Jul 8, 2024 Jodi ShortAdministrative Law
Catherine Baylin Duryea,
Emergency Oversight (May 20, 2024), available at
SSRN.
To ward off the dread that engulfs me when I contemplate the Court’s anti-administrative decisions and agenda, I love to read what amounts to regulatory fan fiction. Once, there was a time when administrative agencies roamed the earth, controlling the U.S. economy in minute detail. This was not just a rhetorical flourish or some feared dystopia lying down the treacherous slippery slope of judicial deference to agencies. It was life. What was that like? How did we survive it? Could it happen again?
Catherine Duryea’s article, Emergency Oversight, delivers these pleasures and more. Duryea analyzes the Emergency Court of Appeals (ECA), a specialized court that operated from 1942-1961 with exclusive jurisdiction to adjudicate challenges to price and rent regulations promulgated by the Office of Price Administration (OPA). OPA administered an extensive system of price and rent control regulations during WWII to thwart wartime inflation and ensure adequate wartime production. These regulations were promulgated under statutory authority delegating to the OPA’s Price Administrator the power to set maximum prices at a level that would “be generally fair and equitable,” giving “due consideration” to prices as they existed during a specified baseline time period. OPA regulations touched every aspect of American life during the war, “from what people ate for breakfast to what clothes they wore” (P. 13), to what rent they could charge for use of a refurbished outhouse. OPA had civil and criminal authority to enforce its price regulations. Continue reading "Through the Looking Glass: A Shared Vision for Economic Regulation"
Jul 5, 2024 Michael C. DuffWork Law
In Adding Insult To Injury: How Kansas’s $155,000 Cap On Permanent Total Disability Benefits Sets Up Injured Kansas Workers For A Lifetime of Hardship, author Gabrielle Stein effectively explodes the fiction that a workers’ compensation “grand bargain” continues to exist in Kansas. Workers injured in the workplace in the United States because of the conduct of their employers—whether negligent or innocent—are limited to state-based statutory benefit recoveries in lieu of tort damages.
The exchange of benefits for damages is often imagined to be a grand bargain in which workers give up full legal damages in exchange for extremely limited statutory workers’ compensation benefits consisting of indemnity wage benefits and payment for medical expenses. This insulates employers from tort liability and is supposed to also inure to the benefit of employees, whose tort claims might be difficult to establish and might otherwise be subject to an “unholy trinity” of affirmative negligence defenses abrogating a negligence claim: contributory negligence, assumption of the risk, and the fellow-servant rule.
Of course, the unholy trinity would be ineffective to bar negligence claims under current law in all but four American states—which have since the mid-twentieth century moved on from “absolute” defenses to a comparative negligence system—so the conceptual underpinnings of workers’ compensation have been seriously undermined (if not rendered irrational). But Ms. Stein additionally shows that any pretense that the workers’ compensation bargain is at least adequate is silly in Kansas given an indemnity cap of $155,000 for a permanent total disability claim. Continue reading "The Enduring Myth of the Adequacy of the Workers’ Compensation “Grand Bargain”"
Jul 4, 2024 Goldburn MaynardTrusts & Estates
Culture plays a major role in estate planning, whether we like it or not. Whereas the law of wills and trusts allows for vast testamentary freedom, millions of Americans, either because they want to avoid talking about death or because they do not have the resources to hire an estate planner, fail to avail themselves of these instruments. Some of the gaps have been filled by other nonprobate transfers like joint bank accounts and life insurance. A simple signature allows one to pass on assets at death using those forms of transfer. But outside of trusts, these nonprobate transfers do not cover all property and do not provide the flexibility of a will. The gap between what the testator wants and what society provides is particularly important if cultural norms prevent the individual from engaging in planning. In a recent article, Shui Sum Lau, a litigation attorney, considers how Asian cultural values can shape end-of-life and estate planning decisions.
According to Lau, Asian cultural values make Asian Americans the ethnic group most likely to support elderly relatives. For example, many Asian-Americans feel compelled to ensure the physical and mental wellbeing of their parents. Because elder care requires time and resources, we can assume that end-of-life planning would at least lower some of the decisionmaking burdens in these delicate circumstances. After all, deciding on life-saving care close to the end of a relative’s life can be extremely stressful for family members. Unfortunately, as Lau underscores, in many Asian cultures, discussions of death are taboo and often avoided, thus leaving children to make uncomfortable decisions on their incapacitated parents’ behalf because they refused to plan in advance. Continue reading "Cultural Lessons for Estate Planners"
Jul 3, 2024 Dorothy BrownTax Law
Professor Richard Winchester’s Essay, A Simple Tax Case Complicated by Race, is a very enlightening and quick read. His Essay details a Tax Court decision about whether a sale of land by a real estate developer is eligible for favorable tax treatment. And while most law students who have taken a single individual income tax class would rightly tell us the answer is no, Professor Winchester takes us through an opinion that finds otherwise—because of race! First, a primer for my non-tax-geek readers.
For most of our modern income tax history, the gain applicable to the sale of capital assets like stock or real estate held by investors, has been eligible for a low, preferential tax rate. Sales of inventory, or property “primarily for sale to customers” on the other hand are taxed at the highest ordinary income tax rates available. Real estate developers therefore are selling property they hold for sale to customers and generally ineligible for the lower, preferential tax rate. Except, Tax Court Judge Withey did not get the memo. Why? Professor Winchester argues that it is because of race. Continue reading "Capital Gains and Race: Through A Different Lens"
Jul 2, 2024 P. T. BabieProperty
In a previous JOT, I wrote that private property is deeply ingrained not only in our liberal world, but also in our DNA. In Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness, Aaron Schwabach provides important evidence of the latter fact, arguing that one finds those biological-behavioral origins in the “innate urge to exclude.” (P. 190.)
While the right to exclude is always found in law, this must be distinguished from our “proprietary instinct: The[]…innate urge to say ‘this thing is mine, and no one can use it unless I let them.’” (P. 191.) Schwabach calls this, simply, “innate property.” (P. 190.) Continue reading "Innate Property—A Behavioral Trap"
Jul 1, 2024 Ezra RosserLexNative Peoples LawPoverty Law
Vanessa Ann Racehorse,
Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, __
Colum. Hum. Rts. L. Rev. __ (forthcoming), available at
SSRN (April 10, 2024).
The life expectancy of Native Americans is almost eleven years less than the average of all races in the United States. (P. 20.) And across countless other metrics—from drug addiction to diabetes—Natives suffer disproportionately high rates of illness and death compared to other Americans. (P. 20.) Despite this, funding for Indian Health Services (IHS) remains below the level of support given to non-Indians and well short of what is needed to provide adequate health care to tribal communities. (P. 19.) Professor Vanessa Ann Racehorse’s article, Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, does a fabulous job describing the linked problems of health disparities and insufficient funding for Native communities, while also offering suggestions on how health outcomes might be improved. But the article’s contributions extend beyond laying a foundation for better understanding tribal health care; Professor Racehorse also shows that when Indian nations assert their powers of self-determination in the health care space, outcomes for tribal members can improve.
Tribal Health Self-Determination is a reminder of the relatively high levels of reservation poverty and the ways that poverty, subordination, and health intersect. As Professor Racehorse highlights, Indian health is made worse by past injustices such as forced sterilization that contribute to historical trauma. (Pp. 11-12.) But health disparities are not inevitable. Under international law, tribal members have a right to the highest attainable standard of health. (Pp. 34-39.) Moreover, tribal takeover of IHS facilities can lead to better health outcomes through culturally competent care and local accountability. (Pp. 40-58.) Under-funding remains a challenge, but Professor Racehorse’s article provides a strong argument for supporting tribal assertions of authority over facilities that were previously run by the federal government. Continue reading "Improving Health Services for Tribal Communities"
Jun 28, 2024 Nora Freeman EngstromLegal Profession
In Ethics, Lawyering, and Regulation in a Time of Great Change: Field Notes from the (R)evolution, Lucian Pera depicts a profession caught in a storm of transformation, both driven by—and driving—the “twin factors” of economic and regulatory change. (P. 802.) In the midst of this rapidly shifting environment, and as some states (most notably, Utah and Arizona) relax their legal practice regulations while most others cling to the traditional rules, the two modes of regulation will invariably collide. In a timely and accessible piece, Pera maps this collision, unearths under-explored complexities, and offers tentative thoughts on a possible path forward.
At the center of Pera’s contribution is the alternative business structure (ABS), variously called nonlawyer ownership (NLO), corporate law practice, or multidisciplinary practice (MDP). Whatever term or abbreviation is used to describe it, in this arrangement, a nonlawyer-owned or nonlawyer-controlled entity offers legal services to consumers or customers. This form of practice flourished in the 1920s in the United States (until it was snuffed out by the bar), and it has been around for a while in the U.K. and Australia. But it is viewed skeptically (to put it mildly) in most states. Continue reading "When Worlds Collide: Mapping the Collision Between Lawyer Regulatory Regimes"
Jun 27, 2024 Reuel SchillerLegal History
Here’s a narrative jewel from Margot Canaday’s stunning new book Queer Career: Sexuality and Work in Modern America: Canaday is interviewing a queer woman who drove a cab in Buffalo during the years following World War II. Apparently, taxi driving was a common profession for lesbians at the time. In fact, the cabbie believed that half the drivers in the company were queer. “The owner liked to hire lesbians—it was a transient job, but lesbians tended to stay. ‘Got any friends?’ he would ask. ‘Send them in.’” It was the kind of job, the driver told Canaday, that allowed her to live life the way she wanted. The informal nature of the work gave her the flexibility to socialize in gay spaces and to present herself authentically without fear of reprisal at work. During her years as a driver “she wore pants, a shirt, and a binder to work.” (P. 83.)
If you’re anything like me—a reader familiar with the standard narrative of the development of postwar liberalism—this story is disorienting. Driving a cab in postwar Buffalo was a congenial profession for lesbians? So congenial that half the employees were queer? So congenial that the boss actively tried to recruit lesbian drivers? So congenial that drivers felt comfortable being out at work? Wasn’t this the era of the Lavender Scare, when rampant homophobia and government persecution drove queer Americans out of the workforce and deep into the closet? This story is just one of many convincing, counterintuitive pieces of evidence that substantiate Canaday’s central claim: When you look at the world of “queer careers” through the lens of the Lavender Scare, you don’t see the employment experiences of most gay and lesbian workers. In fact, when you closely examine these experiences, as Canaday has done with an unprecedented degree of detail, you see a very different story. You see that for many gay and lesbian workers, the workplace became less hospitable as the twentieth century wore on. Continue reading "Liberation Without Law: Queer Workers and the Limits of Legal Liberalism"
Jun 26, 2024 Bill WatsonJurisprudence
Francisco Javier Urbina,
Reasons for Interpretation (Feb. 9, 2024), available at
SSRN.
Debates over legal interpretation—like those between originalists and living constitutionalists or between textualists and purposivists—are intractable and long-running, with no end in sight. A recent and welcome development in these debates has been increased attention to the background question of how to choose an interpretive method. What kinds of facts or reasons count in favor of any interpretive method? Can a better understanding of the nature of law, language, or interpretation answer which interpretive method is correct or best? Can facts about a community’s law or legal practices do so? Or must we look instead to normative reasons, i.e., to moral, political, or other reasons that favor acting in some way?
Francisco Urbina’s article, Reasons for Interpretation adds to this growing literature on how to choose an interpretive method. His answer is simple: only normative reasons can ultimately justify an interpretive method. Defending an interpretive method therefore requires reference to things like which method best satisfies deontic constraints, advances democracy or the rule of law, or promotes other values. On the flip side, one cannot defend an interpretive method simply by appealing to facts about the nature of law, language, or interpretation, nor can one defend such a method simply by appealing to facts about our law or legal practices. These facts are relevant to interpretive choices only if and insofar as normative reasons make them so. Continue reading "How to Choose an Interpretive Method"
Jun 25, 2024 Verity WinshipInternational & Comparative Law
The US produces technology and the EU produces rules. This “division of labor” was encapsulated in this exchange: On the acquisition of then-Twitter, Elon Musk tweeted “the bird is freed.” An EU commissioner almost immediately responded (also on Twitter) that “In Europe, the bird will fly by our rules.” Anu Bradford’s article, Europe’s Digital Constitution, opens with this collision between US tech entrepreneurs and EU regulators. The specific example is in service of a much grander vision. Bradford argues that European tech regulation can be understood as a “constitution” that expresses a normative commitment to “fundamental rights,” democracy, and “fairness and distribution” (P. 10.)
Bradford’s super-power as a scholar is the ability to take something that has been recognized and analyzed in piecemeal form, and then to enlarge the framework and fundamentally shift how we talk about the area. Her foundational earlier work provided a way to articulate an unformed instinct and collection of examples into the “Brussels Effect,” which identified the global reach of EU law (elaborated in her 2015 article and 2020 book). Continue reading "Techno-Rights"
