Apr 11, 2014 Ann BartowTechnology Law
Something Rotten in the State of Legal Citation trumpets an important alarm for the entire legal profession, warning us that given current modes of citing websites in judicial cases create a very real risk that opinion-supporting citations by courts as important as the United States Supreme Court will disappear, making them inaccessible to future scholars. The authors of this important and disquieting article, Raizel Liebler and June Liebert, both have librarianship backgrounds, and they effectively leverage their expertise to explicate four core premises: Legal citations are important; web based legal citations can and do disappear without notice or reason; disappearing legal citations are particularly problematic in judicial opinions; and finally, to this reader’s vast relief, there are solutions to this problem, if only the appropriate entities would care enough to implement them.
Denoting the disappearing citation phenomenon with the vivid appellation “link rot,” Liebler and Liebert explain that the crucial ability to check and verify citations is badly compromised by link rot, and then demonstrate this with frankly shocking empirical evidence. According to their research: Continue reading "Empirical Link Rot And The Alarming Spectre Of Disappearing Law"
Apr 9, 2014 Nora EngstromTorts
Myungho Paik, Bernard Black, & David A. Hyman, The Receding Tide of Medical Malpractice Litigation: Part 1—National Trends, 10 J. Emp. Legal Stud. 612 (2013) available at SSRN.
Physicians continue to talk about the “Medical Liability Crisis” and physician-funded advocacy groups continue to push for additional and further-reaching liability-limiting reforms. Yet although the prize advocates seek (tort reform!) has remained the same for decades, the justification for why tort reform is needed has undergone a subtle metamorphosis. For a while, reformers argued that liability limits were needed because the problem of medical injury was grossly exaggerated—medical injury was a problem mostly ginned up by plaintiffs. But then, the Institute of Medicine’s (IOM’s) groundbreaking 1999 study, To Err is Human, came along. Estimating that between 44,000 and 98,000 Americans die in hospitals each year as a result of preventable medical errors, the IOM’s study took the wind out of that argument’s sails. Undaunted, reformers changed their tune. Tort reform was needed, reformers insisted, because, even if medical injury is all too real, medical liability is random, as decisions are untethered to the underlying merits of claims. In 2006, however, that argument encountered a major setback. David Studdert and co-authors published a groundbreaking study of 1,452 medical malpractice claims which convincingly debunked the litigation lottery story. Some claims that don’t involve errors are indeed filed, they found. But such claims do not typically result in payment. Undeterred, another reason to resist medical liability has taken center stage: the problem of defensive medicine.
Defensive medicine refers to instances when physicians, concerned about liability, test or treat despite the lack of medical necessity, as well as times physicians decline to provide particular services or accept certain individuals as patients for fear of liability. A prototypical example might be a doctor who orders a CT scan, not because he believes it’s medically warranted but because he believes it’s prudent in light of the liability risk. This behavior, some now say, imposes medical liability’s biggest cost. Though numbers are hard to pin down (as it’s hard to discern whether that CT scan was really ordered to protect the physician from liability, as opposed to helping the patient or, perhaps, even padding the physician’s paycheck), defensive medicine appears to be widespread. One recent survey found that 93% of physicians in high-risk specialties reported providing care that they thought was unnecessary. And, respected academics suggest its price tag is high—roughly $45.6 billion per year. Pointing to these statistics, some reason: (1) defensive medicine is a huge problem, and (2) in order to rein in defensive medicine, we need to dramatically reduce medical malpractice liability—or, perhaps, dismantle the present system of compensation for medical injury. That argument, in fact, appears to be gaining ground. Continue reading "“The Only Thing We Have To Fear Is Fear Itself”: How Physicians’ Exaggerated Conception Of Medical Malpractice Liability Has Become The Real Problem"
Apr 8, 2014 Diane RingTax Law
Why do certain ideas gain traction in policy debates? Regardless of one’s field of study, this question cannot be ignored. The challenge is where to look for answers. The 2013 article by political scientist Mai’a Davis Cross, Rethinking Epistemic Communities Twenty Years Later, is one new and relevant resource in this quest. For more than a decade international tax scholars have drawn on the work of international relations (IR) theory and scholarship. In part, this attention by the tax community was out of necessity. Although it was apparent that international tax policy was subject to and the product of the same basic forces animating the classic subjects of IR study (e.g., military, trade, and environmental policy) tax policy formation traditionally has received scant attention from this branch of political science research. Yet the ideas being developed in IR theory would prove important to a serious and sophisticated understanding of “international tax relations.” Thus, international tax scholars began looking across the divide of research fields to consider the value added from the IR theory work of political scientists such as Cross.
Rethinking Epistemic Communities emerges from one broad strand of IR theory, cognitivism, which explores how we know what we want, what we value, and what we seek. That is, even if much of international relations activity concerns the use of power and/or bargaining games to secure “desired” outcomes, how do countries and other key actors determine what they want? Certainly in some cases the parameters of what a country seeks to achieve may seem relatively clear, but in many others the outcome or at least its particular form, is less obvious. Under the broad umbrella of cognitivist theory, scholars devoted increased attention to the concept of “epistemic communities”– the idea of a “community of experts” who through their own internal standards might develop some measure of “consensus” on an issue. Because of the recognized special knowledge of this community, the consensus ultimately would be influential in shaping outcomes sought by decision. The prototypical epistemic community was a science “community” coalescing around a solution to a problem that would form the basis of international agreement among a number of states. But international tax policy seemed a fertile ground for exploring the potential influence of epistemic communities. Who is formulating ideas of successful or sensible international tax policy? When and how do they achieve credibility? Does the epistemic community model fit? Continue reading "The Influence of Experts"
Apr 4, 2014 Corey Rayburn YungCourts Law
What is the scope of precedent? It is a fundamental question in American law that has proven difficult to answer with precision. As courts, especially the Supreme Court, have increasingly crafted long, often rambling, opinions, it has become more difficult for other courts to interpret such judgments. Adam Steinman’s recent article, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, offers a key insight and valuable contribution toward explaining how courts should apply prior precedents to new facts.
The basic distinction Steinman draws in understanding stare decisis is between the rules stated by the precedent-setting court and the results reached by the precedent-setting court. In focusing on results (what Steinman terms “inferential stare decisis”), a court justifying its present judgment must reconcile its holding with the outcome of every precedential court opinion. Steinman, in contrast, argues that courts should not be obligated to conform their decisions with the results of prior binding opinions, but rather must follow the rule(s) articulated by the prior court. This approach decreases the constraining effect of prior decisions in one way, but increases their constraining effect in another. Future courts are less constrained in that they are not required to reconcile their decisions with the mere results of earlier ones. But they are more constrained in that, where the precedent-setting court has stated a rule, the future court cannot simply point to factual differences between the two cases and disregard the rule entirely. It would need to articulate a distinguishing rule that justifies a different result. Continue reading "Distinguished Precedents"
Apr 4, 2014 W. Bradley WendelLegal Profession
Every criminal defense lawyer has been asked The Question: “How can you defend those people?” Even lawyers who do not represent persons accused of crimes have undoubtedly had to deal with the indignation directed at the lawyers representing the most recent high-profile, presumed-guilty defendants—O.J. Simpson, the detainees at Guantánamo Bay, alleged “American Taliban” terrorist John Walker Lindh, the Oklahoma City federal building or Boston Marathon bombing suspects, the man accused of being the guard known as “Ivan the Terrible” at the Treblinka concentration camp. The Question is about moral agency. How can you, an ordinary person, not only associate with but also actively assist terrible people in escaping punishment for terrible crimes?
Abbe Smith and Monroe Freedman have both written eloquently in answer to The Question. Now they have compiled a number of essays—some in the form in which they were previously published, some updated for this book, and some entirely new—written by advocates and academics who take seriously the problem of giving an account for one’s actions within a professional role. All of the essays, in one way or another, address the persistence of moral agency. Inside a criminal defense lawyer there is an ordinary person, with ordinary-person values, committed to non-violence and respect for the rights of others. What is it like to be that person? In this way the essays move beyond justification to consider the issue of motivation. In a classic essay reprinted in this recent book, Barbara Babcock surveys a number of responses, including: Continue reading "Defending Defending, with Integrity"
Apr 2, 2014 Serena MayeriLegal History
Multiple paradoxes lie at the heart of Leigh Ann Wheeler’s How Sex Became a Civil Liberty: a constitutional doctrine of sexual privacy exists alongside a public culture saturated by sex; women and sexual minorities enjoy unprecedented rights and freedoms while pornography proliferates in plain sight and civil libertarian principles underwrite opposition to rape shield laws and hate speech codes. Meanwhile, liberals and conservatives alike speak in a common civil liberties idiom that embraces the individual’s right to access sexual material once considered an obvious and proper target of state regulation. As Wheeler’s engaging history of how the American Civil Liberties Union (ACLU) helped make sex a civil liberty reveals, commitments to sexual freedom and consumer rights grew out of the changing political and cultural milieu from which the organization emerged and drew its leaders.
Wheeler’s story begins in the early twentieth century with portraits of individual ACLU founders and leaders including Roger Baldwin, Crystal Eastman, and Madeleine Zabriskie Doty. She highlights how their sexual lives—more adventurous and avant-garde than previously understood—shaped their thinking and spawned a civil liberties vanguard. Wheeler’s account intriguingly suggests that men’s and women’s differing experiences of the “first sexual revolution”—relatively unmitigated liberation for men, a much more ambivalent legacy for women who continued to value fidelity and lived in fear of unwanted pregnancy—may have led them to see birth control as an essential liberty that could also help to bridge this gender gap. Continue reading "Sex and Civil Liberties"
Apr 1, 2014 Michael CedroneJurisprudence
Linda Edwards’ article is a thoughtful examination of the hidden and unexplored role of narrative in legal decisions. The article raises fundamental questions about the nature and boundaries of legal discourse and demonstrates that narrative theory and cognitive study can bridge the distance between what one may call ‘traditionalist legal analysis’ and its ‘oppositionist’ critique. The article is a delight. It joins an arresting image to an elegant argument, and it is beautifully written.
Edwards’ arresting image evokes an ancient, walled city. Life proceeds vibrantly inside the walls, where people deliberate and decide questions within a common cultural frame. Outside the walls, prophets shout toward the people, but their voices are lost in the vast plains. Occupants of the city occasionally lob verbal assaults—“Be quiet; stop whining; leave us alone”—but the city largely ignores the prophets. For Edwards, this metaphor captures the relationship between judges and traditionalist legal scholars and critical theorists. Continue reading "On Narrative, Legal Discourse, and Yaser Esam Hamdi"
Mar 31, 2014 Christopher SprigmanIntellectual Property Law
Paul Heald,
The Demand for Out-of-Print Works and Their (Un)Availability in Alternative Markets (2014), available at
SSRN.
Back in mid-2013, Paul Heald posted to SSRN a short paper that already has had far more impact than academic papers usually have on the public debate over copyright policy. That paper, How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs), employed a clever methodology to see whether copyright facilitates the continued availability and distribution of books and music. Encouraging the production of new works is, of course, copyright’s principal justification. But some have contended that copyright is also necessary to encourage continued exploitation and maintenance of older works. We find an example in the late Jack Valenti, who, as head of the Motion Picture Association of America, in 1995 made the argument before the Senate Judiciary Committee that it was necessary to extend the copyright term in part to provide continued incentives for the exploitation of older works. “A public domain work is an orphan,” Valenti testified. “No one is responsible for its life.” And of course if no one is responsible for keeping a creative work alive, it will, Valenti suggests, die.
Is that argument right? Enter Paul Heald. Heald’s 2013 article employs a set of clever methodologies to test whether copyright did, indeed, facilitate the continued availability of creative works—in Heald’s article, books and music. With respect to books, Heald constructed a random sample of 2300 books on Amazon, arranged them in groups according to the decade in which they were published, and counted them. Here are his findings: Continue reading "How Copyright Prevents Us From Getting the Books We Want"
Mar 28, 2014 David OrentlicherHealth Law
Bernard Black, José-Antonio Espín-Sánchez, Eric French & Kate Litvak, The Effect of Health Insurance on Near-Elderly Health and Mortality, Nw. L. & Econ. Research Paper Series, available at SSRN.
While advocates for the Affordable Care Act (ACA) assume it will improve the health of the uninsured, Bernard Black and co-authors observe that the link between health insurance and health is more tenuous than one may think. Partly because other factors have a bigger impact on health than does health care insurance and partly because the uninsured have always been able to rely on the health care safety net, we may see little improvement in the health of the previously uninsured from ACA.
In their study, Black et al., collected nationwide data on people who were age 50-61 in 1992. The authors looked at this “near-elderly” population because a beneficial effect of insurance would be most likely found in that group—younger people are healthier, and older people are covered by Medicare. The authors then looked at the study subjects’ access to health care and their health outcomes for the next 18 years. As expected, insured individuals used more health care resources than did uninsured people. However, there was no evidence that being insured lowered the risk of death 12-14 years into the study, and only mild evidence of a mortality benefit at 16-18 years. Continue reading "Do the Uninsured Become Healthier Once They Receive Health Care Coverage?"
Mar 26, 2014 Angela Onwuachi-WilligFamily Law
Few authors can bring cases and their meaning(s) alive like Professor Bennett Capers. Capers does not disappoint with his recent chapter The Crime of Loving: Loving, Lawrence, and Beyond. Capers provides a criminal law lens for family law scholars to further examine and understand the landmark decision, Loving v. Virginia. In Loving, the Supreme Court struck down Virginia statutes that criminally prohibited and punished marriage between Whites and non-Whites as violations of equal protection and due process. In reconsidering this landmark case through the lens of criminal law, Capers exposes the power of “white-letter law,” which “suggests societal and normative laws that stand side by side and often undergird black-letter law, but . . . [that] remain invisible to the naked eye.” (P. 120.) More so, Capers beautifully reveals how “Loving and Lawrence both serve as cautionary reminders of the long leash we have given to criminal law.” (P. 125.) He details the many ways in which criminal law has been used to regulate and shape many aspects of our personal and social lives. Noting such regulation has occurred through the use of “a whole host of victimless crimes,” such as adultery, gambling, pornography, and premarital sex, Capers joins scholars such as Melissa Murray in exposing the often-ignored manner in which criminal law is used to invade citizens’ privacy and enact a moral code upon behaviors that are not generally associated with criminality.
Capers begins his chapter with a compelling narrative that provides a vivid picture of Loving’s limited impact on towns such as his hometown of Charleston, South Carolina. Capers starts by comparing the “Charleston of [his] youth,” a place that “had only one interracial couple” with Richard and Mildred Loving’s hometown of Central Point, Virginia, a rare, integrated community in the South “in which [the Lovings] knew they could live as husband and wife . . . . a place where they would be welcome . . . . a place they could call home.” (Pp. 114, 118–19.) The difference, Capers explains, was not the black-letter law in the two locations; after all, interracial marriage was illegal in Virginia at the time the Lovings got married, but was legal in Charleston—and indeed, nationally—during his youth. Rather, the difference was in the white-letter law, the extralegal prohibitions “that reminded people of their place and reminds them still.” (P. 116.) As Capers makes clear, “Brown or no Brown, Loving or no Loving,” the Charleston of his youth and of today includes very few interracial families because “people kn[o]w their place.” (P. 116.) Indeed, Capers implies that a black-letter prohibition was unnecessary to maintain this status quo. He writes: Continue reading "Lots of Love for this Loving Analysis"
