Why Does Constitutional Amendment Design Matter?

After an unprecedented social crisis, Chile is seeking constitutional change. This decision is quite extraordinary: though the Constitution contemplates amendment rules, Chileans have decided to create a new mechanism for approving constitutional change. The Chilean constitution was written during a military regime, and despite its many reforms, its legitimacy is sometimes questioned. Of course, its amendment rules are questioned as well. Nevertheless, this new procedure aims to respect the rule of law: Congress must first approve a reform of the amendment rules to allow constitutional change by means not previously established. After that, the process contemplates two referendums and an election. If this process fails to result in approval of the new Constitution, then the current one will remain in force.

This process raises many questions. For instance, if we have rules to change and amend our Constitution, why did we decide not to follow them? And if we agree to change the Constitution, what should the design of the new amendment rules be? What are the relevant principles, criteria, and institutions? In this scenario, Richard Albert’s book, Constitutional Amendments, provides valuable input. Continue reading "Why Does Constitutional Amendment Design Matter?"

Plagiarize This Jot

Brian L. Frye, Plagiarize This Paper, IDEA: The IP Law Review (forthcoming 2020), available at SSRN.

Oscar Wilde: “That was an awfully good joke you made last night. I wish I could say it was mine.

James Whistler: “You will my boy. You will.”

Melvin Helitzer: One day Milton Berle and Henny Youngman were listening to Joey Bishop tell a particularly funny gag. “Gee, I wish I said that,” Berle whispered. “Don’t worry, Milton, [said Henny,] you will.”

Plagiarism is not a crime, or even a cause of action. But it is the “academic equivalent of the mark of Cain,” a curse that cannot be undone. Even an unsubstantiated accusation leaves an indelible stain, and a credible complaint cannot be countered. A plagiarist is an academic pariah, a transgressor of the highest law of the profession, the embodiment of the “great deceiver,” who leads everyone astray. Anything else can be forgiven, for the sake of the scholarship. Plagiarism tarnishes the scholarship itself, and leaves it forever suspect. If the purpose of scholarship is dowsing for truth, then the plagiarist is a liar who poisons the well from which everyone draws.

This is a jot recommending Brian Frye’s short, lively, and incisive article about plagiarism, Plagiarize This Paper. And, fittingly, everything you’ve read before this paragraph I’ve plagiarized from Brian’s work.1

Or have I? Continue reading "Plagiarize This Jot"

In Praise of Hassles: Why “Rationing through Inconvenience” May Be More Ethical than Other Mechanisms for Allocating Care

Nir Eyal, Paul L. Romain, & Christopher Robertson, Can Rationing through Inconvenience Be Ethical? 48 Hastings Ctr. Rep. 10 (2018), available at SSRN.

An unfortunate reality of all healthcare systems is that, left unchecked, demand for medical services will inevitably outpace available supply. On the one hand, there will almost always be one more intervention that might, at least in theory, improve a patient’s condition or avert a future harm. On the other hand, in a society with multiple urgent priorities—education, poverty reduction, and national defense to name just a few—devoting all available resources to health care is neither possible nor desirable. Moreover, some healthcare resources are finite in an absolute sense; for example, there are simply not enough transplantable organs for everyone in need.

In light of this conundrum, no matter how much the public tends to bristle at the concept of “rationing,” setting limits on access to health care is ultimately unavoidable. In a few situations, limit-setting mechanisms are explicit and transparent; examples include the national system for allocating transplantable organs, or insurers’ use of formularies to limit the cost of prescription drug coverage. Often, however, healthcare rationing occurs implicitly, with limited public scrutiny. Examples of implicit rationing include governmental decisions about which healthcare services to fund, or a healthcare professional’s judgment about whether to prescribe a particular drug or refer a patient to a hospital. Continue reading "In Praise of Hassles: Why “Rationing through Inconvenience” May Be More Ethical than Other Mechanisms for Allocating Care"

Procedural Law, the Supreme Court, and the Erosion of Private Rights Enforcement

Stephen B. Burbank & Sean Farhang, Rights and Retrenchment in the Trump Era, 87 Fordham L. Rev. 37 (2018).

A slow, insidious creep of procedural law has been systematically eroding the private rights enforcement regime. For years, many of us proceduralists have sounded a clarion call over this unrelenting, incremental attack on private enforcement of substantive rights. Rights and Retrenchment in the Trump Era by Stephen Burbank and Sean Farhang unpacks this troubling phenomenon and offers us a cogent way for understanding how we got here. Burbank and Farhang do an excellent job of unearthing the history and future prospects of this entrenchment, illuminating through archival research, data, and theory how various institutions have taken a swipe at private enforcement.

The authors explore how Congress, the federal court rulemakers, and the Supreme Court have strategically sought to undermine substantive law, with varied success. Burbank and Farhang ultimately conclude that the Supreme Court is the winner in rights retrenchment—the most successful player in the counterrevolution against federal litigation vis-à-vis the other branches of government—for reasons of competency, opportunity and lack of democratic accountability. In pinpointing the Court as the victor, Burbank and Farhang focus our attention and effort toward resurrecting precious substantive rights in jeopardy. Their work is not only critical to understanding the problem, but represents an important step toward designing prescriptive measures. For those of us invested in protecting the rule of law—whether it be civil rights, environmental protection, consumer safety, or immigration policy—this article is essential reading for understanding the complexity, dynamism, and relentless way in which process (shrouded in neutrality and legalese) can quietly undercut democracy and more fundamentally humanity. Continue reading "Procedural Law, the Supreme Court, and the Erosion of Private Rights Enforcement"

The Power of Default: Path Dependence in the Drafting of Commercial Contracts

Julian Nyarko, Stickiness and Incomplete Contracts (Sept 1, 2019), available at SSRN.

According to prevailing conceptions, the primary role of contract law is to give effect to the parties’ will (the so-called will theory of contract), thereby enhancing overall human welfare (the standard law and economics perspective). Thus, the law may legitimately intervene in the content of contracts, or otherwise try to influence the contracting process and its outcomes, only if there is some flaw in the contracting process (such as duress) or if there is a market failure (such as a monopoly or an acute information problem). In recent years, the notion of market failure has been extended to encompass behavioral market failures as well—that is, deviations from the assumption that people are invariably rational maximizers of their own utility. However, it is still commonly believed that the need for compulsory (mandatory rules) or choice-preserving interventions (nudges) is limited to transactions with relatively weak and unsophisticated parties—such as consumers, employees, and tenants. When it comes to commercial transactions in competitive markets, the very fact that a contract does or does not contain a given term is perceived as a proof that that term (or its absence) is optimal—that is, maximizes the joint surplus of the parties. Otherwise, why would sophisticated parties include (or fail to include) that term in the contract? In fact, some scholars have grounded an entire theory of contract law on such strong belief in the rationality and competence of commercial contracting parties (Schwartz & Scott).

Until recently, people’s beliefs about these issues were primarily based on anecdotal evidence, personal experience, and ideological inclinations. With the advancement of empirical legal research, observational and experimental studies offer more reliable and systematic evidence about such matters (which does not mean, of course, that ideology ceases to play a role, as people often do not allow themselves to be confused by the facts). In his intriguing new research, Julian Nyarko uses cutting-edge methods of machine learning to study the inclusion or non-inclusion of choice-of-forum clauses in hundreds of thousands of contracts contained in a dataset of commercial agreements reported to the U.S. Securities and Exchange Commission (SEC). He then examines what factors might explain the inclusion or non-inclusion of such clauses in any agreement. Continue reading "The Power of Default: Path Dependence in the Drafting of Commercial Contracts"

Tragedy Unremarked: Empty Spots in Human Connection and Law

In Sand and Blood: America’s Stealth War on the Mexico Border, John Carlos Frey shows the reader a story about life, death, and a void in the reach of law to human need. Frey tells of a government-orchestrated disaster, shocking but unseen, that has been under way at the Southern border for decades. As a journalist of Mexican origin and paternally derived U.S. citizenship, Frey delivers a vivid and partly personal account of the human tragedy purposefully and soundlessly inflicted on poor Hispanic arrivals—a tragedy that should sear a vivid image of horror into our collective memory. For many years, Americans have known of the grudging welcome extended to our Southern neighbors but little of the corresponding human consequences. The result has been a void in both cultural awareness and legal doctrine. Over time, a public theater of immigration control, balancing the needs of politicians, business interests, and law enforcement, has shunted aspiring immigrants into a dystopia, planned by bureaucrats but given effect and form by human desperation, avarice, and menace.

Pursuing the human drama in the void, Frey paid smugglers working in Mexico for the Sinaloa cartel to take him on a trip through the Mexican desert to the U.S. border. He depicts a brutal ride in a van packed with men, without seating. The cartel business model Frey experienced responds to a market opening created by a blank place in our American conception of legal order (P. 103.) The cartels run “sophisticated operation[s] capable of monitoring U.S. law enforcement activity to ensure that migrants crossed the border successfully.” (P. 108.) Frey’s guide, as they neared the border, used “binoculars, what appeared to be a satellite phone, and a cell phone…[for] communicating with someone who knew the whereabouts of Border Patrol agents on the U.S. side.” Frey endured a gun in his face by a cartel member charged with assuring he had not captured images of cartel members. “If they had [found images], I’m sure they would’ve killed me on the spot.” The cartel members are unemotional about their business, in contrast to those border patrol agents who have adopted emotional views of the quarry. The exception in the business model pitting emotional border agents against pure business logic is the expectable corruption—agents who take bribes to look away as guides move migrants into the U.S. (P. 104.) Everyone—almost everyone—gets a little something from the unwritten rules. Continue reading "Tragedy Unremarked: Empty Spots in Human Connection and Law"

When Agencies Sue Each Other

Bijal Shah, Executive (Agency) Administration, 72 Stan. L. Rev. __ (forthcoming), available at SSRN.

Independent agencies are subject to a host of interesting academic debates, including debates that go to the heart of what makes an agency independent and which agencies qualify. Most of those debates focus, however, on the relationship between independent agencies and the President. Some of them explore the relationship between independent agencies and the public, the courts, or Congress. But the horizontal examination of the relationship between independent agencies and executive agencies has gone under-examined.

In a meticulous accounting, Professor Bijal Shah documents one fascinating aspect of that relationship in her forthcoming article, Executive (Agency) Administration. There, she focuses on litigation brought by the Justice Department (DOJ) on behalf of executive agencies against independent agencies. This litigation dynamic is unusual, but as she shows, not unheard of; her painstaking gathering of all such cases since 1900 yielded about 175 cases. What is more, these cases are incredibly illuminating. The vast majority fall into one of three categories. First, when an independent agency adjudicates a matter against an executing agency as a party—typically labor-related—these cases serve as the means for judicial review. Second, when independent agencies assert power that interferes with executive agencies’ own authority, lawsuits serve to protect executive agencies’ purview. And third, there is a smaller category of cases where DOJ has challenged independent agency decisions to approve certain antitrust matters. Continue reading "When Agencies Sue Each Other"

Jotwell Winter Break 2019

Jotwell will be taking a short Winter break. Jotting should resume on Monday, Jan 7, 2020.

Happy Holidays! Thank you for reading, and for your support.

Jotwell carries no advertising, so we would very much appreciate if you could make a small holiday donation. The University of Miami School of Law is Jotwell’s host and main supporter, but having tangible signs that our readers value us is important. Even a few dollars can matter a great deal.

Thanks! 

How Does Law School Matter in the Pursuit of Public Interest Careers?

The conventional wisdom has long been that law school, especially at the elite level, is a hostile place for students aspiring to pursue public interest careers—those whose professional goal is to serve a larger social cause, not just individual clients. The concept of public interest “drift,” coined by Robert Granfield in his seminal study of Harvard Law School students in the early 1990s, held that students who started on the public interest path dropped off in substantial numbers due to a range of law school factors. Key among them was the ideological transformation that occurred during the 1L year: when students were subtly taught to abandon their moral commitments in favor of a hired-gun professional ethos. Duncan Kennedy’s classic polemic, Legal Education and the Reproduction of Hierarchy, provided a nonempirical vision of this same phenomenon, identifying the pedagogical mechanisms through which 1Ls were asked to submit to a “double surrender” to the infantilizing 1L classroom experience of deference to the professor and to a more profound nihilism: that there is no right or wrong, only arguments to be made.

In a powerful new empirical analysis, From Idealists to Hired Guns? An Empirical Analysis of “Public Interest Drift” in Law School, John Bliss upends this conventional wisdom by showing how 1L public interest identity is more ill-defined and pliable than often thought and by placing more emphasis on the 2L hiring cycle than the 1L classroom experience as the crucible of assimilation. Methodologically, Bliss selects a different empirical design than previous “drift” research. Instead of using surveys to assess attitudinal change, he followed over 50 elite law school students during the first two years of law school: using interviews, ethnographic observations, and identity mapping (a technique in which he asked students to graphically depict the centrality of different identities to their sense of professional self). (P. 1990.) In addition to deploying a different methodology, Bliss also looked at the law school timeline through a different lens, assessing attitudinal change during the first two years of law school and focusing particular attention on the 2L summer hiring process. Four facets of his analysis stand out. Continue reading "How Does Law School Matter in the Pursuit of Public Interest Careers?"

I Pity The Fool: Ori Herstein’s Defense of the Klutz

Ori J. Herstein, Nobody’s Perfect: Moral Responsibility in Negligence, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No.1 (Feb. 2019), Pp. 109-125.

The sad story of Menlove, the defendant in the English case Vaughn v. Menlove is well known to all first-year torts students. Menlove was born, according to his lawyer, with the “misfortune of not possessing the highest order of intelligence,” and, as a result did something quite imprudent with flammable material that no person of average or typical intelligence (or judgment) would have done, resulting in a fire that damaged the plaintiff, his neighbor.

Menlove’s defense on appeal was that he had acted “to the best of his judgment,” and it was unfair to call him a wrongdoer, given that he had acted prudently, given the cognitive and behavioral handicaps under which he operated. Of course, his defense was rejected and, as Holmes said memorably in The Common Law, while “the courts of Heaven” might forgive Menlove, the common law courts would not, since “his neighbors . . . require him . . . to come up to their standard,” not his. This is what is now known as the reasonable person standard, which holds that negligence in the law is measured against an objective standard of care under the relevant circumstances. Continue reading "I Pity The Fool: Ori Herstein’s Defense of the Klutz"

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