Mar 4, 2016 SpearItCriminal Law
For criminal justice enthusiasts, Padilla v. Kentucky (2010) represented a victory for criminal defendants in an area where there are few. Whereas previously, defense attorneys were under no compulsion to inform clients about the downstream consequences of a conviction, Padilla said that deportation was different. The severity of this outcome mandated that clients be made aware of this possibility before making a guilty plea—it simultaneously served as a mandate for the defense bar. As a result of the ruling, defense attorneys were involuntarily thrust into the world of crimmigration law, with the beneficiaries being those accused of a crime. Now, at a minimum, defense counsel would need the competence to be able to advise clients who face the risk of deportation.
In Crimmigration Law, César Cuauhtémoc García Hernández has created an immense resource to help ensure this occurs. The work provides a comprehensive overview of a complex phenomenon in American law, namely, how criminal and immigration law converge into a distinct body of law that necessarily involves both. Continue reading "Crimmigration Law Comes of Age"
Mar 3, 2016 Wyatt SassmanCourts Law
Close only counts in horseshoes, hand-grenades, and the Supreme Court’s recent treatment of equitable remedies. So says Samuel Bray in The Supreme Court and the New Equity, where he defends fourteen Supreme Court decisions decided from 1999 to 2014 that are fraught with errors and frequently criticized, which Bray labels “the new equity cases.” The equity in these cases is “new” in two ways. First, it maintains a clear distinction between equitable and legal remedies by entrenching the “irreparable injury rule,” or the requirement that there be no adequate remedy at a law before a judge consider equitable relief. Second, it seeks to control judicial discretion by adhering strictly to the history of equitable practice, and drawing from that history rules and multi-part tests to guide the application of equitable relief.
“It is not easy to imagine,” Bray writes, “anything further from the conventional scholarly wisdom than” the doctrinal developments of the new equity cases. (P. 1008.) For one, experts had long celebrated both the death of the irreparable injury rule and the unity, for all practical purposes, of equitable and legal remedies. Bray points to Douglas Laycock’s 1991 book “The Death of the Irreparable Injury Rule” as the aristeia of a movement to tear down the barrier between equitable and legal remedies that began over a century ago. Laycock “meticulously” illustrated that the requirement to show no adequate remedy at law has no discernable impact on a judge’s decision whether or not to grant equitable relief; as Bray puts it, “[w]hen judges want to give a permanent injunction, they never find legal remedies adequate.” (P. 1006.) Even the American Law Institute criticized the irreparable injury showing as “antiquated” and “spurious” in its Restatement (Third) of Restitution and Unjust Enrichment. Continue reading "On Being Mostly Right"
Mar 2, 2016 Mark KendeConstitutional Law
American politics is increasingly polarized. The New York Times recently published an article listing all of the people and organizations that Donald Trump has insulted during his Presidential campaign so far. Republicans and Democrats get in trouble just for working together in Congress. This makes the U.S. Supreme Court an especially interesting institution right now. Though unelected, it is made up of Republican and Democratic appointees who decide important constitutional and other cases together. Professor Eric Berger, of the University of Nebraska School of Law, has written an important law review article addressing a related problem that has emerged on the Court: a tendency towards “absolutism” in its judicial opinions. So, has political polarization somehow carried over to the Court? If yes, what are the explanations and solutions?
Professor Berger’s article is well written, nicely organized, deeply researched, and comprehensively analyzed. Moreover, his article shows the value of traditional doctrinal legal scholarship, though the article includes abundant theory as well. The article was published before Chief Justice Roberts’ dissent in Obergefell v. Hodges, 576 U.S. __ (2015), where Roberts wrote that gay people may celebrate the decision, but added derisively that the majority’s decision has “nothing to do with the Constitution.” Ironically, the point of Roberts’s dissent was the lack of humility in Justice Kennedy’s majority opinion. So Professor Berger is on to something. The late Justice Scalia frequently, and with increasing harshness, skewered the opinions of the other justices. Continue reading "The U.S. Supreme Court and Humble Opinion Writing"
Mar 1, 2016 Christopher M. BrunerCorporate Law
Theories of corporate law and governance that purport to explain the nature of the corporate entity, the legitimate objective of corporate decision-making, and/or the balance of corporate power have proliferated over recent decades, and the debates prompting them show no signs of abating. Some accounts place the shareholders’ interests at the core of the enterprise, while others present more embracing conceptions requiring (or at least permitting) regard for other “stakeholders” such as employees and creditors. Similarly, some accounts identify shareholders as the font of legitimate corporate power, while others present more board-centric conceptions. Adding to the complexity, various theories combine differing perspectives on the corporate objective and corporate power in differing ways, often rooting them in irreconcilable conceptions of what the corporate entity itself fundamentally is. As time passes, the arc of corporate theory would appear to bend toward fragmentation rather than closure.
In the article cited above, Martin Gelter and Geneviève Helleringer illuminate these issues from a fascinating doctrinal perspective, exploring what the persistence of so-called “constituency directors” – placed on the board by a particular individual or institution – reveals about the nature and defining objective of corporate decision-making. Gelter and Helleringer bring to the task not only deep engagement with the scholarly literature in these areas, but also considerable comparative and interdisciplinary sophistication. Drawing upon a broad range of examples from U.S., U.K., and Continental European corporate legal systems, they observe a “fundamental contradiction” manifesting itself in all of them – “the tension between the uniformity of directors’ duties and the heterogeneity of directors themselves.” Specifically, they identify an apparent “paradox” in permitting “directors’ nomination rules linked to specific constituencies” while at the same time imposing “heterogeneity-blind duties.” Building on their descriptive account of illustrative doctrinal structures, Gelter and Helleringer assess them against prevailing formulations of the corporate objective, social scientific insights, and the available empirical evidence, concluding with a normative case for reform. Their product is informative, insightful, and a pleasure to read. Continue reading "Constituency Directors, Loyalty, and the Corporate Objective"
Feb 29, 2016 Adrian VermeuleAdministrative Law
Some readers value an article for logical rigor, some for sound judgment, some for immediate utility, some for originality, and so on into N dimensions. (We may value more than one dimension, of course, but not “all of the above,” because the desirable traits may trade off against one another, at a frontier; no one piece can display all of them simultaneously and to a maximum degree). The peculiar excellence of richness is on display in Administrative War by Tino Cuellar, formerly of Stanford, now molted into a higher form of life as Justice Cuellar of the California Supreme Court. Cuellar recounts the history of the administrative state during the Second World War, and connects it to the surrounding political conflicts and developments in legal theory. There is no single thesis, no one-sentence nugget. Rather we are treated to a kind of legal-historical cornucopia. Cuellar’s story undermines conventional wisdom on a number of critical issues in administrative law. Let me attempt to lay out some of the wealth of interesting points that emerge.
1. The New Deal and the War. Cuellar’s basic narrative recounts the arc of the administrative state just before and during the Second World War. Administrative lawyers, particularly critics of the administrative state, still talk about “the New Deal” as though it were the moment when the Rule of Law gave way to the administrative state (and as though “the New Deal” were all one thing or era, as opposed to a pastiche of movements and developments). Distilling, synthesizing and translating-for-lawyers a library of background literature, Cuellar explains that the war, rather than the New Deal, represented the key “inflection point” in the growth of the administrative state. Furthermore, unlike World War I, which gave rise to a number of more or less temporary bureaucracies, the burgeoning administrative state was cemented into place during and by World War II, and by the odd political consensus that created the Administrative Procedure Act of 1946—a key legitimating mechanism for Leviathan. The pedagogical implication of all this is that the constitutional conflicts of the 1930s, which occupy so much space in public law courses, should at a minimum be supplemented and probably partly displaced by a study of the bureaucratic developments of the war years. Less time on the National Industrial Recovery Act (NIRA), which did not provide an enduring model for the American administrative state; more time on (entities like) the War Production Board (WPB) and the Office of Price Administration (OPA), which did. Continue reading "Leviathan Had a Good War"
Feb 26, 2016 Henry ChambersWork Law
Leora F. Eisenstadt,
Causation in Context, 36
Berkeley J. Emp. & Lab. L. 1 (2015), available at
SSRN.
In Causation in Context, Professor Leora F. Eisenstadt harshly critiques Burrage v. United States, a case in which the Supreme Court imports some of its troublesome thinking on employment discrimination causation into a criminal law case. I like the article lots because it crosses two substantive areas and explains why causation, a tricky and core concept in both areas, does quite different work in each area. In the process, the article exposes the larger danger of misusing a powerful tool that judges, lawyers and law professors alike use – reasoning by analogy. Professor Eisenstadt implicitly suggests that reasoning by analogy is of little or no use if the court that is reasoning has an insufficient understanding of the underlying areas at issue and fails to recognize what makes the analogy inapt. If a court wants to use an employment discrimination concept in a criminal law area, the court needs to understand why the concept has been used—and whether the concept has been misused—in the employment discrimination area before deploying it in the criminal law area.
In short, the article considers how the Supreme Court in Burrage imported the but-for causation principle – the notion that a factor does not cause a result if the result would have occurred in the absence of the factor – that has been become prevalent in the employment discrimination area into a criminal law case. In the process, a principle used to determine whether intentional discrimination caused an adverse job action is now used in a criminal case to determine whether the use of an illicit drug caused a victim’s death. The article discusses the Court’s mistake in finding a false equivalency between causation in criminal law and causation in employment discrimination law. The false equivalency not only triggered an inappropriate use of an employment discrimination causation standard in the criminal law case; it may trigger a broader assumption that a principle used in one area of the law can be borrowed and used in other areas of the law. That could create problems if courts import concepts from other areas of law into an already complex employment discrimination arena. Continue reading "Why Importing Employment Discrimination Causation Into Criminal Law is a Bad Idea"
Feb 25, 2016 Anne-Marie RhodesTrusts & Estates
Mary F. Radford, Predispute Arbitration Agreements Between Trustees and Financial Services Institutions: Are Beneficiaries Bound?, 40 ACTEC L. J. 273 (2014).
Disputes are a persistent reality of trust law and even the most meticulously-drafted and expertly-administered trust can be embroiled in litigation, often involving trust investments. In an effort to avoid litigation, many investment advisors and banks include in their routine account agreements, provisions requiring arbitration in the event of any dispute. When a trustee opens an account that contains a mandatory arbitration provision, are the beneficiaries also bound?
Professor Mary Radford delves deep into the practice, cases, and theory of predispute arbitration provisions. Her discerning and experienced eye expertly distills the essence of a trustee’s fiduciary responsibilities with the practical realities of investing in the 21st century. This article appealed to me because it offers a thoughtful, sophisticated, and wide-ranging look at an increasingly common provision. At a time that arbitration clauses are under review, the article connects trust law to the wider world; it is a good example of the law as “seamless web.” Continue reading "Enforceability of Predispute Arbitration Provisions"
Feb 24, 2016 Adam RosenzweigTax Law
I typically begin my Federal Income Tax course discussing how tax is the one area of law that touches every aspect of life, from birth to death, from marriage to divorce, from retirement to child-care, and everything in between. Similarly, tax scholars write on topics ranging from same-sex marriage and the earned income tax credit, on the one hand, to carried interest and corporate inversions, on the other. By this point, my colleagues are surely tired of hearing me repeat how tax law has something meaningful to say about everything.
Given this incredible breadth and diversity of the tax law, why is it that most people think of tax scholarship primarily as number-crunching, or business planning, or law and economics? While I happen to be sympathetic to this point of view, primarily because it happens to coincide with my primary interests, why is it so often considered the standard for the best of tax scholarship? Continue reading "What is Tax Scholarship, and Who Decides?"
Feb 23, 2016 Ellen BublickTorts
- Christopher Robinette, The Prosser Letters: 1919-1948, 101 Iowa L. Rev. __ (forthcoming 2016), available at SSRN.
- Kenneth S. Abraham & G. Edward White, Prosser and His Influence, 6 J. Tort Law 27 (2015), available at SSRN.
United States courts cited Dean Prosser’s hornbook on Torts more than 200 times over the course of 2015. In that year, courts also cited Dean Prosser’s Restatement (Second) of Torts more a thousand times. Dean Prosser’s work shaped the law of Torts in the United States and continues to do so today, forty-three years after his death. Despite Prosser’s out-sized influence in the field, surprisingly few articles have been written about this founder of contemporary Tort law.
Two recent articles begin to fill that gap. Ken Abraham and Ted White tackle the subject of Prosser’s work and influence. Meanwhile, Chris Robinette uncovers the private correspondence of the man behind the law. Both the Abraham and White article and the Robinette article are insightful, a pleasure to read, and ultimately leave the reader ready to purchase the next chapter (Robinette reveals that part two is in the works). Continue reading "The Man, The Torts Legend"
Feb 22, 2016 Amy SalyzynLegal Profession
North American legal services regulation has been slow to evolve. This reality is particularly apparent when one looks at the rest of the common law world. Take, for example, the radical changes over the last decade or so in the way English and Australian lawyers are governed: among other things, self-regulation has been turfed, as have tight restrictions on non-lawyer ownership. While it is still too early to evaluate the full effect of these and other reforms, they have led to some interesting developments, like publicly traded law firms and the regulation of law firms (as opposed to the regulation of individual lawyers only).
Having observed these changes abroad, many lawyers and academics have suggested that American and Canadian regulators ought to adopt similar reforms in response to modern practice realities. Indeed, to some extent, such changes are already afoot. Some prominent examples include the American Bar Association’s recent passage of a resolution that provides guidance to states if they choose to regulate non-traditional legal services providers and the fact that several Canadian provinces are considering, if not, implementing entity and/or compliance-based regulation (further discussion can be found here, here, and here). Notwithstanding these developments, others have argued that North American legal service regulation should hold firm in the face of dangerous foreign experiments. So who is right? Both and neither, according to a recent book by University of Windsor law professor Noel Semple. Continue reading "A Way Forward: What’s Good and Bad about Legal Services Regulation in the United States and Canada?"
