Yearly Archives: 2018

Preeminent Work on Health Reform and Preemption

Elizabeth Y. McCuskey, Agency Imprimatur & Health Reform Preemption, 78 Ohio St. L.J. 1099 (2017), available at SSRN.

With the future of health law and policy shifting on a nearly daily basis, producing clear and stable health law scholarship has become a daunting task, risking leaving the field adrift during a period of vexing uncertainty. Evocatively handling this challenge, one piece of esteemed scholarship that has boldly filled a gap—and, I would submit, one of the best articles of health law scholarship over the last year—is Agency Imprimatur & Health Reform Preemption by Elizabeth Y. McCuskey. The article was a pleasure to read and review for this Jot.

No matter the future of specific features of the Affordable Care Act (ACA)—as many truly hang in the balance—McCuskey’s piece takes on a core principle and likely enduring feature of health care reform: the federal statute’s waiver mechanism. Her piece places the ACA’s “big” state innovation waiver (housed in Section 1332 of the Act) in the larger context of murky preemption doctrine and highlights its ultimate impact on judicial review, substantive policy expertise, and communicative federalism. McCuskey’s masterful treatment of a complicated topic is valuable not only given the instability in federal health reform, but given the fact that the ACA’s state-empowering waiver process is likely to only increase in importance and focus under the Trump administration. In short, her topic is likely to become only more significant, and her analysis more indispensable. Continue reading "Preeminent Work on Health Reform and Preemption"

Addressing Legal Estrangement

Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054 (2017).

The topic of police reform has received a great deal of attention in academic and policy circles in recent years. One of the most influential frames for the police reform conversation has been procedural justice. Procedural justice, closely associated with the work of Tom Tyler, has replaced a number of other theories of police reform that have fallen, at least temporarily, into the dustbin of history. The procedural justice reform frame focuses on increasing police legitimacy and restoring community trust in the police to improve legal compliance. To achieve that goal, police officers are encouraged to respect human dignity and equality by treating all people with respect, by listening as people express their concerns and feelings in the course of their interactions with police, and by policing in a neutral, nondiscriminatory way. This procedural justice approach stood at the center of the May 2015 Final Report of the White House Task Force on 21st Century Policing and police departments across the country have adopted procedural justice approaches and practices over the past few years.

Enter Monica Bell. Drawing on narrative data that she, along with a research team, collected in Baltimore, Maryland, in the wake of the police killing of Freddie Gray, Bell explains what is missing from the procedural justice frame. She argues that procedural justice centers concerns about compliance with the law, and consequently, focuses on increasing legitimacy in individual interactions to improve compliance. Or, as she puts it “in the version of legitimacy theory that policymakers have adopted most completely, trust between police and communities is understood as a problem of illegitimacy: the key concern is the degree to which people will choose to obey the law and its enforcers.” (P. 2072.) The intellectual origin of this model is Weberian analysis of the subjective process of legitimation, achieved through procedure and consent. The core analytical question at issue in this model is how to legitimate law enforcement in the eyes of the individual, thereby achieving greater compliance with the law. Procedural justice is the answer to this question. Continue reading "Addressing Legal Estrangement"

What Do Audits Teach Us About Tax Compliance?

For those interested in understanding taxpayer compliance—including what motivates taxpayers to report honestly and how to reduce tax evasion – there is a robust body of empirical and legal literature. A number of economists and lawyers have examined the effect of traditional deterrence mechanisms like audits and penalties, as well as non-economic factors like social norms, guilt, taxpayer attitudes about how their tax money is spent, and other psychological factors. While this growing body of literature provides a rich description of the myriad of factors that influence tax compliance decisions, our understanding of taxpayer behavior is far from complete, and further study continues to be necessary. In expanding our understanding of taxpayer motivations, one revealing but possibly overlooked resource is the IRS Taxpayer Advocate Service (“TAS”), which each year publishes a number of empirical studies and other reports relevant to tax compliance. The authors of TAS studies are uniquely situated in that they have access to IRS tax return data, which should provide the best evidence of how taxpayers make decisions in the real world.

As part of the Taxpayer Advocate’s most recent Annual Report to Congress, the TAS published Audits, Identity Theft Investigations, and Taxpayer Attitudes: Evidence from a National Survey (the “Report”). The Report surveyed 2,729 Schedule C filers, that is, taxpayers reporting income from self-employment. Of this group, roughly half (1,363) had been previously audited and half (1,366) had not. One of the primary goals of the Report was to examine how audits influence taxpayer attitudes and behavior. While several of the findings are predictable and consistent with other research on audits, three of the Report’s findings are quite surprising. Continue reading "What Do Audits Teach Us About Tax Compliance?"

What Is the Payoff from Public R&D Investments?

Pierre Azoulay, Joshua S. Graff Zivin, Danielle Li & Bhaven N. Sampat, Public R&D Investments and Private-Sector Patenting: Evidence from NIH Funding Rules (revised 2017), available at NBER.

Intellectual property scholars have increasingly recognized that IP is only one of many legal tools for incentivizing innovation. In addition to facilitating transfers from consumers to innovators through a “shadow tax” on IP-protected goods, the U.S. government also directly rewards innovators with public funds through R&D tax incentives, innovation prizes, and—most significantly—well over $100 billion per year in direct federal and state R&D support. This direct public science funding, which primarily goes to grants and national laboratories, has long been viewed as important to U.S. economic growth. But federal R&D spending has been declining and is the subject of an increasingly partisan divide, making this a key moment to ask: What is the public’s return on this investment?

In an outstanding empirical analysis, corresponding author Danielle Li at MIT Sloan and her three coauthors—Pierre Azoulay at Sloan, Joshua Graff Zivin at UC San Diego Economics and Public Policy, and Bhaven Sampat at Columbia Public Health (collectively, “AGL&S”)—have tackled this question for grant funding by the U.S. National Institutes of Health (NIH). With a budget of over $30 billion per year for biomedical research, the NIH is the single largest research funder in the world. But assessing the causal impact of this investment is difficult, even when focusing only on its effect on private-sector patents. How can one measure information flows in fields full of serendipity and spillovers? Are grants merely correlated with private-sector advances? Does public funding “crowd out” private investment? AGL&S’s empirical design makes progress on each of these issues, and they conclude that each $10 million in NIH funding in fact generates 2.7 additional private-sector patents. Continue reading "What Is the Payoff from Public R&D Investments?"

Making Sense of the Fee-Splitting Rule

Anthony Sebok, Selling Attorney’s Fees, U. Ill. L. Rev. (forthcoming 2018), available at SSRN.

The humble fee-splitting rule—Rule 5.4(a) of the Model Rules of Professional Conduct and its substantial equivalents in various states—plays an outsized role in structuring the delivery of legal services in the United States. The rule provides that, with limited exceptions, “[a] lawyer or law firm shall not share legal fees with a nonlawyer.” The fee-splitting rule is substantially the same even in jurisdictions with quirky rules of professional conduct, such as California, New York, and Texas. The only exception is the District of Columbia. Historically the concern of the fee-splitting rule was mostly payments to nonlawyers for referrals of cases, or the use of “runners” or “cappers” to solicit personal-injury clients. It featured prominently, however, in the debate in the early 2000’s over the proposal to allow multidisciplinary practices (MDPs), such as partnerships between accountants and lawyers. The acrimonious MDP debate ended with lawyers doubling down on the claim that the practice of law is a profession, not a mere business, and that avoiding the sharing of fees with nonlawyers is an essential firewall protecting lawyer professionalism. (Insert snark here about how an industry with total revenues of $86.7 billion—the 2017 AmLaw 100—can claim with a straight face not to be a “business.”)

Tony Sebok’s article, Selling Attorneys’ Fees, begins on familiar ground. The inability of law firms to obtain equity investments from nonlawyers limits their sources of capital to firm revenues and debt financing. This leaves them strapped for the cash that might catalyze Silicon-Valley-style innovation in the delivery of legal services and makes them vulnerable to economic downturns. One of the motivations for the ABA’s Ethics 20/20 Commission was to consider whether regulatory innovations might enhance the delivery of affordable legal services. However, the proposal to permit certain types of alternative business structures, which would have required relaxing the fee-splitting rule, went down in flames. The Illinois Bar Association filed a formal resolution opposing changes to the fee-splitting rule, and the Ethics 20/20 Commission responded by tabling any consideration of alternative business structures.1 Continue reading "Making Sense of the Fee-Splitting Rule"

Justice for Equality

Constance Backhouse, Claire L’Heureux-Dubé: A Life (2017).

Claire L’Heureux-Dubé was Canada’s second woman to join our Supreme Court of Canada. She was famous for her strong personality, her charm, her directness, and eventually her willingness to dissent. She was loved by some, loathed by others.

My opening paragraph so dramatically understates the significance of Justice L’Heureux- Dubé. It pretends that the life of one woman – a woman who faced substantial personal and professional challenges – can be adequately captured in a few words.

Enter Constance Backhouse’s brilliant biography. Biography is an art. How to render a person visible? To be appropriately honest about her failings and reflective about her successes? To situate her life within its broad context – social, political, economic, and scientific? To reflect her social character – her relationships and the effects of those relationships on the path of her life?

Backhouse’s considerable work answers these questions. Continue reading "Justice for Equality"

The Empirical Truth About Qualified Immunity

Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017).

The critical scholarly narrative surrounding civil rights litigation is that the Supreme Court in the past decade has expanded the defense of qualified immunity, particularly through a series of per curiam reversals of qualified-immunity denials, with the Justices impatiently demanding that lower courts properly (and expansively) approach immunity. The effect has been to slam the courthouse doors on injured plaintiffs. Expansive qualified immunity insulates all but the “plainly incompetent” and those who knowingly violate the law. It shields officers against liability except for the rare case in which the officer violated a constitutional right that was “clearly established” by binding precedent finding a constitutional violation on factually similar conduct in factually similar circumstances, or the rarer case in which the violation was so obvious in light of general constitutional principles (such as tying a prisoner to a hitching post in the sun for seven hours). And the Court moved the doctrine in this direction for unabashed policy reasons—to insulate law-enforcement and other public officials from the cost, burden, distraction, and expense of litigation, discovery, and trial, by raising the bar for liability and requiring resolution of immunity early in litigation.

In How Qualified Immunity Fails, Joanna Schwartz’s empirical study shows both the critical narrative and the Court’s purported goals to be empirically unsupportable. Continue reading "The Empirical Truth About Qualified Immunity"

When Reading the Fine Print is Actually Worse for Consumers: The Case of Unenforceable Terms

While disclosure has been the preferred regulatory tool to ameliorate problems arising from imperfect information, it often fails. In particular, everyone is familiar with the problems associated with not reading fine print: some blissfully uninformed consumers later regret a transaction once they discover hidden charges or attributes described in the unread contract. Formal research confirms that few consumers pay attention to fine print and that disclosures are poorly designed and too abundant to be effective.1

The promise of mandatory rules is to avoid these problems. If sensibly drafted, they can rescue consumers from the perils of their own inattention or laziness. Take landlord-tenant laws. In most states, the warranty of habitability and other rules afford tenants a host of legal rights, such as the right to retain payment of rent if the landlord does not deliver the property in livable conditions or fails to keep appliances functional. Continue reading "When Reading the Fine Print is Actually Worse for Consumers: The Case of Unenforceable Terms"

Making Sense of Causation in Mixed Motives Cases

Andrew Verstein, The Jurisprudence of Mixed Motives, 127 Yale L.J. (forthcoming), available at SSRN.

To say that the law of causation in mixed motives cases is a mess would be an understatement, as Andrew Verstein highlights in his article, The Jurisprudence of Mixed Motives. Most antidiscrimination laws require causation. That is, these laws proscribe adverse employment actions when they occur “because of” a protected characteristic, such as race or sex. The problem is that there are several types of causation, particularly where multiple motives are involved – which is almost always. Yet, few of those statutes specify what type of causation is required. Other statutes specify what type of causation is required, but with no clear definition (e.g., “motivating factor” causation, referenced in the Civil Rights Act of 1991). To make matters worse, courts and commentators often throw other undefined or ill-defined terms into the mix. And if we were inclined to look at other legal fields, such as tort law or constitutional law, in order to make sense of causation in employment discrimination law, we tend to encounter yet more ill-defined terms.

One might think – or at least hope – that it would be possible to (1) identify the universe of potentially applicable causal standards; (2) clearly define each of those standards (and their relationship to one another); and (3) attach a universally applicable and accepted label to each causal standard. That is, we might imagine a Rosetta Stone that would allow us to clear up the confusion that reigns in the Babel of causation. Such a tool would allow us to describe the law with precision and engage in meaningful (and perhaps even cross-substantive) discussions about the normative merits of any particular causal requirement. Continue reading "Making Sense of Causation in Mixed Motives Cases"

Expressivism, Corrective Justice, and Civil Recourse

Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 1 (2017), available at SSRN.

With clear examples, incisive and sweeping philosophical argumentation, and an engaging prosaic lilt, Scott Hershovitz writes about tort law the way his mentor Ronald Dworkin wrote about constitutional law. If this sounds like high praise, it is. Hershovitz’s Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 1 (2017) is a pleasure to read. Indeed, I regard Treating Wrongs as Wrongs as one of the most important torts articles published in many years. Its excellence of course motivates me to push hard against its central themes to see whether they stand up.

Hershovitz’s principal claim in this article is that “tort law is very much an expressive institution.” He explains what it means to say that an area of law is an expressive institution, why this is correctly said about tort law, what messages tort law expresses – “this person is entitled to be treated with dignity” and “the defendant wronged the plaintiff” – and why it is an important fact about tort law that it sends these messages. Continue reading "Expressivism, Corrective Justice, and Civil Recourse"