Yearly Archives: 2012
Sep 12, 2012 Michael LivingstonTax Law
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"
Sep 11, 2012 Camille Gear RichFamily LawJotwell
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 ”"
Sep 10, 2012 Rebecca TushnetJotwellTechnology Law
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"
Sep 7, 2012 Roman HoyosJotwellLegal History
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"
Sep 5, 2012 Carole SilverJotwellLegal Profession
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 press 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"
Sep 4, 2012 Val NapoleonEqualityJotwell
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. 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. 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"
Aug 23, 2012 JotwellJotwell
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.
Aug 20, 2012 Howard M. WassermanCourts LawJotwell
• 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"
Aug 16, 2012 Joseph SlaterJotwellWork Law
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”"
Aug 13, 2012 Peter ShaneAdministrative LawJotwell
• 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”?"
