Monthly Archives: April 2013
In The Great Persuasion: Reinventing Free Markets since the Great Depression, Angus Burgin, a historian at Johns Hopkins, offers the fascinating story of a trans-Atlantic group of intellectuals who, beginning in the 1930s, came together in an effort to articulate and promote an alternative vision to the then-dominant ideas of Keynesian economics. In this short essay, I describe Burgin’s impressive contribution to the intellectual history of modern conservatism, and then offer some concluding thoughts on neoliberalism as a constitutional value today.
The basic story of the resurgence of conservatism, including free market ideology, in the second half of the twentieth century is well known. What this fine book adds is a sensitive and nuanced portrait of those thinkers—economists, mostly, but not exclusively—who, through several generations of struggle, among themselves and with their antagonists, shaped the ideas of what has come to be known as neoliberalism. Burgin’s overriding argument is that these people made possible the eventual triumphs of free market ideas in the public sphere. Although often articulated in abstract and technical terms, these were ideas that would have a profound impact on American life and politics. Continue reading "The Global Community of Ideas that Created Neoliberalism"
Renee Newman Knake, Democratizing Legal Education, 45 Conn. L. Rev. (forthcoming, May 2013), available at SSRN.
What are the public duties of law schools? Specifically, what duty, if any, do law schools have to educate people outside of the profession, such as clients, would-be clients, and ordinary citizens and consumers? Do law schools have a duty to promote public access to legal information and services?
Most of the recent call for U.S. legal education reform has focused on the interests of lawyers and problems of access to the profession, such as rising law school tuition, the contraction of the legal job market, and law schools’ duty to provide prospective lawyers with accurate job market data. Such concerns about “the economics of legal education” for lawyers are the subject of a recent letter from a coalition of legal academics to the ABA Task Force on the Future of Legal Education. Continue reading "Law for All? The First Thing We Do, Let’s Educate the Non-Lawyers"
Matt Adler’s book Well Being and Fair Distribution is first an articulation and then a defense of a particular social welfare function with which analysts and critics, whether from academia or elsewhere, can morally assess various large scale governmental regulatory or legislative decisions, such as the decision to use public moneys to build a dam or a highway, or to discontinue funding of the Violence Against Women Act, or to re-authorize No Child Left Behind, or to regulate carbon emissions in some way, or to continue the use of drones in warfare, or to close Guantanamo Bay, or to shrink or expand the role of the federal government in the War on Drugs. The means of moral evaluation of these large governmental decisions for which Matt argues is consequentialist — it is the outcomes of choices that determine the morality of those choices, rather than any other attribute of the actions or any constellation of motives of the actors that do so –– and, second, welfarist — it evaluates those decisions by reference to their propensity to increase or diminish human wellbeing –- and, third, prioritarian – meaning that it gives priority, or greater weight, to increases in the wellbeing of the less well off, when comparing the relative moral virtues of possible policy changes. So, one policy choice is morally better than another if it increases the wellbeing of those who are affected, as measured by the utility of their alternative life histories, and as ascertained by the other-regarding ideal preferences of a sympathetic spectator, with the wellbeing of the increase to the less well off given additional weight. Thus, the title of the book: this is a defense of a consequentialist mode of evaluating decision making that centers human wellbeing and fair distribution both.
Obviously for those of us who have spent time with it, Matt’s book stands as a monumental achievement; it is philosophically and economically sophisticated, and exhibits a mastery of multiple literatures, from the analytic-philosophical work of the last three decades on identity, equality, and wellbeing, as well as a sizeable normative economic literature spanning three quarters of a century on social welfare functions and their various competitors, most significantly of course cost-benefit analysis. It is also, though, monumentally important, given the current state of normative jurisprudence, and for three reasons not made obvious by the book itself: the first, internal to utilitarian jurisprudence, the second, on debates between utilitarian and deontological theories of legal evaluation, and third, in legal scholarship more generally. I want to spell those out and then I will then raise some questions and objections about its methodology. Continue reading "Justice and Utility"
Deven R. Desai, From Trademarks to Brands, 64 Fla. L. Rev. 981 (2012), available at SSRN.
As Stacey Dogan noted in her recent review of Bob Bone’s Taking the Confusion Out of “Likelihood of Confusion”: Toward a More Sensible Approach to Trademark Infringement, trademark law is at a bit of a crossroads. Scholars increasingly question basic tenets of trademark law and seek explanations for our blinkered theories of trademarks. Among recent attempts at comprehensive trademark law frameworks, some are good, some great, some … not.
The most insightful and satisfying of these is Deven Desai’s From Trademarks to Brands, which continues a line of research Desai started with Spencer Waller several years ago. From Trademarks to Brands mines the “brand theory” marketing literature for wisdom about the continuous expansion of trademark law. He struck a vein. Desai begins by disaggregating three views of brand value in the literature: (1) the corporate view, in which the firm owns and controls the brand, with consumers passively receiving brand information; (2) the noncorporate view, in which consumers and communities construct brand value; and (3) a synthesized view, in which all these stakeholders co-create brand value by using the brand as an information resource. Continue reading "Of Trademarks and Brands"
Abigail R. Moncrieff, When the Tenth Justice Doesn’t Bark: The Unspoken Freedom of Health Holding in NFIB v. Sebelius, Boston Univ. School of Law, Law and Economics Research Paper No. 12-44, available at SSRN.
Given the intense popular, political, and academic interest in the challenge to the Affordable Care Act, it comes as no surprise that the Supreme Court’s decision in NFIB v. Sebelius would launch a flotilla of articles about that decision, particularly since the outcomes (with respect to both the individual mandate’s constitutionality and the expansion of Medicaid) were not what conventional academic wisdom had predicted. In the coming months and years, we will undoubtedly spend a good deal of time thinking through and reading about the possible implications of what the Court did, and didn’t do, in that case.
But the most intriguing and enjoyable article that I have read so far about NFIB focuses not on what the Supreme Court did or didn’t do, but on what Solicitor General Donald Verrilli chose not to do in defending the individual mandate against a commerce power challenge before the Court. In “When the Tenth Justice Doesn’t Bark: The Unspoken Freedom of Health Holding in NFIB v. Sebelius,” Abigail Moncrieff hypothesizes that the Solicitor General deliberately chose to forgo raising a more persuasive legal argument regarding the individual mandate’s constitutionality and that this politically strategic decision represents a previously unexplored terrain of popular constitutionalism. Continue reading "Some Things Are Better Left Unsaid: The Argument the Solicitor General Didn’t Make in NFIB v. Sebelius"
In recent years, with the increased internationalization of the judiciary, we have witnessed growing support from advocates, policymakers, and judges for applying international and foreign law in a domestic context. To be sure, U.S. courts have demonstrated greater reluctance toward this approach than many courts in other parts of the world. As Margaret Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts, has noted, “justices of some foreign constitutional courts traverse the world of global jurisprudence with an agility that leaves an American judge breathless.” But what happens when judges, intending a comparative approach, incorrectly interpret foreign jurisprudence? And even when these judges get the law right, are they looking at the right thing when they focus on comparative law rather than comparative practice? Rachel Rebouché considers these complex questions concerning international and comparative law as she tracks important global developments in abortion law over the past few decades.
Rebouché starts with a challenge to the conventional wisdom that U.S. abortion law symbolizes protection of women’s constitutional rights while German abortion law symbolizes protection of fetal constitutional rights. While that dichotomy may have been true when Mary Ann Glendon first described it in 1987, Rebouché argues, the United States and Germany have, in fact, moved in opposite directions concerning abortion law and practice and the availability of abortion services. Developments in the U.S. since Roe v. Wade have made the constitutional right to an abortion “unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas.” By contrast, abortion law and practice developments in Germany have gone in the opposite direction, expanding access to abortion, rather than limiting it in the interest of protecting fetal rights. Though a 1975 decision by the Federal Constitutional Court of Germany (“FCC”) supported protection for “unborn life,” more recent developments have prioritized access to abortion—a position that sounds in the register of women’s rights—above fetal rights. A 1993 FCC decision reiterated that abortion is an unlawful act, but eliminated criminal punishment upon demonstration of proof of counseling (which is readily available in most regions of Germany at counseling centers that tend to be pro-choice) before the twelfth week of pregnancy. Moreover, state welfare funds are available in cases of financial need, which is interpreted so generously by most regional legislatures that in some regions, the government pays for nearly every abortion. The broad availability of state-funded abortion services has led some commentators to argue that “Germany, in effect, permits abortion for any reason.” While the U.S. and German legal developments have had enormous influence on the constitutional decisions of national courts in Colombia, South Africa, Portugal, and Mexico, these latter national court decisions, Rebouché argues, have stopped short of engaging with the “implications and evolution of abortion jurisprudence in the United States and Germany.” More troublingly, these national court decisions have, at times, misinterpreted U.S. and German law. Continue reading "Comparative Pragmatism versus Comparative Formalism in the Abortion Context"
Nancy Moore’s Intent and Consent in the Tort of Battery: Confusion and Controversy is something every Torts professor should read. This is not only because it is interesting and well written and engages with canonical cases. It is also because it will teach many professors to question something they thought they knew: the meaning of “intent” in the tort of battery. While the references to Vosburg and the Restatement (Second) on battery may seem a bit old-fashioned to some, such a judgment would be ill-founded. Many aspects of battery law are ambiguous, incoherent, vague, and contradictory; moreover, from informed consent in medical malpractice to unwanted touchings in sexual harassment to the ever-spreading role of comparative fault, it is no longer adequate to pretend that intentional tort law can reasonably be relegated to the subject of schoolboy pranks.
While Moore discusses both intent in battery and (relatedly) the interplay of intent, consent, and mistaken defendant beliefs about consent, the lion’s share of her attention goes to intent itself. Restatement (Second) § 13(a) requires a plaintiff bringing a battery claim to show that the defendant acted “intending to cause a harmful or offensive contact with the person of the other or a third person.” According to Moore, courts have disagreed over the scope of this phrase, and, in particular, over whether it is sufficient that the defendant have intended to make contact (so long as that contact does turn out to be harmful or offensive), or whether it is necessary that the defendant have intended to make contact and have intended to harm or offend the plaintiff. She calls the former the “single intent rule” and the latter the “dual intent rule.” Continue reading "Moore on Intent and Battery"
Most of us never have to be concerned about being forsaken. We have permanent homes, we have family doctors, we have jobs… But imagine you have none of these things. You don’t know where you are going to sleep tonight. You do not have access to regular health care. You have no employer…You are consumed by fears about your physical safety. You are afraid to contact the police. In these circumstances, you are largely on your own, easily forsaken.
It is difficult to imagine a more intentional account of vulnerability than the above passage introducing British Columbia’s recently released Report of the Missing Women Commission of Inquiry into the disappearance and murder of more than sixty Vancouver women – most of whom had been involved in the city’s Downtown Eastside sex trade. It is also difficult to imagine an opening sentence that more explicitly constitutes a “vulnerable other” subject position. Continue reading "Forsaking Vulnerable Sex Work"
The question of how it feels to do the work we do receives little attention in mainstream legal literature. We tend to treat the very acknowledgement of our work’s emotional aspects as downright unlawyerlike — a challenge to law’s rational and rigorous essence. Yet as this book beautifully illustrates, the question of how it feels to do our work cannot be cordoned off from the issues at the center of the teaching and practice of law: what it means to be an ethical, zealous, effective counselor and advocate with a satisfying, sustainable legal career.
Susannah Sheffer sheds light on all these issues, though she sets out to answer a narrower question: what it is like to be a capital defense lawyer specializing in post-conviction challenges. What is it like for these lawyers, she asks, not in the courtroom or the offices of the capital habeas unit, but “in the middle of the night, in the pit of the stomach, in their last visits or phone calls with clients who are about to be taken to the execution chamber, in the mornings after, in their lives with their families, in their dreams and flashbacks and quiet moments alone?” What is it like to do this work in the face of incomprehension and even hostility from the larger community? What motivates such lawyers and how do they keep doing what they do? Shaffer explores these issues in conversations with twenty capital defense lawyers in this insightful and deeply affecting book. Continue reading "What Does it Feel Like to be a Lawyer?"
Who among us has not relished the extraordinary gift the Supreme Court gave to civil procedure teachers in the form of J. McIntyre Machinery, Ltd. v. Nicastro, allowing professors to punctuate the already absurd personal jurisdiction case line with the story of the unlucky Mr. Nicastro (he who lost four fingers to a metal shearing machine in New Jersey), with nary a place to sue? (And, no doubt reserving that one remaining finger for . . . personal jurisdiction jurisprudence.) Moreover, to ensure us a near-perfect teaching vehicle, the Court — as Professor Stephen E. Sachs notes in the wonderfully entertaining and thought-provoking How Congress Should Fix Personal Jurisdiction — “bogged down in an incoherent three-way split.”
Rather than make a futile attempt to make sense out of McIntyre, or to rationalize the mess away, Professor Sachs whole-heartedly forges into the personal jurisdiction thicket (which he labels a “dismal swamp”) with his own solution. Actually, an entire array of solutions. Sachs takes up McIntyre’s invitation to Congress to provide a federal forum for cases like Nicastro’s, and he sets forth a detailed federal statutory scheme for authorizing a federal forum based on existing venue rules. In particular, he is keen on securing federal forums to enable plaintiffs such as Nicastro to sue multinational corporations, such as McIntyre, that might otherwise evade responsibility for injuries to U.S. citizens because of existing state personal jurisdiction doctrine. Sachs notes that his proposal to create federal personal jurisdiction based on a venue model is not new, but suggests that other such attempts have been flawed in key respects (which he aims to rectify). Continue reading "Fixing Personal Jurisdiction"
Kenneth A Bamberger & Diedre K. Mulligan, PIA Requirements and Privacy Decision-Making in US Government Agencies in Privacy Impact Assessment (D. Wright & P. De Hert eds. 2012) available at SSRN.
Many large law firms are experiencing increased demand for their compliance and risk management services. They are writing compliance manuals and organizing and teaching training programs. They compete with consulting and accounting firms for this work.
Some of this work requires skills not traditionally found in law firms. To be sure, the translation of regulations into simpler language for manuals and the oral communication skills necessary for trainings are commonplace. But, the best internal controls require knowledge of the pressures on the corporate actor. And they require understanding the actor’s perspective, in order to motivate their commitment to compliance. Lawyers known for their “judgment,” often had such knowledge and understandings. But many lawyers relied on their independence to avoid engagement with what they belittled as “corporate politics and in-fighting.” Others would rely on their independence to emphasize that they simply gave options to their clients and were not responsible for what their clients did. Continue reading "Inside the Black Box"
When I returned from the 2013 AALS Annual Meeting, I discovered Professor Kevin M. Stack’s latest article, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012), waiting patiently for me. As someone who teaches both Administrative Law and Statutory Interpretation/Legislation, I picked it up with interest; although, given all that has been written about statutory interpretation, I must confess that I really couldn’t imagine that there would be anything new to say about interpreting regulations. Yet, I remembered that each year, around the time my students realize that they will certainly be tested with a Chevron-like hypothetical on their final exam, I’m asked how to approach the analysis. After they’ve determined that Chevron applies (Chevron step zero), that Congress did not have an intent as to the precise issue before the court (Chevron step one), and that the agency’s interpretation of the statute is reasonable (Chevron step two), I have always told them that the final step is simply to apply the regulation to the fact pattern using the traditional tools of statutory interpretation. Was my direction wrong? I wondered.
Lest I hold you in suspense, let me explain Professor Stack’s thesis immediately. He believes that courts should use regulatory purposivism to interpret regulations. He defines regulatory purposivism in this way: a court should ask whether an interpretation of a regulation is (1) permitted by the regulation’s text, and (2) consistent with the purposes as stated in the regulation’s statement of basis and purpose (and/or text). If a court answers yes to both questions, then the interpretation is “reasonable,” “permissible,” “plainly” right, at essence, controlling. (If I may digress, I wondered, was he advocating a new two-step deference approach? God forbid!) He suggests that courts should not give meaning to a regulation that the text will not bear, but he adds that neither should courts give a regulation a meaning that the written statement of basis and purpose will not bear. In essence then, he advocates for a text-based approach to purposivism! Continue reading "A Textualist Approach to Purposivism in the Regulatory Arena"
Elizabeth Tippett, Robbing a Barren Vault: the Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, 29 Hofstra Lab. & Emp. L. J. 433 (2012).
Melissa Hart, Civil Rights and Systemic Wrongs, 32 Berk. J. of Emp. & Lab. Law, 455 (2011).
It has been less than two years since the Supreme Court’s controversial decision in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). During this short period the Court’s opinion has been interpreted by numerous lower courts. It also, not surprisingly, has been the subject of a substantial amount of commentary in law reviews and numerous proposals for legislative reform to restore a promise of class action challenges to employment discrimination that the Dukes decision allegedly shattered. Drawing from this commentary, I would choose these two very different articles as useful guides for tracking the impact of Dukes on employment discrimination class action litigation. The articles, in my view, together make the case that at least in the absence of legislative or judicial qualification, the Dukes decision’s 5-4 split holding on the commonality requirement in FRCP 23(a)(2) may have less of an impact than the Court’s unanimous dicta on the limited remedies allowed for Rule 23(b)(2) classes and the unavailability of statistical modeling to facilitate the certification of Rule 23(b)(3) classes. Continue reading "The Uncertain Impact of Wal-Mart v. Dukes"
Kelly, Daniel B., Toward Economic Analysis of the Uniform Probate Code, 45 Univ. of Mich. J. of Law Reform 855 (2012), available at SSRN.
In his article, Toward Economic Analysis of the Uniform Probate Code, Dan Kelly fills a significant gap in the inheritance law literature. As he notes, a number of scholars have brought the lens of economic analysis to bear on trusts but few, if any, have taken a comprehensive look at intestacy and wills using the tools of economic analysis. Kelly takes on this task and the result is an important contribution to the field.
Kelly begins by tracing the important historical move from formalism to a functional view of inheritance law and gives the reader a succinct synopsis of the work of important inheritance law scholars like John Langbein and Larry Waggoner. He then describes the work of a younger generation of scholars like Rob Sitkoff, who has brought empiricism to trust law in particular. This literature summary is helpful in identifying the scholarly gap in the area of intestacy and wills, i.e., succession law. Continue reading "Succession Law Through an Economic Lens"
Alberto Alemanno, Is There a Role for Cost-Benefit Analysis Beyond the Nation-State?: Lessons from International Regulatory Co-operation, in The Globalization of Cost-Benefit Analysis in Environment Policy (Oxford University Press, 2013) available at SSRN.
When I seek reading suggestions I am especially interested in recommendations for pieces that might not normally cross my desk. The work I am discussing here, “Is There a Role for Cost-Benefit Analysis Beyond the Nation-State?: Lessons from International Regulatory Co-operation” by Alberto Alemanno, falls into that category. The topic – the legal analysis of international regulatory cooperation regarding non-tariff barriers to trade (e.g., labor, environmental, or health and safety regulation) — is distinctly not tax. But this book chapter, which examines the international convergence in specifying procedures for setting regulatory standards, provided an energizing boost to my own thinking about potential harmonization in the international tax arena through cooperation on a “non-substantive” level. Before discussing why I found this chapter engaging for a tax scholar, a quick overview of the thesis may be helpful.
The article starts from the premise that trade liberalizing goals have pushed states, through the WTO, to reduce trade barriers but that their success has been limited where the trade barriers are in non-tariff form (such as environmental regulations). In that context, states have shifted to what is characterized as convergence with respect to “how” they determine the appropriate substantive regulation to put in place – i.e. “procedural harmonization.” Underlying this shift are two assumptions: (1) it is easier for states to agree to procedures that they will follow in setting these kinds of regulations, and (2) that procedural harmonization can/will lead to harmonization of the ultimate substantive decisions. The author provides examples of such harmonization – the Technical Barriers to Trade Agreement (TBT) established at the end of the Uruguay Round required members to ground their regulatory measures in “international standards, guidelines or recommendations, where they exist” and if not to then either provide a “scientific justification” or “prove the ‘necessity’ of the measures adopted.” The author considers the harmonization via this agreement to be unsatisfactory in stopping nontrade barriers. Therefore, he devotes much of the chapter to arguing in favor of a “procedural” requirement that he contends could further reduce substantive divergence – a requirement of international cost-benefit analysis and transparency. The discussion of how cost-benefit analysis might meet this goal was interesting on its own terms. But I was drawn to the background context in which the entire conversation was taking place – a world in which agreement on substance was difficult, agreement on procedure was easier, and agreement on the latter was expected to generate convergence regarding the former. I have been thinking about these questions in the context of international tax – in particular the shift away from attention to tax competition (which was perceived as seeking agreement on substance – or at least rates) and towards information exchange and disclosure on a grander scale. Continue reading "Reading to Challenge Your Tax Thinking"
With such a title, how could a tort scholar not want to read the new working paper by Laposata, Barnes, and Glantz? The Restatement plays a very prominent role in tort law; many courts cite its provisions. The thought that the tobacco industry may have influenced its development is unsettling.
The authors present a fair amount of worrisome evidence of efforts by tobacco lawyers to influence the Restatement, especially the Second Restatement, under the direction of Reporter William L. Prosser. The evidence is largely circumstantial. Drafts of various parts appear to change after tobacco lawyers intervene. The final draft of Restatement §402A, on products liability, includes an explicit exemption for “good tobacco.” Continue reading "Lobbying and the Restatement of Torts"
Decock’s judicious and insightful book participates in the rediscovery of the theological foundations of modern Western law. With great precision he uncovers the debt that our contract law owes to early modern Catholic scholastic theologians such as Domingo de Soto, Luis de Molina, Leonardus Lessius, and Francisco Suárez. These writers treated contracts not only as devices for the exchange of property. They understood that contracting involved moral choices that could advance or retard justice and the prospects for the salvation of one’s soul. In order to clarify these ethical dilemmas for Catholic confessors and for laymen wrestling with their consciences, scholastic theologians commented upon the ordinances of their own communities and the Roman law used throughout late medieval Europe (the ius commune). Their works influenced early modern canonists, civilians, and natural lawyers and, through them, left an important mark on modern European and American contract law.
Decock focuses on how the theologians’ speculations led to the rise of the principle of “freedom of contract,” understood as the imposition of legal obligation solely through the consent of the parties. The late medieval ius commune, drawing on Roman law, had allowed the creation of legal obligation through mutual consent only in certain areas, such as sales, leases, and partnership. James Gordley and other distinguished legal historians have noted that scholastics went well beyond this inheritance to craft a generalized, consensualist “freedom of contract.” But why in the sixteenth and early-seventeenth century? The dominant interpretation has been that the acceleration of trade in the early modern period and the stirrings of “market capitalism” invited moral theologians to consider commercial transactions not adequately treated in the ius commune. Although Decock accepts this interpretation as a partial explanation, he innovates by insisting that theologians thought that freedom of contract would facilitate the saving of souls. The greater the realm of freedom among contracting parties, the greater their ability to pursue virtue, accept moral responsibility, and encourage trust—or the reverse. Continue reading "Bargaining with the Soul at Stake: Early Modern Catholic Scholastics and Contract Law"