Monthly Archives: September 2013

To Praise Testator’s Speech

David Horton, Testation and Speech, 101 Geo. L.J. 61 (2012).

Professor David Horton argues that testation is a form of expressive speech that may raise Constitutional concerns. In doing so, he reminds us of a basic reality—a will that disposes of property is also the will of an individual speaking to his or her family, friends, and community. Legal trends that emphasize efficiency over the testator’s individual voice are troubling.

Horton begins by examining three traditional analogies used by courts in deciding trust and estates cases—property, contract, and corporate law. In describing each analogy, Horton notes that none of these is spot on, there is an ill fit associated with each. This provides the intellectual space for other theories and perspectives, including speech. Horton acknowledges that his conceptualization of testation as Constitutional speech is also not a perfect fit; nevertheless it offers an intriguing lens through which to view some difficult cases and doctrines. Continue reading "To Praise Testator’s Speech"

Redressing the Harm of Death

Sean Hannon Williams, Lost Life and Life Projects, 87 Indiana L.J. 1745 (2012).

Sean Hannon Williams’ Lost Life and Life Projects tackles “wrongful death damages from the perspective of individual justice accounts of tort law.” Wrongful death damages—or, more accurately, their inadequacy—have long troubled tort scholars. Lately, as Williams shows, their shortcomings have been a particular sore point for economically oriented tort scholars.

The early common law of torts did not recognize any damages at all for wrongful death. Tort actions were personal and they died with the victim. Legislatures soon responded to this gap by passing two different kinds of statutes. One kind—survival statutes—enabled the estates of those wrongfully killed to recover the damages to which the dead would have been entitled had they not died (e.g., damages for medical treatment prior to death). The other kind—wrongful death statutes—addressed relational harm. Wrongful death statutes permit intimate relatives of the victim to recover for harm that they have suffered from her death (e.g., loss of financial support). Neither statute addressed the harm to the victim of her own premature, wrongful death. Only recently has there been any movement to remedy this gap by awarding damages for the victim’s lost “enjoyment of life.” Williams’ project is to bolster the case for such damages, in the name of justice to those who have lost their lives. Continue reading "Redressing the Harm of Death"

Recognizing and Rethinking Federal-State Tax-Base Conformity

Ruth Mason, Delegating Up: State Conformity with the Federal Tax Base, 62 Duke L.J. 1267 (2013).

In contemporary governance, while the U.S. Constitution recognizes the fifty states as sovereign entities, federal and state governmental policies and operations are functionally quite intertwined.  Nevertheless, state governments frequently like to show flashes of independence, particularly on hot button political issues.  Hence, we have seen states like California and Massachusetts getting ahead of their federal counterparts in adopting laws and policies to protect the environment and embrace gay marriage.  On the opposite side of the political spectrum, we have states like North Dakota, Texas, and Arizona challenging federal laws and policies regarding abortion rights, health care, and immigration.

Tax policy ranks among the more heated issues in modern politics.  Politicians argue a lot about what rates to apply to which taxpayers, but the tax policy debate is not limited to tax rates.  It is strange, therefore, just how little state individual income tax regimes differ from their federal counterpart.  State tax laws tweak the federal model here and there around the edges, but in the main, all of the states that impose a broad-based income tax rely either explicitly or implicitly on federal tax laws to define their tax base.  In her thoughtful article, Delegating Up: State Conformity with the Federal Tax Base, Ruth Mason thoroughly documents and persuasively challenges federal and state lawmakers to think more carefully about the consequences of this phenomenon. Continue reading "Recognizing and Rethinking Federal-State Tax-Base Conformity"

How Are Professional Service Firms Governed?

The leadership role in law firms and other professional service firms (PSFs) tends to be either a residual characteristic or is defined by the “great man” ideal (think of Paul Cravath and his vaunted system). Modern versions exist still: the recently departed Joe Flom of Skadden and Marty Lipton of Wachtell were exemplars of visionary law firm leaders who created great law firms. However, since around 1985, PSFs and law firms have become more anonymous in their leadership as the bureaucratized firm supersedes the charismatic individual.

Usually when scholars study PSFs—and for purposes of this review I focus on law firms—the entire firm is the unit of study rather than its management or governance. If we think of Nelson’s Partners with Power, Starbuck’s Keeping a Butterfly and an Elephant in a House of Cards, or Wald’s Smart Growth: The Large Law Firm in the Twenty-First Century, leaders, senior partners, and others flit by, but they essentially subsist in an environment that is expressed as collegial and lacking in explicit hierarchy. Continue reading "How Are Professional Service Firms Governed?"

The National Security Courts We Already Have

Robert Timothy Reagan, Fed. Jud. Ctr., National Security Case Studies: Special Case-Management Challenges (2013).

One of the longer-lasting consequences of the “Summer of Snowden” may well be the increased attention paid to the Foreign Intelligence Surveillance Court (FISC)—the special, secrecy-laden tribunal created by Congress in 1978 to oversee the U.S. government’s foreign intelligence activities. Among other things, greater public knowledge of the FISC’s role in both approving and circumscribing the government’s use of its secret surveillance authorities has rekindled the decade-old debate over the need for Congress to create special “national security courts.”

The animating justification for such tribunals is that, like the FISC, they would be in a better position than the ordinary Article III district courts to reconcile the central tension in national security adjudication: Balancing the secrecy pervading most national security and counterterrorism policies with the need to provide victims of governmental overreaching a forum in which to vindicate their statutory and constitutional rights. Indeed, although they have varied (at times, dramatically) in their details, proposals for specialized national security courts often hold out the FISC as the model upon which such tribunals can—and should—be based. To similar effect, many of the proposed reforms spurred by Snowden’s revelations have focused on increasing the volume and scope of litigation handled by the FISC, rather than shunting more of these issues into the federal district courts. Continue reading "The National Security Courts We Already Have"

Empire Before Nationhood

One of the challenges of reviewing Eliga Gould’s international history of the American Revolution, Among the Powers of the Earth, is that the book makes you feel like you’re looking at history through a 360-degree lens. A legal, diplomatic, and intellectual history spanning from the mid-18th century to the declaration of the Monroe Doctrine in 1823, the book situates the Revolution in the context of the evolving law of nations in a strikingly rich and detailed account. Everything, it seems, is in there.

Partly it’s Gould’s writing style. Rich in narrative and streamlined in argument, its movements back and forth between the two are unlabored. Continue reading "Empire Before Nationhood"

Faking It

Nancy Leong, Racial Capitalism, 126 Harv. L. Rev. 2151 (2013).
Stacy Hawkins, Selling Diversity Short, 40 Rutgers L. Rec. 68 (2012).

I’ve been the first Latina hired in a number of institutions, and on most occasions, those institutions have proudly and visibly trumpeted my hiring, in institutional media and outside as well. I’m well aware that my identity (if not my name) plus my hiring has accorded value to the institution. I’m also aware that in at least one institution, my hiring was an instance of what race scholar Nancy Leong calls “thin diversity,” but what I call fake diversity: signaling a commitment to racial diversity that didn’t really exist. Was I harmed (or was the public harmed) by this fake signal? Perhaps. But I like to think that I earned compensation, in the form of a job, and that the public benefited, because I might have helped to transform the institution in a real way despite the fake signal at the outset. All in all, I think a fair trade.

I was very excited to read Nancy Leong’s article, Racial Capitalism, and then to read Stacy Hawkins’ reply to Leong, Selling Diversity Short. These two scholars are welcome additions to the conversation about affirmative action, fresh voices in what can sometimes be a conversation that has become a bit tired and played out. Thanks to the wonders of electronic publishing, I might actually have read the critique before reading the actual article. Hawkins’ critique came out online in 2012 and Leong’s article in 2013. But in whatever order I read them, the back and forth among these scholars was terrific. Continue reading "Faking It"

The Interpretation-Construction Distinction in Patent Law: Is It Just a Matter of Semantics?

Tun-Jen Chiang & Lawrence B. Solum, The Interpretation-Construction Distinction in Patent Law, Yale L. J. (forthcoming), available at SSRN.

Claim construction is the meat and potatoes of a patent litigator’s diet: it is performed early and often in patent infringement litigation, and it is often outcome determinative. Claim construction’s notoriously uncertain and unpredictable nature is therefore highly problematic. In The Interpretation-Construction Distinction in Patent Law, Tun-Jen Chiang and Lawrence B. Solum argue that courts and commentators have misdiagnosed the root cause of this problematic unpredictability, and they lay out a new route forward for courts seeking to make claim construction more predictable. At the end of the day, I am unconvinced that the patent community should follow this route. Nonetheless, I think that The Interpretation-Construction Distinction is a provocative read that forces the reader to clarify what are sometimes implicit, unarticulated assumptions about the nature of claim construction in order to mount an effective rebuttal.

Drawing on a literature that explains how courts give legal effect to other legal documents (including the Constitution and contracts), Chiang and Solum offer a new perspective on claim construction. They argue that many courts that perform claim construction are not employing a single process but, rather, are in fact employing two distinct processes. First, there is interpretation, or the process of determining the linguistic meanings of words. For Chiang and Solum, linguistic meaning is entirely determined by the understandings of an audience, and it is therefore factual and objective. “The ideas and concepts that the intended audience will comprehend from a certain text is simply a fact of the world.” (P. 15.) Second, there is construction, or the process of imbuing claim language with legal import in order to achieve particular policy outcomes. For Chiang and Solum, any process in which courts consider the policy of optimal claim scope cannot be interpretation and must be construction. “[L]inguistic meaning is the domain of interpretation, and it is factual, and there is no ‘should’ in that question.” (P. 22.) “[L]inguistic meaning is beyond the control of, and thus not dependent upon, the normative preferences of a third-party interpreter such as a judge.” (P. 15.) For example, any attempt of a court “to tailor patent scope to the real invention” is an act of construction because it requires a court to consider normative, patent-policy concerns to identify the level of abstraction at which the “real invention” should be identified. (P. 4.) Continue reading "The Interpretation-Construction Distinction in Patent Law: Is It Just a Matter of Semantics?"

Medicare’s Design Flaw

Nicholas Bagley, Bedside Bureaucrats: Why Medicare Reform Hasn’t Worked, 101 Geo. L.J. 519 (2013).

Medicare is a behemoth. But the legal literature on it is almost negligible by comparison. Only a few scholars tackle Medicare broadly, like Ted Marmor, Tim Jost, and David Hyman. Most articles (like Jacqueline Fox’s two must-read articles on coverage decisions), tackle discrete problems with Medicare. And there is no shortage of those.

It takes a fair bit of pluck to confront Medicare’s design flaws, as Nicholas Bagley does in Bedside Bureaucrats. Bagley applies administrative law sensibilities to argue that Medicare can’t implement its programmatic goals in large part because it relies on decentralized administration by private insurance contractors and, more importantly, by hundreds of thousands of private physicians as “street-level bureaucrats.” Continue reading "Medicare’s Design Flaw"

Internal Reform of Islamic Family Law through Evolving Standards of…Religion

John Hursh, Advancing Women’s Rights Through Islamic Law: The Example of Morocco, 27 Berkeley J. Gender L. & Just. 252 (2012).

John Hursh’s recent article addresses reform of Islamic family law. This is an area of law that has long been constitutionalized in the Muslim world just as it has in the U.S.–most recently through the same-sex marriage decisions. Hursh explores how changes to family law in Muslim-majority contexts come about through “internal reforms” that may ameliorate certain gender disparities. Hursh is concerned with what we might call “evolving standards” of religion, an understanding of which would facilitate contextually salient, and therefore legitimate, reforms to Islamic family law codes. In other words, internal reforms to Islamic family law arise through shifting social-religious mores–which may, in legal terms, be thought of as an analog to American Eighth Amendment jurisprudence’s “evolving standards of decency.”1

His study comes at important time, when Egypt, Tunisia, and other post-uprising countries seek to create or reform family law and other state laws on the basis of Islamic law. Hursh emphasizes that, based on recent reform efforts elsewhere in the region, such religiously inflected legal systems need not be static or closed to reform. Namely, Hursh highlights possibilities and limitations for religiously informed law reform based on recent changes to the family law code in Morocco. Continue reading "Internal Reform of Islamic Family Law through Evolving Standards of…Religion"

Challenging Inequality in Credit Markets—Towards a Reconstituted Financial Subject

Gary Dymski, Jesus Hernandez & Lisa Mohanty, Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis, 19 Feminist Econ. 124 (July, 2013), available at SSRN.

Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis, by Gary Dymski, Jesus Hernandez, and Lisa Mohanty, is a reminder of the power that mainstream economic analysis wields to shape social understandings of inequalities in personal credit markets and the terms on which potential legal and regulatory solutions are debated. At the same time, the article exposes the inadequacy of mainstream economic analysis when dealing with important questions about financial subjects and their exploitation in subprime lending markets.

The authors ask: what is it about the circumstances of minority women and men that renders these financial subjects too risky for lenders to trust with the relatively safe and affordable credit supplied by mainstream personal finance markets and at the same time the sub-prime market’s preferred borrowers of risky, dangerous, and unaffordable loans? They ask also: why did the well-documented over-supply of credit at the turn of the 21st century fail to exert competitive downward pressure on the predatory pricing of the subprime mortgages marketed to minority households, particularly minority female-headed households? It perhaps seems odd that such crucial questions about the performance of subprime markets have received little attention in conventional economic accounts of the crisis. But, as noted in the article, their absence reflects economic analysis’s robust assumptions that markets are socially neutral institutions populated by financial subjects that are abstracted from relations of racialization, class, and gender. The centering of this ahistorical, pre-political disembodied financial subject within economic analysis then perpetuates the invisibility of systemic racialized and gendered inequalities in the law reform and policy debates that economics influences. Continue reading "Challenging Inequality in Credit Markets—Towards a Reconstituted Financial Subject"

Disruptive Contracting in Digital Music

Kristelia Garcia, Private Copyright Reform, 20 Mich. Telecomm. & Tech. L. Rev. (forthcoming 2013), available at SSRN.

Differential regulation of different technologies is baked into many of our laws, often on the basis of outdated assumptions, relative political power at the time of enactment, or other quirks. Internet exceptionalism is common, but perhaps nowhere more galling than as applied to music in the US, where the interests of terrestrial radio and music copyright owners combined to produce a regime so tangled that to call it ‘Byzantine’ is an insult to that empire.

Kristelia Garcia dives deep into the details of digital music law, focusing on two case studies that she finds promising and troubling by turns. While opting out of the statutory scheme may well be locally efficient and risk-minimizing for the participants, some of the gains come from cutting artists out of the benefits. Other third parties may also be negatively affected if statutorily set copyright royalty rates are influenced by these private deals without full recognition of their specific circumstances, or if adverse selection leaves the collective rights organizations (CROs) that administer music rights too weak to protect the interests of the average performer or songwriter. Garcia’s paper suggests both that scholars must keep an eye on business developments that can make the law on the books obsolete and that specific legal changes are needed to protect musicians, songwriters, and internet broadcasters as part of the dizzying pace of change in digital markets. Continue reading "Disruptive Contracting in Digital Music"

When the Government (Accidentally) Helps Criminal Markets

David Michael Jaros, Perfecting Criminal Markets, 112 Colum. L. Rev. 1947 (2012).

The relationship between antisocial behavior and criminal legislation seems straightforward. When people behave in undesirable ways, legislators respond by prohibiting that behavior and imposing punishments for transgressions: so far, so good. What if, though, these laws actually (though unintentionally) facilitated crimes? This counterintuitive idea is central to David Michael Jaros’s provocative article, Perfecting Criminal Markets. 

Under an economic approach, legislators deter crimes by creating potential punishments that outweigh any perceived benefit to the would-be criminal. In reality, though, the creation of these crimes results in the emergence of black markets, whether for illegal drugs, prostitution, or other prohibited goods and services. Thus, closing the border creates a market for human smuggling, and criminalizing the sale of certain drugs creates a black market for their purchase and sale. While the existence of criminal markets is well trod scholarly ground, Jaros offers a fresh insight about their operation. Criminal markets also create new opportunities and new markets for individuals that would not exist without the creation of the “first order” crime. The illegal immigration market leads to the smuggling of persons across the border, often in deadly conditions. The illicit drug market leads to the sale of fake illegal drugs and gun violence. A common legislative response to these “second order” problems—a new round of criminalization—creates a dilemma. Continue reading "When the Government (Accidentally) Helps Criminal Markets"

Taking Public Adjudication Seriously: Recognizing the Importance of Timing in Party Rulemaking

Daphna Kapeliuk & Alon Klement, Changing the Litigation Game: An Ex-Ante Perspective on Contractualized Procedures, 91 Tex. L. Rev. 1475 (2013).

Anyone caught up in litigation—whether lawyer or litigant—would situate the recent interest in party rulemaking within the larger debate over the merits of maximizing party choice in dispute resolution. They would focus on setting appropriate limits on the practice of party rulemaking in order to balance the benefits of increased efficiency for the litigants and the public with the risk of abuse and the potential for bringing the administration of justice into disrepute. This perspective on party rulemaking often leads to a further analysis of the value of game theory in illuminating and assessing the range of outcomes that can emerge depending on how party choice is confined.

In their article, Daphna Kapeliuk and Alon Klement (members of the Radzyner School of Law, Interdisciplinary Center, Herzliya) engage with the leading U.S. commentators in this area, most notably Robert Bone’s Party Rulemaking, Making Procedural Rules Through Party Choice. They take the analysis beyond the interests of litigants and others in the system to show how party rulemaking can have important public implications and can, in effect, ‘change the litigation game’ itself. Continue reading "Taking Public Adjudication Seriously: Recognizing the Importance of Timing in Party Rulemaking"

Stress Renaissance

Robert F. Weber, A Theory of Stress Testing of Financial Institutions as a Deliberative Exercise, University of Tulsa Legal Studies Research Paper No. 20013-01 (June 2013), available at SSRN.

Reading about the fatal flaws and failures of financial reform day in and day out can make you forget things. Like the actual contents of financial reform…and the fact that it is happening under our noses even as we curse statutory nonsense and the glacial pace of rulemaking. Robert Weber’s article on stress tests is a healthy reminder that financial regulatory methods have changed in important ways since 2008, and that we have a lot of figuring-out to do about them.

Stress tests in finance do three things. First, they help firms identify and manage risk from adverse shocks—a spike in interest rates, a collapse in housing prices, a sharp slowdown in economic growth, or a government debt default. Second, they help regulators judge the resilience of individual firms and financial systems. Third, they help communicate information about risk and resilience to the markets and to the public at large, as well as to narrower constituencies of financial firms and their regulators. Continue reading "Stress Renaissance"

Is There a Federal Eminent Domain Power?

William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L. J. 1738 (2013).

One of the most widely accepted truisms of American constitutional law is that the federal government has the power to condemn property through eminent domain. In modern times, even scholars and jurists who generally take a narrow view of federal power—myself included, until I read this pathbreaking article—did not question this idea. Yet, as William Baude shows, the conventional wisdom at the time of the Founding, and for many decades thereafter, was exactly the opposite: the federal government did not have the authority to condemn property within the territory of state governments. It could only do so in the District of Columbia and the federal territories. Baude’s research has important implications for the constitutional law of both federalism and takings.

Most students of takings law are aware that the Supreme Court did not rule that the federal government had the power of eminent domain until the 1875 case of Kohl v. United States. But Baude’s important work shows that that result was far from a foregone conclusion. Indeed, he argues that Kohl was wrongly decided. Continue reading "Is There a Federal Eminent Domain Power?"

The Challenge of Boilerplate

Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton University Press, 2013).

Although Margaret Jane Radin is perhaps best known for her work in property theory, she has recently been focusing her formidable intellect on questions of contract. Boilerplate reflects her first book length treatment of these topics, and there is much to like about this book. Here I will focus on one contribution that the book makes to normative jurisprudence, which is to clarify the centrality, pervasiveness (and perhaps even inescapability) of a specific problem for modern contract theory. The problem involves what I like to call a generalized lack of theory-to-world fit: if Radin’s arguments are valid, then a very broad range of modern contract theories are addressing the wrong subject matter, given the way that contracts increasingly work in the modern world.

That some market practices pose special problems for some theories of contract is, of course, no big secret. Rarely, however, is it acknowledged just what a general threat some prevalent practices pose to modern contract theory as a whole. For that defect, Boilerplate provides a timely and incisive cure. Continue reading "The Challenge of Boilerplate"