Feb 11, 2010 Ron WrightCriminal Law
Ron Wright
Ric Simmons has written an article that makes sense of two long-term trends in the privatizing of criminal justice. He links a growing body of legal scholarship about private policing to an enormous academic literature on restorative justice, and reframes them both as part of a long-term trend toward co-existing public and private systems for delivery of criminal justice.
Simmons begins this enterprise by describing the enormous growth of private law enforcement in the United States over the last few decades. It is an exceptionally timely topic. Much of our criminal procedure framework builds on the assumption that law enforcement is a public function, performed by state actors, but that vision is increasingly removed from reality. By some estimates, private security and investigative workers outnumber public police officers by more than a three-to-one ratio. Simmons capably summarizes here the groundbreaking work of David Sklansky and Elizabeth Joh, who brought these developments to light for the legal academy over the last ten years. Simmons then observes that the relative lack of legal regulations that apply to private police actors may not matter as much as we once thought. Many users of private policing do not bother to invoke the public adjudicative system, so the admissibility of the evidence that private police collect is not relevant in many cases. Continue reading "Why is Criminal Justice Only Partially Privatized?"
Feb 8, 2010 Bridget CrawfordTrusts & Estates
Anne Alstott,
Family Values, Inheritance Law, and Inheritance Taxation,
87 Tax L. Rev. (forthcoming 2009), available at
SSRN.
Bridget Crawford
Now is a good time to die. Congress’s failure to take action on the extension of the estate tax caused it to “expire” on December 31, 2009. This repeal is scheduled to last for only one year, and Congress likely will enact some form of estate tax before then. So only those who die soon will be able to transmit wealth entirely tax-free. In the meantime, questions about the economics, fairness, morality of inheritance taxation–broadly defined–will figure prominently in political and social debates. Anne Alstott’s essay, Family Values, Inheritance Law, and Inheritance Taxation, forthcoming in the Tax Law Review, will help ground these discussions.
Alstott’s argument is that taxing inheritance can be consistent with valuing families; it all depends on what view of the “family” one takes. Alstott begins by locating her work in the academic debate about inheritance tax (the umbrella term she uses to refer to wealth transfer taxation generally, acknowledging that there is no federal inheritance tax per se). She launches her analysis on the springboard of Tom Nagel’s argument that “the right to use one’s resources to benefit one’s family” [1] is at odds with inheritance taxation. Alstott evaluates this claim using three perspectives on the family – she calls them the liberal, conventional, and functional views. She synthesizes these from a careful reading of Jens Beckert’s historical study, Inherited Wealth (2008). Roughly characterized, the liberal view approaches the family as a private sphere within which individuals should have freedom to choose their beneficiaries. The conventional view construes the family as a privileged unit of economic and social organization that transmits identity and values from generation to generation. A functional view emphasizes the family’s socio-economic welfare role–i.e., providing needed financial and other assistance to its members. Continue reading "A Good Time to Die: Family-Based Objections to Inheritance Taxation"
Feb 8, 2010 JotwellJotwell
Today we inaugurate a new Jotwell section on Trusts & Estates, edited by Prof. Bridget J. Crawford of Pace Law School and Prof. William LaPiana of New York Law School. Together they have recruited a great team of Contributing Editors.
This is the first section to join Jotwell since we started publishing in November, but it is only the first of many. Expect Jurisprudence and Work Law soon, with several others already planned to follow in the coming months. Please get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.
Feb 5, 2010 Lisa BressmanAdministrative Law
Philip J. Weiser,
Institutional Design, FCC Reform, and the Hidden Side of the Administrative State, 61
Admin. L. Rev. 675 (2009), available at
BePress and
SSRN.
Every so often, an article captures a persistent problem in a particular field. Phil Weiser has done just that. “In studying the modern administrative state,” Weiser writes, “legal scholars have failed to do their part in examining the questions related to institutional competence and institutional structure that determine whether administrative regulation can be effective.” Weiser, supra, at 676. He focuses on the institutional failings at the Federal Communication Commission (FCC). The situation at the FCC is serious, leading Larry Lessig to recommend that Congress abolish the agency. See id. at 677 (citing Lawrence Lessig, Rebooting the FCC, Newsweek.com, Dec. 23, 2008).
Weiser describes the main failing of the FCC as a tendency “toward ad hoc judgments and away from any principled framework for evaluating alternative courses of action.” See id. at 681. The agency has neither articulated general standards for key issues such as spectrum allocation nor engaged in proactive, strategic planning. To make matters worse, the agency also lacks a capacity for independent research and analysis and relies “’almost exclusively upon information and analysis supplied by’ the parties that appear before it.” See id. at 681-82 (quoting Nicholas Johnson, Towers of Babel: The Chaos in Radio Spectrum Utilization and Allocation, 34 Law & Contemp. Probs. 505, 530 (1969)). As a result, the FCC is easily captured—not so much in the sense that the regulated interests populate its ranks or drive its decisions but in the sense that it is beholden to its own institutional limitations. In Weiser’s words, the agency suffers from “a failure to approach issues strategically, to develop independent solutions, and anticipate issues ahead of particular crises.” See id. at 684. Weiser’s solution is not to abolish the agency but to repair its institutional processes. He has a number of concrete suggestions, among them encouraging strategic agenda setting, better use of notice-and-comment rulemaking, upgraded data collection and dissemination, and increased public participation in decisionmaking. Continue reading "Everything but the Agency"
Jan 28, 2010 Ann BartowTechnology Law
In this article Lauren Gelman discusses the tensions between free speech and privacy concerns on what she calls social networks with “blurry edges,” where information primarily intended for an audience comprised of friends and family members is available for the whole world to access. While these networks facilitate online community building, she says, they also create “an illusion of privacy that the law fails to recognize.” People think they have privacy through obscurity online, so they do not make efforts to fence potential trespassers out of their e-spaces. And they want to be accessible to friendly visitors, so they forgo the virtual gates and vicious dogs.
Gelman illustrates the concept in meet space by analogizing to the white pages of a phone book. Though most people do not want to receive calls from strangers, they prefer to be listed because they want some people to be able to ascertain their phone numbers and call them, some of the time. Online, people post pictures and other information without password protecting it, perhaps believing that people who do not have a wholesome interest in the material will bypass or ignore it. This creates externalities: When the openly available content references or depicts other people, those referenced folks are subject to the same level of exposure, but without having any choice in the matter. The more personal the information posted is, the more vulnerable everyone involved becomes. Continue reading "Bringing Blurry Online Privacy Into Sharp Relief"
Jan 25, 2010 Heather GerkenConstitutional Law
David Schleicher,
Why Is there No Partisan Competition in City Council Elections? The Role of Election Law, 13
J. L. & Pol. 419 (2007).
SSRN Version David Schleicher,
What if Europe Held an Election and No One Cared? (work in progress, available
here)
Two articles by David Schleicher fit nicely into the Jotwell category of “things I like (lots).” Schleicher is an assistant professor at George Mason Law School and a rising star in the field of election law. Both pieces explore what he calls the “mismatch” problem—what happens when we ask voters to perform a constitutional role without the tools they need to do so. The first piece explains why local elections in the U.S. don’t do much to hold local officials accountable. The second piece explains why the European Parliament lacks “any semblance of democratic control” despite regular elections.
How is it possible to have elections without accountability? Schleicher isn’t making any of the by-now-familiar arguments about incumbents’ use of gerrymandering, campaign finance, and other election devices to keep their seats. Instead, he makes a far more provocative claim: election laws interact with the voters’ own shortcomings to produce elections that are, in Schleicher’s view, meaningless. Continue reading "The Mismatch Problem: Why Election Law Isn’t Always Built for the Electorate"
Jan 21, 2010 Jennifer ChaconCriminal Law
Jennifer Chacon
One of the most interesting (and frequently distressing) aspects of teaching and writing about immigration law is the opportunity it affords for studying the interplay between immigration regulations and the criminal law. A number of scholars, including contributing editor Jack Chin, have turned their attention to this interplay before. More recently, in Rethinking Drug Inadmissibility, Nancy Morawetz explores how changes to drug laws and to the inadmissibility standards in the federal immigration law have generated an inflexible, zero-tolerance immigration policy on minor drug use that is in dire need of reexamination.
Because her article highlights the interaction between the criminal law and the immigration regime, it is essential reading for anyone interested in criminal justice. It is also an interesting read for anyone interested in how a few small and relatively thoughtless changes to a complex statutory scheme can have tremendously harsh practical effects. Finally, it is a critical read for everyone who hopes to have a better understanding of upcoming legislative attempts to enact some form of comprehensive immigration reform. As Morawetz urgently notes, “[p]roposals for comprehensive immigration reform in 2007 all included, as a minimum requirement, that the individual be ‘admissible.’” Id. at 182. Thus, absent legislative attention, the sweeping drug inadmissibility rules that Morawetz discusses in this article will likely bar a number of noncitizens with very old and very minor past drug use from normalizing their immigration status, even if the equities of their individual case should dictate a different result. Continue reading "When Criminal and Immigration Law Collide"
Jan 19, 2010 Diane RingTax Law
Alessandro Turina & Nicolo Zingales,
Economic Analysis and Evaluation of “Fair Prices”: Can Antitrust and International Taxation Learn from Each Other? (Comp. Research in Law & Political Economy, Research Paper No. 51/2009, Vol. 5, No. 10, 2009),
available at SSRN.
My teaching and research generally focuses on taxation, especially international tax. However, I have always had an outsider’s fascination with antitrust law and policy. So when I saw a recent article entitled: Economic Analysis and Evaluation of ‘Fair Prices’: Can Antitrust and International Taxation Learn from Each Other? I was intrigued and couldn’t resist. The article, by Alessandro Turina and Nicolo Zingales explores the economic analysis of pricing and comparability in the transfer pricing regime of international tax and in the competition (antitrust) law of excessive and predatory pricing. Their perspective is global as they draw upon U.S. law, E.U. law, OECD practice, and the distinctive outlook of various European countries.
The authors are restrained in their claims and comparison–they acknowledge the differences in purpose and structure between transfer pricing and antitrust laws. But compelling parallels exist that command our attention. Both regimes rely heavily on price-based analysis in which the underlying methodologies struggle to determine “comparability.” Moreover, both strive to find the appropriate balance among legal certainty, administrability, and burden of proof as between business and government. The article provides a baseline introduction to transfer pricing and competition law, thereby allowing the generally informed reader the ability to understand the place of price analysis in each regime and the challenge of determining comparability. Continue reading "The Promise–and Limits–of Economics in Law"
Jan 14, 2010 Robert AhdiehCorporate Law
Eric L. Talley,
On Uncertainty, Ambiguity, and Contractual Conditions,
34 Del. J. Corp. L. 755 (2009),
available at SSRN.
It may be characteristic of the human condition generally, as much as complex transactions particularly, that we don’t sweat the details.
It should come as little surprise, then, that even parties to significant commercial contracts, drafted by able counsel, are often caught on the shoals of boilerplate terms that received something less than their full attention at the time of drafting. In an area of interest to me, for example, sovereign debt contracts drafted over the last century routinely included so-called pari passu clauses–that is, until Peru’s otherwise unremarkable debt restructuring in 1997 was stymied by a New York-based vulture fund that sought full payment on its bonds, based on that theretofore mysterious provision. Continue reading "Unknown Unknowns: Uncertainty, Contracts, and Crisis"
Jan 11, 2010 John FloodLegal Profession
Harry W. Arthurs,
Law and Learning in an Era of Globalization, 10 German Law Journal 629,
available at SSRN.
Law is parochial yet it plays a considerable role in globalization. With few exceptions legal education has continued listing towards the local away from the global. Harry Arthurs, along with Carole Silver and Margaret Thornton, is one of the few scholars to investigate globalization and legal education. Arthurs has spent many years thinking about legal education as befits one who has been both Dean of Osgoode Hall Law School and President of York University in Canada and written one of the major reports on legal education. (See Julian Webb’s reflections on the 1983 “Arthurs’ Report”.)
The starting point is that political economy has profound influences on the shaping of legal education via the research agendas of legal academics, types of jobs available for graduates, regulatory structures created by government, licensing of law schools, etc. As economies and legal markets adapt to globalization so does the knowledge it is perceived to need. Law schools like to promote themselves as global either in their names—Jindal Global Law School—or in their courses and faculty. Continue reading "Can Legal Education Be Globalized?"
