Abbe R. Gluck, Ashley Hall, & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis
, 46(2) Journal of Law, Medicine & Ethics
351–366 (2018), available on SSRN
Susan Sontag documented how illness becomes metaphor, wrapped in “punitive or sentimental fantasies.” The bubonic plague is no longer a mere disease but an instrument of wrath and moral judgment on the failings of a community. A popular mythology morphed tuberculosis into a romanticized episode afflicting the reckless, poor, sensual consumed by their repressed passions. Cancer turns into the disease of the capitalistic affluent; AIDS becomes a social category to punishing deviance. In these cultural myths disease expresses and causes character and thus contains moral judgment. Disease becomes shameful, a stigma to hide and wrap in guilt. Sontag argued that such myths can survive irrefutable human experience and medical knowledge. Treating illness as metaphor is obviously dangerous and misguided. Sontag calls on us to de-mystify illness and become resistant to metaphoric thinking.
The illness of our time is the opioid epidemic. We are in the process of characterizing and metaphorizing it. Litigation plays an important role in this process. As the debate about (oh what to call it?) non-party/national/universal/cosmic/high-volume/prospective-repetition injunctions has reminded us, to give something a name is to classify it and with that classification comes conceptual and normative baggage. Opioid litigation similarly continues to be part of a definitional battle. Is this about an epidemic, crisis, loss of moral fiber, white middle-class decline, crime-wave, plague, or something else? Litigation and procedural vehicles lean on these different conceptions and, in turn, shape how we view that thing out there in the world.
I was reminded of the problem of categorization and Sontag’s account when reading Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis. The article is an excellent primer on the role of courts in “impos[ing] blame–and with it, enduring responsibility” for the harm caused by the opioid epidemic. Continue reading "A Primer on Opioid-Epidemic Litigation"
Ofer Eldar & Andrew Verstein, The Enduring Distinction between Business Entities and Security Interests
, 92 S. Cal. L. Rev.
__ (forthcoming 2019), available at SSRN
While business entities have existed for centuries, their essential nature and forms of utility remain contested matters today. Over recent years, the asset partitioning theory of business entities has become highly influential, yet even for those inclined to accept it, fundamental questions remain unresolved. As Ofer Eldar and Andrew Verstein observe in the paper cited above, security interests likewise function to partition assets for the benefit of particular creditors, yet we lack a nuanced account of when one approach might be preferable to the other. In their paper, Eldar and Verstein develop a compelling foundation for such an account, analyzing these differing modes of asset partitioning and providing a fresh perspective on legal and market dynamics prompting financial innovations that, at least at first glance, appear to “blur the distinction between security interests and entities.”
Eldar and Verstein argue that, while business entities and security interests alike possess capacity to order creditors’ claims in a manner unachievable through contracts, a critical distinction remains. Whereas business entities create a “floating” priority scheme in the sense that an entity “can always update it to undermine the priority of existing creditors by pledging the assets to additional creditors,” security interests create a “fixed” priority scheme favoring “the first perfected secured interest over other claims in the assets.” This, they conclude, is why both forms of asset partitioning persist. “Security interests and entities coexist in the world and in particular structures because they offer different and irreplaceable priority schemes for creditors.” Continue reading "Asset Partitioning and Financial Innovation"
Innovation policy—a relatively new phrase for an old set of top-down competitiveness approaches (e.g. “industrial policy,” “science policy,” “research policy,” and “technology policy”)—is necessarily a combination of centralized investment, structure of private-sector incentives, and public policy priorities.This combination has always been unwieldy, multivariate, and politically charged. As a result, constituencies favoring one or other approaches (e.g. longer patent protection, more funding of public universities and research infrastructure, tariff or non-tariff import measures) have lacked a unifying framework through which to analyze shared problems.
In Innovation Policy Pluralism, Daniel J. Hemel and Lisa Larrimore Ouellette provide that framework. With a focus on intellectual property law, Hemel and Ouellette take the universe of innovation instruments—patents, prizes, grants, tax credits, purchase leverage, public licensing and other alternatives—and create a coherent method by which to assess and value them. Dissecting these options into “innovation incentives” and “allocation mechanisms,” Hemel and Ouellette urge policy-makers to consider alternatives under which these incentives and mechanisms may be matched, mixed, or layered. Continue reading "Does TRIPS Stop International IP Free-Riders?"
I am on alert for tax law changes as I teach Federal Income Tax this semester for the first time since the passage of the 2017 tax act. They seem to appear out of nowhere, rather than as part of a predictable pattern. What can explain seemingly disconnected provisions, scattered throughout the Code and enacted without an explicit policy explanation?
Linda Sugin takes on this question in The Social Meaning of the Tax Cuts and Jobs Act, published in 2018 at the Yale Law Journal Forum. Her critical perspective makes an effort to divine the worldview embedded in the TCJA based on the content of the enacted law. Sugin’s engineering effort shows the following “American priorities and values revealed by the TCJA:
- The traditional family is best;
- Individuals have greater entitlement to their capital than to their labor;
- People are autonomous individuals;
- Charity is for the rich; and
- Physical things are important.” (P. 404.)
Sugin reviews dozens of provisions to support her arguments. A sampling follows to offer a sense of her argument. Continue reading "Morality and the 2017 Tax Act"
Amy Semet, An Empirical Examination of Agency Statutory Interpretation
, 103 Minn. L. Rev. __
(forthcoming 2019), available at SSRN
Inspired by Lisa Bressman and Abbe Gluck’s pioneering empirical study on how congressional staffers approach drafting statutes, I spent months in 2013 surveying federal agency rule drafters on how they interpret statutes and draft regulations. Among its many methodological limitations, my study focused exclusively on agency rulemaking. Agencies, of course, interpret statutes in a variety of other regulatory contexts, including adjudication, enforcement, guidance, permitting, and monitoring—just to name a few. Indeed, it’s fair to say that most agency statutory interpretation takes place outside of the rulemaking context.
Thanks to an exciting new voice in administrative law, we now have some more light shining into this black box of agency statutory interpretation. In An Empirical Examination of Agency Statutory Interpretation, Amy Semet turns her attention to agency adjudication and, in particular, how the multi-member National Labor Relations Board (NLRB) approaches statutory interpretation. To conduct this empirical assessment, Semet reviews more than 7,000 cases that the NLRB heard over two dozen years (1993-2016) and three presidential administrations (Clinton, Bush 43, and Obama). This study provides a treasure trove of insights into agency statutory interpretation. Here are a few of the highlights: Continue reading "Looking Inside Multi-Member Agency Statutory Interpretation"
Class actions remain a work in progress in many jurisdictions around the globe. Several amendments to Federal Rule 23 took effect on December 1, 2018, after more than four years of deliberation by the Advisory Committee on Civil Rules. The Ontario Law Reform Commission is in the final stages of an eighteen-month comprehensive review of class actions, the first in the class action statute’s history in that province. Likewise, the Australian Law Reform Commission recently submitted its report to the Attorney General recommending amendments to its class action procedure, while the Victorian Law Reform Commission’s report on Litigation Funding and Group Proceedings was tabled in the Victorian Parliament in June 2018. Efforts at legislative reform in the United States, however, have stalled. No doubt to the considerable relief of the plaintiff bar, sweeping changes to class action procedure introduced by a Republican Congress in the Fairness in Class Action Litigation Act of 2017 (FICALA) will not come to pass, as the bill failed to advance in the Senate prior to the end of the previous Congress and Democratic control of the House of Representatives in the new Congress.
Still, the appetite for reforming class actions remains, not least among corporate interests eager to capitalize on legislative efforts to cut regulations and curb litigation. Anticipating that reform efforts will continue and FICALA will reappear in reincarnated form, Howard Erichson usefully dissects the proposed amendments in Searching for Salvageable Ideas in FICALA, one of six papers published as part of a symposium at Fordham Law School entitled “Civil Litigation Reform in the Trump Era: Threats and Opportunities.” FICALA represents “the most aggressive attempt in recent memory to dismantle the apparatus of mass litigation through procedural reform.” Introduced less than three weeks after President Trump took office and passed by the House along party lines, FICALA appears to be less about improving judicial efficiency or updating an outmoded procedure than a “defendant-driven effort to reduce liability exposure by making it difficult for plaintiffs to aggregate claims.” While most of the bill has little to commend itself to Erichson and other class action experts, a few proposals have the potential to improve the litigation process. In his essay, Erichson discusses the irredeemable and the salvageable ideas in the reform bill, both in convincing fashion. Continue reading "In Praise of Non-Partisan Law Reform of Class Actions"
Sam Erman ends his new book Almost Citizens by describing Puerto Rico as “the oldest colony in the world” (P. 161). This word, colony, might strike some as an overstatement, for the United States is never supposed to have had colonies. Others might offer up “protectorate” or other alternate terms to capture Puerto Rico’s constitutional ambiguity as something less than that of a state—none of which would be any less descriptively coherent than the island’s technical designation as “an unincorporated territory.” Erman ends his long-awaited monograph with this statement exactly because his careful and compassionate history takes direct aim at the legal ambiguity that has denied Puerto Ricans their full equality as American citizens. Erman’s story of American empire makes plain that conceptual or doctrinal equivocation has never altered the substantive reality that Puerto Ricans still live today with the very real legacy of American colonialism.
There is an underlying tone of moral indignation and loss in Almost Citizens that is all too easy to appreciate today. In the recent aftermath of Hurricane Maria, it is quite evident that many are still comfortable with Puerto Rican’s liminal status in our constitutional system, and happy to engage in a victim-blaming denial of their full inclusion as Americans. Erman’s monograph shows how Puerto Rico’s ambiguous status persisted alongside grand American claims to the promotion of democracy worldwide. It argues further that by sustaining this dissonance, the Supreme Court lessened constitutional citizenship for all Americans. Erman repeatedly shows how what he calls the “Reconstruction Constitution” of the post-civil War was “sacrificed…on the altar of empire” (P. 21). To decouple the presumption that territory and citizenship were co-terminus, the Court necessarily hollowed out the American franchise as it was extended to some at home and denied to others abroad. Continue reading "Living Under Imperial Constitutional Law in Puerto Rico"
Say what you will about sports metaphors in legal writing, but Professor Mark Tushnet’s “constitutional hardball” descriptor has proven remarkably useful in capturing one of the most vexing political dynamics of our time: the political parties’ resort to “claims and practice…that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with…the ‘go without saying’ assumptions that underpin working systems of constitutional government.”
Recent examples of such practices abound. A short list might include efforts by lame-duck Republican legislators in several states to strip state executive offices of power before newly elected Democratic governors take office; the abandonment of the filibuster and embrace of nomination holds in judicial appointments; and refusals to raise the national debt ceiling in disputes over broader legislative priorities. In these terms, Democrats’ refusal to support the President’s call for wall funding is not hardball (for opposition party opposition to a presidential initiative breaches no norm); Republican refusal to allow a vote to fund any government operations unless Democrats agree to wall funding is hardball to a tee (so to speak) (for it breaches the norm of passing at the least continuing resolutions to allow government to function until compromise over particular agenda items can be reached).
After grappling with how we might best understand this behavior (from either side) as more or less destructive of our separation-of-powers scheme in his article Self-Help and the Separation of Powers, Professor David Pozen, here joined by Professor Joseph Fishkin, now takes on the daunting task of describing how such hardball tactics have been deployed in practice. Their primary findings: both parties play hardball, but Republicans do it more often than Democrats, and the reasons for this flow from the differing institutional incentives and ideological commitments of the parties. Whether one agrees with this assessment or not—and Fishkin and Pozen have generated multiple responses already—the piece will be necessary reading for those who are interested in understanding the phenomenon or in developing strategies to manage it. Continue reading "Asymmetric Normalcy"
Ronen Avraham & Anthony Sebok, An Empirical Investigation of Third Party Consumer Litigant Funding
, 104 Cornell L. Rev.
__ (forthcoming), available at SSRN
Contracting parties often suffer from information problems, lack of expertise, and limited cognitive abilities. They sometimes make decisions under stressful conditions. There are always others happy to exploit these phenomena to make extra profits. One sphere in which such exploitation has attracted much attention since time immemorial is usurious interest rates. In their fascinating empirical study, Ronen Avraham and Anthony Sebok shed new light on this phenomenon in an expanding new market for credit—namely, Litigants Third-Party Funding (LTPF). These are nonrecourse loans, given by commercial firms to individual tort plaintiffs, which are then repaid from the proceeds of the lawsuit.
Avraham and Sebok obtained a unique dataset of about 200,000 plaintiffs’ applications for loans handled by one of the largest firms that engages in such funding. The dataset comprised both approved and refused applications. Among other things, it included the personal details of each applicant; the name of the attorney representing him or her; a description of the case; the amount sued for; medical and insurance reports on the accident; an independent legal assessment of the lawsuit’s likelihood of success and potential value; and information about existing liens on the award that the plaintiff might receive. With regard to approved applications, the dataset included also the amount funded; the monthly interest rate; the length of the legal proceedings; the amount owed when the case was resolved; and the amount actually repaid. (Pp. 6–7.) Continue reading "Drowning in a Bucket: Nonrecourse Loans for Litigants"
Tristin Green and Angela Onwuachi-Willig are interested in the act of narration, and the power that lies in the choice to include or exclude. Green explores these themes in her recent essay, Was Sexual Harassment Law a Mistake? The Stories We Tell. As Green recounts, the U.S. Supreme Court recognized hostile work environment as an actionable form of sex discrimination in Meritor Savings Bank v. Vinson. In doing so, the Court seemed to reject the prior view of such harassment as mere “‘personal’ advances of a man toward the singular woman to which he is attracted,” and to adopt a structural view, recognizing that “others in the organization and the organizational structure itself [can be] causes of ongoing hostile environments.”
However, Green excavates the Meritor record, as well as the records of four other major Supreme Court decisions on sexual and racial harassment, and uncovers substantial evidence of structural problems in those workplaces that the Court excluded from its factual recitations and legal reasoning. She finds the stories of the plaintiffs’ co-workers who were also harassed, but whose testimony barely figured in the Court’s telling, and evidence that men other than the individuals accused participated in the same or separate acts of harassment. She also notes the unacknowledged role of the organization in each of these stories. Many of the workplaces she examined were highly segregated by sex, with “leaders . . . [who] did little to nothing to learn about the culture or behaviors in their workplaces,” and in fact exacerbated cultural and structural problems by failing “to change things about which they were aware.” Continue reading "How to Tell Other Sexual Harassment Stories"