Monthly Archives: June 2019
Allison K. Hoffman, Health Care’s Market Bureaucracy
, 66 UCLA Law Rev.
__ (forthcoming, 2019), available at SSRN
Nearly all politically viable solutions for the health system’s ills over the last four decades have been market-based solutions aimed at harnessing the competitive pressures of the market to produce better outcomes at lower cost while preserving individual choice. In Health Care’s Market Bureaucracy, Professor Allison Hoffman reviews the empirical evidence of the effectiveness of such policies in three primary areas – the market for health insurance, the market for medical care from the patient/demand-side, and the market for medical care from the provider/supply-side. She then systematically breaks down both the costs of insisting on a market-based approach to health care and the illusory nature of individual choice within such approaches.
There are, of course, many health law and policy scholars who believe a market-based health system is not a normatively desirable approach to health care. But what makes this article so powerful is that it takes on market-based theorists on their own terms, analyzing the evidence of whether and to what extent the market has delivered desired results. The article is valuable, in part, simply because it takes a holistic view of market-based health policy. But more specifically, it makes three important contributions to the literature. First, it brings attention to the enormous costs associated with a commitment to maintaining health care markets, both in terms of financial costs and policy bandwidth. Second, it provides a clear-eyed examination of what individual choice can and cannot accomplish in a market-based health system. And finally, it acknowledges that relying on market-based solutions allows all of us to avoid the hard choices we know must be made in allocating scarce health care resources. Continue reading "The Costs of Market Allegiance in Health Care"
Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.
Reading Blackhawk’s article is itself a potent reminder of just how little of the legal history of Native Americans’ relationship to the U.S. government is taught in conventional constitutional law classes. Although the cases and practices she describes in many instances have deeply informed our modern constitutional understandings—of the treaty power, the war power, the plenary power doctrine, and others—most will be unfamiliar to those outside of the federal Indian law field. Unlike Dred Scott, Plessy, Brown, and others, no similar canon or anti-canon of federal Indian law cases forms a common vocabulary for our understanding of the Constitution’s basic principles.
As Blackhawk’s article makes clear, our neglect of the federal Indian law paradigm is not only a matter of erasing from public memory our nation’s brutal history of colonialism and the subordination of Native peoples (though it is that too). Rather, as Blackhawk puts it, “Scholars, practitioners, and courts draw…on paradigm cases and model examples in the stories we tell about the Constitution and how constitutional law works. It is through these stories that we convey and discuss questions of constitutional theory and that we build our constitutional canon and anti-canon.” (P. 1804.) Continue reading "Shifting the Paradigm: Power, Rights and Equality in Constitutional Law"
Professor Naomi Cahn undersells her recent Iowa Law Review article, Revisiting Revocation upon Divorce? (Revisiting Revocation), when she concludes it by saying that “this Article contributes to the ongoing conversations about the relationship between decedents’ intent, formality, and function in trusts and estates law.” (P. 1949.) While Revisiting Revocation surely makes the contribution that Cahn describes, it also does considerably more. In revisiting the increasingly common and expanding state rule that divorce revokes any transfers of probate (and sometimes non-probate) (P. 1887)) assets to a former spouse as well as to a former spouse’s family members, (P. 1886) Cahn contributes to the growing literature on the legal “spaces in between” two binaries in the areas of intimate and family life. Other scholars, including Cahn, have investigated the legal spaces in between (or outside of) the perceived extremes of marriage and non-marriage and of male and female. Here, Cahn devotes her attention instead to the legal space in between the perceived extremes of marriage and divorce. In so doing, Cahn sheds light on one of the lesser-known—but tremendously important—ways in which the law treats marriage as a relationship that differs in kind from other species of relationships and as an event that differs in kind from other life events.
The main subject of Revisiting Revocation is the rule that “a final divorce settlement or annulment of a marriage revokes all provisions in the will in favor of the former spouse.” (P. 1886.) Adopted “in almost all U.S. states,”((P. 1886) the revocation upon divorce rule has expanded over time, applying in some states today to probate as well as to nonprobate transfers and covering even “the ex-spouse’s family members.” (P. 1887.) The rule assumes that while I might like my sister-in-law enough to include her in my will while I am married to her sister, my testamentary benevolence vanishes upon divorce, which apparently severs all property ties between certain individuals that arise through marriage. (An interesting counter-example in this regard is incest law, which in some states continues to apply to affinity-based relationships even when the very reason for the incest prohibition—marriage—goes away through either divorce or death). While technically a rebuttable presumption, Cahn shows that the revocation upon divorce rule is “rarely rebutted” (P. 1891) in most states and “appears virtually irrebutable” (P. 1889) in some. She tells the story of Jesse and Virginia Lee Suiters, who were married for forty-one years (and separated pursuant to a separation agreement for the last ten of those years). (Pp. 1889-90.) Jesse Suiters died shortly after the couple divorced, and his will, which was drafted while Jesse and Virginia Lee were separated (and had been for seven years), devised his residuary estate to “Virginia Lee Suiters.”(P. 1889.) Nevertheless, because of the state’s revocation rule, a Maryland court declared that Virginia Lee was not an eligible beneficiary of Jesse’s residuary estate. (P. 1889.) Cahn tells similar stories where courts have applied their state revocation upon divorce rules in ways that “rendered the decedent’s intent irrelevant.” (P. 1890.) Continue reading "The Space In Between"
Iselin Gambert and Tobias Linné, Got Mylk?: The Disruptive Possibilities of Plant Milk
, 84 Brook. L. Rev.
__ (forthcoming 2019), available on SSRN
It’s time to consider whether the milk on our cereal or granola, or in our coffee or tea, is an agent of inequality. Gambert and Linné in their compelling article, Got Mylk?: The disruptive possibilities of plant milk, confront “Dairy Pride” and argue that it operates as a tool of oppression along several axes. They use multiple lenses of equality including capitalism, speciesism, sexism, and racism to analyze milk as reality and symbol.
Perhaps the most obvious equality lens they discuss is the capitalist one of big business and consumers. The so-called “Milk Wars” arise from a Food and Drug Administration (FDA) regulation that defines milk only as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” (P. 5.) This excludes all forms of plant milk that have been in use for centuries such as soymilk, coconut milk, and various forms of nut milk, as well as goat and sheep milk. The increasing popularity of plant-based milk has led to FDA warning letters and some lawsuits seeking to stop plant-based milk from using the term “milk.” The proposed DAIRY PRIDE Act (“Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese to Promote Regular Intake of Dairy Everyday” Act), broadens the definition of milk as derived from “hooved mammals,” but would mandate more severe restrictions on the use of the word “milk” in plant-based contexts. (P. 20.) Meanwhile, as Gambert and Linné explain, in Europe litigation over “post-milk” oat beverages such as the Swedish dairy industry suing the “Oatly” company, have perhaps made oat drinks more popular. The comparative United States and European discussions are a marked strength of the article. (P. 40.) Continue reading "Equality at Breakfast: Confronting the Patriarchal Whiteness of “Dairy Pride”"
A number of books and articles have taken aim at America’s mass incarceration debacle. Smart Decarceration, a multi-author edited volume, assumes that the tide has turned. As the editors point out in the first chapter, several states have begun depopulating their prisons, eliminating mandatory minima, and creating more alternatives to prison, a movement sometimes dubbed “Smart Sentencing.” Smart Decarceration is about the sequel. Authored by academics with degrees in criminology, sociology, history, public health and social work, as well as by leaders in community organization, practicing lawyers, pastors, and formerly incarcerated individuals, this book is devoted to picturing what optimal decarceration should look like.
The diverse perspectives provided in Smart Decarceration ensure a nuanced, multi-disciplinary treatment of that issue. But there is also an overriding agenda, perhaps best summarized by Kathryn Bocanegra in her chapter, when she states that “exclusively focusing on reducing prison populations without considering the sustainability of such an effort is potentially dangerous.” (P. 115.) Continue reading "The Next Steps in Criminal Justice Reform"
Stavros Gadinis and Amelia Miazad, The Hidden Power of Compliance
(Feb. 14, 2018), available at SSRN
In business and government, today, bureaucrat is a pejorative. Bureaucracy rather than being a mark of rationality is sneered at. Multi-disciplinary project teams, flat hierarchies and “intrapreneurship” are what corporate consultants prescribe. At least since Thatcher and Reagan, market mechanisms have been praised as superior to the civil service.
Yet, corporate legal regulation can only think in bureaucratic forms. In Europe, the GDPR requires a new C-suite member, the Chief Data Officer. In the U.S., executive, legislative and judicial actions, well described in this article, have resulted in “the explosive growth of compliance departments.” (P. 7.) In legal regulation, authority is vested at the top and liability at the top is thought to ensure compliance. As scandals occur because those at the top failed to confront problems, the law envisions new staffs being created so that the top of the bureaucracy can issue orders resolving the problems. Previous work has been skeptical of whether the development of compliance departments will lead to actual compliance. Gadinis and Miazad report on various law review articles in which “the harshest critics view compliance as a box-checking exercise, too formalistic.” (P. 2.) Others complain that those in the department won’t be able to “supervise their superiors.” (P. 2.) In other words, they will be inferior bureaucrats. Without being explicit about it, often using agency-cost theory, these law review articles apply the critique of bureaucracy so prevalent in our culture to criticize the organizational technique of compliance departments.
Gadinis and Miazad cut through these critiques and argue that the principal function of compliance departments is to put red flags in front of the board. One might quibble with this approach by emphasizing the educational function of compliance departments, improving how lower-level employees exercise their powers. But, in consonance with corporate law’s emphasis on power at the top, Gadinis and Miazad propose that whoever leads the compliance department (sometimes a Chief Legal Officer, but increasingly a Chief Compliance Officer) be in the C-suite and have clear lines of authority to communicate to the board. The threat of liability, they assume, will incentivize chief compliance officers to report to the board. Continue reading "Vice-Presidents in Charge of Going to Jail"
The new essay collection Shaped by the State: Toward a New Political History of the Twentieth Century, edited by Brent Cebul, Lily Geismer, and Mason B. Williams, makes a strong case for thinking about political history as deeply tied to broader strands in American history. The essays in the book describe the growth and evolution of the modern state in light of “long-standing structures and ideologies of markets and social power defined by race, gender, class, and hierarchies of citizenship.” (P. 8.) As the table of contents makes clear, regulation and the administrative state are key parts of this story of the modern state. Rachel Louise Moran’s contribution to the collection, Fears of a Nanny State: Centering Gender and Family in the Political History of Regulation, approaches regulatory history in this expansive way, unpacking the gendered nature of both regulation and resistance.
Moran takes as her topic efforts by the Federal Trade Commission (FTC) in the late 1970s to limit children’s exposure to junk food advertising on television. One might assume that the FTC’s attempts to prevent greedy corporations from using sugar to entice children would make regulators the heroes in a modern fairy tale. Moran describes how in 1977 the Center for Science in the Public Interest “dramatically sent 170 decayed teeth (and petitions signed by ten thousand health professionals) in a bag to the Federal Trade Commission, along with a request the FTC regulate the advertising of foods to children.” (P. 320.) Instead, however, the 1978 Children’s Advertising Rule investigation–soon known as “KidVid”–collided with concerns about an overstepping state voiced by industry opponents, media skeptics, and parents protective of their own authority. Continue reading "The Federal Trade Commission as National Nanny"
Uri Benoliel, The Impossibility Doctrine in Commercial Contracts: An Empirical Analysis
, __ Brooklyn L. Rev.
__ (forthcoming), available at SSRN
The use of theoretical economics to analyze legal rules faces a special challenge in contract law, particularly when applied to default rules rather than mandatory ones: it has to match up with what contracting parties are actually doing. One of the foundations of the economic analysis of contract law is that business parties ordinarily know what’s in their own best interests, so economic prescriptions about default, gap-filling rules are also ordinarily predictions: they are statements of what parties actually wanted but didn’t express or what they would have wanted if they had thought about a particular problem in advance.
Economic pronouncements about rules of contract law, therefore, are subject to a particular type of empirical verification unavailable in at least many other areas of law: we can simply look at what sophisticated business parties are doing and see if it matches up with what economists predict they will do. This is precisely what Uri Benoliel has been doing. And the result of his recent empirical study on the impossibility doctrine in contract law, The Impossibility Doctrine in Commercial Contracts: An Empirical Analysis, bears out Grant Gilmore’s famous observation in The Ages of American Law that “no historian, social scientist, or legal theorist has ever succeeded in predicting anything.” Continue reading "The Impossibility of Simple Models of Impossibility in Contract Law"
- Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Tex. L. Rev. ___ (forthcoming 2019), available at SSRN.
- Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. ___ (forthcoming 2019), available at SSRN.
The Supreme Court is broken, or so holds an emerging consensus. From the Senate’s refusal to consider Judge Merrick Garland’s 2016 nomination to the Court to the contentious 2018 confirmation of Justice Brett Kavanaugh to a string of 5-4 decisions in politically salient cases, many entailing overruling of long-standing precedent and dividing along the party of the appointing President. All suggest an institution facing deep questions of legitimacy. That apparent consensus yields numerous suggestions to reform, and thus save, the Court.
One idea gaining traction in academic and political circles, across the ideological spectrum, entails eliminating life tenure in favor of some form of 18-year term limits on the Justices. Structures, details, and implementation vary, but the common idea is that a Justice would serve as part of the active nine-member Court for 18 years and a new Justice would be appointed every two years. Supporters believe this will reduce the political intensity surrounding any appointment, eliminate the fortuity of how many appointments a President gets and when, remove the incentive to appoint ever-younger Justices, and perhaps remove the Court as a campaign issue. Two forthcoming papers question this emerging wisdom. Term Limits and Turmoil: Roe v. Wade’s Whiplash empirically exposes the doctrinal costs of term limits; How to Save the Supreme Court proposes alternatives that avoid those doctrinal costs. Continue reading "The Supreme Court is Broke, the Question is How to Fix It: Alternatives to Term Limits"
The September 2018 volume of the UCLA Law Review is a must-read page-turner (or its equivalent for the digital age) for followers of JOTWELL’s Administrative Law section. That volume collects the written essays originally delivered as talks at the Law Review’s symposium on The Safeguards of our Constitutional Republic, organized by UCLA Professor Jon Michaels, along with his colleagues Professors Kristin Eichensehr and Blake Emerson. As Michaels writes in his introductory essay for the volume, “The first two years of the Trump presidency have been marked by scandals, standoffs, travesties, and tragedies. Customs have been flouted, compacts broken, laws transgressed, responsibilities ignored, and individuals and communities threatened and debased.” In their contributions for the symposium, participants—distinguished public law scholars and civic institutional leaders from different corners of the nation—collectively “explored whether we are in a time of simple flux or full-blown crisis; whether any such crisis rises to the level of a constitutional—as opposed to just a political or cultural—dislocation; and how we can steer the ship of State back on course.”
While readers would be rewarded for perusing all of the essays, the one I want to focus on here is Mariano-Florentino Cuéllar’s essay, From Doctrine to Safeguards in American Constitutional Democracy, which he presented as the keynote address at the symposium. Justice Cuéllar (on the Supreme Court of California since 2015, and before that a member of the Stanford Law School faculty) soberly cautions “against facile rule-of-law optimism” about “the prominent role of courts in setting constitutional constraints on official power.” (P. 1400.) While Justice Cuéllar rightly does not name President Trump in the essay (in fact, he alludes to the “[d]ilemma” of “a judge seeking to thread the needle at a UCLA symposium when alluding to transgressions of norms by elected officials” (P. 1422)), the animating concern of the essay resonates closely with contemporary challenges in the administrative state and our republic more generally. Whether the legal question centers on arbitrary-and-capricious review, statutory authority, or constitutional permissibility, judicial review of the Trump administration’s actions is a daily occurrence, in ways both familiar and breathtaking. Continue reading "A Broad and Sobering View of Constitutional Safeguards"