Yearly Archives: 2010

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"


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"

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