Monthly Archives: March 2020
Jeremy Waldron, Rule by Law: A Much Maligned Preposition
, available at SSRN.
As Jeremy Waldron well states in his article, Rule by Law: A Much Maligned Preposition, “there are lots of tough questions surrounding this one little phrase–‘the rule of law.’” (P. 2.) There is indeed a lot of controversy surrounding this political ideal, this little phrase. And this controversy gets a lot more complicated when we change a little preposition in this little phrase and start to distinguish between the rule of law and the rule by law: the first, taken as a synonym of legality; the latter, a caricature of it. Waldron seeks to discuss it all, and to show that maybe the rule by law is a lot more demanding than it seems to be.
First, though, some definitions. Although it is impossible to arrive at a canonical definition, it is also safe to assume, for analytical purposes, that the rule of law is—contested as it might be, and broadly understood—one of the many values in (liberal) political morality, according to which people shall be governed by clear, stable, general norms; “a situation in which the government is subject to legal limitation and constraint.” (P. 18.) Contrasted to that, some take the rule by law to be a degraded version of this ideal; as Waldron states: “the use of law as a tool or instrument to serve the ends of power in an authoritarian regime.” (P. 3.) But is that warranted? Continue reading "Are The Rule of Law and the Rule by Law Really That Different?"
A general consensus has formed that the status quo approach to the current refugee crisis isn’t working, even if there is little agreement on an alternative. UC San Diego sociologist David Scott FitzGerald’s excellent new book, Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers, is the latest academic press book by a social scientist (following, for example, Alexander Betts and Paul Collier’s Refuge) to explain what’s wrong with the global institutional framework for refugees and to propose a better way.
Over eleven chapters, FitzGerald presents a trove of evidence showing how many Western states use law and policy to deter (or simply shut out) would-be asylum seekers. These legal policies creatively flout the spirit of international law, even as they walk a fine line between formal compliance and violation. FitzGerald argues that, whatever their legality under international or domestic law, these non-entrée policies, what he calls remote controls, violate principles of humanitarianism. He therefore argues that civil society—including NGOs, journalists, lawyers, academics, and other citizens—should mobilize to end them. Refuge Beyond Reach is an important contribution to the ongoing conversation about how the existing global international and domestic framework is addressing (and is perhaps responsible for) the current crisis. Continue reading "Remote Controls: Pushing the Boundaries of Asylum"
Enrico Moretti, The Effect of High-Tech Clusters on the Productivity of Top Inventors
, NBER Working Paper No. 26270 (Sept. 2019), available at NBER
Why do inventors increasingly locate near each other in metropolitan technology hubs like the Bay Area, Seattle, or Boston, despite the high costs of living in these areas? Just ten cities accounted for a remarkable 70% of computer science inventors in 2007. A leading view has been that “agglomeration economies” make researchers inside these innovation clusters more productive, although measuring this effect is difficult. In his new working paper, economist Enrico Moretti examines the location of U.S. patent inventors over time to estimate just how large these productivity gains are: If inventors were distributed uniformly across the United States, Moretti estimates that their overall patenting rate would decline by 11%.
I like this paper (lots) not because the result is counterintuitive—quite the opposite. Rather, in a field with so many barriers to real empirical progress, it is worth celebrating work that attempts to rigorously understand what factors actually affect innovation. And Moretti’s work on the geography of innovation has important lessons for law and policy scholars, including about the importance of looking outside IP for evidence-based innovation policies and the complex connection between innovation and growing wage inequality. Continue reading "The Productivity Gains of Innovation Clusters"
Were I to describe Rachel Louise Snyder’s new book – No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us – in three words they would be: comprehensive, concrete, and captivating.
No Visible Bruises offers a truly comprehensive exploration of the problem of domestic violence and our socio-legal responses to it. The book is framed around key stories and insights from victims and perpetrators, law enforcement, and academics and advocates who have worked to reform social and legal responses to intimate partner violence. The book convincingly demonstrates the systemic nature of the problem in part because it is so comprehensive in its assessment of the issue. Snyder draws connections between the pervasive and silent character of domestic violence and the economy, education systems, social stigma, sexism and intergenerational abuse. Using specific examples like family justice centers, multidisciplinary high risk response teams, batterer intervention programs, police protocols, researchers and fatality review teams No Visible Bruises canvasses the past several decades of reform to socio-legal responses to domestic violence. Snyder traces the history of the movement to reform how law enforcement, social workers and courts address domestic violence and examines how these efforts take shape today. Continue reading "Communication, Knowledge Sharing and Danger Assessments: Key Factors in the Prevention of Domestic Violence Fatalities"
Mark A. Lemley, Lisa Larrimore Ouellette, and Rachel Sachs, The Medicare Innovation Subsidy
, N.Y.U. L. Rev. (forthcoming 2020), available at SSRN
Over the past few decades, policymakers have used Medicare reimbursement policy to achieve wide-ranging changes in the health care system. Recent efforts have focused on using the levers of Medicare payments to encourage innovation in providers’ organizational structures and health care delivery. In their forthcoming article The Medicare Innovation Subsidy, Lemley, Ouellette, and Sachs consider another type of innovation influenced by Medicare reimbursement – innovation in the pharmaceutical market.
Both the Trump Administration and members of Congress have put forth various proposals to address high prescription drug costs in the Medicare program. In addition, some Democrats have advanced health reform proposals that would broaden insurance coverage for prescription drugs and lower patients’ out-of-pocket drug spending. While debates over these proposals have largely focused on the policy goals of lowering prescription drug costs and increasing access, Lemley et al. argue that attention also should be given to how these proposals impact incentives for developing new drugs. Specifically, the authors argue that health insurance coverage changes market demand for prescription drugs, thereby impacting drug manufacturers’ profits and their financial incentives to innovate. Continue reading "Medicare Reimbursement for Prescription Drugs: An Overlooked Policy Lever for Innovation"
Administrative law commentary often fixates on the White House—specifically, on presidential directives to agencies. Presidents, however, often wield more control by picking agency leaders, as David Barron smartly pointed out over a decade ago. In the years since, while legal scholars have paid considerable attention to judicial picks, they have largely neglected agency appointees. Ryan Scoville’s Unqualified Ambassadors provides a deeply needed look at the people selected to lead our embassies abroad. Recently, we have seen how confirmed ambassadors can take on critical roles beyond their embassies: President Trump named the confirmed ambassador to Germany, Richard Grenell, acting Director of National Intelligence last month.
Scoville compiled (and has made freely available online) an astounding amount of information on close to 2000 ambassadorial nominees to sovereign countries from 1980 to 2018. These ambassadors serve both as diplomats and as CEOs of U.S. efforts in a particular country. Despite considerable presidential control in this area, Scoville argues that these leaders “remain as vital contributors to a successful foreign policy.” He obtained some information from the Obama Administration, which, starting in 2014, publicly provided “certificates of demonstrated competency” for each ambassadorial nominee. (Congress then codified the practice.) For the remaining 34 years of data, Scoville turned to FOIA requests. He is the rare scholar who has sued to get needed information for his article. Continue reading "The Surface State"
Diego A. Zambrano, Discovery as Regulation
, 118 Mich. L. Rev.
___ (forthcoming 2020), available at SSRN
Discovery is an instrument of litigation. It is thus unsurprising that most of the scholarship about discovery is itself instrumental–how to make it better or how to explain why it is not so bad. As Diego Zambrano argues in his forthcoming article, however, focusing on such questions misses the larger opportunity to interrogate the foundational purposes of discovery and to use these principles to shape the rules and practices of discovery. Zambrano’s article is a pathbreaking investigation of discovery as a process and an end in itself, rather than as a means to the “fairness-accuracy-settlement” model in which the “right” discovery rules match a commentator’s particular view about the values and purposes of litigation.
Zambrano uses private enforcement actions as his vehicle for taking a fresh look at the theories and principles behind discovery. Private enforcement lawsuits are those in which “Congress deliberately employs private litigants as the main method of statutory enforcement.” This allows him to work with the decades of research and arguments about the private lawsuits as key means of enforcing public law regimes. Once we accept that lawsuits are a form of regulation, it seems quaint to limit discussions of discovery to the relative burdens and merits that discovery serves within a lawsuit. Rather, discovery is an independent regulatory tool, albeit a tool housed within private civil litigation rather than in a public administrative or regulatory body. Zambrano’s insight ties these arguments to specific regulatory mechanisms that can be replicated in or adapted to discovery—namely, the subpoena power of many administrative agencies. He argues that “[w]hether discovery costs are too high should depend less on a case’s amount in controversy and more on whether the case generates proportional regulatory benefits and fewer costs than a comparable agency investigation.” Continue reading "Discovery and the Limits of Transsubstantivity"
As a reminder, from Wikipedia: “The Sandy Hook Elementary School shooting occurred on December 14, 2012, in Newtown, Connecticut, United States, when 20-year-old Adam Lanza shot and killed 26 people, including 20 children between six and seven years old, and six adult staff members. Lanza committed suicide by shooting himself in the head. The incident remains the deadliest mass shooting at either a primary or secondary school in U.S. history. The shooting prompted renewed debate about gun control in the United States, including proposals to make the background-check system universal and for new federal and state gun legislation banning the sale and manufacture of certain types of semi-automatic firearms and magazines with capacity for more than ten rounds of ammunition.”
Although Congress passed no new federal laws, several of the strongest gun-control states did pass new ones. This is what prompted Professor James Jacobs and Zoe Fuhr to ask what could be achieved by the passage of New York’s 2013 SAFE (Secure Ammunition and Firearms Enforcement) Act, which, according to New York Governor Andrew Cuomo, is “the toughest gun control law in the nation.” The book traces—in a very lively way—how the SAFE Act was drafted, passed, and signed in thirty days without any compromises. It then analyzes what each of the dozen of the Act’s initiatives achieved. These initiatives include universal background checks, tighter bans on assault weapons and ammunition feeders (magazines), mandatory reporting requirements for mental health professionals who encounter patients who present substantial risks of violence, gun license forfeiture for persons subject to domestic violence restraining orders, license renewal every five years, and numerous criminal offense and sentence enhancements for regulatory violations and gun crimes. Continue reading "Why Does Gun Control Work in Europe?"
Sarath Sanga, On the Origins of the Market for Corporate Law
, available at SSRN.
Professor Sarath Sanga’s paper titled On the Origins of the Market of the Corporate Law is a thought provoking challenge to popular beliefs concerning the origins of the market for corporate law and state charter competition, that is: (1) Supreme Court jurisprudence helped create a national market for corporate charters; and (2) Delaware became a market leader only because New Jersey (the initial leader) repealed its liberal corporate laws in 1913.
Instead, the paper contends that these two popular claims are wrong. It offers an alternative explanation: organic industrial expansion and interstate commerce led to the emergence of the market for corporate law and that New Jersey declined as a market leader due, in part, to other states copying its laws. Continue reading "History Lessons: Explaining the Origins of Corporate Charter Competition"
Gregory Klass, Boilerplate and Party Intent, 82 Law & Contemp. Probs. no. 4, 2019, at 105.
In Boilerplate and Party Intent, just out in Law and Contemporary Problems, Greg Klass unearths the following lovely piece of boilerplate from an insurance contract:
“Touching the Adventures and Perils which we the Assurers are contented to bear and do take upon us in this Voyage, they are, of the Seas, Men-of-War, Fire, Enemies, Pirates, Roverts, Thieves, Jettisons, Letters of Mart and Counter-mart, Suprisals, Takings at Sea, Arrests, Restraints and Detainments of all Kings, Princes, and People…”
Roverts! Counter-marts! Oh my. As Klass observes, this sort of clause is an example of non-negotiable boilerplate, which propagates in part because no one would dream of altering such hoary text. But it is also an exemplar of a type of contractual clause that is interpreted without regard to the parties’ intent, even if what particular signatories wanted “Suprisals” to mean could be ascertained. Continue reading "Pirates, Roverts, Thieves and Boilerplate"