Common Law Decision-Making, Constitutional Shadows, and the Value of Consistency: The Jurisprudence of William F. Batchelder

[Excerpt] “This is an essay about common law decision-making, with an emphasis on the value of consistency as it relates to claims about the legitimacy of judicial lawmaking. The legitimacy of judicial lawmaking is ever an issue, particularly, of course, in the cases at the margins—those instances in which precedent points the court in no obviously correct direction, a choice must be made between plausible alternative paths, and “a decision one way or the other,” as Benjamin Cardozo observed, “will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law.”

Escaping the Shadow of Malpractice Law

Abinovich-Einy addresses several constituencies operating at the meeting point of alternative dispute resolution (ADR), communication theory, healthcare policy, and medical-malpractice doctrine. From an ADR perspective, the need for, and barriers to, addressing non-litigable disputes, for which the alternative route is the only one, is explored. It is shown that ADR mechanisms may not take root when introduced into an environment that is resistant to collaborative and open discourse without additional incentives and measures being adopted

Escaping the Shadow of Malpractice Law

Abinovich-Einy addresses several constituencies operating at the meeting point of alternative dispute resolution (ADR), communication theory, healthcare policy, and medical-malpractice doctrine. From an ADR perspective, the need for, and barriers to, addressing non-litigable disputes, for which the alternative route is the only one, is explored. It is shown that ADR mechanisms may not take root when introduced into an environment that is resistant to collaborative and open discourse without additional incentives and measures being adopted

The Total Takings Myth

For almost thirty-five years, the U.S. Supreme Court has attempted to carve out a total takings doctrine within its regulatory takings jurisprudence. Most regulatory takings claims are evaluated under the “ad hoc” threefactor test first articulated in Penn Central Transportation Co. v. City of New York. Exceedingly few of these claims are successful. But the Court has identified certain categories of government actions that are compensable takings per se, otherwise known as total takings. This began in 1982 with Loretto v. Teleprompter Manhattan CATV Corp., where the Court held that a land use ordinance requiring a landowner to endure a permanent physical occupation of a portion of her property is always a compensable taking. Ten years later, in Lucas v. South Carolina Coastal Council, the Court held that a land use restriction depriving an owner of all economically viable use of her property is also compensable per se. Finally, in 2015, in Horne v. Department of Agriculture, the Court extended its total takings jurisprudence to personal property, announcing that the government appropriation of personal property is a per se compensable taking. Although the Court has had more than three decades to articulate theoretical justifications for its total takings jurisprudence and to provide guidance for lower courts in determining when a regulation constitutes a total taking, it has failed to do so. This failure reflects the underlying reality that the total takings doctrine is a myth. More particularly, the categories that the Court has identified as constituting total takings are analytically incoherent, and the terms the Court has used to demarcate total takings from regulations that are not per se compensable cannot be applied in the real world. As a result, lower courts struggle to apply the total takings doctrine and the case law remains in utter disarray. In fact, lower courts have resorted to creating “shadow” total takings doctrines that rely on obvious distortions of the plain meaning of outcome-determinative terms and deflect attention from the fundamental question of whether compensation is warranted. This Article argues that the Court’s attempt to create a total takings doctrine has failed, and that the Court should repudiate it. It demonstrates that the Court’s initial total takings opinions were conceptually incoherent and woefully undertheorized. And it shows that attempts by lower courts to rehabilitate the doctrine by crystallizing the bright-line rules through careful and consistent application were doomed to, and did, fail. This Article also explains why the entire enterprise was misguided from the start. Although bright-line rules have their place, it is not in the heart of regulatory takings doctrine, which is premised on concerns for fairness and justice in distributing the burdens of land use regulation. Last term, the Court had a perfect opportunity to begin the process of repudiating the total takings myth. Murr v. Wisconsin was a run-of-the-mill regulatory takings case masquerading as a Lucas-type total takings claim, and it presented the Court with a vehicle to either remedy the central doctrinal incoherence of Lucas’s bright-line rule or to overrule Lucas and turn its attention to the much needed task of clarifying and refining the Penn Central test. Instead, by offering a new multifactored test in a sort of regulatory takings “step zero,” the Court in Murr merely exacerbated the core flaws of the Lucas bright-line rule. Now, more than ever, it is imperative that the Court recognize and begin to dismantle the total takings myth

The Interlegality of Transnational Private Law

This article describes transnational private law as a decentralized and intermediate form of transnational governance that recognizes and manages the multiplicity of norms generated by plural normative systems in our contemporary world society. These include international and municipal state systems, nonstate social systems, and private ordering by parties. Consistent with an approach that views globalization as changing the nature of the sovereignty of states, the article draws on the rich tradition of private law, considered with its international dimensions, to find both a concrete example of and a model for understanding the complex role of the state in the plural normative orders of the “postnational constellation.” In this task, this article views private law understood in its international context as exemplary of an intermediate level of transnational governance

Recrafting a Trojan Horse: Thoughts on Workplace Governance in Light of Recent British Labor law Developments

In June of 2000, Britain established a statutory union recognition procedure applicable to all private and public employers with more than twenty workers.For a country with a history of voluntarism in labor-management relations, the creation of a legal mechanism by which unions could compel recognition from employers was a major change. The Labour Party government modeled its new approach to a considerable extent on our National Labor Relations Act (NLRA).3 Unions seeking statutory recognition must apply through a government agency; disagreements over proposed unit size or scope are to be resolved early by the agency; the union must show majority support to succeed; this support can be demonstrated through nonelectoral means but upon agency review a supervised election may be ordered; and any such election is preceded by a campaign period of several weeks during which rules against employer threats and intimidation are enforced by the agency. In addition, paralleling a philosophy ascribed to our Taft-Hartley Amendments, Britain\u27s new recognition procedure reflects a commitment to employee freedom of choice. Workers may decide either to join a union that seeks legal recognition or to refrain from doing so. The public policy value attached to having union recognition and collective bargaining enforced through a government agency derives primarily from that arrangement being freely chosen by the employees, not from the preferred status of collective bargaining. Domestic criticism of the NLRA has persisted with some intensity since the early 1980s. Union leaders and many labor relations scholars in the United States believe that the statute as written and enforced has played an important role in the steady decline of union organizing and collective bargaining among private sector employees. British union leadership, aware of such widespread misgivings, had reason to fear the arrival of this gift from across the Atlantic The concern was that an American-style union recognition system, based on adversarial representation campaigns and government-supervised elections, would invite if not encourage many of the same problems of excessive delay, employer abuse, and protracted and bitter litigation that have become entrenched under the NLRA. The British statutory procedure is now in its seventh year of operation, and American-style problems have yet to materialize on any substantial scale. Although the number of employees organized through statutory recognition awards has been lower than anticipated, there has been a surge in voluntary recognition agreements negotiated in the shadow of the law. Further, the statutory procedure itself seems to have been well received by both labor and management, with only eight instances of judicial review sought for the first 600 agency determinations. It remains early in the life of this new approach-NLRA implementation in its seventh year (1941) hardly resembled or even foreshadowed the changed legal circumstances that emerged in ensuing years and decades. Further, there are culture-specific factors involved in British experience with workplace governance that caution against easy transplantation, even as concepts borrowed from the NLRA are likely to evolve very differently in British legal soil. Still, initial developments under this recognition procedure may offer some guidance as we contemplate ways to reinvent our own statutory approach to labor-management relations. This article briefly addresses two aspects of the new British procedure, with an eye toward what they might contribute in the American setting. Part I discusses the multi-stage recognition arrangement, and why it has stimulated both sides to seek voluntary recognition agreements at various points. Part II examines the Central Arbitration Committee (CAC), the agency that administers and enforces the statute, focusing on how the CAC\u27s decisionmaking framework and its method of appointment have contributed to an efficient and non-partisan adjudication process. In each part, the article suggests ways in which elements of the British experience might relate to the American context. A threshold question is whether to bother with such an inquiry as part of a symposium addressing the future of governing the workplace. Both the United States and Britain have experienced a steady erosion in union membership since the 1970s, and there is reason to believe that union density may continue to decline, especially in the private sector. Given that collective bargaining agreements have been supplanted by statutes and regulations as the principal source of employee protections in the United States, why discuss ways to promote or preserve such collective agreements when examining possible new directions for workplace governance? Paul Weiler wrestled with this question nearly two decades ago, and as in so many other respects he was ahead of his time. Professor Weiler recognized that collective bargaining was unlikely to regain its former position of pre-eminence for reasons that went well beyond the inadequacies of the NLRA legal regime. He pointed unflinchingly to American workers\u27 general perception of the labor market as delivering decent wages and employment conditions under a loosely competitive structure, and to workers\u27 general reluctance to embrace traditionally hierarchical union organizations as an alternative to individual bargaining with their employers.9 At the same time, Weiler made a powerful case for why the nonunion labor market operates to distort workers\u27 perceptions and expectations regarding the economic advantages associated with their jobs.\u270 Absent some form of ongoing workplace representation, employees often are denied benefits in a market-oriented system. They also are left unable to remedy employer misconduct much of the time in a rights-based regime. Weiler\u27s proposed solution included a different kind of employee participatory mechanism-mandated by statute at the workplacespecific level and charged with addressing a range of distributional decisions inside the firm. 2 Political realities in the United States may well preclude such a distinctive statutory approach, although a version of Weiler\u27s proposal has been developing in Britain with assistance from the European Community. 3 Meanwhile, labor organizations authorized to speak for employees as a group remain relevant in the American setting for the economic and participatory reasons Weiler elegantly recounted. Accordingly, for present purposes I accept that unions should and will continue to play a role in overcoming certain market-based barriers to improved working conditions, in monitoring the effective delivery of statutory rights, and in offering employees a meaningful voice to address their employer\u27s resource allocation policies. I further assume (with guarded optimism) that incremental reform of our labor law statute may become possible within the foreseeable future. Against this background, I focus on two aspects of Britain\u27s recent statutory experience with union recognition that warrant attention when considering revisions to our own statutory scheme

The Institutionalist Implications of an Odious Debt Doctrine

Sovereigns incur debts, and creditors look to the law to hold sovereigns to their obligations. In legal terms, the question is whether to recognize and define an odious debt defense through a treaty or national legislative acts, on the one hand, or through the decisions of authoritative dispute-settlement bodies, whether international arbitral organs or domestic courts. Moreover, others may think that odious debt doctrine as a means can optimize the social welfare generated by sovereign-debt contracts. Here, Stephan examines the social welfare in the economic sense but attacks the problem from a different direction and concludes that no satisfactory mechanism exists for instituting an odious debt doctrine

The Challenges of Globalization: The Strategic Role of Local Managers in Japanese-Owned U.S. Subsidiaries

[Excerpt] After spending billions of dollars moving manufacturing plants to all corners of the world, and endowing numerous programs in Japanology in the world\u27s best institutions of learning, Japanese companies have just uncovered a disconcerting truth: their competitors do not love them. Winning in global competition and being popular are clearly two different things