Yearly Archives: 2014
May 21, 2014 Suzette M. MalveauxCourts Law
Whether the Federal Rules of Civil Procedure should be trans-substantive (as they ostensibly are) has been hotly debated since the Rules’ inception. One wonders, after three-quarters of a century, if another article examining this central tenet of the American civil litigation system can make a unique contribution to the literature. David Marcus’s recent article, Trans-Substantivity and the Processes of American Law, demonstrates that the answer is “yes.” Building on his excellent 2010 article, The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure, Marcus challenges proceduralists to broaden their examination of trans-substantivity beyond the confines of civil procedure law.
This article examines the principle of trans-substantivity in the context of what Marcus calls “process law” —which includes not only procedural law, but administrative and interpretive law as well. Marcus uses the Supreme Court’s 2009 decision in Ricci v. DeStefano to illustrate how the Court may draw upon federal civil procedure, federal administrative law, and statutory interpretation doctrine in a single case. He draws upon this example to encourage scholars not to cabin their understanding of the pros and cons of trans-substantivity to a single species of process law. The interrelationship and overlap of these doctrines are significant. Continue reading "Trans-Substantivity Beyond Procedure"
May 20, 2014 Robert RosenCorporate Law
I would not normally think of a casebook as appropriate for JOTWELL. It is the particular fit between a teacher’s ambitions and the material in the casebook that makes a teacher like the casebook, perhaps even a lot. A good casebook is a shell that the teacher and students can inhabit and learn to carry. It is not a well-formed argument of general applicability, such as would be found in the work that JOTWELL generally applauds.
Yet, in JOTWELL, I commend to your attention Geoffrey Miller’s The Law of Governance, Risk Management, and Compliance. This casebook is a convincing argument that compliance and risk management are fields of study appropriate for legal education. It expands the law school field of corporate governance from its current restricted view, discussing shareholders and boards, to one that encompasses all the actors within and without corporations who have an impact on compliance. Continue reading "New Law School Fields of Study: Compliance and Risk Management"
May 19, 2014 JotwellJotwell
“Legal Scholarship We Like And Why It Matters” is the subject of Jotwell’s 5th Anniversary Conference. If you’d to participate, we need your paper proposal.
The submission deadline is TODAY, May 20th.
May 19, 2014 Jack BeermannConstitutional Law
Emily J. Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (Princeton University Press, 2013).
I am on the prowl. It’s 1 a.m. and I’ve been looking for Mr. (or Ms.) Rights all night. I’ve been hanging out in every Article of the Constitution of the United States and I have been deep into the pages of the United States Reports and the Federal Reporter. Oh, I have found plenty of negative rights, like the right to be free from cruel and unusual punishment and the right not to be twice placed in jeopardy for the same criminal act. But I need something more positive in my life. I want those things that make a person happy, like medical care, clean air and water, good working conditions, and a good education for my kids. I want positive rights.
Even though I turn on my hundred-watt charm, the federal courts keep turning me down. Then the person next to me slaps a book on the bar and says, “Take a look at this. I think it’ll get you what you want—or at least what you need.” Continue reading "Looking for Mr. (or Ms.) Rights"
May 16, 2014 William FunkAdministrative Law
Kathryn E. Kovacs,
Superstatute Theory and Administrative Common Law, 90
Indiana L. J. (forthcoming 2014), available at
SSRN.
Most administrative law aficionados would think of the Administrative Procedure Act as a “superstatute,” but they might not all focus on what that might mean. Kathryn Kovacs has undertaken to tease the meaning of the APA as a superstatute and address the implications of such a characterization. They might not be what you would imagine.
Professor Kovacs begins by asking to what extent is administrative law “common law.” The APA is, of course, a statute, but it is viewed as largely codifying the then-existing common law. Moreover, after its passage courts continued to develop a common law of administrative law both to flesh out the ambiguous provisions of the APA and quite clearly to add on to them. While Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), may have drawn the curtain on new judicial inventions to administrative common law, it did not repeal those that had become well ingrained in the case law. Professor Kovacs focuses on two such inventions that have no basis in the text or history of the APA: deference to the military in matters subject to the APA and the ripeness doctrine. Continue reading "The APA as “Superstatute” and What Does That Mean?"
May 14, 2014 Michael C. HarperWork Law
David Weil’s new book on the fragmenting of internal labor markets in many American industries, The Fissured Workplace, should be read by all who wish to understand how the challenges to enforcing laws designed to protect American workers have become greater as the institutional structures and processes through which American businesses produce and deliver goods and services have continued to evolve. This book should be read not primarily because President Obama last year nominated Weil, a Boston University School of Management Professor, to head the Wage and Hour Division of the Department of Labor or because the book includes several chapters stressing the importance of strategic public enforcement and the role of unions and other non-governmental worker advocacy groups in changing workplace culture. Rather, the primary value of the book is its rich description of the variant ways by which successful American businesses that sell branded goods and services have externalized the costs of employment law violations by delegating to other businesses the responsibility for providing and supervising the labor input for their branded products. This description supports the book’s most important recommendation, a recommendation that would require—beyond stronger enforcement of current laws—a re-internalization of the costs of employment law violations to those businesses that monitor and control the production of goods and services sold under their brands.
Weil describes three kinds of externalization: subcontracted workplaces, outsourced supply chains, and franchised retail operations. For each, he provides examples of lead businesses that use externalization to concentrate on their core competencies of branded product design, development, and marketing, as well as to escape certain costs, including labor costs, that would have to be incurred without externalization. Weil explains how externalization has been facilitated by technological developments that enable lead businesses to protect differentiated brands, and associated high profit margins, through close monitoring and coordination of the quality and timely production of branded goods and services. Modern computer-based technology provides this brand protection without some of the higher labor costs of non-union, as well as unionized, large internal labor markets. Furthermore, as long as the lead company delegates actual control over a subcontractor’s or franchisee’s workforce to the subcontractor or franchisee, it can escape at least some of the costs of compliance with employment laws like FLSA and OSHA, in addition to potential workers’ compensation liability. There is good reason to think that subcontractors and franchisors often cannot pass on employment law compliance costs to the dominant branding companies with which they are in business. While subcontractors’ and franchisors’ reduced concern with reputational costs and their tight profit margins encourage their non-compliance, their relatively small size and less permanent work forces make enforcement less likely. Further, lead companies with differentiated brands generally can transfer their business to competing contractors or other potential franchisees. Continue reading "Internalizing The Costs Of Employment Law Violations"
May 13, 2014 Scott HershovitzTorts
Imagine you are trying to write a mission statement for tort law. What aspiration would you put on paper? Tort theorists will find Linda Radzik’s answer at once familiar and foreign. In Tort Processes and Relational Repair, Radzik suggests that tort should pursue corrective justice. But she rejects the familiar Aristotelian conception of corrective justice, on which wrongdoing calls for compensation that offsets the harm caused. Instead, she suggests that corrective justice requires reconciliation. According to Radzik, tort should aim to repair the relationships ruptured by wrongdoing, rather than the harms that result from it.
The problem with the Aristotelian picture of corrective justice, Radzik says, is that it mistakes what’s wrong with wrongdoing. If you think that corrective justice consists in compensation for harm done, Radzik explains, then you are apt to think that what is wrong with wrongdoing is that it damages something that belongs to the victim, or deprives her of something she is entitled to have. But, as Radzik points out, there are wrongs that do not result in harms, and harms that did not result from wrongs, so it hardly seems like harm could be the essence of wrongdoing. Continue reading "Patching Things Up"
May 12, 2014 Gerry W. BeyerTrusts & Estates
Professor Daniel B. Kelly’s well-researched and carefully reasoned article discusses the traditional justifications for restricting testamentary freedom, not only from a legal perspective, but also an economic or functional one. The article first discusses the structure and goal of American succession law and the relevance of distinguishing between the ex ante perspective versus the ex post perspective. Next, the article explains the economic justifications for restricting testamentary freedom. Finally, the article critically analyzes the legal limitations on testamentary freedom.
Professor Kelly begins by noting the fundamental principle of American succession law—testamentary freedom. One justification for the law generally deferring to owners of property in deciding how to utilize or transfer their property is that it promotes social welfare. An advantage of testamentary freedom is that it aligns an individual’s “incentive to work, save, and invest with what is socially optimal,” which would facilitate long-term capital accumulation and productivity. Another advantage of testamentary freedom is that, in many situations, the testator is likely to be better informed than legislators or judges on how best to distribute the testator’s property. Finally, Professor Kelly notes that testamentary freedom may benefit familial relationships. However, even with all these advantages, a system based on testamentary freedom does not always coincide with the overall goal of advancing social welfare, at least in part because the law sometimes fails to incorporate the ex ante perspective. Consequently, the issue arises of when should the courts facilitate testamentary freedom, even though doing so permits a testator to assert “dead hand” control, and when should the courts restrict testamentary freedom, even though doing so means intervening in the testator’s disposition of property. Continue reading "“Take your stinking paws off [my property], you damned dirty [judges and legislators]!”*"
May 9, 2014 Juliet StumpfLexImmigration
César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. (forthcoming 2014), available at SSRN.
When the news came out that nearly half a million noncitizens now find themselves in immigration detention, it struck me that this may be the most invisible civil-rights issue of our era. Immigration Detention as Punishment, by César Cuauhtémoc García Hernández, offers a compass through this tricky and contested terrain.
Formally, immigration detention is a civil status, an administrative adjunct to deportation. Detained noncitizens have lesser procedural protections against unnecessary or excessive detention than the criminal justice system provides to pre-trial detainees. Yet, immigration detention functions to deprive noncitizens of social and physical liberty in the same way as criminal incarceration. The government detains noncitizens in the same jails and prisons as criminal defendants and the convicted. The lives of noncitizens in detention are regulated in the same way as the lives of those whose confinement results from the criminal justice system. Continue reading "Civilizing Civil Detention"
May 7, 2014 Eli WaldLegal Profession
Context matters to lawyers. The representation of clients, advice-giving, advocating, drafting, and negotiating—indeed, the very exercise of professional judgment—all take place in a context that shapes and informs lawyers’ decision-making. Context, however, plays only a minimal role in the American Bar Association’s Model Rules of Professional Conduct (“Rules”). While some comments to the Rules often provide contextual examples, an underlying theme of the Rules is their universal appeal: the Rules are explicitly meant to be a one-size-fits-all model for all lawyers, irrespective of context. Some argue that the universal nature of the Rules renders them conceptually anachronistic and practically useless, and have called for the promulgation of rules of conduct more in tune with the increasingly diverse realities practicing lawyers face. Such a contextual critique consists of two steps. The first is empirical. Promulgating rules that meaningfully address the realities that lawyers face in practice requires an empirical understanding of these very realities. The second step is normative. Once empirical evidence is gathered, one has to decide what to make of it and whether and how to incorporate it into the Rules.
Lawyers in Practice: Ethical Decision Making in Context, a new volume of empirical work edited by Leslie Levin and Lynn Mather, significantly contributes to this universal-contextual discourse. It consists of sixteen excellent chapters examining in detail lawyers’ decision-making processes across thirteen different legal contexts including family, immigration, and personal injury, as well as corporate, securities, and IP law. “[T]he organized bar and many law schools,” write the editors, “continue to focus their discussion of legal ethics primarily on bar rules of professional conduct. That approach, this book suggests, is a serious mistake.” (P. 4.) Such a focus on the Rules is a mistake, assert Levin and Mather, because it ignores the importance of context: “[t]he chapters in this book look at lawyers’ decisions from the bottom up—that is, from the perspective of lawyers in practice—and not from top-down rules that often reveal more about the aspirations of the profession than the reality.” (P. 11.) “We hope,” conclude the editors, that “this book will help narrow the gap between what sociological scholars are learning about lawyers’ ethical decision making in context and the legal profession’s approach to the teaching and regulation of lawyers.” (P. 21.) Continue reading "The Importance of Context"
