Yearly Archives: 2016
Mar 23, 2016 Bridget J. CrawfordTax Law
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"
Mar 22, 2016 Angela FernandezLegal History
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"
Mar 21, 2016 Kristina NiedringhausLexLibrarianship and Legal Technology
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 Paper 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"
Mar 18, 2016 Shelley SaxerProperty
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"
Mar 17, 2016 Michael CarrollIntellectual Property Law
Eric Priest,
Acupressure: The Emerging Role of Market Ordering in Global Copyright Enforcement, 68 SMU L. Rev. 169 (2015), available at
SSRN.
Corporate copyright owners based in the United States have been frustrated by the prevalence of piracy in China and in certain other fast-growing markets, and that frustration has led to three primary responses. The copyright industries have (1) supported proposed legislation that would impose enforcement obligations on U.S. parties, such as the Stop Online Piracy Act; (2) advanced expansive interpretions of the enforcement jurisdiction of the International Trade Commission; and (3) deployed technological protection measures.
In his new article, Acupressure: The Emerging Role of Market Ordering in Global Copyright Enforcement, Professor Priest identifies two additional strategies that seem to have promise. These strategies rely on pressuring certain intermediaries that hold the power to deny infringers access to the markets they seek to serve. Presenting these as case studies, he then abstracts away to model how and when market-based pressure on intermediaries or customers – the “Acupressure” in the title – are likely to be effective. He concludes by revisiting familiar critiques of copyright enforcement through private ordering and integrates these into his analysis of the public policy ramifications of these new developments. Continue reading "Creative Strategies for Beefing Up Copyright Enforcement"
Mar 16, 2016 Lumen N. MulliganCourts Law
Elizabeth McCuskey,
Submerged Precedent, 16
Nev. L. Rev. ___ (forthcoming 2016), available at
SSRN.
In Submerged Precedent, Professor Elizabeth McCuskey unearths new data on the rate of remand from federal to state courts in suits alleging 28 U.S.C. § 1331 jurisdiction under a Grable & Sons theory. As part of her vigorous data collection project, McCuskey determined that substantial numbers of the district court opinions she studied never found their way into commercial databases or PACER, substantially skewing our understanding of caselaw in this area. From this starting point, she launches into an intriguing normative discussion on the need to bring this body of “submerged precedent” to the surface. She concludes with a call for a strong presumption that all reasoned district court opinions be made publically available. For those of us who study the federal courts, Submerged Precedent’s raises intriguing empirical and doctrinal questions to which we should turn our attention.
McCuskey’s study focuses upon a particular method of taking § 1331 jurisdiction in federal court. The vast majority of cases take § 1331 jurisdiction under the so-called Holmes test (i.e., vesting § 1331 jurisdiction because the plaintiff raises a federal cause of action). There exists, however, a narrow exception to the Holmes test whereby federal question jurisdiction may lie over state-law causes of action that necessarily require construction of an embedded federal issue. McCuskey focuses her work on these cases, seeking to discover the rate at which suits removed to federal court under that theory are remanded from to state court. Continue reading "Should We Publish All District Court Opinions?"
Mar 15, 2016 Robin WestJurisprudence
Scott Allen Anderson,
Conceptualizing Rape as Coerced Sex, Univ. of British Colombia (2015), available at
SSRN.
Scott Anderson’s article Conceptualizing Rape as Coerced Sex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.” So understood, rape is the criminal act of “either creating or taking advantage of pre-existing differentials in the ability and willingness to use force or violence,” toward the end of obtaining sexual gratification from the victim. The power differentials that render the pressure “coercive” are quintessentially created through direct force, violence, or threats of violence, but might also include taking physical advantage of another who is mentally or physically incapacitated because of intoxicants or cognitive or mental impairment. Most important, though, the power differentials at the core of the “coerciveness” that renders sex rape might be facilitated not by direct threats, but by drawing upon “the link between the threatener and others of a similar kind who have used similar powers in the past.” When sex is “coerced” in any of these ways, such that the victim is not able to “usefully or reasonably ignore, deflect, evade, or work-around the enforcement of the threat,” then the sex that results should be understood as rape.
Note that on Anderson’s account the victim’s consent or non-consent is not part of the definition of the crime (although it may enter as a defense). Rather, the definition focuses squarely on the assailant’s acts and mental states, rather than those of the victim: did the assailant create or take advantage of pre-existing differentials in the ability and willingness to use force or violence” to obtain sex. Nor does it require direct force: rather, the “differentials” in power that facilitate the rape may pre-exist the act itself, and may be as much a function of the similarity between the agent and others similarly situated, as anything the agent himself does in the particular encounter. This coercion-based account, Scott argues, would avoid both the under-inclusiveness of definitions of rape that center on force, and the possible over-inclusiveness of definitions of rape that center on consent. More significantly, it would better capture both what is distinctively harmful about rape, why rape is overwhelmingly (but not universally and certainly not by definition) a crime committed by men upon women, and why rape is a constitutive aspect of gender subordination to women’s detriment. Continue reading "On Rape, Coercion and Consent"
Mar 14, 2016 Verity WinshipInternational & Comparative Law
One strategy for increasing overseas investment, especially in developing economies, is to assure investors that they will have recourse if something goes wrong. With this in mind, bilateral investment treaties often allow investors to bypass suspect local courts, going instead to international arbitration. The article Predictability Versus Flexibility: Secrecy in International Investment Arbitration, written by political scientists Emilie M. Hafner-Burton, Zachary C. Steinert-Threlkeld and David G. Victor, identifies the following tension: The willingness of host governments to agree to arbitration in their investment contracts was designed to signal their friendliness to investors. But these arbitrations often happen behind closed doors. And, in fact, this secrecy is part of the institutional design. How does the secrecy interact with the signal? When is the result of arbitration most likely to be concealed? Have efforts to increase transparency worked?
To answer these questions, the authors study records of investor-state arbitration by the World Bank’s Centre for Settlement of Investment Disputes (ICSID). It is not easy to study something secret. But the authors fruitfully exploit two features of ICSID arbitrations to test their educated guesses about what goes on behind closed doors. First, either party in ICSID arbitration can unilaterally request secrecy. The authors report that they do so in about 40% of arbitrations, which allows comparison between confidential outcomes and those that are disclosed. Second, only the outcome is secret. The fact of arbitration and the identity of parties is not. Using this information, the article ultimately provides an account of the functional benefits of confidential arbitration, especially for the state. It portrays arbitration’s confidentiality as built into the initial treaty structure, giving flexibility that preserves the viability of long-term projects. Continue reading "Behind Closed Doors: The Role of Secrecy in International Investor Arbitration"
Mar 11, 2016 Lynda Wray BlackTrusts & Estates
Traditionally, irrevocable trusts have been, well, irrevocable. The terms of the trust are fixed and the life of the trust cannot be cut short. Whether irrevocability emanates from the trust document itself or from circumstances such as the settlor’s death or incapacity, traditional irrevocability tied the hands of those interested in modifying the trust to accommodate changes in circumstances. Irrevocability was the doctrine through which the settlor could maintain control of the trust property throughout the life of the trust. Trust law acknowledges the tension between the original intent of the settlor’s dead-hand control and the current desires of the beneficiaries. As this tension is being resolved by greater accommodation of the current beneficiaries’ desires, has the doctrine of irrevocability lost its relevance?
In his recent article entitled Sherlock Holmes and the Problem of the Dead Hand: The Modification and Termination of “Irrevocable” Trusts, Dean Richard Ausness proposes a compromise. The first generation of trust beneficiaries would remain subject to the traditional rules disfavoring modification and early termination of trusts; subsequent generations of trust beneficiaries, however, would possess a liberating ability to modify a trust without court approval. The language of irrevocability would have renewed life, but only a short life. Continue reading "How to Bolster the “Ir” in Irrevocable"
Mar 10, 2016 David OrentlicherHealth Law
The right to aid in dying (or physician-assisted suicide) has developed with different standards in the United States than in the Netherlands and Belgium, and a recent study suggests that the United States has gotten it right in a critical respect—on the criteria for eligibility. Patients can more easily qualify for aid in dying in the Netherlands and Belgium and that creates a potential for misuse that is not present in California, Oregon, Vermont, and the other American states that permit the practice. In particular, as a new study by Kim, De Vries, and Peteet indicates, the possibility that people with psychiatric disorders may choose aid in dying when treatment for their disorders might address their despair is a more serious problem in Europe than in the United States.
Concerns about psychiatric motivations give rise to a very important argument against a right to aid in dying. If people can choose aid in dying because of mental illness, people may opt for death when proper therapy would restore their desire to live. And anecdotal reports in both the United States and Europe reinforce this concern. In a Frontline report on underground aid in dying in the United States, filmmakers documented the death of a woman whose mental illness led her to harbor false beliefs about her health. Similarly, an article in The New Yorker described the troubling case of a Belgian woman who underwent euthanasia, which, like aid in dying, is permitted in Belgium, despite physician assessments that her psychiatric depression was not serious enough to make her eligible for assistance in dying. Continue reading "Physician Aid in Dying and Mental Illness"
