Yearly Archives: 2015
Oct 9, 2015 Ezra RosserLexEnergy Law
Professor Oliver Houck’s recent article, The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone, is easily one of the best articles that I have read in the last ten years and should be required reading regardless of one’s specialty. I should admit that I am not an environmental law professor and the environmental law articles I ordinarily read are those that intersect with one of my primary research areas: Indian law. So I initially downloaded The Reckoning expecting that I would skim it quickly. But it is a remarkable article. Although on its face, the article tells a story of oil and gas development in the fragile wetlands of Louisiana’s coast, it also has lessons about political corruption and short-sightedness that extend far beyond the environmental destruction at the heart of the article.
Professor Houck convincingly argues that the state government and oil and gas interests are seen as essentially the same, so much so that Houck refers to them collectively simply as “the company.” Louisiana actively courted oil and natural gas development to such an extent that the very state entities tasked with protecting the coastal zone participated in the promotion of development above all else, even above reason. As the article shows, it would be inaccurate to say that the state became the puppet of corporate interests or that it rubber-stamped the web of canals that destroyed the wetlands because nearly every Louisiana institution was and is invested in the rush to please big energy. Problematically, the list of those involved in opening up the wetlands, in denying the connection between development and destruction, and in attempting to shift the restoration costs away from oil and gas companies and unto the American taxpayer includes not only the ironically named Louisiana Department of Natural Resources, which time and again saw itself as an industry partner, but also parish governments, state-university academics and centers, politicians at the federal, state, and local levels, and even major environmental groups. As Professor Houck shows, no part of the Louisiana coast has been spared from devastation caused by “the company,” yet “the company” is unwilling to take responsibility and has largely succeeded in avoiding the costs associated with such destruction. Continue reading "A Story Well Told"
Oct 7, 2015 Margareth EtienneCriminal Law
With the recent national attention given to concerns about mass incarceration, lengthy prison sentences and atrocious prison conditions, it appears that we have entered a wave of prison reform—once again. But perhaps we believe it to be different in kind or degree from the sort of reformist movements we have had in the past. We might believe that today’s areas of focus—overcrowding due to three-strikes laws, concerns about the treatment of juvenile offenders, the roles of race, ethnicity, poverty and mental health as factors in determining prison demographics, the prevalence of sexual assault and violence in prions, the defunding of rehabilitation and re-entry programs—are new or unique. In Coxsackie: The Life and Death of Prison Reform, historian Joseph F. Spillane exposes the cyclical nature of prison reform debates along with a close examination of the failure of the American reformist movement of the early to mid-1900s. Relying on primary documents that included legislative discussions, periodical accounts, correspondences between key political actors, and primarily prison records, Spillane carefully reconstructs the events that influenced first the construction and later the of management of New York State’s Coxsackie Correctional Facility. Coxsackie (pronounced “cook-sock-ee” according to Spillane), opened as a then-modern vocational reformatory for adolescents in the 1930’s at the height of the progressive prison reform movement in New York but within decades spiraled into a now-modern maximum security warehouse for inmates rife with violence and brutality.
Like a lot of good history books, Spillane’s account depicts the past while helping to explain the present and is a must-read for anyone who cares deeply about prison reform and wants to avoid (or at least understand) common pitfalls. In his depiction of the pendulum swings characteristics of prison reform movements, Spillane begins with what were the triggering events in the 1920’s and 1930’s. According to Spillane, prisons generally suffer from inattention until a “focusing event” raises public awareness or fear. In the 1920’s and 1930’s, prison riots provided a political tipping point presenting the education reformers with an opportunity to advocate for change. Then-reformers blamed idleness, prison overcrowding and draconian four-strikes mandatory life Baumes Laws (little did they know that three-strikes would later became the norm!) for the riots. Continue reading "A Case Study for Understanding Prison-Reform, Its Advocates and Its Critics"
Oct 6, 2015 Carole SilverLegal Profession
Rachel E. Stern and Su Li,
The Outpost Office: How International Law Firms Approach the China Market,
Law & Social Inquiry (forthcoming, 2015), available at
SSRN.
Size matters—in the legal profession as elsewhere. It is a common element in research on law firms, legal practice and lawyers’ careers, and it often is assumed to be associated with success—in many instances, accurately. The largest U.S. law firms in terms of headcount also are among those that generate the most revenue and profits per partner, for example. Law firms in the category affectionately known as “BigLaw” account for an important segment of the most sought-after positions for new law graduates, in no small part because they offer the highest starting salaries and the promise of more for those who succeed. These same firms represent the most significant businesses in their most important disputes and largest and thorniest transactions, and today also often are involved in notable pro bono activities. Bigger is correlated with success, whether size is measured in headcount, number of offices, revenue, profits or compensation.
The assumption that size matters underlies the thoughtful analysis of Rachel Stern and Su Li about the growth of global law firms in China. Their article, The Outpost Office: How International Law Firms Approach the China Market, explores why growth seems to have stalled in the China offices of international law firms. Stern and Li draw on data gathered in interviews (conducted in 2013-2014) with lawyers practicing in the China offices of 50 international law firms. The firms have home bases in 18 different countries; this variety allows Stern and Li to consider how home country shapes global growth. Continue reading "How big is big enough? Lessons from China about globalization"
Oct 5, 2015 Janet WalkerCourts Law
Often we like scholarship lots because it reflects new or interesting perspectives on familiar subjects. Sometimes, though, the story itself is so thought-provoking that a good telling is all that is needed to make the article worth commending to Courts Law readers.
Such is the case with Hugo Cyr’s article, which chronicles the highly charged engagement between the Supreme Court of Canada and the Canadian Government (the Executive, comprised of members of the ruling political party) over the fundamental requirements for their respective legitimacy. Everyone seems to agree that the incidents recounted were “unfortunate” in that they provoked strong expressions of differences in what has historically been regarded as a relationship to be managed tactfully. Yet the events exposed many intriguing issues about how best to conduct this critical relationship to promote the continuity and flexibility needed to serve well the interests of the public. Continue reading "Controversial Supreme Court Appointments – A Blockbuster in the Foreign Films Category?"
Oct 2, 2015 Daria RoithmayrJurisprudence
Once upon a time there were banks that served the poor. Government structured banks for that purpose—government gave banks cheap money and protection against failure partly in exchange for their providing a place to deposit money, earn interest and get credit, along with economic stability, for everyone. Financial innovation, increased competition and deregulation changed all that: the period of dramatic transformation left the poor and working class without services, as banks came under competitive pressure.
Once upon a time, post offices provided banking functions, giving the ordinary customer a brick-and-mortar office to park their cash. Then competition from higher-interest rate banks changed all that; with shrinking demand, postal banking was dismantled in 1967. Continue reading "How the Other Half Banks"
Sep 30, 2015 Camille Gear RichFamily Law
Who’s afraid of the welfare queen? Apparently everyone. These days, the average American sees the welfare queen as a key threat to social order; the conservative movement’s battle for hearts and minds decisively has been won. Numerous scholars, from Michele Gilman to Kaaryn Gustafson, have attempted to combat prevailing views of the welfare queen, providing us with an expansive, rich understanding of the ways in which the construct continues to shape contemporary poverty debates about poor single mothers. Ann Cammett, in her recent article recent Deadbeat Dads and Welfare Queens: How Metaphor Shapes Poverty Law, takes the conversation in a new, exciting direction; she demonstrates how the discursive constructs used to pathologize poor mothers have morphed to implicate us all.
Family law scholars know that discursive inquiries are an invaluable resource, particularly when gender constructs play a central role in the way legal claims are articulated in a given domain. However, thus far, family law scholars have focused on how ideal tropes and stories of perfect, heroic motherhood are used by the State to police women and families. Recent tropes of ideal motherhood include “the Soccer Mom” and “the Tiger Mom.” These motherhood constructs give form to middle class anxieties about the competing and conflicting responsibilities imposed on women—propositions that make ideal motherhood elusive.
Instead of focusing on the ideal mother, Cammett turns to a trope of stigmatized motherhood: the welfare queen. Her work reveals the construct’s role in shaping the identities of poor women, as well as its role in shaping the self-perception of a far larger group of citizens, ones not normally associated with this construct. In this endeavor, Cammett expertly weaves together history and psychology to reveal a disturbing truth: The welfare queen construct exerts disciplinary power over us all, regardless of gender and class position. Continue reading "Who’s Afraid of the Welfare Queen? Stigmatized Motherhood, Tropes and the Policing of the American Poor"
Sep 29, 2015 Margot KaminskiTechnology Law
When the law faces a new technology, a basic question is who governs it and with what rules? Technological development disrupts regulatory schemes. Take, for example, the challenges the Federal Aviation Administration (FAA) now faces with drones. The FAA usually regulates aircraft safety. Drones force the FAA to consider—and in some cases reject as outside the agency’s mandate—issues of privacy, spectrum policy, data security, autonomous decision-making, and more. The pace and complexity of recent technological change has led some to call for the creation of new agencies, including a Federal Robotics Commission. But given the significant hurdles involved in agency creation, it is valuable in the short run to assess what tools we already have.
In Unfair and Deceptive Robots, Woodrow Hartzog takes up the question of who will govern consumer robots. Hartzog proposes that the Federal Trade Commission (FTC) is best equipped to govern most issues that consumer robots will soon raise. He reasons that the FTC is well prepared both as a matter of subject-matter expertise and as a matter of institutional practice. Continue reading "Who Regulates the Robots?"
Sep 28, 2015 Aya GruberCriminal Law
I had just pulled up Janet Halley‘s compact and insightful (and incite-ful) commentary on sexual assault for re-reading in preparation for this Jot, when a student came in to chat. This student was involved in a soon-to-be launched pilot program, overseen by the University’s Title IX office and funded by grant money, to provide peer counseling to those identifying as sexual assault victim/survivors. The student-counselor explained that the program aimed to “point students in the right direction” and give them a “confidential sounding board.” The student further stated that the program would be “good for professors” because the peer counselors would deal with contextualizing class topics counselees might find uncomfortable or traumatizing. “You all shouldn’t have to do that,” she opined, “you should be able to just teach.” So I asked, “What are you going to tell students who have concerns about class material being traumatizing?” “I’m not sure yet,” she said, “we are going to receive trauma training from an expert.” “An expert on what?” I asked. “I guess trauma,” she replied. The student-counselor proceeded to reassure me that if a student came to her complaining about a lack of sufficient trigger warnings, she would tell her to “get over it.”
This is the new world we teachers and scholars of criminal law live in. And although the student I spoke with was quite level-headed and well-intentioned, she is soon to be part of this powerful culture. In this new world, the “one-in-four” claim is not just a rallying cry of feminist advocates meant to counter widespread sexist beliefs that rapes never occur and women are liars. Today, the statistic is the “truth” that underlies extreme, one-sided, punitive disciplinary policies and a marked shift in free speech/academic freedom norms. We are told to assume that a quarter of the women (not to mention a tenth of the men) in the class have been raped and traumatized and accordingly to teach rape in a psychologically appropriate manner (at the risk of severely damaging students and our own reputations/careers if we misapprehend the propriety of our methodology). Classes are a source of danger, and student activists call for speech control in the name of safety. Thus, it is not surprising that my interlocutor’s paradigmatic example of a student complaint did not involve actual psychological trauma but rather a sense of injustice when the professor fails to provide appropriate trigger warnings. We find ourselves in the midst of what I am calling “anti-rape culture,” that is, a set of beliefs about what constitutes rape (many forms of sex), its psychological effects (ruinous), how frequently rapes occur (ubiquitous), and appropriate institutional responses (punitive), combined with a norm that “good” people (feminists, women, liberals, non-sexists, etc.) must adhere to such beliefs. Continue reading "Anti-Rape Culture"
Sep 25, 2015 Lily KahngTax Law
Calvin H. Johnson,
Organizational Capital: The Most Important Unsettling Issue in Tax, 148
Tax Notes 667 (2015), available at
SSRN.
In his article, Organizational Capital: The Most Important Unsettling Issue in Tax, Professor Calvin Johnson argues that the undertaxation of intangibles is “the most important, most damaging issue in tax policy” and proposes a radical solution to remedy the problem: a new tax based on the trading value of public companies.
As Johnson explains, intangibles are undertaxed because businesses deduct—rather than capitalize—most expenditures related to self-created intangibles. At the same time, businesses report income from self-created intangibles over a period of years. As Cary Brown demonstrated, allowing an immediate deduction for expenditures that produce future income is the equivalent of exempting the income from tax. Thus, much income from self-created intangibles is in effect tax free. Continue reading "Can the Smart Market Solve the Problem of Undertaxed Intangibles?"
Sep 23, 2015 Pat GudridgeConstitutional Law
Gillian Metzger is convinced of “[t]he central importance of supervision.” “Supervision and other systemic features of governmental administration with which it overlaps … are fundamental in shaping how an agency operates and its success in meeting its … responsibilities.” (P. 1840.) Nonetheless “constitutional law stands largely aloft from the reality of administrative governance, with the Supreme Court refusing to subject systemic features of government operations to constitutional scrutiny.” (P. 1841.) This dissonance preoccupies Metzger’s article.
Available lines of thought, we know, lie right at hand. The Article II Take Care Clause jumps out as one beginning. Anti-delegation worries, originating in structural preoccupations, suggest another accessible constitutional skein. Metzger’s observations drawing out these threads make for easy reading. (Pp. 1874-1904.) The problem, she thinks, lies largely with courts and their adjudicative inhibitions. In both administrative and constitutional law, ideas of review, “cases” and “controversies,” parties to disputes, resolution and finality, and so on—all work against thinking through matters of system, supervision, “rightful hierarchy,” and so on. Judges are inclined to start with—are prone to hesitating absent—investigations of individual instances. Although she maps possible occasions for taking up questions of supervision directly, Professor Metzger acknowledges that there’s not much chance of provoking large-scale change in judicial orientations (and maybe shouldn’t be). Her several discussions, here too, are searching and extensive, thoughtful and clear. (P. 1859-70, 1904-09, 1914-18.) Continue reading "Someone Who’ll Watch Over Me"
