Apr 16, 2012 Kimberley BrooksJotwellTax Law
For the most part, I prefer less choice. More choice can lead to less time and less pleasure. Think about the decision to stay in or go out for dinner. You look in your cupboards and there isn’t much. Perhaps a can of tomato and rice soup. So, you think, maybe it’s a good idea to go out. But where? Sometimes brainstorming the options alone is daunting, and after generating a list I simply decide to stay in. And that’s a good outcome. In a less ideal case, I’ll spend several hours on the internet, reading reviews of restaurants, looking at menus and prices, calling friends for views, only to become so daunted by the options and by the lack of an obvious “winner” that I’ll stay home. I will never regain that time. Worse yet, I do all that research – the internet research and calls – and I chose something. But when I go to the restaurant it’s a disappointment. I spend the night wondering if I could have made a better decision. Cream of tomato soup with rice, and three extra hours, would be preferable.
In “Choosing Tax: Explicit Elections as an Element of Design in the Federal Income Tax System,” Heather Field approaches the issue of the role and value of explicit tax elections. Apparently more than 300 explicit tax elections litter the Internal Revenue Code. Field explains that an explicit election is a case where multiple possible tax treatments might apply to a single economic event. Continue reading "No Option: Thinking Through Elections"
Apr 13, 2012 Herbert BurkertTechnology Law
Julie E. Cohen,
Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press, 2012), available at
juliecohen.com.
We always look for writings that make sense–both by themselves, treating their subjects adequately, and by making sense to us as cyberlaw people. These writings help us to understand better the world around us; they also give us something that the knowledge of positive law and a vague understanding of technological change alone cannot give us. And so we become what Julie Cohen names so aptly “disciplinary magpies collecting alluring bits of this and that and cobbling them together.”
What is the recipe for sense-making? I see two universal elements: (i) The phenomena hitherto seen separately are being seen as connected in an exercise of reconfiguration, and (ii) a methodology is applied that gives us new insights into the forces that might be at work in these reconfigurations. There are two more for our special needs as law people: (iii) a normative stand, and (iv) pragmatic suggestions deriving from the new insights. The outcome is a sort of new magnifying glass that helps us to see new connections, to detect structures and processes at work, and to inspire speculation on new connections. Of course, we would not expect that the new world model would replace others as the sole explanation, we are content with having obtained yet another supplement. Cohen delivers: she connects, introduces methodology, takes a normative stand and makes suggestions, but her model is not one that would allow us to contentedly label yet another drawer and close it with satisfaction. Rather, she keeps us exposed to the unruliness of life and culture that the lawyer in us so abhors. Continue reading "Making Sense"
Apr 11, 2012 Cary CoglianeseAdministrative LawJotwell
Administrative law scholars widely consider it to be a fact that the rulemaking process has become substantially burdened with analytical requirements, a burden that either has caused agencies to retreat from rulemaking or has significantly delayed agencies’ ability to adopt new rules. Lamentation about this ossification of rulemaking pervades much scholarship in administrative law and underpins many scholars’ prescriptions about procedural reform.
In a recent article in a leading, peer-reviewed public administration journal, Jason Yackee and Susan Yackee try to measure the ossification of rulemaking, statistically analyzing the time needed to complete all non-routine rules initiated by every federal agency over nearly a two-decade period. What they find stands in stark contrast with the prevailing view among administrative law scholars and draws into doubt whether the ossification effect is real. Continue reading "The Search for Slowness"
Apr 9, 2012 Kerri StoneJotwellWork Law
Scholars who opine on issues of workplace discrimination know that the lifeblood of their scholarship is the work of those who conduct studies that capture and document the phenomena about which they write. Those researchers who conduct such studies with an informed eye toward the law are thus invaluable to employment discrimination scholars, and it was with great interest that I read Gender Harassment: Broadening our Understanding of Sex-Based Harassment at Work by Emily A. Leskinen, Lilia M. Cortina, and Dana B. Kabat, 35 Law & Hum. Behav. 25 (2011). The study, in the authors’ own words, seeks to “challenge[] the common legal and organizational practice of privileging sexual advance forms of sex-based harassment, while neglecting gender harassment.”
Citing to eminent scholars who have contended that gender harassment should be subsumed within the broader category of cognizable sexual harassment, the authors explain that gender harassment has been defined as “a form of hostile environment harassment that appears to be motivated by hostility toward individuals who violate gender ideals rather than by desire for those who meet them.” Simply put, it is “hostility that is devoid of sexual interest.” Proffering some much needed empirical support for the notion that gender harassment is at least as deleterious, if not more so, than its actionable counterpart, the authors advance ideas that may not have entered cultural consciousness, but that need to be properly understood by legislators, judges, advocates, scholars, and all others who shape and affect the law of workplace discrimination. So, for example, the authors’ research enables them to posit that sexual harassment, in what they call “traditionally male domains,” mostly consists of gender harassment absent any sexual advances. This compelling finding necessitates a shift in the popular conception of what sex-based harassment in the workplace truly looks like. Moreover, the authors’ research enables them to posit that the negative personal and professional impact of gender harassment in the workplace on women is immense. Continue reading "Documenting What Really Goes on in the Workplace"
Apr 6, 2012 Christina BurnettJotwellLegal History
Rose Cuison Villazor,
The Other Loving
: Uncovering the Federal Government’s Racial Regulation of Marriage,
86 N.Y.U. L. Rev. 1361 (2011).
Legal historians: Find a window to read Rose Cuison Villazor’s “The Other Loving,” published in the NYU Law Review last fall. Although Villazor, Associate Professor of Law at Hofstra, does not identify primarily as a legal historian, she has written more than one historical work well worth a read. An earlier article examined alien land laws in the United States, telling the story of Oyama v. California (1948), which held unconstitutional a provision of California’s Alien Land Law that discriminated against owners of property bought by parents who were ineligible to become U.S. citizens. This more recent article, in turn, explores how immigration, citizenship, and military statutes and regulations in the period around World War II interacted to produce federal anti-miscegenation law, with both domestic and extraterritorial effects. Carefully researched and engagingly written, Villazor’s article seeks to challenge the conventional view that legal restrictions on marriage have traditionally been the sole domain of state, not federal, law—with implications for historical scholarship and for current political debates.
Villazor opens the piece with the story of Helene and John Bouiss, a half-Japanese, half-German woman and her white American husband, who in the spring of 1946 arrived in Seattle, Washington aboard a military ship, having been married at sea by the captain days earlier. Despite the passage of the so-called War Brides Act the year before, officials stopped Helene at the border on the ground that immigration law prohibited the entry of persons ineligible to become U.S. citizens. At the time, U.S. law put citizenship off-limits to persons identified as belonging to certain racial and ethnic groups, including Japanese. Helene, a Swedish citizen on the basis of a prior marriage, was a person of “mixed racial blood,” including that of a citizenship-ineligible group, in the eyes of the relevant immigration regulations; she was therefore covered by the prohibition. Her marriage to a U.S. citizen soldier honorably discharged from the military did not help; nor did the Ninth Circuit Court of Appeals, which upheld the exclusion. (The case never made it to the U.S. Supreme Court.) Continue reading "Love and War"
Apr 4, 2012 Dennis PattersonJotwellJurisprudence
Jan Smits, “A Radical View of Legal Pluralism” in Leone Niglia, ed,
Pluralism and European Private Law (Oxford, 2012), available on
SSRN.
Legal Pluralism is both a phenomenon and a response to that phenomenon. We live in a world with a plurality of legal orders. There are municipal legal systems and international law. These are the most familiar forms of law, the most comfortable types of legal orders. Then there are international or “supranational” legal orders like the European Union. Finally, there are private and transnational legal orders that traverse the boundaries both of “law” and the very notion of a “system” (think of Lex Mercatoria or Sports law).
Jan Smits has been writing about legal pluralism for some time. His work is always interesting. This chapter is both intelligent and provocative because Smits takes legal pluralism to a new place and gives it a dimension no one has yet considered. Continue reading "Pluralism Reimagined"
Apr 2, 2012 Laurel TerryJotwellLegal Profession
Australia is the home to some of the world’s most interesting and provocative legal profession developments. For example, Australian jurisdictions were among the first jurisdictions to permit nonlawyer ownership of law firms. Not long thereafter, the Australian regulatory scheme was amended to permit outside investment in law firms. As a result, Australia became the site of the world’s first publicly traded law firm. Australia has been on the forefront of other lawyer regulation developments such as the proactive use of ex ante systems of regulation.
As commentators and jurisdictions elsewhere discuss and debate the proper scope of lawyer regulation, many look to Australia’s experiences in the hopes that they will provide valuable information and lessons. Those actively following the Australian developments include the American Bar Association (ABA), the UK Legal Services Board, and the Solicitors Regulation Authority (SRA), which is the front-line regulator for solicitors in England and Wales. Continue reading "Regulation and Theory: What Does Reality Have to Do With It?"
Mar 30, 2012 Paul HorwitzConstitutional LawJotwell
Randall P. Bezanson,
Whither Freedom of the Press?,
Iowa L. Rev. (forthcoming), available at
SSRN.
Randy Bezanson’s recent short piece, Whither Freedom of the Press?, is an instructive example of how to get around an obstacle—two obstacles, really. The first is the Supreme Court’s opinion in Citizens United v. FEC, 130 S. Ct. 876 (2010). In the course of striking down a law prohibiting the direct use of corporate or union treasury funds for electioneering communications, the Court stated that “the institutional press has [no] constitutional privilege beyond that of other speakers.”
The second obstacle is actually more formidable. In a recent article in the University of Pennslyvania Law Review, Freedom of the Press as an Industry, or for the Press as a Technology?: From the Framing to Today, Eugene Volokh takes on the view of some writers, including Justice Stevens in his dissent in Citizens United, that the Press Clause of the First Amendment provides some form of protection to the press as an “industry” or institution. Volokh argues that the Press Clause protects the press only “as a technology”—that it secures only “the right of every person to use communications technology,” and grants no special privileges to the professional or institutional press as such. Skillfully marshaling extensive historical sources, Volokh concludes that the evidence “point[s] powerfully toward the press-as-technology reading” of the Press Clause, “under which all users of mass communications technologies have the same freedom of the press” and journalists qua journalists have no unique privileges. Continue reading "Defending Freedom of the Press as an Institutional Guarantee: A Guide in Dealing With Historical and Jurisprudential Obstacle Courses"
Mar 28, 2012 Solangel MaldonadoJotwellTrusts & Estates
I have never had a pet (yes, very sad), so I must admit that in my Estates & Trusts course, I covered the cases involving gifts to pets with some amusement. After reading Frances Foster’s provocative article, Should Pets Inherit?, I will never teach those cases in quite the same way again. Building on many scholars’ (including her own) critiques of U.S. inheritance law’s focus on relationships based on blood, adoption, or marriage to the exclusion on those based on caregiving and affection, Professor Foster expands the universe of beings who should inherit to include non-human family members—pets.
Professor Foster briefly summarizes the rich literature showing that U.S. inheritance law excludes many people Americans consider nearest and dearest to them, including nonmarital partners, friends, and individuals with whom they share a de facto parent-child relationship. As a result, inheritance law often conflicts with and defeats decedents’ wishes to provide for individuals with whom they shared affectionate and supportive relationships. She points out that the law’s exaltation of family status over affection and support is so entrenched that attempts to give property to persons the law does not consider “family” are deemed “unnatural.” In my opinion, many would find few bequests more “unnatural” than dispositions to a pet, which the law deems to be property and as such, cannot inherit under the common law. As Professor Foster points out, bequests to a pet may be used as evidence of testamentary incapacity. After all, who in their right mind would leave property to a pet? However, Professor Foster persuasively demonstrates that given the vast majority of pet owners’ inclusion of their pets in their definition of family and their desire to provide for their pets after they pass, the law should allow and facilitate inheritance by pets. Continue reading "Protecting the True Objects of Decedent’s Bounty—Pets Included"
Mar 26, 2012 Brooke D. ColemanCourts LawJotwell
David Marcus,
When Rules are Rules: The Federal Rules of Civil Procedure and Institutions in Legal Interpretation,
__ Utah L. Rev. __ (forthcoming), available on
SSRN.
The debate over how best to interpret legal text is not limited to the Constitution and controversial statutes, although the expansive literature about interpretation in those contexts might lead one to think that is the case. There are plenty of other legal texts to argue about, and David Marcus’s article, When Rules are Rules: The Federal Rules of Civil Procedure and Institutions in Legal Interpretation, focuses on none other than the Federal Rules of Civil Procedure. Shocking as it may seem (maybe because we are all kicking ourselves that we did not notice this first), there is not much written about how judges should interpret the Rules. Moreover, recent Supreme Court decisions, namely Bell Atlantic v. Twombly and Ashcroft v. Iqbal, demonstrate that reasonable people can disagree about how best to interpret even the most basic and simply-stated Rules. What’s missing is a unified theory of how judges should interpret the Federal Rules, and Marcus’s article is here to save the day.
Marcus puts forward a theory of rule interpretation that respects the unique nature of how the Federal Rules of Civil Procedure came to be and how they continue to evolve. The old adage of a parent loving each of her children equally—and appreciating their differences—applies here. The rules are one of many “textual” children, and they cannot be interpreted as an agency regulation or a constitutional provision might be. Continue reading "Interpreting the Federal Rules of Civil Procedure"
