Monthly Archives: January 2016

The History, and Worrying Contemporary Relevance, of Anti-Trust Law for Non-Traditional Worker Organization

Sanjukta Paul, The Enduring Ambiguities of Antitrust Liability for Worker Collective Action, 47 Loy. U. Chi. L.J. ___ (forthcoming 2016), available at SSRN.

As someone interested both in the history of workplace law and in modern forms of worker organization, but not especially well-versed in antitrust law, I was delighted to read, and learned a lot from, Sanjukta Paul’s excellent article. The piece starts with a troubling suggestion I have not seen seriously addressed elsewhere: antitrust law could be used against workers engaged in collective action if those workers are not traditional employees: e.g., against low-wage independent contractors. After showing this is a legitimate concern, Paul provides a rich description of the history of antitrust law (including but not limited to the “labor exemption”). She then makes a convincing argument that while current antitrust law could be applied to such collective action, it should not be. While her history is ultimately aimed at a modern issue, this is not “law office history.” Indeed, her detailed discussion of the development of both antitrust and labor law (a rare combination) would be a worthwhile contribution to the historical literature by itself. Linking it to a modern question makes the piece even more valuable.

Paul starts with a vignette about a 1999 federal antitrust investigation into potential price-fixing by striking port truck drivers who were not “employees.”  This leads her to the early days of labor and antitrust. She argues that before the New Deal, courts “dominated by classicists who were concerned primarily with freedom of trade and contract, imported fundamentally hierarchical and coercive assumptions regarding workers” into the Sherman Act. (P. 2.) In so doing, the courts “relied upon status-based normative assumptions that violated their own freedom of contract principles.” (P. 2.) Worker collective action was thus presumptively illicit. The “labor exemption” the Supreme Court ultimately created in the 1940s was the exception, not the rule, and arguably might not apply to independent contractors. Continue reading "The History, and Worrying Contemporary Relevance, of Anti-Trust Law for Non-Traditional Worker Organization"

Mapping Chinese Trusts with a Patrimony Compass

Kai Lyu, Re-Clarifying China’s Trust Law: Characteristics and New Conceptual Basis36 Loy. L. A. Int’l & Comp. L. Rev. 447 (2015).

Kai Lyu explains some of the unique characteristics of Chinese trust law in Re-Clarifying China’s Trust Law: Characteristics and New Conceptual Basis. China’s civil law basis makes for a strange soil in which to transplant (and codify) a common law concept such as the law of trusts, which owes its origins to Medieval England. But other jurisdictions (Japan and South Korea, for example) have adopted trust law without generating the odd mutations that China has. What happened and how can one approach an understanding of the unique creation that is Chinese trust law?

The two principle unorthodoxies with trust law in China are the ambiguous title to the trust res and the almost unrestrained retained powers of a settlor that the 2001 trust act (enacted by the National People’s Congress after two false starts in 1996 and 2000) generated. Lyu grounds the thinking of the Chinese legislators in the law of contracts, and identifies how contract law falls short as a theory in explaining trusts, even—or perhaps especially—Chinese trusts. Instead, Lyu proposes, Roman law’s patrimony theory provides a lens for understanding the unique characteristics of Chinese trust law. Continue reading "Mapping Chinese Trusts with a Patrimony Compass"

Stealth Ways to Keep Tort Cases from African-American Juries

Donald G. Gifford & Brian M. Jones, “Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law,” __ Wash. & Lee L. Rev. __ (forthcoming 2016), available at SSRN.

What do Alabama, Maryland, North Carolina, Virginia, and Washington D.C. have in common? Answer: They all apply the doctrine of contributory negligence to tort cases. Indeed, they are the last five contributory negligence outposts; the rest of the United States has long since moved on to comparative fault regimes of one form or another.

They are, moreover, all located in the South. And according to Donald Gifford and Brian Jones, this is no coincidence.

In their provocative article, Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law, Gifford and Jones argue that certain states cling to contributory negligence and other “anti-plaintiff” tort doctrines to prevent cases from being decided by juries. The most worrisome aspect of their thesis is that this concerted effort to insulate cases from juries is most pronounced in Southern states whose major urban centers include significant African-American populations. Continue reading "Stealth Ways to Keep Tort Cases from African-American Juries"

Understanding Law by Doing Anthropological Fieldwork

Francis Snyder, The Contribution of Anthropology to Teaching Comparative and International Law in The Trials and Triumphs of Teaching Legal Anthropology in Europe (Marie-Claire Foblets, Gordon Woodman and Anthony Bradney eds., 2015), available at SSRN.

Empirical approaches to law are commonplace now, but once they were rare and occasionally looked down on by classically trained lawyers who favored doctrinal methods of analysis. Francis Snyder’s engaging paper on the contribution of anthropology to teaching comparative and international law raises questions and issues on empirical law. Economics and law is probably the best known and most widespread combination of social science and law, although law and society was the first entrant to this new academic field. Law imports many concepts and methods from sociology, psychology, history and others. And yet legal education still struggles with how to incorporate these other disciplines into its syllabus. How then is legal education affected by incursions from other fields? For American readers the research discussed by Snyder takes place outside the US although recent work on legal ethnography by Eve Darian-Smith, The Crisis in Legal Education: Embracing Ethnographic Approaches to Law brings it firmly back onshore.

Snyder came to anthropology indirectly, first as a political scientist interested in one-party government in Mali, second as a research assistant for a Chinese law professor, and thirdly in doing a PhD in Paris on comparative law and legal anthropology (p. 1). These early experiences fed through into his teaching of comparative law in Canada. It was while at Warwick, the home of law in context, that Snyder introduced the anthropological framework into EU law and its Common Agricultural Policy (CAP), the key common policy of the EEC. Instead of analysing rules and decisions, Snyder examined the formation of CAP from the ground up, how the different political actors negotiated with each other, and how the policy impacted on farmers and consumers. In extending this into food policy, students were required to negotiate, draft and apply rules in relation to the regulatory regime for lamb meat. This was part of Warwick’s drive to incorporate non-legal materials into legal subjects. (See the Law in Context series by CUP for further examples.) These approaches were reinforced by the tackling of bigger topics such as globalisation and China and establishing a new journal, the European Law Journal, which encouraged alternatives to black-letter law. Continue reading "Understanding Law by Doing Anthropological Fieldwork"

Tax Havens and the Rise of Inequality

Gabriel Zucman, The Hidden Wealth of Nations (2015).

Tax literature is bitterly divided on the role that tax havens play in global economy. The negative view of tax havens paints them as parasitic, poaching revenue from other jurisdictions. The positive view suggests that tax havens facilitate low-cost capital mobility, mitigating some of the distortive effects of taxation.

To date, this extensive scholarly debate has produced very little information on tax havens themselves. This is hardly surprising, since tax havens are well known to be secrecy jurisdictions. This aspect of tax havens forces scholars who write about them to resort to financial modeling or available country data – data which is rarely on point. Zucman’s book is a unique breed in this context. In order to address the role of tax havens in global economy, Zucman actually collects and interprets the necessary data. Zucman assesses the wealth held in tax havens based on a long lasting anomaly in public finance: that in the aggregate, more liabilities than assets are recorded on national balance sheets, as if a portion of global assets simply vanishes into thin air, or as Zucman put it: “were in part held by Mars.” Zucman meticulously collected macro-economic data of multiple jurisdictions, and discovered that roughly the same amount of assets missing from national balance sheets shows up as ownership interest in investment pooling vehicles (such as mutual funds) organized in tax havens. Continue reading "Tax Havens and the Rise of Inequality"

Property as a Vehicle of Inclusion to Promote Human Sociability

Daniel B. Kelly, The Right to Include, 63 Emory L.J. 857 (2014), available at SSRN.

Quite often, “private property” brings with it characterizations of individualism, isolation, and exclusion along with images of fences, gates, locks, boundaries, and barriers. In fact, a “keep out” sign has often been identified as a symbol for the essence of private property rights and their function. Professor Daniel B. Kelly reminds us that such images and characterizations miss a huge portion of the utility served by property law that fosters the capacity and motivation to hang a different sign—one that says “come on in.” Professor Kelly’s recent article, The Right to Include, 63 Emory L.J. 857 (2014), catalogs and analyzes the range of legal options available to owners to include others in the use, possession, and enjoyment of real property.

In recent property law literature, the “right to exclude” has gotten most of the ink. In fact, Kelly explains that, “[i]n delineating the bundle of rights that characterizes property, courts have not identified the right to include as a distinct attribute of ownership,” (P. 868) and most scholars have only hinted at the importance of this separate strand of rights within ownership. Professor Kelly’s work is a welcome rectification of this imbalance of affection. If indeed human beings are dependent on each other to survive and flourish, then finding ways to facilitate inclusiveness in relation to property is vital to nourishing our “interaction imperative.” Kelly thoroughly explores the rules and doctrines in property and related fields of law that have emerged to ignite inclusion and spur human sociability. Continue reading "Property as a Vehicle of Inclusion to Promote Human Sociability"

Why Insurance Contracts Might be the Trick to Police Reform

Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets and Police Reform, UCLA L. Rev. (forthcoming 2016), available at SSRN.

How do lawsuits deter misconduct? That is an issue that Professor Joanna Schwartz has written about before, and her latest article on the topic, How Governments Pay: Lawsuits, Budgets and Police Reform, could not be more timely. Over the past year, our county has witnessed dramatic instances of police abuse and the public is understandably demanding reform. Schwartz’s terrific article explains why civil rights actions may fail to instigate reform, and suggests how insurance contracts, of all things, can play a role in fixing this problem.

To understand how lawsuits deter, consider a reckless driver. You know, the type that takes corners too fast, sends texts while on the interstate, and whips past school buses with flashing lights. What will it take for the driver to finally reform herself? Well, first of all, she’ll probably get a bunch of tickets. If she gets tired of paying the tickets and fears losing her license, she’ll probably start driving more carefully. Aside from the tickets, however, the driver may end up getting sued when her reckless behavior finally causes an accident. Even though her insurance company will likely pick up the tab for any judgment, the company is likely to jack up her premiums after it pays the damages. In the end, the driver’s recklessness is going to cost her a lot of money. And this will probably convince her to become a safer driver. Continue reading "Why Insurance Contracts Might be the Trick to Police Reform"

Health Care in the Shadow of the Law: The Impact of Abortion Jurisprudence

Johanna Schoen, Abortion After Roe (2015).

The Supreme Court’s latest abortion case, Whole Women’s Health v. Cole, involves a challenge to a Texas law targeting not women seeking abortions but the clinics that provide them. Yet, as Johanna Schoen’s Abortion After Roe reminds us, we know little about how abortion regulations affect those who deliver reproductive health services. Schoen carefully documents how the Court’s abortion jurisprudence has transformed what goes on in American clinics. While historians and legal scholars have often focused on the effect of the Supreme Court’s jurisprudence on access to abortion, Schoen, by focusing on law’s impact on abortion providers, tells a far more nuanced story.

Throughout Abortion After Roe, Schoen focuses on the experience of providers and patients at independent abortion clinics. While the story of Planned Parenthood and other major abortion providers deserves scholarly attention, Schoen persuasively uses the experiences of independent clinics to understand the complex relationship between feminist politics, potential profit, and legal interference that dictated practice at many American clinics. The vast majority of clinics that opened their doors in the 1970s were independent, and by telling their story, Schoen provides a valuable picture of how the medical practice and business of abortion care developed over the course of several decades in an increasingly hostile climate. Independent clinics also often challenged the strategic priorities of the political pro-choice movement. Their experiences expose the disconnect between the reality of abortion care and the rights won and lost by pro-choice lawyers. Continue reading "Health Care in the Shadow of the Law: The Impact of Abortion Jurisprudence"

Can We Talk Money?

One subject that almost never gets attention in major law-review articles is the attorney’s fee. Fees are the underbelly of the law, the bane of theory, the antithesis of high-minded and selfless lawyering, the grubby acknowledgement that lawyers need to eat — and that sometimes they eat very well, indeed. Of course, fees are also what make the legal world go ’round. Among their other effects, fees drive decisions about access to justice: if the lawyer cannot get paid, the lawyer is unlikely to pursue a claim. When a lawyer brings a claim, concerns about fees can affect the lawyer’s decisions about whether and when to settle, and which claims to file or abandon. In particular, the contingency fee is an especially critical component in ensuring both access and law enforcement in a legal system that operates without effective legal aid in civil cases but relies heavily on private enforcement of rights (i.e., the American legal system).

Frank discussion about “the critical role that profit, capital, and risk … play in setting the terms of justice” are, as Tyler Hill points out in his impressive student note, few and far between. The conversation is perhaps most advanced in the field of aggregate litigation. The picture that legal ethicists and law-and-economics scholars often paint is not a pretty one. The divergence between the interests of a group of plaintiffs and the lawyer who represents them can be great. The fear — borne out more by a few anecdotes of near-mythic proportion than by hard empirical evidence — is that lawyers will collude with defendants and sell out the interests of a class in return for a fat fee. Even without collusion, however, the lawyer is usually the largest stakeholder in class-action or other aggregate litigation; to believe that lawyers’ concerns over the collectability and size of their contingency fee have no impact on lawyers’ conduct during litigation is to expect that lawyers possess a level of virtue that even Diogenes would have found admirable. Continue reading "Can We Talk Money?"

The New Eliminativism

Scott Hershovitz, The End of Jurisprudence, 124 Yale L.J. 1160 (2015).

This article exemplifies — in a very clear and accessible way — a new position that appears to be emerging among philosophers of law in the anti-positivist tradition. Previously one would have described positivists and anti-positivists as providing different answers to the following question: What grounds the existence and content of legal norms? For positivists, the answer was social facts. For anti-positivists, the answer was a combination of social and evaluative (particularly moral) facts. No one doubted that there are distinctively legal norms (legal rights, obligations, privileges, powers) that together constitute the law of a community — and that these norms are different from the norms of morality and prudence.

Notice that even though anti-positivists considered the existence and content of legal norms to depend on the confluence of social and moral facts, they generally treated legal norms as distinct from moral norms. Consider Ronald Dworkin’s anti-positivist theory of law, as presented in Law’s Empire. Under this theory, the law of a jurisdiction is the set of norms that would be accepted after a process in which “the interpreter settles on some general justification for the main elements of [legal] practice” and then reforms it by “adjust[ing] his sense of what the practice ‘really’ requires so as better to serve the justification” (P. 66). In particular, the interpreter attempts to come up with a justifying connection between past political decisions and present coercion (P. 98). Continue reading "The New Eliminativism"