Jun 21, 2010 Pat GudridgeConstitutional Law
Robert F. Williams, The Law of American State Constitutions (Oxford University Press: 2009).
Robert Williams, who teaches at the Rutgers-Camden Law School, is a long-time and very distinguished laborer in the field of state constitutional law – really, both a pioneer and a leader. His book looks, at first glance, to be a grand summing up, an attempt at magisterial synthesis. But it is in fact much better than that.
The table of contents tells the story. Continue reading "There There? Does State Constitutional Law Exist?"
Jun 17, 2010 Marcia L. McCormickWork Law
Discrimination in employment on the basis of race, color, national origin, sex, and religion has been against the law since 1964, and while norms have certainly changed in that time, the number of allegations of discrimination in the workplace grows every year, suggesting that something is still not right. Figuring out what is a messy question, which is why studies of enforcement and interpretations of Title VII are so welcome to those of us interested in this area.
Margaret Lemos’s current article is no exception. Although the paper focuses mostly on an important gap in the administrative law literature—that is, even though there has been much written on why Congress delegates and how it chooses to delegate at all, very little has been written on how Congress chooses what institution to delegate power to and how to shape that delegation—it also reveals important data about enforcing Title VII, in large part because that statute provides her case study. Moreover, to the extent that so much of the employment discrimination literature focuses on issues concerning the substance of the law or lack thereof, a study of who is making that law fills an important gap in this literature as well. Continue reading "Enforcement and Institutions"
Jun 14, 2010 Carole SilverLegal Profession
In the 1970s, during the rise of what was then known as the women’s movement, one popular T-shirt proclaimed: “I haven’t come a long way, and I’m not a baby.” It was a clever riposte to a high-profile cigarette ad campaign of the era that linked smoking and feminism. That T-shirt slogan is one that female lawyers at large firms today might want to adopt as their own.
In his new article, Eli Wald sheds light on why women in BigLaw have not yet come “a long way.” He explains that large law firms have adopted a professional ideology of hypercompetitiveness, which has transformed the firms into sites where the opportunity to pursue a balanced life is, by definition, completely absent. This is “bad news for women lawyers and for the prospect of greater gender equality in the legal profession.” (P. 2287). In fact, it’s bad news for everyone: according to Joyce Sterling and Nancy Reichman, in the same symposium, “the long hours are taking their toll on male associates as well,” which is confirmed also by Dau-Schmidt et al in the Michigan alumni study. Continue reading "Women and BigLaw: a New Look at the Problem"
Jun 10, 2010 Margareth EtienneCriminal Law
Larry Alexander and Kimberly Kessler Ferzan (with Stephen Morse),
Crime and Culpability, Cambridge University Press (2009).
In their important book on criminal law theory, Crime and Culpability, authors Larry Alexander, Kim Ferzan, and Stephen Morse, vigorously and deftly defend the view that criminal liability should turn solely on moral culpability. They argue that an actor’s moral culpability is based on her acts and the moral significance of her intent to commit certain acts with the knowledge that those acts unleash risks. As the authors divorce “resulting harm” from the culpability equation, they provide a useful glimpse of a criminal law system focused squarely on the actor’s choice to engage in risky acts. Their theory of culpability is not novel but their full sweep application of it here paints quite a picture—one with unusual results, as noted below. This book is both thought-provoking and thoughtfully written. It is hard to put down, at least figuratively. Like any worthwhile read, aspects of the authors’ arguments continue to haunt its reader long after the arguments seemed to have been put to rest.
Alexander, Ferzan and Morse begin their book with the odd concession that “criminal law’s purpose is the prevention of harm” and that the norms of conduct embodied in criminal law “exist for that purpose.” (P.17.) This is odd only because as retributivists, they disavow the importance of harm in assessing criminal culpability. Their “choice” theory of criminal law—a theory finding culpability in the choices we make that unjustly jeopardize the interests of others rather than in the results of those choices—leads to some curious results. Perhaps most notably, they argue for the elimination of negligent crimes on the ground that those offenses do not demonstrate an insufficient concern to the protected interests of others. They would also eliminate the line between offenses and defenses—that is the distinction between the prima facie elements of a charge and its exceptions or defeaters. In addition, they seek to do away with incomplete attempts (and the attendant substantial step formulations), as well as complicity, contending that only the unjustifiable risks that the actor himself unleashes beyond his control count toward culpability. As if all this weren’t sufficiently radical, the authors also propose designing a criminal code with no list of crimes or wrongs (e.g., rape, murder, robbery), but rather one where a finding of criminality rests on a generic finding of unjustifiable risk creation. In essence, there is so much fodder for comment and discussion in Crime and Culpability that one hardly knows where to begin. Continue reading "An Intriguing Thought Experiment on Culpability"
Jun 7, 2010 Connie RosatiJurisprudence
Frederick Schauer,
Was Austin Right After All? On the Role of Sanctions in a Theory of Law, 23
Ratio Juris, 1 (2010), available at
SSRN, and Frederick Schauer,
Positivism Before Hart, in M.D.A. Freeman, ed.,
John Austin and His Legacy, available at
SSRN.
Survey courses in analytical legal philosophy commonly include brief excerpts from the jurisprudential writings of Jeremy Bentham and John Austin. After a cursory treatment of their work, with emphasis on the “command theory” of law, the focus shifts to H.L.A. Hart’s famous critique of Austin and then to Hart’s own influential version of legal positivism. The prevailing view has long been that Hart’s critique of Austin was decisive and that Hart’s own theory of law expresses legal positivism’s “core commitments.” Both bits of the conventional wisdom come under scrutiny in a pair of provocative recent articles by Frederick Schauer.
In “Was Austin Right After All? On the Role of Sanctions in a Theory of Law,” Schauer explains why, contrary to the prevailing view, Austin’s account of law may have been more nearly accurate than Hart’s. He acknowledges that on many points, Hart identified important deficiencies of Austin’s account. Austin focused, for example, on duty-imposing rules, neglecting the critical and sometimes constitutive role of the power-conferring rules so pervasive in advanced legal systems. And his notion of the sovereign oversimplified legal systems in multiple ways by essentially treating all of law on the model of an absolute monarch’s imposition of rules on obedient subjects. Continue reading "Rethinking Legal Postivism"
Jun 4, 2010 Paula MonopoliTrusts & Estates
Daphna Hacker,
The Gendered Dimensions of Inheritance: Empirical Food for Legal Thought, 7
J. of Empirical Studies (forthcoming 2010), available at
SSRN.
There is a distinct lack of empirical research in the area of inheritance law. Domestically, inheritance law is the province of fifty different states. Thus, conducting an empirical study of testamentary patterns is a painstaking process that requires fieldwork in multiple probate courts, often consisting of a tedious review of individual probate court case files or records. And among the studies that have been done over the years, few have focused on the role of gender in our field. That gap is the focus on Daphna Hacker’s new article, The Gendered Dimensions of Inheritance: Empirical Food for Legal Thought, in the Journal of Empirical Legal Studies, a peer-edited, peer-refereed, interdisciplinary journal. Hacker is an Assistant Professor at the Buchman Faculty of Law, Tel Aviv University where she is also a faculty member in the NCJW Women and Gender Studies Program.
In her article, Hacker identifies four historical trends which have created the conditions under which women may exercise broader freedom to bequeath property at death. These include laws which allowed women to own property in their own right, the abolition of rules that prevented women from inheriting property, the enactment of laws allowing women to be full participants in the labor force and the trend toward recognition of marital property rights in both spouses. After identifying these trends, Hacker poses the following questions which empirical research could help us answer if it were more widely conducted: Do women take full advantage of this power to bequeath property? Do they use this power to bequeath wealth as they wish? Are there gendered dimensions to intestate succession? And are there differences between the structure and content of men and women’s wills? Continue reading "Testation, Empiricism and Gender Equality"
Jun 2, 2010 Neil H. BuchananTax Law
Anyone who wants to understand fiscal policy in the United States for the next fifty years will need to understand health care costs. There are many important issues in tax policy – the income/consumption debate, whether and how to tax wealth (especially at death), how to deal with transfer-pricing problems, when to tax capital gains, how to handle tax protesters, and so on – but the single issue that is going to drive tax policy is health care inflation.
Scary proclamations that the U.S. faces a “long-term fiscal crisis” are actually statements that health care costs could ruin the economy. If health care costs stop increasing – either by government action or because of some “natural” maturation process in the medical-industrial complex – then there is no long-term fiscal crisis. The so-called Social Security crisis is an over-hyped non-event, as I have argued elsewhere, and as even the most serious budget hawks will admit. Nothing else in the budget (certainly not “waste, fraud, and abuse”) even comes close to justifying alarm about the long-term need to raise taxes. It is all about health care. Continue reading "Health Care Costs and Fiscal Infirmity"
May 28, 2010 Dotan OliarIntellectual Property Law
William Patry,
Moral Panics and the Copyright Wars (Oxford University Press, 2009) (summary at
OUP; related
blog).
Bill Patry’s “Moral Panics and the Copyright Wars” is the latest word on the way in which copyright law has responded to technological change. In eclectic and humorous prose, drawing on history, linguistics, philosophy, behavioral economics and the Bible, among other sources, Patry provides harsh criticism of the ways in which Congress and the copyright system have responded to disruptive technologies such as the VCR and file-sharing networks – and by “responded”, Party means did whatever the content industries demanded.
The book sets out the well-formed perspective of an important figure within the copyright cognoscenti. For almost three decades now, Patry has engaged with the copyright system in various roles, including a practitioner in private practice, full-time academic, author of a multi-volume copyright law treatise, copyright law blogger, copyright advisor to the House of Representatives and policy advisor to the Copyright Office. His intimate familiarity with the copyright system makes the pessimistic tone of his book especially notable. Continue reading "Bill Patry’s War on Copyright Rhetoric"
May 26, 2010 Matt BodieWork Law
In “The Non-Option,” David Walker expertly dissects one of the puzzles of employee stock option compensation: why stock options are always granted at the then-current market price for the stock, resulting in “at-the-money” options. If parties could tailor their compensation packages to individual needs and desires, one would expect that at least some firms would agree to give their employees stock options that had an exercise price lower than market price (known as “in-the money” options). Indeed, the desire for in-the-money options was so strong that hundreds of companies essentially created them through illegal option backdating. Recent changes to accounting rules were thought to have dampened the disparity in regulatory treatment between at-the-money and in-the-money options. Walker’s article, however, explains how tax law has stepped in to continue this familiar bifurcation in treatment.
The narrative of the rise and fall of stock options begins in the early 1990s. In order to encourage shareholder primacy and efficient corporate management, scholars and policymakers set upon a course of promoting incentive-based executive compensation. This programme found its instantiation in IRC § 162(m), which allowed companies to take unlimited tax deductions for compensation earned “solely on account of the attainment of one or more performance goals.” Since the deduction for other pay (such as salary) was limited to $1 million, this gave substantial corporate tax savings to performance-based pay. Stock options became a natural way to provide this kind of pay. Longstanding accounting rules took a “face-value” approach to the valuation of options because of the difficulty in calculating their value. Under these rules, a company incurred no expense (for accounting purposes) when issuing at-the-money options; the options only needed to be expensed when the employee exercised them. As a result, “costless” and deductible stock options fueled the Internet boom and the late-1990s stock surge. However, increasing pressure to account for the real value of options led the Financial Accounting Standards Board (FASB) to change its rules in 2005. FASB now requires that at-the-money options be expensed. This change, along with the stock market bust in the early 2000s, cooled companies on options and led to more of a mix between options and restricted stock (as Walker describes in this article). Continue reading "Deconstructing Stock Options"
May 24, 2010 Elizabeth JohCriminal Law
Hear the word “banishment,” and the image that comes to mind will likely hail from an earlier time. Think Anne Hutchinson’s expulsion from the Massachusetts Bay Colony in the seventeenth century, or the transportation of British and Irish convicts to Australia in the nineteenth century. Banishment went the way of the rack and screw, so the thinking goes. Instead, the predominant form of modern punishment is a form of confinement: incarceration. If modern punishment is incarceration, and the criminal justice system its primary source, then anyone interested in modern punishment need look no further.
One of the chief virtues of a sociological analysis of law is that it loosens the grip of rigid thinking like this, particularly with respect to emerging developments that don’t fit into existing categories of scholarly attention. This is the goal of Katherine Beckett and Steve Herbert’s Penal Boundaries, Banishment and the Expansion of Punishment, and they’ve achieved it in such a way that makes it a compelling read for scholars and teachers of criminal law. Continue reading "The Return of Banishment: Punishment and Policing"
