Monthly Archives: September 2016

Telling the Middle Class How to Be Middle-Class: Tax Incentives for Saving

Lisa Philipps, Registered Savings Plans and the Making of Middle Class Canada: Toward a Performative Theory of Tax Policy, 84 Fordham L. Rev. (forthcoming 2016), available at SSRN.

Analyses of tax policy are typically based on a familiar cost-benefit framework. There are important debates about which costs and benefits should be included (and which are measurable), but the standard formula is simple: (1) Describe the policy goal; (2) Present the costs and benefits of a policy that is meant to achieve that goal; and (3) Conclude that the policy is good or bad, depending on whether benefits exceed costs or vice versa.

In her important new article, Professor Lisa Philipps uses a Canadian tax policy debate to show that this approach is fundamentally misleading. Standard cost-benefit analysis—even if it is focused on inequality or other social outcomes— ignores the effect that adopting policies has on, as Philipps puts it, “the range of policy options considered thinkable.” (P. 102.) Tax policies can become embedded in the social system in a way that cannot be explained by standard cost-benefit analysis, and the resulting changes in social expectations can lead to self-defeating policy inertia. Continue reading "Telling the Middle Class How to Be Middle-Class: Tax Incentives for Saving"

Are Corporations Responsible Agents?

In The Structure of Tort Law, Revisited: The Problem of Corporate Responsibility, Benjamin Ewing, a visiting assistant professor at Duke Law School, breaks fresh ground by stitching together contemporary tort theory and recent philosophical work on responsibility. By knitting these threads together, Ewing’s fluent, sophisticated paper shows that imputing moral responsibility to artificial legal persons is an eminently plausible enterprise. The Structure of Tort Law, Revisited shows us that it makes eminently good sense to think about corporations not merely as institutions that we may manipulate to pursue valuable social objectives, but as institutions that bring responsibility upon themselves by their actions. In doing so, the paper broadens the horizons of normative non-instrumental tort theory.

As Ewing notes at the outset of his article, “moralized accounts of tort law” seem “particularly impotent” (whereas economic approaches to tort “seem especially powerful”) in tort cases in which corporate defendants are either held vicariously liable for the torts of their employees, or are themselves held directly liable for the marketing of defective products. (P. 2.) “It is obvious that tort law may affect corporations’ incentives but it is not self-evident that tort liability can be meaningfully understood as a form of moral accountability when it is imposed upon corporate rather than human persons.” (Id.) The central insight of Professor Ewing’s paper is that a particular form of responsibility— namely, “attributive responsibility”— is fundamental to accountability in both law and morals, and that corporations are attributively accountable agents. Continue reading "Are Corporations Responsible Agents?"

Does Compensation Deter Takings? New (and Surprising) Evidence

Ronit Levine-Schnur & Gideon Parchomovsky, Is the Government Fiscally Blind? An Empirical Examination of the Effect of the Compensation Requirement on Eminent Domain Exercises, 45 J. Legal Stud. (forthcoming 2016), available at Penn Law: Legal Scholarship Repository Paper 1595 (Oct. 13, 2015).

This article delves into the issue of compensation, which looms large in debates about eminent domain for two reasons. The first reason is the concern that owners may be systematically undercompensated when property is taken by eminent domain because the constitutionally mandated “fair market value” measure of compensation, articulated in United States v. Miller (U.S. 1943), does not take account of subjective losses.

The second is the presumption, especially prevalent among law and economics scholars, that the compensation requirement cures the “fiscal illusion” problem (i.e., the fact that government actors presumably ignore costs that are not reflected in their budgets). According to this view, compensation ought to deter excessive takings by forcing “takers” to internalize the financial cost of their actions. This assumption is reflected in post-Kelo v. New London (U.S. 2004) state eminent domain reforms that mandate above-market compensation for certain categories of takings. It is also offered as a justification for compensating certain categories of “regulatory takings.” Continue reading "Does Compensation Deter Takings? New (and Surprising) Evidence"

Looking Intersectionally and Seeing Structural Bias

Every day, across the criminal justice system, state and private actors wield discretion in making decisions: Is a girl standing before a police officer, prosecutor, child welfare official, or social worker a victim in need of protection or a perpetrator, in need of punishment? Does she need harsh correction or gentle, resource-rich protection? Is she a prostitute or is she a victim of trafficking? In (E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors, Priscilla Ocen presents compelling data suggesting that these discretionary decisions open a door to the exercise of implicit bias and lead to devastating outcomes, disproportionately removing Black girls from the realm of protection embodied by anti-trafficking laws and placing them squarely in the hands of the punitive mechanisms of the juvenile justice system. These facts are tremendously important but, sadly, not surprising. They only add to the wealth of information definitively establishing the disproportionate negative outcomes for Black women, men, boys, and girls in the social welfare, child welfare, criminal, and juvenile justice systems.

While the statistics are jarring, the important questions to ask are causal: Given that Black girls are disproportionately vulnerable to exploitation and disproportionately victimized, why, as a society, do we tolerate them being disproportionately punished? Why are they not, as both the data and intersectionality theory might suggest they should be, at the very center of our efforts to protect girls? Continue reading "Looking Intersectionally and Seeing Structural Bias"

How Do Lawyers’ Expertise Matter in Ordinary Litigation?

Lawyers play important roles in litigation. To scholars and law practitioners, this statement sounds almost like a truism. To be sure, if millions of people pay hefty fees to retain lawyers in litigation, then the expertise that these lawyers possess and the services that they provide must be valuable. However, which part of lawyers’ expertise makes a bigger difference in ordinary litigation? Their knowledge of the law? Their familiarity with legal procedures? The social networks and relations that they develop with others? Or the symbolic power of their licensing and professional credentials? In the scholarship on the legal profession, all these aspects of lawyers’ expertise have been investigated through case studies and ethnographic work, such as Sarat & Felstiner’s (1995) work on how divorce lawyers control and construct their clients, Herbert M. Kritzer’s (2004) analysis of contingency fee lawyers as gatekeepers of the justice system, Mather, McEwen, and Maiman’s (2001) study on the collegial community of divorce lawyers, and so on. Nevertheless, there had been little systematic effort to test the effects of lawyers’ expertise in ordinary litigation using statistical methods and meta-data, until Rebecca L. Sandefur’s 2015 article Elements of Professional Expertise in the American Sociological Review.

In this article, Sandefur distinguishes between two types of expertise, substantive and relational, following Barley’s (1996) definitions. Substantive expertise is “concerned with professions’ peculiar categories and theoretical frameworks,” including “understanding both substantive law – statutes, doctrines, legal principles, and relevant past cases – and legal procedures.” (P. 911.) By contrast, relational expertise involves understanding “how to navigate the relationships involved in getting the work done” and “the social distribution of knowledge and discretion in the actual relationships through which professional work takes place.” (P. 911.) Whereas substantive expertise is “abstract” and “principled,” relational expertise is “situated” and “contextual.” (P. 911.) Both at are work in the practice of lawyers and other professionals, though relational expertise probably plays a bigger role in the work of lawyers than that of doctors or engineers given the strong relational nature of legal work. Continue reading "How Do Lawyers’ Expertise Matter in Ordinary Litigation?"

Common Law in the Age of Arbitration

Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016).

Judge-made law is dynamic. Rules adapt to innovations in technology, trends in human behavior and markets, and nascent theories that unsettle previously entrenched approaches to a problem. Even when a rule’s basic elements are stable, the accretion of new decisions can lead to subtly different formulations, caveats, and corollaries. Observers might therefore assume that doctrine in any given field will evolve for as long as affected actors are creative and litigious.

But even litigious actors cannot instigate changes to judge-made rules if litigation cannot lead to new judicial opinions. Myriam Gilles proposes a thought experiment to illustrate this possibility in her new article. Suppose that all cases in field X were suddenly shunted to arbitration, such that courts had no further opportunity to write opinions expounding on the law of X. Further suppose that choice-of-law provisions required arbitrators to apply judge-made rules governing X and that arbitrators would not write detailed opinions explaining their decisions (or that their opinions would be inaccessible to nonparties). In this hypothetical regime, the common law of X would stagnate. Doctrine would remain on the books as a source of guidance for arbitrators addressing the idiosyncrasies of individual cases. But those idiosyncrasies would no longer be catalysts for refining the publicly articulated rules that arbitrators apply. Judge-made law would shape outcomes, yet outcomes would not reshape the law. Continue reading "Common Law in the Age of Arbitration"

Law, Legend, and Forgotten Histories of Survivance

In 2016, legal history is a capacious field – one with a catholic view of what counts as law and a willingness to find legal significance in a wide range of places. Katrina Jagodinsky’s Legal Codes and Talking Trees challenges legal historians to be even more inclusive, especially in the voices we seek to hear and the sources we mine. By pairing underused state and territorial court records with oral histories, legends, local newspaper records, and intricate genealogical research, Jagodinsky offers an all-too-rare glimpse of the experiences and perspectives of Indigenous women in the nineteenth and early twentieth centuries, as they navigated formal legal systems that were not their own.

Legal Codes and Talking Trees centers on the legal encounters of six Indigenous women in “borderlands” communities, spaces marked by competing territorial claims, overlapping legal jurisdictions, and mixed populations. Three of the cases come from the Sonoran Southwest (encompassing parts of present-day Arizona, California, and Northwest Mexico) and three from the Puget Sound region (including parts of present-day Washington and British Columbia). Jagodinsky selected these two regions because of the different approaches that white settlers took to the Indigenous populations there. But when it came to Indigenous women’s “bodies, progeny, and lands,” she discovered “remarkably similar demands from [American] citizen men and women” (P. 11). Continue reading "Law, Legend, and Forgotten Histories of Survivance"

Whistling for the Dog in Affirmative Action

Reviewing Khiara Bridges, The Deserving Poor, The Undeserving Poor and Class-Based Affirmative Action, 66 Emory L.J. (forthcoming 2017), available at SSRN.

The link between race and class inequality is a hot topic. The top two anti-establishment movements of the year are Black Lives Matter and Bernie Democrats, and the relationship between them is complicated. In addition, Donald Trump has built a campaign appealing to white middle- and working-class voters by blowing the racism dog whistle. Figuring out why those voters continue to support Trump despite (or because of) his racism is the question of the hour on my Facebook feed.

Which is why I was excited to see Khiara Bridges’ latest paper on class-based affirmative action (from here on, I’ll call it “class-based AA”) pop up in my inbox. Far from the heat of the election, Bridges has written a wonderful article that explores the race-class divide among supporters of affirmative action. In this paper, Bridges argues that class-based AA enjoys widespread bipartisan support because its beneficiaries are white. More specifically, she argues that continuing support for class-based AA depends on differentiating between poor whites as people who deserve to benefit from class-based AA and undeserving poor people of color, who should not. Indeed, she concludes, support for class-based AA might well dry up if people of color were to become class-based AA’s primary beneficiaries. Continue reading "Whistling for the Dog in Affirmative Action"

The Cruel Optimism of Human Rights and Legal Justice

Cyra Choudhury

Cyra Choudhury

In her article Precarious Desires and Ungrievable Lives: Human Rights and Postcolonial Critiques of Legal Justice, Ratna Kapur argues that for the vast majority of subordinated peoples, faith in international human rights and, indeed, in law as a vehicle to achieve equality, recognition, and redress for harm has often been misplaced. For sexual subalterns in particular, liberal legal institutions and laws are part of and promulgate a heterosexist normative order that constantly refashions these precarious desires and their justice claims into conformity with that order. Kapur suggests that instead of investing our energies as activists in law, we should rethink our notions of justice by moving away from the constraints of liberal legalism to more affective and postcolonial registers.

There are three points that make this article particularly important and a welcome addition to the critical literature on international human rights. First, it asks us to question whether human rights activism and the law are the best, let alone only, mode of engagement for subordinated populations. Second, it directs our attention to that which is often lacking in law in general and international law in particular: the affective, lived experiences of the subject of rights. In particular, for LGBT people, the article makes visible the uncomfortable and cruel optimism of human rights in an already dominant heteronormative order. And it reminds of the postcolonial critique of liberalism and liberal rationality. Continue reading "The Cruel Optimism of Human Rights and Legal Justice"

Speaking from the Grave. Should Copyright Listen?

Eva E. Subotnik, Artistic Control After Death, 92 Wash. L. Rev. (forthcoming 2017), available at SSRN.

Should authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review).

Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s integration into artistic or literary culture, under the law, heirs and literary estates have the power to exercise control over the work’s continued use and dissemination. Continue reading "Speaking from the Grave. Should Copyright Listen?"

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