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Monday, July 06, 2015

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.    

Empathy, as one dictionary has it, is "the ability to understand and share the feelings of another." It is similar to but not the same as sympathy: "feelings of pity and sorrow for someone else's misfortune." It is possible, even common, to be sympathetic but lack empathy: to care deeply about the suffering of others without actually understanding those others or even making much effort to do so, to be sincerely charitable but also ignorant or condescending.

To pick up on another issue that has been discussed a great deal at The Faculty Lounge recently, empathy is arguably a vital ingredient of good ethnography, and of many other academic disciplines in the humanities and social sciences as well, often including law. Understanding the experiences, perceptions, and perspectives of one's subject can be an important part of one's work. Sympathy, on the other hand, may be largely irrelevant to academic work. I care what an ethnographer can tell me about the perceptions and feelings of his or her subjects. But I should not have to care how the ethnographer him- or herself feels about those subjects. I think it is fair to say that quite a few many contemporary academics believe otherwise: they think that sympathy for the disadvantaged subject is as much an academic duty as understanding. One may perhaps note here that one element of sympathy without empathy--and of valuing one's own sympathy, and especially one's display of sympathy--is the note of self-concern that can creep into such writings.     

To this distinction we must add another: the distinction between empathy and compassion, or (more finely) between sympathy and compassion. Although some definitions treat sympathy and compassion as synonymous, popular understanding of the word seems to distinguish compassion from sympathy by treating compassion as involving not just fellow-feeling for another's suffering, which is sympathy, but the desire and, perhaps, the concrete act of doing something to alleviate that suffering. Some of these terms, it seems to me with respect, are used too interchangeably in Greenfield's op-ed, or in the sources he cites, such as Justice Blackmun's notorious "Poor Joshua!" dissent in DeShaney, in which Blackmun wrote that given arguments on both sides of the case, "I would adopt a ‘sympathetic’ reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging." 

It is possible to argue that empathy is, if not always, then certainly often a required element of judging. It is often valuable, and sometimes legally necessary, to understand a case from the perspective of one or both parties: to understand, for instance, how and why someone experiences some legal stricture as a burden or an injury, or something of the subjective intent of the claimant. It may be particularly important in cases where the judge is either ignorant of relevant facts about that person's experiences, beliefs, and feelings, or even predisposed to view the claimants perspective as alien, irrational, or distasteful. Why do Sikh claimants care so much about wearing a ceremonial knife? Faced with a 24-hour waiting period, why doesn't a pregnant woman seeking an abortion simply rent a lovely hotel suite for a night and come back refreshed in the morning? Decisions in these cases are aided by making an effort to understand the perspective, factual and subjective, of the claimant. 

Greenfield, who argues for the value of empathy, implies that it is unnecessary in "cases where the solution can be discerned by sheer force of intellect." If the legal rule says the speed limit is 55 miles per hour, as opposed to saying that one must drive reasonably under the circumstances, no empathy is required to apply it. Even cases involving "objective" standards, such as driving reasonably, may require only technical skill at understanding the relevant elements that go to make up reasonableness, without anything more. I think empathy can be of value in even those cases, in various ways. Not always, surely. But it may guide one's sense, if not of how the legal question should be decided, then of how the decision's consequences will play out for the party, or of how the party is likely to react and respond to the decision. It is possible, although I can imagine arguments to the contrary, that empathy may also be useful in forming or modifying objective legal standards such as reasonableness. 

Legal decisions can be aided by empathy. But empathy does not decide those cases. Most important, it does not decide them in favor of the subject of the empathetic exercise, nor in favor--to underline the key distinction made above--of the more sympathetic party. One may empathetically understand, and from that perspective treat as significant, the experience of a significant burden on the religious exercise of an individual who owns a large crafts-store business and who faces a legal mandate with respect to the treatments covered by his company's health insurance policy. And yet, whether or not one also feels empathy or sympathy toward employees who are themselves affected or burdened by the exemption sought by the business owner, one may still conclude that the claim for an exemption loses. The employer may lose not because the employees seem more sympathetic, or because one also understands their burden, but for various legal or policy reasons that are take precedence over the judge's empathy: for example, because the statutory term "person" cannot be understood to reach corporate entities or for-profit businesses, or because no exemptions should be available from generally applicable policies, or because the government has met the burden of showing the compelling nature of its own interest and that it is as narrowly tailored as possible, or because economic efficiency interests require a ruling for the government, or because, regardless of the judge's empathetic exercise, he or she concludes that the court lacks jurisdiction in the case. One's exercise of empathy may even lead one to conclude that, whether under the law or as a general matter of justice, one now understands that the claimant's conduct was highly unsympathetic, and/or worthy of condemnation and punishment. For purposes of legal interpretation, to understand all is not to forgive all.

It is also important to note here the regularity with which empathy and sympathy are confused or poorly thought out in talking about things like judges' roles or what qualities a judicial nominee should possess. If I am right that empathy can help a judge better understand the claims, cases, and parties before the bench, then I think it is a useful quality even for those judges who believe that the law itself ultimately requires calling "balls and strikes"; it may still help one understand the shape and size of the strike zone, so to speak. When many people use the word "empathy" in talking about judicial nominees, however, they really mean that they want those judges to be sympathetic or compassionate. They may differ among themselves concerning the scope of the judge's discretion to act compassionately, in the number of cases that must perforce be decided in a formalist or legalistic fashion. To some degree, however, they believe that where the judge has discretion, it should be used in favor of the more sympathetic party--that the judge has a duty in such cases to act compassionately toward that party, to comfort the afflicted (and, perhaps, to afflict the comfortable).

Many people were clearly thinking in these terms about the nomination of Sonia Sotomayor. And certainly this is the import of the statement from Justice Blackmun in his DeShaney dissent that I quoted above. To act as Blackmun, and many other public commentators, demand frankly does not require much empathy at all. Neither pity nor compassion necessarily entail all that much understanding of the object of the sympathy. Many a Jellyby has felt or acted sympathetically toward some group readily identified by convention or common sentiment as a suffering or subaltern group, while displaying little interest in experiencing that group's life and feelings as his or her own. It takes sympathy or sentiment, not deep understanding, to write "Poor Joshua!" And if I am right that empathy involves understanding some claimant but does not compel a ruling in favor of that claimant, then I will go out on a limb--a small one, I think--and suggest that if faced with a choice between a generally empathetic judicial nominee and a generally sympathetic or compassionate nominee, many people would prefer the latter to the former. Nor am I going out on much of a limb, I think, if I add that they would feel this way even if that nominee was not especially empathetic, but was instead condescending, or politically programmatic, or moved by noblesse oblige, or simply adequately informed as to mainstream modern elite views about which groups should be understood as deserving of sympathy. On this view, understanding the unfortunate is nice, but pitying and helping them is far more important. 

In my view, there are still good reasons to favor empathy in judging even if that judge feels compelled to rule against the sympathetic party. It can matter, I think, how one tells someone that he or she has lost the case. Ideally, we do not want losers to reject the justice system altogether, nor--this may be a mildly controversial point, but I think even those who would controvert it would at least agree that it is sometimes true--do we want groups that are on the cusp between liberal and illiberal to become fully illiberal, rejecting entirely the notion of participating within liberal society, or to encourage illiberal groups to become still more radicalized. This is one argument in favor of religious accommodations (how far in favor is another matter), and against a pro-"martyrdom" approach to Free Exercise law, that I think has received too little attention. (I do make the point briefly in this book.) At a more mundane level, even if we are just interested in a marginally greater degree of social peace, or in having the loser comply with the judgment and thus ensuring final settlement of the controversy, we may want to speak to the loser in a way that acknowledges their perspective rather than treating it ignorantly or with contemptuous indifference.

While it is difficult to write a seriously empathetic opinion, for or against the claimant, it is much easier to write a sympathetic--a merely pitying--opinion. For what it's worth, I agree with Greenfield that the section of Justice Kennedy's opinion in Obergefell treating the facts of these and any more cases is better than that: it exhibits at least some empathy, not just sympathy and/or compassion. And it is at least fair to say that Chief Justice Roberts's opinion exhibits less visible sympathy for the same-sex marriage claimants than it could or should have.

I would add to that, however, these qualifications:

1) I do not know how well or poorly Roberts actually understands the claimants' experiences and perspective, how empathetic he actually is or was toward those claimants. That he votes against recognizing a constitutional right here is not strong evidence that he lacks empathy toward the claimants. Empathy, I have suggested, entails understanding a person's claim, not ruling in favor of it. It is perfectly possible to show genuine empathy toward a claimant but still conclude that the Constitution contains no such right, or that one should avoid creating new substantive due process rights, or that democratic change is better than constitutional entrenchment, even with respect to claims whose compelling nature one fully understands.

2) It is arguable that, regardless of the legal conclusions drawn by Roberts and the other dissenters, a stronger empathetic sense toward the claimants could or should have led them to write their dissents differently, acknowledging the powerful nature and meaningful experiences behind their claims more strongly than they did and defending the value of their legal views notwithstanding the claimants' own experiences and perceptions.

3) Empathy need not be exercised only toward the "sympathetic" parties, as one judges that question. It is relevant for understanding more deeply the interests, experiences, and likely reactions of all the stakeholders in the case. I do not think this is especially true of Justice Kennedy, but it is certainly true that some public commentary displays little deep understanding of the experiences and perspectives of some opponents of a constitutional right to same-sex marriage. That one disagrees with them does not mean one cannot or should not attempt to genuinely understand them, as opposed to merely drawing swift and stereotyped conclusions about their thoughts and feelings. The result of an empathetic exercise may be that some of those opponents come off looking worse--more dishonest, or holding views that from the perspective of the empathetic person are more deserving of condemnation than they initially thought. Others among those opposing the claimants' side might come out looking better; at least, one might better see the complexities, varieties, and ambiguities within that opposition. All this might better help one speak to that side as well, reducing, however marginally, the risk of turning those groups still more illiberal or encouraging them to resile from the social contract altogether. Or it might help the judge to understand better all the issues and competing stakes and values involved in the next set of cases that come up, such as those involving religious accommodation, or polygamy, or something else. In a divided, pluralistic, and complex society composed of groups and individuals with a huge number of different views, emotions, arguments, and reactions, most of whom at least think they are acting in good faith and for the right, empathy is rarely wasted.   

Finally, I would add, somewhat more speculatively, my sense that these issues--the nature of and differences between empathy, sympathy and compassion--can offer some link between the substance and the style of a judicial opinion. I suggested above that it is possible to be sympathetic or compassionate without being truly empathetic. I have also written elsewhere bemoaning the poor writing of Justice Kennedy's majority opinion. (Many people have voiced that opinion, including a number of staunch supporters of same-sex marriage. I suspect many more legal academic supporters of same-sex marriage feel the same, but feel constrained not to say so publicly. They do not want to look unsympathetic.) I also suggested that Kennedy's opinion displays at least some empathy, not just sympathy or compassion.

But that is a question of degree. And it may be that the evident weaknesses in Kennedy's writing in Obergefell are related to a tendency on his part to possess or display more sympathy than empathy. Writing that is sympathetic or compassionate, but lacking in true empathy--in a serious effort to experience the claimant's experiences and perceptions as one's own--may be more likely to be somewhat superficial, to lack real depth. It may display a higher degree of sentimentality. That may be especially true of those who care especially about the conspicuous display of sympathy--a common trait in our highly sentimentalist society, one in which phrases like "I think..." are often tellingly reworded as "I feel...," in which feelings are often treated as creating moral claims on others and are frequently prioritized or valorized more highly than reasoned judgments. Although I don't doubt the sincerity of Kennedy's sympathy on these issues, I think it is fair to say that his writing also gives the sense of his strong desire to be seen as sympathetic. 

This is not all bad. Empathy, especially universal empathy, can be paralyzing. (To quote a song by James McMurtry: "He saw both sides of everything/And found he could not move.") Sympathy and compassion may tend to produce more concrete action than empathy alone; certainly compassion ought to, although most of us know people who are highly, publicly sympathetic but do little or nothing about it. Academics--traditional academics, anyway--may be more concerned with contemplation or understanding than with action, and more disdainful of shallow sympathy or sentimentality. Claimants themselves can hardly be blamed for caring more about winning than about being "understood." 

Still, there is some value in getting our terms right and thinking through these issues with some care, especially as long as they figure in judicial nomination talk. The most important conclusions, I think, are these: 1) Many advocates of judicial empathy are actually more interested in judicial sympathy and compassion, provided that the nominee is sympathetic toward the right people. 2) Empathy, properly understood, is a valuable quality in judicial nominees. Properly understood, however, empathy does not require that the judge rule in favor of the more "sympathetic" claimants. 3) Empathy may be especially valuable not just in helping judges to understand the claims before them, but in helping them to speak to the parties. An empathetic opinion may be especially valuable in speaking to the losers in the case. It can help increase the degree of compliance with the judgment, give judges a better sense of the stakes in this and future cases, and encourage losing groups, especially illiberal ones, to stay within civil society rather than becoming more illiberal or radicalized. 4) Judicial empathy may be especially important in cases involving religion, or other groups whose beliefs, reasons, motives, and strong feelings are not "publicly accessible." 5) Judicial sympathy, without real empathy, may result in more sentimentalist judicial writing. 6) Nevertheless, for those who understandably care more about getting the "right" judgment than about getting the best or deepest judicial opinion, there are reasons to value sympathy more highly than empathy. But they should not be surprised if, along with the outcomes they want, they also see an uptick in shallow or preening opinions. 

Posted by Paul Horwitz on July 6, 2015 at 09:56 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, July 05, 2015

"The Constitutional Legacy of William Rehnquist"

Here is a new, short book from West (edited by Brad Wilson) that includes my chapter on Rehnquist's religious-freedom and church-state work:

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!

Posted by Rick Garnett on July 5, 2015 at 12:35 PM in Rick Garnett | Permalink | Comments (0)

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?


        I am thankful to Kristin Hickman for commenting on my prior post because I think that the increasing focus by tax law scholars on administrative law and administrative discretion owes at least in part to her important, pioneering work.  Kristin has been writing persuasively for years about how administrative law really does apply to tax (and how tax practitioners and administrators alike historically failed to fully accept this), a fact that (as Kristin pointed out) the Supreme Court recently acknowledged in Mayo Foundation. Kristin’s diligent exploration of how administrative law applies to tax, and the Supreme Court’s (as well as other courts’) ultimate acceptance of this fact, has set the stage for the U.S. tax law community’s long overdue grappling with tax and administrative law.  Kristin hasn't been working in isolation, of course. Tax scholars such as Leandra Lederman, Steve Johnson, and Bryan Camp, to name just a few, have engaged in groundbreaking work that underscores the importance of studying tax administration.

        Separately, the topic of administration of the tax law (whether justifiably or unjustifiably) has been the subject of some major headlines as of late.  The most notorious recent example, of course, is the seemingly never-ending coverage of the IRS’s purported targeting of Tea Party groups.  More generally, the IRS’s administrative budget is frequently on the chopping block, yielding somewhat constant hand-wringing about how the nation’s tax system will continue to be administered. 

        Finally, administrative discretion has been quite important on the political stage in recent years outside of the tax context.  Most notably, the Obama Administration’s DAPA program, which inspired extensive scholarly and political debate, still hangs in the balance after recent judicial decisions.  DAPA, of course, is only the latest flashpoint of debate regarding the ability of administrative agencies (whether or not at the direction of the President) to create guidelines that limit their enforcement discretion.  As I have argued recently, these instances may inform tax nonenforcement, and vice versa.

        While the above suggestions of course are not the only, possible explanations for the U.S. scholarly trend toward tax law and administration (and commentators have already helpfully offered more), these factors likely play at least some role.  As headlines continue to pop up regarding either administration of the tax system, or administrative discretion generally, I believe that the trend will only increase.  Stay tuned for future posts in which I will explore where the trend might (or should, in my view) be going. . . .


Posted by Leigh Osofsky on July 5, 2015 at 10:43 AM | Permalink | Comments (1)

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 10+ 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.

20+I should note that I ran my little exercise by one of the toughest critics of empirical work I know, not for an endorsement, but to see if it was okay to "bin" the data into that 10+, 20+, and 30+ differentials between Al's 2 variable and 3 variable results. My interlocutor (who will remain nameless to protect the innocent) said that binning was okay if there was some theory behind it, but his or her very, very fulsome and thoughtful reply to my question reaffirmed my belief that data without judgment is blind (and judgment without data is empty, to be fair, in each case paraphrasing Kant). The big issue is whether just a few outliers are responsible for the outcomes (which you can see by eyeballing the scatter plots). That may be true here. So with that disclaimer, and recognizing this is a blog post, for God's sake, and not a peer reviewed research paper, here's what I came up with.

If you plot law review "lift (drag)" of 10+, you come up with a positive correlation to law review volume number (.339).  See chart above the break. 30+

If you do the same for "lift (drag)" of 20+ and 30+, you come up with even higher correlations, .42 and .55, respectively.  (See above left and right.)

What do I conclude? Probably nothing more than common sense would tell me: "brand" makes a difference; it takes a long time to develop one; and once you have it established, it sticks around enough to bias other data.

Posted by Jeff Lipshaw on July 4, 2015 at 03:39 PM in Article Spotlight, Life of Law Schools, Lipshaw | Permalink | Comments (1)

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?

This isn't a new question, but I'm asking it anew because of this passage from Justice Scalia's majority opinion for Michigan v. EPA, which rebuked EPA for not considering costs when regulating power plants under the Clean Air Act:

Section 7412(n)(1)(A) directs EPA to determine whether "regulation is appropriate and necessary."  (Emphasis added.)  Agencies have long treated cost as a centrally relevant factor when deciding whether to regulate.  Consideration of cost reflects the understanding that reasonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions.  It also reflects the reality that "too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems."  Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 233 (2009) (Breyer, J., concurring in part and dissenting in part).  Against the backdrop of this established administrative practice, it is unreasonable to read an instruction to an administrative agency to determine whether "regulation is appropriate and necessary" as an invitation to ignore cost.

Sounds reasonable.  And puzzling.  Just what work is "established administrative practice" doing here?

Does established administrative practice shed light on Congress's intent?  It isn't hard to imagine Congress incorporating agency practice into statutory law, but I doubt that's what's going on here.  I'd want to know about Section 7412's legislative history , something Justice Scalia doesn't (and wouldn't) offer.

Does established administrative practice suggest a suspicious shift in agency decisionmaking?  When agencies change course, they should explain themselves.  But that's not what's going on here either.  Justice Scalia doesn't tell us that the EPA has "long treated cost as a centrally relevant factor."  In fact, he doesn't tell us which agencies --- some? all? some, some of the time? all, some of the time? --- conduct cost-benefit analysis as a matter of course.  (We don't even get a citation to prove this is a thing that happens.)  And besides, Justice Scalia hasn't been a fan of constraining agencies to follow their precedents. 

The last point answers my next question.  Does established administrative practice operate of its own force to constrain the EPA?  We might imagine a rule of administrative law that constrains an agency to follow the common law established by its fellows.  But that surely is not what Justice Scalia means.

So, it must be that established administrative practice tells us what's a reasonable interpretation of the statute at Chevron Step Two (or "under Chevron," for those who think Chevron has one step).  Yes, that's it: "Against the backdrop of this established administrative practice, it is unreasonable to read an instruction to an administrative agency to determine whether 'regulation is appropriate and necessary' as an invitation to ignore cost."  Puzzle solved.

But how satisfying is the solution?  Maybe we're not giving agency practice independent force when we use it as the "backdrop" to decide what's reasonable statutory interpretation under Chevron.  But we're not far off.  Reasonableness, after all, is a basic requirement of agency decisionmaking. 

I don't want to read too much into Michigan v. EPA in this regard.  Chevron doctrine, as this Term has shown, shuffles and re-shuffles.  But I do want to suggest that if we're going to measure agency reasonableness by "established administrative practice," we take more care to prove a practice exists and to describe its boundaries.  And if "established administrative practice" actually means "administrative common law as developed by courts," then we should say that instead.  (Interestingly, the Reporter's syllabus for Michigan v. EPA says "established administrative law," not "established administrative practice.")

With that, I'll say thank you to Howard and to everyone in the PrawfsBlawg community for the opportunity to converse this past month.  Many thanks, and warm regards.     



Posted by Seth Davis on July 3, 2015 at 02:51 PM | Permalink | Comments (0)

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.

One outcome of Glossip, which is shocking and upsetting to Hawaiians, is that two Hawaiian inmates, housed at a private facility in Arizona, are now realistic candidates for execution--for a crime committed during their incarceration in a private institution, run by CCA, on the mainland. The Civil Beat reports:

Because the Supreme Court on Monday upheld the use of a controversial drug that happens to be used in Arizona executions, the high court may have set the stage for Miti Maugaotea Jr. and Micah Kanahele to die from the effects of a drug whose use wouldn’t even be a consideration in their home state.

Kanehele and Maugaotea both face trial for the 2010 murder of another Hawaii prisoner, Bronson Nunuha. Trial is set for August of next year, and prosecutors will seek the death penalty, an official with the Pinal County (Arizona) Attorney’s Office confirmed Tuesday.

. . . 

The crimes that Kanehele and Maugaotea are accused of are horrific. Media accounts say their alleged victim was found stabbed 140 times, with the initials of Kanehele and Maugaotea’s prison gang carved into his chest.

But both inmates are only incarcerated in Arizona because Hawaii found outsourcing its prison needs to CCA a more cost-effective option than building more prisons of its own. While they and others are there, are we comfortable with them being subject to the penalties of Arizona — even a punishment so singular and controversial that we took the highly uncommon step decades ago of outlawing its use in Hawaii?

Our decision in 1957 would suggest we are not. As Chang said last year, Hawaii is a society that does not put people to death, no matter how heinous their crimes. And as Justice Breyer wrote on Monday, the death penalty may well violate the very basis for our democracy — the U.S. Constitution.

It may be too late for Hawaii to save the unfortunate lives of Kanehele and Maugaotea, whose previous violations and alleged brutal murder of Bronson Nunuha have set in motion wheels of justice that may be beyond this state’s control.

But if we really believe in the values that we claimed in 1957, we should think hard about putting Hawaii inmates in facilities where further crimes might result in a penalty we would never have imposed ourselves. Gov. David Ige, Attorney General Doug Chin and director of the Department of Public Safety Nolan Espinda should use Monday’s controversial Supreme Court decision to examine anew our options under the agreement with CCA and determine whether punishment by death was intended to be part of the incarceration bargain.

This grim situation raises two issues for me. First, the idea that transplanting, importing, and exporting inmates without repercussion (beyond the presumed cost savings) is immensely problematic. Hawaii has a long and disturbing history with CCA which, despite a well-oiled advertisement machine touting their presumed sensitivities toward the heritage of their native Hawaiian inmates, have treated them abysmally, culminating in a huge scandal of sexual abuse of female inmates by the guards. As informants in Hawaii told me, the guards find the inmates difficult to tell apart--both by sight and by name, because of the Hawaiian alphabet--and the entire situation takes them away from contexts that are vital in Hawaiian life, such as proximity to the ocean and to the larger family network. Of course, it also turns out that it's not that cheap to export the inmates, so the touted benefits aren't that great, either. I really hope that David Ige follows up on Abercrombie's best intentions and figures out a solution for the problem--Hawaii doesn't have very high crime rates and can build on a strong traditional network of mutual aid to create amazing rehabilitation programs on the island if it so wishes. 

And second, as in the case of same-sex marriage before Obergefell, the state-by-state solution for the death penalty does not insulate some jurisdictions from the punitive decisions of others (and vice versa). While the depressing result in Glossip does not bode well for nationwide abolition, and while I still think that abolition will come, in my lifetime, from an aggregate of local decisions, this slow and low-key process has some unfortunate results.

On this optimistic note, I thank Howard and everyone else for their kind hospitality, and look forward to my next stint with Prawfs. In the meantime, find more about corrections, in California and nationwide, at my permanent virtual home

Props to Edi Kinney for drawing my attention to this.

Posted by Hadar Aviram on July 2, 2015 at 02:22 PM | Permalink | Comments (0)

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 DaimlerSee 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.

Posted by Megan La Belle on July 2, 2015 at 02:14 PM in Civil Procedure, Intellectual Property | Permalink | Comments (0)

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.[1]  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.

To qualify for detention in Minnesota, an individual must be found to be “highly likely” to engage in harmful sexual conduct.  Getting out required a showing of no danger at all, which the court rightly concluded was too high a bar.  The court also criticized Minnesota for not providing its evaluators with adequate training on statutory and constitutional standards.  What should that training have looked like?  What constitutes a sufficient justification for an indefinite deprivation of liberty?

Minnesota’s “highly likely” standard may not be hard to meet: one study found that the public believes 74% of sex offenders will re-offend, whereas the best estimates suggest an actual recidivism rate of 20% or lower.[2]  And “highly likely” is inherently malleable.  If you were told getting onto an airplane that it had a 20% chance of crashing, you would think that probability was much too high.  The same thinking can easily affect judgments about crimes as abhorrent as child molestation.  Any chance is too high, one might reason.

I have previously argued that we should require a threshold probability of recidivism in the ballpark of 75% or “much more likely than not.”[2]  This conclusion flowed from a balancing of costs and benefits (and lots of assumptions), but it implies that the state must establish that the risk posed by a particular individual roughly matches the generally exaggerated fears of the public.  This black hole should be reserved for the worst of the worst, even if it comes with a meaningful escape hatch.

[1] Karsjens v. Jesson, Civ. No. 11–3659, 2015 WL 3755870 (D. Minn. June 17, 2015).

[2] Fredrick E. Vars, Delineating Sexual Dangerousness, 50 Hous. L. Rev. 855 (2013).

Posted by Fredrick Vars on July 2, 2015 at 01:34 PM | Permalink | Comments (0)

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.

Image.ashxYesterday, 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.

Law review stats enhance student stats ten spots or more
Florida State
George Mason
Lewis & Clark
San Diego
Indiana - Indianapolis
William Mitchell
Michigan State
Cleveland State
Santa Clara
New York Law School
Ohio Northern
Widener (Delaware Journal of Corporate Law)
San Francisco
Law review stats drag student stats ten spots or more
Arizona State
Georgia State
New Mexico
New Hampshire
Florida International
South Dakota
Northern Illinois
North Dakota
Samford (Cumberland)
Nova Southeastern
Texas A&M
Oklahoma City
Arkansas-Little Rock
Florida A&M

Posted by Jeff Lipshaw on July 2, 2015 at 08:11 AM in Article Spotlight, Law Review Review, Life of Law Schools, Lipshaw | Permalink | Comments (0)

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. 

The first place I saw a takings argument in this context was in Chief Judge Wood’s dissent in Sweeney v. Pence. As Wood saw it, this collision constituted a taking because the government was compelling one private party to give their property to another with neither a public purpose nor just compensation.[1] The majority engaged in a takings analysis but found a public purpose (it being whatever motivated the duty of fair representation) and just compensation (in the form of exclusive representation). Horne, however, seems to interject itself on both sides of this argument: (1) it is likely that a majority of the Court would find the labor law regime itself to have a public purpose, in the same way the Horne majority assumed the New Deal agricultural cartel did, but (2) benefits other than the fair market value of the thing taken does not typically count as just compensation, which suggests the “benefit” of exclusive representation the majority in Sweeney relied on will not suffice.

Statutory Refresher

Section 7 of the NLRA gives workers the right to “bargain collectively through representatives of their own choosing.” Yet while one might read section 7 and think it means employees are free to choose how to organize themselves for purposes of bargaining, the courts have not read it that way. Instead, over time, the Court has enforced a system of exclusive bargaining representation. If employees want to bargain collectively, then all employees in that bargaining unit must be represented by a single union. And conversely, if a union wants to represent its members collectively in negotiations with those members’ employer, the union is required to fairly represent all members of that bargaining unit, even those who are deeply opposed to union representation.

Whether exclusive representation should have been read into the NLRA is questionable but irrelevant: courts have required it. As a result of this government-imposed exclusive representation regime comes an equally government-created free rider problem. Nobody is forced to join the union and pay the corresponding member dues but non-union members benefit from a variety of goods the union provides. As a result of this problem, unions and employers have had the right, through the private negotiation of collective bargaining agreements, to require non-members to pay a service fee that covers the cost of (and only of) the union’s collective bargaining activities. This is not to say unions will always ask for non-members to pay (again, it depends on whether the provision for such payments is bargained for in the collective bargaining agreement with the employer), but the option is there.

Now enter state right to work laws. Such laws typically include a provision that prohibits employers and unions from making contracts that require non-union members of the bargaining unit to pay any dues, fees, assessments, or other charges of any kind or amount to the union. In other words, in right to work states, to take advantage of their section 7 right to bargain collectively through representatives of their own choosing, a worker’s union has to not only take on the burden of exclusive bargaining representation but must do so while being compensated by those non-members for its services is statutorily prohibited.

Taking in Horne and after

The first question is whether the government is actually taking property from the union. Here the answer seems to be yes, as the setup is reminiscent of the one in both Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003) and to a large degree Horne itself. The government is compelling one private party (the union) to donate its private property (money) to another private party (non-members).

One possible out here is to say the government is not taking the union’s money outright but instead simply forcing it to provide services, in which case a regulatory taking analysis may be more appropriate. But as I understand it, unions often outsource the provision of at least some services to third-parties. In those cases, the right to work law entails the direct taking of dollars. Regardless of whether the setup requires the union to transfer either dollars or services to another private party, if we assume a public purpose, where is the just compensation? 

The majority in Sweeney thought the “benefit” of exclusive representation compensation enough but Horne seems to cut against that position. First, in response to the government’s argument that general regulatory activity can constitute just compensation for a specific physical taking, the Court found its “cases … set forth a clear and administrable rule for just compensation … just compensation normally is measured by the market value of the property at the time of the taking.” If the government wants to take the union’s money to deal with a government-created free rider problem, just compensation will not come in the form of something like exclusive representation, especially when the fair market value of the taking is clear. 

In Horne, the government also argued that the raisin requirement was not a taking “because raisin growers voluntarily choose to participate in the raisin market.” As far the government saw it, if they didn’t like the requirement, they could grow something else. The Court did not approve, finding that like in Loretto, where it rejected the argument there was no take because the landlord in question could avoid it by simply ceasing to be a landlord, “property rights ‘cannot be so easily manipulated.’” Something similar is arguably happening in the labor context. Employees have a right to bargain collectively. If they want to do so through a union, that union is required by the government to be the exclusive bargaining representative of the entire bargaining unit. That is the union’s job. The union, like landlords, also have property. It seems unavailing to say that if the union wishes to keep doing its job it must give up some of its private property to non-paying non-members.

That all said, the best response to a takings argument is also found in Horne, but the Chief Justice’s opinion for the majority moves through it so quickly that its potential utility is unclear. In making the above argument the Court distinguished Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), where the Court held that the EPA could require companies manufacturing things like pesticides to disclose certain health and safety information about their products as a condition of receiving a permit to sell those products. The manufacturers thought the disclosure requirements a taking of their trade secrets but the Court did not find it so because they received a “valuable Government benefit” in exchange. That is, a license to sell dangerous chemicals. The Court thought Ruckelshaus did not apply in Horne because while selling raisins in interstate commerce could be subject to reasonable regulation, it was not a “special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.” Raisins, the Court found, “are not dangerous pesticides; they are a healthy snack” and “[a] case about conditioning the sale of hazardous substances on disclosure of health, safety, and environmental information related to those hazards is hardly on point.”

The question we are left with seems to be: exclusive bargaining – healthy snack or dangerous pesticide? I’d be pretty surprised if the Court thought it the latter.

[1] Disclosure: I clerked for Judge Wood when Sweeney was argued. 

Posted by Heather Whitney on July 2, 2015 at 08:00 AM in Employment and Labor Law | Permalink | Comments (0)

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.   

Posted by Paul Horwitz on July 1, 2015 at 03:18 PM in Paul Horwitz | Permalink | Comments (3)

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.

Consider two ways in which the "public trust" doctrine violates core principles of local government law.

First, it is commonly assumed that local legislative power is normally inalienable. Ordinarily, one local legislature cannot tie the hands of its successors, so that one city council's decision to create a park should be up for grabs by the next city council. But the "public trust" doctrine allows one city council to tie its successor's hands by saddling it with parks that require the permission of Albany to be sold.

Consider, second, the principle of home rule. For decisions largely affecting the voters of New York City, the legislature elected by those voters should be responsible. But the "public trust" doctrine requires the City to go hat in hand to Albany where a bunch of Republicans from Cortland County or some other upstate venue get to decide the fate of a dog run in Washington Square, NYC.

This doctrinal oddity of "public trust" was conceived in the late 19th century century by analogizing local governments' lands dedicated to public use ("streets, wharves, cemeteries, hospitals, court-houses, and other public buildings," in the words of Meriwether v. Garrett, 102 U.S. 472, 513 (1880)) to the corpus of a charitable trust managed by the local government as trustee on behalf of the public. Just as a trustee cannot simply sell off the assets of the trust and use it for non-trust purposes, so too, the local government cannot dispose of public lands as it sees fit without express authorization from the state legislature.

The analogy, however, is hollow. Cities create and maintain assets like parks with money appropriated from past and current taxpayers. The past taxpayers have no more reason to bind the current ones with respect to parkland anymore than with, say, police squad cars or garbage trucks. Local governments are not "trustees" except in a very remotely metaphorical sense. They are instead elected bodies assigned to make tradeoffs between parks and other goods like (say) education. If they cannot be trusted to do so with parks, then why should they be trusted to do so with taxes, budgets, bonds, collective bargaining agreements, and a host of other matters involving public investment?

Behind this "public trust" analogy, I suspect, lay the fear of nineteenth century upstate Republicans that Tammany Hall Democrats would otherwise sell off city assets and use the assets for corrupt purposes. Today, however, using Albany to clean up the NYC City Council is like using a doormat to wash your dinner plates. As a full-time salaried body policed by a squeaky clean Conflict of Interest Board headed by Columbia's own Richard Briffault, NYC's council is pretty clean, while the state Assembly and Senate are part-time bodies with little ethical policing that are notoriously corrupt.

The public trust doctrine, in short, seems to me to be a pure legal atavism, a throw-back to an earlier period lacking any conceivable current justification but chugging along nonetheless and causing mischief as it chugs. (It is currently slowing down the re-development of Willets Point).

But maybe, biased as I am in favor of NYU's project, I am missing some important justification for this doctrine and the special protection for parks that it provides?

Posted by Rick Hills on July 1, 2015 at 01:01 PM | Permalink | Comments (4)

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.

Posted by Leigh Osofsky on July 1, 2015 at 10:29 AM in Tax | Permalink | Comments (4)


It is July already, which means we all have to start thinking about how far behind we are on our summer projects.

But it also means we get to welcome a new set of guests. For July, that means returning players Jeffrey Lipshaw (Suffolk) and Robin Effron (Brooklyn) and first-timers Leigh Osofsky (Miami), Catherine Smith (Denver, whose amicus on the constitutional rights of children was cited by the majority in Obergefell), and Heather Whitney (Bigelow Fellow, Chicago).

And we say goodbye and thank you to Corinna, Hadar, Seth, Aaron, and Megan, who helped maked June one of our busiest and most-visited months. They may be sticking around for a few days for a few final words.

And another reminder that we are always looking for guests, so please email Paul or me if you are interested in guesting in the coming school year.

Posted by Howard Wasserman on July 1, 2015 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Marriage and Other Favored Unions

So we have a fundamental right to same-sex marriage. In the most obvious way, the Court’s holding was good: if the state is going to privilege a particular association (here, marriage), it should not discriminate against persons who try to take advantage of it. Fair enough. But in another way both the government’s favored treatment of marriage and especially the majority’s decidedly not-postmodern love letter to that particular form of association (Alito’s comment that the majority’s vision of liberty “has a distinctively postmodern meaning” notwithstanding) should give us cause for pause. There is another area where the state has favored a particular type of association over others: labor unions, which have been favored over other types of worker organizations. That preference has not worked out well for workers; we would do well to think more about whether the story of state preference for marriage will turn out the same.


Associations of Workers and the NLRA

Congress passed the National Labor Relations Act years ago and, with it, enacted a particular vision of what worker associations should be and how they should operate. That vision included both (1) exclusive representation[1] and (2) a commitment to the view that the interests of workers and employers are fundamentally opposed and antagonistic.  

At first the NLRA benefited workers (if rapidly increasing unionization rates are any indication), but over time that has largely ceased to be the case. The government restricted covered labor organization activity and the Act stifled the ability of covered workers to develop innovative forms of worker organizations that could better help them achieve their particular interest. One example of this stifling (and one that I discuss in a forthcoming article) comes out of the Act’s prohibition on company “support” of labor organizations. This ban has in turn dramatically limited the development of mutually beneficial collaborations between workers and companies looking to sell themselves to consumers as “conscious capitalists.” As a result of the Act’s narrow vision of appropriate worker organization, it is not surprising that innovative forms of worker organization (the Fair Food Council being just one example) have only occurred among workers who are not covered by the NLRA at all.  

 In short, when the government favors a particular vision of worker association – even with good intentions – it also frustrates experimentation with other forms – forms that may in fact be better for at least some workers.   

Associations of Individuals and Marriage

 Something similar might be said about marriage. Like the vision of worker organization demanded by the NLRA, marriage (including same-sex marriage) is but one of the many forms romantic and family associations can take. And like a traditional labor union, a traditional marriage (same-sex marriage included) will work better for some than others. The government, however, does much to encourage traditional marriage. Spousal privilege and military, social security, and immigration benefits being just a few examples. And these benefits, like all incentives, serve to promote marriage over non-matrimonial forms of romantic and family association. Those benefits alone might already have been enough to stifle experimentation with other forms. But the majority opinion in Obergefell, if its love letter to marriage is read and its views adopted, imposes an arguably different and more potent type of cost on would-be experimenters: stigma. As the majority sees it, marriage is of “transcendent importance” and “promise[es] nobility and dignity to all persons”. It is marriage that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Without it, “children suffer the stigma of knowing their families are somehow lesser.” (emphasis added). Given all this, a reader would think marriage the sole means by which we come to flourish in relationships – that families and romantic relations structured without it truly are lesser. On that view, failure to get on board with the institution really does deserve to be stigmatized.  

For those who think the Court’s substantive view on marriage’s importance right and the government’s subsequent promotion of it good, this all won’t seem bad. But for those who think the highest ideals of love and family might be better achieved – at least for them – through other forms of association, the majority’s reification of the centrality of marriage to the good life will strike them as yet another barrier to a future where those ideals can be realized. As with the story of worker associations, it might take us a long time to realize that the government’s “help” of our association of choice today won’t actually be so helpful tomorrow.



[1] A few argue exclusive representation was not required from the start but it certainly was treated as such soon afterward. Either way, my point is the same.  

Posted by Heather Whitney on July 1, 2015 at 07:00 AM in Constitutional thoughts, Culture, Current Affairs, Employment and Labor Law, Law and Politics, Workplace Law | Permalink | Comments (0)

Flesch Reading Ease and Flesch-Kincaid Grade Level

That’s what this post is about. No Obergefell. No Greece. No ACA. Short sentences rule. I learned about this recently. We were reviewing standard agreements. Unknown

I looked at Flesch’s own website. That's him over there. He rated average readability scores.

        Comics  92

        Consumer ads in magazines  82

        Movie Screen 75

        Seventeen 67

        Reader's Digest 65

        Sports Illustrated 63

        New York Daily News 60

        Atlantic Monthly 57

        Time 52

        Newsweek 50

        Wall Street Journal 43

        Harvard Business Review 43

        New York Times 39

         New York Review of Books 35

        Harvard Law Review 32

        Standard auto insurance policy 10

You can have Microsoft Word calculate this for you. You need to complete the spell and grammar check. I did it to my new article. It is called “Lexical Opportunism and the Limits of Contract Theory.” The University of Cincinnati Law Review is going to publish it. Its Flesch reading ease score was 38.3. It ranked at 12th grade. That is better than the Harvard Law Review! It is about the same as the New York Times

This blog post rates 76.8. It is at the reading level of somebody in the 4th grade. It is like reading Movie Screen or a consumer ad. But not Green Eggs and HamGreen Eggs and Ham gets 100 in reading ease. It is 0 on the Flesch-Kincaid Grade Level.

        I do so like green eggs and ham!

        Thank you, thank you, Sam-I-am.

Posted by Jeff Lipshaw on July 1, 2015 at 06:05 AM | Permalink | Comments (1)