Can the Constitutional Sin of Colonialism be Redeemed?

Seth Davis, American Colonialism and Constitutional Redemption, 105 Cal. L. Rev. 1751 (2018).

The United States Constitution—that great experiment in creating a “more perfect union,” more democratic, egalitarian, and libertarian—was founded in sin. These sins include, among others, slavery and political exclusion of people of color and women of all races. They also include the erasure of sovereignty required to found a country on a continent occupied by existing indigenous sovereigns. Many before Seth Davis, including Milner Ball, Philip Frickey, Nell Newton, David Wilkins, and Robert Williams, have wrestled with this founding constitutional evil. Several things, however, distinguish Professor Davis’s American Colonialism and Constitutional Redemption. The result is an important addition to the canon of federal Indian law.

First, Professor Davis engages with theorists outside federal Indian law to an unusual degree. Professor Davis specifically takes on fiduciary theorists like Evan J. Criddle and Evan Fox-Decent, but also engages with other constitutional theorists like Sanford Levinson, Aziz Rana, and Jack Balkin; political theorists like Carole Pateman, Jennifer Nedelsky, and Robin West; race theorists like Dorothy Roberts and Miguel de la Torre; and even political figures like President Barack Obama and Reverend Adam Clayton Powell Sr. While other scholars of federal Indian law have written noteworthy works in other areas, few have so deftly connected their work to debates outside the field. The result is an article that helps to bring the law of Native people into mainstream debates, and out of the niche in which it is sometimes cabined. Continue reading "Can the Constitutional Sin of Colonialism be Redeemed?"

Union Improvisation: The Parent of Social Justice

Michael M. Oswalt, The Right to Improvise in Low-Wage Work, 38 Cardozo L. Rev. 959 (2017).

In the movie 1776, Benjamin Franklin infamously remarks to John Dickinson, “Revolutions…come into this world like bastard children—half improvised and half compromised.” The compromise, of course, was slavery. The rest of the dialogue and its context, which explains the improvisation, is often omitted in discussion of this scene. Recall that Franklin asks John Hancock to poll the Pennsylvania delegation on the question of independence. Franklin votes yea; Dickinson, nay. This is how the decision of American independence lands squarely on the shoulders of Judge James Wilson, who ultimately votes yea. As Dickinson incredulously and rhetorically posits, “And is that how new nations are formed? By a nonentity seeking to preserve the anonymity he so richly deserves?”

If we compare the founding of our nation with the foundational federal labor law statutes of the twentieth century, which statute—the Wagner Act or the Taft-Hartley Act—is the labor law compromise? Most American labor scholars would probably say Taft-Hartley. After all, the Wagner Act, as Professor Karl Klare has correctly observed, “was perhaps the most radical piece of legislation ever enacted by the United States Congress.” Moreover, it is Taft-Hartley that, among other things, narrowed the definition of employee by eliminating the National Labor Relations Act’s (NLRA’s) protection of supervisors and independent contractors and diluted the union’s legal economic weapons by eliminating the secondary boycott. But the late Austro-British labor scholar, Otto Kahn-Freund, would argue that the Wagner Act was in fact a compromise by the American labor movement. As Kahn-Freund allegedly explained, “What the law giveth, the law can taketh away.” And taketh away it did—not merely via congressional amendments but via Supreme Court judgments and ultimately by the Board itself. Continue reading "Union Improvisation: The Parent of Social Justice"

Is Marriage a Proxy for Wealth?

Erez Aloni, The Marital Wealth Gap, 93 Wash. L. Rev. 1 (2018).

Discussions about wealth accumulation and economic equality invariably lead to discussions about income and wealth inequalities. Professor Erez Aloni‘s article, The Marital Wealth Gap, takes the discourse to a new level by adding the connection between marriage and wealth inequality. Specifically, Professor Aloni indicates how the family structure impacts wealth by comparing the accumulation of wealth among married households in the top ten percent to all households in the bottom ninety percent. He coins this differential “the marital wealth gap.” Further, the article exposes various policies that reinforce wealth inequalities that serve as the foundation for the marital wealth gap. Finally he discusses the cause and harms caused by the gap and possible solutions for narrowing the gap.

In his analysis, Professor Aloni explores whether the success of married couples is the cause of the wealth advantage and he analyzes the various legal mechanisms that reinforce the wealth privilege that married households enjoy. In other words, he posits that law and policy facilitate measures to maximize wealth holdings for married households. Professor Aloni proposes the state should decouple wealth benefits from marriage by dismantling the architecture that supports preferences based on marriage. Continue reading "Is Marriage a Proxy for Wealth?"

Privacy for the Privileged Few

Scott Skinner-Thompson, Privacy’s Double Standards, 93 Wash. L. Rev., (forthcoming), available on SSRN

In an age of growing income inequality and daily reminders of the privileged lives led by the rich and famous, it should come as no surprise that tort law might come to mimic the glaring disparities in the larger culture. The thesis of Scott Skinner-Thompson’s new article is that the courts have done just that in adjudicating privacy claims for the tort of public disclosure of private facts. Specifically, Skinner-Thompson argues that in applying the black letter law, courts have systematically favored privileged plaintiffs (often celebrities) without showing a similar regard for ordinary individuals, particularly plaintiffs from marginalized communities.

The article is rich in examples of disparate results linked to the identity of the plaintiff. There is the case of the gay man who loses his public disclosure lawsuit, despite being “outed” by the pastor of his church to other church members and a future in-law. Yet Hulk Hogan, the professional wrestler and reality show star, known for boasting about his sex life, wins a multi-million judgment when Gawker posts a sex tape of one of his sexual encounters. No recovery for a teenage victim of revenge porn when a website publishes a nude photo of the plaintiff she had privately sent to her boyfriend, but a sizable recovery for professional football player resulting from a tweet of his medical records indicating that he had to have a finger amputated. And on and on. Continue reading "Privacy for the Privileged Few"

The Ability-to-Pay Principle and the Counterintuitive Distributive Justice Analysis of Alimony Payments

Alice Abreu, Tax 2018: Requiem for Ability to Pay, 52 Loyola L.A. L. Rev. (forthcoming 2018), available at SSRN.

The tax bill that Republicans in Congress passed, and that Donald Trump signed in December 2017, might end up being one of the shortest-lived tax laws in U.S. history. Not only are large elements of it explicitly temporary, but the political moment that led to its passage seems already to be passing, quite likely to be followed by a time when progressive tax policy will once again be politically viable.

However, even if this bill lapses or is repealed (in whole or in part), Alice Abreu provides an important contribution to our understanding of what just happened in Tax 2018: Requiem for Ability to Pay. The title of the article telegraphs the importance of the issue that she identifies as the most unfortunate aspect of the new tax law. Whereas objective analysts knew that the bill’s changes would make the tax system less progressive than it had been, Abreu explains that seemingly unrelated elements of the bill add up to a repudiation of the very idea of progressive taxation. Continue reading "The Ability-to-Pay Principle and the Counterintuitive Distributive Justice Analysis of Alimony Payments"

The Conflicting Tugs of Community and Inclusion

Kenneth A. Stahl, The Challenge of Inclusion, 89 Temple L. Rev. 487 (2017).

“Inclusion” is one of those words that typically elicits warm and positive feelings. However, when an entire society is described as “inclusive,” the question arises—included in what? Putting the question another way, is it even possible for a community be all-inclusive?

Often, contemporary American political and legal discourse draw Manichaean distinctions between advocacy of inclusivity and of xenophobia. With regard to land use and housing issues, complete racial and socioeconomic integration of neighborhoods thus are juxtaposed against sinister demands by NIMBYs, who demand that integration take place “not in my back yard.”

Professor Kenneth Stahl is both an advocate for inclusion and an opponent of easy over-simplification. His analyses of economics, sociology, and political theory in The Challenge of Inclusion led him to observe that, at a fundamental level, the problem resides in the very notion of “community” itself. Continue reading "The Conflicting Tugs of Community and Inclusion"

Urban History as Legal History

My mother, a life-long New Yorker, was an opinionated person. There were certain politicians she didn’t like, and, if they came up in conversation, she would not hesitate to tell you so. At the top of this list was Richard Nixon—hardly a surprising entry considering my mother’s identity as a postwar, Jewish liberal. (I don’t think Nixon would have liked my mom very much either.) Not far below Nixon was Gerald Ford. His greatest crime, of course, was pardoning “that sleazy bastard Nixon.” Ford’s perfidy, however, also hit closer to home. In 1975, as my mother’s beloved city spiraled closer and closer to bankruptcy, Ford refused to allow the use of federal resources to help New York weather its financial woes. “Ford to City: Drop Dead,” read the New York Daily News’ infamous headline after Ford announced that he would veto any federal legislation that would “bail out” the City. New York’s fiscal crisis cost my father his job at the City University of New York, so, as far as my mom was concerned, the “Drop Dead” was aimed at our family.

When it came to New York’s fiscal crisis, Ford was not the only politician who earned my mother’s scorn. A large portion of it was reserved for a man who could not have been more different from the tall, athletic, Midwestern president: Abraham Beame, the petite, uncharismatic accountant who had the misfortune to be the mayor of New York City when the crisis peaked. According to mom, it was Beame’s incompetence, his tolerance for profligate spending, and his subservience to both the corrupt Democratic political machine and municipal labor unions that brought New York to the brink of ruin.

Kim Phillips-Fein’s marvelous book, Fear City: New York’s Fiscal Crisis and the Rise of Austerity Politics, argues that my mother’s view of the crisis, which has become the received wisdom, is incorrect. She provides a detailed history of New York’s financial woes. The City, she explains, was committed to promoting social-democratic urbanism by enacting programs that promoted economic egalitarianism. These programs—free higher education, a massive city-funded system of public hospitals, cheap mass transit, for example—were expensive, but they did not cause the fiscal crisis. Instead, Philips-Fein argues that it was a combination of external circumstances (the end of the postwar economic boom, deindustrialization, and changes in securities markets) and the ideological desires of Republicans in the Ford Administration that drove New York to the brink of bankruptcy. Desperately in need of financial resources, the City was forced by Ford to cut its budget dramatically in exchange for the short-term loans that saved the City from bankruptcy. Continue reading "Urban History as Legal History"

Hohfeld and Property

Christopher M. Newman, Hohfeld and the Theory of In Rem Rights: An Attempted Mediation in The Legacy of Wesley Hohfeld (forthcoming 2018), available at SSRN.

Rights come in different types, and the failure to distinguish among them can lead one into errors. So argued Wesley Newcomb Hohfeld, who—in two articles published in the Yale Law Journal in 1913 and 1917—offered a highly influential categorization of rights by type. This marvelous collection of essays, edited by Shyam Balganesh, Ted Sichelman and Henry Smith, assesses the Hohfeldian legacy. I’ll largely focus on Christopher Newman’s contribution, which I found particularly helpful. Some property scholars have criticized Hohfeld’s approach as unable to account for the distinctive character of property rights. Newman argues, I think rightly, that the two are compatible.

That Hohfeld was correct to distinguish rights by their type is undisputed. The right that I have to be present on Blackacre by virtue of owning it and the right that I have as a boxer to punch my opponent are clearly different in structure. As Hohfeld would describe it, my right to punch is a privilege only, whereas my right to be on Blackacre includes privileges and claims. X has a privilege with respect to Y that X perform act φ if and only if, by φ-ing, X violates no duty to Y. X has a claim with respect to Y that Y φ if and only if Y has a duty to X to φ. I have a privilege to punch my opponent, because, by punching him, I do him no wrong. But this “right” to punch includes no claim with respect to him: he has no duty to let himself be punched. My right to be on Blackacre, by contrast, includes not only privileges (by being on Blackacre, I violate no duty to you) but also claims (you cannot interfere with my being on Blackacre, for example, by expelling me from it). (For the record, Hohfeld identified two other types of right—powers and immunities—and would say that my rights with respect to Blackacre include them too, but I leave these details aside.) Continue reading "Hohfeld and Property"

IP Norms’ Dark Side

Stephanie Bair & Laura Pedraza-Fariña, Anti-Innovation Norms, 112 Nw. L. Rev. 1069 (2018).

The early legal literature on law and social norms tended to paint a rosy picture. Social norms were generally depicted as an optimal set of organically developed rules, informed by the experience of a close-knit community, and thus superior to formal law as a way to regulate behavior. Later scholars came to realize that nothing guarantees the optimality of social norms: they may perpetuate practices that no longer make sense, or they may advance the interests of certain groups but not social welfare. In such cases, formal law holds the promise of overriding suboptimal norms and moving society to a better place.

A few years back, I wrote, together with Christopher Sprigman, one of the first papers on social norms in intellectual property law in which we explored how standup comedians informally regulate the ownership and transfer of rights in jokes and comedic routines. While we thought that in that particular case the system of social norms largely brought good outcomes in terms of inducing creativity, that conclusion came at the end of reviewing their advantages relative to copyright law, but, importantly, also their relative disadvantages. For example, we noted aspects of the norms system that we thought were unattractive for creativity relative to formal copyright law: standups norms’ system does not recognize a term limit (so the norms’ system discourages dissemination and reuse of old materials), does not harbor a concept of fair use (so it discourages derivative and sequential creativity), and grants a scope of protection that exceeds that which is available under copyright’s idea/expression doctrine (so it discourages borrowing high level concepts and themes from others).

Since we wrote our paper, the law and social norms field of IP has grown considerably, and is, I believe, one of the most important developments in IP theory over the last decade, not to mention a fun and interesting one. Others have explored social norms that are copyright-like, patent-like, and trademark-like. More recently, the literature moved to make more general claims and observations based on a rich array of norms’ systems and case studies. One of the latest and important additions to this recent literature is the paper by Stephanie Bair and Laura Pedraza-Fariña which makes the claim about the dark side—i.e. counterproductive creativity-wise—of social norms more generally. In doing so, it builds on much social science and psychology literature. Continue reading "IP Norms’ Dark Side"

A Fresh Take on Health Care Price Transparency

Wendy Netter Epstein, Price Transparency and Incomplete Contracts in Health Care, 67 Emory L.J. 1 (2017).

The lack of price transparency in health care is well established. Patients are almost never informed of the cost of their care prior to receiving services. Even if a patient makes a concerted effort to determine price prior to receiving care, most are told that price information is simply unavailable. This lack of transparency results in a long list of negative consequences for both patients and the health care system as a whole.

Wendy Netter Epstein’s article, Price Transparency and Incomplete Contracts in Health Care, revisits this well established problem from a novel perspective. The article examines the lack of price transparency between providers and patients through contract theory. After all, when a patient seeks medical care, she signs a contract with an unspecified price term. Most contracts simply require the patient to pay whatever the provider ends up charging. While such incomplete contracts are deemed unenforceable in many other contexts, Professor Epstein explains that courts uniformly allow open-price contracts for medical care, often based on incorrect assumptions about the inability to ever know the cost of care in advance. The article then relies on contract theory to propose a solution: courts should, in appropriate cases, adopt a penalty default rule that provides a price of zero where the price term is unspecified. A default price of zero would essentially force providers to include price in the contract, so that consumers are aware prior to receiving care the financial consequences thereof. Continue reading "A Fresh Take on Health Care Price Transparency"