Jul 12, 2024 Pamela BookmanCourts Law
Gerald S. Dickinson,
Judicial Laboratories, ___
U. Pa. J. of Const. L __ (forthcoming, 2025), available at
SSRN (June 18, 2024).
State courts contain multitudes. This is true within a particular state court system. Several states have multiple trial courts—New York, one of the largest court systems in the world, famously has eleven—handling a wide variety of matters. It is also true across state courts and state court systems throughout the country. State supreme courts are increasingly in the spotlight as the keepers of state substantive law on important issues such as abortion and election law. But states’ various approaches to court procedures and courts’ structural role in democracy have received less attention.
This is why I like Jerry Dickinson’s work on state courts as laboratories of democracy. He urges us to see state courts not only as interpreters of law and articulators of rights (and thereby developers of public policy), but also as places for experimentation in procedure and institutional design. Readers of this blog know that procedure and court structure matter. The delay of a trial date or the justiciability of an issue in one court as opposed to another can have significant consequences for our law and our democracy. In state or federal courts, individual judges can make procedural determinations or a panel of judges can interpret law. Continue reading "State Courts as Laboratories of Structure, Procedure, and Democracy"
Jul 11, 2024 Caprice RobertsLexRemedies
Monica Haymond,
Intervention and Universal Remedies,
91 U. Chi. L. Rev. __ (forthcoming, 2024), available at
SSRN (Feb. 1, 2024).
National injunction litigation in public law cases is prevalent, controversial, and important. Universal remedies such as national injunctions are increasingly prominent in high-profile cases. The availability and shape of such remedies always matter to the parties, but the effect on nonparties is another key consideration. Much scholarly attention exists on the efficacy of such relief, but gaps in the literature remain. Professor Haymond fills a gap on the unexpected role of intervenors on these bold remedies. Her recent work, Intervention and Universal Remedies, offers provocative, detailed data that demonstrates significant consequences of intervenors on litigation seeking national injunctions. Ultimately, this rigorous examination reveals how the treatment of intervenors has immense impact and warrants deeper attention.
Professor Haymond examines over 500 national injunction cases to reveal that an unexpected, outsider participant has an outsized effect on outcomes. Her study uncovers that intervention in such suits is “commonly sought, often contested, unpredictably obtained, and enormously consequential.” (P. 6.) Professor Haymond poses an important question: What if the federal rules governing such high-stakes litigation no longer protect the values they were designed to serve? The Federal Rule of Civil Procedure covering intervenors is Rule 24, and its purpose is threefold: “to secure a meaningful opportunity for affected nonparties to participate in cases affecting their interests, to enhance judicial efficiency, and to safeguard some measure of party control.” (P. 6.) Yet Professor Haymond concludes that intervention practice in national injunction cases effectively does not advance those values. Continue reading "Universal Remedies and the Consequential Roles of Intervenors and Judicial Discretion"
Jul 10, 2024 Orit GanContracts
Inequality of bargaining power between parties is a significant concern in contract law. Parties are not always equal, and negotiations may occur under conditions of power imbalance, impacting the contract terms.
A fascinating new article by Rebecca Stone explores which determinants of inequalities of bargaining power between contracting parties should be legally relevant.
The article begins by defining bargaining power as the party’s ability to ensure that the contract terms serve their own objectives. Inequality of bargaining power means that one party possesses a greater ability to do so than the other. Bargaining power is influenced by factors both within the party’s control (such as their interest in the contract) and outside their control (such as the actions of the other party and social conditions), as well as by objective factors (such as the market) and the parties’ perceptions (such as a party’s beliefs regarding the other party’s interests). Continue reading "Contract Law and Inequality"
Jul 9, 2024 Pat GudridgeConstitutional Law
Neither fish nor fowl? Canons of statutory interpretation seem to exist in a liminal space. They react to statutory language, for example, without obviously fitting “inside” any singled-out statute particular authorization. Maybe canons are expressions of judicial statecraft—ad hoc implementations of adjudicative norms, rather than primary legal instruments. We still remember Brandeis and Frankfurter and Bickel, don’t we? Even so, we ought to want to know where canons come from.
Anyone aware of the well-established textualist turn in statutory and constitutional interpretation these days likely recognizes that textualisms and canons don’t always mix well. The controversy lies mainly with substantive canons. These are treated as somehow associated with the Constitution, not simply investigatory abbreviations or cues for the reader of the statute.
Well-put analyses are readily at hand. Professors Eidelson and Stephenson call attention to two writers in particular. John Manning wrote extensively on these questions, beginning around the turn of the century and running through fifteen prolific years, until he enlisted or was drafted into administrative service. His studies were and are clear, thoughtful, and well-elaborated: skeptical of quick conclusions, attentive to the virtues of close readings of both statutes and constitutional passages, and ready to work through possible tensions and reconciliations. Manning’s writing is very easy to applaud. Eidelson and Stephenson also focus heavily on a lengthy, well-done article published by then-Professor Amy Coney Barrett in 2010. Continue reading "One or Many More or Less"
Jul 8, 2024 Jodi ShortAdministrative Law
Catherine Baylin Duryea,
Emergency Oversight (May 20, 2024), available at
SSRN.
To ward off the dread that engulfs me when I contemplate the Court’s anti-administrative decisions and agenda, I love to read what amounts to regulatory fan fiction. Once, there was a time when administrative agencies roamed the earth, controlling the U.S. economy in minute detail. This was not just a rhetorical flourish or some feared dystopia lying down the treacherous slippery slope of judicial deference to agencies. It was life. What was that like? How did we survive it? Could it happen again?
Catherine Duryea’s article, Emergency Oversight, delivers these pleasures and more. Duryea analyzes the Emergency Court of Appeals (ECA), a specialized court that operated from 1942-1961 with exclusive jurisdiction to adjudicate challenges to price and rent regulations promulgated by the Office of Price Administration (OPA). OPA administered an extensive system of price and rent control regulations during WWII to thwart wartime inflation and ensure adequate wartime production. These regulations were promulgated under statutory authority delegating to the OPA’s Price Administrator the power to set maximum prices at a level that would “be generally fair and equitable,” giving “due consideration” to prices as they existed during a specified baseline time period. OPA regulations touched every aspect of American life during the war, “from what people ate for breakfast to what clothes they wore” (P. 13), to what rent they could charge for use of a refurbished outhouse. OPA had civil and criminal authority to enforce its price regulations. Continue reading "Through the Looking Glass: A Shared Vision for Economic Regulation"
Jul 5, 2024 Michael C. DuffWork Law
In Adding Insult To Injury: How Kansas’s $155,000 Cap On Permanent Total Disability Benefits Sets Up Injured Kansas Workers For A Lifetime of Hardship, author Gabrielle Stein effectively explodes the fiction that a workers’ compensation “grand bargain” continues to exist in Kansas. Workers injured in the workplace in the United States because of the conduct of their employers—whether negligent or innocent—are limited to state-based statutory benefit recoveries in lieu of tort damages.
The exchange of benefits for damages is often imagined to be a grand bargain in which workers give up full legal damages in exchange for extremely limited statutory workers’ compensation benefits consisting of indemnity wage benefits and payment for medical expenses. This insulates employers from tort liability and is supposed to also inure to the benefit of employees, whose tort claims might be difficult to establish and might otherwise be subject to an “unholy trinity” of affirmative negligence defenses abrogating a negligence claim: contributory negligence, assumption of the risk, and the fellow-servant rule.
Of course, the unholy trinity would be ineffective to bar negligence claims under current law in all but four American states—which have since the mid-twentieth century moved on from “absolute” defenses to a comparative negligence system—so the conceptual underpinnings of workers’ compensation have been seriously undermined (if not rendered irrational). But Ms. Stein additionally shows that any pretense that the workers’ compensation bargain is at least adequate is silly in Kansas given an indemnity cap of $155,000 for a permanent total disability claim. Continue reading "The Enduring Myth of the Adequacy of the Workers’ Compensation “Grand Bargain”"
Jul 4, 2024 Goldburn MaynardTrusts & Estates
Culture plays a major role in estate planning, whether we like it or not. Whereas the law of wills and trusts allows for vast testamentary freedom, millions of Americans, either because they want to avoid talking about death or because they do not have the resources to hire an estate planner, fail to avail themselves of these instruments. Some of the gaps have been filled by other nonprobate transfers like joint bank accounts and life insurance. A simple signature allows one to pass on assets at death using those forms of transfer. But outside of trusts, these nonprobate transfers do not cover all property and do not provide the flexibility of a will. The gap between what the testator wants and what society provides is particularly important if cultural norms prevent the individual from engaging in planning. In a recent article, Shui Sum Lau, a litigation attorney, considers how Asian cultural values can shape end-of-life and estate planning decisions.
According to Lau, Asian cultural values make Asian Americans the ethnic group most likely to support elderly relatives. For example, many Asian-Americans feel compelled to ensure the physical and mental wellbeing of their parents. Because elder care requires time and resources, we can assume that end-of-life planning would at least lower some of the decisionmaking burdens in these delicate circumstances. After all, deciding on life-saving care close to the end of a relative’s life can be extremely stressful for family members. Unfortunately, as Lau underscores, in many Asian cultures, discussions of death are taboo and often avoided, thus leaving children to make uncomfortable decisions on their incapacitated parents’ behalf because they refused to plan in advance. Continue reading "Cultural Lessons for Estate Planners"
Jul 3, 2024 Dorothy BrownTax Law
Professor Richard Winchester’s Essay, A Simple Tax Case Complicated by Race, is a very enlightening and quick read. His Essay details a Tax Court decision about whether a sale of land by a real estate developer is eligible for favorable tax treatment. And while most law students who have taken a single individual income tax class would rightly tell us the answer is no, Professor Winchester takes us through an opinion that finds otherwise—because of race! First, a primer for my non-tax-geek readers.
For most of our modern income tax history, the gain applicable to the sale of capital assets like stock or real estate held by investors, has been eligible for a low, preferential tax rate. Sales of inventory, or property “primarily for sale to customers” on the other hand are taxed at the highest ordinary income tax rates available. Real estate developers therefore are selling property they hold for sale to customers and generally ineligible for the lower, preferential tax rate. Except, Tax Court Judge Withey did not get the memo. Why? Professor Winchester argues that it is because of race. Continue reading "Capital Gains and Race: Through A Different Lens"
Jul 2, 2024 P. T. BabieProperty
In a previous JOT, I wrote that private property is deeply ingrained not only in our liberal world, but also in our DNA. In Innate Property: The Danger of Incongruency Between Law and the Biological and Behavioral Roots of Property and Possessiveness, Aaron Schwabach provides important evidence of the latter fact, arguing that one finds those biological-behavioral origins in the “innate urge to exclude.” (P. 190.)
While the right to exclude is always found in law, this must be distinguished from our “proprietary instinct: The[]…innate urge to say ‘this thing is mine, and no one can use it unless I let them.’” (P. 191.) Schwabach calls this, simply, “innate property.” (P. 190.) Continue reading "Innate Property—A Behavioral Trap"
Jul 1, 2024 Ezra RosserLexNative Peoples LawPoverty Law
Vanessa Ann Racehorse,
Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, __
Colum. Hum. Rts. L. Rev. __ (forthcoming), available at
SSRN (April 10, 2024).
The life expectancy of Native Americans is almost eleven years less than the average of all races in the United States. (P. 20.) And across countless other metrics—from drug addiction to diabetes—Natives suffer disproportionately high rates of illness and death compared to other Americans. (P. 20.) Despite this, funding for Indian Health Services (IHS) remains below the level of support given to non-Indians and well short of what is needed to provide adequate health care to tribal communities. (P. 19.) Professor Vanessa Ann Racehorse’s article, Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, does a fabulous job describing the linked problems of health disparities and insufficient funding for Native communities, while also offering suggestions on how health outcomes might be improved. But the article’s contributions extend beyond laying a foundation for better understanding tribal health care; Professor Racehorse also shows that when Indian nations assert their powers of self-determination in the health care space, outcomes for tribal members can improve.
Tribal Health Self-Determination is a reminder of the relatively high levels of reservation poverty and the ways that poverty, subordination, and health intersect. As Professor Racehorse highlights, Indian health is made worse by past injustices such as forced sterilization that contribute to historical trauma. (Pp. 11-12.) But health disparities are not inevitable. Under international law, tribal members have a right to the highest attainable standard of health. (Pp. 34-39.) Moreover, tribal takeover of IHS facilities can lead to better health outcomes through culturally competent care and local accountability. (Pp. 40-58.) Under-funding remains a challenge, but Professor Racehorse’s article provides a strong argument for supporting tribal assertions of authority over facilities that were previously run by the federal government. Continue reading "Improving Health Services for Tribal Communities"
