Monthly Archives: November 2017

Chevron’s Real Impact

Kent Barnett and Christopher Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017).

Empirical studies are often regarded as having less cachet than theory, and the circuit courts certainly have less cachet than the Supreme Court, so an empirical study of the circuit courts might be expected to rank somewhat low in the academic pecking order. But this article belongs at the top. A survey and analysis of all the federal Court of Appeals decisions from 2003 to 2013 that refer to the Chevron doctrine – some 2,272 of them – it reveals the actual operation and significance of this most famous of modern administrative law decisions. The Supreme Court invokes Chevron fairly regularly, of course, but often for the purpose of modifying it. In any case, Supreme Court decisions tend to be so politically charged that they frequently seem sui generis, a characteristic that provided the Court itself, in King v. Burwell, with still one more basis for modifying Chevron doctrine. It is in the circuit courts that the quotidian work of administrative law is carried out, and that is the pudding where the proof of Chevron‘s real impact can be found.

The most basic conclusion that Professors Barnett and Walker reach is that Chevron makes a difference. Contrary to prior empirical studies of Chevron‘s impact in the Supreme Court (“Chevron Supreme,” as the authors call it, since wordplay with the decision’s name is difficult to resist), they find that the win rate for the agencies in a circuit court (“Chevron Regular”) is substantially higher when the court invokes the Chevron doctrine. At 77%, it is fully 20% higher than the win rate when the court invokes Skidmore. To be sure, this is hardly a surprising conclusion, and thus lacks the counter-intuitive allure that some of the best empirical studies offer. But it is a conclusion reached only after a massive amount of careful effort and it represents an important contribution to our knowledge about Chevron’s real impact. Continue reading "Chevron’s Real Impact"

Rules for Digital Radicals

In 1971, activist and community organizer Saul Alinsky summarized lessons from a lifetime of organizing in his book, Rules for Radicals: A Pragmatic Primer for Realistic Radicals. Published in what would be the twilight of his life, Rules for Radicals was in many ways a tactical field guide for those seeking to instigate widespread social change. It still influences social movements on both the left and right. And yet, today’s wired world is much different—and more dynamic—than Alinsky’s pre-internet society, which relied largely on centralized forms of mass communication.

Now, both activists and governments operate under a new set of diffuse structures and communication mediums. Twitter, Facebook, and the like alter the terms of engagement for public protest and participatory democracy. And Zeynep Tufekci’s new book, Twitter and Tear Gas: The Power and Fragility of Networked Protest, helps us understand precisely how networked communications can amplify social movements, at the same time that it provides important notes of caution. In this way, while written as an accessible scholarly account rather than an operation manual, Tufekci’s book provides rules—or at least guideposts—for digital radicals. Continue reading "Rules for Digital Radicals"

Precedent, Preclusion, and Participation

Alan M. Trammell, Precedent and Preclusion, Notre Dame L. Rev. (forthcoming 2018).

Preclusion and precedent restrict the permissible range of actions in future litigation. Preclusion bars parties from relitigating claims or issues that have already been adjudicated in a prior action in which the litigant was present. Precedent binds all courts and parties within a relevant jurisdiction to a particular rule or holding if the decision emerged from a court with binding authority. Alan Trammell’s new article undertakes a fresh examination of the tension between these two doctrines: why are future parties bound by precedent and stare decisis regardless of their presence in a prior action, when preclusion doctrines demand prior party presence and jealously guard an absent party’s right to a day in court?

Trammell’s take is that preclusion and precedent embody two different theories of due process. Preclusion protects a “participation-oriented theory,” in which courts are focused on guarding a party’s due process right to a “day in court.” Precedent protects an “outcome-oriented theory,” in which due process bolsters decisional accuracy and protects litigants’ rights to a stable and predictable legal environment. Continue reading "Precedent, Preclusion, and Participation"

Limiting the Limitless

Ifeoma Ajunwa, Kate Crawford & Jason Schultz, Limitless Worker Surveillance, 105 Cal. L. Rev. 735 (2016).

The hottest new subject area for legal academics is privacy law. The field is still in its infancy, which means that many of the foundational issues of categorization and taxonomy remain to be worked out. Even defining privacy is thorny, as the label is applied liberally to all sorts of invasions, intrusions, disclosures, and interests, with questions about how to delineate and frame privacy concerns arising in several sub-categories. In the labor and employment context, the Restatement of Employment Law has divided privacy interests into three categories: interests in the privacy of persons and locations (including electronic ones); interests in the privacy of personal information; and interests in the nondisclosure of information that was disclosed to the employer confidentially.1 Within these broad contours, a myriad of different types of violations sit uncomfortably next to one another, each raising their own specific issues.

In Limitless Worker Surveillance, Ifeoma Ajunwa, Kate Crawford, and Jason Schultz take on one specific type of privacy invasion: workplace surveillance. Because of employers’ ownership and control of the workplace, courts have generally interpreted the common law to allow employer surveillance of working areas. Moreover, employers can expand their observation into private areas when employees give their consent to the intrusion. Management has generally run into trouble only when it surreptitiously and secretly records employees in private areas, such as bathrooms, medical examination offices, and employee homes. But routinized, disclosed surveillance is commonplace and seen as part of the job. Ajunwa, Crawford, and Schultz, however, want to disrupt this equilibrium. They argue that freedom from surveillance should be a non-waivable right, and they propose three different federal statutes, varying in scope, to enforce variations of this right against employers. Continue reading "Limiting the Limitless"

Trusts and Estates Law and the Redistribution of Wealth

Felix B. Chang, Asymmetries in the Generation and Transmission of Wealth, 78 Ohio St. L. J. (forthcoming 2018).

Data show that the very rich hold an ever-increasing share of global wealth while that held by the rest diminishes proportionately. And the United States stands out among developed nations for its particularly wide wealth disparities between the rich and the poor. Compared with many nations the rich in the U.S. are generally richer while many of the rest struggle to get by. This severe wealth inequality harms productivity and the broader economy and even threatens democracy and social stability.

Solutions focused on donative transfers of wealth by concerned legal academics often prescribe a tax and transfer system in the form of a robust gift and estate tax regime. But political realities continue to intervene, weakening the federal transfer taxes. Given the way current political winds blow, outright repeal of these taxes seems more likely than their rejuvenation. Continue reading "Trusts and Estates Law and the Redistribution of Wealth"

Can Transferable Development Rights (TDRs) Be Taken?

Christopher Serkin, Penn Central Take Two, 92 Notre Dame L. Rev. 913 (2016).

Transferable development rights (TDRs) are a land-use planning tool that enables regulators to restrict the development of one parcel of property more densely than would otherwise be permitted by applicable land use regulations, while also giving the owners of the restricted property the right to “sell” their property’s development potential to owners of less-restricted land. Ever since the Supreme Court decided Penn Central Transportation v. New York City,1 a number of legal issues about TDRs have remained unanswered.

In his recent engaging essay, Penn Central Take Two, Christopher Serkin tackles the most important of these issues: Whether TDRs are themselves protected by the Fifth Amendment’s Takings Clause. Continue reading "Can Transferable Development Rights (TDRs) Be Taken?"

Cybersecurity and Tax Information: A Vicious Cycle?

Michael Hatfield, Cybersecurity and Tax Reform, 93 Ind. L.J. (forthcoming Spring 2018) available at SSRN.

The international tax arena is awash with calls for tax transparency, and a variety of reforms are underway at the national, regional and global level to bring such transparency to fruition. See, e.g., Joshua Blank’s recent article The Timing of Tax Transparency, reviewed by Omri Marian earlier this year. Of course, with great caches of information comes great potential for security breaches of all types. Michael Hatfield, in his forthcoming article, Cybersecurity and Tax Reform, draws attention to the immensely important cybersecurity risks and challenges of a tax system founded on government collection and use of significant quantities of information. Quoting a former FBI Assistant Director, Hatfield describes IRS taxpayer information as “the gold standard” for being a “treasure trove of information” from the perspective of cyber criminals—large quantities of very valuable data housed in one agency. Is the IRS ready? Maybe not.

Hatfield’s solution to these cyber risks (given the operational demands of running a tax system and the constraints faced by the IRS) is substantive law reform and not merely more security. To be clear, security is a great idea, but at some point, reality must step in and when it does, Hatfield argues that it points to a remedy grounded in tax design and not just cybersecurity. His bold proposal—to have the tax system collect less data—relies on the marriage of substantive law changes and a rethinking of the sources of data security. Continue reading "Cybersecurity and Tax Information: A Vicious Cycle?"

A Provocative Journey through the Arcades of Legal History

Christopher Tomlins, Historicism and Materiality in Legal Theory, in Law in Theory and History: New Essays on a Neglected Dialogue (Maksymilian Del Mar & Michael Lobban eds., 2016).

Christopher Tomlins’ fascinating essay, Historicism and Materiality in Legal Theory, reconsiders the purpose of legal history and its utility for legal theory. For the last three decades, Robert W. Gordon’s landmark article, Critical Legal Histories, has served as the shining lighthouse by which the discipline navigated the murky waters between fact and theory, description and normativity.1 Departing from the evolutionary functionalism of law and society and law and economics scholarship, Gordon extolled the virtues of a critical historicism. In showing the indeterminate character of law’s past, this historicism destabilizes its present. As Tomlins sees it, critical historicism offers a post-structuralist interpretation of law, marked by contingency, complexity, and contradiction. The project of locating law in its socio-temporal context, he argues, generates an almost infinite set of relationships for examination. If critical historicism contends that the relationship between law and society is underdetermined, then Tomlins yearns for bolder causal explanations about legal and social change. Building on several prior pieces, Tomlins’ essay calls for an alternative paradigm to historicism, what he terms “materiality.” (P. 59.)

The essay begins by arguing that historicism has two problems. First, there exists a problem of intelligibility. If historical meaning takes shape only in its context, how can an observer—allegedly objective but also situated in time and place—access this meaning? Second, drawing on the work of legal philosopher Pierre Schlag, Tomlins elucidates the problem of differentiation.2 This is no smaller than the problem of how to distinguish what authoritative texts, corps of experts, institutions, and ritualized practices constitute law. If law and society are mutually constitutive, how do we differentiate between them? Tomlins suggests that the project of legal history should be to examine the process of legal differentiation itself. The essay discusses historical works that illustrate this methodology. Cornelia Visman’s study of state records, for example, explores the process by which administrative technologies produce law. Continue reading "A Provocative Journey through the Arcades of Legal History"

Can Certification Marks Promote Health Related Goals?

Margaret Chon and Maria Therese Fujiye, Leveraging Certification Marks for Public Health, in The New Intellectual Property of Health 257 (Alberto Alemanno and Enrico Bonadio eds, 2016), available at SSRN.

In the past months, there have been several interesting new books published on international and comparative intellectual property (IP). One of the books that has interested me the most is The New Intellectual Property of Health (Alberto Alemanno and Enrico Bonadio eds, 2016). This book tackles a series of important topics which relate to a variety of intersections between IP and public health. Its various chapters include topics related to plain packaging, investor-state dispute provisions, and the controversial notion of IP as investment. As an author of one of the chapters in the book, I am not providing a review of the book itself, but I would like to commend your attention to the chapter written by Margaret Chon and Maria Therese Fujiye, Leveraging Certification Marks for Public Health. In this chapter, the authors focus on the possibility and the capacity of certification marks (marks that certify that products are made or embody a certain standard) to achieve health-related objectives by promoting healthy products. In particular, the authors analyse the role that certification marks play as carrier of certified information about the products and consider whether this information could be leveraged for health-related goals, by leading consumers to purchase specific products that could be considered “healthier” than others available in the market.

Leveraging Certification Marks for Public Health provides crucial and important guidance to scholars, who are engaged in the exercise of attempting to link distinctive signs (such as marks and geographical indications (GIs)) with public health (or other meritorious objectives). In my own chapter, I conclude that GIs do not necessarily promote the consumption of healthier products, although they can certainly increase the quantity and quality of information related to the products they identify. (GIs are often used to identify products which, when consumed beyond moderate quantities, can be quite harmful to health—such as wines, spirits, cheeses, and cured meats.) Chon and Fujiye, however, explore whether certification marks can be used as complementary, if not as alternative, to products’ mandatory disclosure and labelling requirements since these marks provide precise information to consumers related to the quality and other characteristics of the products. Continue reading "Can Certification Marks Promote Health Related Goals?"

Rethinking Medicaid’s Core Mission

John V. Jacobi, Medicaid, Managed Care, and the Mission for the Poor, 9 St. Louis Univ. J. of Health L. & Pol’y 187 (2016).

Republican efforts to “repeal and replace” the Affordable Care Act have generated heated debate over the Medicaid program. Underlying this debate is a fundamental question: How should we define Medicaid’s core mission? In his article Medicaid, Managed Care, and the Mission for the Poor, Professor John Jacobi provides a possible answer to this question: raising the health status of the poor and vulnerable by improving their access to both medical care and the social goods and services whose absence impede health. His vision of Medicaid deserves serious attention by policymakers.

As Professor Jacobi explains, the health-related needs of the poorest Americans differ significantly from the non-poor. An enormous body of research documents the impact that social, environmental, and economic conditions have on individuals’ health. Indeed, poor quality housing, food insecurity, the stress of social inequalities, and other non-medical factors likely exert a greater influence on health than access to health coverage and medical care. Because these determinants of health disproportionately affect the poor and vulnerable populations served by Medicaid, their health care needs are far more fragile and complex than those of other populations. Many experts therefore have concluded that medical care should no longer be provided in isolation from social services, but instead should be part of a delivery system that coordinates clinical and non-clinical services and interventions. As Jacobi explains, “[t]his coordination requires not only the purposeful interaction of previously separate public services, but also coordination of the funding that flows to and through the providers of those services.” Continue reading "Rethinking Medicaid’s Core Mission"