Sep 26, 2024 Amy MonahanHealth Law
The Affordable Care Act (the “ACA”) has had a somewhat tortured existence since its enactment in 2010. In The Ghosts of the Affordable Care Act, Professor Gabriel Scheffler tells the compelling story of the various ways in which this massive piece of social legislation has been scaled back or repealed by either Congress or the courts, and begins to offer an explanation of why the legislation was vulnerable to such attacks. More specifically, the article takes on the conventional wisdom that social programs, once enacted, are incredibly difficult to dismantle—a phenomenon commonly referred to as entrenchment. In place of this traditional story, the article makes the case for “enactment-entrenchment tradeoffs.” Professor Scheffler argues that, at least in the case of the ACA, lawmakers were forced to make the law more vulnerable to future amendment or repeal in order to ensure its passage. The article not only produces a compelling historical account of the ACA’s travails, but also offers important lessons for anyone interested in social policy change through the federal legislative process.
The article begins by cataloging the various post-enactment repeals and retrenchments of the ACA’s original terms. Some of these are well known, such as the Supreme Court decision in NFIB v. Sebelius, which made the Medicaid expansion optional for states. But others have received much less attention outside of health policy circles—such as the repeal of the Cadillac Tax and the Independent Payment Advisory Board. Some lived such a short and inconsequential life that even health policy scholars are likely to have forgotten they were ever included in the first place (I am looking at you, CLASS Act). Seeing these changes catalogued in a single place presents a compelling picture of just how much the ACA has changed between 2010 and the present day. Continue reading "A Postmortem on the ACA"
Sep 25, 2024 Catherine SmithFamily Law
Toni Morrison’s Nobel Prize winning novel, The Bluest Eye, and Maia Kobabe’s Gender Queer: A Memoir, topped the list of the 2022-2023 school year’s banned books. Certain groups of parents invoke their rights to restrict their children’s access to viewpoints different from their own about history, race, gender identity, and reproductive health. Anne Dailey’s important article, In Loco Reipublicae, provides a different take: parents should have a constitutional duty to their children to expose them to ideas outside the home to prepare them for democratic citizenship.
In a salute to children’s rights, In Loco Reipublicae claims a new middle ground in a constitutional framework that has far too long abdicated to parents a “unique and near-absolute custodial authority for children’s citizenship rights.” (P. 428.) According to Professor Dailey, an expansive parental rights doctrine limits young people’s exercise of their own rights because it fails to recognize that parents have constitutional duties to their children. The article turns to children’s well-established First Amendment right to exposure to the “marketplace of ideas” as an opening salvo and a means to illustrate what could be a paradigm-shifting parental obligation to steward children on the path to becoming independent rights-holders. (P. 426.) Continue reading "In Loco Reipublicae and the Parental Duty to Expose Children to Ideas Outside the Home"
Sep 24, 2024 Elizabeth ChamblissLegal Profession
It is an exciting time for access to justice and access to justice research. Jurisdictions around the country are experimenting with new models for expanding access to legal assistance by training nonlawyer advocates and advisors to provide limited legal services in areas of high unmet need. Such models range from for-profit programs for specially trained paralegals to not-for-profit community-based programs using a variety of staffing models. Research on such programs is growing and becoming more organized, rigorous, and impactful. Finally, after decades of resistance to new categories of providers, regulators are beginning to pay attention to evidence about the limits of the lawyer-only model and possible benefits of expansion.
The question now is, how are these programs working? And what should be the criteria for assessment? How might we move beyond case-by-case, after-the-fact program assessment based on the number of intakes and outcomes and incidents of demonstrable harm, toward a more robust, comparative framework for research? Two new articles tackle these questions by proposing specific evaluative criteria, measurement strategies, and sources of data to guide researchers and policymakers in program evaluation and design. Continue reading "Evidence-Based Innovation: Criteria for Evaluating Lay Legal Assistance Programs"
Sep 23, 2024 Jennifer ChaconCriminal Law
Recent scholarship raises important questions about the rights of children in schools, about the links between schools and punitive government systems, and about how the distributive choices around education impose systemic, racialized harm. With their article The Law of Disposable Children: Interrogations in Schools, Tonja Jacobi and Riley Clafton take this conversation deep into the realm of criminal procedure, opening a window into harmful practices in school-based interrogations. The authors reveal just how vulnerable students are to coercive interrogation tactics when they are in schools and how little protection the law provides them.
The article begins with an overview of the generally impoverished state of Miranda protections, explaining the many ways the Court has limited scope of those protections in the years since the case was decided. It also contains a discussion of the Court’s recognition of the need for special protections for young people in J.D.B. v. North Carolina, the 2011 decision holding that the age of the person subject to government interrogation is a relevant factor in determining whether an individual was in custody and therefore entitled to Miranda’s protections. The authors’ discussion acknowledges the many ways that existing constitutional doctrine offers insufficient protections against coercive interrogations, especially for young people. They note that “[n]ot only is there is no Supreme Court precedent laying out any special protections for schoolchildren to protect them from coercive interrogations—as opposed to custody—there has never even been an explicit ruling by the Court detailing what standards govern the interrogations of schoolchildren or whether they are even afforded the constitutionally required minimum protections of Miranda in the school context.” Continue reading "Asking Questions"
Sep 20, 2024 Allan ErbsenCourts Law
Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Austin Peters, & Aaron Schaffer-Neitz,
Secrecy by Stipulation, 74
Duke L.J. __ (forthcoming, 2024), available at
SSRN (April 29, 2024).
Stipulated motions can be more troubling than they seem. The cooperation that leads to stipulations is a beguiling reprieve from the combativeness of litigation. Parties constantly file contested motions raising vexing questions that require judges to pick winners and losers. In contrast, stipulated motions appear simple and enable win-win outcomes. Busy judges might be tempted to grant these stipulated motions without much thought. Minimal scrutiny is tolerable if an order truly is win-win for everyone who the order affects. But if the order has collateral consequences, then a win for the parties can impose a troubling loss on the public. Rulemakers recognize that private and public interests do not always align and craft procedures to manage the incongruity. For example, Federal Rule of Civil Procedure 26(c)(1) requires judges to police self-interested parties seeking protective orders. Even if the parties agree that information obtained though discovery should remain private, judges must find “good cause” before shielding information from the public. The rule gives judges discretion to protect trade secrets and personal data while enabling disclosure of threats to public health and safety.
Secrecy by Stipulation reveals that the “good cause” requirement often fails to prevent dubious protective orders. When parties stipulate that secrecy will facilitate discovery, courts are reluctant to disrupt the agreement. The authors—Nora Freeman Engstrom, David Freeman Engstrom, Jonah B. Gelbach, Austin Peters, and Aaron Schaffer-Neitz—acknowledge that prior scholarship has considered the potential harms of protective orders and the need for careful judicial scrutiny. Many commentators believe that judges are side-stepping the “good cause” standard. However, a lack of data has hindered efforts to assess the frequency of stipulated protective orders and the intensity of judicial review. Critics of secrecy have relied on anecdotal accounts and empirical studies with limited scope. This evidence has not convinced rulemakers that judges are departing from the requirements of Rule 26(c)(1). Proposed reforms therefore have failed to gain traction. Continue reading "Protecting the Public from Protective Orders"
Sep 19, 2024 Evan BernickConstitutional Law
Joel Alicea,
Constitutional Theory and the Problem of Disagreement, 173
U. Pa. L. Rev. __ (forthcoming, 2024), available at
SSRN (February 27, 2024).
Joel Alicea wants to make the world a better place with constitutional theory and thinks that you should, too. More specifically: In choosing how to interpret a constitution, you ought to consult moral views which you believe to be correct, while making room for widespread social practices which aren’t entirely consistent with those views. It’s a testament to Alicea’s intellect, prudence, and rhetoric that readers are likely to be persuaded. His paper, Constitutional Theory and the Problem of Disagreement, feels less like an argument than a friendly conversation from which truth gradually but inexorably emerges.
Call to mind Raphael’s The School of Athens, depicting Aristotle and Plato in conversation. Plato gestures up, Aristotle gestures down. Both philosophers are perfectionists who believe that politics should be organized around an objective account of human flourishing. But one has his head in the realm of Forms and the other takes a more grounded approach. Alicea follows Aristotle. Continue reading "Imperfectionist Constitutional Theory"
Sep 18, 2024 Ellen BublickTorts
Of the tens of thousands of reported civil cases in Westlaw’s torts database, would it surprise you that a mere 34 opinions in the set use the word “vulva”? Even then, the term is often mentioned only as a quote from a statute, regulation, or expert testimony, or used with reference to non-human animals (baby mink). 74 cases mention the term “oocyte or ovum.” 578 mention the word “vagina.” These small numbers exist alongside 5,954 published civil cases in the database that mention “rape” or “sexual assault.” Courts use terms related to male anatomy more often than their female analogues, but only two to three times more often.
Into this gap concerning bodies and sexuality, Professor Anita Bernstein has consciously “chosen to feel inspired by this silence in the discourse.” (P. 239.) If you are feeling squeamish already, I feel your pain. We law professors, judges and lawyers are a pretty staid bunch. When Bernstein first made her unabashed presentation about semen and products liability (in that order) to a packed audience of lawyers and law professors, I will admit to wincing just a bit. Until, that is, I thought more about the strength of Bernstein’s topic and her candor, as well as the importance of precise language when addressing it. In a world of AI and big data, euphemisms such as “privates” and “reproductive tissue” (some actual substitutes in opinions and scholarship) will prevent detection, understanding and study of legal subjects that relate to sexual anatomy. Worse still, the comfortable route of skipping unmentionable topics altogether neglects needed judicial and academic scrutiny. Continue reading "Mentioning the Unmentionable Parts of Tort Law: Responding to Silence with Discourse"
Sep 17, 2024 Atinuke AdediranCorporate Law
Are corporations responsible for addressing racial inequality? In a timely and compelling examination of corporate race relations during the civil rights movement and current corporate processes and decision-making on race, Gina-Gail S. Fletcher and H. Timothy Lovelace, Jr. argue in their article, Corporate Racial Responsibility, that corporations are responsible for addressing racial inequality because they have historically been inescapably involved in it.
The authors’ historical exploration of race and corporate relations is an important contribution to scholarship. The authors show that corporate engagement in race is not new. It extends back to the time of slavery and became much more extensive during the civil rights movement. As the authors document, sit-ins at hotels, restaurants, and other segregated businesses were catalysts for the civil rights movement.
Businesses were drawn to voluntary desegregation, which was woefully unsuccessful as evidenced by accounts in cities like Birmingham, Alabama and Atlanta, Georgia. It was not until the passage of Title II of the Civil Rights Act of 1964, mandating that businesses desegregate, that change began to occur. The authors explain that this is compelling evidence that mandates succeed while voluntary action, a form of corporate social responsibility, does not. Continue reading "Civil Rights Meets Corporate Governance"
Sep 16, 2024 Matt BodieWork Law
James D. Nelson,
Disestablishment at Work, 134
Yale L.J. __ (forthcoming, 2025), available at
SSRN (May 13, 2024).
Title VII’s legislative framework includes a prohibition against discrimination based on religion as well as race, sex, color, and national origin. Distinctively amongst these categories, however, religion is defined to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court seemed to set a low bar for Title VII’s accommodation mandate, defining an undue burden as anything more than “de minimis” costs. Compared to the colloquial understanding of the term, Hardison’s feeble definition seemed discordant with the textual meaning of “undue burden.” Indeed, it was not surprising when the Supreme Court unanimously rejected the de minimis approach in Groff v. DeJoy, 600 U.S. 447 (2023), redefining undue burden to mean the imposition of “substantial increased costs.”
There is more going on here than might appear at a glance, however. As James Nelson insightfully describes in Disestablishment at Work, the Supreme Court’s original “de minimis” standard endeavored to balance the principles of free exercise of religion(s) with the fear that too heavy a hand would infringe upon Establishment Clause principles. Now that Groff has upended the old equilibrium, courts must recalibrate to protect the interests of both the religious practitioner and their coworkers. Disestablishment at Work thoughtfully looks to the original compromise and its enforcement over the years to develop a set of deeper principles to guide the new framework. Continue reading "Moving Beyond “De Minimis” in Religious Accommodations at Work"
Sep 13, 2024 Sara MayeuxLegal History
Frequently I drink iced coffee at a local shop in my Tennessee neighborhood. I could pay with cash, but most often I hand over a credit card issued by a New York corporation (though the sign-up paperwork came from Utah), and later I pay the bill using funds in my checking account at a California bank (which funds I can also access with a Visa-branded debit card, which I could alternatively have used to buy the coffee). In the five minutes it takes to buy a drink in Nashville, both I and the vendor participate a web of financial transactions and legal agreements with banks, corporations, and sub-entities headquartered around the country, both of us potentially paying interest and fees at each node along the way.
How did routine purchases become so complicated? As meticulously chronicled in Plastic Capitalism, the way I pay in 2024 required decades of technological, legal, and policy change to become part of everyday life. The book is not merely a narration of the rise of credit cards, however, although that would be fascinating enough. Blending legal, political, and business history, Sean H. Vanatta uses the card industry as a case study in the eclipse of New Deal liberalism and the erosion of what Vanatta calls “the place-based regulatory order” (P. 292). Continue reading "The Rise of Credit Cards and the Fall of the New Deal Order"
