The Empirical Truth About Qualified Immunity

Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017).

The critical scholarly narrative surrounding civil rights litigation is that the Supreme Court in the past decade has expanded the defense of qualified immunity, particularly through a series of per curiam reversals of qualified-immunity denials, with the Justices impatiently demanding that lower courts properly (and expansively) approach immunity. The effect has been to slam the courthouse doors on injured plaintiffs. Expansive qualified immunity insulates all but the “plainly incompetent” and those who knowingly violate the law. It shields officers against liability except for the rare case in which the officer violated a constitutional right that was “clearly established” by binding precedent finding a constitutional violation on factually similar conduct in factually similar circumstances, or the rarer case in which the violation was so obvious in light of general constitutional principles (such as tying a prisoner to a hitching post in the sun for seven hours). And the Court moved the doctrine in this direction for unabashed policy reasons—to insulate law-enforcement and other public officials from the cost, burden, distraction, and expense of litigation, discovery, and trial, by raising the bar for liability and requiring resolution of immunity early in litigation.

In How Qualified Immunity Fails, Joanna Schwartz’s empirical study shows both the critical narrative and the Court’s purported goals to be empirically unsupportable. Continue reading "The Empirical Truth About Qualified Immunity"

When Reading the Fine Print is Actually Worse for Consumers: The Case of Unenforceable Terms

While disclosure has been the preferred regulatory tool to ameliorate problems arising from imperfect information, it often fails. In particular, everyone is familiar with the problems associated with not reading fine print: some blissfully uninformed consumers later regret a transaction once they discover hidden charges or attributes described in the unread contract. Formal research confirms that few consumers pay attention to fine print and that disclosures are poorly designed and too abundant to be effective.1

The promise of mandatory rules is to avoid these problems. If sensibly drafted, they can rescue consumers from the perils of their own inattention or laziness. Take landlord-tenant laws. In most states, the warranty of habitability and other rules afford tenants a host of legal rights, such as the right to retain payment of rent if the landlord does not deliver the property in livable conditions or fails to keep appliances functional. Continue reading "When Reading the Fine Print is Actually Worse for Consumers: The Case of Unenforceable Terms"

Making Sense of Causation in Mixed Motives Cases

Andrew Verstein, The Jurisprudence of Mixed Motives, 127 Yale L.J. (forthcoming), available at SSRN.

To say that the law of causation in mixed motives cases is a mess would be an understatement, as Andrew Verstein highlights in his article, The Jurisprudence of Mixed Motives. Most antidiscrimination laws require causation. That is, these laws proscribe adverse employment actions when they occur “because of” a protected characteristic, such as race or sex. The problem is that there are several types of causation, particularly where multiple motives are involved – which is almost always. Yet, few of those statutes specify what type of causation is required. Other statutes specify what type of causation is required, but with no clear definition (e.g., “motivating factor” causation, referenced in the Civil Rights Act of 1991). To make matters worse, courts and commentators often throw other undefined or ill-defined terms into the mix. And if we were inclined to look at other legal fields, such as tort law or constitutional law, in order to make sense of causation in employment discrimination law, we tend to encounter yet more ill-defined terms.

One might think – or at least hope – that it would be possible to (1) identify the universe of potentially applicable causal standards; (2) clearly define each of those standards (and their relationship to one another); and (3) attach a universally applicable and accepted label to each causal standard. That is, we might imagine a Rosetta Stone that would allow us to clear up the confusion that reigns in the Babel of causation. Such a tool would allow us to describe the law with precision and engage in meaningful (and perhaps even cross-substantive) discussions about the normative merits of any particular causal requirement. Continue reading "Making Sense of Causation in Mixed Motives Cases"

Expressivism, Corrective Justice, and Civil Recourse

Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 1 (2017), available at SSRN.

With clear examples, incisive and sweeping philosophical argumentation, and an engaging prosaic lilt, Scott Hershovitz writes about tort law the way his mentor Ronald Dworkin wrote about constitutional law. If this sounds like high praise, it is. Hershovitz’s Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 1 (2017) is a pleasure to read. Indeed, I regard Treating Wrongs as Wrongs as one of the most important torts articles published in many years. Its excellence of course motivates me to push hard against its central themes to see whether they stand up.

Hershovitz’s principal claim in this article is that “tort law is very much an expressive institution.” He explains what it means to say that an area of law is an expressive institution, why this is correctly said about tort law, what messages tort law expresses – “this person is entitled to be treated with dignity” and “the defendant wronged the plaintiff” – and why it is an important fact about tort law that it sends these messages. Continue reading "Expressivism, Corrective Justice, and Civil Recourse"

What Don’t You Know and How Will You Learn It?

Susan Nevelow Mart, The Algorithm as a Human Artifact: Implications for Legal [Re]Search, 109 Law Libr. J. 387 (2017).

For those of us who are not engineers or programmers, magical results appear when we run searches in legal databases. However, we have little understanding of the machinations behind the ever-present e-wall. What kind of confidence can we have when the underlying structure of legal databases are hardwired with human biases? We must ask ourselves the question posed to then-Senator Obama and Senator McCain at a Town Hall Debate in 2008, “What don’t you know and how will you learn it?”

When I teach legal research, my students compare the same searches in different databases. One goal is to demonstrate that there are different results. But a more nuanced goal is to examine the results closely enough to provide insights into which databases might be more useful for updating, for case searching, for browsing statutes, and other research tasks. Susan Nevelow Mart’s study will elevate these discussions because of her focus on human-engineered algorithms and the inherent biases in the databases used for legal research. This study will also guide researchers to think more about search strategy and will help set more realistic expectations about search results. Continue reading "What Don’t You Know and How Will You Learn It?"

Using an Interesting Conversation to Teach Testamentary Capacity

Stephen R. Alton, The Strange Case of Dr. Jekyll’s Will: A Tale of Testamentary Capacity, 52 Tulsa L. Rev. 263 (2017).

The Strange Case of Dr. Jekyll and Mr. Hyde is a popular novella that was published by Robert Louis Stevenson in 1886. In the novella, Gabriel Utterson, a lawyer, investigates strange events involving Dr. Henry Jekyll and Edward Hyde. Dr. Jekyll is a respected man and Mr. Hyde is suspected of killing several people. Mr. Utterson becomes upset when Dr. Jekyll produces a holographic will that leaves the bulk of his estate to Mr. Hyde. He believes that Dr. Jekyll’s actions are a result of blackmail on the part of Mr. Hyde. After Dr. Jekyll commits suicide, Mr. Utterson finds a letter in which Dr. Jekyll confesses that he used a potion to transform himself into Mr. Hyde. Because he is unable to prevent himself from turning into Mr. Hyde Dr. Jekyll kills himself. In his entertaining and well-written article, Professor Alton presents an imagined conversation that he has with Mr. Utterson.

Their imagined conversation focuses on Dr. Jekyll’s testamentary capacity at the time he wrote the will leaving his property to Mr. Hyde. The article starts with a discussion of Dr. Jekyll’s general mental capacity. Professor Alton asserts that, on several occasions, Mr. Utterson indicated that he thought that Dr. Jekyll was of unsound mind. Professor Alton explains the standard courts apply to determine testamentary capacity. Because he teaches in Texas Professor Alton relies on Texas law. Under Texas law, the soundness of mind requirement is satisfied if the testator can understand (1) the activity in which he or she is engaging; (2) the nature and extent of his or her property; (3) the intended beneficiaries; (4) his or her dependents; and (5) the manner of distribution that he or she is making. The testator must also be able to form a reasonable judgment with regards to the four enumerated factors. Both Professor Alton and Mr. Utterson agree that the first four elements of the test were satisfied. Nonetheless, Mr. Utterson states that he believes that Dr. Jekyll “was so deranged in his mind that he could not form a reasonable judgment as to the other elements.” Therefore, Mr. Utterson thinks that Dr. Jekyll lacked the testamentary capacity to make a valid will. However, Professor Alton is not willing to concede that point because the capacity necessary for a person to make a will is so low compared to what is required for a person to execute a contract. Continue reading "Using an Interesting Conversation to Teach Testamentary Capacity"

Yes, There is Such a Thing as Too Much Transparency

Ashley Deeks, A (Qualified) Defense of Secret Agreements, 49 Ariz. St. L.J. 713 (2017).

In a world where secret meetings and resulting agreements seem particularly suspect, it might be tempting to think that the growing norm of transparency might keep the world a more harmonious place. Woodrow Wilson famously extolled the virtues of “open covenants of peace, openly arrived at….” Ashley Deeks, in her recent article, A (Qualified) Defense of Secret Agreements, asks us to think again of this norm and dictum. Her article is one I like a lot, and I hope others active in the study and shaping of international law and international relations do as well.

To be sure, secret agreements, Deeks reminds us, have done much to undermine international stability. The exposure of the Sykes-Picot Agreement—carving the Ottoman Empire into British and French spheres of influence with certain gains for Russia—remains good evidence among many in the Middle East that all past, current, and future interventions by US or European countries are driven by ulterior, territorial motives. Agreements between the Obama administration and regimes not particularly well-known for their strong human rights records have expanded the practice of extrajudicial killing through drones and other technologies. Additional contemporary examples might be the “Trump Tower meeting,” the “secret” US-Israeli agreement to broadly destabilize Iran, a covert agreement giving Russia free hand in Syria. Continue reading "Yes, There is Such a Thing as Too Much Transparency"

The Perils of Wellness

Gordon Hull & Frank Pasquale, Toward a Critical Theory of Corporate WellnessBioSocieties (2017).

The non-stop growth of employee wellness programs presents a rich teaching (and scholarly) opportunity for health law faculty. We can interrogate the employers’ continued embrace of wellness programs, despite the absence of proven cost savings, and consider concerns about the programs’ purported voluntariness and the heavier burdens they place on workers who find meeting program demands difficult or objectionable. We can explore the evolution of laws (HIPAA and the ACA) establishing the legal parameters of wellness programs and how federal agencies have issued regulations seeking to reconcile their incentive structures with the anti-discrimination principles found in the ADA, GINA, and the ACA itself.

A new article by philosophy professor Gordon Hull and law professor Frank Pasquale offers a critical perspective on what wellness programs do accomplish for employers, even if they don’t produce health plan cost savings. The authors’ basic thesis is that wellness programs serve as a vehicle for employers to exercise increasing control over employees’ non-work lives and in the process to “entrench the idea that one belongs to one’s workplace, extending market relations … into the home and other spaces.” By drawing on philosophy (primarily Foucault) and neoliberal economic theory (for example, Gary Becker’s human capital theory), Hull and Pasquale unveil harms associated with employer wellness programs that go beyond concerns about worker privacy and their disparate impact on unhealthy or disabled employees. Integrating aspects of health law, political philosophy, and data analytics, the article offers a fresh, and troubling, view of wellness programs. Continue reading "The Perils of Wellness"

Governing The New Governors and Their Speech

Jack M. Balkin, Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech RegulationU.C. Davis L. Rev. (forthcoming 2018), available at SSRN.

Jack Balkin is one of the leading thinkers and visionaries in the fields of information and cyber law. Every one of his scholarly contributions must be closely read. His recent article, Free Speech in the Algorithmic Society is no exception. It is highly recommended to those interested in fully understanding the current and future tensions between emerging technologies and human rights. The article also provides numerous gems – well-structured statements that eloquently articulate the central challenges of the day, some of which are quoted below.

The article starts off by introducing and defining the “Algorithmic Society” as one that “facilitates new forms of surveillance, control, discrimination and manipulation by both government and by private companies.” As before, society is driven by those seeking fame and fortune. However, much has changed. For instance, Balkin lists the four main sources of wealth the digital age brings about as “intellectual property, fame, information security and Big Data.” To achieve such wealth in this society, individuals are subjected to being governed by algorithms. At the same time, firms and governments achieve “practical omniscience”, while not only knowing what is happening but often accurately predicting what will happen next. These enhanced abilities, Balkin warns, lead to power asymmetries between groups of people (and not only between individuals and technologies) and generate several substantial challenges. Continue reading "Governing The New Governors and Their Speech"

Rethinking Capital Felony Murder

Guyora Binder, Brenner Fissell, & Robert Weisberg, Capital Punishment of Unintentional Felony Murder, 92 Notre Dame L. Rev. 1142 (2017).

Guyora Binder, Brenner Fissell, and Robert Weisberg combine to address a significant flaw in the application of Supreme Court’s Eighth Amendment jurisprudence—the application of the Eighth Amendment to unintentional felony murder—in their recent Notre Dame Law Review article. Specifically, the authors argue that lower courts have misread the applicable Supreme Court precedents, Edmund v. Florida and Tison v. Arizona, to reach the unfortunate conclusion that an offender committing an unintentional felony murder is eligible for capital punishment.

Both cases address the application of the Eighth Amendment to felony murder. Enmund held that Florida’s imposition of the death penalty for felony murder violated the Eighth Amendment because the state failed to prove that Enmund killed or attempted to kill. Tison, by contrast, narrowed the holding of Enmund by finding that felony murder could serve as the basis for a death sentence in certain cases and not violate the Eighth Amendment. Particularly, the Tison court held that individuals who are major participants in a crime and demonstrate reckless indifference could receive the death penalty even though they did not kill or attempt to kill the victim. Continue reading "Rethinking Capital Felony Murder"