Yearly Archives: 2015

New Jotwell Section: Property

Today we inaugurate a new Jotwell section on Property, edited by Donald J. Kochan, Professor & Associate Dean for Research and Faculty Development at the Chapman University Dale E. Fowler School of Law, and Tanya Marsh, Professor of Law at Wake Forest University School of Law. Together they have recruited a stellar team of Contributing Editors.

The first posting in the Property section is Property Law, Law & Economics, and Means for Reaching Distributive Goals by Ezra Rosser. Continue reading "New Jotwell Section: Property"

Shining Some Light into the Black Box of Agency Statutory Interpretation

Christopher J. Walker, Inside Agency Statutory Interpretation, 67 Stan. L. Rev. 999 (2015).

Agencies routinely interpret statutes while drafting rules. Yet very little is known about how agency rule drafters approach statutory interpretation when writing rules. In a fascinating article that was recently published in the Stanford Law Review, Professor Christopher J. Walker shines some much needed light into this area.

Walker’s article is modeled off of important empirical work Lisa Bressman and Abbe Gluck previously conducted that studied congressional drafters’ knowledge of and use of different administrative law doctrines and interpretive tools. Rather than focusing on congressional drafters as Bressman and Gluck already have done, Walker’s article focuses on how agency rule drafters approach statutory interpretation when writing rules. Walker’s article reports the findings of a detailed 195-question survey that he administered online over a five-month period to agency rule drafters who work at seven executive agencies (Agriculture, Commerce, Energy, Homeland Security, Health & Human Services, Housing & Urban Development, and Transportation) and two independent agencies (the Federal Communications Commission and the Federal Reserve). Walker sent the survey to 411 agency officials within these agencies, and 128 responded, resulting in a 31 percent response rate. All of the survey respondents were career civil servants rather than political appointees. Continue reading "Shining Some Light into the Black Box of Agency Statutory Interpretation"

Disabilities, Caregiving Responsibilities, and Employer Requirements

In workplace law, we often see groups of workers that are marginalized by their employers or fellow employees. The treatment of these employees can dramatically affect the working environment.

In her article, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities, Nicole Buonocore Porter explores two specific groups that remain heavily stigmatized in modern society – those with caregiving responsibilities and those that have disabilities. Professor Porter highlights the connection between these employees and their treatment in the workplace. While the link between these two groups is not readily apparent, Professor Porter carefully addresses the disparate treatment of these two types of workers. Continue reading "Disabilities, Caregiving Responsibilities, and Employer Requirements"

Theoretical and Practical Concerns in Moving to a Federal Inheritance Task

Wendy C. Gerzog, What’s Wrong with a Federal Inheritance Tax, 49 Real Prop., Tr. & Est. L.J. 163 (2014), available at SSRN.

Professor Wendy Gerzog has written a thought-provoking article reviewing inheritance tax systems both in the United States and abroad, and then Professor Lily Batchelder’s proposed comprehensive inheritance tax (CIT).1 Professor Gerzog has three principal criticisms of inheritance tax systems: (1) they inequitably tax the recipient based on the closeness of relationship to the donor or decedent (which rationale is “neither a good measure of ability to pay nor an effective means of wealth redistribution,”); (2) they lack a gift tax back-up; and, (3) they apply to more individuals, increasing administrative costs and decreasing compliance rates. (P. 200) As to Professor Batchelder’s CIT, Professor Gerzog supports its elimination of the “disparity of burdens for some beneficiaries under the current transfer system” and its solving “the problems of timing and valuation abuses that involve actuarial problems,” but Professor Gerzog contends that the CIT “engenders its own problems”: (1) increased family wealth; (2) increased valuation abuse; (3) increased recordkeeping costs; (4) increased compliance problems; and, (5) increased complexity. (P. 201.) Professor Gerzog concludes that “the transfer tax system works relatively well and has significant practical and theoretical advantages over a federal inheritance tax or a CIT.” (P. 201.)

Professor Gerzog believes that basing tax rates on a decedent’s relation to a beneficiary is “objectionable on fairness considerations.” (Pp. 164-165.) Given that most wealthy decedents leave their property to other wealthy individuals and the majority of beneficiaries are the decedent’s close relatives, there are comparatively few estates with non-relative heirs, and “no policy rationale supports subjecting those few unrelated individuals to either a higher or a lower tax rate.” (P. 165.) Professor Gerzog contends that an inheritance tax with greater tax rates when there are “a fairly small number of the beneficiaries” or “a distant familial relationship … of the decedent’s beneficiaries” “cannot realistically achieve the reduction of concentrated family wealth and its associated power.” (P. 166.) Continue reading "Theoretical and Practical Concerns in Moving to a Federal Inheritance Task"

Attention Jotwell RSS Feed Readers

This week Jotwell is having its first-ever fund-raiser. Regular visitors to the site probably already noticed a large yellow popup informing then of this fact, but people who get Jotwell via the RSS feed or by email will have been denied that experience. There is no reason for the hundreds of people who read us via the RSS feed–or by email–to be left out.

So here’s the pitch: Please will you make a small donation to support this journal? All the faculty who write for and edit Jotwell do so for free, but even so, producing the journal is not costless: we need to pay for our server, for our student editors, and for various types of technical and design support, including a coming makeover to keep up with a procession of software updates. This adds up.

We don’t charge for Jotwell and we don’t run any ads, and we would like to keep it that way. If every Jotwell reader donated just $7 a year, we’d cover all of our costs…but alas not everyone is generous.

If you can afford it, please don’t be a free rider. If you like us lots–or even just some–please make a small donation? Of course, if you want to make a large one, we would not say no to that either.

Thank you.

Yours sincerely,

A. Michael Froomkin
Jotwell Editor-in-Chief

A Holy Grail for Pluralist Theory?

Ronen Perry, Pluralistic Legal Theories: In Search of a Common Denominator, 90 Tul. L. Rev. ___ (forthcoming 2015), available at SSRN.

Can pluralistic legal theories be unified around a common framework? That’s the tantalizing question that Ronen Perry tackles in his recent essay. Perry is searching for a holy grail—a unifying principle for all pluralistic theories of law. Even if the holy grail does not exist, the quest itself proves interesting and worthy of consideration.

Modern tort theorists have advanced at least three rationales for the tort system: deterrence, individualized justice, and compensation. Under a deterrence-economic perspective, the goal of the tort system is to prevent accidents in an efficient manner. On the other hand, an individualized justice theorist views the tort system as a way to remedy a wrong caused by one to another. Finally, under a compensation or distributive justice theory, tort law’s goal is to spread loss and provide compensation to victims of tortious injury. But few scholars accept these multiple theories, and instead focus on their own singular rationale. Continue reading "A Holy Grail for Pluralist Theory?"

Personal Jurisdiction Based on Intangible Harm

Alan M. Trammell & Derek E. Bambauer, Personal Jurisdiction and the “Interwebs,” 100 Cornell L. Rev. 1129 (2015).

Conduct channeled through cyberspace can cause harm in physical space. That leakage across a conceptually amorphous border has befuddled courts attempting to adapt personal jurisdiction doctrine to the Internet. At least two distinct problems have combined to produce an inconsistent and unstable jurisprudence. First, the Internet is a buffer between the defendant and the forum. This technological intermediary diffuses the defendant’s geographic reach, complicating analysis of the defendant’s contacts and purpose. Second, activity on the Internet often leads to intangible harm, such as a sullied reputation or devalued trademark. These intangible injuries can manifest in places that are difficult to predict ex ante and to identify ex post.

Accordingly, the Internet creates spatial indeterminacy in a legal context that reifies geographic boundaries. Many courts have reacted by trying to tame complexity with an ostensibly elegant tripartite framework for analyzing jurisdiction. The “Zippo test”—named after an influential yet often-criticized district court decision—posits that jurisdiction based on Internet contacts depends on pigeonholing websites into categories. A “passive” website that merely provides content is a weak basis for jurisdiction, while jurisdiction usually exists over websites that are commercial platforms for repeated transmission of files. Between these extremes are “interactive” sites that require a context-sensitive inquiry into the nature of the interactions. Continue reading "Personal Jurisdiction Based on Intangible Harm"

A Different Kind of Marriage Equality

If you are married to a miser who controls the family finances and refuses to give you money outside household expenses, what can you do about it other than get a divorce? What are the consequences of unequal power over property in marriage? In her article The Illusion of Equality: The Failure of the Community Property Reform to Achieve Management Equality, Elizabeth Carter reminds family law scholars and practitioners of the importance of these questions raised so memorably in the 1953 case of McGuire v. McGuire.1 There, Lydia McGuire sued her husband for maintenance and discovered that there was no legal remedy for her situation. In other words, the law could not compel spouses to be equitable about the family finances and property or give redress to past inequalities in an extant marriage. In the decision denying Lydia McGuire relief, Justice Messmore of the Nebraska Supreme Court found that “[t]he living standards of a family are a matter of concern to the household, and not for the courts to determine…. As long as the home is maintained and the parties are living as husband and wife it may be said that the husband is legally supporting his wife and the purpose of the marriage relation is being carried out.”2

Community property states, which historically had been more egalitarian in distributing ownership of marital property during marriage and at dissolution than common law states before their reform of post-dissolution property distribution, still had gendered management rights while marriages were intact. In most extant marriages, management rights or the rights to invest or use property such as paychecks, investments, and even real property had historically been vested in breadwinning husbands. Confronted with the possibility of the passage of the Equal Rights Amendment and the evolving Supreme Court jurisprudence in equal rights, community property states reformed their management rules in the 1960s and 70s to be gender neutral. One would imagine that with the increase in women’s participation in the workforce during this period and the reform of rules to formally bestow equality, de facto management would also become more or less equal. However, these neutral laws that “facially granted the spouses equal management rights over their community property” have largely failed to equalize management rights of that property in fact. (P. 854.) That is to say, the rules did not change the practices in family property management. In her article, Carter reminds us that now some seventy years after the McGuire case, and in spite of the dramatic changes in family and gender roles and the reform in community property states to gender-neutral management rules, the ability to control family resources continues to be demarcated unequally along gender lines in heterosexual marriages. Continue reading "A Different Kind of Marriage Equality"

A New Tax Policy Criterion: Stability

Jason Oh, Will Tax Reform Be Stable?, UCLA School of Law, Working Paper Series Law & Econ. Paper No. 15-16 (2015), available at SSRN.

Fairness, efficiency, simplicity, and revenue-raising capability (not necessarily in that order) have long been the hallmarks of good tax policy. In a forthcoming article, Will Tax Reform Be Stable?, Jason Oh introduces a new criterion: stability. Oh persuasively argues that certain tax reform may be more or less stable than others, and contends that it is possible to analyze and predict stability. Moreover, as Oh explains, understanding stability is essential in order to determine the durability of any good (or bad) tax reform.

This article is impressive because of both its potential importance and its ambition. Oh is right, of course, that, all else equal, a reform that quickly unravels is unlikely to be as impactful as one that does not. In this regard, the article’s insights are akin in importance to the realization that taxpayers will change their behavior in response to legislation (for instance, by decreasing their sales of capital assets if the capital gains tax goes up), a realization that led to the practice of dynamic scoring of legislation. In pushing us to recognize a new dimension for evaluating tax policy, Oh has to color outside the familiar lines of existing debates. His willingness and ability to do so merits attention, and may well garner it in policymaking circles. Continue reading "A New Tax Policy Criterion: Stability"

The World War II Roots of the Modern American Administrative State

Mariano-Florentino Cuéllar, Administrative War, 82 Geo. Wash. L. Rev. 13431445 (2014), available at SSRN.

The study of administration is thriving – so much so that even people outside the field are taking note. A recent review essay in the Boston Review (and a cautionary response by Karen Tani) demonstrate the breadth of this scholarship, which includes studies that push the origins of the administrative state back to the early republic and studies that examine (in a term coined by Sophia Lee) administrative constitutionalism throughout the federal government. The New Deal continues to loom large, however, in research into the expansion and entrenchment of the modern administrative state; according to Mariano-Florentino Cuéllar, this account is incorrect. As he argues, “during the 1930s the federal administrative state remained a pale shadow of its future self.” (P. 1354.) Instead, much as James T. Sparrow argues that World War II made the modern American state, Cuéllar argues that World War II made the modern American administrative state.

Cuéllar describes how pre-World War II agencies were hamstrung by limited powers and limited resources, limits which soon became impractical. World War II changed the political and economic context in which agencies operated, opening the door to legal changes that strengthened the agencies. Mobilization for war required greater administrative capacity, which in turn required more money to pay for agency operations. In response, federal courts expanded agencies’ subpoena powers, which markedly improved agencies’ ability to investigate. Courts also moved from a formalist understanding of the non-delegation doctrine (Schechter) to a functionalist one (Yakus) that legitimated broad congressional delegations of authority to agencies. And Congress enabled mass taxation to pay for expanded administration. (Funding is key to any discussion of administrative capacity; a chart in Cuéllar’s appendix showing the increase in federal employees during the war make this clear.) By giving agencies the tools they needed to endure, Cuéllar argues, wartime actors embedded administrative governance in American political life. Continue reading "The World War II Roots of the Modern American Administrative State"