Yearly Archives: 2014
Jul 8, 2014 Michael J. ZimmerWork Law
French economist Thomas Piketty has published a lengthy tome on economics that, unusual for economics books, has become a best seller. That attention is for good cause. While not exactly a beach read, Capitalism in the Twenty-First Century is a potential game changer for what the study of economics entails and its consequence for future policies. The timing of the book is perfect because the fact of increasing economic inequality has become a topic of increasing focus among academics but also in public policy discussions more broadly. What has been lacking is a deep understanding of how this has come to happen and what might be done to reduce inequality. Picketty’s book moves the discussion forward by pointing to where inequality comes from, where it is going, what might be done to shift its momentum and direction and what might happen if nothing is done to alleviate ever increasing inequality.
In his Introduction, Piketty quotes Marx’s “Communist Manifest” for its prediction of the inevitability of revolution resulting from the internal contradiction of capitalism: “The development of Modern Industry, therefore, cuts from under its feet the very foundation on which the bourgeoisie produces and appropriates products. What the bourgeoisie therefore produces, above all, are its own gravediggers. Its fall and the victory of the proletariat are equally inevitable.” In less dramatic language, Piketty concludes that “the private rate of return on capital, r, can be significantly higher for long periods of time than the rate of growth of income and output, g. The inequality r>g implies that wealth accumulated in the past grows more rapidly than output and wages. . . . Once constituted, capital reproduces itself faster than output increases. The past devours the future.” His evidence supporting his conclusion that makes capitalism inherently unstable, at least in its present form, is his of study of a wide array of data from a number of countries from the 19th century up until the beginning of World War I and, beginning again after the end of World War II until today. During those prolonged periods, the net rate of economic growth in terms of output and wages was about 1% while the return on capital was always between 4 and 5%. Thus, wealth in terms of capital versus from labor increasingly is concentrated in the top 1% and, even more so, in the top .01%. Ever-expanding capital simply cannot be sustained in the long run because that would mean that labor loses all value. If the past is the prologue to the future, capitalism will at some point inevitably collapse if actions are not taken to reduce the growing value of capital. The period from the beginning of World War I through the end of the immediate post-World War II period demonstrated that the momentum toward ever increasing concentration of wealth can be stopped. During that disastrous period of the 20th century, there was a substantial shift as capital shrank due to the destruction of the two great wars, the Great Depression, the end of European colonization and a policy shift toward the creation of a middle class. As a result economic inequality decreased significantly until after World War II. Much economic theory assumed that this period was the new normal, but, for Piketty, the experience since 1970 onward shows that the old normal has reasserted itself so that economic inequality will continue to grow unless substantial efforts are undertaken to change the policies that underpin the growing power of capital over labor. Continue reading "(Re)Booting the Dismal Science"
Jul 8, 2014 Daniel ShaviroTax Law
If I had nothing more specific in mind, it would verge on being trite–or perhaps achieve triteness with margin to spare–to identify Thomas Piketty’s Capital in the Twenty-First Century as a 2014 publication worth noting at Jotwell. At least as of early spring, the reviews–predictably laudatory from the left, and cautious or critical from the right–have been sprouting like dandelions in Central Park, and there have also been regular (indeed, almost daily) features about Piketty and his opus, appearing in periodicals of all kinds. Most readers no doubt already know that Piketty has combined a compilation of groundbreaking empirical research about wealth distribution in multiple countries over the last few centuries with an important and provocative thesis about the likely (or at least a possible) future.
Piketty argues that high-end wealth concentration has a tendency to keep on augmenting itself in modern capitalist societies, at least for an indefinite time. He views the mid-twentieth century’s “Great Easing” of this process as reflecting distinctive and anomalous factors that make it unlikely to be repeated. He attributes it mainly to the era’s enormous shocks–in particular, the Great Depression and two calamitous world wars–and secondarily to the pursuit of economic and regulatory policies that deliberately sacrificed neoclassical market efficiency in pursuit of other objectives, or else in response to concerns about market failure that came to be dismissed with the rise of such political leaders as Ronald Reagan and Margaret Thatcher. Continue reading "The Return of Capital"
Jul 8, 2014 Kent D. SchenkelTrusts & Estates
Early in the introduction to his arresting new book on wealth distribution, the French economist Thomas Piketty asserts that “the distribution of wealth is too important an issue to be left to economists, sociologists, historians, and philosophers.” (P. 2.) “Everyone,” he writes, should be interested. It seems to me that, on the issue of wealth distribution, trusts and estates scholars should be at or near the front of the queue. In any event, that is my excuse for choosing a book on economics as a JOTWELL selection for trusts and estates.
In the short time the English translation of Capital in the Twenty-First Century has been available (March, 2014), Piketty has achieved near rock-star status. The hard-copy version of the book, which runs 577 pages excluding the footnotes, is sold out on Amazon as I write this. It has been reviewed by all the major newspapers, discussed in all the business and academic journals, and debated across the blogs, and its themes have been batted around by commentators of all stripes. The New York Times, not content to restrict discussion of the splash the book is making to its opinion pages, recently featured Piketty in its Sunday Styles section. Reviews, references, debates and interviews continue. All of which seems to indicate that at least the chattering and scribbling classes, if not the public at large, are rather intrigued by the themes offered by the book. Continue reading "Trusts and Estates Law and the Question of Wealth Distribution"
Jul 8, 2014 Neil H. BuchananTax Law
By now, it seems that everyone has heard of the new tome from French economist Thomas Piketty. Capital in the Twenty-First Century continues to top The New York Times Bestseller list for hardcover non-fiction, which hardly seemed likely for a book that is mostly built on an analysis of European and American tax records over the last century or two.
Piketty’s book deserves all of the plaudits that it has received. It is a masterpiece of economic analysis, advancing our understanding of wealth concentration in the world’s richest democracies, and offering a provocative forecast of the future of inequality in the U.S. and elsewhere. Even the most trenchant reviews of the book that take a negative tone, such as the economist James K. Galbraith’s essay in Dissent, rightly conclude that Piketty has made an important contribution to knowledge. Continue reading "Thomas Piketty’s Book Is Masterful and Important, but Ultimately a Sideshow"
Jul 7, 2014 Laurel TerryLegal Profession
I don’t know about you, but I am sucker for technology and “Big Data” stories. I was glued in front of my television when IBM’s Watson took on Jeopardy’s reigning champion Ken Jennings–and won. I am interested in the work of scholars such as Dan Katz and initiatives such as ReInvent Law™ and LawWithoutWalls.™ When NPR and the New York Times ran stories about how technology may do a better job than lawyers for certain tasks such as e-discovery, I emailed those stories to friends and colleagues. My ears perk up when I read about the coming “disruption” to the legal profession. I often recommend to others Richard Susskind’s book entitled The End of Lawyers? about the impact of technology on legal services.
Regardless of whether you share my fascination for these kinds of topics, I encourage you to read the article entitled The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services which Professors John McGinnis and Russ Pearce contributed to the Fordham Colloquium on The Legal Profession’s Monopoly on the Practice of Law. In my view, regardless of one’s field of expertise, everyone should read this article and begin to reflect on this phenomenon that will revolutionize the practice of law, and dramatically change all of our lives. Continue reading "Forewarned is Forearmed: Anticipating Big Changes for the Legal Profession"
Jul 4, 2014 Christina Duffy PonsaLegal History
In this tightly argued and thoroughly engaging article, Gregory Ablavsky makes the case for a revisionist history of the U.S. Constitution that places Native American Indians at its center. While it isn’t hard to show that conventional constitutional histories largely neglect Indians, it isn’t easy to prove that such neglect is not benign. That is, it’s one thing to argue that standard accounts should include a discussion of Indians, but it’s another thing entirely to make a convincing case that core constitutional understandings would be fundamentally altered if historians fully and prominently integrated the history of relations with Indians into their narratives of the Constitution. Ablavsky aims for the latter, arguing that the history of the creation, drafting, and ratification of the Constitution should be rewritten with Indians in a leading role—and he does not miss the mark.
Ablavsky shows how concern over the problem of persistently hostile relations with Indians during the founding era informed James Madison’s and Alexander Hamilton’s competing Federalist arguments for a stronger central government. This isn’t a modest proposal that we pause for a moment to consider how events on the periphery might shed some light on constitutional debates at the center. Rather, Ablavsky tells us that there is nothing at all peripheral about the frontier when it comes to founding-era debates about constitutional design. The problem of Indian relations, he argues, was central not only for settlers, but for the likes of Madison and Hamilton, and for their fellow delegates and the ratifying public, as they debated the best form of government for the nation they were building. Contesting views on how to solve that problem substantially contributed to shaping the visions they articulated for a more perfect Union, in ways constitutional historians have yet to recognize. Continue reading "In Plain View"
Jul 2, 2014 Camille Gear RichFamily Law
In her new book, According to Our Hearts, Rhinelander v. Rhinelander and the Law of the Interracial Family, Angela Onwuachi-Willig brilliantly deconstructs and challenges the norm of the monoracial family — the idea that “normal” families are and indeed should be produced by heterosexual single-race couples. As Onwuachi-Willig explains, this norm fundamentally shapes American legal and social relations, including marriage and family formation. The social and legal challenges created by the norm of the monoracial family have long been a theme of Onwuachi-Willig’s work, but According to Our Hearts charts new territory by more clearly demonstrating the connection between racial formation and family formation. As a consequence, the book is destined to find fans among family law scholars, race discrimination scholars, and even lay readers interested in better understanding the role family connections play in triggering race discrimination.
Onwuachi-Willig uses the tragic love story of Alice Jones and Leonard “Kip” Rhinelander as a window into three key themes that she believes continue to inform discussions of the multiracial family today. The first theme, “interraciality,” allows us to explore the role that cross-racial family relationships play in triggering race discrimination. She argues that the study of race discrimination has largely neglected discrimination’s relational component. This relational component posits that discrimination may be triggered by others’ concerns about cross-racial intimate contact or family relations, rather than a single individual’s apparent racial status. The second theme is an examination of the fluid nature of racial identity in multiracial family units. Onwuachi-Willig explores the questions of power that emerge when the individual’s interest in defining her racial identity is juxtaposed against the competing interests of family members, the community, and the state. The book’s third, and perhaps most important theme is the racial hierarchy that exists between various types of interracial families, with black-white unions being the most disfavored. Onwuachi-Willig bravely takes on this hierarchy and deftly illuminates the hierarchy’s material and social consequences. Specifically, she suggests that the special disfavor saved for black-white marriages, particularly those involving black women and white men, ensures that wealth does not easily transfer through marriage and inheritance from white hands into black ones. Continue reading "Desegregating the Heart"
Jul 1, 2014 Steve GoldLexEnvironmental Law
Environmental law strives to improve the relation of Homo sapiens to the ecosystems that support human life and all other life on earth. Ever since Darwin we have known that just as each species affects its environment, the environment pushes back, exerting selective pressure in favor of adaptive variations. Evolution is the long-run product of ecology. At its best, environmental law puts this understanding to work in the service of people and nature. And yet, Professor Nicholas Robinson observes, the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law.
In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant. Continue reading "A Legal Beagle’s Voyage"
Jun 30, 2014 Ted SichelmanIntellectual Property Law
A recent American Bar Association “Corporate Counsel” seminar styled itself as “The Uncertain Arena: Claims for Damages and Injunctive Relief in the Unpredictable World of IP Litigation.” The seminar began by recounting the seemingly surprising, $1 billion-plus damage awards in the patent infringement actions, Carnegie Mellon v. Marvell Technology, Apple v. Samsung, and Monsanto v. DuPont. These blockbuster awards stand in stark contrast to the usual awards of $20 million or less in a typical case.
By and large, in-house counsel have chalked up much of these differences to the luck of the draw. Such a sentiment is all-too-common not only among practitioners, but also among policymakers and academics. No less than the eminent IP scholar Mark Lemley has remarked, “Patent damages are unpredictable because the criteria most commonly used are imprecise and difficult to apply.”
Mazzeo, Hillel, and Zyontz make an impressive contribution to the literature by casting substantial doubt on such views. Specifically, in their recent empirical study of district court patent infringement judgments between 1995 and 2008, they show that patent damages can be explained in a large part by a fairly small number of patent-, litigant-, and court-related factors. Continue reading "Are Patent Damages Uncertain?"
Jun 27, 2014 Nicola BarkerEquality
There appears to be a certain irony in writing in the Equality Section about a book produced by a group called “Against Equality”. But while their name may initially create an image of a reactionary conservative group trying to stem the tide of progressive social change, their agenda is to highlight and critique the inherent conservatism of the apparently liberal “gay rights” claims of equal marriage, equal military service, and equal protection under the law in the form of hate crime statutes. There is a great deal of feminist and queer scholarship making similar points but it has been too easy for gay rights campaigning groups, such as the deeply conservative Human Rights Campaign in the US, to by-pass any real engagement with this scholarship, much of which is inaccessible to the general public due to expensive paywalls. With this anthology, which includes both activist and academic writers, the Against Equality collective seeks to “be sure that our voices of resistance are not erased and written out of history“.
The anthology brings together three books, previously self-published: Against Equality: Queer Critiques of Gay Marriage (2010); Against Equality: Don’t Ask to Fight Their Wars (2011); and Against Equality: Prisons Will Not Protect You (2012). In each volume Conrad brings together a diverse collection of essays drawn from a variety of sources from zines, to blogs, to Facebook posts, and journal articles. Some of these contributions would already be familiar to an academic audience, others may not be, but all are interesting and impassioned refutations of a liberal reformist agenda that fails to properly challenge the underlying economic as well as gender, race, and class power structures. Continue reading "Against Equality"
