Denigration as Forbidden Conduct and Required Judicial Rhetoric

Steven D. Smith, The Jurisprudence of Denigration, U.C. Davis L. Rev (forthcoming, 2014), available at SSRN.

Steven D. Smith has written another characteristically challenging paper. I fear that the paper, “The Jurisprudence of Denigration,” will be accepted without cavil by those who tend to disagree with decisions like United States v. Windsor or Lawrence v. Texas, and rejected without hesitation by those who champion those decisions. Either move would be unfortunate. This is a paper that says something important about the nature of modern constitutional and moral rhetoric surrounding hot-button social issues, and the uneasy position of judges and scholars as they attempt to find legally serviceable language with which to address social controversies in real time.

The paper’s argument has wide-ranging implications but is blissfully clear and simple. In Windsor, Justice Kennedy argued that section 3 of the Defense of Marriage Act was the product of “a bare congressional desire to harm a politically unpopular group”—that it came from a “purpose . . . to demean,” “injure,” and “disparage.” As Smith writes, “Justice Kennedy and the Court thereby in essence accused Congress—and, by implication, millions of Americans—of acting from pure malevolence.” This “extraordinary claim” forms part of a “discursive pattern” by judges and scholars that Smith calls “the discourse of denigration.” And it is wrong and dangerous. “Precisely contrary to its irenic and inclusivist intentions, by maintaining and contributing to that destructive discourse, the Supreme Court aggravates the conflict that is often described, with increasing accuracy, as the ‘culture wars.’”

At this point I can envision the supporters of Winsdor hastily yanking on the cord and seeking to get off the bus. But they should stick around, because Smith has some larger, interesting claims to make. Those claims do not require one to abandon support for Windsor or LGBT rights, but simply to ask how the Court gets there. Kennedy may have been arguing, Smith suggests, “that to disapprove of homosexual conduct is to declare or deem persons prone to such conduct to be in some sense lesser or inferior beings.” But that is a logical fallacy: “From the fact that a person is inclined to some behavior deemed immoral [by others], . . . it simply does not follow that the person is in any sense a lesser or inferior human being. And while those who disapprove of some behavior as immoral may believe that people who engage in the behavior are lesser human beings, they need not believe any such thing.” Even if supporters of DOMA and similar laws actually do regard gays and lesbians as “in some sense lesser human beings,” that still does not prove ineluctably that they are acting from a bare desire to harm those individuals. Continue reading "Denigration as Forbidden Conduct and Required Judicial Rhetoric"

 
 

Rethinking the Role of Agencies in Private Regulatory Enforcement

David Freeman Engstrom, Agencies as Litigation Gatekeepers, 123 Yale L. J. 616 (2013).

Over the past several decades, many scholars have weighed in on benefits and detriments of authorizing private parties to sue to enforce federal regulatory standards. They often take either of two opposing positions: Some argue that private enforcement is necessary to supplement underfunded and perhaps captured agency enforcement mechanisms; others contend that private enforcement undermines social welfare or even statutory goals by sacrificing officials’ prosecutorial discretion not to pursue cases that, while technically justified, would not further regulatory goals. Few scholars, however, have written about the trade-offs triggered by a choice between public and private enforcement.

In Agencies as Litigation Gatekeepers, David Engstrom views the issue as one of when and how agencies should control the use of private enforcement. He is not the first to write about vesting agencies with such gatekeeper functions. But, others who have written on the subject generally have done so within the context of a particular regulatory program or litigation regime. Agencies as Litigation Gatekeepers views the structure and control of private enforcement as a unique kind of regulatory problem that extends potentially to every regulatory program. Doing so allows the article to develop some theoretical insights into how private enforcement might be structured and how agencies might best further the use of private enforcement mechanisms. Continue reading "Rethinking the Role of Agencies in Private Regulatory Enforcement"

 
 

Employer Retaliation Policies and the Retaliation Catch-22

Deborah L. Brake, Retaliation in an EEO World, 89 Ind. L.J. 115 (2014).

Whistleblowers and workplace retaliation victims continue to make headlines in the national media. From Edward Snowden to NFL players Chris Kluwe and Jonathan Martin, employees who speak out against what they perceive as employer or coworker wrongdoing often generate significant disagreement among the public. Professor Deborah L. Brake has done as much as anyone in legal scholarship to highlight some of the limitations of workplace retaliation law. Her most recent article on the subject sheds light on a relatively unnoticed limitation.

One of the more frequent criticisms of the courts’ handling of retaliation claims is the standard to which retaliation plaintiffs are held. An individual who is retaliated against for opposing unlawful discrimination need not establish that the conduct opposed was actually illegal under federal law. Instead, the individual must simply establish that she reasonably believed that the conduct complained of was unlawful. If a reasonable employee would not have believed that the employer’s conduct was illegal, the employee’s conduct is unprotected under the law and the employer is free to retaliate against the employee for the employee’s opposition. As Brake notes, much of the criticism to date has focused on the fact that courts tend to hold retaliation plaintiffs not to the standard of a reasonable employee, but to that of a reasonable employee who has taken a law school course on employment discrimination, thus leaving many employees unprotected when they oppose what they believe to be discriminatory conduct. Continue reading "Employer Retaliation Policies and the Retaliation Catch-22"

 
 

The Supreme Court Flunks Again

John H. Langbein, Destructive Federal Preemption of State Wealth Transfer Law in Beneficiary Designation Cases: Hillman Doubles Down on Egelhoff, Vand. L. Rev. (forthcoming, 2014), available at SSRN.

Nearly twenty-five years ago, Professor John Langbein published an article with the arresting title The Supreme Court Flunks Trusts. The article critiqued the U.S. Supreme Court’s decision in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), a decision which, as Professor Langbein explained, “rest[ed] on an elementary error in trust law” (P. 208) producing “a nonsense reading of ERISA” (P. 209). The article’s reasoning was compelling, and particularly devastating was the article’s conclusion (PP. 228-9):

. . .Bruch is such a crude piece of work that one may well question whether it had the full attention of the Court. I do not believe that [the justices] would have uttered such doctrinal hash if they had been seriously engaged in the enterprise. . .

I understand why a Court wrestling with the grandest issues of public law may feel that its mission is distant from ERISA. The Court may increasingly view itself as having become a supreme constitutional court, resembling the specialized constitutional courts on the Continent. If so, the time may have come to recognize a corollary. If the Court is bored with the detail of supervising complex bodies of statutory law, thought should be given to having that job done by a court that would take it seriously. . .

In 2013, the Supreme Court flunked again, this time with the laws of succession and restitution. The case was Hillman v. Maretta, 133 S.Ct. 1943 (2013). Professor Langbein has again penned a valuable and withering critique. It is a must-read. Continue reading "The Supreme Court Flunks Again"

 
 

Vanishing into the Ether: Link Rot and Disappearing Precedent

Every first-year law student is taught the importance of citing to the materials relied upon to make a legal argument. Opposing counsel and the judge should be able to retrieve the materials cited and determine whether the materials support the argument put forth. At first blush, citation to materials on the internet would seem to make retrieval easier. Lawyers no longer have to go to a library or dig through a database to find the cited materials. However, a fairly high number of these citations are being lost to link rot, that annoying instance when you click on a link and what you are looking for is no longer available.

Raizel Liebler and June Liebert conducted a study of internet links contained in Supreme Court of the United States (hereinafter “SCOTUS”) opinions from 1996–2010 and found that, shockingly, 29% of links in the opinions either led to nothing or did not lead to the information discussed in the opinion. With stare decisis as a foundational principle of American law, it is disturbing to consider how the underlying basis of court opinions may be disappearing at a rate much higher than anticipated. The consequences for lawyers and researchers seeking to understand the legal analysis contained in a court opinion are profound. Continue reading "Vanishing into the Ether: Link Rot and Disappearing Precedent"

 
 

Empirical Link Rot And The Alarming Spectre Of Disappearing Law

Something Rotten in the State of Legal Citation trumpets an important alarm for the entire legal profession, warning us that given current modes of citing websites in judicial cases create a very real risk that opinion-supporting citations by courts as important as the United States Supreme Court will disappear, making them inaccessible to future scholars. The authors of this important and disquieting article, Raizel Liebler and June Liebert, both have librarianship backgrounds, and they effectively leverage their expertise to explicate four core premises: Legal citations are important; web based legal citations can and do disappear without notice or reason; disappearing legal citations are particularly problematic in judicial opinions; and finally, to this reader’s vast relief, there are solutions to this problem, if only the appropriate entities would care enough to implement them.

Denoting the disappearing citation phenomenon with the vivid appellation “link rot,” Liebler and Liebert explain that the crucial ability to check and verify citations is badly compromised by link rot, and then demonstrate this with frankly shocking empirical evidence. According to their research: Continue reading "Empirical Link Rot And The Alarming Spectre Of Disappearing Law"

 
 

“The Only Thing We Have To Fear Is Fear Itself”: How Physicians’ Exaggerated Conception Of Medical Malpractice Liability Has Become The Real Problem

Myungho Paik, Bernard Black, & David A. Hyman, The Receding Tide of Medical Malpractice Litigation:  Part 1—National Trends, 10 J. Emp. Legal Stud. 612 (2013) available at SSRN.

Physicians continue to talk about the “Medical Liability Crisis” and physician-funded advocacy groups continue to push for additional and further-reaching liability-limiting reforms.  Yet although the prize advocates seek (tort reform!) has remained the same for decades, the justification for why tort reform is needed has undergone a subtle metamorphosis.  For a while, reformers argued that liability limits were needed because the problem of medical injury was grossly exaggerated—medical injury was a problem mostly ginned up by plaintiffs.  But then, the Institute of Medicine’s (IOM’s) groundbreaking 1999 study, To Err is Human, came along.  Estimating that between 44,000 and 98,000 Americans die in hospitals each year as a result of preventable medical errors, the IOM’s study took the wind out of that argument’s sails.  Undaunted, reformers changed their tune.  Tort reform was needed, reformers insisted, because, even if medical injury is all too real, medical liability is random, as decisions are untethered to the underlying merits of claims.  In 2006, however, that argument encountered a major setback.  David Studdert and co-authors published a groundbreaking study of 1,452 medical malpractice claims which convincingly debunked the litigation lottery story.  Some claims that don’t involve errors are indeed filed, they found.  But such claims do not typically result in payment.  Undeterred, another reason to resist medical liability has taken center stage:  the problem of defensive medicine.

Defensive medicine refers to instances when physicians, concerned about liability, test or treat despite the lack of medical necessity, as well as times physicians decline to provide particular services or accept certain individuals as patients for fear of liability.  A prototypical example might be a doctor who orders a CT scan, not because he believes it’s medically warranted but because he believes it’s prudent in light of the liability risk.  This behavior, some now say, imposes medical liability’s biggest cost.  Though numbers are hard to pin down (as it’s hard to discern whether that CT scan was really ordered to protect the physician from liability, as opposed to helping the patient or, perhaps, even padding the physician’s paycheck), defensive medicine appears to be widespread.  One recent survey found that 93% of physicians in high-risk specialties reported providing care that they thought was unnecessary.  And, respected academics suggest its price tag is high—roughly $45.6 billion per year.  Pointing to these statistics, some reason:  (1) defensive medicine is a huge problem, and (2) in order to rein in defensive medicine, we need to dramatically reduce medical malpractice liability—or, perhaps, dismantle the present system of compensation for medical injury.  That argument, in fact, appears to be gaining ground. Continue reading "“The Only Thing We Have To Fear Is Fear Itself”: How Physicians’ Exaggerated Conception Of Medical Malpractice Liability Has Become The Real Problem"

 
 

The Influence of Experts

Mai’a K. Davis Cross, Rethinking Epistemic Communities Twenty Years Later, 39 Rev. of Int’l Studies 137 (2013).

Why do certain ideas gain traction in policy debates? Regardless of one’s field of study, this question cannot be ignored. The challenge is where to look for answers. The 2013 article by political scientist Mai’a Davis Cross, Rethinking Epistemic Communities Twenty Years Later, is one new and relevant resource in this quest. For more than a decade international tax scholars have drawn on the work of international relations (IR) theory and scholarship. In part, this attention by the tax community was out of necessity. Although it was apparent that international tax policy was subject to and the product of the same basic forces animating the classic subjects of IR study (e.g., military, trade, and environmental policy) tax policy formation traditionally has received scant attention from this branch of political science research. Yet the ideas being developed in IR theory would prove important to a serious and sophisticated understanding of “international tax relations.” Thus, international tax scholars began looking across the divide of research fields to consider the value added from the IR theory work of political scientists such as Cross.

Rethinking Epistemic Communities emerges from one broad strand of IR theory, cognitivism, which explores how we know what we want, what we value, and what we seek. That is, even if much of international relations activity concerns the use of power and/or bargaining games to secure “desired” outcomes, how do countries and other key actors determine what they want? Certainly in some cases the parameters of what a country seeks to achieve may seem relatively clear, but in many others the outcome or at least its particular form, is less obvious. Under the broad umbrella of cognitivist theory, scholars devoted increased attention to the concept of “epistemic communities”– the idea of a “community of experts” who through their own internal standards might develop some measure of “consensus” on an issue. Because of the recognized special knowledge of this community, the consensus ultimately would be influential in shaping outcomes sought by decision. The prototypical epistemic community was a science “community” coalescing around a solution to a problem that would form the basis of international agreement among a number of states. But international tax policy seemed a fertile ground for exploring the potential influence of epistemic communities. Who is formulating ideas of successful or sensible international tax policy? When and how do they achieve credibility? Does the epistemic community model fit? Continue reading "The Influence of Experts"

 
 

Distinguished Precedents

What is the scope of precedent? It is a fundamental question in American law that has proven difficult to answer with precision. As courts, especially the Supreme Court, have increasingly crafted long, often rambling, opinions, it has become more difficult for other courts to interpret such judgments. Adam Steinman’s recent article, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, offers a key insight and valuable contribution toward explaining how courts should apply prior precedents to new facts.

The basic distinction Steinman draws in understanding stare decisis is between the rules stated by the precedent-setting court and the results reached by the precedent-setting court. In focusing on results (what Steinman terms “inferential stare decisis”), a court justifying its present judgment must reconcile its holding with the outcome of every precedential court opinion. Steinman, in contrast, argues that courts should not be obligated to conform their decisions with the results of prior binding opinions, but rather must follow the rule(s) articulated by the prior court. This approach decreases the constraining effect of prior decisions in one way, but increases their constraining effect in another. Future courts are less constrained in that they are not required to reconcile their decisions with the mere results of earlier ones. But they are more constrained in that, where the precedent-setting court has stated a rule, the future court cannot simply point to factual differences between the two cases and disregard the rule entirely. It would need to articulate a distinguishing rule that justifies a different result. Continue reading "Distinguished Precedents"

 
 

Defending Defending, with Integrity

How Can You Represent Those People? (Abbe Smith & Monroe H. Freedman eds., 2013).

Every criminal defense lawyer has been asked The Question: “How can you defend those people?” Even lawyers who do not represent persons accused of crimes have undoubtedly had to deal with the indignation directed at the lawyers representing the most recent high-profile, presumed-guilty defendants—O.J. Simpson, the detainees at Guantánamo Bay, alleged “American Taliban” terrorist John Walker Lindh, the Oklahoma City federal building or Boston Marathon bombing suspects, the man accused of being the guard known as “Ivan the Terrible” at the Treblinka concentration camp. The Question is about moral agency. How can you, an ordinary person, not only associate with but also actively assist terrible people in escaping punishment for terrible crimes?

Abbe Smith and Monroe Freedman have both written eloquently in answer to The Question.1 Now they have compiled a number of essays—some in the form in which they were previously published, some updated for this book, and some entirely new—written by advocates and academics who take seriously the problem of giving an account for one’s actions within a professional role. All of the essays, in one way or another, address the persistence of moral agency. Inside a criminal defense lawyer there is an ordinary person, with ordinary-person values, committed to non-violence and respect for the rights of others. What is it like to be that person? In this way the essays move beyond justification to consider the issue of motivation. In a classic essay reprinted in this recent book, Barbara Babcock surveys a number of responses, including: Continue reading "Defending Defending, with Integrity"

 
 

Sex and Civil Liberties

Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012).

Multiple paradoxes lie at the heart of Leigh Ann Wheeler’s How Sex Became a Civil Liberty: a constitutional doctrine of sexual privacy exists alongside a public culture saturated by sex; women and sexual minorities enjoy unprecedented rights and freedoms while pornography proliferates in plain sight and civil libertarian principles underwrite opposition to rape shield laws and hate speech codes. Meanwhile, liberals and conservatives alike speak in a common civil liberties idiom that embraces the individual’s right to access sexual material once considered an obvious and proper target of state regulation. As Wheeler’s engaging history of how the American Civil Liberties Union (ACLU) helped make sex a civil liberty reveals, commitments to sexual freedom and consumer rights grew out of the changing political and cultural milieu from which the organization emerged and drew its leaders.

Wheeler’s story begins in the early twentieth century with portraits of individual ACLU founders and leaders including Roger Baldwin, Crystal Eastman, and Madeleine Zabriskie Doty. She highlights how their sexual lives—more adventurous and avant-garde than previously understood—shaped their thinking and spawned a civil liberties vanguard. Wheeler’s account intriguingly suggests that men’s and women’s differing experiences of the “first sexual revolution”—relatively unmitigated liberation for men, a much more ambivalent legacy for women who continued to value fidelity and lived in fear of unwanted pregnancy—may have led them to see birth control as an essential liberty that could also help to bridge this gender gap. Continue reading "Sex and Civil Liberties"