Jun 9, 2015 Elizabeth ThornburgCourts Law
Opponents of civil litigation portray it as one massive resource suck, focusing on its transaction costs and ignoring its social benefits–not only fair and accurate resolution of disputes, but also the potential for improved compliance with the laws governing civil society. Thus the current round of discovery rule amendments recite the usual claims about the expense of discovery, despite empirical research showing that discovery costs are actually quite modest in most cases. A number of civil procedure academics question the need for those new limits, even considering only costs.
Discovery’s benefits, while harder to measure, come in a number of forms. My last Jotwell essay highlighted the egalitarian information-sharing function of discovery. Steve Burbank’s forthcoming article, Proportionality and the Social Benefits of Discovery: Out of Sight and Out of Mind?, reminds us that lawsuits, including discovery, reflect the deliberate congressional policy choice of enforcing law through private litigation. And now Joanna Schwartz’s excellent article, Introspection Through Litigation, adds to the “benefits” side of the analysis. While Burbank focuses on benefits external to the litigants themselves, Schwartz calls our attention to a litigant-centered phenomenon: self-study, based on information unearthed and marshaled in the process of being sued. Continue reading "Discovery and Self-Improvement"
Jun 8, 2015 William FunkAdministrative Law
Adrian Vermeule, ‘
No’ (Review of Philip Hamburger, Is Administrative Law Unlawful?
),
Texas L.Rev. (forthcoming), available at
SSRN.
Last year, the University of Chicago Press published “Is Administrative Law Unlawful?” by Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at the Columbia University School of Law. A book by a named professor at a top-ten school published by a respected academic publisher with a provocative title would seem to be a must-read book for adlaw aficionados. His conclusion is that administrative law is unlawful, root and branch, because it is unlawful for administrative agencies to issue any rule or order that binds private parties. This is more than provocative; it is radical. Radically wrong. So wrong, one might wonder how it came to be published, and in any case so wrong that no one would take it seriously. Not so fast. In March, Justice Thomas cited it extensively in his concurrence in Department of Transportation v. Ass’n of American Railroads, 2015 WL 998536 (2015) to support his conclusion that the Passenger Rail Investment and Improvement Act of 2008 is an unconstitutional delegation of legislative authority, concluding:
We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.
In his review of the book, Adrian Vermeule, the John H. Watson Professor of Law at Harvard Law School, steps up to be the Dr. Van Helsing to drive the stake through the heart of this vampire. He minces no words:
The book makes crippling mistakes about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target.
And that’s just the beginning. Continue reading "Is Administrative Law Unlawful? NO!"
Jun 5, 2015 Matt BodieWork Law
Where does the employee end and the employer begin? In The New Cognitive Property, Orly Lobel confronts us with employers’ ever-expanding reach into the craniums of their employees, both past and present. The article continues Lobel’s groundbreaking work into the intersections between employment law, intellectual property, and what she terms “human capital law.” Employers are bringing new legal tools to bear against employees to keep their ideas within the firm and prevent them from using their talents outside their current workplace. And as her research makes clear, the costs may be borne not only by these workers, but by our society and its capacity to innovate.
Lobel’s 2013 book Talent Wants to Be Free explained, for a more general and business-oriented audience, how restrictions on employees such as covenants not to compete, trade secrets, and the work-for-hire doctrine limit employees’ capacity to develop and use their human capital. As a result, workers are less able to develop this capital and less likely to want to do so. These themes are updated and further developed in The New Cognitive Property, which spends a great deal of time on the legal mechanisms themselves. Her discussion of human capital restrictions circa 2015 is an eye-opening read even for those well-versed in the traditional employer tools in this area. You may know about the shop-right doctrine, but did you know that employers are laying claim to employees’ ideas that are too abstract to be patented? You have likely heard about trade secret law, or even “inevitable disclosure,” but how about the criminalization of trade secret law, where one employee was sent to jail for emailing himself code that was largely open-source? And while covenants not to compete have a long and familiar lineage, Lobel brings us up to date with a dizzying array of post-employment restrictions: non-solicitation, non-dealing, non-poaching, and non-hiring clauses. Using a series of vivid examples, The New Cognitive Property artfully explores the manifold ways in which employers are claiming more and more of their employees’ human capital for themselves. Continue reading "We Are What We Work"
Jun 3, 2015 Solangel MaldonadoTrusts & Estates
The primary goal of the law of wills is to allow individuals to decide how to distribute their property upon death. Yet, the vast majority of states prohibit minors under the age of 18 from distributing their property through a will. Interestingly, few scholars have questioned the reasons underlying this categorical denial of testamentary capacity to minors.
In his 2014 article, Rethinking the Testamentary Capacity of Minors, Professor Mark Glover examines the possible rationales for the rule and concludes that none of these justifications warrant denying all minors testamentary freedom. First, he addresses the justification most often cited by courts—the need to protect minors from the consequences of their own foolish decisions. Although no one would dispute that children do not always consider the potential consequences of their decisions (neither do adults), Professor Glover quickly illustrates that the testamentary context is probably the one area in which children need the least protection from the consequences of their imprudent decisions. To put it bluntly, a will only takes effect upon the testator’s death. As such, a child testator (like other testators) will not be alive to suffer the consequences of her foolish testamentary decisions. Continue reading "Too Young for a Will?"
Jun 2, 2015 Mark GeistfeldTorts
The interaction between medical malpractice law and the provision of health care is the subject of an ongoing policy debate. Do physicians practice “defensive medicine” to avoid being sued? Does the high cost of liability insurance or the looming threat of unfounded malpractice claims drive physicians from particular specialties or regions of the country? These issues have dominated the debate for years. Recently, another issue has gained prominence. Does malpractice law deter physicians from adopting innovative procedures? This is probably more important than the question of whether tort law induces the practice of “defensive medicine.” Whereas “defensive medicine” ordinarily increases the cost of health care via the provision of unnecessary medical treatments, the deterrence of medical innovations has a direct impact on health outcomes.
Gideon Parchomovsky and Alex Stein argued in 2008 that tort law deters medical innovations because the legal standard of required or reasonable care is defined by customary medical practices. A physician who innovates necessarily departs from custom. When her innovations cause harm, she faces the prospect of incurring malpractice liability for her apparently “unreasonable” behavior. That physicians might forego non-customary treatments in order to shield themselves from potential tort liability has been confirmed by a series of empirical studies conducted by Michael Frakes and others. Frakes and his colleagues have found that after a state has rejected local customs in favor of national standards for defining the required care, local surgery rates converge toward the national rate. When the standard of reasonable care was defined by local customs, physicians who followed these practices could avoid the threat of liability that they would face if they instead followed national norms. When jurisdictions shifted the legal measure of proper care from local to national customs, a significant number of physicians began to comply with the national practices. Apparently, this change in behavior was motivated by the change in tort law’s test of reasonable care, not by any independent medical evaluation of whether compliance with the local or national custom was in the best interests of the patient. Continue reading "Does Tort Law Stifle Innovative Medical Treatments?"
Jun 1, 2015 Daniel ShaviroTax Law
For good reasons on balance, the best academic work in tax (and other) law has moved far away in recent decades from focusing primarily on which answers to particular questions are legally correct. Not only have scholars wanted to pursue larger game than just the current, inevitably flawed, state of the law, but it is often hard to say what “legal correctness” means. Writing about policy, rather than just about legal correctness, not only broadens the menu of possible topics, but permits one to devise clearer criteria for assessing the merits of competing arguments.
There is, however, a downside to thus broadening, diversifying, and deepening the menu of favored topics. Having a positive influence on real world legal outcomes, especially if one can get there without having to tailor one’s analysis or conclusions in the manner of either a politician or a hired litigator, is both good in itself and something that we ought to care about—both as lawyers and as academics—as a matter of professional responsibility.
It is therefore a great thing to see tax academics and other members of the broader tax policy community actually swaying the outcome of a Supreme Court case in a good way. This happened in Comptroller v. Wynne, decided on May 18, 2015, in which an unusual Supreme Court majority composed of three conservatives (Alito, Kennedy, and Roberts) and two liberals (Breyer and Sotomayor) converged to strike down a Maryland income tax rule as discriminatory against interstate commerce. The majority opinion not only extensively cited work by tax scholars, but really relied on it, not just to decide the case at hand, but also to clarify the often-vexed law of how one should define discrimination under the dormant commerce clause. The Court drew on two amicus briefs (one by Michael Knoll and Ruth Mason and the other lead-authored by Alan Viard) which arose out of and/or applied academic work by both sets of authors, and gave both coherent economic content and usable formulations to the potentially nebulous idea of tax discrimination. Continue reading "Discrimination Against Interstate Commerce vs. Double Taxation"
May 29, 2015 Amy MonahanHealth Law
Brendan S. Maher,
Regulating Employment-Based Anything, 99
Minn. L. Rev. (forthcoming 2015), available at
SSRN.
Employer-provided health care occupies an uneasy position within health law. On the one hand, it is the primary source of health insurance coverage for non-elderly Americans and provides relatively robust coverage. On the other hand, linking health insurance availability to employment status and subsidizing such purchases through the tax code raises significant fairness concerns. The explanation for the Affordable Care Act’s continued reliance on employer-provided coverage was largely based on political expediency: health care reform had no chance of passing if it looked like the future of employer-provided health care was threatened. We were assured, after all, that if we liked our health plan we could keep our health plan.
Brendan Maher’s article, Regulating Employment-Based Anything, seeks to move our discourse away from merely relying on political expediency arguments to try to articulate the theory behind encouraging socially desirable goods to be provided through the compensation deal and, perhaps even more importantly, to articulate the theory behind employer-based interventions versus other forms of market interventions. While the article is not focused solely on health care, I found it very helpful in thinking through many of the issues involved in attempting to build a system of universal health coverage around an existing employer-based system. Continue reading "Putting Employer-Provided Health Care in Context and Thinking about the Future"
May 27, 2015 Roman HoyosLegal History
For those of us working on the relationship between law and the American state, Max Edling’s first book, A Revolution in Favor of Government, was a welcome and necessary intervention. Work on the nineteenth-century state was slowly moving beyond the “courts and parties” thesis that portrayed the early American state as “weak.” But we lacked a systematic study of the United States Constitution as a blueprint for a strong American state. Edling filled that gap by demonstrating that the Constitution of 1787 established the foundations for a fiscal-military state that looked strikingly similar to its European competitors. A crucial piece to revising our understanding of the early American state was in place.
Traditional views die hard, however. For example, Sheldon Pollack, in War, Revenue, and State Building, argues that the early American fiscal-military state “remained extraordinarily weak” until the Civil War, and concludes that it “must be viewed as a notable failure” because of its lack of substantial fiscal-military powers (100-101). In A Hercules in the Cradle Edling challenges this construction by demonstrating how the federal government used the powers delegated to it by the 1789 Constitution to build a state with enormous extractive powers. Instead of reading the story of the American state backwards and comparing it to modern states, or evaluating it in light of modern theories of the state, Edling reads it forward comparing it to its contemporaries. Most fundamentally Edling interrogates the objectives of the early American state, and its ability to accomplish them. In other words, rather than asking whether the early American fiscal-military state was “weak” or “strong”, he asks whether it was effective. Continue reading "The Effective Early American State"
May 26, 2015 Bethany BergerLexNative Peoples Law
Federal Indian law fits awkwardly in American constitutional doctrine, so much so that Justice Clarence Thomas has declared it “to say the least, schizophrenic.” Tribal nations are sovereign to some degree—they are not bound by the U.S. Constitution, possess substantial sovereign immunity, have police departments, courts, and broad regulatory powers, and hundreds of U.S.—tribal treaties still influence federal law. Yet the federal government has tremendous power over tribes and their members, states have significant jurisdiction in their territories, and tribal jurisdiction over non-tribal citizens is limited. Only a few words in the Constitution directly reference Indians or tribes at all. Obsolete phrases in the Apportionment Clause and Fourteenth Amendment exclude “Indians not taxed” from the population for legislative apportionment. More importantly, the Indian Commerce Clause grants Congress the power to “regulate commerce . . . with the Indian tribes.” Modern Supreme Court decisions locate Congress’ broad authority in Indian affairs in the Clause; more recently, Justice Thomas and some scholars have argued that this power is narrowly limited to trade; while other scholars argue that the Clause provides a constitutional basis for both state exclusion from Indian affairs and tribal sovereignty.
In a groundbreaking new article, Beyond the Indian Commerce Clause, Gregory Ablavsky rejects all sides of this debate. Ablavsky convincingly argues that although a narrow construction of commerce is not consistent with original understanding, the broader implications of the Indian Commerce Clause are deliberately ambiguous. Following an emerging approach to constitutional history, Ablavsky looks beyond the words of the Clause and its limited history to a greater range of constitutional actors and a longer temporal context. Canvassing statements and correspondence by the Washington administration, state officials, and others, Ablavsky argues that the founders located the Indian affairs power in the general constitutional status of the United States, and particularly the interplay of the nation’s military, territorial, commercial, and diplomatic affairs powers. (For the ways that concerns about Indian affairs affected the formulation of these constitutional powers, see Ablavsky’s The Savage Constitution, 63 Duke L.J. 999 (2014).) Continue reading "Not So Schizophrenic: The Founders’ Understanding of Indian Affairs and the Constitution"
May 25, 2015 Rebecca RoipheLegal Profession
This is a bad time for the police officers. Last year, a series of cases in New York federal court exposed the NYPD’s stop and frisk policy as unlawful and racially biased. Following the shooting in Ferguson and the death of Eric Garner in Staten Island, thousands took to the streets to protest. The prosecutors in these two cases were widely criticized as well for failing to obtain indictments against the officers. Many wondered whether the prosecutors were complicit in a system fraught with inequality and prejudice. Secretary of State, Hilary Clinton, responded that the criminal justice system is “out of balance.” In a new article, Russell Gold argues that we can help restore the reputation of the criminal justice system by implementing what he calls, “administrative suppression.”
Administrative suppression would require prosecutors to decline to use illegally seized evidence even if courts would rule the evidence admissible. Prosecutors, in other words, have a constitutional and ethical obligation not to use evidence seized in violation of an individual’s Fourth Amendment rights. In the past few decades, the Court has radically restricted the scope of the exclusionary rule, and as a result, illegally seized evidence is often admissible in criminal cases. Gold argues that these decisions only pertain to the judicial branch. Rather than exploit the increasingly weak remedy to obtain more convictions, prosecutors, in their role as arbiters of justice and agents of the executive branch, should respond by refusing to use the tainted evidence in their cases. Continue reading "Are Prosecutors the Constitution’s Gatekeepers?"
