Monthly Archives: October 2013

Losing the Battle, Winning the War?

Catherine Fisk & Adam Barry, Contingent Loyalty and Restrictive Exit: Commentary on the Restatement of Employment Law, 16 Empl. Rts. & Employ. Pol’y J. 413 (2012), available at SSRN.

As the Restatement of Employment Law (REL) wends its way towards final approval, most likely next May, the debates about it—both within and without the American Law Institute (ALI)—may seem like yesterday’s news. But the promulgation of a new Restatement, unlike the passage of a statute, is not the last word on a legal subject but rather the beginning of a struggle for court imprimatur. In this regard, the scholarship that analyzes REL as it grinds through the laborious ALI mill may prove to have greater influence in judicial venues than it does before the Institute. At least in the case of Contingent Loyalty and Restrictive Exit: Commentary on the Restatement of Employment Law by Catherine Fisk and Adam Barry, that’s a good thing.

At the 30,000 foot level, the authors view the REL as having “two inconsistent visions about the employment relationship and about employee mobility.” Chapter 2, dealing with termination of employment, “envisions employment as a commodity market in which employers and employees contract for the sale of labor and expertise and are free to terminate the relationship when they deem it in their interest to pursue more lucrative opportunities with other contracting partners.” In contrast, Chapter 8, governing employee obligations, “shackles employees with continuing obligations at and after the termination of employment.” Fisk & Barry summarize: Continue reading "Losing the Battle, Winning the War?"

Filling in the Blanks

Adam J. Hirsch, Incomplete Wills, 111 Mich. L. Rev. 1423 (2013).

In his latest article, Incomplete Wills, Professor Adam Hirsch undertakes an elaborate analysis of the law governing the disposition of the portion of the testator’s probate estate undisposed of by the testator’s will. The breadth and depth of the research on which the article rests is formidable indeed. Although at first thought one might quarrel with the author’s assertion that the examination and classification of reported cases is a form of empirical research, he is candid about the limitations of the technique and his use of the cases is really quite traditional: they are illustrations of the great variety of circumstances in which the courts have considered real problems, in this instance, those caused by incomplete wills. And this use of the illustrations that the cases provide is the message of the article. Because wills are incomplete for many reasons, all of which are to some degree unintentional, the usually bright line rules that govern, exemplified by the closely related treatment of these topics in Restatement (Third) of Property (Wills and Donative Transfers) and the Uniform Probate Code (UPC), often give results that to varying degrees are out of sync with what we can learn of testators’ intentions.

Prof. Hirsch first discusses negative wills at great length, asking under what circumstances express disinheritance should be effective to supplant the intestacy statute in the event of a partial intestacy (providing along the way a complete discussion of current American law on the subject). With appropriate noting of the limitations of the data, he attempts to classify the reported cases according to the reason for disinheriting a family member by means of a negative will. The most we can conclude from this effort is that “the data suggest a substantial scattering of testamentary motives.” That fact, in turn, leads to the conclusion that neither the traditional refusal to honor negative wills nor their blanket approval by the modern view exemplified by the Restatement and the UPC is the best way to go. He suggests instead a close inquiry into the motives for making a negative will. The legislature will need to create a presumption about the testator’s intent to create a negative will or not, a presumption which for now will be arbitrary but in the future will be refined in light of cases decided under the new rule of ascertaining testator intent. Continue reading "Filling in the Blanks"

Did You Get The Message

Scott Hershovitz, Tort as a Substitute for Revenge, in Philosophical Foundations of the Law of Torts (John Oberdiek ed., forthcoming 2014) available at SSRN.

Modern tort theory begins with Holmes, who was eager to recast the old law of ‘trespass’ on suitably modern terms. Back when people were superstitious and quick to blame, tort could be understood as law that provides an alternative to vengeance. In our disenchanted world, however, tort law must be seen as a mechanism by which the state pursues a public policy, such as compensation of injury victims.

In Tort as a Substitute for Revenge, Professor Scott Hershovitz invites us to ask whether Holmes got us off on the wrong foot. Indeed, he argues that tort law has an important connection to revenge and that, as such, it is to be credited with delivering a kind of justice. Continue reading "Did You Get The Message"

Presumptive Collection: An Innovative Proposal for a Notoriously Difficult Problem

Kathleen DeLaney Thomas, Presumptive Collection: A Prospect Theory Approach to Increasing Small Business Tax Compliance, 67 Tax L. Rev. __ (forthcoming 2013), available at SSRN.

In Presumptive Collection: A Prospect Theory Approach to Increasing Small Business Tax Compliance, Kathleen DeLaney Thomas tackles the extensive, and notoriously difficult to address, problem of small business tax evasion.  She does so by proposing a novel solution to the problem: presumptive collection of tax liability.  Her solution is elegant, balanced, and a great example of how tax law professors can integrate scholarship from other disciplines with their detailed knowledge about tax law and compliance, in order to produce valuable real-world proposals.

Thomas starts off by detailing some of the well-known facts about the rampant tax evasion by small businesses.  These businesses, which have high opportunities to evade as a result of the lack of withholding and information reporting, engage in great amounts of evasion.  As a result, they are major contributors to the so called “tax gap,” and their evasion threatens the integrity of the tax system. Continue reading "Presumptive Collection: An Innovative Proposal for a Notoriously Difficult Problem"

A New Take On The Swing Justice

Peter K. Enns & Patrick Wohlfarth, The Swing Justice, J. Pol. (forthcoming  2013).

Whether quantitatively, qualitatively, journalistically, historically, or jurisprudentially, scores of papers have analyzed the “swing justice.” Is there anything left to learn?

Yes. In The Swing Justice, political scientists Peter Enns and Patrick Wohlfarth claim to make two contributions to the existing literature. By my count, it’s more like one-and-a-half, but that’s still a lot for a subject as picked over as this one. Continue reading "A New Take On The Swing Justice"

The Persistent Gender Wage Gap in Legal Practice: What We Know and What to Do

Joyce S. Sterling & Nancy Reichman, Navigating the Gap: Reflections on 20 Years Researching Gender Disparities in the Legal Profession, 8 Fla. Int’l. U. L. Rev. (forthcoming, 2013), available at SSRN.

Nearly twenty years ago, the Colorado Bar Association and the Colorado Women’s Bar Association published a study that identified, among other things, a significant wage gap between male and female lawyers practicing in the local Denver community: the “average woman working full-time earned only 59 cents to the dollar earned by the average man working full-time.” (P. 4.) This finding led to a commitment by the Colorado Bar to sponsor additional research on the “the mechanisms that produced the gap.” (P. 4.) To the good fortune of the Bar and the community of scholars interested in issues related to gender and the legal profession, two University of Denver professors agreed to undertake this additional research with the “expect[ation that they would]… be able to expose the sources of bias, make recommendations, and move forward to remove the barriers to women’s success in law.” (P. 4.) Thus began the collaboration by Joyce Sterling and Nancy Reichman that has produced more than 25 published articles, working papers, and presentations on the gender gap. Taking an empirical approach to the problem, they have drawn on numerous sources, settings, and theoretical frameworks, all the while with quantitative and qualitative data at the core of their work, to produce both foundational research and cutting-edge insight.

In Navigating the Gap: Reflections on 20 Years Researching Gender Disparities in the Legal Profession, one of their newest papers, Sterling and Reichman reflect on the continuing presence of the gender gap, and lament that their research has not led to the eradication of the wage gap much less other barriers to gender equality in legal practice. The article does more than lament, however. It is a call-to-arms, of sorts, that offers important ideas for advancing equality and simultaneously provides a comprehensive overview of what they have learned from their research and that of others about gender disparities in the legal profession. The dual focus of looking back and forward makes this article particularly significant. It offers an entrée to those unfamiliar with research about gender inequality in the legal profession and a map for those interested in joining research with activism. Continue reading "The Persistent Gender Wage Gap in Legal Practice: What We Know and What to Do"

The Disaster Relief Precedent

Michele Landis Dauber, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State (University of Chicago Press, 2012).

“The inner city deserves a disaster relief plan,” wrote Reverend Jesse Jackson, on the eve of Detroit’s bankruptcy filing and in the wake of Hurricane Sandy. The storm-ravaged coastal communities “all deserve[d] aid,” Jackson emphasized, but in cities around the country a “disaster” was unfolding that was “equally devastating, equally beyond anyone’s fault, and yet essentially ignored at the national level.”1 Readers may disagree about the merits of the analogy or the wisdom of Jackson’s proposal, but the structure of the argument should surprise no one—at least not after reading Michele Landis Dauber’s important new book, The Sympathetic State.

Since the nation’s founding, Dauber shows, Americans have mobilized the concept of disaster to claim large federal appropriations for those in need, even in decades remembered for laissez-faire governance. Using a “disaster narrative” (P.7), Congress distributed funds to the victims of floods and fires, droughts and earthquakes, Indian depredations and grasshopper plagues. Scholars who write about the welfare state often see a distinction between treatment of the “able-bodied” and those who are unable to work; it is one’s ability and willingness to participate in the market, in other words, that dictates “deservingness.” That distinction is absent, Dauber notes, in the case of disaster relief: the underlying logic of these grants is that the recipients are in desperate need “through no fault of their own.” (P. 34.) Continue reading "The Disaster Relief Precedent"

Liberalism Revisited

James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013).

We live in a liberal age, philosophically speaking.  One may argue about what variant of liberalism is most persuasive but, on the whole, most theories of law or politics do not seriously question a slate of liberal doctrines, most especially the primacy of individual autonomy, the commitment to “negative liberty” and thus the limitation of state coercion by the harm principle.  Perhaps it is an inevitable sign of the dominance of liberalism that a number of scholars have started to more acutely feel its shortcomings more acutely.  Thus liberalism is accused by some of being too thick, requiring commitment to a comprehensive world-view that makes individual liberty primary and excluding those who do not take controversial issues of law and politics to be decided by individual rights.  Gaining more momentum perhaps, are those who find liberalism too thin, arguing that the hegemony of individual rights leads our legal system to pay insufficient attention to the encouragement and enforcement of the duties of citizenship, civic virtue and morally valuable forms of life of both citizens and communities that cannot flourish without collective political support.

In the face of this increasingly strenuous criticism from both sides steps in Fleming and McClain’s Ordered Liberty: Rights, Responsibilities, and Virtues.  Fleming and McClain take up a rather ambitious task.  They seek to reform and/or illustrate, in turns, that liberalism of a certain type, their “Constitutional Liberalism,” can meet the challenges leveled at liberalism.  The text places itself firmly in that intersection of law, feminism, constitutional theory and political theory.  For those interested in purely philosophical discussion of liberalism, the book may seem to only weave in and out of important conversations.  That said, it does engage with important and popular contemporary philosophical and theoretical positions in the liberalism literature on liberalism, from Michael Sandel on one side to Cass Sunstein on another. Continue reading "Liberalism Revisited"

Creative Incentives

Katharina Eckartz, Oliver Kirchkamp, & Daniel Schunk, How Do Incentives Affect Creativity (CESifo Working Paper Series, Paper No. 4049, 2012), available at SSRN.

The classic justification for intellectual property laws was perhaps stated best by Abraham Lincoln, who, in speaking of the patent system, characterized its function as “adding the fuel of interest to the fire of genius.” Put less poetically, IP aims to encourage creativity by granting creators exclusive property rights in their creations. That way, if a patented invention or copyrighted work turns out to be worth money, the creator will benefit, rather than a copyist.

That sounds entirely sensible in theory. We think that people generally respond to incentives. Make gasoline more expensive by taxing it, and people generally use less of it. Give people a tax break on home mortgages, and they build more and bigger houses. Make creativity a little less risky, and the payoff a bit more certain, and we’ll get more investment in creative labor. Continue reading "Creative Incentives"

Harnessing the Power of Comparative Effectiveness Research for More Rational Health Care Financing

Russell Korobkin, Relative Value Health Insurance: The Behavioral Law and Economics Solution to the Health Care Cost Crisis, Mich L. Rev. (forthcoming 2013), available at SSRN.

Nearly all health insurance contracts currently sold in the U.S. cover all medically necessary, non-experimental services, subject to only specifically listed exclusions. As a result, the coverage provided is what those in the benefits industry would refer to as “rich” coverage. If the treatment is non-experimental and is expected to have a positive clinical benefit, no matter how small, it is covered regardless of cost. This rich coverage leads to some predictable problems. Because individuals typically have little incentive to decline treatment that might benefit them, utilization is high and costs rise accordingly. This, in turn, makes health insurance more expensive for all purchasers. Our health system has tried to remedy this issue by adopting managed care structures to create incentives for providers to limit utilization of a treatment where it has only marginal benefits. And, more recently, consumer-driven health care has been developed to create incentives for patients themselves to reduce utilization of marginally beneficial treatment.

Russell Korobkin’s new article seeks to address this well-known problem through a novel use of comparative effectiveness data to create health insurance contracts that only cover services that provide a given level of cost effectiveness.  He refers to this type of insurance as “relative value health insurance.” The basic idea is to start with an index of treatments based on cost-effectiveness, with a proposed scale of 1 for highly cost-effective treatments to 10 for treatments with low cost-effectiveness. Health insurance contracts could then be sold based on the level of cost-effectiveness they will cover. For example, insurers might offer a policy that covered all treatments with a rating of 3 or above for $X, while charging significantly more for a policy that covers all treatments with a rating of 7 or above. Korobkin’s basic argument is that relative value health insurance would greatly simplify an individual’s tradeoffs between medical care and competing goods and services. Continue reading "Harnessing the Power of Comparative Effectiveness Research for More Rational Health Care Financing"