Yearly Archives: 2017

Trusts and Estates Law and the Redistribution of Wealth

Felix B. Chang, Asymmetries in the Generation and Transmission of Wealth, 78 Ohio St. L. J. (forthcoming 2018).

Data show that the very rich hold an ever-increasing share of global wealth while that held by the rest diminishes proportionately. And the United States stands out among developed nations for its particularly wide wealth disparities between the rich and the poor. Compared with many nations the rich in the U.S. are generally richer while many of the rest struggle to get by. This severe wealth inequality harms productivity and the broader economy and even threatens democracy and social stability.

Solutions focused on donative transfers of wealth by concerned legal academics often prescribe a tax and transfer system in the form of a robust gift and estate tax regime. But political realities continue to intervene, weakening the federal transfer taxes. Given the way current political winds blow, outright repeal of these taxes seems more likely than their rejuvenation. Continue reading "Trusts and Estates Law and the Redistribution of Wealth"

Can Transferable Development Rights (TDRs) Be Taken?

Christopher Serkin, Penn Central Take Two, 92 Notre Dame L. Rev. 913 (2016).

Transferable development rights (TDRs) are a land-use planning tool that enables regulators to restrict the development of one parcel of property more densely than would otherwise be permitted by applicable land use regulations, while also giving the owners of the restricted property the right to “sell” their property’s development potential to owners of less-restricted land. Ever since the Supreme Court decided Penn Central Transportation v. New York City,1 a number of legal issues about TDRs have remained unanswered.

In his recent engaging essay, Penn Central Take Two, Christopher Serkin tackles the most important of these issues: Whether TDRs are themselves protected by the Fifth Amendment’s Takings Clause. Continue reading "Can Transferable Development Rights (TDRs) Be Taken?"

Cybersecurity and Tax Information: A Vicious Cycle?

Michael Hatfield, Cybersecurity and Tax Reform, 93 Ind. L.J. (forthcoming Spring 2018) available at SSRN.

The international tax arena is awash with calls for tax transparency, and a variety of reforms are underway at the national, regional and global level to bring such transparency to fruition. See, e.g., Joshua Blank’s recent article The Timing of Tax Transparency, reviewed by Omri Marian earlier this year. Of course, with great caches of information comes great potential for security breaches of all types. Michael Hatfield, in his forthcoming article, Cybersecurity and Tax Reform, draws attention to the immensely important cybersecurity risks and challenges of a tax system founded on government collection and use of significant quantities of information. Quoting a former FBI Assistant Director, Hatfield describes IRS taxpayer information as “the gold standard” for being a “treasure trove of information” from the perspective of cyber criminals—large quantities of very valuable data housed in one agency. Is the IRS ready? Maybe not.

Hatfield’s solution to these cyber risks (given the operational demands of running a tax system and the constraints faced by the IRS) is substantive law reform and not merely more security. To be clear, security is a great idea, but at some point, reality must step in and when it does, Hatfield argues that it points to a remedy grounded in tax design and not just cybersecurity. His bold proposal—to have the tax system collect less data—relies on the marriage of substantive law changes and a rethinking of the sources of data security. Continue reading "Cybersecurity and Tax Information: A Vicious Cycle?"

A Provocative Journey through the Arcades of Legal History

Christopher Tomlins, Historicism and Materiality in Legal Theory, in Law in Theory and History: New Essays on a Neglected Dialogue (Maksymilian Del Mar & Michael Lobban eds., 2016).

Christopher Tomlins’ fascinating essay, Historicism and Materiality in Legal Theory, reconsiders the purpose of legal history and its utility for legal theory. For the last three decades, Robert W. Gordon’s landmark article, Critical Legal Histories, has served as the shining lighthouse by which the discipline navigated the murky waters between fact and theory, description and normativity.1 Departing from the evolutionary functionalism of law and society and law and economics scholarship, Gordon extolled the virtues of a critical historicism. In showing the indeterminate character of law’s past, this historicism destabilizes its present. As Tomlins sees it, critical historicism offers a post-structuralist interpretation of law, marked by contingency, complexity, and contradiction. The project of locating law in its socio-temporal context, he argues, generates an almost infinite set of relationships for examination. If critical historicism contends that the relationship between law and society is underdetermined, then Tomlins yearns for bolder causal explanations about legal and social change. Building on several prior pieces, Tomlins’ essay calls for an alternative paradigm to historicism, what he terms “materiality.” (P. 59.)

The essay begins by arguing that historicism has two problems. First, there exists a problem of intelligibility. If historical meaning takes shape only in its context, how can an observer—allegedly objective but also situated in time and place—access this meaning? Second, drawing on the work of legal philosopher Pierre Schlag, Tomlins elucidates the problem of differentiation.2 This is no smaller than the problem of how to distinguish what authoritative texts, corps of experts, institutions, and ritualized practices constitute law. If law and society are mutually constitutive, how do we differentiate between them? Tomlins suggests that the project of legal history should be to examine the process of legal differentiation itself. The essay discusses historical works that illustrate this methodology. Cornelia Visman’s study of state records, for example, explores the process by which administrative technologies produce law. Continue reading "A Provocative Journey through the Arcades of Legal History"

Can Certification Marks Promote Health Related Goals?

Margaret Chon and Maria Therese Fujiye, Leveraging Certification Marks for Public Health, in The New Intellectual Property of Health 257 (Alberto Alemanno and Enrico Bonadio eds, 2016), available at SSRN.

In the past months, there have been several interesting new books published on international and comparative intellectual property (IP). One of the books that has interested me the most is The New Intellectual Property of Health (Alberto Alemanno and Enrico Bonadio eds, 2016). This book tackles a series of important topics which relate to a variety of intersections between IP and public health. Its various chapters include topics related to plain packaging, investor-state dispute provisions, and the controversial notion of IP as investment. As an author of one of the chapters in the book, I am not providing a review of the book itself, but I would like to commend your attention to the chapter written by Margaret Chon and Maria Therese Fujiye, Leveraging Certification Marks for Public Health. In this chapter, the authors focus on the possibility and the capacity of certification marks (marks that certify that products are made or embody a certain standard) to achieve health-related objectives by promoting healthy products. In particular, the authors analyse the role that certification marks play as carrier of certified information about the products and consider whether this information could be leveraged for health-related goals, by leading consumers to purchase specific products that could be considered “healthier” than others available in the market.

Leveraging Certification Marks for Public Health provides crucial and important guidance to scholars, who are engaged in the exercise of attempting to link distinctive signs (such as marks and geographical indications (GIs)) with public health (or other meritorious objectives). In my own chapter, I conclude that GIs do not necessarily promote the consumption of healthier products, although they can certainly increase the quantity and quality of information related to the products they identify. (GIs are often used to identify products which, when consumed beyond moderate quantities, can be quite harmful to health—such as wines, spirits, cheeses, and cured meats.) Chon and Fujiye, however, explore whether certification marks can be used as complementary, if not as alternative, to products’ mandatory disclosure and labelling requirements since these marks provide precise information to consumers related to the quality and other characteristics of the products. Continue reading "Can Certification Marks Promote Health Related Goals?"

Rethinking Medicaid’s Core Mission

John V. Jacobi, Medicaid, Managed Care, and the Mission for the Poor, 9 St. Louis Univ. J. of Health L. & Pol’y 187 (2016).

Republican efforts to “repeal and replace” the Affordable Care Act have generated heated debate over the Medicaid program. Underlying this debate is a fundamental question: How should we define Medicaid’s core mission? In his article Medicaid, Managed Care, and the Mission for the Poor, Professor John Jacobi provides a possible answer to this question: raising the health status of the poor and vulnerable by improving their access to both medical care and the social goods and services whose absence impede health. His vision of Medicaid deserves serious attention by policymakers.

As Professor Jacobi explains, the health-related needs of the poorest Americans differ significantly from the non-poor. An enormous body of research documents the impact that social, environmental, and economic conditions have on individuals’ health. Indeed, poor quality housing, food insecurity, the stress of social inequalities, and other non-medical factors likely exert a greater influence on health than access to health coverage and medical care. Because these determinants of health disproportionately affect the poor and vulnerable populations served by Medicaid, their health care needs are far more fragile and complex than those of other populations. Many experts therefore have concluded that medical care should no longer be provided in isolation from social services, but instead should be part of a delivery system that coordinates clinical and non-clinical services and interventions. As Jacobi explains, “[t]his coordination requires not only the purposeful interaction of previously separate public services, but also coordination of the funding that flows to and through the providers of those services.” Continue reading "Rethinking Medicaid’s Core Mission"

Creative Communities and Intellectual Property Law

Betsy Rosenblatt, Belonging as Intellectual Creation, 82 Mo. L. Rev. 91 (2017).

In late November 2016, recreational knitters Krista Suh and Jayna Zwieman conceived of The Pussyhat Project — a way for knitters and crocheters to participate in the January 21, 2017, Women’s March on Washington by creating a simple hat for marchers to wear. To facilitate the project, there was a website (featuring several patterns for free download, the first created by yarn store owner Kat Coyle), an Instagram account, and a hashtag. There wasn’t, however, a focus on a particular level of output. Rather, the goal of the project was to foster community through creative work, building on existing networks of knitters and highlighting the ways in which knitting circles are often “powerful gatherings of women, a safe space to talk.”

The community’s boundaries were porous and self-policed. Anyone was welcome to claim membership; the only requirement was to create or be the recipient of creation. Although the basic form of the hat was loosely defined — pink in color and rectangular in shape — individual knitters were free to stylize their hats in any way they wished. Patterns were freely shared, and distribution took place via a voluntary infrastructure. The community that resulted produced tens of thousands of hats in two months, and representative hats now reside in the collections of major museums across the country.

Scholars will undoubtedly have much more to say about this movement as its history is written, including critiques involving, inter alia, race, class, gender identity, and the sociology of protest movements. For now, the project is worth adding to our consideration of other organic communities that have inspired creativity without a focus on commercialization — even if they also feature stronger policing mechanisms (Wikipedia), more reliance on traditional IP inputs (fan edits and cosplay), or more emphasis on reputation building (message boards and Facebook posts). What do these community gardens of creativity — unburdened by concerns about monetization or propertization — tell us about what the goals of intellectual property law should be?

Professor Betsy Rosenblatt suggests in her recent article that the law has too narrow a focus. Creating with and for others, research shows, promotes a sense of belonging, which, in turn, motivates and improves the results of creativity. Indeed, for the pussyhat knitters, a sense of belonging to a social movement likely provided the entire motivation to create. (I should make clear here that the example throughout of the Pussyhat Project is mine, not Professor Rosenblatt’s.) So if the law focuses only on the tangible results of creativity — what Professor Rosenblatt refers to as “stuff’ — and fails to consider the importance of belonging, it might incentivize less creativity than it otherwise would. Continue reading "Creative Communities and Intellectual Property Law"

­A Socialist Feminist Legal Theory for Our Time

Cynthia Grant Bowman, Recovering Socialism for Feminist Legal Theory in the 21st Century, 49 Conn. L. Rev. 117 (2016), available at SSRN.

In the aftermath of the 2016 presidential campaign and the dramatic defeat of an avowedly feminist Hillary Clinton to a demonstrably misogynistic Donald Trump, many have called into question the future of feminism. Clinton’s loss to a significantly less qualified candidate and the startling statistic that fifty-three percent of white women voted for her opponent raises questions about the persuasive power of mainstream feminism. Clinton’s campaign revealed the stubbornness of misogyny both in the political system and socially. Yet, even as misogyny became increasingly apparent in the primaries and then more blatant in the presidential race, for progressive women, Clinton’s gender identity and her liberal positions on women’s issues were not enough to overcome their economic concerns and social concerns. Rather, they were drawn to Senator Bernie Sanders’ reinvigorated socialism in the primary race even though they eventually voted for Clinton in the general election.

Prior to this recent campaign, as Cynthia Grant Bowman notes in her article Recovering Socialism for Feminist Legal Theory in the 21st Century, socialism had been largely absent from mainstream party politics in the United States. However, it was critical in the ideological development of a number of social movements in the 1960s and 70s, including those for civil rights, labor rights, and women’s rights. In her article, Bowman seeks to now reintroduce this work to feminist legal theorists to advance an “agenda for both research and legal reform.” (P. 119.) Continue reading "­A Socialist Feminist Legal Theory for Our Time"

Sequential Progression of Dispute Resolution in Federal Courts

Alexandra D. Lahav, Procedural Design (2017), available at SSRN.

An elegant logic seems to animate the intricate mechanics of civil procedure. To determine whether a requested remedy is appropriate, courts must identify the scope of a dispute, consider whether the law provides a potential basis for judicial action, resolve factual disagreements, apply the law to the facts, and reexamine that application when necessary. These abstract requirements manifest as an ostensibly sequential process of pleading, discovery, trial, and appeal, interspersed with dispositive motions.

In theory, each sequential stage of litigation incorporates data developed in prior stages, enabling courts to make progressively more informed decisions. Although a stage analyzed in isolation may appear to involve disjointed maneuvering, a broader choreography unites and structures all stages of a civil action. But what happens if the choreography unravels, jumbling the order of adjudication?

Alexandra Lahav’s new article, Procedural Design, challenges tidy sequential accounts of civil adjudication. The article builds from an empirical observation to a normative conclusion. Empirically, Lahav observes that civil litigation in federal courts does not follow the “textbook” sequential progression that commentators often assume. Instead, “a federal lawsuit may proceed in almost any order” (emphasis in original). She then contends that this departure from presumed ideals requires rulemakers to articulate guiding principles for the progression of adjudication. The article suggests three normative approaches, although one need not agree with Lahav’s typology of cures to accept her diagnosis. Continue reading "Sequential Progression of Dispute Resolution in Federal Courts"

Feminist Judging

Feminist Judgments: Rewritten Opinions of the United States Supreme Court, (Kathryn M. Stanchi, Linda L. Berger, Bridget J. Crawford eds. 2016).

In March of 2016, Cambridge University Press published the American volume of the Feminist Judgments (FJ) series. This tome was preceded by the Canadian, Australian, and Northern Irish editions which rewrote High Court decisions and opinions from the International Court of Human Rights. The American edition follows the same tradition as previous volumes, articulating legal precepts and theories drawing from feminist jurisprudence as well as critical race theory. The subject areas covered include pay equity, marriage, work, occupational options and limits, benefits, reproductive justice and sexuality. What ties these areas together is the issue of gender [in]equality as constitutive of both law and culture.

This book is a fascinating read, because contributors drew from practice as well as theory, creating a philosophy of law which not only incorporates social justice principles but the effect of law on the lives of people. Authors refrained from “theory-speak,” and the plethora of footnotes that plague student edited law reviews. Thus, writing flows, it is crisp and it is passionate; passionate because the subjects discussed touch at the center of what it means to be human and female. Continue reading "Feminist Judging"