Monthly Archives: April 2020

When Agencies Do Not Not Have Statutory Power to Regulate

William W. Buzbee, Agency Statutory Abnegation in the Deregulatory Playbook, 68 Duke L.J. 1509 (2019).

When a President who campaigned on a deregulatory platform assumes office, the question immediately arises whether, in light of the unlikelihood of significant statutory assistance by Congress, the new administration will be able to achieve substantial deregulation on its own. In most contexts, agencies looking to ease regulatory burdens have essentially two options: they can engage in a reappraisal of the regulatory record (like the Reagan administration’s failed attempt to rescind the passive restraint requirement for new automobiles), or they can reinterpret the statute or statutes underlying a regulatory program (such as the same administration’s successful reform of the regulation of “stationary sources” of air pollutants), or both.

In the most exotic permutation of the latter method, employed more by the Trump administration than any previous administration, agencies have occasionally argued that their predecessors lacked statutory power to regulate as they did, leaving them no legal choice but to abandon a prior administration’s regulatory program. In Agency Statutory Abnegation in the Deregulatory Playbook, William Buzbee describes, analyzes, and dissects this “statutory abnegation” strategy, and persuasively illustrates that it has been and is likely to remain unsuccessful without major changes to basic principles of administrative law. Continue reading "When Agencies Do Not Not Have Statutory Power to Regulate"

Taxing “Takers”

Lily Batchelder, Leveling the Playing Field between Inherited Income and Income from Work through an Inheritance Tax, in Tackling the Tax Code 48 (Jay Shambaugh & Ryan Nunn eds, 2020).

In Leveling the Playing Field between Inherited Income and Income from Work through an Inheritance Tax, Lily Batchelder proposes that our current estate and gift transfer taxes be abolished and that gifts, inheritances, and bequests in excess of a lifetime exemption and various annual exclusions instead be includible for both income and payroll tax purposes. She would require constructive realization of large accrued gains on gifts and bequests and repeal of carryover basis and stepped-up basis for such gains as well. To avoid forcing the sale of family farms and businesses, she would allow heirs to defer indefinitely the resulting taxes to the extent they exceed the heirs’ liquid assets, minus a cushion of $500,000. She would also permit taxable inheritances to be spread over five years to minimize bracket shift problems. Finally, to address the avoidance problems that currently plague our transfer tax system, she proposes a series of reforms to rules governing the timing and valuation of transfers through trusts and similar devices. The Urban-Brookings Tax Policy Center estimates that if the lifetime exemption were $2.5 million, Batchelder’s proposal would raise $34 billion per year; if the lifetime exemption were $1 million, $92 billion per year; and if the lifetime exemption were $500,000, $140 billion per year. By comparison, our current transfer tax system raises about $16 billion per year.

Batchelder’s thorough exploration of the problem includes: extensive empirical background; critical examination of the technical, economic, and ethical issues raised; and comprehensive proposed transition and reporting rules. It is essential reading for both tax specialists interested in the relationship between income and wealth taxation and lay readers concerned about addressing increasing wealth, income, and political disparities in the United States in a manner consistent with American political values. Continue reading "Taxing “Takers”"

Socialization at Work and #MeToo Backlash

Zoe Cullen and Ricardo Perez-Truglia, The Old Boys’ Club: Schmoozing and the Gender Gap, NBER Working Paper No. 26950 (Mar. 2020).

As the #MeToo movement has matured, researchers have begun to observe a second-order effect of the mass public calling-out of sexual abuse, harassment, and misconduct: the use of “defensive” tactics by male workers and managers to reduce contact with women at and outside of work, meant to avoid potential #MeToo claims. Such tactics might take the form of a “Mike Pence rule,” referencing the U.S. Vice President’s refusal to dine with a woman alone or attend an event with alcohol outside the presence of his wife, or a manager’s decision to pull back from a mentoring relationship with a junior female colleague.

Indeed, in a survey of 152 men and 303 women across industries, organizational psychologist Leanne E. Atwater and her co-authors found that one-third of male respondents reported reluctance to have a private meeting with a woman, post-#MeToo.1 Likewise, twenty-two percent of men and forty-four percent of women predicted that women would be excluded from work-related social interactions like gatherings for drinks after work.2 Another survey administered by found that sixty percent of male managers reported discomfort working alone with, mentoring, or socializing with women colleagues, an almost one-third jump from the prior year. Continue reading "Socialization at Work and #MeToo Backlash"

End-of-Life Health Care Decision Making: Lessons for Wills, Trusts and Estates Law

Jane B. Baron, Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making, 87 Tenn. L. Rev. __ (forthcoming, 2020), available at SSRN.

For years, I have tried to understand why my father refuses to execute a will or an advance directive, even though my sisters and I have asked him to please “make plans for the future.” As a not-so-subtle nudge, I have told him stories of siblings torn apart by disagreements over health care decisions when a parent is incompetent and disagreements over property distribution after a parent’s death—family feuds that might have been prevented by an advance directive or a will, respectively. After reading Jane Baron’s article, Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making, I have a clearer understanding of the reasons that might underlie my father’s reluctance.

In the article, Baron challenges estates law’s fundamental assumptions that: (1) all or most individuals have intentions with regard to the disposition of their property at death, (2) these intentions are fixed, and (3) these intentions should be recorded in a written document. Drawing on studies of end-of-life health care decision making that explain why efforts to increase the use of advance directives have failed, Baron concludes that similar reasons may apply in the property distribution context. Specifically, she argues, if some individuals do not care to make decisions about their medical treatment should they become incompetent, it is likely that some individuals similarly do not care to make decisions about disposition of their property after death. Continue reading "End-of-Life Health Care Decision Making: Lessons for Wills, Trusts and Estates Law"

The Letter (and Emoji) of the Law

Eric Goldman, Emojis and the Law, 93 Wash. L. Rev. 1227 (2018).

Eric Goldman’s Emojis and the Law is 🔥🔥🔥. If you don’t know what that sentence means, then Goldman’s article is a perceptive early warning about a problem that will increasingly confront courts. Any time legal consequences turn on the content of a communication, there is a live evidentiary question about the meaning of the emoji it contains. Has a criminal defendant who uses 🔫 in an Instagram post threatened a witness? Has a prospective tenant who uses 🐿️ in a text message agreed to lease an apartment? To answer these questions, lawyers and judges must know what emoji are and how they work, and Goldman’s article is the beginning of wisdom.

Even if you did know that the Fire emoji means that Emojis and the Law is “hot” in the sense of Larry Solum‘s “Download it while it’s hot!” Goldman raises deeper questions. How did you learn this meaning? Is it reliably documented in a way that briefs and opinions can cite? What about the fact that the “same” emoji can look dramatically different on an iPhone and on a PC? In short, the interpretation of emoji is problematic in a way that ought to make legal theorists sit up and pay attention. Continue reading "The Letter (and Emoji) of the Law"

A Practitioner’s Guide to Addressing Rural Blight

Ann M. Eisenberg, Rural Blight, 13 Harv. L. & Pol’y Rev. 187 (2018).

Blight—empty and decaying buildings that harm their communities—receives significant attention from politicians and wonks alike. President Trump’s inauguration speech referenced “rusted-out factories scattered like tombstones.” Think tanks like Pew discuss blight’s harmful effects today much as groups like RAND did decades ago. Yet when blight is discussed, it is almost inevitably preceded by the same adjective: urban. And more insidiously, the term historically implied a particular target for removal: communities of color. The literature rarely acknowledges blight in rural areas and even less frequently prescribes solutions tailored to rural spaces.

Ann Eisenberg’s aptly-named Rural Blight is a welcome effort to fill this gap and builds on the author’s earlier work. Eisenberg’s approach is systematic. She first defines the problem. Then, she diagnoses its primary causes. Lastly, she prescribes solutions. This last step is the piece’s chief virtue. As my title suggests, Eisenberg’s analysis is deeply practical, identifying real challenges that rural governments face while pinpointing solutions learned in other communities. Policymakers at the local, state, and regional levels have much to learn from Eisenberg’s piece. Continue reading "A Practitioner’s Guide to Addressing Rural Blight"

Fight the Power

Ramsey Clark is a bit of a mystery. As Attorney General, Clark fought diligently for civil rights. He began his career as an insider who was independent and critical but seemed to respect the institutions in which he worked. The son of Supreme Court Justice Tom Clark, he made enemies when he served in the Johnson administration, but he was hardly radical. When he left government work, however, his practice took an unusual turn for a lawyer of his stature and pedigree. Like the famous leaker of the Pentagon Papers, Daniel Ellsberg, Clark went from consummate insider to unyielding government critic. He went on to represent infamous clients like Saddam Hussein, the Palestinian Liberation Organization (PLO), and President of Syria Bashar Al-Assad. He also defended two former Nazis in deportation proceedings and stood by Elizaphan Ntakirutimana, a Hutu clergyman accused of luring Tutsis to their slaughter during the Rwandan genocide. Conducting these representations with skill, Clark often seemed fond of his clients, kind and even admiring at times. All the while, he relentlessly criticized the United States for its cruelty and hypocrisy.

In this biography of Clark, author Lonnie T. Brown, skillfully leads us through his subject’s life and career, giving us clues as to why Clark turned into such an unyielding critic of his country. Clark was involved in so many major events in American history that the book offers a unique perspective on the last sixty years. But Defending the Public’s Enemy is more than just a retelling of famous events in our past. Ramsey Clark’s unflinching independence offers insight into the role of the Attorney General, a particularly timely topic. His later career as a defense attorney and activist—representing some of the most notorious individuals—sheds new light on age-old discussions of how lawyers, especially the elite of the profession, should choose their clients, and how they can justify defending villains. Finally and most importantly, Clark’s transformation, his personal story, told directly to the author, is a story of the American Left. It helps us understand the political landscape in a way that most political and cultural histories cannot. Continue reading "Fight the Power"

Wrongful Gains from Data Breaches

Bernard Chao, Privacy Losses as Wrongful Gains, (forthcoming), available at SSRN.

Here’s the problem: data breaches are on the rise, but they may not cause provable losses. This gap exists because traditional legal theories do not adequately protect the privacy interests at stake. Should the law have a method for identifying and capturing wrongful gain from those breaches? If so, should private plaintiffs be able to strip such gains in order to undo unjust enrichment and deter opportunism? Bernard Chao articulates why the law of unjust enrichment and restitution present a viable pathway for plaintiffs to hold data breachers accountable by disgorging gains earned from the breach. As Chao’s article shows, the law of unjust enrichment will provide both a basis for a more viable cause of action and a preferred remedy. The preferred remedy is disgorgement of profits.

Chao effectively shows the need for this paper as well as the justification for the lure of restitution. The lack of familiarity with and misconceptions about this body of law make Chao’s task a difficult one. Redesigning the solution requires an appreciation of law that is beyond the working knowledge of countless law professors, litigators, and judges. Scholars bemoan data breach laws as insufficient. Some scholars and judges see data breach problems as governed by common doctrinal boxes such as tort, privacy, and contract law, and assume one or more of those boxes forecloses any ability to pursue unjust enrichment paths.  This limited conception needs to change. Unjust enrichment and restitution law is equally applicable, and ultimately, more advantageous as a pathway to recovery. Restitution has the ability to address the wrong, and shape an ideal remedy that overcomes otherwise insurmountable obstacles for the victims of data breach. It is not without limits. Once raised properly, judges and juries can effectively fashion the relief to avoid unjust enrichment. Chao’s work will go far in achieving this critical repositioning of the law of restitution. Continue reading "Wrongful Gains from Data Breaches"

The Real World

Diane P. Wood, Sexual Harassment Litigation with a Dose of Reality, 2019 U. Chi. Legal F. 395.

I love being a JOTWELL contributor, but I am going to be real with you. Writing a Jot in the midst of a pandemic is fraught. I sit at my computer, often paralyzed, while questions run through my mind, such as: How do I write about the latest and greatest law review article as if everything around us is normal? How do I conjure the energy to focus on great scholarship when in the back of my mind I am just, well, worried?

I do not have many answers right now. But I do know one thing for sure: This community that we have built—scholars who have a deep interest in justice and how it works within our civil court system—is an amazing one. I have watched with awe as you have taught your classes, written your work, and kept things going with amazing grace. I am grateful for all of you and I am honored to be a part of your world.

So, in this Jot, I am going to do something a little different. One idea behind JOTWELL was to be something of a time saver. Each Jot draws attention to a great piece of legal scholarship. Given the reality of our current time constraints, I want to focus your attention on a new University of Chicago Legal Forum, Law in the Era of #MeToo. The online forum includes several great pieces. One notable inclusion is Judge Diane P. Wood’s Sexual Harassment Litigation with a Dose of Reality. Continue reading "The Real World"

Should Courts Strike Down Improperly-Enacted Law?

Stephen Gardbaum, Due Process of Lawmaking Revisited, 21 U. Pa. J. Const. L. 1 (2018).

Although we have made substantial progress since the late nineteenth century in supervising the process by which sausages are made, we have failed to make any significant progress in supervising the procedures used by legislatures. Stephen Gardbaum recommends that we remedy this situation. He argues that courts should use the Due Process Clause to review the procedures by which laws are enacted, as well as reviewing the substance of the enactments. His title indicates that he is building on the path-breaking article by Hans Linde, Due Process of Lawmaking, published more than forty years ago. Professor Gardbaum breathes new life into the idea and invites us to think about a promising and innovative means of improving our much-troubled system of government.

Procedural due process, Professor Gardbaum argues, demands that all branches of government–legislative, executive and judicial–follow constitutional decision-making procedures in addition to reaching constitutionally acceptable results. The applicability of this principle to executive and judicial decisions is unchallenged, but the prevailing view is that it does not apply to legislation. Perhaps this is because legislation is promulgated by popularly-elected officials and thus regarded, contrary to Burke, as an act of will rather than an act of reason. Professor Gardbaum doesn’t challenge this view; his point is that actions carrying out the will of the legislators can also suffer from procedural defects that demand attention and correction. He offers two examples: if legislators decide between alternative proposals by flipping a coin, and if they enact legislation in return for campaign contributions. These examples reflect two general categories of procedural defects: legislating without sufficient reasons and legislating for the wrong reasons. Professor Gardbaum refers to the first category at several points. It includes a failure to state the rationale for a statute, the failure to provide any empirical basis for it, or the failure to subject it to open consideration and debate. But the primary focus of his article is on the second category–legislating on the basis of the wrong reasons, and specifically ones that are wrong because they are corrupt. Continue reading "Should Courts Strike Down Improperly-Enacted Law?"

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