Yearly Archives: 2015
Sep 22, 2015 Steve VladeckCourts Law
Richard Fallon, John Manning, Daniel Meltzer, and David Shapiro, The Federal Courts and the Federal System (7th ed., 2015).
There are casebooks, and then there’s Hart and Wechsler’s The Federal Courts and the Federal System, the brand-new seventh edition of which arrived this summer. It may seem odd to focus so much attention on the latest edition of a casebook that has been around since before the Brooklyn Dodgers won their only World Series. But this newest iteration by Richard Fallon, John Manning, Daniel Meltzer, and David Shapiro is, for reasons I elaborate upon below, worthy of its own adoration—and should hopefully entice scholars who have long sought other teaching materials to return to the gold standard.
I
As Akhil Amar has explained, the first edition of “Hart and Wechsler,” published in 1953, “succeeded in defining the pedagogic canon of what has come to be one of the most important fields of public law in late twentieth-century America,” i.e., Federal Courts. And whereas most other legal disciplines preceded the casebooks that purported to define them, Hart and Wechsler all but created not just a curriculum for Federal Courts classes, but also a far deeper sense of why such a course was worth teaching—and taking. Continue reading "The Keepers of the Federal Courts Canon"
Sep 21, 2015 Cristie FordCorporate Law
Chris Brummer,
Disruptive Innovation and Securities Regulation, 84
Fordham L. Rev. — (forthcoming, 2015), available at
SSRN.
In the early 2000s, I spent some time as a fly on the wall of the floor of the New York Stock Exchange. I talked to specialists—those whose job it was to personally manage trading and make a market for particular high volume stocks—including one who had just earned a coveted specialist’s “seat” (price: $3 million). Once upon a time, a seat was practically a license to make money. As market-makers, specialists bought low and sold high on their own accounts. The NYSE specialists I spoke to talked about decimalization, new at the time—the fact that securities were now quoted in pennies instead of in eighths or sixteenths of a dollar. They agreed that it had cut into their profitability. They were already using an electronic system to pair off small customer orders, and they agreed that it actually handled more order volume than they did. None of them seemed to have given much thought to electronic trading, alternative trading platforms, or the derivatives market. Certainly none of them seemed to think these were existential issues that would undermine their 130-year-old business model.
Securities markets are utterly transformed today. Specialists, as they were then, are gone. Electronic trading networks reign, as does algorithmic trading. The NYSE handles less than 20% of US stock trades (it was 80% just a decade ago). Chris Brummer’s new article, Disruptive Innovation and Securities Regulation, is a gorgeous account of how this happened, how law intersected with innovation, and what the implications might be. Continue reading "Clayton Christensen comes to Wall Street"
Sep 18, 2015 Jacob E. GersenAdministrative Law
Sharon Jacobs,
The Administrative State’s Passive Virtues, 66 Admin. L. Rev. 565 (2014), available at
SSRN.
The federal bureaucracy has long been accused of torpor. Administrative agencies, we are oft told, take years to do much of anything. Whether this supposed-sluggishness is because of intentional institutional design, judicial review, administrative preference, or the inherent conservativeness of bureaucracy is unclear. In recent years, moreover, the core descriptive claim that agencies are too slow and do too little has been significantly undermined. Nevertheless, positive accounts of administrative delay are rare and under-theorized. Sharon Jacobs’s The Administrative State’s Passive Virtues is a long overdue updating and application of Bickel’s notion of the passive virtues in the context of courts, as applied and developed for the Administrative State.
To oversimplify a bit, Bickel argued that given the counter-majoritarian nature of courts in the United States, judicial actors can, do, and should utilize justiciability doctrines to avoid or defer deciding certain difficult or politically controversial cases. This practice of avoiding certain decisions was said to be desirable because it avoided potential attacks from the other branches or citizens and allowed the other branches with a better democratic pedigree to decide difficult political issues. Though well-known and rhetorically powerful, Bickel’s passive virtues suffered a mix of acute and chronic intellectual beatings. But Bickel’s ghost remains a powerful trope in modern constitutional law and Jacobs’s point is not that Bickel was right about courts. Rather, it is that agencies have similar structural characteristics to courts in the ways that motivate Bickel and that we lack a theory or really even a concept of administrative passive virtues. Until now. Continue reading "The Administrative Passive Voice"
Sep 16, 2015 Michael C. HarperWork Law
Julia Tomassetti,
The Contracting/Producing Ambiguity and the Collapse of the Means/Ends Distinction in Employment, 66
S.C. L. Rev. 315 (2014), available at
SSRN.
As the Reporter primarily responsible for the chapter defining the employment relationship in the recently completed Restatement of Employment Law, I thought I had fully considered and taken account of the origins and various instances of judicial confusion in distinguishing employees from independent contractors. Thus, I was especially surprised to have my understanding of the confusion substantially enhanced by Julia Tomassetti’s recent conceptually deep article. Tomassetti argues that an understanding of the unusual and contradictory nature of employment contracts and their development is necessary to explain judicial confusion when defining employment, and that it is not sufficient simply to highlight the challenges posed for courts by the nontraditional work relationships in the modern economy and the many multifactor indeterminate tests that have been developed to supplement the traditional but inadequate “right to control the means and manner of work” test.
Tomassetti contends that the principal source of judicial confusion derives from the law’s presumption that the traditional master-servant relationship is incorporated into employment-at-will relationships. These relationships entail the employer’s ongoing discretionary control over the employee’s means of production, while concomitantly providing the non-indentured “free labor” servant with the leverage of a right of exit at any time. This atypical type of indefinite contract has seemed to courts different than service contracts containing work specifications even when those specifications seem to cover not only what is produced (the ends) but also how production is to be accomplished (the means). Tomassetti provides many examples of courts rejecting employment status for service relationships defined by what she terms “upfront contractual specifications” (UCS) that would entail employment status if the specifications were imposed by employers through the ongoing exercise of their contractually presumed discretionary control. The courts, viewing contracts as the products of bilateral negotiations, assert that the specifications express a bargain between businesses, regardless of how bad a bargain the terms express for the service provider. Continue reading "Explaining the Blurred Line Between Employment and Independent Contracting"
Sep 15, 2015 Kent D. SchenkelTrusts & Estates
Law professors strive to stimulate student thinking not only about what the law is but also about law’s potential—what the law might or should be. In a conventional doctrinal law school class such considerations are likely to supplement, not supplant, teaching the law as it exists and is applied. But the conventional approach turns out to be surprisingly controversial, at least in the wills and trusts arena. Some wills and trusts professors choose to focus exclusively on model rules, many of which are not widely adopted. Conceived this way, the wills and trusts course is, “to a certain degree, detached from reality.” So writes Professor Adam Hirsch, in his concise and pithy contribution to the Saint Louis Law Journal’s symposium on teaching wills and trusts law, Teaching Wills and Trusts: The Jurisdictional Problem.
Wills and trusts laws, like those in many other areas, are primarily state laws that often vary across jurisdictional lines; a fact that inconveniences lawyers, confuses law students and frustrates law professors. How to deal with this predicament? We cannot, concedes Hirsch, teach the law of all fifty states. And teaching the law of only one jurisdiction, even in the “regional” law school, will not do either. Although students may be well prepared to take the local bar examination, they will suffer in seeking employment outside the jurisdiction, and will take an overly narrow view. And in the “top, nationally-recognized law schools,” to teach one jurisdiction’s law would be, writes Hirsch, “outlandish.” Students attending these (and many, if not most, other law schools) scatter widely upon graduation, making such an approach “pointless and arbitrary.” Continue reading "What Law Should We Teach?"
Sep 14, 2015 Gregory KeatingTorts
Avi Dorfman,
Negligence and Accommodation: On Taking Other People as They Really Are, (2014), available at
SSRN.
Avi Dorfman, a private law scholar at Tel Aviv University, has posted a deep and provocative paper Negligence and Accommodation: On Taking Other People as They Really Are. Negligence and Accommodation is one of those rare papers that manage to say something new about familiar terrain. Here, the terrain is negligence law’s treatment of primary (other-regarding) negligence and contributory (self-regarding) negligence. Dorfman makes the case that the matter is of prime importance for our understanding of the morality of negligence law. The essential idea is simple enough. We are accustomed to thinking of the standard of reasonable care as objective. Indeed negligence law is famously objective. It holds people to the standard of conduct that an idealized normal person would achieve. Dorfman argues, however, that negligence law takes people as they are—subjectivizes by taking their individual limitations into account—more than we think, but it does so asymmetrically. Negligence law takes the traits of victims into account when they fail to exercise sufficient care for their own protection, but it is as firmly objective as the received wisdom takes it to be when it addresses the negligence of those who endanger others.
Challenging the Received Wisdom
Quite rightly, Negligence and Accommodation, takes negligence law’s treatment of physical disability as the canonical instance of the law addressing people whose capacities and competencies are less than those of the standardized “reasonable person.” The paper then marshals an impressive amount of evidence in support of two theses. The first is that the law makes allowance for physical disability and adopts a “watered-down standard of care [for] cases of contributory or comparative negligence.” (P. 12, fn. omitted.) The second is that not even “one case concerning the conduct of the tort-feasor has made allowance for her physical disability. Thus, tort-feasors are required to exercise the care a non-disabled tort-feasor would have been expected to exercise.” (P. 13, fns. omitted.) Neither of these theses is either wholly new, or utterly surprising. As Dorfman notes, Fleming James stressed that the subjectivization of the standard of care found its most intense manifestation in the case of physical disabilities. Still, no one has developed as thoroughly or as persuasively the thesis that asymmetric treatment of self-regarding and other-regarding obligations of care is a deeply entrenched feature of negligence law. In zeroing in on the asymmetric treatment of primary and contributory negligence, moreover, Dorfman is highlighting a theoretically important feature of negligence law. The two dominant tort theories of our time—economic analysis and corrective justice—both impose frameworks which suggest that primary and contributory negligence are on a par and both tend to push the actual treatment of contributory negligence by negligence law to the peripheries of their theories. They do so because the law’s asymmetric approach embarrasses both views. Continue reading "Is Negligence Law Less Objective Than We Think?"
Sep 11, 2015 Neil H. BuchananTax Law
The modern university is a precious institution, providing a wide variety of benefits to society. But it is constantly in danger of being turned into something far less valuable, ironically by the very people who claim that “creating value”—but only in a very limited sense—should be the narrow goal of higher education. In addition, through political channels as well as financial incentives, universities are pressured to discontinue certain lines of research, to violate academic freedom, and in a variety of other ways to undermine independent academic inquiry. In the face of these ubiquitous and increasing pressures, it is essential that universities continue to defend their traditional role in society.
One quintessentially American collegiate tradition, however, has recently gained disproportionate influence in our universities. Big-time college sports programs have become dangerously influential on far too many campuses. It is important to remember that universities do not need to derive funds from operating lucrative sports programs. Many great American universities do not do so (for example, NYU, University of Chicago, and Carnegie Mellon), while others do so at lower levels of competition (the Ivy League, elite liberal arts colleges, and so on). Nevertheless, far too many top-flight institutions have increasingly committed themselves to being competitive in the sports that generate large amounts of revenue from television and merchandising: football and men’s basketball. That most of those institutions actually lose money on those “revenue sports” has not discouraged more and more universities from trying to win a piece of that revenue pie. The illusory promise of big money from sports has created many problems for American universities, but many proposals to address those problems are deeply misguided. In particular, as I have written (e.g., here and here), recent calls to allow cash payments to players would move us in exactly the wrong direction.
In Ending the Sweetheart Deal between Big-Time College Sports and the Tax System, Professor Richard Schmalbeck takes a different tack, explaining how the current federal tax system exacerbates the problem and increases the incentives for universities to become ever more ensnared in the big-time sports trap. He describes two tax provisions—universities not having to pay the Unrelated Business Income Tax” (UBIT) on their sports-related profits, and a provision allowing a partial deduction for barely disguised added charges for admission to games—that are “egregiously bad,” and he concludes that “these defects amount to an implicit tax subsidy of college sports that is neither healthy nor in any way justified.” Because of space limitations, I will focus here only on the first provision. Suffice it to say that Professor Schmalbeck’s arguments regarding the second provision are as strong as those for the first, which is to say very strong indeed. Continue reading "Using the Tax Code to Help Universities Put Big-Time College Sports in (Some) Perspective"
Sep 9, 2015 Angela BanksLexImmigration
A perennial question for scholars interested in social justice is how politically and socially marginalized groups can become full members of society. Jennifer Lee provides an important contribution to the literature addressing this issue. Building on insights from the social movement literature on strategic framing, Lee contends that strategic mainstreaming offers an opportunity for marginalized groups to obtain immediate benefits. Lee focuses on unauthorized immigrant workers and views strategic mainstreaming as a tool to successfully litigate workplace violations, petition for immigration status, and obtain desired public policy reforms.
Much has been written within the social science social movement literature about the role of frames and framing strategy in bringing about legal reform. Frames serve as tools for organizing and understanding information. Because of the relationship between cultural norms and law, framing offers a useful strategy for legal reform advocates. As Lee notes, “law is neither objective nor fixed but rather dependent on the relationship law shares with the dominant cultural and social patterns of society.” (P. 1068.) Consequently social movements seeking legal reform “are more powerful when the messages of the movement align with the values of mainstream culture.” (P. 1069.) Lee focuses on one type of framing strategy—mainstreaming. This is the process by which “interpretive frames correlated to dominant cultural values” are used “to create connections to mainstream society.” (P. 1064.) Through mainstreaming advocates seek to demonstrate common ground between those seeking reform and dominant cultural values. Continue reading "Cultural Narratives and Legal Rights"
Sep 8, 2015 Andrew BoonLegal Profession
In Final Judgment Paterson makes a triumphant return to the subject of his PhD undertaken forty years ago: the operation of the highest court in England and Wales. This update covers the transition required by the Constitutional Reform Act 2005, giving effect to a rhetorical separation of powers. The relevant part of this legislation as far as this account is concerned is the abolition of the jurisdiction of the House of Lords and its reconstitution, outside of Parliament, as the Supreme Court. (It is worth reading this in conjunction with Richard Moorhead’s review of Hanretty’s Political Preferment in English Judicial Appointments.)
The substance of the book draws on a number of sources, including over 100 interviews, many with members of both the House of Lords and the Supreme Court. Primarily it illuminates process issues, from the way that judges interact with the advocates appearing before them to how they come to their decisions. Indeed, the structure of the book is based on dialogues the court has with others and among its own members. Paterson details how the exchanges with counsel in the court progress and, importantly, the difference good advocacy can make to the outcome of a case. We get insights into how the justices own discussions shape the ultimate judgments and what importance is given to dissents in terms of individualism versus collegiality. To bolster this Paterson provides some statistics on justices’ voting patterns over the last 15 years. He also touches on politically sensitive dialogues the Court has with other courts as part of the UK belonging to the European Union. In this respect the UK Supreme Court mediates between the pan-European courts and the polity of the UK. Recent discussions on human rights and membership of the EU highlight the difficulties. The depth and quality of this material is sufficient to make this work important without more. However, the authenticity of the accounts, and Paterson’s honest handling of the material, by which I mean that he reports what he found, warts and all, adds to its value. Continue reading "Lifting the Lid on the Law Lords: The Workings of England’s Highest Court"
Sep 7, 2015 Brian TamanahaJurisprudence
Law is filled with legal fictions, roughly defined as statements known to be false but treated as true by legal actors to achieve a purpose. No one is deceived by legal fictions, and the consequences of the fiction are generally recognized. The early common law was filled with fictions, often utilized to satisfy pleading or jurisdictional requirements. Well-known examples are fictional statements about lease and ejectment necessary for the action of ejectment, and statements about goods lost and found necessary for trover. Perhaps the most infamous example is Mostyn v. Fabrigas (1773), when Lord Mansfield concluded that Minorca was in London for the purposes of obtaining jurisdiction in the case. By the nineteenth century, after Bentham’s caustic attacks on legal fictions, their prevalence in law had come to be an embarrassment. An American jurist critically remarked in 1841, “All manner of pleadings and proceedings, both in law and equity, are stuffed with falsehoods and lies.” In Ancient Law (1861), Sir Henry Maine acknowledged fictions serve the useful purpose of facilitating change in the law, but he considered them a discredit to modern legal systems. Yet, a century and a half later, fictions still continue to exist in law.
Maksymilian Del Mar and William Twining have produced a superb collection of 19 essays on legal fictions. The book begins with a splash, publishing a first-time English translation of Hans Kelsen’s 1919 response to Vaihinger’s influential book on fictions. In consistently high quality essays, subsequent chapters take up a broad range of issues. About half of the chapters involve theoretical explorations that focus on what fictions are, how they should be defined, what purposes or functions they serve, why they exist, what their implications are for law and language, how influential theorists have considered them (particularly Fuller, Bentham, and Vaihinger), and various other issues. Another set of chapters are oriented toward specific contexts of legal fictions, including the early common law, ejectment actions, Roman law, exclusionary rules, copyright law, tort law, Rabbinic law, securities law, and criminal law. Continue reading "Why are Fictions so Common in Law?"
As Akhil Amar has explained, the first edition of “Hart and Wechsler,” published in 1953, “succeeded in defining the pedagogic canon of what has come to be one of the most important fields of public law in late twentieth-century America,” i.e., Federal Courts. And whereas most other legal disciplines preceded the casebooks that purported to define them, Hart and Wechsler all but created not just a curriculum for Federal Courts classes, but also a far deeper sense of why such a course was worth teaching—and taking. Continue reading "The Keepers of the Federal Courts Canon"
