Mar 7, 2012 Michael C. HarperWork Law
It is probably fair to generalize that the best American legal scholarship in the fields of labor, employment, and employment discrimination law has found little inspiration in the study of comparative law. Hugh Collins’s analytic and insightful but succinct overview of British employment law — republished in 2010 in a second edition to account for significant developments in response to European Union law — should teach any perceptive American reader that this need not be the case. This two hundred sixty page volume demonstrates that studying how other developed countries have addressed common issues presented by the employment relationship not only can help define practical and conceptual problems for American law to address but also can help spark creative thinking about solutions.
Professor Collins, who has served as general editor of the Modern Law Review and twice successfully led the law department at the London School of Economics, places the employment law of Britain in both an historical and political-social context. The historical context includes our common nineteenth century liberal tradition of free contracting and our common twentieth century response of industrial pluralism to the “commodification” of labor and the resultant threats to economic and political stability. The political-social context includes the sometimes divergent influences from America and Europe, with the latter becoming more dominant through European Union directives. Continue reading "Placing British Employment Law In Context"
Mar 5, 2012 Donald TobinJotwellTax Law
Michael Hatfield,
Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties, and Advice, 12
Fl. Tax Rev. 1 (2012), available at
SSRN.
Major cases in the news from tax shelter promotions to corporate accounting abuses have once again put the ethical obligations of lawyers, and specifically tax lawyers, onto center stage (or at least in the wings). Congress passed increased standards for return preparers and the Treasury has followed with increased preparer standards in Circular 230.
It is within this framework that I read Professor Michael Hatfield’s article, which examines the ethical debate and discussions by some of the leading scholars and practitioners during the 40s, 50s, and 60s. These tax lawyers were at the forefront of discussions regarding the modern income tax. Professor Hatfield’s historical examination provides us with insight into what they were thinking, and provides us with food for thought as we examine modern ethical problems. Professor Hatfield’s point is just that, to provide us with food for thought. He does not attempt to draw conclusions from this debate regarding what we should do now. Instead, he carefully and thoroughly outlines the debate at the time and leaves us with opportunity to draw our own lessons from the analysis. What is clear from the article is that the leading tax lawyers of the time were as conflicted as we are today on many issues, especially the question whether tax lawyers had a special “duty to the system.” Interestingly, however, they were almost universal in their agreement on two major points: (1) that the payment of taxes was a civic duty, one which had a strong patriotic element, and (2) tax lawyers had a duty to be proponents, reformers, and educators about the tax system. Continue reading "Tax Ethics: Advice from the Past"
Mar 2, 2012 Anne Joseph O'ConnellAdministrative LawJotwell
Oral arguments on the constitutionality of the Patient Protection and Affordable Care Act will consume three days of the Supreme Court’s schedule, an unusual assignment of the Court’s time. But the constitutional challenge, assuming it fails, will be just the first act in a long performance. Abbe Gluck’s tremendous essay recently published in the Yale Law Journal takes up some of the fascinating potential statutory interpretation questions waiting in the wings.
These questions arise from the mix of institutional design choices involving the states in the Act (and in other legislation). The choices include provisions implemented only by the federal government, provisions implemented only by the states, and, of particular interest, provisions involving both sets of actors. Gluck trains on this last category, noting that the Act “appears to deploy the [state-federal] relationship strategically – as a way to expand the federal presence into several key areas of traditional state control – and somewhat paradoxically, also expressively, as a way to acknowledge the states’ traditional authority over health insurance.” (pp. 584-5) Continue reading "State Interpreters"
Feb 29, 2012 Christopher SprigmanIntellectual Property LawJotwell
So what does my frustration with the New York Mets have to do with copyright law? A surprising amount. And I say this even though the Mets have done a lot of things to make life difficult for their fans. Over the years, I’ve watched my ballclub pay insane money to a series of pitchers who could not pitch, hitters who could not hit, managers who could not manage. I’ve endured a seemingly endless string of Subway Series failures against the hated Yankees. I’ve celebrated the demise of the awful Shea Stadium, only to see it replaced with a new ballpark named for a bank that combined greed, arrogance, and ineptitude at a scale nearly sufficient to destroy the American economy.
And yet, from an IP geek like me, the ways in which the New York Mets have abused the copyright laws of the United States are even worse. Continue reading "Law in the Books vs. Law in the World: The Case of Copyfraud"
Feb 27, 2012 Lonny HoffmanCourts LawJotwell
William Hubbard,
Preservation Under the Federal Rules: Accounting for the Fog, the Pyramid, and the Sombrero, available at
Lawyers for Civil Justice.
William Hubbard’s Preservation Under the Federal Rules: Accounting for the Fog, the Pyramid, and the Sombrero is an elegant, important, and provocative argument about what the Federal Rules of Civil Procedure should say about duties to preserve documents and electronically stored information. And it could not be timelier. The Judicial Conference’s Civil Rules Advisory Committee is actively considering rules that, for the first time, would expressly address preservation obligations and the consequences of not doing so. This effort is driven by a perception that—at least for a small percentage of the federal caseload—preservation burdens have contributed to spiraling costs in civil cases. Hubbard joins a distinguished list of authors who have written about preservation issues, but his paper seemed to attract the attention of a number of rulemakers at the Civil Rules Advisory Committee’s most recent meeting in November 2011.
Many have argued that the current Federal Rules, which are mostly silent on preservation obligations, need to be revised to expressly address preservation issues. As for what a federal preservation rule would look like, discussions have largely centered on three main questions: trigger (when does the duty to preserve arise), scope (what types and sources of information should be subject to preservation) and sanctions (what are the consequences of failing to preserve). Hubbard offers policy suggestions for all three. Continue reading "A Modest Proposal on Preservation"
Feb 24, 2012 Jonathan SimonCriminal LawJotwell
Guyora Binder,
Making the Best of Felony Murder, 91
B. U. L. Rev. 403 (2011). available at
SSRN.
“Making the Best of Felony Murder” is the culmination of a series of articles (and one book review essay) that have addressed the felony murder rule in American states and precedes a monograph to be published by Stanford University Press later this year. [The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59 (2004) (ssrn); The Culpability of Felony Murder, 83 Notre Dame L. Rev. 965 (2008) (ssrn); Meaning and Motive in the Law of Homicides, 3 Buff. Crim. L. Rev. 755 (2000); Felony Murder (Stanford University Press, forthcoming 2012).] Binder has saved the best for last, and offered us not only a reading of the felony murder rule destined to help wake us up from a particularly telling pedagogic mystification, but a model of history and political theory as analytic tools for reconstructing doctrine.
Throughout this project, Binder challenges the view that felony murder rules are an archaic survivor of a hoary English common law approach to homicide liability (and criminal liability more generally) which endure in contemporary law despite clashing severely with the principles of modern criminal law liability because of their popularity with elected legislatures and prosecutors. In addition to being a core “lesson” in first year criminal law classes, this view of felony murder arguably anchors a broader modernist conception of criminal law theory first laid down in the 1930s by criminal law scholars such as Herbert Wechslerand Roland Perkins, and refined in our era by giants such as our own Sandy Kadishand Frank Zimring. Continue reading "Public Criminal Law at its Best"
Feb 22, 2012 Brian BixJotwellJurisprudence
A number of prominent legal positivists in recent years (including Jules Coleman and Scott Shapiro) have taken it as an urgent project – and have taken it as their project – to “explain law’s normativity.” By that, they report that what needs to be explained is the way that law gives us reasons for action. There is always something a little ironic when legal positivists try to explain the normativity of law, for it is generally considered to be foundational to that approach to law that it denies any necessary moral content to legal systems in general or valid legal norms in particular.
In “Reason-Giving and the Law,” David Enoch has worked as much to “deflate” the problem of law’s reason-giving as to resolve it. His basic point is that there is nothing that remarkable about the giving of reasons for action. Continue reading "On (Not) Explaining Law’s Reason-Giving Power"
Feb 20, 2012 Margaret DaviesEqualityJotwell
‘Before rules, were facts: in the beginning was not a Word, but a Doing. Behind decisions stand judges; judges are men; as men they have human backgrounds.’ (Llewellyn 1931, p. 1222) Gender-neutralised, the sentiments contained in Llewellyn’s famous words and the article which they introduce still hold – the human background of judges is important, and ‘doings’ or ‘tangible realities’ rather than words and abstractions, are what makes law dynamic, purposeful, and responsive (if slowly) to an even more dynamic social context.
How, then, might law be different if judicial decisions were routinely made by feminists? What would a ‘female-gendered mark on the law’ actually look like? (p. 8). Feminist Judgments: From Theory to Practice begins to answer these (and other) questions. It presents twenty-three alternative feminist judgments for actual cases, and commentaries to accompany the cases, written by feminist academics and activists. All of the cases were decided in England and Wales, and most (though not all) were decided relatively recently and reflect current law. The idea of re-writing judgments from a feminist perspective has a Canadian precedent in the Women’s Court of Canada (see Majury 2006) while the idea of rewriting judgments (not necessarily feminist) has a US precedent in two books edited by Jack Balkin (2002; 2005, but see Majury 2006, n14). Whereas the Canadian cases focus on equality jurisprudence under the Canadian Charter of Rights, the cases in Feminist Judgments deal with a very broad range of legal matters: consent to medical treatment, same-sex marriage, capacity to marry, the defence of provocation, refugee law, manslaughter by neglect, trespass to property, custody to children under family law, pregnancy discrimination, consent to bodily harm, evidence and many more. Some of these areas are framed by British and European equality and human rights law, but many rely on development of the common law or interpretations of statutory provisions. Some of the judgments affirm the decision made in the existing case but do so using a different reasoning process, while others reject the original decision. Continue reading "Feminist Judgments"
Feb 17, 2012 Richard ParnhamJotwellLegal Profession
As a current PhD student, whose research interests include legal professionalism and large law firms, I wish Andrew Francis’ latest book had been written several years ago. In just 228 pages, the book positively canters through many of the research themes I spent months compiling for my own literature review.
For example, by the end of chapter one, a novice reader will be made aware of the size, entry routes and recent reforms to the English and Welsh legal market, to name but a few topics. By the end of the first page of chapter 2, the reader will be introduced to many historical, and current, writers on a range of issues relating to legal professionalism – no mean feat in a mere 20 pages. Continue reading "The Boundaries of Legal Professionalism in England & Wales"
Feb 15, 2012 Paul M. SecundaWork Law
One of the more noticeable effects of the on-going global financial crisis is the increased attention being paid to the amount of money being spent by state governments on public pension plans. Unlike private sector pension plans, which are governed by the federal Employee Retirement Income Security Act of 1974 (ERISA), public pensions are instead covered by a vast array of complex state laws and regulations. So while most people are pointing out that something must be done about the burgeoning public pension funding deficits, many have been stymied about how to undertake the amendment of these plans in a legal fashion.
Part of the problem is that states have adopted different legal theories to protect public pension rights. To some states, pension rights are property rights, while in other states, pension rights are contractual in nature. Still a few states adhere to the traditional approach and see public pensions as mere gratuities. In any event, and as many states have found out much to their dismay, the business of amending a public pension plan is a tricky one, filled with legal minefields. Just ask the states of Colorado, Minnesota, and South Dakota, which have been all sued after seeking to reduce the annual cost-of-living- adjustment (COLA) for current retirees.
All this chaos in the public pension plan world requires some ordering principles. At least as far as organizing states’ various legal approaches to public pension plans, Amy Monahan’s paper, Public Pension Plan Reform: The Legal Framework, does exactly that. Understanding that many states are either currently going through a process, or contemplating a process, to amend their public pension plans to save money in these difficult economic times, Monahan first explains the difference between private pension plans and public pension plans, and then effectively explains the primary legal approaches states have taken to protect public employee pension rights. Continue reading "Public Pension Plan Problems"
