Yearly Archives: 2013
Oct 22, 2013 Karen TaniLegal History
“The inner city deserves a disaster relief plan,” wrote Reverend Jesse Jackson, on the eve of Detroit’s bankruptcy filing and in the wake of Hurricane Sandy. The storm-ravaged coastal communities “all deserve[d] aid,” Jackson emphasized, but in cities around the country a “disaster” was unfolding that was “equally devastating, equally beyond anyone’s fault, and yet essentially ignored at the national level.” Readers may disagree about the merits of the analogy or the wisdom of Jackson’s proposal, but the structure of the argument should surprise no one—at least not after reading Michele Landis Dauber’s important new book, The Sympathetic State.
Since the nation’s founding, Dauber shows, Americans have mobilized the concept of disaster to claim large federal appropriations for those in need, even in decades remembered for laissez-faire governance. Using a “disaster narrative” (P.7), Congress distributed funds to the victims of floods and fires, droughts and earthquakes, Indian depredations and grasshopper plagues. Scholars who write about the welfare state often see a distinction between treatment of the “able-bodied” and those who are unable to work; it is one’s ability and willingness to participate in the market, in other words, that dictates “deservingness.” That distinction is absent, Dauber notes, in the case of disaster relief: the underlying logic of these grants is that the recipients are in desperate need “through no fault of their own.” (P. 34.) Continue reading "The Disaster Relief Precedent"
Oct 21, 2013 Ekow YankahJurisprudence
James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013).
We live in a liberal age, philosophically speaking. One may argue about what variant of liberalism is most persuasive but, on the whole, most theories of law or politics do not seriously question a slate of liberal doctrines, most especially the primacy of individual autonomy, the commitment to “negative liberty” and thus the limitation of state coercion by the harm principle. Perhaps it is an inevitable sign of the dominance of liberalism that a number of scholars have started to more acutely feel its shortcomings more acutely. Thus liberalism is accused by some of being too thick, requiring commitment to a comprehensive world-view that makes individual liberty primary and excluding those who do not take controversial issues of law and politics to be decided by individual rights. Gaining more momentum perhaps, are those who find liberalism too thin, arguing that the hegemony of individual rights leads our legal system to pay insufficient attention to the encouragement and enforcement of the duties of citizenship, civic virtue and morally valuable forms of life of both citizens and communities that cannot flourish without collective political support.
In the face of this increasingly strenuous criticism from both sides steps in Fleming and McClain’s Ordered Liberty: Rights, Responsibilities, and Virtues. Fleming and McClain take up a rather ambitious task. They seek to reform and/or illustrate, in turns, that liberalism of a certain type, their “Constitutional Liberalism,” can meet the challenges leveled at liberalism. The text places itself firmly in that intersection of law, feminism, constitutional theory and political theory. For those interested in purely philosophical discussion of liberalism, the book may seem to only weave in and out of important conversations. That said, it does engage with important and popular contemporary philosophical and theoretical positions in the liberalism literature on liberalism, from Michael Sandel on one side to Cass Sunstein on another. Continue reading "Liberalism Revisited"
Oct 18, 2013 Christopher SprigmanIntellectual Property Law
Katharina Eckartz, Oliver Kirchkamp, & Daniel Schunk, How Do Incentives Affect Creativity (CESifo Working Paper Series, Paper No. 4049, 2012), available at SSRN.
The classic justification for intellectual property laws was perhaps stated best by Abraham Lincoln, who, in speaking of the patent system, characterized its function as “adding the fuel of interest to the fire of genius.” Put less poetically, IP aims to encourage creativity by granting creators exclusive property rights in their creations. That way, if a patented invention or copyrighted work turns out to be worth money, the creator will benefit, rather than a copyist.
That sounds entirely sensible in theory. We think that people generally respond to incentives. Make gasoline more expensive by taxing it, and people generally use less of it. Give people a tax break on home mortgages, and they build more and bigger houses. Make creativity a little less risky, and the payoff a bit more certain, and we’ll get more investment in creative labor. Continue reading "Creative Incentives"
Oct 16, 2013 Amy MonahanHealth Law
Russell Korobkin, Relative Value Health Insurance: The Behavioral Law and Economics Solution to the Health Care Cost Crisis, Mich L. Rev. (forthcoming 2013), available at SSRN.
Nearly all health insurance contracts currently sold in the U.S. cover all medically necessary, non-experimental services, subject to only specifically listed exclusions. As a result, the coverage provided is what those in the benefits industry would refer to as “rich” coverage. If the treatment is non-experimental and is expected to have a positive clinical benefit, no matter how small, it is covered regardless of cost. This rich coverage leads to some predictable problems. Because individuals typically have little incentive to decline treatment that might benefit them, utilization is high and costs rise accordingly. This, in turn, makes health insurance more expensive for all purchasers. Our health system has tried to remedy this issue by adopting managed care structures to create incentives for providers to limit utilization of a treatment where it has only marginal benefits. And, more recently, consumer-driven health care has been developed to create incentives for patients themselves to reduce utilization of marginally beneficial treatment.
Russell Korobkin’s new article seeks to address this well-known problem through a novel use of comparative effectiveness data to create health insurance contracts that only cover services that provide a given level of cost effectiveness. He refers to this type of insurance as “relative value health insurance.” The basic idea is to start with an index of treatments based on cost-effectiveness, with a proposed scale of 1 for highly cost-effective treatments to 10 for treatments with low cost-effectiveness. Health insurance contracts could then be sold based on the level of cost-effectiveness they will cover. For example, insurers might offer a policy that covered all treatments with a rating of 3 or above for $X, while charging significantly more for a policy that covers all treatments with a rating of 7 or above. Korobkin’s basic argument is that relative value health insurance would greatly simplify an individual’s tradeoffs between medical care and competing goods and services. Continue reading "Harnessing the Power of Comparative Effectiveness Research for More Rational Health Care Financing"
Oct 15, 2013 Shani KingFamily Law
Dorothy Roberts has previously written about the impact of widespread incarceration on black families, including the damage to social networks, the distortion of social norms, and the destruction of social citizenship. She has also written extensively about the child welfare system’s injuries to African-American families. In her latest article, Prison, Foster Care and the Systemic Punishment of Black Mothers, Roberts weaves together these two systems and analyzes how they intersect and converge, not only in the lives of African-American families, but particularly in the lives of poor black mothers. Roberts extends her analysis to show how the two systems naturalize social inequality and blame black women for the same inequality that the systems create. In doing so, Roberts exposes a pernicious cycle in which stereotypes about black female criminality and irresponsibility legitimate government intervention. The destructive effects of government intervention, in turn, reinforce those stereotypes.
As Roberts explains, other scholars (including Roberts herself) have exposed prisons and the child welfare system as instruments for social management and racial oppression, particular in African-American communities. Sociologist Loic Waquant, for example, includes mass incarceration within the long line of “peculiar institutions” that have subordinated African Americans, including slavery, Jim Crow, and urban ghettos. And legal scholar Michelle Alexander has argued that the mass incarceration of African-Americans functions like a modern day Jim Crow caste system by permanently excluding a large percentage of the African-American community from mainstream social and economic realms. While recognizing the importance of this scholarship, Roberts explains that it overlooks incarcerated women. This oversight is unfortunate, as the population of black women incarcerated for drug offenses exploded by 828% from 1986 to 1991. Continue reading "Breaking The Silence: Prison, Child Welfare And The Systemic Oppression Of Black Women"
Oct 14, 2013 Camille NelsonEquality
I like the article Self-Defense and the Suspicion Heuristic; consistent with Jotwell’s tagline, I like it lots. The timing of this short review is apt. The Zimmerman verdict was recently rendered. It is still fresh in our minds, protests are taking place across the United States, President Obama has delivered a landmark speech on race in America, reflecting that, “Trayvon Martin could have been me . . . .” Self-Defense and the Suspicion Heuristic is an important work that lends insight into thought processes that could have led both to the killing of Travyon Martin and the verdict of acquittal.
This Iowa Law Review article, authored by a law professor (Richardson) and social psychologist (Goff), explores the subtle “mental processes [that] can conspire to produce racially discriminatory behaviors.” (P. 295.) In attempting to disabuse the reader of the assumption that Mr. Zimmerman must have been a bigot or a racist, meaning a conscious discriminator, Richardson and Goff elucidate predictable and pervasive unconscious racialized psychological processes that “warp the perceptions of even the most egalitarian of individuals.” (P. 295.) They call for “a new legal and theoretical framework that can account for these biases—one that does not rely upon the fiction of the objective decision-maker or the scapegoat of the consciously biased actor.” (P. 295.) Tapping the mind sciences to illuminate unconscious psychological processing that “can lead to systematic errors in judgment about criminality,” the authors introduce “the suspicion heuristic.” They employ this heuristic, which is defined as a “mental shortcut that often leads to systemic errors in determining who is and is not suspicious” (P. 297) to interrogate reasonableness determinations in self-defense doctrine. Continue reading "Help in Deconstructing the Zimmerman Acquittal: The Suspicion Heuristic"
Oct 11, 2013 Charlotte CraneTax Law
What are the criteria according to which tax base design should proceed? In Accepting the Limits of Tax Law and Economics, Alex Raskolnikov cogently reminds us not to rely too heavily on the approaches associated with tax law and economics, even if we find the approaches of law and economics in other contexts appealing.
Until early in the last century, there was little room for theory, economic or otherwise, in tax base design. The blunt practicalities of tax collection left little room for taxes that were not focused on highly visible and measurable activities. The development of economic theory, and its application to legal rules in the framework of “law and economics,” has shifted the focus from what can be collected to what should be collected (and from what can fairly be collected given the constraints of politics) to what can efficiently be collected, meaning in general with as little adverse effects on market activities as possible. In Accepting the Limits of Tax Law and Economics, Alex Raskolnikov outlines the reasons tax designers cannot rely solely—and probably not even primarily—on the methods of law and economics. Continue reading "The Limits of Even the Most Powerful Theories, or Why Tax Really Is Different"
Oct 9, 2013 Margareth EtienneCriminal Law
It has been nearly twenty years since crimes of sexual violence were prosecuted in international tribunals explicitly as crimes against humanity. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set the stage for how such crimes were to be understood as a matter of substantive criminal law and how they were to be prosecuted as a matter of procedural criminal law. These tribunals also left many unanswered questions to be determined by future courts in future cases. A recent book, Sexual Violence as an International Crime: Interdisciplinary Approaches, is a compilation of articles and essays by scholars, lawyers, professionals and others who have had a front-row view of these prosecutions. Its editors—Anne Marie de Brouwer, Charlotte Ku (who in the interest of full disclosure, is a colleague of mine), Renée Römkens and Larissa van den Herik—have undertaken the task of assembling a volume in the wake of “two decades of experience prosecuting crimes of sexual violence” in order to “assess the work that has been done with a view to understanding the next steps that need to need to be taken.” (P.8.) The volume’s contributors acknowledge some of the key milestones reached in the prosecution of sexual and gender-based violence, expose important failures, and forecast future challenges. (P. 8.)
The lessons learned from these early cases and subsequent cases address elemental definitions of crimes including the contextualization of consent in sexual assault against a backdrop of structural disempowerment or the inclusion of men and boys as victims of sexual violence; the use of conspiracy theories to prosecute not only the direct perpetrators of sexual violence, but also those further removed within the operational structure. They offer an assessment of practices developed in the investigation, reporting and analysis of data including the value of social scientific methods in meeting evidentiary burdens of fact and in understanding the impact of the harm on communities and individuals. The authors also explore the increasing sensitivities to victim-related concerns including evidentiary rules excluding evidence of past sexual conduct; privacy issues raised in the collection and documentation of medical and personal data; efforts to prevent the re-victimization of the victims by the criminal justice process itself. Continue reading "Lessons Learned from International Prosecutions of Sex Crimes"
Oct 8, 2013 James E. PfanderCourts Law
We know far too little about James Wilson, the Scottish-born and -educated lawyer who played a central role in framing the Constitution as a delegate from Pennsylvania and later served as Associate Justice of the Supreme Court. Wilson was hounded to an early grave in 1798, after financial reversals landed him in debtor’s prison. That ignominious end seems to have cast a long shadow, obscuring his earlier career as lawyer, judge, and statesman. Happily, however, William Ewald has embarked on an intellectual biography of Wilson that will doubtless do much to restore the reputation of this most nationalist of founding fathers.
One interesting chapter of that biography has just appeared in article form. It focuses, as the title suggests, on the work of the Pennsylvania Convention’s Committee of Detail. Wilson was one of five members of that Committee, named in July 1787 to prepare a draft Constitution that reflected the Convention’s deliberations to that point. Much of what we know about the Committee’s work comes from the text of Wilson’s own drafts of the Constitution. We can watch provisions evolve and take shape as the product of a deliberative process of which we have no other record. Continue reading "James Wilson, the Committee of Detail, and the Federal Judiciary"
Oct 7, 2013 Bill BrattonCorporate Law
Tom C.W. Lin’s The New Investor is well worth a read. It’s about algorithmic trading, high-frequency-trading, flash crashes, and cyber attacks, and how they happen to be, could be, should be, and shouldn’t be changing our thinking about investment and securities regulation. I picked the paper up from the top of the stack of papers in my office due to feelings of insecurity. Yes, I had read the financial press with more than usual attention in the wake of the flash crash and had done some homework on dark pools, but I still had the sense I was missing something that others had managed to assimilate. So I eagerly accepted this paper’s offer of a knowledgeable overview.
I am pleased to report that I was better informed than I had feared. At the same time, the paper taught me all sorts of stuff I was glad to learn. The lesson was a pleasure. The writing is excellent, the scope broad, the organization intelligent, and the tone measured. But what about the policy bottom line? A full and appropriate range of warnings emerges from the paper’s report of technical shortcomings. There’s also a succinct review of structural regulatory shortcomings. At the same time, Professor Lin likes this stuff more than he fears it. The “new investor” is a function of artificial intelligence, which in turn follows from mathematical inputs. The paper compares the new investor categorically to the rational actor investor of orthodox financial economics and the behaviorally challenged investor of recent academic fashion, and the new investor emerges from the comparison looking pretty good. Continue reading "Cyber Finance Considered"
