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"