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FACULTY PUBLICATIONS AND NEWS FROM THE UNIVERSITY OF PITTSBURGH SCHOOL OF LAW
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Elena Baylis publishes 'Declining Controversial Cases: How Marriage Equality Changed the Paradigm' in the New York University Journal of Law and Public Policy Quorum
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Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality cases as its example. It argues that reputational factors, in addition to legal and political considerations, play a role in determining whether attorneys general will defend their states’ laws when they may have a basis for declining to do so. Moreover, the impact of nondefense goes beyond the directly connected litigation and can have negative ramifications for the public’s perception of the legal system and for the functioning of direct democracy.
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| Professor Jessie Allen has published "Empirical Doctrine" in the Case Western Reserve Law Review, 66 CAS. WES. L. REV. 1 (2015). Allen explores how we can observe and measure how legal decision makers use formal legal authorities, but there is no way to empirically test the determinative capacity of legal doctrine itself. Yet, discussions of empirical studies of judicial behavior sometimes conflate judges’ attention to legal rules with legal rules determining outcomes. Doctrinal determinacy is not the same thing as legal predictability. The extent to which legal outcomes are predictable in given contexts is surely testable empirically. But the idea that doctrine’s capacity to produce or limit those outcomes can be measured empirically is fundamentally misguided. The problem is that to measure doctrinal determinacy, we would have to adopt standards of legal correctness that violate fundamental conceptual and normative aspects of the legal institution we wish to study. In practice the promise of empirical data on doctrinal determinacy makes it seem less urgent to investigate other contributions doctrinal reasoning makes to law. Doctrinal reasoning might affect decision makers in ways that contribute importantly to legal process without determining outcomes. Trying to understand those effects is a research project to which the empirical methods of social science have much to contribute.
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| Professor Deborah Brake’s article, “Unprotected Sex: The Pregnancy Discrimination Act at 35," 21 DUKE J. GENDER L. & POL'Y 67 (2013) (with Joanna L. Grossman) was recently cited in a decision by the Iowa Supreme Court. The case, McQuistion v. City of Clinton, No. 14-0413, 2015 Iowa Sup. LEXIS 104 (Dec. 24, 2015), involved a claim of pregnancy discrimination under the Iowa Civil Rights Act. Additionally "Unprotected Sex: The Pregnancy Discrimination Act at 35" has been published in its entirety in the 2015 edition of Women and the Law (Thomson Reuters). This anthology selects “the leading legal scholarship on women’s rights from the past year.”
Professor Struycken notes, in particular, Brand’s coverage of US and EU laws on consumer protection, stating that “[t]he Hague Conference and EU negotiators on consumers’ protection in private international law should carefully take note of Professor Brand’s observations.” He concludes the review by stating, “In short, Professor Brand’s lectures deserve wide and thorough study, particularly in the Hague Conference, and not only there.”
Professor Mary Crossley’s co-authored article, “Tax-Exempt Hospitals and Community Health Under the Affordable Health Care Act: Identifying and Addressing Unmet Legal Needs as Social Determinants of Health,” has been published in Public Health Reports.
Crossley wrote the article with Elizabeth Tobin-Tyler (Brown) and Jennifer Herbst (Quinnipiac). The article reviews recently promulgated Internal Revenue Service regulations for nonprofit hospitals seeking tax exemption and a new estimate of national hospital community benefit spending, and analyzes how they point to the value of hospitals working with community partners to address the social determinants of health. It then explains how unmet legal needs function as health determinants, and suggests how hospitals’ participation in medical-legal partnerships can address those needs.
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The article explains that because long-term care is very expensive, many have thought that long-term care insurance was an appropriate solution. Frolik argues that long-term care insurance has inherent flaws that account for its low acceptance rate. It is subject to moral hazard, adverse selection and too low lapse rates that make it overly costly for most potential purchasers. It also offers little value to single elderly unless they have a compelling reason to try to protect the value of their estate. Even for married couples, long-term care insurance is attractive for only a small minority in light of the potential of qualifying for Medicaid reimbursement of the cost of a nursing home. If long-term care insurance is to be effective, it must be mandated as it is in several other countries. In the article, Frolik points out that settlors are increasingly naming trust protectors because of the perceived need to amend the trust in light of changing laws and changing circumstances. Trust protectors are also often used for trusts with beneficiaries who have intellectual disabilities that may prevent such beneficiaries from monitoring and enforcing their beneficial interests in the trust. The article discusses the issues arising from the selection of the protector, the powers granted to the protector and the standard of duty required of the protector. The article also reviews the current statutory basis of protectors and analyzes the few existing cases that have considered the legal status and role of a trust protector. Professor Anthony Infanti served as the principal drafter of the American Bar Association’s Tax Section’s comments on recently proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court decisions in the Windsor and Obergefell cases. Most importantly, these comments strongly urge the Internal Revenue Service to reverse its current position denying legal recognition to domestic partnerships, civil unions, and other marriage alternatives. Instead, the comments urge the IRS to legally recognize these relationships for federal tax purposes. Professor Anthony Infanti co-authored an article with Bridget Crawford, “A Critical Research Agenda for Wills, Trusts, and Estates,” 49 REAL PROP. TR. & EST. J. 317 (2014), which was recently reviewed on JOTWELL. In her review, Camille Davidson called the article “a ‘must read’ for wills, trusts, and estates practitioners and scholars.”
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| | Pitt Law Dean William M. Carter Jr. Serves as Commentator at Georgetown University Law Center's Salmon P. Chase Colloquium, "Celebrating the Sesquicentennial of the Thirteen Amendment"
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Other participants included Randy Barnett (Georgetown Law School), Pamela Brandwein, (University of Michigan, Political Science), Eric Foner (Columbia University, History), Kurt Lash (Illinois Law), Jennifer Mason McAward (Notre Dame Law School), Larry Solum (Georgetown Law School), Lea Vandervelde (Iowa Law School), and Michael Vorenberg (Brown University, History). Carter also spoke on the eve of the sesquicentennial commemoration of the 13th Amendment at the Senator John Heinz History Center in Pittsburgh at a symposium to discuss and deliberate the importance of the 13th Amendment in collaboration with the Center for Africanamerican Urban Studies and the Economy (CAUSE) of Carnegie Mellon University and the University of Pittsburgh.
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Professor Jessie Allen spoke at the the American Association of Law Schools (AALS) annual meeting in New York on Jan. 8, 2016. Her presentation, “Doctrine, Form & Discipline,” was part of an AALS Crosscutting panel, “Reforming Law and Scholarship by Disciplinary Design.” Allen also participated in the third Adelaide Blackstone Symposium, Blackstone and His Critics, held at the University of Adelaide in conjunction with the Australian and New Zealand Law and History Society Conference. At the conference she presented her paper, “Blackstone: Expositor and Censor of Law both Made and Found,” and chaired another session. Professor Deborah Brake was an invited speaker at the American Association of Law Schools (AALS) annual conference held in New York City, Jan. 7-10, 2016. Brake was a senior commentator for the panel, “New and Emerging Voices in Workplace Law,” co-sponsored by the Section on Employment Discrimination and the Section on Labor Relations and Employment Law. She commented on the paper, “Reconstructing Pregnancy,” by Sarudzayi Matambanadzo of Tulane Law School. Professor Ronald Brand spoke on “Arbitration or Litigation? Party Choice as a Political Matter,” at the Penn State Yearbook on Arbitration and Mediation Conference Jan. 29, 2016. Professor Brand’s talk was the lead presentation in a day-long program. The papers from the program will be published in the Yearbook as a symposium issue. Professor Mary Crossley was the featured guest on The Week in Health Law, a weekly podcast exploring the most pressing issues in health law and policy. She spoke on hospitals’ obligations under the Affordable Care Act to consider and respond to the health needs of their communities and how this obligation might help address health disparities and raise quality. The Week in Health Law can be subscribed to via iTunes. Professor Vivian Curran gave a presentation Dec. 4, 2015 at Carnegie Mellon University at a book launch for Christopher Warren’s Literature and the Law of Nations: 1580-1680. Professor Lawrence Frolik delivered the Edward J. Kelly Memorial Lecture on Elder Law, on Feb. 26, 2016 at Notre Dame Law School. Frolik's talk, entitled "Loving and Loathing the Elderly," focuses on how societal attitudes towards the elderly affect legal and programmatic responses to the needs of older Americans. This is the fourth lecture in the series. Past speakers included Hendrik Hartog (Princeton University, Department of History) on "Someday All This Will be Yours: A History of Inheritance and Old Age", Robert Sitkoff (Harvard Law School) on the freedom of disposition in trusts and estates, and Linda Waite (University of Chicago, Department of Sociology) on rethinking how we think about health at older ages for the US population. Frolik also spoke on Jan. 13, 2016, at the 50th Annual Heckerling Institute on Estate Planning held in Orlando, Florida. He addressed the topic, “Sophisticated Special Needs Trust Drafting and Administration.” The Heckerling Institute is the nation’s premier estate planning meeting, attracting over 3,200 attendees to the 5-day event. This term refers to a practice by which plaintiffs whose real target is an out-of-state corporation seek to keep their cases in state court by adding insubstantial or even frivolous claims against an in-state defendant. Joinder of the in-state defendant destroys “complete diversity” and makes the case non-removable to federal court. Hellman described pending legislation to address the problem and suggested alternative measures that would better balance the plaintiff’s right to shape his case as he sees fit and the out-of-state defendant’s right to the federal forum that he would be entitled to if sued alone. Hellman’s presentation drew upon a statement he recently submitted to the House Judiciary Committee. The statement is available on the Committee website. Professor Anthony Infanti presented a talk on “Marriage Equality Through the Prism of the Tax Laws” at the Allegheny County Bar Association (ACBA) on Dec. 11, 2015. The talk was co-sponsored by the ACBA’s Tax Section and LGBT Rights Committee. The other talk, entitled “Transnational Class Actions in United States Courts,” posited that recent changes in the American legal landscape enhance the risk that transnational class actions in U.S. courts will fail to achieve the goals of compensation, deterrence, and enforcement of the law. Professors from Oxford University, Tel Aviv University, the University of Leuven (Belgium), Konstanz University (Germany), City University of Hong Kong, the University of Haifa, the University of Texas, and UC Hastings College of Law presented at the conference, as did prominent class action practitioners. Former Chief Justice of the Israeli Supreme Court, Asher Grunis, gave the keynote address.
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Professor Arthur Hellman Comments to National Law Journal on Prospects for Ninth Circuit Split
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Hellman noted that plans to split the circuit since the early 1990s faced opposition from California lawmakers, Ninth Circuit judges and state bar officials. He said that supporters of a smaller Ninth Circuit faced slightly better odds now that Republicans control both houses of Congress, but he still thought the bill was “a very long shot.” “I thought that issue had just died a natural death, but I guess it never does,” Hellman said. “It disappears for a while and then there it is again.”
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