Jan 16, 2013 Adam RosenzweigTax Law
A quiet, but powerful, movement seems to be emerging in the field of international tax – the explicit recognition that development policy is integral to any analysis of international tax policy. Put differently, if the initial distribution of resources affects the return on resources, which itself affects the taxation of resources and thus the provision of public goods (which themselves feed back into the return on resources), distribution must be incorporated into the efficiency analysis of international taxation rather than thought of as a second, unrelated “fairness” step.
Mitchell Kane contributes to this evolution in his thoughtful new article, Bootstraps and Poverty Traps: Tax Treaties as Novel Tools for Development Finance, 29 Yale J. Reg. 255 (2012). In this article, Kane attempts to integrate development economics into the tax treaty calculation itself – the exact opposite of traditional tax treaty policy. Originally, the policy behind tax treaties was to lower tax barriers to cross-border trade – as barriers dropped, trade increased, making everyone better off. What this theory did not take into account, however, was that this only worked for countries between which trade would flow. That is, countries with roughly similar economies. But what about small, capital poor countries? What would they get in return for signing a tax treaty with a wealthy country? The emerging consensus is: nothing. So why would they ever sign a treaty with a wealthy country such as the United States? Continue reading "Integrating Tax and Development Policy"
Jan 14, 2013 Abigail MoncrieffHealth Law
Kenneth Abraham,
Four Conceptions of Insurance, ___ U. Pa. L. Rev. ___ (forthcoming 2013), available at
SSRN.
In the highly contentious debates over the Patient Protection and Affordable Care Act (ACA or “Obamacare”), different conceptions of health insurance vied for supremacy. But the struggle occurred silently. The debaters never explicitly acknowledged—and may not have completely understood—that the foundation of their disagreement might be their underlying sense of what health insurance is and ought to be. Ken Abraham has ably shone a light on this silent struggle in his recent article, Four Conceptions of Insurance.
Abraham lays out and critiques four views of insurance: as contract, public utility, product, and regulator. In the end, his conclusion is simple. All four visions have some explanatory power for the content of modern insurance law, which necessarily means that none of the four visions is fully descriptive of modern practice. Modern law sometimes treats insurance as contract, sometimes as public utility, sometimes as product, and sometimes as regulator. But one’s preferred conception of insurance has much to do with one’s preferences as to what the law should be. When law treats insurance as a contract, those who see insurance as akin to a public utility are quite unhappy. Continue reading "Obamacare and the Competing Conceptions of Insurance"
Jan 11, 2013 Kerry AbramsFamily Law
Every day, married couples make decisions about how to allocate work within their relationships. Some couples specialize, with one person performing a breadwinning role and the other doing the lion’s share of caregiving tasks. Others divide breadwinning and caregiving tasks fairly evenly, and still others perform the breadwinning role together while outsourcing caregiving to housekeepers, gardeners, and nannies. When spouses make a decision about how to allocate work, the decision often feels like a private choice. Feminist scholars have long argued that, to the contrary, choices regarding breadwinning and caregiving are largely shaped, or even coerced, by law.
Deborah Widiss’s article Changing the Marriage Equation provides a new way of analyzing the complicated interaction of law, social norms, and individual choice that leads to gendered roles in marriage. Widiss argues that choices regarding the allocation of paid and care work are profoundly shaped by three factors, which together make up what she calls the “the marriage equation.” Two of the factors of the marriage equation are legal—sex-based classifications within marriage law, and the substantive law of marriage. The third is social—the gender norms of marriage. The article argues that all three factors affect couples’ decisions about the allocation of labor. Widiss also argues that the first factor, sex-based classifications within marriage law, was largely dismantled during the equal protection revolution of the 1970s, but that the other two factors continue to work together to produce gendered outcomes in the allocation of work within marriages. She then suggests that same-sex marriage can provide a natural experiment for assessing the relative strength of substantive marriage law and gender roles within the marriage equation. Continue reading "Reconsidering Work and Family with “the Marriage Equation”"
Jan 9, 2013 Robert LeckeyEquality
Much legal scholarship about same-sex marriage by liberals presents arguments for judges to use when interpreting constitutional rights. Another current of critical research, from queer, feminist, or other left scholars, explores how expanding access to marriage may disadvantage those who will not or cannot marry, undermine an intersectional queer politics, or both. Much less writing has explored the impact, for gay men and lesbians who might marry or who have married, of the lobbying and litigation that made doing so possible.
Some reasons for this relative neglect are obvious. It may be too early to have meaningful data. The question may be one for sociologists. But surely another is that a lot of people assume that same-sex marriage is a good thing for at least those who take it up. Yuvraj Joshi’s paper joins the critical research about the potential harms arising from the campaign for same-sex marriage and its realization for those who wouldn’t walk down the aisle even if they could. But it also enriches legal scholarship by exploring the psychological effects of same-sex marriage for those who marry. Continue reading "Uncomfortable Marriage"
Jan 7, 2013 Suja A. ThomasCourts Law
The civil jury is in this year. In The Political Puzzle of the Civil Jury, Jason Solomon examines the role of the civil jury as a political institution—in other words, the role of the jury in democracy. Seeking to begin a discussion in the literature on whether the civil jury serves as a political institution, Solomon exhaustively and critically examines the justifications for the civil jury in this role. Solomon’s is one of several excellent recent articles on the civil jury; others include John Langbein’s The Disappearance of the Civil Jury, and Darrell Miller’s Historical Tests, (Mostly) Unbalanced Rights, and What the Seventh Amendment Can Teach Us About the Second.
Solomon begins with a provocative argument that some of the most important cases in the last four terms of the Supreme Court, including Snyder v. Phelps, Wyeth v. Levine, Exxon Shipping Co. v. Baker, and Wal-Mart Stores, Inc. v. Dukes, reflect a distrust of the civil jury and a concern that juries are deciding law-like questions. As a result, Solomon argues, we must continue to evaluate the jury. In doing this in the past, the focus has been on whether the jury has the ability to decide cases effectively. The ready response here has been that the ability of juries to decide cases matches that of judges. In addition to an adjudicative role, however, some scholars argue that the jury serves as a political institution. Solomon argues that this justification should be fully assessed, and the competencies of juries to judges should be compared. Continue reading "Considering the Civil Jury"
Dec 24, 2012 JotwellJotwell
Jotwell is taking a short winter break. Posting will resume Monday, January 7, 2013.
Happy Holidays! Thank you for reading, and for your support.
Dec 19, 2012 Martin H. MalinWork Law
W. Mark C. Weidemaier,
Judging Lite: How Arbitrators Use and Create Precedent, 90 N. C. L. Rev. 1091 (2012), available at
SSRN.
Ever since the Supreme Court, in Gilmer v. Interstate Johnson/Lane Corp., 500 U.S. 20 (1991), and Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), gave employers the green light to require their employees as a condition of employment to waive their right to sue for violations of employment statutes and to mandate arbitration of any claims that may arise, debate has flared over whether such employer-imposed arbitration mandates should be prohibited, allowed or regulated. The debate intensified after the Supreme Court’s decision in 14 Penn Plaza, LLC v. Pyett, 556 U.S. 247 (2009), held that unions may waive employees’ rights to sue and require that they pursue their statutory claims through the collective bargaining agreement’s grievance and arbitration procedure. The criticisms include the concern that widespread arbitration mandates will lead to a privatization of public law, with arbitrators that are not bound by public law authorities producing awards of no precedential value.
W. Mark C. Weidemaier’s article, Judging Lite: How Arbitrators Use and Create Precedent, provides empirical insight into the concerns regarding the privatization of public law. Weidemaier worked from a database of 206 class action arbitrations, every class action award available through the American Arbitration Association (AAA) between 2003-2009; 203 randomly selected securities arbitration awards issued between 1995-2009 available through FINRA and its predecessors; 231 AAA employment arbitration awards randomly selected between 1999-2008, available on Lexis; and 208 labor arbitration awards rendered between 1980-2009, randomly selected from among awards published in the BNA Labor Arbitration Reports. He analyzed these awards to gauge the extent to which arbitrators cited and engaged with precedent. Continue reading "Is Arbitration Lawless?"
Dec 17, 2012 Richard MurphyAdministrative Law
Richard H. Pildes & Samuel Issacharoff,
Targeted Warfare: Individuating Enemy Responsibility, New York University School of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 12-40,
available at SSRN. President Obama is a Nobel Peace Prize winner. He also orders missile strikes from drones against targeted individuals in Pakistan, Yemen, and Somalia. According to some vocal critics, such extra-judicial killing makes President Obama a murderer.
This conclusion rests in large part on the premise that the United States is not, properly speaking, in an armed conflict with al Qaeda, the Taliban, and associated forces. As such, the laws and norms of international human rights law (IHRL) and civil law enforcement should apply. Absent exigent circumstances, this legal regime expects judicial authorization of the use of lethal force. President Obama is not a judge, so, when he authorizes a killing, he commits murder. The picture looks different if we concede that the laws of armed conflict (LOAC) apply to the drone strikes. This legal regime requires an attacker to take feasible precautions to ensure that a target is legitimate but does not require judicial authorization for attacks. Continue reading "An Evolving Administrative Law of Targeted Warfare (and the Power of Londoner/BiMetallic)"
Dec 12, 2012 James GrimmelmannJotwellTechnology Law
Legal academics who write about norms risk becoming armchair anthropologists. But the armchair is precisely the place anthropologists avoid; good ethnography cannot be done alone. As one of my college professors said, “The specific antidote to bullshit is field work.”
E. Gabriella Coleman has spent much of her career doing field work with a computer. Her first monograph, Coding Freedom: The Ethics and Aesthetics of Hacking, is based on an extended study of free software programmers. She lurked on their email lists, hung out in their IRC chat rooms, went to their conferences (she even helped organize one herself), and spent countless hours simply talking with them about their work. The result is a fascinating study of a community substantially defined by its tense engagement with law. (More recently, she has been closely observing the anarchic carnival-esque collective paradoxically known as Anonymous, with equally fascinating results. Continue reading "If Code Is Law, Then Coders Are Lawyers"
Dec 12, 2012 Saule T. OmarovaCorporate LawJotwell
Robert Hockett,
It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery, 18
Stan. J. L. Bus. & Fin. (forthcoming 2012) available at
SSRN.
It is quite rare to come across a law review article that offers not only a theoretical diagnosis of a major socio-economic problem but also a plan for solving that problem in practice. Putting forward a real, well-reasoned, and detailed policy proposal is always an act of scholarly courage, which inevitably exposes the author to all kinds of criticism. This is especially true where the proposal targets a complex issue in which stakes are high, arguments are heavily ideology-driven, and powerful special interests dominate the agenda. Robert Hockett’s recent essay takes on precisely such a controversial issue: the nation’s continuing problem with underwater mortgages. Since it was posted on SSRN several months ago, this essay has been making serious waves in policy-making circles (and earning its author no love from Wall Street).
Hockett starts with an incisive diagnosis of the root causes and structural dynamics of the mortgage crisis plaguing the nation since 2007. Five years after the bursting of the latest real estate bubble, mortgage debt overhang continues to be one of the primary factors impeding broad economic recovery in the U.S. and, consequently, globally. As Hockett argues, underwater mortgages – or loans on which the homeowner owes more than the current market value of the house – function as the principal drag on the U.S. housing market and the entire economy. Homeowners whose mortgages are underwater default at accelerating rates, leading to mass foreclosure, property degradation, and consequent asset devaluation. Moreover, such homeowners also don’t spend their money on purchases of goods, which depresses the consumer demand that is so vital to a robust economic recovery. According to Hockett, as of the beginning of this year, nearly a quarter of all mortgages in the U.S. were underwater, with an even higher concentration of underwater loans in certain especially hard-hit counties and cities. In effect, these are the loans that, while not technically in default, teeter on the edge of the abyss – and the more of them fall, the wider that abyss gets. Hockett argues that the only practical long-term solution to this problem is to write down the principal on underwater mortgages to post-bust market value levels. That would effectively force the necessary adjustment in asset values and erase the crippling legacy of the pre-2007 real estate bubble. Continue reading "An Unexpected Remedy: Eminent Domain as a Potential Solution to the Mortgage Crisis"
