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David J. Barron and Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265 (2013).
In July, 2012, the Obama administration invited states, which administer the Temporary Assistance for Needy Families (TANF) program, to apply for waivers from some federal requirements for that program. The states would have to have alternative programs in place for increasing employment among the poor. In short order, the presidential campaign of Republican candidate Mitt Romney charged the President with gutting federal law. Campaign commercials alleged that Obama was illegally ending the work requirements that had been a centerpiece of federal welfare reform in the 1990s.
Although the commercials had little political impact, they did bring to public attention a little-noticed feature of a surprising number of federal statutes – a feature that Professors David Barron and Todd D. Rakoff call “big waiver.” In their superb paper, “In Defense of Big Waiver,” they analyze a fascinating phenomenon. Congress sometimes will enact “a fully reticulated, legislatively defined regulatory framework” that contains within it a delegation of “broad, discretionary power to determine whether the rule or rules that Congress has established should be dispensed with.” Continue reading "“Big Waiver” as a Constructive New Tool of the Administrative State"
• Zev J. Eigen & David Sherwyn, A Moral/Contractual Approach to Labor Law Reform, 63 Hastings L.J. 695 (2012).
• Brishen Rogers, Passion and Reason in Labor Law, 47 Harv. Civ. Rts.-Civ. Lib. L. Rev. 313 (2012).
The existential dilemma of modern labor law has been the shrinking numbers of employees who vote for union representation. Last year unions represented only 11.3 percent of U.S. employees—just 6.6 percent in the private sector. Labor law scholars have long attempted to account for the trend; indeed, rumors about the death of labor law have been around for at least twenty years. One might think that the academic ground concerning the decision to join or not join a union would be well-plowed—so plowed over, in fact, that the land would no longer be fertile. But two recent articles not only belie this claim, they also show the continuing importance of the representation decision to our conceptions of workplace justice.
In A Moral/Contractual Approach to Labor Law Reform, Eigen and Sherwyn seek to find middle ground between the union-side story and the management-side story as to those declining percentages. They reject the notion that a fairer labor law system would be one in which unions enjoyed higher success rates. Instead, they argue that representation elections should be fair, and they define a fair system as one that “will result in employees believing they had enough information to make an informed decision, that they were respected, and that they were not intimidated, threatened, or coerced.” (p. 712) Although they acknowledge the well-regarded labor law critique by Paul Weiler and others that workers are insufficiently protected against coercive employer tactics during the representation campaign, they also contend that unions have “failed to adapt with the times.” (p. 719) According to Eigen and Sherwyn, under the current system workers are trapped in tug of war in which both unions and employers can lie, manipulate, and coerce their way to victory. Card check neutrality agreements, in their view, make matters even worse: since the union must collude with the employer to put such an agreement into effect, they argue that such agreements constitute improper employer support to the union in violation of NLRA § 8(a)(2).1 Instead of shortening or eliminating the representation campaign, Eigen and Sherwyn argue that labor organizations and employers should agree to the “Principles for Ethical Conduct During Union Representation Campaigns” as set forth by the Institute for Employee Choice. The Principles require truthfulness; prohibit discharges, threats, and bribes; and call for equal time and access for both sides. Eigen and Sherwyn acknowledge some question about how the Principles should be enforced; they reject codifying them as regulatory requirements, but are equivocal between providing legal incentives for compliance and just simply leaving them as a contractual option. Here, Eigen and Sherwyn rely on past research (including this paper by Eigen) to argue that making the Principles mandatory will undercut the moral norms that might render them more effective in the workplace than legal sanctions. Ultimately, they hope that joint agreement to the Principles will make all parties, but particularly employees, better off as a result. Continue reading "Choose or Lose"
Joanna Shepherd, Justice in Crisis: Victim Access to the American Medical Liability System, Emory Legal Studies Research Paper 12-222 (2012) available at SSRN.
When we think about access to justice, we don’t tend to think about personal injury victims. Indeed, I recently completed a review of legal needs surveys from seventeen states, conducted between 2007 and 2012. Attempting to measure the citizenry’s “level of access to the civil justice system,” the surveys generally asked about all manner of legal issues: consumer problems, housing problems, health problems, employment problems, family problems, and problems obtaining public benefits. Yet out of these seventeen studies, only four inquired about accidents.
Why this omission? It’s not that accidental injuries are too rare to merit inclusion. To the contrary, Deborah Hensler’s classic work, Compensation for Accidental Injuries in the United States, shows that accidents happen with unnerving frequency. Roughly one in six Americans sustains an accidental injury that results in measureable economic loss each year, and some accidents are serious. One-third of accident victims’ injuries impose “significant costs on them and on society.” Likewise, Barbara Curran’s groundbreaking 1977 study, The Legal Needs of the Public, found that “tort problems” (including those involving property damage) were more common than problems involving marital issues, job discrimination, wage collection, landlord-tenant disputes, and other consumer problems, combined. Continue reading "Bridging the Gap in the Justice Gap Literature"
Kristin Hickman, Unpacking the Force of Law, 66 Vand. L. Rev. 465 (2013).
With the Supreme Court’s recent decision in Mayo Foundation for Education and Research v. United States, there is a huge void of scholarship regarding how administrative law principles apply in the tax context. Kristin Hickman helps fill that void by continuing her work at the intersection of administrative law and tax procedure in her recent Vanderbilt Law Review article “Unpacking the Force of Law,” which deals with the treatment of temporary treasury regulations and IRB guidance after the Supreme Court’s decisions in Mayo and United States v. Mead Corp.
In Mead and Mayo, the Court clarified that agency regulations received Chevron deference if they were based on either specific grants of rulemaking authority contained in a statute or on general rulemaking authority granted by Congress to a specific agency. Mead explained that an agency’s regulation was entitled to Chevron deference as long as “Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” In addition, in Mayo, the Supreme Court rejected the idea of tax exceptionalism stating “[w]e are not inclined to carve out an approach to administrative review good for tax law only.” Continue reading "Temporary Treasury Regulations and IRB Guidance in a Post-Mead and Mayo World"
• Margaret H. Lemos, Aggregate Litigation Goes Public: Representative Suits by State Attorneys General, 126 Harv. L. Rev. 486 (2012).
• Deborah R. Hensler, Goldilocks and the Class Action, 126 Harv. L. Rev. F. 56 (2012).
Maggie Lemos’s valuable article tackles one of the hot issues in aggregate litigation: a government (typically acting through its attorney general) using parens patriae suits to vindicate the rights of its citizens. As I described in my last Jotwell post, access to justice in a mass society is the central civil-justice issue of our day. Individual litigation of mass-injury claims is a luxury that neither litigants nor the court system can typically afford. Class actions are shriveling as a realistic alternative in many instances. Non-class aggregate litigation is infected with its own problems, as the ALI’s recent Principles of the Law of Aggregation shows. And contracts of adhesion increasingly shunt victims into individual arbitration processes that provide little realistic opportunity for relief — and no opportunity for judicial resolution.
Into this harsh landscape enters the parens patriae action, which has emerged as the newest academic darling with the potential to provide victims of mass injury a measure of justice. In these actions, the attorney general sues on behalf of those citizens allegedly injured by the defendants’ conduct. Such a suit ensures a measure of deterrence. If the recovery occurs and the attorney general establishes a fund against which injured citizens can claim, the suit also results in a modicum of compensation. Because the suits are controlled by a public official, they also (in theory) come closer to achieving the optimal level of regulatory response, while avoiding the large fees, blackmail settlements, and other agency costs that so often give class-action and other aggregate litigation a bad name. Continue reading "Adequacy and the Attorney General"
Angus Burgin, The Great Persuasion: Reinventing Free Markets since the Great Depression (Harvard University Press, 2012)
In The Great Persuasion: Reinventing Free Markets since the Great Depression, Angus Burgin, a historian at Johns Hopkins, offers the fascinating story of a trans-Atlantic group of intellectuals who, beginning in the 1930s, came together in an effort to articulate and promote an alternative vision to the then-dominant ideas of Keynesian economics. In this short essay, I describe Burgin’s impressive contribution to the intellectual history of modern conservatism, and then offer some concluding thoughts on neoliberalism as a constitutional value today.
The basic story of the resurgence of conservatism, including free market ideology, in the second half of the twentieth century is well known. What this fine book adds is a sensitive and nuanced portrait of those thinkers—economists, mostly, but not exclusively—who, through several generations of struggle, among themselves and with their antagonists, shaped the ideas of what has come to be known as neoliberalism. Burgin’s overriding argument is that these people made possible the eventual triumphs of free market ideas in the public sphere. Although often articulated in abstract and technical terms, these were ideas that would have a profound impact on American life and politics. Continue reading "The Global Community of Ideas that Created Neoliberalism"
Renee Newman Knake, Democratizing Legal Education, 45 Conn. L. Rev. (forthcoming, May 2013), available at SSRN.
What are the public duties of law schools? Specifically, what duty, if any, do law schools have to educate people outside of the profession, such as clients, would-be clients, and ordinary citizens and consumers? Do law schools have a duty to promote public access to legal information and services?
Most of the recent call for U.S. legal education reform has focused on the interests of lawyers and problems of access to the profession, such as rising law school tuition, the contraction of the legal job market, and law schools’ duty to provide prospective lawyers with accurate job market data. Such concerns about “the economics of legal education” for lawyers are the subject of a recent letter from a coalition of legal academics to the ABA Task Force on the Future of Legal Education. Continue reading "Law for All? The First Thing We Do, Let’s Educate the Non-Lawyers"
Matt Adler, Well Being and Fair Distribution: Beyond Cost-Benefit Analysis (Oxford University Press, 2012).
Matt Adler’s book Well Being and Fair Distribution is first an articulation and then a defense of a particular social welfare function with which analysts and critics, whether from academia or elsewhere, can morally assess various large scale governmental regulatory or legislative decisions, such as the decision to use public moneys to build a dam or a highway, or to discontinue funding of the Violence Against Women Act, or to re-authorize No Child Left Behind, or to regulate carbon emissions in some way, or to continue the use of drones in warfare, or to close Guantanamo Bay, or to shrink or expand the role of the federal government in the War on Drugs. The means of moral evaluation of these large governmental decisions for which Matt argues is consequentialist — it is the outcomes of choices that determine the morality of those choices, rather than any other attribute of the actions or any constellation of motives of the actors that do so –– and, second, welfarist — it evaluates those decisions by reference to their propensity to increase or diminish human wellbeing –- and, third, prioritarian – meaning that it gives priority, or greater weight, to increases in the wellbeing of the less well off, when comparing the relative moral virtues of possible policy changes. So, one policy choice is morally better than another if it increases the wellbeing of those who are affected, as measured by the utility of their alternative life histories, and as ascertained by the other-regarding ideal preferences of a sympathetic spectator, with the wellbeing of the increase to the less well off given additional weight. Thus, the title of the book: this is a defense of a consequentialist mode of evaluating decision making that centers human wellbeing and fair distribution both.
Obviously for those of us who have spent time with it, Matt’s book stands as a monumental achievement; it is philosophically and economically sophisticated, and exhibits a mastery of multiple literatures, from the analytic-philosophical work of the last three decades on identity, equality, and wellbeing, as well as a sizeable normative economic literature spanning three quarters of a century on social welfare functions and their various competitors, most significantly of course cost-benefit analysis. It is also, though, monumentally important, given the current state of normative jurisprudence, and for three reasons not made obvious by the book itself: the first, internal to utilitarian jurisprudence, the second, on debates between utilitarian and deontological theories of legal evaluation, and third, in legal scholarship more generally. I want to spell those out and then I will then raise some questions and objections about its methodology. Continue reading "Justice and Utility"
Deven R. Desai, From Trademarks to Brands, 64 Fla. L. Rev. 981 (2012), available at SSRN.
As Stacey Dogan noted in her recent review of Bob Bone’s Taking the Confusion Out of “Likelihood of Confusion”: Toward a More Sensible Approach to Trademark Infringement, trademark law is at a bit of a crossroads. Scholars increasingly question basic tenets of trademark law and seek explanations for our blinkered theories of trademarks. Among recent attempts at comprehensive trademark law frameworks, some are good, some great, some … not.
The most insightful and satisfying of these is Deven Desai’s From Trademarks to Brands, which continues a line of research Desai started with Spencer Waller several years ago. From Trademarks to Brands mines the “brand theory” marketing literature for wisdom about the continuous expansion of trademark law. He struck a vein. Desai begins by disaggregating three views of brand value in the literature: (1) the corporate view, in which the firm owns and controls the brand, with consumers passively receiving brand information; (2) the noncorporate view, in which consumers and communities construct brand value; and (3) a synthesized view, in which all these stakeholders co-create brand value by using the brand as an information resource. Continue reading "Of Trademarks and Brands"
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