Yearly Archives: 2010
Apr 12, 2010 Brian TamanahaJurisprudence
“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"
Apr 5, 2010 Lawrence MitchellCorporate Law
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"
Apr 4, 2010 Kimberley BrooksTax Law
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"
Apr 1, 2010 Erin MurphyCriminal Law
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"
Mar 30, 2010 Julia BelianTrusts & Estates
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"
Mar 25, 2010 Gerry BeyerTrusts & Estates
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"
Mar 25, 2010 Wendy GerzogTrusts & Estates
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
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"
Mar 25, 2010 Andrew TaslitzCriminal Law
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
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"
Mar 22, 2010 Peter ShaneAdministrative Law
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?"
Mar 17, 2010 Richard PierceAdministrative Law
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"
