Yearly Archives: 2020

Post-Koontz Exactions

Timothy M. Mulvaney, The State of Exactions, 61 Wm. & Mary L. Rev. 169 (2019).

Land-use regulation allows the government to condition approval of a land-use permit on the landowner’s surrender of a property interest (exaction) so long as there is an “essential nexus” and “rough proportionality” between the condition demanded and the anticipated impact of the proposed land use.  Professor Timothy Mulvaney has written extensively about the many legal and policy issues surrounding exactions and he continues to enlighten us in his new article, The State of Exactions.

Mulvaney reviewed the almost 130 cases in a five-year period that cited the Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District to illustrate the various ways in which lower courts have applied the Koontz holdings. Continue reading "Post-Koontz Exactions"

Parallel Universe Defaults

Gina-Gail Fletcher, Engineered Credit Default Swaps: Innovative or Manipulative?, NYU L. Rev. (2019).

Credit Default Swaps (CDS), like banks, are mind-blowingly simple and potent credit replication machines. Banks replicate their own credit—conjuring gobs of money out of thin air—with a license and a convoluted web of guarantees from the state. CDS can replicate anyone’s credit, with industry-coordinated standard contracts embedded in a tangle of carve-outs, safe harbors, and exemptions from statutes and regulations. The 2007-2009 financial crisis brought a heap of bad press and new regulatory requirements for CDS dealers and trading infrastructure, but did not fundamentally alter the contractual governance paradigm at the heart of this multi-trillion dollar market.

Opportunistic or downright slimy behavior in a space so carefully shielded from substantive regulation can be hard to diagnose, even when it poses an existential threat to the CDS market and could spill beyond it. Recent reports of bad behavior have prompted high-profile lawsuits, contract reforms, and a crop of law review articles revisiting contractual, statutory, and regulatory ecosystems for CDS.

The range of approaches reflects the multifaceted challenge, but can be confusing. Gina-Gail Fletcher’s analysis in Engineered Credit Default Swaps: Innovative or Manipulative? is thoughtful, comprehensive, and a good place to start. Continue reading "Parallel Universe Defaults"

Oyez! Robot

Richard M. Re & Alicia Solow-Niederman, Developing Artificially Intelligent Justice, 22 Stan. Tech. L. Rev. 242 (2019).

How and why does it matter that humans do things that machines might do instead, more quickly, consistently, productively, or economically? When and where should we care that robots might take our jobs, and what, if anything, might we do about that?

It is the law’s turn, and the law’s time, to face these questions. Richard Re and Alicia Solow-Niederman offer an excellent, pragmatic overview and framework for thinking about artificial intelligence (AI) in the courtroom. What if the judge is a (ro)bot? Continue reading "Oyez! Robot"

Writing Books Versus Journal Articles

Why write a book rather than journal articles? Insofar as we write for ourselves, it’s a function of the project. Some ideas for projects may best lend themselves to articles, but others may need to be book-length in terms of their scope. But we also write for other people, and one great thing about being an academic is that you have wide entrepreneurial choice regarding which audiences you wish to reach—be it in general, or project-by-project. There’s no right or wrong about it (well, maybe there are better and worse choices sometimes), any more than novels should all fit in a particular genre, or scientific research should restrict itself to a particular subject area or methodology. There’s also no right answer as between the aims of advancing knowledge, engaging in art for art’s sake, and attempting to improve the world—all of these enterprises have value, and of course they often overlap.

Two outstanding recent books by prominent tax economists—Kim Clausing and William Gale—show how attempting to improve the world can overlap with advancing the other goals noted above through clear, lucid, convincing explanation and analysis. For the most part, Clausing and Gale explain things that some people already know, in addition to passionately advancing viewpoints to which I am generally sympathetic, although of course not everything they say is wholly beyond debate. Both books reflect admirable project choices by scholars who have done important original research to focus on amalgamation and explanation this time around, in response to the bad place where our country is right now across multiple dimensions (not limited to current political headlines). Clausing and Gale successfully communicate an urgency that even hardcore art-for-art’s-sake devotees will respect and admire as showing the authors’ commitment to valuable public service. But the books are also very different, in ways that help to show the lack of any single formula for making signal contributions to our society and discourse as a public intellectual. Continue reading "Writing Books Versus Journal Articles"

Rethinking Uniformity in Statutory Interpretation

Ryan Doerfler, Can a Statute Have More Than One Meaning?, 94 N.Y.U. L. Rev. 213 (2019).

It is a persistent theme in statutory interpretation theory—one shared by textualists, purposivists, and intentionalists alike—that a statutory term must have the same meaning from case to case and from litigant to litigant. The word “knowingly” in the same statute cannot mean one thing as applied to Sally and another as to Jim. To hold otherwise, courts and scholars have agreed, would violate fundamental principles of fairness and stability and upend the rule of law. Yet in a provocative and compelling new article, Can a Statute Have More Than One Meaning?, Ryan Doerfler makes a convincing case for rethinking this conventional view and contemplating just such variability of meaning.

Like all of Doerfler’s work, the article is incredibly smart and forces one to think about statutory interpretation in a fresh and unorthodox manner. Building on the linguistic observation that speakers can and often do communicate different things to different audiences using the same words or written text, the article argues that there is no reason to assume that Congress does not do the same—and several reasons to assume that it does. Continue reading "Rethinking Uniformity in Statutory Interpretation"

Attention Supplicants

Ryan Copus, Statistical Precedent: Allocating Judicial Attention , __ Vand. L. Rev. __ (forthcoming 2020), available at SSRN.

Courts of Appeals in the United States are busy and, as numerous commentators and judges have pointed out, are unable to give many cases the attention they deserve. Attention supply and demand are currently grossly misaligned. Worse, there is little realistic hope of reducing the number of appeals or increasing the number of appellate judges. Appellate courts have responded by enlisting attention aids (e.g., more staff attorneys, more clerks), reducing attention commitments (e.g., fewer oral arguments, short and unpublished opinions), and reallocating attention from some types of cases to others.

These moves create numerous practical and normative problems. Perhaps most serious is that appellate judges systematically shortchange some types of cases (e.g., pro se, immigration, social security, and prisoner appeals) and lavish attention on other cases that have superficial markers of importance. Courts of appeals allocate their precious attention according to a cobbled-together set of proxies, heuristics, norms, historic practices, and shortcuts. None of this is to fault appellate judges; many seem unhappy with the current state of affairs and try their best with the limited resources that they have. But it is difficult to avoid the impression that the current hodgepodge of solutions is neither transparent nor efficient nor evenhanded.

Ryan Copus’ article is not the first to consider how courts can improve their ad hoc attention-triage systems, but he creatively pushes methodological boundaries to attack old problems from a fresh angle. He combines machine learning with an impressive dataset to answer how frequently appellate courts have reversed a particular type of case. Cases with low or high probabilities of reversal represent “easy” cases that typically merit little attention and are good candidates for a first look by staff attorneys. Cases in the middle represent “hard” cases that present opportunities to develop law and enhance predictability in the future. The article also uses traditional indicators of error to boost our confidence in the ability of the machine-learning-generated model to usefully predict error. Continue reading "Attention Supplicants"

An Honor or a Curse? The Untold Story of Shortlisted Female Jurists

Renee Knake Jefferson & Hannah Brenner Johnson, Shortlisted: Women in the Shadows of the Supreme Court (2020).

Legal scholarship that creates new avenues of inquiry is inherently appealing, but when it also reveals obscured narratives of power in American society, you have the makings of a truly important contribution. Shortlisted: Women in the Shadows of the Supreme Court, by Hannah Brenner Jonhson and Renee Knake Jefferson, is all that and an engaging read besides. In their book, Brenner and Knake resurrect the largely forgotten history of accomplished female lawyers nominated but not selected for the Supreme Court. As these narratives highlight the pitfalls of being shortlisted rather than selected, Brenner and Knake’s work queries whether the term “shortlisted” is pejorative rather than a boon for female candidates. The authors present the harm of historical obfuscation as compound: “it is not just that the women were denied positions of distinction, but that their tales have been subjugated…unfairly stifl[ing] national imagination.” (P. 133.) Compiling this history and bringing it forward alone would be enough to make the book worthwhile—but the project doesn’t stop there. Instead, Shortlisted also ambitiously engages with the question of how to sidestep such marginalization moving forward.

Throughout the book, stories of highly qualified female candidates who are summarily eliminated from contention or only facially considered for political cover pulls the distinction between consideration and appointment into stark relief. (One reporter quoted in the book notes, “The women…reflect another White House strategy: mentioning certain names to score political points, while not taking them seriously as contenders.”) (P. 122.) The book begins with a deep dive into the life of Florence Allen, a jurist “universally respected” for her work ethic and intellect, who was shortlisted by President Truman. She is not only the first person on the shortlist—in a way, she bookends Sandra Day O’Connor—but her downfall became Justice O’Connor’s entrée. Before nominating Judge Allen, Truman consulted with then-Chief Justice Fred Vinson about her potential nomination. Chief Justice Vinson negatively responded that the presence of a woman would inhibit needed deliberations amongst the men. As such, Judge Allen’s nomination stalled; she was shortlisted, more of an end game than a path forward. Only with this context, can one truly appreciate the weight that the law school friendship between Chief Justice Rehnquist and then-nominee Sandra Day O’Connor played in history.  If the two hadn’t been friends, would history have been different? Continue reading "An Honor or a Curse? The Untold Story of Shortlisted Female Jurists"

Our most significant instrument to deliver social and economic policy

Ariel Jurow Kleiman, Amy K Matsui and Estelle Mitchell, The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws (National Women’s Law Centre, November 2019).

Many legal scholars who care about social and economic equality spend time focusing on constitutional, anti-discrimination, criminal, or private law subjects; yet, a country’s tax code is the government’s most substantial tool for advancing social and economic policy. Its ramifications for equality are substantial.

Many tax scholars have uncovered the gender and race bias embedded in tax law. (Just to illustrate, see the work of terrific people like Dorothy Brown or Kathleen Lahey.) Yet, there has been surprisingly little change to codes around the world to bring them into conformity with the recommendations of those scholars. Perhaps Kleiman, Matsui and Mitchell’s report, The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws, will help. Continue reading "Our most significant instrument to deliver social and economic policy"

The Motion of the Ship and the Sea: Oceans as Method in Colonial Legal History

Renisa Mawani’s Across Oceans of Law tells the history of the infamously failed passage of the ship the Komagata Maru and the 376 (mostly Punjabi and mostly adult male) people on it who found themselves denied entry to Canada in 1914. The leader of the expedition, Gurdit Singh, a British subject originally from Punjab, insisted on the right to travel and trade on the “free sea,” “a common place that was beyond national and imperial claims to sovereignty.” (P. 5.) Yet, as Mawani puts it, “Britain’s ascendancy as a maritime empire was achieved through a juridification of the sea, advanced in legislation, treaties, agreements and in legal restrictions imposed on ships, passengers, and cargos.” (P. 5.) These restrictions included the “continuous journey” provision used in this case to deny entry to “Asiatic” immigrants seeking entry into Canada. The idea of the Canadian and imperial government was to force all steamship routes (e.g. from Calcutta to Vancouver) to stop in another port of call (e.g. Hong Kong) and then use the journey’s interruption to deny the ship entry into Canada. The law, while facially race-neutral, was only ever invoked against non-white settlers (primarily from India) and is now widely regarded as a thin veneer on an explicitly racist measure aimed at keeping “white Canada white.”

Audrey Macklin explains that “Britain strenuously discouraged the one colony (Canada) from employing explicitly racist exclusionary measures that would exacerbate agitation against British rule in another part of Empire (India).” Britain “preferred to contain Indian British subjects within India . . . the proliferation of diasporic networks of Indian colonial subjects . . . multiplied potential nodes of resistance” to British rule in India.1 Continue reading "The Motion of the Ship and the Sea: Oceans as Method in Colonial Legal History"

The Rule of Law and the Government’s Role in Our Lives

Joseph Raz, The Law’s Own Virtue, 39 Oxford J. Leg. Stud. 1 (2019).

More than forty years after his first take on the value of the rule of law, Professor Joseph Raz, in The Law’s Own Virtue, has recently revised his original view and given us an insightful and very sophisticated account of this political virtue, developing a framework that connects his theory of law with his moral philosophy and his neoclassical account of intentional actions.

Previously, Raz held that the rule of law was a formal value which concerns the particular ways by which the law must guide the behavior of its subjects. The rule of law was understood in a narrow way as “essentially a negative value” which was “designed to minimize the danger created by the law itself.”1 It was a value about what the government and its officials cannot do when they exercise power over their subjects. On this account, the point of the rule of law is to constrain government so the law can comply with its guiding function and enable the people it governs to go on with their lives and commit to valuable pursuits: “We value the ability to choose styles and forms of life, to fix long-term goals and effectively direct one’s life towards them.”2 And the basic idea of the rule of law is that governmental action, including adjudication and any act which produces particular directives, is subjected to “general, open, and stable” norms. One of the basic requirements of the rule of law is that “the making of particular laws should be guided by open and relatively stable general rules.”3 Continue reading "The Rule of Law and the Government’s Role in Our Lives"

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