Expanding Liberty to Privatize Dependency: How the Evolution of Marriage Has Shaped Constitutional Law

Susan Frelich Appleton, Obergefell’s Liberties: All in the Family, 77 Ohio St. L.J. 919 (2016), available at SSRN.

The Supreme Court’s ruling in Obergefell v. Hodges1 was a watershed moment not only in the history of the LGBT movement, but also in the relationship between family law and constitutional law. In the two years since it was decided, the ruling has become the subject of insightful commentaries from many of the legal academy’s leading scholars. This jot highlights one such article by Susan Frelich Appleton that merits special attention from scholars working in the fields of family law and constitutional law.

Appleton’s article makes two significant contributions to our understanding of the relationship between family law and constitutional law. Continue reading "Expanding Liberty to Privatize Dependency: How the Evolution of Marriage Has Shaped Constitutional Law"

Emphasizing the Public Interest in Charitable Gifts

Susan Gary, Restricted Charitable Gifts: Public Benefit, Public Voice, 81 Alb. L. Rev 101 (2018), available at SSRN.

Susan Gary’s Restricted Charitable Gifts: Public Benefit, Public Voice makes the case for legal reforms that reflect the public’s interest in loosening donor control of charitable gifts. Gary writes that her article is aimed at advocating for the adoption of reforms that increase “the consideration of the public benefit standard in charities law,” so I know that she didn’t set out to change the way I teach my Estates course. But that’s exactly what she did, and it’s why I like her article.

In classes on charitable trusts, my big picture questions are about the relationship between donors and charities: when should the law defer to the dead hand and when should it permit charities to modify donor-restricted gifts? Gary’s article has convinced me that the public interest—not donors or charities—should instead assume center stage. Restricted Charitable Gifts: Public Benefit, Public Voice is one of those rare articles that prompts me to re-conceptualize material I’ve taught for many years, particularly the enforcement role of the attorney general. Continue reading "Emphasizing the Public Interest in Charitable Gifts"

What Ever Happened to Dignity?

Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts, 104 Cornell L. Rev.__ (forthcoming 2018), available at SSRN.

In The Puzzle of the Dignitary Torts, Ken Abraham and G. Edward White return our attention to a domain of tort law they rightly describe as neglected, namely, the “dignitary torts”. In our time, the term is casebook catchall for an arguably heterogeneous collection of intentional wrongs— “offensive” battery, defamation, false imprisonment, intentional infliction of emotional distress (IIED) and the four privacy torts (intrusion upon seclusion, public disclosure of private facts, false light, and commercial appropriation).1 The term is a taxonomic category, and little more. It was not always so. For the first two-thirds of the twentieth century, the “dignitary torts” were a subject of sustained scholarly and practical interest. In the 1970’s they vanished from the scholarly radar and have not returned. In the courts, the long staccato expansion of these torts was halted by New York Times v. Sullivan and its progeny. New York Times v. Sullivan breached the wall that had insulated “private law” doctrines from public law criticism. Private law became another instance of state action and the dignitary torts became subject to constitutional scrutiny and curtailment insofar as their commission involved expression. In our time, the category endures almost untouched, but in so enduring it has become a hollowed-out husk of its former self. “Dignitary torts” is now just a hand box, a convenient pigeonhole which enables us to group together a number of distinct wrongs for purposes of classification and exposition. Nothing more is now said about “dignity” as a concept, or as a value, or as an overarching interest, which either captures a latent unity among these wrongs or identifies a common thread which ties the torts together. And the dignitary torts no longer struggle forward. They stand now in a defensive crouch, awaiting further constitutional confinement.

Abraham and White rightly think that there is an important story here, and they tell that story in a rich, illuminating, and provocative way. The history of the dignitary torts is indeed a puzzle. Why did scholarly interest in them disappear? Why are they still dormant even though dignity has built up a head of steam in both international human rights law and domestic legal developments such as same-sex marriage and the more general recognition of the dignity of LGBT persons? The Puzzle of the Dignitary Torts offers answers to these questions, and more. It also explores the concept of “dignity” and advances a jurisprudential argument that the dignitary torts were foreordained to wither on the vine. That argument is intuitive at first sight, but elusive on closer inspection. The basic idea is that because the common law creeps forward case by petty case it cannot build a body of law which is systematically organized around a highly general concept like “dignity”. Continue reading "What Ever Happened to Dignity?"

Fleshing Out Centralized Review of Tax Regulations

Clinton Wallace, Centralized Review of Tax Regulations, 71 Alabama L. Rev. __ (forthcoming 2018), available at SSRN.

In a new article, Centralized Review of Tax Regulations, Clinton Wallace addresses the timely question of whether and how tax regulations should be subject to centralized review by the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”). While OMB review has become standard for “significant” or “economically significant” agency regulations, tax regulations have long avoided review even when they meet this standard, raising, yet again, the question of whether tax should be different than other areas of administrative law. In addition to helping us understand the historical lack of centralized review of tax regulations, Wallace’s paper does the important job of showing the inadequacy of the new framework for centralized review, and pushing us to recognize the complex questions that have to be answered to develop objective criteria for review.

Wallace first describes how the history of tax regulations not being subject to OIRA review is tied in with the long and much discussed (at least in tax circles) story of tax exceptionalism. Historically, Treasury and the IRS have taken the view that most of their regulations were merely interpretive and thus not subject to various requirements such as notice-and-comment or centralized review. This has resulted in the anomaly of tax regulations not being subject to the various stages of OIRA review even in cases in which other agencies, with joint drafting responsibility, have subjected that very same set of regulations to centralized review. Wallace also describes how the anti-inversion rule, the one tax regulation that has been subject to centralized review recently, was only reviewed in a relatively superficial way, lacking the type of rigorous analysis prescribed by OIRA’s own rules. Continue reading "Fleshing Out Centralized Review of Tax Regulations"

Property, Fast and Loose

Katrina M. Wyman, The New Essentialism in Property, 9 J. Legal Analysis 183 (forthcoming 2018), available at SSRN.

What’s the best model for property – a sack of LEGO bricks or a heap of sticks?1 For those with a formalist view of property that emphasizes a stable set of characteristics and a distinctively self-contained architecture, the LEGOs win hands down.2 The blocks are standardized, free of rough edges and irregularities, and they snap cleanly together while maintaining their individual integrity. The sticks, by contrast, lack any obvious organizing principle or irreducible core. The bundles they form are loose and contingent, vulnerable to endless unbundling and rebundling.3 Yet the choice of bricks over sticks becomes far less clear on a functional vision of property that focuses on making property rights work well in the messy, interdependent modern world. For a functionalist, the question of optimal property structure must depend on the challenges and pressures presented by the surrounding conditions, and on what one is trying to build.

In The New Essentialism in Property, Katrina Wyman spotlights the incongruity between the formalist and functionalist facets of what she terms “the new essentialism.” Her primary focus is the influential scholarship of Henry Smith and Thomas Merrill, who are presently working on the American Law Institute’s fourth restatement of property (Smith is the lead reporter; Merrill is an associate reporter). Their vision of property as a boundary controlled, thing-based, in rem system of delegated control is steeped in formalism. Yet it also lays claim to functionalist justifications, most notably in the form of information cost savings. Opening the door to functionalism, however, requires reconciling property’s purportedly fixed core with social and economic conditions that are far from static. The resulting brand of essentialism is, as Wyman puts it, “highly malleable.” This malleability has two implications, as Wyman observes.  On the one hand, it offers a response to critics who accuse the new essentialist project of neglecting important interests. On the other, it makes the new essentialism less essentialist. Continue reading "Property, Fast and Loose"

Severability, Separation of Powers, and Agency Design

Kristin E. Hickman, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 1475 (2017).

Kristin Hickman pursues a “modest” goal in Symbolism and Separation of Powers in Agency Design: “to raise a few reservations regarding judicial refashioning of agency design via [a] severance remedy for separation of powers violations.” This understated approach commands attention to Hickman’s analysis. In this contribution to a Notre Dame symposium on “Administrative Lawmaking in the Twenty-First Century,” Hickman clearly identifies and carefully analyzes problems arising out of what might otherwise have passed as unremarkable applications of existing severability doctrine. With an eye toward big-picture legitimacy of courts and agencies, and with attention toward doctrinal and statutory detail, Hickman provides fresh reasons for judges to rethink this doctrine. And the increased attention earned by relatively restrained criticisms like Hickman’s may eventually move the law in the direction of more radical critiques that have started to receive an audience at the Supreme Court.

Hickman describes three cases or sets of cases in which the Supreme Court or the D.C. Circuit held an agency design unconstitutional based on separation of powers principles and then “fixed” the problem by “severing” a structural provision of the statutory agency design. These cases addressed the structure of the Public Company Accounting Oversight Board, the Copyright Royalty Board, and the Consumer Finance Protection Bureau. Continue reading "Severability, Separation of Powers, and Agency Design"

Privacy and Surveillance in Nursing Homes

Karen Levy, Lauren Kilgour, & Clara Berridge, Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws, 26 Elder Law J. __ (forthcoming 2018) available at SSRN.

A nursing home can be a dangerous place. Undetected abuse and neglect are common. Frustrated with the inadequacy of government oversight, some families have taken matters into their own hands and installed in-room video monitoring devices. In this way, privatized abuse prevention efforts can identify and rectify that which the camera records. The increasing use of so-called “granny cams” has led to legislative responses in at least six states—Illinois, New Mexico, Oklahoma, Texas, Washington, and Utah. These statutory frameworks are thoughtfully examined by Karen Levy, Lauren Kilgour, and Clara Berridge in their forthcoming article, Regulating Privacy in Public/Private Space: The Case of Nursing Home Monitoring Laws.

The covert use of technology such as web-enabled video cameras to “peek in” and also preserve evidence of inadequate care, abuse, or exploitation may be well-intentioned. The overt placement of cameras might help to deter abuse from occurring in the first place. Privacy and autonomy concerns, however, might be overlooked. As these three co-authors explain, the interests of the resident, their roommates, their visitors, and their care workers—even, to some degree, the institutions themselves—merit scrutiny: “These multivalent privacy dynamics create a complicated space for law.” (P. 3.) Indeed, this complex relational space has given rise to strikingly varied legislative fixes. Levy, Kilgour, and Berridge study a relatively unstudied problem with sensitivity and thoroughness. Continue reading "Privacy and Surveillance in Nursing Homes"

Look What’s New! Utah’s Groundbreaking Efforts to Use Online Dispute Resolution (ODR) to Increase Access to Justice

Justice Deno Himonas, Utah’s Online Dispute Resolution Program, 123 Dickinson L. Rev. 875 (2018).

In September 2018, Utah launched its small claims court online dispute resolution (ODR) system. Years in the making, a goal of Utah’s new ODR system is to provide greater access to justice for Utah’s citizens. The ODR system has been designed to provide “simple, quick, inexpensive and easily accessible justice” that includes “individualized assistance and information that is accessible across a multitude of electronic platforms.”

This description of Utah’s new ODR program comes from Utah Supreme Court Justice Deno Himonas’s article entitled Utah’s Online Dispute Resolution Program Justice Himonas’s article should be of particular interest to readers who followed the work of the ABA Commission on the Future of Legal Services or readers interested in developments such as Washington’s Limited License Legal Technician program (LLLT) or New York’s Court Navigator program. Continue reading "Look What’s New! Utah’s Groundbreaking Efforts to Use Online Dispute Resolution (ODR) to Increase Access to Justice"

Between Mexico and the United States

When it comes to immigration to the United States in the twentieth century, there is little question that Mexico has been by far the most important sending country. Colonial conquest and domination, geographic contiguity, cultural links, wealth differentials, state policies on both sides of the border, and the pressing needs of Americans and Mexicans have made it so. We have yet to come to terms with the full significance of the impact of twentieth-century Mexican immigration on the United States’ demographics, politics, economy, society, and culture. What we do know, however, is that U.S. immigration law took form in the twentieth century in significant part to encourage, restrict, manage, and respond to migration from Mexico. Since the 1920s, border control has largely concentrated on the United States’ southern border. Mexicans have peopled all of the myriad legal categories into which twentieth-century immigrants have been slotted: non-immigrants, temporary workers, legal immigrants, and “illegal” immigrants. The debate over undocumented migrants, it scarcely bears mention, rages in Trump’s America, and the xenophobes’ target is Mexico.

Ana Raquel Minian’s important book, Undocumented Lives, provides crucial context to the figure of the Mexican undocumented migrant. Although her story begins earlier and continues after, Minian’s focus is on the period from the mid-1960s, when the bracero program ended, to the mid-1980s, when the U.S. government extended an “amnesty” to undocumented migrants but also closed the U.S.-Mexico border, making what had hitherto been a back-and-forth circular migration of the undocumented between the two countries much more difficult. Undocumented Lives covers a vast range: state policies in Mexico and the United States; explorations of the everyday lives of undocumented migrants and their communities in both countries; and the strategies undocumented migrants employed to win rights and protections for themselves in the United States. One of its goals is to represent undocumented Mexican migrants to the United States as “in between peoples” of a sort, fully incorporated in neither country, suspended in a state of rejection by both, but nevertheless forging a precarious identity. In what follows, I discuss three important contributions of the book and offer some observations about each. Continue reading "Between Mexico and the United States"

Creative Vigilantism

Amy Adler & Jeanne C. Fromer, Taking Intellectual Property into Their Own Hands, 107 Cal. L. Rev. __ (forthcoming 2019), available at SSRN.

It’s no longer news that a major proportion of property regulation happens outside the bounds of the law thanks to social norms and their extralegal enforcement. Yet legal scholars continue to find new and fascinating ways to advance this insight. The latest installment in the conversation about the norm-based regulation of intangible property is Amy Adler and Jeanne Fromer’s Taking Intellectual Property into Their Own Hands.

This sparkling article1 adds a novel perspective to the dialogue that has been developing for more than a decade about the extralegal regulation of creative production. Most of this work considers how a given group regulates their distinctive works via norms, without recourse to copyright or trademark law. This move has been made with respect to recipes developed by French chefs, roller derby skaters’ nicknames, clowns’ face makeup, tattoo artists’ ink designs, and many others. Continue reading "Creative Vigilantism"

Does the Center Want to Hold?

David Adler, The Centrist Paradox: Political Correlates of the Democratic Disconnect (May 01, 2018), available at SSRN.

The very idea of a meaningful left-center-right political spectrum always seemed suspect to me. Many commentators have warned against conflating cultural and economic “wings.” The cultural left wants to get the state out of the bedroom (so to speak). The economic left wants to get the state into the boardroom. The cultural right wants to inject the state into the bedroom, to regulate sexual and procreative matters. The economic right wants the state out of the boardroom, sweeping away pesky regulations of the workplace and the market.

Plainly, one might be on the economic right but on the cultural left, or vice versa. It would be a mistake to try to cram these different dimensions into one. Would someone who happened to fall simultaneously on the economic left and the cultural right count as…a centrist? An outlier? (Gene Debs called socialism “Christianity in action“—where does that put him?)

Set this worry aside, and assume that correlations with, say, attitudes about immigration serve to validate the use of a one-dimensional spectrum. Extensive surveys have been conducted that ask respondents where they place themselves. Some of these surveys go on to ask about attitudes toward democracy and elections and the importance of having a strong, decisive leader unfettered by a congress or parliament. David Adler, a young researcher who recently moved from London to Athens, has looked at this data and has uncovered what he calls the “Centrist Paradox.” Anyone who is concerned about the direction democracies are taking ought to take a careful look, too. Continue reading "Does the Center Want to Hold?"