Jotwell

Recovering Forgotten Struggles Over the Constitutional Meaning of Equality

October 6th, 2016 | Helen Norton | Constitutional Law

Katie Eyer, Ideological Drift and the Forgotten History of Intent, 51 Harv. C.R.-C.L. L. Rev. 1 (2016), available at SSRN.

Helen Norton

Legal history can help us overcome the distortions of time and distance that too often obscure our understanding of struggles both past and present. Katie Eyer’s Ideological Drift and the Forgotten History of Intent exemplifies this kind of legal history. Through painstaking analysis of a century of equal protection decisions by the Supreme Court, she seeks to explain a “perplexing feature of the Court’s early 1970s jurisprudence: the Court’s race liberals’ failure to pursue effects-based approaches to Equal Protection liability at a time when such approaches were gaining credence elsewhere.”

In Washington v. Davis, 426 U.S. 229 (1976), for example, the Court held that the Constitution does not forbid the government’s facially neutral actions that create racial disparities, even if such disparities have the effect of reinforcing traditional racial hierarchies. Rejecting a challenge to the District of Columbia’s examination for police officers that had the effect of disproportionately excluding African-American applicants, the Court held that the equal protection clause addresses only intentionally discriminatory government actions. No member of the Court—including Justices Brennan and Marshall—dissented from this constitutional holding. Continue reading "Recovering Forgotten Struggles Over the Constitutional Meaning of Equality"

Chevron’s Origin Story

October 5th, 2016 | Christopher Walker | Administrative Law

Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. (forthcoming 2017), available at SSRN.

Christopher Walker

In his concurrence in Perez v. Mortgage Bankers, Justice Scalia reiterated his historical justification for Chevron deference (first articulated in his Mead dissent): “the rule of Chevron, if it did not comport with the [Administrative Procedure Act], at least was in conformity with the long history of judicial review of executive action, where ‘[s]tatutory ambiguities . . . were left to reasonable resolution by the Executive.’” In a must-read article forthcoming in the Yale Law Journal, Aditya Bamzai casts serious doubt on Justice Scalia’s (and many others’) understanding of Chevron’s origin story.¹.

There is so much to like about this article, and one should really read the full article. But I’ll highlight four main takeaways. Continue reading "Chevron’s Origin Story"

When Big Brother Is Your Boss

October 4th, 2016 | Matt Bodie | Worklaw

Pauline T. Kim, Market Norms and Constitutional Values in the Government Workplace, 94 N.C. L. Rev. 601 (2016).

Matt Bodie

How should we apply constitutional protections to public employees? The state action doctrine exempts private employers from constitutional scrutiny. However, public employers are bound to abide by the Constitution in their exercise of power. Governments must protect the free speech and privacy rights of not only ordinary citizens but their own employees as well. The difficulties in matching up these rights with the employment relationship have long bedeviled courts. If a worker’s speech in the workplace had the same protections as a citizen’s in the square, or an office had the same protections against searches as a home, governments’ workforce management could quite easily break down. As a result, courts have increasingly turned to private sector norms to guide their application of these rights in the public sector.

In her article Market Norms and Constitutional Values in the Government Workplace, Pauline Kim critically evaluates this trend toward the “privatization” of constitutional norms. Kim argues that the Constitution is designed to provide important protections to governmental employees—protections that are justified by the differences between private and public employers. Focusing on First and Fourth Amendment protections, the article explains why speech and privacy rights are particularly important to public employees. Although Kim does not reach hard and fast doctrinal solutions, she does provide specific theoretical contributions to the literature for courts and academics to use in developing a deeper approach. Continue reading "When Big Brother Is Your Boss"

Reducing Valuation Error

October 3rd, 2016 | Kent D. Schenkel | Trusts & Estates

Nancy A. McLaughlin, Conservation Easements and the Valuation Conundrum, 19 Fla. Tax Rev. 225 (forthcoming 2016), available at SSRN.

Kent D. Schenkel

In this practical and timely article, Nancy McLaughlin undertakes a comprehensive analysis of the case law addressing valuation disputes of conservation and façade easements (conservation easements that are designed to maintain the historic character of a building’s façade). She reveals a number of ways in which taxpayers overvalue their easements, and uses what she finds to propose common-sense reforms.

Valuing property for purposes of determining a tax base is usually subjective and often contentious, so valuation-based taxes like the federal transfer taxes are vulnerable to valuation abuse. But property valuation also forms the basis for certain income tax deductions. Section 170(h) of the Internal Revenue Code, enacted in 1980, permits a deduction against the income tax for taxpayers who permanently contribute certain conservation or façade easements to governmental entities or charities. This provision is famously subject to abuse, and McLaughlin points out that valuation abuses have likely worsened over time, while the IRS has also become more adept at identifying abuses. According to McLaughlin’s calculations drawn from the case law, façade easement overvaluation by taxpayers in reported cases has increased from an average of about twice the court-determined value in the early cases to more than four times the court-determined value in the more recent cases. In the conservation easement category, overvaluation as determined from the case law has jumped from an average of about twice the court-determined amount to a whopping ten times over that amount in the more recent cases. Continue reading "Reducing Valuation Error"

Telling the Middle Class How to Be Middle-Class: Tax Incentives for Saving

September 30th, 2016 | Neil H. Buchanan | Tax

Lisa Philipps, Registered Savings Plans and the Making of Middle Class Canada: Toward a Performative Theory of Tax Policy, 84 Fordham L. Rev. (forthcoming 2016), available at SSRN.

Neil H. Buchanan

Analyses of tax policy are typically based on a familiar cost-benefit framework. There are important debates about which costs and benefits should be included (and which are measurable), but the standard formula is simple: (1) Describe the policy goal; (2) Present the costs and benefits of a policy that is meant to achieve that goal; and (3) Conclude that the policy is good or bad, depending on whether benefits exceed costs or vice versa.

In her important new article, Professor Lisa Philipps uses a Canadian tax policy debate to show that this approach is fundamentally misleading. Standard cost-benefit analysis—even if it is focused on inequality or other social outcomes— ignores the effect that adopting policies has on, as Philipps puts it, “the range of policy options considered thinkable.” (P. 102.) Tax policies can become embedded in the social system in a way that cannot be explained by standard cost-benefit analysis, and the resulting changes in social expectations can lead to self-defeating policy inertia. Continue reading "Telling the Middle Class How to Be Middle-Class: Tax Incentives for Saving"

Are Corporations Responsible Agents?

September 29th, 2016 | Gregory Keating | Torts

Benjamin Ewing, The Structure of Tort Law, Revisited: The Problem of Corporate Responsibility, 8 J. Tort Law 1 (2015).

Gregory Keating

In The Structure of Tort Law, Revisited: The Problem of Corporate Responsibility, Benjamin Ewing, a visiting assistant professor at Duke Law School, breaks fresh ground by stitching together contemporary tort theory and recent philosophical work on responsibility. By knitting these threads together, Ewing’s fluent, sophisticated paper shows that imputing moral responsibility to artificial legal persons is an eminently plausible enterprise. The Structure of Tort Law, Revisited shows us that it makes eminently good sense to think about corporations not merely as institutions that we may manipulate to pursue valuable social objectives, but as institutions that bring responsibility upon themselves by their actions. In doing so, the paper broadens the horizons of normative non-instrumental tort theory.

As Ewing notes at the outset of his article, “moralized accounts of tort law” seem “particularly impotent” (whereas economic approaches to tort “seem especially powerful”) in tort cases in which corporate defendants are either held vicariously liable for the torts of their employees, or are themselves held directly liable for the marketing of defective products. (P. 2.) “It is obvious that tort law may affect corporations’ incentives but it is not self-evident that tort liability can be meaningfully understood as a form of moral accountability when it is imposed upon corporate rather than human persons.” (Id.) The central insight of Professor Ewing’s paper is that a particular form of responsibility— namely, “attributive responsibility”— is fundamental to accountability in both law and morals, and that corporations are attributively accountable agents. Continue reading "Are Corporations Responsible Agents?"

Does Compensation Deter Takings? New (and Surprising) Evidence

September 28th, 2016 | Nicole Stelle Garnett | Property

Ronit Levine-Schnur & Gideon Parchomovsky, Is the Government Fiscally Blind? An Empirical Examination of the Effect of the Compensation Requirement on Eminent Domain Exercises, 45 J. Legal Stud. (forthcoming 2016), available at Penn Law: Legal Scholarship Repository Paper 1595 (Oct. 13, 2015).

Nicole Stelle Garnett

This article delves into the issue of compensation, which looms large in debates about eminent domain for two reasons. The first reason is the concern that owners may be systematically undercompensated when property is taken by eminent domain because the constitutionally mandated “fair market value” measure of compensation, articulated in United States v. Miller (U.S. 1943), does not take account of subjective losses.

The second is the presumption, especially prevalent among law and economics scholars, that the compensation requirement cures the “fiscal illusion” problem (i.e., the fact that government actors presumably ignore costs that are not reflected in their budgets). According to this view, compensation ought to deter excessive takings by forcing “takers” to internalize the financial cost of their actions. This assumption is reflected in post-Kelo v. New London (U.S. 2004) state eminent domain reforms that mandate above-market compensation for certain categories of takings. It is also offered as a justification for compensating certain categories of “regulatory takings.” Continue reading "Does Compensation Deter Takings? New (and Surprising) Evidence"

Looking Intersectionally and Seeing Structural Bias

September 27th, 2016 | Wendy Anne Bach | Lex | Poverty Law

Priscilla Ocen, (E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors, 62 UCLA L. Rev. 1586 (2015).

Wendy Anne Bach

Every day, across the criminal justice system, state and private actors wield discretion in making decisions: Is a girl standing before a police officer, prosecutor, child welfare official, or social worker a victim in need of protection or a perpetrator, in need of punishment? Does she need harsh correction or gentle, resource-rich protection? Is she a prostitute or is she a victim of trafficking? In (E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors, Priscilla Ocen presents compelling data suggesting that these discretionary decisions open a door to the exercise of implicit bias and lead to devastating outcomes, disproportionately removing Black girls from the realm of protection embodied by anti-trafficking laws and placing them squarely in the hands of the punitive mechanisms of the juvenile justice system. These facts are tremendously important but, sadly, not surprising. They only add to the wealth of information definitively establishing the disproportionate negative outcomes for Black women, men, boys, and girls in the social welfare, child welfare, criminal, and juvenile justice systems.

While the statistics are jarring, the important questions to ask are causal: Given that Black girls are disproportionately vulnerable to exploitation and disproportionately victimized, why, as a society, do we tolerate them being disproportionately punished? Why are they not, as both the data and intersectionality theory might suggest they should be, at the very center of our efforts to protect girls? Continue reading "Looking Intersectionally and Seeing Structural Bias"

How Do Lawyers’ Expertise Matter in Ordinary Litigation?

September 26th, 2016 | Sida Liu | Legal Profession

Rebecca L. Sandefur, Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact, 80 Am. Soc. Rev. 909 (2015).

Sida Liu

Lawyers play important roles in litigation. To scholars and law practitioners, this statement sounds almost like a truism. To be sure, if millions of people pay hefty fees to retain lawyers in litigation, then the expertise that these lawyers possess and the services that they provide must be valuable. However, which part of lawyers’ expertise makes a bigger difference in ordinary litigation? Their knowledge of the law? Their familiarity with legal procedures? The social networks and relations that they develop with others? Or the symbolic power of their licensing and professional credentials? In the scholarship on the legal profession, all these aspects of lawyers’ expertise have been investigated through case studies and ethnographic work, such as Sarat & Felstiner’s (1995) work on how divorce lawyers control and construct their clients, Herbert M. Kritzer’s (2004) analysis of contingency fee lawyers as gatekeepers of the justice system, Mather, McEwen, and Maiman’s (2001) study on the collegial community of divorce lawyers, and so on. Nevertheless, there had been little systematic effort to test the effects of lawyers’ expertise in ordinary litigation using statistical methods and meta-data, until Rebecca L. Sandefur’s 2015 article Elements of Professional Expertise in the American Sociological Review.

In this article, Sandefur distinguishes between two types of expertise, substantive and relational, following Barley’s (1996) definitions. Substantive expertise is “concerned with professions’ peculiar categories and theoretical frameworks,” including “understanding both substantive law – statutes, doctrines, legal principles, and relevant past cases – and legal procedures.” (P. 911.) By contrast, relational expertise involves understanding “how to navigate the relationships involved in getting the work done” and “the social distribution of knowledge and discretion in the actual relationships through which professional work takes place.” (P. 911.) Whereas substantive expertise is “abstract” and “principled,” relational expertise is “situated” and “contextual.” (P. 911.) Both at are work in the practice of lawyers and other professionals, though relational expertise probably plays a bigger role in the work of lawyers than that of doctors or engineers given the strong relational nature of legal work. Continue reading "How Do Lawyers’ Expertise Matter in Ordinary Litigation?"

Common Law in the Age of Arbitration

September 23rd, 2016 | Allan Erbsen | Courts Law

Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371 (2016).

Allan Erbsen

Judge-made law is dynamic. Rules adapt to innovations in technology, trends in human behavior and markets, and nascent theories that unsettle previously entrenched approaches to a problem. Even when a rule’s basic elements are stable, the accretion of new decisions can lead to subtly different formulations, caveats, and corollaries. Observers might therefore assume that doctrine in any given field will evolve for as long as affected actors are creative and litigious.

But even litigious actors cannot instigate changes to judge-made rules if litigation cannot lead to new judicial opinions. Myriam Gilles proposes a thought experiment to illustrate this possibility in her new article. Suppose that all cases in field X were suddenly shunted to arbitration, such that courts had no further opportunity to write opinions expounding on the law of X. Further suppose that choice-of-law provisions required arbitrators to apply judge-made rules governing X and that arbitrators would not write detailed opinions explaining their decisions (or that their opinions would be inaccessible to nonparties). In this hypothetical regime, the common law of X would stagnate. Doctrine would remain on the books as a source of guidance for arbitrators addressing the idiosyncrasies of individual cases. But those idiosyncrasies would no longer be catalysts for refining the publicly articulated rules that arbitrators apply. Judge-made law would shape outcomes, yet outcomes would not reshape the law. Continue reading "Common Law in the Age of Arbitration"

Law, Legend, and Forgotten Histories of Survivance

September 22nd, 2016 | Karen Tani | Legal History

Katrina Jagodinsky, Legal Codes and Talking Trees: Indigenous Women’s Sovereignty in the Sonoran and Puget Sound Borderlands, 1854-1946 (2016).

Karen Tani

In 2016, legal history is a capacious field – one with a catholic view of what counts as law and a willingness to find legal significance in a wide range of places. Katrina Jagodinsky’s Legal Codes and Talking Trees challenges legal historians to be even more inclusive, especially in the voices we seek to hear and the sources we mine. By pairing underused state and territorial court records with oral histories, legends, local newspaper records, and intricate genealogical research, Jagodinsky offers an all-too-rare glimpse of the experiences and perspectives of Indigenous women in the nineteenth and early twentieth centuries, as they navigated formal legal systems that were not their own.

Legal Codes and Talking Trees centers on the legal encounters of six Indigenous women in “borderlands” communities, spaces marked by competing territorial claims, overlapping legal jurisdictions, and mixed populations. Three of the cases come from the Sonoran Southwest (encompassing parts of present-day Arizona, California, and Northwest Mexico) and three from the Puget Sound region (including parts of present-day Washington and British Columbia). Jagodinsky selected these two regions because of the different approaches that white settlers took to the Indigenous populations there. But when it came to Indigenous women’s “bodies, progeny, and lands,” she discovered “remarkably similar demands from [American] citizen men and women” (P. 11). Continue reading "Law, Legend, and Forgotten Histories of Survivance"

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