Yearly Archives: 2010
Sep 23, 2010 Richard PildesConstitutional Law
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?"
Sep 20, 2010 Charles A. SullivanWork Law
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"
Sep 17, 2010 George MundstockTax Law
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!"
Sep 15, 2010 Dan MarkelCriminal Law
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"
Sep 13, 2010 Mitchell GansTrusts & Estates
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"
Sep 9, 2010 Mortimer SellersJurisprudence
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"
Sep 7, 2010 Anna GelpernCorporate Law
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"
Aug 23, 2010 JotwellJotwell
Jotwell is taking a short summer break.
Posting will resume on Tuesday, September 7.
Thank you for reading, and for your support.
Aug 19, 2010 Paul HorwitzConstitutional Law
Barry Friedman,
The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona),
Georgetown Law Journal (forthcoming 2010), available at
SSRN.
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"
Aug 16, 2010 Kathryn WattsAdministrative Law
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"
