Yearly Archives: 2017
Apr 19, 2017 Aditi BagchiContracts
Cass Sunstein’s thoughts about the ethics of regulation are of more than theoretical interest. He served as Administrator of the White House Office of Information and Regulatory Affairs and has successfully championed the use of behavioral sciences in policy design. “Nudge,” which he coauthored with Richard Thaler, describes the use of choice architecture, or the background conditions for people’s choices, to improve outcomes. Sometimes outcomes are improved from the standpoint of others, as in environmentally-friendly defaults. Sometimes nudges are intended to improve outcomes for the very people (apparently) making the choices.
The Ethics of Influence takes on the objections raised against nudging. Nudging requires that someone decide the direction in which people should be nudged. Nudging can be opaque or even manipulative. Nudging can be a really creepy way for elites within the state to control private individuals, under the radar. The book takes on these potential problems directly and systematically. In part, it parses out benign from insidious nudging. Sunstein simply rejects most of the worst examples and allows that there are domains of private decision-making where nudging is simply inappropriate altogether. He distinguishes nudges that exploit cognitive defects in order to direct people toward behaviors that they would reject from nudges that prompt deliberation and choice. Continue reading "Choosing How We Make Choices"
Apr 18, 2017 Paul HorwitzConstitutional Law
- Daniel Correa, Civil Dissent by Obedience and Disobedience: Exploiting the Gap Between Official Rules and Societal Norms and Expectations, 8 Wash. U. Jurisprudence Rev. 219 (2016) (responding to Jessica Bulman-Pozen & David E. Pozen, Uncivil Obedience, 115 Colum. L. Rev. 809 (2015)).
- Jennifer Nou, Bureaucratic Resistance From Below, Yale Journal of Regulation Notice & Comment (Nov. 16, 2016).
- Jennifer Nou, Taming the Shallow State, Yale Journal of Regulation Notice & Comment (Feb. 28, 2017).
How should one respond to injustice, illegitimacy, or broader threats posed by a democratic governmental regime? Although readers may lump these items together, the commas and “or” matter here, for they are not all the same and the proper response to each may differ. One common answer to some or all of them is civil disobedience. Another, rendered more problematic by the democratic nature of the regime and perhaps by the relative lack of courage of the professional-managerial class, is open rebellion. A third possible response, Jessica Bulman-Pozen and David E. Pozen argued in a valuable, important, and still under-examined 2015 article, is uncivil obedience: a conscientious, communicative, reformist act of strict “conformity with . . . positive law,” “in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.”
One might apply some of the same questions to this very jot. The general custom at Jotwell is to talk about recent “things” we “like lots,” and usually only about one article one at a time. The rule extends to articles published in the past two years, but most jots focus on recent or forthcoming articles. Given my own perverse tendencies, many of my past jots have more or less followed Jotwell’s “rules,” while pushing their limits. (And they have talked about doing so, which may violate another Jotwell “rule,” one that applies to legal scholarship more generally: talk about the article or topic itself, not the process or motives behind it. A law review article that began “This Article is intended to advance the current causes of the Democratic Party,” or “This Article is meant to demonstrate my worthiness for promotion” would be refreshingly candid, and might suggest some interesting things about legal scholarship, but this sort of thing is just not done. An article that got even more “meta” about the nature or role of the article, in order to poke at legal scholarship more generally, would be just as suspect, and the letters complaining about it would invariably begin, “Dear Prof. Schlag.”) Here I talk about three “articles” falling within the time limit. But two are scholarly blog posts, and the third involves a bank-shot, because behind it lies that 2015 article by Bulman-Pozen and Pozen, now verging on being too “old”for Jotwell. And all three articles raise the question whether this jot belongs in the constitutional law section or under legal theory or administrative law. Continue reading "What Will the Federal Government’s Resistance to President Trump Look Like?"
Apr 17, 2017 Richard MurphyAdministrative Law
William Funk,
Final Agency Action after Hawkes, 11
N.Y.U. J.L. & Liberty (forthcoming 2017), available at
SSRN.
Whenever I hear the phrase “force of law” in administrative law, I am inclined to reach for my wallet. Agency statutory interpretations with the “force of law” net Chevron deference; those lacking such force are stuck with Skidmore respect. Legislative rules have the “force of law,” but interpretive rules and general statements of policy (a/k/a guidance documents) do not. And then there is the second prong of the Bennett test for the finality of agency action, which checks whether an action has determined legal rights or obligations or otherwise has legal consequences. In other words, this prong checks whether the agency action has the “force of law.” It is not a coincidence that each of these corners of administrative law is something of a mess. The concept of “force of law” limits application of Chevron, requirements for notice and comment, and the availability of judicial review. But, often enough, courts encounter situations in which this approach seems under-inclusive. For instance, they confront agency interpretive rules that have such large practical impacts that they seem like they should be subject to judicial review—even though, technically lacking the “force of law,” they arguably should be regarded as non-final under Bennett. To accommodate such cases, courts sometimes stretch and tear the “force of law” concept, leaving doctrine confused and confusing.
Fortunately for us, Professor Bill Funk has written a concise and excellent essay, Final Agency Action after Hawkes, that offers a great deal of insight on how to clean up one of these messes. His jumping off point is the Supreme Court’s recent decision in United States Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016), which held that “jurisdictional determinations” (JDs) issued by the United States Army Corps of Engineers stating whether land contains “waters of the United States” constitute final agency actions subject to review under the APA. This opinion strongly highlights but does not resolve the tension between formalism and pragmatism that has plagued the doctrine of finality. Professor Funk’s essay diagnoses this tension, carefully traces its roots, and offers several thoughtful suggestions for resolving it. Continue reading "Reviving and Refining a Pragmatic Approach to Finality"
Apr 14, 2017 Charlotte S. AlexanderWork Law
Emily A. Spieler,
Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act,
ABA J. on Lab. & Emp. L. (forthcoming 2017), available at
SSRN.
At the heart of Emily Spieler’s incisive critique of the whistleblower protections of the Occupational Safety and Health Act (OSH Act) is a basic design question: How might a society enforce workplace safety mandates? On one hand, a top-down government inspectorate might proactively investigate occupational hazards and punish violating employers. On the other, workers who are ill or injured, or who have knowledge of safety risks, might take bottom-up enforcement action through a private lawsuit or other direct action. Or there might be combinations of the two: workers might feed complaints and tips to government, while retaining (or not) some right to take action on their own. In all cases, workers play a central role: as tipsters, complainants, witnesses, litigants. Here is where law and policy makers face a second set of design choices. Given workers’ key role in enforcement, how might they be incentivized to take action, and protected against the downside risks of doing so?
Spieler’s subject, Section 11(c) of the OSH Act, seeks to protect workers who make safety complaints or otherwise participate in investigatory and enforcement proceedings under the Act. Though the OSH Act contains no private right of action – placing it closer to the top-down end of the enforcement spectrum – worker complaints and worker-provided information are nevertheless central to the agency’s investigation and enforcement activities. And as Spieler’s careful analysis reveals, Section 11(c) falls far short of incentivizing or protecting those workers. However, Spieler offers a way forward at the state level, and so her article simultaneously identifies a suite of problems and offers at least a partial fix. Continue reading "Incentivizing and Protecting OSH Whistleblowers"
Apr 13, 2017 Sergio ParejaTrusts & Estates
David Horton and Andrea Cann Chandrasekher,
Probate Lending, 126
Yale L.J. 102 (2016).
Recently, private companies have begun advancing funds to estate beneficiaries in exchange for the beneficiaries’ anticipated inheritances from those estates. These “probate loans,” which have never even been mentioned in another law review article, are explored in detail by Professors David Horton and Andrea Cann Chandrasekher in Probate Lending.
In their excellent article, Professors Horton and Chandrasekher analyze 594 probate administrations that occurred in Alameda County, California, during 2007. Through this analysis, they learned that probate lending is more prevalent than one might expect. In fact, they discovered 77 probate lending deals in the 594 administrations. They also discovered that the lending companies paid beneficiaries about $800,000 in exchange for nearly $1.4 million in inheritances, producing an average markup of 69 percent per year. Continue reading "The Lucrative Business of Lending Against an Expected Inheritance"
Apr 12, 2017 Nora Freeman EngstromTorts
David Engel’s recent book, The Myth of the Litigious Society, has its roots in a piece published over two decades ago, by UCLA’s Richard Abel. In that piece, Abel challenged conventional wisdom by declaring that the “real tort crisis” is an epidemic, not of overclaiming, but rather, the opposite. The tort system’s greatest defect, Abel asserted, is not its whimsical unpredictability or its excessive generosity. To the contrary, the tort system’s biggest shortcoming is that too few accident victims choose to enter the system at all.
In the years since Abel’s writing, numerous researchers have examined this underclaiming idea, from a variety of perspectives. Continue reading "ISO the Missing Plaintiff"
Apr 11, 2017 Omri MarianTax Law
Tax transparency is all the rage these days. The brouhaha around the disclosure (or, in one instance, the non-disclosure) of presidential candidates’ tax returns during the 2016 presidential campaign brought the matter of tax transparency to the front and center of public discourse in the United States. Around the world, recent revelations that multinational corporations dramatically reduced their tax bills by securing secretive rulings from tax authorities, and that billionaires are able to use intricate offshore shell structures to evade taxation, are causing major popular uproar and a demand for increased transparency on tax matters. The demand is heard by intergovernmental as well as national bodies. For example, the Organisation for Economic Co-operation and Development (OECD) recently adopted country-by-country reporting standards, which would require multinational corporations to disclose to tax authorities their activities and tax payments in each country in which they operate. Remarkably, some countries have announced they are considering making the reports public. Another example is Luxembourg, which—responding to international criticism—recently announced it will start publishing redacted versions of advance tax agreements with taxpayers. This represents a dramatic shift in Luxembourg’s usual secretive tax stance.
Against this background, Joshua Blank’s article—The Timing of Tax Transparency—is both perfectly timed and profoundly instructive. Policy choices about whether to disclose tax return information as well as tax administrators’ enforcement actions to increase public scrutiny have generally been viewed as a balancing act between competing values. Increased transparency may improve tax authorities’ accountability and encourage taxpayers to avoid aggressive planning for fear of public backlash. On the other hand, increased transparency hurts taxpayers’ privacy and may provide aggressive taxpayers a clear picture of tax authorities’ inner workings, which in turn may impede tax authorities’ enforcement efforts. The main innovation in Blank’s paper is his abandonment this binary approach towards tax transparency (increased tax transparency: yes or no) in favor of a time-dependent approach (increased tax transparency: when?). Blank argues that the balancing act between the competing values involved plays out differently depending on when—during the administrative tax process—disclosure is made. Continue reading "Is Tax Transparency A Panacea for Popular Discontent with the Tax System?"
Apr 10, 2017 Tanya MarshProperty
William Blackstone’s Commentaries on the Laws of England bifurcated the physical universe into persons and property. In Blackstone’s description of English law, there were categories of persons (just as there were categories of property)—freemen, slaves, and wives “protected” by coverture. But each of those categories of persons consisted of whole, living natural persons. Blackstone recited the prevailing scientific and theological view of the day, that life began upon the “quickening” of “an infant … in the mother’s womb.” Blackstone similarly recited the prevailing legal view of when personhood ended—upon death. But while Blackstone clearly set forth the parameters of personhood, he failed to acknowledge that the borders of “property” did not neatly correspond, leaving the possibility of physical objects that were neither persons nor property.
This gap in English and American common law first caused problems when medical schools began to teach through anatomical study. Medical students needed cadavers to dissect, but prevailing Christian belief in literal resurrection discouraged voluntary donation. As a result, a market in fresh cadavers, rudely disinterred from their graves, emerged. Although these corpses had a market value, English and American authorities were frustrated that grave robbers could not be prosecuted for conversion and related crimes because of the clear common law doctrine, articulated by Blackstone, that human remains are not property.
Medical and scientific advances in the past century have expanded our understanding of the common law gap between persons and property and challenged us to reassess those boundaries, particularly with respect to human tissue with value for transplantation, therapy, or research. Professor Browne Lewis, The Leon and Gloria Plevin Professor of Law at Cleveland-Marshall College of Law, adds to this emerging niche of scholarship at the intersection of property law and bioethics by analyzing the legal status of frozen human eggs. Continue reading "Of Persons, Property, and Frozen Eggs"
Apr 7, 2017 Jack PreisLexRemedies
Tun-Jen Chiang,
The Information-Forcing Dilemma in Damages Law (
Wash. U. in St. Louis Legal Stud. Research Paper No. 16-08-03, 2016), available at
SSRN.
There is a rule in the world of remedies that has always struck me as unfair. The rule, generally speaking, is that damages are not available unless they can be proven with certainty. For example, suppose that I own a pub and hire a karaoke DJ for Friday night. Karaoke is popular in my town and I advertise the event widely. On Friday afternoon, however, the DJ breaches and I’m left without entertainment. During the night, patrons show up and ask about the DJ. Many of them express disappointment; some decide to remain and have a couple drinks but some leave right away. I bring suit for $1,000 in damages. Even though liability is clear in this case, I am not likely to recover a dime in damages because my estimate of damages is, in the eyes of the law, little more than conjecture. If this seems unfair to you, you’re in good company. In fact, some courts see it the same way and have tried to soften the “certainty” requirement by awarding damages that seem like a “good guess.” But the “good guess” approach has its own downside. Guesses are sometimes wrong—especially when the guesser stands to benefit from guessing too high. So what is a court to do?
Scholars and jurists have wrestled with this problem for some time but nobody, to my knowledge, has done so as successfully as Tun-Jen Chiang in his new article, The Information-Forcing Dilemma in Damages Law. Unlike prior scholars, Chiang does not attempt to find the sweet spot between the “certainty” and “good guess” approaches. Instead, he takes a step back and tries to understand the problem. The problem is not simply that we have yet to find the sweet spot; it’s that information deficits force courts to fall back on a general sense of fairness. This sense of fairness will, of course, skew different ways in different cases. Chiang helpfully illustrates how courts oscillate between “certainty” and “good guess” approaches as they attempt to implement vague notions of fairness. In one case (or perhaps one period of time), courts move from “certainty” to “good guess” to ameliorate the unfairness to plaintiffs, but then move from “good guess” back to “unfairness” to ameliorate unfairness to defendants. And then the process starts all over again. Continue reading "Calculating Damages in an Uncertain World"
Apr 6, 2017 W. Bradley WendelLegal Profession
David Luban and I just finished a paper celebrating the 30th anniversary of the Georgetown Journal of Legal Ethics. It recounts the history of the subfield of philosophical legal ethics, organized around two generations of scholarship. The first generation located legal ethics within moral philosophy, seeking to connect the lawyer’s role with values such as autonomy, loyalty, and human dignity. First-generation scholars tended to agree with Arthur Applbaum that conventional and institutional considerations, such as social roles and rules of professional conduct regulating professions, did not relieve lawyers of the burden of articulating a justification, in ordinary moral terms, for their actions. The second generation, by contrast, regarded legal ethics as a branch of political philosophy, and the central problem not being individual moral agency, but the fact of a society characterized by a plurality of reasonable moral, religious, and political beliefs. A commentator challenged us to anticipate what themes the third generation of legal ethics scholarship would develop, and it occurred to us that we should add a fourth possibility, namely a radical position that is critical of the apparatus of positive law and liberal rights, perhaps as a kind of throwback to Critical Legal Studies.
Canadian legal theorist Allan Hutchinson’s recent book, Fighting Fair: Legal Ethics for an Adversarial Age, is just such a contribution to the debate. It is a fascinating combination of radical and old-school, with its reliance on virtue ethics and traditional conceptions of professionalism. Hutchinson rightly points out that the justification for the so-called standard conception of legal ethics, with its familiar tripartite structure of partisanship, neutrality, and non-accountability, is borrowed from liberal political and legal theory. (P. 43.) The problem with it, in a nutshell, is that the standard conception gives priority to the interests of clients over the public interest. (P. 53.) Of course, calling upon lawyers to pay more attention to the public interest has long been a staple of anguished reflections by lawyers and academics on the woeful state of the legal profession. Consider much-discussed books such as Mary Ann Glendon’s A Nation Under Lawyers and The Betrayed Profession by Sol Linowitz from the 1990’s, and more recent work such as Deborah Rhode’s The Trouble with Lawyers. What is distinctive about Hutchinson’s proposed reform of the standard conception is his analogy with the ethics of warfare. He anticipates that readers may blanch at that comparison. Doesn’t the legal profession need less adversarialness, not encouragement to think of litigation as war? Readers old enough to remember Sylvester Stallone action movies from the Reagan years will recall that an unethical style of practice was often referred to a “Rambo lawyering.” The so-called professionalism movement, which was active in the 1990’s, sought to restrain adversarial excesses and restore a spirit of cooperativeness and civility to litigation. Moreover, most lawyers are not litigators, and while it is true that transactional practice can be adversarial, in business practice there is at least the theoretical possibility of obtaining a good deal for all the parties. And what about lawyers who advise clients and bring them into compliance with the law? The warrior ethos central to Hutchinson’s book seems an inexact analogy for what many lawyers do in practice. Continue reading "Legal Ethics After Liberalism"
