Jul 14, 2011 Michael Livingstontax
Is tax law universal, or does it vary according to the legal and general culture of the country in question? What happens when tax norms developed in one context are moved or “transplanted” into another? Two scholars, one writing about a small country and one about a very big one, have endeavored to provide an answer.
The small country project is by Assaf Likhovski and concerns the income tax in pre-State Israel (or if one prefers, Israel and Palestine), specifically, the era of the British Mandate (1923-48). During this period the British—who still controlled a substantial portion of the world’s land and population—imported an essentially uniform, “one size fits all” income tax code to Palestine and other colonial territories. But of course, it didn’t work out that way: the peculiarities of the Middle East, which ranged from unique or at least different business forms to what might be called a diffident attitude toward paying taxes, rendered the system quite different in practice than it would have been in Britain, India, or another location. Particularly interesting was the imposition (or more properly, the attempt to impose) a uniform system on the country’s Jewish and Arab populations: the Jews feared that their Western-style economic arrangements would provide a juicier revenue target than the Arabs’ more traditional (and often noncash) transactions, so that the tax issue became yet another source of distrust between the two communities. There is an irony here, in that the Jewish community’s superior tax-raising capacity was ultimately to prove an advantage in the 1948 and later wars with neighboring Arabs; but that is another story.
Likhovski’s piece is valuable as description but also as theory, because it emphasizes the difference between formal and real-world law—what he calls “law in action”—in tax and other fields. When the latter is taken into account, superficially similar tax systems become more different and often diverge rather than converge in practical outcomes. This is a well-known phenomenon in comparative law, but apt to be forgotten in tax, and the reminder is both useful and significant.
The big country—really two big countries—study is by Jinyan Li and concerns the phenomenon of tax avoidance in China and Canada, each of whom enacted a General Anti-Avoidance Rule (GAAR) in the past generation (the United States now has a parallel provision, the so-called Economic Substance Doctrine, in section 7701(o) of the Internal Revenue Code). Once again the rules, although phrased in similar terms, have been applied in rather different ways, a divergence which Professor Li traces to substantial differences in law, legal institutions, and public and private attitudes toward tax avoidance in the two countries. Among the more significant differences are the role of the judiciary (central to Canadian tax administration but largely absent in China); the attitude toward tax planning and tax minimization (accepted within limits in Canada but considered a violation of the taxpayer’s patriotic duty in China); and the relatively recent nature of the Chinese income tax. The study is one of a number that Professor Li has conducted of the Chinese tax system and its divergences from typical Western norms: her unique status as a native Chinese speaker and a Western tax expert has given her access to a range of materials that would be unavailable—or at very least incomprehensible—to most legal scholars.
Professor Li’s and Likhovski’s papers are each important contributions; but the study of tax culture remains in its infancy. There remains to be done more descriptive work and—no less important—the development of a theoretical framework for comparative tax law and culture which lends coherence to the overall project (see Recent Developments in Comparative Tax Theory). By taking the initial steps, these works bring us closer to the goal.
Jul 11, 2011 Lisa Bressmanadlaw
Amnon Lehavi,
Judicial Review of Judicial Lawmaking, 96
Minn. L. Rev. (forthcoming 2011), available at
SSRN.
To what extent is a court just another lawmaker in our governmental structure? Professor Amnon Lehavi argues that the U.S Supreme Court has given a surprising answer in a surprising place: Stop the Beach Renourishment Inc. v. Florida Dept. of Envtl. Protection. The question in Stop the Beach was whether a decision of the Florida Supreme Court altering state property law deprived property owners of their rights in violation of the Fifth and Fourteenth Amendments. The U.S. Supreme Court held that it did not, but four justices expressly recognized that a judicial decision could constitute an unconstitutional taking. Lehavi contends that the case is significant beyond its ramifications for constitutional property law: four justices would treat state courts as lawmakers, indistinguishable from legislatures in this context. As Justice Scalia wrote: “It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat . . . the particular state actor is irrelevent.”
Lehavi considers the implications of this view. For example, Lehavi asks, if state courts are lawmakers, are they entitled to the same sort of judicial deference as legislators and agencies? Specifically, should the U.S. Supreme Court engage in deferential review of their determinations rather than more aggressive de no review? If so, should the same doctrines apply or apply in the same manner? Lehavi observes many of those doctrines are adapted for legislatures or agencies, such as the regulatory taking doctrine. Consider Penn-Central’s three-prong test, which asks a reviewing court to consider: (1) the economic impact of the regulation on the claimant;” (2) “the extent to which the regulation has interfered with distinct investment-backed expectations;” and (3) the character of the governmental action.” Lehavi notes that the third prong is awkward. In some cases, the Court has examined whether the invasion is part of a broader governmental program adjusting benefits and burdens among citizens. But courts do not maintain such programs. Perhaps, then, substantive due process supplies the proper analysis, asking whether the invasion is effective at achieving some legislative public purpose. Courts have been understandably deferential to legislatures and judges on the means-ends connection. But, Lehavi inquires, should they maintain the same posture for state courts?
In the end, Lehavi argues for a model that sees state courts as recipients of delegated authority. When legislatures and agencies enact broad legal standards or leave open certain terrain within a common law field, courts (through common law adjudication) specify the rules in this area. Returning to Stop the Beach and the question of when a judicial decision altering the common law constitutes an unconstitutional taking, Lehavi argues that the Court should view a suspect judicial decision as flowing from the underlying delegation of authority from the political branches and thus ascribe the motives and policies of the judicial decision to the delegation. As such, the judicial decision is not merely a “judicial wrong” but a governmental wrong, and the Court should assess that wrong in reference to the motives and policies of the original legislative and executive acts. The idea, Lehavi says, is not one of vicarious liability but of situating the judicial decision in its broader, realistic lawmaking context. In Lehavi’s words, “for purposes of identifying the underlying motives, goals, and background, socioeconomic facts, a federal reviewing court could rely on the way in which the institutional collaborative scheme has unfolded over time, while independently reviewing the federal law questions implicated by the development of the common law doctrine.” (P. 40).
Lehavi’s article is part of a broader discussion about the nature of the judicial power in the modern regulatory state. We have long held onto the fiction that courts, particularly Article III courts, do not make law. Chief Justice Roberts endorsed the fiction in his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules; they apply them.” Justice Scalia has been more self-conscious about the fiction, but he has nonetheless adhered to it: Judges “make” the law “as judges make it, which is to say as though they were ‘finding’ it–discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.” The fiction has been widely criticized by legal realists who acknowledge that judges do make law as well as by political scientists who have provided empirical support for the view of judges as lawmakers, and politically predictable ones at that.
Yet the old umpire uniform still hangs around. Judges may be political, but we are reluctant to treat courts as lawmakers, subject to the same legal doctrines that govern legislators or agencies. For example, courts implement broadly-worded statutes, such as the Sherman Act or Title VII, but we regard those statutes differently from the ones that agencies implement. As Professor Maggie Lemos has argued, those statutes have not traditionally been subject to the same sort of nondelegation limits as statutes that agencies implement. Nor do we generally view courts as recipients of delegated authority, asking why Congress might design statutes with a preference for courts over agencies as implementing institutions. Moreover, we do not evaluate different judicial practices with a realistic understanding of the judicial power. For example, should stare decisis apply to questions of statutory interpretation in judicially-administered statutes? Should the absurdity doctrine apply? We either take the answers for a given (stare decisis: of course), or we finesse the answers to avoid harsh results (absurdity doctrine: judges should not remake the law except when the law needs to be remade). That is not to deny differences between courts, on the one hand, and legislatures and agencies, on the other. It is to recognize the similarities.
Lehavi shows us that the Court itself may be beginning to acknowledge the similarities, albeit still maintaining a safe distance from the plate. State courts are not federal courts, and the Court has always been more willing to acknowledge that state courts possess the power to make the law by altering the common law. (P. 7). Still, Lehavi shows us, the Court has gone further than ever before. Judicial changes to the common law can have the same legal character as legislative or administrative changes to statutory or regulatory law. The implications are far reaching.
Jul 7, 2011 Sida Liulegalpro
Among scholars who study the legal profession, perhaps no one else has travelled as far as Yves Dezalay and Bryant G. Garth. They have studied international commercial arbitration across continents, they have investigated the political struggles between lawyers and economists in four Latin American states, and now their new book, Asian Legal Revivals, covers the history of lawyers and the state in almost ten different Asian countries. No matter if you like their findings or not, we must admire the effort required to bring together such a large variety of national and historical contexts to develop a general theory of lawyers in relation to the market and the state.
The theoretical contribution of this book to the scholarship on lawyers and politics is significant. In the vast academic literature on the legal profession, the relationship between lawyers and the state has been, oddly, inadequately theorized despite many good efforts in this direction in the 1980-1990s. By this book and their previous study on Latin America, The Internationalization of Palace Wars, Dezalay and Garth have outlined a relatively coherent theory of lawyers and the state. Following Pierre Bourdieu, particularly his flexible and inclusive concept of capital, the authors argue that lawyers do not necessarily seek market monopoly or take political action based on their professional ideology, but form various types of relations with the state based on their social and legal capital–they could serve as clerks, mediators, or spokespersons in different political contexts.
For post-colonial Asian states, the accumulation, attrition, and revival of legal capital appear to have a cyclical pattern: Phase I: investment of legal capital and its combination with local social capital; Phase II: use and demise of accumulated capital for market and political gains; and Phase III: a capital rebuilding process similar to the first phase. By the introduction of the concept of capital and the emphasis on the reproduction of the legal elite, Dezalay and Garth successfully problematize the theoretical opposition between lawyers’ market and political activities in existing scholarship.
However, this Bourdieuian approach to the legal profession also has its weaknesses. First, it focuses too much on the elite of the bar and pays almost no attention to the vast number of grassroots law practitioners. In none of the countries that the book covers do we see a good analysis of the production and diffusion of legal expertise in the broader legal community beyond the limited scopes of corporate law and public interest law, both of which are heavily influenced by foreign economic and political investments.
Second, Dezalay and Garth’s application of Bourdieu’s theory is a partial one because it bypasses two other central concepts in the theory, namely, field and habitus. By juxtaposing lawyers between the market and the state, or what Bourdieu would call the economic and political fields, the authors leave little autonomy for the legal system, or what Bourdieu would call the juridical field. The vastly different habitus of legal elites in different countries is reduced to various types of capital, without taking into account the structured and structuring effects of habitus to the field of law. As a result, the boundaries of the juridical field look extremely ambiguous. In other words, the authors give too much autonomy to individual agents of law but not enough attention to the structure of the economic, political, and juridical fields.
Those two weaknesses aside, the book does provide a unique theoretical lens for observing the comparative historical development of the legal profession in Asia. My last comment on this excellent book is methodological. When reading the book, I kept wondering what experts on the legal profession in each of the Asian countries would think of the analysis. To make an analogy, the authors resemble two art connoisseurs who travel around the vast territory of Asia to collect the best art works in each country, and then put them together in an Asian art collection. The collection is indeed spectacular and it enables an eye-opening cross-national comparison, but from this collection it is impossible to situate the art works in their respective cultural contexts or to gain a good sense of the whole field of art in each country. This is perhaps the inevitable methodological problem of comparative research, but my hope is that this thought-provoking book will inspire more “archeologists” of the legal profession across the world to conduct in-depth analysis on lawyers, market, and the state to support or challenge the theoretical thesis that Dezalay and Garth have rigorously outlined. After all, without archeologists, art collectors would have no art to collect.
Jul 4, 2011 Laura Edwardslegalhist
Barbara Welke’s Law and Borders of Belonging in the Long Nineteenth Century United States provides an elegant synthesis of the existing literature on rights and citizenship while also delivering a challenging and original argument of its own. Welke manages this difficult feat by incorporating a wide range of scholarship, beyond the field of legal history, into her analysis. She then uses that historiographical base to recast the progressive narrative of legal change, which posits a steady extension of rights to previously excluded groups and a consequent expansion in the meaning and reach of citizenship. Instead, she argues that there was firm commitment to conceptions of rights and citizenship that privileged the status of white men at the expense of other, marginalized people. The book is part of the series, The Cambridge History of Law in America, edited by Christopher Tomlins and Michael Grossberg. One of the series’ goals is to provide an accessible introduction to the material, with an eye toward classroom use. Law and the Borders of Belonging will be a useful teaching tool because its narrative is so gracefully constructed. But it would be a shame to leave this book to students because it also makes such an important contribution to nineteenth-century legal history.
Law and the Borders of Belonging uncouples rights from citizenship. In so doing, Welke draws on recent scholarship in legal history. But her analysis moves in different directions because of her background in feminist theory, women’s history, and the literature on race, ethnicity, and disability. By separating rights and citizenship, Welke is distinguishing between the positive claims that individuals can make on the state through the legal system and the various demands that the state can make on individuals. Women in the nineteenth century, for instance, did not have the full array of individual rights even though they were citizens. For them and for other Americans who were not white and male, as Welke argues, citizenship implied only responsibilities, restrictions, and regulations. The acquisition of rights resulted not in citizenship, but in legal personhood. Citizenship, however, still gave meaning to legal personhood, because rights, alone, did not always guarantee the state’s protection or support.
Uncoupling rights and citizenship allows Welke to explore the nuances of individuals’ positive and negative connections to the state. Her approach also allows her to explore the relationship between the positive and negative elements of individuals’ relationships to the state—the dynamic to which the term “borders of belonging” refers. Borders of belonging is a purposefully ambiguous concept, rendering unstable what the scholarship now tends to treats as definitive. As Welke shows, neither legal personhood nor citizenship determined the borders of belonging. It was a mix of the two that determined the borders. But even possession of both did not always guarantee belonging.
This analytical framework then leads Welke to a very different view of the trajectory of rights and citizenship in the nineteenth century. Instead of focusing on the attainment of rights as the standard by which to measure individuals’ legal statuses and their positions within the nation, Welke focuses on various groups’ actual ability to use the law and to call on the state to defend their interests. The first chapter, “Constructing a Universal Legal Person: Able White Manhood,” deals with those individuals who could use the law and could claim the status of legal personhood. Their status as such determined the meaning of citizenship for them, placing them within the borders of belonging and giving them access to state authority that others did not have. The second chapter, “Subjects of Law: Disabled Persons, Racialized Others, and Women,” focuses on those people were not able to use the law. As Welke argues, these people were not only subjects in law, but also subject to those individuals with the status of legal personhood. They did not fit within the border of belonging in the same way as white men, even though they were subjects of the law. The third and final chapter then explores the resulting conflicts, as those who were legally disabled sought to obtain the benefits of belonging purported to be universal, but were not. Welke argues that the entire century was marked by continuities that remade existing inequalities so as to exclude and subordinate on the basis of gender, race, ethnicity, and ability. Those inequalities were built into the new republic’s legal system at its birth, and they continued to structure legal statuses and people’s relationships to the state throughout the entire nineteenth century. Even the Civil War, emancipation, and the Reconstruction amendments did not alter the basic structure.
As Welke’s analysis suggests, the progressive narratives of rights and citizenship are problematic because they are based on the impossible. Legal personhood and citizenship, as they were defined in the nineteenth century, are predicated on subordination and exclusion. As such, they cannot be extended easily, if at all, to those groups of people who were subordinated and excluded. By implication, Welke also raises fundamental questions about the construction of the nation more generally. These larger points build on the analyses of feminist scholars and critical race theorists, who have revealed the gender and racial subtext of the supposedly universal liberal subject. It is Welke’s command of the evidence that makes her analysis so compelling. Her larger claims emerge from her explication of the material so that readers see familiar dynamics in very different terms. Law and the Borders of Belonging is quietly transformative. Students will think that her take on the nineteenth century is conventional because it is so well done. Their professors will know otherwise.
Jun 30, 2011 Michael Greenjuris
Although this article appears to be about the permissibility of aggressive anticrime measures, it really concerns particularism in ethical theory.
Three strikes laws, zero tolerance policies, and the like have been criticized for violating nonconsequentialist restrictions on punishment. According to this criticism, when the state sentences a former felon to 25 years in prison for stealing three golf clubs, see Ewing v. California, it acts improperly because it imposes a sentence more severe than the defendant deserves for the crimes he has committed. That such a restriction on punishment exists, it is claimed, can be shown by considering telishment (short for “teleological punishment”), in which the government intentionally punishes someone it knows to be innocent because crime will thereby be prevented. Although telishment would, ex hypothesi, have good consequences, it is nevertheless wrong. And so–-proceeding according to what Brand-Ballard calls a generalization argument–-punishment under three strikes laws must also be wrong, for it shares all morally relevant intrinsic features with telishment. Both, after all, impose a quantum of undeserved harm.
Brand-Ballard challenges not merely this criticism of three strikes laws, but also all generalization arguments, in which a policy is held impermissible because it shares all its morally relevant intrinsic features with another policy that is clearly impermissible. He asks us to consider an act of punishment that is clearly permissible–say, a 5-year prison sentence for bank robbery. Since this sentence inevitably imposes harm upon the punished’s spouse (the “collateral damage” of the article’s title), he argues it also shares all morally relevant intrinsic features with telishment. The spouse, like the telished, does not deserve harm, although imposing it might have good consequences.
Of course, Brand-Ballard’s argument can work only if the harm to spouses that arises from imprisonment shares all morally relevant intrinsic features with telishment. The most important challenge he must face is that the doctrine of double effect is a morally relevant intrinsic difference between the two. The state, one might argue, does not intend to harm the spouse, but merely foresees the harm as a side-effect of the imprisonment. In contrast, the telishing state intends the harm suffered by the scapegoat. Although Brand-Ballard does not deal with this objection with quite the care one might wish, I think he is right that the doctrine of double effect cannot be used to distinguish the two.
His best argument is that the coercive separation of the spouse from the prisoner is often an intended quality of the punishment. The state wants the prisoner to be denied the companionship of the spouse. To be sure, one might argue that it does not really want the spouse to be denied the companionship of the prisoner. If it could separate the prisoner from the spouse without separating the spouse from the prisoner, it would. But here I think Brand-Ballard could respond that we might just as well say that the telishing state doesn’t really want the harm to the scapegoat–if it could bring about the crime reduction without the harm, it would.
Given that telishment, three strikes laws, and imprisonment without unlimited conjugal visits share all morally relevant intrinsic features, what does Brand-Ballard think follows? Not that prisons must allow unlimited conjugal visits, and not that telishment should be permitted. He does not even take a stand on the permissibility of three strikes laws. His point is that our moral assessment of all of these policies cannot be made without a consideration of their extrinsic features.
Notice that this is not necessarily consequentialism. He leaves open the possibility that considerations other than consequences matter. Rather, he borrows a theme from the particularists: the way that intrinsic considerations matter is never invariant across extrinsic contexts.
The common view is that telishment is wrong because it violates nonconsequentialist restrictions protecting the scapegoat. Likewise, imprisonment without unlimited conjugal visits is fine, because the prisoner’s spouse has no comparable nonconsequentialist protection of her interests. Brand-Ballard argues that this is too hard on telishment and too easy on prisons’ refusal to allow unlimited conjugal visits. Both share the pro tanto wrongmaking feature of imposing undeserved harm. Therefore, what makes telishment all-things-considered impermissible and imprisonment without unlimited conjugal visits all-things-considered permissible are extrinsic features.
He offers only brief suggestions about what these extrinsic features might be. In the case of telishment, he suggests that, in any normal society, allowing officials to telish would open up an avenue for abuse–they would have a convenient argument for punishing those with whom they disagree. Concerning unlimited conjugal visits, he points to the cost such a policy would impose upon prisons. He admits that these reasons may not reflect the phenomenology of our moral reactions to these policies. But, he argues, to the extent that we think nonconsequentalist considerations are solely driving these reactions, we are misdescribing the sources of our own moral intuitions.
What then about three strikes laws? He argues that the common criticism of such laws–that they violate retributive restrictions on punishment–will not work. Any argument against them is going to have to be contextual and empirical, in particular that they inflict more undeserved harm than they prevent.
The most significant aspect of this highly original article, however, is less its assessment of three strikes laws than its exemplification of the modern trend toward moral particularism. Notice, however, that Brand-Ballard’s particularist sympathies are limited. The way that intrinsic features morally matter, he argues, is never invariant across extrinsic contexts. That leaves open the anti-particularist possibility that there are extrinsic features, or nontrivial sets of intrinsic and extrinsic features, with moral effects that are invariant across contexts. From these features, moral principles might be derived.
Jun 27, 2011 Marcia L. McCormickworklaw
Tristin Green,
The Future of Systemic Disparate Treatment Law, 32
Berkeley J. of Employment & Labor Law __ (forthcoming 2011), available on
SSRN.
On June 20, 2011, the Supreme Court issued a decision in what has been billed as the largest employment discrimination case in U.S. history: Wal-Mart v. Dukes. The case was a class action against Wal-Mart, the country’s largest private employer, for pay and promotion decisions that discriminated on the basis of sex, and the class consists of every woman who currently works for the company or who formerly did, going back to 1998. Estimates of the number of class members range from about 500,000 to 1.6 million. The numbers are what tended to make headlines, were to some extent the focus of Wal-Mart’s defense, and played a large role in the Court’s decision. But those numbers were driven in large part by the sheer size of the company. Some have suggested that Wal-Mart is arguing that it is “too big to sue,” the newest variation of “too big to fail.” To the extent that Wal-Mart’s size contributed to the Court’s conclusion that the causes of any injuries were too complex for those allegedly injured to constitute a class, the Court agreed.
What was at stake in the case was more than just the interests of the women or the interests of Wal-Mart. At stake was the future of class actions to redress harm from mass injuries and the future of systemic discrimination cases. That is why Tristin Green’s article, The Future of Systemic Disparate Treatment Law, 32 Berkeley Journal of Employment & Labor Law __ (forthcoming 2011), currently available on SSRN, is such a welcome addition to the discussion of the theory of systemic discrimination. Tristin, Noah Zatz, Richard Ford, Melissa Hart, and Michael Selmi will all contribute articles to a symposium issue on the subject, but Tristin’s was the first article to be made publicly available.
Tristin’s article focuses on the fundamental underpinnings of individual disparate treatment theory and the unintended consequences of importation of that theory into systemic cases. She describes quite perceptively how focusing on individual decisionmakers distorts analysis of entity liability for discrimination. And it was this trap that the majority fell into.
Tristin begins her analysis of systemic disparate treatment with a discussion of the Supreme Court cases that fleshed out the theory, and the view of systemic disparate treatment liability proposed by one of the dissenters to the Ninth Circuit’s en banc decision to affirm the class certification. Judge Ikuta would have held that in order to demonstrate a systemic disparate treatment claim, plaintiffs would have to show a company-wide policy of discrimination, in other words, that the managers at the top imposed their policy with the intent that the policy injure women. The Supreme Court essentially agreed that plaintiffs needed to show a company-wide policy of discrimination for this class to be certified.
It is this view of entity liability as fundamentally vicarious that poses the greatest threat to systemic disparate treatment theory. If the policy view of entity liability is required for systemic disparate treatment, then systemic disparate treatment will, in operation, be limited to express official policies, regardless of how widespread the disparities are or how strong the correlation between protected status and injury. This view of entity liability also focuses too much attention on individual decisionmakers, ignoring the role of the systems in place in causing or perpetuating disparities of treatment for members of a protected class.
Tristin proposes using a context model of organizational wrongdoing as the theoretical underpinning for systemic disparate treatment. In her words,
A context model of organizational wrongdoing helps make clear why entity liability for systemic disparate treatment is direct rather than vicarious. The employer is being held responsible for something that it has done. The employer‘s responsibility under this model turns not on identification of a single instance or even multiple instances of disparate treatment; rather, its responsibility turns on its own role in producing disparate treatment.
Changing the focus this way holds entities responsible when disparate treatment is the regular practice within the organization. When disparate treatment is the regular practice, it is unlikely that the disparities are being caused by a few “rogue” individuals acting on biases uninfluenced by the norms of the organization. It is the entity itself that is exercising disparate treatment, and it is not only vicariously liable. When disparate treatment exists, but is unusual rather than regular, individual disparate treatment is the appropriate approach, and the employer may be vicariously liable for the acts of its agents. Tristin goes further to operationalize the way that this theoretical underpinning would play out in a systemic disparate treatment case.
The analysis is thorough and the arguments provocative. Certainly, those who view liability of entities as principle-agent problems will resist the notion that entities can ever be responsible other than vicariously except in limited circumstances. The view that an organization is in anyway independent of the people who run it, that it can act without the fully self-aware, conscious volition of actors, that protected status rather than individual motive can cause discrimination, is not something that large groups of lawyers, judges, or legal scholars wholeheartedly accept. And that was clearly the view of the majority in Wal-Mart. Despite that limitation, Tristin’s contribution illuminates much about the principles that underlie systemic disparate treatment and the challenges to full implementation of Title VII that remain.
Jun 23, 2011 James E. Pfanderclassic
Herbert Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Probs. 216 (1948).
Perhaps Herbert Wechsler needs no introduction, no expression of appreciation. He did, after all, leave an indelible mark on three bodies of law: criminal law, constitutional law, and the law of federal jurisdiction. He served as the third director of the American Law Institute, shepherding an important collection of Restatements through the process of drafting and approval. Also in his director’s role, he played a central role in the ALI Study of the Division of Jurisdiction Between State and Federal Courts (1969), which occupies a place on my federal courts bookshelf alongside the 1953 casebook Wechsler wrote with Henry Hart.
But despite his many contributions to legal scholarship, Wechsler’s reputation these days might appear to depend on two articles: 1959’s Toward Neutral Principles of Constitutional Law and 1953’s The Political Safeguards of Federalism. The first has suffered from its criticism of the Supreme Court’s decision in Brown v. Board of Education, which comes as close as one can these days to academic apostasy. The second contributed an enduring idea to the canon of constitutional law, but one that may have fallen temporarily from grace with the rise of the judicially enforced federalism of the Rehnquist Court.
I want to focus instead on Wechsler’s 1948 article, Federal Jurisdiction and the Revision of the Judicial Code. I find myself returning to the article for a number of reasons. To begin with, the choices of the 1948 revisers and codifiers remain very much a part of our jurisdictional law over sixty years on, as do Wechsler’s criticisms of those choices. In addition, the article has the remarkable Wechslerian ability to identify doctrinal and statutory rough patches and foresee new departures in jurisdictional law. Indeed, a surprising number of Wechsler’s suggestions have been written into the law of federal jurisdiction, either by Congress or the Supreme Court, thus underscoring the power of scholarship as a tool of effective law reform. Wechsler managed to accomplish all this in thirty pages, deploying a gift for concision we should all envy.
Finally, the article offers a glimpse backward to the middle years of the twentieth century, when Congress was placing the government on a more responsible footing in relation to the citizens hurt by the conduct of government business. Congress had just adopted the Administrative Procedure Act and the Federal Tort Claims Act, both aimed at facilitating litigation to remedy illegal federal government action. Rather than something that courts and commentators cherished or sought to defend, sovereign immunity was rightly regarded as a relic of a less enlightened age.
Wechsler began with a simple statement of principle: in general, federal courts should focus on the litigation of federal questions and should steer clear of matters of state law. In this approach, Wechsler was part of a broad group of scholars and jurists (including Felix Frankfurter and Henry Friendly) who thought of the business of the federal courts from a post-Erie perspective that cast doubt on the wisdom of expending federal judicial resources to resolve state law matters in diversity. Not only did the cases burden the federal courts, but they presented in its most “aggravated form” the worrisome possibility that federal courts would misapply state law. Curiously, recent legislation (including the Class Action Fairness Act and the Multi-Party Multi-Forum Trial Jurisdiction Act) seems to have lost touch with that simple principle, expanding the scope of minimal diversity jurisdiction without attending to the accompanying problems of choice of law.
In proposing to simplify jurisdiction over claims against the federal government, Wechsler began with the view that sovereign immunity should be limited in favor of a principle of government accountability. A similar principle emerged in a 1976 amendment to the APA, although immunity remains a stumbling block far too often. Second, he advocated the elimination of any amount-in-controversy requirement, not only for claims against the government but for all claims based upon federal law. Eventually, Congress came to agree, although not for thirty years. Third, he offered a series of useful suggestions to address venue issues in mandamus proceedings, something Congress fixed in 1962. Fourth, he called for recognition of a general principle that challenges to the legality of federal official action belong in federal court, not only to be implemented through the government’s right to remove (which first appeared in the 1948 codification) but also as a plaintiff’s right to lodge the case in federal court in the first instance. In thus anticipating the Bivens action, albeit on a much wider scale than it occupies today, Wechsler suggested that federal common law should provide the measure of official liability. Finally, Wechsler criticized the derivative jurisdiction removal doctrine, which holds that removal jurisdiction attaches only where the state court could have asserted jurisdiction had the action remained there. Congress eliminated this rule from general removal law, although the federal government continues to invoke it, unfortunately with some success, for its own special benefit.
Other comments in the article, large and small, anticipate and challenge jurisdictional developments. For example, Wechsler dealt quite pithily with the problems of federal-state relations presented by the Ex parte Young doctrine. He noted the rise of equitable abstention doctrines, and called for a more general approach: federal courts should stay their hands when states offer a plain, speedy, and adequate remedy. Wechsler recognized that by casting the burden on the states to demonstrate the existence of an adequate remedy, federal law would go far to ensure its ready availability. Yet he would have created an exception for actions brought under the civil rights statutes, thus recognizing that state-federal tension in the coming years was likely to center on such equality claims, rather than the substantive due process claims brought to federal court in Ex parte Young itself. Apart from abstention, Wechsler sketched a clever solution to the problem of supplemental jurisdiction, suggesting presciently that jurisdiction should attach to transactionally-related pendent state claims subject to discretion in the district court to send state law matters back to state court. He even called for the tolling of the limitations period while the later-dismissed state claims were pending in federal court.
As for the problem of choice of law, Wechsler endorsed the Erie doctrine but called for wide recognition of the power of federal courts to fill gaps and enforce federal rights through the development of federal common law. Wechsler would have dealt with the problem by amending the Rules of Decision Act to provide that, for the enforcement of all federal rights and duties, “the federal courts are authorized to grant all remedies afforded by the principles of law, unless an Act of Congress otherwise requires or provides.” Under such a statute, the power of the federal courts to give effect to federal rights, either through rights of actions or remedies, would have been clearly acknowledged, and much of today’s sturm and drang over implied rights of action might have been avoided. Wechsler also anticipated Friendly’s famous paper, In Praise of Erie—And of the New Federal Common Law and the future course of decisional law by arguing that all such federal judge-made law should be regarded as binding in state court.
Wechsler may have overreached on one question. Offering a broad view of Congress’s power to expand the jurisdiction of the federal courts, Wechsler argued that a grant of jurisdiction within a field of congressional competence might operate as a legitimate form of federal regulation, even where state law was to apply. While the Court has been unwilling to embrace this conception of protective jurisdiction, its approach to federal ingredient jurisdiction allows Congress to achieve similar goals with relatively modest federal substantive law provisions (as it has done under the Federal Tort Claims Act and the Foreign Sovereign Immunities Act). Protective jurisdiction of Wechslerian breadth thus remains but a glimmer in the scholar’s eye.
Although 63 years have passed, Wechsler’s article still rings true and continues to offer a reform program of surprising relevance today. Let’s think for a moment about what Wechsler brought to this lasting piece of scholarship: a sure-handed command of existing law; an understanding of how the legislative and judicial processes work; an imaginative conception of the potential range of doctrinal growth; and a keen eye for the changes that would require legislative involvement. Apart from these gifts, Wechsler believed in the importance of law reform as a positive program for change led by legal scholars. In a world increasingly devoted to the work of scholars who care little for the content of law, Wechsler’s commitment to a scholarship of law reform may, ironically, be the feature of the article least likely to survive.
Jun 22, 2011 Howard M. Wassermancourtslaw
This month in JOTWELL’s Classics Section, CourtsLaw contributing editor Jim Pfander reviews Herbert Wechsler’s 1948 piece , Federal Jurisdiction and the Revision of the Judicial Code. Wechsler recommended a host of changes to the law of federal jurisdiction, many of which subsequently became law. The piece thus demonstrates the positive role that legal scholarship can play in reforming the law.
Jun 20, 2011 Ilya Sominconlaw
Robert Cooter and Neil Siegel’s Collective Action Federalism is probably the most important academic article on constitutional federalism in several years. Cooter is one of the world’s leading law and economics scholars. Unfortunately, his work has not gotten the attention it deserves from constitutional theorists. Siegel is a leading constitutional law scholar in his own right.
In Collective Action Federalism, Cooter and Siegel argue that the congressional powers enumerated in Article I, Section 8 of the Constitution should be interpreted in light of the goal of giving Congress the authority it needs to address collective action problems among the states. A collective action problem arises when members of a group want a good, but have little or no incentive to contribute to its production, because they can instead try to free ride on the efforts of others. This is likely to occur in cases where the good in question is a “public good” for the group in question, one for which there is no way to prevent group members from consuming it even if they have not contributed to its provision.
Cooter and Siegel point out that the framers of the Constitution justified many of the powers enumerated in Article I as solutions to collective action problems among the states (though of course they did not use that terminology). For example, the power to raise and support armies was intended to provide the public good of national defense, which states often failed to contribute to under the Articles of Confederation. Similarly, the power to regulate interstate commerce was intended to be used to prevent states from adopting protectionist trade barriers against each other or impeding the movement of goods across their borders. Interstate free trade is a public good.
The authors argue that Article I, Section 8 should be treated as a “unified whole” rather than as a discrete set of unconnected individual powers. And they propose collective action theory as a unifying framework for interpreting that whole. Where there is an interstate collective action problem, they would give Congress the power to address it. Where no such problem exists, state power should be allowed to prevail.
Cooter and Siegel’s approach would lead to broad interpretations of congressional power in some areas, and relatively narrow ones in others. Currently, the Supreme Court interprets the power to regulate interstate Commerce in a way that gives Congress nearly unlimited power to regulate “economic activity,” while restricting its authority over “noneconomic” matters. Cooter and Siegel correctly point out that some forms of economic activity do not raise any interstate collective action problems, while some types of noneconomic activity do. With respect to the General Welfare Clause, their theory would uphold taxes and regulations that address collective action problems, while rejecting those that do not. In effect, they interpret the phrase “general welfare” as a synonym for “solving interstate collective action problems.”
The greatest strength of Cooter and Siegel’s analysis is that it accounts for the interconnections between the various congressional powers and expresses their underlying unity. As they point out, this has advantages under both originalist and nonoriginalist theories of interpretation. From an originalist standpoint, collective action federalism dovetails with statements by the many Founders who argued that powers granted in Article I were intended to curb free-riding by state governments of the sort that had become a serious problem under the Articles of Confederation. For nonoriginalists, the theory has the virtue of taking account of modern economic analyses of federalism, most of which stress the key role of collective action problems.
Despite its impressive strengths, Cooter and Siegel’s analysis also has a few problems. It is far from clear that Article I really gives Congress unfettered authority to solve any and all collective action problems among the states. If that were the case, why would the Founders have bothered to carefully enumerate seventeen separate powers plus the Necessary and Proper Clause, instead of a single catch-all “Collective Action Clause?” To their credit, Cooter and Siegel foresaw this issue and tried to address it by arguing that the enumerated powers are not meant to be an exhaustive list, but an illustrative one. Yet it seems unlikely that a merely illustrative list would be so long and precisely detailed. Moreover, treating the list as illustrative renders the Necessary and Proper Clause superfluous. Under that approach, Congress would already have had the power to enact any measures “necessary” to solve any collective action problem, even if they were not specifically listed.
Second, Cooter and Siegel’s framework might actually negate certain specifically enumerated powers if it turns out that they are not needed to solve any collective action problems. Consider Congress’ power to “establish post offices.” It is now clear that private firms such as Federal Express can deliver the mail just as effectively as the federal government, if not more so. And they can easily exclude would-be free riders who try to get away with not paying for postage. Does that render the US Postal Service unconstitutional?
Most importantly, Cooter and Siegel do not consider the possibility that the Constitution should be interpreted to curtail federal government policies that create “public bads,” as well as facilitate those that provide public goods. Just as Congress can solve collective action problems, it can also create them. To take one common case, it can enact special interest legislation that benefits small, well-organized groups at the expense of the general public. The repeal of such laws then becomes a nationwide collective action problem, one that the public often fails to solve because individual citizens and states have strong incentives to free ride on such matters. Curtailing such interest group legislation is one possible rationale for interpreting Congress’ enumerated powers relatively narrowly. Obviously, state governments often enact harmful special interest legislation of their own. But only Congress can impose such a law on the entire nation at one fell swoop.
The famous 1942 case of Wickard v. Filburn illustrates this dilemma well. Wickard ruled that the interstate Commerce Clause authorized Congressional legislation that restricted wheat production even in cases where the wheat in question had never crossed state lines or been sold in any market. Cooter and Siegel endorse Wickard because the law in question solved a collective action problem among the states. Many state governments wanted to raise the price of wheat in order to assist farm interests. But none could do so individually, because of the risk that their efforts would be undercut by competition from other states.
At the same time, however, the law upheld in Wickard also created a severe collective action problem. By artificially raising the price of food in the midst of the Great Depression, it increased the suffering of consumers, particularly the poor – many of whom already found it difficult to purchase adequate amounts of food. Because consumers faced severe collective action costs and in many cases did not even realize that the new law had harmed them (voter knowledge of the effects of federal policy is itself a nationwide public good), they were not able to mobilize against it effectively. Wheat production restrictions that were a public good for farm states turned out to be a public bad for consumers and also for nonagricultural states whose economies were damaged by the price increases.
Cooter and Siegel rightly argue that “[a] federal constitution ideally gives the central and state governments the power to do what each does best.” But a federal constitution must also protect against the dangers posed by both state and federal power. A powerful central government is often “best” at solving national collective action problems. But it is also often the “best” at creating them. State governments acting on their own could never have established a nationwide wheat cartel that victimized poor consumers for the benefit of politically powerful farm interests. A more comprehensive collective action approach to constitutional federalism must consider both sides of this dilemma.
Despite these reservations, Cooter and Siegel’s work is a major contribution to the debate over federalism, and helps set the agenda for future scholarship. It is hardly fair to ask any one article to do more. Future writers will need to more fully consider the extent to which collective action theory sheds light on the appropriate scope of specific federal powers. They should also take due account of the danger posed by federally mandated “public bads.”
Jun 16, 2011 Joanna Grossmantrustest
Thomas P. Gallanis,
The Flexible Family in Three Dimensions, 28
Law & Ineq. 291 (2010), available on
SSRN.
No small amount of ink has been spilled on the problems created by the clash between law’s dated vision of the traditional family and the social realities of the diverse and complicated modern family. This piece, written for a University of Minnesota symposium, Family Values: Law and the Modern American Family, is a refreshingly concise essay that makes normative claims about how law should respond to most significant change in the family form: the dramatic rise in nonmarital cohabitation among not only heterosexual couples, but also couples of the same-sex and adults who share a care, but not a romantic, bond. Gallanis answers the question “to what extent should there be room in our law for a family outside marriage” with three claims: (1) non-marital cohabitation merits recognition and support in law; (2) given American mobility, relationship statuses should be universally portable across state lines; and (3) the law should do more to protect family units–however constituted–against third parties, as opposed to worrying only about their obligations to one another. It is this last point that gives rise to the third dimension alluded to in the title.
Gallanis begins by traversing some familiar ground on the treatment of non-marital cohabitants and same-sex couples. Although courts began in the 1970s to recognize contractual economic claims by one cohabitant against the other, those “Marvin rights” have turned out to provide very anemic protection to the weaker or more dependent party. Slightly later, some states moved to create quasi-marital, status-based rights for cohabitants, a shift endorsed by the American Law Institute’s Principles of the Law of Family Dissolution. And later still, same-sex couples got in on the action, earning status-based rights in various American and foreign jurisdictions, with great variation by jurisdiction in the particular status available and the rights and obligations accompanying it.
After laying out the landscape, Gallanis argues that the best normative approach is a “menu of multiple options,” which would allow partners to “tailor the level of recognition and protection to their particular needs and wishes.” He allows that “[m]arriage could still be the highest and strongest relationship,” but it need not occupy the entire spectrum of legitimate adult relationships. He invokes statutes in several European countries for comparison, some of which not only allow same-sex couples equal access to all forms of family recognition, but also allow opposite-sex couples to choose from a menu that includes marriage as well as other less demanding statuses. Gallanis argues that non-romantic duos should be able to seek legal recognition as well. Two elderly sisters who cohabit and care for each other should be able to seek something like the Medieval French “affrairement,” which treated them as a cognizable family unit.
In the second part of the article, Gallanis briefly makes the claim that family structures “should be portable across state lines for parties who change their state of domicile.” He cites the high mobility rates of Americans to justify greater interstate recognition of same-sex relationship statuses–a privilege that most heterosexual families, regardless of form, already enjoy. As he correctly notes, arrangements like civil unions, domestic partnerships, and same-sex marriages are “either not portable at all beyond the relevant state’s borders or portable only to a limited number of destinations,” which “creates substantial difficulties for couples changing their domicile.” All this is true, of course, and the many layers of complication for couples with a status that is not portable–either across state lines or into the federal law realm–are just beginning to reveal themselves. Because marital status is the basis for so many legal determinations–everything from eligibility for Medicaid to hospital visitation rights to estate tax exemptions–a system in which large numbers of people become married or unmarried simply by traveling, moving, or having a legal issue governed by federal law is bound to crumble eventually.
Gallanis’s final claim relates to the rights of a family unit as against outsiders. Marriage, he explains, “offers a range of such three-dimensional legal protections for the spouses and their property.” These protections include the right to hold property as tenants by the entirety, which provides “impenetrable asset protection”; estate tax benefits provided by the unlimited marital deduction, along with varied other state and federal tax benefits; and provisions designed to protect the spouse of a Medicaid recipient. The federal Defense of Marriage Act prevents the extension of any federal rights to same-sex married couples, and many state laws and constitutional provisions prevent it on the state level. Thus, unmarried cohabitants and same-sex couples, even those in formally recognized relationships, generally lack this third dimension–the right to be treated as an entity vis-à-vis third parties.
This section highlights an important point that can get lost in controversies over the modern family form: the family is, in addition to whatever else it might be, an economic unit. Although we no longer invoke Blackstone’s notion of husband and wife as one flesh, we cling in many respects to the notion of a married couple as an economic entity, inviolable by outsiders. Yet, despite the notable victories of the same-sex marriage movement (full marriage equality in five states plus the District of Columbia and marriage-equivalent statuses in at least seven others), the right to economic unity remains elusive due in large part to DOMA, which prevents equal treatment in the realm of tax, pensions, and many forms of governmental financial assistance.
The conception of the family as an economic, as well as a social unit, comes not only from family law, but even more so from the law of inheritance and tax. Families prosper or fail in large part based on whether the family, as a unit, has earned money or successfully held onto money that is inherited or received as a gift. Parents support their children; grown children sometimes support their aging and disabled parents. Lifetime transfers between adult partners or spouses and between parents and children can be the key to opportunity and success; the lack thereof can squelch opportunity. Transfers at death generally go to family members, especially spouses. The government props up families through programs like Medicaid, Social Security, and welfare; it provides economic support as well through various provisions of the tax code. Thus, although it is fashionable to treat family law and the laws of inheritance and tax as completely unrelated subjects, Gallanis’s piece is a reminder of how interconnected they are. For the “flexible family” to thrive, it must be recognized in these diverse legal frameworks, as well as from state to state and by the federal government.
