Dec 21, 2021 Kristin HickmanTax Law
“Don’t sweat the small stuff” was one of my father’s favorite sayings. It’s the thought that has always come to my mind whenever thinking about, and teaching, de minimis rules in the tax code. De minimis rules keep the IRS from seeming petty, for example by allowing an employer that provides free bagels in the break room from having to report the bagels as income to its employees. De minimis rules also allow taxpayers to avoid complexity and hassle when the dollar amounts at stake are small, for example by permitting taxpayers to immediately deduct many small capital expenditures, rather than having to amortize or depreciate them over several years. In short, I have always thought of de minimis rules as making a hugely complicated tax system just a little easier to navigate, and perhaps just a little kinder. At worst, de minimis rules have always seemed fairly harmless — “the equivalent of rounding errors in the design of the tax law.” Reading The Surprising Significance of De Minimis Tax Rules by Leigh Osofsky and Kathleen DeLaney Thomas has forced me to rethink these long-held intuitions.
Osofsky and Thomas begin their analysis of de minimis tax rules with an overview and a typology of sorts. Functionally, some de minimis tax rules indeed eliminate taxpayer burdens and protect unsophisticated taxpayers from finding themselves ensnarled in complexity. The IRS also benefits in these instances, by avoiding enforcement and other administrative costs. Other de minimis tax rules, however, are simply the result of rent-seeking behavior and benefit only sophisticated taxpayers pursuing complicated transactions. While de minimis tax rules can protect taxpayers from complexity, they also create complexity. And sometimes, de minimis tax rules that seem small turn out not to be so small after all, whether due to unintended consequences or interpretative choices that expand their scope. Continue reading "Perhaps We Should Sweat The Small Stuff"
Dec 20, 2021 Cary C. FranklinConstitutional Law
In the 1980s, when conservative scholars first rallied around originalism, their questions often mirrored those of historians. Back then, originalists were interested in original intent, and traditional historical methods provided the most obvious means of discovering it. But intent-focused originalism encountered devastating critiques. Paul Brest noted the frequent impossibility of identifying a single coherent intention among the Constitution’s framers. Jefferson Powell argued that originalism itself was not originalist, as the framers did not intend for the Constitution to be interpreted in this way. Such critiques led most originalists to eschew intent and focus instead on original public meaning: how the Constitution’s words would have been understood at the time they were written. This shift has increasingly driven a wedge between originalists and historians, as originalists turn to tools such as electronic corpora to elucidate the meaning of the Constitution and reject historical inquiries not focused on textual meaning as irrelevant or an obstacle to valid interpretation. Originalist Randy Barnett suggests “[y]ou don’t need a PhD. in history” to discover the semantic meaning of words, even in the distant past. Historian Jonathan Gienapp claims originalism today “is an affront to all historians.”
Gienapp’s new article takes aim at contemporary public meaning originalism. It levels a critique that, if correct, has the same foundational impact on today’s originalism that Brest’s and Powell’s critiques had on earlier versions of the theory. Gienapp’s central claim is that the framers’ “conception of constitutional writtenness was worlds apart from” the conception of constitutional writtenness originalists now take for granted. No assumption is more foundational to contemporary originalism “than the idea that the Constitution is essentially a written text: that the Constitution just is the document written during the summer of 1787.” On this view, the Constitution had no content before it was written; it acquired its content only through express addition; and its text is the exclusive and comprehensive repository of such content. By assuming the Constitution just is the written text and nothing else, Gienapp observes, “originalists enable originalism to appear as an intuitive way to interpret it.” Continue reading "The Construction of an Originalist Constitution"
Dec 17, 2021 Yael LifshitzProperty
Property law scholarship is often framed in resource-agnostic terms. The field of Property is concerned, fundamentally of course, with governing “things.” But the conceptual or theoretical frameworks often assume they can apply equally to any and all resources.
Monika Ehrman challenges this notion in her recent work, Application of Natural Resources Property Theory to Hidden Resources. The key contribution of her article is in underscoring just how important the visibility of a resource (or actually, lack thereof) can be to the formation of property.
Ehrman hones in, specifically, on hidden resources. What are “hidden” resources? They are resources we can’t see with our naked human eye. This can include resources that are concealed from us because of their physical location. For example, subsurface reservoirs of oil, gas, and groundwater are all examples of hidden resources.
The category can also include resources that are not immediately apparent to us such as migration paths, solar radiation, and wind. The same category could also encompass property rights that are not evident to a casual viewer such as, potentially, security interests. Continue reading "Hidden Resources"
Dec 16, 2021 Steve GoldLexEnvironmental Law
When Bernard Goldstein speaks about the intersection of science and law in environmental policy, people listen. Or at least they should, in light of Dr. Goldstein’s distinguished record of scholarship, public service, and advocacy at this nexus. He is now in his sixth decade of writing about protecting public health from a vast array of toxic exposures. His latest contribution to that discussion is well worth reading and reflecting upon.
Readers should not be deterred by the article’s unwieldy title, nor by the prominent mention of a well-known person who skipped Joe Biden’s inauguration. Goldstein’s article is much more than a shooting-fish-in-a-barrel critique of an expired Administration. As Goldstein points out, a future similar assault on the scientific basis for environmental policy “is far from impossible,” and “not . . . from just one side of the political spectrum.” (P. 339.) So, rather than focusing on ideological differences and policy preferences, Goldstein attempts to explain the essential nature of such attacks and to suggest potential defenses. Continue reading "Taking Law’s “v.” Out of Environmental Policy Science (Again)"
Dec 15, 2021 Vivien HolmesLegal Profession
When Stephen Vaughan and Emma Oakley interviewed 57 lawyers in elite London firms, they were struck by a general ethical apathy. They explore this apathy in their well-known article, “Gorilla Exceptions” and the Ethically Apathetic Corporate Lawyer, and conclude that a strong justification for this apathy, in the minds of the lawyers interviewed, is the standard conception of legal ethics. The standard conception excuses lawyers from moral accountability for clients’ actions, holding that it is not the role of lawyers to judge the morality (as opposed to the legality) of clients’ actions. For the lawyers interviewed this justification, invoked most commonly in relation to criminal defence lawyers litigating within the confines of the adversary system, held, even though most if not all of them were engaged in transnational legal work, the consequences of which have effect across the world.
Cesar Arjona’s article, The Usage of What Country: A Critical Analysis of Legal Ethics in Transnational Legal Practice, questions whether the standard conception holds up in relation to transnational legal work. You may think you’ve heard all there is to hear about the standard conception, but I urge you to read Ajona’s article. He revisits the constitutive assumptions of the standard conception and asks whether those assumptions remain valid when applied to transnational practice. Spoiler, they don’t. Continue reading "Transnational Lawyers Need to Rethink their Legal Ethics"
Dec 14, 2021 Lael WeinbergerLegal History
Natural law is a topic that comes up frequently in legal history and legal theory but it has only rarely been the focus of study by American historians. Stuart Banner’s new book, The Decline of Natural Law, about how American lawyers used natural law and why they stopped doing so brings some welcome light to this important subject. A few years ago, the great historian of English law Richard Helmholz bridged the gap from Europe to America with his insightful volume Natural Law in Court. Banner picks up where Helmholz left off, to explore why practicing lawyers and judges stopped invoking natural law (and pointing to the nineteenth century as the key transitional period).
Natural law, as used in this book, refers to the idea that certain principles of law can (and ought to be) perceived by right reason in accord with the nature of things. This was often explained, historically, as a characteristic of God’s design for the world (though natural law as such was accessible to reason without any reliance on special revelation). The title of Banner’s book immediately tells us that his is a declension narrative. In the century-plus that is the focus of his book, natural law went from being a widely accepted part of American law to being rejected as unworkable and naïve. Continue reading "Telling the Story of Natural Law in America"
Dec 13, 2021 Alma DiamondJurisprudence
Rob Mullins,
Presupposing Legal Authority, __
Oxford J. Legal Stud. __ (forthcoming), available at
SSRN.In Essays on Bentham, Hart noted the importance of what he termed “authoritative legal reasons” to legal theory. In this idea–of reasons that apply to us independently of their content and in that special modality of foreclosing our normal deliberation–lies the “embryonic form” of legality. More simply put: law necessarily operates in the register of authority. This insight represents a foundational commitment held in common between various strands of legal philosophy, in part because of what Brian Bix has identified as a “hermeneutic turn”: theorists accept that an understanding of law must take account of the distinctive way in which it engages human agency and rational consciousness. Authority, as a practical concept, promises such an understanding of law.
The idea of law as a matter of authority plays an especially central role in positivist legal theory, in no small part due to Joseph Raz’s influential work on the topic. Raz and his many followers argue that law necessarily claims moral authority. We can see this, it is generally explained, in the deontic language used by legal officials (especially judges). And such claims to authority, Raz insisted, should be understood in moral terms. Much of recent positivist legal theory grapples with this final thesis: how can legal claims to authority be understood in moral terms, and what would that mean for the separation thesis? Rather less attention has been devoted to the first part: that law necessarily claims authority. In his forthcoming article, Presupposing Legal Authority, Rob Mullins calls this the “claim thesis.” He offers a long-overdue, thorough, and incisive scrutiny of the thesis. In doing this, he also invites us to revisit our understanding of the authority of law. Continue reading "Revisiting Law’s Claim of Authority"
Dec 10, 2021 Julia HainesIntellectual Property Law
Camilla Alexandra Hrdy,
The Value in Secrecy (Sep. 16, 2021), available at
SSRN.
What makes a secret a trade secret worth enforcing? Trade secrets have traveled a bumpy path from the basis for a common law gut feeling about unfair competition to a federally enforced intellectual property right. Because almost any kind of “information” can be a trade secret, trade secret doctrine has a reputation for being a fact-soaked free-for-all. This is especially true when compared to the contours of copyrights, trademarks, and patents, which are strict at least in theory.
In The Value of Secrecy, Professor Camilla A. Hrdy calls for legal rigor and, despite the reputation that trade secrets are an opportunity to air grievances about contract loopholes rather than valid assets, finds that rigor in the statutory text and in courts’ recent rulings. Her hot-off-the-presses article posits that “independent economic value” is, descriptively and normatively, a meaningful threshold for trade-secret eligibility. Although a reader unfamiliar with the ins and outs of trade secret law may get a bit lost in the nuances, Professor Hrdy’s article on this fast-developing doctrine also illuminates to the generalist both the divide between legal theory and legal practice and the importance of framing a narrative to fit a court’s expectations. Continue reading "Valuing a Higher Threshold for Trade Secrets"
Dec 9, 2021 Jaclyn NeoInternational & Comparative Law
Partly catalyzed by the #MeToo movement, there has been a renewed and re-energized interest in the intersection of law and gender in the past couple of years. Legal scholars, including critical scholars on gender, have long worked to critique discriminatory aspects of law, and women’s rights advocates have tirelessly sought to bring about greater gender equality for all around the world. Law and gender not only highlights abuses of power and crimes against women and other marginalized sexual groups but also asks how gender discrimination continues to hamper the development of women. And there are increasing calls from academics, policy-makers, and rights advocates for greater constitutionalization of gender equality. This renewed focus is to be welcome, in my view. Our conversations on law and gender should permeate all aspects in which law regulates society, and vice-versa.
One reenergized area of debate is a new orientation to gender and two other interrelated phenomena – populism and nationalism. In The Personal Is Political: The Feminist Critique of Liberalism and the Challenge of Right-Wing Populism, Gila Stopler takes on this important topic in an impressive and thought-provoking manner. She points out that the devotion of liberalism to structural claims of public-private, which continue to pervade how constitutional law is perceived, has now allowed “right-wing populism” to gain influence in several countries, with deleterious impact on the rights of women as well as that of other minorities. She places the blame on liberalism’s influence over constitutional design and discourse, critiquing Rawls’ political liberalism, primarily, and multiculturalism, secondarily, to reflect upon “structural and theoretical flaws within liberalism.” Continue reading "Gender, Populism, and the Constitution"
Dec 8, 2021 Christina S. HoHealth Law
Amy B. Monahan and Daniel Schwarcz,
Rules of Medical Necessity, 107 Iowa L. Rev. ___ (forthcoming, 2022), available at
SSRN.
In a must-read article, Amy Monahan and Daniel Schwarcz have teamed up to undertake, in their own words, an “exhaustive review of caselaw and publicly filed health insurance policies,” and report back on what health insurers have been doing with their contract terms to try to control their claims spend-out. The results are riveting. Monahan & Schwarcz document a shift twenty years in the making. The nature of what they see is a switch from insurers defining the scope of coverage using the broad standard-like term of “medically necessity” within each benefit category, to the use of highly particularized rules embodied in clinical policies or guidelines that are directly or indirectly fixed by reference in the insurance policy terms.
Their piece is a reply of sorts in a conversation across the decades with another colossus of an article, Mark A. Hall & Gerard F. Anderson, Health Insurers’ Assessment of Medical Necessity, 140 U. Pa. L. Rev. 1637 (1992). Each article, Monahan & Schwarcz’s and Hall & Anderson’s, stands and grapples with the fundamental and enduring crosswinds of the health coverage conundrum and renders them into a coherent historical narrative of sweeping momentum. Continue reading "Medical Necessity, Then and Now"
