May 27, 2016 Anne Joseph O'ConnellAdministrative Law
Margaret B. Kwoka,
FOIA, Inc., Duke L.J. (forthcoming 2016), available on
SSRN.
Congress may be gridlocked on many issues, but both parties are working hard to strengthen the Freedom of Information Act. Motivations differ, of course. According to the New York Times, Republicans are displeased with the State Department’s response to requests for then-Secretary of State Hillary Clinton’s emails while Democrats favor a stronger transparency statute.
Margaret B. Kwoka’s forthcoming article, FOIA, Inc., in the Duke Law Journal already has a place in the policy discussions (and in the NY Times). It should also have a place in research and teaching in Administrative Law. I am a strong proponent of teaching something about FOIA in the core Administrative Law class, focusing on its potential use as an oversight mechanism and as an information tool in the many cases that are excluded by the Federal Rules of Civil Procedure and the presumption of regularity from discovery. I warn students, however, that they should not be swayed by tales of disinfecting sunlight, mentioning briefly old studies about the use of FOIA by private parties to get information about other private parties. Continue reading "Disclosure about Disclosure"
May 26, 2016 Charlotte GardenWork Law
Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan,
Stabilizing Low-Wage Work: Legal Remedies for Unpredictable Work Hours and Income Instability, 50
Harv. C.R.-C.L. L. Rev. 1 (2015) available at
SSRN.
Many readers were introduced to the concept of “just-in-time scheduling” when the New York Times explored the exhausting and chaotic work life of a Starbucks barista in August 2014. But the practice is certainly not limited to Starbucks. In response to this broader trend, groups like “OUR Walmart” are calling not only for higher wages and more full-time jobs, but for predictable and dependable scheduling, and left-leaning states and cities are beginning to mandate predictable work schedules for at least some workers. This emerging locus of advocacy and media attention is also the subject of Stabilizing Low-Wage Work, a great new article by Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan. The article analyzes comprehensively not only the problem of “just-in-time” scheduling for low-wage workers, but also the potential for either collective bargaining or state and local law to solve that problem.
Adapted from the practice of just-in-time manufacturing, just-in-time scheduling refers to the now-common practice of adjusting staffing levels in response to current conditions. While it is a problem for workers with many types of jobs, it has particularly taken hold in the service sector where, the article reports, “almost 30 percent or workers” have schedules with “variable start and end times.” Moreover, as the article shows, modern technology has made just-in-time scheduling attractive; employers can monitor and anticipate customer demand in close to real-time, sending workers home or canceling their shifts altogether if potential customers are staying home. Conversely, employers may want to call people in at a moment’s notice; this requires employees to wait by the phone, but seldom results in on-call pay. Federal law, particularly the Fair Labor Standards Act, does little to address this problem; when that law was drafted, the greater problem was that employers frequently demanded excessively long hours from workers. Continue reading "A Cure for Just-In-Time Scheduling"
May 25, 2016 Gerry W. BeyerTrusts & Estates
Ante-mortem probate addresses a glaring deficiency with the post-mortem probate model prevalently used in the United States. In post-mortem probate contests the key witness—the testator—is deceased, leaving the courts with only indirect evidence of the testator’s capacity and freedom from undue influence. The relative ease with which individuals dissatisfied with the testator’s choice of beneficiaries may manipulate this indirect evidence encourages spurious will contests. In ante-mortem probate the testator executes a will and then asks for a declaratory judgment ruling that the will is valid, that all technical formalities were satisfied, that the testator had the required testamentary capacity to execute a will, and was not under undue influence. The beneficiaries of the will and the heirs apparent are given notice so they may contest the probate of the will. In addition to providing greater certainty to the testator of the will’s validity, the procedure makes will contests less likely. But ante-mortem probate is not without its price: The ante-mortem process may be extremely disruptive to the testator and the testator’s family. The testator may not wish to disclose the contents of the will nor to face the potential embarrassment that may occur if testamentary capacity is litigated. It involves additional costs and may raise due process and conflict of laws problems.
Susan G. Thatch’s article concisely discusses the advantages and disadvantages of implementing an ante-mortem probate statute in New Jersey and, by analogy, in any state. The article focuses on the debate of whether allowing ante-mortem probate is useful to testators or harmful to families by reviewing the ante-mortem probate model currently used by five states, as well as other models which scholars have suggested. The article takes the view that if the suggested statute is implemented, it should supplement instead of supplant traditional probate options already available to New Jersey citizens. Figuring out the best way to ensure peace of mind for the testator while fully considering the arguments for and against an ante-mortem probate statute forms the foundation of the article. Continue reading "Add Probating Your Will to Your Bucket List"
May 24, 2016 Mark GeistfeldTorts
Theodore Eisenberg and Christoph Engel,
Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13
J. Empirical Legal Stud. 116 (2016), available at
SSRN.
Empirical study of the law is important, particularly for tort law. Fundamental components of the tort system are a “black box,” which largely explains why the field is riven by theoretical disagreement over the purpose of tort law. The claim that tort law efficiently reduces accident costs, for example, critically depends on the extent to which the threat of tort liability deters risky actors from behaving inefficiently. The available data on accidents, however, do not directly measure the relationship, no doubt because the injury rate is affected by a large number of other interrelated factors such as changes in wealth and technology that are extraordinarily hard to disentangle, making it extremely difficult to identify the impact that tort liability has had on actual accident rates. To isolate the influence of particular factors such as the threat of tort liability, empirical study must instead turn to the laboratory, where researchers can conduct experiments that are designed to tease out the role of the varied factors that plausibly explain the accident rate—an excellent example of which is provided by Theodore Eisenberg and Christoph Engel in their article, Unpacking Negligence Liability: Experimentally Testing the Governance Effect.
As persuasively argued by Frederic Schauer in The Force of Law (2015), important jurisprudential questions depend on the particular reasons why individuals comply with the law. In particular, individuals often have independent normative reasons for acting in the manner otherwise required by the law, in which case the law itself is not motivating the behavior. “Until we can understand the different ways in which law intersects with its subjects’ law-independent preferences, we cannot begin to understand the role of incentives and coercion in motivating legal compliance.” (P. 100.) The experiment conducted by Eisenberg and Engel was designed to address exactly this type of problem. Continue reading "Tort Law in the Laboratory"
May 23, 2016 Clifford RoskyFamily Law
For several decades, scholars, lawyers, and judges have debated whether laws against same-sex marriage are a form of discrimination based on sex. Most recently, during the oral arguments in Obergefell v. Hodges, Chief Justice Roberts asked whether it was “necessary to get into sexual orientation to resolve this case,” given that the challenged marriage laws treated couples differently based on their sex: “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
For a long time now, the sex discrimination argument for LGBT rights has been a darling of law professors, thoughtfully developed over the years by several of the legal academy’s leading minds. Unfortunately, it has not fared so well among judges. Although plaintiffs have been advancing this argument since the 1970s, only a handful of trial and appellate judges have endorsed it. Notwithstanding the Chief Justice’s remark at oral argument, the sex discrimination argument was not specifically addressed in Obergefell itself. After Obergefell, legal scholars are left to wonder what, if anything, will come of the hard work that so many have devoted to this subject for so many years. In her recent essay, Risky Arguments in Social-Justice Litigation, Suzanne Goldberg takes up the question of why courts have been so reluctant to adopt the sex discrimination argument in same-sex marriage cases. Continue reading "Sex Discrimination: The Future of LGBT Rights?"
May 20, 2016 Andrew HayashiTax Law
The world of international tax avoidance is a colorful one. There are the legal structures, with names like the “Double Irish Dutch Sandwich,” the exotic locales, like Bermuda and the Cayman Islands, and the identity crises presented by “hybrid” entities and financial instruments. But rarely does international tax avoidance have a human face and one could be forgiven for getting the impression that falling effective corporate tax rates are as inevitable as water flowing downhill. Corporations, acting in the interests of their shareholders, maximize their after-tax profits. States, acting in the best interests of their residents, set tax policies that are incongruous with the policies of other states. The “bad actors,” if there are any in this story, are corporate aggregates of one sort or another, multinational corporations and tax haven countries.
But the LuxLeaks scandal has given us one human face that stands out from the crowd of aggregates. This is the face of Marius Kohl or “Monsieur Ruling,” the former head of the Luxembourg agency, who gave rulings to taxpayers on the tax treatments of their proposed transactions. In The State Administration of International Tax Avoidance, Omri Marian does a wonderful job of explaining how this one bureaucrat acted to facilitate massive tax avoidance by engaging in “arbitrage manufacturing.” Marian argues that rogue individuals pose an ongoing threat to international tax cooperation. His paper clearly explains how arbitrage can be manufactured, documents how it was done in Luxembourg, and draws from the LuxLeaks episode an important lesson about the need to integrate micro reforms of tax administration into the macro project of international tax harmonization efforts. Continue reading "Putting a Face to International Tax Avoidance"
May 19, 2016 W. Bradley WendelLegal Profession
As the title of Ben Barton’s new book, Glass Half Full, suggests, he sees something positive in the relentless stories of woe we have been hearing about the legal profession since the Global Financial Crisis. In truth we’ve been hearing these stories since before that time, regarding both the legal profession and legal education. Crisis rhetoric seems to come with the territory for lawyers. There were some fat years for the profession, fueled by a long period of postwar economic growth, from the 1950’s through the 1980’s.
But in about the late 1980’s, things started to go badly for many large law firms. Their long-time clients, who had been grumbling about hourly billing and inefficiency, began to bring more legal work in-house. Corporate general counsels then restructured their relationships with outside law firms, often putting work out for competitive bidding and breaking up existing, cozy, bilateral monopolies with the company’s regular outside counsel. Companies no longer looked to outside law firms as general advisors, but as providers of discrete, specialized services. Publications like American Lawyer made information available about revenue and profits per partner, touching off a significant upturn in lateral hiring. Partners now demanded to be compensated for originating business, not simply performing legal services for clients, and as firms shifted from lockstep to “eat what you kill” compensation systems, internal firm cultures became destabilized. Continue reading "Is the Crisis in the Profession Good for Consumers?"
May 18, 2016 Adam N. SteinmanCourts Law
Justin Pidot,
Tie Votes in the Supreme Court, Minn. L. Rev. (forthcoming 2016), available at
SSRN.
Ever since Justice Scalia passed away in February, the Supreme Court of the United States has been operating with eight justices. As readers are surely aware, this is one justice short of its statutorily mandated population of nine.
There is widespread consensus among mathematicians that the number eight is evenly divisible by two, while the number nine is not. So it should come as no surprise that the Supreme Court has handed down several 4-4 decisions in recent months, with more expected before the Term wraps this June. In light of Senate Republicans’ refusal to hold a hearing on President Obama’s nominee to replace Scalia—and predictions that such a stalemate might extend well into the next President’s term—this even-numbered state of affairs could well become the new normal. Enter Justin Pidot’s article, which provides a timely, thoughtful, and informative examination of tie votes at the Supreme Court. Continue reading "Fit to Be Tied"
May 17, 2016 Gregory M. SteinProperty
Timothy M. Mulvaney,
Legislative Exactions and Progressive Property,
Harv. Envtl. L. Rev. (forthcoming), available at
SSRN.
In Legislative Exactions and Progressive Property, Professor Timothy Mulvaney provides a clear and thoughtful discussion of whether legislative exactions should be subjected to the same heightened level of scrutiny that applies to administrative exactions under current Supreme Court doctrine. For those who view exactions as a device that internalizes externalities and forces owners wishing to intensify their use of land to bear the full cost of their development, the conventional wisdom is that Nollan v. California Coastal Commission and Dolan v. Tigard should be read as narrowly as possible.
Both of those cases addressed only administrative exactions and did not need to decide the question of whether similar rules should apply in cases in which the exaction is imposed through more generally applicable legislation. Those who believe that Nollan and Dolan hold government actors to an unreasonably high standard may naturally resist expanding their reasoning to legislative exactions. While acknowledging and largely agreeing with this first-order reasoning, Mulvaney notes second-order effects of confining those two cases to administrative exactions. These second-order effects, he argues, might be more harmful in the long run than those who object to expanding the reach of Nollan and Dolan may have initially recognized. Continue reading "Do Progressive Property Scholars Really Want to Limit Nollan and Dolan to Administrative Exactions?"
May 16, 2016 Jaya Ramji-NogalesLexImmigration
Over the past few months, the world has been transfixed by the flows of Syrian refugees pouring into Europe. These mass movements were, of course, preceded by much larger populations fleeing Syria for neighboring countries such as Jordan, Lebanon, and Turkey; at last count, four million Syrians resided in these three states. Though international law mandates protection against refoulement, or return to Syria, for those who fit the definition of a refugee, the UN Refugee Convention says nothing about who should bear the costs of protecting these refugees. This is the gap that Tendayi Achiume seeks to fill in her forthcoming article, Syria, Cost-sharing, and the Responsibility to Protect Refugees.
The question of global cost-sharing for refugees is ground well-trod, perhaps most famously by Prof. Peter Schuck in his 1997 article, Refugee Burden-Sharing: A Modest Proposal. That controversial piece has since framed the debate around the topic. Prof. Achiume steps into this arena with a novel and provocative proposal: to leverage the international legal doctrine known as the Responsibility to Protect (RtoP) in order to frame international coordination around and equitable cost-sharing for refugees. Perhaps best known as the doctrine that enabled humanitarian intervention in Libya, RtoP is not without its critics, as Prof. Achiume readily acknowledges. Her article suggests using RtoP as a tool to address the free rider problem in responding to mass refugee flows while at the same time viewing the situation of Syrian refugees as a tool to rethink potential uses of RtoP on the world stage. Making this case is not a task for the faint of heart; Prof. Achiume’s combination of boldness and fine-grained attention to each layer of her complex argument will manage to convince even the most skeptical of readers to rethink their views of refugee cost-sharing and RtoP. Continue reading "Rethinking International Law’s Responses to Refugee Flows"
