Wisblawg
Legal Research News and Information with an Emphasis on Wisconsin

Recent UW Law Faculty Scholarship: Spillover Tax Precedent; A Theory of Stategraft; The Not-so-great Transformation; The Content of the Hollow Core of Antitrust: The Chicago Board of Trade Case and the Meaning of the “Rule of Reason” in Restraint of Trade Analysis; Between Principles and Power: Water Law Principles & The Governance of Water in Post-Apartheid South Africa; and Why Do People Form Law-Abiding Attitudes Under Authoritarianism: The Case of Russia

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Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

We know that pro se litigants often lose. However, we know almost nothing about the circumstances in which they win. One such circumstance, this Article finds, is when they can take advantage of favorable precedent. This Article calls those favorable precedents for pro se litigants “spillover precedents.” Spillover precedents are cases with redistributive downward ripple effects that subsequently benefit pro se litigants. This Article is the first to examine the potential redistributive effects of precedent. To focus the inquiry, the Article carried out an empirical study of Tax Court cases from 2015-2019 in which pro se litigants won. This analysis revealed the major role of spillover precedent. The Article details how pro se taxpayers use spillover precedent, describing major examples and identifying patterns in them. The Article then examines the normative implications of spillover precedent, suggesting policy interventions, focusing particularly on the potential role of low-income taxpayer clinics, and considering the distinguishing features of the tax context.

Neoliberalism and its accompanying austerity measures are shrinking local and national government budgets, even though constituent needs remain pressing. In desperation, public officials sometimes replenish public coffers through illicit extraction from segments of the population poorly positioned to fight back. In Detroit, for example, city officials inflated property tax assessments in violation of the Michigan Constitution, leading to illegally inflated property taxes that many homeowners could not afford to pay. Consequently, since 2009, one in three homes have completed the property tax foreclosure process, the highest number of property tax foreclosures in American history since the Great Depression. These unlawful practices are not just occurring in Detroit, but also in other American cities such as Ferguson, Philadelphia, and New Orleans.Nevertheless, because corruption is universally defined as corrupt acts that are for private or personal gain, there is currently no lexicon to describe corrupt acts that principally benefit the public treasury. This overlooked phenomenon is corruption 2.0. or what I have coined “stategraft,” which is when state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights. To establish stategraft as an essential theoretical framework, this Article elaborates its definitional elements, demonstrates its conceptual value, and shows how it extends existing discourses on corruption, state crime, and the predatory state.

Many have attributed the excesses of private power in the digital age to the internet’s “lawlessness.” Julie Cohen’s Between Truth and Power explains why this is a dangerous misconception. The law has not sat idle during the rise of informational capitalism; it has undergone extensive transformation and now facilitates corporate surveillance and manipulation on a global scale. Meanwhile, legal institutions have taken a turn towards managerialism and away from democratic accountability. Recognizing these transformations and the ideologies that motivate them is critical to grappling with the legal challenges of the digital era.

Antitrust law’s rule of reason for determining the validity of contracts in restraint of trade is enigmatic at best. A primary source of its contemporary Delphic character is the common understanding of the Chicago Board of Trade decision, one of the few cases in which the Supreme Court has upheld a restraint as reasonable. Using several potential meanings for the rule of reason, this study examines the factual context of the case, the record made by the parties, their legal and factual arguments to the Supreme Court, and the contemporaneous state of the law. The objective is to determine what rule of. reason was being employed in the case. The factual evidence established that the most likely explanation for the restraint was that it was to facilitate and protect from opportunistic exploitation the efforts of the members of the Board who were collectively creating a more efficient market system for certain classes of grain. Moreover, the legal arguments of the parties show that the characterization of the function of the restraint was a crucial issue in the case. Finally, a defense of reasonableness based on the ancillarity of a restraint to some other primary transaction or activity among the parties is entirely consistent with the then existing case law. In combination, these considerations show that the rule of reason employed in the case was not the open-ended balancing test commonly supposed, but a focused inquiry into the function of the restraint and its relationship to the joint productive activities of the parties. Therefore, when read in context of the record, argument and relevant case law, the Board of Trade decision does not provide a basis for making the rule of reason the unstructured hollow core of antitrust law.

Debates over the management and allocation of water in the postcolonial era, and in post-apartheid South Africa in particular, reveal that struggles over water resources in Southern Africa occur within three broad frames: the institutional, the hydrological, and the ideological. Each of these realms reflects tensions in the relationship between power and principle that continue to mark the governance of water. Each perspective offers a way to understand the use and the limits of law in the management of a country’s water resources. The existence of explicit principles, whether as policy guidelines, constitutional rights, or in the language of regional and international agreements, provides two important resources for those who struggle for access to water. First, a vision of a more just allocation of this fundamental resource and, second, an articulation of common benchmarks to which states and governments might be held to account.

Authoritarian leaders frequently send mixed messages about law. While official rhetoric typically emphasizes obeying law, leaders have proven willing to sidestep the law when it proves inconvenient. We explore the impact of this duality on the attitudes of Russian citizens, drawing on three rounds of the Russian Longitudinal Monitoring Survey. To identify the separate effects of cohort, age, and survey year, we use existing estimates of a function that relates age to the predisposition to form new attitudes. We find that Russians’ attitudes on law-abiding are driven by the strength of the Kremlin’s messaging. This effect was strongest for the oldest Russians. Yet, ceteris paribus, more years lived in Russia lead to a decline in law-abiding attitudes. The net result of these two effects is that older Russians profess greater law abidingness. Putin’s emphasis on obeying the laws on the books has left its mark in the increasing prevalence of law-abiding attitudes.

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.