Monthly Archives: October 2012

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Not My Welfare State, or the Taxpayer’s Lament

Molly C. Michelmore, Tax and Spend: The Welfare State, Tax Politics, and the Limits of American Liberalism (Philadelphia: University of Pennsylvania Press, 2012).

Molly Michelmore’s new book could not be more timely. This summer the Supreme Court upheld the Affordable Care Act’s controversial individual mandate provision, through a majority opinion that links healthcare directly to the federal government’s tax power. Meanwhile, the lead-up to the presidential election has been riddled with references to tax burdens (and evasions), social welfare spending, and government “dependency.”

Historians and social scientists have much to add to this conversation, but little faith that they will be heard. A recurring theme in post-World War Two U.S. political history is how greatly the government has assisted working- and middle-class Americans (especially white men and their families) and how rarely those Americans have acknowledged that fact. This paradox persists today. Most Americans will rely at some point on a means-tested government support program, such as food stamps or Temporary Aid to Needy Families.1 Many more will accept Social Security benefits, tax credits, and other government subsidies.2 Yet these same Americans often resent the “welfare state.” In Michelmore’s words, “Americans hate government, but demand and expect, almost as a matter of right, the privileges, security, and mobility that government offers.” (p. 2-3) Continue reading "Not My Welfare State, or the Taxpayer’s Lament"

 
 

A Quantitative History of Judicial Elites

Chris Hanretty, Political Preferment in English Judicial Appointments, 1880-2005 (2012), APSA 2012 Annual Meeting Paper, available at SSRN.

We Brits like to point to our judiciary as emblematic of the superiority of our common law system. Meritocratic neutrality is one of the signal claims made by both the judiciary and the Bar. A lot of academic ink has been spilt deconstructing that particular claim, but it was nevertheless a delight to stumble across Chris Hanretty’s paper Political Preferment in English Judicial Appointments, 1880–2005. It’s a delight for a number of reasons. Firstly, Dr. Hanretty is a political scientist, and political scientists are mysteriously rare students of UK legal systems, even in the UK. Secondly, it’s based on a sophisticated quantitative analysis. Thirdly, it is well written: a delicious yet concise historical analysis of judicial appointment to the Court of Appeal. Fourthly, there’s even a bit of polite methodological argy-bargy (at p.12) for the quants guys (and it nearly always is guys) who love that stuff. But finally, it evidences several important points about the significance of politics, elites and judges.

The study looks at the promotion of judges, largely from the High Court bench (which is the first instance court of highest status) to the Court of Appeal and to what was then the House of Lords (now the Supreme Court). It tests a number of hypotheses about this promotion process to discover whether promotion appears to be related to social standing; education; early appointment as a “rising star”; whether the judge is, for instance, a family (low status) or commercial (high status) judge; overt party political affiliation (historically significant in most narratives); and whether “candidates who were previously appointed [to their initial judicial office] by the governing party are more likely to be promoted.” Continue reading "A Quantitative History of Judicial Elites"

 
 

Getting Rights Right

Daniel M. Brinks & Varun Gauri, Law’s Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights, World Bank Development Research Group Working Paper 5999 (March 2012), available at SSRN.

This working paper makes a thought-provoking contribution to debates about the value of litigating rights to advance social change. It asks whether litigating the socio-economic rights that have been incorporated into many of the constitutions drafted during the past 50 years or so has what the authors term “pro-poor” effects. And, to the extent that such effects occur, what political, economic, social and legal factors and institutions might account for them?  In response to these questions the authors offer a comparative analysis and reworking of data from five case studies of socio-economic rights litigation reported in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, a book edited by the same authors and published in 2008.

All five research sites are large so-called emerging economies with constitutions that recognise socio-economic rights, some more explicitly than others.1 The case studies of socio-economic rights litigation in India, Nigeria, Indonesia, Brazil and South Africa that are discussed in the 2008 book provide extensive details of reported cases in the fields of health care and education in each country and the authors estimate the direct and indirect effects of the cases on each country’s population and public policy. This paper revisits the data, incorporating it into a small sample comparative study across the five jurisdictions; a study that makes intriguing, if cautious, claims about the capacity of some courts to decide some socio-economic rights claims in ways that are beneficial to some of the poor. Continue reading "Getting Rights Right"

 
 

Federal Crimes, State Courts, and Palmore

Michael G. Collins & Jonathan Remy Nash, Prosecuting Federal Crimes in State Courts, 97 Va. L. Rev. 243 (2011).

In 1973, the Supreme Court in Palmore v. United States upheld Congress’s creation of an “Article I” court in the District of Columbia—the D.C. Superior Court—against a claim that Congress lacked the power to invest non-Article III federal courts with the authority to entertain criminal prosecutions arising under federal law. One of the linchpins of Justice White’s analysis for the 8-1 majority was his observation that, “Very early in our history, Congress left the enforcement of selected federal criminal laws to state courts and to state court judges who did not enjoy the protections prescribed for federal judges in Art. III.” As White explained, if it did not violate Article III for Congress to allow state judges to entertain federal criminal prosecutions, then it would be far harder to understand why, in at least some circumstances, non-Article III federal criminal adjudication—especially in a tribunal acting as a quasi-state court— should not also be permissible.

And yet, as Michael G. Collins and Jonathan Remy Nash persuasively demonstrate in Prosecuting Federal Crimes in State Courts, the historical record to which Justice White alluded in Palmore is “sketchy at best.” Instead, Collins and Nash’s article offers a compelling mix of historical, legal, and policy-oriented explanations for why the scattershot exceptions from the earliest years of the Republic may in fact prove the rule—that state courts generally do not (and should not) have the power to entertain criminal prosecutions arising under federal law. And whereas Collins and Nash’s article comes in response to a series of recent proposals to expand the federal criminal jurisdiction of state courts, the true significance of their analysis may be the extent to which it deprives Palmore (and, as such, federal criminal adjudication in non-Article III federal territorial courts in general) of perhaps its strongest analytical underpinning. Continue reading "Federal Crimes, State Courts, and Palmore"

 
 

The U.S. Supreme Court As Fact Finder?

Allison Orr Larson, Confronting Supreme Court Fact Finding, 98 VA. L. REV. 1255 (2012).
Mark KendeMatthew Shimanovsky

Mark Kende and Matthew Shimanovsky

Chief Justice John Roberts, Jr. made headlines during his confirmation hearings by comparing judges to baseball umpires. Now imagine that umpires had the ability to secretly obtain expert and other opinions about whether a pitch is a ball or strike.  That is the question raised by Allison Orr Larson’s important new article, Confronting Supreme Court Fact Finding. Larson’s article shows how U.S. Supreme Court justices are actually doing more of their own fact-finding, rather than just acting as the nation’s highest appellate court of law.  Following Kenneth Culp Davis, she calls these findings “legislative facts,” to contrast them with “adjudicative facts.”  The article usefully explores the causes and consequences of this significant development.

Larson shows that some justices have used “in house” fact finding, beyond the crucible of the adversary process and cross examination, in 90 of 120 of the most important cases decided in the last 15 years.  Of those 90 cases, 47% cite to 4 or more sources outside of the briefs.  Larson says that the Internet has been instrumental in permitting such fact finding.  The Internet allows each justice to bolster an opinion, counter a scathing dissent, or justify overturning previous case law. Continue reading "The U.S. Supreme Court As Fact Finder?"

 
 

Does Anyone Really Understand Medicare? Richard Kaplan Does, and You Can, Too

Richard L. Kaplan, Top Ten Myths of Medicare, 20 Elder L.J. 1 (2012).

When former Massachusetts Governor Mitt Romney chose Paul Ryan to be his running mate in the 2012 United States Presidential election, he guaranteed that Medicare would become a central battleground of the campaign.  Ryan, a veteran Congressman from Wisconsin, is widely known for his efforts to turn the federal Medicare program into a voucher program (with the value of the vouchers deliberately calibrated not to keep up with health care costs over time), a transformation that would change everything about Medicare except its name.

Ryan’s proposal is sufficiently controversial that the Romney/Ryan camp has gone to significant lengths to distance itself from it – refusing to use the word “vouchers,” for example, which they evidently believe is toxic politically.  At the same time, the Republican team’s strategists have made a point of highlighting the decreases in Medicare spending that have been projected as a result of various cost-saving measures in the Patient Protection and Affordable Care Act, calling those measures “cuts in Medicare” for which President Obama should be blamed.  Both parties apparently believe that there is such strong support among likely voters to preserve Medicare that they must try to convince voters that the other candidate is going to gut the program, even though only the Republican side has ever proposed actually doing so. Continue reading "Does Anyone Really Understand Medicare? Richard Kaplan Does, and You Can, Too"

 
 

Prisons, Poverty And Power

Yes, yes, I know this is the Journal of Things We Like.  And I like, like, like Ian Haney Lopez’s essay, “Post Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama.”  But to understand why I like it so much, I have to say a word about something I also liked, but not as much as I had wanted to.

A great deal of attention has been paid to Michelle Alexander’s book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.  The attention is well deserved; Alexander is a great writer with an eye for a compelling narrative.  But truth be told, I was left feeling a bit dissatisfied when I finished reading.  How does the New Jim Crow racism actually work, structurally speaking, when it comes to mass incarceration?  Is subconscious bias (by police) and naked political gain (by the architects of the war on drugs) really the entire story?  Isn’t there a deeper, more coherent structural story to tell here with regard to cause? Continue reading "Prisons, Poverty And Power"

 
 

Implicit Bias: Moving from Theory to the Courthouse

Jerry Kang, Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson & Jennifer Mnookin, Implicit Bias in the Courtroom59 UCLA L. Rev. 1124 (2012).

Having a total of ten authors for one article would make this rather exceptional even without regard to the topic. That these authors participated together in a symposium on implicit bias is not a surprise. But what is unusual, if not exactly surprising, is that they together wrote this one article. This is not the typical scenario for the papers delivered at a conference. The ten include legal academics, scientists, researchers, and a sitting federal judge. Six are law professors, though two of them hold joint appointments. One is a research consultant for the National Center for State Courts, two are psychology professors and one is a federal district court judge. They all come to the study of implicit bias from their respective points of perspective but the article is a fully integrated article.

The question the article begins to answer is: What, if anything, should we do about implicit bias in the courtroom? The scientific literature on implicit bias and the role implicit bias might play has been the subject of considerable legal literature. Part I provides a clear, straightforward introduction to the science involved in understanding that implicit bias exists, what it is, and how it works. The article defines implicit attitudes and stereotypes as biases “not consciously accessible through introspection.” Accordingly, their impact on a person’s decision-making and behaviors does not depend on that person’s awareness of possessing these attitudes or stereotypes. Consequently, they can function automatically, including in ways that the person would not endorse as appropriate if he or she did have conscious awareness. If you remember, Ross Perot in the 1992 Presidential campaign gave a vivid example of implicit bias that gets disclosed unintentionally. While speaking at an NAACP meeting,  Perot addressed his audience several times as “you people” or “your people.” Especially since the topic of the speech was crime and illegal drugs, many perceived Perot as expressing a stereotypical view of African Americans as being identified with crime and drugs. He had no incentive to be avowedly racist and there is no indication that he was conscious of the obvious inference listeners drew based on the language he used. Continue reading "Implicit Bias: Moving from Theory to the Courthouse"

 
 

Linking Financing To Decisionmaking In The U.S. Patent System

Michael Frakes & Melissa F. Wasserman, Does Agency Funding Affect Decisionmaking?: An Empirical Assessment of the PTO’s Granting Patterns, 66 Vand. L. Rev. (forthcoming, 2013), available at SSRN.

As patent law has grown in social and economic importance, a growing number of scholars have given attention to analyzing the structure of the patent system.  The number of patents issued per year has increased significantly in the past few decades, and, in at least some fields, the breadth of products or activities on which these issued patent claims read has also increased.  Scholars studying the system have given the design and functioning of the U.S. Patent and Trademark Office (PTO) increased scrutiny on a number of fronts.  Among its many duties, central is the PTO’s power and obligation to decide whether the rights to control a putative invention belong to the patent applicant, to a different applicant, or to the public.

Although patent prosecution is an ex parte proceeding, the patent examiner stands between the applicant and the public in deciding who shall receive the entitlement to use, or exclude others from using, the invention.  Due process norms usually require such decisionmakers to be unbiased and free from conflicts of interest.  However, since 1991, the PTO has been paid to make this decision from fees paid by one of the parties to the decision:  the applicants or patentees.  Not surprisingly, senior PTO officials have on more than one occasion referred to applicants and patentees as the office’s “customers.” Might this financing arrangement affect the agency’s interpretation and application of the law?  Most scholars have assumed that it does to some extent, but this extent and the operation of this assumed bias has been underexamined.  Until now. Continue reading "Linking Financing To Decisionmaking In The U.S. Patent System"

 
 

Testing the Expertise Hypothesis

Joshua D. Wright & Angela M. Diveley, Do Expert Agencies Outperform Generalist Judges?  Some Preliminary Evidence from the Federal Trade Commission (2012), available at SSRN.

Proponents of administrative agencies have long touted the expertise that specialized agencies enjoy. Indeed, perceived agency expertise helps to explain Congress’s willingness to delegate to agencies the authority to set policy through rulemaking, to render adjudicatory decisions, and to conduct other activities. Yet, as Joshua D. Wright and Angela M. Diveley point out in a study posted this past January to SSRN, the so-called “expertise hypothesis”—which posits that expert agencies will consistently produce higher quality outputs than generalists—lacks empirical support. In their recent study, Wright and Diveley seek to fill the void by conducting an empirical study that examines whether the Federal Trade Commission (FTC) performs as well as generalist judges in its adjudicatory antitrust decision-making role.

Specifically, Wright and Diveley’s study tests the expertise hypothesis by comparing antitrust decisions before the FTC with those issued by Article III courts. They use “appeal” as their primary measure of quality performance—comparing the appeal rates of federal district court judges and FTC Commissioners. They explain that appeals are a “useful indicator for whether the initial court made an error” because “a higher appeal rate implies the decision-maker has issued more opinions that leave at least one party feeling strongly enough to invest in the opportunity for another decision-maker to decide that he has committed reversible error.” (P. 12) Nonetheless, because they acknowledge that reversal rates also can contain some information on the quality of the underlying decision, Wright and Diveley also report their results about the differences between the FTC and generalist judges using reversal rates.  Continue reading "Testing the Expertise Hypothesis"

 
 

Professor Tadros’ Wild Ride: Duty, Defense, Deterrence and the Criminal Law

Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (Oxford University Press 2011).

I grew up in Miami and spent many a Memorial Day weekend at Disney World in Orlando, Florida.  One of my favorite rides was Mr. Toad’s Wild Ride, with its unexpected twists and turns and characters jumping out of nowhere.  Reading Victor Tadros’ The Ends of Harm made me feel like that kid again.  Here are three reasons why.

First of all, the thesis upends much of our thinking about the justification for punishment.   Tadros first attacks retributivism, which is roughly the view that desert is at least a necessary, if not a sufficient, reason to punish.  (There is, by the way, no definition of retributivism that is not somewhat contentious these days.)  He then turns to an unusual defense of general deterrence.  He believes that the justification for the criminal law should be that it prevents harm.  However, he also takes seriously the deontological constraint that we cannot use people as “mere means.”  This latter issue frequently gets deterrence (and other consequentialist) accounts of the criminal law into trouble, as retributivists argue that consequentialism theoretically permits the scapegoating of innocent persons.  If you can prevent harm by scapegoating an innocent person, a general deterrence theorist simply lacks the theoretical resources to explain why this should not be done.  Tadros agrees with retributivists that one cannot use people, and so he needs an account that does not rely on desert to explain why it is permissible to punish some people to discourage others from committing crimes.  The answer he comes up with is that offenders have a duty to suffer in the name of general deterrence. Continue reading "Professor Tadros’ Wild Ride: Duty, Defense, Deterrence and the Criminal Law"