Monthly Archives: October 2012

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?"