Monthly Archives: April 2014

Farewell, School House Rock (Understanding Legislative History through the Lens of the ACA)

The legislative history of the Patient Protection and Affordable Care Act (ACA) is dizzyingly complex and maddeningly opaque. Happily, a guide to this law’s history was published recently and undoubtedly will become an essential piece of understanding the puzzle of the ACA. Though John Cannan wrote the article to instruct law librarians in the modern methods of tracking increasingly intricate legislative history, anyone engaged in studying the implementation of the ACA and the ongoing challenges to that law will benefit from the meticulous detail this article provides.

Traditional sources of legislative history will thwart the casual researcher seeking to understand the provisions of the ACA. At one end of the spectrum, the United States Code Congressional and Administrative News (USCCAN), an ordinarily reliable source of legislative history, has no documentation for the ACA and one unrelated committee report for the ACA’s companion legislation, the Health Care Education and Reconciliation Act (HCERA). At the other end of the spectrum, THOMAS contains more legislative history than could possibly pertain to the subject matter of the ACA, yet it provides no guideposts for wading through the legion of amendments that appear to have applied to the ACA. The Justices called the legislative history impenetrable during the severability oral arguments in NFIB v. Sebelius. Cannan makes the impenetrable understandable by diligently tracking the genesis and progress of two House bills and three Senate bills that became the ACA so that we can understand how to find the history that exists between these extremes. Continue reading "Farewell, School House Rock (Understanding Legislative History through the Lens of the ACA)"

Oral History and Perceptions of Subjectivity

Robert Alan Hersey, Jennifer McCormack, & Gillian E. Newell, Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past, Ariz. Legal Stud. Discussion Paper 14-01 (2014), available at SSRN.

I strongly recommend this paper not only for its immediate subject—the struggles that indigenous peoples face in proving land claims due to colonial governments’ distrust of evidence on oral history—but also because it helped me understand the limitations of my own perspective.

Robert Alan Hershey, Jennifer McCormack, and Gillian E. Newell describe the disconnect between Western notions of cartography and spatial theory and those of indigenous peoples, particularly indigenous peoples located in North America, Australia, and New Zealand. They then explain that some of these groups, such as the Ngurrara in Australia have had success in getting their rights recognized by creating maps that incorporate oral history, thus adopting a hybrid form of evidence that is both documentary and respectful of indigenous ways of knowing such as through oral history. Continue reading "Oral History and Perceptions of Subjectivity"

Same-Sex Marriage in Windsor and the Indignities of Dignity

Noa Ben-Asher, Conferring Dignity: The Metamorphosis of the Legal Homosexual, 37 Harv. J.L. & Gender (forthcoming 2014), available at SSRN.

In United States v. Windsor, the Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) as unconstitutional. The decision renders married same-sex couples eligible for the same federal benefits (i.e., tax treatment and social security benefits) as their opposite-sex counterparts. In the midst of a largely celebratory reception of the decision, Noa Ben-Asher offers a much-needed critical analysis of Windsor’s bundle of rhetorical and doctrinal sticks. In Conferring Dignity: The Metamorphosis of the Legal Homosexual, Ben-Asher takes us through a genealogy of the “legal homosexual” in Supreme Court case law. As Ben-Asher notes, this genealogy begins with moral opprobrium and ends in Windsor’s exalted language about the dignity of state-sanctioned, same-sex couples. Recognizing dignity: Who can be against that, right? Ben-Asher demonstrates that in our post-realist world the story is more complicated.

The first part of Ben-Asher’s contribution is an astute rendering of the Supreme Court’s evolving doctrinal constructions of homosexual conduct and identity. Ben-Asher identifies four stages in what she terms the “metamorphosis of the legal homosexual.” In each stage, Ben-Asher reveals distinct moral assessments of the legal homosexual’s nature and conduct, as well as different understandings of the state’s role in the regulation of morals. Continue reading "Same-Sex Marriage in Windsor and the Indignities of Dignity"

Good Fences Make Better Data Brokers

Woodrow Hartzog, Chain Link Confidentiality, 46 Georgia L. Rev. 657 (2012) available at SSRN.

Since at least the early 2000s, privacy scholars have illuminated a fatal flaw at the core of many “notice and consent” privacy protections: firms that obtain data for one use may share or sell it to data brokers, who then sell it on to others, ad infinitum. If one can’t easily prevent or monitor the sale of data, what sense does it make to carefully bargain for limits on its use by the original collector? The Federal Trade Commission and state authorities are now struggling with how to address the runaway data dilemma in the new digital landscape.  As they do so, they should carefully consider the insights of Professor Woody Hartzog. His article, Chain Link Confidentiality, offers a sine qua non for the modernization of fair data practices: certain obligations should follow personal information downstream.

After 2013, it is impossible to ignore the concerns of privacy activists. The Snowden revelations portrayed untrammeled data collection by government. Jay Rockefeller’s Senate Commerce Committee portrayed an out-of-control data gathering industry (whose handiwork can often be appropriated by government). America’s patchwork of weak privacy laws are no match for the threats posed by this runaway data, which is used secretly to rank, rate, and evaluate persons, often to their detriment and often unfairly. Without a society-wide commitment to fair data practices, a dark era of digital discrimination is a real and present danger. Continue reading "Good Fences Make Better Data Brokers"

State Control of Black Mothers

Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. Rev. 1474 (2012).

Dorothy Roberts has long provided insightful analysis of the ways in which criminal justice policies police black families and the ways in which child welfare policies police the bodies of black women.1

In Prison, Foster Care, and the Systemic Punishment of Black Mothers (which was a part of an impressive UCLA symposium entitled Overpoliced and Underprotected: Women, Race and Criminalization), Roberts develops a detailed description of the “system intersectionality” between the punishing controlling systems of child welfare and the similarly racially discriminatory controlling systems that result in what is usually termed mass incarceration.2 Continue reading "State Control of Black Mothers"

Federalism and Mass Tort Litigation

Fair and global resolutions to mass tort claims are not easy to achieve. Aggregation of claims, either through a formal class action or perhaps through multi-district litigation (“MDL”) consolidation, has been a key feature of mass tort litigation for several decades. In an MDL, related cases filed in federal court may be consolidated before a single judge for coordinated pre-trial proceedings, including settlement. The benefits and limitations of aggregation generally, and the MDL device itself, have been the subject of numerous academic papers. American federalism places a stumbling block in the way of complete aggregation – the presence of related but non-removable claims pending in state court, which cannot be part of that consolidated federal action.

While many scholars have viewed non-removable claims as a limitation on the success of aggregation, surprisingly few have tackled the issue head on. Maria Glover provides a thoughtful and thorough investigation of this problem in Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Actions in Multi-District Litigation. Unlike scholars who have come before her, Glover does not dismiss the issue as an annoying yet intractable problem, although she does not purport to “solve” it. Rather, her article is a fresh and inventive take on this problem, in which she suggests that the presence of non-removable state actions might actually be beneficial to the resolution of mass tort claims. Continue reading "Federalism and Mass Tort Litigation"

Call for Papers: Legal Scholarship We Like, and Why It Matters

Legal Scholarship We Like,
and Why It Matters

University of Miami School of Law
November 7-8, 2014

JOTWELL, the Journal of Things We Like (Lots), is an online journal dedicated to celebrating and sharing the best scholarship relating to the law. To celebrate Jotwell’s 5th Birthday, we invite you to join us for conversations about what makes legal scholarship great and why it matters.

In the United States, the role of scholarship is under assault in contemporary conversations about law schools; meanwhile in many other countries legal scholars are routinely pressed to value their work according to metrics or with reference to fixed conceptions of the role of legal scholarship. We hope this conference will serve as an answer to those challenges, both in content and by example.

We invite pithy abstracts of proposed contributions, relating to one or more of the conference themes. Each of these themes provides an occasion for the discussion (and, as appropriate, defense) of the scholarly enterprise in the modern law school–not for taking the importance of scholarship for granted, but showing, with specificity, as we hope Jotwell itself does, what good work looks like and why it matters.

I. Improving the Craft: Writing Legal Scholarship

We invite discussion relating to the writing of legal scholarship.

1. What makes great legal scholarship? Contributions on this theme could either address the issue at a general level, or anchor their discussion by an analysis of a single exemplary work of legal scholarship. We are open to discussions of both content and craft.

2. Inevitably, not all books and articles will be “great”. What makes “good” legal scholarship? How do we achieve it?

II. Improving the Reach: Communicating and Sharing

Legal publishing is changing quickly, and the way that people both produce and consume legal scholarship seems likely to continue to evolve.

3. Who is (are) the audience(s) for legal scholarship?

4. How does legal scholarship find its audience(s)? Is there anything we as legal academics can or should do to help disseminate great and good scholarship? To what extent will the shift to online publication change how people edit, consume, and share scholarship, and how should we as authors and editors react?

III. Improving the World: Legal Scholarship and its Influence

Most broadly, we invite discussion of when and how legal scholarship matters.

5. What makes legal scholarship influential? Note that influence is not necessarily the same as “greatness”. Also, influence has many possible meanings, encompassing influence within or outside the academy.

6. Finally, we invite personal essays about influence: what scholarship, legal or otherwise, has been most influential for you as a legal scholar? What if anything can we as future authors learn from this?

Mechanics:

Jotwell publishes short reviews of recent scholarship relevant to the law, and we usually require brevity and a very contemporary focus. For this event, however, contributions may range over the past, the present, or the future, and proposed contributions can be as short as five pages, or as long as thirty.

We invite the submission of abstracts for proposed papers fitting one or more of the topics above. Your abstract should lay out your central idea, and state the anticipated length of the finished product.

Abstracts due by: May 20, 2014. Send your paper proposals (abstracts) via the JOTCONF 2014 EasyChair page at https://www.easychair.org/conferences/?conf=jotconf2014.

If you do not have an EasyChair account you will need to register first – just click at the “sign up for an account” link at the login page and fill in the form. The system will send you an e-mail with the instructions how to finish the registration.

Responses by: June 13, 2014

Accepted Papers due: Oct 6, 2014

Conference: Nov. 7-8, 2014
University of Miami School of Law
Coral Gables, FL

Symposium contributions will be published on a special page at Jotwell.com. Authors will retain copyright. In keeping with Jotwell’s relentlessly low-budget methods, this will be a self-funding event. Your contributions are welcome even if you cannot attend in person.

A Painful Shift from a New Paradigm to Regulatory Reality

Under what conditions do new scientific and technocratic paradigms drive profound policy change? Policymakers and bureaucrats are cognitively bound by, and emotionally attached to, the scientific and technocratic paradigms that guide their daily operations. Consequently, indications that existing policies and regulatory approaches are producing bad or unintended results tend to be ignored over long periods of time. Insofar as such signals are attended to, this is done within the logic of an existing paradigm, thereby resulting in incremental change. Fundamental – third order – policy changes entail a paradigmatic intellectual shift, which delineate an alternative problem definition, and a complementary set of policy tools. Students of policy associate such instances of third order change with Peter Hall’s study of the British Treasury and the Bank of England’s shift from Keynesian economics to monetarism in late 1970s. As shown in Hall’s study, this policy makeover was enabled by a coupling between Margaret Thatcher’s political will and the American-driven intellectual development of monetarism as an alternative to Keynesianism.

Still, Andrew Baker’s study shows that while a paradigmatic intellectual shift may be a necessary condition, as suggested by Hall, it may still be insufficient for fundamental policy change. Baker suggests that macro-prudential regulation encapsulates, intellectually, a paradigmatic shift in a similar vein to the rise of monetarism and the rejection of Keynesian economics. Pre-crisis financial regulation, as encapsulated in the Basel II standards, was based on the premise of market efficiency. Banks were assumed to have the capacity to assess and manage their capital and liquidity risks, and asset prices together with ratings by credit agencies were assumed to reflect assets’ real values and risks. Consequently, “Greater transparency, more disclosure, and more effective risk management by financial firms based on market prices became the cornerstones for the regulation of ‘efficient markets.” (P. 420). Macro-prudential regulation, by comparison, rejects the premise of efficient markets. Rather, it postulates that asset prices can be driven to extremes, whether upwards or downwards, due to pro-cyclicality (i.e. excessive levels of investment when prices are rising and radical contraction when prices are falling), herding behavior and complex interdependence between financial institutions and transactions. During 2008, this approach, which attracted limited support before the crisis, became the mainstream discourse of international and national financial regulators. By comparison, “Open advocates of rational expectations, new classical thinking, and an efficient markets perspective have been hard to find in financial regulatory networks, since late 2008.” (P. 424-25). Continue reading "A Painful Shift from a New Paradigm to Regulatory Reality"

Denigration as Forbidden Conduct and Required Judicial Rhetoric

Steven D. Smith, The Jurisprudence of Denigration, U.C. Davis L. Rev (forthcoming, 2014), available at SSRN.

Steven D. Smith has written another characteristically challenging paper. I fear that the paper, “The Jurisprudence of Denigration,” will be accepted without cavil by those who tend to disagree with decisions like United States v. Windsor or Lawrence v. Texas, and rejected without hesitation by those who champion those decisions. Either move would be unfortunate. This is a paper that says something important about the nature of modern constitutional and moral rhetoric surrounding hot-button social issues, and the uneasy position of judges and scholars as they attempt to find legally serviceable language with which to address social controversies in real time.

The paper’s argument has wide-ranging implications but is blissfully clear and simple. In Windsor, Justice Kennedy argued that section 3 of the Defense of Marriage Act was the product of “a bare congressional desire to harm a politically unpopular group”—that it came from a “purpose . . . to demean,” “injure,” and “disparage.” As Smith writes, “Justice Kennedy and the Court thereby in essence accused Congress—and, by implication, millions of Americans—of acting from pure malevolence.” This “extraordinary claim” forms part of a “discursive pattern” by judges and scholars that Smith calls “the discourse of denigration.” And it is wrong and dangerous. “Precisely contrary to its irenic and inclusivist intentions, by maintaining and contributing to that destructive discourse, the Supreme Court aggravates the conflict that is often described, with increasing accuracy, as the ‘culture wars.’”

At this point I can envision the supporters of Winsdor hastily yanking on the cord and seeking to get off the bus. But they should stick around, because Smith has some larger, interesting claims to make. Those claims do not require one to abandon support for Windsor or LGBT rights, but simply to ask how the Court gets there. Kennedy may have been arguing, Smith suggests, “that to disapprove of homosexual conduct is to declare or deem persons prone to such conduct to be in some sense lesser or inferior beings.” But that is a logical fallacy: “From the fact that a person is inclined to some behavior deemed immoral [by others], . . . it simply does not follow that the person is in any sense a lesser or inferior human being. And while those who disapprove of some behavior as immoral may believe that people who engage in the behavior are lesser human beings, they need not believe any such thing.” Even if supporters of DOMA and similar laws actually do regard gays and lesbians as “in some sense lesser human beings,” that still does not prove ineluctably that they are acting from a bare desire to harm those individuals. Continue reading "Denigration as Forbidden Conduct and Required Judicial Rhetoric"

Rethinking the Role of Agencies in Private Regulatory Enforcement

David Freeman Engstrom, Agencies as Litigation Gatekeepers, 123 Yale L. J. 616 (2013).

Over the past several decades, many scholars have weighed in on benefits and detriments of authorizing private parties to sue to enforce federal regulatory standards. They often take either of two opposing positions: Some argue that private enforcement is necessary to supplement underfunded and perhaps captured agency enforcement mechanisms; others contend that private enforcement undermines social welfare or even statutory goals by sacrificing officials’ prosecutorial discretion not to pursue cases that, while technically justified, would not further regulatory goals. Few scholars, however, have written about the trade-offs triggered by a choice between public and private enforcement.

In Agencies as Litigation Gatekeepers, David Engstrom views the issue as one of when and how agencies should control the use of private enforcement. He is not the first to write about vesting agencies with such gatekeeper functions. But, others who have written on the subject generally have done so within the context of a particular regulatory program or litigation regime. Agencies as Litigation Gatekeepers views the structure and control of private enforcement as a unique kind of regulatory problem that extends potentially to every regulatory program. Doing so allows the article to develop some theoretical insights into how private enforcement might be structured and how agencies might best further the use of private enforcement mechanisms. Continue reading "Rethinking the Role of Agencies in Private Regulatory Enforcement"