Monthly Archives: February 2014

Who, What, Why, When and Where: How Well Does the National Media Report on Sexual Harassment?

Joni Hersch & Beverly I. Moran, He Said, She Said, Let’s Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, 101 Ky. L.J. 753 (2013), available at SSRN.

In He Said, She Said, Let’s Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, Joni Hersch & Beverly Moran explore whether coverage of sexual harassment in the New York Times and Wall Street Journal is consistent with sexual harassment as it is reported in three other sources: a 1994 United States Merit Systems Protection Board (USMSPB) survey, charges filed with the Equal Employment Opportunity Commission (EEOC) from 2006-2010, and complaints filed in the Eastern District of Pennsylvania (EDPa) from 2010-2011. As the authors note, the article stemmed from curiosity regarding what national media outlets are reporting about sexual harassment and if that matches the reality of sexual harassment: “This article was inspired by a desire to learn if our national portrait of sexual harassment comports with what we know about harassment through social science.” (P. 775.) I like the article because it explores a practical issue that can help illuminate how one particularly important area of law is perceived and lived. How sexual harassment is perceived can help shape how sexual harassment law is enforced and how sexual harassment is lived in the workplace. Consequently, the article may be of interest to almost anyone who works with or cares about employment discrimination law.

The article can be summarized fairly quickly. The authors identify the key issue: whether major media outlets cover sexual harassment reasonably, fairly and accurately. After a brief discussion of the literature regarding sexual harassment in the workplace and the doctrine and history of sexual harassment, the authors compare sexual harassment coverage in the New York Times and Wall Street Journal with three data sets noted above: the USMSPB survey on sexual harassment, EEOC charge data, and sexual harassment complaints filed in the EDPa. The authors quickly analyze each data set noting the demographics of the sexual harassment claimants and what behavior tends to trigger harassment charges. The review of the media coverage suggests that sexual harassment is covered in an intensely local and episodic manner, with little recognition that sexual harassment is a national phenomenon that could be connected to “a larger, social, economic or political trend.” (P. 778.) In comparing the media coverage and the data sets, the authors found that while the reporting of the New York Times and Wall Street Journal generally does not mislead regarding the demographics of sexual harassment claimants, particular stories may downplay the seriousness of the factual allegations made in complaints. The article suggests that differences between the media portrayal of sexual harassment and what can be found in the data may result from the media’s focus on litigation. The authors note that a focus on pre-litigation harassment claims may provide a fuller picture of sexual harassment. The authors end the article observing that the focus on litigation leads to reporting that tends to miss “a sense of what happens before litigation and what sexual harassment means to victims in terms of their economic, professional, and emotional lives.” (P. 781.) Continue reading "Who, What, Why, When and Where: How Well Does the National Media Report on Sexual Harassment?"

Third-Party Financing of Litigation: Good or Bad?

Duty in the Litigation Investment Agreement: The Choice Between Tort and Contract Norms When the Deal Breaks Down, by Anthony Sebok and W. Bradley Wendel, addresses a topic of growing importance: third-party funding of litigation. In a third-party funding contract, a firm finances a lawsuit, and receives in return some portion of the judgment. Several finance firms have appeared recently, with Juridica and Burford perhaps the best known, that specialize in investing in large-claim lawsuits.

Third-party litigation funding is also known as champerty, and has been prohibited for a long time under the common law. The common law prohibition has been relaxed in recent years in some states, making the legal status of third-party funding agreements unclear as a general matter. The litigation investment firms have a large stake in the law changing in their favor, or at least remaining unclear. Continue reading "Third-Party Financing of Litigation: Good or Bad?"

Judge Wald and Justice Scalia Dance the Chevron Two-Step

Gary Lawson & Stephen Kam, Making Law Out of Nothing at All: The Origins of the Chevron Doctrine, 65 Admin. L. Rev. 1 (2013), available at BePress.

If you are teaching administrative law this semester, you can look forward to a riveting discussion of Chevron. There have been volumes written on this topic, and here I plead guilty. But if you will indulge me for a moment, I’d like to recommend that you read one more article about Chevron.

Professor Gary Lawson and former student Stephen Kam collaborated to write Making Law Out of Nothing At All: The Origins of the Chevron Doctrine. Their mission is to explain why the Chevron decision is irrelevant to the Chevron doctrine. They write not to praise or criticize the case, but “to bury it.” Or, to put it another way, they explain why one cannot resolve the many questions relating to the Chevron doctrine by examining the Chevron decision. In their article, Lawson and Kam elucidate how the lower courts, particularly the D.C. Court of Appeals, transformed the unrevolutionary Chevron case into the revolutionary Chevron doctrine within just two short years. Continue reading "Judge Wald and Justice Scalia Dance the Chevron Two-Step"

Are Inheritance Taxes Special?

Luc Arrondel & André Masson, Taxing more (large) family bequests: why, when, where?, (2013), available at HAL-SHS.

As I write this review, I am blatantly aware of the maxim “we like what we know.” I like Luc Arrondel and André Masson’s (A&M) working paper (lots) because it touches on themes I have previously written about (the clash between family autonomy and equality of opportunity as the central normative tension underlying the federal wealth transfer taxes) or enjoyed in other legal scholars’ work (the failure of economic models to account for “life in all of its fullness”). The contribution to these subjects made by A&M is interesting for two reasons: 1) they are economists by trade and 2) they offer a distinctly interdisciplinary analysis of the conundrum of wealth transfer taxation.

A&M first identify (and empirically document) a tax “puzzle:” revenues from wealth transfer taxation are very low and have fallen as a percentage of GDP in most developed countries over the past 50 years; whereas, revenues from lifetime capital taxation (including taxes on property/wealth and taxes on annual capital income flows) are generally higher and show no decreasing trend. The article discards several proffered explanations for this phenomenon (increased lobbying by the rich, growing international tax competition, and the relatively recent anti-government/tax movement) because these factors, intended to account for the growing unpopularity of inheritance taxation, would also imply—wrongly—a sharp decline in lifetime capital taxation. Continue reading "Are Inheritance Taxes Special?"

Undocumented Status and Slavery: Examining the Parallels

Chantal Thomas, Immigration Controls and “Modern-Day Slavery” (Cornell Law Sch. Legal Studies Research Paper Series, Paper No. 13-86, 2013), available at SSRN.

In the heat of the debate over comprehensive immigration reform last spring, Marco Rubio’s press secretary likened undocumented migrants to slaves, noting that Americans have not “had a cohort of people living permanently in US without full rights of citizenship since slavery.” The parallel between slavery and undocumented status is drawn often, but rarely with precision or analytical rigor.

Chantal Thomas’s new paper, Immigration Controls and “Modern-Day Slavery”, takes on the challenge of bringing hard-nosed logic to bear on the concept of “modern-day slavery” and its interface with immigration law. In my view one of the most interesting authors out there on questions of international law, immigration, and labor, Thomas’s analysis of the slavery debate does not disappoint. Continue reading "Undocumented Status and Slavery: Examining the Parallels"

The Erie-ness of the Rules

In Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Supreme Court famously ruled that a federal court cannot displace state common law with its own common law. Justice Brandeis’s majority opinion suggested that the Constitution compelled this result, and ever since, the decision has been called everything from a “brooding omnipresence” to an “irrepressible myth.” If Erie means anything (and, trust me, there is a lot of disagreement about whether it means anything at all), it makes clear that the federal government’s powers are limited vis-à-vis the states, and these limitations extend to the judiciary’s power to make law through precedent. To borrow Justice Brandeis’s words, “there is no federal general common law.” But translating this idea into doctrine has been a difficult task.

Applying Erie becomes even more complicated once you throw in the Federal Rules of Civil Procedure (which, ironically, became effective the same year as Erie). The Rules are like a legal mythical beast. The Rules are not statutes, even though they are exercises of Congress’s power to regulate the practices and procedures of Article III inferior courts. With rare exceptions, Congress does not exercise this power directly, but rather has delegated it to the Supreme Court through the Rules Enabling Act. The Court, in turn, has delegated the primary drafting of the Rules to an ad hoc advisory committee. Finally, under the Rules Enabling Act, the Rules cannot “abridge, enlarge or modify a substantive right,” which reflects a concern by Congress that the Court will abuse this delegated power to make “substantive” law without the authorization of Congress. Consequently, the Rules introduce a separation of powers dimension on top of the federalism concerns of Erie. Continue reading "The Erie-ness of the Rules"

Resistance is Futile?

Jakob Weberstaedt, English Alternative Business Structures and the European Single Market, Humboldt U. Berlin Working Paper (2013), available at SSRN.

In the last several years, alternative business structures (ABS) have been a top agenda item regarding the legal profession in the United States and Canada. Moves in Australia and England to liberalize legal markets—including the introduction of non-lawyer ownership of law firms—have inspired and influenced conversations about whether ABS should be introduced into the North American market for legal services. Most North American lawyers, however, don’t likely know much about how these overseas reforms have also fuelled the debate about ABS in Continental Europe. Fortunately, in his recent article, Jakob Weberstaedt provides an engaging account of this very issue.

Weberstaedt focuses on the reaction of the German Federal Bar to reforms introduced in England and Wales by the 2007 Legal Services Act, which allowed for law firms to be wholly-owned by non-lawyers (“English ABS”). The German reaction is, as he notes, of particular interest given both its forcefulness and the size of the German market for legal services (approximately 22% of the total revenues of the legal services sector in Europe). To provide some background for his analysis, Weberstaedt begins his article by outlining “[a] brief history of the Continental resistance to English ABS.” In this section, a number of interesting factual tidbits are offered, including the fact that, even before English ABS reforms were finalized, the German Federal Bar, via a 2006 letter from its president to a UK parliamentary committee considering the draft Legal Services Bill, made it clear that it “did not like the proposed reforms and that English ABS would not be allowed to operate in Germany.” A similarly negative position was subsequently taken by the Council of Bars and Law Societies of Europe (CCBE), which argued that provisions in a European Union directive1 addressing lawyer mobility would allow the Continental European bars to prevent English ABS from operating within their national jurisdictions. In turn, this analysis made its way into a response from the German Federal Bar to a 2011 American Bar Association issues paper on ABS. The background provided by Weberstaedt is both an informative summary of the events leading to the current debate about English ABS in Continental Europe and also a helpful reminder that the once-parochial issues of lawyer regulation now have an unprecedented global reach. Continue reading "Resistance is Futile?"