By now, many JOTWELL readers will already have read (and re-read, and maybe even already assigned for class) Ta-Nehisi Coates’ stunning article in The Atlantic, “The Case for Reparations.” In this JOTWELL recommendation, then, I write not so much to recommend the article as something we like (though for those readers who have not yet read, I ask, “What are you waiting for?”) but to ask a different question. I write because after reading this journalistic masterpiece, which blurs the line between multimedia reportage, impassioned advocacy and rigorous scholarship, I am provoked to ask, in all seriousness, shouldn’t we scholars be rethinking the form that we use to do what it is that we do? Why aren’t more of us doing what he’s doing?
First, a brief review. Substantively, the article can be divided into four parts (though Coates divides it into ten). In the first part, we are introduced to Clyde Ross whom we meet in 1920s Jim Crow Mississippi. Whites steal land and a horse from the Ross family with impunity. Ross and the story move to 1960s Chicago, where Ross is robbed again, this time fleeced through a scheme in which houses are sold “on contract,” a draconian rent-to-own scheme in which buyers late on their payments can be evicted and left with no property or refunded equity. Finally, through Ross, we are introduced to the debilitation of modern-day North Lawndale Chicago—income and wealth half the rate of white communities, poverty, unemployment and infant mortality at twice the white rates, skyrocketing crime rates and a plummeting population. Continue reading "A Journalist Takes on the History of White Supremacy"
Mulligan, Christina, The Cost of Personal Property Servitudes: Lessons for the Internet of Things
(July 14, 2014). Available at SSRN
Property scholars have long noted a peculiar inconsistency between real and chattel property. While law increasingly tolerates different forms of ownership in and servitudes limiting the use of land, it has remained steadfastly resistant to such restrictions in the context of personal property. In her sharp new paper, “The Cost of Personal Property Servitudes: Lessons for the Internet of Things,” Christina Mulligan shows that this long-lamented inconsistency isn’t a problem at all, but rather a sensible distinction that flows naturally from the core differences between real and chattel property. This insight not only helps explain a longstanding puzzle in property law, but sheds new light on the increasing practice of content owners using license agreements to restrict the use of digital goods.
From a purely formal perspective, one might reasonably wonder why courts allow increasing complexity in real property ownership—from historical forms like contingent remainders and fees simple subject to executory limitation to modern innovations like condominiums and time-shares—while insisting that no such variation is permitted with respect to chattels. If I can have a defeasible fee interest or a time-share in a vacation home in Boca Raton, why not also in a Rolex or a refrigerator? This seeming has engaged scholars since Coke. Most recently, Molly Van Houweling investigated contract-based restrictions on personal property from the perspective of physical property, suggesting that the same concerns that warrant skepticism about servitudes on real property may be used to govern servitudes in the context of personal property as well. Continue reading "An Information-Cost Critique of Chattel Property Servitudes"
Thomas L. Greaney, Regulators as Market-Makers: Accountable Care Organizations and Competition Policy
, 46 Ariz. St. L. J
. 1 (2014), available at SSRN
Most discussions of the Affordable Care Act (ACA) focus on its primary goal—expanding health insurance coverage. Often overlooked, however, are various ACA initiatives targeting another important goal—reigning in health care costs. Included among these initiatives is the Medicare Shared Savings Program (MSSP). The MSSP ambitiously seeks to shift the health care delivery system away from independent providers who provide costly, uncoordinated care to organizations that focus on coordinated, evidence-based care. Specifically, the MSSP encourages the formation of accountable care organizations (ACOs), clinically integrated organizations of physicians and other providers that work together to provide patients better care while lowering overall costs.
Proponents of ACOs believe ACOs hold great promise for slowing the growth in health care costs. Professor Greaney’s article, however, offers a cautionary note. As he explains, the movement toward ACOs threatens to exacerbate the problem of health care providers’ increasing market power. Although federal regulators are cognizant of this risk, Greaney contends that the MSSP’s regulatory framework does too little to prevent provider market power. Continue reading "The Medicare Shared Savings Program: A Missed Opportunity to Address Providers’ Growing Market Power"
In asking What Makes the Family Special? Kerry Abrams posits an alternative approach to family-based immigration policy, eschewing “the old family/market dichotomy that family law scholars have been deconstructing for decades.” Family-based and employment-based immigration are, of course, the two largest classes of admission to the United States and each one seeks to elicit different, and, at times, conflicting policy goals. Abrams sees a clear dividing line between the two approaches. On one side stand proponents of expansive, family-based immigration who, in Abrams’ view, tend to rely on “soft,” rights-based arguments about human dignity and autonomy. On the other side stand those who view immigration, above all else, as a tool for optimizing labor markets. They tend to rely on “hard” economic arguments to make that case.
Abrams proposes a third way that considers how family-based immigration might benefit American society as a whole. This approach combines features from both sides of the family/market divide, embracing family-based immigration (though not necessarily a functional definition of family) while also relying on somewhat “harder” policy considerations than the ones that typically underpin pure rights-based approaches. Even so, Abrams acknowledges the role of human rights considerations in setting immigration policy: “no nation could make decisions about these issues without considering human rights as part of the calculus.” Although her article is a wide-ranging “thought experiment,” full of big ideas, Abrams is careful to limit herself to identifying potential policy rationales favoring family-based immigration rather than passing judgment on their ultimate plausibility or propriety. Continue reading "A New and Different Way of Looking at Family-Based Immigration Policy"
Thomas Mitchell’s article, “Growing Inequality and Racial Economic Gaps,” argues that reforms to the technicalities through which law constitutes real estate assets and relations may provide a foundation for progressive steps towards racial equality. Published in 2012 as part of a Howard Law Journal symposium on Protest and Polarization, this article starts with a sobering account of the intensification of racialized economic inequality in the US, within a general trend of increasing economic inequality since the 1970s. The first part of the article shows these developments are largely attributable to the large and growing wealth differentials between non-Hispanic whites and the Hispanic and African American populations. By 2009, according to Mitchell, the net worth of the median non-Hispanic White household was 20 times larger that of the median Black household (as compared to the 12:1 ratio in 1988 reported in Oliver and Shapiro’s landmark study and 18 times larger than the net worth of the median Hispanic household). Moreover, Mitchell reports that despite their losing some wealth during the Great Recession, White non-Hispanic households in 2009 generally owned more wealth than they had “for many if not most years between 1984 and 2009” whereas Black and Hispanic households owned “less wealth … than in any year since … 1984” (P. 860).
The second part of the article traces the relationship between rising economic inequality and shrinking intergenerational economic mobility in the US. Again Mitchell synthesizes some potent data to cast doubt on conventional wisdom. It transpires that the American education system no longer enhances social mobility (if ever it did) and indeed “may well be contributing to growing income and wealth inequalities” (P. 865); that the extent of occupational mobility in the United States is no more than average amongst industrialized countries; and that the level of intergenerational income mobility is demonstrably worse than that of neighboring Canada and below the norm for industrialized countries (P. 867). Continue reading "By All Means Possible"
Neil M. Richards & William Smart, How Should the Law Think About Robots?
available at SSRN
The article seems dated for a review here. There are newer ones on the subject, like e.g., Ryan Calo’s “Robotics and the Lessons of Cyberlaw” of 2014, for example. But the Richards & Smart article sticks in my mind. Maybe because, while both are premature (I will come to that immediately), this article makes a—or better—the fundamental point about law and politics in the face of changing technologies in a very simple and clear way.
“Premature” used to be the comment we would receive from the European Commission when we, at the heyday of European cyber regulation, as members of the Legal Advisory Board, an independent expert group abolished long since, would suggest a new initiative outside the Commission’s own agenda. Some of the readers may have encountered this word when presenting new ideas as legal counsel. I have never taken it as a derogatory term. “Premature” signifies a quality, if not an obligation, of legal proactive comment and advice. In that sense dealing with robotics and law is premature, and so are, by the way, the “We Robot” Conferences (established in 2012) which give context to this article, a conference series in which—disclosure is due—our Editor-in-Chief has been involved prominently.
The fundamental point is slow in coming: Richards & Smart start with a definition of a robot: a “non-biological autonomous agent,” i.e. “a constructed system that that display both physical and mental agency but is not alive in the biological sense.” We all are familiar, as the authors point out, with all sorts of robots. We know them from science fiction readings and the movies. There is already the small round disk that cleans our sitting rooms. There has been the automated assembly of cars by industrial robots. And lately these cars drive around themselves as robots guided by Google. And robots, the authors argue, will become increasingly multipurpose, gain more autonomy, and turn from lab exhibits into everyday devices communicating with each of us at any time. Law? There is a reference to the Nevada state regulation of 2011 for those car robots. But otherwise the article mentions legal implications only in a very general way; there is no discussion; there is not even a listing of possible legal problems. Continue reading "About Fallacies"
Sift through any number of Fourth Amendment decisions from the Supreme Court, and you will find many general observations about the police: that theirs is a dangerous profession, or that they possess a specialized instinct for spotting criminal behavior. Typically, such statements are made without citation to any source. How do the Justices know these facts? And are such statements accurate?
That is the central issue in the insightful article Policing Facts, written by Seth Stoughton (himself a former police officer turned law professor): what should we think of general observations about police that are made by the Court? While we expect Supreme Court decisions to discuss the facts that arise out of a particular case, it is also true that in resolving the issues the Justices will often make some assertion about policing in general: such as the working environment of the police, police practices, or police psychology. (Indeed, as Stoughton notes, the Court is quite willing to make general observations about nearly every aspect of policing.) While some of these “legislative facts” are supported by citations, more typically they aren’t. (P. 857.) These policing facts appear seemingly from nowhere. What’s wrong with inserting unsupported statements about the police into opinions? As Stoughton argues, policing facts are “simply wrong almost all of the time.” (P. 868.)
The Court’s regular use of unsupported policing facts will not surprise many, but hardly anyone has noticed its importance before. Of course, a mainstay of criminal procedure scholarship is the critique of the Supreme Court’s decisions for their normative undesirability or their doctrinal confusion. But what if the Court gets the basic factual premises wrong? Continue reading "Influential But Uninformed: What Scotus Knows About Policing"
Martin H. Redish & Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism
, Wm. & Mary L. Rev. (forthcoming, 2014), available at SSRN
The differences between the composition and independence of the federal and state judiciaries have often been stated in simplistic terms—federal judges are appointed and state judges are elected, so the former enjoy greater independence while the latter are subject to greater popular accountability. But several instances of non-retention of state judges, often on the heels of controversial decisions, show that the real threat to judicial independence is not popular election as the means of initially selecting judges. Rather, the problem is popular election as the means of retaining judges once selected.
As Martin Redish and Jennifer Aronoff argue in a new article, “Judges will always owe their job to someone, and often someone who may at some point appear before them or be directly impacted by their decisions.” Instead, “the threat that a judge might make decisions on the basis of what might win him another term in office (and thus ensure his continued livelihood) looms constantly.” If the goal is to ensure judicial independence at the state level that looks more like judicial independence at the federal level, initial selection is largely irrelevant—the focus must be on creating better systems of retention. However a judge obtains her position initially, she should not have to worry about whether a particular decision will adversely affect her ability to retain that position. Continue reading "Judicial Retention Meets Due Process"
Elizabeth Pollman, A Corporate Right to Privacy
, 99 Minn. L. Rev.
(forthcoming, 2014) available at SSRN
Professor Elizabeth Pollman explores the validity and scope of a constitutional right to privacy for corporations in a thought-provoking forthcoming article, A Corporate Right to Privacy. In light of the discussions and debates about the rights of corporations surrounding the Supreme Court’s recent Hobby Lobby decision, the article provides an insightful perspective for thinking about the rights and limitations of constitutional protections for corporations, in particular those relating to the right to privacy.
The article is methodically structured and carefully presented for the reader. Pollman states her measured, core argument early in the article:
This Article argues that corporations hold rights derivatively, to vindicate the rights of natural persons associated with or affected by the corporation. Accordingly, most corporations in most circumstances should not have a constitutional right to privacy….Yet because corporations are not monolithic, but rather exist along an associational spectrum, this Article also highlights that some nonprofit and private corporations could present a stronger claim given their varying purposes and dynamics, particularly in social, political, and religious realms.
Pollman, then, deftly reviews decades of federal and state law relating to corporate privacy, explains her derivative approach for adjudicating corporate constitutional rights, and closes by applying that derivative approach to the right to privacy. The writing in the article is lucid, and the analysis is nuanced. The article recognizes the complexities and sensitivities of examining issues at the intersection of privacy and corporations. It avoids bold pronouncements and omniscient schemes by being mindful of the diversity of considerations relating to privacy and corporations. Continue reading "Corporate Privacy"
Why does our republic accept judgments invalidating decisions of presidents, congresses, and federal agencies? Why do state authorities elected by local constituents accept decisional overrides by federal judges? These questions, often called “the counter-majoritarian difficulty,” have drawn the attention of scholars for decades.
Professor Ronald Krotoszynski’s “The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power,” casts new light, albeit indirectly, on this paradox. Descriptively, the article usefully examines the design parameters (constitutional, statutory, and procedural) of the federal judicial power. Normatively, it suggests hidden strengths to these parameters, which improve the quality and acceptance of judicial decisions that are often overlooked by analysts and reformers. Continue reading "Dispersing Judicial Power"
Miriam Seifter, States as Interest Groups in the Administrative Process
, Va. L. Rev.
(forthcoming, 2014), available at SSRN
Recent scholarship on administrative federalism has advocated for federal agencies to consider state interests—with many scholars praising the notion of giving states a voice in the federal regulatory process. However, in arguing for a strong partnership between states and federal agencies, federalism scholars have given little attention to what costs might flow from state involvement in federal administration. In States as Interest Groups in the Administrative Process, forthcoming in the Virginia Law Review, Professor Miriam Seifter astutely points out this void in the scholarship, and she begins to fill the scholarly gap by carefully scrutinizing and weighing the costs and benefits of state interest group participation in the federal regulatory process.
Specifically, Professor Seifter, who recently joined the University of Wisconsin Law School as an assistant professor, argues that—contrary to the prevailing view of many federalism scholars—state involvement in federal regulation is not all rosy. Rather, she asserts that state interest groups—which she defines as “organizations of state elected or appointed officials whose mission is to represent the official interests of their members, particularly in front of the federal government” (P. 8)—impose significant costs on the administrative process. Continue reading "Scrutinizing the Effects of State Interest Group Participation in Federal Administration"