What one scholar coined a “quiet revolution” in consumer contracts has been a half century in the making. And the revolution extends well beyond consumer contracts. Legislatures and regulators passed over seven hundred plain language laws infusing plain language into consumer contracts, notices, disclosures, government reports, court forms, election ballots, and more. They did so with one goal in mind: make legal documents more understandable. This shared goal crosses doctrines and pierces the traditional private law-public law divide. Yet, despite sharing a goal, lawmakers differ dramatically on how to achieve it. The result is a bizarre patchwork of constitutions, statutes, and regulations with massive variations. By examining these variations, this Article takes on the previously overlooked normative implications of plain language law design. Lawmakers must decide which documents to cover, what standard to apply, and what enforcement and penalties to allow, which necessarily involves classic policyinfused decisions like choosing between the free market or regulation, allocating burdens and costs, and line drawing. As a result, this Article contends that the traditional view that document design is a lawyer skillset reducible to convenient lists of “best practices” is wrong. Lawmakers have replaced lawyer discretion. Their involvement, and the scale and complexity of their design choices, have converted plain language into a legal doctrine driven by quintessential public policies. More, the complexity of plain language laws extends beyond how to design the laws to the more fundamental question of who designs them. The complex patchwork of codified laws from legislatures and regulators sits alongside expansive common law plain language requirements unilaterally injected by courts. Predictably, with so many decisions made by different decisionmakers, discrepancies pervade the national landscape. Such discrepancies create separations of powers tension and inefficiencies as drafters struggle to find and comply with the many different requirements from different lawmakers. This Article argues for an expansion of plain language common law, because courts are best equipped to create such a standard. It turns out plain language laws are anything but plain.
{"title":"Regulating Plain Language","authors":"Michael Blasie","doi":"10.59015/wlr.stsk3198","DOIUrl":"https://doi.org/10.59015/wlr.stsk3198","url":null,"abstract":"What one scholar coined a “quiet revolution” in consumer contracts has been a half century in the making. And the revolution extends well beyond consumer contracts. Legislatures and regulators passed over seven hundred plain language laws infusing plain language into consumer contracts, notices, disclosures, government reports, court forms, election ballots, and more. They did so with one goal in mind: make legal documents more understandable. This shared goal crosses doctrines and pierces the traditional private law-public law divide. Yet, despite sharing a goal, lawmakers differ dramatically on how to achieve it. The result is a bizarre patchwork of constitutions, statutes, and regulations with massive variations. By examining these variations, this Article takes on the previously overlooked normative implications of plain language law design. Lawmakers must decide which documents to cover, what standard to apply, and what enforcement and penalties to allow, which necessarily involves classic policyinfused decisions like choosing between the free market or regulation, allocating burdens and costs, and line drawing. As a result, this Article contends that the traditional view that document design is a lawyer skillset reducible to convenient lists of “best practices” is wrong. Lawmakers have replaced lawyer discretion. Their involvement, and the scale and complexity of their design choices, have converted plain language into a legal doctrine driven by quintessential public policies. More, the complexity of plain language laws extends beyond how to design the laws to the more fundamental question of who designs them. The complex patchwork of codified laws from legislatures and regulators sits alongside expansive common law plain language requirements unilaterally injected by courts. Predictably, with so many decisions made by different decisionmakers, discrepancies pervade the national landscape. Such discrepancies create separations of powers tension and inefficiencies as drafters struggle to find and comply with the many different requirements from different lawmakers. This Article argues for an expansion of plain language common law, because courts are best equipped to create such a standard. It turns out plain language laws are anything but plain.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71220285","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Essay challenges various myths of the Supreme Court, including the myth of the Supreme Court as the only branch in the federal government capable of neutral, non-partisan, juridical interpretations of the Constitution. Through various means, I show how the Supreme Court fails to live up to that myth, especially in its failure to abide by the same code of ethics that other judges follow. The Court’s excuse is that it is not like other courts, but, if we take that excuse at face value, then there is more, not less, reason to require the Supreme Court adhere to the same ethical standards every other judge must follow. If the Court is just another court, it should of course be constrained like other courts, including through a code of ethics. But, if it is not like other courts, a code of ethics is even more imperative to ensure the justices from lapsing into just another political venue. In addition to highlighting how the Court’s recent decisions undercut its claims of being a court rather than just another political branch, I use several case studies to show how the Court needs to adhere to a code of ethics to ensure it does not function as presidents and senators would like it to function as an extension of their political powers.
{"title":"Supreme Myth Busting: How the Supreme Court Has Busted its Own Myths","authors":"","doi":"10.59015/wlr.ryeh4776","DOIUrl":"https://doi.org/10.59015/wlr.ryeh4776","url":null,"abstract":"This Essay challenges various myths of the Supreme Court, including the myth of the Supreme Court as the only branch in the federal government capable of neutral, non-partisan, juridical interpretations of the Constitution. Through various means, I show how the Supreme Court fails to live up to that myth, especially in its failure to abide by the same code of ethics that other judges follow. The Court’s excuse is that it is not like other courts, but, if we take that excuse at face value, then there is more, not less, reason to require the Supreme Court adhere to the same ethical standards every other judge must follow. If the Court is just another court, it should of course be constrained like other courts, including through a code of ethics. But, if it is not like other courts, a code of ethics is even more imperative to ensure the justices from lapsing into just another political venue. In addition to highlighting how the Court’s recent decisions undercut its claims of being a court rather than just another political branch, I use several case studies to show how the Court needs to adhere to a code of ethics to ensure it does not function as presidents and senators would like it to function as an extension of their political powers.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71220126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Americans do not want the Supreme Court to be just another political institution. This is apparent in the lukewarm response to even modest proposals to change the structure of the Court, such as limiting the terms of its justices or changing its size. The partisan overlay of this reaction is obvious, but the purpose of this Essay is to highlight an additional barrier to change: the dominance of originalist rhetoric in American constitutional discourse. The rhetoric of originalism has successfully tapped into many Americans’ deeply held expectations about the role of the Court and the Constitution as a unique and law-based actor. In doing so, it has crowded out alternative and more realistic stories of the value the Supreme Court actually adds to our system of self-government, making it difficult for proposals to change the Court to get traction in the public imagination. But the Constitution itself positions the Court within our system of checks and balances, not outside it. Reminding Americans of the ways the Constitution balances judicial independence and judicial accountability to constrain judicial overreach enables Supreme Court-reform advocates to reclaim the narrative—and, perhaps, the initiative—in the ongoing American debate about the Court and Constitution’s role in our system of self-government.
{"title":"The Court and the Constitution","authors":"Lori A. Ringhand","doi":"10.59015/wlr.iqca1741","DOIUrl":"https://doi.org/10.59015/wlr.iqca1741","url":null,"abstract":"Americans do not want the Supreme Court to be just another political institution. This is apparent in the lukewarm response to even modest proposals to change the structure of the Court, such as limiting the terms of its justices or changing its size. The partisan overlay of this reaction is obvious, but the purpose of this Essay is to highlight an additional barrier to change: the dominance of originalist rhetoric in American constitutional discourse. The rhetoric of originalism has successfully tapped into many Americans’ deeply held expectations about the role of the Court and the Constitution as a unique and law-based actor. In doing so, it has crowded out alternative and more realistic stories of the value the Supreme Court actually adds to our system of self-government, making it difficult for proposals to change the Court to get traction in the public imagination. But the Constitution itself positions the Court within our system of checks and balances, not outside it. Reminding Americans of the ways the Constitution balances judicial independence and judicial accountability to constrain judicial overreach enables Supreme Court-reform advocates to reclaim the narrative—and, perhaps, the initiative—in the ongoing American debate about the Court and Constitution’s role in our system of self-government.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71219552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Consumer financial protection law is dominated by ex-ante, contract-centered regulatory measures. But these measures largely fail to curb lenders’ incentive to lend beyond consumers’ ability to repay. Accordingly, this Article suggests a different approach: discouraging lenders from extending loans that cannot be repaid by dismissing the imprudent lender’s claims in consumer bankruptcy. I argue that regulation of underwriting decisions through bankruptcy is normatively desirable because it challenges the artificial separation between consumer finance law and consumer bankruptcy law. By this token, it may not only overcome the autonomy and effectiveness concerns attached to ex-ante consumer finance regulation, but also enhance the internal coherence of consumer bankruptcy law.
{"title":"Regulating Excessive Credit","authors":"A. Faust","doi":"10.59015/wlr.laie6694","DOIUrl":"https://doi.org/10.59015/wlr.laie6694","url":null,"abstract":"Consumer financial protection law is dominated by ex-ante, contract-centered regulatory measures. But these measures largely fail to curb lenders’ incentive to lend beyond consumers’ ability to repay. Accordingly, this Article suggests a different approach: discouraging lenders from extending loans that cannot be repaid by dismissing the imprudent lender’s claims in consumer bankruptcy. I argue that regulation of underwriting decisions through bankruptcy is normatively desirable because it challenges the artificial separation between consumer finance law and consumer bankruptcy law. By this token, it may not only overcome the autonomy and effectiveness concerns attached to ex-ante consumer finance regulation, but also enhance the internal coherence of consumer bankruptcy law.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71219672","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The onset of the COVID-19 pandemic caused millions of Americans to suddenly begin telecommuting across state lines. In response, several states deemed the salaries of employees who had previously worked at workplaces in the taxing state to be “sourced” temporarily to that state. Some rival states contended this was unconstitutionally extraterritorial, but the Supreme Court ultimately declined to hear their complaint. This Article explains why these sourcing rules were constitutional. The Constitution only requires a state’s method for sourcing income to be “fair” or “rational.” Given the indispensable role of employers in generating an employee’s salary—and that the state of the workplace is the labor market into which the employee has purposefully sold their services—these rules met this standard. Indeed, nearly all existing state income-attribution rules (including New York’s controversial “convenience of the employer” regulation) are constitutional. The production of income involves the contribution of several activities, so assigning it to a particular location depends on value and policy judgments about the significance of those contributions—as well as the governmental services supporting those activities. These rules might be controversial as a matter of policy, but there is little doubt they are rational and reasonable. More importantly, the judiciary’s deference to these sorts of state judgments abides the Constitution’s deeper norms about the proper judicial role. Exacting judicial review of these types of rules would risk ensnaring the courts in an endless series of problems they lack the institutional competence to solve.
{"title":"Remote Work and the State Taxation of Nonresident Employees","authors":"B. Joondeph","doi":"10.59015/wlr.mqli6346","DOIUrl":"https://doi.org/10.59015/wlr.mqli6346","url":null,"abstract":"The onset of the COVID-19 pandemic caused millions of Americans to suddenly begin telecommuting across state lines. In response, several states deemed the salaries of employees who had previously worked at workplaces in the taxing state to be “sourced” temporarily to that state. Some rival states contended this was unconstitutionally extraterritorial, but the Supreme Court ultimately declined to hear their complaint. This Article explains why these sourcing rules were constitutional. The Constitution only requires a state’s method for sourcing income to be “fair” or “rational.” Given the indispensable role of employers in generating an employee’s salary—and that the state of the workplace is the labor market into which the employee has purposefully sold their services—these rules met this standard. Indeed, nearly all existing state income-attribution rules (including New York’s controversial “convenience of the employer” regulation) are constitutional. The production of income involves the contribution of several activities, so assigning it to a particular location depends on value and policy judgments about the significance of those contributions—as well as the governmental services supporting those activities. These rules might be controversial as a matter of policy, but there is little doubt they are rational and reasonable. More importantly, the judiciary’s deference to these sorts of state judgments abides the Constitution’s deeper norms about the proper judicial role. Exacting judicial review of these types of rules would risk ensnaring the courts in an endless series of problems they lack the institutional competence to solve.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71220068","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Forward I: Controlling the Supreme Court—Is There a Future for American Law?","authors":"","doi":"10.59015/wlr.pjgc7638","DOIUrl":"https://doi.org/10.59015/wlr.pjgc7638","url":null,"abstract":"","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71220118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is little new under the sun, especially when it comes to the Court and its critics. People have long argued that the Court is out of control; but in our sys-tem, rightly or wrongly, we have deliberately insulated the Court from certain kinds of control. As a result, the justices make decisions based on their own judgments, however controversial, about how to interpret the Constitution. This is just the normal operation of our Supreme Court, for better or worse. All that’s changing is which particular decisions are being made, and which partic-ular precedents are being reversed.
{"title":"A Normal Supreme Court","authors":"E. Volokh","doi":"10.59015/wlr.bcht3349","DOIUrl":"https://doi.org/10.59015/wlr.bcht3349","url":null,"abstract":"There is little new under the sun, especially when it comes to the Court and its critics. People have long argued that the Court is out of control; but in our sys-tem, rightly or wrongly, we have deliberately insulated the Court from certain kinds of control. As a result, the justices make decisions based on their own judgments, however controversial, about how to interpret the Constitution. This is just the normal operation of our Supreme Court, for better or worse. All that’s changing is which particular decisions are being made, and which partic-ular precedents are being reversed.","PeriodicalId":54350,"journal":{"name":"Wisconsin Law Review","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71219375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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