Yearly Archives: 2012
Mar 16, 2012 Elaine CraigEqualityJotwell
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"
Mar 14, 2012 Kerry RyanTrusts & Estates
“It is not a matter of the cure being worse than the disease. It is rather, that the cure has become the disease.” 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of our income and transfer tax bases; and 3) as a result the grantor trust rules (or at least most of them) should be repealed.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. However, Ascher’s is by far the most comprehensive and, in my opinion, persuasive of the three. Continue reading "Repeal the Grantor Trust Rules"
Mar 12, 2012 Serena MayeriJotwellLegal History
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"
Mar 9, 2012 Robert RosenCorporate Law
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"
Mar 7, 2012 Michael C. HarperWork Law
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"
Mar 5, 2012 Donald TobinJotwellTax Law
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"
Mar 2, 2012 Anne Joseph O'ConnellAdministrative LawJotwell
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"
Feb 29, 2012 Christopher SprigmanIntellectual Property LawJotwell
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"
Feb 27, 2012 Lonny HoffmanCourts LawJotwell
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"
Feb 24, 2012 Jonathan SimonCriminal LawJotwell
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"
