Nov 7, 2012 Leigh OsofskyTax Law
As Lilian Faulhaber describes in her article, The Hidden Limits of the Charitable Deduction: An Introduction to Hypersalience, salience recently has become a hot topic in tax scholarship. This increasing focus on salience arises out of the behavioral economics school. No longer are taxpayers assumed to be rationally maximizing their utility in the manner that economic models might predict. Rather, behavioral economics suggests that they often rely on mental shortcuts, or heuristics, to make decisions. As a result, scholars have suggested and, to some extent, documented how the salience, or prominence, of a tax provision may determine taxpayer responsiveness to the provision. Scholars have identified two types of salience: market salience (the impact of salience on market, or economic, activity) and political salience (the impact of salience on political outcomes). Faulhaber’s article addresses the scholarship regarding market salience. As Faulhaber describes, the primary focus of such scholarship has been on whether and how low salience taxes (sometimes referred to as “hidden taxes”) may cause taxpayers to underestimate the true cost of taxation and thereby potentially reduce behavioral distortions from taxation, which many view as the Holy Grail of tax policy.
However, Faulhaber astutely notes that this perspective regarding salience is only one side of the “hidden tax coin.” Faulhaber explains that low salience tax provisions only cause taxpayers to underestimate the true cost of taxation when the tax provisions are revenue-raising provisions. Since scholars have not focused on revenue-reducing tax provisions, they have not focused to any great extent on the phenomenon that Faulhaber introduces in this article: hypersalience. Hypersalience, as Faulhaber defines it, is “the phenomenon by which the prominence of a tax provision leads taxpayers to overestimate its incidence.” Hypersalience exists when there is a highly salient tax-reduction provision, combined with low salience restrictions or limitations on the tax-reduction provision. Faulhaber’s introduction of hypersalience into the tax literature is important for a number of reasons. First, Faulhaber’s discussion adds an important new dimension to the increasingly prominent salience scholarship. Second, Faulhaber’s focus on hypersalience allows her to delve into a number of resulting, pressing policy issues, which have not previously been examined. Finally, Faulhaber’s general discovery of hypersalience illustrates a basic but fundamentally important lesson: Behavioral economics phenomena do not operate in a vacuum. Rather, how they affect taxpayers depends on how they actually interact with particular tax provisions and with the administration of such provisions. Continue reading "Hypersalience and Why Understanding Behavioral Tax Law and Economics Means Understanding Tax"
Nov 6, 2012 Ian KerrTechnology Law
When I first encountered Nora Young’s new book —The Virtual Self—I thought, omg, another book about that?! Don’t get me wrong; earlier this year I devoured Julie Cohen’s Configuring the Networked Self just as quickly as I did Daniel Solove’s The Digital Person back when it first came out.
But if I include an exciting new edited volume by Cynthia Carter Ching and Brian Foley released earlier this year, then by my count there are more than a dozen books in the last couple of years about constructing the self in the digital world. Continue reading "Auto-Reportage and the Enlightened User"
Nov 5, 2012 Gregory KeatingTorts
In Mistakes, Misunderstandings and Misalignments, Jules Coleman joins the debate precipitated by Ariel Porat’s Misalignments in Tort Law and carried on by Mark Geistfeld in The Principle of Misalignment: Duty, Damages and the Nature of Tort Liability, and by Israel Gilead and Michael D. Green in Maligned Misalignments. Coleman’s contribution to the debate is important both in its own right and because the larger debate in which it figures represents the state of play with respect to important issues in tort theory. That debate throws into relief the issues that now divide wrongs-oriented and efficiency-oriented theories of tort. The debate also flushes out the lurking significance of “harm” as perhaps the most understudied concept in tort law.
Professor Porat’s originating contribution identifies five misalignments in negligence law—circumstances where the risks accounted for in setting the standard of care differ from the risks for which liability is imposed and damages are awarded at the conclusion of a successful negligence suit. Alignment requires that the same risks be taken into account and the same valuations used by courts in setting the standard of care and in imposing liability and damages. Misalignments are a sign that the law may be structured in a way which leads potential injurers to make inappropriate investments in accident prevention. Professor Porat’s fine paper prompted three diverse rejoinders. Professors Gilead and Green rejoined that the misalignments may be ways in which the law of torts takes approximate account of negative externalities. Continue reading "The (Mis)alignment Debate"
Nov 2, 2012 Katharine BarlettFamily Law
Camille Gear Rich,
Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law,
101 Calif. L. Rev. (forthcoming 2013), available at
SSRN.
How committed are feminists to gender equality? In Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (to be published this spring in the California Law Review), Camille Gear Rich identifies an issue as to which feminists have seemed almost willfully blind: gender bias in child molestation prosecutions.
The problem is this: men are prosecuted under child molestation laws for engaging in the same behaviors that mothers perform without fear of criminal sanction. As examples, Rich describes cases in which men have been prosecuted for bathing a child’s genitals by hand rather than with a washcloth, wiping a child’s bottom after toileting, applying diaper cream to a child’s genitals, bathing with a child, and kissing a child’s naked stomach, thighs, and genitals. These examples are revealing. We would not expect mothers to be under suspicion of child abuse for these kinds of behaviors; we are not terribly surprised that men are. Why, Rich asks, haven’t feminists found this troubling? Continue reading "Suspicious Eyes: The Uneasy Relationship Between Feminism, Male Parenting, and Child Molestation Laws"
Oct 31, 2012 Karen TaniJotwellLegal History
Molly Michelmore’s new book could not be more timely. This summer the Supreme Court upheld the Affordable Care Act’s controversial individual mandate provision, through a majority opinion that links healthcare directly to the federal government’s tax power. Meanwhile, the lead-up to the presidential election has been riddled with references to tax burdens (and evasions), social welfare spending, and government “dependency.”
Historians and social scientists have much to add to this conversation, but little faith that they will be heard. A recurring theme in post-World War Two U.S. political history is how greatly the government has assisted working- and middle-class Americans (especially white men and their families) and how rarely those Americans have acknowledged that fact. This paradox persists today. Most Americans will rely at some point on a means-tested government support program, such as food stamps or Temporary Aid to Needy Families. Many more will accept Social Security benefits, tax credits, and other government subsidies. Yet these same Americans often resent the “welfare state.” In Michelmore’s words, “Americans hate government, but demand and expect, almost as a matter of right, the privileges, security, and mobility that government offers.” (p. 2-3) Continue reading "Not My Welfare State, or the Taxpayer’s Lament"
Oct 30, 2012 Richard MoorheadLegal Profession
Chris Hanretty,
Political Preferment in English Judicial Appointments, 1880-2005 (2012), APSA 2012 Annual Meeting Paper,
available at SSRN.
We Brits like to point to our judiciary as emblematic of the superiority of our common law system. Meritocratic neutrality is one of the signal claims made by both the judiciary and the Bar. A lot of academic ink has been spilt deconstructing that particular claim, but it was nevertheless a delight to stumble across Chris Hanretty’s paper Political Preferment in English Judicial Appointments, 1880–2005. It’s a delight for a number of reasons. Firstly, Dr. Hanretty is a political scientist, and political scientists are mysteriously rare students of UK legal systems, even in the UK. Secondly, it’s based on a sophisticated quantitative analysis. Thirdly, it is well written: a delicious yet concise historical analysis of judicial appointment to the Court of Appeal. Fourthly, there’s even a bit of polite methodological argy-bargy (at p.12) for the quants guys (and it nearly always is guys) who love that stuff. But finally, it evidences several important points about the significance of politics, elites and judges.
The study looks at the promotion of judges, largely from the High Court bench (which is the first instance court of highest status) to the Court of Appeal and to what was then the House of Lords (now the Supreme Court). It tests a number of hypotheses about this promotion process to discover whether promotion appears to be related to social standing; education; early appointment as a “rising star”; whether the judge is, for instance, a family (low status) or commercial (high status) judge; overt party political affiliation (historically significant in most narratives); and whether “candidates who were previously appointed [to their initial judicial office] by the governing party are more likely to be promoted.” Continue reading "A Quantitative History of Judicial Elites"
Oct 29, 2012 Toni WilliamsEquality
Daniel M. Brinks & Varun Gauri,
Law’s Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights, World Bank Development Research Group Working Paper 5999 (March 2012), available at
SSRN.
This working paper makes a thought-provoking contribution to debates about the value of litigating rights to advance social change. It asks whether litigating the socio-economic rights that have been incorporated into many of the constitutions drafted during the past 50 years or so has what the authors term “pro-poor” effects. And, to the extent that such effects occur, what political, economic, social and legal factors and institutions might account for them? In response to these questions the authors offer a comparative analysis and reworking of data from five case studies of socio-economic rights litigation reported in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, a book edited by the same authors and published in 2008.
All five research sites are large so-called emerging economies with constitutions that recognise socio-economic rights, some more explicitly than others. The case studies of socio-economic rights litigation in India, Nigeria, Indonesia, Brazil and South Africa that are discussed in the 2008 book provide extensive details of reported cases in the fields of health care and education in each country and the authors estimate the direct and indirect effects of the cases on each country’s population and public policy. This paper revisits the data, incorporating it into a small sample comparative study across the five jurisdictions; a study that makes intriguing, if cautious, claims about the capacity of some courts to decide some socio-economic rights claims in ways that are beneficial to some of the poor. Continue reading "Getting Rights Right"
Oct 26, 2012 Steve VladeckCourts LawJotwell
In 1973, the Supreme Court in Palmore v. United States upheld Congress’s creation of an “Article I” court in the District of Columbia—the D.C. Superior Court—against a claim that Congress lacked the power to invest non-Article III federal courts with the authority to entertain criminal prosecutions arising under federal law. One of the linchpins of Justice White’s analysis for the 8-1 majority was his observation that, “Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III.” As White explained, if it did not violate Article III for Congress to allow state judges to entertain federal criminal prosecutions, then it would be far harder to understand why, in at least some circumstances, non-Article III federal criminal adjudication—especially in a tribunal acting as a quasi-state court— should not also be permissible.
And yet, as Michael G. Collins and Jonathan Remy Nash persuasively demonstrate in Prosecuting Federal Crimes in State Courts, the historical record to which Justice White alluded in Palmore is “sketchy at best.” Instead, Collins and Nash’s article offers a compelling mix of historical, legal, and policy-oriented explanations for why the scattershot exceptions from the earliest years of the Republic may in fact prove the rule—that state courts generally do not (and should not) have the power to entertain criminal prosecutions arising under federal law. And whereas Collins and Nash’s article comes in response to a series of recent proposals to expand the federal criminal jurisdiction of state courts, the true significance of their analysis may be the extent to which it deprives Palmore (and, as such, federal criminal adjudication in non-Article III federal territorial courts in general) of perhaps its strongest analytical underpinning. Continue reading "Federal Crimes, State Courts, and Palmore"
Oct 24, 2012 Mark Kende & Matthew ShimanovskyConstitutional LawJotwell
Chief Justice John Roberts, Jr. made headlines during his confirmation hearings by comparing judges to baseball umpires. Now imagine that umpires had the ability to secretly obtain expert and other opinions about whether a pitch is a ball or strike. That is the question raised by Allison Orr Larson’s important new article, Confronting Supreme Court Fact Finding. Larson’s article shows how U.S. Supreme Court justices are actually doing more of their own fact-finding, rather than just acting as the nation’s highest appellate court of law. Following Kenneth Culp Davis, she calls these findings “legislative facts,” to contrast them with “adjudicative facts.” The article usefully explores the causes and consequences of this significant development.
Larson shows that some justices have used “in house” fact finding, beyond the crucible of the adversary process and cross examination, in 90 of 120 of the most important cases decided in the last 15 years. Of those 90 cases, 47% cite to 4 or more sources outside of the briefs. Larson says that the Internet has been instrumental in permitting such fact finding. The Internet allows each justice to bolster an opinion, counter a scathing dissent, or justify overturning previous case law. Continue reading "The U.S. Supreme Court As Fact Finder?"
Oct 23, 2012 Neil H. BuchananTax Law
When former Massachusetts Governor Mitt Romney chose Paul Ryan to be his running mate in the 2012 United States Presidential election, he guaranteed that Medicare would become a central battleground of the campaign. Ryan, a veteran Congressman from Wisconsin, is widely known for his efforts to turn the federal Medicare program into a voucher program (with the value of the vouchers deliberately calibrated not to keep up with health care costs over time), a transformation that would change everything about Medicare except its name.
Ryan’s proposal is sufficiently controversial that the Romney/Ryan camp has gone to significant lengths to distance itself from it – refusing to use the word “vouchers,” for example, which they evidently believe is toxic politically. At the same time, the Republican team’s strategists have made a point of highlighting the decreases in Medicare spending that have been projected as a result of various cost-saving measures in the Patient Protection and Affordable Care Act, calling those measures “cuts in Medicare” for which President Obama should be blamed. Both parties apparently believe that there is such strong support among likely voters to preserve Medicare that they must try to convince voters that the other candidate is going to gut the program, even though only the Republican side has ever proposed actually doing so. Continue reading "Does Anyone Really Understand Medicare? Richard Kaplan Does, and You Can, Too"
