Copyright (c) 2010 NELLCO All rights reserved. http://lsr.nellco.org Recent documents in NELLCO Legal Scholarship Repository en-us Fri, 19 Mar 2010 05:02:46 PDT 3600 http://lsr.nellco.org/columbia_pllt/9185 http://lsr.nellco.org/columbia_pllt/9185 Thu, 18 Mar 2010 12:15:26 PDT Contemporary discrimination law is in crisis, both methodologically and conceptually. The judiciary's favored heuristic for observing discrimination - a comparator who is like the discrimination claimant but for the protected characteristic - has nearly depleted discrimination jurisprudence and theory. The resulting deficit can be explained, in turn, by the comparator methodology's profound mismatch with current understandings of identity discrimination and the realities of the modern workplace. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today's mobile, knowledge-based economy. This difficulty amplifies for complex claims, which rest on thicker understandings of discrimination developed in second-generation intersectionality, identity performance, and structural discrimination theories. By collapsing an observational heuristic into a defining element of discrimination, courts have largely foreclosed these theories from consideration, leaving the mismatch in place and sharpening the divide between theory and practice. At the same time, courts have further shrunk the very idea of discrimination by disregarding the lesson of harassment and stereotyping jurisprudence that discrimination can occur without a comparator present. The comparator methodology retains its appeal, despite these deficiencies, because its empirical patina enables courts to avoid making sociologically-oriented inquiries that stretch core judicial competencies. That is, the methodology permits courts to evaluate discrimination claims without appearing to engage in a subjective analysis of workplace dynamics. Given the complex nature of both identity and discrimination, however, these comparisons produce a false certainty at best. By contrast, alternate methodologies, including the contextual consideration favored in harassment and stereotyping jurisprudence as well as the hypothetical comparator embraced in European law, offer a meaningful framework for matching discrimination law and norms to workplace facts, while preserving judicial legitimacy. With comparators off of their methodological pedestal, we may yet recover space for the renewed development of discrimination jurisprudence and theory. Suzanne B. Goldberg http://lsr.nellco.org/upenn_wps/315 http://lsr.nellco.org/upenn_wps/315 Thu, 18 Mar 2010 07:58:48 PDT This Article argues that existing regulation of mutual funds has serious shortcomings. In particular, the Investment Company Act, which is based primarily on principles of corporate governance and fiduciary duties, fails to support and, in some cases impedes, market forces. Existing evidence suggests that retail investing behavior and the dominance of sales agents with competing financial incentives further weakens market discipline.As a solution, the Article proposes that funds should be treated primarily as financial products rather than corporations and, correspondingly, investors should be treated primarily as consumers rather than corporate shareholders. To implement this approach, the Article proposes the creation of a new federal agency that would develop standardized financial products coupled with corresponding disclosure principles. Sellers of retail products would be required either to conform their products to these standards or to explain material differences. The goal is to enhance market discipline while making retail funds less complicated and more understandable for individual investors. Jill Fisch http://lsr.nellco.org/upenn_wps/314 http://lsr.nellco.org/upenn_wps/314 Wed, 17 Mar 2010 06:53:22 PDT 'Common law intellectual property' refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law's substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls 'pragmatic incrementalism'. It involves the use of pragmatic and minimalist techniques that emphasize: (i) caution in the face of uncertainty; (ii) the use of value neutral legal standards; (iii) customary practices to tailor the regime to different contexts, and (iv) balancing the ex ante and ex post effects of adjudication. In working these ideas, courts develop rules that are flexible, context-dependent, and capable of affirming multiple values without looking for a single overarching theory. In the process, the regimes very effectively avoid the problems of uniformity, overbreadth, and ossification. The patent and copyright systems are today in a state of crisis, with scholars and policy-makers recognizing the need for a fundamental overhaul. Yet, few have turned to the common law method for solutions. Common law intellectual property, I argue, may provide us with a way forward, by drawing attention to the simple strengths of the common law method and its likely benefits for intellectual property law. Shyamkrishna Balganesh http://lsr.nellco.org/suffolk_fp/59 http://lsr.nellco.org/suffolk_fp/59 Fri, 12 Mar 2010 06:18:30 PST In the Caperton case (2009) the USSC applied the Due Process Clause to reverse the refusal of a West Virginia Supreme Court judge to recuse himself is spite of having received $3,000,000 in campaign contributions from a defendant. The judge then cast the deciding vote to reverse a jury award of $50,000,000 in damages for driving the plaintiff out of business. The article reviews the common law origins of conflict of interest law, and summarizes procedural due process. It describes procedures for examining judicial ethics including statutory sanctions, judicial conduct commissions and recusal. It reviews in detail the opinions of the WVSCA and critiques them. It gives an overview of judicial elections as well as the First Amendment principles involved in campaign regulation and financing. It endorses the ABA proposals passed in the August, 2009 in response to the case. Gerard J. Clark http://lsr.nellco.org/columbia_pllt/9184 http://lsr.nellco.org/columbia_pllt/9184 Thu, 11 Mar 2010 14:32:48 PST On May 25, 1983, the Supreme Court ruled 8-1 that the United States Internal Revenue Service (IRS) had authority to deny tax-exempt status to Bob Jones University, Goldsboro Christian School, and other private and religious schools with racially discriminatory educational policies. The Court relied on the statute's broad purpose and placed significant weight on Congress' failure to enact legislation to overturn the IRS policy. A complete account of the legislative history, provided here, both supports and undercuts the Court's opinion. More importantly, this story provides an account of the dynamic interaction among a Supreme Court critical of racial integration, a Congress divided on this issue, and a presidency at war with itself. In the end, the story suggests that Bob Jones may have a limited role in shaping interpretive methodology, but that the case reveals how all three branches of government (as well as the public) interact to shape a statute's meaning. Olati Johnson http://lsr.nellco.org/upenn_wps/313 http://lsr.nellco.org/upenn_wps/313 Thu, 11 Mar 2010 11:30:10 PST In this Essay, we analyze how evidentiary concerns dominate actors' behavior. Our findings offer an important refinement to the conventional wisdom in law and economics literature, which assumes that legal rules can always be fashioned to achieve socially optimal outcomes. We show that evidentiary motivations will often lead actors to engage in socially suboptimal behavior when doing so is likely to increase their likelihood of prevailing in court. Because adjudicators must base decisions on observable and verifiable information--or, in short, evidence--rational actors will always strive to generate evidence that can later be presented in court and increase their chances of winning the case regardless of the cost they impose on third parties and society at large. Accordingly, doctors and medical institutions will often refer patients to undertake unnecessary and even harmful examinations just to create a record that they went beyond the call of duty in treating them. Owners of land and intellectual property may let harmful activities continue much longer than necessary just to gather stronger evidence concerning the harm they suffer. And even the police will often choose to allow offenders to carry out crimes in order to improve the chance of a conviction. The effect we identify is pervasive. It can be found in virtually all areas of the law. Furthermore, there is no easy way to eliminate or correct it. It should be noted, however, that the evidentiary phenomenon we discuss also has a positive side effect: it reduces adjudication costs for judges and juries and improves the accuracy of court processes. In some cases, this improvement will exceed the social cost stemming from actors' suboptimal behavior. In other contexts, however, the social cost will far outweigh the benefit. Gideon Parchomovsky http://lsr.nellco.org/nyu_plltwp/183 http://lsr.nellco.org/nyu_plltwp/183 Thu, 11 Mar 2010 07:04:48 PST This lecture honors the centenary of the birth of Judge John R. Brown, one of the legendary "four horsemen" of the heroic period of the Fifth Circuit during the height of the civil rights era. The lecture explores the role of the judge in extraordinary times, defined as a crisis of confidence in the integrity of the core institutions of the society. Examples are drawn not only from the Fifth Circuit during the assault on segregation, but from the judicial responses to the electoral fiasco in Florida in 2000, and to the unresolved use of emergency powers following September 11.The last part of this lecture deals with a topic of current controversy. Here the discussion turns to a critical assessment of the decision to try Khalid Sheikh Mohammed in civilian courts. The lecture examines some of the doctrinal and practical hurdles facing an attempt to try a non-citizen military captive in civilian courts. Samuel Issacharoff http://lsr.nellco.org/nyu_lewp/209 http://lsr.nellco.org/nyu_lewp/209 Thu, 11 Mar 2010 06:47:21 PST Employment discrimination law has come a long way since it confronted the simple exclusion of minorities or women from desirable positions in the workforce. The expansion of protected groups and the dismantling of the more overt forms of exclusions has strained the antidiscrimination norm embodied by Title VI of the Civil Rights Act of 1964. As the law expanded the class of protected workers, its redistributive aims grew more pronounced. This chapter of a forthcoming handbook on the economic foundations of labor and employment law and provides an overview of this shift, focusing on the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, and the Americans with Disabilities Act. With each further expansion of the reach of employment discrimination laws, the relation between bias and what may be termed employers' economically rational discrimination became a more significant part of the case law. This chapter addresses some of the underlying labor economic issues as civil rights laws confront accommodation requirements and redistributive aims. The chapter will be published in The Law and Economics of Labor and Employment Law, edited by Cynthia Estlund and Michael L. Wachter and published by Edward Elgar. Samuel Issacharoff http://lsr.nellco.org/nyu_plltwp/182 http://lsr.nellco.org/nyu_plltwp/182 Fri, 05 Mar 2010 08:36:28 PST This study considers the circumstances under which members of the Muslim American community voluntarily cooperate with police efforts to combat terrorism. Cooperation is defined to include both a general receptivity toward helping the police in anti-terror work, and the specific willingness to alert police to terror related risks in a community. Two perspectives on why people cooperate with law enforcement, both developed with reference to general policing, are compared in the context of anti-terror policing and specifically among members of the Muslim American community. The first is instrumental. It suggests that people cooperate because they see tangible benefits that outweigh any costs. The second perspective is normative. It posits that people respond to their belief that police are a legitimate authority. On this view legitimacy is linked to the fairness and procedural justice of police procedures. Data from a study involving interviews with Muslim Americans in New York City between March and June 2009 strongly support the normative model by finding that the procedural justice of police activities is the primary factor shaping legitimacy and cooperation with the police. Tom Tyler http://lsr.nellco.org/nyu_plltwp/181 http://lsr.nellco.org/nyu_plltwp/181 Fri, 05 Mar 2010 07:46:34 PST According to its many critics, privacy self-regulation is a failure. It suffers from weak or incomplete realization of Fair Information Practice Principles, inadequate incentives to ensure wide scale industry participation, ineffective compliance and enforcement mechanisms, and an overall lack of transparency. Rather than attacking or defending self-regulation, this Article explores co-regulatory approaches in which government plays a role in setting requirements for industry guidelines and imposing sanctions for non-compliance. Based on three case studies of a weakly mandated industry code aimed at online behavioral advertising practices, a more strongly mandated program enabling data flows between Europe and the US, and a safe harbor program designed to protect children's privacy, this Article argues that statutory safe harbors have many strengths but would benefit from being redesigned. Next it conceptualizes new models for privacy co-regulation based on insights derived from "second generation" environmental policy instruments such as environmental covenants. Finally, it offers specific recommendations - to the FTC, on how it might begin to use the covenanting approach to experiment with innovative technologies and address hard problems such as online behavioral advertising, and to Congress on how best to structure new safe harbor programs as an essential component of omnibus consumer privacy legislation. All of these approaches to regulatory innovation move beyond purely voluntary codes in favor of co-regulatory solutions. Ira S. Rubinstein http://lsr.nellco.org/columbia_pllt/9183 http://lsr.nellco.org/columbia_pllt/9183 Thu, 04 Mar 2010 09:56:51 PST The inherent tensions in the financial sector mean that episodes of extreme stress are inevitable, if unpredictable. This is so even if the regulatory and supervisory regimes are in many respects effective. The capacity of government to intervene may determine whether the distress is confined to the financial sector or breaks out into the real economy. Although adequate resolution authority to address a failing financial firm is a necessary objective of the current regulatory reform, a firm-by-firm approach will be unable to address a major systemic failure such as the Crisis of 2007-08, which may require capital support of the financial sector to avoid severe economic harm. We therefore propose standby systemic emergency finding authority, triggered by agreement among Treasury, the Federal Reserve, and the FDIC. Such a fund, scaled appropriately to the size of the US economy, $1 trillion, should be funded (and partially pre-funded) by risk-adjusted assessments on all large financial firms, who benefit from systemic stability. Standby emergency authority avoids the need for high stakes legislative action mid-crisis, which can be destabilizing even if successful and catastrophic if not. The "triple key" constraint and on-going monitoring and oversight should address concerns of legitimacy and accountability. Jeffrey N. Gordon http://lsr.nellco.org/nyu_lewp/208 http://lsr.nellco.org/nyu_lewp/208 Wed, 03 Mar 2010 13:15:28 PST In international tax policy debate, it is usually assumed that, if one chooses not to exempt residents' foreign source income, the preferred system would offer foreign tax credits. This assumption is mistaken, given the bad incentives created by the credits' marginal reimbursement rate (MRR) of 100 percent and the unpersuasiveness of common rationales for granting them, such as those based on aversion to "double taxation" or support for capital export neutrality. While taxing foreign source income at the full domestic rate with only deductions for foreign taxes would over-tax outbound investment, at least in principle creditability is dominated by a burden-neutral shift to deductions plus a reduced tax rate for such income. And even if such a shift is unfeasible or unwise, the incentive problems resulting from a 100 percent MRR for foreign taxes paid may illuminate various more practical tax issues, such as (1) the merits of shifting to an exemption system, which features implicit deductibility, and (2) the merits of various proposed reforms, such as removing disincentives in subpart F for foreign tax planning by U.S. multinationals. Daniel Shaviro http://lsr.nellco.org/nyu_plltwp/180 http://lsr.nellco.org/nyu_plltwp/180 Wed, 03 Mar 2010 09:21:42 PST In international tax policy debate, it is usually assumed that, if one chooses not to exempt residents' foreign source income, the preferred system would offer foreign tax credits. This assumption is mistaken, given the bad incentives created by the credits' marginal reimbursement rate (MRR) of 100 percent and the unpersuasiveness of common rationales for granting them, such as those based on aversion to "double taxation" or support for capital export neutrality. While taxing foreign source income at the full domestic rate with only deductions for foreign taxes would over-tax outbound investment, at least in principle creditability is dominated by a burden-neutral shift to deductions plus a reduced tax rate for such income. And even if such a shift is unfeasible or unwise, the incentive problems resulting from a 100 percent MRR for foreign taxes paid may illuminate various more practical tax issues, such as (1) the merits of shifting to an exemption system, which features implicit deductibility, and (2) the merits of various proposed reforms, such as removing disincentives in subpart F for foreign tax planning by U.S. multinationals. Daniel Shaviro http://lsr.nellco.org/nyu_plltwp/179 http://lsr.nellco.org/nyu_plltwp/179 Wed, 03 Mar 2010 09:16:14 PST This exercise in comparative constitutionalism surveys how constitutional texts, constitutional doctrine, and constitutional traditions across different countries address the now well-recognized centrality of political parties to democracy. The essay is a book chapter in the forthcoming Research Handbook in Comparative Constitutional Law. Richard Pildes http://lsr.nellco.org/nyu_plltwp/178 http://lsr.nellco.org/nyu_plltwp/178 Wed, 03 Mar 2010 08:46:11 PST Criminal law enforcement in the United States is multi-jurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance is within the states themselves to see how they handle the issue of law enforcement allocation. States have the option of vesting authority in a state-level actor - typically, the Attorney General - or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority because states are weighing the same issues.This Article accordingly looks to the states for guidance on when criminal enforcement responsibility should rest with local authorities and when it should reside with a more centralized actor (be it one at the state- or federal-level). A comprehensive empirical survey of criminal law enforcement responsibility in the states - including a review of state codes and case law and interviews with state prosecutors - reveals remarkable similarity among the states about the degree of local control that is desirable. The states are virtually unanimous in their deference to local prosecutors, the small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation. This contrasts with the federal government's increasing interference with local crime.The Article explains the source of this difference: In the states, questions of procedure and sentencing are irrelevant to the allocation of power decision because they are the same at both levels of government. States thus serve as laboratories where sentencing differences and variation in procedural rules are taken out of the equation and the focus is on institutional competence. In contrast, the federal government typically decides to vest authority in federal prosecutors based on whether or not it agrees with local sentencing judgments. Because sentencing proves to be so central to federal involvement in crime, the Article concludes by urging those interested in federalism to pay greater attention to the role of sentencing as a driver of the federal government's decision to get involved with question of local crime. Rachel E. Barkow http://lsr.nellco.org/nyu_plltwp/177 http://lsr.nellco.org/nyu_plltwp/177 Tue, 02 Mar 2010 08:28:45 PST Almost 25 million people in the U.S. have limited proficiency in English (LEP), meaning that they can protect their rights, children, homes and safety in court only with the assistance of an interpreter. When competent interpreters are not available in civil cases, judges cannot accurately find facts, litigants cannot comply with court orders, the public loses faith in the justice system, and states cannot enforce their civil laws. The federal Civil Rights Act mandates access to interpreters for LEP individuals in all civil cases in courts receiving federal funds. Nonetheless, an in-depth examination of court interpreter services in the 35 states with the highest proportion of LEP individuals finds that in 46 percent of these states judges can deny interpreters in some or all civil cases, in 80 percent judges can charge LEP individuals for interpreters, and in 37 percent judges can use interpreters whose competence has never been assessed, even when credentialed interpreters are available. In an attempt to remedy the situation, this report lists courts' legal obligations, provides guidelines for the use of interpreters in state courts, and highlights best practices. Laura Abel http://lsr.nellco.org/nyu_plltwp/176 http://lsr.nellco.org/nyu_plltwp/176 Tue, 02 Mar 2010 08:28:44 PST The New York State Bar Association (NYSBA) and 11 other bar associations co-sponsored a 2006 American Bar Association (ABA) resolution that urged federal and state jurisdictions to establish a right to counsel in civil cases concerning basic human needs. This report compares the scope of the existing right to counsel in New York State to the five categories of basic human needs cases identified by the ABA: Cases concerning shelter, sustenance, safety, health or child custody. It also assesses the existing right to counsel in cases concerning members of special or vulnerable populations, and in cases involving deprivation of physical liberty. It also suggests areas for expansion of the right, particularly regarding cases concerning evictions, foreclosures, and unemployment insurance appeals. Laura Abel http://lsr.nellco.org/suffolk_fp/58 http://lsr.nellco.org/suffolk_fp/58 Mon, 01 Mar 2010 11:33:13 PST The Supreme Judicial Court of Massachusetts is afforded "extraordinary power" in reviewing first-degree murder convictions on appeal. Yet despite the plenary review established under section 33E--including the right to review the entire trial transcript for errors neither objected to at trial, nor raised on appeal--the survey undertaken in this article concludes that surprisingly few cases are reversed on appeal. This article presents the results of a survey of first-degree murder appeals in Massachusetts from 1998 - 2008. During that timeframe, just 7.17% of these convictions were reversed on appeal. Additionally, this article discusses the substantive issues giving rise to reversal, and the reversal rate for each issue. Criminal practitioners and scholars can benefit from a practical understanding of the aspects of homicide law which are most likely to support the reversal of a first-degree murder conviction. Stephanie Roberts Hartung http://lsr.nellco.org/nyu_plltwp/175 http://lsr.nellco.org/nyu_plltwp/175 Mon, 22 Feb 2010 10:16:59 PST Asia has long been underrepresented in institutions of global governance. Recent challenges to those institutions have focused less on their legitimacy than on their effectiveness.Such engagement reflects a changed approach to sovereignty. Once it was understood primarily as a defense against foreign intervention. The vast majority of Asian governments now understand that collective action does not erode, but instead protects sovereignty.Barriers remain to Asia playing a greater role on the world stage, however. In particular, there is little appetite for true leadership from Asia: Asians want to grow and perpetuate the global system, not revolutionize or reset it.In part this is due to interests, which are well-served by many aspects of the current system. But it is also connected to the Asian style of consensus and consultation.The "Asian way" of policy-making can be seen in recent developments in security and development, in regional cooperation, in the relative openness of Asian institutions, and the advantages of sub-regional groupings.The positive aspects of this approach to diplomacy and governance include respect for diversity, consensus-building over conflict, pragmatic approaches rather than lofty principles, and gradualism rather than abrupt change. The negative aspects can be that the desire to avoid confrontation prevents meaningful agreements being concluded in a reasonable timeframe, or that the appearance of consensus merely masks the true politics at work.What might this mean in practice? A speculative list of issues in which Asia - or, more properly, Asians - might contribute to global solutions includes peace and security, climate change, energy governance, energy security, financial regulation, health, development assistance, regional markets, good governance, and social enterprises. Kishore Mahbubani http://lsr.nellco.org/upenn_wps/312 http://lsr.nellco.org/upenn_wps/312 Fri, 19 Feb 2010 07:14:19 PST This short comment argues that both cost-benefit analysis (CBA) and cost-effectiveness analysis (CEA) should be seen as imperfect tools for evaluating health policy. This is true, not only for extra-welfarists, but even for welfarists, since both CBA and CEA can deviate from the use of social welfare functions (SWF). A simple model is provided to illustrate the divergence between CBA, CEA, and the SWF approach. With this insight in mind, the comment considers the appropriate role of contingent-valuation studies.For full text, please see: http://www.law.upenn.edu/cf/faculty/madler/workingpapers/578A59B6d01.pdf. Matthew D. Adler