Oct 5, 2015 Janet WalkerCourts Law
Often we like scholarship lots because it reflects new or interesting perspectives on familiar subjects. Sometimes, though, the story itself is so thought-provoking that a good telling is all that is needed to make the article worth commending to Courts Law readers.
Such is the case with Hugo Cyr’s article, which chronicles the highly charged engagement between the Supreme Court of Canada and the Canadian Government (the Executive, comprised of members of the ruling political party) over the fundamental requirements for their respective legitimacy. Everyone seems to agree that the incidents recounted were “unfortunate” in that they provoked strong expressions of differences in what has historically been regarded as a relationship to be managed tactfully. Yet the events exposed many intriguing issues about how best to conduct this critical relationship to promote the continuity and flexibility needed to serve well the interests of the public. Continue reading "Controversial Supreme Court Appointments – A Blockbuster in the Foreign Films Category?"
Oct 2, 2015 Daria RoithmayrJurisprudence
Once upon a time there were banks that served the poor. Government structured banks for that purpose—government gave banks cheap money and protection against failure partly in exchange for their providing a place to deposit money, earn interest and get credit, along with economic stability, for everyone. Financial innovation, increased competition and deregulation changed all that: the period of dramatic transformation left the poor and working class without services, as banks came under competitive pressure.
Once upon a time, post offices provided banking functions, giving the ordinary customer a brick-and-mortar office to park their cash. Then competition from higher-interest rate banks changed all that; with shrinking demand, postal banking was dismantled in 1967. Continue reading "How the Other Half Banks"
Sep 30, 2015 Camille Gear RichFamily Law
Who’s afraid of the welfare queen? Apparently everyone. These days, the average American sees the welfare queen as a key threat to social order; the conservative movement’s battle for hearts and minds decisively has been won. Numerous scholars, from Michele Gilman to Kaaryn Gustafson, have attempted to combat prevailing views of the welfare queen, providing us with an expansive, rich understanding of the ways in which the construct continues to shape contemporary poverty debates about poor single mothers. Ann Cammett, in her recent article recent Deadbeat Dads and Welfare Queens: How Metaphor Shapes Poverty Law, takes the conversation in a new, exciting direction; she demonstrates how the discursive constructs used to pathologize poor mothers have morphed to implicate us all.
Family law scholars know that discursive inquiries are an invaluable resource, particularly when gender constructs play a central role in the way legal claims are articulated in a given domain. However, thus far, family law scholars have focused on how ideal tropes and stories of perfect, heroic motherhood are used by the State to police women and families. Recent tropes of ideal motherhood include “the Soccer Mom” and “the Tiger Mom.” These motherhood constructs give form to middle class anxieties about the competing and conflicting responsibilities imposed on women—propositions that make ideal motherhood elusive.
Instead of focusing on the ideal mother, Cammett turns to a trope of stigmatized motherhood: the welfare queen. Her work reveals the construct’s role in shaping the identities of poor women, as well as its role in shaping the self-perception of a far larger group of citizens, ones not normally associated with this construct. In this endeavor, Cammett expertly weaves together history and psychology to reveal a disturbing truth: The welfare queen construct exerts disciplinary power over us all, regardless of gender and class position. Continue reading "Who’s Afraid of the Welfare Queen? Stigmatized Motherhood, Tropes and the Policing of the American Poor"
Sep 29, 2015 Margot KaminskiTechnology Law
When the law faces a new technology, a basic question is who governs it and with what rules? Technological development disrupts regulatory schemes. Take, for example, the challenges the Federal Aviation Administration (FAA) now faces with drones. The FAA usually regulates aircraft safety. Drones force the FAA to consider—and in some cases reject as outside the agency’s mandate—issues of privacy, spectrum policy, data security, autonomous decision-making, and more. The pace and complexity of recent technological change has led some to call for the creation of new agencies, including a Federal Robotics Commission. But given the significant hurdles involved in agency creation, it is valuable in the short run to assess what tools we already have.
In Unfair and Deceptive Robots, Woodrow Hartzog takes up the question of who will govern consumer robots. Hartzog proposes that the Federal Trade Commission (FTC) is best equipped to govern most issues that consumer robots will soon raise. He reasons that the FTC is well prepared both as a matter of subject-matter expertise and as a matter of institutional practice. Continue reading "Who Regulates the Robots?"
Sep 28, 2015 Aya GruberCriminal Law
I had just pulled up Janet Halley‘s compact and insightful (and incite-ful) commentary on sexual assault for re-reading in preparation for this Jot, when a student came in to chat. This student was involved in a soon-to-be launched pilot program, overseen by the University’s Title IX office and funded by grant money, to provide peer counseling to those identifying as sexual assault victim/survivors. The student-counselor explained that the program aimed to “point students in the right direction” and give them a “confidential sounding board.” The student further stated that the program would be “good for professors” because the peer counselors would deal with contextualizing class topics counselees might find uncomfortable or traumatizing. “You all shouldn’t have to do that,” she opined, “you should be able to just teach.” So I asked, “What are you going to tell students who have concerns about class material being traumatizing?” “I’m not sure yet,” she said, “we are going to receive trauma training from an expert.” “An expert on what?” I asked. “I guess trauma,” she replied. The student-counselor proceeded to reassure me that if a student came to her complaining about a lack of sufficient trigger warnings, she would tell her to “get over it.”
This is the new world we teachers and scholars of criminal law live in. And although the student I spoke with was quite level-headed and well-intentioned, she is soon to be part of this powerful culture. In this new world, the “one-in-four” claim is not just a rallying cry of feminist advocates meant to counter widespread sexist beliefs that rapes never occur and women are liars. Today, the statistic is the “truth” that underlies extreme, one-sided, punitive disciplinary policies and a marked shift in free speech/academic freedom norms. We are told to assume that a quarter of the women (not to mention a tenth of the men) in the class have been raped and traumatized and accordingly to teach rape in a psychologically appropriate manner (at the risk of severely damaging students and our own reputations/careers if we misapprehend the propriety of our methodology). Classes are a source of danger, and student activists call for speech control in the name of safety. Thus, it is not surprising that my interlocutor’s paradigmatic example of a student complaint did not involve actual psychological trauma but rather a sense of injustice when the professor fails to provide appropriate trigger warnings. We find ourselves in the midst of what I am calling “anti-rape culture,” that is, a set of beliefs about what constitutes rape (many forms of sex), its psychological effects (ruinous), how frequently rapes occur (ubiquitous), and appropriate institutional responses (punitive), combined with a norm that “good” people (feminists, women, liberals, non-sexists, etc.) must adhere to such beliefs. Continue reading "Anti-Rape Culture"
Sep 25, 2015 Lily KahngTax Law
Calvin H. Johnson,
Organizational Capital: The Most Important Unsettling Issue in Tax, 148
Tax Notes 667 (2015), available at
SSRN.
In his article, Organizational Capital: The Most Important Unsettling Issue in Tax, Professor Calvin Johnson argues that the undertaxation of intangibles is “the most important, most damaging issue in tax policy” and proposes a radical solution to remedy the problem: a new tax based on the trading value of public companies.
As Johnson explains, intangibles are undertaxed because businesses deduct—rather than capitalize—most expenditures related to self-created intangibles. At the same time, businesses report income from self-created intangibles over a period of years. As Cary Brown demonstrated, allowing an immediate deduction for expenditures that produce future income is the equivalent of exempting the income from tax. Thus, much income from self-created intangibles is in effect tax free. Continue reading "Can the Smart Market Solve the Problem of Undertaxed Intangibles?"
Sep 23, 2015 Pat GudridgeConstitutional Law
Gillian Metzger is convinced of “[t]he central importance of supervision.” “Supervision and other systemic features of governmental administration with which it overlaps … are fundamental in shaping how an agency operates and its success in meeting its … responsibilities.” (P. 1840.) Nonetheless “constitutional law stands largely aloft from the reality of administrative governance, with the Supreme Court refusing to subject systemic features of government operations to constitutional scrutiny.” (P. 1841.) This dissonance preoccupies Metzger’s article.
Available lines of thought, we know, lie right at hand. The Article II Take Care Clause jumps out as one beginning. Anti-delegation worries, originating in structural preoccupations, suggest another accessible constitutional skein. Metzger’s observations drawing out these threads make for easy reading. (Pp. 1874-1904.) The problem, she thinks, lies largely with courts and their adjudicative inhibitions. In both administrative and constitutional law, ideas of review, “cases” and “controversies,” parties to disputes, resolution and finality, and so on—all work against thinking through matters of system, supervision, “rightful hierarchy,” and so on. Judges are inclined to start with—are prone to hesitating absent—investigations of individual instances. Although she maps possible occasions for taking up questions of supervision directly, Professor Metzger acknowledges that there’s not much chance of provoking large-scale change in judicial orientations (and maybe shouldn’t be). Her several discussions, here too, are searching and extensive, thoughtful and clear. (P. 1859-70, 1904-09, 1914-18.) Continue reading "Someone Who’ll Watch Over Me"
Sep 22, 2015 Steve VladeckCourts Law
Richard Fallon, John Manning, Daniel Meltzer, and David Shapiro, The Federal Courts and the Federal System (7th ed., 2015).
There are casebooks, and then there’s Hart and Wechsler’s The Federal Courts and the Federal System, the brand-new seventh edition of which arrived this summer. It may seem odd to focus so much attention on the latest edition of a casebook that has been around since before the Brooklyn Dodgers won their only World Series. But this newest iteration by Richard Fallon, John Manning, Daniel Meltzer, and David Shapiro is, for reasons I elaborate upon below, worthy of its own adoration—and should hopefully entice scholars who have long sought other teaching materials to return to the gold standard.
I
As Akhil Amar has explained, the first edition of “Hart and Wechsler,” published in 1953, “succeeded in defining the pedagogic canon of what has come to be one of the most important fields of public law in late twentieth-century America,” i.e., Federal Courts. And whereas most other legal disciplines preceded the casebooks that purported to define them, Hart and Wechsler all but created not just a curriculum for Federal Courts classes, but also a far deeper sense of why such a course was worth teaching—and taking. Continue reading "The Keepers of the Federal Courts Canon"
Sep 21, 2015 Cristie FordCorporate Law
Chris Brummer,
Disruptive Innovation and Securities Regulation, 84
Fordham L. Rev. — (forthcoming, 2015), available at
SSRN.
In the early 2000s, I spent some time as a fly on the wall of the floor of the New York Stock Exchange. I talked to specialists—those whose job it was to personally manage trading and make a market for particular high volume stocks—including one who had just earned a coveted specialist’s “seat” (price: $3 million). Once upon a time, a seat was practically a license to make money. As market-makers, specialists bought low and sold high on their own accounts. The NYSE specialists I spoke to talked about decimalization, new at the time—the fact that securities were now quoted in pennies instead of in eighths or sixteenths of a dollar. They agreed that it had cut into their profitability. They were already using an electronic system to pair off small customer orders, and they agreed that it actually handled more order volume than they did. None of them seemed to have given much thought to electronic trading, alternative trading platforms, or the derivatives market. Certainly none of them seemed to think these were existential issues that would undermine their 130-year-old business model.
Securities markets are utterly transformed today. Specialists, as they were then, are gone. Electronic trading networks reign, as does algorithmic trading. The NYSE handles less than 20% of US stock trades (it was 80% just a decade ago). Chris Brummer’s new article, Disruptive Innovation and Securities Regulation, is a gorgeous account of how this happened, how law intersected with innovation, and what the implications might be. Continue reading "Clayton Christensen comes to Wall Street"
Sep 18, 2015 Jacob E. GersenAdministrative Law
Sharon Jacobs,
The Administrative State’s Passive Virtues, 66 Admin. L. Rev. 565 (2014), available at
SSRN.
The federal bureaucracy has long been accused of torpor. Administrative agencies, we are oft told, take years to do much of anything. Whether this supposed-sluggishness is because of intentional institutional design, judicial review, administrative preference, or the inherent conservativeness of bureaucracy is unclear. In recent years, moreover, the core descriptive claim that agencies are too slow and do too little has been significantly undermined. Nevertheless, positive accounts of administrative delay are rare and under-theorized. Sharon Jacobs’s The Administrative State’s Passive Virtues is a long overdue updating and application of Bickel’s notion of the passive virtues in the context of courts, as applied and developed for the Administrative State.
To oversimplify a bit, Bickel argued that given the counter-majoritarian nature of courts in the United States, judicial actors can, do, and should utilize justiciability doctrines to avoid or defer deciding certain difficult or politically controversial cases. This practice of avoiding certain decisions was said to be desirable because it avoided potential attacks from the other branches or citizens and allowed the other branches with a better democratic pedigree to decide difficult political issues. Though well-known and rhetorically powerful, Bickel’s passive virtues suffered a mix of acute and chronic intellectual beatings. But Bickel’s ghost remains a powerful trope in modern constitutional law and Jacobs’s point is not that Bickel was right about courts. Rather, it is that agencies have similar structural characteristics to courts in the ways that motivate Bickel and that we lack a theory or really even a concept of administrative passive virtues. Until now. Continue reading "The Administrative Passive Voice"
