Monthly Archives: July 2017

The Causes of Punitiveness

Locking Up Our Own: Crime and Punishment in Black America is a look at the recent history of African-American attitudes toward crime. In many ways the book is a codicil to Michelle Alexander’s well-known work, The New Jim Crow: Mass Incarceration in the Age of the Age of Colorblindness, and to the writing of people like Glenn Loury and Ian Haney Lopez.  Alexander, Loury and Lopez argue that today’s hyper-incarceration and long sentences result from a white-dominated legal system bent on removing blacks from the streets, using the “war on drugs” as a cover, and imply that things would be different if blacks had been in control of the system. Locking Up Our Own contests those views.

Making Forman’s case is difficult, because largely white legislatures were and still are in charge of criminal justice in most jurisdictions. But Forman’s focus is on Washington, D.C., where, from the mid-1970s through the end of the twentieth century (the period covered by the first five chapters in his book) African-Americans were in power. Not only were that city’s chiefs of police black (as was the case in many major cities), but the municipal council—the body effectively in charge of crime definition and sentencing in D.C., given Congress’ acquiescence in matters of criminal justice—was usually majority African-American as well. Yet the criminal justice policies in that city were at least as punitive as those in other jurisdictions. Continue reading "The Causes of Punitiveness"

Looking For Competencies in all of the Right Places

Neil W. Hamilton & Jerome M. Organ, Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop an Integrated Professional Identity (Professional Formation), 83 Tenn. L. Rev. 843 (2016), available at SSRN.

Few people would say that U.S. legal education is doing an absolutely perfect job. While there have been a number of different criticisms and reform proposals over the past thirty years, some common themes have emerged. One theme is that students are not equipped with the range of skills they need to help clients address multi-faceted issues in an interdisciplinary world.  Additional themes are found in the influential 2007 Carnegie Foundation report. Summarizing this report, one coauthor explained that legal education has generally done a good job with respect to the “first apprenticeship,” which is the “cognitive apprenticeship” of teaching students to think like a lawyer; that legal education has made modest improvements with respect to the “second apprenticeship” which involves skills and practice; and that legal education has done a poor job with respect to the “third apprenticeship,” which involves professional identity and values.

One recent article that addresses these legal education gaps is Neil Hamilton and Jerry Organ’s “Thirty Reflection Questions” article. Thirty Reflection Questions begins by discussing the concept of “learning outcomes,” including learning outcomes related to professional identity and values. This article cites the definition of learning outcomes found in a 2015 ABA accreditation Guidance Memo: “Learning outcomes must consist of clear and concise statements of knowledge that students are expected to acquire, skills students are expected to develop, and values that they are expected to understand and integrate into their professional lives.” For those who have not paid particularly close attention to the ABA Council’s relatively new Standard 302, the interpretative Guidance Memo, or the related literature, Part I of the article provides a very useful overview of the learning outcomes accreditation requirement and the rationale that lies behind it. Part II discusses how a law school curriculum can be designed in order to foster learning outcomes related to professional identity, taking into account research from other fields and data about law student development.1 Finally, Part III contains the thirty reflection questions referenced in the article’s title. This Part explains how a law school or faculty member can use the thirty questions to help law students obtain meaningful post-graduation employment, acquire the competencies that legal employers and clients want, and develop their professional identity.

I particularly like Part III because of the way that it links the topics of post- graduation employment, the “competencies” that legal employers want their new hires to possess, and professional identity formation. Part III explains how a law school or professor can use a law student’s interest in the first topic – his or her own employment outcome – as a way to foster development with respect to the other two outcomes. The authors explain that the breakthrough in their own thinking was when they decided to go where the students are and to recognize that virtually all students want post-graduation employment that is meaningful to them given their life experiences, talents and passions. (P. 876.) The reflection questions provide an “enlightened self-interest” entry point for students to proactively develop the competencies they need to serve clients and the legal system well and to develop their professional identity and a commitment to the legal system. Continue reading "Looking For Competencies in all of the Right Places"

Digital Regulation and Digital Markets

Rory Van Loo, Rise of the Digital Regulator, 66 Duke L. J. 1267 (2017), available at SSRN.

Consumers and corporations today exist in a world of highly intermediated markets. Digital intermediaries aid consumers in their decisions with more and more regularity. They sort the good from the bad, the expensive from the inexpensive, the suitable from the inappropriate. Private and public digital intermediaries collectively act as a soft regulatory force in the marketplace. Private intermediaries like Amazon, AirBnB, Priceline, Carfax, Google, Houzz, and Zillow help consumers make purchasing decisions on goods and services like diapers, automobiles, airline tickets, hotel rooms, summer vacations, car rentals, furniture, apartments, and almost everything under the sun.  Public intermediaries like the Consumer Financial Protection Bureau and the Affordable Care Act via their mortgage calculator and insurance exchanges, respectively, assist consumers make key life decisions about buying a home and purchasing health insurance. All of these innovative tools, made possible by technologically-driven intermediation, are generally designed to lead to better, more informed decisions in the absence of heavy-handed government regulation – but do they? How do we better ensure that such innovative, digital intermediaries work in the best interests of consumers? How should we think about law and regulation in the marketplace given the rise of these digital intermediaries?

In his recent article, Rise of the Digital Regulator, Professor Rory Van Loo explores these and other questions concerning digital intermediaries. These questions will likely be some of the most vexing and consequential ones for corporations, law, and society in the near future as many of the most valuable and disruptive businesses today are in the business of serving as digital intermediaries for consumers. Professor Van Loo’s article has two core motivations: (1) it highlights the under-appreciated shortcomings and challenges posed by digital intermediaries; and (2) it offers early sketches of potential legal reforms to better address the rise of digital intermediaries. Continue reading "Digital Regulation and Digital Markets"

Law in the Cultivation of Responsibility and Trust

Seana Shiffrin, Enhancing Moral Relationships through Strict Liability, 66 U. Toronto L.J. 353 (2016).

Consider the following everyday scenario as a simplified version of complex contracting. Having been invited to a dinner party a guest asked the host what to bring. “A dessert would be nice,” replied the host, to which the guest responded: “consider it done!” On the morning of the party the guest purchased a delicious cake from a celebrated bakery and was ready to make good on the promise. Sadly, in the evening, as the guest got the cake out of the fridge, it was covered with odd green spots and seemed inedible. Clearly, the guest is at no fault for what just happened, but what should the guest do next: Get another dessert on the way to the party or just go empty-handed? Seana Shiffrin’s thought-provoking article Enhancing Moral Relationships through Strict Liability describes and answers this dilemma as it manifests itself in the domain of contracts’ performance (fault is irrelevant and thus the guest should get another dessert before heading to the party!) — but it goes further and also compellingly explains why demanding full performance of contracts, irrespective of fault, is the appropriate legal approach, both morally and legally.

The article offers a defense of the performance phase of the contractual strict liability doctrine from a novel perspective. The doctrine sets a default rule: unless otherwise agreed between the maker of a promise (promisor) and its recipient (promisee), the promisor is the one who is responsible for full performance, even if reasons outside of his or her control make the task arduous. The “strictness” of the promisor’s duty to perform is restrained only by the doctrine of impracticality that may release the promisor from the burden of performance but merely in extreme and rare cases. Continue reading "Law in the Cultivation of Responsibility and Trust"

Does the Constitution Require Due Process Abroad?

Nathan S. Chapman, Due Process Abroad, U. of Ga. Legal Stud. Research Paper No. 2017-07 (2017), available at SSRN.

Do the rights protected by the Constitution constrain United States government actions outside our borders, especially those directed at noncitizens? The longstanding debate over this question has heated up again in recent years. It is one of the issues raised by the litigation over Donald Trump’s travel ban executive order. It is also a key element of Hernandez v. Mesa, a case recently addressed by the Supreme Court that raises the question of whether the Fourth Amendment applies to a case where U.S. Border Patrol agents fatally shot a 15-year-old Mexican boy just across the border.1

Nathan Chapman’s important new article on the application of the Due Process Clause of the Fifth Amendment abroad, is a timely and important contribution to this debate. It compiles extensive evidence indicating that the Clause was originally understood to constrain U.S. government actions outside our territory, regardless of whether the targets are American citizens or not. If so, it may be that other constitutional rights also apply in such situations. Continue reading "Does the Constitution Require Due Process Abroad?"

The Age of Imperial Governorship?

Miriam Seifter, Gubernatorial Administration, 131 Harv. L. Rev. (forthcoming, 2017), available at SSRN.

The idea that state constitutions might provide terrain for comparative analysis that could shed new and important light on the federal Constitution is hardly a new one. But for those of us preoccupied with the study of Article II presidential power, it is hard to imagine a much more powerful illustration of that lesson than Miriam Seifter’s fruitful and creative study of what she calls “the modern regime of gubernatorial administration.”

Seifter demonstrates that, state variations notwithstanding, contemporary governors frequently enjoy an array of tools to direct administrative governance that, in important respects, presidents would envy. These include reorganization authority, the power to privatize government functions, and greater authority to influence independent state agencies than the President would have over federal counterparts. Governors typically have a more firmly grounded directive power over the policy content of administrative decision making. Moreover, because of overlap in the domains of state and federal regulatory concern, these authorities effectively give governors power to significantly “resist or advance key federal government programs.” (P. 19.) Continue reading "The Age of Imperial Governorship?"

Timekeeping and Wage Theft in the 21st Century

Elizabeth Tippett, Charlotte S. Alexander & Zev J. Eigen, When Timekeeping Software Undermines Compliance, 19 Yale J.L. & Tech. 1 (2017).

Nearly sixty percent of American workers are paid on an hourly basis. Despite this reality, wage and hour law typically generates little attention in academic literature. While there has been considerable discussion about “the gig economy” and independent contractors, the nuts and bolts concerning how most Americans get paid goes largely unaddressed in legal scholarship. For this reason alone, a new article by Elizabeth Tippett (Oregon), Charlotte S. Alexander (Georgia State), and Zev J. Eigen (Littler Mendelson) represents a welcome addition to the literature.

The article focuses on workplace timekeeping software and the ways in which employers can use such software to commit wage theft. The authors review the functionality of thirteen different timekeeping software programs and explore how such software can be used by supervisors to effectively cheat employees out of wages for hours worked. Without going into great detail here, these programs vary considerably in their structure. Several of the programs allow – and in some cases, tacitly encourage – supervisors to review an employee’s submissions and then edit those submissions without providing any sort of notification to employees. The authors postulate that these types of programs pose the greatest risk of wage theft. Programs that afford supervisors less discretion present less risk. Continue reading "Timekeeping and Wage Theft in the 21st Century"

Can You Really Have Your Cake and Eat it Too?

Self-settled domestic asset protection trusts (DAPTs) are trusts that permit a settlor to use a spendthrift provision in a trust where he is also a beneficiary to protect his assets from creditor claims. DAPTs evolved from offshore asset protection trusts which historically allowed self-settled asset protection trusts. Today, a majority of states within the US do not permit a settlor to create such a trust. DAPTs defy logic in that a person should not be able to place their assets in trusts, benefit from the trust, and then not have those funds available to pay to their debts. Yet, these trusts continue to gain popularity in the United States. A number of jurisdictions have enacted laws that permit self-settled DAPTs. Alaska was the first state in the U.S. to adopt DAPT law, and fifteen states, including South Dakota, the subject of this article, followed.

Since these trusts are relatively new, there are still questions regarding when or whether assets are protected from creditor claims and which transfer taxes are applicable. The answers to these question are found in the statutory provisions. In analyzing the DAPT, determining the level of control the settlor has retained in the trust is the key. In their article, Mark Krogstad and Matthew Van Heuvelen explore the estate and gift tax implication of South Dakota’s DAPT laws.  This interesting article provides practical information for practitioners, scholars and professors who, draft, study and/or teach DAPT laws from any state. Continue reading "Can You Really Have Your Cake and Eat it Too?"

How Much is Your Injury Worth? First Tell Me Your Race and Gender

Ronen Avraham and Kimberly Yuracko, Torts and Discrimination, Law and Economic Research Paper No. E570 (2017), available at SSRN.

When plaintiffs suffer actionable injury, courts in the United States attempt to repair the harm by awarding compensatory damages that put victims in the position they would have been in but for the wrongs that they have suffered. Courts calculate an individualized measure of compensatory damages for each plaintiff. The damage measure not only includes plaintiff’s actual past expenses, but also, a plaintiff’s lost earning capacity, future pain and suffering, and future medical costs.  As a starting point for juries’ projections, courts allow forensic economists to introduce three types of government-generated statistical tables—life expectancy tables, work-life expectancy tables and average-wage tables. (P. 17.) All of these tables come in blended and non-blended versions. The non-blended editions disaggregate data by race and gender. For example, a non-blended table might tell you that a “white” girl born in 2014 has a life expectancy of 81.2 years, while a “black or African American” boy has an expectancy of only 72.5 years.1 Similarly, a non-blended table might suggest that a 16-year old white male has a longer work-life expectancy than a black female. (P. 26.)

Courts frequently, perhaps “routinely,” permit the use of non-blended statistical tables as a foundation for damage awards in tort and other claims, including even Title VII discrimination cases. (Pp. 15, 59.) Furthermore, as Avraham and Yuracko document, legislatures have also adopted statutes or pattern jury instructions which permit gender-based, and sometimes race-based calculations. (P. 16.) Continue reading "How Much is Your Injury Worth? First Tell Me Your Race and Gender"

What’s Up: BEPS and the New International Tax Order

Allison Christians, BEPS and the New International Tax Order, 6 BYU L. Rev. (forthcoming, 2017), available at SSRN.

It’s easy to underestimate the value of a good “what’s up” article. If you’ve been doing that, then you should take a look at “BEPS and the New International Tax Order” for a reminder of their value.

“What’s up” articles are the salve of the academy. They take a rapidly changing field of inquiry or policy space or legal doctrine and they encapsulate the state of play in a way that brings out and makes assessable the highlights.

This line of scholarly work is helpful to folks who have drifted from the area of inquiry and to those who are deeply lost in its weeds. Good what’s up scholarship should be evaluated on three criteria: (1) does the article provide an orienting matrix to the work in the particular area; (2) does it appropriately highlight the aspects of that rapidly changing area in ways that emphasizes what matters and de-emphasizes or ignores matters of little importance (put another way, does it respect the fact that not all developments are of equal importance); and (3) is it a pleasure to read. Continue reading "What’s Up: BEPS and the New International Tax Order"