Dec 5, 2024 Leigh OsofskyTax Law
Daniel Shaviro,
Ten Observations about Income Inequality (June 20, 2024), available at
SSRN.
With the United States’s electoral season in high-swing, income inequality is sure to be a hot topic not only in academic circles, but also on the political stage. In his recent article, Ten Observations About Income Inequality, Dan Shaviro uses his trademark incisive style to pack some important insights into a quick read. For those who have thought a lot about income inequality, as well as for those who haven’t, it’s definitely worth taking a look at Shaviro’s new draft article.
Observers of the recent, important discussions regarding income inequality know that there is an empirical debate about how much income inequality in the United States has changed in recent decades. Thomas Piketty, Emmanuel Saez, and Gabriel Zucman have famously used U.S. tax returns to identify great increases in income inequality in recent decades, resulting in a concentration of income in the top 1%. However, recent work by Gerald Auten and David Splinter (which was later disputed by, among others, Piketty, Saez, and Zucman) argues that high-end income inequality is actually lower than we previously thought, and that government transfers and tax progressivity have yielded real rises in income for all income groups. Continue reading "What Do We Mean When We Talk About Income Inequality?"
Dec 4, 2024 Ezra YoungEquality
Sherry F. Colb & Michael C. Dorf,
Mandating Nature’s Course, 109
Cornell L. Rev. 101 (forthcoming 2024), available at
SSRN (Sept. 14, 2023).
In the October 2024 Term, the U.S. Supreme Court is poised to decide Skrmetti v. United States. At issue is whether trans healthcare bans which civilly prohibit and criminally punish provision of care, like Tennessee’s SB1, violate the Equal Protection Clause of the Fourteenth Amendment. Oral argument will be held today, December 4, 2024.
Shery Colb and Michael Dorf’s article, Mandating Nature’s Course, forthcoming in the Cornell Law Review, is a must read for anyone following Skrmetti as well as those more broadly interested in constitutional limits over government health power.
The genius of Colb and Dorf’s article is its observation that defenders of laws which severely restrict personal liberties recast these incursions as simply prohibiting interference with nature taking its course (NTIC) (P. 109). So construed, bans on abortion, trans healthcare, and euthanasia are cast as merely prohibiting wrongful acts against nature’s will. So conceptualized, NTIC arguments effectively mask that these laws impose affirmative obligations upon individuals. Continue reading "What’s Nature Got to Do With State Power"
Dec 3, 2024 Shelby D. GreenProperty
In Churching NIMBYs: Creating Affordable Housing on Church Property, Professor Patrick E. Reidy, describes how churches around the nation are seeking “theologically and morally sound uses for their underutilized property,” in particular, by building affordable housing to meet the material needs of the un- or poorly-housed.
Religious institutions are huge urban landowners. For instance, across Cook County, Illinois (home of Chicago), the Roman Catholic Archdiocese owns a staggering 5,500 acres; 880 within the city. Two-thirds of these acres are situated in areas zoned exclusively for single-family homes. Historically, the church was not in the business of constructing housing or using its property to provide permanent housing. Consequently, much of this land is used as places for people to park their cars. Continue reading "Adapting Religious Property for Affordable Housing: Making the Case for Exceptions to Local Land Use Laws"
Dec 2, 2024 Eric BiberLexEnvironmental Law
- Heather Payne, Reliance and Reliability, UC Irvine L. Rev. (forthcoming), available at SSRN (January 30, 2024).
- Joshua Macey, Shelley Welton, & Hannah Wiseman, Grid Reliability in the Electric Era 41 Yale J. on Reg. 163 (2024).
Electricity is at the center of decarbonization and climate change policy. With the rise of renewable energy, we have made the most progress in decarbonizing the electricity sector. The primary approach for decarbonizing transportation and buildings is to electrify vehicles, space and water heating, appliances, and cooking. But the race to move more and more of our activities to a clean electric grid also means that the electric grid is all the more important to our day-to-day lives. A power outage today can thus have much more of an impact – not just darkness, but also interruption of communications (by shutting down internet access), the ability to cook and stay warm, and the ability to move to a place with electricity service.
Yet, climate change is increasing the challenges of maintaining a reliable electric grid. Climate change raises the probability and severity of extreme weather events – such as heat waves – that can stress electric grids and heighten the risks of power outages. Moreover, more intermittent renewable energy on the grid itself can pose challenges to grid reliability. Consumers who are concerned about the reliability of the grid may be wary of increasing their reliance on electricity for home appliances and heating. Reliability is therefore a central issue for decarbonization. It is thus heartening to see two recent pieces of legal scholarship that highlight the issue, beginning the process of thinking about how to make progress on reliability as we move towards decarbonization. There are both federal and state-level angles to thinking about reliability, and both are important. Macey, Welton, and Wiseman focus on the federal aspects in their article, while Payne focuses on the state aspects in her article. Continue reading "The Importance of Reliability in an Age of Electrification"
Nov 29, 2024 Sergio ParejaTrusts & Estates
Although my law practice prior to entering academia focused on representing the uber wealthy, my recent interests focus more on preserving wealth in families of limited means. Professor Danaya Wright has written a thought-provoking article dealing with this issue.
Part I of Professor Wright’s article compares the stories of two decedents from Florida, Arthur Paulson and Mary Artis. Arthur and Mary’s stories highlight systemic inequalities in the preservation and transfer of wealth for working-class families. Arthur faced significant wealth erosion due to personal setbacks and economic downturns, but he was able to overcome some of those obstacles during life by tapping into his home equity by refinancing his home. In contrast, Mary never tapped into her home equity during life and thus managed to preserve substantial illiquid wealth, but the full value of her accumulated savings did not pass on to her heirs because they did not probate the property after Mary’s death. The latter outcome is unfortunate, but often happens because probate is viewed by laypersons as a complex and expensive legal process. Reforms like the Uniform Real Property Transfer on Death Act (URPTODA) and Uniform Partition of Heirs Property Act (UPHPA) improve the situation, but they do not fix the problem. Continue reading "A Proposal to Save Property for Heirs of Decedents of Modest Wealth"
Nov 28, 2024 Thomas J. McSweeneyLegal History
We are not used to thinking of medieval people as innovative or forward-looking. The Middle Ages have been constructed as the quintessential backward-looking era, and this affects the way we think about medieval law. One of the grand narratives of medieval law is that early medieval Europe was governed by a customary law that treated past practice as normative. To medieval people, the “good, old law” was good precisely because it was old, to the extent that, even when medieval people created new law, they justified it by claiming it was old. In The Time of Custom and the Medieval Myth of Ancient Customary Law, Ada Kuskowski challenges the assumption that medieval people looked to the past for legal authority and argues that medieval people most often associated custom with the present, not the past, and treated it as something that could change, often quite quickly.
Kuskowski’s piece does two things: first, it surveys writing about custom between Late Antiquity and the fourteenth century to show that there was a wide range of discourses about the way customary law related to time. The leges written in the kingdoms that succeeded the Western Roman empire were held up by jurists and scholars from the sixteenth to the nineteenth centuries as written statements of ancient Germanic custom. Kuskowski shows that in these texts “[t]he old and customary was neither good nor desirable…” (P. 162). The texts instead present themselves as projects to update, improve, and renovate the law. Continue reading "The Myth of the Good, Old Law"
Nov 27, 2024 Edward RubinAdministrative Law
The American labor movement has been revitalized in the past few decades. Detached at its outset by American exceptionalism from the ideology that supported European movements, and content to rest upon its success in obtaining the Wagner Act, it settled into a defensive mode following World War II, failing to move beyond its traditional strategies or build alliances with the progressive forces of civil rights and feminism. But labor is now demonstrating new energy and imagination, organizing aggressively among previously unrecruited workers in firms such as Starbucks, Amazon, and Walmart, and among previously excluded groups such as agricultural workers, domestic workers, gig workers, and public employees.
In Constitutional Clash: Labor, Capital, and Democracy, Kate Andrias documents various features of labor’s revival. She then argues that these efforts are not merely advocacy for a particular group of Americans, as extensive as that group may be, but also a reconceptualization of our constitutional and administrative order. With respect to constitutional rights, she identifies labor’s demand that the right to unionize should no longer be seen as the creature of statute, but as a fundamental entitlement of all employees, as it is in the U.N. Universal Declaration of Human Rights. Intrinsically related, and thus equally fundamental, is the right to strike. Labor leaders also insist on free speech in the workplace, not only as a necessary adjunct of the right to organize, but also to provide workers with personal autonomy and the opportunity for self-expression. They demand that the arbitrary and oppressive practice of at-will dismissal be replaced by due process protection. Going further, Andrias perceives labor’s minimum wage demands and associated calls for paid sick time, parental leave, and vacation time as potentially grounded on a constitutional right to minimal basic needs. Continue reading "The Labor Movement’s Reconceptualization of Constitutional Rights and Administrative Policy"
Nov 26, 2024 Felipe JiménezJurisprudence
Mathieu Carpentier,
Against “Legal Facts”, available at
SSRN (Apr. 11, 2024).
Many legal philosophers talk about and discuss “legal facts.” Mark Greenberg, David Plunkett, and Scott Shapiro, among many others, have framed their views in these terms. The expression “legal facts” is not new—one can find it, for example, with a different meaning, in Savigny’s System of the Modern Roman Law. But its use as a way of characterizing the central debates in jurisprudence between legal positivism and varieties of non-positivist views has become quite prevalent in recent years, and many scholars—myself included—have been happy to adopt it in their work.
According to Mathieu Carpentier, this is a mistake: by framing debates about legal validity and the nature of law as debates about legal facts and their relationship to other (moral, social) facts, we are necessarily biasing things against legal positivism. This is particularly damning for scholars who are otherwise committed to legal positivism: talking about legal facts is, for these scholars, “just a self-inflicted blow” (P. 1.) By replacing the older debate about legal validity (and about whether social facts alone or also moral considerations were relevant to determine the validity of legal norms) with a debate about “legal facts,” non-positivist scholars like Mark Greenberg (and their unwitting positivist companions) have sneakily (or inadvertently) changed the subject of the debate, making it now more amenable to non-positivist responses. Continue reading "Thanks, but No Thanks"
Nov 25, 2024 Blake EmersonConstitutional Law
Changes in Supreme Court precedent and presidential practice have strengthened the President’s hand while destabilizing and dismantling the regulatory state. In case after case, the Court has maximized the President’s power to control and to fire administrative officials, such as the head of the Consumer Financial Protection Bureau. Administrative law judges, who number in the thousands and hear cases ranging from disability benefits to collective bargaining, may also soon be subject to direct political control. The trend towards presidential direction of administration, even contrary to statute, is only gaining steam. Last term, in Trump v. United States, the Court held that the President’s control over appointed officers is at the “core” of executive power, and thus beyond the reach of criminal accountability.
Presidents have eagerly taken advantage of these developments, and Trump surely will continue to do so in his second term. In his first go-round, President Donald Trump’s “schedule F” executive order purported to remove merit protections for vast swaths of the civil service with “policy-making” responsibilities. While much less aggressive, President Biden’s removal of the head of the Social Security Administration without cause likewise traded on the Court’s sustained effort to break down the wall between “politics” and “administration,” a separation that has been central to executive branch operations for over a century. With Trump preparing to occupy the presidency once more, the trend will likely only increase. Presidents and Justices have collaborated to remake the executive branch into an instrument of the President’s personal power and partisan interest. The second Trump term is likely to tell us much more about this partnership. In particular, we will learn what limits—if any—the Court is willing to place on personal rule. Katherine Shaw’s Partisanship Creep shows how these administrative-law problems are of a piece with other developments in constitutional jurisprudence and practice. These developments have given a greater scope to lawful political partisanship in government decision-making. Cases on public corruption, campaign finance, and partisan gerrymandering have loosened legal controls around purely partisan motives in basic public functions, from election administration to transportation infrastructure. Continue reading "The Personal is Partisan-Political"
Nov 22, 2024 Marin K. LevyCourts Law
Rachel Bayefsky,
Judicial Institutionalism, 109
Cornell L. Rev. __ (forthcoming 2024), available at
SSRN (Feb. 12, 2024).
For much of his tenure as Chief Justice, John G. Roberts has been described as an “institutionalist.” It has been so common to see the word associated with the Chief as to almost be his epithet. (Homer gave us “the man of twists and turns, Odysseus” and the modern Court gave us “the institutionalist, John Roberts.”) But October Term 2023 has prompted a discussion of whether the label still fits. And beyond that, we may wonder if there are any others at One First Street (see, e.g., Justice Elena Kagan) to whom the descriptor applies.
But before we can engage in a meaningful conversation about whether any members of the current Court are institutionalists, we must address what we mean in using the term. We might share a general sense that the word denotes taking account of the interests of one’s court when deciding a case—but what interests, exactly? And should we be for institutionalism or against it? Or, to put a finer point on it, when should institutional considerations (however defined) eclipse one’s own independent judgment of how a case should be decided? Enter Rachel Bayefsky’s forthcoming article—Judicial Institutionalism—at just the right moment. Continue reading "(In Defense of) Judicial Institutionalism"
