The article that made me think hardest about American constitutional law this year was not a work of legal scholarship. It was historian Rick Perlstein’s meditation on the making of modern American conservatism.
Perlstein begins his article by describing the “rough consensus” among historians about how the right became the dominant political force in American politics in the second half of the twentieth century. The story starts in 1955, when William F. Buckley Jr. founded the National Review to combat the decades-long marginalization of political conservatism. Buckley banished John Birchers, anti-Semites, and fanatical Ayn Randians and “fused the diverse schools of conservative thinking—traditionalist philosophers, militant anti-Communists, libertarian economists—into a coherent ideology.” Fueled by support from white suburban voters, the new political conservatives thrived. Crucial to their success—or so the story goes—was their denouncement of the “political surrealism of the paranoid fringe.” Particularly in the South, new movement conservatives sublimated the “frenetic, violent anxieties” aroused by race, and spoke instead of “stable housing values,” “quality local education,” and “colorblind constitutionalism.” Simply put, modern conservatism became a dominant force by eschewing what Richard Hofstadter called “the paranoid style in American politics.” Continue reading "The Paranoid “Fringe” in American Politics "
The Dwindling Taxable Share Of U.S. Corporate Stock, written by Steven M. Rosenthal and Lydia S. Austin, analyzes the available data regarding the ownership of corporate stock in the United States. Over the history of the income tax, most business capital has been invested in corporations, so an assumption that the income taxation of business meant income taxation of corporations was a reasonable assumption. Similarly, most owners of domestic capital were assumed to be taxable individuals.
One could, therefore, use as a starting point for any reform proposal, the idea that a corporation would be taxed at the stated corporate rates and would make distributions of earnings to individuals who would be taxed at the stated individual rates. Rationalization of business taxation has often aimed at eliminating the incentive to engage in business investment other than through corporate entities. This rationalization (or “integration”) using these standard assumptions about the nature of corporate holdings, involves pushing the corporate tax out to shareholders (by effectively reducing rates when corporate income is distributed), or pushing the individual tax into corporations (by effectively reducing the rate on dividends received). Continue reading " Who Gets Taxed When a US Corporation Pays Dividends?"
Gregory M. Stein, Reverse Exactions
, 26 Wm. & Mary Bill Rts. J.
(forthcoming 2017), available at SSRN
Some exactions are just bad. By this, I mean that they fail to mitigate the harms they were created to internalize. This struck me recently while I was researching privately owned public open spaces (POPOS), which are often exacted in exchange for a density bonus. Through my research, I determined that POPOS often fail to achieve the goals of good public space, in part because they are often exclusionary. I found myself wondering whether the citizens who were stuck with new dense buildings that block light and air, and who received only a poorly functioning POPOS in exchange, had any legal recourse.
My question, in effect, was whether a neighbor could bring an exactions claim in reverse. I was pleasantly surprised to find that Professor Gregory M. Stein had interrogated this very question in his recent article Reverse Exactions. Continue reading "Equalizing Exactions"
Rebecca Wexler, Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System
, 70 Stan. L. Rev.
(forthcoming 2018), available at SSRN
How pervasive are software-based information technologies in the criminal justice system these days? And what role does trade secrecy law play in blocking defendants’ access to technical information about the design of these technologies from which to assess their objectivity and accuracy?
The short answer to both questions is much more than you may have expected, as you will learn when you read Wexler’s fascinating and powerful new article on intellectual property in the criminal justice system. Among other things, the article shows just how ubiquitous these technologies have become in virtually every stage of the criminal justice system: from police investigations to risk assessment for bail setting to evidence prepared for or presented at trial to sentencing and parole decisions. When defense lawyers raise questions about the accuracy of the outputs of these technologies and seek access to source code or other technical documentation, courts have been quite receptive to arguments that non-disclosure is justified because the information is a trade secret. Wexler’s thesis is that there should be no trade secrecy privilege in criminal cases. Period. Protective orders can adequately protect any trade secrets implicated by a criminal defense discovery request. Continue reading "Questioning Trade Secret Privileges in Criminal Cases"
Ming Hsu Chen, The Administrator-in-Chief: The President and Executive Action in Immigration Law
, 69 Admin. L. Rev.
347 (2017), available at SSRN
Professor Ming Chen’s Administrator-In-Chief: The President and Executive Action in Immigration Law is an ambitious effort to peer inside the relationship between a president and administrative agencies. It is the executive branch equivalent to the legislative sausage. Professor Chen concludes that a president is on strongest footing when he “promot[es] practices of good government in agencies rather than trying to substitute his policymaking judgments for those of the agency.” (P. 359.) The article emphasizes that the president should focus on his control over three things: (1) coherent federal policy; (2) centralized agency discretion, ensuring consistency, and (3) coordinating actions across all agencies. The article concludes that procedural choices matter; the president should work hard to set a procedural example and to use his influence to encourage procedural choices that will strengthen the legitimacy of policies. Professor Chen argues that the normative justifiability of presidential policymaking rests on whether the president is promoting coherency, consistency and coordination.
While three case studies from the Obama Administration’s approach to immigration law guide the article’s analysis, the analysis includes lessons for any president. In developing these case studies, Professor Chen conducted interviews with government officials and immigration advocates. The subject of the first case study is President Obama’s use of agency guidance documents to announce the Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans (“DAPA”) policies. The second case study focuses on President Obama’s attempts to set removal and detention priorities. Professor Chen walks us through several incarnations of enforcement policies that attempted to express President Obama’s priorities for detention and removal. These policies called on local law enforcement to share information about individuals with federal immigration agents and to detain individuals while waiting for federal immigration officials to travel to a jail to take custody of an individual. The third case study examines the Obama Administration’s efforts to respond to a surge of asylum seekers at the Mexican border. Continue reading "Procedure Matters"
Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech
, 131 Harvard L. Rev.
(forthcoming 2017), available at SSRN
Under current US First Amendment jurisprudence, the government can do very little to regulate speech online. It can penalize fraud and certain other kinds of false or potentially misleading speech; direct true threats; and infringement of intellectual property rights and related speech. But it cannot penalize most harassment, hate speech, falsity, and other speech that does immediate harm. Nor can the government generally bar particular speakers. Last Term, the Supreme Court struck down a provision of state law that tried to prevent convicted sex offenders from participating in “social media” where minors might also be participating.
There are good reasons for most of the limits the courts have imposed on the government’s speech-regulating powers—yet those limits have left a regulatory vacuum into which powerful private entities have stepped to regulate the speech of US social media users, suppressing a lot of speech that the government can’t, and protecting other speech despite their power to suppress it. The limits these intermediaries impose, with some important exceptions, look very similar whether the speech comes from the US or from a country that imposes heavier burdens on intermediaries to control the speech of their users. Klonick’s fascinating paper explores the evolution of speech regulation policies at major social media companies, particularly Twitter and Facebook, along with Alphabet’s (Google’s) YouTube. Continue reading "From Status Update to Social Media Contract"
David Pozen, Freedom of Information Beyond the Freedom of Information Act
, 165 U. Pa. L. Rev.
1097 (2017), available at SSRN
The literature on the Freedom of Information Act is replete with familiar claims about FOIA’s shortcomings. It takes too long to get a response. Agencies over-withhold records. The exemptions to mandatory disclosure are too broad. Congress fails to adequately fund FOIA offices. Judicial remedies are difficult to pursue and often unavailing. And as I have argued, FOIA is overtaken by commercial and individual uses that do not promote democratic accountability. But rarely does scholarship in this area provide a compelling critique of the underlying premise of FOIA: that the Act, if functioning as envisioned, promotes the ideal of democratic accountability.
David Pozen’s Freedom of Information Beyond the Freedom of Information Act has compellingly questioned this fundamental assumption, giving me more pause than anything else I have read in quite some time. In essence, Pozen argues that FOIA acts as a regressive, not a progressive, tool, hobbling the administrative state in its missions to protect the public’s health, safety, and opportunities, all while rubber stamping the excess of secrecy that characterizes the national security state where transparency may be most needed. Continue reading "Is FOIA Actually Hurting Democracy?"
William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens
, 116 Mich. L. Rev.
(forthcoming 2018), available at SSRN
Parsimony is a vital concept in empirical scholarship. It holds that a simple model that explains things is preferable to a more complex model that explains just as much. The ideal model achieves a desired level of explanation with as few predictors and as little complexity as possible. For example, a regression model with three independent variables that explains a given amount of variance is preferable to a regression model with nine independent variables that does not explain more (or not sufficiently more). The key insight is that complexity is not always desirable or always undesirable; it must be justified by the amount of extra explanatory power that it purchases.
The concept of parsimony can help us make sense of the morass that is personal jurisdiction doctrine and scholarship. The Supreme Court continues to provide a fluctuating cast of more or fewer rules and caveats. Personal jurisdiction doctrine is, to a significant degree, the discursive practice of strengthening or adjusting a few core rules (e.g., Shaffer v. Heitner) or expanding, preserving, and creating caveat categories (e.g., Burnham v. Superior Court). Legal scholars debate whether we should account for new phenomena (e.g., Internet commerce) by adjusting existing categories or creating entirely new caveats and tests. The notion of parsimony offers tools to puzzle through such choices. It reminds us that we cannot simply insist that the creation of new doctrinal categories would be a better fit for new realities. Similarly, we cannot reject innovations simply because they would add complexity. Instead, the cost of doctrinal complexity must be justified by the benefit of a sufficiently better normative fit.
William Dodge and Scott Dodson’s forthcoming Personal Jurisdiction and Aliens does just that. It argues for a broadened national-contacts test for alien defendants. Under this test, the alienage status of a defendant breaks the shackles of a state-by-state contacts analysis. Instead, courts would consider the defendant’s contacts with the whole nation for state and federal causes of action in state and federal courts. This doctrinal innovation would add complexity by explicitly bifurcating (to some extent) the personal jurisdiction analysis based on the domestic or alienage status of the defendant. Is this added complexity justified? Continue reading "In Search of a Parsimonious Model of Personal Jurisdiction"
Tamara Belinfanti & Lynn A. Stout, Contested Visions: The Value of Systems Theory for Corporate Law
, U. Pa. L. Rev.
(forthcoming 2017), available at SSRN
Tamara Belinfanti and Lynn Stout’s Contested Visions: The Value of Systems Theory for Corporate Law, forthcoming in the University of Pennsylvania Law Review, brings systems theory to the theory of the firm. I picked the paper up expecting a cross-disciplinary reference to the work of Niklas Luhmann and other social theorists. But the reference here is to another branch of the systems inquiry, the cross-referents of which go to engineering, biology, and computer, environmental and management science. Belinfanti and Stout include a succinct and lucid primer of the basic points. They then deploy them against the most important point in the quadripartite case for shareholder value as the purpose of the firm.
A little law and economics background needs to be provided to show the importance of the intervention. Microeconomics does not yield shareholder value maximization as the purpose of the firm as a primary proposition. Indeed, in a frictionless world with complete markets, optimality would mean maximizing the yield to every actor connected to the firm rather than just the yield to the shareholders. Shareholder primacy emerges once frictions and incomplete markets are interpolated. It follows from four more particular assertions: first, an instruction to maximize for multiple constituents would be incoherent; second, the shareholder interest, as the residual interest, points management in the most productive direction; third, the shareholders are vulnerable, relatively speaking, because other firm constituents can protect themselves with contracts; and, fourth, a multiple constituent model would lack yardsticks with which to measure management performance, where the shareholder model can measure performance with standard metrics like the stock price and periodic earnings. Continue reading "A New Look at the Theory of the Firm"
Barbara A. Atwood, The New UFLAA: Providing Needed Standards for Efficiency and Fairness
, 39(4) Family Advocate
38 (2017), available at SSRN
In July 2016, the Uniform Law Commission gave final approval to the Uniform Family Law Arbitration Act (UFLAA). Barbara Atwood was the drafting committee’s Chair and Linda Elrod was its Reporter. In The New UFLAA: Providing Needed Standards for Efficiency and Fairness, Professor Atwood offers an overview of the UFLAA’s history, the problems to which it responds, and the hard choices that had to be made in its drafting.
Arbitration has a bad reputation in large segments of the legal profession and legal academy. It is associated with provisions in consumer and employment agreements—mandatory arbitration with class action waivers meant to make challenges to improper behavior both private and impractical, and there are documented instances of the process being run by private arbitration companies with suspiciously one-sided win rates for the business or employer. It is also associated with Supreme Court decisions that have read the Federal Arbitration Act in controversially broad ways, in the process making it very hard to challenge arbitration provisions in court on grounds of unconscionability, lack of consent, or related grounds. Arbitration was also recently in the news when the Republican Congress and the current President combined to overturn a Consumer Financial Protection Bureau rule that would have limited use of such provisions in financial documents. Why would anyone want to have that unpopular mess in family law? Continue reading "Arbitration and Procedural Pluralism in Family Law"