Yearly Archives: 2018
Jul 25, 2018 Wyatt SassmanLegal History
I am probably too early in my career to recognize a watershed piece of scholarship, but this sure seems like one to me. In her most recent article, Maggie McKinley traces the origins of the administrative state to the historical practice of petitioning Congress for relief, as protected by the Petition Clause of the First Amendment. She details how Congress afforded petitions important procedural protections, and tells the story of how Congress eventually “siphoned off” its responsibility for resolving these petitions to boards, commissions, and other ad hoc bodies that became the foundation of the modern administrative state. Her overarching thesis is that the petition process reveals a constitutional obligation originally located in Congress, and now located in the administrative state, to ensure individualized and meaningful participation in federal lawmaking.
This thesis is, among other things, a breath of fresh air in a heated yet stale debate about the constitutional validity of the administrative state. As Kristin Hickman recently surveyed for Jotwell, this debate has fixated for decades on whether or not we can assume the constitutional validity of the administrative state from either its existence or its practical necessity to modern life. McKinley offers what I think is a truly novel argument to this contest: that the constitutional basis for the administrative state is at least partly rooted in the First Amendment’s right to petition the government. Drawing on a wide range of sources from Founding-era practices to legal process theory, her insights will interest readers on all sides of this debate. Continue reading "Excavating Congress’s Relationship to the Administrative State"
Jul 24, 2018 Dennis PattersonJurisprudence
Legal positivism—or one style of doing positivist legal theory—is dead. Of course, there are different types of legal positivists in the world. For example, some legal positivists take a page out of the book of their opposite number, natural law theorists. But natural law theory —belief in a single right moral answer to legal questions—is going nowhere. To believe otherwise is to evince embarrassingly bad aesthetic judgment. Better to revive/reframe legal positivism. The way to do that is to return to the work of the master, Hans Kelsen, for it is only through a rethinking of Kelsen that legal positivism can be saved from its most ardent supporters in Oxbridge and North America.
This is the opening gambit to one of the most intriguing books in legal theory in recent memory. Alexander Somek—who has written two brilliant books on EU law and an equally impressive book on global constitutionalism —has produced a book every Anglophone legal theorist should read. To be sure, Somek writes in a style most Anglophone legal philosophers will find off-putting. While references to Hegel and Fichte abound, I have never read anyone who has a comparable command of the secondary literature in Analytic Legal Theory. Somek has read everything (in legal theory, analytic philosophy, German philosophy and more) and his analysis of the work of contemporary analytic legal theorists is itself ample reward for the time needed to consider his arguments. Continue reading "After Legal Positivism"
Jul 23, 2018 Mary FanCriminal Law
- Jennifer Lee Koh, When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement, __ Wash. U. L. Rev. __ (forthcoming), available at SSRN.
- Jennifer Lee Koh, Removal in the Shadows of Immigration Court, 90 S. Cal. L. Rev. 181 (2017).
Regardless of your views over the nationwide protests over family separations and refugee incarceration, these times are an urgent call to understand what is happening in our nation’s immigration system. Just as Padilla v. Kentucky’s holding on the duty to advise regarding the immigration consequences of a guilty plea underscored the need for criminal defense attorneys to understand immigration law, these times are a call to us as educators. Our students, family, friends, and the media turn to us to understand the policies and process behind the human dramas.
Contemporary aggressively streamlined immigration process is a mystery to most of us. As criminal justice scholars, many of whom have practiced in the field, we expect a certain semblance of process, even if we critique that process as less than we would hope. We expect a certain baseline of rights. Jennifer Lee Koh’s body of recent work is powerful and timely because it guides us through the realities of present immigration process, which defies expectations. Continue reading "Extreme Expedition"
Jul 20, 2018 Juliet StumpfLexImmigration
Public rhetoric about immigration paints the issues in stark terms. Immigrants are either criminals and terrorists or they are family members, workers, and survivors of persecution. Immigration is either our secret sauce, the key to our national prosperity, or it is the sleeper cell in our midst, the smooth-talking snake. It is about inclusion or exclusion, banishment or return, belonging or outcast. Immigrants are virtual citizens, or vicious vipers. They are law-abiding; they are lawless.
Amanda Frost’s Cooperative Enforcement in Immigration Law describes how this dichotomy in the discourse plays out in approaches to deportation policy. Deportation policy, she observes, is stuck in two parallel grooves. It demands either unfettered deportation of unlawfully present noncitizens, or the exercise of prosecutorial discretion to permit prescribed groups of noncitizens to remain in the United States without a recognized status. Continue reading "Modernizing Immigration Enforcement"
Jul 19, 2018 Ilya SominConstitutional Law
- Glenn Reynolds, Splitsylvania: State Secession and What to do About it?, available at SSRN.
- Richard Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163 (2018).
Recent years have seen extensive focus on legal and political conflicts between states and the federal government. Dissenting states seek greater autonomy from federal dictates. Ongoing legal battles over Obamacare and sanctuary cities are just the latest examples of this phenomenon. But we have also seen a lesser well-known trend of conflict between states and local governments. Two new articles, by prominent legal scholars on opposite sides of the political spectrum contend that local governments should have greater autonomy from states. They make a solid case that could be even stronger if each side were more able to acknowledge the concerns of the other.
There is a long history of academic analysis of state-local relations, and scholars such as Yale Law School Dean Heather Gerken have previously made a case for increasing local autonomy. But these new articles related this longstanding topic to recent political controversies—and to our world of severe political polarization, where the conflicts between opposing parties and ideologies are more virulent than they have been for some time. Continue reading "Should Local Governments Have Greater Autonomy from State Governments?"
Jul 18, 2018 Rebecca TushnetTechnology Law
Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor (2018).
We have a problem with poverty, which we have converted into a problem with poor people. Policymakers tout technology as a way to make social programs more efficient, but they end up encoding the social problems they were designed to solve, thus entrenching poverty and over-policing of the poor. In Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, Virginia Eubanks uses three core examples—welfare reform software in Indiana, homelessness service unification in Los Angeles, and child abuse prediction in Pennsylvania—and shows that while they vary in how screwed up they are (Indiana terribly, Los Angeles a bit, and Pennsylvania very hard to tell), they all rely on assumptions that leave poor people more exposed to coercive state control. That state control both results from and contributes to the assumption that poor people’s problems are their own fault. The book is a compelling read and a distressing work, mainly because I have little faith that the problems Eubanks so persuasively identifies can be corrected.
Eubanks writes:
Across the country, poor and working-class people are targeted by new tools of digital poverty management and face life-threatening consequences as a result. Automated eligibility systems discourage them from claiming public resources that they need to survive and thrive. Complex integrated databases collect their most personal information, with few safeguards for privacy or data security, while offering almost nothing in return. Predictive models and algorithms tag them as risky investments and problematic parents. Vast complexes of social service, law enforcement, and neighborhood surveillance make their every move visible and offer up their behavior for government, commercial, and public scrutiny. Continue reading "The Difference Engine: Perpetuating Poverty Through Algorithms"
Jul 17, 2018 Kevin E. CollinsIntellectual Property Law
Daniel J. Hemel and Lisa Larrimore Ouellette,
Innovation Policy Pluralism, 128
Yale L. J. (forthcoming), available at
SSRN.
In previous work, Daniel J. Hemel and Lisa Larrimore Ouellette explored the range of tools available to regulators interested in promoting innovation. (See Ted Sichelman’s jot.) While legal scholars addressing innovation policy frequently focus solely on patent law—in fact, the term “intellectual property” is often employed as a synecdoche to refer to the broader scholarly field of innovation policy—Hemel and Ouellette argued that viewing patents, prizes, grants, and tax credits as imperfect substitutes allows the public goods problem that underlies innovation policy to be solved in a variety of different ways, each with its own advantages and disadvantages.
In their most recent work, Innovation Policy Pluralism, Hemel and Ouellette push their earlier argument one step further. They again increase the number of tools in the innovation-policy toolkit by developing a divide-and-recombine approach to intellectual property and its quasi-substitutes. They argue that any given tool for promoting innovation has two “separate and separable” components. First, it has an innovation incentive or a “payoff structure for the producers of knowledge goods.” Second, it has an allocation mechanism that “establish[es] the conditions under which consumers can use knowledge goods.” Hemel and Ouellette provide a thorough, clearly argued, and convincing analysis of the combinatorial possibilities that arise from this finer-grained analysis of the components of innovation-policy regimes. Continue reading "Innovation Policy Pluralism, or Innovation Policy Hybridism?"
Jul 16, 2018 Nicolas TerryHealth Law
Barbara J. Evans,
The Genetic Information Nondiscrimination Act at Age 10: GINA’s Controversial Assertion that Data Transparency Protects Privacy and Civil Rights, 60
William & Mary L. Rev. (forthcoming), available at
SSRN.
Barbara Evans is one of our preeminent privacy scholars (with a pretty nifty sideline in FDA law). She specializes in intricate and precise analysis, very carefully mixing “big picture” policy arguments with deft doctrinal detail. This article on the Genetic Information Nondiscrimination Act (GINA) is no exception. GINA, of course, was one of the products of The Ethical, Legal and Social Implications (ELSI) Research Program funded by the NIH under the Genome project. The Genetic Information Nondiscrimination Act at Age 10: GINA’s Controversial Assertion that Data Transparency Protects Privacy and Civil Rights is a timely reminder not only of GINA’s tenth anniversary but also, increasingly, the proliferation of genetic information across clinical, research, and consumer domains. As Evans notes, “If GINA failed in its first decade to save us from genetic discrimination, it may have been a harmless error, because the human genome was too poorly understood at the time to lend itself to very many nefarious uses. If GINA failed, then so did the science, and it all somehow worked out. This does not imply, however, that GINA’s civil rights protections are unimportant; they may simply have been premature.” Another reminder inherent in the article is that health care suffers from a poorly synchronized combination of data protection models, including the HIPAA Rules, the Substance Use rule (aka 42 CFR Part 2), GINA, the Americans with Disabilities Act, and the Common Rule.
At the core of the article is a most perceptive observation—that GINA expanded the federal regulatory program for genetic and genomic testing from safety regulation to civil rights regulation, including privacy protections and prohibitions on discrimination. At first sight, the specific legal issue to which Evans turns her attention does not seem particularly earth-shattering—a GINA-authorized amendment to the HIPAA Privacy Rule. HIPAA had already allowed patients to access their healthcare data held by physicians. However, the GINA-initiated regulatory change in 2014 granted them access to “laboratory-held data, including genetic and genomic information as well as assorted other diagnostic test results that laboratories hold in their files.” This change did not sit well with a range of health regulators (or the laboratories). They viewed much of the assembled genetic data as incomplete or of sub-clinical quality, yet here were patients being granted legal access to it! Continue reading "Unpacking Safety and Civil Rights Regulation of Genetic Data"
Jul 13, 2018 Elizabeth Ruth DaleLegal History
By coincidence, I was reading Kathleen Belew’s book, Bring the War Home: The White Power Movement and Paramilitary America, the same week I read Jill Lepore’s recent article, The Rise of the Victims’-Rights Movement, in The New Yorker. The overlap was striking and well worth the consideration by legal historians.
Belew’s recent history is about the rise of a white power network across the United States in the years since Vietnam. It explores, through the study of a series of incidents, how a number of seemingly separate white supremacist groups came together, first on the ground and then through the internet. As Belew traces the network’s increasingly violent acts against those it considered outsiders, she shows why its racial view of the world (with its neat categories of “us” versus “them”) ultimately led it to declare war on the federal government in the early 1980s. In the process, she also describes the series of tactical decisions (and missteps) by federal prosecutors that led the government to underestimate and understate the extent of the white power movement. Her book’s great strength is revealing that network’s breadth across time, space, and a series of events culminating in the Oklahoma City bombing in 1995 (the epilogue ties the events in the book to the shooting at Emanuel A.M.E. church in Charleston). Continue reading "Victims’ Rights and White Power"
Jul 12, 2018 Howard M. WassermanCourts Law
Jonathan F. Mitchell,
The Writ-of-Erasure Fallacy, 104 Va. L. Rev. __ (forthcoming 2018), available at
SSRN.
Everyone—public, media, government officials, courts, and first-year law students—understands constitutional litigation in light of two ideas. From Marbury v. Madison’s declaration that it is “emphatically the province and duty of the Judicial Department to say what the law is,” everyone believes that the Supreme Court gets the final, uncontestable word on what the Constitution says and means. And a court exercising judicial review “strikes down” or “sets aside” or “invalidates” unconstitutional laws, rendering them null and void for all purposes, erased from existence, as if never enacted and no longer available as “law.”
In a new article, Jonathan Mitchell labels this the “writ-of-erasure fallacy,” the erroneous “assumption that a judicial pronouncement of unconstitutionality has cancelled or blotted out a duly enacted statute, erasing that law from the books, vetoing or suspending it and leaving nothing for the executive to enforce now or in the future.” In fact, judicial review is more limited. Having identified a law as constitutionally invalid, a court may decline to enforce that law in a particular case or it may enjoin executive officers from enforcing the law while the injunction remains in effect. But the statute continues to exist as law unless and until repealed by the enacting legislature. It is a fiction that courts “strike down” or “block” or “invalidate” statutes. That fiction creates misunderstandings about constitutional litigation and the effect of judicial rulings in constitutional cases. And that fiction unnecessarily limits the power of the executive to enforce still-existing law and of the legislature to enact new or amended laws. Continue reading "A Step Toward a Proper Understanding of Constitutional Litigation"
