Modernizing Immigration Enforcement

Amanda Frost, Cooperative Enforcement in Immigration Law, 103 Iowa L. Rev. 1 (2017).

Public rhetoric about immigration paints the issues in stark terms. Immigrants are either criminals and terrorists or they are family members, workers, and survivors of persecution. Immigration is either our secret sauce, the key to our national prosperity, or it is the sleeper cell in our midst, the smooth-talking snake. It is about inclusion or exclusion, banishment or return, belonging or outcast. Immigrants are virtual citizens, or vicious vipers. They are law-abiding; they are lawless.

Amanda Frost’s Cooperative Enforcement in Immigration Law describes how this dichotomy in the discourse plays out in approaches to deportation policy. Deportation policy, she observes, is stuck in two parallel grooves. It demands either unfettered deportation of unlawfully present noncitizens, or the exercise of prosecutorial discretion to permit prescribed groups of noncitizens to remain in the United States without a recognized status. Continue reading "Modernizing Immigration Enforcement"

Should Local Governments Have Greater Autonomy from State Governments?

  • Glenn Reynolds, Splitsylvania: State Secession and What to do About it?, available at SSRN.
  • Richard Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163 (2018).

Recent years have seen extensive focus on legal and political conflicts between states and the federal government. Dissenting states seek greater autonomy from federal dictates. Ongoing legal battles over Obamacare and sanctuary cities are just the latest examples of this phenomenon. But we have also seen a lesser well-known trend of conflict between states and local governments. Two new articles, by prominent legal scholars on opposite sides of the political spectrum contend that local governments should have greater autonomy from states. They make a solid case that could be even stronger if each side were more able to acknowledge the concerns of the other.

There is a long history of academic analysis of state-local relations, and scholars such as Yale Law School Dean Heather Gerken have previously made a case for increasing local autonomy. But these new articles related this longstanding topic to recent political controversies—and to our world of severe political polarization, where the conflicts between opposing parties and ideologies are more virulent than they have been for some time. Continue reading "Should Local Governments Have Greater Autonomy from State Governments?"

The Difference Engine: Perpetuating Poverty Through Algorithms

Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor (2018).

We have a problem with poverty, which we have converted into a problem with poor people. Policymakers tout technology as a way to make social programs more efficient, but they end up encoding the social problems they were designed to solve, thus entrenching poverty and over-policing of the poor. In Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, Virginia Eubanks uses three core examples—welfare reform software in Indiana, homelessness service unification in Los Angeles, and child abuse prediction in Pennsylvania—and shows that while they vary in how screwed up they are (Indiana terribly, Los Angeles a bit, and Pennsylvania very hard to tell), they all rely on assumptions that leave poor people more exposed to coercive state control. That state control both results from and contributes to the assumption that poor people’s problems are their own fault. The book is a compelling read and a distressing work, mainly because I have little faith that the problems Eubanks so persuasively identifies can be corrected.

Eubanks writes:

Across the country, poor and working-class people are targeted by new tools of digital poverty management and face life-threatening consequences as a result. Automated eligibility systems discourage them from claiming public resources that they need to survive and thrive. Complex integrated databases collect their most personal information, with few safeguards for privacy or data security, while offering almost nothing in return. Predictive models and algorithms tag them as risky investments and problematic parents. Vast complexes of social service, law enforcement, and neighborhood surveillance make their every move visible and offer up their behavior for government, commercial, and public scrutiny. Continue reading "The Difference Engine: Perpetuating Poverty Through Algorithms"

Innovation Policy Pluralism, or Innovation Policy Hybridism?

Daniel J. Hemel and Lisa Larrimore Ouellette, Innovation Policy Pluralism, 128 Yale L. J. (forthcoming), available at SSRN.

In previous work, Daniel J. Hemel and Lisa Larrimore Ouellette explored the range of tools available to regulators interested in promoting innovation. (See Ted Sichelman’s jot.) While legal scholars addressing innovation policy frequently focus solely on patent law—in fact, the term “intellectual property” is often employed as a synecdoche to refer to the broader scholarly field of innovation policy—Hemel and Ouellette argued that viewing patents, prizes, grants, and tax credits as imperfect substitutes allows the public goods problem that underlies innovation policy to be solved in a variety of different ways, each with its own advantages and disadvantages.

In their most recent work, Innovation Policy Pluralism, Hemel and Ouellette push their earlier argument one step further. They again increase the number of tools in the innovation-policy toolkit by developing a divide-and-recombine approach to intellectual property and its quasi-substitutes. They argue that any given tool for promoting innovation has two “separate and separable” components. First, it has an innovation incentive or a “payoff structure for the producers of knowledge goods.” Second, it has an allocation mechanism that “establish[es] the conditions under which consumers can use knowledge goods.” Hemel and Ouellette provide a thorough, clearly argued, and convincing analysis of the combinatorial possibilities that arise from this finer-grained analysis of the components of innovation-policy regimes. Continue reading "Innovation Policy Pluralism, or Innovation Policy Hybridism?"

Unpacking Safety and Civil Rights Regulation of Genetic Data

Barbara J. Evans, The Genetic Information Nondiscrimination Act at Age 10: GINA’s Controversial Assertion that Data Transparency Protects Privacy and Civil Rights, 60 William & Mary L. Rev. (forthcoming), available at SSRN.

Barbara Evans is one of our preeminent privacy scholars (with a pretty nifty sideline in FDA law). She specializes in intricate and precise analysis, very carefully mixing “big picture” policy arguments with deft doctrinal detail. This article on the Genetic Information Nondiscrimination Act (GINA) is no exception. GINA, of course, was one of the products of The Ethical, Legal and Social Implications (ELSI) Research Program funded by the NIH under the Genome projectThe Genetic Information Nondiscrimination Act at Age 10: GINA’s Controversial Assertion that Data Transparency Protects Privacy and Civil Rights is a timely reminder not only of GINA’s tenth anniversary but also, increasingly, the proliferation of genetic information across clinical, research, and consumer domains. As Evans notes, “If GINA failed in its first decade to save us from genetic discrimination, it may have been a harmless error, because the human genome was too poorly understood at the time to lend itself to very many nefarious uses. If GINA failed, then so did the science, and it all somehow worked out. This does not imply, however, that GINA’s civil rights protections are unimportant; they may simply have been premature.” Another reminder inherent in the article is that health care suffers from a poorly synchronized combination of data protection models, including the HIPAA Rules, the Substance Use rule (aka 42 CFR Part 2), GINA, the Americans with Disabilities Act, and the Common Rule.

At the core of the article is a most perceptive observation—that GINA expanded the federal regulatory program for genetic and genomic testing from safety regulation to civil rights regulation, including privacy protections and prohibitions on discrimination. At first sight, the specific legal issue to which Evans turns her attention does not seem particularly earth-shattering—a GINA-authorized amendment to the HIPAA Privacy Rule. HIPAA had already allowed patients to access their healthcare data held by physicians. However, the GINA-initiated regulatory change in 2014 granted them access to “laboratory-held data, including genetic and genomic information as well as assorted other diagnostic test results that laboratories hold in their files.” This change did not sit well with a range of health regulators (or the laboratories). They viewed much of the assembled genetic data as incomplete or of sub-clinical quality, yet here were patients being granted legal access to it! Continue reading "Unpacking Safety and Civil Rights Regulation of Genetic Data"

Victims’ Rights and White Power

By coincidence, I was reading Kathleen Belew’s book, Bring the War Home: The White Power Movement and Paramilitary America, the same week I read Jill Lepore’s recent article, The Rise of the Victims’-Rights Movement, in The New Yorker. The overlap was striking and well worth the consideration by legal historians.

Belew’s recent history is about the rise of a white power network across the United States in the years since Vietnam. It explores, through the study of a series of incidents, how a number of seemingly separate white supremacist groups came together, first on the ground and then through the internet. As Belew traces the network’s increasingly violent acts against those it considered outsiders, she shows why its racial view of the world (with its neat categories of “us” versus “them”) ultimately led it to declare war on the federal government in the early 1980s. In the process, she also describes the series of tactical decisions (and missteps) by federal prosecutors that led the government to underestimate and understate the extent of the white power movement. Her book’s great strength is revealing that network’s breadth across time, space, and a series of events culminating in the Oklahoma City bombing in 1995 (the epilogue ties the events in the book to the shooting at Emanuel A.M.E. church in Charleston). Continue reading "Victims’ Rights and White Power"

A Step Toward a Proper Understanding of Constitutional Litigation

Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. __ (forthcoming 2018), available at SSRN.

Everyone—public, media, government officials, courts, and first-year law students—understands constitutional litigation in light of two ideas. From Marbury v. Madison’s declaration that it is “emphatically the province and duty of the Judicial Department to say what the law is,” everyone believes that the Supreme Court gets the final, uncontestable word on what the Constitution says and means. And a court exercising judicial review “strikes down” or “sets aside” or “invalidates” unconstitutional laws, rendering them null and void for all purposes, erased from existence, as if never enacted and no longer available as “law.”

In a new article, Jonathan Mitchell labels this the “writ-of-erasure fallacy,” the erroneous “assumption that a judicial pronouncement of unconstitutionality has cancelled or blotted out a duly enacted statute, erasing that law from the books, vetoing or suspending it and leaving nothing for the executive to enforce now or in the future.” In fact, judicial review is more limited. Having identified a law as constitutionally invalid, a court may decline to enforce that law in a particular case or it may enjoin executive officers from enforcing the law while the injunction remains in effect. But the statute continues to exist as law unless and until repealed by the enacting legislature. It is a fiction that courts “strike down” or “block” or “invalidate” statutes. That fiction creates misunderstandings about constitutional litigation and the effect of judicial rulings in constitutional cases. And that fiction unnecessarily limits the power of the executive to enforce still-existing law and of the legislature to enact new or amended laws. Continue reading "A Step Toward a Proper Understanding of Constitutional Litigation"

Distributed Ledgers, Traceable Shares, and the Division of Power in Corporate Law

George S. Geis, Traceable Shares and Corporate Law, 113 Nw. U. L. Rev. __ (forthcoming 2018), available at SSRN.

Theories of corporate governance, and associated normative claims about the optimal balance of power between shareholders and boards of directors, often gloss over—or ignore entirely—”the recessed plumbing of back-end clearing processes.” To be sure, growing empirical literatures inform such debates by illuminating various strategies of exit and voice deployed by important categories of investors, yet the accuracy, efficiency, and integrity of securities trading and voting mechanisms often go unexplored.  In the article Traceable Shares and Corporate Law, George Geis provides a fascinating window onto the complex mechanics of clearing and voting in publicly traded companies—and particularly how “distributed ledgers and blockchain technology” may revolutionize these processes, with potentially profound implications for corporate law and governance.

As Geis recounts, by the 1960s, transfer of physical stock certificates had become unworkable due to substantial growth in trading volume.  The solution to this problem was “unidentified fungible bulk” shareholding.  Shares now typically reside at the Depository Trust & Clearing Corporation (DTCC), with legal title held by a subsidiary called Cede & Company, which appears as the record holder of the stock in corporate stockholder lists.  Accordingly, when the stock is sold from one investor to another, DTCC simply “transfers beneficial ownership electronically from seller to buyer via bookkeeping adjustments”—obviating the need for slow, cumbersome, and expensive transfers of physical stock certificates. Continue reading "Distributed Ledgers, Traceable Shares, and the Division of Power in Corporate Law"

How Do We Regulate Contracts That We Need and Hate?

About fifteen years ago, Bruce Mann’s Republic of Debtors offered an intriguing narrative about the origins of American bankruptcy law. Among other claims, Mann suggested that debt became respectable when respectable people found themselves in debt. When debt moved in from the fringe, our legal treatment of debt softened.

Anne Fleming tells a related story in our treatment of debt, but her focus is on poor debtors in New York City. Although the small sum loans that she studies may be on the fringe of finance, her account makes clear that the debtors who have relied and continue to rely on fringe finance are many, and together constitute a large, struggling class of workers. They are not outliers to our economic model but an integral part of it. We rely on their low wage labor and their debt-fueled consumption. And we have not devised any alternative to debt, no large-scale method by which low-income people can survive adverse events—at least not one that imposes lighter costs than perpetual debt. Continue reading "How Do We Regulate Contracts That We Need and Hate?"

In Praise of Bureaucracy

Jon D. Michaels, The American Deep State, Notre Dame L. Rev. (2018, forthcoming), available at SSRN.

In The American Deep State, Jon D. Michaels pushes back against the increasingly shrill rhetoric charging that shadowy forces deeply embedded within the federal bureaucracy have commandeered the reins of government and are thwarting the President and undermining the democratically expressed will of the people. Michaels does not shrink from the “deep state” terminology, but rather seeks to co-opt it in an ode to what he calls “bureaucratic depth.”

Michaels extols numerous advantages of bureaucratic depth. First, he notes that bureaucratic depth is, as a practical matter, what makes the state work. It is a measure of state capacity. The deep bench of civil servants in the United States “mak[e] and enforce[e] regulations, design[] and run[] welfare programs, combat[] crime and corruption, and provid[e] for national defense.” These functions simply do not work—or do not work well, consistently, and non-corruptly—in states that lack bureaucratic depth. Second, Michaels argues that for precisely this reason, bureaucratic depth generally facilitates the implementation of the president’s agenda. Presidents should not, as a matter of course, wish for a hollowed out administrative state if they want to advance a political agenda. Finally, Michaels argues that bureaucratic depth can serve important stabilizing and accountability functions. “In those rare instances when presidents (and their hand-chosen agency heads) go beyond the proverbial pale, those in the civil service are particularly well-positioned to challenge, and even to resist, directives lacking a scientific, legal, or commonsensical foundation.” At base, his argument is that bureaucratic depth advances important rule-of-law values by serving as a check on lawless exercises of presidential power. Those outside the civil service are unlikely to have the combination of inside knowledge and protection from retaliation necessary to promote transparency about unlawful, unethical, or extraordinarily unwise presidential initiatives. Continue reading "In Praise of Bureaucracy"