Monthly Archives: September 2016

The Case for Integrating Health Care and Social Services

Elizabeth H. Bradley & Lauren A. Taylor, The American Health Care Paradox: Why Spending More is Getting Us Less (2013).

Although the U.S. spends far more per person on medical care than any other nation, the results have been less than impressive. Relative to other developed nations, the U.S. consistently performs worse on a wide range of health measures, including infant mortality, premature deaths, life expectancy, and prevalence of heart disease, diabetes, and other chronic illnesses. Many health care experts have pointed to inefficiencies in our health care system as the cause for this paradox. Bradley and Taylor identify another culprit — too little attention to the social, environmental, and behavioral factors that impact health.

The book begins with a summary of the authors’ previous research comparing spending on health care and social services among OECD countries. This research found that when spending on health care is combined with spending on social services, the U.S only ranks in the middle of OECD countries. More importantly, the U.S. is an outlier when comparing the ratio of a nation’s social to health spending, with the U.S. allocating a far greater share of its gross domestic product to health care than to social services. This suggests that the U.S. is shortchanging the social services that help people live healthier lives, including public health, housing, education, community safety, and income support. The authors’ conclusion finds support in their recently published study comparing state spending, Variation in Heath Outcomes: The Role of Spending on Social Services, Public Health, and Health Care, 2000-09, 35 Health Affairs 760 (May 2016), which found that states with a higher ratio of social to health spending had better health outcomes. Chapter 3 of the book brings the data to life by profiling three individuals who incurred significant (and expensive) health problems when their social and behavioral health needs went unmet. Continue reading "The Case for Integrating Health Care and Social Services"

Inconsistency, Marriage Equality, and Legal Change by Stealth

Cynthia Godsoe, Adopting the Gay Family, 90 Tul. L. Rev. 311 (2015).

Obergefell v. Hodges and the cases that preceded it present a perplexing paradox. On the one hand, opponents of marriage equality vigorously argued that marriage should be limited to opposite-sex couples in the interest of children, as traditional marital families offered the optimal setting for childrearing. On the other hand, most of the opponents’ home states placed foster children with LGBTQ foster parents and allowed LGBTQ individuals to adopt children. On the surface, these conflicting impulses might simply have resulted from the confusion of multiple actors and advocates at different levels of government. In the insightful hands of Cynthia Godsoe, however, these contradictions disrupt traditional narratives of marriage equality and legal reform, demonstrate the power of quiet intersectionalism and coalitions, and illustrate how diverse family structures can drive social change.

In Adopting the Gay Family, Godsoe delves into the disparate treatment of gay parenthood and gay marriage to show how adoption became a “stealth path” to marriage equality. As she explains, from the beginning, the push for gay adoption relied on a coalition of vulnerable groups. In the 1970s, unable to find homes for teenagers “with homosexual tendencies,” a few jurisdictions turned to gay and lesbian adoptive parents to take in children that the rest of society rejected. Similarly, in the 1980s, adoption agencies confronting the challenges of placing HIV-positive babies affirmatively sought LGBTQ adoptive and foster parents. Continue reading "Inconsistency, Marriage Equality, and Legal Change by Stealth"

Taking the Classroom Beyond the Building’s Walls

John Borrows, Outsider Education: Indigenous Law and Land-Based Learning, 32 Windsor Yearbook on Access to Justice (forthcoming 2016).

John Borrows is a lead actor in the cast that makes it worth being part of the play of life. He’s always thoughtful and interesting; his scholarship thick with love. And I love reading his work.

In Outsider Education he appears as himself – teasing the reader with an introductory paragraph that leaves you wondering if he’s going to make an argument for old school legal education by apprenticeship, then turning the whole thing on its head. It’s not an argument for white men training white men in book-heavy chambers over sherry; it’s a reminder that Indigenous legal education in North America prior to European arrival kicks it even more old school. Continue reading "Taking the Classroom Beyond the Building’s Walls"

Noticing, and Commenting on, Settlements

Courtney R. McVean & Justin R. Pidot, Environmental Settlements and Administrative Law, 39 Harv. Envtl. L. Rev. 191 (2015).

As a wet-behind-the-ears lawyer in the U.S. Justice Department’s Environmental Enforcement Section, I tried two cases to judgment in my first three years of practice. During fifteen years at the DOJ thereafter, almost every case I touched – including some during a brief stint as an appellate lawyer – settled. So this succinctly-titled article immediately caught my eye.

In Environmental Settlements and Administrative Law, Courtney McVean and Justin Pidot focus not on enforcement litigation but on how the federal government settles cases in which agencies are sued for allegedly violating environmental statutes. McVean (a 2014 graduate of the University of Denver Sturm College of Law) and Pidot (a former DOJ attorney who was then an Assistant Professor at Denver) consider the persistent criticism that the Executive Branch’s settlement practices make policy in ways that violate administrative law norms. Their careful analysis concludes that most environmental settlements are consistent with the procedural constraints of administrative law and that existing judicial review mechanisms are adequate to correct the occasional settlements that overreach. Continue reading "Noticing, and Commenting on, Settlements"

New App City

Nestor M. Davidson & John J. Infranca, The Sharing Economy as an Urban Phenomenon, 34 Yale L. & Pol’y Rev. 215 (2016).

It may seem odd to put this article in the category of “Cyberlaw,” since it is so thoroughly about the embodied nature of new business models usually attributed to the distributed, placeless internet. But that’s precisely the point: the internet has a materiality that is vital to its functioning, and so do specific parts of it. Regulation, too, must contend with the physical basis of online activities. Julie Cohen has often written about the situatedness of the digital self and its construction within a field of other people, institutions, and activities; Davidson and Infranca explore that situatedness by explaining why local government law is an important matter for internet theorists.

Davidson and Infranca’s article thus puts an important emphasis on the materiality of internet-coordinated activities, even if my take is ultimately more pessimistic than that of the authors. They begin by noting that

[u]nlike for earlier generations of disruptive technology, the regulatory response to these new entrants has primarily been at the municipal level. Where AT&T, Microsoft, Google, Amazon and other earlier waves of technological innovation primarily faced federal (and international) regulatory scrutiny, sharing enterprises are being shaped by zoning codes, hotel licensing regimes, taxi medallion requirements, insurance mandates, and similar distinctly local legal issues. Continue reading "New App City"

Can We Improve on the Ordeal of American Criminal Justice?

Unfair begins with a reminder that medieval methods of factfinding now mocked—“fishing a ring out of a boiling cauldron, carrying an iron straight from the fire, or being plunged into a vat of water”—were employed in their era because they were understood to be cutting-edge analytical techniques. The point, which Adam Benforado drives home with startling, embarrassing force, is that our criminal justice system is in its own dark age, relying on techniques known to be inaccurate and to lead to erroneous results.

Some critiques are familiar, such as that interrogation using the Reid Technique can lead to false confessions, that there are many incompetent defense lawyers, that police and prosecutors sometimes suppress exculpatory evidence. But their unrelenting expression, from the predictable weaknesses of criminal investigation to the established disutility of certain forms of imprisonment, leaves the reputation of the system in tatters. Unfair ends with reasonable and creative, albeit politically improbable, suggestions for reform. Continue reading "Can We Improve on the Ordeal of American Criminal Justice?"

The Vanishing Poor

It’s certainly not news that, in recent years, the Supreme Court majority has been unenthusiastic about class actions. Reinterpretations of procedural rules and standing requirements make class certification more difficult and efforts at certification more expensive. Ever-broadening interpretations of the Federal Arbitration Act also move claims out of courts and prohibit aggregation of claims in arbitration. Procedure scholars have lamented these decisions for years, as the gradual accretion of unfortunate decisions continues.

I love this essay by Myriam Gilles because it changes my focus from processes to people and shines a light on the groups whose claims disappear in the absence of class action litigation. Conceptually, I’ve talked about “negative value claims” or perhaps “consumers” and “employees,” but unconsciously saw the issue through the lens of my own class-member settlements in cases involving unauthorized foreign transaction fees and excessive e-Book prices. I failed to think through the many ways in which those SCOTUS decisions have a systemic and devastating impact on the poor and powerless. Continue reading "The Vanishing Poor"

See. Spot. Catch. Frisbee. (… or Behold the Simple Elegance of Bank Capital, Upside-Down)

Heidi Mandanis Schooner, Top-Down Bank Capital Regulation, 55 Washburn L.J. 327 (2016).

In the words of one younger and wiser colleague, “prescriptions are empty calories for law review editors.”1 Many fabulous articles uncover new histories, new facts, new frames … only to fizzle around the obligatory Part V, with its half-hearted defense of a model law or regulatory gimmick, that orphan child born of perfunctory comments in faculty workshops.

The latest article by Heidi Mandanis Schooner, based on her endowed lecture at Washburn Law School, is a rare counterexample—a stunningly simple reform idea that would literally upend the paradigm of bank capital adequacy, dispensing with some of today’s most urgent and intractable financial regulatory debates. The Washburn Law Journal symposium issue (which includes insightful commentary on Schooner’s lecture) and her spinoff testimony before the Senate Banking Committee are rich food for legal, economic, and policy thought—but are not very well-packaged, and could easily get lost in the buzz and dazzle of the fast-growing scholarly field. Continue reading "See. Spot. Catch. Frisbee. (… or Behold the Simple Elegance of Bank Capital, Upside-Down)"

A “Follow the Money” Approach to Separation of Powers

Michael Greve and Christopher C. DeMuth, Sr., Agency Finance in The Age of Executive Government, 16-25 George Mason U. L. & Econ. Research Paper Series (2016), available at SSRN.

This year has featured no shortage of excellent doctrinal pieces in constitutional law—so many that I couldn’t choose among them. This article is different: more political science than law, although it does focus on separation of powers. Many Jotwell readers may not have read it. That’s unfortunate. It deserves follow-up work by constitutional law scholars.

Agency Finance in The Age of Executive Government, by Michael Greve and Christopher DeMuth, opens up a wide agenda for constitutional scholarship premised less on doctrinal issues, and more on a series of interlacing fiscal developments that have shifted power to the executive branch. The burgeoning administrative state, the continuing shift towards executive governance, and the lack of political accountability of administrative agencies have long been academic legal literature fodder. Most of these articles explore the doctrinal and policy nuances of the dividing lines between the political branches. The courts, meanwhile, have occasionally cabined the executive with an institutionally appropriate focus on fact-specific and precedent-based analysis. But both the academy and the judiciary are fundamentally inadequate to the task of cabining the executive branch. Neither can substitute for congressional control over and channeling of executive action, the main control built into the constitutional scheme of separated federal powers. Congressional retreat has facilitated executive creep. Continue reading "A “Follow the Money” Approach to Separation of Powers"

Circuit Courts Do Strange Things with Chevron

Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 115 Mich. L. Rev. (forthcoming 2017), available at SSRN.

Kent Barnett and Chris Walker begin this fascinating article by describing the Chevron doctrine and its history. In its landmark 1984 opinion in Chevron v. NRDC, the Supreme Court announced a new, seemingly more deferential doctrine that it instructed lower courts to apply when they review agency interpretations of the statutes they administer. The Chevron opinion is one of the most cited opinions in history. It has been cited in “nearly 15,000 judicial decisions and in over 17,000 law review articles and other secondary sources.” (P. 2.)

Barnett and Walker agree with most scholars that the Supreme Court’s “choice to apply Chevron deference, as opposed to a less-deferential doctrine or no deference at all, does not seem to affect the outcome of the case.” (P. 4.) They note that the Supreme Court did not even mention Chevron in three-quarters of the cases in which it reviewed agency statutory interpretations during the twenty-two-year period immediately after it issued its opinion in Chevron. They then report the findings of their study—the largest empirical study of circuit court applications of Chevron ever undertaken. As they characterize the results of their study, what they call Chevron Regular seems quite different from Chevron Supreme. Continue reading "Circuit Courts Do Strange Things with Chevron"