Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.
- “The Tax-Invisible Labor Problem: Care, Work, Kinship, and Income Security Programs in the IRC” 102 B.U. L. Rev. (2022, forthcoming) by NYAMAGAGA GONDWE, UW Law School
Since the mid-1990s, American financial assistance programs have increasingly shifted to require evidence of labor market participation as a criteria for eligibility. This shift signals a change from previous welfare programs that were distributed principally based on unmet material need. The shift from need-based to income-tested income security programs has been lauded for increasing labor force participation. But in this shift, income security programs have failed to account for the labor of non-market care workers. These care workers, whose household production is a fundamental component of market life, experience both economic insolvency and tax-invisibility in the face of assistance systems that do not recognize care work as eligible labor. Because care work disproportionately falls to women in American homes, income-tested financial assistance programs place an outsized strain women’s economic lives. In this Article, I argue that income security programs that fail to recognize non-market care labor undermine women’s economic autonomy by constraining women’s personal labor choices. I propose that if financial assistance programs continue to require evidence of labor, then those programs should account for non-market labor as having equal status with market-based labor. Policymakers can use time-use surveys that record women’s time spent on household production as a way to recognize household production labor in administering tax-based income security programs.
- “The Future of Civil Society Research in China, Hong Kong and Vietnam” Univ. Wis. Legal Studies Research Paper No. 1756 (2022) by MARK SIDEL, UW Law School
I have worked on civil society research, particularly on nonprofit–state relations and philanthropic issues in China and Vietnam for several decades. More recently I have been closely following the situation in Hong Kong after China took draconian steps to control Hong Kong in mid-2020,especially through the enactment and enforcement of the National Security Law applicable to Hong Kong. I have long followed the work of civil society researchers in China, Hong Kong and Vietnam, and collaborated with some of those impressive scholars. And I have long been concerned about the future of research in this important field in those jurisdictions. Let me discuss each of these areas in turn, with a focus on: • Key ideas, main debates, significant relevant publications and unresolved issues. • Observations about changes in civil society in over the past years with expectations for the period to come. • Suggestions about the content of a future civil society research agenda.
- “Modified Textualism in Wisconsin: A Case Study” 2022 Wis. L. Rev. 1087 (2022) by ANUJ C. DESAI, UW Law School
State ex rel. Kalal v. Circuit Court for Dane County sets forth a controlling two-step framework for interpreting Wisconsin statutes. Under Kalal, the first step is to start with a statute’s text and apply linguistic tools of analysis (Step One). If the meaning of the statute is clear at this first step, that is the end of the inquiry. Only if the language of the statutory text is ambiguous is a court to go to step two and turn to “extrinsic sources of interpretation, such as legislative history” (Step Two).
Kalal has been one of the most influential cases in Wisconsin history. Its two-step process is so embedded in Wisconsin courts that it has been cited in published Wisconsin appellate decisions more than 1,200 times, on average once every six days, since it was decided eighteen years ago.
Kalal was one of several examples used by Professor Abbe Gluck over a decade ago to show that, despite ideological differences, state courts have settled into a “methodological consensus” about a form of “modified textualism” for statutory interpretation. As Professor Gluck recognized though, “a consensus on interpretive methodology cannot entirely eliminate normative disputes in statutory interpretation cases.” That much is certainly true. Courts do not just apply linguistic algorithms. So, a methodology’s test cannot be simply whether it eliminates the role of judgment in judging (although one factor might be how much discretion it allows). No methodology can do that. Instead, the test—or at least, one test—of an interpretive methodology ought to be whether it illuminates, rather than obscures, a court’s actual levers of decision. I use a high-profile case involving ideological (and, arguably, methodological) differences among the Wisconsin Supreme Court Justices, Wisconsin Carry v. City of Madison, to explore the question of how well Kalal helps us understand the true nature of the dispute in statutory interpretation cases.
- “Beyond Perfect- Reforming the Economic Analysis of Public Policy” Univ. Wis. Legal Studies Research Paper No. 1758 (2022) by NEIL K. KOMESAR, UW Law School
It is impossible to effectively analyze public policy without considering the decision-making processes that will define and implement public policy and, more importantly, the choice of which of these decision-makers will decide what issues. Or so I have argued for over 50 years. I have referred to these decision-making processes– such as markets, political processes and courts– as institutions and the choice between them as institutional choice.
I have used economic analysis to create an approach to institutional behavior for use within a comparative institutional analysis of public policy. But I have not turned to a critical examination of the existing economic analysis of public policy itself. I will here.
Focusing on the behavior of decision-making processes, especially the market, is second nature to those who use economics to understand law and public policy. The notion of market malfunction is the core of welfare economics as well as institutional economics and behavioral economics. Yet these economic analyses suffer from a problem that haunts all forms of analysis of public policy: single institutional analysis– the notion that showing that a given institutional alternative is highly defective tells us much of value for the analysis of public policy. Analyzing institutional choice by focusing solely on the characteristics of only one alternative is an empty exercise. Like the real market, real nonmarket alternatives are a long way from perfect. Moreover, these institutional imperfections are correlated. Where one alternative is at its worst, it is likely that the others will also be at their worst.
The first sections of the paper examine these parallel imperfections and seek a mode of understanding institutional behavior in the political process, the adjudicative process and the market that works for comparative institutional analysis. Armed with this analytical framework, the next sections show the parallel nature of institutional behavior and malfunction in the context of externalities and public goods and, in turn, use the issue of consumer protection to examine rent seeking in both the political process and market settings and to show how the dynamics of participation cast doubt on the rent-seeking theories about waste in political process decision-making. The closing section shows how the dynamics of participation and comparative institutional analysis impact basic constructs, such as resource allocation efficiency, and established approaches to economics such as welfare, institutional and behavioral economics.
- “Chapter Eight- Technology and the Law: The Automobile (by James Willard Hurst, Edited by BJ Ard & William J. Novak)” 2022 Wis. L. Rev. 463 (2022) by JAMES WILLARD HURST, UW Law School (deceased), BJ ARD, UW Law School, and William J. Novak, University of Michigan Law School
In this chapter we are going to talk about some of the effects that the automobile has had upon the law and some of the effects that the law had upon the automobile. We could undoubtedly open up some worthwhile lines of thought if we talked about the automobile in relation to certain broader problems of which it is a part: for example, the effects of the internal combustion engine or the growth of all types of communication. But we shall have enough on our hands if we stick to the automobile, and even so in the limits of this chapter we can discuss at any length only the relation of the law and the passenger car. This is not merely an arbitrary limitation, however. Of the 32 million registered motor vehicles in the United States in 1940, substantially over 27 million were passenger cars, and a little under four and one-half million were motor trucks. Until the middle 1920s the proportion of trucks to passenger cars was much lower than this. Not only was the passenger car the center of the auto problem as a matter of gross figures; it was likewise the main aspect of the problem that men saw and reacted to. We may properly focus on it when we try to retrace the unplanned paths of the law’s responses to the motor vehicle.
- “Foreword: Willard Hurst’s Unpublished Manuscript on Law, Technology, and Regulation” 2022 Wis. L. Rev. 443 (2022) by BJ ARD, UW Law School, and William J. Novak, University of Michigan Law School
It is with a great deal of excitement (and with thanks to so many contributing colleagues and collaborators over the years) that we are able to present to the public for the first time a newly published work by one of the great originators of modern legal history and law and society scholarship—James Willard Hurst. Hurst published his last two books, Law and Markets in United States History and Dealing with Statutes, in 1982. And, fittingly, he published his last substantive article—a very short comment on “The Use of Case Histories”—in the Wisconsin Law Review in 1992. In the latter, Hurst took one final parting shot at traditional legal scholarship focused on “tales of conspicuous political or constitutional controversies” as well as conventional legal histories that “tell only of great events and star actors.” As a pioneer of both the “Wisconsin school” of law and society and the Wisconsin monographic tradition in legal history research, Hurst’s interests were different. He aimed instead at the larger questions and the deeper causation reflected in the analytical categories that pervaded his mature work: sequence and context, particularity and generality, structures and functions, values and interests, and drift and direction.
That complex and comprehensive approach to the study of law in society is already apparent in the manuscript published here for the first time: “Technology and the Law: The Automobile.” In a document that we believe is among Hurst’s earliest substantive histories (and now over seventy years old), we can see the very beginnings of the distinctive approach to legal studies that would shape legal history and law and society for generations to come. With slight stylistic and typographical changes, we present the manuscript as we found it—as a complete and carefully hand-edited final document with endnotes in the bibliographic style that Hurst utilized early in his career. This manuscript was clearly intended and finalized by Hurst for ultimate publication, and it has been our goal to make good on that original promise. Though we could have simply archived or digitized the document at several points along the way, we were determined to see it through to publication so a new generation of students and scholars might be freshly exposed to the power of Hurst’s uniquely ambitious scholarly project in the law. After first saying a bit about the original discovery of this particular document, we close this foreword with some observations about what we see as its continued relevance today. But, for the most part, we are simply eager to have Hurst’s words speak for themselves again after all these years.
- “Structuring Techlaw” 34 Harv. J. L. & Tech. 347 (2021) by BJ ARD, UW Law School, and Rebecca Crootof, University of Richmond School of Law
Technological breakthroughs challenge core legal assumptions and generate regulatory debates. Practitioners and scholars usually tackle these questions by examining the impacts of a particular technology within conventional legal subjects — say, by considering how drones should be regulated under privacy law, property law, or the law of armed conflict. While individually useful, these siloed analyses mask the repetitive nature of the underlying questions and necessitate the regular reinvention of the regulatory wheel. An overarching framework — one which can be employed across technologies and across subjects — is needed.
The fundamental challenge of tech-law is not how to best regulate novel technologies, but rather how to best address familiar forms of uncertainty in new contexts. Accordingly, we construct a three-part framework, designed to encourage a more thoughtful resolution of tech-law questions. It:
(1) delineates the three types of tech-fostered legal uncertainty, which facilitates recognizing common issues;
(2) requires a considered selection between permissive and precautionary approaches to technological regulation, given their differing distributive consequences; and
(3) highlights tech-law-specific considerations when extending extant law, creating new law, or reassessing a legal regime.
This structure emphasizes the possibility of considered and purposeful intervention in the iterative and co-constructive relationship between law and technology. By making it easier to learn from the rich history of prior dilemmas and to anticipate future issues, this framework enables policymakers, judges, and other legal actors to make more just and effective regulatory decisions going forward.
For the full text of these works and additional scholarship from UW Law faculty and staff, visit the University of Wisconsin Law School Legal Studies Research Paper Series on SSRN. A free email subscription is available at the top right of the page.