May 13, 2014 Scott HershovitzTorts
Imagine you are trying to write a mission statement for tort law. What aspiration would you put on paper? Tort theorists will find Linda Radzik’s answer at once familiar and foreign. In Tort Processes and Relational Repair, Radzik suggests that tort should pursue corrective justice. But she rejects the familiar Aristotelian conception of corrective justice, on which wrongdoing calls for compensation that offsets the harm caused. Instead, she suggests that corrective justice requires reconciliation. According to Radzik, tort should aim to repair the relationships ruptured by wrongdoing, rather than the harms that result from it.
The problem with the Aristotelian picture of corrective justice, Radzik says, is that it mistakes what’s wrong with wrongdoing. If you think that corrective justice consists in compensation for harm done, Radzik explains, then you are apt to think that what is wrong with wrongdoing is that it damages something that belongs to the victim, or deprives her of something she is entitled to have. But, as Radzik points out, there are wrongs that do not result in harms, and harms that did not result from wrongs, so it hardly seems like harm could be the essence of wrongdoing. Continue reading "Patching Things Up"
May 12, 2014 Gerry W. BeyerTrusts & Estates
Professor Daniel B. Kelly’s well-researched and carefully reasoned article discusses the traditional justifications for restricting testamentary freedom, not only from a legal perspective, but also an economic or functional one. The article first discusses the structure and goal of American succession law and the relevance of distinguishing between the ex ante perspective versus the ex post perspective. Next, the article explains the economic justifications for restricting testamentary freedom. Finally, the article critically analyzes the legal limitations on testamentary freedom.
Professor Kelly begins by noting the fundamental principle of American succession law—testamentary freedom. One justification for the law generally deferring to owners of property in deciding how to utilize or transfer their property is that it promotes social welfare. An advantage of testamentary freedom is that it aligns an individual’s “incentive to work, save, and invest with what is socially optimal,” which would facilitate long-term capital accumulation and productivity. Another advantage of testamentary freedom is that, in many situations, the testator is likely to be better informed than legislators or judges on how best to distribute the testator’s property. Finally, Professor Kelly notes that testamentary freedom may benefit familial relationships. However, even with all these advantages, a system based on testamentary freedom does not always coincide with the overall goal of advancing social welfare, at least in part because the law sometimes fails to incorporate the ex ante perspective. Consequently, the issue arises of when should the courts facilitate testamentary freedom, even though doing so permits a testator to assert “dead hand” control, and when should the courts restrict testamentary freedom, even though doing so means intervening in the testator’s disposition of property. Continue reading "“Take your stinking paws off [my property], you damned dirty [judges and legislators]!”*"
May 9, 2014 Juliet StumpfLexImmigration
César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. (forthcoming 2014), available at SSRN.
When the news came out that nearly half a million noncitizens now find themselves in immigration detention, it struck me that this may be the most invisible civil-rights issue of our era. Immigration Detention as Punishment, by César Cuauhtémoc García Hernández, offers a compass through this tricky and contested terrain.
Formally, immigration detention is a civil status, an administrative adjunct to deportation. Detained noncitizens have lesser procedural protections against unnecessary or excessive detention than the criminal justice system provides to pre-trial detainees. Yet, immigration detention functions to deprive noncitizens of social and physical liberty in the same way as criminal incarceration. The government detains noncitizens in the same jails and prisons as criminal defendants and the convicted. The lives of noncitizens in detention are regulated in the same way as the lives of those whose confinement results from the criminal justice system. Continue reading "Civilizing Civil Detention"
May 7, 2014 Eli WaldLegal Profession
Context matters to lawyers. The representation of clients, advice-giving, advocating, drafting, and negotiating—indeed, the very exercise of professional judgment—all take place in a context that shapes and informs lawyers’ decision-making. Context, however, plays only a minimal role in the American Bar Association’s Model Rules of Professional Conduct (“Rules”). While some comments to the Rules often provide contextual examples, an underlying theme of the Rules is their universal appeal: the Rules are explicitly meant to be a one-size-fits-all model for all lawyers, irrespective of context. Some argue that the universal nature of the Rules renders them conceptually anachronistic and practically useless, and have called for the promulgation of rules of conduct more in tune with the increasingly diverse realities practicing lawyers face. Such a contextual critique consists of two steps. The first is empirical. Promulgating rules that meaningfully address the realities that lawyers face in practice requires an empirical understanding of these very realities. The second step is normative. Once empirical evidence is gathered, one has to decide what to make of it and whether and how to incorporate it into the Rules.
Lawyers in Practice: Ethical Decision Making in Context, a new volume of empirical work edited by Leslie Levin and Lynn Mather, significantly contributes to this universal-contextual discourse. It consists of sixteen excellent chapters examining in detail lawyers’ decision-making processes across thirteen different legal contexts including family, immigration, and personal injury, as well as corporate, securities, and IP law. “[T]he organized bar and many law schools,” write the editors, “continue to focus their discussion of legal ethics primarily on bar rules of professional conduct. That approach, this book suggests, is a serious mistake.” (P. 4.) Such a focus on the Rules is a mistake, assert Levin and Mather, because it ignores the importance of context: “[t]he chapters in this book look at lawyers’ decisions from the bottom up—that is, from the perspective of lawyers in practice—and not from top-down rules that often reveal more about the aspirations of the profession than the reality.” (P. 11.) “We hope,” conclude the editors, that “this book will help narrow the gap between what sociological scholars are learning about lawyers’ ethical decision making in context and the legal profession’s approach to the teaching and regulation of lawyers.” (P. 21.) Continue reading "The Importance of Context"
May 6, 2014 Kunal ParkerLegal History
In the past decade, there has been an explosion of wonderful work on the history of immigration and citizenship law. Cindy Hahamovitch’s No Man’s Land ranks with work of Mae Ngai, Daniel Kanstroom, Kelly Lytle Hernández, and others. The book is essential reading for historians of twentieth century immigration. It offers a brilliant account of the forces that have shaped modern immigration law and of the way immigration law categories have acquired meaning “on the ground.”
No Man’s Land is a meticulous and detailed study of the post-World War II agricultural guest-worker program as it applied to Jamaican workers. Immigration historians have long been aware that immigration is a complex story of both “push” and “pull” factors, developments in the home country and those in the receiving country. However, most historians focus on just one part of this dyad and make formulaic or empty gestures in the direction of the other. Not Hahamovitch. No Man’s Land pays serious attention to changing conditions in both Jamaica and the United States. The book operates on multiple scales. It situates the Jamaican guest-worker program in the larger geopolitical context of World War II and the Cold War; pays attention to horse-trading between the United States and Jamaica over the terms on which Jamaican workers would work in the United States; examines in considerable detail the conditions under which Jamaicans worked in different parts of the United States; discusses the efforts of American lawyers who sought to prevent exploitation of Jamaican guest-workers; and even focuses on the correspondence between Jamaican workers and their families back in Jamaica. Continue reading "Guestworkers In Postwar America: A New History"
May 5, 2014 Brian BixJurisprudence
In legal philosophy, as in many scholarly areas, there is a “good and original” problem: the work that is very good tends not to be particularly original (usually being rather a careful modification of existing ideas), and the work is truly original tends not be very good at all. There are occasional exceptions, and one of these in the area of legal philosophy is the work of Mark Greenberg, who in recent years has developed, through a series of articles, a significant, and significantly novel approach to the nature of law. As will be described, Greenberg’s theory is distinctive and refreshingly heretical.
Greenberg’s approach is in sharp contrast with what he calls “the Standard Picture,” a view he believes to be assumed or accepted, but rarely argued for, in connection with most of the currently popular theories of the nature of law. Under the Standard Picture, when legislators enact a statute, they directly and straightforwardly add to our law(s). At the same time, as Greenberg points out, lawyers, legal theorists, and law students – and everyone else who has looked seriously at the process of statutory interpretation in actual cases – know that the way statutes add to the law(s) is not that direct or that clear. This is shown indirectly in the way that competent judges and practitioners, acting in good faith, often disagree about the legal effects of a statute (in application to actual or hypothetical sets of facts), with disagreements often occurring at a basic level (e.g., should we focus on the plain meaning of the statute’s text, or should we focus on what the lawmakers intended to do). As the article points out, judges who disagree about statutory interpretation rarely come equipped with arguments about why some factors are relevant and others are not, or why some factors should be given greater weight than other (relevant) factors. As Greenberg indicates, any such argument would likely be in terms of why – and when — the actions of legal officials affect our moral rights and duties. Continue reading "A Truly Different Understanding of Law and Morality"
May 2, 2014 Chris BuccafuscoIntellectual Property Law
One of the central tensions in the institutional design of innovation regimes is the trade-off between incentives and disclosure. Innovation systems, including intellectual property systems, are created to optimize creative output by balancing ex ante incentives for initial creators with ex post disclosure of the innovation to follow-on creators and the public. According to accepted theory, the more rigorous the disclosure—in terms of when and how it occurs—the weaker the incentives. But a fascinating new experiment by Kevin Boudreau and Karim Lakhani suggests that differences in disclosure regimes can affect not just the amount of innovation but also the kind of innovation that takes place.
Boudreau and Lakhani set up a tournament on the TopCoder programming platform that involved solving a complicated algorithmic task over the course of two weeks. All members of the community were invited to participate in the tournament, and contest winners would receive cash prizes (up to $500) and reputational enhancement within the TopCoder community. The coding problem was provided by Harvard Medical School, and solutions were scored according to accuracy and speed. Importantly, the top solutions in the tournament significantly outperformed those produced within the medical school, but that’s a different paper. Continue reading "Open and Close Innovation Regimes: An Experiment on Institutional and Organizational Design"
Apr 30, 2014 Nicole HuberfeldHealth Law
The legislative history of the Patient Protection and Affordable Care Act (ACA) is dizzyingly complex and maddeningly opaque. Happily, a guide to this law’s history was published recently and undoubtedly will become an essential piece of understanding the puzzle of the ACA. Though John Cannan wrote the article to instruct law librarians in the modern methods of tracking increasingly intricate legislative history, anyone engaged in studying the implementation of the ACA and the ongoing challenges to that law will benefit from the meticulous detail this article provides.
Traditional sources of legislative history will thwart the casual researcher seeking to understand the provisions of the ACA. At one end of the spectrum, the United States Code Congressional and Administrative News (USCCAN), an ordinarily reliable source of legislative history, has no documentation for the ACA and one unrelated committee report for the ACA’s companion legislation, the Health Care Education and Reconciliation Act (HCERA). At the other end of the spectrum, THOMAS contains more legislative history than could possibly pertain to the subject matter of the ACA, yet it provides no guideposts for wading through the legion of amendments that appear to have applied to the ACA. The Justices called the legislative history impenetrable during the severability oral arguments in NFIB v. Sebelius. Cannan makes the impenetrable understandable by diligently tracking the genesis and progress of two House bills and three Senate bills that became the ACA so that we can understand how to find the history that exists between these extremes. Continue reading "Farewell, School House Rock (Understanding Legislative History through the Lens of the ACA)"
Apr 29, 2014 Ann TweedyEquality
Robert Alan Hersey, Jennifer McCormack, & Gillian E. Newell,
Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past, Ariz. Legal Stud. Discussion Paper 14-01 (2014), available at
SSRN.
I strongly recommend this paper not only for its immediate subject—the struggles that indigenous peoples face in proving land claims due to colonial governments’ distrust of evidence on oral history—but also because it helped me understand the limitations of my own perspective.
Robert Alan Hershey, Jennifer McCormack, and Gillian E. Newell describe the disconnect between Western notions of cartography and spatial theory and those of indigenous peoples, particularly indigenous peoples located in North America, Australia, and New Zealand. They then explain that some of these groups, such as the Ngurrara in Australia have had success in getting their rights recognized by creating maps that incorporate oral history, thus adopting a hybrid form of evidence that is both documentary and respectful of indigenous ways of knowing such as through oral history. Continue reading "Oral History and Perceptions of Subjectivity"
Apr 28, 2014 Philomila TsoukalaFamily Law
Noa Ben-Asher,
Conferring Dignity: The Metamorphosis of the Legal Homosexual, 37
Harv. J.L. & Gender (forthcoming 2014), available at
SSRN.
In United States v. Windsor, the Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) as unconstitutional. The decision renders married same-sex couples eligible for the same federal benefits (i.e., tax treatment and social security benefits) as their opposite-sex counterparts. In the midst of a largely celebratory reception of the decision, Noa Ben-Asher offers a much-needed critical analysis of Windsor’s bundle of rhetorical and doctrinal sticks. In Conferring Dignity: The Metamorphosis of the Legal Homosexual, Ben-Asher takes us through a genealogy of the “legal homosexual” in Supreme Court case law. As Ben-Asher notes, this genealogy begins with moral opprobrium and ends in Windsor’s exalted language about the dignity of state-sanctioned, same-sex couples. Recognizing dignity: Who can be against that, right? Ben-Asher demonstrates that in our post-realist world the story is more complicated.
The first part of Ben-Asher’s contribution is an astute rendering of the Supreme Court’s evolving doctrinal constructions of homosexual conduct and identity. Ben-Asher identifies four stages in what she terms the “metamorphosis of the legal homosexual.” In each stage, Ben-Asher reveals distinct moral assessments of the legal homosexual’s nature and conduct, as well as different understandings of the state’s role in the regulation of morals. Continue reading "Same-Sex Marriage in Windsor and the Indignities of Dignity"
