Monthly Archives: August 2016

This Is a Test

A. Michael Froomkin & Steve Gordon, Politiké Finance V SFR, 12 Právník 1079 (1990).

The standard history of legal aid begins with the founding of the New York Legal Aid Society in 1876. It then chronicles male attorneys’ efforts to professionalize legal services during the Progressive Era, culminating in the 1919 publication of Reginald Heber Smith’s famous text, Justice for the Poor. By centering gender as a category of analysis, Felice Batlan cracks this narrative wide open. Women and Justice for the Poor demonstrates that the dominance of male attorneys and clients was contested from the start. By exposing the temporality and contingency of categories that Smith and many previous historians took for granted, Batlan deconstructs conceptual boundaries between law and social work, lawyers and reformers. The book, which recently won the Law and Society Association’s J. Willard Hurst Award for the best book in sociolegal history, is beautifully written, precisely researched, and strongly argued.

Batlan shows that organized legal services for the poor began earlier than we have recognized, in a female dominion of legal aid that prevailed from the end of the Civil War through 1910.   Although a rich historical literature has documented women’s social reform activities in this period, Batlan provocatively argues that many female-dominated organizations functioned as legal aid services. Women reformers in New York founded the Working Women’s Union in 1863. Similar organizations followed in Boston, Chicago, and much later in New Orleans. Elite women reformers acted as lay lawyers. They educated themselves about caselaw, used moral suasion and social pressure to advocate for clients, founded service institutions, and campaigned for reform in local government. Continue reading "This Is a Test"

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Constitutional Officers: A Very Close Reading

  • Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Am. Legal Studies 95 (2016), available at SSRN
  • Seth Barrett Tillman, Originalism & the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014), available at SSRN

Everybody should read the Constitution. But some of us find more in its text than others. In a series of underappreciated pieces,1 Professor Seth Barrett Tillman may have found an intricate and startlingly coherent set of principles about government structure — as well as a reminder to take the Constitution’s words more seriously than we do.

Much of the Constitution (especially the original 1789 document) deals with structure. It creates government institutions, defines their powers, and regulates their membership. In the course of doing so, many of the Constitution’s provisions deal with individuals who hold government office – officers. Indeed, if you start ticking off references to “office” and “officers” as you read through the Constitution, you may notice two things: There are a lot of them, and many of them are phrased differently. Continue reading "Constitutional Officers: A Very Close Reading"

When Physical Harm Is Threatened but Not Realized: Who Should Pay?

Donal Nolan, Preventive Damages, 132 Law Q. Rev. 68 (2016), available by subscription at Westlaw.

The recent Restatement Third of Torts divides U.S. tort law into separate categories of harm. Liability for physical injury is governed, on the one hand, by the Restatement Third of Torts: Liability for Physical and Emotional Harm. Liability for economic loss, on the other hand, is governed by the Restatement Third of Torts: Liability for Economic Harm. In the case of physical harm, default rules permit generous liability and recovery. In the case of economic losses, liability is quite limited. So it is no surprise that issues arise at the border of these two subjects. Specifically, what happens when the defendant’s conduct creates not actual physical harm, but a risk of physical harm that occasions the need for the plaintiff to incur economic expenses that will prevent it? Should the more liberal rules of physical harm recovery apply because the defendant’s conduct created a risk of physical harm? Or should the more restrictive rules of economic loss recovery apply because the actual damage is, after all, purely economic?

In his recent article, Preventive Damages, Professor Donal Nolan of Oxford University confronts this thorny issue, which, as he notes, “has been the subject of surprisingly little analysis by common law scholars.” Professor Nolan begins his article with the general principle of preventative damage recovery outlined in the Principles of European Tort Law. Specifically, Article 2.104 provides that “Expenses incurred to prevent threatened damage amount to recoverable damage in so far as reasonably incurred.” This general principle apparently captures the preventative damage rules of a number of civil jurisdictions, including Germany and France. But Nolan suggests that “most common lawyers would struggle to answer” whether this principle represents the law in their jurisdictions. The cases Nolan highlights seem to warrant that legal uncertainty as they pull in both directions. Continue reading "When Physical Harm Is Threatened but Not Realized: Who Should Pay?"

Understanding Unconstitutional Amendments: Reflections on Comparative Constitutional Doctrine and Method

Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015).

Rosalind Dixon and David Landau’s Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment contributes significantly to at least two fields of legal scholarship: the writing on unconstitutional amendments and the literature on comparative constitutional law. In what follows, I will highlight how this most impressive text contributes to each of these fields.

Consider first the article’s contribution to the writing on the doctrine of unconstitutional amendments. As the authors’ exhaustive citations reveal, scholars have long examined how courts should determine whether “some constitutional amendments are substantively unconstitutional because they undermine core principles in the existing constitutional order.” (P. 608.) Dixon and Landau state with striking clarity the stakes that underlie this debate. They note that the doctrine creates a slippery slope problem: judicial oversight can create a brake on attempts to enshrine in a constitution measures that unambiguously undermine its democratic legitimacy, yet there is a risk that courts will extend the doctrine to cases in which there is only reasonable disagreement about a particular interpretation of the constitution and therefore no serious threat to the polity’s democratic order. When a court overreaches in this way, the authors note, it frustrates the political branches’ ability to pursue a constitutionally recognized avenue for resolving a reasonable disagreement with the judiciary. Dixon and Landau describe the consequences of such judicial overreaching: “Giving courts unfettered power to invalidate amendments for incompatibility with their own prior preferred reading of the constitution will create a clear democratic danger or cost.” (Id.) Continue reading "Understanding Unconstitutional Amendments: Reflections on Comparative Constitutional Doctrine and Method"

Understanding Unconstitutional Amendments: Reflections on Comparative Constitutional Doctrine and Method

Rosalind Dixon & David Landau, Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment, 13 Int’l J. Const. L. 606 (2015).

Rosalind Dixon and David Landau’s Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment contributes significantly to at least two fields of legal scholarship: the writing on unconstitutional amendments and the literature on comparative constitutional law. In what follows, I will highlight how this most impressive text contributes to each of these fields.

Consider first the article’s contribution to the writing on the doctrine of unconstitutional amendments. As the authors’ exhaustive citations reveal, scholars have long examined how courts should determine whether “some constitutional amendments are substantively unconstitutional because they undermine core principles in the existing constitutional order.” (P. 608.) Dixon and Landau state with striking clarity the stakes that underlie this debate. They note that the doctrine creates a slippery slope problem: judicial oversight can create a brake on attempts to enshrine in a constitution measures that unambiguously undermine its democratic legitimacy, yet there is a risk that courts will extend the doctrine to cases in which there is only reasonable disagreement about a particular interpretation of the constitution and therefore no serious threat to the polity’s democratic order. When a court overreaches in this way, the authors note, it frustrates the political branches’ ability to pursue a constitutionally recognized avenue for resolving a reasonable disagreement with the judiciary. Dixon and Landau describe the consequences of such judicial overreaching: “Giving courts unfettered power to invalidate amendments for incompatibility with their own prior preferred reading of the constitution will create a clear democratic danger or cost.” (Id.) Continue reading "Understanding Unconstitutional Amendments: Reflections on Comparative Constitutional Doctrine and Method"

How and Why Representation Matters

Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise, 93 Denv. L. Rev. 469 (forthcoming 2016), available at SSRN.

The sociologist Rebecca Sandefur estimates that a staggering one in three members of the population experiences a civil justice problem every year. Recent reports consistently pronounce that a glut of newly minted lawyers is crowding an oversaturated market. Yet low- and moderate-income Americans are far more likely than not to attempt to protect important rights to housing, custody, financial security, and physical safety without the benefit of attorney assistance. A conservative estimate puts the number of unrepresented parties in the civil justice system at twelve or thirteen million. Gillian Hadfield and James Heine suggest that the inaccessibility of legal services leads nearly forty percent of Americans to “lump” their civil justice problems, or do nothing to solve them.

In light of these distressing statistics, two hot topics in access to justice have emerged in recent years. In one camp are those who promote the need for a right to counsel—a “civil Gideon”—in a broader range of civil cases. In a second camp are those who propose innovative models for the distribution of scarce attorney resources, including the delivery of “unbundled,” or brief, services in lieu of full representation, as well as the licensing of non-attorneys to handle routine legal matters.

One complication in evaluating the various proposals to increase access to legal services is that we lack the robust empirical data necessary to determine whether, and in what forms, attorney representation makes a difference. And that is where Colleen Shanahan, Anna Carpenter, and Alyx Mark’s outstanding article comes in. Continue reading "How and Why Representation Matters"

The Unintended Consequences of Putting Family Off-Limits in Job Searches

Joni Hersch & Jennifer Bennett Shinall, Something to Talk About: Information Exchange Under Employment Law, 165 U. Pa. L. Rev. (forthcoming 2017), available at SSRN.

Being finicky by nature, I sometimes take issue with those who claim that certain questions in the interview process are illegal. While that’s true for questions about disability under the ADA and genetic information under GINA, I’ve long resisted the conventional wisdom that asking a female applicant about her marital status or her plans for having children is illegal. I agree that, even putting aside all sorts of other reasons why raising such personal topics may not be a good idea, there are legal risks in such inquiries. But at most it would be illegal to ask only women the questions, and even that is incorrect. A violation of Title VII requires an adverse employment action, and such questions by themselves don’t count.

At this point I can hear a chorus of voices objecting that, while that’s technically true, such questions hand a rejected applicant a case on a silver platter: they indicate that the employer thinks gender is relevant to the hiring decision, and the failure to hire is the adverse employment action. Plus, given Title VII’s motivating factor liability, an employer might find itself in violation of the law even if it would have made the same decision in any event. So it’s risky to start down this road from a legal perspective and, given societal norms, it seems a bad idea from any number of other perspectives – although there are those who see such questions as valuable for employers in a variety of ways, such as signaling family-friendliness or allowing the employer to tout the advantages of its environment, such as good schools.

All of which is why Joni Hersch and Jennifer Bennett Shinall’s recent posting on SSRN, forthcoming in the University of Pennsylvania Law Review, is so interesting. Something to Talk About: Information Exchange Under Employment Law explores the phenomenon of “little or no information about family status being provided in pre-employment interviews,” reaching the counterintuitive conclusion that the result is reduced opportunities for women. Continue reading "The Unintended Consequences of Putting Family Off-Limits in Job Searches"

Testamentary Freedom and the Implied Right to Inherit

Adam J. Hirsch, Airbrushed Heirs: The Problem of Children Omitted from Wills, 50 Real Property, Trust and Estate L.J. 175 (2015), available at SSRN.

One of the most frustrating aspects of the practice of estate planning and probate law is dealing with outdated plans. Specifically, when a testator has a change in circumstances and does not update his will or trust, we are left to speculate what the testator would have wanted.

Many jurisdictions provide statutory protections for children who were born or adopted by the testator after the will was created based on the presumption that these children were unintentionally disinherited. Professor Hirsch challenges this presumption by exploring the policy and the shortcomings of the various pretermission (“unintentional omission”) rules. He focuses on two policy perspectives: the concern that testators pretermitted children because of forgetfulness, and the concern that testators failed to update their wills to account for changed circumstances. He raises questions about whether a testator’s unambiguous plan should be disrupted and how long a will should remain obsolescent (i.e., may no longer reflect the desires of the testator), after a change in circumstance. Continue reading "Testamentary Freedom and the Implied Right to Inherit"

Thinking in More Nuanced Ways About Wealth and Income Inequality

In his book Capital in the Twenty-First Century, Thomas Piketty did us the great service of bringing the problems of wealth and income inequality to the fore. In the process, however, he also may have performed a bit of a disservice – making those problems seem simple, a mere function of the inequality r > g, where r is the rate of return to capital and g is the rate of economic growth. The solution, he suggested, was equally simple: a tax on wealth.

Bariş Kaymak and Markus Poschke, in The Evolution of Wealth Inequality over Half a Century: The Role of Taxes, Transfers and Technology, offer a more complex picture. They construct a general equilibrium model of the U.S. economy over the past half-century, incorporating (1) reduced income taxes on top earners (from a 45% effective rate for the top 1% in 1960 to a 33% effective rate in 2004, and from a 71% effective rate for the top 0.1% in 1960 to a 34% effective rate in 2004), (2) expansion of government transfers from 4.1% to 11.9% of GDP over the same period, and (3) higher pre-tax wage inequalities, which they attribute to technological change. (For these purposes, effective rate is defined as income taxes paid as a percentage of taxable income.) The question they ask and attempt to answer is: To what extent were the observed increases in wealth and income inequality over that period attributable to each of these changes or trends? Continue reading "Thinking in More Nuanced Ways About Wealth and Income Inequality"

The Challenge of Eminent Domain

Yxta Maya Murray, Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in the Motor City, 23 Geo. J. on Poverty L. & Pol’y 395 (2016), available at SSRN.

One usually thinks of law review articles as detached, dry, formal, and arcane. This is particularly true of those dealing with property. Even if articles are billed as an “interdisciplinary” effort, this generally means the occasional introduction of similarly detached and desiccated material from other fields.

The article Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in the Motor City, by Yxta Maya Murray, shatters that mold. In this work, Murray – a legal scholar and the author of six novels – writes of the infinitely complex layers of law, politics, psychological bias, and human need that eminent domain involves in a way that it has not been done before. Continue reading "The Challenge of Eminent Domain"