do not necessarily further feminist goals. Continue reading "A Feminist Critique of Propensity Evidence Admitted Against Indians in Sexual Assault and Child Molestation Cases"

The Motion to Dismiss for Workplace Plaintiffs after Iqbal and Twombly

Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark Law Review 15 (2010), at SSRN.

In Bell Atlantic v. Twombly, 550 U.S. 544 (2007), the Supreme Court adopted a plausibility test for pleading federal claims, replacing the more liberal standard from Conley v. Gibson, 355 U.S. 41 (1957), which had permitted a case to proceed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  Id. at 45-46.  While Twombly was an antitrust case, the Supreme Court made clear in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), that the newly announced plausibility standard would apply to all civil cases.  In her recent article, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, Professor Suja A. Thomas demonstrates how these recent Supreme Court decisions have transformed the motion to dismiss into the motion for summary judgment.  This piece builds off of the strong foundation Professor Thomas has already established in this area, including her articles Why the Motion to Dismiss is Now Unconstitutional, 92 Minn. L. Rev. 1851 (2008), and Why Summary Judgment is Unconstitutional, 93 Va. L. Rev. 139 (2007).  The piece highlights the difficulties employment discrimination plaintiffs may now face when opposing a motion to dismiss.

In this article, Professor Thomas examines how, after Twombly and Iqbal, the standards for the motion to dismiss and the motion for summary judgment are now nearly identical.  In particular, both standards require a court to look to whether a claim is plausible.   After Iqbal, the plausibility test now clearly applies to motions to dismiss, and Professor Thomas demonstrates how the plausibility standard has similarly been applied in the summary judgment context.  In addition, for both the motion to dismiss and the motion for summary judgment, “courts assess both the inferences favoring the moving party and the inferences favoring the nonmoving party.”  (P. 30.)  Finally, according to Professor Thomas, when considering either type of motion, the courts are actively using their own opinions and views of the evidence to decide whether a particular claim should proceed. Continue reading "The Motion to Dismiss for Workplace Plaintiffs after Iqbal and Twombly"

The Ghetto and the Prison

Loic Wacquant, Untitled Essay, in Race, Incarceration, and American Values 57 (Glenn Loury, ed.,  2008).

If there is a single issue that ought to dominate all others in scholarship about race, it should be the hyperincarceration of black men.   And if I had to recommend one piece of scholarship on this issue to read, it would be a recently published essay by Loic Wacquant.  Wacquant contributed this essay (which has no title) to a slim and elegant volume edited by Glenn Loury.  Wacquant’s short contribution is more than just provocative; it is a bit mind blowing, for reasons that I will explain.  The essay draws on a decade’s worth of work by Wacquant, synthesized here into seven short pages.  I am happy to note that, owing to Loury’s visibility, both the issue and Wacquant’s contribution now are finally likely to get the attention they deserve.

Wacquant sets out his argument in four steps.  First, Wacquant argues that hyperincarceration targets a very specific population by race and class:  poor black men in the crumbling ghetto.   Several commentators have suggested that the spike in incarceration rates can be attributed to a general increase in crime and punishment. Using available statistics, Wacquant demonstrates that we are imprisoning more people even controlling for the crime rate; the number of convictions per 10,000 “index crimes” has quintupled, from 21 in 1975 to 106 in 1999.  Moreover, these new convictions are of black men: the predominant race of prisoners has flipped, from 70% white just after World War II to the current rate of 70% non-white. Continue reading "The Ghetto and the Prison"

THE GOOD, THE BAD AND (PERHAPS) THE UGLY OF A POPULIST COURT

David Strauss, The Modernizing Mission of Judicial Review, 76 U. Chi. L. Rev.  859 (2009).

In a field that crackles with normativity, David Strauss has written an article that provides a genuinely illuminating description of the rationale that underlies many recent Supreme Court decisions.  The Court, he argues, often follows a principle that he describes as “modernizing.”  This consists of two basic elements.  The first is that the Court will apply a sort of strict scrutiny to any statute it regards as “out of step with current popular sentiment” and will invalidate the statute if there is any possible doctrinal ground for doing so.  The second element is that the Court will reconsider its decision if subsequent events show that its conclusion was mistaken and that the statute actually had popular support.  Modernization is rarely invoked as the sole basis for a decision, according to Strauss, but it is not a subconscious tropism or a clandestine connivance either.  Rather, it functions as a supporting principle that appears regularly in the opinion’s rationale.

Strauss supports his observation with an extensive and thoughtful survey of recent Court decisions.  Exhibit A for the first element of modernization are the Court’s Eighth Amendment decisions, specifically Roper v. Simmons (forbidding execution of a minor), Atkins v. Virginia (forbidding execution of a mentally retarded person), and Kennedy v. Louisiana (forbidding execution for the non-lethal rape of a child).  In all these cases, the Court noted that the death penalty was an archaic provision that conflicted with the general tenor of popular opinion.  Exhibit A for the second element of modernization are the 1972 decision in Furman v. Georgia, where the Court declared capital punishment to be cruel and unusual, and the 1976 retrenchments, including Gregg v. Georgia, where the Court upheld the death penalty after 35 states reenacted death penalty statutes.  Other cases that reveal the Court’s modernizing inclinations include Virginia v. U.S., which struck down VMI’s refusal to admit women, Griswold v. Connecticut, and Lawrence v. Texas.  Strauss includes some other cases that push his point a bit too far, such as Moore v. City of East Cleveland, but, generally speaking, he makes his case in a convincing manner. Continue reading "THE GOOD, THE BAD AND (PERHAPS) THE UGLY OF A POPULIST COURT"

The Effect of State and Federal Regulation on Charitable Giving: A Historical Analysis

Kristine S. Knaplund, Charity for the Death Tax? The Impact of Legislation on Charitable Bequests, 45 Gonz. L. Rev. 713 (2010), available at SSRN.

How sturdy is the charitable impulse in the face of federal and state regulation, and would the removal of an estate tax benefit for charitable bequests smother it?  Professor Kristine S. Knaplund of Pepperdine explores this conundrum from a creative and unique perspective in her new article.

The article is a story of American legal history and the persistent charitable drive.  Professor Knaplund points out that charitable bequests have taken their legal knocks before, and still emerged strong.  Her article guides us through a variety of legislative acts, both state and federal, that altered restrictions or incentives to make charitable gifts.  Throughout the article, Professor Knaplund skillfully juxtaposes the federal regimes (largely tax acts) with contemporaneous state law developments. Continue reading "The Effect of State and Federal Regulation on Charitable Giving: A Historical Analysis"

Embattled Delaware

Mark J. Roe, Delaware’s Shrinking Half-Life, 62 Stan. L. Rev.125 (2009).

Poor Delaware.  The small state (45th in population and 49th in geographic size) is the dominant corporate law jurisdiction in the United States, and for decades the academic community has been fascinated with the reasons why.  Initially, scholars portrayed Delaware as the savvy champion of a fierce competition for corporate charters.  The quality of its courts, the richness of its case law, and the responsiveness of its legislature made Delaware the most attractive place to incorporate for US public companies.  When Marcel Kahan and Ehud Kamar’s wrote The Myth of State Competition in Corporate Law, 55 Stan. L. Rev. 679 (2002), the academic community’s view of Delaware had changed:  Delaware was not facing direct competition from other states, but rather winning by default.

More so than any other corporate law scholar, Mark Roe has tried to explain why Delaware still has much to fear.  Roe is well known for his argument, articulated in Delaware’s Politics, 118 Harv. L. Rev. 2491 (2005), that Delaware faces a competitive threat from the possibility of corporate governance regulation by the federal government.  Roe’s analysis, originally written in the wake of the Sarbanes-Oxley Act of 2002, has proven prescient with the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act last July, which introduced a host of significant corporate governance reforms for US public companies, including say-on-pay and proxy access. Continue reading "Embattled Delaware"

Exposing the Regulatory Reform Agenda of Large Law Firms

John Flood, The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation,  59 Current Sociology 2011, available at SSRN.

Lawyers and legal academics, especially in the US, have been very interested in the radical changes taking place to the regulation of the legal profession in England and Wales. These reforms will allow alternative “business structures” for law firms and put in place an independent “super-regulator” overseeing the legal profession. Similar reforms have already been instituted in Australia, generating their own share of interest. Much of the debate has focused on the possibilities of law firms incorporating and publicly listing their shares.  The most strident proponents of the new regulation welcome it as important economic innovation, while critics herald these developments as the collapse of the profession as we know it.

John Flood’s paper, “The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation”, forthcoming in Current Sociology and currently available on SSRN, provides a though-provoking analysis of how large law firms “are undermining, modifying, escaping and ultimately reconstructing professional regulation regimes.”  Flood’s paper was part of an excellent panel at the International Legal Ethics Conference in Stanford in July 2010, which included papers by Judith Maute and Andy Boon that also provided nuanced and sociologically insightful perspectives on the reforms overcoming the English legal profession. Continue reading "Exposing the Regulatory Reform Agenda of Large Law Firms"

Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies

Ellen Dannin, Hoffman Plastics as Labor Law—Equality at Last for Immigrant Workers?, 44 U.S.F. L. Rev. 393 (2009), available at SSRN.

In Marbury v. Madison, the Supreme Court early on affirmed as “indisputable” the rule “that where there is a legal right, there is also a legal remedy” and “that every right, when withheld, must have a remedy, and every injury its proper redress.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 William Blackstone, Commentaries *23, *109).

But while black letter law so instructs, employee status under the National Labor Relations Act does not always guarantee backpay to victims of unfair labor practices—or so explains Ellen Dannin in her well-documented review of the by now infamous labor-immigration case, Hoffman Plastics Compounds, Inc. v. N.LR.B., 535 U.S. 137 (2002).  Her article, which was part of the University of San Francisco’s symposium issue—The Evolving Definition of the Immigrant Worker: The Intersection Between Employment, Labor, and Human Rights Law—meticulously dissects the language of the Supreme Court’s opinion and the oral argument to show that Hoffman Plastics’ holding—that employers are not liable in backpay for violating the labor law rights of undocumented workers—is not an anomaly. Instead, it fits neatly into an historical trend of judicial amendments to the NLRA. Continue reading "Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies"

Regulating Constitutional Law

There is considerable overlap between administrative law and constitutional law. The appointment of particular agency leaders without Senate confirmation, ex parte communication between an agency and interested persons in a rulemaking process, and the type and timing of a hearing used in terminating a government benefit, for example, can raise constitutional issues. These topics generally receive some attention, at least in the academic literature and at times in the courts.

Sophia Lee’s exceptional article, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, turns our attention from these more conventional explorations of the overlap to “regulatory agencies’ interpretation and implementation of constitutional law,” what Lee terms “administrative constitutionalism.” The article compares the contrasting responses of the Federal Communications Commission and the Federal Power Commission to pressure to use the state action doctrine to enact and enforce employment policies aimed at furthering equal employment by race, sex, and ethnicity, mainly in the 1960s and 1970s. The FCC did implement equal employment rules, largely independent of direct presidential or congressional influence, while the FPC did not. Continue reading "Regulating Constitutional Law"

The Small-c constitution, Circa 1925

Herbert W. Horwill, The Usages of the American Constitution (1925).

A great deal of recent work distinguishes the small-c constitution from the Constitution.  The latter is the written document, whereas the former is an amorphous and ever-changing body of constitutional norms, customs, and traditions – “constitutional conventions,” to use the umbrella term that Commonwealth lawyers have developed to talk about unwritten constitutions.  The recent work on small-c constitutionalism, however, has almost invariably neglected a classic and illuminating book on constitutional conventions in the United States: Horwill’s Usages of the American Constitution.  A “neglected classic” sounds like an oxymoron, but Horwill’s book is proof that such a thing can exist.

Horwill was an English writer who lived and traveled in America and reported upon its natives and their curious customs for an audience in the Old World; his book thus falls into a genre defined by Tocqueville and Bryce.  Because the past is another country, many of the constitutional usages that Horwill discussed in 1925 seem exotic today.  In the 19th century, there was apparently a constitutional convention that the President should not travel outside the territory of the United States during his term of office.  The convention was sufficiently powerful, Horwill relates, that presidents would meet their Mexican counterparts half-way across a bridge over the Rio Grande.  Woodrow Wilson shattered the convention with his extended stay in Paris after the First World War, and it has now vanished from view altogether. Continue reading "The Small-c constitution, Circa 1925"

The Small-c constitution, Circa 1925

Herbert W. Horwill, The Usages of the American Constitution (1925).

A great deal of recent work distinguishes the small-c constitution from the Constitution.  The latter is the written document, whereas the former is an amorphous and ever-changing body of constitutional norms, customs, and traditions – “constitutional conventions,” to use the umbrella term that Commonwealth lawyers have developed to talk about unwritten constitutions.  The recent work on small-c constitutionalism, however, has almost invariably neglected a classic and illuminating book on constitutional conventions in the United States: Horwill’s Usages of the American Constitution.  A “neglected classic” sounds like an oxymoron, but Horwill’s book is proof that such a thing can exist.

Horwill was an English writer who lived and traveled in America and reported upon its natives and their curious customs for an audience in the Old World; his book thus falls into a genre defined by Tocqueville and Bryce.  Because the past is another country, many of the constitutional usages that Horwill discussed in 1925 seem exotic today.  In the 19th century, there was apparently a constitutional convention that the President should not travel outside the territory of the United States during his term of office.  The convention was sufficiently powerful, Horwill relates, that presidents would meet their Mexican counterparts half-way across a bridge over the Rio Grande.  Woodrow Wilson shattered the convention with his extended stay in Paris after the First World War, and it has now vanished from view altogether. Continue reading "The Small-c constitution, Circa 1925"

New Jotwell Section: Classics

Jotwell is an online journal devoted to reviews of the great recent writing related to the law that top scholars in the field believe deserves a wide readership.

The Classics section, however, is a little different: it provides a home for the occasional review of classic works of law, especially those unjustly neglected.  (To qualify as a ‘classic’ for this purpose the work must have been published at least 50 years before the review.)  Unlike Jotwell’s other sections, the Classics Section doesn’t have a board of editors, nor will we attempt a regular publication schedule.   We’ll publish something appropriate only if and when someone is moved to write it.

New Jotwell Section: Classics

Jotwell is an online journal devoted to reviews of the great recent writing related to the law that top scholars in the field believe deserves a wide readership.

The Classics section, however, is a little different: it provides a home for the occasional review of classic works of law, especially those unjustly neglected.  (To qualify as a ‘classic’ for this purpose the work must have been published at least 50 years before the review.)  Unlike Jotwell’s other sections, the Classics Section doesn’t have a board of editors, nor will we attempt a regular publication schedule.   We’ll publish something appropriate only if and when someone is moved to write it.

Mirror, Mirror on the Wall, Is China’s Trust the Fairest of All?

Frances Foster, American Trust Law in a Chinese Mirror, 94 Minn. L. Rev. 602 (2010).

The People’s Republic of China officially adopted the Western notion of a trust on April 28, 2001, and scholars are now pondering the likely long-term impact on individuals, institutions, and cultural norms in that ancestor-venerating, socialist, civil-law system.  Most of the scholarship is coming from inside China, of course, and the common theme is the need to “nativize” the transplanted trust in order for it to thrive, or at least do no harm, in its new environment.  One Chinese scholar has described the process as “absorbing what is useful and discarding what is not.”

In American Trust Law in a Chinese Mirror, Professor Frances Foster combines impressive trust-law credentials with fluency in Chinese language to unveil and explain a robust and intelligent critique of the so-called American trust.  What makes this article particularly fascinating is Professor Foster’s focus on the implications of this critique to the evolution of trust law in the United States.  As she explains, “legal transplants can provide a mirror for donor countries to see flaws in their own systems and new directions for reform.” Continue reading "Mirror, Mirror on the Wall, Is China’s Trust the Fairest of All?"

Governing Through Sex Crimes?

Corey Rayburn Yung, The Emerging Criminal War Against Sex Offenders (2009, forthcoming Harvard Civil Rights- Civil Liberties Law Review), available at SSRN.

Twenty years or so ago, when I was a baby law professor, I asked a senior critical legal studies scholar for promising areas to write about, and he warned me against taking up criminal law. The problem with criminal law and procedure for a critical thinker, he told me, is that it arrives pre-deconstructed, so to speak. No room for the kind of clever unveiling of buried fundamental contradictions that, one hoped, would be rewarded with tenure. Whether one adopted the political theory language of Carl Schmitt’s “state of exception” or the sociological language of Albert Cohen’s theory of “moral indignation,” American criminal law and procedure, like American Indian law, was driven by extra-doctrinal pressures that were painfully obvious to all.

Twenty years later, this is still true. And a lot of criminal law and procedure scholarship is incredibly boring for this reason: It pretends that doctrinal craft and/or moral theory actually matter. The work that isn’t boring, however, situates criminal law and procedure in its cultural and political context; and the article I like a lot this month is an excellent example, providing a useful guide to an ongoing crisis in American law and culture. Continue reading "Governing Through Sex Crimes?"

A Neglected Strand of Retributivism

Jeremy Waldron, Lex Talionis, 34 Ariz. L. Rev. 25 (1992).

Although Jeremy Waldron’s article on the lex talionis is not as recent as most of the other writings covered by JOTWELL, I came upon it only a couple of years ago.  I feel that it should be discussed here, because it has not received as much attention as it deserves within the philosophy of criminal law.

Retributivism as a philosophy of punishment has emerged in a multitude of forms, but virtually every retributivist maintains that punishments should fit the just deserts of offenders. That abstract idea has been cashed out with somewhat more concrete principles, each of which is itself in need of cashing out.  Many retributivists invoke the notion of commensurateness, as they contend that the severity of any punishment should match the seriousness of the crime(s) for which the punishment is imposed.  Commensurateness, a cardinal property, consists in quantitative equivalence.  Many retributivists additionally or alternatively rely on the notion of proportionality, as they contend that any differences in the severity of punishments should be correlated with differences in the gravity of the crimes for which the punishments are imposed.  Proportionality, an ordinal property, consists in an alignment between two sets of quantitative gradations. Continue reading "A Neglected Strand of Retributivism"

Conceptualizing Comparative Labour Law

Roger Blanpain, Memoirs: What Can I Do For You? (Vanden Broele 2009).

Back in the day, comparative law as taught in most U.S. law schools meant a comparison at quite the abstract level of the civil law and common law systems. While still interesting and valuable, that rather limited approach has been bolstered by approaches that look to specific areas of law within those two more general legal systems. Within the current thrust of comparative scholarship, there are two schools. One is to start with an area or subject of law and then find and compare the laws of the different countries on that particular subject. The second approach is to start with a country and then find the particular subject of interest so that it can be better understood within the specific context of that country.

A problem with the first approach is that it is formalist. Looking at the laws so abstractly leaves them decontextualized. The “law in action” in any particular country may be surprisingly different from what the words suggest or what those words mean in action in different jurisdictions. The second approach emphasizes the significance of context: the culture, politics and economy of the countries examined. With that base, then a specific law or area of the law can be much more completely understood. An example will show the difference between the two approaches. Utilizing the first approach in trying to learn about the Mexican Constitution, you would read it and, based on the language, would predict that the governmental structure in Mexico is much like that in the U.S. because the Mexican Constitution was modeled on our Constitution. Both are organized horizontally at the national level with a separation of powers structure and vertically with a federal system. The second approach would look at the Mexican Constitution in action and conclude that the governmental structures of the two countries have been quite different, notwithstanding the similarity in the structure supposedly established in the two constitutions. At least until the turn into the 21st Century, governmental power in Mexico was essentially concentrated in the hands of one person, the President, who was in effect a term limited absolute monarch. Continue reading "Conceptualizing Comparative Labour Law"

Imperfect Principals and Lobbyist Agency Costs

Matthew Stephenson and Howell Jackson, Essay, Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. Legis. 1 (2010).

One of the secrets to scholarly success is picking interesting topics.  It also helps if your analysis makes an interesting topic even more interesting.  That’s exactly what Matthew Stephenson and Howell Jackson have done in their essay Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. Legis. 1 (2010).  In this well-written and engaging essay, Stephenson and Jackson describe how principal-agent problems manifest themselves in the lobbying context and hypothesize on how these manifestations might affect public policy outcomes.

Wherever there are principals and agents, there are principal-agent problems, but the lobbying context is not one that readily comes to mind as infected by a serious problem.  Lamenting that principal-agent problems in the lobbying context have not received the attention they deserve, Stephenson and Jackson demonstrate that lobbyists are far from perfect agents and that the principal-agent slack in the relationship has serious consequences for lobbying’s public policy outcomes. Continue reading "Imperfect Principals and Lobbyist Agency Costs"

Good Faith Scholarship

Joseph Michael Reagle Jr., Good Faith Collaboration: The Culture of Wikipedia (MIT Press, 2010).

There is a distinctive NYU School of Internet studies: philosophically careful, intellectually critical, rich in detail, and humanely empathetic. Its unofficial dean is Helen “values in design” Nissenbaum; her colleagues and students have included Siva Vaidhyanathan, Michael Zimmer, Gabriella Coleman, Alexander Galloway, and Gaia Bernstein. Almost none of them are lawyers (Seton Hall’s Bernstein being the notable exception), but their work speaks to those of us who are.

One of the most recent additions to the NYU School is Joseph Reagle, who received his Ph.D. in Media, Culture, and Communications in 2008 and is now a fellow at Harvard’s Berkman Center. His new book, Good Faith Collaboration: The Culture of Wikipedia (MIT Press, 2010) is an ethnography of Wikipedia, a modest, beautiful book that analyzes the site’s “good faith collaborative culture.” Reagle offers an extended reading of how this culture emerges from the interplay of ideology, technology, and social practice. Continue reading "Good Faith Scholarship"

Estate Taxation of Reversions

F. Philip Manns, Jr., New Reasons to Remember the Estate Taxation of Reversions, 44 Real Prop. Tr. & Est. L.J. 323 (2009), available at BePress.

Professor F. Philip Manns, Jr.’s article, “New Reasons to Remember the Estate Tax of Reversions,” might have been cheekily (but not inappropriately) titled, “Everything You Really Need to Know about the Estate Tax of Reversions.” A reversion, per Professor Manns, “exists whenever a transferor transfers less than all she owns.” (footnote 12 at P. 327.) In its first main part, the article focuses on how a reversion can arise not only from the transferor’s intent but also from inartful drafting and even by statute or common law decision; in its second main part, the article addresses the gift and estate tax treatment of reversions (however they are created).

Among the many strengths of the article, perhaps its most significant contribution to the existing literature is Professor Manns’ detailed explanation of how to calculate, for purposes of Internal Revenue Code sections 2033 and 2037, the value of a transferor’s reversion. Professor Manns indicates that “no case law, administrative pronouncement, or commentary instructs people how to make such calculations.” (P. 354.) Many sources address the calculations by referring the reader to Revenue Ruling 76-178, 1976-1 CB 273. But that Revenue Ruling merely gives answers without any explanation. In his article, Professor Manns explains the required “probability theory and life contingency actuarial mathematics” (P. 354.) and then impressively provides sample calculations showing all of his work. Continue reading "Estate Taxation of Reversions"

Shining the Light on Negligence

George Sher, Who Knew?  Responsibility Without Awareness (Oxford University Press, 2009).

I’m no fan of punishing the negligent.  Here are a few reasons.  First, when a negligent actor fails to notice, remember, and the like, she lacks the requisite control over her failure.  Her consciousness is not directed to the risk, and thus, she can control her failures only indirectly by, say, taking a prior action to remember.  Second, the reasonable person strikes me as a worrisome construct.  How do you craft the idealized vantage point?  Third, because we are always forgetting, failing to notice, or underestimating risks all the time, these behaviors exhibit no moral defect.  These failures have myriad causes, including the lack of background beliefs, momentary or permanent incapacities, or lack of motivation.  And, we need arguments for why those prior failures are blameworthy.  Notably, although some criminal law theorists defend punishing the negligent, almost no one wants to punish every actor who falls below some objective standard.  Rather, proponents often seek to narrow negligence’s reach to only the “culpably indifferent” and not the stupid and the clumsy.  Yet, we are not given a fair basis for drawing this distinction.

Enter “Who Knew?”  George Sher’s book defends that we can be responsible without being aware.  Although I do not believe that this book ultimately undermines my concerns about punishing the negligent, it refines the state of the debate.  It is beautifully argued and carefully constructed.  Criminal law theorists truly ought to read this book.     Continue reading "Shining the Light on Negligence"

“When Is Using a Firearm Not Really?” — An Eminent Philosopher of Language Helps Us Decide

Philosophers of law and philosophers of language used to hang out together more.  H.L.A. Hart spent Saturday mornings over at J.L. Austin’s in the 1950s and 60s, hashing out questions of meaning and usage with Paul Grice.  Hans Kelsen did not think much of Wittgenstein, but in the 1920s he chummed around with Moritz Schlick, Otto Neurath, and other members of the celebrated Wiener Kreis, the Vienna Circle of philosophers who were making the analysis of language a foreground concern.  But, as the twentieth century wore on, practitioners of the two specialties wandered apart.  For thirty years on, legal philosophers have tended to dwell on somewhat inward debates over legal positivisms and postscripts thereto, while philosophers of language have been on a great hunt for a semantics of natural languages generally, which has led them to investigate things like naming, reference, and the truth conditions of modal and counterfactual statements.  True, the philosophers of law have tried to keep up with the philosophers of language; but, the philosophers of language with the philosophers of law?  Not so much.  There’s no shortage of legal philosophy that purports to say what philosophers of language would say about law, but next to nothing directly from philosophers of language about law.  Are we legal philosophers getting it right?

The silence from the other side of the table made me uneasy.  So I was excited to run across this essay by Scott Soames.  Soames is Director of the School of Philosophy at USC, where he can lunch with Andrei Marmor, the distinguished philosopher of law.  The essay is the concluding chapter of the first volume of Soames’s collected essays, most of which have to do with technical topics in philosophy of language.  The Introduction to the volume is a useful preliminary survey of his views of such things as why linguistic structures aren’t likely to map onto the psychological substructures of linguistic competence, and the respective roles of semantics and pragmatics, as reflected in his “least common denominator” view of semantic content.  At the end of the Introduction, Soames pauses to reminisce: Continue reading "“When Is Using a Firearm Not Really?” — An Eminent Philosopher of Language Helps Us Decide"

The Road to Virtual Equality?

Miriam A. Cherry, A Taxonomy of Virtual Work, 44 Ga. L. Rev. __ (forthcoming 2010), available at SSRN.

What if there was no “place” in the “law of the workplace?”  In her article A Taxonomy of Virtual Work, forthcoming in the Georgia Law Review, Professor Miriam Cherry asks this provocative question, considering the ways in which the law might change to keep pace with the changing realities of work, including virtual realities.  In so doing, Cherry writes an important, cutting-edge piece that helps to ignite a much needed conversation on how law may not only keep up with changing forms of discrimination but also the changing worlds in which discrimination may occur.

The increasing prevalence of what Cherry terms “virtual work” has profound implications for labor and employment law.  As Cherry describes, millions of people worldwide supplement their incomes, entertain themselves, or do both simultaneously by meeting with fellow employees in virtual worlds such as Second Life, solving complicated problems on websites like Innocentive, or casually “clicking” to make money for simple tasks on Amazon.com’s Mechanical Turk.  Cherry argues that these activities are far more than “games” or “pastimes,” and that these “virtual jobs” allow many to work in cyberspace to pay their rent in reality.  Because she is seeking to classify all of the ways that technology influences worklaw, Cherry discusses whistleblowing, harassment, and disability law.  In more depth, she also treats the issues of minimum wage protections, virtual unionization, and employment discrimination in cyberspace. Continue reading "The Road to Virtual Equality?"

Distinction With(out) a Difference: Attribution’s Challenge to Intellectual Property Law

Barton Beebe, Intellectual Property and the Sumptuary Code, 123 Harv. L. Rev 810 (2010).

In his most recent article, Barton Beebe provides a typically sophisticated and rich analysis of the ways in which intellectual property law is used to reinforce exclusivity, much as sumptuary laws have done throughout history.  Such laws, by regulating the fashions of the citizenry, enacted a dialogue about distinction and group identity, in which those permitted to wear certain costuming could communicate to others their inclusion in a particular class.  Sumptuary laws accomplished formally what now sometimes occurs through more vague forces of collective action: the price of a designer handbag forecloses wide adoption (until its double becomes available at Target), and limited editions of collectibles ensure that the competition for exclusivity is played out openly.  The same processes take place in the noncommercial realm: the names given by those in higher socioeconomic classes to their children, for example, trickle down over time to parents in lower socioeconomic classes with particular aspirations for their children, thus diluting the prestige of the name among the wealthy, who then abandon it in the next generation.

The importance of a system of distinction is not necessarily, Prof. Beebe notes, tied to a desire for superiority or opposition, although presumably at least some individuals are so motivated.  Rather, a level of “optimal distinctiveness” allows individuals to construct their own identities while affiliating with other individuals who share their interests.  (Indeed, in some cases, these affiliations coalesce around a message of “counterconformity” that rejects the hierarchy created by status goods, thus resulting in, ironically, a new mode of conformity that further contributes to the clamor of voices all proclaiming themselves to be different.)  And for some consumers, close enough is good enough:  so long as a handbag appears to others to be a designer brand and doesn’t fall apart on repeated uses, it serves both the purpose of holding one’s personal items and the purpose of signaling one’s place in the social and economic hierarchy — as Prof. Beebe phrases it, it represents relative utility, if not full absolute utility. Continue reading "Distinction With(out) a Difference: Attribution’s Challenge to Intellectual Property Law"

Consumption-Based Distinctions Consuming Themselves: The Rise and Fall of Intellectual Property as the Enabler of a Sumptuary Code

Barton Beebe, Intellectual Property and the Sumptuary Code, 123 Harv. L. Rev. 809 (2010).

If you ever find that your reading in the field of intellectual property is becoming repetitive, or if you feel you’ve already cataloged all of the different cookie cutters that are commonly used to stamp out contemporary scholarship, then here’s what you should do: sit down to read Barton Beebe’s Intellectual Property and the Sumptuary Code and enjoy the ride.  It’s not exactly conventional beach reading for the dog days of August, but Beebe does build an intricate sand castle—he articulates a highly original thesis concerning the social function that certain trademark-related doctrines are playing in contemporary society—both expecting and hoping that it will soon collapse under its own weight.

For those of you who, like me, are not entirely literate in the history of fashion, a sumptuary law is a law that regulates luxury expenditure and enforces social hierarchy.  (P. 810.)  A sumptuary code, in turn, is roughly the social-norm analog of a sumptuary law.  It is a semiotic system of consumption practices through which individuals send signals about their differences and similarities.  (P. 812.)1  And unlike sumptuary laws, which have largely disappeared, sumptuary codes are very much alive and well. Continue reading "Consumption-Based Distinctions Consuming Themselves: The Rise and Fall of Intellectual Property as the Enabler of a Sumptuary Code"

E-Government and Inequality in Public Participation

Kay Lehman Schlozman, Sidney Verba, & Henry Brady, Weapon of the Strong? Participatory Inequality and the Internet, Perspectives on Politics 8(2): 487-509 (June 2010).

E-government initiatives by both political parties have sought to broaden citizen participation in the policy process.  The Clinton Administration made early forays into digital government, and the Bush Administration pursued still more substantial efforts by establishing the portal known as Regulations.Gov.  The Obama Administration has launched a major Open Government Initiative that seeks to foster unprecedented levels of transparency and expand participation to counteract the undue influence of the much-castigated “special interests.”   Will e-government efforts like these transform American democracy as proponents sometimes suggest?  The Internet’s ability to strengthen public engagement in the policy process remains an open – ultimately empirical – question.  The early returns, from the late 1990s and early 2000s, appeared rather modest.  As of at least four years ago, the clear weight of the evidence showed that most agency rulemaking escaped participation by ordinary members of the public – even following the advent of the Internet.   Of course, in this fast changing world, a few years can make an enormous difference.  Over the past several years, we have witnessed not only the emergence of Web 2.0 but also the extensive use of the Internet by political candidates, especially Barack Obama in 2008.

A study in the most recent issue of the journal Perspectives on Politics, however, finds little has changed, confirming that the Internet has yet to transform policymaking and politics into a more egalitarian, citizen-centric process.  In “Weapon of the Strong? Participatory Inequality and the Internet,” three distinguished political scientists – Kay Lehman Schlozman (Boston College), Sidney Verba (Harvard), and Henry Brady (UC-Berkeley) – analyze data from one of the most systematic surveys to date on the Internet and public participation, concluding that information technology has made virtually no difference in general patterns of political participation.  Their representative survey of over 2,200 Americans, conducted in August 2008 in cooperation with the Pew Foundation’s Internet and American Life Project, tracked both online and offline citizen participation in politics and policymaking. Continue reading "E-Government and Inequality in Public Participation"

The Court and Politics: What Is The Lesson of FDR’s Confrontation with the Court?

Jeff Shesol, Supreme Power: Franklin Roosevelt vs. The Supreme Court (2010).

For decades after Alexander Bickel’s work, concern with the “countermajoritarian difficulty”– the question of how to justify judicial review in a democratic society–dominated American constitutional scholarship. In recent years, a number of commentators and legal scholars, most significantly my colleague Barry Friedman in his magisterial recent book, The Will of the People, have sought to dissolve this question or suggest it is passé. They argue that there is, as a matter of history and fact, no countermajoritarian difficulty about which to worry. The Supreme Court cannot and does not stray too far from “mainstream public opinion.” If it does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far. And a central chapter in this new story is the Court’s dramatic confrontation with the New Deal, in which the Court eventually bowed in the face of the New Deal’s transformative constitutional vision.

“The lesson of 1937″ is central to modern American constitutional history, as well as to the self-understanding of constitutional law and theory today. But what exactly is that lesson? The conventional takeaway is that public opinion controls the Court. I would recast that wisdom by building in many more qualifications: in a sustained conflict, concerning the most momentous issues of the day, between the Court and an overwhelming consensus across the political branches and the public, the Court will eventually lose if a President gets enough appointments to seize control of the Court. The importance of Jeff Sheshol’s engrossing new book, Supreme Power, is that it shows just how importantis each and every one of those qualifiers. Sheshol’s book has received plenty of (deservedly glowing) attention already, but I write about it here because I do not think its implications for understanding the relationship between the Court and politics have been properly appreciated. Far from confirming the conventional view about “the lesson of 1937,” Supreme Power can be read as turning that lesson on its head: Supreme Power shows that judicial review can remain remarkably independent and countermajoritarian, for only a concatenation of the most extraordinary circumstances will provoke politics and public opinion into imposing major constraints on the modern Court. Continue reading "The Court and Politics: What Is The Lesson of FDR’s Confrontation with the Court?"

Taking Cognizance of Cognitive Bias

Patrick Shin, Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law, Suffolk University Law School Research Paper No. 10-21, Hastings L. J. (forthcoming), available at SSRN.

It’s not that the question hasn’t been adverted to in much of the cognitive bias scholarship in the employment discrimination area, but most of the articles to date have focused on the empirical questions of the degree to which “implicit bias” exists and the extent to which it might influence real world employment decisions. As for whether truly unconscious discrimination is illegal, the analysis is often extremely truncated. The most common answer is essentially a textualist argument (often by scholars who would eschew that approach in other contexts). That is, those who would make such bias actionable, look to Title VII’s prohibition of discrimination “because of” race or sex and conclude that, where it can be proven to have resulted in an adverse employment action, unconscious bias is prohibited. Another common reaction is to look to the Court’s various condemnations of stereotyping and equate them with cognitive bias, although it is not so clear that, say, the partners in Price Waterhouse weren’t aware that they were unhappy that Ann Hopkins wasn’t conforming to views about appropriate behavior for women.

The absence of deep analyses of what Patrick Shin in Liability for Unconscious Discrimination calls the “naïve question” he addresses — “should implicit bias be a basis for disparate treatment liability” — is understandable. Before we make definitive judgments about whether certain conduct should be illegal, we probably should understand it better than we do at this point in our history. Plus, in the garden-variety employment discrimination case, the hard question is rarely reached because the jury is inferring bias from conduct, and whether the bias is conscious but covert or merely implicit doesn’t matter. Of course, one can imagine issues which force the legal question to the surface – whether to admit expert testimony on cognitive biases, for example, or whether the jury should be instructed that, if they believe the defendant’s disavowal of bias, they must find for it. But it’s not an accident that, fifteen years after Professor Krieger wrote Content of Our Categories, we still don’t have a judicial answer to the question of the legal significance of the phenomenon. Continue reading "Taking Cognizance of Cognitive Bias"

Wealth is Just Capital!

Louis Kaplow, Utility from Accumulation, Harvard Law and Economics Discussion Paper No. 654 (2009), available at SSRN.

Wealth, like virtue, is its own reward.  This notion underlies our transfer tax system.  Notwithstanding, discussions of income tax policy frequently view wealth as just deferred future consumption rather than as an end of itself.  Professor Louis Kaplow, in Utility from Accumulation, reminds us that the benefits from having wealth in addition to providing financing for future consumption should be taken into account in all tax analyses and that, if so, very different conclusions on a number of issues can be reached.

The importance of Professor Kaplow’s point cannot be overemphasized.  If wealth is just deferred future consumption, taxing the income from wealth — from savings, from capital — distorts the decision of whether to consume now or in the future.  The resulting incentive to consume sooner rather than later reduces economic efficiency.  An example of tax rules that are consistent with this view is that we now have a very low tax on the return to savings (as a consequence of the low and expansive special rate on capital gains), rather than, as Pre-Reagan, having a lower tax on services (“earned”) income than on the return to wealth. Continue reading "Wealth is Just Capital!"

“Legal epistemology is ninety per cent quantitative. The other half is qualitative.” – Yogi Berra

Larry Laudan & Ronald J. Allen, DEADLY DILEMMAS II: BAIL AND CRIME, 85 Chi.-Kent L. Rev. 23 (2010). Ronald J. Allen & Larry Laudan, DEADLY DILEMMAS, 41 Tex. Tech L. Rev. 65  (2008).

The last couple years, I’ve developed a bit of an SSRN-induced brain crush on epistemologist Larry Laudan, who I’ve not met before, but whose recent work ought to be pressing the criminal justice commentariat to re-think a lot of common assumptions when we talk about trade-offs in the criminal justice system between Type I errors (false convictions) and Type II errors (wrongful acquittals or non-convictions of factually guilty persons).

In particular, the work Laudan’s been doing with Ronald J. Allen (Northwestern) is evidence of toil along the same rich vein of material earlier espied by UVA’s Darryl Brown in his important work on cost-benefit analysis in criminal law, a field that also incorporates the controversial Sunstein-Vermeule death penalty paper from a few years back. Here’s a very short introduction to Laudan’s intellectual agenda that he put up entitled “The elementary epistemic arithmetic of criminal justice.” But in this JOTWELL review, I advert your attention to two pieces Laudan wrote with Allen. The first one, “Deadly Dilemmas,” is a sharp short essay written as part of a symposium at Texas Tech. A more recent paper, entitled “Deadly Dilemmas II: Bail and Crime,” extends to the realm of pretrial release the framework of looking at procedural rules and their real-world costs and tradeoffs. By advocating a more restrictive approach to pretrial release, this second paper also suggests a practical and “modest” proposal to our policies across the country in order to bring down the moral costs of so many possibly preventable serious crimes. Continue reading "“Legal epistemology is ninety per cent quantitative. The other half is qualitative.” – Yogi Berra"

Duty to Diversify: Default v. Mandatory Law

John H. Langbein, Mandatory Rules in the Law of Trusts, 98 Nw. U. L. Rev. 1105 (2004), available on LexisNexis.

As state legislatures contemplate adopting the Uniform Trust Code (UTC), they should consider how it will interface with the Uniform Prudent Investor Act (UPIA).  Consistent with the principles of modern portfolio theory, the UPIA imposes a duty on trustees to diversify investments in the absence of “special circumstances.”  However, the UPIA is a default statute and therefore appears to contemplate that the settlor may negate this duty.  While the UTC is also, as a general rule, a default statute, it does contain fourteen mandatory rules that cannot be altered by the settlor.  Among these rules is the requirement that the trust be maintained for the benefit of the beneficiaries.  Depending on how one reads these uniform statutes, there is a potential conflict: Should a settlor’s direction against diversification be respected on the rationale that the UPIA is a default statute, or should it instead only be respected where it does not result in a violation of the UTC’s benefit-the-beneficiaries rule?

In a 2004 article, Professor John Langbein examined the UTC’s mandatory rules.  He argued that the duty to diversify investments cannot be entirely waived by the settlor.  Rather, just as a settlor cannot create a trust for capricious purposes, so, too, a settlor should not be permitted to waive the duty if it would violate the benefit-of-the-beneficiaries rule.  In other words, the settlor’s investment-related restrictions should not be respected if it would impair the value of the portfolio and thereby inure to the detriment of the beneficiaries.  In his example involving IBM stock, Professor Langbein posited a case where the trust instrument directed the trustee not to diversify.  He explained that modern portfolio theory has shown that such non-diversification creates a risk for which the investor is not compensated and that the settlor should not be permitted to impose foolishly this harm on the beneficiaries.  He also posited a case involving a direction to invest solely in the stock of the bankrupt ENRON corporation, where the trust fund was modest in size and the beneficiaries were the otherwise destitute widow and orphans of the settlor.  He concluded that no court would uphold such a restriction given the risk and reward profiles of the beneficiaries.  Professor Langbein maintained that the benefit-the-beneficiaries rule is designed to articulate the policies underlying the capricious-purpose cases and should serve as an outer limit on the scope of investment-related restrictions that the settlor may impose. Continue reading "Duty to Diversify: Default v. Mandatory Law"

The Legitimacy of International Law

Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law (Oxford, 2010).

On November 2, 2010 the people of Oklahoma will vote on a “Save Our State Amendment” to their constitution, which would forbid Oklahoma courts from even “considering” international law in their judgments. This proposal (already approved by the Oklahoma legislature) reflects a widely shared belief that international law should be disregarded or actively opposed because it is not as “legitimate” as the ordinary legislation of constitutional democracies. Samantha Besson and John Tasioulas have done lawyers, scholars and the public an enormous service in their volume on The Philosophy of International Law by raising the level of debate about the moral and political standards that should govern the assessment (and development) of international institutions. This book raises fundamental questions about the legitimacy and justice of the international legal order and opens the door to international law as a serious subject of philosophical inquiry.

Modern international law began with Hugo Grotius as an exercise in practical philosophy, and the resulting doctrines continue to make the line between law as it is and law as it ought to be much fuzzier at the international level than it is in most states. This gives philosophers and philosophically minded lawyers real authority in determining the future and actual success of international law. Besson and Tasioulas have collected twenty-nine essays by thirty-three leading philosophers and international lawyers addressing the sources and nature of international law, including the role of human rights, economic realities and democracy in determining the contours of international responsibility. These essays clarify why and whether we should care about or obey the dictates of international law. Continue reading "The Legitimacy of International Law"

August Thoughts on Central Banking

Jeffrey Sklansky, The Moneylender as Magistrate: Nicholas Biddle and the Ideological Origins of Central Banking in the United States, 11 Theoretical Inquiries in Law No. 1, Article 12 (2010), available at BePress.

I signed up for the August review slot before considering the August mindset.  Several things about August make it ill-suited to reviewing:  summer is gone, May ideas have hit the wall, and Congress picked July to pass a law that is too-hard-to-teach but too-big-to-skip.  I yearn for holiday fun, theoretical breakthrough, and instructional clarity, combined.  And I happen on last winter’s symposium in Theoretical Inquiries in Law, Money Matters:  The Law, Economics, and Politics of Currency, and historian Jeffrey Sklansky’s article on Nicholas Biddle, President of the Second Bank of the United States.

The volume is part of a wave of crisis-inspired scholarship that is helping fill the wide and widely-acknowledged gap in legal treatments of macroeconomics and finance.  This lot stands out for its thorough interdisciplinarity, its thematic coherence, and the gratifying match between what it promises and what it delivers.  Contributions from law, economics, history, sociology, and political science are all at impressive levels, but more importantly, they work well together while exploiting the particular advantage of each discipline.  Although none offers a grand legal theory of money or a spell to stop crises, together, the articles begin to tease out a picture of the law’s role in constructing money at the intersection of public and private credit, domestic and international regulation—exposing the political, contingent, and instrumental character of money law, even as they highlight the power of legal ideas and techniques. Continue reading "August Thoughts on Central Banking"

Summer Break

Jotwell is taking a short summer break.

Posting will resume on Tuesday, September 7.

Thank you for reading, and for your support.

Reversing by Degrees

Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), Georgetown Law Journal (forthcoming 2010), available at SSRN.
Paul Horwitz

Paul Horwitz

One of the favorite accusations lobbed against the Roberts Court by its critics is that it frequently engages in “stealth overruling.”  It carves away at old precedents without expressly rejecting them, distorting them or limiting them to their facts and leaving them undone in all but name.  In the view of the modern Court’s critics, this is a new and very bad habit.  To repurpose the famous “umpire” analogy offered by Chief Justice Roberts at his confirmation hearings, it is like watching an umpire manipulating the strike zone until it is sometimes as large as the Solar System and sometimes as narrow as the eye of the needle.  Not many sports fans like umpires, but we can admire them for doing their job.  Not so when we believe they are finding ways to cheat the system and bend the rules.   It is far from clear that stealth overruling is new, and it can be used to what most of us agree is good effect: the Court spent decades removing the ground from underneath Plessy v. Ferguson, one brick at a time, until it was ready to topple with the slightest push.  To understand stealth overruling as more than a useful rhetorical stick with which to beat the Roberts Court, we must understand better what a stealth overruling is and what costs and benefits are involved.

That is the goal of The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), a fine new piece by Professor Barry Friedman of New York University School of Law.  By making stealth overruling an object of careful academic study, Friedman hopes to make its nature more apparent and make possible a “normative judgment” of the phenomenon “based on facts, not speculation.”  It is a worthy goal, and Friedman largely rises to the task.  One will come away from his article with a clearer and less passion-clouded view of what stealth overruling involves and why we might disapprove of it.  I want to suggest, however, that there are some internal problems with Friedman’s account, and one big question mark.  And I want to suggest an alternative account of what is troubling about stealth overrulings, one that is more closely connected to broader problems of constitutional jurisprudence than Friedman’s article suggests. Continue reading "Reversing by Degrees"

Grappling with the (In?)significance of Doctrine in Judicial Review

David Zaring, Reasonable Agencies, 96 Va. L. Rev. 135 (2010).

One of the “hotter” areas of administrative law scholarship in the last few years has been the empirical study of the role of legal doctrine in judicial review of agency action.  In a recent Virginia Law Review article titled Reasonable Agencies, Professor David Zaring adds to this growing body of scholarship by reporting new empirical research on appellate courts’ review of agencies’ formal findings of fact using substantial evidence review.  His main goal, however, is not simply to add yet another empirical study to the pile.  Rather, Professor Zaring draws upon the important empirical work done by others, such as Thomas Miles, Cass Sunstein, William Eskridge, Lauren Baer, Kristin Hickman and Matthew Krueger, and he aggregates the various studies in a way that has not been done before.  Ultimately, his goal is to draw broad conclusions about how courts apply administrative law’s complex judicial review doctrines and to argue that the law of judicial review descriptively has been and normatively should be simplified into one “reasonable agency” standard.

Professor Zaring begins by surveying the law of judicial review and summarizing six different administrative law doctrines that he identifies:  (1) Chevron deference used to review agency interpretations of ambiguous statutes; (2) the less deferential Skidmore standard, which applies when Chevron’s stronger version of deference is inapplicable; (3) de novo review; (4) arbitrary and capricious review applied to informal factual findings; (5) substantial evidence review applied to formal factual findings; and (6) general arbitrariness review used to test the rationality of agency decisions or the adequacy of reasons given.  As Professor Zaring describes, determining exactly which of these standards of review to apply can be a daunting task for courts and litigants, forcing them to sort through many complicated questions, such as whether the agency action involved fact finding, legal interpretation, or policymaking. Continue reading "Grappling with the (In?)significance of Doctrine in Judicial Review"

The Moral Within, The Law Without

The common complaint that the distinction between Kant’s moral and legal philosophy is unknown is not strictly true.  Many engaged in legal philosophy have encountered, time and again, the reminder (or admonition) to treat with care the distinction between Kant’s ethics and the rechtlehre.  Further, Kant’s political philosophy has been the subject of many fine books over the last quarter century.  What is difficult, rather, is to keep the distinction foremost in one’s mind when the philosophical heat, so to speak, is turned on.  Well intentioned, one notes the critical distinction between the purity of a will acting on moral reasons undergirding Kant’s ethics and the preservation of equal external freedom on which Kant’s political philosophy is based.  Yet when thorny questions are leveled, it is too easy to slip into familiar groves, weighing whether an action is appropriately prohibited by measuring its legitimacy against, say, the Categorical Imperative.

One problem, I suspect, is the lack of a text, close at intellectual hand, which has carefully explored Kant’s political philosophy and explicated its branches  in a wide range of subject matters.  Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy could by its intelligence, clarity and ambition fundamentally arrest and repair the sloppiness with which Kant’s political and moral philosophy are too often jumbled. Continue reading "The Moral Within, The Law Without"

Is There An Unreasonable Accommodation? Is There A Due Hardship?

Mark C. Weber, Unreasonable Accommodation and Due Hardship, Fla. L. Rev (forthcoming 2010), available at SSRN.

The ADA Amendments Act of 2008 made significant changes to the Americans with Disabilities Act’s definition of “disability.”  As a result, judges, practicing lawyers, and academics are now trying to figure out what those changes really mean in practice.  One aspect of the ADA that Congress left largely untouched, however, is the statutory language concerning the reasonable accommodation and undue hardship requirements.  Arguably, this failure to act is unfortunate in light of the fact that more individuals will now be able to claim disability status under the ADA than before, thus forcing courts and employers to consider whether these individuals are entitled to an accommodation and, if so, whether their requested accommodations are reasonable.  As it stands now, the statutory language and decisional law are hardly models of clarity.

Professor Mark C. Weber attempts to provide some clarification with his latest article Unreasonable Accommodation and Due Hardship.  Weber’s main argument is that Continue reading "Is There An Unreasonable Accommodation? Is There A Due Hardship?"

A Critical Race Theory Analysis of the Influence of Race in 19th Century will contests

Kevin Noble Maillard, The Color of Testamentary Freedom, 62 SMU L. Rev. 1783 (2009), available at SSRN.

This work of recent scholarship in the field of wills law and legal history is an excellent and thought provoking piece and anyone interested in a critical analysis of race in its historical context should read it. This article is quite special and well worth reading for its detailed archival research and its innovative analytical approach. It is a welcome addition to the legal scholarship that studies the influence of race in the United States legal system, particularly in the area of Trusts and Estates.

In this beautifully written and thoroughly researched article, Kevin Noble Maillard, an Assistant Professor at Syracuse University College of Law and the Director, Angela Cooney Colloquium for Law and Humanities brings to bear his knowledge of Critical Race Theory, and Critical Legal Studies into the realm of the law of wills.
Professor Maillard initially observes how wills in which the main devisees are nontraditional close family members of the testator pose tremendous challenges to courts that have to decide the posthumous wishes of the testator. This is even more the case when these wills have excluded collateral heirs. He then points out that the collateral heirs who object to will provisions where the bequests to the nontraditional family members seem to expand the definition of the testator’s family stand to benefit from the tension between testamentary freedom and the social deviance of the family. In such instances, courts may privilege the interests of collateral heirs to the detriment of the nontraditional close family member. These nontraditional close family members are usually the unmarried cohabitant and nonmarital children of the testator, often of a different race than the testator.  In Professor Maillard’s view, wills with nontraditional family devisees act as evidence of moral or social transgressions, such as interracial sex and extramarital reproduction. This may be a reason why such wills are often subject to will contests by collateral heirs, who aim to use their white privilege and legitimacy status to overcome the clear intent of the testator. Continue reading "A Critical Race Theory Analysis of the Influence of Race in 19th Century will contests"

Marks on Marks

Mark A. Lemley & Mark P. McKenna, Owning Mark(et)s, Stanford Law and Economics Olin Working Paper No. 395 (May 2010), available at SSRN.

There’s nothing like the realpolitik of copyright to push you into the arms of trademark law (see Dotan Oliar on Bill Patry, supra), but as Mark Lemley and Mark McKenna reveal in Owning Mark(et)s, there’s plenty of corporatism at work in the evolution of trademark law, too. Lemley and McKenna don’t put it that way, and they probably wouldn’t. But it’s hard to read Owning Mark(et)s without reflecting on how thoroughly legal rules are changing to favor the great and powerful, whose primary goal, as ever, is to foreclose markets to new entrants—including markets that the great and powerful haven’t entered.

Knowing that it doesn’t pay to be a bully, trademark owners have styled themselves victims of junior users who, in using established marks in “unrelated” markets, “are mere free-riders, reaping where they have not sown.” This may sound appealing, but trademark rights are supposed to flow from use in trade. One who hasn’t entered a market isn’t supposed to “own” it. As Lemley and McKenna write, “[t]he idea that a mark owner is harmed because a defendant interferes with its ability to expand operates on a presumption that the mark owner ought to have the right to expand without interference.” But the trademark owner doesn’t have that right unless the law says it does. This is the circularity that “seems to have carried the day in copyright,” and as Lemley and McKenna demonstrate, it’s transforming trademark law, too, as courts give trademark owners priority in markets that their trade hasn’t entered, but to which it might conceivably extend. Continue reading "Marks on Marks"

Who’s Left With the Money?

Jacob Nussim, The Recovery of Unlawful Taxes, 28 Va. Tax. Rev. 893 (2009), available at The Free Online Library.

The Virginia Tax Review always includes something that I end up chewing on for far longer than I expect to, and the most recent number to cross my desk (Spring 2009) is no exception. It includes a piece entitled The Recovery of Unlawful Taxes by Jacob Nussim of the Bar-Ilan Law faculty in Israel.  The piece is an English language version of work that apparently has appeared in Hebrew, and a technical version of the piece has been available on SSRN for a while now.  But the food for my thoughts is all in the readily accessible VTLR version.

Issues relating to refunds of illegal taxes have reemerged recently, at least in the federal system. First came the government’s defeat in the International Court of Trade in the Harbor Maintenance Tax litigation in the 1990’s, and then came continuing litigation despite the government’s recent concessions regarding the Telephone Excise Tax.  Neither case involved major threats to the fisc, but both involve potentially significant changes in the procedural rules that historically have discouraged taxpayers from pursuing claims that federal taxes were unlawfully collected.  If Congress is forced in the coming years to invent new tax instruments, the ground rules for handing challenges to these new tax instruments will become increasingly important. Continue reading "Who’s Left With the Money?"

Juridical Delusions of Control?

Jennifer A. Chandler, The Autonomy of Technology: Do Courts Control Technology or Do They Just Legitimize its Social Acceptance?, 27  Bull. Sci. Tech. & Soc. 339 (2007), available at SSRN.

There’s this feeling I sometimes get browsing law review articles. It happens, like, once or twice in a decade. When it happens, I am so utterly struck by an article’s hypothesis that its supporting arguments practically fall by the wayside. Not because those arguments aren’t important or convincing. Ultimately, they are crucial. But, on rare occasions, the arguments are eclipsed by the author’s incredible insight in the formulation of the research question itself. This feeling that I am describing is the academic’s equivalent to a Jerry McGuire moment.

And, let me just say, Jennifer Chandler’s “The Autonomy of Technology” had me at hello. Continue reading "Juridical Delusions of Control?"

Lessons for the Survivors

John P. Heinz, When Law Firms Fail, 43 Suffolk U. L. Rev. 67 (2009).

When one of the world’s leading authorities on the legal profession writes about the demise of law firms, we should pay some good attention to it. Arguably, the financial crisis in 2008 changed the mindset of many law firm partners and their associates around the world, but to what extent? What lessons can law firms learn from this abrupt downturn after years of expansion both domestically and abroad? John P. Heinz’s article offers insights on the reasons of corporate law firms’ continuous expansion in the past decade and why their developmental strategies led to the failure of many firms in the financial crisis.

Large corporate law firms, despite their variations in areas of practice and professional expertise, follow similar strategies in their management. As Heinz points out, competition among law firms was heightened in the late 20th century by ready access to comparative data concerning the business of the firms. As a result, “profits per partner” has become the single most important statistic in evaluating a law firm’s performance. Indeed, a law firm chairman even described it as “our stock price” (p. 69). Heinz argues that this unitary evaluation standard has led to risky strategies in recruiting/eliminating partners and diversifying practice areas, with the goal of getting a profits per partner “higher than the next firm’s” (p. 70). When the corporate law market was booming, firms often had enough profit margins to afford those risky strategies, such as focusing on high-value financial transactions work. But now, the negative consequences are clearly seen in many large law firms across the world. Continue reading "Lessons for the Survivors"

Dual Parenthood and Inheritance Problems

Melanie B. Jacobs, More Parents, More Money: Reflections on the Financial Implications of Multiple Parentage, 16 Cardozo Journal of Law and Gender 217 (2010), available on SSRN.

The increasing complexity of family formation poses many challenges for law. When as many as five adults could be involved in the production of a single child – egg donor, sperm donor, gestational mother, intended mother and intended father, to take just the example of a complex surrogacy – we have to at least consider the possibility that some of our traditional rules are outdated.  Melanie Jacobs has written several pieces in which she considers whether the “two parent” rule is one of those outdated rules.  In this piece, she considers the financial implications of “multiple parentage,” including the implications for inheritance.  Why limit a child to two parents when additional ones may bring important financial as well as emotional resources to the table?

Courts and legislatures have, when given the opportunity, virtually all reaffirmed the rule that a child can have no more than two legal parents.  Thus, the Supreme Court ruled in Michael H. v. Gerald D. against granting legal parent status to the biological father of a child conceived in adultery.  The mother’s husband was conclusively presumed to be the child’s father under California law, and due process did not require that the biological father be given a formal role in his daughter’s life, even though he had acted as a parent for a significant period of time.  In a telling sentence, which Jacobs quotes, Justice Scalia writes that “law, like nature itself, makes no provision for dual fatherhood.”  And in numerous other cases, a third party with significant ties to a child – and, often, a significant role in planning for the child’s conception and birth – is ruled the odd man out.  Sometimes the excluded party is a lesbian partner who co-parented a child who has a legal father (and thus a second parent); sometimes it is a biological father, as in Michael H., whose rank in the parental hierarchy is trumped by another man’s claim to legal or presumed fatherhood; sometimes it is a former stepparent who engaged in substantial childrearing while married to the child’s mother or father; and sometimes it is one or more parties to a surrogacy, which, like the one described above, may entail the participation of as many as five different adults. Continue reading "Dual Parenthood and Inheritance Problems"

Policing the new Frontier of Workplace Discrimination

Danielle Citron, Law’s Expressive Value In Combating Cyber Gender Harassment, 108 Mich. L. Rev. 373 (2009).

Professor Danielle Citron has authored an important piece that calls for the condemnation of cyber gender harassment. Often downplayed or minimized, this problem, according to Citron, is merely the most recent iteration of abuse perpetrated against women, but inadequately documented, discouraged, and combated. Like domestic violence and sexual harassment before it, cyber gender harassment is in danger of being underestimated until too much harm has already been conferred upon the personal and professional dignity, access, and safety of women everywhere. Decrying the law’s failure to identify the harms that uniquely target and affect women, Citron laments the transmission of a signal by the law that the oppression of women through this kind of abuse is somehow tolerable. Citron is one of the foremost and earliest scholars to call for a cyber civil rights agenda that would explicitly identify cyber harassment as gender discrimination. Her emphasis on the uniqueness of  the harm that flows to women from a practice that while abhorrent, might typically be regarded as gender neutral, is of particular note, and her admonition that the law ought to educate society about this harm to effect societal reform is powerful.

This piece builds on a previous work of Citron’s, Cyber Civil Rights, 89 BULR 61 (2009), which examined the ways in which the law acts to deter and penalize online abuse. Citron now calls upon the law to recognize the unique harms that cyber harassment confers on women as individuals and as a protected class, as well as to root out and to eradicate this phenomenon. As examples of online harassment directed against women, Citron discusses, among others, cyber threats, depictions of violence against women, the publication of victims’ personal information, and attacks launched against feminist blogs and websites. She recalls the disproportionate number of female victims of this harassment and the very frequent implication of female victims’ genders by their explicit mention in the taunts and threats of harassers. As to what should be done about this problem, Citron suggests that extant civil rights legislation can be employed to fill in some of the compensatory and other gaps left open by traditional criminal and tort remedies for cyber harassment. Indeed, invoking caselaw from the 1960s, she boldly posits that Title VII of the Civil Rights Act of 1964 can be invoked when attackers and harassers prevent women from making a living on the basis of their sex. Continue reading "Policing the new Frontier of Workplace Discrimination"

The False Promise of Retributive Proportionality

Alice Ristroph, How (not) to Think Like a Punisher, 61 Fla. L. Rev. 727 (2009), available at SSRN.

As an undergraduate philosophy student, Kantian metaphysics rocked my world.  Kant’s account of human cognition as a priori and synthetic and his forging of complex epistemological theory from that metaphysical observation were like poetry to me.  Further, Kant’s ethical theory seemed like the only one based on more than just an arbitrary first principles or a posteriori human instincts about right and wrong.  Rather, Kant based his moral imperative on noncontradiction, which itself comes from the necessary conditions of cognition.  What could be more reasonable than a moral program based on metaphysical observations about the human condition?  Accordingly, I embraced retributivism with an almost zealous fervor.  It was so clean―as logical as the symmetric property of equality:  Punishment should be given to those who deserve it.  Thus, those who deserve it should be punished.

As I moved from undergrad to law school to the public defender’s office to academia, I continued to be a Kantian.  I continued to believe that the very notion of justice was embodied in the principle that we punish those who deserve it as much as they deserve.  I attributed the mass injustice of the American penal system to the retributive failings of criminal justice actors.  In short, moved by political concerns, legislators, prosecutors, and judges supported severe sentences, despite the fact that most thoughtful people could recognize that such sentences were undeserved.  If only these state actors could be better retributivists, the problems of disproportionate sentencing and skyrocketing prison population would be solved. Continue reading "The False Promise of Retributive Proportionality"

Against the Conventionalist Turn in Legal Theory: Dickson on Hart on the Rule of Recognition

Julie Dickson, Is the Rule of Recognition Really a Conventional Rule?, 27 Oxford J. Legal Stud. 373 (2007) .

Anglophone philosophy of law is remarkably focused on one book – The Concept of Law by H.L.A. Hart. This may be a mistake. It is hard to imagine a single book – much less an introductory work for undergraduates written almost fifty years ago – playing a comparable role in, say, the philosophy of language or mind. But given that The Concept of Law does occupy such an important place in the philosophy of law, it is all the more important to get what Hart said in the book right. Julie Dickson’s recent article does, in a way that has importance for the field more generally.

Hart argued that at the foundation of each legal system there is a practice among officials of enforcing norms only if they satisfy certain ultimate criteria. For example, in England officials enforce norms only if they can be traced back to the Queen-in-Parliament. Hart calls these enforcement criteria the rule of recognition for the legal system. Continue reading "Against the Conventionalist Turn in Legal Theory: Dickson on Hart on the Rule of Recognition"

Institutional Design by Default

M. Elizabeth Magill and Adrian Vermeule, Allocating Power Within Agencies, Yale L.J. (forthcoming), available at SSRN.

The central concern of administrative law is how to control agency discretion.  Agencies are handed enormous authority, and administrative law consists primarily – indeed, almost exclusively – of a set of doctrines designed to inform, curb, or enable other actors to oversee discretionary agency actions.   Administrative law is preoccupied with establishing procedures to prevent agency abuse and designing oversight by non-agency players – the President, Congress, private stakeholders, and, most obviously, the judiciary.    All the core doctrines of administrative law are generally understood as implementing basic decisions regarding institutional choice: who does what?  How should power be divided up amongst these institutions?

In Allocating Powers Within Agencies, Elizabeth Magill and Adrian Vermeule convincingly argue that in operation core administrative law doctrines are not only about institutional choice but also institutional design.  That is, they do not merely allocate authority between agencies and other actors; they also have important consequences for who does what within agencies, for how the institution is designed.  The paper elegantly reviews a number of familiar doctrines and explains the impact they have on how power is allocated within agencies.  The article’s title seems to portend a discussion of how to go about constructing agency organizational charts.  In fact, the article is not about such conscious allocation of responsibility at all.  Rather, it explains how doctrines established without consideration for their impact on internal agency operations do in fact significantly affect how power is allocated within agencies.  It thus makes an explicit and implicit plea that these impacts be thought through rather than incidental and haphazard. Continue reading "Institutional Design by Default"

Inheritance and Presumptions

T.P. Gallanis, Death by Disaster: Anglo-American Presumptions, 1766-2006, in The Law of Presumptions: Essays in Comparative Legal History (R.H. Helmholz & W. David H. Sellar eds., 2009), available at SSRN.

The problem of simultaneous death has troubled inheritance law for many centuries.  If a common accident kills both Mother and Son, and Mother’s will names Son as her primary devisee, does Mother’s property pass through Son’s estate to his heirs?  Or does it pass instead to the person next in line under Mother’s will?

American teachers of trusts and estates know where to look for the answer to this question:  a statute.  Since the mid-twentieth century, widely adopted uniform acts have attempted to solve the puzzle of simultaneous death by establishing a presumption of survivorship.  Yet this was not always the case.  In his new article, “Death by Disaster: Anglo-American Presumptions, 1766-2006,” Thomas Gallanis explores the history of the Anglo-American law of simultaneous death from the eighteenth century to the present day.  A modern lawyer may be surprised to learn that, for much of its history, the common law made no effort to establish legal presumptions to deal with the problem of simultaneous death.  In addition, the statutory presumptions that were eventually adopted in England are quite different from their contemporary American counterparts. Continue reading "Inheritance and Presumptions"

Slicing the Global Tax Pie

M. F. de Wilde, Some Thoughts on a Fair Allocation of Corporate Tax in a Globalizing Economy, 38 Intertax 281 (2010) (abstract at Scholars Portal).

Tax scholarship produced abroad frequently offers a unique perspective on the same knotty domestic and foreign tax issues with which we wrestle here in the United States.  A case in point is the recent article from Maarten de Wilde of Utrecht University, the Netherlands, which combines original thinking with elements of Dutch tax law in proposing a solution to perhaps the most perplexing problem in taxation today; namely, how to allocate the right to tax income between and among competing, sovereign jurisdictions, each of which asserts legitimate residence–or source–based claims to tax the global income of multinational enterprises (MNEs).

The current formula for global tax allocation attempts to assign a source to business income that reflects the physical location in which the income was produced. As de Wilde observes, however, the formula was developed in the 1920s, when there were far fewer MNEs, Europe was decades away from being economically integrated, and technological advances had not produced “e-commerce” and the bewildering array of intangible assets and financial products that are an integral part of the global economy and that have become increasingly difficult to source.  Complicating the essential sourcing problem are state tax systems that are not only internally inconsistent in their treatment of income from domestic and foreign transactions, but also differ among one another in their choice of rates, taxable units, tax bases, treatment of deductions, definitions of particular entities, and a host of other matters.  As a result, much business income is either subjected to double taxation, or to the extent MNEs are able to successfully arbitrage the differences among tax systems, no income taxation at all. Continue reading "Slicing the Global Tax Pie"

Finding a Place for Data in the Patent Troll Debate

Patent lawyers, like many of our kind, are obsessed with classifications, determinations, and definitions: is a patent claim a true invention or is it part of the prior art? Is it an abstract idea or a specific method? Does it claim a means or a function? In fact, the very notion of intellectual “property” is premised on the idea that we can discern one category of things from another in order to establish metes and bounds and enforce exclusion.

No patent classification schema has been more controversial in recent years than that applied to patent litigation plaintiffs that do not make, use, sell or offer for sale a product or service. Are they trolls or investors? Are they rent-seekers or research incubators? Are they pests or pioneers? Such rhetoric has filled essays, academic articles, courtrooms and legislative halls without much actual evidence to support one characterization versus another. Continue reading "Finding a Place for Data in the Patent Troll Debate"

There There? Does State Constitutional Law Exist?

Robert F. Williams, The Law of American State Constitutions (Oxford University Press: 2009).

Robert Williams, who teaches at the Rutgers-Camden Law School, is a long-time and very distinguished laborer in the field of state constitutional law – really, both a pioneer and a leader.  His book looks, at first glance, to be a grand summing up, an attempt at magisterial synthesis.  But it is in fact much better than that.

The table of contents tells the story. Continue reading "There There? Does State Constitutional Law Exist?"

Enforcement and Institutions

Discrimination in employment on the basis of race, color, national origin, sex, and religion has been against the law since 1964, and while norms have certainly changed in that time, the number of allegations of discrimination in the workplace grows every year, suggesting that something is still not right. Figuring out what is a messy question, which is why studies of enforcement and interpretations of Title VII are so welcome to those of us interested in this area.

Margaret Lemos’s current article is no exception. Although the paper focuses mostly on an important gap in the administrative law literature—that is, even though there has been much written on why Congress delegates and how it chooses to delegate at all, very little has been written on how Congress chooses what institution to delegate power to and how to shape that delegation—it also reveals important data about enforcing Title VII, in large part because that statute provides her case study. Moreover, to the extent that so much of the employment discrimination literature focuses on issues concerning the substance of the law or lack thereof, a study of who is making that law fills an important gap in this literature as well. Continue reading "Enforcement and Institutions"

Women and BigLaw: a New Look at the Problem

In the 1970s, during the rise of what was then known as the women’s movement, one popular T-shirt proclaimed: “I haven’t come a long way, and I’m not a baby.” It was a clever riposte to a high-profile cigarette ad campaign of the era that linked smoking and feminism. That T-shirt slogan is one that female lawyers at large firms today might want to adopt as their own.1

In his new article, Eli Wald sheds light on why women in BigLaw have not yet come “a long way.”  He explains that large law firms have adopted a professional ideology of hypercompetitiveness, which has transformed the firms into sites where the opportunity to pursue a balanced life is, by definition, completely absent.  This is “bad news for women lawyers and for the prospect of greater gender equality in the legal profession.”2 (P. 2287).  In fact, it’s bad news for everyone:  according to Joyce Sterling and Nancy Reichman, in the same symposium, “the long hours are taking their toll on male associates as well,” which is confirmed also by Dau-Schmidt et al in the Michigan alumni study. Continue reading "Women and BigLaw: a New Look at the Problem"

An Intriguing Thought Experiment on Culpability

Larry Alexander and Kimberly Kessler Ferzan (with Stephen Morse), Crime and Culpability, Cambridge University Press (2009).

In their important book on criminal law theory, Crime and Culpability, authors Larry Alexander, Kim Ferzan, and Stephen Morse, vigorously and deftly defend the view that criminal liability should turn solely on moral culpability.  They argue that an actor’s moral culpability is based on her acts and the moral significance of her intent to commit certain acts with the knowledge that those acts unleash risks.  As the authors divorce “resulting harm” from the culpability equation, they provide a useful glimpse of a criminal law system focused squarely on the actor’s choice to engage in risky acts.  Their theory of culpability is not novel but their full sweep application of it here paints quite a picture—one with unusual results, as noted below. This book is both thought-provoking and thoughtfully written.  It is hard to put down, at least figuratively.  Like any worthwhile read, aspects of the authors’ arguments continue to haunt its reader long after the arguments seemed to have been put to rest.

Alexander, Ferzan and Morse begin their book with the odd concession that “criminal law’s purpose is the prevention of harm” and that the norms of conduct embodied in criminal law “exist for that purpose.” (P.17.)  This is odd only because as retributivists, they disavow the importance of harm in assessing criminal culpability.  Their “choice” theory of criminal law—a theory finding culpability in the choices we make that unjustly jeopardize the interests of others rather than in the results of those choices—leads to some curious results.  Perhaps most notably, they argue for the elimination of negligent crimes on the ground that those offenses do not demonstrate an insufficient concern to the protected interests of others.  They would also eliminate the line between offenses and defenses—that is the distinction between the prima facie elements of a charge and its exceptions or defeaters.  In addition, they seek to do away with incomplete attempts (and the attendant substantial step formulations), as well as complicity, contending that only the unjustifiable risks that the actor himself unleashes beyond his control count toward culpability.  As if all this weren’t sufficiently radical, the authors also propose designing a criminal code with no list of crimes or wrongs (e.g., rape, murder, robbery), but rather one where a finding of criminality rests on a generic finding of unjustifiable risk creation.  In essence, there is so much fodder for comment and discussion in Crime and Culpability that one hardly knows where to begin. Continue reading "An Intriguing Thought Experiment on Culpability"

Rethinking Legal Postivism

Frederick Schauer, Was Austin Right After All?  On the Role of Sanctions in a Theory of Law, 23 Ratio Juris, 1 (2010), available at SSRN, and Frederick Schauer, Positivism Before Hart, in M.D.A. Freeman, ed., John Austin and His Legacy, available at SSRN.

Survey courses in analytical legal philosophy commonly include brief excerpts from the jurisprudential writings of Jeremy Bentham and John Austin. After a cursory treatment of their work, with emphasis on the “command theory” of law, the focus shifts to H.L.A. Hart’s famous critique of Austin and then to Hart’s own influential version of legal positivism. The prevailing view has long been that Hart’s critique of Austin was decisive and that Hart’s own theory of law expresses legal positivism’s “core commitments.” Both bits of the conventional wisdom come under scrutiny in a pair of provocative recent articles by Frederick Schauer.

In “Was Austin Right After All? On the Role of Sanctions in a Theory of Law,” Schauer explains why, contrary to the prevailing view, Austin’s account of law may have been more nearly accurate than Hart’s. He acknowledges that on many points, Hart identified important deficiencies of Austin’s account. Austin focused, for example, on duty-imposing rules, neglecting the critical and sometimes constitutive role of the power-conferring rules so pervasive in advanced legal systems. And his notion of the sovereign oversimplified legal systems in multiple ways by essentially treating all of law on the model of an absolute monarch’s imposition of rules on obedient subjects. Continue reading "Rethinking Legal Postivism"

Testation, Empiricism and Gender Equality

Daphna Hacker, The Gendered Dimensions of Inheritance: Empirical Food for Legal Thought, 7 J. of Empirical Studies (forthcoming 2010), available at SSRN.

There is a distinct lack of empirical research in the area of inheritance law.  Domestically, inheritance law is the province of fifty different states.  Thus, conducting an empirical study of testamentary patterns is a painstaking process that requires fieldwork in multiple probate courts, often consisting of a tedious review of individual probate court case files or records.  And among the studies that have been done over the years, few have focused on the role of gender in our field.  That gap is the focus on Daphna Hacker’s new article, The Gendered Dimensions of Inheritance: Empirical Food for Legal Thought, in the Journal of Empirical Legal Studies, a peer-edited, peer-refereed, interdisciplinary journal.  Hacker is an Assistant Professor at the Buchman Faculty of Law, Tel Aviv University where she is also a faculty member in the NCJW Women and Gender Studies Program.

In her article, Hacker identifies four historical trends which have created the conditions under which women may exercise broader freedom to bequeath property at death.  These include laws which allowed women to own property in their own right, the abolition of rules that prevented women from inheriting property, the enactment of laws allowing women to be full participants in the labor force and the trend toward recognition of marital property rights in both spouses.  After identifying these trends, Hacker poses the following questions which empirical research could help us answer if it were more widely conducted: Do women take full advantage of this power to bequeath property?  Do they use this power to bequeath wealth as they wish?  Are there gendered dimensions to intestate succession?  And are there differences between the structure and content of men and women’s wills? Continue reading "Testation, Empiricism and Gender Equality"

Health Care Costs and Fiscal Infirmity

Atul Gawande, The Cost Conundrum: What a Texas Town Can Teach Us About Health Care, The New Yorker (June 1, 2009).

Anyone who wants to understand fiscal policy in the United States for the next fifty years will need to understand health care costs.  There are many important issues in tax policy – the income/consumption debate, whether and how to tax wealth (especially at death), how to deal with transfer-pricing problems, when to tax capital gains, how to handle tax protesters, and so on – but the single issue that is going to drive tax policy is health care inflation.

Scary proclamations that the U.S. faces a “long-term fiscal crisis” are actually statements that health care costs could ruin the economy.  If health care costs stop increasing – either by government action or because of some “natural” maturation process in the medical-industrial complex – then there is no long-term fiscal crisis.  The so-called Social Security crisis is an over-hyped non-event, as I have argued elsewhere, and as even the most serious budget hawks will admit.  Nothing else in the budget (certainly not “waste, fraud, and abuse”) even comes close to justifying alarm about the long-term need to raise taxes.  It is all about health care. Continue reading "Health Care Costs and Fiscal Infirmity"

Bill Patry’s War on Copyright Rhetoric

William Patry, Moral Panics and the Copyright Wars (Oxford University Press, 2009)  (summary at OUP; related blog).

Bill Patry’s “Moral Panics and the Copyright Wars” is the latest word on the way in which copyright law has responded to technological change. In eclectic and humorous prose, drawing on history, linguistics, philosophy, behavioral economics and the Bible, among other sources, Patry provides harsh criticism of the ways in which Congress and the copyright system have responded to disruptive technologies such as the VCR and file-sharing networks – and by “responded”, Party means did whatever the content industries demanded.

The book sets out the well-formed perspective of an important figure within the copyright cognoscenti. For almost three decades now, Patry has engaged with the copyright system in various roles, including a practitioner in private practice, full-time academic, author of a multi-volume copyright law treatise, copyright law blogger, copyright advisor to the House of Representatives and policy advisor to the Copyright Office. His intimate familiarity with the copyright system makes the pessimistic tone of his book especially notable. Continue reading "Bill Patry’s War on Copyright Rhetoric"

Deconstructing Stock Options

In “The Non-Option,” David Walker expertly dissects one of the puzzles of employee stock option compensation: why stock options are always granted at the then-current market price for the stock, resulting in “at-the-money” options.  If parties could tailor their compensation packages to individual needs and desires, one would expect that at least some firms would agree to give their employees stock options that had an exercise price lower than market price (known as “in-the money” options).  Indeed, the desire for in-the-money options was so strong that hundreds of companies essentially created them through illegal option backdating.  Recent changes to accounting rules were thought to have dampened the disparity in regulatory treatment between at-the-money and in-the-money options.  Walker’s article, however, explains how tax law has stepped in to continue this familiar bifurcation in treatment.

The narrative of the rise and fall of stock options begins in the early 1990s.  In order to encourage shareholder primacy and efficient corporate management, scholars and policymakers set upon a course of promoting incentive-based executive compensation.  This programme found its instantiation in IRC § 162(m), which allowed companies to take unlimited tax deductions for compensation earned “solely on account of the attainment of one or more performance goals.”  Since the deduction for other pay (such as salary) was limited to $1 million, this gave substantial corporate tax savings to performance-based pay.  Stock options became a natural way to provide this kind of pay.  Longstanding accounting rules took a “face-value” approach to the valuation of options because of the difficulty in calculating their value.  Under these rules, a company incurred no expense (for accounting purposes) when issuing at-the-money options; the options only needed to be expensed when the employee exercised them.  As a result, “costless” and deductible stock options fueled the Internet boom and the late-1990s stock surge.  However, increasing pressure to account for the real value of options led the Financial Accounting Standards Board (FASB) to change its rules in 2005.  FASB now requires that at-the-money options be expensed.  This change, along with the stock market bust in the early 2000s, cooled companies on options and led to more of a mix between options and restricted stock (as Walker describes in this article). Continue reading "Deconstructing Stock Options"

The Return of Banishment: Punishment and Policing

Katherine Beckett & Steve Herbert, Penal Boundaries: Banishment and the Expansion of Punishment, 35 Law & Social Inquiry 1 (2010).

Hear the word “banishment,” and the image that comes to mind will likely hail from an earlier time.  Think Anne Hutchinson’s expulsion from the Massachusetts Bay Colony in the seventeenth century, or the transportation of British and Irish convicts to Australia in the nineteenth century.  Banishment went the way of the rack and screw, so the thinking goes.  Instead, the predominant form of modern punishment is a form of confinement: incarceration.  If modern punishment is incarceration, and the criminal justice system its primary source, then anyone interested in modern punishment need look no further.

One of the chief virtues of a sociological analysis of law is that it loosens the grip of rigid thinking like this, particularly with respect to emerging developments that don’t fit into existing categories of scholarly attention.  This is the goal of Katherine Beckett and Steve Herbert’s Penal Boundaries, Banishment and the Expansion of Punishment, and they’ve achieved it in such a way that makes it a compelling read for scholars and teachers of criminal law. Continue reading "The Return of Banishment: Punishment and Policing"

Armageddon for the Legal Profession?

Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, 2008) (summaries at OUP and Susskind.com).

Legal professionalism is prophesied an apocalypse with increasing frequency. The territory covered by The End of Lawyers? is the threat posed by IT.

Susskind’s big idea is that technology will create a future where lawyers are not the dominant interface between citizens and the law. Acting as a consultant to law firms on IT has confirmed his view that they suffer from conservatism, hostility to innovation and resistance to information technology. He chaired the UK Advisory Panel on Public Sector Information, currently sponsored by the Ministry of Justice, and remains the IT adviser to the Lord Chief Justice of England and Wales. His ideas are glimpsed in the directions that the UK government has taken since Susskind’s 1996 bestseller, The Future of Law. One of his   predictions, online legal communities–cross between Facebook and Wikipedia–sponsored by government surfaced in the Community Legal Service. His ideas have more traction in the UK, but are as transportable as the technology around which they are woven. Continue reading "Armageddon for the Legal Profession?"

Methodology in Jurisprudence

Joseph Raz, Can There Be a Theory of Law?, available at Googlepages; also available in Joseph Raz, Between Theory and Interpretation (Oxford, 2009), pp. 17-46; and in Martin P. Golding & William A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell, 2004), pp. 324-342.

For decades, if not centuries, discussions in Jurisprudence classes often start with the question, “What is Law?”  What then ensues is usually the bandying about of various conventional or off-the-wall definitions (depending on the tastes and inclinations of the teacher or coursebook editor), followed by a predictable reading and discussion of the 1958 Harvard Law Review debate between H. L. A. Hart and Lon Fuller, perhaps with some reference thrown in to Ronald Dworkin, or a natural law theorist (either very old, Thomas Aquinas, or more recent, say, John Finnis).  By then, it is considered safe to abandon discussions of the nature of law and go on to the next topic.

The problem with these discussions is that they skim across the surface of jurisprudential debates without ever reaching the core.  Courses may include debates about whether the Nazis had law or not, or whether we have a moral obligation to obey the law, but still there is little attention to all that is being assumed by any discussion of theorizing about (the nature of) law.  However, one should not be too quick to blame the teachers (or coursebook editors).  Even the theorists who wrote the canonical articles were not always clear, or helpful, about what is going on when theoretical claims are made. Continue reading "Methodology in Jurisprudence"

Conceptualizing Disability Discrimination

Samuel Bagenstos, Law & the Contradictions of the Disability Rights Movement (Yale University Press, 2009).
Michael C. Harper

Michael C. Harper

In a series of law review articles written over the past decade, Professor Bagenstos has established himself as the preeminent academic voice on disability discrimination law. Indeed, the transferable utility of the conceptual insights developed and applied in these articles, in my view, warrants a claim for Bagenstos as the most important scholar of the decade in the general field of employment discrimination law. Anyone with a serious intellectual interest in discrimination law who has not read Bagenstos’s articles should take the occasion of the publication of this pithy and trenchant little volume to familiarize themselves with Bagenstos’s analysis of the political and intellectual assumptions underlying disability law. Those who have read Bagenstos’s work will find the book not redundant, but rather a rewarding reminder and synthesis of his developing view.

The book’s principal project is to highlight how the highly pluralistic disability rights movement’s sometimes divergent contradictory goals and assumptions have been reflected in discrimination law.  In my view, the most important tension within the movement highlighted by Bagenstos derives from a disagreement about the meaning of the social model of disability. Bagenstos notes the general agreement among disability rights advocates that disability is socially rather than medically or physically defined. There is a broad, and appropriate, understanding among these advocates that no physical or mental traits can be defined as abnormal without reference to standards dependent upon social values. These values and accompanying attitudes and the physical environment they create or at least tolerate are what pose special difficulties for some disfavored individuals. The critical intellectual divergence in the movement is over the meaning of this social model for social policy. For some, Bagenstos notes, the model supports a universalism recognizing that all of us are different in ways that warrant legal protection from discrimination. Others, however, use the model to stress the importance of special interventions to create equal opportunities for the stigmatized minority disfavored by social assumptions about what is normal. Such interventions at least in part find support from policy makers wanting to avoid what might otherwise be the social dependency of a part of the population. Continue reading "Conceptualizing Disability Discrimination"

New Jotwell Section: Worklaw

Today we inaugurate a new Jotwell section on Work Law (Labor and Employment Law), edited by Professor Samuel Estreicher of New York University School of Law and Professor Jeffrey Hirsch of the University of Tennessee College of Law. Together they have recruited a great team of Contributing Editors.

Expect other new sections in the Fall. Please get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

Banking on Bailouts

Jeffrey N. Gordon and Christopher Muller, Avoiding Eight-Alarm Fires in the Political Economy of Systemic Risk Management, Columbia Center for Law and Economic Studies Working Paper No. 369, available at SSRN;  Adam Levitin, In Defense of Bailouts, 99 Geo. L.J. (forthcoming 2011), available at SSRN.

The Goldman Sachs circus currently playing Washington certainly is energizing.  And it’s a relief to see some life in the legislative process looking to financial reform.  But the policy posturing is starting to get to me.  Are you, like me, tired of all the claptrap?  For a restorative, take out Jeffrey N. Gordon and Christopher Muller, Avoiding Eight-Alarm Fires in the Political Economy of Systemic Risk Management.

Gordon and Muller offer a learned, yet quite readable review of the financial crisis.  I particularly recommend their treatment of the role played by credit default swaps and their recounting of the steps that ended in the TARP and the role played by Federal Reserve Act section 13(3) in the sequence of events.  The authors know their economics, but in this paper the legal perspective dominates to the reader’s great benefit.  There is also a clear-eyed and reasonable analysis of the policy choices.  Here Gordon and Muller clear up much of the murkiness that surrounds discussions of “resolution authority.” That accomplished, they suggest that we get used to the prospect of future bailouts.  Where a $50 billion fund raises hackles on the Hill, they think $1 trillion is more like it. Continue reading "Banking on Bailouts"

The End of Probate

John Martin, Reconfiguring Estate Settlement, 94 Minn. L. Rev. 42 (2009).

In the nearly 50 years since Norman Dacey’s How to Avoid Probate first hit the best seller list, law reformers have responded by making probate easier, faster, and less expensive – especially for families with modest means and modest needs.   These legal reforms, however, have barely made a dent in the use, and growth of probate avoidance devices.  In a recent article, Reconfiguring Estate Settlement, 94 Minn. L. Rev. 42 (2009), John Martin suggests replacing the probate system with a non-judicial registration system.  Although his proposal builds on the UPC and other reform statutes, Professor Martin contributes some new insights – not the least of which is that any reform effort may be doomed if it retains the “probate” label.

Professor Martin describes the UPC’s flexible system for administration of estates, which allows interested parties to calibrate their contact with the judicial system to match their need for judicial protection, and also catalogs the small estate procedures enacted in states that have not adopted the UPC.  Despite the availability of these modern probate systems, lawyers and their clients continue to seek out non-probate alternatives.  Why is this a problem?  Because, as Professor Martin points out, probate avoidance generates unnecessary expenditures on bypass devices and encourages unscrupulous peddling by “trust mills” that prey on fear of the probate process.  In addition, the proliferation of probate avoidance devices requires co-ordination, and creates unexpected difficulties when the co-ordination is less than perfect. Continue reading "The End of Probate"

“Probabilistic Injury”: The Odds Aren’t Good

Bradford Mank, Summers v. Earth Island Institute Rejects Probabilistic Standing, But a “Realistic Threat” of Harm is a Better Standing Test, 40 Env. L. 89 (2010), available at SSRN.

The case of Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009), is notable from several administrative law perspectives, but potentially its major impact is one that many commentators have missed – its rejection of “probabilistic standing.”  In Summers, Justice Scalia, writing for the Court, rejected out of hand Justice Breyer’s suggestion that the plaintiff environmental groups had satisfied the “injury” prong of standing by showing “a realistic likelihood” of injury to one or more of their members.  Characterizing this suggestion as “a hitherto unheard-of test for organizational standing,” Justice Scalia wrote that to accept as “injury” the fact that “there is a statistical probability that some of those members are threatened with concrete injury” would “make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm.”

If Justice Scalia had not heard of probabilistic injury before, he has not been reading the numerous circuit court decisions addressing the probability of injury and when it is sufficient for standing.  But Professor Mank has, and even before Summers he authored an article, Standing and Statistical Persons: A Risk-Based Approach to Standing, 36 Ecology L.Q. 665 (2009), dealing with the subject.  In his most recent article, however, he takes it a step further, addressing Justice Scalia’s opinion for the majority in Summers and Justice Breyer’s for the dissent, relating them to some of the lower court opinions dealing with probabilistic injury, in particular two D.C. Circuit decisions, Public Citizen v. National Highway Traffic Safety Administration, 489 F.3d 1279 (2007), modified on rehearing, 513 F.3d 234 (D.C. Cir. 2008), and Natural Resources Defense Council v. EPA, 440 F.3d 476, withdrawn, 464 F.3d 1 (D.C. Cir. 2006).  In addition, Professor Mank explains how all these cases relate to the Supreme Court’s earlier decision in Friends of the Earth, Inc. v. Laidlaw Env. Services, Inc., 528 U.S. 167 (2000). Continue reading "“Probabilistic Injury”: The Odds Aren’t Good"

Recent Developments in Comparative Tax Theory

Omri Marian, The Discursive Failure in Comparative Tax Law, 58 Am. J. Comp. L. (forthcoming 2010), (available at SSRN), Carlo Garbarino, An Evolutionary Approach to Comparative Taxation: Theory, Methods and Agenda for Research, 12 Theoretical Inquiries in Law (forthcoming 2010), and Hugh Ault & Brian Arnold, Comparative Taxation, A Structural Analysis, 3d Ed. (available at Amazon.com)

Why isn’t there more work on comparative tax law, and why hasn’t a more sophisticated methodology developed to address comparative law tax issues?    A new book and two forthcoming articles deal with these questions.

The book is the third edition of Hugh Ault and Brian Arnold’s Comparative Income Taxation: A Structural Analysis, which appeared earlier this year.   One of the few comprehensive works on the subject—Victor Thuronyi’s 2003 volume also stands out in particular—the new Ault and Arnold reflects several changes, now covering nine (albeit primarily advanced) countries and including an additional section that covers individual, business, and international tax rules in topical as opposed to country-by-country fashion.  While the book remains primarily descriptive in nature, any comparativist will tell you that gathering information is half the battle, and much of what is needed, at least for the major OECD countries, is contained here. Continue reading "Recent Developments in Comparative Tax Theory"

Patent Utility Reduxit

Michael Risch, Reinventing Usefulness (forthcoming  2010 B.Y.U. L. Rev –), available at SSRN.

In academic scholarship, it sometimes happens that an entire field of inquiry becomes neglected year after year—to the point that nearly everyone believes the area incapable of yielding anything much of intellectual interest.   Such beliefs are almost always wrong, for it is the fallow fields of thought that are prime to be fruitful again.  An excellent example is patent utility doctrine, and specifically the issue whether inventions must be proven commercially useful as a prerequisite to patentability.  The conventional wisdom is that the law resolved this question against imposing such a requirement  more than a century and a half ago.  The issue is long dead; forgotten; abandoned.  Until now.

In his new article Reinventing Usefulness, Michael Risch reexamines patent utility doctrine and advances creative and insightful arguments for requiring that all inventions demonstrate “commercial utility” prior to patenting.  The highest compliment I can pay this article is not that I agree with it—I’m still somewhat doubtful—but that the article has forced me to think hard about an area I foolishly thought to be largely barren.  The article is memorable precisely because its thesis is unsettling; it demands rethinking of utility doctrine and other aspects of the patent law. Continue reading "Patent Utility Reduxit"

The Beautiful Struggle: A Prosecutor’s Redemption Story

Paul Butler’s new book Let’s Get Free is essential reading for those who care about American criminal justice, prosecutorial power, and doing justice from inside the system.  It is also a beautiful rarity for a book of big scholarly ideas: page-turning reading.  The writing hums with the rhythm, flow, and narrative of hip hop at its best—one of the inspirations for an intriguing chapter and the book’s subtitle: A Hip-Hop Theory of Justice.  The intimate portrait of the prosecutor and the criminal justice system that Paul presents is an important contribution to the literature penetrating the opacity of prosecutorial power, practices and pressures.1

It is a tribute to how successfully Paul liberates his scholarly ideas from the stilted prose that dooms legal scholarship to limited readership that one of my law students recommended this hot new book to me.  He was moved and inspired by the book enough to spread the word and seek to discuss it.  This is the power of great ideas, set in beautiful prose, made compelling through narrative.  And narrative is the thread that binds this book of many big ideas. Continue reading "The Beautiful Struggle: A Prosecutor’s Redemption Story"

I Always Feel Like Somebody’s Watching Me

M. Ryan Calo, People Can Be So Fake: A New Dimension to Privacy and Technology Scholarship, 114 Penn. St. L. Rev. (forthcoming 2010), available at SSRN.

To glimpse the future of information privacy law, you should look at the work coming out of two Stanford Law School centers, the Center for Internet and Society and the CodeX center. In the past few years, these centers have housed a steady stream of fellows and clinical professors who have written some of the most interesting, vibrant, and future-looking scholarship in this field. For example, Lauren Gelman’s article on “blurry-edged” boundaries—already lauded in these pages—is a significant contribution, one that has advanced our understanding of the complicated relationship between social networks and privacy. Another excellent example is Structural Rights in Privacy, written by Harry Surden—now my colleague at the University of Colorado—during his stint as a fellow at CodeX, about how technology sometimes protects privacy in ways we fail to appreciate until the technology changes. I write now to focus on another scholar in the Stanford centers, Ryan Calo, who has embarked on a fascinating project with an excellent article, People Can Be So Fake: A New Dimension to Privacy and Technology Scholarship, forthcoming in the Penn State Law Review.

Calo focuses on “technologies designed to emulate people,” such as robots with expressive eyes or software assistants designed to look like people. We’ve come a long way since Microsoft’s Clippy the paperclip first annoyingly noticed that it looked like I was writing a letter. Computer scientists, roboticists, and companies have poured time and creative energy into designing interfaces and devices that look and act human, and they’ve made great strides in the process. To document these advances, Calo cites with care a rich, emerging, technical literature, importing dozens of studies and papers into law, saving the rest of us a lot of heavy research lifting. Continue reading "I Always Feel Like Somebody’s Watching Me"

Rethinking “International Law”

Jack Goldsmith and Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1792 (2009).

It is a staple of the international law literature that international law is not or might not “really be law” because, among other things, it lacks what H.L.A. Hart refers to as a “rule of recognition.”  The contrast is most stark when one compares international law with domestic or municipal law.  In the case of the latter, there is widespread convergence of opinion on valid sources of law and even relative agreement about how to construe those sources.  It is the absence of such convergence that leads some (e.g., “realists” who maintain that power is the best explanation for the behavior of states) to conclude that international law is not law at all.

And what of constitutional law?  The conventional wisdom is that domestic constitutional law is not only law, it is perhaps the most important example of domestic law.  Constitutional law may not be as “solid” as municipal law, but it is certainly much more like “law” than international law could ever hope to be.  As Goldsmith and Levinson unassumingly put the matter, “[t]his Article questions whether these apparent differences between international and constitutional law really run as deep as is commonly supposed.” (1794) Continue reading "Rethinking “International Law”"

Time to Rethink Prudent Investor Laws?

Stewart E. Sterk, Rethinking Trust Law Reform: How Prudent is Modern Prudent Investor Doctrine?, 95 Cornell L. Rev. (forthcoming 2010), available at SSRN.
Jeffrey Cooper

Jeffrey Cooper

With the stock market of recent years dashing so many hopes and dreams, investors are all asking the same questions:  How could we have let this happen?  How can we be sure it won’t happen again?  Included among those asking these questions are the beneficiaries of countless trusts who have witnessed significant declines in the value of their trust portfolios.  In his article “Rethinking Trust Law Reform: How Prudent is Modern Prudent Investor Doctrine?,” Professor Stewart E. Sterk joins this search for answers, ultimately concluding that modern prudent investor laws fail to adequately protect trust beneficiaries in troubled economic times.

Professor Sterk’s article consists of three major Parts.  In Part I, Professor Sterk lays the historical framework for his analysis by summarizing the evolution of laws governing trust investment management.  In particular, he explores how two widely-accepted economic theories regarding the behavior of financial markets, modern portfolio theory (“MPT”) and the efficient capital market hypothesis (“ECMH”), came to influence trust investment law.  Sterk chronicles how both the Restatement (Third) of Trusts and the Uniform Prudent Investor Act wholeheartedly embraced MPT and ECMH in a quest to encourage the investment of trust funds in the manner these theories suggested would maximize the economic interests of trust beneficairies. Continue reading "Time to Rethink Prudent Investor Laws?"

Government Dragnets

All commentators agree that the Fourth Amendment’s second, “Warrant Clause”—providing that search and arrest warrants be based on probable cause and describe with particularity the place to be searched and person or items to be seized—was meant to do away with general warrants. The general warrant is still very much with us today, however. Without any individualized suspicion, homes and businesses are subject to health and safety inspections, school children must undergo drug testing, motorists are stopped at roadblocks and checkpoints, important documents maintained by banks, credit card companies and other entities are mined for data, pedestrians in our major cities are monitored by camera systems, and everyone’s personal effects are uniformly scanned and searched at borders, airports, and various other major travel hubs.

The Supreme Court has pretty much allowed all of this to go on without any constitutional restriction.  In the case of drug interdiction, roadblocks, and drug testing of pregnant mothers, it has declared that individualized suspicion is needed.  But otherwise the Court has either held that the Fourth Amendment does not apply because the government action is not a search (as with data mining) or concluded, in effect, that any government search and seizure program that avoids irrationality is permissible.  Many commentators have deplored this state of affairs and proposed a number of alternatives, usually either requiring some sort of individualized suspicion (which would probably put an end to all general searches and seizures) or adopting a variant of strict scrutiny analysis, which would require courts to determine whether the program is narrowly tailored to meet a compelling state need (and would involve some very difficult, and arguably improper, judicial calculations about programmatic costs and benefits). Continue reading "Government Dragnets"

New Jotwell Section: Jurisprudence

Today we inaugurate a new Jotwell section on Jurisprudence, edited by Prof. Brian Bix of the University of Minnesota School of Law and Prof. Brian Tamanaha of the Washington University School of Law. Together they have recruited a stellar and international team of Contributing Editors.

Expect other new sections in the coming weeks and months. Please get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

Another Ride on Vehicles in the Park

Frederick Schauer, A Critical Guide to Vehicles in the Park, 83 N.Y.U. L. Rev. 1109 (2008).

“No vehicles in the park”—this deceptively simple rule has commanded the attention of legal theorists ever since the mid-twentieth century tussle between jurisprudential heavyweights Lon Fuller and H.L.A. Hart.  “It is the most famous hypothetical in the common law world,” leads Frederick Schauer, in his terrific analysis of the debate.   Schauer lays out the position of each protagonist, he explains how their respective positions are linked to (and detachable from) their broader theories of law, he indicates what each got right and each got wrong, and he identifies the relevance of the debate to central issues in legal theory and judging today.

“A Critical Guide” is admirably clear, it delivers a passel of insights, it is leavened with dashes of humor, and it comes in at an efficient 35 pages.  Schauer draws out links to legal realism and the legal process school, to Hart’s later engagement with Ronald Dworkin, to debates over Riggs v. Palmer and Church of the Holy Trinity v. United States, as well as touches on other familiar veins in U.S. legal theory.  Along the way, he treats the reader to edifying discussions of contextual meaning and shared acontextual understanding; of the difference between vagueness and “open texture;” of the theoretical and the empirical aspects of the “no vehicles” debate; of the distinction and interaction between linguistic certainty and legal certainty, and much more. Continue reading "Another Ride on Vehicles in the Park"

Size Matters: Wealth Accumulation as a New Mission in Higher Education

Peter Conti-Brown, Scarcity Amidst Wealth: The Law, Finance, and Culture of Elite University Endowments in Financial Crisis.  Available at SSRN

The question of why universities seem to hoard their endowments had become a Senate-level issue prior to the Panic of 2008, and now that normalcy slowly is returning the issue promises to become a live one again.   Simply put, in the years preceding the panic, tax-exempt institutions of higher education appeared to be growing enormous endowments while spending only a tiny proportion of them on their current needs.  The issue became more sharply illustrated as, in the face of significant endowment losses during the crisis,  elite universities with the highest endowments chose to cut budgets, lay-off employees, freeze hiring and salaries, close libraries, and cancel capital projects, among other measures, rather than maintain their then-current levels of spending, at the same time remaining in possession of endowments that still counted in the billions.  Conti-Brown asks why, and gives a deeply thoughtful and creative explanation for the endowment puzzle.  His answer:  endowment building — the accumulation of wealth for its own sake — has taken its place as one of the missions of the institutions, alongside their pedagogical and scholarly pursuits.

As one might imagine, universities are highly secretive about their endowments, and Conti-Brown has done a good job of obtaining such information as he could, focusing on the universities with the five highest endowments: Harvard, Yale, Princeton, Stanford, and MIT.   Important among this is that despite the average 30% drop in endowments at these schools (an assumption Conti-Brown makes based on the data he has), endowments remained at the same levels they had attained in 2005 and 2006.  Thus the budget cuts seem all the more puzzling and the plot thickens. Continue reading "Size Matters: Wealth Accumulation as a New Mission in Higher Education"

The Corporate Pyramid Fable

Steven A. Bank & Brian R. Cheffins, The Corporate Pyramid Fable (UCLA Sch. of Law, Law-Econ. Research Paper No. 10-01; ECGI-Law Working Paper No. 146/2010, 2010), available at SSRN.

There is nothing I like more when reading scholarly work than the thoughtful interrogation of long-standing myths about a particular phenomenon.  Take, for example, the article by economists Nicola Persico, Andrew Postlewaite, and Dan Silverman, “The Effect of Adolescent Experience on Labor Market Outcomes:  The Case of Height” (http://ssrn.com/abstract=293122).  For years economists (and frankly any casual observer) noted that taller people make more money and seem to command greater power.  This was widely explained as a bias in favor of height (or as discrimination against short people).  These three economists took that hypothesis and explored whether there was a stronger determinant of success as reflected in labor market returns.  Surprise!  It turns out if you look at height of white males over time against labor market success you discover that boys who were tall in high school have stronger labor market returns.  Adult height is only relevant to the extent that it correlates with youth height.

Bank and Cheffins’ paper is of the same ilk.  They take a look at a long standing puzzle:  why does the United States lack the corporate pyramid structures common in other countries of the world?  In some countries it is common for a successful individual or wealthy family to have a small stake in the overall operations of cascading companies, but to have a sufficient stake in the chain that they control billions of dollars worth of corporate activities with only a limited personal or family investment.  These arrangements have given rise to a variety of well documented concerns, including that a small number of investors exercise enormous control at the expense of minority shareholders, that tiny elites are given disproportionate access to corporate power, and that these investors have huge sway with government. The often told example of this kind of arrangement, retold by Bank and Cheffins, is of the unmarried brothers, Oris Paxton Van Sweringen and Mantis James Van Sweringen who were able to invest less than 20 million dollars but control eight class I railroads with combined assets of over two billion dollars. Continue reading "The Corporate Pyramid Fable"

Going Rogue

Elizabeth Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 155 (2009).

Maybe it’s because I’m related to card-carrying members of the Tea Party movement, but I have a thing about government secrecy.  It makes me nervous.  In my own scholarship I have fretted a lot over state encroachments on personal privacy.  But when I really dig down deep, the truth is that I worry much less about what the government knows about me than I worry about what I do not know about it.

This probably explains my current research project, which is about (naturally) government secrecy in criminal justice.  It probably also explains my admiration for articles like Alexandra Natapoff’s Snitching:  The Institutional and Communal Consequences, 73 U. Cin. L. Rev. 645 (2004), and Jacqueline Ross’s The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany, 55 Am. J. Comp. L. 493 (2007).  Most recently, it certainly accounts for my fascination with and applause for the article I want to discuss here: Elizabeth Joh’s Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 155 (2009). Continue reading "Going Rogue"

Saving Us From Ourselves: Reforming the Fiduciary Duty of Loyalty

Melanie B. Leslie, The Wisdom of Crowds?  Groupthink and Nonprofit GovernanceCardozo Legal Studies Research Paper No. 276  (2009). Available at SSRN.
Julia Belian

Julia Belian

In the wake of disaster, we as a species invariably reach out with untold generosity, donating vast amounts of cash and supplies to assist the victims.  And, just as invariably, at least some of the charitable organizations through which most of us funnel our compassion will drop the ball through some form of mismanagement.  In the past twenty years, the relief efforts following almost every major disaster – spring flooding in the Midwest, mudslides and wildfires on the West Coast, hurricanes throughout the Gulf of Mexico, tsunamis in the South Pacific, and, most famously, Katrina – have been plagued by reports of mismanagement ranging from lack of meaningful oversight to outright embezzlement.

Which should mean that right now, as the world struggles to come to the aid of a ravaged and overwhelmed Haiti, would be a prime time to consider meaningful reform of the standards by which such charities conduct their critical business.  For several years, Prof. Melanie B. Leslie of Cardozo School of Law has offered a clarion call for reform of the rules governing fiduciary conflicts of interest, especially within the nonprofit sector.  In the wake of the catastrophic earthquake January 12, the arguments and suggestions in her article The Wisdom of Crowds? Groupthink and Nonprofit Governance deserve serious attention. Continue reading "Saving Us From Ourselves: Reforming the Fiduciary Duty of Loyalty"

The 101 Biggest Estate Planning Mistakes

Gerry Beyer

Gerry Beyer

What fun!  That was my first reaction to this new book by Herbert Nass, the famous New York attorney who has worked on the estate plans of countless celebrities.  By using the wills of the rich, famous, and infamous as examples, Nass guides readers though the most common and significant mistakes individuals and their attorneys make during the estate planning process.

In the span of eleven chapters, Nass sets out his top 101 missteps which individuals and their attorneys are prone to take when planning an estate.  A good way to get a flavor of the scope of his coverage is to peruse the titles of his chapters: Continue reading "The 101 Biggest Estate Planning Mistakes"

Intrafamily Loans and Tangible Property

Joseph M. Dodge, Revisiting Dickman: Are Loans of Tangible Property Gifts? (FSU College of Law, Public Law Research Paper No.  405,  2009), available at SSRN.
Wendy Gerzog

Wendy Gerzog

The article Revisiting Dickman: Are Loans of Tangible Property Gifts? by Joseph M. Dodge, recently posted on SSRN, exhaustively covers this central question left unanswered by the Supreme Court in its 1984 Dickman decision. Dodge describes a common scenario in wealthy families: informally, parents allow their adult child to use their vacation home rent-free for an unspecified time. The piece then delves into the query about whether or not that familiar occurrence is a taxable gift. To answer that question, the article takes the reader into a wide-ranging discussion that includes property interests, imputed income, psychic benefits, Internal Revenue Code section 7872 (dealing with gift tax and income tax consequences of below-market interest loans of money), revocable transfers, and the estate tax consequences of the retained enjoyment of property.

Dodge argues against subjecting tangible personal use property to the gift tax. After all, he suggests, when you swim in a neighbor’s pool, that neighbor has not transferred a property interest to you. The permission to use property does not create a property interest in the user because it implicitly includes the power to revoke that permission.  Dodge analyzes Dickman, criticizing the court’s minimizing the real problem of cost-free loans of personal-use tangible property when it stated that the IRS was not interested in taxing such neighborly or familial gifts. The court too easily dismisses the issue by saying that, in any event, the annual exclusion and credit exemptions would shelter those transactions from any transfer tax. He critiques the court’s overgeneralizations and explains that the gift tax is not a tax on foregone economic opportunities but a tax on wealth transfers. Moreover, he states that the annual exclusion would not be available if a transaction was characterized as forming a tenancy at will plus a reversion, because there would be no ascertainable present value of the child’s interest.   After examining the case under different transfer tax principles, Dodge concludes that Dickman was doctrinally confused and wrongly decided. Continue reading "Intrafamily Loans and Tangible Property"

Policing Beyond the Framing Era

Wesley MacNeil Oliver, The Nineteenth and Early Twentieth Century Origins of Modern Criminal Procedure: A View from the New York City Police Department (2009); Wesley MacNeil Oliver, The Neglected History of Criminal Procedure, 1850-1940, 62 RUTGERS L. REV. (forthcoming 2010); Wesley MacNeil Oliver, Magistrates’ Examinations, Police Interrogations, and Miranda-Like Warnings in the Nineteenth Century, 81 TUL. L. REV. 777 (2007); Wesley MacNeil Oliver, The Rise and Fall of Material Witness Detention in Nineteenth Century New York, 1 NYU  J.L. & LIBERTY 727 (2005).
Andrew Taslitz

Andrew Taslitz

Most judicial opinions and scholarship concerning the history of criminal procedure relevant to constitutional interpretation stress colonial practices and the Framing Era response to them. A small number of scholars have addressed aspects of nineteenth century criminal procedure relevant to one criminal procedure constitutional provision or another. But no one has written a book-length treatment of the impact of the rise of professional policing from the mid-nineteenth century through modern times on the arc of constitutional law. Nor has anyone explored the theoretical implications of such history for constitutional interpretation. No one, that is, until now.

Wesley MacNeil Oliver, a newly-minted Associate Professor at Widener University School of Law, has just recently completed his dissertation – which he plans  to publish in book form in the next few years, and portions of which are currently available in the form of published articles – filling this important gap in the literature.  Oliver focuses his attention on the rise and evolution of the New York City Police Department. His emphasis is thus on state-level developments, but he places them in the context of broader national developments. Moreover, the N.Y.P.D.’s history is likely emblematic of the growth of police departments in major cities nationwide. Continue reading "Policing Beyond the Framing Era"

Might the Motivation for Agency Guidance Be the Public’s Need for Guidance?

Connor N. Raso, Strategic or Sincere?  Analyzing Agency Use of Guidance Documents,  119 Yale L. J. 782 (2010).

Ten years ago, Todd Rakoff observed that agencies seemed to be increasing their use of “guidance documents,” in possible preference to rulemaking or adjudication, as a newly preferred method of policy implementation.  Todd D. Rakoff, The Choice Between Formal and Informal Modes of Administrative Regulation, 52 Admin. L. Rev. 159, 167 (2000).  Others – including some casebook authors I know well – have since speculated that the trend might, at least in part, be a strategic reaction to the increased transaction costs associated with issuing substantive administrative rules – for example, having to deal with the Office of Information and Regulatory Affairs in negotiating an acceptable regulatory impact analysis.  See, e.g., Jerry L. Mashaw, Richard A. Merrill and Peter M. Shane, Administrative Law – The American Public Law System:  Cases and Materials 646-647 (6th ed. 2009).

In Strategic or Sincere?, Connor Raso, who will graduate this spring with both a J.D. from Yale and a Ph.D. in political science from Stanford, has written what protocol requires me to describe as a “Note” casting doubt on this hypothesis.  The Note begins with a section recounting how guidance documents are treated under the law, especially in comparison to substantive or “legislative” rules. Raso then recounts a number of recent studies that assume “that agencies use guidance documents in place of the notice and comment process, and then [debate] reforms to reduce this behavior.”  (798). A third analytic section catalogues potential institutional differences between legislative rules and guidance documents:  guidance documents may attract less political attention (which could be especially attractive if Congress and the President are generating different political signals); they may be harder to challenge in court because of ripeness and standing problems; they are exempt from APA procedural requirements; and their issuance is likely to consume fewer resources of time, personnel, and budget.  On the other hand, guidance documents may be more difficult to enforce (although Raso seems to waiver on this point) and less durable than legislative rules. Continue reading "Might the Motivation for Agency Guidance Be the Public’s Need for Guidance?"

The Nineteenth Century Administrative State

Jerry Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 Yale L.J. 1256 (2006); Jerry Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 Yale L.J. 1636 (2007); Jerry Mashaw, Administration and “The Democracy”: Administrative Law from Jackson to Lincoln, 1829-1861, 117 Yale L.J. 1568 (2008); Jerry Mashaw, Federal Administration and Administrative Law in the Gilded Age, 1861-1901 (forthcoming in Yale L.J.) (SSRN Version).

Eminent historians, political scientists, and legal academics have long told us that the federal administrative state was almost non-existent until the twentieth century. They were wrong. In a series of four articles published in volumes 115 through 118 of the Yale Law Journal, Jerry Mashaw recounted the rich history of the federal administrative state in the nineteenth century.

The many scholars who believed that the federal administrative state did not exist in the nineteenth century were tricked by our tendency to rely primarily on judicial opinions to inform us of legal developments. There are very few court opinions involving judicial review of federal agency actions in the nineteenth century, but that lack of evidence of the administrative state was attributable to a characteristic of the administrative state at the time—federal agency actions rarely were reviewable in a federal court. The only way a citizen could obtain review of most federal agency actions in the nineteenth century was to sue the individual federal employee in a state court on the basis of some common law doctrine like trespass or conversion. The federal employee would defend his actions on the basis that he was performing duties authorized by federal law. A jury would then decide whether the employee was acting pursuant to law or had violated a common law right. Continue reading "The Nineteenth Century Administrative State"

Whose Trust is It?

John H. Langbein, Burn the Rembrandt?  Trust Law’s Limits on the Settlor’s Power to Direct Investments, 90 B.U. L. Rev. 375 (2010).
Tom Gallanis

Tom Gallanis

There is a central tension in the law of trusts between the rights of the settlor and of the beneficiaries.  On the one hand, the organizing principle of the law of donative transfers, as stated in Section 10.1 of the Restatement 3d of Property (Wills and Other Donative Transfers), is that the “donor’s intention is given effect to the maximum extent allowed by law.”  On the other hand, the Restatement 3d of Trusts emphasizes in Section 27(2) that “a private trust, its terms, and its administration must be for the benefit of its beneficiaries.”  A similar benefit-the-beneficiaries rule is codified in Section 404 of the Uniform Trust Code (UTC) and made mandatory in UTC Section 105.

This essay, Burn the Rembrandt?  Trust Law’s Limits on the Settlor’s Power to Direct Investments, by one of America’s leading scholars of trust law, Professor John Langbein of the Yale Law School, explores the limits that trust law places on the power of the settlor, as the author of the trust’s terms, to direct the trustee’s investment decisions.  The essay is a response to an earlier article in the Boston University Law Review by Professor Jeffrey Cooper, in which Professor Cooper criticized the benefit-the-beneficiaries rule, instead proposing greater deference to the intentions of the settlor, for example where the settlor “intentionally and thoughtfully impaired beneficiaries’ economic rights.” See Jeffrey A. Cooper, Empty Promises: Settlor’s Intent, the Uniform Trust Code, and the Future of Trust Investment Law, 88 B.U. L. Rev. 1165, 1166 (2008). Continue reading "Whose Trust is It?"

Politics at the Pulpit

Mayer, Lloyd H., Politics at the Pulpit: Tax Benefits, Substantial Burdens, and Institutional Free Exercise, 89 B.U. L. Rev. 1137 (2009), available at SSRN.

Although the next Presidential election is still a couple of years off, one controversy that is sure to return to center stage is the prohibition in section 501(c)(3) that  bans 501(c)(3) organizations from intervening in a political campaign for or against a candidate for public office.  The Alliance Defense Fund has set up a “pastor initiative” to create a test case regarding a religious leader’s right to endorse a candidate from the pulpit.  I, and others, have participated in a series of debates regarding this issue, and I have argued that the campaign ban is constitutional.  In preparing for one of the debates, I read Lloyd Mayer’s article, Politics and the Pulpit:  Tax Benefits, Substantial Burdens, and Institutional Free Exercise. Professor Mayer’s article puts a new twist on an old issue, and provides a pathway for the Supreme Court to follow when it confronts the issue.  I hope Mayer’s article is cited in the minority opinion, but the article is an important contribution for people thinking about campaign intervention and section 501(c)(3) organizations.

As a brief introduction, proponents of the campaign ban argue that it is constitutional for Congress to condition tax-exempt status on a set of restrictions that ensure that organizations are acting consistently with the purpose of the exemption.  In this context, Congress has determined that organizations that receive a subsidy from the government in the form of tax exemption should not be involved in endorsing candidates. (See Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983), upholding the limitation on lobbying contained in 501(c)(3)). In a sense, such actions are deemed by Congress to be not charitable.  (See Bob Jones University v. United States, 461 U.S. 574 (1983), denying tax-exempt status to Bob Jones University because it discriminated based on race and determined that such discrimination prevented an organization from being charitable).  Religious leaders have a right to endorse candidates, work for candidates, and run for office.  They simply cannot do so on behalf of 501(c)(3) organizations. Continue reading "Politics at the Pulpit"

“This Milk Doesn’t Taste Hormone-free”: Creating Trademark Liability when Companies Alter Credence Qualities

J. Shahar Dillbary, Trademarks as a Media for False Advertising, 31 Cardozo Law Review 327 (2009), available at ssrn and through Cardozo Law Review. 

What if you learned that those Niman Ranch steaks you’ve been purchasing for $40 per pound were no longer pasture-raised?  What if Aveda, without notifying you, decided to begin testing its products on animals?  Or if your Bridgestone tires were no longer union-made?  In each of these cases, it would be nearly impossible to detect the change merely by using the product.  For an increasing number and variety of products, consumers choose a particular brand or pay premium prices based on imputed qualities that they never experience.  Trademark and false advertising law exist to protect consumers from deceptive branding practices, but the situations described above are currently immune from liability.  Or at least they will be until more people read Shahar Dillbary’s new paper.

Since its origin in the tort of deceit, trademark law’s goal has been the prevention of passing-off, or as Dillbary refers to it, inter-brand fraud.  The typical case is one where the consumer, intending to purchase A’s goods is fraudulently induced to purchase B’s.  Trademark law exists to protect both producers and consumers and to minimize the substantial deadweight losses that would otherwise exist if consumers were forced to undertake extensive searches to obtain the appropriate products.  As Dillbary notes, however, trademark law is substantially less concerned with situations of intra-brand fraud where “the trademark owner uses its own mark to misrepresent its own goods.”  Dillbary, at 334.  According to Dillbary the unequal treatment of trademark misuse stems from the widely accepted premise that “the only legally relevant function of a trademark is to impart information as to the source or sponsorship of the product.” Id. at 332, quoting Smith v. Chanel, 402 F.2d 562 (9th Cir. 1968).  This premise ignores the substantial role that a mark play in providing information about the product itself, and it enables a particularly insidious class of consumer fraud. Continue reading "“This Milk Doesn’t Taste Hormone-free”: Creating Trademark Liability when Companies Alter Credence Qualities"

The CyberArt of Forgetting

Viktor Mayer-Schönberger, Delete: The Virtue of Forgetting in the Digital Age (2009).

“Since the beginning of time, for us humans, forgetting has been the norm and remembering the exception.”  (2)  Advances in information technology have been shifting this default, Viktor Mayer-Schönberger,  an Associate Professor of Public Policy and Director of the Information and Innovation Policy Research Centre at the Lee Kuan Yew School of Public Policy, National University of Singapore, argues. This shift may have grave consequences. Therefore, the default needs to be reset.  What these grave consequences are and how the reset can be managed are the core issues of his book.

At this stage it is my time for full disclosure: The author of Delete has been a long time friend. He is Austrian and I am German. We befriended at a time when the people in the field of information and law were all on a first name basis, and their numbers such that you could easily remember them without any technical support. Both our nationalities point to national memories, which, although different, keep haunting us and our countries, and Mayer-Schönberger does not leave them unmentioned. And finally, at about the time the book came out, the city archive building of my hometown Cologne, containing the city’s 2000 years of memory, collapsed into the excavation site of a subway tunnel.  All this did not make the reading of Delete the reading of just another treatise. Continue reading "The CyberArt of Forgetting"

The Intuition of Retribution

Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 Minn. L. Rev. 1829 (2007).
Orin Kerr

Orin Kerr

I am a big fan of the criminal law scholarship of Paul Robinson. This article in particular is a valuable work of scholarship that should be helpful to any professor or student of criminal law.

To understand the value of the article, consider the beginning of first-year classes in criminal law.  The standard way to teach criminal law is to begin with the two basic reasons why we punish criminal conduct: Utilitarian reasons, such as deterrence, and retributive reasons, such as to achieve “just deserts.”  Utilitarian theories are easy to explain and are intuitive to most students.  On the other hand, criminal law professors generally struggle to teach retributive theory.  The topic seems impossibly vague: Different academic theorists have different theories as to what they personally think retribution should mean, but those academic theories often seem quite apart from what most citizens actually feel.  The result is an uncomfortable gap in which professors teach retribution without offering a clear sense of exactly what retribution actually is or how retributive theories should play into arguments about criminal punishment. Continue reading "The Intuition of Retribution"

Why is Criminal Justice Only Partially Privatized?

Ric Simmons, Private Criminal Justice, 42 Wake Forest L. Rev. 911 (2007).
Ron Wright

Ron Wright

Ric Simmons has written an article that makes sense of two long-term trends in the privatizing of criminal justice.  He links a growing body of legal scholarship about private policing to an enormous academic literature on restorative justice, and reframes them both as part of a long-term trend toward co-existing public and private systems for delivery of criminal justice.

Simmons begins this enterprise by describing the enormous growth of private law enforcement in the United States over the last few decades.  It is an exceptionally timely topic.  Much of our criminal procedure framework builds on the assumption that law enforcement is a public function, performed by state actors, but that vision is increasingly removed from reality.  By some estimates, private security and investigative workers outnumber public police officers by more than a three-to-one ratio.  Simmons capably summarizes here the groundbreaking work of David Sklansky and Elizabeth Joh, who brought these developments to light for the legal academy over the last ten years.  Simmons then observes that the relative lack of legal regulations that apply to private police actors may not matter as much as we once thought.  Many users of private policing do not bother to invoke the public adjudicative system, so the admissibility of the evidence that private police collect is not relevant in many cases. Continue reading "Why is Criminal Justice Only Partially Privatized?"

A Good Time to Die: Family-Based Objections to Inheritance Taxation

Anne Alstott, Family Values, Inheritance Law, and Inheritance Taxation, 87 Tax L. Rev. (forthcoming 2009), available at SSRN.
Bridget Crawford

Bridget Crawford

Now is a good time to die.  Congress’s failure to take action on the extension of the estate tax caused it to “expire” on December 31, 2009.   This repeal is scheduled to last for only one year, and Congress likely will enact some form of estate tax before then.  So only those who die soon will be able to transmit wealth entirely tax-free.  In the meantime, questions about the economics, fairness, morality of inheritance taxation–broadly defined–will figure prominently in political and social debates.  Anne Alstott’s essay, Family Values, Inheritance Law, and Inheritance Taxation, forthcoming in the Tax Law Review, will help ground these discussions.

Alstott’s argument is that taxing inheritance can be consistent with valuing families; it all depends on what view of the “family” one takes.  Alstott begins by locating her work in the academic debate about inheritance tax (the umbrella term she uses to refer to wealth transfer taxation generally, acknowledging that there is no federal inheritance tax per se).  She launches her analysis on the springboard of Tom Nagel’s argument that “the right to use one’s resources to benefit one’s family” [1] is at odds with inheritance taxation.  Alstott evaluates this claim using three perspectives on the family – she calls them the liberal, conventional, and functional views.   She synthesizes these from a careful reading of Jens Beckert’s historical study, Inherited Wealth (2008).  Roughly characterized, the liberal view approaches the family as a private sphere within which individuals should have freedom to choose their beneficiaries.  The conventional view construes the family as a privileged unit of economic and social organization that transmits identity and values from generation to generation.  A functional view emphasizes the family’s socio-economic welfare role–i.e., providing needed financial and other assistance to its members. Continue reading "A Good Time to Die: Family-Based Objections to Inheritance Taxation"

New Jotwell Section: Trusts & Estates

Today we inaugurate a new Jotwell section on Trusts & Estates, edited by Prof. Bridget J. Crawford of Pace Law School and Prof. William LaPiana of New York Law School. Together they have recruited a great team of Contributing Editors.

This is the first section to join Jotwell since we started publishing in November, but it is only the first of many. Expect Jurisprudence and Work Law soon, with several others already planned to follow in the coming months. Please get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

Everything but the Agency

Philip J. Weiser, Institutional Design, FCC Reform, and the Hidden Side of the Administrative State, 61 Admin. L. Rev. 675 (2009), available at BePress and SSRN.

Every so often, an article captures a persistent problem in a particular field.  Phil Weiser has done just that.  “In studying the modern administrative state,” Weiser writes, “legal scholars have failed to do their part in examining the questions related to institutional competence and institutional structure that determine whether administrative regulation can be effective.” Weiser, supra, at 676. He focuses on the institutional failings at the Federal Communication Commission (FCC).  The situation at the FCC is serious, leading Larry Lessig to recommend that Congress abolish the agency. See id. at 677 (citing Lawrence Lessig, Rebooting the FCC, Newsweek.com, Dec. 23, 2008).

Weiser describes the main failing of the FCC as a tendency “toward ad hoc judgments and away from any principled framework for evaluating alternative courses of action.” See id. at 681. The agency has neither articulated general standards for key issues such as spectrum allocation nor engaged in proactive, strategic planning.  To make matters worse, the agency also lacks a capacity for independent research and analysis and relies “’almost exclusively upon information and analysis supplied by’ the parties that appear before it.” See id. at 681-82 (quoting Nicholas Johnson, Towers of Babel: The Chaos in Radio Spectrum Utilization and Allocation, 34 Law & Contemp. Probs. 505, 530 (1969)). As a result, the FCC is easily captured—not so much in the sense that the regulated interests populate its ranks or drive its decisions but in the sense that it is beholden to its own institutional limitations.  In Weiser’s words, the agency suffers from “a failure to approach issues strategically, to develop independent solutions, and anticipate issues ahead of particular crises.” See id. at 684. Weiser’s solution is not to abolish the agency but to repair its institutional processes.  He has a number of concrete suggestions, among them encouraging strategic agenda setting, better use of notice-and-comment rulemaking, upgraded data collection and dissemination, and increased public participation in decisionmaking.  Continue reading "Everything but the Agency"

Bringing Blurry Online Privacy Into Sharp Relief

Lauren Gelman, Privacy, Free Speech, and “Blurry-Edged” Social Networds, 50 B. C. Law. Rev. 1315 (November 2009).

In this article Lauren Gelman discusses the tensions between free speech and privacy concerns on what she calls social networks with “blurry edges,” where information primarily intended for an audience comprised of friends and family members is available for the whole world to access. While these networks facilitate online community building, she says, they also create “an illusion of privacy that the law fails to recognize.” People think they have privacy through obscurity online, so they do not make efforts to fence potential trespassers out of their e-spaces. And they want to be accessible to friendly visitors, so they forgo the virtual gates and vicious dogs.

Gelman illustrates the concept in meet space by analogizing to the white pages of a phone book. Though most people do not want to receive calls from strangers, they prefer to be listed because they want some people to be able to ascertain their phone numbers and call them, some of the time. Online, people post pictures and other information without password protecting it, perhaps believing that people who do not have a wholesome interest in the material will bypass or ignore it. This creates externalities:  When the openly available content references or depicts other people, those referenced folks are subject to the same level of exposure, but without having any choice in the matter. The more personal the information posted is, the more vulnerable everyone involved becomes. Continue reading "Bringing Blurry Online Privacy Into Sharp Relief"

The Mismatch Problem: Why Election Law Isn’t Always Built for the Electorate

David Schleicher, Why Is there No Partisan Competition in City Council Elections? The Role of Election Law, 13 J. L. & Pol. 419 (2007).  SSRN Version David Schleicher, What if Europe Held an Election and No One Cared? (work in progress, available here)

Two articles by David Schleicher fit nicely into the Jotwell category of “things I like (lots).”   Schleicher is an assistant professor at George Mason Law School and a rising star in the field of election law.  Both pieces explore what he calls the “mismatch” problem—what happens when we ask voters to perform a constitutional role without the tools they need to do so.  The first piece explains why local elections in the U.S. don’t do much to hold local officials accountable.  The second piece explains why the European Parliament lacks “any semblance of democratic control” despite regular elections.

How is it possible to have elections without accountability?  Schleicher isn’t making any of the by-now-familiar arguments about incumbents’ use of gerrymandering, campaign finance, and other election devices to keep their seats.  Instead, he makes a far more provocative claim:  election laws interact with the voters’ own shortcomings to produce elections that are, in Schleicher’s view, meaningless. Continue reading "The Mismatch Problem: Why Election Law Isn’t Always Built for the Electorate"

When Criminal and Immigration Law Collide

Nancy Morawetz, Rethinking Drug Inadmissibility, 50 Wm & Mary L. Rev. 163 (2008).
Jennifer Chacon

Jennifer Chacon

One of the most interesting (and frequently distressing) aspects of teaching and writing about immigration law is the opportunity it affords for studying the interplay between immigration regulations and the criminal law. A number of scholars, including contributing editor Jack Chin, have turned their attention to this interplay before. More recently, in Rethinking Drug Inadmissibility, Nancy Morawetz explores how changes to drug laws and to the inadmissibility standards in the federal immigration law have generated an inflexible, zero-tolerance immigration policy on minor drug use that is in dire need of reexamination.

Because her article highlights the interaction between the criminal law and the immigration regime, it is essential reading for anyone interested in criminal justice. It is also an interesting read for anyone interested in how a few small and relatively thoughtless changes to a complex statutory scheme can have tremendously harsh practical effects. Finally, it is a critical read for everyone who hopes to have a better understanding of upcoming legislative attempts to enact some form of comprehensive immigration reform. As Morawetz urgently notes, “[p]roposals for comprehensive immigration reform in 2007 all included, as a minimum requirement, that the individual be ‘admissible.’” Id. at 182. Thus, absent legislative attention, the sweeping drug inadmissibility rules that Morawetz discusses in this article will likely bar a number of noncitizens with very old and very minor past drug use from normalizing their immigration status, even if the equities of their individual case should dictate a different result. Continue reading "When Criminal and Immigration Law Collide"

The Promise–and Limits–of Economics in Law

Alessandro Turina & Nicolo Zingales, Economic Analysis and Evaluation of “Fair Prices”: Can Antitrust and International Taxation Learn from Each Other? (Comp. Research in Law & Political Economy, Research Paper No.  51/2009, Vol. 5, No. 10, 2009), available at SSRN.

My teaching and research generally focuses on taxation, especially international tax.  However, I have always had an outsider’s fascination with antitrust law and policy. So when I saw a recent article entitled: Economic Analysis and Evaluation of ‘Fair Prices’:  Can Antitrust and International Taxation Learn from Each Other? I was intrigued and couldn’t resist.  The article, by Alessandro Turina and Nicolo Zingales explores the economic analysis of pricing and comparability in the transfer pricing regime of international tax and in the competition (antitrust) law of excessive and predatory pricing.  Their perspective is global as they draw upon U.S. law, E.U. law, OECD practice, and the distinctive outlook of various European countries.

The authors are restrained in their claims and comparison–they acknowledge the differences in purpose and structure between transfer pricing and antitrust laws.  But compelling parallels exist that command our attention.  Both regimes rely heavily on price-based analysis in which the underlying methodologies struggle to determine “comparability.”  Moreover, both strive to find the appropriate balance among legal certainty, administrability, and burden of proof as between business and government.  The article provides a baseline introduction to transfer pricing and competition law, thereby allowing the generally informed reader the ability to understand the place of price analysis in each regime and the challenge of determining comparability. Continue reading "The Promise–and Limits–of Economics in Law"

Unknown Unknowns: Uncertainty, Contracts, and Crisis

Eric L. Talley, On Uncertainty, Ambiguity, and Contractual Conditions, 34 Del. J. Corp. L. 755 (2009), available at SSRN.

It may be characteristic of the human condition generally, as much as complex transactions particularly, that we don’t sweat the details.

It should come as little surprise, then, that even parties to significant commercial contracts, drafted by able counsel, are often caught on the shoals of boilerplate terms that received something less than their full attention at the time of drafting.  In an area of interest to me, for example, sovereign debt contracts drafted over the last century routinely included so-called pari passu clauses–that is, until Peru’s otherwise unremarkable debt restructuring in 1997 was stymied by a New York-based vulture fund that sought full payment on its bonds, based on that theretofore mysterious provision. Continue reading "Unknown Unknowns: Uncertainty, Contracts, and Crisis"

Can Legal Education Be Globalized?

Harry W. Arthurs, Law and Learning in an Era of Globalization, 10 German Law Journal 629, available at SSRN.

Law is parochial yet it plays a considerable role in globalization. With few exceptions legal education has continued listing towards the local away from the global. Harry Arthurs, along with Carole Silver and Margaret Thornton, is one of the few scholars to investigate globalization and legal education. Arthurs has spent many years thinking about legal education as befits one who has been both Dean of Osgoode Hall Law School and President of York University in Canada and written one of the major reports on legal education. (See Julian Webb’s reflections on the 1983 “Arthurs’ Report”.)

The starting point is that political economy has profound influences on the shaping of legal education via the research agendas of legal academics, types of jobs available for graduates, regulatory structures created by government, licensing of law schools, etc. As economies and legal markets adapt to globalization so does the knowledge it is perceived to need. Law schools like to promote themselves as global either in their names—Jindal Global Law School—or in their courses and faculty. Continue reading "Can Legal Education Be Globalized?"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Samuel Estreicher
Dwight D. Opperman Professor of Law; Co-Director, Dwight D. Opperman Institute of Judicial Administration; Director, Center for Labor and Employment Law, New York University School of Law Continue reading "Meet the Editors"

Call for Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call for Papers"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Bridget J. Crawford
Pace Law School Continue reading "Meet the Editors"

Call for Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call for Papers"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Brian Bix
Frederick W. Thomas Professor of Law and Philosophy,
University of Minnesota Continue reading "Meet the Editors"