Monthly Archives: January 2014

What Does It Feel Like To Have OIRA Review Your Rule?

Lisa Heinzerling, Inside EPA: A Former Insider’s Reflections on the Relationship Between the Obama EPA and the Obama White House, Pace Envtl. L. Rev. (forthcoming), available at SSRN.

Ever wondered what it is like—really like—to be an agency official confronting review by the Office of Information and Regulatory Affairs (OIRA) of your agency’s rule? Readers of JOTWELL’s administrative law blog are disproportionately likely to be part of the small group that wonders about such things, and this post has some very good news for them.

Surely, the best way to find out what it is really like to run a rule through OIRA would be to become an insider, serving as a high-ranking official at a major rulemaking agency. Most of us will never have that option. Fortunately for outsiders, a leading administrative law scholar, Professor Lisa Heinzerling of Georgetown University Law Center, did. She left academia for two years to serve as Senior Climate Policy Counsel to EPA Administrator Lisa Jackson from January to July 2009 and then as Associate Administrator of the Office of Policy from July 2009 to December 2010. Now back in the academic fold, she has written a fascinating account of the way that centralized White House review has affected agency rulemaking during the Obama administration. Continue reading "What Does It Feel Like To Have OIRA Review Your Rule?"

Inequality in the Workplace and Beyond

Michael J. Zimmer, Inequality, Individualized Risk, and Insecurity, 2013 Wis. L. Rev. 1 (2013).

In his paper, which was presented as the Thomas E. Fairchild Lecture at the University of Wisconsin Law School, Professor Michael Zimmer does a superb job of explaining how employment has factored into the economic inequality that is so prevalent in our society. Professor Zimmer explains how the middle class is quickly disappearing from the workplace, and how economic mobility is quickly on the decline. Most importantly, he charts a course toward rectifying the existing problems.

In the first part of this paper, Professor Zimmer examines how the current economic volatility has created numerous difficulties for everyday workers. In particular, he explores how the permanent-type relationships between employers and employees are going by the wayside, as businesses have moved toward an independent contractor model that allows them greater flexibility in managing their workforce. As the majority of U.S. workers are employees-at-will, most employees today have little security in their paychecks or in their health and retirement benefits. Professor Zimmer also does an excellent job of exploring how unionization has waned across the country. Thus, while workers still have the ability to organize and overcome employment-at-will, it is becoming far less common for them to do so. Continue reading "Inequality in the Workplace and Beyond"

Linking the Certainty of Death and Taxes

Reid Kress Weisbord, Wills For Everyone: Helping Individuals Opt Out of Intestacy, 53 B.C.L. Rev. 877 (2012).

Testamentary freedom gives a person the right to control the distribution of his or her property upon death. The main way for a person to exercise that right is to execute a Will. In the event a person dies without a Will, his or her estate is distributed based upon the scheme set forth in the applicable intestacy statute. Even though most Americans die without executing Wills, Professor Weisbord is convinced that the decision not to execute a Will is not an indication that a person wants his or her property to be distributed under the intestacy system. Professor Weisbord opines that most people do not understand the consequences of dying intestate.

Professor Weisbord seeks to articulate a reason for the high rate of intestacy. He rejects the argument that people fail to execute Wills because they are afraid to think about their own mortality. To justify his rejection of that argument, Professor Weisbord asserts that people confront and plan for death by using non-testamentary transfer devices like life insurance and retirement plans with death benefit provisions. Professor Weisbord concludes that procrastination is the most plausible explanation for the high rate of intestacy. He maintains that most people procrastinate when it comes to making a Will because the process is complex and intimidating. According to Professor Weisbord, the Will-making process is complicated because the Will has to be attested to by witnesses and drafted using complex legal language. Professor Weisbord states, “In short, simplifying the will-making process would likely reduce testamentary procrastination.” Continue reading "Linking the Certainty of Death and Taxes"

Why Answer?

Nils Jansen, The Idea of Legal Responsibility, O.J.L.S. (forthcoming, 2014) available at SSRN.

Prof. Nils Jansen’s new article, The Idea of Legal Responsibility, is an ambitious work of tort theory. Jansen engages some of the most basic questions of private law.  The article’s rewards are found on two levels.  First, the argument it propounds—that responsibility in tort can be usefully (if not exclusively) framed in terms of restitution– is intriguing and offers another take on corrective justice.  Second, the framework around which Jansen builds his argument – the evolution of the law of restitution in scholastic and early modern European private law– is one that may be unfamiliar to many common lawyers. Jansen’s article make a persuasive case that contained within this history are lessons that transcend the common and civilian divide.

Professor Jansen’s thesis is deceptively simple:  He argues that the best justification for tort liability in many modern legal systems on both sides of the Atlantic is a principle of “responsibility” that has its roots in the doctrine of unjust enrichment.  Early in the article Jansen asserts that the question that all tort theorists in both the common law and civilian legal cultures must answer is, “why be responsible for another’s loss” and that the answer to this question lies in the “moral principle against unjust enrichment” (P. 3).  Yet by the end of the article, Jansen restates his position so that it seems that unjust enrichment is useful today because it helps illustrate the “constitutionalisation” of tort law, a modern phenomenon where the priority of basic human rights determines the variety of tort doctrines that dominate today’s legal landscape.  This tension is interesting and worth considering. Continue reading "Why Answer?"

There’s Math for That! Delta Value and the Constructive Sale Rules

Thomas J. Brennan, Law and Finance: The Case of Constructive Sales, Ann. Rev. Fin. Econ. (forthcoming 2013) available at SSRN.

Tom Brennan’s recent paper, Law and Finance: The Case of Constructive Sales explains that constructive sale guidance and case law fail to take account of volatility.  To fix the omission, Brennan explains, use the delta value of the constructive sale transaction relative to the underlying asset to determine how close the transaction is to a sale.  Reg writers, take note.

When do you own something, or more to the point, when have you sold it?  In tax terms this presents the question of realization.  And on it turns income tax planning’s central tenet:  defer the payment of tax as long as possible.  Preferably until the angel of death arrives with the gift of stepped-up basis, expecting only the small tip of possible estate tax liability. Continue reading "There’s Math for That! Delta Value and the Constructive Sale Rules"

Local Prosecutors as Deportation Gatekeepers

Stephen Lee, De Facto Immigration Courts, 101 Cal. L. Rev. 553 (2013).

In De Facto Immigration Courts, Stephen Lee untangles part of the thicket that is immigration law. Immigration law is a dense and unique fusion of administrative law, constitutional law, criminal law, and more. It is these intersections, in the context of the very human story of migration, which give immigration law its essence. Professor Lee’s article identifies and explores an underexposed phenomenon arising from immigration law’s dependence on criminal law and criminal procedure.

Professor Lee’s article focuses on how events in state and local criminal law proceedings affect eventual federal civil law agency removal (deportation) proceedings in immigration courts. Specifically, he looks at the impact of state and local prosecutors’ charging and plea choices in criminal cases in eventual agency immigration law proceedings. He argues that criminal court systems are functioning as de facto immigration courts. Continue reading "Local Prosecutors as Deportation Gatekeepers"

New Jotwell Section: Lex

Today we inaugurate a unique new Jotwell section. Unlike our ordinary single-subject Jotwell sections, the Jotwell Lex Section will feature a selection of legal topics that do not necessarily have the publishing volume to carry a section of their own. The Lex section’s initial list includes Art & Cultural Property Law, Education Law, Election Law, Energy Law, Environmental Law, Immigration, and Librarianship & Legal Technology, with a stellar cast of founding Contributing Editors.

The first posting in the Lex section, on Immigration Law, is Local Prosecutors as Deportation Gatekeepers by Jill Family.

Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

Reimagining a New Ending to “Reimagining Legal Services”

Spoiler alert: This Jotwell review reveals the plot of Mitchell Kowalski’s book, Avoiding Extinction: Reimagining Legal Services for the 21st Century.

In recent years, those of us who are interested in legal services market innovation and disruption are often presented with two different types of source materials to satisfy our curiosity. First, there is blue-skies thinking—ideas that might ultimately become mainstream but not in the immediate future. Secondly, there is research, which examines innovative market behaviours, delivered by actual providers to real clients. However, what is generally missing from such works are discussions about how either of these changes will impact existing lawyers who find themselves caught up in this period of transition. And this is the main attraction of Mitch Kowalski’s approach: By writing a novel, Avoiding Extinction: Reimagining Legal Services for the 21st Century, Kowalski is able to offer a human-focused examination of these mega-market changes—from the perspectives of individual clients and private practice lawyers. Continue reading "Reimagining a New Ending to “Reimagining Legal Services”"

Gay Rights in the Workplace

Katherine Turk’s recent article, ‘Our Militancy is in Our Openness’: Gay Employment Rights Activism in California and the Question of Sexual Orientation in Sex Equality Law, offers a deeply researched history of gay rights activism in California—“the epicenter of the gay employment rights movement” (P. 426)—that engages important questions about the benefits and limits of different legal strategies. In this detailed local history of the gay employment rights movement, Turk discusses the work of a number of advocacy organizations in the state—including the ACLU of Southern California, the Los Angeles Gay and Lesbian Center, the Metropolitan Community Church, the Society for International Rights, the Committee for Homosexual Freedom, the Committee on Rights within the Gay Community, and the National Gay Rights Association—through which activists pressed for equal rights in the workplace. Although this movement was dominated by gay men, Turk makes clear that it is not a story of a fractured movement. Instead, activists throughout the gay community understood the prosaic importance of employment rights, and the employment nondiscrimination litigation at the center of her narrative “embodied some of the most universal and consistent claims at the heart of the modern gay rights movement.” (P. 428.)

Activists called for a new model of workplace rights, as they sought legal protections that combined the equality arguments used by women and people of color with gay liberationist arguments that embraced sexual orientation. In doing so, they contended “that a worker’s gender and sexual orientation were irrelevant to his or her ability to perform a job, but that the freedom to signal those identities was an essential element of workplace equality.” (P. 426.) Thus, the gay employment rights movement rejected equality arguments based in sexual privacy, “which assumed that people could—or should—leave their sexual identity behind at the office door.” (P. 435.)  Instead, activists argued, gay and lesbian workers should be able to participate in the workplace in the same way their heterosexual colleagues did—as workers with professional skills and rich personal lives. Continue reading "Gay Rights in the Workplace"