Monthly Archives: April 2017

Interauthority Relationships

Timothy Endicott, Comity among Authorities, 68 Current Legal Problems 1 (2015).

For too long the focus in philosophy of law has been the national legal system. As some have already observed, this ignores public international law. But it also ignores private international law, or (as Americans would call it) the conflict of laws. Private international law is less about creating laws and judgments that bind nations than it is about coordinating nations’ existing laws and judgments. Philosophers of law also tend to ignore similar coordination within a national legal order. Not much is said about federalism, subsidiarity, and administrative law.

The focus on the unitary national legal system extends to how philosophers of law use the concept of authority. As Joseph Raz has argued, an authority provides a service: those subject to the authority are better able to comply with their reasons for action by doing what the authority says than by considering the reasons directly. For example, a doctor will be an authority for me if I am better able to do the right thing medically by following the doctor’s orders than by acting on my own reasoning about medical matters. Simply because lawmakers are considered to be authorities does not mean they are. But because lawmakers claim authority, even if they may not have it, authority is considered essential to understanding the law. Because of the focus on the unitary national legal order, however, philosophers have concentrated on the relationship between a single authority and its subjects—how the authority mediates between its subjects and their reasons for action. Continue reading "Interauthority Relationships"

Cost Containment—Global Budget Caps

Nelson Sabatini, Joseph Antos, Howard Haft & Donna Kinzer, Maryland’s All-Payer Model—Achievements, Challenges, And Next Steps, Health Affairs Blog (Jan. 31, 2017).

While the Affordable Care Act has done much to improve access to care—20 million more Americans carry health care insurance as a result of ACA—the Act’s ability to contain health care spending is less clear. Accordingly, efforts to identify effective policies for limiting health care costs are critical.

Unfortunately, the experience with many cost-containment strategies has been disappointing. What seems promising in theory may not pan out in practice. That makes a recent review by Nelson Sabatini and colleagues especially worth reading. They highlight a model in Maryland that has shown very encouraging results so far. Continue reading "Cost Containment—Global Budget Caps"

Biological and Social Approaches to the LGBT Family

Michael Boucai, Is Assisted Reproduction an LGBT Right?, 2016 Wisc. L. Rev. 1065 (2017).

For decades, same-sex couples have made claims—in both politics and law—to parenthood. Many of these claims relate to the regulation of assisted reproductive technologies (ART), as same-sex couples pursue modes of family formation made possible by ART and seek legal recognition of the parental ties that grow out of their use of ART. These claims have only grown more potent in the wake of Obergefell v. Hodges, the 2015 Supreme Court decision granting same-sex couples access to marriage on both due process and equal protection grounds. The centrality of ART in contemporary claims to LGBT equality leads Michael Boucai to ask in a timely and fascinating new article, Is Assisted Procreation an LGBT Right?

In resisting the turn to ART as an LGBT political project, Boucai contrasts the primacy of biogenetic ties in organizing around ART with the role of nonbiological forms of kinship in the history and ethics of LGBT life. ART’s “appeal to American society’s pervasive biogeneticism, its deep-seated faith in the priority and superiority of biogenetic forms of relationship and identity,” Boucai asserts, runs against the LGBT community’s longstanding commitment to “a social and functionalist … conception of familial relationships.” Continue reading "Biological and Social Approaches to the LGBT Family"

The Staying Power of Injustice and the Prolonged History of the Trafficking of Indian Children in The Other Slavery

Andrés Reséndez, The Other Slavery: The Uncovered Story of Indian Enslavement in America (2016), available at Amazon.

The Other Slavery: The Uncovered Story of Indian Enslavement in America is a devastating encyclopedic account of slavery in the Spanish colonial New World. For me, the ultimate effect was a surprising combination of a renewed sense of the intractability of old problems like racism and slavery and an acute sense of having awoken to a new historical reality that I previously knew next to nothing about.

As a professor of federal Indian law, I begin my class each semester with a brief overview of early colonialism, including the Requerimiento, a document that Spanish explorers read to Indigenous peoples before attacking them. Drafted in 1510, the Requerimiento threatened the original inhabitants of the Spanish colonies with slavery and war if they did not accept Christianity and the primacy of both the Pope and the Spanish monarchs. Despite my knowledge of the widespread use of this document, I had no idea of the breadth of the system of enslavement that Indians in the Spanish New World, ranging from New Mexico, California, Utah, and Florida down to Chile, were subject to. Author and UC Davis historian Andres Reséndez posits remarkably that Indigenous peoples’ precipitous population declines from the end of the fifteenth century through the mid-sixteenth century were due more to “slavery, overwork, and famine” than to disease. (P. 17.) While shocking given the prevalence of the disease theory, this idea makes intuitive sense to me because I can see the popularity of the disease hypothesis standing alone possibly being fueled by its resonance with old but unfortunately not quite extirpated Western ideas of the supposedly divinely ordained superiority of Europeans and European-Americans compared to their Indigenous counterparts. Given slavery’s overtly oppressive character, the idea that Indigenous populations were decimated through slavery (in addition to disease) is undoubtedly more difficult for European-Americans to reckon with. In short, the book pierced me and changed me, and I will never see American history or Latin American history the same way again. Continue reading "The Staying Power of Injustice and the Prolonged History of the Trafficking of Indian Children in The Other Slavery"

A Well-Pleaded Argument

Lonny Hoffman, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016).

I should start by putting my own bias on the table: I think the changes to pleading standards brought about by Twombly and (especially) Iqbal are a really bad idea. Procedural systems that turn on early pleading of factual detail have failed for centuries to provide either accurate or efficient results. Rather, gatekeeping based on pleadings encourages and rewards pleading disputes, leads to wasteful motion practice about degrees of particularity, and, worse, the dismissal of meritorious claims under conditions of information asymmetry. Even if I did not hold these views, however, I would find much to admire in Lonny Hoffman’s elegantly structured response to William H.J. Hubbard’s article, A Fresh Look at Plausibility Pleading, an article that doubts that “plausibility” analysis has much impact and suggests that plaintiffs with weak cases are better off losing quickly.

Hubbard’s piece is a fascinating thought experiment: what if there were no pleading standards, so that decisions about what cases to bring and how to plead them were entirely in the hands of plaintiff-side lawyers? It is generally agreed that lawyers play a gatekeeping role in litigation. In fact, lawyer gatekeeping itself represents only a tip of the no-lawsuit iceberg, since studies consistently show that most people with a potential justiciable claim do not even consult an attorney. (American Bar Association, Legal Needs and Civil Justice: A Survey of Americans, Major Findings of the Comprehensive Legal Needs Study (1994); Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (1999).) Nevertheless, Hubbard’s article contributed to the discussion by updating and attempting to quantify this effect. Continue reading "A Well-Pleaded Argument"

Make America Troll Again

There is a theory that Donald Trump does not exist, and that the fictional character of “Donald Trump” was invented by Internet trolls in 2010 to make fun of American politics. At first “Trump” himself was the joke: a grotesque egomaniac with orange skin, a debilitating fear of stairs, and a tenuous grasp on reality. He was a rage face in human form. But then his creators realized that there was something even funnier than “Trump’s” vein-popping, bile-specked tirades against bad hombres and nasty women: the panicked and outraged denunciations he inspired from self-serious defenders of the status quo. “Trump’s” election was the greatest triumph of trolling in human history. It has reduced politics, news, and culture to a non-stop, deplorably epic reaction video.

There is no entry for “Donald Trump” in the index of Whitney Phillips’s 2015 book, This Is Why We Can’t Have Nice Things: Mapping the Relationship between Online Trolling and Mainstream Culture. But this playful, perceptive, and unsettling monograph is an outstanding guidebook to the post-Trump hellscape online trolling has made for us. Or perhaps I should say to the hellscape we have made for ourselves, because Phillips’s thesis is that trolling is inherently bound up with the audiences and antagonists who can’t stop feeding the trolls. Much like Trump, trolls “are born of and fueled by the mainstream world.” (Pp. 168-69.) Continue reading "Make America Troll Again"

“If you count it, it will count:” From Directives to Reports Refined

Oren Perez, The Green Economy Paradox: A Critical Inquiry into Sustainability Indexes, 17 Minn. J. L. Sci. & Tech 153 (2016).

Students of organizations know that numbers can drive action and uncounted outcomes can get lost despite their mission centrality. The strategy of “Management by Objectives” was praised for providing a focus, preventing drift, and criticized for ignoring that which is difficult to count, misdirecting energies. Those of us in law schools know how rankings can help align us to serve students, but also can involve us in wasteful (or just less than optimum) activities to improve our rankings. More importantly, the rankings may deter our pursuing difficult but crucial pedagogies, whose importance may be unappreciated by students and the rankings.

Oren Perez’s The Green Economy Paradox is critical in the best sense. It digs deep into the numeracy problem, recognizing both the good and the bad. It is also comprehensive, in examining a broad range of indexes that might foster sustainable activities, by counting what corporations do in multiple ways. Rather than directing goals or processes, rankings “simply” count and hope that comparisons with others, and with previous years’ results, will move corporations toward sustainable activities. The numbers of rankings are increasing. This week, I learned that my university is joining the “Sustainability Tracking Rating System of the American Association for Sustainability in Higher Education.” One can hope that this Association ponders Perez’s fine article. Continue reading "“If you count it, it will count:” From Directives to Reports Refined"

Choosing How We Make Choices

Cass R. Sustein, The Ethics of Influence: Government in the Age of Behavioral Science (Cambridge Univ. Press, 2016).

Cass Sunstein’s thoughts about the ethics of regulation are of more than theoretical interest. He served as Administrator of the White House Office of Information and Regulatory Affairs and has successfully championed the use of behavioral sciences in policy design. “Nudge,” which he coauthored with Richard Thaler, describes the use of choice architecture, or the background conditions for people’s choices, to improve outcomes. Sometimes outcomes are improved from the standpoint of others, as in environmentally-friendly defaults. Sometimes nudges are intended to improve outcomes for the very people (apparently) making the choices.

The Ethics of Influence takes on the objections raised against nudging. Nudging requires that someone decide the direction in which people should be nudged. Nudging can be opaque or even manipulative. Nudging can be a really creepy way for elites within the state to control private individuals, under the radar. The book takes on these potential problems directly and systematically. In part, it parses out benign from insidious nudging. Sunstein simply rejects most of the worst examples and allows that there are domains of private decision-making where nudging is simply inappropriate altogether. He distinguishes nudges that exploit cognitive defects in order to direct people toward behaviors that they would reject from nudges that prompt deliberation and choice. Continue reading "Choosing How We Make Choices"

What Will the Federal Government’s Resistance to President Trump Look Like?

How should one respond to injustice, illegitimacy, or broader threats posed by a democratic governmental regime? Although readers may lump these items together, the commas and “or” matter here, for they are not all the same and the proper response to each may differ. One common answer to some or all of them is civil disobedience. Another, rendered more problematic by the democratic nature of the regime and perhaps by the relative lack of courage of the professional-managerial class, is open rebellion. A third possible response, Jessica Bulman-Pozen and David E. Pozen argued in a valuable, important, and still under-examined 2015 article, is uncivil obedience: a conscientious, communicative, reformist act of strict “conformity with . . . positive law,” “in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.”

One might apply some of the same questions to this very jot. The general custom at Jotwell is to talk about recent “things” we “like lots,” and usually only about one article one at a time. The rule extends to articles published in the past two years, but most jots focus on recent or forthcoming articles. Given my own perverse tendencies, many of my past jots have more or less followed Jotwell’s “rules,” while pushing their limits. (And they have talked about doing so, which may violate another Jotwell “rule,” one that applies to legal scholarship more generally: talk about the article or topic itself, not the process or motives behind it. A law review article that began “This Article is intended to advance the current causes of the Democratic Party,” or “This Article is meant to demonstrate my worthiness for promotion” would be refreshingly candid, and might suggest some interesting things about legal scholarship, but this sort of thing is just not done. An article that got even more “meta” about the nature or role of the article, in order to poke at legal scholarship more generally, would be just as suspect, and the letters complaining about it would invariably begin, “Dear Prof. Schlag.”) Here I talk about three “articles” falling within the time limit. But two are scholarly blog posts, and the third involves a bank-shot, because behind it lies that 2015 article by Bulman-Pozen and Pozen, now verging on being too “old”for Jotwell. And all three articles raise the question whether this jot belongs in the constitutional law section or under legal theory or administrative law. Continue reading "What Will the Federal Government’s Resistance to President Trump Look Like?"

Reviving and Refining a Pragmatic Approach to Finality

William Funk, Final Agency Action after Hawkes, 11 N.Y.U. J.L. & Liberty (forthcoming 2017), available at SSRN.

Whenever I hear the phrase “force of law” in administrative law, I am inclined to reach for my wallet. Agency statutory interpretations with the “force of law” net Chevron deference; those lacking such force are stuck with Skidmore respect. Legislative rules have the “force of law,” but interpretive rules and general statements of policy (a/k/a guidance documents) do not. And then there is the second prong of the Bennett test for the finality of agency action, which checks whether an action has determined legal rights or obligations or otherwise has legal consequences. In other words, this prong checks whether the agency action has the “force of law.” It is not a coincidence that each of these corners of administrative law is something of a mess. The concept of “force of law” limits application of Chevron, requirements for notice and comment, and the availability of judicial review. But, often enough, courts encounter situations in which this approach seems under-inclusive. For instance, they confront agency interpretive rules that have such large practical impacts that they seem like they should be subject to judicial review—even though, technically lacking the “force of law,” they arguably should be regarded as non-final under Bennett. To accommodate such cases, courts sometimes stretch and tear the “force of law” concept, leaving doctrine confused and confusing.

Fortunately for us, Professor Bill Funk has written a concise and excellent essay, Final Agency Action after Hawkes, that offers a great deal of insight on how to clean up one of these messes. His jumping off point is the Supreme Court’s recent decision in United States Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016), which held that “jurisdictional determinations” (JDs) issued by the United States Army Corps of Engineers stating whether land contains “waters of the United States” constitute final agency actions subject to review under the APA. This opinion strongly highlights but does not resolve the tension between formalism and pragmatism that has plagued the doctrine of finality. Professor Funk’s essay diagnoses this tension, carefully traces its roots, and offers several thoughtful suggestions for resolving it. Continue reading "Reviving and Refining a Pragmatic Approach to Finality"