Yearly Archives: 2017
Jul 11, 2017 Peter ShaneAdministrative Law
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?"
Jul 10, 2017 Alex B. LongWork Law
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"
Jul 7, 2017 Phyllis C. TaiteTrusts & Estates
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?"
Jul 6, 2017 Ellen BublickTorts
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. 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"
Jul 5, 2017 Kim BrooksTax Law
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"
Jul 4, 2017 Sjef Van ErpProperty
When comparing common law and civil law in the area of property, the trust is always presented as a legal institution of ownership typical for the common law and absent in the civil law. The trust, then, represents one of the major differences between these two legal traditions. While such a formal differentiation might be justifiable, the civil law indeed, like the common law, often generates institutions with some of the attributes of the common law trust but with varying characterizations of interest.
Alexandra Popovici’s article discusses the unique characteristics of instruments with trust-like qualities in civil systems, and she reveals the drafting history around the Québec Civil Code treatment of the issue. Continue reading "Trusts as Ownerless Property"
Jul 3, 2017 Juliet StumpfLexImmigration
Jennifer M. Chacón,
Producing Liminal Legality, 92
Denver U. L. Rev. (forthcoming), available at
SSRN.
Jennifer Chacon’s Producing Liminal Legality is a must read, and not only because the title so aptly reflects the liminality of the article itself. The work is betwixt and between criminal and immigration law, between formal and functional analysis, pointing back in history and forward towards social change. It appears in a symposium issue, itself a liminal form of academic discourse, suspended between the immediacy of the academic blog post and the timeless stand-alone academic article. In light of the seemingly permanent status of liminal legality, this article promises to be both hot and timeless, with an illumination in every section.
Chacón draws from the cresting edge of the social science around liminal legal subjects, using it to uncover and critique the legal mechanisms that produce liminal legality. She describes the liminal legal statuses that are proliferating within immigration law and beyond it. Liminal legal categories function in two ways: “to effectuate administrative resource conservation through community-oriented risk management strategies” and to allow governmental actors to assert control over identified populations in ways that avoid the rights-protective schemes of the twentieth century. Continue reading "Living in Liminal Legality"
Jun 29, 2017 Serena MayeriLegal History
Law is simultaneously at the center and the periphery of Premilla Nadasen’s engaging study of the domestic workers’ movement of the 1960s and 1970s. The absence of regulation made the household a largely lawless space in which the shadow of the law—and of the civil rights movement—nevertheless loomed large. Though not primarily a legal history, Household Workers Unite highlights how the law’s limitations can foster collective action in sometimes surprising ways. Beyond the reach of New Deal legislation and of labor and employment regulation generally, the African American women who dominated the ranks of household laborers for much of the twentieth century campaigned not only for legal rights but for material and dignitary benefits beyond the law, pioneering new organizing strategies that paved the way for the twenty-first century labor movement.
The power of storytelling is central both to Nadasen’s book and to the legal and extralegal activism of the women she profiles therein. In spare, accessible prose, Nadasen introduces little-known characters who made history: Dorothy Bolden, a civil rights and economic justice activist who used city bus lines as an organizing site; Geraldine Roberts of Cleveland, Ohio, whose functional illiteracy did not stop her from launching one of the first domestic workers’ organizations; Josephine Hulett, a household worker in Youngstown, Ohio who mediated between local workers’ rights groups and the National Committee on Household Employment (NCHE); Edith Barksdale Sloan, the granddaughter of a domestic workers who became a lawyer and activist who facilitated the formation of the first national organization of household workers; Carolyn Reed, who used money earned from her household labor to gain financial and emotional independence from a loveless adoptive family and later became a national organizer and head of the NCHE. Better-known figures such as civil rights icon Rosa Parks, Women’s Bureau head Esther Peterson, National Council for Negro Women leader Dorothy Height, and Representative Shirley Chisholm also make appearances, but it is household workers themselves whose stories rightfully dominate this thoughtful, often riveting narrative. Continue reading "The Lawless Workplace"
Jun 28, 2017 Dennis PattersonJurisprudence
Every once in a while a book comes along that completely changes the way scholars think about their field. In the realm of what is referred to as “Action Theory,” Elizabeth Anscombe’s Intention was such a book. Together with Ludwig Wittgenstein and Gilbert Ryle, Elizabeth Anscombe pioneered a revolution in philosophical thought that replaced the Cartesian paradigm of inner reflection with an emphasis on thought and meaning grounded in intersubjective practices and public criteria of meaning.
John Hyman works in the tradition of analytic philosophy of mind just described. His previous work has been in aesthetics (he is Professor of Aesthetics at Oxford) but, over the years, he has developed a position in action theory that is informed by the work of philosophers in the tradition mentioned above. In the book under review, Hyman works through the work of the philosophers just mentioned and advances a new way of thinking about human agency. His book should be of special interest to lawyers as it contains illuminating discussions of many topics found in law (e.g., will, action, act and knowledge). Continue reading "Law and Theory of Human Action"
Jun 27, 2017 Sam F. HalabiInternational & Comparative Law
Intellectual property disputes implicating diverse and seemingly unrelated international legal regimes have become more frequent, acrimonious, and high-stakes. This trend has spawned an enormous academic literature endeavoring to rationalize the approach various interpretive authorities take to intellectual property disputes. Graeme Austin and Larry Helfer’s Human Rights and Intellectual Property offered a framework by which to resolve claims for or against intellectual property protection based on human rights arguments; Susy Frankel has extensively assessed the application of customary international rules of interpretation in furtherance of a rationalizing approach to complex IP conflicts; and Jerry Reichman, Paul Uhlir, and Tom Dedeurwaerdere have developed comprehensive approaches to questions arising at the intersection of international research efforts and potential IP-related obstacles. Edited volumes by Margo Bagley and Ruth Okediji, Carlos Correa and Xuan Li, Daniel Gervais, Shubha Ghosh and Robin Paul Malloy, Christopher May and Susan Sell, and Peter Yu similarly provide useful and targeted analyses of discrete IP-areas (e.g. patent and copyright) to particular contexts (e.g. development, disability, and innovation). The aforementioned works are by no means exhaustive but it is fair to say that none attempts to undertake the quite complex, more comprehensive question of intellectual property law as a fragmented part of the broader international legal order.
Enter Henning Grosse Ruse-Khan’s The Protection of Intellectual Property in International Law. Ruse-Khan, University Lecturer and Fellow at King’s College, Cambridge applies the broader theoretical elaboration of international law’s fragmentation to intellectual property disputes so as to provide a more comprehensive approach to issues raised by intellectual property’s overlap with discordant international legal regimes other scholars have tackled through narrower lenses. (P. 4.) This book is one I like a lot, and I hope others active in the study and shaping of international intellectual property law do as well. Intellectual property, Ruse-Khan reminds us, was a forerunner of the kind of fragmentation more systematically analyzed by the International Law Commission after 2006: “IP is . . . addressed, from diverse perspectives, in the United Nations Organization for Education, Science and Culture and the Food and Agriculture Organization of the United Nations as well as in the context of the Convention on Biological Diversity and the World Health Organization” even before trade and investment started playing their inevitably influential role. (P. 8.) Continue reading "Developing a Matrix for Intellectual Property as Subject of International Law"
