Monthly Archives: August 2010

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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"

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