Monthly Archives: February 2018

The Perils of Wellness

Gordon Hull & Frank Pasquale, Toward a Critical Theory of Corporate WellnessBioSocieties (2017).

The non-stop growth of employee wellness programs presents a rich teaching (and scholarly) opportunity for health law faculty. We can interrogate the employers’ continued embrace of wellness programs, despite the absence of proven cost savings, and consider concerns about the programs’ purported voluntariness and the heavier burdens they place on workers who find meeting program demands difficult or objectionable. We can explore the evolution of laws (HIPAA and the ACA) establishing the legal parameters of wellness programs and how federal agencies have issued regulations seeking to reconcile their incentive structures with the anti-discrimination principles found in the ADA, GINA, and the ACA itself.

A new article by philosophy professor Gordon Hull and law professor Frank Pasquale offers a critical perspective on what wellness programs do accomplish for employers, even if they don’t produce health plan cost savings. The authors’ basic thesis is that wellness programs serve as a vehicle for employers to exercise increasing control over employees’ non-work lives and in the process to “entrench the idea that one belongs to one’s workplace, extending market relations … into the home and other spaces.” By drawing on philosophy (primarily Foucault) and neoliberal economic theory (for example, Gary Becker’s human capital theory), Hull and Pasquale unveil harms associated with employer wellness programs that go beyond concerns about worker privacy and their disparate impact on unhealthy or disabled employees. Integrating aspects of health law, political philosophy, and data analytics, the article offers a fresh, and troubling, view of wellness programs. Continue reading "The Perils of Wellness"

Governing The New Governors and Their Speech

Jack M. Balkin, Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech RegulationU.C. Davis L. Rev. (forthcoming 2018), available at SSRN.

Jack Balkin is one of the leading thinkers and visionaries in the fields of information and cyber law. Every one of his scholarly contributions must be closely read. His recent article, Free Speech in the Algorithmic Society is no exception. It is highly recommended to those interested in fully understanding the current and future tensions between emerging technologies and human rights. The article also provides numerous gems – well-structured statements that eloquently articulate the central challenges of the day, some of which are quoted below.

The article starts off by introducing and defining the “Algorithmic Society” as one that “facilitates new forms of surveillance, control, discrimination and manipulation by both government and by private companies.” As before, society is driven by those seeking fame and fortune. However, much has changed. For instance, Balkin lists the four main sources of wealth the digital age brings about as “intellectual property, fame, information security and Big Data.” To achieve such wealth in this society, individuals are subjected to being governed by algorithms. At the same time, firms and governments achieve “practical omniscience”, while not only knowing what is happening but often accurately predicting what will happen next. These enhanced abilities, Balkin warns, lead to power asymmetries between groups of people (and not only between individuals and technologies) and generate several substantial challenges. Continue reading "Governing The New Governors and Their Speech"

Rethinking Capital Felony Murder

Guyora Binder, Brenner Fissell, & Robert Weisberg, Capital Punishment of Unintentional Felony Murder, 92 Notre Dame L. Rev. 1142 (2017).

Guyora Binder, Brenner Fissell, and Robert Weisberg combine to address a significant flaw in the application of Supreme Court’s Eighth Amendment jurisprudence—the application of the Eighth Amendment to unintentional felony murder—in their recent Notre Dame Law Review article. Specifically, the authors argue that lower courts have misread the applicable Supreme Court precedents, Edmund v. Florida and Tison v. Arizona, to reach the unfortunate conclusion that an offender committing an unintentional felony murder is eligible for capital punishment.

Both cases address the application of the Eighth Amendment to felony murder. Enmund held that Florida’s imposition of the death penalty for felony murder violated the Eighth Amendment because the state failed to prove that Enmund killed or attempted to kill. Tison, by contrast, narrowed the holding of Enmund by finding that felony murder could serve as the basis for a death sentence in certain cases and not violate the Eighth Amendment. Particularly, the Tison court held that individuals who are major participants in a crime and demonstrate reckless indifference could receive the death penalty even though they did not kill or attempt to kill the victim. Continue reading "Rethinking Capital Felony Murder"

Redesigning the Cert Process

Daniel Epps & William Ortman, The Lottery Docket, 116 Mich. L. Rev. (forthcoming 2018), available at SSRN.

Every year thousands of parties ask the Supreme Court to hear their cases. Every year the Court disappoints the vast majority of them, selecting only about one percent of cert petitions. And every year scholars decry the Court’s choices—arguing that the Justices have taken too few cases and not even the most important ones at that. One can imagine the Justices turning to each other at conference and lamenting, “Everyone’s a critic!” But have we been raising the right sorts of criticisms? The Lottery Docket, by Daniel Epps and William Ortman, suggests not so much.

In this thoughtful piece, Epps and Ortman challenge both convention and conventional wisdom around case selection at the Court. The Justices fail to take the right cases not because (or not just because) they incorrectly identify which ones are important, as so much scholarship has stated, but precisely because they miss ones that are unimportant. By selecting and then deciding cases based on such factors as whether a given issue has resulted in a circuit split and attracted sufficient attention from amici, the Court has a distorted view of the legal landscape and thus how its decisions might affect parties and the courts below. Epps and Ortman’s elegant solution to the problem is to supplement the Court’s current docket with some randomly drawn cases from the courts of appeals—a “lottery docket.” Continue reading "Redesigning the Cert Process"

The Problem with Religious Freedom

Most likely, Tisa Wenger’s new book Religious Freedom: The Contested History of an American Ideal is not on many law professors’ reading lists. But for anyone who is interested in issues of church and state, race, and American empire, it should be. Wenger has uncovered a powerful collection of movements, legal claims, and government interference in religious life in the early twentieth century. Many of us have either never heard of them, or have not understood how crucial they were to religion’s role in public policy and (occasionally) resistance to government power. This is not a book written by a legal expert: the terms “disestablishment” and “free exercise” don’t appear here. But it is full of constitutional claims and legal conflict, as well as a careful examination of the incentives for invoking religious freedom.

Religious Freedom is in some ways a continuation of Wenger’s first book. In We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom, Wenger argued that Pueblo Indians successfully deployed the language of religious freedom in the 1920s to protect their dances from white interference. In the process, Wenger maintained, they subtly changed how they understood their own practice, buying into a division between what counts as religious and what is secular. Continue reading "The Problem with Religious Freedom"

Property, Race, Segregation, and the State

Property scholars have neither forgotten nor ignored the government’s role in creating and furthering racial segregation. Scholars have written extensive work on redlining,1 racially restrictive covenants,2 the siting of public housing in minority poor communities,3 and the resistance of wealthier white towns to affordable housing.4

Nevertheless, Richard Rothstein’s book, The Color of Law, should be required reading for property scholars and students. Beautifully written, the book is packed with new details and stories that illustrate the many ways government—at the local, state, and federal levels—denied African-Americans equal access to space and property. Continue reading "Property, Race, Segregation, and the State"

The Costs of Constitutional Principle

The law delivers uneven benefits for the protagonists of Daniel K. Williams’ masterful study of the early decades of the pro-life movement. Williams chronicles the transformation in the 1960s of what had been a religious crusade against contraception and abortion into a secular, rights-based cause that also appealed to some left-leaning Catholics and Protestants. Williams argues that antiabortion activists invested more in legal strategies after the Supreme Court’s decision in Roe v. Wade. Leaders of the movement became preoccupied with a constitutional amendment overturning Roe. Entanglement with law ultimately undercut demands for material benefits that some pro-lifers believed women required to have a real reproductive choice.

Williams first takes readers into the poorly understood years of early pro-life activism when “the campaign against abortion was almost inseparable from the Catholic Church’s fight against contraception.” (P. 4.) By studying the predominantly religious and medical debates that dominated the 1930s and 1940s, Defenders of the Unborn recovers a mostly lost prehistory of the abortion battle. At this time, as Williams shows, debate often turned not on the meaning of the Constitution but on the medical need for abortion and the religious beliefs of those opposed to it. Williams also traces the origins of now-ubiquitous comparisons of abortion and the Holocaust to this period.

As Williams’ story moves into the 1950s and 1960s, the antiabortion movement often relied on law and lawyers. Defenders of the Unborn digs deep into early debates about abortion reform in California when Walter Trinkaus, a lawyer representing the California Conference of Catholic Hospitals, argued that legal disputes should turn on whether the fetus was a person. Although it was far from evident at the time, Trinkaus’ argument would soon come to define those who for the first time identified themselves as part of a social movement. Continue reading "The Costs of Constitutional Principle"

Muslim China: Regulating Religious Resistance and Cooptation

In late October of 2017, China’s central leader Xi Jinping gave a speech in which he expressed a renewed campaign to “sinicize” religious practice under greater Party control. This call is part of a long history of ambivalence, repression and bureaucratization that has characterized the uneasy practice of religion under China’s formally atheist single-party state. But it this tactic of bureaucratization that most eludes outside understandings of the regulation of religion in China.

Into this relative void, Matthew Erie’s China and Islam: The Prophet, the Party, and Law presents a model of the contribution that legal ethnography can make to understanding not only the regulation of social life in contemporary China but also to a myriad of critical issues constituting the multi-faceted relationship of Islam to contemporary nation-states. As both a socio-legal and comparative inquiry, Erie’s ethnographic and scholarly investment over the better part of decade has produced a rich empirical account that speaks in a wide range of theoretical and disciplinary registers and offers value for an equally wide range of readers. Continue reading "Muslim China: Regulating Religious Resistance and Cooptation"

The Ties that Bind—and Cut

Domenico Starnone, Ties (translated by Jhumpa Lahiri, 2017).

“Happy families are all alike; every unhappy family is unhappy in its own way.”
(Come on, you know who said this)

Family law, in the limited way we have construed it over the last eighty years or so, deals almost entirely in unhappy families.1  When the law comes in it is separation, divorce, or restraining order time, custody determination, child support, abuse and neglect time. Happy memories are in the past, and the only thing that remains is an accounting, whose apparent aim is to make possible a—legally—bearable life in the future.

Yet family law tries to defy Tolstoy’s observations about unhappy families. It attempts to categorize and systematize types of unhappiness, put them in boxes to make them manageable by judicial or administrative fiat. The attempt, no matter how necessary, often proves to be just that, an attempt, incomplete and even incoherent.  The messy incommensurability of intimate relations often forces family law to crack at the doctrinal seams, allowing infinite variations of family unhappiness to burst out without much hope of systematic categorization or containment. How else can we grapple with the “best interests of the child” standard, for example, with its grand gesture towards certainty and a concurrent knowing wink about the impossibility of predicting the future? Even the past, theoretically more knowable than the future, flickers in and out of focus in doctrinal vehicles as mysterious as “irretrievable breakdown,” which—inevitably—become the equivalent to a judicial rubber stamp on a decision already made, rather than a coherent description of a set of events in the world. Continue reading "The Ties that Bind—and Cut"

Now What? Substantive Racial Justice in Turbulent Times

Geoff Ward & Peter A. Hanink, Deliberating Racial Justice: Toward Racially Democratic Crime Control, in The Routledge Handbook of Criminal Justice Ethics (Jacobs & Jacobs eds., 2016), available in preprint.

My reading of Deliberating Racial Justice: Toward Racially Democratic Crime Control (Chap. 18 of The Routledge Handbook of Criminal Justice Ethics) came about because of a research project1 about the role of law in implementing inclusionary practices. That project focuses on practices intended to overcome exclusion in specific parts of society in Latin America and Europe, but as Ward and Hanink observe, historical practices of exclusion, and their legacies, appear everywhere: “Worldwide, racial and ethnic group domination of legal authority—through legislation, within courts, in policing, and among influential associations—has proven a fundamental mechanism of oppression and domination, that is, a practical means by which groups defined by race have been denied self-realisation and societal participation.” (P. 283.)

With these words, the authors neatly pinpoint the problem — the injustices — that strategies and policies intended to remedy racial oppression and advance racial equality must address. In the body of this well-crafted essay, the authors critically examine one familiar response to racial oppression, “representation,” looking in particular at its capacity to change existing practices of domination through legal authority and to enable self-realisation and societal participation regardless of race. They situate their examination of this topic in the specific context of crime control administration in the United States of America. However, the paper’s exploration of how representation is typically implemented, exposure of the limitations of mainstream approaches, and advocacy of a more substantive model of “deliberative representation” as a means to advance racial justice gives the paper significance outside the United States and beyond criminal justice. Continue reading "Now What? Substantive Racial Justice in Turbulent Times"

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