Nov 3, 2020 Brian BixFamily Law
Kaiponanea T. Matsumura,
Breaking Down Status, __
Wash. U. L.R. __ (forthcoming 2021), available at
SSRN.
One of the hottest topics in family scholarship today is the proper legal treatment of unmarried cohabiting couples. Of course, it is hardly a new topic: it has been a center of controversy at least since the Marvin v. Marvin decision almost 45 years ago. On one side, it has been argued that giving unmarried couples marriage-like rights (equitable division of property at the end of the relationship or a claim for something like alimony) would undermine the public policy favoring marriage, while also not respecting the autonomy of those who declined to marry precisely to avoid such obligations. On the other side, refusing any marriage-like rights to long-term unmarried cohabitants would arguably fail to protect vulnerable parties (in particular, those partners, usually women, who have given up careers) and create an unjust result between the parties (where often one party leaves a long-term cohabitation with much more property than the other, often after having promised that household earnings would be shared).
During the decades since Marvin v. Marvin, the number of couples cohabiting outside of marriage has increased significantly; the Census in 2018 reported that more people in the 18-24 year group were living with a partner than were living with a spouse. However, outside a handful of states (e.g., Washington State, with its status of “Committed Intimate Relationship”), and excluding the small number of couples who enter detailed written agreements, unmarried cohabitants are still treated as legal strangers. Indeed, as Kaiponanea Matsumura points out in “Breaking Down Status” – and others have pointed out as well – cohabitants are treated by the law worse than legal strangers, as courts will regularly refuse enforcement of informal agreements between cohabitants (exchanges are presumed to be made altruistically) that would be more likely to be enforced between strangers. (P. 58.) Continue reading "A Status Breakdown"
Nov 2, 2020 Sarah WaldeckTrusts & Estates
Victoria J. Haneman,
Funeral Poverty, __
Univ. of Richmond L. Rev. __ (forthcoming 2021), available at
SSRN.
Twenty years into teaching Estates, Victoria J. Haneman’s Funeral Poverty has made me reconsider my syllabus. Neither I, nor the textbook I use, discuss the death care industry, which includes funeral homes, pre-need sales, crematories, cemeteries, and third-party vendors of goods. Funeral Poverty convinced me that in a course where almost all content is death-related, we need to cover death services.
Professor Haneman writes that in 2019, the median cost of laying a loved one to rest was $9,000—a number that is “particularly stark” when 4 out of 10 Americans report they would have difficulty meeting an unexpected $400 expense. (P. 1.) For the average consumer, death services will be the third largest category of expenses over the course of a lifetime, behind only houses and automobiles. Moreover, “death care in the United States is an area of conspicuous consumption on which lower income families spend far more than high income families. . . . In 2014, the top 1 percent spent significantly less in absolute dollars than everyone else, the middle class fell in line with national averages, and the poor spent a 26% greater share of total expenditures than the national average.” (P. 32.) Continue reading "Teaching Our Students to Counsel Against Funeral Poverty"
Oct 30, 2020 Margot KaminskiTechnology Law
What distinguishes data protection (that is, legitimate privacy law) from data protectionism (arguably a barrier to trade)? Whether a country can use its domestic privacy laws to either de jure or de facto require a company to keep citizens’ personal data within that country’s borders is a significant point of international contention right now, especially between the United States and the European Union. In July, the Court of Justice of the EU invalidated (again) the sui generis mechanism for cross-border personal data transfers between the European Union and the United States (the “Privacy Shield”). The Court’s “Schrems II” decision makes it all the more likely that the United States will attempt to revisit the matter through strategic free trade agreement negotiations—and makes Svetlana Yakovleva’s Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy all the more timely and important.
Yakovleva observes that in recent free trade agreement negotiations, including at the World Trade Organization (WTO), the United States has pushed to characterize restraints on cross-border data flows as a protectionist trade measure, while the European Union, by contrast, has largely advocated for national regulatory autonomy. The outcome of this conflict over purported “digital protectionism” will have practical ramifications for transnational companies that regularly deal in cross-border data flows. It will also have serious theoretical consequences for ongoing and familiar discussions of how transnational law might bridge—or override—deep domestic regulatory divides. Yakovleva nimbly weaves together a history of the term “protectionism,” Foucauldian discourse theory, and the minute details of recent free trade agreement negotiations to provide an authoritative account of what exactly is at stake. Her big contribution is to tell us all to watch our language: one person’s “digital protectionism” can be another’s “fundamental right.” Continue reading "Are Data Privacy Laws Trade Barriers?"
Oct 29, 2020 Kristin HickmanTax Law
Mention the IRS, and for most, the first thought to come to mind is not alleviating poverty. Most people think of the IRS as the nation’s tax collector, processing tax returns and enforcing the tax laws to finance the government. Yet, for many years now, the IRS also has served as one of the federal government’s most significant antipoverty agencies. The IRS administers the Earned Income Tax Credit (EITC) and the Child Tax Credit (CTC), providing billions of dollars of social welfare benefits each year to millions of families and individuals. The EITC and CTC are very popular, at least in part because they are perceived by Congress as especially efficient relative to other antipoverty programs. Consistent with that popularity, both programs have grown a lot since their inception. But their administration by the IRS, while efficient, presents its own set of difficulties—including for the very beneficiaries these programs are intended to help. In her book, Tax Credits for the Working Poor: A Call for Reform, Michelle Drumbl takes a deep dive into the challenges as well as the benefits of giving the IRS responsibility for administering these important social welfare programs.
The comprehensiveness of Drumbl’s treatment alone makes this book a valuable addition to the tax policy literature. She offers plenty of statistics; a thorough survey of pros, cons, and policy alternatives; and a wonderful synthesis of existing scholarship. But the book’s true strength is the human story that it tells. Too often, discussions of the EITC and CTC focus wonkishly on economic efficiency, comparisons of bureaucratic expertise, and statistics alone. Drumbl’s account does not neglect that side of the equation. But she also draws upon her experience running a low-income taxpayer clinic to tell the stories of EITC and CTC beneficiaries, who often suffer the downside consequences of relying on tax officials to administer social welfare programs on the cheap. Continue reading "Pursuing Good Rather than Harm with the EITC and CTC"
Oct 28, 2020 Fred O. Smith, Jr.Courts Law
Seth Davis’s The New Public Standing canvasses and interrogates ways that state and local governments allege financial injuries to challenge the constitutional validity of federal law. Federal courts are often quite generous in entertaining private litigants’ claims based on economic injuries (as opposed to ideological or “conscience-based” injuries). Across a wide range of domains, states have relied on this generosity to allege creative economic injuries, even when the states’ actual objections to the relevant federal law are based on ideology. In Davis’s view, this kind of “new public standing presents constitutional, prudential, and remedial issues that are distinct from those raised by private standing for the public and by private standing based upon financial injuries.”
Previous scholars have examined ways that state governments allege injuries to their sovereignty or “quasi-sovereignty.” States sometimes invoke the doctrine of parens patriae to allege injuries to the health and welfare of their citizenry; states allege injuries to the geographic reach of their sovereign territories; and states allege injuries to their lawmaking authority. It has been said that states receive “special solicitude” as quasi-sovereigns, permitting them to command the jurisdiction of federal courts under circumstances that private litigants would not. Continue reading "Assessing the Rise of the Governmental Plaintiff"
Oct 27, 2020 Ezra RosserProperty
In what has been described as an “emerging consensus” and pejoratively labeled an “elite liberaltarian consensus,” there is growing scholarly recognition that land use overregulation is hurting the country by limiting the supply and increasing the price of housing. By highlighting state-level interventions that succeeded in checking local zoning authority, Professor Anika Lemar’s article makes a valuable contribution to the fight against excessive zoning limitations.
Professor Lemar’s article weaves together seemingly disparate examples—family day care homes, manufactured housing, small-scale residential alternative energy, and group homes—and explains what made those state-level assertions of authority succeed. Given how entrenched is the presumption that zoning is necessarily local and the related resignation among academics that state and regional approaches to zoning are doomed to fail, Lemar’s work is cause for celebration. Continue reading "State Interventions in Local Zoning"
Oct 26, 2020 Ronen AvrahamLexLaw and Economics
Not every day do we encounter a work of research that enables us to study the law through a whole new lens. Indeed, over the last fifty or so years, legal scholars have discovered new ways to apply well-established bodies of knowledge to the research of law, helping us to both give normative meaning to existing rules and formulate new ones. No better example of this “interdisciplinary revolution” comes to mind than the world of law and economics, which in all fairness should be deemed the world of law and microeconomics. Prior to the publication of Yair Listokin’s book, Law and Macroeconomics, we as researchers have applied economic insight to legal research solely by examining specific actors’ response to incentives provided by law—a microeconomic perspective.
Listokin’s book challenges this paradigm with an invitation to consider how Macroeconomic thinking should also affect the way we understand and interpret the law, when unique conditions call for such an interpretation. It is an invitation to broaden our perspective: away from the world of local incentives intended to optimize behavior of specific players, into ways we can harness the law to address problems such as unemployment, total output, and economic growth. Continue reading "Towards a new branch of law and economics?"
Oct 23, 2020 Eli WaldLegal Profession
Bruce A. Green,
Bar Authorities and Prosecutors,
Oxford Press Handbook of Prosecutors and Prosecutions (Ronald F. Wright, Kay L. Levine, and Russell M. Gold eds., 2020), available at
SSRN.
Bruce Green’s new book chapter explores the regulation of prosecutors in the United States. It convincingly argues that, although the ABA Model Rules of Professional Conduct (“Rules”), as adopted by the various states, formally apply to all lawyers, they have little practical impact on prosecutors’ practice.
The Rules have limited practical significance for prosecutors for three related reasons. First, many of the Rules do not apply to prosecutors’ practice realities. Some of the inapplicable Rules are intuitive. For example, Rule 1.5 can’t apply to prosecutors because prosecutors do not charge clients fees, and Rules 7.1-7.3 do not apply because prosecutors neither advertise not solicit for their services. Professor Green establishes in a fascinating section, however, that even Rules that could apply to prosecutors, such as Rule 1.6 (confidentiality), Rules 1.7-1.10 (conflicts of interest) and Rule 1.1 (competence) have been construed narrowly and generically to mirror other obligations that apply to prosecutors such as criminal procedure rules. Second, Rules that do directly apply to prosecutors’ practice, such as Rule 3.8 on prosecutors’ special responsibilities, and Rule 4.2, which forbids lawyers from communicating directly with represented individuals, have been construed narrowly to merely codify prosecutors’ constitutional obligations. The third and final problem is one of enforcement. The Rules are hardly enforced against prosecutors—giving these lawyers particularly wide berth. Continue reading "The Future of Attorney Regulation"
Oct 22, 2020 Anders WalkerLegal History
Finally! After being relegated to the lower tiers of American cities, St. Louis emerges as the nexus of the American experience. This is the startling argument advanced by Walter Johnson in his new book The Broken Heart of America: St. Louis and the Violent History of the United States. Known for his work on slavery, Johnson broadens his gaze to include westward expansion, industrialization, de-industrialization, and even the present moment. St. Louis emerges at the fore mainly due to its location, a gateway to the West that was also a shipping point to the South, a “northern” state where slavery was allowed and where the Union Army launched its Indian campaigns. This latter fact is central, for it is the confluence of imperialism and racial subordination that fascinates Johnson, leading him to conclude that racism—whether embodied in the genocide of native peoples or the exploitation of black labor—lies at the heart of American history.
Legal historians will be interested in two facets of Johnson’s book. First, by moving the geographic focus from the East Coast to the Midwest, Johnson reduces the significance of Boston, New York, and Washington DC to American history. In so doing, of course, he also reduces the importance of the Supreme Court. Only two 19th Century opinions interest him, the Court’s ruling in Johnson v. M’Intosh that delegitimized Indian sovereignty claims and Dred Scott v. Sanford, that delegitimized black citizenship. Both rulings fit into Johnson’s larger analytic frame, which reads the history of capitalism through the lens of race, and specifically Cedric Robinson’s “racial capitalism,” which holds that racism is inextricable from free enterprise, and that without racial subordination capitalism would cease to exist. Continue reading "St. Louis Matters! Walter Johnson Revisits the 27th City"
Oct 21, 2020 W.A. EdmundsonJurisprudence
“Capital = Asset + Coding” is the axiom that serves as Katherina Pistor’s tool of analysis, to lay bare the role of law in the history of capitalism. An asset can be anything—a plot of ground, a machine, an idea, a debt, a sequence of molecules—but an asset becomes capital when, but only when, it has been “coded,” that is, when it has been endowed with specific modules of legal protection: she calls them priority, durability, universality, and convertibility.
Pistor, the Edwin B. Parker Professor of Comparative Law and Director of the Center on Global Legal Transformation at Columbia Law School, laments that “economists … have clung to the notion that capital is a physical input, one of the two factors of production, when in fact, capital has never been about a thing, but always about its legal coding; never just about input and output, but always about the ability to capture and monetize expected returns.” (P. 116.) Her book has won awards already, including two “best books” citations from the Financial Times. The financial press is taking heed, and legal academics should, too. This wonderful book is destined to inform the difficult way ahead, as global capitalism’s second crisis in a dozen years overwhelms us. Continue reading "The Mother of All Subsidies"
