Monthly Archives: January 2018

Did He Really Just Say That?

Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 Tex. L. Rev. 71 (2017), available at SSRN.

President Donald Trump is a loquacious man. He speaks at rallies, he speaks at interviews, he speaks at press conferences, he speaks in addresses to Congress, and—nearly every day—he speaks on Twitter. Sometimes, he speaks about his own speech, as when, at a recent rally in Phoenix, Arizona, he quoted at length, though with notable omissions, from his own earlier statements concerning the recent events in Charlottesville, Virginia, where a woman was killed at a protest by neo-Nazis and white nationalists.

In her recently published article, Beyond the Bully Pulpit: Presidential Speech in the Courts, Professor Kate Shaw examines the phenomenon of presidential speech and explains how the courts should treat presidential statements in the course of deciding cases that challenge executive-branch action. Her article has already (and rightly) enjoyed a fair share of the limelight; Professor Shaw’s work on presidential speech was featured in the New Yorker and in the National Law Journal. She also wrote an op-ed on presidential speech in the New York Times earlier this summer. So, while this Jot comes late to the party, I hope it will persuade administrative law scholars who haven’t yet encountered this article that it is still well worth a read. Public presidential statements aimed at influencing agency behavior are an increasingly important facet of “presidential administration,” in the phrase coined by then-Professor Elena Kagan in her famous article. And while Professor Shaw’s discussion ranges far beyond the words of the sitting President, this article is especially salient nowadays, when the headlines are often consumed with reporting and dissecting President Trump’s every utterance. Continue reading "Did He Really Just Say That?"

“You Are Asking Me About Reading Things I Never Had to Read”: Consumer Contracting in Historical Context

Who is best suited to police unfair terms—the market, the judiciary, or the legislature? Williams vs. Walker-Thomas Furniture has long been offered as a cautionary tale, but in her 2014 article, legal historian Anne Fleming takes on the standard narrative of judicial overreach and recasts the relationships among institutional actors in a reform movement.

In 1965, Judge Skelly Wright ruled that Ora Lee Williams’s contract to pay for furniture on a pro rata installment plan was subject to review for unconscionability—a moment of judicial activism that was later blamed for the decline and stagnation of the doctrine of unconscionability. Fleming pushes back against the standard narrative that Williams created a backlash against Wright’s ‘law of the poor’ – according to that simplistic story, “Judges ended up hurting the very people they were trying to help. In the face of incisive criticism, judicial enthusiasm for the doctrine of unconscionability quickly faded.” (Pp. 1387-1388.) Fleming’s argument reframes the Williams decision within a broader context of judicial, legislative, and popular pressure, tracing the revival of unconscionability back to the Uniform Commercial Code, enacted in Washington, D.C. in 1963. In the Williams case, Judge Skelly Wright announced that the UCC’s unconscionability provision in 2-302 was “declaratory of the common law” and ordered the trial court to apply the doctrine on remand. Critics have characterized the Williams case as a short-lived moment of “judicial enthusiasm” soon replaced by more effective legislative action. Fleming argues that consumer protective legislation was enacted not to replace judicial review of unfair terms, but to complement it. The Williams transaction was of course at the center of the litigation with Walker-Thomas furniture, but her situation was also repeatedly invoked in consumer credit policymaking deliberations. “[T]he Williams litigation brought together a coalition of reformers, who pressured Congress to adopt a new set of rules for policing installment sales.” (P. 1438.) Continue reading "“You Are Asking Me About Reading Things I Never Had to Read”: Consumer Contracting in Historical Context"

Time to Re-think the Idea of System

Sara Mayeux, The Idea of ‘The Criminal Justice System’, Am. J. Crim. L. (forthcoming 2018), available at SSRN.

Do you want to reform the criminal justice system? Maybe with new evidence-based practices? Or maybe you doubt the word ‘justice’ is appropriate and you would like to shrink the criminal system more generally? Good luck, because, to paraphrase an old anarchist poster from London that used to hang on my wall in high school, “whoever you voted for, the system got in.” In short, almost all of us return repetitively to the idea, the metaphor really, that the criminal process is or at least can aspire to be a system. It may be time, in the aftermath of mass incarceration, to not only reform, and shrink American crime control institutions (or the carceral state if you prefer), but to (use a horrible malapropism, forgive me George Orwell) de-systematize it.

Mayeux’s enlightening essay provides us a genealogy of the rise of system thinking over criminal justice thinking. The idea that all things natural and artificial can usefully be thought of as systems (and creation a complete system) goes back to the Enlightenment at least. Modern sociology, in its mid-century rise to national prominence, promoted the idea of a social system, inside of which functioned numerous sub-systems. After the war systems theory took off in the operations research wing of engineering where, spurred by the tremendous numbers of bombs dropped and planes built and destroyed during World War II (Mayeux skips these details), the idea of breaking down processes into their essential elements and studying their flow and interaction took hold. This thinking seeded in business schools in the 1950s and came back to government with Robert MacNamara in the 1960s. Continue reading "Time to Re-think the Idea of System"

Saving America’s Future From the Way We Save Now

William A. Birdthistle, Empire of the Fund: The Way We Save Now (2016).

Last spring, I decided to teach a research seminar on the investment fund industry and regulation. Scoping out available literature, I picked up William Birdthistle’s recent book, Empire of the Fund – and, literally within minutes of reading, knew that I had found the perfect anchoring text for the seminar. More than that, I was hooked. Over and over again, the book made me nod my head and raise my eyebrows, in a single moment of recognition and enlightenment. It made me shake my head in anger and wrinkle my forehead in puzzlement. It made me laugh out loud as I turned pages sparkling with humor and brilliance, and it made my heart heavy as I stopped to think about what made it all so funny. I finished the book in one sitting, and it was an experience.

That’s because Professor Birdthistle’s book is not just about the nuts and bolts of mutual funds: it is ultimately about all of us, ordinary Americans trying to save some of our hard-earned money for such scary and inevitable things like old age. Birdthistle is using the familiar structure of a mutual fund as an institutional prism through which to assess the consequences of America’s grand experiment with putting the financial responsibility for retirement squarely on individuals, rather than society as a whole. Since the 1980s, most Americans – or, at least, the lucky ones who can afford to – have been saving for retirement by contributing a portion of their earnings to 401(k) plans, which then channel the bulk of these savings to mutual funds. We, individual savers, ostensibly have the power to choose where to invest our money. In reality, however, these choices are largely meaningless: ultimately, we are all captive investors in the sprawling, incestuous, multi-trillion-dollar mutual fund empire. But, the book asks, do we really understand how, and for whose benefit, this empire operates? Continue reading "Saving America’s Future From the Way We Save Now"

What We Now Know We Didn’t Know about Tax Evasion (and Why it Matters)

Annette Alstadsæter, Niels Johannesen & Gabriel Zucman, Tax Evasion and Inequality, NBER Working Paper No. 23772 (2017).

Over the past several years, a series of leaks related to offshore tax avoidance and evasion (SwissLeaks, LuxLeaks, the Panama Papers, Bahama Leaks, and Paradise Papers, to name a few) has fueled calls for tax transparency. To date, most discussion of the leaks has been policy-oriented (leaks: good or bad?) and largely anecdotal (based on some truly outrageous revelations). It was not until very recently, however, that a small group of researches started delving into the data exposed by these leaks to make statistically significant empirical findings. Alstadsæter, Johannesen & Zucman’s (AJZ) paper is an excellent example of such paper, which combines methodological sophistication, public data, and leaked data, to make important new contributions to the voluminous literature on the offshore tax world.

Matching leaked data with data from random audits in Scandinavian countries, public wealth records in those countries, and data from voluntary disclosure programs, AJZ find that offshore tax evasion (meaning, the act concealing income from tax authorities in offshore accounts), is not evenly distributed across wealth groups. Rather, they demonstrate that “the probability to hide assets offshore rises sharply with wealth, including within the very top groups of the wealth.” Continue reading "What We Now Know We Didn’t Know about Tax Evasion (and Why it Matters)"

Perfecting Procreation

Understood etymologically simply as “well born,” the term “eugenics” has over time evolved to take on different meanings in legal and bioethical debates surrounding reproduction. Eugenics originally referred to the set of practices that controlled—and grossly limited—reproduction during late-nineteenth and early-twentieth-century America. (Pp. 28-53.) More recently, eugenics has described the use of embryonic screening technologies by prospective parents purportedly driven by a desire to master nature and perfect procreation. (Pp. 184-93.) Historically, our understanding of eugenics focused mostly on the state’s coercive power over its citizens’ reproductive choices through nefarious practices like mandatory sterilization. By contrast, the more recent appeal to eugenics, known as “liberal eugenics” or “neoeugenics,” captured instead private procreative decision-making in a world of rapidly advancing alternative reproductive technology (ART). (P. 185.)

In The New Eugenics: Selective Breeding in an Era of Reproductive Technologies, Judith Daar argues for a different understanding of eugenics, one which, as Daar’s title suggests, she calls the “new eugenics.” The new eugenics, Daar argues, comprises the contemporary state and private practices that either actually or effectively exclude certain populations from accessing—and therefore forming families through—alternative reproductive technologies like in vitro fertilization, alternative insemination, and surrogacy. Daar’s “new eugenics” exhibits some of the aspects of the early eugenics program in the United States, representing as it does a set of practices that are “fueled” by concerns relating to science, tradition, and economics—concerns that often are “celebratory of majoritarian values, messaging that minority populations and their offspring are less deserving of access to fertility care.” (P. 52.) Moreover, Daar is careful to distinguish her conception of the “new eugenics” from neoeugenics. Critics of neoeugenics, she says, equate the voluntary procreative decision-making of prospective parents today with the coercive reproductive programs of former times. (P.185.)1 In so doing, she contends, these critics miss “the true eugenic nature of modern reproductive technologies,” namely, “the inability of a significant number of would-be parents” to access them and thereby “achieve parenthood.” (P. 185, note 1.) (Emphasis added.) Continue reading "Perfecting Procreation"

Cooperative Procedure-Making

Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion, 98 B.U. L. Rev. (forthcoming 2018), available at SSRN.

Over the past few decades, two narratives have emerged about who controls civil procedure. One describes the rise of private procedural ordering, a phenomenon that encompasses a number of different practices whereby parties dictate the procedural rules they will face in potential or ongoing dispute resolution. Arbitration clauses are the most extreme example, where parties opt out of court procedures altogether, but there has also been extensive commentary about parties’ abilities to contract for particular procedural rules or otherwise customize the procedure governing litigation. The rise of private procedural ordering, according to some accounts, is overtaking procedure dictated by existing laws, such as the Federal Rules of Civil Procedure. The second narrative is about the rising prominence of the judge in “managing” litigation with increasing amounts of judicial discretion. To the extent that these two narratives intersect, it might seem that private procedural ordering has nothing to do with judicial discretion other than obliterating it.

Robin Effron’s new article tackles the important task of identifying and examining the connection between these two narratives. By looking at them together, Effron illuminates age-old questions of who controls litigation and arrives at a nuanced and thoughtful answer: Rather than one always overtaking the other, private procedural ordering and judicial discretion alternate between being cozy and uncomfortable bedfellows. These dynamics can result in uneasy cooperation between parties and judges, providing some solutions to difficult problems in modern litigation. But they offer little comfort with regard to many concerns about either private procedural ordering or judicial discretion. Continue reading "Cooperative Procedure-Making"

Teaching Property Through Indian Land Law

Jessica A. Shoemaker, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, 115 Mich. L. Rev. 487 (2017).

Many first-year property classes start with the centuries-old Johnson v. M’Intosh (1823). There, Chief Justice John Marshall declared that the Indians were but occupants on their ancient lands, subject to the Europeans’ ownership, which was founded upon their “discovery” of America. Apart from general musings on the fairness and cogency of this ruling, property professors mostly leave the discussion of Indian land law and how it developed over time for another day and another course.

Professor Shoemaker’s article, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, reveals how Indian land law, despite its complexity, is a brilliant construct for teaching traditional property concepts such as the system of land tenures as well as property’s limits and justifications. It is also well-suited to understanding other doctrinal topics such as the regulatory state, decedents’ estates, and torts. Continue reading "Teaching Property Through Indian Land Law"

The Dead’s Online Accounts

Alberto B. Lopez, Posthumous Privacy, Decedent Intent, and Post-Mortem Access to Digital Assets, 24 Geo. Mason L. Rev. 183 (2016).

In Posthumous Privacy, Decedent Intent, and Post-Mortem Access to Digital Assets, Alberto B. Lopez discusses a distinctly modern problem: how much access should a personal representative have to decedent online accounts? Surprisingly few states have addressed this important question, although there is a recent flurry of proposals. Lopez argues that the legislative debate has failed to account for the decedent’s privacy interest and has mostly ignored decedent intent, the lodestar of estates and trusts law. He concludes that when decedent privacy and intent are properly “included in the legislative balance,” policies will lean “toward non-disclosure for individuals who die intestate and toward disclosure if the testator has instructed [by will] that account contents be available.” (P. 242.) While I would ultimately permit more access than Lopez recommends, his article is a must-read because it highlights an important estate planning problem and makes the reader ponder the appropriate scope of post-mortem privacy.

Digital accounts contain a plethora of information: photographs and other individual memories, email correspondence, entertainment files, individual work product, career information, financial data, and on and on and on. Some of this information makes the job of administrating an estate easier; some of it has subjective value to the decedent’s survivors; and some of it may even have actual market value. Continue reading "The Dead’s Online Accounts"

A Modern Approach to Pay Disparities in the Workplace

Stephanie Bornstein, Equal Work, 77 Md. L. Rev. (forthcoming 2018), available at SSRN.

In her article, Equal Work, Professor Stephanie Bornstein (Florida) does a superb job of providing a fresh approach to the continuing problem of pay discrimination in the workplace on the basis of gender and race. As Professor Bornstein correctly acknowledges, pay discrimination has remained an ongoing problem in our society for decades. Her article makes two extraordinarily useful contributions: first, it undertakes a comprehensive survey of the latest literature on pay discrimination and its causes, and second, it offers solutions that do not require legislative reform to chip away at this pervasive problem.

Early in her article, Professor Bornstein provides a comprehensive review of the existing data on gender and pay discrimination in the United States. This overview does a nice job of bringing together all of the most up-to-date research in this area. Then, Professor Bornstein makes an effort to explain why the pay gap continues to exist in the course of exploring recent research on occupational segregation and income inequality in this country. To this end, Professor Bornstein also addresses the complexities of the law on pay discrimination in the workplace, closely examining Title VII of the Civil Rights Act of 1964 and the Equal Pay Act (EPA), before discussing recent efforts on the state level to resolve these problems, including statutes passed in California, Massachusetts, and Oregon. The paper also correctly recognizes the many efforts to close the race and gender pay gap that have been made over many decades and at all levels — federal, state, and local. While some of these efforts have helped reduce pay disparities at different points in our nation’s history, the gap remains persistent and efforts to fix the problem have stalled in recent years. Continue reading "A Modern Approach to Pay Disparities in the Workplace"

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