Feb 4, 2019 Jessica Lind MantelHealth Law
Although federalism rhetoric has played a central role in debates over the Affordable Care Act (ACA), there has been little research on whether the ACA’s implementation reinforced or stymied federalism values, including state autonomy, cooperation, experimentation, and variation. Professors Abbe Gluck and Nicole Huberfeld fill this void in their article What is Federalism in Healthcare For?. Extrapolating from data on the implementation of ACA’s Medicaid expansion and health insurance exchanges, the authors challenge a longstanding assumption among federalism scholarship—that particular structural arrangements best serve federalism goals and values. They instead argue that federalism goals and values are not dependent on any particular architecture of state-federal separation or entanglement but find expression across a range of governance models.
Traditional theories of federalism view state power as derived from separation from the federal government, with federal authority negating state power. Modern federalism scholars characterize any state activity occurring within federal frameworks as subservient. Gluck and Huberfeld, however, find that the ACA’s implementation supports neither view. Instead, they argue that ACA implementation is a story of states exerting power that checked federal authority from within the statute, not from outside it. Furthermore, this dynamic has resulted in extensive policy variation and experimentation within the ACA’s national framework. Continue reading "Rethinking Federalism: ACA as a Case Study"
Feb 1, 2019 Ezra RosserLexPoverty Law
Andrew Hammond,
Pleading Poverty in Federal Court,
Yale L. J. (forthcoming). Available at
SSRN.
In United States v. Kras, the Court rejected the argument that a poor person petitioning for protection from creditors should not have to pay a filing fee in order to access the bankruptcy system. The majority held that an able-bodied person could make the payment because the $50 fee was only $1.92 per week if spread over six months and $1.28 if spread over nine months. Justice Blackburn noted that such a fee at the time was “less than the price of a movie and little more than the cost of a pack or two of cigarettes.” Justice Thurgood Marshall’s dissented, observing:
It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are….A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have….
For the poor, fees, even supposedly “nominal” fees, matter. In the civil law context, Congress has established a $350 filing fee to access the federal courts and the Judicial Conference tagged an additional $50 administrative fee onto that. (P. 12.) While the non-poor may be able to treat the combined $400 fee as a mere inconvenience, such an amount can serve to bar poor civil litigants from the federal courts.
Andrew Hammond’s article, Pleading Poverty in Federal Court, shows that there is considerable variation in how federal courts consider requests by the poor for fee waivers in civil litigation. Courts not only use different forms to collect ability-to-pay information but they also apply different standards when determining whether fees should be waived. By focusing attention on federal court in forma pauperis motion practices, Hammond’s article sheds light on how the poor can be negatively impacted by routine court practices that might ordinarily be treated as merely administrative. Hammond makes a convincing argument that federal courts should have uniform standards for what information is collected and for the level of need that is associated with a fee waiver. Blending empirical work—a significant contribution of the article is that it catalogues the in forma pauperis forms used by all 94 federal district courts—with an appreciation for the struggles faced by poor litigants, Pleading Poverty in Federal Court is a well-written, targeted intervention that hopefully will improve the ability of the poor to access the federal courts. Continue reading "Federal Courts and the Poor: Lack of Standards and Uniformity in Civil In Forma Pauperis Pleadings"
Jan 31, 2019 Angela FernandezLegal History
The rhetoric of a “marriage crisis” is a familiar one. William Kuby’s excellent new book gives us an incisive history of the way that a sense of crisis was invoked in debates about a variety of forms of marital misconduct and the backlash they inspired in the progressive era. Kuby expertly marches us through the way that late nineteenth and early twentieth-century American judges, state legislators, polemicists, and reformers of all stripes relied on ideas of common sense public policy and moral decency to police marriage in each of the five instances of marital misconduct he examines.
The first form of marital misconduct Kuby describes is the use of marital advertisements and state and church marriage bureaus that sought to match bachelors with single women. The latter were used in regions of the West to encourage the formation of stable family units (e.g. in Oklahoma to find wives for lonely farmers). The former, viewed as mercenary and inappropriately commercialized, were generally frowned upon by journalists and academics, such as sociologist and criminologist Arthur MacDonald who labelled the women who responded to them “abnormal.” Even though these advertisements often stated “objective marriage” and “no triflers” (see image on P. 26), they were strongly associated with indecent (and risky) sexual and moral behavior. Innovations in transportation and the wider circulation of newspapers created “new possibilities in courtship,” Kurby writes, “finding partners beyond one’s restricted geographical location – or outside one’s narrow class or racial designations.” (P. 67.) These “expanding geographic and demographic boundaries of mate selection” display what Kuby calls “a crucial feature of modern romance.” (P. 67.) Continue reading "The Marriage Crisis and its Many Backlashes in Twentieth-Century America"
Jan 30, 2019 James E. PfanderCourts Law
Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018).
Jeffrey Sutton has much to teach us about the role of courts, state and federal, in making constitutional law. Sutton, well-known for his work as a judge on the United States Court of Appeals for the Sixth Circuit, has drawn on years of experience and research in this book-length rumination on the way state courts (and constitutions) can contribute to constitutionalism more broadly. Sutton served for some years as the solicitor general of Ohio, and knows the joys and heart-breaks of state constitutionalism first hand. Indeed, among the many happy turns of phrase in the book, one finds Sutton (many years after the fact) wistfully pursuing motions to reconsider the adverse decisions that most set his teeth on edge.
Sutton approaches his task with a deep appreciation of modern constitutionalism and an eye and ear for storytelling keen enough to engage readers both learned and lay. In brief, Sutton, argues, we have mistakenly come to view federal or national constitutionalism as the only game in town and have slighted state constitutionalism as a source of rights. Sutton describes a world hungry for rights articulation and suggests that state courts might play a more active role in the process. Sutton encourages lawyers to mount more state constitutional challenges, thereby giving their clients an extra shot at success. He also encourages state courts to take their own constitutions more seriously, noting that these documents often contain provisions missing from their national counterpart. Continue reading "Enhancing the Role of States in Making Constitutional Law"
Jan 29, 2019 Anna GelpernCorporate Law
Usha Rodrigues’s article on the firm as a nexus of “smart” contracts made me think of Mary Shelley’s Frankenstein. Maybe it is her use of “contracts made flesh,” the images of digital organisms mimicking their “corporeal” prototypes (creepy, if confusing), or the all-encompassing, oozing smartness of code. Victor Frankenstein was smart. He endowed his creature with formidable capacity to learn: within days, it had processed Goethe, Plutarch, and Milton. Then Victor freaked out and lost control.
Shelley’s story reads by turns as Don’t-Mess-with-Creation and Don’t-Abandon-Your-Children. I saw abandonment everywhere in Law and the Blockchain. Continue reading "Abandoned at the Nexus of Contracts"
Jan 28, 2019 Kathryn WattsAdministrative Law
Kent H. Barnett,
Some Kind of Hearing Officer, 94
Wash. L. Rev. __ (forthcoming 2019), available at
SSRN.
When Congress enacted the Administrative Procedure Act (APA) in 1946, it expected that what we now call Administrative Law Judges (ALJs) would preside over most federal agency evidentiary hearings. Over time, however, the number of so-called “non-ALJ” adjudicators has ballooned. As a result, non-ALJ adjudicators vastly outnumber ALJs today by a ratio of about 5:1. Yet despite the prominent role currently played by non-ALJs, very little is known about them. In a forthcoming article titled Some Kind of Hearing Officer, Professor Kent Barnett seeks to change that.
Professor Barnett’s article does three important things. First, it begins by describing how existing due process jurisprudence has little to say about impartiality in the adjudicatory arena, leaving the task of designing optimal process largely in Congress’s hands. When Congress enacted the APA in 1946, it spelled out a fairly detailed scheme to promote impartiality in the context of formal adjudicatory hearings conducted by ALJs. For example, the APA makes clear that ALJs cannot engage in prosecutorial or investigative functions. In addition, the APA generally prohibits ALJs from engaging in ex parte communications. Yet when it comes to non-ALJs, Congress did not set forth similar constraints. The end result, as Professor Barnett points out, is that Congress effectively has delegated the task of determining optimal process in informal adjudications—and, more specifically, ensuring the impartiality of adjudicators—to individual agencies. And, as one might imagine, agencies have come up with all sorts of different ways of approaching the issue of impartiality in informal adjudications. Continue reading "Uncovering the Hidden Administrative Judiciary"
Jan 25, 2019 Matt BodieWork Law
Naomi R. Sunshine, Employees as Price-Takers, 22 Lewis & Clark L. Rev. 105 (2018).
In Employees as Price-Takers, Naomi Sunshine defines employees as workers who lack “significant input into the prices charged to customers and their own pay rates.” (P. 110.) Sunshine’s proposal comes amidst a blizzard of articles, court cases, tribunal opinions, legal briefs, and white papers all examining this critical issue. It stands out amidst the snow drifts because of its simplicity, and because it provides a creative and intuitive insight. Her price-setting definition of employment has the potential to reorient current debates around this new metric.
There are several competing definitions of “employee,” and Sunshine carefully surveys the landscape. She discusses the dominant “control” test with its different variations, as well as the “economic realities” test, the “entrepreneurial opportunities” test, and the relatively new “ABC” test used in California and elsewhere. She illustrates these tests with the example of an HVAC worker as the paradigmatic independent contractor and examines how the test would categorize such a worker. Sunshine’s quiet unpacking of the entrepreneurial opportunities test is particularly deft, as she works her way down to the test’s foundational focus on the opportunity for profit or loss. She shows how the test renders the most vulnerable workers even more vulnerable, as it leaves them bereft of employment protections even when the potential for profits is merely illusory. Continue reading "Who Names the Price?"
Jan 24, 2019 Daniel BarnhizerContracts
Antonia Eliason,
Lillian McMurry and the Blues Contracts of Trumpet Records, 87
Miss. L.J. 279 (2018), available at
SSRN.
Professor Eliason’s Lillian McMurry and the Blues Contracts of Trumpet Records combines some of my favorite things—contract law, legal history, and Mississippi blues. Through the article, Eliason weaves a narrative of a compelling female protagonist, Lillian McMurry, who founded, operated, and finally closed the Trumpet Records (“Trumpet”) label in 1950s Jackson, Mississippi. This article provides a fantastic historical snapshot of the music industry at the time of itinerant blues artists who created the musical backbone of rock ‘n roll.
My interest in music industry contracting was sparked by Judge Jerome Frank’s dissent in M. Whitmark & Sons v. Fred Fisher Music Co. The majority opinion is relatively straightforward in upholding an artist’s assignment of contingent copyright renewal rights that would mature twenty-two years in the future. In contrast, Judge Frank in dissent exhibited remarkable judicial hubris (as well as, perhaps, the dark side of Legal Realist judging) in attempting to refuse specific enforcement of the original contract on fairness grounds. Specifically, Judge Frank would have substituted his own biased view of the relationship between artists and publishers: Continue reading "Singing the Blues in Contract Law"
Jan 23, 2019 Anthony SebokTorts
Kenneth S. Abraham & Leslie Kendrick,
There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No. 2018-59, available at
SSRN.
When it comes to inherited scholarly categories and taxonomies, a prominent strand of modern American tort scholarship pursues a particular kind of deflationary agenda. The First and Second Restatements divided the law of negligence into sub-rules distinguished by spurious differences (for example, the section on “type of negligent acts” distinguished between “Use of Incompetent or Defective Instrumentalities” and “Want of Preparation”). The Third Restatement combined many rules that could be brought under a more general description – the laundry list of types of negligent acts has been radically pruned, leaving just a handful, such as “negligent failure to warn”.
Because the mission of the Restatement is to organize concepts latent in the common law, it is understandable that subsequent generations of reporters will see common themes between categories that were overlooked by their predecessors (and it is also possible that the law itself might evolve over time towards fewer principles as courts eliminate ad hoc categories). But reducing the number of rules, or principles, in the common law is not an unalloyed good. Debates still rage over whether the Restatement has, for all intents and purposes, removed duty as an element of the prima facie case in negligence in most cases of personal injury or property damage, and if it has, whether that move was salutary. Last year I reviewed for Jotwell an article by Prof. Stephen Sugarman calling for the merger of battery – an intentional tort – into negligence.
And now comes a proposal from Professors Ken Abraham and Leslie Kendrick to merge Chapters 3 and 7 of the Third Restatement, so that, instead of two general categories of duty in connection to physical harm, there will be just one rule of negligence for risk creation and there would be no need for a rule concerning affirmative duties. I will review Abraham and Kendrick’s arguments for the merger, suggest a few criticisms of their arguments, and conclude by evaluating the costs and benefits of pursuing yet another round of doctrinal deflation. Continue reading "Is Less Really More? Abraham and Kendrick on Getting Rid of Affirmative Duties"
Jan 22, 2019 Michael MadisonTechnology Law
Kristen E. Eichensehr,
Digital Switzerlands, 167
U. Pa. L. Rev. ___ (forthcoming 2019), available at
SSRN.
Battles over the public policy obligations and implications of late 20th-century and early 21st-century technologies have long been fought via metaphor as well as via megabyte and microeconomics. Today, modern information technology platforms are characterized brightly as “generative” and darkly as “information feudalism.” Public policy might be informed by treating some network providers as “information fiduciaries.” Or, borrowing the phrase that prompts Kristen Eichensehr’s thought-provoking paper, tech companies might be characterized as metaphorical “digital Switzerlands.” They might be neutral institutions in their dealings with national governments.
In Professor Eichenbehr’s telling, the idea of a corporate digital Switzerland resisting government aggression—refusing to cooperate with government requests for private user information, for example—comes from a recent suggestion to that effect by Brad Smith, president of Microsoft. As she notes briefly, it’s an old idea, not a new one, even if it has migrated from corporation-vs-corporation conflict to state-vs-corporation power dynamics. Ken Auletta’s history of Google reported that back in 2005, Google CEO Eric Schmidt characterized Google’s search engine and advertising platform as a neutral “digital Switzerland” in its treatment of content companies and advertisers. Schmidt was defending the idea that Google had no agenda vis-à-vis incumbent entertainment industry players. Google’s technology produced accurate data about consumer viewing practices. If that data led advertisers to pay less for their ad buys, that wasn’t Google’s intent—or its responsibility. Schmidt’s listener, the then-president of Viacom, erupted in protest: “You’re fucking with the magic!”
Indeed. The reader should take many lessons from Eichensehr’s article. Foremost among them is this: Wandering into the digital Switzerlands of contemporary technology, whether because Microsoft (in its obvious self-interest) says that’s how we should do things or because that’s an objectively useful place to begin, is fucking with the magic—that is, the mythos that guides how scholars and policymakers think about technology purveyors and their civic roles and responsibilities. Continue reading "Fucking With the Magic"
