Yearly Archives: 2018
Jan 12, 2018 Rosalind DixonInternational & Comparative Law
In Democracy Against Domination, Sabeel Rahman has written a book for our time: a serious intellectual effort to grapple with the problems posed by rising economic inequality and concentration of power, and the role of democratic ideas and processes in responding to these challenges. The book is wonderfully written, impressively broad as well as deep, and offers an original and interesting thesis—the idea that the concentration of economic power in the hands of a powerful few poses an existential threat to individual freedom, and that the solution to this problem lies not in elite-driven forms of “managerial government,” but rather in individual freedom itself. He argues, in other words, that the response to this increasing form of economic domination should be a call for new forms of economic policy and regulation driven and shaped by a highly popular, participatory form of democratic government which calls on the power of “the liberty of the ancients” (compare Stephen Breyer’s Active Liberty).
This puts the book firmly in the genre of what Jeremy Waldron has called, and Rahman himself labels, “political political theory.” Rahman links this theoretical or philosophical argument with a richly historical account of the role of populist movements responding to the “First Gilded Age” in the 1920 and 30s. He thus connects his call for a new form of progressive populism—or popular challenge to corporate power and privilege—to deep historical roots. In this way, his book is similar to another excellent recent book on a related topic, The Crisis of the Middle-Class Constitution (2017), by Ganesh Sitaraman. Together, one might in fact argue that Rahman, Sitaraman and others are contributing to developing a new—or at least renewed—form of historical-political political theory. Continue reading "A Newly Progressive Political Economy?"
Jan 11, 2018 Binyamin BlumLegal History
Accused by Hillary Clinton of paying no income tax for years, in one of the most memorable moments of the 2016 presidential debates, Donald Trump retorted, “That makes me smart.” Days later, Rudolph Giuliani took Trump’s comment a step further, stating that tax avoidance demonstrated the candidate’s “absolute genius.” During the campaign Trump flouted a forty-year tradition among presidential candidates by refusing to release his tax returns. Pundits speculated that all this might affect Trump’s electability. But as we found out on November 8, 2016, voters did not seem to penalize him for this (or other) behavior.
This election episode epitomizes the declining relationship among tax, civic identity, and citizenship, which are at the center of Assaf Likhovski’s Tax Law and Social Norms in Mandatory Palestine and Israel. Likhovski explores the rise and rapid fall of what he calls the “intimate fiscal state”: a state seeking to ensure its citizens’ tax compliance through a close, direct, and almost family-like relationship, relying more on social norms than legal sanctions. Continue reading "On Fiscal Citizenship: A Cultural History of Tax Law"
Jan 10, 2018 Earl M. MaltzEquality
The tenor of the debate over the propriety of creating religious exemptions to generally applicable laws has changed dramatically in recent years. As recently as 1993, progressives and conservatives joined forces to secure passage of the Religious Freedom Restoration Act, which requires the granting of such exemptions in cases where compliance with a statute would “substantially burden a person’s exercise of religion” unless the denial of the exemption was necessary to serve a “compelling” governmental interest. However, as the focus has turned to requests for exemptions by employers who object to the contraceptive mandate of the Affordable Care Act and merchants who wish to avoid providing goods and services for same-sex weddings, the debate over religious exemptions has taken on a starkly partisan aspect, with advocates for both sides often eschewing reasoned argument in favor of emotionally charged rhetoric that demonizes their opponents and effectively denies the possibility of good faith disagreement.
Against this background, Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis, is a particularly welcome contribution to the debate. After a brief overview of the legal and political background of the current dispute over religious exemptions, Debating Religious Liberty presents a series of essays designed to illuminate the different positions on the issue. Corvino, a longtime advocate for LGBT rights, makes the case against all but the narrowest religious exemptions to laws designed to protect people from discrimination on the basis of sexual orientation or gender identity (SOGI laws). By contrast, Anderson and Girgis, both of whom are well-known for their opposition to government recognition of same-sex marriages, contend that religious objections should be honored in a much broader range of circumstances. Continue reading "Reasoned Debate on Religious Exemptions"
Jan 9, 2018 Sergio J. CamposCourts Law
Courts, practitioners, and scholars have recently focused on discovery costs in civil litigation. This produced recent amendments to the Federal Rules of Civil Procedure emphasizing that discovery requests be “proportional” rather than excessive. But this focus has ignored the fact that the information sought in discovery about the defendant’s liability is often consciously created by the defendant’s compliance measures before any litigation actually occurs (a point I am examining in depth in a current project). More importantly, potential defendants may create such information with an eye to ensuring that uncovering it in litigation or through similar regulatory intervention is costly or impossible. Accordingly, reducing the “costs” of discovery by limiting discovery to “proportional” requests may have the perverse consequence of making it even less likely that such information is ever uncovered, giving defendants greater incentive not to comply with the law in the first place.
This perverse consequence of reducing discovery costs is made vivid in Roy Shapira and Luigi Zingales’s new article examining DuPont’s treatment of C8, a chemical used in the production of Teflon-containing products. As Shapira and Zingales detail, DuPont learned in 1984 (and even earlier) that C8 posed potentially serious health risks because of the chemical’s bio-accumulative and bio-resistant properties. Among other things, C8 may cause birth defects in an infant’s eyes and nostrils, a fact discovered when DuPont examined the children of its employees. Nevertheless, DuPont continued to use C8, and even doubled its C8 emissions, for nearly three decades after learning about these risks, stopping its use in 2013. Continue reading "Uncovering Through Discovery"
Jan 8, 2018 Michael MadisonTechnology Law
The commercial law of privacy has long occupied a relatively marginal place in modern legal scholarship, situated in gaps among doctrinal exposition, critical conceptual elaboration, and economically-motivated modeling. Much of the explanation for the omission is surely technological. Until Internet technologies came along in the mid-1990s, it was difficult to turn private information into a “thing” that was both technically and economically worth buying and selling.
Technology and markets have passed the point of no return on that score. Claude Shannon, credited as the author of the insight that all information can be converted into digits, has met Adam Smith. Yet relevant legal scholarship has not quite found its footing. Paying for Privacy and the Personal Data Economy, from Stacy-Ann Elvy, offers a novel way forward. Professor Elvy’s article offers a nifty, highly concrete, and eminently useful framework for thinking about the commercial law of things that consist of assets derived from consumers’ private information. It is not only the case that commercial law is one of the legally-relevant attributes of privacy and privacy practices. Privacy can be thought of as a mode of commercial law. Continue reading "Money For Your Life: Understanding Modern Privacy"
