Monthly Archives: November 2014

Judicial Fact-Making

Allison Orr Larsen, Factual Precedents, 162 U. Pa. L. Rev. 59 (2013)

Two judicial and scholarly heavyweights squared off recently in a case challenging the constitutionality of Wisconsin’s voter ID law. Writing for the Seventh Circuit panel, Judge Easterbrook reasoned that “whether a photo ID requirement promotes public confidence in the electoral system is a ‘legislative fact’—a proposition about the state of the world, as opposed to a proposition about these litigants or about a single state.” The Seventh Circuit was bound to accept that a photo ID requirement did promote public confidence in elections because “[o]n matters of legislative fact, courts accept the findings of legislatures and judges of lower courts must accept findings by the Supreme Court.” Dissenting from the denial of rehearing en banc, Judge Posner responded that Easterbrook’s approach “conjures up a fact-free cocoon.” Posner asked: “If the Supreme Court once thought that requiring photo identification increases public confidence in elections, and experience and academic study since shows that the Court was mistaken, do we do a favor to the Court … by making the mistake a premise of our decision?”

This disagreement between Easterbrook and Posner—in the language of Allison Orr Larsen’s excellent article—is about Factual Precedents: whether the Supreme Court’s statements about legislative facts should receive “separate precedential force, distinct from the precedential force of whatever legal conclusions they contributed to originally.” (P. 63.) As Larsen explains, such “facts” are everywhere in judicial opinions—facts like “partial birth abortions are never medically necessary, fleeing from the police in a car leads to fatalities, and violent video games affect the neurological development of a child’s brain.” (P. 71.) To support such claims, Supreme Court Justices regularly invoke authorities that have never been made part of the evidentiary record or subjected to adversarial challenge by the parties to the case. Yet—as the Easterbrook opinion suggests—lower-court judges often treat factual propositions as precedent that they are bound to accept as a matter of stare decisis. Larsen convincingly argues that this is a mistake. Rather, “generalized factual claims from the Supreme Court should not receive any precedential value separate and apart from the legal rules they helped to create.” (P. 99.) Continue reading "Judicial Fact-Making"

Safe at Any Speed: Robert Ahdieh’s Take on Cost-Benefit Analysis in Financial Markets

When I saw the title of Robert Ahdieh’s recent article, Reanalyzing Cost-Benefit Analysis: Toward a Framework of Function(s) and Form(s), I thought, “oh no, not another article about CBA.” Knowing Professor Adhieh’s work, I took a flyer and read it anyway, and boy was I happy with my decision. This is a great article which should be of interest to anyone involved in administrative law, securities regulation and policy analysis more generally. Cost-benefit analysis has become an important regulatory tool, and Professor Adhieh’s article makes a valuable contribution to the literature on the special analysis required under Section 106 of the National Securities Market Improvement Act of 1996, 15 U.S.C. § 77b (2012) and to the literature on cost-benefit analysis more generally.

Ahdieh’s jumping-off point, section 106 of the National Securities Market Improvement Act of 1996, requires the Securities and Exchange Commission (SEC) to consider, in all of its actions, including rulemaking, “in addition to the protection of investors, whether [an] action will promote efficiency, competition, and capital formation.” As Ahdieh observes, on its face, this provision has little bite—it requires only consideration of the effect on markets and it does not impose any substantive standard such as the efficiency requirement imposed by Congress in other regulatory contexts. Despite the moderate nature of Congress’s language, as Ahdieh reports, when the SEC promulgated a regulation expanding shareholder access to corporate proxies to nominate corporate directors, “[c]onsidering SEC rulemaking unsafe at any speed, . . . the Business Roundtable and the Chamber of Commerce challenged the new rule . . . invoking the language of Section 106 . . . [arguing] that the SEC’s assessment of the costs and benefits of mandatory proxy access had not met the requirements of Section 106.” Continue reading "Safe at Any Speed: Robert Ahdieh’s Take on Cost-Benefit Analysis in Financial Markets"

Putting Union Security Clause First Amendment Law in a Broader Context: Charlotte Garden’s Meta Rights

Charlotte Garden, Meta Rights, 83 Fordham L. Rev. 855 (2014).

Meta Rights is a thought-provoking article that addresses concerns about labor law rules governing agency fee payments in public-sector employment by comparing these rules to doctrines in analogous situations in other areas of law. Specifically, after the Supreme Court decided Knox v. SEIU Local 100 in 2012, 132 S.Ct. 2277 (2012), many felt that the Supreme Court was primed to change the default rule for agency payers from “opt-out” (an employee covered by a union security agreement would have to affirmatively state a preference not to pay dues for activities deemed “not related to collective bargaining”) to an “opt-in” system (unions could not require such dues absent specific, individual consent). Many in the field also noted that Harris v. Quinn, 134 S.Ct. 2618 (2014), looming but not yet decided when this article was written, could result in the Supreme Court mandating the “opt-in” system (I thought that was the most likely result in Harris). This is a very important issue in labor law and policy and for the labor movement as a whole. Although these cases explicitly covered only public-sector unions, such unions make up about half the total membership of all unions in the U.S.

Professor Garden could have written an article solely about whether “opt-in” rules were good or bad labor policy, or the extent to which constitutionally mandating such a system would be consistent with previous precedent (e.g., Abood v. City of Detroit, 431 U.S. 209 (1977)). Instead, she wrote a more interesting article by casting her net much more widely, describing when, in other contexts, courts have required Party A to give notice to Party B that Party B has certain constitutional rights. This takes her well beyond labor and employment law, and indeed beyond civil law (e.g., by discussing Miranda rights). Showing that such “meta rights” are relatively rare (e.g., public schools need not give notice to students that they have a First Amendment right to abstain from reciting the Pledge of Allegiance), Professor Garden provides a strong, principled, and broad-based critique of “opt in” rules. Continue reading "Putting Union Security Clause First Amendment Law in a Broader Context: Charlotte Garden’s Meta Rights"

Transmitting Retirement Accounts: Getting It Right

Stewart E. Sterk & Melanie B. Leslie, Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession, 89 N.Y.U.L. Rev. 165 (2014).

Articles routinely appear that serve up a simple, everyday scenario that has potential to morph into a terribly complex legal situation and in the process, twist legal doctrines pretzel-like to reach the preferred result. We read them, digest them for the nugget to divulge in class, and file them away to cite in a later article. Rare is the article that serves up a simple everyday scenario that could have a disastrous effect that causes us to actually do something to avert the potential disaster. Stewart E. Sterk and Melanie B. Leslie have done just that in their masterful, co-authored piece, Accidental Inheritance: Retirement Accounts and the Hidden Law of Succession.

Starting with the fairy tale beginning of “once upon a time,” the authors bring us back to the days when wills controlled the disposition of property at death. Judges were in control of the probate process, much, if not most, property was probate, and rules had developed to ameliorate the routine mistakes and missteps that occur between the signing of the will and the date of death. Marriage, birth of a child, divorce, and the death of a beneficiary no longer have to upset the decedent’s presumed intent for his heirs, as we had developed rules for the probate process to reach the preferred result. As the non-probate revolution has settled into mainstream life, the issue has become how many of those presumed-intent rules apply. So far pretty standard fare, but consider $9 trillion in retirement accounts (a most significant non-probate asset), a changing American family, and the impending demise of the baby boomer generation, and the consequences have the potential to be dramatic and, in the view of the authors, intolerable. Continue reading "Transmitting Retirement Accounts: Getting It Right"

When is Sexual Abuse Within the Scope of Employment?

Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 Val. U. L. Rev. 133 (2013), available at SSRN.

Martha Chamallas’s Monsanto Lecture, Vicarious Liability in Torts: The Sex Exception, is timely and important, inviting renewed scholarly attention to the oft-neglected topic of vicarious liability.

Since the 1990s, courts have faced a steady stream of suits brought against schools, hospitals, religious institutions, and other entities for sexual abuse committed by employees. In addressing these suits, Chamallas argues, courts have adopted an unjustifiably narrow approach to vicarious liability.

Modern doctrine maintains that an employee’s on-the-job wrong will be imputed to her employer when the wrong is foreseeable, or involves the realization of risks characteristic of the employer’s enterprise. Under these tests, vicarious liability has at times extended to employees’ intentional acts of physical violence, as well as to negligence perpetrated by drunken, off-duty employees.

It is thus surprising, Chamallas argues, to find prominent cases in which courts decline to impose vicarious liability for sexual abuse. For example, the California Supreme Court refused to hold a hospital liable for its medical technician’s molestation of a young woman during the performance of an ultrasound, and also declined to hold a school district liable for a teacher’s abuse of a student during a school-sanctioned extra-curricular activity. According to Chamallas, modern legal tests for “scope of employment” are capacious enough to permit liability in cases such as these. Moreover, standard instrumental rationales for respondeat superior (“let the master answer”)—that it incentivizes appropriate precaution-taking by employers, better ensures compensation of victims, and fairly comports with the risks characteristic of the employer’s enterprise—arguably also favor liability. So why would courts decline to hold employers liable under the circumstances? Continue reading "When is Sexual Abuse Within the Scope of Employment?"

Keeping Us Honest about the Timing Flaws in the Income Tax

Daniel I. Halperin & Alvin C. Warren Jr., Understanding Income Tax Deferral, Tax L. Rev. (forthcoming), available at SSRN.

We all do it once in a while. In the haste of trying to make a point in class, or in a hurried comment to the press, we overstate the effect of the failure of a tax law rule to take into account the time value of money. “The effect of deferral of income,” we may boldly assert, “is the exemption of the earnings on the amount deferred.” A recent short essay by Dan Halperin and Al Warren entitled Understanding Income Tax Deferral should help us all stay a bit more accurate when we make these claims. As Halperin and Warren point out, although in some limited circumstances the benefit of deferral can be the exemption of the earnings on the amount deferred, often the effect of an apparent deferral is more limited and more nuanced. In some cases, timing flaws produce only reduced taxation, not full exemption, while in other cases rules that seem to involve timing flaws merely shift income to other taxpayers or to other taxing jurisdictions. Halperin and Warren remind us that it can be very important to be able to distinguish between these results. This paper will displace Halperin’s 1986 classic in my must-read recommendations for beginning teachers of tax.

There is little that is actually new in the essay. However, it is a much-needed and succinct guide to the principles involved when considering the effect of timing in the rules defining the income tax base. Thirty years ago, when interest rates were high, correcting the timing mistakes embedded in the income tax law was a high policy priority. For example, the original issue discount rules were tightened and applied to many more transactions (in sections 1271, 1274 and 7872) and the possibility of accruing costs before payment were substantially curtailed (through various changes in the taxation of retirement savings and in sections 461(h)). In this era, the principles Halperin and Warren newly examine here became a mainstay of tax policy analysis. No one participating in policy discussions could afford not to understand them. Continue reading "Keeping Us Honest about the Timing Flaws in the Income Tax"

There’s No Time Like the Present for Some Optimism about the Future

“When did the future switch from being a promise to a threat?”
    –Chuck Palahniuk, Invisible Monsters: A Novel

The legal profession is often criticized as disinterested, if not fearful, of innovation in the delivery of legal services. As Benjamin Barton observes in the introductory chapter of his forthcoming book, Glass Half Full: The Decline and Rebirth of the Legal Profession: “Law may have changed less than any other area of the economy between 1850 and today. The same basic product is being sold and the same basic service is being performed.” But, as Barton quickly notes, “[n]o one dodges the reaper forever.” Through the next thirteen chapters, Barton proceeds to provide an insightful parsing of the past, present and potential future course of the American legal profession.

In homage to Larry Ribstein’s influential article, “The Death of Big Law”, Barton discusses current challenges faced by American lawyers through four different lens: “death from above”, “death from below”, “death from the state”, and “death from the side”. Although space constraints preclude a full exploration of the detailed analysis presented in the book, a brief summary of each of these four “deaths” follows: Continue reading "There’s No Time Like the Present for Some Optimism about the Future"

Citizenship for the Worthy Children

Immigrant children are the subjects of varying narratives. To some, immigrant children fleeing Central America are invaders, while others view these children as innocent bystanders who are reaching out to the United States for protection from unimaginable violence. The narrative matters and it influences public perception. In Defining American: The DREAM Act, Immigration Reform and Citizenship, Elizabeth Keyes takes a close look at the narratives pursued in support of the DREAM Act and identifies danger posed by a narrative that promotes legal status and eventual citizenship for worthy and blameless immigrants. Keyes takes a narrative that seems unobjectionable and uncovers a major negative consequence.  Creating the worthy category necessarily creates a category of individuals undeserving under the law.

The Development, Relief, and Education for Minors Act, or DREAM Act, has been on the congressional agenda for almost 15 years, but has yet to make its way to the President for signature. The DREAM Act would put certain individuals who currently lack legal immigration status on a path to legal status, with the potential of eventual US citizenship. The criteria generally include entrance to the United States before the age of 16, achievement of certain educational milestones or military service, continuous residence in the United States, and possession of “good moral character.” In the face of legislative defeat of the DREAM Act, the Obama administration used similar criteria to implement the Deferred Action for Childhood Arrivals (DACA) program, which does not provide legal immigration status but does provide work authorization and a promise that the US government will not pursue deportation for two years. Continue reading "Citizenship for the Worthy Children"

How Lower-Court Precedent Affects the Supreme Court

Aaron-Andrew Bruhl, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014)

Aaron-Andrew Bruhl has done it again. Beginning with a simple question—what can one say about the Supreme Court’s on-again/off-again relationship with lower court precedent—Bruhl finds a surprisingly rich collection of answers that illuminate much about the institutional federal judiciary. While Bruhl plays with numbers and demonstrates a sophisticated appreciation for the possibilities and limitations of empirical work on the federal courts, he treats quantitative analysis as one source of insight into a complex world rather than as an end in itself.

We’re familiar with the notion that the Court attends to lower court precedent. For starters, the Court often intones that its decision to grant review in a particular case was driven by a division in the lower court. When a split fails to emerge, it may prevent review for a time (as the marriage equality cases reveal). Even with a circuit split, the Court may refrain from taking a case at the first opportunity, preferring to allow the issue to percolate for a time as more circuit court judges take a crack at the problem. Finally, we often observe that particular members of the Court rely on lower court precedent in the course of their own treatment of an issue—Justice Breyer does this with some frequency, Bruhl reports, but Justice Scalia consciously eschews such reliance. Continue reading "How Lower-Court Precedent Affects the Supreme Court"

Bringing History into the Law School Classroom

Teaching is a fairly private experience, which may be an odd thing to say about something we do in front of a large group of people. Beyond talking with colleagues (both in person and in the very useful space Facebook provides to gather teaching advice), there are too few opportunities to see or hear what happens in other people’s classrooms, which is why I was looking forward to reading the essays in Teaching Legal History: Comparative Perspectives. The volume, an expansion of a special volume of the American Journal for Legal History, includes 63 short essays by law professors about how they teach legal history (and one longer essay on the history of teaching legal history in law schools). Some of the contributors have been trained specifically as legal historians, while others came to legal history teaching later in their careers. (Only thirteen of the 65 contributors are women, which raises questions either about the selection of contributors or about law school hiring more generally.) I should state here that I know several of the contributors to this volume—not surprising, as American legal history is my own research field.

There is significant breadth among the 63 essays (although not a lot of depth; by design, most are approximately four pages long). Taken together, they indicate the diversity of legal history courses and methods. Courses discussed range from the standard survey of American legal history to specialized courses on law in the Civil War, Latin American legal history, the history of corporate law, and the legal history of Hawaii. Some authors strive for coverage (some courses cover American legal history since Reconstruction, while others begin with the American Revolution, the Magna Carta, or ancient Mesopotamia); many others focus their courses on students’ own research papers. (I was impressed by how many contributors have their students tackle independent research in local and online archives.) Most contributors assign at least some primary sources (and many use primary sources almost exclusively); it is clear that the ease of gathering primary sources (through online databases and archives) has allowed many to complement or move beyond the few casebooks/sourcebooks that dominate the market. Several other contributors focus instead on secondary materials, and it was encouraging to see many forsake textbooks to expose students to the extremely vibrant recent scholarship in legal history. Continue reading "Bringing History into the Law School Classroom"