Apr 27, 2011 Brian Bixjuris
In this brief companion piece to his longer work, “The Correspondence of Contract and Promise,” Jody Kraus displays how a “personal sovereignty” account of individual autonomy can explain the ability of individuals to impose moral obligations on themselves.
Contract Theory has become increasingly focused on the related issues of the philosophical foundations of promising, and the relationship between promise and contract. As Kraus points out in his longer Columbia Law Review piece (“Correspondence”), one cannot reach any conclusions about whether contract law deviates from the morality of promising until one determines the source and extent of the moral obligation of promising.
One view in the area has been that the normative force of promises comes from the social practices and conventions which a community established to make an act of promising sufficient to impose an obligation on the promisor. Kraus notes that Joseph Raz appears to argue that individuals have the power to create normative obligations through promising, because it would be valuable for them to be able to do so. (128) As Kraus discusses in “Personal Sovereignty,” views like these have elicited the skeptical response that one cannot simply create a moral obligation out of thin air. For these skeptics, neither the presence of a social practice or convention nor the claim that the ability to be able to bind oneself would be a good thing, could be sufficient to allow individuals to create new obligations in this way. The skeptics continue, whether a promise creates an obligation depends on some other more basic axiom of moral philosophy (e.g., for the consequentialist, whether keeping this promise will increase overall social utility).
Kraus’s response, in “Personal Sovereignty,” is that personal sovereignty can explain promissory obligation in a way that avoids the skeptical reply. Personal sovereignty “recognizes the fundamental right of individuals not only to choose their system of ends but also to choose how to pursue those ends.” (127, quoting Krause, “Correspondence,” at 1609) Kraus argues that this account of individual autonomy would include the ability of parties to impose obligations on themselves. This approach would escape skeptical objections because “personal sovereignty” is a foundational axiom, that neither requires nor allows further justification (that is, it plays the same role as “maximizing utility” does for those who argue that enforcing promises must be justified on consequentialist grounds).
This all may seem parochial, of interest only to contract law theorists, but comparable debates are going on in many other parts of legal and moral philosophy. The version of legal positivism Scott Shapiro presents in Legality (Harvard University Press, 2011) is built on the idea that when we (as individuals or as a collective) make plans for ourselves, we give ourselves reasons for action (to do what we planned, and to do what we need to do to execute those plans successfully) that we did not have before. (Though, for Shapiro’s theory, which is built on Michael Bratman’s work, it will be collective plans, not individual plans, that are central.) Again, this is a picture of what might be called “boot-strapping” within practical reasoning, of individuals being able to create prescriptions where none existed before – and, in the case of plans, without the level of commitment or the background of social practices and conventions that is arguably present for promising.
When, how, and under what circumstances people can morally bind themselves – either individually, bilaterally, or collectively – is a crucial topic for many aspects of moral, legal, and political philosophy. Jody Kraus in “Personal Sovereignty” has offered a powerful, straight-forward and intuitive answer to one version of the question, that might well resolve some basic problems in contract theory (as he argued in “Correspondence”), but there are still related problems in explore in general jurisprudence and political theory.
Apr 25, 2011 Paul M. Secundaworklaw
David J. Doorey,
In Defense of Transnational Domestic Labor Regulation, 43
Vand. J. Transnat’l L. 953 (2010), available at
SSRN.In his new paper, In Defense of Transnational Domestic Labor Regulation, Professor David Doorey has written a meticulously footnoted and researched article on an important issue that is increasingly facing modern democratic economies: to what extent should such countries seek to use their influence to improve labor practices in economically-developing countries? As Doorey explains, the answer is not as simple as merely deciding you want a labor side agreement to the latest free trade agreement. No, in addition to more formal legislative enactments, Doorey thoroughly explains the developing trend of using techniques which exist outside of formal state action, but nevertheless serve to influence and regulate working conditions and employer-employee relationships in third-world countries. Examples of this “de-centered legal orientation” range from nongovernmental organizations (NGOs) monitoring and investigating multi-national corporations (MNCs), industry-led initiatives seeking to eliminate sweatshops, and consumer boycotts of MNCs that employ abusive labor practices. Doorey explains that these types of non-state activities are here to stay and the central issue is whether these informal practices can be put to good use to advance progressive labor policies in third-world countries.
The topic is complex and Doorey should be congratulated for bringing his impressive transnational labor law knowledge to bear on this area of law. It is certainly a must-read paper for anyone who is seriously engaged with workplace issues in the global economy. For instance, Doorey exhaustively reviews the literature in favor of, and against, using legislation that harnesses the power of these more informal practices to push foreign third-world countries to develop more worker-friendly labor policy in their countries. Nevertheless, one is left with at least two compelling questions after reading this thoughtful paper: (1) Will the more informal, new governance-influenced practices which Doorey seeks to harness really lead to the necessary workplace changes that workers’ rights advocates seek in developing countries?; and (2) Given the troubling labor situation in “developed” countries, should such countries not focus more on their own shortcomings when it comes to workers’ rights in order to gain more credibility with nations around the world?
As to the first question, it interesting that Doorey decided to title his paper: In Defense of Transnational Domestic Labor Regulation. Transnational domestic labor regulation (TDLR), as described by Doorey, is “unilateral” regulation introduced by a government to influence labor practices in foreign jurisdictions. He certainly does discuss TDLR in much detail, but the more interesting and provocative part of the paper, I believe, involves his discussion of how TDLR can harness the power of private labor regulation (PLR), with the aim of improving foreign labor practices. As Professor Kevin Kolben has aptly explained: “[PLR] in the context of transnational labor encompasses a broad range of practices, generally outside of the strict purview of the State, that serve to regulate working conditions and the employer-employee relationship.”
In short, PLR represents a cluster of de-centered and reflexive legal approaches consistent with the new governance school of workplace governance. Professor Cynthia Estlund has described new governance theory in her recent and equally provocative book, Regoverning the Workplace (Yale Univ. Press 2010):
[New Governance theory has] two interlocking themes: the idea of “decentering the state” and elevating the regulatory role of other nongovernmental actors, including regulated entities themselves; and the idea of “reflexivity” in law—of replacing direct regulatory commands with efforts to shape self-regulation and self-governance within organizations. (Regoverning the Workplace at 136).
As I wrote in review of Regoverning the Workplace, Estlund’s embrace of “regulated self-regulation” or “co-regulation” in the workplace may inevitably lead to further employer domination of the workplace. This is because United States history is replete with examples that limitless employer power, constrained only by market forces and reputational costs, leads to the worst forms of employer opportunistic behaviors and employee abuses. So, my fear is that just like de-centered or new governance schemes are unlikely to have their intended effect in the labor context in the United States, PLR-centered strategies in foreign countries will also lead to problematic outcomes.
I am highly skeptical that PLR initiatives and campaigns will be able to effectively focus “on empowering workers at the factory level and building a climate in which the governments of host states and factory owners are prepared to recognize labor rights.” (P. 1006.) Instead, such an approach is more likely to “to perpetuate a dysfunctional model of labor governance in which disproportionate power rests in the hands of corporations and employers who are unmotivated to effect any real, sustainable change that empowers workers.” (P. 976.) Consequently, I tend to side with those who believe that, “an effective industrial relations system ultimately requires a strong local government prepared to bolster and control worker power through protective labor legislation that facilitates independent union representation and other labor standards.” (P. 976.)
This all leads me to my second point: who are we, the developed countries of the world, to think we know what’s best for these other countries? First, as Doorey himself points out, these third-world countries have their own complex cultural, political, and economic systems and we might do more harm than good through TDLR employing PLR strategies (think unions in China). But additionally, shouldn’t we first focus on our own shortcomings in the labor area before preaching to others? I mean just consider labor and employment law in the United States and the question of whether those laws do nearly enough to protect the interests and rights of the average worker.
Traditional labor law is failing workers in the United States in providing adequate voice in the workplace through union representation (private sector union density is now down to 6.9%). Its de facto replacement, “employment law,” is a multi-headed hydra made up of a confusing array of minimum labor standards and workplace rights where many times employees choose to accept employer abuses rather than to negotiate the legal landscape. Moreover, the ability of private litigation in the labor and employment area to secure rights for United States workers has been substantially diminished by a United States Supreme Court seemingly set on an anti-litigation agenda in the civil rights context. Now, I am in no way suggesting that we should ignore the worst types of worker exploitation in the world like oppressive child labor and sweat shops, but wouldn’t developed countries have more credibility internationally on the labor relations front if they did not treat their own workers so abysmally?
Doorey’s comprehensive TDLR discussion provides important food for thought in how to use current trends in the global workplace for the benefit of workers throughout the world. And to that extent, we certainly agree that workers’ rights continue to be a human and civil rights issue that requires substantial attention from governments around the world. Yet, we split company over the utility of new governance methods in assuring pro-employee outcomes in foreign jurisdictions. I believe Doorey is simply overly optimistic with regard to PLR’s utility in developing labor rights in third-world countries. We also part ways perhaps on where labor reform energies should be directed (and I do believe that developments in one of these areas necessarily diminish the possibility of development in the other). In short, I worry that focusing prematurely on labor rights in foreign jurisdictions gives the false impression to our own citizens that our own “labor house” is in order.
Apr 22, 2011 Paula Monopolitrustest
Palma Joy Strand,
Inheriting Inequality: Wealth, Race and the Laws of Succession, 89
Oregon L. Rev. 453 (2010), available at
SSRN.
In her recent article, Inheriting Inequality: Wealth, Race and the Laws of Succession, Palma Joy Strand unpacks the connection between social mobility and inherited wealth. She situates this discussion within the broader picture of the increasing gap between rich and poor in the United States. Strand isolates the role of race in that trend and she argues that the transmission of inherited wealth, as much if not more than income levels, is a dominant predictor of whether a family will move between classes in American society. Her goal is to develop a theory of the relationship between inheritance and the reproduction of our economic structure. It is an ambitious goal and Strand makes substantial steps toward it in this article.
Strand first presents the data on the increasing inequality of overall wealth accumulation in this country, noting the distinction between “income” and “wealth.” She defines the former as the inflow of resources over time offset by outflows to cover expenses and the latter as accumulated assets most often accrued within the family. Strand cites sociologist Seymour Spilerman for the proposition that “even modest levels of wealth have the ability to “cushion” families, particularly low-income families from economic shocks such as illness or job loss” and that wealth levels are correlated with educational achievement and well-being. With this data, Strand lays the foundation for her argument that we must reform inheritance laws because they have a disparately negative impact on the accumulation of wealth in certain kinds of families.
After noting that wealth inequality in the United States is substantially greater than in most developed countries (as is income inequality), Strand then cites research that establishes the skewed distribution of wealth is most stark when looked at through a racial lens. While income inequality is striking as between blacks and whites, the differences in accumulated wealth are even more skewed. For example, 65.6% of white compared to 41.6% of black households had home equity and of those households, the median value of the asset was $45,000 for whites and $31,000 for blacks. Institutional discrimination in housing, including more limited access to credit, higher interest rates on mortgages and lower rates of appreciation for housing in black neighborhoods, explains much of this disparity.
Strand then identifies the role of inheritance in wealth inequality. She notes that if one fails to make a will, intestate succession passes property through the probate process to close family members. In addition, much wealth is transmitted through nonprobate vehicles like joint tenancy, life insurance, payable on death accounts – all of which require that the decedent take action to use these vehicles. These facially neutral rules appear to operate without regard to race or class. But Strand makes the argument that they have a disparate impact on those who are working or lower-middle class and particularly those who are black within those categories. Strand again provides empirical research to support her argument, citing statistics on inheritance that she argues demonstrate a strong racial skew.
Strand pointedly reminds the reader of what she calls “the genesis of race.” She cites historian Theodore Allen for the proposition that race was a socially constructed category and the means to an end. “The creation of two classes of people with significantly different statuses based on their personal or ancestral origin – “race” – broke up burgeoning class solidarity that threatened to unite Euro- and African-American bond laborers against the ownership class in the late 1600s and early 1700s by attaching “Whites” of that class to the economic elite (all of whom were Euro-American) on the basis of common ancestry and carefully selected shared privileges.” And members of the oppressed class that remained – African-Americans – were deprived of political and civil rights and denied access to literacy. Family rights and authority were displaced and– most importantly for purposes of Strand’s article – members of that oppressed class were not allowed to accumulate positive wealth.
Strand proffers two race-neutral paths to reverse the economic and social consequences of race in current inheritance patterns. She acknowledges that solutions that included racial preferences would not likely pass constitutional muster. The first approach addresses inheritance as windfall wealth and Strand characterizes this as approach as “addressing advantage.” This proposal would tax inheritances as income in the hands of those who inherit the decedent’s assets. The second proposal “addresses disadvantage” as Strand says and the goal is to preserve wealth among those who are at the low end of the income spectrum by acknowledging that a high proportion of such decedents die intestate and leave only a family home. Strand embraces the reform proposals put forward by Heather Way in Way’s article Informed Homeownership in the United States and the Law, 29 St. Louis U. Pub. L. Rev. 113 (2009) and suggests that American inheritance law include the authority to preserve the family home for the actual occupant rather than heirs who may have little, if any, connection to the home. Refusing to allow fractional interests to pass by intestacy preserves the home as both shelter and as an asset that might be used to finance education or protect the health of family members who actually occupy the home, often younger generations.
These proposals are provocative. The reader may disagree with them substantively or because they seem politically unrealistic in the current environment. But Strand has made a significant contribution to the literature by identifying and providing empirical support for the disparate impact of what appear to be race and class neutral policies embedded in our inheritance laws. This is not a topic that has been widely discussed in the literature. As social mobility stagnates in this country, a clear-eyed assessment of the nexus between such mobility and inheritance is an important step in thinking broadly about whether our current inheritance paradigm is consistent with our values as a nation.
Apr 20, 2011 Robert Rosencorp
Donald C. Langevoort,
Chasing the Greased Pig Down Wall Street: A Gatekeeper’s Guide to the Psychology, Culture and Ethics of Financial Risk-taking,
Cornell L. Rev. (forthcoming), available at
SSRN.Donald Langevoort demonstrates, again, his ability not only to do behavioral economics but also to reframe it by placing actors in organizational contexts and relations. Behavioral economics, sharing economics’ methodological individualism, analyzes biases and cognitive heuristics in regards to individual risk taking. More broadly, social psychology investigates decision effects that result from affects, visceral and cultural factors, as well as pressures toward or against groups and authority. For example, Solomon Asch emphasized that people make decisions in public differently than they would in private, based on their impressions of others, and seeking legitimacy. Langevoort presents research that builds on Asch, for example the finding that in the presence of an audience, facing rivals, with time pressure to make a mark, individual motivation may shift from goal attainment to an obsession with winning at all costs. Such work not only uncovers other sources of bias, but also it reframes the subject as decision-making rather than only risk-taking. In “the ‘competitive arousal’ model of decision making,” the actor doesn’t engage in risk analysis, rather other motivations and models engage the actor. For some it is Tversky or Asch. Langevoort learns and masters work in both traditions, and more.
Langevoort’s subjects are the decisions that led to the Global Financial Crisis (GFC) and what gatekeepers need to learn from it. A principal-agent approach to the GFC demands explaining excessive risk-taking by theoretically risk-averse employees (invested in and frightened of losing their jobs). Although he has proffered other explanations, in this article, Langevoort focuses on the firm’s shaping of actor’s understandings and motivations. A principal-agent approach normally addresses the design of appropriate contracts, incentives, compensation and monitoring systems. In this article, Langevoort focuses on understanding the firm’s organizational culture.
Langevoort proposes the functionality to firms of employees being unrealistic and overconfident, able to deflect doubt and sometimes taking unjustified risks. “He who hesitates is lost” is an adaptive mindset for a firm in a competitive environment. In analyzing reports from the GFC, Langevoort draws out a wide range of aspects of firm culture, including routines, myths, scripts, rationalizations, fraternity-like excess, ideologies, and sense-making perceptions and inferences. With such a developed understanding of corporate culture, Langevoort might have added that there are multiple cultures in any organization and the adaptive one on which Langevoort focuses may be joined to others, such as the one that might be carried by gatekeepers, inscribing “Look before you leap.”
Langevoort advises gatekeepers that they need to understand organizational culture. Of course, one result is that gatekeepers will understand not to believe everything presented to them. Understanding organizational culture importantly reveals that it is not normally the case that misreporting is the result of deception. The misreporting is scripted in firm culture and makes sense to its participants. Langevoort advises gatekeepers not to challenge the risk-taking culture (no “Fools rush in where angels dare to tread”), emphasizing that awareness of the culture will teach when objectivity must be sought.
Despite Langevoort’s analysis, at points he is unwilling to move beyond methodological individualism. He says that the issue is what “might bias the assessment of financial, legal, and reputational risk.”(P. 30.) He says he is only “project[ing] individual cognitive biases into the larger organizational culture.” (P. 12.) Yet, at other points, he speaks of culture as “making it hard to perceive the need to rethink,” (P. 24), or providing “deeply held cultural ideologies” (P. 26.)
There are at least two reasons why it is difficult to move beyond risk-taking as the description of decision-making, neither of which I can do justice to here. The first is that understanding decisions as risk analysis enables experiments and theory development, even as it eclipses the actor. On the other hand, one of the joys of Langevoort’s work is that the actor peeks through. In my understanding, to an organizational actor, the choice is not always (or normally) which of a well-defined set of options to choose. The choice is “What shall I do.” The organizational actor is immersed in actions and in culture. Facing decisions, she solves problems. Of course, she uses evidence and assesses probabilities. But, as she conceives them, intelligence and imagination are her normal tools for decision-making, not risk-analysis. Inscribing the actor within the broader understanding of decision-making may be noisy, but has its charms.
The second reason why it is difficult to move beyond risk-taking is an identification of risk-taking with corporate behavior. One indication of this is that risk management has become the regulatory response to the GFC. This article is relevant to corporate law because gatekeepers (including the board) are increasingly tasked with assessing financial, legal, and reputational risk. This focus on risk management occludes that “risk” has multiple meaning (or that uncertainty differs from risk) and treats all business as if it were the casino capitalism that led to the GFC.
What does the failure to hedge against systemic risk in the CDO market tell us about, say, the decision to chance violating emission discharge laws by a manufacturer? If by legal risk we mean the risk of getting caught and paying a fine greater than a certain sum, then everyone may be in a casino (and ignoring ALI Principles of Corporate Governance §2.01). But, decisions are more complex than that and involve commitments, character and cultures.
Failing to recognize that risk-taking is one part of decision behavior and failing to recognize what appears as a risk may be a predicate to self-defining choices leaves us understanding all of business as casino capitalism.
By inviting both Tversky and Asch, Langevoort invites deeper understandings.
Apr 18, 2011 Ann Bartowcyber
The abstract of the piece lays out the author’s thesis very cleanly and clearly in a single sentence: “… [E]ven though Facebook users have privacy options to control who sees what content, this Article concludes that every single one of Facebook‘s 133 million active users in the United States lack a reasonable expectation of privacy from government surveillance of virtually all of their online activity.” Semitsu begins the piece by explaining the social and political importance of Facebook in a compelling way. To take just one example, he observes a huge percentage of matrimonial lawyers have used or faced evidence found on social networking sites in during divorce proceedings. He then explains that while people may use the privacy controls that Facebook provides them in ways that successfully mediates the information exchanges they have with other private citizens or with commercial entities, these controls have no meaning vis a vis the government. This is because literal application of the Third Party Doctrine means Facebook users can’t have a reasonable expectation of privacy in anything they post. And potentially pertinent provisions of the Electronic Communications Privacy Act may not even apply to Facebook-based communications. Therefore, as Semitsu cogently explains, “though Facebook has been justifiably criticized for its weak and shifting privacy rules, even if it adopted the strongest and clearest policies possible, its users would still lack reasonable expectations of privacy under federal law.”
Semitsu evaluates Facebook’s architecture, its evolving approaches to user privacy, noting that Facebook users may misunderstand their actual ability to delete their accounts or keep information confidential, and that many decline to take advantage of the privacy tools that are available to them. He observes that the situation is pretty similar at other social networking sites as well. Then he launches into an extended elucidation of how the government uses Facebook as an investigative tool. He compellingly illustrates the non-piddling possibilities by explaining how a campus police officer used Facebook to become a whiz at apprehending a University of Illinois student observed urinating in public. Facebook was deployed by law enforcement not because the crime was significant but because it is a fast, cheap and easy way to identify those suspected of extremely minor infractions, who might not have even been pursued if more resources were necessary to bring him to justice.
Semitsu lists many different Facebook disclosure fact patterns and charts the ways they intersect with existing evidence collection doctrines and practices. Examples include the use of fake profiles, voluntary disclosures, and data mining techniques. Then he provides a thorough-seeming overview of Katz v. United States, and what he characterizes as its “two step approach that looks to the reasonableness of a search or seizure” as it has evolved across time and technologies. He paints a picture of Facebook as a giant surveillance tool, no warrant required, which the government can use in a mind bogglingly creative range of ways, with almost no practical constraints from existing laws.
He finishes with the requisite normative component, a plan to reconfigure the law so that Facebook is more like a phone booth, in terms of the associative reasonable expectations of privacy its users can have. I like the idea of starting with real space norms that are fairly clearly understood, and trying to build them into an electronic environment a lot. (Well, obviously I would). His proposal might have benefited from a more thorough taxonomy, in terms of how the laws would be modified and how they would, in turn, interact with Facebook and each other. But like the rest of the article, it provides a jaunty yet terrifying account of how clueless most Facebook users are with respect to the diminution of our Fourth Amendment rights online. While we lobby for social networking tools to give us more control over our profiles, and debate the transparency or lack thereof with which corporate actors track us or collect and use our personal information, we barely notice that Facebook leaves us almost completely vulnerable to searches and seizures triggered by invasive but mostly invisible government surveillance. Semitsu’s clever article brings this squarely to our attention.
A couple of concluding qualifiers. First, I do not know Junichi P. Semitsu but after reading his USD Law bio I definitely hope to meet him some day. Here is an excerpt:
In his spare time, he recently served as the embedded blogger for the Dixie Chicks, appeared as a contestant on Who Wants To Be A Millionaire?, and won the title of “Funniest Lawyer in San Diego” at the San Diego Volunteer Lawyer Program’s LAF-Off (Lawyers Are Funny) competition.
Funny is good! So are law professors that do important work but do not take themselves too seriously.
Second, I am not an expert in Fourth Amendment law, to put it lightly, so there may be errors or omissions that escaped my notice, though I didn’t find any through a bit of spot checking or from consultation with better versed colleagues. I found the article to be very well written and well sourced (again with the caveat that I am not well placed to know whether he cited all the important Fourth Amendment literature that he could have). Semitsu has a fresh, accessible and engaging voice. I learned a lot from reading this article.
Apr 13, 2011 Howard M. Wassermancourtslaw
Michael S. Pardo,
Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation,
51 B.C L. Rev. 1451 (2010).
Perhaps the highest praise for any piece of scholarship is “I wish I had thought of that.” As someone who writes in civil procedure and dabbles in evidence, that was my reaction to Michael Pardo’s Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation. Pardo, for arguably the first time, links non-trial dispositive procedures in civil litigation (Dismissal for Failure to State a Claim, Summary Judgment, and Judgment as a Matter of Law) to the underlying law of evidence that would control the claim at trial. The result is a theory of “procedural accuracy,” under which evidentiary proof rules (especially as to burden and standard of persuasion) inform and provide content to the operation of dispositive procedures, ensuring that those devices produce procedural outcomes that align with the outcomes and policies dictated by evidentiary proof rules. By drawing these links, Pardo both justifies the use of non-trial dispositive procedure and shows how those procedures should properly function.
Courts and commentators have largely ignored this procedure-evidence link. Perhaps this is another by-product of the “disappearing trial.” Because civil actions, especially in federal court, so rarely get to trial (in 2009, trial began in approximately 3 % of civil cases, which actually represented a slight increase from a few years prior), the tendency is not to think about civil actions or civil procedure in trial terms, but only in terms of dispositive non-trial procedure. There has been no systematic effort to link the ordinary operation of dispositive procedure to the controlling evidentiary standards. The Supreme Court has twice drawn these connections.
This is the gap that Pardo fills.
He starts from the premise that, however rare trials may be, trial rules can and should influence the operation of the litigation process as a whole. Evidentiary proof rules seek to increase material accuracy (the outcome is grounded on factual conclusions that match reality), while procedural rules seek to increase procedural accuracy (the outcome of the process matches what material accuracy demands). The standards for implementing those dispositive procedural devices thus must be informed by those underlying proof rules.
Pardo then proposes a different conception of evidentiary proof rules (one that he and Ron Allen had previously explored) as grounded not in probabilistic relationships between evidence and facts, but in explanatory relationships between evidence and facts. This conception asks whether the explanation proffered by the party with the burden of persuasion, if true, better explains the evidence and disputed events than alternative explanations (either explanations proffered by the opposing party or alternative explanations not offered by either party). Thus a party carries its burden of persuasion by a preponderance of the evidence when the explanation it proffers is the best explanation for what the evidence shows happened in the real world, even if only slightly better. A party carries its burden of persuasion by clear-and-convincing evidence when its explanation is clearly and convincingly better than alternative explanations.
This evidentiary framing then controls non-trial dispositive procedural devices. For example, on summary judgment and judgment as a matter of law (both of which ask the same procedural question), a non-moving party with the burden of persuasion must show that a reasonable jury could find its explanations of the evidence, facts, and events to be a better explanation than the explanations favoring the defendant. That is, summary judgment should be entered only if a reasonable jury could not find the non-moving party’s explanation to be better than any other explanations that favor the moving party. And if the standard of proof is the elevated clear and convincing evidence, that explanation must be clearly and convincingly better. Similarly, the question on a 12(b)(6) motion is whether a reasonable jury could find the explanation of the events as pled the best explanation or whether there is an alternative explanation that a reasonable jury must find at least as likely than the plaintiff’s preferred explanation.
Pardo argues that this model both explains existing law and can guide courts as to the proper approach to these devices going forward. Importantly, the model provides content to the much-discussed, much-criticized, and still-undefined concept of “plausibility” in pleading introduced in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. Pardo argues that plausaibility means that the explanation of events as alleged seems (to a reasonable fact-finder) as if it could be true and provides a “tentative, acceptable account of the disputed events.” A complaint is plausible if a reasonable jury could find it to be the best explanation. He also argues (contra Suja Thomas) that the “reasonable jury” inquiry is neither a legal fiction nor impossible to separate from the judge’s own view of the facts. In fact—returning to the way evidence informs procedure—Pardo argues that the reasonable-jury standard is a well-established feature in the law of evidence, where the admissibility of one piece of evidence often turns on whether there is evidence sufficient to support a finding of some preliminary fact—meaning whether a reasonable jury could find that fact. Thus, if the reasonable-jury standard works on discreet evidentiary matters, it should work in all procedural devices that rely on evidentiary concepts.
This article represents a giant step in linking civil procedure and the law of evidentiary proof, a project that also remains a work in progress. For example, Pardo is a bit too forgiving of the Supreme Court’s recent pleading decisions, particularly Iqbal, which invites judges to dismiss claims whenever they identify, through their common sense and experience, alternative explanations for some events, without necessarily comparing which explanations a reasonable jury might accept. Under Pardo’s model, if a court finds two equally good explanations for some events, that should mean that a reasonable jury could find the plaintiff’s explanation better, meaning a case should pass that procedural hurdle. Otherwise, it is hard to see how the judge controlling these dispositive procedural devices is not acting as a fact-finder.
But Pardo provides the essential insight that civil litigation is a unified whole—in its pre-trial and trial processes—designed to reach a materially accurate result through factual allegations and evidence, and every procedural step in the process works towards that end. That insight can shape and guide further consideration of dispositive procedure.
Apr 13, 2011 Michael Froomkincourtslaw
Courts Law Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Adam Steinman
Professor of Law
Seton Hall University School of Law
Professor Howard M. Wasserman
Associate Professor of Law
Florida International University College of Law
Contributing Editors
Contributing Editors agree to write at least one jot for Jotwell each year.
Professor Sergio J. Campos
Associate Professor of Law
University of Miami School of Law
Professor Brooke Coleman
Assistant Professor of Law
Seattle University School of Law
Professor Lee Epstein
Henry Wade Rogers Professor
Northwestern University School of Law
Professor Lonny Hoffman
George Butler Research Professor of Law
University of Houston Law Center
Professor Suzette Malveaux
Associate Professor of Law
Columbus School of Law, The Catholic University of America
Professor James E. Pfander
Owen L. Coon Professor of Law
Northwestern University School of Law
Professor Suzanna Sherry
Herman O. Loewenstein Professor of Law
Vanderbilt University Law School
Professor Suja A. Thomas
Professor of Law
University of Illinois College of Law
Professor Jay Tidmarsh
Professor of Law
University of Notre Dame Law School
Professor Steve Vladeck
Professor of Law
American University Washington College of Law
Professor Kevin C. Walsh
Assistant Professor of Law
University of Richmond
Apr 11, 2011 Diane Ringtax
Jan Wouters and Katrien Meuwissen,
Global Tax Governance: Work in Progress?, Leuven Center for Global Governance Studies, Working Paper No. 59 (Feb. 2011), available at
SSRN.
The international financial crisis has captured the attention of legal scholars across many fields. By virtue of the “international” dimension of the crisis – a function of both its scale and the interconnectedness of commercial and financial flows – specific focus has been directed to the role of international organizations, bodies, and agencies in preventing (or failing to prevent) the crisis. But underlying this attention to international organizations remain a host of unanswered questions about the ways in which states and organizations navigate issues of power, influence, priorities, and resources. A recent working paper by Jan Wouters and Katrien Meuwissen, Global Tax Governance: Work in Progress?, begins the process of linking financial concerns, interlocking international organizations, and related tax policy. The paper offers a window onto the landscape of major actors exercising influence in the current global economic environment and the differing ways in which they advocate on tax policy.
The paper argues that following the 2008 financial crisis fiscal sustainability emerged as a central goal worldwide, and that in addition to domestic measures, countries pursued policies on a global, more coordinated scale. Tax policy was considered crucial to national efforts to take control of the fiscal arena — and coordination was considered essential to successful tax policy. Wouters and Meuwissen ultimately conclude that “no single international forum can be accepted as a fully effective and legitimate global tax policy-maker.” Urging that we may be witnessing a developing global tax governance, the authors nonetheless caution that “integrat[ion] [of] standards into binding agreements is necessary to translate ‘governance’ into ‘law.’” But how exactly does this coordination and policy development take place within and among organizations?
In an effort to illuminate this inquiry, Wouters and Meuwissen map out the major international players, their distinctive organizational structures, and their particular contributions to tax policy discussion in light of the financial crisis. The major players are indeed the ones we’d expect to see – the G-20, the OECD, the UN, the IMF, and the WTO. What is particularly useful is the way in which the paper targets the post-2008 period and provides a tight comparison of the kinds of action or commitment each organization was willing to make and then outlines the explicit ways in which the organizations linked their actions to the positions or work of other groups. For example, the G-20’s very broad policy statements (including support for transparency and exchange of tax information) directly reference and buttress the work of the OECD and the Global Tax Forum. Conversely, the authors discuss how the G-20’s powerful political profile (post-September 2008, the G-20 meeting was conducted at the level of heads of state) allowed this tax agenda to gain prominence. Wouters and Meuwissen are particularly interested in the links among an organization’s structure (e.g., top leaders with informal structure v. experts with a delineated decision making structure), its mission (discussion forum v. policy development) and its output (general statements of support v. protocols, treaties, surveys). Not surprisingly, the major players differ on these dimensions and hence their contributions correspondingly vary – but they remain inextricably connected.
Given my own interests in international organizations, this analysis leads to more questions that I believe will be both important and fascinating to pursue as we seek to better understand the dynamics of tax policy at an international level: How do states use their own participation in different organizations to move a desired agenda forward? For example, if a state is a member of the G-20 and also the OECD, how does it operate differently within each body? Where membership-overlap exists, how does it impact the interactions between the organizations? From an individual state’s perspective, to what degree is its participation in these organizations part of a monolithic strategy as opposed to the by-product of sub-state actors each pursuing a specific mission within the institution to which they have access? To the extent that scholars interested in global governance generally, such as Wouters and Meuwissen, join this inquiry a rich dialogue over international tax policy can continue to flourish.
Apr 7, 2011 Jennifer Chaconcrim
Rick Su,
Local Fragmentation as Immigration Regulation, 47
Hous. L. Rev. 367 (2010), available at
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The borders of immigration law are incredibly porous. Although immigration law, strictly defined, encompasses the rules that govern the terms of admission into and exclusion or expulsion from the country, immigration law is in fact inextricably intertwined with a whole host of other legal regimes. This includes obvious examples like naturalization and alienage laws, as well as labor law, criminal law and economic policy. But it also includes a host of less obvious candidates.
In his recent article in the Houston Law Review, Rick Su examines an area of law that is not often thought about in conjunction with immigration law: local government law. The connection between immigration law and local government law is not intuitive. Since the late Nineteenth Century, courts have found that the national government has the exclusive power to regulate immigration law, and that Congress’ power to enact immigration legislation is plenary. States and localities, therefore, must limit their own efforts to regulate immigration to areas of the law that are not preempted by Congress’ fairly comprehensive immigration regulation. Although state and local governments recently have played a larger role in enforcing federal immigration law than has historically been the case, courts generally have rejected efforts on the part of states and localities to directly regulate immigration through their own laws. This can be seen in the largely unsuccessful efforts of localities like Hazelton, Pennsylvania and states like Arizona to pass immigration-related ordinances that withstand constitutional scrutiny.
One might therefore assume that localities have not played any significant role in the nation’s immigration history. But in his recent article Local Fragmentation As Immigration Regulation, Rick Su demonstrates that this is not the case. Su’s argument is that laws governing municipal boundaries have served the function of immigration regulations at the local level. Exploring the similarities between immigration and zoning regulations, Su argues that, “[a]side from the doctrinal connections, the two also share deep historical roots. Indeed, it can be argued that immigration and local spatial controls were envisioned as counterparts of a broader regulatory regime from the very start.” Su at 383.
Su’s article traces the parallel development of zoning and immigration regulations from the early part of the twentieth century through the present. The phenomenon of defining local membership and allocating benefits on the basis of such sub-national membership has deep historical roots. Su notes that local zoning regulations – which have resulted in “segregated neighborhoods and differentiated communities” have operated as a pervasive a form of “second-order immigration regulation.” Su at 370. While national immigration regulations operate as a “crude tool” for controlling national membership, local ordinances such as zoning ordinances serve as a more granular, sub-national form of regulatory control.
Su uses a variety of examples to make his point. To take just one example, he explicates the indirect immigration implications of two important cases concerning school district lines – San Antonio Independent School District v. Rodriguez and Martinez v. Bynum. In Rodriguez, the Supreme Court rejected an equal protection challenge to policies that generated grossly unequal educational funding across school district lines. Several years later, in Bynum, the court affirmed the state’s ability to make determinations concerning district residency and to limit access to education within districts on the basis of residency. Functioning together, these two decisions allowed states and localities to draw local boundaries and parcel out educational benefits unequally between these boundaries
Significantly, as Su points out, these two decisions bookend the Supreme Court’s decision in Plyler v. Doe, in which the Supreme Court affirmed the right of undocumented immigrants to obtain free public education in grades K-12. The Plyler decision concerned the same state regulations that were implicated in Bynum. Bynum is understandably seen as much less constitutionally significant than Plyler when it comes to issues of educational funding for undocumented students. Michael Olivas once wrote that by the time the Bynum case came to the Supreme Court, because of Plyler, “the more fundamental and important threshold issue had been settled; all else was detail.” Su’s analysis is a reminder that sometimes, the devil may be in the details. If a state is required to provide free education to undocumented K-12 students, but need not fund that education at levels comparable to the funding available in wealthier districts and if states and localities can use ordinances to zone much of the unauthorized immigrant population out of well-funded schools, it may be that the education is often worth less than meets the eye. At a minimum, district lines become a second-order means of controlling the benefits flowing to undocumented immigrants. Or, as Su puts it:
Seen alongside Rodriguez and Bynum, Plyler appears neither as promising as many of its advocates celebrated, nor as costly as its critics contended. Indeed, what these cases illustrate is that even while the Court was willing to undermine the symbolic sanctity of the national polity by extending its scope to include those who have been purposefully excluded, it was only willing to do so after preserving the divisions across local communities. (Su at 416).
By explicating how laws governing local membership and belonging have shaped the geography of immigration within the nation, Su demonstrates that the choice between national and local immigration regulation is a false one. His article makes it clear that we have always had a system that has allowed for some forms of indirect immigration regulation at the local as well as the national level, and that restrictive local regimes have sometimes created or maintained the political space that allows for more liberal federal immigration and alienage policies. Nevertheless, Su effectively demonstrates that the spacial fragmentation and inequality created by sub-federal regulations also have important and under-examined costs that bear on the immigration debate. His article therefore serves as a cautionary reminder to immigration scholars that creating good immigration law and policy requires much greater attention to the multifaceted (and sometimes less-than-obvious) local responses to migration that are driven by and in turn help to shape federal immigration laws and policies.
Apr 5, 2011 Michael Froomkincourtslaw
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
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