Yearly Archives: 2012
Jul 16, 2012 Susan MorseTax Law
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"
Jul 16, 2012 A. Michael FroomkinFamily LawJotwell
Continue reading "Meet the Editors"Jul 15, 2012 A. Michael FroomkinFamily Law
Continue reading "Call for Papers"Jul 15, 2012 A. Michael FroomkinFamily LawJotwell
Continue reading "Jotwell Mission Statement"Jul 12, 2012 Andres GuadamuzJotwellTechnology Law
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"
Jul 9, 2012 Allison TirresJotwellLegal History
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"
Jul 5, 2012 Eli WaldJotwellLegal Profession
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"
Jul 2, 2012 Janet WalkerCourts LawJotwell
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"
Jun 28, 2012 Marcia L. McCormickJotwellWork 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"
Jun 27, 2012 JotwellJotwell
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.
