Yearly Archives: 2013
May 15, 2013 Brooke D. ColemanCourts Law
Lonny Hoffman, Rulemaking in the Age of Twombly and Iqbal, U.C. Davis L. Rev. (forthcoming, 2013) available at SSRN.
The Federal Rules of Civil Procedure are 75 years old this year. Imagine a fete thrown in their honor-mini rule books as party favors, balloons emblazoned with Rule numbers 1-86, and a cake decorated with the words “Just, Speedy, and Inexpensive.” If there ever where such a party, Lonny Hoffman’s article, Rulemaking in the Age of Twombly and Iqbal, should be the opening toast. No, his article does not begin with a pithy joke; although, that might be fun. What it does is address the federal civil rulemaking process, an important — but often less discussed — aspect of the civil rules.
Hoffman’s article uses Rule 8’s pleading standard and the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal as an entry point for his discussion of the federal civil rulemaking process. First, he provides a thorough historical account of Rule 8. He relies on primary source material and weaves a rich recounting of the original rulemakers’ Rule 8 deliberations. The original civil rulemaking committee made a choice in Rule 8 by using the word “claim” in the text as opposed to “fact.” It chose this language for maximum flexibility and minimum technical wrangling. This much we already knew. But Hoffman’s account reminds us of Rule 8’s origin before summarizing how the civil rulemaking committee treated Rule 8 over time. What his account tells us is that the rulemakers had multiple occasions to reconsider the policy choices made in the original Rule 8. He documents how rulemakers confirmed Rule 8 again and again from the 1970s until just before Twombly was decided in 2007. While the reasoning of each committee varied a bit — some citing the practical difficulty of amending the rule, some questioning the empirical basis for changing the rule, and some arguing that heightened pleading would be antithetical to the rule’s purpose — it is safe to say that, overall, the rulemakers actively decided to keep Rule 8 as it was. Continue reading "Celebrating Federal Civil Rulemaking"
May 13, 2013 Pat GudridgeConstitutional Law
Whatever Reva Siegel writes is worth close study. This recent Yale Law Journal article is no exception — characteristically alert and probing, quintessentially first-rate. She identifies a worry recurring in important opinions Justice Kennedy has written recently – an intimation that identifying individuals on the basis of race is balkanizing. This suggestion or something like it, she notes, also shows up in affirmative action opinions Justices O’Connor and Powell wrote and in an impressive article by Paul Mishkin Professor Siegel herself, Robert Post, and others have taken up. She wonders whether the balkanizing worry defines a third way — an alternative to both color-blind concerns with use of racial classifications as such and preoccupations with the facts and circumstances of subordination. The well-known Seattle and New Haven controversies look like appropriate cases for use of the balkanizing idea, she thinks. Her discussion of Seattle (and the Louisville companion, not really separated) is somewhat abstract. Her assessment of how the city made matters worse in New Haven, and the likely consequences, feels especially dead-on.
As the article itself suggests in its long finish, the notion of “balkanizing” is provocative but incomplete. There needs to be some filling in. Reva Siegel is sure about that, but she doesn’t try to take the work too far. She’s sketching but not necessarily joining this school of thought. But what she writes is nonetheless a very effective prompt, an invitation to readers to pose tests or propose for themselves more in the way of elaboration. Indeed, a true sign of the great success of the article lies in how quickly the reader begins to join in Siegel’s exploration. Continue reading "Balkan Ghosts"
May 12, 2013 JotwellJotwell
We’re having some intermittent, random, issues with Jotwell’s server, and as a result the Jotwell family of web sites may be slow at times until we resolve them. Some services, especially the special formatting for mobile devices, likely will be turned off during some of testing periods, but we will bring tham all back once things return to normal.
Meanwhile, while debugging is going on, if the site is down or slow, please try again later in the day.
May 10, 2013 Peter ShaneAdministrative Law
In July, 2012, the Obama administration invited states, which administer the Temporary Assistance for Needy Families (TANF) program, to apply for waivers from some federal requirements for that program. The states would have to have alternative programs in place for increasing employment among the poor. In short order, the presidential campaign of Republican candidate Mitt Romney charged the President with gutting federal law. Campaign commercials alleged that Obama was illegally ending the work requirements that had been a centerpiece of federal welfare reform in the 1990s.
Although the commercials had little political impact, they did bring to public attention a little-noticed feature of a surprising number of federal statutes – a feature that Professors David Barron and Todd D. Rakoff call “big waiver.” In their superb paper, “In Defense of Big Waiver,” they analyze a fascinating phenomenon. Congress sometimes will enact “a fully reticulated, legislatively defined regulatory framework” that contains within it a delegation of “broad, discretionary power to determine whether the rule or rules that Congress has established should be dispensed with.” Continue reading "“Big Waiver” as a Constructive New Tool of the Administrative State"
May 8, 2013 Matt BodieWork Law
The existential dilemma of modern labor law has been the shrinking numbers of employees who vote for union representation. Last year unions represented only 11.3 percent of U.S. employees—just 6.6 percent in the private sector. Labor law scholars have long attempted to account for the trend; indeed, rumors about the death of labor law have been around for at least twenty years. One might think that the academic ground concerning the decision to join or not join a union would be well-plowed—so plowed over, in fact, that the land would no longer be fertile. But two recent articles not only belie this claim, they also show the continuing importance of the representation decision to our conceptions of workplace justice.
In A Moral/Contractual Approach to Labor Law Reform, Eigen and Sherwyn seek to find middle ground between the union-side story and the management-side story as to those declining percentages. They reject the notion that a fairer labor law system would be one in which unions enjoyed higher success rates. Instead, they argue that representation elections should be fair, and they define a fair system as one that “will result in employees believing they had enough information to make an informed decision, that they were respected, and that they were not intimidated, threatened, or coerced.” (p. 712) Although they acknowledge the well-regarded labor law critique by Paul Weiler and others that workers are insufficiently protected against coercive employer tactics during the representation campaign, they also contend that unions have “failed to adapt with the times.” (p. 719) According to Eigen and Sherwyn, under the current system workers are trapped in tug of war in which both unions and employers can lie, manipulate, and coerce their way to victory. Card check neutrality agreements, in their view, make matters even worse: since the union must collude with the employer to put such an agreement into effect, they argue that such agreements constitute improper employer support to the union in violation of NLRA § 8(a)(2). Instead of shortening or eliminating the representation campaign, Eigen and Sherwyn argue that labor organizations and employers should agree to the “Principles for Ethical Conduct During Union Representation Campaigns” as set forth by the Institute for Employee Choice. The Principles require truthfulness; prohibit discharges, threats, and bribes; and call for equal time and access for both sides. Eigen and Sherwyn acknowledge some question about how the Principles should be enforced; they reject codifying them as regulatory requirements, but are equivocal between providing legal incentives for compliance and just simply leaving them as a contractual option. Here, Eigen and Sherwyn rely on past research (including this paper by Eigen) to argue that making the Principles mandatory will undercut the moral norms that might render them more effective in the workplace than legal sanctions. Ultimately, they hope that joint agreement to the Principles will make all parties, but particularly employees, better off as a result. Continue reading "Choose or Lose"
May 6, 2013 Nora EngstromTorts
Joanna Shepherd, Justice in Crisis: Victim Access to the American Medical Liability System, Emory Legal Studies Research Paper 12-222 (2012) available at SSRN.
When we think about access to justice, we don’t tend to think about personal injury victims. Indeed, I recently completed a review of legal needs surveys from seventeen states, conducted between 2007 and 2012. Attempting to measure the citizenry’s “level of access to the civil justice system,” the surveys generally asked about all manner of legal issues: consumer problems, housing problems, health problems, employment problems, family problems, and problems obtaining public benefits. Yet out of these seventeen studies, only four inquired about accidents.
Why this omission? It’s not that accidental injuries are too rare to merit inclusion. To the contrary, Deborah Hensler’s classic work, Compensation for Accidental Injuries in the United States, shows that accidents happen with unnerving frequency. Roughly one in six Americans sustains an accidental injury that results in measureable economic loss each year, and some accidents are serious. One-third of accident victims’ injuries impose “significant costs on them and on society.” Likewise, Barbara Curran’s groundbreaking 1977 study, The Legal Needs of the Public, found that “tort problems” (including those involving property damage) were more common than problems involving marital issues, job discrimination, wage collection, landlord-tenant disputes, and other consumer problems, combined. Continue reading "Bridging the Gap in the Justice Gap Literature"
May 3, 2013 Donald TobinTax Law
With the Supreme Court’s recent decision in Mayo Foundation for Education and Research v. United States, there is a huge void of scholarship regarding how administrative law principles apply in the tax context. Kristin Hickman helps fill that void by continuing her work at the intersection of administrative law and tax procedure in her recent Vanderbilt Law Review article “Unpacking the Force of Law,” which deals with the treatment of temporary treasury regulations and IRB guidance after the Supreme Court’s decisions in Mayo and United States v. Mead Corp.
In Mead and Mayo, the Court clarified that agency regulations received Chevron deference if they were based on either specific grants of rulemaking authority contained in a statute or on general rulemaking authority granted by Congress to a specific agency. Mead explained that an agency’s regulation was entitled to Chevron deference as long as “Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” In addition, in Mayo, the Supreme Court rejected the idea of tax exceptionalism stating “[w]e are not inclined to carve out an approach to administrative review good for tax law only.” Continue reading "Temporary Treasury Regulations and IRB Guidance in a Post-Mead and Mayo World"
May 1, 2013 Jay TidmarshCourts Law
Maggie Lemos’s valuable article tackles one of the hot issues in aggregate litigation: a government (typically acting through its attorney general) using parens patriae suits to vindicate the rights of its citizens. As I described in my last Jotwell post, access to justice in a mass society is the central civil-justice issue of our day. Individual litigation of mass-injury claims is a luxury that neither litigants nor the court system can typically afford. Class actions are shriveling as a realistic alternative in many instances. Non-class aggregate litigation is infected with its own problems, as the ALI’s recent Principles of the Law of Aggregation shows. And contracts of adhesion increasingly shunt victims into individual arbitration processes that provide little realistic opportunity for relief — and no opportunity for judicial resolution.
Into this harsh landscape enters the parens patriae action, which has emerged as the newest academic darling with the potential to provide victims of mass injury a measure of justice. In these actions, the attorney general sues on behalf of those citizens allegedly injured by the defendants’ conduct. Such a suit ensures a measure of deterrence. If the recovery occurs and the attorney general establishes a fund against which injured citizens can claim, the suit also results in a modicum of compensation. Because the suits are controlled by a public official, they also (in theory) come closer to achieving the optimal level of regulatory response, while avoiding the large fees, blackmail settlements, and other agency costs that so often give class-action and other aggregate litigation a bad name. Continue reading "Adequacy and the Attorney General"
Apr 30, 2013 Christopher SchmidtLegal History
In The Great Persuasion: Reinventing Free Markets since the Great Depression, Angus Burgin, a historian at Johns Hopkins, offers the fascinating story of a trans-Atlantic group of intellectuals who, beginning in the 1930s, came together in an effort to articulate and promote an alternative vision to the then-dominant ideas of Keynesian economics. In this short essay, I describe Burgin’s impressive contribution to the intellectual history of modern conservatism, and then offer some concluding thoughts on neoliberalism as a constitutional value today.
The basic story of the resurgence of conservatism, including free market ideology, in the second half of the twentieth century is well known. What this fine book adds is a sensitive and nuanced portrait of those thinkers—economists, mostly, but not exclusively—who, through several generations of struggle, among themselves and with their antagonists, shaped the ideas of what has come to be known as neoliberalism. Burgin’s overriding argument is that these people made possible the eventual triumphs of free market ideas in the public sphere. Although often articulated in abstract and technical terms, these were ideas that would have a profound impact on American life and politics. Continue reading "The Global Community of Ideas that Created Neoliberalism"
Apr 29, 2013 Elizabeth ChamblissLegal Profession
Renee Newman Knake, Democratizing Legal Education, 45 Conn. L. Rev. (forthcoming, May 2013), available at SSRN.
What are the public duties of law schools? Specifically, what duty, if any, do law schools have to educate people outside of the profession, such as clients, would-be clients, and ordinary citizens and consumers? Do law schools have a duty to promote public access to legal information and services?
Most of the recent call for U.S. legal education reform has focused on the interests of lawyers and problems of access to the profession, such as rising law school tuition, the contraction of the legal job market, and law schools’ duty to provide prospective lawyers with accurate job market data. Such concerns about “the economics of legal education” for lawyers are the subject of a recent letter from a coalition of legal academics to the ABA Task Force on the Future of Legal Education. Continue reading "Law for All? The First Thing We Do, Let’s Educate the Non-Lawyers"
