Yearly Archives: 2015
Aug 5, 2015 Jodi ShortAdministrative Law
The recent paper that has most provoked my thinking about administrative law is not a paper about administrative law at all, it is a paper about corporate governance. The Corporate Governance Obsession, by Mariana Pargendler is an account and a critique of the turn to corporate governance as a means of addressing social and economic issues that were once predominantly the concern of government regulation. By “corporate governance” Pargendler means the internal decision-making processes of corporations—in particular, the balance of power among shareholders, boards of directors, and managers. The article makes the case that internal corporate governance structures increasingly provide both the explanation for and a one-size-fits-all solution to pressing issues in policy arenas as diverse as systemic financial risk, income inequality, gender discrimination, labor rights, and environmental protection.
Why should administrative lawyers care? Because, she argues, corporate governance approaches to these issues are cannibalizing regulatory approaches that externally impose rules to influence the substance and outcomes of corporate conduct. Policy debate on the central social and economic issues of the day is no longer (or at least no longer exclusively) about how regulators should design and implement rules to shape the substance of corporate conduct in the public interest, but rather about how corporations should organize their own internal decision-making processes to address issues of public concern. This means that while we administrative lawyers occupy ourselves with our own obsessions—for instance the finer points of deference doctrine and regulatory review—the corporate governance obsession is chipping away at the substantive regulatory policies that made these issues relevant in the first place. Continue reading "Administrative Law and the Corporate Governance Obsession"
Aug 4, 2015 Charles A. SullivanWork Law
Michelle Travis,
Disqualifying Universality Under the Americans with Disabilities Amendments Act, __ Mich. St. L. Rev. (forthcoming, 2015), available at
SSRN.
I have long admired Professor Michelle Travis’s work, but I was impressed all over again by her recent SSRN article, Disqualifying Universality Under the Americans with Disabilities Amendments Act, to be published in the Michigan State Law Review. There’s a lot to like in her piece, and I can’t begin to capture the entire article, but I do see a theme—“hidden in plain sight”—which I’ll try to sketch out here.
Professor Travis’s overarching argument is that the qualification question has become the emerging gatekeeper for ADA claims, threatening to replace the “disability” barrier that the courts erected and that Congress demolished with passage of the ADAAA. In a nutshell, because courts are putting the burden of persuasion on the employee to establish that she is a “qualified individual,” and that qualification requires an ability to perform the “essential functions” of the job, what is “essential” is often outcome determinative for ADA plaintiffs. Continue reading "“Otherwise Unqualified” Individual with a Disability"
Aug 3, 2015 Phyllis C. TaiteTrusts & Estates
Those who practice in estate planning and probate law know all too well the problems associated with outdated plans. Specifically, we are frequently left to deal with disappointed family members who were expecting to receive certain property, only to find that, intentionally or unintentionally, the decedent did not include them. Statutes such as the elective share give surviving spouses protections against intentional omissions. Surviving spouses also benefit from rules of construction, such as pretermitted spousal share, and statutory protections, such as divorce revocation laws, that provide protection from unintentional omission based on stale plans. However, despite state efforts to protect them, surviving spouses remain vulnerable to stale beneficiary designations in life insurance policies and pension plans subject to federal regulation because of federal preemption.
Professor Langbein artfully challenges the long-standing principle of federal preemption of beneficiary designation in a pension plan or life insurance policy subject to federal regulation under the Employee Retirement Income Security Act (“ERISA”) or Federal Employees’ Group Life Insurance Act (“FEGLIA”). Specifically, he challenges the reasoning and policy merits of federal preemption as applied to state divorce revocation statutes by providing a critical analysis of Hillman v. Maretta, 133 S. Ct. 1943 (2013) and Egelhoff v. Egelhoff, 532 U.S. 141 (2001). Continue reading "Is Federal Preemption in Beneficiary Designation Cases Part of the Problem or Solution?"
Jul 31, 2015 Karen TaniLegal History
“Black lives matter.” When spoken in law schools, these words have had a particular subtext. They expressed outrage at the lives taken in the name of the law, and despair at the distance between our legal ideals and the everyday legal encounters of people like Michael Brown, Eric Garner, and Freddie Gray. In the words of a statement signed by many of my UC Berkeley colleagues, law school communities “struggle to reconcile the constitutional values [taught] in the classroom with the reality that race determines how communities of color experience our legal system.”
Helping our students make sense of this dissonance requires that we bring history into our teaching, and further, that we go beyond stock narratives about the evils of Jim Crow and the victories of the modern civil rights movement. High on my list of teaching aides, going forward, will be Laura F. Edwards’ A Legal History of the Civil War and Reconstruction. It offers both a concise overview of an important legal-historical moment and a bold argument. Reconstruction did more than “abolish slavery and bring Confederate states back into the Union,” Edwards explains; it “unsettled the nation’s entire legal order.” (P. 13.) The resulting legal changes encouraged all Americans—not just freed slaves—to see the world around them in terms of individual rights and to champion the value of equality. This is the very same vision that many entering law students carry with them today. Continue reading "Untangling the Relationship between Rights, Federal Power, and Inequality: The Legal Legacy of Reconstruction"
Jul 29, 2015 Martha ChamallasTorts
Nicky Priaulx,
Injuries That Matter: Manufacturing Damage in Negligence, available at
BePress.
Of the five basic elements of the negligence cause of action (duty, breach, cause-in-fact, proximate cause, damage), the concept of “damage” (sometimes referred to as “injury” or “harm”) has probably received the least attention from torts scholars and certainly commands less time in the classroom. Indeed, the comparative lack of discussion likely exacerbates the common tendency to confuse the concept of actionable damage with the related topic of recoverable damages, i.e., those specific items of loss (such as medical expenses or sums paid for pain and suffering) that are a consequence of an actionable injury. In the U.S., controversial claims for negligent infliction of emotional distress and for reproductive injuries, especially wrongful conception and wrongful birth claims, have triggered debates under the headings of duty, proximate cause, or recoverable damages. Recently, however, Gregory Keating has argued that the concept of harm “can do more work than it is presently being made to do,” inviting more theorizing about what lies beneath the largely intuitive concept of harm or damage.
This ambitious article by British tort theorist Nicky Priaulx aims to fill the void by theorizing about the normative dimensions of the concept of damage. Although she doesn’t use the f-word (feminism) until the end of the piece when she discusses just whose injuries tend to be addressed by tort law, her approach is clearly informed by feminist scholarship, as is evident by her starting point that the concept of damage is “imbued with ideals of social justice and equality [and] directed towards treating like cases alike.” (P. 2.) But Priaulx’s legal feminism is of a newer stripe: it is as much about harm to men as it is about harm to women and is interwoven into a universal theory about how to shape tort law to fit the social experience of injury. Continue reading "Theorizing Damage Through Reproductive Torts"
Jul 28, 2015 Diane RingTax Law
Gillian Brock & Hamish Russell,
Abusive Tax Avoidance and Institutional Corruption: The Responsibilities of Tax Professionals, 56
Edmond J. Safra Working Paper, available at
SSRN.
As I began reading Gillian Brock and Hamish Russell’s new article entitled Abusive Tax Avoidance and Institutional Corruption: The Responsibilities of Tax Professionals, a colleague shared the following cartoon with me:
Arbitrage by xkcd.com. Reprinted under a Creative Commons License.
Not surprisingly, I immediately interpreted the cartoon in light of Brock and Russell’s article: the functioning of the tax system depends, in part on our acknowledgement that certain behavior is important to its successful operation, even though that behavior may not have been formalized explicitly into the law. Of course there are differences between absconding with the “free” restaurant chips and facilitating abusive tax avoidance, but the essence of the critique seemed to be the same. Systems and relationships that depend entirely upon clearly articulated rules of engagement without any overlay of moral responsibility face serious challenges. Can we articulate an appropriate moral standard by positing, as Brock and Russell suggest, a world in which our conduct and its implications are widely known? One in which, for example, all diners and restaurants see the abuse of the free chips system.
Unfortunately, while it may be relatively easy to identify and agree upon the moral framework for dining out, it has been more difficult to establish a shared vision of the moral responsibility for curbing abusive tax avoidance. But Brock and Russell seek to ignite this conversation through their fresh perspective. Continue reading "Who Should be Invited to the Tax Dinner?: Another Perspective on the Role of Tax Professionals"
Jul 27, 2015 Steve GoldLexEnvironmental Law
In a four-decade scholarly career, my former colleague Howard Latin has never shied away from speaking truth to power. His writings have taken on all three branches of government, wealthy private interests like the auto industry, and entrenched academic orthodoxies (notably economic theories of environmental and tort law). More recently, he published an important book arguing that even the most ambitious conventional proposals to respond to anthropogenic climate disruption will not do enough, quickly enough, to mitigate the long-term harm that will result from high concentrations of greenhouse gases in earth’s atmosphere.
In Climate Change Regulation and EPA Disincentives, Latin casts a disappointed eye on the Environmental Protection Agency’s efforts to address greenhouse gas emissions using its authority under the Clean Air Act in the aftermath of Massachusetts v. EPA. Given the ineffable magnitude of the danger, the Supreme Court’s acquiescence, and a comprehending President, Latin asks: Why so timid, EPA? Drawing on many themes from his earlier work, he answers by speaking truth about power: the fossil-fuel-burning generation of electric power, the pressures that exert psychological and bureaucratic power within agencies, and the limited exercise of regulatory power seemingly conferred by statute. Continue reading "Speaking Truth About Power"
Jul 24, 2015 Sida LiuLegal Profession
After three decades of research on gender inequality in the legal profession, it is getting harder for any researcher to say something new. We know as facts that, in many countries across the world, female lawyers earn less than their male colleagues, have fewer chances of promotion, face various forms of gender penalty and sexual harassment in the workplace, and tend to leave the profession earlier and more frequently (see Kay and Gorman 2008 for a good review). However, very few studies have examined the macro-level factors that structure the patterns of gender inequality in the legal profession, such as the differentiation of the public and private sectors, the mobility of lawyers across geographic areas, or the supply and demand in the legal labor markets. This is precisely the approach that Dinovitzer and Hagan take in their recent study on hierarchical structure and gender dissimilarity in American legal labor markets.
The authors use data from the first two waves of the After the JD study, a longitudinal survey of a cohort of lawyers who entered the American legal profession in 2000 conducted by researchers at the American Bar Foundation. The survey included four major markets for legal services (New York, Los Angeles, Chicago, and Washington, DC), five additional large markets (Boston, Atlanta, Houston, Minneapolis, and San Francisco), as well as nine smaller markets. The concentration of high-status corporate legal work varies significantly across the three types of legal labor markets. Dinovitzer and Hagan use the concept of “hierarchical market structure” (HMS) to measure this macrostructural characteristic of the legal profession. Locales with a higher concentration of corporate legal work (e.g., New York) are higher on the HMS index, consisting of four items: elite law graduates, highly leveraged law firms (i.e., firms with high partner/associate ratios), lucrative billings, and corporate clients.
How does the HMS matter for gender inequality? As the authors demonstrate in their analysis, the leveraged nature of legal labor markets benefits women in notable and interesting ways. Continue reading "Do Hierarchy and Concentration Benefit Women Lawyers?"
Jul 22, 2015 Elizabeth Weeks LeonardHealth Law
Jessica A. Clarke,
Against Immutability, 125
Yale L. J. (forthcoming, 2015), available at
SSRN.
Jessica Clarke’s insightful forthcoming Yale Law Journal article, Against Immutability will be of particular interest to those of us writing and thinking about disability, obesity, equal protection, and discrimination. I found it especially helpful for ongoing work on health status discrimination—or, healthism—that Jessica Roberts and I are conducting. Professor Clarke’s thoughts are especially timely in light of the Supreme Court’s landmark decision in Obergefell v. Hodges. Although Justice Kennedy did not rely on immutability explicitly in recognizing the constitutional right to same-sex marriage, that reasoning implicitly underlies the Court’s reasoning.
Historically, discrimination law has drawn distinctions between “immutable” and “mutable” traits, recognizing the constitutional guarantee of equal protection for the “immutable” (e.g., race, gender, ethnicity, national origin) but not the “mutable”. The rationale is that individuals should not be disadvantaged on the basis of traits that they are powerless to change, or—put another way—traits that are not the individual’s choice or fault (the Court has referred to these as “accidents of birth,” see Frontiero v. Richardson, 411 U.S. 677, 686 (1973)). On the other hand, if the trait or characteristic is something within individuals’ control, it seems fair to treat them differently on that basis. In that way, the law can even serve to appropriately incentivize individuals to alter their “bad” conduct or choices and thereby gain the privileges enjoyed by others making the “right” choices. Continue reading "On Health Status, Choice, and Immutability"
Jul 21, 2015 Barbara LevenbookJurisprudence
In “hard” appellate cases, legal disputants sometimes offer moral considerations. Legal experts seem to back up claims about what the law is on a particular point with moral argumentation (whether or not explicitly posited legal material, such as a statute or a written constitutional provision, mentions moral considerations, one might add). One antipositivist argument credits the disputants with choosing epistemic arguments that reflect metaphysical truths, and concludes that the law depends at least in part on moral facts.
A familiar legal positivist response is that appearances are deceiving. The disputants are supporting a claim about what the law should be by moral argumentation, because the law at this point is indeterminate. Yet that’s not what many disputants would say, as their use the language of discovery suggests. To borrow an idea from Leiter, the positivist either concludes that the disputants are disingenuous (perhaps because the conventions of legal argumentation require them to appear to argue only about antecedent law) or that legal practitioners, legal scholars, and legal officials misunderstand what they are doing when they rely on moral argumentation. But how can so many experts be so mistaken? That’s what Plunkett and Sundell explain, and they do so plausibly, without denigrating the knowledge, honesty, or intelligence of the expert practitioners. Continue reading "Moral Argument in Legal Disputes: Why So Many Are Mistaken"
