Monthly Archives: October 2015

Fringe Administrative Law

Anne Joseph O’Connell, Bureaucracy at the Boundary, 162 U. Pa. L. Rev. 841 (2014).

Last Term the Court gave administrative law scholars a lot to digest. Writing for the Court, the Chief Justice in King v. Burwell reinvigorated the major questions doctrine as a Chevron Step Zero inquiry, Justice Scalia in Michigan v. EPA ruled that the EPA must consider costs when a statute says to take action that is “appropriate and necessary,” and Justice Sotomayor in Perez v. Mortgage Bankers abolished the D.C. Circuit’s Paralyzed Veterans doctrine. The separate writings were perhaps even more intriguing. In Mortgage Bankers, Justices Alito, Scalia, and Thomas all indicated some appetite to revisit Auer deference. In Mortgage Bankers and the Amtrak case, Justice Thomas questioned the modern administrative state on separation of powers and nondelegation grounds, and then wrapped up the Term in Michigan v. EPA arguing that Chevron deference itself raises serious separation of powers concerns (and Justice Scalia may have suggested something similar in Mortgage Bankers).

These decisions all deal with foundational principles in administrative law. One decision, however, also grapples with the fringe: Department of Transportation v. Association of Railroads. At issue there was a congressionally created corporation—Amtrak—and its congressionally delegated authority to engage in joint rulemaking with a more traditional federal agency, the Federal Railroad Administration. The D.C. Circuit had held that Congress could not delegate regulatory power to Amtrak because it was a private corporation (at least for rulemaking purposes). The Supreme Court reversed, holding that Amtrak is a government entity for constitutional rulemaking delegation purposes. Continue reading "Fringe Administrative Law"

Is it Fair to Sell Your Soul?

Marco Loos & Joasia Luzak, Wanted: A Bigger Stick. On Unfair Terms in Consumer Contracts with Online Service Providers (Ctr. for the Study of European Contract Law, Working Paper No. 2015-01, 2015), available at SSRN.

The reliance of online service providers on lengthy terms of service or related documents is easily mocked. When I teach this topic, I can choose to illustrate the topic with the selling of souls, in cartoon or written form, point to the absurd length of the policies of popular sites, and highlight experiments that call us out on our love of the I Accept button. But behind the mirth lie a number of serious legal issues, and the recent working paper by Marco Loos & Joasia Luzak of the University of Amsterdam tackles some of them.

Loos & Luzak work at the Centre for the Study of European Contract Law, and their particular concern is with the European Union’s 1993 Unfair Contract Terms Directive. They point out that although the gap between typical terms and policies and the requirements of the Directive is often pointed to, it is rarely studied in detail. In their thorough study, the authors examined the instruments used by five well-known service providers, and evaluated them against the Directive’s stipulation that mass terms (those not individually negotiated with the consumer) be ‘fair’. Continue reading "Is it Fair to Sell Your Soul?"

Debt, Detroit, Democracy

Melissa B. Jacoby, Federalism Form and Function in the Detroit Bankruptcy, 33 Yale J. on Reg. (forthcoming 2016).

I feel only a bit sheepish for snatching Melissa Jacoby‘s Federalism Form and Function in the Detroit Bankruptcy (Yale J. on Reg. forthcoming) from all the other sections that could claim it, notably Constitutional Law and Courts Law. Although it is the richest law review article I have read in a while—sweeter for being the first in a cycle—I worry that it might fall through the interdisciplinary cracks. Debt rarely takes center stage in constitutional theater these days, ditto bankruptcy procedure in procedure. Even by bankruptcy standards, the project might seem exotic—a deep dive into audio recordings and other primary sources from Chapter 9 (municipal) bankruptcy hearings. Whatever your discipline, you would be mad to miss it. The subject is the biggest-ever public debt restructuring under a statutory scheme. The article is packed with doctrinal, theoretical, and methodological insights. The treatment is sophisticated and empathetic. The policy salience is obvious, as Detroit taps the markets, Chicago totters, Puerto Rico defaults, and the United Nations and the Pope endorse bankruptcy for states.

Chapter 9 of the U.S. Bankruptcy Code is one of the few statutory regimes in the world for public debt restructuring. Its effort to balance federalism and democratic deference against the need to put an over-indebted (likely mismanaged) political unit on a sound financial footing has inspired imitation and criticism. Chapter 9 combines a high barrier to filing with extraordinary deference to the debtor’s policy decisions once it files. There is no bankruptcy estate, no equity, and no liquidation. In theory, states retain sovereignty over municipalities, while federal bankruptcy courts must keep their noses out of municipal affairs. Some commentators have argued that such reticence fuels debtor moral hazard; others have used it to highlight the limitations of Chapter 9 as a framework for bigger, more complex political units. Continue reading "Debt, Detroit, Democracy"

What We Like

Annie Brett

Annie Brett

Jotwell began on October 27, 2008 with the goal of identifying new and interesting legal scholarship. Over the past seven years, Jotwell has recruited more than 300 Section and Contributing Editors who are leading academics (or in a few cases leading practitioners) and asked them each to write a short essay once a year identifying one of the best examples of recent scholarship relating to the law in their respective fields. This year, we wanted to reflect on where Jotwell is, and attempt to measure how well it is achieving its goals.

Jotwell has two objectives. On the one hand, we wanted to provide a service for persons who are not trying to be expert in a particular sub-field of law but still would like to keep up with the major developments in it. Given the proliferation of law reviews,1 and the resulting evolution away from having a few top journals act as the gatekeepers for high-quality scholarship,2 it is increasingly difficult for legal academics to know what is happening in their own fields, let alone what is most important and relevant in other fields. We expected, therefore, that some of the reviews would inevitably be of work by famous scholars and/or work appearing in top-ranked journals. On the other hand, we hoped also that our reviewers would be moved to call attention to significant work published in less prestigious journals and works authored by younger academics and others who were not yet widely recognized.

Although these goals were communicated to Jotwell’s Contributing Editors, and are noted in our author guidelines, we did little behind the scenes to enforce or even incentivize adherence to either goal. Instead we let Jotwell’s editors determine on their own what works of current scholarship they believe are worth recognition. Our thinking was that having assembled such a talented group of contributors we should leave it to them to decide what they liked and wanted to recommend.

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  1. The number of law reviews increased from approximately 60 in 1960 to 616 in 2010. Alena L. Wolotira, From a Trickle to a Flood: A Case Study of the Current Index to Legal Periodicals to Examine the Swell of American Law Journals Published in the Last Fifty Years (June 21, 2011), available at SSRN. []
  2. Although no longer seen as gatekeepers for quality scholarship, the top journals are effectively gatekeepers in a different sense: the institutional affiliations of the authors. For example, in the 2014-2015 issues of the Harvard, Yale and Stanford law reviews, over 60% of the scholars published were at schools in the top 10, while less than 15% were from schools outside the top 20 (N = 106). See also Reza Ibadj, Fashions and Methodology, in Rethinking Legal Scholarship: A Transatlantic Interchange (forthcoming), available at SSRN (finding that 71% of articles published in top 20 law journals were authored by academics at top 20 law schools). []

Can Abusive Constitutionalism Be Checked?

David Landau & Rosalind Dixon, Constraining Constitutional Change, 51 Wake Forest L. Rev. (forthcoming, 2015), available at SSRN.

Changes to constitutional law do not always further beneficial ends. Sometimes, in fact, they do the opposite, with political actors utilizing mechanisms of constitutional law-making to consolidate their powers, entrench themselves in office, marginalize opposition, and otherwise undermine basic democratic values. Under these circumstances, a constitution can find itself in the perverse position of enabling rather than constraining abusive governmental action—subverting the very principles that it was originally intended to promote.

Comparative constitutional scholars have puzzled over the question of how to prevent “abusive constitutionalism” of this sort. To date, they have focused largely on mechanisms of constitutional amendment, considering ways in which an existing constitutional regime might structure its internal rules of change so as to frustrate a would-be autocrat’s anti-democratic amendment efforts. For example, timing requirements and supermajority voting procedures might render undesirable amendments especially difficult to enact; “eternity clauses” might safeguard essential provisions of a constitutional text against the threat of repeal; and the doctrine of “unconstitutional constitutional amendments” might empower courts to invalidate some forms of anti-democratic action after the fact. In these and other ways, amendment-restricting devices might manage to prevent at least some abusive amendments from ever taking effect.

These are important tools, which have enjoyed some measure of success in the real-world. But, as Professors David Landau and Rosalind Dixon point out in their wonderfully thought-provoking article, Constraining Constitutional Change, even a fail-safe set of constraints on the amendment process cannot eliminate the specter of abusive constitutional change. Looming in the background is the alternative and more daunting possibility of wholesale constitutional replacement—the outright rejection of an old constitutional order (including its amendment rules) in favor of a brand-new constitutional regime. Where amendment rules threaten to foil a would-be autocrat’s abusive constitutional ambitions, that official might simply choose to take the replacement route instead. Continue reading "Can Abusive Constitutionalism Be Checked?"

Discipline and Fine

Alexandra Natapoff, Misdemeanor Criminalization, 68 Vand. L.Rev. 155 (2015).

The recent cascade of highly-publicized murders of American black men and women by police and by white “domestic terrorists” has brought into public debate one of the most spectacular forms of American anti-black racism. Ruth Wilson Gilmore defines this racism as “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” Michael Brown’s body—killed by police in Ferguson, Missouri in August 2014 and subsequently left on the street for hours—has come to literally embody American contempt for black life.

But Ferguson also exposed a less lethal manifestation of American racism: the reliance of strapped-for-cash municipalities on fines and fees imposed on the poor through the criminal justice system. In her article, Misdemeanor Criminalization, Alexandra Natapoff warns us that one attempt to scale back mass incarceration may, paradoxically, expand racism in this subtle but insidious form. Turning felonies such as drug crimes into misdemeanors, she argues, expands the potential for American cities and counties to make money off poor people—with disturbing implications both for people of color and for the nature of criminal justice. Continue reading "Discipline and Fine"

Masculinities Theory Helps Understand Employment Discrimination and Could Help Reduce It

Ann C. McGinley, Through a Different Lens: Perspectives on Masculinity and Employment Discrimination Law (Forthcoming 2016, NYU Press)

Ann McGinley has made significant contributions to the legal literature concerning employment discrimination in general and to the social science concerning “masculinities” in particular. In many ways, this book is a culmination of a significant number of articles and a prior book of edited essays on the topic of masculinities and the law. With the new focus on issues of masculinity highlighted in the case of Miami Dolphin football player, Jonathan Martin, who quit the team because of harassment by several of his teammates, there is beginning to be greater general awareness of the multifaceted way in which various masculinity behaviors are used to harass and discriminate against women, people of color, and people perceived as failing to behave in appropriate gender roles.

More recently, there is a focus on the role of stereotypes and masculinity games that have been barriers to women becoming Hollywood directors.1 So, this forthcoming book is quite timely. It should have a significant impact on how we discuss and resolve questions arising from the role of masculinity games in employment. Continue reading "Masculinities Theory Helps Understand Employment Discrimination and Could Help Reduce It"

How to Get Away with Negligence

Robin L. West, Gatsby and Tort, in American Guy: Masculinity In American Law And Literature 86 (Saul Levmore & Martha C. Nussbaum ed., 2014), available at SSRN.

In Gatsby and Tort, Robin West engagingly argues that Fitzgerald’s famous novel highlights serious shortcomings of tort law as it has been traditionally understood, and of modern efforts to supplant or reconceptualize it.

West begins by observing that Gatsby would make for a good torts exam. In its ‘fact-pattern’ one can find bases for claims of battery, fraud, and criminal conversation. There is also a paradigmatic example of negligence—Daisy Buchanan, speeding in Gatsby’s Rolls Royce, runs down Myrtle Wilson. (Myrtle, Tom Buchanan’s mistress, had darted out into the street while escaping her husband George’s efforts to cloister her.) As West further notes, the novel ends with narrator Nick Carraway condemning the despicable Buchanans on terms that sound in tort: “They were careless people, Tom and Daisy—they smashed up things and creatures and then retreated back into their money or their vast carelessness, or whatever it is that kept them together, and let other people clean up the mess they had made.” (P. 3.) Continue reading "How to Get Away with Negligence"

Class Action Mismatch: Securities Class Action Jurisprudence and High-Frequency Trading Manipulation

Tara E. Levens, Too Fast, Too Frequent? High-Frequency Trading and Securities Class Actions, 82 U. Chi. L. Rev. 1511 (2015).

For faculty members with retirement savings in TIAA-CREF or brokerage accounts, market events of summer 2015 might prompt the conclusion that August is the cruelest month of all. Along with millions of other small investors, academics throughout the United States could only watch helplessly as volatile markets took shareholders on a daily roller-coaster ride resulting in devalued accounts.

In the wake of the 2008 market crash, small investors have become increasingly educated about the structural and institutional drivers of extreme market volatility: automatic, computerized trading techniques over which the small, individual stakeholder has little knowledge or control. Most prominent among these market innovations has been the advent of computerized, high-frequency trading (HFT), driven by mathematical algorithms.

In her thoughtful and innovative comment, Too Fast, Too Frequent? High-Frequency Trading and Securities Class Actions, Tara E. Levens explores the interesting question whether the prevalence of HFT techniques resulting in massive financial losses to small-stake investors will open the door to new securities class actions. Her general conclusion is that current legal theories undergirding various types of securities law violations are mismatched with the harms induced by HFT. Consequently, Levens attempts to formulate a jurisprudence for new securities class actions based on the unique injuries resulting from HFT manipulation. In essence, Levens’ task is a riff on the theme of fitting new wine into old bottles. Continue reading "Class Action Mismatch: Securities Class Action Jurisprudence and High-Frequency Trading Manipulation"

Nobody’s Perfect, Not Even the IRS

Leigh Osofsky, The Case for Categorical Nonenforcement, 69 Tax L. Rev. (forthcoming, 2015), available at SSRN.

We tax academics in law schools have an affinity for the logical operation of rules. We could not remain immersed in the intricacies of the income tax—and therefore remain competent as scholars and teachers—if we did not. Considerable resources have been devoted to the elaboration of rules developed through the logical application of a few basic principles. These principles, including those associated with the Haig-Simons definition of income and those governing accounting for capital, allow us to view this body of law as determinative, and thus capable of uniform application. In other words, the income tax system has long used this logic as the basis of its claim to rule-of-law legitimacy. The resulting set of rules is elaborate, indeed, it often seems as if it is among the most elaborate sets of rules ever devised.

But as specialists engaged in this elaboration, we must also understand that a legitimate tax system cannot be maintained merely by the articulation of these rules. The rules themselves will never be self-enforcing. And the mere elaboration of additional rules will never close the gap between the revenue that would be collected under a perfect application of the rules and the revenue that will actually be collected.

Leigh Osofsky’s article, The Case for Categorical Nonenforcement, soon to appear in the Tax Law Review, provides an opportunity to explore this tension between the formal elaboration of the tax law and the capacity of the Internal Revenue Service to enforce it. The tension is easily seen throughout the actual operation of the income tax law, whether one looks at the actual treatment of large partnerships, frequent flyer miles, fringe benefits claimed by non-employees, or many other provisions. Continue reading "Nobody’s Perfect, Not Even the IRS"