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Health Law Retreat Call for Works-in-Progress

Seton Hall Law School’s Center for Health & Pharmaceutical Law & Policy is pleased to announce the inaugural Mid-Atlantic Health Law Works-in-Progress Retreat, which will be held on February 10, 2017, at Seton Hall Law School in Newark, New Jersey. The purpose of the retreat is to give regional health law scholars an opportunity to share their work and exchange ideas in a friendly, informal setting. The retreat is open to anyone with an academic appointment in health law (including professors, fellows, and visitors) in any institution of higher education in the mid-Atlantic area.

The retreat will consist of an in-depth discussion of approximately 5-6 draft papers. A designated commentator will first provide a 10-15 minute overview of each paper, as well as his or her reactions. The author will then have 5 minutes to respond, following which all retreat participants will participate in a general discussion of the draft.

Persons interested in having their papers presented should submit a preliminary draft or, if that is not possible, a detailed abstract, no later than November 18 to Carl Coleman at Seton Hall Law School. Papers to be presented will be selected by December 9, and final drafts will be due on January 20. Drafts will be made available to all participants on a password-protected website.

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Donald Trump and the Politics of Disjunction

I posted the following discussion of Donald Trump’s candidacy on Balkanization in January.  I think it stands up pretty well while being neutral, so I thought I would reprint it here:

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We’ve had an extended discussion on the blog about whether Barack Obama is a “reconstructive” President as described in the groundbreaking scholarship of Stephen Skowronek. Part of the answer turns on the outcome of 2016 presidential election. Will Obama’s successor build on what he did or repudiate his legacy? That remains to be seen.

There is another way, though, of looking at this question. Skowronek’s presidential typology says that political coalitions in decline tend to turn to outsiders who have, for lack of a better term, a reputation as a “Mr Fix-It” rather than deep connections to the party’s ideology or constituencies. Past examples include Herbert Hoover, a self-made millionaire who (though it’a hard to remember now) was widely thought of as a problem solver before he was elected. Jimmy Carter is another example–he was an engineer by training–who was a classic outsider in 1976. On the losing side, there was Wendell Wilkie (the GOP nominee in 1940) who had never been elected to anything and was touted for his business success. These are the “disjunctive” presidents or presidential candidates.

The Republican Party went with this sort of strategy in 2012. Mitt Romney was mainly known as a success in business and as a highly competent manager (of, for example, the Winter Olympics). As Governor of Massachusetts for one term, he certainly did not come from the heartland of the GOP coalition and did not have broad government experience. There was a plausible advantage in this, though, as he also did not carry much of the baggage that a party insider or crusader would.

Now we are getting disjunction on steroids with Donald Trump. He is also pitching himself as “Mr Fix-It” without any significant commitment to the traditional ideology of the party or, of course, any service in office. He is presenting this as a plus, and certain party elites are in the process of deciding that this he be better than someone closely identified with the party’s ideology–Ted Cruz. You can also contrast Trump’s success with the weakness of the obvious Establishment candidate–Jeb Bush–to see how far the traditional formula for success in the GOP primary is falling short this time.

Why does this matter? Because disjunctive candidates only do well at the end of a particular coalition, which implies that the other side represents the start of a new one. But has that already happened with Obama’s election, or will it happen after, say, President Trump has a disastrous term?

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FAN 124 (First Amendment News) Ellen DeGeneres raises First Amendment defense in defamation case

Under the First Amendment to the United States Constitution and under well-established Georgia law, courts have consistently recognized that humor, parody, name-calling and other forms of ‘rhetorical hyperbole’ are simply not actionable as defamation or under any other legal theory. — Thomas Clyde, Warner Bros. lawyer (Sept. 16, 2016)

Thomas Clyde

Thomas Clyde

Thomas M. Clyde is a partner at the Atlanta, Georgia law firm of Kilpatrick Townsend. He has has “extensive experience in defending publishers, broadcasters and other information providers against claims alleging defamation, invasion of privacy, infringement of intellectual property rights and newsgathering misconduct. . . . Mr. Clyde was recognized in The Best Lawyers in America for First Amendment Litigation in 2017 and the four years immediately preceding. He was also named a 2017 ‘Atlanta Lawyer of the Year’ in the area of First Amendment Law by The Best Lawyers in America. Mr. Clyde was recognized as a Georgia ‘Super Lawyer’ for First Amendment, Media and Advertising Law in 2012 and 2013, for Constitutional Law in 2014, and again for Media and Advertising Law in 2015 and 2016 by Super Lawyers magazine.” He is also the past co-chair of the Media Law Letter Committee of the Media Law Resource Center.

Now his First Amendment expertise is being summoned to defend TV comedian and talk-show host Ellen DeGeneres who is being sued for defamation. Here is how it happened: Seems that on one of her national TV shows Ms. DeGeneres referred to Ms. Titi (pronounced ‘TEE TEE) Pierce as “Titty Pierce.”

According to LawNewz,  “[d]uring a segment of her daily talk show called, ‘What’s Wrong with These Signs? Ellen showed a photograph of a real estate sign advertising broker Titi Pierce, and pronouncing the name ‘titty’ instead of the phonetic ‘tee-tee.’ Ellen made the ‘Titty’ wisecrack right after showing a sign that read ‘Nipple Convalescent Home,’ and continued to joke, “Titty Pierce, sounds like she might have spent some time in that nipple home, I don’t know.’

 “It was all in good fun,” reported Elura Nanos, “until Ms. Pierce’s phone blew up with harassing calls and messages. And to make matters worse, she was on her way to a family funeral. Comedic timing really is everything.” In light of that, on “Ms. Pierce filed a lawsuit in Georgia Federal Court against  DeGeneres, alleging Invasion of Privacy, Misappropriation of Likeness, Defamation, and Intentional Infliction of Emotional Distress.”

As Mr. Clyde sees it, “This was silly, lighthearted fun,” and nothing more. Even so, his response to the complaint raised a First Amendment defense.

The Plaintiff is being represented by Stacey Godfrey Evans.

See video clip, courtesy of LawNewz, here.

Copy of Complaint here.

Katie Couric, film company & distributor sued for defamation

Katie Couric

Katie Couric

This from Larry Iser writing in Forbes: “Back in May, Katie Couric faced a heap of controversy over an edited scene in the 2016 documentary Under the Gun. This week, Couric, along with the documentary’s director Stephanie Soechtig, Soechtig’s company Atlas Film LLC and the film’s distributor Epix were named defendants in a $12 million defamation lawsuit filed by the Virginia Citizens Defense League (VCDL), a gun rights activist group appearing in the documentary, and two of its members, licensed firearms dealer Patricia Webb and Daniel Hawes, a firearms and personal defense litigator. Couric is the narrator and an executive producer of Under the Gun. According to the complaint, Couric’s interviews of VCDL members were heavily edited and portrayed them in a false light.At one point in the documentary, Couric asks members of the group, ‘If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?”The film portrays the activists as speechless and apparently unable to answer the question for about eight or nine seconds. However, the complaint alleges that audio tapes prove that the activists had, in fact, provided an immediate, substantive six-minute response to Couric’s query. . . .'”

Larry Iser (the author of the Forbes piece) is a litigator at Kinsella Weitzman Iser Kump & Aldisert. He frequently litgates defamation and intellectual property disputes, and has represented music artists including The Beatles, Michael Jackson and Jackson Browne.

→ See also Bob Ownes, Katie Couric Sued for $12 Million For Defamation In Anti-Gun Documentary, Bearing Arms, September 13, 2016

Headline: “Some defendants dismissed in BPI-ABC defamation case”

In an article by Nick Hytrek, writing in the Sioux City Journal, it was reported that “in the wake of the dismissal of five defendants in Beef Products Inc.’s $1.2 billion defamation lawsuit against ABC, court officials believe they do not need to move the trial out of the Union County Courthouse.The dismissal means fewer lawyers will be present at the trial, scheduled for June 5, and courthouse facilities should be adequate after some minor modifications, said Kim Allison, First Circuit court administrator. . . .”

unknown“In August, lawyers filed a stipulation to voluntarily dismiss ABC News, David Kerley, Gerald Zirnstein, Carl Custer and Kit Foshee as defendants in the lawsuit. The suit will now focus on what BPI’s attorney said are the three main defendants: American Broadcasting Companies Inc., former ‘World News Tonight’ anchor Diane Sawyer and news correspondent Jim Avila.’

“Circuit Judge Cheryle Gering entered an order dismissing the defendants on Aug. 24.”

“‘BPI’s decision to dismiss some of the other defendants does not release the primary targets of the litigation, nor does it have anything to do with the merits of our case,’ BPI attorney, Erik Connolly, of Chicago, said in a written statement. . . .”

“BPI sued ABC, its correspondents, federal officials and a former employee in September 2012 in Union County Circuit Court and will attempt to prove that a series of stories and broadcasts that began in early March 2012 defamed the company’s Lean Finely Textured Beef. . . .”

Headline: “Anti-Defamation League Boosting Presence In Silicon Valley” Read More

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Family Law After Obergefell

 

The Supreme Court’s 2015 decision in Obergefell v. Hodges marked a sea change in family law.  While the immediate impact of the decision is clear – same-sex couples now have the right to marry in every state – the implications of the decision for family law and for practicing family lawyers are considerably broader.  Recognition of marriage equality has created new issues for courts deciding divorce and parenting cases, and for lawyers advising clients about issues related to family formation and family break-up. This post will highlight the family law implications of Obergefell  and explore some of the issues that are likely to arise in future cases involving the rights and obligations of same-sex couples.

Same-sex divorce, American style

According to the Williams Institute, close to 400,000 same-sex couples were already married at the time Obergefell was decided. A recent Gallup poll estimates that more than 120,000 additional same-sex couples have married since that time. But not all marriages endure.  About 40% of heterosexual marriages now end in divorce, and it is reasonable to anticipate that the divorce rate for same-sex couples will be roughly comparable.  Indeed, access to the financial and parenting remedies associated with divorce is one of the important benefits of marriage.   But same sex divorces are likely to raise some challenging legal issues.

Parenthood and the impact of the marital presumption

When an opposite sex couple divorces, legal parentage generally is not disputed. In part, this is due to the operation of the “marital presumption” — the legal rule that identifies the husband of a married woman as the legal father of any children born (or conceived) during the marriage.  At one time, the presumption was nearly irrebutable.  More recently, courts in a number of states have allowed divorcing parties to rebut the presumption based on genetic evidence of non-paternity.

Courts and legislatures have already begun to grapple with the application of the marital presumption to same-sex couples. Although the language of the presumption is usually gendered — specifying both a husband and a married woman — some courts have interpreted the statutory reference to husband to apply as well to a female spouse.  Other courts have declined to interpret their statutes broadly, but have invoked equal protection principles to extend the marital presumption to same-sex partners. See, e.g., Gartner v Iowa Department of Public Health, 830 N.W.2d 335 (Iowa 2013).  Still others have refused to apply the presumption to same-sex relationships, citing its biological underpinnings or opining that such a step is a matter for the legislature, not the judiciary.

Even if courts apply the marital presumption to same-sex couples, questions remain about its impact. In most states, the presumption is now rebuttable, and genetic evidence of non-paternity is often (albeit not always) sufficient grounds to rebut the presumption. But should genetic evidence be relevant to parentage in a same-sex marriage, where both spouses know from the outset that one parent will not be genetically related to the child.  And how, if at all, should the presumption apply to gay male marriages, in which neither spouse is a “married woman” and where the woman who gives birth is generally not an intended parent?  These questions, of course, raise the broader issue of whether parentage should be understood as a biological fact, or (primarily) as a legal and social construct.  And, if parentage is primarily a legal construct, what role (if any) should marriage play?

Moreover, as its name indicates, the marital presumption applies only to children born (or conceived) during a marriage. But many same-sex couples today are co-parenting children who were born to one spouse before their marriage, perhaps during a prior heterosexual union.  The marital presumption is of no use here, just as it provides no basis for step-parents to assert legal parentage in the absence of an adoption.  Other doctrines such as de facto parenthood, discussed in Professor Murphy’s last post, may be available to establish parental rights, but establishing parenthood under those doctrines in fact-specific and uncertain, and the doctrine has been criticized as insufficiently protective of the autonomy of biological parents.

Moreover, while many states now recognize some form of de facto parenthood, others do not, and, in the absence of a judicial decree, states are not required to respect each other’s parentage rules.  Thus, a same-sex partner who is recognized as a legal parent in one state may not be recognized in another.  For this reason, many family lawyers continue to advise same-sex spouses to secure parental rights through adoption, even where a couple is married at the time their child is born.  But adoption can be both expensive and intrusive, and many same-sex couples understandably assume that their marriage renders adoption unnecessary, only to find upon dissolution that the law is far less settled than they imagined.  Judicial declarations of parentage, obtained at the time a child is born, could provide an alternative means of interstate recognition, but existing state procedures are not designed for same-sex couples, whether married or not.

Divorce-related financial remedies

The dissolution of same-sex marriages presents other challenges as well. Current standards for both property distribution and post-divorce spousal support depend significantly on the length of the marriage in question; the longer the financial interdependence associated with marriage, the more robust the post-divorce sharing rules.  But many of today’s same-sex marriages were preceded by lengthy periods of non-marital cohabitation, particularly in states that refused to allow same-sex marriage prior to Obergefell.  If such a couple divorces after a relatively short marriage, can a court base a property or a support award on the lengthy period of pre-marital cohabitation?   Many courts have refused to do so in cases involving opposite-sex couples who cohabited prior to marriage, noting that the applicable statutory language refers specifically to the length of the marriage, not to the length of the relationship.  Should these decisions apply to same-sex couples?  Other courts have relied on their on their equitable powers to consider non-marital cohabitation as a factor in fixing the financial consequences of divorce.  Some commentators have suggested using common law marriage as a solution to this problem.  But common law marriage has traditionally required that individuals have the legal capacity to marry each other at the time the relevant conduct took place and that the parties held themselves out as married in one of the handful of states that allow couples to contract a common law marriage.  Both of these requirements are likely to post problems for most same-sex couples.

And how should Obergefell affect the treatment of cohabitation relationships that break up without a marriage?  Prior to Obergefell, a number of states had begun to apply principles of equity or implied contract to redistribute assets accumulated in one partner’s name at the end of a long-term cohabitation relationship.  Many of these cases involved same-sex couples, and the couple’s inability to marry may well have influenced the court’s decision.  The American Law Institute’s Principles of Family Dissolution took these developments a step further by extending status-based property and support remedies to unmarried partners who “for a significant period of time share a primary residence and a life together as a couple.”  How should Obergefell’s recognition of marriage equality affect the viability of these doctrines?  Does the availability of same-sex marriage weaken claims based on non-marital cohabitation on the theory that a couple’s decision not to marry is an indication that they (or at least one of them) prefer not to be bound by marital sharing principles? Is this a preference that the law should respect, even if, in hindsight, it turns out to be a bad deal for one of the parties?  Or should courts continue to apply functional, as well as formal criteria, to determine the appropriateness of post-relationship financial sharing?

Wither Civil Unions and Domestic Partnerships

More generally, how should the availability of same-sex marriage affect other legal statuses, such as domestic partnerships and civil unions? Should states that previously recognized such unions automatically convert them to marriages unless a couple explicitly “opts out?”  Or should states require that domestic partners affirmatively “opt in” to marriage?  What should be the legal default?  Will private companies that previously provided benefits to same-sex domestic partners now restrict such benefits to married couples?  And, if so, has the “right” to marry celebrated in Obergefell become an obligation to do so – a possibility that Professor Kathrine Franke cautioned against in her 2015 book, Wedlocked: The Perils of Marriage Equality.

More broadly, should states retain these alternative legal statuses as a form of “marriage lite” or have they outlived their utility now that both same-sex and opposite-sex couples have access to marriage? And if states choose to retain these alternatives, do constitutional equality principles require that they be made available to opposite-sex as well as same-sex couples? To non-romantic partners such as siblings or other relatives?  Now that marriage is available to same-sex as well as opposite sex, couples, how much should it matter?

Beyond Marriage and Divorce

Marriage equality is also likely to affect legal developments in contexts beyond divorce and parenting disputes. In her recent article, Inheritance Law and the Marital Presumption After Obergefell, my colleague, Paula Monopoli, examines the impact of Obergefell on inheritance law; she argues that important policy goals support extending a conclusive marital presumption to all nonbirth/nongenetic spouses for purposes of inheritance law, and suggests that the presumption be unmoored from its biological roots and re-conceptualized as resting on the presumed consent of the nonbirth/nongenetic spouse to be the parent of any child born during a marriage.  In a broader frame, Douglas NeJaime, argues in his recent Harvard Law Review article, Marriage Equality and the New Parenthood, that marriage equality was both enabled by – and, in turn, enables — significant shifts in the law’s understanding of parenthood and in its ongoing construction of families.  Without a doubt, this is a construction project that should capture the imagination and engage the efforts of both legal scholars and practicing family lawyers for many years to come.

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A Forthcoming Book to Recommend

I was at The University of the South (Sewanee) for a conference on the 150th anniversary of Tennessee’s ratification of the Fourteenth Amendment. There were many terrific presentations there, but I wanted to single out one by Dan Sharfstein about his upcoming book entitled Thunder in the Mountains: Chief Joseph, Oliver Otis Howard, and the Nez Perce War.  (It’s available for pre-order here.)  Here is the Abstract:

The epic clash of two American legends―their brutal war and a battle of ideas that defined America after Reconstruction.

In 1865 Union Army General Oliver Otis Howard took charge of the Freedmen’s Bureau, tasked with helping millions of former slaves become free and equal citizens. He was so committed to civil rights that Howard University was named for him. But when Reconstruction failed, General Howard was sent to the Pacific Northwest to force Native Americans onto reservations. His biggest adversary was Chief Joseph, a Nez Perce leader who doggedly pushed federal officials to save his ancestral territory and to give Native Americans equal rights. Although Joseph echoed Howard’s earlier views about liberty for freed slaves, in the summer of 1877 the general and his troops ruthlessly pursued Nez Perce families who refused to leave their homes. Thunder in the Mountains is the story of two remarkable Americans who fought vicious battles across 1,400 miles of the northern Rockies and waged a war of ideas about freedom, equality, and the role of government in American life.

colonists-under-liberty-tree
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FAN 123 (First Amendment News) When you think of free speech, think of “45” — New book by Stephen Solomon explains why

It is said that the dead live on the lips of the living.  And so it was at the Floyd Abrams Institute for Freedom of Expression at Yale Law School last Friday when it co-hosted the tenth First Amendment Salon.

The discussion centered around Professor Stephen D. Solomon’s new book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016).

Stephen Solomon, Nadine Strossen & Akhil Amar

Stephen Solomon, Nadine Strossen & Akhil Amar

Speaking before a full house at YLS, Professors Akhil Amar and Nadine Strossen joined in the exchange with Professor Solomon. The event was introduced by Floyd Abrams and was video-cast live to audiences at the offices of Levine Sullivan Koch & Schulz in New York and Washington, D.C.

Much of the lively discussion focused on dissenting speech (including symbolic expression) in the revolutionary era. In the course of an animated, opinionated, and sophisticated dialogue, there were several references to the number “45” and its significance in the history of free speech. So why?

Here is where Professor Solomon’s well-researched book came into play (as the excerpts below reveal):

“[T]he number forty-five [was] symbolically linked to John Wilkes, a member of Parliament who gained renown for going to jail after criticizing the king in the forty-fifth issue of the newspaper [The North Briton] he published” in 1763.

“First in England and then in America, those who sympathized with Wilkes began engaging in an endless variety of symbolic protests with the number forty-five as the common theme.”

unknown-1 “On the evening of March 14, 1770, a prison guard opened the doors of Alexander McDougall’s jail cell so that visitors could enter.  There were forty-five visitors, to be exact, and all of them were women. . . . For publicity sake — and all of this was for publicity sake — the forty-five women had been described to the public as virgins. McDougall had been jailed for criticizing the royal governor and the New York general assembly, and his supporters aimed to to draw attention to him as a martyr for the cause of liberty.”

“In 1769, the Boston Gazette noted that forty-five ladies engaged in spinning linen and cotton, providing cloth to replace the British goods boycotted in the non-importation agreements. The Sons of Liberty in Boston made a procession of forty-five carriages, while . . . [at] an orchard outside Charleston, patriots decorated their Liberty Tree [see above] with forty-five lights and fired forty-five rockets.”

There is more, to be sure, but you’ll have to read Revolutionary Dissent to find out what you’re missing.

One more notable point: The text of the First Amendment contains, yes, 45 words!

Amar & Strossen channel Madison 

One of the high moment of the event came toward the end when Amar began to recite portions of James Madison’s November 27, 1794 speech in Congress. As soon as he begun to mouth the opening words, Strossen joined in memorized unison and harmony: “If we advert to the nature of republican government, we shall find that the censorial power is in the people over the government, and not in the government over the people.”

A video of this salon will be posted in an upcoming issue of FAN.

The next salon will be held in Washington, D.C. on Thursday, December 8th and will involve a dialogue between David Cole (the new National Legal Director for the ACLU) and Jess Bravin (the WSJ Supreme Court correspondent).

Headline: “Supreme Court won’t block Senate subpoena for Backpage.com” Read More

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Does Law Matter? The Economics of the Family Revisited

Economist Shoshana Grossbard’s book, The Marriage Motive: A Price Theory of Marriage: How Marriage Markets Affect Employment, Consumption and Savings (2015), provides important insights into the impact of the legal system on families.  It sheds new light on many of the questions that today’s law professors and family policy analysts address; yet, it a book that that only professional economists are likely to read.  The reasons tell us a lot about what has happened to the law and economics movement of the last thirty years, and the different directions its influence has taken.

At the time I started writing about Family Law at George Mason in the eighties, law and economics was in its heyday.  Peg Brinig and I, my George Mason colleague at the time, began to explore the implications of what seemed to be an exciting new field for our work on the financial consequences of divorce.  The articles we wrote were characteristic of the law and economics scholarship of the era.  We took the economic analysis of contract damages, applied it to the theory that justified spousal support, and reported on the insights it generated in critiquing the normative foundations of family obligations.  In process, we did no empirical work, nor did we rely to any great extent on empirical work in our law review articles.  Instead, we argued that contract theory, then dominated by economic analysis, accurately framed the normative choices judges and legislatures faced about such matters as the role of spousal support in the legal system and the likely impact of such choices on divorce rates.

Thirty years later, the intersection of law and economics looks quite different.  Within both Economics and Law, abstract equations and arm-chair legal analysis, respectively, have given way to much more rigorous empirical work.  Brinig, who is now at Notre Dame, obtained a Ph.D. in Economics and does empirical work informed by the type of questions lawyers ask about issues such as the role of custody rules on women’s inclination to initiate divorce or the response to domestic violence.   I have found my own work less influenced by economics and more by sociology, as sociology offers a deeper qualitative analysis of the reasons for family decisions, particularly the class-based split in family form, fertility, and father involvement.  Grossbard’s work reminds us that we have retreated to our disciplinary silos; while law professors cite other law professors who use economic or sociological methodologies, they have become less likely cite economists and even in the social sciences, imperial Economics has given way to a greater variety of methodologies, with proponents of each freer to ignore the work in other fields.

But what about Economics itself?  What has happened to the economic analysis of family decision-making?  And what lessons, if any, does the work of economists like Grossbard offer for Family Law?  To answer these questions requires starting with the legacy of Gary Becker.  Becker, a University of Chicago economist, won a Nobel Prize for his efforts to extend economic analysis generally and price theory in particular to nonfinancial realms such as crime, discrimination and the family.    He is viewed as almost single-handedly creating the modern economic study of the family, and while law professors no longer spend much time on Becker, economists do.  Virtually every economic article on the family starts by acknowledging the debt to Becker, even as these economists immediately go on to note that Becker’s major predictions were wrong and (cough, cough) we can now therefore ignore him.

Grossbard, who studied under Becker at Chicago, does something quite different.  She wishes to reclaim Becker’s original work on the family, work that was more eclectic than the later efforts for which he is known, and to use his methodologies without the hubris that characterized his more famous pronouncements.   Becker’s best known work, which Grossbard describes as one of the most frequently cited books in Economics (p. 8), is his 1981 Treatise on the Family.  It describes a unitary model of family decision-making that rests on two widely criticized assumptions.  The first is the idea that the benefits of marriage come from a gendered exchange between wives who “specialize” in cooking, cleaning and childrearing while their husbands specialize in “the market.”   He predicted accordingly that higher earning women would be the least likely to marry and dual earner couples who brought home carry out dinners and hired others to clean the toilets for them would be less stable.  The second is that, remarkably for an economist, he incorporated ideas of altruism into family decision-making.  The problem is that he asserted that a presumptively male head of the family would value the interests of the entire family while an egotistic second spouse would place her own interests ahead of those of other family members.  Becker’s critical predictions proved wrong – the only group in society whose marriage rates have increased are the highest earning women – and perhaps more importantly he proved tone deaf in describing the changing role of women and families in an era of greater gender equality.  Moreover, he tends to be associated with neoliberal political prescriptions, some of which he enthusiastically embraced.  While Becker’s work is more nuanced than his critics (and this brief description might suggest), it is easy for those who disagree to dismiss him altogether.

Within the economics of the family, however, Becker’s influence lives on.  After all, he invented the field and even his critics acknowledge the debt they owe him.  Grossbard begins her book by acknowledging his influence and attempting to refocus the field on the traditional subjects of economics.  Her subtitleHow Marriage Markets Affect Employment, Consumption and Savings” emphasizes that marriage is a product of markets, and that market exchanges depend on prices.  The book thus closely examines the factors that affect “price,” including gender ratios that alter the terms available to men and women who want a relationship with a member of the opposite sex.  More fundamentally, though, she is interested in how market terms affect employment, consumption and savings.   While Grossbard does not assume that marriage necessarily rests on a gendered exchange of men’s income for women’s services, she does see a trade-off, with some spouses investing more in household services than others (p. 181).  Much of the discussion of employment and consumption (and to a lesser degree savings) in the book involves this tradeoff: how do we understand the factors that determine the terms of the exchange.  In other words, if we see both paid employment and the consumption of domestic services as a product of markets, what determines their price?  When does it make sense for a spouse to stay in the paid labor market, while hiring others to provide child care and domestic services, and when does it make more sense for a spouse to provide such services directly?  This is the traditional subject of price theory and Grossbard attempts to reclaim the analysis as central to the economics of the family.

As someone who also wrote a book in 2014 on “Marriage Markets” (with Naomi Cahn), the part that immediately fascinated me was the discussion of gender ratios.  Grossbard assembles data across the United States and finds that gender ratios do appear to validate some of the empirical predictions the theory suggests.  She finds, for example, that holding other things constant, where men outnumber women in a given market, men’s labor participation increases and women’s declines, as men need a higher income to land a partner, and women find that they do not need to rely on the same degree on their own earnings (p. 8).  These findings have deep implications.   They suggest that gender performance, while not exactly the same as in the Ozzie and Harriet world of the fifties, is still alive and well.  Moreover, she offers empirical support for the same conclusion we reached that these effects are greater for the better educated.  The result contributes to the growing statistical portrait of class divergence in family formation practices, but without venturing very far into the possible explanations.   Economics still resists any real discussion of class as either a cultural or economic construct.

For most of the family law world, however, her most interesting findings involve the effect of legal differences.   Central to economic theory is the notion that an exchange of income for service requires trust; that is, protection of the vulnerabilities of a spouse who forgoes economic independence to contribute to the family.   The marital exchange has historically required permanence in order to encourage that exchange.  Yet, critics have also long noted that marital permanence came as well from women’s powerlessness in a system in which men can leave with their market-based resources intact while family-oriented women cannot.  Grossbard relies on an updated version of these theories.  By incorporating the tradeoffs into price theory, she suggests that they exist on a continuum.  The issue is not whether women should invest in the home instead of the market (Grossbard’s interest in positive, not normative analysis).  Nor is the question whether it is more “efficient.”  Instead, the question is the entirely empirical one: to what degree does it occur?  Her answer is that it depends in part on the extent to which the law protects the exchange.

Grossbard attempts to measure the effect by exploring jurisdictional differences.  And one of her most intriguing chapters addresses common law marriage.  As a general matter, one would expect unmarried cohabitants to forego paid labor to a lesser degree than married couples and most studies (again holding constant for other factors such as mothers’ income) find that to be true (p. 86).  Grossbard asks a rarely pondered question: what about common law marriage?  On the one hand, common law marriage extends to unmarried couples the same benefits as marriage if they show that they intended to be married.  On the other hand, only a minority of states recognize common law marriage and it’s not clear that couples in common law marriage states know that the courts might treat them as married.  Grossbard runs a statistical analysis of the difference in women’s workforce participation in common law marriage and non-common law marriage states and finds that the law matters (Chapter 7).   Should we believe her?

The question goes to the heart of the differences between the ways that economists and law professors approach such issues.  Roughly a decade ago, I moved from California to Missouri, to a neighborhood six blocks from the Kansas line.  As a law professor I knew that Missouri did not recognize common law marriage while Kansas did.  Yet, during the many discussions I had with my friends, colleagues and now adult children about where to live, the subject of common law marriage never arose.  With State Line Road running through the middle of the metropolitan area, there was an awareness of legal differences; for one thing, liquor and gas taxes are higher on the Kansas side and so is the likelihood of being stopped for a minor traffic infraction.  But not once did I hear a discussion of common law marriage, expect when I raised it in my family law class.

Grossbard finds that the state line matters.  Her statistical correlations show that, holding constant for demographic and other measurable factors, in the states that recognize common law marriage, female cohabitants work less outside the home.  Is she right?  I have no doubt that her statistical analysis is correct.  The question is whether she accurately captures the effect of the law or of differences among those states that recognize common law marriage versus those which do not.  Grossbard has attempted to control for things like the ability to afford a house on the Kansas side of the state line and easily measured attributes such as race.  The question is whether she can capture traits such as a preference for diversity (in which case one in more likely to live on the Missouri side) versus a preference for distance between neighbors (making Kansas residence more likely).  It is hard to test for these differences, but they may well correlate with the issue of whether unmarried female cohabitants have more traditional versus progressive attitudes and thus work outside the home.  On the other hand, she draws her data from a national sample, not just those unusual states whose borders transact a single metropolitan area.

This leaves Grossbard’s work as both simultaneously intriguing and frustrating.  When I read Peg Brinig’s current work, I see questions informed by legal analysis, rooted in vocabulary to which law professors are responsive.  When I read Grossbard’s work, I see questions framed by economists.  As a family law professor teaching at a law school within a few blocks of a state line, I spent a lot of time wondering about what difference the state line – and the corresponding differences in family law – meant.  Over time, I discovered that, at least then, second parent adoption was easier in Missouri while adoption without paternal consent was easier in Kansas, and that many people made very conscious decisions about where to live or give birth based on these differences.  I am prepared therefore to believe that common law marriage also makes a difference.  Yet, never being involved in a discussion of the issue, I remain a skeptic, though after reading Grossbard, that skepticism has moved from a conviction it did not make much difference to agnosticism about whether it might.

This ambivalence summarizes the current state of the interaction between law and economics.  Grossbard is a true economist.  She focuses on issues that have historically been the subject of economics such as price theory.  She uses an empirical methodology associated with rigor in economics that is off-putting to lawyers (as least those of us who glaze over at extended discussions for regression analyses).   She describes her theories in terms that do not necessarily ring through to lawyers, who are more focused on conscious thought processes than statistical correlations.  Yet, Grossbard, whether right or not, should get us to think again about things we take for granted.  Legal theorists assume that the law reflects different values.  We further assume that it affects case outcomes.  Does it also affect culture; that is, does it create feedback loops that reinforce behavior in ways that we cannot fully trace?  Grossbard’s work, like that of other economists who try to map statistical correlations, challenges our intuitive understandings of causality.  She suggests that the connections may not be at the conscious level and that we may not have figured at all the relationships between law and behavior.  Her work is worth reading for that reasons alone.

Within the realm of family law and policy, there are two worthwhile ways to read her work.  The first is quick and dirty.  Read the introduction to the book and to the chapters that interest you.  Look for the evidence she marshals that support your preconceived notions.  It is excellent footnote material and along the way it may get you to think twice about some of your preconceptions, but it will be a quick read.  For those more ingrained in empirical analysis, the question is how to translate Grossbard’s work into language that makes more sense to those of us engaged in family law.  What part would be more persuasive with a minor change in vocabulary?  And what part needs to be reconceived?

True interdisciplinary analysis requires something more than the simplification that law and economics, at its imperial height, promised.  Instead, it involves genuine integration of different forms of analysis into a shared discourse.  Law, as an applied field, offered the potential to supply the fulcrum that could integrate these various forms of analysis.  Today, instead, we seem to retreating to our disciplinary silos, with J.D./Ph.D.s forced to choose the discipline in which they hope to make their mark.  Grossbard’s work is economics – no question there.  The issue is the terms on which her discussion of the law can be framed to challenge legal scholars to address the issue: does law matter and, if so, can we measure its impact?

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Legal Recognition of De Facto Parents: Victory for Same-Sex Parents or Threat to Parental Autonomy

The LGBT community is celebrating two recent decisions from the highest courts in Maryland and New York recognizing non-biological “de facto parents” as legal parents. Slate and other media outlets have described these decisions as “overwhelming” victories for gay parents. Commentators also see these cases as part of the “ripple effect” of recognizing of marriage equality in Obergefell v. Hodges. After years of advocating for same-sex couples on a range of issues before both legislatures and courts, I am surprised at my reluctance to join the celebration. In questioning the wisdom of this trend, I tentatively and uncomfortably align myself with pro-marriage scholars and commentators who have long critiqued the recognition of de facto parenthood. I’m not pushing marriage but I think this new trend is unnecessary to protect same-sex families or other de facto parents and their children. I also worry that authorizing this kind of state intervention to overrule decisions of legal parents may have unintended consequences that should concern us all.

Maryland and New York join what is now a majority of states granting some or all parental rights to an adult who has acted in a parental role for some period of time but has not established legal parenthood through biology, adoption or marriage. Most states have also required that the relationship between the “de facto parent” and the child must be with the consent and encouragement of at least one legal parent. Both the New York and Maryland cases involved same-sex couples who had agreed to have a child together. The couples were unmarried at the time of the birth of their children, and the non-biological parents had not adopted the children. The relationship ends after some time in which both partners co-parented. After the break-up, the biological parents withheld access to the children and the conflicts ended up in court. Both the New York and Maryland courts reversed pre-Obergefell decisions and recognized “de facto parents.” Once recognized, de facto parents stand on equal footing with biological or adoptive parents in custody and visitation disputes.

Part of my skepticism about these decisions comes from questions about the continuing necessity of de facto parentage after Obergefell. Didn’t the Supreme Court’s establishment of marriage equality remove a major barrier to legal parenthood for same-sex couples, thereby making recognition of de facto parenthood less important? Indeed, one of the central arguments advanced by advocates and adopted by the Supreme Court was that allowing same-sex parents to establish families through marriage is essential to protect children. Justice Kennedy embraced these arguments in his majority opinion, finding that “Without the recognition, stability, and predictability marriage offers, [the children of same-sex parents] suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate children of same sex couples.”

I’m not joining the “marriage supremacy” folks; I’m just noting that decisions that establish the legal recognition of parentage without marriage (or biology or adoption) don’t seem to naturally flow from a decision that opens access to marriage to same-sex couples, in part, so that both parents can secure legal ties to their child. After Obergefell, same-sex couples should now have the benefit of marital presumptions and achieve legal parenthood by agreeing to conceive and raise a child together in the context of marriage. And, for those parents who choose not to marry, Windsor and Obergefell’s constitutional analysis should undermine any remaining state law barriers to applying existing parentage statutes to same sex couples or permitting second parent adoptions by non-biological parents. And if there are continuing barriers to applying the marital presumption or other parentage statutes to same-sex couples or to second parent adoptions by gay and lesbian partners, advocates should fight those battles rather than spreading the de facto parent doctrine.

So Obergefell made the fight for de facto parenthood less critical in securing the rights of LGBT parents. But what’s the harm of expanding the legal recognition of parentage? I worry about its impact on both parents and children, particularly poor parents who are already vulnerable to state overreaching. I am concerned about the erosion of parental autonomy when courts, upon a finding of de facto parenthood, can set the decisions of legal parents aside. Of course, some of the court opinions are drawn very narrowly. I’m comfortable with the court protecting the non-bio parent in the New York case by overruling the decision of the biological mother to exclude her former partner from their child’s life. Both parents had planned to conceive the child, raised the child together for two years and continued to co-parent after they broke up for another three years. New York, in fact, limits a finding of de facto parenthood to just these circumstances. A party seeking parental rights is only a de facto parent “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.”

 

But other states have adopted broader definitions. For example, Maryland now recognizes de facto parenthood as long as the biological or adoptive parent consented to a parent-like relationship and the non-biological parent formed a bond with the child. In Kentucky, a “de facto custodian” of a child can seek custody if he or she is “the primary caregiver, has provided financial support and has resided with the child for at least six months, and the child is under three years of age.” The residency requirement goes up to one year if the child is over three. In Colorado, a third-party can stand on equal footing with a parent in the “allocation of parental responsibilities” when the third-party “has had the physical care of a child” for at least six months and petitions the court within six months after the care has ended.

This expansion of the legal definition of parenthood makes me think about how some of the low income mothers I have represented might have fared under these statutes. The mothers who, after traffic stops unearthed warrants related to old drug possession charges, left their children in the care of a grandparent or a friendly neighbor while serving their sentences. After they were released from jail six months later, they faced custody battles from the third parties who had taken care of their children. Before recognition of de facto parenthood, my clients were presumed to have the right to decide whom their children should visit or live with, absent unfitness or other extraordinary circumstances. After recognition of de facto parentage, the grandparent or neighbor would be on equal legal footing with the mother under a best interests analysis. I also fear for the non-custodial fathers who might now be squeezed out of their kids’ lives after their children’s mothers’ ex- spouses are recognized as de facto parents without the fathers’ consent or participation.

Finally, as someone who generally favors rules over discretion in most areas of family law, I worry about the uncertainty that will result from the broader, vague definitions of de facto parent. Will it make already contentious child access disputes even more protracted and expensive? Or, worse yet, will the better-financed de facto parent always prevail over poorer, unrepresented legal parents? There is also great uncertainty about the legal rights and obligations that flow from this kind of parentage. In most jurisdictions, de facto parents can seek custody and/or visitation under a best interests standard on equal footing with the legal parent. But what if this designation creates three or four legal parents? Are they all on the same legal footing? And what about the implications of this for financial obligations to the child? Does the de facto parent also have to pay child support? If there is a third, legal parent, are his or her child support obligations reduced when a de facto parent enters the picture? Vague standards result in unpredictability and that leads to more disputes involving children.

Of course, for the petitioners in many of these cases, marriage or even second parent adoptions weren’t options at the time of the conception or birth of their children. And access to lawyers for adoption or any family law conflict is always a challenge. But courts can now send a clear message to loving, de facto parents who want to be assured of continuing their relationships with their children. To fully protect yourself and your child, you need to affirmatively establish yourself as a legal parent—marry your co-parent, petition under parentage statutes and/or adopt your child. I may be missing a lot here but that seems like reasonable family policy.

 

 

 

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A Comment on Dayid Cay Johnston’s The Making of Donald Trump By William K. Black Associate Professor of Economics and Law, UMKC

 

As a white-collar criminologist who teaches economics and law, I view Donald Trump as an absurd figure.  His scams are so crude, witness Trump University, that he is an embarrassment to con men in a time when the elite Wall Street fraudsters of the C-suites took down the global economy.  Trump is too small time and unsophisticated to rate the term scam “artist.”  What makes Trump’s rise so revealing about our Nation’s rot is that he has parlayed this equivalent of a “paint by numbers” scam non-artistry into a serious threat to becoming the next president of the most powerful nation in the world.  Our Nation has been run by some bad leaders, but never by a charlatan who is transparently a charlatan.  The real story of Trump, therefore, is what has become of America’s elites that someone who is a caricature of everyone’s crazy, nasty uncle could now become president.  `

David Cay Johnston is the perfect person to tell this story because he is the top expert on Trump, having covered him for decades as a reporter.  Johnston’s Pulitzer Prize winning body of work shares a common theme – it shows how corporate elites and their political cronies have become parasites of such magnitude that they are ruining the economy and ruining the middle and working classes.   His best known work is Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich–and Cheat Everybody Else (2003).

David Cay Johnston’s book tells us not only about Trump, but about our pathetic and predatory elites.  Those elites have not simply failed to stop Trump, many of them are aiding him because they know he is a third-rate con man.  Johnston’s introductory chapter gives us the example of Hugh Hewitt, the Republican talk show host that purports to exemplify “serious” Republican elites.  Johnston begins with what wonks know – Hewitt asked Trump in the December 2015 Republican debate about the “nuclear triad.” Trump’s answer made clear that Trump had no idea what the triad was, but equally importantly it made clear that he would not admit the fact, ask what Hewitt was referring to, and give a reasoned answer.  That incident made obvious why Trump is such an unsophisticated con – he is too lazy to do his homework, he is exposed by even simple questions, and rather than stop talking when he is making a fool out of himself, he goes on endlessly.

But then Johnston adds the key even very few wonks know.  Hewitt asked Trump the same question about the nuclear triad four months earlier on his radio show – and Trump’s answer was another witless whirl of words racing down a drain.  Hewitt’s question on his radio show about the “triad” was a simple question for anyone running for president – the equivalent of a 70 mph (not very) fastball down the heart of the plate that Trump should have been able to rip for a home run.  Hewitt, four months later, was now lobbing the exact same question to Trump to ensure that Trump would look like a heavyweight slugger on national security – and Trump proved he was so lazy and so uninterested in national security that he fanned on the question for a second time.

But here’s the key takeaway made clear by events after Johnston wrote his book.  Hewitt is continuing to act as Trump’s surrogate.  When Trump is on Hewitt’s radio show, Hewitt openly advises him how to correct his absurd responses when Trump raves.  Hewitt is supposed to represent the “thoughtful Republicans” seeking honest, intelligent leadership.  Johnston’s book shows us not only the innumerable ways in which Trump’s entire life is a mash-up of predation and lies – but the failure of the “conservative” “elites.”  These elites know that Trump represents what Lincoln would have called the worst “angels of our nature” – and support or at least refuse to stop his rise to power.  Trump would be our most corrupt president, but the real danger comes from those who are not lazy and are far brighter than Trump.  The sophisticated and far wealthier frauds are salivating at the prospect of using Trump to allow them to predate with impunity.  The elite banksters that led the epidemics of “control fraud” that caused the financial crisis have blazed that trail of impunity.  Thousands of wealthy predators are eager to widen that trail into the Drumpf autobahn.  Trump is their dream president because he is such a putz.

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David Cay Johnston’s The Making of Donald Trump — And the Unmaking of the Rule of Law

David Cay Johnston is part of a disappearing breed: an investigative reporter who spends months delving into the details of how the world works.  A frequent AALS speaker and Distinguished Visiting Lecturer at Syracuse University, Johnston won a Pulitzer Prize for his work on taxes – documenting how the tax system has changed to engineer huge payoffs for the rich at the expense of everyone else.  In the course of thirty years of investigating how the elite rig the system, primarily for The New York Times, Johnston developed a huge file on Donald Trump and as Trump sewed up the Republican nomination, Johnston drew on those records to write The Making of Donald Trump, released this August.

 

The book draws on decades of interviews, financial records, court documents, and public statements, to take a close look at Trump’s business dealings and rise to power.  Johnston has written extensively about Trump’s mob ties, his use of real estate investments to evade taxes, his gaming of the political system to profit financially from campaign contributions, and his personal values.  Johnston recalls telling anecdotes, such as Trump’s role in rewriting his father’s will to cut his brother’s widow and children out of the Trump fortune.  When the family sued, Trump had his brother’s son’s health insurance cut off in retaliation.  The child, who suffered from seizures and cerebral palsy, depended on the health insurance his grandfather had provided for him.

 

Johnston is at his best, however, in working through the financial picture.  He initially met Trump when he started to cover Trump’s role in Atlantic City casinos when Johnston was the Atlantic City bureau chief for the Philadelphia Inquirer.  Johnston quickly concluded that Trump knew little about the casino business.  By the early nineties, Johnston found that Trump’s casinos were poorly managed and often the first to fail.  He also detailed how Trump managed to get and hold casino licenses despite clearly established mob ties, prior investigations that he improperly failed to disclose, and other irregularities that should have led to disqualification from the casino industry.  What Johnston shows is that while Trump may not have known much about business, he clearly understood politics – as he threatened to build a competing casino in Manhattan, pressured New Jersey officials to cut short their investigations, and lied or shifted gears when it suited his purposes.  He very consistently has left the “little people” – and the public — holding the bag as he looked put own interests first.

 

As he did in Perfectly Legal, his book about the tax system, Johnston shows how Trump, like many of the new elite, have systematically undermined the very idea of the rule of law.  Trump threatens to sue anyone who crosses him, a trait Johnston suggests that Trump learned from Roy Cohn, and that he has experienced firsthand.  Johnston has also read the available documents and deposition transcripts from Trump litigation, and finds that they show consistent patterns.  Trump denies remembering unsavory associates with whom he once had close relationships.  When public officials press hard, he offers them things that they want, and wins their cooperation.  Johnston reports, for example, that New Jersey officials came to his rescue in his casino bankruptcies; they told creditors that if they foreclosed on Trump properties they would not receive casino licenses, thus pressuring the banks to restructure Trump’s debt on favorable terms.  And when litigants persevere, refusing to back down on cases that could embarrass him, Trump settles pursuant to secret agreements.  Trump has thus gotten away with flouting the rules that apply to everyone else.

 

Johnston is perhaps better suited to report on Trump’s taxes than almost anyone else, yet, like everyone else, he is left speculating as to what Trump’s undisclosed tax returns are likely to show.  Johnston has seen – and intensively studied – the tax returns Trump has disclosed in earlier litigation.  They show irregularities that could well constitute tax fraud, such as filing a return under the signature of a preparer who testified that he never saw the returns.  Johnston explains how the laws that deal with real estate depreciation make it possible for Trump to defer paying taxes indefinitely, effectively borrowing money at government expense that finances his billionaire life style.  He further questions whether Trump has given much to charity.  Perhaps most tellingly, Johnston was the first (in 1990) to question Trump’s true net worth, showing that while Trump claimed to be a billionaire, he had a negative net worth at the time.

 

Johnston’s book seeks to provide a window into Trump’s character.  The conduct of his political campaign has much in common with the tactics Trump has employed throughout his business career.  Yet, The Making of Donald Trump serves as well as an indictment of the legal system in an era of inequality.  Johnston shows how everything that can be manipulated will be manipulated by the likes of Trump.  He flouts the law, overwhelms underfunded government agencies, intimidates those who try to challenge him, and then settles the most serious allegations in secret deals that produce no lasting changes in his behavior or the conduct of his businesses.  And he has gotten away with this behavior his entire life.  Bill Black, in the accompanying post, asks why so few Republican elites have called Trump out for this behavior.  The answer is that while our elites are only too happy to support “broken windows” policing tactics that arrest the poor for minor offenses, they have contributed to a system that imposes little accountability on the wealthy.   The key to that system as Johnston demonstrates is that if you act as though you are rich and powerful, you can bend the legal system to serve your interests.  Black responds that the only way to combat such a system effectively is to discredit the behavior and to stigmatize those who engage in it.  Yet, Trump’s audacity in flouting the law is, as Black acknowledges, small bore in contrast with those who brought us the financial crisis and their ability to get away with it is a product of the same system.  That system starts by cutting the budgets of government agencies, as Ted Cruz has led the charge to undercut the IRS.   It allows banks (and billionaires) to become “too big to jail,” as public officials treat them as too important to the economy (or the Atlantic City casino market) to shut down entirely.  It allows lobbyists to insert special protections for the elite, whether the real estate provisions in the tax code that benefitted Trump or the Republican’s Congress’s first act in regaining control, which was to water down Dodd-Frank reforms to benefit Wall Street.  It has consistently shifted enforcement from criminal to civil venues, allowing Trump and those like him to control their own destinies.  And it no longer funds investigative reporting like that of David Cay Johnston, as news organizations pay more attention to the bottom line.  Johnston developed much of the information in this book from prior Trump investigations that became part of the public record.  Yet few people note that Trump’s fury at the judge, Gonzalo Curiel, he tried to discredit because of his Mexican-American heritage came from a decision to make some of the fraud proceedings that involve Trump University public.  Trump’s racist remarks have received substantial coverage overshadowing the documents themselves.  Yet, what both effective law enforcement and good investigative journalism do to shine light on the behind the scene maneuvers that undermine the rule of law.  We are all worse off for the systematic decay of these public systems of accountability.