Monthly Archives: November 2019
According to Columbus, the protagonist of Zombieland (2009), “enjoy the little things” is Rule #32 for surviving a zombie apocalypse. Professor Emily Kadens’ Cheating Pays explores the darker side of enjoying the little things against the backdrop of the 1622 trial of a London grocer, Francis Newton. Specifically, Professor Kadens argues that in the context of cheating by heavily networked commercial actors, it is the little things—small-scale but regular cheats in transactions with contracting partners—that pay off in the end. Small cheats are potentially more lucrative than large cheats because small cheats are unlikely to be discovered or may be discounted as mistakes even if discovered, the cheater can take steps to misdirect attacks on the cheater’s reputation, and contracting partners are unlikely to take significant measures to punish the small-scale cheater even after the cheats are discovered.
In this sordid tale of petty lies, betrayal, and revenge, the villain was not particularly glamorous nor interesting in terms of the scale of his misconduct. Francis Newton was a successful grocer who routinely cheated customers and suppliers by subtly altering the length of balance scale arms, substituting low quality goods in sales to buyers, changing tare weight markings on shipping containers, and secretly attaching extra weights to scale platforms. These cheats presented lighter weights on goods sold by suppliers and heavier weights on goods sold to customers. Newton apparently carried on this scheme of regular, small-scale cheats for at least a decade before rumors of his dishonesty began to spread. Although earlier cheats had been discovered by others, it was not publicly sanctioned until Newton’s enemies began a campaign to spread news of the cheats and ultimately bankrupted themselves bringing Newton to trial. Newton was found guilty of dishonest practices and forced to make a public apology and pay a £1000 fine. Nonetheless, Newton appears to have continued more-or-less successfully in business after that public punishment. Continue reading "Enjoy the Little Things"
What then-Professor Elena Kagan said in 2001 continues to hold true today: ours is an “era of presidential administration.” Modern-day presidents do not merely stand on the sidelines while agency officials run their agencies. Rather, from the Reagan Administration onward, presidents have wielded an increasingly heavy hand in dictating the course of their appointees’ day-to-day actions—monitoring, supervising, coordinating, and directing agency activities in accordance with their political and policymaking priorities. Agencies may remain the primary repositories of the powers that Congress has delegated away, but the agencies themselves have become subject to powerful forms of White House control.
As Lisa Marshall Manheim and Kathryn Watts note in this excellent new article, one of the ways in which presidents influence agency policymaking is through the issuance of orders, memoranda, proclamations, and other written directives. These documents communicate instructions from the president to a target agency, making clear to that agency’s officials that the President expects them to exercise their delegated powers in an often quite specifically defined way. More often than not, such instructions do not formally bind anyone to do anything. But when directed at officials who serve at the pleasure of the President, the demands of such “presidential orders” are seldom disregarded. Continue reading "Presidential Administration and Judicial Review"
Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals
, 118 Mich. L. Rev. __
(forthcoming 2020), available at SSRN
Among the hallmarks of our federal court system are judicial opinions. Federal judges do not just bang their gavels and declare a winner—their decisions are memorialized in published opinions that recount the facts of the case, lay out the relevant legal framework, grapple with the parties’ arguments, and explain why the law supports one side’s contentions over the other’s. These opinions are released not just to the parties, but to the public—allowing law students, legal commentators, and appellate courts alike to scrutinize and critique the court’s reasoning.
At least that is how it used to be. As Merritt McAlister highlights in “Downright Indifference,” the vast majority of federal cases today are decided in “unpublished opinions.” That term describes any opinion that a court deems nonprecedential. But the distinguishing feature of unpublished opinions is their brevity. Because these cases involve routine issues resolved by settled precedent, the theory goes, courts need not expend resources to issue reasoned opinions that respond to the parties’ arguments. Instead, unpublished opinions succinctly explain—often in just a few sentences—who won and who lost. Continue reading "Decision-Making in the Dark"
Jeffrey A. Pojanowski, Neoclassical Administrative Law
, 133 Harv. L. Rev.
__ (forthcoming 2019), available at SSRN
“It is hard to sketch a river while sailing midstream,” says Jeff Pojanowski, as he begins an article that does a remarkable job of doing just that. Pojanowski’s forthcoming article offers an illuminating taxonomy of a vast array of administrative law theory and scholarship concerning the question of judicial review of agency action, which he organizes into three overarching frameworks or models. After sketching the river with aplomb, Pojanowski introduces us to a fourth model—“neoclassical administrative law”—and explains what the neoclassical framework would offer that earlier models lack. There, the image that might come to mind is not so much gazing at a river, but staring at a refrigerator. It is hard to decide what to have for dinner while standing in front of the refrigerator. A buffet’s worth of pretty good leftovers is probably sitting right there—but sometimes, to really hit the spot, you just have to roll up your sleeves and make something new anyway.
Pojanowski begins by noting the well-known “cracks” in the “comfortable, overlapping consensus” (P.3) of administrative law, including from academics and from the Court. Conventional administrative law doctrine is “under fire for being both too timid and too intrusive.” (P. 4.) Something new seems needed—but before getting to that new framework, Pojanowski presents a detailed sketch of three extant models. Continue reading "Standing In Front of the Refrigerator"
Our understanding of work and workers is significantly enriched by immersive accounts of particular occupations and the people in them. Books like Studs Terkel’s Working, Barbara Ehrenreich’s Nickel and Dimed, and John Bowe’s Nobodies offer powerful narratives of day-to-day hopes, struggles, and indignities of workers in particular industries and milieu. The rhythms of the gig economy are unfamiliar to those in more traditional workplaces, and we are fortunate to have insightful new perspectives on these jobs: Alex Rosenblat on ride-sharing drivers; Karen Levy on truck drivers with electronic logging devices; and Casey Newton on social media content moderators. Add to this list perhaps the most mysterious, hidden form of new labor in our wired economy: the piecemeal “microwork” that facilitates online algorithmic processing.
In Ghost Work, anthropologist Mary Gray and computational social scientist Siddharth Suri—both researchers at Microsoft—have accomplished a deep dive into the world of these online crowdworkers. Although Gray and Suri at times include all sorts of platform workers within their definition, the true heart of the term “ghost work” applies to unseen AI support staffers who provide vital components of human judgment within an overall computational algorithm. As Ghost Work makes clear, key leaps in artificial intelligence capability have been possible only with an army of facilitators who make decisions such as what a camelback couch looks like, whether a face matches an ID picture, or how a slang term is used. Unlike the popular conception of indomitable machines churning through data unaided, most machine learning systems still incorporate significant human decision-making for the “last mile” of AI functionality. These are the people who make those decisions. Continue reading "Ghosts in the Shell"
Margherita Borella, Mariacristina De Nardi, and Fang Yang, Are Marriage-Related Taxes and Social Security Benefits Holding Back Female Labor Supply?
, NBER Working Paper No. 26097 (July 23, 2019), available at SSRN
There has been a surge in empirical literature examining gendered patterns of behavior and outcomes across numerous economic contexts, especially choices within and across families. Relatively little of it has focused explicitly on how the basic structure of our tax laws interacts with and influences such choices. Encouragingly, a recent working paper by Margherita Borella, Mariacristina De Nardi, and Fang Yang does exactly that.
Borella, De Nardi, and Yang (BD&Y) study two key policies within the U.S. tax-transfer system: joint income tax filing for married couples and access to Social Security benefits for spouses. The joint income tax filing rule means that a married secondary earner will owe income tax at the marginal rate established by “stacking” her income on her spouse’s income, which generally is a higher rate than would apply if the secondary earner was single. Social Security benefits also increase to account for an earner’s spouse, but do not increase to account for an earner’s unmarried partner. Continue reading "A Do-Over for the Tax Unit"
Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018).
Tort compensation is often said to be governed by the make-whole principle – damages should compensate the successful plaintiff for all the losses she suffered as a result of the tort. Even if there is such a principle, it seems to have exceptions. In Rationalising Recovery for Emotional Harm in Tort Law, Eric Descheemaeker focuses on an apparent exception that applies to suits for interferences with possessory rights. For example, in standard cases of conversion, the plaintiff is not entitled to recover compensation for emotional distress caused by the wrongful interference with her property rights. Examining English authorities, Descheemaeker offers a surprising result. Although courts purport to disallow distress damages in these cases, they actually do allow them. English tort law is more principled in hewing to the make-whole ideal than it appears to be.
Rationalising Recovery is not in the first instance concerned with the question of when emotional distress serves as a “predicate injury” – i.e., the injury that the defendant was duty-bound to avoid causing. Nor is it concerned with cases in which the plaintiff sues for having been made to suffer the sort of psychiatric injury that, under English law, is treated as a personal injury on par with a broken leg. Rather, it focuses on the availability of “parasitic” emotional distress damages – compensation for fear, horror, grief, anger, frustration, worry, or other negative emotions arising out of a distinct injury that grounds the victim’s tort claim. Continue reading "Compensating Distress With A Stiff Upper Lip"
For all the justifiable concern in recent years directed toward the prospect of autonomous weapons, other military uses of automation may be more imminent and more widespread. In Predicting Enemies, Ashley Deeks highlights how the U.S. military may deploy algorithms in armed conflicts to determine who should be detained and for how long, and who may be targeted. Part of the reason Deeks predicts these near-term uses of algorithms is that the military has models: algorithms and machine-learning applications currently used in the domestic criminal justice and policing contexts. The idea of such algorithms being employed as blueprints may cause heartburn. Their use domestically has prompted multiple lines of critique about, for example, biases in data and lack of transparency. Deeks recognizes those concerns and even intensifies them. She argues that concerns about the use of algorithms are exacerbated in the military context because of the “double black box”—“an ‘algorithmic black box’ inside what many in the public conceive of as the ‘operational black box’ of the military” (P. 1537)—that hampers oversight.
Predicting Enemies makes an important contribution by combining the identification of likely military uses of algorithms with trenchant critiques drawn from the same sphere as the algorithmic models themselves. Deeks is persuasive in her arguments about the problems associated with military deployment of algorithms, but she doesn’t rest there. She argues that the U.S. military should learn from the blowback it suffered after trying to maintain secrecy over post-9/11 operations, and instead pursue “strategic transparency” about its use of algorithms. (P. 1587.) Strategic transparency, as she envisions it, is an important and achievable step, though likely still insufficient to remedy all of the concerns with military deployment of algorithms. Continue reading "Military Algorithms and the Virtues of Transparency"
That the Constitution ensures that private property will not be taken by the government except for a public use and then only with just compensation is one of those principles learned in high school civics class. But, what is this “property” covered by the Fifth Amendment? It is not defined in the Constitution; rather the Supreme Court has stated that the term finds its contours and limits in state law, not under the federal constitution, and then only that which has been recognized and affirmed over the ages by custom, state statutes and judicial pronouncements.
Legal theorists often say that property is about the power of exclusion, by an “owner,” that is, one who holds “title,” as acquired through various established ways—voluntary transfer, inheritance, adverse possession. There are, to be sure, respected alternative theories recognizing property “rights” which are not necessarily founded on “ownership”—such as personhood and expectations and reliance on government benefits. In a recent article, Professor Yxta Maya Murray, describes a novel theory of property held by residents of Boyle Heights, a Los Angeles neighborhood, which she calls the “Boyle Heights property jurisprudence” that appears grounded in their collective experiences in the community. Continue reading "“Takings” from the Community"
Tracy A. Thomas, Leveling Down Gender Equality, 42 Harv. Women’s L.J. 177 (2019).
Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.” Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.
Morales-Santana was decided in the second year of the Trump administration and in the wake of its anti-immigration policy. Born in 1962 in the Dominican Republic to an unwed American citizen father of Puerto Rican origin and a Dominican Republic citizen mother, the plaintiff Luis Morales-Santana had lived in the United States since he was thirteen. The INA’s requirement of derivative citizenship for children born overseas to one American citizen parent in effect at Morales-Santana’s birth adopted a gender- and marital-status-based distinction by setting a longer physical presence requirement for citizen fathers and shorter physical presence requirement for unwed citizen mothers. Morales-Santana was not qualified for citizenship because his father had failed to meet the INA’s physical presence requirement for unwed fathers by a matter of days, and was to be deported as a non-citizen with several convictions. His father, however, would have satisfied, if female, the lesser stringent requirement for unwed citizen mothers to transfer derivative citizenship. Morales-Santana claimed that the INA’s gender-based distinction was a violation of gender equality, and requested that the rule for unwed citizen mothers be applied to him and that he be granted American citizenship. Continue reading "Equality for Whom? The Curious Case of RBG’s Equality and Morales-Santana’s Nationality"