Monthly Archives: April 2018
Ronald Levin, Rulemaking and the Guidance Exception
, 70 Admin. L. Rev.
(forthcoming 2018), available at SSRN
The late, great Kenneth Culp Davis was known for many things, but humility was not among them. He knew the answers; he knew them better than did the Supreme Court; and he knew that he knew them. So it is remarkable that there was a problem in administrative law he found “baffling.” That was the distinction between legislative rules, interpretive rules, and statements of policy.
Interpretive rules and statements of policy are now generally labeled “guidance documents,” although that term does not appear in the Administrative Procedure Act. (At least not yet. Indicative of the attention and controversy that surround them, the Senate version of the pending Regulatory Accountability Act would amend the APA to define and attempt to constrain the use of “guidance.”) Agency reliance on guidance documents has led to two related controversies. One is normative and empirical: is the phenomenon an instance of responsible and helpful governance or, rather, an abusive end-run around notice-and-comment requirements? The other is doctrinal: how can one tell what’s a legislative rule and what’s a guidance document? The distinction matters, because the former are subject to the APA’s notice-and-comment requirements and the latter are not. Yet the courts have been as baffled as K.C. Davis, unable to construct a coherent and manageable body of law. Umpteen pages of law review commentary have not improved matters, and the recent politicization of the debate has only compounded the confusion and disarray. Continue reading "Once More Unto the Breach, Dear Friends — Levin on the Guidance Exception"
Mark Glover, Freedom of Inheritance,
2017 Utah L. Rev.
283 (2017), available at SSRN
Policymakers have long focused on the freedom of disposition, the ability of donors to decide how their property should be distributed. These decisions are almost at the complete discretion of the donor. The donee, on the other hand, has a much smaller role in the process. The donee’s only real decision is deciding whether to accept or reject the donor’s gift. This choice is termed the freedom of inheritance. While the freedom of disposition is well understood, the freedom of inheritance has not been explored to the same extent.
Prof. Mark Glover’s article, Freedom of Inheritance, justifies the need to recognize the freedom of inheritance and how policymakers need to facilitate the freedom of inheritance for donees. Prof. Glover explains the importance, mechanics, and rationales behind the freedom of disposition. He then conducts parallel explanations for the freedom of inheritance. The article also analyzes how the freedom of inheritance aids the utility for both the donee and the donor. Prof. Glover delineates how the donee may be better prepared to handle the disposition of the donor’s property post-mortem with specific examples. Finally, the article emphasizes how to best facilitate the freedom of inheritance in contrast with the freedom of disposition. Continue reading "Uncaging the Donee’s Freedom"
Fundamental legal and policy debates usually revolve not only around the goals that the law should pursue, and the appropriate means to achieve them, but also around the underlying facts. Reality is complex, and people tend to look for evidence, to perceive it and interpret it in ways that confirm their prior attitudes. Rigorous empirical research is therefore critically important. In recent years, a growing number of legal scholars have conducted empirical legal studies, often in collaboration with researchers from other social-science disciplines. The thought-provoking article reviewed here—on discrimination against women sellers by bidders in eBay auctions—belongs to this emerging genre.
Market-based allocations of goods and entitlements are presumably not only more efficient than centralized allocations, but also freer and more egalitarian. In the market, buyers and sellers freely transact on an equal footing, as opposed to being rewarded on the basis of their class, race, or gender. Of course, these ideals do not always materialize: there are market failures; transactions do not always reflect the free will of the parties; and markets are sometimes discriminatory. With regard to inequality, some have argued that what appears to be prejudice-based discrimination is actually “rational”—because race and gender are proxies for contractual performance; because profit-maximizing firms cater to the preferences of their prejudiced customers; or because cooperation works best between employees of similar social background. In theory, irrational discrimination cannot survive in a competitive market, simply because it is a faulty profit-maximizing strategy. Arguably, therefore, the continued prevalence of market discrimination indicates either that it is rational, or that our expectations of market competition are exaggerated (or both). Of course, rationality and efficiency do not imply desirability or even permissibility, but most would agree that these are relevant issues when it comes to understanding market discrimination and considering what to do about it. Continue reading "Discrimination Against Women Sellers by Male and Female Buyers"
In Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, Professor Deborah Dinner explores how neoliberalism of the late twentieth century has influenced Title VII’s interpretation and destroyed Title VII’s ability to transform the American workplace into one where employees are properly treated, fairly valued, and fully compensated. She suggests that neoliberalism’s focus on a minimal role for state intervention and on the individual worker as a completely realized market actor capable of protecting her interests through negotiation with an employer is problematic. It has led to an interpretation of Title VII that functionally expands employer prerogatives regarding terms of employment, limits employee power, and legitimates the economic inequality and class subordination that Title VII should attempt to eliminate. Consequently, even “best practices” that fully enforce Title VII “are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives.”
The article is a Thing I Like Lots because it takes two seemingly unrelated topics – Title VII and neoliberalism – and explores how they are connected. Dinner notes neoliberalism is not a tight theory, but a general outlook that focuses on a free-market ideal that favors deregulation and individual autonomy. Accordingly, the article situates employment discrimination law inside of our American culture, recognizing that a law or its interpretation does not exist separate from the society in which it operates. Simply, Title VII – the statute considered most likely to bring substantive and procedural equality to the workplace – can be blunted by interpretations provided by courts and commentators operating in a neoliberal society. The article notes the roads not taken and laments the unmet possibilities of employment discrimination law. That is worthwhile to consider even for a reader who may tend to focus on employment discrimination doctrine rather than theory. Continue reading "Neoliberalism and the Lost Promise of Title VII"
Some of my favourite tax scholarship steps outside technical detail and speaks to how tax systems promote or are informed by higher-order values. So, I welcome Shirley Tillotson’s magnificent and richly researched new book on the era between the enactment of Canada’s federal income tax law in 1917 and its heady 1960s reform period, which saw taxpayer-citizens actively debating the contours of democracy through the vehicle of tax reform. At its heart, the book is about what we can learn about democracy from our engagement with taxation and how our democracy can be enhanced when we find ourselves talking about taxes over coffee.
A historian could learn a lot about tax history from reading iterative drafts of legislation, department of finance notes, house of commons debates, and parliamentary committee reports: indeed, some have. Tillotson doesn’t take those as her starting place. Instead, she is interested in how “real people” engage with the tax system and its reform. For her book, she culled through thousands of letters between taxpayers and tax authorities. The letters were mined from the records of the Department of Finance and the Department of National Revenue, in the papers of prime ministers, finance ministers, opposition leaders, and tax officials. Continue reading "Canadians Can Be Unruly, See For Yourself"
Miguel de Figueiredo, Alexandra D. Lahav & Peter Siegelman, Against Judicial Accountability: Evidence From the Six Month List
(revised 2018), available at SSRN
Are judges motivated by incentives? A recent study by Miguel de Figueiredo, Alexandra D. Lahav, and Peter Siegelman concludes that they can be and shows much more. Nancy Gertner, a former judge and currently a Senior Lecturer at Harvard Law School, suggested the research. Gertner was concerned that the so-called Six Month List causes judges to engage in actions that they otherwise would not take—such as dismissing cases. The List requires the Administrative Office of the United States Courts to report motions pending before federal district judges for more than six months and cases pending for more than three years. Some time ago, after I gave a talk on summary judgment, a judge stated a belief similar to Gertner’s that judges dismiss cases on summary judgment because of administrative deadlines.
We should be concerned about what these judges are saying. Thankfully, the authors have carefully analyzed this issue. The most important conclusion of their study is this: the List should be abolished. After the List’s existence and acceptance for almost thirty years, that conclusion is both remarkable and alarming. Continue reading "Take Down the List"
Maureen E. Brady, The Damagings Clauses
, 104 Va. L. Rev.
(forthcoming 2018), available at SSRN
In her article, The Damagings Clauses, Professor Molly Brady comprehensively analyzes provisions known as “damagings clauses,” which twenty-seven states have enacted in their constitutions. Her work explains the history of their enactment, the courts’ interpretation of these clauses over time, and the potential for reenergizing these constitutional claims to address governmental damages and injuries to property owners that takings jurisprudence or the common law may not otherwise remedy.
Professor Brady’s stated goals for the article are to persuade readers that “there is a place for damagings within condemnation law, that this neglected constitutional provision has the capacity to address a confusing and undertheorized gap in the application of the compensation requirement, and that courts have lost sight of the language’s history in narrowly construing it.”
She has certainly persuaded this reader, and I encourage anyone working in eminent domain law, regulatory takings law, or property law to read this article. Continue reading "So What Are the “Damagings” Clauses and Why Do We Care?"
John H. Langbein, Absorbing South Australia’s Wills Act Dispensing Power in the United States: Emulation, Resistance, Expansion
, 38 Adelaide L. Rev.
1 (2017), available at SSRN
Yale’s Professor Emeritus John Langbein, who introduced the harmless error idea to will formality requirements a few decades back, returns to the place where it all began in Absorbing South Australia’s Wills Act Power in the United States: Emulation, Resistance, Expansion. It began, legislatively speaking, in South Australia. In 1975, South Australia’s State Parliament enacted a statute validating wills with formality defects so long as it was proved that the decedent intended the document to be her will. This “dispensing power” idea soon infected other common law nations, including the United States. Now, a new chapter is being written as a fresh trend emerges: making bequests via electronic technology.
Following a concise review of the common law world’s absorption of Australia’s innovation, sustained through legislative activity, case law, and scholarship, Langbein turns to “a completely unforeseen development – the enforcement of so-called digital or electronic wills.” (P. 1.) A harmless error in the execution of a will should not result in invalidation if there is convincing evidence that the decedent truly intended the document in question to constitute her will. A defect in the “line of sight” or “conscious presence” requirements for witness attestation, for example, ought not to invoke intestacy where other evidence convinces us that the decedent was trying to make a valid will. Today, we are beginning to see a new variety of technically deficient wills – paperless ones. Is the harmless error doctrine equipped to deal with digitized bequests? Or is a new framework for electronic wills necessary? Langbein deftly considers these important questions in this compulsively readable reprinting of a lecture he delivered in Australia in 2017. Continue reading "Dispensing (With) Electronic Wills"
Amanda Dale, Gun Control and Women’s Rights in Context: Reflections of the Applicant on
Barbra Schlifer Commemorative Clinic v Canada, 13 J.L. & Equal.
61 (2017), available at HeinOnline
In Gun Control and Women’s Rights in Context: Reflections of the Applicant on Barbra Schlifer Commemorative Clinic v Canada, Amanda Dale not only provides the reader with an embodied account of law that exemplifies the limits of legal discourse, she also offers a compelling (and disheartening) explication of how and why the Stephen Harper government’s repeal of the long-gun registry threatens the lives of women.
As Dale points out, gun control in Canada is different from that in the United States. Canadian gun control laws are, of course, much more robust. For example, restricted weapons, such as handguns, have been subject to gun control legislation, including a registry, since 1932. However, a Canadian registry for long guns (shotguns and rifles) was not put into place until 1995 – following a mass shooting in Montreal that engendered significant activism aimed at reducing violence against women. The shooter targeted women and said he was motivated by a hatred of feminists. Noting that most women are shot by people they know and that most domestic violence involving firearms involves legally owned shotguns and rifles, Dale explains the connection between the protection of women’s physical safety and the need for a long-gun registry. Continue reading "Women and Guns"
Bitcoin was created in 2009 by a member of a cryptography mailing list who goes under the pseudonym of Satoshi Nakamoto, and whose identity is still a mystery. The project was designed to become a decentralized, open source, cryptographic method of payment that uses a tamper-free, open ledger to store all transactions, also known as the blockchain. In a field that is replete with hype and shady operators, David Gerard’s book Attack of the 50 Foot Blockchain has become one of the most prominent and needed sceptical voices studying the phenomenon. Do not let the amusing title you deter you; this is a solid book filled with solid and thorough research that goes through all of the most important aspects of cryptocurrencies, and it is one of the most cited take-downs of the technology.
The book covers a wide range of topics on cryptocurrencies and blockchain, and does so in self-contained chapters that can be read almost independently. The book does not follow a strict chronological order. This structure actually makes the book entirely more readable and a delight from cover to cover, not only because of the interesting subject matter, but also because of Gerard’s wit and knowledge. Continue reading "New Kids on the Blockchain"