Yearly Archives: 2019
Feb 21, 2019 Sergio ParejaTrusts & Estates
In 2002, Professor Spitko published An Accrual/Multi-Factor Approach to Intestate Inheritance Rights for Unmarried Committed Partners in the Oregon Law Review. Since then, in 2006, Scotland statutorily began to provide intestate inheritance rights to unmarried cohabitants. Three years later, the Scottish Law Commission recommended reforming and replacing the 2006 law with rights for unmarried cohabitants that would apply to intestate and testate estates. Several years later, in March of 2016, the Justice Committee of the Scottish Parliament published Post-Legislative Scrutiny of the Family Law (Scotland) Act 2006. Professor Spitko analyzed these developments in Scotland and used them as a basis for reexamining his 2002 proposal.
I must admit that I am a huge fan of looking to other countries’ experiences for insight into our own legal system. I also think our intestacy laws need to be updated to reflect societal changes that have happened in recent years. As a result, I found Professor Spitko’s article to be fascinating. Continue reading "Lessons Learned From Abroad About Intestate Inheritances for Unmarried Cohabitants"
Feb 20, 2019 Jennifer WrigginsTorts
In basic tort damage doctrine, a person injured by a tort can recover lost wages. This means it costs less to harm some people than others. People who earn less, whether because of reduced educational opportunities, racism, geography, family responsibilities, or other factors, will suffer lower damages than people who earn more. Defendants (and insurance companies) will have to pay less to “make them whole.” This aspect of tort damages is in tension with, if not in contradiction to, the notion that—formally—everyone counts equally in torts. This tension rarely gets attention or critique, in part because tort damages are determined individually, usually through informal and private settlements
In one context of U.S. tort law, however, the relationship between damages and inequality is on the surface and subject to critique. When an injured individual lacks an earnings history, race-based statistical tables estimating wages, life expectancy, and work-life expectancy are still routinely used in calculating tort damage awards. African-American plaintiffs, as a result, receive lower damage awards than white plaintiffs in such circumstances. Many people are surprised to hear this practice endures, although scholars have criticized it for decades. Valuing Black Lives is the most detailed explanation yet published as to why the use of race-based tables in calculating tort damages is unconstitutional. It is a companion piece to the authors’ previous article, Torts and Discrimination, earlier reviewed in Jotwell. Valuing Black Lives is excellent. In this era of resurgent racism, it is also particularly timely. Continue reading "Can Damage Calculations in Tort Cases be Unconstitutional Because They Discriminate on the Basis of Race? Yes, and Here’s Why."
Feb 19, 2019 Tal ZarskyTechnology Law
As more and more of our daily activities and private lives shift to the digital realm, maintaining digital security has become a vital task. Private and public entities find themselves in the position of controlling vast amounts of personal information and therefore responsible for assuring such information does not find its way to unauthorized hands. In some cases, there are strong incentives to maintain high standards of digital security, as security breaches are a real pain. When reports on such breaches are made public, they generate reputation costs, lead to regulatory scrutiny and often call for substantial out-of-pocket expenses to fix. Unfortunately, however, the internal incentives for maintaining high security standards are often insufficient motivators. In such cases, the security measures taken are unfitting, outdated and generally unacceptable. These are the instances where legal intervention is required.
There are several possible regulatory strategies to try and improve digital security standards. One option calls for greater transparency regarding breaches that led to personal data leakage and other negative outcomes. Another option calls upon the government to set data security standards and enforce them, at least in key sectors (more on these two options and their limitations, below). Yet an additional central form of legal intervention is through private litigation and the court system. However, key doctrinal hurdles in the United States currently make it extremely difficult to sue for damages resulting from security breaches. In an important recent paper, Daniel Solove and Danielle Citron, two prominent privacy scholars, explain what these hurdles are, how to overcome them, and why such doctrinal changes are essential. Continue reading "Data Breach Harms—Bringing in the Courts, or Leaving Them Out?"
Feb 18, 2019 Kim BrooksEquality
Feminist judgments projects originate in Canada. The initial Canadian project saw six equality decisions rewritten by ten women. The aim: to see if equality under the Canadian Charter of Rights and Freedoms would be interpreted and applied differently if feminists were authoring the decisions. Since that time, projects have proliferated, with volumes produced in England and Wales (Margaret Davies reviewed that volume in Jotwell in 2012), Australia, the United States, Ireland and Northern Ireland, and Aotearoa New Zealand. The Canadians enjoy the exercise of rewriting equality judgments enough to have offered a second cluster of decisions last year. And new volumes are expected from jurists in Africa, India, and on International Law.
The first volume of American re-writes focused on decisions of the US Supreme Court. Surprising only to people who do not teach tax, the next volume of American re-writes takes up tax opinions. Released on December 28, 2017, as an invitation to continue holiday festivities, a volume edited by Bridget Crawford and Anthony Infanti serves up a veritable buffet of delights. Eleven rewritten American tax opinions comprise the volume. Six are rewritten Supreme Court decisions, one if a rewritten federal circuit court opinion, and four are rewritten Tax Court opinions. Continue reading "“Will Feminist Judges Really Make a Difference?”"
Feb 15, 2019 Kathleen DeLaney ThomasTax Law
Jacob Goldin,
Tax Benefit Complexity and Take-Up: Lessons From the Earned Income-Tax Credit, available at
SSRN.
One dilemma for policymakers is how to get people to take advantage of social welfare programs. In the case of the Earned Income Tax Credit (“EITC”), the goal is to encourage eligible individuals to claim the credit on their tax return. Take-up rates for the EITC are quite good (about 80% overall), but ideally would be higher. Typically the approach to increasing EITC take-up is information campaigns, like EITC awareness day. The conventional wisdom has been that the more people know about the EITC, the more likely eligible recipients are to claim it. But is it right that advance notice is important? If people use tax software that will automatically calculate the EITC for them, how important is it that they are made aware of the benefit ahead of time? Perhaps not very, as suggested by Jacob Goldin in his forthcoming article, Tax Benefit Complexity and Take-up: Lessons from the Earned Income Tax Credit.
The key insight from Goldin’s article is that in the modern age, virtually anyone who files a tax return is presented with the opportunity to claim the EITC. This is because the vast majority of taxpayers—96 percent in 2015 according to Goldin—use assisted preparation methods (“APMs”) such as self-preparation software or a tax return preparer. Using either of those methods, it is extremely unlikely to fail to claim the credit accidentally. (Though, as Goldin notes, some taxpayers may consciously choose not to claim the credit even though they are eligible.) The paper’s main conclusion is logical yet important: people who are eligible for the EITC but who fail to claim it are generally people who fail to file returns at all. Thus, if policymakers want to increase EITC take-up, they must increase the filing rate. Continue reading "Increasing EITC Take-up in the Age of TurboTax"
Feb 14, 2019 Eric BiberLexEnvironmental Law
The recent report from the Intergovernmental Panel on Climate Change this fall has made clear the urgent need to address climate change. What should be the primary policy tool that we use to address the problem? Economists have vociferously advocated for the use of carbon taxes or cap-and-trade permit systems, on the grounds that they provide the most efficient way to decarbonize global economies. Yet carbon taxes have had little success in the political arena. Many of the existing policies that countries and states have used to address carbon emissions have been regulations or subsidies, not market-based approaches. Is this a fundamental misstep on the part of policymakers?
In her recent article, Energy, Governance, and Market Mechanisms, Alice Kaswan argues that this is not a misstep, and that in fact there are good reasons—political, democratic, even economic—to prefer non-market-based instruments to advance decarbonization. Her article is ambitious in its scope but effective in raising important questions about what approach is best. Continue reading "Should We Use the Market to Address Climate Change?"
Feb 13, 2019 Shelley Ross SaxerProperty
Stephen R. Miller, Jaap Vos & Eric Lindquist,
Informal Governance Structures and Disaster Planning: The Case of Wildfire,
__ U. Ark Little Rock L. Rev. __ (forthcoming 2019), available at
SSRN.
Are fire-prone communities in the western United States pondering whether they should follow the lead of the Finnish people and begin raking their forests? Doubtful, but how should they prepare for the ongoing threat of increasing wildfires brought on by climate change?
A new article by Stephen R. Miller, Jaap Vos, and Eric Linquist offers a framework for wildfire planning that engages rural communities using informal governance structures currently in place. As state and local governments become more proactive in responding to the local impacts of climate change, it is vital that we develop tools to deal with the ongoing disasters that will continue to impact our communities. Continue reading "Planning for Wildfire Disasters"
Feb 12, 2019 Jay TidmarshCourts Law
A series of mostly hostile Supreme Court and court of appeals decisions, combined with the Court’s unwillingness to rein in boilerplate arbitration clauses in consumer agreements, has led a number of scholars to proclaim that class actions are dead, or at least dying. While appreciating that this framing puts the unquestioned decline of class actions into stark relief, I have been skeptical of the narrative. The recent amendments to Rule 23, for instance, show that policymakers still believe that class actions have salience, and the myriad state-court class actions that fly beneath the jurisdictional radar of the Class Action Fairness Act belie the class action’s demise.
In some retellings of the “class actions are dying” narrative, the ironic suplot is the rise of class-action practice in the rest of the world. Until recent years, only countries with a common-law heritage employed class actions, and even among those countries, only the United States used them with regularity. Over the past ten to fifteen years, however, many countries (I recently counted almost forty, and I was not attempting a comprehensive survey) have established some form of class or collective action. The terms of these processes vary across numerous measures: who can bring suit, for what types of claims, whether members must opt in or may opt out, and so on. But the moral of the subplot is that, just as American courts are moving away from one of the signal features of American procedural exceptionalism, the rest of the world is embracing the device.
The new volume from Hodges and Voet throws some shade on this subplot, and at the same time adumbrates a future in which class actions might indeed wither away. Continue reading "Building a Better Mousetrap"
Feb 11, 2019 Sean CoyleJurisprudence
This important and impressive new book by Roger Cotterrell represents a new and original perspective on legal theory, building considerably upon the author’s previous, justly celebrated, work. It calls for a “sociological jurisprudence” (not a mere sociology of law) and for a reorientation of jurisprudential study as a form of social inquiry. The book is not likely to please all jurisprudential scholars, but all should read it and will profit from doing so.
The book is divided into three parts: first, concerning the ‘juristic point of view’; second, transnational legal theory; and third, on “legal values.” I will very briefly explore each in turn. Continue reading "A New Jurisprudence?"
Feb 8, 2019 Jennifer ChaconCriminal Law
Trevor Gardner,
Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform, 46
Fla. St. U. L. Rev. __ (forthcoming 2018), available at
SSRN.
Two important law reform conversations are taking place on largely parallel tracks. One is a conversation about criminal justice reform. The other is a conversation about immigration enforcement. Occasionally, those conversations overlap, but for those who work at the intersection of criminal and immigration law, one source of surprise is how rarely this is the case.
Many of the arguments made in support of criminal justice reform forward apply in the immigration context as well. In both spheres, we see racial disproportionality in enforcement, the inability of criminal punishment to deter conduct driven by unaddressed root causes, and the mounting social costs of punitive systems that needlessly separate families and sunder social networks. In both arenas, private companies profit from and lobby for policies that increase incarceration, surveillance and new-widening rehabilitative programs. And yet the immigration enforcement system—and particularly its racial dimensions—are naturalized and normalized in ordinary political discourse. Conversations around immigration enforcement sound like the conversations about criminal enforcement in the mid-1990s (or in the White House now), with a common-sense consensus, against all evidence, that the nation needs to nurture and expand an expensive, discriminatory and dehumanizing system of enforcement. In his article Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform, Trevor Gardner deftly shows how useful it is to integrate these conversations, particularly because the structure of immigration enforcement that the federal government has created over the past ten years essentially ensures that reform efforts aimed at one of these systems cannot succeed completely without reform to the other. This is perhaps not the primary point of Gardner’s article, which is more centrally concerned with developing a theory of appropriate sub-federal resistance to federal criminal enforcement overreach. But the article manages to shed light on a broader range of questions than Gardner takes on. Continue reading "Local Resistance and Criminal Law Reform"
