Aug 22, 2022 JotwellJotwell
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Aug 19, 2022 Aditi BagchiContracts
Contract scholars have offered competing accounts of the contractual relationship. In one space, scholars disagree about what it means for contract to be relational. How does the legal agreement relate to any background understandings? To what extent do parties incorporate community norms or trade practices into their agreements? In another scholarly space, scholars disagree about the best way to characterize what is going on in contract at a more basic level. Is contract a species of ordinary promise with the full weight of the moral practice, a collaboration between the parties that serves shared ends, or a formal exchange that is an alternative to more personal relationships (or some combination thereof)?
Daniel Markovits used the literature on shared intention and cooperation in his article, Contract and Collaboration. He proposed that “parties to contracts share ends in the contracts, and treat each other as ends through the contracts, even when the contracts involve nothing more than self-interested exchange.” He argued that contracts are joint intentional activity but not shared cooperative activity, because parties are not ordinarily presumed willing to help each other out without compensation. Still, the element of promise, in Markovits’ view, adds something further: Each party “adopts the success of certain intentions of the other party as her own ends” and “give[s] the other authority over her intentions.” He calls this collaboration. Continue reading "Constraint without Closeness: A New Picture of Cooperation"
Aug 18, 2022 Ilya SominConstitutional Law
During the Trump Administration, progressives often found themselves resisting administration initiatives by appealing to constitutional principles traditionally associated with conservatives and libertarians: federalism limits on “commandeering” of state and local governments, separation-of-powers constraints on federal spending and regulation, and traditional civil libertarian approaches to freedom of speech that have come under increasing disfavor on the left.
In his compelling recent book Principles Matter, legal scholar Carlos Ball argues that progressives should stick to these ideas in the future as a matter of principle, not just as temporary litigation strategies deployed against Trump. He makes a strong case that, in some ways, could be even stronger and more far-reaching. Continue reading "Lessons from Progressives’ Use of “Conservative” Constitutional Principles to Battle Trump"
Aug 17, 2022 Wendy WagnerAdministrative Law
Daniel Walters,
The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State, __
Yale L. J. __, (forthcoming 2023), available at
SSRN.
What are the key ingredients for a more democratically-grounded administrative state? The answers vary, but most scholars advocate for some type of agency decision-making that resolves Congress’ mandates expeditiously, while also providing “reasons” for those decisions that draw on the best scientific advice, solicit views from all affected groups, and follow accountable procedures. Whatever specific theory one adopts for the “democracy question,” (P. 5) however, most scholars seem to agree that the end goal for agencies is to resolve an issue and then move on.
Daniel Walters turns that conventional thinking on its head in his provocative piece forthcoming in the Yale Law Journal, The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State. A primary goal for administrative decision-making, Walters argues, is not to reach closure on the issues agencies are asked to resolve, but rather the opposite. Agencies should strive to nurture and maintain deliberation and even disagreement, without worrying so much about whether there is a clear path out of the conflict. Continue reading "Embracing Conflict and Instability: A New Theory for the Administrative State"
Aug 16, 2022 Aliza ShatzmanWork Law
I read Professor Gilat Bachar’s excellent article, The Psychology of Secret Settlements, when I was wrapping up my own settlement negotiations and finishing a law journal article about my experience with harassment and retaliation by a former supervisor. While I was contemplating whether to sign a settlement agreement, I searched for research about complainants’ considerations and public perception about confidentiality agreements. Professor Bachar’s research found that both the severity of the wrongdoer’s misconduct and the victim’s financial status impact public support for Non-Disclosure Agreements (“NDAs” or “secret settlements”). Specifically, when the misconduct is more severe, and when the victim is more financially secure, the public opposes the use of NDAs; whereas when the misconduct is less severe, and when the victim is less financially secure, the public supports the use of NDAs. This public support, Professor Bachar argues, is important. If the public broadly endorses “sunlight laws” (laws limiting or altogether banning NDAs), these policies will be more effective, because less oversight and enforcement will be necessary. Professor Bachar’s empirical findings make important contributions in the area of employment litigation at a time when more states are enacting laws to restrict employers’ use of NDAs in employment discrimination cases.
In the #MeToo era, fifteen states have passed laws restricting or prohibiting the use of NDAs, either as a condition of employment or as part of a settlement agreement. However, as Professor Bachar argues, there are circumstances in which not just employers, but also mistreated employees, benefit from NDAs. Not only can victims potentially be “made whole” through financial settlements, but they may also seek confidentiality in order to avoid unwanted public attention and “victim blaming.” If one goal of the #MeToo movement, and the subsequent push to restrict the use of NDAs, is to affirm survivors, Professor Bachar asks, shouldn’t we respect their right to privacy, and support their desire to move on with their lives? Perhaps the obligation to blow the whistle on misconduct and to publicly identify harassers should not fall on victims. By restricting employers’ ability to trade money for silence, Professor Bachar argues, we may unintentionally disadvantage financially insecure victims who cannot afford to invest time and money in employment litigation. Continue reading "Will NDAs Survive the #MeToo Era—and Does the Public Want Them To?"
Aug 15, 2022 Goldburn MaynardTrusts & Estates
Jonathan G. Blattmachr, Bridget J. Crawford & Mitchell M. Gans,
Estate and Gift Tax Valuation of Cannabis Business Interests, 16
Trusts & Estates 22 (2022), available at
SSRN.
Valuation, a process considered both a science and an art, often lies at the heart of estate and gift tax planning. In the course of settling large estates, the size and appropriateness of valuation discounts are common sources of disagreement between taxpayers and the IRS. To this already tricky terrain, in Estate and Gift Tax Valuation of Cannabis Business Interests, three estate tax experts, Jonathan G. Blattmachr, Bridget J. Crawford, and Mitchell M. Gans, add another complication: cannabis. That is, how should cannabis business interests be valued for gift and estate tax purposes? Since the ownership of such a business is illegal under federal law but legal in over 30 states, what are taxpayers to do? These questions are both timely and cry out for guidance from the IRS.
Tax law has a long history of considering the treatment of illegal income. If it were excluded from gross income, thieves and law breakers would have an unfair advantage over law-abiding taxpayers. Thus, inclusion seems necessary to avoid the absurdity of a tax code that favors illegality. As early as the 1920s, it appeared settled that gains from an illegal business could be taxed, but questions remained over embezzlement. See United States v. Sullivan, 274 U.S. 259 (1927). In the 1940s, the Supreme Court held that embezzled funds were not gross income because the embezzler had an obligation to repay, much like a debtor. See Commissioner v. Wilcox, 327 U.S. 404 (1946). But the Court reversed itself 15 years later in James v. United States, 366 U.S 213 (1961). Even with this certainty, questions have arisen at the margins in trying to distinguish the tax treatment of swindling gains from legitimate loans that sour into bad debt. See, e.g., Kreimer v. Commissioner, T.C. Memo 1983-672. Continue reading "Flying Blind: Planning for Death when Holding Illegal Assets"
Aug 12, 2022 Ellen BublickTorts
Leslie Kendrick,
The Perils and Promise of Public Nuisance, _
Yale L. J. _ (forthcoming 2023), available at
SSRN.
On its face, there is a certain hypocrisy to the fact that governments permitted private parties to distribute massive amounts of opioids, stood on the sidelines as overuse and misuse created a deadly toll, and, only after the fact, sued for damages through torts like public nuisance. Why is it that after state legislatures fail to prevent public harms, state attorneys general can swoop in and collect big dollars on legal claims for harms done to the public? And why do companies, through settlements, accede to attorneys generals’ demands?
In her thoughtful article, The Perils and Promise of Public Nuisance, Professor Leslie Kendrick explores public nuisance claims—claims for unreasonable interference with a right common to the general public. Kendrick pays particular attention to public nuisance actions in the opioid litigation. Kendrick identifies three main critiques of the public nuisance doctrine and then proceeds to dismantle each one. To traditionalists, who suggest that the public nuisance tort has extremely narrow contours, Kendrick outlines the robust history and scope of the tort, invoking no less than Blackstone, to show that the ancient tort was not so limited. Kendrick is undoubtedly right in this critique, as is evident from even a quick perusal of early torts treatises in the United States as well. Continue reading "When Regulation Fails?: Public Nuisance Liability as Fallback Option or Policy Plan"
Aug 11, 2022 Natalie RamTechnology Law
American law typically treats privacy and its associated rights as atomistic, individual, and personal—even though in many instances, that privacy is actually relational and interdependent in nature. In their seminal article on The Right to Privacy, for instance, Samuel Warren and Louis Brandeis described privacy as a “right to be let alone.” Doctrines of informed consent are generally concerned with “respect[ing] individual autonomy,” even as the information disclosed or withheld by that consent may implicate the privacy of others. Similarly, consumer genetics platforms seek authorization from a single individual before processing or uploading a genetic profile, even though law enforcement now routinely searches those profiles to identify distant relatives who may have committed prior criminal acts.
In their article, Privacy Dependencies, Solon Barocas and Karen Levy move beyond the observation that privacy is relational to provide a typology of the “varied ways in which one person’s privacy is implicated by information others reveal.” They identify three broad types of privacy dependencies: those based on our social or other ties (tie-based dependencies), those drawn from our similarities to others (similarity-based dependencies), and those revealed by our differences from others (difference-based dependencies). While social norms or legal obligations may serve to discipline some of these privacy dependencies, they will be inapplicable or inapposite for many others. Barocas and Levy masterfully survey the wide range of normative values and diverse areas of law that may be affected by privacy dependencies. Taking genetic data as a case study, Barocas and Levy then demonstrate how each form of privacy dependency can arise in this context—and how each has been exploited in criminal investigations. They conclude that a greater attentiveness to privacy dependencies, and when and how they arise, can inform better policymaking and give us greater purchase on the values that privacy serves. Continue reading "Privacy Depends"
Aug 10, 2022 Daniel ShaviroTax Law
As the saying ought to go, those who forget history are doomed to miss out on a lot of great stories. In Rebellions, Rascals, and Revenue: Tax Follies and Wisdom Through the Ages, Michael Keen and Joel Slemrod do their formidable best to save us from this dire fate. They also amply fulfill their aim of proving the truth of their opening quotation, from H.L. Mencken, to the effect that taxation is not just “eternally lively” but of greater interest than “either smallpox or golf.”
Keen and Slemrod are also so impressively comprehensive in their self-set task of combing thousands of years of history, across multiple continents, for enjoyable or illuminating tax anecdotes that I started to take it as a challenge. I read a lot of history books on the side. So, could I think of stories worth including that they had left out? Continue reading "Tell Me a Tax Story"
Aug 9, 2022 Gregory M. SteinProperty
Zoning is under attack from all parts of the political spectrum. Those on the right have long decried zoning, arguing that land use matters are better left to private actors who can regulate without government intervention by using covenants and servitudes. Those on the left have more recently come to recognize that zoning has been used to segregate populations along racial and economic lines. What does this widespread criticism mean for the future of zoning?
Professor Michael Alan Wolf argues in his recent article, Zoning Reformed, that zoning is too entrenched to be abolished but that it needs to be reconstituted for its second century. In particular, zoning laws need to be reformed to address three contemporary challenges: climate change, pandemic resiliency, and social justice.
Professor Wolf does not suggest that localities should abolish zoning; rather, he is worried about inertia and inaction. He writes that “to do nothing to adapt zoning and other forms of land use regulation to the stark current and anticipated realities would be an abdication of responsibility, much like waiting for COVID-19 suddenly to disappear.” (P. 177.) Continue reading "Reforming Zoning for its Second Century"
