Jotwell Winter Break 2020

Jotwell will be taking a short Winter break. Jotting should resume on Monday, Jan 4, 2021.

This has been a uniquely difficult year for everyone. I and the Jotwell Student Editors — Claire Chatellier, Bridget Dye, and Allison M Paquin — all wish our readers a happier 2021. 

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Thank you for reading, and for your support.

The Lost History of Women Stockholders and the Modern Corporation

Sarah C. Hann, Corporate Governance and the Feminization of Capital (Dec. 8, 2020), available at SSRN.

In her working paper, Corporate Governance and the Feminization of Capital, Sarah C. Haan unearths the lost history of female shareholding and the crucial role gender bias and stereotypical depictions of women may have played in the creation of a corporate law system and ideology that promoted managerialism—to the benefit of white males. From the beginning of the twentieth century to the start of the Great Depression, corresponding with the rapid rise to dominance of the modern corporation, women had grown from an insignificant portion of the nation’s stockholders to a majority in many publicly traded firms; by the mid-1950s women were a numerical majority of all owners of publicly-traded stock. In the two decades before the Great Depression, reformers worried about the looming influence of the emerging modern corporation, and many advocated protecting and reinforcing shareholder power as the appropriate antidote.

The Great Market Crash of 1929 and the election of Franklin Roosevelt in November of 1932 provided the crisis and the opportunity to remodel corporate governance. However, rather than increasing the shareholder governance role, corporate theorists and policymakers preferred laws and legal institutions that fostered and supported managerialism. Haan convincingly argues that the path taken corresponded with gender-biased beliefs concerning the capabilities and appropriate roles of men and women, and that Berle and Means’ The Modern Corporation and Private Property (“The Modern Corporation”), published in the summer of 1932, played and continues to play a central role in how corporate law is theorized and understood. Continue reading "The Lost History of Women Stockholders and the Modern Corporation"

Building a more Perfect Democracy in Asia: A Realistic Theory of Courts as Democracy Protectors and Promoters?

Constitutional democracy is under threat worldwide, including in Asia itself. Witness the banning of the political opposition in Cambodia, the ongoing role of the military in Thailand, or the actual and threatened expansion of executive authority in the Philippines. These trends also parallel broader patterns of democratic backsliding or erosion across the globe. Identifying ways in which courts can effectively help counter these trends is thus of enormous value in 2020, and beyond.

In her important new book, Constitutional Statecraft in Asian Courts, Yvonne Tew provides just such an account: she argues that courts in Asia – and specifically in common law, South-East Asian countries such as Malaysia and Singapore — can and should play a greater role in both helping build and protect resilient constitutional democratic systems. Continue reading "Building a more Perfect Democracy in Asia: A Realistic Theory of Courts as Democracy Protectors and Promoters?"

The Two-Body Problem

Daphna Renan, The President’s Two Bodies, 120 Columbia L. Rev. 1119 (2020).

For reasons that remain mysterious, the past four years or so have seen a distinct rise in interest among public law scholars in the concept of “office” and surrounding ideas. What is an office, precisely? Is its defining feature one of powers—or of duties? What is the relationship between the office and the person occupying it? Do the powers and duties connected to that office inhere in the office, the officer, or some mixture of both? Can an officer speak for him- or herself, or is that speech always “official?” What is the relationship between office, officer, and the oath of office? Does the idea of fiduciary duty illuminate such questions, or obscure them? Of course these questions have a long pedigree. But since roughly 2017, this broad topic has seen a distinct upturn in scholarly work. One hopes it is not temporary or expedient.

Scholarly work on the question of office can take different approaches—legal or political, practical or theoretical. It can attain a level of abstraction that may yield general insights but few prescriptions—this is my own preferred sin—or give very precise recommendations that are hard to tie firmly to the legal, historical, or philosophical materials. (This is one way, in my view, to read a recent critique of “fiduciary constitutionalism,” even if one thinks the concept is worth exploring.) If one wants to avoid one or the other extreme, one had better be willing to live with tension and ambivalence. That position makes many law professors uncomfortable, given their own normative inclinations and the political and professional incentives that drive them. But it can be achieved—and beautifully, at that. Such is the case with Professor Daphna Renan’s recent article, The President’s Two Bodies. Continue reading "The Two-Body Problem"

The Nondelegation Doctrine and a Deep Dive Into Federal Taxation of Real Estate in 1798 That You Didn’t Even Know You Needed

Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 131 Yale L.J. (forthcoming 2021), available at SSRN.

Not so long ago, teaching the nondelegation doctrine in Administrative Law class was straightforward. Assign students an excerpt from Whitman v. American Trucking Association. Maybe add a bit of Justice Scalia’s dissent in Mistretta. Discuss the emptiness of the intelligible-principle principle. Everyone in class agrees that, whether you like it or not, a nondelegation doctrine that can accommodate delegations to act in the “public interest” or set “fair and equitable” prices does not do very much to limit the scope of the modern regulatory state.

But change has been in the air for several years—as most clearly demonstrated by Gundy v. United States (2019). As readers of this website will likely recall, the Court in Gundy addressed a nondelegation challenge to the Sex Offender Registration and Notification Act (SORNA), which requires sex offenders to register before completing their sentences of imprisonment. Barring time travel, this requirement would have been hard to apply to persons who had completed their sentences before SORNA’s enactment. To deal with them, SORNA delegated to the Attorney General the authority to “specify the applicability” of registration requirements and to “prescribe rules for registration.” Justice Kagan, writing for a controlling plurality, found sufficient constraints in SORNA’s text, purpose, and history to reject the nondelegation challenge. Just as about a century’s worth of the Court’s precedents might lead one to expect. Continue reading "The Nondelegation Doctrine and a Deep Dive Into Federal Taxation of Real Estate in 1798 That You Didn’t Even Know You Needed"

Reconciling a Public Health Approach to Gun Violence and Second Amendment Rights

Michael R. Ulrich, A Public Health Law Path for Second Amendment Jurisprudence, 71 Hastings L.J. 1053 (2020).

Gun violence in the United States has become a public health crisis, with an average of 100 Americans killed by firearms every day. If any other product caused this many deaths, it would almost certainly be subject to extensive regulation. However, efforts to regulate firearms are often stymied by claims that they violate individuals’ Second Amendment rights. In A Public Health Law Path for Second Amendment Jurisprudence, Michael Ulrich explains why this absolutist interpretation of the Second Amendment is inconsistent with longstanding constitutional principles. In so doing, he demonstrates that it is possible to respect the Second Amendment as an important constitutional value without stripping governments of the authority to regulate firearms in the interest of public health.

Ulrich begins with an overview of the Supreme Court’s two primary Second Amendment cases, District of Columbia v. Heller and McDonald v. City of Chicago. He concludes that those cases definitively resolved only three specific issues: First, that the Second Amendment protects an individual’s right to keep and bear arms; second, that the right is not unlimited; and third, that the right does not extend to “dangerous and unusual weapons.” Beyond those general conclusions, the decisions provide little clarity as to how courts should analyze regulations that implicate Second Amendment rights. Continue reading "Reconciling a Public Health Approach to Gun Violence and Second Amendment Rights"

Judges Behaving Badly… Then Slinking Away

Veronica Root Martinez, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 953 (2020).

A federal judge is accused of misconduct and an investigation begins. Before the investigation has concluded, though, the judge leaves her post. What happens next? Does it create an accountability gap, and if so, how much should that concern us? These are the questions that Veronica Root Martinez takes up in Avoiding Judicial Discipline.

This topic is timely and important in light of the crisis of accountability in the modern federal judiciary. Federal judges’ work is high in status and low in transparency, in the sense that social and professional norms give them a great deal of power but allow them to operate mostly out of public view. Those conditions create fertile ground for sexual harassmentand other forms of misconduct, yet the federal judiciary has largely been left to police itself. Federal judges are exempt from workplace misconduct laws such as Title VII. Congress has the authority to impeach and remove them, but in 230 years, the House of Representatives has impeached fifteen judges and the Senate has removed eight. Continue reading "Judges Behaving Badly… Then Slinking Away"

Intentional Tort Remedies Grounded in Civil Recourse Theory: How Torts Can Fulfill its Promises Through a New Kind of Insurance

Merle H. Weiner, Civil Recourse Insurance: Increasing Access to the Tort System for Survivors of Domestic and Sexual Violence, 62 Ariz. L. Rev. 957 (2021), available at SSRN.

The U.S. torts system features a large gap between intentional tort doctrine and actual remedies for intentional torts. Doctrine pronounces many injuries tortious and compensable—intentional torts including domestic violence and sexual violence are widespread—yet civil lawsuits for these torts continue to be rare. The reasons for this gap are not a mystery; they all relate to money. Merle Weiner’s important and well-researched article takes effective aim at this situation, meshing insights from civil recourse theory about the purpose of the torts system with empirical information about what survivors of these torts actually want (hint: it’s mostly not money). She uses these insights to shape the idea of a new type of insurance, ‘civil recourse insurance,’ that would much better support the purposes of the tort system and survivors’ goals than the current torts enforcement structure. Civil recourse insurance would be a type of legal expense insurance1 and would provide a policyholder with legal representation when a covered incident occurs.

The article takes civil recourse theory seriously in its assertions that the overarching purpose of tort law is to further accountability, empowerment, respect, deterrence, and even at times revenge, rather than to provide financial compensation.2 She applies these theses to the situation of domestic violence and sexual abuse survivors. For the most part, victims of these wrongs do not seek financial compensation. Instead, they more often seek accountability, empowerment, recognition, respect and deterrence. These kinds of remedies are not provided by the torts system as it exists because it is enforced by lawyers who seek financial compensation under contingent fee agreements requiring either insurance coverage or assets to make litigation worthwhile. Insurance exclusions for intentional acts, coupled with judgment-proof defendants, make tort litigation for these wrongs impracticable in our current system. But legal actions seeking accountability, empowerment, respect and deterrence would be possible under Weiner’s proposed ‘civil recourse insurance.’ The policyholder may want to file a lawsuit even if it will be uncollectible; may want assistance participating in the criminal justice system; or may want to have her or his harm recognized in a way that acknowledges wrongdoing. This new kind of insurance, modeled on a popular and successful type of insurance held by 40% of German households, would provide insureds with the resources to pursue these forms of recourse. Continue reading "Intentional Tort Remedies Grounded in Civil Recourse Theory: How Torts Can Fulfill its Promises Through a New Kind of Insurance"

Equality for Whom? Nonmarital Inequality and the Paradox of Parental Leave

Deborah A. Widiss, Equalizing Parental Leave, 105 Minn. L. Rev. __ (forthcoming, 2021), available at SSRN.

On Election Day, Colorado voters approved an initiative that makes Colorado the tenth state (including D.C.) in the U.S. to install a state-run paid family and medical leave insurance program. It will provide, among others, at least 12 weeks of paid time for childbirth and adoption, hence extending the entitlement of paid parental leave to Colorado workers who are not covered by the Federal Employee Paid Leave Act. Paid parental leave is increasingly considered to be a crucial measure to advance sex equality by transforming parenthood on double fronts: enabling working mothers to stay employed and paid while caring for children, and encouraging working fathers to provide hands-on infant care. Internationally, many countries have enacted various parental leave policies, which provide either equal amounts of leave to parents regardless of sex or distinct leave policies for mothers or fathers, while mindful of the risk that accommodating working mothers’ need for childcare without engaging working fathers in childcare will likely deteriorate the unequal division of childcare. It follows that a feminist inquiry into parental leave policies typically centers on the issue of which approach best promotes equal parenthood so that mothers do not shoulder the sole responsibility of childcare.

In Equalizing Parental Leave, professor Deborah A. Widiss argues that the above vision of equal parenthood is an incomplete picture. Widiss has examined the efficacy of different paid parental leave policies as an equality-promoting measure from a comparative perspective in a related article, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia (reviewed by Naomi R. Cahn on JOTWELL). Equalizing Parental Leave takes a step forward to shed light on the sex inequality of nonmarital families under U.S. parental leave laws. Both federal and state parental leave laws provide the same benefits to mothers and fathers, but they not benefit all families equally: families with two legally recognized parents are entitled to receive as much as twice the benefits of families with one legally recognized parent, and marital families are more protected than nonmarital families. Continue reading "Equality for Whom? Nonmarital Inequality and the Paradox of Parental Leave"

Is Retributive Corporate Punishment Possible?

Samuel W. Buell, Retiring Corporate Retribution, 83 Law & Contemp. Probs. __ (forthcoming 2020), available at SSRN.

Can corporations be blameworthy? Can they deserve punishment? If so, can we actually give them their just deserts?

Yes, yes, and no. At least, that’s what Samuel Buell says in this new article, where he contends that we should dispense with the notion of retribution when considering corporate punishment. Buell’s principal idea is that corporations cannot be retributively punished, since they cannot “be harmed or set back in ways that could satisfy” the retributive requirements of desert. His novel theoretical challenge to retributivism in corporate punishment compels us to rethink how the criminal justice system should interact with corporations. Continue reading "Is Retributive Corporate Punishment Possible?"

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