Feb 13, 2012 Lynda Wray BlackJotwellTrusts & Estates
In his May, 2011 article, Who Are The Beneficiaries of Fisk University’s Stieglitz Collection?, Alan L. Feld presents an intriguing case study. Charitable giving is not new, nor are the issues of donor standing, beneficiary standing or the doctrine of cy pres. In fact, the issues arising from the obsolescence or dis-utility of charitable gifts recently have captured the attention both of the general public and the academy. Professor Susan N. Gary’s article entitled, The Problems With Donor Intent: Interpretation, Enforcement, and Doing the Right Thing, 85 Chi-Kent L. Rev. 977 (2010) presented a comprehensive analysis of the legal issues implicated in a variety of noteworthy failed charitable gifts.
By focusing on the Stieglitz Collection, a muti-million dollar collection of artwork housed and maintained at Fisk University in Nashville, Professor Feld’s article serves as an important complement to the somewhat longer piece by Professor Gary. Professor Feld raises important issues including the role of the state’s attorney general in overseeing charitable trusts, fidelity to the all too often enigmatic intent of the donor, the tension between the doctrine of cy pres and literal interpretation of conditions on gifts, the importance of determining the charitable beneficiaries, and questions of who has standing to sue to enforce charitable purposes. Professor Feld presents compelling reasons for expanding the legal standing of the beneficiaries of a charitable trust. Continue reading "The Failings of Donor Intent"
Feb 10, 2012 Richard MurphyAdministrative Law
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Comments on H.R. 3010, The Regulatory Accountability Act of 2011, submitted by the ABA Section of Administrative Law and Regulatory Practice to the House Judiciary Committee (Oct. 24, 2011).
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Testimony of Sidney A. Shapiro (University Distinguished Chair in Law, Wake Forest School of Law; Vice President, Center for Progressive Reform), Hearing on H.R. 3010, Regulatory Accountability Act of 2011, House Judiciary Committee (Oct. 25, 2011).
In early December 2011, the House passed two alarming bills that, if ever enacted, would wreak havoc on the rulemaking process. On December 7, it passed the REINS Act—the acronym stands for “Regulations from the Executive In Need of Scrutiny.” This bill is simple in its design, requiring congressional approval for regulations that have an economic impact in excess of $100 million. Considered as a reform of the rulemaking process, it has the honest virtues of a clean kill—a bullet to the head. Less than a week before, on December 2, the House passed the Regulatory Accountability Act (“RAA”). The RAA would cripple rulemaking by adding dozens of new procedural and analytic requirements to the process. These requirements include, among many other things, extensive cost-benefit analysis at multiple stages of the process and even formal rulemaking for “high impact” rules. Yes—that’s right, formal rulemaking could come back from the (almost) dead. Rather than a clean kill, the RAA promises to haul rulemaking into a back alley and beat on it until maybe it dies.
If you are the sort of person who frequents JOTWELL’s administrative law page, then you probably already know something about both these bills. Regarding the REINS Act, it may be fair to say that there isn’t all that much to know—it is easy to describe what it does and its anti-regulatory intent is as plain as the summer sun. The RAA is a far more complex beast, which makes it very difficult to summarize and concisely assess. Such work is important because proponents of the RAA might find themselves in control of the Senate and the Presidency someday not too long from now. If this eventuality occurs, one must hope that the powers-that-may-be can be persuaded that they didn’t really want to cripple administrative rulemaking. They just said they did when they didn’t have the power to make it happen.
It is with this context in mind that I want to draw your attention to two excellent pieces of administrative law scholarship that were submitted to the House Judiciary Committee as it considered the RAA. (Links to both are at the top of this short essay.) Continue reading "Superfriends of the APA"
Feb 8, 2012 Mark TushnetConstitutional LawJotwell
The Texas Law Review recently published an important symposium on Latin American constitutionalism. Many of the articles make important contributions to the field of comparative constitutional law, not least because the English-language literature in the field has been dominated by discussions of constitutional doctrine in Europe and North America. (Not surprisingly, the part of the literature on creating constitutions has had a wider geographical range.)
The two articles I have singled out deal with a phenomenon of growing importance outside the United States, the judicial enforcement of social and economic – so-called “second generation” – rights. Interpreting constitutions adopted or amended substantially much more recently than the U.S. Constitution has been, constitutional courts around the world have moved past the question on which U.S. scholars typically focus – whether courts should enforce second-generation rights – to consider how to do so. Or, perhaps more precisely, many courts have embarked on projects of enforcing second-generation rights, and their performance allows scholarly evaluation, informed by actual experience in additional to theoretical speculation, of judicial enforcement of second-generation rights. Continue reading "New Comparative Constitutional Scholarship on Enforcing Second Generation Rights"
Feb 6, 2012 Angela FernandezJotwellLegal History
Samuel Moyn,
From Antiwar Politics to Antitorture Politics, available at
SSRN.
Columbia University history professor Samuel Moyn (visiting at Yale Law School in the spring term of 2012) has recently posted his paper From Antiwar Politics to Antitorture Politics on SSRN, a paper I heard him present at a November session of the Critical Analysis of Law workshop at my law school, the Faculty of Law, University of Toronto. I write about it here on JOTWELL because it is an excellent paper, which law professors might not otherwise hear about, offering an extremely thoughtful intervention on the recent history of international law.
Moyn’s thesis is that international law in the human rights era has moved from a Nuremberg-informed concern with the crime of waging aggressive war to a preoccupation which he thinks first developed in the later stages of the Vietnam War with crimes committed in the conduct of war itself, with the means and methods of warfare so familiar to us now in post-9/11 debates about the detainment and torture of prisoners in the “War on Terror.” Until My Lai in 1969, Moyn argues, Americans were shockingly cavalier about illegal military acts committed in the Vietnam War that were widely known to be occurring – mistreatment of POWs (direct military shootings and torture of suspected South Vietnamese subversives), search and destroy missions that made little or no effort to distinguish between combatants and civilians, and massive aerial bombardments, including unauthorized bombings in Cambodia and Laos. When American lawyers entered the debate about the legality of the war, Moyn shows that they paid little attention to crimes committed in the conduct of the war. Here he focuses on the activities of “The Lawyers Committee Concerning American Policy in Vietnam” between 1965 and 1969. This group concentrated on aggression and the legality of American intervention in Vietnam and nowhere addressed the law governing the conduct of warfare. Things did change. Moyn gives a central place in his story to Richard Falk, a member of this group and an academic lawyer who eventually became very vocal in his opposition to the war, including an emphasis on illegal methods of conducting it. The second person who features prominently in his paper is a more conservative critic, Telford Taylor, a military man who had been a prosecutor at Nuremberg, whose popular book Nuremberg and Vietnam: An American Tragedy (1970) condemned the war. Taylor made the allegations of war crimes committed in Vietnam “respectable,” as he could not be seen as relying on spurious accounts from the far left or dismissed as a Communist sympathizer. Taylor followed the post-My Lai trend of emphasizing war crimes, casting doubt on the whole idea of aggressive war from Nuremberg. Taylor appreciated that “unlike at Nuremberg where it was obvious who had started World War II, the Vietnam era showed that one man’s aggressor was another man’s victim (and vice versa).” Continue reading "Aggression v. Atrocity in the History of International Law: From the Tokyo Trial to the Vietnam War"
Feb 3, 2012 Frank PasqualeJotwellTechnology Law
Scott Peppet’s article Unraveling Privacy: The Personal Prospectus & the Threat of a Full Disclosure Future has offered a fundamental challenge to reigning privacy paradigms in cyberlaw. The old privacy law assumed that the right set of laws could help individuals hide embarrassing facts or disable invasive tracking. The encroaching “full disclosure future” ensures that those who try to maintain secrets look like they have “something to hide.” We used to be afraid of shadowy watchers collecting incriminating “digital dossiers;” now we worry over not measuring up when rivals reveal better “personal prospectuses” than our own. Peppet’s elegant interweaving of social science and law renders us unable to rely on old privacy paradigms like “notice and consent” online.
Something to Hide
Traditionally, privacy law experts have assumed that a combination of markets and law can preserve privacy. Firms will compete to offer more or less privacy. Data collectors will provide customers with various “privacy settings” that tailor online services to optimize self-disclosure. Some have proposed “personal data vaults” to manage the emanations of sensor networks that track movements and actions in real space. Jonathan Zittrain’s classic article on “privication” proposed that the same technologies used by copyrightholders to monitor or stop dissemination of works could be adopted by patients concerned about the unauthorized spread of health information. Continue reading "The End of “Notice and Consent” as Meaningful Privacy Protection"
Feb 1, 2012 Ann BartowIntellectual Property LawJotwell
Yvette Joy Liebesman,
Downstream Copyright Infringers,
Kan. L. Rev (forthcoming), available on
SSRN.
This article is a fine example of smart and accessible copyright scholarship that identifies and clearly describes a perplexing aspect of the current law, and then succinctly proposes sensible solutions. The somewhat startling problem that Saint Louis University Law Prof Yvette Joy Liebesman identifies is this: A consumer who purchases authorized downloads of musical recordings, intending to behave legally and in consummately copyright law compliant manner, may actually be guilty of copyright infringement if the songs she purchases in digital format turn out to infringe the copyrights of other songs, such as by including unauthorized samples of vocal or instrumental riffs.
Liebesman points out that based on the ways the pertinent statutory provisions of the Copyright Act were written and interpreted, had the same people purchased the same songs, but with the copies embedded in vinyl or written on a compact disk, they would not be vulnerable to liability infringement for owning them. But the recording industry has been so eager to frighten off prospective unauthorized downloading of music that it persuaded Congress and the courts to construct a legal regime under which even legal downloaders are at risk, facing strict infringement liability for completely innocent acts of (e.g.) purchasing songs from iTunes and loading them on an iPod. This group of potential defendants includes me, and most of you reading this. Continue reading "The Copyright Law is An Ass: A Brash New Installment in this Fascinating Ongoing Series!"
Jan 30, 2012 Jay TidmarshCourts LawJotwell
In this comment on the Supreme Court’s October 2010 Term, Judith Resnik links together three cases – two of them among the Term’s blockbusters and a third that traveled beneath the radar screen – to explore issues of access to courts in modern America. The blockbusters – AT&T Mobility LLC v. Concepcion, and Wal-Mart Stores, Inc. v. Dukes– have evident connections, as a host of commentators have already noted (and undoubtedly will continue to note in myriad forthcoming articles). Concepcion held that the Federal Arbitration Act preempts a court’s ability to invalidate as unconscionable under state law consumer-contract clauses that required consumers to waive the right to obtain classwide arbitration. Wal-Mart held that a class composed of female employees (perhaps as many as three million in total) could not be certified under Federal Rule of Civil Procedure 23. In adopting constrictive views of Rule 23(a)’s “commonality” element and Rule 23(b)(2)’s injunctive-class-action element, Wal-Mart reduced the scope of federal class actions. But its holdings or dicta on a number of other points – requiring a “rigorous analysis” of Rule 23’s elements, suggesting a need for opt-out rights whenever class members seek monetary relief, and crushing the use of sampling methods to prove individual class members’ damages – have contributed equally to a sense that the Court has sounded the death knell for class actions.
Although too melodramatic a take-away from either Concepcion or Wal-Mart, the death-knell concern fits neatly into a storyline that has been building since the Class Action Fairness Act of 2005, as well as two cases in the October 2009 Term (Shady Grove Orthopedic Assocs. v. Allstate Insurance Co., and Stolt-Nielsen S. A. v. AnimalFeeds International Corp.): federal courts are exercising increasing control over the availability of class actions, whether in court or in arbitration. And that storyline feeds into the larger storyline of an anti-consumer, anti-employee, pro-business Roberts Court. Continue reading "Access to Courts and the Democratic Order"
Jan 27, 2012 Sharon GiladCorporate Law
The seminal socio-legal work of Neil Gunningham, Robert Kagan and Dorothy Thornton suggests that social activism is an important influence over firms’ inclination to comply with – and even exceed – regulatory environmental-protection requirements. They further acknowledge that corporations vary in their responsiveness to similar levels of societal pressure, and that the micro-mechanisms underlying this variation require further investigation. Similarly, a recent body of research in sociology and management investigates corporations’ responses to social protest. Yet, much of this literature investigates firms’ average or overall response to social protest, and not the variation among firms. The significance of Weber et al.’s article – From Street to Suits: How the Anti-Biotech Movement Affected German Pharmaceutical Companies – stems from its focus on micro-level analysis of firms’ varied response to social protest.
Weber et al.’s research investigates “how external contestation manifests itself in the internal polity of organizations” (ibid, 109). Their empirical focus is on German pharmaceutical companies’ decisions to invest in the development of biotechnology given an anti-genetic social-movement activism during the 1980s. In order to answer this question, the authors collected press coverage, various primary documents, interviews and secondary sources and produced in-depth portrayal of the social movement and of the responses of six leading German pharmaceutical companies. Continue reading "How Social Protest Infiltrates the Realm of Commercial Decision Making"
Jan 25, 2012 Jennifer ChaconCriminal Law
In most criminal procedure classes, Supreme Court cases focusing on immigration policing get short shrift. Perhaps not coincidentally, much of the academic literature – including the literature analyzing the role of race in policing – is also insufficiently attentive to relevant cases involving immigration policing. In Undocumented Criminal Procedure, Devon W. Carbado and Cheryl I. Harris remind us of three important cases involving immigration policing, and highlight the ways in which these cases have structured the jurisprudential framework governing the role of race in “ordinary policing.” Their efforts could not have come at a better time.
In December 2011, Assistant Attorney General Thomas E. Perez of the Civil Rights Division of the Department of Justice wrote a letter to Bill Montgomery, the County Attorney for Maricopa County, summarizing the results of a prolonged investigation of the Maricopa County Sheriff’s Office (MCSO). The Department found “reasonable cause to believe that MCSO engages in a pattern or practice of unconstitutional policing.” The letter continues:
Specifically, we find that MCSO, through the actions of its deputies, supervisory staff, and command staff, engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices….
That same month, the Civil Rights Division issued findings of similar misconduct by the East Haven police. Deputy Assistant Attorney General Roy L. Austin Jr. stated: that the Department had found that:
[T]he East Haven Police Department engages in discriminatory policing against Latinos including: targeting Latinos for discriminatory traffic enforcement; treating Latino drivers more harshly than non-Latino drivers after traffic stops; and intentionally and woefully failing to design and implement internal systems of control that would identify, track, and prevent such misconduct. The pattern or practice of discriminatory policing that we observed is deeply rooted in the Police Department’s culture and substantially interferes with the ability of the Department to deliver services to the entire East Haven community.
The findings of these two investigations are deeply troubling. Why is this happening? Continue reading "Expanding the Canon"
Jan 23, 2012 Michael E HerzAdministrative Law
Administrative agencies are often said to possess (a) expertise and (b) accountability. These are the attributes that Justice Stevens relied on in Chevron, for example, to justify judicial deference to agency “interpretation” that is really policymaking. Both of these admirable characteristics are exaggerated, but neither is mythical. What is to be done, however, when they conflict?
This is a recurrent question. Whether and when agencies should be set up as independent commissions, the disagreement between the majority and the dissent in State Farm, much of the battle over regulatory review – all involved at least in part the question whether the president’s preferences, or “political” considerations, should trump the agency’s (expert) judgment. One doctrinal locus of this dispute is the arbitrary and capricious test. Is it “reasoned decisionmaking” if an agency does something simply because the White House told it to? State Farm and Massachusetts v. EPA suggest the answer is no. Four, and arguably five, Justices in FCC v. Fox Televisions Stations imply the answer may be yes, and a number of commentators – most recently, Kathryn Watts – have argued for judicial acceptance of political justifications for agency action. Continue reading "Political Oversight of Agency Decisionmaking"
