Yearly Archives: 2015

A Need for Equity in Immigration Law (Congress, are you listening?)

Jason A. Cade, Enforcing Immigration Equity, 84 Fordham L. Rev. (forthcoming 2015), available at SSRN.

In the late twentieth century, Congress amended the immigration laws to severely limit the power of immigration judges, the agency’s adjudicators, to grant relief from removal on equitable grounds. At the same time, Congress expanded the categories of activities that render a foreign national removable. The result of the statutory tinkering was that it was much easier to be removable and much harder to be granted relief from removal.

The severity of those reforms is well known. Professor Jason Cade’s contribution to the discussion is that he persuasively argues that those statutory reforms from twenty years ago are linked to the most visible controversy in immigration law right now:  President Obama’s executive actions creating the chance for a temporary reprieve from removal. Continue reading "A Need for Equity in Immigration Law (Congress, are you listening?)"

Care to take a peek into the mind of tax lawyers?

Elaine Doyle, Jane Frecknall Hughes and Barbara Summers,  An Empirical Analysis of the Ethical Reasoning of Tax Practitioners, 114 J. Bus. Ethics 325 (2013).

The literature on lawyer ethics has been dominated by philosophy and sociology for many years. Consistent with the rise of behavioral economics and the more urgent focus on ethics in business schools, social psychology is increasingly being used to offer insights in the field (see for example Andrew M. Perlman, A Behavioral Theory of Legal Ethics, 90 Ind. L.J. 1639 (2015)). Take Elaine Doyle, Jane Frecknall-Hughes and Barbara Summers‘ piece An Empirical Analysis of the Ethical Reasoning of Tax Practitioners. This piece uses a tax-specific version of Rest’s original Defining Issues Test (DIT) to compare the moral reasoning of Irish tax practitioners and a control group of non-tax specialists. Rest’s DIT is well established and designed to test the level of moral reasoning applied by test respondents when solving. Test takers read moral dilemmas and provide an indication of which kinds of reason they find most important in deciding the moral dilemma. The reasons cover basic justifications like self-interest, rules and ‘post conventional’ principles. The test uses six levels, and the higher up the scale, the higher the level of moral reasoning that is applied by the subject of the test.  Higher levels of performance on the test have been associated with more ethical decision making. The authors study covers tax practitioners (which includes lawyers).

The results the authors claim for the study are: (i) tax practitioners generally reason at lower levels in tax contexts than in social scenarios (i.e. they can decide ethical problems in a more principled manner, but do not in tax situations); (ii) that the professions do not appear to attract people who generally reason at lower levels (i.e. tax does not, on the evidence here, attract particularly bad apples); and (iii) that practitioners’ moral reasoning appears to be affected by training/socialization in their professional context (in particular tax practitioners in private practice demonstrate lower levels of moral reasoning than practitioners working for the Irish revenue service). They summarize their results as follows:

The fact that tax practitioners do not reason significantly differently from non-specialists in the social context sug­gests that individuals whose reasoning is less principled than the norm (as measured by the non-specialist control group) are not self-selecting into the tax profession. …Once the context changed to tax, however, differences in moral reasoning were evident, with tax practitioners utilizing significantly lower level moral reasoning than non-specialists who remained con­sistent in their reasoning across both contexts. This dif­ference was substantial in size, with the level of principled moral reasoning being 34% higher in non-specialists. (P. 333.) Continue reading "Care to take a peek into the mind of tax lawyers?"

Long Shadows and Clubbable Democracies

Jeremy Waldron, Immigration: A Lockean Approach, NYU School of Law, Public Law Research Paper No. 15-37 (2015), available at SSRN.

Approximately eleven million people currently reside in the United States as undocumented aliens. Most of these are so-called “economic” immigrants, who do not qualify for political asylum.1 Due to armed conflicts in the Middle East, approximately 350,000 migrants illegally entered countries of the European Union in the first eight months of the current year. Many of these will qualify for political asylum, but many will not; for from a legal perspective they, like the vast majority of US “illegals,” have immigrated primarily for economic reasons.2 Not to pillage and plunder, but to seek a better life by taking up opportunities for work in these wealthier and more stable countries. In other words, they come and keep coming mainly in order to bargain freely with legal residents who will pay for their labor.

The nations of Earth claim the right to exclude non-citizens from their territories, and many actively do so. Except in extraordinary circumstances, would-be immigrants have no recognized human right to be admitted or to remain. Illegal immigration, then, can present a complex set of policy questions whose answers involve balancing a range of reasons, both for and against policies such as amnesty, adjustment of legal status, management of quotas, enhanced border enforcement, construction of physical barriers, and deportation. The reasons going into the mix include public attitudes, human hardship, monetary costs of many kinds, impacts on wages, crime rates, demand for public services, and intangibles such as community homogeneity and “quality of life.” Jeremy Waldron rightly rejects the view that the question is essentially one of policy or the application of a settled ethics of national sovereignty. Waldron has rarely shied from the role of public intellectual, and here he seems poised to embrace it with uncommon vigor. Continue reading "Long Shadows and Clubbable Democracies"

Pendulums Swing

Nicholas Bagley, Medicine as a Public Calling, 114 Mich. L. Rev. 57 (2015).

Even as some in Congress continue to vote to repeal the Affordable Care Act, most observers and political participants agree that the health reform law’s central elements are here to stay. Yet broad agreement also exists that, despite the law’s progress in decreasing the number of uninsured Americans, serious problems still plague the U.S. health care system. Escalating costs figure centrally among these problems, and recent news reports have highlighted the plight of insured Americans who face burdensome premiums or out-of-pocket costs. What is the most promising “fix” for addressing the persistent problems Americans face in accessing and affording medical care?

Against this backdrop, Nicholas Bagley’s new article Medicine as a Public Calling suggests approaches in the tradition of public utility regulation as a plausible response. Bagley’s argument is that—as we try to figure out how to move forward in a post-ACA landscape—we would do well to recognize how the public utility model shaped health care regulation in the twentieth century. The article is descriptive, rather than prescriptive. Bagley does not advocate regulation of health care prices, access, or supply, but he wants to make sure readers realize that such regulation would have a long lineage. I found the article’s careful description of this lineage tremendously valuable. Keeping up with the rapid pace of changes in health law, policy, systems, and technology is a constant challenge for health law teachers and scholars. These changes make it all too easy to think that “taking a historical perspective” means looking back ten years or so, which obscures understanding of the legal historical path to today’s vantage point. Bagley’s article corrects that historical shortsightedness. Continue reading "Pendulums Swing"

Designing Architectural Copyright

Kevin Emerson Collins, Economically Defeasible Rights to Facilitate Information Disclosure: The Hidden Wisdom of Pre-AWCPA Copyright (2015), available at SSRN.

In his new piece Economically Defeasible Rights to Facilitate Information Disclosure: The Hidden Wisdom of Pre-AWCPA Copyright, Kevin Collins brings his background as a trained architect to bear on the puzzling history of architectural copyright. In Collins’s view, far from being inadequate, as some have contended, pre-AWCPA copyright was a sort of Goldilocks solution: not so strong as to prevent beneficial borrowing, not too weak to provide incentives, but instead just right to solve a particular disclosure problem unique to the design-minded architecture market. In the process, Collins makes a compelling case for tailoring in copyright, and for the importance of theory to doctrinal design.

Before the Architectural Works Protection Act was passed in 1990, architectural works received an unusually narrow form of copyright protection, even as compared with other highly useful works. Pre-AWCPA copyright gave architects the right to prevent copying of architectural drawings into new drawings. But architects could not prevent (or at least most thought they could not prevent) the making of derivative works from those drawings in the form of constructed buildings, nor could they prevent copying of the constructed buildings into new drawings or other constructed buildings. This form of protection was unusual not only because it was, as Collins memorably puts it, “runtish” by comparison to the protection afforded other works, but because it was essentially a “defeasible” right, lost upon the construction of a building that embodies the architectural work. (P. 6.) Continue reading "Designing Architectural Copyright"

The Turn to Vulnerability

Maneesha Deckha, Vulnerability, Equality, and Animals, 1 Canadian Journal of Women and the Law 27, 47–70 (2015).

There’s a growing body of work that explores the contours of nonhuman animals and law. Just to illustrate, see previous Jotwell posts in Jurisprudence (here and here) and in Legal History. Maneesha Deckha’s article, “Vulnerability, Equality, and Animals”, brings that body of literature squarely into engagement with equality theory.

I read everything Professor Deckha writes: not because I am always on board with where her analysis takes her, but because I’m always left asking questions I hadn’t thought through before. This piece is yet one more illustration of her ability to connect unexpected dots; to press on boundaries that had not been explicitly articulated before; and to draw the reader in. Continue reading "The Turn to Vulnerability"

Making Sense of Plurality Decisions

Ryan C. Williams, Questioning Marks: Plurality Decisions and Precedential Constraint (forthcoming).

In Questioning Marks, Ryan Williams tackles a piece of Supreme Court doctrine that many dismiss with the back of their hand: how to make precedential sense of the Court’s plurality opinions. Oh sure, we all begin with the statement in Marks v. United States that lower courts should ascribe precedential weight to the “holding” of the case, understood as “that position taken by those Members who concurred in the judgments on the narrowest grounds.” But that formulation obscures any number of difficulties. How does a lower court identify the narrowest grounds of the shared decision that produced a judgment that was supported by separate reasons that failed to offer clear guidance in future cases?

Williams first shows that lower courts have taken a range of different approaches to the problem of identifying the narrowest grounds. Some look for an implicit consensus among the five (or more) concurring Justices, others give pride of place to the notion that the Justice casting the fifth vote must have played a decisive role in the outcome and so treat the opinion accompanying that swing vote as controlling. Still others adopt an issue-by-issue approach, looking for the alignment of Justices who expressed agreement with a particular proposition that may be relevant in future litigation. Somewhat controversially, this issue-by-issue approach may also consider the views of dissenting Justices, a group seemingly omitted from the Marks reference to the members concurring in the judgment. Continue reading "Making Sense of Plurality Decisions"

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"