Nov 14, 2024 Deepa Das AcevedoWork Law
Yiran Zhang,
Home as Non-Workplace, __
B.U. L. Rev. __ (forthcoming), available at
SSRN (Mar. 11, 2024).
Everyone reading this jot likely has a story about how the home/office divide collapsed for them in 2020. (I have several.) But even among work law scholars, there aren’t too many of us who do more than periodically gripe about the divide’s demise. (I don’t.)
To be sure, we all understand that domestic labor is undervalued, underpaid, and insufficiently protected. But what about domestic space? Specifically, what about domestic space that is no longer, or no longer only, domestic? Yiran Zhang’s forthcoming article, Home as Non-Workplace, gives us a timely and comprehensive way to think about the home/office divide and what it does, could, and should mean for work regulation. Continue reading "This Place is My Workplace… This Place is Your Workplace…"
Nov 13, 2024 Kent D. SchenkelTrusts & Estates
Brian Galle, David Gamage & Darien Shanske,
Money Moves: Taxing the Wealthy at the State Level, 112
Cal. L. Rev. __ (forthcoming, 2025), available at
SSRN (January 14, 2024).
Polls show that a majority of Americans believe that inequality is increasing, and that taxes should be raised on the very wealthy. But income tax rates on high earners remain historically low, and estate planning techniques that minimize the reach of federal transfer taxes proliferate. What about state-level taxation? Conventional wisdom holds that progressive state tax regimes backfire by triggering wealth flight to low-tax jurisdictions, leading many states to stick with regressive sales and property taxes. But the consequences of progressive state tax policy are misunderstood, and states have many options, write Brian Galle, David Gamage and Darien Shanske, in their comprehensive, informative and practical article, Money Moves: Taxing the Wealthy at the State Level.
The tax theory of “fiscal federalism” holds that only the federal government should impose progressive taxes to fund government benefits. Fiscal federalists argue that if individual states undertook to create progressive tax regimes, the wealthy would just relocate to other states, creating “horizontal externalities.” Therefore, the federal government has put in place its more progressive income tax, which enables it to return tax revenues to the states in the form of grants or other types of revenue sharing. Continue reading "Practical Considerations for State Taxation of Wealth"
Nov 12, 2024 Sandy SteelTorts
In his excellent book, Egalitarian Digital Privacy: Image-Based Abuse and Beyond, Tsachi Keren-Paz defends a number of interesting and provocative claims about the liability of persons in relation to the distribution and viewing of intimate images whose dissemination and in some cases, production, is non-consensual, such as revenge porn. As with Keren-Paz’s other work, the book is characterised by an engagement with foundational issues in tort law – causation, fault v strict liability, positive duties – and a detailed tracing through of the implications of theoretical positions on those issues for an important social problem.
The book’s primary concern is the liability of internet intermediaries – mainly, hosts and search engines – and viewers in relation to wrongful image-based content. I focus here (to the exclusion of the book’s rich discussion of several other issues) on the book’s treatment of three foundational matters raised by such cases: (1) the extent to which intermediaries ought to have positive duties to remove content that amounts to a violation of the victim’s privacy rights, (2) the causal problems that arise in relation to claims for image-based harm that is massively overdetermined, (3) the standard of liability for claims against viewers and others. Continue reading "Rethinking Digital Privacy in Tort"
Nov 11, 2024 Rebecca TushnetTechnology Law
Sometimes, it’s the small details that hobble even the most easily explained policies. When California decided to expunge felony records for marijuana offenses, relief for former felons was hampered by a lack of comprehensive recordkeeping and reliance on proactive individual action (the expungement wasn’t automatic; you had to ask for it). These and similar stumbling blocks can be weaponized by opponents, as occurred with the restoration of voting rights to felons in Florida. It’s a technological spin on the well-known legislator’s warning, “If I let you write the substance and you let me write the procedure, I’ll screw you every time.”
In Recoding America, Jennifer Pahlka makes the argument that there doesn’t even have to be a bad guy on the procedure side for this to happen. This is a book by a technocrat with a persuasive argument for a measure of technocracy: America’s ways of lawmaking could be greatly improved by borrowing from the project management concept of agile development, which allows people lower in the hierarchy to make consequential decisions rather than being burdened by having all the rules have to be specified in advance. The latter, “waterfall” development, can lead to deadly (sometimes literally) complexity and policy failure. When policy is too rococo and reticulated, such as having nine different definitions of a “group” of doctors for Medicare purposes, throwing money at the problem rarely helps. Neither does outsourcing and oversight, both of which Pahlka believes can help when properly deployed but often end up generating more layers of bureaucracy. Continue reading "Fixing the US Code"
Nov 8, 2024 Charlotte CraneTax Law
Alex Zhang,
Fiscal Citizenship and Taxpayer Privacy, __
Colum. L. Rev. __ (forthcoming 2025), available at
SSRN (April 2, 2024).
In Fiscal Citizenship and Taxpayer Privacy, forthcoming in the Columbia Law Review, Alex Zhang explores ways of thinking about the effects of the disclosure of individual income tax returns. Disclosure of information about individual tax liabilities is one of those topics that won’t ever go away. Even if no imaginable contemporary Congress would reinstate a requirement that information about individual tax liabilities be publicly available, it is well worth thinking about the circumstances in which disclosure would be justified. After all, most state property tax systems include disclosure not just of the values subject to tax, but of taxpayer compliance. And, as Zhang describes, such disclosure was on more than one occasion a part of the administration of the federal income tax. Especially in light of this history, it is worth exploring whether an income tax—especially the individual income tax—should be so different.
The consensus answer seems to be that the intrusion on individual taxpayer privacy cannot be justified by the possibility of enhanced compliance, especially when research indicates that the impact of disclosure on compliance is ambiguous. Zhang’s critique of this response rests on the idea that increased knowledge of the way taxpayers—especially wealthy taxpayers—interact with the income tax system is the key to a more democratic and egalitarian tax system and therefore a more democratic and egalitarian fiscal polity. Continue reading "Disclosing Tax Data: Maybe the Rich Are Different"
Nov 7, 2024 Roger M. MichalskiCourts Law
Alexandra D. Lahav, Peter Siegelman, Charlotte Alexander, & Nathan Dahlberg,
No Adjudication (July 29, 2024), available at
SSRN.
Much has been written about the inaccessibility of court data. State courts are a mixed bag, but most state dockets are difficult to study. Tribal courts are even more heterogenous. The federal system provides reasonable top-level data but makes large-n studies of litigation activity tricky and costly. Commercial solutions are often pricey, incomplete, or both. The dearth of good data has been a massive impediment to the “democratization” of empirical studies in civil procedure. Scholars without significant research budgets or special connections have been stymied from answering the many empirical questions we all have about the day-to-day work of courts.
It is in this context that No Adjudication shines. Many civil procedure teachers have a sense of how many cases terminate early and without much fuss. Few can offer more than anecdotes when students inquire about specifics. No Adjudication fills that gap in important ways. Continue reading "Democratizing Dockets"
Nov 6, 2024 Sarah SchindlerProperty
In recent years, some states have attempted to address the U.S. housing crisis by pulling certain aspects of zoning control that affect housing supply away from local governments. In a few states, this preemption focuses on eliminating or limiting single-family zoning, while in others it more narrowly eliminates limits on accessory dwelling units (“ADUs”). State preemption has shown some promise (and also faced some legal challenges). Some land use scholars have questioned whether changing zoning laws is enough to address housing supply and affordability because much single family housing in the U.S. is within neighborhoods that are governed by covenants, conditions, and restrictions (“CC&Rs”). Those CC&Rs often mirror or go further than the local zoning code when it comes to restrictions on density, height, and residential use.
Ken Stahl’s new article addresses this concern head-on using examples from California which has both preempted local zoning and begun to limit or override certain CC&Rs. Stahl considers whether property owners have a viable claim under the Fifth Amendment Takings Clause when the state overrides CC&Rs so that owners can no longer rely on or enforce these restrictive covenants. Continue reading "States May do Away with Single Family Zoning, But What About the Covenants?"
Nov 5, 2024 Wendy Anne BachLexPoverty Law
For those who care about the scope and effectiveness of America’s federal safety net, the last two years have been disappointing. To be frank, it’s always been disappointing, but this time we were naïve enough to get our hopes up. In the wake of the pandemic we saw, and loudly celebrated, significant expansions and reforms. Even more loudly, we touted the harms prevented, and the surely incontrovertible good that resulted for poor families and poor children and called for many of those reforms to become permanent. First among many, in this category, was the brief restructuring and expansion of Child Tax Credit, which significantly broadened both the size and reach of this benefit, reducing child poverty down to historic lows. That change, along with significant expansions to unemployment benefits, Medicaid, and housing and food assistance, dramatically altered and expanded the reach of the federal safety net. There were flaws, mistakes, and holes no doubt, but overall, the extent and effect of assistance reform was breathtaking. Despite the clear positive effect of these policies and despite significant political investment by center/left policy organizations and the Biden administration, in large part attempts to make these changes permanent failed.
The authors of the article celebrated in this jot, Andrew Hammond, Ariel Jurow Kleiman and Gabriel Scheffler, have written previously in 2020 in How the Covid-19 Pandemic Has and Should Reshape the American Safety Net. In their latest piece, the authors engage in a crucial post-mortem analysis, and identify and propose a potentially highly effective solution to a key post-failure question: “the next time there is an opportunity to strengthen anti-poverty programs, what should Congress do?” Their answer, while perhaps not as lofty as the sweeping vision of those who hoped that the pandemic reforms would translate into a far broader and more universally-oriented system of support, provides a workable, effective, responsive and, potentially more resilient set of mechanisms for reform the next time opportunity calls. Continue reading "Rethinking Federal Strategy After Disappointment"
Nov 4, 2024 Christopher W. SchmidtLegal History
In The Taft Court: Making Law for a Divided Nation, 1921–1930, the latest addition to the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Robert Post offers a masterclass of legal analysis and historical scholarship. Admirers of Post’s scholarship will find in this book yet more evidence of his rare skill for illuminating the nuances of legal doctrine and identifying the social forces and ideas that explain and animate that doctrine. The Taft Court also gives Post an opportunity to demonstrate his equally admirable skill at synthesizing massive amounts of research material into an engaging and compelling historical narrative—no small an achievement for a volume that comes in at over 1500 pages.
How does he pull off the trick of making a lengthy, serious work of scholarship an inviting experience for the reader? It helps that Post writes so clearly, even when navigating complex areas of the law. He also leans into the biographies of the members of the Taft Court, crafting subtle, sensitive portraits of not only the famous justices, such as Holmes, William Howard Taft, and Louis Brandeis, but also the infamous (the irascible racist James McReynolds) and those who have been largely forgotten. No one is better than Post at the difficult task of connecting biography and jurisprudence. Continue reading "A New History of a Court Divided"
Nov 1, 2024 Sean CoyleJurisprudence
This brilliant and highly interesting essay examines the nature of polities that place central emphasis on the rule of law and thereby upon the language of rights, a language which “smothers and extinguishes” alternative forms of ordering. (P.553.) In doing so, the language of rights erodes its own foundations, leading to a society of no rights but instead of technocratic reasoning. Rights are peremptory. Simmonds describes the sharp distinction between human goods (e.g. it would be good to do x) with rights(I have a right to do x). The distinction is not metaphysical but the result of artifice that underpins our familiar form of association. (P.553.) This does not exclude those aspects of human flourishing that are better understood in terms of goods, values, or interests, where peremptory reasoning gives way to weighing and balancing. In setting out the issue in this way, Simmonds puts a significant new perspective upon arguments he has been advancing for some time: the relationship of rights to ordinary forms of human activity, the mutability of rights discourse, and a preference for the will theory of rights over the interest theory.
Simmonds is appalled by recent trends in constitutional law, which mistake the relative importance of rights for their peremptory force. Where such force is eliminated in favour of questions of importance or proportionality, the traditional hallmarks of legality and legitimacy are significantly eroded. (P.556.) Simmonds returns to this theme at a later point in the article. Continue reading "An Epoch of Rights"
