Yearly Archives: 2012

Is Arbitration Lawless?

W. Mark C. Weidemaier, Judging Lite: How Arbitrators Use and Create Precedent, 90 N. C. L. Rev. 1091 (2012), available at SSRN.

Ever since the Supreme Court, in Gilmer v. Interstate Johnson/Lane Corp., 500 U.S. 20 (1991), and Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), gave employers the green light to require their employees as a condition of employment to waive their right to sue for violations of employment statutes and to mandate arbitration of any claims that may arise, debate has flared over whether such employer-imposed arbitration mandates should be prohibited, allowed or regulated.  The debate intensified after the Supreme Court’s decision in 14 Penn Plaza, LLC v. Pyett, 556 U.S. 247 (2009), held that unions may waive employees’ rights to sue and require that they pursue their statutory claims through the collective bargaining agreement’s grievance and arbitration procedure.  The criticisms include the concern that widespread arbitration mandates will lead to a privatization of public law, with arbitrators that are not bound by public law authorities producing awards of no precedential value.

W. Mark C. Weidemaier’s article, Judging Lite: How Arbitrators Use and Create Precedent, provides empirical insight into the concerns regarding the privatization of public law.  Weidemaier worked from a database of 206 class action arbitrations, every class action award available through the American Arbitration Association (AAA) between 2003-2009; 203 randomly selected securities arbitration awards issued between 1995-2009 available through FINRA and its predecessors; 231 AAA employment arbitration awards randomly selected between 1999-2008, available on Lexis; and 208 labor arbitration awards rendered between 1980-2009, randomly selected from among awards published in the BNA Labor Arbitration Reports.  He analyzed these awards to gauge the extent to which arbitrators cited and engaged with precedent. Continue reading "Is Arbitration Lawless?"

An Evolving Administrative Law of Targeted Warfare (and the Power of Londoner/BiMetallic)

Richard H. Pildes & Samuel Issacharoff, Targeted Warfare: Individuating Enemy Responsibility, New York University School of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 12-40, available at SSRN

President Obama is a Nobel Peace Prize winner. He also orders missile strikes from drones against targeted individuals in Pakistan, Yemen, and Somalia. According to some vocal critics, such extra-judicial killing makes President Obama a murderer.

This conclusion rests in large part on the premise that the United States is not, properly speaking, in an armed conflict with al Qaeda, the Taliban, and associated forces. As such, the laws and norms of international human rights law (IHRL) and civil law enforcement should apply. Absent exigent circumstances, this legal regime expects judicial authorization of the use of lethal force.  President Obama is not a judge, so, when he authorizes a killing, he commits murder. The picture looks different if we concede that the laws of armed conflict (LOAC) apply to the drone strikes. This legal regime requires an attacker to take feasible precautions to ensure that a target is legitimate but does not require judicial authorization for attacks. Continue reading "An Evolving Administrative Law of Targeted Warfare (and the Power of Londoner/BiMetallic)"

If Code Is Law, Then Coders Are Lawyers

E. Gabriella Coleman, Coding Freedom: The Ethics and Aesthetics of Hacking (Princeton University Press, 2012).

Legal academics who write about norms risk becoming armchair anthropologists.  But the armchair is precisely the place anthropologists avoid; good ethnography cannot be done alone.  As one of my college professors said, “The specific antidote to bullshit is field work.”

E. Gabriella Coleman has spent much of her career doing field work with a computer.  Her first monograph, Coding Freedom: The Ethics and Aesthetics of Hacking, is based on an extended study of free software programmers.  She lurked on their email lists, hung out in their IRC chat rooms, went to their conferences (she even helped organize one herself), and spent countless hours simply talking with them about their work.  The result is a fascinating study of a community substantially defined by its tense engagement with law. (More recently, she has been closely observing the anarchic carnival-esque collective paradoxically known as Anonymous, with equally fascinating results. Continue reading "If Code Is Law, Then Coders Are Lawyers"

An Unexpected Remedy: Eminent Domain as a Potential Solution to the Mortgage Crisis

Robert Hockett, It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery, 18 Stan. J. L. Bus. & Fin. (forthcoming 2012) available at SSRN.

It is quite rare to come across a law review article that offers not only a theoretical diagnosis of a major socio-economic problem but also a plan for solving that problem in practice.  Putting forward a real, well-reasoned, and detailed policy proposal is always an act of scholarly courage, which inevitably exposes the author to all kinds of criticism.  This is especially true where the proposal targets a complex issue in which stakes are high, arguments are heavily ideology-driven, and powerful special interests dominate the agenda. Robert Hockett’s recent essay takes on precisely such a controversial issue: the nation’s continuing problem with underwater mortgages.  Since it was posted on SSRN several months ago, this essay has been making serious waves in policy-making circles (and earning its author no love from Wall Street).

Hockett starts with an incisive diagnosis of the root causes and structural dynamics of the mortgage crisis plaguing the nation since 2007. Five years after the bursting of the latest real estate bubble, mortgage debt overhang continues to be one of the primary factors impeding broad economic recovery in the U.S. and, consequently, globally. As Hockett argues, underwater mortgages – or loans on which the homeowner owes more than the current market value of the house – function as the principal drag on the U.S. housing market and the entire economy. Homeowners whose mortgages are underwater default at accelerating rates, leading to mass foreclosure, property degradation, and consequent asset devaluation. Moreover, such homeowners also don’t spend their money on purchases of goods, which depresses the consumer demand that is so vital to a robust economic recovery. According to Hockett, as of the beginning of this year, nearly a quarter of all mortgages in the U.S. were underwater, with an even higher concentration of underwater loans in certain especially hard-hit counties and cities. In effect, these are the loans that, while not technically in default, teeter on the edge of the abyss – and the more of them fall, the wider that abyss gets. Hockett argues that the only practical long-term solution to this problem is to write down the principal on underwater mortgages to post-bust market value levels.  That would effectively force the necessary adjustment in asset values and erase the crippling legacy of the pre-2007 real estate bubble. Continue reading "An Unexpected Remedy: Eminent Domain as a Potential Solution to the Mortgage Crisis"

Perry on Powers

Stephen R. Perry, Political Authority and Political Obligation in 2 Oxford Studies In the Philosophy of Law (Leslie Green & Brian Leiter eds., forthcoming 2012) (Univ. of Pennsylvania School of Law, Public Law Reseach Paper No. 12-37, forthcoming) available at SSRN.

A right to rule is the mark of a legitimate state or, put differently, of legitimate political authority. The correlate of this right to rule is a general duty, borne by all within a relevant territory, to obey the law laid down by the state – all of the laws, whatever their content. The right to rule excludes any right on the part of citizens to “pick and choose” which among the laws that apply to them to obey. The duty is a defeasible one, which must yield in case the duty-bearer is so circumstanced that a great evil could be avoided only by disobeying the law’s command. But, extraordinary cases aside, the general duty prevails. Such is the traditional view that this paper wants to reorient.

One problem with the traditional view is that it encourages the assumption that there is an acid test of state legitimacy: is there or is there not a general duty to obey? The legitimacy of political authority is thus tied to the existence of a general duty that there is good reason to doubt. The general duty dignifies silly regulations and fussy requirements that it seems morally innocent to ignore. Moreover, each of the theories that have traditionally been marshaled to justify such a general duty of obedience – gratitude, consent, tacit consent, hypothetical consent, fair play, necessity, expertise, association – come up short. On the traditional view, legitimacy can be established by establishing the general duty, and it can be rejected if the general duty lacks a persuasive ground. Continue reading "Perry on Powers"

Dignity Is Coming

Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. Penn. L. Rev. 169 (2011), available at SSRN.

Today American law, especially Eighth Amendment law, seems to be in the middle of a dignity tsunami. The United States is not alone in this regard, or even in the lead.  Indeed dignity has been an increasingly prominent value in modern legal systems internationally since the middle of the 20th century, marked in the prominence given that term in such foundational documents of the contemporary age as the Universal Declaration of Human Rights, in the reconstructed legal systems of post-war Europe (particularly Germany), and in regional human rights treaties like the European Convention on Human Rights and the more recent European Union Charter of Rights.  A stronger version of dignity seems increasingly central to reforming America’s distended and degrading penal state.  Legal historians have suggested that American history — particularly, the absence of a prolonged political struggle with the aristocracy and the extended experience with slavery — rendered dignity a less powerful norm, which may explain the relative weak influence of dignity before now. Yet its increasing salience in the Roberts Court suggests that American dignity jurisprudence may be about to spring forward.

Professor Leslie Henry’s 2011 article, The Jurisprudence of Dignity, is a must-read for anyone interested in taming our penal state.  Henry provides a comprehensive analysis of the US Supreme Court’s treatment of the term from the founding to the present.  Henry borrows from the language philosopher Ludwig Wittgenstein the concept of a “family resemblance” and suggests that dignity as a legal term is anchored in five core meanings that continue to have relevance in contemporary law and which share overlapping features (but not a single set of factors describing all of them). The five clusters are: “institutional status as dignity,” “equality as dignity,” “liberty as dignity,” “personal integrity as dignity,” and “collective virtue as dignity.” These clusters suggest there can be both considerable reach but also precision and limits to using dignity to shape constitutional doctrine. Continue reading "Dignity Is Coming"

Beyond Confusion?

Trademark law is in the midst of an identity crisis.  The prevailing economic account of the law has come under sustained attack by scholars, who have both challenged its descriptive accuracy and blamed it for many of the expansions of trademark rights in recent decades.  The likelihood of confusion test – long the nucleus of infringement analysis – has been roundly condemned as indeterminate, incoherent, and normatively empty.  No one seems to agree about why we have trademark law and how best to implement it.  Scholars have cast about for explanations of how we got here and ideas of how to get out of this mess.

In this article, Bob Bone tries his hand at both diagnosis and cure.  His focus is the much-maligned likelihood of confusion standard.  The article (1) explains how we ended up with such a curious test for infringement, (2) critiques the standard, finding it internally inconsistent, normatively deficient, and dangerous, and (3) proposes an alternative that Bone views as more consistent with trademark law’s goals.  To do all of this, of course, Bone must endorse some version of those goals.  It all adds up to an ambitious undertaking, to put it mildly.  And while the article inevitably falls short of fulfilling all of these ambitions, it offers some wonderful insights and enriches the conversation about the values that shape our trademark laws. Continue reading "Beyond Confusion?"

A Preference for Strict Liability?

Joseph Sanders, Matthew B. Kugler, John M. Darley and Lawrence M. Solan, Torts as (Only) Wrongs? An Empirical Perspective (Brooklyn Law School, Legal Studies Paper No 302, 2012) available at SSRN.

A long-enduring question in tort scholarship concerns the purpose of tort law.  One camp, anchored by the powerful scholarship of John Goldberg and Ben Zipursky, argues that tort is a law of fault and wrongs, and strict liability is sort of that weird cousin no one likes to talk about much. 1

In a compelling new sociological study, however, Joseph Sanders tests the idea of tort as wrongs (and only wrongs), and adds to the scholarly debate about tort’s rationales.  Sanders persuasively argues that—far from being “at the margin of tort law” 2 —from the public’s perspective, strict liability reigns supreme.  In four discrete studies, Sanders assessed whether the public believes fault or wrongdoing is a requirement for tort liability.  His thoughtful article presents some surprising findings that should have those of us in the academy taking another look at the purpose of tort law. Continue reading "A Preference for Strict Liability?"

New Jotwell Section: Health Law

Today we inaugurate a new Jotwell section on Health Law, edited by Associate Dean Kathleen Boozang of Seton Hall Law and Professor Elizabeth Weeks Leonard of The University of Georgia School of Law. Together they have recruited a stellar team of Contributing Editors.

The first posting in the Health Law section is Can the Power of the FDA Be Reprised? by Kathleen Boozang.

Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

Can the Power of the FDA Be Reprised?

Daniel Carpenter, Reputation and Power, Princeton University Press, 2010.

Harvard Professor Daniel Carpenter’s Reputation and Power epitomizes the best of academic scholarship.  While this review focuses on its substantive contributions to the health or life sciences professor, the theme of the book is actually much more significant – whether and how government bureaucracy can effectively contribute to the common good – which is the take reviewed by others.  For those who are not intimately familiar with the Food and Drug Administration and pharmaceutical regulation, reading Carpenter’s book significantly resolves this knowledge gap.  While I can’t disagree with David Zaring‘s observation that the book is “methodologically eclectic,” it is nonetheless an invaluable resource for students of drug regulation as well as the administrative state.

Carpenter’s opus provides a comprehensive history of each piece of legislation that contributed to the agency’s creation, describes how the responses to a few major drug safety crises, or what Carpenter calls “policy tragedies,” contributed both to the passage of key legislation and the FDA’s reputation, and posits that the agency’s reputation with its multiple constituencies is the key to its vast power. Ultimately, Carpenter is interested in how a government agency in a country that is anti-big government can be so trusted and hold such power over a multi-national industry. In concluding that the agency’s power derives from its reputation, Carpenter explores the relationship between the institution and those who populate it, paying tribute to the many FDA officials whose own ethical and scientific integrity created, maintained and were inextricably linked with the ethos for which the FDA is so respected.  According to Carpenter, Dr. Frances Oldham Kelsey of thalidomide fame was not unique in her commitment to the public’s interest, scientific rigor and tenacity; those characteristics were embedded in the agency and, by virtue of its power, necessarily transformed the pharmaceutical industry from a not-always trustworthy and sometimes sloppy enterprise into one that adheres to generally accepted scientific methods. Continue reading "Can the Power of the FDA Be Reprised?"

When “Best Interests” Cannot Guide

I. Glenn Cohen, Regulating Reproduction:  The Problem with Best Interests, 96 Minn. L. Rev. 423 (2011), available at SSRN.

Whenever they can, advocates and politicians will re-characterize contentious debates in terms of the effects on children, even when the real concern is elsewhere.  The most prominent current example may be the debates on same-sex marriage, where those opposed to recognizing such unions refer regularly to alleged bad effects on children, even though those alleged effects are indirect and (at best) highly speculative.  However, talking about children avoids the less publicly acceptable view that likely motivates a large portion (though far from all) of the opposition to recognizing such unions:  a view that the homosexual lifestyle should be criticized rather than supported.

In Family Law doctrine, one can also find this sort of misuse of “best interests of the child”:  it is in a sense changing the topic, and calling one thing by a more favorable name.  Thus, there are principles for custody decision-making that purport to be (or be based on) the “best interests of the child,” but in fact reflect parental rights (e.g., the strong presumption for visitation by a non-custodial parent, even where there is strong evidence that this visitation is causing harm to the child) or other important social policies (e.g., refusing to base a custody decision on how a child might be harmed by the racist views of other people).

In Regulating Reproduction, I. Glenn Cohen similarly rebuts the use of “best interests” in one area of Family Law – the regulation of reproduction – and he does this with an added twist.  When one properly speaks of “best interests of a child,” the structure of the analysis is Option 1 as against Option 2 for the same child:  custody with mom as against custody with dad; adoptive placement with Family 1 versus placement with Family 2, or perhaps waiting for a better placement option to become available; having the medical treatment versus not having the medical treatment; and so on.  The decision-maker is to imagine the hypothetical future worlds for the child under the alternative choices and to evaluate which future is likely to be better.   However, when “best interests” is applied to the regulation of reproduction, there are no comparable comparisons; “best interests” analysis turns out to be, more often than not, both useless and incoherent. Continue reading "When “Best Interests” Cannot Guide"

Good Lawyers, Gone Good?

Why Good Lawyers Matter (David L. Blaikie, Honourable Thomas Cromwell and Darrel Pink, eds., 2012).

A bad news lawyer story is nothing new. As Deborah Rhode keenly observed over ten years ago: if one listens to the critics, it is easy to get the impression that “lawyers belong to a profession permanently in decline.”1 Current Canadian headlines only affirm Rhode’s observation. On a near-daily basis, we are gloomily advised of a spate of lawyerly crises. Ongoing problems with access to justice, lawyer incivility, lack of diversity and, most recently, shortages in articling (mandatory apprenticeship) positions, all loom large. Reading the newspaper can be demoralizing to newcomers and seasoned practitioners alike.

The recently published collection of essays in Why Good Lawyers Matter provides a timely counterweight to some of this doom and gloom. To be sure, there are real, pressing problems facing the Canadian legal profession. Thankfully, Why Good Lawyers Matter does not ignore this reality. Rather than “offer an apology” for the legal profession, the central idea behind Why Good Lawyers Matter is “to provide a well-informed and accessible reflection on what lawyers should do and why.” The result is a colorful array of thoughtful ruminations on the topic of lawyering. Continue reading "Good Lawyers, Gone Good?"

Race, Gender, and, Feminist Legal Advocacy during the Long Civil Rights Movement

Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution, (Harvard University Press, 2011).

Scholars have understood well that second wave feminism has deep roots in the Civil Rights Movement. Only in recent years, however, have historians explored the full extent of the material and ideological connections between these two movements.  Reasoning from Race brings this agenda to the field of legal history.  It examines what it meant for feminist legal advocates to use race analogies, how this changed over time, and how ultimately civil rights lawyers then attempted to reason from sex. In doing so, Mayeri seeks to demonstrate that the Civil Rights Movement and the Women’s Rights Movement cannot be understood in isolation from each other. Rather the movements were in dialogue with one another, taking the lead from and piggybacking on each other at different times.

Reasoning from Race makes three overlapping central arguments. The first is that women legal advocates used the tools, legal strategies, arguments, and precedent that African-American civil rights lawyers first developed. The second is that some of the leading architects and plaintiffs in sex discrimination cases were African-American women, and the third is that race and sex are intertwined categories.  Mayeri also intervenes in the periodization of the Civil Rights Movement, arguing that the Women’s Movement must be considered part of the larger Civil Rights Movement. Thus the Civil Rights Movement began in the 1950s and continued into the 1980s. Yet the height of the Women’s Movement also corresponded to the beginning of the backlash against the Civil Rights Movement.  This would have important implications in regard to legal strategies. Continue reading "Race, Gender, and, Feminist Legal Advocacy during the Long Civil Rights Movement"

Costly Mistake: Failing to Read This Article

Mary Louise Fellows & Lily Kahng, Costly Mistakes:  Undertaxed Business Owners and Overtaxed Workers, 81 Geo. Wash. L. Rev. (forthcoming 2013), available at SSRN.

If you want to impose a tax on income, you need to delineate the contours of the concept of income.  Importantly, you need to mark the line between income-producing activities and non-income-producing (or personal) ones.  When an individual or a business engages in costly activities that produce taxable income, the cost of those activities should be deductible.  When that individual or business engages in costly activities that do not produce taxable income, the cost should not be deductible for tax purposes. Sounds simple.

Some legal concepts (like the distinction between business and personal expenses) are misleadingly simple to articulate and are confounding in their application, while some expenses cause tax scholars and policy-makers relatively little anxiety.  As Fellows and Kahng illustrate, if I pay to go on a vacation, drink a fine bottle of wine, or fall asleep on a high-end mattress, no one would suggest that my expenses should be tax deductible.  They are clearly personal. Continue reading "Costly Mistake: Failing to Read This Article"

Public-Sector Unions, Public Employees: May You Live in Interesting Times

Joseph E. Slater, Public Sector Labor Law in the Age of Obama, 87 Ind. L. J. 189 (2012)

In 1959, Wisconsin became the first state to grant collective-bargaining rights to its public workers. The next half-century witnessed the rise of public-sector unions. As union density declined in the private sector, it increased in the public sector such that, by 2010, 7.6 million public-sector employees belonged to a union as compared with 7.1 million private-sector union workers. Many celebrated the public-sector union as the big success story. The fortune of public-sector unions and their members seemed, however, to turn on a dime with the 2010 mid-term elections. The past two years have witnessed some of the most pernicious attacks on public employees and their unions in the past half-century. Too contrived to be ironic, among the first and most virulent of these attacks began in Wisconsin.

Here’s where Professor Joseph Slater’s latest article, Public Sector Labor Law in the Age of Obama, begins. Professor Slater tackles four big issues: (1) recent political attacks resulting in legislative changes in the context of the current economic crisis and debate over public employee pensions; (2) bargaining and legal issues created by the current economic crisis; (3) the debate over whether and to what extent certain categories of employees (specifically Transportation Security Administration employees, police, and firefighters) should have collective-bargaining rights; and (4) the Missouri state constitutional requirement that employees have a right to bargain collectively. Continue reading "Public-Sector Unions, Public Employees: May You Live in Interesting Times"

Why Judges Leave the Bench

Stephen Burbank, S. Jay Plager, & Greg Ablavsky, Leaving the Bench, 161 U. Pa. L. Rev. (forthcoming 2012).

Law review articles have both texts and subtexts, messages that come through loud and clear and more subtle hints and suggestions that lurk in the article’s structure or methodology or footnotes.  A recent paper by Stephen Burbank, S. Jay Plager, and Greg Ablavsky nicely illustrates the idea.  In Leaving the Bench, the three co-authors offer a careful assessment of the many factors that shape the decisions of federal judges to step down from their jobs as active members of the Article III judiciary.  In the text of the piece, the authors explore the consequences of various forms of judicial departure and make a persuasive case that the institutional judiciary depends heavily on the contributions of senior status judges.  In the subtext, the authors provide a subtle reminder that judicial behavior, like all human behavior, resists simplistic modeling and one-dimensional explanation.  The authors put the proposition this way:  sometimes the scholar must attend to the “messiness of lived experience” rather than the tidiness of an unduly parsimonious model.

Models have taught us a great deal about the way political scientists and economists think about the way judges decide cases.  Political scientists prize the large N study, with lots of data points to smooth out the rough edges of statistical inference.  Economists prize presumptions about self-interested behavior.  Voting by Supreme Court Justices and federal appellate court judges has attracted the eye of such scholars:  it occurs with numbing frequency, enabling the statistically-minded to assess the ideology of a judge or Justice by reference to the way she votes.  Datasets vary in usefulness; some sort cases by the presumed valence of the outcome (left or right) and then assess votes against the backdrop of those assumptions.  Others use the votes themselves as a measure of voting behavior.  For many, votes either reveal or confirm that ideology plays a role in judging, although the more sophisticated studies suggest that panel make-up and–wait for it–doctrine can also influence the exercise of the judicial franchise. Continue reading "Why Judges Leave the Bench"

Bureaucratic Nirvana

Norton E. Long, Bureaucracy and Constitutionalism, 46 Am. Pol. Sci. Rev. 808 (1952).

Towards the beginning of his book Law and Disagreement, Jeremy Waldron says that he will offer an airbrushed view of legislatures and their capacities, as a deliberate counterpoint to the romantic view of courts so prevalent in the older literature on legal and constitutional theory. Others have offered optimistic accounts of the Presidency. But has anyone done the same for the federal line agencies and civil service — the federal bureaucracy? Will no one give us a vision of bureaucratic nirvana?

An unpromising assignment, to be sure. But it turns out that someone has taken it on, and done it superbly. In 1952 a public administration scholar, Norton E. Long, wrote an article on “Bureaucracy and Constitutionalism” in the APSR. The article offers nothing less than a vision of an American public law order guided, shaped and perfected by a quasi-independent administrative bureaucracy. Long’s article has been cited a couple of hundred times in the public administration literature, but — by my highly unscientific count — only a handful of times in the legal literature. As far as administrative law and the theory of the administrative state go, Long’s article is a neglected classic, although Long’s ideas made their way to the legal literature indirectly through the work of other public administration scholars heavily influenced by Long, such as John A. Rohr (in his 1986 book To Run a Constitution). Continue reading "Bureaucratic Nirvana"

Bureaucratic Nirvana

Norton E. Long, Bureaucracy and Constitutionalism, 46 Am. Pol. Sci. Rev. 808 (1952).

Towards the beginning of his book Law and Disagreement, Jeremy Waldron says that he will offer an airbrushed view of legislatures and their capacities, as a deliberate counterpoint to the romantic view of courts so prevalent in the older literature on legal and constitutional theory. Others have offered optimistic accounts of the Presidency. But has anyone done the same for the federal line agencies and civil service — the federal bureaucracy? Will no one give us a vision of bureaucratic nirvana?

An unpromising assignment, to be sure. But it turns out that someone has taken it on, and done it superbly. In 1952 a public administration scholar, Norton E. Long, wrote an article on “Bureaucracy and Constitutionalism” in the APSR. The article offers nothing less than a vision of an American public law order guided, shaped and perfected by a quasi-independent administrative bureaucracy. Long’s article has been cited a couple of hundred times in the public administration literature, but — by my highly unscientific count — only a handful of times in the legal literature. As far as administrative law and the theory of the administrative state go, Long’s article is a neglected classic, although Long’s ideas made their way to the legal literature indirectly through the work of other public administration scholars heavily influenced by Long, such as John A. Rohr (in his 1986 book To Run a Constitution). Continue reading "Bureaucratic Nirvana"

Reclaiming Fuller

Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Oxford, Hart Publications, 2012).

“There are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy. It is the object of this book to identify those goods and those requirements of practical reasonableness, and thus to show how and on what conditions such institutions are justified and the ways in which they can be (and often are) defective.” So wrote John Finnis at the outset of Natural Law and Natural Rights. We often think of Finnis as being distinctive among legal philosophers in the modern era in wishing to place this question at the very centre of jurisprudential inquiry. It is not an approach to the subject that we immediately connect, in our reflections, with the legal philosophy of that other prominent opponent of legal positivist understandings of the legal order, Lon Fuller. But as Kristen Rundle’s excellent book Forms Liberate reminds us, Fuller was unwavering in his insistence that there is something distinctive and important about legal forms, that there are aspects of the human condition, of incalculable importance to us, that can be “secured only through the institutions of human law.” At the same time, Fuller also connected this distinctiveness of form with the issue of practical deliberations, of the manifestation and respect of human agency.

The main purpose of Forms Liberate is to “reclaim” Fuller’s jurisprudential concerns from the periphery of present-day philosophical debates, and to return them to the centre of our inquiries so that they might interrogate the assumptions, both of method and of substance, that continue to structure the domain of inquiry. The title of the book comes from a working note of Fuller’s, written during the preparation of his “Reply to Critics,” in which all except those two words are scored out: “forms liberate.” Drawing heavily upon Fuller’s private papers, the book attempts to explain the significance of that image for Fuller’s project, to situate it in the context of Fuller’s thinking as a whole. Rundle suggests that Fuller never managed successfully to articulate his agenda within the much narrower context that Hart forced upon their famous exchanges, which often left Fuller bewildered: in particular, “Fuller losing himself and some of his best ideas to the challenge of understanding why Hart and others had dismissed him so harshly…” (P. 5.) Continue reading "Reclaiming Fuller"

Costing Financial Regulation

Bruce R. Kraus & Connor Raso, Rational Boundaries for SEC Cost-Benefit Analysis, 30 Yale J. on Reg. (forthcoming 2012), available at SSRN.

Debates about the costs and benefits of regulation, and about particular rules, are a very visible feature of lobbying about proposed financial regulation and of challenges to final rules. Industry opposition to the Dodd-Frank Act has focused on arguments about the costs of regulations envisaged by the Act. For example, in the summer of 2012 the US Chamber of Commerce Center for Capital Markets Competitiveness published a report by Anjan Thakor on the Economic Consequences of the Volcker Rule which argued that the rule would adversely affect bank customers as well as banks. The report argued that reductions in the risk of banking and of costs to taxpayers could be achieved “with greater efficiency by making judicious use of capital and liquidity requirements.” Senator Richard Shelby introduced the Financial Regulatory Responsibility Act of 2011 (FRRA) in Congress with a promise that it would hold “financial regulators accountable for rigorous, consistent economic analysis on every new rule they propose.” Bruce Kraus and Connor Raso are concerned that the SEC’s ability to regulate, and even to carry out its mandates under Dodd-Frank, will be severely compromised by these developments.

In this paper Kraus and Raso argue that, by failing to provide its own interpretation of the National Securities Markets Improvement Act’s requirement that the SEC consider the impact of its rules on “efficiency, competition and capital formation,” the SEC allowed commentators and the courts to define the agency’s obligations with respect to cost-benefit analysis. The authors critique court decisions which have addressed the SEC’s obligations to consider the impact of its rules on “efficiency, competition and capital formation,”(in particular Business Roundtable v SEC), and argue that the SEC should now “affirm its substantial and long-standing expertise in financial economics, and insist on the agency’s right, derived from that expertise, to discern and define the boundary between economic analysis and policy choice.” Kraus and Raso discuss the SEC’s composition as a multi-member, bi-partisan agency which must, as a result, engage in compromise, even log-rolling, although its ability to do so is compromised by the Sunshine Act. The structure of the SEC is thus important in thinking about how the SEC should act, and the authors argue that the requirement that the SEC engage in cost-benefit analysis should not be interpreted to “invalidate the predictable results of such a system.” Kraus and Raso approve of the SEC’s March 2012 issuance of Guidance on Economic Analysis in SEC Rulemakings, but they urge the SEC to think of “involving economists more completely in the policymaking process” as more than “a procedural change.” They argue that “the economic analysis will be more compelling if it influences (rather than merely describes and rationalizes) the substance of the rule.” Continue reading "Costing Financial Regulation"

Shining the Light on Girls in the Juvenile Justice System

Francine T. Sherman, Justice for Girls: Are We Making Progress, 59 U.C.L.A. L. Rev. 1584 (2012).

When we think of the carceral state, girls do not immediately come to mind. While the function of the juvenile justice system is ostensibly rehabilitation rather than punishment, and juveniles are detained not incarcerated, such differences are often illusory to those in the system. But even when we think of juveniles, our first image is likely to be of boys, many of whom were once cavalierly referred to as “super predators” whose perceived violence caused a shift to more punitive juvenile justice policies, including routine transfer of youths to adult courts. While we can debate how much of this image is a false characterization, it has drowned out the presence of girls in the system, except to the extent that they, too, are portrayed as violent gang members.

Francine Sherman is one of the few legal scholars who studies the plight of juvenile girls. An earlier article of hers written with Marsha Levick of the Juvenile Law Center, When Individual Differences Demand Equal Treatment: An Equal Rights Approach to the Special Needs of Girls in the Juvenile Justice System, 18 Wis. Women’s L.J. 9 (2003), is still the go-to analysis for supporting the use of gender responsive programming for both girls and adult women offenders. Her current article presents a retrospective of how girls have fared during the last 40 years of evolving juvenile justice policy and includes suggestions about new directions that would benefit this growing but ignored population. Justice For Girls is a significant article that is even better on second reading. Not only does it precisely capture the reasons underlying current policies and make practical recommendations, but it also investigates the difficulties inherent in applying the concept of data-driven research to programming for girls, an issue that has general application for evaluating the much larger universe of adult correctional programs and practices. Continue reading "Shining the Light on Girls in the Juvenile Justice System"

Estate Planning Makes Business Sense for Non-Traditional Families

McKen Carrington & Christopher Ogolla, Fame, Family Feuds, Lack of Estate Planning, and Ethical Misconduct in the Administration of the Billion-Dollar Legacy of Bob Marley, 4 Est. Plan. & Community Prop. L. J. 53 (2012), available at bepress.

Fame, Family Feuds, Lack of Estate Planning, and Ethical Misconduct in the Administration of the Billion-Dollar Legacy of Bob Marley reads like a fact pattern for a law school final examination. In the article, Professors McKen Carrington and Christopher Ogolla discuss the controversy surrounding the estate of Robert Nesta “Bob” Marley. Famed reggae icon and Rastafarian Marley died intestate in 1981 with an estate valued at approximately 30 million dollars at the time of his death. Although Carrington and Ogolla focus on Jamaican law, the issues they highlight extend far beyond Jamaica and provide a backdrop for discussing several issues important in the administration of a decedent’s estate. With respect to the administration of Marley’s estate, those issues included adopted children, out of wedlock children, intellectual property rights, fiduciary obligations of a trustee, ethical obligations of an attorney, and choice of law issues. Further, there were allegations of forgery and fraud. Carrington and Ogolla merely scratch the surface with each of these topics. I would love to see them expand on several of the topics they highlight. Real life stories make great topics for writing and teaching in the area of decedents’ estates.

One of the first issues addressed in the paper is who should be included in Marley’s family. The article provides a brief section on the Marley family structure. Although Marley was survived by a spouse, Rita and the three children born to their marital union, he was also survived by two children of Rita that he had adopted and six other children that he had fathered with other women while he was married to Rita. I would have liked for the authors to have included a little more detail about the Marley family. Continue reading "Estate Planning Makes Business Sense for Non-Traditional Families"

Hypersalience and Why Understanding Behavioral Tax Law and Economics Means Understanding Tax

Lilian V. Faulhaber, The Hidden Limits of the Charitable Deduction: An Introduction to Hypersalience (Boston Univ. School of Law, Public Law Research Paper No. 12-02, 2012).

As Lilian Faulhaber describes in her article, The Hidden Limits of the Charitable Deduction: An Introduction to Hypersalience, salience recently has become a hot topic in tax scholarship.  This increasing focus on salience arises out of the behavioral economics school.  No longer are taxpayers assumed to be rationally maximizing their utility in the manner that economic models might predict.  Rather, behavioral economics suggests that they often rely on mental shortcuts, or heuristics, to make decisions.  As a result, scholars have suggested and, to some extent, documented how the salience, or prominence, of a tax provision may determine taxpayer responsiveness to the provision.  Scholars have identified two types of salience: market salience (the impact of salience on market, or economic, activity) and political salience (the impact of salience on political outcomes).  Faulhaber’s article addresses the scholarship regarding market salience.  As Faulhaber describes, the primary focus of such scholarship has been on whether and how low salience taxes (sometimes referred to as “hidden taxes”) may cause taxpayers to underestimate the true cost of taxation and thereby potentially reduce behavioral distortions from taxation, which many view as the Holy Grail of tax policy.

However, Faulhaber astutely notes that this perspective regarding salience is only one side of the “hidden tax coin.”  Faulhaber explains that low salience tax provisions only cause taxpayers to underestimate the true cost of taxation when the tax provisions are revenue-raising provisions.  Since scholars have not focused on revenue-reducing tax provisions, they have not focused to any great extent on the phenomenon that Faulhaber introduces in this article: hypersalience.  Hypersalience, as Faulhaber defines it, is “the phenomenon by which the prominence of a tax provision leads taxpayers to overestimate its incidence.”  Hypersalience exists when there is a highly salient tax-reduction provision, combined with low salience restrictions or limitations on the tax-reduction provision.  Faulhaber’s introduction of hypersalience into the tax literature is important for a number of reasons.  First, Faulhaber’s discussion adds an important new dimension to the increasingly prominent salience scholarship.  Second, Faulhaber’s focus on hypersalience allows her to delve into a number of resulting, pressing policy issues, which have not previously been examined.  Finally, Faulhaber’s general discovery of hypersalience illustrates a basic but fundamentally important lesson: Behavioral economics phenomena do not operate in a vacuum.  Rather, how they affect taxpayers depends on how they actually interact with particular tax provisions and with the administration of such provisions. Continue reading "Hypersalience and Why Understanding Behavioral Tax Law and Economics Means Understanding Tax"

Auto-Reportage and the Enlightened User

When I first encountered Nora Young’s new book —The Virtual Self—I thought, omg, another book about that?! Don’t get me wrong; earlier this year I devoured Julie Cohen’s Configuring the Networked Self just as quickly as I did Daniel Solove’s The Digital Person back when it first came out.

But if I include an exciting new edited volume by Cynthia Carter Ching and Brian Foley released earlier this year, then by my count there are more than a dozen books in the last couple of years about constructing the self in the digital world. Continue reading "Auto-Reportage and the Enlightened User"

The (Mis)alignment Debate

Jules L. Coleman, Mistakes, Misunderstandings, and Misalignments, 121 Yale L.J. Online 541 (2012).

In Mistakes, Misunderstandings and Misalignments, Jules Coleman joins the debate precipitated by Ariel Porat’s Misalignments in Tort Law and carried on by Mark Geistfeld in The Principle of Misalignment: Duty, Damages and the Nature of Tort Liability, and by Israel Gilead and Michael D. Green in Maligned Misalignments. Coleman’s contribution to the debate is important both in its own right and because the larger debate in which it figures represents the state of play with respect to important issues in tort theory. That debate throws into relief the issues that now divide wrongs-oriented and efficiency-oriented theories of tort. The debate also flushes out the lurking significance of “harm” as perhaps the most understudied concept in tort law.

Professor Porat’s originating contribution identifies five misalignments in negligence law—circumstances where the risks accounted for in setting the standard of care differ from the risks for which liability is imposed and damages are awarded at the conclusion of a successful negligence suit. Alignment requires that the same risks be taken into account and the same valuations used by courts in setting the standard of care and in imposing liability and damages. Misalignments are a sign that the law may be structured in a way which leads potential injurers to make inappropriate investments in accident prevention. Professor Porat’s fine paper prompted three diverse rejoinders. Professors Gilead and Green rejoined that the misalignments may be ways in which the law of torts takes approximate account of negative externalities. Continue reading "The (Mis)alignment Debate"

Suspicious Eyes: The Uneasy Relationship Between Feminism, Male Parenting, and Child Molestation Laws

Camille Gear Rich, Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law, 101 Calif. L. Rev. (forthcoming 2013), available at SSRN.

How committed are feminists to gender equality?   In Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (to be published this spring in the California Law Review), Camille Gear Rich identifies an issue as to which feminists have seemed almost willfully blind: gender bias in child molestation prosecutions.

The problem is this: men are prosecuted under child molestation laws for engaging in the same behaviors that mothers perform without fear of criminal sanction. As examples, Rich describes cases in which men have been prosecuted for bathing a child’s genitals by hand rather than with a washcloth, wiping a child’s bottom after toileting, applying diaper cream to a child’s genitals, bathing with a child, and kissing a child’s naked stomach, thighs, and genitals. These examples are revealing. We would not expect mothers to be under suspicion of child abuse for these kinds of behaviors; we are not terribly surprised that men are. Why, Rich asks, haven’t feminists found this troubling? Continue reading "Suspicious Eyes: The Uneasy Relationship Between Feminism, Male Parenting, and Child Molestation Laws"

Not My Welfare State, or the Taxpayer’s Lament

Molly C. Michelmore, Tax and Spend: The Welfare State, Tax Politics, and the Limits of American Liberalism (Philadelphia: University of Pennsylvania Press, 2012).

Molly Michelmore’s new book could not be more timely. This summer the Supreme Court upheld the Affordable Care Act’s controversial individual mandate provision, through a majority opinion that links healthcare directly to the federal government’s tax power. Meanwhile, the lead-up to the presidential election has been riddled with references to tax burdens (and evasions), social welfare spending, and government “dependency.”

Historians and social scientists have much to add to this conversation, but little faith that they will be heard. A recurring theme in post-World War Two U.S. political history is how greatly the government has assisted working- and middle-class Americans (especially white men and their families) and how rarely those Americans have acknowledged that fact. This paradox persists today. Most Americans will rely at some point on a means-tested government support program, such as food stamps or Temporary Aid to Needy Families.1 Many more will accept Social Security benefits, tax credits, and other government subsidies.2 Yet these same Americans often resent the “welfare state.” In Michelmore’s words, “Americans hate government, but demand and expect, almost as a matter of right, the privileges, security, and mobility that government offers.” (p. 2-3) Continue reading "Not My Welfare State, or the Taxpayer’s Lament"

A Quantitative History of Judicial Elites

Chris Hanretty, Political Preferment in English Judicial Appointments, 1880-2005 (2012), APSA 2012 Annual Meeting Paper, available at SSRN.

We Brits like to point to our judiciary as emblematic of the superiority of our common law system. Meritocratic neutrality is one of the signal claims made by both the judiciary and the Bar. A lot of academic ink has been spilt deconstructing that particular claim, but it was nevertheless a delight to stumble across Chris Hanretty’s paper Political Preferment in English Judicial Appointments, 1880–2005. It’s a delight for a number of reasons. Firstly, Dr. Hanretty is a political scientist, and political scientists are mysteriously rare students of UK legal systems, even in the UK. Secondly, it’s based on a sophisticated quantitative analysis. Thirdly, it is well written: a delicious yet concise historical analysis of judicial appointment to the Court of Appeal. Fourthly, there’s even a bit of polite methodological argy-bargy (at p.12) for the quants guys (and it nearly always is guys) who love that stuff. But finally, it evidences several important points about the significance of politics, elites and judges.

The study looks at the promotion of judges, largely from the High Court bench (which is the first instance court of highest status) to the Court of Appeal and to what was then the House of Lords (now the Supreme Court). It tests a number of hypotheses about this promotion process to discover whether promotion appears to be related to social standing; education; early appointment as a “rising star”; whether the judge is, for instance, a family (low status) or commercial (high status) judge; overt party political affiliation (historically significant in most narratives); and whether “candidates who were previously appointed [to their initial judicial office] by the governing party are more likely to be promoted.” Continue reading "A Quantitative History of Judicial Elites"

Getting Rights Right

Daniel M. Brinks & Varun Gauri, Law’s Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights, World Bank Development Research Group Working Paper 5999 (March 2012), available at SSRN.

This working paper makes a thought-provoking contribution to debates about the value of litigating rights to advance social change. It asks whether litigating the socio-economic rights that have been incorporated into many of the constitutions drafted during the past 50 years or so has what the authors term “pro-poor” effects. And, to the extent that such effects occur, what political, economic, social and legal factors and institutions might account for them?  In response to these questions the authors offer a comparative analysis and reworking of data from five case studies of socio-economic rights litigation reported in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, a book edited by the same authors and published in 2008.

All five research sites are large so-called emerging economies with constitutions that recognise socio-economic rights, some more explicitly than others.1 The case studies of socio-economic rights litigation in India, Nigeria, Indonesia, Brazil and South Africa that are discussed in the 2008 book provide extensive details of reported cases in the fields of health care and education in each country and the authors estimate the direct and indirect effects of the cases on each country’s population and public policy. This paper revisits the data, incorporating it into a small sample comparative study across the five jurisdictions; a study that makes intriguing, if cautious, claims about the capacity of some courts to decide some socio-economic rights claims in ways that are beneficial to some of the poor. Continue reading "Getting Rights Right"

Federal Crimes, State Courts, and Palmore

Michael G. Collins & Jonathan Remy Nash, Prosecuting Federal Crimes in State Courts, 97 Va. L. Rev. 243 (2011).

In 1973, the Supreme Court in Palmore v. United States upheld Congress’s creation of an “Article I” court in the District of Columbia—the D.C. Superior Court—against a claim that Congress lacked the power to invest non-Article III federal courts with the authority to entertain criminal prosecutions arising under federal law. One of the linchpins of Justice White’s analysis for the 8-1 majority was his observation that, “Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III.” As White explained, if it did not violate Article III for Congress to allow state judges to entertain federal criminal prosecutions, then it would be far harder to understand why, in at least some circumstances, non-Article III federal criminal adjudication—especially in a tribunal acting as a quasi-state court— should not also be permissible.

And yet, as Michael G. Collins and Jonathan Remy Nash persuasively demonstrate in Prosecuting Federal Crimes in State Courts, the historical record to which Justice White alluded in Palmore is “sketchy at best.” Instead, Collins and Nash’s article offers a compelling mix of historical, legal, and policy-oriented explanations for why the scattershot exceptions from the earliest years of the Republic may in fact prove the rule—that state courts generally do not (and should not) have the power to entertain criminal prosecutions arising under federal law. And whereas Collins and Nash’s article comes in response to a series of recent proposals to expand the federal criminal jurisdiction of state courts, the true significance of their analysis may be the extent to which it deprives Palmore (and, as such, federal criminal adjudication in non-Article III federal territorial courts in general) of perhaps its strongest analytical underpinning. Continue reading "Federal Crimes, State Courts, and Palmore"

The U.S. Supreme Court As Fact Finder?

Allison Orr Larson, Confronting Supreme Court Fact Finding, 98 VA. L. REV. 1255 (2012).
Mark KendeMatthew Shimanovsky

Mark Kende and Matthew Shimanovsky

Chief Justice John Roberts, Jr. made headlines during his confirmation hearings by comparing judges to baseball umpires. Now imagine that umpires had the ability to secretly obtain expert and other opinions about whether a pitch is a ball or strike.  That is the question raised by Allison Orr Larson’s important new article, Confronting Supreme Court Fact Finding. Larson’s article shows how U.S. Supreme Court justices are actually doing more of their own fact-finding, rather than just acting as the nation’s highest appellate court of law.  Following Kenneth Culp Davis, she calls these findings “legislative facts,” to contrast them with “adjudicative facts.”  The article usefully explores the causes and consequences of this significant development.

Larson shows that some justices have used “in house” fact finding, beyond the crucible of the adversary process and cross examination, in 90 of 120 of the most important cases decided in the last 15 years.  Of those 90 cases, 47% cite to 4 or more sources outside of the briefs.  Larson says that the Internet has been instrumental in permitting such fact finding.  The Internet allows each justice to bolster an opinion, counter a scathing dissent, or justify overturning previous case law. Continue reading "The U.S. Supreme Court As Fact Finder?"

Does Anyone Really Understand Medicare? Richard Kaplan Does, and You Can, Too

Richard L. Kaplan, Top Ten Myths of Medicare, 20 Elder L.J. 1 (2012).

When former Massachusetts Governor Mitt Romney chose Paul Ryan to be his running mate in the 2012 United States Presidential election, he guaranteed that Medicare would become a central battleground of the campaign.  Ryan, a veteran Congressman from Wisconsin, is widely known for his efforts to turn the federal Medicare program into a voucher program (with the value of the vouchers deliberately calibrated not to keep up with health care costs over time), a transformation that would change everything about Medicare except its name.

Ryan’s proposal is sufficiently controversial that the Romney/Ryan camp has gone to significant lengths to distance itself from it – refusing to use the word “vouchers,” for example, which they evidently believe is toxic politically.  At the same time, the Republican team’s strategists have made a point of highlighting the decreases in Medicare spending that have been projected as a result of various cost-saving measures in the Patient Protection and Affordable Care Act, calling those measures “cuts in Medicare” for which President Obama should be blamed.  Both parties apparently believe that there is such strong support among likely voters to preserve Medicare that they must try to convince voters that the other candidate is going to gut the program, even though only the Republican side has ever proposed actually doing so. Continue reading "Does Anyone Really Understand Medicare? Richard Kaplan Does, and You Can, Too"

Prisons, Poverty And Power

Yes, yes, I know this is the Journal of Things We Like.  And I like, like, like Ian Haney Lopez’s essay, “Post Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama.”  But to understand why I like it so much, I have to say a word about something I also liked, but not as much as I had wanted to.

A great deal of attention has been paid to Michelle Alexander’s book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.  The attention is well deserved; Alexander is a great writer with an eye for a compelling narrative.  But truth be told, I was left feeling a bit dissatisfied when I finished reading.  How does the New Jim Crow racism actually work, structurally speaking, when it comes to mass incarceration?  Is subconscious bias (by police) and naked political gain (by the architects of the war on drugs) really the entire story?  Isn’t there a deeper, more coherent structural story to tell here with regard to cause? Continue reading "Prisons, Poverty And Power"

Implicit Bias: Moving from Theory to the Courthouse

Jerry Kang, Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson & Jennifer Mnookin, Implicit Bias in the Courtroom59 UCLA L. Rev. 1124 (2012).

Having a total of ten authors for one article would make this rather exceptional even without regard to the topic. That these authors participated together in a symposium on implicit bias is not a surprise. But what is unusual, if not exactly surprising, is that they together wrote this one article. This is not the typical scenario for the papers delivered at a conference. The ten include legal academics, scientists, researchers, and a sitting federal judge. Six are law professors, though two of them hold joint appointments. One is a research consultant for the National Center for State Courts, two are psychology professors and one is a federal district court judge. They all come to the study of implicit bias from their respective points of perspective but the article is a fully integrated article.

The question the article begins to answer is: What, if anything, should we do about implicit bias in the courtroom? The scientific literature on implicit bias and the role implicit bias might play has been the subject of considerable legal literature. Part I provides a clear, straightforward introduction to the science involved in understanding that implicit bias exists, what it is, and how it works. The article defines implicit attitudes and stereotypes as biases “not consciously accessible through introspection.” Accordingly, their impact on a person’s decision-making and behaviors does not depend on that person’s awareness of possessing these attitudes or stereotypes. Consequently, they can function automatically, including in ways that the person would not endorse as appropriate if he or she did have conscious awareness. If you remember, Ross Perot in the 1992 Presidential campaign gave a vivid example of implicit bias that gets disclosed unintentionally. While speaking at an NAACP meeting,  Perot addressed his audience several times as “you people” or “your people.” Especially since the topic of the speech was crime and illegal drugs, many perceived Perot as expressing a stereotypical view of African Americans as being identified with crime and drugs. He had no incentive to be avowedly racist and there is no indication that he was conscious of the obvious inference listeners drew based on the language he used. Continue reading "Implicit Bias: Moving from Theory to the Courthouse"

Linking Financing To Decisionmaking In The U.S. Patent System

Michael Frakes & Melissa F. Wasserman, Does Agency Funding Affect Decisionmaking?: An Empirical Assessment of the PTO’s Granting Patterns, 66 Vand. L. Rev. (forthcoming, 2013), available at SSRN.

As patent law has grown in social and economic importance, a growing number of scholars have given attention to analyzing the structure of the patent system.  The number of patents issued per year has increased significantly in the past few decades, and, in at least some fields, the breadth of products or activities on which these issued patent claims read has also increased.  Scholars studying the system have given the design and functioning of the U.S. Patent and Trademark Office (PTO) increased scrutiny on a number of fronts.  Among its many duties, central is the PTO’s power and obligation to decide whether the rights to control a putative invention belong to the patent applicant, to a different applicant, or to the public.

Although patent prosecution is an ex parte proceeding, the patent examiner stands between the applicant and the public in deciding who shall receive the entitlement to use, or exclude others from using, the invention.  Due process norms usually require such decisionmakers to be unbiased and free from conflicts of interest.  However, since 1991, the PTO has been paid to make this decision from fees paid by one of the parties to the decision:  the applicants or patentees.  Not surprisingly, senior PTO officials have on more than one occasion referred to applicants and patentees as the office’s “customers.” Might this financing arrangement affect the agency’s interpretation and application of the law?  Most scholars have assumed that it does to some extent, but this extent and the operation of this assumed bias has been underexamined.  Until now. Continue reading "Linking Financing To Decisionmaking In The U.S. Patent System"

Testing the Expertise Hypothesis

Joshua D. Wright & Angela M. Diveley, Do Expert Agencies Outperform Generalist Judges?  Some Preliminary Evidence from the Federal Trade Commission (2012), available at SSRN.

Proponents of administrative agencies have long touted the expertise that specialized agencies enjoy. Indeed, perceived agency expertise helps to explain Congress’s willingness to delegate to agencies the authority to set policy through rulemaking, to render adjudicatory decisions, and to conduct other activities. Yet, as Joshua D. Wright and Angela M. Diveley point out in a study posted this past January to SSRN, the so-called “expertise hypothesis”—which posits that expert agencies will consistently produce higher quality outputs than generalists—lacks empirical support. In their recent study, Wright and Diveley seek to fill the void by conducting an empirical study that examines whether the Federal Trade Commission (FTC) performs as well as generalist judges in its adjudicatory antitrust decision-making role.

Specifically, Wright and Diveley’s study tests the expertise hypothesis by comparing antitrust decisions before the FTC with those issued by Article III courts. They use “appeal” as their primary measure of quality performance—comparing the appeal rates of federal district court judges and FTC Commissioners. They explain that appeals are a “useful indicator for whether the initial court made an error” because “a higher appeal rate implies the decision-maker has issued more opinions that leave at least one party feeling strongly enough to invest in the opportunity for another decision-maker to decide that he has committed reversible error.” (P. 12) Nonetheless, because they acknowledge that reversal rates also can contain some information on the quality of the underlying decision, Wright and Diveley also report their results about the differences between the FTC and generalist judges using reversal rates.  Continue reading "Testing the Expertise Hypothesis"

Professor Tadros’ Wild Ride: Duty, Defense, Deterrence and the Criminal Law

Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (Oxford University Press 2011).

I grew up in Miami and spent many a Memorial Day weekend at Disney World in Orlando, Florida.  One of my favorite rides was Mr. Toad’s Wild Ride, with its unexpected twists and turns and characters jumping out of nowhere.  Reading Victor Tadros’ The Ends of Harm made me feel like that kid again.  Here are three reasons why.

First of all, the thesis upends much of our thinking about the justification for punishment.   Tadros first attacks retributivism, which is roughly the view that desert is at least a necessary, if not a sufficient, reason to punish.  (There is, by the way, no definition of retributivism that is not somewhat contentious these days.)  He then turns to an unusual defense of general deterrence.  He believes that the justification for the criminal law should be that it prevents harm.  However, he also takes seriously the deontological constraint that we cannot use people as “mere means.”  This latter issue frequently gets deterrence (and other consequentialist) accounts of the criminal law into trouble, as retributivists argue that consequentialism theoretically permits the scapegoating of innocent persons.  If you can prevent harm by scapegoating an innocent person, a general deterrence theorist simply lacks the theoretical resources to explain why this should not be done.  Tadros agrees with retributivists that one cannot use people, and so he needs an account that does not rely on desert to explain why it is permissible to punish some people to discourage others from committing crimes.  The answer he comes up with is that offenders have a duty to suffer in the name of general deterrence. Continue reading "Professor Tadros’ Wild Ride: Duty, Defense, Deterrence and the Criminal Law"

The Anatomy of a Will Contest

Gerry W. Beyer, Will Contests – Prediction and Prevention, 4 Estate Planning & Cmty. Prop. Law J. 1 (2011), available at SSRN.

Gerry W. Beyer’s Will Contests-Prediction and Prevention starts with a discussion of reasons to anticipate a will contest. He points out society has come to accept nontraditional families as a societal norm and yet the likelihood of a will contest increases when a decedent makes bequests that pass outside of what we define as a traditional family. Thus, for example, from a planning standpoint the best option for a testator involved in a same-sex relationship is to create a will because the intestacy laws will not make provision for the surviving partner. The article points out that even when the testator plans in advance, the likelihood of this will being challenged by a blood relative is much higher than when bequests are made to traditional family members.

Professor Beyer points out that historically, no-contest clauses have been used as a weapon to deal with the potential threat of a will contest. Even so, Professor Beyer points out that no-contest clauses are becoming less reliable as a deterrent because enforceability may be called into question. With that in mind, Professor Beyer offers an alternative solution — an incentive not to contest the will: In exchange for not challenging the will for a period of 2 years after the date of death, the beneficiary would receive a gift. Such a provision may be especially valuable for states where no-contest clauses are not enforceable. Continue reading "The Anatomy of a Will Contest"

New Jotwell Section: Torts

Today we inaugurate a new Jotwell section on Torts, edited by Gregory Keating, William T. Dalessi Professor of Law and Philosophy at the USC Gould School of Law and Catherine Sharkey, Crystal Eastman Professor at New York University School of Law. Together they have recruited a stellar team of Contributing Editors.

The first posting in the Torts section is Insurance as Safety Regulator by Catherine Sharkey.

We intend to continue to add other new sections in the coming months — Health Law is next, with more to come. Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

Insurance as Safety Regulator

Omri Ben-Shahar & Kyle D. Logue, Outsourcing Regulation: How Insurance Reduces Moral Hazard, 111 Mich. L. Rev. (forthcoming 2012) available at SSRN.

In Outsourcing Regulation: How Insurance Reduces Moral Hazard, Omri Ben-Shahar and Kyle Logue make a pitch for the underappreciated role of insurance as manager and minimizer of safety risks.

The study of tort law in the modern administrative state increasingly entails a comparative institutional account of private common law versus public agency control in terms of satisfying the goals of compensation and regulation of safety risks.  I would go so far as to say that the future of tort law and scholarship belongs to those who tackle complex health and safety issues by integrating concepts and doctrines drawn from public administrative law and private tort law.  Ben-Shahar and Logue make a major contribution by adding the third dimension of insurance: “Choosing the ideal regulatory role of these two institutions—agencies versus courts—depends on how well insurance arrangements support the regulatory function of tort and agency law.” (P.20) Continue reading "Insurance as Safety Regulator"

Meet the Editors

Torts 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 Gregory Keating
William T. Dalessi Professor of Law and Philosophy
USC Gould School of Law

Professor Catherine Sharkey
Crystal Eastman Professor of 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 gentle 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. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve. 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 can 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"

Are Tax Treaties Unconstitutional?

Rebecca Kysar, On the Constitutionality of Tax Treaties, 38 Yale J. Int’l L. (forthcoming 2012) available at SSRN.

In a forthcoming article entitled On the Constitutionality of Tax Treaties, Rebecca Kysar argues that current tax treaties are unconstitutional under the Origination Clause because they alter the tax law without the involvement of the House of Representatives.

Kysar builds her argument though careful historical and doctrinal analysis.  She shows that the Origination Clause was an important concession to the large states that acted as a counterbalance to some of the prerogatives of the Senate, including the treaty power.  She shows that although the text of the Origination Clause requires only that “bills for raising revenue” originate in the House, the Supreme Court has interpreted the clause to refer to legislation that increases or decreases revenue.  Thus, Kysar argues that, even if the net effect of tax treaties were to reduce tax revenues, the Origination Clause should still apply to them because their “primary purpose” is a revenue purpose, and it is the law’s “primary purpose” that matters for the Origination Clause.  Among many other court cases, Kysar discusses at length two relevant Supreme Court precedents.  First is Missouri v. Holland, in which the Supreme Court upheld against a Tenth Amendment challenge a properly ratified treaty that sought to accomplish a goal outside the enumerated powers of Congress.  In Holland, the Court further held that the Necessary and Proper Clause permitted Congress to pass legislation to accomplish treaty goals that Congress could not accomplish by regulation alone (the treaty involved the regulation of hunting of migratory birds).   The other relevant precedent was Reid v. Covert, in which a plurality of the Court held that a treaty could not override individual rights guaranteed by the Sixth Amendment.  Kysar makes the argument that tax treaties should be analyzed more like the individual rights in the Sixth Amendment, and less like the reservation of powers in the Tenth Amendment since the Origination Clause represents an exclusive grant of power.   Furthermore, where appropriations, another exclusive prerogative of the House, is concerned, it has long been policy to seek implementing legislation for treaties.  Kysar traces procedure to the Jay Treaty, in which the House asserted its right to enact implementing legislation, and she convincingly argues that the failure of the House to similarly assert its constitutional prerogative under the Origination Clause with respect to tax treaties could not cure any constitutional infirmity in such treaties. Continue reading "Are Tax Treaties Unconstitutional?"

Delinking Sex/Gender from Parenting

Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012), available at SSRN.

As we all know, the question of whether sex/gender should serve as an eligibility criterion in the distribution of marriage licenses has received a vast amount of attention over the last two decades. Although the issue of whether sex/gender is a crucial element of parenting has received less attention, it is no less important. In this exciting and path-breaking article, Darren Rosenblum calls for the unsexing of motherhood and fatherhood—that is, for the severing of parental categories from biological sex. In Rosenblum’s perfect world, anyone—regardless of sex—can be a mother or a father. The decoupling of parenting from sex will “ultimately eliminate the presumption that the primary parent is the mother, in which case a parent of any sex could claim to be the primary parent.” He adds that “[p]arents would be expected to provide nurturing, support, structure, and discipline to children, but they would not need to divide these and other elements of childcare based on parental biosex.”

As Rosenblum perceptively explains, a powerful interplay of institutions and norms help to link parenting categories with sex. One of these is the market. The fact that men dominate the market sphere reinforces cultural stereotypes about women’s “natural” capabilities in the domestic sphere. And natural understandings of motherhood place great importance on genetics, gestation, and lactation, seemingly ignoring the fact that it is possible for women—those who become parents through adoption or surrogacy, for example—to be mothers in the absence of one or more of these biological factors. Continue reading "Delinking Sex/Gender from Parenting"

Judicial Independence, But From What?

Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard University Press, 2012).

I think history is most fun to read when it upsets the conventional understanding of something in the present day. That’s a hard trick to pull off. Most conventional understandings are pretty close to the truth – otherwise they would have been abandoned already. And if you want to buck the conventional wisdom about something in the present, you’re more likely to succeed simply by explaining why it’s wrong in the present rather than by detailing its past. It takes an unusual combination of insight and luck to find a topic you can make readers see completely differently by writing its history.

Before I read Jed Shugerman’s The People’s Courts, I would never have guessed that judicial elections were that kind of topic. Like most lawyers, I suppose, I thought judicial elections were a little silly at best, and sometimes downright pernicious. How are voters supposed to know who the good judges are? And worse, how can elected judges prevent politics from leaking into their decisions? The last thing we want is for a judge to be keeping an eye on his reelection when he’s deciding, say, whether a notorious murderer’s rights have been violated, or whether a popular new law is unconstitutional. If you’ve ever been in a state with contested judicial elections and seen the TV commercials in which the candidates all claim to be the toughest on crime, you start to worry about the intrusion of politics. I imagine that’s the conventional understanding of judicial elections. It was certainly mine. Continue reading "Judicial Independence, But From What?"

Big and Innovative? The Future of Law Firms (Not Only the American Ones)

Bernard A. Burk & David McGowan, Big But Brittle: Economic Perspectives on the Future of the Law Firm in the New Economy, 2011 COLUM. BUS. L. REV. 1 (2011) available at SSRN.

Until the recent global financial crisis, elite law firms had been growing in size and number of offices for decades, both in the United States and across the world. Accordingly, the reasons behind law firm growth have fascinated legal scholars as well as social scientists studying the legal profession. Many theories have been formulated and tested by empirical research. Burk and McGowan’s article not only provides an excellent summary of these competing theories, but also proposes two new perspectives, namely, (1) relational capital and internal referral network; and, (2) technological innovation and transaction cost. Both are familiar theories in other research areas but neither had been applied to explain the growth of law firms.

In this essay, Burk and McGowan examine the evolution of large law firms in America from the late nineteenth century to the 2008 economic recession. Until the 1960s, most elite law firms have had a simple “partner-associate” two-tier structure following the Cravath System, which emphasized the long-term training of associates, the “up or out” rule of promotion, and the lockstep system for partners. Lateral hiring of partners were rare. As a result, firm growth was steady, featuring what Galanter and Palay have called law firms’ “internal growth engine.” From the 1970s to the mid-2000s, however, law firm growth entered an “explosive” era – the growth rate of elite firms jumped from 5% per year to 8% or more (p. 11). By the mid-1980s, the number of American law firms with more than a hundred lawyers had increased from a dozen to more than 250. The growth in size was accompanied by the expansion of geographic locations and lateral mobility. By 1988, over a quarter of the 500 largest American law firms had acquired more than half of their partners laterally. The lateral movement of associates had also become more frequent. As a result, the Cravath System was significantly eroded. Meanwhile, the formal structure of large law firms had become more complex – two-tier partnership was more commonly adopted, with an increasing proportion of non-equity partners and a higher leverage (i.e., associate-partner ratio) in most firms. Continue reading "Big and Innovative? The Future of Law Firms (Not Only the American Ones)"

Is Critical Citizenship Critical?

Angela M. Kupenda & Michelle D. Deardorff, Negotiating Social Mobility and Critical Citizenship: Institutions at a Crossroads, 22 U. Fla. J.L. & Pub. Pol’y 335 (2011).

It is a good thing when those of us in education are urged to be more thoughtful about what we seek to achieve through our teaching and scholarship. An analysis of the possible impact that education can have moves beyond the standard questioning of pedagogy, and speaks to the societal value of education as transformative, not just for the student and future graduate but also for society. Such higher order questions, as I like to call them, are not typically the stuff of faculty meetings, but they are at the core of a recent article by Professors Angela Mae Kupenda and Michelle Deardorff.

In their article, Negotiating Social Mobility and Critical Citizenship: Institutions at a Crossroads, the authors juxtapose two seemingly inconsistent struggles faced by institutions of higher education – improving the socioeconomic possibilities of our students versus preparing students for what they theorize as “Critical Citizenship.”: Continue reading "Is Critical Citizenship Critical?"

Introducing the Court

Linda Greenhouse, The U.S. Supreme Court: A Very Short Introduction (Oxford University Press 2012).

The U.S. Supreme Court: A Very Short Introduction is indeed a very short book (far shorter than most law review articles), but it is no “Supreme Court for Dummies.” To the contrary, it is a sophisticated, yet accessible, addition to Oxford’s Very Short Introduction series.

This much the author’s identity gives away. Though she now teaches at Yale Law School and no longer covers the Supreme Court full time, the fabulous Linda Greenhouse remains one of Court’s most astute students. (And she continues to write an opinion column for The New York Times website, which should never be missed for its insights on the current Court.) Continue reading "Introducing the Court"

Good Things Come in Small Packages

Margaret H. Lemos, Interpretive Methodology and Delegations to Courts: Are “Common-Law Statutes” Different?, in Intellectual Property and the Common Law (Shyam Balganesh ed., Cambridge University Press, 2012).

Slightly off the mainstream of employment law scholarship is Margaret Lemos’s Interpretive Methodology and Delegations to Courts: Are “Common-Law Statutes” Different. This is a terrific, creative piece in only 14 pages. I am especially pleased to be able to highlight it on Jotwell because it will appear in a chapter entitled Intellectual Property And The Common Law (Shyam Balganesh ed., Cambridge University Press, 2012), and therefore might well be missed by most employment law types.

Professor Lemos starts with a commonplace of statutory interpretation, asks why, and comes up with answers that make one reconsider fundamental beliefs. What more could one ask?

The commonplace is that the normal methods of interpretation (whatever they happen to be at the time) are inapplicable when it comes to “common law statutes.” The paradigmatic example of such a statute is the Sherman Act, which is generally viewed as an enabling act — an authorization by Congress to the courts to create jurisprudence of “restraint of trade” largely unconstrained by common law precedents, textualist fussiness, or any need to discern legislative intent. In contrast, “normal” statutes, such as Title VII, are subject to a process of “statutory interpretation,” which these days requires an elaborate parsing of words in order to determine what the enacting Congress intended by the language it chose. Continue reading "Good Things Come in Small Packages"

Efforts to Expand Public Participation in Rulemakings Have Been a Failure

Cynthia Farina, Mary Newhart & Josiah Heid, Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, 2 Mich. J. Envtl. & Admin. L. (2012), available at SSRN.

In Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, Cynthia Farina, Mary Newhart, and Josiah Heidt explain why the initial efforts to encourage use of electronic media to broaden participation in rulemaking have not, and can not, work. The opening paragraph of the article describes and criticizes the reasoning process that has inspired the initial efforts:

Open government enthusiasts (among which we certainly count ourselves) seem prone to magical thinking—i.e., the building of if-then links that are not objectively justifiable. Open government magical thinking has several strands. If we give people the opportunity to participate, they will participate. If we alert people that government is making decisions important to them, they will engage with the decisionmaking process. If we make relevant information available, they will use that information to engage meaningfully. If we build it, they will come. If they come, we will get better government. (P. 1.) Continue reading "Efforts to Expand Public Participation in Rulemakings Have Been a Failure"

Erie, Swift, and Legal Positivism

Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 Wm. & Mary L. Rev. (forthcoming 2013) available at SSRN.

Philosophy of law can get lonely. Most law professors, not to mention lawyers, don’t care whether legal positivism or some kind of anti-positivist alternative is correct. It is surprising, therefore, that philosophers of law so rarely discuss Erie Railroad Co. v. Tompkins, since Erie suggests that the philosophy of law can be relevant to legal practice.

Legal positivism is identified, in part, by the social fact thesis: the law of a jurisdiction is fundamentally a matter of social facts concerning officials (or the general population) within the jurisdiction. In his opinion in Erie, Justice Brandeis rejected the regime of Swift v. Tyson, in part, because he thought Swift was incompatible with this thesis. In Swift, Justice Story opined about the common law prevailing in New York without deferring to the decisions of New York state courts. That sounds anti-positivist. Story apparently understood the common law to be binding in New York independently of social facts about New York (or, indeed, any other jurisdiction’s) officials. Continue reading "Erie, Swift, and Legal Positivism"

Estate Planning Is Better Than Xanax

Mark Glover, A Therapeutic Jurisprudential Framework of Estate Planning, 35 Seattle Univ. L. Rev. 427 (2012).

Sometimes a will is not just a will.  In Mark Glover’s recent article, he illuminates the psychological power that the law of wills and the process of estate planning can have.  Although I’ve long suspected many of us who work in the world of trusts and estates do so for psychological reasons (what drives us to attempt to control death?), I’ve never seen the connection between psychology and the law of death made so persuasively and concretely.

Professor Glover begins with a useful introduction to therapeutic jurisprudence.  It seems a gentle and unobtrusive movement; it largely suggests that, all other things being equal, the law should tilt toward rendering positive psychological consequences rather than negative ones.  Fair enough.  The model requires an analysis of the impact of laws on people, noting both the negative and positive psychological effect of the constructs law has created.  An analysis should lead to an adjustment in the law if the primary goals of the law could be accomplished in a way with better net psychological impact. Continue reading "Estate Planning Is Better Than Xanax"

New Light on the Old World and Commandeering

Jud Campbell, Commandeering and Constitutional Change, 122 Yale L. J. —, (forthcoming 2013) available at SSRN.

Some of the best constitutional history papers have a single conceptual move that makes you see the world differently.  Once you understand some previously unappreciated legal rule or piece of historical context, everything falls into place.  Jud Campbell’s forthcoming article in the Yale Law Journal, Commandeering and Constitutional Change, is just such a paper.

The topic is “commandeering”—i.e., whether the federal government can force state officers to execute federal law.  The Supreme Court has said that it cannot, because commandeering is inconsistent with state sovereignty.  Campbell’s central insight is this:  At the time of the Founding, commandeering was the Anti-Federalist position, not the Federalist position.  The Anti-Federalists thought that it was much better for state sovereignty to have federal law executed by their own officers.  They did not want a corps of officers in the states with federal paychecks and federal allegiance, and they were willing to accept commandeering, as opposed to voluntary cooperation, as the price of state execution. Continue reading "New Light on the Old World and Commandeering"

The Pain of Others

Imagine an interrogation chamber, twenty-five years from now. Rather than a dungeon or a prison cell, this space resembles the radiology suite of a hospital. A detainee is strapped to a gurney, electrodes attached to strategic parts of his body, rolled into a functional magnetic resonance imaging (fMRI) scanner, and there held immobile for the duration of the interrogation. Whenever he refuses to answer a question or gives an answer believed to be untruthful or incomplete, the detainee receives an electric shock. As the interrogation intensifies, so does the pain. Suddenly, however, the interrogation stops. The signal has been given from the observation room that the subject’s pain level has reached the threshold for “torture” established by the Geneva Convention.

What does it mean for criminal law, and for international humanitarian law, that we can see and measure the pain of others?

More generally, to what extent can scientific discoveries and technological advances solve (or dissolve) pressing moral debates? Continue reading "The Pain of Others"

Top-Ten Lists And Five-Star Reviews: Ratings, Rankings, And Creativity

James Grimmelmann, Three Theories of Copyright in Ratings, 14 Vand. J. Ent. & Tech. L. 851 (2012).

Until about a year ago, as the New York Times recently reported, Todd Rutherford had a successful business working with writers to help them market their self-published books on the Internet.  Rutherford’s previous career had involved more traditional publicity efforts — talking up his clients’ work in the hope that a reviewer at a newspaper or a blog would take notice.  But eventually he realized that it made more sense to “cut out the middleman and write the review himself.”  And so was born, a business that, depending on how much the author was willing to pay, would write one, twenty, or even fifty online reviews singing a book’s praises.  “Before he knew it,” the Times reported, “he was taking in $28,000 a month” and had to hire freelancers to keep up with the demand.  Rutherford may have been particularly up-front about the nature of his business practices, but he was by no means an outlier; one estimate is that about one-third of online reviews purporting to be by actual consumers are marketing schemes rather than genuine reviews.

Rutherford did not, apparently, assert a proprietary interest in his company’s reviews; in any event, the service later foundered when Google, and then Amazon, took notice.  But one might suggest that the inherently creative nature of the reviews – at least one of the freelancers admitted that she hadn’t actually read the books she “reviewed” – would put them squarely at the heart of copyright law’s scope of protectability.  If this is the case, does that suggest something troubling about ratings?  Or about copyright law more generally?

A recent article by James Grimmelmann seems to pose a simple question: Are ratings copyrightable?  But what makes this short piece especially thought-provoking is the way in which Prof. Grimmelmann uses this question as a way of interrogating various fundamental doctrines of copyright law: the idea/expression dichotomy, the originality and creativity requirements, and the nature of fact versus opinion among them. Continue reading "Top-Ten Lists And Five-Star Reviews: Ratings, Rankings, And Creativity"

Rosenkrantz and Guildenstern Write Contracts

Mark Weidemaier, Robert Scott, & Mitu Gulati, Origin Myths, Contracts, and the Hunt for Pari Passu, L. & Soc. Inquiry (forthcoming 2012) available at SSRN.

Every so often, an odd take on an obscure thing resonates in a big way. My first clue came when a colleague who writes about cyberlaw blasted around a paper about a silly old clause in government bonds to the entire business law listserv. Then plaintiffs, defendants, and amici on all sides cited to the same paper in briefs to the Second Circuit. Then a big-time finance journalist talked it up over dim sum. Then a bankruptcy friend said that I should review it on Jotwell. To be sure, I knew and liked the piece (and the authors1)  but what was in it for the general audience? It is about a clause with a Latin name and unknown meaning, collecting dust in contracts too-exotic for textbooks. The authors’ major finding is that fancy corporate lawyers who draft the clause like to describe themselves as bits of debris bobbing on the waves of history … even as they paddle while no one is looking. And yet, in their seemingly discrete tale about a technicality, Mark Weidemaier and colleagues strike some important chords.

Weidemaier, Scott, and Gulati write about the pari passu clause in sovereign debt contracts. The clause usually says, with minor permutations, that the debt is and will rank pari passu (in equal step) with others like it. For all anyone knew, pari passu lived a quiet life in bond boilerplate until an enterprising creditor used it ambush a Brussels magistrate, get an injunction, and collect money from an immune government.2  This caused a kerfuffle in both law and policy circles for upsetting the delicate balance between debt collection and sovereign immunity. To the policy people’s credit, they fixed the narrow problem right away with a statute barring similar injunctions in Belgium. But the contract clause remained and even grew in stature, all the while eminent lawyers in New York and London heaped scorn on pari passu and the Brussels court. Continue reading "Rosenkrantz and Guildenstern Write Contracts"

Tax Reform, Tax Expenditures, and the Role of the Tax Scholar

Edward D. Kleinbard, The Congress Within the Congress: How Tax Expenditures Distort Our Budget and Our Political Processes, 36 Ohio N.U. L. Rev. 1 (2010) available at SSRN.

One of the more dynamic figures on the current tax scene is Ed Kleinbard, a top-shelf New York tax lawyer who became Chief of Staff of the congressional Joint Tax Committee and then, in 2009, a full-time member of the USC tax faculty. Among the various topics he has addressed are international taxation, capital income taxation, and the taxation of financial services, all with a keen understanding of “what really happens” and (typically) constructive suggestions on how to make the system work better.

Perhaps the most theoretically salient aspect of Prof. Kleinbard’s scholarship is his characteristically irreverent approach to the problem of tax expenditures and tax reform. Like many historic assaults on traditional tax policy, it began with a speech, “Rethinking Tax Expenditures”, which Kleinbard delivered in 2008 and which was further developed in a subsequent lecture and a Joint Committee pamphlet. The essential point was that tax expenditure analysis, developed by Stanley Surrey and emphasizing the comparison of tax deductions, credits, etc. to direct spending measures, had to a large degree outlived its usefulness. The reasons for this included the difficulty, first noted by Boris Bittker in the 1960s, of defining a “normative” tax system from which deviations could be measured, and the wide variety of different provisions, ranging from business incentives to social welfare programs, that were covered by the tax expenditure label. In his speech and related publications, Kleinbard called for a more systematic typology of these provisions together with a more sophisticated analysis of the political forces that encouraged reliance on tax expenditures: a reliance which, the author noted, has proved largely resilient to traditional tax expenditure analysis and has, if anything, been encouraged by procedural reforms that make direct spending programs even more difficult. Continue reading "Tax Reform, Tax Expenditures, and the Role of the Tax Scholar"

The Uniform Sister-wife Act: Ensuring A Fair Share of the “Marital Pie ”

Adrienne D. Davis, Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 Colum. L. Rev. 1955 (2010).

Adrienne Davis’s recent article, Regulating Polygamy: Intimacy, Default Rules and Bargaining for Equality, is a must read for family law scholars, marriage equality scholars, as well as anyone interested in understanding the limits of contemporary analogies made between gay marriage and polygamy.

Davis begins her analysis by highlighting the fundamental difference between these two frequently compared marriage forms. She argues that gay marriage proponents’ commitment to dyadic two-person marriages makes their quest starkly different from polygamy proponents’ quest for social recognition of a marriage model that recognizes the affective and cooperative links between multiple marriage partners. Continue reading "The Uniform Sister-wife Act: Ensuring A Fair Share of the “Marital Pie ”"

Just a Little Bit of History Repeating

Peter Decherney, Hollywood’s Copyright Wars: From Edison to the Internet (Columbia University Press, 2012).

Peter Decherney has written an excellent book about the ways in which copyright laws have shaped and responded to the movie industry in the US.  Professor Decherney, who, not incidentally, was instrumental in achieving the first context-specific exemption for ripping DVDs (for use in teaching film studies, renewed in the 2009 cycle), has a sharp eye for the way the movie industry has exploited and reacted to law as part of its business models over time.  He suggests that the usual reaction of the industry to legal rulings has been self-regulation either to confirm or to avoid the formal law, depending on what works best for the people in charge.

History repeats, not just in the oft-told story of new media relying on unauthorized copying from old media—plays into films, for example—but also in the smaller details.  The relationship between technological measures designed to prevent copying and unauthorized copying, for example, goes back to the start of moviemaking, when different producers used film with different sprocket holes in order to preserve their control over their own preferred, often patented, technologies.  This incompatibility didn’t deter copying, though.  Instead, it led people who wanted to show movies to make their own copies to fit on their own equipment, just as technical protection measures still do today. Continue reading "Just a Little Bit of History Repeating"

On Becoming Relevant: The Role of Legal History in Legal Scholarship

Tabatha Abu El-Haj, Changing the People: Legal Regulation and American Democracy, 86 N.Y.U. L. Rev. 1 (2011), available at SSRN.

A while back over at the Legal History Blog, there was a brief discussion about the relevance of legal history to the legal academy.  On the heels of this discussion, Pierre Schlag posted a typically hilarious paper on SSRN about the faculty workshop that in part demonstrated the irrelevance of legal history, or at least the inability of legal scholars to access historians’ questions.  This is probably the main source of anxiety/frustration of legal historians who work in the legal academy, despite the (apparently “whiggish”) historical turn in constitutional scholarship.  History these days seems to be relevant to legal scholarship only in the context of debates over original meaning/intent.  What makes this particularly frustrating for historians is that the quality and quantity of legal history, produced by professionally-trained historians, has increased dramatically in recent years.  The last two decades, in particular, has witnessed the emergence of a bountiful body of scholarship, that is both theoretically and forensically rich, and that engages some of the biggest questions about law: its nature and function, and its relationship to various other macro-institutions such as society, the market, the polity, the state, and democracy.  (For starters, just look at the work by the contributing editors to the legal history section here.)  And yet we still find it difficult to engage our colleagues and convince them of the importance of our work; for many institutions we remain a “luxury.”  Historians have long worried about our declining ability to reach popular audiences.  Apparently, we are losing some colleagues too.

This is where I find Tabatha Abu El-Haj’s recent article heartening.  What struck me immediately about the article was how Abu El-Haj framed it.  In a seven-page introduction she spends two paragraphs on legal historiography; her main target is law and democracy scholarship.  Consciously or not, Abu El-Haj has offered an example of how to smooth the ground between historian and legal scholar.  Translating between disciplines, Elizabeth Mertz has told us, is a project fraught with misunderstanding.  But, perhaps because of her training in a law and society program, Abu El-Haj appears to have both the fluency and willingness to attempt an effective translation.  In this article, for example, she uses “the repertoire of democratic political practices” in the past to expose and undermine two major assumptions of modern law and democracy scholarship. Continue reading "On Becoming Relevant: The Role of Legal History in Legal Scholarship"

Negotiating Globalization’s Influence: The Indian Perspective

The importance of India as a site for activity and study with regard to the legal profession and globalization is underscored by the attention it currently generates in the legal and popular press1 But it also is an area characterized by uncertainty.  In fact, even as I write, there has been an additional development regarding the practice of law by foreign law firms: the Indian Supreme Court issued an interim order on July 4, 2012 that reinforced the uncertainty surrounding the authority for and confidence of global law firms to serve clients with interests in and related to India.  In light of this, I was delighted to learn that the subject had been taken on by Mihaela Papa and David Wilkins, both of Harvard Law School’s Program on the Legal Profession.  Their new article, “Globalization, Lawyers, and India:  Toward a Theoretical Synthesis of Globalization Studies and the Sociology of the Legal Profession,” promises to “draw[] together globalization literature with the scholarship on the sociology of the legal profession . . . [to] provide a new lens through which to analyze economic, political and social transformations occurring in the Indian legal profession.” (P.2)  My interest in the article was piqued not only by the topic, but also because Wilkins, the highly-regarded Professor of Law and chair of Harvard’s Program on the Legal Profession, is spearheading its GLEE project (Globalization, Lawyers, and Emerging Economies), which “investigates the impact of globalization on the corporate legal sector in major emerging economies and the effect of changes in this sector on other parts of the legal order, including legal education and the provision of legal services to underrepresented populations.”  This paper is an early product of GLEE and, as such, reveals promises of the larger study.

The article does not disappoint and offers a thoughtful addition to the growing body of work on globalization and the legal profession.  Papa and Wilkins begin by framing their investigation of India’s legal profession within the literature on globalization, and identify three “social processes commonly identified by globalization scholars in other areas [as] help[ful] to explain the changes currently taking place in the Indian legal profession:  economic globalization, globalization of knowledge, and globalization of governance.” (P.3)  In doing this, they offer a terminology for analysis that reveals the importance both of differentiating and connecting these three core processes. Continue reading "Negotiating Globalization’s Influence: The Indian Perspective"

One Engagement – Moral Theory of Political Reconciliation

Colleen Murphy, A Moral Theory of Political Reconciliation (Cambridge: Cambridge University Press, 2010).

For anyone interested in a critical, practical, and political exploration of reconciliation, Colleen Murphy’s book is a wonderful resource. It is a fast-paced and well-written book that compels the reader to keep going. And, it is useful in the everyday world.

In Canada, over the past thirty years, almost 600 indigenous women and girls have gone missing or have been slain.1 Between 2000 and 2008, there were 153 new cases. Most of the disappearances and deaths occurred in the western provinces in British Columbia, Alberta, Manitoba, and Saskatchewan.2  The majority of these women and girls were mothers. Some were students. Almost half of these cases remain unsolved. Time and time again, these women and girls are described as sex trade workers and addicts as if somehow that designation defines them all or explains them away. What is so disturbing is that their murders and disappearances seem to have become normalized – a part of Canada – but in the background or in the shadows. Continue reading "One Engagement – Moral Theory of Political Reconciliation"

Jotwell Summer Break

Jotwell is taking a short summer break.

Posting will resume on Tuesday, September 4. We will be posting more frequently during the academic year.

Thank you for reading — now tell a friend about Jotwell. And if you are an academic reader, please consider recommending Jotwell to your students.

SCOTUS in Focus: Two Takes on Cameras in the Federal Courts

• Nancy S. Marder, The Conundrum of Cameras in the Courtroom, ___ Ariz. St. L. Rev. ___ (forthcoming 2012), available at SSRN.
• Lisa T. McElroy, Cameras at the Supreme Court: A Rhetorical Analysis, ___ BYU L. Rev. ___ (forthcoming 2012), available at SSRN.

Television cameras in the courtroom probably have been debated since there have been cameras to bring into the courtroom, with periodic spikes in attention around high-profile cases–O.J. Simpson’s criminal trial or Bush v. Gore or this term’s Supreme Court arguments on the Affordable Care Act. In the past two decades, a communications revolution has turned that occasional spike in attention into a constant drumbeat. More attention from more outlets is focused on the federal courts, particularly the Supreme Court. And video is ever-more accessible, as people can watch on a multitude of devices in a multitude of places, and ever-less obtrusive, so courtroom actors can easily be recorded without knowing it.

Yet, as Nancy Marder puts it, “the revolution has been stopped cold at the steps to the U.S. federal courthouse.” And the Justices themselves have erected and manned the barricades–rejecting calls for more open and immediate coverage of oral arguments in the obviously unique ACA cases, fighting Congress over who wields power to decide whether to allow cameras, and even jumping into disputes over cameras in the lower federal courts in high-profile cases. Continue reading "SCOTUS in Focus: Two Takes on Cameras in the Federal Courts"

Expanding Our Vision — and the Law’s Coverage — to Include “Marginal Workers”

A strange tension exists in U.S. labor and employment law.  On one hand, the number of laws granting rights to employees has increased considerably in recent decades.  On the other hand, many have argued that these laws have fallen far short of their expected goals and have failed to adequately protect a significant number of workers.  In Marginal Workers, Ruben Garcia goes further than any previous work in describing the various ways in which these laws fail to protect some of the most vulnerable workers in the country.

Marginal workers are those who “fall through the margins of different laws that are supposed to protect them, but lack the political power to fix the holes in the legislation.”  (p. 4).  This includes, among others, immigrant workers in post-Hoffman Plastics limbo, temporary workers, noncitizens, and a variety of low-wage workers who are covered by statutes (including the FLSA, Title VII, and the NLRA) but often get inadequate protection from them.  This includes, but is not limited to, those who should be covered by the statute, but who have been improperly classified as independent contractors or as exempt from the FLSA or NLRA.  The default “employment at-will” rule means that even at best, employment laws are a “patchwork quilt with some rather large holes.” (p. 6). Continue reading "Expanding Our Vision — and the Law’s Coverage — to Include “Marginal Workers”"

What Do We Want from Open Government – and What the Heck is “Open Government”?

• Harlan Yu & David G. Robinson, The New Ambiguity of “Open Government”, 59 UCLA L. Rev. Disc. 178 (2012).
• Jennifer Shkabatur, Transparency With(out) Accountability: The Effects of the Internet on the Administrative State, 31 Yale L & Pol. Rev. — (forthcoming), available at SSRN.

Jotwell prefers that its contributors “like” one piece of scholarship at a time.  But (a) I have to atone for submitting my contribution late, and (b) the two manuscripts that have caught my fancy most recently are wonderfully complementary and deserve to be attended to jointly.

Literally from Day One, a welcome mantra of the Obama Administration has been “open government,” to which the Administration has variously linked the adjectives, “transparent,” “participatory,” and “collaborative.”  As both conceptualized and practiced, however, the very idea of “open government” is highly ambiguous.  Even its arguably most straightforward aspiration – transparency – is rife with uncertainties.  Two important steps forward in understanding the Obama open government “moment” are The New Ambiguity of “Open Government”, by Princeton doctoral student Harlan Yu and Yale law student David G. Robinson, forthcoming in Discourse, the online journal of the UCLA Law Review, and Transparency With(out) Accountability: The Effects of the Internet on the Administrative State, by Jennifer Shkabatur, an SJD candidate at Harvard Law School, forthcoming in Vol. 31, No. 1, of the Yale Law & Policy Review.  Each is a significant contribution to a much undertheorized domain. Continue reading "What Do We Want from Open Government – and What the Heck is “Open Government”?"

The Mounting Challenge to Assertions About “The Nature of Law”

•  Brian Leiter, The Demarcation Problem in Jurisprudence: A New Case for Skepticism, 32 OJLS 1 (2011).
•  Dennis Patterson, Alexy on Necessity in Law and Morals, 25 Ratio Juris 47 (2012) available at SSRN.
•  Frederick Schauer, On the Nature of the Nature of Law (2011) available at SSRN.

A number of prominent contemporary legal philosophers identify as their central task the search for the necessary features of the nature of law. Joseph Raz writes, “The general theory of law is universal for it consists of claims about the nature of law, and about all legal systems, and about the nature of adjudication, legislation, and legal reasoning, wherever they may be and whatever they might be. Moreover, its claims, if true, are necessarily true.”1. Scott Shapiro’s Legality is an extended treatment of the nature of law: “When asking about the nature of law…we want to know which properties law necessarily possess in virtue of being an instance of law[.]”2.

Along similar lines, Julie Dickson insists that a general theory of law must “consist of propositions about the law which are necessarily true, as opposed to merely contingently, true,” because “only necessarily true propositions about law will be capable of explaining the nature of law.”3. This search for the nature of law is not limited to legal positivists. Anti-positivist Robert Alexy pursues the same project (though contesting their answers): “Thus, for the question, ‘What is the nature of law?’ one may substitute the question “What are the necessary properties of law?”….Essential or necessary properties of law are those properties without which law would not be law.”4.

The most puzzling aspect of this project is not the answers these various theorists produce in the pursuit of their quest but the assumption upon which it hinges: that law has a nature. Prior to embarking on a search for the nature of law one would think that the first order of business is to set forth an argument establishing that law has a nature. Without such an account, it is unclear what is being sought or whether there is something to be found. Despite the apparent necessity to tackle this preliminary question, theorists who pursue this aim have heretofore largely assumed it.5. Continue reading "The Mounting Challenge to Assertions About “The Nature of Law”"

Why We Need a Progressive Account of Violence

James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev., 101 (2012).

It seems fair to say that in current criminal law and criminology discourse, Jim Crow analogies are all the rage. The dialogue, and especially Michelle Alexander’s book, The New Jim Crow, is an important and necessary intervention in the national conversation about crime and punishment. Alexander’s book makes the case that the modern U.S. criminal system operates to impose de jure and de facto second class citizenship on African Americans in a strikingly similar manner to Jim-Crow-era laws. The New Jim Crow has received an enormous amount of publicity and has successfully inserted questions of racial hierarchy into what are often insular debates over dessert, deterrence, and appropriate crime management. As much as the Jim Crow dialogue illuminates often ignored or deliberately down-played racial aspects of the U.S. penal state it, like all analogies, is an imperfect comparison. It therefore has a tendency to obscure other factors important to the understanding and critique of mass incarceration—factors like cultural discourses of violence that transcend race, the relationship between incarceration and class and labor, and the role of criminal law in perpetuating and maintaining neoliberal political and economic structures.

This is where James Forman Jr.’s article comes in. In a move that many of his friends and colleagues viewed as head-scratching, Forman, a staunch critic of the American carceral state, decided to set forth a critique of the Jim Crow critique of mass incarceration. Many progressives have a strong instinct that they should stand by the Jim Crow narrative, especially now that it is gaining so much traction. Despite this, Forman makes the case that understanding the limits of the analogy explains why the racial critique of mass incarceration, which has existed for decades, has not succeeded in radically changing support for tough-on-crime measures, even among many African Americans. Forman also argues that concentrating solely on a reductionist racial picture of the criminal system deflects attention from the many other ways that system reflects and reproduces social inequality. In the article, Forman lists six objections to the analogy, but here I want to concentrate on two larger themes of his paper, antiessentialism and accounting for violence. Continue reading "Why We Need a Progressive Account of Violence"

Structural, not Substantive, Due Process

Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672 (2012).

Great scholarship in American constitutional law ranges from the conceptually original to the historically meticulous.  The most cited articles of all time contain far more of the former than the latter. This year’s scholarship contains a rare piece that is both conceptually groundbreaking and a deep historical dive.  An article of interest to multiple audiences, Nathan Chapman and Michael McConnell’s Due Process as Separation of Powers merits kudos from both conceptualists and historicists.

Chapman and McConnell note that due process, the “oldest phrase and the oldest idea in our Constitution,” has, perversely, become “the most unrecognizable in modern interpretation,” a phrase used to “subvert the separation of powers” by giving courts “a super-legislative power to change rather than enforce and interpret the law.”

The authors demonstrate that Fifth and Fourteenth Amendment due process, when applied by courts to constrain legislative power, had a very specific original meaning lost to both the judiciary and modern readers. This meaning is contrary to recent scholarly conclusions that (1) due process only applies to judicial process, (2) substantive due process enables judicial review of legislative policy choices violating judicial notions of property or liberty, even under proper procedures, and (3) substantive due process is contemplated under the Fourteenth but not the Fifth Amendment. Continue reading "Structural, not Substantive, Due Process"

The Negative Externalities of Claiming Property

Peter S. Menell & Michael J. Meurer, Notice Failure and Notice Externalities, (Boston Univ. School of Law, Public Law Research Paper No. 11-58, 2011), available at SSRN.

In Notice Failure and Notice Externalities, Peter S. Menell and Michael J. Meurer coin a new term—a “notice externality.”  In the process, they do nothing less than turn the conventional story about property rights and externalities on its head and reconceptualize many of the inefficiencies of contemporary intellectual property regimes.

The externality part of the term should be familiar by now, given the extent to which economic thinking has permeated intellectual property discourse.  An externality arises whenever one party’s conduct has consequences for other parties that are not considered—read “internalized”—by the decision maker.  In some of the classic examples, the externalities are negative: the conduct of sending pollution out a smokestack generates negative externalities for neighbors.  In other classic examples, the externalities are positive: the conduct of inventing new technologies generates benefits for all those whose lives are improved by using the technology. Continue reading "The Negative Externalities of Claiming Property"

Going Public before the IPO

Darian M. Ibrahim, The New Exit in Venture Capital, 65 Vand. L. Rev. 1 (2012).

For some employees and investors, Facebook did not make the decision to pursue an initial public offering (IPO) fast enough. So when a former employee of Facebook needed to sell some shares in the company, he approached SecondMarket, which describes itself as “the leading marketplace for alternative investments.” In 2009 Facebook shares began trading on SecondMarket and SharesPost, another leading market for shares in companies that are moving toward an IPO. These new markets – called private secondary markets – are the hottest new development in securities trading.

Although we have much to learn about private secondary markets, the first article out of the gates is well worth reading. In The New Exit in Venture Capital, Darian Ibrahim relies on interviews, trade publications, blog posts, and newspaper stories to study these emerging markets. He focuses most of his attention on the so-called “direct market,” which involves the trading of stock in startup companies, as opposed to the trading of interests in investment funds. Ibrahim aims to contribute to the still vibrant literature on venture capital investing, but his description of direct private secondary markets should have a much broader audience. Continue reading "Going Public before the IPO"

Trust as Contract? Organization? Property!

M. W. Lau, The Economic Structure of Trusts (Oxford University Press, 2011).

This fascinating book stems from the author’s Ph.D. dissertation at the University of London, supervised by Professor (now the Honorable Mr. Justice) David Hayton and Professors James Penner and Paul Matthews.

The book is a response to academic writing from the United States emphasizing the contractarian or organizational basis of trust law.1 As Dr. Lau explains, his book sets out to achieve two purposes: “The first is to introduce and defend a property-based economic account of trusts. … The second is to influence legal scholarship on and developments of trusts” (P. 17). Continue reading "Trust as Contract? Organization? Property!"

New Jotwell Section: Family Law

Today we inaugurate a new Jotwell section on Family Law, edited by Janet Halley, the Royall Professor of Law at Harvard Law School, and Melissa Murray, Professor, U.C. Berkeley School of Law. Together they have recruited a stellar team of Contributing Editors.

The first posting in the Family Law section is A Hug From the State: Recognizing Stillbirths by Melissa Murray.

We intend to continue to add other new sections in the coming months — Torts and Health Law are next, with more to come. Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

A Hug From the State: Recognizing Stillbirths

In the not too distant past, it was taboo for women (and men) to speak openly about miscarriages, infertility, or anything having to do with the delicate business of giving birth.  More recently, however, the social anxiety around these topics has receded.  Many of us now speak openly about the pain of a miscarriage or an unsuccessful round of IVF.  Indeed, some find it cathartic to broadcast their grief to a wider audience, blogging about their experiences or discussing it with friends (broadly defined) on social media.  But it is one thing to enlist friends and social media in the grieving process.  It is quite another thing to involve the state.  Or is it?

That is the question that Carol Sanger takes on in “The Birth of Death”: Stillborn Birth Certificates and the Problem for Law.  In this penetrating and thought-provoking Essay, Sanger takes on the taboo subject of stillbirth—the act of delivering a dead child—and the emergent movement that seeks to enlist law to help the parents of stillborn children deal with their grief and loss.  Specifically, Sanger considers “Missing Angel” legislation—laws that authorize the state to issue parents a birth certificate for a stillborn child.  The whole thing sounds at once macabre and incongruent—issuing a birth certificate for a child that was born dead?  But, as Sanger observes, it makes perfect sense to grieving parents, for whom the standard issue fetal death certificate fails to capture the magnitude and profundity of their loss. Continue reading "A Hug From the State: Recognizing Stillbirths"

Corporate Tax Reform in Theory and in Politics

To find out what is going on with corporate tax reform, read Martin Sullivan. Read his columns, and read his book, Corporate Tax Reform: Taxing Profits in the 21st Century . Read him because he squarely tackles the interaction of theory and politics in the area of tax policy.

Academic theories of legislative process make more sense in context. Daniel Shaviro’s analysis of the 1980’s individual base-broadening, rate-lowering reform package is a case in point.  In the area of corporate tax reform, scholars have worked with the understanding, developed for example by William Eskridge, Philip Frickey and Elizabeth Garrett, that the U.S. legislative process favors the status quo.  Against this backdrop, Jennifer Arlen and Deborah Weiss argue that agency costs further hamper reform because managers favor policies like accelerated depreciation that provide targeted incentives for new corporate investment, even though shareholders prefer policies that also enrich existing investment.  Michael Doran builds on the Arlen and Weiss analysis with a public choice account of heterogeneity of interests among different corporations.  The result, he argues, is an incentive for corporations that disproportionately benefit from a certain tax break, for example the research and development credit, to lobby energetically to keep that tax break rather than supporting more general reform proposals like base-broadening and rate-lowering. Continue reading "Corporate Tax Reform in Theory and in Politics"

The Player of Games

Daithí Mac Síthigh, Legal Games: The Regulation of Content and the Challenge of Casual Gaming, 3 J. Gaming & Virtual Worlds, no. 1 at 3-19 (2011) available at SSRN.

Mainstream coverage of gaming regulation has usually centered on the possible danger of violent games to children, usually accompanied by stills from the latest Grand Theft Auto, Call of Duty, or Mortal Kombat to instil a righteous level of outrage in the public. The underlying message in most of these stories ranges from “something must be done about this” to “ban this filth.” Thankfully, such often uninformed commentary has not been translated into legal scholarship, where the coverage has been more nuanced. With few exceptions, authors dealing with the nascent field of gaming regulation have produced a growing body of work that is both thorough and well-written. A recent addition to the group of scholars interested in games is Daithí Mac Síthigh from the University of East Anglia in the UK, and soon to join the University of Edinburgh.

In Legal Games: The Regulation of Content and the Challenge of Casual Gaming, Mac Síthigh tackles both the public perception of games regulation in the UK, and the actual practice of such regulation. He comments that most legal studies into games fall into three categories: the study of game production and development, studies into the debate on the effects of video game violence, and more rarely discussions about copyright. Mac Síthigh accurately comments that some of the higher level discussions in gaming studies, for example, the literature that studies the ludic nature of the gaming experience, has been somewhat left out of legal and regulatory commentary in general. So, Mac Síthigh’s article is in part a response against this trend. Continue reading "The Player of Games"

Is Alabama the New California? Civil Rights History through a Multiracial Lens

Recently, thousands of people participated in the forty-seventh anniversary of the historic 1965 marches from Selma to Montgomery.  Now, as in 1965, voting rights were front and center: marchers protested against the recent passage of restrictive voting laws in many states, arguing that such provisions disproportionately disenfranchise voters of color.  This was familiar ground for civil rights organizers in the South.  This year, however, there was a new theme: immigrant rights.  Those marching joined in opposition to Alabama’s H.B. 56, which targets undocumented immigrants in the state.  The tone, as recounted by Trymaine Lee for the Huffington Post, was one of solidarity: marchers commented on the shared struggle and shared aims of those of African, Asian and Latin American descent, of citizens and non-citizens.

Alabama is in a new phase of its own civil rights history, but this multiracial rights frontier itself is not new.  The deep South now grapples with issues of inter-group coalition building that were at the forefront in California more than a half-century ago.  In his impressive new book, The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978, Mark Brilliant demonstrates that California experienced the challenges and rewards of “multiracial civil rights making” starting in the 1940s. (p. 12.)  He chronicles the post-World War II struggles for civil rights of African Americans, Asian Americans and Mexican Americans, as they attempted to dismantle segregation and legislate antidiscrimination.  In its diverse population, California was not an outlier in the history of civil rights but rather the vanguard. Continue reading "Is Alabama the New California? Civil Rights History through a Multiracial Lens"

Mechanisms of Discrimination

Everyday Injustice is an empirical study of Latino and Latina attorneys.  The book examines the lawyers’ cultural, socioeconomic and family backgrounds: it compares and contrasts their law school experiences, socialization into the profession, career paths and ideological and professional commitments with that of their non-Latino peers; it explores the intersection of racial, class, gender and professional identities; and it documents the political leanings, activities and political values of Latino and Latina attorneys. Everyday Justice investigates shared perceptions and experiences of negative stereotyping encountered by Latino and Latina attorneys as well as their sense of marginalization and professional isolation.  It is a rich and revealing account of the professional lives of minority lawyers striving to overcome discrimination in a profession purporting to adhere to the highest standards of equality.

The book represents an important addition to the scholarship of the legal profession.  As the profession continues to struggle, notwithstanding its increased diversity, with persistent under-representation of women and minority lawyers within its elite ranks, growing scholarly attention has been given to the experiences of gender, racial and class minorities.  To date, however, insufficient attention has been paid to the experiences of the fastest growing ethnic minority group in the United States, Latinos and Latinas.  Moreover, following recent US Supreme Court decisions that have eroded affirmative action policies, placed procedural limitations on Title VII litigation, and restricted avenues for recovery, some commentators have expressed concern that the Court’s emphasis on the impact of affirmative action on African-Americans and Caucasians, its focus on intentional past discrimination and its inattention to Latinos, and implicit discrimination might cause it to prematurely strike down affirmative action policies altogether.  Exploring in great detail the professional lives of Latino lawyers, including their discriminatory experiences, Everyday Injustice is especially important and timely and provides a rich and detailed context against which the wisdom of affirmative action policies as well as other diversity measures may be evaluated on an informed basis. Continue reading "Mechanisms of Discrimination"

Ethical Lawyering in the Clientless World of Class Actions in Canada

It is surprising what you can learn by watching the next generation coming of age. In this way, lawyers in the United States can gain much from following the experiences of the Canadian legal community as it climbs the steep learning curve needed to formulate the parameters and protocols for complex litigation.

Civil litigation and the structure of the legal profession in Canada do not pretend to challenge American exceptionalism. There are important differences between the two legal systems. But they have enough in common that academics and others in the U.S. can gain useful insight into class actions practice by hearing how Canadians are currently struggling to meet the kinds of challenges that have long been the subject of debate in the U.S. In this fine article, Jasminka Kalajdzic explores a new subject, at least for Canadian lawyers: the special ethical concerns that arise for counsel in class actions. Continue reading "Ethical Lawyering in the Clientless World of Class Actions in Canada"

Dis-torting Discrimination Law

Sandra F. Sperino, Discrimination Statutes, The Common Law, and Proximate Cause, 2013 U. Illinois L. Rev. 1 (forthcoming 2013) available at SSRN.

As courts increasingly import principles from common law torts into discrimination cases, Sandra Sperino’s new article, Discrimination Statutes, The Common Law, and Proximate Cause, is a welcome addition to a growing body of work pushing back against this trend. Her focus is on the Supreme Court’s recent forays into proximate cause in connection with federal employment statutes. Laying out the problems of the proximate cause doctrine and the features of statutory protections from employment discrimination, Sperino demonstrates that importing proximate cause is undesirable and an obstacle to enforcing Congress’ careful balance in enacting these statutes.

The article begins by describing what proximate cause is. Although the theoretical underpinnings of proximate cause are notoriously muddled, Sperino demonstrates that in a variety of ways, the doctrine appears to limit the reach of particular torts, depending on the type of tort at issue. As she notes, proximate cause is applied primarily in negligence actions in situations with multiple physical causes, where a potential plaintiff is far removed from the conduct of the defendant, or as a way to define the policy goals of the underlying cause of action. For intentional torts, proximate cause plays a much more limited role, in part because the actor’s state of mind makes the actor more blameworthy, and we are willing to extend liability farther. Continue reading "Dis-torting Discrimination Law"

New Section Editors

I’m pleased to announce that three distinguished scholars have agreed to become Jotwell Section Editors.

  • Paul Horwitz of the University of Alabama School of Law has stepped up from Contributing Editor to Section Editor in the Constitutional Law section.
  • Eli Wald of the University of Denver, Sturm College of Law, has joined the Legal Profession section as a Section Editor, replacing Tanina Rostain, who continues as a Contributing Editor.
  • Leigh Osofsky of the University of Miami School of Law has joined the Tax section, replacing George Mundstock.

Serial Litigation in Administrative Law: What Can Repeat Cases Tell Us About Judicial Review?

Emily Hammond Meazell, Deference and Dialogue in Administrative Law, 111 Colum. L. Rev. 1722 (2011).

In Deference and Dialogue in Administrative Law, Emily Meazell takes up the topic of serial administrative law litigation.  These repeated rounds of challenges and remands, which Meazell finds are particularly prevalent in contexts of risk regulation, provide a new lens on court-agency relationships.  Meazell closely reviews several instances of such litigation, spanning topics as diverse as endangered species, potential workplace carcinogens, and financial qualifications of nuclear plant operators.  She argues that such close examination reveals a process of dialogue, with agencies ultimately (if not immediately) responding to judicial concerns and courts in turn acknowledging administrative responses.

According to Meazell, serial litigation merits attention because it demonstrates that judicial review may not function as we think it does.  In particular, Meazell flags two features of serial litigation that deserve particular note.  The first is that agencies frequently considered new information and evidence on remand, even though that might entail greater effort and new rounds of notice and comment.  She argues that serial litigation thus can provide an opportunity for agencies to refine their analyses and gain greater expertise over time.   The second is that, despite their initial sometimes stern rejections of agency determinations, courts often ultimately took quite a deferential stance. From this Meazell concludes that, when viewed over the long lifetime of some of this litigation, hard look review resembles more the soft look of constitutional rationality review than the more searching scrutiny administrative law cases and scholarship claim it to be. Continue reading "Serial Litigation in Administrative Law: What Can Repeat Cases Tell Us About Judicial Review?"

Judging Guilt by the Content of their Character

Janice Nadler & Mary-Hunter McDonnell, Moral Character, Motive, and the Psychology of Blame, 97 Cornell L. Rev. 255 (2012).

The law, Stanley Fish has written, “wishes to have a formal existence.” 1. By formal, Fish meant self-contained, autonomous, and self-declaring. In other words, the law wants to deny license to the interpreters of the law to seek recourse outside the law, to the tenets of philosophy and psychology, and to the facts of social scientific research. Of course, the law does not, because it cannot, succeed in preventing lawyers, or those from other disciplines, from rendering judgments about psychological processes or behavior. Tort law relies on economics and economics relies either on moral philosophy or psychology to ground its understanding of human behavior. The same is true for criminal law, and it is especially true in insanity cases. What the law wants – if it is acceptable to speak of the law without subjects but with intent – is to control the production of legal meaning.

Janice Nadler and Mary Hunter-McDonnell have written a provocative and insightful essay that explores the limits of the law’s formalism by focusing on how non-lawyers actually perceive guilt and assign blame. They are less interested in saying that certain people, contrary to the law’s instructions in criminal trials, combine assessments of guilt with perceptions of bad character. Rather, they say that to be in a position of judgment over another requires that one’s mental processes leap over the law’s formalism and merge guilt with character assessment. Indeed, they go further and suggest that any character information that jurors have which they perceive to be negative influences the corresponding interpretation of the action under review. If these studies can be replicated over time (and Nadler and McDonnell cite other literature to this effect), then policymakers need to address the implications of this study. Continue reading "Judging Guilt by the Content of their Character"

Federalism and Child Labor Revisited

Logan Everett Sawyer III, Creating Hammer v. Dagenhart, Wm. & Mary Bill Rts. J. (forthcoming) available at SSRN.

The Supreme Court’s decision in Hammer v. Dagenhart, 247 U.S. 251 (1918) is one of the most reviled judicial rulings in American history. The ruling struck down a federal law banning the interstate transportation of goods produced in factories employing child labor, holding that it exceeded Congress’ authority under the Commerce Clause. Right from the start, critics denounced Hammer as an unprincipled decision with awful real-world consequences, an attempt to legislate “laissez-faire” ideology form the bench. To this day, the case is often invoked to discredit efforts to enforce limits on the commerce power. Several critics have recently used analogies to Hammer to attack the case challenging the individual health insurance purchase mandate.

Logan Sawyer’s excellent article, Creating Hammer v. Dagenhart, is an important challenge to the conventional wisdom about Hammer. Sawyer questions the long-dominant view that the ruling lacked a basis in precedent, and demonstrates convincingly that it was not the product of “laissez-faire” thinking. Continue reading "Federalism and Child Labor Revisited"

The Same Old Song?

Last semester, I taught Comparative Intellectual Property Law in London, and I enjoyed the opportunity to think about different ways of structuring IP regimes. One of the more interesting differences is the use of jury trials in U.S.intellectual property litigation. Other countries are much less likely to have juries pass on such questions as the obviousness of an invention, the confusion created by different trademarks, or the similarity of two copyrighted works.

Whether juries are capable of making these determinations is ultimately an empirical question, and it is one that Jamie Lund from St. Mary’s University School of Law has sought to answer. Her recently posted paper on the “lay listener” test in music composition copyright cases suggests that our trust in juries may be poorly placed. I like her article, An Empirical Examination of the Lay Listener Test in Music Composition Copyright Infringement, lots. Continue reading "The Same Old Song?"

Equality vs. Fairness

Nina W. Chernoff, Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, Hastings L.J. (forthcoming 2012), available on SSRN.

Americans know that there is something wrong with a guilty verdict rendered by “an all-white jury.”  But translating that something into a constitutional issue, never mind a constitutional right, is not straightforward. Indeed, it has become downright complicated and, as Nina Chernoff argues, totally wrong.

Often, the first impulse when faced with the “all white jury” problem is to conceptualize the problem as one of equality.  It seems discriminatory–unequal–when the person on trial is a member of a racial minority and is not “represented” on the jury.  And indeed, this may violate the Equal Protection Clause of the Fourteenth Amendment.  But not necessarily.  The Equal Protection Clause, as presently construed in American constitutional doctrine, generally requires discriminatory intent.  On the other hand, persons accused of crimes are afforded rights in the Bill of Rights that are not grounded in equality, but in fairness. The Framers of the Constitution, most of whom had committed the crime of treason during the Revolutionary War, were quite invested in fairness of process. For example, the Sixth Amendment guaranteeing an accused person assistance of counsel, confrontation of the witnesses against one, and a speedy and public trial.  The Sixth Amendment also guarantees an “impartial jury.”  In common parlance, this is a “jury one one’s peers.”  In constitutional doctrine, it requires that the jury members be “drawn from a fair cross-section of the community.” Continue reading "Equality vs. Fairness"

A Radical Perspective on the Mundane

Annelise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (University of Chicago Press, 2011).

What if it turned out that much of the crucial work that law does in the world operates in a register that is not captured by most legal scholarship? What makes legal reasoning and legal technique so resilient and so abidingly “legitimate,” even while other forms of expert knowledge, like those underpinning government fiscal policy, quantitative risk modeling, and the rational actor model unravel (as they did in the midst of the recent financial crisis)? How much of the work of building and maintaining global governance is accomplished under the radar, by the routinized practices of law – and to what extent can grand political ambition leverage these underappreciated tools in the service of its own ends? These are the challenging questions that Annelise Riles poses in this rich and elegantly-written book. For those not familiar with her argument, it merits serious attention.

The focus of Riles’s book is contracts for collateral. Riles spent years conducting field work and follow-up studies in the Japanese derivatives markets, tracking daily back office routines underlying collateral contracts. Riles argues that the legal construction of collateral is interesting for two reasons. The first is the curious fact that at the height of the recent financial crisis, when the great conceptual edifices of international finance shook, collateral – the very notion of it, its enforceability and its legitimacy – was never seriously questioned. In her words, “collateral seems to have survived the tectonic shifts in market ideologies of the last few years with its reputation intact when so much else of what once was unquestionable dogma – free markets, self-regulation, the innate brilliance and rationality of derivatives traders – now seems like a quaint mythology from a strange other world” (page 1). The book is partly devoted to trying to understand just what it is about collateral contracts that makes them so robust. She suggests, provocatively, that the wonder is not that the financial system broke down in fall 2008; the wonder is that it ever operated at all, across time zones, across differing institutional processes and national contexts, across technical glitches, and across the logistical complexities of global markets. The book is full of surprising and counterintuitive examples of the important role that legal technique plays in that system. Continue reading "A Radical Perspective on the Mundane"

For Love or Money? Legal Treatment of Golddiggers

Ruth Sarah Lee, A Legal Analysis of Romantic Gifts, Harvard John M. Olin Fellow’s Discussion Paper No. 43 (2012).

Under what circumstances should courts permit a donor to undo what appears to be a completed gift – particularly when the gift is embedded in a real or imagined romantic relationship?  After surveying existing law, Ruth Sarah Lee concludes that traditional doctrine does not adequately deter donees from subtly misleading donors into making generous gifts that the donor would never make if the donee had been honest about his or her intentions.  Although the article’s focus is on a subspecies of lifetime gifts, its conclusions suggest possible application to testamentary gifts, and to how courts might approach doctrines of undue influence and tortious interference.

Although the conventional wisdom is that gifts are gestures of altruism, love, or kindness, that conventional wisdom does little to explain why a donor makes particular gifts.  Much recent scholarship recognizes that gift-giving helps build relationships, in part by enhancing trust between donor and donee.  Gifts, particularly gifts that require the donor to learn about the donee’s individual preferences, or gifts that are particularly expensive, perform an important signaling function:  they indicate to the donee that the donor has an interest in a long-term relationship.  As Ms. Lee points out, “[i]f the donor expected only a short-term relationship with the donee, he would not expect enough in return, in terms of affection or trust, for the gift to be worth its cost.”   If gifts were freely revocable, they would lose that signaling advantage, because the donor would not be making the same sort of commitment to a relationship with the donee.  Nevertheless, as Ms. Lee indicates, engagement gifts are routinely treated as revocable at the donor’s behest if the marriage does not occur.  Courts invoke either the theory that the gift was conditioned on occurrence of the marriage, or that the theory that the gift was given only as consideration for the marriage. Continue reading "For Love or Money? Legal Treatment of Golddiggers"

Summer Publishing Schedule — and New Sections Coming Soon

Jotwell moves to its summer publishing schedule this week. Reviews will post on Mondays and Thursdays during June, July, and August (with a short annual summer break at the end of August).

We’ll return to a more frequent publication schedule when the new academic year begins in September.

In the next few months we’ll also be adding three new sections: Family Law, Health Law, and Torts, with still more to follow in the future.

Responsive Regulation and Large Business Tax Compliance

Leigh Osofsky, Getting Realistic about Responsive Tax Administration, 66 Tax L. Rev. __ (forthcoming 2012) available at SSRN.

Leigh Osofsky’s paper, Getting Realistic about Responsive Tax Administration, studies an important feature of tax collections procedure, the IRS’s Compliance Assurance Process (CAP). CAP is a program—piloted in 2005 and extended to all large business taxpayers in 2011—by which the Service reviews the compliance of large business taxpayers prior to the filing of a tax return. The goal here is to resolve all tax positions before the return is filed, and to thereby move from a post-return filing audit system to a pre-filing cooperative conversation between taxpayer and Service. According to Osofsky, supporters tout several supposed benefits of CAP: it reduces IRS resource spending on large businesses, letting the IRS focus its energies on other areas; it helps taxpayers minimize uncertainty and hence compliance costs; it provides the Service with real-time data on compliance issues; it may encourage strong tax compliance norms; and it discourages impermissible tax planning by offering incentives for choosing compliance. Osofsky doesn’t think current empirical evidence is strong enough to allow us to rely on this story. She presents an alternative story: Increased resource wastage by taxpayers resulting from insufficient scrutiny and revenue losses to the government that offset IRS cost savings may mean that CAP is not as appealing as its supporters claim.

As an investigation of CAP, a little-known tax administration procedure for dealing with large business taxpayers, Getting Realistic is already an interesting and timely piece. However, the paper’s true uniqueness lies in its evaluation of CAP in the broader theoretical context of “responsive regulation” and “responsive tax administration” approaches. Responsive regulation is broadly used to denote approaches emphasizing a shift away from traditional, top-down regulation towards more participatory, bottom-up regulation. Osofsky describes its central tenets as including a notion that regulators should use persuasion to obtain compliance, an emphasis on procedural justice to encourage more compliance, and a notion that punishment should only be meted out only after cooperation hasn’t worked. In the tax administration context, the theory emphasizes the importance of understanding diverse taxpayer motivations and of trust building between taxpayers and Service, rather than traditional audit-style penalties. It also focuses on reciprocity and service as ways to increase compliance. Continue reading "Responsive Regulation and Large Business Tax Compliance"

Crime in Suriname

The November 2011 issue of the Law and History Review is devoted to an illuminating symposium on new directions in the study of slavery, edited by Rebecca Scott.  The symposium includes an amazing article by Natalie Davis.  Since this is a blog devoted to enthusiasms, indulge me as I indulge myself.

I am a historian today in large part because of Natalie Zemon Davis.  Back 44 years ago, as an undergraduate at Carleton College, I had just decided that I would try to be a music major because I had decided, in my naiveté, that historians were boring people.  And then I was talked into going to hear a visiting speaker — a Professor Davis from Toronto — who made sixteenth century strikes in Lyons sound so fascinating and who, unlike anyone I had heard to that point, took her audience into the process of thinking reflexively about history. I was hooked.  I changed my major. Continue reading "Crime in Suriname"

Plausibility Pleading and Employment Discrimination

Charles A. Sullivan, Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011), available at SSRN

In a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons.  As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal?  Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.

But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime?  Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read.  It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena.  Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective. Continue reading "Plausibility Pleading and Employment Discrimination"

A Tax Scholar’s Take on Legal Education Reform

Bradley T. Borden & Robert J. Rhee, The Law School Firm, 63 S.C. L.Rev. 1 (2011).

Students are graduating from law school with unprecedented amounts of debt and are confronting an uncertain job market. Editorials in the New York Times condemn law schools for failing to teach lawyering. The 2007 Carnegie Report calls for law schools to increase skills and professionalism training so that law school graduates can be better prepared for practice. And the ABA is considering revisions to the law school accreditation standards that would increase the emphasis on what students learn, rather than on what we teach.

By now, we are all familiar with the many criticisms of legal education. Given this backdrop, I want to highlight a tax academic’s scholarship, not on tax law, but rather on the broader topic of legal education reform. Brad Borden, a prolific scholar in the field of partnership and real estate taxation, is the co-author (together with Robert Rhee) of The Law School Firm. The article suggests an alternate model for legal education that could better connect law schools with law practice. Continue reading "A Tax Scholar’s Take on Legal Education Reform"

Using the NLRA to Nip Anticipatory Retaliation in the Bud

Michael C. Duff, New Nip in the Bud:  Does the Obama Board’s Preemptive Strike Doctrine Enhance Tactical Employment Law Strategies?, (forthcoming Employee Rights and Employment Policy Journal), available at SSRN.

I’m still fascinated by employment retaliation cases.  Not so much traditional labor law.  I’ve generally lost interest.  But Michael C. Duff’s forthcoming essay on the possible implications of the National Labor Relations Board’s decision in Parexel International serves as a reminder to me (and others) that the NLRA might still have some role to play in addressing retaliation even in non-union workplaces.

Parexel involved an employee who claimed she was fired for complaining about what she believed was employer favoritism on the basis of nationality.  Her complaint was internal, the workplace was non-union, and she had not yet mentioned her concerns about favoritism to her co-workers, let alone sought to rally their support.  These facts take the case outside the range of the typical charge of interfering with the right to engage in concerted activities.  Moreover, as Duff chronicles, existing Board precedent was only somewhat helpful to the employee’s claim that she had been fired for exercising her right to engage in protected concerted activity.  Yet, the Board found the employer had violated by Section 8(a)(1) of the NLRA by seeking to prevent protected concerted activity.  In other words, the employer violated the Act by trying to nip concerted activity in the bud. Continue reading "Using the NLRA to Nip Anticipatory Retaliation in the Bud"

Dueling Visions of the Social Security Disability Adjudicatory System

The Social Security Administration’s administrative appeals system is touted as one of largest administrative judicial systems in the world.  No one claims it is one of the best.  Professor Richard Pierce, writing in the Cato Institute’s Regulation magazine, proclaims that it is seriously broken, and he has suggestions for how to fix it.  One might say radical suggestions.  Dubin and Rains, writing an Issue Brief for the American Constitution Society, take issue with Pierce, rebutting his assertions and defending the basic system as it is, warts and all.  One might believe that publications of the Cato Institute and the American Constitution Society would be hopelessly biased, and of course they do represent different views of the American polity, but to read these two pieces, whatever your political inclinations, will inform you about one of the most important issues in administrative law – how to deal with a mass administrative justice system that seems to be running amok.

To establish that the system is broken, Pierce provides statistics on the increase in disability determinations, the total cost involved in paying for disabled workers, and the role that pain and other non-objective causes of disability play in the increase in disability findings.  Pierce’s theme is that the use of administrative law judges and formal adjudication to re-decide what professionals determined on the basis of paper records is responsible for the breakdown, because their use is needlessly inefficient, results in non-uniform determinations, is skewed in favor of granting benefits, and is unconstitutional to boot.  Why use formal hearing adjudication for what is basically a medical determination?  Pierce suggests that the justification is to allow ALJs to assess the credibility of the claimants on the basis of their demeanor, but he then cites to an important law review article, Olin Wellborn, Demeanor, 76 Cornell L. Rev. 1075 (1991), that concludes that empirical evidence suggests that one cannot determine truthfulness (or falsity) on the basis of demeanor.  Ipso Facto: we don’t need formal adjudications for disability determinations.  The fact that there are wide disparities between ALJs in the outcomes of cases suggests that the hearings are not accurate determinations of the truth.  Moreover, under the current system, the claimant, usually represented by counsel, appears before an ALJ who, according to judicial decisions, is supposed to aid the claimant in making his case, but there is no one to represent the “other side.”  This hopelessly skews the system.  Finally, Pierce argues from the recent case of Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S.Ct. 3138 (2010) that having ALJs decide these cases is unconstitutional because they can only be removed for cause by persons who also can only be removed for cause, violating the prohibition announced in that case on limiting the President’s ability to remove an officer by creating a double for-cause removal system.  Although he provides several possible responses to the problem, his apparently preferred suggestion is simply to eliminate the ALJ review altogether, using the funds saved to review the continued eligibility of current beneficiaries. Continue reading "Dueling Visions of the Social Security Disability Adjudicatory System"

Rationalizing Heuristics

Mark Kelman, The Heuristics Debate (Oxford 2011).

Many readers are aware of the field of law and behavioral economics, which adopts insights from cognitive psychology to examine and critique prescriptions of rational choice theory for law and policy.  For those seeking a wider understanding of the background, cognitive psychology scholarship has an excellent resource in Professor Mark Kelman’s new book.  As its title suggests, the book synthesizes academic research on the use of heuristics in individual decision making.  Here, I summarize the book, putting out tantalizing teasers to encourage you to read this important volume as well laying out some of its implications for jurisprudence and legal policy.

In addition to the book, I recommend the Stanford Law School symposium devoted to Professor Kelman’s book that you can watch on YouTube after a judicious search of “heuristics debate Stanford.”  But it would be an error to take a short cut and not read the book as well. Continue reading "Rationalizing Heuristics"

The Pretense of Necessity in Constitutional Theory

Andrew B. Coan, The Irrelevance of Writtenness in Constitutional Interpretation, 158 U. Pa. L. Rev. 1025 (2010).

Good legal advocacy often involves characterizing hard cases as if they were easy, and describing indeterminate precedents or statutory provisions so as to imply that they clearly point in the direction of the advocate’s preferred outcome. And because the great majority of normative or prescriptive legal scholarship is committed by individuals trained and proficient as legal advocates, much of the scholarly output of the legal academy shares the same characteristic. Outcomes that are chosen are claimed to be compelled, and prescriptions that are desired are treated as inevitable. And because advocates whose favored outcomes rest on debated moral or political premises are reluctant to acknowledge the contested nature of the assumptions that drive their outcomes, it is common to see outcomes that are thought to be normatively desirable couched in the language of inevitability, and outcomes thought to be normatively undesirable described as impossible or simply logically flawed.

These pathologies are nowhere more apparent than in the domain of normative constitutional theory, where normative arguments and premises are frequently concealed in the language of linguistic, legal, or institutional necessity. A useful corrective has been provided by Andrew Coan, who attempts, with considerable success, to show that masking morally and politically normative theories of constitutional interpretation in the supposed nature of language itself, or in the inescapable implications of having a written constitution, is largely flawed. Continue reading "The Pretense of Necessity in Constitutional Theory"

What’s in a Name? The Value of That Which We Call Attribution

Christopher Jon Sprigman, Christopher Buccafusco, & Zachary Burns, Valuing Attribution and Publication in Intellectual Property (Va L. & Econ. Rev Research Paper No. 2012-02), available at SSRN.

We all like to get credit where credit is due, but how much is it really worth to us? In another installment of their provocative series of IP experiments, Sprigman and Buccafusco team up with Burns to test that question specifically in the context of online photography.

The setup is similar to their past papers – subjects are given the opportunity to sell their chance at winning a prize in a creativity contest. The amount they are willing to sell for stands as a proxy for how much they think their IP might be worth. In the past, these experiments demonstrated a tendency for those who owned IP to fall prey to an “endowment effect” and those who created the IP to a “creativity effect,” both of which artificially inflated subjects’ perceptions of the IP’s value, thus leading to market inefficiencies and higher transaction costs. Sprigman and Buccafusco then argued that this differential supports the use of liability rules over property rules for IP, as liability rules tend to mitigate the costs incurred from such irrational holdouts. Continue reading "What’s in a Name? The Value of That Which We Call Attribution"

Police Discretion? It’s the Department, Stupid.

Nirej Sekhon, Redistributive Policing, 101 J. Crim. L. & Criminol. 1171 (2012).

For observers of the police, an arrest is a black hole of decision-making.  I don’t mean the official reason for an arrest, since a legal basis can almost always be found in the vast criminal codes of most American jurisdictions.  Rather, the mystery lies in the “real” reason for the arrest, this particular exercise of police discretion.  Why this person, and not that one?  Why an arrest, rather than a citation, a warning, or ignoring the problem?  Why arrest on this street corner, and not another one?  Even if you could interview the arresting officer, it’s unlikely you’d get the full story.  Good policing usually involves a mix of training, street smarts, and experienced-based hunches.  Unsurprisingly, defendants often challenge the bases of these choices.  Those police discretion cases that have been decided by the Supreme Court are striking in two respects.  First, the Court has decided to curb police discretion only in the broadest sense; if any substantive law permits arrest, so too does the Fourth Amendment.  Second, as Nirej Sekhon points out in his article Redistributive Policing, the Court has focused nearly exclusively on the individual officer.  Yet it is police departments, which mandate policies and manage their rank and file, that deserve equal attention and, when warranted, blame.

The role of police departments in shaping arrest decisions is considerable.  While top brass can’t micromanage a cop’s split second judgment on the beat, police administrators can set priorities and dictate changes that have enormous practical consequences.  A familiar example is the implementation of quality of life policing in New York City in the early 1990s.  With William Bratton newly installed as the head of the New York City Transit Police, Transit cops tackled the rampant crime and disorder of the city’s subways with a radically different approach.  Transit cops–and later those in the NYPD–were directed to enforce misdemeanor laws that they had previously dismissed as minor, such as public urination, fare evasion, and public drinking.  To hear the NYPD tell it, this was the beginning of the city’s Cinderella story that led to a dramatic crime drop and transformed grimy dens of vice like Times Square into tourist destinations worthy of Disneyland. Continue reading "Police Discretion? It’s the Department, Stupid."

No Conflict About this Non-Essentialist Reading

Karen Knop, Ralf Michaels and Annelise Riles, From Multiculturalism to Technique:  Feminism, Culture and the Conflict of Laws Style, 64 Stan. L. Rev. 589  (2012).

This engaging article is motivated by the complexity of framing (forget resolving) concepts of culture, by concerns that at least some feminists have become bogged down in their efforts to theorize veiling, clitoridectomy, and polygamy, among myriad other issues, and by a commitment to reasoning from law.  In addition, deep into the piece, the authors explicitly state that they chose the direction of the piece in part to highlight that feminists tend to prioritize culture and leave unaddressed the role of economics in constructing tensions, identities, and concerns.  Even if the article wasn’t so nicely written, even if it didn’t hold hints of something very interesting and hopeful, I would have been captivated by these motivations.

The authors drive the piece in surprising directions.  Part I outlines feminism’s engagement with culture as concept.  Part II situates a specific dispute (although in stylized form) that gives rise to a “clash” of cultures.  Part III illustrates how the technique of conflict of laws assists in reasoning through the particular dispute.  Part IV addresses possible objections and in Part V the authors argue that the approach delineated provides an intellectual style that might be adopted by feminists or cultural theorists.

Four reasons to read the piece… Continue reading "No Conflict About this Non-Essentialist Reading"

Making the Case for Soft Law

Chris Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century (Cambridge University Press 2012).

Every once in a while I read something and say to myself “this one’s a keeper” in the sense that it goes to the shelf to be drawn on again as an important source of knowledge.  This book earned that status early in the read and it earned it again and again as the read went on.  Indeed, I may be this book’s ideal reader for the very reason that I’m a domestic business law academic.  To be sure, the book follows from and addresses a number of international law literatures and so addresses itself in the first instance to the international legal cohort, both to international law writ large and the group’s business and financial subset.  But the learning curve is much steeper for me than for those primary addressees.  Here we find the whole cast of international financial characters–bankers, cops, securities and insurance regulators, auditors, politicians, bureaucrats, technocrats, and their international and domestic organizations–all carefully and neatly laid out with their histories, structures, and outputs juxtaposed and categorized.  My revelation lay not in the fact that I’d never heard of them (although I must admit that one or two were new to me), but in the fact that my institutional knowledge was full of holes, particularly as regards the book’s comparison to other, treaty-based international organizations.

When I picked up the book I wrote down three general observations, touchstone points to assist in evaluation.  They are:

  1. Globalization implies downward regulatory pressure.
  2. Soft law will always disappoint you.
  3. Reputational sanctions are unreliable.

First, globalization and downward regulatory pressure.  More particularly, what’s the interface between the book’s account and regulatory competition–race to the top, race to the bottom, law as product, or whatever you want to call it?  In fact, there’s not much in the book about downward competitive pressure.  It’s more a background factor that pops up on the screen when pertinent.  Even so, I think it’s an important part of what the book is about.  I think back fifteen years or so to a discourse that posed international regulatory competition as against international regulatory co-ordination. The competition side of the binary was heavily theorized where the co-ordination side was not.  The competition side drew on economic theory going back to Tiebout and had negative things to say about co-ordination, which it cast as rent seeking.  There wasn’t a whole lot on the coordination side.  Since then international lawyers have been slowly filling in the picture.  This is where I locate the book.  For me it fills in the empty set with an exhaustive description of the international co-ordinative effort.  Theory can now start over. Continue reading "Making the Case for Soft Law"

Adopting a “Child-Centric” Model of Paternity for Nonmarital Children

Camille M. Davidson, Mother’s Baby, Father’s Maybe!– Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father? 22 Colum. J. Gender & L. 531 (2011), available at SSRN.

One of the most important and interesting conversations among inheritance law scholars has been the role genetic connection should play in establishing parentage and rendering a nonmarital child eligible to inherit from her father.  The advent of easy and reliable genetic testing has crystallized the issue and focused scholars on which paradigm we should adopt now that we no longer need “surrogate” rules in intestacy statutes, e.g., acknowledgement by a putative nonmarital father, to help establish whether a child is likely that man’s child.   There is a spectrum in terms of potential paradigms, running from a purely genetic model at one end where a DNA test establishing paternity would make a nonmarital child eligible to inherit even if she had no relationship with her father to a purely functional approach where the father’s behavior and intent would be the linchpin of whether the child is eligible to inherit, regardless of her genetic connection.  I would characterize the former  model as a “child-centric” model where the interests of the nonmarital child trump that of the father and his other marital children since the nonmarital child does not have to rely on the father to take any affirmative action like acknowledgement in order for the child to be eligible to inherit.

In her recent article Mother’s Baby, Father’s Maybe!-Intestate Succession: When Should a Child Born Out of Wedlock Have a Right to Inherit from or Through His or Her Biological Father?, Camille Davidson argues for the adoption of such a child-centric model of establishing paternity in the area of inheritance law. She highlights some of the historical antecedents of our current patchwork of state laws on defining paternity.  Davidson also adopts a comparative lens in evaluating how states should embrace the genetic connection between a nonmarital child and her father as dispositive of not only of paternity but of her eligibility to inherit from him.  In so doing, Davidson makes a compelling argument for this approach and adds an important voice to the academic conversation in this area of inheritance law. Continue reading "Adopting a “Child-Centric” Model of Paternity for Nonmarital Children"

The Jim Crow Foundations of Agricultural Governance

Kimberley S. Johnson, Racial Orders, Congress, and the Agricultural Welfare State, 1865-1940, 25 Studies in American Political Development 143 (Oct. 2011).

Kimberley S. Johnson’s recent article, “Racial Orders, Congress, and the Agricultural Welfare State, 1865-1940,” is part of a valuable turn evident in recent scholarship on governance in the twentieth century. Bringing together politics and race to understand agricultural policies and institutions, Johnson asks, “[w]hen does race matter; and how does race matter when thinking about the shaping of the American state?” (P. 144) The answer? Race has shaped agricultural policy in some surprising and not-so-surprising ways.

In her study of the “agricultural welfare state,” Johnson examines the shifting ways in which the federal government provided farmers with services and subsidies in the decades following the Civil War. Responding to scholarship centered on interest group relations and partisan politics, Johnson stresses the importance of considering the political machinations involved in agricultural policy in the specific historical context in which these programs were designed and implemented. She describes in detail the numerous agricultural programs that came out of Congress in the years before the New Deal, and examines how their design and implementation occurred against a backdrop of legalized white supremacy in the rural South. The segregated nature of Southern agriculture combined with the power of Southern Democrats in Congress meant that national agricultural programs reflected the assumptions and preferences of powerful southern interests in maintaining racial hierarchies and allowed local authorities significant discretion in the distribution of assistance. Although the federal government consistently acknowledged its role in protecting farmers from economic dislocation, racial calculations, she argues, destroyed early on any possibility that the federal government would establish universal agricultural benefits as a matter of right. Continue reading "The Jim Crow Foundations of Agricultural Governance"

Striking Out Specious Claims in Mass Tort Global Settlements

S. Todd Brown, Specious Claims and Global Settlements, 42 U. Memphis L. Rev. (forthcoming 2012), available at SSRN.

The late Richard Nagareda once noted that global settlements in mass tort litigation present a “Field of Dreams” problem – “if you build it, they will come.”  In the movie, people came to the Iowa baseball field in the corn fields because it was “money they had, but peace they lacked.”  The opposite is true in mass tort litigation.  In most cases, multinational corporations and plaintiffs’ firms with large inventories of claims typically achieve peace through a global settlement resolving all of the victims’ claims.  It is money that the individual victims lack, and it is why the victims consistently come in droves, many with claims that are specious at best.

In his excellent article Specious Claims and Global Settlements, Todd Brown examines three comprehensive settlements in mass tort litigation to identify the cause of the “Field of Dreams” problem.  He contends at the outset that the problem is caused by more than adverse selection, in which asymmetries in information allow plaintiffs with dubious claims to try to collect. (P. 20.)  Instead, Brown provocatively argues that the problem arises from how the parties define what a compensable claim is in negotiating the settlement, using the settlement to “supplant[] tort law with a negotiated grid for compensation.”  (P. 23.)  Brown shows that the parties negotiating the settlement define grids because they only care about the size of the settlement, not the distribution of the proceeds.  But by failing to establish more accurate distribution procedures, global settlements allow a thousand specious claims to bloom. Continue reading "Striking Out Specious Claims in Mass Tort Global Settlements"

Toward Real Criminal Justice

William Stuntz, The Collapse of American Criminal Justice (Harvard University Press, 2011).

William Stuntz, who died last year, was the preeminent criminal procedure scholar of his generation.  His early work on criminal procedure doctrine was breathtakingly insightful, providing deep explanations of the Court’s decisions and new ways of thinking about the law of search and seizure, interrogation, plea bargaining and sentencing.  His recent book, The Collapse of American Criminal Justice, weaves together his earlier doctrinal perspectives with brilliant analysis of criminological data, legal and cultural history, and the sociology of criminal justice, all in an effort to explain why our criminal justice system suffers from unnecessary mass incarceration, horrendously long sentences, racially imbalanced charging and sentencing, and a host of other flaws.

Stuntz attributes the current state of affairs to a number of factors, not all of which are obvious.  He is particularly bothered by the loss of local influence over crime policies.  He argues that until the mid-twentieth century police, prosecutors, juries and judges were very responsive to the community and that, outside the South, this attention to local morés resulted in a relatively lenient, non-discriminatory punishment regime.  Today, in contrast, police and prosecutors are more distant from their polity, most cases do not go to trial (making them invisible to the public), and when cases do go to trial juries and judges have much less flexibility in imposing punishment, all of which contributes to more punitive outcomes. Continue reading "Toward Real Criminal Justice"

Womb as Wedge: What We Can Learn from Revisiting the Political History of the Abortion Controversy in the US

Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011), available at SSRN.

Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?

This is delightfully, smugly, self-satisfying. It is neither analytic nor strategic. And when, inevitably it seems, our relatively open access to abortion (as Carol Sanger has called it, the “luxury of legality”) starts to be challenged, it might leave us rather less than prepared. Greenhouse and Siegel’s article illustrates how a slow burn, not the blast of Roe v. Wade, led to the bitter struggle over reproductive rights in the U.S. today. Continue reading "Womb as Wedge: What We Can Learn from Revisiting the Political History of the Abortion Controversy in the US"

Labor Speech is Corporate Speech

Citizens United remains in the public consciousness long past the normal half-life for a Supreme Court decision.  The notion that “corporations are people” has become a punch line in a variety of contexts—proof of the absurdity of the Court’s opinion.  While the decision itself simply freed corporations from the constraint of political action committees in their election-related spending, it has engendered continued outrage and cynicism at both the political process and corporations themselves.  The fact that the opinion extended these rights to unions, as well, has received much less attention.  Perhaps more importantly, the decision has ramifications for the future of corporate and union political activity that are yet to be fully developed.  Two labor law scholars explore these ramifications in articles seeking to extend the principles of Citizens United to familiar labor law doctrines, with creative and thought-provoking results.

For Charlotte Garden, the Citizens United decision offers the opportunity to extend the argument she began in an early article1: namely, that union speech deserves greater constitutional protection. In her Citizens, United piece, Garden uses the opinion as a springboard for reconsidering two significant restrictions on union speech: the prohibitions on union secondary activity and the objection rights of employees covered by union security clauses.  She argues that the distinction between “public-issue” picketing and boycotts (by groups such as the Westboro Baptist Church) and “economic” picketing and boycotts (by unions) is vulnerable in light of Citizen United, which held that the corporation’s motive is irrelevant to First Amendment protection.  Because both corporations and unions cannot be stopped from engaging in political speech, Garden suggests that union campaigns may be protected if they take on more public-interested oriented themes.  And she also points out that since Citizens United overrode the concerns of objecting shareholders to corporate political speech, that opinion undercuts the protections for employees who object to paying union dues that fund political speech. Although acknowledging that the analogy is “not an exact one,” Garden argues that protecting union objectors but not shareholder objectors is a tough distinction to maintain, given that in both cases speech rights are pitted against administrative burdens, but with differing results. Continue reading "Labor Speech is Corporate Speech"

Artificial life but real inheritance?

Kristine S. Knaplund, Synthetic Cells, Synthetic Life, and Inheritance, 45 Val. U.L. Rev. 1361 (2011).

Kristine Knaplund’s well-written and researched article, Synthetic Cells, Synthetic Life, and Inheritance, discusses the legal and regulatory implications of new advances in synthetic biology that may one day lead to the creation of synthetic human gametes or embryos that are made without the use of existing genetic materials.  The article first discusses the current state of assisted reproduction in the United States and the various techniques that are currently available for individuals with fertility problems.  Next the article examines the existing regulations that may apply synthetic gametes and either encourage or prohibit research in this area.  Finally, the article tackles the question of who will be the legal parents of a child created using synthetic gametes.

Prof. Knaplund notes that assisted reproduction is “big business” in the United States, with the exchange of eggs (ova) alone being worth $4.5 billion in the United States.  The use of in vitro fertilization, where the egg and sperm are joined in a Petri dish and later implanted in a woman’s uterus, was first successfully used in 1978 and since then over 3 million babies have been born worldwide using assisted reproduction technologies (“ART”).  Cryopreservation (freezing) of sperm, ova and embryos is commonly used today and preimplantation genetic diagnosis is used to screen for certain genetic or chromosomal diseases.  If a synthetic sperm or ovum were created, the user could select for genetic characteristics that are not present in the intended parents. Continue reading "Artificial life but real inheritance?"

The Other Carceral State

Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. (2012) (forthcoming).

Mass incarceration is much in the news lately, and rightly so. With a prison population that surpasses that of the gulags during the reign of Stalin (not to mention the world’s highest incarceration rate — four times the average), it is fair to say that “[t]he scale and the brutality of our prisons … are the moral scandal of American life.” (Adam Gopnik, New Yorker, Jan. 30, 2012). And yet, Alexandra Natapoff’s new article, Misdemeanors, strikingly reminds us that there may still be some competition for that title. Prisoners may own the criminal justice system, but there is still plenty to be said about the millions of renters who spend just an evening or two in its company every year.

Gaining purchase on those transient offenders is no simple feat. Although there is respectable data about felony charges and dispositions in the United States, it is virtually impossible to discern what happens in low level courts. I know this to be true from my own experience: in 2009, I published an article titled Manufacturing Crime that attempted to document the vibrancy of charging what I termed “obstinacy offenses.” In focusing on crimes like “failure to appear,” “false statements,” and “dissuading a witness,” particularly at the state level, I tried to demonstrate that a new breed of process crime was emerging, one intended to penalize simple slights against the justice system itself rather than legitimate efforts to obstruct justice. In the course of researching that article, however, time and again I encountered a shocking dearth of information about minor offenses. At best, all I could marshal was anecdotal or small-scale empirical evidence from a single jurisdiction.

Professor Alexandra Natapoff, wrestling the same problem, comes out much farther ahead. She starts her article by observing that there are roughly ten times as many misdemeanor prosecutions per year than felony cases filed; in 2008, roughly 80% of the over 21 million criminal cases filed in state courts were for misdemeanor offenses. She adds that 13 million people cycle through local jails per year, and that roughly 60% of the jail population at any time are held pre-conviction. In the end, though, she is vexed by the same lack of information: she would like to report even a statistic as simple as how many misdemeanor convictions are entered each year (not to mention for what types of crimes, and carrying what sentences), but lamentably such data is lacking. Luckily, the object of her paper is less to document the exact nature of misdemeanor offenses than to present a compelling case that “petty” crimes deserve our care. Indeed, she argues that “[t]he casual attitude toward petty convictions in general…is exquisitely expressed by the fact that the criminal system often fails to count them.” Continue reading "The Other Carceral State"

No Option: Thinking Through Elections

For the most part, I prefer less choice.  More choice can lead to less time and less pleasure.  Think about the decision to stay in or go out for dinner.  You look in your cupboards and there isn’t much.  Perhaps a can of tomato and rice soup.  So, you think, maybe it’s a good idea to go out.  But where?  Sometimes brainstorming the options alone is daunting, and after generating a list I simply decide to stay in.  And that’s a good outcome.  In a less ideal case, I’ll spend several hours on the internet, reading reviews of restaurants, looking at menus and prices, calling friends for views, only to become so daunted by the options and by the lack of an obvious “winner” that I’ll stay home.  I will never regain that time.  Worse yet, I do all that research – the internet research and calls – and I chose something.  But when I go to the restaurant it’s a disappointment.  I spend the night wondering if I could have made a better decision.  Cream of tomato soup with rice, and three extra hours, would be preferable.

In “Choosing Tax: Explicit Elections as an Element of Design in the Federal Income Tax System,” Heather Field approaches the issue of the role and value of explicit tax elections.  Apparently more than 300 explicit tax elections litter the Internal Revenue Code.  Field explains that an explicit election is a case where multiple possible tax treatments might apply to a single economic event. Continue reading "No Option: Thinking Through Elections"

Making Sense

Julie E. Cohen, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press, 2012), available at

We always look for writings that make sense–both by themselves, treating their subjects adequately, and by making sense to us as cyberlaw people. These writings help us to understand better the world around us; they also give us something that the knowledge of positive law and a vague understanding of technological change alone cannot give us. And so we become what Julie Cohen names so aptly “disciplinary magpies collecting alluring bits of this and that and cobbling them together.”

What is the recipe for sense-making? I see two universal elements: (i) The phenomena hitherto seen separately are being seen as connected in an exercise of reconfiguration, and (ii) a methodology is applied that gives us new insights into the forces that might be at work in these reconfigurations. There are two more for our special needs as law people: (iii) a normative stand, and (iv) pragmatic suggestions deriving from the new insights. The outcome is a sort of new magnifying glass that helps us to see new connections, to detect structures and processes at work, and to inspire speculation on new connections. Of course, we would not expect that the new world model would replace others as the sole explanation, we are content with having obtained yet another supplement. Cohen delivers: she connects, introduces methodology, takes a normative stand and makes suggestions, but her model is not one that would allow us to contentedly label yet another drawer and close it with satisfaction. Rather, she keeps us exposed to the unruliness of life and culture that the lawyer in us so abhors. Continue reading "Making Sense"

The Search for Slowness

Jason Webb Yackee & Susan Webb Yackee, Administrative Procedures and Bureaucratic Performance: Is Federal Rule-making “Ossified”?, 20 J. Pub. Admin. Research & Theory 261 (2010).

Administrative law scholars widely consider it to be a fact that the rulemaking process has become substantially burdened with analytical requirements, a burden that either has caused agencies to retreat from rulemaking or has significantly delayed agencies’ ability to adopt new rules.  Lamentation about this ossification of rulemaking pervades much scholarship in administrative law and underpins many scholars’ prescriptions about procedural reform.

In a recent article in a leading, peer-reviewed public administration journal, Jason Yackee and Susan Yackee try to measure the ossification of rulemaking, statistically analyzing the time needed to complete all non-routine rules initiated by every federal agency over nearly a two-decade period.  What they find stands in stark contrast with the prevailing view among administrative law scholars and draws into doubt whether the ossification effect is real. Continue reading "The Search for Slowness"

Documenting What Really Goes on in the Workplace

Emily A. Leskinen, Lilia M. Cortina, and Dana B. Kabat, Gender Harassment: Broadening our Understanding of Sex-Based Harassment at Work, 35 Law & Hum. Behav. 25 (2011).

Scholars who opine on issues of workplace discrimination know that the lifeblood of their scholarship is the work of those who conduct studies that capture and document the phenomena about which they write.  Those researchers who conduct such studies with an informed eye toward the law are thus invaluable to employment discrimination scholars, and it was with great interest that I read Gender Harassment: Broadening our Understanding of Sex-Based Harassment at Work by Emily A. Leskinen, Lilia M. Cortina, and Dana B. Kabat, 35 Law & Hum. Behav. 25 (2011).  The study, in the authors’ own words, seeks to “challenge[] the common legal and organizational practice of privileging sexual advance forms of sex-based harassment, while neglecting gender harassment.”

Citing to eminent scholars who have contended that gender harassment should be subsumed within the broader category of cognizable sexual harassment, the authors explain that gender harassment has been defined as “a form of hostile environment harassment that appears to be motivated by hostility toward individuals who violate gender ideals rather than by desire for those who meet them.”  Simply put, it is “hostility that is devoid of sexual interest.”  Proffering some much needed empirical support for the notion that gender harassment is at least as deleterious, if not more so, than its actionable counterpart, the authors advance ideas that may not have entered cultural consciousness, but that need to be properly understood by legislators, judges, advocates, scholars, and all others who shape and affect the law of workplace discrimination.  So, for example, the authors’ research enables them to posit that sexual harassment, in what they call “traditionally male domains,” mostly consists of gender harassment absent any sexual advances.  This compelling finding necessitates a shift in the popular conception of what sex-based harassment in the workplace truly looks like.  Moreover, the authors’ research enables them to posit that the negative personal and professional impact of gender harassment in the workplace on women is immense. Continue reading "Documenting What Really Goes on in the Workplace"

Love and War

Rose Cuison Villazor, The Other Loving: Uncovering the Federal Government’s Racial Regulation of Marriage, 86 N.Y.U. L. Rev. 1361 (2011).

Legal historians: Find a window to read Rose Cuison Villazor’s “The Other Loving,” published in the NYU Law Review last fall. Although Villazor, Associate Professor of Law at Hofstra, does not identify primarily as a legal historian, she has written more than one historical work well worth a read. An earlier article examined alien land laws in the United States, telling the story of Oyama v. California (1948), which held unconstitutional a provision of California’s Alien Land Law that discriminated against owners of property bought by parents who were ineligible to become U.S. citizens. This more recent article, in turn, explores how immigration, citizenship, and military statutes and regulations in the period around World War II interacted to produce federal anti-miscegenation law, with both domestic and extraterritorial effects. Carefully researched and engagingly written, Villazor’s article seeks to challenge the conventional view that legal restrictions on marriage have traditionally been the sole domain of state, not federal, law—with implications for historical scholarship and for current political debates.

Villazor opens the piece with the story of Helene and John Bouiss, a half-Japanese, half-German woman and her white American husband, who in the spring of 1946 arrived in Seattle, Washington aboard a military ship, having been married at sea by the captain days earlier. Despite the passage of the so-called War Brides Act the year before, officials stopped Helene at the border on the ground that immigration law prohibited the entry of persons ineligible to become U.S. citizens. At the time, U.S. law put citizenship off-limits to persons identified as belonging to certain racial and ethnic groups, including Japanese. Helene, a Swedish citizen on the basis of a prior marriage, was a person of “mixed racial blood,” including that of a citizenship-ineligible group, in the eyes of the relevant immigration regulations; she was therefore covered by the prohibition. Her marriage to a U.S. citizen soldier honorably discharged from the military did not help; nor did the Ninth Circuit Court of Appeals, which upheld the exclusion. (The case never made it to the U.S. Supreme Court.) Continue reading "Love and War"

Pluralism Reimagined

Jan Smits, “A Radical View of Legal Pluralism” in Leone Niglia, ed, Pluralism and European Private Law (Oxford, 2012), available on SSRN.

Legal Pluralism is both a phenomenon and a response to that phenomenon.  We live in a world with a plurality of legal orders.  There are municipal legal systems and international law.  These are the most familiar forms of law, the most comfortable types of legal orders.  Then there are international or “supranational” legal orders like the European Union.  Finally, there are private and transnational legal orders that traverse the boundaries both of “law” and the very notion of a “system” (think of Lex Mercatoria or Sports law).

Jan Smits has been writing about legal pluralism for some time.  His work is always interesting.  This chapter is both intelligent and provocative because Smits takes legal pluralism to a new place and gives it a dimension no one has yet considered. Continue reading "Pluralism Reimagined"

Regulation and Theory: What Does Reality Have to Do With It?

Christine Parker & Lyn Aitken, The Queensland “Workplace Culture Check”: Learning from Reflection on Ethics Inside Law Firms, 24 Georgetown J. Legal Ethics 399 (2011).

Australia is the home to some of the world’s most interesting and provocative legal profession developments.  For example, Australian jurisdictions were among the first jurisdictions to permit nonlawyer ownership of law firms.  Not long thereafter, the Australian regulatory scheme was amended to permit outside investment in law firms.  As a result, Australia became the site of the world’s first publicly traded law firm.  Australia has been on the forefront of other lawyer regulation developments such as the proactive use of ex ante systems of regulation.

As commentators and jurisdictions elsewhere discuss and debate the proper scope of lawyer regulation, many look to Australia’s experiences in the hopes that they will provide valuable information and lessons.  Those actively following the Australian developments include the American Bar Association (ABA), the UK Legal Services Board, and the Solicitors Regulation Authority (SRA), which is the front-line regulator for solicitors in England and Wales. Continue reading "Regulation and Theory: What Does Reality Have to Do With It?"

Defending Freedom of the Press as an Institutional Guarantee: A Guide in Dealing With Historical and Jurisprudential Obstacle Courses

Randall P. Bezanson, Whither Freedom of the Press?, Iowa L. Rev.  (forthcoming), available at SSRN.

Randy Bezanson’s recent short piece, Whither Freedom of the Press?, is an instructive example of how to get around an obstacle—two obstacles, really. The first is the Supreme Court’s opinion in Citizens United v. FEC, 130 S. Ct. 876 (2010). In the course of striking down a law prohibiting the direct use of corporate or union treasury funds for electioneering communications, the Court stated that “the institutional press has [no] constitutional privilege beyond that of other speakers.”

The second obstacle is actually more formidable. In a recent article in the University of Pennslyvania Law Review, Freedom of the Press as an Industry, or for the Press as a Technology?: From the Framing to Today, Eugene Volokh takes on the view of some writers, including Justice Stevens in his dissent in Citizens United, that the Press Clause of the First Amendment provides some form of protection to the press as an “industry” or institution. Volokh argues that the Press Clause protects the press only “as a technology”—that it secures only “the right of every person to use communications technology,” and grants no special privileges to the professional or institutional press as such. Skillfully marshaling extensive historical sources, Volokh concludes that the evidence “point[s] powerfully toward the press-as-technology reading” of the Press Clause, “under which all users of mass communications technologies have the same freedom of the press” and journalists qua journalists have no unique privileges. Continue reading "Defending Freedom of the Press as an Institutional Guarantee: A Guide in Dealing With Historical and Jurisprudential Obstacle Courses"

Protecting the True Objects of Decedent’s Bounty—Pets Included

Frances Foster, Should Pets Inherit?, 63 Fla. L. Rev. 802 (2011).

I have never had a pet (yes, very sad), so I must admit that in my Estates & Trusts course, I covered the cases involving gifts to pets with some amusement.  After reading Frances Foster’s provocative article, Should Pets Inherit?, I will never teach those cases in quite the same way again.  Building on many scholars’ (including her own) critiques of U.S. inheritance law’s focus on relationships based on blood, adoption, or marriage to the exclusion on those based on caregiving and affection, Professor Foster expands the universe of beings who should inherit to include non-human family members—pets.

Professor Foster briefly summarizes the rich literature showing that U.S. inheritance law excludes many people Americans consider nearest and dearest to them, including nonmarital partners, friends, and individuals with whom they share a de facto parent-child relationship.  As a result, inheritance law often conflicts with and defeats decedents’ wishes to provide for individuals with whom they shared affectionate and supportive relationships.  She points out that the law’s exaltation of family status over affection and support is so entrenched that attempts to give property to persons the law does not consider “family” are deemed “unnatural.”  In my opinion, many would find few bequests more “unnatural” than dispositions to a pet, which the law deems to be property and as such, cannot inherit under the common law.  As Professor Foster points out, bequests to a pet may be used as evidence of testamentary incapacity. After all, who in their right mind would leave property to a pet?  However, Professor Foster persuasively demonstrates that given the vast majority of pet owners’ inclusion of their pets in their definition of family and their desire to provide for their pets after they pass, the law should allow and facilitate inheritance by pets. Continue reading "Protecting the True Objects of Decedent’s Bounty—Pets Included"

Interpreting the Federal Rules of Civil Procedure

David Marcus, When Rules are Rules: The Federal Rules of Civil Procedure and Institutions in Legal Interpretation, __ Utah L. Rev. __ (forthcoming), available on SSRN.

The debate over how best to interpret legal text is not limited to the Constitution and controversial statutes, although the expansive literature about interpretation in those contexts might lead one to think that is the case.  There are plenty of other legal texts to argue about, and David Marcus’s article, When Rules are Rules:  The Federal Rules of Civil Procedure and Institutions in Legal Interpretation, focuses on none other than the Federal Rules of Civil Procedure.  Shocking as it may seem (maybe because we are all kicking ourselves that we did not notice this first), there is not much written about how judges should interpret the Rules.1 Moreover, recent Supreme Court decisions, namely Bell Atlantic v. Twombly and Ashcroft v. Iqbal, demonstrate that reasonable people can disagree about how best to interpret even the most basic and simply-stated Rules.  What’s missing is a unified theory of how judges should interpret the Federal Rules, and Marcus’s article is here to save the day.

Marcus puts forward a theory of rule interpretation that respects the unique nature of how the Federal Rules of Civil Procedure came to be and how they continue to evolve.  The old adage of a parent loving each of her children equally—and appreciating their differences—applies here.  The rules are one of many “textual” children, and they cannot be interpreted as an agency regulation or a constitutional provision might be. Continue reading "Interpreting the Federal Rules of Civil Procedure"

A Drive for Efficiency May Not Drive Inefficient Discrimination From the Marketplace

Lesley Wexler, Wal-Mart Matters, 46 Wake Forest L. Rev. 95 (2011).

In Wal-Mart Matters, 46 Wake Forest L. Rev. 95 (2011), Lesley Wexler challenges the law and economic orthodoxy that suggests that inefficient employment discrimination tends to be driven out of the marketplace.  The typical rationale is that employers who discriminate will have higher costs of production based on their inefficient discrimination and will necessarily be less competitive than their competitors.  Professor Wexler describes how systematic sexual discrimination can exist indefinitely even when an employer’s successful business model focuses almost exclusively on efficiency and providing the lowest cost goods in the marketpalce.  Wal-Mart Matters is an article that I like lots because it discusses employment discrimination and law and economics in challenging a point of orthodoxy and explaining why the orthodoxy may not be convincing or correct in a particular situation.  To be clear, the article is not an exhaustive treatment of the issues and does not appear intended to be.  However, it makes the reader think  about how a theoretical point regarding markets may not work as well as expected in a real-world market.  The subject matter is of particular interest to me because I teach employment discrimination and have taught law and economics.  However, the article ought to be of interest to a wide variety of law professors and legal commentators.

The article is timely, but its title is a little unfortunate.  Given the article’s timing, its title may suggest to some that it is about the Wal-Mart litigation that was decided by the Supreme Court this past year.  Though Wal-Mart and its practices are at the core of this article, the litigation is only a point of departure.  Rather than analyze the substance of the class action against Wal-Mart, Professor Wexler asks that the reader assume that the allegations of sex discrimination in pay and promotion that are at the core of the litigation are supported or supportable.  Professor Wexler then examines how a widespread practice of seemingly irrational sex discrimination could exist at Wal-Mart given law and economics principles that claim that irrational discrimination will be driven out of the marketplace and given that Wal-Mart appears to follow a practice that focuses on efficiency as a business model. Continue reading "A Drive for Efficiency May Not Drive Inefficient Discrimination From the Marketplace"

In Praise of a Comparativist Rubric for Administrative Law

Francesca  Bignami, From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law, 59 Am. J. Comp. L. 859 (2011).

Administrative law scholars in the United States who seek to borrow ideas from approaches tried by other liberal democracies face a substantial problem: each country’s government is structured differently.  There is no recognized metric for evaluating how administrative law will play out in a state with a different structure of government. The lack of such a metric is especially troubling as governments seek to take advantage of flexible regulatory approaches that harness the knowledge and incentives of stakeholders in the regulatory process.  A fascinating article, “From Expert Administration to Accountability Network: A New Paradigm for Comparative Administrative Law,” by Professor Francesca Bignami, provides a first stab at providing such a metric.

Professor Bignami criticizes the traditional characterization of administrative law, as “organization of public administration” and “judicial review of administrative action,” for its inability to “engage with contemporary debates on the desirability and future possibilities of administrative law.”  To surmount this inability, Bignami begins to “develop . . . a comparative framework by recasting administrative law as an accountability network of rules and procedures through which civil servants are embedded in their liberal democratic societies.”Bignami breaks down the concepts of accountability network into four sets of relations: those between civil servants and elected officials, organized interests, the courts and the general public, respectively.  The accountability network description is “well equipped to capture such phenomena in administrative governance as: the political objectives of the bureaucracy; the role of organized interests in providing new mechanisms of regulatory control, and the ability of the public to hold the bureaucracy accountable. Continue reading "In Praise of a Comparativist Rubric for Administrative Law"

Tinkering with the Machinery of Justice

Stephanos Bibas, The Machinery of Criminal Justice (Oxford Univ. Press, 2012).

Ordinarily I would use space in Jotwell to bring attention to up-and-coming scholars. The author whose work I praise here, however – Stephanos Bibas – arrived long ago. But Bibas’s new book, The Machinery of Criminal Justice, is so humane and thoughtful an analysis of the reforms needed in our criminal justice system that I find myself drawn to giving him still more good press. I do not agree with every jot-and-tittle of his analysis nor every recommendation for reform that he makes. But his vision is a powerful one, he defends it with clarity and grace, and every idea he expresses is capable of starting an important conversation. Bibas’s argument turns on three central ideas: (1) the system pretends to a mechanistic efficiency deaf to the emotions and meaningful expressions that undergird any sound system of criminal justice; (2) lawyers and other experts have hijacked the system to serve their own needs, displacing defendants, victims, and even judges; and (3) the political forces at work are skewed toward undue penal harshness and elite control rather than adequately balanced by informed lay participation.


Bibas argues that our system undervalues positive emotions and distorts negative ones. The positive emotions that are undervalued are remorse, apology, and forgiveness. The negative ones that are distorted are the retributive emotions. Continue reading "Tinkering with the Machinery of Justice"

Heroes, Tragedies, and Our Failed Community

Robin West, Tragic Rights: The Rights Critique in the Age of Obama, 53 Wm. & Mary L. Rev. 713 (2011), available at SSRN.

No one talks about what is wrong with rights anymore.  Rights critique, suggests Robin West, has been on a sharp decline since the 1990s and has been particularly muted under current American administration.  This silence, West argues, is both strange and undesirable.

While she offers some hypotheses to explain these observations, West’s focus is not a post-mortem on the critical rights movement of the 1980s.  Instead, and put simply, her aim is to reinvigorate the rights critique in light of both current political, social and economic context and the ways in which rights claims are currently being configured in response to this context. Continue reading "Heroes, Tragedies, and Our Failed Community"

Repeal the Grantor Trust Rules

Mark L. Ascher, The Grantor Trust Rules Should Be Repealed, 96 Iowa L. Rev. 885 (2011).

“It is not a matter of the cure being worse than the disease.  It is rather, that the cure has become the disease.”1  This line, written by Leo Schmolka, is quoted in Mark Ascher’s recently published article calling for repeal of (most of) the grantor trust rules.  I quote Schmolka here too because he so pithily captures “the irony of using anti-abuse rules to abuse the tax system.”  The tax avoidance vehicle of choice is known as an “intentionally defective grantor trust” or “IDGT” (sardonically pronounced “I dig it”).  As noted by Ascher, “even their name seethes with irony.”

Ascher’s article makes three main points:  1) the grantor trust rules are obsolete; 2) their continued existence leads to significant erosion of our income and transfer tax bases; and 3) as a result the grantor trust rules (or at least most of them) should be repealed.  To be sure, most of these points are not new, and indeed, two other recent articles cover similar ground.2  However, Ascher’s is by far the most comprehensive and, in my opinion, persuasive of the three. Continue reading "Repeal the Grantor Trust Rules"

The Law of Aging

Hendrik Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age (Harvard University Press, 2012).

Modern medicine, the rise of the welfare state, and profound cultural shifts have transformed old age in the industrialized world. Or have they? Hendrik Hartog’s history of inheritance disputes from 1850 to 1950 excavates a world both familiar and foreign.  Then, older people who dreaded loneliness and destitution promised generous bequests of property in exchange for care and solicitude from younger adults. In turn, younger adults sacrificed opportunities—independence, mobility, marriage, fortune-seeking—to remain close to home and to provide arduous and intimate care in the hope of recompense, often in the form of real estate.

Disappointment, resentment, and recrimination predictably ensued—at least in many of the cases Hartog describes. He takes us deep into the lives of middle-class New Jersey families, as revealed in trial transcripts from law suits brought by frustrated would-be heirs. Hartog first explores the world of the aging adults who attempted—with varying degrees of calculation and desperation—to exercise control over their “retirement” years, particularly their anticipated physical and mental decline. Continue reading "The Law of Aging"

Organizational, Not transactional, Legal Engineers

Jennifer Arlen, The Failure of Organizational Sentencing Guidelines, 66 U. Miami L. Rev. 321 (2012), available at SSRN.

Many are claiming that the market for legal talent is undergoing fundamental transformation.  If so, there are undoubtedly multiple causes, at the least because the legal market is a highly differentiated one.  In the individual and personal plight sector, user-friendly consumer interfaces and legislative and judicial restrictions on access to justice are of importance.  In the corporate sector, intelligent search engines, outsourcing and the internalization of legal work are of importance.

Today’s changes in the corporate sector of the legal profession, in my opinion, mirror the changes in the engineering profession at the beginning of the last century.  The basic story is that engineering was once a liberal profession, marked by engineers working in engineering firms. Now, although engineering firms still exist, by and large, engineers work inside corporations.  In this transformation, engineers, like lawyers today, lost the monopoly rents which they were able to extract in market transactions between professional firms, which largely controlled elite expertise, and corporate organizations. Continue reading "Organizational, Not transactional, Legal Engineers"

Placing British Employment Law In Context

Hugh Collins, Employment Law (2d ed. 2010).

It is probably fair to generalize that the best American legal scholarship in the fields of labor, employment, and employment discrimination law has found little inspiration in the study of comparative law. Hugh Collins’s analytic and insightful but succinct overview of British employment law — republished in 2010 in a second edition to account for significant developments in response to European Union law — should teach any perceptive American reader that this need not be the case. This two hundred sixty page volume demonstrates that studying how other developed countries have addressed common issues presented by the employment relationship not only can help define practical and conceptual problems for American law to address but also can help spark creative thinking about solutions.

Professor Collins, who has served as general editor of the Modern Law Review and twice successfully led the law department at the London School of Economics, places the employment law of Britain in both an historical and political-social context. The historical context includes our common nineteenth century liberal tradition of free contracting and our common twentieth century response of industrial pluralism to the “commodification” of labor and the resultant threats to economic and political stability. The political-social context includes the sometimes divergent influences from America and Europe, with the latter becoming more dominant through European Union directives. Continue reading "Placing British Employment Law In Context"

Tax Ethics: Advice from the Past

Michael Hatfield, Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties, and Advice, 12 Fl. Tax Rev. 1 (2012), available at SSRN.

Major cases in the news from tax shelter promotions to corporate accounting abuses have once again put the ethical obligations of  lawyers, and specifically tax lawyers, onto center stage (or at least in the wings).  Congress passed increased standards for return preparers and the Treasury has followed with increased preparer standards in Circular 230.

It is within this framework that I read Professor Michael Hatfield’s article, which examines the ethical debate and discussions by some of the leading scholars and practitioners during the 40s, 50s, and 60s.  These tax lawyers were at the forefront of discussions regarding the modern income tax.  Professor Hatfield’s historical examination provides us with insight into what they were thinking, and provides us with food for thought as we examine modern ethical problems. Professor Hatfield’s point is just that, to provide us with food for thought.  He does not attempt to draw conclusions from this debate regarding what we should do now.  Instead, he carefully and thoroughly outlines the debate at the time and leaves us with opportunity to draw our own lessons from the analysis.  What is clear from the article is that the leading tax lawyers of the time were as conflicted as we are today on many issues, especially the question whether tax lawyers had a special “duty to the system.”  Interestingly, however, they were almost universal in their agreement on two major points: (1) that the payment of taxes was a civic duty, one which had a strong patriotic element, and (2) tax lawyers had a duty to be proponents, reformers, and educators about the tax system. Continue reading "Tax Ethics: Advice from the Past"

State Interpreters

Oral arguments on the constitutionality of the Patient Protection and Affordable Care Act will consume three days of the Supreme Court’s schedule, an unusual assignment of the Court’s time. But the constitutional challenge, assuming it fails, will be just the first act in a long performance.  Abbe Gluck’s tremendous essay recently published in the Yale Law Journal takes up some of the fascinating potential statutory interpretation questions waiting in the wings.

These questions arise from the mix of institutional design choices involving the states in the Act (and in other legislation). The choices include provisions implemented only by the federal government, provisions implemented only by the states, and, of particular interest, provisions involving both sets of actors. Gluck trains on this last category, noting that the Act “appears to deploy the [state-federal] relationship strategically – as a way to expand the federal presence into several key areas of traditional state control – and somewhat paradoxically, also expressively, as a way to acknowledge the states’ traditional authority over health insurance.” (pp. 584-5) Continue reading "State Interpreters"

Law in the Books vs. Law in the World: The Case of Copyfraud

Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford Law Books, 2011).

So what does my frustration with the New York Mets have to do with copyright law?  A surprising amount.  And I say this even though the Mets have done a lot of things to make life difficult for their fans.  Over the years, I’ve watched my ballclub pay insane money to a series of pitchers who could not pitch, hitters who could not hit, managers who could not manage.  I’ve endured a seemingly endless string of Subway Series failures against the hated Yankees. I’ve celebrated the demise of the awful Shea Stadium, only to see it replaced with a new ballpark named for a bank that combined greed, arrogance, and ineptitude at a scale nearly sufficient to destroy the American economy.

And yet, from an IP geek like me, the ways in which the New York Mets have abused the copyright laws of the United States are even worse. Continue reading "Law in the Books vs. Law in the World: The Case of Copyfraud"

A Modest Proposal on Preservation

William Hubbard, Preservation Under the Federal Rules: Accounting for the Fog, the Pyramid, and the Sombrero, available at Lawyers for Civil Justice.

William Hubbard’s Preservation Under the Federal Rules: Accounting for the Fog, the Pyramid, and the Sombrero is an elegant, important, and provocative argument about what the Federal Rules of Civil Procedure should say about duties to preserve documents and electronically stored information. And it could not be timelier. The Judicial Conference’s Civil Rules Advisory Committee is actively considering rules that, for the first time, would expressly address preservation obligations and the consequences of not doing so. This effort is driven by a perception that—at least for a small percentage of the federal caseload—preservation burdens have contributed to spiraling costs in civil cases. Hubbard joins a distinguished list of authors who have written about preservation issues, but his paper seemed to attract the attention of a number of rulemakers at the Civil Rules Advisory Committee’s most recent meeting in November 2011.

Many have argued that the current Federal Rules, which are mostly silent on preservation obligations, need to be revised to expressly address preservation issues. As for what a federal preservation rule would look like, discussions have largely centered on three main questions: trigger (when does the duty to preserve arise), scope (what types and sources of information should be subject to preservation) and sanctions (what are the consequences of failing to preserve). Hubbard offers policy suggestions for all three. Continue reading "A Modest Proposal on Preservation"

Public Criminal Law at its Best

Guyora Binder, Making the Best of Felony Murder, 91 B. U. L. Rev. 403 (2011). available at SSRN.

“Making the Best of Felony Murder” is the culmination of a series of articles (and one book review essay) that have addressed the felony murder rule in American states and precedes a monograph to be published by Stanford University Press later this year. [The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59 (2004) (ssrn); The Culpability of Felony Murder, 83 Notre Dame L. Rev. 965 (2008) (ssrn); Meaning and Motive in the Law of Homicides, 3 Buff. Crim. L. Rev. 755 (2000); Felony Murder (Stanford University Press, forthcoming 2012).]  Binder has saved the best for last, and offered us not only a reading of the felony murder rule destined to help wake us up from a particularly telling pedagogic mystification, but a model of history and political theory as analytic tools for reconstructing doctrine.

Throughout this project, Binder challenges the view that felony murder rules are an archaic survivor of a hoary English common law approach to homicide liability (and criminal liability more generally) which endure in contemporary law despite clashing severely with the principles of modern criminal law liability because of their popularity with elected legislatures and prosecutors.  In addition to being a core “lesson” in first year criminal law classes, this view of felony murder arguably anchors a broader modernist conception of criminal law theory first laid down in the 1930s by criminal law scholars such as Herbert Wechslerand Roland Perkins, and refined in our era by giants such as our own Sandy Kadishand Frank Zimring. Continue reading "Public Criminal Law at its Best"

On (Not) Explaining Law’s Reason-Giving Power

David Enoch, Reason-Giving and the Law in Oxford Studies in Philosophy of Law, (Leslie Green & Brian Leiter, eds., Oxford University Press, 2011), also available at OUP Proofs.

A number of prominent legal positivists in recent years (including Jules Coleman and Scott Shapiro) have taken it as an urgent project – and have taken it as their project – to “explain law’s normativity.”  By that, they report that what needs to be explained is the way that law gives us reasons for action.  There is always something a little ironic when legal positivists try to explain the normativity of law, for it is generally considered to be foundational to that approach to law that it denies any necessary moral content to legal systems in general or valid legal norms in particular.

In “Reason-Giving and the Law,” David Enoch has worked as much to “deflate” the problem of law’s reason-giving as to resolve it. His basic point is that there is nothing that remarkable about the giving of reasons for action. Continue reading "On (Not) Explaining Law’s Reason-Giving Power"

Feminist Judgments

Rosemary Hunter, Claire McGlynn and Erica Rackley eds. (2010) Feminist Judgments: From Theory to Practice (Hart Publishing, Oxford).

‘Before rules, were facts: in the beginning was not a Word, but a Doing. Behind decisions stand judges; judges are men; as men they have human backgrounds.’ (Llewellyn 1931, p. 1222) Gender-neutralised, the sentiments contained in Llewellyn’s famous words and the article which they introduce still hold – the human background of judges is important, and ‘doings’ or ‘tangible realities’ rather than words and abstractions, are what makes law dynamic, purposeful, and responsive (if slowly) to an even more dynamic social context.

How, then, might law be different if judicial decisions were routinely made by feminists? What would a ‘female-gendered mark on the law’ actually look like? (p. 8). Feminist Judgments: From Theory to Practice begins to answer these (and other) questions. It presents twenty-three alternative feminist judgments for actual cases, and commentaries to accompany the cases, written by feminist academics and activists. All of the cases were decided in England and Wales, and most (though not all) were decided relatively recently and reflect current law. The idea of re-writing judgments from a feminist perspective has a Canadian precedent in the Women’s Court of Canada (see Majury 2006) while the idea of rewriting judgments (not necessarily feminist) has a US precedent in two books edited by Jack Balkin (2002; 2005, but see Majury 2006, n14). Whereas the Canadian cases focus on equality jurisprudence under the Canadian Charter of Rights, the cases in Feminist Judgments deal with a very broad range of legal matters: consent to medical treatment, same-sex marriage, capacity to marry, the defence of provocation, refugee law, manslaughter by neglect, trespass to property, custody to children under family law, pregnancy discrimination, consent to bodily harm, evidence and many more. Some of these areas are framed by British and European equality and human rights law, but many rely on development of the common law or interpretations of statutory provisions. Some of the judgments affirm the decision made in the existing case but do so using a different reasoning process, while others reject the original decision. Continue reading "Feminist Judgments"

The Boundaries of Legal Professionalism in England & Wales

As a current PhD student, whose research interests include legal professionalism and large law firms, I wish Andrew Francis’ latest book had been written several years ago. In just 228 pages, the book positively canters through many of the research themes I spent months compiling for my own literature review.

For example, by the end of chapter one, a novice reader will be made aware of the size, entry routes and recent reforms to the English and Welsh legal market, to name but a few topics. By the end of the first page of chapter 2, the reader will be introduced to many historical, and current, writers on a range of issues relating to legal professionalism – no mean feat in a mere 20 pages. Continue reading "The Boundaries of Legal Professionalism in England & Wales"

Public Pension Plan Problems

Amy B. Monahan, Public Pension Plan Reform: The Legal Framework, 5 Educ., Fin. & Policy 617 (2010).

One of the more noticeable effects of the on-going global financial crisis is the increased attention being paid to the amount of money being spent by state governments on public pension plans. Unlike private sector pension plans, which are governed by the federal Employee Retirement Income Security Act of 1974 (ERISA), public pensions are instead covered by a vast array of complex state laws and regulations.  So while most people are pointing out that something must be done about the burgeoning public pension funding deficits, many have been stymied about how to undertake the amendment of these plans in a legal fashion.

Part of the problem is that states have adopted different legal theories to protect public pension rights. To some states, pension rights are property rights, while in other states, pension rights are contractual in nature.  Still a few states adhere to the traditional approach and see public pensions as mere gratuities.  In any event, and as many states have found out much to their dismay, the business of amending a public pension plan is a tricky one, filled with legal minefields. Just ask the states of Colorado, Minnesota, and South Dakota, which have been all sued after seeking to reduce the annual cost-of-living- adjustment (COLA) for current retirees.

All this chaos in the public pension plan world requires some ordering principles. At least as far as organizing states’ various legal approaches to public pension plans, Amy Monahan’s paper, Public Pension Plan Reform: The Legal Framework, does exactly that.  Understanding that many states are either currently going through a process, or contemplating a process, to amend their public pension plans to save money in these difficult economic times, Monahan first explains the difference between private pension plans and public pension plans, and then effectively explains the primary legal approaches states have taken to protect public employee pension rights. Continue reading "Public Pension Plan Problems"

The Failings of Donor Intent

In his May, 2011 article, Who Are The Beneficiaries of Fisk University’s Stieglitz Collection?, Alan L. Feld presents an intriguing case study. Charitable giving is not new, nor are the issues of donor standing, beneficiary standing or the doctrine of cy pres.  In fact, the issues arising from the obsolescence or dis-utility of charitable gifts recently have captured the attention both of the general public and the academy.  Professor Susan N. Gary’s article entitled, The Problems With Donor Intent: Interpretation, Enforcement, and Doing the Right Thing, 85 Chi-Kent L. Rev. 977 (2010) presented a comprehensive analysis of the legal issues implicated in a variety of noteworthy failed charitable gifts.

By focusing on the Stieglitz Collection, a muti-million dollar collection of artwork housed and maintained at Fisk University in Nashville, Professor Feld’s article serves as an important complement to the somewhat longer piece by Professor Gary.  Professor Feld raises important issues including the role of the state’s attorney general in overseeing charitable trusts, fidelity to the all too often enigmatic intent of the donor, the tension between the doctrine of cy pres and literal interpretation of conditions on gifts, the importance of determining the charitable beneficiaries, and questions of who has standing to sue to enforce charitable purposes.  Professor Feld presents compelling reasons for expanding the legal standing of the beneficiaries of a charitable trust. Continue reading "The Failings of Donor Intent"

Superfriends of the APA

• Comments on H.R. 3010, The Regulatory Accountability Act of 2011, submitted by the ABA Section of Administrative Law and Regulatory Practice to the House Judiciary Committee (Oct. 24, 2011).
• Testimony of Sidney A. Shapiro (University Distinguished Chair in Law, Wake Forest School of Law; Vice President, Center for Progressive Reform), Hearing on H.R. 3010, Regulatory Accountability Act of 2011, House Judiciary Committee (Oct. 25, 2011).

In early December 2011, the House passed two alarming bills that, if ever enacted, would wreak havoc on the rulemaking process.1  On December 7, it passed the REINS Act—the acronym stands for “Regulations from the Executive In Need of Scrutiny.”  This bill is simple in its design, requiring congressional approval for regulations that have an economic impact in excess of $100 million.  Considered as a reform of the rulemaking process, it has the honest virtues of a clean kill—a bullet to the head.  Less than a week before, on December 2, the House passed the Regulatory Accountability Act (“RAA”).2  The RAA would cripple rulemaking by adding dozens of new procedural and analytic requirements to the process.  These requirements include, among many other things, extensive cost-benefit analysis at multiple stages of the process and even formal rulemaking for “high impact” rules.  Yes—that’s right, formal rulemaking could come back from the (almost) dead.  Rather than a clean kill, the RAA promises to haul rulemaking into a back alley and beat on it until maybe it dies.

If you are the sort of person who frequents JOTWELL’s administrative law page, then you probably already know something about both these bills.  Regarding the REINS Act, it may be fair to say that there isn’t all that much to know—it is easy to describe what it does and its anti-regulatory intent is as plain as the summer sun.  The RAA is a far more complex beast, which makes it very difficult to summarize and concisely assess.  Such work is important because proponents of the RAA might find themselves in control of the Senate and the Presidency someday not too long from now.  If this eventuality occurs, one must hope that the powers-that-may-be can be persuaded that they didn’t really want to cripple administrative rulemaking.  They just said they did when they didn’t have the power to make it happen.

It is with this context in mind that I want to draw your attention to two excellent pieces of administrative law scholarship that were submitted to the House Judiciary Committee as it considered the RAA.  (Links to both are at the top of this short essay.) Continue reading "Superfriends of the APA"

New Comparative Constitutional Scholarship on Enforcing Second Generation Rights

The Texas Law Review recently published an important symposium on Latin American constitutionalism. Many of the articles make important contributions to the field of comparative constitutional law, not least because the English-language literature in the field has been dominated by discussions of constitutional doctrine in Europe and North America. (Not surprisingly, the part of the literature on creating constitutions has had a wider geographical range.)

The two articles I have singled out deal with a phenomenon of growing importance outside the United States, the judicial enforcement of social and economic – so-called “second generation” – rights. Interpreting constitutions adopted or amended substantially much more recently than the U.S. Constitution has been, constitutional courts around the world have moved past the question on which U.S. scholars typically focus – whether courts should enforce second-generation rights – to consider how to do so. Or, perhaps more precisely, many courts have embarked on projects of enforcing second-generation rights, and their performance allows scholarly evaluation, informed by actual experience in additional to theoretical speculation, of judicial enforcement of second-generation rights. Continue reading "New Comparative Constitutional Scholarship on Enforcing Second Generation Rights"

Aggression v. Atrocity in the History of International Law: From the Tokyo Trial to the Vietnam War

Samuel Moyn, From Antiwar Politics to Antitorture Politics, available at SSRN.

Columbia University history professor Samuel Moyn (visiting at Yale Law School in the spring term of 2012) has recently posted his paper From Antiwar Politics to Antitorture Politics on SSRN, a paper I heard him present at a November session of the Critical Analysis of Law workshop at my law school, the Faculty of Law, University of Toronto.  I write about it here on JOTWELL because it is an excellent paper, which law professors might not otherwise hear about, offering an extremely thoughtful intervention on the recent history of international law.

Moyn’s thesis is that international law in the human rights era has moved from a Nuremberg-informed concern with the crime of waging aggressive war to a preoccupation which he thinks first developed in the later stages of the Vietnam War with crimes committed in the conduct of war itself, with the means and methods of warfare so familiar to us now in post-9/11 debates about the detainment and torture of prisoners in the “War on Terror.”  Until My Lai in 1969, Moyn argues, Americans were shockingly cavalier about illegal military acts committed in the Vietnam War that were widely known to be occurring – mistreatment of POWs (direct military shootings and torture of suspected South Vietnamese subversives), search and destroy missions that made little or no effort to distinguish between combatants and civilians, and massive aerial bombardments, including unauthorized bombings in Cambodia and Laos.  When American lawyers entered the debate about the legality of the war, Moyn shows that they paid little attention to crimes committed in the conduct of the war.  Here he focuses on the activities of “The Lawyers Committee Concerning American Policy in Vietnam” between 1965 and 1969.  This group concentrated on aggression and the legality of American intervention in Vietnam and nowhere addressed the law governing the conduct of warfare.  Things did change.  Moyn gives a central place in his story to Richard Falk, a member of this group and an academic lawyer who eventually became very vocal in his opposition to the war, including an emphasis on illegal methods of conducting it.  The second person who features prominently in his paper is a more conservative critic, Telford Taylor, a military man who had been a prosecutor at Nuremberg, whose popular book Nuremberg and Vietnam: An American Tragedy (1970) condemned the war.  Taylor made the allegations of war crimes committed in Vietnam “respectable,” as he could not be seen as relying on spurious accounts from the far left or dismissed as a Communist sympathizer.  Taylor followed the post-My Lai trend of emphasizing war crimes, casting doubt on the whole idea of aggressive war from Nuremberg.  Taylor appreciated that “unlike at Nuremberg where it was obvious who had started World War II, the Vietnam era showed that one man’s aggressor was another man’s victim (and vice versa).” Continue reading "Aggression v. Atrocity in the History of International Law: From the Tokyo Trial to the Vietnam War"

The End of “Notice and Consent” as Meaningful Privacy Protection

Scott Peppet, Unraveling Privacy: The Personal Prospectus & the Threat of a Full Disclosure Future, 105 NW L. Rev. (forthcoming 2012), available on SSRN.

Scott Peppet’s article Unraveling Privacy: The Personal Prospectus & the Threat of a Full Disclosure Future has offered a fundamental challenge to reigning privacy paradigms in cyberlaw.  The old privacy law assumed that the right set of laws could help individuals hide embarrassing facts or disable invasive tracking.  The encroaching “full disclosure future” ensures that those who try to maintain secrets look like they have “something to hide.”  We used to be afraid of shadowy watchers collecting incriminating “digital dossiers;” now we worry over not measuring up when rivals reveal better “personal prospectuses” than our own.  Peppet’s elegant interweaving of social science and law renders us unable to rely on old privacy paradigms like “notice and consent” online.

Something to Hide

Traditionally, privacy law experts have assumed that a combination of markets and law can preserve privacy.  Firms will compete to offer more or less privacy.  Data collectors will provide customers with various “privacy settings” that tailor online services to optimize self-disclosure.  Some have proposed “personal data vaults” to manage the emanations of sensor networks that track movements and actions in real space.  Jonathan Zittrain’s classic article on “privication” proposed that the same technologies used by copyrightholders to monitor or stop dissemination of works could be adopted by patients concerned about the unauthorized spread of health information. Continue reading "The End of “Notice and Consent” as Meaningful Privacy Protection"

The Copyright Law is An Ass: A Brash New Installment in this Fascinating Ongoing Series!

Yvette Joy Liebesman, Downstream Copyright InfringersKan. L. Rev (forthcoming), available on SSRN.

This article is a fine example of smart and accessible copyright scholarship that identifies and clearly describes a perplexing aspect of the current law, and then succinctly proposes sensible solutions.  The somewhat startling problem that Saint Louis University Law Prof Yvette Joy Liebesman identifies is this: A consumer who purchases authorized downloads of musical recordings, intending to behave legally and in consummately copyright law compliant manner, may actually be guilty of copyright infringement if the songs she purchases in digital format turn out to infringe the copyrights of other songs, such as by including unauthorized samples of vocal or instrumental riffs.

Liebesman points out that based on the ways the pertinent statutory provisions of the Copyright Act were written and interpreted, had the same people purchased the same songs, but with the copies embedded in vinyl or written on a compact disk, they would not be vulnerable to liability infringement for owning them.  But the recording industry has been so eager to frighten off prospective unauthorized downloading of music that it persuaded Congress and the courts to construct a legal regime under which even legal downloaders are at risk, facing strict infringement liability for completely innocent acts of (e.g.) purchasing songs from iTunes and loading them on an iPod.  This group of potential defendants includes me, and most of you reading this. Continue reading "The Copyright Law is An Ass: A Brash New Installment in this Fascinating Ongoing Series!"

Access to Courts and the Democratic Order

In this comment on the Supreme Court’s October 2010 Term, Judith Resnik links together three cases – two of them among the Term’s blockbusters and a third that traveled beneath the radar screen – to explore issues of access to courts in modern America.  The blockbusters – AT&T Mobility LLC v. Concepcion, and Wal-Mart Stores, Inc. v. Dukes– have evident connections, as a host of commentators have already noted (and undoubtedly will continue to note in myriad forthcoming articles).  Concepcion held that the Federal Arbitration Act preempts a court’s ability to invalidate as unconscionable under state law consumer-contract clauses that required consumers to waive the right to obtain classwide arbitration.  Wal-Mart held that a class composed of female employees (perhaps as many as three million in total) could not be certified under Federal Rule of Civil Procedure 23.  In adopting constrictive views of Rule 23(a)’s “commonality” element and Rule 23(b)(2)’s injunctive-class-action element, Wal-Mart reduced the scope of federal class actions. But its holdings or dicta on a number of other points – requiring a “rigorous analysis” of Rule 23’s elements, suggesting a need for opt-out rights whenever class members seek monetary relief, and crushing the use of sampling methods to prove individual class members’ damages – have contributed equally to a sense that the Court has sounded the death knell for class actions.

Although too melodramatic a take-away from either Concepcion or Wal-Mart, the death-knell concern fits neatly into a storyline that has been building since the Class Action Fairness Act of 2005, as well as two cases in the October 2009 Term (Shady Grove Orthopedic Assocs. v. Allstate Insurance Co., and Stolt-Nielsen S. A. v. AnimalFeeds International Corp.): federal courts are exercising increasing control over the availability of class actions, whether in court or in arbitration.  And that storyline feeds into the larger storyline of an anti-consumer, anti-employee, pro-business Roberts Court. Continue reading "Access to Courts and the Democratic Order"

How Social Protest Infiltrates the Realm of Commercial Decision Making

The seminal socio-legal work of Neil Gunningham, Robert Kagan and Dorothy Thornton suggests that social activism is an important influence over firms’ inclination to comply with – and even exceed – regulatory environmental-protection requirements. They further acknowledge that corporations vary in their responsiveness to similar levels of societal pressure, and that the micro-mechanisms underlying this variation require further investigation. Similarly, a recent body of research in sociology and management investigates corporations’ responses to social protest. Yet, much of this literature investigates firms’ average or overall response to social protest, and not the variation among firms. The significance of Weber et al.’s article From Street to Suits: How the Anti-Biotech Movement Affected German Pharmaceutical Companies – stems from its focus on micro-level analysis of firms’ varied response to social protest.

Weber et al.’s research investigates “how external contestation manifests itself in the internal polity of organizations” (ibid, 109). Their empirical focus is on German pharmaceutical companies’ decisions to invest in the development of biotechnology given an anti-genetic social-movement activism during the 1980s. In order to answer this question, the authors collected press coverage, various primary documents, interviews and secondary sources and produced in-depth portrayal of the social movement and of the responses of six leading German pharmaceutical companies. Continue reading "How Social Protest Infiltrates the Realm of Commercial Decision Making"

Expanding the Canon

Devon W. Carbado and Cheryl I. Harris, Undocumented Criminal Procedure, 58 U.C.L.A. Law. Rev. 1543 (2011).

In most criminal procedure classes, Supreme Court cases focusing on immigration policing get short shrift.  Perhaps not coincidentally, much of the academic literature  – including the literature analyzing the role of race in policing – is also insufficiently attentive to relevant cases involving immigration policing.  In Undocumented Criminal Procedure, Devon W. Carbado and Cheryl I. Harris remind us of three important cases involving immigration policing, and highlight the ways in which these cases have structured the jurisprudential framework governing the role of race in “ordinary policing.”  Their efforts could not have come at a better time.

In December 2011, Assistant Attorney General Thomas E. Perez of the Civil Rights Division of the Department of Justice wrote a letter to Bill Montgomery, the County Attorney for Maricopa County, summarizing the results of a prolonged investigation of the Maricopa County Sheriff’s Office (MCSO).  The Department found “reasonable cause to believe that MCSO engages in a pattern or practice of unconstitutional policing.”  The letter continues:

Specifically, we find that MCSO, through the actions of its deputies, supervisory staff, and command staff, engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices….

That same month, the Civil Rights Division issued findings of similar misconduct by the East Haven police.  Deputy Assistant Attorney General Roy L. Austin Jr. stated: that the Department had found that:

[T]he East Haven Police Department engages in discriminatory policing against Latinos including:  targeting Latinos for discriminatory traffic enforcement; treating Latino drivers more harshly than non-Latino drivers after traffic stops; and intentionally and woefully failing to design and implement internal systems of control that would identify, track, and prevent such misconduct.   The pattern or practice of discriminatory policing that we observed is deeply rooted in the Police Department’s culture and substantially interferes with the ability of the Department to deliver services to the entire East Haven community.

The findings of these two investigations are deeply troubling.  Why is this happening? Continue reading "Expanding the Canon"

Political Oversight of Agency Decisionmaking

Nina A. Mendelson, Disclosing “Political” Oversight of Agency Decision Making, 108 Mich. L. Rev. 1127 (2010).

Administrative agencies are often said to possess (a) expertise and (b) accountability.  These are the attributes that Justice Stevens relied on in Chevron, for example, to justify judicial deference to agency “interpretation” that is really policymaking.  Both of these admirable characteristics are exaggerated, but neither is mythical.  What is to be done, however, when they conflict?

This is a recurrent question.  Whether and when agencies should be set up as independent commissions, the disagreement between the majority and the dissent in State Farm, much of the battle over regulatory review – all involved at least in part the question whether the president’s preferences, or “political” considerations, should trump the agency’s (expert) judgment.  One doctrinal locus of this dispute is the arbitrary and capricious test. Is it “reasoned decisionmaking” if an agency does something simply because the White House told it to?  State Farm and Massachusetts v. EPA suggest the answer is no.  Four, and arguably five, Justices in FCC v. Fox Televisions Stations  imply the answer may be yes, and a number of commentators – most recently, Kathryn Watts – have argued for judicial acceptance of political justifications for agency action. Continue reading "Political Oversight of Agency Decisionmaking"

Law in the Neighborhood of Morality and Convention

Nicholas Southwood, The Moral/Conventional Distinction, 120 Mind 761 (2011).

Law is related both to morality and to convention. Differently related, surely.  But how, exactly?  That should be easier to explain if we could say how morality and convention are related to each other.  But how easy is that?

Even as children, almost all of us understand the difference between saying that something is wrong, and saying that something “just isn’t done around here.”  We would say that rape is wrong no matter how commonly it occurs; but we wouldn’t say that passing the decanter of port to the right was wrong even if we found out that, where we happened to be, doing so breaches a hallowed custom.  Not wrong, strictly speaking, anyway, if we mean morally wrong.  We all understand the difference, at least until we’re asked to explain it.  (“And which kind are legal judgments?” –one might wonder: see answer below.) Continue reading "Law in the Neighborhood of Morality and Convention"

Plausibility, Civil Rights, and Discovery

In Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court substantially altered the pleading standard for civil litigants.  To proceed with a civil claim, plaintiffs must now allege enough facts in the complaint to state a “plausible” claim for relief. In her article, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, Professor Suzette Malveaux  superbly discusses how these recent cases have had a particularly dramatic impact on civil rights litigation.  The impact of Iqbal on this area of the law is often overlooked, and she does an excellent job of explaining how the plausibility standard will impact these litigants.

In her Article, Professor Malveaux begins by critiquing the Iqbal case, highlighting some of the many problems with this decision.  She notes that the Iqbal Court failed to consider the allegations in the case “as a whole,” that in practicality it is often difficult to separate out conclusory from nonconclusory assertions as the decision requires, and that the standard adopted by the Court appears to be a “probability test” rather than a plausibility inquiry. (P. 81-83.) She further accuses the Court of endorsing “judicial fact-finding” at the early stages of the proceedings. (P. 84.) Continue reading "Plausibility, Civil Rights, and Discovery"

Thinking About Post-Anarchism

Thomas Nail, ‘Constructivism and the Future Anterior of Radical Politics’, Anarchist Developments in Cultural Studies 2010: 1, 73-94

Amongst those who favor equality, there is, it might be said, a reluctance to confront its norms, premises and institutional tendencies. Yet, as a discourse and governance project, it is at least arguable that equality bears (or embraces) conventions of calculation, orderliness, categorization, legitimacy (as a precondition for equality or its result), boundaries and top-down assumptions of implementation and accomplishment. Unsurprisingly, critiques of equality, particularly more anarchist ones, tend to prefer difference, freedom, anti-identity politics, an aesthetic of non-equivalence, and open-ended non-institutional action.

Nail’s (2010) article, invested in building a new radical praxis, poses a way through and between these constructed polarities. While Nail doesn’t address equality directly, the issues he explores are hugely important to thinking more openly, and reflexively, about equality within the context of a radical change politics. At the heart of Thomas Nail’s article is the claim that radical politics needs to rebalance its focus; the almost exhaustive interest in cataloguing and pouring over what is wrong in the present needs to be supplemented more fully with greater interest in the social renewal posed by contemporary social experiments. Continue reading "Thinking About Post-Anarchism"

New Ideas for Agency Design

Rachel Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, available at SSRN.

One of the most interesting areas of current administrative law and political science scholarship is the attention being devoted to the design of administrative agencies. Some of this work is empirical, and much of it is interdisciplinary, the two buzz words for contemporary cutting edge scholarship in this area, and so many other areas as well. But the real source of this work’s value and promise –and an underlying source of both its empirical and interdisciplinary character– is that it takes law seriously without viewing it from the judicial perspective. The political science scholarship, such as David Epstein & Sharyn O’Halloran, Delegating Powers (1999) and David Lewis, Presidents and the Politics of Agency Design (2003), has begun to free itself from the idea that only politics matters, and looks at the way that legal structures, having been generated by politics, affect the governmental process. The legal scholarship, such as Lisa Schultz Bressman & Robert Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599 (2010) and Jacob Gersen, Designing Agencies: Public Choice and Public Law, in Daniel Farber & Joseph O’Connell, eds., Research Handbook on Public Choice and Public Law (2010), has begun to free itself from the idea that law is to be defined, or at least perceived, through judicial decisions, and looks at the way that it shapes, and is shaped by, executive and legislative actors.

Rachel Barkow’s Insulating Agencies: Avoiding Capture Through Institutional Design, exemplifies this approach. Barkow’s topic is agency independence, but she does not address the tired question of whether such independence offends the Constitution, either in its entirety or in its details. Not only does she ignore the old chestnuts of judicial doctrine in this area, such as Myers v. U.S., 272 U.S. 52 (1926) and Humphrey’s Executor v. U.S., 295 U.S. 602 (1935) but she resolutely resists having anything to say about the recently decided bit of Roberts Court weirdness, Free Enterprise Fund v. PCAOB, 561 U.S. ____(2010) (the aptly nicknamed Peekaboo case). Instead of the children’s game of discussing constitutional limits on the administrative apparatus, her concern is the basic, and extremely serious question of why we want agencies to be independent of political control and how we achieve that goal. Continue reading "New Ideas for Agency Design"

Lawyers v. Businessmen: Where Are the Bad Men?

Christine Parker, Robert Rosen & Vibeke Lehmann Nielsen, The Two Faces of Lawyers: Professional Ethics and Business Compliance With Regulation, 22 Georgetown Journal of Legal Ethics 201-248 (2009), available at SSRN.

In the glamorous/murky/elite/financially rewarding world of commercial law is it clients or lawyers who are the bad guys?  Put another way, does business corrupt law or do lawyers corrupt business?  This is the question that lies at the heart of Parker, Rosen and Nielsen’s paper.   Since the Savings and Loan scandals via WorldCom, Enron and latterly UK’s own Hackgate, corporate wrongdoing is often accompanied by the question, Where were the lawyers?  And as Big Law turns increasingly, well, ‘big’, the “is law a business or a profession” question is posed increasingly nostalgically, usually with deliberate exaggeration and answered only with speculation rather than evidence.  It is refreshing, therefore, to report on a study which is deals with the relationship between law and business empirically and with imagination which also deals with conceptually important questions.

Indeed, it is a central premise of professionalism that lawyers that they apply their specialist knowledge in the public interest.  That is lawyers should act to encourage lawfulness on the part of their clients.  They should encourage compliance.  Professional ethics courses tend to concentrate on the idea that it is a Holmesian ‘bad man’ client that pushes lawyers into ethically grey areas.  In particular that client (usually a businessman or criminal defendant–sometimes both) exploits a lawyer’s duty to zealously defend their client’s interests.  Corporate clients, as sophisticated players, with deep pockets and repeat business on offer, are able, so the theory goes, to corrupt their lawyer’s into finding ways of playing the system to the client’s advantage.  In simple terms the theory is lawyers good/clients + markets bad.  And, of course, markets win.  Parker and her colleagues ask the question: Is this an empirically testable proposition? And, once tested, is it an accurate proposition which is borne out by the evidence?  For those of you with short attention spans the answers are yes it’s testable and no, it’s not an accurate proposition. Continue reading "Lawyers v. Businessmen: Where Are the Bad Men?"

Philosophizing about Discriminatory Gifts

Matthew Harding, Some Arguments Against Discriminatory Gifts and Trusts, 31 Oxford J. Legal Stud. 303 (2011).

In 2009, the Illinois Supreme Court upheld a decedent’s right to make a gift with a religious restriction, the “Jewish Clause.”  Estate of Feinberg was extensively reported, bitterly litigated, and placed a white-hot spotlight on gifts with restrictive or discriminatory conditions attached.  In Some Arguments Against Discriminatory Gifts and Trusts, 31 Oxford J. Legal Stud. 303 (2011), Matthew Harding presents arguments to eliminate the freedom to discriminate in the disposition of property, whether for charitable or private purposes.  Harding’s primarily-UK focus and philosophical arguments offer a wider and refreshing view of this public policy debate.  The end result is a sharpened understanding of our own system.

Harding’s thesis is that the common law can and should develop to eliminate the freedom to discriminate in the disposition of property by gift or trust, whether for charitable or private purposes.  He rejects the counterargument of a donor’s personal autonomy.  Harding divides his article into two equal parts:  Can the common law prohibit discriminatory gifts and, should the common law do so? Continue reading "Philosophizing about Discriminatory Gifts"

Parchment and Obligation

Daryl Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011).

Presidents of the United States do not unilaterally extend their term of office, jail all their opponents, or rule by decree. The Supreme Court does not (or at least does not usually) declare its favored candidate to be President. Congress does not abolish the Supreme Court or create an official religion. Why not?

In an important new article, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011), Daryl Levinson reminds us that these familiar facts about our world are deeply perplexing and that the usual explanations for them are manifestly inadequate. Continue reading "Parchment and Obligation"

Law and Borders, Revisited

Marketa Trimble, The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, 22 Fordham Intell. Prop. Media & Ent. L.J, (forthcoming 2012), available on SSRN.

Fifteen years ago, David Post and David Johnson published what some still regard as the seminal paper of cyberlaw scholarship:  Law and Borders: The Rise of Law in Cyberspace.  Post and Johnson argued that because cyberspace was defined, in a way, by the very absence of territoriality, cyberspace should be governed by laws and lawmakers not tied in traditional ways to territorial states.  That paper provoked a reply, Against Cyberanarchy, by Jack Goldsmith, and those two positions – “cyberspace is different”; “no, it isn’t” — have pretty much defined the landscape of cyberlaw ever since.  Later scholars have had little choice but to explore the implications and details of staking out intermediate positions.  When and how does cyberspace differ, and what do we do about it?

Marketa Trimble’s article approaches this topic by revisiting a species of the territorial question that prompted Law and Borders.  How can and should the law address behavior online by people who are physically located in one place but who wish to create or manage online identities in other places?  Trimble calls this the challenge of “cybertravel,” a phenomenon that is hardly new but that has taken on renewed significance as Internet technologies (and governments) have caught up to the many ways in which cybertravelers can be in more than one place at a time. Continue reading "Law and Borders, Revisited"