Yearly Archives: 2019

The Punishment and Treatment is the Process

Wendy Bach, Prosecuting Poverty, Criminalizing Care, 60 Wm. & Mary L. Rev. 809 (2019).

In The Punishment is the Process, Malcolm Feeley famously documented that in New Haven, Connecticut’s low-level criminal courts, pretrial detention, and its impact on work and family responsibilities, drove plea bargains. In Prosecuting Poverty, Criminalizing Care, Professor Wendy Bach demonstrates that, in Eastern Tennessee’s low-level problem solving court, the threat of pretrial detention may drive access to opioid treatment through “diversion” into drug courts.

Problem-solving courts, including drug courts, are one of the fundamental innovations in criminal justice over the past quarter of a century. These courts purport to change the behavior of offenders by providing intensive supervision and treatment for non-violent offenders whose offending derives from particular social, medical, or psychological causes. Their distinctive approach depends upon the claim that the criminal justice system must respond to the problem of drug addiction, as well as their non-custodial, inter-disciplinary, team-oriented and court-centered model of continuous judicial monitoring. Continue reading "The Punishment and Treatment is the Process"

From Russia with Law: Politics and Career Aspirations

Law school graduation is a critical turning point in the early career of legal professionals. Going to the public sector or to private practice marks two distinct career tracks, in both common law and civil law jurisdictions. However, research on legal education and the legal profession usually focuses on either a lawyer’s law school experience or her legal career after graduation, with little effort to capture this key moment of transition. Even recent studies aimed at bridging the gap, such as the American Bar Foundation’s After the JD study or John Bliss’s research on the professional identity of law students, have not yet analyzed law students’ professional or political orientations at that crucial moment, right before their graduation.

Kathryn Hendley’s new article on Russian law graduates helps fill in this gap. Based on a 2016 survey of 2,176 prospective graduates from 163 law departments or faculties across the vast territories of Russia, Hendley shows that law students who plan to go to state service and private practice markedly differ in terms of their support of state policies, attitudes toward courts and lawyers, as well as opinions on political cases. This is a remarkable study, especially considering the difficulty in obtaining empirical data in authoritarian regimes like Russia. It suggests that lawyers’ professional identities, political orientations, and career choices have deep roots in their educational years. In other words, early career choices and professional/political values go hand in hand. Those law students who are more supportive of the regime and the courts are more likely to go into public service. By contrast, law students who choose to start their legal careers in private practice, such as law firms and in-house legal departments, often are more skeptical about the state as well as the moral standards of lawyers. Continue reading "From Russia with Law: Politics and Career Aspirations"

Here’s The Term You’ve Been Looking For: Social License

Hillary Sale, Social License and Publicness (June 13, 2019), available at SSRN.

Why can’t Facebook persuade senators to help the company get its new Libra cryptocurrency off the ground? Why is VW running strange apology ads with Simon & Garfunkel’s Sounds of Silence and an allusion to light ahead? Many more questions could follow in this vein and the concept we’ve been looking for is an erosion of “social license.”

Sometimes an article has an idea so sticky that once you read it, you see relevant examples everywhere. You have a better vocabulary to discuss a phenomenon that you have long observed and might otherwise have used many words to describe. Professor Hillary Sale’s new article Social License and Publicness achieves all of this and more. Continue reading "Here’s The Term You’ve Been Looking For: Social License"

Why You Should Flip Out and Over to a Single-Member LLC

F. Philip Manns, Jr. and Timothy M. Todd, The Tax Lifecycle of a Single-Member LLC, 36 Va. Tax Rev. 323 (2017).

All professional estate planners are familiar with the family limited partnership (FLP) as a gift and estate tax vehicle to create fractional discounts for federal gift tax purposes and to reduce the decedent’s gross estate for federal estate tax purposes. The main thesis of Professors Manns and Todd‘s piece is that a single-member LLC (SMLLC) is “the ideal initial entity in a gifting strategy.” (P. 325.) They contrast the SMLLC with the FLP, which “the literature continues to describe and analyze,” despite the fact that “the actual state law entity now is often an MMLLC [multi-member LLC].” (P. 344.) The professors discuss how an SMLLC “can be used to blunt the negative effects” (P. 325) (arguably, more successfully than an FLP) as to Internal Revenue Code sections 2512, 1015, and 2036, in part because of a Tax Court case, Pierre v. Commissioner.

In Pierre, the Tax Court held that, although an SMLLC may be disregarded under the check-the-box regulations for federal income tax purposes, those regulations do not provide for the LLC to be disregarded for federal gift tax purposes when a donor transfers an ownership interest in an LLC. (P. 344.) Professors Manns and Todd skillfully argue that, based on Pierre, a taxpayer can take advantage of the differing treatments of an SMLLC for federal income tax and federal gift tax purposes in the following situations (I do not cover in this jot all that the professors wrote). Continue reading "Why You Should Flip Out and Over to a Single-Member LLC"

New Approaches to the History of Originalism

  • Paul Baumgardner, Originalism and the Academy in Exile, 37 Law & Hist. Rev. 787 (2019).
  • Aaron Hall, “Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism, 37 Law & Hist. Rev. 743 (2019).

Law and History Review’s recently published symposium, Originalism and Legal History: Rethinking the Special Relationship, offers a fascinating collection of articles, some by familiar commentators on constitutional originalism, some by newer voices. In the former category are Bernadette Meyler’s powerful critique of the Supreme Court’s reading of the history of the Sixth Amendment’s Confrontation Clause; Saul Cornell’s challenge to originalists to meet the standards of a“genuinely historical approach to reading Founding Era texts that draws on the best interdisciplinary methods available”;1 William Baude and Stephen E. Sachs’s defense of originalist analysis as “ordinary lawyer’s work,” distinct from and more limited than the historian’s task of understanding the past;2 and Logan Sawyer’s account of the role that academic historians played in the rise of modern originalism in the 1970s and 1980s.

The symposium also includes a number of contributions from scholars who are newer to the scene. Lindsay M. Chervinsky examines George Washington’s understanding of executive authority, as revealed in newly available writings by the first president. Michael Douma explores the history surrounding two early Dutch translations of the United States Constitution. Aaron Hall considers how participants in mid-nineteenth-century debates over slavery turned to the history of the Founding as authority for their positions. And Paul Baumgardner looks to the history of law schools in the 1980s to trace the foundations of modern originalism rise to prominence in the legal academy. The symposium issue also includes Kevin Arlyck’s illuminating review of Jonathan Gienapp’s important new book, The Second Creation: Fixing the American Constitution in the Founding Era. Continue reading "New Approaches to the History of Originalism"

Poverty, Privacy, and Living Out of Reach

Michele Gilman &  Rebecca Green, The Surveillance Gap: The Harms of Extreme Privacy and Data Marginalization, 42 N.Y.U. Rev. L. & Soc. Change 253 (2018).

If in general we are to understand that, in our new age of surveillance and pervasive use of data, privacy is dead, something else is happening in poor communities. In Poverty Law scholarship, privacy is framed more accurately as violently absent. Hypersurveillance, hyperregulation, criminalization, stigma, and structural racism have created a world in which, in Khiara Bridges’s words, “state intervention, coercion, and regulation”1 are the norm. Poverty Law scholars also know privacy as something that is, in its idealized liberal form, profoundly inadequate. As Dorothy Roberts argues, “merely ensuring the individuals ‘right to be let alone’—may be inadequate to protect the dignity and autonomy of the poor and oppressed.”2 Indeed a better notion of privacy “includes not only the negative proscription against government coercion, but also the affirmative duty of government to protecting the individual’s personhood from degradation and to facilitate the processes of choice and self-determination.”3

In The Surveillance Gap, Michele Gilman and Rebecca Green quite literally take all these realities and flip them over–revealing both the inevitable retreat that comes from intervention, coercion, and regulation, and the resulting lack of access to legal and institutional supports that might just support self-determination. But the flipping is just a piece of the contribution. After all, for those in the field, none of the facts are all that surprising. What is different here is what all this means for how we theorize privacy and how we create and support resistance. Continue reading "Poverty, Privacy, and Living Out of Reach"

Clarifying Populism

David Fontana, Unbundling Populism, 65 UCLA L. Rev. 1482 (2018).

Professor David Fontana’s Unbundling Populism is a valuable addition to a burgeoning body of comparative constitutional law scholarship on populism. Some scholars have provided helpful typologies of populism. Mark Tushnet, for instance, distinguishes between different forms of populism and identifies the constitutional implications of right- and left-wing populist policies. Others have adopted working definitions of populism and specified the ways in which populism (so defined) threatens key elements of liberal constitutionalism. Nicola Lacey, for example, claims that there is a general consensus on the conceptual elements of populism and identifies a variety of ways in which populists have threatened the rule of law, ranging from agenda-setting that threatens core rule of law institutions to the flouting of constitutional conventions. Still others have written about populism, while resisting the temptation to seek a workable definition. For instance, Kim Lane Scheppele turns away from trying “to define and delegitimate” populism and asks instead why so many liberal constitutionalists are “so obsessed with populism.” In the course of answering this question, she identifies threats that populists pose to liberal constitutionalism, often by using the rhetoric of liberalism and democracy.

In his remarkable article, Fontana pulls together several of the above threads in the comparative constitutional law literature on populism. He provides a working definition of populism, offers a novel typology, and warns that if we are imprecise in how we talk about populism, we may delegitimate concerns that are valid in a liberal democracy and we may legitimate leaders with authoritarian tendencies. Continue reading "Clarifying Populism"

Are Sign-in-Wrap Agreements Unreadable?

Uri Benoliel & Shmuel I. Becher, The Duty to Read the Unreadable, 60 B.C. L. Rev. __ (forthcoming, 2019), available at SSRN.

Uri Benoliel and Shmuel I. Belcher answer the question posited in the title to this review with an absolute yes. In a well-written, concise, and quite persuasive article, the authors test the readability of 500 of the most popular websites’ “sign-in-wrap agreements,” which require online users to accept terms before using the website’s services. The authors employ two readability tests that measure the average length of sentences and the average number of syllables per word. After detailing the legitimacy of these tests, the authors report that the sign-in-wrap agreements are no more readable than academic journal articles and thus are “unreadable” by consumers. The article proceeds by providing a nice discussion of the nature of the two tests, the results, and the implications for contract law. The article adds important weight to other studies that conclude that Internet agreements challenge consumers. Although hardly revelatory, such empirical studies increase the pressure on lawmakers to revise the duty-to-read rule in the context of consumer standard-form contracts.

Benoliel and Becher recognize that long sentences and multi-syllabic words are only two of the many problems facing consumers who make Internet agreements. But they reason that paying attention to part of the problem provides a step in the right direction. They, therefore, suggest a series of regulatory moves and judicial responses. Perhaps most important, the authors argue that vendors drafting consumer Internet contracts should have a duty to draft agreements that receive a favorable readability score. The authors also sensibly call on courts to continue policing substantive terms and suggest that judges should relax the duty-to-read rule when consumers are faced with unreadable contracts. The authors are more tepid about another possible reform, requiring vendors to include a plain-language version of the agreement alongside the contract. They reason in part that two versions of the agreement can only create confusion over which version to read and which is binding. Continue reading "Are Sign-in-Wrap Agreements Unreadable?"

Competing Interests and Best Practices in the Wake of #Metoo

Rachel Anrow-Richman, Of Power and Process: Handling Harassers in an At-Will World, 128 Yale L.J. Forum 85 (2018).

One of my favorite pieces published in labor and employment law this year is Rachel Arnow-Richman’s Of Power and Process: Handling Harassers in an At-Will World, which is a not-to-be-missed call for an overhaul of the contracting practices deployed by employers, one designed to shift the calculus that employers use to police sexual harassers of various corporate ranks. This piece examines a rarely thought-about angle of the #Metoo movement and the changes that it has precipitated and is yet to still effect. Professor Arnow-Richman, a scholar in employment law and in contract law, exposes this angle thoughtfully and sets forth a laudable proposal.

Professor Arnow-Richman’s starting point is, appropriately, as she puts it, the “extreme power imbalance in the workplace” that engenders “a world in which high-level decision-makers wield unrestricted control over employees,” while the entity can turn a blind eye to the way in which this unfettered discretion may be abused. (P. 90.) Lower-level employees are not accorded such latitude, and they are typically expeditiously disciplined or otherwise dealt with in the face of their inappropriate behavior. The #MeToo Movement, Professor Arnow-Richman correctly points out, was the force that kicked up a lot of the dust that enabled us to see just how uneven this landscape has been. Specifically, she argues that as society begins to grapple with balancing aggressive policing of workplace harassment with ensuring that accused harassers are accorded fair treatment (rather than summary and automatic dismissal), it needs to address inequities among workers at different ranks in the workplace. Moreover, she notes, misconceived corporate responses have companies punishing sexualized actions, rather than policing sex-based harassment that is not sexual in nature. Having astutely pointed out that “employers are inclined to tolerate sexual harassment and other misconduct by top-level employees but aggressively police ‘inappropriate’ behavior by the rank-and-file” (P. 85), Professor Arnow-Richman then sets out to address this problem. Continue reading "Competing Interests and Best Practices in the Wake of #Metoo"

Why Reparation?

Sandy Steel, Compensation and Continuity, Oxford Legal Studies Research Paper (July 20, 2019), available at SSRN.

“Wrongdoers may incur duties to compensate the victims of their wrongs.” This, the opening sentence of Sandy Steel’s Compensation and Continuity, sounds like a truism. Who would deny it? It’s hard to imagine the defendant in a normal tort lawsuit conceding liability but insisting that her concession in no way implied responsibility for repairing that wrongfully inflicted harm. In tort law, the obligation to repair harm tortiously inflicted seems to tumble out of the breach of the primary duty to avoid tortiously wronging someone. Moreover, the continuity here seems both reasonable and rooted in basic morality.

Suppose I am cycling past a grove of peach trees. I stop, sample a peach, and decide to fill my pockets and bag with as many peaches as I can. I take them home and make peach pies out of them. Unsurprisingly, it turns out that the peaches weren’t just there for the taking. They were the property of a farmer who was growing them for sale. After reviewing her security tapes and deploying face recognition technology, the farmer shows up at my door demanding compensation. Surely, her demand is justified. I was wrong to have taken the peaches. I committed the tort of conversion, even if my assumption that the peaches were just there for the taking was an innocent mistake. Having baked the peaches into pies I am now unable to return them. So I must compensate the farmer for the peaches. This is what Aristotle called corrective justice and what John Locke called the obligation of reparation. 1 The obligation of reparation seems to be a basic principle of morality, picked up in the law of torts. Continue reading "Why Reparation?"

Confronting Online Advocacy

Jeffrey L. Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court, 109 Cornell L. Rev. __ (forthcoming 2019), available at SSRN.

How do the Justices (and their law clerks) know what they know?  More specifically, how do they acquire the information that they rely on when deciding cases? Alli Orr Larsen has done more than anyone in recent years to answer this set of questions. From exploring the role of amicus brief “facts” in Supreme Court opinions to tracing “in house” fact-finding by the Justices themselves, Larsen has shown how information comes to, and is sought by, members of the Court in surprising and perhaps unsettling ways. It is thereforeunsurprising that Larsen, with renowned Supreme Court advocate Jeff Fisher, have new and important information about how facts and arguments reach chambers today.

The starting point of Virtual Briefing is that the digital age has opened new avenues for reaching the Justices. As readers of this site will no doubt acknowledge, many in the legal profession gather crucial information about cases online. Whereas yesterday’s lawyer might have consulted bar journals and op-ed pages to glean legal insights, today’s lawyer has her pick of podcasts, blogs, and twitter feeds devoted to the Court. As one example, according to ABA estimates, there were a mere 100 legal blogs in 2002 and more than 4000 by 2016. These sources provide what the authors dub “virtual briefing”— written or oral online advocacy, outside the normal briefing process, aimed at influencing the outcome of a case at the Supreme Court. Continue reading "Confronting Online Advocacy"