Nov 1, 2022 Jack BeermannAdministrative Law
Adherents to the unitary executive theory, which posits that the Constitution grants the President complete and absolute control over the execution of the law, claim that their view is required by the text of the Constitution, especially Article II’s vesting clause which proclaims that the “Executive Power shall be vested in a President of the United States of America.” As Justice Scalia put it, “this does not mean some of the executive power, but all of the executive power.” In Scalia’s view, the separation of powers demands that the President must have the power even to prevent the prosecution of Executive Branch officials, including those who have engaged in serious job-related criminal misconduct that threatens to undermine the accountability of the Executive Branch. Adherents to the theory on the Supreme Court may be in the process of dismantling all checks Congress has placed on presidential control over the administration of the law, including, among others, limitations on removal of Officers of the United States, the discretion of agency experts, and the independence of independent agencies.
Even assuming that Justice Scalia’s heavily textualist form of originalism is an appropriate methodology for applying the Constitution, the unitary executive theory has never successfully accounted for what, in light of the theory, must be puzzling constitutional text. Examples include, the provision that grants the President the right to “require the Opinion, in writing, of the principal Officer in each of the executive Department,” the Constitution’s expression of the President’s role in carrying out federal law as a duty (not a power) to “take Care that the Laws be faithfully executed” and the Constitution’s assignment to Congress of the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution…all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” As one of many possible examples of how this language undercuts the absolutist claims underlying the unitary executive theory, if the Constitution already establishes that the President personally possesses all possible executive power, why would we need a clause granting the President the power to compel department heads to answer his queries? Enter Blake Emerson’s excellent article The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller. Continue reading "The Role of Departments in the Design of the Federal Government"
Oct 31, 2022 Nora Freeman EngstromLegal Profession
In Judges and the Deregulation of the Lawyer’s Monopoly, co-authors Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, and Alyx Mark make a surprising discovery, with significant implications for the current debate concerning the delivery of legal services.
To understand their paper—and why it’s so important—a bit of background is necessary.
Right now, across the United States, lawyers’ monopoly over the provision of legal services is getting overdue scrutiny—and, in some states, professional lines are in flux. Arizona, Washington, Minnesota, and Utah have licensed legal technicians, essentially nurse practitioners for law. In New York, a nonprofit provider called Upsolve has filed an innovative and well-coordinated legal challenge to curtail that state’s unauthorized practice of law restriction, insisting that the law, as applied, violates the First Amendment. And, in a number of other states, including California, Colorado, Michigan, and North Carolina, policymakers are exploring whether—and how—to welcome new legal service providers into the fold. Continue reading "Effective Deregulation: A Look Under the Hood of State Civil Courts"
Oct 31, 2022 Henry L. Chambers, Jr.Work Law
In their article Employment Practices Liability Insurance and Ex Post Moral Hazard, Erin Meyers and Joni Hirsch argue employers should not be able to fully avoid employment discrimination liability through employment practices liability insurance (EPLI) when the liability results from employer-facilitated discrimination. The authors suggest full coverage under EPLI triggers ex post moral hazard–“[too little] care in reacting to wrongful employment acts” (P. 973) –and improperly lessens the deterrence employment discrimination liability promises. Their legislative solution would mandate employers pay part of the liability and allow public entities “the power to issue uninsurable fines” (P. 985) for liability stemming from employer-facilitated discrimination. The conditions would not apply to liability for employment discrimination by low-level employees for which the employer is vicariously liable.
The article is fascinating. Though it is as much an insurance article as an employment discrimination article, the definition of employer-facilitated discrimination is at the article’s core. The authors define employer-facilitated discrimination to include discrimination stemming from behavior the employer knew about but declined to address, and discrimination resulting from “a business’s failure to set up a reasonable reporting system for wrongful employment acts.” (Pp. 950-51.) That definition of employer facilitation is reasonable, but will necessarily cause employment-discrimination mavens to ponder if it is over-inclusive or under-inclusive. That is much of the article’s charm. Continue reading "Should An Employer Be Allowed To Fully Insure Against Employment Discrimination It Facilitated?"
Oct 28, 2022 Felix MormannLexEnergy Law
In February of 2021, winter storm Uri wreaked havoc in Texas. Temperatures that would barely raise an eyebrow in the upper Midwest or Northeast caused two in three Texans to lose power, often for days. Water supply systems and other electricity-dependent essential services collapsed in Austin and elsewhere, some taking weeks to come back online. Hundreds died, and the storm’s disruptive impact on the local economy caused billions of dollars in damages. Texas Governor Greg Abbott and other politicians were quick to blame the state’s solar and wind generators for the widespread blackouts. Closer scrutiny, however, soon revealed that outages at fossil-fuel plants, not their renewable counterparts, were the primary cause of cascading blackouts. In fact, local solar and wind generators performed significantly better throughout Uri than the Lone Star State’s natural gas-fired power plants.
In their excellent new article, Grid Reliability Through Clean Energy, professors Alexandra Klass, Joshua Macey, Shelley Welton, and Hannah Wiseman draw on the Texas experience to debunk the common misconception that grid reliability and clean energy are at odds with one another. On the contrary, the authors argue, “the only way to secure a reliable grid under conditions of climate change is to rapidly engage in a clean-energy transition in the electricity sector.” (P. 978.) After all, global warming and other manifestations of our changing climate increase both the frequency and severity of extreme weather events like winter storm Uri. Sure, grid operators could weatherize coal and natural gas-fired power plants as well as their fuel supply to keep them running longer. But to do so would also increase the power sector’s greenhouse gas emissions, exacerbating reliability threats from climate change. Continue reading "The Long and Winding Road to a Cleaner, More Reliable Power Grid"
Oct 28, 2022 Kent D. SchenkelTrusts & Estates
Andrew Granato,
A Matter of High Interest: How a Quiet Change to an Actuarial Assumption Turbocharges the Life Insurance Tax Shelter, 29
Conn. Ins. L. J. __ (forthcoming 2022), available at
SSRN.
Section 101(a)(1) of the Internal Revenue Code (IRC) is pretty straightforward. It excludes life insurance death benefits from the federal income tax. But what is life insurance? The IRC defines “life insurance contract” in § 7702. However, in A Matter of High Interest: How a Quiet Change to an Actuarial Assumption Turbocharges the Life Insurance Tax Shelter, Andrew Granato characterizes that provision as “obscured by layers of mathematics.” Under recent amendments, writes Granato, this “highly technical approach” to the definition of life insurance abuses the § 101 exemption by expanding the definition of life insurance in a manner that effectively subsidizes the wealthy through tax expenditures on their behalf.
Life insurance comes in two basic types. First, there is “term” or pure life insurance. The cost of a term policy is based on the risk taken on by the insurance company that the insured will die within a certain time, triggering the company’s obligation to pay the death benefit to the beneficiary. This type of policy has no cash value because the owner paid only for the death benefit—the insurance company’s promise to take on the risk. At any given time, the policy’s value is the unexpired portion of the premium paid. Continue reading "A Life Insurance Tax Dodge Under Layers of Math"
Oct 27, 2022 Omri Ben-ShaharContracts
Sadie Blanchard,
Nominal Damages As Vindication, __
Geo. Mason L. Rev. __ (forthcoming 2022), available at
SSRN.
Nonlegal sanctions have never enjoyed such glory days. Dare you misbehave in a social or commercial relationship, your misdeeds are likely to be recorded, posted, and eventually aggregated with other feedback by a rating platform. Businesses are graded by their customers on Yelp, landlords and guests review each other on Airbnb, drivers are rated by their auto insurers, and borrowers are scored by credit agencies. These reputations determine people’s access to services, the prices they pay, and the friends they meet.
The sharp teeth of nonlegal sanctions pose a challenge: how to make sure that they are levied when proper, and in the right magnitude? More generally, how should the frequent presence of reputational sanctions and rewards affect the design of legal sanctions, and in particular the damage measures awarded in private law for the breach of contract or the commission of a tort?
In recent years, scholars in law and economics began to develop a theoretical framework for the optimal blend of legal and nonlegal sanctions. Many have noticed that legal sanctions have the potential to trigger informal reputational penalties. In an interesting article, Bob Cooter and Ariel Porat asked how to optimally combine the two. If the wrongdoer already suffered reputational ruin, should this fact be a reason—as they argued—to moderate their legal sanction, for example by reducing the legally-assessed damages? Later, in examining the effect legal sanctions have on informal penalties, Ed Iacobucci usefully distinguished between two types of third party responses: the conscious (and privately costly) propensity to ostracize bad actors who were found to be legally liable, and the self-interested motivation to refrain from dealing with those revealed by the legal sanction to be unattractive or dangerous trading partners. To this literature, Sadie Blanchard recently added a wonderful contribution in Nominal Damages As Vindication, nesting it in a discussion of the law of nominal damages. Continue reading "Bang For The Buck: How To Compensate Without Money"
Oct 27, 2022 A. Michael FroomkinJotwell
Today is Jotwell’s 13th birthday. (Yes, it’s hard to believe, but check the Archives.) We’ll be celebrating this event for the next fortnight by running two posts a day. The second post will run weekdays in the mid-afternoon, around 3pm U.S. East Coast time.
We’ll also be celebrating by having a quiet fund-raiser. Visitors to the site will see a red banner at the bottom of the page about the double-posting, and inviting reader donations. Alas, people who get Jotwell via the RSS feed or by email will be denied that experience, although they will get any extra posts in the sections they signed up for. But there is no reason for the hundreds of people who read us via the RSS feed–or by email–to be left out.
So here’s the pitch: However you read Jotwell, please will you make a small donation to support this journal? All the faculty who write for and edit Jotwell do so for free, but even so, producing the journal is not costless: we need to pay for our server, for our student editors, and for various types of technical and design support, including keeping up with a procession of software updates. This adds up.
We don’t charge for Jotwell and we don’t run any ads, and we would like to keep it that way. If every Jotwell reader donated just $10 a year, we’d cover all of our costs…but alas not everyone is generous.
If you can afford it, please don’t be a free rider. If you like us lots–or even just some–please make a small donation? Of course, if you want to make a large one we would not say no to that either.
In any case, we thank you for reading, and look forward to another year in which we celebrate the best recent scholarship relevant to the law.
Yours sincerely,
A. Michael Froomkin
Jotwell Editor-in-Chief
Oct 27, 2022 Cristina TilleyTorts
Jonathan Cardi & Martha Chamallas,
A Negligence Claim for Rape, _
Texas L. Rev. _ (forthcoming 2023), available at
SSRN.
At the height of the #MeToo era, not a month seemed to pass without tell of bad behavior by a titan of American government, media, or entertainment. The resulting public thirst for contrition gave rise to a very specific oeuvre of male apology.
“I misread things in the moment,” stated one entertainer after learning that a sexual partner had sobbed in her Uber home after their night together. I’ve had “encounters” where I was sort of “navigating and not knowing,” observed another man who learned that his exploration of a female colleague’s breast while she was hosting a television segment had been unwelcome. “I [have] learned…that when you have power over another person, asking them…isn’t a question. It’s a predicament,” said a third, who had undressed in front of fellow professionals in the workplace. Something is going awry in these encounters, where men attuned to their own desires simply do not register that their counterpart is having a different experience, but “learn” the female perspective after the fact. Modern law lacks useful tools to assess this disconnect, and in A Negligence Claim for Rape, W. Jonathan Cardi and Martha Chamallas give us one. (Pp. 3-4.) Continue reading "#NegligenceToo"
Oct 26, 2022 Rebecca CrootofTechnology Law
I always love scholarship that forces me to pause and question my baseline assumptions. And so—as someone who has written of the need to close accountability gaps associated with malicious cyberoperations, IoT devices, and autonomous weapon systems—I was delighted to read John Danaher’s Tragic Choices and the Virtue of Techno-Responsibility Gaps. In this work, Danaher challenges everyone who has ever argued that new technologies problematically undermine traditional accountability structures by quietly observing that these new gaps are…maybe sometimes a good thing?
While Danaher tends to focus more on moral responsibility than legal liability, if you are a techlaw scholar thinking about accountability gaps in any context, add this to your reading list. Danaher writes in a relaxed and engaging style, includes a fantastic literature review of non-legal texts on accountability gaps, and explores a counterintuitive argument—all in a piece that clocks in at a svelte 22 pages of text. (Would that I could accomplish so much, so smoothly, in so few words!) Continue reading "The Argument for Not Closing Accountability Gaps"
Oct 25, 2022 Emily SatterthwaiteTax Law
Are there more self-employed people, or not? IRS data shows a significant increase in the portion of the workforce reporting positive net income from self-employment on their tax returns. It rose by about 20 percent after 2000, peaking in 2014 at just under 12 percent. However, annual labor force surveys suggest that the self-employment rate has been flat since 2000. How can these two results be reconciled? This question motivates a terrific new paper by Andrew Garin, Emilie Jackson, and Dmitri Koustas entitled, New Gig Work or Changes in Reporting? Understanding Self-Employment Trends in Tax Data.
The authors mine IRS and linked Social Security Administration data to explore two hypotheses. The first hypothesis is that gig work is driving the increase in self-employment. The second is that income-based incentives in the tax code are causing individuals to report more self-employment income. The authors quickly reject the first hypothesis. They use a methodology that allows them to identify whether tax-reported earnings are from an online platform economy (OPE) firm or not. They conclude that OPE work does not explain the increase in taxpayer-reported self-employment. (P. 2.) Continue reading "What’s Going On with Self-Employment?"
