Aug 14, 2017 Margareth EtienneCriminal Law
Dr. Michael Javen Fortner’s book, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment, has ignited critical conversations in the academy and in public discourse. Among other things, the book describes a sort of “politics of respectability” within the black community and its impact on drug enforcement policy. The politics of respectability is a term coined twenty-five years ago by Professor Evelyn Brooks Higginbotham in Righteous Discontent to describe the social pressures by elite memb ers of the black community to ensure that other blacks were behaving respectably rather than affirming assumptions and stereotypes that the white community might have of blacks. Fortner’s book compels us to question the implications when, as is often the case in the African-American community, unelected social or religious leaders are assumed to represent the larger group. This is an important question for policy makers in the era of Black Lives Matter, a movement with a new model of diffused or unconventional leadership. Who should speak for whom? Black Silent Majority is a historical account of the role that a sub-group of African-American played in one of the most important socio-legal phenomena of the last half-century: the mass incarceration. In particular, Fortner explores how a privileged “silent majority” of black New Yorkers (preachers, politicians, businesspeople, the so-called “talented tenth,” and others) paved the way for the institution of draconian drug sentences.
To understand the ramifications of his argument, we must remember the cultural vibrancy of New York between 1920 and 1950. Harlem became a mecca of artistic, cultural and intellectual engagement during this period. This was the time of Langston Hughes, Duke Ellington, Zora Neale Hurston, and Josephine Baker. This renaissance was seeded by the great migration—the explosion of more than 6 million people to the North from the South in Harlem. Harlem – in this place and in this time – was as close to a capital of Black America as there could be. Continue reading "Saving Harlem from Drugs: A Hobson’s Choice"
Aug 11, 2017 Wendy Anne BachLexPoverty Law
That Elizabeth Hinton’s From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America is a must-read for those interested in the origins of the U.S. carceral state has been made clear in a stream of well-deserved and laudatory reviews. Echoing and reinforcing Naomi Murakawa’s The First Civil Right: How Liberals Build Prison America, Hinton persuasively demonstrates that today’s racially-targeted carceral state did not originate in Ronald Reagan’s 1980s. Instead its roots are both older and disturbingly bipartisan.
The architectural foundations of today’s carceral policies were laid during the administrations of Kennedy and Johnson, in the moments when the federal dedication to Community Action, maximum feasible participation and the War on Poverty gave way to the pathologization of black youth. Hinton moves steadily forward from that moment, persuasively indicting along the way not only Kennedy and Johnson but Carter as well. As she reveals, “in full historical context, the policies of the Regan administration marked merely the fulfillment of federal crime control priorities that stemmed initially from one of the most idealistic enterprises in American history .” (P. 4.) But the book is not only relevant for those interested in carceral policies. For scholars of poverty law and social welfare history, and in particular for those who seek to understand the historical origins of what Kaaryn Gustafson termed the criminalization of poverty, Hinton’s book is equally important. Continue reading "Tracing the Roots of the Criminalization of Poverty"
Aug 10, 2017 Omri Ben-ShaharContracts
As Truth-in-Lending laws are celebrating half a century of failure, and as consumers—especially those with low income—continue to make disastrous credit decisions, lawmakers are looking to reboot the disclosure paradigm. Energized by insights from behavioral economics, Twenty-First Century regulators are rapidly discarding the old idea of “comprehensive” disclosure, developing instead psychologically-smart, graphically-appealing, and timely-relevant compact disclosure templates. But now, a new study by Seira et al. has put to the test an array of these smart disclosures. And the results are devastating.
Smart disclosures seem to make perfect sense. If consumers need information to make good decisions, it should be delivered to them in a user-friendly manner. Smart disclosures should provide salient “total cost of credit” scores. They should “nudge” debtors to avoid massive debt, for example by showing them the real cost of making only minimum monthly payments. They should harness “peer effects” by warning people when their debt is above average for similar consumers. And they should arrive via eye-popping easy-to-understand media. Continue reading "More Failed Nudges: Evidence of Ineffective “Behaviorally Informed” Disclosures"
Aug 9, 2017 Charles ShanorConstitutional Law
Ozan O. Varol’s article Structural Rights usefully mixes two aspects of constitutional law that teachers and authors, at least for pedagogical purposes, separate when organizing coverage of their subject. My casebook, for example, covers “structural” features of the United States Constitution, such as separation of powers and federalism, then proceeds to “rights” chapters dealing with, for example, due process and equal protection. Students typically find structural features more difficult and non-intuitive, while they are very comfortable with rights protections for individuals.
Of course, separation of powers and federalism are fairly commonly viewed as liberty-enhancing. The Framers initially thought a Bill of Rights unnecessary: governmental structural restrictions and competing government power centers, they thought, would prevent government oppression. Today, perhaps in part due to the “rights revolution” of the Warren Court, my generation typically views the Bill of Rights and section 1 of the Fourteenth Amendment as bulwarks of individual freedom, central and indispensable to our constitutional order. But the point of the Constitution as a whole was to enhance governance by “We the People.” The rights provisions, as Varol’s article elucidates powerfully, empower rather than merely protect “the People.” They frame and drive our governance structure. Continue reading "Individual Rights and Collective Governance"
Aug 8, 2017 Brian TamanahaJurisprudence
Arden Rowell,
Law, Belief, and Aspiration (2017), available at
SSRN.
Theories about law frequently assume that people know what the law is. Theoretical accounts of the rule of law by Lon Fuller, Joseph Raz, and Friedrich Hayek, for example, emphasize that law must be prospective, clear, public, and stable, because it must be capable of guiding behavior. The assumption that people know what law is shows up in H.L.A. Hart’s assertion that a necessary condition for law is that valid “rules of behavior” promulgated by the legal system “must be generally obeyed.” This assumption is also manifested in theoretical claims that criminal laws deter crime and tort liability creates incentives for behavior. These and other discussions about the supposed consequences of law often take for granted that people have a correct understanding of what law requires.
Professor Arden Rowell’s recent article, “Law, Belief, and Aspiration,” casts doubt on this assumption. This empirical study, though not itself a work in jurisprudence, has significant theoretical implications and should be read by jurisprudents. Continue reading "Faulty Knowledge About Law"
Aug 7, 2017 Jodi ShortAdministrative Law
Robert C. Hockett & Saule T. Omarova,
The Finance Franchise, 102
Cornell L. Rev. (forthcoming, 2017), available at
SSRN.
In The Finance Franchise, Bob Hockett and Saule Omarova take on the dual myths underpinning contemporary financial regulation: that capital is both inherently scarce and privately provided. They painstakingly document (and illustrate in simple graphics for those of us whose banking savvy is confined to remembering their ATM PIN number) the state’s role in the provision of financial products and services ranging from plain-vanilla loans to digital currencies. They reveal how, at base, all of these products and services depend on the full faith and credit of national governments to assume ultimate liability for privately-issued debt and to monetize privately-issued debt by allowing the putative private debt-holder to spend the debt proceeds as if they were currency.
In short, Hockett and Omarova demonstrate that because the state serves these two functions, “modern finance is not primarily scarce, privately provided and intermediated but is, in its most consequential respects, indefinitely extensible, publicly supplied, and publicly disseminated. At its core, the modern financial system is effectively a public-private partnership that is most accurately, if unavoidably metaphorically, interpreted as a franchise arrangement.” (P. 4.) Continue reading "Bringing Back the State into Regulatory Scholarship"
Aug 4, 2017 Charles A. SullivanWork Law
James Grimmelmann & Daniel Westreich,
Incomprehensible Discrimination, 7
Calif. L. Rev. Online 164 (2017), available at
SSRN.
I’m a fan of off-beat approaches to legal scholarship, having attempted a couple of efforts myself. And I try to keep up with developments in the real world that threaten to impact our discipline, like the concern about “Big Data” that has begun to appear in the law journals. So it’s no surprise that I was very taken by a particularly creative piece by Professors James Grimmelmann and Daniel Westreich, which combines an amusing conceit with dead-on analysis of an emerging and important question.
Incomprehensible Discrimination explores one aspect of a much longer article that appeared recently in the California Law Review by Solon Barocas and Andrew Selbst on data-driven algorithmic methods of making employment decisions. The aspect Grimmelmann & Westreich explore is the ability of such analyses to find correlations between, say, job performance and any of a variety of data points with no apparent causal connection to better performance. Barocas and Selbst conclude that traditional disparate impact analysis is not likely to invalidate these kind of selection process. Given sufficient data and robust tests of significance, it’s hard to conclude that reliance on such factors is irrational, even in the absence of any articulable explanation for what one has to do with the other. For Grimmelmann and Westreich, that’s exactly the problem. Continue reading "Comprehending Causation and Correlation"
Aug 3, 2017 Paula MonopoliTrusts & Estates
Angela Vallario,
The Elective Share Has No Friends: Creditors Trump Spouse in the Battle Over the Revocable Trust, 45
Capital U. L. Rev. (forthcoming, 2017), available at
SSRN.
Some of our inheritance laws still seem closer to those existing in 1217 instead of 2017. For example, the elective share statutes in a number of states still echo the old common law doctrine of dower. In her new article, The Elective Share Has No Friends: Creditors Trump Spouse in the Battle Over the Revocable Trust, Angela Vallario makes a persuasive case for statutory reform, especially in light of recent trust reform in many of those same states effectively putting creditors in a more favorable position than a surviving spouse.
Professor Vallario begins by describing the current state of the elective share in the United States. She notes that twenty-five of the nation’s separate property states have reformed their elective share statutes to more clearly reflect a joint partnership theory of marriage. However, sixteen states have failed to do so and retain what Vallario calls the “traditional” elective share. Vallario reminds readers that the traditional elective share was built on the remnants of dower. Surviving spouses who are disinherited can claim either a one-half or one-third share of the decedent’s estate. But the term “estate” under traditional statutes has included only probate assets, not non-probate assets like life insurance, joint tenancy property with third parties and trust property. Continue reading "Unfinished Business: Reforming the Elective Share"
Aug 2, 2017 Theodore P. SetoTax Law
The House Republican Blueprint for corporate tax reform would replace our century-old corporate income tax, which we all know and love (or hate), with a “destination-based cash flow tax” (DBCFT), which for many of us remains a mystery. The academic foundation upon which the House proposal is built is a working paper by Alan Auerbach (UC Berkeley), Michael Devereux (Oxford), Michael Keen (IMF), and John Vella (Oxford) (collectively “the authors”), entitled “Destination-Based Cash Flow Taxation.” Given the current turmoil in Washington, it seems unlikely that a DBCFT will be enacted any time soon. Problems with our current system for taxing business income with an international dimension, however, are unlikely to go away on their own. If you want to get up to speed on a radical solution with substantial academic and political support, this paper is an absolute must-read.
The DBCFT has two components: a cash flow tax, which alters the timing and sometimes the substance of includibility and deductibility, and the destination-based “border tax adjustments” that have already found their way (sometimes incoherently) into the popular press. Continue reading "The Most Significant Proposed Change in the History of U.S. Corporate Taxation"
Aug 1, 2017 Carol BrownProperty
Lee Anne Fennell,
Fee Simple Obsolete, 91
N.Y.U. L. Rev. 1457 (2016), available at
SSRN.
“And don’t throw the past away. You might need it some other rainy day.” These lyrics to Peter Allen’s song, Everything Old is New Again, sum up the fee simple absolute (“fee simple”) perfectly. This antiquated doctrine that is the backbone of our real property system, the most adored and alienable of the estates in land, receives new life, a new purpose even, in Lee Anne Fennell’s compelling article, Fee Simple Obsolete.
Fennell gives the reader just enough history about the development and context of the fee simple to lay the foundation for a discussion with the reader about the ways in which the old fee simple has become an anachronism in a largely urban society. With eighty percent of Americans living in urban centers, the need for flexibility in reconfiguring precious urban land is at a premium. Continue reading "Everything Old is New Again: Breathing New Life into the Fee Simple Absolute"
