A wealth of formidable scholarship has weighed in on the constitutionality of the two aspects of the Patient Protection and Affordable Care Act that were at issue in NFIB v. Sebelius (which recently celebrated the anniversary of the historic decision), and so it can be hard to find a new perspective on either the statutory and constitutional aspects of the ACA. Nevertheless, Professor Rubin has furnished a fresh take by proposing that the ACA expresses a legislative interpretation of positive constitutional rights that articulates a right to healthcare in the United States.
The article begins by positing that the ACA faced an impassioned resistance movement because the law represents a sea change in the way we “think about American citizenship and the nature of our political community.” To prove this point, Rubin offers a consideration of the nature of the Constitution by working through its historical and philosophical origins. The first part may test the endurance of those not in the business of constitutional theory, but stick with it, because the payoff is a theory worth understanding—that the government serves the people, that a constitution is designed to be an instrument that implements the goals of the people, and that the goals of the people reveal themselves to be the “strengthening of the national government, liberty, and equality.” Importantly, this means that the Constitution must serve not only the people who drafted the text but also the subsequent generations bound by the original document’s terms. For this to be true, the meaning of the document cannot be fully understood at its drafting, because every generation will have a hand in its interpretation by acting pursuant to the principles of the document as they become meaningful in a given era. Rubin argues that this purposive view of the Constitution alters the constitutional significance of legislation, because legislation reveals the meaning of the constitution to the people living by the document in their time. Continue reading "Finding a Positive Right to Healthcare"
Jessica A. Clarke, Inferring Desire, 63 Duke L.J. (forthcoming 2013), available at SSRN.
Fifteen years ago, the Supreme Court recognized that harassment between members of the same sex could be actionable under Title VII, in Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80 (1998). Prior to that case, lower courts had struggled to determine whether such intra-group harassment could be because of sex. In its decision, the Supreme Court identified several heuristics, or evidentiary shortcuts that could be used to support an inference that the harassment was because of sex, including that the harasser was gay. If the harasser were gay, we could infer that the harasser desired the plaintiff sexually, and could further infer that the harasser would not have treated a member of the opposite sex the way the harasser treated the plaintiff. Focusing on this heuristic, Jessica Clarke’s new article, Inferring Desire, is an important contribution to the literature on sex discrimination, not only in this context, but also more broadly. In the article, she studies all of the same-sex harassment cases that have resulted in opinions since Oncale was decided. The article’s primary focus is on the large number cases in which the courts attempt to infer the sexual orientation of the harasser as part of the analysis, focusing on desire to the exclusion of other ways to prove that the harassment is because of sex. Clarke’s study reveals that the courts seem to posit an idealized romantic version of same-sex desire that privileges heterosexuality and camouflages sexism.
The article begins by explaining how the sexual orientation and desire heuristics work. As Clarke notes, the Supreme Court defined the critical issue in sexual harassment cases to be “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” It further outlined some ways this could be proven including that proposals of sexual activity could demonstrate the different treatment if “there were credible evidence that the harasser was homosexual,” and thus presumably motivated by sexual desire that would operate differently on the sexes. Although this was not the only route to proof of sex-different treatment, Clarke found that courts had relied on desire in allowing plaintiffs to proceed past summary judgment more often than all other reasons combined. Moreover, the courts conflated homosexuality with desire in most of those cases, which meant that they often engaged in extended analysis of the sexual orientation of the harasser. Continue reading "The Trouble with Heuristics in Sexual Harassment Litigation"
How do American law and culture accommodate the fact that old age is almost everyone’s fate, and that—though we know for sure that it ends at last in death—its course and the kinds of dependency it brings are so profoundly unpredictable and often categorically intense? In this brilliant, grimly humane page-turner of a book, Hendrik Hartog lays out three different historical periods marked by very different answers to this question.
Before the rise of a market economy in the middle of the nineteenth century, old people were cared for and died in their households, surrounded and aided by relatives and, if they had them, servants or slaves. But as the master/servant relation was replaced by employment in the rapidly industrializing private sphere, and as the household nuclearized into the husband/wife, parent/child family, this ready-to-hand supply of helpers dwindled, often disappearing entirely. In response to these changes, old people who had property started promising to bequeath it to children, other family members, and even housekeepers in exchange for their staying at home and devoting themselves to filling what we would now call the care gap. Continue reading "Elderlaw As Family Law"
That we are still strategizing how to achieve gender equality—the equality of women’s constitutional and legal status, social and economic opportunities, and daily realities with those of men’s—is the perplexing truth at the heart of Penelope Andrews’ important book, From Cape Town to Kabul. Known for her work on South Africa and legal feminism, Andrews here posits questions about how gender equality can be achieved on a global scale. She offers no easy answers or totalizing theories, but proposes a notion of “conditional interdependence” as a method of situating women within their various cultures as a way to move forward with the project of equality. It’s a concept that could go far in resolving some of the thorniest arguments about “choice” and “autonomy” that permeate questions of women’s equality.
At its most hopeful, Andrews’ book presents the struggle for equality in South Africa as it was mounted against the Apartheid state, resulting in a new constitutional regime devoted to transformative law and politics. Andrews attributes the fact that this transformation included gender equality to a confluence of forces, but most importantly women’s participation. She suggests that the path chosen by South Africa is a model for many other nations, stressing that the involvement of women at all levels and phases is vital. Continue reading "The Global Problem of Women’s Equality"
The recent revelations about the National Security Agency’s dragnet surveillance programs highlight three significant developments that have occurred in the national security domain in the past decade. First, the most significant foreign threats to national security are no longer nation-states but individuals armed with powerful weapons who operate independently of any country. Second, technology has vastly enhanced the government’s capacity to discover and prevent these threats. Third, technology has also both reduced individual privacy and conditioned people to surrender it without qualms.
These three developments, Simon Chesterman argues in One Nation Under Surveillance, mean that regulation of intelligence agencies needs to be rethought. While the traditional civil libertarian efforts to limit camera surveillance, data mining, biometric identification, and other types of intelligence gathering are “worthy,” he says, ultimately they are “doomed to failure because modern threats increasingly require that governments collect [such information], governments are increasingly able to collect it, and citizens increasingly accept that they will collect it.” Instead, Chesterman argues, governments should concentrate on regulating the use of the intelligence it collects, pursuant to publicly debated laws that provide a transparent framework for making decisions about how and when to disseminate the information obtained. As the subtitle suggests, this regime can be seen as a form of “social contract” in which citizens grant access to information about them in return for “a measure of increased security and the convenience of living in the modern world.” Continue reading "How Much Information Can Government Collect to Protect National Security?"
Ronald Dworkin’s death in February, at the age of 81, was surely a deep personal loss for those who knew and loved him, and marked the end of an epoch, an after-the-fact close to the late twentieth century, in liberal legal thought. The loss was of less moment, perhaps, to current work in constitutional law and theory. Dworkin’s missiles against the current Supreme Court, which continued to land in the pages of the New York Review of Books, were more than merely transatlantic missiles; they seemed to have been launched from another time and place altogether. Still, until the end, he wrote with grace, clarity, and an air of authority. I’m grateful that what appears to be his last major work was in one of my own areas of interest, the relationship between law and religion.
One of the bigger-picture theoretical questions that seems to have sparked renewed interest in this field is whether “religion”—whatever that is—is “special” for constitutional purposes. That question has been raised in a variety of ways. Chris Eisgruber and Larry Sager have asked, from an egalitarian perspective, whether religious claims can be set apart from claims of conscience. Both Brian Leiter and Micah Schwartzman have questioned from a philosophical perspective whether the distinctive treatment of religion is capable of coherent justification. Others, such as Caroline Mala Corbin and Nelson Tebbe, have approached things from a different but complementary position, asking whether nonbelievers are unfairly disadvantaged in the current legal regime. And religion’s specialness, as an intrinsic matter or for more earthbound legal purposes, has its defenders, too, prominent among them such writers as Michael McConnell and Andy Koppelman. It’s a question that certainly has an air of the abstract, but it has important implications for Religion Clause doctrine. Continue reading "The Sublime Dworkin"
Frederick Schauer, On the Nature of the Nature of Law
, Archiv für Rechts- und Sozialphilosophie (ARSP)
, Vol. 98, pp. 457-467 (2012), available at SSRN
At the heart of analytical legal philosophy are theories about the nature of law. In recent decades, there has been a growing convergence around the conclusion that theories about the nature of law (like those of H.L.A. Hart and Joseph Raz) are conceptual analyses, determining the “essential” or “necessary” characteristics of the concept of law. (The debates about the proper way to understand theories about the nature of law are summarized in Brian Bix, Joseph Raz and Conceptual Analysis, APA Newsletter on Philosophy of Law, Vol. 6(2), Spring 2007, available at SSRN.) Against this background, Frederick Schauer, in a number of important recent articles, including On the Nature of the Nature of Law, has argued that legal theorists should focus more on “the typical truths” of law, even if this is different from the list of its “essential characteristics.”
To explain: the “essential” or “necessary” characteristics of law are those characteristics that make it “law,” the characteristics without which it would not be “law.” These characteristics will be present (by definition) in all legal systems, present, past, future, or hypothetical. Claims of which characteristics are “essential” or “necessary” are claims about our concepts, not (or at least not primarily) falsifiable claims about the world independent of those concepts. (The role of “necessity” in philosophy generally and in legal philosophy in particular is a large topic that would take us too far afield. I discuss the topic in Raz on Necessity, 22 Law and Philosophy 537 (2003), also available at SSRN.) Continue reading "The Nature of Law: Essential vs. Important"
When I was growing up in Chicago in the 1970s, I obsessed about Jane Jacobs’ Death and Life of Great American Cities (1961). The book captured much about what I loved about living in the city: The differences one discovered walking down that street instead of this one, the various faces a single block could present at different moments of the day, the way the little independent stores that sold small market journals or Asian specialties butted up against the more generic stores that sold the Snickers bars and Dr. Peppers that I lived on in high school. But there were also things about Chicago that the book did not address: The fact that there were areas not far from my home that I could not go into as a white teenager and other areas that my classmates could not go as teenaged blacks. The way that those spaces were defined as much by the city government’s decisions not to enforce laws or to fail to enforce laws equally, as they were by local preferences. The fact that Chicago’s neighborhoods, and the racial tensions between them, were defined as much by choices to ignore federal laws against redlining, racial steering, or housing discrimination as they were by community norms. And, finally Jacobs’ celebration of the local did not capture the extent to which the struggles over those problems were defined by national, and sometimes even international, debates.
I started reading Mariana Valverde’s recent book, Everyday Law on the Street: City Governance in an Age of Diversity (2012), a study of street-level urban governance in Toronto, because it promised a law and society alternative to Jacobs’ work. But while I came, so to speak, for the law and society recasting of Jacobs, I stayed for the reminders her work offers legal historians. Continue reading "Law And The City"
David Markell and Emily Hammond Meazell, Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, 37 Harv. Envtl. L. Rev. (forthcoming 2013), available at SSRN.
The great question underlying American administrative law is that of agency legitimacy. Administrative agencies, whose heads don’t answer to the voters and whose decisions for the most part are not subject to effective popular checks, have dubious democratic bona fides. Where do they get off, then, mandating rules of conduct and imposing punishments backed up by the coercive power of the state? A crucial part of the answer, in American administrative-law thinking, has rested on the institution of judicial review: We can trust agencies to exercise their delegated authority, the classic argument runs, and we can treat that authority as legitimate, because we can rely on courts to take action if the agencies step out of line.
But as administrative-law scholars well know, the judicial-review focus has limitations. David Markell and Emily Hammond Meazell, in their paper Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, note that few administrative decisions ever go before a court. Judicial review of most agency decisions is neither cost-effective nor practical; review of others is precluded by law. This, the authors urge at the beginning of their paper, is one of the “great paradoxes of administrative law,” raising the question, “What else is there to legitimize unreviewable agency action?” Continue reading "Assessing Agency Legitimacy"
Research on the federal courts often follows this basic pattern: 1) identify issue (often made salient because of a recent Supreme Court case); 2) analyze federal court opinions for cases relevant to that issue; and 3) write article. This process, which we might label “issue analysis,” has served, and will continue to serve, legal scholarship well. Issue analysis is very effective for evaluating and analyzing court handling of specific doctrines, statutes, and regulations. Less frequently, federal courts scholarship seeks to identify larger, often comprehensive, theories of how judges and courts behave, which we might label “behavior analysis.” Such endeavors can apply to the hundreds of thousands cases filed each year in the federal courts. As a result, researchers face significant problems not normally associated with issue analysis, including cherry picking suitable examples, confirmation bias, and inadequate treatment of contrary evidence. Empirical methods are a logical way to deal with those concerns, but publicly available datasets are few and human coding of legal documents can be extremely labor intensive and costly. Thankfully, these problems can be significantly curtailed by using computer-aided content analysis to evaluate large pools of cases.
Chad Oldfather, Joseph Bockhorst, and Brian Dimmer have published a wonderful article, Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship, which illustrates exactly how such research should proceed. The research question they address is a very basic one: how do party briefs affect judicial opinions? One might think such a core question of litigation would have been addressed by numerous studies. However, as the authors rightly explain, the methods for addressing such a question are prone to the classic concerns with using behavior analysis. As a result, there simply has been no tested general theory of how briefs affect judicial opinion writing. Continue reading "Opinions, Briefs, And Computers—Oh My!"
Natalie Bucciarelli Pedersen, The Hazards of Dukes: The Substantive Consequences of a Procedural Decision
, 44 U. Tol. L. Rev.
123 (2012) available at SSRN
The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, by Natalie Bucciarelli Pedersen—aside from having quite possibly the best title of any article, ever—is an important and informative reminder that one of the most newsworthy and talked about cases of the past decade, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has import and significance beyond the realm of class action lawsuits. Indeed, as Professor Pedersen makes clear, the Supreme Court “not only reversed the grant of class certification to one of the largest employment discrimination classes ever, but also indelibly altered the substance of employment discrimination law.” (P. 124.) The major contribution of this article is its original examination of the impact of the language and law in the Dukes opinion on substantive Title VII jurisprudence as it applies to the adjudication of disparate impact cases, systemic disparate treatment cases, and implicit bias cases that utilize social framework evidence.
As Professor Pedersen recounts, in 2011, the Supreme Court reversed a grant of class certification to some 1.5 million female Wal-Mart employees who claimed that they were victims of sex discrimination because of inequalities related to the employer’s salary, promotion, and management track policies and procedures. The policies and practices alleged, however, were not explicitly discriminatory. In making out their disparate impact claim, the plaintiffs pointed to the delegation of decision-making discretion to local managers when it came to pay and promotion decisions. In making out their disparate treatment claim, the plaintiffs alleged that despite knowing of the disparate impact conferred upon women by the unfettered discretion afforded to local managers, Wal-Mart intentionally failed to remedy the situation. The District Court certified a class of at least 1.5 million women, and the Ninth Circuit agreed that the class certification requirements set forth in Federal Rule of Civil Procedure 23(a) had been met. The Supreme Court, however, reversed the Ninth Circuit’s holding that class certification had been appropriate in the case, finding that the plaintiffs did not “depend upon a common contention.” (P. 128.) Continue reading "A Fresh Look at Dukes"
Recently, there has been a flowering of family law scholarship critically examining what Janet Halley calls “family law exceptionalism,” the tendency in the law to treat the family as a special realm wholly divorced from market relations and to steer family matters, regardless of their economic nature, into family law. Although she never uses the term “family law exceptionalism,” Elizabeth Porter’s new article on parental immunity and negligent supervision cases follows in this vein. The article is an indictment of what she regards as the exceptionally favorable treatment of parents under current tort law. Professor Porter argues for ending the special rules favoring parents, applying ordinary negligence principles in parental liability cases, and ultimately sending more cases to the jury.
As Porter reminds us, it is a particularly appropriate time to re-examine the rules governing parental liability. On the cultural front, the steady stream of tragic cases (whether Newtown, Columbine or countless accidental shootings) has reignited perennial questions about the extent of parental responsibility to control dangerous children and whether parents should be held accountable to victims for their failures as parents. On the doctrinal front, the new approach to duty endorsed by the Restatement (Third) of Torts—which calls for presuming a general duty of care and abandoning that presumption only in exceptional cases when there are strong countervailing reasons of principle or policy— has the potential to reopen questions about the scope of parental liability.. Porter’s article suggests that if courts heed the Third Restatement they may well conclude that parental liability cases are not so exceptional after all, ushering in what would be a major, very concrete change in tort doctrine. Continue reading "The Exceptional Case of Parental Negligence"
Intestate succession law has traditionally been directed toward accomplishing two objectives: effectuating the likely intent of intestate decedents and minimizing administrative costs. Within the so-called “traditional” family, those objectives are rarely at odds. As a result, intestate succession law has traditionally been relatively simple: the decedent’s property is distributed to the decedent’s spouse and issue, and the only areas of controversy surround how much the spouse should take, and whether distribution to issue should be per stirpes, per capita, or by the UPC’s more refined “by representation” scheme.
In her recent article, however, Professor Susan Gary identifies the growing complexity in intestate succession law. That complexity is a response to increasing recognition that intestate succession statutes designed for the traditional family often frustrate the intent of decedents whose family is not traditional. To deal with non-traditional families, Professor Gary notes that a number of states have attempted to bring domestic partners, children born through assisted reproduction, stepchildren, and even informally adopted children within the intestate succession scheme, and cites a variety of scholarship supporting this expansion. Similarly, she identifies statutory provisions designed to disinherit intestate heirs when it would appear that the decedent would not want those heirs to take; in addition to slayer statutes, she discusses cases of child or spousal abandonment, and cases of elder abuse. These refinements of more traditional intestate succession statutes presumably increase the number of cases in which intestate succession doctrines effectuate the intent of intestate decedents, but, as Professor Gary observes, they are not perfect; they do not anticipate all of the circumstances in which a decedent might want to vary the most common patterns of distribution. Continue reading "Rules or Standards For Intestate Succession?"
It’s always nice when you can combine outside reading for fun with something that is educational and at least indirectly professionally relevant. Benn Steil’s economic and diplomatic history of the 1944 Bretton Woods conference, which established the post-World War II global framework for currency relationships and international trade (while also creating the International Monetary Fund and the World Bank) filled this niche for me during a quiet weekend. While the subject is not literally or directly related to taxation, it touches so closely on finance, macroeconomic policy, and international trade as to occupy a common universe with overlapping concerns.
The book tells a lively story, in which U.S. Treasury economist Harry Dexter White – an ardent economic nationalist yet also a Soviet mole – thoroughly squelched the great English economist John Maynard Keynes (the U.K.’s chief negotiator) in establishing the postwar regime for trade, currency, and capital flows. With the U.S. economically dominant and the U.K. reduced to begging for loans, Keynes would have had no chance even had he been better at converting his analytical and epigrammatic skills into diplomatic ones. Continue reading "Trade, Currency, and International Cooperation"
In the 1970s and 80s, a significant debate emerged around the role played by lawyers. Based on the American Bar Association model code, associated documents and case-law, several moral philosophers, and a few lawyers, characterised legal representation as comprising two overarching principles. The principle of neutrality, they said, demanded that lawyers represent clients or causes they may disagree with morally. The principle of partisanship demanded that they fulfil their client’s wishes to the limits of the law. Provided they fulfil these tasks faithfully, they were morally absolved on the grounds that the role they perform is itself good. This constituted a third principle: non-accountability.
Numerous critics of this ‘standard conception’ of the lawyer’s role found it morally indefensible. Despite some spirited justifications and more nuanced rejoinders, the balance of debate moved on to the consequences of such a conclusion and the steps that should follow. At one end of the spectrum lay measures such as encouraging lawyers to select clients on moral grounds. The middle ground was occupied by proposals that lawyers have discretion to ignore ethical norms producing immoral outcomes. More radical solutions involved abandoning the adversarial system or the de-professionalization of lawyers. Wendel is one of many scholars who, often in book form, have recently revisited the issue of the standard conception of the lawyer’s role. Continue reading "Re-Conceiving The Lawyer’s Role And The Foundations of Legal Professional Ethics"
Samera Esmeir’s ambitious book, Juridical Humanity: A Colonial History, explores the legal transformation of British-ruled Egypt between the 1880s and the 1930s. With news from Egypt the subject of daily headlines, the book is timely and important. However, it is Esmeir’s innovative treatment of her subject that truly makes this book deserving of the widest readership. In contradistinction to a powerful tradition of writing about colonialism, Esmeir sees in the legal colonization of Egypt not the occlusion of Egyptians’ intrinsic humanity, but instead the instantiation of “humanity” as the object of colonial law’s solicitude. This is the “juridical humanity” of the book’s title.
Naming “humanity” as its teleology, Esmeir argues, colonial law sought to reconfigure Egyptian society according to “humanity”’s logic. The pre-colonial legal tradition, one with which the overwhelming majority of Egyptians identified, came to be roundly dismissed as inhuman, barbaric, and violent. With the goal of “humanizing” Egyptian society, colonial law reconfigured Egyptian social relations in a range of contexts: labor, gender, incarceration, the treatment of animals, and so on. European and Egyptian legal elites participated enthusiastically in this “humanizing” project. As Esmeir skillfully shows, however, the effect was not to rid Egyptian society of violence, but rather to produce a different relationship to violence: one that carefully measured, calibrated, and fitted violence to the imperatives of “humanity.” It is hard not to recognize in Esmeir’s account the pre-history of the human rights-led imperialism of our own day, with its lurid depictions of various social oppressions in the non-Western world that legitimize Western military intervention. Esmeir clearly has this in mind. Continue reading "Colonizing Humanity"
Kate Darling, What Drives IP without IP? A Study of the Online Adult Entertainment Industry, (February 1, 2013), available at SSRN.
Throughout media history, purveyors of illicit content have always had to think on their feet when faced with economic or legal dilemmas. Never the darling of regulators, law enforcement, or public representatives, adult entertainment companies have pretty much been left to their own devices for dealing with new challenges. It comes as no surprise, then, that in a post-Napster era of expansive networks, easy copying, and free content, porn producers must rethink how they approach their products and profitability.
In her excellent article, What Drives IP without IP? A Study of the Online Adult Entertainment Industry, MIT Research Specialist Kate Darling investigates the current state of the American sexual expression industry to sort out the various perspectives and approaches its players are taking to the shifting ground they currently tread. What she finds is both an affirmation of numerous common sense intuitions (e.g., that porn producers rely less on copyright enforcement and more on lower costs, higher video quality, content curation, and targeted marketing to maintain market share), as well as some surprising discoveries (e.g., that “experience goods” such as live interaction, gaming, and 3D are becoming a staple for building solid online brands). Continue reading "Knowing a New Business Model When You See It: Adult Entertainment Innovations And Adaptations in a Post-Napster Era"
Jessica L. Roberts’s recently published article, “Healthism”: A Critique of the Antidiscrimination Approach to Health Insurance and Health-Care Reform, offers a provocative, thoughtful rebuttal to the antidiscrimination rhetoric surrounding the Patient Protection and Affordable Care Act (“ACA”). Some of the ACA’s most popular reforms, namely, the ban on preexisting condition exclusions, guaranteed issue and renewal, and community rating were touted as eliminating insidious health insurance industry practices that—in then-candidate Obama’s words—“discriminat[e] against those who are sick and need care the most.” Roberts cites another commentator who characterized the ACA as a “civil bill of rights for the sick.” But, as Roberts aptly notes, the practice of “discriminating” against the insured on the basis of health conditions and expected risk is endemic to commercial health insurance underwriting.
For her titular concept, Roberts refashions the term “healthism,” defining it “as discrimination on the basis of health status.” She argues that despite the political rhetoric surrounding federal health reform and ACA provisions intended to eliminate “healthism,” other provisions of the law in fact operate as proxies for health status discrimination. She notes that previous federal statutes intended to eradicate healthism similarly fell short of this goal. The ACA, on its face, surely does eliminate discrimination, first, by requiring “guaranteed issue” and, second, by requiring “community rating.” Guaranteed issue means that health insurers must sell a policy to any individual, regardless of preexisting conditions, and community rating means that the insurer cannot discriminate in the price of the policy based on preexisting conditions or other health status indicators. Continue reading "Healthism, Health Care Rights, and the Affordable Care Act"