Jun 10, 2024 Adam HirschTrusts & Estates
As Justice Holmes observed, lawmaking consists in drawing lines. But how many lines do we need? Regarding charitable transfers, more than we have—so contends Professor Eric Kades, in a recent article.
Kades begins by observing a fundamental point that we often take for granted: as a legal category, charitability is monolithic. A transfer either is or is not charitable. Hence, an income tax deduction is either available or unavailable, depending on whether the tax commissioner acknowledges an entity or purpose as charitable. Although the exact range of purposes accepted as charitable varies among American states, and is defined independently under federal law for tax purposes, the binary nature of the classification is universal.
Kades argues that this attribute, resulting in either a 100% tax deduction or no deduction, is oversimplified. The deduction should instead fall along a continuum, depending on whether the transfer is “more or less charitable.” (P. 288.) Yet, under current law, “someone donating, say, $10,000 to a local food bank receives no greater deduction than someone donating the same amount to the National Mustard Museum.” (P. 302.) Continue reading "Revisiting the Law of Charitable Transfers"
Jun 7, 2024 Jon ChoiTax Law
John R. Brooks & David Gamage,
The Original Meaning of the Sixteenth Amendment, __
Wash. Univ. L. Rev. __ (forthcoming), available at
SSRN (February 23, 2024).
The Sixteenth Amendment is one of the most thoroughly studied texts in U.S. federal tax law—economists, historians, and luminaries of constitutional law and taxation have all sliced and diced its meaning for more than a century. Making an original discovery about the historical meaning of the Amendment has consequently taken on the dimensions of a mythic quest, like discovering an Eleventh Commandment or the secret dryer compartment containing all those lost socks.
Remarkably, this is exactly what John R. Brooks and David Gamage accomplish in their timely forthcoming article, The Original Meaning of the Sixteenth Amendment. Brooks and Gamage marshal a wide variety of evidence, including new historical evidence on the technical meaning of “income,” to argue that the income taxable without apportionment under the Sixteenth Amendment includes unrealized gains. This has huge implications for policy, given that many current and proposed taxes are imposed on unrealized gains, including some of the most important recommendations to tax the very rich. Brooks and Gamage’s work is especially timely given that the Supreme Court will rule on Moore v. United States in the next month or so, possibly deciding the constitutionality of taxes on unrealized capital gains—although Brooks and Gamage’s contribution goes far beyond the current case, especially if it is decided on narrow grounds. Continue reading "An Original Take on the Original Meaning of the Sixteenth Amendment"
Jun 6, 2024 Anita BernsteinTorts
So many ways to suffer, so few of them redressed by the law of torts. We who teach the course cover a short list. First and foremost, physical impact on the body. Damage to tangible property. Intrusions into land, almost all of them of the visible kind.
Tort puts another set of interests in a secondary or lesser category, recognizing the possibility of real harm caused by faulty conduct but simultaneously blocking recourse with doctrinal hurdles that keep most potential plaintiffs out of court. Consequential economic loss, emotional distress, reputational harm, and interference with a possessor’s enjoyment of land fall into this category of recognized-yet-mostly-unremedied types of injury. In a pair of recent articles, both of them honored by her school as outputs originating in the same project, Hila Keren argues persuasively for an addition to this tranche. Continue reading "Public Humiliation Meets Private Law"
Jun 5, 2024 Scott Skinner-ThompsonTechnology Law
The power of surveillance capitalists to know us, nudge us, and exploit us continues to expand with alacrity despite Europe’s General Data Protection Regulation (GDPR) and state privacy regulations within the United States. Likewise, consequential and concrete privacy harms (such as sexual privacy violations) and, at first glance, more ethereal but also troublesome privacy losses (such as data breaches) remain under-compensated or under-redressed. Why? And what can be done about it? Ignacio Cofone’s incredible new book, The Privacy Fallacy: Harm and Power in the Information Economy, answers those two questions with a healthy dose of realism about the stakes, the need for substantive command-and-control regulation of the information economy, and the imperative of compensatory liability.
In this beautiful and accessible book Cofone explains that, to date, efforts to rein in data exploitation and redress privacy harms have fallen short because of a few underlying fallacies about how information ecosystems work. One of those misconceptions is law’s failure to understand that many egregious privacy harms, such as online sexual harassment, don’t occur because of just one or two bad actors. Rather, the very existence of data ecosystems makes those harms possible in the first instance and then magnifies them. Glossing over the role of the ecosystem (and the companies that create that ecosystem) in perpetuating these privacy harms means that law-reform efforts targeted toward the initial privacy violator under-deter such conduct and stymie efforts to, in effect, put the cat back in the bag. To address the systematic nature of privacy harms, Cofone boldly—but rightly—suggests that modified private causes of action need to be created through statute or tort law to target the myriad corporations that enable such privacy violations. Importantly, Cofone also explains why class actions are an important part of the solution in order to provide for more efficient and comprehensive liability. Continue reading "Getting Real About Protecting Privacy"
Jun 4, 2024 Shelley Ross SaxerProperty
In her important new article, Soil Governance and Private Property, Professor Sarah Fox’s creative writing style captures the importance of soil by referencing the romantic aspects of trees and their connection to people, other trees, and a multitude of living beings including animals, birds, insects, worms, bacteria, and other microorganisms. Professor Fox suggests that local governments approach land-use planning with a goal of balancing soil health and private property ownership in a way that reflects the myriad of interconnections involved in managing and promoting soil health as a common resource.
Her selection of the story of trees to explain the connections between private property uses and environmental impacts on soil is brilliant, compelling, and makes a significant contribution to property, land use, and environmental law. Soil is an important natural resource that has received very little attention in legal scholarship. Legal frameworks have failed to address soil health at all levels of government, perhaps because “we take it for granted” or because it is not as exciting as other natural resources. In her article, Professor Fox identifies avenues of inquiry worthy of intellectual exploration with the goal of shifting the law to recognize soil as a common resource and protect soil health in the face of impacts such as erosion, biodiversity loss, and declining agricultural productivity. Continue reading "Is it a Resource or is it Property? How About Both?"
Jun 3, 2024 Marco JimenezLexRemedies
If there is one article that nearly every legal scholar is familiar with, that article would have to be Guido Calabresi & A. Douglas Melamed’s Property Rules, Liability Rules, and Inalienability: One View of the Cathedral. It was in that Article that the famous distinction between property rules (i.e., entitlements that can only be purchased in voluntary transactions) and liability rules (i.e., entitlements that can be infringed by simply paying the value of the entitlement as determined by a court) was first put forward. This idea has had a tremendous impact both within and outside the legal academy, its framework having been incorporated into numerous judicial opinions. When one thinks about this Article, one tends to think about law and economics, and how courts that have internalized this approach frequently employ such thinking to choose the most efficient rule when deciding how to protect entitlements in important areas of private law like contract, tort, and property law. What one ordinarily does not think about, however, is racial inequality, which is the focus of a new and interesting Article recently published by Yotam Kaplan in the Maryland Law Review.
The main point of Kaplan’s Article is as simple as it is powerful: because judges are tasked with the burden of choosing between protecting a party’s entitlement with a property rule or a liability rule, and because bias inevitably creeps in whenever humans make decisions, a judge’s decision must necessarily be biased as well. In the author’s own words: “Under a property rule, a right holder is allowed to determine the value of their entitlement; under a liability rule, the power to determine the value of the entitlement is taken from the right holder and given to an objective state organ. Once we recognize that state organs are not objective, but racially biased, it is clear that the move from a property rule to a liability rule is not a neutral one.” (Pp. 483-84.) Continue reading "Bias in the Cathedral"
May 31, 2024 William SmileyLegal History
Refugees, it seems, are scary. The movement of people fleeing violence and oppression attracts sympathy, but increasingly also fear. We hear talk of “carnage” and “chaos” at the US border as Central Americans flee political violence; the EU agrees to limit asylum-seekers; the UK plans to deport all asylum-seekers to Rwanda; in last year’s Turkish election, both President Erdoğan and his challenger promised to send home millions of Syrian refugees. Amidst these challenges to the global refugee regime, many turn to its founding documents, dating to the aftermath of World War II. Scholars of humanitarianism suggest the system’s roots lie a quarter-century earlier, in American and Western European responses to the collapse of the Romanov, Habsburg, and Ottoman Empires. In either case, the emergence of a legal regime for managing refugees is seen as driven by western, and particularly Christian, sympathies and solidarities. Vladimir Hamed-Troyansky’s new book challenges that view, arguing that as early as the 1850s, the Ottoman Empire—a state ruled by Muslims and often seen as outside the European world—“created its own nonwestern and nonsecular system of categorizing, sheltering, and resettling refugees.” (P. 3.)
Hamed-Troyansky makes this argument as part of a larger study of the immense migration (over a million people) of North Caucasian Muslims from the Russian Empire to the Ottoman Empire in the late nineteenth century. As the Russians consolidated their control over the Caucasus Mountains, they drove out many of the Muslims who lived there. In particular, the Circassians/Adyghe were extirpated so thoroughly that some have termed it a genocide. Most of these refugees fled to the Ottoman Empire, which responded by creating a legal and bureaucratic system to aid them and resettle them on its lands, from the Balkans to Jordan. Over the following decades, as the Ottoman Empire contracted, the North Caucasians were joined by many more Muslim refugees who fled (or were expelled from) the newly independent states of the Balkans. To tell this story, Hamed-Troyansky relies on a breathtaking diversity and depth of sources: twenty-three archives across ten countries, private papers and letters, and even interviews. He tells stories of imperial politics, local bureaucratic management, urban socioeconomic changes, and family microhistories. Continue reading "Between Asylum and Atrocity"
May 30, 2024 Thomas BustamanteJurisprudence
Some influential philosophers believe that law does not give us any “real” reasons for action. Like games, fashion, and etiquette–we are told–law guides our behavior only in a weak and uninteresting way. It provides “formal,” rather than “robust” reasons for action. Legal philosophers should, therefore, find a better use of their time, by turning their attention to more relevant subjects, like morality and metaethics. This claim is not just a second-order assertion to entertain academics in philosophy seminars, but a consequential practical point. If you accept it, you may think that law possesses neither “practical” nor or “influential” authority, but only, if any, a sort of “theoretical” authority: law sometimes gives us reasons to believe in “the truth (or falsity) of deontic propositions, but it does not give reasons for action.” The only role law can play is an epistemic role: law can point at some action when we do not know exactly what to do. Even in that case, however, it only gives us reasons when we do not feel the need to deliberate carefully or think too hard. The law is given and we think fast when we think about law. The law might help us “do the thinking” when we are lazy or the matter at stake is not serious enough, but it cannot alter the actual balance of reasons. If you face a true ethical challenge or a serious practical dilemma, you’d better turn to morality instead of law.
Some nice books on the rule of law recently resisted these thoughts. It has been argued, for instance, that this mindset does not “take the law seriously” because it neglects a fundamental interpretive dimension of law, and that it fails because it disregards the law’s ethical role in our communal lives. These and other intriguing philosophical works grew under the influence of Jeremy Waldron’s contributions to the rule of law, which are spread over a sea of papers that only a very diligent researcher could recollect. I am happy that he has now published some of these works in a coherent and well-organized collection. Waldron’s scholarship on the rule of law displays even more subtly and depth when these works are read together. Continue reading "Legal Judgment as a Serious Matter"
May 29, 2024 Pamela SamuelsonIntellectual Property Law
Paul R. Gugliuzza & Mark A. Lemley, Myths and Reality of Patent Law at the Supreme Court, 104 B.U. L. Rev. 891 (2024).
Gugliuzza and Lemley have produced an important contribution to the literature about the Supreme Court’s engagement with patent law issues over a forty-year period since 1982. That was the year that the Court of Appeals for the Federal Circuit (CAFC) began having exclusive appellate court jurisdiction over patent cases. Their article considers whether certain tenets of the conventional wisdom about the Supreme Court’s patent cases are myths or reality.
Does the Court distrust the CAFC? Has the Court’s rather large volume of patent cases (62 since 1982) had major impacts on patent law? Does the Office of the Solicitor General (OSG) always get its way in patent cases? Conventional wisdom would answer all three questions in the affirmative. Gugliuzza and Lemley conclude that the conventional wisdom is correct in some respects, but not so much in other respects. Continue reading "Reviewing Four Decades of Supreme Court Patent Decisions"
May 28, 2024 Kevin CopeInternational & Comparative Law
The recent special issue of International Journal of Migration and Border Studies, “Comparative Migration Law: Methods, Debates and New Frontiers,” features a diverse set of perspectives on the study of migration law. This jot specifically covers Daniel Ghezelbash’s excellent contribution to the issue, Legal transfers of migration law: the case for an interdisciplinary approach.
The article argues for a more expansive dialogue between legal scholarship and other disciplines to fully capture the intricacies of contemporary migration policy transfers. As Ghezelbash notes, legal transfers (also known as diffusion, transplants, borrowing, migration, or translation, among other things) involve the movement of a law between countries. The field’s pioneer was Alan Watson; in 1974, he controversially described “legal borrowing” as perhaps the most significant source of legal change, especially in the Western world. Whatever its validity as to other fields, Ghezelbash agrees that migration is a particularly fertile field for legal transfers, for two main reasons: (1) the interconnectedness of migration laws (in that, like trade in goods and services, a migration act necessarily implicates at least two, and usually many more, countries) and (2) the shared constraints faced by states in designing migration laws under international law. Continue reading "Borrowing Immigration Law"
