Monthly Archives: March 2016
Cynthia Barmore, Auer in Action: Deference After Talk America
, 76 Ohio St. L.J.
813 (2015), available at SSRN
Administrative law geeks know that Auer deference has been in trouble. This doctrine, which used to go by the much better name of Seminole Rock deference, instructs courts to defer to an agency’s interpretation of its own rule so long as the interpretation is not plainly erroneous. Its primary supporting intuition is that an agency should be better than anyone else at interpreting a rule that it drafted and implements. During the last five years of his life, Justice Scalia mounted a strong campaign to eliminate this doctrine, which he had come to regard as a terrible affront to separation of powers. Although Justice Scalia is now gone, his critique of Auer retains substantial support on the Court. Justice Thomas agrees with it; Justice Alito has expressed strong sympathy; and the Chief Justice might be on board, too.
But, before rushing off to dump Auer in the ashbin of administrative law history, those who prefer to take their separation of powers with a dash of functionalism might like to know: Just how are courts applying this deference doctrine these days, anyway? Fortunately, Cynthia Barmore has shed considerable light on this question in her article, Auer in Action: Deference after Talk America, which was just published in the Ohio State Law Journal. Her hard work reveals that affirmance rates under Auer have declined in recent years and are in line with the rates for other so-called “deference” doctrines. Courts do not, in short, seem to treat Auer as granting agencies free rein to abuse regulated parties with aggressive (mis)interpretations of their regulations. Continue reading "Counting Out Auer Deference"
Brooke D. Coleman, The Efficiency Norm
, 56 B.C. L. Rev. 1777 (2015), available at SSRN
In his year end report, Chief Justice Roberts stated that the 2015 civil procedure amendments were “to address the most serious impediments to just, speedy, and efficient resolution of civil disputes.” Roberts clearly was referring to Rule 1 of the Federal Rules of Civil Procedure, which states that the rules are to be interpreted to achieve a “just, speedy, and inexpensive determination.” In other words, Roberts equated efficiency with inexpensive. The Chief Justice’s comment illustrates the “efficiency norm” problem that Professor Coleman has addressed in her noteworthy article. The courts, the rulemakers, and Congress have defined efficiency too narrowly, and this definition has resulted in fewer trials and an anti-plaintiff bias.
In her article, Coleman considers the important question of how the concept of efficiency should affect litigation. She first recognizes that the number of cases filed in federal court has increased significantly since the rules were adopted in 1938—some of this as the result of the creation of new substantive rights. This phenomenon has lead to criticism of the litigation system. Influenced by and participating in this criticism, the institutional actors of the rulemakers, the judiciary, and Congress have promoted “the efficiency norm.” Under this mandate, they make changes in the name of efficiency and focus on just cost—more specifically on only certain costs—the costs to corporate or governmental defendants. Continue reading "Redefining Efficiency In Civil Procedure"
Before big data, before cloud computing, before ubiquitous smart phones and tablets, and almost before a version of Windows that actually worked, Richard Susskind has been predicting that, eventually, technology will displace lawyers. While the topic of how technology will change law and other professions is now a flavor of the day, you haven’t done your homework if you try to write about how technology will affect law without taking Susskind into account.
Susskind is back with an ambitious new book, co-authored with his son Daniel, entitled The Future of the Professions. This book is both broader and deeper than Susskind’s previous work – broader, in that he takes on all the professions, not just lawyers, and deeper, in that he delves into just what it is that makes professional work different. He addresses head on how advancing technology impacts the core role of professions. Continue reading "All About the Information Substructure"
Noah Zatz, Special Treatment Everywhere, Special Treatment Nowhere,
95 B.U. L. Rev.
1155 (2015), available at SSRN
This year’s law and scholarship of employment discrimination has invited critical thought, new strategies, and rethinking of traditional legal methods like never before. Among the most innovative pieces is Professor Noah Zatz’s Special Treatment Everywhere, Special Treatment Nowhere, 95 B.U. L. Rev. 1155 (2015). Zatz laments the defensive posture assumed by those on the vanguard of civil rights activism and litigation when, in his own words, “the best defense of civil rights law requires a strong offense.” (P. 1155.)
He proceeds to take issue with the notion that disparate treatment law ought to be color and status-blind, citing the law of affirmative action in particular, and noting that “rather than retreat from ‘special treatment accusations,’” those who wish to preserve and strengthen civil rights laws and protections ought to “name it and claim it,” (p. 1157) meaning confronting these accusations and keeping the law’s (and our) focus on the avoidance of disparate treatment without obsessing over whether this might necessarily invite or involve some special treatment. This eyes-on-the prize approach means endorsing proactive steps that can be taken not only by the courts, but by employers to preempt discrimination. It also means being vigilant about distinguishing legitimate, goal-advancing interventions—that many are quick to dismiss as special treatment—from “raw redistribution.” Ultimately, Professor Zatz concludes, a “[f]ailure to appreciate the remedial context” of affirmative action is precisely what will engender “reckless accusations of ‘special treatment.’” (P. 1157.) Continue reading "Preferential Hiring and “Special Treatment”: It’s all Relative"
Some multi-parent families are created by law and others are created by science. California and a few other states have acknowledged that a child can have more than two legal parents. Professor Daar calls these multi-legal families or families in law. In their quest to serve their patients, physicians seek ways to enable infertile couples to have healthy children. Those doctors make their “treatment” decisions without considering the legal consequences of their actions. For example, in an attempt to lessen the possibility of a child inheriting a medical ailment from his or her mother, doctors may replace unhealthy mitochondrial with material obtained from the oocyte of a healthy female. The use of this mitochondrial manipulation technology (MMT) may result in a child being conceived using an oocyte containing mitochondrial DNA from two women. Professor Daar refers to this as a multi-genetic family or a family in genetics. Numerous articles and books have been written about multi-parent families. Most of the scholarly literature discusses the family law issues that arise because of the existence of these types of families. In her article, Professor Daar goes in a different direction. She focuses upon the impact that the recognition of multi-parent families may have on the intestacy system.
Professor Daar makes the distinction between legal parents and genetic parents. She explores the steps that can be taken in order for the intestacy system to accommodate multi-legal families. In multi-legal cases, more than two persons have been adjudicated as the child’s legal parents. The article also discusses the intestacy system’s treatment of multi-genetics families. In those situations, even though the parents and the children are related by genetics, their relationships may not be legally recognized. Professor Daar examines the manner in which the children and adults in these families may be treated under the intestacy system. Professor Daar analyzes the options of including multi-parent families under existing intestacy systems, creating new intestacy schemes to accommodate them, or excluding multi-parent families from the intestacy system. Professor Daar analyzes the treatment of multi-parent families under the existing intestacy system. As a part of that analysis, she compares multi-legal families to other nontraditional families. With regards to multi-genetic families, Professor Daar evaluates the treatment of families that are connected to the decedent by blood. Continue reading "Making Connections"
Avihay Dorfman, Assumption of Risk, After All
, 15 Theoretical Inquiries in Law 293 (2014), available at SSRN
Avihay Dorfman has written an excellent law review article that ably defends claims about junk-food-and-obesity law, the nature of primary assumption of risk, and the validity of anti-libertarian critiques of assumption of risk doctrine.
Dorfman’s own words (with markers I have added) provide the best synopsis of the three objections he raises to assumption of risk doctrine:
First, it is a conclusory doctrine in the sense that (1) its prescriptions are reached by reference to either other tort doctrines, such as (a) duty analysis, or (b) contract law . . . Second, . . .(2) choosing to be exposed to a risk created by others cannot absolve these others of liability, since such consent is not an analytical feature of liability waiver . . . Third, on a philosophical level, (3) the assumption of risk doctrine is none other than a surface manifestation of a laissez-faire vision of labor markets (and probably of other spheres of action).
Here, briefly, are Dorfman’s responses to each: Continue reading "Junk Food and Assumption of Risk"
Lily Kahng, The Not-So-Merry Wives of
Windsor: The Taxation of Women in Same-Sex Marriages
, 101 Cornell L. Rev.
(forthcoming 2016), available at SSRN
The road to same-sex marriage was paved with a tax decision. In United States v. Windsor, 133 S. Ct. 2675 (2013), the United States Supreme Court recognized that same-sex spouses, like different-sex spouses, have the right to pass assets to each other tax-free at death. In arriving at that decision, the Court invalidated the portion of the Defense of Marriage Act that provided that the word “marriage,” for federal purposes, meant only a legal union between a man and a woman. With Windsor, a same-sex marriage that was valid for purposes of state law would be recognized for purposes of federal law. In a tax sense, Windsor put same-sex couples and different-sex couples on equal footing for federal purposes. Many commentators accurately predicted that the Windsor case laid the foundation for the Court’s recognition two years later of a constitutional right to same-sex marriage in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
In the wake of the Windsor and Obergefell decisions, some tax scholars have drawn important attention to legal issues created in the period between Windsor and Obergefell for same-sex couples whose states did not recognize their marriages, as well as challenges faced by those who choose civil unions over marriage. Other tax scholars are wary of Obergefell’s glorification of marriage as the highest form of human fulfillment, and are skeptical that marriage is the correct foundation for a variety of procedural and substantive rules. Continue reading "Widening the Critical Tax Lens"
Creating Legal Worlds, a new book by Greig Henderson, an English professor at the University of Toronto, is about rhetoric and the law and how story-telling is intrinsic to the law. Henderson revisits famous cases (and introduces readers to new cases) in which judges use a variety of rhetorical techniques to engage in persuasive (and, it turns out, at times, not so persuasive) story-telling.
Legal scholars will find value, especially for teaching, in Henderson’s analysis of judgment-writing as craft. However, I think the book has especial purchase power for legal historians, who can contrast Henderson’s approach to cases with the way they generally approach cases and their context. Rather than emphasizing the details of a case and its surrounding circumstances, Henderson emphasizes the technique of the judge as a writer. He explains the literary and rhetorical techniques that judges use (consciously and unconsciously) in order to paint a scene, play on a presumption or prejudice, generate empathy or reassurance that the right result has been reached with cool, clear and unemotional speech. Continue reading "Law and Literature for Legal Historians"
Brianna L. Schofield & Jennifer M. Urban, Berkeley Digital Library Copyright Project Report: Takedown and Today’s Academic Digital Library
, U.C. Berkeley Pub. L. Research Pape
r No. 2694731 (November 2015), available at SSRN
A recent push to provide increased access to research, scholarship, and archival materials, as well as a desire to provide greater visibility to faculty and institutional work, have driven more and more academic libraries to create online repositories. These repositories have successfully generated greater visibility for scholarly work and archival collections and greatly enhanced access to these materials for researchers. Greater visibility and access, however, also bring greater potential for requests that libraries takedown materials either because of intellectual property rights claims or other claims, such as privacy.
Schofield and Urban studied the experience of academic libraries hosting open access repositories and their experience with notice and takedown requests, both under section 512(c) of the Digital Millennium Copyright Act (“DMCA”) and otherwise. They used a survey and targeted interviews to investigate how often takedown requests are received, for what type of content, the basis of the concern, and how the library responded to the takedown request. Schofield and Urban go on to provide recommendations on how libraries should respond to these takedown requests. Their findings have been published in Berkeley Digital Library Copyright Project Report: Takedown and Today’s Academic Digital Library. (available at SSRN) and will be presented at The Future of Libraries in the Digital Age conference. Continue reading "Responding to Takedown Requests for Digital Library Repositories"
For academics, takings jurisprudence is a continuing source of scholarly fodder and intellectual challenge. However, for the lawyers and judges involved in takings litigation, the procedural barriers created by the 1985 decision in Williamson County Reg. Plan. Agency v. Hamilton Bank and subsequent cases have resulted in a “ripeness” mess, frustrating the access of property owners to federal courts. Michael Berger, a top takings litigator from Manett and Phelps, has called this a “Catch 22” rule because property owners are required to first ripen their claims by filing suit in state court, but are then precluded from filing suit in federal court because the state decision is res judicata.
In response to a long-standing call for reform of this formidable hurdle for litigants, Professor Thomas Merrill has suggested a possible solution encompassed in the title of his new work, Anticipatory Remedies for Takings. The new remedial system proposed by Merrill works alongside the eventual just compensation remedy. Continue reading "Finding a Way Out of the Ripeness Mess"