Monthly Archives: May 2021
Professors Grossman and Thomas have written a wonderful article that describes how courts have applied Young v. United Parcel Service, 575 U.S. 206 (2015), in which the Court considered whether pregnant employees are entitled to workplace accommodations that they need because of pregnancy. The Court’s decision did not resolve the issue; it merely provided trial and appellate courts a structure for thinking about the issue. Consequently, courts have used the Young decision in various, inconsistent ways.
Reading this article, Making Sure Pregnancy Works: Accommodation Claims After Young v. United Parcel Service, Inc., was fun because it is smart, straightforward scholarship that discusses a live controversy that lingers because the Supreme Court did not resolve the issue when it had the opportunity to do so. It reminds us that the Supreme Court often addresses only the case directly before it, leaving trial and appellate courts to consider broader issues in later cases. That is worth remembering in this era in which the Supreme Court’s job is thought by some to include fully resolving important legal issues for good. Continue reading "The Supreme Court’s Job Is Not to Provide Clarity"
I have long been perplexed by the inconsistency between the rights of divorcing spouses which are governed by family law rules and the rights of surviving spouses which are governed by trusts and estates law. While the rules governing the distribution of property at divorce and the elective share right both claim to reflect a partnership theory of marriage, Naomi Cahn’s article, What’s Wrong About the Elective Share “Right”?, demonstrates that the elective share does not further a partnership theory, at least not in cases involving subsequent marriages, and further fails to recognize and adequately balance the interests of multiple families.
Cahn analyzed all of the elective share cases from January 2014 though January 2019 available on Westlaw and Lexis. Although the number of cases was relatively small (71 cases), the results are illuminating. First, they suggest that the overwhelming majority of surviving spouses who seek an elective share are women. Seventy-eight percent (56/71) of the claimants in Cahn’s study were women. This is not surprising because, as Cahn explains, women tend to live longer than men and to marry men who are older than they, especially in subsequent marriages (marriages other than first marriages). I was, however, intrigued by Cahn’s findings that the typical elective share case pits a stepmother against her stepchildren, or, more precisely, against her former stepchildren. Eighty percent of the cases in Cahn’s study involve subsequent spouses who challenged a will that left most of the property to the decedent’s children from a prior relationship. Continue reading "Subsequent Marriages and the Elective Share"
Yitzhak Benbaji, Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law
, 39 Law & Phil.
473 (2020), available at SpringerLink
Is it permissible to take into account considerations of aggregate welfare, distributive justice, and others which concern the impact of the law on society as a whole in setting the content of private law rules? Certain Kantian theories—notably, Arthur Ripstein’s—seem to answer ‘no’: the only normative business of private law should be the realization of our innate right to freedom as independence. Benbaji’s article, Welfare and Freedom: Towards a Semi-Kantian Theory of Private Law, seeks to show that a superior Kantian theory should answer ‘yes’, but only in so far as a legislator is choosing between private law systems which equally realize our innate right to freedom. In his view, the Kantian state’s duty to realize a private law that secures freedom has strict lexical priority over other non-freedom-related considerations.
Consider a toy example to illustrate Benbaji’s basic idea. Suppose there are two different, inconsistent, schemes of private law rights in relation to unreasonable risk imposition, P1, and P2, which equally realize freedom as independence. According to Benbaji, it would be permissible for the Kantian legislator to choose between P1 and P2 on the ground that P2 maximises aggregate welfare. If, however, P1 realized freedom as independence but P2 fell short of realizing freedom as independence, then the Kantian legislature would be duty-bound to establish P1, even if P2 scored much higher on welfarist grounds. Benbaji calls his view ‘semi-Kantian’, then, because it accords lexical priority to Kantian freedom, but departs from Ripstein’s Kantian ‘minimalism’ in permitting non-freedom-based considerations to determine the content of private law entitlements once that lexical threshold is met. Continue reading "Kantian Justice and Aggregate Welfare"
Sarah R. Wasserman Rajec and Andrew Gilden, Patenting Pleasure
(Feb. 25, 2021), available at SSRN
In Patenting Pleasure, Professors Sarah Rajec and Andrew Gilden highlight a surprising incongruity: while many areas of U.S. law are profoundly hostile to sexuality in general and the technology of sex in particular, the patent system is not. Instead, the U.S. Patent and Trademark Office (USPTO) has over the decades issued thousands of patents on sex toys—from vibrators to AI, and everything in between.
This incongruity is especially odd because patent law has long incorporated a doctrine that specifically tied patentability to the usefulness of the invention, and up until the end of the 20th century one strand of that doctrine held that inventions “injurious to society” failed the utility test. And until about that time—and in some states and localities, even today—the law was exceptionally clear that sex toys were immoral and illegal. Patents issued nonetheless. How did inventors show that their sex toys were useful, despite being barred from relying on their most obvious use? Gilden and Rajec examine hundreds of issued patents to weave an engrossing narrative about sex, patents, and the law. Continue reading "Illegal Sex Toy Patents"
One of the hottest issues in fiscal policy today is how to reduce economic inequality. Louis Kaplow and Steven Shavell have famously asserted (here and here) that redistribution should be limited to the tax system. Edward Kleinbard urged a more expansive consideration of tax and transfer systems, admitting the possibility of regressive taxation to fund progressive spending. Daniel Hemel has raised the possibility of considering distributive consequences in cost-benefit analysis generally, not merely in the tax and transfer context – a move that President Biden authorized on his first day in office. I have argued that we cannot understand inequality without understanding a society’s nontax extractive rules – what I call “implicit taxation.” A recent Wall Street Journal op-ed claims, by contrast, that: “Not only is income inequality in America not growing, it is lower today than it was 50 years ago.” The op-ed reports a current U.S. income Gini index, after federal taxes and transfers, of less than 0.34, lower than the corresponding figure for 1970, when the top marginal income tax rate was 71.75%. (The Gini is a measure of inequality. A Gini of 0 means perfect equality; a Gini of 1 means perfect inequality.)
To date, this debate has been based primarily on data from the 19th and 20th centuries. In Economic Inequality in Preindustrial Times: Europe and Beyond, Guido Alfani reviews a new and rapidly expanding literature on wealth and income inequality in earlier eras and explores implications of that literature for existing theories of the causes and sources of inequality. Continue reading "A Treasure-Trove of Data on Inequality"
She has done it again! With her new article, Turning Neighbors into Nuisances, Professor Molly Brady once more takes us back into history to enrich our current understanding of property concepts.
Three years ago, I wrote a Jot about Professor Brady’s article, The Damagings Clauses. That introduction to her work has vastly informed my scholarship on eminent domain and inverse condemnation and I again recommend it to you. In addition, among several other articles, Brady published a piece in 2019, The Forgotten History of Metes and Bounds, which contains a compelling history of this method of property demarcation and the social functions it served to encourage development.
In Turning Neighbors Into Nuisances, she examines how tort law, contracts, and regulation interacted with each other and evolved into the system of land use regulation we know today. Continue reading "Nuisance, and Covenants, and Zoning, Oh My!"
The COVID crisis comes at a time of transition and peril for low wage workers, exposing and exacerbating their vulnerability under United States labor and employment law. The crisis also provides an opportunity for reimagining the state’s responsibility towards low wage workers. Even before the pandemic, in today’s gig economy an increasing number of workers lack any certainty about, and control over, their working lives. In Essentializing Labor Before, During, and After the Coronavirus Epidemic, Deepa Das Acevedo uses the COVID crisis to illustrate how the baseline at-will employment rules contribute to the precarity of the lives of low wage workers. Das Acevedo advocates rejecting the at-will doctrine to address that precarity.
In Essentializing Labor, Das Acevedo shows how the debate over who is an essential worker at the height of the COVID crisis revealed the failure of US labor law to protect the interests of low wage workers. Government measures to protect against COVID made it necessary to determine who is an “essential” worker. “Essential” workers such as medical workers, first responders, grocery store employees and food production workers were exempt from stay-at-home restrictions and could therefore keep their jobs even during the worst times of the COVID crisis. Continue reading "Securing Essential Work for Low Wage Workers"
Jeanne L. Schroeder, Taking Misappropriation Seriously: State Common Law Disgorgement Actions for Insider Trading
(Feb. 11, 2021) Cardozo Legal Stud. Rsch. Paper No. 625, available at SSRN
The disgorgement remedy strips a defendant of unjust profits. Disgorgement is gaining prominence as a civil remedy across a varied body of substantive laws, including intellectual property, contracts, fiduciary duties, as well as in government enforcement litigation to battle fraud and corruption. Disgorgement’s provenance ties to restitution and the equitable accounting for profits remedy. Even as memory of its equitable history fades, modern and novel applications of disgorgement flourish. Disgorgement relies on restitutionary principles because its primary goal is to undo unjust gain. It also deters opportunism and disincentivizes misconduct.
But if not applied properly, the danger is that disgorgement may punish, which is explicitly not a goal of the law of unjust enrichment and restitution. The Securities and Exchange Commission (SEC) has faced, and continues to face, an array of criticisms for aggressive uses of its disgorgement remedy pursuant to statutory authorization. Such concerns led to several Supreme Court rulings requiring adjustments to the SEC’s approach to disgorgement—most recently in Kokesh v. SEC, 137 S. Ct. 1635 (2017) and Liu v. SEC, 140 S. Ct. 1936 (2020). Congress subsequently amended the remedy to solidify the SEC’s authority to seek disgorgement, though the clarification oddly appears to classify the statutory disgorgement remedy as legal rather than equitable. This congressional revision is housed in a massive piece of unrelated legislation, the 2021 National Defense Authorization Act (“NDAA”), which Congress passed over a presidential veto. A parallel expansion of disgorgement remedies by the Federal Trade Commission (FTC) faced increased judicial scrutiny and ultimately a rebuff by the Supreme Court in AMG v. FTC, No. 19-508 (April 22, 2021) (narrowly interpreting the statute’s injunction power as not encompassing FTC authority to seek equitable disgorgement), with congressional restoration of full disgorgement power anticipated.
Much is changing rapidly, and it is unclear how successful the SEC will be at navigating new strictures while advancing enforcement goals. To be clear, the landscape is complex. In a forthcoming article, Taking Misappropriation Seriously: State Common Law Disgorgement Actions for Insider Trading, Professor Jeanne Schroeder seeks a solution to the complexities. She advances private state common law actions for disgorgement as a cleaner way to remedy insider trading violations. The potential advantages of private state-based litigation with application of the disgorgement remedy are worth serious consideration. And the notion of parallel pursuit of state common law remedies may well be a wise approach for other governmental enforcement regimes. Continue reading "Private State Actions to Disgorge the Wrongful Gains of Insider Trading"
Suppose you became aware that a person advocated for doing abhorrent things, and if given the opportunity, would provide assistance to others who directly did those things. Suppose, for example, that this person thought that one way to deter refugees from seeking asylum in the United States would be to forcibly separate children from their parents, locking children in cages in squalid camps that would shock Charles Dickens, and making it impossible to reunite families subsequently. If this person loudly advocated for these things at a bar, you might get up and move to a different barstool. If this person were your neighbor, you might avoid making eye contact with them on the street. If this person were a member of your family, you would dread Thanksgiving dinner.
If this person were a high-ranking government lawyer, however, they would likely suffer no adverse consequences in their career and might even be promoted to a higher position. This is the concern animating Leah Litman’s powerful and passionate recent article – a contribution to a symposium on Jack Balkin and Sandy Levinson’s book, Democracy and Dysfunction. Networks of elite lawyers are so conflict-averse that they look the other way when members of their club participate in actions that threaten fundamental democratic and human-rights norms. (Pp. 305, 307.) They have an opportunity to sanction immoral conduct by “withholding certain future government appointments and promotions from the lawyers” (P. 307), but instead they welcome these wrongdoers back into the fold of the respectable legal profession. (P. 317.) There are some things one could do that would result in ostracism and exclusion from polite society, so “[w]hy is enabling racist and cruel family separations not on the prohibited list of actions?” (P. 318.) Continue reading "Canceling Lawyers"
For almost half a century, Roe v. Wade has been a dominant presence in debates about the Constitution and the Supreme Court in the United States. Other contentious rulings come and go. (In 1973, the year in which the Supreme Court decided Roe, commentators typically identified obscenity regulation as the most explosive issue the justices faced. No one mentioned Miller v. California at the most recent Supreme Court confirmation hearings.) But Roe remains, year after year, a uniquely urgent and divisive focal point in the nation’s constitutional discourse. In her important and insightful new book, Abortion and the Law in America: Roe v. Wade to the Present, Mary Ziegler explains how the debate over Roe has evolved and why it endures.
This is Ziegler’s third book on Roe’s impact on American society and law. In her first, After Roe: The Lost History of the Abortion Debate, published in 2015, she explored struggles over abortion in the immediate aftermath of Roe. The debate she found in this period was more fluid and multivalent than the pro-choice/pro-life, liberal/conservative, Democratic/Republican dualism that solidified in the 1980s and remains today. In 2018, Ziegler published Beyond Abortion: Roe v. Wade and the Battle for Privacy, an examination of how Roe reshaped legal debates in contexts outside abortion. Continue reading "Rights, Facts, and Roe"