Making Cost Sharing Fairer and More Effective

Christopher T. Robertson, Scaling Cost-Sharing to Wages: How Employers Can Reduce Health Spending and Provide Greater Economic Security, 14 Yale J. Health Pol’y L. & Ethics 239 (2014), available at SSRN.

While many popular policies that require individuals to share the costs of their health care can be counter-productive, as when high deductible health insurance plans discourage people from seeking necessary care, Christopher Robertson’s “scaled cost-sharing” proposal offers considerable promise.

Robertson observes that employers typically use a one-size-fits-all approach to the cost-sharing features of their health insurance plans. Whether workers earn $40,000 or $400,000, they face the same deductibles, copayments, and other cost-sharing features that kick in when individuals seek care. In particular, these cost-sharing requirements come with an annual cap on out-of-pocket spending that is the same for all employees. Plans that cap out-of-pocket spending at $5,000 apply that cap to all workers, and plans with $10,000 caps also apply their cap to all workers. The Affordable Care Act (ACA) reinforces the practice of standard caps with its maximum amounts for in-network, out-of-pocket spending. Continue reading "Making Cost Sharing Fairer and More Effective"

 
 

Judicial Competition for Case Filings in Civil Litigation

Daniel Klerman & Greg Reilly, Forum Selling, USC Center for Law and Social Science Research Papers Series No. CLASS14-35, available at SSRN.

Scholars have extensively explored how outcomes in civil litigation can hinge on an adjudicator’s identity, institutional affiliation, and location. Judges bring varying perspectives and experiences to the bench that may color their assessment of factual contentions and legal arguments. Jurisdictions have idiosyncratic rules and customs. Geography often imposes burdensome participation costs, unique local norms, and distinct jury pools. Different courts therefore might reach inconsistent conclusions in otherwise identical cases. Lawyers pay close attention to these differences and try to exploit them using tactics that are often derisively described as “forum shopping.”

Although lawyers are active shoppers, observers are loath to think of judges as active sellers. We expect zealous lawyers in an adversarial system to exploit available advantages. But we take comfort in conceiving of those advantages as arising from inevitable variations among courts rather than through deliberate competition among judges. From this perspective, judges should be agnostic about where cases are filed (assuming filings comply with applicable laws), even as they operate within a system in which forum choice matters to litigants. If judges are agnostic, then the term “forum shopping” would be misleading given the absence of a market. Lawyers would be shopping for courts only in the sense that birds shop for trees in which to build nests. Trees might benefit from hosting birds and may be well-adapted to attract them, but a tree’s allure is not a product of conscious choices amenable to criticism and reconsideration.

But if lawyers react to incentives that judges deliberately provide, then the shopping metaphor would be more potent and the judicial competition potentially more unseemly. The existence of judicial sellers enticing party buyers would raise at least two difficult questions. First, what is the normative justification for allowing a judge’s desire to increase local filings to influence judicial decisionmaking? Second, what corrective measures are necessary to prevent or mitigate abuse? These are among the many questions that Daniel Klerman and Greg Reilly explore in their thoughtful new manuscript Forum Selling. Continue reading "Judicial Competition for Case Filings in Civil Litigation"

 
 

Getting Theoretical About Judge Posner’s Legal Pragmatism (Thanks to John Dewey) and the Implications for Constitutional Interpretation

Michael Sullivan & Daniel J. Solove, Radical Pragmatism, in The Cambridge Companion to Pragmatism 324 (Alan Malachowski ed., 2013), available at SSRN.

Constitutional interpretation debates generally do not focus on legal pragmatism. They often match originalism against living constitutionalism. Several U.S. Supreme Court justices, such as Justice Scalia and Justice Thomas, have openly embraced originalism. Others, such as Justice Sonia Sotomayor, see the Constitution as an evolving document, sharing views similar to former Justice William Brennan (and perhaps to Ronald Dworkin’s moralism). Alternatively, several scholars, such as Thayer and Vermeule, argue that only “clearly” unconstitutional laws should be invalidated. In addition, “popular constitutionalists” such as Larry Kramer urge the Supreme Court to be restrained and allow constitutional interpretation and change, if any, to arise from the grass roots. But pragmatism is another important method of constitutional interpretation. Justice Stephen Breyer is the Court’s most prominent pragmatist. Pragmatism, however, is often criticized as an empty anti-theory.

Yet, Professors Michael Sullivan and Daniel Solove have provided a great service by authoring an essay which shows that judicial pragmatism is not theoretically rudderless—it has normative components. Sullivan also authored a valuable book about legal pragmatism. Though their essay addresses questions of legal philosophy, it has enormous significance for constitutional law as will be shown. Indeed, pragmatism may better describe the reality of the U.S. Supreme Court’s constitutional interpretive approach than the sophisticated theories mentioned above, as the Court’s hardest cases are often decided by policy and practical considerations. These considerations trump because the tough cases usually involve an ambiguous text and history, as well as conflicting judicial precedents. Sullivan and Solove accomplish their task by relying on the philosophical pragmatism of John Dewey, and other arguments, to question various components of prominent Judge Richard Posner’s legal pragmatism. They critique Judge Posner’s supposed value neutral consequentialism, his view of the democratic process, his conception of philosophizing, and what they see as Posner’s status quo conservatism on many issues. Sullivan and Solove advocate a more critical approach towards the status quo’s views of constitutional principles such as equality, liberty, justice, and the democracy that results. In short, Sullivan and Solove embrace a thicker notion of the good and of democracy than Judge Posner. Continue reading "Getting Theoretical About Judge Posner’s Legal Pragmatism (Thanks to John Dewey) and the Implications for Constitutional Interpretation"

 
 

Surveying the Field: The Role of Surveys in Trademark Litigation

Shari Seidman Diamond & David J. Franklyn, Trademark Surveys: An Undulating Path, 92 Tex. L. Rev. 2029 (2014).

Trademark surveys have traditionally been seen as a core element of any trademark infringement or dilution dispute. How else would we discover, the theory goes, whether the typical consumer is confused about the source of a particular product, believes the prestige of a famous mark to have been diluted, or considers a once valid mark to have become generic?

Recent empirical work, focusing on published judicial opinions, has debated whether surveys have indeed played as significant a role as some have asserted or whether they are generally disregarded by courts, perhaps in favor of judges’ own intuitions. In a recent symposium contribution published in the Texas Law Review, Shari Seidman Diamond and David J. Franklyn help to expand the field. Because published opinions tell only part of the story, Profs. Diamond and Franklyn surveyed trademark practitioners in an attempt to discover how surveys are used in early stages of legal disputes. The results provide some useful food for thought both for trademark practitioners and for empirical legal scholars. Continue reading "Surveying the Field: The Role of Surveys in Trademark Litigation"

 
 

How to Use Economics

Ha-Joon Chang, Economics: The User’s Guide, Pelican Books (2014).

The Cambridge economist Ha-Joon Chang has contributed to a new series of Pelican Introductions a user’s guide to economics, with the novel objective of creating a class of “active economic citizens.” (PP. 457, 460.) His objective opposes the prevailing attitude that economics is a science that must be left to the experts. Throughout his book he seeks to debunk the presumed scientific status of economics. This then provides the platform for his mission statement: “If there is no one right answer in economics, then we cannot leave it to the experts alone. This means that every responsible citizen needs to learn some economics.” (P. 5.) Without wishing to challenge Chang’s grand ambition for the general citizenry, my concern here is to consider the book from the perspective of a subset of users of economics, lawyers and legal theorists. Incidentally, I shall also refer to a more specialist subset, economists themselves.

The book takes the form of a narrative encyclopaedia, readable but densely informative. One of Chang’s motivating concerns is that economic discussion should be grounded in hard facts, and these are plentifully provided—frequently upsetting cherished orthodoxies that have assumed an almost intuitive appeal. Notably, the facts are brought to bear against the belief that modern economic prosperity has depended upon free trade. Chang convincingly demonstrates that nothing could be further from the truth. (PP. 49, 60-61, 64-65, 71, 82, 94, 400, 402, 408-10, 430-31.) Yet the facts, for Chang, do not lead to an empirical standing for the discipline of economics. It is ineluctably swayed by political and moral considerations. (PP. 112, 164, 176, 438, 451-52.) The market itself is constrained or permitted in accordance with these factors. (PP. 312, 387, 393-96, 437, 452.) Continue reading "How to Use Economics"

 
 

The Limited Vision of Neoliberal Family Law

Anne Alstott, Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the Minimal State, 77 Law & Contemp. Probs. 25 (2015), available at SSRN.

The problem of economic inequality has become a staple of news, social media, and public commentary particularly since the aftermath of 2008 financial crisis. The growing gap between the one percent and the rest provided an issue around which public protests such as the Occupy movement could be organized. And while addressing the many effects of inequality is complicated in its particulars, the need for redistribution as a central legal and policy value has been evident to critical scholars. Redistribution in the form of better social safety nets, a more progressive taxation scheme, and the closing of loopholes all have become more commonplace policy prescriptions, although legislation on these issues has been slow to materialize. Family law scholars and activists have also suggested that reforming policies to ensure more support to families, such as paid family leave and assistance with child care, would also have beneficial effects for working parents and the country’s economic bottom line.1 Even as the United States lags behind all other industrial nations and many developing ones in providing these supports, legislating changes aimed at providing resources that “make family life possible” has been remarkably difficult. The question that lingers is why?

Anne Alstott’s essay, Neoliberalism in in U.S. Family Law, offers an answer. Alstott argues that neoliberalism, which she defines broadly as a commitment to free markets and laissez-faire economics coupled with a commitment to negative liberty and a minimal state, makes it nearly impossible to claim any positive rights and distribution of resources from the government. She explores the pervasiveness of neoliberalism in three areas of family law –federal constitutional law, state family law, and federal and state welfare law — deftly drawing connections among these discrete doctrinal fields to advance her central argument: Continue reading "The Limited Vision of Neoliberal Family Law"

 
 

A Queer Story of Same Sex Marriage

Michael Boucai, Glorious Precedents: When Gay Marriage Was Radical, 12 Yale J.L. & Human. 101 (2015).

Michael Boucai’s new article, Glorious Precedents: When Gay Marriage was Radical, explores same-sex marriage in an era when “gay liberation” rather than “gay rights” described the aspirations of a movement aimed at revolutionizing American life. Through detailed archival and interview based research, Boucai offers a delightful recounting of the first three cases to produce reported judicial opinions denying gay marriage in the United States: Baker v Nelson, Jones v Hallahan, and Singer v Hara (all of which were decided in the early 1970s). His unfolding of marriage litigation in the post-Stonewall years captures the historical texture of these initiatives and the individuals that commenced them, but more importantly it reveals an account of the pursuit of gay marriage and its radical potential that differs significantly from the same sex marriage movement in its contemporary form.

According to Boucai, despite criticisms of the same sex marriage movement as assimilating for sexual minorities and reifying of problematic social institutions, these first cases were much more about gay liberation generally than gay marriage specifically. His documentation of the stated ambitions of the three couples, the legal arguments advanced by their lawyers, and details of the sexual and domestic lifestyles and the activist activities engaged in by many of the litigants persuasively disrupts the dominant account of early marriage litigation as out of step with the radical spirit of gay liberation at the time. Interestingly, Boucai’s account re-politicizes the litigant couples – as couples – by, in part, desexualizing them. For two of the couples, theirs was neither a story of romantic love, nor even a story of notable sexual attraction. Rather, it was coupledom based on political aspirations, friendship, and shared worldviews. For them the litigation – which everyone accepted “stood no chance of winning” – was rooted not in a desire to marry, nor a desire for state sanction and recognition of the value of their love and affinity for one another, but in efforts to challenge the gendered oppression perpetuated by the institution of marriage and to perform their same sex relationships in public and confrontational ways. Continue reading "A Queer Story of Same Sex Marriage"

 
 

Finding Old Puzzles in New Places

Adam Hosein, Are Justified Aggressors a Threat to the Rights Theory of Self-Defense? In How We Fight (Helen Frowe & Gerald Lang eds., 2014).

At an informal philosophy workshop on self-defense I attended, the participants noted that their theorizing is relevant to everything from war to torts to preventive detention, but, they reflected with surprise, their work is less important to the criminal law of self-defense. The reason for this is somewhat simple—because the law adopts bright line rules and relies on the defender’s reasonable beliefs, many of the nuances articulated by philosophers are lost.

Adam Hosein’s book chapter is likewise not primarily a contribution to criminal law’s conception of self-defense, but it is a contribution to criminal law’s understanding of necessity. In the guise of questions about the applicability of self-defense to just war theory, Hosein’s piece ultimately has bearing on the criminal law puzzle of lesser versus least evil. Continue reading "Finding Old Puzzles in New Places"

 
 

Spanking the Money

Annemarie Bridy, Internet Payment Blockades, 67 Fla. L. Rev.__ (forthcoming 2015), available at SSRN.

A popular culture aphorism which is useful for teaching or comprehending intellectual property laws is “follow the money.” Often a law or a court decision only makes sense when its financial implications are contextualized. In this interesting, clear and engagingly well-written article, Professor Annemarie Bridy of the University of Idaho College of Law looks at how and why monetary transactions can be stopped cold in cyberspace by financial institutions that initially appear to be acting against their own business interests, but are actually submitting to unseen authority of questionable legitimacy. It is a story of commoditized sex, online sales of illegal drugs, and copyrighted rock and roll.

At the outset, Bridy positions her account of Internet payment blockades in the context of scholarship about powerful corporate actors doing the government’s bidding as the result of behind-the-scenes pressure. She credits Ronald Mann and Seth Belzley with important observations about “how concentration and high barriers to entry in the market for payment processing make payment intermediaries a ‘highly visible ‘choke point’ for regulatory intervention.’” (P. 4, citing to Ronald Mann and Seth Belzley, The Promise of Intermediary Liability.) She further notes in her introduction that: “Public-private regulatory cooperation of this sort goes by many names in the First Amendment literature, including proxy censorship soft censorship, and new school speech regulation,” citing to relevant works by Seth Kreimer (Seth F. Kreimer, Censorship by Proxy), Derek Bambauer (Derek E. Bambauer, Orwell’s Armchair), and Jack Balkin. (P. 5.) Continue reading "Spanking the Money"

 
 

Expanding Our Understanding of Narrowing Precedent

Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861 (2014).

Richard Re’s recent essay, Narrowing Precedent in the Supreme Court, identifies and examines the judicial technique of narrowing precedent as a practice that is meaningfully distinct from other ways of dealing with precedent, such as distinguishing, following, and overruling. The essay is gracefully written, carefully argued, and generative of insights and additional arguments.

In Re’s taxonomy of how courts use precedent, narrowing means “not applying a precedent when it is best read to apply.” Thus understood, narrowing contrasts both with following precedent (“applying a precedent when it is best read to apply”) and also with distinguishing precedent (“not applying a precedent where it is best read not to apply”). According to Re, narrowing is also distinct from overruling. Unlike the overruled precedent, the narrowed precedent remains available for future application, though within a narrower compass. Continue reading "Expanding Our Understanding of Narrowing Precedent"

 
 

Governance by the Sword

Etiquette guides suggest that one has a year from the wedding to send a gift. I just read Larry Cunningham’s elegant article published precisely a year ago. So I’m on time to comment.

This piece addresses the explosion in the federal government’s use of deferred prosecution agreements (DPAs) in combatting corporate crime, a phenomenon that has increasingly become the subject of debate, at least in part because of the extraordinary fines that typically constitute a part of these deals. The corporate (or, as Larry corrects the record, partnership) death of Arthur Andersen, and enforcement in the pharmaceuticals industry (where conviction can lead to exclusion from federal health care programs to the detriment of patients) have made prosecutors sensitive to the collateral damage they can cause by indicting and trying (or obtaining guilty pleas from) corporations suspected of misconduct. Much of the literature focuses on the potential abuses inherent in the use of DPAs, which have a fitful history of prescribed guidelines and standards, and which present significant potential for prosecutorial abuse due to the one-sided nature of the bargain. (Among the abuses have been mandated—sorry, bargained-for—waivers on behalf of employees of work product and attorney-client privileges.) Further concern has been their secrecy, precluding interested corporations from tailoring compliance to address prosecutor’s concerns. While commentators see the utility of these agreements in avoiding litigation costs and achieving some measure of deterrence (in addition to avoiding collateral damage), much of the analysis has been negative.

Larry has taken a practical and sensible approach to the problem. DPAs can be useful, he tells us, but only if prosecutors approach the negotiation and structuring of an agreement as a governance problem. Ever since the 1996 Delaware Caremark decision, Delaware law at least formally has required that its corporations structure governance in a manner that discourages unlawful conduct and that makes it detectable when it occurs. Sarbanes-Oxley supplemented this approach with its own regulations. And who better to understand the governance of any particular corporation than its own board and executives? Yet, as Larry shows us, principally through his examination of the travails of AIG during the middle of the first decade of this century, prosecutors can be less than thoughtful about the appropriate, compliance-ensuring governance regime for any particular corporation. He rather convincingly demonstrates that AIG’s role in the financial crisis may well have been a direct consequence of the standardized “best practices” corporate governance regime imposed under Arthur Levitt’s supervision. (I point out that his knowledge of AIG is as a result of a book he co-authored with Hank Greenberg, who has a dog in this particular hunt, but Larry’s careful and scholarly approach give me confidence in the veracity of his reporting.) Continue reading "Governance by the Sword"