Monthly Archives: July 2020

Countermovements to Reinstate Countervailing Powers

No, law does not necessarily lag behind technological development. No, smart technologies are not destined to lead the road to either freedom or surveillance. Determinisms of any kind are not what make Julie E. Cohen’s Between Truth and Power: The Legal Constructions of Informational Capitalism a great sensitizer to the mutual transformations that law, economy, power and technology affect.

Instead, the underlying thesis of the book is that to come to terms with the systemic harms of informational capitalism, we need to develop a keen eye for the precise way that legal rights, duties, immunities and powers are deployed and reconfigured to enable the move from a market to a platform economy —while also detecting the emergence of novel entitlements and disentitlements outside Hohfeld’s framework. Steering clear of both technological and economic determinism, Cohen argues that the instrumentalization of legal institutions by powerful economic actors requires new types of Polanyian countermovements, to address and redress outrageous accumulation of economic power. Continue reading "Countermovements to Reinstate Countervailing Powers"

Discriminatory Impacts of Facially Neutral Copyright Laws

Robert Brauneis, Copyright, Music, and Race: The Case of Mirror Cover Recordings, available at SSRN.

Several scholars have shown that while copyright law may appear facially race-neutral, in its application many of its provisions perpetuate systemic discrimination, particularly against African American creators. K.J. Greene, Funmi Arewa, and Candace Hines have each argued that seemingly harmless features of copyright law can interact with industry practices to operate to the disadvantage of African American authors. The pre-1978 copyright statutes, for example, required authors to navigate a series of formalities in order to vest their exclusive rights. Greene has shown that these provisions tended to deprive copyrights disproportionately to African American authors, who were less likely to have access to legal information and advice necessary to navigate the requisite technicalities.

Bob Brauneis’ article, Copyright, Music, and Race: The Case of Mirror Cover Recordings, builds on this work by providing a detailed case study of one particular instance in which apparently race-neutral copyright law combined with entertainment law norms to discriminate against African American creators: the so-called “mirror” cover recording, a practice where white performers would create nearly identical versions of sound recordings by African-American artists. Brauneis’ work consciously styles itself as an effort at historical recovery, which is valuable because it revivifies a time in the history of the music industry that has been largely forgotten. Continue reading "Discriminatory Impacts of Facially Neutral Copyright Laws"

Raising Revenue by Taxing Capital

Mark Gergen, A Securities Tax and the Problems of Taxing Global Capital (June 2, 2020), available at SSRN.

The federal government’s spending to try to contain the economic fallout from the COVID-19 pandemic already approaches $3 trillion. It will cause U.S. national debt to exceed GDP for the first time since World War II. The current crisis has emphasized deep distributive justice concerns and raised calls for more public spending to help address them. Such public spending is important and necessary, but there is a question of how to pay for it. Taxing wealth and capital income can be part of the solution. These are systematically undertaxed, even though careful analysis demonstrates that wealth taxation would not create an unacceptable drag on the economy.

Within the broad wealth and capital income tax literature, Mark Gergen’s work offers a particularly clever and tidy approach to taxing capital. He proposes a securities tax to reach capital touched by the public market. This tax would be collected and remitted by market participants like public corporations. A complementary tax on imputed normal returns would reach private capital. Gergen recently posted A Securities Tax and the Problems of Taxing Global Capital, which describes international issues raised by his proposal. This paper follows on a 2016 article, How to Tax Capital, which covers the fundamentals of his idea. Continue reading "Raising Revenue by Taxing Capital"

Legacy Control

Andrew Gilden, The Social Afterlife, 33 Harv. J. L. & Tech. 229 (2020), available at SSRN.

The COVID-19 crisis has compelled many of us to move our lives (further) online, creating new social interactions and communities, as well as a larger digital footprint. The pandemic has also forced us to confront the risks and realities of mortality for ourselves and our loved ones.  This highlights an important question: What will happen to our digital legacy after death? Legacy has both economic and noneconomic aspects, and inheritance law has primarily focused on the former. The latter, however, has risen to prominence with the growth of intellectual property rights and social media, both of which often have a stronger cultural or emotional legacy component.  The law as it stands is thus ill-suited to deal with the noneconomic aspects of legacy. In The Social Afterlife, Professor Andrew Gilden tackles this problem with skill and nuance, and his sensible solution is to embrace contextual testation, in which control of each asset is allocated based on the unique socioeconomic context in which it arose. In the process, he provides the reader with an indispensable theoretical roadmap for understanding who might control our legacies.

The Article starts by describing four potential models of legacy stewardship. The first is the traditional model of freedom of disposition, in which the decedent controls who gets what. The decedent possesses the best information about their own social life, but such deference also risks too much dead hand control. The second model is family inheritance, in which control flows to the decedent’s family members. These individuals may also have special knowledge about the decedent, but are also tempted to exclude other relevant stakeholders in the decedent’s legacy, as many celebrity estates have. Empowering family members also hazards their exposure to harmful aspects of a decedent’s life hiding in cyberspace. Does a grieving widow want to know about her husband’s account, on which he may have been pursuing affairs with younger women? Continue reading "Legacy Control"

Just Compensation and the Jury

Wanling Su, What is Just Compensation?, 105 Va. L. Rev. 1483 (2019).

The Fifth Amendment’s Takings Clause provides “nor shall private property be taken for public use without just compensation.” The Takings Clause therefore raises three distinct legal questions: First, when has property been “taken,” triggering the just compensation requirement?  This is the question raised in “regulatory takings” cases. Second, to what extent does the clause prohibit takings except for “public uses”? This is the question raised in “public use cases,” when the government takes property by eminent domain with the intention of transferring it to a private party.1 These first two questions receive the most scholarly attention.

In the recent article What is Just Compensation?, Wangling Su provides a deep historical analysis and unique process-based focus on the third question triggered in Takings Clause analysis—what amount of compensation for property that is taken is “just”? This is the question raised whenever the government takes property, by eminent domain or otherwise, and property owners are entitled to be compensated for their loss. Continue reading "Just Compensation and the Jury"

Private Debt and Public Violence

At the time that I am writing this Jot, in late May 2020, the unemployment rate has climbed above 14%; COVID-19 has once again exposed persistent racial health disparities, and in the wake of the murders of George Floyd, Ahmaud Arbery, and Breonna Taylor,  communities across the U.S. are rising in protest. Real too is that our country’s small (and largely regressive) provision of economic support, to those whose tentative hold on security was ripped out from under them this Spring, has all but dissolved. Given this searing new reality, one might think that counsel from scholars about the absurdity and cruelty of placing the burden of economic desperation on poor communities themselves would no longer be needed.  Who would think, today, that the very communities of color reeling the most should shoulder the cost of their economic survival? Surely we are thinking more radically and more generously than that. But history does not counsel optimism.  We know that neoliberal inequality functions through a pernicious combination of potent racialized myths and vigorous punitive and extractive legal systems.

So in this jot, written at this particular moment, and as one very small response to all that is unfolding around us, I want to highlight two pieces of scholarship that lay bare the viciousness of one aspect of those neoliberal systems: Tonya Brito’s The Child Support Debt Bubble and Abbye Atkinson’s Rethinking Credit as Social Provision. Both pieces critique social welfare policy that puts the burden of economic security onto the shoulders of those least able to sustain it. Without question, both pieces are exquisitely well done, and if this were normal times, my jot would focus entirely on what these papers argue and their undeniable strengths. And certainly all that is in order, but what I want to focus on, after summary and praise, is the relationship between private debt and public violence. Continue reading "Private Debt and Public Violence"

Understanding Lawyer Regulation Initiatives: Is there a Sweet Spot for Achieving Client-Focused Lawyer Regulation?

Leslie C. Levin, The Politics of Lawyer Regulation: The Malpractice Insurance Example, 33 Geo. J. Legal Ethics __  (forthcoming, 2020), available at SSRN.

If you ask most individuals why lawyers have a monopoly on the provision of legal services and why lawyer regulation exists, I suspect they would answer that lawyer regulation is necessary for “client protection.” Assuming this is correct, it is ironic that most U.S. jurisdictions do not require one of the most basic kinds of protection. Unlike lawyers in many other countries,1 most U.S. lawyers do not have to carry malpractice insurance, which could protect clients in the event of lawyer error.

Although several U.S. states have recently examined the issue of whether malpractice insurance should be mandatory, only two U.S. jurisdictions currently require lawyers to carry professional liability insurance. Oregon has had this requirement since 1977, and Idaho has had this requirement since 2018.  Professor Leslie Levin’s article on The Politics of Lawyer Regulation: The Malpractice Insurance Example, which will be published soon in the Georgetown Journal of Legal Ethics, is a case study that examines and compares the mandatory malpractice insurance initiatives in these and other states. Her thorough and insightful article makes a compelling read, not only for those who are interested in the malpractice insurance issue, but also for those who are interested in other lawyer regulatory issues and wonder why some reforms succeed, whereas others fail. Continue reading "Understanding Lawyer Regulation Initiatives: Is there a Sweet Spot for Achieving Client-Focused Lawyer Regulation?"

Deconstructing the Foundational Mythologies of American Legal Empire

The intertwining of American foreign policy and American law has been a renewed topic of historical interest in recent years, with specific focus placed on the United States’ emergence as a global power at the turn of the 20th century. Rande Kostal’s Laying Down the Law dives deeply into perhaps the two most enduring symbolic episodes that came to shape popular and elite understanding of the place of American law in what many now call America’s informal empire: the post-World War II American occupations of Japan and Germany. Almost every subsequent American military action has to some degree invoked these interventions as precedents to justify efforts to export American legal models to foreign nations. For those working in this vein of international legal history, Kostal’s work has thus been long anticipated.

Kostal examines one aspect of the occupations of Japan and Germany comparatively within each of his six substantive chapters. His first two chapters deal with the details of the planning and occupation of each country, respectively, and his last four chapters the substance of reforms in constitutional law, court organization, criminal justice, and civil liberties. Undergirding all of these efforts was a general presumption that American liberal legality and the rule of law were central to American democracy and, thus, to democratization abroad. Conversely, there was a presumption that fascism and international belligerence sprung from the rejection of such values. Continue reading "Deconstructing the Foundational Mythologies of American Legal Empire"

Deontic Logic and the Philosophy of Law

Robert Mullins, Legal Positivism and Deontic Detachment, 31 Ratio Juris 4 (2018).

It is curious that Anglophone philosophers of law (many of whom have had some training in logic in conjunction with the classwork required for a Ph.D.) ignore deontic logic — the branch of logic that deals with propositions that employ normative concepts like obligation and permission. The point is not that deontic logic can answer problems in the philosophy of law, but that it can help reveal them. This very short paper by Robert Mullins is a wonderful example. It concerns the apparent incompatibility between a commonly accepted inference rule in deontic logic, deontic detachment, and the core principle of positivism, the social thesis.

According to deontic detachment, the following reasoning is valid (if the premises are true, the conclusion must be true): Continue reading "Deontic Logic and the Philosophy of Law"

Our Reinsurance Moment

Govind Persad, Expensive Patients, Reinsurance and the Future of Health Reform, 69 Emory L.J. __ (forthcoming, 2020), available on SSRN.

We are in the midst of a health reinsurance “moment” right now. The idea of reinsurance, and in particular, government-sponsored reinsurance, rises to the fore in cycles, and our current rash of state-based reinsurance proposals signals that we’re in the ascendant phase. Reinsurance is at once a clever technocratic device but also a powerful conceptual frame. In the health context, government-sponsored reinsurance can take the form of a policy where the reinsurer, in this case the government, assumes the obligation to pay claims incurred by a given beneficiary once those claims exceed an annual attachment point. CMS has, for example, built in a de facto reinsurance policy for ACA plans, kicking in 60% of medical costs for any ACA plan enrollee who has incurred over a million dollars in claims. As you can see from this example, the primary insurers with this reinsurance protection are partially shielded from the risks of large catastrophic claims requiring excessive capitalization.

But government reinsurance also represents the distinctive structure of public-private power in our era.  How is risk backstopped today, and under what conditions? When does an outcome count as catastrophic such that our existing risk management institutions cannot be expected to absorb it or hold reserves to meet it? Who gets a bail-out, and who must take the consequences of their bad bets? The question of who enjoys government reinsurance is a lens that helps us penetrate many of the mysteries of our current political situation.

Part of my engagement with the reinsurance moment is the pleasure I take in discovering interesting writing, past and present, on the subject of reinsurance. A new and enjoyable entrant in this category is Govind Persad’s new article, Expensive Patients, Reinsurance, and the Future of Health Care Reform, forthcoming in Emory Law Journal. Continue reading "Our Reinsurance Moment"

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