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Sequencing in Damages
Get PDFTort law contains multiple doctrines governing the assignment of liability and the calculation of damages. But in what sequence should courts apply these doctrines? Does it matter, for example, whether a court applies comparative fault before or after mitigation of damages? The answer, rather surprisingly, is that sequencing does matter, and it can substantially affect the compensation that a tort victim ultimately receives. Yet the existing case law on sequencing is ad hoc, inconsistent, and undertheorized, and the issue has been entirely overlooked by the academic literature. In this Article, we introduce and examine the question of sequencing. We offer three contexts in which the question arises in torts: failures to mitigate, damage caps, and collateral sources of funding. All of these contexts play a major role in determining liability and compensation, yet each demonstrates a different way in which attention to sequencing can improve legal analysis. Building on these examples, we develop a general theory of damages sequencing
Grey State, Blue City: Defending Local Control Against Confederate “Historical Preservation”
Get PDFConfederate monuments have become lightning rods across the American landscape. While these ubiquitous symbols have spread Lost Cause propaganda for over one hundred years, they have also instigated unprecedented protest and violence since the 2015 Charleston massacre, 2017 Charlottesville rally, and 2020 George Floyd murder. In response, southern state legislatures have passed preemptory “statue statutes,” laws that obstruct left-leaning cities from removing Confederate monuments. This Note compares the political and legal strategies cities and citizens have used to overcome these legal barriers, both in opposition to individual monuments and statue statutes themselves. Using Tennessee’s Historical Commission waiver process as a case study, this Note reveals how commission-based statue statutes act as objective façades disguising partisan bans on Confederate monument removal. Therefore, this Note urges that cities shift their energy from seeking waivers against individual monuments to publicly challenging historical commissions and statue statues so that citizens can regain legal pathways to peacefully and safely remove Confederate monuments
Racial Capitalism in the Civil Courts
Get PDFThis Essay explores how civil courts function as sites of racial capitalism. The racial capitalism conceptual framework posits that capitalism requires racial inequality and relies on racialized systems of expropriation to produce capital. While often associated with traditional economic systems, racial capitalism applies equally to nonmarket settings, including civil courts.
The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state plays a central role in their subordination through its judicial arm. A major function of the civil courts is to transfer assets from these individual defendants to corporations or the state itself. The courts accomplish this through racialized devaluation, commodification, extraction, and dispossession.
Using consumer debt collection as a case study, we illustrate how civil court practices facilitate and enforce racial capitalism. Courts forgo procedural requirements in favor of speedy proceedings and default judgments, even when fraudulent practices are at play. The debt spiral example, along with others from eviction and child support cases, highlights how civil courts normalize, legitimize, and perpetuate the extraction of resources from poor, predominately Black communities and support the accumulation of white wealth
The Emerging Authority of Magistrate Judges within U.S. District Courts
Get PDFThe federal judicial system is a hierarchy with district courts at the bottom, courts of appeals in the middle, and the Supreme Court at the top. A second, less visible, judicial hierarchy exists within district courts, with magistrate judges situated below district judges. Existing scholarship largely ignores magistrate judges, assuming they are agents tasked with procedural matters with little independent effect on federal courts adjudication. Using a combination of national administrative data (2000–2016) and original case-level data from nine district courts (1997–2014), we find that district courts not only grant meaningful responsibility and discretion to magistrate judges but do so in ways that vary substantially across and within districts. The effects of this judicial delegation extend from procedural rulings to substantive outcomes. Our findings provide evidence that a complete understanding of federal judicial decision making accounts for the roles—procedural and substantive—that magistrate judges perform
The Ghost of John Hart Ely
Get PDFThe ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of minorities and the policing of the democratic process remain second nature. Indeed, they have been credible enough among liberals to underwrite an anxious or even hostile attitude toward judicial reform. In order to exorcise Ely’s ghost and lay it to rest, this Article challenges his twin conjectures. First, the Article argues that there is little historical and no theoretical basis for the belief that courts will outperform legislatures in overcoming deeply entrenched historic discrimination against deserving minorities—even as courts act to entrench the power of undeserving ones, like the powerful and wealthy, today. Second, the Article contends that Ely’s almost complete failure to anticipate the inaction of the judiciary in policing the democratic process—except when judges assist their own ideological allies—is devastating for his theory, which depended precisely upon an empirical prediction. Ely’s conjecture about the comparative superiority of judges in policing the democratic process has proved untrue because he ignored ideological affiliation (focusing exclusively on personal self- interest) in supposing that, with their independence and life tenure, judges are less likely to act in self-dealing fashion than politicians. And the deepest reason for the ideological affiliation of judges, who often exacerbate what many take to be the worst pathologies of democratic exclusion, is that identifying what arrangements count as more rather than less democratic is itself a matter of intense ideological division. If Ely’s two conjectures fail, nothing remains to support the conclusion that judges deserve excess countermajoritarian power, leaving democracy’s shortcomings to be remedied within democratic politics— which is, in turn, the most desirable future of liberal constitutionalism
What’s the Deference? Interpreting the U.S. Sentencing Guidelines After Kisor
Get PDFFor more than three decades, the U.S. Sentencing Guidelines have constrained the punishment doled out by federal judges, limiting discretion that was once nearly unlimited and bringing standardization to the penological decisionmaking process. For twice as long, the Supreme Court has constrained judges in a different way—by requiring that administrative agencies receive deference when they interpret the meaning of their own regulations. At the convergence of these two domains sits “commentary,” or interpretive notes the U.S. Sentencing Commission appends to the otherwise congressionally approved Guidelines. In Stinson v. United States, the Court made clear that commentary should be reviewed and deferred to as an agency’s view of its own regulations. This classification has since rendered numerous examples of commentary, including those that enhance punishment, the last word on what the Guidelines mean and how they should be applied. Recently, however, in Kisor v. Wilkie, the Supreme Court clarified its regulatory deference doctrine, narrowing the circumstances in which it should be applied. This Note examines the historical interplay between federal sentencing and regulatory deference and considers whether, in light of Kisor, deference to commentary is appropriate. Specifically, by analyzing one example of commentary already dividing the circuit courts, this Note contends that Kisor and the rationales underlying the Guidelines and regulatory deference caution against their commingling—particularly where, as here, commentary only adds punishment
The Inequity of Informal Guidance
Get PDFThe coexistence of formal and informal law is a hallmark feature of the U.S. tax system. Congress and the Treasury enact formal law, such as statutes and regulations, while the Internal Revenue Service offers the public informal explanations and summaries, such as taxpayer publications, website frequently asked questions, virtual assistants, and other types of taxpayer guidance. Throughout the COVID-19 pandemic, the IRS increased its use of informal law to help taxpayers understand complex emergency relief rules implemented through the tax system.
In contrast to many other legal scholars who have examined important administrative law issues regarding informal tax guidance, in this Article, we reframe the topic as a social justice issue. We argue that the two tiers of formal and informal law in the U.S. tax system systematically disadvantage taxpayers who lack access to sophisticated advisors. This imbalance occurs irrespective of whether the IRS\u27s informal law contains statements that, if taxpayers followed them, would be taxpayer favorable or unfavorable. When the guidance contains taxpayer-favorable positions, the IRS is not legally bound by these positions and, during an audit, can contradict or ignore them. But when the guidance contains taxpayer-unfriendly positions, taxpayers who rely on them are bound to these interpretations as a practical matter. Worse yet, these taxpayers have almost no protection against tax penalties for incorrect positions that they claim based on the IRS\u27s tax guidance. By contrast, taxpayers who can access and apply the formal sources of tax law, such as the Internal Revenue Code and Treasury Regulations, often through lawyers, are in a significantly better strategic position. They can rely on binding law, they can try to take the most advantageous positions possible, and, if they meet a relatively low bar of reasonableness, they will have penalty protections in doing so.
After highlighting the growing gap between formal and informal tax law, and the resulting systemic inequity it causes, we explore potential policy approaches to address it. We consider reforming the drafting of the formal tax law; changing the drafting of informal tax law to include warnings to taxpayers and cross-references to formal tax law; revising the law regarding taxpayer reliance on informal tax law; and developing IRS research on how reliance on informal tax law varies based on taxpayers\u27 income, filing status, race, and other personal characteristics
Regulating Global Stablecoins: A Model-Law Strategy
Get PDFDigital currencies have the potential to improve the speed and efficiency of the payment system. The principal challenge is retail: to facilitate day-to-day payments among consumers as an alternative to cash, both domestically and across national borders. Two models of digital currencies are becoming viable: central bank digital currencies and nongovernment-issued currencies that are backed by assets having intrinsic value (stablecoins or, when widely used internationally, global stablecoins). Because they are not government issued, global stablecoins present complex and novel cross-border regulatory challenges, including managing the costs of complying with a multitude of national laws and ensuring international legal enforceability. Given the rapid growth of stablecoins, these challenges urgently need legal solutions. Two strategies have been devised for addressing similar challenges: either enact an international treaty or propose a model law for the relevant jurisdictions uniformly to enact as their national law. The Uniform Commercial Code (“UCC”) itself exemplifies such a model law, designed to reduce the high costs of coordinating and complying with different commercial laws in U.S.-interstate domestic transactions. This Article analyzes a model-law strategy to regulate global stablecoins, showing it should be more politically realistic than a treaty approach. The Article also designs, critiques, and proposes possible text for such a model law. The model law should be politically feasible for nations to enact because, as the Article shows, its design and proposed text are generally consistent with the principles and recommendations advanced by the world’s leading central banks and multinational financial organizations for regulating global stablecoins
Executive Capture of Agency Decisionmaking
Get PDFThe scientific credibility of the administrative state is under siege in the United States, risking distressful public health harms and even deaths. This Article addresses one component of this attack-—executive interference in agency scientific decisionmaking. It offers a new conceptual framework, “internalagency capture,” and policy prescription for addressing excessive overreach and interference by the executive branch in the scientific decisionmaking of federal agencies. The Article’s critiques and analysis toggle a timeline that reflects recent history and that urges forward-thinking approaches to respond to executive overreach in agency scientific decisionmaking. Taking the Trump Administration and other presidencies as test cases, it scrutinizes who should control, or alternatively advance or limit, an agency’s scientific decisions, which are distinct from its policymaking decisions. With its “internal agency capture” framework and the COVID-19 pandemic as its backdrop, the Article illustrates the phenomenon of excessive executive overreach at work in the scientific decisionmaking of the U.S. Food and Drug Administration (“FDA”), glaringly reflected in the Agency’s decisions on reproductive medicines and protocols to respond to the pandemic. This Article demonstrates that covert internal capture can mislead the public, pose serious risks to individual and public health, undermine the arm’s-length neutrality and objectivity of agencies, and result in lasting consequences for agency legitimacy and reputation.
The Article considers existing methods to oversee and provide a check on internal agency capture and describes the limitations of these approaches. It offers a novel solution, the creation of a new and independent Scientific Integrity Office, which would address many of these limitations and promote the important values of accountability, credibility, and public trust
Promoting Cost-Effective Grid Modernization
Get PDFRecent legislative reforms enacted in several states grant incumbent utilities a right-of-first-refusal (ROFR) over new electric power transmission lines. Regional grid planners, who typically defer to state law, often avoid running competitive solicitations for regional transmission projects located in these states. As a result, state ROFR laws expose customers to excessive regional transmission costs.
Such state ROFR laws are constitutionally dubious, and ultimately harmful to customers. Customers affected by ROFR laws do not realize the cost savings and other benefits of competition, including superior cost containment and innovative grid modernization solutions. States can promote cost-effective grid modernization by encouraging competitive bidding selection processes for new regional transmission lines, and preserving or enhancing the authority of regulators to balance a broad range of factors in permitting and cost recovery for projects. Regulators commonly use such approaches to evaluate the purchase of power generation from competitive sources, and cost-effective grid modernization could benefit from similar safeguards to protect customers as new regional transmission line projects are approved