Jun 7, 2012 Cristie FordCorporate LawJotwell
What if it turned out that much of the crucial work that law does in the world operates in a register that is not captured by most legal scholarship? What makes legal reasoning and legal technique so resilient and so abidingly “legitimate,” even while other forms of expert knowledge, like those underpinning government fiscal policy, quantitative risk modeling, and the rational actor model unravel (as they did in the midst of the recent financial crisis)? How much of the work of building and maintaining global governance is accomplished under the radar, by the routinized practices of law – and to what extent can grand political ambition leverage these underappreciated tools in the service of its own ends? These are the challenging questions that Annelise Riles poses in this rich and elegantly-written book. For those not familiar with her argument, it merits serious attention.
The focus of Riles’s book is contracts for collateral. Riles spent years conducting field work and follow-up studies in the Japanese derivatives markets, tracking daily back office routines underlying collateral contracts. Riles argues that the legal construction of collateral is interesting for two reasons. The first is the curious fact that at the height of the recent financial crisis, when the great conceptual edifices of international finance shook, collateral – the very notion of it, its enforceability and its legitimacy – was never seriously questioned. In her words, “collateral seems to have survived the tectonic shifts in market ideologies of the last few years with its reputation intact when so much else of what once was unquestionable dogma – free markets, self-regulation, the innate brilliance and rationality of derivatives traders – now seems like a quaint mythology from a strange other world” (page 1). The book is partly devoted to trying to understand just what it is about collateral contracts that makes them so robust. She suggests, provocatively, that the wonder is not that the financial system broke down in fall 2008; the wonder is that it ever operated at all, across time zones, across differing institutional processes and national contexts, across technical glitches, and across the logistical complexities of global markets. The book is full of surprising and counterintuitive examples of the important role that legal technique plays in that system. Continue reading "A Radical Perspective on the Mundane"
Jun 4, 2012 Stewart SterkJotwellTrusts & Estates
Under what circumstances should courts permit a donor to undo what appears to be a completed gift – particularly when the gift is embedded in a real or imagined romantic relationship? After surveying existing law, Ruth Sarah Lee concludes that traditional doctrine does not adequately deter donees from subtly misleading donors into making generous gifts that the donor would never make if the donee had been honest about his or her intentions. Although the article’s focus is on a subspecies of lifetime gifts, its conclusions suggest possible application to testamentary gifts, and to how courts might approach doctrines of undue influence and tortious interference.
Although the conventional wisdom is that gifts are gestures of altruism, love, or kindness, that conventional wisdom does little to explain why a donor makes particular gifts. Much recent scholarship recognizes that gift-giving helps build relationships, in part by enhancing trust between donor and donee. Gifts, particularly gifts that require the donor to learn about the donee’s individual preferences, or gifts that are particularly expensive, perform an important signaling function: they indicate to the donee that the donor has an interest in a long-term relationship. As Ms. Lee points out, “[i]f the donor expected only a short-term relationship with the donee, he would not expect enough in return, in terms of affection or trust, for the gift to be worth its cost.” If gifts were freely revocable, they would lose that signaling advantage, because the donor would not be making the same sort of commitment to a relationship with the donee. Nevertheless, as Ms. Lee indicates, engagement gifts are routinely treated as revocable at the donor’s behest if the marriage does not occur. Courts invoke either the theory that the gift was conditioned on occurrence of the marriage, or that the theory that the gift was given only as consideration for the marriage. Continue reading "For Love or Money? Legal Treatment of Golddiggers"
Jun 4, 2012 JotwellJotwell
Jotwell moves to its summer publishing schedule this week. Reviews will post on Mondays and Thursdays during June, July, and August (with a short annual summer break at the end of August).
We’ll return to a more frequent publication schedule when the new academic year begins in September.
In the next few months we’ll also be adding three new sections: Family Law, Health Law, and Torts, with still more to follow in the future.
Jun 1, 2012 Shuyi OeiJotwellTax Law
Leigh Osofsky,
Getting Realistic about Responsive Tax Administration, 66
Tax L. Rev. __ (forthcoming 2012)
available at SSRN.
Leigh Osofsky’s paper, Getting Realistic about Responsive Tax Administration, studies an important feature of tax collections procedure, the IRS’s Compliance Assurance Process (CAP). CAP is a program—piloted in 2005 and extended to all large business taxpayers in 2011—by which the Service reviews the compliance of large business taxpayers prior to the filing of a tax return. The goal here is to resolve all tax positions before the return is filed, and to thereby move from a post-return filing audit system to a pre-filing cooperative conversation between taxpayer and Service. According to Osofsky, supporters tout several supposed benefits of CAP: it reduces IRS resource spending on large businesses, letting the IRS focus its energies on other areas; it helps taxpayers minimize uncertainty and hence compliance costs; it provides the Service with real-time data on compliance issues; it may encourage strong tax compliance norms; and it discourages impermissible tax planning by offering incentives for choosing compliance. Osofsky doesn’t think current empirical evidence is strong enough to allow us to rely on this story. She presents an alternative story: Increased resource wastage by taxpayers resulting from insufficient scrutiny and revenue losses to the government that offset IRS cost savings may mean that CAP is not as appealing as its supporters claim.
As an investigation of CAP, a little-known tax administration procedure for dealing with large business taxpayers, Getting Realistic is already an interesting and timely piece. However, the paper’s true uniqueness lies in its evaluation of CAP in the broader theoretical context of “responsive regulation” and “responsive tax administration” approaches. Responsive regulation is broadly used to denote approaches emphasizing a shift away from traditional, top-down regulation towards more participatory, bottom-up regulation. Osofsky describes its central tenets as including a notion that regulators should use persuasion to obtain compliance, an emphasis on procedural justice to encourage more compliance, and a notion that punishment should only be meted out only after cooperation hasn’t worked. In the tax administration context, the theory emphasizes the importance of understanding diverse taxpayer motivations and of trust building between taxpayers and Service, rather than traditional audit-style penalties. It also focuses on reciprocity and service as ways to increase compliance. Continue reading "Responsive Regulation and Large Business Tax Compliance"
May 30, 2012 Hendrik HartogJotwellLegal History
The November 2011 issue of the Law and History Review is devoted to an illuminating symposium on new directions in the study of slavery, edited by Rebecca Scott. The symposium includes an amazing article by Natalie Davis. Since this is a blog devoted to enthusiasms, indulge me as I indulge myself.
I am a historian today in large part because of Natalie Zemon Davis. Back 44 years ago, as an undergraduate at Carleton College, I had just decided that I would try to be a music major because I had decided, in my naiveté, that historians were boring people. And then I was talked into going to hear a visiting speaker — a Professor Davis from Toronto — who made sixteenth century strikes in Lyons sound so fascinating and who, unlike anyone I had heard to that point, took her audience into the process of thinking reflexively about history. I was hooked. I changed my major. Continue reading "Crime in Suriname"
May 28, 2012 Suzette M. MalveauxCourts LawJotwell
Charles A. Sullivan,
Plausibly Pleading Employment Discrimination, 52
Wm. & Mary L. Rev. 1613 (2011), available at
SSRNIn a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons. As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal? Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.
But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime? Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read. It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena. Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective. Continue reading "Plausibility Pleading and Employment Discrimination"
May 25, 2012 Heather FieldJotwellLegal Profession
Students are graduating from law school with unprecedented amounts of debt and are confronting an uncertain job market. Editorials in the New York Times condemn law schools for failing to teach lawyering. The 2007 Carnegie Report calls for law schools to increase skills and professionalism training so that law school graduates can be better prepared for practice. And the ABA is considering revisions to the law school accreditation standards that would increase the emphasis on what students learn, rather than on what we teach.
By now, we are all familiar with the many criticisms of legal education. Given this backdrop, I want to highlight a tax academic’s scholarship, not on tax law, but rather on the broader topic of legal education reform. Brad Borden, a prolific scholar in the field of partnership and real estate taxation, is the co-author (together with Robert Rhee) of The Law School Firm. The article suggests an alternate model for legal education that could better connect law schools with law practice. Continue reading "A Tax Scholar’s Take on Legal Education Reform"
May 23, 2012 Alex B. LongJotwellWork Law
Michael C. Duff,
New Nip in the Bud: Does the Obama Board’s Preemptive Strike Doctrine Enhance Tactical Employment Law Strategies?, (forthcoming Employee Rights and Employment Policy Journal), available at
SSRN.
I’m still fascinated by employment retaliation cases. Not so much traditional labor law. I’ve generally lost interest. But Michael C. Duff’s forthcoming essay on the possible implications of the National Labor Relations Board’s decision in Parexel International serves as a reminder to me (and others) that the NLRA might still have some role to play in addressing retaliation even in non-union workplaces.
Parexel involved an employee who claimed she was fired for complaining about what she believed was employer favoritism on the basis of nationality. Her complaint was internal, the workplace was non-union, and she had not yet mentioned her concerns about favoritism to her co-workers, let alone sought to rally their support. These facts take the case outside the range of the typical charge of interfering with the right to engage in concerted activities. Moreover, as Duff chronicles, existing Board precedent was only somewhat helpful to the employee’s claim that she had been fired for exercising her right to engage in protected concerted activity. Yet, the Board found the employer had violated by Section 8(a)(1) of the NLRA by seeking to prevent protected concerted activity. In other words, the employer violated the Act by trying to nip concerted activity in the bud. Continue reading "Using the NLRA to Nip Anticipatory Retaliation in the Bud"
May 21, 2012 William FunkAdministrative LawJotwell
The Social Security Administration’s administrative appeals system is touted as one of largest administrative judicial systems in the world. No one claims it is one of the best. Professor Richard Pierce, writing in the Cato Institute’s Regulation magazine, proclaims that it is seriously broken, and he has suggestions for how to fix it. One might say radical suggestions. Dubin and Rains, writing an Issue Brief for the American Constitution Society, take issue with Pierce, rebutting his assertions and defending the basic system as it is, warts and all. One might believe that publications of the Cato Institute and the American Constitution Society would be hopelessly biased, and of course they do represent different views of the American polity, but to read these two pieces, whatever your political inclinations, will inform you about one of the most important issues in administrative law – how to deal with a mass administrative justice system that seems to be running amok.
To establish that the system is broken, Pierce provides statistics on the increase in disability determinations, the total cost involved in paying for disabled workers, and the role that pain and other non-objective causes of disability play in the increase in disability findings. Pierce’s theme is that the use of administrative law judges and formal adjudication to re-decide what professionals determined on the basis of paper records is responsible for the breakdown, because their use is needlessly inefficient, results in non-uniform determinations, is skewed in favor of granting benefits, and is unconstitutional to boot. Why use formal hearing adjudication for what is basically a medical determination? Pierce suggests that the justification is to allow ALJs to assess the credibility of the claimants on the basis of their demeanor, but he then cites to an important law review article, Olin Wellborn, Demeanor, 76 Cornell L. Rev. 1075 (1991), that concludes that empirical evidence suggests that one cannot determine truthfulness (or falsity) on the basis of demeanor. Ipso Facto: we don’t need formal adjudications for disability determinations. The fact that there are wide disparities between ALJs in the outcomes of cases suggests that the hearings are not accurate determinations of the truth. Moreover, under the current system, the claimant, usually represented by counsel, appears before an ALJ who, according to judicial decisions, is supposed to aid the claimant in making his case, but there is no one to represent the “other side.” This hopelessly skews the system. Finally, Pierce argues from the recent case of Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S.Ct. 3138 (2010) that having ALJs decide these cases is unconstitutional because they can only be removed for cause by persons who also can only be removed for cause, violating the prohibition announced in that case on limiting the President’s ability to remove an officer by creating a double for-cause removal system. Although he provides several possible responses to the problem, his apparently preferred suggestion is simply to eliminate the ALJ review altogether, using the funds saved to review the continued eligibility of current beneficiaries. Continue reading "Dueling Visions of the Social Security Disability Adjudicatory System"
May 18, 2012 Shubha GhoshJotwellJurisprudence
Many readers are aware of the field of law and behavioral economics, which adopts insights from cognitive psychology to examine and critique prescriptions of rational choice theory for law and policy. For those seeking a wider understanding of the background, cognitive psychology scholarship has an excellent resource in Professor Mark Kelman’s new book. As its title suggests, the book synthesizes academic research on the use of heuristics in individual decision making. Here, I summarize the book, putting out tantalizing teasers to encourage you to read this important volume as well laying out some of its implications for jurisprudence and legal policy.
In addition to the book, I recommend the Stanford Law School symposium devoted to Professor Kelman’s book that you can watch on YouTube after a judicious search of “heuristics debate Stanford.” But it would be an error to take a short cut and not read the book as well. Continue reading "Rationalizing Heuristics"
