Monthly Archives: August 2018

Jotwell 2018 Summer Break

Jotwell is taking a short summer break. Posting will resume on Monday, September 3. However, even while we’re on break, we’ll be accepting submissions, editing them, and updating various technical parts of the site.  We’ll also be planning our fall fundraiser, so this is good time to ask you to please help support Jotwell; give enough and we may not have to have do the fundraiser at all.

Jotwell Flyer

Click for full-size printable version

If you like Jotwell, share — help us find more readers. Tell a friend about Jotwell. And if you are an academic reader, please consider recommending Jotwell to your students. We have the 2018 edition of our Jotwell Orientation Flyer for students that you can print out and post, or perhaps even hand out at Orientation. 

See you in two weeks, when we start the new academic year.

Should the Right to Aid in Dying Include a Right to Euthanasia?

As more and more states legalize physician aid in dying, it appears that the acceptability of aid in dying turns on three critical requirements—that the patients be competent to make medical decisions, that they be terminally ill, and that they self-administer the lethal dose of medication. From Oregon to Hawaii, every state that has legalized aid in dying has included these three criteria for eligibility. But a report from Canada on that country’s experience with aid in dying suggests that only two of the three requirements may be needed.

The three basic requirements help ensure that patients really are suffering from a serious illness that is incurable and irreversible. They also help ensure that the desire for aid in dying reflects a genuine expression of self-determination rather than the irrational choice of someone suffering from mental illness. Controversial cases of aid in dying have involved patients who were no longer able to express their wishes or who appeared to need psychiatric care. Continue reading "Should the Right to Aid in Dying Include a Right to Euthanasia?"

The GDPR’s Version of Algorithmic Accountability

Lilian Edwards and Michael Veale, Slave to the Algorithm? Why a ‘Right to an Explanation’ is Probably Not the Remedy You are Looking For, 16 Duke L. & Tech. Rev. 18 (2017), available at SSRN.

Scholarship on whether and how to regulate algorithmic decision-making has been proliferating. It addresses how to prevent, or at least mitigate, error, bias and discrimination, and unfairness in algorithmic decisions with significant impacts on individuals. In the United States, this conversation largely takes place in a policy vacuum. There is no federal agency for algorithms. There is no algorithmic due process—no notice and opportunity to be heard—not for government decisions, nor for private companies’. There are—as of yet—no required algorithmic impact assessments (though there are some transparency requirements for government use). All we have is a tentative piece of proposed legislation, the FUTURE of AI Act, that would—gasp!—establish a committee to write a report to the Secretary of Commerce.

Europe, however, is a different story. The General Data Protection Regulation (GDPR) went into direct effect on EU Member States on May 25, 2018. It contains a hotly debated provision, Article 22, that may impose a version of due process on algorithmic decisions that have significant effects on individuals. For those looking to understand how the GDPR impacts algorithms, I recommend Lilian Edwards’ and Michael Veale’s Slave to the Algorithm? Why a ‘Right to an Explanation’ is Probably Not the Remedy You are Looking For. Edwards and Veale have written the near-comprehensive guide to how EU data protection law might affect algorithmic quality and accountability, beyond individualized due process. For U.S. scholars writing in this area, this article is a must-read. Continue reading "The GDPR’s Version of Algorithmic Accountability"

Prison Labor Through the Lens of International Trade

Lan Cao, Made in America: Race, Trade, and Prison Labor, available at SSRN.

Twenty years ago this September, over 3500 activists gathered in my home town of Berkeley, California, for a conference entitled “Critical Resistance: Beyond the Prison Industrial Complex.” Their purpose was to reject outright the project of criminal justice reform and to call instead for the complete abolition of prisons, jails, and other human cages.

Central to the argument for prison abolition is the notion that we law teachers mislead our students when we teach our students that the purpose of prisons and jails is to effect retribution, rehabilitation, incapacitation, and deterrence. Abolitionists argue (as do many contemporary academics) that incarceration is terrible at preventing and punishing criminality. Rather, prison responds to deeper political and economic needs. From a political perspective, the carceral system serves the purpose of social control: it expresses racism and helps produce “race;” it helps manage “surplus” populations made economically marginal by globalization and automation of production; and it establishes a new template for governance in the wake of the perceived failures of the 1960s welfare state.

Abolitionists often argue that prison serves an economic function as well. For example, Critical Resistance member Angela Davis says of the 1980s mass incarceration boom,

[A]s the U.S. prison system expanded, so did corporate involvement in construction, provision of goods and services, and use of prison labor. Because of the extent to which prison building and operation began to attract vast amounts of capital – from the construction industry to food and health care provision – in a way that recalled the emergence of the military industrial complex, we began to refer to a “prison industrial complex.”

Many contemporary scholars have offered evidence and argument to support abolitionists’ political theory of the carceral state—Michelle Alexander, Loïc Wacquant, Jonathan Simon, Marie Gottschalk, and others come to mind. But the assertion that a vast “prison industrial complex” (hereafter PIC) profits from incarceration is much less well supported by the evidence. Prisons and jails look much more like zones of “dead capital,” in Ruth Wilson Gilmore’s phrase: prisoners languish rather than work, new facilities fail to produce promised community jobs, and private prisons remain a relatively small part of the carceral system (although attorney general Jeff Sessions has recently given them a thumbs-up to expand). In Made in America: Race, Trade, and Prison Labor, however, Lan Cao provides some intriguing support for the economic part of the abolitionist case. Continue reading "Prison Labor Through the Lens of International Trade"

Why Military Justice Doesn’t Get Enough Academic Attention

The military justice system receives embarrassingly little attention from the legal academy in general and from legal scholarship in particular. Part of that may be the Supreme Court’s fault; it has been 35 years since Congress gave the Court direct appellate jurisdiction over the Court of Appeals for the Armed Forces (“CAAF”), the Article I court that sits atop the court-martial system. In that time, the Court has taken ten cases from CAAF—almost all of which, including Ortiz from this Term (which I argued on behalf of the Petitioner), have involved structural questions about the jurisdiction of military courts, the appointments of military judges, or both. There are compelling reasons why the Justices can and should take more (and more substantive) cases from CAAF, but there are important limits on their power to do so. Under current law, CAAF has discretion to choose which cases it hears (it has mandatory jurisdiction only in capital cases and those referred to CAAF by service-branch Judge Advocates General), and the Supreme Court can grant certiorari only if CAAF itself reviewed a court-martial appeal. As a result, a direct constitutional challenge to a criminal conviction cannot get to the Supreme Court if it arises from a court martial that CAAF does not review—the only context in the entire federal system today in which that is true. And as I have argued elsewhere, it is not because these cases are unimportant. Instead, “there are plenty of cases that the Court can take from CAAF but doesn’t, and there are even more cases that it can’t take but otherwise should.”

But the dearth of Supreme Court attention to the military justice system hardly explains the dearth of scholarship about it. After all, the Court has decided exactly one case arising out of the Guantánamo military commissions since they were established in November 2001, which have produced exactly eight convictions, all or parts of five of which have not survived appeal. Yet the pages of law reviews and legal monographs are replete with detailed analyses of the various disputes arising from those proceedings. Instead, the best that can be said about the paucity of good military justice scholarship is that, for whatever reason, there is not the same interest among non-military lawyers in the myriad substantive, procedural, and evidentiary issues that arise in the court-martial system. This is true even though that system has (1) increasingly focused its work on offenses that look less and less like the classic military offenses subjected to military justice at the Founding and that therefore increasingly raise legal questions of general applicability; and (2) recently undergone some of the most important and sweeping reforms since the enactment of the Uniform Code of Military Justice (UCMJ) in 1950. Instead, almost all of the best military justice scholarship these days has come from military lawyers—such as Captain Brittany Warren’s 2012 Military Law Review article.

The latest example is a 2016 article by Rodrigo M. Caruço, a Captain and lawyer in the U.S. Air Force Judge Advocate General’s corps, which offers a quantitative and qualitative assessment of the role of CAAF within the military justice system. As Caruço documents, CAAF both is, and sees itself as, “the supreme court of the military judicial system,” which is why Congress created its predecessor as part of the UCMJ. But rather than act like a “court of last resort,” CAAF “acts as an intermediate error-correction court…far too often.” Even though CAAF only conducts plenary review of approximately 40 convictions per year, Caruço’s quantitative analysis suggests that somewhere between half and 90% of its decisions in such cases entail little more than modest error correction. And because of the aforementioned limits on the Supreme Court’s appellate jurisdiction, the net effect is to dramatically reduce the incidence of “law declaration” within and without the military justice system. Instead, the overwhelming majority of cases (and issues) within the military justice system get no further than the intermediate appeals courts—the service-branch courts of criminal appeals—which themselves dispense of most appeals summarily. Continue reading "Why Military Justice Doesn’t Get Enough Academic Attention"

The Human Side of Markets

Too often when discussing matters of markets and finance, policymakers and scholars lose focus of the basic fact that people are at the core of markets and finance. It is people who move markets. It is people who generate supply and demand. It is people who need financing—for homes, for investments, for education, for healthcare, and other life decisions. Behind the faceless reams and terabytes of data are people who make up the fuels and gears of the marketplace. Behind the powerful models and promising technology that frequently dominate the contemporary financial markets are people. Properly recognizing the fact that people are at the heart of markets and finance is one of the critical keys to better understanding and harnessing the power of markets and finance.

Two illuminating new books, one by a legal scholar and one by a financial economist, delve into different noteworthy aspects of the human side of markets. Professor Mehrsa Baradaran of the University of Georgia School of Law recently published The Color of Money: Black Banks and the Racial Wealth Gap, a book that examines the long-lasting effects of racism, markets, and regulation on Black communities in the United States; and Professor Andrew Lo of the Massachusetts Institute of Technology’s Sloan School of Management recently published Adaptive Markets: Financial Evolution at the Speed of Thought, a book that offers a new and more human-oriented framework for thinking about markets. Each book is distinct in their areas of focus and scope, but they both share a fundamentally human-centered perspective about the promising and perilous roles of people in market and financial decisions. Continue reading "The Human Side of Markets"

Is Contract Law Only for the Stubborn?

Aditi Bagchi, Contract and the Problem of Fickle People, 53 Wake Forest L. Rev. ___ (forthcoming), available at SSRN.

Whether by design or by accident (or both), the world rewards people who are stable—who have reliable desires, low discount rates, and long-term plans. Young children who pass the marshmallow test appear to do well on achievement tests ten years later. “Commitment” and “follow-through” are often prized cultural values, and focus and single-mindedness often correlate with success. We link consistency with rationality; economists often don’t even know what to do with people who don’t have consistent preferences.

As Aditi Bagchi suggests in Contract and the Problem of Fickle People, maybe the law inappropriately helps to enshrine this state of affairs. Even if stability contributes to productivity—we can’t build skyscrapers or microprocessors if we’re changing our minds all the time—perhaps arguments routinely made about the private law artificially and accidentally overvalue stubbornness, rigidity, and resistance to change. Continue reading "Is Contract Law Only for the Stubborn?"

Criminal Fines and the New Debt Peonage for Poor Fathers

Cortney Lollar, Criminalizing (Poor) Fatherhood, 70 Ala. L. Rev. __ (forthcoming 2018), available at SSRN.

In the 1980s and 1990s, many scholars and advocates debated the best way to reform our country’s welfare system. During those debates, feminists called for increased enforcement of child support orders against “deadbeat dads.” Congress enacted the 1996 welfare reform act known as the “Personal Responsibility Act” at the same time as it promulgated “war on crime” measures that increased federal penalties for drug-related crimes. Twenty years later, our country is experiencing both a rising gap between the rich and poor and mass incarceration of men of color. Many scholars have discussed the problem of mass incarceration, but there is far too little scholarship on the experience of poor people affected by welfare reforms.

Cortney Lollar’s Criminalizing (Poor) Fatherhood shines a welcome spotlight on the role that law plays in increasing the misery of the poor. In this well-written and well-reasoned article inspired by Lollar’s experience as a public defender, she shows how the confluence of welfare reform and criminal-enforcement measures result in state child support systems that jail non-custodial fathers who cannot afford to pay their child support. Lollar uses feminist analysis to demonstrate how an approach once advocated by feminists actually perpetuates stereotypes about fathers as providers and undermines their relationship with their children, without aiding the mothers who the reforms were supposed to help. Criminalizing (Poor) Fatherhood is a must read for anyone interested in how our criminal justice system perpetuates racial, class, and gender inequality in our society. Continue reading "Criminal Fines and the New Debt Peonage for Poor Fathers"

Two Views on the Nationwide Injunction

I feel a bit like Gilligan in one of my favorite episodes of Gilligan’s island. The Professor and the Skipper are having an argument over some issue vital to the castaway’s prospects of being rescued from the island. Gilligan is standing in the middle agreeing with everything both parties to the argument say, and finally the two disputants become fed up with Gilligan’s endorsement of diametrically opposing views and they turn on him.  In this Jot, I praise two articles that take conflicting views on an issue vital to the future of administrative law, namely, when should federal courts, confronted with unconstitutional or otherwise illegal Executive Branch action, issue nationwide injunctions: Sam Bray’s Multiple Chancellors: Reforming the National Injunction, and Amanda Frost’s In Defense of Nationwide Injunctions. Hopefully, the reader won’t turn on me.

Bray’s article, which was reviewed by Professor Kevin Walsh in a pre-publication Jot in the Courts Law section of Jotwell, is deeply skeptical of the nationwide injunction, arguing that federal injunctions should be no broader in scope than necessary to protect the plaintiff from the injury underlying the plaintiff’s standing to seek the injunction in the first place. By contrast, Frost’s article contends that federal courts should be willing to grant nationwide relief not only when necessary to provide plaintiffs with complete relief but also when necessary to protect numerous similarly situated parties who cannot quickly bring their claims to federal court. Continue reading "Two Views on the Nationwide Injunction"

Valuing Coworker Bonds in Employment Law

Naomi Schoenbaum, Toward a Law of Coworkers, 68 Ala. L. Rev. 605 (2017).

In Jackson v. Deen, 959 F. Supp. 2d 1346 (S.D. Ga. 2013), an employee brought a Title VII claim against her employer on the grounds that her coworkers had been subjected to racial harassment. The employee did not complain that she had been subjected to such harassment. Instead, she claimed to have suffered a cognizable injury because her employer’s harassment of coworkers “deprived her of ‘harmonious working relationships with her African-American subordinates …’” Id. at 1354. Rejecting the notion that the plaintiff was an aggrieved party under Title VII, the court explained that “[q]uite simply, workplace harmony is not an interest sought to be protected by Title VII.” Id. at 1355. In her article, Toward a Law of Coworkers, Professor Naomi Schoenbaum recognizes that this may be true as a matter of current employment law, but she takes issue with the notion that workplace harmony is not an interest worth protecting through employment law.

The premise of Schoenbaum’s article is relatively straightforward: modern employment law is so focused on individual rights that it is generally unconcerned about encouraging coworker bonds. One of the things that makes this thought-provoking article so interesting, however, is how clearly Schoenbaum explains exactly how employment law undermines coworker bonds and exactly why that is a bad thing. Continue reading "Valuing Coworker Bonds in Employment Law"

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