Aug 8, 2024 Ilya SominConstitutional Law
If one of the purposes of constitutional law is to protect liberty against abuses of government power, the War on Drugs must be regarded as one of America’s greatest constitutional failures. Over the last century, and especially since its expansion beginning with the Controlled Substances Act of 1968, the War on Drugs has led to thousands of needless deaths, the imprisonment of hundreds of thousands of people, and severe violations of civil liberties—all without doing much to curb the social problems of drug abuse and addiction. With rare exceptions, constitutional law has done little to curb these great evils.
In The Constitution of the War on Drugs, David Pozen gives us the most through and insightful overview of this failure to date. As he demonstrates, there were a number of plausible constitutional arguments for curbing the War on Drugs that—if accepted by the courts—might have significantly limited at least the most severe abuses. But, for the most part, they were rejected. He also offers useful suggestions for future strategy by drug law reformers. Continue reading "The War on Drugs as a Constitutional Failure"
Aug 7, 2024 Christopher WalkerAdministrative Law
If it is true that the Roberts Court overrules one precedent per year, Humphrey’s Executor is likely one of its next targets. Nearly ninety years ago, the Supreme Court in Humphrey’s Executor upheld the constitutionality of statutory for-cause removal protections for the multimember heads of the Federal Trade Commission (FTC). That precedent allowed Congress to continue to insulate the leaders of so-called independent agencies from at will firing by the president. Many progressives view Humphrey’s Executor as critical for preserving expert-driven regulatory governance insulated from excessive politics. Many conservatives, by contrast, view Humphrey’s Executor as a direct threat to political accountability through presidential control.
As the debate over Humphrey’s Executor intensifies, one may reasonably wonder whether independent agencies are as great as progressives believe or as dangerous as conservatives fear. In The Independent Agency Myth, Neal Devins and David Lewis shed some important empirical light on those questions. Based on two large surveys of agency officials, they conclude that “the independent agency model no longer works; most independent agencies are not particularly expert, not particularly influential, and their policies and policy-making processes are subject to (not insulated from) elected branch oversight and manipulation.” (P. 1309.) This conclusion is reminiscent of my colleague Dan Crane’s take that today’s FTC “bears almost no resemblance to the Progressive-technocratic vision articulated by the [Humphrey’s Executor] Court. The Commission is not politically independent, uniquely expert, or principally legislative or adjudicative.” Continue reading "A World Without Humphrey’s Executor?"
Aug 6, 2024 Elizabeth C. TippettWork Law
In her new book, Racial Emotion at Work, Tristin Green discusses the social science regarding our emotions about race and racism and what it implies about our interactions at work. (P. 28.) This research goes beyond the more familiar research on implicit bias, cognitive biases, and automatic associations.
Green examines, for example, the anxiety white people face in interracial interactions (P. 43), and how they avoid such interactions. (P. 45.) She also examines research suggesting that Black men and women are more likely to view adverse reactions through a racial lens but are reluctant to share those experiences with others. (Pp. 38-39, 112-15.)
In so doing, Green criticizes the cultural tendency to prioritize the racial emotions of white people—in particular, the fear of being called “racist”—over the lived experience of Black men and women who experience adverse treatment. To illustrate, she turns to Title VII jurisprudence: for example, in a case where the plaintiff called a supervisor “racist in front of subordinate staff,” the court took that as enough for a legitimate non-discriminatory basis for discipline. (P. 82.) Continue reading "Racial Emotions As Symptoms of Systemic Bias"
Aug 5, 2024 Carol Necole BrownProperty
Noah M. Kazis,
The Radical Fair Housing Act, 111
Va. L. Rev. __ (forthcoming, 2025), available at
SSRN (February 27, 2024).
Is geography fate, as Ralph Ellison proclaimed; is geography our destiny; does it determine our life’s course? I tend to think so because my own personal life story has been incredibly, indelibly, positively impacted by geography. Perhaps this is why I was drawn to share Noah M. Kazis’ forthcoming article, The Radical Fair Housing Act. In his article, Professor Kazis describes the radical features and nature of the Fair Housing Act (FHA) that call into question whether housing markets should be restructured in pursuit of housing equality rather than conceding that housing equality may only be pursued within existing structures.
While some take the view that housing discrimination and segregation continue to persist, that an adequate stock of affordable housing continues to elude most communities, and that this evidences the failures of the FHA, Kazis’ approach is different, fresh, and yes, even hopeful. He has chosen to focus on the FHA’s strengths and its “structural ambitions” that make the FHA’s approach to discrimination “broader, more searching, and already more structural” than Title VII’s anti-discrimination approach. (P. 16.) This is not to say that Kazis ignores the FHA’s weaknesses; rather, he chooses to focus on the FHA’s “radical ambitions” because only by recognizing the distinctive nature of the FHA’s structure and approach to housing discrimination, can the FHA’s breadth and strength be fully appreciated and built upon. Continue reading "Perhaps Geography is Everything"
Aug 2, 2024 Allison Anna TaitTrusts & Estates
Climate change and environmental justice are topics that thread through and are pushing the boundaries of legal inquiry in multiple doctrinal areas. From reproductive justice to corporate investing, environmental concerns have emerged as both salient and pressing. One subject area still awaiting robust exploration of the relationship between environmental concerns and legal rules is inheritance law. This lack of energetic conversation about the environment and estate planning might be, on the one hand, surprising. Estate planning is all about the future and provisioning future generations. On the other hand, it is perhaps not a complete surprise since estate planning tends to focus on the preservation of private family wealth rather than the creation of extended public benefit.
Given the need for increased scholarly attention to this area, it is encouraging to see two short pieces about environmental justice and estate planning in the Fall 2023 volume of the ACTEC Law Journal dedicated to a critical analysis of inequality in the field. The first of the two articles is Trace Brooks’ article, Incorporating Social Justice and Environmental Sustainability into Estate Planning Through Conservation Easements. In the article, Brooks explores “the intersection of estate planning, private land conservation, social justice, and environmental sustainability,” and discusses ways in which conservation easements have been used both to entrench and erode inequality. Conservation easements, in which a landowner donates an easement to a conservation organization (think a land trust or even the government) in exchange for a tax deduction, have historically been a tool for wealth preservation and obtaining tax advantages. So, while these kinds of easements provide environmental benefit by restricting development and preserving the land, they have also comprised a mechanism for consolidating and increasing family wealth, particularly for white families and communities, and particularly for those who can afford homes and land in desirable geographies. The existence and effects of this trend in high-wealth locales have been compellingly documented and explored by sociologists like Justin Farrell in Billionaire Wilderness and Lisa Sun-Hee Park and David Pellow in The Slums of Aspen. Continue reading "The Wealth Planning Climate"
Aug 2, 2024 Victoria J. HanemanTrusts & Estates
A billionaire invests in human cryopreservation so that his head may be preserved in hopes of his entire person being revived later. His head, and his favorite dog, will be preserved at minus 320 degrees Fahrenheit in a cylindrical tank filled with liquid nitrogen in the hopes that the advanced medical technology of the future will allow for their reanimation. And no, the technology does not currently exist to reanimate a cryogenically preserved human or dog, but cryogenics companies are optimistic that it will be possible in the future.
As part of his revival plan, the billionaire consults with an estate planning attorney. He would like a perpetual trust to be established in the state of South Dakota, so that he and his dog need not be poor in the future. The perpetual trust can shelter a large chunk of money (often transfer tax-free) for centuries, in relative secrecy. Because of the climate crisis, our unfrozen billionaire may awaken to find himself in a world without Greenland or Antarctica. Important megacities will be gone, including New York City, London, Shanghai, Mumbai, and Bangkok, and so he needs to buy a new house. Or two.
Planning for immortality in a bleak apocalyptic future has become big business for an unknown number of billionaires who also appreciate the importance of maintaining status as a “have” (instead of a “have not”). This billionaire hypothetical (which may not actually be hypothetical—I will leave it to you to figure out) raises a myriad of rarely discussed ethical issues for both estate planners and legislators. Estate Planning Ethics for the Apocalypse, by Carla Spivack, published in 2023 in the ACTEC Journal, seeks to open this important conversation. Continue reading "Climate Conscious Advocacy and Perpetual Burdens"
Aug 1, 2024 Christopher J. RobinetteTorts
In discussing tort theory, Professor Gregory Keating sometimes refers to a “third way.” By this, I take him to mean an approach to tort theory different than, and drawing from, the two major ways of explaining and/or justifying tort law. For decades, those dominant approaches were law and economics efficiency and corrective justice, though I suspect civil recourse theory has now supplanted corrective justice as the primary “rights-based” theory.
Keating’s own version of a third way emerges in the course of reading his excellent book, which builds on his previous scholarship. While engaging with law and economics (hereafter “L&E”) and corrective justice (hereafter “CJ”)/civil recourse (hereafter “CR”) scholars, Keating constructs a theory of tort law that draws from both sources. Keating is not, however, Solomonic in the sense that he is simply splitting the baby. He embraces a deontological perspective that he believes is inherent in tort law. In sum, “[t]ort is about what we owe to each other in the way of coercively enforceable obligations not to impair or interfere with each other’s urgent interests as we go about our lives in civil society.” (P. 6.) Continue reading "Professor Keating’s Third Way"
Jul 31, 2024 James GrimmelmannTechnology Law
Sarah B. Lawsky’s Coding the Code: Catala and Computationally Accessible Tax Law offers an exceptionally thoughtful perspective on the automation of legal rules. It provides not just a nuanced analysis of the consequences of translating legal doctrines into computer programs (something many other scholars have done), but also a tutorial in how to do so effectively, with fidelity to the internal structure of law and humility about what computers do and don’t do well.
Coding the Code builds on Lawsky’s previous work on formal logic and its advantages for statutory interpretation. (Formal logic, sometimes called “symbolic” or “mathematical” logic, involves the precise and rigorous analysis of symbolic expressions representing arguments, such as “p & ¬q” to mean “p is true and q is not true”.) In her 2017 A Logic for Statutes, she observed that many statutory provisions have a characteristic structure: rules subject to exceptions. A typical rule says that WHEN certain conditions are satisfied, THEN certain consequences follow, UNLESS one of several exceptions applies. Exceptions have exceptions of their own: interest payments are deductible, unless they are personal, unless they are mortgage payments. Continue reading "When Law is Code"
Jul 30, 2024 Adam RosenzweigTax Law
Rebecca M. Kysar,
The Global Tax Deal and the New International Economic Governance, __
N.Y.U. Tax L. Rev. __ (forthcoming), available at
SSRN (May 16, 2024).
In 1944 forty-four nations signed an agreement in Bretton Woods, New Hampshire, which laid the foundation for what would become the modern international economic system. The so-called Bretton Woods system was built on the commitments to free and open trade, stable monetary exchange markets, and investments in global public goods. One of the motivating factors underlying the Bretton Woods agreement was to prevent the kind of trade protectionism, isolationism, and hyperinflation that had been seen as some of the geopolitical factors ultimately leading to World War II. While the Bretton Woods agreement itself only lasted until 1971, the commitment to liberalized trade, liquid currency markets, and investments in global public goods continued and came to be known collectively as the “Washington Consensus.”
In recent years, however, cracks have begun to emerge in the Washington Consensus under the stress of the Financial Crisis, the COVID pandemic, and increased protectionism and trade wars. At the same time, the Organization for Economic Cooperation and Development (OECD) began the single most significant overhaul of the global tax regime since its inception through its Base Erosion and Profit Shifting (BEPS) project. Over one hundred and forty countries eventually reached near universal agreement on fifteen separate Action Items fundamentally overhauling the international tax regime. This success stands in stark contrast to the otherwise perceived crumbling of the Washington Consensus. Was this merely another notable example of tax exceptionalism? Or could the success of BEPS serve as a model for revitalizing the Washington Consensus?
Professor Rebecca M. Kysar intervenes in this debate in her new article, The Global Tax Deal and the New International Economic Governance. The underlying premise of the article provides that the success of the BEPS negotiations proves the demise of the Washington Consensus, not its survival. Continue reading "Is There Finally a New World (Economic) Order?"
Jul 29, 2024 Barbara LevenbookJurisprudence
The title of this review should begin, “It should go without saying.” Unfortunately, given a spate of recent fashionable criticisms of retributivism—by Martha Nussbaum, Vincent Chiao, Erin Kelly, and others—the thesis defended in Dr. Leora Dahan Katz’s article needs saying and defending. That thesis is that there is no theoretical incompatibility between commitment to a retributive justification of punishment and promoting human welfare; and there is no evidence (at least, none provided by antiretributivists) of an empirical incompatibility in adopting a retributive rationale for punishment and yet trying to promote (albeit not to maximize) human welfare (e.g., by addressing human needs before criminal conduct occurs, educating about sexual assault, or, I would add, showing mercy or compassionate release under unusual circumstances). There is yet no reason proffered to think that the retributive theory of punishment needs replacing by a welfare-oriented one.
Dahan Katz carefully disentangles various arguments contrary to her thesis: causal, psychological, conceptual. She refutes, with particular precision and philosophical sophistication, an axiological argument to the effect that retributivism is committed to viewing human suffering as having intrinsic, not merely instrumental, value, and that this is incompatible with a welfare orientation. Her refutation involves what is, given the antiretributivist literature, a much-needed reminder about the precise contentions underlying various forms of retributivism. Continue reading "It Goes Without Saying in Justifying Criminal Punishment"
