Yearly Archives: 2017
Jan 11, 2017 Scott HershovitzTorts
Nicolas Cornell,
Wrongs, Rights, and Third Parties, 43
Phil. & Pub. Aff. 109 (2015), available for purchase at
Wiley Online Library.
The word “wrong” is the source of much confusion, in part because it does double duty. “You set the table wrong,” I might say, noting that you’ve misplaced the forks and knives. When I say that, I imply that there’s a standard against which place settings are properly judged, and that you’ve mucked things up by failing to match it. This use of the word “wrong” pops up all over the place: “You took a wrong turn.” “That’s the wrong answer.” “Why do I get everything wrong?”
But there’s another way to use the word “wrong”: “You wronged Tom,” I might say, “and you really ought to do something about it.” When I say that, I imply that Tom had a right that you not do what you did, and, moreover, that you owe him something for having breached his right. This usage is related to the first. Tom’s right sets a standard, against which your action is properly judged. What you did was wrong, relative to that standard. But since the source of the standard was Tom’s right, you didn’t just do something wrong, you also wronged Tom. Continue reading "Wrongs Without Rights"
Jan 10, 2017 Kristin HickmanTax Law
Tax specialists are no strangers to the exercise of statutory interpretation. The Internal Revenue Code is an enormously complex statute, with all of the overlapping provisions, competing goals, and specificity interspersed with ambiguity that one would expect to accompany that complexity. And mastering the tax policy aspects of the Code is hard enough that tax specialists might be forgiven for reducing the exercise of statutory interpretation to short statements about considering the Code’s text, history, and purpose, or the “spirit” of the tax laws. A recent exchange between two prominent federal judges—Chief Judge Robert Katzmann of the Second Circuit and Judge Brett Kavanaugh of the D.C. Circuit—and the lengthier books highlighted within their exchange offer a highly readable reminder of the parallel complexity of statutory interpretation theory and jurisprudence. Tax specialists interested in seeing their policy preferences succeed in the real world would do well to take note.
Although tax specialists often like to think of the tax laws as unique, judges in tax cases routinely rely upon and debate about the same tools of statutory construction that they apply and discuss in interpreting other statutes. For just one particularly expansive example, in Rand v. Comm’r, 141 T.C. 376 (2013), in deciding that refundable credits like the earned income tax credit reduce “the amount shown as the tax by the taxpayer on his return” when computing the underpayment penalty under § 6662 and 6664, Judge Ronald Buch discussed the consistent usage canon, the expressio unius canon, the surplusage canon, and the rule of lenity, in addition to the Chevron and Auer standards of review. Judge David Gustafson in dissent maintained that proper application of the rule of lenity supported the opposite conclusion. Judge Richard Morrison, dissenting separately, criticized Judge Buch’s opinion for relying too heavily on the consistent usage canon and ignoring relevant legislative history. (Congress subsequently amended § 6664 to clarify its intent.) Carpenter Family Investments, LLC v. Comm’r, 136 T.C. 373 (2011)—one of the cases leading up to the Supreme Court’s decision in United States v. Home Concrete that basis overstatements are not omissions of an amount from gross income under §§ 6229(c)(2) and 6501(e)(1)(A), includes an interesting exchange between Judge Robert Wherry for the majority and Judges James Halpern and Mark Homes in concurrence over whether unique attributes of the tax legislative process are relevant when considering legislative history in tax cases. And in Yari v. Comm’r, 143 T.C. 157 (2014), in interpreting the phrase “tax shown on the return” in connection with the § 6707A reportable transaction penalty, Judge Robert Wherry referenced several canons, discussed at some length which documents were relevant as legislative history, and observed further that “the process of divining the legislative intent underlying a statute’s language and structure, while subject to canons of construction and well-established methodologies, is hardly an exact science.” Continue reading "Thoughts On Statutory Interpretation—For Tax Specialists, Too"
Jan 9, 2017 Shelby D. GreenProperty
The enactment of the Fair Housing Act of 1968 (“FHA”) is a story filled with intrigue — coercion, duplicity, and back-room deals. In The Secret History of the Fair Housing Act, Professor Jonathan Zasloff provides a riveting account of the maneuvers by the various protagonists in that story.
Some fifty years later, the plots and impacts continue to unfold. Starting with President Lyndon Johnson, who had handily pushed through the Civil Rights Act of 1964, even before his landslide election for his full term, Professor Zasloff shows how it took almost every political arrow in Johnson’s quiver to quash opposition to the FHA. Continue reading "The Passage of the Fair Housing Act of 1968: Stories to Be Told"
Jan 6, 2017 Jill FamilyLexImmigration
For undocumented immigrants, deportation is a constant looming threat. Given the harsh and broad categories of things that an immigrant can do to become deportable, the unfairness of the deportation adjudication system, and the devastating consequences of deportation, it makes sense that immigration law scholars focus on the phenomenon of deportation. Nathalie Martin, whose primary scholarly focus is not immigration law, reminds immigration law scholars that, unfortunately, there are many problems to explore beyond deportation.
Martin explores themes of scarcity by reporting on what she learned through a qualitative study of 50 undocumented immigrants in New Mexico. The study, funded by the National Conference of Bankruptcy Judges, investigates the banking and credit habits of undocumented immigrants through a snowball sampling technique. In Survival in the Face of Scarcity, Martin uses data from the study to explore how issues of scarcity are compounded for a population without legal status. As Martin explains, her findings “show a perfect storm” (P. 109) where individuals with limited rights are fearful to assert any legal rights they have. Continue reading "Problems Beyond Deportation"
Jan 5, 2017 Adam N. SteinmanCourts Law
I’ll start this essay just as Erin Delaney starts her article—with a shout-out to Alexander Bickel. In The Least Dangerous Branch, Bickel extolled the “passive virtues”—deciding not to decide the merits of contentious constitutional issues—in order to preserve the Supreme Court’s institutional legitimacy in the face of the judicial branch’s “counter-majoritarian difficulty.” Strategic avoidance, the argument goes, can enable further dialogue over such issues, allowing resolution through the political branches rather than through judicial intervention.
As it turns out, the United States is not the only place where the judicial branch holds the title of least dangerous. So it is not surprising that other systems have developed devices by which judicial institutions avoid conflict with coordinate branches of government or with popular opinion more generally. As Delaney puts it: “Avoidance is everywhere.” To be clear, Delaney’s article takes no position on whether this sort of strategic avoidance is normatively desirable or whether courts do, in fact, enhance their legitimacy when they engage in such avoidance. But she argues that this assumption appears to influence the behavior of courts across the globe. Her focus in this article is on strategic avoidance by the Supreme Court of the United States (SCOTUS), the European Court of Human Rights (ECtHR), the Constitutional Court of South Africa (CCSA), and the Supreme Court of Canada (SCC). Continue reading "Comparative Avoidance"
Jan 4, 2017 Deborah DinnerLegal History
The standard history of legal aid begins with the founding of the New York Legal Aid Society in 1876. It then chronicles male attorneys’ efforts to professionalize legal services during the Progressive Era, culminating in the 1919 publication of Reginald Heber Smith’s famous text, Justice for the Poor. By centering gender as a category of analysis, Felice Batlan cracks this narrative wide open. Women and Justice for the Poor demonstrates that the dominance of male attorneys and clients was contested from the start. By exposing the temporality and contingency of categories that Smith and many previous historians took for granted, Batlan deconstructs conceptual boundaries between law and social work, lawyers and reformers. The book, which recently won the Law and Society Association’s J. Willard Hurst Award for the best book in sociolegal history, is beautifully written, precisely researched, and strongly argued.
Batlan shows that organized legal services for the poor began earlier than we have recognized, in a female dominion of legal aid that prevailed from the end of the Civil War through 1910. Although a rich historical literature has documented women’s social reform activities in this period, Batlan provocatively argues that many female-dominated organizations functioned as legal aid services. Women reformers in New York founded the Working Women’s Union in 1863. Similar organizations followed in Boston, Chicago, and much later in New Orleans. Elite women reformers acted as lay lawyers. They educated themselves about caselaw, used moral suasion and social pressure to advocate for clients, founded service institutions, and campaigned for reform in local government. Continue reading "Engendering the History of Legal Aid"
Jan 3, 2017 W.A. EdmundsonJurisprudence
- Avihay Dorfman & Alon Harel, Against Privatization as Such (Hebrew Univ. of Jerusalem Legal Research Paper No. 15-29, 2015), available at SSRN.
- Avihay Dorfman & Alon Harel, The Case Against Privatization, Philosophy & Public Affairs 41(1), 67-102 (2013), available at SSRN.
- John Gardner, The Evil of Privatization, Univ. of Oxford (2014), available at SSRN.
Privatization is a phenomenon that legal theorists and legal philosophers have begun to notice and to stake out positions on, for and against. Privatization is defined with reference to the (too?) familiar distinction between public and private actors. Privatization happens when a good, service, or a function that is typically supplied by state government, through the efforts of its officials and personnel, comes to be provided by private actors, perhaps still at state expense. In a pair of recent articles, Avihay Dorfman and Alon Harel have singled out private prisons and mercenary armies as paradigm examples of privatized public goods. Dorfman and Harel lament the fact that both advocates and opponents of privatization conceive the normative issue in purely “instrumentalist” terms. Which type of actor, public or private, can provide a given good or service more efficiently? Discussions therefore deal in contingencies, and at retail level. Dorfman and Harel argue in their 2013 article that this sort of approach fails to engage the intuitive sense that there is something intrinsically worrisome about privatization that pervades it wholesale. It isn’t centrally a question whether private prisons, say, are more or less likely to do the job efficiently (without compromising prisoner rights). It is rather a conceptual question whether there is a category of goods—“intrinsically public goods”—that can only be provided by the state, directly, by its officials; and, for instance, whether criminal punishment is among them. The answer to conceptual question, and the answer’s retail application might allow the possibility of privatization: in which case, but only then, they say, it is proper to go on to the contingent question about the relative efficiency of public and of private delivery. Continue reading "The Zeal of Our Age"
