Train Smarter

Elizabeth Chika Tippett, Harassment Trainings: A Content Analysis, __ Berkeley J. Emp. & Lab. L. __ (forthcoming 2018), available at SSRN.

Every couple of years, some automated program at the University nags me about renewing my sexual harassment training. Since the computer provides no way for me to claim an exemption for my work on the topic over the years, I usually procrastinate a few weeks and then give in, log on, and spend the 20 or so minutes needed to run through the process and get my certificate of compliance. (Why I need a certificate when the program presumably keeps track of my efforts is another question). Each time, I finish thinking how incredibly stupid the training is—and not just because I—like pretty much everyone reading this on Jotwell—know more than the average person about the topic.

But “stupid” is probably counterbalanced by cheap and efficient—if “cheap” means compared to live efforts and “efficient” means a low cost way of checking the “reasonable care to prevent” box for avoiding liability for sexual harassment. And I don’t deny it works since I can’t recall a case where a court found colorable employer training efforts to be per se insufficient to “prevent” misconduct.

Nevertheless, I ask myself each time—can this possibly be what the Supreme Court had in mind? Continue reading "Train Smarter"

When Can an Estate or Trust Distribute IRD to a Charity and Receive an Income Tax Charitable Deduction?—The Answer is not Simple

Ladson Boyle and Jonathan G. Blattmachr, IRD and Charities: The Separate Share Regulations and the Economic Effect Requirement, 52 Real Prop. Tr. & Est. L.J. 369 (2018).

Can an estate or trust with charitable and non-charitable beneficiaries (1) receive income in respect of a decedent (IRD) proceeds, (2) distribute (or set aside) for a charitable purpose the IRD proceeds, and (3) perhaps not be allowed an Internal Revenue (IRC) code section 642(c) income tax charitable deduction? You may know that the answer is “yes.” In their article, Professor F. Ladson Boyle and Jonathan G. Blattmachr not only explain when and why such income tax charitable deduction is available, but also suggest planning techniques to ensure that the deduction is, indeed, available.

To start, here are the authors’ suggested solutions for ensuring that the section 642(c) income tax charitable deduction is available to the estate or trust. First, if possible, designate the charity as the direct beneficiary of the individual retirement account (IRA) or other IRD; do not have the IRD proceeds pass through the decedent’s probate estate or revocable trust. (P. 413.) Second, if the charity cannot be the direct beneficiary of the IRD and if the governing testamentary instrument can be drafted or amended, then ensure that the IRD is “specifically devised to charity as a pre-residuary devise.” (P. 413.) Third, if an estate is in administration, then the personal representative “might distribute the IRD in kind to the charity as a part of the residuary devise due to the charity” (but not to satisfy a specific pecuniary amount). (P. 414.) Continue reading "When Can an Estate or Trust Distribute IRD to a Charity and Receive an Income Tax Charitable Deduction?—The Answer is not Simple"

Personal Data as an Environmental Hazard

Omri Ben-Shahar, “Data Pollution,” University of Chicago Public Law & Legal Theory Paper Series, No. 679 (forthcoming 2018), available at SSRN.

What was the nature of the harm when data on 143 million Equifax consumers was stolen? More generally, what is the problem with personal data use and misuse by commercial players? The most immediate answer: privacy, individuals’ privacy interests are infringed. But then the question becomes what is the problem with infringing one’s privacy? Here, the answer usually is that infringing one’s privacy infringes upon her autonomy, dignity, emotional wellbeing, and such. To these non-monetary harms, one can add various monetary harms such as monetary losses associated with identity theft and other economic losses. These personal harms have led privacy scholars to focus on the private and personal aspects of data breaches. This, in turn, has naturally also led them to focus on private law solutions, such as tort and contract law-type protections for individual’s privacy interests.

However, despite years of attempting to combat irresponsible data sharing and handling, the problem persists. People treat their private personal information as if they do not much care about it. They may trade it quid pro quo for access to various services from navigation and communication services on their cell phones to participation in social networks, or even just to play Fortnite. And yet, when asked about how important privacy is to them, people overwhelmingly claim it matters a lot. Similarly, when people sue for damages for data breaches, they claim they suffered significant losses. The gap between what people claim (privacy matters) and what they do (sell it cheaply) is the so called “privacy paradox.” How can this paradox be resolved? Continue reading "Personal Data as an Environmental Hazard"

Learning from Our Mistakes

The income tax is a formidable institution in American political life. Understanding the many facets of its current form is a challenge, given the myriad forces that have interacted in its evolution. Larry Zelenak, in his book Figuring Out the Tax, published in January 2018 as part of the Cambridge Tax Law Series, offers the reader substantial insights into these forces through a close examination of the early history of the income tax in the United States.

Zelenak does not attempt to outline the entire history of the income tax, or even its complete history during the two decades following 1913, with which he deals most completely. Zelenak instead has chosen to provide the history of a number of discrete aspects of the income tax: the use of withholding for income streams other than wages, the step-up of basis at death, the use of value rather than basis to define the charitable deduction, the allowance of investment losses, the special treatment afforded families, the omission of imputed rental values enjoyed by homeowners and the surprisingly favorable treatment of earned income. These topics are not intended to be exhaustive or even representative; instead they were chosen because they had not, in Zelenak’s view, been the subject of adequate earlier treatments. Continue reading "Learning from Our Mistakes"

The Messy Core: Federal Supremacy and Property Recognition

Gregory Ablavsky, The Rise of Federal Title, 106 Cal. L. Rev. 631 (2018).

The issue of who should own federal public lands is often an issue that raises the temperature of politics and protest, especially in the western United States. Greg Ablavsky’s recent article gives us a historical analysis that provides some important answers to these questions.

In 2014, the federal government attempted to halt illegal cattle grazing on lands controlled by the Bureau of Land Management (BLM). For two decades, Cliven Bundy, a Nevada rancher, used the land and refused to pay the BLM grazing fees. But federal enforcement was blocked by armed supporters and private militia members who agreed with Bundy that the federal public lands are unlawful infringements on the rights of states and ranchers.

Two years later, a militia group led by Ammon Bundy, Cliven Bundy’s son, seized federal buildings in the Malheur National Wildlife Refuge in Oregon. The occupation, fueled by antagonism to federal land management and control, lasted 41 days.

Federal public lands are especially significant in western states where the United States owns 47 percent of all land. The belief that public land properly belongs to either the states or to people living nearby is often grounded on assertions that federal ownership is somehow unconstitutional.

According to this theory, land within each state belongs to the state and there is no legal or historical basis for federal land holdings. Gregory Ablavsky’s wonderful legal history article, The Rise of Federal Titleburies such arguments. It also puts an exclamation mark on one of the most important lessons of property law: that governmental recognition of title is fundamental to property ownership. Continue reading "The Messy Core: Federal Supremacy and Property Recognition"

Hope

Amna Akbar, Toward a Radical Imagination of Law, 93 NYU L. Rev. __ (forthcoming, 2018), available at SSRN.

Amna Akbar’s latest article takes sharp aim at the collectively constrained imagination of current legal scholarship and liberal reform agendas focused on the criminal legal system. And rightly so. She demonstrates that, with notable exceptions, we are mired, and almost lost, in our collective belief that the problems of the criminal legal system are problems of bad actors, bad seeds, and badly-implemented laws. She shows us that so many of the solutions we cling to will do nothing to address the systemic violence so prevalent in poor communities of color. She warns that answers do not lie in “investing even-handedness to law or the police…restoring criminal justice to some imaginary constitutional or pre-raced status quo,…[or] increasing resources for community policing.” (P. 105.) Instead the goal is transformative: to “[shrink] the space of governance now reserved for policing, surveillance, and mass incarceration; and fundamentally [transform] the relationship among state, market and society.” (P. 104.)

Despite this searing and far-reaching indictment of a wide swath of scholarship and advocacy, Akbar forgoes calling for either shame or despair. There is no time for either. Instead, by centering the radical, positive, and, love-inspired visions of the Movement for Black Lives1 and foregrounding their vision of “a world in which Black and other communities of color can thrive” (P. 120), Akbar offers hope. Continue reading "Hope"

Diversity, Golf, and the Rules of the (Legal Career) Game

Bryant Garth and Joyce S. Sterling, Diversity, Hierarchy, and Fit in Legal Careers: Insights from Fifteen Years of Qualitative Interviews, ___ Geo. J. Legal Ethics ___ (forthcoming), available at SSRN.

Diversity, Hierarchy, and Fit in Legal Careers: Insights from Fifteen Years of Qualitative Interviews is a new article by Bryant Garth and Joyce Sterling about the challenges for diverse lawyers (here meaning women and non-whites) in navigating career paths that lead to satisfaction and success. This is a popular topic. Garth and Sterling’s article stands out because it speaks both to the broad scale difficulties reflected in frustratingly slow progress on an organizational level, and to the particular contexts that frame the experiences, opportunities, and choices of individual lawyers hoping to find fulfillment in their careers.

The article begins with a rich discussion of various theoretical approaches that scholars have used to explain the failure in the profession — and particularly with regard to the ranks of positions of power and influence in the largest and most elite law firms — to reflect the increasing diversity of law school graduating classes. Garth and Sterling begin by explaining the “capital assets theory,” which grounds their work: Continue reading "Diversity, Golf, and the Rules of the (Legal Career) Game"

Restaurants and Regulation

Gabriel J. Chin & John Ormonde, The War Against Chinese Restaurants, 67 Duke L.J. 681-741 (2018).

In the The War Against Chinese Restaurants, Gabriel J. Chin and John Ormonde describe how state and local actors in the late nineteenth and early twentieth centuries used legal tools to try to drive Chinese restaurants out of business. Chin and Ormonde describe a wide array of legislative, regulatory, and prosecutorial activity targeting Chinese-owned restaurants—some of it successful, some not—and argue that these local (but often nationally coordinated) efforts demonstrate white Americans’ intertwined concerns about work, immigration, urbanization, gender, and ethnicity in this era. And these concerns, once moved to the national stage, motivated Congress in 1917 and 1924 to ban almost all immigration from Asia.

Why did Chinese restaurants come in for particular scrutiny? Restaurants were among the very few business opportunities available to Chinese workers in the United States in the late nineteenth century; white lawmakers and union officials relied on restrictive licensing laws and pervasive anti-Chinese prejudice to bar Chinese workers from most jobs. Small businesses like restaurants and laundries, however, offered a path to economic independence. The history of racially discriminatory regulation of laundries is familiar to readers of Yick Wo v. Hopkins; here Chin and Ormonde describe how restaurants were similarly targeted. Chinese restaurants succeeded by offering a popular product and paying their workers less than the market standard. White restaurant owners opposed such restaurants’ success; so too did white male workers and their unions, who resisted competition from underpaid workers and resented Chinese workers’ success even in this limited market segment. Calls for boycotts failed, so, as the authors note, “[s]ince there was no law reserving the food business to whites, the unions sought to create one.” (P. 698.) White men looked to the state to drive these restaurants out of business, demanding police raids, employment restrictions, licensing laws, and zoning rules. Continue reading "Restaurants and Regulation"

The Costs of Trademarking Dolls

Rebecca Curtin, Zombie Cinderella and the Undead Public Domain86 Tenn. L. Rev. __ (forthcoming 2018), available at SSRN.

Professor Curtin’s article, Zombie Cinderella and the Undead Public Domain, takes a recent case from the Trademark Trial and Appeal Board (TTAB) as the basis for an argument that trademark doctrine needs stronger protection against the exclusive commercial appropriation of characters that are in the public domain. In that case, a doll manufacturer sought to register the term “Zombie Cinderella” for a doll that was zombie-ish and princess-like. The examiner refused registration because the term “Zombie Cinderella” for this kind of doll was confusingly similar to the mark for Walt Disney’s Cinderella doll. Although the TTAB overturned the examiner’s “refusal to register” determination, it did so because it said Disney’s mark is a conceptually weak source indicator of “Disney” for dolls. This leaves open the possibility that Disney could build a stronger association between its mark and its dolls and eventually monopolize the term “Cinderella” as a mark for princess dolls. Professor Curtin’s article argues that leaving this opportunity open would be bad policy and should be precluded under a proper application of trademark law.

There are several aspects of this article that make it worth reading. First, it is a deep dive into a single case at the PTO, teaching readers about trademark registration and appeals from adverse rulings. The article reads as a compact case history from beginning to end. It appropriately balances the technical aspects of trademark practice with conceptual dimensions of trademark theory, such as aesthetic functionality (a doctrine that bars trademark protection for design and word elements that confer a non-reputationally-related advantage on the trademark holder). Second, drawing from her scholarly expertise in literary history, Professor Curtin provides rich and appropriately expansive details about Cinderella’s provenance as a character dating from 1558. The cultural history alone makes this article a joy to read, as Professor Curtin traces the Cinderella character forward to the 1899 Georges Melies’ film Cinderella and backward to a ninth century Chinese folk tale. This sets up the issue of what Disney can properly claim to own of the character’s name (as a trademark for its own princess doll toy) after the 1950 release of its film Cinderella. Continue reading "The Costs of Trademarking Dolls"

Construing Precedent

Richard Re, Beyond the Marks Rule, 132 Harv. L. Rev. __ (forthcoming 2019), available at SSRN.

What is the nature of precedent? How is it made and how can it eventually be unmade? If anyone knows, it is Richard Re at UCLA School of Law. Re has been doing the academy and the judiciary a service in recent years by writing several articles and a scholarly amicus brief on the foundational question of how certain opinions come to bind others. Beyond the Marks Rule is his latest offering in this rich area, and it does not disappoint.

Beyond Marks begins with what one might call the “less-than-five problem.” Generally, the Supreme Court creates binding precedent when a majority of the Justices supports a single rule of decision. Under the “majority rule,” if five Justices sign on to Rule A and four Justices sign on to Rule B, Rule A becomes the holding of the Court and binds the lower courts thereafter. But occasionally the Supreme Court does not merely split but fractures, leaving us in a world of, say, 4-1-4 (in which five Justices agree on an outcome, but only four agree on a rule explaining the outcome and one relies on alternative reasoning). What to do in such a situation? One could imagine concluding that an opinion without a majority is an opinion without precedential effect. But at the moment we are bound to conclude otherwise, thanks to Marks v. United States. Continue reading "Construing Precedent"

How the Law Contributes to Our Ever-Rising Health Care Costs

William M. Sage, Explaining America’s Spendthrift Health Care System: The Enduring Effects of Public Regulation on Private Competition, Healthcare Finance (forthcoming 2019), available at SSRN.

Do you ever wonder why our healthcare system costs double that of many other industrialized nations, yet the health of Americans is faltering? Why has our healthcare not progressed in terms of safety, efficiency, affordability, or equity in the last 20 years? In his forthcoming chapter in Healthcare Finance, Bill Sage argues that rather than the failings of partisan politics or corporate greed, our nation’s healthcare system struggles to provide quality care for a reasonable price in large part due to an inefficient legal infrastructure that hinders competition and distorts the collective investment in population health. Specifically, Sage critiques “the accumulation of laws, regulations, self-regulatory practices, and financial subsidies which locks US health care into inefficient, unfair patterns and practices.”

What follows in this impressively short, yet comprehensive, chapter is a description of how shifts in our understanding of the cost drivers in healthcare and the resultant healthcare reform efforts have created an inextricable web of laws and regulations that make healthcare so complicated and expensive. Beginning with the Affordable Care Act (ACA), Sage details the key provisions that sought to address the challenges facing health and healthcare in the US in 2010. He then points out that the ACA’s approach to national reform reflected a major shift in expert understanding of the US healthcare system in the past 20 years, and that the “dramatic implications of this new knowledge are not explicitly acknowledged in public policy debates.” The ACA’s policies transitioned the dominant health reform paradigm from one of a “three-legged stool” of tradeoffs between cost quality and access to the Triple Aim which sought policies that improved population health, improved the patient experience, and reduced costs simultaneously. This new paradigm captured the attention and focus of policymakers, telling them that eliminating “waste, fraud, and abuse” could improve healthcare quality and reduce costs. Under this paradigm, the fix could come from curbing overutilization, promoting efficiency, and expanding preventive care. Continue reading "How the Law Contributes to Our Ever-Rising Health Care Costs"