Monthly Archives: March 2017

What Law Do Legal Theorists Need to Know?

M. Sornarajah, Resistance and Change in the International Law on Foreign Investment (Cambridge University Press, 2015).

A question seldom asked is what actual legal knowledge legal theorists require in order to theorize about law, or, indeed, what areas of law they should visit in order to confirm their theories. Without wishing to suggest there might be a mandatory list of legal subjects, or a set of legal treatises that amount to required reading, my present purpose is to draw attention to an area of law and its treatment in a recent book by M. Sornarajah that would not obviously fall within the purview of legal theorists but which offers them particularly stimulating material.

The area of law is international law on foreign investment, an area Sornarajah is well positioned to write about, being commonly regarded as one of the founding expositors of a specialist sub-discipline of international law,1 whose rapid development in recent decades is a significant manifestation of the fragmentation of international law. This area of law, whose development has centred on the place and role allowed to arbitration on international investment treaties, accordingly provides an extraordinarily accessible set of data regarding the creation, recognition, and development of law. Continue reading "What Law Do Legal Theorists Need to Know?"

The Joy of Serious Doctrinal Analysis of Disparate Treatment and Disparate Impact Discrimination

In Confusion on the Court, Professor Michael Harper discusses how in two recent cases the United States Supreme Court appeared to confuse two critically important concepts in employment discrimination law: disparate treatment (intentional discrimination) and disparate impact (unintentional discrimination). Professor Harper’s essay is worth a Jotwell jot because it rigorously analyzes a core doctrinal issue in employment discrimination law while subtly reminding readers how issue framing can drive doctrinal analysis. I am partial to Professor Harper’s approach because it is useful to four groups: judges shaping the employment discrimination field, legal scholars thinking about the field, legal practitioners working in the field, and law students just learning about the field.

The essay considers the Court’s different approaches to seemingly similar factual situations. In Young v. UPS, 135 S. Ct. 1338 (2015), the Court viewed UPS’s application of its disability policy to refuse to accommodate a worker’s pregnancy as a disparate impact issue; whereas in EEOC v. Abercrombie & Fitch, 135 S. Ct. 2028 (2015), it viewed Abercrombie & Fitch’s application of its headwear policy to decline to hire a Muslim applicant who wore a headscarf as a disparate treatment issue. As Professor Harper notes: “The Court seemed to give contradictory answers to an important, unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group, based on their protected status, to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or, in the alternative, does such an assignment have only a disparate impact on the protected group?” (P. 545.) Professor Harper describes how the Court analyzed the cases, explains how he thinks the Court misanalyzed the cases, and suggests future course corrections. Continue reading "The Joy of Serious Doctrinal Analysis of Disparate Treatment and Disparate Impact Discrimination"

Tort Theory in Copyright Law: Thinking about Patrick Goold’s Unbundling the “Tort” of Copyright Infringement

Patrick R. Goold, Unbundling the “Tort” of Copyright Infringement 102 Va. L. Rev. 1833 (2016), available at SSRN

Patrick Goold’s Unbundling the “Tort” of Copyright Infringement (“Unbundling”) is an ambitious and remarkably illuminating article. Its central thesis is that “copyright infringement” is best understood as a cover term for five different “copytorts”1 related to the plaintiff’s being a copyright owner. By way of comparison, “trespass” and “nuisance” in tort law are pleaded and articulated with different names even though they both pertain to wrongs related to a plaintiff’s ownership of realty; this is because they are, conceptually and practically, quite different wrongs. Copyright law has never separated out its five different legal wrongs, either through statute or through judicial elaboration, either formally or informally. It has used the one phrase “copyright infringement” indiscriminately for all. It turns out, Goold argues, that much of the confusion and conflict within copyright case law can be traced back to the failure to draw distinctions among the five copytorts. The task of the article is to outline the distinctions, thereby beginning the process of solving a number of doctrinal problems.

The three doctrinal problems Goold presents pertain to audience, harm, and analogy. As to “audience,” the question concerns the observer, or arbiter, or audience that courts should employ to determine whether allegedly infringing material is sufficiently similar to the copyrighted material: must it be such as to cause confusion to a reasonable person, an ordinary consumer, or an expert? As to “harm” (which arises in connection with a fair use defense) the question concerns “‘the effect of the [copyist’s] use upon the potential market for or value of the copyrighted work.’” (P. 1848 (quoting 17 U.S.C § 107 (2012)).) Courts have construed this factor to turn on “whether the copying caused the owner cognizable harm” (Id.); some courts in turn focus upon demand diversion, others on lost fees, and others on reputational, privacy, or other nonfinancial injuries. Finally, as to “analogy,” the question is how copyright infringement ought to be modeled as a legal wrong: is it like trespass, like conversion, like an economic tort or unfair competition, or like unjust enrichment? Continue reading "Tort Theory in Copyright Law: Thinking about Patrick Goold’s Unbundling the “Tort” of Copyright Infringement"

Ending the Cycle of “Ever-Changing” Wills

Alex M. Johnson, Jr., Is It Time For Irrevocable Wills?, 53 U. Louisville L. Rev. 393 (2016).

A will speaks at death. Therefore, the testator is free to change his or her will until the day he or she dies.   Giving a person the opportunity to change his or her will makes sense because testamentary dispositions are influenced by lifetime events. For example, after a will is executed, a beneficiary may die or the testator may lose ownership of some of the property mentioned in the will. Currently, persons are permitted to create irrevocable trusts. Although there is no prohibition against irrevocable wills, modern statutes do not provide for the use of such devises. Therefore, a method does not exist for a testator to make an irrevocable will. Nevertheless, in his timely and thought-provoking article, Is It Time For Irrevocable Wills?, Professor Alex M. Johnson, Jr. makes the case that the legal recognition of irrevocable wills would not negatively impact testamentary freedom. The availability of irrevocable wills may protect the testator who becomes incompetent after executing his or her will.

In attempt to support his assertion that irrevocable wills have a place in the testamentary process, Professor Johnson begins his article by briefly discussing the historical evolution of wills. During the Middle Ages, the law expressly deemed wills to be irrevocable. At that time, the property owner was permitted to use, a post obit transfer, an inter vivos conveyance, to make an irrevocable testamentary transfer of his property. The post-obit gift consisted of a contractual promise that the donor’s property would be delivered to the beneficiary after the donor died. Usually, the instrument creating the post-obit gift included a provision stating that the gift was irrevocable if the donor did not retain the right to revoke it. Once the Statute of Wills was enacted in 1540, wills were treated as if they were irrevocable. Professor Johnson asserts that no justification was given for making wills revocable instruments. He opines that lawmakers never intended to prohibit irrevocable wills. According to Professor Johnson, the issue of the irrevocability of wills was never fully discussed.   Consequently, there is no historical reason for not legally recognizing irrevocable wills. Continue reading "Ending the Cycle of “Ever-Changing” Wills"

Flirting with Federal Family Law

Courtney G. Joslin, Federalism and Family Status, 90 Indiana L. J. 787 (2015).

Should the definition of “marriage” be federal? What about the definitions of “parent” and “child”? Courtney Joslin’s carefully written article, Federalism and Family Status, traces the history of how the law has treated family status determinations and sets forth a framework, grounded in the federalism literature, on when family status should be determined on a state-by-state basis or as a federal matter.

Joslin’s article was written before two major events that have changed the family law landscape—the Supreme Court’s 2015 decision in Obergefell v. Hodges and the presidential election of 2016. In Obergefell, the Supreme Court struck down state bans on same-sex marriage, thus essentially federalizing the definition of marriage in one important respect. In the election, Donald J. Trump prevailed, and with him came fears that he will to appoint conservative justices who might overturn Obergefell. At this particular historical moment, Joslin’s article is worth rereading with an eye to applying her theory to this drastically changed landscape. Continue reading "Flirting with Federal Family Law"

The Tax Court: “Insubordinate” or “Prescient” on Auer/Seminole Rock Deference?

Steve R. Johnson, Seminole Rock in Tax Cases, Yale J. Reg. Notice & Comment (2016).

Auer/Seminole Rock or “ASR” deference is a hot topic right now in administrative law. ASR gives agencies deference when agencies interpret their own regulations, such as in litigation briefs or in guidance. If you want to know how ASR deference works in the tax context, and in particular in the Tax Court, read Steve Johnson’s work. This includes his 2013 article and his entry in the Yale Journal of Regulation’s recent online symposium on ASR deference.

The Chevron doctrine often serves as the starting point for deference to agency action. Chevron offers judicial deference to agency interpretations in final regulations and other actions with the “force of law” articulated in Mead. When the Supreme Court confirmed in its 2011 Mayo decision that Chevron applies to tax regulations, it helped to usher in a growing awareness of administrative law doctrine in tax cases. Continue reading "The Tax Court: “Insubordinate” or “Prescient” on Auer/Seminole Rock Deference?"

Land Tenure Complications and Development Challenges on Indian Reservations

Jessica A. Shoemaker, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, Mich. L. Rev. (forthcoming), available at SSRN.

This is both a good and a bad moment to be working at the intersection of property law and Indian law. Positively, there are a number of scholars exploring this intersection, showing how the rights of Indians should influence our understanding of property and how property law impacts tribes.

Professors Kristen Carpenter, Sonia Katyal, and Angela Riley have done important work on the significance of Indians’ collective rights and identity when it comes to intellectual property.1 Professor Elizabeth Kronk Warner has become her own publishing house when it comes to climate change and tribal land.2 And Professor Alex Skibine has argued that federal control over Indian land must be diminished.3 Most law students begin their study of property with Indian law,4 and several states now even include Indian law on their bar exams.5

But it is also a bad moment: many reservations continue to be mired in poverty, marked by underdevelopment that can be traced in part to problems in how reservation land is governed. The self-determination era has reached maturity, yet an “Indian problem” remains when it comes to economic growth. As popular and political awareness of the association between reservation poverty and trust land grows, tribes face the prospect that reactionary thinking will once again threaten the tribal land base.6

Jessica Shoemaker’s recent article, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, does a great job detailing and explaining the web of rules and overlapping governance structures that contribute to the underdevelopment of Indian land. Although Complexity’s Shadow draws upon property theory and the work of scholars interested in legal complexity, the real strength of the piece is just how grounded it is in reservation land restrictions. Continue reading "Land Tenure Complications and Development Challenges on Indian Reservations"

Who Should Set the Anti-Trafficking Agenda?

As immigrant communities and immigrants’ rights advocates stare down the barrel of the Trump administration, anti-trafficking appears to be the sole immigration-related issue that might gain bipartisan traction. As has historically been the case with refugees and asylum seekers, Democrats and Republicans may find common ground in concern over the situation of trafficked individuals, especially those subject to sexual trafficking. Refugee advocates and scholars have long raised concerns about the impact of collaborations with strange bedfellows on law and policy-making. Janie Chuang’s article, Giving as Governance? Philanthrocapitalism and Modern-Day Slavery Abolitionism, raises a similar set of worries around the anti-trafficking agenda, introducing a new character to the cast: the philanthrocapitalist. This piece presents a comprehensive and thoughtful set of concerns about the outsized and largely unaccountable role of a new generation of hyperengaged donors in shaping the anti-trafficking policy agenda.

In Prof. Chuang’s words, philanthrocapitalism is a “relatively new form of philanthropy, born of a new generation of the ultra-rich who aspire to use their business skills to fix the world’s social problems.” She explains that these donors play a much more direct role in shaping responses to societal issues than philanthropists in previous eras, who gave money to support third parties’ efforts to effect social change. This is a sound analysis, though it then raises the question of whether these are differences of degree or of kind. Philanthropists have always had some control over policymaking agendas through their selection of projects and varying levels of control through reporting and funding mechanisms. What is different about these new philanthrocapitalists? Continue reading "Who Should Set the Anti-Trafficking Agenda?"

The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami

Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes, 48 Akron L. Rev. 803 (2015).

The Supreme Court’s decision in Wal-Mart v. Dukes set off a groundswell of concern among many scholars, lawyers, and legal commentators about its potential impact on employees’ capacity to collectively pursue relief, particularly for systemic intentional discrimination claims. As one of those concerned parties, I enjoyed reading the five-year retrospective by Michael Selmi and Sylvia Tsakos, which seems to suggest that Wal-Mart’s impact on such claims has been more of a wave than a tsunami. Selmi and Tsakos recognize the ways in which the Court’s ruling has taken its toll, but they highlight how much Wal-Mart’s impact is a matter of degree rather than kind. Pre-Wal-Mart, the class action landscape was characterized by skepticism toward nationwide class actions, greater merits-focused class certification, and jurisdiction-dependent class treatment. Post-Wal-Mart, those trends have expanded to the detriment of civil rights claims. While this expansion is normatively problematic, this article makes an important contribution to the literature by situating Wal-Mart historically and putting it into a broader perspective. In addition, Selmi and Tsakos identify a forward trend of class certification jurisprudence involving certain kinds of subjective employment practices, which have been found to satisfy Rule 23’s commonality requirement even under current class action jurisprudence.

The authors’ sobering observation that employment discrimination class actions alleging subjective practices have been struggling, combined with their positive observation that some of these class actions remain viable post-Wal-Mart, lead the authors to conclude that Wal-Mart’s effect thus far has been modest. Continue reading "The Impact of Wal-Mart v. Dukes on Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More a Wave Than a Tsunami"

Exceptions and Baselines in American Political and Legal History

In The Great Exception: The New Deal and the Limits of American Politics, Jefferson Cowie has written a slim, brisk work of historical synthesis in which he seeks to reframe how we understand twentieth-century American political history. In this essay, I describe Cowie’s insightful and provocative revisionist account of the New Deal and its place in American history. At the end of the essay, I consider some questions the book raises for legal historians.

Cowie’s target in The Great Exception is the idea that the New Deal was a definitive turning point in American political history. Most historical accounts describe the New Deal as the period when, after decades of struggle, liberals pushed back laissez-faire ideology, installed the American version of the social welfare state, and transformed the nation’s political culture along more egalitarian and pluralistic lines. Today liberals praise the New Deal, conservatives criticize it, but all sides generally agree it marked a significant and lasting shift in the relationship between the American people and their government. Continue reading "Exceptions and Baselines in American Political and Legal History"