Monthly Archives: March 2018

Status-Conduct, Old and New

Deborah A. Widiss, Intimate Liberties and Antidiscrimination Law, 97 B.U. L. Rev. 2083 (2017).

 The slippery relationship between status and conduct has preoccupied scholars, activists, and courts for many years.1 At various points, state and private actors have avoided claims of unlawful discrimination by disaggregating status from conduct—claiming that they have singled out individuals for unfavorable treatment based not on protected identity but rather on objectionable and unprotected acts. In Intimate Liberties and Antidiscrimination Law, Deborah Widiss uncovers the extensive reach of this status-conduct argument, persuasively urges actors in the legal system to abandon it, and elaborates the implications of that abandonment for current conflicts over the scope of antidiscrimination law.

Perhaps nowhere has the status-conduct distinction been more prominent than in the realm of sexual orientation. In Bowers v. Hardwick, the 1986 decision upholding anti-sodomy laws against constitutional challenge, the U.S. Supreme Court refused to identify “homosexual conduct” as a protected liberty. After Bowers, LGBT rights advocates attempted to disaggregate conduct from status, even though they understood same-sex sex as inextricably linked to lesbian and gay identity. Advocates would contend that even though the government could criminalize the underlying conduct, it should not be permitted to discriminate against people based on their status as lesbian or gay. This strategy yielded mixed results. As the D.C. Circuit reasoned in 1987, “If the Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious.”2 Continue reading "Status-Conduct, Old and New"

Measuring Common Claims About Class Actions

Joanna C. Schwartz, The Cost of Suing Business, 65 DePaul L. Rev. 655 (2016).

Joanna C. Schwartz’s 2016 article, The Cost of Suing Business, comes out of the Clifford Symposium on Tort Law and Social Policy at DePaul University College of Law—an annual gathering now in its twenty-fourth year that, under Professor Stephan Landsman’s singular stewardship, has been the site of so much valuable inquiry.

In the article, Schwartz questions a narrative that has succeeded in both Congress and the Court: that “class actions are the most significant scourge on business ever conjured up by man.” (P. 655.) In her words:

In brief after brief to the U.S. Supreme Court, the Chamber of Commerce and other business amici tell the same story: Meritless class actions, filed by rapacious plaintiffs’ attorneys for the ostensible benefit of consumers, employees, and shareholders, are so devastatingly expensive to defend against, and threaten such financial devastation if plaintiffs prevail, that corporate defendants cannot help but accept “blackmail settlements” that harm both businesses’ bottom lines and society at large.


It’s certainly familiar. And it’s undeniably arresting. But is it true? Continue reading "Measuring Common Claims About Class Actions"

Using Empirical Studies as a Basis for Updating Intestacy Laws

Danaya C. Wright & Beth Sterner, Honoring Probable Intent in Intestacy: An Empirical Assessment of the Default Rules and the Modern Family, 43 ACTEC L.J. 341 (2017).

The principal goal of any intestacy statute is to determine the probable intent of individuals who die without a will. Presumably, that means determining what most people who die without a will would want their wills to say if they were to have executed a will before dying. This is a particularly challenging endeavor, given that intent changes over time and may not be consistently the same throughout a large, multicultural country.

In their excellent article, Professor Wright and Ms. Sterner analyze 493 wills that were probated in Escambia and Alachua Counties, Florida, in 2013. They do this, the authors say, “[i]n light of the fact that marriage is a waning institution and a majority of children are currently being raised in nontraditional families—defined as blended, single-parent, or same-sex.” Continue reading "Using Empirical Studies as a Basis for Updating Intestacy Laws"

Encouraging Technological Innovation in Environmental and Energy Law

Zachary Liscow and Quentin Karpilow, Innovation Snowballing and Climate Law, 95 Wash. U. L. Rev. 385 (2017), available at SSRN.

Innovation is a critical component of environmental progress. The dramatic reductions in emissions per-mile-travelled from automobiles over the past forty years stem from major breakthroughs like the catalytic converter. Our efforts to switch from fossil-fuel-based energy and reduce greenhouse gas emissions will depend on many different kinds of technological innovation. The dramatic price drops in both wind and solar energy, for instance, are in significant part the result of the development of new technologies.

How can environmental law facilitate the development of new technology to address the challenges of climate change and other environmental problems? The predominant position of economists has been that legal tools that force economic actors to address the full costs of their actions, including the externalities that are the basis of many environmental problems, is the appropriate approach to spur innovation. A carbon tax (or a tradable permit system which requires polluters to purchase their permits) will create incentives for firms and individuals to come up with new technologies that will reduce environmental problems. Liscow and Karpilow’s article challenges this dominant paradigm, drawing on recent significant economics research. Continue reading "Encouraging Technological Innovation in Environmental and Energy Law"

Just How Big an Envelope Will You be Needing for that Benefit-Cost Analysis?

Christopher Carrigan & Stuart Shapiro, What’s Wrong with the Back of the Envelope? A Call for Simple (and Timely) Benefit-Cost Analysis, 11 Regulation & Governance 203 (2017).

For over thirty years, every President has issued or maintained executive orders that require agencies to prepare highly formal benefit-cost analyses (BCAs) for significant rules and to submit these BCAs to the Office of Information and Regulatory Affairs (OIRA) for review. For just as long a time, administrative law scholars have been fighting about the merits of both formal BCAs and centralized review. Over time, the locus of this debate has shifted from whether to conduct BCA as part of rulemaking to how to conduct it. The Supreme Court contributed to this shift a couple of years ago in Michigan v. EPA, when all nine justices agreed that reasonable rulemaking requires an agency to give some form of consideration to costs and ensure that they do not wildly outweigh benefits.

The debate over how to conduct BCA, in turn, centers on the problem of monetization. Although President Trump’s issuance of E.O. 13,771 has in many respects dramatically altered White House controls on agency rulemaking, the key executive order governing this process, E.O. 12,866, remains in place. It instructs agencies to monetize costs and benefits “to the extent feasible” as they prepare BCAs as part of their regulatory impact analyses (RIAs). This requirement can put agencies in the difficult position of placing monetary values on nonmarket goods such as preventing a parent from backing a vehicle over a young child. Notwithstanding such difficulties, some scholars contend that to ensure socially optimal rules, agencies should increase their commitment to monetization—even an educated guess on a dollar value, properly explained, is better than giving up on quantification.1 Continue reading "Just How Big an Envelope Will You be Needing for that Benefit-Cost Analysis?"

“And the Deposition Goes to the Gentleman in the Blue Pinstripe Suit”

Ronen Avraham, William Hubbard & Itay E. Lipschutz, Procedural Flexibility in Three Dimensions (Unpublished draft, 2018).

A burgeoning procedural literature explores the power of parties to alter the procedural entitlements of the civil-justice system by means of contractual agreement and the limits of that power. The most dramatic example of such bargaining is the agreement to arbitrate, although bargaining also can occur within the context of a civil lawsuit. As Ronen Avraham and William Hubbard argue in a fascinating new paper, this literature has focused almost exclusively on a single question: which procedures are subject to contractual negotiation and which are not? No one believes that the parties can by contract agree to let the judge flip a coin to determine the winner, but most scholars believe that parties can contract for fewer depositions or requests for production. The debate has centered on distinguishing “core” procedural rights that are not subject to negotiation from non-“core” rights that can be bargained away.

While largely accepting that distinction, Avraham and Hubbard challenge extant efforts to establish the limits of procedural flexibility by means of this “core” metric. They make two critical points. First, the distinction between the core that is non-negotiable and the non-core procedural rights subject to horse-trading is slippery at best. There is widespread agreement that core rights are those whose alteration through party negotiation might impair the interests of third parties, might impose additional burdens on the court, or might impinge on reasoned judicial decision-making. The parties’ inability to contract for a coin flip by the judge falls within this last category. But the sacrifice of non-core rights (say, bargaining away the right to take depositions) can affect the information on which the judge’s decision is based and thus deflate the quality and accuracy of judicial decision-making. Even assuming that lines can be drawn, the authors demonstrate that many “core” rights, which should in theory apply uniformly in all cases, are subject to great variability and flexibility in practice, with different judges (and sometimes even the same judge) adopting different procedures in different cases to reason their way to the result.

The second criticism — and the paper’s critical insight — is the all-or-nothing nature of the distinction. Continue reading "“And the Deposition Goes to the Gentleman in the Blue Pinstripe Suit”"

Beyond the State-Owner Binary: Repositioning the State’s Property-Resource Responsibilities with Respect to All Community Members (Including Property Owners)

Laura S. Underkuffler, Property, Sovereignty, and the Public Trust, 18 Theoretical Inquiries L. 329 (2017).

Laura Underkuffler’s recent article, Property, Sovereignty, and the Public Trust, is part of a special issue of Theoretical Inquiries in Law. The collection as a whole is an important read for anyone interested in the relationships between individual property rights claims and the role and remit of the state in the “private property” sphere. The twelve articles collected in the special issue offer insightful and wide-ranging contributions to these important debates and, both individually and collectively, will hold much interest for Property section readers.

Underkuffler’s contribution examines the theoretical basis for what she describes as the ubiquitous assumption in liberal democratic systems that government should forbear from interference with existing individual property entitlements. Her starting point is the sovereign’s duty to respond to the needs of all members of its community, and from this position she describes the concept of forbearance as “an inherently troublesome proposition.” (P. 330.)

In the course of the article, she examines the core arguments of conventional theories of government forbearance from interference with existing individual property entitlements—for example, for protecting individual reliance interests, or for public policy reasons like encouraging investment or enhancing social stability, or through the tautology that the idea of property itself determines the requirement of government forbearance.

Yet, Underkuffler concludes that each of these arguments offers insufficient reasons, on its own terms, to adequately explain the “forbearance phenomenon.” She offers an alternative lens through which government forbearance can be explained, rooted in the “fiduciary relationship” between a government and its citizens. Fiduciary theory offers an interesting frame for thinking about the structured, institutional, hierarchical power dynamics of relationships between the state and its citizens, and offers a fresh concept for giving content to the state’s responsibilities towards property owners. Continue reading "Beyond the State-Owner Binary: Repositioning the State’s Property-Resource Responsibilities with Respect to All Community Members (Including Property Owners)"

Heil Jim Crow?

In Hitler’s American Model, James Q. Whitman explores Nazi Germany’s focus on American law, taking on the conventional view that Germany found little of interest in the United States. (P. 4.) Whitman demonstrates otherwise, arguing that even though the Germans rejected racial segregation as it was practiced in the American South, they undertook a “sustained” examination of other aspects of American race law, including restrictions on immigration based on national origin, prohibitions against interracial marriage, and rules that fostered “de jure and de facto second-class citizenship for blacks, Filipinos, Chinese, and others.” (P. 5.)

Rooting his argument in a fascinating array of sources, Whitman demonstrates that Nazi lawyers became particularly interested in American immigration restrictions. They focused on a series of quotas enacted in the 1920s that limited immigration based on the ethnic groups that were already in the United States, an approach that favored northern Europeans from England, Scandinavia, and Germany – all groups that the Nazis loosely classified as “racially related” and the truest expression of the American “volk.” (P. 54.) That America had a “volk” might be news to some, but this is why Whitman’s study is so interesting. It suggests strongly, and persuasively, that America’s commitment to white supremacy eclipsed – or rather subsumed – its other projected ideals abroad, including for example its commitment to democracy, a value that Woodrow Wilson had trumpeted loudly during World War I. “That the Americans have begun to think about the maintenance of race purity,” wrote Nazi legal expert Martin Staemmler in 1935, “can be seen in their immigration laws, which completely forbid the immigration of yellows, and place immigration from the individual European countries under sharp supervision, here principally admitting members of the decidedly Nordic peoples (English, German, Scandinavian states).” (P. 55-56.) Continue reading "Heil Jim Crow?"

Alabama Song? Lotte Lenya? No. Adolph Hitler!

Professor Whitman – without doubt a leader in the field of comparative law – manifestly wishes he hadn’t learned what he’s learned:

Awful as it may be to contemplate, but the reality is that the Nazis took a sustained, significant, and sometimes even eager interest in the American example in race law. … In fact, … it was the most radical Nazis who pushed most energetically for the exploitation of American models. Nazi references to American law were neither few nor fleeting…. Nor, importantly, was it only, or even primarily, the Jim Crow South that attracted Nazi lawyers. … Their America was not just the South, it was a racist America writ much larger. (Pp. 4-5.)

More concretely:

American immigration and naturalization laws, … culminating in the Immigration Act of 1924, conditioned entry into the United States on race-based tables of “national origins.” It was America’s race-based immigration law that Hitler praised in Mein Kampf … and leading Nazi legal thinkers did the same after him, repeatedly and volubly. The United States also stood at the forefront in the creation of forms of de jour and de facto second-class citizenships for blacks, Filipinos, Chinese, and others; this too was was of great interest to the Nazis, engaged as they were in creating their own forms of second-class citizenship for Germany’s Jews. … America was a beacon of anti-miscegenation law, with thirty different state regimes – many of them outside the South, and all of them … carefully studied, catalogued, and debated by Nazi lawyers. There were no other models for miscegenation legislation that the Nazis could find in the world…. (P. 12.)

“None of this is entirely easy to talk about.” (P. 14.) Continue reading "Alabama Song? Lotte Lenya? No. Adolph Hitler!"

A Story of Jurisprudence and True Philosophy

This is a shaggy dog jot. It starts in the conventional way by identifying a recent piece of work that is recommended for the attention of the reader. However, in the course of justifying that recommendation there is a series of diversions to other works, which distracts from any sustained understanding of where exactly the virtue of the piece is to be found. But, like a shaggy dog story which finally reveals its point, there does eventually emerge a point to the recommendation; although, as with the simile, not the point that might have been anticipated.

The work cited is a response by Gerald Postema to critics in a symposium on the volume covering common-law legal philosophy in the twentieth century he has contributed to Springer’s multi-volume Treatise of Legal Philosophy and General Jurisprudence. Within his coverage of that subject matter, Postema cites an article as a resource for unpacking the notion of true philosophy (vera philosophia) which he then utilizes in his own assessment of the achievements of common-law legal philosophy. This article by Donald Kelley in the 1976 Journal of the History of Philosophy,1 has not, as far as I am aware, received much attention in mainstream Jurisprudence; and I have failed to uncover any real enthusiasm for it within more exclusive, niche jurisprudential concerns. It is, nevertheless, central to our present concerns. Continue reading "A Story of Jurisprudence and True Philosophy"

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