Academic Round-Up

Brian Galle (Florida State University College of Law) and Ethan Yale (Georgetown University Law Center) have posted an essay on SSRN entitled “Can Discriminatory State Taxation of Municipal Bonds Be Justified? Thoughts on the Davis Topside Briefs,” see here. This essay continues their look into the Department of Revenue of Kentucky v. Davis case that will be argued this fall. As you may recall, the issue in Davis is whether Kentucky can constitutionally tax interest on federally tax-exempt bonds issued outside of the state, while exempting from taxation bonds issued by the State of Kentucky and its political subdivisions. This paper is heavy on the economics of municipal bonds, but will be interesting for folks closely following the case.

Craig Green (Temple University-Beasley School of Law), whose work Lyle has highlighted in the past, see here, has a new article posted on SSRN entitled “Repressing Erie’s Myth,” see here. Among other things, this article weighs in on the role of customary international law in federal court, which was discussed previously in an article by Judge William Fletcher published in In Brief, the online journal of the Virginia Law Review, see here. Green claims that many scholars, and all nine Justices in Sosa, have overstated Erie‘s effect on customary international law in federal courts. The article also suggests that “federal common law” has played an unnoticed role in lawsuits over the Detainee Treatment Act and military commissions.

James J. Brudney (Ohio State University-Moritz College of Law) has posted “Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect” on SSRN, see here. Brudney finds that, though liberal Justices rely on legislative history more often than their conservative counterparts, they do so to support pro-employer outcomes at least as often (and perhaps even more often) as pro-employee outcomes in employment and labor law cases. In other words, Brudney argues that Justices such as Brennan, Marshall and Stevens have used legislative history in a principled fashion. Since 1985, however, the use of legislative history has largely been in pro-employee opinions due to the necessity of keeping Justice Scalia’s vote in cases that come out the other way. I want to give this paper much greater thought, but it is worth mentioning because it reaches some provocative conclusions.