Monthly Archives: December 2017

Protective Legislation and Its Critics: an Enduring Legacy

While some readers may already know this work, legal academics do not always keep up with monographs that focus on history. So, I will try to widen the audience for this excellent book.

A Class by Herself traces the story of “protective legislation” — e.g., laws regulating wages and hours — concentrating on debates over statutes that applied only to women. The story begins in the Progressive Era of the late nineteenth and early twentieth centuries, continues through the New Deal, and ends with questions about modern laws such as the Pregnancy Discrimination Act and Title VII. The book does an impressive job with multiple historical subjects: legal history, history of “worklaw,” history of feminist thought, and history of politics and of the state. Continue reading "Protective Legislation and Its Critics: an Enduring Legacy"

Strict Compliance and Wills Act Formalities

In the law of Wills, the testator’s intent is of upmost importance. If there is clear and convincing evidence of a testator’s intent, then a document intended to be his or her will should be probated, right? Not so fast—according to Professor John Langbein, in a jurisdiction that has adopted the strict compliance approach to Wills Act formalities a document will not constitute a validly executed will if all of the statutory requirements are not met, even when evidence shows that the testator intended the document to be his or her will. Langbein penned substantial compliance and harmless error proposals as alternatives to strict compliance. In Wills Act Compliance and the Harmless Error Approach: Flawed Narrative Equals Flawed Analysis?, Professor Peter T. Wendel asserts that Professor Langbein has not framed the narrative correctly and therefore the analysis of the issue is flawed. He rephrases the narrative so that the debate can continue in a less simplistic manner.

Wendel asserts that Langbein incorrectly painted a picture of strict compliance as a rigid villain that invalidates wills when there is not 100 percent compliance with Wills Act formalities. In his articles, Langbein uses conclusory language and assumes that the reader already agrees with him. Then, in each article, Langbein’s proposal is pitched as the solution to the injustice of the strict compliance approach. Professor Langbein first proposed a substantial compliance doctrine, and a decade later proposed a more lenient harmless error doctrine outlining when courts should probate documents that do not meet the requirements of the Wills Act. Although Langbein’s harmless error proposal has been adopted as part of the Uniform Probate Code and Restatement (third) of Property, most states have not adopted such proposal. Continue reading "Strict Compliance and Wills Act Formalities"

The Paranoid “Fringe” in American Politics 

Rick Perlstein, I Thought I Understood the American Right. Trump Proved Me Wrong, N. Y. Times Magazine, (April 11, 2017).

The article that made me think hardest about American constitutional law this year was not a work of legal scholarship. It was historian Rick Perlstein’s meditation on the making of modern American conservatism.

Perlstein begins his article by describing the “rough consensus” among historians about how the right became the dominant political force in American politics in the second half of the twentieth century. The story starts in 1955, when William F. Buckley Jr. founded the National Review to combat the decades-long marginalization of political conservatism. Buckley banished John Birchers, anti-Semites, and fanatical Ayn Randians and “fused the diverse schools of conservative thinking—traditionalist philosophers, militant anti-Communists, libertarian economists—into a coherent ideology.” Fueled by support from white suburban voters, the new political conservatives thrived. Crucial to their success—or so the story goes—was their denouncement of the “political surrealism of the paranoid fringe.” Particularly in the South, new movement conservatives sublimated the “frenetic, violent anxieties” aroused by race, and spoke instead of “stable housing values,” “quality local education,” and “colorblind constitutionalism.” Simply put, modern conservatism became a dominant force by eschewing what Richard Hofstadter called “the paranoid style in American politics.” Continue reading "The Paranoid “Fringe” in American Politics "

 Who Gets Taxed When a US Corporation Pays Dividends?

Steven M. Rosenthal and Lydia S. Austin, The Dwindling Taxable Share Of U.S. Corporate Stock, Tax Notes 923 (May 16, 2016).

The Dwindling Taxable Share Of U.S. Corporate Stock, written by Steven M. Rosenthal and Lydia S. Austin, analyzes the available data regarding the ownership of corporate stock in the United States. Over the history of the income tax, most business capital has been invested in corporations, so an assumption that the income taxation of business meant income taxation of corporations was a reasonable assumption. Similarly, most owners of domestic capital were assumed to be taxable individuals.

One could, therefore, use as a starting point for any reform proposal, the idea that a corporation would be taxed at the stated corporate rates and would make distributions of earnings to individuals who would be taxed at the stated individual rates. Rationalization of business taxation has often aimed at eliminating the incentive to engage in business investment other than through corporate entities. This rationalization (or “integration”) using these standard assumptions about the nature of corporate holdings, involves pushing the corporate tax out to shareholders (by effectively reducing rates when corporate income is distributed), or pushing the individual tax into corporations (by effectively reducing the rate on dividends received). Continue reading " Who Gets Taxed When a US Corporation Pays Dividends?"

Equalizing Exactions

Gregory M. Stein, Reverse Exactions, 26 Wm. & Mary Bill Rts. J. (forthcoming 2017), available at SSRN.

Some exactions1 are just bad. By this, I mean that they fail to mitigate the harms they were created to internalize. This struck me recently while I was researching privately owned public open spaces (POPOS), which are often exacted in exchange for a density bonus. Through my research, I determined that POPOS often fail to achieve the goals of good public space, in part because they are often exclusionary. I found myself wondering whether the citizens who were stuck with new dense buildings that block light and air, and who received only a poorly functioning POPOS in exchange, had any legal recourse.

My question, in effect, was whether a neighbor could bring an exactions claim in reverse. I was pleasantly surprised to find that Professor Gregory M. Stein had interrogated this very question in his recent article Reverse Exactions. Continue reading "Equalizing Exactions"

Questioning Trade Secret Privileges in Criminal Cases

Rebecca Wexler, Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System, 70 Stan. L. Rev. (forthcoming 2018), available at SSRN.

How pervasive are software-based information technologies in the criminal justice system these days? And what role does trade secrecy law play in blocking defendants’ access to technical information about the design of these technologies from which to assess their objectivity and accuracy?

The short answer to both questions is much more than you may have expected, as you will learn when you read Wexler’s fascinating and powerful new article on intellectual property in the criminal justice system. Among other things, the article shows just how ubiquitous these technologies have become in virtually every stage of the criminal justice system: from police investigations to risk assessment for bail setting to evidence prepared for or presented at trial to sentencing and parole decisions. When defense lawyers raise questions about the accuracy of the outputs of these technologies and seek access to source code or other technical documentation, courts have been quite receptive to arguments that non-disclosure is justified because the information is a trade secret. Wexler’s thesis is that there should be no trade secrecy privilege in criminal cases. Period. Protective orders can adequately protect any trade secrets implicated by a criminal defense discovery request. Continue reading "Questioning Trade Secret Privileges in Criminal Cases"