Faculty Colloquia

Your House is Worth More Than They Think: The Strange Case of Property Tax Assessment Regressivity

"In the last few years, researchers have revealed something shocking about the property tax, the mainstay of local governmental finance. In virtually all jurisdictions in the country, expensive homes are undervalued by property tax assessors – and hence under-taxed – while less expensive homes are over-valued and over-taxed. Put another way, one of the major methods of taxation in America is premised on a consistently-told lie that the rich are less rich than they actually are, and that the less-well off are better off than they actually are. To give it name, there is almost universal Property Tax Assessment Regressivity, or PTAR. "

Outcome Reasons and Process Reasons in Normative Constitutional Theory

Fundamental questions regarding the constitutional order in the United States are much discussed and disputed. For example, there is a longstanding debate between originalists and living constitutionalists; both are challenged by the opponents of judicial review. Just mapping the landscape of contemporary normative constitutional theory is a daunting task. There are so many theories: the list might start with common law constitutionalism, constitutional pluralism, and the moral readings approach, but then there is contemporary ratification theory and public meaning originalism—not to mention representation reinforcement theory and the more radical view that Congress should have the final say on all matters constitutional. And that is just the beginning of a much longer list.

Book: The People’s Champ: Legal Aid from Slavery to Mass Incarceration Chapter 8: Social Engineers on a Grand Scale?: Federally-Funded Legal Aid and the Civil Rights Movement

Chapter 8, which I’ve circulated, focuses on the legislatively created and executive endorsed War on Poverty. I zoom in on the Legal Services Program (LSP), which was part of this initiative. LSP pumped over 2,000 attorneys and millions of dollars into poor communities. I describe how federal dollars earmarked for poverty were deployed by advocates to advance racial justice agendas—specifically the enforcement of newly-minted civil rights statutes (e.g., the Civil Rights Act of 1964, Fair Housing Act) and the leveraging of Warren Court interpretations of previously dormant statutory and constitutional provisions (e.g., Section 1983, the Equal Protection Clause). This story differs from traditional civil rights narratives that focus on mainstream organizations (e.g., NAACP and the ACLU) to the neglect of federally funded legal services and poverty law scholarship that is sometimes less specific about the racial implications of public interest lawyering during this period.

TO SAVE DEMOCRACY FROM JURISTOCRACY: J.B. THAYER AND CONGRESSIONAL POWER AFTER THE CIVIL WAR

As many Americans once again worry that their democracy is hostage to judicial power, this Article is an archival reconstruction of how famed Harvard law professor James Bradley Thayer set out on a mission to stave off the syndrome before it stuck — though he failed in the end.

The Article shows how Thayer (1831-1902) arrived at his epochmaking theory of judicial deference to safeguard Congress’s power after democratic revolutions of the Civil War and Reconstruction. Indeed, he hoped to see America transformed in the direction of British legislative supremacy, in which Parliament — and not the courts — reigned supreme. Scandalized by growing ventures to weaponize the federal judiciary so as to preempt the newly federalized American democracy, Thayer bet on something new in global history: mass democracy on a national scale, understood as an experiment in collective learning. The Article thereby provides a new periodization and transatlantic contextualization of the struggles over judicial fiat routinely associated the Supreme Court’s defense of laissez-faire in the early twentieth century.

And yet, as this Article emphasizes, Thayer failed in the long run. His democratizing fix, judicial self-restraint under the “clear error standard” — which this Article shows had the same English roots as his democratic and parliamentary theory — has tragically misled reform. It embroiled Americans in a neverending debate on judicial “restraint,” even as Thayer proposed a doctrinal prescription encouraging judges to limit their power themselves. He therefore postponed an institutional remedy for an institutional syndrome. For this reason, his mission, in spite of its partial implementation after his death, now has to be rescued in its own right. Judicial self-restraint has not prevented the continuation and even the intensification of the very juristocratic syndrome Thayer rightly found so troubling. If Americans still remain with him at the dawn of our commitment to democracy, they will have to save it from judges in a new way all their own

Bartenwerfer v. Buckley and Coerced Debt

In Bartenwerfer v. Buckley, the Supreme Court held that Mrs. Kate Bartenwerfer could be denied the discharge of a debt under Section 523(a)(2) of the Bankruptcy Code on the basis of fraud that her partner and husband, Mr. David Bartenwerfer, committed in selling a house that he remodeled and both spouses owned. Partnership was key to the decision; the Court embraced a Nineteenth Century precedent holding that the fraud of one partner prevented an innocent partner from discharging the debt. And the concurrence explicitly stated that the decision is limited to partners, defined using principals of agency law. Because the Bartenwerfers were both martial and business partners, a key question is which type of partnership is relevant. Fortunately for debtors with liabilities created by domestic violence, the Supreme Court characterized the Bartenwerfers as “business partners,” and caselaw under the precedent Bartenwerfer embraced largely limits partnership-imputed denials of discharge to business partnerships. Thus, much coerced debt – debt created by an abusive partner using fraud or coercion – should not be subject to denial of discharge under Bartenwerfer, because most coerced debt appears to be consumer debt. Unfortunately, in both the case law and our data, marital and business debt are not mutually exclusive. This manuscript uses data from the first in-depth study of coerced debt to argue that bankruptcy is an important avenue for relief from coerced debt, and that while Bartenwerfer is unlikely to broadly limit the discharge of coerced debt, it still may have negative effects on a narrower band of cases.

UNLOCKING LEX TALIONIS Critics argue that judgments about the “proportionality” of punishment are inherently subject to discretionary bias, impossible to operationalize, and unable to provide a meaningful critique of American Mass Incarceration. In this paper, I attempt to operationalize the classical retributive formulation of proportionality—Lex Talionis, or “an eye for an eye,” which is widely regarded as barbarically punitive. I do so in conjunction with a conservative set of assumptions that should be biased against my conclusions, to give some rough estimates of what it might in fact entail as a limit on the severity of permissible punishment. I argue that Lex Talionis would in fact demand a radically lenient transformation of the criminal legal systems of the United States (and many other countries), reducing incarceration for non-homicide offenses by at least an order of magnitude. One might still reject Lex Talionis, but not because it is barbarically punitive. Indeed, if I am right about what it entails, many skeptics will likely think that it is not punitive enough.

HOW DID CORPORATIONS GET STUCK IN POLITICS AND CAN THEY ESCAPE? Corporations have always been involved in politics, but today is different. They are publicly taking positions, either directly or indirectly, on contested political and social issues unrelated to their businesses. In contrast to the conventional wisdom, we argue that this practice, which we term “corporate political posturing,” is problematic. First, it is of dubious value to the corporation and its stakeholders. Corporate political posturing often backfires, it does so unpredictably and potentially catastrophically, and it is particularly susceptible to agency costs. Second, it is harmful to society. The fundamental problem is that corporations are institutionally ill-equipped to take center stage in policy debates. They are inherently self-interested economic actors with goals that often conflict with those of society. This manifests in statements that tend to polarize rather than enlighten and actions that undermine the positions that they back publicly.

Clear Statement Rules in Administrative Law In Sackett v. EPA, the Supreme Court took up for the fourth time the elusive meaning of the term “waters of the United States” in the Clean Water Act. The phrase was important because it determined the scope of the authority of the United States Army Corps of Engineers (COE) and the Environmental Protection Agency (EPA) to prevent the destruction of the wetlands that are critical to preserving and enhancing surface water quality in the United States. The Clean Water Act prohibits “the discharge of any pollutant” into “navigable waters,” which are in turn defined to be the “waters of the United States.” But discharges are permissible if done pursuant to a permit issued by CoE or EPA, depending on the nature of the discharge. Because obtaining permits can be time-consuming and expensive, land developers would prefer to avoid the permit process. They have therefore pursued a narrow definition of WOTUS that would largely exclude activities that affect wetlands from the permit requirement. Michael and Chantell Sackett, private landowners who wanted to build a home near Priest Lake in Bonner County, Idaho, forced the issue when in 2004, they began backfilling their property with dirt and rocks. That precipitated a letter from EPA informing them that their actions violated the Clean Water Act, because they were filling protected wetlands. EPA warned that if the Sacketts did not cease their filling activities and come up with a restoration plan, they would be subject to civil and criminal penalties.

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