Yearly Archives: 2016
Feb 24, 2016 Adam RosenzweigTax Law
I typically begin my Federal Income Tax course discussing how tax is the one area of law that touches every aspect of life, from birth to death, from marriage to divorce, from retirement to child-care, and everything in between. Similarly, tax scholars write on topics ranging from same-sex marriage and the earned income tax credit, on the one hand, to carried interest and corporate inversions, on the other. By this point, my colleagues are surely tired of hearing me repeat how tax law has something meaningful to say about everything.
Given this incredible breadth and diversity of the tax law, why is it that most people think of tax scholarship primarily as number-crunching, or business planning, or law and economics? While I happen to be sympathetic to this point of view, primarily because it happens to coincide with my primary interests, why is it so often considered the standard for the best of tax scholarship? Continue reading "What is Tax Scholarship, and Who Decides?"
Feb 23, 2016 Ellen BublickTorts
- Christopher Robinette, The Prosser Letters: 1919-1948, 101 Iowa L. Rev. __ (forthcoming 2016), available at SSRN.
- Kenneth S. Abraham & G. Edward White, Prosser and His Influence, 6 J. Tort Law 27 (2015), available at SSRN.
United States courts cited Dean Prosser’s hornbook on Torts more than 200 times over the course of 2015. In that year, courts also cited Dean Prosser’s Restatement (Second) of Torts more a thousand times. Dean Prosser’s work shaped the law of Torts in the United States and continues to do so today, forty-three years after his death. Despite Prosser’s out-sized influence in the field, surprisingly few articles have been written about this founder of contemporary Tort law.
Two recent articles begin to fill that gap. Ken Abraham and Ted White tackle the subject of Prosser’s work and influence. Meanwhile, Chris Robinette uncovers the private correspondence of the man behind the law. Both the Abraham and White article and the Robinette article are insightful, a pleasure to read, and ultimately leave the reader ready to purchase the next chapter (Robinette reveals that part two is in the works). Continue reading "The Man, The Torts Legend"
Feb 22, 2016 Amy SalyzynLegal Profession
North American legal services regulation has been slow to evolve. This reality is particularly apparent when one looks at the rest of the common law world. Take, for example, the radical changes over the last decade or so in the way English and Australian lawyers are governed: among other things, self-regulation has been turfed, as have tight restrictions on non-lawyer ownership. While it is still too early to evaluate the full effect of these and other reforms, they have led to some interesting developments, like publicly traded law firms and the regulation of law firms (as opposed to the regulation of individual lawyers only).
Having observed these changes abroad, many lawyers and academics have suggested that American and Canadian regulators ought to adopt similar reforms in response to modern practice realities. Indeed, to some extent, such changes are already afoot. Some prominent examples include the American Bar Association’s recent passage of a resolution that provides guidance to states if they choose to regulate non-traditional legal services providers and the fact that several Canadian provinces are considering, if not, implementing entity and/or compliance-based regulation (further discussion can be found here, here, and here). Notwithstanding these developments, others have argued that North American legal service regulation should hold firm in the face of dangerous foreign experiments. So who is right? Both and neither, according to a recent book by University of Windsor law professor Noel Semple. Continue reading "A Way Forward: What’s Good and Bad about Legal Services Regulation in the United States and Canada?"
Feb 19, 2016 Shelby D. GreenProperty
Maureen Brady,
Defining “Navigability”: Balancing State Court Flexibility and Private Rights in Waterways, 36
Cardozo L. Rev. 1415 (2015), available at
SSRN.
More than 86,000 square miles of inland waterways traverse and meander throughout the United States. Since ancient times, navigable waterways were not subject to private ownership, but were reserved to the public under the public trust doctrine. In contrast, non-navigable waterways could be privately owned. While riparian and littoral rights are firmly fixed in the common law, what has proven to be more fluid is the definition of “navigability.”
In Defining “Navigability”: Balancing State Court Flexibility and Private Rights in Waterways, 36 Cardozo L. Rev. 1415 (2015), Maureen Brady explains that over the last two centuries, state courts have broadened the concept of navigability, and applied the new definitions to alter existing land titles. As a consequence, many non-navigable waterways have become navigable waterways, increasing public ownership and extinguishing private rights. Continue reading "Recapturing Water for Sustainability Through Redefinitions of Navigability and Ownership"
Feb 18, 2016 Eric BiberLexEnvironmental Law
The future is the Anthropocene Epoch – or at least some geologists argue that human activities now dominate global systems like the oceans and climate in qualitatively different way in the past, justifying the identification of a new geological era. Certainly human impacts on climate change provide a strong example to support this claim. Legal scholars are only just now coming to terms with what (if any) significant implications the Anthropocene might have for our legal system.
One thing I particularly like about Angela Harris’ piece (Vulnerability and Power in the Age of the Anthropocene) is that it takes on the big question of whether and how the Anthropocene matters. Harris argues that the Anthropocene matters because in an era in which humans are changing global systems, there will be ongoing and major impacts on all humans, but especially the most vulnerable – in other words, changes in our global environment will have a particular salience for populations that have less political or economic power. After all, it is no accident that among the countries most vulnerable to the sea-level rise that is a product of climate change is Bangladesh, a poor and politically weak country where tens of millions of people may be displaced. As Harris notes, understanding how climate change affects those without political or economic political power is a key part of beginning a conversation about the relationship between the Anthropocene and critical legal theory. Continue reading "Environmental Law and Justice in the Anthropocene Era"
Feb 17, 2016 Efthimios ParasidisHealth Law
When anecdotes trump data, health policy can become engulfed by bad science. Alena Allen eloquently captures the pitfalls of this phenomenon in her article, Dense Women, which provides a comprehensive normative and descriptive analysis of breast density notification statutes. To my knowledge, Allen is the first legal scholar to tackle this important issue. While breast density notification statutes vary by state, they each share a common goal: ensuring that physicians provide certain information to women who have dense breast tissue and directing women (to varying degrees) to speak to their doctors about further medical tests.
Breast density notification statutes were passed in response to heart-breaking stories of women who were diagnosed with breast cancer despite initially receiving negative mammogram results. One of the leading advocates is Nancy Cappello, who was diagnosed with breast cancer despite ten years of negative mammograms, and was eventually told that only an ultrasound could detect her cancer, given her dense tissue. Following a mastectomy, chemotherapy, radiation, and hormone treatment, Cappello began advocating for legislation mandating that physicians inform women when they have dense breasts. As Allen writes: “Their message is hard to resist. They are advocating to inform and empower women. They want to standardize, improve, and promote increased doctor-patient communication. Their message is so enticing that state legislatures across the country are listening.” In 2009, Connecticut (Cappello’s home state) became the first state to pass such a law, and twenty-three states have followed. (Legislation is pending in ten states, and a bill was recently introduced in the U.S. House of Representatives.). Continue reading "Legislating Medicine"
Feb 16, 2016 Kenneth HimmaJurisprudence
Frederick Schauer,
The Force of Law (
Cambridge: Harvard University Press, 2015).
Some of the most difficult problems in legal and political philosophy concern the state’s use of coercive enforcement mechanisms. The problem of justifying state authority, for example, is an important moral problem precisely because the state characteristically employs enforcement mechanisms that coercively restrict the freedom of law subjects – coercion being presumptively problematic. Without such mechanisms, authority does no more than “tell people what to do” – a practice that seems presumptuous and rude but not one that would give rise to any serious moral problem that warrants a great deal of philosophical attention.
In The Force of Law, Frederick Schauer discusses a variety of problems that arise in legal theory because of the law’s characteristic use of coercive enforcement mechanisms. The book’s treatment of the role of coercion in law spans the entire spectrum of these philosophical problems, encompassing issues that are conceptual, normative, and empirically descriptive in character. It is an unrelentingly fascinating discussion that demonstrates Schauer’s impressive mastery of a literature on coercion that crosses many discipline lines. The book succeeds in bringing the problems associated with coercion back to the forefront of debates about the nature of law; it is, for this and many other reasons, a must-read. Continue reading "Coercion and the Conceptual Force of Law"
Feb 15, 2016 Pam SamuelsonIntellectual Property Law
Sarah Burstein,
The Patented Design, 83
Tenn. L. Rev. ___ (forthcoming 2016), available at
SSRN.
Ornamental designs of articles of manufacture have been patentable subject matter in the U.S. since 1842. About 400,000 such patents have issued in the years since the birth of this regime, two-thirds of which have been granted since 2000. Scholarly interest in design patents has historically been quite modest, but has been heating up lately. This is due in no small part to the epic battle between Apple and Samsung over Apple’s claim that Samsung’s phones infringed some of Apple’s design patents. Samsung has asked the Supreme Court to consider whether the designs at issue are really “ornamental” and thus properly covered by design patents. In addition, Samsung wants the Court to review the award to Apple of its total profits on the sales of the infringing phones in the amount of $399 million.
The Supreme Court has not reviewed a design patent law since 1894. The Court’s 1871 decision in Gorham v. White articulated a test for infringement that is still influential today. Gorham did not raise difficult issues of patent scope because the defendant in that had embodied a clearly ornamental patented design for silverware in directly competing products. Continue reading "What Scope for Patented Designs?"
Feb 12, 2016 Rosalind DixonInternational & Comparative Law
Comparative constitutional law is a field crowded with rich and complex ideas about the role of courts and judicial review in a democracy. Yet into this field has now come an important new argument, which is bound to make a distinctive impression on how constitutional scholars and political scientists around the world understand the positive origins, and normative functions, of judicial review in democratic settings: Samuel Issacharoff’s argument that constitutional courts around the world can and do play a valuable role in “democratic hedging.”
The idea of hedging of this kind arises in response to two basic threats: first, that within many democratic systems there are a range of anti–democratic actors who attempt to use the freedoms enshrined by constitutional democracy to launch an attack on its most basic institutions and stability, from within; and second, that in many new democracies in particular, there are often political elites that are so dominant that they effectively stifle the degree of political competition needed for true democracy, even in the most minimal sense. Continue reading "‘Politics as Markets’ Goes Global"
Feb 11, 2016 Cary C. FranklinConstitutional Law
Jamal Greene,
The Meming of Substantive Due Process, 31
Constitutional Commentary — (forthcoming 2016), available at
SSRN.
In 1980, John Hart Ely pronounced substantive due process “a contradiction in terms—sort of like ‘green pastel redness.’” Today, the idea that substantive due process is an oxymoron has become commonplace. Professors of constitutional law teach that it is so; judges rehearse the criticism in their opinions. Of course, this hasn’t stopped courts from protecting substantive rights under the Due Process Clause. But they have generally responded to this critique by invoking stare decisis rather than building any kind of affirmative textual case for the doctrine. Just five years after Ely’s quip, the Supreme Court conceded that the substantive dimension of due process is not rooted in the language of the Constitution but is simply “the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.” This concession, among other things, has put supporters of the Court’s substantive due process rulings—particularly those vindicating sexual and reproductive rights—on the defensive. The idea that substantive due process is a contradiction in terms cloaks these rulings in illegitimacy. It suggests they are constitutionally unmoored, or worse yet, moored in an interpretation of the document that is fundamentally absurd.
In an excellent, thought-provoking new essay forthcoming in Constitutional Commentary, Jamal Greene shows that this particular critique of substantive due process became prominent only in the 1980s. Substantive due process had, of course, garnered criticism before then—especially during the Lochner era and on grounds that it enabled judges to engage in policymaking. But it was only in the 1980s, in the wake of decisions such as Griswold and Roe, that there was apparently a realization that the word “substantive” contradicts the word “process” in due process analysis—and that this contradiction undermines the validity of the Court’s substantive due process rulings. Greene shows that this realization coincided with the growth and expansion of a certain kind of originalism. The claim that “substantive due process” is inherently contradictory was actively promoted by conservative legal actors inside and outside the Reagan Justice Department. A substantial number of the judicial opinions—including the great majority of appellate opinions—that have attacked substantive due process on these grounds have been written by appointees of that department. Greene argues, in other words, that the claim that substantive due process is an oxymoron was fostered and spread as part of a political movement. The delegitimation of decisions such as Griswold and Roe was not a byproduct of the assertion that substantive due process is an oxymoron, but rather, its purpose. Continue reading "What We Do With Substantive Due Process"
