Monthly Archives: June 2018
A bellicose politician is on the warpath. His target: the judiciary. On the stump, he mocks individual judges by name and castigates their rulings. The courts, he declares, should not stand in the way of the needs of the public, much less the energetic executive committed to bringing those needs to fruition. Faced with a hostile Congress, a shortage of judges, and no traditional avenue for self-advocacy, the courts are poorly equipped to respond to these attacks on their own. They need a champion on the outside who can make a case against popular passion and for the rule of law.
The story feels conspicuously modern, but it dates back more than a century. The populist demagogue? Theodore Roosevelt. The champion of the judiciary and the rule of law? William Howard Taft. Continue reading "Hail to the Chief Justice"
How did mail fraud come to be a powerful, all-purpose statutory tool for pursuing financial fraud in the United States? How does financial fraud resemble and differ from other kinds of commercial fraud—false advertising, misrepresenting the qualities of goods or land, or making impossible promises a seller never intends to keep? And is there, as there seems to be, a connection between novelty and innovation—new markets, new products, new frontiers—and fraud?
Ed Balleisen’s new book, Fraud: An American History from Barnum to Madoff, examines fraud, writ large in America from the end of the civil war through the turn of the millennium. As anyone who knows Balleisen’s work would expect, Fraud is exceptionally researched, observant, thoughtful, and rendered in charming prose. Fraud spans the familiar legal silos to provide a sweeping history of different varieties of fraud, and their regulation. This is useful, and the book works because of Balleisen’s disciplined focus on his core questions—how fraud manifests, how regulatory anti-fraud strategies have evolved across time, how and when industry self-regulation has intervened to control it, and how judicial institutions and processes have influenced anti-fraud efforts. The book examines a recurring toggle between interventionist and laissez-faire regulatory approaches; the venerable, if inconsistent and imperfect, tradition of industry self-regulation; and the seemingly perennial link between influence (or lack thereof), and punishment (or lack thereof). It makes a remarkable contribution to our understanding of how fraud and its regulation have evolved thus far, and the conditions out of which our current regulatory models developed. Continue reading "How Much Do You Really Know About Fraud?"
Stephen C. Mouritsen, Contract Interpretation with Corpus Linguistics
(Nov. 4, 2017), available at SSRN
Interpretation of contractual text may be the most important task courts perform in contract disputes. It is also the least predictable. Courts fall back on archaic canons of interpretation and employ poorly defined and spongy concepts for eliciting the meaning of words. They sometimes use textual approaches, and other times admit extrinsic evidence to understand the context. As a result, contract interpretation is erratic, and the resolution of contract disputes becomes complex and costly.
Despite murmurs of judicial skepticism and mountains of academic criticism, the most commonly used criterion in contract interpretation is the “Plain Meaning Rule”—the idea that if the language is clear and unambiguous courts should not consider any extrinsic evidence. But how to tell if a word is susceptible to a single plain meaning? Is it enough to look at dictionaries or to invoke judicial imagination to determine the unambiguous plain meaning?
In my own work and teachings, I have been advocating for a shift towards a data-driven search for plain meaning. My recent article with Lior Strahilevitz proposed one such empirical interpretive method: using large surveys. Now, a major new contribution to this timely enterprise of data-driven interpretation is being proposed by Stephen Mouritsen. In an original and provocative article, Mouritsen introduces a method of interpretation based on empirical linguistics, and demonstrates—quite dramatically—the improvements it delivers relative to existing methods. Continue reading "Data Driven Contract Interpretation: Discovering “Plain Meaning” Through Quantitative Methods"
Declaring the administrative state “unlawful”—in other words, as consisting of agency efforts to evade constitutional restrictions—is all the rage these days. Despite the fact that these assertions condemn administrative undertakings (both their substance and variety), they sometimes overlook both the legislation governing agency actions and the agency policies that they categorically disparage. In Internal Administrative Law, Professors Gillian Metzger and Kevin Stack assert that “internal administrative law” is lawful by reminding us of its roots in public administration, with an argument that is based in the Administrative Procedure Act (APA) and that considers specific examples of administrative guidance. Given that it investigates a complex and sometimes opaque administrative framework, this piece also contributes to scholarship exploring the so-called “black box” of agency activity. The thoughtful execution and wide-ranging implications of this article make it a highly worthwhile read, and of a piece with Metzger and Stack’s respective bodies of work.
Metzger and Stack offer a fascinating conceptual account of the internal directives through which agencies and presidents manage, guide, and coordinate the civil service. In addition, the authors assert that these forms fulfill the criteria of “law,” based both on the original expectations of the APA and on their own consistency with legal norms. For this reason, the authors argue, the prevailing doctrinal emphasis on the external enforcement of public administration, in addition to the general assumption that a policy must create a system of private rights and obligations to be considered law, denies the fundamentally law-like nature of internal administrative law. Continue reading "Putting Public Administration Back into Administrative Law"
While it is always fun to comb my files of recent scholarship to find things that I “like lots,” it was particularly delightful to come upon What is Sexual Harassment? An Empirical Study of Perceptions of Ordinary People and Judges by Jill D. Weinberg and Laura Beth Nielson. For one thing, it’s all in the title. If the #metoo movement and public discourse surrounding sexual abuse and harassment in and outside of the workplace have indicated anything, it has been that the future of the way that the law and society will handle sexual harassment and abuse lies in how it is perceived, both by ordinary people and by judges. The ways in which laws are written, interpreted, and applied, as well as how mechanisms outside of the legal system will work to combat this problem, will be entirely dependent on how the problem is perceived. Moreover, there is no better way to explore this problem than with an empirical study that can substantiate the observations made and the conclusions reached.
This study was propelled, as its authors recite, “by a series of empirical and normative questions,” like, for example, whether the judiciary and regular people perceive sexual harassment the same way; and whether one’s experiences and background dictate one’s detection of sexual harassment, among others. The study brings us to a better and more refined understanding of the factors that predicate where people locate for themselves the line between lawful and unlawful workplace behavior. The resulting article reports on the results of the survey-based study that aims to coordinate one’s attitudes and perceptions with one’s identity as well as professional and social situations. The article provides more than the results of the study, though. It walks its reader through a literature review on the subject of how people come to discern unlawful sexual harassment, as delineated distinctly from behavior within the parameters of the law. It also lays out, in a fair amount of detail, the research methodology employed by the researchers, as well as the results of the study and their implications. Finally, the authors explore the possibility of broadening the concept and definition of sexual harassment legally, in light of the way in which it seems to be construed and discerned by most people. Continue reading "Substantiated Answers to Important Questions About Sexual Harassment"
Parentage is central to our status-based system of inheritance. Over the past twenty years, we’ve seen tremendous changes in how courts and legislatures approach the question of just who is a parent. We generally use the same legal definition of parentage for both family law and inheritance law, a definition derived in many states from the Uniform Parentage Act (UPA). Thus, Professor Courtney Joslin’s new article, Nurturing Parenthood Through the UPA (2017), is particularly salient for trusts and estates scholars.
In Obergefell v. Hodges, the United States Supreme Court held that states must allow same-sex couples to marry. But that decision didn’t address the myriad corollary questions that arose from marriage equality. These included questions like whether the marital presumption of parentage granted to “husbands” also applied to female spouses who were not the genetic parent of a child. Or whether such a nongenetic female spouse had the right to have her name automatically listed on a birth certificate. Those issues were largely put to rest in a relatively unheralded case, Pavan v. Smith, which was decided after Obergefell. Professor Joslin notes that, “In June 2017, the Supreme Court held in Pavan that Arkansas’s refusal to list a woman on the birth certificate of a child born to her same-sex spouse was inconsistent with its prior declaration in Obergefell.” And in McLaughlin v. Jones ex rel. Cty. of Pima, “the Arizona Supreme Court explained, under Arizona’s marital presumption, husbands were recognized as parents even if they were not biological parents. After Obergefell and Pavan, the court continued, that rule could not ‘be restricted only to opposite-sex couples.’” Continue reading "The New Uniform Parentage Act (2017) and Inheritance Law"
Sarah Lawsky, A Logic for Statutes
(Fla. Tax Rev.
, forthcoming), available at SSRN
Professor Sarah Lawsky (Northwestern) has written a fascinating and thought-provoking essay on the logic of statutory interpretation—specifically as it applies to the Internal Revenue Code. Notwithstanding a long tradition of scholarship addressing the interpretation of legislative texts in general, careful attention to interpretation of the Code has received comparatively little attention. An important reason for this, as we have argued in previously published articles, has been the tendency to frame Code provisions as rules and to apply them deductively to the facts of particular cases. Such a practice pushes in the direction of a more-or-less mechanical interpretation of the Code, which in turn makes questions regarding statutory interpretation seem fairly uninteresting. Professor Lawsky’s essay engages directly and critically with this practice.
Professor Lawsky argues that while the application of statutes involves “rule-based reasoning,” it is “not best understood as merely deductive.” Rather, the proper logical model for understanding statutory reasoning is what Professor Lawsky calls “default logic.” She argues that application of the Internal Revenue Code does not proceed as the direct, deductive application of an individual statutory provision to a set of facts; rather, the structure of the Code comprises two different orders of rules: (1) “default rules” (if-then rules) and (2) priority rules (rules that establish the “relationship between” and the “relative priority of” the default rules). As an example, Professor Lawsky applies this more complex rule structure to Section 163(h) of the Code (which permits a deduction for home mortgage interest), and argues that default logic “more accurately reflects rule-based legal reasoning as actually practiced by lawyers, judges, and legislative drafters.” Continue reading "Rules vs. Standards"
Ming H. Chen, Leveraging Social Science Expertise in Immigration Policymaking
, 112 Northwestern L. Rev. Online
(forthcoming 2018), available at SSRN
In President Donald J. Trump’s first State of the Union address he framed immigrants as dangerous criminals—gang members and murderers. To address this public safety threat President Trump proposed building a wall along the Southern border, ending the visa lottery, and eliminating the majority of family-based green cards. Yet social science research dating back to the early 1900s has found that immigrant criminal activity is significantly lower than United States citizen criminal activity. Despite these robust social science findings, immigration policy makers continue to promote and adopt policies based on the idea that immigrants present a significant public safety risk to the American public.
Ming H. Chen’s forthcoming essay, Leveraging Social Science Expertise in Immigration Policymaking, offers a critical intervention at this time in immigration policymaking. Chen’s essay presents concrete strategies that immigration policymakers can utilize to ground immigration policymaking in facts and social science insights. Chen’s recommendations focus on the process by which immigration decisions are made and seek to bring traditional administrative and constitutional principles into the process. First, bring presidential policymaking into the administrative state. Second, use political mechanisms to improve the quality of evidence used in the immigration policymaking process. Finally, strengthen judicial review of immigration policy. Continue reading "The Need For Facts In Immigration Policymaking"
Robert C. Hockett & Roy Kreitner, Just Prices
, 27 Cornell J.L. & Pub. Pol’y
(forthcoming 2018), available at SSRN
Our economic system, and particularly our laws of property and contracts, assumes that prices arise naturally from the workings of a neutral market. Rational actors with complete information operate independently, and the laws of supply and demand establish a unique price for a good or a service. The market price established in this manner reflects the value of that good or service. If these assumptions are correct, then one may conclude that the price of any item is “just” in the sense that it reflects the value the relevant market places on it and conveys this information to those operating within that market.
Robert Hockett and Roy Kreitner challenge this conclusion by questioning the assumptions that underlie it. For instance, some market actors do not act independently of each other, and coordination may lead to price distortions. More significantly, the rules of trade are not neutral but rather reflect choices that import values of their own. The fact that the assumptions underlying the supposed justice of prices are questionable does not necessarily lead to pricing that is unjust. But this fact should cause us to question whether and when prices are just. The authors seek to propose factors that can help us decide the justice of particular prices. Continue reading "Are Prices Just?"
Frank Pasquale, A Rule of Persons, Not Machines: The Limits of Legal Automation
, George Wash. L. Rev.
(forthcoming 2018), available at SSRN
It’s funny that people who are so infinitely fallible consistently seek to eliminate that fallibility—to get rid of the vagaries, inconsistencies, and unpredictable nature of human decision-making. In this insightful article, Frank Pasquale exposes a recent incarnation of this effort and its effect on the future of the legal profession. Legal futurists insist that software and new technology can edge out lawyers with a better, more efficient, and more consistent product. There is little that lawyers do that cannot be done better by artificial intelligence, smart contracts, and other block chain technologies. Governance itself will be more efficient, fair, and even-handed if we minimize the human element. Pasquale guides us through the flaws in the argument, the dangers and unintended consequences of the unbridled use of these tools. In doing so, he argues that legal futurists ignore the irreducibly human and discretionary nature of the law and he concludes with a more modest future for technology in the law.
Pasquale begins by exploring and debunking several myths about law and technology. Promotors of the new legal technology suggest that the products can eliminate human discretion. Part of the appeal of legal automation is that it can replace bias with fairness and human error with mathematical precision. The more social scientists teach us about how bias works, the more skeptical we become about the ability of well-trained individuals to make good decisions. But this goal is illusory. Technology does not remove human choice. It merely shifts responsibility from lawyers, judges, and regulators to programmers. In doing so it hides the human choices that are equally plagued by error and bias under the guise of neutrality and objectivity. It shifts decisions from those trained in law to those in a different discipline. Continue reading "The Life of the Law Cannot Be Coded"