Thursday, July 23, 2015
God Doesn't Play Dice, Spooky Action at a Distance, If You Have a Hammer, Everything Looks Like a Nail, Ships Passing in the Night, and Other Metaphors For Belief and Debate
This is a reflection about disciplines and theory, in particular, law and economics. I preface it by saying that I think economics is a fascinating subject, I took a lot of econ classes in college (mostly macro), and I was an antitrust lawyer for a long time, which meant that I had to have some handle on micro as well. What provokes this particular reaction is a new piece by Bob Scott (Columbia), a far more distinguished contract theorist than I, on the same subject, contract interpretation, on which I've been writing and blogging this summer. Bob and I aren't just ships passing in the night. (If we were, he'd be the aircraft carrier in the photo at left.) We are sailing in different oceans. I have been thinking the last few days about why. (I should say that Bob and his frequent co-author, Alan Schwartz, have acknowledged my previous critiques in print. The sailing metaphor is about our concepts, not the fact of the dialogue!)
I'll come back to the specifics later. What I want to consider first is those circumstances in which reasoned discussion is or is not even possible. A couple years back I read a fascinating article by a philosopher named Brian Ribeiro, in which he assessed truly hard cases of conflicting belief, i.e., those instances in which the interlocutors disagree but are not ignorant of critical facts, are sufficiently educated, and are under no cognitive disabilities. A perfectly good example is religious belief. If you are a Mormon or a Catholic, you are going to believe things about which no amount of reasoned argument will change my belief. Rather, a change has to be the result of a conversion. To quote Ribeiro, "If reconciliation is to occur, then one of us must forsake reason-giving (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute."
It's pretty easy to see that issue in the case of religion, but my contention here is that it happens all the time in academia, i.e., we are ships passing in the night because we begin with an affective set of foundational beliefs upon which we base our sense-making of experience, and the affect is simply not amenable to anything but a conversion experience if there is to be a change. The first part of the title is a reference to Einstein's famous quip about quantum mechanics, and has to do with something very fundamental about how you believe one event causes another (like particles influencing each other simultaneously at distances greater than light could travel in that instant - the issue of "entanglement" that Einstein called "spooky action at a distance").
I'm not saying that one can't be converted. I suspect there would be some experiment that could have brought Einstein around, just like Arthur Eddington's experiment brought Newtonians around to Einstein's general relativity. The issue arises at a meta level, when you don't believe that there can be evidence that would change your belief. Sorry, but I don't think even my believing Christian friends whose intellects I respect beyond question are going to get me to believe in the divinity of Jesus Christ.
I'm pretty sure that there's no bright line that cabins off the meta issue of belief solely to matters of religion, however. My friend and next door neighbor, David Haig, is an esteemed evolutionary biologist at Harvard. He and I occasionally partake of a bottle of wine on a Saturday or Sunday afternoon, and come around at some point to the "hard question of consciousness." This is the unresolved scientific and philosophical question of the phenomenon of consciousness. At this point, the debate is not so much about whether there is a reductive explanation, but whether there can ever be one (that's why it's still as much a philosophical as scientific debate). David and I pretty much agree to disagree on this, but my point is that reasoned discussion morphs into belief and conversion at some point. That is, if presented with a theory of consciousness that comports with the evidence, I'd be pretty stupid not to be converted (just as if Jesus showed up with Elijah at our next Passover Seder and took over reading the Haggadah). But for now, he believes what he believes and I believe what I believe. (There's a philosophical problem of induction buried in there, because usually the basis of the belief that we'll solve the problem is our past experience of solving heretofore unresolvable problems.)
How this ties back to something as mundane as contract law after the break.
Wednesday, July 22, 2015
How Marriage Bans Harmed Children of Same-Sex Parents
In Obergefell v. Hodges, state defendants argued that marriage bans and non-recognition laws (hereinafter "marriage bans") were justified because they were good for children. Put another way, excluding same-sex couples from marriage was beneficial to children of opposite-sex couples. As explained in a previous post, marriage ban proponents' critical error was their failure to recognize that gays and lesbians have children too.
Tuesday, July 21, 2015
Abercrombie Settles: Interesting Consumer Discrimination Issue Avoided
Abercrombie settled the EEOC claims on behalf of the Muslim woman denied a job because her hijab conflicted with the store’s look policy. As you’ll recall, just last month the Supreme Court ruled 8-1 that the EEOC could go forward on its Title VII disparate treatment claim by showing that the need for an accommodation was a motivating factor in the employer’s decision. Actual knowledge that the applicant would need such an accommodation is not required.
The settlement means we won't see whether on remand Abercrombie would again raise its undue hardship defense. And, with it, evidence that Abercrombie shoppers are less likely to buy stuff if the sales-floor employees (or in Abercrombie’s jargon, “models”) are wearing hijabs. Imagining for a second Abercrombie customer shopping patterns are negatively influenced by the presence of hijab-wearing workers, would potential consumer religious discrimination be enough to constitute an undue hardship? What would a reasonable accommodation involve in such a case? An attempt to educate consumers about their own biases?
The law’s treatment of consumer discrimination (that is, discrimination by consumers) is uneven. It is virtually never directly regulated. There’s no law prohibiting an Uber customer from seeing that the driver coming is a woman, canceling the ride, and trying again until she get a man. Instead, the law at best regulates consumers indirectly, through the regulation of company actions. How we decide which sorts of discrimination are left on the table is curious.
As raised again in a NYT op-ed the other week, Las Vegas hotels hire only model-looking women as pool-side waitresses and then require them to meet exacting (and gender stereotype reinforcing) grooming standards, all while walking around in tiny bikinis. (Male waiters are in polo shirts and knee-length shorts.) And why? Because we think it acceptable to sell a mostly male clientele the sort of sexual fantasy they want to buy. But then think of consumer racist or sexual orientation preferences. A restaurant cannot deny service to a black woman, even if it were the case that serving her meant losing potential revenue from racists. Not so for refusing service to a lesbian couple on that same basis. If your customers don't like fat people, no problem excluding them either.
With the settlement we won’t know how an undue hardship defense would go, but comparing Abercrombie’s policy to other areas where consumer preferences for what may be invidious discrimination is interesting food for thought.
Monday, July 20, 2015
Teaching Open Source Civ Pro: My (current) Hybrid Approach
This month I am blogging about my journey to try and teach civil procedure from completely open source materials. This post is a bit of a confession -- I have not yet made it all the way to completely open source materials. After the jump, I'll outline why I'm still reliant on a book (although not a casebook), and my plans to eliminate this reliance within the next year or so.
I distinctly remember beginning my work day a year ago and coming across the news of Dan's death. I was in complete shock. As so many people have attested to since Dan's death, he was larger than life. Every time I saw Dan, he always had a million pieces of advice, and was overflowing with life. This was even more unique for me because I actually hadn't spent much time with Dan. Only a brief encounter with him was enough to make him a part of your life somehow. After he was gone, I realized that everyone had this experience with him. He was just so full of life that I can't believe it has been a year since he has been gone. It seemed only fitting to remember him on this blog, and hope that his two boys grow up thriving as he would have wanted.
Sunday, July 19, 2015
Complicating the "Trolly Problem"
I had thought the Trolly Problem and its many, many variation was becoming yesterday's news but . . . not so fast. This piece in Wired and this one in Popular Science (HT: Gizmodo, here) suggest that the coming of robot-cars and the matter of their programming might add new life to the question. Maybe a film, "Droids on the Mignonette"? If only Brian Simpson were still among us . . .
Saturday, July 18, 2015
Faculty Lounge Symposium on Go Set a Watchman
Steve Lubet and the Faculty Lounge are hosting an on-line symposium on Go Set a Watchman and they are looking for guest posts offering "takes on Watchman, as well as reassessments of Mockingbird." If you interested, check out the announcement.
Marriage Ban Proponents Slept Through a Revolution: But Not the One You Think
In his last Sunday sermon, Martin Luther King, Jr. told the story of Rip Van Winkle. He went up the mountain during the reign of King George III of England and woke twenty years later during George Washington's presidency. Rip missed out on a lot of change. Dr. King stated that sometimes, "people find themselves living amid a great period of social change and yet fail to develop the new attitudes, the new mental responses - that new situations demand. [Like Rip], they end up sleeping through a revolution."
Friday, July 17, 2015
Big week for the gig economy
For those of us interested in innovation and the future of the on-demand economy and the gig jobs it brings, this week has been a goldmine. Here's some of what's happened. If I'm missing anything, please comment away.
- Hillary Clinton gave her first major economic speech Monday and expressly called out the challenges of the gig economy, stating “many Americans are making extra money renting out a spare room, designing websites, selling products they design themselves at home, or even driving their own car. This ‘on demand’ or so-called ‘gig economy’ is creating exciting opportunities and unleashing innovation but it’s also raising hard questions about workplace protections and what a good job will look like in the future.” (NB: I’m a bit baffled by those who find this claim controversial (it is creating exciting opportunities and innovation and a robust gig economy does raise tough questions about the future of work and workplace protections. That said, it’s somewhat odd that she gave a speech in which she identified the challenges facing Americans as the world of fulltime work is eroding at the New School – a school that is simultaneously understood to be uber progressive and yet 85% of its faculty is part-time.)
- Politico has a nice article discussing how Uber and the rest of the on-demand service companies like it might help the GOP appeal to younger tech and innovation-friendly voters. As Politico succinctly put it, “for the GOP’s hopefuls, Uber offers a perfect political backdrop. It allows them to link their brands with a hip service that’s popular with millennials. It dovetails with the Republican argument against big government standing in the way of innovation. And it gives them an opportunity to court Silicon Valley’s powerful tech industry, which is increasingly donating to national officeholders.” (NB: I do wonder if this is enough of an issue that young voters would actually vote Republican versus continuing to vote for Democrats while feeling, at most, a little liberal guilt the next time they hop in an Uber. Then again, if they understood the history of taxi medallions they might not feel guilt but genuine confusion as to whether Uber is actually any worse for drivers.)
- Speaking of Uber, Jeb Bush took one yesterday morning. [NYT article]
- On Wednesday a California Public Utilities Commission ALJ stated that Uber had not complied with state laws designed to make sure drivers made rides available fairly to all passengers, regardless of who they are or where they live (e.g. those in wheelchairs). It seems Uber refused to provide its data on that issue. The judge recommended a $7.3 million fine and that Uber be suspended from operating in California. [LA Times article here]
- A bit overdue, but on July 8th the Seventh Circuit found a class of FedEx drivers in Kansas to have been improperly classified as independent contractors. The panel had certified the question of employee status to the Kansas Supreme Court earlier and the state court said they were. [Opinion here]. Unless I’m missing something, I think every court presented with this question has found FedEx drivers employees.
- On Wedneday the U.S. Department of Labor issued a new Interpretation of the FLSA’s definition of “employ.” Ben Sachs over at OnLabor breaks it down but the short version is: it’s probably not good for Uber.
- NPR had a two-part series (one and two) about Silicon Valley Rising, a growing labor movement in Silicon Valley that's working for those who provide services for major tech companies like Facebook, Google, Genentech, and Apple. For those unaware of some of the major developments on this front: shuttle drivers for many of these companies have voted to unionize; two months ago Facebook announced that its service contractors with more than 25 employees had to improve wages (to $15/hr) and benefits for those who worked enough hours, and; back in October Google converted its security guards from contractors to full-time Googlers. Apple did the same in March.
Thursday, July 16, 2015
The Future of Tax Administration
In my recent posts, I have been discussing the trend in tax law scholarship toward tax administration, and have suggested possible causes and fruitful areas of inquiry. In this last post on the subject matter, I want to briefly ask: where might this be going? My hope is that tax administration scholarship has as significant of a run as recent trends in tax law scholarship. As a variety of tax scholars have recognized in recent years, how the tax system is administered may be as, if not (in some cases) more, important than what the law is. And there are so many tax administration programs meriting examination. To take just a few: the IRS has special programs for taxpayers in the Large Business and International Division (the nation’s largest taxpayers), such as collaborative, pre-filing issue resolution. In a different part of the taxpaying world, the IRS can settle tax debts for less than the amount owed with taxpayers who can’t pay their tax liability and who meet other requirements. Corporate tax executives hang on the IRS’s every word at ABA meetings to find out how the IRS intends to apply the law. And the IRS gives tax advice (not entirely sure to be correct) to individual taxpayers on the phone. Scholars have suggested in recent years that taxing authorities should play a more prominent role in setting defaults, such as by presumptively taxing or presumptively collecting tax. How does all this comport with administrative law and scholarship regarding administrative discretion? I look forward to all my colleagues’ work that will help me find out.
Wednesday, July 15, 2015
Why Don't We Just Have Students Print Out Materials from Lexis and Westlaw?
When I decided to try to teach an "open source" civil procedure class, I had two broad motivations. First, I am very aware of the high cost of casebooks, and I was interested in minimizing (or possibly even eliminating) these costs for my students. Second, as a procedure nerd, I wanted more control over how I taught my class. I'll return to that motivation in later posts. In this post, I'll address one particular facet of the cost question: why not just list cases and leave it to students to find/consume this material?
Periodically, commenters on this (and other) law blogs will wonder why professors assign casebooks at all. Students could just get the list of cases and statutes from the professor, print them from Westlaw or Lexis, and read them on their own. This is an argument worth taking seriously. After all, most of these materials are publicly available. Some are proprietary to Lexis or West, but students have already paid for this access when their tuition dollars are used to purchase their student subscriptions to these services. Why pay twice for materials that are often in the public domain?
There are a few good reasons not to take this approach to open source teaching.
(1) It doesn't completely eliminate cost.
Printing is not free. Most schools have limits on how many pages students can print per semester, and asking students to print out dozens (if not hundreds) of unedited cases would quickly exceed that limit. Students could print the materials at home, but again, the volume of material to be printed would require a high quality printer and lots of expensive toner. Although some students might be comfortable reading the material from a computer screen or tablet, many students might still have a justifiable desire for hard copies of material, forcing them back onto the cost of printing. Finally, if the professor wants to give an open book exam, school rules on the use of tablets and computers during a final might mean that students using an e-reader might ultimately need a paper copy anyway.
(2) Unedited Cases Can Be Difficult and Distracting
Printing a case straight from the source means that students will have to sift through all sorts of extraneous material: lengthy captions, the syllabus, headnotes/key notes, long string cites with parallel citations, and text and discussions that are not relevant to the specific holding/issue for which a case is being taught. In practice, students will ultimately need to develop the skill of reading unedited cases. One place they may learn to do that in law school is in a legal research and writing class, or in an upper level research class. But in a doctrinal class, where most of us already feel pressed for time to cover material, it does not seem like a great pedagogical choice to force students to direct energy towards sorting the relevant from the irrelevant. While I could make a detailed syllabus telling my students, "read this, don't read that," I feel that it is my obligation as the professor, and not their obligation as the student to make these microedits as they go along. Although I do not doubt that there are a few students who would make this trade off, I would not foist it upon all of my students. There is something to be said for ease of reading, both in terms of content and in terms of visual presentation. I want to be able to offer that to my students so that they can concentrate on the facts, doctrine, and arguments. Moreover, it's useful to have a a uniform format so that the whole class and the professor are, quite literally, "on the same page" during lecture and class discussion.
(3) Don't underestimate the value of the interstitial materials and/or notes and comments in the casebook.
I think it is a common belief among students that their course materials are just a collection of cases, and that all other text in the textbook is secondary (or perhaps even unimportant). I will say that I also subscribed to some form of this belief -- it was part of what led me to think that it would be easy to create my own materials by just providing a collection of edited cases. Having put the materials together and taught the class for a few times, I can now say how wrong this is. The context and background that such materials provide -- however brief, is crucial. Students who skim or ignore this material do so at their own peril. Students who skim introductory material believing that it is not as important as the cases may be correct in their assessment, but may undervalue the context that such material has given to the subsequent reading.
Many professors differ in how much background material they want to provide, and this is why different casebooks have vastly different approaches to narrative text and notes and comments after cases. But providing the students with zero context or notes of a few additional decisions was simply not an option for me. Moreover, there are some topics in civ pro that really do not lend themselves to teaching exclusively through cases. Take service of process under Rule 4. The number of cases it would take to illustrate all of the moving parts is way out of proportion to the importance of a topic. A solid summary of the rules and their applications is sufficient.
In a future post, I'll explain how I've dealt with the problem of interstitial materials while making the transition to open source. For now, suffice it to say that this is a barrier to a simple "list and print" approach to teaching an open source class.
"We Begin with the Assumption that Contracts Matter...."
One of my reads this summer, because it's relevant to my piece on "lexical opportunism," has been a fascinating little book by Mitu Gulati (Duke, left) and Robert Scott (Columbia, right), The 3 1/2 Minute Transaction: Boilerplate and the Limits of Contract Design (Chicago, 2012). The subject matter is a puzzler: why did sophisticated law firms keep including a particular contract provision (the "pari passu" clause) in sovereign debt agreements when (a) almost nobody could present a credible explanation of its purpose, and (b) a highly publicized case affirmed an interpretation of the clause that threatened to undermine all attempts to restructure sovereign debt?
Let me start with words of praise. This is a good read and good work. Anybody seriously looking at issues in contract theory ought to be reading it. But it's refreshing to read the results of an academic, empirical piece where the authors are so frank about their bemusement and their inability to come up with a satisfying explanatory theory. Professors Gulati and Scott come at the problem with a neoclassical economic perspective, and find that "these hard-nosed Wall Street lawyers told us stores about rituals, talismans, alchemy, the search for the Holy Grail, and Zeus." (5) It's pretty clear 173 pages later they'd agree that the conclusion - sticky boilerplate and herd behavior - is a whimper rather than a bang.
I confess that Ayn Rand's The Fountainhead and Atlas Shrugged were staples of my intellectual youth. I've since come to terms with some of the hokum and inherent contradictions in the philosophy (she hated Kant, and I kind of know why - her response to the limits of reason was to opt for an orthodoxy of logic, including the foundational posits that logic requires), but many of her bon mots come back to me at opportune times. The apropos quote here is from Francisco d'Anconia to Dagny Taggart: "Contradictions do not exist. Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong."
Tuesday, July 14, 2015
Just in time for Dan's Yahrzeit (last week on the Hebrew calendar, this weekend on the English), Catalyzing Fans has finally been published in the Harvard Journal of Sports & Entertainment Law (co-authored with Michael McCann and me). The article appears alongside comments by Andrew Schwartz, David Fagundes, Mitchell Berman, and Adam Chodorow.
Given how Dan felt about sports, it is ironic that his final academic word has its greatest application in that arena (Dan was always trying to pull the project into broader applications, where Mike and I saw sports as likely the exclusive province for this idea). The comments fit well together and with the original piece and I think Dan would have been happy with how our article and the whole thing came out. It is a fitting tribute.
Teaching "Open Source" Civ Pro -- a Recap and a Revisit
A few years ago, I blogged (here and here) about my plans to teach “open source” civil procedure by using my own materials that students could access at little or no cost to them. I've now taught the course twice with my own materials, although I have not yet reached my goal of completely open source or completely costless to students (more on that later).
During my guest stint here this month, I’ll write about how that’s been going, highlighting things that have worked well and challenges that I still face. I’m looking forward to readers’ comments with suggestions for improvements and additions to my efforts. I’ll also devote a few posts to challenges inherent in teaching specific topics within civil procedure with a call for creative ways to teach some of this material.
Feel free to start posing questions or thoughts in the comments and I'll try to incorporate that in my posts over the next few weeks.
Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality
This puts together much of what I have been writing here about the mess in Alabama between January and the Court's decision in Obergefell. I reach the same basic conclusion--obnoxious Roy Moore rhetoric aside, everything that happened in Alabama in those six months was consistent with the judicial process and with the traditional scope of injunctions and district court precedent.
Monday, July 13, 2015
Irony is dead
Billboard at the Atlanta Airport. I know nothing about EarthJustice; I just question their advertising strategy.
Re-evaluating the constitutional oath
What we do when we make promises and what it means are both interesting and important questions, so when I saw Will Baude’s review of Richard Re’s forthcoming Promising the Constitution had the title “The Power of Promises,” I read Richard’s article straightaway. The short version is I’m a bit more skeptical of Richard’s claims than Will is, but I suspect my skepticism about the larger project (à la Mike Seidman) is doing some of that work.
Since Will already did a nice job recapping Richard’s piece, I’ll just do a brief summary here.
The "Limits of Religious Liberty": Complicity and Dignity
A few days ago, in the NYT Magazine, Emily Bazelon had this piece, What Are the Limits of "Religious Liberty"? Among other things, Emily gave a nice shout-out to Profs. Reva Siegel and Douglas NeJaime, who have this new article in the Yale Law Journal, "Conscience Wars: Complicity-Based Conscience Claims in Religion in Politics." I was a participant in a conference at which this paper was presented, a little over a year ago -- here's what I said -- and think it's definitely an important read. I also think, though, that some of its primary claims are unconvincing. I recommend that those who read it consider also reading, among other things, Marc DeGirolami's essay, "Free Exercise by Moonlight," which engages helpfully the claims I have in mind.
The Siegel & NeJaime article covers a lot of ground. Among other things, they contend that "complicity-based" conscience claims are distinctive, and raise special concerns, "because accommodating claims of this kind has the potential to inflict material and dignitary harms on other citizens. . . . Complicity claims focus on the conduct of others outside the faith community. Their accommodation therefore has potential to harm those whom the claimants view as sinning." (The quoted language is from the SSRN abstract.)
It does not seem to me, though, that B is necessarily wronged or demeaned by A's determinations that (a) B's conduct or proposed conduct is or would be immoral and (b) actions and intentions of A that would create culpable complicity with B's conduct should be avoided. Certainly, it's possible for these determinations to be communicated in an insulting or demeaning way. And, a determination by A that "B is not the kind of person with whom I want to interact" or "B is unworthy of my interacting with her" could raise, I think, the concerns NeJaime and Siegel raise. The paper argues, though, that even implicitly calling an act or omission immoral, or a "sin," insults, demeans, and wounds the dignity of the actor. This sweeping claim seems hard to square with our practices and policies. (Marc DeGirolami has more on this point, here.)
Hiring Posts - Schedule
An approximate schedule of other posts follows, based off the dates of the first FAR submission (Thursday, August 20) and the AALS conference (October 15-17).
Monday, July 13 (today): Hiring committee thread posted. Available here.
Thursday, August 27: Law School Hiring, Thread One (reporting interview requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Thursday, August 27: Clearinghouse for Questions (last year's thread here).
Monday, October 19: Law School Hiring, Thread Two (reporting callback requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Wednesday, November 11: VAP thread (last year's thread here).
Late February/early March: Begin entry level hiring report data collection.
Hiring Committees 2015-2016
Please share in the comments the following information related to the 2015-2016 law school faculty hiring season:
Additionally, if you would like to share the following information, candidates might find it helpful to know:
I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)
You can't make changes to the spreadsheet directly, so please post the information in the comments, or email me directly, slawsky *at* law *dot* uci *dot* edu.
Additionally, in 2011, someone very kindly submitted a spreadsheet of addresses of a subset of law schools, if folks want to create their own mail-merge. You can download it here. (If anyone wants to update or expand it and send me a new version, that would be awesome.)
Originally posted July 13, 2015.
Line Drawing and Rulemaking
As I suggested last post, I think that, as much as scholarship regarding tax law administration will benefit from relying on the (many) decades of administrative law scholarship, having fresh (tax law) eyes interacting with administrative law scholarship might also benefit the administrative law field. To take one example, I have become fascinated by reading the administrative law scholarship regarding characterizing legislative rules, interpretive rules, and policy statements. To put the matter simply, legislative rules must comply with notice and comment requirements. Interpretive rules and policy statements need not. Notice and comment is thought to integrate important values into the rulemaking process. However, notice and comment is costly for agencies and, as a result, if it is required, agencies may avoid making rules. Since it is very hard to distinguish between the three types of rules, many administrative law scholars worry that if too many things are characterized as legislative rules (thereby requiring notice and comment), agencies may reduce the amount of guidance that they issue.
One (among many) things that fascinates me about this issue is that, to the tax scholar (very much influenced by the decades of tax law and economics scholarship), this is a classic problem of linedrawing, and how to draw a line as efficiently as possible. Essentially, we can reimagine the notice and comment requirements as a tax. Rather than raising tax revenue (as an actual tax would), the notice and comment requirements serve a valuable goal. However, if the tax (the application of the notice and comment requirements) is too high, people (in this case, agencies) will change their behavior to avoid it (in this case by not issuing guidance at all). Changing behavior to avoid a tax is inefficient because (1) the tax isn’t raised, and (2) parties have changed their behavior from the optimal behavior they would have preferred in the non-tax world. In the agency rulemaking context, the imposition of notice and comment requirements is inefficient when agencies simply avoid such requirements by not making rules because (1) the benefits of notice and comment procedures won’t be realized, and (2) the agency will not have issued the guidance it would have liked to issue absent the requirements.
While it is fascinating to me just to see this problem through the linedrawing / efficiency lens, I think doing so may also yield helpful insights into the administrative law dilemma. Inefficiencies are just a fact of life with taxes – when taxes are imposed, parties will shift their behavior to avoid them. Similarly, the existence of notice and comment procedures will necessarily cause agencies to issue less guidance to avoid such procedures. As a result, the very reduction in guidance shouldn’t cause hand-wringing. On the other hand, the fact that agencies will inevitably change their behavior also shouldn’t be the end of the conversation. Rather, the linedrawing scholarship in tax teaches that, while efficiency is not the only relevant criterion, all else equal, taxes should be imposed where behavior is least elastic. Imposing tax where behavior is least elastic raises the most tax possible while engendering the least behavioral distortion. Applying this principle to the context of agency rulemaking, then, notice and comment procedures should be imposed when the agency is least likely to change its behavior to avoid such requirements. The question, then, is when is this likely to be the case? I wonder whether empirical studies could help determine the likely elasticity of agencies’ responses to the imposition of notice and comment procedures in various situations. While this may seem like quite a lot to ask as an empirical matter, many years of work in the tax context have revealed quite a lot regarding tax elasticities. Perhaps merely posing the question at this point might yield some new opportunities for empirical study in the agency context. At the very least, perhaps the linedrawing lens might be a new, helpful way to conceptualize a seemingly intractable problem in administrative law scholarship.
Sunday, July 12, 2015
For all that lawyers and law professors traffic in language, sometimes I think language is to lawyers as water must be to fish. That is, if you live in it, it's kind of hard to step back and realize the universe could be constituted out of some other medium.
Up here, the cable provider is Charter, and it runs a lot of commercials. The actor in the commercial for its business services trumpeted yesterday that one of the benefits of subscribing was "no contracts!" Well, you and I both know that there HAS to be a contract. God knows Charter will be disclaiming SOMETHING - like, for example, the potential for consequential damages to a business if the internet connection goes down.
What we all know is that "no contracts" actually means something other than its literal meaning. "No contracts" means only that the subscriber won't be held to a fixed term, and will be able to cancel its service without much notice to Charter. OMG, the plain meaning is precisely the opposite of the plain meaning!
The particular conceit of the smartest people in our profession - and I mean both practitioners and professors - is that words and sentences are capable, with the right skills, of exactitude that approaches an asymptotic limit. Within a certain school of contract law theorists, this gets expressed as the idea of an "incomplete contract," as though the idea of a complete contract, one that contemplates EVERY possible state contingency, is something any more conceivable than the Kabbalists' notion of God (the Ayn Sof - "there is no end"). I put the term "complete contract" in the same conceptual category as I do non-words like "gruntled," "dain," and "combobulated."
Below the break, I fulminate on this idea - that plain meaning is like Schrödinger's cat, existing and not existing at the same time - in the context of statutes (i.e. King v. Burwell) and contracts. (Full disclosure: I'm the guy who, when any student in my contracts class says the words "mutual intention of the parties," starts making "woo-woo" noises and acting out the Vulcan mind-meld.)
Friday, July 10, 2015
So it seems everyone thought Nebraska had a great idea on how to end marriage-equality litigation while avoiding attorney's fees. Arkansas and South Dakota have joined Nebraska in asking the Eighth Circuit to dismiss appeals as moot and vacate the various injunctions. Kansas is asking the Tenth Circuit District of Kansas to do the same. And now Alabama is asking the Northern District of Alabama (in a recognition suit that had not yet proceeded to even a preliminary injunction) to do the same.
Thursday, July 09, 2015
What to read the summer before law school?
Michael Krauss (George Mason) has some suggestions in the WaPo, here. (I was happy to see the shout-out for my former colleague Pat Schiltz's article on "being a happy member of an unhappy profession.) A while back, when I was an associate dean, I put together a similar list for our incoming first years at Notre Dame. (My list, like Krauss's, included The Bramble Bush, but I couldn't resist adding John Noonan's Persons and the Masks of the Law.).
What would be on your list?
Obergefell and the Interests of Children
Thanks to Prawfsblawg for inviting me to guest blog. I am excited to share my thoughts on Obergefell, which cited the amicus brief on the Constitutional Rights of Children that I co-authored with Lauren Fontana (Denver), Susannah Pollvogt (Washburn), and Tanya Washington (Georgia State). I am new to blogging and will "just keep it real," as advised by my eleven-year-old daughter, veteran blogger, Zoe Smith-Holladay.
It is historic that Obergefell interpreted the fundamental right to marry to include same-sex couples and recognized that marriage bans can place undue harm on the children of these couples. Although the decision may be viewed as an affirmation of conservative values that privilege married people, it also lays the foundation for a more expansive interpretation of family.
Wednesday, July 08, 2015
AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction
The following comes from Tara Leigh Grove, on behalf of the AALS Section on Federal Courts.
The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY.
Same-sex couples in recalcitrant counties and states have a problem, as illustrated by this case in Hood County, TX. Recall what happened: The county dragged its feet in issuing license to same-sex couples, a couple sued for an injunction compelling the license, the county within a few hours relented and issued the license. As I said previously, the case is now moot, but the plaintiffs are not prevailing parties because they did not obtain a judicial decree guaranteeing that license, therefore they cannot recover attorney's fees (which would be small anyway--just the amount to draft short complaint and TRO motion and file the thing). But attorney's fees are the driving force for compliance--recalcitrance needs to become expensive in order for officials to fall in line.
One solution would be for the court to impose sanctions on the clerk. But then the question is from what source? Rule 11 only applies to papers and other things presented to the court; here, the case has become moot before the defendant clerk has even appeared, much less presented something to the court. Section 1927 only applies to attorneys, and then only for conduct that "multiples" proceedings. So that leaves the court's inherent authority to sanction, including through attorney's fees, in order to compensate, deter, or punish. So does inherent sanction authority reach the type of (mis)conduct we see here: Pre-litigation refusal to comply with precedent, forcing a lawsuit, and immediately acquiescing before the court has an opportunity to hear the case? (In contrast to forcing a lawsuit in order to argue for overturning Obergefell)?
When Corporations are Good People: Part Two
I want to follow up on my previous post by putting forth one way to solve the puzzle I raised. I’d love more thoughts on this.
Again, the puzzle is that A) some people seem to think that corporations have neither religious beliefs nor First Amendment rights while also B) finding it good/desirable when companies support laudable political and/or social causes (e.g. “green” practices, a café that only sells fair trade coffee, a company contributing funds to or otherwise marching in an LGBT parade, a supply-chain code of conduct that holds suppliers to a standard far above what the law requires, etc.).
These positions are inconsistent if entities that can aim to do good should have constitutional rights. But then that’s the question: why think doing good implies having rights? Two possibilities:
(1) Like any area where we see entities doing normative work, what’s really going on is that individuals are doing it. Individuals have constitutional rights and when they act, through the corporate form or otherwise, those rights remain.
(2) When we create new entities (for-profit corporations, non-profit corporations, countries, cylons) and those entities are capable of having their own ends or purposes, they get rights.
Yet here’s one way I can imagine someone accepting A and B and version (1) above without running into a contradiction. (I haven’t yet thought through ways out for those who adopt (2).)
A Summer Classic: Moral Panic over a Pier Shooting
It is a reminder of how hard the past is to leave behind (especially when your leading politicians belong to it). By now the whole nation knows the basic facts. Francisco Sanchez, a 45 or 52-year-old Mexican national shot and killed Kathryn Steinle, 32 year old resident of a nearby suburb in a chance encounter along San Francisco’s popular and seemingly safe waterfront Embarcadero Boulevard last week. It had all the makings of what criminologists call a “moral panic” an untoward event, small or large, that becomes a vehicle for vast social and political anxieties over race, class, and national identity. A low status villain---non-White, poor, non-citizen, long criminal record, multiple incarcerations, kills a high status victim--White, middle class, citizen, mother of children, never been in trouble with the law. It occurs where it should not, in a place associated with comfort and recreation. Events like this sometimes stay just local news, but given the right conditions, they can blow up into a policy storm of significant magnitude. Will this one?
JOTWELL: Levy on Huq on constitutional justice
The new Courts Law essay comes from Marin Levy (Duke), reviewing Aziz Huq's Judicial Independence and the Rationing of Constitutional Remedies (Duke L.J.) (forthcoming), which links the use of fault rules limiting constitutional remedies to the judiciary's efforts to protect its institutional interests. Have a look.
The IRS's Dual Role (and Other Agencies' As Well)
In my last several posts, I have explored a trend toward tax law administration scholarship and how the interest in this topic may be connected with recent, important coverage of administrative discretion generally. As study of tax law administration continues to develop, I think it will be important to keep in mind the connections between the IRS and other agencies. Recognizing such connections will allow for fruitful cross-pollination of ideas. To the extent that commonalities exist between the IRS’s exercise of its administrative discretion and other agencies’ exercises of their discretion, studies of each can inform the other. Tax law scholars newly thinking about administrative discretion can build on the many decades that administrative scholars have spent thinking about these issues, and administrative scholars may benefit from fresh eyes and detailed study of the IRS as a means of thinking about agencies.
For instance, one aspect of the IRS’s administrative discretion that I think is currently understudied is the IRS’s dual role as a service agency and an enforcement agency, and how the IRS exercises its discretion in its service capacity. A number of tax scholars in recent years (including myself) have examined how the IRS can exercise its enforcement discretion to change the scope of the law. This focus makes sense. I think that, typically, the IRS is thought of as an enforcement agency. It is, after all, the agency responsible for enforcing the tax law. However, as the IRS’s own mission statement acknowledges (and even highlights up front), the IRS is also charged with serving the public. In particular, the IRS is obligated to help taxpayers fulfill their taxpaying obligations. As Josh Blank and I are exploring in a new project, as a result of this service role, the IRS expends significant resources explaining what the tax law is in plain writing that many taxpayers can understand. In so doing, of course, the IRS also exercises significant discretion. As we show, the IRS’s exercise of this discretion gives the IRS a powerful platform to shape taxpayers’ views of the tax law.
Tuesday, July 07, 2015
“Machines, Democracies, and Teams” - Metaphors for Academic Governance
Two relatively unrelated events provoked what I was thinking about on the dog walk this morning (possibly the most dangerous forty-five minutes of my typical day). The first was the recent resignation of a law dean owing to “major policy differences with a vocal segment of the faculty.” The second was realizing how “un-Prawf” I am when I looked at our school’s periodic review schedule for tenured faculty: I will not undergo such a review until 2019, when I am sixty-five years old.
Let me be clear that this is a reflection in a blog post and not rigorous theory, even if others have done pretty rigorous thinking on the metaphors I’m about to propose. But I have spent considerable time in at least three organizational models – big law, public corporation, and law school faculty – and a good part of my brief in at least one of them was to think about organizational effectiveness.
I want to propose three idealized metaphors for organizations, recognizing that they are ideals and that no real organization is a perfect prototype of any of them. The first is “organization as machine.” The second is “organization as democracy.” The third is “organization as team.” One of the key differentials in the three conceptions is the nature of accountability of the individual to the organization, and in turn the developmental obligation of the organization to the individual. My thesis is that, for better or worse, the second metaphor is the most powerful one for academic governance. Whether it works (whatever “working” means) is another question.
More follows the break.
John Yoo and Me on the Supreme Court and the Separation of Powers
As part of "Celebrate Liberty" month (a joint project of the Federalist Society and the Washington Times), today's Times includes dueling op-eds by John Yoo and me on the separation of powers after and in light of the most recent Supreme Court Term. Here's John's piece; here's mine.
Perhaps not surprisingly, both pieces focus on the marriage cases. John's starts from the premise that "the Supreme Court cannot finally determine any fundamental constitutional dispute," and goes from there to urge popular resistance to the decision from those who disagree--not through disobedience or defiance, but rather "by seeking judicial nominees who will restore primary control over family law and marriage to the states." Thus, as John concludes, "Like the opponents of Roe v. Wade, they can create a political and cultural environment that makes a return to the Court’s proper role possible. While such a campaign could take decades, as has the movement to restore control over abortion to the states, conservatives should work within the bounds of tradition, even when the Court does not."
My piece takes somewhat of a different view. Seizing upon the Obergefell dissenters' claims about the anti-democratic nature of the decision, I argue that an ambitious Supreme Court is actually a healthy thing for the separation of powers (as Madison argued in the Federalist No. 51), so long as the Court is properly exercising judicial power in the formal sense--by deciding cases and controversies within its jurisdiction. Thus, as I conclude, "it’s long-past time that we learned the difference between rulings that exercise judicial power that doesn’t exist, and those that exercise established judicial power to reach a result with which we disagree." It's one thing to criticize Obergefell for reaching the wrong answer to the constitutional question; it's quite another to criticize it for answering that question in the first place. (And the same works in reverse--progressives might critique Heller, Citizens United, and Shelby County on the merits, but it's hard to dispute the claim that the constitutional questions in those cases were properly before the Court, but cf. Fisher.)
Even though we didn't have a chance to see each other's drafts in advance (or, as such, to respond to each otther), I actually think these pieces fit quite nicely--and help to illuminate the ever-ongoing debate over the proper judicial role.
Monday, July 06, 2015
What can plaintiffs sue for after Obergefell?
A same-sex couple sued the County Clerk of Hood County, TX in the Northern District of Texas on Monday, after they were denied a marriage license (purportedly because the office did not yet have appropriate forms). With several hours of the suit being filed, the office issued the license. Precisely how it should go.
Here is where it gets tricky: According to the above article, the plaintiffs want their attorneys' fees and say they will not drop the lawsuit "until the clerk’s office agrees to issue marriage licenses to 'all couples, gay and straight, without delay.'" But neither of those things should happen:
1) The lawsuit is now moot and should be dismissed as such, since the plaintiffs got what they sued for--their marriage license.
2) The plaintiffs lack standing to seek relief for all couples, gay and straight. So it sounds nice, but that is not how litigation works. Perhaps if they certify as a class action, although I need to see the complaint to know whether they are trying to do that. Of course, that does not resolve the mootness problem.
3) The plaintiffs probably will not get attorneys' fees, since they are not prevailing parties. The defendants complied without any judicial order or injunction. And even though compliance was obtained because of the lawsuit and the certainty of liability, the Supreme Court rejected the so-called catalyst theory of attorneys' fees, demanding that a party prevails only if they obtain some judicial decree in their favor.
4) The solution for the plaintiffs may be to sue for money damages for the inconvenience and humiliation caused by delay unique to same-sex couples. Assuming that short delay constitutes a violation, the claim only would be worth $ 1 in nominal damages, but it avoids mootness and prevailing-party issues.
When Corporations are Good People
I’m currently in the early days of a larger project looking more closely at corporate personhood and liberal pluralism. One of the first steps is getting clear on what corporate personhood even means and what about it, and corporate influence in politics and society more generally, people find objectionable. So far, it strikes me that there’s genuine tension between the liberal backlash against Citizens United and Hobby Lobby and the seeming endorsement of the following:
- At LGBT Pride parades across the country last week tons of workers marched behind company banners and corporate-sponsored floats. The NYT mentioned Exxon Mobil at the Houston parade but they’re by no means the only one. Apple (with something like 8000 employees marching in matching t-shirts), Google, Facebook, Coursera, Airbnb, Chipotle, Expedia, Uber, and Genentech – tons of companies participated (you can see some photos here). Employees often take their employer’s participation as a source of pride – they want to march as representatives of their companies. The public seems pleased to see companies march and parade organizers take it seriously. Indeed, Facebook was only allowed to march in SF Pride by a 5-4 vote by organizers (protesters argued Facebook’s real name policy discriminated against those in the LGBT community who use pseudonyms for safety). But note that the protest was about the substance of Facebook’s policies and not about the participation of corporations more generally.
- In April 2014 pro-LGBT rights groups called for the resignation of Mozilla’s then-CEO after it came to light that he donated $1000 to Prop 8 back in 2008. OkCupid, another company, went so far as to block Firefox users from accessing its site, presenting those users instead with information about the Mozilla controversy and OkCupid’s commitment to gay equality. OkCupid told users it “would therefore prefer that  users not use Mozilla software to access OkCupid.” [one story here]
- Calls for companies to be “good corporate citizens” and the entire corporate social responsibility movement more generally. [Forbes keeps a list of the top 100 best]
Am I missing something?
Goldman Sachs Programmer Sergei Aleynikov's Saga to Acquittal - EEA and Secrecy Hysteria
Today marks the second time of a dramatic acquittal for Sergei Aleynikov, the Goldman Sachs programmer who was prosecuted and convicted first in federal court for economic espionage, served a year in federal prison, then had his conviction overturned. In my article, The New Cognitive Property: Human Capital Law and the Reach of IP I devote an entire section to the Aleynikov case, which I subtitled, Sergey Aleynikov’s Crime: Secrecy Hysteria as a Control Device. I also talk about the case in my new TED talk, Secrets and Sparks.
For those who have not followed the case, here is a little taste of it, from The New Cognitive Property. Sergey Aleynikov was a star programmer at Goldman Sachs. A month after leaving Goldman Sachs to work for a new company, Teza Technologies, he was arrested by the FBI, and later prosecuted and convicted under the Economic Espionage Act for stealing proprietary technology. Goldman had accused Aleynikov of stealing computer code and sending himself 32 megabytes of source code. Immediately upon discovering the downloads, Goldman notified the FBI which promptly sent agents to arrest Aleynikov. Aleynikov was sentenced to eight years in federal prison. Alyenikov worked as a programmer for Goldman’s high frequency trading platform where he, like other programmers, used open source software on a daily basis. Unlike the frequently practiced requirement of putting open source code back to the common pool after use and modification, Goldman had a one-way attitude about open-source. When Goldman programmers took open source, it became Goldman’s proprietary information. Goldman would not return the adjusted code to public domain, likely in violation of the open-source licensing agreements.
In the introduction of Flashboys, Michael Lewis asks about the zealous prosecution of Alyenikov: "Why exploit the ignorance of both the general public and the legal system about complex financial matters to punish this one little guy? Why must the spider always eat the fly?"
Paul closed comments on his excellent post on the distinction between empathy and sympathy (and, as a third element, compassion). I will just second Paul's remarks by recommending Thomas Colby's 2012 article in Minnesota Law Review, which I reviewed for JOTWELL. As I wrote here, this exchange between Sen. Kyl and Elena Kagan during Kagan's 2010 nomination hearings both exposed the confusion many have over the terms and had the potential to explain the role empathy actually plays in judging, although I don't think anyone recognized it at the time.
Empathy, Sympathy, Compassion, and Sentimentality (and Obergefell)
At The Faculty Lounge a few days ago, Calvin Massey had this nice, short take on empathy, the Constitution, and Obergefell. The post responded to a recent op-ed by Kent Greenfield, which argues that "[t]he difference between Justice Anthony Kennedy’s majority opinion [in Obergefell] and the lead dissent of Chief Justice John Roberts is empathy, and lack thereof." Massey does not take issue with the premise that empathy had a role to play in Obergefell. But he suggests that "there was another path that would have bridged the passionate empathy of Justice Kennedy and the sober reading of constitutionally protected liberties of the Chief Justice": namely, to hold that full faith and credit demanded the recognition of out-of-state same-sex marriages, while leaving the states with some right to define marriage as they wish. He concludes: "Empathy itself cannot be the ratio decidendi of constitutional law, but neither must it be absent."
A lot of careless things are written and said about empathy and constitutional interpretation. Both Massey and Greenfield's pieces, although I disagree with aspects of each of them, are better and more interesting than that. Greenfield, for instance, favors the use of empathy as an important element in constitutional interpretation, at least in cases that allow for judgment calls. But he does not think it is sufficient as an interpretive guide. A balance is required. "Judging with feelings alone can be disastrous. But cold intellect can lead to error as well."
In writing about these issues, it is important to keep some distinctions in mind. In particular, it is important to distinguish between sympathy, empathy, and compassion. I go into these distinctions below the fold, at the usual Horwitzian length. I sympathize with those whose understandable reaction is "tl; dr." They can skip to the last paragraph of the post, where I sum up my conclusions. I will go one better than that here and offer an even shorter summary: Most people who praise judicial empathy during a judicial nomination and confirmation process actually care about judicial sympathy or compassion. By contrast, nothing about judicial empathy requires a judge to favor the claims of the more sympathetic or disadvantaged party. Indeed, one of the most valuable aspects of judicial empathy is that it helps the judge in speaking to the loser of the case.
Sunday, July 05, 2015
"The Constitutional Legacy of William Rehnquist"
It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.
Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.
A great summer gift -- or, a not-very-effective paperweight -- for the lawyers and law students in your life!
What Explains the Trend?
Thanks to all for engaging with my last post, which suggested that there is an increasingly prominent trend in U.S. tax law scholarship toward thinking about tax law through the lens of administrative law and administrative discretion. I take the points made by commentators that this trend may be reinforced by the increased attention to administration by scholars in other fields. For instance, as Brian Galle pointed out, public finance economists have been paying more attention to enforcement and administration as of late. Nonetheless, I think that there are also other factors that have led to an increasing focus on administrative law and administrative discretion by U.S. tax law scholars in particular. What might some of these be?
Saturday, July 04, 2015
Wine, Soda Pop, and Law Schools - More on "Law Review Lift (Drag)"
Some time this month I will get to a relatively more serious topic, like textual opportunism, but for right now I'm still fiddling around with Al Brophy's ranking system.
So that I don't bury the lead, let me say up front that I have played some simple-minded statistical games with Al's data. What I come up with is that, among academics, "brand," as with soda pop, means a lot, and it is relatively sticky and independent of what is going on with the students.
I also think it's pretty obvious that there is a relationship between the "brand" and student data (i.e. high correlations between any ranking system and LSAT scores, for example). What got me interested, however, as I noted a few days ago, was the differential when Al included or didn't include a different and interesting stat: how often the school's main law review (not its faculty) got cited. My intuition is that what other profs think about placing articles in a school's review (based on my own experience) is a lot like the peer reputation score, except that it does measure a revealed preference (i.e., when you rank "peer reputation" as a participant in USNWR, it doesn't cash out to anything; placing an article does!)
The problem with all of these systems, in which we are "ranking" something with many complex factors (like wine) is that the judgment is qualitative, even if it looks quantitative. Often it's qualitative simply because it's qualitative (e.g., "peer reputation"), but even when it's fully quantitative it's qualitative because of the judgments one makes in weighting the quantitative factors. I was once a partner in a big law firm. Our partnership agreement called for compensation to be determined by a committee, which in turn used a list of factors like "billable hours," "service to the firm," "client responsibility," etc. Every two years the committee turned out a ranking that set your compensation relative to all the other partners. Similarly, if you aren't a hermit during early March of each year, you hear about a double ultra secret committee in Indianapolis deciding which of the "bubble teams" gets into the NCAA basketball tournament. Same thing. Recent results? Body of work? Bad losses? Good wins?
In any event, I played with Al's data and made some scatter plots and regressions in Excel, all of which follow the break.
Friday, July 03, 2015
Agency Practice and Agency Statutory Interpretation
I say farewell to this month of blogging at Prawfs by posing a question about judicial deference to federal agencies. The question is: What role does agency practice play in limiting an agency's interpretive discretion?
Thursday, July 02, 2015
The Grim Discrepancies of Capital Punishment
I'm sorry to bid farewell to Prawfs readers on a grim note, but recent legal developments in the aftermath of Glossip might be of interest.
Followers of the Boston Marathon Bombing trial may recall the discontent in Massachusetts over the death sentence for Dzhokhar Tsarnaev. For people living in an abolitionist state, this outcome from the federal system--while, of course, legal--was quite a shock.
Today's news bring a similar shock to Hawaii, which abolished the death penalty in 1944. As I learned during my sabbatical at University of Hawaiʻi at Mānoa, Hawaii houses more than a third of its inmates out of state, on the mainland. Hawaii's former governor, Neil Abercrombie, was elected partly based on his promise to bring the inmates home, and found that doing so was more difficult than he expected.
General Jurisdiction After Daimler
In Daimler AG v. Bauman and Goodyear v. Brown, the Supreme Court held that corporations do not subject themselves to general--or "all purpose"--jurisdiction simply by conducting continuous business in a state. Instead, a corporation's contacts with a state are only sufficient for general jurisdiction if they are so "constant and pervasive" as to render the corporation "essentially at home." But Daimler and Goodyear left open some important questions about general jurisdiction--for example, whether a corporation that registers to do business and appoints an agent for service of process in a state consents to general jurisdiction there.
The U.S. Court of Appeals for the Federal Circuit is poised to decide that question in Acorda v. Mylan and AstraZeneca v. Mylan, two patent cases coming out of the District of Delaware. As I've written about, personal jurisdiction is generally not an issue in patent infringement cases because defendants are usually subject to specific jurisdiction in the forum state (i.e., defendant sells the accused product in the forum state, and that contact gives rise to plaintiff's claim). However, Acorda and AstraZeneca are pharmaceutical patent cases governed by the Hatch-Waxman Act, so the specific jurisdiction analysis is more complicated. (For the record, I believe Mylan is subject to specific jurisdiction in Delaware in both of these cases, but the focus of this post is general jurisdiction).
The question in Acorda and AstraZeneca is whether, after Daimler, registering to do business in Delaware constitutes consent to general jurisdiction, as the Delaware Supreme Court decided long before Daimler. See Sternberg v. O'Neil, 550 A.2d 1105 (Del. 1988). The district judges split on the question; Judge Stark held in Acorda that Mylan consented to general jurisdiction, while Judge Sleet reached the opposite conclusion in AstraZeneca. I agree with Judge Stark that Daimler did not "sub silentio,  eliminate consent as a basis for jurisdiction." In other words, Daimler addressed non-consensual submission to general jurisdiction through contacts, not through consent.
The cases are currently being briefed at the Federal Circuit (which granted interlocutory review), and will likely be argued in the fall.
A Legal Black Hole Springs a Leak?
A federal district judge in Minnesota recently ruled unconstitutional significant portions of that state’s system for detaining sex offenders after they’ve served their criminal sentences. The fundamental defect, according to the judge, was that the state had made it essentially impossible for anyone to get out, as illustrated by the fact that no one ever had. The opinion only hints at the more basic questions of whether we should create such a black hole in the first place and, if so, who should we throw in.
Playing With Al Brophy's Alternative Law School Rankings - Student Centered vs. Student/Scholarship Centered Results
I have all sorts of analytic issues with law school rankings - e.g., reputation means a lot, but it really is based on feedback loops and is really, really sticky; linear rankings by number hide the fact that it's a bell curve on things like reputation, and linear differences in the middle of the pack don't mean much). But it's still interesting navel gazing, and makes a big difference (I think) in professional and academic careers.
Yesterday, Al Brophy (UNC) posted an update to his alternative to USNWR, Ranking Law Schools, 2015: Student Aptitude, Employment Outcome, Law Review Citations. He uses three variables, entering median LSAT score, employment outcomes (JD required; no school-funded jobs; no solo practitioners), and citations to the school's main law review. That latter one is interesting because it doesn't measure the scholarly influence of the school's faculty, but instead the school's brand for purposes of law professors placing their articles.
Al did two analyses, one using only the student variables (LSAT and employment - the "2 var" rank) and one using all three (the "3 var rank"). His Table 2 shows the relative 2 var and 3 var rank for each school, but his comparison are all as against USNWR. I was interested in "law review lift" versus "law review drag." So I made a list from Al's Table 2, arbitrarily taking a difference of ten or more as the cutoff.
After the jump, you can see a list of schools whose ranking with their law reviews improves by ten spots or more (law review lift) or whose ranking drops by ten spots or more when the law review gets included (law review drag). I'll leave it to you to theorize about meaning, if any.
When does labor law violate the Takings Clause?
In Horne, the Court held 8-1 that the government committed a per se taking when it required raisin growers to set aside a percentage of their crop each year for the government to take and dispose of as it wanted. It was a taking even though: the burden on raisin growers was originally part of a much larger New Deal economic policy; growers could, and often did, get something in return (namely, the net proceeds from the government’s sale of the raisins after certain deductions were taken), and; raisin farmers could have avoided the burden by simply getting out of the raisin market entirely. This got me thinking: what would happen if the Court extended its Horne Takings analysis to another area of massive New Deal economic policy – labor law. And in particular, to the collision of “right to work” statutes with the federal requirement that unions provide non-members of the bargaining unit with the same goods and services they offer to paying members. I’ve written before on just this collision, but if the Court overturns Abood in Friedrichs v. CTA we’ll have a de facto “right to work” regime for all public-sector employees, making this puzzle worth a second look.
Wednesday, July 01, 2015
A Minor, Albeit Fruitless, Suggestion for the Supreme Court's Schedule
As a Canadian, I have long felt that the way people in wintry climes deal with the weather is not so much by displaying unusual hardiness, and more by forgetting utterly each spring just how bad winter is and not remembering it until the next winter rolls around. (The same, I find now, holds true for summers in the Deep South.) I feel rather that way about the end of Term of the Supreme Court each year.
I assume that it would be possible for Congress to redraw the Court's schedule to require it to operate on a continuing basis, with the continual rolling out of decisions, including those in "big" cases, rather than ending each year with a single, overpacked issuance of "blockbuster" opinions. I'm sure I'm wrong on some of the details, but I do believe the Canadian Supreme Court's schedule works closer to that than to the American model. This scheduling change would not do away with all of the aspects of the mighty "end of Term" that disturb me--which, alas, I will not detail here, or at least not right now--but I think it would help. I am less certain that it would be within Congress's power, but it would not be a bad thing either if it required the Court to issue opinions (or to DIG the case, hold it over for reargument, or otherwise deal with it) by a date certain after oral argument in each case, putting the whole institution on something like the ten- or twelve-day deadline regime that Justice White used to insist on for his clerks as they wrote opinion drafts. It might not suit the Justices' plans for Aspen, Vienna, or wherever else they care to spend their summer, but obviously that is of little concern to anyone but them.
Both rules, I think, would mitigate, although hardly eliminate, some of the worst by-products of the Court's intersection with politics. Aside from having other matters on their plates, however, I imagine that the political branches see some benefit to them in having blockbuster releases around the same time that incumbents and challengers are on the hustings, giving them a windmill to tilt at and an occasion for fundraising. If for no other reason, I doubt that they have much incentive to propose or insist on any changes to the current schedule. Too bad!
Although I will decline for now to list the things that disturb me about the end of Term and the commentary that surrounds it, I will make one observation: I find it distressing that much of the academic commentary around the end of Term, including academic commentary written for the public, is aimed at the goal of reducing or eliminating the multiple or alternative meanings suggested by any major decision of the Court--indeed, as I observed in an article last year, at rendering some of those meanings "unutterable"--rather than proliferating them. Of course there are many good or understandable reasons that this should be so, as well as the many bad and understandable reasons for it. But I still find it distressing, and I wish that more academics, when it comes to rendering judgments on contemporary events, operated on something like the semi-apocryphal schedule suggested by Zhou Enlai.
NYU's landuse victory & the "Public Trust" Doctrine
For those of you who love either land-use law arcana or NYU, yesterday brought good news. NYU finally prevailed before the New York Court of Appeals on the question of whether it could develop four parcels of land (two pocket parks, a playground, and a dog run) that had been previously used as public spaces but that had been formally mapped as parts of West Village streets by NYC. Opponents of NYU's "2031 Plan" (an ambitious program of building extra classroom and housing space around Washington Square) argued that, because these four parcels had been used as parks by the public, they had been implicitly dedicated as parks under the "public trust" doctrine, a New York state law doctrine requiring state legislative approval for local governments can convert parkland to non-park uses.
The "public trust" doctrine, so understood, strikes me as a bizarre exception to the most basic principles of local government law, an exception that the state courts stumbled into by conflating local governments with private donors. As I suggest after the jump, it provides a nice illustration of how court-created doctrines, invented purely for policy purposes, outlive the reasons that give them birth. I might be mistaken, however, and I'd welcome any efforts to defend what strikes me as a mindless legal atavism.
Trend in Tax Law Scholarship
Hello to the PrawfsBlawg community! I am a tax law scholar new to PrawfsBlawg blogging, and will explore what I perceive to be an increasingly prominent trend in tax law scholarship. Fields of scholarship, of course, have trends. This makes sense, as scholars exist in a community of thinkers. While each individual may be creating her own scholarship, she is undoubtedly influenced by the community of thinkers of which she is a part. As the community moves in a certain direction, this move inevitably influences each scholar’s own thinking, further solidifying the trend.
This inclination toward trends is of course true in tax law scholarship, as in other fields. For quite some time, tax law scholarship (like many other fields) has been influenced by law and economics. As a result, scholars have spent many years thinking about how to make the tax system more efficient. Now, I believe that tax law scholarship seems to be undergoing a new trend, toward thinking more about tax law through the lens of administrative discretion and administrative law. As recent conferences such as the Junior Tax Scholars Workshop and Law and Society reveal, panels addressing administration of the tax law have become a mainstay at tax law conferences. Indeed, as another indication of this trend, Dan Shaviro recently noted that the NYU Tax Policy Colloquium papers this past year exhibited a somewhat unexpected shift away from economics and toward administration.
What might be explaining this trend? What administrative issues are ripe for examination? Where might this scholarship be going? As someone working on a new paper regarding administrative simplifications and the tax law (with Josh Blank), I am quite interested in these questions. I’ll spend some of my next posts exploring this increasingly prominent trend in tax law scholarship.