Monthly Archives: November 2012

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New Jotwell Section: Health Law

Today we inaugurate a new Jotwell section on Health Law, edited by Associate Dean Kathleen Boozang of Seton Hall Law and Professor Elizabeth Weeks Leonard of The University of Georgia School of Law. Together they have recruited a stellar team of Contributing Editors.

The first posting in the Health Law section is Can the Power of the FDA Be Reprised? by Kathleen Boozang.

Please note our Call For Papers, and get in touch if you have suggestions for a new section, or if you have a review you would like to contribute to Jotwell.

 
 

Can the Power of the FDA Be Reprised?

Daniel Carpenter, Reputation and Power, Princeton University Press, 2010.

Harvard Professor Daniel Carpenter’s Reputation and Power epitomizes the best of academic scholarship.  While this review focuses on its substantive contributions to the health or life sciences professor, the theme of the book is actually much more significant – whether and how government bureaucracy can effectively contribute to the common good – which is the take reviewed by others.  For those who are not intimately familiar with the Food and Drug Administration and pharmaceutical regulation, reading Carpenter’s book significantly resolves this knowledge gap.  While I can’t disagree with David Zaring‘s observation that the book is “methodologically eclectic,” it is nonetheless an invaluable resource for students of drug regulation as well as the administrative state.

Carpenter’s opus provides a comprehensive history of each piece of legislation that contributed to the agency’s creation, describes how the responses to a few major drug safety crises, or what Carpenter calls “policy tragedies,” contributed both to the passage of key legislation and the FDA’s reputation, and posits that the agency’s reputation with its multiple constituencies is the key to its vast power. Ultimately, Carpenter is interested in how a government agency in a country that is anti-big government can be so trusted and hold such power over a multi-national industry. In concluding that the agency’s power derives from its reputation, Carpenter explores the relationship between the institution and those who populate it, paying tribute to the many FDA officials whose own ethical and scientific integrity created, maintained and were inextricably linked with the ethos for which the FDA is so respected.  According to Carpenter, Dr. Frances Oldham Kelsey of thalidomide fame was not unique in her commitment to the public’s interest, scientific rigor and tenacity; those characteristics were embedded in the agency and, by virtue of its power, necessarily transformed the pharmaceutical industry from a not-always trustworthy and sometimes sloppy enterprise into one that adheres to generally accepted scientific methods. Continue reading "Can the Power of the FDA Be Reprised?"

 
 

When “Best Interests” Cannot Guide

I. Glenn Cohen, Regulating Reproduction:  The Problem with Best Interests, 96 Minn. L. Rev. 423 (2011), available at SSRN.

Whenever they can, advocates and politicians will re-characterize contentious debates in terms of the effects on children, even when the real concern is elsewhere.  The most prominent current example may be the debates on same-sex marriage, where those opposed to recognizing such unions refer regularly to alleged bad effects on children, even though those alleged effects are indirect and (at best) highly speculative.  However, talking about children avoids the less publicly acceptable view that likely motivates a large portion (though far from all) of the opposition to recognizing such unions:  a view that the homosexual lifestyle should be criticized rather than supported.

In Family Law doctrine, one can also find this sort of misuse of “best interests of the child”:  it is in a sense changing the topic, and calling one thing by a more favorable name.  Thus, there are principles for custody decision-making that purport to be (or be based on) the “best interests of the child,” but in fact reflect parental rights (e.g., the strong presumption for visitation by a non-custodial parent, even where there is strong evidence that this visitation is causing harm to the child) or other important social policies (e.g., refusing to base a custody decision on how a child might be harmed by the racist views of other people).

In Regulating Reproduction, I. Glenn Cohen similarly rebuts the use of “best interests” in one area of Family Law – the regulation of reproduction – and he does this with an added twist.  When one properly speaks of “best interests of a child,” the structure of the analysis is Option 1 as against Option 2 for the same child:  custody with mom as against custody with dad; adoptive placement with Family 1 versus placement with Family 2, or perhaps waiting for a better placement option to become available; having the medical treatment versus not having the medical treatment; and so on.  The decision-maker is to imagine the hypothetical future worlds for the child under the alternative choices and to evaluate which future is likely to be better.   However, when “best interests” is applied to the regulation of reproduction, there are no comparable comparisons; “best interests” analysis turns out to be, more often than not, both useless and incoherent. Continue reading "When “Best Interests” Cannot Guide"

 
 

Good Lawyers, Gone Good?

Why Good Lawyers Matter (David L. Blaikie, Honourable Thomas Cromwell and Darrel Pink, eds., 2012).

A bad news lawyer story is nothing new. As Deborah Rhode keenly observed over ten years ago: if one listens to the critics, it is easy to get the impression that “lawyers belong to a profession permanently in decline.”1 Current Canadian headlines only affirm Rhode’s observation. On a near-daily basis, we are gloomily advised of a spate of lawyerly crises. Ongoing problems with access to justice, lawyer incivility, lack of diversity and, most recently, shortages in articling (mandatory apprenticeship) positions, all loom large. Reading the newspaper can be demoralizing to newcomers and seasoned practitioners alike.

The recently published collection of essays in Why Good Lawyers Matter provides a timely counterweight to some of this doom and gloom. To be sure, there are real, pressing problems facing the Canadian legal profession. Thankfully, Why Good Lawyers Matter does not ignore this reality. Rather than “offer an apology” for the legal profession, the central idea behind Why Good Lawyers Matter is “to provide a well-informed and accessible reflection on what lawyers should do and why.” The result is a colorful array of thoughtful ruminations on the topic of lawyering. Continue reading "Good Lawyers, Gone Good?"

 
 

Race, Gender, and, Feminist Legal Advocacy during the Long Civil Rights Movement

Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution, (Harvard University Press, 2011).

Scholars have understood well that second wave feminism has deep roots in the Civil Rights Movement. Only in recent years, however, have historians explored the full extent of the material and ideological connections between these two movements.  Reasoning from Race brings this agenda to the field of legal history.  It examines what it meant for feminist legal advocates to use race analogies, how this changed over time, and how ultimately civil rights lawyers then attempted to reason from sex. In doing so, Mayeri seeks to demonstrate that the Civil Rights Movement and the Women’s Rights Movement cannot be understood in isolation from each other. Rather the movements were in dialogue with one another, taking the lead from and piggybacking on each other at different times.

Reasoning from Race makes three overlapping central arguments. The first is that women legal advocates used the tools, legal strategies, arguments, and precedent that African-American civil rights lawyers first developed. The second is that some of the leading architects and plaintiffs in sex discrimination cases were African-American women, and the third is that race and sex are intertwined categories.  Mayeri also intervenes in the periodization of the Civil Rights Movement, arguing that the Women’s Movement must be considered part of the larger Civil Rights Movement. Thus the Civil Rights Movement began in the 1950s and continued into the 1980s. Yet the height of the Women’s Movement also corresponded to the beginning of the backlash against the Civil Rights Movement.  This would have important implications in regard to legal strategies. Continue reading "Race, Gender, and, Feminist Legal Advocacy during the Long Civil Rights Movement"

 
 

Costly Mistake: Failing to Read This Article

Mary Louise Fellows & Lily Kahng, Costly Mistakes:  Undertaxed Business Owners and Overtaxed Workers, 81 Geo. Wash. L. Rev. (forthcoming 2013), available at SSRN.

If you want to impose a tax on income, you need to delineate the contours of the concept of income.  Importantly, you need to mark the line between income-producing activities and non-income-producing (or personal) ones.  When an individual or a business engages in costly activities that produce taxable income, the cost of those activities should be deductible.  When that individual or business engages in costly activities that do not produce taxable income, the cost should not be deductible for tax purposes. Sounds simple.

Some legal concepts (like the distinction between business and personal expenses) are misleadingly simple to articulate and are confounding in their application, while some expenses cause tax scholars and policy-makers relatively little anxiety.  As Fellows and Kahng illustrate, if I pay to go on a vacation, drink a fine bottle of wine, or fall asleep on a high-end mattress, no one would suggest that my expenses should be tax deductible.  They are clearly personal. Continue reading "Costly Mistake: Failing to Read This Article"

 
 

Public-Sector Unions, Public Employees: May You Live in Interesting Times

Joseph E. Slater, Public Sector Labor Law in the Age of Obama, 87 Ind. L. J. 189 (2012)

In 1959, Wisconsin became the first state to grant collective-bargaining rights to its public workers. The next half-century witnessed the rise of public-sector unions. As union density declined in the private sector, it increased in the public sector such that, by 2010, 7.6 million public-sector employees belonged to a union as compared with 7.1 million private-sector union workers. Many celebrated the public-sector union as the big success story. The fortune of public-sector unions and their members seemed, however, to turn on a dime with the 2010 mid-term elections. The past two years have witnessed some of the most pernicious attacks on public employees and their unions in the past half-century. Too contrived to be ironic, among the first and most virulent of these attacks began in Wisconsin.

Here’s where Professor Joseph Slater’s latest article, Public Sector Labor Law in the Age of Obama, begins. Professor Slater tackles four big issues: (1) recent political attacks resulting in legislative changes in the context of the current economic crisis and debate over public employee pensions; (2) bargaining and legal issues created by the current economic crisis; (3) the debate over whether and to what extent certain categories of employees (specifically Transportation Security Administration employees, police, and firefighters) should have collective-bargaining rights; and (4) the Missouri state constitutional requirement that employees have a right to bargain collectively. Continue reading "Public-Sector Unions, Public Employees: May You Live in Interesting Times"

 
 

Why Judges Leave the Bench

Stephen Burbank, S. Jay Plager, & Greg Ablavsky, Leaving the Bench, 161 U. Pa. L. Rev. (forthcoming 2012).

Law review articles have both texts and subtexts, messages that come through loud and clear and more subtle hints and suggestions that lurk in the article’s structure or methodology or footnotes.  A recent paper by Stephen Burbank, S. Jay Plager, and Greg Ablavsky nicely illustrates the idea.  In Leaving the Bench, the three co-authors offer a careful assessment of the many factors that shape the decisions of federal judges to step down from their jobs as active members of the Article III judiciary.  In the text of the piece, the authors explore the consequences of various forms of judicial departure and make a persuasive case that the institutional judiciary depends heavily on the contributions of senior status judges.  In the subtext, the authors provide a subtle reminder that judicial behavior, like all human behavior, resists simplistic modeling and one-dimensional explanation.  The authors put the proposition this way:  sometimes the scholar must attend to the “messiness of lived experience” rather than the tidiness of an unduly parsimonious model.

Models have taught us a great deal about the way political scientists and economists think about the way judges decide cases.  Political scientists prize the large N study, with lots of data points to smooth out the rough edges of statistical inference.  Economists prize presumptions about self-interested behavior.  Voting by Supreme Court Justices and federal appellate court judges has attracted the eye of such scholars:  it occurs with numbing frequency, enabling the statistically-minded to assess the ideology of a judge or Justice by reference to the way she votes.  Datasets vary in usefulness; some sort cases by the presumed valence of the outcome (left or right) and then assess votes against the backdrop of those assumptions.  Others use the votes themselves as a measure of voting behavior.  For many, votes either reveal or confirm that ideology plays a role in judging, although the more sophisticated studies suggest that panel make-up and–wait for it–doctrine can also influence the exercise of the judicial franchise. Continue reading "Why Judges Leave the Bench"

 
 

Bureaucratic Nirvana

Norton E. Long, Bureaucracy and Constitutionalism, 46 Am. Pol. Sci. Rev. 808 (1952).

Towards the beginning of his book Law and Disagreement, Jeremy Waldron says that he will offer an airbrushed view of legislatures and their capacities, as a deliberate counterpoint to the romantic view of courts so prevalent in the older literature on legal and constitutional theory. Others have offered optimistic accounts of the Presidency. But has anyone done the same for the federal line agencies and civil service — the federal bureaucracy? Will no one give us a vision of bureaucratic nirvana?

An unpromising assignment, to be sure. But it turns out that someone has taken it on, and done it superbly. In 1952 a public administration scholar, Norton E. Long, wrote an article on “Bureaucracy and Constitutionalism” in the APSR. The article offers nothing less than a vision of an American public law order guided, shaped and perfected by a quasi-independent administrative bureaucracy. Long’s article has been cited a couple of hundred times in the public administration literature, but — by my highly unscientific count — only a handful of times in the legal literature. As far as administrative law and the theory of the administrative state go, Long’s article is a neglected classic, although Long’s ideas made their way to the legal literature indirectly through the work of other public administration scholars heavily influenced by Long, such as John A. Rohr (in his 1986 book To Run a Constitution). Continue reading "Bureaucratic Nirvana"

 
 

Reclaiming Fuller

Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Oxford, Hart Publications, 2012).

“There are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy. It is the object of this book to identify those goods and those requirements of practical reasonableness, and thus to show how and on what conditions such institutions are justified and the ways in which they can be (and often are) defective.” So wrote John Finnis at the outset of Natural Law and Natural Rights. We often think of Finnis as being distinctive among legal philosophers in the modern era in wishing to place this question at the very centre of jurisprudential inquiry. It is not an approach to the subject that we immediately connect, in our reflections, with the legal philosophy of that other prominent opponent of legal positivist understandings of the legal order, Lon Fuller. But as Kristen Rundle’s excellent book Forms Liberate reminds us, Fuller was unwavering in his insistence that there is something distinctive and important about legal forms, that there are aspects of the human condition, of incalculable importance to us, that can be “secured only through the institutions of human law.” At the same time, Fuller also connected this distinctiveness of form with the issue of practical deliberations, of the manifestation and respect of human agency.

The main purpose of Forms Liberate is to “reclaim” Fuller’s jurisprudential concerns from the periphery of present-day philosophical debates, and to return them to the centre of our inquiries so that they might interrogate the assumptions, both of method and of substance, that continue to structure the domain of inquiry. The title of the book comes from a working note of Fuller’s, written during the preparation of his “Reply to Critics,” in which all except those two words are scored out: “forms liberate.” Drawing heavily upon Fuller’s private papers, the book attempts to explain the significance of that image for Fuller’s project, to situate it in the context of Fuller’s thinking as a whole. Rundle suggests that Fuller never managed successfully to articulate his agenda within the much narrower context that Hart forced upon their famous exchanges, which often left Fuller bewildered: in particular, “Fuller losing himself and some of his best ideas to the challenge of understanding why Hart and others had dismissed him so harshly…” (P. 5.) Continue reading "Reclaiming Fuller"

 
 

Costing Financial Regulation

Bruce R. Kraus & Connor Raso, Rational Boundaries for SEC Cost-Benefit Analysis, 30 Yale J. on Reg. (forthcoming 2012), available at SSRN.

Debates about the costs and benefits of regulation, and about particular rules, are a very visible feature of lobbying about proposed financial regulation and of challenges to final rules. Industry opposition to the Dodd-Frank Act has focused on arguments about the costs of regulations envisaged by the Act. For example, in the summer of 2012 the US Chamber of Commerce Center for Capital Markets Competitiveness published a report by Anjan Thakor on the Economic Consequences of the Volcker Rule which argued that the rule would adversely affect bank customers as well as banks. The report argued that reductions in the risk of banking and of costs to taxpayers could be achieved “with greater efficiency by making judicious use of capital and liquidity requirements.” Senator Richard Shelby introduced the Financial Regulatory Responsibility Act of 2011 (FRRA) in Congress with a promise that it would hold “financial regulators accountable for rigorous, consistent economic analysis on every new rule they propose.” Bruce Kraus and Connor Raso are concerned that the SEC’s ability to regulate, and even to carry out its mandates under Dodd-Frank, will be severely compromised by these developments.

In this paper Kraus and Raso argue that, by failing to provide its own interpretation of the National Securities Markets Improvement Act’s requirement that the SEC consider the impact of its rules on “efficiency, competition and capital formation,” the SEC allowed commentators and the courts to define the agency’s obligations with respect to cost-benefit analysis. The authors critique court decisions which have addressed the SEC’s obligations to consider the impact of its rules on “efficiency, competition and capital formation,”(in particular Business Roundtable v SEC), and argue that the SEC should now “affirm its substantial and long-standing expertise in financial economics, and insist on the agency’s right, derived from that expertise, to discern and define the boundary between economic analysis and policy choice.” Kraus and Raso discuss the SEC’s composition as a multi-member, bi-partisan agency which must, as a result, engage in compromise, even log-rolling, although its ability to do so is compromised by the Sunshine Act. The structure of the SEC is thus important in thinking about how the SEC should act, and the authors argue that the requirement that the SEC engage in cost-benefit analysis should not be interpreted to “invalidate the predictable results of such a system.” Kraus and Raso approve of the SEC’s March 2012 issuance of Guidance on Economic Analysis in SEC Rulemakings, but they urge the SEC to think of “involving economists more completely in the policymaking process” as more than “a procedural change.” They argue that “the economic analysis will be more compelling if it influences (rather than merely describes and rationalizes) the substance of the rule.” Continue reading "Costing Financial Regulation"