Yearly Archives: 2017
May 16, 2017 Anne Joseph O'ConnellAdministrative Law
The younger generation of administrative law scholars is frighteningly good. They provide helpful motivation to step up one’s own game but also opportunities to marvel in the work they are doing. One of my favorite scholars to read is Eloise Pasachoff. (A note: we are not friends. I think I have met her briefly in person only once.) Her latest insightful article examines the president’s power of the purse.
Pasachoff focuses on the Office of Management and Budget’s (OMB) role in the agency budget process. Specifically, she describes seven levers of OMB control, finds the process lacking on certain normative criteria, and then proposes reforms to the political branches and the administrative state to improve accountability. If OMB’s regulatory review worries you, Pasachoff has bad news, arguing that OMB’s budget role is more problematic. Continue reading "The President’s Power of the Purse"
May 15, 2017 Kerri Lynn StoneWork Law
This article, by Professor Wendy N. Hess, picks up on an important issue, largely ignored in the legal literature until now: so-called “slut-shaming” in the workplace. “Slut-shaming” involves denigrating a person – most often a woman – on the basis of her actual or perceived sexual activity. It reportedly takes place quite a bit in the workplace, and usually with deleterious effects on victims’ reputations, work product, and career trajectories. This article thus picks up on a salient issue in the contemporary American workplace and provides an excellent exposition of a split among courts that reveals the unwillingness of some judges to acknowledge the empirical truth that men who are perceived as promiscuous are often seen as “studs,” while women so perceived are seen as “sluts,” and subsequently downgraded in the esteem of co-workers and employers. Once so thoroughly presented, this collision between this double standard and the antidiscrimination mandate of Title VII crystallizes and cannot be ignored.
The article critiques the ways in which courts have dealt with hostile work environment sexual harassment claims stemming from rumors and/or attacks premised on the plaintiff’s perceived sexual promiscuity. The article expertly lays out courts’ historic confusion as to when alleged harassment has occurred “because of” the victim’s sex, as required by Title VII, and makes the compelling point that “Courts have often failed to recognize the gendered aspect of sexual rumors about women.” It boils down to the fact that, as Professor Hess contends, in many situations, due to the so-called “double bind” or “double standard,” seemingly similarly situated men and women could not, in reality, be any more differently situated. And when it comes to “slut-shaming,” Professor Hess could not have found more fertile ground upon which to make her point. She thus exhorts courts to identify the double standard that makes rumors about a female employee’s sexual promiscuity “uniquely insulting to women.” Continue reading "(Un)Equal Opportunity Shaming"
May 12, 2017 Mark GeistfeldTorts
Alex Stein,
The Domain of Torts, 117
Colum. L. Rev. 535 (forthcoming 2017), available at
SSRN.
Scholars seeking to interpret the common law of torts typically take a position on the merits of fairness or rights-based rationales for liability as contrasted to welfarist or efficiency-based rationales. Rejecting this fairness versus efficiency framework, Alex Stein defends an original thesis in his forthcoming article, The Domain of Torts: fair tort rules do not contradict or stand in tension with efficient tort rules; each type of rule instead “implement[s] different regulatory mechanisms—private and public—and appl[ies] to different kinds of accidents.” (P. 541.) Tort law is comprised of both fair and efficient tort rules that govern different domains, eliminating any conflict between them. Although I’m not persuaded, Stein’s article requires one to consider important issues from a fresh perspective and deserves to be widely read.
After arguing that the domain of tort law is distinctively defined by the problem of accidents caused by unwanted interactions, a position staked out long ago by Oliver Wendell Holmes, Stein then makes the more interesting claim that tort law further distinguishes between two types of accidents—those caused by the risky actor’s pursuit of only private benefits, and the remaining accidents caused by risky behavior that benefits the public. “Private benefits are ones that improve the well-being of a single person: the actor (and her private beneficiaries, such as family and friends). Public benefits, on the other hand, improve the welfare of society in general (while also generating private gains for their producers).” (P. 552.) These definitions are not standard within tort law nor otherwise elaborated upon by Stein, yet he argues that they largely determine the substantive content of liability rules. Continue reading "A Benefit Theory of Tort Law"
May 11, 2017 Rebecca RoipheLegal Profession
Brad Wendel,
Government Lawyers in the Trump Administration,
Cornell Legal Studies Research Paper No. 17-04 (2017), available at
SSRN.
In 1973, in what has come to be known as the Saturday Night Massacre, Richard Nixon attempted to fire special prosecutor Archibald Cox, prompting his own Attorney General to resign. In the wake of the Watergate scandal, the bar recoiled in shock as it acknowledged the number of lawyers complicit in illegal conduct. In this timely new article, Brad Wendel explores the obligations of government attorneys in an administration that has shown an unsettlingly similar disregard for legal limitations on its power.
It’s hard to keep up with the Trump administration’s distaste for dissent. Trump fired acting Attorney General Sally Yates when she refused to enforce his travel bans on individuals with visas from seven predominantly Muslim countries. White House Press Secretary Sean Spicer issued an ultimatum to state department civil servants, warning them to “get with the program,” and Senior White House Policy Adviser Steven Miller insisted that Trump’s national security decisions “will not be questioned.” Frustrated with the Washington Post’s coverage during the presidential campaign, Trump threatened to retaliate against owner Jeff Bezos by investigating Amazon for antitrust and tax violations. He responded to Judge Gonzalo Curiel’s unwillingness to dismiss a fraud suit against Trump University by insisting that the judge was biased because of his Mexican heritage. More recently, in a rage against the court that blocked his travel ban, President Trump tweeted an attack on the “so-called judge.” He vowed to use “enhanced interrogation techniques” and to throw flag burners in jail, with either ignorance or little regard for the fact that both have been determined to be illegal. Even Saturday Night Live spoofs prompt the President to engage in a barrage of social media insults. Continue reading "Can Government Lawyers Be Heroes? "
May 10, 2017 Lisa Larrimore OuelletteIntellectual Property Law
Heidi L. Williams,
How Do Patents Affect Research Investments?,
Ann. Rev. Econ. (forthcoming), available at
NBER.
As everyone who has taken a patent law course knows, the reason we have patents is to increase private incentives for knowledge production. But do patents actually work? Based on her review of the existing evidence, MIT economist (and MacArthur “genius”) Heidi Williams isn’t sure; she concludes that “we still have essentially no credible empirical evidence on the seemingly simple question of whether stronger patent rights—either longer patent terms or broader patent rights—encourage research investments.”
This bottom line will not be a surprise to those who have followed the empirical literature, but Williams’s careful identification and modeling of the relevant empirical parameters and her discussion of the most relevant evidence on each point makes her review a must-read for anyone interested in patent policy. Continue reading "Do Patents Work?"
May 9, 2017 Jonathan SimonCriminal Law
In Two Cultures of Punishment, Professor Kleinfeld wades into one of the most debated subjects in criminal law and punishment and society: why have Europe and the United States–which began with so many similar penal values and practices at the end of the 18th century–begin the 21st century with such a wide divergence, especially when it comes to extreme punishments like Life Without Parole, capital punishment, and internal banishment through collateral consequences. This is territory in which some of the great scholars of punishment in our time, philosophers, historians, and sociologists have already spilled a lot of ink. To simplify somewhat, accounts tend to emphasize either culture embedded in history (James Whitman and Jeremy Waldron), political development rooted in institutions (David Garland and Nicola Lacey), or political economy (Loic Wacquant).
As an account of comparative European and US penal evolution, Kleinfeld has produced a productive original synthesis which combines many of the best features of historical, philosophical and political-institutional accounts. This synthesis, which has its deepest inspiration in the late 19th century theories of proto-sociologist Emile Durkheim, suggests that the US always had a different set of normative values rooted in its distinctive political economy. These differences, however, relatively latent in their effects on institutions until the “treatment effect” of rapidly rising violent crime rates in the 1960s–which remained high for much of the rest of the century–unlocked their potential to drive dramatic institutional change. (See Lisa Miller’s recent monograph, The Myth of Mob Rule (2016), which also treats rising violent crime rates as a significant driver of US penality in the late 20th century.) It has its weaknesses, one of which I will return to, but seen as a theory of late modern punishment and society trajectories it’s a major contribution which compels us to consider normative as well as social control explanations for extreme US penal practices. Continue reading "The Sources of American Punitiveness"
May 9, 2017 Jonathan SimonCriminal Law
In Two Cultures of Punishment, Professor Kleinfeld wades into one of the most debated subjects in criminal law and punishment and society: why have Europe and the United States–which began with so many similar penal values and practices at the end of the 18th century–begin the 21st century with such a wide divergence, especially when it comes to extreme punishments like Life Without Parole, capital punishment, and internal banishment through collateral consequences. This is territory in which some of the great scholars of punishment in our time, philosophers, historians, and sociologists have already spilled a lot of ink. To simplify somewhat, accounts tend to emphasize either culture embedded in history (James Whitman and Jeremy Waldron), political development rooted in institutions (David Garland and Nicola Lacey), or political economy (Loic Wacquant).
As an account of comparative European and US penal evolution, Kleinfeld has produced a productive original synthesis which combines many of the best features of historical, philosophical and political-institutional accounts. This synthesis, which has its deepest inspiration in the late 19th century theories of proto-sociologist Emile Durkheim, suggests that the US always had a different set of normative values rooted in its distinctive political economy. These differences, however, relatively latent in their effects on institutions until the “treatment effect” of rapidly rising violent crime rates in the 1960s–which remained high for much of the rest of the century–unlocked their potential to drive dramatic institutional change. (See Lisa Miller’s recent monograph, The Myth of Mob Rule (2016), which also treats rising violent crime rates as a significant driver of US penality in the late 20th century.) It has its weaknesses, one of which I will return to, but seen as a theory of late modern punishment and society trajectories it’s a major contribution which compels us to consider normative as well as social control explanations for extreme US penal practices. Continue reading "The Sources of American Punitiveness"
May 8, 2017 Lumen N. MulliganCourts Law
Although state courts handle roughly ninety-five percent of all civil cases, federal procedural law dominates reform initiatives, academic discussions, and legislative attention. In line with this federal focus, there continues to be a push for state court systems to conform their civil procedural rules to the most recent amended version of the Federal Rules of Civil Procedure. In their new article, Stephen Subrin and Thomas Main reject this unreflective state emulation of federal procedure.
Subrin and Main begin by demonstrating that the original promise that the Federal Rules would lead to universal uniformity has not been met. They track this lack of uniformity across four dimensions. Continue reading "But the Feds Do It That Way!"
May 5, 2017 Gerry W. BeyerTrusts & Estates
The idea of the “traditional family unit” is changing at a rapid pace that requires the law to adapt to effectuate a testator’s intent when administering a will. With 16.3 million unmarried Americans cohabiting and one in five children born into such households, the need for a valid will to avoid intestacy is at an all-time high. Specifically, more families are living with stepchildren or same-sex partners. This makes traditional intestacy statutes, which are designed to protect a more traditional family unit, potentially dangerous for a testator with a nontraditional family. Some states, however, permit ante-mortem probate which allows a testator to probate his or her own will prior to death thus ensuring that the testator’s at-death property distribution plans are upheld. States with ante-mortem probate statutes allow interested parties, such as will beneficiaries and heirs, to contest the will like they would in a post-mortem probate for issues such as undue influence, mental incapacity, or fraud. Unlike post-mortem probate, where the testator is deceased and the court must determine the testator’s capacity and intent without the testator’s input, ante-mortem probate allows the testator to avoid an unwarranted will contest, and the risk of intestacy if the contest is successful, by testifying at the probate hearing. Major concerns with ante-mortem probate statutes, however, are that will contents become public knowledge and that the litigation may strain familial relationships.
Katherine Arango’s article details the shift in American families and how an ante-mortem probate statute would protect nontraditional families. The article explains how adverse attitudes of courts and juries toward nontraditional families could lead to an intestacy distribution, which would be contrary to the testator’s intent. Ms. Arango highlights how ante-mortem probate provides nontraditional families security whereas traditional post-mortem probate cannot. By recounting the history of ante-mortem probate, the article delineates the slow awareness and affirmation of the importance of the doctrine in modern society. The article analyzes the different models of ante-mortem probate statutes and how those models protect the intent of the testator while also explaining possible complications. Then, the article evaluates currently enacted ante-mortem probate statutes. Finally, the article offers a new, comprehensive statute that could be inserted into the Uniform Probate Code as well as adopted by any state looking to implement this probate method. Continue reading "America’s Next Top Probate Model"
May 4, 2017 Kathleen DeLaney ThomasTax Law
Andrew T. Hayashi,
The Effects of Refund Anticipation Loans On the Use of Paid Preparers and EITC Take-up,Virginia Law and Economics Research Paper No. 2016-9 (2016), available at
SSRN.
The conventional wisdom about refund anticipation loans, at least among many academics, is that they are predatory lending products that benefit big businesses at the expense of the poor. Andrew Hayashi turns this notion on its head in his insightful paper, The Effects of Refund Anticipation Loans on the Use of Paid Preparers and EITC Take-up.
Hayashi’s piece makes two important contributions to our understanding of tax-time financial products. First, he undertakes an empirical study that shows that curtailing refund anticipation loans (RALs) resulted in a decline in the use of tax return preparers, which in turn may have led to a drop in tax return filing and earned income tax credit (EITC) claims. Second, Hayashi discusses the welfare implications of RALs — an analysis that has been largely absent from the literature — and highlights the possibility that, on balance, they benefit taxpayers. Both of these insights have important implications for future policy, particularly for how we might regulate current and future tax-time products like refund anticipation checks. Continue reading "Are Tax-Time Financial Products Good for the Poor?"
